in the Interest of N.K.T.

Opinion issued October 27, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00439-CV
———————————
IN THE INTEREST OF N.K.T.
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2015-02248J
MEMORANDUM OPINION
Following a bench trial, the trial court signed a judgment terminating the
parent-child relationship between C.D.T. and his one-year-old daughter, N.K.T.
Father identifies two issues on appeal, asserting that the evidence was not legally
or factually sufficient to support the trial court’s judgment.
We affirm.
Background
On February 12, 2015, the Department of Family and Protective Services
(“the Department”) received a referral regarding one-year-old J.L.W. The
Department learned that J.L.W.’s mother (“Mother”) had called the mental health
crisis hotline seeking mental health services. Mother, who suffers from
schizophrenia, reported to the hotline that she was feeling violent and having
homicidal thoughts. The report also stated that Mother was 37 or 38 weeks
pregnant and was having difficulty caring for one-year-old J.L.W. The report
stated Mother had not had mental health care since July 2014 and had been off her
psychiatric medication for two years.
In a follow-up investigation, the Department learned that, in January 2015,
when she was 36 weeks pregnant, Mother had stabbed Father in the neck with a
knife. At that time, Father had punched Mother in the face, grabbed her arm,
elbowed her in the back, and scratched her face. Father was arrested for assault
family violence. Mother obtained a protective order against Father from the
criminal court.
Mother gave birth to N.K.T. on February 26, 2015. Father is N.K.T.’s
biological father. J.L.W. has a different father, who is deceased.
After the initial referral, the Department continued to monitor the family.
On April 13, 2015, the Department filed suit, requesting the trial court to issue
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temporary orders appointing the Department as temporary sole managing
conservator of one-year-old J.L.W. and one-month-old N.K.T. If family
reunification could not be achieved, the Department sought to terminate the parent-
child relationship between the children and their respective parents. To support its
requested relief, the Department offered the affidavit of its representative, Cheryl
Bourda.
In her affidavit, Bourda indicated that Mother was not taking her psychiatric
medication and had not sought follow-up mental health treatment for her
schizophrenia. She said that Mother denied having homicidal thoughts but
reported she was “still hearing voices.” Both parents minimized the previous
domestic violence that had occurred between them. Bourda stated that Mother and
Father were in an “unstable living condition,” residing with Father’s aunt in an
apartment where they were at risk for eviction. Bourda also noted that, by living
together, Mother and Father were violating the protective order issued after Father
assaulted Mother.
Bourda also expressed concern that one-month-old N.K.T. was not being
cared for properly. Father had reported nearly injuring N.K.T. in his sleep because
the parents were “co-sleeping” with the infant. Bourda stated that the parents
continued to “co-sleep” with N.K.T. despite being instructed to cease. Bourda
concluded the affidavit by stating that “[b]oth [parents] continue to demonstrate
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bad judgment [by] placing their children in continuous risk of harm due to
domestic violence and untreated serious mental health issues.”
The same day the petition was filed, the trial court signed emergency
temporary orders, naming the Department as temporary sole managing conservator
of the children. N.K.T. was placed in foster care, and J.L.W. was placed with his
paternal grandmother. Eventually, N.K.T. was also placed with J.L.W.’s
grandmother.
The trial court held a full adversary hearing on May 18, 2015. Neither
Mother nor Father appeared at the hearing, but each were represented by appointed
counsel. The trial court signed an order, reaffirming the Department as the
children’s sole managing conservator.
The Department filed a family service plan for both parents with the trial
court. The plan stated that its “permanency goal” was family reunification. The
target date for reunification was April 18, 2016.
The court conducted a status hearing on June 15, 2015. Again, Mother and
Father did not personally attend, but counsel appeared for each parent. The trial
court made the following findings with respect to Father, who is the only parent
appealing the trial court’s judgment in this case:
2.5 The Court, having reviewed the service plans filed by the
Department, finds, except as specifically noted below, that the service
plans are reasonable, accurate, and in compliance with the previous
orders of the Court.
4
2.6 The Court finds that the goal of the service plans is to return the
children to the parent, and the plans adequately ensure that reasonable
efforts are being made to enable the parent to provide a safe
environment for the children.
....
2.8 The Court finds that [Father] has not reviewed and does not
understand the service plan and has not been advised that unless he is
willing and able to provide the children with a safe environment, even
with the assistance of a service plan, within the reasonable period of
time specified in the plan, his parental and custodial duties and rights
may be subject to restriction or to termination or the children may not
be returned to him.
The trial court also ordered that “the plans of service for [Father] filed with
the Court, and incorporated by reference as if the same were copied verbatim in
this order, [are] APPROVED and made an ORDER of this Court.” By its order,
the trial court also approved a family service plan for Mother.
Father signed the family service plan on June 24, 2015. The service plan
informed Father:
TO THE PARENT: THIS IS A VERY IMPORTANT DOCUMENT.
ITS PURPOSE IS TO HELP YOU PROVIDE YOUR CHILD WITH
A SAFE ENVIRONMENT WITHIN THE REASONABLE PERIOD
SPECIFIED IN THE PLAN. IF YOU ARE UNWILLING OR
UNABLE TO PROVIDE YOUR CHILD WITH A SAFE
ENVIRONMENT, YOUR PARENTAL AND CUSTODIAL DUTIES
AND RIGHTS MAY BE RESTRICTED OR TERMINATED OR
YOUR CHILD MAY NOT BE RETURNED TO YOU. THERE
WILL BE A COURT HEARING AT WHICH A JUDGE WILL
REVIEW THIS SERVICE PLAN.
5
The service plan also advised Father that his progress on the plan would be
evaluated based on (1) whether he completed the tasks identified in the plan, (2)
whether he had achieved the goals in the plan, and (3) whether he could “provide
for the ongoing safety and well-being of [N.K.T.].”
The service plan informed Father that the Department had the following
concerns:
Both [children] are under the age of 5 years old. [J.L.W.] is one and
[N.K.T.] is a new born.
[Mother] is schizophrenic and not taking meds. She admits to still
hearing voices. She may be homicidal. She has abuse [and] neglect
history as a child. [Mother and Father] continue to co-sleep with
[N.K.T.] after warnings. Possible drug use by Father as he has
previous drug charges.
....
[Mother] is a victim of domestic violence as [Father] punched her in
the face recently at 36 weeks pregnant. She is also an aggressor as
she stabbed [Father] in the neck earlier this year. They are co-
sleeping with [N.K.T.] even after warnings [not to do so]. They have
violent behavior and criminal history. . . .
Family is downplaying the situation. They lied about domestic
violence. They are violating protective order. They take warnings
lightly. Even gave [Mother] a chance to get her medications and she
did not, and changed her story. Family is deceitful. Family has been
told what to do, via safety plan, then afterwards for [Mother] to get
evaluated and both to drug test, . . . which they have not done.
They are unconcerned about [Mother] not being on meds, and think
she is fine. [Mother] is unwilling to protect her child from domestic
violence, as she and [Father] broke the order of protection and she
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moved in with him. [Father] is not protective, as when [Mother]
stabbed in the neck, he lied stating he did not know who did it. He
appears unconcerned as well as he admits to having a co-sleeping
experience where he almost [hurt N.K.T.] but continues [to] co-sleep
[with N.K.T.].
The service plan also stated the “goals” or “changes needed to reduce risk”
for Father, including the following:
[Father] will demonstrate the willingness and ability to protect the
child from harm.
[Father] will demonstrate the ability to communicate with spouse or
support system to deal with everyday problems.
[Father] will learn to control angry feelings and actions to prevent
harm to others.
[Father] will demonstrate an ability to provide basic necessities such
as food, clothing, shelter, medical care, and supervision for the child.
[Father] will demonstrate the ability to put the needs of the children
ahead [his] own.
[Father] will demonstrate the ability to protect child from future abuse
or neglect, and will show concern for future safety of the child.
[Father] will understand the cycle of violence and learn how to protect
[himself] and the children.
[Father] will alter behaviors that expose the children to risk of harm.
[Father] will actively cooperate in fulfilling the agreed upon safety
plan in order to control the risk of abuse or [Father] will demonstrate
an ability to change the pattern of behaving that resulted In
abuse/neglect.
[Father] will demonstrate ability to protect the child from harm.
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[Father] will understand the serious nature of the situation that placed
the child in harm’s way.
To meet these goals, the service plan required Father to complete the
following tasks and services: (1) complete parenting classes and “demonstrate the
learned behaviors during family visits”; (2) fully participate in a drug and alcohol
assessment; (3) develop and maintain a positive social support network; (4)
cooperate with the Department and maintain contact with the CPS caseworker; (5)
demonstrate the ability to place N.K.T.’s needs above his own; (6) refrain from
illegal activity; (7) sign a release to enable the Department to receive information
from service providers; (8) acquire and maintain a telephone to enable the
Department’s caseworker and the service providers to contact Father; (9) maintain
a legal form of employment; (10) notify the CPS caseworker if he is arrested; (11)
maintain stable housing for six months; (12) participate in a psychological
assessment; (13) attend court hearings; (14) complete individual and family
counseling; (15) participate and complete anger management classes; and (16)
participate in domestic violence classes.
The trial court held a permanency hearing on November 18, 2015. The
parents did not personally appear, but both were represented by counsel. In its
permanency order, the trial court found that neither parent had “demonstrated
adequate and appropriate compliance with the service plan.” The trial court again
8
approved and adopted the parents’ service plans as an order of the court. The trial
court further ordered,
The actions specified in each service plan . . . on file as of the date of
this order represent actions which this Court requires of the parent
specified in the service plan . . . and the actions must be performed in
order for the parent to regain custody of the children who are
presently in the temporary managing conservatorship of the
Department.
The Department’s caseworker, Iris Darrington, prepared a permanency
report for the trial court, which she signed on February 11, 2016. In the report,
Darrington stated that the Department’s goal with respect to N.K.T., when the case
began, was to reunite the family. Reunification was conditioned on the parents
demonstrating that they could meet her needs and keep her safe.
Under the heading “parental progress,” Darrington stated that neither Mother
nor Father had begun or completed any of the services required in his or her
service plan. With respect to Father, Darrington wrote, “[Father] has received a
detailed visitation plan that reflects specific dates, location and times in which he
will visit with his children. [Father] has not participated in any scheduled
visitation.”
The Department pursued termination of the parent-child relationship
between Mother and J.L.W. and N.K.T. and between Father and N.K.T. On April
11, 2016, the case was tried to the bench. Neither Mother nor Father attended trial,
but each were represented by counsel.
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Caseworker Darrington testified regarding Mother’s history of untreated
mental health problems and about the couple’s history of domestic violence. With
regard to the service plans, Darrington stated that the plans had been provided to
the parents but that neither Father nor Mother had completed the services identified
in the plans. The only service completed by Mother was submitting to drug
assessment. During the drug assessment, Mother admitted to using marijuana and
confirmed that she was not taking her psychiatric medication. Darrington stated
that Mother never followed the drug assessment’s treatment recommendations.
Darrington also testified that Father completed none of the services
identified in his service plan. Darrington confirmed that the Department made the
necessary referrals for Father to complete the services. She stated that Father also
had not provided the Department with proof of employment or stable housing.
Darrington testified that Mother and Father are still in a relationship and continue
to live together, even though this violated the criminal court’s protective order.
Darrington stated that the parents could not provide a safe home for the children.
When asked about Father’s visitation with N.K.T., Darrington testified,
“[Father] was provided an opportunity twice a month for two hours. However, he
never showed for any of the visits and then later on the visits were suspended.”
Darrington confirmed that, in the six months preceding trial, Father had not visited
N.K.T. Darrington stated that she had spoken with Father one month earlier. She
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asked Father if he had made appointments to engage in services. Father told her he
had made appointments. Darrington later confirmed with the service providers that
Father never engaged in services.
Darrington further stated that Father had indicated that he wanted N.K.T. to
be placed with his family. Darrington testified that she had contacted Father’s
mother and his aunt; however, neither responded to Darrington. She stated that
Father’s mother and aunt “did not provide any information so we could conduct the
home study in order to place the children.”
Darrington also testified that, at the last court hearing, on March 2, 2016, she
met with Mother and Father. She stated that “[t]the nature of that meeting was that
we were . . . continuing to go over that service plan. I let them know what
locations there were and that their 2054s were still valid.” Darrington testified that
Mother and Father appeared receptive at that time to engage in services. However,
Father did not engage in of any of the services required for him to reunite with
N.K.T.
Darrington testified that J.L.W. and N.K.T. are living with J.L.W.’s paternal
grandmother, Rhonda. She stated that both children are doing well in the
grandmother’s home and have bonded with her. Darrington confirmed that the
grandmother wishes to adopt the children.
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Etta Pickett of Child Advocates testified next. She stated that she had tried
to make contact with Mother and Father several times since the last court hearing,
but they had not called her back. She stated that Mother and Father never had a
home of their own and had been living with other people “place to place.” Pickett
agreed with Darrington that J.L.W. and N.K.T. were “doing really good” and
“thriving” in their placement with Rhonda.
Rhonda also testified. She confirmed that neither Mother nor Father had
seen the children since they were removed from the parents’ care in April 2015.
She stated that the parents “don’t even call and ask about the kids. No happy
birthdays. No Christmas presents. They don’t do anything.”
Rhonda testified that she and the children have an emotional bond. Rhonda
stated that, even though N.K.T. was not her biological grandchild, she treats her
“just like she is my own.” Rhonda testified that she wishes to adopt both children.
The State also offered a number of exhibits into evidence, including the trial
court’s temporary orders, the status-hearing order, the family service plan signed
by Father, the permanency report, and judgments of conviction showing that Father
had past convictions for a number of offenses, including drug possession, burglary,
and assault family violence. The State also showed Mother had convictions for
trespass and deadly conduct.
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At the end of trial, the trial court rendered judgment terminating the parent-
child relationship between Mother and her two children and terminating the parent-
child relationship between Father and N.K.T. With respect to Father, the trial court
found that termination was in N.K.T.’s best interest and that Father had engaged in
the predicate acts listed in Family Code Subsections 161.001(b)(1),(N) and (O).
Specifically, the trial court found that clear and convincing evidence showed (1)
Father had constructively abandoned N.K.T. (Subsection (N)), and (2) Father had
failed to comply with the provisions of a court order that specifically established
the actions necessary for him to obtain the return of N.K.T. (Subsection (O)). The
trial court also appointed the Department to be N.K.T.’s sole managing
conservator.
Father now appeals the trial court’s judgment. Mother does not appeal.
Sufficiency of the Evidence
In two issues, Father asserts that the evidence was legally and factually
insufficient to support the trial court’s predicate findings under Subsections (N)
and (O).
A. Standard of Review
Termination of parental rights requires proof by clear and convincing
evidence. See TEX. FAM. CODE ANN. 161.001(b) (Vernon Supp. 2015). This
heightened standard of review is mandated not only by the Family Code but also
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by the Due Process Clause of the United States Constitution. In re E.N.C., 384
S.W.3d 796, 802 (Tex. 2012); see also Santosky v. Kramer, 455 U.S. 745, 753–54,
102 S. Ct. 1388, 1394–95 (1982) (recognizing fundamental liberty interest parent
has in his or her child and concluding that state must provide parent with
fundamentally fair procedures, including clear and convincing evidentiary
standard, when seeking to terminate parental rights). The Family Code defines
clear and convincing evidence as “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 ANN. § 101.007 (Vernon
2014); see J.F.C., 96 S.W.3d at 264. Here, the Department was required to
establish, by clear and convincing evidence, that Father’s actions satisfied one of
the predicate grounds listed in Family Code section 161.001(b)(1) and that
termination was in N.K.T.’s best interest. See TEX. FAM. CODE ANN.
§ 161.001(b)(1), (2).
When determining legal sufficiency, we review 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.”
J.F.C., 96 S.W.3d at 266. To give appropriate deference to the fact finder’s
conclusions, we must assume that the fact finder resolved disputed facts in favor of
its finding if a reasonable fact finder could do so. Id. We disregard all evidence
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that a reasonable fact finder could have disbelieved or found to have been not
credible. Id. This does not mean that we must disregard all evidence that does not
support the finding. Id. The disregard of undisputed facts that do not support the
finding could skew the analysis of whether there is clear and convincing evidence.
Id. Therefore, in conducting a legal-sufficiency review in a parental-termination
case, we must consider all of the evidence, not only that which favors the verdict.
See City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).
In determining a factual-sufficiency point, the higher burden of proof in
termination cases also alters the appellate standard of review. In re C.H., 89
S.W.3d 17, 25–26 (Tex. 2002). “[A] finding that must be based on clear and
convincing evidence cannot be viewed on appeal the same as one that may be
sustained on a mere preponderance.” Id. at 25. In considering whether evidence
rises to the level of being clear and convincing, we must consider whether the
evidence is sufficient to reasonably form in the mind of the fact finder a firm belief
or conviction as to the truth of the allegation sought to be established. Id. We
consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at
266. “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 fact
15
finder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” Id.
We give due deference to the fact finder’s findings, and we cannot substitute
our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006). The fact finder is the sole arbiter when assessing the credibility and
demeanor of witnesses. Id. at 109.
We are mindful that the natural rights that exist between parents and their
children are of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985). Therefore, termination proceedings should be strictly scrutinized, and the
involuntary termination statutes should be strictly construed in favor of the parent.
Id. at 20–21; see In re E.R., 385 S.W.3d 552, 563 (Tex. 2012). However, “[j]ust as
it is imperative for courts to recognize the constitutional underpinnings of the
parent–child relationship, it is also essential that emotional and physical interests of
the child not be sacrificed merely to preserve that right.” C.H., 89 S.W.3d at 26;
see In re E.C.R., 402 S.W.3d 239, 240 (Tex. 2013).
B. Subsection 161.001(b)(1)(N)
In his second issue, Father contends the evidence is insufficient to support
the trial court’s finding that he committed acts establishing the predicate
termination ground set out in Subsection 161.001(b)(1)(N) of Family Code. Under
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that provision, a court may order termination of the parent-child relationship if the
court finds by clear and convincing evidence that the parent has
(N) constructively abandoned the child who has been in the permanent
or temporary managing conservatorship of the Department of Family
and Protective Services or an authorized agency for not less than six
months, and:
(i) the department or authorized agency has made reasonable
efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant
contact with the child; and
(iii) the parent has demonstrated an inability to provide the child
with a safe environment.
TEX. FAM. CODE ANN. § 161.001(b)(1)(N).
On appeal, Father does not challenge the sufficiency of the evidence to
show, at the time of trial, (1) N.K.T. had been in the Department’s conservatorship
for more than six months; (2) Father had failed to regularly visit or maintain
contact with N.K.T. for six months; or that (3) he had demonstrated an inability to
provide N.K.T. with a safe environment. Instead, Father asserts that the evidence
was not legally or factually sufficient to support the trial court’s finding that the
Department made reasonable efforts to return N.K.T. to Father. The family service
plan is key to that finding.
A family service plan is designed to reunify a parent with a child who has
been removed by the Department. Liu v. Dep’t of Family & Protective Servs., 273
17
S.W.3d 785, 795 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Father
acknowledges that implementation of a service plan is ordinarily considered a
reasonable effort to return a child to her parent for purposes of Subsection (N). See
In re A.T.L., No. 04–15–00379–CV, 2015 WL 6507807, at *5 (Tex. App.—San
Antonio Oct. 28, 2015, pet. denied); In re N.R.T., 338 S.W.3d 667, 674 (Tex.
App.—Amarillo 2011, no pet.); M.C. v. Tex. Dep’t of Family & Protective Servs.,
300 S.W.3d 305, 310–11 (Tex. App.—El Paso 2009, pet. denied).
Father acknowledges that the Department “provided him” with a service
plan. Nonetheless, Father argues that the service plan did not satisfy the
reasonable-effort-to-unite-parent-child requirement because “merely providing him
with [the service plan] is insufficient to prove reasonable efforts were made to
return N.K.T. to him.” Father intimates that, for it to satisfy the reasonable-efforts
requirement, the Department needed to show that the service plan’s
implementation comported with the provisions of Family Code sections 263.102
and 263.103, which pertain to the preparation and administration of service plans.
See TEX. FAM. CODE ANN. § 263.102 (Vernon Supp. 2016), § 263.103 (Vernon
Supp. 2016). However, as aptly noted by one court, “In reviewing the sufficiency
of the evidence supporting termination under Section 161.001(1)(N), the issue is
whether the Department made reasonable efforts, not ideal efforts.” In re S.R., No.
12–14–00238–CV, 2015 WL 302493, at *2 (Tex. App.—Tyler Jan. 23, 2105, pet.
18
denied); see also In re M.V.G., 440 S.W.3d 54, 61 (Tex. App.—Waco 2010, no
pet.) (recognizing, in conducting sufficiency analysis of reasonable-efforts
requirement, that “there probably are things the Department could have done
differently [when implementing mother’s service plan], but the issue is whether the
Department made ‘reasonable efforts’”).
Here, the evidence showed that the Department prepared and then filed a
service plan with the trial court that explained the Department’s concerns with
Father’s inability to provide N.K.T. with a safe environment. The plan stated that
its goal was to reunify Father with N.K.T., and it detailed the actions Father needed
to take in order to obtain N.K.T.’s return. The plan made clear that the parental
relationship between Father and N.K.T. could be terminated if he did not complete
the services listed in the plan. The evidence showed that Father signed the service
plan on June 24, 2015, nearly 10 months before trial.
In addition, the February 2016 permanency plan, filed with the trial court,
showed that the Department provided Father with “a detailed visitation plan that
reflects specific dates, location and times in which he will visit” N.K.T. The report
informed the trial court that “[Father] has not participated in any scheduled
visitation.”
Caseworker Darrington testified that she had made the referrals needed for
Father to complete the services identified in his plan. Darrington testified that,
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when she spoke with him on the telephone about completing the services, Father
indicated that he had made appointments to engage in services. After that,
Darrington learned from the service providers that Father had not engaged in
services. Darrington also stated that she met with the parents at a hearing one
month before trial to continue to review the service plan. Darrington’s testimony
indicated that she told the parents where to go for services. Darrington further
testified that, in addition to the service plan, she provided the parents information
regarding government assistance and public housing. She stated that the parents
had made no effort to utilize the services.
Darrington also testified that the Department has given Father an
opportunity to visit N.K.T. twice a month for two hours, but “he never showed for
any of the visits.” Rhonda, who has been caring for N.K.T. while the case was
pending, also confirmed that Father never initiated any type of contact regarding
N.K.T. Child advocate Pickett testified that she had tried to contact the parents,
but they would not return her messages.
Despite the foregoing evidence of the Department’s reasonable efforts to
reunite him with N.K.T., Father asserts on appeal that the service plan cannot
support a reasonable-efforts finding because he did not understand the service plan
at the time the trial court approved and adopted it in its June 15, 2015 status-
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hearing order.1 See TEX. FAM. CODE ANN. § 263.102 (providing in subsections
(a)(1),(2) and (d) that service plan should be specific and written in a manner the
parent can understand). Father points out that he did not attend the status hearing.
He stresses that the trial court expressly found in its June 15, 2015 status-hearing
order that he had not reviewed the service plan, and he did not understand it at that
time.
Father is correct that the record shows that he did not attend the June 15,
2015 status hearing. However, the record also shows that Father was represented
1
Father did not raise his complaints about the service plan’s alleged non-
compliance with Family Code Sections 263.102 and 263.103 in the trial court. In
its brief, the Department asserts that Father has waived his right to complain about
these deficiencies on appeal. See TEX. R. APP. P. 33.1(a) (providing, to preserve
complaints for appeal, party must make a timely, specific objection in trial court
and obtain a ruling on objection). We note that one court has held, to preserve a
procedural-due-process complaint on appeal, arising from a claim—analogous to
the one here—that a parent did not sign or understand the service plan, the
complaint must first have been raised in the trial court. See In re C.N.S., No. 14–
14–00301–CV, 2014 WL 3887722, at *7 (Tex. App.—Houston [14th Dist.] Aug.
7, 2014, no pet.) (mem. op.). In this case, Father has not raised a due-process
complaint. Instead, Father frames his appellate issue as a legal-and-factual-
sufficiency-of-the-evidence challenge to the trial court’s finding that the
Department made reasonable efforts to unite him with N.K.T., as required under
Subsection (N). In contrast to due-process complaints, sufficiency-of-the-
evidence complaints may be made for the first time on appeal when arising from a
bench trial. See TEX. R. APP. P. 33.1(d). As mentioned, this case was tried to the
bench. Because his appellate complaint is brought as a legal-and-factual-
sufficiency-of-the-evidence challenge, we will analyze it under those standards.
Cf. In re G.S., No. 14–14–00477–CV, 2014 WL 4699480, at *9 (Tex. App.—
Houston [14th Dist.] Sept. 23, 2014, no pet.) (mem. op.) (holding, in a sufficiency-
of-the-evidence review of a reasonable-efforts-to-unite-parent-child finding, that
father had waived his complaint that caseworker had not explained service plan to
him when he had not raised it in trial court, but appellate court nonetheless
conducted sufficiency-of-the-evidence review of that point).
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by counsel at that hearing and every other hearing reflected in the record. In
addition, while the June 15 order, initially approving and adopting the service plan,
reflects that the trial court found that Father had not reviewed the plan and did not
understand it, the record also reflects that Father signed the service plan nine days
later on June 24, 2015.2 By signing the plan, Father indicated that he understood
and agreed to its terms. The record further shows that the trial court reaffirmed its
approval and adoption of the service plan in its November 18, 2015 permanency
order, rendered after Father had signed the service plan.
In his brief, Father also asserts that the evidence did not show that the
service plan had been prepared in consultation with him or that the Department’s
2
Father also raises the complaint that, because he was not present at the June 15,
2015 hearing, he was not admonished pursuant to Family Code Section
263.102(b), which requires the service plan to contain the following language:
TO THE PARENT: THIS IS A VERY IMPORTANT DOCUMENT.
ITS PURPOSE IS TO HELP YOU PROVIDE YOUR CHILD WITH
A SAFE ENVIRONMENT WITHIN THE REASONABLE PERIOD
SPECIFIED IN THE PLAN. IF YOU ARE UNWILLING OR
UNABLE TO PROVIDE YOUR CHILD WITH A SAFE
ENVIRONMENT, YOUR PARENTAL AND CUSTODIAL DUTIES
AND RIGHTS MAY BE RESTRICTED OR TERMINATED OR
YOUR CHILD MAY NOT BE RETURNED TO YOU. THERE WILL
BE A COURT HEARING AT WHICH A JUDGE WILL REVIEW
THIS SERVICE PLAN.
TEX. FAM. CODE ANN. § 263.102(b) (Vernon Supp. 2015).
While Father was not personally given that admonishment at the hearing on June
15, the required language was included in the service plan signed by Father on
June 24, 2015. Thus, the statutory requirement that it be included in the plan was
met.
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caseworker had discussed or explained the terms and conditions of the plan to him
before he signed it. See id. § 263.102(a)(3) (providing service plan should “be
prepared by the department in conference with the child’s parents”); id.
§ 263.103(a) (“The original service plan shall be developed jointly by the child’s
parents and a representative of the department, including informing the parents of
their rights in connection with the service plan process. . . .”). He points out that
the record shows that he had not been consulted because the plan was initially
approved without his review or his signature.
Even though he did not sign it at the time of its preparation, there is at least
some evidence that the Department spoke with Father about its content during the
plan’s development. In the plan, under the heading “Hopes and Dreams for the
Child(ren),” is the notation: “[Father] hopes that [J.L.W.] and [N.K.T.] become
successful individuals and continue with their education.” See G.S., No. 14–14–
00477–CV, 2014 WL 4699480, at *9 (Tex. App.—Houston [14th Dist.] Sept. 23,
2014, no pet.) (mem. op.) (rejecting parent’s contention that the Department had
not satisfied reasonable-efforts requirement with implementation of its service
plan; parent had based challenge on assertion that caseworker had not reviewed
service plan with him; in rejecting challenge, court relied, in part, on evidence
regarding what parent had told the Department about his plans and his wishes for
child’s future to show caseworker had reviewed plan with him). Additionally, on
23
the signature page of the plan signed by Father, was the statement: “I understand I
may request a review or change of this plan or an evaluation of my progress at any
time.”
Father further asserts that the evidence did not show that Darrington had
timely made the referrals to the service providers, which were necessary for him to
complete the services required under the plan. We disagree. When questioned
whether “the proper referrals” were made for Father, Darrington testified, “That is
correct.”
In addition, Darrington stated that she spoke to Father on the phone one
month before trial about making appointments with the service providers, raising
an inference that the referrals were in place. Darrington also testified that, when
she met with the parents one month before trial, “their 2054s were still valid,”
which from the context of Darrington’s entire testimony, indicated that the
authorizations for the parents to engage in services were “still valid,” raising an
inference that the authorizations had been in place for some time at that point.
Lastly, the evidence showed that the Department took action to place N.K.T.
with Father’s relatives. Darrington testified that she “reached out” to Father’s
mother and aunt to inquire whether N.K.T. could be placed with them. Darrington
testified that neither relative responded to her. Darrington indicated that, because
they did not provide any information to her, the Department could not conduct a
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home study to determine whether either relative was a suitable placement for
N.K.T.
Based on our review of the record, we conclude that, when viewed in the
light most favorable to the termination findings under subsection N, the
evidence—including evidence of the Department’s implementation of the service
plan, the Department’s providing Father with a visitation schedule, and the
Department’s action attempting to place N.K.T. with Father’s relatives—shows
that a reasonable fact finder could have formed a firm belief or conviction as to the
truth of the finding that the Department made reasonable efforts to return N.K.T. to
Father. We further conclude that, when viewed in light of the entire record, the
disputed evidence that a reasonable fact finder could not have credited in favor of
the finding that the Department made reasonable efforts to return N.K.T. is not so
significant that a fact finder could not reasonably have formed a firm belief or
conviction as to the truth of this termination finding. Accordingly, we hold that the
evidence was legally and factually sufficient to support the trial court’s judgment,
terminating the parent-child relationship between Father and N.K.T. See id.; In re
V.D.A., No. 14–14–00561–CV, 2014 WL 7347776, at *6–7 (Tex. App.—Houston
[14th Dist.] Dec. 23, 2014, no pet.) (mem. op.) (holding evidence was sufficient to
support a finding that the Department made reasonable efforts to return child to
parent even though father denied knowledge of his service plan, claimed that he
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never received a copy of the plan, and disputed that caseworker discussed plan
with him); In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.)
(holding Department showed it made reasonable efforts to return child to parent
when it prepared service plans and made efforts to work with parent on plans); see
also H.N. v. Dep’t of Family & Protective Servs., 397 S.W.3d 802, 810 (Tex.
App.—El Paso 2013, no pet.) (considering testimony showing Department’s
evaluation of other family members’ homes as possible placements as part of
Department’s reasonable efforts to return child).
We overrule Father’s second issue.3
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Huddle.
3
Because only one predicate ground is needed to support a termination order, we
need not address Father’s first issue, which challenges the sufficiency of the
evidence to support the trial court’s finding under Subsection 161.001(b)(1)(O).
See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (recognizing, “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 child’s best
interest.”).
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