in the Interest of K.A.H., a Child

Affirmed; Opinion Filed February 13, 2017.

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01067-CV

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

MEMORANDUM OPINION
Before Justices Francis, Stoddart, and Schenck
Opinion by Justice Stoddart

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 was going 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. Mother completed an affidavit of indigence on June 2, 2016, and was appointed

new counsel the same day.

Mother’s appointed attorney filed a written jury demand on June 29, 2016, thirty-five

days before the trial setting. On August 3, 2016, the date set for trial, Mother’s attorney objected

to starting the final hearing without a jury. The Department objected to the jury demand 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 within 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
1
Because the child was removed after a monitored return, the dismissal deadline was the later of the
original dismissal date or one hundred eighty days after the removal. TEX. FAM. CODE ANN. § 263.403(c). The
original dismissal date was August 8, 2016. Id. § 263.401(a).

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 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 case has to be decided by on — on August 26th?

CPS: Yes, sir.

Court: On August 26th. We are set for a two-week criminal trial that is set on the
15th which would leave next Monday the 8th being the only date that we could do
it. I don’t mind starting the bench trial and recessing so the mother’s attorney can
get whatever documents she can get or whatever discovery she is still entitled to
get. Certainly, at least the stuff in the file.

The trial court then recessed the hearing and conducted a bench trial on August 24, 2016

at which Mother’s parental rights to K.A.H were terminated. This appeal followed.

STANDARD OF REVIEW

We review the trial court’s denial of a party’s demand for a jury trial under an abuse of

discretion standard. In re J.N.F., 116 S.W.3d 426, 430 (Tex. App.–Houston [14th Dist.] 2003,

no pet.) (citing Mercedes–Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996)). This

standard requires a review of the entire record. Id. The test for abuse of discretion is whether

the trial court acted without reference to any guiding rules and principles. Id.

ANALYSIS

Mother contends it was an abuse of discretion to deny her request for a jury trial because

the jury demand was filed more than thirty days before the trial date. “No jury trial shall be had

in any civil suit, unless a written request for a jury trial is filed with the clerk of the court a

reasonable time before the date set for trial of the cause on the non-jury docket, but not less than

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thirty days in advance.” TEX. R. CIV. P. 216. The jury fee is not required when a party files an

affidavit of inability to pay the fee within the time for demanding a jury trial. TEX. R. CIV. P.

217.

A request for a jury trial made in advance of the thirty-day deadline is presumed to have

been made a reasonable time before trial. Halsell v. Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991)

(per curiam); In re V.R.W., 41 S.W.3d 183, 194–95 (Tex. App.—Houston [14th Dist.] 2001, no

pet.), disapproved on other grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002). However, the

presumption may be rebutted by a showing that granting a jury trial would operate to injure the

adverse party, disrupt the court’s docket, or impede the ordinary handling of the court’s business.

Halsell, 810 S.W.2d at 371. “The refusal to grant a timely requested jury trial is harmless error

only if the record shows that no material issues of fact exists and an instructed verdict would not

have been justified.” Id.

Involuntary termination cases face strict statutory deadlines. See TEX. FAM. CODE ANN.

§§ 263.401–.408 (court shall dismiss suit on the Monday after the first anniversary of

appointment of Department as temporary managing conservator unless trial on the merits has

commenced or statutory extension granted). In this case, the dismissal deadline was extended to

August 26, 2016 because the child was removed after a monitored return. See id. § 263.403(c).

At the time Mother filed her jury demand, the case was pending for over ten months and only

eight weeks remained before the dismissal deadline. Although the jury demand was filed more

than thirty days before the trial setting, the trial court was hampered in managing its docket

because of the late request and looming dismissal deadline. The trial court stated that no jury

was available to begin trial on August 8 and the court had a two-week criminal jury trial

beginning August 15, leaving no time for a jury trial in this case before the August 26 dismissal

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date. The record indicates the trial court considered its docket, the ordinary handling of its

business, and the adverse impact of the jury request on the opposing party. The trial court could

reasonably conclude that granting a jury trial would have disrupted the court’s docket and

impeded the ordinary handling of the court’s business. On this record, we cannot conclude that

the trial court abused its discretion by denying the request for a jury trial.

CONCLUSION

We overrule Mother’s issue on appeal and affirm the trial court’s order of termination.

/Craig Stoddart/
CRAIG STODDART
JUSTICE

161067F.P05

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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

IN THE INTEREST OF K.A.H., A CHILD On Appeal from the 15th Judicial District
Court, Grayson County, Texas
No. 05-16-01067-CV Trial Court Cause No. FA-15-1179.
Opinion delivered by Justice Stoddart.
Justices Francis and Schenck participating.

In accordance with this Court’s opinion of this date, the trial court’s August 29, 2016
order of termination is AFFIRMED.

Judgment entered this 13th day of February, 2017.

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