in the Interest of D.G.

Court of Appeals of Texas

in the Interest of D.G.

DecidedJanuary 25, 2018

Docket02-17-00332-CV

StatusPublished

This text of in the Interest of D.G. (in the Interest of D.G.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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in the Interest of D.G., (Tex. Ct. App. 2018).

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Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-17-00332-CV

IN THE INTEREST OF D.G.

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY TRIAL COURT NO. D2016241

MEMORANDUM OPINION1

I. INTRODUCTION

This is an ultra-accelerated appeal2 in which Appellant A.K. (Father)

appeals the termination of his parental rights to his son Douglas3 following a

1 See Tex. R. App. P. 47.4. 2 See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal from a judgment terminating parental rights, so far as reasonably possible, within 180 days after notice of appeal is filed). 3 We use aliases for all minors mentioned in the opinion. See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in an appeal from a judgment terminating parental rights). bench trial. In three issues, Father challenges the legal and factual sufficiency of

the evidence to support the trial court’s constructive-abandonment, failure-to-

comply-with-a-court-ordered-service-plan, and best-interest findings. See Tex.

Fam. Code Ann. § 161.001(b)(1)(N), (O), (2) (West Supp. 2017). Because we

must strictly construe these involuntary termination statutes in Father’s favor,

because Father was neither served with citation nor appointed counsel until three

months before the termination trial, because the Department of Family and

Protective Services never served Father with its service plan, because the

Department did not prove by clear and convincing evidence that it had made

reasonable efforts to return Douglas to Father, and because the trial court

terminated Father’s parental rights solely based on statutory grounds (N) and

(O)—the only two grounds the Department moved for termination on at trial4—

we are compelled to reverse the portion of the trial court’s judgment terminating

Father’s parental rights and render judgment denying the Department’s petition

to terminate Father’s parental rights. Father does not challenge the portion of the

trial court’s judgment naming the Department as permanent managing

conservator, and a challenge to that portion of the judgment is not subsumed

within Father’s challenges to the termination judgment, so we will affirm the

remainder of the trial court’s judgment as it pertains to conservatorship.

4 See In re S.M.R., 434 S.W.3d 576, 580–82 (Tex. 2014) (refusing to deem a ground pleaded by Department but not expressly found by trial court in its judgment).

2 II. FACTUAL AND PROCEDURAL BACKGROUND5

Father was adjudicated as Douglas’s father in a paternity suit in 2015. The

order from the paternity suit, which was consolidated with the underlying suit,

appointed Father and Mother as joint managing conservators and named Mother

as the parent with the right to designate Douglas’s primary residence.

A. Douglas’s Removal from Mother’s Home

The Department removed twenty-one-month-old Douglas and his seven-

week-old step-brother Robert from Mother and Step-Father’s home in late

September 2016 after learning that there was domestic violence and drug use in

the home and that Robert had a femur fracture and multiple rib fractures that

Cook Children’s CARE Team opined were consistent with physical abuse.

Father did not live in the home.

B. Proceedings Before the Trial Court Obtained Jurisdiction over Father

The Department filed a petition for conservatorship and for termination.

When the constable attempted to serve Father with citation in Hood County in

October 2016, she discovered that Father was no longer living at the address

that was on file.

5 At the conclusion of the termination trial, in addition to terminating Father’s parental rights, the trial court terminated Mother’s and Step-Father’s parental rights to their respective children based on the affidavits of relinquishment that they had signed. Although only Father appealed, we include references to Mother and Step-Father in the background as necessary to set forth the events that led to the termination of Father’s parental rights.

3 Despite that Father had not yet been served, the conservatorship worker

prepared a service plan for Father. Although Father’s service plan did not

contain language requiring him to maintain regular contact with the

conservatorship worker, the conservatorship worker’s November 2016 status

report reflects that

[Father] contacted the [conservatorship] worker by phone on 11/15/16, and provided [his] address . . . . [Father] stated that he wants to have a relationship with [Douglas] and is willing to cooperate in this case. [Father] reported that he is checking himself into an in-patient treatment facility for drug addiction[] and that he would have the facility contact the worker upon his admission. Worker sent [Father] a copy of the Family Plan Of Service via certified mail to the address [in Oklahoma that Father] provided on this date.

That service plan was returned to the Department unopened. The Department

was later notified by “12 & 12”—a residential treatment facility in Tulsa,

Oklahoma—that Father had entered their program on November 28, 2016, and

that Father was administratively discharged from 12 & 12 on January 3, 2017.

The trial court incorporated the service plan into its November 30, 2016

status-hearing order. The order does not state that Father reviewed, understood,

or signed the service plan.

After the case had been pending for nine months, the Department filed a

motion for substituted service of citation, which the trial court granted. The trial

court also appointed an attorney ad litem for Father, who filed an answer on June

28, 2017, and Father was “cited by posting” eight days later. Father did not

appear and was not represented by counsel at any hearings prior to June 28,

4 2017, including the full adversary hearing, the status hearing, and the initial

permanency hearing.

C. Proceedings After Father Answered

Father’s attorney ad litem first personally appeared on Father’s behalf at

the July 5, 2017 permanency hearing. The termination case then proceeded to

final trial on September 27, 2017.

D. The Trial

The conservatorship worker, who was the sole witness at the termination

trial, testified that she had spoken with Father by phone on several occasions

and had informed him that Douglas was in the Department’s care. The

conservatorship worker testified that she told Father over the phone that he was

expected to complete a service plan, that she went over each of the required

services with Father, that she offered to help Father locate services in Oklahoma

that would qualify for his service plan but explained that the Department could

not pay for services outside Texas, and that Father appeared to understand what

he was required to do. During the times the conservatorship worker spoke with

Father, sometimes he expressed a desire to relinquish his parental rights, and

other times he expressed a desire to work his services.

Although the conservatorship worker had not spoken with Father during

the eight months immediately preceding trial since Father had been released

from 12 & 12 in early January 2017, she did not believe that Father had complied

with the court-ordered service plan. The conservatorship worker further testified

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