Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 15th Judicial District Court Grayson County,
Texas Trial Court Cause No. FA-15-1179
Justices Francis, Stoddart, and Schenck.
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.
And Procedural Background
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.
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,
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.
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.
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 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.
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
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 ...