                                         NO. 12-14-00327-CV

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                             TYLER, TEXAS

                                                           §        APPEAL FROM THE 294TH
IN THE INTEREST OF

K. W. AND P. W.,                                           §        JUDICIAL DISTRICT COURT

CHILDREN
                                                           §        VAN ZANDT COUNTY, TEXAS


                                         MEMORANDUM OPINION
         K.W. appeals the termination of his parental rights. In two issues, he challenges the order
of termination. We affirm.


                                                  BACKGROUND
                                            1
         K.W. is the father of K.W.1, born February 6, 2008, and P.W., born June 22, 2011. A.K.
is the mother of the child and is not a party to this appeal. On October 16, 2013, the Department
of Family and Protective Services (the Department) filed an original petition for protection of
K.W.1 and P.W., for conservatorship, and for termination of K.W.‘s parental rights.                                The
Department was appointed temporary managing conservator of the children, and A.K., the
children‘s mother, was appointed temporary possessory conservator with limited rights and
duties. K.W. was granted limited access to the children.
         At the conclusion of the trial on the merits, the trial court found, by clear and convincing
evidence, that K.W. had engaged in one or more of the acts or omissions necessary to support
termination of his parental rights under Section 161.001(1) of the Texas Family Code,

         1
            The initials of the father and his oldest child are the same. Therefore, we will refer to the father as K.W.
and to his oldest child as K.W.1.
subsections (D), (E), (N), (O), and (Q). The trial court also found that termination is in the
children‘s best interest. Based on these findings, the trial court ordered that K.W.‘s parental
rights be terminated. This appeal followed.


                                    REQUEST FOR JURY TRIAL
        In his first issue, K.W. argues that the trial court erred by refusing to grant his request for
a jury trial.
Applicable Law
        We review the trial court‘s denial of a jury demand for an abuse of discretion. Mercedes–
Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). We examine the entire record,
and will conclude that the trial court abused its discretion only if the trial court‘s decision is
arbitrary, unreasonable, and without reference to guiding principles. Id.
        We recognize that ―[t]he right to [a] jury trial is one of our most precious rights, holding
‗a sacred place in English and American history.‘‖ Gen. Motors Corp. v. Gayle, 951 S.W.2d
469, 476 (Tex. 1997). But in a civil case, the right to a jury trial arises only when a party files a
written jury request not less than thirty days in advance of the date set for trial and pays the jury
fee. TEX. R. CIV. P. 216. And when a trial court‘s pretrial scheduling order changes the deadlines
set forth in a procedural rule, the trial court‘s order prevails. Lindley v. Johnson, 936 S.W.2d
53, 55 (Tex. App.—Tyler 1996, writ denied) (citing ForScan Corp. v. Dresser Indus., Inc., 789
S.W.2d 389, 393 (Tex. App.—Houston [14th Dist.] 1990, writ denied) (trial court‘s pretrial order
that established deadline for pleading amendments prevailed over deadline in procedural rule)).
A trial court does not abuse its discretion by denying a jury trial when there was no timely
request. Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex. 1985); see Martin v. Black, 909 S.W.2d
192, 197 (Tex. App.—Houston [14th Dist.] 1995, writ denied). Texas courts have held that a
trial court ―should accord the right to jury trial if it can be done without interfering with the
court‘s docket, delaying the trial, or injuring the opposing party.‖ Gayle, 951 S.W.2d at 476.
Analysis
        In this case, the trial court entered a scheduling order in November 2013, which stated
that a party must submit a written jury request ―no less than sixty days prior to the initial date set
for trial.‖ At the permanency hearing on April 10, 2014, the trial court set the case for trial on
September 11, 2014. K.W. filed his written jury request on August 20, 2014. After a hearing on



                                                  2
September 2, 2014, the trial court found that K.W.‘s request for a jury trial was untimely and
denied it. The record shows that the bench trial took place on October 9, 2014.
       We note that K.W.‘s jury request was untimely under both the general rule and the
specific order in this case. His jury request was filed less than thirty days before trial, making it
untimely according to Rule 216, and less than sixty days before trial, making it untimely
according to the trial court‘s scheduling order. See TEX. R. CIV. P. 216; In re A.H., No. 12-10-
00246-CV, 2011 WL 5166400, at *2 (Tex. App.—Tyler Oct. 31, 2011, pet. denied) (mem. op.).
But even if there had been a proper jury request, K.W. waived any error because he failed to
object when the trial court proceeded with a bench trial. See In re K.M.H., 181 S.W.3d 1, 16
(Tex. App.—Houston [14th Dist.] 2005, no pet.); In re D.R., 177 S.W.3d 574, 580 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied) (―[A] perfected right to a jury trial in a civil case may be
waived by a party‘s failure to act when the trial court proceeds with a bench trial.‖).
       Accordingly, we hold that the trial court did not abuse its discretion in denying K.W.‘s
request for a jury trial. We overrule K.W.‘s first issue.


                              TERMINATION OF PARENTAL RIGHTS
       Involuntary termination of parental rights embodies fundamental constitutional rights.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53
S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ
denied). Because a termination action ―permanently sunders‖ the bonds between a parent and
child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352
(Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.).
       Section 161.001 of the family code permits a court to order termination of parental rights
if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West 2014); In re J.M.T., 39
S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have engaged in any
one of the acts or omissions itemized in the first subsection of the statute. TEX. FAM. CODE ANN.
§ 161.001(1) (West 2014); Green v. Tex. Dep’t of Protective & Regulatory Servs., 25 S.W.3d
213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237.                 Second,
termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(2) (West
2014); In re J.M.T., 39 S.W.3d at 237. Both elements must be established by clear and
convincing evidence, and proof of one element does not alleviate the petitioner‘s burden of



                                                  3
proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39
S.W.3d at 237.
       The clear and convincing standard for termination of parental rights is both
constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911
S.W.2d at 439. Clear and convincing evidence means ―the measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations
sought to be established.‖ TEX. FAM. CODE ANN. § 101.007 (West 2014). The burden of proof is
upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.


                                       STANDARD OF REVIEW
       When confronted with both a legal and factual sufficiency challenge, an appellate court
must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619
S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no
pet.). In conducting a legal sufficiency review, we must look at all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have formed a firm
belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable
fact finder could do so and disregard all evidence that a reasonable fact finder could have
disbelieved or found incredible. Id.
       The appropriate standard for reviewing a factual sufficiency challenge to the termination
findings is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the petitioner‘s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). In determining whether the fact finder has met this standard, an appellate court considers
all the evidence in the record, both that in support of and contrary to the trial court‘s findings.
Id. at 27-29. Further, an appellate court should consider whether disputed evidence is such that a
reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In
re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the
witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d
575, 580 (Tex. App.–Houston [1st Dist.] 1997, pet. denied).




                                                  4
                                 BEST INTEREST OF THE CHILDREN
        In his second issue, K.W. contends that the evidence is legally and factually insufficient
to support a finding that termination of his parental rights is in the best interest of the children. In
determining the best interest of the child, a number of factors have been considered, including
(1) the desires of the child; (2) the emotional and physical needs of the child now and in the
future; (3) the emotional and physical danger to the child now and in the future; (4) the parental
abilities of the individuals seeking custody; (5) the programs available to assist these individuals;
(6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or
omissions of the parent that may indicate the existing parent-child relationship is not a proper
one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d
367, 371-72 (Tex. 1976).
        This list is not exhaustive, but simply indicates considerations that have been or could be
pertinent. Id. However, the best interest of the child does not require proof of any unique set of
factors nor limit proof to any specific factors. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort
Worth 2001, no pet.). The Holley test focuses on the best interest of the child, not the parent‘s
best interest. Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex.
App.—Dallas 1995, no writ). We apply the Holley factors below.
The Evidence
        Marion Barrera, a Department caseworker, testified that she had been the children‘s
caseworker for almost one year. On October 16, 2013, the children were living with their
mother, A.K., and their maternal grandmother. The Department removed them on that date
because of allegations of abuse and neglect by A.K. and the maternal grandmother. However,
Barrera admitted, there were no allegations against K.W. at that time, nor was he living in the
household. In fact, when the children were removed, K.W.‘s whereabouts were unknown. The
Department located K.W. in November 2013 in the Van Zandt County jail. Barrera believed
K.W. had been charged with burglary of a habitation.
        Barrera stated that while K.W. was in jail, she took him the family plan of service. She
explained to K.W. that the document was a family plan of service and that when he was released,
the Department would set up services. She testified that they went through the family plan and
talked about every service he was required to do. Barrera believed that K.W. understood the
plan and signed the document. However, K.W. testified that he did not recall receiving a family



                                                   5
plan of service while he was in jail or when he was released from jail in April 2014. He admitted
his signature was on a document that he signed while in jail, but denied that the document was
the family plan of service. Instead, he explained that it was the documentation of the case
against A.K. and her mother. He did not recall reading the document, and stated that no one told
him he was signing a family plan of service.
       K.W. stated that in February 2014, he received deferred adjudication for the offense of
burglary of a building. His community supervision was revoked, however, because he failed to
appear, and he admitted using methamphetamine. Thereafter, he committed another offense that
he described as ―escape while arrested,‖ and was sentenced to three years of imprisonment. He
also was sentenced to twelve months in state jail for the burglary of a building offense. At the
time of trial, K.W. was incarcerated, and had served seven months of his three year sentence. He
admitted that since the case began about a year ago, he had been incarcerated all but the month
of April 2014.
       When K.W. was released from jail in April 2014, he called the Department, but stated
that he never received a response, any ―papers,‖ or a schedule for services. He stated that he
attended Narcotics Anonymous and visited his children three or four times, the only
requirements of the family plan of service that he participated in. Barrera testified that K.W.
refused to submit to a drug test even though she told him that the refusal would constitute a
positive drug test. According to K.W., he refused to take the drug test because he was going to a
job interview at the time. He admitted that he had not paid child support since being ordered to
do so as part of the family plan of service.
       K. W. testified that on October 16, 2013, he knew the children were living with A.K. and
their maternal grandmother. At that time, he said, he was living in Grand Saline, and working at
a pool table service. He had last been involved with the children‘s mother, A.K., two years ago,
and stated that they separated because of her use of illegal drugs, including methamphetamine.
K.W. understood that the children were removed because A.K. and her mother were using drugs
in the house with the children present. He visited the children every other day before they were
removed by the Department, and stated that the children spent the night at his residence every
two to three days. If he was not working, he would keep the children three to four days at a time.
He would take them back to A.K. when he was working even though he knew she was using
illegal drugs, including methamphetamine, while the children were in the house.



                                                6
        K.W. also knew that A.K.‘s mother used drugs, including hydrocodone, Xanax,
marijuana, and methamphetamine. He testified that when A.K. picked up the children, she
seemed sober. However, if he showed up at her house unexpectedly to pick up the children, he
could tell that A.K. was using methamphetamine. He admitted allowing the children to return to
A.K.‘s house when he knew or suspected A.K. or A.K.‘s mother was intoxicated.               K.W.
explained that he had a job and that A.K.‘s house was the only place to leave the children. He
also stated that A.K.‘s mother was involved in his escape because he hid from the police at her
house. According to K.W., when his oldest child, K.W.1, was approximately two years old, her
feet were burned. He was living with A.K., but denied being in the house when the incident
occurred. He admitted that K.W. had been using drugs, hydrocodone and soma, without a
prescription. According to testimony at trial, K.W.1 will need continuous surgeries to separate
her toes as a result of her feet being burned.
        K.W. stated that he is taking classes in the ―Change‖ program, and attending Narcotics
Anonymous in prison. He testified that after he is granted parole, his plan is to live with his
father and brother in Quitman.       But K.W. admitted that his father and brother have drug
backgrounds and are currently on probation. He said that both of them go to church, are sober,
and are employed. K.W.‘s employment skills include welding and metal fabrication, and he said
he could work with his father in a metal fabrication shop or with his brother on a land survey
crew.
        K.W. testified that he has a relationship with the children, they are bonded with him, and
he is a very good father. He denied wanting permanent custody of the children, but instead,
wanted them to be with his family until they could live with him. He expected to be granted
parole in November or December 2014, and stated that the Department should wait for however
long it took for him to ―run through the hoops‖ to obtain the children.
        According to the evidence, the children are doing well in the home of K.W.‘s relatives,
who are prospective adoptive parents. Barrera believed it would be in the children‘s best interest
to terminate K.W.‘s parental rights. She testified that K.W. was incarcerated, had no stable
housing for the children, did not financially support the children, and used methamphetamine
after he was released from jail in 2014. He also had a positive drug test because he refused to
submit to drug testing. Barrera stated that K.W.‘s instability, criminal background, and drug
history made him an inappropriate parent for the children. The children‘s ad litem testified that



                                                 7
based on the fact that K.W. did not follow the family plan of service, the children did not need to
live with him. She could not take the chance that K.W. would not get his life together.
Analysis
         Viewing the evidence relating to the Holley factors in the light most favorable to the
finding, we hold that a reasonable fact finder could have formed a firm belief or conviction that
termination of K.W.‘s parental rights is in the best interest of the children. However, K.W.
points out that there is ―scant‖ evidence regarding his drug history, there is no evidence that he
failed to support his children when he was not incarcerated and had the ability to do so, and the
evidence regarding his criminal history was his incarceration on three occasions during the
pendency of the Department‘s case. Further, he said, he was not seeking custody or access to his
children, but requested that his relationship not be severed so that he might be able to show that
he was worthy of access to the children in the future. Although this evidence is contrary to the
trial court‘s finding, it is not so significant that a reasonable trier of fact could not have
reconciled this evidence in favor of its finding and formed a firm belief or conviction that
terminating K.W.‘s parental rights was in the best interest of the children. Therefore, we hold
that the evidence is legally and factually sufficient to support the trial court‘s finding that
termination of K.W.‘s parental rights is in the best interest of the children. Accordingly, we
overrule K.W.‘s second issue regarding the best interest of the children.


                                                   DISPOSITION
         Having overruled all of K.W.‘s issues, we affirm the judgment of the trial court.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice

Opinion delivered February 27, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




                                                          8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         FEBRUARY 27, 2015


                                         NO. 12-14-00327-CV


                   IN THE INTEREST OF K. W. AND P. W., CHILDREN


                                Appeal from the 294th District Court
                        of Van Zandt County, Texas (Tr.Ct.No. 13-00267)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
