in the Interest of J.E.G., B.M.A. Jr., and A.G.A., Children ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00039-CV
IN THE INTEREST OF J.E.G., B.M.A. Jr., and A.G.A., Children
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2021-PA-00239
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: May 25, 2022
AFFIRMED
D.G. appeals the trial court’s order terminating her parental rights to her children J.E.G.,
B.M.A., Jr., and A.G.A. 1 D.G. asserts the evidence is legally and factually insufficient to support
the trial court’s predicate findings under Texas Family Code section 161.001(b). We affirm.
BACKGROUND
On February 10, 2021, the Department of Family and Protective Services (the
“Department”) filed a petition for protection of a child, for conservatorship, and for termination of
the parent-child relationship. On January 5, 2022, the trial court conducted the termination hearing
at which two witnesses—the Department caseworker and the paternal grandfather—testified. At
1
To protect the privacy of the minor children, we use initials to refer to the children and their biological parents. TEX.
FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
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the time of the hearing, J.E.G. was six years old, B.M.A. was five years old, and A.G.A. was four
years old. The children were living with their paternal grandfather. The Department caseworker,
Bianca Riojas, testified the children were taken into the Department’s care in late 2020, when a
referral was made to the Department that the children were left alone for extended periods of time
with the doors locked from the outside. Riojas said there were also concerns about the use of
marijuana and methamphetamines.
D.G. was taken into police custody on charges of endangerment/abandonment of a child
and drug possession with intent to deliver. The children were with her when she was arrested.
Two indictments were admitted into evidence: the January 2021 indictment for placing her three
children in imminent danger by failing to restrict access to a controlled substance and for
abandonment of two of the children by leaving them unsupervised at home alone, and the March
2021 indictment for possession with intent to deliver methamphetamine. At the time of the
hearing, those criminal charges were still pending.
Riojas, who took over the case in July 2021, said D.G. maintained “minimum contact” with
the Department. Riojas met with D.G. in person three times: once for only ten minutes in August,
once at the jail in December 2021, and the last time just before the January 5, 2022 termination
hearing. Throughout the case, Riojas also tried to establish contact via texting or telephone calls,
but D.G. responded to only one text.
Riojas said D.G.’s service plan called for random drug testing, drug and alcohol
assessments and, if needed, treatment, parenting classes, a psychological evaluation, and
individual counseling. She also was required to obtain a reliable source of income and stable
housing. Riojas said D.G. received and signed the plan in April 2021 and received a copy again
in August 2021. The plan contained contact information for the service providers. Riojas testified
D.G. completed her psychological evaluation and told Riojas she completed her parenting class
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but had not provided Riojas with a certificate for completion of the class. D.G. told Riojas she
“had jobs in line,” but provided no employment verification. D.G. also told Riojas she was
financially supported by her father.
During the August 10, 2021 meeting, D.G. told Riojas she would contact the service
providers about beginning her services. Despite this representation, D.G. started engaging in other
services the week of the January 2022 trial. Riojas never received any confirmation or notice of
appointments proving D.G. started the services or that D.G. took any steps to address the drug
concerns. Riojas testified that during the time of D.G.’s incarceration, the Bexar County Jail did
not offer services due to COVID concerns. Riojas further testified D.G. was not in confinement
when she received the plan in April 2021, and between the months of April 2021 and August 2021,
she had the opportunity to engage in services, but did not.
According to Riojas, the weekly, one-hour visits between D.G. and her children were going
well, but D.G. had not visited them since the end of July 2021. Riojas did not believe D.G.
provided any financial assistance to the children, she was currently living with her father, and has
not obtained stable housing. Riojas admitted she had not sent D.G. for drug testing because she
had not been able to stay in contact with D.G. Nothing in the case file indicated whether the
previous caseworker had sent D.G. for drug testing. When asked whether D.G. could meet the
physical and emotional needs of the children, Riojas replied:
Well, I explained to mom yesterday that we have been in this case for a very
long time. They [referring to both parents] haven’t made any behavioral changes.
There’s concerns with stability. Even though they’re wanting to make efforts, they
haven’t made any efforts throughout this whole past year. And they’re [sic] still
pending criminal charges on both parents. . . .
Riojas did not believe D.G. had demonstrated the ability to parent her children. If the
parents’ parental rights were terminated, the Department’s placement plan for the children was
adoption by the paternal grandparents.
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STANDARD OF REVIEW
The involuntary termination of a natural parent’s rights implicates fundamental
constitutional rights and “divests the parent and child of all legal rights, privileges, duties, and
powers normally existing between them, except for the child’s right to inherit from the parent.” In
re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied) (internal quotation
marks omitted). “As a result, appellate courts must strictly scrutinize involuntary termination
proceedings in favor of the parent.” Id. The Department had the burden to prove, by clear and
convincing evidence, both that a statutory ground existed to terminate D.G.’s parental rights and
that termination was in the best interests of the children. TEX. FAM. CODE § 161.206; In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003). “‘Clear and convincing evidence’ means the measure or degree
of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.” TEX. FAM. CODE § 101.007; S.J.R.-Z., 537 S.W.3d at
683.
When reviewing the sufficiency of the evidence supporting a trial court’s order of
termination, we apply well-established standards of review. See In re J.F.C., 96 S.W.3d 256, 263
(Tex. 2002). To determine whether the Department presented clear and convincing evidence, a
legal sufficiency review requires us to “look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true.” Id. at 266. We “assume that the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could do so.” In re R.S.-T., 522 S.W.3d 92,
98 (Tex. App.—San Antonio 2017, no pet.). “A corollary to this requirement is that a court should
disregard all evidence that a reasonable factfinder could have disbelieved or found to have been
incredible.” J.F.C., 96 S.W.3d at 266. Nevertheless, “we may not simply disregard undisputed
facts that do not support the finding; to do so would not comport with the heightened burden of
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proof by clear and convincing evidence.” In re S.L.M., 513 S.W.3d 746, 748 (Tex. App.—San
Antonio 2017, no pet.). If a reasonable factfinder could form a firm belief or conviction that the
matter that must be proven is true, then the evidence is legally sufficient. Id. at 747.
In contrast, in conducting a factual sufficiency review, we must review and weigh all the
evidence, including the evidence that is contrary to the trial court’s findings. In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009). We consider whether the disputed evidence is such that a reasonable
factfinder could not have resolved it in favor of the challenged finding. J.F.C., 96 S.W.3d at 266.
The evidence is factually insufficient only 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.” Id.
In both legal and factual sufficiency review, the trial court, as factfinder, is the sole judge
of the weight and credibility of the evidence. In re A.F., No. 04-20-00216-CV, 2020 WL 6928390,
at *2 (Tex. App.—San Antonio Nov. 25, 2020, no pet.) (mem. op.). We must defer to the
factfinder’s resolution of disputed evidentiary issues and cannot substitute our judgment for that
of the factfinder. See, e.g., In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (factual
sufficiency); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency).
STATUTORY TERMINATION GROUNDS
In three issues on appeal, D.G. challenges the legal and factual sufficiency of the evidence
to support the trial court’s predicate findings pursuant to subsections (N), (O), and (P) of section
161.001(b)(1). She does not challenge the best-interest finding. In general, assuming a best
interest finding, only one predicate ground under section 161.001(b)(1) is sufficient to support a
judgment of termination. A.V., 113 S.W.3d at 362; In re A.R.R., No. 04-18-00578-CV, 2018 WL
6517148, at *1 (Tex. App.—San Antonio Dec. 12, 2018, pet. denied) (mem. op.); In re D.J.H.,
381 S.W.3d 606, 611-12 (Tex. App.—San Antonio 2012, no pet.). Therefore, to be successful on
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appeal, an appellant must challenge all the predicate grounds upon which a trial court based its
termination order. S.J.R.-Z., 537 S.W.3d at 682.
To terminate parental rights under section 161.001(b)(1)(O), the trial court must find, 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 permanent or temporary managing conservatorship of the [Department]
for not less than nine months as a result of the child’s removal from the parent under Chapter 262
for the abuse or neglect of the child.” TEX. FAM. CODE § 161.001(b)(1)(O). Substantial
compliance is not enough to avoid a termination finding under section 161.001(O). In re C.A.,
No. 04-15-00582-CV, 2016 WL 805550, at *5 (Tex. App.—San Antonio Mar. 2, 2016, pet.
denied) (mem. op.). “More specifically, ‘any excuse for failing to complete a family services plan
goes only to the best interest determination,’ and not to whether sufficient evidence supports a
predicate finding under subsection O.” Id. (citation omitted).
There is no dispute D.G. failed to complete many requirements of her court-ordered family
service plan. She was aware of the plan in April 2021 and, since that time, completed only her
psychological evaluation, maintained “minimum contact” with the Department, stopped visits with
her children in July 2021, and did not begin other services until the week of the January 2022 trial.
On appeal, D.G. argues she had less time to comply in part because services were not offered
during the period of her incarceration. Although she was incarcerated for a portion of this time,
D.G. had approximately nine months—from the date of the April 2021 service plan to the date of
the January 5, 2022 termination hearing—to complete her services. There is no evidence of her
inability to, at a minimum, begin compliance with the service plan while she was not incarcerated.
See In re J.W., 615 S.W.3d 453, 464 (Tex. App.—Texarkana 2020, no pet.) (Department’s meeting
with appellant to discuss service plan occurred fifteen days before final hearing; holding, “Given
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the nature of the service plan’s terms in this case, fifteen days before trial was not a reasonable
time in which Appellant could complete the plan. The fact that Appellant refused to comply with
the plan at the February 18 meeting is immaterial because even if he had agreed to perform the
plan’s services, he could not possibly have completed them before the trial.”); In re V.B., No. 02-
17-00318-CV, 2018 WL 771976, at *4 (Tex. App.—Fort Worth Feb. 8, 2018, no pet.) (mem. op.)
(during six-month period mother had to complete her service plan, she did nothing to address the
Department’s main concern—her continued abuse of drugs; court acknowledged “that during this
time Mother experienced the death of her mother and her son’s hospitalization, [but] even prior to
these unfortunate events, she had done nothing about her drug problem”; “Mother’s assertion that
she was at a disadvantage due to her incarceration during part of that time is of no avail, either, as
it also does not explain her failure to act upon release.”).
After reviewing the evidence under the appropriate standards of review, we conclude a
factfinder could reasonably have formed a firm belief or conviction that D.G. failed to comply
with all the terms of a court-ordered service plan. We therefore hold legally and factually sufficient
evidence supports the trial court’s finding that D.G. violated section 161.001(b)(1)(O), and
overrule her arguments to the contrary.
CONCLUSION
Because there is legally and factually sufficient evidence of at least one predicate ground
supporting termination, we affirm the trial court’s Order of Termination.
Lori I. Valenzuela, Justice
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