in the Interest of T. R. H. v. Department of Family and Protective Services

Opinion issued November 22, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-16-00450-CV
———————————
IN RE T. R. H.

On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2015-02985J

MEMORANDUM OPINION

This is an accelerated appeal from a judgment terminating Mother’s parental

rights to T.R.H. We affirm.

BACKGROUND

Mother had two children. The oldest, K.H, was 11-months old when T.R.H.

(the subject of this suit) was born. Sometime in the year following T.R.H.’s birth,
K.H. died. His death was ruled a homicide, and charges were brought against his

caregiver. Mother maintained custody of T.R.H.

When CPS recommended a psychiatric evaluation of Mother following

K.H.’s death, she cooperated. K.H.’s death was the first occasion CPS (“the

Department”) had to investigate Mother. Mother failed a drug test, and Mother’s

caseworker learned that Mother had a history of leaving her children with various

caregivers. The Department opened an investigation out of concern that Mother

“may not possess the cognitive abilities to care for” T.R.H.

During her evaluation, Mother reported that she has no work history and had

dropped out of high school, but had returned to try to earn a high school diploma.

She reported to the doctor that she smokes marihuana every day. The evaluator

was concerned about Mother’s taking inadequate care of her 1-year-old son,

T.R.H., during the evaluation. Mother did not bring T.R.H. to the evaluation in a

car seat, and T.R.H. was wearing dirty clothes. T.R.H.’s diaper needed changing,

which Mother resisted doing until the evaluator insisted.

Mother had trouble controlling T.R.H.’s behavior. Mother was encouraged

to feed T.R.H. during the evaluation, but Mother only provided him with a baby

bottle of water. The evaluator offered food, which immediately calmed T.R.H.

down. The evaluator surmised that either Mother was incapable of recognizing

when her child was hungry or that Mother did not have food to feed him. When it

2
became clear that T.R.H. was sleepy, the evaluator observed that Mother lacked

“maternal connection to the naptime process” and did not know how to “utilize any

soothing techniques with the child.”

Mother’s intelligence was estimated to be in the below-average range, and

she demonstrated memory difficulties. But she exhibited an appropriate range of

emotional expression. Mother showed concern regarding the wellbeing of her

children and expressed a desire to raise her children.

The following opinion and recommendations were given following the

evaluation:

One challenge for [Mother] is her history of leaving her children with
various caregivers. It does not appear as if the client uses good and/or
rationale judgment regarding the care of her children. Another
challenge is her cognitive abilities. Cognitive testing suggests she falls
in the below average range of intellectual functioning. Another
challenge for her is being overwhelmed with caring for her son. It is
unclear at what age the child would need to be in order for [Mother] to
care for the child; however, two scenarios can be given. The child
would have to be old enough to care for himself independently and/or
[Mother] would have to acquire the skills to needed to care for her
son. Another challenge is the possibility of unresolved grief regarding
the death of her first-born son, [K.H.]. One strength is her ability to
comply with the CPS requirements. She appeared concerned about the
well being of her son but it is unclear if she has a good understanding
of what is needed to adequately raise him.
Given this information, the following treatment suggestions are
outlined below.
RECOMMENDATIONS
1. [Mother] would benefit from parenting classes to assist her in
understanding, and responding to the physical, emotional,
developmental, and intellectual needs of her children.
3
 2. [Mother] would benefit individual counseling. She has a
number of unresolved family issues that may be impacting her
ability to effectively parent.
3. [Mother] would benefit from grief counseling. It is unclear
whether or not [Mother] appropriately grieved the death of her
first-born son, [K.H.], and her inability to appropriately grieve
may be impacting her parenting skills.
4. [Mother] would benefit from a referral from the Texas
Workforce Commission. [Mother] reported she has never been
employed. Based on behavioral observations, she may not
possess the skills needed to secure employment. She may be
able to utilize their services in order to secure employment
appropriate for her level of skills.

A. Mother’s Family Service Plan
The Department did not seek to remove T.R.H. from Mother’s care or seek

temporary managing conservatorship until Mother tested positive for marihuana

and cocaine. On July 8, 2015, after T.R.H. was removed, Mother agreed to a

Family Service Plan. The goal was reunification with Mother, and the target

services completion date was June 6, 2016. The July 8, 2015 Family Service Plan

identified the following concerns, goals, and required services:

INITIAL CONCERNS:

[Mother] has not demonstrated that she is able to care for her young
son.
Prior to CPS removing [Mother]’s son, it was recommended that she
complete services In Family Based Safety Services and she did not.
[Mother] did not complete the required services in FBSS.
[Mother] does not understand the reason for CPS intervention and
continues to minimize the agency’s efforts to assist her.

4
SERVICE PLAN GOALS (CHANGES NEEDED TO REDUCE
RISK):
[Mother] will show the ability to parent and protect the child.
[Mother] will learn how her emotions and behavior may effect the
emotions and behaviors of the child.
[Mother] will demonstrate the ability to put the needs of her child
ahead of her own.
[Mother] will demonstrate the ability to protect child from future
abuse or neglect and will show concern for future safety of her child.
[Mother] will demonstrate an ability to change the pattern of behaving
that resulted in abuse/neglect.

TASKS AND SERVICES

1. COMPLETE and PARTICIPATE in INDIVIDUAL
COUNSELING: [Mother] will participate in and successfully
complete Individual therapy. DFPS will refer for these
services. If the client reschedules/misses two appointments then
she will be financially responsible for obtaining the service.
2. [Mother] will provide her current caseworker with any and all
sources of income for herself by the 15th of each month. Proof
of income may include: Social Security award letters, Food
Stamp certification papers, pay check stubs. If [Mother] is not
currently working, she must provide her caseworker with proof
of her registration with The Worksource, and a list of at least 3
employers (name and telephone number) that she has submitted
an application and/or resume to per week. This list is due to the
DFPS caseworker by the last day of each month.
3. MAINTAIN/OBTAIN STABLE HOUSING: [Mother] will
maintain stable and safe housing for a minimum of six months
consecutively. She will demonstrate that she can provide
housing that will protect her children and provide the
consistency and stability that they need. [Mother] will provide
the DFPS worker with a current lease along with current utility
bills to show proof of a safe and structured home environment.
In the event that another occupant moves into [Mother] current
residence, she will provide the current CPS caseworker with the

5
 current occupant’s name, date of birth, social security numbers,
and copy(s) of needed Identifying information for that person
within 48 hours of their occupying the current residence.
[Mother] will allow her DFPS caseworker access to her current
residence to verify safety. If [Mother] moves, she will notify
her current caseworker within 24 hours of the relocation, and
provide new leasing information for the current residence.
4. MAINTAIN CONTACT WITH THE AGENCY: [Mother] will
maintain contact with her assigned DFPS caseworker. . . . . .
[Mother] is to provide her case worker with accurate phone
number and address so that she can be notified of family visits
and information pertaining to her case. In the event that
[Mother] is unable to be reached, she needs to ensure that her
case worker has an emergency contact number that she can be
reached at.
5. [Mother] will participate in drug/alcohol testing upon request
by DFPS or a provider. [Mother] will show progress by testing
negative for drugs or alcohol. Any refusal of drug/alcohol
testing will be considered as testing positive. Any missed
appointment will be considered as testing positive.
6. [Mother] will participate and complete a drug/alcohol
assessment and follow all recommendations which may include
but are not limited to: in-patient treatment, out-patient
treatment, after-care programs, intensive programs, support
groups (such as AA or NA), and substance abuse therapy.
DFPS will refer for these services.
7. [Mother] will participate in and successfully complete a
psychosocial assessment and follow all recommendations.
DFPS will refer for these services. If the client
reschedules/misses two appointments then she will be
financially responsible for obtaining the service.

THE TRIAL

At the May 4, 2016 trial seeking termination of Mother’s parental rights,

neither Mother nor either alleged father attended, but there was an attorney

appointed to represent each of their interests, as well as the interests of T.R.H.
6
Before trial started, the following documents were admitted into evidence: (1)

Mother’s April 28, 2015 Psychological Evaluation, (2) Mother’s drug test results

from July 16, 2015 reflecting marihuana in her system, (3) Mother’s Family

Service Plan, and (4) a July 16, 2015 Status Hearing Order. Mother’s Department

caseworker, J. Green, testified. Green testified that the Department sought to help

Mother after the death of K.H., while T.R.H. remained in her custody. The

Department sought removal of T.R.H. after Mother failed her drug screens and it

was determined that Mother did not have the ability to care for T.R.H. and that she

was not following the safety plan put in place as a condition of T.R.H. remaining

in her care.

Green testified that T.R.H. is currently placed in a private agency foster-to-

adopt home. The Department considered a potential paternal aunt for adoption, but

her “DNA came back that she is 20 times unlikely to be the paternal aunt.” She

still remains a possibility though, as an adoptive placement, because it is possible

that she is a half sibling of one of T.R.H.’s alleged fathers, rather than a full sibling

as the Department initially understood.

Green testified that, out of the entire laundry list of services Mother was

required to perform under her Family Service Plan, the only task she completed

was the psychological assessment. Further, the Department timely referred Mother

for each of her services, and she did not show up the referrals. She did not attend

7
any requested random drug screening, and would not return to the psychologist that

did her initial evaluation for subsequent services, telling Green that “she didn’t

know how to get there.” Green testified that Mother is not employed, and does not

consistently visit T.R.H.

Green stated that the Department was seeking to terminate Mother’s parental

rights on three grounds (1) “she engaged in conduct that endangered her child

based on her drug tests,” (2) “she constructively abandoned her child based on her

failure to visit significantly during the case,” and (3) she “fail[ed] to work her

family plan of service.”

Finally, Green testified that termination of Mother’s rights was in T.R.H.’s

best interest because he in a “safe, stable environment.” He is in a long-term

placement that offers stability and is doing much better than he did when he was

with Mother.

On cross-examination, Green explained that Mother’s visits were sporadic.

She started visiting once a month. After she was an hour late to one of those visits,

Green made it Mother’s responsibility to call and schedule visits. After that,

Mother would visit once every two months.

Green also testified that the alleged paternal aunt’s home study would have

been approved and T.R.H. placed there if the Department had determined that the

alleged aunt was actually related to T.R.H. Because T.R.H. had a previous

8
relationship with this alleged aunt, placing him with her would have been in

T.R.H.’s best interest at that point.

Green further explained that T.R.H. was initially placed with a maternal

cousin. He was removed, however, because he was not being properly taken care

of. He has been in his current foster placement since then, for about a year. He is

doing very well in that placement, and the foster parent wishes to adopt him.

The court announced that it would terminate on all three grounds sought by

the Department and granted the ad litem’s request for a “no-move” order to ensure

T.R.H. was not moved out of his current placement without ad litem approval.

The court memorialize his ruling in a final judgment terminating Mother’s

rights on the following grounds:

6. Termination of Respondent Mother []’s Parental Rights
6.1. The Court finds by clear and convincing evidence that
termination of the parent child relationship between [Mother]
and the child, [T.R.H.], the subject of this suit is in the child’s
best interest.
6.2. Further, the Court finds by clear and convincing evidence that
[Mother] has:
6.2.1. engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the
physical or emotional well-being of the child, pursuant to
§161.001[(b)](1)(E), Texas Family Code;
6.2.2. constructive]y abandoned the child who has been in the
permanent or temporary managing conservatorship of the
Department of Family and Protective Services or an
authorized agency for not less than six months and: (1)
the Department or authorized agency has made

9
 reasonable efforts to return the child to the mother; (2)
the mother has not regularly visited or maintained
significant contact with the child; and (3) the mother has
demonstrated an inability to provide the child with a safe
environment, pursuant to §161,001[(b)](1)(N), Texas
Family Code;
6.2.3. failed to comply with the provisions of a court order that
specifically established the actions necessary for the
mother 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, pursuant to §161.001[(b)](1)(O),
Texas Family Code;
6.3 IT IS THEREFORE ORDERED AND DECREED that the
parent-child relationship between [Mother] and the child,
[T.R.H.], the subject of this suit is finally and forever
terminated.

ISSUES ON APPEAL

Mother raises the following issues on appeal:

Issue I: Was the evidence legally and factually sufficient to support
the termination of appellant’s parental rights under
§161.001(b)(1)(N)?
Issue II: Was the evidence legally and factually sufficient to support
the termination of appellant’s parental rights under
§161.001(b)(1)(E)?
Issue III: Was the evidence legally and factually sufficient to support
the termination of appellant’s parental rights under
§161.001(b)(1)(O)?
Issue IV: Was the evidence legally and factually sufficient to support
the best interest termination finding?

10
 APPLICABLE LAW AND STANDARD OF REVIEW

A parent’s rights to the “companionship, care, custody, and management” of

his or her child is a constitutional interest “far more precious than any property

right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982);

see also In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (“[A] parent’s interest in

maintaining custody of and raising his or her child is paramount.”). Therefore, we

strictly scrutinize termination proceedings and strictly construe the involuntary

termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20

(Tex. 1985). However, “the rights of natural parents are not absolute” and “[t]he

rights of parenthood are accorded only to those fit to accept the accompanying

responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). Recognizing that a

parent may forfeit his or her parental rights by their acts or omissions, the primary

focus of a termination suit is protection of the child’s best interests. Id.

In a case to terminate parental rights by the Department under § 161.001 of

the Family Code, the Department must establish, by clear and convincing

evidence, that (1) the parent committed one or more of the enumerated acts or

omissions justifying termination and (2) termination is in the best interest of the

child. TEX. FAM. CODE ANN. § 161.001(b) (West 2008). Clear and convincing

evidence is “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

11
established.” TEX. FAM. CODE ANN. § 101.007; In re J.F.C., 96 S.W.3d 256, 264

(Tex. 2002). “Only one predicate finding under section 161.001[(b)](1) is

necessary to support a judgment of termination when there is also a finding that

termination is in the child’s best interest.” A.V., 113 S.W.3d at 362.

In a legal sufficiency review in a parental-rights-termination case, the

appellate court should 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. J.F.C., 96 S.W.3d at 266. We assume

that the factfinder resolved disputed facts in favor of its finding if a reasonable

factfinder could do so, disregarding all evidence that a reasonable factfinder could

have disbelieved or found to have been incredible. Id. If, after conducting a legal

sufficiency review of the record, we determine that no reasonable factfinder could

form a firm belief or conviction that the matter that must be proven is true, then we

must conclude that the evidence is legally insufficient. Id.

In conducting a factual-sufficiency review in a parental-rights termination

case, we must determine whether, considering the entire record, including evidence

both supporting and contradicting the finding, a factfinder reasonably could have

formed a firm conviction or belief about the truth of the matter on which the

Department bore the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

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

12
factfinder could not have resolved the disputed evidence in favor of its finding.

J.F.C., 96 S.W.3d at 266. “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.” In re H.R.M., 209 S.W.3d

105, 108 (Tex. 2006).

A. Sufficiency of the Evidence to Support Termination Under Section
161.001(b)(1)(O)
Subsection (O) allows termination when the parent has failed to satisfy

conditions of a service plan. Specifically, it provides that the court can order

termination upon a finding, by clear and convincing evidence, that a parent:

(O) failed to comply with the provisions of a court order that
specifically established the actions necessary for the parent to obtain
the return of the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the child’s
removal from the parent under Chapter 262 for the abuse or neglect of
the child.

TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (West 2008). Texas courts generally

take a strict approach to subsection (O)’s application. In re D.N., 405 S.W.3d 863,

877 (Tex. App.—Amarillo 2013, no pet.). The burden of complying with the court

order is on the parent. Id. at 878. Courts do not measure the “quantity of failure”

or “degree of compliance.” Id. at 877. Rather, courts only look for a parent’s

failure to comply. See In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009,

13
no pet.) (holding subsection (O) does not intend an evaluation of a parent’s partial

achievement of plan requirements); see also In re A.W., 01-15-01030-CV, 2016

WL 3022824, at *7 (Tex. App.—Houston [1st Dist.] May 26, 2016, no. pet.)

(mem. op.) (holding substantial compliance with a court-ordered service plan may

be insufficient to avoid termination).

Despite this strict approach, the Department must present evidence that a

court-ordered plan established specific actions the parent must take for the return

of the child. D.N., 405 S.W.3d at 877–78. In other words, the service plan must be

specific enough to allow Mother’s compliance to be objectively measured. Id. at

878.

With regard to subsection (O), Mother’s sole argument on appeal is that the

Department did not establish by clear and convincing evidence that Mother failed

to complete her family plan services because the testimony and evidence on this

topic was allegedly too vague. Mother concedes that Green unequivocally testified

that, as of the date of trial, Mother had not completed any of her services required,

except the psychological assessment. Green testified that Mother did not go back

to the psychologist when she was referred, but Mother complains that Green did

not specify the date of the referral so that it is impossible to know if the Family

Service Plan was in effect. She makes the same argument about the drug tests that

Mother did not show up for. The Family Service Plan required Mother to

14
“randomly drug test” and Green testified that she requested that Mother take those

tests “on several occasions,” but that Mother failed to comply. Mother insists that

the Department should have put on evidence of each date that Mother did not

comply.

Taking Green’s evidence as a whole, we disagree with Mother that the

evidence is legally and factually insufficient to demonstrate that Mother did not

complete the required services under section 161001(b)(1)(O). Green testified that

Mother had not completed her service tasks, and then gave numerous examples

(such as not showing up for any requested drug test). Mother’s argument that

Green’s testimony lacked specific dates notwithstanding, the fair inference from

Green’s testimony, taken in context, is that she was discussing examples of

Mother’s failure to comply with services. It would be nonsensical to assume, as

Mother asks us to do, that despite the Family Service Plan required the Department

to subject Mother to random drug screens, the Department would have only

requested drug screens before the Family Service Plan was implemented, and

requested none during the time the Family Service Plan was in force.

The same is true of the referral to the psychologist that Mother was required

to see as part of the Family Service Plan. Green testified that Mother completed

her psychological evaluation before T.R.H. was removed. Green then testified that

she “referred her back to that same psychologist for subsequent services,” but that

15
Mother did not go because she said “she didn’t know how to get there.” Given

Green’s testimony that the Department was seeking termination because Mother

failed to complete her Family Service Plan and that Mother in fact did not

complete any services except the psychological assessment (coupled with the lack

of any evidence that Mother did complete any of her service tasks), we hold that

the trial court could have determined, by sufficient clear and convincing evidence,

that termination was warranted under § 161.001(b)(1)(O).

We thus overrule Mother’s third issue. Because a single ground under

section 161.001(b)(1) is sufficient to support termination if there is also sufficient

evidence that termination is in the child’s best interest, we need not address

Mother’s first and second issues challenges the sufficiency of the evidence to

support termination under §161.001(b)(1)(N) or §161.001(b)(1)(E). A.V., 113

S.W.3d at 362.

B. Sufficiency of the Evidence that Termination was in T.R.H.’s Best
Interest
As a matter of public policy, “the best interest of a child is usually served by

maintaining the parent-child relationship.” J.F.C., 96 S.W.3d at 294. Despite this

important relationship, the Texas Supreme Court has held that “protection of the

child is paramount.” A.V., 113 S.W.3d at 361.

Appellate courts examine the entire record to decide what is in the best

interest of the child. See In re E.C.R., 402 S.W.3d 239, 249–50 (Tex. 2013).

16
Courts weigh: (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 individual seeking custody;

(5) the programs available to assist the individual in promoting the child’s best

interest; (6) the plans for the child by individual or agency seeking custody; (7) the

stability of the home or proposed placement; (8) the parent’s acts or omissions that

indicate that the existing parent-child relationship is not a proper one; and (9) any

excuse for the parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d 367,

371–72 (Tex. 1976). The Department need not prove every factor as a condition

precedent to parental termination. In re A.C., 394 S.W.3d 633, 642 (Tex. App.—

Houston [1st Dist.] 2012, no pet.). Furthermore, lack of evidence about some

factors does not preclude a factfinder from reasonably concluding that termination

is in the child’s best interest. Id.

Because the Department is the petitioner here, we begin with the statutory

mandate that “the prompt and permanent placement of the child in a safe

environment is presumed to be in the child’s best interest,” TEX. FAM. CODE ANN.

§ 263.307(a), whether that be with the parents or other permanent caregivers.

Mother argues that the evidence does not contain enough specific details

about T.R.H.’s foster parent to amount to clear and convincing evidence that

termination was in T.R.H.’s best interest. We disagree.

17
 Green’s testimony and the exhibits presented at trial demonstrated that,

while Mother loved her children, she was lacking in skills to care for T.R.H. She

had never been employed and had a history of leaving her children with various

random caregivers, one of which murdered her older child. She did not

demonstrate appropriate parenting in physically taking care of T.R.H. She

admitted to smoking marihuana frequently. Most importantly, even after being

offered numerous services to help to her gain the stability and skills to reunite with

T.R.H. (the Department’s original goal), she made no effort to avail herself of any

of those services or benefits. And she demonstrated an indifference to maintaining

a strong relationship with him, as she chose to only visit him once every other

month, despite being permitted more frequent visits. She did not show up the trial

to determine whether her parental rights would be terminated.

In contrast, Green testified that T.R.H. has been in a foster home for a year

that she characterized as a “safe, stable environment.” She opined that he is doing

much better than he did when he was with Mother. His foster parent wishes to

adopt T.R.H. and continue to provide him a permanent and stable home. Although

Mother argues that the Department should have offered more specific evidence

about the foster parent’s job, home, and living situation, we disagree that the lack

of those details rendered it inappropriate for the trial court to make a determination

that termination was in T.R.H.’s best interest. Contrasting the Department’s

18
positive assessment of the suitability and stability of T.R.H.’s current placement

with Mother’s lack of planning, action, or history of appropriate parenting, the trial

court had clear and convincing evidence to support its determination that

termination of Mother’s parental rights was in T.R.H.’s best interest.

CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

19