in the Interest of D.P.G., a Child

Opinion

Affirm in part; Reverse in part and Opinion Filed June 17, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00652-CV

IN THE INTEREST OF D.P.G., A CHILD

On Appeal from the 196th Judicial District Court Hunt County, Texas Trial Court Cause No. 87836

MEMORANDUM OPINION Before Justices Schenck, Molberg, and Nowell Opinion by Justice Nowell Mother and Father appeal the trial court’s order terminating their respective

parental rights to D.P.G. On December 9, 2020, a panel of this Court affirmed the

trial court’s order of termination as to Mother and reversed the order of termination

as to Father. Today we withdraw our December 9, 2020 opinion and vacate the

judgment of that date. After reviewing the record, we conclude the evidence is

legally and factually sufficient to support the trial court’s order of termination as to

Mother, and we affirm the trial court’s order of termination as to Mother. We

conclude the evidence is legally insufficient as to Father, and we reverse the order

of termination as to Father. JURISDICTION OVER MOTHER’S APPEAL

At the outset of this appeal, we questioned whether we had jurisdiction over

Mother’s appeal.1 As we requested, Mother filed a letter brief regarding jurisdiction,

and we must now determine whether we have jurisdiction over Mother’s appeal

before we can proceed. The following undisputed facts are germane to this

determination. The termination hearing concluded on May 6, 2020, with the trial

court finding Mother’s parental rights should be terminated. Mother was not present

at the hearing, but was represented by trial counsel. On May 14, the trial court

entered an Order Appointing Appellate Counsel in which it stated it found Mother’s

parental rights should be terminated and Mother is entitled to appellate counsel to

conduct the appeal; the order appointed Toby Wilkinson as that counsel. The trial

court did not send a copy of that order to Wilkinson, and there is no indication in the

record that the order was sent to Mother. It is uncontested that Wilkinson became

aware of his appointment only when he received an email from the official court

reporter on July 8, 2020, in connection with the filing of the reporter’s record with

this Court. He then discovered the trial court had entered its order of termination on

June 2. On July 9, he filed a formal notice of appeal and motion for extension of

time to file on behalf of Mother. Wilkinson concedes Mother’s motion for extension

of time was not timely filed but urges, given the lack of notice of his appointment,

1 Jurisdiction over Father’s appeal is not in question. –2– application of the rules governing accelerated appeals violates Mother’s due process

rights. Given the unique nature of this proceeding, the elevated interests involved,

and that the delay is entirely a product of state action, we conclude that it does.

In this case, the State, through the Texas Department of Family and Protective

Services (Department), sought to terminate Mother’s parental rights, and the judge,

also acting as an agent of the State, concluded that her rights should be terminated,

and appointed counsel to represent Mother on appeal. However, the court did not

notify the attorney charged with representing Mother’s interests on appeal of the

appointment. The attorney was, thus, not afforded any opportunity to timely file a

notice of appeal or a timely motion for extension of time to file the notice. See TEX.

R. APP. P. 28.4 (appeals in parental termination cases are governed by rules of

appellate procedure for accelerated appeals), 26.1(b) (notice of appeal in accelerated

appeal must be filed within 20 days after the judgment or order is signed).

A notice of appeal is to be filed in the trial court, not this Court. See TEX. R.

APP. P. 25.1(a). The notice of appeal apprises the trial court and the opposing party

that the party suffering an adverse judgment intends to appeal and sets the appellate

process in motion. See generally TEX. R. APP. P. 25.1, 31.1. In the context of

parental termination, subject to a statutory obligation to appoint counsel to pursue

an appeal, one might wonder what further purpose the separate notice from

appointed counsel achieves. While an order appointing counsel for a possible appeal

standing alone does not absolve counsel who has notice of his appointment of his –3– obligation to file the necessary notice of appeal, we would be inclined to find that,

when the trial court fails to give notice of the appointment to the very person charged

with timely filing it, the order of appointment has not served every legitimate interest

underlying the requirement of filing a notice of appeal. Accordingly, under the

circumstances presented here, it might be argued that the appointment either served

as the notice of appeal or that the failure to serve notice to counsel operated as a

functional denial of notice of the judgment to the party, implicating Texas Rule of

Civil Procedure 306a(4).2

Parental rights are “far more precious than any property right,” and when the

State initiates a termination proceeding, “it seeks not merely to infringe that

fundamental liberty interest, but to end it.” Santosky v. Kramer, 455 U.S. 745, 758–

59 (1982). The involuntary termination of parental rights involves fundamental

constitutional rights. See, e.g., Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In

re G.M., 596 S.W.2d 846 (Tex. 1980). As such, our constitution and statutes provide

for one level of appeal as a matter of right in termination cases. See In re T.V., 8

S.W.3d 448, 449 (Tex. App.—Waco 1999, no pet.). As we have previously noted,

the accelerated deadline to file a notice of appeal in parental termination cases is a

2 While a notice to a party of a judgment in an ordinary case suffices to trigger the relevant appellate periods, this is not an ordinary case. The State is engaged with a litigant whom it contends is manifestly unable to manage her affairs. In a typical case, we would fairly assume that litigants are communicating with their counsel to confirm timely management of deadlines and tracking developments in their cases. In this case, however, there is no indication Mother was notified of the appointment and, had she been notified, she would likely presume the lawyer was also notified and acting accordingly. –4– “trap for the unwary.” In re R.J.S., 219 S.W.3d 623, 627 (Tex. App.—Dallas 2007,

pet. denied). Because of the accelerated nature of these cases, trial courts must act

expeditiously when appointing new counsel for the appeal. In re J.O.A., 283 S.W.3d

336, 344 (Tex. 2009). In doing so, it is imperative that the court notify court

appointed counsel of the appointment. Failure to do so creates the risk, realized in

this case, that counsel will not have the ability under our rules to timely file the notice

of appeal. Worse still, where the parent is informed of the appointment, or even

where the parent is merely deemed to be on notice of it, the appointment order would

affirmatively discourage the parent from pursuing a timely pro se appeal or retaining

separate counsel.

While the Department, the parent, and the child all share an interest in a quick

and final decision, finality cannot trump a parent’s constitutional right to be heard,

including by appeal where the right to appeal exists. Stanley v. Illinois, 405 U.S.

645, 646 (1972); In re M.S., 115 S.W.3d 534, 548 (Tex. 2003); see also In re B.G.,

317 S.W.3d 250, 258 (Tex. 2010) (failure to file requisite statement of appellate

points could not, consistent with due process, form a basis for denying parent

appellate record and concluding family code section 263.405 was unconstitutional

as applied to parent); In re J.O.A., 283 S.W.3d at 339, 347 (despite parents’ failure

to file timely statement of appellate points, due process required they be allowed to

appeal; “section 263.405(i) is unconstitutional as applied when it precludes a parent

from raising a meritorious complaint about the insufficiency of the evidence –5– supporting the termination order”). We likewise conclude that application of the

rules concerning perfection of Mother’s appeal is unconstitutional as applied here.

To be clear, this case does not involve private litigants bungling deadlines in

a contest implicating their respective property rights. Here, the State sought to

terminate Mother’s parental rights and then obtained a judgment doing just that.

This case involves a fundamental liberty interest with heightened procedural

protections. Mother is indigent; thus, the trial court was required to (and did) appoint

counsel to represent her. See TEX. FAM. CODE. ANN. § 107.301(a)(1). The statutory

right to appointed counsel gives rise to constitutional considerations of due process

in the administration of that right. In re S.K.S., 236 S.W.3d 875, 891 (Tex. App.—

Texarkana 2007, pet. denied). And yet, the trial court, another State actor, failed to

give notice of the appointment of counsel. In effect, the trial court failed to provide

Mother with counsel, as mandated by statute, and foreclosed her right to appeal

within the rules. Accordingly, we conclude that section 263.405 of the family code

(acceleration of appeals of termination orders) and the appellate rules concerning the

perfection of appeals, as applied in this particular case with respect to Mother, are

unconstitutional and do not preclude this Court from considering Mother’s appeal.

See, e.g., In re E.R., 385 S.W.3d 552, 562, 567 (Tex. 2012) (due process prevails

over state law time limit).

–6– FACTUAL BACKGROUND

D.P.G. was born on August 9, 2019. He was removed from his parents’ care

shortly thereafter and placed into foster care based on a report that Mother had

abused methamphetamine and marijuana throughout her pregnancy. D.P.G. also

tested positive for amphetamines. Mother and Father met with a Department

caseworker on August 15, 2019, to discuss a possible family placement for D.P.G.

The maternal grandparents and a paternal aunt were identified as possible

placements, but neither could care for D.P.G. D.P.G. was placed in foster care.

On August 16, the Department filed an Original Petition for Protection of a

Child, for Conservatorship, and for Termination in Suit Affecting the Parent–Child

Relationship, seeking, among other things, to immediately be named the sole

managing conservator of D.P.G. Mother was served with the petition, but Father

was not.

Early in the case, the Department prepared a family service plan for Mother

to address the issues that led to D.P.G.’s removal and to move toward the goal of

reunification. Mother provided input about which services to include in the plan,

and she specifically believed she needed psychiatric services because she struggled

with mental health. The Department did not prepare a family service plan for Father.

The trial court held an adversary hearing on August 22. The appellate record

does not contain a transcript of that hearing. The temporary order entered following

the hearing indicates Mother and Father appeared at that hearing, both unrepresented

–7– by counsel. At that hearing, the trial court ordered Mother to (1) submit to drug and

alcohol dependency assessments, (2) participate in psychosocial evaluation and

counseling, (3) attend parenting classes, (4) submit to drug testing, (5) abstain from

using drugs, (6) attend Narcotics Anonymous/Alcoholics Anonymous (NA/AA)

meetings three times a week, (7) maintain stable housing and income, and (8) comply

with each requirement set out in the Department’s service plan, which included

attending Intensive Outpatient Program/Supportive Outpatient Program (IOP/SOP)

classes. According to testimony at trial, Father was offered services at the hearing

but stated he wanted to wait to begin services until genetic testing confirmed

paternity; Father was advised that waiting to start services could impact his ability

to get D.P.G. back or timely complete his services. The trial court subsequently

ordered Father undergo genetic testing to determine his parentage.

At the adversary hearing, the court ordered Mother and Father to complete

drug testing that day. Mother tested positive for methamphetamines and marijuana,

but Father did not complete testing. After the adversary hearing, Mother and Father

told the Department they were living in a motel.

A status hearing was conducted on October 15, 2019. The appellate record

does not contain a transcript of that hearing. Father appeared at that hearing without

counsel, and Mother did not appear. The order from the status hearing states

visitation for Mother and Father was suspended until each submitted two random

urine analyses separated by two weeks and those analyses were clean. –8– On January 9, 2020, the trial court held a permanency hearing, and a transcript

from the hearing is in the record. Mother was incarcerated and did not attend the

hearing. Father also was incarcerated but attended the hearing without counsel. The

Department did not know when Father would be released. The Department asked

the court to order the following services for Father: (1) complete a substance abuse

assessment, (2) attend NA/AA meetings, (3) attend IOP/SOP classes, (4) submit to

a psychosocial evaluation, and (5) attend counseling and parenting classes. The

court did so. However, at the hearing, a Department supervisor testified that Father

would not be able to complete many of those services while incarcerated. When

asked which services Father could complete, the supervisor did not know and stated

he would need to talk to his colleague so she could contact the facility and determine

which services were offered. The supervisor also testified the trial court previously

had not ordered services for Father because Father requested DNA testing.

At the hearing, the court instructed Father that his rights could be terminated

if he did not complete his services; Father acknowledged he understood. Father

stated he did not have any objection to the services being ordered. Father told the

trial court he planned to attend narcotics anonymous and take parenting and drug

classes through the Salvation Army after he was released. He stated he wanted the

trial court to know “I’ll do whatever it takes to get my son.”

–9– At the permanency hearing, the Department advised it was seeking to

terminate Mother’s and Father’s parental rights.3 Accordingly, the trial court

appointed trial counsel to represent Mother and Father individually.

On January 23, the trial court entered an order adjudicating Father as the

biological parent of D.P.G.

A bench trial took place by video conference on April 29 and May 6. Mother

and Father appeared solely through their trial counsel. The trial court heard

testimony from Amber Davidson (Department caseworker), Larry Barksdale

(Department supervisor), and Maria Yanez (Court Appointed Special Advocates

(CASA) advocate).

A. Testimony from Amber Davidson Davidson was the original caseworker assigned to this matter. She learned

that Mother has two children in addition to D.P.G, but neither lives with her.

Davidson initially tried to place D.P.G. with the maternal grandparents and a

paternal aunt, but they were unable to care for an infant. Davidson inquired whether

there were other relatives with whom D.P.G. could be placed, but no other names

were provided.

Davidson testified that, at the adversary hearing in August 2019, Mother and

Father told her they were living in a motel, and Father admitted to marijuana use.

3 Before this point, the record does not indicate Father was served or otherwise advised of any effort to terminate his rights. Rather, as noted, Father appeared interested in establishing paternity. –10– This is the only statement Father made to the Department about drug use. Father

was sent for drug testing twice. He did not appear the first time, but, in October

2019 when he was incarcerated, a hair follicle was collected for testing. The results

of the hair follicle test are not in the record. The Department considers the failure

to appear for a drug test to be a positive drug test. Davidson testified that Father did

not refuse to take any drug test that the Department requested while he was

incarcerated.

Davidson met Mother and Father on August 28. At that meeting, Mother

admitted she uses methamphetamine and marijuana and she struggled with addiction

throughout the last couple of years. Also in that meeting, Davidson gave Mother

and Father her contact information, including her phone number and email address.

Davidson met with Mother and Father during their sole visitation with D.P.G.

on September 3, 2019. Davidson recalled Mother and Father argued about whether

Father was D.P.G.’s biological father. Another visitation was scheduled for

September 23, but neither parent attended. According to Davidson, neither parent

made any attempt to see D.P.G. after September 3, and, during the pendency of the

case, they did not send any cards, letters, gifts, or anything else to indicate they

wanted to maintain a relationship with the child.

Davidson’s contact with Mother has been limited. At the beginning of the

case, Davidson was in contact with Mother via phone and text message, and she saw

Mother in person on September 3. Davidson last communicated with Mother on –11– September 12 when Mother texted her new apartment address and phone number.

Davidson believed Mother and Father lived in the apartment, and Davidson

attempted to see that apartment on September 17 and 24, but she was not able to

obtain access to the apartment. Davidson did not advise Mother and Father about

her plan to visit their apartment before doing so. Davidson texted Mother on

September 23 using the same phone number as Mother had used on September 12,

but Mother did not respond. Davidson did not attempt to contact Mother directly

again.

Thereafter, Davidson attempted to contact Mother through the maternal

grandmother without success. Davidson contacted the maternal grandmother in

October, November, and December 2019 attempting to obtain new contact

information for Mother, but she never obtained any contact information through the

grandmother. Davidson was not aware of any other family member from whom she

could try to obtain contact information to locate Mother.

Although the service plan was developed with Mother’s input and was filed

on October 2, 2019, Davidson did not provide a copy to Mother. Mother failed to

complete a drug and alcohol assessment, a psychosocial evaluation, individual

counseling, or the requisite parenting classes; did not attend any sessions for

NA/AA; did not participate in IOP/SOP classes; and did not maintain stable income

and housing. Mother completed the initial random drug testing but failed to submit

to subsequent testing. –12– At some points during the pendency of this case, Mother was incarcerated in

Dallas County and Hunt County, but Davidson did not attempt to see Mother while

she was incarcerated. Davidson did not investigate whether services were available

to Mother in either detention facility. Davidson believed Mother was released from

the Hunt County jail in March 2020, but, at the time of trial, Davidson had not had

contact with her and did not know where Mother was located. Davidson attempted

to look for Mother in jail even after Davidson believed Mother was released. If

Davidson had located Mother, she would have provided Mother’s location

information to Mother’s counsel and the court so Mother could participate in the

trial.

Father was incarcerated at the time of the January 9, 2020 permanency hearing

and indicated that he believed he would be released in a couple of weeks. On the

first day of trial, Davidson testified she thought Father had been released from

incarceration, but she did not know. At the time of trial, she did not know Father’s

location. Davidson looked for Father, including at the jail where she believed he

had been detained, but she could not locate him. She had not attempted to contact

Father since his release, and he had not contacted her. Davidson never told Father

he needed to contact her when he was released from incarceration. The last time

Davidson attempted to contact Father by calling his cell phone number was in

September 2019.

–13– Davidson confirmed the Department did not prepare a family service plan for

Father. Davidson was not aware of any signed order requiring Father to complete

the services the Department requested on January 9, 2020. Davidson did not believe

Father had worked any services since he was determined to be D.P.G.’s biological

father.

The Hunt County jail is a few blocks from Davidson’s office, but Davidson

did not contact the Hunt County jail to determine what services would be available

to Father. When asked why she did not do so, she responded: “There’s no reason I

did not - - I didn’t contact the jail to find out” if services were available. When

asked: “So a plan could have been prepared and it could have been reviewed with

[Father] and he could have signed and been given one [while incarcerated],”

Davidson confirmed that was correct.

Davidson testified D.P.G. was thriving in his foster placement. He was

developmentally on target and well bonded with the foster family. The foster parents

were interested in adopting D.P.G. Davidson expressed her belief that it was in the

best interest of D.P.G. to terminate Mother’s and Father’s parental rights because

they had not attempted to complete the court ordered services, did not have a stable

home, and could not take care of themselves.

B. Testimony of Larry Barksdale

Barksdale, a CPS supervisor, attended the permanency hearing on January 9,

2020, and he testified about the hearing at trial. Father attended the hearing wearing

–14– clothing provided by the Hunt County detention center. After the Department

provided the Court with results from the genetic testing showing Father was D.P.G.’s

biological father, the court ordered Father to complete various services. However,

no written order listing those services was provided to Father, and shackles

precluded him from taking notes at the hearing. Father did not request a copy of an

order from the Department.

At the January 9 hearing, Father indicated he believed he would be released

from jail in one to two weeks, but, at the time of trial, Barksdale did not know

whether Father had been released. Barksdale testified that if Father was released

one to two weeks later, Father would have had time to complete the services before

trial because Barksdale believed it is possible for a parent to complete services in a

90-day timeframe.

Barksdale testified at trial that the Department, in cooperation with a parent,

arranges the services, and the Department would not arrange services if the

Department was not in contact with the parent. Whether services are available while

a person is incarcerated is dependent upon the facility and availability of providers

at that facility. While some of the services Mother and Father were ordered to

complete could have been completed while incarcerated, Barksdale did not know

whether the Department arranged for those services for either of them while they

were incarcerated. The Department tailors the services to meet the needs of the

child, and not to meet the needs of the parent and, thus, does not consider whether –15– an incarcerated parent is able to complete the services. Barksdale initially testified

the Department does not have a different service plan for parents who are

incarcerated, but he later agreed the Department’s manual has a specific section

related to managing a situation when a parent is incarcerated and a service plan is

needed. Barksdale has worked for the Department for eleven years and has never

made a service plan or a recommendation for services for an incarcerated parent

pursuant to the Department’s policy.

Barksdale testified that parents are required to keep in contact with the

Department, and Mother and Father each failed to do so.

Barksdale was asked where D.P.G. would go if the court decided not to

terminate parental rights and instead ordered D.P.G. returned to either parent, and

he replied the Department did not know where the parents were located. “[I]t would

be next to impossible” to comply with that order.

C. Testimony of Maria Yanez

Yanez, a CASA volunteer, attempted to observe a visit between Mother and

D.P.G. at the end of September 2019, but Mother failed to attend. Yanez expressed

her belief Mother and Father cannot meet D.P.G.’s physical and emotional needs

due to their drug use. She received no indication that Mother and Father have a

stable home, and she was unable to find an address for them.

Yanez was able to observe D.P.G. with his foster family. Yanez described

D.P.G. as being a happy baby and indicated that he and the other children in the

–16– home were “engage[d] as a normal family.” Yanez confirmed that she had not

received any cards, letters, gifts, or anything that would indicate Mother and Father

wanted to continue a relationship with D.P.G. Like Davidson, Yanez expressed her

belief that it was in the best interest of D.P.G. to terminate Mother’s and Father’s

parental rights. She confirmed the foster parents are motivated to adopt D.P.G. and

stated the foster family members are the only faces D.P.G. has consistently seen

since his birth.

Yanez never had a conversation with Father, she had not been to his residence,

and she did not know where he lived. Yanez did not meet Mother.

D. Trial Court’s Findings

At the conclusion of the trial on the merits, the trial court found Mother and

Father had constructively abandoned D.P.G. Further, while the Department made

reasonable efforts to return the child to Mother and Father, Mother and Father had

not regularly visited or maintained significant contact with D.P.G., and Mother and

Father had demonstrated an inability to provide D.P.G. with a safe environment. See

TEX. FAM. CODE ANN. § 161.001(b)(1)(N). The court further found that termination

of the parent–child relationship between Mother and Father and D.P.G. to be in the

best interest of D.P.G. See id. § 161.001(b)(2). On June 2, 2020, the trial court

entered its order terminating Mother’s and Father’s parental rights to D.P.G. and

appointing the Department as Permanent Managing Conservator of D.P.G. This

appeal followed.

–17– LAW & ANALYSIS

Mother and Father appeal the trial court’s order terminating their respective

parental rights to D.P.G.4 They both challenge the legal and factual sufficiency of

the evidence to support the trial court’s finding they constructively abandoned

D.P.G. as the predicate ground for termination of their parental rights. See TEX.

FAM. CODE ANN. § 161.001(b)(1)(N). Mother and Father do not challenge the trial

court’s finding that termination of their parental rights is in the best interest of D.P.G.

The involuntary termination of parental rights involves fundamental

constitutional rights. In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). The Supreme

Court has stated that a natural parent’s desire for—and his right to—the

companionship, care, custody, and management of his child is an interest “far more

precious than any property right.” Santosky, 455 U.S. at 758–59. Termination of a

parent’s rights to a child is “traumatic, permanent, and irrevocable.” In re M.S., 115

S.W.3d 534, 549 (Tex. 2003). For these reasons, the Texas Family Code and the

Due Process Clause of the United States Constitution require that grounds for

termination of parental rights be proved by clear and convincing evidence. TEX.

FAM. CODE ANN. § 161.001; Santosky, 455 U.S. at 753–54. To apply the clear and

convincing evidence standard of proof in parental termination cases, we consider

whether the proof is such that a reasonable factfinder could have formed a firm belief

4 Mother and Father filed separate appeals.

–18– or conviction about the truth of the allegations. In re J.F.C., 96 S.W.3d 256, 263–

64 (Tex. 2002). We strictly construe involuntary termination statutes in favor of the

parent. In re E.R., 385 S.W.3d at 563.

The Texas Supreme Court has held that the heightened burden of proof in

parental termination cases gives rise to a concomitantly heightened standard of

appellate review. In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020) (citing In re N.G.,

577 S.W.3d 230, 235 (Tex. 2019)). Under the legal sufficiency standard of review

for a finding based on clear and convincing evidence, “a court should 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.”

Id. (quoting In re J.F.C., 96 S.W.3d at 266). Although “the trier of fact may draw

inferences,” those inferences must be “reasonable and logical ones.” Id. (quoting In

re E.N.C., 384 S.W.3d 796, 804 (Tex. 2012)). Under this standard of review,

“looking at the evidence in the light most favorable to the judgment means that a

reviewing court must assume that the factfinder resolved disputed facts in favor of

its finding if a reasonable factfinder could do so.” Id. (quoting In re J.F.C., 96

S.W.3d at 266). To that end, a reviewing court “should disregard all evidence that

a reasonable factfinder could have disbelieved or found to have been incredible.” Id.

(quoting In re J.F.C., 96 S.W.3d at 266). That “does not mean that a court must

disregard all evidence that does not support the finding,” as doing so “could skew

the analysis of whether there is clear and convincing evidence.” Id. (quoting In re –19– J.F.C., 96 S.W.3d at 266). If, after conducting this review, an appellate court

“determines that no reasonable factfinder could form a firm belief or conviction that

the matter that must be proven is true, then that court must conclude that the evidence

is legally insufficient.” Id. (quoting In re J.F.C., 96 S.W.3d at 266).

Factual sufficiency, in comparison, requires weighing disputed evidence

contrary to the finding against all the evidence favoring the finding. In re A.C., 560

S.W.3d 624, 631 (Tex. 2018). In a factual-sufficiency review, the appellate court

must consider whether disputed evidence is such that a reasonable factfinder could

not have resolved it in favor of the finding. Id. Evidence is factually insufficient if,

in light of the entire record, the disputed evidence a reasonable factfinder could not

have credited in favor of a finding is so significant that the factfinder could not have

formed a firm belief or conviction that the finding was true. Id.

For a trial court to terminate a parent’s right to his child, the State must prove

by clear and convincing evidence that the parent committed an act prohibited under

the family code’s section 161.001(b)(1) and that termination is in the child’s best

interest. TEX. FAM. CODE ANN. § 161.001(b)(1), (2). In this case, the trial court, as

the factfinder, concluded Mother and Father constructively abandoned D.P.G., a

predicate ground for termination under section 161.001(b)(1) of the family code.

See id. § 161.001(b)(1)(N). To establish constructive abandonment, the Department

had to prove the child has been in the permanent or temporary managing

conservatorship of the Department for not less than six months; and (i) the –20– 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. Id. The first element focuses on the Department’s conduct; the second

and third elements focus on the parent’s conduct. 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.).

A. Mother’s Appeal

Mother does not dispute that D.P.G. was in the Department’s care for more

than six months, the Department made reasonable efforts to return D.P.G. to her, and

she did not regularly visit or maintain significant contact with D.P.G. She challenges

the trial court’s finding concerning the final element only, that she demonstrated an

inability to provide D.P.G. with a safe environment. In doing so, Mother claims the

Department was required to conduct a social study of her home to determine whether

she could provide D.P.G. with a safe environment and the Department could have

conducted such a study because it always knew where Mother resided.

As an initial matter, we note the record establishes the Department frequently

did not know Mother’s whereabouts, and Mother failed to maintain contact with the

Department to make a home study possible. In addition, Mother fails to support her

argument that the Department had a duty to conduct a home study with any legal

authority and ignores the fact that the safe environment determination encompasses

a multitude of factors, several of which support the trial court’s finding she has

–21– demonstrated an inability to provide D.P.G. with a safe environment. See In re

N.A.V., No. 04-19-00646-CV, 2020 WL 1250830, at *6 (Tex. App.—San Antonio

Mar. 17, 2020, pet. denied) (mem. op.). Those factors include the child’s age and

physical and mental vulnerabilities; Mother’s willingness and ability to seek out,

accept, and complete counseling services and to cooperate with and facilitate an

appropriate agency’s close supervision; Mother’s willingness and ability to effect

positive environmental and personal changes within a reasonable period of time; and

whether Mother demonstrates adequate parenting skills. See In re M.R.J.M., 280

S.W.3d 494, 506 (Tex. App.—Fort Worth 2009, no pet.).

The trial court heard evidence D.P.G. came into the care of the Department

days after his birth due to allegations of substance abuse. Mother admitted having

used methamphetamine and marijuana throughout her pregnancy and she knew the

drugs were harmful to the child. At birth, D.P.G. tested positive for drugs. At the

time of trial, D.P.G. was less than a year old and in need of constant care and

attention. A service plan was put into place, with Mother’s input, for Mother to

foster reunification. Early in the case, Mother was ordered to complete drug and

alcohol assessments, to submit to a psychosocial evaluation and individual

counseling, to complete parenting classes, to attend NA/AA or Celebrate Recovery

three times a week, to maintain stable income and housing, and to submit to random

drug testing. Mother did not complete any of the required services, other than

submitting to the initial drug testing, which was positive for methamphetamine and –22– marijuana. After September 2019, Mother did not maintain contact with the

Department and did not provide the Department with information about her living

or employment circumstances. Mother also did not arrange for another appropriate

person to care for D.P.G.

Viewing the evidence in the light most favorable to the trial court’s finding,

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

Department proved Mother demonstrated an inability to provide D.P.G. with a safe

environment. See, e.g., In re G.P., 503 S.W.3d 531, 534 (Tex. App.—Waco 2016,

pet. denied) (evidence legally and factually sufficient to show mother’s failure to

provide safe environment where mother failed to provide Department with any

information about her living or employment circumstances, failed to make child

support payments, failed to seek out and accept counseling services, refused to take

required drug tests, and failed to even maintain contact with her child); In re J.J.O.,

131 S.W.3d 618, 630 (Tex. App.—Fort Worth 2004, no pet.) (evidence legally and

factually sufficient to show mother had demonstrated inability to provide her child

with safe environment when mother failed a drug test, attended only half of her

parenting classes, and did not complete a psychological evaluation or participate in

counseling). Likewise, considering all evidence in the record, we conclude the

evidence is such that a factfinder could reasonably form a firm conviction about the

truth of the allegations against Mother. See In re G.P., 503 S.W.3d at 534; In re

J.J.O., 131 S.W.3d at 630. Because the evidence is legally and factually sufficient –23– to support the trial court’s finding on Mother’s inability to provide a safe

environment for D.P.G., we overrule Mother’s sole issue.

B. Father’s Appeal Father also does not dispute that D.P.G. was in the Department’s care for more

than six months, and he did not regularly visit or maintain significant contact with

D.P.G. Father argues the evidence is legally and factually insufficient to support the

trial court’s findings that the Department made reasonable efforts to return D.P.G.

to him, and he demonstrated an inability to provide D.P.G. with a safe environment.

Because we conclude the evidence is legally insufficient to show the Department

made reasonable efforts to return D.P.G. to Father, we do not consider whether

Father demonstrated an inability to provide D.P.G. with a safe environment. See

TEX. R. APP. P. 47.1.

When considering whether the Department made reasonable efforts to return

the child to the parent, we focus on the Department’s conduct rather than the parent’s

conduct, and the relevant inquiry is whether the Department made reasonable efforts,

not ideal efforts. In re X.A.S., 2020 WL 1042520, at *3 (citing In re F.E.N., 542

S.W.3d 752, 766–67 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)).

“Returning the child to the parent, per section 161.001(1)(N)(i), does not necessarily

mean that the child has to be physically delivered” to the parent. In re F.L.B., No.

13-19-00319-CV, 2019 WL 6606159, at *7 (Tex. App.—Corpus Christi-Edinburg

–24– Dec. 5, 2019, no pet.) (mem. op.) (quoting In re D.S.A., 113 S.W.3d 567, 573 (Tex.

App.—Amarillo 2003, no pet.)).

Generally, the Department’s implementation of a family services plan is

considered a reasonable effort to return a child to the parent if the parent has been

given a reasonable opportunity to comply with the terms of the plan. In re X.A.S.,

2020 WL 1042520, at *3 (citing In re A.L.H., 468 S.W.3d 738, 744 (Tex. App.—

Houston [14th Dist.] 2015, no pet.)). In this case, the Department did not prepare a

family service plan for Father, presumably because his paternity was not established

until January 2020. But this does not end our inquiry; we next consider whether the

record reflects the Department made reasonable efforts to return D.P.G. in spite of

the absence of a family service plan. See In re F.E.N., 542 S.W.3d at 766.

The undisputed evidence shows the Department tried to return D.P.G. by

placing him with relatives. The Department was unsuccessful in its effort because

the relatives declined to take the baby, and the names of additional relatives were

not provided. See In 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.) (considering

Department’s futile efforts to place child with relatives when determining whether

Department made reasonable efforts under subsection (N)). The Department made

D.P.G. available for visitation on September 3 and 23, but Father attended only on

September 3. The Department offered services to Father at the adversary hearing,

but Father refused to complete them until paternity was determined. Davidson –25– provided her contact information to Father but did not inform Father that he needed

to contact her when he was released from incarceration. Davidson testified she made

some effort to determine whether Father remained incarcerated after January 2020.5

Davidson testified the last time she attempted to contact Father was in

September 2019; she did not contact Father’s family in an attempt to obtain

information about Father. Davidson did not attempt to communicate with or visit

Father while he was incarcerated, despite knowing he was in the Hunt County jail,

which was only a few blocks from her office.

The Department knew Father was incarcerated when the trial court ordered

services for him on January 9, 2020, because he was wearing clothing provided by

the Hunt County detention center and he was shackled at the hearing. Barksdale

testified he did not know which services Father could complete while incarcerated,

but he would ask Davidson to contact the facility and determine what was offered.

However, the Department did not contact the Hunt County jail to determine what

services, if any, were available to Father while he was incarcerated. Further, the

Department did not attempt to implement its own policies related to incarcerated

parents.

5 Although the evidence shows Mother provided an apartment address to Davidson and Davidson made unscheduled visits on September 17 and 24, 2019, the record does not indicate whether Father also lived in this apartment. Some evidence shows Mother and Father were not living together in September 2019. Davidson testified she did not attempt to visit Father at any other address, including an address she believed was current on August 26, 2019. –26– Additionally, although the Department knew Father was shackled at the

permanency hearing and could not write down the court-ordered services himself,

the Department made no effort to provide a list of those services to Father. The

record does not reflect whether Father understood the services assigned to him. See

In re D.G., No. 02-17-00332-CV, 2018 WL 547787, at *2 (Tex. App.—Fort Worth

Jan. 25, 2018, no pet.) (mem. op.) (trial court’s order incorporating service plan did

not show Father reviewed, understood, or signed the service plan).

Trial began approximately ninety days after the trial court signed the

adjudication of parentage on January 23, 2020, and no evidence was presented at

trial as to whether Father was incarcerated between January 23 and April 29, 2020

when trial began. During that time, the Department made no efforts to contact

Father, provide a list of the services ordered by the trial court, or help him find places

to complete the services after his release. See In re A.Q.W., 395 S.W.3d 285, 290

(Tex. App.—San Antonio 2013, no pet.) (evidence of reasonable efforts insufficient

where the “record contains no evidence that appellant was provided with a

reasonable opportunity to enroll in, much less complete, any of the requirements that

he could have complied with while incarcerated”), overruled on other grounds by In

re J.M.T., 617 S.W.3d 604 (Tex. App.—San Antonio 2020, no pet.). In so far as

Father did not perform any services before January 2020, “the Department cannot

use the failure of an alleged father . . . to voluntarily perform services prior to

adjudication [of paternity] to show it made a reasonable effort to return the child –27– under subsection N.” In re J.W., 615 S.W.3d 453, 473 (Tex. App.—Texarkana 2020,

no pet.).

We agree with the trial court that the Department made some efforts to return

D.P.G. to Father, including attempting to place D.P.G. with family members.

However, mindful of the elevated burdens in a parental termination case as well as

the heightened evidentiary standard, we conclude the trial court could not have

reasonably formed a firm conviction or belief that the Department put on clear and

convincing evidence that it made reasonable efforts to return D.P.G. to Father to

support the first element of constructive abandonment. See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(N)(i); see also In re M.A.S.L., No. 04-18-00496-CV, 2018 WL

6624405, at *4 (Tex. App.—San Antonio Dec. 19, 2018, no pet.) (mem. op.)

(evidence legally and factually insufficient to support finding under subsection (N)

because no caseworker met with Father to discuss service plan and no evidence

Father received the plan while incarcerated); In re D.G., 2018 WL 547787, at *5

(evidence legally insufficient to support finding under subsection (N) because

Department had no proof Father received a copy of services plan and did not know

whether he completed any services; although record shows caseworker offered to

help Father locate services at outset of case, record contained no evidence she

followed through or Department offered Father any services after he filed his

answer); In re D.N., 405 S.W.3d 863, 875 (Tex. App.—Amarillo 2013, no pet.)

(evidence legally insufficient to support finding under subsection (N) because no –28– evidence existed that Department made efforts to provide mother with services); In

re A.Q.W., 395 S.W.3d at 290 (evidence legally insufficient to support finding that

Department made reasonable efforts to return child to father where he did not receive

service plan until thirty-four days before termination trial); In re V.S.R.K., No. 02-

08-047-CV, 2009 WL 736751, at *9 (Tex. App.—Fort Worth Mar. 19, 2009, no pet.)

(mem. op.) (evidence legally insufficient to support finding under subsection (N)

where Department failed to make efforts to meet with incarcerated parent, even

when jail or prison is responsible). Because the evidence is insufficient to support

the first element of constructive abandonment, we conclude the evidence is legally

insufficient to support the trial court’s constructive-abandonment finding.

Having concluded the evidence is legally insufficient to support the trial

court’s constructive-abandonment finding, we need not address Father’s factual

sufficiency challenge to that finding. See TEX. R. APP. P. 47.1.

DEPARTMENT AS MANAGING CONSERVATOR

The Department requested conservatorship pursuant to family code section

153.131, and the trial court made the specific findings that the statute requires: that

appointment of Father as D.P.G.’s managing conservator would not be in his best

interest because it would significantly impair his physical health or emotional

development, and that appointment of the Department was in D.P.G.’s best interest.

TEX. FAM. CODE ANN. § 153.131. Father did not specifically appeal these findings

or the conservatorship order. Because appointment of the Department as managing

–29– conservator under section 153.131 is a basis for appointment separate and apart from

appointment solely as a consequence of a termination decree, separate challenges

are required on appeal. In re J.A.J., 243 S.W.3d 611, 613 (Tex. 2007). Accordingly,

we do not disturb the trial court’s order awarding the Department permanent

managing conservatorship.

CONCLUSION We affirm the trial court’s order terminating Mother’s parental rights to

D.P.G. Because we sustain Father’s legal-sufficiency challenge to the trial court’s

affirmative finding under predicate ground N, we reverse the final order as to that

finding and render judgment denying the Department’s request for termination of

Father’s parental rights.

/Erin A. Nowell// ERIN A. NOWELL 200652f.p05 JUSTICE

Schenck, J., concurring

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

IN THE INTEREST OF D.P.G., A On Appeal from the 196th Judicial CHILD District Court, Hunt County, Texas Trial Court Cause No. 87836. No. 05-20-00652-CV Opinion delivered by Justice Nowell. Justices Schenck and Molberg participating.

In accordance with this Court’s opinion of this date, we WITHDRAW this Court’s December 9, 2020 opinion, VACATE this Court’s December 9, 2020 judgment, and AFFIRM the trial court’s judgment in part and REVERSE the trial court’s judgment in part.

We AFFIRM the trial court’s order terminating Mother’s parental rights to D.P.G.

We REVERSE the trial court’s order terminating Father’s parental rights to D.P.G. and render judgment denying the Texas Department of Family and Protective Services’s request for termination of Father’s parental rights.

Judgment entered this 17th day of June 2021.

–31–