                                  IN THE
                          TENTH COURT OF APPEALS

                                   No. 10-19-00223-CV

                    IN THE INTEREST OF W.S., A CHILD


                           From the 74th District Court
                            McLennan County, Texas
                           Trial Court No. 2017-2308-3


                           MEMORANDUM OPINION


      William S. appeals from a judgment terminating his parental rights to his child,

W.S. See TEX. FAM. CODE ANN. § 161.001. In his sole issue, William complains that the

referring court abused its discretion by denying his jury demand in his de novo hearing.

Because we find that the referring court did not abuse its discretion, we affirm the

judgment of the referring court.

      In July of 2017, W.S. was removed from his mother when he was approximately

three days old. William participated in the early stages of this proceeding, including the

adversary hearing. He participated in some services, including drug tests, but stopped

and was absent for a few months. William later requested a paternity test and was found
to be the father of W.S. in April of 2018. William participated in services with the

Department and largely completed his service plan requirements. Because William had

been participating in services, in July of 2018, the trial court granted his motion for

extension of the case for 180 days and set the new dismissal date for January 19, 2019. At

a permanency hearing in October, a final hearing was scheduled for January 8, 2019.

William filed a request for a jury trial on November 13, 2018.

        On January 8, 2019, counsel for William filed a motion to withdraw his request for

a jury trial and that same day, the trial court signed an agreed order that withdrew the

jury trial request. The trial commenced on January 15, 2019, and continued on February

28 and March 6, 2019 before an associate judge. The associate judge informed the parties

of her findings by letter on March 7, 2019. William requested a de novo hearing of the

evidentiary sufficiency relating to the predicate ground for termination and best interest

of the child on March 11, 2019. William filed a request for a jury trial on March 12, 2019.

        The attorney/guardian ad litem for the child filed a written objection to the request

for a jury trial and a motion to quash the request for a jury trial, which was heard by the

referring court on March 22, 2019. On March 27, 2019, the referring court granted the

motion to quash the request for a jury trial. The de novo hearing took place before the

referring court on April 5, 2019, and the referring court granted the termination of

William's parental rights.




In the Interest of W.S., a Child                                                       Page 2
        William complains that the referring court abused its discretion by denying the

request for a jury trial he filed on March 12, 2019. We review the trial court's denial of a

request for a jury trial for an abuse of discretion. In re A.L.M.-F., No. 17-0603, ___ S.W.3d

___, 2019 Tex. LEXIS 426, 2019 WL 1966623, at *8 (Tex. May 3, 2019). A trial court abuses

its discretion when its decision is arbitrary, unreasonable, and without reference to

guiding principles. Id.

        The right to a de novo hearing is found in Section 201.015 of the Family Code.

Under Section 201.015, a de novo hearing is permitted only if requested within three

working days after notice of the associate judge's decision and the hearing must be held

within thirty calendar days after the notice. TEX. FAM. CODE ANN. § 201.015(a), (f). The

Texas Supreme Court has recently decided that there is no statutory right to a jury trial

in a de novo hearing, but the referring court has the discretion to allow one. See In re

A.L.M.-F. at *16.

        In describing the standard of review in determining whether or not a trial court

erred by denying a request for a jury trial in a de novo hearing, the Texas Supreme Court

has further stated:

        When a jury trial is available as a matter of right, a timely request is
        presumptively reasonable and ordinarily must be granted absent evidence
        that granting the request would "(1) injure the adverse party, (2) disrupt the
        court's docket, or (3) impede the ordinary handling of the court's business."
        But because section 201.015 does not afford a right to a jury trial in a de novo
        hearing, no presumption arises. Though injury, disruption, and
        impediment remain useful factors guiding the court's decision to grant or
        deny a first-time jury demand, no presumption tips the scale one way or
In the Interest of W.S., a Child                                                           Page 3
        the other, leaving the ultimate decision within the trial court's sound
        discretion.

Id. at *18 (internal citations omitted).

        At the hearing on the motion to quash the request for a jury trial, William argued

that the case could be set for a jury trial on April 1, April 8, or April 15, 2019. 1 The case

would be a second setting on April 1 or April 8, meaning that there was a case that had

been set previously ahead of this one. William stated that he would be willing to submit

all but four witnesses by the prior trial transcript to be read to the jury in order to

minimize prejudice to the other parties. However, the Supreme Court stated in In re

A.L.M.-F. that it was uncertain whether or not Section 201.015(c) would even allow prior

testimony from the proceedings before the associate judge to be considered in a jury trial

in the referring court. Id. at *19. The Court further recognized that even if that were an

allowable procedure, the referring court "could reasonably conclude the Department

would be unfairly prejudiced if forced to rely on the cold written word in lieu of live

testimony before the jury." Id.

        The ad litem and the Department objected to a jury trial because the reporter's

record from the trial before the associate judge would not be available until April 2, 2019,

which was after the April 1, 2019 date and the April 15, 2019 date was after the 30 day

deadline found in Section 201.015(f).            Further, the ad litem argued that as a solo



1There was no evidence presented that these assertions were in fact, correct, but neither the ad litem nor
the Department disputed these contentions at the hearing.

In the Interest of W.S., a Child                                                                   Page 4
practitioner, he would be unable to prepare adequately for a jury trial by that time or

have the time available to try the case to a jury, which would require significantly more

time as opposed to a bench trial which would consume less time.

        The Department objected to the request for a jury trial and argued that to have a

jury trial would result in unnecessary expense and delay to the permanency of the child.

The Department further argued that it was unaware if the expert from Travis County that

had testified at the trial before the associate judge would be available at that time.

        Based on the foregoing, by considering the factors the Supreme Court set forth as

being instructive in In re A.L.M.-F., we do not find that the trial court abused its discretion

in granting the motion to quash and denying the request for a jury trial. We overrule

William's sole issue.

CONCLUSION

        Having found no reversible error, we affirm the judgment of the trial court.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed October 16, 2019
[CV06]




In the Interest of W.S., a Child                                                         Page 5
