Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-18-00099-CV
IN THE INTEREST OF Z.M.M., a Child
From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA00639 Honorable Richard Garcia, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice
Delivered and Filed: June 27, 2018
AFFIRMED
This is an accelerated appeal from an order terminating appellant’s parental rights to his
child, Z.M.M. The appellant-father challenges the sufficiency of the evidence in support of the
trial court’s predicate statutory findings as well as its finding that termination of his parental rights
was in Z.M.M.’s best interest. See TEX. FAM. CODE ANN. §§ 161.001(b)(1), (2) (West Supp. 2017).
We affirm the trial court’s termination order.
BACKGROUND
On March 28, 2017, the Texas Department of Family and Protective Services (“the
Department”) filed a petition to terminate appellant’s parental rights. A bench trial was conducted
on February 12, 2018. At the time of trial, Z.M.M. was two years old. Department caseworker
Eletheia Hill testified the Department received a referral alleging drug use by Z.M.M.’s mother in 04-18-00099-CV
the home where Z.M.M. was residing. Mother admitted to using methamphetamines and
marijuana at the time of inquiry. According to Hill, appellant claimed to know that Z.M.M.’s
mother was “using something,” but made no efforts to remove Z.M.M. from the situation.
As part of his family service plan, appellant was required to participate in a parenting class;
obtain and submit proof of housing; remain drug and alcohol free; and complete a drug and alcohol
assessment, as well as any recommended treatments the assessment recommended. Hill testified
that appellant completed his parenting class and his assessment, but did not complete the
recommended outpatient therapy. Hill also testified that appellant told her he recently obtained
housing, but that because appellant would not give her his address, she had been unable to confirm
where he was living. When Hill asked why appellant was not completing the conditions of his
service plan, appellant claimed he did not want to take time off work and that he did not have
transportation. According to Hill, the Department offered appellant transportation and extra time
to complete his service plan.
The caseworker believed it was in Z.M.M.’s best interest for appellant’s parental rights to
be terminated so that Z.M.M. would have the opportunity to move forward with his foster parents
through formal adoption. The foster parents and Z.M.M. are bonded; they provide Z.M.M. with a
safe and stable home; they have demonstrated that they are able to take care of Z.M.M.; and
Z.M.M. has lived with them since April 2017, which is longer than the total amount of time
appellant ever lived with Z.M.M. Hill also characterized appellant’s visits with Z.M.M. as “off
and on,” with only two visits in the last five months.
Appellant also testified at the hearing. Appellant admitted to knowing Z.M.M.’s mother
was using drugs, but did not get involved because Z.M.M.’s mother and her current boyfriend
made it difficult for him to see Z.M.M. Appellant also admitted to using marijuana within six
months of trial. Appellant testified that for a period of time he did not have a stable job or a place -2- 04-18-00099-CV
to stay, but that he was currently working in a restaurant and was living with a friend. Appellant
wants to be reunited with Z.M.M., but admitted he did not have a stable home and would not be
able to presently provide Z.M.M. with one.
STANDARD OF REVIEW
A parent-child relationship may be terminated only if the trial court finds by clear and
convincing evidence one of the predicate grounds enumerated in section 161.001(b)(1) and that
termination is in the child’s best interests. Id. § 161.001(b)(1), (2). Clear and convincing evidence
requires “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.” Id. § 101.007 (West Supp. 2017). We review
the legal and factual sufficiency of the evidence under the standards of review established by the
Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002).
PREDICATE FINDINGS
In his first issue, appellant challenges the sufficiency of the evidence supporting
the trial court’s predicate findings under section 161.001(b)(1)(D), (N), and (O). See id.
§ 161.001(b)(1)(D),(N),(O). The trial court concluded there was clear and convincing evidence
that appellant: (1) had knowingly placed or knowingly allowed the child to remain in conditions
or surroundings which endanger the physical or emotional well-being of the child; (2)
constructively abandoned the child; and (3) failed to comply with the provisions of a court order
specifically establishing the actions necessary for appellant to obtain the return of child. Id.
Subsection (O) allows termination of the parent-child relationship when a parent has failed
to satisfy any of the conditions set out in the family service plan. Id. § 161.001(b)(1)(O). Texas
courts generally take a strict approach to subsection (O)’s application. In re D.N., 405 S.W.3d
863, 877 (Tex. App.—Amarillo 2013, no pet.). In construing subsection (O), courts only look for
a parent’s failure to comply and do not measure a parent’s “degree of compliance” or “quantity of -3- 04-18-00099-CV
failure.” Id. In this case, appellant’s service plan required him to: (1) obtain and submit proof of
stable housing; (2) participate in a parenting class; and (3) complete a drug and alcohol assessment,
“follow all recommendations of the assessment including but not limited to inpatient drug
treatment,” and remain drug and alcohol free. The evidence shows appellant completed a parenting
class and a drug and alcohol assessment; however, appellant did not “follow all recommendations
of the assessment” because he failed to complete the recommended outpatient therapy. Appellant
also failed to remain drug free, admitting that he had used marijuana during the pendency of the
case. Lastly, appellant testified to recently moving in with a friend, but he failed to provide the
caseworker with an address or any other proof of stable housing. Although appellant completed
some of the requirements on his service plan, the evidence conclusively shows he did not comply
with all of the requirements of his service plan. See In re M.C.G., 329 S.W.3d 674, 676 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied) (determining a parent’s failure to complete just one
requirement of the service plan supports termination); In re T.T., 228 S.W.3d 312, 319 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied) (affirming that substantial or partial compliance
with a service plan is insufficient to avoid termination). Accordingly, we hold the evidence is
legally and factually sufficient to support the trial court’s finding under section 161.001(b)(1)(O).
Because a single ground under section 161.001(b)(1) can support termination when there is also a
Free access — add to your briefcase to read the full text and ask questions with AI
Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-18-00099-CV
IN THE INTEREST OF Z.M.M., a Child
From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA00639 Honorable Richard Garcia, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice
Delivered and Filed: June 27, 2018
AFFIRMED
This is an accelerated appeal from an order terminating appellant’s parental rights to his
child, Z.M.M. The appellant-father challenges the sufficiency of the evidence in support of the
trial court’s predicate statutory findings as well as its finding that termination of his parental rights
was in Z.M.M.’s best interest. See TEX. FAM. CODE ANN. §§ 161.001(b)(1), (2) (West Supp. 2017).
We affirm the trial court’s termination order.
BACKGROUND
On March 28, 2017, the Texas Department of Family and Protective Services (“the
Department”) filed a petition to terminate appellant’s parental rights. A bench trial was conducted
on February 12, 2018. At the time of trial, Z.M.M. was two years old. Department caseworker
Eletheia Hill testified the Department received a referral alleging drug use by Z.M.M.’s mother in 04-18-00099-CV
the home where Z.M.M. was residing. Mother admitted to using methamphetamines and
marijuana at the time of inquiry. According to Hill, appellant claimed to know that Z.M.M.’s
mother was “using something,” but made no efforts to remove Z.M.M. from the situation.
As part of his family service plan, appellant was required to participate in a parenting class;
obtain and submit proof of housing; remain drug and alcohol free; and complete a drug and alcohol
assessment, as well as any recommended treatments the assessment recommended. Hill testified
that appellant completed his parenting class and his assessment, but did not complete the
recommended outpatient therapy. Hill also testified that appellant told her he recently obtained
housing, but that because appellant would not give her his address, she had been unable to confirm
where he was living. When Hill asked why appellant was not completing the conditions of his
service plan, appellant claimed he did not want to take time off work and that he did not have
transportation. According to Hill, the Department offered appellant transportation and extra time
to complete his service plan.
The caseworker believed it was in Z.M.M.’s best interest for appellant’s parental rights to
be terminated so that Z.M.M. would have the opportunity to move forward with his foster parents
through formal adoption. The foster parents and Z.M.M. are bonded; they provide Z.M.M. with a
safe and stable home; they have demonstrated that they are able to take care of Z.M.M.; and
Z.M.M. has lived with them since April 2017, which is longer than the total amount of time
appellant ever lived with Z.M.M. Hill also characterized appellant’s visits with Z.M.M. as “off
and on,” with only two visits in the last five months.
Appellant also testified at the hearing. Appellant admitted to knowing Z.M.M.’s mother
was using drugs, but did not get involved because Z.M.M.’s mother and her current boyfriend
made it difficult for him to see Z.M.M. Appellant also admitted to using marijuana within six
months of trial. Appellant testified that for a period of time he did not have a stable job or a place -2- 04-18-00099-CV
to stay, but that he was currently working in a restaurant and was living with a friend. Appellant
wants to be reunited with Z.M.M., but admitted he did not have a stable home and would not be
able to presently provide Z.M.M. with one.
STANDARD OF REVIEW
A parent-child relationship may be terminated only if the trial court finds by clear and
convincing evidence one of the predicate grounds enumerated in section 161.001(b)(1) and that
termination is in the child’s best interests. Id. § 161.001(b)(1), (2). Clear and convincing evidence
requires “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.” Id. § 101.007 (West Supp. 2017). We review
the legal and factual sufficiency of the evidence under the standards of review established by the
Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002).
PREDICATE FINDINGS
In his first issue, appellant challenges the sufficiency of the evidence supporting
the trial court’s predicate findings under section 161.001(b)(1)(D), (N), and (O). See id.
§ 161.001(b)(1)(D),(N),(O). The trial court concluded there was clear and convincing evidence
that appellant: (1) had knowingly placed or knowingly allowed the child to remain in conditions
or surroundings which endanger the physical or emotional well-being of the child; (2)
constructively abandoned the child; and (3) failed to comply with the provisions of a court order
specifically establishing the actions necessary for appellant to obtain the return of child. Id.
Subsection (O) allows termination of the parent-child relationship when a parent has failed
to satisfy any of the conditions set out in the family service plan. Id. § 161.001(b)(1)(O). Texas
courts generally take a strict approach to subsection (O)’s application. In re D.N., 405 S.W.3d
863, 877 (Tex. App.—Amarillo 2013, no pet.). In construing subsection (O), courts only look for
a parent’s failure to comply and do not measure a parent’s “degree of compliance” or “quantity of -3- 04-18-00099-CV
failure.” Id. In this case, appellant’s service plan required him to: (1) obtain and submit proof of
stable housing; (2) participate in a parenting class; and (3) complete a drug and alcohol assessment,
“follow all recommendations of the assessment including but not limited to inpatient drug
treatment,” and remain drug and alcohol free. The evidence shows appellant completed a parenting
class and a drug and alcohol assessment; however, appellant did not “follow all recommendations
of the assessment” because he failed to complete the recommended outpatient therapy. Appellant
also failed to remain drug free, admitting that he had used marijuana during the pendency of the
case. Lastly, appellant testified to recently moving in with a friend, but he failed to provide the
caseworker with an address or any other proof of stable housing. Although appellant completed
some of the requirements on his service plan, the evidence conclusively shows he did not comply
with all of the requirements of his service plan. See In re M.C.G., 329 S.W.3d 674, 676 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied) (determining a parent’s failure to complete just one
requirement of the service plan supports termination); In re T.T., 228 S.W.3d 312, 319 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied) (affirming that substantial or partial compliance
with a service plan is insufficient to avoid termination). Accordingly, we hold the evidence is
legally and factually sufficient to support the trial court’s finding under section 161.001(b)(1)(O).
Because a single ground under section 161.001(b)(1) can support termination when there is also a
finding that termination was in the child’s best interest, we need not address appellant’s challenges
to the evidence in support of termination under subsections (D) and (N). See In re A.V., 113
S.W.3d 355, 362 (Tex. 2003).
BEST INTEREST
In his second issue, appellant challenges the sufficiency of the evidence supporting the trial
court’s finding that termination of his parental rights was in Z.M.M.’s best interest. There is a
strong presumption that keeping a child with a parent is in the child’s best interest. In re R.R., 209 -4- 04-18-00099-CV
S.W.3d 112, 116 (Tex. 2006). However, it is equally presumed that “the prompt and permanent
placement of the child in a safe environment is . . . in the child’s best interest.” TEX. FAM. CODE
ANN. § 263.307(a) (West Supp. 2017).
Our best-interest analysis is guided by consideration of the non-exhaustive Holley factors. 1
The Department was not required to prove each factor, and the absence of evidence regarding some
of the factors would not preclude the factfinder from reasonably forming a strong conviction that
termination was in the child’s best interest, particularly if the evidence was undisputed that the
parent-child relationship endangered the safety of the child. See In re C.H., 89 S.W.3d 17, 27
(Tex. 2002). The focus of our review is whether the evidence, as a whole, is sufficient for the trial
court to have formed a strong conviction or belief that termination of the parent-child relationship
was in Z.M.M.’s best interest. Id.
Evidence of a parent’s drug use, inability to provide a stable home, and failure to comply
with a family service plan supports a finding that termination is in the best interest of the child. In
re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.). The evidence at trial
established that, following a court-ordered drug assessment, appellant was to be treated for mild
marijuana addiction. Appellant also admitted to using marijuana within six months of trial. See
In re L.G.R., 498 S.W.3d 194, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“A
parent’s drug use supports a finding that termination is in the best interest of the child.”). The
1 These 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; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
-5- 04-18-00099-CV
evidence also showed that appellant failed to comply with his service plan when he neglected to
submit proof of stable housing, attend outpatient treatment, and remain drug free. See In re S.B.,
207 S.W.3d 877, 888 (Tex. App.—Fort Worth 2006, no pet.) (holding a failure to comply with a
service plan supports a finding that termination is in the best interest of the child). Appellant’s
own testimony called into question his ability to provide a stable home to Z.M.M. Appellant
testified to being “nowhere [near] stable at all” for a period of time, but claimed that he was
currently employed and living with a friend; however, no proof of employment or of his place of
residence was offered. At trial, when asked if he thought he could be reunited with Z.M.M. today,
appellant stated he was ready to be reunited, but that he would not presently be able to provide a
stable home for Z.M.M. See In re L.G.R., 498 S.W.3d at 205 (“A child’s need for permanence
through the establishment of a stable, permanent home has been recognized as the paramount
consideration in a best-interest determination.”) (internal quotation marks omitted). The
caseworker, however, testified that Z.M.M. was doing well with his foster family. She testified
that the foster family wants to formally adopt Z.M.M., is meeting all of Z.M.M.’s needs, and that
it is in Z.M.M.’s best interest to remain with the family. See In re J.D., 436 S.W.3d 105, 120 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (“The stability of the proposed home environment is
an important consideration in determining whether termination of parental rights is in the child’s
best interest.”). Having reviewed the record, we hold the evidence is legally and factually
sufficient to support the trial court’s finding that termination is in Z.M.M.’s best interest.
CONCLUSION
The trial court’s order of termination is affirmed.
Rebeca C. Martinez, Justice
-6-