in the Interest of K.K.N. A/K/A K.K.N., a Child

Affirmed and Memorandum Opinion filed June 26, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00079-CV
IN THE INTEREST OF K.K.N. A/K/A K.K.N., A CHILD
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Cause No. 2012-18347
MEMORANDUM OPINION
Appellant C.N. (Father) appeals the trial court’s final decree terminating his
parental rights and appointing the Department of Family and Protective Services as
sole managing conservator of his child K.K.N. (Karen).1 The trial court terminated
Father’s rights on the predicate grounds of abandonment, constructive abandonment,
and failure to comply with a family service plan. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(B), (N), & (O) (West Supp. 2017). The trial court further found that
1
We use pseudonyms to refer to the child. See Tex. R. App. P. 9.8.
termination of Father’s rights was in the child’s best interest, and named the
Department managing conservator of the child. The trial court terminated Mother’s
rights to four children including Karen. Mother executed an irrevocable affidavit of
relinquishment of her parental rights, and has not appealed the termination of her
parental rights.
In three issues Father challenges the legal and factual sufficiency of the
evidence to support the trial court’s findings on the predicate grounds of
abandonment and constructive abandonment, and that termination is in the best
interest of the child. Father concedes the evidence is sufficient to support the trial
court’s finding that he failed to comply with the family service plan. Because we
conclude the evidence is legally and factually sufficient to support the trial court’s
findings, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial Proceedings
1. Child Support Review Order
This case began in 2012 with a Child Support Review Order establishing the
parent-child relationship between Father and child. The order established that Father
is the biological father of Karen. Mother and Father were appointed joint managing
conservators of the child. Mother was designated the conservator who could
determine the child’s primary residence. The order also contained a possession and
access order regarding when each parent would have possession of the child. Father
was ordered to pay monthly child support in addition to monthly medical support.
2. Pretrial Removal Affidavit
Four years later the Department filed a motion to modify for conservatorship
and for termination of both parents’ parental rights. The removal affidavit notes that
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the Department received a referral reporting neglectful supervision by Mother. At
the time, Mother had three children; Karen was the middle child. The original
neglectful supervision case was closed because Mother was making no progress and
had agreed to placement of the children with her cousin. During Mother’s fourth
pregnancy she tested positive for marijuana on four separate occasions. When the
fourth child was born Mother placed her with another family member.
The Department sought to be named temporary managing conservator of all
four children because there were no appropriate caregivers to provide for their needs.
Mother was given sufficient time to complete her services, but failed to do so and
continued to test positive for drugs.
3. The Investigation
The Department investigator received the case on August 29, 2016, and noted
the following findings:
On February 15, 2013, three years before the current removal, the Department
received a referral alleging medical neglect of Karen, then two years old, by Mother.
The referral noted that Karen had a black eye and that is was alleged that Mother hit
her. Karen was wheezing due to untreated asthma and appeared to be malnourished.
Father was identified as a potential stable environment for Karen, but was ruled out
because he may have schizophrenia and bipolar disorder. In addition Father stated
his concerns about Karen’s medical needs, but admitted he did not seek medical
attention because “he is a slow learner and does not understand.” Father admitted
being arrested because he was smoking marijuana. Father also admitted smoking
Kush (synthetic marijuana). Mother expressed concerns about Father’s mental
health, but allowed the children to stay with him unsupervised.
Mother has an extensive history with the Department including as a child. Her
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last Department case was due to one of her children’s death as a result of Sudden
Infant Death Syndrome. Mother’s youngest child was born in April 2015. During
the time from December 2015 through August 2016, the Department attempted to
engage both parents in services. The parents started the parenting class, but did not
complete it. The Department had difficulty contacting both parents because they
moved frequently and the Department did not have valid contact information.
The Department was able to contact the parents and engage in a family team
meeting in March 2016. The parents were informed again of what services they
needed to complete to obtain the return of their children. In April 2016 both parents
missed appointments with the Wellness Group for substance abuse counseling. In
May 2016 both parents failed to appear for ordered drug testing. In June 2016 neither
parent could be located; there was also no contact noted for the month of July.
On August 22, 2016, Mother called a Department supervisor and informed the
supervisor that the three older children were living with her, “and she wanted the
agency to know before she got into trouble.” The next day drug tests on Mother were
administered. Mother tested positive for marijuana in both her hair and urine.
4. Family Service Plan
The Department prepared family service plans for both parents. The trial
court’s status hearing order adopted the service plan as an order of the court. Father’s
plan required him to:
 Attend all court hearings, permanency conferences, and visits;
 Complete a parenting class;
 Demonstrate stability in housing and income;
 Participate in random drug testing;
 Participate in a substance abuse assessment;
 Participate in psychological and psychiatric assessments; and
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 Sign a release of information so that the Department could have
access to his records at agencies from which he received services.
Father admits that the only service he completed was a Children’s Crisis Care Center
(4 C’s) assessment.
B. Trial Testimony
Trial began with Mother’s testimony about her execution of affidavits of
relinquishment to all four of her children.
The caseworker then testified that the two oldest girls, including Karen, were
placed in a foster home. The foster home is meeting the children’s needs and the
Department believes it can place the children in a permanent home. Both of the older
girls’ demeanors have dramatically improved since being placed with the foster
parents.
Mother’s four children have three different fathers. The trial court accepted
Mother’s affidavit of relinquishment as voluntary and set a trial date for the three
fathers, one of whom is Karen’s father, the appellant in this appeal.
When trial resumed, Father’s attorney was present, but Father did not appear.
Father’s attorney noted that Father was aware of the trial setting, but told his attorney
he had to pick up his son from school and would not be able to attend the trial.
Father’s attorney moved for a continuance, which was denied by the trial court.
The caseworker testified to the Department’s initial involvement with the
children. The three oldest children, including Karen, had been removed from Mother
after a report of neglect, and were staying with a relative caregiver. The caregiver
later gave the three children back to Mother. Mother called the Department to inform
them that she had the children. The Department required Mother to submit to a drug
test in order to keep her children. Mother submitted to the drug test, tested positive,
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and the Department removed the children. Mother attempted to work services from
her family service plan, but was unable to maintain sobriety. Mother eventually
executed a voluntary affidavit of relinquishment of all four children.2
The caseworker’s interaction with Father was limited. Father appeared at an
earlier hearing, but before that hearing the caseworker had no contact with Father.
The trial court later ordered no contact between the caseworker and Father due to
Father’s “behavior, his aggressiveness towards [the caseworker], aggressiveness
towards [the caseworker’s] supervisor.” Despite the trial court’s order, according to
the caseworker’s testimony, Father continued to violate the order of no contact.
Father’s service plan was mailed to him and Father completed the 4 C’s
assessment. The Department required Father to submit to a drug test before he could
visit Karen. The caseworker arranged several opportunities for drug tests, but Father
refused. The caseworker testified,“[T]hat’s when the aggressive behavior started,
when I started asking him to go take a drug test.”
The caseworker expressed concern that Father was appearing at the
Department’s office looking for the caseworker even though he had been instructed
to have no contact with her. The Department also received two referrals on another
child who was living with Father during the pendency of this case. When the
Department investigator drove to Father’s home to investigate the referrals, Father
was “nowhere to be found.” The Department also introduced a certified copy of
Father’s 2012 criminal conviction for tampering with physical evidence.
At the time of trial Karen had been in the care of the Department for more
than a year. During that time Father provided no support for his child. The
Department has an address for Father, but has been unable to locate him at that
2
The youngest child was born after the three oldest children were initially removed.
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address. Karen was taken into Department care in August 2016; the trial took place
on December 7, 2017. Father had not seen Karen during that time.
The foster parents with whom Karen is living are willing to adopt her. Karen
seems happy and healthy with the foster family, and they are meeting all of her
needs. The foster parents are also willing to adopt Karen’s older sister who has also
been living with them. Before coming into care, Karen had medical issues,
specifically, she suffered seizures. Since coming into care and living in the foster
home Karen has not experienced seizures.3 On cross-examination the caseworker
admitted that there were indications in the 4 C’s assessment that Father may have
mental health issues.
The Child Advocate also testified that Child Advocates had difficulty
contacting Father. The Advocate testified that she personally reached out to Father
by telephone. Father answered her call, but hung up when he learned it was the
Advocate contacting him. The Advocate testified that it would not be in Karen’s best
interest to be involved with Father due to his absence throughout the duration of the
case.
At the conclusion of trial, the trial court orally announced that it was
terminating Father’s rights under the predicate grounds listed in Family Code section
161.001(b)(1)(C) and (O). The court also found that termination of Father’s rights
was in the best interest of the child. In the court’s written judgment, Father’s rights
were terminated under section 161.001(b)(1)(B), (N), and (O). We note that
subsections B, C, and N each address abandonment. A written judgment or order
controls over a trial court’s oral pronouncement. In re K.M.B., 148 S.W.3d 618, 622
(Tex. App.—Houston [14th Dist.] 2004, no pet.). In addressing Father’s issues we
3
There was no testimony about the cause of Karen’s seizures or why they stopped when
she was placed with the foster family.
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will refer to the trial court’s written judgment.
II. ANALYSIS
In three issues Father challenges the legal and factual sufficiency of the
evidence to support the trial court’s findings on the predicate grounds and the best-
interest finding.
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
Although parental rights are of constitutional magnitude, they are not absolute. In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just 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.”).
Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to the clear and convincing evidence standard. See
Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).
“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 Ann. § 101.007 (West
2014); In re J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a
heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).
In reviewing legal sufficiency of the evidence in a parental termination case,
we must consider all the evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or
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conviction that its finding was true. In re J.O.A., 283 S.W.3d 336, 344–45 (Tex.
2009). We assume that the fact finder resolved disputed facts in favor of its finding
if a reasonable fact finder could do so, and we disregard all evidence that a
reasonable fact finder could have disbelieved. Id.; In re G.M.G., 444 S.W.3d 46, 52
(Tex. App.—Houston [14th Dist.] 2014, no pet.).
In reviewing the factual sufficiency of the evidence, we consider and weigh
all of the evidence, including disputed or conflicting evidence. In re J.O.A., 283
S.W.3d at 345. “If, in light of the entire record, the disputed evidence that a
reasonable fact finder could not have credited in favor of the finding is so significant
that a fact 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).
A. Predicate Termination Grounds
Subsection O of Family Code section 161.001(b)(1) requires 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 of Family and Protective Services
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 Ann. § 161.001(b)(1)(O); In re S.M.R., 434 S.W.3d 576, 582 (Tex.
2014).
Father concedes the evidence is legally and factually sufficient to support the
trial court’s finding that termination was proper under subsection O. An
unchallenged fact finding is binding on us “unless the contrary is established as a
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matter of law, or if there is no evidence to support the finding.” McGalliard v.
Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); see In re E.C.R., 402 S.W.3d 239, 249
(Tex. 2013) (unchallenged findings of fact supported termination under section
161.001(1)(O) because record supported those findings).
The record supports the unchallenged finding. First, the trial court approved
and incorporated the requirements of Father’s family service plans as a court order.
See In re K.F., 402 S.W.3d 497, 504–05 (Tex. App.–Houston [14th Dist.] 2013, pet.
denied). Second, Karen had been in the Department’s managing conservatorship for
more than one year at the time of trial. Third, there is undisputed evidence that the
children were removed due to Mother’s illegal drug use.
The evidence is undisputed as well that Father did not complete the
requirements of his service plan. We conclude the evidence is legally and factually
sufficient to support the trial court’s determination that termination of Father’s
parental rights was justified under section 161.001(b)(1)(O) of the Family Code. See
In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.
“Only one predicate finding under section 161.001(1) is necessary to support
a judgment of termination when there is also a finding that termination is in the
child’s best interest.” See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Though
normally we would not need to review the sufficiency of the evidence to support the
subsection B and subsection N findings, Father urges us to review the sufficiency of
the evidence supporting the findings under subsections B and N because those
findings can be used to support the best-interest finding. See In re C.H., 89 S.W.3d
at 28.
While it is true that proof of acts or omissions under section 161.001(b)(1)
may be probative in our review of the trial court’s best-interest finding, proof of the
elements for the findings under subsections B and N are not necessary in this case
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to support a finding that parental termination is in the child’s best interest. See id.
Because there is legally and factually sufficient evidence to support the trial
court’s finding under subsection O, we need not address Father’s arguments that the
evidence is insufficient to support the trial court’s findings under section
161.001(b)(1)(B) and (N). See In re A.V., 113 S.W.3d at 362. We overrule Father’s
first two issues.
B. Best Interest of the Child
In his third issue, Father challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination is in the best interest of
the child.
The factors the trier of fact may use to determine the best interest of the child
include: (1) the desires of the child; (2) the present and future physical and emotional
needs of the child; (3) the present and future emotional and physical danger to the
child; (4) the parental abilities of the persons seeking custody; (5) the programs
available to assist those persons seeking custody in promoting the best interest of the
child; (6) the plans for the child by the individuals or agency seeking custody; (7)
the stability of the home or proposed placement; (8) acts or omissions of the parent
that may indicate the existing parent-child relationship is not appropriate; and (9)
any excuse for the parents’ acts or omissions. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976); In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th
Dist.] 2003, pet. denied); see also Tex. Fam. Code Ann. § 263.307(b) (West Supp.
2017) (listing factors to consider in evaluating parents’ willingness and ability to
provide the child with a safe environment).
Courts apply a strong presumption that the best interest of the children is
served by keeping the children with their natural parents, and the burden is on the
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Department to rebut that presumption. In re U.P., 105 S.W.3d at 230. Prompt and
permanent placement in a safe environment also is presumed to be in the children’s
best interest. Tex. Fam. Code Ann. § 263.307(a).
In his reply brief Father notes that much of the evidence the Department relied
on at trial and on appeal refers to Mother’s drug use and Karen’s siblings’ father’s
failings. In reviewing the legal and factual sufficiency of the evidence to support the
trial court’s finding on best interest we are required to review all of the evidence
presented at trial. See In re J.O.A., 283 S.W.3d at 344–45. We are mindful of the
fact, however, that the focus in a best-interest analysis is not only on the parent’s
acts or omissions, but on the nature of the relationship the child has with the parent.
In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012). Therefore, in analyzing whether
termination of Father’s parental rights was in Karen’s best interest, we focus on the
evidence regarding the nature of the relationship between Karen and Father.
1. Desires of the child
At the time of trial Karen was six years old. Father argues that there is no
evidence in the record regarding Karen’s desires. While Father is correct, a lack of
evidence regarding a best-interest factor does not constitute evidence contrary to that
factor. See id.
When children are too young to express their desires, the fact finder may
consider that the children have bonded with the foster family, are well cared for by
the foster family, and have spent minimal time with a parent. In re L.G.R., 498
S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Karen and
her older sister are living with a foster family. The foster parents are willing to adopt
both children. Before coming into care Karen suffered seizures, which she has not
experienced since she has been living with the foster family.
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2. Present and future physical and emotional needs of the child
Father argues that other than brief testimony about Karen’s seizures there is
no evidence in the record regarding specific emotional or physical needs of the child.
The caseworker testified that Karen experienced seizures prior to coming into care,
but no longer suffers seizures. Father is correct that the record does not contain
evidence explaining the cause of Karen’s seizures or the cause of their
disappearance.
While some children may have extraordinary physical and emotional needs
requiring extra care, all children have physical and emotional needs that must be met
on a daily basis. Father, was absent during trial, and provided no support during the
pendency of this termination proceeding. Father has not provided for Karen’s past
or present physical and emotional needs. A fact finder may infer from a parent’s past
inability to meet the child’s physical and emotional needs an inability or
unwillingness to meet the child’s needs in the future. See In re J.D., 436 S.W.3d 105,
118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
3. Present and future physical and emotional danger to the child
Father argues that the record contains no evidence that Father was a danger to
Karen because appellant did not play a role in the series of events giving rise to the
Department taking custody of the child. Appellant admits an “extensive criminal
history,” but only one conviction for a non-violent offense.
In making its best-interest finding, the trial court reasonably could have
credited the evidence of Father’s inability to safeguard her physical and emotional
well-being. A lack of all contact with a child without any proffered excuse and no
effort to ensure her safety—coupled with criminal history and incarceration—is
sufficient to support a best-interest finding. See In re V.V., 349 S.W.3d 548, 553–54
(Tex. App.—Houston [1st Dist.] 2010, pet. denied).
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4. Parental abilities of those seeking custody, stability of the home or
proposed placement, and plans for the child by the individuals or
agency seeking custody
These factors compare the Department’s plans and proposed placement of the
child with the plans and home of the parent seeking to avoid termination of the
parent-child relationship. See In re D.R.A., 374 S.W.3d at 535.
Because Father refused to submit to drug testing he was unable to visit his
child throughout this case. Father provided an address to the Department, but could
not be found at the residence despite several attempts by the Department to contact
him there. Father argues that the Department did not meet its burden to show that he
could not provide a safe and stable home. However, by not meeting with the
Department and refusing to speak with its representatives, Father frustrated the
Department’s attempts to determine if he could provide a safe and stable home or
maintain stable employment. The Department provided Father with a service plan
explaining the importance of accomplishing the tasks to obtain the return of his child.
Despite this effort, Father admits he did not comply with the plan.
In contrast, the foster family is meeting Karen’s emotional and physical needs,
and is willing to adopt Karen and her sister.
5. Programs available to assist in promoting the child’s best interest
In determining the best interest of the child in proceedings for termination of
parental rights, the trial court may properly consider that the parent did not comply
with the court-ordered service plan for reunification with the child. See In re E.C.R.,
402 S.W.3d at 249. The record reflects that Father did not comply with the family
service plan in that he failed to demonstrate that he maintained stable housing, and
failed to obtain or maintain legal employment. Father failed to demonstrate the
ability to provide the child with safety or stability, as is presumed by the Family
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Code to be in the child’s best interest. See Tex. Fam. Code Ann. § 263.307(a) (West
2015).
6. Acts or omissions of the parent that may indicate the existing parent-
child relationship is not appropriate, and any excuse for the parent’s
acts or omissions
In his brief Father notes that he was not allowed to visit Karen, and that the
caseworker had no contact with him. The record reflects, however, that the
Department would allow visitation if Father would submit to a drug test, but Father
refused. The trial court could infer from Father’s refusal that he was using drugs. See
In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied) (trial court could infer parent’s failure to submit to court-ordered drug
screenings indicated she was avoiding testing because she was using drugs). With
regard to the caseworker’s communication with Father, the caseworker testified that
attempts had been made to contact Father at the address he gave, but he was
“nowhere to be found.”
Father’s pattern of conduct reflects that termination is in the best interest of
the child. Father refused to submit to drug testing to be allowed visitation; Father
did not communicate with the Department or give an address where he could be
located. Not only did Father not offer an excuse for his behavior, he did not appear
at trial.
We conclude that legally and factually sufficient evidence supports the trial
court’s finding that termination was in the best interest of the child.
III. CONCLUSION
The evidence is legally and factually sufficient to support the predicate
termination finding under subsection O. And, based on the evidence presented, the
trial court reasonably could have formed a firm belief or conviction that terminating
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Father’s parental rights was in the child’s best interest so that she could promptly
achieve permanency through adoption. See In re T.G.R.-M., 404 S.W.3d 7, 17 (Tex.
App.—Houston [1st Dist.] 2013, no pet.).
We affirm the decree terminating Father’s parental rights.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Christopher, and Busby.
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