Appeal from the 313th District Court Harris County, Texas
Trial Court Cause No. 2017-04069J
consists of Justices Christopher, Bourliot, and Zimmerer.
accelerated appeal arises from a final decree in a suit in
which termination of the parent-child relationship was at
issue. Tex. Fam. Code Ann. § 109.002(a-1). The child is
Paige. The appellants are her mother (K.M.),
father (C.T.), and paternal grandparents (intervenors C.T.
and F.T.). The trial court terminated Mother's and
Father's parental rights and appointed the Texas
Department of Family and Protective Services (the Department)
to be Paige's managing conservator.
Grandparents raise three issues: (1) the trial court lost
jurisdiction and should have dismissed the case; (2) the
trial court erred in denying them a jury trial; and (3) the
trial court erred in appointing the Department, rather than
them, as Paige's conservator. Mother and Father both
challenge the evidentiary sufficiency to support termination;
neither challenges the trial court's decision on
begin with the procedural issues raised by Grandparents.
First, they did not preserve error regarding dismissal of the
case. Any error in failing to dismiss this case would have
resulted in only a voidable judgment, not a void judgment, so
their failure to preserve error is dispositive of that issue.
Second, the trial court did not abuse its discretion in
denying Grandparents a jury trial because they did not timely
demand a jury trial.
we turn to the substantive issues. Sufficient evidence
supports the trial court's findings that (1) Mother and
Father endangered Paige, and (2) termination of their
parental rights is in Paige's best interest. Grandparents
have not shown the trial court abused its discretion in
appointing the Department as Paige's managing
we affirm the trial court's decree.
their first issue, Grandparents contend the trial court
should have dismissed the suit under section 263.401 of the
Family Code, the statute that sets the deadline to begin
trial in a termination case.
version of section 263.401 that governs this
states in relevant part:
(a) Unless the court has commenced the trial on the merits or
granted an extension under Subsection (b) or (b-1), on the
first Monday after the first anniversary of the date the
court rendered a temporary order appointing the department as
temporary managing conservator, the court shall dismiss the
suit affecting the parent-child relationship filed by the
department that requests termination of the parent-child
relationship or requests that the department be named
conservator of the child.
Act of May 29, 2015, 84th Leg., R.S., ch. 944, § 38,
sec. 263.401, 2015 Tex. Sess. Law Serv. 3268, 3283 (amended
2017; current version at Tex. Fam. Code Ann. §
263.401(a)). In plain English: with certain exceptions, the
deadline to begin trial of a termination case is the Monday
following the first anniversary of the day the trial court
appointed the Department as the child's temporary
managing conservator. A party who seeks to enforce the
one-year deadline must file a motion to dismiss before a
trial on the merits commences. Act of May 27, 2007, 80th
Leg., R.S., ch. 866, § 3, sec. 263.402(b), 2007 Tex.
Sess. Law Serv. 1837, 1838 (amended 2017; current version at
Tex. Fam. Code Ann. § 263.402).
trial court appointed the Department as Paige's temporary
managing conservator on August 22, 2017. Trial began on
July 26, 2018, less than one year later. Accordingly,
dismissal was not required because the trial began timely
under section 263.401(a).
appeal, Grandparents contend trial did not really begin until
October 22, 2018. They assert the proceeding on July 26, 2018
was a sham trial, conducted solely to circumvent the 12-month
deadline. They filed a motion to dismiss on October 16, 2018.
If trial did not begin until October 22, 2018, they say, then
their motion to dismiss was timely under section
263.401(b)(2), and the judgment is void.
first consider whether the trial court's alleged error in
not dismissing the case rendered the judgment void or merely
voidable. "[A] judgment is void only when it is shown
that the court had no jurisdiction of the parties or
property, no jurisdiction of the subject matter, no
jurisdiction to enter the particular judgment, or no capacity
to act as a court." Browning v. Placke, 698
S.W.2d 362, 363 (Tex. 1985). The dismissal dates in the
version of section 263.401 applicable to this case are not
jurisdictional. In re Dep't of Family &
Protective Servs., 273 S.W.3d 637, 641-42 (Tex. 2009)
(orig. proceeding). A judgment is not void merely because it
was made after the dismissal dates in that version of section
judgment is merely voidable, challenges to that judgment are
subject to the rules for preservation of error. See
Roccaforte v. Jefferson Cty., 341 S.W.3d 919, 923 (Tex.
2011). To preserve a complaint for appellate review, the
record must show (1) the complaint was made to the trial
court by a timely and sufficiently specific request,
objection, or motion, and (2) the trial court either ruled on
the request, objection, or motion, or the trial court refused
to rule and the complaining party objected to the refusal.
Tex.R.App.P. 33.1(a). We assume for the sake of argument that
Grandparents' motion was timely. The record does not
reflect that the trial court ruled on the motion, nor does it
reflect that Grandparents sought a ruling but the trial court
refused to rule. Grandparents did not mention the motion to
dismiss when trial resumed on October 22. Based on these
facts, we conclude Grandparents have not preserved error
regarding dismissal. We overrule their first issue.
next contend the trial court erred in denying their request
for a jury trial. We review the trial court's denial of a
jury demand for an abuse of discretion. In re
A.L.M.-F., No. 17-0603, __S.W.3d__, 2019 WL 1966623, at
*8 (Tex. May 3, 2019). A trial court abuses its discretion
when its decision is arbitrary, unreasonable, and without
reference to guiding principles. Id. We examine the
entire record in our review. Mercedes-Benz Credit Corp.
v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).
right to a jury trial is guaranteed by the Texas
Constitution. Tex. Const. art. I, § 15 ("The right
of trial by jury shall remain inviolate."). The
existence of a substantive right is distinct from the
procedures constitutionally required to protect that right.
A.L.M.-F., 2019 WL 1966623, at *8. Demand for a jury
trial in a civil case is governed by Texas Rule of Civil
Procedure 216. The rule requires both a written request and,
unless otherwise provided by law, payment of a fee.
See Tex. R. Civ. P. 216. The written request must be
filed a reasonable time before the date set for trial on the
non-jury docket, but not less than 30 days in advance.
filed a written jury demand and paid the jury fee on July 24,
2018. Trial was set to begin two days later, on July 26.
Grandparents did not comply with rule 216(a) because they did
not make their request at least 30 days in advance of the
trial setting. Accordingly, the trial court did not abuse its
discretion in denying their request for a jury trial.
to their claim for dismissal, in which they argued the July
26 trial was a sham, Grandparents contend the trial
setting for July 26 was also a sham. For
that reason, they say, their jury request was timely under
rule 216 because it was made more than 30 days in advance of
the real trial setting of October 22. Accepting their
contention as true only for the sake of argument, we
nevertheless conclude Grandparents did not preserve error. To
preserve a complaint about the denial of a jury trial, the
complaining party must object when the trial court proceeds
with a bench trial. In re K.M.H., 181 S.W.3d 1, 16
(Tex. App.-Houston [14th Dist.] 2005, no pet.) (supp. op. on
reh'g). Grandparents did not object to the trial
court's conducting a bench trial. Therefore, they did not
preserve any error in the denial of a jury trial. We overrule
their second issue.
turn Mother's and Father's challenges to termination
and Grandparents' challenge to conservatorship.
following witnesses testified at trial: Department
investigative caseworker Shaun Santiago; two deputy sheriffs
from Montgomery County, Troy Moseley and Cody Lowry;
Paige's therapist, Diane Vines; the psychologist who
evaluated Paige, Andrew Brams, Ph.D.; Father's therapist,
Kelly Landry; Mother; Father; Grandmother; Grandfather;
Department conservatorship caseworker Victoria Palmer;
Paige's guardian ad litem, Susan Arredondo; Father's
common-law wife, Dana; child welfare and placement expert
Lisa McCartney; and Paige's foster mother.
exhibits admitted into evidence without objection include:
Santiago's pretrial removal affidavit; photos of Paige;
Paige's medical records; criminal records concerning
Mother's boyfriend, Luke, who was accused of causing the
injuries to Paige that began this case; Paige's
educational records; documentation regarding Mother's and
Father's attendance and completion of parenting classes;
records from one of Father's therapists; police records
regarding Father; drug and alcohol test results for
Grandparents; Grandmother's medical records; the
Department's report of Grandparents' home study;
photos of Grandparents' home; and a status report by the
Department. On the Department's request and without
objection from the other parties, the trial court took
judicial notice of all the orders in this case. Admitted over
Mother's and Father's objection were family service
plans the Department created for them; a report of Brams'
psychological evaluation of Paige; photos of Father; and
printouts of text messages between Father and Dana.
Events leading to removal and this lawsuit
Department received a referral on a Sunday in July 2017
alleging physical abuse and medical neglect of Paige, then
six years old. Paige presented at the hospital with severe
bruises on her face, arms, and knees, allegedly due to
falling while standing in the bathtub.
and J. Rouse, an investigator for the Harris County
Sheriff's Office, each observed Paige at the hospital.
Santiago's description is taken from his affidavit and
his testimony. Rouse's description is taken from the
criminal complaint against Luke regarding Paige's
saw Paige was "covered with bruises." Specifically,
she had large bruises on her forehead and the side of her
face, both arms, and both legs. Her face and one of her knees
appeared swollen. She had black eyes. And she had
"clumps of hair" missing, leaving bald patches on
her head. Santiago testified, "[T]here is no way, in my
experience, that a child could receive that many bruises from
one or two falls in the bathtub."
observed Paige to have "swollen red marks to her
forehead, bruising under each eyes [sic], and bruising to her
elbows." Rouse reviewed Paige's medical records.
They indicated she had "6 contusions to her face to
include 'swelling to the forehead.'" According
to the records, Paige told a child life specialist that
"[she] was hurt on purpose, the wall did it." The
records state Paige's injuries were not consistent with
Mother's account a. Mother's
statements at the hospital
and Rouse both interviewed Mother at the hospital. The facts
in this section are taken from Santiago's affidavit and
testimony and the criminal complaint against Luke.
to Santiago. Santiago testified that as soon as he
entered Paige's hospital room, "[Mother] immediately
said, It wasn't me. She fell in the shower. I was at
work." According to Santiago's affidavit, Mother
offered him the following version of events leading up to
had been with Grandparents and was set to be returned to
Mother at her apartment on Saturday. Mother had to go to
work, so she instructed Grandparents to drop Paige off with
Luke. She told Santiago that Luke had begun watching Paige on
his own just the previous week. When Mother called home,
Paige was watching television and seemed happy. Luke called
Mother around 7:00 p.m. to report Paige had urinated on
herself. Mother told Santiago that Paige was fully
potty-trained and had never urinated on herself.
short while later," Luke called Mother's work again
and left word with a co-worker of an emergency at home.
Mother was too busy with customers to take the call or call
him back. She left work around 10:00 p.m., and she did not
talk to Luke until she got home.
home, Luke told Mother what had happened. Luke said he
directed Paige to shower to wash off the urine. He said Paige
got undressed behind the shower curtain, then handed him her
clothes. He gave Paige a sponge with soap. At that point,
Luke told Mother, Paige became upset and screamed for Mother,
and during her distress she fell, hitting her head twice on
the way down. Luke said he "bear hugged" Paige to
calm her down, then put her to bed. Santiago asked if Mother
was comfortable with Luke bear hugging her naked daughter,
and Mother emphatically said no.
hearing what happened, Mother went to Paige's bedroom.
Mother told Santiago she did not see bruises on Paige's
head. Still, Mother wanted to take Paige to the hospital, she
told Santiago, but she did not because Paige was
"difficult to wake up." She said it did not occur
to her to call 911. Mother said she stayed up all night and
checked on Paige frequently. She also told Santiago that
Paige had been diagnosed as "mentally disturbed."
Mother said Paige hits herself against the wall, causing
bruises, and pulls out her hair.
took Paige to a regional hospital at noon the following day,
Sunday. At some point that afternoon, Paige was transferred
to a hospital in the Houston Medical Center.
to Rouse. According to Rouse, Mother said she had
"left for work that afternoon leaving [Paige] in the
care of [Luke] . . ., who is her fiancé." When
she returned home that night, Mother told Rouse, she saw
Paige had the injuries Rouse observed. Luke reportedly told
Mother he was helping Paige take a shower when she
"became angry and began hitting her head on the
wall," so he "had to bear hug [her] to prevent her
from hitting her head further." Mother said Luke told
her Paige "pulled away and landed on her elbows and
knees." Mother took Paige to the hospital after Paige
complained of a headache the following day.
Mother's trial testimony
trial, Mother changed her account. She said Father was
supposed to have custody of Paige for all of July, though
Grandparents frequently took care of her for him. Even though
Grandparents should have returned Paige to Father after their
visit, Father allegedly had told Mother the previous evening
that he had his "own life," and Paige was
"[Mother's] problem." Mother testified she did
not know Grandparents would bring Paige to her apartment, and
she found out only when she called home and Luke said Paige
was watching television. Grandmother corroborated that
testimony when she confirmed she and Grandfather brought
Paige to Mother's apartment at Father's direction.
testified Luke texted her, not called her, about Paige's
urination. She said she responded by instructing Luke to tell
Paige to "change herself" and Mother would
"take care" of her in the morning, by which she
meant she would bathe her. She explained she does not let
Paige in the bathtub by herself.
point thereafter, Mother testified, Luke called the store
where she worked and said he needed to speak with Mother. She
testified he did not say there was an emergency. Mother was
not alarmed, she explained, because Luke "always called
[her] job." Just as she had told Santiago at the
hospital, she testified she was too busy to talk to Luke at
the time. But contrary to her statement to Santiago that she
did not communicate with Luke until she got home, at trial
she testified she texted Luke later, asking him if Paige was
okay. He allegedly responded Paige was fine and he had given
her a warm rag and told her to wash herself.
was already asleep when Mother got home close to midnight. As
Mother walked in the door, Luke told her Paige had slipped
but did not say she had slipped in the bathtub. Rather, he
"just said she fell and-he said it was outside she
hurted [sic] her knees and that was it." Mother
testified Paige falls down a lot, is "klutzy," and
has balance problems. As a result, she said, Paige normally
has bruises on her knees. Counsel for the Department asked
Mother if Paige's forehead was bruised. Mother responded:
A. Honestly, I didn't even check, like, they didn't
tell me she was injured-he didn't tell me she was
injured. He just told me she slipped and that was it.
. . .
Q. But having somebody tell you your 6-year-old child, who
never has accidents, has [urinated on] herself, didn't
raise enough concern for you to go and check on her; is that
A. I guess not.
not clear whether Mother looked in on Paige but did not
inspect for bruises or did not see Paige at all. Regardless,
Mother testified she did not try to wake Paige. On
cross-examination, Mother was asked about the discrepancy
between her testimony and Santiago's testimony that
Mother told him she tried but was unable to wake Paige. She
insisted Santiago was lying. If she had tried but could not
wake Paige up, Mother testified, she would have taken her to
next morning, Paige, in a position in which Mother did not
have a full view of Paige's head, told Mother her head
hurt. Mother testified:
I said, Well, let me get you some Tylenol. She moved her hand
and I said-I'm not going to lie-I said a cuss word. I
said, What the- happened? And she says, Oh, I fell. Remember?
I said, No. I said, I was just told you hurt your knee that
gave Paige Tylenol, then Luke drove them to the hospital.
testified she does not believe falling in a bathtub, even
falling twice, could have caused Paige's injuries. If she
could go back in time, she said, she would have woken Paige.
interviewed Paige while Mother was in the room. He described
Paige as "still very scared." According to
Santiago's affidavit, Paige first told him she fell in
the bathtub. She said she was in the bathtub because she
needed to take a shower because she had urinated on herself.
Paige said Luke was making her stand in the corner because he
was angry with her. She needed to use the bathroom and ended
up urinating on herself. As she stood in the bathtub, Luke
handed her a sponge, and she fell. Paige told Santiago she
did not know how she fell and could not remember. At trial,
Santiago called attention to how Paige changed her story:
"She said that she had fallen in the shower. And then
she changed to say that she had peed herself. That [Luke] had
yelled at her. . . . And that he had placed her in the shower
and her mom wasn't there so she fell in the shower."
told Santiago he and Mother began dating in September 2016
and moved in together in March 2017. Contrary to Mother's
assertion that Luke had been watching Paige for only a week,
Luke told Santiago he had been watching Paige on his own for
two or three months. He said she had no bruises or marks when
Grandparents dropped her off. Luke contended the only methods
of punishment he practices on Paige are making her stand in
the corner or taking away her phone.
offered the following account. He asked Paige to pick up her
toys, but Paige talked back to him, then had a temper tantrum
in which she banged her head against the wall. He took her
eyeglasses so they would not break and put her in another
part of the apartment. She kept banging her head against the
wall, and then she urinated on herself. He believed she was
having a seizure. But he could not explain his belief,
admitting Paige had never had a seizure before. He also
echoed Mother's statement that Paige had not urinated on
herself previously. Luke told Santiago that Paige fell on the
floor, so he picked her up, carried her to the bathroom, and
put her in the shower. He said Paige disrobed behind the
shower curtain and gave him her clothes. He then turned on
the water and gave her a sponge with soap. The affidavit does
not reflect what, if anything, Luke said happened after he
handed Paige the sponge.
told Santiago he sent Paige to bed and checked on her every
30 minutes or so because he knew she was injured. Still, he
admitted, it never occurred to him to take her to the
hospital. Luke said he did not consume alcohol before the
incident in question but drank four or five beers around 9:30
Mother's departure from the hospital
confronted Mother about the discrepancies between her and
Luke's versions of events. Mother became extremely
agitated, saying the Department was "trying to pin
this" on her. She also said Luke was moving out, and she
insisted she "needed to be there." Mother left the
hospital before Paige was discharged. Paige could not be
placed with Father due to his criminal history. She was
placed in a parental child safety placement (PCSP) with
Grandparents. Santiago testified he had no problem with that
placement at that time.
Paige's interview at the Child Assessment Center
was interviewed five days later at the Child Assessment
Center. Santiago and Rouse both watched the interview. During
that interview, she disclosed that Luke banged her head
against the wall, which made her urinate on herself. She said
he threw her into the bathtub, then yelled at her to get out,
then dragged her out of the bathtub and pushed her to the
floor. She told the interviewer her body felt sad when he
pushed her to the floor. Rouse believed Paige to be
"reliable and credible."
called Mother that day and told her the Department would be
seeking custody of Paige. Mother became very irate and denied
abusing Paige. Santiago assured her the Department did not
believe she physically abused Paige but did believe she
failed to timely seek medical attention for her daughter.
Mother denied Luke abused Paige, saying Luke is a good man
and Paige is easily influenced to say whatever people want
her to say. When Santiago reiterated that the evidence
implicated Luke, Mother said, "Go f*** yourself and I
will get a lawyer and see you in court."
trial, Mother denied her denial. She said she did not tell
Santiago that Luke could not have hurt Paige. She said she
believes Luke caused Paige's injuries. She also
testified, "The night . . . Mr. Santiago told me I could
not have my daughter[, ] I called [Luke] and told him to get
his stuff out and get his kid out and get out of my
Removal and this lawsuit
to the day after Paige was hospitalized, the Department
removed Paige and filed this lawsuit for protection of a
child, conservatorship, and termination. The record does not
reflect what precipitated the filing at that time.
trial court conducted a full adversary hearing two weeks
later, after which it named the Department as Paige's
temporary managing conservator. Paige remained with
Grandparents. About six weeks later, the trial court signed
an order approving the family service plans the Department
created for Mother and Father and requiring the parents to
comply with their respective plans.
Before and shortly after removal
was significantly developmentally delayed before she came
into care. Child placement specialist Lisa McCartney
testified Paige could not read and did not know numbers.
had lice at Grandparents' home. They worked hard to
eradicate the lice, but the outbreak was ongoing when she
arrived at her foster home. The foster mother described Paige
as frail and underweight at that time. Paige also arrived
with "4-inch blades" in her suitcase. The record
does not reflect where she got the knives. Emotionally, the
foster mother testified, Paige was very nervous.
to Paige's foster mother, "Everybody noticed her
delays right away, between the doctor and the school."
It took Paige "a while to kind of process information
and then reply to somebody." Speech therapy,
occupational therapy, and special education services were