in the Interest of J.L., E.M., and D.M., Children ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00131-CV
___________________________
IN THE INTEREST OF J.L., E.M., AND D.M., CHILDREN
On Appeal from County Court at Law No. 2
Wichita County, Texas
Trial Court No. 13296-JR-F
Before Kerr, Birdwell, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant L.R. (Mother) appeals the trial court’s termination of her parental
rights to three1 of her children, Luke, Jack, and Kyle, 2 on the ground that she failed to
comply with a court-ordered service plan. 3 See Tex. Fam. Code. Ann.
§ 161.001(b)(1)(O). In her first issue, she challenges the constitutionality of Section
161.001(d), which precludes termination based on the failure to comply with a court
order if the parent proves by a preponderance of the evidence that (1) the parent was
unable to comply with specific provisions of the court order and (2) the parent made a
good faith effort to comply with the order and the failure to comply with the order is
not attributable to any fault of the parent. See id. § 161.001(d). In Mother’s second issue,
she argues that the trial court abused its discretion by failing to grant her motion for
Mother’s fourth child, Mark, is the subject of a separate proceeding.
1
We use aliases to refer to the children subjects of this appeal and their family.
2
See Tex. R. App. P. 9.8(b)(2) (requiring courts to use aliases to refer to minors in
parental-rights termination cases and, if necessary to protect the minors’ identities, to
also use aliases to refer to their family members); see also Tex. Fam. Code Ann.
§ 109.002(d).
3
This is our second time considering the termination of Mother’s parental rights
to Luke, Jack, and Kyle. In 2020, we reversed the trial court’s first order terminating her
rights because it had failed to provide a court reporter to record the proceedings as
required by the Texas Family Code. In re J.L., No. 02-20-00114-CV, 2020 WL 5242426,
at *2 (Tex. App.—Fort Worth Sept. 3, 2020, no pet.) (mem. op.) (relying on Tex. Fam.
Code Ann. § 201.009(a)).
2
new trial which urged the trial court to expressly consider the Holley factors in its
determination of the children’s best interests.
Because resolving Mother’s constitutional argument is not necessary to this
appeal, and because she has failed to show that the trial court abused its discretion by
declining to grant a new trial, we affirm the trial court’s order terminating Mother’s
parental rights.
Background
I. Circumstances Leading to Removal
Appellee, the Department of Family and Protective Services (the Department),
became involved with Mother and the children in November 2018 when it received a
report that Mother had been evicted from her apartment and had left her four
children—the oldest of which, Luke, was seven years old at the time—with a neighbor.
At trial, Mother claimed that she had left the children with the neighbor, who she did
not realize was on parole and a diagnosed schizophrenic, for only one-and-a-half days.
She testified that she left the children with the neighbor because she was trying to pack
up her apartment.
The Department concluded that there was reason to believe Mother had
committed neglectful supervision of the children and referred the case to family-based
services; Mother was permitted to retain custody of all four children. At trial, Mother
stated that she and the children had lived with her mother and a friend during that time,
though she could not recall the friend’s last name.
3
During this time, the Department became concerned about the children’s
apparent delayed development. Luke, diagnosed autistic, could not communicate.
According to Mother, he also had attention-deficit disorder and attention-
deficit/hyperactivity disorder. She also testified that Luke was not on medication for
his autism at the time of removal because Mother did not “believe in taking medicines
and stuff” but instead believed in taking “natural herbs” and eating certain foods that
she claimed would “do the same things as the medicine.” Jack’s speech was also delayed
and he was behind on his immunizations; and Kyle had medical issues related to lead
poisoning.
II. Removal and Implementation of Service Plan
Luke, Jack, Kyle, and Mark were removed from Mother’s care in March
2019 based on the Department’s conclusion of reason to believe she had committed
neglectful supervision and on the Department’s suspicions of Mother’s drug abuse. As
related to Luke, Jack, and Kyle,4 Mother was placed on a court-ordered Family Service
Plan by May 2019 that required Mother’s
• maintaining sobriety;
• providing and maintaining a safe and stable home with working utilities;
• allowing Child Protective Services (CPS) and Court Appointed Special
Advocates (CASA) to conduct announced and unannounced home visits;
• providing “names, dates of birth, driver’s license numbers and social security
numbers for anyone residing or found in the home”;
4
Mark was placed with his father, Cole.
4
• demonstrating a stable and legal source of income allowing her to provide for
her children on an ongoing basis;
• providing a written budget monthly to her CPS caseworker, regardless of
employment or income status;
• informing the Department of any change of address or phone number within
three days of the change;
• complying with all CPS court orders;
• actively participating in and completing parenting classes, and providing a
certificate of completion within ten days’ completion;
• visiting with the children on a regularly scheduled basis;
• providing monthly in-kind child support (clothing, diapers, school supplies, etc.);
• understanding that any individual who Mother enters a relationship with must
also complete the services identified in the service plan as necessary to the
children’s safety and well-being;
• being truthful, honest, and forthcoming in her dealings with the Department;
• reporting any relationship with someone who would have significant contact
with her children within three days of such change occurring;
• completing a drug and alcohol assessment and following all resulting
recommendations;
• submitting to random drug screens;
• providing valid prescriptions for any medications;
• completing a psychosocial evaluation and following all resulting
recommendations;
• participating in individual counseling and following all resulting
recommendations; and
• refraining from engagement in any criminal activity or associating with people
engaging in illegal activity.
A. Mother’s Relationship with the Department
Mother admitted at trial5 that she participated in the development of the service
plan and that she had signed the service plan, which included a provision acknowledging
that she had received it and understood the requirements. Despite that, she also claimed
5
The final trial was held over three days: January 21, March 5, and April 6, 2021.
5
at trial that she was unaware of or did not understand its requirements. She repeatedly
blamed the Department, the trial court, or her lawyer,6 claiming that they did not
communicate with her or assist her in completing her services.
Testimony by caseworkers from the Department and CASA conflicted with
Mother’s claims of their refusal to help her. Lucas Olson, her Department caseworker
from August 2019 through March 2020, testified that he went over the service plan with
Mother at least three times and provided her a copy of it each time and any other time
she requested one. He recalled that they met twice monthly to discuss her progress or
lack thereof and that he communicated with her regularly through text messages and
phone calls. He reported that Mother never expressed any doubt about what she had
to do to earn back custody of her children.
Olson also described Mother’s communications as displaying erratic behavior,
explaining that she would send “very hostile messages . . . that were . . . accusing us of
infringing on her rights, on her constitutional rights” and then act as if that never
happened. He suspected that her up-and-down moods could be signs of drug use.
6
Mother also claimed she did not remember many things, like whether she had
appeared at certain hearings or whether her attorney had attended hearings. At one
point, she could not recall her youngest child’s birthday and blamed the Department,
testifying, “I’ve been investigated by [the Department] numerous times, so it’s hard to
dictate the dates and times,” and “the paperwork and stuff and remembering their dates,
it’s hard to remember.” Initially she testified that Mark was born in 2019, but later
agreed with the Department’s counsel that Mark was born in 2016.
6
Beverly Vaughn, Mother’s CASA caseworker, had a similar experience with
Mother. She testified that she became “pretty close” with Mother and “worked closely
with [Mother] in hopes to have a successful monitored return.” She described Mother
as being polite and sweet when she was getting her way, but “us[ing] some choice . . .
words” when she was not getting her way. She communicated with Mother almost daily
and encouraged Mother to stay on the right path; she described her communication
with Mother as more than her average amount of communication with a parent in a
Department case. Like Olson, Vaughn could not recall Mother ever reporting that she
had not received the service plan.
Finally, Desiree Bernal testified to her experience working with Mother as her
Department caseworker and point of contact since August 2020. Like Olson and
Vaughn, Bernal communicated with Mother via phone calls and text messages.
B. Transportation
One of Mother’s primary excuses for failing to complete the service plan was her
alleged lack of transportation. Mother claimed she could not make it to visitation
sessions, counseling sessions, or drug tests, and that she could not find employment
because either her car was in need of repair, she did not have a car, or her driver’s license
was expired. But the temporary orders in the case stated that the Department could
supply transportation, including a bus pass; Olson and Vaughn described their offers
and efforts to aid Mother with transportation, and Bernal testified that Mother never
indicated she had transportation troubles.
7
Olson testified that he discussed transportation-assistance options with Mother
“[s]everal times” and only requested she give him 48 hours’ notice. Vaughn testified
that she offered Mother transportation and only asked for a day’s notice, and Mother
only requested a ride from Vaughn twice. Vaughn testified, “Well, [Mother] always was
needing a ride and then she [would] have a ride, and then the ride wouldn’t come
through. That was the story throughout.” According to Vaughn, Mother refused to ride
the bus.
During the trial, Mother stated that she had been walking everywhere but also
stated that she had access to a rental car only for emergencies. She testified that she was
late to the second day of trial because she had walked to the courthouse but walked
back home to lock her front door. She denied refusing a bus pass, and she claimed that
she did not know the Department could help with transportation, blaming the
Department for not telling her they could help or for never responding.
C. Employment and Housing
At some point, Mother attended nursing school but “got distracted and had to
drop out,” in her words. Before her separation from Mark’s father, Cole, he had been
supporting her and the children. She testified that after their breakup, she supported
herself and the children using Luke’s survivor’s benefits from his deceased father, which
were around $700 a month, and that she also received help from her mother. In mid-
2019, they lived in government-subsidized housing and she paid $179 in monthly rent,
but they were evicted in November 2019 because, according to Mother, the property
8
manager was embezzling money from the government. She testified that she was no
longer eligible for subsidized housing because of the eviction. She claimed that she
failed to look for employment during that time because she was “overly protective” of
her children, her mother was going through medical issues, and she could not find
anyone to help her with the kids.
However, Mother also testified that she worked for a home-healthcare company7
for six or seven months until the Covid-19 pandemic struck in March 2020 and she was
let go. She received some unemployment benefits after that, and she acknowledged
there was no reason she could not work by the time of trial. She worked a few odd jobs
here and there—a couple of weeks at a Dress Barn, custodial work for a bondsman,
and some furniture repair. Mother testified on the first day of trial that she had an
interview with Pizza Hut scheduled after the hearing, but at the next day of trial, she
testified that she did not make it to the interview due to a lack of transportation.
At some point after the children were removed in March 2019, Mother was
homeless for two weeks. By the time of trial, Mother was leasing a home in Wichita
Falls from a man she referred to as her uncle (though she later clarified they were not
related) and who she was initially reluctant to identify by name. Her testimony regarding
rent was inconsistent. Initially she testified that she paid $400 a month. Later she
7
Later, she clarified that she worked for two different home-health companies,
but she could not remember her dates of employment, and she was unsure of the name
of one of the companies.
9
testified that she paid $750 a month and always had. Finally, she testified she had
recently paid $500 a month and dismissed counsel’s concerns by reporting that her
“uncle” did not “scold [her] for not paying full rent.” Bernal testified that Mother and
her counsel had refused to allow the Department to visit the home.
D. Mother’s Abusive Relationships
Mother has a history of involvement in domestically violent relationships. She
testified Luke’s father was abusive during their five-year relationship. She also described
her three-and-a-half or four-year relationship with Kyle’s father, Ben, as being violent
and accused Ben of being an alcoholic. She testified that his alcohol dependency caused
“severe” problems that interfered with his ability to financially provide for them as a
family and with his ability to take care of himself; she also claimed that she was afraid
to leave her children in his care “[b]ecause he was always drinking” and he would lose
his temper and drive drunk. She described an incident when he “got physical” with
then-six-year-old Luke and “[she] defended [her] child.” But according to Vaughn,
Mother never expressed concerns about Ben being around the children until Ben was
later arrested for assaulting a subsequent girlfriend, at which point Mother said to
Vaughn, “See, he’s not a good parent either. I want my children.”
Ben, who testified at trial, described Mother as the aggressor in their relationship
and testified that they drank and did cocaine together around twice a month during
their relationship. He also alleged that Mother occasionally smoked marijuana. Once
when they had been drinking and Ben was holding Jack, Mother struck Ben in the face,
10
accidentally striking Jack at the same time. Ben stated that he was “triggered” so, after
he laid Jack down, they physically fought. Ben recalled calling the police once to report
Mother’s aggressive behavior, and Mother was arrested. Ben subsequently dropped the
charges against Mother.
Mother also averred that Mark’s father, Cole, became abusive about six months
after Mark’s birth, when she and the children lived in Oklahoma with Cole. She testified
that “he started drinking heavily and he would get physical,” “[w]ouldn’t let [her] leave,”
“push[ed her],” and “a couple of incidents where he’d slapped [her] and pushed [her]
up against the wall.” Though she initially portrayed the abuse as more than one incident,
she later claimed that she left after he hit her the first time and that the abuse occurred
in one incident. At the time of the January trial date, Cole had custody of Mark, and
Mother claimed that Cole would not allow her any visitation with Mark, despite the
admission of temporary orders from their custody proceedings revealing that Mother
was allowed supervised visitation of Mark.
In August 2020, Mother’s acquaintance (whom she denied having a relationship
with) was arrested for assaulting her. At trial, Mother could not recall any relationship
she had in the three years prior to trial that did not involve alcohol or domestic violence.
She also admitted that domestic violence and alcohol abuse are “[m]entally, physically,
[and] emotionally” damaging to children. Her plan to protect her children from
exposure to friends or partners with alcohol or drug issues or violent tendencies was to
“[s]tay alone.”
11
E. Mother’s Drug Problems
Mother’s testimony at trial was largely inconsistent with other evidence indicating
that she had struggled with drug abuse over the years. At trial, she downplayed past
marijuana use and outright denied using any other drugs: “I don’t - - marijuana was
something I experimented [with] but that was, you know - - I never done anything.”
She testified that she had “been around people who smoke meth” but denied using it.
But the Department presented records from an October 2019 drug-assessment session
in which Mother had indicated that she had a one-year history of methamphetamine
use and had last used methamphetamine a week before the assessment. The same
records indicated Mother had answered “Yes” to the following questions:
• Do you use a drug with a needle?
• During the past 12 months,
o Have you used larger amounts of alcohol or drugs or used them for
a longer time than you had intended?
o Have you gotten so high or so sick from alcohol or drugs that it
kept you from doing work, going to school, or caring for children?
o Have you spent less time at work, school, or with friends so that
you could drink or use drugs?
o Has your use of alcohol or drugs caused emotional or psychological
problems?
o Has your use of alcohol or drugs caused problems with family,
friends, work, or police?
The assessment also reflected a preliminary diagnosis of severe amphetamine-abuse
disorder, Mother’s inclusion in a “[p]riority [p]opulation” of injecting drug users, and a
recommendation that she receive substance-abuse treatment. It summarized that
Mother met the criteria for severe amphetamine abuse
12
as evidenced by [her] report of using larger amounts or using over a longer
period of time than intended, persistent desire or unsuccessful efforts to
cut down or control use, recurrent use resulting in a failure to fulfill major
role obligations at work, school, or home, important social, occupational,
or recreational activities are given up or reduce[d] because of use,
recurrent use in situations where it is physically hazardous, continued use
despite knowledge of having persistent/recurrent physical/psychological
problems likely caused or exacerbated by use.
Mother claimed at trial that she did not remember the assessment, though she did
acknowledge confessing during a family group conference to trying
methamphetamines, cocaine, and marijuana in the past.
Mother’s compliance with the Department’s requests for drug tests was also
inconsistent: she often blamed transportation issues or she claimed that the Department
had failed to communicate necessary information about the drug tests. In January
2019 she tested positive for Adderall use, for which she claimed she had an “old
prescription” but also admitted that it was expired.
Mother tested positive for methamphetamine and amphetamine usage in
January, March, and September 2019 and January 2020; she tested positive for
marijuana in April and September 2019 and January 2020. Mother blamed her positive
methamphetamine test result on a roommate allegedly using methamphetamine. In June
2019, Mother was arrested and charged with methamphetamine possession, although
she did not remember the arrest at trial until she was confronted with the arrest
paperwork. She failed to complete any drug tests requested by the Department after
March 2020.
13
Despite her denials of drug use, Mother attempted to attend three rehabilitation
programs. Olson and Vaughn assisted Mother in two attempts to participate in inpatient
rehabilitation in Dallas. Olson drove her to the Dallas facility and dropped her off, only
to find out later that she had been turned away because she had failed to disclose
pertinent medical information relating to a preexisting condition. Mother subsequently
completed only four days of inpatient rehabilitation at an Oklahoma facility before
leaving against medical advice. Vaughn and Olson then arranged for Mother to return
to the Dallas facility in March 2020, with Vaughn making arrangements to drive Mother
to the facility. But when Vaughn arrived to pick Mother up, Mother’s home was vacant,
and Mother refused to answer her phone. When Mother finally returned Vaughn’s calls
later that day, Mother revealed she had moved her things into storage and was staying
with a friend, and Mother blamed Vaughn and Mother’s attorney, cursing and accusing
them of “setting her up to fail” and asserting that it was not her fault her phone did not
ring.
Mother claimed at trial that she successfully completed a drug-rehabilitation
program somewhere in North Carolina; 8 however, she could not recall the name of the
8
Mother testified that her “uncle” paid for the North Carolina program, but
initially claimed she did not remember his name and then asked to “plead the Fifth” to
avoid giving his name. She finally gave his name and then admitted that they are not
biologically related but he “helped take care of [her].” She testified that she could not
call him and ask how much the rehabilitation program cost or what the name of it was
because he was “trying [not] to be involved.”
14
facility, where it was located, or when exactly she attended it. 9 When asked for
paperwork supporting her claim, she first blamed the Department for not giving her a
copy of it; she blamed Covid-19 for her failure to secure a copy of it directly from the
North Carolina facility; and she finally claimed that the paperwork was at her home and
she would have to find it. Olson acknowledged that Mother provided a completion
certificate but testified that it was fake.
F. Visitation, Counseling, and Parenting Classes
Mother’s attendance at visitation sessions with her children was somewhat
sporadic and she only attended about half of the scheduled visitation sessions. When
she did attend, she arrived late so often that the Department eventually required her to
arrive one hour before the scheduled visitation time. Eventually she stopped attending
and, by the first day of trial in January 2021, she had not seen the children in at least ten
months. She admitted that she had not sought any visitation, but she averred that she
had asked for information about the children “[p]lenty” of times.
Similarly, Mother was discharged from counseling because of her failure to
attend scheduled sessions. She did not reestablish counseling with anyone else
thereafter.
Similarly, Mother reported that she had completed eleven of the Alcoholics
9
Anonymous’ program steps, but she could not remember what the eleventh step entails
or what the first step was.
15
Mother claimed to have completed an online parenting class without realizing
that the service plan required it to be with specific providers. She provided a certificate
of completion to Olson; he determined that the certificate was fake. Mother admitted
at trial that she did not complete any domestic-violence-education classes.
G. The Department’s Overall Concerns
Vaughn testified that she had continuing concerns that Mother “was never
consistent, as she always tried to find ways to go around what she needed to do.” As
she put it, “[I]t was always an excuse why she couldn’t complete a service.” It also
concerned Vaughn that Mother “d[id not] see any fault in anything pertaining to this
case and she becomes very emotional when you do entrap her in situations. . . . [W]hich
it’s not really healthy. Even around the children she gets very emotional and she begins
to blame situations on others instead of . . . taking responsibility [for] the situation
herself.” Mother’s testimony at trial only confirmed Vaughn’s conclusion that
termination was in the best interest of the children because, she testified,
it appears that she is still fabricating a lot of things, like she started to do
after the second time of her not going to rehab. Her stories change
consistently and then she didn’t remember telling you what she had
originally stated. That kind of confirmed more of her ability to not change.
And if the children are placed back with her, it will be back into the
same environment, the inconsistency of her doing what she needs to do
for the children.
Olson expressed similar concerns and his conclusions that Mother had failed to
comply with the service plan.
16
H. Future Plans for the Children
At the time of trial, Luke was living with his maternal grandmother, and Jack and
Kyle were living with a relative. Luke was receiving speech, occupational, and physical
therapy at his school. He required special care as a result of his autism, and Vaughn
doubted Mother could adequately care for Luke and his special needs because she could
not take care of her own. Bernal testified that Jack received speech therapy to assist
with his development.
When questioned regarding her plans for the children’s care if she were to be
convicted of felony drug possession and face jail time, Mother said she “would have
things situated” and “would make a plan” with the Maternal Grandmother at Mother’s
home and Mother would pay the bills. When asked how she could pay the bills if she
were incarcerated, Mother replied, “If there’s a will, there’s a way.” She accused the
Department of being the real problem because “instead of helping me, knowing my
situation, they just threw me out and forgot about me.”
III. The Trial Court’s Decision, Findings, and Conclusions
The trial court determined that termination of Mother’s parental rights to Luke,
Jack, and Kyle was in their best interest and justified because Mother had failed to
comply with the provisions of the court-ordered service plan. Key findings included
that much of Mother’s testimony lacked credibility, including her claims to have
completed a parenting class and an inpatient rehabilitation program and her denial of
any history of drug abuse or criminal charges pending against her. It also found her
17
testimony “about lack of transportation . . . muddled and confusing at best and lacking
in credibility at worst.” It found Vaughn’s, Olson’s, Ben’s, and Bernal’s testimonies to
be credible. The trial court also found that Mother failed to prove by a preponderance
of the evidence that she was unable to comply with specific provisions of the court
order, she had made a good-faith effort to do so, and her failure was not attributed to
any fault of hers.
Discussion
Mother presents two issues on appeal: first, she argues that section 161.001(d) is
unconstitutional on its face and as applied to her; second, she argues that the trial court
abused its discretion by refusing to grant her motion for a new trial expressly
considering the Holley factors in its best-interest determination. It is unnecessary to
reach Mother’s constitutional arguments in resolving her appeal, and she has not shown
the trial court abused its discretion by declining to grant a new trial. Accordingly, we
overrule both of her issues and affirm the trial court’s judgment.
I. Standard of Review and Law Applicable to Termination Cases
For a trial court to terminate a parent–child relationship, the party seeking
termination must prove two elements by clear and convincing evidence: 1) that the
parent’s actions satisfy one ground listed in Family Code Section 161.001(b)(1) and
2) that termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b);
In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
18
In a termination case, the State seeks not just to limit parental rights but to erase
them permanently—to divest the parent and child of all legal rights, privileges, duties,
and powers normally existing between them, except the child’s right to inherit. Tex.
Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
Consequently, “[w]hen the State seeks to sever permanently the relationship between a
parent and a child, it must first observe fundamentally fair procedures.” In re E.R.,
385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48,
102 S. Ct. 1388, 1391–92 (1982)). For the same reason, we carefully scrutinize
termination proceedings and strictly construe involuntary-termination statutes in the
parent’s favor. E.N.C., 384 S.W.3d at 802; E.R., 385 S.W.3d at 563; Holick, 685 S.W.2d
at 20–21.
Due process demands the heightened standard of clear and convincing evidence
because “[a] parental rights termination proceeding encumbers a value ‘far more
precious than any property right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S.
at 758–59, 102 S. Ct. at 1397); J.F.C., 96 S.W.3d at 263; see also E.N.C., 384 S.W.3d at
802.
To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged finding
to determine whether a reasonable factfinder could form a firm belief or conviction
that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). The factfinder—
the trial court in this case—is the sole judge of the witnesses’ credibility and demeanor.
19
In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). We assume that the trial court settled any
evidentiary conflicts in favor of its finding if a reasonable factfinder could have done
so. J.P.B., 180 S.W.3d at 573. We disregard all evidence that a reasonable factfinder
could have disbelieved, and we consider undisputed evidence even if it is contrary to
the finding. Id. That is, we consider evidence favorable to the finding if a reasonable
factfinder could, and we disregard contrary evidence unless a reasonable factfinder
could not. See id.
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the factfinder’s findings and do not supplant the judgment with our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide
whether a factfinder could reasonably form a firm conviction or belief that the
Department proved that Mother failed to comply with the terms of the service plan or
that the termination of the parent–child relationship would be in the children’s best
interest. Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If
the factfinder reasonably could form such a firm conviction or belief, then the evidence
is factually sufficient. C.H., 89 S.W.3d at 18–19.
II. Constitutional Challenge to Section 161.001(d)
In her first issue, Mother argues that Section 161.001(d) violates the constitution
by impermissibly shifting the burden of proof to her and away from the Department.
20
See Santosky, 455 U.S. at 769, 102 S. Ct. at 1403 (holding that, at a minimum, states must
meet a clear-and-convincing burden of proof to satisfy due process in parental-rights-
termination cases); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980) (holding similarly).
Section 161.001(b)(1)(O) allows for termination of parental rights if the court
finds by clear and convincing evidence that the parent 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 Department’s care for at
least nine months as the result of the child’s removal from the parent. Tex. Fam. Code
Ann. § 161.001(b)(1)(O). Section 161.001(d) then provides:
A court may not order termination under Subsection (b)(1)(O) based on
the failure by the parent to comply with a specific provision of a court
order if a parent proves by a preponderance of evidence that:
(1) the parent was unable to comply with specific provisions of the court
order; and
(2) the parent made a good faith effort to comply with the order and the
failure to comply with the order is not attributable to any fault of the
parent.
Tex. Fam. Code Ann. § 161.001(d).
Mother argues that, on its face and as applied to her, this subsection
impermissibly shifts the burden of proof to the parent facing termination. In support
of her argument, she relies heavily on the fractured Supreme Court opinion in In re
L.M.I., and cases succeeding it, which related to voluntary affidavits of relinquishment
of parental rights. 119 S.W.3d 707 (Tex. 2003); see also, e.g., In re D.E.H., 301 S.W.3d
21825 (Tex. App.—Fort Worth 2009, pet. denied) (op. on reh’g); In re R.B., 225 S.W.3d
798 (Tex. App.—Fort Worth 2007, no pet.).
But Mother’s reliance on L.M.I. is misplaced, and her constitutional argument is
of no avail. Mother is correct that Justice Dale Wainwright, in a concurring opinion in
L.M.I., expressed his concerns about burden-shifting in the context of termination
cases. 119 S.W.3d 715–16 (Wainwright, J., concurring). However, Mother ignores the
fact that Justice Wainwright also concluded that the issue of whether the burden
impermissibly shifted was not necessary to the resolution of the case because, either
way, the mother’s appeal was unsuccessful. Id. at 715–16, 729–30 (agreeing with Justice
Priscilla Owen’s concurring opinion that posited a reasonable factfinder could have
formed a firm belief that the mother voluntarily executed the relinquishment affidavit).
The same is true in this case.
We presume that a statute enacted by our Legislature is constitutional. In re Doe
2, 19 S.W.3d 278, 284 (Tex. 2000). Relatedly, we are to consider a statute’s
constitutionality only when the question is properly raised and when such determination
is necessary and appropriate to a decision in the case. Id.; see also Tex. Ass’n of Bus. v. Air
Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (“[W]e have construed our separation of
powers article to prohibit courts from issuing advisory opinions because such is the
function of the executive rather than the judicial department.”). Similar to Justice
Wainwright’s viewpoint in his L.M.I. concurrence, we conclude that the issue of
whether Section 161.001(d) impermissibly shifts the burden away from the party
22
seeking termination is not necessary to the resolution of Mother’s appeal; the result is
the same regardless of how we resolve the question.
Mother’s request for relief is not that we reverse the trial court’s judgment, but
instead she requests that we
reform Texas Family Code § 161.001(d) to require the Department to prove
that a parent was able to comply with a specific court order and require the
Department to prove that the parent did not make a good faith effort to
comply with the order, by a constitutionally-mandated clear and
convincing evidence standard.
[Emphasis added.] She provides no authority, nor are we aware of any, that would
empower us to do what she asks. We do not have the authority to freely rewrite
legislation. C.f. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)
(“Enforcing the law as written is a court’s safest refuge in matters of statutory
construction, and we should always refrain from rewriting text that lawmakers chose
. . . .”). But even if we were to do so, it would not change the result in this case.
The evidence is legally and factually sufficient to support the trial court’s findings
that (1) she failed to comply with the court-ordered service plan, and (2) her failure to
comply was not the result of her inability to comply with specific provisions, despite
her good-faith effort to comply, or unattributable to any fault of her own. This is true
even if the Department had been required to prove the latter by clear and convincing
23
evidence.10 C.f. R.B., 225 S.W.3d at 805–06 (holding clear and convincing evidence
supported voluntariness of relinquishment affidavit, thereby obviating need to address
constitutional issue regarding burden shifting).
The trial court was presented with evidence that rather than accepting
responsibility for failing to comply with the service plan, Mother made excuses for her
behavior: her testing positive for methamphetamine use was her roommate’s fault and
her failure to complete tasks including parenting classes, rehabilitation programs,
requested drug screenings, counseling, steady employment, and visitation sessions were
the Department’s fault or chronically vague transportation issues. It heard Vaughn’s,
Olson’s, and Bernal’s testimony about their efforts to help Mother: extensive
communication and availability through text messaging and phone calls, even after
hours; offers of bus passes; offers to drive her to appointments; arrangements for her
to attend a rehabilitation program twice; multiple discussions of the service plan’s
requirements and supplying her copies of the service plan on request. It heard Olson’s
testimony that the certificates of completion Mother offered for a parenting class and
a rehabilitation program were fake. And it heard testimony and received evidence of
Mother’s positive drug tests, missed drug tests, and her arrest for and charge of
methamphetamine possession. It also heard evidence of the children’s improvements
10
To be clear, we do not hold that the Department is required to do so in
parental-rights termination cases.
24
after removal and Luke’s significant ongoing needs, juxtaposed with Mother’s lack of
plans for caring for the children if they were returned to her care and her ten-month
absence from their lives after failing to request visitation. Based on the record before
us, we hold that the trial court could have reasonably formed a firm conviction or belief
that the Department met its burden to show grounds for termination and that Mother’s
failure to comply with the service plan was inexcusable.
Accordingly, it is not necessary for us to reach Mother’s constitutional challenge.
See Tex. R. App. P. 47.1. We therefore overrule her first issue.
III. Motion for New Trial and Holley Factors
In her second issue, Mother argues that the trial court erred by refusing to grant
Mother’s motion for a new trial, which urged the trial court to take the Holley factors
into consideration in making its ruling. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976). Mother hangs her argument on a footnote in the trial court’s letter ruling stating
that it considered “all of the factors set out in Tex. Fam. Code § 263.307” in making its
determination that termination was in the children’s best interest.
We review a trial court’s decision denying a motion for new trial under an abuse
of discretion standard. D.E.H., 301 S.W.3d at 830. A trial court abuses its discretion
when it acts in an arbitrary or unreasonable manner or when it acts without reference
to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex. 1985).
25
Mother has not shown that the trial court abused its discretion by denying her
motion for new trial. In Holley, the Supreme Court provided a list of nonexclusive
factors that the factfinder may apply in determining the child’s best interest. It did not
require every factor be applied in every case, and as many courts have observed, the list
of factors is not exhaustive—some listed factors may be inapplicable to some cases,
while other factors not on the list may also be considered when appropriate. See, e.g., In
re C.J.F., 134 S.W.3d 343, 354 (Tex. App.—Amarillo 2003, pet. denied).
Moreover, the trial court’s footnote did not state that the trial court did not
consider the Holley factors in making its best-interest determination; it merely stated that
it considered the Section 263.307 factors, which Mother does not contest are
appropriate considerations in a termination case. See Tex. Fam. Code Ann. § 263.307. 11
Additionally, a letter ruling is not competent evidence of the trial court’s basis for a
finding of the children’s best interest. Bell Helicopter Textron, Inc. v. Burnett, 552 S.W.3d
901, 911 n.7 (Tex. App.—Fort Worth 2018, pet. denied). Finally, Mother does not
challenge the sufficiency of the evidence supporting the trial court’s best-interest
determination. We are bound to affirm the trial court’s judgment if it is correct on any
11
Section 263.307 lists factors that “should be considered by the court and the
department in determining whether the child’s parents are willing and able to provide
the child with a safe environment” and in light of the presumption that “the prompt
and permanent placement of the child in a safe environment is . . . in the child’s best
interest.” Id.26
legal theory supported by the evidence,12 and Mother has not shown (or even attempted
to show) that termination would not be in the children’s best interest if the evidence
were expressly considered in light of the Holley factors.
We therefore overrule Mother’s second issue.
Conclusion
Having overruled both of Mother’s issues on appeal, we affirm the trial court’s
order terminating her parental rights.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: October 7, 2021
12
Wise Elec. Coop., Inc. v. Am. Hat Co., 476 S.W.3d 671, 679 (Tex. App.—Fort Worth
2015, no pet.).
27