in the Interest of N v. and E.E., Jr., Children , 554 S.W.3d 217 ( 2018 )

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).
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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
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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
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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
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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:
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[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
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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.
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