Affirm in part; Reverse and Remand in part; Opinion Filed April 27, 2017.




                                                                    In The
                                            Court of Appeals
                                     Fifth District of Texas at Dallas
                                                         No. 05-16-01311-CV

                        IN THE INTEREST OF J.M.B. AND T.A.D.B., CHILDREN

                                  On Appeal from the 15th Judicial District Court
                                             Grayson County, Texas
                                       Trial Court Cause No. FA-15-0407

                                           MEMORANDUM OPINION
                                           Before Justices Lang, Myers, and Evans
                                                  Opinion by Justice Myers
           The children’s mother (“Mother”) appeals the trial court’s judgment terminating the

parent–child relationship between her and her two children. Mother brings one issue on appeal

contending the trial court erred by denying her a jury trial when she had filed a written demand

for a jury trial more than thirty days before the final hearing. We conclude the trial court

committed reversible error by denying Mother’s timely request for a jury trial. We affirm the

trial court’s termination of the father’s parental rights,1 reverse the termination of Mother’s

parental rights, and we remand the cause for further proceedings.

                                                           BACKGROUND

           Rule of Civil Procedure 216 provides that there shall not be a jury trial in a civil case

unless a party makes a written request for a jury trial within a reasonable time before the non-

jury trial setting and at least thirty days before the trial setting. TEX. R. CIV. P. 216(a); see also
   1
       The trial court’s judgment also terminated the parent–child relationship between the children and their father. The father does not appeal.
TEX. CONST. art. 5, § 10 (“[N]o jury shall be empaneled in any civil case unless demanded by a

party to the case, and a jury fee paid by the party demanding a jury, for such sum, and with such

exceptions as may be prescribed by the Legislature.”).

       The State filed its original petition for termination of Mother’s parental rights on March

30, 2015. The State’s suit was subject to the Family Code’s one-year dismissal date under

section 263.401 which required dismissal of the suit if trial was not commenced on or before,

March 30, 2016. The trial court granted a six-month extension of the statutory dismissal date,

which moved the dismissal date to September 30, 2016. See TEX. FAM. CODE ANN. § 263.401

(West Supp. 2016).

       Mother filed a written request for a jury trial on February 10, 2016.                   At a

permanency-review hearing on March 23, 2016, attended by Mother and her attorney, the trial

court informed the parties that the case was set for a final trial on August 31, 2016. The trial

court saw Mother’s request for a jury trial in the file. Mother’s attorney told the court she might

withdraw the request but that she needed to consult with Mother first. The court then said the

trial date was for a bench trial, it was “just fine” if Mother wanted a jury trial, but Mother should

tell the court “pretty soon” if she wanted a jury trial. Neither Mother nor her attorney informed

the trial court before the day of trial whether they intended to insist on a jury trial or whether

they preferred a nonjury trial.

       On the day of trial, Mother’s attorney told the trial court she wanted to withdraw from

representing Mother because Mother wanted new counsel, and the attorney requested a

continuance of the trial. The trial court denied the requests for withdrawal and for continuance

because of the pending dismissal date. Mother’s attorney then stated that if the court would not

let her withdraw, then she wanted a re-setting of the case for a jury trial. The trial court denied

that request, stating there was not time to schedule a jury trial before the dismissal date. The

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case was then tried to the court without a jury. At the end of the trial, the court rendered

judgment terminating Mother’s parental rights.

             In the order terminating Mother’s parental rights, the trial court stated, “At the final

hearing on August 31, 2016, Respondent Mother requested a jury trial which was denied by the

Court as untimely.” The trial court also stated in the order that the court found by clear and

convincing evidence that Mother committed actions authorizing termination under section

161.001(b)(1)(D), (E), (F), and (O)2 of the Family Code, and that termination of the parent child

relationship between her and the children was in the children’s best interest. See TEX. FAM.

CODE ANN. § 161.001(b)(1), (2) (West Supp. 2016).

                                                      RIGHT TO JURY TRIAL

             In her sole issue on appeal, Mother contends the trial court erred by denying her request

for a jury trial. “The right to 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.3d 469, 476 (Tex.

1997) (orig. proceeding) (quoting White v. White, 196 S.W. 508, 512 (Tex. 1917)). The Texas

Constitution guarantees the right to trial by jury. See TEX. CONST. art. I, § 15. Likewise, the

Family Code authorizes jury trials in most situations, including termination of the parent–child

relationship. See TEX. FAM. CODE ANN. § 105.002 (West 2014). We review a trial court’s denial


     2
         These statutory provisions for termination are that the parent:
             (D) knowingly placed or knowing allowed the child to remain in conditions or surroundings which endanger the physical
             or emotional well-being of the child;
             (E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical
             or emotional well-being of the child;
             (F) failed to support the child in accordance with the parent’s ability during a period of one year ending within six months
             of the date of the filing of the petition;
             ....
             (O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to
             obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of
             Family and Protective Services for not less than nine months as a result of the child’s removal from the parent under
             Chapter 262 for the abuse or neglect of the child . . . .
TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (F), (O) (West Supp. 2016).



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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 reverse only if the trial court’s decision

is arbitrary, unreasonable, or without reference to guiding principles. Id. (citing Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)).

       To be entitled to a jury trial, Mother had to make a written request for a jury within a

reasonable time and either pay the jury fee or file an affidavit of inability to pay the fee. See

TEX. R. CIV. P. 216, 217. A jury request filed thirty or more days before the trial setting is

presumed reasonable. Halsell v. Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991) (per curiam). The

adverse party may rebut that 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. Id.

       In this case, Mother filed her request for a jury trial on February 10, 2016, 203 days

before the August 31 trial setting. Mother had already filed an affidavit of indigency, so her

right to a jury trial was perfected. The trial court, however, did not move the case from the

nonjury-trial docket to the jury-trial docket. Instead, the trial court left the case on the nonjury-

trial docket and required Mother to make a second jury-trial demand. This procedure was not

authorized by rule or statute. Rule of Civil Procedure 217 states that when a party requests a jury

trial and the party has filed an affidavit of indigency, “the court shall then order the clerk to enter

the suit on the jury docket.” TEX. R. CIV. P. 217. Absent a waiver by Mother of her right to a

jury trial, the court could not impose any additional burdens on Mother to secure a jury trial

when she had previously made a timely written jury-trial demand and had filed an affidavit of

indigency.

       Although the record shows that the granting of a jury trial in this case would have

disrupted the court’s docket, that disruption would not have been due to the date of Mother’s

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jury-trial request. Instead, it would have been due to the trial court leaving the case on the

nonjury-trial docket when the court knew Mother had perfected her right to a jury trial. The trial

court’s statements at the March 23, 2016 hearing indicated that holding a jury trial on the case

before September 30, 2016 would not have disrupted the trial court’s docket if the court had

followed rule 217 and placed the case on the jury-trial docket at that time. Although the trial

court has broad discretion in administering its docket, the trial court has no discretion to deny a

party’s request for a jury trial when the party has requested a jury trial a reasonable time before

the trial date and has paid the fee or filed an affidavit of indigency. See TEX. R. CIV. P. 216, 217;

In re Baker, 495 S.W.3d 393, 396 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding); In

re McDonald, 424 S.W.3d 774, 781–82 ((Tex. App.—Beaumont 2014, orig. proceeding). Cf. In

re K.A.H., No. 05-16-01067-CV, slip op. at 6 (Tex. App.—Dallas Apr. 27, 2017, no pet. h.) (jury

request not filed within reasonable time before trial setting); In re B.P., 10-15-00318-CV, 2016

WL 192292, at *1 (Tex. App.—Waco Jan. 14, 2016, pet. denied) (mem. op.) (“The trial court

has discretion to deny a jury trial in the absence of a timely request for a jury or payment of the

applicable jury fee.”). In this case, the trial court had no discretion to deny Mother a jury trial

when she timely requested it, had not subsequently waived it, and the record showed that holding

a jury trial would not have disrupted the trial court’s docket if the court had followed rule 217

and instructed the clerk to enter the case on the jury-trial docket at the time it was requested. The

trial court’s denial of Mother’s request for a jury trial was made without reference to guiding

principles.

       We conclude the trial court abused its discretion by denying Mother a jury trial when she

filed her jury-trial request more than six months before the trial setting.




                                                 –5–
                                     REVERSIBLE ERROR

       Having found the trial court erred by denying Mother’s request for a jury trial, we must

consider whether the error was reversible. Error is not reversible on appeal unless it probably

caused the rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1). The erroneous

“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.

       For the court to terminate Mother’s parental rights, a jury would have to find Mother

committed an act prohibited by section 161.001(b)(1) and that termination was in the best

interest of the child. See FAM. § 161.001(b)(1), (2). In this case, Mother conceded she had failed

to meet the requirements of the parenting plan, and no evidence shows she completed the plan.

See id. § 161.001(b)(1)(O). Therefore, we must determine whether any evidence shows that

termination of the parent–child relationship was not in the best interest of the children.

       Mother testified she was working and raising her children without problems until her

infant child died due to SIDS, after which she had a nervous breakdown. She was diagnosed as

suffering from paranoid schizophrenia, bipolar disorder, depression, and PTSD. This case was

opened when Mother tried to commit suicide by taking an overdose of medication. During the

time this case was pending in the trial court, Mother was in and out of mental hospitals as health

professionals tried to find the medicines that would work for her mental conditions. Due to the

time she spent in the hospital, she was unable to visit the children regularly and complete the

services required by the parenting plan. When she was not in the hospital, she had difficulty

finding work. She did not have a car or money, so she had difficulty getting to appointments and

could not afford the fees for some of the classes that were part of the parenting plan. She

testified that as of the date of trial, she had been out of the hospital for about two months, the

medicines she was taking were working for her, and her mental health was in order. She also


                                                –6–
testified she had two job offers. She told the trial court she wanted the children placed with

relatives until she could prove herself ready to care for the children. We conclude Mother’s

testimony constitutes some evidence raising a material issue of fact of whether termination of the

parent–child relationship between Mother and her children was in the children’s best interest.

Therefore, the trial court’s denial of Mother’s request for a jury trial was harmful. See Halsell,

810 S.W.2d at 372.

       We sustain Mother’s issue on appeal.

                                        CONCLUSION

       We affirm the trial court’s judgment to the extent it terminates the parent–child

relationship between the children and their father. In all other respects, we reverse the trial

court’s judgment and remand the cause to the trial court for further proceedings..




                                                     /Lana Myers/
                                                     LANA MYERS
                                                     JUSTICE
161311F.P05




                                               –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN THE INTEREST OF J.M.B. AND                          On Appeal from the 15th Judicial District
T.A.D.B., CHILDREN                                     Court, Grayson County, Texas
                                                       Trial Court Cause No. FA-15-0407.
No. 05-16-01311-CV                                     Opinion delivered by Justice Myers. Justices
                                                       Lang and Evans participating.

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part as follows: The judgment of the trial is
AFFIRMED to the extent it terminates the parent–child relationship between Marcus Boyd and
the children; in all other respects, the judgment is REVERSED. We REMAND the cause to the
trial court for further proceedings.


Judgment entered this 27th day of April, 2017.




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