in the Interest of E.H., a Child v. Texas Department of Family and Protective Services ( 2019 )

Reversed in Part, Remanded, and Memorandum Opinion filed December 5,
2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00833-CV
IN THE INTEREST OF E.H., A CHILD
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Cause No. 2017-29859
MEMORANDUM OPINION
This accelerated appeal arises from a final decree in a suit in which
termination of the parent-child relationship was at issue. See Tex. Fam. Code Ann.
§ 109.002(a-1). The trial court terminated the parental rights of S.H. (Mother) and
R.A.G. (Father), respectively, with respect to their son, E.H.1 The trial court also
appointed the Texas Department of Family and Protective Services (the
“Department”) to be E.H.’s managing conservator. Only Mother appeals.2
1
We use initials to refer to the children and parents involved in this case. See Tex. Fam. Code
Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
2
Mother’s parental rights as to other children were terminated in two separate proceedings. Her
appeals from those terminations were assigned to this court. No. 14-19-00832-CV, In the Interest
Court reporter Tony Baiamonte III notified this court that he is unable to
produce his portion of the reporter’s record (volumes 2, 5, and 6) because the
electronic recording is inaudible. An appellant is entitled to a new trial when she
timely requests the reporter’s record, and, by no fault of the appellant, the reporter’s
record has been lost or destroyed, is necessary for the appeal, and cannot be
reconstructed. See Tex. R. App. P. 34.6(f); Gavrel v. Rodriguez, 225 S.W.3d 758,
761 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); In re B.H., No. 14-16-
01011-CV, 2017 WL 1015697, *1 (Tex. App.—Houston [14th Dist.] Mar. 14, 2017,
no pet.) (mem. op.) (per curiam) (reversing portion of judgment terminating
appellant’s parental rights and granting appellant new trial because reporter’s record
was lost or destroyed).
On November 13, 2019, we abated this appeal for the trial court to make
findings under Texas Rule of Appellate Procedure 34.6(f). Supplemental clerk’s and
reporter’s records regarding those findings have been filed. The trial court found:
(1) Mother timely requested a reporter’s record;
(2) without Mother’s fault, a significant portion of the court
reporter’s notes and recordings have been lost or destroyed or is
inaudible;
(3) the lost, destroyed, or inaudible portion of the reporter’s notes
and recordings are necessary to the appeal’s resolution; and
(4) the parties cannot agree on the replacement of the portions of the
reporter’s notes or recordings nor can the parties agree that the
notes or recordings can be duplicated with reasonable certainty.
The trial court concluded that Mother is entitled to a new trial under Texas Rule of
Appellate Procedure 34.6(f).
of A.S.G., and N.P.G., Children; and No. 14-19-00834-CV, In the Interest of N.A.H., a Child.
2
In light of the trial court’s findings, we REVERSE only that portion of the
final decree terminating Mother’s parental rights to E.H. and REMAND this case to
the trial court for a new trial to be held as to only those claims brought by the
Department against Mother. See Tex. Fam. Code Ann. § 263.401(b-1). We leave the
remainder of the decree undisturbed.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.
3