in the Interest of C.Y., the Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00152-CV
IN THE INTEREST OF C.Y., THE
CHILD
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2013-10913-16
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MEMORANDUM OPINION1
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I. Introduction
C.Y. was born in November 2013. Three days after her birth, the
Department of Family and Protective Services (DFPS) took possession of C.Y.,
1
See Tex. R. App. P. 47.4.
see Tex. Fam. Code Ann. § 262.104 (West 2014),2 and placed her with a foster
family while DNA tests were conducted on the potential fathers. Three months
later, after a court-ordered DNA test confirmed Appellant to be C.Y.’s father, the
trial court adjudicated him as C.Y.’s father, made him a temporary possessory
conservator of the child, and issued orders requiring him to complete various
services before C.Y. could be placed with him.
During the fourteen-month interim before trial, Appellant completed some
but not all of the services that he was ordered to perform. At the end of a week-
long jury trial in April 2015, the trial court entered judgment on the jury’s findings,
terminating Appellant’s parental rights as to C.Y.:
Based upon the jury’s verdict and the evidence submitted at
trial, the Court finds by clear and convincing evidence that
termination of the parent-child relationship between [Appellant] and
the child the subject of this suit, [C.Y.], is in the child’s best interest.
The Court finds by clear and convincing evidence that [Appellant]
has:
 failed to comply with the provisions of a Court order that
specifically established the actions necessary for the father to
obtain the return of the child, [C.Y.], who ha[s] been in the
temporary managing conservatorship of [DFPS] 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.
2
DFPS removed C.Y. from her mother because C.Y.’s meconium had
tested positive for a marijuana metabolite. C.Y.’s mother had a history with
DFPS—her parental rights had been terminated as to two older children by the
time C.Y. was born—and she had a history of unsafe relationships, substance
abuse, and mental-health issues. She admitted to using alcohol, marijuana, and
K2 while pregnant with C.Y., and after C.Y.’s birth, she voluntarily relinquished
her parental rights.
2
See Act of Mar. 30, 2015, 84th Leg., R.S., ch. 1, § 1.078, sec. 161.001(b), 2015
Tex. Sess. Law Serv. 18, 18–20 (West) (to be codified as an amendment to Tex.
Fam. Code Ann. § 161.001) (hereinafter cited as Tex. Fam. Code Ann.
§ 161.001(b)). In three issues, Appellant now appeals the termination of his
parental rights to C.Y. We affirm.
II. Termination of Parental Rights
A. Standard of Review
The trial court may order termination of the parent-child relationship if it
finds by clear and convincing evidence that the termination is in the child’s best
interest and the parent has
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 [DFPS] 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.
Id. § 161.001(b)(1)(O), (2); see also id. § 263.106 (West 2014) (stating that after
reviewing the original and any amended service plan and making any changes or
modifications it deems necessary, the court shall incorporate the original and any
amended service plan into the orders of the court and may render additional
appropriate orders to implement or require compliance with an original or
amended service plan).
In his second and third issues, Appellant complains that the evidence was
legally and factually insufficient to terminate his parental rights under subsection
3
O and that the requirements for the unequivocal warning to parents required for
termination under that subsection were not met.
B. Preservation
In order to preserve a legal sufficiency challenge on appeal following a jury
trial, Appellant must raise the challenge with the trial court in one of the following
ways: (1) a motion for instructed verdict; (2) a motion for judgment
notwithstanding the verdict (JNOV); (3) an objection to the submission of the
question to the jury; (4) a motion to disregard the jury’s answer to a vital fact
question; or (5) a motion for new trial. In re D.J.J., 178 S.W.3d 424, 426–27
(Tex. App.—Fort Worth 2005, no pet.); see also Tex. R. Civ. P. 324(b) (listing
appellate complaints that must be preserved by a motion for new trial); T.O.
Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220–21 (Tex. 1992). After
a jury trial, factual sufficiency challenges must be raised in a motion for new trial.
Tex. R. Civ. P. 324(b)(2)–(3); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
Further, the rule of appellate procedure that governs preserving complaints
for appellate review generally requires a party to present to the trial court a timely
request, objection, or motion that states the specific grounds for the desired
ruling if they are not apparent from the context of the request, objection, or
motion. Tex. R. App. P. 33.1(a). If a party fails to do this, error is not preserved,
and the complaint is waived. See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.
1991) (op. on reh’g).
4
The complaint on appeal must be the same as that presented in the trial
court. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). An appellate
court cannot reverse based on a complaint not raised in the trial court. Id.; see
Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998); see also Tex. R.
App. P. 53.2(f); Sonat Exploration Co. v. Cudd Pressure Control, Inc., 271
S.W.3d 228, 236 (Tex. 2008); In re J.T., No. 02-14-00378-CV, 2015 WL
2345511, at *2 (Tex. App.—Fort Worth May 14, 2015, no pet.) (mem. op.)
(concluding that because mother’s express appellate issue did not comport with
her complaint in the trial court, she had failed to preserve it for review).
Appellant argues in his second issue that the evidence is legally and
factually insufficient to support termination under subsection O because the trial
court never made the findings required under Chapter 262 with regard to him.
Jury Question 3, on which the jury based its subsection O finding, stated:
Do you find by clear and convincing evidence that the Father,
[Appellant], 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, [C.Y.], who has been in the temporary
managing conservatorship of [DFPS] for not less than nine months
as a result of the child’s removal from the parent for abuse or
neglect?
At the charge conference during trial, Appellant’s counsel made the following
objection regarding Question 3:
Moving on to Question No. 3. On behalf of [Appellant] we
object to it[]s inclusion in the Charge for the following reasons: We
believe no order has been submitted into evidence that
unequivocally tells [Appellant] what he must do to get return of the
child [C.Y.].
5
In addition, we believe if this is submitted it will cause a denial
of the due process rights of [Appellant] and that it will be an
ambiguous order in which it says, you maybe lose your child or
maybe you don’t lose your child, leaving up to the Court’s potential
[sic] would be where the statute says it must be in [an] unequivocal
order what he must do.
We object to their Question No. 3 being submitted to the jury
at all.
Appellant did not file a motion for instructed verdict, a motion for JNOV, a
motion to disregard the jury’s answer to Question 3, or a motion for new trial
raising the sufficiency of the evidence—factual or legal—to support subsection O
with regard to this or any other issue. See Tex. R. Civ. P. 324(b); D.J.J., 178
S.W.3d at 426–27. And although Appellant objected to Question 3’s inclusion in
the jury charge, his objection did not comport with the argument he now makes
on appeal.3 See Banda, 955 S.W.2d at 272; J.T., 2015 WL 2345511, at *2.
3
Appellant complains that the only chapter 262 finding that the trial court
made was as to the child’s mother and that the trial court never made any
findings that the child was removed under chapter 262 due to any abuse or
neglect by him. But there was nothing in his charge-conference objection to
make the trial court plainly aware of this complaint when he only notified the trial
court of his position that he had no duty to obey the orders that were issued and
not that the evidence was insufficient as to subsection O’s statutory
requirements. Further, we note that the parent who fails to comply with a court
order as required by subsection O need not be the same person whose abuse or
neglect triggered the child’s removal. In re D.R.J., 395 S.W.3d 316, 320 (Tex.
App.—Fort Worth 2013, no pet.); In re D.R.A., 374 S.W.3d 528, 532 (Tex. App.—
Houston [14th Dist.] 2012, no pet.); see In re S.N., 287 S.W.3d 183, 188 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (op. on reh’g) (“Had the legislature
intended such a requirement, it could have easily provided that conservatorship
be ‘as a result of the child’s removal from the parent under Chapter 262 for the
abuse or neglect of the child by the parent.’”). There is no dispute that by the
time of the April 2015 trial, C.Y. had been in DFPS’s temporary managing
conservatorship for over nine months as a result of her removal from her mother
6
Therefore, Appellant has failed to preserve this complaint for our review, and we
overrule his second issue. See In re J.V., No. 02-15-00036-CV, 2015 WL
4148500, at *1–2 (Tex. App.—Fort Worth July 9, 2015, no pet.) (mem. op.)
(overruling father’s legal sufficiency complaint on best interest for lack of
preservation when he did not make or file any of the required motions or object to
the charge on the legal sufficiency of the evidence to support submission of the
best-interest instruction and overruling his factual sufficiency complaints as to
jury’s findings when he failed to preserve these by filing a motion for new trial); In
re G.H., No. 02-14-00261-CV, 2015 WL 3827703, at *5 (Tex. App.—Fort Worth
June 18, 2015, no pet.) (en banc mem. op. on reh’g) (“Because Mother did not
raise her legal sufficiency challenge in the trial court, she has not preserved that
complaint.”); In re A.J.L., 136 S.W.3d 293, 301 (Tex. App.—Fort Worth 2004, no
pet.) (holding that mother waived factual sufficiency complaints as to jury findings
by failing to file a motion for new trial); In re S.R.C., No. 02-02-00426-CV, 2003
WL 22966325, at *2 (Tex. App.—Fort Worth Dec. 18, 2003, no pet.) (mem. op.)
(holding that mother waived her jury-charge points when she made no objection
to the jury charge on a basis that comported with her points); see also Tex. R.
Civ. P. 274 (stating that a party objecting to a charge must point out distinctly the
objectionable matter and the grounds of the objection and that any complaint as
under Chapter 262 for abuse or neglect. See D.R.A., 374 S.W.3d at 532 (stating
that it was irrelevant that the father was not the parent who had abused or
neglected the child, warranting the child’s removal under subsection O).
7
to a question, definition, or instruction, on account of any defect, omission, or
fault in pleading, is waived unless specifically included in the objections); In re
B.L.D., 113 S.W.3d 340, 350, 354 (Tex. 2003) (stating that procedural rules
require that any complaint to a jury charge is waived unless specifically included
in an objection and concluding that due process does not require appellate
review of unpreserved complaints in termination-of-parental-rights cases), cert.
denied, 541 U.S. 945 (2004).
C. Unequivocal Warning Under Subsection O
In his third issue, Appellant argues that subsection O’s “unequivocal
warning” requirement was not met, contending that the service plan 4 provided to
him never affirmatively stated that the completion of the actions listed in the plan
were a necessary requirement for the child’s return. But the trial court
incorporated the requirements of Appellant’s family service plan into its March
13, 2014 order adjudicating C.Y.’s parentage. The March 13, 2014 order stated,
in bold and in a larger font to set it off from the surrounding text, “ The Court
finds and hereby notifies the parents that each of the actions
4
The statutory language of subsection O, as set out in this opinion, does
not mention “service plan” and instead refers to “the provisions of a court order.”
Tex. Fam. Code Ann. § 161.001(1)(b)(O). The trial court admitted into evidence
the March 13, 2014 order adjudicating Appellant’s parentage and setting out the
actions Appellant was ordered to complete. The March 13 order included the
following: “[Appellant] is ORDERED, pursuant to § 263.106 Texas Family Code,
to comply with each requirement set out in the Department’s original, or any
amended, service plan during the pendency of this suit.” The trial court’s
subsequent orders stating, “All other temporary orders remain in full force and
effect except as modified by this order,” were also admitted into evidence.
8
required of them below are necessary to obtain the return of the
child and failure to fully comply with these orders may result in
the restriction or termination of parental rights.” Thus, this order
notified Appellant that the actions listed in the order were necessary to obtain
C.Y.’s return and that failure to fully comply with the orders could result in the
termination of his parental rights.
Immediately following this notification, with Appellant’s name in caps and
bold, the order listed specific directives with which Appellant was required to fully
comply.
1. Specific Directives
a. Counseling
Appellant was ordered to “cooperate fully” in weekly counseling sessions
as follows:
IT IS ORDERED that [Appellant] shall attend and cooperate
fully in weekly counseling sessions through Cumberland Children’s
Home . . .[5] to address the specific issues that led to the removal of
the child from the home and any additional issues arising from the
counseling sessions. [Appellant] shall [contact] Cumberland
Children’s Home . . . within 7 days of this Order being entered by the
Court[] to schedule the first appointment. Said counseling sessions
shall continue until the counselor determines that no further sessions
are necessary or until further order of this Court. [Appellant] shall
cooperate fully in any and all recommendations made through these
counseling sessions.
5
In the interest of brevity, we have excluded addresses and phone
numbers of service providers, although these were included in the order.
9
After attending twelve of the seventeen scheduled appointments, Appellant
was unsuccessfully discharged from counseling. The counselor reported that
although he attempted during the sessions to address Appellant’s past criminal
history, past drug history, past domestic-violence problems, and current working
situation, Appellant would discuss only his hatred for DFPS, insisting that he did
not need to work the court-ordered services because he had never hurt a child.
Appellant was described as generally belligerent and hostile during the sessions,
and during the final session, the counselor reported that he feared for his own
safety. Although his counselor attempted to help Appellant develop a childcare
plan because of the long hours that Appellant worked as a cement truck driver,
Appellant kept repeating, “That is common sense. I’ll just drop her off at the
babysitter.”
Although Appellant had been ordered to “cooperate fully in any and all
recommendations made through these counseling sessions” (emphasis added),
his counselor recommended filial therapy, and Appellant participated in only four
filial therapy sessions before he was unsuccessfully discharged. Filial therapy
had been recommended as a means to increase bonding and attachment
between Appellant and C.Y. by teaching him hands-on parenting skills and
providing him more time with her. Appellant’s caseworker reported that even
though she pointed out to him that participation in filial therapy sessions would
give him an extra hour of visitation a week with C.Y., Appellant had been very
reluctant to consider it and had initially inquired if he could just “write a check and
10
be done with it.” Although Appellant claimed during trial not to recall the portion
of the order that required him to follow the recommendations from his service
providers, Appellant did admit that he knew he had been ordered by the court to
participate in filial therapy. And although he had assured the court that he was
willing to participate in filial therapy, he admitted that—for reasons unknown to
him6—he had been unsuccessfully discharged from the program.
b. Drug and Alcohol Assessment
Appellant was ordered to “cooperate fully” in drug and alcohol assessment
and follow all recommendations from that assessment, as follows:
IT IS ORDERED that [Appellant] shall participate in a
drug/alcohol assessment with First Steps of Denton County
Outreach Program (First Steps) . . . . [Appellant] shall contact (First
Steps) . . . within 7 days of this Order being entered, to schedule
6
The clinical therapist who conducted the four filial therapy sessions that
Appellant attended explained that she discharged him because she had not seen
C.Y. progress as necessary to secure her placement with Appellant, because
she had not seen Appellant follow the directions she gave him to make his
relationship with C.Y. more sound and because she personally did not feel
comfortable around Appellant, describing him as “a boiling pot” ready to explode.
In her notes, which were admitted into evidence during trial, the therapist stated
that because she expected the report to be shared with Appellant,
it will only increase my apprehensions and feelings of never truly
feeling safe around him. I am recommending that if he continues
with any filial therapy, that he find a male therapist skilled with anger
management-violence intervention techniques to best help
[Appellant] recognize how he is perceived by others; especially if his
future has him interacting with daycare/school personnel, parents of
other children, pediatricians and dentists, and the other adults
associated with raising a child.
11
said assessment and shall submit to and cooperate fully in the
preparation of the assessment. [Appellant] shall follow any and all
recommendations from that assessment.
Although Appellant completed this service by submitting to an
assessment,7 he failed to fully follow the assessment recommendations. The
evaluation recommended that he attend AA/NA meetings three times per week,
but, as discussed below, Appellant stopped attending those meetings after three
months.
c. AA/NA Meetings
Appellant was ordered to attend AA/NA meetings three times per week, by
virtue of both the recommendation of First Steps and by explicit order of the trial
court:
IT IS ORDERED that [Appellant] shall attend and participate in
not fewer than 3 AA/NA meetings per week until entering drug
treatment and shall document his attendance to his caseworker . . .
monthly. Said attendance shall begin within one week of the signing
of this order.
Appellant admitted at trial that he only attended AA/NA meetings from July
27, 2014 to September 24, 2014. By way of explanation, Appellant testified that
AA/NA was not for him because he was not powerless over alcohol and did not
7
The evaluation revealed that Appellant had a proclivity for relationships
with drug-addicted women who had open or recently-closed DFPS cases.
12
have to drink. He also acknowledged that he had consumed alcohol during the
case even though he knew he had been ordered not to do so.8
d. Safe, Stable, and Appropriate Housing
The trial court ordered Appellant to establish and maintain safe, stable,
and appropriate housing for a period of at least six months:
IT IS ORDERED that [Appellant] shall establish and maintain
safe, stable and appropriate housing for a period of at least six
months and continuing through the pendency of this suit.
Additionally, in October 2014, the trial court ordered him to “thoroughly
deep clean his home and childproof it to CASA and the Department’s
satisfaction.”9 As an incentive, the trial court’s order provided that once Appellant
cleaned and childproofed the house (and began actively participating in filial
therapy), his supervised visits would be increased to four hours per week and
could take place in his home.
To assist him in knowing exactly what would be expected in order for
Appellant to be in compliance with this order, Cindy Parker, Appellant’s DFPS
caseworker, gave him a specific checklist of tasks necessary to accomplish a
deep clean and achieve a childproof condition for his home.
8
Appellant was also ordered to submit to random drug testing, but these
requirements were not addressed at trial.
9
This order arose from concerns expressed after a home visit revealed
excessive dirt on the floors and multiple safety hazards in the home.
Photographs of the reported conditions were admitted into evidence at both the
hearings that resulted in the order and the trial.
13
One of the identified hazards was a gas heater located on a wall in the
room designated to be C.Y.’s bedroom. When Parker expressed concern about
it, Appellant explained that it did not work. Nevertheless, Parker described it as
“pos[ing] a threat all by itself, working or not, because it[’]s a metal box that has
very sharp corners,” and she asked him to cover it. Approximately three months
prior to trial, he had completed this, along with every other task on Parker’s list.10
Additionally, in response to concerns voiced by the trial court judge,
Appellant put his pit bull terrier in an outdoor pen when Parker, the court-
appointed special advocate (CASA) worker, or C.Y. visited his home. 11 Despite
the dog’s history of aggression toward children and other dogs,12 Appellant told
Lindsey Barnes, the CASA worker, that he felt it was his duty to protect the dog
“as much as it was to protect [C.Y.].” And while Appellant had previously
10
Other tasks included removing a dangerous extra shower curtain in the
bathroom, replacing missing wood slats and installing railing on the back porch,
securing the hanging mini-blind cords to prevent a choking hazard for toddlers,
and covering sharp corners of a table in C.Y.’s room with corner bumpers.
11
During a preliminary hearing, the trial judge had admonished Appellant
that until her concerns about the dog, which had previously bitten an adolescent
girl on her face, requiring five stitches, were allayed, the dog should remain
outside during C.Y.’s visits.
12
The dog had also either bitten or scratched the two-year-old daughter of
a woman who, along with her three children, lived with Appellant between 2006
and 2008. Whether bite or scratch, the wound resulted in a permanent facial
scar. The woman did not seek medical treatment for her daughter until CPS
intervened. Appellant also had a $1,814.46 small claims judgment against him
resulting from a lawsuit that his aunt brought against him after his dog allegedly
attacked her dog.
14
admitted to Barnes that the dog did not like arguments and that “if two people are
arguing, somebody’s going to get bit,” Appellant’s trial strategy, as he related it to
Barnes, would be to prove to the court that the dog was not dangerous. His plan
for proving this involved having his friends bring their children over to play with
the dog so that he could record it and show the recording to the judge.
At trial, both Parker and Barnes also related other concerns about the
safety, stability, and appropriateness of Appellant’s home and why, even with his
efforts to improve the home, they were not satisfied that the home was safe,
stable, or appropriate for C.Y. For example, upon the discovery of watermelon
vodka in his refrigerator during an unannounced visit, Appellant attributed
ownership of the alcohol to one of his “lady friends.” And when further pressed
by Parker as to whether he allowed women to just come into his house with
alcohol, he denied allowing women to just come in, clarifying that they did not
wander around the house but rather would “walk straight in the front door and
right to [his] bedroom.” And, despite Appellant’s contention that he was using the
internet dating service PlentyofFish.com to try to meet women who could help
him raise C.Y., according to Barnes, who accessed the website, Appellant had
actually represented in his online profile that all of his children were over
eighteen and that he was unsure as to whether he wanted to have more.
e. Alcohol Consumption
Another requirement that Appellant failed to meet was the order to refrain
from the use or consumption of alcohol:
15
IT IS ORDERED that [Appellant] shall refrain from the use or
consumption of any alcoholic beverage.
During trial, Appellant acknowledged not only that he had consumed alcohol
during the case, despite having been ordered not to do so, but also that he had
consumed alcohol on the Saturday prior to the May 1, 2014 permanency hearing.
When questioned about this at the May 1, 2014 hearing, Appellant admitted that
he understood the trial court’s orders but nonetheless chose to imbibe:
Q. And you understand your orders, temporary orders say
that you need to abstain from drugs and alcohol.
A. Right, but one beer. When was the last time I was drunk,
was at Thanksgiving.
Q. Okay. So that’s not my question, when did you get drunk.
The last time you drank was last weekend?
A. Yes, ma’am, I drank one beer.
f. Visitation, Child Support, and Medical Support
Appellant was also ordered to comply with the order’s attachments
pertaining to visitation, child support, and medical support. Attachment A
addressed visitation, stating, in pertinent part,
IT IS ORDERED that [Appellant], Temporary Possessory
Conservator appointed in this Order shall have visitation with the
child, [C.Y.], as follows: one hour supervised visitation every week
with the aforementioned child, [C.Y.], at the Denton [DFPS]
Office . . . or an alternative location as designated by [DFPS] . . . .
Attachment B, pertaining to child support, provided:
16
Pursuant to Section 154.001, Texas Family Code, the Court
finds that [Appellant] is obligated to support [C.Y.], the child the
subject of this suit.
IT IS ORDERED that [Appellant] shall pay to [DFPS] for the
support of the child, [C.Y.], $50.00 per month, with the first
installment being due and payable on the 1st day of the month . . .
and a like installment due and payable on the 1st day of each month
thereafter until further order of this Court.
IT IS FURTHER ORDERED that all child support payments
are to be made through the Texas Child Support Disbursement Unit,
P.O. Box 659791, San Antonio, Texas 78265-9791, for distribution
by that agency to [DFPS] for the support of the child. All payments
shall be identified by obligor name, obligee name, cause number of
this case and the date on which the payment is made.
While Appellant met the visitation requirement, and, as a result, saw his visitation
increase during the case in subsequent orders,13 he failed to meet the child
support requirement.
At trial, Appellant acknowledged that he knew he had been ordered to pay
child support but that he only made three or four payments. He explained that
even though the order remained in effect, after several checks had been returned
to him from the Attorney General’s office, he stopped paying. And despite the
fact he had hired an attorney more than a year prior to trial to represent him in
13
On October 27, 2014, the trial court extended the case’s dismissal date
after finding that Appellant required additional services and that DFPS believed
that it was in C.Y.’s best interest to give Appellant additional time to complete his
service plan.
17
the case, other than to ask two unidentified people in the hallway what he should
do,14 he never attempted to resolve the problem with the returned checks.15
Attachment C ordered Appellant to pay DFPS $25 per month in medical
support as additional child support. For the same reasons Appellant gave
regarding his failure to make child support payments, he failed to meet the
medical support requirement as well.
2. Discussion
While Appellant complied with many of the trial court’s March 13, 2014
orders,16 the language in the order as set out above expressly notified Appellant
14
According to Appellant, the two people he asked “blew it off” and told him
“don’t worry about it.”
15
Asked why he did not go to the DFPS office and say “[h]ere is my cause
number, here is my child support check, help me figure out what is going on,”
Appellant testified, “I wasn’t ever going to do that.”
16
Appellant was ordered to “cooperate fully” in a mental health
assessment, and he completed this service. His mental health records from
2006, which were admitted into evidence, reflected that he had previously been
diagnosed with major depressive disorder, bipolar, and other substance-induced
mood disorder. The records also contained an admission by Appellant that he
had a temper that his girlfriend could not handle and that he had been physically
aggressive towards her.
Appellant was ordered to complete the FOCUS Fatherhood Program,
which he completed.
Appellant was ordered to participate in the Batterer Intervention Prevention
Program (BIPP) because of “his assault[-]family violence history with multiple
females,” including his previous DFPS history as an alleged batterer, and C.Y.’s
mother’s allegations in April 2013 about having been beaten by him when she
was pregnant with C.Y. Although Appellant completed BIPP, he complained that
he had already been through this service once and remained unpersuaded that
18
that “each of the actions” listed in the order were “necessary to obtain the return
of the child” and that failure to “fully comply” could cost him his parental rights.
This provision, set forth in bold and large font, clearly and explicitly warned of the
necessity of complying with the trial court’s orders in full. The March 13, 2014
order, as well as the subsequent orders, established with particularity the actions
necessary for the child’s return.17 The subsequent orders clearly provided that all
of the trial court’s orders, except as modified, remained in full force and effect.
Although Appellant takes issue with the trial court’s use of the word “may”
preceding the warning of potential consequences for failure to fully comply with
the orders, in light of the supreme court’s disposition in In re J.F.C., 96 S.W.3d
256, 277 (Tex. 2002), we conclude that the trial court’s orders were sufficiently
concrete to avoid a violation of his due process rights.
In J.F.C., the supreme court implicitly held that the order was sufficiently
specific under subsection O when “[e]ach order specifically advised the parents
that failure to provide a safe environment within a reasonable time could result in
these were skills he needed to learn as a parent. While his criminal records do
reflect that he was ordered to attend BIPP as part of his community supervision
in 1996, the records also list his failure to complete it as one of the bases for
revocation of his community supervision.
Appellant was ordered to establish and maintain employment and to refrain
from engaging in criminal activities, using illegal drugs, or having unsupervised
contact with children under sixteen. He met all of these requirements.
17
The filial therapy recommendation was expressly incorporated into the
court’s October 27, 2014 order.
19
restriction or termination of their parental duties and rights or the children not
being returned to them” and directed each parent to perform specific acts. Id.
(emphasis added). The supreme court held that while the parents had partially
complied with some of the provisions and offered excuses for noncompliance for
others, their complete and indisputable failure to comply with payment of monthly
child support (although capable of doing so) and their failure to attend any anger
control classes or parenting classes and to submit to individual psychiatric
evaluations and random drug tests conclusively established as a matter of law
that they had failed to comply with the court’s orders specifying the actions they
had to take for DFPS to return the children to them. Id. at 277–79. See
generally In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.)
(stating that subsection O does not quantify any particular number of provisions
of the family service plan that a parent must not achieve in order for the parental
rights to be terminated, does not quantify the degree of a parent’s conduct that
will be deemed a failure to achieve a particular plan requirement, does not
encompass an evaluation of a parent’s partial achievement of plan requirements
in order to determine whether or not the parent failed to comply with the plan,
and does not make a provision for excuses for the parent’s failure to comply with
the family service plan); In re C.M.C., 273 S.W.3d 862, 875 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (op. on reh’g) (“Texas courts have held that substantial
compliance is not enough to avoid a termination finding under section
161.001([(1)](O).”).
20
As for Appellant’s contention that there was no evidence during the trial or
throughout the pendency of the case that he was ever informed that it was
necessary for him to complete all of the actions listed in the service plan, this
argument does not find support in the record. On multiple occasions during trial,
Appellant testified he understood exactly what the trial court had ordered him to
do but nevertheless failed to perform as ordered. The record of each hearing
prior to trial also demonstrates that Appellant understood exactly what he was
supposed to do and why.
At the outset, during the first hearing, the trial judge spoke directly to
Appellant, who at that point was representing himself:
THE COURT: And so the Court will admonish you,
[Appellant], that the [DFPS] service plan 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. The
Court will review whether or not progress has been made under the
service plan at all subsequent hearings. This review will include
whether you have acquired or learned any specific skills or
knowledge stated 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. Do
you understand that, sir?
[Appellant]: Yes, ma’am.
....
THE COURT: . . . I would just further add that the things that
you will be asked to do and are being asked to do under the service
plan all contribute to whether or not this Court will determine at some
future date whether or not you are an appropriate person to parent
your child. Do you understand that?
21
[Appellant]: Yes, ma’am.
THE COURT: Okay. So whether there are some things in
there you think aren’t necessary or that you like to do or don’t like to
do is really irrelevant. What matters is all of that works together to
allow this Court to have some determination about whether or not
you would be an appropriate person to parent your child. Do you
understand that?”
[Appellant]: (Nods head.)
Just a few months later, at the permanency hearing, Appellant testified that
he understood that DFPS, the court, the CASA worker, and the child’s ad litem
attorney had to feel confident that he had the necessary skills to take care of an
infant, and he acknowledged that at that point all the trial court had to go on was
what Appellant’s history reflected.18 Toward the conclusion of that hearing, the
18
Appellant’s criminal records from 1995 to 2009, which were admitted into
evidence during the trial and discussed at the hearing, illustrate a history of
assaults, violations of protective orders, and other offenses ranging from
misdemeanors to felonies, many guilty pleas in exchange for community
supervision, and the revocation of community supervision based on his failure to
comply with the court’s terms and conditions (including the order that he remain
drug-free). In 2001, he was sentenced to four years’ confinement for possessing
a prohibited weapon (incendiary bomb—Appellant testified that it was a Molotov
cocktail but denied that he had taken it over to his ex-wife’s house) and assault
on a public servant. In 2004, he was convicted of assault-family violence after
pleading guilty and was sentenced to two years’ confinement. In 2009, Appellant
was convicted of driving while intoxicated and received fifteen months’
community supervision, which was revoked five months later when he admitted
to having tested positive for drugs, among other violations. During the case,
Appellant remained steadfast in the notion that his past should not matter and
that, as he told one of the caseworkers, “just because he has criminal history [of]
assaulting adults that that doesn’t mean he will assault a child.”
The trial court, DFPS, the CASA worker, and the child’s ad litem attorney
were also aware of Appellant’s history and involvement with C.Y.’s mother due to
22
trial court once again admonished Appellant, “Just so long as we’re clear here,
everything that’s in that Service Plan that you’ve been asked to do, this Court
expects you to do.”
Four months after that, at the conclusion of the October 23, 2014 hearing,
the trial court repeated the admonitions, yet again reminding Appellant of the
obligatory nature of the court’s directives:
THE COURT: Now, here are things I want you to do,
[Appellant], and these are not suggestions, these are orders, okay?
And I know there’s been things I’ve asked you to do, and you
haven’t done them, and I want you to understand I’m not coming up
with this stuff to make you miserable.
I’m asking you to do these things because here is what I have
to live with and what I have to make a decision about at the end of
this, and that is that this baby girl of yours is taken care of.
Do you understand that?
[Appellant]: Yes, ma’am.
....
THE COURT: The other thing, we’ve discussed the filial
therapy, and that’s a big word for teaching somebody how to be a
good parent is what it is. You haven’t done that.
I’m not happy about that, not a bit happy you haven’t done
that, because we had a discussion about that very specifically here
her earlier CPS case. The caseworker testified that DFPS discovered that C.Y.’s
mother was living with Appellant when she showed up for a parent-child visit and
“had some marks and bruises on her arms and she was very upset because of a
domestic violence situation between her and [Appellant].” When questioned
about this, Appellant denied that the family violence incident had occurred,
stating that “if police weren’t called then it didn’t happen.”
23
where I told you that you may not think it’s important, but I think it’s
important, and it’s important for your daughter.
At the end of the day, she’s the only one I really care about,
okay? So you are going to do filial therapy.
The other thing that has to happen before you have these
four-hour extended visits on Sunday, you are going to have to get
enrolled in filial therapy. My understanding how that should happen
is that is a therapy that you are supposed to participate in with your
daughter. In other words, you don’t go sit in some therapist’s office;
you are supposed to participate in that with your child.
So that will have to be set up either on your Sunday afternoon
that we do some of that therapy or some other time, but that is
something you have to demonstrate to me that you are going to do
by being enrolled in that class.
....
These things -- I want to be clear: These things we talk about
in court, these are not suggestions, these are things you do until we
decide you can be a father.
You don’t get to pick and choose what you’re going to do.
You understand that?
[Appellant]: Yes, ma’am.
At each point along the way, Appellant was advised that the trial court’s
directives were mandatory, not advisory, and at each point, Appellant assured
the trial court that he understood her admonitions.
For all of the above reasons, Appellant’s third issue, that he was not
affirmatively notified in compliance with subsection O that completion of the
actions listed in the plan was a necessary requirement for the child’s return, is
24
overruled. Based upon our resolution of Appellant’s second and third issues, we
do not reach his first issue.19 See Tex. R. App. P. 47.1.
III. Conclusion
Having overruled Appellant’s dispositive issues, we affirm the trial court’s
judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
DELIVERED: October 22, 2015
19
In his first issue, Appellant complains that the evidence was legally and
factually insufficient to support DFPS’s retention of conservatorship when no
evidence was presented at the April 24, 2014 permanency hearing that would
have prevented the child’s return to him under family code section 262.201(b)(1).
Even if our resolution of Appellant’s second and third issues did not moot this
issue, Appellant failed to adequately preserve it for our review when neither of his
motions to modify temporary orders and request for placement and monitor
referenced section 262.201, and he merely asked the trial court for “some
possession of the child.” See Tex. R. App. P. 33.1.
25