                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00104-CV




        IN THE INTEREST OF C.H., A CHILD




        On Appeal from the 115th District Court
               Upshur County, Texas
               Trial Court No. 633-17




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Stevens
                         MEMORANDUM OPINION
        The Texas Department of Family and Protective Services (the Department) filed a petition

to terminate Mother’s parental rights to her daughter, C.H.1 Mother initially demanded trial by

jury. However, as a result of a mediated settlement, Mother executed a valid, voluntary, and

irrevocable relinquishment of her parental rights to C.H. and agreement that termination of her

parental rights was in C.H.’s best interest. See TEX. FAM. CODE ANN. § 161.103 (West Supp.

2018). Based on the affidavit, the 115th Judicial District Court of Upshur County, Texas,

terminated Mother’s parental rights to C.H.

        In her sole issue on appeal, Mother argues that the trial court erred in holding a bench trial

after she had filed a request for a jury trial. The Department argues that Mother waived her right

to complain about the lack of a jury trial. We agree. For that reason, we affirm the trial court’s

judgment.

        Generally, to preserve a complaint for our review, a party must first present to the trial

court a timely request, objection, or motion stating the specific grounds for the desired ruling if

not apparent from the context. TEX. R. APP. P. 33.1(a)(1). “A limited exception to [the] procedural

preservation rules is the fundamental-error doctrine.” In re B.L.D., 113 S.W.3d 340, 350 (Tex.

2003). In the civil context, the fundamental error doctrine allows for review of unassigned error

when the record demonstrates a lack of jurisdiction. Id. The doctrine also allows for review of

unassigned error in juvenile cases, which are “quasi-criminal” in nature, because “Texas criminal



1
 We do not refer to the parties by name to protect the identity of the child. See TEX. FAM. CODE ANN. § 109.002(d)
(West Supp. 2018).

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jurisprudence recognizes that certain types of error can be reviewed for the first time on appeal.”

Id. at 351. That said, we do not apply “criminal fundamental-error doctrine to parental rights

termination cases.” Id. (finding that the fundamental-error doctrine does not permit review of

unpreserved jury charge error in parental-rights termination cases).

       Citing to the broader categories of error that can be raised for the first time on appeal in

criminal cases, Mother argues that the trial court erred in denying her right to a jury trial. See

Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (citing Marin v. State, 851 S.W.2d

275, 280 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262

(Tex. Crim. App. 1997)). Yet, even though a right to a criminal jury trial is a “waivable-only”

right, in the civil context, 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.” In re

K.W., No. 12-14-00327-CV, 2015 WL 881548, at *1 (Tex. App.—Tyler Feb. 27, 2015, pet.

denied) (mem. op.) (citing TEX. R. CIV. P. 216); see Saldano, 70 S.W.3d at 888. Thus, application

of a fundamental-error doctrine to the right of trial by jury is untenable in parental-rights

termination cases since a party must affirmatively act to secure the right.

       Moreover, “once perfected, the right to a jury trial in a civil case may still be waived by a

party’s failure to act.” In re A.M., 936 S.W.2d 59, 61 (Tex. App.—San Antonio 1996, no pet.);

see In re K.H., No. 02-17-00192-CV, 2017 WL 4413356, at *2 (Tex. App.—Fort Worth Oct. 5,

2017, pet. filed) (mem. op.); see also In re K.S.L., 538 S.W.3d 107, 113 (Tex. 2017) (“Of course

rights, including constitutional rights, can be waived.”). Specifically, failure to object when the

trial court proceeds with a bench trial waives error, even in parental-rights termination cases. K.W.,

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2015 WL 881548, at *2 (citing In re K.M.H., 181 S.W.3d 1, 16 (Tex. App.—Houston [14th Dist.]

2005, no pet.) (op. on reh’g)); In re J.D., No. 2-02-189-CV, 2003 WL 302231, at *4 (Tex. App.—

Fort Worth Feb. 13, 2003, no pet.) (mem. op.); In re K.C., Jr., 23 S.W.3d 604, 608–09 (Tex.

App.—Beaumont 2000, no pet.); see 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.”).

         Here, after she requested a jury trial, Mother executed the affidavit of voluntary

relinquishment and agreed, in writing, “that a final hearing in the lawsuit [could] be held at any

time without further notice to [her].”2 She was represented by counsel at the final hearing and

voiced no objection to the bench trial. We therefore find that Mother waived her right to complain

about the lack of a jury trial on appeal.

         Because Mother waived her sole point of error on appeal, we affirm the trial court’s

judgment.



                                                        Scott E. Stevens
                                                        Justice

Date Submitted:             February 19, 2019
Date Decided:               February 27, 2019




2
 A trial court may terminate a parent’s rights to her child based on a finding, by clear and convincing evidence, (1) that
the parent has executed an irrevocable affidavit of relinquishment of parental rights to the child and (2) that termination
of the parent-child relationship is in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)(k), (2) (West
Supp. 2018). Mother’s affidavit relinquished her parental rights to C.H. and stated that it was in C.H.’s best interest
that her parental rights be terminated. Mother does not explain what material issues of fact existed which required
jury resolution. See A.M., 936 S.W.2d at 61.
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