In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-19-00289-CV
IN THE INTEREST OF M.G. AND M.G., III, CHILDREN
On Appeal from the 320th District Court Potter County, Texas Trial Court No. 91,446-D-FM, Honorable Pamela C. Sirmon, Judge Presiding
February 7, 2020
MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
In this accelerated appeal, appellant, Father, seeks reversal of the trial court’s
judgment terminating his parental rights to M.G. and M.G. III.1 Father challenges the
sufficiency of the evidence to support the trial court’s findings under the predicate
grounds, and the finding that termination is in the best interest of the children. We affirm
the judgment of the trial court.
1 To protect the privacy of the parties involved, we refer to the father of the children as “Father” and to the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2018); TEX. R. APP. P. 9.8(b). The mother’s parental rights were also terminated in this proceeding. She has not appealed. Background
In February 2018, the Texas Department of Family and Protective Services
received a report alleging neglectful supervision and physical abuse of M.G. and M.G. III
by Father.2 The Department’s investigator found the home in a deplorable condition and
“not livable.” There was food and trash throughout the home. As a part of the
Department’s investigation, drug testing was performed, and Father tested positive for
methamphetamine and marijuana. The Department filed its petition for protection,
conservatorship, and termination of parental rights. Following an adversary hearing, the
Department was appointed temporary managing conservator, and M.G. and M.G. III were
placed in separate foster homes.
The Department scheduled a family group conference and sought Father’s input
on the creation of a family service plan. Father attended the conference and participated
in the creation of a family service plan. The caseworker reviewed the service plan with
Father after it was created and periodically reviewed it with him as he completed services.
The court-ordered service plan set out several tasks and services for Father to
complete before reunification with the children could occur. These tasks and services
included the following: complete a psychological evaluation and follow recommendations;
maintain regular contact with his caseworker; abstain from the use of illegal drugs; submit
to random drug screens; locate and maintain stable housing that is free from drugs and
2 Father was previously indicted for injury to a child, a state jail felony, for recklessly causing bodily injury to M.G. in August of 2012. Father pleaded guilty and received four years’ deferred adjudication community supervision. In January of 2015, Father’s deferred adjudication was revoked, he was adjudicated guilty of injury to a child, and he was sentenced to confinement for one year in the Texas Department of Criminal Justice.
2 violence; locate and maintain stable employment; complete a psychosocial assessment
and follow recommendations; attend individual counseling; take parenting classes;
participate in rational behavior therapy (RBT); complete the Battering Intervention and
Prevention Program (BIPP); and participate in a substance abuse assessment at
Outreach, Screening, Assessment, and Referral (OSAR) and follow recommendations.
The purpose of the family service plan was to work with Father to mitigate the reasons
for the removal of the children. The plan warned Father that if he was “unwilling or unable
to provide [M.G. and M.G. III] with a safe environment, [his] parental . . . rights may be
restricted or terminated or [M.G. and M.G. III] may not be returned” to him.
The trial court conducted a status hearing on May 17, 2018, and Father and his
counsel attended the hearing. Following the hearing, the trial court signed a status
hearing order, approving and adopting the Department’s service plan as an order of the
trial court. In the order, the trial court found that Father had reviewed, understood, and
signed the service plan.
Father satisfied the plan’s requirement that he maintain stable employment,
complete a psychosocial evaluation, participate in RBT, and attend a parenting class.
The Department caseworker scheduled an OSAR evaluation for Father three
times, but he failed to complete the evaluation. Father did not participate in individual
counseling or BIPP. Father admitted to his caseworker that he was continuing to use
drugs “because he’s coping with the stress of his children being removed.” He did not
consistently comply with the requirement to drug screen, but when he did submit to drug
screens, he tested positive for methamphetamine and marijuana.
3 In March of 2019, the caseworker visited Father at his home and discussed
appropriate living conditions for the children. The caseworker took photographs of the
home which showed a lack of cleanliness and the presence of what appeared to be
methamphetamine on a kitchen counter. According to the worker, two photographs
showed “little baggies on the glass—the piece of glass” and “crumbling white residue on
the glass piece.” The last time the caseworker visited Father’s home, Father said he had
to leave, and the worker “was just able to see inside the living room, the kitchen, just
glancing in for a moment.” The general condition of the home at that time remained
unchanged from her previous visits to the home. The caseworker stated she would have
concerns with returning the children to Father’s home because of the condition of the
home and the presence of drugs. In April 2019, Father’s visitation with the children was
discontinued by the judge because of high levels of drug usage on his drug screens.
The maternal grandmother testified that the children need “some normal,” but she
was not able to have the children live with her. She said it was in the best interest of the
children for the Department to find an adoptive home for both children together. The
caseworker testified that Father loved the children and that there is a bond between the
children and Father. The Department’s plan for the children was termination of parental
rights and adoption. The Department had located an adoptive placement so that both
children could live together. The children assisted the Department in choosing an
adoptive family. The children have met the prospective adoptive family and the children
are very happy. The prospective adoptive family is “very happy as well.”
On June 27, 2019, the associate judge held a final hearing concerning termination
of Father’s parental rights to M.G. and M.G. III. Father did not appear. After testimony,
4 the associate judge terminated Father’s parental rights on the grounds set forth in Texas
Family Code section 161.001(b)(1)(L) and (O), and found that termination would be in
M.G. and M.G. III’s best interest. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp.
2019).3 The court appointed the Department as the managing conservator of M.G. and
M.G. III.
On appeal, Father raises three issues challenging the trial court’s order of
termination of his parental rights.
Standard of Review
When reviewing the legal sufficiency of the evidence in a termination case, the
appellate court should look at all the evidence in the light most favorable to the trial court’s
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). To
give appropriate deference to the factfinder’s conclusions, we must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do
so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or
found to have been not credible, but we do not disregard undisputed facts. Id. Even
evidence that does more than raise surmise or suspicion is not sufficient unless that
evidence is capable of producing a firm belief or conviction that the allegation is true. In
re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency
review, we determine that no reasonable factfinder could have formed a firm belief or
3 Further references to provisions of the Texas Family Code will be by reference to “section__” or “§ __.” 5 conviction that the matter that must be proven was true, then the evidence is legally
insufficient and we must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).
In a factual sufficiency review, we must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96
S.W.3d at 266. We must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the Department’s allegations.
Id. We must also consider whether disputed evidence is such that a reasonable factfinder
could not have resolved the disputed evidence in favor of its finding. Id. If, in light of the
entire record, the disputed evidence that a reasonable factfinder could not have credited
in favor of the finding is so significant that a factfinder could not reasonably have formed
a firm belief or conviction, then the evidence is factually insufficient. Id.
Applicable Law
Involuntary termination of parental rights is a serious proceeding implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). A
parent’s right to the “companionship, care, custody, and management” of his or her child
is a constitutional interest “far more precious than any property right.” Santosky v.
Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re M.S.,
115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination
proceedings and strictly construe the involuntary termination statutes in favor of the
parent. Holick, 685 S.W.2d at 20. However, “the rights of natural parents are not
absolute” and “[t]he rights of parenthood are accorded only to those fit to accept the
accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re
J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may forfeit his or
6 her parental rights by his or her acts or omissions, the primary focus of a termination suit
is protection of the child’s best interest. In re T.G.R.-M., 404 S.W.3d 7, 12 (Tex. App.—
Houston [1st Dist.] 2013, no pet.).
In a case to terminate parental rights by the Department under section 161.001 of
the Family Code, the Department must establish, by clear and convincing evidence, that
(1) the parent committed one or more of the enumerated acts or omissions justifying
termination and (2) termination is in the best interest of the child. § 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.” § 101.007 (West 2019); In re J.F.C., 96 S.W.3d at 264. Both elements
must be established and termination may not be based solely on the best interest of the
child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet.
denied). “Only one predicate finding under section 161.001[(b)](1) is necessary to
support a judgment of termination when there is also a finding that termination is in the
child’s best interest.” In re A.V., 113 S.W.3d at 362. We will affirm the termination order
if the evidence is both legally and factually sufficient to support any alleged statutory
ground the trial court relied upon in terminating the parental rights if the evidence also
establishes that termination is in the child’s best interest. In re K.C.B., 280 S.W.3d at
894-95.
The clear and convincing evidence standard does not mean the evidence must
negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,
902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall
7 that the trier of fact has the authority to weigh the evidence, draw reasonable inferences
therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the
right to resolve credibility issues and conflicts within the evidence and may freely choose
to believe all, part, or none of the testimony espoused by any particular witness. Id.
Where conflicting evidence is present, the factfinder’s determination on such matters is
generally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso
1997, no writ).
The appellate court cannot weigh witness credibility issues that depend on
demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,
the appellate court must defer to the factfinder’s determinations, as long as those
determinations are not themselves unreasonable. Id.
Analysis
Conviction for Serious Injury to a Child Under § 161.001(b)(1)(L)
In his first issue, Father challenges the legal and factual sufficiency of the evidence
to support the termination of his parental rights under section 161.001(b)(1)(L). Parental
rights may be terminated under subparagraph L if the trial court finds that the parent has
“been convicted or has been placed on community supervision, including deferred
adjudication community supervision, for being criminally responsible for the death or
serious injury of a child under . . . [certain] sections of the Penal Code.” TEX. FAM. CODE
ANN. § 161.001(b)(1)(L); In re D.J.V., No. 14-15-00419-CV, 2015 Tex. App. LEXIS 10961,
at *6 (Tex. App.—Houston [14th Dist.] Oct. 27, 2015, no pet.) (mem. op.).
8 The Department offers no argument in response to this ground and relies solely
on subparagraph O as the statutory ground supporting termination. Because only one
statutory ground is required to support termination,4 we will evaluate the parties’
arguments pertaining to the legal and factual sufficiency of the evidence to support
termination under subparagraph O. In light of our ultimate conclusion, consideration of
Father’s first issue challenging termination under subparagraph L is pretermitted. TEX.
R. APP. P. 47.1.
Failure to Comply with Court-Ordered Service Plan Under § 161.001(b)(1)(O)
In his second issue, Father challenges the Department’s “failure to prove by clear
and convincing evidence each of the elements required to support a termination finding
under subsection (O).”
A trial court may terminate parental rights based on section 161.001(b)(1)(O) if the
Department establishes by clear and convincing evidence that the child was removed
under Chapter 262 because of abuse or neglect, the Department has been the permanent
or temporary managing conservator for at least nine months, a court order specifically
established the actions necessary for the parent to obtain the return of the child, and the
parent failed to comply with that order. § 161.001(b)(1)(O); In re J.F.C., 96 S.W.3d at
278-79. The Supreme Court has broadened the “abuse or neglect” elements to include
risks or threats of the environment in which the child is placed. In re E.C.R., 402 S.W.3d
239, 248 (Tex. 2013). In 2017, the Legislature amended section 161.001 and added
subsection (d), which provides that termination under subsection (b)(1)(O) is disallowed
4 In re A.V., 113 S.W.3d at 362. 9 if the parent proves, by a preponderance of the evidence, that the parent was unable to
comply with the specific provisions of the court order, and made a good faith effort to
comply but was unsuccessful through no fault of the parent. § 161.001(d). However, in
the absence of proof under subsection (d), we cannot consider “substantial compliance”
with a court-ordered family service plan to be the same as completion. In re C.R., No.
07-19-00009-CV, 2019 Tex. App. LEXIS 3082, at *9 (Tex. App.—Amarillo Apr. 16, 2019,
no pet.) (mem. op.).
This Court has held that, to support a termination order based on section
161.001(b)(1)(O), there must be a court order rather than simply a Department-generated
service plan. In re B.L.R.P., 269 S.W.3d 707, 710-11 (Tex. App.—Amarillo 2008, no pet.);
see also In re Z.B. & Z.B., No. 07-16-00026-CV, 2016 Tex. App. LEXIS 7420, at *13 (Tex.
App.—Amarillo July 12, 2016, no pet.) (mem. op.) (holding that failure of the appellate
record to contain a court order establishing the actions necessary for a parent to obtain
the return of his child defeats a termination order based on subsection (O)). A family
service plan that is signed by a parent alone does not satisfy the court-order requirement
of the statute until it has been specifically incorporated into a subsequently signed court
order. In re C.R., 2019 Tex. App. LEXIS 3082, at *14-15.
Section 161.001(b)(1)(O) makes clear that an order must be sufficiently specific to
warrant termination of parental rights for failure to comply with the order. In re N.G., 577
S.W.3d 230, 238 (Tex. 2019) (per curiam). On appeal, a court must consider whether the
order, and the service plan, if it was incorporated into the order, was sufficiently specific.
Id. A trial court order referenced by section 161.001(b)(1)(O) that establishes the actions
necessary for the parent to obtain return of a child in the Department’s custody is
10 sufficiently specific when the terms for compliance are set forth with certainty so that the
parent knows what duties and obligations have been imposed. Id. at 238.
A Department caseworker testified that the children were removed due to concerns
of the unsanitary conditions of the home and drug use by Father. During the Department’s
investigation, Father admitted to using methamphetamine and marijuana and drug testing
confirmed his drug use. The trial court entered an “order for protection of a child in an
emergency,” recognizing that the children had been removed and finding that there
existed a continuing danger to their physical health and safety. The Department was
appointed the temporary managing conservator of M.G. and M.G. III in March of 2018.
When the case was tried before the associate judge on June 27, 2019, M.G. and M.G. III
had been in the Department’s care for approximately fifteen months. This evidence
supports a finding of the first two elements required under subsection (O), that the children
were removed from a parent due to abuse or neglect and that the Department has been
the children’s temporary managing conservator for at least nine months.
The next two elements are whether there was a court-ordered service plan and
whether the parent complied with the provisions of the order. In this case, the temporary
order filed on April 3, 2018, ordered Father’s compliance “with each requirement set out
in the Department’s original, or any amended, service plan during the pendency of this
suit.” Father participated in the creation of his family service plan at the family group
conference. Additionally, Father and his attorney attended the status hearing on May 17,
2018, and the court made the following findings in its status hearing order:
2.1 The Court, having reviewed the pleadings, and considered all evidence and information required by law, including all service plans and court reports filed by the Department . . .
11 2.5 The Court, having reviewed the service plans filed by the Department, finds, except as specifically noted below, that the service plans are reasonable, accurate, and in compliance with the previous orders of the Court. 2.11 The Court finds that [Father] has reviewed the service plans. 2.12 The Court finds that [Father] has signed the plan. 4.1 IT IS ORDERED that, except as specifically modified by this order, the permanency plans and recommendations for the child, set out in the service plans filed with the Court, are approved and adopted by the Court as if set out verbatim in this order.
At the status hearing, the associate judge found that Father has reviewed the
service plan and signed the plan. The status hearing order “approved and adopted”
Father’s filed service plan “as if set out verbatim in this order.” At the final hearing, the
service plan was admitted into evidence as an exhibit. The service plan is the only service
plan in the record for Father. There is no record evidence to indicate that Father’s plan
of service was changed or modified. Consequently, we conclude that this evidence
supports the finding that the family service plan in this case was court-ordered.
In addition to evidence supporting that the family service plan was court-ordered,
the record evidence also supports a finding that the family service plan was sufficiently
specific to support termination. The family service plan incorporated into the trial court’s
order in May 2018 specifically stated the actions and responsibilities that are necessary
to achieve the plan goal during the period of the service plan.5 Regarding those tasks,
the caseworker testified that Father completed some of these services, but not all of them.
5The plan detailed a task/service required, a timeframe for accomplishing the task/service, and an address and contact information for service providers. 12 Father completed RBT, submitted to a psychosocial evaluation, maintained stable
employment, and attended one parenting class.
The caseworker also testified that Father has not maintained a drug-free lifestyle
or an appropriate home. The caseworker testified that Father has not consistently
complied with the requirement to drug screen and the drug screens he has taken have
been consistent with his admission of use of methamphetamine and marijuana.
Additionally, Father told the caseworker that he continued to use drugs during the case,
because “[h]e’s coping with the stress of his children being removed.” Less than three
months before trial, the home was “definitely not clean” and had food and trash
“everywhere.” Further, Father did not complete parenting classes, participate in individual
counseling, complete BIPP, or complete a substance abuse assessment by OSAR.
As to drug testing, the plan provided: [Father] will maintain a drug-free lifestyle and abstain from the use of illegal drugs or drugs for which he does not have a valid prescription. [Father] will submit to random drug tests (including saliva test, UAs, and hair follicle) as requested by the Department on the day requested and at the location requested. [Father] will test “negative” during these random tests— indicating non-use of illegal drugs or drugs for which he does not have a valid prescription. Failure to take the random drug test on the date requested will be considered as “positive” to the Department. It is also seen as failure to follow the court order or service plan. The Department will pay for the drug tests.
The plan then identified the name, address, and phone number of the site where drug
tests would be administered.
As to housing, the plan provided: [Father] will locate and maintain stable housing that has working utilities and is free from drugs and violence. [Father] will remove or lock up anything in the home that poses a risk of harm to his children. [Father] will establish daily routines and schedules, and learn to live a less chaotic lifestyle. [Father] will allow announced and unannounced home visits to his home. 13 As to parenting classes, the plan provided: [Father] will actively participate in and complete parenting classes. [Father] will participate in a class that teaches him parenting skills which are appropriate for the ages of children. [Father] will be responsible for attending two one-day classes if he does not take a ten week class. [Father] will exhibit proper parenting skills in all of his interactions with his children. [Father] will be responsible for any payments regarding his classes.
The plan then provided the name, address, and phone number of three local
organizations where parenting classes are offered.
As to individual counseling, the plan provided: [Father] will attend individual counseling with [a] therapist to address the issues related to his drug abuse, separation from his children, his criminal history and pending criminal charges, issues related to the removal of the children, and any addition[al] issues that arise during the sessions. [Father] will attend at least six (6) bi-weekly sessions of counseling or until released by the therapist. [Father] will follow any and all recommendations made by the therapist.
The plan then provided the name, address, and phone number of the counseling service.
As to completion of BIPP, the plan provided: [Father] will participate in and complete the Battering Intervention and Prevention Program (BIPP). [Father] will attend BIPP classes weekly until completing the program. He will provide a certificate to this worker no later than 10 days after the completion of classes. [Father] will demonstrate an understanding of the material presented and be able to apply it to his everyday interactions. [Father] will follow through with any and all recommendations made by the class instructor.
The plan then stated the name, address, and phone number of the BIPP provider.
As to the substance abuse assessment, the plan provided, “[Father] will participate
in and complete a substance abuse assessment with OSAR. Father will follow through
with any and all recommendations from OSAR.” The plan then provided the name and
address where OSAR would be administered.
14 Father does not assert that the order was vague or that he did not know where to
go or who to call to schedule classes or individual counseling. In fact, the evidence
indicates otherwise, as Father completed several services under the plan. While Father
indicated to the caseworker that, for services in general, he needed to maintain his job
rather than complete services, Father did not request an accommodation for his work
schedule. If he had done so, the Department has “multiple” therapists that it can utilize,
and some therapists are available as late as 8:00 p.m. to 9:00 p.m. The caseworker also
testified that Father had a work truck available for transportation. Moreover, Father
attended an OSAR assessment, but failed to return with information needed to complete
the assessment. This evidence suggests that the family service plan was sufficiently
specific to put Father on notice as to what tasks he was required to complete.
We conclude the trial court was presented with clear and convincing evidence
sufficient to support a finding that Father failed to comply with specific, itemized tasks,
which were contained within a court order, required to obtain the return of his children.
See In re N.G., 577 S.W.3d at 238. As such, Father’s second issue is overruled.6
Best Interest of the Children
In his third issue, Father challenges the legal and factual sufficiency of the
evidence supporting the best interest finding made under section 161.001(b)(2). A
determination of best interest necessitates a focus on the child, not the parent. See In re
B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts
6 Father did not expressly raise an issue under section 161.001(d), which provides exceptions to
termination of parental rights under section 161.001(b)(1)(O). See § 161.001(d). As such, we do not address section 161.001(d) in our analysis of this issue.
15 examine the entire record to decide what is in the best interest of the child. See In re
E.C.R., 402 S.W.3d at 250. There is a strong presumption that it is in the child’s best
interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006).
In assessing whether termination is in a child’s best interest, the courts are guided
by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
1976). These factors include: (1) the desires of the child, (2) the emotional and physical
needs of the child now and in the future, (3) the emotional and physical danger to the
child now and in the future, (4) the parental abilities of the individuals seeking custody,
(5) the programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking custody, (7)
the stability of the home or proposed placement, (8) the acts or omissions of the parent
that may indicate that the existing parent-child relationship is not proper, and (9) any
excuse for the acts or omissions of the parent. Id. “[T]he State need not prove all of the
factors as a condition precedent to parental termination, ‘particularly if the evidence were
undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,
95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory
grounds for termination may also constitute evidence illustrating that termination is in the
child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis
may consider circumstantial evidence, subjective factors, and the totality of the evidence
as well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,
no pet.). We must also bear in mind that a child’s need for permanence through the
establishment of a stable, permanent home has been recognized as the paramount 16 consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.
App.—Dallas 2007, no pet.).
The desires of the children
At the time of trial, M.G. was eleven years old and M.G. III was nine years old. The
caseworker testified that Father loved the children and that there is a bond between the
children and Father. There was also testimony that the children assisted the Department
in choosing an adoptive family and that the children are happy with the prospective
adoptive family. This factor weighs neither for nor against termination.
The emotional and physical needs of and danger to the children
The next two factors are the child’s emotional and physical needs now and in the
future, and the emotional and physical danger to the child now and in the future. The
need for permanence is a paramount consideration for a child’s present and future
physical and emotional needs. Edwards v. Tex. Dep’t of Protective & Regulatory Servs.,
946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ). A parent’s inability or
unwillingness to provide adequate care for his children, lack of parenting skills, and poor
judgment may be considered when looking at the children’s best interest. In re C.A.J.,
122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.). A parent’s ongoing drug
use is conduct that subjects children to a life of uncertainty and instability, which
endangers the physical and emotional well-being of the children. In re J.O.A., 283 S.W.3d
336, 346 (Tex. 2009).
Father dismissed concerns expressed by the Department caseworker about the
cleanliness of the home, and the physical condition of the home changed very little during
17 the Department’s involvement. Moreover, Father did not complete his plan of service and
his continued use of marijuana and methamphetamine pose a risk to M.G. and M.G. III’s
safety and stability. Less than three months before trial, the caseworker testified that
there was a substance she identified as methamphetamine on Father’s kitchen counter.
Father’s unwillingness or inability to maintain a drug-free home suggests that similar
conduct will occur in the future, thereby constituting evidence of emotional and physical
danger to the children now and in the future. In re D.L.N., 958 S.W.2d 934, 941 (Tex.
App.—Waco 1997, pet. denied). The trial court could have concluded that Father is
unable to meet the physical or emotional needs of M.G. and M.G. III and is unable to
protect the children from physical or emotional danger. These two factors weigh heavily
in favor of the trial court’s best interest determination.
Parenting ability and programs available to assist party seeking custody
The fourth and fifth factors will be discussed together. In reviewing the parenting
ability of the parent, a factfinder can consider the parent’s past neglect or past inability to
meet the physical and emotional needs of the child. In re G.N., 510 S.W.3d 134, 139
(Tex. App.—El Paso 2016, no pet.). “A parent’s drug use, inability to provide a stable
home, and failure to comply with his family service plan support a finding that termination
is in the best interest of a child.” In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort
Worth 2006, no pet.). The factfinder can infer from a parent’s failure to take the initiative
to avail himself of the programs offered to him by the Department that the parent “did not
have the ability to motivate [him]self to seek out available resources needed now or in the
future.” In re J.M., No. 01-14-00826-CV, 2015 Tex. App. LEXIS 2130, at *21 (Tex. App.—
18 Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem. op.) (citing In re W.E.C., 110 S.W.3d
231, 245 (Tex. App.—Fort Worth 2003, no pet.)).
Father did not testify at trial regarding his parenting abilities. However, the
Department introduced evidence concerning Father’s 2012 indictment for injury to a child.
The indictment alleged that Father struck M.G.’s face with a remote control and he
pleaded guilty and received deferred adjudication community supervision. While Father
completed some of his court-ordered services, he failed to complete a substance abuse
assessment, failed to abstain from the use of illegal drugs, and continued to live in an
unsafe home environment despite the Department’s intervention. Father’s failure to
complete these necessary services could have led the trial court to infer that Father did
not have the ability to motivate himself to seek out available resources now or in the
future. See id. at *21-22. The trial court was entitled to find that this evidence weighed
in favor of the best interest finding.
Plans for the children and stability of the home or placement
We will consider the sixth and seventh factors together. The sixth factor examines
the plans for the children by those individuals or the agency seeking custody. The
seventh factor is the stability of the home or proposed placement. Stability and
permanence are paramount in the upbringing of children. In re J.D., 436 S.W.3d 105,
120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may compare the
parent’s and the Department’s plans for the children and determine whether the plans
and expectations of each party are realistic or weak and ill-defined. Id. at 119-20.
Since Father did not appear at the final hearing, there is no evidence of his plans
for the children should the children be returned to his care. There is evidence that Father 19 is unable or unwilling to provide a safe, stable, and drug-free home environment suitable
for M.G. and M.G. III. Conduct that subjects children to a life of uncertainty and instability
also endangers the children’s physical and emotional well-being. In re M.R.J.M., 280
S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.).
The Department’s plan for the children was termination of parental rights and
adoption. The maternal grandmother testified that the children need “some normal,” and
it is in the best interest of the children for the Department to find an adoptive home for
both children together. The children assisted the Department in choosing an adoptive
family and the children have met the family. “[T]he children are very happy,” and the
prospective adoptive family is “very happy as well.”
The Department’s plan for the children would provide permanence and stability for
M.G. and M.G. III. This evidence supports the trial court finding that termination was in
the best interest of the children.
Acts and omissions of the parent
The eighth factor is the parent’s acts or omissions that may indicate that the
existing parent-child relationship is not a proper one. The record indicates Father pleaded
guilty to injury to a child in 2012 and that M.G. was the victim. Father admitted to using
methamphetamine and marijuana prior to the children’s removal and during the pendency
of this case. Father’s drug use was of such a magnitude that the judge discontinued his
visitation with the children two months before trial. Moreover, Father did not attend the
final hearing. The absence of a parent at the trial to terminate his parental rights is
prejudicial to the parent. In re J.D.S., 111 S.W.3d 324, 327 (Tex. App.—Texarkana 2003,
no pet.). Father was aware from the time that M.G. and M.G. III were taken into care by 20 the Department that his parental rights were in jeopardy and that he was required to
complete services offered by the Department in order to be reunited with the children.
Although the evidence showed that Father completed some of the service plan’s
requirements, the evidence showed that Father did not comply with the portion of his plan
designed to address the reasons the children were taken into care, including: Father’s
failure to maintain stable housing that is free from drugs, maintain a drug-free lifestyle
and submit to random drug screens, and participate in and complete a substance abuse
assessment.
In considering this evidence, the trial court could have found that the existing
parent-child relationship is not a proper one.
We conclude that the evidence is both legally and factually sufficient to establish
a firm conviction in the mind of the trial court that termination of Father’s parental rights
is in the best interest of M.G. and M.G. III. Issue three is overruled.
Conclusion
The judgment of the trial court terminating Father’s parental rights is affirmed.
Judy C. Parker Justice
Quinn, C.J., concurs in the result.