









Reversed and Remanded and Opinion filed September 9, 2003








Reversed and Remanded and Opinion filed September 9,
2003.
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-02-00905-CV
____________
 
IN THE INTEREST OF J.N.F AND J.M.F.
 

 
On Appeal from the 245th District Court
Harris County, Texas
Trial Court Cause No. 01-50603
 

 
O
P I N I O N
Appellant,
J.S.F., the biological father of minor children J.N.F. and J.M.F. (Athe
children@)
brings this appeal following the trial court=s order terminating his parental
rights to both children, granting their adoption by J.A.B., and changing their
surnames to that of their adoptive father, J.A.B.  Appellant contends the trial court abused its
discretion in denying his request for a jury trial and his request to remove
the children=s guardian ad litem.  Concluding the trial court abused its
discretion when it denied appellant=s request for a jury trial, we
reverse and remand.




FACTUAL
AND PROCEDURAL BACKGROUND
Appellant
and J.S.B., the children=s biological mother, were divorced
in 1995.  Under the terms of the divorce
decree, both appellant and J.S.B. were appointed conservators of the children,
with J.S.B. appointed as the managing conservator.  Under the decree, appellant was granted
specific rights, privileges, powers, and duties, including a requirement that
he pay J.S.B. $500.00 per month in child support.  For almost a year, he made regular payments,
then made sporadic payments, and finally stopped paying after May 1997.
In
addition, following the divorce, appellant was charged with the misdemeanor of
carrying a weapon, and with the felonies of possession of marijuana and
burglary of a habitation.  In April 1998,
appellant was sentenced on the burglary charge to eight years in the Texas
Department of Corrections.
In
March 1997, J.S.B. had married J.A.B.  In
October 2001, J.S.B. and J.A.B. (the appellees in this court) petitioned for
termination of appellant=s parental rights to the children
and for their adoption by J.A.B.  On
November 5, 2001, appellant filed a pro se answer captioned ARespondent,@
in which he requested a jury trial.  The
same day, he also filed a declaration of inability to pay costs, in which he
stated, AI
[J.S.F.], being presently incarcerated in the Darrington Unit of the Texas
Department of Criminal Justice-Institutional Division in Brazoria County,
Texas, verify and declare under penalty of perjury that the foregoing
statements [concerning his income, assets, and expenditures] are correct.@  Appellant did not deposit a jury fee or file
an oath of inability to pay the jury fee, as set forth in Texas Rule of Civil
Procedure 217.




In
December 2001, Bobbie Monroe, the guardian ad litem for the children, filed an
original answer.  In January 2002,
appellant, again pro se, filed a document captioned, AOriginal
Answer, Request for Appointment of Attorney Ad Litem and Motion for Issuance of
Bench Warrant.@ 
He also filed another declaration of inability to pay costs.  Neither document contains a request for, or
refers to, a jury trial.
On
February 25, 2002, Monroe filed a report regarding termination and
adoption.  In the report, Monroe
summarized her interviews and discussions with the two children, their maternal
grandparents, J.S.B., J.A.B., appellant, appellant=s
parents, and appellant=s sister.  Listing five factors related to the best
interests of the children, Monroe concluded by recommending the terminations
and adoptions be granted.
On
April 8, 2002, the court appointed Anthony R. Magdaleno, II, as appellant=s
attorney ad litem.  On April 9, the court
signed a scheduling order setting trial for June 24, 2002.  The scheduling order does not indicate whether
the case was set for jury or bench trial. 
The docket sheet,
however, contains an entry for March 28, 2002, which states, ATermination & Adopt.  Pet=s appear.  Gal appear. 
Resp. file answer asking for jury trial and to bench warrant.@
On
May 16, 2002, Magdaleno filed a document captioned, AAttorney
Ad Litem=s
Original Answer.@ 
The document does not contain a request for, or a reference to, a jury
trial.  On May 16, Magdaleno also filed a
motion requesting that the petitioners be required to deposit an amount into
the registry to cover the attorney ad litem=s costs in representing
appellant.  On June 18, Magdaleno filed a
motion for a continuance, asserting he needed additional time, in part because
of difficulty communicating with appellant resulting from appellant=s
incarceration.[1]  The trial court heard the motions for deposit
of costs and for continuance on June 18, and subsequently denied both by
written orders.




At
the June 18 hearing, appellees= counsel and the court indicated the
case was set for a trial to the court the following week.  Appellant=s counsel, however, stated, AI
think . . . we=re on the jury docket also because I
remember in some of his pro se pleadings there was a request for a jury trial.@  In response, appellees=
counsel observed the jury fee had not been paid.
On
June 20, Magdaleno filed three opposed motions: 
(1) a motion to withdraw as counsel, (2) a motion to remove the children=s
guardian ad litem, and (3) a motion to confirm appellant=s
right to a jury trial.  He also filed an Aappeal@
and motion for reconsideration of the court=s previous rulings on his motions
for costs and continuance.  The motion to
withdraw as counsel was based on counsel=s asserted inability to confer with
appellant and the denial of the motion for a continuance.  The motion to remove the guardian ad litem
was based on the guardian=s alleged lack of objectivity as
evidenced by her February 25, 2002 report in which she recommended termination
and adoption.  The motion to confirm
appellant=s right to a jury trial was based on
appellant=s request in his first pleading and
on an allegation that his failure to pay the jury fee did not operate to the
petitioner=s prejudice.




At
the motions hearing on June 26, appellant argued that his declaration of
inability to pay costs satisfied the civil procedure rule allowing a party, in
lieu of paying the jury fee, to file an affidavit of inability to pay.[2]  Appellees responded (1) appellant had not
paid the jury fee or requested waiver of the fee, (2) the declaration was not a
sworn statement, and (3) appellees had evidence appellant had the ability to
pay the jury fee, i.e., that he had money in a retirement account which
he had not reported on the declaration of inability to pay costs.  Appellees= counsel also directed the court=s
attention to the fact there had already been two, if not three, trial settings,
and the court coordinator had indicated the court could not hear a jury trial
until January 2003.[3]  Finally, the guardian ad litem stated, AI
feel that the longer this case drags out the more emotional harm that=s
being done to the children in anticipation of what might happen at the end of
the trial.@ 
The trial court denied appellant=s motion for a jury trial.
The
court again denied a motion for continuance. 
The court also denied the motion to remove the guardian ad litem,
stating appellant could call the guardian at trial to challenge her
opinion.  Finally, the court delayed,
until trial, a decision on the motion for costs.
Following
a trial to the court on July 2 and 3, 2002, the trial court rendered
judgment  terminating appellant=s
parental rights to both children, granting their adoption by J.A.B., and
changing their surnames from that of appellant to that of the adoptive
father.  The court also ordered appellees
to pay appellant=s attorney ad litem $7,500 in
attorney=s
fees plus post judgment interest.
DISCUSSION
Points of Error One and Two:  Demand for Jury Trial
Overview
In
point of error one, appellant contends the trial court abused its discretion in
denying him the right to a jury trial. 
In point of error two, he contends the denial of his request for a jury
trial was not harmless.  Appellant argues
he timely filed a request for a jury trial in his first pro se answer and
properly filed a declaration of inability to pay costs.  Appellees respond (1) appellant waived his
request for a jury trial; (2) he never paid a jury fee; (3) his declarations of
inability to pay costs are not substitutes for a declaration of inability to
pay the jury fee; (4) even if appellant=s request was proper, appellees
rebutted the presumption appellant=s jury demand was made within a
reasonable time; and (5) any abuse of discretion in denying the jury demand was
harmless.




Standard
of Review
We
review the trial court=s denial of a party=s
demand for a jury trial under an abuse of discretion standard.  Mercedes-Benz Credit Corp. v. Rhyne,
925 S.W.2d 664, 666 (Tex. 1996).  This
standard requires a review of the entire record.  Id.  The test for abuse of discretion is
whether the trial court acted without reference to any guiding rules and
principles.  Downer v. Aquamarine
Operators, Inc. 701 S.W.2d 238, 241B42 (Tex. 1985).
Appellant=s Request for a Jury Trial
The
right to a jury trial is guaranteed by the Texas Constitution.  See
Tex. Const. art. I, '
15 (stating A[t]he right of trial by jury shall
remain inviolate@). 
In civil cases, the right to a jury trial is not automatic, but, rather,
arises only when a party has demanded a jury trial and paid the applicable jury
fee.  Gen. Motors Corp. v.
Gayle, 924 S.W.2d 222, 226 (Tex. App.CHouston [14th Dist.] 1996, original
proceeding), leave denied without prejudice, 940 S.W.2d 598 (Tex. 1997)
(per curiam).  Under Texas Rule of Civil
Procedure 216(a), a party desiring a jury trial must make a written request for
it not less than thirty days before the date set for trial of the cause on the
non-jury docket.  Tex. R. Civ. P. 216(a).  A party must also deposit a fee with the
clerk of the court within the time for making a written request for a jury
trial.  Tex.
R. Civ. P. 216(b).  A party who is
unable to afford the deposit for the jury fee shall file an affidavit to that effect
within the time for making such deposit; and the court shall then order the
clerk to enter the suit on the jury docket. 
Tex. R. Civ. P. 217.  An inmate in the Texas Department of
Corrections may file an unsworn declaration in lieu of an affidavit.  Tex.
Civ. Prac. & Rem. Code Ann. '132.001(a) (Vernon 1997).




In
Hosey v. County of Victoria, a pro se inmate filed a medical malpractice
and negligence suit against the county and two individuals and, in his original
petition, requested a jury trial.  832
S.W.2d 701, 703 (Tex. App.CCorpus Christi 1992, no writ).  Two and a half months later, Hosey filed an
affidavit of inability to pay costs.  Id.  The court eventually granted summary judgment
in favor of the county and one of the individuals, and Hosey moved for summary
judgment against the other individual.  Id.  A little less than fourteen months after
Hosey filed his petition, the court sent a dismissal docket letter indicating
the case was set for trial on the merits, to be dismissed for want of
prosecution if not tried.  Id.  When Hosey failed to appear, the trial court
dismissed the case for want of prosecution, just over 14 months from the time
it was filed.  Id.
The
issue on appeal was whether the trial court abused its discretion in dismissing
the case for want of prosecution.  Id.
at 704.  The appellate court observed the
trial court had not followed the supreme court disposition guidelines because
it dismissed the case after it had been on file for only 14 months, when the
supreme court=s timetable for disposition of a
jury trial was 18 months.  Id.  In determining Hosey=s
case should have fallen under the latter guideline, the appellate court
reasoned:
Hosey properly requested a jury trial in his original
petition, which he filed November 13, 1989, and filed his uncontested Affidavit
of Inability to Pay Costs on January 30, 1990. 
Tex. R. Civ. P. 216.  The affidavit was filed in lieu of the
required jury fee.  Tex. R. Civ. P. 145, 216(b).  Hosey was entitled to a jury trial when he
met both Rule 216 criteria.
 
Id. at 705.       




We
find Hosey instructive.  In the
present case, appellant properly requested a jury trial in his original answer,
which he filed November 5, 2001.  See Tex. R. Civ. P. 216(a); see also
Hosey, 832 S.W.2d at 705 (stating appellant properly requested jury trial
in original petition).  The same day,
appellant also filed an uncontested declaration of inability to pay costs.  See Tex.
Civ. Prac. & Rem. Code Ann. '132.001(a); Tex. R. Civ. P. 145, 217.[4]  As an inmate, appellant was permitted to file
an unsworn declaration in lieu of the oath of inability to pay the required
jury fee.  See Tex. Civ. Prac. & Rem. Code Ann. '132.001(a)
(Vernon 1997); Tex. R. Civ. P. 216(b), 217. 
And, under the Corpus Christi court=s reasoning in Hosey,
appellant was entitled to a jury trial when he requested the jury trial in his
answer and filed the declaration of inability to pay costs.  See Hosey, 832 S.W.2d at 705.
Appellees,
however, argue Hosey is distinguishable because the appellate court in Hosey
stated, Athe
affidavit [of inability to pay costs] was filed in lieu of the required jury
fee.@
 Hosey, 821 S.W.2d at 705.  A close reading of Hosey, however,
does not reveal that Hosey=s affidavit contained any specific
mention of his inability to pay the jury fee. 
We therefore follow Hosey and hold appellant, who properly
requested a jury trial and timely filed a declaration of inability to pay
costs, was entitled to a jury trial.[5]
Purported
Waiver or Withdrawal of Request
Appellees,
relying on the rules relating to amended pleadings, argue appellant waived his
jury trial request when he filed his second and third pleadings, neither of
which contained a jury request.  Texas Rule
of Civil Procedure 65 provides:
Unless the substituted instrument shall be set aside on
exceptions, the instrument for which it is substituted shall no longer be
regarded as a part of the pleading in the record of the cause, unless some
error of the court in deciding upon the necessity of the amendment, or
otherwise in superseding it, be complained of, and exception be taken to the
action of the court, or unless it be necessary to look to the superceded
pleading upon a question of limitation.
 
Tex R. Civ. P.
65. 




As
a general rule, the substituted instrument replaces the previous filing and can
work as a nonsuit as to parties and claims. 
See, e.g., Randolph v. Jackson Walker, 29 S.W.3d
271, 274 (Tex. App.CHouston [14th Dist.] 2000, pet
denied) (nonsuit of party and claim); Wren v. Texas Employment Comm=n, 915 S.W.2d 506, 508 (Tex. App.CHouston
[1st Dist.] 1995, no writ) (nonsuit of party). 
An amendment is designed to Aadd something to@
or Awithdraw
something from@ the amending party=s
own pleading in order to cure deficiencies, make corrections, or plead a new
matter.  Tex. R. Civ. P. 62; see Sixth RMA Partners, L.P. v. Sibley,
No. 02-0179, ___S.W.3d ___, 2002 WL 32098157, at *6 (Tex. May 22, 2002) (quoting Glenn v. Dallas Bois D=Arc Island Levee Dist., 114 Tex. 325, 268 S.W. 452, 453
(1925)).  In contrast, a supplemental answer is a response
to the last preceding pleading by the other party, and does not repeat
previously pleaded allegations further than necessary.  Tex.
R. Civ. P. 69; Sixth RMA Partners, 2002 WL 32098157 at *6 (stating the purpose of
supplemental pleadings is to reply to Athe allegations of the opposing party
immediately preceding them@) (quoting Glenn, 268 S.W. at 453).
In the context of reviewing pleas for relief, courts look to
the substance, not merely the title, to determine the nature of the
pleading.  State Bar of Tex. v. Heard,
603 S.W. 2d 829, 833 (Tex. 1980); Criton Corp. v. Highlands Ins. Co.,
809 S.W.2d 355, 357 (Tex. App.CHouston [14th  Dist.]
1991, writ denied).  A court should construe a pleading
liberally in favor of the pleader.  Roark v. Allen, 633 S.W.2d 804, 809 (Tex.
1982); Hand v. Dean Witter Reynolds, Inc., 889 S.W.2d 483, 490 (Tex.
App.CHouston
[14th Dist.] 1994, writ denied).  The
court will look to the pleader=s intent and will hold a pleading
sufficient if the pleading gives fair and adequate notice to the opposing party
of issues and claims so that he may prepare his case.  See Roark, 633 S.W.2d at 810. 




For
three reasons, we decline to construe appellant=s second and third Aoriginal
answers@
as amendments that effected a waiver of appellant=s request for a jury trial.  First, given the nature of the captions and
the chronology of the pleadings, it is not clear the second and third Aoriginal
answers@
were intended as amendments.  Second,
holding the omission of the request in the second and third pleadings to be a
waiver or withdrawal of the request is inconsistent with cases dealing with
waiver of a jury request.  Third, the
only case even arguably supporting waiver by failure to replead is not
persuasive.[6]
The captions and chronology. 
The record contains the following pleadings:
Date              Party  Style and contents of pleading
10-03-01        Appellee         AOriginal Petition for Termination and Adoption of
Stepchildren@:  discovery
level, objection to assignment of case to associate judge, list of petitioners,
statement of jurisdiction, interstate placement information, naming of the
children, person entitled to citation, a property listing, statement of
termination sought, request for appointment of a guardian ad litem, request for
adoption, request for a social study to be conducted as to the circumstances
and condition of the children, request for attorney=s fees, request for the records to be sealed, an ADR statement, and a prayer for relief.
11-05-01         Appellant       ARespondent@:  general denial,
request for a jury trial, request  to be
present at all court proceedings, and a request for a bench warrant.
12-11-01         Ad Litem        AGuardian Ad Litem=s Original Answer in Suit Affecting the Parent-Child
Relationship@:  general denial, request that enumerated
factors be considered in determining the best interest of the children, and
request for guardian ad litem fees and expenses.




01-7-02           Appellant       AOriginal Answer, Request for Appointment of Attorney Ad
Litem and Motion for Issuance of Bench Warrant@: general denial, request for appointment of attorney ad
litem, motion for the issuance of the bench warrant or, in the alternative, a
motion for a continuance.  This answer
concludes with a prayer for relief in which appellant requests (1) issuance of
a bench warrant, (2) appointment of an attorney ad litem, and (3) denial of all
relief requested by appellees.
5-16-02           Appellant       AAttorney Ad Litem=s Original Answer@:  general denial
and request for attorney=s
fees. 
5-16-02           Appellant       AMotion for Deposit of Costs@:  request for
deposit into the registry of the court to cover costs for representing
appellant.
As
the preceding summary indicates, appellant=s second and third pleadings were
not captioned Aamendments.@  The second pleading merely expanded and
provided additional rationale for the requests contained in the first.  Except for reiterating the general denial,
the second pleading deals with procedural issues, not claims or defenses.  This Aoriginal answer@
was filed fewer than thirty days after the guardian ad litem=s
original answer and appears in part to be a response to the guardian ad litem=s
list of factors for determining the best interest of the children.  Unlike appellant=s
first pleading, the second, in the motion for issuance of a bench warrant,
contains a specific reference to determining the best interest of the children
and contains citation to case law supporting appellant=s
right to attend the proceeding and testify concerning the future of his
children.  Finally, appellant added his
request for the appointment of an attorney ad litem.
The
third pleading, filed by the attorney ad litem and captioned AAttorney
Ad Litem=s
Original Answer,@ consists of merely a general denial
and a request for attorney fees.  It
appears to be intended solely to insure the attorney would be awarded his fees.[7]




Because
of the nature of appellant=s pleadings and the context in which
each was filed, we are not inclined to hold appellant=s
second and third pleadings constituted Aamendments@
triggering withdrawal or waiver of appellant=s initial jury request.  Furthermore, to so hold would be inconsistent
with the law regarding withdrawal and waiver of a jury request.
 Withdrawal and waiver of a jury request.  AWhen any party has paid the fee for
a jury trial, he shall not be permitted to withdraw the cause from the jury
docket over the objection of the parties adversely interested.@  Tex.
R. Civ. P. 220; see Zemanek v. Boren, 810 S.W.2d 10, 11B12
(Tex. App.CHouston [14th Dist.] 1991, no
writ.).[8]  Nevertheless, Aunless an objection is made to the
withdrawal of a case from the jury docket, the non-requesting party has no
right to a jury trial.@ 
Lambert v. Coachmen Indus. of Tex., Inc., 761 S.W.2d 82, 85 (Tex.
App.CHouston
[14th Dist.] 1988, writ denied).  If a
party who has requested a jury trial in an initial pleading could effectively
withdraw the request simply by omitting it in subsequent pleadings, the
non-requesting party would be forced to scrutinize all such pleadings in order
to avoid waiving a jury trial by failing to object to the withdrawal.  See id. 




Furthermore,
omitting a jury request from subsequent pleadings does not rise to the level of
inaction that has been held to constitute the requesting party=s
waiver of a jury trial.  In Green v.
W.E. Grace Manufacturing Co., the supreme court held that Aneither
the judge nor the opposite party have the authority to dispense with a jury
without the assent of the party originally demanding it.@  422 S.W.2d 723, 725 (Tex. 1968).  In 1970, the supreme court amended Texas Rule
of Civil Procedure 220 to provide that any party=s failure to appear for trial waives
that party=s right to a jury trial.  Order of July 21, 1970 (455B56
S.W.2d [Tex. Cases] xliii) (effective Jan. 1, 1971).  There have, however, been no other changes to
Rule 220 since Green was decided. 
See Cardenas v. Montfort, Inc., 894 S.W.2d 406, 408 (Tex. App.CSan
Antonio 1994), writ denied, 924 S.W.2d 156 (Tex. 1996) (per curiam).
Based
on Rule 220 and Green, the Cardenas court concluded, AA
court . . . does not have discretion, when a party has properly requested a
jury trial under TRCP 216, and is present in court, to deny that party a jury
trial without that party=s assent.@  Id. 
The court further noted, Aassent@ means  ACompliance;  approval of something done; a declaration of
willingness to do something in compliance with a request; acquiescence;
agreement.  To approve, ratify and
confirm.  It implies a conscious
approval of facts actually known, as distinguished from mere neglect to
ascertain facts.  Sometimes it is
equivalent to >authorize=.@  Id. n.1 (quoting Black=s Law Dictionary
106 (5th ed. 1979) (emphasis added by court)).




The
Cardenas court Aemphasize[d] that assent to the
removal of a case from the jury docket is easily implied [sic] in a situation
in which a party appears before the court without objection and proceeds to try
its case before the bench, especially when that party is represented by an
attorney.@ 
Id. at 409.  Nevertheless,
the Cardenas court declined to hold a pro se plaintiff implicitly
assented to waive a jury trial when there was no evidence she Aappeared
before the court without objection and called upon the court to decide an issue
of fact,@
but instead Ashe never announced ready, and
protested through the entire proceeding that she did not know what actions to
take and that she needed an attorney.@ 
Id. at 409B10.
Appellant
omitted his jury request in a pro se pleading; his counsel omitted it in a pleading
directed mainly toward recovery of his attorney=s fees.  Upon realizing there was uncertainty whether
the case was set on the jury docket, appellant, through counsel, filed a motion
to confirm his right to a jury trial. 
Appellant appeared for trial and, by his motion, objected to a non-jury
trial.  His omission of the request in
his second and third pleadings does not constitute implicit assent to a
non-jury trial.
            Lack
of mandatory or persuasive authority. 
Finally, appellees cite no authority establishing a request for a jury
trial, once properly requested in a pleading, is considered withdrawn when the
request is not reiterated in subsequent pleadings.  This court has found but a single case:  Texas Valley Insurance Agency v. Sweezy
Construction, Inc., 105 S.W.3d 217 (Tex. App.CCorpus Christi 2003, no pet.).  In that case, the court of appeals stated, ABecause
appellee omitted its jury requests in its amended petitions, all subsequent to
the second amended petition, appellee effectively withdrew its jury request.@  Id. at 220.
Texas Valley
does not provide persuasive authority for deciding the present case.  In Texas Valley, the petitions
omitting the jury trial request were captioned Aamended@
petitions. Id. at 219.  In the
present case, appellant=s second and third answers were
captioned AOriginal Answer,@
thus not clearly indicating whether each pleading was intended to supplement,
or substitute for, the preceding pleading.




Furthermore,
in Texas Valley, the trial court had initially signed an order setting
the case for a jury trial even though the appellee had not met the Rule 216
requirements.  See id.  The trial court then subsequently placed the
case on the non-jury docket, and despite the appellants=
filing a request and paying the fee, held a trial before the bench.  Id. at 219B220.  The court of appeals reversed, holding that,
for the trial court to vacate or change its order setting the case for jury
trial, the court had to give appellants, who were not the party initially
requesting a jury trial, a reasonable time to comply with Rule 216.  Id. at 221B22
(following Rhyne, 925 S.W.2d at 666).
Given
the facts and procedural posture of Texas Valley, we decline to follow
the court=s statement that a party effectively
withdraws its jury request by not including it in subsequent amended pleadings.
 Accordingly, on the facts of the present
case, we hold appellant met the Rule 216 and 217 requirements for a jury trial.
Purported
Rebuttal of Presumption Demand was within a AReasonable Time@       
A
request for a jury trial made in advance of the thirty day deadline is presumed
to have been made a reasonable time before trial.  Halsell v. Dehoyos, 810 S.W.2d 371, 371
(Tex.1991) (per curiam); Wittie v. Skees, 786 S.W.2d 464, 466 (Tex. App.CHouston
[14th Dist.] 1990, writ denied).  A party
may rebut the presumption by showing that the granting of a jury trial would
operate to injure the adverse party, disrupt the court=s
docket, or impede the ordinary handling of the court=s
business.  Halsell, 810 S.W.2d at
371; In re V.R.W., 41 S.W.3d 183, 194 (Tex. App.CHouston
[14th Dist.] 2001, no pet.); Wittie, 786 S.W.2d at 466.  The evidence to support such a showing must
appear in the record.  V.R.W., 41
S.W.3d at 194; see Halsell, 810 S.W.2d at 371; Wittie, 786 S.W.2d
at 466; Weng Enter. v. Embassy World Travel, Inc., 837 S.W.2d 217, 222
(Tex. App.CHouston [1st Dist.] 1992, no writ).




Appellees
argue they have rebutted the presumption appellant=s
jury demand was made a reasonable time before trial.  They point to the guardian ad litem=s
statement to the court that another postponement would cause emotional harm to
the children.  They also point to their
own counsel=s statement that, according to the
court coordinator, the next jury trial setting was not until January of
2003.  Neither statement was sworn or
supported by documentation.  Such
statements are not evidence.  See In
re N.R.C., 94 S.W.3d 799, 808 n.5 (Tex. App.CHouston [14th Dist.] 2002, pet.
denied).  In short, appellees placed no
evidence on the record to support a showing of injury, disruption of the court=s
docket, or an impediment to the ordinary handling of the court=s
business.  See Halsell, 810 S.W.2d
at 371.
Appellant properly perfected a jury demand a reasonable time
before trial.  We sustain appellant=s point of error one.
Harm
In his second point of error, appellant argues that the trial
court=s denial of a jury trial was not
harmless error.  A refusal to grant a
jury trial is harmless error only if the record shows that no material issues
of fact exist and an instructed verdict would have been justified.  Halsell, 810 S.W.2d at 372 (citing Olson
v. Texas Commerce Bank, 715 S.W.2d 764, 767 (Tex. App.CHouston [1st Dist.] 1986, writ ref=d n.r.e.)).  In view of the disputed facts surrounding
appellant=s fitness as a parent, an issue of
material fact exists and a directed verdict would not have been
appropriate.  See Simpson v. Stem,
822 S.W.2d 323, 325 (Tex. App.CWaco 1992, orig. proceeding) (stating permanent custody of
children clearly involves factual disputes on which jury could pass).  Therefore, we conclude the trial court=s denial of appellant=s timely request for jury trial is
not harmless error.
We sustain appellant=s point of error two.  Accordingly, we reverse the judgment of the
trial court and remand the cause for a new trial before a jury.
Point of Error Three: Denial of Motion to Remove the
Guardian ad Litem[9]
In point of error three, appellant contends the trial court
abused its discretion in denying his motion to remove the children=s guardian ad litem, Bobbie
Monroe.  Appellant relies on Texas Family
Code section 107.006(c), which provides:




A party to a proceeding in which a person is appointed
as a guardian ad litem or an attorney ad litem may object to appointment of the
person at any time before the date of the trial of the proceeding.  A party may object under this subsection by
filing a written motion stating the grounds and facts on which the party
believes that the person appointed lacks objectivity or is failing to fulfill
the person's responsibilities as an ad litem as outlined in the written statement
of ad litem responsibilities.  The court
shall promptly rule on an objection raised under this subsection and shall
order the removal of the guardian ad litem or attorney ad litem if the court
finds that the objection is justifiable.
 
Tex. Fam. Code Ann. ' 107.006(c) (Vernon 2002).
Removal of a guardian ad litem under this section is within
the trial court=s discretion.  Gonzalez
v. Gonzalez, 26 S.W.3d 657, 659 (Tex. App.CSan Antonio 2000, no pet.).  We therefore review the trial court=s denial of the motion for an abuse
of discretion.  Id.  A trial court abuses its discretion when it
acts without reference to any guiding rules or principles.  N.R.C., 94 S.W.3d at 808.




Appellant contends the following factors are evidence of
Monroe=s bias: (1) she prepared a report
prior to trial recommending termination of parental rights and adoption; (2)
she interviewed appellant only once, but had free access to appellees; and (3)
in preparing the report, Monroe did not contact the adoptive father=s children or former wife despite
noting that the adoptive father did not have a good relationship with his
children from the former marriage and they refused to see him.[10]  Monroe explained she prepared the report in
February, thinking the trial would take place sooner than it did.  After interviewing numerous parties and doing
a thorough investigation, she based her recommendation on Athe best interest [sic] of the
children; namely, their safety, their emotional well-being.@ 
Given that appellant was incarcerated and his own counsel expressed
difficulty communicating with him, and given the greater number of persons to
interview in appellees= household, the difference in the amount of contact is
understandable and hardly evidence of bias. 
Finally, at trial, Monroe explained she had talked to several people
regarding J.A.B.=s relationship with his biological children because it was Athe biggest problem.@
The trial court did not abuse its discretion in denying
appellant=s motion to remove Monroe as guardian
ad litem.  We overrule point of error
three.
CONCLUSION
Having held the trial court abused its discretion in denying
appellant=s jury demand and the error was not
harmless, we remand the cause to the district court for a new trial before a
jury.
 
 
 
 
/s/        John S. Anderson
Justice
 
 
 
 
Judgment rendered
and Opinion filed September 9, 2003.
Panel consists of
Justices Anderson, Seymore, and Guzman.
 
 
 
 
 




[1]  The motion is
represented as an unopposed motion.  At
the hearing, appellees did oppose the motion.


[2]  See Tex. R. Civ. P. 217.


[3]  Appellant
objected to Athe hearsay testimony of the court coordinator.@  Additionally,
the only scheduling order in the appellate record setting a trial date is the
order setting trial on June 24, 2002. 
The case was tried July 2B3, 2002.


[4]  Appellees
direct this court=s attention to the June 26, 2002 hearing in which they
offered evidence that appellant had adequate funds to pay a jury fee.  Appellees did not file a written contest
giving notice of their objection to the declaration.  See Tex.
R. Civ. P. 145.  Furthermore,
there is nothing in the record to indicate the trial court received the
document into evidence or ruled on appellees= oral
objection.  See id.


[5]  The facts of
the present case are even more compelling than those in Hosey.  The appellant in Hosey was the
plaintiff at trial.  See Hosey v.
County of Victoria, 832 S.W.2d 701, 703 (Tex. App.CCorpus Christi 1992, no writ).  He was therefore required either to file
security for costs or an affidavit of inability to pay.  See Tex.
R. Civ. P. 142, 145.  Appellant in
the present case, however, was the defendant in the trial court, and was under
no requirement to file an affidavit of inability to pay costs unless he wanted
a jury trial, the only procedural event for which he was required to pay a fee.


[6]  We also note
that the trial for which appellant sought a jury involved a right of
constitutional dimension.  See Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985).  The
Supreme Court has characterized the right to raise one=s children as Aessential,@ and Afar more precious . . . than property rights.@  Stanley v.
Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1972) (citations
omitted); see Holick, 685 S.W.2d at 20. 
A termination decree is complete, final, and irrevocable, forever
divesting that natural right as well as all legal rights except for the child=s right to inherit. 
See Holick, 685 S.W.2d at 20. 
Thus, in the context of interpreting the predecessor of Family Code
section 161.001, the Texas Supreme Court has advised that we must strictly
scrutinize any decision that severs the natural tie between parent and child to
be certain that children=s
interests are best served and parental rights are protected.  Id. 
Given that the trial in the present case was one that couldCand, in fact, didCresult in termination of appellant=s parental rights, we hesitate to hold appellant waived
his jury trial request simply by not reiterating it in his second and third
pleadings.


[7]  The attorney
ad litem appears to have acted out of an abundance of caution because we find
nothing requiring the attorney ad litem to request fees by means of a
pleading.  Section 107.015 of the Texas
Family Code provides: 
 
(a) An attorney appointed to represent a . . . parent
as authorized by this subchapter is entitled to reasonable fees and expenses in
the amount set by the court to be paid by the parents of the child unless the
parents are indigent.
 
(b) If the court or associate judge determines that
one or more of the parties are able to defray the costs of an attorney ad litem=s fees and expenses . . . , the fees and expenses may
be ordered  paid by one or more of those
parties, or the court . . .  may order
one or more of those parties . . . to pay the sums into the registry of the
court.
 
Tex. Fam. Code Ann. _ 107.015 (a)B(b)
(Vernon 2002); see In re A.M., 974 S.W.2d 857, 865B66 (Tex.  AppCSan Antonio 1998, no pet.) (stating when there is a
mandatory statute for awarding ad litem fees then a lack of pleading for fees
will not be held against ad litem).


[8]  As discussed above, in the present case, appellant filed
a declaration of inability to pay costs in lieu of the fee.


[9]  Although we
are reversing based on appellant=s points
of error one and two, we address his point of error three because it may arise
again on retrial.  See Edinburg Hosp.
Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997) (addressing issue not
essential to disposition of this case in order to provide guidance to district
court on retrial).


[10]  At trial,
Monroe testified she had talked with the adoptive father=s former wife the weekend before trial.  Also, contrary to appellant=s characterization, Monroe did not testify she had Afree access@ to
appellees, but that she had Athe communication I needed.  If I needed to talk to them, I could
call.  I=ve been
in court with them.@


