E. E. v. Tex. Dep't of Family & Protective Servs.

598 S.W.3d 389

E. E. and C. C., Appellants

v.TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee

NO. 03-19-00741-CV

Court of Appeals of Texas, Austin.

Filed: February 28, 2020

Tiffany Crouch Bartlett, Civil - Ad Litem for C., C.

James B. Peplinski, San Antonio, for Appellants C., C.

Amanda Wilhelm, San Antonio, for Appellants E., E.

Brenda L. Kinsler, Austin, for Appellee.

Before Chief Justice Rose, Justices Triana and Smith

OPINION

Gisela D. Triana, Justice

E.E. (the mother) and C.C. (the father) appeal from the district court's order terminating their parental rights to C.A.C. (the child), who was five years old at the time of trial. The mother, in two issues on appeal, asserts that the district court erred in striking her jury demand and that the evidence is legally and factually insufficient to support the district court's finding that termination was in the best interest of the child. The father, in two issues on appeal, challenges the legal and factual sufficiency of the evidence supporting the district court's findings that he committed the statutory grounds for termination relating to endangerment, see Tex. Fam. Code § 161.001(b)(1)(D), (E), and compliance with a court order, see id. § 161.001(b)(1)(O), and that terminating his parental rights for failure to comply with a court order denied him due process. We will reverse the portion of the district court's order terminating the mother's parental rights and remand that portion of the cause to the district court for further proceedings consistent with this opinion. We will otherwise affirm the district court's order.

BACKGROUND

The Texas Department of Family and Protective Services (the Department) filed suit for termination of the mother's and father's parental rights in February 2018. In a pretrial scheduling order filed on April 19, 2018, the district court set the case for an initial permanency hearing on August 9, 2018, and a "permanency before final hearing" on November 15, 2018. The order listed the trial date as "TBA." The scheduling order also specified that "all jury demands are to be filed on or before the date of the permanency before final hearing," i.e., November 15, 2018, and that "failure to file by that date will result in denial of jury trial." The dismissal date was scheduled for February 25, 2019. See id. § 263.401 (providing for dismissal of suit affecting parent-child relationship one year after suit is filed unless trial court commences trial on merits by that date or grants extension of time to continue case).

At the initial permanency hearing on August 9, 2018, the case was set for a bench trial before an associate judge on January 17, 2019. However, at the November 15, 2018, permanency hearing, the Department objected to the associate judge presiding over the trial. As a result, the January 17 trial setting was converted into an additional permanency hearing, and the Department was instructed to obtain a new trial setting from the district court.

The mother filed a jury demand on December 3, 2018, before any new trial date had been set.¹ The Department filed a motion to strike the jury demand, arguing that because the demand had been filed after the November 15, 2018 deadline specified in the scheduling order, it was untimely. At a hearing on December 19, 2018, an associate judge denied the mother's jury demand. Later, at the January 17, 2019 permanency hearing, the associate judge extended the dismissal date to August 24, 2019, with the final permanency hearing set for May 9, 2019, and trial set for July 18, 2019.

Meanwhile, the mother had requested and received a de novo hearing on the denial of her jury demand, which was held on February 14, 2019. At that hearing, the district court agreed with the associate judge that the mother's jury demand was untimely and granted the Department's motion to strike. The trial began on July 18, 2019, was recessed to a later date by agreement of the parties, and was continued and concluded on October 11, 2019.²

At the conclusion of trial, the district court found that termination of the mother's and father's parental rights was in the best interest of the child and that the mother and the father had committed multiple statutory grounds for termination. Specifically, the district court found that the mother and the father had: (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child; (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child; and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child. See id. § 161.001(b)(1)(D), (E), (O). Additionally, the district court found that the mother had her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E). See id. § 161.001(b)(1)(M). Based on these findings, the district court terminated the parental rights of the mother and the father. This appeal by each parent followed.

THE MOTHER'S APPEAL

Jury demand

In her first issue, the mother argues that the district court erred in striking her jury demand. The mother acknowledges that her December 3, 2018 jury demand was filed after the November 15, 2018 deadline specified in the scheduling order. However, she contends that the district court should have granted her jury demand because of the schedule changes that occurred at the November 15, 2018 and January 17, 2019 permanency hearings, which resulted in the trial date being moved to July 2019. In response, the Department argues that the scheduling order "specifically identifies the November 15, 2018 date as the deadline and does not leave open the possibility of changing the deadline should other permanency [hearings] before final hearings be held." The Department also asserts that the mother waived her right to a jury trial.

Standard of review

"We review the ‘denial of a jury demand for an abuse of discretion.’ " In re A.L.M.-F. , 593 S.W.3d 271, 282, Tex. LEXIS 426, at *17 (Tex. May 3, 2019) (quoting Mercedes-Benz Credit Corp. v. Rhyne , 925 S.W.2d 664, 666 (Tex. 1996) ). "A trial court abuses its discretion when a ‘decision is arbitrary, unreasonable, and without reference to guiding principles.’ " Id. (quoting Mercedes-Benz Credit Corp. , 925 S.W.2d at 666 ). Moreover, "a trial court ‘has no "discretion" in determining what the law is or applying’ law to facts." Pressley v. Casar , 567 S.W.3d 327, 333 (Tex. 2019) (quoting Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992) ). Accordingly, "a trial court abuses its discretion if it fails to correctly analyze or apply the law." In re Dawson , 550 S.W.3d 625, 628 (Tex. 2018) (orig. proceeding) (per curiam) (citing In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding)).

Analysis

This case involves two of the most sacred and precious rights protected by law—the right of a parent to the "companionship, care, custody, and management of her child," Santosky v. Kramer , 455 U.S. 745, 758, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and the right of a litigant to a jury trial. Parental rights are "perhaps the oldest of the fundamental liberty interests" protected by the United States Constitution. Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). They have been characterized as "essential," "a basic civil right of man," and "far more precious than property rights." Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985) (citing Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ). Moreover, an order terminating parental rights is "complete, final, irrevocable and divests for all time that natural right as well as all legal rights, privileges, duties and powers with respect to each other except for the child's right to inherit." Id. "Consequently, termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent." Id.

Similarly, "[t]he right to jury trial is one of our most precious rights, holding ‘a sacred place in English and American history.’ " General Motors Corp. v. Gayle , 951 S.W.2d 469, 476 (1997) (quoting White v. White , 108 Tex. 570, 196 S.W. 508, 512 (1917) ). The Texas Constitution provides that "[t]he right to trial by jury shall remain inviolate," Tex. Const. art. I, § 15, and guarantees litigants the right to a jury trial "of all causes in the District Courts," id. art. V, § 10. Accordingly, the right to a jury trial in Texas has been characterized as "exceptionally broad," Universe Life Ins. Co. v. Giles , 950 S.W.2d 48, 56 (Tex. 1997), and any denial of that right is "closely scrutinized," City of Garland v. Dallas Morning News , 969 S.W.2d 548, 558 (Tex. App.—Dallas 1998) (en banc), aff'd , 22 S.W.3d 351 (Tex. 2000) ; see also G.W. v. Texas Dep't of Family & Protective Servs. , No. 03-14-00580-CV, 2015 WL 658466 at *2, 2015 Tex. App. LEXIS 1330 at *6 (Tex. App.—Austin Feb. 11, 2015, no pet.) (mem. op.) ("The ‘right to a jury trial as guaranteed by our Constitution is one of our most precious rights and the denial of that right is a very serious matter.’ " (quoting In re J.C. , 108 S.W.3d 914, 917 (Tex. App.—Texarkana 2003, no pet.) )).

To perfect one's right to a jury trial in a civil case, the rules require that a jury demand be filed in writing within "a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance." Tex. R. Civ. P. 216.³ However, if a pretrial scheduling order establishes a different deadline for filing a jury demand than the thirty-day deadline in Rule 216, the scheduling order controls. See Lindley v. Johnson , 936 S.W.2d 53, 55 (Tex. App.—Tyler 1996, writ denied)...