NO. 07-11-00349-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 29, 2012
IN THE INTEREST OF Y.G. AND Z.G., CHILDREN
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 78,668-E; HONORABLE DOUGLAS WOODBURN, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Ivan G., appeals the judgment of the trial court terminating his parental
rights to the children, Y.G. and Z.G.1 For the reasons stated below, we will affirm the
judgment of the trial court.
Background
On February 10, 2010, the Department of Family and Protective Services
received an intake alleging physical neglect of Y.G. and Z.G. The intake was based on
an observation that the children were dirty and covered with bug bites. John
1 Pursuant to Texas Rule of Appellate Procedure 9.8(b), appellant will be referred to as “Ivan” and the children will be referenced by their initials. The children’s mother, a nonparty to this appeal, will be referred to as “Keshia.” Schaumberg was assigned to investigate the case. Schaumberg was able to locate
Ivan at the city jail where he was incarcerated for traffic tickets. During an interview with
Schaumberg, Ivan admitted that he did not have a steady residence, that he smoked
marijuana, and that he had been required to register as a sex offender when he was a
juvenile but that he no longer had to register.
Because of a concern for the welfare of the children, the Department filed a
petition for orders in aid of investigation of a report of child abuse. On February 24, the
trial court issued orders which, inter alia, ordered Ivan, Keshia, and the children to
submit to a drug screen. Because Ivan and Keshia were uncooperative in allowing the
children to be drug tested, the Department removed the children on March 11. Upon
their removal, the children were drug tested. Y.G.’s drug test was negative for all illegal
drugs, while Z.G. tested positive for both cocaine and marijuana. On March 18, Ivan
and Keshia submitted to drug tests. Both tested positive for marijuana.
The Department developed a service plan to allow Ivan to obtain the return of the
children. The requirements of the service plan were incorporated into the trial court’s
Temporary Order Following Adversary Hearing. Additionally, by this order, the trial
court independently ordered Ivan to submit to drug tests when requested, participate in
a drug assessment, participate in counseling, participate in a psychological evaluation,
and participate in parenting classes. The service plan required Ivan to maintain stable
housing and to notify the Department if he moved, and also notified Ivan that a failure to
take a random drug test on the date requested would be considered a positive test.
2 Because Ivan failed to comply with the requirements of the service plan and the
trial court’s order, the case proceeded to trial on August 8, 2011. While evidence was
presented during the trial that Ivan had initiated many of the services required under the
service plan and the trial court’s order, he did not really begin making progress toward
accomplishing these requirements until the last few months before trial. By the time of
trial, Ivan had not completed the psychological evaluation, ACADA drug treatment
program, or counseling required by the service plan and order. In addition, Ivan had
only taken two of eight requested random drug tests. Finally, over the year and a half
that the Department was involved in this case before trial, Ivan had six different
addresses and failed to notify the Department of any of these new addresses. After
hearing the evidence, the trial court issued an order terminating Ivan’s parental rights to
Y.G. and Z.G. based on findings that Ivan had violated Texas Family Code section
161.001(1)(D),(E), (I), and (O), and that termination is in the children’s best interest.
See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2011).2 It is from this order of
termination that Ivan appeals.
Ivan presents six issues by his appeal. The first four issues challenge the legal
and factual sufficiency of the evidence supporting the trial court’s findings that Ivan
violated section 161.001(1)(D), (E), (I), and (O). By his fifth issue, Ivan challenges the
trial court’s findings of fact and conclusions of law as lacking sufficient specificity since
the trial court failed to identify the specific actions by which Ivan violated section
161.001(1). Finally, by his sixth issue, Ivan challenges the legal and factual sufficiency
2 Further reference to the Texas Family Code will be by reference to “section ___” or “§ ___.” 3 of the trial court’s determination that termination of Ivan’s parental rights is in the
children’s best interest.
Standard of Review in Termination Cases
The natural right existing between parents and their children is of constitutional
dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,
455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A decree terminating
this natural right is complete, final, irrevocable, and divests for all time that natural right
as well as all legal rights, privileges, duties, and powers between the parent and child
except for the child's right to inherit. Holick, 685 S.W.2d at 20. As such, we are
required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846
(Tex. 1980). However, parental rights are not absolute, and the emotional and physical
interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89
S.W.3d 17, 26 (Tex. 2002).
Due process requires the application of the clear and convincing standard of
proof in cases involving involuntary termination of parental rights. In re J.F.C., 96
S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing evidence’ means 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 2008).
This standard, which focuses on whether a reasonable jury could form a firm belief or
conviction, retains the deference a reviewing court must have for the factfinder’s role. In
re C.H., 89 S.W.3d at 26.
4 The law in Texas is that a court may order termination of parental rights if the
petitioner establishes one or more acts or omissions enumerated under subsection (1)
of section 161.001, and that termination of the parent-child relationship is in the best
interest of the child. § 161.001. Though evidence may be relevant to both elements,
each element must be proven, and proof of one does not relieve the burden of proving
the other. See In re C.H., 89 S.W.3d at 28; Holley v. Adams, 544 S.W.2d 367, 370
(Tex. 1976). While both a statutory violation and that termination is in the best interest
of the child must be proven, only one statutory ground is required to terminate parental
rights under section 161.001. In re N.R., 101 S.W.3d 771, 775 (Tex.App.—Texarkana
2003, no pet.) (citing In re S.F., 32 S.W.3d 318, 320 (Tex.App.--San Antonio 2000, no
pet.)). Therefore, we will affirm the termination order if there is legally and factually
sufficient evidence of any statutory violation and that termination of parental rights
would be in the best interest of the child. See id.
In reviewing the legal sufficiency of the evidence supporting an order terminating
parental rights, we 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 as to the truth of the allegations sought to be established. See § 101.007; In
re J.F.C., 96 S.W.3d at 266. “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.” In re J.F.C., 96 S.W.3d at 266. In other words, we will
5 disregard all evidence that a reasonable factfinder could have disbelieved or found to
have been incredible. Id.
The standard for reviewing the factual sufficiency of termination findings is
“whether the evidence is such that a factfinder could reasonably form a firm belief or
conviction about the truth of the [Department's] allegations.” In re C.H., 89 S.W.3d at
25. In conducting this review, we are directed to consider whether the disputed
evidence is such that a reasonable factfinder could not have resolved the disputed
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “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.
The Trial Court’s Findings
In addition to finding that termination of Ivan’s parental rights to Y.G. and Z.G. is
in the children’s best interest, the trial court also found that Ivan:
(1) Knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children;
(2) Engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well- being of the children;
(3) Contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261, Texas Family Code; and
(4) Failed to comply with the provisions of a court order that specifically established the actions necessary for the father to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a 6 result of the children’s removal from the parent under Chapter 262 for the abuse or neglect of the children. See § 161.001(1)(D), (E), (I), (O), (2).
Section 161.001(1)(O)
Section 161.001(1)(O) supports termination of parental rights when a parent fails
to comply with the provisions of a court order that specifically established the actions
necessary for the parent to obtain return of the child who has been in the permanent or
temporary managing conservatorship of the Department for at least nine months as a
result of the child’s removal for abuse or neglect. § 161.001(1)(O). Ivan does not
dispute that Y.G. and Z.G. were removed from his care because of abuse or neglect, or
that the Department was managing conservator of the children for the requisite nine-
month period. Ivan also admits that he did not complete the services that were required
under the service plan and the trial court’s order.3 Rather, Ivan contends that he “either
initiated, participated in, and/or completed all services” required by the service plan and
court order, or that he should be excused from failing to comply because of intervening
causes that prevented him from completing the services.
The trial court’s Temporary Order Following Adversary Hearing specifically
required Ivan to take certain actions to obtain the return of his children, including
counseling, psychological and/or psychological evaluation and treatment, parenting
classes, drug assessment, random drug testing, and compliance with the Department’s
3 The Department’s service plan was incorporated into the trial court’s Temporary Order Following Adversary Hearing and, thus, constitutes a court order that specifically establishes the actions necessary for Ivan to obtain return of Y.G. and Z.G. See § 161.001(1)(O). 7 service plan. The service plan required Ivan to, inter alia, maintain a drug-free lifestyle,
maintain stable housing and employment, and notify the Department of any change of
address within five days of the change. The service plan also specifically designated
Kaye Renshaw as the counselor and Dr. Kleinpeter as the psychologist that Ivan was to
work with under the trial court’s order.
In his brief, Ivan concedes that he did not comply with all of these requirements.
While Ivan did complete parenting classes, he admits that he changed housing on six
different occasions throughout the pendency of this case, had not completed drug
treatment through ACADA, had completed only three of eight counseling sessions with
Renshaw, and had not been treated psychologically. Ivan contends that these failures
to comply with the trial court’s order were excused due to circumstances beyond his
control or that he substantially complied with the service requirements.
Ivan contends that his having six different housing arrangements during the one
and a half year pendency of this suit cannot be considered inappropriate stability
because the Department moved the children on six occasions of their own during the
same period. Clearly, however, Ivan’s argument is comparing apples to oranges. The
service plan required Ivan to maintain stable housing, which he did not do. Notably,
Ivan does not attempt to explain why he had so many different housing arrangements
over such a short period of time.4 Further, the Department’s case worker testified that
Ivan failed to notify the Department of any of these changes of address.
4 By contrast, the Department provided evidence regarding why it was necessary for the Department to change the children’s placement.
8 Ivan contends that he participated in a drug abuse assessment through ACADA,
and that the assessment was all that was ordered by the trial court. While the trial
court’s order specifically ordered Ivan to have a drug assessment performed, the order
did incorporate the Department’s service plan. The service plan required Ivan to
complete an ACADA assessment and to “follow any and all recommendations made by
the assessment.” By his testimony, Ivan admitted that he had not completed his
program with ACADA. As such, Ivan did not comply with the service plan that was
incorporated into the trial court’s order.
As to the counseling requirement, Ivan contends that he initiated and completed
three counseling sessions before the counselor terminated further services. Ivan
explained that, due to transportation problems,5 he arrived at his counseling sessions
late, so Renshaw terminated further counseling services. However, the Department’s
case worker testified that Renshaw would not have terminated further counseling with
Ivan unless he failed to attend or was significantly late to two scheduled counseling
sessions. The case worker testified that Ivan did not attend any counseling sessions
with Renshaw and that it was his complete failure to participate in counseling that led to
Renshaw’s termination of counseling. Regardless, nothing in the record suggests that
Ivan contacted the Department in an effort to obtain a referral to counseling with another
counselor.
Ivan contends that he initiated and participated in his psychological evaluation
with Dr. Kleinpeter, but that he was prevented from completing these services due to
5 Evidence was presented that the Department offered to provide Ivan transportation, but that he refused such offer. 9 the death of Dr. Kleinpeter. Following Dr. Kleinpeter’s death, Ivan acknowledged that
the Department referred him to a Dr. Basham for evaluation and treatment. However,
Ivan failed to schedule or attend any sessions with Dr. Basham. On appeal, Ivan
contends that he is excused from the requirement that he see Dr. Basham because the
trial court’s order did not require Ivan to consult with Dr. Basham. However, the trial
court’s order requires Ivan to submit to an evaluation and treatment with “a licensed
psychologist and/or psychiatrist.” The evidence establishes that the Department
selected Dr. Basham to be this licensed psychologist and/or psychiatrist after the death
of Dr. Kleinpeter, and that Ivan was aware of such selection but that he failed to comply
with the trial court’s order.
Ivan appears to contend that his initiation of and participation in required services
is evidence of substantial compliance with the service plan and court order, and that
such action is enough to preclude the trial court from finding that Ivan violated section
161.001(1)(O). However, substantial compliance with the provisions of a court order is
not sufficient to avoid a finding under section 161.001(1)(O). In re D.S.C. V, No. 07-11-
0287-CV, 2011 Tex.App. LEXIS 9551, at *5 (Tex.App.—Amarillo Dec. 6, 2011, no pet.)
(mem. op.); In re C.M.C., 273 S.W.3d 862, 875 (Tex.App.—Houston [14th Dist.] 2008,
no pet.) (op. on reh’g); In re T.T., 228 S.W.3d 312, 319 (Tex.App.—Houston [14th Dist.]
2007, pet. denied).
In addition, Ivan contends that his lack of transportation and the death of Dr.
Kleinpeter excuse certain of his failures to comply with the trial court’s order. However,
we find these excuses to be insufficient to justify Ivan’s failure to comply with the
10 requirements of the trial court’s order. See In re D.S.C. V, 2011 Tex.App. LEXIS 9551,
at *5 (“The excuses offered by him are just that and do not prevent a finding that he did
not comply with the plan.”); In re C.M.C., 273 S.W.3d at 874-75 (section 161.001(1)(O)
does not make provision for excuses); In re T.N.F., 205 S.W.3d 625, 631 (Tex.App.—
Waco 2006, pet. denied) (same); Wilson v. State, 116 S.W.3d 923, 929 (Tex.App.—
Dallas 2003, no pet.) (excuse does not create a fact issue as to compliance). We find
Ivan’s excuses especially ineffectual considering the uncontroverted evidence that the
Department offered Ivan transportation, which he refused, and, following the death of
Dr. Kleinpeter, the Department informed Ivan that he could comply with the psychologist
or psychiatrist requirement by scheduling an appointment with Dr. Basham.
However, beyond Ivan’s claims of substantial compliance and his excuses for his
failure to comply with the trial court’s order, Ivan provides no excuse or claim of
substantial compliance regarding his failure to comply with the requirements that he
maintain stable housing and that he submit himself to random drug screens when
requested by the Department. As addressed above, Ivan had at least six different
housing arrangements during the year-and-a-half pendency of this case, even though
the service plan required him to maintain stable housing. Additionally, both the service
plan and the trial court’s order required Ivan to submit to drug screens when requested
by the Department. However, the evidence is undisputed that Ivan refused six of eight
random drug screens requested by the Department.
Viewing all of the evidence in the light most favorable to the trial court’s finding
under section 161.001(1)(O), we conclude that a reasonable trier of fact could have
11 formed a firm belief or conviction that Ivan failed to comply with the provisions of a court
order that specifically established the actions necessary for him to obtain return of the
children. Further, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is not so significant that a factfinder could not reasonably
have formed a firm belief or conviction that Ivan failed to comply with the provisions of
the trial court’s order. Consequently, we overrule Ivan’s fourth issue.
As only one statutory ground is required to terminate parental rights under
section 161.001, see In re N.R., 101 S.W.3d at 775, we need not address Ivan’s first,
second, or third issues. See TEX. R. APP. P. 47.1.
Best Interest of the Children
However, even after finding the evidence sufficient to support a finding under
section 161.001(1), we must still address Ivan’s sixth issue which challenges the
sufficiency of the evidence to support the trial court’s determination that termination of
the parent-child relationship between Ivan and the children is in the children’s best
interest. See § 161.001(2).
There is a strong presumption that the best interest of a child is served by
keeping the child with its natural parent, and the Department bears the burden to rebut
that presumption. In re C.M.C., 273 S.W.3d at 876; In re S.M.L., 171 S.W.3d 472, 480
(Tex.App.—Houston [14th Dist.] 2005, no pet.). In deciding what is in a child’s best
interest, we will consider numerous factors, including (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 12 individuals seeking custody; (5) the programs available to assist these individuals; (6)
the plans for the child by these individuals; (7) the stability of the home; (8) the acts or
omissions of the parent which may indicate that the existing parent-child relationship is
not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley,
544 S.W.2d at 371-72. It is not necessary that each factor favor termination, In re
P.E.W., 105 S.W.3d 771, 780 (Tex.App.—Amarillo 2003, no pet.), and the list is not
exclusive. In re C.J.F., 134 S.W.3d 343, 354 (Tex.App.—Amarillo 2003, pet. denied).
To support the termination, there must be evidence from which a factfinder could
reasonably form a firm conviction or belief that the termination was in the child’s best
interest. In re D.S.A. 113 S.W.3d 567, 574 (Tex.App.—Amarillo 2003, no pet.).
The need for permanence is a compelling consideration in determining a child's
present and future physical and emotional needs. In re T.D.C., 91 S.W.3d 865, 873
(Tex.App.--Fort Worth 2002, pet. denied); see In re S.H.A., 728 S.W.2d 73, 92
(Tex.App.--Dallas 1987, writ ref'd n.r.e.). In the present case, Ivan’s actions led to the
Department removing the children. Further, since the time of the removal, Ivan has not
taken actions consistent with being able to provide the children with the sort of stable
and healthy environment that would suggest that the Department would not likely need
to remain involved in the children’s lives. Ivan has not maintained stable housing or
employment, he has not availed himself of services offered through the Department,
and he continues to use drugs.6 Drug use during the pendency of a termination
6 While Ivan submitted to the final drug screen before trial and tested negative for all illegal drugs, he tested positive for marijuana on his first test and then failed to submit to six drug screens requested by the Department. Ivan’s failure to submit to these drug screens are in direct contravention of the trial court’s order and, under the express 13 proceeding is evidence of an inability to provide a stable environment for a child and for
the child’s emotional and physical needs. In re F.A.R., No. 11-04-00014-CV, 2005
Tex.App. LEXIS 234, at *11-12 (Tex.App.--Eastland Jan. 13, 2005, no pet.) (mem. op.).
For these reasons, we conclude that the evidence on the factor of the emotional and
physical needs of the children weighs in favor of termination of Ivan’s parental rights.
Further, Ivan’s failure to avail himself of the services offered through the
Department during most of the time that this case was pending suggests that Ivan
would not avail himself of programs available to assist him in caring for the children.
Even were we to conclude that Ivan would avail himself of programs, no evidence was
offered of any programs that are available to Ivan. The evidence regarding programs
available to Ivan weighs in favor of termination of Ivan’s parental rights.
Other than pledging to support his children with his social security disability
benefits and to enlist the help of family members to help him provide a safe environment
for the children, Ivan presented no concrete plans for the children. By contrast, the
Department has placed the children in a foster home in which the children have bonded
well with the foster mother. Further, the foster home in which the children have been
placed is open to adoption if the parental rights of Ivan and Keshia are terminated.
terms of the service plan, constitute positive results. As such, the evidence supports a determination that Ivan tested positive on the first seven drug screens, and only tested negative on the final drug screen before trial. Evidence of a recent change in behavior should be determinative only when it is reasonable to conclude that rehabilitation, once begun, will surely continue. In re M.G.D., 108 S.W.3d 508, 514 (Tex.App.—Houston [14th Dist.] 2003, pet. denied). Considering Ivan’s reluctance to avail himself of the services offered to him until the final months before trial, it is not reasonable to conclude that Ivan’s drug rehabilitation will surely continue. 14 Consequently, the evidence regarding the parties’ plans for the children weighs slightly
in favor of termination.
Viewing all of the evidence in the light most favorable to the trial court’s best
interest finding, we conclude that the evidence is such as to allow a reasonable trier of
fact to form a firm belief or conviction that the termination of Ivan’s parental rights to
Y.G. and Z.G. is in the children’s best interest. Likewise, we conclude that the disputed
evidence that a reasonable factfinder could not have credited in favor of the finding is
not so significant that a factfinder could not reasonably have formed a firm belief or
conviction that it is in the children’s best interest to terminate Ivan’s parental rights.
Consequently, we overrule Ivan’s sixth issue.
Findings of Fact and Conclusions of Law
Finally, Ivan’s fifth issue contends that the trial court’s findings of fact and
conclusions of law are insufficient because they do not specifically identify any action
taken by Ivan that violated section 161.001(1). Rather, according to Ivan, these findings
of fact and conclusions of law attempt to justify termination solely on the basis of the
children’s best interest. Because termination requires a finding that the parent violated
at least one of the section 161.001(1) subsections and that termination is in the best
interest of the children, see In re A.V., 113 S.W.3d 355, 362 (Tex. 2003), Ivan contends
that the trial court’s findings of fact and conclusions of law are insufficient to support
termination of his parental rights.
However, Ivan’s dissatisfaction with the findings and conclusions filed by the trial
court could have been remedied had he filed a request for additional findings and 15 conclusions. See TEX. R. CIV. P. 298. Because Ivan failed to avail himself of this
remedy and bring this defect to the attention of the trial court, he has waived his ability
to complain of the trial court’s findings of fact and conclusions of law on appeal. See In
re Q.W.J., No. 07-10-0075-CV, 2011 Tex.App. LEXIS 6635, at *9-10 (Tex.App.—
Amarillo Aug. 18, 2011, no pet.); Hill v. Hill, 971 S.W.2d 153, 157 (Tex.App.—Amarillo
1998, no pet.). As such, we overrule Ivan’s fifth issue.
Conclusion
Having overruled each of Ivan’s appellate issues, we affirm the judgment of the
trial court.
Mackey K. Hancock Justice