## NO. 12

- 23

- 00232

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN THE INTEREST OF
A.C., R.G., P.G. AND B.G.,

MINOR CHILDREN §
§
§ APPEAL FROM THE

COUNTY COURT AT LAW NO 2

ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION
Appellant, A.C. , appeals the ter minati on o f her par ental rights

. In her sole issue, she argues that the trial court erred by denying her reques t for a de novo hearing

. We rev erse and
remand

.

B ACKGROUND A.C. (Mother) is the mother of A.C., R.G., P.G., and B.G., all minor children

. T. Y

. is th e f ather of A.C., while C.G. is the father of R.G., P.G., and B.G. On December 6, 2021 , the Department of Fami ly and Protective Services ( the Department ) filed an Original Petition for Protection of Child, for Conservatorship, and for Termination in a Su it Af fecting the Parent

Child Relationship

. 1 The reaso ns f or removal included reports of family violence between
Mother and C.G., reports o f gu nshots fired at the home , an d the children testing positive for methamphetamine

. After a hearing on December 20 , t he S tate of Texas assumed temporary

mana ging conservatorship of all four minor children and they were placed in a foster home

. Having ma de progress on his Family Plan of Service, C.G. filed a Motion for Monitored
Return , in which he offe r ed to care for all fo ur children

. T he court granted the motion and the
children were transferred to C.G. ’ s home. In the interim, Mot her participated in inpatient
substance abuse treatment and ex pressed her willingness to co

- parent with C.G. and continue

1 Only M other filed a notice of appeal.2 o u tpa ti ent substance ab use counseling

. T.Y., A.C. ’ s father, was incarcera ted throughout the pendency of thi s matter and repor tedly made no progress on his Family Plan of Service

. Trial was originally scheduled for February 1 6, 2023. Although Mot her ’ s brie f sug gests

t hat trial b e gan on this date and case worker Amanda H olster provided test imony, t he record
before us does not contain a transcript or audio reco rding of the proceedings from this date

. However, t he Departme nt ’ s Motio n for Failed Monitored Return indicates t ha t on Febru ary 23,
the children were removed from C.G. ’ s home because R.G., P.G., and B.G. tested positive for illegal substances. Subsequent ly, all four children were retu rned to the care of t heir former fo ster
pa rent. The final trial in this matter com menced on Jul y 2 4 before an associate judge

. Hols ter testified that Mother completed all the requirements of her Family Plan of Service exce pt f or providing stable housing fo r the children , because she recentl y com pleted another residentia l
substance abus e treatment pr ogram a nd resided in a women ’ s sober living house. Neither H olster nor Brenda Walters, the children ’ s CASA advocate , testified in favor of terminating Mot her ’ s parental rights, with both citi ng her progress in reco very

. Howe ver, the Departme nt maintained
i ts position that the parental rights of Mother, C.G., and T.Y. should be terminated. The associate judge ultimately concluded t hat both Mother ’ s and T.Y. ’ s p arental rights should be
terminated , but appointed C.G. as possessory conservator o f R.G., P.G., an d B.G.
Mother requested a de novo hearing of the associate judge ’ s findings

. On August 21, the date scheduled for the hearing, the trial judge briefly questioned the attorneys regarding the
evidence they intended to present. He also asked C.G. ( presen t as a witness fo r Mother ) whet her
he had “ anything brand new to tell me today [

. ] ” Thereafter, the trial judge expressed his
under stand ing that a de novo hearing “ is for newly discovered evidence , ” and th at “ i f something had cropped up in betw een that you had no idea about and couldn ’ t have put on had you wanted to, tha ’ s the purpose of de novo

. ” He further stated that Mothe r retai n ed th e right to direct appeal. F or this reason , the trial court refused to cond uct the requested de novo hearing and

a ffirme d the associate jud ge ’ s ruling

. Notably, the trial court ’ s Order Adopting Associate3 Judge ’ s Report states that the trial court iss u ed sam e “ after de novo hearing held on August 21,
2023

. ” This appeal follow ed. 2

D E N OVO H EARING

In her sole issue, Mothe r argues that the tri al court abused its discretion in denying her request for a de novo hearing of the asso ciate judge ’ s ruling.
S t andar d of Review and Applicable Law We review the denial of a de novo hearing for abuse of discretion. See D. V. v. Texas
De p ’ t of Fam. & Protecti ve Servs. , No. 03

- 23

- 00098

- CV, 2023 WL 4494802, at *1 (Tex. App.

— A ustin July 13, 2023 , no pe t. ) (mem. op.) ; G u errero v. A.C.G. , No. 08

- 22

- 00042

- CV, 2023 WL 2589697, at *2 (Tex. App.

— El Pa so Mar. 21, 2023, no pet.) (mem. op .). A trial court abuses its discr etion “when it acts with disregard of guiding rules or principles or when it acts in
an arbi trary or unreaso n able manner.” In re Acad., Ltd. , 625 S.W.3d 19, 25 (Tex. 2021) (orig. proceedi ng). A trial court error require s reversal i f it “probably caused th e rendition of an improper judgment” or “probab ly prevente d the appellant from properly pres enting the case to the court of appeals.” T EX

. R. A PP

. P. 44.1(a).
The Texas F amily Code allows a judge to refer certain matter s, including a suit affecting the par ent

- child relationship, to an associate judge for a rulin g. T EX

. F AM

. C ODE A NN

. § 201.005(a) (West 2023)

. T he associate judge must issue a propos ed order or judgment containing the associate j udge ’ s findings, conclusi ons, or reco mmendations. Id. § 201.011( a) (West 2023)

. Th ereafter, a party may request a de novo hear ing before the referring court by filing a written request within three days of receiving notice of the a ssociate judge ’ s order

. I d. § 201.015(a) (West 2 023)

. I f pr operly requested , the de novo hearing is manda tor y

. See id. § 201.015(f) (“The referring cou rt ... shall hold a de novo he aring no t later than the 30th day after the date on which the initial request for a de novo hearing was filed with the cl erk of the

r eferring court.”); Int. of A.L. M.

- F. , 593 S.W.3d 271, 279 (Tex. 2019) (de novo hearing proces s is “ mandatory when invoked ” )

. A tri a l court abuses its discretion if it fails to hold a de novo hearing on proper request. See D

. V. , 2023 WL 449480 2 at *1 ; Gue rrero , 2023 WL 2589697 at *3

.

2 O n August 22, 2023, counsel for the Department sent a letter to the trial cou rt de tailing his re search into the requi rements for presentation of evidence at a de novo hearing, and concludi ng that Texas law does not require that such evidence be “newly discovered.”4 A n alysis
The record shows that Mother timely request ed a de nov o hearing before the referring judge a nd contains no objection from any party that Mother ’ s written request is defec tive or

nonco mpliant with the rele vant statute s , including Section 201.015(b)

. Nor does our review of
Mother ’ s request reflect any such defects. Consequently, the tria l court w as required to hold a de

novo hearing in w hich the referring court would resolve the disputed issue specified in said
writte n request , namely the termination o f Mother ’ s parental rights. See A.L.M.

- F. , 593 S.W.3d

at 279 ; D. V. , 2023 WL 4494802 at * 3

. W e d o not find any lega l authority supporting the trial

court ’ s imposition of a rule that a party must present “ newl y discover ed evidence ” before the

cou rt will con duct the requested de novo hearing. Theref ore, we conclude that the trial court
abused i ts dis c retio n by refusing to hold a de novo hearing pursuant to Mother ’ s request. See
D. V. , 2023 WL 4494802 at *1 ; Gue rrero , 2023 WL 2589697 at *3

. Even accepting as t r ue th e trial court ’ s statement in its order that a de novo hearing was held on August 2 1, the trial court abused its discretion in con d ucting sai d hearing

. B efore affirming the associate judge ’ s report, t h e trial cour t stated that it “looked at ” the recor d of the proceedi ngs before the associate judge and found “ nothing I would do differe nt based on the
record

. ” P resuming that these actions constituted de novo review by the trial court of the
termination of Mother ’ s pa rental rights, such review do es not n eg ate the court ’s abuse of
disc retion

. A lthough the Family Code authorizes the referr ing co ur t to consider the record of the

proc eedings before the associate judge , and parties are not required to call witn esses at a d e novo hearing , Section 201.015 (c) pro vi des that the parties may present witnes ses if they choose

. In re
R. R. , 537 S .W. 3d 621, 624 (Tex. App.

— Austin 2017 , no pet. ) ; see also Int. of J.R. , No. 07

- 18

- 002 40

- CV, 2018 WL 7488914, at *2 (Tex. App.

— A mar illo Sept. 26, 2018 , no pet. ) (m em. op.) ( parti es entitled to present witnesses on issues specified in request for hearing )

. T he record
sh ow s that M other intended to call at least o ne witness , C.G., but was not permitted to do so. The referring court does not hav e the discretion to bar a party from cal lin g witnesses at the de novo hearing

. In re R. R. , 537 S.W. 3d at 624 ; see also In re Fa mily Link Tre atment Servs., Inc

. , No. 03

- 22

- 00210

- CV, 2022 WL 17478413, at *4 (Tex. App.

— Austin Dec. 7, 2022 , no pet. ) (mem. o p .)

. We also conclude that the trial court ’ s e rror was harmful (and thus reversible) because it likely resulted in the rendition o f an imprope r judgment, and further denied Mother the ability to5 present her case to the r e f erring court

. See In Int. of R.A .O. , 561 S.W.3d 704, 710 (Tex. App.

— Ho u ston [14t h Dist.] 2018 , no pet. ) ( “ A judgment rendered without granting a party the right to a d e novo h earing on matters disposed of in the judgment is an improper judg ment. ” ) ; see also J.V. v. Texas Dep ’ t of Fam. & Pro tective Servs. , No. 03

- 16

- 00614

- CV, 2017 WL 8 76028, at *2 (Tex. App.

— Austin Mar. 1, 2017 , no pet. ) (mem. op .) ( “ We presume that t he failure to hold the requested [de novo] hearing is harmful

. ” ). At minimum , the trial court failed to hold a de novo
hear ing in compliance with the Famil y Code

. T EX

. F AM

. C ODE A NN

. § 201.0 1 5( c ) ; T EX

. R. A PP

. P. 44.1(a)

. W e sustain Mother ’ s sole issue.

D I SPOSITIO N Having sustained Mother ’ s issue, w e reverse the trial court ’ s order of August 29, 2023 , adopting the associate jud ge ’ s report, and remand this case t o the trial court to cond uct a de novo
he aring consistent with this opinion.

J AMES T. W ORTHEN Ch ief Just ice
Opinion delivered November 15 , 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

## COURT OF AP PEALS

TW ELFTH C OURT OF APPEALS DISTRICT OF TEXAS

J UDGMENT

NO VEMBER 15, 2023

NO

. 12-23-00232- CV

I N THE INTEREST OF A.C., R.G., P.G. AND B.G., MINOR CHILDREN

A ppeal from the County Court at Law No 2 of Angelina County, Texas (Tr.Ct.No. CV -01486-21-12)

T HIS CAUS E came to be heard on the appellate record and briefs filed
here in, and the same being considered , because it is the opinion of this Court that there was error
in the cou rt below, it is ORDERED, ADJUDGED and DECREED by this Co urt that the trial
court’ s order of August 29, 2023 be reversed and the cause remanded to the trial court for
furthe r proceedings in accordan ce with the opinion of this Court; and that this decision be
certified to the court below for obse rvance.

J ames T. Worthen , Chief Justice

. Panel consi sted of Worthe n, C.J., Hoyle, J., and Neeley, J.