in the Interest of A.M. and A.M., Children

Opinion

AFFIRMED and Opinion Filed August 30, 2021

In the Court of Appeals Fifth District of Texas at Dallas No. 05-21-00170-CV

IN THE INTEREST OF A.M. AND A.M., CHILDREN

On Appeal from the 354th District Court Hunt County, Texas Trial Court Cause No. 87085

MEMORANDUM OPINION Before Justices Myers, Osborne, and Carlyle Opinion by Justice Carlyle

Father appeals the trial court’s order terminating his parental rights to A.M.

and A.M. We affirm in this memorandum opinion. See TEX. R. APP. P. 47.4.

After Mother and Father separated, their children, A.M. and A.M., lived with

Mother. The Department began investigating Mother after it received reports of

abuse and neglect in Mother’s home. When Mother failed a court-ordered drug test,

the Department contacted Father and informed him it was removing the children

from Mother’s care. Rather than bringing the children to the Department as

instructed, Father withdrew the children from their school and tried to evade the

Department. The Department located and took custody of the children in March 2019, when Father tried to enroll them in a new school. After the removal, the

Department lost contact with Father, who became incarcerated in November 2019.

Based on concerns raised during its investigation, the Department sought to

terminate both Mother’s and Father’s parental rights.1 At Father’s trial, Department

caseworker Lee Ann Walston detailed her efforts to locate Father and engage him in

services aimed at reunification. She explained that Father did not cooperate and did

not maintain contact with either the Department or the children. She noted that

Father never visited the children while she was assigned to the case, and she opined

that, because Father was incarcerated, he could not provide a safe and stable

environment for them. Moreover, because he failed to maintain contact with the

Department or complete any services to alleviate its concerns, the Department had

no reason to think he could provide for the children. Ms. Walston believed

termination was in the children’s best interest.

Marsha Womack, a caseworker who took over the case from Ms. Walston,

also detailed her efforts to work with Father towards reunification. She testified that

she wrote Father monthly to update him about the children and explain the

Department’s plan for them, and she called him on several occasions. She sent Father

the service plan the Department created for him, which he acknowledges receiving

1 The trial court terminated Mother’s rights at a February 2020 hearing, but Mother is not a party to this appeal. –2– in July 2020, and she asked if there were any services he could complete while

incarcerated. She also investigated Father’s relatives for potential placements, but

she could not find a suitable candidate. She said that, while she was assigned to the

case, Father asked about the children only once, and he neither visited them nor

provided anything for them. Like Ms. Walston, Ms. Womack opined that Father

cannot provide a safe environment for the children because he is incarcerated and

because he has done nothing to alleviate the Department’s concerns about placing

the children in his care. Ms. Womack likewise believed termination was in the

children’s best interest.

CASA advocate Roxanne Turner testified that she has seen vast improvement

in the children since the beginning of the case. In opining that termination would be

in their best interest, she voiced concerns about allegations of physical abuse and

neglect by Father. She also testified that the children are anxious and afraid about

seeing Father again.

In his testimony, Father disputed the Department’s account of its interactions

with him. He said he tried to contact the Department many times, but nobody would

return his calls. He also said he visited the children once, but the Department cut the

visit short after the children became upset. He thus chose not to visit them again

because he did not want to traumatize them. He admitted using drugs after the

children were removed from his care, and he acknowledged he was serving time for

–3– criminal offenses for which he was arrested while the case was pending. He also

admitted he could offer neither a suitable caregiver nor a plan to provide for the

children during his incarceration. Father acknowledged he was accused of

disciplining the children by striking them with a coat-hanger, but he denied that

allegation.

At the conclusion of the trial, the court terminated Father’s parental rights on

the ground that he constructively abandoned the children. See TEX. FAM. CODE

§ 161.001(b)(1)(N). Father appeals, contending the evidence is legally and factually

insufficient to support the trial court’s findings under subsections (i) and (iii) of

family code section 161.001(b)(1)(N). See id.

A trial court may terminate the parent-child relationship only if it finds by

clear and convincing evidence that: (1) one or more of the statutory grounds for

termination enumerated in the Texas Family Code has been established; and (2)

termination is in the child’s best interest. Id. § 161.001(b). “Clear and convincing

evidence” is “the measure or degree of 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.

Our standards of review on appeal reflect the elevated burden of proof at trial.

In re A.B., 437 S.W.3d 498, 502 (Tex. 2014); In re A.T., 406 S.W.3d 365, 370 (Tex.

App.—Dallas 2013, pet. denied). Both legal- and factual-sufficiency reviews require

–4– us to review the evidence to determine whether the factfinder reasonably could have

formed a firm belief or conviction that the grounds for termination were established.

See In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002); In re L.E.H., No. 05-18-00903-

CV, 2018 WL 6839565, at *4 (Tex. App.—Dallas Dec. 31, 2018, no pet.) (mem. op.).

The difference between the two reviews lies primarily in the way we consider

evidence contrary to a finding. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).

Our review of legal sufficiency requires us to view all the evidence in the light

most favorable to the finding. Id. Thus, we assume the factfinder resolved all factual

issues in favor of the finding and disregard all disputed evidence to the contrary. Id.

at 630–31. Our review of factual sufficiency, in contrast, requires us to weigh the

disputed evidence contrary to the finding and determine whether, in light of the entire

record, the evidence that could not reasonably be credited in favor of the finding is

so significant that it would prevent the formation of a firm belief or conviction that

the finding is true. Id. at 631. In applying this standard, we must be mindful not to

scrutinize the evidence to the point where “the only factfindings that could withstand

review are those established beyond a reasonable doubt.” In re C.H., 89 S.W.3d 17,

26 (Tex. 2002).

To terminate parental rights under section 161.001(b)(1)(N), the court must

find that a child has been in the permanent or temporary managing conservatorship

of the Department for not less than six months, and: “(i) the Department made

–5– reasonable efforts to return the child to the parent; (ii) the parent has not regularly

visited or maintained significant contact with the child; and (iii) the parent has

demonstrated an inability to provide the child with a safe environment.”

THE EVIDENCE SUFFICIENTLY SUPPORTS THE TRIAL COURT’S FINDING THAT THE DEPARTMENT MADE REASONABLE EFFORTS TO RETURN THE CHILDREN

Father first contends the evidence does not show the Department made

reasonable efforts to return the children to him. See id. § 161.001(b)(1)(N)(i). On

this issue, it is important to note that “the question is whether the Department made

reasonable efforts, not ideal efforts.” In re X.A.S., No. 05-19-01082-CV, 2020 WL

1042520, at *3 (Tex. App.—Dallas Mar. 3, 2020, no pet.) (mem. op) (quoting In re

F.E.N., 542 S.W.3d 752, 766–67 (Tex. App.—Houston [14th Dist.] 2018, pet.

denied)).

Father argues the Department did not make reasonable efforts because it never

properly served him with the petition, noting there is no signed citation return in the

record. But Father admitted at trial that he was served in Smith County jail, and he

filed an answer in the case, which made service unnecessary. See TEX. R. CIV. P. 121;

Phillips v. Dallas Cty. Child Protective Servs. Unit, 197 S.W.3d 862, 865 (Tex.

App.—Dallas 2006, pet. denied). To the extent Father complains the Department

waited until July 2020 to serve him, the record supports a conclusion that Father

contributed to the lengthy delay by frustrating the Department’s efforts to locate him.

–6– In any event, the record demonstrates the Department’s reasonable efforts to

return the children. Ms. Walston testified she contacted Father in March 2019 to

schedule a meeting and tell him about pending court dates. Father skipped both the

scheduled appointment and the court hearings. Ms. Walston then created service and

visitation plans in May 2019, but she could not give them to Father because he

avoided her calls. In July or August 2019, after numerous unsuccessful attempts to

reach him, Ms. Walston contacted Father’s mother, who provided an alternative

phone number for reaching him. Ms. Walston left Father a voicemail at the new

number and tried to schedule a meeting when he finally returned her call in late

August, but the call got disconnected. After additional unsuccessful attempts to

contact Father, she assigned a special investigator to locate him in October 2019, but

she was never able to reach Father. Eventually, Ms. Walston learned about Father’s

incarceration, and she visited him at the Smith County jail in February 2020.

Ms. Womack testified she contacted Father at the jail several times after she

took over the case from Ms. Walston. She updated Father on the status of the case,

provided a copy of the service plan, asked whether there were any services he could

complete at the jail, and investigated relatives for potential placements. See

In re N.R.T., 338 S.W.3d 667, 674 (Tex. App.—Amarillo 2011, no pet.) (evidence

that the Department made a service plan and investigated placements with relatives

was sufficient to show reasonable efforts to return child to incarcerated parent); In

–7– re K.J.T.M., No. 06-09-00104-CV, 2010 WL 1664027, at *3–4 (Tex. App.—

Texarkana Apr. 26, 2010, no pet.) (mem. op.) (same).

Although Father disputes the Department’s version of events and testified that

the Department would not take his calls or return his messages, the trial court could

have found his testimony lacked credibility. See In re X.A.S., 2020 WL 1042520, at

*2 (“[W]e must defer to the factfinder’s determinations as to witness credibility.”).

Viewing the evidence in the light most favorable to the termination findings, we

conclude the trial court could have formed a firm belief or conviction that the

Department made reasonable efforts to return the children to Father.

THE EVIDENCE SUFFICIENTLY SUPPORTS THE TRIAL COURT’S FINDING THAT FATHER DEMONSTRATED AN INABILITY TO PROVIDE A SAFE ENVIRONMENT FOR THE CHILDREN

Father next contends the evidence does not show he demonstrated an inability

to provide a safe environment for the children. See TEX. FAM. CODE

§ 161.001(b)(1)(N)(iii). For this element, the family code provides a list of non-

exhaustive factors to consider, including as relevant here: (1) the child’s physical or

mental vulnerabilities; (2) the frequency and nature of the child’s out-of-home

placements; (3) whether the child is fearful of living in or returning to the parent’s

home; (4) whether the parent has a history of abusive or assaultive conduct; (5)

whether the parent has a history of substance abuse; (6) the parent’s willingness and

ability to seek out, accept, and complete counseling services and to cooperate with

and facilitate an appropriate agency’s close supervision; and (7) whether the parent

–8– demonstrates adequate parenting skills, including providing the child with

minimally adequate health and nutritional care, a safe physical home environment,

and an understanding of the child’s needs and capabilities. See id. § 263.307(b); In

re E.M., No. 05-18-01161-CV, 2019 WL 1449791, at *5 (Tex. App.—Dallas Apr. 1,

2019, no pet.) (mem. op.).

The record shows that, despite knowing the children were in the Department’s

care, Father chose not to maintain contact with them. He admitted he did not provide

any support for the children during the case, and he acknowledged he could not

arrange for an appropriate person to care for them during his incarceration. The

evidence also suggests Father failed to cooperate and maintain contact with the

Department, failed to provide the Department with information regarding his living

and employment circumstances, has a history of drug abuse, and engaged in criminal

activity while the case was pending, resulting in his incarceration. See In re D.P.G.,

No. 05-20-00652-CV, 2021 WL 2472717, at *9 (Tex. App.—Dallas June 17, 2021,

no pet. h.) (evidence sufficient where mother had history of drug abuse, failed to

maintain contact with the Department, failed to provide information about living or

employment circumstances, and failed to arrange for an appropriate person to care

for the child); In re L.L.M., No. 04-13-00351-CV, 2013 WL 5950151, at *3 (Tex.

App.—San Antonio Nov. 6, 2013, no pet.) (mem. op.) (noting that criminal activity

–9– and incarceration are relevant factors in determining whether a parent demonstrated

an inability to provide a safe environment).

Further, the record shows that one of the children has psychiatric issues for

which Father does not support the prescribed treatment, and both children have

behavioral issues that have improved while in the Department’s care. The children

have had several out-of-home placements, and there was testimony that the children

fear the prospect of returning to Father. Viewing the evidence in the light most

favorable to the termination findings, we conclude the trial court could have formed

a firm belief or conviction that Father demonstrated an inability to provide the

children with a safe environment.

We affirm the trial court’s judgment.

210170f.p05 /Cory L. Carlyle/ CORY L. CARLYLE JUSTICE

–10– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF A.M. AND On Appeal from the 354th Judicial A.M., CHILDREN District Court, Hunt County, Texas Trial Court Cause No. 87085. No. 05-21-00170-CV Opinion delivered by Justice Carlyle. Justices Myers and Osborne participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 30th day of August, 2021.

–11–