### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03 - 22 - 00327 - CV

J. G. , Appellant
v. Texas Department of Family and Protective Services , Appellee

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO. D - 1 - FM - 20 - 005673 , THE HONORABLE CATHERINE MAUZ Y , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
J.G. (Father) appeals from the trial court ’ s decree terminating his parental rights to h is two children , Pedro and Ilana
. 1 See Tex. Fam. Code. § 161.001(b)
. Father challenges the trial court ’ s d enial of his motion for co nti nuance and its in

- cham bers , non - transcribed interview of Pedro. For the following reasons, we affirm the trial court ’ s termination decree.

EVIDENTIARY AND PROCEDURAL SUM MARY On October 14, 2020, the Texas Department of Fam i ly and Protective S ervices filed its “ Or iginal P etition in a S uit A ffecting the P arent
- C hild R elationship

— Termi nation Petition And / Or Managing Conservatorship. ” I n the affidavit supporting its request for an
ex parte order appointing it as the children ’ s temporary ma naging conservator (TMC) , the Department alleged that the children had been living wi th their maternal great

- aunt , who was no

1 Fo r the c hild ren ’ s priva c y, w e will ref er to them by aliases and to their family members by their r elati on s hips to them or by aliases
. See Tex. R
. App. P. 9. 8
.2

longer able to care for the m ; t hat no parent was able to pick up the children or agree to a placement ; that Father was suspected of using illegal drugs , inclu ding methamphetamine , and

n eglectfully supervis ing the chil dr en , inclu ding leaving th em un attended ; and t hat the children ’ s residence was in poor condition without working electricity and was known for drug activi ty
. 2 When the suit was filed, the children were fourteen and nine. The trial court issued a fourteen

day ex parte and show

- cause order that same day , appointing the Department as the children ’ s TMC , and later exten ded the ex parte order by the parties ’ a g reeme nt u ntil Novem ber 1 8 , when the first contested adversary hearing occurred . A t the hearing, the Department ab a ndoned its request t o be appointed TMC , the TMC order expired o n its own terms , and the trial court signed an order under Sectio n 264.203 of the F am ily Code , containing the requisite findin gs and settings for a case brought pursuant to Chapter 264 of the Family Code (a court

- ordere d services (COS) case) and ordering Father to complete speci fied services and requirements such as drug testing , t h erapy , and a psychological examination. See id. §§ 2 64.201

– .207. The children were placed with a paternal au nt , and F a ther was permitted uns upervised visitation. The trial co urt signed an

“ Order Appointing Parent Attor ney ” for Father on Nove mber 2 3, 20 2 0 , and the same date signed orders appointing an attorney ad l item and guardian ad l item for the children.

On January 4, 20 21, the trial court conducted a hearing , and on January 19 signed
an o rder requiring Father to continue to part icipate in his co urt
- ordered services and assigning all managing

- con servator rights and duties to him. On March 12, after a review hearing, the trial court ordered F a ther ’ s continued par ticipation in services provided by th e Department. However, o n March 24, 20 21, th e De par tment filed an affidavit in support of extraordinary rel ief asking the cou rt to remove the children from Father ’ s custod y and a gain a ppoint the Depa rtment

2 The c hildren ’ s mother passed away in 2017.3

as TMC , alle ging that Father had recently tested positive for metha mphetamine on a hair

strand tes t a nd had not complied with prior drug

- test ing re quirements
. On April 12, the co urt conducted an a dversary hearing at which it appointed the Department as TMC of Ped ro and Ilana . It issued a scheduling order, setting various hearings and ident i fying the dis missal date under Family Co de Section 263.401(a) as October 1 8, 202 1
. See i d. § 263.401 ( provid ing for automatic dismissal of termination suit if trial c ourt has not commenced trial on merits or granted 180

- day extension by first Monday after first ann ive rsary of “ the date the court rendered a temporary order appoi nting the [D]epartment as temporary managing conservator ” ).

The court conducted a status hearing on May 25, 2021, and the status
- hearing
o rder signed after that hearing identified the dismis sal date as April 18, 2022. In its August 31, 2021 “ Or der Granting Extension of Dismissal Date, ” the trial court set jury and non

- jury dates for final trial on the merits and “ extended ” the dismissal date to the same date previously identified i n the May 25 order as the dismissal date: April 18, 2022. The order recites that at a recent hearing “ an exten sion cam e on for consideration, ” but the record contains no extension request by any party.

On September 28, 2021, the Department served all pa rti es with a “ Notice of Setting ” for trial on the merits, which included two non
- jury dates

— March 21 and April 4, 2022

— and two jury dates

— March 28 and April 11, 2022. On Decem ber 22, 2021, the trial court signed a “ P erman ency H earing O rder before Final He aring , ” ag ain iden tifying the dismissal date
as April 18, 2022, noting the same four trial settings set out in the Department ’ s “ Notice of Setting , ” and setting the next permanency hearing for Ap ril 1 2, 2022.

On March 18, 2022, Father ’ s counsel filed a motion fo r wit hdrawal and substi tution of counsel, which set forth the same four previously noticed jury and non

- jur y trial4

settings, and which the trial court granted that same day . On March 28, Father ’ s new counsel filed on his behalf an original answe r an d coun ter
- p etition. The plead ing did not contain a jury demand. On April 7, 2022, the Department se r ved all par ties with another Notice of Setting for trial on the merits, including one jury date (Ap ril 11, 2022) and one non - jury date (April 18, 2022 ) . O n Apr il 14 , Fath er ’ s attorney filed a motion for continuance, reciting that the case was set for a no n -

jury tria l on April 18 , that the dismissal date was April 18, and that Father “ believed that a jury demand had been filed in this case ” and i nformed his new c ounse l of such belief on April 14. In the moti on, Fat her requested a continuance so that his new counsel c ould “ become
more familiar with the fact s and history of the case ” and so that “ a jury demand can be filed and a jury of his peers can be c onvened. ” No j ury demand appears in the clerk ’ s record.

On April 1 8, the day of the bench trial, Pedro ’ s attorney ad litem filed a motion for the court to conf

er with the child , reciting that “ parental rights and possession / access to the child in this case is contes ted ” and that Pedro was fifteen. T h e motion requested that the attorney ad l item be pr esent at the interview but made no mention of a record being made. At the beginning of trial, the cou rt addressed both the ad litem ’ s motion and Fath er ’ s motio n for a
c ontinuance, granting the ad litem ’ s motion and denying Father ’ s. After the two

- d ay bench trial, the court rendered judgment terminatin g Father ’ s parental rights to both children. See id. § 161.001(b)(1)(D), (E), (O), (b) (2)
. After timely reques ting find ings of fact and conclusions of law, Father perfected this appeal.
DI SCUSS ION Motion for contin uance

I n his first issue, Father contend s that by “ miscalculating the d ismissal deadline , ” the trial court wrongly denied him his “ right to a jury tri al. ” H e argues that the trial court5

conflated the di smissal deadlines in the COS case and the termination case a nd thus c oncluded that it could not extend the dismissal deadline to accommodate his motion for continuance
. See id. § 263.401 (b) (permitting trial cour t to e xtend automatic d ismissal d ate prescribed in Subsection (a) for up to 180 days if it finds that “ extraordi nary circumstances necessitate the child remaining in the temporary managing conservatorship of the [D]epartment ” and tha t such appoin tment is i n chil d ’ s best interest ). He explains that , while the trial cour t ’ s August 31, 2021 order purported to “ extend ” the dismissal deadline to April 18, 2022, such d ate did not constitute
an extension but merely the ordinary automatic dismissal date under Subs ection (a) of Section 263.401 bec ause th e April 12, 2021 order appointing the Department as the children ’ s TMC

w as the operative order, not the previous order appointing the D epartment as TMC that expired on Nov ember 18, 2020 , by operation of law
. However , we ne ed not determine which order appointing the Department as TMC was the operative one for purposes of ca lcul ating the automatic dismissal date and any po tential e xtension because , as explained below, we conclude that regardless of the dismis sal date t he trial court did not abuse its discret ion in denying F a ther ’ s motion for continuance. See Villegas v. Carter , 711 S.W.2d 624, 626 (Tex. 1986) ( noting that appellate courts revie w ruling on motion for continuance for a buse of discretion) ; R.J.R . v. Texas Dep ’ t of Fam. & Protective Servs. , No. 03

- 21

- 00245

- CV, 2021 WL 4775570, at * 2 (Tex. App.

— Austin Oct. 13, 2021, no pet.) (mem. op.) (same). Moreover, neither Father ’ s original attorney
nor his substituting counsel ever filed a jury demand

— timely or u ntime ly

— wit h an answer, counter
- petition, aff

idavit of inability to pay costs, or as a separate pleading
. While Father frames his issue on appeal as the “ wrongful denial of his right to a jury trial, ” the procedural vehicle he employed in th e tria l court was a motion for continuance , and we there fore revie w the trial court ’ s challenged ruling under the standar ds of review6

ap plicable to such motions. A motion for continuance m ay not be granted except for sufficient cause supported by affidavit, by the parties’ consent, or by operation of law. See Tex. R. Civ. P. 251
. When a motion for continuance does not comply with R ule 251 , “reviewing courts general ly presume that the tria l court did not abuse its discretion in denying the motion.” Sheen v. Sh een , No. 03

- 18

- 00358

- CV, 2019 WL 2554570 at *2 (Te x. App.

— Austin June 21, 2019,
no pet.) (mem. op.) (citing Villegas , 711 S.W.2 d at 626 ). Father ’ s motio n was not supported by affi davit and was not granted by operation of law
. Furthermore , the Depar tment and children ’ s attorneys ad litem opposed it
. We thu s presume that the trial court did not abuse its discretion in denying Father ’ s motion , and we will not di sturb the trial court ’ s action unless the record discloses a clear abuse of discretion. See Vill e gas , 711 S. W.2d at 626
.

Father ’ s former att orney had notice , since September 2 8, 2021, of the earliest possible jury setting of M arch 28, 2022 and the l atest po ssible non

- jury setting of April 11 but never filed a jury demand
. Cf. Tex. R. C iv. P. 2 16 (a) ( “ No jury trial shall be had in any civil
su it, unless a written request for a jury trial is filed with the clerk of the court within a reasonable time b efore the date set for trial of the cause on the n on - jury docket, but not less than thirty days i n advance. ” ). T hat attorney ’ s motion for withdraw al and subs ti tution of counsel recited the pending non

-

jury and jury settings
. Father ’ s new attorney, substituted in on March 18, 20 22 , also had notice of thos e sett ings but did not file a jury demand , eve n untimely. Thi s Court has held that a party ’ s fa ilure to timely file a jury dem and in a pare ntal

- rights

- termi nation cas e, when h er counsel has been aware of the trial settings throughout the case, is not

— without mo re
— suffic ient to support a complaint tha t a trial court abused its discretion in denying a motion for continuance to allo w the filin g of a jury demand. See K.J. v. Texas Dep ’ t of Fam. & Protective7

Se rv s. , No. 03

- 18

- 00556

- CV, 2018 WL 68 16795 , at * 2 (T ex. App.

— A ustin Dec. 28, 2018, pet. denied) ( mem. op.)
.

Fin ally

— even assuming that the automa tic dismiss al date could have been extended in compliance with S e ction 263.401

— Father did not request an extension beyond the April 18, 2022 “ deadline , ” as his counsel referred to the date , or attem pt to de monstrate the
ex i stence of extraordinary circumsta nces or that such extension would be in the children ’ s best interests
. See Tex. F am. Code § 263.40 1(b)
. In light of the information before the trial court, the absence of a jury demand on file or an exten sion request, th e objections by the Department and the children ’ s res pective attorneys ad litem to a continuance , and Father ’ s failure to support his motion for continuance with an affidavit, we conclude that the trial court did not abuse its discretion in denying Father ’ s motion
. In - chambers interview

In his second issue, F ather argues that the trial court violated his due

- proce ss rights and abused its discretion by interviewing Pedro in chambers , per the motion of the child ’s attor ney ad litem, without providing Father a record of th e inter view or the opportunity to cross

e xamine or rebut the child ’s statements. Fam ily Code Secti on 153.009 ( “ Interview of Child in Chambers ” ) provide s , “ In a nonjury trial or at a hearing, on the application of a party
. . . or the attorn ey ad litem for the child, the court shall inter view in chambers a child 12 years of age or older , ” and , “ O n the motion of a party . . . or th e attorney ad litem for the child
. . . the court shall
cause a record of the interview to be made when the child is 12 years of age or older .
. . . ” T ex. Fam. Code § 15 3.009(a), (f)
.

F a ther admits that he “may have failed to preserve this complaint ” be cause he did not object to the int erview , file a response to t he motion, request that a transcr ipt be mad e of th e8

interv i ew, request to be present during the interview , or raise the complaint in a motion for new trial
. S ection 153.0 09 permits any party to make application for any of the relief set forth in t hat statute , and the trial court ’ s interv iew of a child “ do es not diminish the discretion of the court in determin ing the best interests of a child. ” Id. None theless, Father contends that the trial court , “in the interest of justice, ” “should have afforded [him] the opportunity to know what his son stated ” in th e interview
.

The record reflects that Father h as, i ndeed, wa ived the issue because he did not ob ject to t he interview or o ther wise raise the issue belo w , s ee Tex. R. App. P. 33.1(a) ; Smuts v. Caracheo , No. 03

- 20

- 00559

- CV, 202 1 WL 3743 831 , at * 5 (Tex. Ap p . — Austin Aug. 25, 2021, no pet. ) ( mem. op.) , and the case he cites for support of his positi on is thus n ot on point, cf. Gabel v. Gabe l

- Ko ehne , 649 S .W.3d 590, 597

– 98 (T ex. App.

— Houston [ 1 st Dist. ] 2022, no pet.) ( concluding that , by r a ising issue in motio n for new t rial, appel lant preserved com plain t t hat

n o record w as made of in

- chambers interview despite trial court ’ s prior cont rary representations because it was appel lant ’ s first opportunity to object after lea rning abo ut such allege d error ). Because Fa ther waived error as to this complaint, we o verrule h is second issue.
C O N C L U S I O N Having overruled Father ’ s issues , we affirm the trial court ’ s final decree terminating Father ’ s pa rental rights to Pedro and Ilana.9 ________________ ________________________ __ Thomas J. Baker , Justice Before Justices Goodwin, Baker, and Kell y Affirme d File d : October 26, 2022