Court of Appeals of Texas, Fourth District, San Antonio
the 150th Judicial District Court, Bexar County, Texas Trial
Court No. 2016-PA-00433 Honorable Karen H. Pozza, Judge
Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini,
Justice Marialyn Barnard, Justice
Opinion by: Sandee Bryan Marion, Chief Justice
an accelerated appeal from the trial court's order
terminating appellant's parental rights to his son, L.T.
two issues, appellant challenges the sufficiency of the
evidence in support of the trial court's findings that
appellant (1) engaged in conduct or knowingly placed L.T.
with persons who engaged in conduct that endangered
L.T.'s physical or emotional well-being; and (2) failed
to comply with the provisions of a court order specifically
establishing the actions necessary for appellant to obtain
the return of L.T. Tex. Fam. Code Ann. §
161.001(b)(1)(E), (O) (West Supp. 2017). We affirm the trial
court's Order of Termination because we find sufficient
evidence supports at least one statutory ground for
termination of appellant's parental rights.
Johnson, an investigator for the Department of Family and
Protective Services ("the Department"), testified
the first referral of the case to the Department was based on
neglectful supervision by the child's mother. The mother
admitted using drugs and excessive drinking of alcohol. When
the child was born prematurely, Johnson was unable to speak
to the mother because she was intubated due to blood loss
during the pregnancy. Johnson moved for exigent removal
because the mother could not make decisions for herself or
her child due to her own medical condition. L.T. was on a
feeding tube, and if any surgery was required, the mother was
unable to make those decisions. After the child's
removal, Johnson spoke to appellant for the first time.
Appellant said he assumed the child's condition was the
result of the mother's use of drugs. According to
Johnson, appellant did not try to stop her from using drugs.
Adkins, the Department caseworker assigned to L.T.'s
case, testified she came into the case in July 2016, and she
first spoke to both parents sometime in August 2016. Adkins
developed family plans for both parents, and both parents
understood the terms of the family plan. Appellant's
family plan required him to complete parenting and domestic
violence classes, maintain employment, engage in individual
counseling and drug and alcohol assessment, and maintain
housing. According to Adkins, appellant completed his
parenting class and his drug and alcohol assessment, and he
was employed and had housing. Appellant began, but did not
complete, individual counseling. Adkins said appellant
stopped his counseling in February, and he did not attend his
recommended Narcotics Anonymous ("NA") classes.
acknowledged his psychosocial evaluation recommended NA
classes, but he said he did not attend any NA classes because
he was told, after his drug evaluation, that he did not need
to attend. Appellant testified he went to six counseling
sessions, but then stopped because he thought "it was a
waste of [his] time." He also admitted he had not taken
a family violence class.
terminate parental rights pursuant to section 161.001 of the
Code, the Department has the burden to prove: (1) one of the
predicate grounds in subsection 161.001(b)(1); and (2) that
termination is in the best interest of the child.
See Tex. Fam. Code § 161.001(b)(1), (2); In
re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable
burden of proof is the clear and convincing standard. Tex.
Fam. Code § 161.206(a); 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." Tex. Fam. Code § 101.007 (West 2014).
reviewing the sufficiency of the evidence, we apply the
well-established standard of review. See id.
§§ 101.007, 161.206(a); In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual
sufficiency). Only one predicate finding under section
161.001(1) is necessary to support an order of termination
when there is also a finding that termination is in the
child's best interest. In re A.V., 113 S.W.3d at
362. One of the several grounds alleged by the Department
involved subsection (O) of Family Code section 161.001(b)(1),
which permits termination if the trial court finds by clear
and convincing evidence that the parent "failed to
comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain
the return of the child who has been in the permanent or
temporary managing conservatorship of the Department of
Family and Protective Services for not less than nine months
as a result of the child's removal from the parent under
Chapter 262 for the abuse or neglect of the child." Tex.
Fam. Code § 161.001(b)(1)(O).
WITH COURT ORDER
frequently fall short of strict compliance with a
family-service plan's requirements." In re
S.M.R., 434 S.W.3d 576, 584 (Tex. 2014). "But
whether a parent has done enough under the family-service
plan to defeat termination under subpart (O) is ordinarily a
fact question." Id. Here, appellant understood
his ability to obtain return of his son depended on his
completing his service plan and that failure to do so could
result in termination of his parental rights. Appellant's
family plan required him to attend NA meetings, which he
failed to do. He admitted he did not take any family violence
classes. More importantly, appellant stated he stopped his
counseling after six sessions because they were a waste of
on this record, we conclude the fact-finder could have formed
a firm conviction and belief that appellant knowingly failed
to comply with the provisions of a court order specifying the
actions necessary for him to obtain the return of his child.
Consequently, the record contains both legally and factually
sufficient evidence ...