in the Interest of B.H.Jr., a Child

• Court: Court of Appeals of Texas
• Decided: January 18, 2023
• Docket: 04-22-00490-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-22-00490-CV

IN THE INTEREST OF B.H., JR., a Child

From the 198th Judicial District Court, Bandera County, Texas Trial Court No. CVPC-XX-XXXXXXX Honorable Robert J. Falkenberg, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Lori I. Valenzuela, Justice

Delivered and Filed: January 18, 2023

AFFIRMED

This is an accelerated appeal from an order terminating appellant Barry’s parental rights to

his son, B.H., Jr. 1 Barry argues the evidence is legally and factually insufficient to support the trial

court’s grounds for termination. We affirm.

BACKGROUND

The Department of Family and Protective Services filed an original petition on July 16,

2021. In the petition, the Department sought appointment as B.H.’s temporary managing

conservator and termination of Barry’s parental rights.

1 To protect the identity of the minor child, we refer to appellant by a fictitious name and to the child by his initials. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8. 04-22-00490-CV

On July 8, 2022, the case proceeded to a bench trial, with evidence consisting of ten

exhibits and testimony from four witnesses. After hearing the evidence, the trial court found by

clear and convincing evidence Barry voluntarily left B.H. alone or in the possession of another

without providing adequate support for him, constructively abandoned B.H., and failed to comply

with the provisions of the court order specifically establishing the actions necessary for him to

secure B.H.’s return. See TEX. FAM. CODE §§ 161.001(b)(1)(C), (N) & (O). The trial court also

found by clear and convincing evidence terminating Barry’s parental rights was in B.H.’s best

interest. See id. § 161.001(b)(2). Based on its findings, the trial court terminated Barry’s parental

rights to B.H. and appointed the Department as the child’s permanent managing conservator. 2

Barry timely appealed the trial court’s order, challenging legal and factual sufficiency of

each of the grounds for termination.

STANDARD OF REVIEW

A parent-child relationship may be terminated, pursuant to section 161.001 of the Texas

Family Code, only if the trial court finds by clear and convincing evidence one of the predicate

grounds enumerated in subsection (b)(1) and termination is in a child’s best interest. Id.

§ 161.001(b). Clear and convincing evidence requires proof that will produce in the factfinder’s

mind “a firm belief or conviction as to the truth of the allegations sought to be established.” Id.

§ 101.007. To determine if this heightened burden of proof is met, we employ a heightened

standard of review by judging whether a “factfinder could reasonably form a firm belief or

conviction about the truth of the State’s allegations.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

This heightened standard “guards the constitutional interests implicated by termination, while

retaining the deference an appellate court must have for the factfinder’s role.” In re O.N.H., 401

2 B.H.’s mother agreed to sign an affidavit relinquishing her parental rights to B.H., see TEX. FAM. CODE § 161.001(b)(1)(K), and does not join Barry in this appeal.

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S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.). Under it, the factfinder is the sole judge

of the weight and credibility of the evidence, including the testimony of the witnesses. In re J.O.A.,

283 S.W.3d 336, 346 (Tex. 2009). We do not reweigh witness credibility issues, and we “defer to

the [factfinder’s] determinations, at least so long as those determinations are not themselves

unreasonable.’” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting Sw. Bell Tel. Co. v. Garza,

164 S.W.3d 607, 625 (Tex. 2004)).

“When reviewing the sufficiency of the evidence, we apply the well-established [legal and

factual sufficiency] standards.” In re J.M.G., 608 S.W.3d 51, 53 (Tex. App.—San Antonio 2020,

pet. denied) (alteration in original) (quoting In re B.T.K., No. 04-19-00587-CV, 2020 WL 908022,

at *2 (Tex. App.—San Antonio Feb. 26, 2020, no pet.) (mem. op.)). In our legal sufficiency review,

we must “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.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume the factfinder resolved disputed facts

in favor of its finding if a reasonable factfinder could do so, and we do not disregard undisputed

evidence even if it does not support the trial court’s finding. Id. In our factual sufficiency review,

we consider the entire record and determine whether, in light of the entire record, any disputed

evidence “is so significant that a factfinder could not reasonably have formed a firm belief or

conviction” on the challenged finding. Id.

SUFFICIENCY OF THE EVIDENCE SUPPORTING CONSTRUCTIVE ABANDONMENT

Subsection (N) provides a trial court may terminate the parent-child relationship if it finds

by clear and convincing evidence the parent has:

constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:

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(i) the department has made 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

Barry does not dispute (1) B.H. was in the Department’s temporary managing

conservatorship for six months or more, (2) he never visited or maintained any contact with B.H.,

and (3) he never demonstrated an ability to provide B.H. with a safe environment. Rather, he

argues the Department did not make reasonable efforts to return B.H. to him because there was no

evidence he was ever served with the family service plan.

In evaluating the Department’s efforts under subsection (i), “the question is whether the

Department made reasonable efforts, not ideal efforts.” In re N.A.V., No. 04-19-00646-CV, 2020

WL 1250830, at *7 (Tex. App.—San Antonio Mar. 17, 2020, pet. denied) (mem. op.) (quoting In

re F.E.N., 542 S.W.3d 752, 767 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)). Preparing

and implementing a family service plan is considered a reasonable effort by the Department “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 J.I.P., No. 04-20-00549-CV, 2021 WL 1269913, at *3 (Tex. App.—San

Antonio Apr. 7, 2021, no pet.) (mem. op.) (citing cases).

Turning to the evidence, Janelle Flechas—a CPS caseworker—testified she was assigned

to the case in August 2021—one month after removal. She testified Barry was contacted by the

Department before she was assigned to the case, but she could not testify as to what was discussed.

However, once she was assigned, she made numerous attempts to reach Barry by phone and email

but was unsuccessful. She also mailed the service plan to Barry, but it was returned to sender as

undeliverable. She testified she was finally able to speak with Barry over the phone and in person

during an unannounced visit on April 29, 2022. During the visit, Barry did not ask about B.H. and

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later acknowledged the child after Flechas showed him a picture. Flechas testified she discussed

the service plan with Barry during the visit and explained he was obligated to complete an

outreach, screening assessment, and referral for substance use; individual counseling; a

psychological evaluation; and parenting classes. She testified she did not bring a copy of the

service plan with her during her unannounced visit. However, she mailed the service plan to Barry

to the address where she arrived for this visit, and it was ultimately returned to sender. 3 Finally,

she testified Barry never performed any services, never visited B.H., never attended a hearing in

the case, and never provided B.H. with any economic support.

Barry testified he was served in person with the Department’s petition in July 2021 at the

residence where he has resided throughout the case. He testified someone at the Department then

called him to set up his service plan, parenting classes, and a “long list” of other services. Shortly

after the call, he changed his phone number without telling the Department. Barry testified, during

their April 2022 meeting, he and Flechas discussed the lengthy paperwork and classes he had to

complete. He further testified Flechas did not instruct him how to set up services. He conceded,

however, he was “pretty sure” he received the service plan, stating he kept Department paperwork

in a yellow folder and discussed the plan’s “basic guidelines” with B.H.’s mother and the

Department for forty-five minutes. He also testified he never contacted the Department to ask

about B.H., never called the telephone number listed on the back of the paperwork, never provided

B.H. any financial support, and never communicated with B.H. He further explained any mail sent

by Flechas may have been returned to sender because he used a post-office box address for his

mail, not his physical address, and he did not remember receiving the service plan via mail. Barry

3 Barry’s service plan was admitted without objection as Exhibit 5.

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also testified he was arrested on approximately May 25, 2022 for unspecified misdemeanors, had

been incarcerated since then, and believed he would be released in a little over a week.

Considering the evidence in the light most favorable to the trial court’s termination order,

we conclude a reasonable factfinder could have formed a firm belief or conviction termination of

Barry’s parental rights was valid under subsection (N) of section 161.001(b)(1) because the

Department made a reasonable effort to assist Barry in complying with the plan, and Barry’s failure

to do so was a result of his own unwillingness to perform the services to keep his parental rights

to B.H. See J.F.C., 96 S.W.3d at 266; see, e.g., J.I.P., 2021 WL 1269913, at *3 (concluding

reasonable factfinder could form firm conviction or belief appellant’s refusal to maintain contact

with Department and refusal to perform service plan constituted unwillingness to complete plan

as well as rejection of services offered in plan); In re J.S., No. 02-19-00231-CV, 2019 WL

5655254, at *5 (Tex. App.—Fort Worth Oct. 31, 2019, pet. denied) (mem. op.) (upholding trial

court’s finding of reasonable efforts where Department created service plan for mother and

attempted to locate her but could not, and when she finally made contact and set up meeting mother

was a no-show); In re Y.W., No. 04-17-00445-CV, 2017 WL 4801673, at *3 (Tex. App.—San

Antonio Oct. 25, 2017, pet. denied) (mem. op.) (concluding reasonable factfinder could have

formed firm belief or conviction Department made reasonable efforts despite not having contact

with parent after sixty-day hearing because caseworker mailed plan to parent, parent understood

plan and was told failure to comply meant termination, and reasonable factfinder could infer based

on parent’s failure to contact Department parent not interested in parenting child). Further, in view

of the entire record, we conclude the disputed evidence is not so significant as to prevent the trial

court from forming a firm belief or conviction termination of Barry’s parental rights was valid

under subsection (N) of section 161.001(b)(1). See J.F.C., 96 S.W.3d at 266.

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Accordingly, we hold the evidence is legally and factually sufficient to support the trial

court’s finding termination of Barry’s parental rights is warranted under subsection (N) of section

161.001(b)(1). See, e.g., J.I.P., 2021 WL 1269913, at *3; N.A.V., 2020 WL 1250830, at *7

(concluding court could have formed a firm belief or conviction reasonable efforts made, even

though new service plan not provided, where caseworker tried unsuccessfully to meet mother

multiple times to determine what services needed); In re G.T., No. 02-17-00279-CV, 2017 WL

6759036, at *4 (Tex. App.—Fort Worth Dec. 28, 2017, no pet.) (mem. op.) (holding evidence

showed reasonable fact finder could form firm conviction or belief mother did not understand

service plan and did not have access to services because she ran away—not because Department

failed to explain service plan or provide access to services); In re D.A., No. 02-09-00460-CV, 2010

WL 3618718, at *4 (Tex. App.—Fort Worth Sept. 16, 2010, no pet.) (mem. op.) (concluding

Department made all reasonable efforts where Department contacted father, made diligent search

to locate father, attempted to serve him at two different addresses, but did not know how to reach

father, and father did not take any action to visit or get custody of child, and disconnected his

phone). 4

Because legally and factually sufficient evidence supports the trial court’s constructive

abandonment finding, and a finding of only one ground for termination is necessary to support

termination, we need not consider whether the evidence would support termination on subsections

(C) and (O) grounds. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); see also TEX. R. APP. P.

47.1.

4 Barry also argues the Department did not make reasonable efforts because it did not consider placing B.H. with B.H.’s grandfather who lives in Oklahoma (but has property in Texas) instead of with fictive kin already fostering B.H.’s biological brother unrelated to Barry. Because we have already concluded the Department made reasonable efforts to return B.H. to Barry, we need not address this argument. See TEX. R. APP. P. 47.1.

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CONCLUSION

We affirm the trial court’s order.

Luz Elena D. Chapa, Justice

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