Court of Appeals of Texas, Ninth District, Beaumont
Submitted on November 21, 2017
Appeal from the County Court at Law No. 3 Montgomery County,
Texas Trial Cause No. 15-09-09360-CV
McKeithen, C.J., Kreger and Johnson, JJ.
McKEITHEN Chief Justice.
the father of the minor child E.C.C.,  appeals from an
order terminating his parental rights. The jury found, by
clear and convincing evidence, that statutory grounds exist
for termination of appellant's parental rights, and that
termination of appellant's parental rights is in the best
interest of E.C.C. See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E), (H), (N), (Q), (2) (West Supp. 2017).
In two appellate issues, appellant argues that (1) the
State's failure to prepare a family plan of service
denied him due process and (2) the trial court lacked
jurisdiction. We affirm the trial court's order.
caseworker Veronica Stubblefield testified that she received
the case involving E.C.C. when it was transferred from
Anderson County to Montgomery County in December of 2016.
Stubblefield explained that E.C.C. was removed from her
grandmother's home in July 2016 because multiple family
members were using drugs around her, and there was also
family violence. According to Stubblefield, E.C.C. tested
positive for methamphetamine, as did two family members.
testified that appellant was incarcerated when E.C.C. was
removed, and appellant had been incarcerated for possession
of methamphetamine since 2014, before E.C.C.'s birth.
Stubblefield testified that appellant was sentenced to ten
years of confinement, and he had been denied parole in April
2017. Stubblefield explained that appellant has never seen or
spoken to E.C.C., and that appellant would have to be
released from prison to be considered as a placement for
E.C.C. According to Stubblefield, CPS does not usually set
visitation with parents who are incarcerated. Stubblefield
testified that she did not know whether the trial court's
order naming CPS the temporary managing conservator of E.C.C.
was sent to appellant.
testified that although CPS policy and the Family Code
require a service plan to be developed for each parent within
a specific period of time, a service plan was not timely
prepared for appellant. According to Stubblefield, the
caseworker from Anderson County informed appellant regarding
classes he could take in prison. Stubblefield explained that
she spoke with appellant by phone, and appellant informed her
that he did not have a service plan, so she eventually
prepared a service plan for appellant approximately six weeks
before the permanency hearing. According to Stubblefield, the
service plan stated that it would be amended once appellant
is released from prison and set forth some items that might
be required of appellant, such as psychological evaluation
and drug screening, among other things. Stubblefield
testified that she never attempted to return the child to
appellant because appellant is incarcerated. Stubblefield
explained that CPS was not seeking termination due to failure
to complete a service plan.
testified that prior to his incarceration, his "source
of income was through the illegal sale of drugs."
According to appellant, when he was arrested in April of
2014, he had been living in motels for two or three weeks,
and prior to that time, he was in a faith-based drug
rehabilitation center. Appellant explained that he is
incarcerated because he was convicted of possession of
methamphetamines. In addition, appellant testified that he
was arrested when E.C.C.'s mother handed him a bag of
methamphetamine and instructed him to run, and appellant
explained that he told E.C.C.'s mother, "you better
get clean and take care of my baby." Appellant explained
that E.C.C.'s mother had previously told him she might be
pregnant, but they were not sure "because she has
irregular periods due to her use of methamphetamines."
Appellant testified that because he is incarcerated, he was
not present when E.C.C. was born, and he has never held, fed,
or spoken to the child. Appellant testified that he has been
denied parole twice, and he explained that his projected
release date is June 13, 2018.
to appellant, when he was notified that the child was in the
care of CPS, he asked for a family service plan because legal
research he had done in prison indicated that he should have
a family service plan. Appellant stated that he has
"[s]till never received one." Appellant asked the
trial judge not to terminate his parental rights because he
wanted the child to be placed with appellant's mother.
According to appellant, CPS did not give his family a fair
chance to have the child placed with them, and no one has
explained why. Appellant opined that his parents could
provide a safe, stable environment for the child. Appellant
testified that he does not feel that he has abandoned the
child, and he explained that during his incarceration, he has
written to the child and tried to support the child mentally
Appointed Special Advocate ("CASA") supervisor
Marilyn McQueeny testified that CASA is a volunteer-driven
organization whose job is to make recommendations to the
court regarding the best interest of the child, with the
ultimate goal of insuring that every child is placed in a
safe, stable, nurturing permanent home. McQueeny explained
that CASA's recommendation for E.C.C.'s best interest
was termination of both parents' rights and to allow
E.C.C. to be adopted. CASA volunteer Shari Wood testified
that E.C.C. had grown happier and more trusting of people in
E.C.C.'s current placement, and Wood recommended
termination of both parents' rights and adoption of
first issue, appellant contends the State's failure to
prepare a family plan of service for him denied him due
process. Appellant cites the provision of the Family Code
that provides that CPS shall file a service plan not later
than the forty-fifth day after the date the court renders a
temporary order appointing CPS as the child's temporary
managing conservator. See Tex. Fam. Code Ann. §
263.101 (West Supp. 2017). In addition, appellant cites other
provisions of the Family Code that require CPS to designate
personnel to ensure compliance with the service plan, govern
what a service plan must contain, provide for the development
of a service plan jointly by the child's parents and a
CPS representative, require that the court must evaluate the
parties' compliance with the service plan, and require
that CPS must prepare a permanency plan that includes
compliance with the service plan. See Tex. Fam. Code
Ann. § 263.005 (West 2014); Id. §§
263.102, 263.103(a), 263.303(b), 263.3025(b) (West Supp.
2017). Appellant acknowledges in his brief that "[c]ase
law does ...