Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-23-00804-CV
In the Interest of A.F.T., D.M.P.H., and E.C.T., Children
From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2022-PA-00605 Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Liza A. Rodriguez, Justice
Delivered and Filed: January 24, 2024
AFFIRMED
This is an appeal from the trial court’s termination of K.T.’s parental rights to her children,
A.F.T., D.M.P.H., and E.C.T. In one issue, K.T. argues the evidence is legally and factually
insufficient to support each of the statutory grounds for termination. We affirm.
BACKGROUND
On April 18, 2022, the Texas Department of Family and Protective Services (“the
Department”) filed the underlying suit to terminate K.T.’s parental rights, along with an affidavit
in support of removal of then four-year-old A.F.T., three-year-old D.M.P.H., and ten-month-old
E.C.T. The children were removed from K.T.’s care and the Department was named their
temporary sole managing conservator. Thereafter, the Department prepared a service plan for K.T.,
which she signed on May 31, 2022. 04-23-00804-CV
More than a year later, on June 30, 2023, and July 14, 2023, the trial court held a bench
trial on the Department’s termination claim. After the trial, the trial court signed a judgment
terminating K.T.’s parental rights to A.F.T., D.M.P.H., and E.C.T. on two statutory grounds: (1)
constructive abandonment, pursuant to section 161.001(b)(1)(N) of the Texas Family Code, and
(2) failure to comply with the provisions of a court-ordered service plan, pursuant to section
161.001(b)(1)(O). The trial court also found that termination of K.T.’s parental rights was in the
children’s best interest. K.T. appealed.
STANDARDS OF REVIEW
When reviewing the legal sufficiency of the evidence, we look “at all the evidence in the
light most favorable to the 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.O.A., 283 S.W.3d 336, 344
(Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). When reviewing the factual
sufficiency of the evidence, we consider disputed or conflicting evidence. Id. at 345. “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. (quoting In re J.F.C., 96
S.W.3d at 266). Under these standards, the factfinder is the sole judge of the weight and credibility
of the evidence. Id. at 346.
CONSTRUCTIVE ABANDONMENT
One of the statutory grounds contained in the termination judgment is constructive
abandonment. To prove constructive abandonment, the Department must prove that the children
have been in its custody for at least six months and: (1) the Department made reasonable efforts to
return the child to the parent; (2) the parent has not regularly visited or maintained significant
contact with the child; and (3) the parent has demonstrated an inability to provide the child with a
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safe environment. See TEX. FAM. CODE § 161.001(b)(1)(N). Before the trial court may terminate
parental rights on constructive abandonment grounds, each of subsection (N)’s three elements must
be proven by clear and convincing evidence. In re A.L.H., 468 S.W.3d 738, 744 (Tex. App.—
Houston [14th Dist.] 2015, no pet.). “The first element focuses on the Department’s conduct; the
second and third elements focus on the parent’s conduct.” Id.
“Implementation of a family service plan by the Department is considered a reasonable
effort to return a child to its parent if the parent has been given a reasonable opportunity to comply
with the terms of the plan.” In re A.Q.W., 395 S.W.3d 285, 289 (Tex. App.—San Antonio 2013,
no pet.), overruled on other grounds by In re J.M.T., 617 S.W.3d 604, 611 (Tex. App.—San
Antonio 2020, no pet.). In evaluating the Department’s efforts to return children to a parent, “the
question is whether the Department made reasonable efforts, not ideal efforts.” In re F.E.N., 542
S.W.3d 752, 767 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
Here, the record contains the following evidence concerning the preparation and
implementation of a service plan. In her testimony, K.T. acknowledged that the Department had
prepared a service plan for her at the beginning of the case, which she signed on May 31, 2022.
K.T. noted that by the time of trial she had completed some of the services in the service plan. K.T.
also confirmed that she had met with a Department caseworker and talked with her about parts of
the service plan.
A Department caseworker, Jennifer Henry, testified that the service plan required K.T. to:
(1) complete parenting classes, (2) stabilize her living and financial situation, (3) complete a drug
abuse assessment, (4) engage in drug testing, (5) complete a psychological evaluation and follow
all recommendations made in the evaluation, (6) build an appropriate support system, and (7) join
an online autism support group because one of the children was believed to be autistic. Henry
acknowledged that K.T had completed some but not all services in the service plan by the time of
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trial. According to Henry’s testimony, she and K.T. had met and talked about the service plan,
including K.T.’s employment status, her housing situation, and K.T.’s visits with the children.
Henry also testified that the Department had provided K.T. with a referral to a counselor.
Furthermore, the evidence showed that Henry had talked to K.T. about building a support
system. According to K.T.’s testimony, she had told Henry that she did not have a support system
and that the only adult who could provide support for her was an uncle who lived out of state.
According to Henry’s testimony, she and K.T. had talked about whether the father of K.T.’s new
baby 1 might be able to provide her with emotional or financial support, but K.T. “couldn’t give a
set answer” to Henry’s question.
In arguing the evidence is legally and factually insufficient to support the constructive
abandonment ground for termination, K.T. challenges a single element of this ground—whether
the Department made reasonable efforts to return the children to the parent. Specifically, K.T.
asserts that the evidence is insufficient to support a finding that she had a reasonable opportunity
to complete her service plan not because she did not have ample time to complete the services, but
because of her purported limited cognitive function. In her brief, K.T. asserts that the trial court
appointed a guardian ad litem for her because of her limited cognitive function, but the trial court’s
order, signed on May 9, 2022, does not reveal the reason for the guardian ad litem’s appointment.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-23-00804-CV
In the Interest of A.F.T., D.M.P.H., and E.C.T., Children
From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2022-PA-00605 Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Liza A. Rodriguez, Justice
Delivered and Filed: January 24, 2024
AFFIRMED
This is an appeal from the trial court’s termination of K.T.’s parental rights to her children,
A.F.T., D.M.P.H., and E.C.T. In one issue, K.T. argues the evidence is legally and factually
insufficient to support each of the statutory grounds for termination. We affirm.
BACKGROUND
On April 18, 2022, the Texas Department of Family and Protective Services (“the
Department”) filed the underlying suit to terminate K.T.’s parental rights, along with an affidavit
in support of removal of then four-year-old A.F.T., three-year-old D.M.P.H., and ten-month-old
E.C.T. The children were removed from K.T.’s care and the Department was named their
temporary sole managing conservator. Thereafter, the Department prepared a service plan for K.T.,
which she signed on May 31, 2022. 04-23-00804-CV
More than a year later, on June 30, 2023, and July 14, 2023, the trial court held a bench
trial on the Department’s termination claim. After the trial, the trial court signed a judgment
terminating K.T.’s parental rights to A.F.T., D.M.P.H., and E.C.T. on two statutory grounds: (1)
constructive abandonment, pursuant to section 161.001(b)(1)(N) of the Texas Family Code, and
(2) failure to comply with the provisions of a court-ordered service plan, pursuant to section
161.001(b)(1)(O). The trial court also found that termination of K.T.’s parental rights was in the
children’s best interest. K.T. appealed.
STANDARDS OF REVIEW
When reviewing the legal sufficiency of the evidence, we look “at all the evidence in the
light most favorable to the 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.O.A., 283 S.W.3d 336, 344
(Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). When reviewing the factual
sufficiency of the evidence, we consider disputed or conflicting evidence. Id. at 345. “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. (quoting In re J.F.C., 96
S.W.3d at 266). Under these standards, the factfinder is the sole judge of the weight and credibility
of the evidence. Id. at 346.
CONSTRUCTIVE ABANDONMENT
One of the statutory grounds contained in the termination judgment is constructive
abandonment. To prove constructive abandonment, the Department must prove that the children
have been in its custody for at least six months and: (1) the Department made reasonable efforts to
return the child to the parent; (2) the parent has not regularly visited or maintained significant
contact with the child; and (3) the parent has demonstrated an inability to provide the child with a
-2- 04-23-00804-CV
safe environment. See TEX. FAM. CODE § 161.001(b)(1)(N). Before the trial court may terminate
parental rights on constructive abandonment grounds, each of subsection (N)’s three elements must
be proven by clear and convincing evidence. In re A.L.H., 468 S.W.3d 738, 744 (Tex. App.—
Houston [14th Dist.] 2015, no pet.). “The first element focuses on the Department’s conduct; the
second and third elements focus on the parent’s conduct.” Id.
“Implementation of a family service plan by the Department is considered a reasonable
effort to return a child to its parent if the parent has been given a reasonable opportunity to comply
with the terms of the plan.” In re A.Q.W., 395 S.W.3d 285, 289 (Tex. App.—San Antonio 2013,
no pet.), overruled on other grounds by In re J.M.T., 617 S.W.3d 604, 611 (Tex. App.—San
Antonio 2020, no pet.). In evaluating the Department’s efforts to return children to a parent, “the
question is whether the Department made reasonable efforts, not ideal efforts.” In re F.E.N., 542
S.W.3d 752, 767 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
Here, the record contains the following evidence concerning the preparation and
implementation of a service plan. In her testimony, K.T. acknowledged that the Department had
prepared a service plan for her at the beginning of the case, which she signed on May 31, 2022.
K.T. noted that by the time of trial she had completed some of the services in the service plan. K.T.
also confirmed that she had met with a Department caseworker and talked with her about parts of
the service plan.
A Department caseworker, Jennifer Henry, testified that the service plan required K.T. to:
(1) complete parenting classes, (2) stabilize her living and financial situation, (3) complete a drug
abuse assessment, (4) engage in drug testing, (5) complete a psychological evaluation and follow
all recommendations made in the evaluation, (6) build an appropriate support system, and (7) join
an online autism support group because one of the children was believed to be autistic. Henry
acknowledged that K.T had completed some but not all services in the service plan by the time of
-3- 04-23-00804-CV
trial. According to Henry’s testimony, she and K.T. had met and talked about the service plan,
including K.T.’s employment status, her housing situation, and K.T.’s visits with the children.
Henry also testified that the Department had provided K.T. with a referral to a counselor.
Furthermore, the evidence showed that Henry had talked to K.T. about building a support
system. According to K.T.’s testimony, she had told Henry that she did not have a support system
and that the only adult who could provide support for her was an uncle who lived out of state.
According to Henry’s testimony, she and K.T. had talked about whether the father of K.T.’s new
baby 1 might be able to provide her with emotional or financial support, but K.T. “couldn’t give a
set answer” to Henry’s question.
In arguing the evidence is legally and factually insufficient to support the constructive
abandonment ground for termination, K.T. challenges a single element of this ground—whether
the Department made reasonable efforts to return the children to the parent. Specifically, K.T.
asserts that the evidence is insufficient to support a finding that she had a reasonable opportunity
to complete her service plan not because she did not have ample time to complete the services, but
because of her purported limited cognitive function. In her brief, K.T. asserts that the trial court
appointed a guardian ad litem for her because of her limited cognitive function, but the trial court’s
order, signed on May 9, 2022, does not reveal the reason for the guardian ad litem’s appointment.
Furthermore, the only evidence concerning K.T.’s cognitive function was provided by Henry, who
testified: “The psychological [evaluation] stated that there were concerns of [K.T.’s] limitations of
cognitive functioning, and that she needed support to help her with her ability to stay financially
stable, and to have a stable living arrangement.”
1 K.T. was pregnant at the time of trial.
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The main case K.T. cites in support of her argument that she lacked a reasonable
opportunity to complete the service plan is In re A.Q.W., a parental termination case in which we
held that the evidence was legally insufficient to support a finding that the Department made
reasonable efforts to return the child to his father. 395 S.W.3d at 290. In In re A.Q.W., the evidence
showed that the father, who was incarcerated, received the family service plan only thirty-four
days prior to trial. Id. at 288. We concluded that “[t]he record contain[ed] no evidence that [the
father] was provided with a reasonable opportunity to enroll in, much less complete, any of the
requirements that he could have complied with while incarcerated.” Id. at 290. We, therefore, held
that the termination judgment could not be upheld based on the statutory ground of constructive
abandonment. Id.
The present case is readily distinguishable from In re A.Q.W. Here, the Department
prepared a service plan and made K.T. aware of its contents at the beginning of the case. In fact,
K.T., who was not incarcerated during the case, had more than a year to engage in the services
contained in the service plan. The Department communicated with K.T. while the case was
pending, and a Department caseworker worked with K.T. to implement parts of the service plan.
Furthermore, K.T. actually completed some of the services in the service plan, such as a drug
evaluation and parenting classes, prior to trial.
Again, K.T. does not challenge the sufficiency of the evidence to support any of the other
elements of constructive abandonment—only whether the evidence is sufficient to support a
finding that the Department made reasonable efforts to return the children to her. After reviewing
the evidence in the light most favorable to the trial court’s finding, we conclude a reasonable
factfinder could have formed a firm belief or conviction that the Department prepared and
implemented a family service plan for K.T., and that K.T. had a reasonable opportunity to comply
with the terms of that service plan. See In re J.F.C., 96 S.W.3d at 266. Moreover, we conclude the
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disputed evidence is not so significant that a reasonable factfinder could not have formed a firm
belief or conviction in favor of that finding. See In re J.O.A., 283 S.W.3d at 345. We hold that the
finding that the Department made reasonable efforts to return the children to K.T. is supported by
legally and factually sufficient evidence. Because the evidence is sufficient to support a finding
that the Department made reasonable efforts to return the children to K.T., and K.T. does not
challenge any of the other elements under subsection (N), the trial court’s termination judgment
may be supported based on the statutory ground of constructive abandonment.
Having determined that the evidence is legally and factually sufficient to support the trial
court’s termination judgment under section 161.001(b)(1)(N) of the Texas Family Code, we need
not address K.T.’s arguments concerning the legal and factual sufficiency of the evidence under
section 161.001(b)(1)(O) of the Texas Family Code. See In re A.V., 113 S.W.3d 355, 362 (Tex.
2003) (recognizing that only one predicate finding under section 161.001(b)(1) is necessary to
support a judgment of termination if there is also a finding that termination is in the children’s best
interest); In re D.J.R., No. 04-23-00568-CV, 2023 WL 8246666, at *7 (Tex. App.—San Antonio
Nov. 29, 2023, no pet. h.) (declining to reach complaint regarding the sufficiency of the evidence
to support termination based on subsection (O) grounds after holding the evidence was legally and
factually sufficient to support termination based on subsection (N) grounds).
CONCLUSION
The trial court’s termination judgment is affirmed.
Liza A. Rodriguez, Justice
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