in the Interest of N v. and E.E., Jr., Children

554 S.W.3d 217

• Court: Court of Appeals of Texas
• Decided: June 29, 2018
• Docket: 07-18-00060-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-18-00060-CV ________________________

IN THE INTEREST OF N.V. AND E.E., JR., CHILDREN

On Appeal from the 237th District Court Lubbock County, Texas Trial Court No. 2015-515,107; Honorable Les Hatch, Presiding

June 29, 2018

OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

This appeal concerns the bounds of a de novo hearing before a referring court,

pursuant to section 201.015(f) of the Texas Family Code, in the context of an involuntary

termination proceeding originally heard by an associate judge. See TEX. FAM. CODE ANN.

§ 201.015(f) (West Supp. 2017) (providing that a referring court “shall hold a de novo

hearing not later than the 30th day after the date on which the initial request for a de novo hearing was filed with the clerk of the referring court.”1 Appellant, C.L., appeals from the

trial court’s order terminating her parental rights to her two children, N.V. and E.E., Jr.2

By a sole issue, she maintains the trial court erroneously denied her a de novo hearing

because it did not require the Texas Department of Family and Protective Services to

meet its burden of proving the statutory grounds for termination required by section

161.001(b)(1) and (b)(2). § 161.001(b)(1), (b)(2). Because we find the referring court did

conduct a section 201.015(f) de novo hearing, as required by law, we affirm.

BACKGROUND

C.L. suffers from several mental health issues and experiences seizures and

memory loss. As a child, she was subjected to abuse and spent most of her life in foster

care. She has a daughter, N.V., and a younger son, E.E., Jr. The Department has been

involved in numerous investigations in which it determined there was reason to believe

that C.L. had abused N.V.

In August 2014, C.L. was at a laundromat when N.V. fell and hit her head on a

table used for folding laundry. Concerned with the head injury, C.L. took N.V. to the

hospital. During N.V.’s examination, hospital staff noticed red marks and bruises on

certain areas of N.V.’s body. Because of this incident, the Department opened an

investigation that resulted in a non-emergency removal of both children from the home.

The children were placed with relatives and personal friends and eventually, in foster

1 All further references to “§” or “section” are to the Texas Family Code unless otherwise

designated. 2 To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017). See also TEX. R. APP. P. 9.8(b).

2 care. In March of 2015, the Department initiated termination proceedings. C.L.

subsequently admitted she had inappropriately disciplined N.V. with a belt and she was

convicted of injury to a child.3 Her punishment was assessed at ten years confinement

in the Texas Department of Criminal Justice, suspended in favor of seven years of

community supervision.

After a very lengthy bench trial before an associate judge, numerous witnesses,

including C.L., testified concerning the allegations contained in the Department’s

termination petition. Based on the evidence presented, the associate judge found clear

and convincing evidence to terminate C.L.’s parental rights to both of her children based

on section 161.001(b)(1)(D) (allowing a child to remain in conditions or surroundings

which endanger the physical or emotional well-being of the child), (E) (engaging in

conduct of placing a child with persons who engage in conduct which endangers the

physical or emotional well-being of the child), (L) (being criminally responsible for serious

injury of a child that would constitute the criminal offense of injury to a child), and on (b)(2)

(best interests). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (L), (b)(2) (West Supp.

2017).

C.L. properly requested a section 201.015(f) de novo hearing before the referring

court. See § 201.2042 (West 2014). In her written request, she specifically challenged

each ground on which her parental rights were terminated, as well as the associate

judge’s best interest finding.

3 See TEXAS PENAL CODE ANN. § 22.04 (West Supp. 2017).

3 During the section 201.015(f) de novo hearing, over C.L.’s objection, the trial court

announced that it would be considering the record from the previous hearing before the

associate judge. Based on that announcement, the Department rested its case without

presenting any new evidence. C.L. then presented numerous witnesses challenging the

termination order. Specifically, she provided testimony from several mental health

providers regarding her mental health issues and her treatment goals. She also provided

witnesses who testified positively regarding her stable living arrangement, her

employment status, and the various services she was working. C.L. also testified about

her services, counseling, and employment status. At the conclusion of the hearing, based

on all the evidence presented, the trial court entered a final order terminating C.L.’s

parental rights to both of her children.

On appeal to this court, C.L. does not directly challenge the sufficiency of the

evidence to support any of the grounds for termination or the trial court’s best interest

finding—instead, she challenges the procedure employed by the referring court in

considering the evidence presented before the associate judge in the original hearing.

Thus, our analysis is limited to C.L.’s issue that she was denied a proper section

201.015(f) de novo hearing and that the Department failed to meet its burden of proof to

support the termination of her parental rights.

STANDARD OF REVIEW

The natural right existing between parents and their children is of constitutional

dimension. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed.

2d 599 (1982). See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently,

termination proceedings are strictly construed in favor of the parent. In the Interest of

4 E.R., 385 S.W.3d 552, 563 (Tex. 2012). Parental rights, however, are not absolute, and

it is essential that the emotional and physical interests of a child not be sacrificed merely

to preserve those rights. In the Interest of C.H., 89 S.W.3d 17, 26 (Tex. 2002). The Due

Process Clause of the United States Constitution and section 161.001 of the Texas

Family Code require application of the heightened standard of clear and convincing

evidence in cases involving involuntary termination of parental rights. See In the Interest

of E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In the Interest of J.F.C., 96 S.W.3d 256, 263

(Tex. 2002).

ANALYSIS

Generally, a trial de novo is defined as “[a] new trial on the entire case . . .

conducted as if there had been no trial in the first instance.” Willacy Cty. Appraisal Dist.

v. Sebastian Cotton & Grain, Ltd., No. 16-0626, 2018 Tex. LEXIS 351, at *41 (Tex. 2018)

(relying on a definition from BLACK’S LAW DICTIONARY (10th ed. 2014)). However, contrary

to this definition, in cases involving termination of parental rights, section 201.015(c)

statutorily dictates that in a section 201.015(f) de novo hearing, the “referring court may

also consider the record from the hearing before the associate judge . . . .” This statutory

distinction is significant because, as explained hereinbelow, that has not always been the

case.

Relying on Attorney General v. Orr, 989 S.W.2d 464, 467 (Tex. App.—Austin 1999,

no pet.), C.L. argues the trial court failed to treat her hearing as a new and independent

action by excusing the Department from the requirement of meeting its burden of proof.

In this case, at the commencement of the hearing, the trial court, relying on section

201.015(c), reminded the parties that it intended to rely on the transcript from the hearing

5 before the associate judge. The trial court also referenced a case pending in this court

at that time involving the identical issue of whether the parent had been denied a proper

section 201.015(f) de novo hearing of a termination order, based on section 201.015(c).

See In the Interest of X.H., No. 07-16-00410-CV, 2017 Tex. App. LEXIS 3993, at *2 (Tex.

App.—Amarillo May 2, 2017, pet. denied) (mem. op.) (rejecting the appellant’s argument

that she had been denied a proper section 201.015(f) de novo review). C.L.’s counsel

objected to proceeding in that fashion and requested that the Department be required to

present its evidence from the beginning of the case. The trial court denied the request.

In Orr, a de novo hearing was held on a child support issue. Orr, 989 S.W.2d at

466. The court noted that a trial de novo is not a traditional appeal, “but a new and

independent action characterized by all the attributes of an original civil action.” Id. at

467. If the party with the burden of proof before the associate judge prevailed, that party

was still required to carry its burden of proof in a de novo hearing before the referring

court. Id. The filing of a notice of appeal to the referring court cut off the earlier

proceedings and the referring court could not rely on what had occurred before the

associate judge. Id. at 467-468.

As the Department points out, C.L.’s reliance on Orr is misplaced. Orr was decided

prior to the effective date of the 1999 amendment to section 201.015(c) which added the

statutory provision that “[t]he [referring] court may also consider the record from the

hearing before the associate judge, including the charge to and verdict returned by a jury,

if the record was taken by a court reporter.” See Act of May 17, 1999, 76th Leg., R.S.,

ch. 1302, § 10, 1999 Tex. Gen. Laws 4448, 4450. Therefore, since the 1999 amendment,

a referring court has been statutorily authorized to also consider the record from the

6 hearing before the associate judge in determining whether the Department met its burden

of proof. See § 201.015(c).

C.L.’s argument would merit consideration but for the changes made by the

Legislature to the statute. In 1987, former section 54.012(e) of the Family Code provided

simply as follows: “[o]n appeal to the referring court, the parties may present witnesses

as in a hearing de novo on the issues raised in the appeal.” See Act of June 1, 1987,

70th Leg., R.S., ch. 674, § 3.02, 1987 Tex. Gen. Laws 2507, 2520. When the Family

Code was recodified in 1995, section 54.012(e) was renumbered as section 201.015(c);

the language, however, remained the same. See Act of April 6, 1995, 74th Leg., R.S.,

ch. 20, § 1, 1995 Tex. Gen. Laws 113, 241. The decision in Orr was handed down based

on the statute as it existed in 1995, which contained the same language as in 1987 when

there was no provision for consideration by the referring court of the record from the

preceding trial before the associate judge.

As previously noted, in 1999, the Legislature amended section 201.015(c) to add

that the referring court “may also consider the record from the hearing before the

associate judge.” See Act of May 17, 1999, 76th Leg., R.S., ch. 1302, § 10, 1999 Tex.

Gen. Laws 4448, 4450. Section 201.015(c) was again amended in 2007 to add and

delete certain words and phrases not relevant to the issue before us. See Act of May 23,

2007, 80th Leg., R.S., ch. 1235, § 7, 2007 Tex. Gen. Laws 4150, 4152. Finally, in 2009,

section 201.015(c) was again amended to delete the phrase “if the record was taken by

a court reporter.” See Act of May 28, 2009, 81st Leg., R.S., ch. 767, § 25, 2009 Tex.

Gen. Laws 1938, 1945. Accordingly, the statute in effect at the time of C.L.’s section

201.015(f) de novo hearing, which is the statute currently in effect, provides as follows:

7 [i]n the de novo hearing before the referring court, the parties may present witnesses on the issues specified in the request for hearing. The referring court may also consider the record from the hearing before the associate judge.

This court has upheld a referring court’s termination order even when the

Department did not present any new evidence at the section 201.015(f) de novo hearing

and the referring court relied on testimony from the hearing before the associate judge.

See In the Interest of N.M., No. 07-16-00439-CV, 2017 Tex. App. LEXIS 4219, at *3 (Tex.

App.—Amarillo May 9, 2017, pet. denied) (mem. op.); In the Interest of X.H., 2017 Tex.

App. LEXIS 3993, at *2. See also In the Interest of N.T., 335 S.W.3d 660, 669 (Tex.

App.—El Paso 2011, no pet.) (noting that in a section 201.015(f) de novo review, the

Family Code allows the referring court to consider the record from the hearing before the

associate judge); In re R.R., 537 S.W.3d 621, 624 (Tex. App.—Austin 2017, no pet.)

(noting that occasionally, parties do not call witnesses to testify at the section 201.015(f)

de novo hearing and the referring court relies only on the evidence produced in the

hearing before the associate judge).

Section 201.015(c) provides that parties may present witnesses and the referring

court may also consider the record from the hearing before the associate judge.

(Emphasis added). In both instances, the provision is conditional—a party may but is not

required to present witnesses, and the referring court may but is not required to consider

the record from the hearing before the associate judge. In other words, “section 201.015

does not require the Department, at a de novo hearing, to reproduce evidence it

previously produced at the underlying hearing or produce additional evidence” if the trial

court is willing to consider the record from the hearing before the associate judge. In re

8 C.O., No. 04-17-00175-CV, 2018 Tex. App. LEXIS 2551, at *8-9 (Tex. App.—San Antonio

April 11, 2018, no pet.) (mem. op.) (noting that section 201.015(c) does give a party the

option to present witnesses should the party decide to do so). Therefore, in the case

before us, the trial court did not err in deciding to consider the record from the hearing

before the associate judge.

C.L. also relies on Godwin v. Aldine Indep. Sch. Dist., 961 S.W.2d 219, 221 (Tex.

App.—Houston [1st Dist.] 1997, pet. denied),4 relied on by Orr, for the proposition that the

Department still had to carry its burden of proof at the section 201.015(f) de novo hearing.

She argues the Department’s decision not to present any new evidence effectively shifted

the burden of proof to her to prove why her parental rights should not have been

terminated. While we disagree with that proposition, we note that Godwin involved a de

novo appeal from a decision on delinquent ad valorem taxes which had nothing to do with

a section 201.015(f) de novo hearing. Accordingly, we find it inapplicable to the case

before us and we conclude that C.L. was not denied a proper section 201.015(f) de novo

hearing. Her sole issue is overruled.

CONCLUSION

The trial court’s order terminating C.L.’s parental rights to N.V. and E.E., Jr. is

affirmed.

Patrick A. Pirtle Justice

4 The original judgment was withdrawn, and a corrected judgment was issued on motion for rehearing.