In re A.S.

IN THE INTEREST OF A.S., A CHILD

No. 10-21-00272-CV

Court of Appeals of Texas, Tenth District

April 6, 2022

From the 74th District Court McLennan County, Texas Trial Court No. 2020-1309-3

Before Chief Justice Gray, Justice Johnson, and Justice Smith

MEMORANDUM OPINION

MATT JOHNSON, JUSTICE

The mother (Mother) and father (Father) of A.S. appeal the final judgment terminating their parental rights. We will affirm.

Background

The Department of Family and Protective Services (the Department) became involved with A.S.'s family when law enforcement was called to their residence in Tarrant County after a physical altercation between Mother and her older daughter in early 2019.^[1] A.S., who was one year old, was present. Father was not present as he had been incarcerated in California since before A.S.'s birth. A.S.'s family was referred to the Department's Family Based Safety Services, and Mother agreed to voluntarily place A.S. with Mother's mother (Grandmother). Another altercation between Mother and her older daughter resulted in a Department-implemented safety plan requiring Mother's contact with A.S. to be supervised by Grandmother. When an unapproved family member moved in with Grandmother, A.S. was placed, at Mother's request, with a family friend. The family friend was unable to care for A.S. on a long-term basis, and A.S. was placed with Mother's maternal cousin (Cousin) in Hill County. Mother and her son moved to McLennan County in November 2019. Due to Mother's ongoing use of methamphetamine, the Department filed its original petition for conservatorship and termination on January 29, 2020 in Hill County. An Order for Protection was signed the same day, and A.S. was placed in the temporary managing conservatorship of the Department. The Department placed A.S. in an unrelated foster home in April 2020, where she has remained while the termination action is pending. The termination suit was then transferred to McLennan County. The original goal was family reunification, with a concurrent permanency goal of unrelated adoption. The goal changed to unrelated adoption due to Mother's continued use of methamphetamine and refusal to cooperate with the Department.

The case was referred to an associate judge. On April 28, 2021 Mother filed a withdrawal of her request for a trial by jury that she asserted had been filed on November 2, 2021.^[2] On June 2, 2021, Mother filed her second request for a jury trial, and she filed a Request to Revoke Withdrawal of Jury Trial the following day. After a hearing on June 11, 2021, the referring court denied Mother's request to place the final termination hearing on the jury docket.

The associate judge conducted the final termination hearing on July 19, 2021, and issued a letter ruling on July 21, 2021 that denied the Department's request to terminate the rights of Mother and Father. However, the associate judge appointed the Department as the sole managing conservator of A.S. and approved the placement of A.S. with the foster family.

The Department filed a request for a de novo hearing before the referring court. Both Mother and Father objected to the Department's request. Both Mother and Father argued that the Department's request failed to state with specificity the issues to be reviewed, and Mother additionally argued that the Department failed to request that the associate judge issue findings of fact and conclusions of law. The referring court orally denied both objections on August 20, 2021, and the de novo hearing commenced the same day. The de novo hearing concluded on October 14, 2021.

At the de novo hearing, the Department orally requested termination of Mother's parental rights under subsections (D), (E), and (O) and requested termination of Father's rights under subsection (N). The ad litem concurred with the Department's request, but additionally requested termination of Father's rights under subsection (E). The referring court issued a letter ruling on October 15, 2021 that expressed the intent to grant the Department's request for termination of the parental rights of both Mother and Father. Mother filed a notice of appeal on October 29, 2021. The referring court signed an Order of Final Termination on December 9, 2021.^[3] Father filed a notice of appeal on December 15, 2021. The referring court then signed a Nunc Pro Tunc Final Order of Termination on December 16, 2021, noting that the cause number was incorrect on the Final Order of Termination. The Nunc Pro Tunc Order terminated Mother's parental rights due to violations of subsections (D), (E), (O), and (P), terminated Father's rights due to violations of subsections (D), (E), and (N), and found that termination of their rights was in A.S.'s best interest.

Issues

Mother raises two issues: (1) the referring court abused its discretion by denying Mother the right to a jury trial while conducting a trial de novo rather than a de novo hearing; and (2) the referring court should protect a parent's right to a jury trial when the Department seeks termination of a parent's rights through a de novo review.

In one issue, Father asserts that the evidence was not sufficient to support a finding that his parental rights should be terminated.

Mother's Issues One and Two

Authority

The trial court's denial of a jury demand is reviewed for an abuse of discretion. In re A.L.M.-F., 593 S.W.3d 271, 282 (Tex. 2019). "A trial court abuses its discretion when a 'decision is arbitrary, unreasonable, and without reference to guiding principles.'" Id. (quoting Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996)).

Under the Rules of Civil Procedure, a jury demand must be filed with the clerk of the court no less than thirty days in advance of the trial date. Tex.R.Civ.P. 216(a). A timely request creates a rebuttable presumption that a jury demand should be granted. In re A.L.M.-F., 564 S.W.3d 441, 444 (Tex. App.-Waco 2017), aff'd, 593 S.W.3d 271 (Tex. 2019) (citing Simpson v. Stem, 822 S.W.2d 323, 324 (Tex. App.-Waco 1992, orig. proceeding)). However, the trial court has the discretion to determine what constitutes a reasonable amount of time depending upon the circumstances of each case. Id. The opposing party may rebut the presumption by showing that a jury trial will cause injury, will disrupt the trial court's docket, or will impede the ordinary handling of the court's business. A.L.M.-F., 593 S.W.3d at 283.

The Family Code provides that a party may request a de novo hearing before the referring court after a ruling by an associate judge in a termination case. Tex. Fam. Code Ann. § 201.015. The de novo hearing is not a "trial de novo," which "is a new and independent action in the reviewing court with 'all the attributes of an original action' as if no trial of any kind has occurred in the court below." A.L.M.-F., 593 S.W.3d at 277 (quoting Key W. Life Ins. Co. v. State Bd. of Ins., 163 Tex. 11, 350 S.W.2d 839, 846 (1961)). "[T]he term 'de novo hearing' appears to bear a special meaning that is relatively unique to the associate-judge referral statutes and governed by the procedures specified in the authorizing statutes." A.L.M.-F., 593 S.W.3d at 277. The procedures applicable to a section 201.015 de novo hearing are inconsistent with the established understanding of a trial de novo mainly because the de novo hearing is not entirely independent of the proceedings before the associate judge. Id. at 278. The de novo hearing is not an entirely new and independent action, but an extension of the original trial on the merits before the associate judge. Id. at 280.

The de novo hearing encompasses only those issues specified in the motion requesting a de novo hearing before the referring court. Id.; Tex. Fam. Code Ann. § 201.015(b). There is nothing in the statute that precludes a party from requesting review of all issues that were raised in the trial on the merits or from calling witnesses regarding those issues at the de novo hearing. See In re L.R., 324 S.W.3d 885, 890 n.5 (Tex. App.-Austin 2010, orig. proceeding) (raising all issues); In re R.R., 537 S.W.3d 621, 624 (Tex. App.-Austin 2017, orig. proceeding) (calling witnesses).

A party may request a jury at the de novo hearing. See Tex. Fam. Code Ann. § 201.015(i). However, a party is not entitled to a jury at a de novo hearing "if the associate judge's proposed order or judgment resulted from a jury trial." Id. It is discretionary with the referring court whether to grant a first-time jury trial in a de novo hearing. A.L.M.-F., 593 S.W.3d at 282.

Discussion

As we have previously held, an appellant's failure to show that dates are available on the court's docket for a jury trial supports the denial of a jury. A.L.M.-F., 564 S.W.3d at 444. The record does not reflect that Mother established that any dates were available on the jury docket before the associate judge within the thirty days after her renewed jury demand was made.

Additionally both the Department and A.S.'s attorney ad litem argued that delaying the case to put it on the jury docket would be harmful to A.S. due to the lack of resolution. Mother presents nothing to rebut this potential injury to A.S.

Also, Mother was not absolutely denied the right to a jury trial. Mother's jury request filed before the final termination hearing was untimely, and she did not request a jury for the de novo hearing.

Finally, the procedures followed by the referring court at the de novo hearing did not transform the proceeding into a trial de novo.

Mother was not deprived of her right to a jury trial prior to the termination of her parental rights, and the referring court did not abuse its discretion in denying Mother's renewed request for a jury after her voluntary withdrawal. Mother's...