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M. J. M. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

December 13, 2019

M. J. M., Appellant
Texas Department of Family and Protective Services, Appellee


          Before Chief Justice Rose and Justices Triana and Smith


          Edward Smith, Justice

         M.J.M. appeals from an order terminating his parental rights to three children, arguing that the district court erred while conducting de novo review of the matter. See Tex. Fam. Code §§ 201.015(a). We will affirm.


         As relevant to this appeal, M.J.M. has three children with Rachel, [1] who voluntarily relinquished her parental rights to those children earlier in these proceedings, see id. § 161.001(b)(1)(K), and is not party to this appeal. According to M.J.M., the State first removed the children from their home when Rachel was involved in an altercation over a drug deal. Rachel concedes that when she cared for the children she would regularly engage in substance abuse and that M.J.M. would knowingly leave the children alone with her when she was too impaired to care for them.

         Case workers eventually returned the children to Rachel and allowed M.J.M. visitation on the condition that he obtain gainful employment, pay child support, and complete certain services recommended as a result of his psychological screening. The case workers subsequently reported that M.J.M. had participated in outpatient rehabilitation treatment but had failed to obtain employment, pay child support, or complete other recommended services.

         The State ultimately petitioned for termination of M.J.M.'s and Rachel's parental rights in Comal County district court, which referred the matter to an associate judge. See id. § 201.001 (allowing referral to associate judge if county commissioners have authorized employment of associate judges). The associate judge heard the matter on April 12, 2019. Counsel for M.J.M. asked for a continuance to allow M.J.M. additional time to comply with certain rehabilitation recommendations, explaining that M.J.M. had been incarcerated for child support arrearage for six months, allegedly making it difficult for him to comply. After reviewing the evidence and hearing closing statements from counsel, the associate judge denied the requested continuance and ruled from the bench, explaining to M.J.M.'s attorney:

I'm going to deny your client's request for an extension. I do find that the [State] has met its burden by clear and convincing evidence . . . as to the father under 161.001(1)(D), (E), and (O); and that it's in the best interest of all three children that both parents' parental rights be terminated.

See Tex. Fam. Code § 161.001(b)(1)(D) (knowingly placing or knowingly allowing child to remain in conditions that endanger physical or emotional well-being), (E) (engaging in conduct or knowingly placing child with persons who engage in conduct that endangers physical or emotional well-being), (O) (failing to comply with provisions of a court order delineating actions necessary for parent to obtain return of child).

         The associate judge then addressed counsel for each parent, relieving the attorneys of their respective court-appointed duties "except in the event of an appeal or a de novo [hearing], of which you both are aware of your time requirements"-a reference to the review authorized by Section 201.015 of the Family Code. That Section provides, "A party may request a de novo hearing before the referring court by filing with the clerk of the referring court a written request not later than the third working day after the date the party receives notice of . . . the substance of the associate judge's report . . . ." See id. § 201.015(a). Counsel for M.J.M confirmed, "I do anticipate that we're going to be having a de novo [sic] of this hearing."

         M.J.M. moved for de novo rehearing on April 22-six working days after the bench ruling and one day before the district court issued the written termination order reflecting that ruling. When the State objected to the motion as untimely, M.J.M. requested a modified order to: (1) correct a spelling error, (2) clarify one of the statutory bases for the termination, and (3) set aside the order to pay child support. The associate judge heard argument on M.J.M.'s motion to modify on May 10 and May 14 and then issued a modified order reflecting the requested revisions. The associate judge also denied M.J.M.'s oral request to "withdraw [the] ruling on termination predicate grounds that termination was in the best interest of the children, and PMC [permanent managing conservatorship] to the Respondent."[2]

         M.J.M. again moved for a de novo review by the referring court, still seeking to challenge the sufficiency of the evidence supporting the termination predicates and raising various other arguments regarding the associate judge's decisions while presiding over the case. At the hearing on that motion, the State moved to limit the scope of de novo review, [3] arguing that the first motion was untimely with respect to the termination itself and that the second was only timely with respect to the modifications to the termination order. M.J.M. objected, arguing that the rules require at least three days' notice and that the State's motion-filed the day of the hearing-did not comply with that requirement. Although the referring court initially declined to entertain the State's motion, it nevertheless adopted the State's position, explaining:

I will go ahead and rule in favor of the State regarding the issue of whether or not we are doing a de novo of the case in chief [i.e., the termination itself]. The answer is we are not. We're doing a de novo of the hearing that started on the 10th and ended on the 14th of May. . . . And I'm not going to address issues that would have been ...

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