In Re TS

191 S.W.3d 736, 2006 WL 1148154
CourtCourt of Appeals of Texas
DecidedMarch 30, 2006
Docket14-05-00284-CV
StatusPublished

This text of 191 S.W.3d 736 (In Re TS) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re TS, 191 S.W.3d 736, 2006 WL 1148154 (Tex. Ct. App. 2006).

Opinion

191 S.W.3d 736 (2006)

In the Interest of T.S., E.S., V.S.

No. 14-05-00284-CV.

Court of Appeals of Texas, Houston (14th Dist.).

March 30, 2006.

*737 Michelle Alies Stover, Angleton, Kim Richardson, Freeport, for appellants.

Kim Richardson, for Christina Sharp.

Courtney Gilbert, Trey David Picard, Angleton, for appellees.

Panel consists of Justices HUDSON, FROST, and SEYMORE.

OPINION

KEM THOMPSON FROST, Justice.

This is an appeal from a judgment terminating the parental rights of a mother and a father to three minor children. The presiding judge of the trial court referred the petition for termination of the parent-child relationships to an associate judge. Based on the jury's verdict, the associate judge recommended in her report that both parents' parental rights be terminated as to all three children. In adopting the associate judge's report, the presiding judge of the trial court determined that the parents had no right to appeal the associate judge's report because the parents did not object to the referral of this matter to the associate judge under section 201.005(c) of the Family Code. The presiding judge made this determination even though the parents had timely appealed the associate judge's report under sections 201.015 and 201.2042 of the Family Code. Based on this determination, the presiding judge of the trial court refused to hear the parents' appeal of the associate judge's report. We conclude that the failure to object under section 201.005(c) of the Family Code did not deprive the parents of their right to appeal the associate judge's report under sections 201.015 and 201.2042; therefore, we reverse the trial court's judgment and remand to the trial court so that the presiding judge can hear the parents' appeal of the associate judge's report.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellants Christina Sharp ("Christina") and Todd Sharp ("Todd") are the parents of three children, T.S., E.S., and V.S. The Brazoria County Children's Protective Services (hereinafter referred to as "CPS") removed the children from Christina and placed them in protective custody. CPS filed a petition seeking, among other things, to terminate the parent-child relationships for all three of the children. The presiding judge of the trial court referred the trial of this petition to an associate judge. The parties agree that the associate judge was appointed under section 201.201 of the Family Code. Christina and Todd did not object to having an associate judge preside at the jury trial in this matter. After the jury returned a verdict in favor of terminating Christina's and Todd's parental rights as to all the children, the associate judge issued a report in the form of a proposed judgment terminating their parental rights in accordance with the jury's verdict. This report gave Christina and Todd notice that, under section 201.015 of the Family Code, they had a right to appeal the associate judge's findings and recommendations. Within three days of their receipt of the associate judge's report, Christina and Todd each filed an appeal of that report.

*738 CPS filed a motion to set aside the appeals, asserting that, even though Christina and Todd had timely appealed the associate judge's report under sections 201.015 and 201.2042 of the Family Code, they had no right to appeal the associate judge's report because they did not object to the referral of this matter to the associate judge under section 201.005(c) of the Family Code. In this motion, CPS asked the presiding judge of the trial court to accept the associate judge's report without entertaining the appeals filed by Christina and Todd. After a hearing, the presiding judge granted CPS's motion to set aside Christina's and Todd's appeals, stating that their proper appellate avenue is to appeal to the court of appeals. Subsequently, Christina and Todd appealed to this court.

II. ISSUES PRESENTED

In addition to challenging the legal and factual sufficiency of the evidence supporting the jury's findings, Christina and Todd each assert in their respective first issues that, because they timely appealed the associate judge's report, the trial court reversibly erred in refusing to conduct an appeal under sections 201.015 and 201.2042 of the Family Code.

III. ANALYSIS

A. Does section 201.005 of the Texas Family Code deprive Christina and Todd of their right to appeal under sections 201.015 and 201.2042?

The record reflects that Christina and Todd timely perfected appeals of the associate judge's report to the referring court under sections 201.015 and 201.2042 of the Family Code. CPS does not dispute that Christina's and Todd's appeals were timely and properly perfected under these sections; rather, CPS asserts that these sections do not apply. Although it has not asserted this argument on appeal, in the trial court, CPS asserted in its motion, and the trial court agreed, that a party who fails to timely object to the referral to an associate judge under section 201.005(c) of the Family Code waives his right to appeal to the referring court and must appeal directly to the court of appeals. See TEX. FAM.CODE ANN. §§ 201.005, 201.015 (Vernon 2002). In pertinent part, section 201.005 provides:

(b) Unless a party files a written objection to the associate judge hearing a trial on the merits, the judge may refer the trial to the associate judge. A trial on the merits is any final adjudication from which an appeal may be taken to a court of appeals.
(c) A party must file an objection to an associate judge hearing a trial on the merits or presiding at a jury trial not later than the 10th day after the date the party receives notice that the associate judge will hear the trial. If an objection is filed, the referring court shall hear the trial on the merits or preside at a jury trial.

TEX. FAM.CODE ANN. § 201.005. In the trial court, CPS asserted that, under section 201.005(c), Christina and Todd had ten days to object to the associate judge hearing a trial on the merits or presiding at a jury trial. See id. According to CPS's motion, section 201.005(b) defines "a trial on the merits" as "any final adjudication from which an appeal may be taken to a court of appeals." See id. CPS asserted in the trial court that, based on this definition, by failing to object to the associate judge's hearing "a trial on the merits," Christina and Todd agreed that the associate judge's ruling would be final and appealable only to the court of appeals. There are several deficiencies in this argument.

*739 First, the language in section 201.005 upon which CPS relies appears to apply only to bench trials. The statute states that parties must file a timely objection "to an associate judge hearing a trial on the merits or presiding at a jury trial." See id. In this case, the associate judge presided at a jury trial; she did not hear the merits of the case in a bench trial. Therefore, the language upon which CPS relies appears not to apply.

Even if the language in question applied to an associate judge's report following a jury trial, it does not state that the parties must appeal directly to the court of appeals without appealing to the referring court.

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Vaughan v. Vaughan
805 S.W.2d 913 (Court of Appeals of Texas, 1991)
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In the Interest of T.S., E.S., V.S.
191 S.W.3d 736 (Court of Appeals of Texas, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
191 S.W.3d 736, 2006 WL 1148154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ts-texapp-2006.