### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 23
- 00171
- CV

N. R. , Appellant

v. Texas Department of Family and Protective Services, Appellee

FROM THE 428TH DISTRICT COURT OF HAYS COUNTY NO. 22-0564, THE HONORABLE MELISSA MCCLENAHAN , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

N.R. (Father) appeals from a judgment terminating his parental rights to his

two

- year -old child, Sean

. 1 Father argues that the associate judge erred by co nducting the trial on
the merits even though he obje cted to the referral. We affirm.

BACKGROUN D In March of 2022, the Department of Family and Protective Services sued Fa ther and E.R. (Mother ), seeking to terminate their parental rights over Sean. An associate judge
gra nted the Department temporary m an ag ing conservatorship of Sean . T he foll owing month , the associate judge consolidat ed the Depar tment ’ s suit with a preexisting suit brought by t he O ffice

1 To p rotect the chi ld ’ s pr ivacy , w e refer t o him by a pseudonym an d his parents by their initi als or as Mother or Father

. See Tex . Fam . C ode § 109.002(d); Te x. R. App. P. 9.8.2 of the Attorney General to adjudicate Sean ’ s parentage and to require Father to pay
child support

. In J a nuary of 2023 , t he Department and Mother reached a mediated settlement agreement that called for Mother to be appointed possessory conservator wit h visitation rights
and S ean ’s paternal aun t and uncle to be appointed j o i nt managing conser vators. A t a pr e t rial
he aring on January 31 , 2023, t he district court announced th at it was referring the matter back to the associate judge for trial of the case against Father.
T he associate judge s et the case for trial on February 22, 202 3. Fa ther app ea red by couns el b ut was not present in person. Father ’s counsel stated that she had objected to the assignment of the parentage case to an associate judge and t hat her objection transferred when
the cases were consolidated

. Counsel stated that she did not want to rea sser t the objection but
th at she “ can ’ t waive that without [Father] being present

. ” T he associate judge asked if counsel
knew where Father was because he had not logged on , 2 and c o unsel replied that Father “said he
would be here. ” Counsel explained that Fath er sent her a text message the previous day asking
how to attend the trial. She replied with the information and asked him whether he objected to having the trial before the associate judge . Father did not re spon d to the question

. After reviewing F a ther ’ s other messages , c ounsel stated that she saw “ no indication

. . . that he intended to not proceed today

. ” Counsel reiterated that “ unless I hear specifically directly from
him

. . . I ’ m not going to be doing that. ” T he associate judge remarked tha t Fat her was “ not here today to affirmatively stand on his objection to the Associate Judge ” and that his “ attorney is present and has attempted to get him to be here. ”

2 The case was tried via Zoom v ideo conferenc ing pursuant to the governing emergenc y orders from the supreme court

.3 T he associ ate judge ruled that Father ’s objection was properly before her and that
Fa ther ha d waived it by failing to appear in person

. After the conclus ion of the hearin g, th e associate judge signed a n order finding the Department had proven a statutory predicate
for termination and that t ermination is in Sean ’s best interest. See T e x. Fam. Co de § 161.001(b)(1) (O) (fai ling to compl y with court order setting out steps to obtai n child ’ s return) , (2) (best interest finding)

. The associate judge ’s order becam e the refe rring c ourt ’s judgment by
op eration of law , s ee id. § 201.2041 (a) , and th is appe al ensued.

D IS CUSSION Father argue s in a single i ssue that the a ssociate judge err ed by overruling his objection and proceeding with the trial. The Family Code perm its a judg e to re fer certain matters, including a suit affecting the parent

- child r elationsh ip, to an associate judge for trial

. Id. § 201.0 05(a). “ Unless a party files a w ritten objection to the associate judge heari ng a trial on the meri ts, the judge m ay refer t he tria l to the associate judge. ” Id. § 201.005 ( b ). “ A party must file an object ion to an associate judge hearing a trial on the merits or presi ding at a jury tri al not later than the 10th day after the date the party receives notice that the a ssociate judge wi ll hear the trial. ”
Id. § 201.005 (c)

. “ If an objection is filed, the refe rring court sha ll hear the trial on the merits or preside at a j ury trial. ” Id

. A trial court abu ses its discretion by overruling a timely objection and proceedin g with a trial on the merits

. See In re Baker , 495 S.W.3d 393, 397 (Tex. App.

— Hous ton [14th Dist.] 2016, orig . proceeding )

. The parties joi n issue over wh ether Father ’ s obj ection was timely. Father argues that the motion was properly before the associate judge because she ruled on it and there is4 nothing in the record to rebut thi s
. 3 The Depar tm ent respon ds that Father failed to provide a

r ecord adequate to show error beca use the objection is not in the record. In the alternative , the Department argues that Sectio n 201.005 require d Father to object within ten days of the January 31 , 2023 heari ng and that he failed to do so

. We agree with th e Department ’s first ar gu ment

. F ather argues that there was

“ nothing presented to the [trial] co urt suggesting [ his] objection was not timely f iled , ” but he
bore the initial bur den to sh ow the obje ction was ti mely

. S ee Christiansen v. Prezelski , 782 S.W. 2d 842, 843 (Te x. 1990) ( “ The bur den is on the appellant to see that a sufficient record is presented to show error requiring r eversal.” ) ; Pers o n v. MC

- Simpsonville, SC

- 1

- UT, LLC , No. 03

- 20

- 00560

- CV , 2021 WL 38 16332, at *2 (Tex. App.

— Austin Aug. 27, 2021, no pet.) (mem. op. ) (same) . The record does not include the tex t of the objection or indicate when it was
filed

. On this reco rd, we cannot det ermine whether Fathe r timely filed a written objection t o the

as si gnment of the case to an associate judge

. See Baker , 495 S.W .3d at 397 ( “ If on e of the parties files a timely written objection to the associate judge p residing over trial, the case shall b e tried by the refer ring judge rather than the associa te judge.” )

. We conclude that F ather has not shown that t he associate ju dge abused her dis cretion by proceeding to trial and w e ov errule
Father ’ s sole issue.

3 In overruling Father ’s objection, the ass ociate judge reference d a line of cas es holding that a litiga nt who “ has perfec ted i ts right to a jury trial in accordance with Rule 216 but the trial court p roceeds to tria l without a jury, the party mu st, to preserve error , either object on the record to the trial court ’ s action or indicate affirmatively in the re cord it intends to stan d on its perfected right to a jury trial.” See E. E. v. T ex as Dep ’ t of Fam

. & Protective Serv s. , 598 S.W.3 d 389, 398 (T ex. App.

— Austin 2020, no pet.) . Father argues that t his was error because he appeared through cou nsel. W e expres s no opinion on wh ether those cases are applicable in this context because we co nclu de that Fathe r failed to provide a suff icient record to de monstrate the associate judge erred by overruling his objecti on
. See Tex. R. App. P. 47.1 ( “ The court of appeals must hand down a w ritten op inion that is as brief as practicable but that addres ses every issue r aised and necessary to fin al disposition of t he app eal. ”).5 CONCLUSION
We affirm the d istrict court ’ s j udgment

.

_____ _____________________________________ Rosa Lopez Theofa nis , Ju sti ce Before Chief Justice By rne , Justices Triana and Theof anis
Af firmed
Filed: July 21, 2023