IN THE INTEREST OF E.O., A CHILD IN RE M.M., Relator
Appeal from the 300th District Court Brazoria County, Texas
Trial Court Case No. 93697-F
Original Proceeding on Petition for Writ of Mandamus
consists of Justices Kelly, Hightower, and Countiss.
RICHARD HIGHTOWER JUSTICE
M.M. appeals after having her parental rights terminated.
M.M. has also filed an original proceeding for mandamus
relief that is the same relief sought in her appeal. We
therefore consolidated the two appellate proceedings. We will
reverse the termination order and remand the case in the
appeal, and we will dismiss as moot the original proceeding.
trial was held on the Department of Family and Protective
Services' petition to terminate M.M.'s parental
rights to her child E.O. before an associate judge, who made
an oral associate judge's report of termination of
M.M.'s parental rights. Before a final order was entered,
M.M. filed a notice of appeal. M.M. also filed a timely
request for a de novo hearing before the district judge.
of her premature notice of appeal, M.M. moved to abate the
appeal in this court so that the district judge could hold
the de novo hearing and enter a final order. Because this
court had not ruled on the motion to abate in the pending
appeal, the district judge declined to proceed with the de
novo hearing without a ruling or instruction from this court.
Thereafter, and still before this court had ruled on the
motion to abate and before holding a de novo hearing, the
district judge siged a final order of
termination. A few days later, and before receiving
notice of the final order, this court abated the appeal for
thirty days so that the district judge could sign a final
order. M.M. had the trial court clerk set her de novo
hearing, and she also filed her original proceeding for
mandamus relief requesting that we order the district judge
to vacate the final order and to hold the de novo hearing.
Department filed a response to M.M.'s petition for writ
of mandamus, and this court then consolidated the two
appellate proceedings and allowed the parties' mandamus
briefs to serve as their appellate briefs.
court may refer to an associate judge "any aspect of a
suit over which the court has jurisdiction" under the
Family Code. Tex. Fam. Code § 201.005(a). When a matter
is referred to an associate judge, the associate judge may,
among other things, conduct a hearing, hear evidence, make
findings of fact, and recommend an order to be rendered.
Id. § 201.007. When an associate judge makes a
recommendation or temporary order, any party may request a
"de novo hearing before the referring court,"
specifying the issues that will be presented to the referring
court. Id. § 201.015(a), (b). The de novo
hearing is mandatory when properly requested. Id.
§ 201.015(f) ("The referring court . . . shall hold
a de novo hearing . . . ."); Phagan v. Aleman,
29 S.W.3d 632, 635 (Tex. App.-Houston [1st Dist] 2000, no
pet.); see also In re S.S.R., No. 13-18-00576-CV,
2019 WL 1290659, at *2 (Tex. App.-Corpus Christi-Edinburg
Mar. 21, 2019, no pet.); Harrell v. Harrell, 986
S.W.2d 629, 631 (Tex. App.-El Paso 1998, no writ).
referring court errs if it fails to hold a properly requested
de novo hearing and signs a final order of termination.
See S.S.R., 2019 WL 1290659, at *2;
Harrell, 986 S.W.2d at 631. The failure to hold such
a hearing is presumed harmful. Phagan, 29 S.W.3d at
635; see also In re R.A.O., 561 S.W.3d 704, 710-11
(Tex. App.-Houston [14th Dist.] 2018, no pet.). We therefore
reverse that part of the final order terminating M.M.'s
parental rights and remand this case for a de novo hearing.
See S.S.R., 2019 WL 1290659, at *2; R.A.O.,
561 S.W.3d at 711; Harrell, 986 S.W.2d at 631-32.
The part of the final order terminating N.O.'s parental
rights is unaffected by this reversal.
reverse the part of the trial court's final order
terminating M.M.'s parental rights and remand this case
for a de novo hearing. We ...