in Re V.A.G., Children

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-19-00449-CV

IN THE INTEREST OF V.A.G., C.M.G., and M.R.G., Children

From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2018-PA-01486 Honorable Karen H. Pozza, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Rebeca C. Martinez, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

Delivered and Filed: November 13, 2019

AFFIRMED

Appellant (“Mother”) appeals the trial court’s order terminating her parental rights to

V.A.G., C.M.G., and M.R.G. Mother challenges the legal and factual sufficiency of the evidence

to support the trial court’s findings on the statutory grounds for termination. See TEX. FAM. CODE

ANN. § 161.001(b)(1). We affirm.

BACKGROUND

Mother and J.G. 1 are the parents of three children: V.A.G., C.M.G., and M.R.G. On July

9, 2018, the Texas Department of Family and Protective Services (the “Department”) filed a

petition requesting temporary managing conservatorship of the children and sought termination of

1 J.G. (“Father”) did not appeal the order terminating his parental rights and therefore we recite only those facts that pertain to Mother’s issues on appeal. 04-19-00449-CV

Mother’s parental rights. The trial court granted the Department’s request and appointed the

Department as temporary conservator of the children. During the pendency of the case, the trial

court entered orders pertaining to the actions necessary for Mother to obtain the return of her

children. On June 24, 2019, the trial court held a bench trial and, following trial, terminated

Mother’s parental rights. The trial court determined there was clear and convincing evidence that

termination was in the children’s best interest and that Mother (1) failed to comply with the

provisions of a court order specifically establishing the actions necessary for her to obtain the

return of her children and (2) used a controlled substance in a manner that endangered the health

or safety of the children and (a) failed to complete a court-ordered substance abuse treatment

program or (b) after completion of a court-ordered substance abuse treatment program continued

to abuse a controlled substance. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O), (P). Mother timely

appealed.

DISCUSSION

On appeal, Mother challenges the sufficiency of the evidence to support the trial court’s

findings under sections 161.001(b)(1)(O) and (P) of the Texas Family Code. See id. A parent-

child relationship can only be terminated if the trial court finds by clear and convincing evidence

that the parent committed an act prohibited by section 161.001(b)(1) of the Texas Family Code

and that termination is in the best interest of the child. Id. § 161.001(b)(1), (2). Only one predicate

finding under section 161.001(b)(1) is necessary to support a judgment of termination when the

trial court also finds that termination is in the best interest of the child. See In re A.V., 113 S.W.3d

355, 362 (Tex. 2003). Mother does not challenge the trial court’s finding that termination of her

parental rights is in the best interest of the children.

When reviewing the legal and factual sufficiency of the evidence, we apply the standards

of review established by the Texas Supreme Court. See In re J.F.C., 96 S.W.3d 256, 266–67 (Tex.

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2002); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). In evaluating the evidence for legal sufficiency,

we determine whether the evidence is such that a factfinder could reasonably form a firm belief or

conviction that the challenged ground for termination was proven. In re J.P.B., 180 S.W.3d 570,

573 (Tex. 2005) (per curiam). We review all the evidence in the light most favorable to the finding

and judgment, and we resolve any disputed facts in favor of the finding if a reasonable factfinder

could have done so. Id. 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. In

reviewing the evidence for factual sufficiency, we give due deference to the factfinder’s findings

and do not supplant the verdict with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per

curiam). We determine whether, on the entire record, a factfinder could reasonably form a firm

conviction or belief that the challenged finding is true. See In re C.H., 89 S.W.3d at 28.

A. Section 161.001(b)(1)(O) Finding

To terminate parental rights pursuant to subsection O, the Department must show that: (1)

the child was removed under chapter 262 of the Texas Family Code for abuse or neglect, (2) the

child has been in the permanent or temporary conservatorship of the Department for at least nine

months, and (3) 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). “Texas courts generally take a strict approach to subsection (O)’s

application.” In re S.J.R.-Z., 537 S.W.3d 677, 690 (Tex. App.—San Antonio 2017, pet. denied)

(quoting In re C.A.W., No. 01-16-00719-CV, 2017 WL 929540, at *4 (Tex. App.—Houston [1st

Dist.] Mar. 9, 2017, no pet.) (mem. op.)). “Courts do not measure the ‘quantity of failure’ or

‘degree of compliance’” with a court order. Id. (quoting In re D.N., 405 S.W.3d 863, 877 (Tex.

App.—Amarillo 2013, no pet.)). “A parent’s failure to complete one requirement of her family

service plan supports termination under subsection (O).” In re D.D.R., No. 04-18-00585-CV, 2019

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WL 360657, at *2 (Tex. App.—San Antonio Jan. 30, 2019, pet. denied) (mem. op.) (internal

quotation marks and brackets omitted) (quoting In re J.M.T., 519 S.W.3d 258, 267 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied)).

In her brief, Mother does not challenge the elements of subsection O that her children were

removed for abuse or neglect or that her children were in the Department’s care for at least nine

months. Mother only challenges the existence of a court order establishing actions necessary for

the return of her children. Mother does not dispute that she failed to comply with the Department’s

service plan; she argues that because the service plan was not filed with the court, admitted into

evidence at trial, or made an order of the court, the Department failed to meet its burden under

subsection O.

When a court signs an order appointing the Department as temporary managing

conservator under chapter 262 of the Texas Family Code, as the trial court did here, the Department

is required to file a service plan with the court no later than forty-five days after the order was

rendered. See TEX. FAM. CODE ANN. § 263.101. The trial court “shall incorporate the original and

any amended service plan into the orders of the court.” Id. § 263.106.

In this case, no document entitled “service plan” was ever filed with the trial court clerk or

admitted into evidence. However, specific requirements for Mother to obtain the return of her

children appear in a “Temporary Order Following Adversary Hearing,” signed by the trial court

on July 19, 2018. This order states that Mother appeared at an adversary hearing, held on July 19,

2018, in person and through her attorney of record and announced ready. Regarding services, the

order states:

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 CHILDREN, AND

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FAILURE TO FULLY COMPLY WITH THESE ORDERS MAY RESULT IN THE RESTRICTION OR TERMINATION OF PARENTAL RIGHTS.

11. Psychological or Psychiatric Evaluation

IT IS ORDERED that that [sic] the parties shall participate in a psychological or psychiatric evaluation as scheduled by the Department.

12. Counseling

IT IS ORDERED that the parties shall participate in counseling as scheduled by the Department.

13. Parenting Classes

IT IS ORDERED that the parties shall participate in parenting classes as scheduled by the Department.

14. Drug and Alcohol Assessments and Testing

IT IS ORDERED that the parties shall participate in drug and alcohol assessments and testing as scheduled by the Department.

15. Compliance with Service Plan

15.1. [Mother] is ORDERED, pursuant to § 263.106 Texas Family Code, to comply with each requirement set out in the Department’s original, or any amended, service plan during the pendency of this suit.

Approximately a month later, on August 22, 2018, the Department filed a status report with

the trial court. In its report, the Department requested, under a section entitled “FAMILY PLAN

OF SERVICE,” that “the court make the service plan for [Mother] and [Father] an order of the

court.” The Department, however, did not attach a document entitled “Family Plan of Service” to

its report. On September 4, 2018, the trial court issued an order following a status hearing. The

order states that the trial court reviewed the Department’s service plan for Mother and found it

“reasonable, accurate, and in compliance with previous orders of the Court.” The order notes that

Mother had reviewed, understood, and signed the service plan.

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At trial, the Department’s caseworker, Jacqueline Davis, testified that Mother was not in

compliance with the service plan that had been ordered. Davis specified that Mother had not

complied with the counseling component of her service plan. Davis testified that she referred

Mother to individual counseling, that Mother had received an appointment for a counseling

session, but that the counseling provider had not heard from Mother. Mother confirmed in her

testimony that she had not attended any of her individual counseling sessions. Davis also testified

that Mother had not completed domestic violence classes and, consequently, had not complied

with the domestic violence prevention component of her service plan. Mother testified that she

was scheduled to finish her domestic violence classes the week following trial. In addition, Davis

testified that Mother had not complied with her service plan by remaining sober. According to

Davis, Mother tested positive for methamphetamines in January and April 2019. Mother testified

at trial that she had last used methamphetamines in October 2018. The maternal aunt, who was

the children’s caregiver at the time of trial, also testified. She opined that she did not believe

Mother’s trial testimony regarding her sobriety. The maternal aunt explained that Mother called

her on the Friday before trial and, according to the aunt, Mother stated she had been using

methamphetamines for a couple of months but had been clean for the last month.

This record provides clear and convincing evidence to support a finding that the trial court

had established, by order, specific actions necessary for Mother to obtain the return of her children.

See TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Apart from any official “service plan” that was

not filed in the trial court, the appellate record shows that the trial court specifically ordered

Mother, on July 19, 2019, to participate in: “psychological or psychiatric evaluations as scheduled

by the Department,” “counseling as scheduled by the Department,” “parenting classes as scheduled

by the Department,” and “drug and alcohol assessments and testing as scheduled by the

Department.” See In re J.B., No. 02-18-00173-CV, 2018 WL 4626427, at *3–5 (Tex. App.—Fort

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Worth Sept. 27, 2018, no pet.) (mem. op.) (per curiam) (determining that a temporary order

established clear and specific steps for a parent to obtain the return of her child); In re M.C., 482

S.W.3d 675, 686–87 (Tex. App.—Texarkana 2016, pet. denied) (determining that a temporary

order stating specific actions a parent was required to comply with satisfied the subsection O

requirement for a court order). Although the trial court did not explicitly state at trial that it was

taking judicial notice of its July 19, 2019, temporary order, we may presume it did so. See In re

J.E.H., 384 S.W.3d 864, 869–70 (Tex. App.—San Antonio 2012, no pet.) (“[W]hen the record is

silent, as here, the trial court may be presumed to have taken judicial notice of the records in the

court’s file without any request being made and without an announcement in the records that it has

done so.”); see also In re A.X.A., No. 04-09-00519-CV, 2009 WL 5150068, at *4 n.3 (Tex. App.—

San Antonio Dec. 30, 2009, no pet.) (mem. op.) (presuming that the trial court took judicial notice

of the family service plan and the order adopting the plan even though it was not admitted into

evidence at trial and the trial court was not asked to take judicial notice of the order at trial).

In addition, the trial court ordered Mother in the temporary order “to comply with each

requirement set out in the Department’s original, or any amended, service plan during the

pendency of this suit.” The trial court reaffirmed this order after a status hearing when it stated in

an order that it had reviewed the Department’s service plan for Mother and found it “reasonable,

accurate, and in compliance with previous orders of the Court.” The order also noted that Mother

had reviewed, understood, and signed the service plan. At trial, the caseworker testified to specific

actions the service plan required of Mother. The caseworker testified that the service plan required

Mother to attend individual counseling, complete domestic violence classes, and remain sober,

among other things. Although the service plan was not filed, the caseworker’s testimony provides

competent evidence as to specific actions in the court-ordered service plan that the trial court had

established for Mother to obtain the return of her children. See In re A.A.F.G., No. 04-09-00277-

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CV, 2009 WL 4981325, at *3–4 n.4 (Tex. App.—San Antonio Dec. 23, 2009, no pet.) (mem. op.)

(stating that while the service plan was not admitted at trial, sufficient evidence of the service plan

was “presented by the Department delineating several requirements set forth in the plan” and

determining that the trial court’s subsection O finding was supported by legally and factually

sufficient evidence).

Here, the trial court could have taken judicial notice of its pretrial orders and credited

testimony from the caseworker, the maternal aunt, and Mother to conclude that Mother had failed

to fulfill specific court-ordered counseling, domestic violence, and drug abstinence requirements.

This is not a case where the record lacks any evidence as to what precisely a parent was required

to do to obtain the return of a child. Cf. In re D.N., 405 S.W.3d at 876–79 (explaining that the

court could not be certain what a parent was supposed to do where trial testimony did not identify

specific actions required in a service plan or a specific order incorporating the service plan).

Although Mother’s service plan was not filed with the trial court, other competent evidence in the

record is legally and factually sufficient to support the trial court’s finding that Mother failed to

comply with a court order that specifically established the actions necessary for her to regain

custody of her children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O).

Because we uphold the trial court’s subsection O finding, we need not address the

remaining predicate ground for termination under subsection P. See In re A.V., 113 S.W.3d at 362

(holding that only one predicate finding under § 161.001(b)(1) is necessary to support a judgment

of termination when there is also a finding that termination is in the child’s best interest).

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CONCLUSION

Because Mother does not challenge the trial court’s best-interest finding and because we

overrule her challenge to the sufficiency of the evidence to support a finding on a predicate ground

for termination, we affirm the trial court’s order.

Rebeca C. Martinez, Justice

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