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In re D.D.

Court of Appeals of Texas, Tenth District

December 27, 2013

IN THE INTEREST OF D.D., C.C., C.C., AND C.C., CHILDREN

From the 361st District Court Brazos County, Texas Trial Court No. 12-000325-CV-361

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

MEMORANDUM OPINION

REX D. DAVIS Justice

Raising one issue with four subparts, which we will treat as four issues, Appellant G.R. challenges the trial court's order of termination of her parental rights to her four children.[1] We will affirm.

Appellant's children were removed after D.D. was brutally attacked and sexually assaulted by C.B., Appellant's thirteen-year-old nephew. Appellant had left all four of the children in C.B.'s care while she went to the store.

After a bench trial, the trial court found the following predicate violations as grounds for termination of Appellant's parental rights: (1) Appellant knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the children's physical or emotional well-being (Family Code subsection 161.001(1)(D)); (2) Appellant engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being (Family Code subsection 161.001(1)(E)); and (3) Appellant failed to comply with provisions of a court order specifically establishing actions necessary for the parent to obtain return of the children (Family Code subsection 161.001(1)(O)). The trial court also found that termination of Appellant's parental rights was in the children's best interest.

In a proceeding to terminate the parent-child relationship brought under section 161.001, the Department must establish by clear and convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (1) of section 161.001, termed a predicate violation; and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1), (2) (West Supp. 2013); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied). The factfinder must find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. If multiple predicate violations under section 161.001(1) were found in the trial court, we will affirm based on any one ground because only one predicate violation under section 161.001(1) is necessary to a termination judgment. In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet. denied), overruled in part on other grounds by In re A.M., 385 S.W.3d 74, 79 (Tex. App.— Waco 2012, pet. denied).

Predicate Violation

In issue three, Appellant contends that there is no or insufficient evidence to support the finding that she failed to comply with the provisions of a court order specifically establishing the actions necessary for the parent to obtain 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 result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the children.

The standards of review for legal and factual sufficiency in termination cases are well established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). In reviewing the legal sufficiency, we view all the evidence in the light most favorable to the finding to determine whether a trier of fact could reasonably have formed a firm belief or conviction about the truth of the Department's allegations. In re J.L., 163 S.W.3d 79, 84-85 (Tex. 2005); J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed evidence that does not support the finding. J.F.C., 96 S.W.3d at 266. In reviewing the factual sufficiency of the evidence, we must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. We must consider the disputed evidence and determine whether a reasonable fact-finder could have resolved that evidence in favor of the finding. Id. If the disputed evidence is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, the evidence is factually insufficient. Id.

Appellant's brief asserts that she made a "concerted effort" to comply with her court-ordered service plan, but Appellant admitted on cross-examination that she did not complete her service plan. On direct examination, she had testified: "I feel like I've done -- I'm still – I'm still am doing the best I can, and still willing to do whatever needs to be done." Michelle Hudiburgh, the Department caseworker, also testified that Appellant did not complete her service plan. Moreover, Appellant admitted that she was given a fair opportunity to complete her service plan, that other than changing counselors, nothing had kept her from completing her service plan, and that she had understood that if she did not complete her service plan, her rights could be restricted or terminated.

The Family Code does not provide for substantial compliance with a court-ordered service plan under subsection 161.001(1)(O), nor does subsection 161.001(1)(O) allow for excuses for failure to complete the service plan. In re R.N.W., No. 10-11-00441-CV, 2012 WL 2053857, at *2 (Tex. App.—Waco June 6, 2012, no pet.) (mem. op.); see also In re M.C.G., 329 S.W.3d 674, 676 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).

Because the evidence is legally and factually sufficient to support the trial court's finding that Appellant failed to comply with the provisions of a court order specifically establishing the actions necessary for her to obtain return of her children, we overrule issue three. We thus need not address issues one and two, which are sufficiency ...


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