in the Interest of M.G. and M.G., III, Children

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-19-00289-CV

IN THE INTEREST OF M.G. AND M.G., III, CHILDREN

On Appeal from the 320th District Court
Potter County, Texas
Trial Court No. 91,446-D-FM, Honorable Pamela C. Sirmon, Judge Presiding

February 7, 2020

MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.

In this accelerated appeal, appellant, Father, seeks reversal of the trial court’s

judgment terminating his parental rights to M.G. and M.G. III.1 Father challenges the

sufficiency of the evidence to support the trial court’s findings under the predicate

grounds, and the finding that termination is in the best interest of the children. We affirm

the judgment of the trial court.

1 To protect the privacy of the parties involved, we refer to the father of the children as “Father” and
to the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2018); TEX. R. APP. P.
9.8(b). The mother’s parental rights were also terminated in this proceeding. She has not appealed.
 Background

In February 2018, the Texas Department of Family and Protective Services

received a report alleging neglectful supervision and physical abuse of M.G. and M.G. III

by Father.2 The Department’s investigator found the home in a deplorable condition and

“not livable.” There was food and trash throughout the home. As a part of the

Department’s investigation, drug testing was performed, and Father tested positive for

methamphetamine and marijuana. The Department filed its petition for protection,

conservatorship, and termination of parental rights. Following an adversary hearing, the

Department was appointed temporary managing conservator, and M.G. and M.G. III were

placed in separate foster homes.

The Department scheduled a family group conference and sought Father’s input

on the creation of a family service plan. Father attended the conference and participated

in the creation of a family service plan. The caseworker reviewed the service plan with

Father after it was created and periodically reviewed it with him as he completed services.

The court-ordered service plan set out several tasks and services for Father to

complete before reunification with the children could occur. These tasks and services

included the following: complete a psychological evaluation and follow recommendations;

maintain regular contact with his caseworker; abstain from the use of illegal drugs; submit

to random drug screens; locate and maintain stable housing that is free from drugs and

2 Father was previously indicted for injury to a child, a state jail felony, for recklessly causing bodily
injury to M.G. in August of 2012. Father pleaded guilty and received four years’ deferred adjudication
community supervision. In January of 2015, Father’s deferred adjudication was revoked, he was
adjudicated guilty of injury to a child, and he was sentenced to confinement for one year in the Texas
Department of Criminal Justice.

2
violence; locate and maintain stable employment; complete a psychosocial assessment

and follow recommendations; attend individual counseling; take parenting classes;

participate in rational behavior therapy (RBT); complete the Battering Intervention and

Prevention Program (BIPP); and participate in a substance abuse assessment at

Outreach, Screening, Assessment, and Referral (OSAR) and follow recommendations.

The purpose of the family service plan was to work with Father to mitigate the reasons

for the removal of the children. The plan warned Father that if he was “unwilling or unable

to provide [M.G. and M.G. III] with a safe environment, [his] parental . . . rights may be

restricted or terminated or [M.G. and M.G. III] may not be returned” to him.

The trial court conducted a status hearing on May 17, 2018, and Father and his

counsel attended the hearing. Following the hearing, the trial court signed a status

hearing order, approving and adopting the Department’s service plan as an order of the

trial court. In the order, the trial court found that Father had reviewed, understood, and

signed the service plan.

Father satisfied the plan’s requirement that he maintain stable employment,

complete a psychosocial evaluation, participate in RBT, and attend a parenting class.

The Department caseworker scheduled an OSAR evaluation for Father three

times, but he failed to complete the evaluation. Father did not participate in individual

counseling or BIPP. Father admitted to his caseworker that he was continuing to use

drugs “because he’s coping with the stress of his children being removed.” He did not

consistently comply with the requirement to drug screen, but when he did submit to drug

screens, he tested positive for methamphetamine and marijuana.

3
 In March of 2019, the caseworker visited Father at his home and discussed

appropriate living conditions for the children. The caseworker took photographs of the

home which showed a lack of cleanliness and the presence of what appeared to be

methamphetamine on a kitchen counter. According to the worker, two photographs

showed “little baggies on the glass—the piece of glass” and “crumbling white residue on

the glass piece.” The last time the caseworker visited Father’s home, Father said he had

to leave, and the worker “was just able to see inside the living room, the kitchen, just

glancing in for a moment.” The general condition of the home at that time remained

unchanged from her previous visits to the home. The caseworker stated she would have

concerns with returning the children to Father’s home because of the condition of the

home and the presence of drugs. In April 2019, Father’s visitation with the children was

discontinued by the judge because of high levels of drug usage on his drug screens.

The maternal grandmother testified that the children need “some normal,” but she

was not able to have the children live with her. She said it was in the best interest of the

children for the Department to find an adoptive home for both children together. The

caseworker testified that Father loved the children and that there is a bond between the

children and Father. The Department’s plan for the children was termination of parental

rights and adoption. The Department had located an adoptive placement so that both

children could live together. The children assisted the Department in choosing an

adoptive family. The children have met the prospective adoptive family and the children

are very happy. The prospective adoptive family is “very happy as well.”

On June 27, 2019, the associate judge held a final hearing concerning termination

of Father’s parental rights to M.G. and M.G. III. Father did not appear. After testimony,

4
the associate judge terminated Father’s parental rights on the grounds set forth in Texas

Family Code section 161.001(b)(1)(L) and (O), and found that termination would be in

M.G. and M.G. III’s best interest. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp.

2019).3 The court appointed the Department as the managing conservator of M.G. and

M.G. III.

On appeal, Father raises three issues challenging the trial court’s order of

termination of his parental rights.

Standard of Review

When reviewing the legal sufficiency of the evidence in a termination case, the

appellate court should look at all the evidence in the light most favorable to the trial court’s

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.F.C., 96 S.W.3d 256, 266 (Tex. 2002). To

give appropriate deference to the factfinder’s conclusions, we must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do

so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or

found to have been not credible, but we do not disregard undisputed facts. Id. Even

evidence that does more than raise surmise or suspicion is not sufficient unless that

evidence is capable of producing a firm belief or conviction that the allegation is true. In

re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency

review, we determine that no reasonable factfinder could have formed a firm belief or

3 Further references to provisions of the Texas Family Code will be by reference to “section__” or
“§ __.”
5
conviction that the matter that must be proven was true, then the evidence is legally

insufficient and we must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).

In a factual sufficiency review, we must 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 Department’s allegations.

Id. We must also consider whether disputed evidence is such that a reasonable factfinder

could not have resolved the 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. Id.

Applicable Law

Involuntary termination of parental rights is a serious proceeding implicating

fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). A

parent’s right 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, 71 L. Ed. 2d 599 (1982); see In re M.S.,

115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination

proceedings and strictly construe the involuntary termination statutes in favor of the

parent. Holick, 685 S.W.2d at 20. 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) (citing In re

J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may forfeit his or

6
her parental rights by his or her acts or omissions, the primary focus of a termination suit

is protection of the child’s best interest. In re T.G.R.-M., 404 S.W.3d 7, 12 (Tex. App.—

Houston [1st Dist.] 2013, no pet.).

In a case to terminate parental rights by the Department under section 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. § 161.001(b). 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

established.” § 101.007 (West 2019); In re J.F.C., 96 S.W.3d at 264. Both elements

must be established and termination may not be based solely on the best interest of the

child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d

531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet.

denied). “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.” In re A.V., 113 S.W.3d at 362. We will affirm the termination order

if the evidence is both legally and factually sufficient to support any alleged statutory

ground the trial court relied upon in terminating the parental rights if the evidence also

establishes that termination is in the child’s best interest. In re K.C.B., 280 S.W.3d at

894-95.

The clear and convincing evidence standard does not mean the evidence must

negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,

902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall

7
that the trier of fact has the authority to weigh the evidence, draw reasonable inferences

therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the

right to resolve credibility issues and conflicts within the evidence and may freely choose

to believe all, part, or none of the testimony espoused by any particular witness. Id.

Where conflicting evidence is present, the factfinder’s determination on such matters is

generally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso

1997, no writ).

The appellate court cannot weigh witness credibility issues that depend on

demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d

570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,

the appellate court must defer to the factfinder’s determinations, as long as those

determinations are not themselves unreasonable. Id.

Analysis

Conviction for Serious Injury to a Child Under § 161.001(b)(1)(L)

In his first issue, Father challenges the legal and factual sufficiency of the evidence

to support the termination of his parental rights under section 161.001(b)(1)(L). Parental

rights may be terminated under subparagraph L if the trial court finds that the parent has

“been convicted or has been placed on community supervision, including deferred

adjudication community supervision, for being criminally responsible for the death or

serious injury of a child under . . . [certain] sections of the Penal Code.” TEX. FAM. CODE

ANN. § 161.001(b)(1)(L); In re D.J.V., No. 14-15-00419-CV, 2015 Tex. App. LEXIS 10961,

at *6 (Tex. App.—Houston [14th Dist.] Oct. 27, 2015, no pet.) (mem. op.).

8
 The Department offers no argument in response to this ground and relies solely

on subparagraph O as the statutory ground supporting termination. Because only one

statutory ground is required to support termination,4 we will evaluate the parties’

arguments pertaining to the legal and factual sufficiency of the evidence to support

termination under subparagraph O. In light of our ultimate conclusion, consideration of

Father’s first issue challenging termination under subparagraph L is pretermitted. TEX.

R. APP. P. 47.1.

Failure to Comply with Court-Ordered Service Plan Under § 161.001(b)(1)(O)

In his second issue, Father challenges the Department’s “failure to prove by clear

and convincing evidence each of the elements required to support a termination finding

under subsection (O).”

A trial court may terminate parental rights based on section 161.001(b)(1)(O) if the

Department establishes by clear and convincing evidence that the child was removed

under Chapter 262 because of abuse or neglect, the Department has been the permanent

or temporary managing conservator for at least nine months, a court order specifically

established the actions necessary for the parent to obtain the return of the child, and the

parent failed to comply with that order. § 161.001(b)(1)(O); In re J.F.C., 96 S.W.3d at

278-79. The Supreme Court has broadened the “abuse or neglect” elements to include

risks or threats of the environment in which the child is placed. In re E.C.R., 402 S.W.3d

239, 248 (Tex. 2013). In 2017, the Legislature amended section 161.001 and added

subsection (d), which provides that termination under subsection (b)(1)(O) is disallowed

4 In re A.V., 113 S.W.3d at 362.
9
if the parent proves, by a preponderance of the evidence, that the parent was unable to

comply with the specific provisions of the court order, and made a good faith effort to

comply but was unsuccessful through no fault of the parent. § 161.001(d). However, in

the absence of proof under subsection (d), we cannot consider “substantial compliance”

with a court-ordered family service plan to be the same as completion. In re C.R., No.

07-19-00009-CV, 2019 Tex. App. LEXIS 3082, at *9 (Tex. App.—Amarillo Apr. 16, 2019,

no pet.) (mem. op.).

This Court has held that, to support a termination order based on section

161.001(b)(1)(O), there must be a court order rather than simply a Department-generated

service plan. In re B.L.R.P., 269 S.W.3d 707, 710-11 (Tex. App.—Amarillo 2008, no pet.);

see also In re Z.B. & Z.B., No. 07-16-00026-CV, 2016 Tex. App. LEXIS 7420, at *13 (Tex.

App.—Amarillo July 12, 2016, no pet.) (mem. op.) (holding that failure of the appellate

record to contain a court order establishing the actions necessary for a parent to obtain

the return of his child defeats a termination order based on subsection (O)). A family

service plan that is signed by a parent alone does not satisfy the court-order requirement

of the statute until it has been specifically incorporated into a subsequently signed court

order. In re C.R., 2019 Tex. App. LEXIS 3082, at *14-15.

Section 161.001(b)(1)(O) makes clear that an order must be sufficiently specific to

warrant termination of parental rights for failure to comply with the order. In re N.G., 577

S.W.3d 230, 238 (Tex. 2019) (per curiam). On appeal, a court must consider whether the

order, and the service plan, if it was incorporated into the order, was sufficiently specific.

Id. A trial court order referenced by section 161.001(b)(1)(O) that establishes the actions

necessary for the parent to obtain return of a child in the Department’s custody is

10
sufficiently specific when the terms for compliance are set forth with certainty so that the

parent knows what duties and obligations have been imposed. Id. at 238.

A Department caseworker testified that the children were removed due to concerns

of the unsanitary conditions of the home and drug use by Father. During the Department’s

investigation, Father admitted to using methamphetamine and marijuana and drug testing

confirmed his drug use. The trial court entered an “order for protection of a child in an

emergency,” recognizing that the children had been removed and finding that there

existed a continuing danger to their physical health and safety. The Department was

appointed the temporary managing conservator of M.G. and M.G. III in March of 2018.

When the case was tried before the associate judge on June 27, 2019, M.G. and M.G. III

had been in the Department’s care for approximately fifteen months. This evidence

supports a finding of the first two elements required under subsection (O), that the children

were removed from a parent due to abuse or neglect and that the Department has been

the children’s temporary managing conservator for at least nine months.

The next two elements are whether there was a court-ordered service plan and

whether the parent complied with the provisions of the order. In this case, the temporary

order filed on April 3, 2018, ordered Father’s compliance “with each requirement set out

in the Department’s original, or any amended, service plan during the pendency of this

suit.” Father participated in the creation of his family service plan at the family group

conference. Additionally, Father and his attorney attended the status hearing on May 17,

2018, and the court made the following findings in its status hearing order:

2.1 The Court, having reviewed the pleadings, and considered all evidence
and information required by law, including all service plans and court reports
filed by the Department . . .

11
 2.5 The Court, having reviewed the service plans filed by the Department,
finds, except as specifically noted below, that the service plans are
reasonable, accurate, and in compliance with the previous orders of the
Court.
2.11 The Court finds that [Father] has reviewed the service plans.
2.12 The Court finds that [Father] has signed the plan.
4.1 IT IS ORDERED that, except as specifically modified by this order, the
permanency plans and recommendations for the child, set out in the service
plans filed with the Court, are approved and adopted by the Court as if set
out verbatim in this order.

At the status hearing, the associate judge found that Father has reviewed the

service plan and signed the plan. The status hearing order “approved and adopted”

Father’s filed service plan “as if set out verbatim in this order.” At the final hearing, the

service plan was admitted into evidence as an exhibit. The service plan is the only service

plan in the record for Father. There is no record evidence to indicate that Father’s plan

of service was changed or modified. Consequently, we conclude that this evidence

supports the finding that the family service plan in this case was court-ordered.

In addition to evidence supporting that the family service plan was court-ordered,

the record evidence also supports a finding that the family service plan was sufficiently

specific to support termination. The family service plan incorporated into the trial court’s

order in May 2018 specifically stated the actions and responsibilities that are necessary

to achieve the plan goal during the period of the service plan.5 Regarding those tasks,

the caseworker testified that Father completed some of these services, but not all of them.

5The plan detailed a task/service required, a timeframe for accomplishing the task/service, and an
address and contact information for service providers.
12
Father completed RBT, submitted to a psychosocial evaluation, maintained stable

employment, and attended one parenting class.

The caseworker also testified that Father has not maintained a drug-free lifestyle

or an appropriate home. The caseworker testified that Father has not consistently

complied with the requirement to drug screen and the drug screens he has taken have

been consistent with his admission of use of methamphetamine and marijuana.

Additionally, Father told the caseworker that he continued to use drugs during the case,

because “[h]e’s coping with the stress of his children being removed.” Less than three

months before trial, the home was “definitely not clean” and had food and trash

“everywhere.” Further, Father did not complete parenting classes, participate in individual

counseling, complete BIPP, or complete a substance abuse assessment by OSAR.

As to drug testing, the plan provided:
[Father] will maintain a drug-free lifestyle and abstain from the use of illegal
drugs or drugs for which he does not have a valid prescription. [Father] will
submit to random drug tests (including saliva test, UAs, and hair follicle) as
requested by the Department on the day requested and at the location
requested. [Father] will test “negative” during these random tests—
indicating non-use of illegal drugs or drugs for which he does not have a
valid prescription. Failure to take the random drug test on the date
requested will be considered as “positive” to the Department. It is also seen
as failure to follow the court order or service plan. The Department will pay
for the drug tests.

The plan then identified the name, address, and phone number of the site where drug

tests would be administered.

As to housing, the plan provided:
[Father] will locate and maintain stable housing that has working utilities and
is free from drugs and violence. [Father] will remove or lock up anything in
the home that poses a risk of harm to his children. [Father] will establish
daily routines and schedules, and learn to live a less chaotic lifestyle.
[Father] will allow announced and unannounced home visits to his home.
13
 As to parenting classes, the plan provided:
[Father] will actively participate in and complete parenting classes. [Father]
will participate in a class that teaches him parenting skills which are
appropriate for the ages of children. [Father] will be responsible for
attending two one-day classes if he does not take a ten week class. [Father]
will exhibit proper parenting skills in all of his interactions with his children.
[Father] will be responsible for any payments regarding his classes.

The plan then provided the name, address, and phone number of three local

organizations where parenting classes are offered.

As to individual counseling, the plan provided:
[Father] will attend individual counseling with [a] therapist to address the
issues related to his drug abuse, separation from his children, his criminal
history and pending criminal charges, issues related to the removal of the
children, and any addition[al] issues that arise during the sessions. [Father]
will attend at least six (6) bi-weekly sessions of counseling or until released
by the therapist. [Father] will follow any and all recommendations made by
the therapist.

The plan then provided the name, address, and phone number of the counseling service.

As to completion of BIPP, the plan provided:
[Father] will participate in and complete the Battering Intervention and
Prevention Program (BIPP). [Father] will attend BIPP classes weekly until
completing the program. He will provide a certificate to this worker no later
than 10 days after the completion of classes. [Father] will demonstrate an
understanding of the material presented and be able to apply it to his
everyday interactions. [Father] will follow through with any and all
recommendations made by the class instructor.

The plan then stated the name, address, and phone number of the BIPP provider.

As to the substance abuse assessment, the plan provided, “[Father] will participate

in and complete a substance abuse assessment with OSAR. Father will follow through

with any and all recommendations from OSAR.” The plan then provided the name and

address where OSAR would be administered.

14
 Father does not assert that the order was vague or that he did not know where to

go or who to call to schedule classes or individual counseling. In fact, the evidence

indicates otherwise, as Father completed several services under the plan. While Father

indicated to the caseworker that, for services in general, he needed to maintain his job

rather than complete services, Father did not request an accommodation for his work

schedule. If he had done so, the Department has “multiple” therapists that it can utilize,

and some therapists are available as late as 8:00 p.m. to 9:00 p.m. The caseworker also

testified that Father had a work truck available for transportation. Moreover, Father

attended an OSAR assessment, but failed to return with information needed to complete

the assessment. This evidence suggests that the family service plan was sufficiently

specific to put Father on notice as to what tasks he was required to complete.

We conclude the trial court was presented with clear and convincing evidence

sufficient to support a finding that Father failed to comply with specific, itemized tasks,

which were contained within a court order, required to obtain the return of his children.

See In re N.G., 577 S.W.3d at 238. As such, Father’s second issue is overruled.6

Best Interest of the Children

In his third issue, Father challenges the legal and factual sufficiency of the

evidence supporting the best interest finding made under section 161.001(b)(2). A

determination of best interest necessitates a focus on the child, not the parent. See In re

B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts

6 Father did not expressly raise an issue under section 161.001(d), which provides exceptions to

termination of parental rights under section 161.001(b)(1)(O). See § 161.001(d). As such, we do not
address section 161.001(d) in our analysis of this issue.

15
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 at 250. There is a strong presumption that it is in the child’s best

interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex.

2006).

In assessing whether termination is in a child’s best interest, the courts are guided

by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.

1976). These factors include: (1) the desires of the child, (2) the emotional and physical

needs of the child now and in the future, (3) the emotional and physical danger to the

child now and in the future, (4) the parental abilities of the individuals seeking custody,

(5) the programs available to assist these individuals to promote the best interest of the

child, (6) the plans for the child by these individuals or by the agency seeking custody, (7)

the stability of the home or proposed placement, (8) the acts or omissions of the parent

that may indicate that the existing parent-child relationship is not proper, and (9) any

excuse for the acts or omissions of the parent. Id. “[T]he State need not prove all of the

factors as a condition precedent to parental termination, ‘particularly if the evidence were

undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,

95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re

C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory

grounds for termination may also constitute evidence illustrating that termination is in the

child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis

may consider circumstantial evidence, subjective factors, and the totality of the evidence

as well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,

no pet.). We must also bear in mind that a child’s need for permanence through the

establishment of a stable, permanent home has been recognized as the paramount
16
consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.

App.—Dallas 2007, no pet.).

The desires of the children

At the time of trial, M.G. was eleven years old and M.G. III was nine years old. The

caseworker testified that Father loved the children and that there is a bond between the

children and Father. There was also testimony that the children assisted the Department

in choosing an adoptive family and that the children are happy with the prospective

adoptive family. This factor weighs neither for nor against termination.

The emotional and physical needs of and danger to the children

The next two factors are the child’s emotional and physical needs now and in the

future, and the emotional and physical danger to the child now and in the future. The

need for permanence is a paramount consideration for a child’s present and future

physical and emotional needs. Edwards v. Tex. Dep’t of Protective & Regulatory Servs.,

946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ). A parent’s inability or

unwillingness to provide adequate care for his children, lack of parenting skills, and poor

judgment may be considered when looking at the children’s best interest. In re C.A.J.,

122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.). A parent’s ongoing drug

use is conduct that subjects children to a life of uncertainty and instability, which

endangers the physical and emotional well-being of the children. In re J.O.A., 283 S.W.3d

336, 346 (Tex. 2009).

Father dismissed concerns expressed by the Department caseworker about the

cleanliness of the home, and the physical condition of the home changed very little during

17
the Department’s involvement. Moreover, Father did not complete his plan of service and

his continued use of marijuana and methamphetamine pose a risk to M.G. and M.G. III’s

safety and stability. Less than three months before trial, the caseworker testified that

there was a substance she identified as methamphetamine on Father’s kitchen counter.

Father’s unwillingness or inability to maintain a drug-free home suggests that similar

conduct will occur in the future, thereby constituting evidence of emotional and physical

danger to the children now and in the future. In re D.L.N., 958 S.W.2d 934, 941 (Tex.

App.—Waco 1997, pet. denied). The trial court could have concluded that Father is

unable to meet the physical or emotional needs of M.G. and M.G. III and is unable to

protect the children from physical or emotional danger. These two factors weigh heavily

in favor of the trial court’s best interest determination.

Parenting ability and programs available to assist party seeking custody

The fourth and fifth factors will be discussed together. In reviewing the parenting

ability of the parent, a factfinder can consider the parent’s past neglect or past inability to

meet the physical and emotional needs of the child. In re G.N., 510 S.W.3d 134, 139

(Tex. App.—El Paso 2016, no pet.). “A parent’s drug use, inability to provide a stable

home, and failure to comply with his family service plan support a finding that termination

is in the best interest of a child.” In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort

Worth 2006, no pet.). The factfinder can infer from a parent’s failure to take the initiative

to avail himself of the programs offered to him by the Department that the parent “did not

have the ability to motivate [him]self to seek out available resources needed now or in the

future.” In re J.M., No. 01-14-00826-CV, 2015 Tex. App. LEXIS 2130, at *21 (Tex. App.—

18
Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem. op.) (citing In re W.E.C., 110 S.W.3d

231, 245 (Tex. App.—Fort Worth 2003, no pet.)).

Father did not testify at trial regarding his parenting abilities. However, the

Department introduced evidence concerning Father’s 2012 indictment for injury to a child.

The indictment alleged that Father struck M.G.’s face with a remote control and he

pleaded guilty and received deferred adjudication community supervision. While Father

completed some of his court-ordered services, he failed to complete a substance abuse

assessment, failed to abstain from the use of illegal drugs, and continued to live in an

unsafe home environment despite the Department’s intervention. Father’s failure to

complete these necessary services could have led the trial court to infer that Father did

not have the ability to motivate himself to seek out available resources now or in the

future. See id. at *21-22. The trial court was entitled to find that this evidence weighed

in favor of the best interest finding.

Plans for the children and stability of the home or placement

We will consider the sixth and seventh factors together. The sixth factor examines

the plans for the children by those individuals or the agency seeking custody. The

seventh factor is the stability of the home or proposed placement. Stability and

permanence are paramount in the upbringing of children. In re J.D., 436 S.W.3d 105,

120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may compare the

parent’s and the Department’s plans for the children and determine whether the plans

and expectations of each party are realistic or weak and ill-defined. Id. at 119-20.

Since Father did not appear at the final hearing, there is no evidence of his plans

for the children should the children be returned to his care. There is evidence that Father
19
is unable or unwilling to provide a safe, stable, and drug-free home environment suitable

for M.G. and M.G. III. Conduct that subjects children to a life of uncertainty and instability

also endangers the children’s physical and emotional well-being. In re M.R.J.M., 280

S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.).

The Department’s plan for the children was termination of parental rights and

adoption. The maternal grandmother testified that the children need “some normal,” and

it is in the best interest of the children for the Department to find an adoptive home for

both children together. The children assisted the Department in choosing an adoptive

family and the children have met the family. “[T]he children are very happy,” and the

prospective adoptive family is “very happy as well.”

The Department’s plan for the children would provide permanence and stability for

M.G. and M.G. III. This evidence supports the trial court finding that termination was in

the best interest of the children.

Acts and omissions of the parent

The eighth factor is the parent’s acts or omissions that may indicate that the

existing parent-child relationship is not a proper one. The record indicates Father pleaded

guilty to injury to a child in 2012 and that M.G. was the victim. Father admitted to using

methamphetamine and marijuana prior to the children’s removal and during the pendency

of this case. Father’s drug use was of such a magnitude that the judge discontinued his

visitation with the children two months before trial. Moreover, Father did not attend the

final hearing. The absence of a parent at the trial to terminate his parental rights is

prejudicial to the parent. In re J.D.S., 111 S.W.3d 324, 327 (Tex. App.—Texarkana 2003,

no pet.). Father was aware from the time that M.G. and M.G. III were taken into care by
20
the Department that his parental rights were in jeopardy and that he was required to

complete services offered by the Department in order to be reunited with the children.

Although the evidence showed that Father completed some of the service plan’s

requirements, the evidence showed that Father did not comply with the portion of his plan

designed to address the reasons the children were taken into care, including: Father’s

failure to maintain stable housing that is free from drugs, maintain a drug-free lifestyle

and submit to random drug screens, and participate in and complete a substance abuse

assessment.

In considering this evidence, the trial court could have found that the existing

parent-child relationship is not a proper one.

We conclude that the evidence is both legally and factually sufficient to establish

a firm conviction in the mind of the trial court that termination of Father’s parental rights

is in the best interest of M.G. and M.G. III. Issue three is overruled.

Conclusion

The judgment of the trial court terminating Father’s parental rights is affirmed.

Judy C. Parker
Justice

Quinn, C.J., concurs in the result.

21