in the Interest of J.B. A/K/A J.D., a Child ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00173-CV
___________________________
IN THE INTEREST OF J.B. A/K/A J.D.,
A CHILD
On Appeal from the 325th District Court
Tarrant County, Texas
Trial Court No. 325-385480-05
Before Pittman, Meier, and Gabriel, JJ.
Per Curiam
MEMORANDUM OPINION
After a bench trial, the trial court found that termination of the parent-child
relationship between S.D. (Mother) and her teenaged son J.B. was in J.B.’s best
interest and that Mother had:
6.2.1. knowingly placed or knowingly allowed [J.B.] to remain
in conditions or surroundings which endanger[ed his]
physical or emotional well-being . . . ;
6.2.2. engaged in conduct or knowingly placed [J.B.] with persons
who engaged in conduct which endanger[ed his] physical or
emotional well-being . . . ;
6.2.3. constructively abandoned [J.B.,] who ha[d] been in the
permanent or temporary managing conservatorship of the
[Texas] Department of Family and Protective Services
[(TDFPS)] for not less than six months[,] and: (1) [TDFPS]
ha[d] made reasonable efforts to return [him] to . . .
[M]other; (2) [she had] not regularly visited or maintained
significant contact with [J.B.]; and (3) [she had]
demonstrated an inability to provide [him] with a safe
environment . . . ; and
6.2.4. failed to comply with the provisions of a court order that
specifically established the actions necessary for [her] to
obtain [J.B.’s] return[, when he had] been in the permanent
or temporary managing conservatorship of [TDFPS] for
not less than nine months as a result of [his] removal from
[Mother] . . . for . . . abuse or neglect.
See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O), (2) (West Supp. 2017).
Mother timely appealed, and in four issues, she contends that the evidence is legally
and factually insufficient to support the judgment on the four grounds listed above.
She does not challenge the best-interest finding. For the reasons stated herein, we
hold that the evidence is legally and factually sufficient to support the trial court’s
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termination of Mother’s parental rights and affirm the trial court’s judgment.
I. BRIEF FACTS
In early December 2016, TDFPS received a referral for Mother’s abandonment
of J.B. and began an investigation. TDFPS Investigator Mary Houseman learned the
following information:
• After Mother’s probation was revoked and she was jailed in February
2016 for her failure to pay child support regarding another child, she
placed J.B. with his half-brother’s stepmother (Stepmother);
• Mother repeatedly told Stepmother that she would establish a home for
J.B. and herself and would return for him, but she did not return, leaving
J.B. with Stepmother about ten months;
• When Stepmother could no longer take care of J.B. alone, she reached
out to his paternal aunt (Aunt), a foster parent;
• J.B. was shuffled between the two homes until Stepmother moved in
with her parents; he then stayed with Aunt;
• Aunt and Stepmother both believed J.B. would benefit from services
TDFPS could provide him because he was behind in school, wet the bed
frequently, and needed to be tested for ADHD; and
• Aunt needed financial assistance to care for J.B.; Mother had provided
none to Stepmother or Aunt.
Mother refused to allow TDFPS Investigator Houseman to visit the motel
room she shared with the boyfriend she described as “domestically violent” but
admitted that it was not a good place for J.B. or her, Mother’s suggested fictive-kin
placement fell through, and Mother told Investigator Houseman that she would not
do anything TDFPS asked her to do. Based on Mother’s TDFPS history, unstable
housing, untreated mental health issues, drug history, and refusal to take a drug test or
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to otherwise cooperate with TDFPS, TDFPS removed JBS from Mother and officially
placed him with Aunt on December 12, 2016. The trial court ordered Mother to
comply with a service plan designed to address her drug history, her instability, and
her relationship with her boyfriend.
Mother waived service and did not personally appear at any hearings before the
first trial or the first trial itself, which resulted in the termination of her parental rights
to J.B. Through new appointed counsel, Mother alleged confusion about the trial
dates in her motion for new trial, and the trial court granted her a new trial. Mother
attended the hearing on her motion for new trial and the retrial and testified at both.
At the time of the December 2016 removal, J.B. could not remember the last
time he had seen Mother. She did not visit him at all between the removal and the
original trial held October 17, 2017, and she visited him only twice—February 14,
2018 and March 30, 2018—between the original trial and the April 9, 2018 retrial.
Other than those two visits, Mother did nothing required by her service plan.
II. DISCUSSION
A. The Evidence Sufficiently Supports the Termination of Mother’s
Parental Rights Based on Subsection (O) of the Texas Family Code.
1. TDFPS Must Prove Its Case by Clear and Convincing Evidence.
For a trial court to terminate a parent-child relationship, TDFPS must prove
two elements by clear and convincing evidence: (1) that the parent’s actions satisfy
one ground listed in Texas Family Code section 161.001(b)(1); and (2) that
termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re
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E.N.C., 384 S.W.3d 796, 802–03 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
Evidence is clear and convincing if it “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); E.N.C., 384 S.W.3d at 802.
2. We Determine Whether the Evidence Is Sufficient to Support
Termination Findings.
a. To Determine Legal Sufficiency, We Review All the
Evidence in the Light Most Favorable to the Finding.
To determine whether the evidence is legally sufficient in termination cases, we
look at all the evidence in the light most favorable to the challenged finding to
determine whether a reasonable factfinder could form a firm belief or conviction that
the finding is true. See Tex. Fam. Code Ann. § 161.001(b); In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005). We presume that the factfinder settled any conflicts in the
evidence in favor of its finding if a reasonable factfinder could have done so. J.P.B.,
180 S.W.3d at 573. We disregard all evidence that a reasonable factfinder could have
disbelieved, and we consider undisputed evidence even if it is contrary to the finding.
Id. That is, we consider evidence favorable to the finding if a reasonable factfinder
could, and we disregard contrary evidence unless a reasonable factfinder could not.
See id.
The factfinder is the sole judge of the witnesses’ credibility and demeanor. In re
J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
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b. To Determine Factual Sufficiency, We Carefully Review All
the Evidence, Giving Appropriate Deference to the
Factfinder.
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting termination. In re A.B., 437 S.W.3d 498,
500 (Tex. 2014). Nevertheless, we give due deference to the factfinder’s findings and
will not supplant them with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
We review the whole record to decide whether a factfinder could reasonably form a
firm conviction or belief that the challenged finding is true. See Tex. Fam. Code Ann.
§ 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder reasonably
could form such a firm conviction or belief, then the evidence is factually sufficient.
C.H., 89 S.W.3d at 18–19.
3. The Evidence Is Legally and Factually Sufficient to Support the
Noncompliance Finding Against Mother.
In her fourth issue, Mother contends that the evidence is legally and factually
insufficient to support the trial court’s finding under subsection (O) that she “failed to
comply with the provisions of a court order that specifically established the actions
necessary for [her] to obtain [J.B.’s] return[, when he had] been in [TDFPS’s] . . .
temporary managing conservatorship . . . for not less than nine months as a result of
[his] removal from [Mother] . . . for . . . abuse or neglect.” See Tex. Fam. Code Ann.
§ 161.001(b)(1)(O). Mother argues that no specific court order incorporating the
service plan with which she must comply is in evidence, nor is there clear and
convincing proof of abuse or neglect. She does not contend that she completed any
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part of the court-ordered service plan except visiting J.B. twice during the almost
sixteen months he was in TDFPS’s custody before the retrial.
a. Clear and Convincing Evidence Shows a Court Order
Specifically Established the Actions Necessary for Mother to
Regain Custody of J.B.
Subsection (O) initially requires that a parent has failed to comply with a valid
order for obtaining the return of the child. See In re D.G., No. 02-17-00332-CV,
2018 WL 547787, at *5–6 (Tex. App.—Fort Worth Jan. 25, 2018, no pet.) (mem. op.);
In re D.M.F., 283 S.W.3d 124, 133 (Tex. App.—Fort Worth 2009, pet. granted,
judgm’t vacated w.r.m.) (op. on reh’g). A trial court cannot enter an order or
judgment against a person unless the record shows proper service of citation on that
person, her appearance, or a waiver of service. D.G., 2018 WL 547787, at *5–6; In re
Tex. Dep’t of Family & Protective Servs., 415 S.W.3d 522, 528 (Tex. App.—Houston [1st
Dist.] 2013, orig. proceeding [mand. denied]).
Mother waived service on January 31, 2017. Her waiver included the statement
that she understood that absent written notification to the attorney for TDFPS of any
changes, “any notices that [she] might otherwise be entitled to receive with regard to
disposition of this proceeding” would “be forwarded to [her] at the address indicated
below.” However, Mother did not indicate a mailing or physical address on the
waiver; instead she provided telephone numbers and an email address.
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(i) The Trial Court Judicially Noticed the February 7,
2017 Temporary Order Incorporating Mother’s Service
Plan.
Although Mother argues that TDFPS “did not introduce or ask the court to
take judicial notice of any specific service plan,” at the retrial, the trial court took
judicial notice of the February 7, 2017 “Temporary Order Following Adversary
Hearing as to [Mother] Only” (Temporary Order), which incorporated the service
plan. See In re M.C., No. 02-15-00290-CV, 2016 WL 354186, at *3 (Tex. App.—Fort
Worth Jan. 28, 2016, no pet.) (mem. op.) (holding that a trial court’s judicial notice of
its file makes its “order described by subsection 161.001(b)(1)(O) . . . part of the
record that we may consider on appeal for purposes of [a parent’s] sufficiency
argument” and listing similar cases from sister courts holding the same).
(ii) The Temporary Order Was Clear and Specific.
The Temporary Order included the following provisions:
12. Finding and Notice
THE COURT FINDS AND HEREBY NOTIFIES THE
PARENTS THAT EACH OF THE ACTIONS
REQUIRED OF THEM BELOW ARE NECESSARY TO
OBTAIN THE RETURN OF THE [CHILD], AND
FAILURE TO FULLY COMPLY WITH THESE ORDERS
MAY RESULT IN THE RESTRICTION OR
TERMINATION OF PARENTAL RIGHTS.
13. Psychological or Psychiatric Evaluation:
13.1. IT IS ORDERED that [MOTHER] shall submit to and
cooperate fully in the preparation of a court-ordered
psychological or psychiatric evaluation. . . .
14. Counseling
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14.1. IT IS ORDERED that [MOTHER] shall attend and
cooperate fully in counseling sessions to address the
specific issues that led to the removal of the child from the
home and to address any additional issues arising from the
psychological examinations or from the counseling
sessions. Said counseling sessions shall begin no later than
2-15, 2017 [handwritten], and shall continue until the
counselor determines that no further sessions are necessary
or until further order of this Court.
15. Parenting Classes
15.1. IT IS ORDERED that [MOTHER] shall attend,
participate in and successfully complete parenting classes
and shall submit to [TDFPS] or file with [the] Court a
certificate of completion no later than 5-15-
2017 [handwritten].
16. Drug and Alcohol Assessments and Testing
16.1. IT IS ORDERED that [MOTHER] shall submit to and
cooperate fully in the preparation of the court-ordered drug
and alcohol dependency assessment.
17. Compliance with Service Plan
17.1. [MOTHER] is ORDERED, pursuant to § 263.106 Texas
Family Code, to comply with each requirement set out in
[TDFPS]’s original, or any amended, service plan during
the pendency of this suit.
(iii) The Service Plan Filed After the Temporary Order and
Mother’s Waiver Were Also Clear and Specific.
The family service plan filed with the court February 13, 2017, after Mother’s
waiver of service, includes the following among her required tasks and services:
[Mother] will actively participate in, contact, and follow the
recommendations of individual therapy. The goals will include
addressing the issues surrounding the reason for removal of the child,
past and present substance abuse, past trauma, etc. [Mother] is expected
to consistently engage in counseling until successfully discharged by the
therapist.
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....
[Mother] will initiate and maintain regular contact with the CPS
[Child Protective Services] caseworker weekly to provide progress
updates. You can text, call or email the caseworker.
[Mother] will attend all scheduled visitation with her child. This
will allow her the opportunity to enhance the parent/child relationship
and strengthen their bond. If you are unable to attend your scheduled
visit, you must contact the case transporter 6 hours before the scheduled
visit. If you do not arrive within 15 minutes of the scheduled visit the
visit will be cancelled and it will not be rescheduled.
[Mother] will refrain from any and all illegal activities.
[Mother] will successfully complete a parenting course (Love and
Logic) and provide [a] certificate to caseworker and be able to
demonstrate the ability to protect child from future abuse or neglect, and
will show concern for future safety of the child. [Mother] will also
demonstrate the ability to provide basic necessities such as food,
clothing, shelter, medical care, and supervision for the child.
[Mother] will submit to a Psychological Evaluation, sign a release
with her mental health provider and follow up with all
recommendations. . . .
[Mother] will obtain a substance and alcohol abuse assessment
and follow the recommendations. This includes, but is not limited to:
inpatient/outpatient treatment, substance abuse counseling, attending
90 NA/AA meetings in 90 days and providing sign in sheets to the
caseworker to demonstrate attendance and continue regular attendance
at NA/AA meetings throughout the case, obtaining a tenured NA/AA
sponsor and a home group, maintain daily contact with NA sponsor, and
work the 12-step program with the sponsor.
[Mother] will submit to random drug screenings when requested
by CPS to include but are not limited to: Oral Swabs, UA, Hair Follicle
and or Nail Clipping. Drug screenings must be completed within
4 hours of the request by the CPS worker. She will understand that each
missed request will result in an automatic positive screening which will
be noted in the CPS file.
[Mother] will understand that this service plan is not a checklist,
but a plan for positive life changes. [Mother] will understand that this
case has a one[-]year timeframe and as the case progresses, additional
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services may be required.
Consequently, we hold clear and convincing evidence supports the finding that a
specific court order establishing the steps Mother was ordered to undertake in order
to regain custody of J.B. was in evidence.
b. Clear and Convincing Evidence Shows Abuse or Neglect
Under Chapter 262 of the Texas Family Code.
Mother also challenges the legal and factual sufficiency of evidence supporting
the abuse-or-neglect element of the subsection (O) ground. As the Texas Supreme
Court has explained, “whether removal . . . 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, 583 (Tex. 2014). The words “abuse or neglect”
in the statute “are used broadly.” In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). They
“necessarily include[] the risks or threats of the environment in which the child is
placed.” Id.
Mother argues that J.B. was not removed from her for abuse or neglect under
Chapter 262 of the Texas Family Code, as required by section 161.001(b)(1)(O),
because:
• The case was opened when she tried to reclaim J.B. from Stepmother;
• Investigator Houseman acknowledged that Mother did not neglect or
abuse J.B. before the removal; and
• TDFPS’s “allegations of drug use, abuse and mental health issues were
either remote in time, speculative, or unproved.”
First, that TDFPS did not physically remove J.B. from Mother because he was
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not living with her does not mean he was not removed under the statute. “Children
are removed from their parents under Chapter 262 for the abuse or neglect of a child
whe[n] the children may have been physically in the care of a relative, a medical or
social services institution, or [TDFPS].” D.F. v. Tex. Dep’t of Family & Protective Servs.,
393 S.W.3d 821, 830 (Tex. App.—El Paso 2012, no pet.) (holding children placed in a
child crisis center by the person with whom their parent placed them and later
removed by TDFPS were removed from the parent under Chapter 262 for abuse or
neglect), abrogated on other grounds by E.C.R., 402 S.W.3d at 246; see E.C.R., 402 S.W.3d
at 248 (holding child was removed from its mother despite her incarceration at the
time of removal).
Second, even though Investigator Houseman acknowledged (1) Mother did not
abuse or neglect J.B. by placing him with Stepmother and (2) it was “fair” to say that
Mother did not endanger J.B. before the removal, Investigator Houseman also
testified:
• The referral included a “concern for [Mother’s] drug use”;
• Mother had a history of methamphetamine and marihuana use but
refused to tell Investigator Houseman when she last used drugs;
• Investigator Houseman became concerned that Mother was currently
using drugs when she observed Mother “moving around scratching
herself” and Mother’s “up and down” moods during their first meeting;
• Mother refused a drug test;
• Mother had been diagnosed with post-traumatic stress disorder and
major depression but was not taking medication;
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• Mother’s CPS history included recurrent mental health and drug issues;
• Before the removal, J.B. could not remember when he had last seen
Mother;
• Mother kept telling Stepmother or Aunt that she would retrieve J.B. but
made no arrangements to do so;
• Mother told Investigator Houseman that she lost her housing when she
went to jail; had been in and out of motel rooms and at times, homeless
since her release; and currently lived with an emotionally abusive,
“domestically violent” boyfriend;
• Mother recognized that she did not have a good place for J.B. and her to
live;
• Mother refused to give Investigator Houseman her address or allow a
home visit before the removal;
• Neither Stepmother nor Aunt could continue to care for J.B. without
“paperwork to help [satisfy] his . . . medical needs[ and] school needs”;
• Mother refused CPS-supervised visits with JBS and said “[s]he wasn’t
going to do anything CPS asked of her”;
• J.B. would have been in danger if he were returned to Mother while she
was using drugs, having untreated mental health issues, and in a
relationship fraught with domestic violence; and
• In Investigator Houseman’s opinion, Mother was not ready to regain
custody of J.B.
Further, the Temporary Order judicially noticed by the trial court includes the
following unchallenged finding:
Having examined and reviewed [TDFPS]’s pleadings and the sworn
affidavit accompanying the petition and based upon the facts contained
therein and the evidence presented to this Court at the hearing
conducted on this date, the Court finds there is sufficient evidence to
satisfy a person of ordinary prudence and caution that: (1) there was a
danger to [J.B.’s] physical health or safety . . . which was caused by
[Mother’s] act or failure to act . . . . The Court further finds that it is
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contrary to [J.B.’s] welfare . . . to remain in the home, and[] (2) the
urgent need for protection required [his] immediate removal . . . and
reasonable efforts consistent with the circumstances and providing for
[his] safety . . . were made to eliminate or prevent [his] removal . . . ; and
(3) reasonable efforts have been made to enable [him] to return home,
but there is a substantial risk of a continuing danger if [he] is returned
home.
Accordingly, applying the appropriate standard of review, we hold that the evidence is
legally and factually sufficient to satisfy the abuse-or-neglect element of subsection
(O). See, e.g., E.C.R., 402 S.W.3d at 249 & n.8 (holding that the evidence along with
the temporary order’s unchallenged findings like those above “establish[ed] that
E.C.R. was removed from [his parent] under chapter 262 for abuse or neglect”); M.C.,
2016 WL 354186, at *3 (relying on the parent’s untreated illness to uphold the
sufficiency of abuse-or-neglect evidence); In re K.L.C., No. 11-14-00019-CV,
2014 WL 3639124, at *3 (Tex. App.—Eastland 2014, pet. denied) (mem. op.) (holding
evidence of the home’s conditions and parent’s drug use justified the removal for
abuse or neglect); In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003,
no pet.) (noting factfinder can infer drug use from refusal of drug test).
Because we have held the evidence legally and factually sufficient on both
elements challenged by Mother, we also conclude that the evidence is legally and
factually sufficient to support the trial court’s termination finding based on subsection
(O). See Tex. Fam. Code Ann. § 161.001(b)(1)(O).
c. Mother Did Not Preserve a Notice Issue Regarding the
Service Plan, But Evidence Shows She Had Notice of It.
To the extent Mother implicitly incorporates a notice issue into her sufficiency
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complaint, she did not preserve it. See Tex. R. App. P. 33.1; In re B.L.D., 113 S.W.3d
340, 350 (Tex. 2003), cert. denied, 541 U.S. 945 (2004); In re C.R., No. 11-17-00244-CV,
2018 WL 1179323, at *3 (Tex. App.—Eastland Feb. 28, 2018, no pet.) (mem. op.).
Nevertheless, the evidence shows that she was aware of the service plan despite not
signing it.1 Although TDFPS conservatorship caseworker Amy Granados testified
that she did not believe Mother reviewed the service plan because Mother refused to
meet with her face-to-face, Granados also testified:
• She communicated with Mother through texts and phone calls about the
service plan;
• It was clear to Granados that Mother knew she must comply with the
service plan; and
• Mother completed none of the service-plan requirements except two
visits with J.B. after going more than a year without seeing him or having
any other significant contact with him.
Also, Mother admitted in her testimony:
• She had received the service plan by email but had not signed it;
• She had refused to submit to court-ordered drug tests in this case;
• She could offer no evidence of completing any services during this case;
and
• She had visited with J.B. only twice because she had refused to attend
TDFPS-supervised visits.
Even if Mother had preserved her notice issue, we would therefore hold that
1
We note that Mother was bound by the service plan despite her choice not to
participate in its formation. See Tex. Fam. Code Ann. § 263.103(c)–(d) (West Supp.
2017); In re T.T.F., 331 S.W.3d 461, 478 (Tex. App.—Fort Worth 2010, no pet.).
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she had notice of the court-ordered service plan.
We overrule her fourth issue.
B. We Do Not Reach Mother’s Three Remaining Issues.
Along with a best-interest finding, a finding of only one ground alleged under
section 161.001(b)(1) is sufficient to support a judgment of termination. In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003); In re A.H., No. 02–17–00222–CV,
2017 WL 5180785, at *13 (Tex. App.—Fort Worth Nov. 9, 2017, pet. denied); In re
E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). Because a
finding of only one ground alleged under section 161.001(b)(1) coupled with a best-
interest finding supports termination, we do not reach Mother’s three remaining
issues. See Tex. R. App. P. 47.1; A.V., 113 S.W.3d at 362; In re D.N., 405 S.W.3d 863,
872 (Tex. App.—Amarillo 2013, no pet.). In re D.D., No. 02-17-00368-CV,
2018 WL 1630708, at *6–8 (Tex. App.—Fort Worth Apr. 5, 2018, no pet.) (mem.
op.).
III. CONCLUSION
Having overruled Mother’s fourth issue, which is dispositive, we affirm the trial
court’s judgment.
Per Curiam
Delivered: September 27, 2018
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