In the Interest of M.A., No. 14-05-00579-CV (Tex.App.- Houston [14th Dist.] Oct. 4, 2007)(Opinion by Justice Mirabal)(termination)(Before Justices Anderson, Frost and Mirabal)
Appeal from 313th District Court of Harris County
Disposition: AFFIRMED IN PART; REVERSED & REMANDED IN PART
M E M O R A N D U M O P I N I O N
After a bench trial, the trial court terminated the parental rights of the mother and father of M.A., who was 22 years old at the time of trial. The maternal grandfather of M.A. (the grandfather) was named sole managing conservator. The mother appeals, complaining that reversible error was committed when she was denied a jury trial, and raising sufficiency of the evidence issues as to termination and conservatorship. Applying controlling principles of law set out in Texas Supreme Court and Fourteenth Court of Appeals cases, we reverse and remand.
On May 27, 2003, the Texas Department of Protective and Regulatory Services (TDPRS) filed, against M.A.’s mother and father, an "Original Petition for Protection of A Child, for Conservatorship, and for Termination in Suit Affecting The Parent Child Relationship." The grandfather subsequently filed a "Petition in Intervention for Conservatorship" seeking termination of the mother’s and father’s parental rights and the appointment of himself, the grandfather, as the sole managing conservator of M.A. At the initial hearing in the case, the grandfather was named Temporary Possessory Conservator of M.A., and TDPRS was named Temporary Managing Conservator.
On October 13, 2004, the mother filed a Request for Jury Trial, and on October 14, 2004, the mother paid the jury fee.
On the trial date, November 17, 2004, the grandfather filed a handwritten "Motion to Quash Request for Jury Trial." The Associate Judge granted the motion, denied the mother’s request for a jury trial, and immediately proceeded with a bench trial. After two days of testimony, the Associate Judge ruled that the parental rights of the mother and father were to be terminated, and designated the grandfather as permanent managing conservator. The Presiding Judge affirmed the rulings of the Associate Judge.
The mother alone has appealed. The grandfather filed an appellee’s brief on appeal. No brief was filed on behalf of TDPRS.
I. Right to Jury Trial
In her fifth issue, the mother asserts the trial court committed reversible error by denying her a jury trial after she had timely requested and paid for a jury trial.
A. Standard of Review
A trial court’s denial of a party’s demand for a jury trial is reviewed under an abuse of discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). We are required to review the entire record. Id. The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
B. Jury Demands in Civil Cases
"The right to a jury trial is one of our most precious rights, holding >a sacred place in English and American history.’" Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997) (quoting White v. White, 108 Tex. 570, 196 S.W. 508, 512 (1917)). With regard to civil cases, Rule 216 of the Texas Rules of Civil Procedure provides:
a. Request. 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 thirty days in advance.
b. Jury Fee. Unless otherwise provided by law, a fee . . . must be deposited with the clerk of the court within the time for making a written request for a jury trial. . . . Tex. R. Civ. P. 216.
The mother filed her request for a jury trial, and paid the jury fee, more than thirty days prior to trial. 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); In re J.N.F., 116 S.W.3d 426, 436 (Tex. App.-Houston [14th Dist.] 2003, no pet.). A party may rebut the presumption by showing that the granting of 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. Such evidence must appear in the record. In re J.N.F., 116 S.W.3d at 436.
C. The Trial Court Erred
The record of the pretrial hearing regarding the mother’s request for a jury trial shows the following:
$ The mother’s counsel advised the court that she filed the request for a jury trial more than thirty days before the trial date, and the mother wanted to proceed with the jury trial on that day.
$ The attorney ad litem for the child, M.A., did not object to a jury trial, stating, "Pull a panel
over, we’ll start."
$ The attorney for the father stated, AI have no problem with a court trial, jury trial, whatever they want. It doesn’t matter to me."
$ The attorney for the TDPRS expressed no objection to the case proceeding with a jury trial on that day.
$ The attorney for the grandfather tendered to the court for filing a handwritten "Motion to Quash Request for Jury Trial." He told the court that he had received notice on November 2 (15 days before trial) that the mother had requested a jury trial. He did not state he was not prepared that day for a jury trial, but rather claimed "injury" would result to the parties, and the court’s docket would be disrupted, if there was a continuance of the trial date. He further opined that "if a [jury request] is timely filed with proper service . . . it will impede the ordinary handling of the court’s business," again addressing the effect of a continuance, not the effect of a jury trial that day.
From this record, we conclude there is no evidence rebutting the presumption that the mother’s request for a jury trial was made a reasonable time before trial. There is no evidence that proceeding with the jury trial on that day, November 17, would have (1) operated to injure the adverse party, (2) disrupted the court’s docket, or (3) impeded the ordinary handling of the court’s business. Accordingly, the trial court abused its discretion in denying the mother’s request for a jury trial. See Halsell, 810 S.W.2d at 371-72.
D. Error Was Harmful
A refusal to grant a jury trial is harmless error only if the record shows that no material issues of fact exist and an instructed verdict would have been justified. See Halsell, 810 S.W.2d at 372; In re J.N.F., 116 S.W.3d at 437.
In the present case, there was a great deal of conflicting evidence regarding the extent of the mother’s continued drug use, her ability to provide for her child, and whether she or the grandfather would be the better caretaker of M.A. We note that up until about one month before trial, the TDPRS consistently indicated that it was in favor of M.A. being reunited with the mother.
The conflicting evidence clearly raised fact issues so that an instructed verdict terminating the mother’s parental rights, and naming the grandfather the sole permanent managing conservator would not have been justified. See In re M.N.V., 216 S.W.3d 833, 835 (Tex. App.-San Antonio 2006, no pet.) (holding that testimony from terminated parent that she did not want her rights terminated, and evidence that she had in part completed her family service plan were sufficient to present material issues of fact as to the best interest determination, even in light of evidence of prior drug abuse); In re J.C., 108 S.W.3d 914, 917 (Tex. App.-Texarkana 2003, no pet.) (holding that terminated parent’s testimony that termination would not be in best interest of the child was sufficient to defeat a motion for instructed verdict).
Accordingly, we conclude that the trial court’s refusal to grant a jury trial amounted to harmful error. Therefore, we sustain issue five.
II. Legal Sufficiency of the Evidence
In other issues in her brief, the mother attacks the legal and factual sufficiency of the evidence to support the termination of her parental rights and the sole managing conservator appointment. It is not necessary to address the factual sufficiency challenge, which would require a remand if sustained, because our disposition of issue five above requires a remand. See Gemoets v. State, 116 S.W.3d 59, 65 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (stating that the appropriate remedy for reversal on a factual sufficiency issue is remand for a new trial). We address the legal sufficiency of the evidence complaint.
A. Standard of Review
In order to terminate parental rights, the State must prove both that the parent has committed one of the enumerated acts worthy of termination, and that termination of parental rights is in the best interest of the child. See Tex. Fam. Code § 161.001. The burden of proof at trial is clear and convincing evidence. Id. Clear and convincing evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Id. § 101.007.
When reviewing the legal sufficiency of the evidence under this standard, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The reviewing court assumes that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. A court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. If a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude the evidence is legally insufficient. Id.
The Texas Supreme Court has enumerated a list of factors that may be considered by courts in ascertaining the best interest of the child. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child’s best interest. See In re C.H., 89 S.W.3d 17, 27-8 (Tex. 2002).
B. Evidence Is Legally Sufficient to Show the Mother Committed an Act that is Ground for Termination
We note that the mother no longer lives with M.A.’s father. However, there is evidence that while the mother was in Austin living with M.A.’s father, she knowingly allowed M.A. to remain in conditions or surroundings that endangered M.A.’s physical and emotional well-being. The evidence includes the following: the mother and M.A.’s father used crack/cocaine on a daily basis with M.A. in the house; M.A.’s father was regularly verbally and physically abusive toward the mother; M.A.’s father threatened the mother that he would hurt or kill M.A., yet M.A.’s father was M.A.’s caretaker while the mother was at work; M.A. had bruises and scratches and burn marks on her when she was placed with the grandfather, which the mother said must have been caused by M.A.’s father. We conclude the foregoing constitutes legally sufficient evidence to support the finding that the mother had knowingly allowed M.A. to remain in conditions or surroundings which endangered M.A.’s physical or emotional well-being. See In re J.F.C., 96 S.W.3d at 266.
C. Evidence is Legally Sufficient to Support Finding that Termination of Parental Rights and Placement with the Grandfather is in Best Interest of Child
Although there was conflicting evidence, viewing the evidence in the light most favorable to the court’s findings we note the following evidence: M.A. was underweight and withdrawn when she came into the grandfather’s care; the mother has a volatile temperament and appears to suffer from bipolar disorder and borderline personality disorder; the mother failed or did not take several drug tests under the safety plan; the mother lives with the grandmother (who is divorced from the grandfather), and the grandmother has tested positive for drugs during the pendency of this case; the mother has missed visitation with M.A. several times since the grandfather has been possessory conservator of M.A.; the Houston social worker testified that when she stopped by the grandfather’s home to check on M.A., the house was child-friendly and M.A. appeared to be a happy and outgoing child. We conclude there is legally sufficient evidence to support a finding that the termination of the mother’s parental rights and placement with the grandfather was in the best interest of M.A. See In re J.F.C., 96 S.W.3d at 266.
Accordingly, we overrule the mother’s issues attacking the legal sufficiency of the evidence.
Because the trial court committed harmful error in denying the mother a jury trial, we reverse those portions of the judgment terminating the mother’s parental rights and naming the grandfather the sole managing conservator, and we remand to the trial court for further proceedings consistent with this opinion. We affirm the remainder of the trial court’s judgment.
/s/ Margaret Garner Mirabal, Senior Justice
Judgment rendered and Memorandum Opinion filed October 4, 2007.
Panel consists of Justices Anderson and Frost and Senior Justice Mirabal.*
*Senior Justice Margaret G. Mirabal sitting by assignment.
 The father is not a party to this appeal.
 Counsel for TDPRS did state that if the trial would be continued, then he would ask for certain measures to be taken. However, he did not object to a jury trial taking place on the current trial date, November 17.
 The grandfather argues that because he did not receive notice of the jury request at least thirty days before trial, the jury request should not get the benefit of having been filed more than thirty days before trial. This argument is contrary to Rule 216, Texas Rules of Civil Procedure, and the case law.
 However, no party had asked for a continuance of the trial on the termination of parental rights issues.
 We note that the grandfather relies on Crittenden v. Crittenden, 52 S.W.3d 768, 770 (Tex. App.-San Antonio 2001, pet. denied). However, unlike the record in Crittenden, there is an absence of proof in the present case.