in the Interest of J.A.R. Children

OPINION
No. 04-10-00614-CV
IN THE INTEREST OF J.A.R., S.M.M., B.R.M., and G.M., Minor Children
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2009-PA-01805
Honorable Cathy Stryker, Judge Presiding 1
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Marialyn Barnard, Justice
Delivered and Filed: April 13, 2011
AFFIRMED
Appellant appeals from the trial court’s orders terminating his parental rights and denying
his motion for new trial. We affirm.
BACKGROUND
After a one-day bench trial, the Honorable Judge Barbara Nellermoe orally terminated
appellant’s parental rights to his daughter on the grounds that he did not comply with his family
plan and he constructively abandoned his daughter. 2 At that time, the Texas Department of
Family and Protective Services did not have an order prepared for Judge Nellermoe’s signature.
1
The Honorable Cathy Stryker is the presiding judge of the 224th Judicial District Court, Bexar County, Texas.
However, the Honorable Peter Sakai, presiding judge of the 225th Judicial District Court, Bexar County, Texas,
signed the order at issue in this appeal.
2
Appellant is the father of only one of the four children at issue in the termination proceeding.
04-10-00614-CV
Subsequently, the Honorable Judge Peter Sakai signed the Order of Termination. Appellant later
filed a motion for new trial and notice of appeal. Judge Sakai denied the motion for new trial
and found all of appellant’s appellate points to be frivolous.
DISCUSSION
On appeal, appellant argues it was improper for Judge Sakai to sign the Order of
Termination and rule on the post-trial motion for new trial because he did not hear any of the
evidence presented at trial. First, we note appellant did not object on either ground below. Also,
appellant does not cite, and we are unaware of, any statutory or judicial authority for his
contention that Judge Sakai abused his discretion by signing the Order of Termination and ruling
on appellant’s motion for new trial merely because Judge Sakai did not preside over the trial. In
fact, Judge Sakai’s signing of the Order of Termination merely formalized Judge Nellermoe’s
oral ruling. At the conclusion of the termination hearing, Judge Nellermoe ruled: “I do find it’s
in the best interest of these children to have the parents terminated from them. . . . And so I will
terminate them on the grounds of constructive abandonment and failure to comply with services
that were court[-]ordered. . . . And those would be my orders today.” Therefore, Judge
Nellermoe’s oral pronouncement amounted to the actual rendition of judgment. See Wittau v.
Storie, 145 S.W.3d 732, 735 (Tex. App.—Fort Worth 2004, no pet.); Stephens v. Henry S. Miller
Co., 667 S.W.2d 250, 252 (Tex. App.—Dallas 1984, writ dism’d). Therefore, Judge Sakai’s
signing of the Order of Termination was a ministerial act, id., and he did not abuse his discretion
by signing the order.
We acknowledge that the better practice would be for the same judge who heard all the
evidence during the termination hearing to also preside over the new trial hearing. However, in
this case, appellant testified at the new trial hearing. Therefore, Judge Sakai heard from
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04-10-00614-CV
appellant that he did not complete his service plan and he had not seen his daughter for the past
year. Thus, this was not the typical new trial hearing at which only the attorneys summarized the
evidence adduced at the trial on the merits. Accordingly, we conclude Judge Sakai did not abuse
his discretion by ruling on the new trial motion despite his not having presided over the trial.
Sandee Bryan Marion, Justice
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