Court of Appeals of Texas, Second District, Fort Worth
THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; MEIER and GABRIEL, JJ.
MEMORANDUM OPINION 
an ultra-accelerated appeal in which Appellant appeals the
termination of his parental rights to his son,
Mark. In four issues, Appellant challenges the
sufficiency of the evidence to support the trial court's
constructive-abandonment, prolonged-incarceration, and
best-interest findings. Appellant also argues that he was not
given proper notice regarding the trial court's
court-ordered services finding. We will affirm.
Newman, a conservatorship worker for the Texas Department of
Family and Protective Services (Department), testified at the
termination trial that Mark was born in March of 2015, and
that the Department had been appointed permanent managing
conservatorship of Mark since April 20, 2015. According to
Newman, Mark was placed in foster care because he and his
biological mother had tested positive for methamphetamine and
because the mother was unable to provide appropriate
placement with relatives. Newman averred that at the time of
Mark's placement with the Department, there was an
alleged father-not Appellant-and that DNA tests later
revealed this man was not Mark's biological father. By
Newman's account, Appellant and the original alleged
father informed the Department that Appellant could be
Mark's biological father. After failing to attend the
first scheduled DNA test, later DNA testing revealed that
Appellant is Mark's biological father.
12, 2016, Appellant signed a waiver of service acknowledging
his paternity and visited Mark for the first and only time.
Three days later, police arrested Appellant for DWI.
stated that on August 30, 2016, the trial court terminated
Mark's mother's parental rights, and the final order
included court-ordered services for Appellant. Newman averred
that Appellant had been present at Mark's mother's
termination trial with counsel and that he agreed to the
court-ordered services. Part of the court-ordered services
required Appellant to obtain safe, stable, and appropriate
housing for Mark, but Newman averred that Appellant had not
done so. Appellant was also ordered to obtain stable
employment, which Newman said that he had not done. Because
Appellant has a criminal history that includes numerous
convictions for possession of controlled substances,
Appellant was also ordered to submit to drug testing, but
because he was jailed shortly after the court's order,
according to Newman, Appellant had never submitted to the
court-ordered drug testing-although Appellant did pass one
drug test prior to the court-ordered services. Newman said
that Appellant also failed to participate in and successfully
complete court-ordered counseling and parenting classes.
averred that in addition to being jailed for the DWI,
Appellant was eventually incarcerated for a separate charge
of burglary. Newman further averred that even though
Appellant had the ability to visit Mark twice weekly between
the time he was in jail and his ultimate incarceration, he
had only visited Mark the one initial time. Newman also said
that Appellant had failed to maintain court-ordered contact
with the Department.
stated that she had concerns about Appellant's decision
making because despite knowing that he was Mark's
biological father, he admittedly still chose to drive
intoxicated. She also averred that she was concerned that
Appellant could not provide a safe and stable environment for
Mark due to Appellant's drug use, lack of employment, and
the instability from consistently being in and out of
confinement. Newman said that through his actions, including
not visiting Mark when he had the opportunity, Appellant had
never indicated that he wanted to maintain a relationship
a possible placement for Mark, Newman averred that Appellant
provided her with two options: his parents or his cousin. But
Newman said that Appellant's parents told her that they
were too old to care for Mark and that they were unwilling to
child-proof their home. Newman stated that the cousin
initially indicated that she would be willing to care for
Mark but that the cousin eventually stopped communicating
with the Department.
said that Mark was currently placed in a foster home where he
had been for over two years and that the foster father was in
attendance at trial. By Newman's account, Mark was
initially underweight because of being prematurely born and
the effects of methamphetamine but that now under foster
care, Mark is "doing very well, very healthy."
Newman also said that Mark was initially developmentally
delayed but that now he was at an appropriate developmental
state. Newman further averred that Mark's foster parents
had provided proper medical care for Mark and that they were
meeting his emotional and developmental needs. She also said
that the foster home was a loving home and that the foster
parents had other children in the home whom Mark has bonded
with. According to Newman, Mark has bonded with the foster
parents and calls them "mommy and daddy." By
Newman's account, the foster family is the only family
Mark has ever known.
testified that it was the Department's view that
Appellant's parental rights to Mark should be terminated
and that it would be in Mark's best interest if the trial
court did so. She also said that she believed it would be
traumatic to Mark to now separate him from the foster family
that he had bonded with and that Mark barely knows Appellant.
Newman stated that it was the Department's plan that the
trial court continue the ...