in the Interest of K.C.F. and M.C.F., Children ( 2022 )

Affirmed and Opinion Filed October 10, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00509-CV
IN THE INTEREST OF K.C.F. AND M.C.F., CHILDREN
On Appeal from the 303rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-17-12943-V
OPINION
Before Justices Schenck, Osborne, and Smith
Opinion by Justice Osborne
The trial court terminated Mother’s parental rights to K.C.F. and M.C.F. under
section 161.004 of the Texas Family Code. TEX. FAM. CODE § 161.004
(“Termination of Parental Rights After Denial of Prior Petition to Terminate”). In
two issues, Mother contends the trial court erred because (1) the matter is barred,
having been previously tried, and (2) no circumstances have substantially changed
since the trial court’s previous order. Concluding that appellee Texas Department of
Family and Protective Services (“Department”) met its burden of proof under section
161.004, we affirm the trial court’s order. See id.
BACKGROUND
In this appeal, we review the trial court’s June 3, 2022 decree (“2022 Decree”)
terminating Mother’s parental rights to K.C.F. and M.C.F. The children, twins born
in 2013, have been in foster care since August 2017. For four years, the children
were in a foster home where permanent adoption was not possible. After a search
for a permanent home and with the trial court’s permission, the Department placed
the children in a new foster home in September 2021 where adoption is a possibility.
In the 2022 Decree, the trial court found that Mother “has failed to comply
with the provisions of a court order that specifically established the actions necessary
for the mother to obtain the return of the children that have been in the permanent or
temporary managing conservatorship of [the Department] for not less than nine
months as a result of the children’s removal from the parent under Chapter 262 for
the abuse or neglect of the children, pursuant to section 161.001(b)(1)(O) of the
Texas Family Code.” The court also found that termination of the parent–child
relationship between Mother and the children was in the children’s best interest.
The 2022 Decree was the trial court’s ruling on the Department’s motion to
modify a previous order. The trial court rendered a “Final Order” dated February 28,
2019 (“2019 Order”) that included findings under family code section 161.001(b)
regarding Mother. See TEX. FAM. CODE § 161.001 (involuntary termination of
parent–child relationship). In the 2019 Order, the trial court found that Mother:
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1. Knowingly placed or knowingly allowed the children to remain in conditions
or surroundings which endangered their physical or emotional well-being, see
TEX. FAM. CODE § 161.001(b)(1)(D);
2. Engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangered the children’s physical or emotional
well-being, see TEX. FAM. CODE § 161.001(b)(1)(E);
3. Has constructively abandoned the children who have been in the permanent
or temporary managing conservatorship of the Department for not less than
six months, and (1) the Department has made reasonable efforts to return the
children to Mother, (2) Mother has not regularly visited or maintained
significant contact with the children, and (3) Mother has demonstrated an
inability to provide the children with a safe environment, see TEX. FAM. CODE
§ 161.001(b)(1)(N); and
4. Has failed to comply with the provisions of a court order that specifically
established the actions necessary for Mother to obtain the return of the
children who have been in the permanent or temporary managing
conservatorship of the Department for not less than nine months as a result of
the children’s removal from the parent under family code Chapter 262 for the
abuse or neglect of the children, TEX. FAM. CODE § 161.001(b)(1)(O).
The court also found, however, that termination of the parent–child
relationship between Mother and K.C.F. and M.C.F. was not in the children’s best
interest. See TEX. FAM. CODE § 161.001(b)(2). The court appointed the Department
as the children’s sole managing conservator and Mother as a possessory conservator.
In 2020,1 the Department moved to modify the 2019 Order, again seeking
termination of Mother’s rights. The trial court heard the motion over several days in
February and April 2022. Mother and four other witnesses testified, and several
1
The Department amended its motion to modify twice. The operative pleading at trial was the
Department’s second amended motion to modify and for termination filed on September 15, 2021.
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exhibits were admitted into evidence. We focus on the evidence relevant to Mother’s
failure to comply with a court order that the court cited in the 2022 Decree.
The Department offered evidence that the trial court decided not to terminate
Mother’s parental rights in the 2019 Order to give Mother additional time to
complete services that were first ordered in 2017. In September 2017, the court
ordered Mother to participate in parenting classes, a psychological evaluation,
counseling, a drug/alcohol assessment, and a psychiatric evaluation. In the months
that followed, the Department filed periodic reports in the trial court showing that
Mother had not complied with the service plan prepared for the family so that the
children could be returned home. The Department sometimes reported that Mother
“has stated that she may be willing to work services moving forward,” but
subsequent reports and permanency orders continued to reflect that Mother had not
complied with the court’s orders. In October 2018, Mother filed a counterpetition to
be named sole managing conservator, and the case proceeded to trial several months
later, resulting in the 2019 Order.
In the months following the 2019 Order, the Department again filed periodic
reports and service plans for Mother and the children. Each reflected that Mother
had not completed the required services. The Department reported that the court had
referred Mother “back to services as a way to demonstrate she is able to provide a
stable and safe environment for the children” and that the Department was
attempting to “achieve permanency” with Mother, but Mother had not complied.
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In a February 3, 2021 “Review Hearing Order,” the court again ordered that
Mother “complete the following services: parenting classes, psychological
evaluation, psychiatric evaluation, individual counseling, and follow all the
recommendations of the service providers.” In August 2021, Mother was evaluated
by a psychologist who recommended that the children remain in protective custody
and that any contact between Mother and the children be supervised. The
psychologist also recommended a psychiatric evaluation, individual counseling, and
parenting classes, and noted that Mother “need[s] to secure employment and
housing.”
Dwayla Harper, the Department caseworker, testified that at the time of trial,
Mother had completed only her psychological exam. Mother started a parenting class
but stopped attending after the first session. She also started and stopped individual
counseling. Harper testified that she referred Mother to another agency when Mother
reported that she and the initial counselor were incompatible. Mother attended
“maybe a couple of sessions” before the agency discontinued the sessions because
Mother “was not attending.” Harper also testified that Mother missed visits with the
children. Harper testified that for several years the Department had “really tried to
engage [Mother] to reconnect with her children,” but that “has not happened.” She
testified that the children were thriving in foster care but “[t]hey need their forever
home.”
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The Department also offered evidence of its efforts to find a placement for
K.C.F. and M.C.F., first with a relative and later in a home where adoption was
possible. Mother herself was living with an aunt, but Mother never requested that
any home study be done to determine if the children could be placed there—or in
any other home—with Mother. There was a family group conference which resulted
in K.C.F. and M.C.F.’s older siblings being placed, but no relative was available as
a placement for K.C.F. and M.C.F. They remained with a foster family who was not
able to adopt them. The Department then searched for a family who could adopt the
children, and as we have noted, the children moved to such a placement in September
2021.
In this appeal of the 2022 Decree, Mother contends that (1) “[t]his matter,
including the [Department’s] Motion to Modify, the trial, and the final order, is
barred because it is re-litigation of the same suit and issues,” and (2) there are no
grounds for modification because there has not been a substantial change in
circumstances since the trial court’s 2019 Order.
STANDARD OF REVIEW AND APPLICABLE LAW
The involuntary termination of parental rights involves fundamental
constitutional rights. In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). For this reason,
“[d]ue process requires the application of the clear and convincing evidence standard
of proof in parental termination cases.” In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).
“Clear and convincing evidence” is defined in the family code as “the measure or
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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.
“In a legal sufficiency review, a court should 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.” In re J.F.C.,
96 S.W.3d at 266. In a factual sufficiency review, we consider “whether the evidence
is such that a factfinder could reasonably form a firm belief or conviction about the
truth of the State’s allegations,” giving “due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing.” Id. (internal
quotation omitted).
The Department sought termination of Mother’s parental rights under family
code section 161.004. That section provides:
§ 161.004. Termination of Parental Rights After Denial of Prior
Petition to Terminate
(a) The court may terminate the parent–child relationship after rendition
of an order that previously denied termination of the parent–child
relationship if:
(1) the petition under this section is filed after the date the order
denying termination was rendered;
(2) the circumstances of the child, parent, sole managing
conservator, possessory conservator, or other party affected by
the order denying termination have materially and substantially
changed since the date that the order was rendered;
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(3) the parent committed an act listed under Section 161.001
before the date the order denying termination was rendered; and
(4) termination is in the best interest of the child.
(b) At a hearing under this section, the court may consider evidence
presented at a previous hearing in a suit for termination of the parent–
child relationship of the parent with respect to the same child.
TEX. FAM. CODE § 161.004. Subsection (a)(2) is at issue in this appeal.
Under subsection (a)(2), whether circumstances have “materially and
substantially changed” since the date of the previous order is a question of fact. In
re H.M.O.L., No. 01-17-00775-CV, 2018 WL 1659981, at *11 (Tex. App.—Houston
[1st. Dist.] Apr. 6, 2018, pet. denied) (mem. op.). “There are no definite guidelines
as to what constitutes a material and substantial change in circumstances under
section 161.004.” Id. (collecting cases). “Rather the determination is made by the
facts of each case.” Id. “A material and substantial change in circumstances may be
established by either direct or circumstantial evidence.” Id.DISCUSSION
Mother’s issues arise from her contention that there has been no change in
circumstances since the trial court’s 2019 Order finding that termination was not in
the children’s best interest.
1. Res judicata and collateral estoppel
In her first issue, Mother contends the Department’s request to terminate her
parental rights is barred by res judicata and collateral estoppel. She contends that no
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new issue about “her behavior and actions” has arisen since the 2019 Order and that
the Department’s evidence related only to her pre-2019 conduct.
The Department responds that Mother has waived this issue because she did
not plead res judicata or collateral estoppel, object to the admission of evidence on
that basis, or make any argument to bring the matter to the trial court’s attention. See
In re I.M., No. 06-21-00002-CV, 2021 WL 1991271, at *13 (Tex. App.—Texarkana
May 19, 2021, pet. denied) (mem. op.) (res judicata and collateral estoppel defenses
were waived when not pleaded or tried by consent). Mother does not provide any
citations to the record showing how she preserved this complaint. Her arguments
arise from her contention, addressed below in our discussion of her second issue,
that there was no material change in circumstances between the 2019 Order and the
2022 Decree. Waiver aside, we conclude that the trial court’s ruling is not barred by
res judicata or collateral estoppel.
The Department sought modification under family code section 161.004. As
explained in In re T.J., No. 11-19-00259-CV, 2020 WL 746765, at *1 n.2 (Tex.
App.—Eastland Feb. 13, 2020, no pet.) (mem. op.), “Section 161.004 has been
regarded as a mechanism through which the Department may, upon proving a
material change in the circumstances of an affected party, defeat a parent’s claim of
res judicata when the Department seeks termination after a prior petition seeking
termination was denied.” See also In re J.R., No. 07-12-00003-CV, 2012 WL
1605738, at *3 (Tex. App.—Amarillo May 8, 2012, no pet.) (mem. op.) (same).
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Subsection 161.004(a)(3) requires evidence that “the parent committed an act
listed under Section 161.001 before the date the order denying termination was
rendered.” TEX. FAM. CODE § 161.004(a)(3). Section 161.004(b) specifically permits
the court to consider evidence from a previous hearing in a suit for termination
involving the same parent and child in making the required determinations. See, e.g.,
In re N.R.T., 338 S.W.3d 667, 678–79 (Tex. App.—Amarillo 2011, no pet.).
Here, the Department offered clear and convincing evidence—mostly
undisputed by Mother—that both before and after the 2019 Order, Mother failed to
comply with court orders that were made to ensure that Mother had the counseling
and other services she needed to provide a safe and stable home for her children. See
In re J.F.C., 96 S.W.3d at 266. This evidence was admissible under family code
section 161.004(b). TEX. FAM. CODE § 161.004(b); In re J.R., 2012 WL 1605738, at
*3. We decide Mother’s first issue against her.
2. Material and substantial change in circumstances
In her second issue, Mother argues that the Department failed to carry its
burden to prove that circumstances have materially and substantially changed since
the 2019 Order. Mother argues that nothing has changed. She argues that the
Department “is still requesting” that she complete psychological and psychiatric
evaluations, parenting classes, and individual counseling, as it has requested since
2017. She argues that the children are still in foster care. They were not moved to an
adoptive placement until over a year after the Department sought termination of
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Mother’s parental rights, and “[n]o party can guarantee that adoption will occur”
since the Department failed to offer any evidence about potential obstacles to the
placement.
As we have explained, there are no definite guidelines as to what constitutes
a material and substantial change in circumstances under section 161.004. See In re
F.M.E.A.F., 572 S.W.3d 716, 725 (Tex. App.—Houston [14th Dist.] 2019, pet.
denied). Courts have determined that material and substantial changes have occurred
when a parent has failed to complete a family service plan or when permanent
adoption has been sought. See In re M.J.W., No. 14-16-00276-CV, 2016 WL
4206046, at *8 (Tex. App.—Houston [14th Dist.] Aug. 9, 2016, pet. denied) (mem.
op.) (parent failed to complete a family service plan by failing to visit the child and
attend medical appointments); In re N.R.T., 338 S.W.3d at 679 (foster parent sought
permanent adoption).
In In re J.R., the court concluded there was evidence to support a finding of
material and substantial change even though “much in [the parents’] life has
remained the same: unstable.” In re J.R., 2012 WL 1605738, at *5. The court
continued:
However, [the parents’] continued instability has manifested itself in
new ways, ways that have now impacted their relationships with their
children and the Department such that their own circumstances have
materially and substantially changed. The Department no longer saw
reunification as feasible because [the parents] had failed to complete
services since [two years before trial] and had maintained only
sporadic, infrequent visits with the girls.
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Id. Further, two of the children were “with a family who seeks to adopt them both.”
Id. at *4. Consequently, the court concluded that “the children are significantly
closer, both psychologically and logistically, to places in which they seek adoptive
families and stability.” Id.; see also In re H.M.O.L., 2018 WL 1659981, at *12
(considering changes in adoption prospects as well as parents’ continued drug use in
determining whether material and substantial change occurred under section
161.004).
Similarly here, Mother’s life remains unstable. In the five years since the trial
court first ordered her to complete services, Mother has resisted complying or has
refused to comply, completing only one requirement after the Department filed its
motion to modify. The trial court questioned the parties in some detail about
Mother’s in-person and virtual visits with the children, and heard evidence that
Mother’s participation was inconsistent. Mother did not offer any evidence of a plan
for reunification with her children. The children have now been in foster care for
half of their lives, and the Department offered evidence that all family placement
options for the children had been exhausted. See In re J.R., 2012 WL 1605738, at *5
(citing testimony that children should not “languish in foster care throughout
childhood”).
Viewing the evidence in the light most favorable to the court’s finding, we
conclude that the trial court could have formed a firm belief or conviction that a
material and substantial change in circumstances had occurred since the trial court
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rendered the 2019 Order. See In re J.F.C., 96 S.W.3d at 266. We decide Mother’s
second issue against her.
CONCLUSION
The trial court’s June 3, 2022 decree terminating Mother’s parental rights to
K.C.F. and M.C.F. is affirmed.
/Leslie Osborne//
220509f.p05 LESLIE OSBORNE
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF K.C.F. AND On Appeal from the 303rd Judicial
M.C.F., CHILDREN District Court, Dallas County, Texas
Trial Court Cause No. DF-17-12943-
No. 05-22-00509-CV V.
Opinion delivered by Justice
Osborne. Justices Schenck and Smith
participating.
In accordance with this Court’s opinion of this date, the trial court’s June 3,
2022 Decree of Termination is AFFIRMED.
Judgment entered this 10th day of October, 2022.
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