in the Interest of J.S.G. and J.G. ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00476-CV
IN THE INTEREST OF J.S.G. and J.G., Children
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2017PA00010
Honorable Solomon Casseb III, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Irene Rios, Justice
Delivered and Filed: January 7, 2019
AFFIRMED
This is an accelerated appeal from an order terminating appellant’s parental rights to his
children, J.S.G. and J.G. The appellant-father challenges the sufficiency of the evidence to support
the trial court’s findings of several predicate grounds for termination, as well as an alternative
ground for termination based on failure to legitimate. See TEX. FAM. CODE ANN. §§ 161.001(b)(1),
161.002. Appellant also contends the trial court erred by opting not to have the court reporter
transcribe the attorneys’ closing arguments. We affirm the trial court’s judgment of termination.
BACKGROUND
In November 2016, the Department of Family and Protective Services (the Department)
received a referral concerning the mother of J.S.G. and J.G. caring for the children while under the
influence of drugs and having lost her home. The Department filed its Original Petition for
04-18-00476-CV
Protection of a Child, For Conservatorship, and For Termination in Suit Affecting the Parent-Child
Relationship on January 4, 2017 and was appointed temporary managing conservatorship of the
children. A bench trial was held in two phases on June 22, 2018 and July 5, 2018. After
considering the evidence presented on both dates, the trial court terminated appellant-father’s
parental rights to J.S.G. and J.G. based on its findings of endangerment, constructive abandonment
and failure to comply with a court-ordered service plan, and its finding that termination was in the
best interest of the children. TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (E), (N), (O). The trial
court also found that appellant had failed to legitimate the children and alternatively ordered
termination of his parental rights on that ground. Id. § 161.002(b). Appellant appealed.
STANDARD OF REVIEW
A parent-child relationship may be terminated only if the trial court finds by clear and
convincing evidence one of the predicate grounds enumerated in section 161.001(b)(1) and that
termination is in the child’s best interest. Id. § 161.001(b)(1), (2). Clear and convincing evidence
requires “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. Appellant only challenges
the factual sufficiency of the evidence to support the trial court’s findings under section
161.001(b)(1)(D), (E), (N), and (O). Appellant does not challenge the trial court’s finding that
termination is in the children’s best interests. In reviewing the factual sufficiency of the evidence,
we give due deference to the factfinder’s findings and refrain from substituting our judgment for
that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, in
light of the entire record, the disputed evidence that a reasonable trier of fact 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 in the truth of the finding; if so, the evidence is factually insufficient.
Id.; In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002).
-2-
04-18-00476-CV
PREDICATE FINDINGS UNDER FAMILY CODE SECTION 161.001
In several issues, appellant challenges the sufficiency of the evidence supporting the trial
court’s predicate findings under section 161.001(b)(1)(D), (E), (N), and (O). See TEX. FAM. CODE
ANN. § 161.001(b)(1)(D), (E), (N), (O). The trial court concluded there was clear and convincing
evidence that appellant: (1) knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endanger the physical or emotional well-being of the children;
(2) engaged in conduct or knowingly placed the children with persons who engaged in conduct
which endangers the physical or emotional well-being of the children; (3) constructively
abandoned the children; and (4) failed to comply with the provisions of a court order specifically
establishing the actions necessary for appellant to obtain the return of the children. Id.
Subsection (O) allows termination of the parent-child relationship when a parent has failed
to satisfy any of the conditions set out in the family service plan. Id. § 161.001(b)(1)(O). Texas
courts generally take a strict approach to subsection (O)’s application. In re D.N., 405 S.W.3d
863, 877 (Tex. App.—Amarillo 2013, no pet.). In construing subsection (O), courts only look for
a parent’s failure to comply and do not measure a parent’s “degree of compliance” or “quantity of
failure.” Id. In this case, appellant’s service plan required him to: (1) participate in domestic
violence classes or counseling as a victim; (2) complete a drug assessment and participate in a drug
treatment program, and maintain a drug free environment; (3) refrain from criminal activities and
“satisfactorily resolve any outstanding criminal issues that exist currently or arise during this case
in a timely manner and in a favorable resolution to the family situation;” (4) submit to a
psychological assessment and follow all recommendations, including individual counseling
throughout the duration of the case; (5) participate in an approved parenting class; (6) obtain and
submit proof of stable employment and housing; and (7) keep all scheduled appointments and
follow all recommendations of any provider affiliated with the service plan.
-3-
04-18-00476-CV
Appellant testified by phone from prison and agreed that his caseworker went over the
services required under his family service plan and he signed the plan. He testified that before he
was incarcerated he completed the psychological classes. He attempted to start the domestic
violence classes but was working and had problems with transportation. Appellant also had trouble
finding a domestic violence class that would accept a male victim. He was subsequently
incarcerated for violating his probation on a 2011 felony possession of cocaine case. After his
incarceration, appellant began participating in the “Changes” program at the Dominguez Unit. As
part of the program, he completed classes on parenting, family coping, anger management, and
skills for use upon release. Appellant stated the family coping course included some topics on
domestic violence. Appellant conceded he has not provided any documentation or other proof to
his caseworker of his completion of these classes and has not provided her with the name of a
program contact at the prison. Appellant stated he cannot obtain proof of completion of any of the
courses until the end of the program when he will receive a certificate. He was recently transferred
to a different prison unit, so his participation in the program’s substance abuse class was
interrupted. He is currently on the list to get back into the program to finish up the “next few units”
that he needs for completion, including the substance abuse class. Appellant also conceded there
was a period of time at the Dominguez Unit when he lost privileges to take the classes due to a
behavioral issue on his part.
Appellant’s service plan was admitted into evidence as State Exhibit #5, and Martine
Arreola, appellant’s caseworker, also testified to the requirements of his service plan. Arreola
testified she reviewed the service plan with appellant, he appeared to understand the requirements,
and he signed the plan which was then filed with the court. Of the several requirements, Arreola
testified that appellant only completed the psychosocial evaluation. She acknowledged that
appellant began individual counseling sessions before his incarceration, but stated he was
-4-
04-18-00476-CV
discharged “due to no show.” Arreola agreed that appellant had reached out to her for help with
transportation issues, including for visits with his children, and that he sometimes had to walk long
distances. Arreola testified that, as of the July 5, 2018 trial, appellant had been incarcerated for
approximately 12 months out of the 18-month duration of the CPS case and his expected release
date was February 2019. Appellant had failed to provide Arreola with any documentation or other
proof that he was participating in the Changes prison program and she was unable to verify his
participation. Appellant had stayed in touch with her from prison and had informed her that he
would receive a certification upon completion of the entire program; he stated that no
documentation was available to prove his completion of any particular class during the program.
Arreola also testified, however, that the family coping class that appellant took in prison does not
meet the Department’s requirements for the domestic violence class in appellant’s service plan.
Although the evidence shows that appellant completed one of the requirements on his
service plan, the evidence conclusively shows he did not comply with all of the requirements of
his service plan. See In re M.C.G., 329 S.W.3d 674, 676 (Tex. App.—Houston [14th Dist.] 2010,
pet. denied) (determining a parent’s failure to complete just one requirement of the service plan
supports termination); In re T.T., 228 S.W.3d 312, 319 (Tex. App.—Houston [14th Dist.] 2007,
pet. denied) (affirming that substantial or partial compliance with a service plan is insufficient to
avoid termination). While appellant’s incarceration made completion of his service plan more
difficult, appellant also failed to fully comply with the plan’s requirements, e.g., individual
counseling, even before his incarceration. Accordingly, we hold the evidence is factually
sufficient to support the trial court’s finding under section 161.001(b)(1)(O). 1 Because a single
1
Appellant also argues the defense provided by subsection (d) of section 161.001 bars termination for his failure to
complete his service plan because he made a good faith effort to comply. See TEX. FAM. CODE ANN. § 161.001(d)
(providing that a court may not order termination under section 161.001(b)(1)(O) based on a parent’s failure to comply
with a specific provision of a court order if the parent proves (1) he was unable to comply and (2) made a good faith
-5-
04-18-00476-CV
ground under section 161.001(b)(1) can support termination when there is also a finding that
termination was in the child’s best interest, we need not address appellant’s challenges to the
evidence in support of termination under subsections (D), (E), and (N). See In re A.V., 113 S.W.3d
355, 362 (Tex. 2003).
TERMINATION UNDER FAMILY CODE SECTION 161.002
Appellant asserts that the trial court erred in finding that termination of his parental rights
was warranted under section 161.002. See TEX. FAM. CODE ANN. § 161.002(b) (providing that the
rights of an alleged father may be terminated if, after being served with citation, he does not
respond by timely filing an admission of paternity or a counterclaim for paternity). Appellant
argues that, because he appeared at the July 5, 2018 trial proceeding and testified he is the father
of J.S.G. and J.G., he admitted paternity and therefore his parental rights could not be terminated
under section 161.002. See id. Appellant also notes that DNA test results filed on July 20, 2018
confirmed his paternity, and an adjudication of his paternity is reflected in the final termination
order signed on August 23, 2018. However, the trial court’s finding that termination of appellant’s
parental rights was warranted under section 161.002(b) was made in the alternative to its findings
of the predicate grounds for termination under 161.001(b)(1) (D), (E), (N), and (O). Because we
have already held that the statutory termination ground (O) is supported by sufficient evidence, we
need not address this alternative ground for termination. See In re A.V., 113 S.W.3d at 362.
CLOSING ARGUMENTS
Finally, appellant asserts the trial court committed an error of law that probably prevented
him from properly presenting the case on appeal by opting not to instruct the court reporter to
effort to comply and his failure to comply is not attributable to any fault of the parent). However, subsection (d) did
not take effect until September 1, 2017 and does not apply to a suit affecting the parent-child relationship filed prior
to that date. The Department’s petition for termination was filed on January 4, 2017.
-6-
04-18-00476-CV
record the attorneys’ closing arguments. See TEX. R. APP. P. 44.1(a)(2). The record reflects that,
at the close of evidence, the trial court informed the parties that his practice was to not require the
court reporter to transcribe closing arguments. Appellant did not request that the closing
arguments be recorded or otherwise object to the trial court’s decision; appellant also did not raise
the matter in a motion for new trial or create a bill of exception. To preserve a complaint for
appellate review, a party must make a timely request, objection, or motion in the trial court stating
the grounds for the ruling the complaining party is seeking with sufficient specificity so that the
trial court is made aware of the complaint. TEX. R. APP. P. 33.1(a)(1). A complaining party must
also obtain a ruling from the trial court on the request, objection, or motion. TEX. R. APP. P.
33.1(a)(2). The record here does not show that appellant preserved his complaint concerning
recording of the closing arguments for appellate review.
CONCLUSION
Based on the foregoing reasons, appellant’s issues on appeal are overruled and the trial
court’s final order of termination is affirmed.
Rebeca C. Martinez, Justice
-7-