in the Interest of S.B., a Child ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00146-CV
IN THE INTEREST OF S.B., A CHILD
On Appeal from the 320th District Court
Potter County, Texas
Trial Court No. 91,359-D, Honorable Pamela C. Sirmon, Presiding
November 5, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
In this accelerated appeal, appellant, K.F., seeks reversal of the trial court’s
judgment terminating her parental rights to S.B.1 K.F. challenges the lack of notice of the
termination hearing, the effectiveness of her counsel, the sufficiency of the evidence to
support her constructive abandonment of the child, the sufficiency of the evidence to
support her failure to comply with court-ordered services, and the finding that termination
is in the best interest of the child. We affirm the judgment of the trial court.
1 To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM.
CODE ANN. § 109.002(d) (West Supp. 2018); TEX. R. APP. P. 9.8(b). The father’s parental rights were also
terminated in this proceeding. He does not appeal.
Background
K.F. and her boyfriend, K.B., were living with K.F.’s mother when S.B.2 was born
on February 14, 2018. S.B. was unable to breathe and feed simultaneously and, due to
these complications, S.B. remained in the neonatal intensive care unit at Northwest
Hospital in Amarillo for fifteen days. While S.B. was hospitalized, the Texas Department
of Family and Protective Services became involved after allegations of abuse and neglect
by K.F. and K.B.3 were reported to the Department. The report alleged that K.B. was
angry at hospital staff and “acting irrationally” which led to him being escorted out of the
hospital.
The Department’s investigator conducted several visits to the home that K.F. and
K.B. would be sharing with K.B.’s father once S.B. was discharged from the hospital. The
home was found to be in a deplorable condition and was deemed unsafe for an infant.
Upon entry to the home, the investigator observed cockroaches, molded food, piles of
clothes, holes in the walls, and trash everywhere. According to the investigator, the home
smelled of rotting meat, cat urine, and human body odor. The home remained in this
condition throughout the investigation with little improvement. There were also concerns
due to K.B.’s untreated mental health issues and his previous history with the Department
which resulted in the removal of K.B.’s child from a previous relationship. As a part of the
Department’s investigation, drug testing was performed and K.B. tested positive for
marijuana. The Department offered Family Based Safety Services to K.F. and K.B., if
K.F. would move into a shelter with S.B. while K.B. worked services. K.F. refused to
2 S.B. is K.F.’s second child. K.F.’s older child lives with his father in Pittsburg, Texas.
3 The Department initially believed that K.B. was the father of S.B.
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separate herself from K.B. and there were no other placement possibilities available.
After determining that S.B. would be at serious risk for substantial harm because of the
mental and emotional functioning of K.B., the inability of K.F. to temporarily separate from
K.B., and the physical condition of the home, the Department obtained an order of
emergency protection of S.B. and removed the child from K.F.’s care.
Shortly after S.B. was removed, the Department was contacted by D.B.,4 who
claimed to be S.B.’s father. After genetic testing, an order was entered adjudicating D.B.
the father of S.B.
Following an adversary hearing, the Department was appointed temporary
managing conservator and S.B. was placed in a foster home pending the approval of a
home study on D.B.’s parents. The court named K.F. as a possessory conservator and
ordered her to comply with a service plan developed by the Department.
The Department developed a service plan for K.F. and, because she was
continuing her relationship with K.B., the Department also developed a service plan for
K.B. The caseworker reviewed the service plan with K.F., who signed the plan. The
court-ordered service plan set out several tasks and services for K.F. to complete before
reunification with S.B. could occur. These tasks and services included the following:
complete a psychological evaluation and follow recommendations; pay child support of
$50 per month; maintain regular contact with her caseworker; abstain from the use of
illegal drugs; submit to random drug screens; locate and maintain stable housing that is
4 K.F. lived with D.B. in Arkansas for three months after their divorce in 2017 because K.F. was
homeless and unable to seek custody of her three-year-old son. K.F. moved back to Amarillo to live with
her mother in August of 2017.
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free from drugs and violence; locate and maintain stable employment; complete a
psychosocial assessment and follow recommendations; attend individual counseling;
take parenting classes; participate in rational behavior therapy (RBT); and participate in
an assessment at Texas Panhandle Centers (TPC) and follow recommendations. The
family service plan also informed K.F. that its purpose was to assist her in providing a
safe environment for S.B. The plan warned K.F that if she was “unwilling or unable to
provide [S.B.] with a safe environment, [her] parental . . . rights may be restricted or
terminated or [S.B.] may not be returned to you.”
The trial court conducted a status hearing on April 19, 2018, attended by K.F. and
her counsel. Following the hearing, the trial court signed a status hearing order,
approving and incorporating by reference the Department’s family service plan and
making the service plan an order of the trial court. In the order, the trial court found that
K.F. had reviewed the service plan, understood it, and signed it.
The associate judge held permanency hearings on August 23 and December 6,
2018. K.F. attended each of these hearings. The associate judge signed orders following
each hearing in which the court found that K.F. had “not demonstrated adequate and
appropriate compliance with the service plan.”
K.F. completed her psychosocial evaluation and, beginning in May, she attended
six sessions of individual counseling with Jennifer Voigt, a licensed professional
counselor. According to Voigt, K.F. acknowledged that the home she shared with K.B.
was not clean and that it might not be suitable for a child. K.F. also acknowledged that
K.B. had anger outbursts in the past, but denied that he would be a danger to S.B. K.F.
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questioned the accuracy of K.B.’s positive drug tests, stating that there was no reason
that K.B. should test positive for marijuana because he was not using drugs.5 K.F. held
several different jobs throughout the sessions and, toward the end of counseling, she
obtained an apartment with K.B. and her mother. The last session that Voigt had with
K.F. was in October. Voigt opined that K.F. had knowledge of appropriate parenting skills
and that K.F. was able to explain how she would use the skills in parenting S.B. While
K.F. made progress in counseling, Voigt expressed concern that K.F. would not place the
safety of S.B. over her relationship with K.B. K.F. did not see the point of RBT and K.F.
was unable to give any example of any tools that she learned from taking the course.
Based on her experience with K.F., Voigt did not believe that K.F. was able to effectively
parent S.B.
K.F.’s caseworker testified that K.F. scheduled a psychological evaluation two
times, but that she failed to show for the evaluation. Also, K.F. did not schedule a mental
health evaluation at TPC or participate in parenting classes. The last contact that the
caseworker had with K.F. was at a home visit on December 20. According to the
caseworker, K.F. maintained sporadic contact with her. The caseworker did not have a
current phone number for K.F. at the time of trial. K.F. submitted to three random drug
tests and these tests were all negative.
In November, K.F. and K.B. moved into an apartment with K.F.’s mother. In
December, the caseworker visited the home. The conditions of that home were a serious
concern due to trash on the floor, animal feces throughout the home, and the strong smell
5 K.B. tested positive for marijuana in April, August, and December.
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of cigarette smoke and marijuana. K.F. knew a week in advance that the caseworker was
coming for a home visit and she and K.B. were still cleaning whenever the caseworker
arrived. The caseworker could tell that “they cleaned up some of the mess, but there was
still three or four piles of dog feces on the floor.” The kitchen counters were cluttered with
dishes and the cookware was coated with food that had obviously “been there for a long
time.” The condition of the floor was particularly concerning to the caseworker. K.B.’s
use of marijuana in the home also presents a safety issue for S.B.
According to K.F., the reason that the Department was involved with S.B. was due
to a complaint that K.B. was smoking marijuana at the hospital after S.B. was born. As
far as K.F. knows, K.B. does not smoke marijuana although she is aware that he has
tested positive for marijuana. K.F. was unaware that her apartment smells like marijuana.
K.F. stated that the Department was also concerned that she and K.B. were living with
K.B.’s father because he has a drinking problem and the home was a mess. That is why
K.F. and K.B. moved to an apartment in August. K.F. acknowledged that K.B. took an
anger control training class and goes to TPC for mental health help, but “he’s never really
gotten angry with me.” K.F. believed that K.B. was also participating in services with the
Amarillo Council on Alcoholism and Drug Abuse (ACADA), but the caseworker testified
that K.B. was not participating in ACADA services.
K.F. worked at Pizza Hut, “off and on,” from October of 2017 until S.B. was born in
February of 2018. After S.B. was born, K.F. worked at Sonic for approximately three
months, and then she was employed at Retail Grocery Inventory Services from June to
December. She worked at Waffle House in December and January. While working at
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Waffle House, she also worked at Sanex for about a month. On February 28, she began
working at McDonald’s.
K.F. completed her assessment with TPC before her last hearing in December,
although the Department did not receive confirmation. K.F. said TPC referred her to
Family Support Services for more counseling. According to K.F., she had an appointment
for counseling but she had to reschedule “because when she gave me the appointment
time, she told me two different appointment times, and I ended up at the wrong one.” K.F.
completed RBT in June of 2018, but she said that she did not complete her parenting
classes, “because CareNet has the parenting classes every Tuesday night from 6:00 to
8:00. I don’t have a car. I don’t have a way to get home from the parenting classes at
8:00 at night.” K.F. asked her caseworker about other options for parenting classes and
“she said the only thing they could do is give me bus vouchers.” K.F. acknowledged
receiving four bus vouchers in December, but she used those vouchers so that she and
K.B. could take drug tests that were requested in December. As far as maintaining regular
contact with her caseworker, K.F. says she has not done that “[b]ecause she will not
answer my phone calls.” K.F. completed her psychological evaluation on February 20.
She originally scheduled the evaluation for September 11, but she missed that
appointment because of a death in the family. K.F. stated that she tried to let her
caseworker know that she was having trouble rescheduling the appointment, but she
“would not answer my phone calls.”
The last time that K.F. visited S.B. was in August, before S.B. was placed with her
paternal grandparents in Arkansas. K.F. said that she has asked her caseworker
“multiple times” about making arrangements to visit S.B., stating, “I do not have a vehicle.
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I cannot get to Arkansas.” K.F. has attempted to contact the paternal grandparents, but
claims they will not answer her calls. K.F. says she has a bassinet, playpen, changing
table, and clothes for S.B. K.F. was not aware that the paternal grandparents want to
adopt S.B.
K.F. has attempted to call her caseworker “at least once a week” but she has only
been able to get ahold of her three times. The last time the caseworker visited K.F.’s
home was in October. The last time the caseworker spoke with K.F. was December 6,
after the court hearing. If K.B. is “handling his stuff, and going to counseling like he needs
to, and taking his medications like he needs to, and working through his issues,” K.F.
does not see a problem with continuing to be with him. If S.B. were returned to K.F., K.F.
and her mother would work opposite shifts so that K.F. could take care of S.B. when K.F.
was home. K.F. also has a friend who could babysit for her.
S.B. was placed in the home of her paternal grandparents in Arkansas after their
home study was approved. Contrary to K.F.’s assertions, K.F. has not contacted the
paternal grandparents to visit S.B. since S.B. was placed with them, but K.F. visited S.B.
before she was moved to Arkansas. K.F. has not sent any cards, letters, or gifts to S.B.
and she has not asked for assistance with transportation to visit S.B. S.B. is doing “[r]eally
well” in her placement. The paternal grandparents are willing to be a long-term placement
for S.B. and they are willing to adopt her if parental rights are terminated. The paternal
grandparents also have another child of the father’s placed in their home. The
caseworker testified that it is in S.B.’s best interest that K.F.’s parental rights be
terminated because K.F. has made limited progress, she has failed to complete her
services, she continues to choose the relationship with K.B. over her relationship with
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S.B., she minimizes K.B.’s drug use, and the condition of the home. S.B.’s continued
placement with her paternal grandparents ensures permanency for S.B.
On February 21, 2019, the associate judge held a final hearing concerning
termination of K.F.’s parental rights to S.B. K.F. did not appear. K.F.’s attorney requested
a continuance, which was denied by the associate judge. After testimony, the associate
judge terminated K.F.’s parental rights on the grounds set forth in Texas Family Code
section 161.001(b)(1)(N) and (O), and found that termination would be in S.B.’s best
interest. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018).6 The court
appointed the Department as the managing conservator of S.B.
K.F. timely filed a request for a de novo hearing before the referring court. The
district court held a de novo hearing and K.F. testified. By letter ruling, the district court
affirmed the termination of K.F.’s parental rights and signed an order of termination.
On appeal, K.F. raises five issues challenging the trial court’s order of termination
of her parental rights.
Standard of Review
When reviewing the legal sufficiency of the evidence in a termination case, the
appellate court should look at all the evidence in the light most favorable to the trial court’s
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). To
give appropriate deference to the factfinder’s conclusions, we must assume that the
6 Further references to provisions of the Texas Family Code will be by reference to “section__” or
“§ __.”
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factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do
so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or
found to have been not credible, but we do not disregard undisputed facts. Id. Even
evidence that does more than raise surmise or suspicion is not sufficient unless that
evidence is capable of producing a firm belief or conviction that the allegation is true. In
re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency
review, we determine that no reasonable factfinder could have formed a firm belief or
conviction that the matter that must be proven was true, then the evidence is legally
insufficient and we must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).
In a factual sufficiency review, we must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96
S.W.3d at 266. We must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the Department’s allegations.
Id. We must also consider whether disputed evidence is such that a reasonable factfinder
could not have resolved the disputed evidence in favor of its finding. 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.
Applicable Law
Involuntary termination of parental rights is a serious proceeding implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). A
parent’s right to the “companionship, care, custody, and management” of his or her child
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is a constitutional interest “far more precious than any property right.” Santosky v.
Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re M.S.,
115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination
proceedings and strictly construe the involuntary termination statutes in favor of the
parent. Holick, 685 S.W.2d at 20. However, “the rights of natural parents are not
absolute” and “[t]he rights of parenthood are accorded only to those fit to accept the
accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re
J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may forfeit his or
her parental rights by his or her acts or omissions, the primary focus of a termination suit
is protection of the child’s best interest. In re T.G.R.-M., 404 S.W.3d 7, 12 (Tex. App.—
Houston [1st Dist.] 2013, no pet.).
In a case to terminate parental rights by the Department under section 161.001 of
the Family Code, the Department must establish, by clear and convincing evidence, that
(1) the parent committed one or more of the enumerated acts or omissions justifying
termination, and (2) termination is in the best interest of the child. § 161.001(b). Clear
and convincing evidence is “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.” § 101.007 (West 2019); In re J.F.C., 96 S.W.3d at 264. Both elements
must be established and termination may not be based solely on the best interest of the
child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet.
denied). “Only one predicate finding under section 161.001[(b)](1) is necessary to
support a judgment of termination when there is also a finding that termination is in the
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child’s best interest.” In re A.V., 113 S.W.3d at 362. We will affirm the termination order
if the evidence is both legally and factually sufficient to support any alleged statutory
ground the trial court relied upon in terminating the parental rights if the evidence also
establishes that termination is in the child’s best interest. In re K.C.B., 280 S.W.3d at
894-95.
The clear and convincing evidence standard does not mean the evidence must
negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,
902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ.). The reviewing court must
recall that the trier of fact has the authority to weigh the evidence, draw reasonable
inferences therefrom, and choose between conflicting inferences. Id. The factfinder also
enjoys the right to resolve credibility issues and conflicts within the evidence and may
freely choose to believe all, part, or none of the testimony espoused by any particular
witness. Id. Where conflicting evidence is present, the factfinder’s determination on such
matters is generally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex.
App.—El Paso 1997, no writ.).
The appellate court cannot weigh witness credibility issues that depend on
demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,
the appellate court must defer to the factfinder’s determinations, as long as those
determinations are not themselves unreasonable. Id.
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Analysis
Due Process Issue
In her first issue, K.F. contends that she was denied due process because she did
not receive notice of the final hearing held on February 21 before the associate judge.
The Department responds that K.F. did not preserve this issue for appellate review.
The record shows that K.F. appeared for the permanency hearing on December 6
and that the order from the permanency hearing scheduled a final trial on the merits for
March 21, 2019. An order resetting the final hearing to February 21 was filed on
December 18. When the associate judge called the case for final hearing on February
21, K.F. was not present. K.F.’s attorney orally requested a continuance. After the judge
denied the continuance, K.F.’s attorney advised the judge that he sent notice of the final
hearing to K.F.’s last known address.
Immediately following the hearing before the associate judge, K.F.’s attorney filed
a request for de novo hearing. The referring court held a de novo hearing on March 29,
2019, at which K.F. testified. Consequently, the record shows that K.F. was afforded her
due process rights when she appeared and was heard at the de novo hearing. See
Adams v. Am. Quarter Horse Assoc., 583 S.W.2d 828,834 (Tex. App.—Amarillo 1979,
writ ref’d n.r.e.) (“The essential elements of due process . . . are notice and an opportunity
to be heard and to defend in an orderly proceeding adapted to the nature of the case.”).
Since K.F. was able to testify and present witnesses at the de novo hearing, we conclude
K.F. was not deprived of due process on these facts. We overrule K.F.’s first issue.
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Ineffective Assistance of Counsel Claim
In her second issue, K.F. asserts that her trial counsel was ineffective because he
asked no questions, made no objections, made no argument, and failed to point out that
the only order setting final hearing was for a different date than the date of trial. 7 K.F.
argues that her counsel’s representation did not simply consist of errors or poor trial
strategy, but it was so blatantly deficient that she was denied any meaningful assistance
and prejudice should be presumed.
In Texas, there is a statutory right to counsel for indigent persons in parental-rights
termination cases, and this right encompasses the right to effective counsel.
§ 107.013(a)(1) (West 2019); In re M.S., 115 S.W.3d at 544. The standard of review to
apply in evaluating claims of ineffective assistance of counsel in termination of parental
rights cases is the same as that set forth by the United States Supreme Court for criminal
cases in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). “Under the well-established Strickland test, proving ineffective assistance of
counsel requires a showing that (1) counsel made errors so serious that counsel was not
functioning as ‘counsel’ guaranteed by the Sixth Amendment, and (2) the deficient
performance prejudiced the defense, which ‘requires showing that counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” In re
H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (quoting In re M.S., 115 S.W.3d at 545).
7 This Court ordered the parties to supplement the record to include the record from the de novo
hearing and subsequently directed the parties to address the de novo hearing in supplemental briefing. In
K.F.’s supplemental brief, she does not complain about her trial counsel’s conduct during the de novo
hearing. The de novo hearing was requested by K.F.’s trial counsel and, at it, her counsel cross-examined
witnesses and made a closing argument.
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To determine whether representation was deficient, we much consider all of the
circumstances surrounding the case and determine whether counsel was “reasonably
effective.” In re M.S., 115 S.W.3d at 545. In doing so, we afford great deference to
counsel’s performance, indulging “a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance . . . .” Id. (quoting Garcia v. State,
57 S.W.3d 436, 440-41 (Tex. Crim. App. 2001)).
In conducting the harm analysis under the second prong of Strickland, reviewing
courts must determine whether there is a reasonable probability that, but for the deficient
performance, the result of the proceeding would have been different. In re M.S., 115
S.W.3d at 549-50.
An allegation of ineffective assistance of counsel in a termination proceeding must
be firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness and the resulting harm. Walker v. Tex. Dep’t of Family & Protective
Servs., 312 S.W.3d 608, 622-23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). We
may not speculate and find trial counsel ineffective when the record is silent regarding
counsel’s reasons for his actions. P.W. v. Tex. Dep’t of Family & Protective Servs., 403
S.W.3d 471, 476 (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d).
In considering the record from the hearing before the associate judge and the
supplemental record from the de novo hearing before the district court judge, the record
does not support K.F.’s contention that her trial counsel was ineffective. The record
contains an order dated December 18, 2018, rescheduling the final hearing from March
21 to February 21. K.F.’s counsel requested a continuance of the February 21 trial
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because of K.F.’s absence and promptly requested a de novo hearing. A de novo hearing
occurred on March 29. At that hearing, K.F.’s counsel questioned witnesses and made
a closing argument. There is nothing in the record before us showing that counsel’s trial
strategy was unreasonable. Without an explanation from trial counsel for his actions, we
may not, in the face of the strong presumption in favor of reasonable representation,
conclude that trial counsel lacked sound strategic reasons for his conduct. See In re M.S.,
115 S.W.3d at 549. As to the second prong of the Strickland test, K.F. has not attempted
to show how any of the actions she claims her trial counsel should have taken would have
resulted in a different outcome.
Thus, we conclude that K.F. has failed to show that her trial counsel was deficient
or that he prejudiced her defense. We overrule appellant’s issue two.
Failure to Comply with Court-Ordered Service Plan Under § 161.001(b)(1)(O)
In her third and fourth issue, K.F. challenges the legal and factual sufficiency of the
evidence to support the termination of her parental rights under section 161.001(b)(1)(N)
and (O). Only one statutory ground is required to support termination. See In re A.V.,
113 S.W.3d at 362. We limit our analysis to the issues raised in issue four concerning
the existence of a court-ordered service plan.
A trial court may terminate parental rights based on section 161.001(b)(1)(O) if the
Department establishes by clear and convincing evidence that the child was removed
under chapter 262 because of abuse or neglect, the Department has been the permanent
or temporary managing conservator for at least nine months, a court order specifically
established the actions necessary for the parent to obtain the return of the child, and the
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parent failed to comply with that order. § 161.001(b)(1)(O); In re J.F.C., 96 S.W.3d at
278-79. The Supreme Court has broadened the “abuse or neglect” elements to include
risks or threats of the environment in which the child is placed. In re E.C.R., 402 S.W.3d
239, 248 (Tex. 2013). In 2017, the Legislature amended section 161.001 and added
subsection (d), which provides that termination under subsection (b)(1)(O) is disallowed
if the parent proves, by a preponderance of the evidence, that the parent was unable to
comply with the specific provisions of the court order, and made a good faith effort to
comply but was unsuccessful through no fault of the parent. § 161.001(d). However, in
the absence of proof under subsection (d), we cannot consider “substantial compliance”
with a court-ordered family service plan to be the same as completion. In re C.R., No.
07-19-00009-CV, 2019 Tex. App. LEXIS 3082, at *9 (Tex. App.—Amarillo Apr. 16, 2019,
no pet.) (mem. op.).
This Court has held that, to support a termination order based on section
161.001(b)(1)(O), there must be a court order rather than simply a Department-generated
service plan. In re B.L.R.P., 269 S.W.3d 707, 710-711 (Tex. App.—Amarillo 2008, no
pet.). See also In re Z.B. & Z.B., No. 07-16-00026-CV, 2016 Tex. App. LEXIS 7420, at
*13 (Tex. App.—Amarillo July 12, 2016, no pet.) (mem. op.) (holding that failure of the
appellate record to contain a court order establishing the actions necessary for a parent
to obtain the return of his child defeats a termination order based on subsection (O)). A
family service plan that is signed by a parent alone does not satisfy the court-order
requirement of the statute until it has been specifically incorporated into a subsequently
signed court order. In re C.R., 2019 Tex. App. LEXIS 3082, at *14-15.
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Section 161.001(b)(1)(O) makes clear that an order 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) (per curiam). On appeal, a court must consider whether the order,
and the service plan, if it was incorporated into the order, was sufficiently specific. Id. A
trial court order referenced by section 161.001(b)(1)(O) that establishes the actions
necessary for the parent to obtain return of a child in the Department’s custody is
sufficiently specific when the terms for compliance are set forth with certainty so that the
parent knows what duties and obligations have been imposed. Id. at 238.
In issue four, K.F. challenges the existence of a court order that is sufficiently
specific to inform her what she must do to obtain the return of S.B.8 K.F. does not dispute
that S.B. was removed for abuse or neglect, that S.B. was in the Department’s care for at
least nine months, or that K.F. failed to comply with an order of the court. We conclude
that the family service plan was court ordered and sufficiently specific to support
termination.
The record reflects that the family service plan was court ordered. In this case, the
temporary order filed on March 29, 2018, ordered K.F.’s compliance “with each
requirement set out in the Department’s original, or any amended, service plan during the
pendency of this suit.” K.F. signed her family plan of service on April 4, and the plan was
8 K.F. did not expressly raise an issue under section 161.001(d), which provides exceptions to
termination of parental rights under section 161.001(b)(1)(O). See TEX. FAM. CODE ANN. § 161.001(d). As
such, we do not address section 161.001(d) in our analysis of this issue.
We note, however, that K.F. contends that she was unable to attend court-ordered parenting
classes due to lack of transportation. The Department provided her with bus vouchers specifically to resolve
her transportation issue. However, K.F. chose to use these bus vouchers for another purpose. Therefore,
we conclude that K.F. was not unable and did not make a good faith effort to comply with the court order.
See id.
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filed with the court the next day. There is no record evidence to indicate that K.F.’s plan
of service was changed or modified.
K.F. and her attorney attended the status hearing on April 19, and the court made
the following findings in its status hearing order:
2.1 The Court, having reviewed the pleadings, and considered all evidence
and information required by law, including all service plans and court reports
filed by the Department . . . .
2.4 The Court, having reviewed the service plans filed by the Department,
find, except as specifically noted below, that the service plans are
reasonable, accurate, and in compliance with the previous orders of the
Court.
2.8 The Court finds that [K.F.] has reviewed and understands the service
plan and has been advised that unless she is willing and able to provide the
child with a safe environment, even with the assistance of a service plan,
with the reasonable period of time specified in the plan, her parental and
custodial duties and rights may be subject to restriction or to termination or
the child may not be returned to her.
2.9 The Court finds that [K.F.] has signed the plan.
5.1 IT IS ORDERED that, except as specifically modified by this order or
any subsequent order, the plan of service for the parents, filed with the
Court or attached to this order and incorporated herein by reference as if
the same were copied verbatim in this order, is APPROVED and made an
ORDER of this Court.
5.2 IT IS ORDERED that the plan of service issued by this Court shall
continue in full force and effect subject to the following modifications:
“None.”
The status hearing order adopted K.F.’s filed service plan and “incorporated it by
reference” specifically making it an order of the court. At the final hearing, the status
hearing order and the service plan were admitted into evidence as exhibits. The service
plan is the only service plan in the record for K.F. Consequently, we conclude that the
record establishes that the family service plan in this case was court ordered.
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In addition to establishing that the family service plan was court ordered, the record
also reflects that the family service plan was sufficiently specific to support termination.
The family service plan incorporated into the trial court’s order in April 2018, specifically
stated the actions and responsibilities that are necessary to achieve the plan goal during
the period of the service plan. Regarding those tasks, the caseworker testified that K.F.
completed some of these services, including RBT, a psychosocial evaluation, drug
testing, and individual counseling, but she did not complete parenting classes, or maintain
stable housing or employment.
As to parenting classes, the plan provided:
Parenting Classes
[K.F.] will actively participate in and complete parenting classes. [K.F.] will
participate in a class that teaches parenting skills which are appropriate for the
ages of her children. [K.F.] will be responsible for attending two one-day classes if
she does not take a ten week class. [K.F.] will exhibit proper parenting skills in all
of her interactions with her child. [K.F.] will be responsible for any payments
regarding her classes.
Parenting classes are offered at the following agencies:
1) CareNet Pregnancy Center, 6709 Woodward, Amarillo, TX 79106. Call
(806) 354-2288 for class information on class.
2) Family Support Services, 1001 S. Polk Amarillo, TX 79101. Call (806)
342-2530 for information on classes.
3) Texas Panhandle Centers, 1500 S. Taylor, Amarillo, TX. Call (806) 359-
2005 for information on classes.
During her testimony, K.F. did not assert that the order was vague or that she did
not know where to go or who to call to schedule parenting classes. K.F. stated that she
had not participated in parenting classes, “because CareNet has the parenting classes
every Tuesday night from 6:00 to 8:00. I don’t have a car. I don’t have a way to get home
from the parenting classes at 8:00 at night.” K.F. asked her caseworker about other
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options for parenting classes and “she said the only thing they could do is give me bus
vouchers.” K.F. acknowledged receiving four bus vouchers in December, but instead of
using the vouchers for parenting, she used those vouchers so that she and K.B. could
submit to drug testing requested by the Department.
As to housing and employment, the plan provided:
Housing & Employment
[K.F.] will locate and maintain stable housing that has working utilities and
is free from drugs and violence. [K.F.] will remove or lock up anything in the
home that poses a risk of harm to her child. [K.F.] will establish daily routines
and schedules, and learn to live a less chaotic lifestyle. [K.F.] will allow
announced and unannounced home visits to her home.
[K.F.] will locate and maintain stable and appropriate employment that
provides a stable source of legal income adequate enough to support
herself and her child for a minimum of six (6) months to demonstrate
stability. [K.F.] will provide employment verification to her caseworker, and
will provide copies of pay stubs on a monthly basis.
The plan does not define stable or appropriate except to say that K.F. was to live
in a home with working utilities that is free from drugs, violence, or any hazards, and she
was to hold a job for six months with proof of income.
The testimony was disputed as to when K.F. and K.B. moved from his father’s
home and the month of the caseworker’s visit to the apartment that K.F. and K.B. shared
with K.F.’s mother. The condition of the apartment was also disputed in that K.F. claimed
not to be aware of the smell of marijuana noted by the caseworker. K.F. did not refute
the caseworker’s report of three or four piles of dog feces on the floor, which posed a
hazard for an infant who was beginning to crawl. The testimony also showed that K.F.
worked at five different jobs during the twelve months that the plan of service was in effect.
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There was also testimony that K.F. completed other services under the plan such
as RBT, drug testing, and several sessions of individual counseling, and that she
scheduled and rescheduled her psychological evaluation and counseling sessions, which
indicates that the family service plan was sufficiently specific to put K.F. on notice as to
what tasks she was required to complete.
We conclude that the plan of service was sufficiently specific to inform K.F. of the
duties and obligations required.
Here, as the trier of fact, the trial court resolved credibility issues and conflicts in
the evidence against K.F. We conclude the trial court was presented with clear and
convincing evidence sufficient to support a finding that K.F. failed to comply with specific,
itemized tasks contained within a court order required to obtain the return of her child.
See In re N.G., 577 S.W.3d at 238. As such, K.F.’s fourth issue is overruled.
Best Interest of the Child
In her fifth issue, K.F. challenges the legal and factual sufficiency of the evidence
supporting the best interest finding made under section 161.001(b)(2). A determination
of best interest necessitates a focus on the child, not the parent. See In re B.C.S., 479
S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts examine the entire
record to decide what is in the best interest of the child. In re E.C.R., 402 S.W.3d at 250.
There is a strong presumption that it is in the child’s best interest to preserve the parent-
child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
In assessing whether termination is in a child’s best interest, the courts are guided
by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
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1976). These factors include: (1) the desires of the child, (2) the emotional and physical
needs of the child now and in the future, (3) the emotional and physical danger to the
child now and in the future, (4) the parental abilities of the individuals seeking custody,
(5) the programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking custody, (7)
the stability of the home or proposed placement, (8) the acts or omissions of the parent
that may indicate that the existing parent-child relationship is not proper, and (9) any
excuse for the acts or omissions of the parent. Id. “[T]he State need not prove all of the
factors as a condition precedent to parental termination, ‘particularly if the evidence were
undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,
95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory
grounds for termination may also constitute evidence illustrating that termination is in the
child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis
may consider circumstantial evidence, subjective factors, and the totality of the evidence
as well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,
no pet.). We must also bear in mind that a child’s need for permanence through the
establishment of a stable, permanent home has been recognized as the paramount
consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.
App.—Dallas 2007, no pet.).
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The desires of the child
At the time of trial, S.B. was thirteen months old and was non-verbal. As such, the
record is silent regarding S.B.’s desires. However, the evidence showed that she had
spent all but fifteen days of her life in a foster home or relative placement. Certainly, the
lack of contact between K.F. and S.B. in the seven months prior to trial supports a
conclusion that there is no emotional bond between them. Given the vulnerable age of
S.B., this evidence weighs in favor of the trial court’s best interest determination. See In
re J.M.T., 519 S.W.3d 258, 271 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
The emotional and physical needs of and danger to the child
The next two factors are the child’s emotional and physical needs now and in the
future, and the emotional and physical danger to the child now and in the future. The
need for permanence is a paramount consideration for a child’s present and future
physical and emotional needs. Edwards v. Tex. Dep’t of Protective & Regulatory Servs.,
946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ). A parent’s inability or
unwillingness to provide adequate care for her child, lack of parenting skills, and poor
judgment may be considered when looking at the child’s best interest. In re C.A.J., 122
S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.).
At thirteen months of age, S.B. requires constant emotional and physical support.
In re A.K., 487 S.W.3d 679, 688 (Tex. App.—San Antonio 2016, no pet.). She is
dependent solely on a caregiver for her needs and protection, and these needs for
emotional and physical support will continue for many years. Id. K.F. continued her
relationship with K.B. knowing that her parental rights were in jeopardy and planned to
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continue living with K.B. K.B. did not complete his plan of service and his consistent use
of marijuana and his untreated mental health issues posed a risk to S.B.’s safety and
stability. K.F. dismissed concerns expressed by the Department about K.B.’s continued
use of marijuana and his propensity for angry outbursts. The physical condition of K.F.’s
and K.B.’s home changed very little during the Department’s involvement. K.F.’s
unwillingness or inability to maintain a drug-free home, and continued relationship with
K.B. suggests that similar conduct will occur in the future, thereby constituting evidence
of emotional and physical danger to the child now and in the future. In re D.L.N., 958
S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied). The trial court could have
concluded that K.F. is unable to meet the physical or emotional needs of S.B. and is
unable to protect S.B. from physical or emotional danger. These two factors weigh heavily
in favor of the trial court’s best interest determination.
Parenting ability and programs available to assist party seeking custody
The fourth and fifth factors will be discussed together. In reviewing the parenting
ability of the parent, a factfinder can consider the parent’s past neglect or past inability to
meet the physical and emotional needs of the child. In re G.N., 510 S.W.3d 134, 139
(Tex. App.—El Paso 2016, no pet.). “A parent’s drug use, inability to provide a stable
home, and failure to comply with his family service plan support a finding that termination
is in the best interest of a child.” In re S.B., 207 S.W.3d 877, 888 (Tex. App—Fort Worth
2006, no pet.). The factfinder can infer from a parent’s failure to take the initiative to avail
herself of the programs offered to her by the Department that the parent “did not have the
ability to motivate herself to seek out available resources needed now or in the future.”
In re J.M., No. 01-14-00826-CV, 2015 Tex. App. LEXIS 2130, at *21 (Tex. App.—Houston
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[1st Dist.] Mar. 5, 2015, no pet.) (mem. op.) (citing In re W.E.C., 110 S.W.3d 231, 245
(Tex. App.—Fort Worth 2003, no pet.)).
While K.F. completed some of her court-ordered services, she failed to
demonstrate real progress from those services and make the necessary changes in her
life that would positively impact S.B. K.F. did not see the point of RBT and she was unable
to give any example of any tools that she learned from taking the course. K.F. continued
to live in an unsafe home environment despite the Department’s intervention and
changing residences. K.F. was unwavering in her pursuit of a relationship with K.B. in
spite of his consistently testing positive for marijuana, and his refusal to participate in a
substance abuse assessment and a drug treatment program.
K.F.’s failure to complete these necessary services could have led the trial court
to infer that K.F. did not have the ability to motivate herself to seek out available resources
now or in the future. See id. at *21-22. The trial court was entitled to find that this
evidence weighed in favor of the best interest finding.
Plans for the child and stability of the home or placement
We will consider the sixth and seventh factors together. The sixth factor examines
the plans for the child by those individuals or the agency seeking custody. The seventh
factor is the stability of the home or proposed placement. Stability and permanence are
paramount in the upbringing of children. In re J.D., 436 S.W.3d 105, 120 (Tex. App.—
Houston [14th Dist.] 2014, no pet.). The factfinder may compare the parent’s and the
Department’s plans for the child and determine whether the plans and expectations of
each party are realistic or weak and ill-defined. Id. at 119-20.
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K.F. obtained an apartment so that S.B. could come home and she has acquired
a bassinet, playpen, changing table, and clothes for S.B. K.F. has the ability to get a crib
if she needs one. K.F. plans to let her mother keep S.B. when K.F. is working, and then
K.F. can care for S.B. while her mother works. K.F. plans to continue her relationship
with K.B. regardless of whether S.B. is returned to her care. K.F.’s inability to demonstrate
stability is further evidenced by her frequent job changes, and her failing to establish a
safe, stable, and drug-free home environment suitable for a thirteen-month-old child.
The Department was seeking permanence for S.B. S.B. has lived with her paternal
grandparents since August of 2018 and she is doing “really well” in their home. S.B.’s
half-sibling is also placed in the home. The paternal grandparents wish to adopt S.B.,
which would provide permanency and stability for S.B. If adopted, S.B. would receive
post-adoption benefits.
This evidence supports the trial court finding that termination was in the best
interest of the child.
Acts and omissions of the parent
The eighth factor is the parent’s acts or omissions that may indicate that the
existing parent-child relationship is not a proper one. Despite K.B.’s many positive drug
tests, K.F. continued to assert that K.B. did not use marijuana and questioned the
accuracy of his positive tests. K.F. was aware from the time that S.B. was taken into care
by the Department that her parental rights were in jeopardy and that she was required to
complete services offered by the Department in order to be reunited with S.B. Here,
although the evidence showed that K.F. completed some of the plan’s requirements, the
27
evidence showed that K.F. did not comply with the portion of her plan designed to address
the reasons S.B. was taken into care, including: K.F.’s failure to maintain stable housing
that is free from drugs, locate and maintain stable employment for a minimum of six
months to demonstrate stability, maintain regular contact with her caseworker regarding
her participation and progress in services, participate in and complete parenting classes,
and complete a TPC assessment within sixty days of receiving the plan.
In considering this evidence, the trial court could have found that the existing
parent-child relationship is not a proper one.
We conclude that the evidence is both legally and factually sufficient to establish
a firm conviction in the mind of the trial court that termination of K.F.’s parental rights is in
the best interest of S.B. Issue five is overruled.
Conclusion
The judgment of the trial court terminating K.F.’s parental rights is affirmed.
Judy C. Parker
Justice
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