In THE INTEREST OF R.J.G., R.J.G., D.G.M., CHILDREN v. the State of Texas ( 2023 )

Supreme Court of Texas
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No. 22-0451
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In the Interest of R.J.G., R.J.G., D.G.M., Children
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On Petition for Review from the
Court of Appeals for the Fourth District of Texas
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Argued September 12, 2023
JUSTICE HUDDLE delivered the opinion of the Court.
Both this Court and the Supreme Court of the United States have
long recognized the fundamental right of parents to make decisions
concerning the care, custody, and control of their children. Thus, Texas
law rightly requires that, before infringing on a parent’s right to care for
and have custody of her child, the State, usually acting through the
Texas Department of Family and Protective Services, must demonstrate
to a court that governmental intrusion is warranted. The bar is—
appropriately—highest when the State seeks a judgment effecting the
outright and permanent termination of the parent–child relationship.
The predicate grounds that the Legislature has determined
justify such a termination are recited in Family Code
Section 161.001(b)(1). All require the State to prove its case by clear and
convincing evidence, and nearly all require proof that the parent has
abandoned or endangered the child or that the parent has engaged in
specified criminal conduct. The exception is (O). Unlike the other
grounds for termination, it permits termination if a parent fails to
comply with a family service plan, which, in lay terms, is a list of tasks
the Department requires—and the trial court orders—the parent to
perform to obtain the return of a child following removal.
In this case, the Department sought termination based solely on
(O) and conceded that, although she did not comply in the precise way
the Department hoped she would, Mother complied with the plan’s
terms. Indeed, after the children were removed because she was late
picking them up from daycare one night, Mother spent a year
performing the tasks the Department and the trial court’s order told her
were required to get her children back. She attended individual
counseling, parenting classes, and substance abuse classes; stayed
drug-free; maintained a job and a clean and stable home; and stayed in
contact with her caseworker. But at trial, which was to the bench,
Mother’s caseworker (the Department’s only witness) testified that
Mother had not complied with the plan in the way the Department
wanted. The trial court concluded that it could not consider whether
Mother “substantially complied” with the plan’s requirements and thus
seemingly decided strict compliance with the written terms of the plan
(as glossed by the caseworker’s testimony) was required to avoid
termination. Concluding Mother had not satisfied that standard, the
trial court rendered a judgment of termination, which the court of
appeals affirmed.
2
In light of Section 161.001(b)’s plain text and the fundamental
rights at issue, we reject this reading of (O). To begin, the statutory text
permits termination only if the provision with which the parent failed
to comply was “specifically established” in the written court-ordered
service plan. The predicate ground for termination under (O) cannot be
proven by clear and convincing evidence if premised on a plan
requirement that is unwritten, and thus supplied only by the
caseworker’s oral testimony, or on one that is written but vague.
Moreover, even if the Department proves by clear and convincing
evidence that a parent failed to comply with a requirement “specifically
established” in the written plan, that requirement may be so trivial and
immaterial, considering the totality of what the plan requires, that the
parent’s noncompliance does not justify termination. A trial court
should not reflexively order termination when the evidence
demonstrates noncompliance with a plan requirement. Instead, the
trial court should consider whether the nature and degree of the
asserted noncompliance justifies termination under the totality of the
circumstances.
The record reflects that the trial court believed termination was
mandatory if Mother’s compliance fell short of perfect in the
Department’s eyes. It therefore seemingly did not consider the plan’s
specificity or lack thereof, nor did it consider the nature or degree of the
asserted noncompliance or Mother’s commendable progress toward
satisfying the numerous plan provisions that were more central to
achieving the Department’s goal of family reunification. Applying the
correct standards, we hold there is legally insufficient evidence to
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support termination under (O) by clear and convincing evidence.
Because (O) was the only asserted ground for termination, we reverse
and render judgment for Mother.
I. Background
Mother was nineteen years old when she gave birth to her third
child, D.M. Shortly thereafter, the Department of Family and Protective
Services opened an investigation based on a report of neglectful
supervision by Mother of her other children. About a month later,
Mother dropped her two older children at a daycare facility and failed to
pick them up before it closed at midnight. The police contacted Mother,
and she lied to them about the reason for her delay.
The Department took possession of all three children the next
day. It filed a petition seeking termination of Mother’s parental rights,
as well as the rights of the children’s alleged fathers. The trial court
signed an emergency order that named the Department the children’s
temporary managing conservator.
The Department prepared a single Family Plan of Service for both
Mother and D.M.’s father. Because the Department ultimately sought
termination based on Mother’s alleged failure to comply with this plan,
we describe it in some detail. Its overarching or “primary permanency
goal” is “family reunification” for all three children. The plan identifies
a number of joint goals Mother and D.M.’s father should accomplish to
obtain reunification: “have a stable home and employment”; “undergo
substance abuse treatment”; “sign up for parenting classes . . . so they
can acquire new skills on how to keep their children safe and maintain
hygienic conditions at home”; and “take care of all pending legal matters
4
such as past arrest[s] that might be pending.” The plan also states two
individual goals for Mother: “participate in a psychological evaluation”
and “go to MHMR for an evaluation and advise them about her
symptoms and mental health family history.”
The plan then recites issues and needs of each parent and sets
forth “required action[s]” that each agreed to take. The Department
asserts Mother failed to comply with three such requirements. 1 Under
the heading “Parenting Skills,” the plan states:
[Mother] agrees to attend, participate and successfully
complete parenting classes and submit to the Department
a certificate of completion to file with the court. . . .
Under “Coping Skills/Mental Health,” the plan says:
[Mother] has been referred to begin services with LPC Mr.
Daniel Browne. [Mother] [will] address the reason of
removal and explore healthier ways to deal and cope with
stressors of life. . . . [Mother] will also address and learn
different ways to cop[e] with her mood changes and how
[to] give her children a safe and stable environment.
[Mother] in addition will undergo individual counseling in
order to address her needs. [Mother] will also address and
1 In its briefing to this Court, the Department asserted that Mother
failed to comply with a fourth requirement that she “stay away from
friends/family that might be involved in criminal activity.” The basis for this
claim was that Mother communicated with D.M.’s father while he was
incarcerated for assaulting her. We doubt that a reasonable person would
understand a requirement to “stay away” from those involved in criminal
activity to specifically establish a requirement that Mother cease telephonic
communication with D.M.’s father, especially when the Department itself
crafted the plan jointly for them. In any event, the Department conceded at
oral argument that it did not rely on Mother’s purported failure to comply with
this provision as a basis for seeking termination in the trial court and
disclaimed reliance on it in this Court. Accordingly, we do not consider it as
an alternative ground to support the judgment.
5
find healthier ways to raise her children and work with
their family structure.
Finally, under “Substance Abuse/Use,” the plan states:
[Mother] agrees to submit to substance abuse classes at
S.C.A.N. and provide the Department with a certificate of
completion.
Mother does not dispute the contents of the plan, nor does she dispute
that the trial court ordered her to comply with it.
Mother set out to take the required classes but had difficulty
getting a response from S.C.A.N. 2 due to the onset of the COVID-19
pandemic. So the Department asked Daniel Browne, a licensed
professional counselor to whom the Department referred Mother for
individual counseling, to include parenting and substance abuse classes
as part of Mother’s individual counseling. Browne agreed, and Mother
regularly attended counseling sessions with Browne for nearly a year.
Notably, the plan was never amended to reflect this change of providers.
A year after the children’s removal, the Department filed a report
reflecting that Mother attended numerous sessions with Browne and
that she “has demonstrated adequate and appropriate compliance with
the [plan].” Yet two months later, Browne changed his mind, apparently
at the Department’s prodding: he discharged Mother and noted in his
records that she “was not able to complete services successfully.”
Browne’s records state that he believed Mother “did not show the
capacity or willingness to remove herself from violence or drug abuse
2 S.C.A.N. stands for Serving Children and Adults in Need, a services
provider located in Mother’s hometown. In addition to requiring Mother to
attend substance abuse classes at S.C.A.N., the plan identified it as the
resource for her parenting classes.
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related influences.” Mother’s caseworker’s trial testimony shed light on
this sudden change. She testified that Browne discharged Mother
because the Department informed him that Mother continued to
communicate with D.M.’s father by phone while he was in jail for
assaulting Mother. The record does not reflect that Mother had any
reason to believe communicating with D.M.’s father was prohibited
under the plan.
In the hopes of continuing to progress toward reunification,
Mother sought additional counseling after Browne discharged her. She
participated in counseling classes at Grupo Amor, where her
Department caseworker referred her. According to Mother, her Grupo
Amor classes covered “anger management, substance abuse, domestic
violence, . . . how to feed the family, and how to be a single mother.” She
testified that she completed her parenting and substance abuse classes
at Grupo Amor and her counselor gave the Department a certificate to
that effect. The caseworker denied having the certificate but admitted
that Mother “complet[ed] her family domestic violence classes” and that
those classes touched on anger management and lifestyle. Mother
continued to attend counseling sessions at Grupo Amor until shortly
before trial, when she stopped going due to her work schedule.
Mother got still more counseling, from another therapist to whom
Grupo Amor referred her. The caseworker testified that Mother
“received a recommendation,” meaning that Mother had successfully
completed this therapy. Yet the caseworker discounted it because, she
testified, the therapist did not know and did not address “the reason of
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the removal and also all the different incidents that had happened
throughout the life of the case.”
Thus, despite Mother’s sustained efforts to complete the plan and
demonstrate her desire and ability to parent, such as by seeking
counseling, staying drug-free, visiting with her children, and
maintaining employment and stable housing, the caseworker testified
at trial that Mother did not meet her plan’s requirements. Then, on
cross-examination, she conceded that Mother had complied, just not in
the way she needed to or was ordered to:
Q: Would it be fair to say she has complied; she just
hasn’t complied when the State needed her to comply or in
the way she was ordered to comply? Is that a fair
statement?
A: Yes.
The trial court found by clear and convincing evidence that
Mother failed to complete the plan. Rejecting Mother’s argument that
she presented evidence of substantial compliance, the court reasoned
that “the Family Code provides that the parent should demonstrate
completion of the service plan. . . . It doesn’t say substantially comply,
and I will not infer that as the Code does not allow me to infer that
provision.” “For that reason,” the trial court concluded, “I will go ahead
and . . . grant the termination of the parental rights between [Mother]
and the three children under the only provision of Texas Family Code
161.001(b)(1)(O).” The trial court further found that termination was in
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the children’s best interest and rendered judgment terminating
Mother’s parental rights to the three children. 3
The court of appeals affirmed, stating that Mother did not dispute
that she “failed to comply with the service plan.” ___ S.W.3d ___, 2022
WL 1158680, at *2 (Tex. App.—San Antonio Apr. 20, 2022). The
appellate court also rejected Mother’s substantial-compliance argument,
concluding that “substantial compliance with a family service plan is not
the same as complete compliance.” Id. at *3 (quoting In re J.M.S., No.
04-18-00608-CV, 2019 WL 574862, at *3 (Tex. App.—San Antonio Feb.
13, 2019, no pet.)). Mother petitioned this Court for review. 4
II. Applicable Law
A. Family Service Plans
Under the Family Code, the Department of Family and Protective
Services may remove an abused or neglected child from the home and
3 The trial court also terminated the parental rights of the fathers of all
three children. None of the fathers appealed.
4 Mother got review only after hurdling multiple obstacles, none of
which were of her making. When her court-appointed appellate counsel would
not respond to her inquiries regarding the court of appeals’ decision, Mother
traveled from Laredo to this Court to seek guidance from the clerk’s office. She
then filed a pro se request for extension of time and request for appointment
of new appellate counsel. Mother’s counsel moved to withdraw because a
petition for review “may be beyond counsel’s competence.” We abated the
appeal and remanded to the trial court to determine whether Mother was
entitled to appointment of new counsel. Due to a miscommunication in the
district clerk’s office, this Court’s order was not delivered to the trial court.
Mother called this Court multiple times asking for updates, then filed a letter
stating she had been told by someone at the trial court that it “didn’t assign
new appellate counsel” and that she tried but failed to obtain a new lawyer on
her own. Mother ultimately filed a pro se petition for review; later, the trial
court appointed a new appellate attorney. He filed an amended petition for
review, which we granted.
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seek an emergency order granting the Department temporary
possession. See TEX. FAM. CODE §§ 262.001, .102. Within forty-five days
after an order appointing the Department as temporary managing
conservator, the Department must prepare and file a service plan. Id.
§ 263.101. The service plan “shall be developed jointly by the child’s
parents and a representative of the department.” Id. § 263.103(a). It
must be written “in a manner that is clear and understandable to the
parent in order to facilitate the parent’s ability to follow the
requirements of the service plan.” Id. § 263.102(d). Among other things,
the plan must:
• be specific;
• be prepared by the Department in conference with the
parents;
• state appropriate deadlines;
• specify the primary permanency goal and at least one
alternative permanency goal;
• state the actions and responsibilities that are necessary for the
parents to take to achieve the plan goal during the period of
the service plan;
• state any specific skills or knowledge that the parents must
acquire or learn, as well as any behavioral changes the parents
must exhibit; and
• prescribe any other term or condition that the Department
determines to be necessary to the service plan’s success.
Id. § 263.102(a)(1), (3)–(5), (7), (8), (11). The parents are required to sign
the plan, and the Department is required to provide them a copy. Id.
§ 263.103(b).
10
The Family Code requires the court to hold a status hearing to
review the child’s status and the plan. Id. § 263.201(a). Among other
things, the court must review the plan for reasonableness, accuracy, and
compliance with the court’s orders. Id. § 263.202(b). After reviewing
the plan and making any necessary modifications, “the court shall
incorporate the service plan into the orders of the court and may render
additional appropriate orders to implement or require compliance with
the plan.” Id. § 263.202(b-1).
The Family Code also provides that a service plan may be
amended “at any time.” Id. § 263.104(a). But in developing any
amendment, the Department must work with the parents and inform
them of their rights in connection with the amended plan process. Id.
B. Section 161.001(b)(1)(O)
To terminate parental rights, the Legislature requires the
Department to establish by clear and convincing evidence at least one of
the predicate findings under Family Code Section 161.001(b)(1). And
regardless of which predicate it asserts to justify termination, the
Department must also prove by clear and convincing evidence that
termination is in the child’s best interest. Id. § 161.001(b)(2).
Section 161.001(b)(1) sets forth twenty-two predicate grounds for
termination. Id. § 161.001(b)(1)(A)–(V). Most involve conduct by a
parent that itself either establishes the parent’s intent to abandon the
child 5 or would place the child’s health or well-being in danger through
5 See TEX. FAM. CODE § 161.001(b)(1)(A)–(C) (voluntarily leaving the
child alone or in a non-parent’s possession and either expressing an intent not
to return or failing to provide adequate support and not returning for a
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abuse or neglect. 6 Three predicates concern conduct that demonstrates
the parent has previously engaged in dangerous actions toward a child, 7
and two concern violent conduct toward the child’s other parent. 8
The remaining two predicates permit termination for violating a
court order. Section 161.001(b)(1)(I) authorizes termination if the
parent willfully disobeys a court order that facilitates the investigation
of child abuse or neglect. 9 And Section 161.001(b)(1)(O), the only ground
specified period of time), (G) (abandoning the child with no identification), (K)
(executing an affidavit of relinquishment), (N) (constructively abandoning the
child for six months while in the Department’s conservatorship), (S)
(voluntarily delivering the child to a designated emergency infant care
provider with no expressed intent to return).
6 See TEX. FAM. CODE § 161.001(b)(1)(D), (E) (knowingly endangering
the physical or emotional well-being of the child), (F) (failing to support the
child as able for one year), (H) (voluntarily abandoning a pregnant mother and
failing to provide adequate support), (J) (being the major cause of the child’s
failure to be enrolled in school or the child’s absence from home without the
parents’ consent), (P) (using a controlled substance in a manner that endangers
the child’s health or safety), (Q) (knowingly engaging in criminal conduct
resulting in confinement and inability to care for the child for two years), (R)
(causing the child to be born addicted to alcohol or a controlled substance).
7 See TEX. FAM. CODE § 161.001(b)(1)(L) (parent has been convicted of
conduct causing death or serious injury of a child), (M) (parent had a previous
parent–child relationship terminated based on an endangerment finding
under (D) or (E)), (V) (parent has been convicted of solicitation or online
solicitation of a minor).
8 See TEX. FAM. CODE § 161.001(b)(1)(T) (parent has been convicted of
murder, attempted murder, solicitation to murder, or sexual assault of the
other parent), (U) (parent has been placed on community supervision or
probation for sexual assault of the other parent).
9 See TEX. FAM. CODE § 161.001(b)(1)(I) (authorizing termination if a
parent “contumaciously refused to submit to a reasonable and lawful order of
a court under Subchapter D, Chapter 261”). The subchapter referenced in (I)
addresses investigations of child abuse or neglect and authorizes the court to
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pressed here, permits termination if a parent fails to comply with the
requirements for reunification set forth in the service plan. The statute
provides:
The court may order termination of the parent-child
relationship if the court finds by clear and convincing
evidence:
(1) that the parent has:
...
(O) 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 who has been in the
permanent or temporary managing conservatorship of [the
Department] for not less than nine months as a result of
the child’s removal from the parent under Chapter 262 for
the abuse or neglect of the child . . . .
Id. § 161.001(b)(1)(O).
We recently explained that, as its text expressly indicates,
“[s]ubsection (O) contemplates direct, specifically required actions.” In
re A.L.R., 646 S.W.3d 833, 837 (Tex. 2022). We eschew vague plan
requirements and have emphasized that the court’s order describing the
parent’s necessary actions “must be sufficiently specific to warrant
termination of parental rights for failure to comply with it.” In re N.G.,
577 S.W.3d 230, 238 (Tex. 2019). Section 161.001(b)(1)(O) thus
authorizes termination for failure to comply with a service plan “only
when that plan requires the parent to perform specific actions.” A.L.R.,
646 S.W.3d at 838. And a finding under (O) must be established by clear
issue orders as necessary to allow that investigation to proceed. See id.
§ 261.303. No such orders exist here, so (I) is not an issue in this case.
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and convincing evidence, which the Family Code defines as “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.” TEX. FAM. CODE § 101.007.
Notably, termination is not automatic or required, even if the
Department properly proves a parent failed to comply with a specific
plan provision. See id. § 161.001(b)(1)(O) (“The court may order
termination of the parent-child relationship if the court finds by clear
and convincing evidence . . . that the parent has . . . failed to comply
. . . .” (emphasis added)). Regardless of whether a predicate ground for
termination is found by the court or a jury, the trial court bears the
ultimate responsibility for determining whether that finding supports
termination. This Court and others have recognized that it is the
violation of “material” requirements of a plan that justify termination
under (O). See In re J.F.C., 96 S.W.3d 256, 278–79 (Tex. 2002) (affirming
termination under (O) based on parents’ failure to comply with “material
provisions of the trial court’s orders”); In re T.L.B., No. 01-21-00081-CV,
2021 WL 3501545, at *6 (Tex. App.—Houston [1st Dist.] Aug. 10, 2021,
pet. denied) (affirming termination under (O) based on mother’s failure
to comply with “the material requirements of the plan”); In re A.P.,
No. 13-19-00342-CV, 2019 WL 6315429, at *7 (Tex. App.—Corpus
Christi–Edinburg Nov. 26, 2019, no pet.) (affirming termination under
(O) based on mother’s failure to comply with “material provisions of the
service plan”); In re A.D., 203 S.W.3d 407, 411–12 (Tex. App.—El Paso
2006, no pet.) (affirming termination under (O) based on mother’s failure
to comply with “material requirements” of her plan). Thus, if the
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noncompliance is trivial or immaterial in light of the plan’s
requirements overall, termination under (O) is not appropriate.
Just last term, we expressed concern that, in some cases, courts
and parties may perceive a termination case brought under (O) as
“easier to prove” because “[c]ourt-ordered service plans can be long and
detailed” and “[t]hese plans can be difficult—perhaps impossible—to
comply with fully.” In re A.A., 670 S.W.3d 520, 531 (Tex. 2023). And we
noted that “our judicial antennae are raised and attuned to potential
misuses of (O).” Id. We granted review in this case to clarify that strict
compliance with every detail of a service plan is not always required to
avoid termination under (O).
III. Analysis
Mother challenges the trial court’s finding that there is clear and
convincing evidence to support termination under
Section 161.001(b)(1)(O). More specifically, she contends there is legally
insufficient evidence that she “failed to comply with the provisions of a
court order that specifically established the actions necessary for the
parent to obtain the return” of her children. 10 TEX. FAM. CODE
§ 161.001(b)(1)(O). The trial court stated that the Family Code requires
“completion of the service plan” and does not allow consideration of
whether Mother had demonstrated “substantial compliance”:
So, it states: Failed to comply with the provisions of the
Court order. It doesn’t say substantially comply, and I will
10 Mother does not dispute that her children were in the Department’s
conservatorship for at least nine months as a result of their removal under
Chapter 262 for abuse or neglect. See TEX. FAM. CODE § 161.001(b)(1)(O).
15
not infer that as the Code does not allow me to infer that
provision.
The court of appeals affirmed, stating that Mother “does not
dispute” that she “failed to comply with the service plan.” 2022 WL
1158680, at *2. To the contrary, Mother asserted in the court of appeals,
as she does in this Court, that she complied, or at least substantially
complied, with the plan requirements in question.
We address in turn the plan requirements with which the
Department contends Mother failed to comply: individual
counseling/coping skills, substance abuse classes, and parenting classes.
A. Individual counseling/coping skills
The Department asserts that Mother failed to comply with the
plan’s requirement regarding individual counseling because she was
“unsuccessfully discharged” from her counseling sessions with Browne.
But the plan nowhere requires that Mother achieve any particular
benchmark, such as participating in a specified number of individual
sessions or passing a test of any sort. It merely states that Mother “has
been referred to begin services” with Browne, “will undergo individual
counseling in order to address her needs,” and describes topics to be
addressed:
• “[Mother] will be [sic] address the reason of removal and
explore healthier ways to deal and cope with stressors of life.”
• “[Mother] will also address and learn different ways to cop[e]
with her mood changes and how [to] give her children a safe
and stable environment.”
• “[Mother] will also address and find healthier ways to raise
her children and work with their family structure.”
16
It is undisputed that Mother “beg[a]n services” with Browne.
Indeed, the Department’s report filed with the trial court one year after
removal reflected that Mother attended numerous sessions with Browne
and that the Department regarded Mother’s counseling with Browne a
success at the time. The record also reflects that Mother participated in
additional counseling sessions at Grupo Amor and with another
therapist to whom Grupo Amor referred her. Thus, the evidence
conclusively shows Mother did “undergo individual counseling in order
to address her needs.” The Department presented no evidence that
Mother did not at least “address” identified issues of concern as part of
her counseling sessions, either with Browne or with Grupo Amor.
Because the plan contains no specific requirement that Mother attain a
particular benchmark in her individual counseling services with
Browne, the fact that she was discharged by him (apparently at the
Department’s prompting, for communications the plan did not prohibit)
after a year of successful sessions is no evidence that she failed to comply
with the plan’s “specifically established” requirements regarding
individual counseling. See A.L.R., 646 S.W.3d at 837–38 (concluding
that actions in a service plan worded as requests rather than positive
mandates cannot support grounds for termination under (O)). In short,
termination is warranted only for violations of requirements that are
“specifically established” in a service plan. TEX. FAM. CODE
§ 161.001(b)(1)(O). It is not warranted when a parent participates as
the plan requires and the Department waits until trial to reveal that it
was measuring performance against a previously undisclosed
requirement.
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B. Substance abuse and parenting classes
The plan required Mother to “attend, participate and successfully
complete parenting classes,” “submit to substance abuse classes at
S.C.A.N.,” and provide the Department with a certificate of completion
for each. Mother claimed that she could not reach anyone at S.C.A.N.
during the pandemic, so the Department agreed she should instead take
her substance abuse and parenting classes with Browne. 11 It is
undisputed that she attended those classes with Browne for nearly a
year and that she took parenting and substance abuse classes at Grupo
Amor after Browne discharged her. In contrast to the individual
counseling, the plan did specifically establish a requirement that
Mother provide the Department with “a certificate of completion” for
both her parenting and substance abuse classes.
The Department contends Mother failed to complete these classes
before she was discharged by Browne. For her part, Mother testified
that she completed the classes with Grupo Amor and that it provided a
certificate of completion to the Department. The caseworker did not
refute this. She conceded that Mother completed at least some classes
at Grupo Amor. With respect to the certificate requirement, the
caseworker testified only that she “do[es]n’t have a certificate.”
A judgment terminating parental rights is “the ‘death penalty’ of
civil cases.” In re D.T., 625 S.W.3d 62, 69 (Tex. 2021) (quoting In re
11 The plan was never amended to reflect this change in approved
service providers, so if strict compliance were the governing standard, Mother’s
attending classes with Browne instead of S.C.A.N. could justify a finding that
termination is warranted under (O). The Department wisely did not rely on
this variance as a basis for termination.
18
K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring)). A
court’s decision to impose this penalty demands more than bureaucratic
or mechanical box-checking. See In re S.M.R., 434 S.W.3d 576, 584 (Tex.
2014) (rejecting the Department’s argument that termination under (O)
was conclusively established where the evidence showed imperfect
compliance with the plan and noting that “[p]arents frequently fall short
of strict compliance with a family-service plan’s requirements”).
Terminating the parent–child relationship for the parent’s failure
to comply with a court-ordered service plan necessarily requires a
nuanced assessment of the parent’s conduct and progress toward plan
completion in light of the totality of the plan’s requirements and overall
goal. In determining whether the Department has established grounds
for termination under (O), the trial court should consider the nature and
degree of the parent’s alleged noncompliance and the materiality of the
disputed plan requirement in achieving the plan’s stated goal.
At trial, the Department asserted that Mother failed to comply
with the parenting and substance abuse provisions of her plan because
she did not provide a certificate of completion for them. The evidence
about the Department’s receipt of a certificate conflicted, with Mother
testifying that Grupo Amor submitted a certificate to the Department,
and the caseworker testifying, without explanation, only that she did
not have it. But even if the factfinder concluded this evidence
established Mother’s noncompliance with the plan by clear and
convincing evidence, by permitting rather than requiring termination
based on such a finding, Section 161.001(b) affords the trial court
discretion to determine whether the parent’s noncompliance with the
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plan was too trivial to warrant a judgment of termination on that
ground. See TEX. FAM. CODE § 161.001(b). Here, the particular act of
noncompliance in question—the failure of Mother to provide the
Department a certificate demonstrating what the caseworker concedes
she knew—is too trivial and immaterial, in light of the degree of
Mother’s compliance with the plan’s material requirements, to support
termination under (O). See, e.g., J.F.C., 96 S.W.3d at 278–79 (affirming
termination under (O) based on failure to comply with “material
provisions” of the trial court’s orders).
The Department contends that every Texas court of appeals has
concluded that (O) requires “complete compliance with a parent’s service
plan” and that “substantial compliance” is insufficient to avoid
termination. But the cases the Department cites address a different
question: whether a parent who fails to satisfy one or more material
requirements in the service plan can avoid termination under (O) merely
by showing that he complied with the plan’s other requirements. The
answer, resoundingly, is no, and that is all these cases say. In that
sense, these cases are consistent with this Court’s opinion in J.F.C.
There, we concluded that the predicate ground for termination under
(O) was established as a matter of law because it was “undisputed that
both parents failed to comply with numerous, material provisions of
court orders that specifically required their compliance to avoid
restriction or termination of their parental rights.” Id. at 277. While we
recognized there was some evidence of compliance with some plan
requirements, we held that “these sporadic incidents of partial
compliance do not alter the undisputed fact that the parents violated
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many material provisions of the trial court’s orders.” Id. at 278. In other
words, parents cannot overcome the complete failure to comply with a
material requirement by arguing that performing other requirements
constitutes substantial compliance with the plan overall. See In re
M.C.G., 329 S.W.3d 674, 676 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) (supp. op. on reh’g) (“The Family Code does not provide for
substantial compliance with a family services plan.” (emphasis added)).
There may be provisions in particular service plans for which
nothing less than strict compliance will suffice to avoid termination.
Easy examples are provisions that require a parent suffering from drug
addiction to complete a drug treatment program or require a parent just
released from prison to refrain from re-offending. Even a single or slight
violation of these or other material service plan provisions could justify
termination. But other requirements—particularly those that are
bureaucratic or technical—may be too trivial, in the larger context of the
plan and the parent’s overall performance, to have their breach give rise
to termination. Where, as here, the plan requires a parent to attend
classes with a specified service provider and the parent goes elsewhere
(with the Department’s approval), the parent’s technical noncompliance
with that requirement would not support termination under (O).
Similarly, while the completion of required parenting classes may well
be necessary to obtain a child’s return, the caseworker’s bare assertion
that she “does not have” a piece of paper proving completion of classes,
even if technically required by the plan, cannot support termination
when there is other evidence that the classes were completed. In sum,
not all service plan requirements are created equal, and strict
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compliance with every aspect of every plan requirement is not always
the standard.
Here, the trial court’s sole basis for terminating Mother’s parental
rights was its finding that she violated (O). The court essentially
concluded that strict compliance was required and that the Family Code
did not allow it to “infer” that compliance with a plan’s provisions, while
not perfect, could be sufficient to avoid termination under (O). The court
of appeals likewise rejected Mother’s argument that she substantially
complied with her plan’s requirements, relying on a general rule that
“substantial compliance with a family service plan is not the same as
complete compliance.” 2022 WL 1158680, at *3. Both reflexively
rejected Mother’s testimony and argument about the nature and degree
of her compliance and concluded her failure to achieve strict compliance
with every aspect of the plan required termination.
We hold that the lower courts erred in concluding that strict or
complete compliance is always necessary to avoid a judgment of
termination under (O). While the Department could have presented
evidence that might explain why the failure to satisfy its preferred
manner of compliance with the plan would support termination, no such
evidence appears in the record. In light of Mother’s compliance with the
material provisions of the service plan and the caseworker’s concession
that Mother complied with the plan—just not in the way that suited the
Department—we hold that there is insufficient evidence to support
termination by clear and convincing evidence under (O).
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IV. Conclusion
The trial court and the court of appeals erroneously concluded
that Mother’s failure to strictly comply with all the requirements of her
service plan required termination of her parental rights. A proper
application of (O) is less mechanical. In evaluating whether termination
is warranted, the trial court must ensure that any asserted
noncompliance is of a requirement that is neither unwritten nor vague
but rather “specifically established” in a court-ordered plan.
Additionally, to justify termination, the noncompliance must not be
trivial or immaterial in light of the nature and degree of the parent’s
compliance and the totality of the plan’s requirements. We reverse the
court of appeals’ judgment in part, and we render judgment vacating
those portions of the trial court’s Order of Termination relating to the
termination of Mother’s parental rights. The remainder of the trial
court’s termination order is affirmed.
Rebeca A. Huddle
Justice
OPINION DELIVERED: December 15, 2023
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