      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00273-CV



                                         J. A. B., Appellant

                                                  v.

                Texas Department of Family and Protective Services, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
         NO. D-1-FM-11-004474, HONORABLE TIM SULAK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant J.A.B. appeals the trial court’s final decree terminating his parental rights

to his child, L.I.B., following a jury trial.1 See Tex. Fam. Code § 161.001. The jury found by clear

and convincing evidence three predicate grounds and that termination of appellant’s parental rights

was in the best interest of his child. See id. § 161.001(1)(D), (E), (O), (2). The trial court rendered

a final decree of termination on the jury’s verdict. For the reasons that follow, we affirm the trial

court’s final decree of termination.2




       1
         We use initials to refer to appellant and his child. See Tex. Fam. Code § 109.002(d); Tex.
R. App. P. 9.8.
       2
          The trial court terminated the parental rights of the mother based upon her execution of an
affidavit of relinquishment of parental rights. See Tex. Fam. Code §§ 161.001(K), .103 (affidavit
of voluntary relinquishment of parental rights). The mother has not appealed the final decree
of termination.
               Appellant raises two issues concerning the jury charge. The charge contained

only questions of termination, and the jury returned a verdict that terminated appellant’s

parental rights under each of the three predicate grounds submitted to the jury.               See id.

§ 161.001(1)(D), (E), (O), (2). Appellant’s issues do not challenge the questions that were submitted

to the jury but the omission of questions. In his first issue, appellant contends that the trial court

abused its discretion when it omitted questions of conservatorship from the jury charge and, in his

second issue, he contends that the trial court’s error in omitting questions of conservatorship caused

him harm. See Tex. R. App. P. 44.1(a)(1) (standard for reversible error in civil cases). He argues

that he has a statutory right under section 105.002 of the family code and a constitutional right under

article I, section 15 of the Texas Constitution to have the jury determine whether or not he should

be appointed as a conservator as an alternative to termination. See Tex. Const. art. I, § 15 (providing

right to trial by jury); Tex. Fam. Code § 105.002(c)(1)(A)–(C) (providing that “a party is entitled to

a verdict by the jury and the court may not contravene a jury verdict on the issues of . . . the

appointment of [conservators]”).

               Appellant further contends that questions of conservatorship were raised by the

written pleadings and supported by the evidence. See Tex. R. Civ. P. 277, 278 (directing trial court

to submit questions, instructions, and definitions that are “raised by the written pleadings and the

evidence” and that are “proper to enable the jury to render a verdict”). His pleadings included a

counter-petition requesting that he be appointed managing conservator or, alternatively, possessory




                                                  2
conservator, and he contends that there was sufficient evidence to support findings that he was a

good father and bonded with his child.3

                We review a trial court’s submission of jury questions under an abuse of

discretion standard. Ayala v. Texas Dep’t of Family & Protective Servs., No. 03-09-00121-CV,

2010 Tex. App. LEXIS 7689, at *8 (Tex. App.—Austin Sept. 16, 2010, no pet.) (mem. op.) (citing

Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643, 653 (Tex. App.—Dallas 2002, pet. denied)).

A trial court abuses its discretion when it acts unreasonably or “without reference to any guiding

rules and principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

“The trial court has broad discretion in submitting jury questions, subject only to the limitation that

controlling issues of fact must be submitted to the jury.” Ayala, 2010 Tex. App. LEXIS 7689, at *8

(citation omitted); see also Triplex Comms. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995) (“If an issue

is properly pleaded and is supported by some evidence, a litigant is entitled to have controlling

questions submitted to the jury.” (citations omitted)).

                In the context of a parental termination case, this Court has squarely addressed the

issue of whether a trial court abuses its discretion when it refuses to submit jury questions concerning

conservatorship. See Ayala, 2010 Tex. App. LEXIS 7689, at *10–11. In that case, we rejected the

appellant parent’s contention that sections of the family code, including section 105.002, gave her

the right to have the jury consider naming her conservator as an alternative to termination.

We explained:




       3
          At trial, the Department was not seeking to be named conservator in the absence
of termination.

                                                   3
       The controlling question in this case was whether [the mother]’s parental rights
       should be terminated. See Texas Dep’t of Human Servs. v. E.B., 802 S.W.2d 647,
       649 (Tex. 1990); In the Interest of J.T.G., 121 S.W.3d 117, 129 (Tex. App.—Fort
       Worth 2003, no pet.) (“In parental termination cases, the controlling question is
       whether the relationship between the parent and each child should be terminated.”).
       The trial court “asked the controlling question,” so it did not abuse its discretion by
       refusing to submit additional questions. E.B., 802 S.W.2d at 649.


Id. at *11; see also In the Interest of J.T.G., 121 S.W.3d at 129 (“It is well settled law that a jury

charge that tracks the statutory language and then asks the controlling question does not amount to

an abuse of discretion.” (citing E.B., 802 S.W.2d at 649)). Similarly, in this case, the trial court

“asked the controlling question[s]” concerning termination of appellant’s parental rights. Thus, it

did not abuse its discretion by refusing to submit additional questions concerning conservatorship.

See Ayala, 2010 Tex. App. LEXIS 7689, at *10–11. We overrule appellant’s first issue.4

                  Having overruled appellant’s dispositive issue, we affirm the trial court’s final decree

of termination.




       4
         Because we conclude that the trial court did not abuse its discretion when it did not include
questions of conservatorship in the jury charge, we do not reach appellant’s second issue concerning
harm based upon the omission of questions of conservatorship. See Tex. R. App. P. 44.1(a), 47.1
(appellate courts “must hand down a written opinion that is as brief as practicable but that addresses
every issue raised and necessary to final disposition of the appeal”). We also do not reach the
Department’s arguments concerning preservation of appellant’s issues. See Tex. R. App. P. 47.1;
Tex. R. Civ. P. 274 (addressing preservation of objections and requests to jury charge).

                                                     4
                                            __________________________________________
                                            Melissa Goodwin, Justice


Before Justices Puryear, Rose and Goodwin

Affirmed

Filed: August 14, 2013




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