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In re M.B.

Court of Appeals of Texas, Fifth District, Dallas

September 19, 2019

IN RE: M.B. AND V. B., RELATORS

          Original Proceeding from the 196th District Court Hunt County, Texas Trial Court Cause Nos. 86428 and 87706

          Before Justices Myers, Molberg, and Nowell

          MEMORANDUM OPINION

          ERIN A. NOWELL JUSTICE

         In this original proceeding, Relators M.B. and V.B. (Foster Parents) seek relief from the trial court's order consolidating their suit affecting the parent-child relationship (SAPCR) with a pending SAPCR filed by the Texas Department of Family and Protective Services (Department) and denying the Foster Parents' request for a jury trial in the consolidated proceeding. We conclude the Foster Parents are entitled to partial relief. We conditionally grant the writ in part as to the denial of the request for a jury trial and deny it in all other respects.

         Background

         Relators are the foster parents of Cassidy,[1] age three. Cassidy's older sister, Amy, is age ten. The Department removed the children from Mother in 2017 in another proceeding. Cassidy was placed with the Fosters Parents for just over a year in that proceeding. The children were reunited with Mother on February 22, 2018. The Department later removed the children on August 8, 2018 and placed Cassidy with the Foster Parents and Amy with another family. At the same time, the Department filed a petition seeking termination of the parental rights of Mother and the children's fathers and appointment as the managing conservator. We refer to this suit, cause number 86428, as the CPS Case.

         The Foster Parents were initially supportive of the plan for Cassidy to be reunited with her family. However, the Foster Parents attended the permanency hearing on June 25, 2019 where the guardian ad litem and the attorney ad litem for the children expressed conflicting concerns regarding the placement of Cassidy. The next day, the Foster Parents filed a petition in intervention in the CPS Case. They sought termination of the parental rights of Mother and Father to Cassidy and appointment as Cassidy's sole managing conservators. The Foster Parents filed an amended petition in intervention seeking the same relief on July 11, 2019. The Department and Mother filed a motion to strike the intervention. According to the Foster Parents' petition in this Court, a hearing was held on the motion to strike on July 11, 2019, but the trial court did not rule at that time. The Department and Mother later withdrew the motion to strike.

         On July 15, 2019, the Foster Parents filed a new SAPCR, cause number 87706, in which they sought termination of Mother's and Father's parental rights, appointment as Cassidy's sole managing conservators, and adoption of Cassidy. On July 25, 2019, the Foster Parents filed a written request for a jury trial and paid the jury fee in the new SAPCR. On July 29 and 30, 2019, the attorney ad litem, the Department, and Mother filed motions to consolidate the new SAPCR with the pending CPS Case because the cases share common questions of law and fact regarding the same child, Cassidy, and the rights of her parents.

         The trial court conducted a hearing on the motions to consolidate on August 2, 2019, the same day the CPS Case was set for final hearing. The Foster Parents opposed consolidation of the cases, but argued that if the trial court consolidated the cases, it should grant their request for a jury. The trial court granted the motion to consolidate, but noting that the Foster Parents intervened after the date for requesting a jury trial in the CPS Case and expressing concern about allowing a party who intervenes after a scheduling deadline to file a separate suit seeking the same relief in order to obtain new deadlines, denied the Foster Parents' request for a jury trial.

         Due to a monitored return for Amy, the trial court set a new dismissal date for December 24, 2019, and reset the trial date to September 30, 2019. This original proceeding is directed to the trial court's oral ruling granting the motions to consolidate and denying the Foster Parents' request for a jury trial.

         Mandamus Standard

         Mandamus is an extraordinary remedy that is available only when the trial court has clearly abused its discretion and there is no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36, 137 (Tex. 2004) (orig. proceeding). A clear abuse of discretion occurs when a trial court "reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is or applying the law to the facts. Id. Therefore, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Id. at 840.

         Denial of trial by jury is reviewable by mandamus. In re Prudential Ins. Co., 148 S.W.3d at 139. Similarly, mandamus relief may be available to challenge a consolidation order when the parties are in danger of permanently losing substantial rights. See In re Gulf Bus. Dev. Corp., 247 S.W.3d 787, 793 (Tex.App.-Dallas 2008, orig. proceeding).

         Before addressing the merits, we note that we do not have a written order signed by the trial court containing the challenged rulings. However, mandamus relief may be based on oral order that is "clear, specific, and enforceable" and "adequately shown by the record." In re Groves, No. 01-15-00537-CV, 2016 WL 921645, at *2–3 & n.3 (Tex.App.-Houston [1st Dist.] 2001, orig. proceeding) (mem. op.); see also Tex. R. App. P. 52.3(k)(1)(A) ("The appendix must contain . . . a certified or sworn copy of any order complained of, or any other document showing the matter complained of."); In re Bledsoe, 41 S.W.3d 807, 811 (Tex.App.-Fort Worth 2001, orig. proceeding). Here, we have been provided with the record of the hearing containing the trial court's ruling on the motion to consolidate and relators' request for a jury trial. Cf. In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 316 ...


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