### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00580- CV

G. W., A ppellan t

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F B URNET COUNTY , 424 TH JUDICI AL DISTRICT

NO. 421 19, H ONO RAB LE DANIEL H . M ILLS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
G.W. appeals the tria l court’s judg ment terminating his pare ntal rig hts to his child,
S.W ., following a bench trial. See Tex. Fa m. Code § 161.001. I n two issues, he contends that the 1
trial court denied him the rig ht to eff ective assistance of counsel beca use it delay ed appointing him counsel a nd that the trial court abused its discr etion when it de nied his r equest for a jury trial. For the reasons that foll o w, we re verse the j udg ment and remand t he case to the t rial court for further
proce eding s consistent with this opi nion. 2

We use initials to ref

er to appellant and his child. See Tex. Fam. Code § 109.002(d); Tex. 1 R. App. P. 9.8.

The trial court also terminated the pare ntal rig hts of the child’s mother, K.K., i n t h e 2 judgme nt. Prior to the b en ch trial, the m other ex ecute d an affidavit of relinquishment of parental rig hts and has not appe aled.BACK GR OUND The Depa rtment filed a petition seeking to terminate the pare ntal rig hts of the mother and G.W. in November 2013. At that time and during the pendenc y of this c ase, G.W. has been in jail. G.W. was serve d with the petition in November 2013, and he filed a letter with the district cler k in Dece mber 2013, prote sting the suit and r equesting , among other re lief, a be nch wa rra nt. An adver sary hear ing was held in N ovember 2013, and a status r eview hear ing was held in J anuar

y 2014. Both hear ings wer e befor e an associate judge

. G.W.’s re q u est for a bench

war rant was not g rante d fo r ei t h er hear ing, and he did not attend the hear ings. He also was not appointed counsel. At the J anuar y 2 0 1 4 h ea ri ng , the rec ord ref lects that the associate judge was under the impression that G.W. was in defa ult. The in i t i al p er m anency hear ing, also befor e the associate judge , was held in May 2014. Ag ain, G.W. did not attend this hear ing. At the hear ing, the Depa rtment informed the associate judge of the lett er fr o m G. W

. opposing the termination of his
p a r e n tal rig hts. At the sug g estion of the Depa rtment’s counsel, the associate judge appointed c o u n s e l for G.W.
G.W. filed a reque st for a jury trial on J une 20, 2 0 1 4 , wh i ch t he associate judge subsequently denied. On Aug ust 15, 2014, G.W. filed a reque st for de novo revie w of the associate judge ’s denial of his reque st for a jury trial. G.W. also filed a reque st for jury trial on the same day 3

as the bench trial. G.W., howe ver, did not pay a jury fee or file an oath of inability to pa y with the district clerk. See Tex. R. C iv. P. 216, 217.

Acc ording to G.W., the associate judge denied G.W.’s reque st for a jury trial on 3 Aug ust 15, 2014. The order deny ing de novo appea l simil arly states that the associate judge denied the re quest on that day

. 2The bench trial occur red on Aug ust 18, 2014. The Depa rtment called the case worke r who was assig ned to the child and the child’s g rea t-g randmother , the attorney ad litem called the
CASA repr esenta tive, and G.W. testified on his own behalf

. The associate judge found that “[a] jury

was waived” and terminated G.W.’s pare ntal rig hts based on subsections (D), (E), and (Q) of section 161.001(1) of the Family Code and his finding that termination of G.W.’s pare ntal rig hts was in the child’s best intere st. See Tex. Fam. Code § 161.001(1) (D), ( E), (Q ), (2)

. 4

After a hearing on September 3, 2014, the di strict court denied the de no v o ap p ea l of G.W.’s reque st for a jury trial. I n its order , the district court found that the reque st for a jury trial

was not f iled in a timely manner pursuant to T exas Rule of Civil Procedur e 217 and r emande d the

case to the associate judge

. See Tex. R. Civ. P. 217 (addr essing oath of inability in lieu of deposit for jury fee ). The associate judge signe d the final order on September 5, 2014. This appea l followed. 5

As t o t h e statutory g rounds, the trial court found that G.W. “knowing ly place d or 4 knowing ly

allowed the child to rema in in conditions or surrounding s which enda ng er the phy sical o r em otional well-be ing of the child,” “eng ag ed in conduct or knowing ly place d the child with persons who eng ag ed in conduct which endang ers the phy sical or emotional well-be ing of the child,” and “knowing ly eng ag ed in criminal conduct that has resulted in [G.W .]’s conviction of an offe nse and confine ment or imprisonment and inability to car e for the child for not less than two y ear s from the date of

filing the petition.” See Tex. Fam. Code § 160.001(1) (D), ( E), (Q ). As a threshold matter, we reque sted a response from G.W. conce rning this Court’s subject 5 matter jurisdiction over the associate judge ’s order

. See Rusk State Hosp. v. Black , 392 S.W .3d 88, 103 (Tex. 2012) (“Subjec t ma tter jurisdiction c annot be waived or confe rre d by ag ree ment, can be raised at any time, and must be considere d by a court sua sponte.”). I n his response , G.W. urg es that this Court has jurisdiction over the associate judge ’s order pursuant to section 201.2041 of the Family Code. See Tex. Fam. Code § 201.2041(a) ; see also id. §§ 201.201–.209 (addr essing specific rules for associate judge s of child protec tion courts). We ag ree with G.W. that section 201.2041(a) applies here , and that the order , there fore , is final and appea lable. See In re A.W

. , 384 S.W .3d 872, 874 (Tex. App.—San Antonio 2012, no pet.) (noting in context of child protec tion case that associate judge ’s order of termination did not require adoption by district judge and was final, appea lable order ); see also 33 J ohn Elder, Tex. Prac. Series: Handbook of Fam. Law § 31:5 (2014–2015 ed.); cf. Tex. Fam. Code § 201.013(b) (stating that g ener ally “if a reque st for a de novo hear ing befor e the 3ANALYSIS
I n two issues, G.W. co n tends that the trial court denied him the rig ht to eff ective assistance of counsel when it delay ed appointing him counsel until afte r t h e ad v er s ary and status revie w hear ings, see In re M.S. , 115 S.W

. 3 d 5 3 4 , 5 4 4 (Tex. 2003), and that it abused its discretion when it denied his reque st for a jury trial. See Me r ce des -B en z Credit Corp. v. Rhyne , 925 S.W .2d 664, 666 (Tex. 1996) (denia l of reque st for jury trial revie wed for abuse of discretion). We beg in with the second issue be cause it is di spositive. See Tex. R. App. P . 47.1.

“A pare ntal rig hts termination proce eding encumbe rs a value ‘fa r more prec ious than
any prope rty rig ht.’” In re E.R. , 385 S.W .3d 552, 563 (Tex. 2012) (quoting Santosky v. Kramer , 455 U.S. 745, 758 (1982))

. “Rig hts that inure in t he par ent-c hild relationship are of constit utional dimensions.” In re J.C. , 108 S.W .3d 914, 917 (Tex. App.—Texarkana 2003, no pet.) (citing Stanley

v. Illinois , 405 U.S. 645 (1972); In re G.M

. , 5 9 6 S

. W

. 2 d 846, 846 (Tex. 1980)). “B eca use the involuntary termination of pare ntal rig hts is complete, final, and irrevoc able, trial court proce eding s order ing termination must be strictly scrutinized.” Id. (citation omitted). Fur ther, the “rig ht to a jury trial as g uara

nteed by our Constit ution is one of our most prec ious rig hts and the denial of that rig ht is a very serious matter.” Id .; see Tex. Cons t. art. I , § 15; a rt. V, § 10. “Restrictions place d on the rig ht to a jury trial will be subjected to the utmost scrutiny .” Bell Helicopter Textron, Inc. v. Abbott , 863 S.W .2d 139, 141 (Tex. App.—Texarkana 1993, writ denied)

.

ref err ing court is not timely filed or the rig ht to a de novo hear ing befor e the refer ring court is waived, the proposed order or judgme nt of the associate judge become s the order or judgme nt of the ref err ing c ourt only

on the re fer

ring court’s sig ning the proposed or der or judgme nt”). 4G.W.’s initial jury reque st was made more than a month prior to the trial setting and

shortly afte r counsel was appointed for G.W. See Tex. R. Civ. P. 2 1 6 (n o t i n g t h at jury reque st should be made “a rea sonable time be fore the date set for trial of the cause on the non-jury docket, but not less than thirty day s in advanc e”)

. “A reque st in advanc e of the thirty -day deadline is presumed to have been made a rea sonable time befor e trial.” Halsell v. Dehoy os , 810 S.W .2d 371,
372 (Tex. 1991) (per curia m). Be cause the reque st was made more than thirty day s befor e the trial setting, G.W.’s reque st for a jury trial was presumed to ha ve been made in a rea sonable time. See 6
id. The Department could have rebutted that presumption “by showing that the gra nting of a jury
t ri al would opera te to injure the [Department], disrupt the court’s docket, or impede the ordinary handling of the court’s business.” Id

. But the Depa rtment failed to do so. The bench trial was held

sever al months befor e the mandatory dismiss al date, see Tex. Fa m. Code § 263.401(a) , and the trial lasted less than one hour.

The Depa rtment urg es that the trial court did not abuse its discretion when it denied G.W.’s jur

y reque st be cause G.W. did not pa y a jury fee or file an aff

idavit of indige nce. See Tex. R. Civ. P. 216 (re quiring reque st f or jury trial and deposit of jury fee or oath of ina bility ), 217 (fe e
not require d if party files “af fidavit to the eff

ect that he is unable to make such deposit, and that he

can not, by the pledg e of proper ty or otherwise, obtain the money nece ssary for that purpose” ); see

Although a scheduling order is not in the rec ord, acc ording to G.W., the trial court issued 6 a s ch ed u l i n g order setting the deadline of May 2, 2014, for jury demands. Given that G.W.’ s attorney was not appointed until that day , we decline to conclude that G.W.’s jury re q u es t was unt i m el y based on the scheduling order

. See In re J.C. , 108 S.W .3d 914, 916–17 (Tex. App.—Tex arka

na 2003, no pet.) (consider ing lateness of appointment of counsel to s u p p o rt conclusion that re quest for jury trial made by

counsel wa s timely ). 5also In re M.N.M. , No. 05-14-00723- CV, 2014 Tex. App

. L E XI S 12853, at *22–24 (Tex.

App.—Dallas Dec

. 1, 2014, no pet.) (mem. op.) (conc luding that m o t her had not demonstrated

reve rsible err or respe cting denial of jury trial reque st when re cord did not re flec t tha t jur y fee paid

or that “[m] other was excused from pay i n g s u ch fee ”). The rec ord does not ref lect that G.W. deposited a jury

fee or filed a

n oath of inability

to pay with the district cler

k, and the district cour

t in its order deny ing the reque st for de novo revie w of G.W.’s reque st for a jury trial cited Texas Rule of Civil P roce dure 217 to support its ruling

. See Tex. R. C iv. P. 217.

G.W.’s indige ncy , howeve r, was not contested. The associa t e judge appointed counsel for G.W. a t the May 2014 hear ing at the sug g estion of the Depa rtment’s attorney and afte r being informed by the Depa rtment that G.W. had responde d in opposition to the termination of his
pare ntal rig hts. See Tex. Fam. Code §§ 107.013 (re quiring trial court to appoint an attorney ad litem
to repr esent the interes t s o f “an indige nt pare nt who responds in opposition to the termination”),
263.0061 (re quiring court to inform pare nts not repr esente d by attorney at hear ings of rig ht to
court-a ppointed attorney if indige nt a nd, “[i] f the court deter

mines the pare nt is indige nt, the court shall appoint an attorney to repr esent the par en t ”)

. I n this context, we decline to conclude that G.W.’s jur

y trial reque st was untimely based on the failure to de posit the jury fee or to f ile an oath of inability

under r ule 217. See I

n re J.C. , 108 S.W .3d at 916–17.
Fur ther, “[e]ven when a party does not timely pay the jury fee , courts have held that

a trial court should acc ord the rig ht to jury trial if it can be done without interfe ring with the court’s docket, delay

ing the trial, or injuring t h e o p p o sing party .” Gene ral Motors Corp. v. Gayle , 951 S.W .2d 469, 476 (Tex. 1997) (citing , among other authority , Allen v. Plummer , 9 S.W

. 672, 673

6(1888) ( “[T] he fa ilure to make [ a ti mely jury fee pay ment] does not forfeit the rig ht to have a tr ial by jury when such failure does not opera te to the prejudice of the other party .”))

. As was previously stated, the bench trial was held sever al months befor e t h e m andator y dismiss al date, and the trial lasted l ess t han one hour. The pa renta l rig hts at i ssue were of constitutional dimension, and there

was no showing that g ranting a jury trial would harm the opposing party or the court’s schedule

. On this rec ord, we conclude that the trial court abused its discretion when it denied G.W.’s reque st for

a jury trial. See In re J.C. , 108 S.W .3d at 916–17 (re versing judgme nt and rema nding for jury trial when incar cer ated pare nt’s attorney filed jury reque st with i n 3 0 day s of trial setting but “at his first opportunity ”).

We also conclude that the ref usal to g rant a jury trial was harmful err or. “A ref usal
to g rant a jury trial is harmless err or only if the rec ord shows that no materia l issues of fac t exis t and

an i n s t ructe d verdic t would have been justified.” Halsell , 810 S.W .2d at 372; In re J. N

. F

. , 116 S.W .3d 426, 437 (Tex. App.—Houston [14t h Dist.] 2003, no pet.). A disputed issue at trial was whether termination of G.W.’s pare ntal rig hts was in the best interest of the child. See Tex. Fam. Code § 161.001(2); Holley v. Adams , 544 S.W .2d 367, 371–72 (Tex. 1976). G.W. testified that he believed tha t when he w as re lease d from jail that he “could do ever y thing that’s nece ssary

to raise [hi s] son and to raise him the rig ht way and, y ou know, to be a g ood fathe r.” He also denied harming
h is son. Viewing this evidenc e under the clea r and convincing standard of proof, we cann o t conclude that direc ted verdic t would have been justified beca use disputed fac ts surrounde d the best interest fin d i n g. See In re J.N.F. , 116 S.W .3d at 437; see also In re J.F.C. , 96 S.W .3d 256, 263 (Tex. 2002) (discussing standard of proof and revie w in pare ntal-rig hts termination case s); In re J.C. ,

7108 S

. W

. 3 d at 917 (conc luding that testimony by pare nt was sufficie nt to defe at motion for

instructed verdict); In re U.P. , 105 S.W .3d 222, 230 (Tex. App.—Houston [14t h Dist.] 2003, pet. denied) (“The re is a strong presumption that the best interest of a child is serve d by keeping the child with the natura l pare nt.”).

The Depa rtment urg es that G.W. waived his rig ht to a jury trial. The Depa rtment focuse s on G.W.’s attorney ’s statement during the opening ann o u nceme nts of the bench trial that “[w]e’re rea dy ” and G.W.’s failure to reque st a jury trial or seek a continuance at that t i m e. The judgme nt a lso inc ludes a statement that “[a] jury was waived.” “I n order to prese rve a trial court’s

err or in conducting a bench trial despite a party ’s perf ecte d rig ht to a jury trial, the party must timely object to the trial court’s action or aff irmatively indicate that it intends to exercise its rig ht to a jury trial.” In re D.R. , 177 S.W .3d 574, 580 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) ; see also
Tex. R. App. P. 33.1; Brothers v. W est , No

. 2 -0 8 -2 02-CV, 2009 Tex. App. L EXI S 3168, at *5–6 (Tex. App.—For

t Worth May 7, 2009, no pet.) (mem. op.) (noting that litigant waives rig ht to jury trial “if the litig ant par

ticipates in a be nch trial without objection”)

. At the time of the bench trial, G.W.’s reque st for de novo revie w of the denial of his
reque st f or a jury trial was pe nding be fore the district court, a nd he filed a

nother re quest for a jury trial on the day of the bench trial. These actions aff irmatively showed that he did not intend to waive his rig ht to a jury trial and, on this rec ord, wer e sufficie nt to prese rve his complaint as to the denial of his reque st for a jury trial. See In re D.R. , 177 S.W .3d at 580; W est , 2009 Tex. App. L EXI S 3168,
at *5–6 (conc luding civil litigant waived reque st for jury trial beca use he did not object to “trial court
proce eding with a bench t ri al , ” an d “did not otherwise take any aff irmative action to indicate that

8he intended to sta nd on his pe rfe cted rig ht to a jury ”). Thus, we conclude that G.W. did not w aive his rig ht to a jury trial. We sustain G.W.’s second issue and do not re ach his fir st issue. See Tex. R. App. P. 47.1.

CONCLUSION

For these rea sons, we reve rse the portion o f th e ju d g me n t terminating G.W.’s pare ntal rig hts and rema

nd the ca se to the trial cour t for fur ther proc eeding s consistent with this opi nion.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Rose, Jus tices Pemberton a nd Goodwin
Reverse d and Remande d Filed: F ebrua

ry 11, 2015

9