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Reversed and Remanded and
Opinion filed March 30, 2006.
In
The
Fourteenth
Court of Appeals
____________
____________
IN THE
INTEREST OF T.S., E.S., V.S.
On
Appeal from the 300th District
Court
O P I N I
O N
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 (AChristina@) and Todd
Sharp (ATodd@) are the
parents of three children, T.S., E.S., and V.S. The Brazoria County
Children=s
Protective Services (hereinafter referred to as ACPS@) 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.
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 Aa trial on
the merits@ as
Aany 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
Aa 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.
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 Ato 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. Under CPS=s
statutory construction, an associate judge=s report
would constitute the final order of the referring court, with no
opportunity for any party to appeal to the referring court, in every case
tried to an associate judge and in every jury trial over which an
associate judge presided.
CPS=s
construction would render the following statute meaningless as to all
parties involved in trials conducted by associate
judges:
' 201.015. Appeal to Referring
Court
(a) A party may appeal an
associate judge=s report by filing notice of
appeal not later than the third day after the date the party receives
notice of the substance of the associate judge=s report as provided by
Section 201.011.
(b) An appeal to the
referring court must be in writing specifying the findings and conclusions
of the associate judge to which the party objects. The appeal is limited
to the specified findings and conclusions.
(c) On appeal to the
referring court, the parties may present witnesses as in a hearing de novo
on the issues raised in the appeal.
The 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.
(d) Notice of an appeal to
the referring court shall be given to the opposing attorney under Rule
21a, Texas Rules of Civil Procedure.
(e) If an appeal to the
referring court is filed by a party, any other party may file an appeal to
the referring court not later than the seventh day after the date the
initial appeal was filed.
(f) The referring court,
after notice to the parties, shall hold a hearing on all appeals not later
than the 30th day after the date on which the initial appeal was filed
with the referring court.
(g) Before the start of a
hearing by an associate judge, the parties may waive the right of appeal
to the referring court in writing or on the record.
(h) Denial of an appeal under
this section or waiver of the right to appeal to the referring court does
not affect the right of a party to file a motion for new trial, motion for
judgment notwithstanding the verdict, or other post‑trial
motion.
(i) A party may not demand a
second jury on appeal of an associate judge=s report, including any
proposed order, resulting from a jury trial.
Tex.
Fam. Code Ann. '
201.015. Section 201.015
allows an appeal by Aa
party@ who
satisfies the procedural requirements of that section; it does not exclude
parties who failed to object to the referral of the trial to an associate
judge. See id. CPS asserts that allowing appeals
of reports by associate judges in termination cases would make it
difficult for trial courts to comply with the statutory deadlines for
rendering a final order in parental‑termination cases. See Tex. Fam. Code Ann. '
263.401(a),(b) (Vernon 2002).
CPS overlooks the fact that section 201.015 states that referring
courts shall hear appeals of reports by associate judges within thirty
days of the filing of the first appeal. See Tex. Fam. Code Ann. '
201.015(f).
In
addition, we note that the associate judge in this case was appointed
under Subchapter C of Chapter 201 of the Family Code. See Tex. Fam. Code Ann. ' 201.201
et seq. (Vernon Supp. 2005).
Appeals to the referring court from reports of associate judges
appointed under this provision are governed by the following
statute:
Appeal to Referring
Court
(a) Except as provided by
this section, Section 201.015 applies to an appeal of the associate
judge=s
recommendations.
(b) The party appealing an
associate judge=s recommendation shall file
notice with the referring court and the clerk of the court.
Tex.
Fam. Code Ann.
' 201.2042
(Vernon Supp. 2005). This
section, with one modification, incorporates the appellate procedures from
section 201.015; it does not state that section 201.005 applies to appeals
from Subchapter C associate judges.
See id.
We agree
with the only other appellate court that has addressed this issue that the
language in section 201.005(b) and (c) does not deprive parties of their
right to appeal to the referring court. See Vaughn v. Vaughn, 805
S.W.2d 913, 914B15 (Tex.
App.CCorpus
Christi 1991, writ denied) (holding that same language in predecessor
statute to section 201.005(b) and (c) did not deprive wife of her right to
appeal the family law master=s
recommendations to the referring court following trial of divorce and
custody issues before the family law master); see also Santikos v.
Santikos, 920 S.W.2d 731, 732B34 (Tex.
App.CHouston
[1st Dist.] 1996, writ denied) (holding that referring court erred in
signing an order adopting the associate judge=s report
before it held a hearing on the ex‑wife=s appeal
under section 210.015 because a party who timely files an appeal under
section 210.015 is entitled to a hearing thereon). Therefore, we conclude the
presiding judge of the trial court erred in granting CPS=s motion
to set aside the appeals and refusing to entertain Christina=s and
Todd=s
appeals. See Vaughn,
805 S.W.2d at 914B15.
B. Are
CPS=s other
arguments in support the trial court=s denial
of an appeal to the referring court meritorious?
On appeal,
CPS does not present the section 201.005 argument asserted in its
trial‑court motion to set aside the appeals. However, on appeal CPS makes the
following arguments that it did not present to the trial
court:
(1) Section 263.404
of the Family Code provides a comprehensive outline governing final orders
in suits affecting the parent‑child relationship.
(2) Section 263.405(a)
requires that appeals from orders terminating the parent‑child
relationship be accelerated.
(3) Under Section
263.405(c), the period of time to perfect an appeal is not extended by
timely filed post‑judgment motions or requests for findings of fact and
conclusions of law.
(4) Section 263.405(b)
requires the filing of a statement of points within15 days of the trial
court=s final
order.
(5) Section 263.405 does
not provide for an appeal to the referring court following a trial
conducted by an associate judge.
(6) Section 263.405(d) only
requires that the trial court hold a hearing within thirty days after the
final order is signed as to whether a new trial should be granted, whether
a party=s claim of indigence, if any,
should be sustained, and as to whether the appeal is
frivolous.
(7) Section 201.015 does
not mandate a de novo hearing in all appeals of associate judges= reports to the referring
court.
(8) The requests by
Christina and Todd for a de novo appeal under section 201.015 violates
CPS=s rights
to a jury trial and the statutory requirement under section
105.002(c)(1)(A),(B), and (C) that the trial court not contravene the
jury=s verdict
as to appointment of a conservator.
We
conclude these arguments lack merit.
Section 263.404 is not a comprehensive outline of final orders;
rather, it applies only to final orders appointing CPS as managing
conservator without terminating parental rights. See Tex. Fam. Code Ann. ' 263.404
(Vernon 2002).
CPS=s
arguments regarding section 263.405 do not affect our analysis in this
case. Section 263.405 deals
with various procedures relating to appeals from certain final orders
under Chapter 263, including final orders terminating parental
rights. See Tex. Fam. Code Ann. ' 263.405
(Vernon 2002). However, this
section is silent as to whether parties may appeal an associate
judge=s report
to the referring court.
See id. Moreover, in many of CPS=s
arguments under this section, CPS presumes that the associate
judge=s report
constituted the final order; however, in its order granting
CPS=s motion
to deny the appeals to the referring court, the trial court stated that
its order setting aside the appeals was to be the final order in the
case. Therefore, CPS
incorrectly presumes that the associate judge=s report
was the final order.
Furthermore,
CPS=s
arguments regarding whether a de novo hearing is discretionary under
section 201.015 do not support the trial court=s ruling
that Christina and Todd were entitled to no appeal whatsoever under
section 201.015. Because this
argument is premature and not relevant to the issues before us, we do not
address it. Likewise, the eighth argument listed above is not before
us. In any event, we note
that the parties= right to
a jury trial was respected. A
jury trial did occur.
Furthermore, based on the manner in which the jury answered the
charge, it rendered a verdict only on parental‑termination issues, not on
issues regarding appointment of a conservator.
Because it
is necessary for the trial court to hear Christina=s and
Todd=s appeals,
we do not reach their arguments on the merits regarding the legal and
factual sufficiency of the evidence.
See Santikos, 920 S.W.2d at 734 (stating that, because
remand was necessary for hearing of appeal from associate
judge=s report,
court of appeals would not reach merits of the case). Accordingly, we sustain
Christina=s and
Todd=s
respective first issues, reverse the trial court=s
judgment, and remand for further proceedings consistent with this
opinion.
/s/ Kem
Thompson Frost
Justice
Judgment
rendered and Opinion filed March 30, 2006.
Panel
consists of Justices Hudson, Frost, and
Seymore.