L. C. and S. B.-N. v. Texas Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: March 26, 2021
• Docket: 03-20-00481-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00481-CV

L. C. and S. B.-N., Appellants

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 302,716-B, THE HONORABLE ALAN MAYFIELD, JUDGE PRESIDING

CONCURRING AND DISSENTING OPINION

I agree with the majority that the evidence is not legally insufficient to support the

judgment terminating L.C.’s parental rights. However, because I disagree that the district court

abused its discretion by denying S.B.-N.’s motion for a jury trial, I respectfully dissent.

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. 2019). A trial court abuses its discretion if it acts

“without reference to guiding rules and principles such that the ruling is arbitrary or

unreasonable.” Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717 (Tex. 2020). There

is no abuse of discretion “as long as some evidence of a substantive and probative character

exists to support the trial court’s decision.” Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex.

App.—Austin 2006, pet. denied).

I agree with the majority that S.B.-N. perfected her right to a jury trial—the

record demonstrates that she timely filed her request and that her indigence was uncontested. See Tex. R. Civ. P. 216 (requiring litigants to timely file jury demand and pay jury fee or prove

indigency). I first part ways with the majority in its analysis of waiver. “Waiver is the

‘intentional relinquishment of a known right or intentional conduct inconsistent with claiming

that right.’” LaLonde v. Gosnell, 593 S.W.3d 212, 218–19 (Tex. 2019) (quoting Crosstex

Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex. 2014)). “Silence or inaction,

for so long a period as to show an intention to yield the known right, is also enough to prove

waiver.” Id. at 220 n.23 (citing Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643

(Tex. 1996)). The majority rejects the Department’s argument that S.B.-N. waived her right by

remaining silent at several hearings setting the case for a bench trial. In reaching that conclusion,

the majority casts doubt on whether it is possible to waive a perfected jury right through inaction.

Specifically, the majority reasons that once S.B.-N. perfected her right to a jury trial, “she was

entitled to proceed as if the clerk’s office had properly placed the cause on the jury docket; she

was not required to take further action to ensure that right.” Ante at ___. The right to a jury trial

is a precious constitutional right, but “parties may waive statutory and even constitutional

rights.” See LaLonde, 593 S.W.3d at 220 n.23. I would not hold or imply that a litigant who

perfects her right to a jury trial may remain silent if the court proceeds with a bench trial and

maintain that right.

I now turn to the merits of the district court’s ruling. A timely jury request is

“presumptively reasonable and ordinarily must be granted absent evidence that granting the

request would ‘(1) injure the adverse party, (2) disrupt the court’s docket, or (3) impede the

ordinary handling of the court’s business.’” In re A.L.M.-F., 593 S.W.3d at 283 (quoting Halsell

v. Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991) (per curiam)). Viewing the record under this

standard, I cannot say that the district court abused its discretion.

2 First, the record reflects that granting S.B.-N.’s request would have

significantly delayed the trial. The district court denied S.B.-N.’s motion on the day set for trial,

January 14, 2020. Later that day, the district court adjourned the bench trial to

February 10, 2020, because the Department’s caseworker and the children’s guardian ad litem

were unavailable. For reasons that are unclear from the record, the trial did not resume until

August. I presume that the district court took judicial notice of its docket when resetting the case

and that it did not have any earlier availability. See In re Williams, 378 S.W.3d 503, 506 (Tex.

App.—Houston [14th Dist.] 2012, orig. proceeding) (“[W]e presume that the trial court took

judicial notice of its own docket, even without any request being made and without any

announcement by the trial court that it was taking such judicial notice.”). It is reasonable to infer

that a jury trial could begin no earlier than February 10, 2020. This would leave little time for

the trial because the mandatory dismissal date was February 17, 2020. See Tex. Fam. Code

§ 263.401(a), (c) (requiring Department to prosecute suit affecting parent-child relationship

within twelve-month period and allowing one 180-day extension).1

Second, there is evidence that granting the jury request would have prejudiced the

Department. The Department’s counsel indicated at the hearing that they planned to try the case

to the bench and that they did not have “a lot of time” to conduct a jury trial before the automatic

dismissal. The Department’s plans were reasonable—there is no scheduling order in the record

setting the case for a jury trial. Moreover, delaying the trial put the Department under time

constraints that essentially left it no room for any delays in scheduling the trial. This is sufficient

harm to the interests of an adverse party to support the district court’s ruling. See In re

A.L.M.-F., 593 S.W.3d at 283.

1 I note the district court had already granted a 180-day extension on L.C.’s motion. 3 Third, the record also reflects that delaying the trial would not be in the children’s

best interest. See S.B. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00373-CV,

2020 WL 7414728, at *2 (Tex. App.—Austin Dec. 18, 2020, no pet.) (mem. op.) (considering

whether delay associated with request for jury trial would harm children’s best interest). The

majority argues that there was no concrete evidence that delaying the trial would harm the

children. Although there was no argument to that effect at the hearing, we can infer the risk from

the record. And, in an abuse-of-discretion review, we must resolve inferences in favor of the

trial court’s ruling. See Abuzaid v. EFYU JO, L.L.C., No. 05-17-00976-CV, 2018 WL 2749640,

at *3 (Tex. App.—Dallas May 31, 2018, no pet.) (mem. op.) (“When reviewing the trial court's

order in a proceeding reviewed for an abuse of discretion, the appellate court indulges all

reasonable inferences in favor of the trial court’s ruling.” (citing INEOS Grp. Ltd. v. Chevron

Phillips Chem. Co., 312 S.W.3d 843, 848 (Tex. App.—Houston [1st Dist.] 2009, no pet.))). The

Department’s involvement with L.C.’s son, Kevin, dates to 2014, and the allegations against

her are serious. The Department could refile the case after dismissal, but it could not retain

custody of the child “without alleging new facts to support the termination.” See In re K.Y.,

273 S.W.3d 703, 708 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Under these

circumstances, the district court could reasonably consider Kevin’s interest in having the

Department’s claim promptly adjudicated rather than subject him to more uncertainty while the

Department attempted to conduct a jury trial in the brief time before the dismissal deadline. See

In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (discussing child’s “interest in a final decision on

termination so that adoption to a stable home or return to the parents is not unduly prolonged”).

In sum, the record includes evidence that granting S.B.-N.’s jury request would

delay the trial, disrupt the district court’s docket, and would not serve the best interest of at least

4 one of the children. “The right to jury trial is one of our most precious rights,” General Motors

Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997), and should not be denied lightly. However, I

cannot conclude on this record the district court failed to abide by guiding rules and principles in

denying S.B.-N.’s jury request. Because there was no abuse of discretion, I respectfully dissent.

__________________________________________ Edward Smith, Justice

Before Chief Justice Byrne, Justices Baker and Smith

Filed: March 26, 2021