in the Interest of J.L.W., a Child

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00141-CV
IN THE INTEREST OF J.L.W., a Child
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2020-PA-01086
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: September 22, 2021
AFFIRMED
B.O. appeals the trial court’s order terminating her parental rights to her child J.L.W. (born
2019). 1 B.O. argues the evidence is legally and factually insufficient to support the trial court’s
findings under Texas Family Code section 161.001(b)(1). We affirm.
BACKGROUND
On June 1, 2020, the Texas Department of Family and Protective Services removed J.L.W.
after receiving referrals alleging drug use by both parents and domestic violence, including one
incident in which J.L.W. was allegedly used by B.O. as a shield. The Department obtained
temporary managing conservatorship over J.L.W., placed J.L.W. in a foster home, and filed a
1
To protect the privacy of the minor child, we use initials to refer to the child and his biological parents. TEX. FAM.
CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
04-21-00141-CV
petition to terminate B.O.’s parental rights. The Department also created a family service plan
requiring B.O. to, inter alia, attend individual therapy, seek psychiatric treatment, attend parenting
classes, complete a psychological evaluation, provide proof of housing and employment, and
submit to random drug testing as a condition of reunification. The Department ultimately pursued
termination of B.O.’s parental rights.
On March 4, 2021, approximately nine months after removal, the trial court held a one-day
bench trial. The trial court heard testimony from three witnesses: (1) the Department’s caseworker
Glory Bishop (Bishop); (2) the appellant, B.O.; and (3) the father, M.W. At the conclusion of trial,
the court signed an order terminating B.O.’s parental rights pursuant to section 161.001(b)(1)(N)
(constructive abandonment), (O) (failure to comply with provisions of court order), and (P) (use
of a controlled substance in a manner endangering child’s health or safety) and made a finding that
termination of B.O.’s parental rights was in the best interests of J.L.W. 2 On appeal, B.O. challenges
the legal and factual sufficiency of the evidence supporting the trial court’s predicate findings
under section 161.001(b)(1).
STANDARD OF REVIEW
The involuntary termination of a natural parent’s rights implicates fundamental
constitutional rights and “divests the parent and child of all legal rights, privileges, duties, and
powers normally existing between them, except for the child’s right to inherit from the parent.” In
re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied) (internal quotation
marks omitted). “As a result, appellate courts must strictly scrutinize involuntary termination
proceedings in favor of the parent.” Id. The Department had the burden to prove, by clear and
convincing evidence, both that a statutory ground existed to terminate B.O.’s parental rights and
2
Although M.W. did not appeal, the trial court also terminated his parental rights.
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that termination was in the best interests of the children. TEX. FAM. CODE § 161.206; In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003). “‘Clear and convincing evidence’ means the measure or degree
of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.” TEX. FAM. CODE § 101.007; In re S.J.R.-Z., 537
S.W.3d at 683.
When reviewing the sufficiency of the evidence supporting a trial court’s order of
termination, we apply well-established standards of review. See In re J.F.C., 96 S.W.3d 256, 263
(Tex. 2002). To determine whether the Department presented clear and convincing evidence, a
legal sufficiency review requires us to “look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true.” Id. at 266. We “assume that the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could do so.” In re R.S.-T., 522 S.W.3d 92,
98 (Tex. App.—San Antonio 2017, no pet.). “A corollary to this requirement is that a court should
disregard all evidence that a reasonable factfinder could have disbelieved or found to have been
incredible.” In re J.F.C., 96 S.W.3d at 266. Nevertheless, “we may not simply disregard
undisputed facts that do not support the finding; to do so would not comport with the heightened
burden of proof by clear and convincing evidence.” In re S.L.M., 513 S.W.3d 746, 748 (Tex.
App.—San Antonio 2017, no pet.). If a reasonable factfinder could form a firm belief or conviction
that the matter that must be proven is true, then the evidence is legally sufficient. Id. at 747.
In contrast, in conducting a factual sufficiency review, we must review and weigh all the
evidence, including the evidence that is contrary to the trial court’s findings. In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009). We consider whether the disputed evidence is such that a reasonable
factfinder could not have resolved it in favor of the challenged finding. In re J.F.C., 96 S.W.3d at
266. The evidence is factually insufficient only if “in light of the entire record, the disputed
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evidence that a reasonable factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or conviction.” Id.
In both legal and factual sufficiency review, the trial court, as factfinder, is the sole judge
of the weight and credibility of the evidence. In re A.F., No. 04-20-00216-CV, 2020 WL 6928390,
at *2 (Tex. App.—San Antonio Nov. 25, 2020, no pet.) (mem. op.). We must defer to the
factfinder’s resolution of disputed evidentiary issues and cannot substitute our judgment for that
of the factfinder. See, e.g., In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (factual
sufficiency); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency).
STATUTORY TERMINATION GROUNDS
Applicable Law
In her sole argument on appeal, B.O. challenges the legal and factual sufficiency of the
evidence to support the trial court’s predicate findings under subsections N, O, and P. When, as
here, the trial court terminates a parent’s rights on multiple predicate grounds, we may affirm on
any one ground. In re A.V., 113 S.W.3d at 362; In re D.J.H., 381 S.W.3d 606, 611–12 (Tex. App.—
San Antonio 2012, no pet.).
To terminate parental rights under section 161.001(b)(1)(O), the trial court must find, by
clear and convincing evidence, that the parent “failed to comply with the provisions of a court
order that specifically established the actions necessary for the parent to obtain the return of the
child who has been in the permanent or temporary managing conservatorship of the Department []
for not less than nine months as a result of the child’s removal from the parent under Chapter 262
for the abuse or neglect of the child.” TEX. FAM. CODE § 161.001(b)(1)(O). “Texas courts have
held that substantial compliance is not enough to avoid a termination finding under section
161.001(O).” In re C.A., No. 04-15-00582-CV, 2016 WL 805550, at *5 (Tex. App.—San Antonio
Mar. 2, 2016, pet. denied) (mem. op.).
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Application
After J.L.W.’s removal, the trial court incorporated the Department’s family service plan
into a court order. As a condition of reunification, B.O. was asked to attend individual therapy;
take parenting classes; complete a psychiatric or psychological evaluation; provide proof of
housing and employment; and submit to random drug testing and assessment. Bishop testified she
communicated the requirements of the court-ordered service plan, in addition to service referrals,
through a phone call, text message, and email in June of 2020.
At trial, Bishop outlined that B.O. was not compliant with the family service plan, other
than completing the psychological evaluation. According to Bishop, B.O. made no efforts to
comply with requirements for drug treatment, therapy, or domestic violence classes. Nor did B.O.
attend parenting classes, which are readily available for online attendance. B.O. also failed to
maintain communication with the Department after removal, making it difficult to verify proof of
stable housing or employment.
Additionally, Bishop testified that B.O. admitted to using methamphetamines, and on
September 23, 2020, B.O. tested positive for amphetamines and methamphetamines. She was
arrested twice for separate drug-related charges in November 2020—during the pendency of the
case. After testing positive, B.O. denied use and theorized that she tested positive because she was
around people that “probably” used drugs, causing her to be positive; however, there is
uncontroverted testimony this is not a possible explanation for the hair follicle tests administered
to B.O.
B.O. does not dispute that her child was in the Department’s custody for at least nine
months at the time of trial. Instead, she argues she did not complete her service plan for reasons
outside of her control. B.O. testified she told Bishop to communicate with her by email but did not
receive emails from the Department “probably” until three or four months after J.L.W.’s removal
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because Bishop’s emails “were going to my spam.” She also testified that she was on a waiting list
to start engaging in services and maintained stable housing. She denied current drug use, although
at the removal stage she had admitted to using methamphetamines; she tested positive for
amphetamines and methamphetamines approximately four months before trial; and she missed
subsequently scheduled drug tests. She testified she missed additional drug test appointments
because they conflicted with her work, although she never provided evidence of employment to
the Department, which was another condition of her family service plan.
It is undisputed that B.O. failed to complete certain terms of her court-ordered family
service plan. After reviewing the evidence under the appropriate standards of review, we conclude
that a factfinder could reasonably have formed a firm belief or conviction that B.O. failed to
comply with all the terms of a court-ordered service plan. We therefore hold legally and factually
sufficient evidence supports the trial court’s finding that B.O. violated section 161.001(b)(1)(O),
and overrule her arguments to the contrary.
CONCLUSION
Because there is legally and factually sufficient evidence of at least one predicate ground
supporting termination, we affirm the trial court’s order of termination.
Lori I. Valenzuela, Justice
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