In re Stacy Marie Ross--Appeal from 19th District Court of McLennan County (per curiam)

IN THE

TENTH COURT OF APPEALS

No. 10-10-00414-CV

In re Stacy Marie Ross

Original Proceeding

ORDER

            Stacy Marie Ross filed a petition for writ of mandamus requesting this Court to compel the Honorable Judge Ralph Strother, the judge of the 19th District Court of McLennan County, to grant Ross's motion for judgment nunc pro tunc based upon the uncontested trial conducted by Judge Derwood Johnson.  After Ross filed her petition for writ of mandamus, the case was transferred from the 19th District Court to the 74th District Court of McLennan County, Honorable Gary Coley presiding.

Background

Stacy Marie Ross[1] and Vincent Hendrix are the biological parents of V.R.  The Department of Protective and Regulatory Services filed a petition to terminate the parental rights of Stacy and Vincent to V.R., and V.R. was placed with her paternal grandmother, Cynthia Hendrix.  Stacy, Vincent, Cynthia, and the Department entered into a binding, mediated settlement agreement on May 8, 2006.

Pursuant to the settlement agreement, Stacy and Vincent voluntarily relinquished their parental rights to V.R.  The settlement agreement provided for Cynthia to become the adoptive parent of V.R.  The settlement agreement further provided for daily telephone contact and weekly visitation between Stacy, Vincent, and V.R.  The terms of the settlement agreement provide safeguards in that the weekly visitation be supervised by Cynthia or her designee at all times and that Cynthia may terminate a supervised visit or telephone call if Stacy or Vincent are behaving inappropriately.  Vincent and Stacy are both to provide a full panel drug screen to Cynthia on a monthly basis.  If they fail the drug screening, they will not receive visitation.

A final termination hearing was held on May 16, 2006 in front of Judge Derwood Johnson.  The Department caseworker testified at the hearing that the settlement agreement provided that Stacy and Vincent have visitation with V.R. and that such visitation was in the best interest of V.R.

The mediated settlement agreement was filed with the trial court, and the trial court took judicial notice of the agreement.  The Department asked the trial court to approve the mediated settlement agreement, and the trial court rendered judgment granting the relief requested.

            The trial court signed a final order of termination on June 15, 2006.  That order did not provide for daily telephone contact and weekly visitation as agreed to in the settlement agreement and approved by the trial court at the final hearing.  Stacy did not receive notice of the final hearing or notice of the entry of the final order because she waived notice in the affidavit of voluntary relinquishment.

            Stacy filed a motion for judgment nunc pro tunc to correct the clerical error in the final order and allow for visitation.  The trial court denied the motion for judgment nunc pro tunc, and the mandamus proceeding resulted from that denial.

Abatement

The proper procedure is to abate the proceeding and give Ross the opportunity to present her request for relief to Judge Coley and allow him to reconsider Judge Strother's decision.  See In re Whitfield, 134 S.W.3d 314 (Tex. App.Waco 2003, order) (abating because elected trial judge was no longer in office).  If Judge Coley refuses to grant the relief sought, Ross may then amend her petition to specifically allege that Judge Coley denied the relief requested, and we will duly consider the amended petition.  See Whitfield, 134 S.W.3d at 314.

            We abate this case for 45 days from the date of this order to allow Ross the opportunity to present her motion for judgment nunc pro tunc to Judge Coley of the 74th District Court of McLennan County, obtain a ruling, and amend the petition for writ of mandamus if necessary.

                                                                                                PER CURIAM

Before Chief Justice Gray,

            Justice Davis, and

            Justice Scoggins

Abated

Order issued and filed February 16, 2011

Do not publish

[1] Stacy Marie Ross is also referred to as Stacy Marie Lawrence.