NUMBER 13-11-00545-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF F.H.T., A CHILD
On appeal from the 135th District Court of Victoria County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Benavides Appellant, N.H. (“Mother”), appeals the trial court’s order which terminated her
parental rights over her daughter, F.H.T (“Daughter”).1 See TEX. FAM. CODE ANN. §
161.001 (West 2008). By one issue, Mother challenges the factual and legal sufficiency
1 In order to protect the minor children’s identities, we will use aliases to identify the parties and the children involved in this appeal. See TEX. R. APP. P. 9.8. of the evidence to support the termination of her parental rights. We affirm the trial
court’s judgment because clear and convincing evidence supports the termination of
Mother’s parental rights over Daughter and it is in the child’s best interest.
I. BACKGROUND2
From December 2006 until March 2010, Daughter was under the non-parent joint
managing conservatorship of K.K. (“Uncle”) and A.K. (“Aunt”) pursuant to an agreed final
order in a suit affecting the parent-child relationship. The agreed order stemmed from
prior action taken by the Texas Department of Family and Protective Services (“DFPS”)
shortly after Daughter’s birth to remove her from Mother’s care after it was discovered
that Daughter was an infant born with opiates in her system.3
On March 30, 2010, Uncle, Aunt, and their attorney met with DFPS officials to
notify them that they were experiencing difficulties in caring for Daughter. DFPS
supervisor Nicole Green testified that Uncle was concerned about jeopardizing his job for
missing so much time from work because he had to accompany Daughter to speech and
occupational therapy appointments. Uncle also discussed his failing health. Green
testified that Aunt also notified DFPS that she was dealing with her own medical issues
which made it difficult for her to care for Daughter. Uncle and Aunt sought alternative
placement for Daughter from DFPS. The next day, DFPS filed a motion for emergency
2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See TEX. R. APP. 47.4. 3 Daughter’s biological father did not appear at the underlying trial, where his parental rights were terminated, and is not a party to this appeal.
2 temporary orders over Daughter to place her in a foster home and also filed a petition to
terminate Mother and Father’s parental rights to Daughter. DFPS supervisor Nicole
Green testified that the urgency of the alternative placement was due to an opening at
one of the area foster homes. On April 9, 2010, an adversary hearing was held, see
TEX. FAM. CODE ANN. § 262.205 (West 2008), at which the trial court appointed DFPS as
Daughter’s temporary managing conservator. The trial court further ordered that
Mother, Daughter’s father, Uncle, and Aunt have limited access to and possession of
Daughter. Additionally, the trial court itemized several court-ordered services required
of Mother to obtain return of Daughter, including:
(1) psychological and psychiatric evaluation;
(2) counseling;
(3) parenting classes;
(4) drug and alcohol assessments and testing; and
(5) compliance with the service plan.
After months of Mother’s non-compliance with the temporary orders, DFPS
sought termination of Mother’s parental rights again. On March 28, 2011,4 a bench trial
on the merits commenced, and the trial court found that DFPS met its burden by clear
and convincing evidence to support termination of Mother’s parental rights. In its
termination order, the trial court found that Mother:
(1) constructively abandoned [Daughter] who ha[d] been in the [. . .] temporary managing conservatorship of [DFPS] for not less than six
4 On March 31, 2011, Uncle passed away. Accordingly, the trial court recessed the proceedings until June 2, 2011.
3 months, and: (i) [DFPS] has made reasonable efforts to return [Daughter] to [Mother]; (ii) [Mother] has not regularly visited or maintained significant contact with [Daughter]; and (iii) [Mother] has demonstrated an inability to provide [Daughter] with a safe environment, see TEX. FAM. CODE ANN. § 161.001(1)(N);
(2) failed to comply with the provisions of a court order that specifically established the actions necessary for [Mother] to obtain the return of [Daughter] who has been in the [. . .] temporary managing conservatorship of DFPS for not less than nine months as a result of [Daughter’s] removal from [Mother] under Chapter 262 for the abuse or neglect of the child, see id. § 161.001(1)(O) (West 2008);
(3) contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261, see id. § 161.001(1)(I); and
(4) DFPS has made reasonable efforts to return [Daughter] to [Mother].
The trial court also found that termination of parental rights was in Daughter’s best
interest. Mother appealed.
II. APPLICABLE LAW AND STANDARD OF REVIEW
Termination of a parent-child relationship may be ordered if a trial court finds by
clear and convincing evidence that the parent has acted or omitted conduct in violation of
one of the statutory grounds in section 161.001(1) and that termination is in the child’s
best interest. See TEX. FAM. CODE ANN. § 161.001; In re J.F.C., 96 S.W.3d 256, 261
(Tex. 2002) (noting the two-prong test in deciding parental termination, and that one act
or omission of conduct satisfies the first-prong); In re E.M.N., 221 S.W.3d 815, 820–21
(Tex. App.—Fort Worth 2007, no pet.).
We review challenges to the factual sufficiency of the evidence in a termination
proceeding by giving “due deference” to the fact-finder’s findings, and we do not
“supplant [its] judgment” with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)
4 (per curiam). We “inquire ‘whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the [ ] allegations’” from the
entire record. Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). When
conducting a legal sufficiency analysis in a parental-termination case:
[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. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency 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. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding.
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NUMBER 13-11-00545-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF F.H.T., A CHILD
On appeal from the 135th District Court of Victoria County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Benavides Appellant, N.H. (“Mother”), appeals the trial court’s order which terminated her
parental rights over her daughter, F.H.T (“Daughter”).1 See TEX. FAM. CODE ANN. §
161.001 (West 2008). By one issue, Mother challenges the factual and legal sufficiency
1 In order to protect the minor children’s identities, we will use aliases to identify the parties and the children involved in this appeal. See TEX. R. APP. P. 9.8. of the evidence to support the termination of her parental rights. We affirm the trial
court’s judgment because clear and convincing evidence supports the termination of
Mother’s parental rights over Daughter and it is in the child’s best interest.
I. BACKGROUND2
From December 2006 until March 2010, Daughter was under the non-parent joint
managing conservatorship of K.K. (“Uncle”) and A.K. (“Aunt”) pursuant to an agreed final
order in a suit affecting the parent-child relationship. The agreed order stemmed from
prior action taken by the Texas Department of Family and Protective Services (“DFPS”)
shortly after Daughter’s birth to remove her from Mother’s care after it was discovered
that Daughter was an infant born with opiates in her system.3
On March 30, 2010, Uncle, Aunt, and their attorney met with DFPS officials to
notify them that they were experiencing difficulties in caring for Daughter. DFPS
supervisor Nicole Green testified that Uncle was concerned about jeopardizing his job for
missing so much time from work because he had to accompany Daughter to speech and
occupational therapy appointments. Uncle also discussed his failing health. Green
testified that Aunt also notified DFPS that she was dealing with her own medical issues
which made it difficult for her to care for Daughter. Uncle and Aunt sought alternative
placement for Daughter from DFPS. The next day, DFPS filed a motion for emergency
2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See TEX. R. APP. 47.4. 3 Daughter’s biological father did not appear at the underlying trial, where his parental rights were terminated, and is not a party to this appeal.
2 temporary orders over Daughter to place her in a foster home and also filed a petition to
terminate Mother and Father’s parental rights to Daughter. DFPS supervisor Nicole
Green testified that the urgency of the alternative placement was due to an opening at
one of the area foster homes. On April 9, 2010, an adversary hearing was held, see
TEX. FAM. CODE ANN. § 262.205 (West 2008), at which the trial court appointed DFPS as
Daughter’s temporary managing conservator. The trial court further ordered that
Mother, Daughter’s father, Uncle, and Aunt have limited access to and possession of
Daughter. Additionally, the trial court itemized several court-ordered services required
of Mother to obtain return of Daughter, including:
(1) psychological and psychiatric evaluation;
(2) counseling;
(3) parenting classes;
(4) drug and alcohol assessments and testing; and
(5) compliance with the service plan.
After months of Mother’s non-compliance with the temporary orders, DFPS
sought termination of Mother’s parental rights again. On March 28, 2011,4 a bench trial
on the merits commenced, and the trial court found that DFPS met its burden by clear
and convincing evidence to support termination of Mother’s parental rights. In its
termination order, the trial court found that Mother:
(1) constructively abandoned [Daughter] who ha[d] been in the [. . .] temporary managing conservatorship of [DFPS] for not less than six
4 On March 31, 2011, Uncle passed away. Accordingly, the trial court recessed the proceedings until June 2, 2011.
3 months, and: (i) [DFPS] has made reasonable efforts to return [Daughter] to [Mother]; (ii) [Mother] has not regularly visited or maintained significant contact with [Daughter]; and (iii) [Mother] has demonstrated an inability to provide [Daughter] with a safe environment, see TEX. FAM. CODE ANN. § 161.001(1)(N);
(2) failed to comply with the provisions of a court order that specifically established the actions necessary for [Mother] to obtain the return of [Daughter] who has been in the [. . .] temporary managing conservatorship of DFPS for not less than nine months as a result of [Daughter’s] removal from [Mother] under Chapter 262 for the abuse or neglect of the child, see id. § 161.001(1)(O) (West 2008);
(3) contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261, see id. § 161.001(1)(I); and
(4) DFPS has made reasonable efforts to return [Daughter] to [Mother].
The trial court also found that termination of parental rights was in Daughter’s best
interest. Mother appealed.
II. APPLICABLE LAW AND STANDARD OF REVIEW
Termination of a parent-child relationship may be ordered if a trial court finds by
clear and convincing evidence that the parent has acted or omitted conduct in violation of
one of the statutory grounds in section 161.001(1) and that termination is in the child’s
best interest. See TEX. FAM. CODE ANN. § 161.001; In re J.F.C., 96 S.W.3d 256, 261
(Tex. 2002) (noting the two-prong test in deciding parental termination, and that one act
or omission of conduct satisfies the first-prong); In re E.M.N., 221 S.W.3d 815, 820–21
(Tex. App.—Fort Worth 2007, no pet.).
We review challenges to the factual sufficiency of the evidence in a termination
proceeding by giving “due deference” to the fact-finder’s findings, and we do not
“supplant [its] judgment” with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)
4 (per curiam). We “inquire ‘whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the [ ] allegations’” from the
entire record. Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). When
conducting a legal sufficiency analysis in a parental-termination case:
[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. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency 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. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.
In re J.F.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96
S.W.3d at 266).
III. ANALYSIS
In her sole issue on appeal, Mother challenges the sufficiency of the evidence to
sustain the trial court’s parental-termination order.
The trial court’s June 2010 family service plan, see TEX. FAM. CODE ANN. §
263.102 (West 2008), stated that Mother needed—among other things—to complete a
psychological evaluation, maintain contact with the caseworkers monthly, attend and
participate in counseling, and submit to random drug tests. By Mother’s own
5 admission, and confirmed by DFPS caseworker Dawn Bustamante’s testimony, Mother
was non-compliant with the service plan.
Mother argues that her failure to satisfy the court-ordered service plan, resulting in
termination of her parental rights, was unintentional due to her disability, medical issues,
and financial hardship. While we agree with Mother’s contention that parental rights are
of “constitutional dimensions” and should be “strictly scrutinized,” see Holick v. Smith,
685 S.W.2d 18, 20–21 (Tex. 1985), we disagree that Mother’s offered excuses justify
non-compliance with the court-ordered service plan. To the contrary, the family code
does not provide for or allow excuses for failure to comply with court-ordered services in
a termination case. See In re C.M.C., 273 S.W.3d 862, 875 (Tex. App.—Houston [14th
Dist.] 2008, no pet.); In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet.
denied); see also In re S.G., No. 02-11-00122-CV, 2011 WL 5527737, at *4 (Tex.
App.—Fort Worth 2011, no pet.) (mem. op.). Instead, any excuse for non-compliance
with a service plan is examined under the “best interest” prong of the termination
analysis. See TEX. FAM. CODE ANN. § 161.001(2); In re T.N.F., 205 S.W.3d at 631;
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (holding that one factor that a court
may consider in ascertaining a child’s best interest is the excuse for the acts or
omissions).
In addition to the excuse for the acts or omissions, other non-exhaustive factors a
court may consider when evaluating a child’s best interest include: (1) the emotional
and physical needs and dangers of the child now and in the future; (2) the parental
abilities of the individuals seeking custody; and (3) the acts or omissions of the parent
6 which may indicate that the existing parent-child relationship is not a proper one. See
Holley, 544 S.W.2d at 372.
Here, DFPS caseworker Bustamante testified that since March 2010, Mother did
not once visit Daughter, despite the child’s availability. Bustamante also testified that
Mother failed to comply with any service plan requirements due to her medical situation.
Additionally, Bustamante testified that terminating Mother’s parental rights was in
Daughter’s best interest because of the “struggle” that it would place on Daughter, who
was age six at the time.
Mother’s own testimony establishes her absence from Daughter’s life for at least
one year due to medical issues. Mother stated that she lived in a nursing home in
Wharton, Texas at the time of trial and that her source of income was a disability benefit
check, which helped pay for some of Daughter’s needs. Mother also testified that she
had visited with Daughter after Daughter was initially removed from her care, but when
asked for the most recent date of a visit, Mother could not remember. Mother blamed
Uncle and Aunt for preventing her from visiting with Daughter. Mother did recall that
visitation with Daughter took place between 2008 and 2009, which is prior to when these
proceedings were initiated in March 2010.
After giving the trial court’s fact findings “due deference,” our review of the record
shows that sufficient evidence would support a reasonable factfinder’s firm belief or
conviction that (1) Mother failed to comply with the court-ordered service plan, see TEX.
FAM. CODE ANN. § 161.001(1)(O); and (2) that the termination was in Daughter’s best
interest, considering the offered excuses for non-compliance of the service plan, the
7 living and physical conditions of Mother, and the emotional and physical needs of
Daughter now and in the future. See id. § 161.001(2); In re H.R.M., 209 S.W.3d at 108;
In re J.F.B., 180 S.W.3d at 573. Accordingly, Mother’s sole issue on appeal is
overruled.
IV. CONCLUSION
We affirm the trial court’s judgment.
__________________________ GINA M. BENAVIDES, Justice
Delivered and filed the 21st day of June, 2012.