in the Interest of T.A.G., J.Y.G., and N.J.G., Children ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00565-CV
IN THE INTEREST OF T.A.G., J.Y.G., and N.J.G., Children
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2020PA00099
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: May 19, 2021
AFFIRMED
J.G. (“Father”) appeals the trial court’s order terminating his parental rights to the children
who are the subject of this suit. He argues the evidence is legally and factually insufficient to
support the trial court’s findings as to the existence of a predicate ground under Texas Family
Code section 161.001(b)(1) and that termination is in the children’s best interest. Father also
challenges the conservatorship finding. We affirm.
BACKGROUND
This case concerns three children: T.A.G., who was 14 at the time of trial in November
2020; J.Y.G., who was 12; and N.J.G., who was 10. On January 14, 2020, the Texas Department
of Family and Protective Services (the “Department”) filed a petition to terminate Father’s parental
rights. The petition lists Father as the presumed father of J.Y.G. and N.J.G. and the alleged father
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of T.A.G. The Department also sought termination of the parental rights of the mother of the
children (“Mother”). In November 2020, the trial court held a trial via Zoom and issued an order
terminating the rights of Mother and Father. Only Father appeals.
A Department investigator testified that the children came into the Department’s care
following intakes alleging that Mother was using illegal substances, did not have the children in
school, had the children stealing, and that Mother had been arrested for possession of
methamphetamine. According to the investigator, Father was rarely in contact with the children
and did not have a home for the children to live in. At the time the investigation began, J.Y.G.
was living with her paternal grandmother and was in school. The other children, N.J.G. and
T.A.G., were living with Mother, had been living in hotels, and had not been in school for over a
year. According to the investigator, J.Y.G. stated that her parents were using drugs. The
investigator testified that, at the time of the investigation, she had concerns with Mother’s and
Father’s drug use and not having stable housing.
The Department’s caseworker testified that she had concerns for the children because the
parents stopped visiting or participating in any services. Following the removal of the children,
the Department created a service plan for Father. As part of this court-ordered plan, Father was
required to complete a drug assessment and attend parenting classes. The caseworker reviewed
the plan with Father, and Father signed it. However, Father did not complete any of the services
his plan required of him.
The caseworker testified that T.A.G. stated there was not enough food to eat sometimes.
She also testified that Father stated he was self-employed as a contractor, but he never provided
proof of his job or earnings and did not secure housing at any point throughout the case. According
to the caseworker, at the time of trial, Father had not had any contact with the children since April
3, 2020. She stated that the children told her they were concerned about Father because they had
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not heard from him, except for the occasional texts or calls their grandmother told them about.
The caseworker testified that she does not believe it is in the best interest for the children to return
to Father because Father had not met the children’s basic needs by providing adequate food,
shelter, or education to them. The caseworker also testified that she remained concerned about
Father’s drug activity because Father has failed to complete any drug tests.
Father testified that, at the commencement of the case and at the time of trial, he did not
have housing. He further testified that he could not complete his parent-child visitations or
parenting classes due to the COVID-19 pandemic, which removed visits and classes to a virtual
environment. Father did not own a computer; he only had a cellular telephone. According to
Father, he could not meet virtually with the children on his phone due to poor service and inability
to see them on the camera. Father testified that he had not completed any of the services he was
ordered to complete on the service plan.
At the time of trial, the children were placed with their paternal grandmother and were
thriving. According to the investigator, the placement met all the children’s needs and there were
no barriers to the paternal grandmother adopting the children.
Based on this evidence, the trial court ordered the termination of Mother’s and Father’s
parental rights to T.A.G., J.Y.G., and N.J.G. pursuant to section 161.001 of the Texas Family Code.
The order also appointed the Department as managing conservator of the children. Father timely
appealed.
STANDARD OF REVIEW
A parent-child relationship may be terminated only if the trial court finds by clear and
convincing evidence one of the predicate grounds enumerated in section 161.001(b)(1) of the
Family Code and that termination is in a child’s best interest. TEX. FAM. CODE ANN.
§ 161.001(b)(1), (2). Clear and convincing evidence requires “proof that will produce in the mind
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of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established.” Id. § 101.007. We review the legal and factual sufficiency of the evidence under the
standards of review established by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266–
67 (Tex. 2002). Under a legal sufficiency review, we must “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.” Id. at 266. “[A] reviewing court must assume
that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do
so.” Id. Under a factual sufficiency review, we “must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing.” Id. “If, in light of the entire
record, the disputed evidence that a reasonable factfinder could not have credited in favor of the
finding is so significant that a factfinder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” Id.Under both standards, “[t]he trial court is the sole judge of the weight and credibility of the
evidence[.]” In re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio
Jan. 30, 2017, no pet.) (mem. op.). We “must give due deference to a jury’s factfindings . . . and
should not supplant the jury’s judgment with [our] own.” In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (per curiam).
PREDICATE GROUNDS
The trial court found the Department had proved statutory ground section
161.001(b)(1)(O). Subsection (O) allows for termination of parental rights if the trial court finds
by clear and convincing evidence that the parent has “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 the result of the child’s removal from the parent
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under Chapter 262 for the abuse or neglect of the child.” See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(O); see also id. §§ 262.001–.352. Father argues the evidence as to this finding is
insufficient because it is conclusory and requires the court to make inferences instead of
conclusively demonstrating that he failed to complete his service plan. According to Father, he
attempted to comply with the requirements of his service plan but was unable to do so because the
COVID-19 pandemic required all services to be conducted virtually, which posed difficulties for
him.
The court approved Father’s service plan and ordered compliance with its terms. Father
signed the service plan, and the trial court took judicial notice of its requirements. The service
plan required Father to: (1) maintain stable housing and employment; (2) complete parenting
classes; (3) complete a scheduled drug assessment, including participation in random urine
analysis and hair-follicle drug testing; (4) submit to a psychological evaluation; and (5) build a
support network to assist him in caring for the children.
The evidence shows Father did not complete any of the court-ordered services, which
provides a basis for termination under subsection O. See In re I.L.G., 531 S.W.3d 346, 355–56
(Tex. App.—Houston [14th Dist.] 2017, pet. denied). Father was required to complete a drug
assessment, which included submitting to random urine analysis and hair-follicle drug testing.
Father did not submit to any of the required drug tests. Father testified he did not attend because
he was out of town on the date of his first scheduled appointment and arrived at the drug testing
site too late. Father stated that he tried to attend his drug testing two more times but was unable
to do so.
Additionally, the service plan mandated that Father participate in parenting classes, and the
evidence shows that Father did not complete his parenting classes. Father testified that he
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attempted to begin the parenting classes via Zoom, but that he could only call in; however, video
participation was required.
Furthermore, the service plan required Father to maintain stable housing and income, and
to show proof of such income. The evidence shows that Father neither maintained stable housing
nor showed proof of income. Father did not have a home when the case began, and he testified
that he did not have housing at the time of trial. Father testified that he was self-employed as a
contractor, but he failed to provide any proof of his income, such as paycheck stubs or receipts of
payments.
Father argues that he could not complete his services because of the requirements for
virtual participation that were imposed during the COVID-19 pandemic. He contends he did not
have a computer and his phone only allowed him to participate on Zoom conferences with audio
and not also with video. While Father’s testimony, if credited, could excuse his failure to complete
parenting classes, the testimony does not explain or excuse Father’s failure to complete his
mandated drug assessment or the requirement of his service plan that he maintain stable housing
and income. Evidence of Father’s failure to complete his drug assessment and show proof of stable
housing and employment, as ordered by the trial court, is legally and factually sufficient evidence
to support the subsection O finding. See In re Z.M.M., No. 04-18-00099-CV, 2019 WL 4805399,
at *5 (Tex. App.—San Antonio Oct. 2, 2019, no pet.) (mem. op.) (holding that evidence of one
unexcused violation of a trial court’s order was sufficient to support the trial court’s subsection O
finding); see also In re S.J.R.-Z., 537 S.W.3d 677, 690 (Tex. App.—San Antonio 2017, pet. denied)
(“Texas courts generally take a strict approach to subsection (O)’s application.” (quoting In re
C.A.W., No. 01-16-00719-CV, 2017 WL 929540, at *4 (Tex. App.—Houston [1st Dist.] Mar. 9,
2017, no pet.) (mem. op.))).
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Reviewing the evidence under the applicable standards, we conclude the evidence is legally
and factually sufficient to support the trial court’s finding that Father failed to comply with the
provisions of a court order establishing the actions necessary for him to obtain the return of his
children. See TEX. FAM. CODE ANN. § 161.001(1)(O). Having concluded the evidence is sufficient
to support the trial court’s finding under subsection O, we need not review the sufficiency of the
evidence to support the subsection N finding. See In re A.R.R., No. 04-18-00578-CV, 2018 WL
6517148, at *1 (Tex. App.—San Antonio Dec. 12, 2018, pet. denied) (mem. op.) (explaining that
an appellate court can affirm on any one predicate ground when also finding that termination is in
a child’s best-interest).
BEST INTEREST
Father also challenges the legal and factual sufficiency of the trial court’s best interest
finding. See TEX. FAM. CODE ANN. § 161.001(b)(2). There is a strong presumption that keeping
a child with a parent is in a child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per
curiam). However, it is equally presumed that “the prompt and permanent placement of the child
in a safe environment is . . . in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a). In
determining whether a child’s parent is willing and able to provide the child with a safe
environment, we consider the factors set forth in Texas Family Code section 263.307(b). See id.
§ 263.307(b).
Our best interest analysis is also guided by consideration of the non-exhaustive Holley
factors. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors include: (1)
the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any present
or future emotional and physical danger to the child; (4) the parental abilities of the individuals
seeking custody; (5) the programs available to assist the individuals seeking custody to promote
the child’s best interest; (6) the plans for the child by the individuals or agency seeking custody;
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(7) the stability of the home or proposed placement; (8) the parent’s acts or omissions which may
indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent’s
acts or omissions. See id.; accord In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013). The
Department is not required to prove each factor, and the absence of evidence regarding some of
the factors does not preclude the factfinder from reasonably forming a firm conviction that
termination is in a child’s best interest, particularly if the evidence is undisputed that the parent-
child relationship endangered the safety of the child. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
The focus of our review is whether the evidence, as a whole, is sufficient for the trial court to have
formed a firm conviction or belief that termination of the parent-child relationship is in the best
interest of the child. Id. Evidence supporting the termination of parental rights under subsection
161.001(b)(1) is also probative of best interest. Id. at 28.
Here, the trial court’s finding is supported by legally and factually sufficient evidence. The
evidence shows Father did not comply with his service plan requirements. The caseworker
testified, and Father agreed, that he failed to complete any of his court ordered services. See In re
A.M.S., No. 04-18-00973-CV, 2019 WL 2194067, at *6 (Tex. App.—San Antonio May 22, 2019,
no pet.) (mem. op.) (“A parent’s non-compliance with the court-ordered service plan is probative
with regard to a best interest determination.”); see also In re I.L.G., 531 S.W.3d at 355–56
(pointing out that a parent’s failure to comply with a court ordered service plan goes to the best-
interest determination); TEX. FAM. CODE ANN. §§ 263.307(b)(10), (11). The investigator testified
that Father failed to seek assistance on how to navigate his services virtually and that some
programs, such as the one for his parenting classes, indicated they would have assisted Father if
he had requested it. See TEX. FAM. CODE ANN. § 263.307(b)(10), (11) (providing courts may
consider willingness and ability of the child’s family to seek out, accept, and complete counseling
services and willingness and ability of the child’s family to effect positive environmental and
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personal changes within a reasonable period of time); In re A.N., No. 04-19-00584-CV, 2020 WL
354773, at *4 (Tex. App.—San Antonio Jan. 22, 2020, no pet.) (mem. op.) (“A fact finder may
infer from a parent’s failure to take the initiative to complete the services required to regain
possession of h[er] child that [s]he does not have the ability to motivate h[er]self to seek out
available resources needed now or in the future.” (quoting In re J.M.T., 519 S.W.3d 258, 270 (Tex.
App.—Houston [1st Dist.] 2017, pet. denied))). Based on this testimony, the trial court could have
reasonably determined that Father’s failure to comply with his service plan requirements indicates
that he did not have the motivation or willingness to take advantage of the services offered to him
by the Department, casting doubt on his parenting abilities. See In re I.L.G., 531 S.W.3d at 355–
56; see also TEX. FAM. CODE ANN. § 263.307(b)(10), (11); Holley, 544 S.W.2d at 371–72.
The Department also presented evidence that Father had not had any contact with the
children, other than several texts and phone calls through their paternal grandmother, since April
2020. A parent’s lack of contact with the child supports a best interest finding. See In re R.A.G.,
545 S.W.3d 645, 654 (Tex. App.—El Paso 2017, no pet.).
Father’s service plan required him to provide proof of employment and stable housing,
which Father did not provide. See In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied) (“A child’s need for permanence through the establishment of a stable,
permanent home has been recognized as the paramount consideration in a best interest
determination.” (internal citation omitted)); see also In re K.J.G., No. 04-19-00102-CV, 2019 WL
3937278, at *5 (Tex. App.—San Antonio Aug. 21, 2019, pet. denied) (mem. op.) (considering a
parent’s failure to obtain and maintain stable housing supportive of the trial court’s best interest
finding because the parent’s conduct subjected her children to a life of uncertainty and instability).
According to the testimony, when the case began, Father did not have housing, J.Y.G. was living
with her paternal grandmother, and N.J.G. and T.A.G. were living in hotels with Mother. At the
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time of trial, Father testified that he did not have housing and, when asked where he lived, he stated
he was “between places.” While Father stated that he was self-employed as a contractor and would
give money to his mother, whom the children were living with, the caseworker testified that Father
failed to provide proof of any income or employment. See In re D.M.H., No. 04-19-00034-CV,
2019 WL 2518170, at *2 (Tex. App.—San Antonio June 19, 2019, no pet.) (mem. op.) (affirming
best-interest determination and noting as to stability that the evidence included testimony that an
unemployed parent relied on charitable organizations and family to pay her rent and living
expenses).
Finally, the Department presented evidence that the children were thriving in their
placement with their paternal grandmother. The caseworker testified that the children’s paternal
grandmother has provided for all of the children’s needs, ensured that they were in school, and
provided a safe environment for them. See Holley, 544 S.W.2d at 372 (considering plans for
children by those seeking custody in best interest analysis); see also TEX. FAM. CODE ANN.
§ 263.307(b)(5) (providing that a court may consider whether the child is fearful of living in or
returning to the child’s home).
After reviewing the evidence in the light most favorable to the trial court’s finding, we
conclude a reasonable factfinder could have formed a firm belief or conviction that termination of
Father’s parental rights was in the best interest of T.A.G., J.Y.G., and N.J.G. In re J.F.C., 96
S.W.3d at 266. Moreover, after reviewing all the evidence, we conclude the evidence contrary to
the trial court’s finding is not so significant that a factfinder could not have formed a firm belief
or conviction in favor of that finding. Id. Therefore, we hold the evidence is legally and factually
sufficient to support the trial court’s finding that termination of Father’s parental rights was in the
children’s best interest. See TEX. FAM. CODE. ANN. § 161.001(b)(2).
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CONSERVATORSHIP
We review the trial court’s appointment of a nonparent as sole managing conservator for
an abuse of discretion, and we will reverse that appointment only if we determine it is arbitrary or
unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Having determined the evidence is
legally and factually sufficient to support the termination of Father’s parental rights, we further
hold the trial court did not abuse its discretion in appointing the Department as the managing
conservator of the children. See In re L.G.R., 498 S.W.3d at 207 (concluding no abuse of discretion
in conservatorship finding where the evidence was sufficient to support termination of parental
rights). We overrule Father’s issue as to the conservatorship finding.
CONCLUSION
We affirm the trial court’s order.
Rebeca C. Martinez, Chief Justice
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