Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2015-04788J
consists of Chief Justice Radack and Justices Jennings and
MEMORANDUM OPINION ON REHEARING
ad litem, representing the interests of the minor child
("the child"), has filed a motion for rehearing of
our March 9, 2017 opinion and judgment, and he requests leave
to submit a brief in support of the motion. Neither
appellant, S.O., nor appellee, the Texas Department of Family
and Protective Services ("DFPS"), opposes the
granting of rehearing or our consideration of the attorney ad
litem's brief. Accordingly, we grant the motion for
rehearing, grant leave for the attorney ad litem to submit
his brief on behalf of the child, withdraw our opinion and
judgment of March 9, 2017, and issue this opinion and new
judgment in their stead.
accelerated appeal,  S.O. challenges the trial court's
order, entered after a bench trial, terminating her parental
rights to the child. In two issues, S.O. contends that the
evidence is legally and factually insufficient to support the
trial court's findings that she failed to comply with the
provisions of a court order that specifically established the
actions necessary for her to obtain the return of the
childand termination of her parental rights is
in the best interest of the child.
August 13, 2015, DFPS filed a petition seeking managing
conservatorship of the child and termination of S.O.'s
parental rights to him.
trial, DFPS caseworker Yadira Silva testified that DFPS took
the child into custody after allegations arose of S.O.'s
physical neglect, medical neglect, and neglectful supervision
of the child. At the time, S.O., who was sixteen years old,
and the child lived in the home of S.O.'s mother. The
child had scabies and scratches, was not being properly
supervised, and was malnourished. S.O. did not give the child
medication to treat his scabies, and as a result he
"suffered wounds" on his legs, forearms, and face.
Silva noted that the home in which S.O. and the child lived
was "filthy dirty, " with "feces around,
" and S.O. did not properly wash the child's
bottles. S.O. was "going out with [an alleged] father
who [was] drink[ing] every night and . . . using
cocaine" in the home. And during an altercation between S.O.
and an alleged father, the child "fell down as a
result." Silva also noted that prior to DFPS's
involvement, S.O. had not attended school for two years, and
at seventeen years old, she was in the ninth grade.
DFPS removed both S.O. and the child from the home of
S.O.'s mother and placed them together at a shelter.
However, when the shelter's staff notified DFPS that the
child had "scratches on him, " DFPS removed him
from S.O.'s care and placed him in a foster
home. Silva explained that at the time of trial,
S.O. was in a "group home for teen moms" in San
Antonio, Texas. And since DFPS had placed the child in a
foster home, S.O. had given birth to a second child, who
resided with her in the group home. Further, S.O. told Silva
that when she is eighteen years old, she will "age
out" of the group home and intends to leave it.
further testified that although DFPS had given S.O. a Family
Service Plan ("FSP"), she did not complete all of
its requirements. Specifically, S.O. did not attend school
regularly. During her summer-school session, S.O. missed
school for two days, and during the previous semester, she
had been absent from school for fifty days. S.O. told Silva
that she had missed school because she did not want to go,
missed the child, and did not feel well. When asked whether
S.O. had "attend[ed] school daily unless she ha[d] a
doctor's appointment, " as required by her FSP,
Silva responded, "No." Silva also explained that
S.O. had not provided her school grades to her caseworker and
had not completed her individual or group therapy. However,
S.O. did complete her psychological evaluation and parenting
time of trial, the child had been living with his current
foster parentsfor about six months, and they were meeting
his medical needs. Silva explained that the child is doing
"very well" in his current placement and his foster
parents want to adopt him. She noted that the child does not have
"any ongoing conditions, special needs, " or
"medical needs" and it is in his best interest to
remain with his foster parents, rather than to be returned to
S.O. Silva noted, however, that DFPS was only requesting
permanent managing conservatorship of the child; it was not
requesting termination of S.O.'s parental
rights. Yet, Silva opined that the child would
not be "safe and stable" if returned to S.O. And if
S.O. were to leave her group home, she would not be able to
adequately care for the child or provide him with a safe and
stable environment, particularly because she does not have
any familial support and has another child in her care.
Bramlett, a volunteer with Child Advocates Inc. ("Child
Advocates"), testified that the child is doing well in
his current placement, and she opined that it is in his best
interest to remain in his current placement and not be
returned to S.O. Specifically, Bramlett expressed her
concerns about S.O.'s ability to provide a safe and
stable home for the child, S.O.'s intention to leave the
group home when she is eighteen years old, and the fact that
S.O. had not been attending school, even while living in a
stable and structured environment in her group home. Thus,
Bramlett requested termination of S.O.'s parental rights.
testified that she had missed several days of school because
she did not feel safe at school and had not been
"receiving any education at the school." S.O.
explained, "[T]hey had me doing a lot of things in PE. I
almost fell down the stairs. There w[ere] a lot kids pushing
me." And after she had given birth to her second child,
she continued to be absent from school because she had
"a lot of things" to deal with after "the
baby's body br[oke] out from . . . eczema." S.O.
noted that she had attended summer school during the two
months prior to trial and she successfully completed it.
However, she admitted that she knew that the trial court had
ordered her to attend school regularly, and between October
2015 and February 2016, she missed "more than 50
days" of school. And she conceded that prior to giving
birth to the child, she had not attended school for two years
because she had "dropped out."
further testified that when she is eighteen years old she
intends to leave the group home and plans to "look for a
[new] place [to live] before" she leaves it. Although
she has not determined how she will obtain money to pay for a
place to live, she "want[s] to keep" the child.
trial court admitted into evidence the FSP and October 27,
2015 Status Hearing Order, in which it found that S.O. had
reviewed, understood, and signed her FSP. It further found
that she had been "advised that unless she [was] willing
and able to provide the child with a safe environment, even
with the assistance of a service plan, within the reasonable
period of time specified in the [FSP], her parental and
custodial duties and rights may be subject to restriction or
to termination or the child may not be returned to her."
And the trial court ordered S.O. to complete the requirements
of her FSP.
parent's right to "the companionship, care, custody,
and management of" 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, 1397 (1982) (internal quotations
omitted). The United States Supreme Court has emphasized that
"the interest of parents in the care, custody, and
control of their children . . . is perhaps the oldest of the
fundamental liberty interests recognized by th[e]
Court." Troxel v. Granville, 530 U.S. 57, 65,
120 S.Ct. 2054, 2060 (2000). Likewise, the Texas Supreme
Court has concluded that "[t]his natural parental
right" is "essential, " "a basic civil
right of man, " and "far more precious than
property rights." Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985) (internal quotations omitted).
Consequently, "[w]e strictly construe involuntary
termination statutes in favor of the parent." In re
E. N.C. , 384 S.W.3d 796, 802 (Tex. 2012).
termination of parental rights is "complete, final,
irrevocable and divests for all time that natural right . .
., the evidence in support of termination must be clear and
convincing before a court may involuntarily terminate a
parent's rights." Holick, 685 S.W.2d at 20.
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." Tex. Fam. Code Ann. §
101.007 (Vernon 2014); see also In re J.F.C., 96
S.W.3d 256, 264 (Tex. 2002). Because the standard of proof is
"clear and convincing evidence, " the Texas Supreme
Court has held that the traditional legal and factual
standards of review are inadequate. In re J.F.C., 96
S.W.3d at 264-68.
conducting a legal-sufficiency review in a
termination-of-parental-rights case, we must determine
whether the evidence, viewed in the light most favorable to
the finding, is such that the fact finder could reasonably
have formed a firm belief or conviction about the truth of
the matter on which DFPS bore the burden of proof.
Id. at 266. In viewing the evidence in the light
most favorable to the finding, we "must assume that the
factfinder resolved disputed facts in favor of its finding if
a reasonable factfinder could do so, " and we
"should disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been
incredible." In re J.P.B., 180 S.W.3d 570, 573
(Tex. 2005) (internal quotations omitted). However, this does
not mean that we must disregard all evidence that does not
support the finding. In re J.F.C., 96 S.W.3d at 266.
Because of the heightened standard, we must also be mindful
of any undisputed evidence contrary to the finding and
consider that evidence in our analysis. Id. If we
determine that no reasonable trier of fact could form a firm
belief or conviction that the matter that must be proven is
true, we must hold the evidence to be legally insufficient
and render judgment in favor of the parent. Id.
conducting a factual-sufficiency review in a
parental-rights-termination case, we must determine whether,
considering the entire record, including evidence both
supporting and contradicting the finding, a fact finder
reasonably could have formed a firm conviction or belief
about the truth of the matter on which DFPS bore the burden
of proof. In re C.H., 89 S.W.3d 17, 25-26 (Tex.
2002). We should consider whether the disputed evidence is
such that a reasonable fact finder could not have resolved
the disputed evidence in favor of its finding. In re
J.F.C., 96 S.W.3d at 266-67. "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." In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006) (internal quotations omitted).
of the Evidence
issues, S.O. argues that the trial court erred in terminating
her parental rights to the child because the evidence is
legally and factually insufficient to support the trial
court's findings that she failed to comply with the
provisions of a court order that specifically established the
actions necessary for her to obtain the return of the child
and termination of her parental rights is ...