In the Interest of J.A., E.A., H.L., S.L., and S.L., Children v. the State of Texas ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00350-CV
IN THE INTEREST OF J.A., E.A., H.L., S.L., AND S.L., CHILDREN
On Appeal from the 46th District Court
Wilbarger County, Texas
Trial Court No. 29,372, Honorable Dan Mike Bird, Presiding
May 8, 2023
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.
Appellants, “Robert” and “Karen,” appeal from the trial court’s judgment terminating
their parental rights.1 Appellee is the Texas Department of Family and Protective
Services. On appeal, both Appellants challenge whether termination was proper under
TEX. FAM. CODE § 161.001(b)(1)(O) and is in the best interest of the children. After
reviewing the evidence, we affirm the judgment.
1To protect their privacy, we will use pseudonyms to refer to the parents and children. See TEX.
FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b).
Background
Robert and Karen are the parents of “Harriet” (6-year-old female), “Sabrina” (five-
year-old female), and “Shari” (three-year-old female). Karen is also a parent to two older
children—“Jack” (eleven-year-old male) and “Ellie” (nine-year-old female)— through a
prior relationship with “Joe.”2 At the time of their removal by the Department, the five
children resided with Robert and Karen.
In July 2021, the Department filed its original petition for termination of Robert’s
and Karen’s parental rights to the children. The affidavit in support of emergency removal
alleged physical neglect and concern about an unsafe and unsanitary living environment
outside and inside their home. Lucy Hernandez, an agent for the Department, stated that
when she arrived at the home, she observed the five children playing outside; the three
youngest were completely naked. Inside, the children’s residence contained a living room
with an unsecured plywood floor. The plywood floor had holes large enough that
Hernandez could see the ground underneath the trailer, where piles of trash lay.3 A thirty-
gallon trash bin, overflowing with garbage, sat in the middle of the living room; flies circled
the debris. Hernandez observed days-old dog feces and urine, including dog feces on
the living room couch and on laundry.
In the kitchen area, Hernandez observed piles of dirty dishes, leftover food, and
trash, while “multiple [] flies swarmed around it.” In Karen’s bedroom was an uncovered
fuse box accessible to the children; “wires were observed to be hanging out of the fuse
2 Joe’s parental rights to Jack and Ellie were also terminated, but he did not appeal from that order.
3Britney Williams testified at final hearing that stray animals sometimes entered the home through
these holes.
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box.” Throughout the rest of the home, Hernandez observed more trash and pet waste,
electrical wiring accessible in the children’s room, stained mattresses on the floor, and a
hole in a bedroom wall that was open to the outside.4 Due to the unsanitary conditions in
the home, the Department made the decision to conduct an emergency removal of the
children.
In September 2021, an agreed Family Plan of Service Agreement was established
and made an order of the trial court. The service plan conditioned the return of their
children on, among other things:
(1) completing parenting classes and demonstrating learning;
(2) actively participating in individual counseling and following all
recommendations;
(3) actively participating in family counseling and following all
recommendations;
(4) providing and maintaining a safe, sanitary, and stable home for a
minimum of six months to demonstrate stability;
(5) demonstrating and providing a stable and legal source of income
allowing them to provide for the children on an on-going basis
substantiated by pay stubs verifying employment or income; and
(6) completing all services and recommendations by 2INgage.5
4 This was not the children’s first encounter with the Department. Hernandez attested that Karen
had agreed to work services and complete a family plan as early as 2018. However, in September 2019,
conditions for the children deteriorated; they were found to be filthy, insect bitten, and covered in head lice
and bed bugs. These conditions remained the same or worse in June 2020, followed by some improvement
between August and September 2020. Even then, however, Ellie was observed with a grapefruit-sized
bruise on her right thigh.
5 2INgage is a community service provider of services to meet the needs of children, youth, and
families. The service provider is a state contractor providing case management and family services
designed to achieve permanency in the home.
3
Following a permanency hearing in June 2022, Robert and Karen were also ordered by
the trial court to complete psychological evaluations and to follow all recommendations,
to complete parenting classes for large families, and to complete individual and family
counseling.
At the final hearing, Britney Williams, the permanency case manager for Robert
and Karen during the past eighteen months, testified about the parents’ efforts to comply
with the court’s orders. A monitored return of the children to the residence was attempted
in May 2022, but cut short because, in part, Sabrina complained Robert hit her in the head
with a belt, causing a cut, bruising, and swelling. Robert and Karen denied the allegation,
replying that Sabrina had fallen outdoors and struck a rock.
Moreover, Williams testified about the parents’ requirements to provide and
maintain a safe, sanitary, and stable home for a minimum of six months. The home’s
living conditions tended to temporarily improve as scheduled hearing dates neared, but
quickly fell back into “disarray” in later days. Williams visited the residence in September
and October 2022 between the dates of the permanency hearing and final hearing.6
Outdoor photographs in September depicted broken windows, piles of old lumber, broken
lumber planks, weeds several feet high, and abandoned equipment. Images inside the
home revealed more filth: urine-stained carpets and floors, overflowing trash cans, pet
waste throughout, and countertops piled high with dirty dishes. Portions of the ceiling
had collapsed due to the elements and lack of maintenance. At least one open electrical
6 Photographs of the residence during visits from May 11, 2022, through October 19 were admitted
as the Department’s Exhibit Six.
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box remained. Williams observed a gasoline can inside the home and that some of the
home’s occupants smoke cigarettes.7
Williams also testified that neither Robert nor Karen completed all of their court-
ordered services. She testified that Robert failed to complete individual counseling,
parenting classes, and had not provided proof of a legal source of income for a six-month
period. She testified that Karen failed to complete individual counseling, attendance at a
women’s group, and parent counseling. According to Williams, both Robert and Karen
failed to provide and maintain a safe, sanitary, and stable home for a minimum of six
months as required by the service plan.
At the conclusion of the hearing, the trial court terminated Robert’s and Karen’s
parental rights. The court found that clear and convincing evidence supported the
conclusion that Robert and Karen failed to comply with the court’s orders necessary to
obtain the return of their children. The trial court also found by clear and convincing
evidence that termination of their parental rights was in the children’s best interest. This
appeal followed.
Analysis
The standards by which we assess the sufficiency of evidence is well-established
and require no detailed elaboration here.8 Under Subsection (O), “[t]he court may order
7 During an October inspection, Williams observed that some conditions improved, as some rooms
were tidier and had been swept. However, conditions had worsened in others: ceiling holes had enlarged,
plasterboard on ceilings sagged, and insulation protruded from walls.
8 When reviewing evidence for legal sufficiency, we 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). We assume
that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so and
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termination of the parent–child relationship if the court finds by clear and convincing
evidence: [the parent] failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of the child.” TEX.
FAM. CODE ANN. § 161.001(b)(1)(O); In re A.L.R., 646 S.W.3d 833, 837 (Tex. 2022).
Relying in large part on a decision by the Fourteenth Court of Appeals,9 Robert and Karen
assert that their “substantial” or “material” compliance with their service plans should be
sufficient to avoid termination of their parental rights under section 161.001(b)(1)(O), and
the best interest findings, and that the Court should order a new trial. We disagree.
Subsection O
Under this Court’s jurisprudence, we “undertake a strict approach to subsection
(O)’s application.” In re A.A., 635 S.W.3d 430, 441 (Tex. App.—Amarillo 2021, pet.
granted); In re J.C., No. 07-16-00024-CV, Tex. App. LEXIS 4726, at *2 (Tex. App.—
Amarillo May 4, 2016, no pet.) (holding that subsection O “does not contemplate or permit
a certain degree of non-compliance). The parent must comply with all of the court ordered
provisions to avoid the application of § 161.001(b)(1)(O). Nor does the statute allow for
excuses.”) (citations omitted). “Substantial compliance is not the same as complete
disregard all evidence that a reasonable factfinder could have disbelieved or found to have been not
credible. If, after conducting a legal sufficiency review, we determine that no reasonable factfinder could
have formed a firm belief or conviction that the matter that must be proven was true, then the evidence is
legally insufficient. Id. See also In re E.C.R., 638 S.W.3d 755, 764 (Tex. App.—Amarillo 2021, pet. denied).
In a factual sufficiency review, we give due consideration to evidence that the factfinder could
reasonably have found to be clear and convincing. E.C.R., 638 S.W.3d at 764. 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.
9 See In re A.J.A.R. and M.J.R., 631 S.W.3d 360 (Tex. App.—Houston [14th Dist.] July 24, 2020,
pet. denied) (holding the evidence to be legally and factually sufficient to support the trial court’s finding that
appellant failed to comply with the terms of the family service plan adopted by the court).
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compliance.” In re S.J.R.-Z, 537 S.W.3d 677, 690 (Tex. App.—San Antonio 2017, pet.
denied). In 2022, the Supreme Court held that notwithstanding a parent’s completion of
some service plan requirements, legally sufficient evidence supported upholding
termination of parental rights pursuant to subsection O because the parent failed to
complete one requirement (i.e., maintain a safe and stable home environment, which
included providing safe home conditions). In re J.W., 645 S.W.3d 726, 742 (Tex. 2022).
The evidence shows, and Robert and Karen concede, that the parents failed to
meet all of the service plan’s requirements. This is particularly true regarding the poor
conditions of the home, which are similar to those found by the Supreme Court in J.W. to
evidence a failure to maintain a safe and stable home environment. Id. at 736. We find
that legally and factually sufficient evidence supports the trial court’s finding under
subsection O. Appellants’ first issue is overruled.
Best Interest of the Children
Next, Robert and Karen challenge the sufficiency of the Department’s evidence to
prove that termination of parental rights is in the best interest of the children. To assess
the trial court’s best interest determination, we may consider the factors itemized in Holley
v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).10 While the Holley list “is by no means
exhaustive, [it] does indicate a number of considerations which either have been or would
10 The Holley factors are: (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
which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for
the acts or omissions of the parent. Holley, 544 S.W.2d at 371–72.
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appear to be pertinent.” Holley, 544 S.W.2d at 372. “The absence of evidence about
some of these considerations would not preclude a fact-finder from reasonably forming a
strong conviction or belief that termination is in the child’s best interest, particularly if the
evidence were undisputed that the parental relationship endangered the safety of the
child.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2005). “Evidence that proves one or more
statutory grounds for termination may also constitute evidence illustrating that termination
is in the child’s best interest.” In re C.J.F., 134 S.W.3d 343, 354 (Tex. App.—Amarillo
2003, pet. denied).
Robert and Karen rely almost entirely on the completion of many service
requirements and their “fundamental liberty interest in the companionship, care, custody,
and management of [their] children.” In re E.C.R., 402 S.W.3d 239, 240 (Tex., 2013).
While we do not doubt that Robert and Karen love their children, the conditions of their
home remained unsafe and unsanitary throughout much of the proceedings. Neither
parent presented a plan whereby they could take care of the needs of the children or
provide a safe, sanitary, and stable household. Instead, the evidence presented at final
hearing suggested that conditions at the residence may only temporarily improve.
Since their removal, the children have demonstrated significant improvement.
Although adoption was not available for all the children, they are all experiencing a safe,
sanitary, and stable living environment. Jack, for example, suffers from autism with
behavioral issues. Before placement, he was easily distracted, quiet, and disengaged;
his education suffered due to absences and tardiness. Since his placement, however,
Jack is socializing better, and he is more verbal, well-liked, and cared for.
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Since their placement, Ellie and Harriet have benefited from therapy, reducing their
emotional outbursts and improving their efforts at self-regulation. Both children are being
treated by speech therapists and improving their social skills at school and in church.
Sabrina’s and Shari’s foster parent testified that the girls were initially upset and
suffered from self-inflicted injuries. Over time, there have been fewer instances of
outbursts and self-injurious behavior; the two girls are improving social skills, attending
church, and making friends. The foster parent plans to adopt the children.
We conclude that legally and factually sufficient evidence supports the finding that
termination of Robert’s and Karen’s parental rights is in the best interest of the children.
See TEX. FAM. CODE ANN. § 161.001(b)(2). Robert’s and Karen’s second issue is
overruled.
Conclusion
Having overruled all issues on appeal, we affirm the judgment of the trial court.
Lawrence M. Doss
Justice
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