in the Interest of J. G. and J. G., Children ( 2018 )

NO. 12-18-00111-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 273RD
IN THE INTEREST OF J.G.
§ JUDICIAL DISTRICT COURT
AND J.G., CHILDREN
§ SABINE COUNTY, TEXAS
PER CURIAM OPINION AND ORDER
R.G. appeals from a judgment terminating her parental rights to her children, J.G. and
J.G.2. The preliminary question presented by this appeal is whether R.G. is entitled to a new
trial because portions of the reporter’s record were destroyed during Hurricane Harvey. We have
determined that R.G. is not entitled to a new trial, and order briefing on the merits of the case.
BACKGROUND
R.G. is the mother of J.G., J.G.2, M.D., and M.D.2. On November 17, 2016, the Texas
Department of Family and Protective Services (the Department) filed an original petition for
protection of the four children, for conservatorship, and for termination of R.G.’s parental rights
to the four children. The Department also sought termination of the parental rights of the
children’s fathers. The proceeding regarding M.D. and M.D.2 was later severed from the case
involving J.G. and J.G.2 and is unrelated to this appeal. Neither father is a party to this appeal.
The Department was appointed temporary sole managing conservator of J.G. and J.G.2.
At the conclusion of a trial on the merits, the jury found, by clear and convincing evidence, that
R.G. engaged in one or more of the acts or omissions necessary to support termination of her
parental rights under subsections (D), (E), and (O) of Texas Family Code Section 161.001(b)(1).
The jury also found that termination of the parent-child relationship between R.G., J.G., and
J.G.2 was in the children’s best interest. Based on these findings, the trial court ordered that the
parent-child relationship between R.G., J.G., and J.G.2 be terminated.
R.G. appealed the termination of her parental rights to her children J.G. and J.G.2. The
reporter’s record was originally due on May 14, 2018. On May 15, the Clerk of this Court
notified the reporter, Ms. Mickey Gisclar, that the record was past due and gave Ms. Gisclar until
May 24 to file the record. On May 25, we again notified Ms. Gisclar that the record was past
due and granted until June 3 to file the record. On June 5, Ms. Gisclar filed a motion for
extension of time to file the reporter’s record, which we granted to June 8. On June 15, this
Court set a final deadline of June 22 for filing the record. Ms. Gisclar filed five volumes of the
record on June 18, which consisted of a master index, the December 18, 19, and 20, 2017 jury
trial, and the exhibits volume.
On June 19, R.G.’s counsel notified Ms. Gisclar that the record for hearings conducted on
December 2, 2016, January 11, 2017, April 12, 2017, May 10, 2017, June 2, 2017, July 12, 2017,
and July 27, 2017 had not been submitted. On July 5, counsel again contacted Ms. Gisclar,
noting that she spoke with counsel’s staff on June 20 and indicated that she had records for
several of the hearings mentioned in the June 19 letter, but that no records had been filed. On
July 9, Ms. Gisclar filed a supplemental reporter’s record, which contained hearings from July 27
and November 8, 2017. That same day, R.G. filed a request for preparation of a complete
reporter’s record with this Court, which stated that no record had been filed or received for the
other hearings identified in the June 19 letter to Ms. Gisclar. This Court granted R.G.’s request
and ordered Ms. Gisclar to file a supplemental reporter’s record on or before July 19. On July
20, we notified Ms. Gisclar that the supplemental reporter’s record was past due and granted
until July 23 to file the supplemental record.
On July 23, this Court received correspondence from Ms. Gisclar, in which she explained
that her home flooded during Hurricane Harvey and some of her records were lost. She stated
that the lost records included the December 2, January 11, April 12, May 10, June 2, and July 12
hearings requested by R.G.’s counsel.
Accordingly, we ordered R.G. to file a brief addressing whether (1) without R.G.’s fault,
a significant portion of the record has been lost or destroyed and, if so, whether the missing
portion of the record is necessary to the appeal’s resolution, (2) the missing portions of the
record can be replaced by stipulation or agreement of the parties, and (3) R.G. is entitled to a
new trial under Texas Rule of Appellate Procedure 34.6(f). We also ordered the Department to
2
file a reply brief. We have received both briefs and must determine whether a new trial is
required by Rule 34.6(f) of the Texas Rules of Appellate Procedure.
LOST REPORTER’S RECORD
In two issues, R.G. argues that the reporter’s record for the preliminary or permanency
hearings lost in Hurricane Harvey cannot be replaced by the parties’ agreement or by the trial
court, and that she is entitled to a new trial. However, the Department contends that the
preliminary hearings are not necessary to the appeal’s resolution, and that any complaints
regarding temporary hearings or orders are rendered moot by a final termination judgment.
Applicable Law
An appellant is entitled to a new trial under the following circumstances:
(1) if the appellant has timely requested a reporter’s record;
(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the court
reporter’s notes and records has been lost or destroyed or—if the proceedings were electronically
recorded—a significant portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or destroyed
exhibit, is necessary to the appeal’s resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be replaced by
agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of
the parties or with a copy determined by the trial court to accurately duplicate with reasonable
certainty the original exhibit.
TEX. R. APP. P. 34.6(f).
A new trial is required when the missing record is necessary to the appeal’s resolution.
Osuch v. State, 976 S.W.2d 810, 811-12 (Tex. App.–Houston [1st Dist.] 1998, no pet.)
(concluding a destroyed videotape of the driver performing field sobriety tests was “necessary to
the appeal’s resolution” and the defendant was entitled to a new trial because he challenged
whether a custodial interrogation occurred during his performance of the tests). The provision in
Rule 34.6 requiring an appellant to show that the missing portion of the record is necessary to her
appeal is essentially a requirement that the appellate court perform a harm analysis. Nava v.
State, 415 S.W.3d 289, 306 (Tex. Crim. App. 2013) (citing Routier v. State, 112 S.W.3d 554,
571 (Tex. Crim. App. 2003)). If the missing portion of the record is not necessary to the appeal’s
resolution, then the loss of that portion of the record is harmless and a new trial is not required.
3
See Routier, 112 S.W.3d at 571-72; Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999).
A suggestion by an appellant that the destroyed portion of the reporter’s record potentially assist
her on appeal, without more, does not make the missing portions of the record necessary to the
appeal’s resolution. See Routier, 112. S.W.3d at 571. Finally, we resolve any reasonable doubt
in the appellant’s favor. Id. at 570.
Analysis
The record demonstrates that R.G. timely requested the reporter’s record and, through no
fault of her own, portions of the record have been lost or destroyed. Moreover, R.G. and the
Department agree that the lost or destroyed reporter’s records of preliminary and permanency
hearings cannot be replaced by agreement of the parties. Neither parties’ appellate counsels
were the parties’ trial counsels. Accordingly, we agree that the lost portions of the reporter’s
record cannot be replaced by agreement of the parties. Therefore, the only issue is whether R.G.
is entitled to a new trial under Rule 34.6(f) of the Texas Rules of Appellate Procedure.
R.G. has the burden to demonstrate that the missing portions of the reporter’s record are
necessary to the resolution of her appeal. In her brief addressing her entitlement to a new trial,
R.G. specifically mentions the hearings of April 12, 2017, June 2, 2017, and July 12, 2017.
According to the trial court’s docket sheet, the April 12 hearing involved matters such as R.G.’s
failure to take drug tests. At trial, R.G.’s appointed counsel attempted to introduce two
documents evidencing drug test results from M.D.2 and J.G., which showed negative results
when the Department’s tests yielded positive results. The Department objected on hearsay
grounds, arguing that the results were not authenticated without a business records affidavit.
R.G.’s counsel responded that the results were filed with the clerk’s office in April, without
objection, and were self-authenticating. Additionally, counsel believed the results were offered
at the April 12 hearing, at which she was not present, but she could not confirm that they were
admitted as exhibits at that hearing. The children’s attorney ad litem informed the court that she
did not recall the results being admitted into evidence at the April 12 hearing, but could not
“swear to that.” The two documents are included in the clerk’s record, are file-marked April 12,
2017, are certified by the Sabine County District Clerk, and do not reflect an exhibit sticker or
other such marking evidencing their admission at the April 12 hearing. The trial court sustained
the Department’s objection and excluded the results from admission at trial. Accordingly, R.G.
contends that because her counsel cannot review the April 12 hearing transcript to determine
4
whether the documents were admitted into evidence, any possible argument that they were
properly admitted in April is foreclosed.
We first note that the document regarding M.D.2 is not pertinent to the present
proceeding because he is not a subject of this appeal. We also note that R.G. testified at trial that
she had the children drug tested and the results were negative. Even so, assuming the test results
were admitted at the April 12 hearing, their admission at trial was not automatic. For instance,
testimony from a prior hearing or trial cannot be considered in a subsequent proceeding unless a
transcript of that testimony is properly authenticated and entered into evidence. Guyton v.
Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.). Nor may a
trial court take judicial notice of the truth of factual statements and allegations contained in the
pleadings, affidavits, or other documents in the file. Id.; see B.L.M. v. J.H.M., III, No. 03-14-
00050-CV, 2014 WL 3562559, at *11-13 (Tex. App.—Austin July 17, 2014, pet. denied) (mem.
op.) (sustaining complaint that trial court improperly took judicial notice of prior testimony,
evidence, and factual assertions from earlier hearings and from the court’s files that were not
offered and admitted into evidence at termination trial).1 Thus, the drug test results were not
automatically admissible by virtue of being admitted at the April 12 hearing, if they were so
admitted. See Guyton, 332 S.W.3d at 693; see also In re C.H.C., 396 S.W.3d 33, 56 (Tex.
App.—Dallas 2013, no pet.); B.L.M., 2014 WL 3562559, at *11-13; In re M.B.D., 344 S.W.3d
1, 3 (Tex. App.—Texarkana 2011, no pet.) (trial court could not consider evidence from hearings
on temporary orders when reaching final order). Accordingly, we cannot conclude that the
missing April 12 hearing is necessary to the appeal’s resolution. See Routier, 112 S.W.3d at
571-72.
Regarding the June 2 and July 12 hearings, R.G. raises a question as to whether she was
properly admonished on the dangers of representing herself at trial. The docket sheet indicates
that the trial court granted R.G.’s original counsel’s motion to withdraw at a hearing on May 10
and the next permanency hearing was reset for June 2. At the June 2 hearing, R.G. appeared pro
se. The trial court’s docket sheet indicates that the father of M.D. and M.D.2 was appointed
permanent managing conservator at that hearing and the trial court advised R.G. that the order
was appealable. The docket sheet further indicates that at the July 12 permanency review
1
In B.L.M., the judgment was affirmed because the evidence was sufficient regardless of the trial court’s
erroneous taking of judicial notice. B.L.M. v. J.H.M., III, No. 03-14-00050-CV, 2014 WL 3562559, at *13-20
(Tex. App.—Austin July 17, 2014, no pet.) (mem. op.).
5
hearing, the trial court “discussed again the serious matter of a trial [without] an attorney and
encouraged [R.G.] to request court to appoint counsel if she was indigent[,]” but that R.G. had
not made the suggested request and previously advised the trial court that she is not indigent and
would hire an attorney. On August 11, the trial court appointed an attorney ad litem to assist
R.G. if she requested and, on September 6, granted newly appointed counsel’s motion for
continuance.
R.G. maintains that nothing indicates she was admonished on the issue of self-
representation at the June 2 hearing. She further notes that she was not present at a subsequent
November 8 hearing and, although her appointed counsel appeared, the trial court’s order
specifically appointed counsel to assist R.G. upon request. R.G. contends that the absence of the
June 2 and July 12 hearing transcripts forecloses her from making any arguments regarding
inadequate admonishments, which may become critical to any issues regarding her motion for
continuance filed on the day of trial.
In a termination case, before a parent is permitted to represent herself, the record should
show that the trial court informed her that there are technical rules of evidence and procedure,
and she will not be granted special consideration solely because she asserted her right of self-
representation. See In re C.L.S., 403 S.W.3d 15, 21 (Tex. App.—Houston [1st Dist.] 2012, pet.
denied).2 In the present case, on the day of trial, R.G.’s appointed counsel argued the motion for
continuance, during which she stated:
…The motion for continuance is also coming from me. [R.G.] has indicated this morning that she
no longer wishes to be pro se; that she wishes to have the attorney of her choice representing her
in this matter, who is not here today. In the absence of that, I believe the Court would probably
transition my appointment from someone who answers her questions to actually representing her. I
am anticipating that.
Counsel further stated that she was unprepared to represent R.G. in that capacity, due to not
being able to meet with R.G. on an extended basis or review R.G.’s evidence. The trial court
2
In C.L.S., the First Court of Appeals applied the criminal standard in Faretta v. California, 422 U.S. 806,
807, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975), which “provides that a defendant should be warned of the
dangers and disadvantages accompanying the waiver of the right to counsel and decision to self-represent,” to
termination cases. In re C.L.S., 403 S.W.3d 15, 19, 21 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). The
First Court explained that “[b]ecause a termination of parental rights case is like a criminal case—both protect
valuable personal rights from ‘devastatingly adverse action’—we will ‘apply the same right to counsel standard that
we apply to criminal cases.’” Id. at 21.
6
overruled the motion and later informed counsel, “You are the lawyer for the mother in this
case.” The trial court told R.G. the following:
And let’s be clear, it’s not a dual capacity. She’s the lawyer. You’re just the client. You can
confer with her any time, but you don’t get to ask questions of the jury. You don’t get to ask
questions of the witness. It all goes through your lawyer.
R.G.’s appointed counsel proceeded to conduct voir dire, present an opening statement, cross-
examine witnesses, lodge objections, present evidence, and present closing argument.
Accordingly, regardless of whether the trial court admonished R.G. on June 2, or even on
July 12, as to the dangers of representing herself, the record demonstrates that R.G. was
represented by counsel at trial. The admonishment requirement does not apply to cases in which
a party has standby counsel or hybrid representation. See Dolph v. State, 440 S.W.3d 898, 907
(Tex. App.—Texarkana 2013, pet. ref’d); see also Bradford v. State, No. 05-14-01610-CR, 2016
WL 326631, at *2 (Tex. App.—Dallas Jan. 27, 2016, pet. ref’d) (mem. op., not designated for
publication) (when trial court appoints standby counsel, admonishments regarding dangers and
disadvantages accompanying waiver of right to counsel and decision to self-represent are not
required). Thus, it serves that neither are admonishments required when a party is fully
represented by counsel at trial. For this reason, we cannot conclude that either the missing June
2 or July 12 hearings are necessary to the appeal’s resolution. See Routier, 112 S.W.3d at 571-
72.
At best, R.G. merely speculates that error might have been recorded in or be the result of,
the lost hearings and, therefore, she has not established that the missing records are necessary to
the appeal’s resolution. See TEX. R. APP. P. 34.6(f); Routier, 112 S.W.3d at 571. Moreover, “a
temporary order is superseded by the entry of a final order of termination, rendering moot any
complaint about the temporary order.” In re A.K., 487 S.W.3d 679, 683 (Tex. App.—San
Antonio 2016, no pet.) (complaints regarding aggravated circumstances findings in temporary
orders moot); see also In re C.R.J., No. 06-13-00053-CV, 2014 WL 199209, at *2 (Tex. App.—
Texarkana Jan. 17, 2014, no pet.) (mem. op.) (complaints regarding temporary hearings or
temporary orders rendered moot when final termination order was entered); In re D.W., Nos. 01-
13-00880-CV, 01-13-00883-CV, 01-13-00884-CV, 2014 WL 1494290, at *3 (Tex. App.—
Houston [1st Dist.] Apr. 11, 2014, no pet.) (mem. op.) (issuance of final decree rendered
7
temporary orders moot and thus not subject to appellate review). Because the temporary orders
and complaints about temporary permanency hearings are superseded and rendered moot by a
final termination judgment, the reporter’s record of the lost preliminary hearings, including the
April 12, June 2, and July hearings, are not necessary to the appeal’s resolution. See TEX. R. APP.
P. 34.6(f); Routier, 112 S.W.3d at 571.
CONCLUSION
Having determined that the lost or missing reporter’s records are not necessary to the
resolution of R.G.’s appeal, we find that R.G. is not entitled to a new trial.
Accordingly,
It is ORDERED that R.G. shall have twenty (20) days from the date of this order to file a
brief on the merits of this appeal.
It is FURTHER ORDERED that the Texas Department of Protective and Regulatory
Services shall have twenty (20) days from the date that R.G.’s brief is filed to file a brief on the
merits.
It is FURTHER ORDERED that R.G. shall have seven (7) days from the date that the
Department files its brief to file a reply brief.
It is FURTHER ORDERED that no briefing extensions will be granted in this case,
absent extraordinary circumstances.3
Opinion and order entered August 22, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
3
The Texas Rules of Judicial Administration require courts of appeals to ensure that an appeal of a suit for
termination or a suit affecting the parent-child relationship filed by a governmental entity be brought to final
disposition within 180 days of the date the notice of appeal is filed, so far as reasonably possible. TEX. R. JUD.
ADMIN. 6.2(a). In the present case, the notice of appeal was filed with this Court on May 4, 2018.
8