in the Interest of J.L., E.M., and D.M., Jr., Children

• Court: Court of Appeals of Texas
• Decided: September 3, 2020
• Docket: 02-20-00114-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-20-00114-CV ___________________________

IN THE INTEREST OF J.L., E.M., AND D.M., JR., CHILDREN

On Appeal from County Court at Law No. 2 Wichita County, Texas Trial Court No. 13296-JR-F

Before Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

This is an ultra-accelerated appeal1 in which L.R. (Mother) appeals from the trial

court’s order terminating her parental rights to the children involved in this case—J.L.,

E.M., and D.M., Jr. In two issues, she argues that the associate judge who presided

over the contested final termination hearing erred by failing to provide a court reporter

for the hearing and that the evidence is legally and factually insufficient to support a

finding that the termination was in the children’s best interest. Because the associate

judge did not provide a court reporter to record the proceedings, we reverse the

termination order and remand the case for a new trial.

II. BACKGROUND

The Department of Family and Protective Services (the Department) sued to

terminate Mother’s parental rights to the children. An associate judge presided over

the final hearing. See Tex. Fam. Code Ann. §§ 201.005, .007. Mother’s attorney

appeared at the hearing,2 but Mother did not. Rather than provide a court reporter to

1 See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal from judgment terminating parental rights, so far as reasonably possible, within 180 days after notice of appeal is filed). 2 Mother’s court-appointed trial attorney was allowed to withdraw after filing the notice of appeal, and a new attorney was appointed to represent Mother on appeal.

2 make a record of the hearing, the associate judge made an electronic recording of the

proceedings.

Based on the evidence presented at the hearing, Mother’s parental rights were

terminated. The decree of termination incorporated the associate judge’s finding by

clear and convincing evidence that terminating Mother’s parental rights was in each

child’s best interest and its finding that clear and convincing evidence had established

the statutory grounds for termination under Texas Family Code Subsections

161.001(b)(1)(N), 161.001(b)(1)(O), and 161.001(b)(1)(P). See id. § 161.001(b)(1)(N),

(O), (P), (b)(2). This appeal followed.

III. DISCUSSION

Under the Texas Family Code, when an associate judge presides over a hearing

that is neither a jury trial nor a contested final termination hearing, the record may be

preserved by a court reporter provided by a party, the associate judge, or the referring

court; alternatively, “in the absence of a court reporter or on agreement of the parties,”

the record may be preserved by some other method approved by the judge, such as an

electronic recording. Id. § 201.009(a), (b), (c). But when an associate judge presides

over a jury trial or a contested final termination hearing, “[a] court reporter is required to

be provided,” and no other means of preserving the record is permitted. Id. § 201.009(a)

(emphasis added).

3 Here, the associate judge presided over a contested final termination hearing but

did not provide a court reporter to make a record of the proceedings.3 As Mother

argues in her brief, Section 201.009(a) “makes no exception for the requirement of a

court reporter under the facts of the case at bar.”

The Department concedes that for the contested final termination hearing in this

case, the plain language of Section 201.009 required a court reporter to be provided and

“d[id] not authorize the associate judge to preserve the record by other means in the

absence of a court reporter or even on the agreement of the parties.” The Department

further concedes that “[b]ecause a court reporter was not provided as required by

[S]ection 201.009, the appellate record does not contain a reporter’s record necessary

to enable review of L.R.’s challenge to the legal and factual sufficiency of the evidence

to support the best interest finding” and that “due to the failure to provide a court

reporter in violation of [S]ection 201.009(a), (c), and the consequent lack of a reporter’s

record to enable appellate review of evidence sufficiency grounds, the proper remedy

is to remand the case for a new trial.”

We agree with both parties. An appellant complaining of legal or factual

insufficiency of the evidence cannot meet its burden on appeal without a proper record.

3 Additionally, it appears that the associate judge allowed the Department’s attorney to withdraw all of its trial exhibits to keep in the District Attorney’s files without requiring the Department to leave a copy of the exhibits in the clerk’s files. See Tex. R. App. P. 13.1(c); Tex. R. Civ. P. 75a, 75b(a).

4 Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex. 1968). Here, Section 201.009

required the provision of a court reporter and prohibited the associate judge from

preserving the record by electronic means. Tex. Fam. Code Ann. § 201.009(a), (c). The

associate judge was thus required to provide a court reporter to make a record of the

proceedings but failed to do so. See id. As a result of the associate judge’s error, Mother

does not have a proper record of the proceedings. Accordingly—and given the

Department’s concession—we sustain Mother’s first issue. See id.; cf. In Interest of W.G.,

No. 02-16-00312-CV, 2017 WL 3634007, at *2 (Tex. App.—Fort Worth Aug. 24, 2017,

orig. proceeding) (mem. op.) (applying Texas Family Code Section 157.161, which

requires a record of an enforcement action hearing except in certain cases, to grant

mandamus relief from a contempt order when no reporter’s record had been made of

the contempt hearing, and recognizing that Section 201.009 requires a court reporter

when an associate judge presides over a jury trial or a final termination hearing); In re

Carlton, No. 09-07-241-CV, 2007 WL 1793765, at *1 (Tex. App.—Beaumont June 21,

2007, orig. proceeding) (per curiam) (mem. op.) (applying Section 157.161, holding that

the unintelligible tape recording of an enforcement hearing was tantamount to no

record, and granting habeas relief on the basis that the relator had been deprived of

statutorily required record of the contempt hearing). Because this issue is dispositive,

we do not address Mother’s second issue. See Tex. R. App. P. 47.4.

5 IV. Conclusion

Having sustained Mother’s first issue, which is dispositive, we reverse the trial

court’s termination order, and we remand the case for further proceedings.

/s/ Dana Womack

Dana Womack Justice

Delivered: September 3, 2020