in the Interest of S.P. and J.P. ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00296-CV
__________________
IN THE INTEREST OF S.P. AND J.P.
__________________________________________________________________
On Appeal from the 411th District Court
San Jacinto County, Texas
Trial Cause No. CV15,047A
__________________________________________________________________
MEMORANDUM OPINION
After a bench trial, Appellant D.P. 1 (“Daniel”) filed an appeal of the trial
court’s order terminating his parental rights to his minor children S.P. (“Sandra”)
and J.P. (“Jared”). We affirm.
Background
On August 4, 2017, the Department of Family and Protective Services (“the
Department”) filed an Original Petition for Protection of a Child, for
Conservatorship, and for Termination in Suit Affecting the Parent-Child
1
To protect the identity of the minor children, we use pseudonyms to refer to
the children, their parents, and other family members. See Tex. R. App. P. 9.8(b)(2).
1
Relationship (“the Petition”). The Petition named Mindy, Sandra, and Jared as the
subjects of the suit; Carrie as the mother of all three children; Daniel as Sandra’s and
Jared’s father; and Jack as Mindy’s father. At the time the Petition was filed, Mindy
was 6 years old, Sandra was 2, and Jared was 1.
The Petition was supported by an affidavit by a Child Protective Service
(“CPS”) worker and representative of the Department, and the affidavit stated that,
on August 2, 2017, the Department received a report from the sheriff’s office
concerning an outcry of sexual abuse by Mindy. During a forensic interview, Mindy
stated that her stepfather Daniel had used his hand to touch her “private part” more
than ten times, that it felt like he was “pushing a nail” into her “private spot[,]” that
he asked her to rub his “part[,]” that when she rubs him, something that looked like
milk would come out, and that he rubs her behind with his “part[.]” She also stated
that Daniel took pictures of her with her clothes off. Mindy stated that she told her
mother, but her mother did not listen and did not understand what she was talking
about. During a Sexual Assault Nurse Examiner (“SANE”) examination two days
later, Mindy told the examiner that Daniel had touched her private parts between 25
and 60 times. The SANE exam also revealed that Mindy showed signs of herpes.
Carrie told an investigator that there were allegations that Daniel molested Mindy
three or four years earlier, that Carrie’s mother made the report because she did not
2
like Daniel, but the case was ruled out. Carrie also told CPS that Daniel is never
home alone with the children because “he wants to avoid going through this.”
A detective at the scene told CPS he did not believe the children should be left
with the mother, Carrie would not allow the children to go to her mother’s home,
and CPS initiated a Parental Child Safety Placement until further investigation could
be completed. On August 4, 2017, the trial court found that there was an immediate
danger to the physical health or safety of the children or that the children have been
the victims of neglect or sexual abuse or trafficking. The Department was named
temporary sole managing conservator of all three children.
In the Temporary Order Following Adversary Hearing filed on August 21,
2017, Daniel, Carrie, and Jack were ordered to comply with the requirements of a
service plan created by the Department during the pendency of the suit. The order
also provided for a Temporary Visitation Schedule for Daniel to have possession of
and access to the children.
In a Status Hearing Order filed October 4, 2017, the trial court found that
Daniel had not reviewed or signed his service plan. The court also required that
visitation between Daniel and Sandra and Jared be supervised. In the Initial
Permanency Hearing Order Before Final Order filed on January 10, 2018, the trial
court found that Daniel had demonstrated compliance with his service plan. The
court also found that visitation between Daniel and Sandra and Jared must continue
3
to be supervised. On May 9, 2018, Carrie filed a motion to sever Sandra and Jared
from the lawsuit because there was a pending divorce action between Carrie and
Daniel. On June 6, 2018, the trial court granted Carrie’s motion to sever. In a
Permanency Hearing Order Before Final Order filed on July 20, 2018, the trial court
ordered that visitation between Daniel and Sandra and Jared must continue to be
supervised.
In a pretrial hearing on October 18, 2018, Daniel’s attorney told the court that
in light of criminal charges against Daniel,
Having him going to parenting classes and things of that nature is a
waste of everybody’s time. Even if he’s the best parent in the parenting
class, that’s not going to change…the Department’s position. We
would just ask that those portions of the service plan…be abated at this
point until further orders of the Court.
...
I’ll get a list, but basically, those -- all of the services that would involve
him going to third parties, to classes and things of that nature -- for
instance, a psychological -- I don’t think I would agree to that as his
criminal lawyer because of where that could go. We would ask that
those be abated because they’re not going to get us anywhere further
before the resolution of this plan but also don’t want him to be penalized
should we have a final hearing and that’s the basis for him not -- for
being incriminated, is he didn’t complete those portions of the service
plan.…
The court granted the abatement until the outcome of the criminal case or until
Daniel asked for it to be unabated. In Permanency Hearing Orders Before Final
Order filed on November 14, 2018 and on January 24, 2019, the trial court noted
4
that Daniel’s service plan had been abated and that supervision between Daniel and
Sandra and Jared must be supervised.
The trial court entered a Final Order in Suit Affecting the Parent-Child
Relationship on June 13, 2019. Therein, the court appointed Carrie, Daniel, and an
intervenor (the children’s maternal grandmother) as possessory conservators of
Sandra and Jared, and the order provided for “no possession and access” by Daniel
of the children.
In a November 14, 2019 hearing on placement of the children, Appellant was
not present, and the court stated
[Daniel] doesn’t want to be involved in this portion of the case.
....
All of the criminal charges are still pending against [Daniel] concerning
the children. [Daniel’s attorney] thought, on behalf of his client, it best
if they do not participate in this portion of the case.
....
[T]here’s bond conditions that [Daniel] is subject to also.
The Department requested the court order that Daniel have no contact with the
children. In a January 9, 2020 hearing, Carrie testified that she had not let Daniel
have any contact with the children.
In a November 5, 2020 hearing, the trial court again stated that Daniel and his
attorney had given “permission to proceed without him[]” and that Daniel and his
attorney were not participating in the CPS case based on the criminal charges Daniel
was facing. Counsel for the Department also told the court that Daniel was in the
5
Montgomery County jail. A CPS caseworker also testified that she had not visited
with Daniel, but the caseworker had “monitored him through VINELink” to ensure
that he had not been released from jail and to know how to contact him. On June 7,
2021, the Department filed an Amended Petition seeking termination of Daniel’s
parental rights as to Sandra and Jared and the appointment of Carrie as Sandra and
Jared’s managing possessory conservator.
Testimony at Trial
In August 2021, the case was tried to the bench. The Department sought
appointment of Carrie as sole managing conservator of the children and termination
of Daniel’s parental rights pursuant to the Amended Petition. The trial court took
judicial notice of the court’s file in this case, CPS status reports filed with the court,
and service plans for Daniel that were made orders of the court in September and
November 2017.
Testimony of Keflyn Wilridge
Keflyn Wilridge, a CPS caseworker, testified that he was the caseworker
assigned to this case for “several months.” Wilridge agreed that a family service plan
for Daniel had been court-ordered, he had contact with Daniel about the service plan,
but he had not observed any contact between Daniel and Sandra and Jared. Wilridge
did not know whether Daniel had signed the family service plan. According to
Wilridge, while he was assigned to the case, Daniel would have had the ability to
6
work on his service plan. Wilridge testified that when he approached Daniel about
the service plan, Daniel stated that he was not going to comply, and “he stated that
he had a felony and he wasn’t going to get his kids back and he wasn’t going to work
the service plan.” Wilridge agreed that he explained to Daniel that the service plan
was “something that the court had ordered” and he believed that Daniel understood
it was court-ordered.
Testimony of Anita Sykes
Anita Sykes testified that she was currently a supervisor with the Department,
she was a caseworker when she was assigned to this case, and she had direct
supervision of this case from November 2019 to April 2021. Sykes testified that she
was aware of the service plan for Daniel, but she had not created it. Sykes understood
that Daniel had been arrested in Montgomery County for sexual assault of a child,
he fled to another state, he later was placed back in jail in Montgomery County, and
at the time of trial, he was facing charges in two counties for the same conduct
against two victims. According to Sykes, Daniel was out on bond when she was
assigned to the case in November 2019. Sykes was not aware of a second service
plan for Daniel that was developed in November 2017. She had not observed any
contact between Daniel and Sandra or Jared. Sykes agreed that the Department had
deemed Daniel to have constructively abandoned Sandra and Jared. Sykes was not
aware that Daniel had completed any of the items on his service plan as of April 21,
7
2021. According to Sykes, Daniel had not had any contact with the children—
whether in person, by phone, or in writing—between November 2019 and the time
of trial, and he had not contacted the Department to ask for a status update,
information about the children, or photos. Sykes testified that for about six or seven
months during the case, Daniel was not incarcerated, but he did not contact her to
work on his service plan, to ask about the children, or to acknowledge the case, and
he had not attempted to work the service plan. Sykes also testified that Daniel knew
that he needed to work his service plan and that some services are available in some
jails. Sykes agreed that it was in the best interest to terminate Daniel’s parental rights
based on abandonment, failure to comply with the service plan, and the children’s
best interest, even if he were to be found not guilty on both criminal cases, and that
if Daniel’s parental rights were not terminated, there is a potential for continuing
danger to the children.
On cross-examination, when asked whether she knew that one of the
conditions of Daniel’s bond required him not to have contact with the children,
Sykes replied that she did not know the conditions of his bond and that
[h]e could have called me to see how they were doing. He could have
called the Department to see how they were doing. He could have
[written] letters. There [were] ways to communicate with the
children.…
....
[H]e could have contacted me to see how they were doing, make sure
they were okay, even just to get pictures of them.
....
8
…I’m the Department. I’m not the children nor the family. I could have
given him updates on the children, how they’re doing in school,
whether they’ve been sick, whether they’re healthy, whether they’re
happy, whether they’ve asked about him.
According to Sykes, Daniel had been under investigation for the whole time of the
case, but he had not been in jail the entire time. Sykes did not know whether Daniel
had had the opportunity to have access to his children during the pendency of the
case, given the allegations against him. Sykes testified that she had previous cases
involving bond conditions of a respondent with a criminal case, and that the
respondent or his attorney can request further visitation and a subsequent court order
would “line up with a bond condition[.]” But Sykes was not aware of any request in
this case by Daniel or his attorney to step up visitation. Sykes agreed that not
requesting photos, status updates, or contact with the children was consistent with
constructive abandonment.
Testimony of Tiffany Pecero
Tiffany Pecero, a caseworker for the Department, testified that she was
assigned to the case early in 2021 when Sykes was promoted to supervisor.
According to Pecero, she went to see him in June and was not able to contact him.
Pecero also testified that, since she had been assigned to the case, Daniel had not
contacted her regarding his service plan, contacting the children, or status updates
on the children. Pecero agreed that upon request, the Department would attempt to
provide status updates on the children.
9
Testimony of the Court-Appointed Special Advocate
The Court-Appointed Special Advocate (“CASA”) in this case testified that
she had been on this case since September 2017, she had had no contact with Daniel,
and he had not had any interaction with the children. The CASA testified that Daniel
had not requested additional visitation with or access to the children nor had she
received assistance from his attorney in setting up visitation. The CASA was also
not aware that Daniel had done any work towards his service plan. The CASA
testified that she believed that termination of Daniel’s parental rights was in the best
interest of the children because
…he’s not asked for any kind of contact with the children whatsoever.
In fact, he’s said he didn’t want to have contact with the children.…
....
He’s made no effort.…
....
I just don’t think he needs to be in contact with these children because
they haven’t seen him in four years, over four years. They don’t know
who he is.
The CASA testified that, to her knowledge, the children had never asked about their
father. The CASA agreed that at one point during the case, the Department agreed
to give the parents additional time to work their service plans. The CASA did not
know what Daniel did or did not do on his service plan and she did not know what
the conditions of his bond were. The CASA agreed that in an agreement among the
parties in 2019, Daniel agreed to have no possession of the children, that agreement
10
was not an adjudication of the court, and that in the trial, the Department was “asking
to change no possession to termination of parental rights[.]”
Testimony of Carrie
Carrie testified that she was still married to Daniel at the time of trial, that
Daniel had “refused to sign[,]” and she could not complete the divorce until the
children were situated. Carrie also testified that, shortly after this case began in 2017,
she was criminally charged for helping to hide Daniel when there was a warrant for
his arrest. She also agreed that she was familiar with the family service plan for
Daniel. According to Carrie, Daniel had not made a request to see the children nor
asked for increased visitation, but he had tried to see the children by “[s]neaking
around [her] house[,]” and she had to install cameras at her house “because he was
trying to stalk [her] and have people come follow [her.]” Carrie testified that she had
completed her service plan even though there was a criminal charge against her and
she was on community supervision, but she was not aware of whether Daniel had
participated in his service plan. She also testified that Daniel had not provided for
the children’s welfare during the case. Carrie testified that since the children had
been placed with her, she had not received phone calls, letters, or child support from
Daniel, and the children have not asked to see him.
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Daniel’s attorney told the court that although he was “quite eager to testify,”
that she advised him to assert his Fifth Amendment right against self-incrimination
in light of the two pending cases for sexual assault of a child.2
After the bench trial, the trial court entered a Final Order in Suit Affecting the
Parent-Child Relationship on September 9, 2021. Therein, the trial court terminated
Daniel’s parental rights to Sandra and Jared, having found that termination was in
the children’s best interest and that Daniel had constructively abandoned the children
pursuant to section 161.001(b)(1)(N) of the Family Code and had failed to comply
with the court-ordered service plan pursuant to section 161.001(b)(1)(O) of the
Family Code.3 Daniel timely filed a notice of appeal.
Issues
Appellant raises three issues on appeal. Appellant’s first issue argues that the
trial court erred in terminating his parental rights under subsection N because there
was a court order that Appellant have no access to or communication with the
children, and the order was never lifted prior to the final hearing. Appellant’s second
issue argues that the trial court erred in terminating his parental rights under
subsection O because Appellant’s participation in the family service plan was abated
2
Attorneys for Carrie and for the intervenor grandmother told the court that
Daniel had been arrested on a second sexual assault of an unrelated child after this
case began.
3
The trial court also appointed Carrie permanent managing conservator of
Sandra and Jared and the maternal grandmother as possessory conservator.
12
by the trial court due to Appellant’s pending criminal charges and never reinstated
prior to the final hearing. Appellant’s third issue argues that the trial court erred in
terminating his rights under subsection O because no family service plan was ever
filed with the court or entered into evidence.
An appellate brief must include “a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.” Tex.
R. App. P. 38.1(i). In this case, Appellant’s brief identifies three alleged issues, but
the brief fails to identify the applicable law or legal standard for each issue and also
fails to explain how the trial court erred with reference to the record or applicable
law. An appellate brief must explain how the law in the cited authorities applies to
the material facts in the record and supports the appellant’s arguments on appeal.
See Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 363 (Tex. App.—Fort
Worth 2018, pet. denied). “An appellate court has no duty to perform an independent
review of the record and applicable law to determine whether the error complained
of occurred.” Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas
2004, pet. denied). By providing only bare assertions of error or allegations, we
conclude Appellant’s brief fails to satisfy Rule 38.1, the brief presents nothing for
our review on appeal, and Appellant waived our review of those complaints. See In
re J.W., No. 09-20-00204-CV, 2021 Tex. App. LEXIS 3040, at **6-7 (Tex. App.—
Beaumont Apr. 22, 2021, no pet.) (mem. op.); see also Fredonia State Bank v. Gen.
13
Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (“a point may be waived due to
inadequate briefing[]”); Washington v. Bank of N.Y., 362 S.W.3d 853, 854 (Tex.
App.—Dallas 2012, no pet.) (bare assertions of error, without argument or authority,
present nothing for review on appeal); Tesoro Petroleum Corp. v. Nabors Drilling
USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)
(concluding that appellant waived its complaints by failure to brief and “merely
uttering brief conclusory statements, unsupported by legal citations[]”).
Nevertheless, in the interest of justice, we may construe Appellant’s issues to
challenge the sufficiency of the evidence to support the trial court’s final order as to
the predicate grounds for termination, and we address the sufficiency of the evidence
to support the trial court’s findings under subsection N. See Perry v. Cohen, 272
S.W.3d 585, 587 (Tex. 2008) (“[A]ppellate courts should reach the merits of an
appeal whenever reasonably possible.”) (citing Verburgt v. Dorner, 959 S.W.2d 615,
616 (Tex. 1997)); see also Tex. R. App. P. 33.1(d) (in a civil case tried to the bench,
a complaint about the sufficiency of the evidence may be made for the first time on
appeal); In re H.D.M., No. 09-18-00050-CV, 2018 Tex. App. LEXIS 4339, at *16
(Tex. App.—Beaumont June 14, 2018, pet. denied) (mem. op.) (same).
Standard of Review
The decision to terminate parental rights must be supported by clear and
convincing evidence. Tex. Fam. Code Ann. § 161.001(b). Under the Family Code,
14
“‘[c]lear 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.” Id. § 101.007; In re J.L., 163 S.W.3d 79,
84 (Tex. 2005). The movant must show that the 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(b); In re J.L., 163 S.W.3d at 84.
In reviewing the legal sufficiency of the evidence in a parental rights
termination case, we must consider all the evidence in the light most favorable to the
finding to determine whether a reasonable factfinder could have formed a firm belief
or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344-45 (Tex.
2009) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). 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. In a factual sufficiency review, 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
15
factfinder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” Id. In cases tried to the bench, the trial court in its
role as factfinder determines the credibility and weight of the witnesses’ testimony
and resolves any inconsistencies or conflicts in the evidence. See Webb v. Crawley,
590 S.W.3d 570, 578 (Tex. App.—Beaumont 2019, no pet.); In re R.J., 568 S.W.3d
734, 754 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). Only one statutory
ground under section 161.001(b) is required to terminate parental rights. See In re
Z.M.M., 577 S.W.3d 541, 542 (Tex. 2019).
Subsection N: Constructive Abandonment
As previously noted, the trial court found that two statutory grounds for
termination were established by clear and convincing evidence. First, it found that
Daniel constructively abandoned Sandra and Jared under section 161.001(b)(1)(N).
Second, the court found that Daniel had failed to comply with the provisions of his
court-ordered service plan under section 161.001(b)(1)(O). When termination is
based on multiple grounds under section 161.001(b)(1), as it was here, we must
affirm the termination order if the evidence is sufficient to support any one of the
grounds found by the district court. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003);
see also In re Z.M.M., 577 S.W.3d at 542 (explaining that only one statutory ground
is required to terminate parental rights). Because a finding regarding constructive
16
abandonment is dispositive, we confine our analysis to the evidence material to that
statutory ground. See Tex. R. App. P. 47.1.
Subsection N provides that the trial court may order termination of the parent-
child relationship if it finds by clear and convincing evidence that the parent has
constructively abandoned (1) a child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective Services for
not less than six months; (2) the Department has made reasonable efforts to return
the child to the parent; (3) the parent has not regularly visited or maintained contact
with the child; and (4) the parent has demonstrated an inability to provide the child
with a safe environment. See Tex. Fam. Code Ann. § 161.001(b)(1)(N). “If there is
no evidence of one or more of these elements, then the finding of constructive
abandonment fails.” In re D.T., 34 S.W.3d 625, 633 (Tex. App.—Fort Worth 2000,
pet. denied); see also Tex. Fam. Code Ann. § 161.001(b)(1)(N); In re M.R.J.M., 280
S.W.3d 494, 505 (Tex. App.—Fort Worth 2009, no pet.).
Appellant does not argue that there was evidence that he visited or contacted
the children. Rather, he argues that he was ready and able to visit his children, but
his counsel argued that doing so could jeopardize his criminal case, and he did not
have an opportunity to contact the children during the pendency of the case.
According to Appellant, the Department did not make reasonable efforts to return
the children to him and by agreement of all parties, he was under no duty to visit,
17
maintain contact with, or to provide a safe living environment for the children until
the criminal case against him was resolved. Appellant further argues that “[t]he
parties in the case seemed to agree that Appellant’s participation in the case was not
recommended while his criminal case was pending.” In addition, Appellant argues
that the Final Order in Suit Affecting the Parent-Child Relationship entered on June
13, 2019 “specifically precluded Appellant from possession of or access to the
children[,]” which Appellant states was “due to the pending criminal case and bond
conditions.” Appellant’s conditions of bond are not in our appellate record, nor does
Appellant’s brief provide any citations to the record for this assertion. See Tex. R.
App. P. 38.1(i). And the record reflects that the parties agreed to entry of an order
that “the children at no time are introduced into contact with [Daniel.]”
The first two elements in proving constructive abandonment focus on the
Department’s conduct; the remaining elements focus on the parent’s conduct. In re
X.A.S., No. 05-19-01082-CV, 2020 Tex. App. LEXIS 1825, at *7 (Tex. App.—
Dallas Mar. 3, 2020, no pet.) (mem. op.). When reviewing whether sufficient
evidence supports termination under subsection N, as to the efforts of the
Department, the issue is whether the Department made reasonable efforts, not ideal
efforts. Id. (quoting In re F.E.N., 542 S.W.3d 752, 766-67 (Tex. App.—Houston
[14th Dist.] 2018, pet. denied)); In re G.K.G.A., No. 01-16-00996-CV, 2017 Tex.
App. LEXIS 5071, at *14 (Tex. App.—Houston [1st Dist.] June 1, 2017, pet. denied)
18
(mem. op.). When the Department removes a child, it designs a family service plan
to reunify the parent with the child. Liu v. Dep’t of Family & Protective Servs., 273
S.W.3d 785, 795 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Preparing and
administering a service plan for the parent constitutes evidence that the Department
made reasonable efforts to return the child to the parent. See In re A.M.E., No. 01-
21-00214-CV, 2021 Tex. App. LEXIS 8094, at *14 (Tex. App.—Houston [1st Dist.]
Oct. 5, 2021, no pet.) (mem. op.) (citing Liu, 273 S.W.3d at 795; In re K.M.B., 91
S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.)); In re I.M., No. 01-21-00123-
CV, 2021 Tex. App. LEXIS 7246, at **11-12 (Tex. App.—Houston [1st Dist.] Aug.
31, 2021, no pet.) (mem. op.); C.G. v. Tex. Dep’t of Family & Protective Servs., No.
03-18-00852-CV, 2019 Tex. App. LEXIS 6435, at **21-22 (Tex. App.—Austin July
26, 2019, no pet.) (mem. op.).
The Department established that Sandra and Jared came into its care and that
it was named the children’s sole managing conservator on August 4, 2017. The
children continued in the Department’s custody until the final modification hearing
in April 2021. Therefore, Sandra and Jared had been in the Department’s
conservatorship for at least six months. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(N).
CPS caseworkers Wilridge, Sykes, and Pecero testified that the Department
had developed a service plan for Daniel. Daniel’s attorney asked the court to abate
19
portions of his service plan that involved Daniel going to classes or otherwise going
to third parties in light of the unresolved criminal charges against him. A temporary
order filed August 21, 2017, ordered Daniel to comply with the Department’s service
plan. A Status Hearing Order filed October 4, 2017, noted that Daniel had not
reviewed or signed his service plan and also stated that the court had reviewed the
service plans for Carrie and Daniel and found them reasonable and accurate. In
another order filed on January 10, 2018, the trial court found that Daniel had
demonstrated compliance with his service plan. Therefore, the record provides clear
and convincing evidence that the Department had prepared a service plan for Daniel,
and the Department’s implementation of a service plan is considered a reasonable
effort to return the children to the parent under subsection N. See In re I.M., 2021
Tex. App. LEXIS 7246, at **11-13.
The third element requires proof that the parent failed to regularly visit or
maintain significant contact with the child. In this case, there was no evidence that
Daniel had any contact with Sandra and Jared except for Carrie’s testimony that
Daniel had tried to see the children by “[s]neaking around [her] house.” Daniel’s
brief does not argue that he tried to have contact with Sandra and Jared but that the
lack of contact was excused because his service plan was abated on the advice of
counsel due to pending criminal charges.
20
Subsection N is silent about the voluntariness of a parent’s failure to regularly
visit or maintain significant contact with his children. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(N)(ii); In re I.D., No. 05-21-00244-CV, 2021 Tex. App. LEXIS
7695, at **11-12 (Tex. App.—Dallas Sep. 17, 2021, pet. denied) (mem. op.). Other
courts have determined that a trial court may conclude that a parent has failed to
regularly visit or maintain significant contact with the children under subsection N
even though the parent’s visitation rights were abated by the court or there was a
court order requiring a parent not have contact with the children. See Nuyen v. Tex.
Dep’t of Family & Protective Servs., No. 03-12-00147-CV, 2012 Tex. App. LEXIS
7180, at **14-17 (Tex. App.—Austin Aug. 23, 2012, no pet.) (mem. op.); Quiroz v.
Dep’t of Family & Protective Servs., No. 01-08-00548-CV, 2009 Tex. App. LEXIS
2405, at **17-18 (Tex. App.—Houston [1st Dist.] Apr. 9, 2009, no pet.) (mem. op.).
The Houston First Court of Appeals explained that a district court’s order requiring
no contact between the parent and child until the parent’s other children were
brought into the Department custody did not mean the parent could not see her child
“based on factors beyond her control,” and “by the very nature of the order, [the
parent] only had to come to court in order to have the order lifted.” Quiroz, 2009
Tex. App. LEXIS 2405, at **17-20.
Where a parent’s own actions caused the inability to visit his or her children,
a trial court may conclude there is clear and convincing evidence that the parent
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failed to regularly visit or maintain significant contact with the children under
subsection N. See In re K.P., No. 11-20-00001-CV, 2020 Tex. App. LEXIS 5325, at
**6-8 (Tex. App.—Eastland July 15, 2020, no pet.) (mem. op.) (concluding the
evidence of abandonment was clear and convincing evidence even though mother
argued she failed to regularly visit or maintain significant contact with the children
after removal because the trial court had prohibited her from visiting the children
due to a positive drug test result, which was a matter within mother’s control).
Evidence in the record indicated that Daniel made no effort to contact the
Department and to seek updates or information about the children, even if his
criminal court bond conditions may have required that he have no personal contact
with the children. On this record, the trial court could have found that, as a result of
his own actions and indifference, Daniel failed to regularly visit or maintain
significant contact with Sandra and Jared. See id.; In re G.K.G.A., 2017 Tex. App.
LEXIS 5071, at *16.
The final element requires evidence that Daniel demonstrated an inability to
provide the children with a safe environment. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(N)(iii). The Department bears the burden to prove the parent is
unable to provide a safe environment for the children. See In re A.S., 261 S.W.3d 76,
90 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); In re D.T., 34 S.W.3d at
641. Daniel does not challenge this element on appeal, and the appellate record
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includes no evidence that Daniel attempted to demonstrate his ability to provide a
safe environment for the children.
Incarceration alone does not prevent a parent from providing a child a safe
environment. See In re D.S.A., 113 S.W.3d 567, 573 (Tex. App.—Amarillo 2003,
no pet.). An incarcerated parent may be able to work through spouses, relatives, or
friends to fulfill the obligation to provide a safe environment. See id. However, in
this case, there is no evidence that Daniel made any efforts to ensure or provide a
safe environment for Sandra and Jared by his own efforts or through the use of
others. Sykes testified that Daniel had not contacted the Department to inquire about
the children, had not acknowledged the case, and had made no attempt to work his
service plan. Pecero testified that the Department would attempt to provide status
updates on the children, but that Daniel had not contacted her regarding the children
or his service plan. Carrie testified that she was trying to divorce Daniel, and he had
not provided her with any support for the children’s welfare during the case.
According to Carrie, she had not received phone calls, letters, or child support from
Daniel during the pendency of the case. The trial court could have determined based
on the record that the Department met its burden to prove that Daniel had
demonstrated an inability to provide a safe environment for Sandra and Jared. See
Tex. Fam. Code Ann. § 161.001(b)(1)(N)(iii).
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We conclude that the evidence, viewed in the light most favorable to the trial
court’s finding under subsection N, is such that a reasonable factfinder could have
formed a firm belief or conviction that Daniel constructively abandoned the children.
Considering all of the evidence in the record, both supporting and contradicting the
constructive abandonment finding, the trial court could have formed a firm belief or
conviction that Daniel constructively abandoned Sandra and Jared. See In re J.O.A.,
283 S.W.3d at 344-45; In re J.F.C., 96 S.W.3d at 266; In re G.K.G.A., 2017 Tex.
App. LEXIS 5071, at *18.
Having concluded the evidence was sufficient to support termination under
subsection N, we need not address the sufficiency of the evidence under subsection
O. See Tex. R. App. P. 47.1; In re Z.M.M., 577 S.W.3d at 542; In re A.V., 113 S.W.3d
at 362. We overrule all of Appellant’s issues on appeal, and we affirm the judgment
of the trial court.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on January 11, 2022
Opinion Delivered February 3, 2022
Before Golemon, C.J., Kreger and Johnson, JJ.
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