in the Interest of K.S.

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00339-CV
____________________

IN THE INTEREST OF K.S.

On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 16-06-06557-CV

MEMORANDUM OPINION

Appellant T.S. appeals from an order terminating his parental rights to his

minor child K.S.1 At the time of trial, K.S. was sixteen months old. We affirm.

Procedural History

S.D. is the mother of K.S. Intervenors Robert and Robin Rasco (“the Rascos”)

acted as foster parents to K.S. at some point during the pending suit. The Rascos

1
We use initials to protect the identity of the child. See Tex. R. App. P. 9.8.
Other family members and witnesses are also identified, as necessary, with initials
and designations based on their respective relationship with the children. See Tex.
Fam. Code Ann. § 109.002(d) (West Supp. 2017); Tex. R. App. P. 9.8.

1
filed a Petition in Intervention seeking to terminate the parental rights of T.S. and

S.D., and seeking to be appointed non-parent sole conservators of the child. S.D.’s

parents (the “maternal grandparents”) also filed a Petition in Intervention.

The case was tried before a jury. At the time of the jury trial, the Department

of Family and Protective Services (the “Department”) did not seek termination of

parental rights as to either T.S. or S.D., and the Department sought to return K.S. to

S.D. The Rascos opposed the plan of reunification and sought termination of S.D.’s

and T.S.’s parental rights. The Department did not present evidence at trial for

termination. The Department’s position at trial was that the child should be returned

to S.D.’s care. At the close of the Rascos’s evidence, the Department, T.S., and the

maternal grandparents joined S.D.’s motion for directed verdict, arguing that there

was a lack of evidence supporting termination.

The jury declined to terminate S.D.’s parental rights and appointed her as sole

managing conservator of the child. The jury found clear and convincing evidence

supported at least one of the alleged predicate statutory grounds for terminating

T.S.’s parental rights and that termination of T.S.’s parental rights is in the best

interest of the child. See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (O), (2) (West

2
Supp. 2017).2 The trial court entered a Final Order that named S.D. as the child’s

sole managing conservator, dismissed the Department from the suit, terminated

T.S.’s parental rights to the child under Family Code subsections 161.001(b)(1)(N)

and (O), and found that termination of T.S.’s parental rights is in the child’s best

interest. T.S. timely filed an appeal. S.D. did not appeal. The Department filed a

brief on appeal but is not seeking any relief. None of the Intervenors cross-appealed

nor did they file a response to Appellant’s Brief on appeal.

Issues Presented On Appeal

In issues one and two, T.S. challenges the legal and factual sufficiency of the

evidence supporting termination under section 161.001(b)(1)(N) and (O). In issue

three, T.S. challenges the legal and factual sufficiency of the evidence supporting

the finding that termination was in the best interest of the child.

Underlying Facts

On June 6, 2016, the Department filed a Petition for Order to Participate in

Services, naming S.D. as respondent. The affidavit in support of the petition alleged

that S.D. was K.S.’s mother, and that the Department had probable cause to

investigate due to a report of abuse or neglect of K.S., who was then four months

2
We cite to the current version of the statutes because the amendments do not
affect the outcome of this appeal.
3
old, based on S.D.’s having tested positive for amphetamines at the time K.S. was

born. A Parent Child Safety Placement plan was prepared for S.D., which required

that S.D. not use illegal substances and have only supervised visitation with K.S.

On July 6, 2016, the Department filed its First Amended Petition, naming T.S.

as the “alleged father” and requesting appointment of the Department as temporary

sole managing conservator of K.S. The First Amended Petition alleged that although

T.S. had been served with citation, he had not responded by filing an admission of

paternity or counterclaim nor had he registered with the paternity registry. The

Department alleged that T.S. had endangered the well-being of K.S., had

constructively abandoned K.S., had failed to comply with a court-ordered service

plan, and had previously had his parental rights terminated as to another child. On

July 7, 2016, the court signed an order naming the Department as temporary sole

managing conservator of K.S. On December 9, 2016, T.S. filed his pro-se answer,

which included a general denial and an admission of paternity as to K.S., and a

request for an attorney.

On February 22, 2017, the Rascos, K.S.’s foster parents, filed an Emergency

Motion to Stay Placement and Application for Temporary Restraining Order and a

petition in intervention. The emergency motion alleged that on February 20, 2017,

the Rascos “were notified by [the Department] that the child would be moved and

4
placed in Victoria, Texas on February 24, 2017.” The Rascos requested that the trial

court approve any change in placement of K.S. The petition in intervention sought

termination of both S.D.’s and T.S.’s parental rights. As to T.S., the Rascos’s petition

in intervention alleged that T.S. had voluntarily abandoned K.S. with an intent not

to return, had endangered K.S.’s well-being, had failed to provide support for K.S.,

had failed to comply with the court-ordered service plan, had previously had his

parental rights to another child terminated, had used a controlled substance, and had

engaged in criminal conduct. On February 27, 2017, the trial court appointed an

attorney ad litem to represent T.S.

On March 1, 2017, the “maternal grandparents” also filed a petition in

intervention, and they filed an amended petition in intervention on March 9, 2017.

The maternal grandparents sought to be named joint managing conservators of K.S.

and argued that appointment of S.D. or T.S. as sole managing conservator would not

be in K.S.’s best interest.

On March 17, 2017, T.S. filed a counterpetition, alleging that he is K.S.’s

biological father and requesting that he be named joint managing conservator of K.S.

together with the child’s mother S.D. In his counterpetition, T.S. alternatively

requested that T.S. be appointed possessory conservator with unsupervised or at least

restrictive supervised visitation.

5
 The Department filed its Second Amended Petition on May 3, 2017, naming

T.S. the “alleged father” of K.S. The Second Amended Petition requested that the

court determine whether T.S. was K.S.’s father, sought to have K.S. returned to S.D.,

for S.D. to be named sole managing conservator, and to order T.S. to pay retroactive

support should T.S. be determined to be K.S.’s father.

The Jury Trial

A jury trial was held on May 8 through 12, 2017. T.S. was not present at trial,

although he appeared through his attorney ad litem. The jury charge asked the jury

to decide (1) whether S.D.’s parental rights should be terminated, (2) whether T.S.’s

parental rights should be terminated, and (3) if S.D.’s rights should not be

terminated, whether S.D., the maternal grandparents, or the Rascos should be

appointed managing conservator of K.S. As to T.S., the jury charge asked the jury

to determine whether there was clear and convincing evidence that T.S. had

committed one or more of the following acts:

1. . . . knowingly placed or knowingly allowed the child to remain
in conditions or surroundings which endanger the physical or emotional
well-being of the child;
2. . . . 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;
3. . . . constructively 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:
6
 (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;
4. . . . failed to comply with the provisions of a court order that
specifically established the actions necessary for him 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 for the abuse or neglect of the child; or
5. . . . used a controlled substance, as defined by Chapter 481,
Health and Safety Code, in a manner that endangered the health or
safety of the child, and:
(i) failed to complete a court-ordered substance abuse treatment
program; or
(ii) after completion of a court-ordered substance abuse treatment
program, continued to abuse a controlled substance.

The jury found that S.D.’s parental rights should not be terminated, that T.S.’s

parental rights should be terminated, and that S.D. should be appointed sole

managing conservator of K.S.

Standard of Review

The decision to terminate parental rights must be supported by clear and

convincing evidence, that 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 established.” Tex. Fam. Code Ann. § 101.007 (West 2014); In the

Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the

7
parent committed one or more predicate acts or omissions and that termination is in

the child’s best interest. See Tex. Fam. Code Ann. § 161.001; see also In re J.L., 163

S.W.3d at 84. We will affirm a judgment if any one of the grounds is supported by

legally and factually sufficient evidence and the best interest finding is also

supported by legally and factually sufficient evidence. In the Interest of C.A.C., No.

09-10-00477-CV, 2011 Tex. App. LEXIS 3385, at **13-14 (Tex. App.—Beaumont

May 5, 2011, no pet.) (mem. op.).

Under a legal sufficiency review, we review 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.” In the Interest of J.F.C.,

96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could and we disregard all

evidence that a reasonable factfinder could have disbelieved or found to have been

incredible. Id. If no reasonable factfinder could form a firm belief or conviction that

the matter that must be proven is true, the evidence is legally insufficient. Id.

By failing to file a motion for new trial, T.S. failed to preserve his factual

sufficiency complaints for appellate review. See Tex. R. Civ. P. 324(b)(2); In the

Interest of M.S., 115 S.W.3d 534, 547 (Tex. 2003); In the Interest of J.B., No. 09-

16-00442-CV, 2017 Tex. App. LEXIS 4543, at *21 (Tex. App.—Beaumont May 18,

8
2017, no pet.) (mem. op.); In the Interest of A.M., 385 S.W.3d 74, 78-79 (Tex.

App.—Waco 2012, pet. denied). Therefore, we only address whether the evidence

was legally sufficient.

Statutory Predicate Grounds for Termination

In his first issue, T.S. argues that the evidence was legally and factually

insufficient to terminate T.S.’s parental rights under section 161.001(b)(1)(N) of the

Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(N). In his second issue, he

argues that the evidence was legally and factually insufficient to terminate his

parental rights under section 161.001(b)(1)(O) of the Family Code. Id.

§ 161.001(b)(1)(O).

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 interests. See In the Interest of A.V. and J.V., 113 S.W.3d 355, 362

(Tex. 2003) (applying previous version of the statute); In the Interest of S.F., 32

S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.) (same). Therefore, we

will affirm the termination order if the evidence sufficiently establishes any statutory

ground upon which the trial court relied in terminating parental rights as well as the

best interest finding. See In re A.V. and J.V., 113 S.W.3d at 362.

9
 The jury charge asked the jury to determine whether there was clear and

convincing evidence that T.S. had committed one or more of the acts that would

constitute a statutory predicate for termination of parental rights as outlined in the

section 161.001(b)(1)(D), (E), (N), (O), and (P) of the Texas Family Code. See Tex.

Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O), and (P). In its final order, the

trial court stated that the jury found by clear and convincing evidence that T.S. had

constructively abandoned K.S., had failed to comply with his court-ordered service

plan, and that termination was in the best interest of the child. Id.

§ 161.001(b)(1)(N), (O), (2).

Section 161.001(b)(1)(O) allows termination of the parent-child relationship

when a 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[.]

Id. “Texas courts generally take a strict approach to subsection (O)’s application.”

In the Interest of C.A.W., No. 01-16-00719-CV, 2017 Tex. App. LEXIS 2029, at *11

(Tex. App.—Houston [1st Dist.] Mar. 9, 2017, no pet.) (mem. op.) (citing In the

Interest of D.N., 405 S.W.3d 863, 877 (Tex. App.—Amarillo 2013, no pet.)); In the

10
Interest of A.M.M., No. 04-15-00638-CV, 2016 Tex. App. LEXIS 3498, at *9 (Tex.

App.—San Antonio Apr. 6, 2016, no pet.) (mem. op.). Section 161.001(b)(1)(O)

“looks only for a parent’s failure to comply with a court order, without reference to

[the] quantity of failure or degree of compliance.” In re D.N., 405 S.W.3d at 877.

In this case, a temporary order signed July 22, 2016, was entered as an exhibit,

which ordered T.S. to undergo a psychological or psychiatric evaluation, to attend

counseling sessions, to attend parenting sessions, and to submit to drug and alcohol

assessment and testing. In addition, there was uncontroverted testimony by a

caseworker for the Department that T.S. was made aware of a court-ordered family

service plan and that T.S. failed to complete the requirements of the plan.3 A status

report prepared by two representatives of the Department in August of 2016 was

entered as an exhibit. This status report stated that T.S. had not provided the

Department with updated contact information and that “father has not been in contact

with the Department. Father has been hostile and aggressive towards DFPS staff.”

Viewing the evidence as to subsection (O) in the light most favorable to the jury’s

finding, we conclude that the jury reasonably could have formed a firm belief or

3
Appellant argues that no service plan for T.S. was offered into evidence.
However, Appellant cites no authority requiring the service plan to be in evidence.
See Tex. R. App. P. 38.1(i). We note that the clerk’s record in this matter includes a
copy of a service plan for T.S.
11
conviction that T.S. failed to comply with the provisions of a court-ordered service

plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(O); see also In the Interest of T.B.,

No. 09-17-00230-CV, 2017 Tex. App. LEXIS 10530, at **5-11 (Tex. App.—

Beaumont Nov. 9, 2017, no pet. h) (mem. op.) (undisputed evidence of mother’s

failure to comply with court-ordered service plan was legally sufficient to support

termination under subsection (O)); In the Interest of T.T., 228 S.W.3d 312, 319-21,

326 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (affirming termination

where the mother failed to comply with some of the requirements of the plan); In the

Interest of C.D.B., 218 S.W.3d 308, 311-12 (Tex. App.—Dallas 2007, no pet.)

(affirming termination where mother only partially complied with service plan).

Accordingly, we conclude that the jury’s verdict and the final order of termination

as to subsection (O) are supported by legally sufficient evidence. Having determined

that the evidence is legally sufficient to support termination under subsection (O),

we need not address the sufficiency of the evidence as to subsection (N). See In re

A.V., 113 S.W.3d at 362 (Applying former version of the statute and concluding that

“[o]nly one predicate finding under section 161.001(1) is necessary to support a

judgment of termination when there is also a finding that termination is in the child’s

best interest.”). We overrule Appellant’s first and second issues.

12
 Best Interest of the Child

Appellant’s third issue challenges the sufficiency of the evidence supporting

the finding that termination of his parental rights is in the child’s best interest.

Appellant argues that “no evidence” was offered at trial regarding whether

terminating T.S.’s parental rights was in the best interest of K.S.

Trial courts have wide latitude in determining a child’s best interest. See

Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Nevertheless, there is a

strong presumption that the best interest of a child is served by keeping the child

with his or her natural parent. In the Interest of R.R., 209 S.W.3d 112, 116 (Tex.

2006); In the Interest of D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th

Dist.] 2012, no pet.). Prompt and permanent placement of the child in a safe

environment is also presumed to be in the child’s best interest. Tex. Fam. Code Ann.

§ 263.307(a) (West Supp. 2017).

The Family Code outlines a number of factors to be considered in determining

whether a parent is willing and able to provide a safe environment for a child. Id.

§ 263.307(b). Other factors that may be considered when determining whether

termination of parental rights is in the best interest of the child 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,

13
(4) the parental abilities of the individuals seeking custody, (5) 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 that 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. See Holley v. Adams, 544 S.W.2d 367,

371-72 (Tex. 1976) (setting forth the “Holley factors” and noting “[t]his listing is by

no means exhaustive[]”). No particular Holley factor is controlling, and evidence of

one factor may be sufficient to support a finding that termination is in the child’s

best interest. See M.C. v. Texas Dep’t of Family & Protective Servs., 300 S.W.3d

305, 311 (Tex. App.—El Paso 2009, pet. denied) (“Undisputed evidence of just one

factor may be sufficient to support a finding that termination is in the best interest of

a child.”) (citing In the Interest of C.H., 89 S.W.3d 17, 27 (Tex. 2002)); In the

Interest of A.P., 184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.).

The best interest determination may rely on direct or circumstantial evidence,

subjective facts, and the totality of the evidence. In the Interest of N.R.T., 338 S.W.3d

667, 677 (Tex. App.—Amarillo 2011, no pet.). If, in light of the entire record, no

reasonable factfinder could form a firm belief or conviction that termination was in

K.S.’s best interest, then we must conclude that the evidence is legally insufficient

14
to support termination. See In re J.F.C., 96 S.W.3d at 266. A parent’s criminal

history, admissions, past conduct, and inability to maintain a lifestyle free from

arrests and incarcerations may be relevant to the best interest determination. See In

the Interest of D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.).

Parental and caregiver illegal drug use and drug-related criminal activity likewise

support the conclusion that the child’s surroundings endanger her physical or

emotional well-being. See In the Interest of J.T.G., 121 S.W.3d 117, 125 (Tex.

App.—Fort Worth 2003, no pet.) (citing In the Interest of S.D., 980 S.W.2d 758, 763

(Tex. App.—San Antonio 1998, pet. denied)).

Appellant contends that there was “no evidence” that termination of T.S.’s

parental rights was in K.S.’s best interest. We disagree. S.D. testified that in July of

2016, when she was living with K.S. and T.S., T.S. called an ambulance one night

because she was hallucinating after she and T.S. had taken “meth” and CPS

subsequently took K.S. away. A special investigator for the Department testified that

she drafted a safety plan in this case and that T.S. refused to sign it. P.H. testified

that K.S. lived in her home for a time, and P.H. knew that both S.D. and T.S. had a

history of using “meth” and that T.S. had refused to take drug tests. A former

investigator for CPS and worker at Children’s Safe Harbor testified that she spoke

with T.S. about taking a drug test and that T.S. refused to do so. A caseworker for

15
the Department testified that he met with T.S. to go over his service plan, T.S.

refused to sign the plan, and at the time of trial, T.S. was not in compliance with his

plan. The caseworker read portions of a status report, which included the following

regarding T.S.:

. . . Father has substantial criminal history. Father has reported
drug history and has declined to take a drug screening. Father has
demonstrated irate emotional state in dealing with the Department.
Father has not demonstrated a safe and stable environment. Father has
not provided proof of employment. . . . Both mother and father have not
provided a proof of safe and stable living environment. Father has
considerable criminal history. Both mother and father . . . have drug
use. Father has demonstrated negative interaction with the Department.
. . . Father is hostile and uncooperative with the Department. . . .

A home assessment report for S.D.’s parents that was completed by a representative

of the Department in November of 2016 stated that T.S. was then incarcerated and

that K.S. was “exposed to drugs while in the home with the biological parents.”

Judgments of conviction for T.S. were entered into evidence, including a 2000

conviction for driving with a suspended license and a 2003 conviction for burglary

of a motor vehicle.

Viewing the record as a whole, we find that the evidence legally sufficient to

support the trial court’s finding that termination of T.S.’s parental rights is in the

best interest of the child. We therefore overrule issue three. Having already found

sufficient evidence to support at least one statutory predicate for termination, we

16
affirm the trial court’s final order. See In re C.A.C., 2011 Tex. App. LEXIS 3385, at

**13-14.

AFFIRMED.

_________________________
LEANNE JOHNSON
Justice

Submitted on December 4, 2017
Opinion Delivered February 1, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.

17