in the Interest of S. R.- M. C.

ACCEPTED
01-15-00556-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/1/2015 4:52:17 PM
CHRISTOPHER PRINE
CLERK

No. 01-15-00556-CV
In the Court of Appeals for the
First District of Texas at Houston, Texas FILED IN
1st COURT OF APPEALS
___________________________________ HOUSTON, TEXAS
10/1/2015 4:52:17 PM
In the Interest of S.R.-M.C., Child CHRISTOPHER A. PRINE
__________________________________ Clerk

RAC, Sr. aka RC, Appellant

v.

Department of Family & Protective Services, Appellee

____________________________________

On appeal from the Harris County District Court
313th Judicial District; No. 2010-08247J
____________________________________

APPELLEE’S BRIEF
____________________________________

VINCE RYAN
COUNTY ATTORNEY
State Bar #99999939
Sandra D. Hachem (SBN 08667060)
Sr. Assistant County Attorney
1019 Congress, 17th Floor
Houston, Texas 77002
Telephone: (713) 274-5293
Facsimile: (713) 437-4700
Email: sandra.hachem@cao.hctx.net
ATTORNEY FOR APPELLEE,
DEPARTMENT OF FAMILY &
PROTECTIVE SERVICES
 TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

ABBREVIATIONS .................................................................................................iv

STATEMENT OF THE CASE .................................................................................iv

REPLY POINT .........................................................................................................iv

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF ARGUMENT ................................................................................. 7

ARGUMENT AND AUTHORITIES ........................................................................ 9

REPLY POINT ONE: The evidence sufficiently supported the court’s
findings for termination of RC’s parental rights .................................................. 9
1. The Claims, the Law and Standard of Review ........................................ 9
2. The unchallenged finding under Subsections (O) concerning
RC’s failure to comply with the court’s order for reunification is
binding in this court’s review and warrants parental termination... ....... 12
3. The undisputed fact that the father made no effort to contact the
child and admitted his lack of resources or ability to parent
coupled with the fact he took no action to comply with the court
ordered service plan, other than allowing DNA testing, supported
the court’s finding under N. ......................................................................... 14
4. There was sufficient proof for the trier of fact’s finding that
termination was in the child’s best interest considering the
evidence in support of Subsections N and O ............................................... 16

PRAYER FOR RELIEF .......................................................................................... 19

CERTIFICATE OF SERVICE ................................................................................ 20
CERTIFICATE OF WORD COUNT COMPLIANCE ........................................... 20

Appendix ........................................................................................................ attached

ii
 INDEX OF AUTHORITIES
CASES PAGE

In re A.V., 113 S.W.3d 355 (Tex. 2003) .................................................................. 14

In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).. ...................................................9, 11, 18

In re E.A.F., 424 S.W.3d 742 (Tex. App.―
Houston [14th Dist.] 2014, pet. denied)................................................................. 10

In re E.C.R., 402 S.W.3d 239 (Tex. 2013) .............................................................. 18

Holick v. Smith, 685 S.W.3d 18 (Tex. 1985) ............................................................. 9

Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) ....................................................... 17

In re J.F.C., 96 S.W.3d 256 (Tex. 2002) ................................................................. 11

In re J.O.A., 283 S.W.3d 336 (Tex.2009) ................................................................. 9

In re U.P., 105 S.W.3d 222
(Tex. App.—Houston [14th Dist.] 2003, pet. denied) .....................................16, 17

STATUTES

Tex. Fam. Code An. §101.007 (West 2014) ............................................................ 11

Tex. Fam. Code Ann. §161.001 (West 2008) ......................................v, 9, 10, 13, 15

Tex. Fam. Code Ann. §263.307 (West 2014) .......................................................... 17

iii
 ABBREVIATIONS
In this Brief, the following abbreviations will apply:
PARTIES
RC: refers to the Appellant, the Father/Respondent.
RM: refers to the Mother, the Respondent at trial.
SC: refers to the child at issue in this appeal
APPELLATE RECORD:
CR: refers to the Clerk Record
RR-2: refers to the 2nd Volume of the Reporter’s Record with trial testimony.
RR-3: refers to the 3rd Volume of the Reporter’s Record containing exhibits.

STATEMENT OF THE CASE

On August 29, 2014, the Department filed a motion to modify and suit for

protection of the subject child (SC). CR1 89. A bench trial was held on May 13,

2015. CR 103. A judgment was thereafter signed on June 2, 2015 that terminated

the parent-child relationships of the RM (mother), and RC (Father) of SC. CR 105-

06. Per Tex. R. Civ. P. 306, the judgment as to both parents recited the predicate

bases warranting parental termination under Subsections (N) and (O) of Section

161.001(1) of the Family Code. Id. RC filed a timely notice of appeal. CR 114.

The brief on behalf of RC to which this brief responds challenges the sufficiency

of the evidence for the finding that termination was in the child’s best interest, and

the predicate finding under Subsection N.

REPLY POINT

Reply Point: The evidence sufficiently supported the court’s findings for
termination of RC’s parental rights.

1
In this brief “CR” refers to the Clerk’s record filed in this appeal.

iv
 No. 01-15-00556-CV
In the Court of Appeals for the
First District of Texas at Houston, Texas
___________________________________

In the Interest of S.R.-M.C., Child
__________________________________

RAC, Sr. aka RC, Appellant

v.

Department of Family & Protective Services, Appellee

____________________________________

APPELLEE’S BRIEF
__________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Department of Family & Protective Services, Appellee, [hereinafter

“Department”] submits this brief in response to the brief of RC.

STATEMENT OF FACTS

On June 26, 2012, a decree was signed concerning the subject child SC and

her older sister EW that placed them in the Department’s sole managing

conservatorship without terminating parental rights. CR 59. At the time the order

was signed, SC was 4 years old and her older sister was almost 18. RR-3 p. 17.

RC was named as one of alleged fathers in the judgment, but paternity was not

established at that time. CR 60. The decree removed the mother as a managing

conservator and limited her rights as a possessory conservator. CR 61.
 A couple years later, on July 2, 2014, the court ordered RC to remain in the

courtroom to take a DNA test. Appendix,2 Attachment 1 (Image #61643812). That

same month, the court ordered the parents to complete the Family Service plans

that had already been on file for several months, since October of 2013, and the

court attached the October plans to the court’s order. CR 71. The October service

plans recited the Department’s concerns and goals as well as tasks for each parent

to complete. RR-3 p. 51.

The plan prepared for the alleged father, RC, included details about the

Department’s concerns about the child’s family situation. RR-3 p. 52; Se also CR

82. In particular, it described the child’s mother as violent and out of control with

discipline methods that were disproportionately harsh. Id. It also noted that RM

had physical altercations with her oldest child on a regular basis. Id. It noted that

the mother had no stable residence, was living in a hotel that was not appropriate

for the youngest child to live in, and that the mother had a history of homelessness.

Id. The Department’s plan also expressed concern that the mother appeared

unconcerned about SC being in a safe and protected environment. RR-3 52.

One of the general goals of the plan was for each parent to “show the ability

to parent and protect the child.” RR-3 p. 52. In connection with that goal, the plan

specified numerous tasks the parents should complete; and for the father, RC, in

2
The appendix contains documents that did not appear in the clerk’s record, but the Department
requested the clerk to supplement the appellate record with them.

2
particular, it required that: (1) the father maintain a positive support system that is

safe, crime free and drug free; (2) that he submit to DNA, (3) successfully

complete parenting classes, (4) provide his caseworker sources of income for him

and his child by the 15th of each month and maintain stable employment for at least

six months; (5) provide the worker with release of information forms, (6)

participate in meetings and court hearings regarding his child and provide truthful

information; (7) maintain stable and safe housing for at least six months (8)

complete a psychological evaluation and (8) participate in drug/alcohol testing.

RR-3 p. 53-54.

On September 12, 2014, the court signed an order that formally adjudicated

RC as the child’s father.3 Appendix, Attachment 2 (Image #62545110). Trial

commenced about nine months later: on May 13, 2015. RR-3 p. 4. Neither parent

was at trial. The mother told her attorney she had just gotten out of the hospital

and did not feel up to coming. RR-2 p. 13.

The caseworker, Jamelle Gibbs, was the only witness at trial. She

acknowledged that the mother had been named possessory conservator of the child

since 2012 (over 3 years earlier). RR-2 p. 14-15. She noted after she was named

possessory conservator, the Department asked the mother to participate in two

3
This interlocutory order was later incorporated into the court’s final judgment. CR 111.

3
service plans, but the gist of both plans was basically the same thing: that she

acquire stable employment and housing. RR-2 p. 15.

The Department’s caseworker did not believe the mother showed

compliance in her services; and, in particular, she did not take her drug tests and

had not found housing. RR-2 p. 18-19. The caseworker did not believe she had

completed anything from her service plan. RR-2 p. 16. She acknowledged the

mother told her she was employed at Zone D’Erotica but she did not provide any

pay stabs or proof of income. RR-2 p. 16. Consequently, the caseworker had no

proof that she could provide the child with a safe and stable environment. RR-2 p.

16. In fact, she had no evidence that the mother even wanted to parent the child.

RR-2 p. 16-27. She stated while over the years the mother had indicated she

wanted to provide for the child, since September 2014 she continued to just tell the

caseworker that the Agency could have her child. RR-2 p. 17. Consequently, she

did not believe she wanted to parent the child. RR-2 p. 17.

The caseworker acknowledged that the mother’s access to the child had been

limited by the court in an order before the present motion to modify was filed. RR-

2 p. 17-18. She noted that occurred around March of 2014. RR-3 p. 27. She

indicated the court limited her access because she would tell the child not to listen

to any other adult and the child’s behavior went in a negative direction after her

visits. RR-2 p. 18. The mother did not do anything to reinstate her visitation and

4
access. RR-2 p. 19. After her rights to visits and access were limited, she asked

about her child only about four times, and the caseworker believed she essentially

abandoned the child. RR-2 p. 19.

The caseworker stated that the child’s father was living in Indianapolis,

“India [sic.].”4 RR-2 p. 10. The caseworker mailed him a plan of service and went

over it with him by phone. RR-2 p. 20. She stated he gave a DNA sample in 2014

as required by the plan, but did not complete the plan. RR-2 p. 20-21. In

particular, she noted he did not visit the child and never reached out to the

Department to set up visits or phone contact. RR-2 p. 21. She also noted he did not

provide for his child financially and never sent the child letters, gifts, support or

clothing. RR-2 p. 21-22. He essentially abandoned her. RR-2 p. 22.

The caseworker stated she believed the father abandoned the child, because

it had been four years and he failed to show any interest in her whatsoever. RR-2 p.

30. She noted he did not write the child, and did not attempt to video chat, or

phone the child. RR-2 p. 33. Also, when the caseworker spoke with the father

about parenting the child, he responded that he was not able to parent and added he

was not stable. RR-2 p. 22. He stated he had a job, but was not working much and

suggested maybe one of his sisters could get the child. RR-2 p. 22. The

4
This is obviously a typo. The address of RC was in Indiana. RR-3 p. 17.

5
caseworker stated she had no evidence that he was financially able to parent the

child or that he could provide a safe and stable home. RR-2 p. 22.

The father told the caseworker about two relatives, but she noted if she had

not asked the father about potential relatives, her conversation with him would

have ended there. RR-2 p. 22-23. As to the two relatives the father referred her to

for placement, they both lived in Indiana. RR-2 p. 23. She stated that ICPC

requests were submitted for those individuals. RR-2 p. 23. However, the first

proposed relative, an aunt, was denied, because she failed her FBI background

check; and the second was denied due to noncompliance. RR-2 p. 23.

The caseworker stated that SC is a sweet little girl, but her parents had not

been able to provide her with the basic things needed to thrive and live. RR-2 p.

24. She noted the child had been in care for four-plus years, had been in numerous

placements and deserved stability. RR-2 p. 24.

The caseworker noted the child was at that time in a foster home where she

had been for a year and all her physical and emotional needs were met there. RR-2

p. 12-13. The caseworker acknowledged the agency had not identified an adoptive

placement for the child yet. RR-2 p. 25. Nevertheless, she stated if the court

terminated the parents’ rights that would open up the pool to where she could

actually be broadcasted to obtain permanency. RR-2 p. 25.

6
 The caseworker noted the child was diagnosed with mood disorder and

ADHD but was responding positively to the medications to address those

conditions. RR-2 p. 13. She stated she believed the Department would be able to

find an adoptive home for the child once she is freed for adoption and believed it

would be in the child’s best interest. RR-2 p. 32.

SUMMARY OF ARGUMENT

The Appellant’s Brief of the Father (RC) challenges the sufficiency of the

evidence to support some of the findings in support of the court’s decision to

terminate his parental rights. Namely, the brief challenges the legal and factual

sufficiency of the evidence to support the court’s findings that termination was in

the child’s best interest and that RC constructively abandoned the child for a

finding under Subsection N. Those challenges should be overruled, because the

evidence supported the court’s finding under N as well as the best interest finding.

Moreover, the brief does not challenge the court’s findings regarding RC’s

failure to comply with the court order for reunification for a finding under O. That

omission impacts this court’s review, because that unchallenged finding is binding

in this court’s review, obviates the need for review of the challenge to Subsection

N and provides support for the court’s finding that termination was in the child’s

best interest.

7
 In addition, the evidence in this case is essentially undisputed in support of

the court’s conclusion that parental termination was in the child’s best interest.

This child has not received the basic things a child needs from a parent for the last

four years while this child has lingered in foster care and there is no indication that

RC ever reached out to this child. While this father complied with a court order to

undergo DNA testing to find out his paternity, that was the extent of his efforts.

He did not do anything else the court ordered in the plan that was created for his

child’s benefit to try and come up with a permanent solution.

Also, it is undisputed that the father did not believe he was able to parent

considering his instability and the only reason the caseworker learned about

relatives from his family was because she asked him to provide that information.

She basically indicated he was apathetic in his response to this child. He did not

write the child, made no efforts to speak or meet with the child and did nothing to

provide emotional or financial support for this child. The caseworker was correct

in her conclusion that he abandoned this child.

While an adoptive home had not yet been located for this child, the

caseworker believed there would be a greater opportunity for that option if the

parents’ rights were terminated. Under those circumstances, the caseworker was

correct in concluding that parental termination would provide the only plan for this

child’s best interest and hope for permanency with a family. Consequently, the

8
evidence was essentially undisputed under these facts to support the court’s

conclusion that parental termination was in the child’s best interest. The challenges

to that judgment should be denied and the judgment affirmed.

ARGUMENTS AND AUTHORITIES

REPLY POINT: The evidence sufficiently supported the court’s findings for
termination of RC’s parental rights.

1. The Claims, the Law and Standard of Review

It is acknowledged that the involuntary termination of parental rights is a

serious matter implicating fundamental constitutional rights. Holick v. Smith, 685

S.W.3d 18, 20 (Tex. 1985). However, it is also acknowledged that a child’s

emotional and physical interests cannot be sacrificed merely to preserve that right.

See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). Consequently, there can be

circumstances when termination of parental rights is warranted.

In this State, it is legally recognized that parental termination can be

warranted if a court finds by clear and convincing evidence that (1) the parent

committed at least one of the predicate acts listed under the statutory list provided

at section 161.001(1) of the Family Code; and (2) that termination is in the best

interest of the child. Tex. Fam.Code Ann. § 161.001(1), (2) (West 2014); In re

J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). In this case, the trial court found

parental termination warranted on clear and convincing evidence that the father

(RC) committed the predicate acts described at subsections N and O of section

9
161.001(1) of the Family Code and that parental termination was in the child’s best

interest. CR 114.

In this appeal, the Appellant’s Brief challenges the legal and factual

sufficiency of the evidence for the court’s finding that parental termination was in

the child’s best interest and for the predicate act described at subsection N.

Appellant’s Brief does not challenge the evidence in support of the predicate act

described at subsection O. The failure to challenge the court’s finding under O is

significant in this court’s review for three reasons.

First, it is significant, because unchallenged predicate findings are treated as

binding on appeal. See In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.―Houston

[14th Dist.] 2014, pet. denied). Second, since only one predicate finding is required

to support a court’s decision to terminate parental rights that means this court need

not review the challenge in Appellant’s Brief to Subsection N in order to affirm the

trial court’s decision to terminate RR’s parental rights. Id. Third, because the

finding of Subsection O is supportive of a best interest determination, this binding

finding impacts this court’s review of the challenge in Appellant’s Brief to the

finding concerning best interest. Id.

As far as the Standard of Review for the challenge in Appellant’s Brief, it is

acknowledged that the Family Code imposes a heightened standard of proof at trial

described as “clear and convincing.” See Tex. Fam. Code Ann. §161.001 (West

10
2008). The Family Code also specifically defines that standard to mean “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 An. §101.007 (West 2014).

The heightened standard of proof at trial requires an appellate court to

consider that standard when reviewing challenges to the sufficiency of the

evidence. See In re C.H., 89 S.W.3d at p. 25 (Tex. 2002) (“burden of proof at trial

necessarily affects appellate review of the evidence.”); In the Interest of J.F.C., 96

S.W.3d 256, 265-66 (Tex. 2002). In that connection, both legal and factual

sufficiency challenges consider the standard of proof for clear and convincing

evidence by considering whether the evidence is such that a fact-finder could

reasonably form a firm belief or conviction about the truth of the State's

allegations. See In re C.H., 89 S.W.3d at p. 25 (Tex. 2002); In re J.F.C., 96 S.W.3d

at pp. 265-66; Tex. Fam. Code Ann. 101.007 (West 2014).

In In re J.F.C. the Supreme Court explained, in light of the identical

inquiries made to the clear and convincing standard, the distinction between legal

and factual sufficiency when the burden of proof is clear and convincing evidence

may be a fine one in some cases, but clarified that there is a distinction in how the

evidence is reviewed. 96 S.W.3d at p. 266. The court explained that in a legal

sufficiency review, a court should look at all of the evidence in the light most

11
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, giving appropriate

deference to the trier of fact. Id. In a factual sufficiency review, a court of appeals

must give due consideration to evidence that the factfinder could reasonably have

found to be clear and convincing and with respect to disputed evidence, a court

should consider whether the disputed evidence is such that a reasonable factfinder

could not have resolved that disputed 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. 96 S.W.3d at pp. 266-67.

2. The unchallenged finding under Subsections (O) concerning RC
failure to comply with the court’s order for reunification is binding in
this court’s review and warrants parental termination.

As already discussed, the trial court’s finding under Subsection O is not

challenged in this appeal and, as such, it is binding in this court’s review of this

appeal. Nonetheless, the facts entailed in that finding should be briefly mentioned

to emphasize its importance in review of the trial court’s decision to terminate

RC’s parental rights.

Subsection O involves a finding that the parent failed to comply with the

provisions of a court order that specifically established the actions necessary for

12
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) (West 2008). The facts related to this finding in this case

should be considered because they illustrate an important reason why the court

correctly determined parental termination was warranted.

Namely, as explained in the service plan ordered in this case, its purpose was

to help RC provide his child with a safe environment within a reasonable period of

time and warned that failure to do so could result in termination of parental rights.

RR-3 p. 56. In this regard, the specific goals listed for both parents involved the

parents showing their ability to parent the child with appropriate resources, as well

as extending appropriate affection and demonstrating the ability to bond with the

child. RR-3 p. 52-53. The tasks in the plan supported those goals by requiring the

parents to maintain positive support systems, learn parenting skills, provide proof

of adequate income, participate in court hearings and meetings regarding the child,

and maintain a safe and stable home where the child could live. RR-3 p. 53-54.

The caseworker confirmed she went over the service plan with the father on

the phone; therefore, RC would have known that doing things that would show his

ability and willingness to assume the responsibilities of a father-daughter

13
relationship was essentially what was being asked of him. RR-2 p. 20. However,

by the time of trial, the father did not complete anything ordered in that plan except

for the DNA testing to confirm his paternity. RR-2 p. 20-21. In addition, it does

not appear he wanted to work on this situation, because when he was asked

whether he wanted to parent his child, he merely stated that he was not able to

parent his child and talked about his lack of stability. RR p. 22. The caseworker

acknowledged she had no evidence to indicate he had stability, but that really did

not explain why he was unwilling to work on doing anything that would help his

child. Consequently, the evidence indicated he simply was apathetic about the

situation of this young child and that proved he had an inappropriate parental

relationship. Such evidence provided pivotal support for the court to find a

predicate basis warranted termination of RC’s parental rights and supported the

court’s finding as to best interest as well. Consequently, the court’s finding on this

unchallenged ground includes important facts relevant to review in this appeal.

3. The undisputed fact that the father made no effort to contact the child
and admitted his lack of resources or ability to parent coupled with the
fact that he took no action to comply with the court ordered service
plan, other than allowing DNA testing, supported the court’s finding
under N.

As already mentioned, because there is no challenge to the predicate finding

under O, the finding under N need not be considered. In re A.V., 113 S.W.3d

355 (Tex.2003). Nonetheless, the facts in support of that finding are equally

14
important in illustrating why the court found parental termination warranted.

Therefore, it shall be addressed.

Section 161.001(1)(N) of the Family Code provides a predicate basis for

parental termination on clear and convincing proof that the parent:

constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of the Department of Protective
and Regulatory Services or an authorized agency for not less than six
months, and:
(i) the department or authorized agency has made reasonable efforts to
return the child to the parent;
(ii) the parent has not regularly visited or maintained significant
contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with
a safe environment.

Tex. Fam. Code § 161.001(1)(N) (West 2008).

The evidence in this case provided undisputed proof in support of all of the

elements of proof required for this finding, because:

1. It was undisputed that the child was in the Department’s temporary or
permanent managing conservatorship for approximately four years. RR-
2 p. 24.
2. It was undisputed that the Department made reasonable efforts to return
the child to RC by administering a family service plan for him during
these proceedings and ensuring he would be ordered to submit to DNA
testing in that plan. RR-2 p. 20; RR-3 p. 51; In re G.S., slip op. at p. 11,
No. 14-14-00477-CV (Tex. App. – Houston [14th Dist.] 2014, no pet. h.)
(mem. op.) (“Implementation of a family service plan by the Department
is ordinarily considered a reasonable effort to return a child to its
parent.”).
3. The evidence was undisputed that RC did not reach out to contact the
child or make arrangements to visit or phone, did not financially provide
for the child or ever send letters or gifts. RR-2 p. 21-22.

15
 4. The evidence was undisputed that RC stated he was not able to parent,
talked about his lack of stability and the caseworker had no evidence he
was employed or had the financially ability to support the child. RR-2 p.
22.

Appellant’s Brief essentially claims this evidence is insufficient because the

Department did not do enough to encourage the father considering he was out of

state and lacked stability. Nevertheless, the Department did make efforts by

assuming the responsibility of caring for his child while offering him a plan over

several months for him to show a willingness to care for his child’s needs. While

the father obviously had barriers caused by his geographic location and financial

circumstances, those barriers were within his control. In addition, those barriers

did not explain why he did not at least try to phone the child or send letters or gifts.

The record shows that RC simply did not do anything to demonstrate he cared.

And as correctly observed by the caseworker, it had been too long a time for this

child to have to wait to be cared by a parent when neither parent demonstrated the

willingness or ability to do so. The evidence in this case was conclusive as a matter

of law that RC constructively abandoned this child.

4. There was sufficient proof for the trier of fact’s finding that
termination was in the child’s best interest considering the evidence in
support of Subsections O and N.

A strong presumption exists that the best interest of the child is served by

keeping the child with its natural parent. In re U.P., 105 S.W.3d 222, 230 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied). Nevertheless, when a child comes

16
into care because a parent is neglectful to the child’s basic needs, the parental

presumption cannot prevail over the child’s safety. In that connection, Section

263.307(a) provides a prompt and permanent placement of the child in a safe

environment is presumed in a child’s best interest. Tex. Fam. Code Ann. §

263.307(a) (West 2014). Section 263.307(b) of the Family Code lists a number of

factors a court may consider in deciding a parent’s willingness to provide a child

with a safe environment and, those factors consider issues such issues as parental

drug use and the willingness to cooperate with the Department for reunification,

factors relevant in this case. Tex. Fam. Code Ann. 263.307(b) (8) & (10).

In addition, the Supreme Court has articulated a number of factors that can

also be considered in determining the best interest of the child. Those factors

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 which may indicate the existing parent-child relationship is not

appropriate; and (9) any excuse for the parent's acts or omissions. Holley v. Adams,

544 S.W.2d 367, 371–72 (Tex.1976); In re U.P., 105 S.W.3d at 230.

17
 1. Needs and Dangers

As already discussed, there was conclusive proof that RC constructively

abandoned his child and had not provided for this child financially or emotionally.

Such apathy not only shows RC would not ever provide for this child’s needs, but

endangered his child’s emotional security and stability. This provided conclusive

support for the court’s finding that parental termination was in the child’s best

interest.

2. Stability and Compliance with Services

As already discussed, there is undisputed evidence that RC failed to comply

with his service plan and that supported the court’s finding under Subsection O.

This same evidence supports the court’s best interest finding. See In re C.H., 89

S.W.3d at 27-28; See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (noting

reasons supporting finding under Subsection O may also support best interest

finding.). On the relevant evidence under O, as discussed above, the court had

conclusive proof to find RC lacked stability or willingness to comply with a plan to

obtain stability and that evidence supported the finding that parental termination

was in the child’s best interest.

3. Child’s Desires and Proposed Placement

It was undisputed that the child was in Department care for over four years

and RC had not done anything to personally assume responsibility for the child or

18
acquire an emotional attachment with the child. Also, RC admitted he could not

parent and lacked stability, and did not do anything during this case to show he had

interest in changing that situation. In the meantime, the child remained in foster

care and while the caseworker acknowledged an adoptive home had not been

found, she believed there could be an opportunity if parental rights were

terminated. Given these facts, the child’s obvious desire to be a child loved in a

stable and permanent home weighed in favor of parental termination.

In conclusion, the record in this case conclusively establishes that parental

termination was in the child’s best interest, primarily based on the same evidence

that supported the court’s findings under Subsections N and O. As there was no

disputed evidence of any significance to outweigh that conclusion, the trial court’s

findings should be affirmed.

WHEREFORE, PREMISES CONSIDERED, the Department requests that

this court affirm the trial court’s judgment and for such other and further relief to

which it may be entitled in law or in equity.

Respectfully submitted,

VINCE RYAN
COUNTY ATTORNEY

By: /s/ Sandra Hachem
Sandra Hachem State Bar 08667060
Sr. Assistant County Attorney
1 1019 Congress, 17th Floor
Houston, Texas 77002

19
 Phone: 713/274-5293; Fax: 713/437-4700
Email: sandra.hachem@cao.hctx.net
Attorney for Appellee,
Department of Family & Protective Services

CERTIFICATE OF SERVICE

I hereby certify that on this the 1st day of October, 2015 a true and correct
copy of the foregoing brief was sent to all parties to this appeal by sending a copy
by electronic transmission to the Appellant (RC) care of his attorney of record,
Donald Crane at donmcrane@gmail.com, and to the Attorney and Guardian Ad
Litem for the Child, Sylvia Escobedo, at her fax number: 713/583-4877.

/s/ Sandra Hachem
Sandra Hachem

CERTIFICATE OF WORD COUNT COMPLIANCE

This is to certify, pursuant to Tex. R. App. P. 9.4(i)(3), that the foregoing
computer generated brief consists of no more than 15,000 words, excluding the
caption, identify of parties and counsel, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of procedural
history, signature, proof of service, certification, certificate of compliance and
appendix. Relying on the word count of the computer program used to prepare this
document, the number of words, subject to count under the rules, is 4,674 words.

/s/ Sandra Hachem
Sandra Hachem

20
 No. 01-15-00556-CV
In the Courts of Appeals for the
First District of Texas at Houston, Texas
___________________________________

In the Interest of S.R.-M.C., Child
__________________________________

RAC, Sr. aka RC, Appellant

v.

Department of Family & Protective Services, Appellee

____________________________________

Appendix

Order for DNA testing………………………………………………...Attachment 1

Order Determining Paternity………………………………………….Attachment 2

21
 Tab 1
Order for DNA testing
 JAMELLE GIBBS 182-3
TIFFANY DIXON 182-3

:"',. ,~!Oc;, i\ f:~
! "\' --. '\' '1 ~I, ~\ ~ ~~-~~
i\ '.
/fj\ fAUSE NO. 2010-08247J
'i;,:,
IN THE INTEREST OF~-; t\Y~::-d \l \\ '''~ F I .L E D IN THE DISTRICT COURT OF
Chrrs Daniel
District Clerk

S R -M C JU ~SCOUNTY,TEXAS
Time:
-"""j:i;';~~f:h,-.-l.--

CHILD BY_ _ _"""n":::~~~--..113TH JUDICIAL JUVENILE DISTRICT
ORDER FOR DRUG / ALCOHOL / D.N.A. SCREENING

The following person(s) are ORDERED to:
[XX] Report in person IMMEDIATELY to: Avertest c/o National Screening Center2525 Shadel and Ave.; Building 30, Door II
/ Indianapolis, IN 462 I 9- I 787,3 I 7-353-3395
['vj Remain in the Courtroom;
[ ] Allow National Screening Center to collect sample at _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Each individual is ORDERED to remain in their respective location until samples have been drawn. Each individual named herein is ORDERED to
provide such personal sample(s) as may be necessary for National Screening Center to perform the ORDERED Drug / Alcohol / D.NA screening as
follows:
NAME: DOB TDL/ID/SS# TEST

I. R A C XXX-XX-
For Official Governmental Use Only - Do Not Disseminate to the Public: 61643812 - Page 1 of 1

I IUDS
Relationship ALLEGED FATHER ofS R -M C I I HAIR
IXXI D.N.A.
I IETG
I z'T.
I K2.
I Bath Salts

(UDS = Urine Drug Screen; ETG = Alcohol Test; HAIR = Hair Follicle Drug; D.N.A. Paternity Testing; z'T. = Zero Tolerance)
It is further ORDERED that: ] Each party named above is responsible and shall pay for each test administered
[XX] The costs of the test shall be paid as follows: _HUDA:URR~IS.!...C:::.O~UN~T....!Y_ _ _ _ _ _ _ _ __

The COURT reserves the right to re-allocate the costs of the test(s) between the parties. It is ORDERED that as soon as the results of the
test(s) are available, National Screening SHALL fax OR deliver the results, with CASE NUMBER, to the 313th District Court at FAX #
713-222-4845 for filing with the court under seal. National Screening shall also provide the PRINTED NAME of the person transmitting
the FAX results, the method(s)'by which the person tested was identified and the date and time the sample was taken.

SIGNED ON: _ _ _ _ _ _ _ _ _ _ _ __
JUD E
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this October 1, 2015

Certified Document Number: 61643812 Total Pages: 1

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
 Tab 2
Order Determining Paternity
 F I LED ",~\-'f.
Chris Daniel
District Clerk
IJ· e....
Y . -,J
JAMELLE GIBBS 182-3 o.RJGINAL SEP ~4 2014 ~
T1me:_...,.,....-:--:=---.--=:-:---
TIFFANY DIXON 182-3 Harris County, Texas
By__________-=~~----~----
Deputy
CAUSE NO~ 2010-08247J

IN THE INTEREST OF IN THE DISTRICT COURT OF

S R -M C HARRIS COUNTY, TEXAS

CHILD 313TH JUDICIAL JUVENILE DISTRICT

ORDER ESTABLISHING PARENTAGE

On September 12, 2014, a hearing w p to Family Code, Chapter 160, to
determine the parentage of the child S R -M C .

1. Appearances

1.1. The Department of Family and Protective Services (''the Department") appeared
through JAMELLE GIBBS, caseworker, and by attorney and announced ready.

1.2. Respondent MOTHER R M M A R
For Official Governmental Use Only - Do Not Disseminate to the Public: 62545110 - Page 1 of 5

M K AKA R M M K
M
o appeared in person and annoU:I1ced ready.
o appeared through attorney of record and
announced ready ..
o appeared In person and through attorney of record
_____________________________________________ and announced ready.
o waived issuance and service of citation by waiver duly filed.
o agreed to the terms of this order as evidenced by signature below.
~lthough duly and properly notified, did not appear and wholly made default.
o was not notified, and did not appear.
1.3. Respondent ALLEGED FATHER R A C AKA
R C .
o appeared in person and announced ready.
o appeared through attorney of record and
announced ready.
o appeared In person and through attorney of record
_______________--:-_---:-_-:--_ and announced ready.
o waived issuance and service of citation by waiver duly filed.
o agreed to the terms of this order as evidenced by signature below.
~though duly and properly notified, did not appear and wholly made default.
o was not notified, and did not appear.
RECORDER'S MEMORANDUM
This ins1rument is of poor quality
~O=-rd':'"'"er-=Es-:-ta-:-:blish:-:-:-ing-::P:-are-n:-tag-e---------------------- at the time of imaging. 2010'{)8247J 1313th
Page 1 Amanuensis 4.0
 1.4. Respond t ALLEGED FATHER D M
o appe d in person and announced ready.
o appear through attorney of record and
announc d ready:
o appeared In person and through att ey of record
_ _ _ _~------- and announced ready.
o waived iss e and service of citation by waiver duly filed.
o agreed to the te s o this order as evidenced by signature below.
~though duly and properly notified, did not appear and wholly made default.
'--El was not notified, and did not appear.
1.5. SYLVIA YVONNE ESCOBEDO, appointed by the Court as Attorney and
Guardian Ad Litem of the child the subject of this suit,
~peared and announced ready.
/ 0 ;greed to the terms of this order.
o agreed to the terms of this order, but did not appear
o although duly and properly notified, did not appear.
1.6. Also Appearing _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
For Official Governmental Use Only - Do Not Disseminate to the Public: 62545110 - Page 2 of 5

2. The Child

This parentage order adjudicates parentage of the following child:

Name: S R -M C
Sex:
Date of Birth:
3. Findings: Alleged Father R A C AKA R
C

3.1. R A C AKA R C Established as
Father of
the Child S R -M C

3.1.1. The Court finds that the es exclude R A
C AKA R C as the father, and that he has
at cent probability of paternity, using a prior probability of
0.5, as calculated by using the combined paternity index obtained in the
testing and a combined paternity index of at least 100 to 1 wi
the child S R -M C born on
to R M M /

Order Establishing Parentage 201~8247 J I 313th
Page 2 Amanuensis 4.0
 3.1.2. S THE ORDERED that R A C ,
AKA R C is, and he is hereby adjudicated as the
father of the child S R -M C .

3.1.3. The Court finds that it is in the best interest of the child to limit the rights
and duties of each parent appointed as a temporary possessory
conservator.
SIGNEDthis _ _ dayof SEP 0 92014 ,2014.

Respectfully Submitted,
JUDGE ~
SIDiNG'
~
Vince Ryan
Harris County Atto
SPN# 9 999

Atri la 8. S ·ckling
Assistant County Attorney
For Official Governmental Use Only - Do Not Disseminate to the Public: 62545110 - Page 3 of 5

2525 Murworth Drive, Suite 300
Houston, Texas 77054-1603
State Bar # 24062183
email: amelia.strickling@cao.hctx.net
phone: 713-578-3900
fax: 713-578-3995

Order Establishing Parentage 2010-00247J 1313th
Page 3 Amanuensis 4.0
 'A &OMOSOMAL lA~s
1825 W CREST LANE
PHOENIX, AZ 85027 US.A.
+ 1:623.434;0292(0)

7#' +BOde~TeCMOI09)',.
+1.623.321:6118 (F)
·www.chromosomal-labs.Com
wyvw.l:lOdetech.com

For ReportConsultation Please Contact:
National Screening Ceht.er TPA.Cc:lse NO TPA,GASE #
407 F;3nnirl Street Logged 7/11/2014'
Houston.lX77002 Case;No. PL 14-0991'5
713~226~ 7847 HIIlIIlUlllllllmOllllHlOIlmll unu

No. Name
"t R
Pa t ernuy '. .~gCl.ITes t
·e po rtL
Relationship Collected
Race/Ethriiclty
14~11663 .'
S C Child - 7/9/20t4
14-08913 R C .. Alleged Father Black 7/812014

14·11663 ....." 14.()8913 ; Patemity
LOci 1----.~A':":'IIf)-:I.....,e-:A.....,·.---..;.,r'-'-'...;.;....-A~I::-le-:-le-=B--+-----A~lIe.:::-le'"""·.~A.;.;,;
. ...;.;....~~-,.'-~A~II=-"'e':-Ie-:B~··------t Index (Pi)
08S1179 " 1 3 1 6 1 5 1 6 5 . 3 1 ..
D21S11 27~.1 28 33.1192
D7S820 911' 9 1 0 ', 1~57
CSF1PO ...
03S1358 17 18 15184.39
THO,1 8_9.3. 8 9;3 '3.67
013S317 .. 1112 11 '. 2.09
0016S539' 913.1} -131.5
02S1338 20. 2220 225.59
For Official Governmental Use Only - Do Not Disseminate to the Public: 62545110 - Page 4 of 5

Ot9S433 ' 13 ····13,2 1314.2 0.838
vWA 1 7 1 7 5 : 3 9
TPOX 8 7.8 1.35
018S51 17 17 18 3.01
AMEL x_ X Y 1
05S818 12 1310 13 1m
FGA 19 25 ',19 '214.51:
Combined Paternity Index .. 3.132;000
Probability >99.999%

Interpretation: T~~, r~~ults il'ldicate that the. $lIeged: father cannot be excluded as the biological father of the child. The reported
probability as compared to 'anunreiated,untested man ofthe same race. is calculated assuming aprlor probability of O~5. .
Chrom()somal Labs:~ Bode Technology is anAABBAccredited Relationship Testing ,Facility.

"'-
STATE OFARIZONA
COUNTY OF MARICOPA .
ACknOWledg~; m~r
".
/> 114
[ /I~a/~
Notary Public
PL 14~09915 Page 1 of 2

." '." . . . . . . _.1\ SOlubonPoint: Internatioral,lnc. (o~lp~ny •• wW1'I.s01l!tion'pOinUntLc:um, . .
New YcrK. \\,.shlng!D~, DC .• ,tartor). LEne>,'. PhlX'IIiX • ~lI1'DI'.'go '.Uaf.,;]r;(1 .'.Da.I'JS·' ("I(~'9i) •. L0~ I\ng':":'" .~dn t'rilllu;r.;o • Pdlm Beacri • Londan·. Jubi! • R'.yadh·
 Relationship Testing - Ca$e Natrcdive

Analytical Platform
Paterriity testresults and conclusions:ar~founded in stati,stics and probabilities, The greater'the number of g~netic
markers examined; the greater the strength oft~e genetic evidence andhencethegreaterlhe reliabilityo!the'finalresult.
Chror'[1osomal Labs • Sope Techr;lOlogy tests a minimum oft6 DNA markers in routine relationship testing, The 16
mark~r technology can achieve a probability of identity of 1in 40 quintillion,or 1 in 40,000,000,000,000;000,000~
Pat~rnity ,laws Jend'to'Vary from state to :state, The following web link provides a nice synopsis ,for manystates~
http://lawdigest.uslegaLcom/paternitylgeneraL' ' " """ ,
Amended Reports
Reports documerited a?;?lJP(3rsedinga,nother report have beer\, Clmended and may hayechange!) to test, results;,and/or
conclusions,

Extended Testing
For the, majority of pat ern itycases, the 16 genetic markerpanelismore:than adequate, However, spedal circumstances
can require ,extended testing to obtain a statistically desirable result. This typically occurs when there is;asingle,genetic
mutati6rlodhem6thefis noiincluded ,in the test. Extended testing: options can include testing the mother, adding more
autosomaFgenetic: loci,orY chromosome 'testing; if the child is a male, During,case ~review our doctors ma,y determine
that exterided testing is necessary or statistically useful, and will make recommendatimls for extended tests that are lik(3ly
to be the,m6stproductive~ ,'"
Moth~rless Testing
In,relati6nship testing, every effort sll,ouldbe:ma(j(3 !p ,testlhe mother when she is, available, DNA testing ,of. tile mother,
even if maternity is no! disputed, impTPves the,'chance of obtaining' COnclusive results and is a quality control check for
both' th~ scientific, and legal qommunity; !oensure, the,co,rrectchildwastested, Whilft motherless paternity testing is a
relatively cOrnrT)On practice, it can present a number of problems; ranging from inconclusive results, or in the cas,e of
For Official Governmental Use Only - Do Not Disseminate to the Public: 62545110 - Page 5 of 5

incest or rela!e,crallegedfathers, a f~lseinclusion, "

Y:;ChromosomeTesting in R,elationship Studies
The Y chrQrT)psome is male specific and passes thrOUgh generations unchange.d from father 10 son, In circumstances
where an alleged father i$: unavailable for testing oris' deceased, a, male child can be tested against any-' humbe(ofhis
male relatives including, out not limited to,othednown male child rEm, brothers and half brothe(s with the same fathef:;.
uncles; a grandf(lther, and grandfather'sibrothers, 'Since the Ychromosome is only found in m'ales, this type of testing is
notu$~ful for femaleoffsprin~, This testis alSO'riof appropdaleforpaternity in circumstances Where there are two related
aJleg~d fathers.

Genetic··,lnconsistencies(IVILitatiOrts)
Genetic inconsisterities(mutations) are naturally occurringmismcilches between a 'Child and .the alleged parent The'
freqUencies of. these naturally occurring mismatches are' fact6red:int6the ·finalcombinedpaternity index, Due to the
nature of these calculations, the statistical value 6f the result is significaritly reduced; therefore some degree of extended
testing IS requiredJoobtaih aGonciusive·result .. . . .
Result.h'terpret,Cltion~'Relations~ip Studies
the results of siblingship; aVuncular and grand paternity testing c:lre, gen~rally rep:orted as the likelihood, in support of or
againslanallege'd relationship, While interpretation' ofthe strength onhe statisti.c:alvalue can be variable,andshould;
ultimately be considered ih;context with all case circumstances; the table below slimmarizes Ruolished interpretative'
criteria for use as a guide, .
..
..
Combined Likelihood Ratio ... ....
~
Probability
..
·..Value ofEvldencelrl.Support ofHvpothesis
t,6J6JO .6t;6% t6'90,90% LimitedSuppo"rt'
;':10 to 100 ··90:91.%·t099,00% Moderate Support",
>100to 1000 99,01% ·:99,90% .StrongSUQQor\ ...
... .. -
>1,000 >99,90% .. VeJYStron~SuJ2!:l.ort

Page'2of2 0613.1 4 Rev 11 Case Narrative
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this October 1, 2015

Certified Document Number: 62545110 Total Pages: 5

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com