Gerry Uretsky - Attorney * Mediator * Arbitrator

Gerry Uretsky - Attorney * Mediator * Arbitrator Lawyer
Mediator
Arbitrator

01/15/2019

Courtesy of Amber Liddell Alwais:
***Conclusion Inserted in Last Paragraph***
Significant Supreme Court Case
Case 17-0603
In the Interest of A.L.M-F., et al.
The associate judge terminated mother’s parental rights. Mother then requested a de novo hearing, and then filed a request for a jury trial. The Department objected mother’s jury request, arguing that a jury trial would be too expensive because expert and other witnesses would have to be recalled, as well as interpreters. The children’s guardian ad litem argued they would be harmed by additional delay. The referring trial court denied mother’s jury request and, based solely on review of the reporter’s record from the associate judge, affirmed the termination. The appeals court affirmed, leading to mother’s Petition for Review to the Texas Supreme Court.
The Texas Supreme Court held that a de novo hearing is not an entirely new and independent action, but instead, is an extension of the original trial on the merits. For that, and many other reasons, they affirmed the appellate court's judgment affirming the trial court's denial of mother's jury request.

06/21/2018

WARNING: When an Associate Judge takes a child abuse and neglect case under advisement at the end of a hearing/trial, they later often notify the parties of their decision by emailing them a form "Memorandum of Associate Judge's Order," with their handwritten decision on it. This form specifically states, "THIS IS NOT THE ACTUAL FINAL ORDER, JUST A MEMORANDUM OF FINAL ORDER." But, according to the Fourth Court of Appeals, despite this language, if the Memorandum disposes of all pending parties and claims in the record, except as necessary to carry out the decree, IT IS A FINAL ORDER, thus starting the accelerated appellate timetable. Said timetable DOES NOT wait to start UPON THE ASSOCIATE JUDGE'S SIGNING OF THE TYPED FINAL ORDER, as the Associate Judge intends by the quoted language above.

Please forward to me the email ARAG sent you attaching your CaseAssist Confirmation Form. Thank you!
12/19/2017

Please forward to me the email ARAG sent you attaching your CaseAssist Confirmation Form. Thank you!

06/05/2017

Reminder: If you're going to contest service of process on appeal, just announce Not Ready and that you are making a special appearance, but don't participate in the trial. 04-16-00093-CV - Father and his attorney appeared at trial. Although father's attorney stated he was asserting a special appearance and announced Not Ready, the attorney: (1) fully participated in the hearing by objecting and questioning witnesses; and (2) sought affirmative relief during closing argument by requesting the trial court to maintain father’s parental rights and by asserting the Department failed to establish that termination of father’s parental rights was in child’s best interest. Accordingly, through father's attorney's actions, father entered a general appearance and waived any complaint regarding service of process. See In re J.W.S., 2016 WL 1464655, at *1; In re D.M.B., 467 S.W.3d at 103-04; In re P.Y.M., 2013 WL 4009748, at *2.

11/01/2016

Fourth Court of Appeals reverses the district court’s denial of Appellant's request for a de novo hearing after the associate judge rendered an order terminating his parental rights. Such a hearing is mandatory when timely requested under TFC 201.015, and the language in Order of Termination purporting to waive the right to a de novo hearing is not effective when the order is signed by counsel merely “approved as to form.”
To see the Opinion, copy & paste into your web browser, then press Enter key: http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9dc069df-058e-4505-bb2f-44577a089d3d&coa=coa04&DT=Opinion&MediaID=d67c96ab-6b58-4c75-836f-f1d6272ba6ea

07/07/2016

Fourth Court of Appeals declines to follow Dallas Court of Appeals’ holding that when an appellant has executed an affidavit of relinquishment during the trial phase of a parental-rights termination case, her arguments on appeal must be limited to fraud, duress, or coercion in the ex*****on of the affidavit pursuant to Texas Family Code section 161.211(c). Instead, the Fourth Court held that the due process protections afforded parents in such cases allow judicial review of best-interest determinations.
In the Interest of K.S.L.
Opinion:
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=f10bcdf3-86ff-4294-8050-76e99e1b127b&coa=coa04&DT=Opinion&MediaID=16129acb-8f50-4121-8c90-38afc7ed7d8d
Dissenting Opinion:
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=6240f65b-bee6-41ba-9fe7-6b802a057fa0&coa=coa04&DT=Opinion&MediaID=e91312c2-2220-4508-ae11-0c1cc38d98fb

01/20/2016

Are there any options for Children's Court appellants that miss their 20-day deadline to file their Notice of Appeal?
Yes:
1. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a Notice of Appeal beyond the 20-day deadline but within the 15-day grace period provided by TRAP 26.3 for filing a motion for extension of time.
2. File (a) a Motion for New Trial (due 30 days from court signing final order) or (b) Motion to Modify the Judgment, so that the trial court retains plenary power to vacate, modify, correct, or reform its judgment for 30 days after the judgment is signed. TRCP 329b(d),(e),(g). If the judgment is modified while the trial court has plenary power, the appellate timetable is restarted when the new judgment is signed. Id. TRCP. 329b(h).
3. If you or your client did not receive timely notice of a judgment (within 20 days from court signing), the beginning of the appellate timetable may be postponed if you (1) timely comply with the sworn motion, notice, and hearing requirements of TRCP 306a(5), and (2) prove you received notice or actual knowledge of the judgment more than 20 but less than 91 days after it was signed. TRCP 306a; TRAP 4.2.
Hope you find this helpful.

06/16/2015

Good reminder, in a Fourth Court of Appeals Memorandum Opinion last week, to continue to object to hearsay testimony or request a running objection:
Maurice C. argues the trial court erred in overruling his hearsay objection to Iruegas’s testimony that the Department received a referral in November 2013 alleging neglectful supervision of the children because the parents were using drugs and at one point, the mother became intoxicated with alcohol and Xanax and attempted to slit her throat with a knife in front of her children. We review the admission of evidence for abuse of discretion. See Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009).
Whether or not this testimony was inadmissible hearsay, any error is harmless because Maurice C. did not continue to object to Iruegas’s testimony or request a running objection. To obtain the reversal of a judgment based upon an error of the trial court in admission or exclusion of evidence, it must be shown that the trial court did in fact commit error and that the error complained of probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the court of appeals. See TEX. R. APP. P. 44.1(a); State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). Any error in excluding evidence is harmless if other admitted evidence reveals the same facts as that which is excluded. Bryant v. Transcon. Gas Pipe Line Corp., 821 S.W.2d 187, 188 (Tex. App.—Houston [14th Dist.] 1991, writ denied); see Cent. Expressway, 302 S.W.3d at 870 (“[T]he exclusion or admission is likely harmless if the evidence was cumulative, or the rest of the evidence was so one-sided that the error likely made no difference in the judgment.”). After Maurice C. objected to Iruegas’s testimony, Iruegas gave similar testimony without objection. Therefore, any error was harmless.

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