In re Interest of P.N.T.
| Decision Date | 11 June 2019 |
| Docket Number | NO. 14-18-01115-CV,14-18-01115-CV |
| Citation | 580 S.W.3d 331 |
| Parties | In the INTEREST OF P.N.T., a Child |
| Court | Texas Court of Appeals |
Donald M. Crane, Katy, TX, Juliane Crow, Houston, TX, for Appellant.
Robert J. Hazeltine-Shedd, Houston, TX, for Appellee.
William B. Connolly, Houston, TX, for Intervenor.
Panel consists of Justices Christopher, Bourliot, and Zimmerer.
This accelerated appeal arises from a final decree in a suit in which termination of the parent-child relationship was at issue. Tex. Fam. Code Ann. § 109.002(a-1). The child is Paige.1 The appellants are her mother (K.M.), father (C.T.), and paternal grandparents (intervenors C.T. and F.T.). The trial court terminated Mother's and Father's parental rights and appointed the Texas Department of Family and Protective Services (the Department) to be Paige's managing conservator.
Grandparents raise three issues: (1) the trial court lost jurisdiction and should have dismissed the case; (2) the trial court erred in denying them a jury trial; and (3) the trial court erred in appointing the Department, rather than them, as Paige's conservator. Mother and Father both challenge the evidentiary sufficiency to support termination; neither challenges the trial court's decision on conservatorship.
We begin with the procedural issues raised by Grandparents. First, they did not preserve error regarding dismissal of the case. Any error in failing to dismiss this case would have resulted in only a voidable judgment, not a void judgment, so their failure to preserve error is dispositive of that issue. Second, the trial court did not abuse its discretion in denying Grandparents a jury trial because they did not timely demand a jury trial.
Next, we turn to the substantive issues. Sufficient evidence supports the trial court's findings that (1) Mother and Father endangered Paige, and (2) termination of their parental rights is in Paige's best interest. Grandparents have not shown the trial court abused its discretion in appointing the Department as Paige's managing conservator.
Therefore, we affirm the trial court's decree.
In their first issue, Grandparents contend the trial court should have dismissed the suit under section 263.401 of the Family Code, the statute that sets the deadline to begin trial in a termination case.
The version of section 263.401 that governs this case2 states in relevant part:
(a) Unless the court has commenced the trial on the merits or granted an extension under Subsection (b) or (b-1), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court shall dismiss the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child.
Act of May 29, 2015, 84th Leg., R.S., ch. 944, § 38, sec. 263.401, 2015 Tex. Sess. Law Serv. 3268, 3283 (). In plain English: with certain exceptions, the deadline to begin trial of a termination case is the Monday following the first anniversary of the day the trial court appointed the Department as the child's temporary managing conservator. A party who seeks to enforce the one-year deadline must file a motion to dismiss before a trial on the merits commences. Act of May 27, 2007, 80th Leg., R.S., ch. 866, § 3, sec. 263.402(b), 2007 Tex. Sess. Law Serv. 1837, 1838 ().3
The trial court appointed the Department as Paige's temporary managing conservator on August 22, 2017.4 Trial began on July 26, 2018, less than one year later. Accordingly, dismissal was not required because the trial began timely under section 263.401(a).
On appeal, Grandparents contend trial did not really begin until October 22, 2018. They assert the proceeding on July 26, 2018 was a sham trial, conducted solely to circumvent the 12-month deadline. They filed a motion to dismiss on October 16, 2018. If trial did not begin until October 22, 2018, they say, then their motion to dismiss was timely under section 263.401(b)(2), and the judgment is void.
We first consider whether the trial court's alleged error in not dismissing the case rendered the judgment void or merely voidable. "[A] judgment is void only when it is shown that the court had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court." Browning v. Placke , 698 S.W.2d 362, 363 (Tex. 1985). The dismissal dates in the version of section 263.401 applicable to this case are not jurisdictional.
In re Dep't of Family & Protective Servs. , 273 S.W.3d 637, 641–42 (Tex. 2009) (orig. proceeding). A judgment is not void merely because it was made after the dismissal dates in that version of section 263.401.
If a judgment is merely voidable, challenges to that judgment are subject to the rules for preservation of error. See Roccaforte v. Jefferson Cty. , 341 S.W.3d 919, 923 (Tex. 2011). To preserve a complaint for appellate review, the record must show (1) the complaint was made to the trial court by a timely and sufficiently specific request, objection, or motion, and (2) the trial court either ruled on the request, objection, or motion, or the trial court refused to rule and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a). We assume for the sake of argument that Grandparents' motion was timely. The record does not reflect that the trial court ruled on the motion, nor does it reflect that Grandparents sought a ruling but the trial court refused to rule. Grandparents did not mention the motion to dismiss when trial resumed on October 22. Based on these facts, we conclude Grandparents have not preserved error regarding dismissal. We overrule their first issue.
Grandparents next contend the trial court erred in denying their request for a jury trial. We review the trial court's denial of a jury demand for an abuse of discretion. In re A.L.M.-F. , No. 17-0603, ––– S.W.3d ––––, 2019 WL 1966623, at *8 . A trial court abuses its discretion when its decision is arbitrary, unreasonable, and without reference to guiding principles. Id. We examine the entire record in our review. Mercedes-Benz Credit Corp. v. Rhyne , 925 S.W.2d 664, 666 (Tex. 1996).
The right to a jury trial is guaranteed by the Texas Constitution. Tex. Const. art. I, § 15 (). The existence of a substantive right is distinct from the procedures constitutionally required to protect that right. A.L.M.-F. , 2019 WL 1966623, at *8. Demand for a jury trial in a civil case is governed by Texas Rule of Civil Procedure 216. The rule requires both a written request and, unless otherwise provided by law, payment of a fee. See Tex. R. Civ. P. 216. The written request must be filed a reasonable time before the date set for trial on the non-jury docket, but not less than 30 days in advance. Tex. R. Civ. P. 216(a).
Grandparents filed a written jury demand and paid the jury fee on July 24, 2018. Trial was set to begin two days later, on July 26. Grandparents did not comply with rule 216(a) because they did not make their request at least 30 days in advance of the trial setting. Accordingly, the trial court did not abuse its discretion in denying their request for a jury trial.
Similar to their claim for dismissal, in which they argued the July 26 trial was a sham, Grandparents contend the trial setting for July 26 was also a sham. For that reason, they say, their jury request was timely under rule 216 because it was made more than 30 days in advance of the real trial setting of October 22. Accepting their contention as true only for the sake of argument, we nevertheless conclude Grandparents did not preserve error. To preserve a complaint about the denial of a jury trial, the complaining party must object when the trial court proceeds with a bench trial. In re K.M.H. , 181 S.W.3d 1, 16 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (supp. op. on reh'g). Grandparents did not object to the trial court's conducting a bench trial. Therefore, they did not preserve any error in the denial of a jury trial. We overrule their second issue.
We now turn Mother's and Father's challenges to termination and Grandparents' challenge to conservatorship.
The following witnesses testified at trial: Department investigative caseworker Shaun Santiago; two deputy sheriffs from Montgomery County, Troy Moseley and Cody Lowry; Paige's therapist, Diane Vines; the psychologist who evaluated Paige, Andrew Brams, Ph.D.; Father's therapist, Kelly Landry; Mother; Father; Grandmother; Grandfather; Department conservatorship caseworker Victoria Palmer; Paige's guardian ad litem, Susan Arredondo; Father's common-law wife, Dana; child welfare and placement expert Lisa McCartney; and Paige's foster mother.
The exhibits admitted into evidence without objection include: Santiago's pretrial removal affidavit; photos of Paige; Paige's medical records; criminal records concerning Mother's boyfriend, Luke, who was accused of causing the injuries to Paige that began this case; Paige's educational records; documentation regarding Mother's and Father's attendance and completion of parenting classes; records from one of Father's therapists; police records regarding Father; drug and alcohol test results for Grandparents; Grandmother's medical records; the Department's report of Grandparents' home study; photos of Grandparents' home; and a status report by the Department. On the Department's request and without objection from the other parties, the trial court took judicial notice of all the orders in this case. Admitted over Mother's and Father's...
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