Affirmed; Opinion Filed April 27, 2017.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-16-01067-CV

                      IN THE INTEREST OF K.A.H., A CHILD

                         On Appeal from the 15th Judicial District Court
                                    Grayson County, Texas
                              Trial Court Cause No. FA-15-1179

                                MEMORANDUM OPINION
                          Before Justices Francis, Stoddart, and Schenck
                                   Opinion by Justice Stoddart

       Mother appeals the trial court’s order terminating her parental rights to her son, K.A.H.,

following a bench trial. In her sole issue on appeal, Mother contends the trial court abused its

discretion when it denied her written request for a jury trial filed more than thirty days before the

trial setting. We conclude the trial court did not abuse its discretion and affirm the trial court’s

order terminating Mother’s parental rights to K.A.H.

                           FACTUAL AND PROCEDURAL BACKGROUND

       On August 5, 2015, the Department of Family and Protective Services (Department)

received a referral alleging the physical abuse of three-year-old K.A.H.           The Department

investigated, discovered a large bruise on K.A.H.’s head and back allegedly caused by Mother’s

boyfriend, and removed K.A.H. from the home. The Department filed the petition in this case

the next day.
        After Mother completed court-ordered service plans, K.A.H. was returned to her on a

monitored return in early February 2016.              However, on February 28, 2016, K.A.H. was

hospitalized with traumatic brain injuries. The injuries allegedly occurred when Mother went to

the store and left the child with her boyfriend. K.A.H. was in a coma for eighteen days and

hospitalized for a month. He was then moved to a rehabilitation facility for several months. The

Department removed K.A.H. from Mother’s care. On March 18, 2016, the trial court retained

the case, set it for trial on August 3, 2016, and set the final dismissal date on August 26, 2016.1

        Mother’s retained attorney withdrew from the case on May 2, 2016. The trial court asked

Mother at a hearing on May 4, 2016 if she intended to retain another attorney or ask for an

appointed attorney. Mother responded she would file for an appointed attorney on her next day

off from work. However, she did not file for appointed counsel until June 2, 2016.

        Mother appeared without counsel at the permanency hearing on June 1, 2016. At the end

of the hearing, the trial court announced: “There is a final trial date set for August 3rd, 2016, at

9:30 a.m.” The permanency order signed June 1, 2016 states the dates for the dismissal deadline

and the final hearing/trial of the case. After this hearing, Mother completed an affidavit of

indigence and new counsel was appointed for her on June 2, 2016. Mother’s appointed attorney

filed a written answer and jury demand on June 29, 2016, thirty-five days before the August 3rd

trial setting and five days before the close of discovery.

        On August 3, 2016, the date set for trial, the Department asked to begin the final hearing

as a bench trial, then recess the trial for mediation, and complete the bench trial if necessary

before dismissal date of August 26, 2016. Mother’s attorney stated she filed a jury demand for

the case, was not aware this was a final hearing, and had not received discovery responses or

        1
            Because the child was removed after a monitored return, the dismissal deadline was the later of the
original dismissal date or one hundred eighty days after the removal. TEX. FAM. CODE ANN. § 263.403(c). The
original dismissal date was August 8, 2016. Id. § 263.401(a).


                                                     –2–
documentation about the case. Mother’s attorney objected to beginning the final hearing because

a jury demand was filed more than thirty days before the trial setting and she was not adequately

prepared. The attorney argued rule 216 did not require her to schedule a trial setting after filing a

timely jury demand, that scheduling is a clerical matter. The Department objected to the demand

for a jury as “untimely.” The trial court determined the jury request was filed more than thirty

days before the trial setting, but questioned whether it was filed a reasonable time before the

setting under rule 216. TEX. R. CIV. P. 216.

       The trial court discussed some options with the parties, including having a visiting judge

hear the case. After discussions with the attorneys in chambers, the trial court announced:

       Court: The attorneys have attempted — they did work out a mediation time on
       Friday, but they have told me there’s expert witnesses in this if we’re going to
       trial on it. This was set for a final hearing today which is August 3rd. July 4th,
       which was a holiday, would have been the 30 days. I don’t know if it puts that on
       July 5th or the Friday before that which would have been July 1st. Either way, the
       jury demand got filed on June 29th, but no request for a jury trial was made. We
       do not have a jury trial set for Monday. We could probably get a panel, but we
       have things set. The attorneys have other hearings they need to do. I have been
       told by counsel for CPS when we were meeting in chambers that they have expert
       witnesses they would have to get.

       So under Rule 216 I’m going to find it was not a reasonable time before the date
       set for trial because there’s already been an extension granted on this case and that
       puts the drop-dead date when the case has to be decided by on — on August 26th?

       CPS: Yes, sir.

       Court: On August 26th. We are set for a two-week criminal trial that is set on the
       15th which would leave next Monday the 8th being the only date that we could do
       it. I don’t mind starting the bench trial and recessing so the mother’s attorney can
       get whatever documents she can get or whatever discovery she is still entitled to
       get. Certainly, at least the stuff in the file.

       The trial court then recessed the hearing and conducted a bench trial on August 24, 2016

at which Mother’s parental rights were terminated. This appeal followed.

                                      STANDARD OF REVIEW

       We review the trial court’s denial of a party’s demand for a jury trial under an abuse of

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discretion standard. In re J.N.F., 116 S.W.3d 426, 430 (Tex. App.–Houston [14th Dist.] 2003,

no pet.) (citing 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. Id.; see also Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

                                              ANALYSIS

        Mother contends the trial court abused its discretion by denying her request for a jury

trial because the jury demand was filed more than thirty days before the trial date.

        The right to trial by jury is a precious right protected by our constitution. TEX. CONST.

art. I, § 15 (“The right of trial by jury shall remain inviolate.”); Gen. Motors Corp. v. Gayle, 951

S.W.2d 469, 476 (Tex. 1997) (orig. proceeding); White v. White, 196 S.W. 508, 512 (Tex. 1917).

The family code authorizes jury trials in many cases, including those seeking termination of

parental rights. See TEX. FAM. CODE ANN. § 105.002. However, the right to trial by jury in civil

cases is not absolute, it is subject to several procedural requirements. See Willms v. Americas

Tire Co., Inc., 190 S.W.3d 796, 810 (Tex. App.—Dallas 2006, pet. denied); Aronoff v. Texas

Tpk. Auth., 299 S.W.2d 342, 344 (Tex. Civ. App.—Dallas 1957, no writ). The constitution

provides that in cases tried in the district courts, either party has the right to a jury on application

made in open court, “but no jury shall be empaneled in any civil case unless demanded by a

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

such exceptions as may be prescribed by the Legislature.” TEX. CONST. art. V, § 10.

        Under the rules of civil procedure, “No jury trial shall be had in any civil suit, unless a

written request for a jury trial is filed with the clerk of the court a reasonable time before the date

set for trial of the cause on the non-jury docket, but not less than thirty days in advance.” TEX.

R. CIV. P. 216. A party who is unable to afford the fee may file an affidavit of inability to pay


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the fee within the time for demanding a jury trial. TEX. R. CIV. P. 217.

          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); In re V.R.W., 41 S.W.3d 183, 194–95 (Tex. App.—Houston [14th Dist.] 2001, no

pet.), disapproved on other grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002). However, the

presumption may be rebutted by a showing that granting 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. “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.”

Id. at 372.

          Unlike many cases, involuntary termination cases face strict statutory deadlines. See

TEX. FAM. CODE ANN. §§ 263.401–.408.            The case must be dismissed one year after the

Department was appointed as temporary managing conservator “[u]nless the court has

commenced the trial on the merits” or granted a six-month extension as authorized by the statute.

TEX. FAM. CODE ANN. § 263.401. The trial court may not grant an additional extension beyond

the date required for dismissal under subsections (b) or (b-1). Id. § 263.401(c). Nor may the

parties to the suit extend the deadlines by agreement or otherwise. Id. § 263.402(a). Where the

child is returned to the parent on a monitored return, but is later removed by the Department, the

trial court must set a new dismissal date no later than the original dismissal date or 180 days after

the child’s removal from the monitored return. See id. § 263.403(c). In this case, the dismissal

deadline was extended to August 26, 2016 because the child was removed following a monitored

return.

          Due to Mother’s delay in requesting an attorney after her original attorney withdrew,

Mother’s new attorney was appointed only two months before the trial setting. The new attorney

                                                –5–
did not file the answer and jury demand until almost a month after her appointment. At the time

Mother filed the jury demand, the case was pending for over ten months, only eight weeks

remained before the dismissal deadline, and only five days were left before the discovery

deadline. On the day of the trial setting, Mother’s attorney was not prepared to go to trial—

before the court or a jury. Although the jury demand was filed more than thirty days before the

trial setting, the trial court was hampered in managing its docket because of the late request and

looming dismissal deadline. The trial court stated that no jury was available to begin trial on

August 8 and the court had a two-week criminal jury trial beginning August 15, leaving no time

for a jury trial in this case before the August 26 dismissal date. Additionally, the Department

indicated it would need expert witnesses for a jury trial.

       The record shows the trial court in this case considered the guiding principles set out in

rule 216. Nothing in the record indicates the trial court’s docket was materially different on June

29 from the docket on August 3. The trial court was obviously aware of the state of its docket

and its ordinary handling of business. The trial court was also aware of the statutory deadline for

dismissing the case and that the deadline could not be extended under the circumstances of this

case. Further, there is an indication that granting a jury trial at the time it was requested would

have caused injury to the other party, who was left with little time to obtain discovery it might

deem necessary for a jury trial as opposed to a bench trial. The trial court could reasonably

conclude that granting a jury trial would have disrupted the court’s docket, impeded the ordinary

handling of the court’s business, or caused injury to the other parties. On this record, we cannot

conclude that the trial court abused its discretion by denying the request for a jury trial.

       In a termination of parental rights case decided by this Court today, another panel of this

Court concluded that denying a jury trial where the demand for a jury was filed more than 200

days before the trial date was an abuse of discretion. See In re J.M.B., No. 05-16-01311-CV

                                                 –6–
(Tex. App.—Dallas April 27, 2017, no pet. h.). In that case, the court-appointed attorney for the

indigent mother filed a demand for a jury 203 days before the trial setting. Id. slip op. at 4. Six

weeks later at a permanency hearing, the trial court noted the filing of the jury demand, but left

the case on the non-jury docket, in effect forcing the mother to make a second demand for a jury,

even though she had already perfected her right to a jury under rules 216 and 217. Id. The case

remained on the non-jury docket and, when called for the non-jury trial, the trial court denied a

jury trial because there was not time to schedule a jury before the dismissal deadline. Id. slip op.

at 2–3.

          This Court concluded the trial court acted without reference to guiding rules and

principles and abused its discretion by denying a jury trial. Id. slip op. at 4–5. The trial court’s

statements at the permanency hearing several months before trial indicated that setting a jury trial

at that time would not have disrupted the trial court’s docket. Id. Despite this, the trial court left

the case on the non-jury docket and imposed an additional requirement on the mother for

obtaining a jury trial. Id. Although the record in that case showed that granting a jury trial at the

time of the non-jury setting would disrupt the trial court’s docket, the disruption was not due to

the timing of the jury demand. Id. In fact, a jury trial could have been set at the time the demand

was made without disrupting the docket. Id. As a result, the disruption of the docket in In re

J.M.B. arose long after the demand for a jury and did not rebut the presumption that the jury

demand was filed a reasonable time before trial.

          The facts in this case are materially distinguishable from those in In re J.M.B. There is a

vast difference between the reasonableness of a jury request filed 200 days before trial and one

filed thirty-five days before trial. This is particularly so where statutory deadlines require the

trial to commence within a set time or the case will be dismissed. Further, there is no indication

in this record, unlike the record in In re J.M.B., that as of the date the jury demand was filed a

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jury was available before the dismissal deadline. See In re J.M.B., slip op. at 4–5 (judge’s

statements five months before trial indicated holding jury trial before dismissal deadline would

not have disrupted trial court’s docket at that time).

        The abuse of discretion standard is designed to allow trial courts—with their greater

knowledge and understanding of their dockets and the circumstances of the case—to decide such

matters without second guessing by an appellate court. See Downer, 701 S.W.2d at 242 (“The

mere fact that a trial judge may decide a matter within his discretionary authority in a different

manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of

discretion has occurred.”). However, if a trial court acts without reference to any guiding rules

or principles such that its action is arbitrary or unreasonable, an appellate court will find an abuse

of discretion. Id.; see J.M.B., slip op. at 5. The trial court in this case acted with reference to

guiding rules. The short period of time left to begin trial when the jury demand was filed, the

status of the trial court’s docket at that time, and the potential injury to other parties support the

trial court’s decision to refuse a jury trial. Therefore, the trial court’s action was not an abuse of

discretion in this case.

                                            CONCLUSION

        We overrule Mother’s issue on appeal and affirm the trial court’s order of termination.



161067F.P05


                                                       /Craig Stoddart/
                                                       CRAIG STODDART
                                                       JUSTICE




                                                 –8–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                         JUDGMENT

IN THE INTEREST OF K.A.H., A CHILD                     On Appeal from the 15th Judicial District
                                                       Court, Grayson County, Texas
No. 05-16-01067-CV                                     Trial Court Cause No. FA-15-1179.
                                                       Opinion delivered by Justice Stoddart.
                                                       Justices Francis and Schenck participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.



Judgment entered this 27th day of April, 2017.




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