in the Interest of I.G. and R.C. Jr., Children

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00406-CV

In the Interest of I.G. and R.C., Jr., Children

From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-01929
Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice

Delivered and Filed: November 25, 2015

AFFIRMED

V.C. and R.C. 1 argue the evidence is legally and factually insufficient to support the trial

court’s order terminating their parental rights to their children, I.G. and R.C., Jr. We affirm.

BACKGROUND

On August 13, 2014, the Department filed a petition to terminate the parental rights of V.C.

(hereinafter, “Mother”) and R.C. (hereinafter, “Father”). On the same day, the Department of

Family and Protective Services obtained an order authorizing the emergency removal of I.G. and

R.C. from Mother and Father’s home. At the time, I.G. was eight, and R.C. was four.

1
To protect the identity of the children, we do not use the parties’ names. See TEX. FAM. CODE ANN. § 109.002(d)
(West 2014); TEX. R. APP. P. 9.8(b)(2).
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On September 18, 2014, the trial court held an adversary hearing and ordered Mother and

Father to comply with each requirement set out in the Department’s service plan. On October 1,

2014, the trial court held a status hearing, approved the Department’s service plan, and made it an

order of the court. The service plan, which was filed with the trial court clerk, required Mother and

Father to (1) complete an approved drug and alcohol assessment and follow all recommendations

of substance abuse professionals; (2) provide a certificate of completion from an approved

parenting program; (3) provide a certificate of completion from the empowerment classes held at

the Casey Social Services, San Antonio, Texas; (4) demonstrate the ability to maintain an

appropriate, safe, stable, and hazard free home environment; (5) complete a psycho-social

assessment and follow all recommendations from mental health professionals; (6) participate in

individual, couples, and family counseling as recommended with an approved therapist; (7)

participate in parent-child visitation; (8) participate in random drug testing as specified by the

Department; and (9) stay in contact with a Department caseworker, providing addresses and phone

numbers.

On June 11, 2015, the case was tried to the court. The trial evidence showed the children

were removed from their parents’ home based on allegations that Mother and Father were using

illegal drugs. Additionally, the family’s home had no electricity and no refrigerator, and the

youngest child, R.C., had extensive tooth decay. In November 2014, after the service plan had

been filed with the court, Mother admitted to a Department legal supervisor, Richard Garza, that

there had been heroin and methamphetamine use. Because of the severity of the drug use, Garza

told Mother to go directly to Lifetime Recovery for inpatient drug treatment, and provided her

with contact information for the program. Garza also told Father to seek drug treatment from

Lifetime Recovery. Neither Mother nor Father contacted Lifetime Recovery. Two months later,

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Garza referred Mother to another drug treatment program, Alpha Home. Mother did not contact

that program either.

Thereafter, Mother and Father participated in supervised visits with the children and drug

testing. Mother and Father reported to all drug tests as requested by the Department. On one

occasion, drug tests were administered in the middle of a visit with the children. These tests showed

that Mother and Father were positive for methamphetamines. Because of the positive drug test

results, the visit was immediately ended.

A Department caseworker, Wesley Hibbits, testified that the Department’s main concern

in this case was the parents’ drug use. There was no indication that Mother or Father were dealing

with their drug problems. Neither parent had completed a drug assessment or participated in any

kind of drug treatment. Hibbits was aware that Mother and Father had moved to a new house, but

he had not visited the new house. Hibbits explained that it was futile for him to screen the parents’

home until they had taken steps to address their drug use. Hibbits stated that Mother and Father

had attended only one counseling session with a Department-approved counselor.

Mother testified that she understood the children had been removed from her home because

of allegations that she and Father were intravenous drug users. Mother admitted to using heroin

twice, methamphetamines three times, and marijuana once while this case was pending. Mother

also admitted to using prescription drugs that were not prescribed for her during the same time

period. In particular, Mother said she had obtained Klonopin from her adult son. Mother claimed

that no one ever told her to obtain a drug assessment. Nevertheless, Mother acknowledged that the

Department referred her to Alpha Home, which is a residential drug treatment facility. Mother said

that she was homeless when she received the referral to Alpha Home and had nowhere to go; she

did not follow up with the Department’s referral because she had found a place to stay. Mother

also stated that Garza gave her a referral to a counselor.
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Mother acknowledged that she had had prior cases with the Department. According to

Mother, this was the first time that she was not given a copy of the service plan. However, Mother

confirmed that Garza and Hibbits had talked to her about the items on her service plan. Mother

said she did complete her parenting classes, and she went to one counseling session with a

Department-approved counselor.

During his testimony, Father denied using drugs while the case was pending. Father did

not know why he tested positive for methamphetamines during his visit with the children. Father

was not aware of any illegal drug use by Mother. Father acknowledged that he had talked to the

Department during the pendency of this case, but he claimed he was never told to go to Lifetime

Recovery for inpatient drug treatment. Father also said he was not aware of any of the items on his

service plan, except for the parenting classes. Father noted that he did complete the parenting

classes. Father claimed that the first time he ever saw the service plan was on the day of trial.

According to Father, he did all that was requested of him by the Department.

In his testimony, Hibbits confirmed that Mother and Father were never given a copy of the

service plan in this case. Hibbits was not the original caseworker on the case, and he did not make

the initial visit to Mother and Father’s home following the children’s removal. Hibbits indicated

that if he had performed the initial visit with Mother and Father, he would have printed a copy of

the service plan and provided it to them at that time. Hibbits further testified that during a hearing

held in January 2015, everyone was made aware that Mother and Father had not been given a copy

of the service plan. According to Hibbits, he was unable to provide Mother and Father with a copy

of the service plan immediately after the hearing because he did not have his printer with him and

he did not have access to the computers at the courthouse. Hibbits stated that he had advised

Mother and Father of the services they needed to perform and where they had to go to obtain those

services. Hibbits also testified that he had called the service providers to see if Mother and Father
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were participating in their services. Hibbits learned that Mother and Father were participating in

some of their services; however, he had not received verification from any service provider that

Mother or Father had successfully completed any of their services. Hibbits said he had seen a

certificate stating that Mother had completed her parenting classes.

The trial court took judicial notice of the service plan, which was filed with the trial court

clerk on October 1, 2014.

After hearing all the evidence, the trial court determined that Mother and Father’s parental

rights should be terminated. In its termination order, the trial court found that Mother (1)

knowingly placed or knowingly allowed the children to remain in conditions or surroundings

which endangered their physical or emotional well-being; (2) failed to comply with the provisions

of a court order that specifically established the actions necessary for her to obtain the return of

the children; and (3) used a controlled substance in a manner that endangered the health or safety

of the children and failed to complete a court-ordered substance abuse program. See TEX. FAM.

CODE ANN. § 161.001(1)(D),(O),(P) (West 2014). The trial court found that Father (1) knowingly

placed or knowingly allowed the children to remain in conditions or surroundings which

endangered their physical or emotional well-being; and (2) failed to comply with the provisions of

a court order that specifically established the actions necessary for Father to obtain the return of

the children. See id. § 161.001(1)(D),(O). The trial court also found that termination of the parent-

child relationship, as to each parent, was in the children’s best interest. See id. § 161.001(2).

On appeal, Mother and Father challenge the sufficiency of the evidence to support the trial

court’s findings as to each of the grounds under section 161.001(1), and as to best interest of the

children.

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APPLICABLE LAW AND STANDARDS OF REVIEW

Termination of parental rights under section 161.001 of the Texas Family Code requires

proof by clear and convincing evidence that the parent committed one of the acts or omissions

listed in section 161.001(1)(A)-(T) and that termination is in the child’s best interest. Id.

§ 161.001(1),(2). 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). Only one predicate finding

under section 161.001(1) is necessary to support a termination order when there is also a finding

that termination is in the child’s best interest. In the Interest of A.V., 113 S.W.3d 355, 362 (Tex.

2003).

In reviewing the legal sufficiency of the evidence in a parental termination case, we

consider all of the evidence in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a strong belief or conviction that its finding was true. In

the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. If we

conclude that no reasonable factfinder could form a firm belief or conviction that the matter that

must be proven is true, then we must conclude the evidence is legally insufficient. Id.

In a factual sufficiency review, we give due consideration to evidence that the factfinder

could reasonably have found to be clear and convincing. Id. We must consider whether disputed

evidence is such that a reasonable factfinder could not have resolved that evidence in favor of its

finding. Id. 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 factfinder could not reasonably

have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

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SECTION 161.001(1)(O)

We begin our analysis by addressing the sufficiency of the evidence to support the trial

court’s findings that Mother and Father failed to comply with the provisions of a court order that

specifically established the actions necessary for them to obtain the return of the child. Under

section 161.001(1)(O), a trial court may order termination of the parent-child relationship if it finds

by clear and convincing evidence that 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 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(1)(O). The Texas Family Code does not provide for excuses for

a failure to comply with the trial court’s order under section 161.001(1)(O). In the Interest of C.R.,

263 S.W.3d 368, 374 (Tex. App.—Dallas 2008, no pet.). Nor does it consider substantial

compliance to be the same as completion of services. In the Interest of C.S., No. 02-14-00386-CV,

2015 WL 1869443, at *10 (Tex. App.—Fort Worth April 23, 2015, no pet.).

The crux of Mother’s argument is that the evidence was insufficient to support the trial

court’s finding under section 161.001(1)(O) because the Department failed to communicate the

contents of the service plan, and, thus, hindered her ability to comply with the court’s order

establishing the actions necessary for her to obtain return of her children. Contrary to Mother’s

contention, there was evidence that the Department communicated the contents of the service plan

to Mother. First, Hibbits testified that he told Mother and Father of the services they needed to

perform and where they had to go to obtain those services. Second, Garza testified that he had

made Mother aware that services had been established for her. Specifically, Garza testified that

when Mother first contacted him in November 2014, he explained the issues in the case to her and

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told her where she could find help. Because of the severity of her drug use, Garza recommended

that Mother skip the drug assessment and go directly to Lifetime Recovery. Garza gave Mother

the phone number so she could make an appointment with Lifetime Recovery. When Mother again

contacted Garza in January 2015, and informed him that she was homeless, Garza told Mother to

contact Alpha Home for inpatient drug treatment, and Garza provided her with the necessary

contact information. Garza further testified that if Mother had contacted Alpha Home as directed,

she would have been given a drug assessment as part of the intake process.

Father essentially argues that the evidence was insufficient to support the trial court’s

finding under section 161.001(1)(O) because he completed the services of which he was made

aware, specifically parenting classes and counseling. 2 Texas courts have uniformly held that

substantial completion or substantial compliance is not enough to avoid termination under section

161.001(1)(O). In the Interest of T.T., 228 S.W.3d 312, 319-20 (Tex. App.—Houston [14th Dist.]

2007, pet. denied) (citing cases rejecting arguments that substantial compliance is enough to avoid

a finding under section 161.001(1)(O)). And, to the extent Father argues that the evidence was

insufficient because the Department failed to communicate the contents of his service plan to him,

we reject this argument as well. Garza testified that, beginning in November 2014, he had

conversations with Mother and Father in which they told him that illegal drug use was still a

problem for them. Garza estimated that he had about five conversations with Father. Based on

these conversations, Garza referred Father to Lifetime Recovery for drug treatment. Additionally,

Hibbits testified that he advised Father of the services he needed to perform, and where he needed

2
Although there was some evidence that Father completed his parenting classes, there was no evidence that he
completed counseling. Instead, the evidence showed that Father went to one session with a Department-approved
counselor and was “discharged.”

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to go to obtain these services. Thus, there was evidence that the Department communicated the

contents of the service plan to Father.

The record shows the Department filed a service plan with the trial court clerk on October

1, 2014. On the same day, the trial court signed an order that incorporated the service plan,

approved it, and made it an order of the court. Among other things, the service plan required

Mother and Father to complete an approved drug and alcohol assessment and to follow all

recommendations of substance abuse professionals. The undisputed evidence shows Mother and

Father failed to do so. Based on this evidence, the trial court could have formed a firm belief or

conviction that Mother and Father failed to comply with the provisions of a court order that

specifically established the actions necessary for them to obtain the return of the children. We

conclude the evidence was legally and factually sufficient to support the trial court’s findings under

section 161.001(1)(O).

Having concluded that the evidence was legally and factually sufficient to support the trial

court’s findings under section 161.001(1)(O), we need not address Mother and Father’s complaints

that the evidence was insufficient as to the other findings under section 161.001(1). See A.V., 113

S.W.3d at 362 (recognizing that a single predicate finding under section 161.001(1) is sufficient

to support termination when there is also a finding that termination is in the child’s best interest);

TEX. R. APP. P. 47.1 (requiring opinions to address only those issues necessary to final disposition

of the appeal).

BEST INTEREST OF THE CHILD

Next, we analyze whether the evidence was legally and factually sufficient to support the

trial court’s findings that termination of Mother and Father’s parental rights was in the best interest

of the children. There is a strong presumption that the best interest of the child will be served by

preserving the parent-child relationship. In the Interest of R.R., 209 S.W.3d 112, 116 (Tex. 2006).
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There is also a presumption that the prompt and permanent placement of the child in a safe

environment is in the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a) (West 2014). The

Texas Family Code lists factors courts should consider in determining whether parents are willing

and able to provide the child with a safe environment. Id. 263.307(b). The listed factors that are

relevant to our analysis include the children’s age and vulnerabilities; a history of substance abuse

by the children’s family; the willingness and ability of the children’s family to seek out, accept,

and complete counseling services and to cooperate with and facilitate an appropriate agency’s

close supervision; the willingness and ability of the children’s family to effect positive

environmental and personal changes within a reasonable period of time; and whether the child’s

family demonstrates adequate parenting skills, including providing the child and other children

under the family’s care with minimally adequate health and nutritional care. Id. § 263.307

(b)(1),(8),(10),(11),(12)(A).

In addition, in evaluating the trial court’s best interest findings we may consider the factors

articulated in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The Holley factors include:

(1) the desires of the child; (2) the emotional and physical needs of the child now and in the future;

(3) the emotional and physical danger to the child now and in the future; (4) the parental abilities

of the individuals seeking custody; (5) the programs available to assist these individuals to promote

the best interest of the child; (6) the plans for the child by these individuals or by the agency

seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of

the parent which may indicate that the existing parent-child relationship is not a proper one; and

(9) any excuse for the acts or omissions of the parent. Id. In evaluating Holley factors, we focus

on the best interest of the child, not the best interest of the parents. Dupree v. Texas Dept. of Prot.

and Regulatory Serv., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ).

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There is no requirement that evidence be presented as to each of the Holley factors. In the

Interest of C.H., 89 S.W.3d 17, 27 (Tex. 2002). “The absence of evidence about some of these

considerations would not preclude a factfinder from reasonably forming a strong conviction or

belief that termination is in the child’s best interest, particularly if the evidence were undisputed

that the parental relationship endangered the safety of the child.” Id. The same evidence proving

acts or omissions under section 161.001(1) of the Texas Family Code may be probative of the

child’s best interest. Id. at 28. In analyzing the best interest of the child, we may consider direct

and circumstantial evidence, subjective factors, and the totality of the evidence. In the Interest of

E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).

We now consider the above-referenced factors as they apply to this case. At the time of

trial, I.G. was ten and R.C. was five. Thus, the children were still quite young and vulnerable. The

children were living in a foster home and transitioning to a foster-to-adopt home. No direct

evidence was presented concerning the children’s desires, but there was some evidence indicating

that the children had a bond with their parents. Mother testified that the children were happy to see

her and Father during visits and were “distraught” when the visits were over. Mother also testified

that she could not live without her children, and her children could not live without her.

When the children were removed from Mother and Father’s home, R.C. had extensive tooth

decay. Mother acknowledged that this tooth decay caused R.C. pain. Mother offered several

excuses for the failure to care for R.C.’s physical needs. Specifically, Mother said that the tooth

decay had developed only “within the past six months before [the Department] took [him],” that

they could not take R.C. to the dentist because Father had just lost his job, and the children did not

qualify for Medicaid because Father had received funds from “early retirement.” Additionally,

when the children were removed from Mother and Father’s home, the family’s home had no

refrigerator and no electricity. Mother also offered excuses for the family’s living conditions.
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Mother explained that their home had a generator and had contained a refrigerator until just before

the children were removed.

By the time of trial, Mother and Father had moved to a different house. According to

Mother, the house was equipped with electricity, running water, and food. Father explained that

they were renting the house on a month-to-month basis; they did not have a lease. Mother said the

house had three bedrooms; Father said it had two bedrooms. Father testified that he was employed

at the same job that he had worked at for the last two years. In addition, Mother testified that she

and Father were trying to work things out and were living together “on and off.”

Shortly after the children’s removal, Mother and Father admitted to a Department

employee, Garza, that they were still using illegal drugs. In her trial testimony, Mother admitted

that she had used various illegal drugs after the children were removed, including heroin,

methamphetamines, and marijuana. Mother also admitted that, on one occasion, she sought and

obtained prescription medicines from one of her adult children; the medication was not prescribed

for her. Nevertheless, Mother never obtained a drug assessment or followed up on referrals to drug

treatment programs. Mother also stated that she had used drugs to help her deal with the pain of

losing the children. And, finally, Mother tested positive for methamphetamines during a visit with

the children.

Father also tested positive for methamphetamines during a visit with the children.

However, in his trial testimony, Father could not explain how or why he tested positive for

methamphetamines. Father denied that he had used illegal drugs, and he further stated that he was

unaware of any illegal drug use by Mother.

A parent’s drug-related conduct is a significant factor to which a factfinder can give great

weight in evaluating the best interests of a child. Dupree, 907 S.W.2d at 86. A factfinder can form

a firm conviction or belief that termination of parental rights is in a child’s best interest from facts
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showing a parent’s frequent and long-term use of drugs. Toliver v. Texas Dept. of Family and Prot.

Serv., 217 S.W.3d 85, 102 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Viewed in the light most favorable to the trial court’s finding, the evidence showed

continuous illegal drug use by Mother and Father. Mother and Father were repeatedly advised that

they needed to seek treatment for their drug problems and were referred to programs to assist them.

Nevertheless, Mother and Father never went for a drug assessment or sought any assistance with

their drug problems. Neither parent successfully completed counseling, which according to the

Department, could have aided and supported a drug treatment program. Mother and Father

attended one session with a Department-approved counselor, but were immediately discharged. In

light of this evidence, the trial court could have concluded that Mother and Father had failed to

demonstrate a willingness and ability to accept and complete counseling services, and had failed

to demonstrate a willingness to effect personal changes within a reasonable period of time. Finally,

Mother and Father were unable to provide minimally adequate health care for their children as

demonstrated by their failure to obtain treatment for R.C.’s extensive tooth decay.

We recognize that at trial Father denied that he had used illegal drugs. However, in

performing a factual sufficiency review, we must give “due deference to the decisions of the

factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter

when assessing the credibility and demeanor of witnesses.” In the Interest of A.B., 437 S.W.3d

498, 503 (Tex. 2014). We are further obligated to give due consideration to evidence that the

factfinder could reasonably have found to be clear and convincing. J.F.C., 96 S.W.3d at 266. Here,

there was some evidence that Father continued to use illegal drugs even after the children’s

removal. We cannot say that, in light of the entire record, “the disputed evidence that a reasonable

factfinder could not have credited in favor of [its] finding is so significant that a factfinder could

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not reasonably have formed a firm belief or conviction in the truth of its finding” that termination

was in the children’s best interest. See A.B., 437 S.W.3d at 506; see also J.F.C., 96 S.W.3d at 266.

Considering the direct and circumstantial evidence, subjective factors, and the totality of

the evidence, we conclude the trial court could have formed a firm belief or conviction that

termination was in the children’s best interest. We, therefore, conclude the evidence was legally

and factually sufficient to support the trial court’s findings as to best interest of the children.

CONCLUSION

The trial court’s termination order is affirmed.

Karen Angelini, Justice

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