









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-02-00175-CV
______________________________




IN THE INTEREST OF
J. C., G. C., I. C., and T. C., CHILDREN





On Appeal from the County Court at Law
Rusk County, Texas
Trial Court No. 2002-03-197CCL





Before Morriss, C.J., Ross and Cornelius,* JJ.
Opinion by Justice Ross
*William J. Cornelius, C.J., Retired, Sitting by Assignment

O P I N I O N

	Stephen Clark, the father of J. C., G. C., I. C., and T. C., children, appeals from a
trial court order terminating his parental rights to the children.  Clark raises three issues on
appeal:  (1) there is not a complete record, (2) the evidence is factually insufficient to
support the order of termination, and (3) the trial court erred in denying Clark a jury trial. 
Because we sustain Clark's third issue, we find it unnecessary to address the other two.
	Our rules governing the trial of civil cases provide that a party is entitled to a jury trial
if a written request is made within a reasonable time before the first trial setting on the
nonjury docket, but in no event less than thirty days before such setting.  Tex. R. Civ. P.
216.  These rules further provide that the trial court is required to give the parties at least
forty-five days' notice of the first trial setting.  Tex. R. Civ. P. 245.
	The original petition for divorce and termination of parental rights was filed in this
case by the mother March 27, 2002.  Clark was served with personal citation, while in
prison, April 19, 2002.  His original answer, request for appointment of attorney ad litem,
and motion for issuance of a bench warrant was filed pro se May 22, 2002.  Trial was
apparently set on the nonjury docket for August 16, 2002.  The record does not show
whether Clark received proper notice under Tex. R. Civ. P. 245.  The trial court appointed
counsel for Clark, but counsel did not receive notice of his appointment until around
August 5, 2002.  Clark was transferred from prison in Jones County to the Rusk County Jail
August 10, 2002, but his court-appointed counsel was not able to consult with him until
August 14, 2002, when Clark advised him of his desire for a jury trial.  Counsel filed an
answer, a request for jury trial, and a motion for continuance.  The court granted the
continuance and reset the trial for August 22, 2002.  Clark's request for a jury trial was
denied.  The court's judgment recites that the request for a jury was untimely.  
	Appellee contends Clark "had sufficient time to request a jury trial between the date
the case was filed and the date final hearing was set, . . . ."  Clark's request for
appointment of an attorney to represent him, however, was not granted until approximately
two weeks before the first setting of the final hearing.  
	Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon 2002) requires a trial court to appoint
an attorney ad litem to represent the interest of an indigent parent who responds in
opposition to a suit in which termination of the parent-child relationship is requested.  Such
appointment is mandatory.  In re T.V., 8 S.W.3d 448, 449 (Tex. App.-Waco 1999, no pet.). 
This provision is in obvious recognition of the inability of most-if not all-indigent parents
to defend against such a serious matter as the termination of parental rights without the
assistance of counsel.  To obtain such assistance, all the statute requires of an indigent
parent is to respond in opposition to the suit.  
	After being served with notice of suit to terminate his parental rights, Clark promptly
filed a single document in which he responded in opposition to the suit, requested the
appointment of an attorney ad litem, and requested that he be bench warranted from
prison to attend the termination hearing.  The record does not reflect that he purported to
represent himself in any other way in these proceedings.  He expressly testified at one of
the hearings as to his need for an attorney.  It is reasonable to assume that Clark, as a
nonlawyer, was not aware of Rule 216 and that most people in Clark's situation would have
thought that such a fundamental right as trial by jury would be automatic.       
 Obviously, Clark's counsel never had an opportunity to comply with Rule 216.  He
filed a request for jury trial on behalf of his client at his first opportunity, but this was well
within thirty days before the trial setting.  In Bell Helicopter Textron, Inc. v. Abbott, 863
S.W.2d 139 (Tex. App.-Texarkana 1993, pet. denied), we held that, when compliance with
Rule 216 is made impossible by failure to give the notice required by Rule 245, a demand
for a jury trial made within thirty days of the trial setting will be deemed timely.  Id. at 141. 
Here, compliance with Rule 216 was made impossible for Clark's court-appointed attorney
ad litem by the lateness of his appointment.  Just as the thirty-day period required by Rule
216 had to be expanded in Bell Helicopter because of the failure to give the forty-five days'
notice required by Rule 245, so must it be expanded here because of the late appointment
of Clark's counsel.  See In re V.R.W., 41 S.W.3d 183, 195 (Tex. App.-Houston [14th Dist.]
2001, no pet.).  We hold that the request for a jury trial made by Clark's counsel was timely. 
To hold otherwise has the potential of opening the door to repeated denial of a jury trial to
countless other indigent parents who appear in the various courts throughout this State in
opposition to the termination of their parental rights.
	Appellee also contends that any error in the denial of Clark's right to a jury trial was
harmless because no material issues of fact existed and an instructed verdict would have
been justified.  None of the cases cited by appellee, however, were termination cases
involving the best interests of children.  In addition to finding by clear and convincing
evidence one of the acts enumerated in Section 161.001 of the Family Code, a court order
to terminate parental rights must also find that termination is in the best interest of the
child.  Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon 2002).  Clark testified extensively at
the final hearing and repeatedly denied that termination of his parental rights would be in
the best interests of his children.  This testimony was sufficient to defeat any motion for an
instructed verdict.
	Rights that inure in the parent-child relationship are of constitutional dimensions. 
Stanley v. Illinois, 405 U.S. 645 (1972); In re G.M., 596 S.W.2d 846, 846 (Tex. 1980); In
re N.K., 54 S.W.3d 499, 502-03 (Tex. App.-Texarkana 2001), vacated & remanded without
reference to the merits, 89 S.W.3d 29 (Tex. 2002).  Because the involuntary termination
of parental rights is complete, final, and irrevocable, trial court proceedings ordering
termination must be strictly scrutinized.  N.K., 54 S.W.3d at 503. Likewise, as we stated
in Bell Helicopter, the right to a jury trial as guaranteed by our Constitution is one of our
most precious rights and the denial of that right is a very serious matter.  "Restrictions
placed on the right to a jury trial will be subjected to the utmost scrutiny."  Bell Helicopter
Textron, Inc., 863 S.W.2d at 141.  Applying such scrutiny to the facts of this case, Clark
should not have been deprived of those constitutional rights "that inure in the parent-child
relationship" without the benefit of his constitutional right to a jury trial. 
	The judgment is reversed and the case remanded to the trial court for a jury trial.


							Donald R. Ross
							Justice

Date Submitted:	April 30, 2003
Date Decided:	June 13, 2003

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                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-09-00170-CR
                                                ______________________________
 
 
                                      JOSE MANUEL SOTO,
Appellant
 
                                                                V.
 
                                     THE STATE OF TEXAS, Appellee
 
 
                                                                                                  

 
 
                                       On Appeal from the 124th
Judicial District Court
                                                             Gregg County, Texas
                                                          Trial Court
No. 37447-B
 
                                                        
                                          
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                            Memorandum Opinion by Justice Moseley




                                                     MEMORANDUM 
OPINION
 
            Jose
Manuel Soto, appellant, has filed with this Court a motion to dismiss his
appeal.  The motion is signed by Soto and
by his counsel in compliance with Rule 42.2(a) of the Texas Rules of Appellate
Procedure.  See Tex. R. App. P.
42.2(a).  As authorized by Rule 42.2, we
grant the motion.  See Tex. R. App. P.
42.2.
            Accordingly,
we dismiss the appeal.
 
 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
Date Submitted:          February
4, 2010
Date Decided:             February
5, 2010
 
Do Not Publish

