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In re K.A.H.

Court of Appeals of Texas, Fifth District, Dallas

April 27, 2017

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

          Before Justices Francis, Stoddart, and Schenck.

          MEMORANDUM OPINION

          CRAIG STODDART JUSTICE.

         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 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 ...

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