









Reversed and Remanded and Opinion filed March 30, 2006








Reversed and Remanded and Opinion filed March 30,
2006.
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14‑05‑00284‑CV
____________
 
IN THE INTEREST OF T.S., E.S., V.S.
 

 
On Appeal from the
300th District Court
Brazoria
County, Texas
Trial Court Cause No.
27225
 

 
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.

