in the Interest of A.H.

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00025-CV
__________________

IN THE INTEREST OF A.H.

__________________________________________________________________

On Appeal from the 88th District Court
Hardin County, Texas
Trial Cause No. 59009
__________________________________________________________________

MEMORANDUM OPINION

Appellant, L.H. (Father), appeals the trial court’s order terminating his

parental rights to A.H. 1 Father argues that the trial court erred when it (1) initially

ordered the removal of A.H. without, among other factors, showing an urgent need

or that A.H.’s physical health was in danger; (2) when it terminated his parent-child

relationship based on his failure to comply with the service plan, and (3) determined

1
We identify minors in appeals in parental-rights termination cases by using an
alias to protect the minor’s identity and all members of the child’s family. See Tex.
R. App. P. 9.8(a), (b).
1
that terminating his parent-child relationship was in the best interest of A.H. We

affirm the trial court’s judgment.

Burden of Proof and Standards of Review

Parental rights can be terminated upon proof by clear and convincing evidence

that the parent committed an act prohibited by section 161.001(b)(1) of the Family

Code and termination is in the best interest of the child. Tex. Fam. Code Ann. §

161.001(b)(1), (2) (West Supp. 2018); In re J.O.A., 283 S.W.3d 336, 344 (Tex.

2009); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Due to the severity and

permanency of the termination of parental rights, the burden of proof is heightened

to the clear and convincing evidence standard. See Tex. Fam. Code Ann. §

161.001(b) (West Supp. 2018); In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).

“‘Clear and convincing evidence’ means the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West

2014). This is an intermediate standard and falls between the preponderance standard

of ordinary civil proceedings and the reasonable doubt standard in criminal

proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); In re D.T., 34

S.W.3d 625, 630 (Tex. App.—Fort Worth 2000, pet. denied). Therefore, the proof

must be more than merely the greater weight of the credible evidence but need not

2
be unequivocal or undisputed. Addington, 588 S.W.2d at 570. This heightened

burden of proof results in a heightened standard of review. In re J.F.C., 96 S.W.3d

at 265–66.

In reviewing the legal sufficiency of the evidence in a parental termination

case, we must consider “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 re J.O.A., 283 S.W.3d at 344 (quoting In re

J.F.C., 96 S.W.3d at 266). We assume the factfinder resolved disputed facts in favor

of its finding if a reasonable factfinder could do so, and we disregard all evidence

that a reasonable factfinder could have disbelieved. Id. (quoting In re J.F.C., 96

S.W.3d at 266).

In reviewing the factual sufficiency of the evidence in a parental termination

case, we “give due consideration to evidence that the factfinder could reasonably

have found to be clear and convincing.” In re J.F.C., 96 S.W.3d at 266. We must

determine “‘whether the evidence is such that a factfinder could reasonably form a

firm belief or conviction about the truth of the State’s allegations.’” Id. (quoting In

re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “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

3
conviction, then the evidence is factually insufficient.” Id. We give due deference to

the factfinder’s findings, and we cannot substitute our own judgment for that of the

factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is “‘the

sole arbiter when assessing the credibility and demeanor of witnesses.’” Id. at 109

(quoting In re J.L., 163 S.W.3d at 86–87).

Background

The record shows that A.H. was eight years old and living with her mother2

(Mother), when the Department of Family and Protective Services (the Department)

first became involved in this case. A.H. was removed from her mother’s care in

August 2018, due to Mother’s drug use and erratic behavior. Father was not living

with A.H. when the removal occurred. Department Caseworker Boyd testified that

at the time of A.H.’s removal, Father was the non-offending parent and not the

reason for the removal by the Department. After A.H. was removed from Mother’s

care, Father was contacted by the Department and was provided a service plan for

reunification with the child. The service plan was created, in part, to address Father’s

mental health issues and drug usage. Father admitted he was aware of Mother’s

2
The trial court also terminated the parental rights of Mother to A.H. and her
older sibling, who is unrelated to Father. Mother does not appeal the termination,
and therefore, we discuss the facts as to Mother only where necessary for our review
regarding Father’s appeal.
4
behavior and drug usage, and he was aware the child was living with Mother in that

environment. The Department’s conditions for reunification with the child required

Father to complete a service plan. The record shows numerous violations of the

service plan by Father, and Boyd testified that at the time of the trial in January 2019,

Father was noncompliant with the service plan.

Boyd detailed several areas of the service plan that Father failed to abide by

or complete. Boyd stated that initially Father made significant contact with the

Department and attempted to complete his service plan. Boyd testified that the

Department was concerned about Father’s drug addictions and set out requirements

in the service plan for Father, including outpatient therapy and random drug testing,

in an attempt to address his drug usage. Father did not complete outpatient services

as required by the service plan to address his drug usage. In addition, Father’s service

plan required that he have a negative drug test to visit A.H. While Father had a few

negative drug tests, Father tested positive more than once for illegal narcotics,

including methamphetamine and cocaine, resulting in the suspension of his

visitations. After Father tested positive for cocaine use in September 2018, the

Department requested he submit to another drug test in October, and Father failed to

appear for testing. Boyd stated that she had recently spoken to Father, and he

5
admitted to using methamphetamines in November and failed to submit to a drug

test before trial.

Boyd stated that Father is bipolar, and the service plan required him to address

his mental health. In a conversation with Boyd, Father admitted that he was not

“taking care” of his mental health, including taking his medication. Boyd expressed

concerns with Father’s unstable home life and infrequent communication with the

Department. During the pendency of this case, Father moved to Amarillo to live with

Mother’s sister-in-law, a person, according to Boyd, who had been accused of sexual

abuse by Mother’s other child. Boyd stated that in October 2018, contact with Father

became very erratic, and it was difficult to maintain communication with him. Any

contact was often hindered by the fact that Father changed phone numbers

frequently. In November 2018, Father contacted a caseworker in Amarillo and

started to work on his service plan when he was arrested and transferred to Jefferson

County. According to Boyd, when Father was released from Jefferson County, he

returned to Amarillo and was “unsuccessfully discharged for his drug counseling”

while trying to complete his outpatient treatment.

Boyd stated that Father loves A.H. and “does want his daughter back” even

though he makes “bad decisions on his drug use[.]”Boyd testified that she believed

Father’s rights should be terminated because Father’s nomadic lifestyle would not

6
provide A.H. with a stable home life, Father failed to comply with his medications

and treatment for his mental health, Father’s poor decision making could place A.H.

in potentially harmful relationships, and Father cannot “maintain a lifestyle that

doesn’t put [A.H.] in harm’s way of drug use.”

Father did not appear at trial but was represented by trial counsel. Boyd told

the trial court that she stressed to Father the importance of appearing for trial because

his parental rights could be terminated, and Father told her he “works…odd end jobs

and he just can’t miss work[.]” After a bench trial, the trial court signed an order

terminating Father’s parental rights to A.H. Father timely filed this appeal.

Issue One

In his first issue, Father argues that the trial court erred when it initially

ordered the removal of the child because there was not legally or factually sufficient

evidence to support the removal. Father argues that under section 262.105 of the

Texas Family Code, there had to be evidence that

(1) there was a danger to the physical health or safety of the child which
was caused by an act or failure to act of the person entitled to possession
and for the child to remain in the home is contrary to the welfare of the
child; (2) the urgent need for protection required the immediate removal
of the child and reasonable efforts, consistent with the circumstances
and providing for the safety of the child, were made to eliminate or
prevent the child’s removal; and (3) reasonable efforts have been made

7
 to enable the child to return home, but there is a substantial risk of a
continuing danger if the child is returned home.

See Tex. Fam. Code Ann. § 262.105(b)(2)(A)–(C) (West Supp. 2018).

Father disputes the circumstances that led to the trial court ordering the

removal of A.H. in February of 2018 and contends that “the Department did not

adhere to the removal statute in that the Department did not make reasonable efforts

for the child to not be removed.” On February 9, 2018, the trial court entered a

temporary order authorizing the emergency removal of A.H. In January 2019, the

trial court entered a final order terminating Father’s and Mother’s parental rights as

to A.H. “[A] temporary order is superseded by entry of a final order of termination,

rendering moot any complaint about the temporary order.” In re A.K., 487 S.W.3d

679, 683 (Tex. App.—San Antonio 2016, no pet.) (citations omitted); see also In re

K.P., No. 09-13-00404-CV, 2014 WL 4105067, at *13 (Tex. App.—Beaumont Aug.

21, 2014, no pet.) (mem. op.) (citations omitted) (holding that a parent’s complaint

about the temporary order authorizing the removal of the children was moot because

it was superseded by the final order.). Father’s complaints regarding the temporary

order are moot. We overrule Father’s first issue.

Issue Two

In his second issue, Father contends that the evidence is legally and factually

insufficient to support termination under section 161.001(b)(1)(O). See Tex. Fam.
8
Code Ann. § 161.001(b)(1)(O). In terminating Father’s parent-child relationship, the

trial court found that Father

failed to comply with the provisions of a court order that specifically
established the actions necessary for the father 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[.]

For the reasons we discuss below, we conclude the record contains clear and

convincing evidence to support the trial court’s finding that the Father failed to

comply with the provisions of its order that specifically established the actions

necessary for the Father to obtain the return of A.H. See id.

Generally speaking, Texas courts have taken a rather strict approach to
subsection (O)’s application. Subsection (O) looks only for a parent’s
failure to comply with a court order, without reference to quantity of
failure or degree of compliance. It does not provide a means of
evaluating partial or substantial compliance with a plan. Subsection (O)
also does not make a provision for excuses for the parent’s failure to
comply with the family service plan.

In re D.N., 405 S.W.3d 863, 877 (Tex. App.—Amarillo 2013, no pet.) (internal

quotations and citations omitted). Subsection O provides that the court may order

termination of the parent-child relationship if the court finds by clear and convincing

evidence that the parent has failed to comply with his court ordered terms and

conditions deemed necessary for the reunification of his child. Tex. Fam. Code Ann.

§ 161.001(b)(1)(O). “Subsection O may operate as a ground for termination when a
9
parent from whom children are not physically removed fails to comply with court-

ordered services.” In re K.S., No. 09-14-00222-CV, 2014 WL 4755500, at *5 (Tex.

App.—Beaumont Sept. 25, 2014, pet. denied) (mem. op.) (citation omitted).

Father argues that “legally and factually sufficient evidence was not presented

at the time of trial to establish by clear and convincing evidence that [Father] failed

to comply with the provisions of a court order[.]” More specifically, Father

complains because his service plan was not admitted at trial, the evidence presented

regarding his compliance with the service plan was not sufficient to establish that he

violated the service plan. Father states that there was no evidence presented at trial

that “[the caseworker] had gone over the plan of service with [Father] and what

efforts were made for him to understand what tasks and services were needed for

reunification to be necessary.” We are not persuaded by Father’s argument.

The clerk’s record contains the temporary order which required Father to

“comply with each requirement set out in the Department’s original, or any

amended, service plan[.]” Father’s service plan was also filed as part of the clerk’s

record. While Father’s service plan was not admitted into evidence at trial, we

presume the trial court took judicial notice of its file and contents, including the copy

of Father’s service plan filed with the trial court. See In re J.R., No. 02-18-001317-

CV, 2019 WL 237740, at *9 n.16 (Tex. App.—Fort Worth Jan. 17, 2019, pet. denied)

10
(mem. op.) ( “[A]though the family service plan was not admitted into evidence

during trial, we may presume that the trial court took judicial notice of the family

service plan.”); see also In re B.L.H., No. 14-18-00087-CV, 2018 WL 3385119, at

*7 (Tex. App.—Houston [14th Dist.] July 12, 2018, no pet.) (mem. op.) (quoting In

re J.J.C., 302 S.W.3d 436, 446 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)

(holding that an appellate court will presume that a trial court “judicially know[s]

what has previously taken place in the case tried before it, and the parties are not

required to prove facts that the trial court judicially knows”). In addition, there was

extensive testimony by Father’s caseworker about the requirements of the service

plan and her conversations with Father regarding his service plan. See In re M.C.,

No. 02-15-00290-CV, 2016 WL 354186, at *4 n.8 (Tex. App.—Fort Worth Jan. 28,

2016, no pet.) (mem. op.) (testimony of a mother’s service plan was sufficient when

“discussed at length” at trial in absence of the service plan being admitted at trial);

see also In re A.A.F.G., No. 04-09-00277-CV, 2009 WL 4981325, at *3 n.4 (Tex.

App.—San Antonio Dec. 23, 2009, no pet.) (mem. op.) (stating that although the

family service plan was not admitted at trial, evidence of the service plan was

“presented by the Department delineating several requirements set forth in the

plan”).

11
 Father’s service plan was filed with the District Clerk. The service plan

instructed Father, among other requirements, to attend outpatient therapy to address

his drug use, maintain his mental health, receive services related to addressing his

mental health, provide a stable, drug free home, and test negative for narcotics to

have visitation with his daughter. Boyd testified that the Department had many

conversations with Father about his service plan, and Father was aware of his service

plan and its requirements. While Father initially maintained contact with the

Department, eventually his communication with the Department became

inconsistent. Boyd testified that Father did attempt to attend some outpatient therapy,

but ultimately did not complete or failed the required therapy.

Evidence shows that during the pendency of this case, Father moved to

Amarillo, cohabitated with a person accused of sexual abuse, and failed to complete

his service plan requirements while in Amarillo. Father also failed to properly take

his medications and complete the required treatment for his mental health. Finally,

Boyd testified that although Father had some visitation with A.H., his visits were

suspended because he tested positive for cocaine and methamphetamine on two

separate occasions, and Father admitted to her that he had as recently as November

2018 “used methamphetamines[.]” As of the date of trial, Father’s visits had not

been reinstated because Father failed to appear for required drug testing. There was

12
extensive and detailed testimony provided by the caseworker regarding Father’s

requirements, Father’s understanding of the requirements, and his subsequent failure

to complete his service plan, and therefore, we hold that there was sufficient

evidence presented for the trier of fact to reasonably find by clear and convincing

evidence that Father failed to comply and complete his service plan.

Father also alleges that subsection (O) requires evidence that a child was

initially removed for abuse and neglect. See Tex. Fam. Code. Ann. §

161.001(b)(1)(O). Father argues that there was insufficient evidence presented at

trial to prove by clear and convincing evidence that A.H. was removed from the

parent based on neglect or abuse of that child. Father contends that because he was

the non-offending parent and because his actions did not cause the removal of A.H.,

the Department failed to demonstrate that she was removed from his care due to

“abuse and neglect” as required by 161.001(b)(1)(O). See id.

[W]hile subsection O requires removal under chapter 262 for abuse or neglect,
those words are used broadly. Consistent with chapter 262’s removal
standards, “abuse or neglect of the child” necessarily includes the risks or
threats of the environment in which the child is placed. Part of that calculus
includes the harm suffered or the danger faced by other children under the
parent’s care. If a parent has neglected, sexually abused, or otherwise
endangered her child’s physical health or safety, such that initial and
continued removal are appropriate, the child has been “remov[ed] from the
parent under Chapter 262 for the abuse or neglect of the child.”

13
In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013) (citations omitted) (emphasis added);

In re D.R.A., 374 S.W.3d 528, 532 (Tex. App.—Houston [14th Dist.] 2012, no pet.)

(citation omitted).

Abuse and neglect are not defined in chapter 262. Nor does the chapter
indicate any special or technical meaning for the terms. When terms are
not defined and no technical or particular meaning is apparent from the
context, we apply the statute’s words according to their common usage.
Thus, whether removal under the chapter was for abuse or neglect
depends on the surrounding facts and circumstances and is generally
determined on a case-by-case basis.

In re S.M.R., 434 S.W.3d 576, 582–83 (Tex. 2014) (citations omitted). The Court

noted that Chapter 261 of the Texas Family Code provides a “nonexclusive list” of

factors to consider regarding abuse or neglect when investigating child abuse. Id.;

Tex. Fam. Code. Ann. § 261.001 (West Supp. 2018).

Although testimony at trial confirmed that Father was the non-offending

parent when A.H. was removed by the Department, Boyd testified that Father told

her he was aware of Mother’s issues and “aware of the things that were happening[.]”

According to Boyd, Father acknowledged that his inaction concerning Mother and

subsequent failure to intervene was “part of why this case…was going on.” While

Father argues that the testimony at trial failed to establish “abuse or neglect” as

required by 161.001(b)(1)(O), we disagree with Father’s assessment of the

testimony.

14
 [S]ubsection (O) does not require that the parent who failed to comply with a
court order be the same parent whose abuse or neglect of the child warranted
the child’s removal. Had the legislature intended such a requirement, it could
have easily provided that conservatorship be “as a result of the child’s removal
from the parent under Chapter 262 for the abuse or neglect of the child by the
parent.” It did not do so, and we presume it did not do so for a purpose.

In re S.N., 287 S.W.3d 183, 188 (Tex. App.—Houston [14th Dist.] 2009, no pet.);

see also In re K.S., 2014 WL 4755500, at *5 (“Subsection O may operate as a ground

for termination when a parent from whom children are not physically removed fails

to comply with court-ordered services.”). Boyd’s testimony regarding Father’s

acknowledgment of Mother’s issues and lack of intervention illustrates that he

knowingly placed A.H. in an environment that subjected her to abuse and neglect.

“The purpose of terminating parental rights…is not to punish parents or deter their

‘bad’ conduct, but rather to protect the interests of the child.” In re A.B., 437 S.W.3d

498, 504 (Tex. 2014) (citing In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)); see also

In re M.S., 115 S.W.3d 534, 548 (Tex. 2003). In reviewing the nonexclusive list

under Chapter 261, we note that the legislature has determined that neglect includes

the leaving of a child in a situation where the child would be exposed
to a substantial risk of physical or mental harm, without arranging for
necessary care for the child, and the demonstration of an intent not to
return by a parent, guardian, or managing or possessory conservator of
the child[.]

Tex. Fam. Code § 261.001(4)(A)(i). Therefore, it is immaterial whether abuse and

neglect on the fault of Father was the reason for A.H.’s removal, because his failure
15
to provide A.H. with a safe, stable environment in light of his admittance that he was

aware of Mother’s issues demonstrates neglect as required under subsection (O).

Viewing the evidence in the light most favorable to the trial court’s finding

under subsection 161.001(b)(1)(O), we conclude that the trial court reasonably could

have formed a firm belief or conviction the Father failed to comply with the

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

to obtain the return of A.H. See Tex. Fam. Code Ann. § 161.001(b)(1)(O); see also

In re T.T., 228 S.W.3d 312, 319–20 (Tex. App.—Houston [14th Dist.] 2007, pet.

denied) (affirming termination where the mother failed to comply with four of the

seven requirements and the father failed to comply with three of seven

requirements); In re C.D.B., 218 S.W.3d 308, 311–12 (Tex. App.—Dallas 2007, no

pet.) (affirming termination based on the mother’s partial compliance with service

plan).

Based on our review of the entire record, we further conclude the evidence is

such that the trial court reasonably could have formed a firm belief or conviction

about the truth of the State’s allegation that the Father failed to comply with court-

ordered services. See In re C.H., 89 S.W.3d at 25. We, therefore, conclude that the

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

section 161.001(b)(1)(O). We overrule Father’s second issue.

16
 Issue Three

Father argues in his third issue that terminating his rights to A.H. was not in

the best interest of the child, and the trial court erred when it terminated his parental

rights. Section 161.001 requires, in addition to a predicate ground, that the

Department prove termination of parental rights is in the best interest of the child.

Tex. Fam. Code. Ann. § 161.001(b)(2). In his third issue, Father challenges the legal

and factual sufficiency of the evidence to support the trial court's finding that

termination is in the best interest of the child.

“[T]here is a strong presumption that the best interest of a child is served by

keeping the child with a parent.” In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); see

also Tex. Fam. Code Ann. § 153.131(b) (West 2014). In reviewing whether

termination is in a child’s best interest, we consider a non-exhaustive list of factors:

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

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

parental abilities of the individuals seeking custody; (5) programs available to assist

these individuals to promote the best interest of the child; (6) plans for the child by

these individuals or by the agency seeking custody; (7) stability of the home or

proposed placement; (8) acts or omissions of the parent which may indicate that the

existing parent-child relationship is improper; and (9) any excuse for the acts or

17
omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). We

note that evidence supporting termination under the predicate grounds in section

161.001(b)(1) may also be considered as evidence regarding the best interest of the

child. See In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.]

2016, pet. denied) (citations omitted). In reviewing if it was in the best interest of a

child to terminate a parent-child relationship, courts have reviewed a parent’s

compliance with service plans and termination under subsection O. See In re E.C.R.,

402 S.W.3d at 249 (citing In re C.H., 89 S.W.3d at 28) (“Many of the reasons

supporting termination under subsection O also support the trial court’s best interest

finding.”); see also Tex. Fam. Code Ann. § 161.001(b)(1)(O).

Testimony established that while Father complied with parts of the service

plan, he failed to complete mandatory drug counseling, maintain his mental health,

provide a stable home, and abstain from illegal drug use. Evidence showed that

Father continued to fail his mandatory drug testing, even after the Department told

him he would lose visitation his with Daughter if he tested positive for narcotics. He

knowingly left A.H. in the care of Mother, admitting he was aware of Mother’s

issues that could have endangered his child. Finally, Father has failed to demonstrate

that he can provide stable housing or that he can stay away from individuals or

circumstances that may endanger A.H.’s emotional or physical health. Boyd testified

18
that A.H. currently lives with her maternal aunt and uncle, that the needs of the child

are being addressed, and that she believed it would be in the child’s best interest to

terminate Mother and Father’s parental relationship and allow the child to be placed

with the aunt and uncle. We find the evidence both legally and factually sufficient

to support the trial court’s finding that it was in A.H.’s best interest to terminate

Father’s parent-child relationship, and we overrule Father’s third issue. Having

overruled all of Father’s issues on appeal, we affirm the judgment of the trial court.

AFFIRMED.

_________________________
CHARLES KREGER
Justice

Submitted on April 15, 2019
Opinion Delivered May 23, 2019

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

19