Court of Appeals of Texas, Fourth District, San Antonio
the 45th Judicial District Court, Bexar County, Texas Trial
Court No. 2017PA00639 Honorable Richard Garcia, Judge
Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C.
Martinez, Justice Patricia O. Alvarez, Justice.
C. Martinez, Justice.
an accelerated appeal from an order terminating
appellant's parental rights to his child, Z.M.M. The
appellant-father challenges the sufficiency of the evidence
in support of the trial court's predicate statutory
findings as well as its finding that termination of his
parental rights was in Z.M.M.'s best interest.
See Tex. Fam. Code Ann. §§ 161.001(b)(1),
(2) (West Supp. 2017). We affirm the trial court's
March 28, 2017, the Texas Department of Family and Protective
Services ("the Department") filed a petition to
terminate appellant's parental rights. A bench trial was
conducted on February 12, 2018. At the time of trial, Z.M.M.
was two years old. Department caseworker Eletheia Hill
testified the Department received a referral alleging drug
use by Z.M.M.'s mother in the home where Z.M.M. was
residing. Mother admitted to using methamphetamines and
marijuana at the time of inquiry. According to Hill,
appellant claimed to know that Z.M.M.'s mother was
"using something," but made no efforts to remove
Z.M.M. from the situation.
of his family service plan, appellant was required to
participate in a parenting class; obtain and submit proof of
housing; remain drug and alcohol free; and complete a drug
and alcohol assessment, as well as any recommended treatments
the assessment recommended. Hill testified that appellant
completed his parenting class and his assessment, but did not
complete the recommended outpatient therapy. Hill also
testified that appellant told her he recently obtained
housing, but that because appellant would not give her his
address, she had been unable to confirm where he was living.
When Hill asked why appellant was not completing the
conditions of his service plan, appellant claimed he did not
want to take time off work and that he did not have
transportation. According to Hill, the Department offered
appellant transportation and extra time to complete his
caseworker believed it was in Z.M.M.'s best interest for
appellant's parental rights to be terminated so that
Z.M.M. would have the opportunity to move forward with his
foster parents through formal adoption. The foster parents
and Z.M.M. are bonded; they provide Z.M.M. with a safe and
stable home; they have demonstrated that they are able to
take care of Z.M.M.; and Z.M.M. has lived with them since
April 2017, which is longer than the total amount of time
appellant ever lived with Z.M.M. Hill also characterized
appellant's visits with Z.M.M. as "off and on,"
with only two visits in the last five months.
also testified at the hearing. Appellant admitted to knowing
Z.M.M.'s mother was using drugs, but did not get involved
because Z.M.M.'s mother and her current boyfriend made it
difficult for him to see Z.M.M. Appellant also admitted to
using marijuana within six months of trial. Appellant
testified that for a period of time he did not have a stable
job or a place to stay, but that he was currently working in
a restaurant and was living with a friend. Appellant wants to
be reunited with Z.M.M., but admitted he did not have a
stable home and would not be able to presently provide Z.M.M.
parent-child relationship may be terminated only if the trial
court finds by clear and convincing evidence one of the
predicate grounds enumerated in section 161.001(b)(1) and
that termination is in the child's best interests.
Id. § 161.001(b)(1), (2). Clear and convincing
evidence requires "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."
Id. § 101.007 (West Supp. 2017). We review the
legal and factual sufficiency of the evidence under the
standards of review established by the Texas Supreme Court in
In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002).
first issue, appellant challenges the sufficiency of the
evidence supporting the trial court's predicate findings
under section 161.001(b)(1)(D), (N), and (O). See
id. § 161.001(b)(1)(D), (N), (O). The trial court
concluded there was clear and convincing evidence that
appellant: (1) had knowingly placed or knowingly allowed the
child to remain in conditions or surroundings which endanger
the physical or emotional well-being of the child; (2)
constructively abandoned the child; and (3) failed to comply
with the provisions of a court order specifically
establishing the actions necessary for appellant to obtain
the return of child. Id.
(O) allows termination of the parent-child relationship when
a parent has failed to satisfy any of the conditions set out
in the family service plan. Id. §
161.001(b)(1)(O). Texas courts generally take a strict
approach to subsection (O)'s application. In re
D.N., 405 S.W.3d 863, 877 (Tex. App.-Amarillo 2013, no
pet.). In construing subsection (O), courts only look for a
parent's failure to comply and do not measure a
parent's "degree of compliance" or
"quantity of failure." Id. In this case,
appellant's service plan required him to: (1) obtain and
submit proof of stable housing; (2) participate in a
parenting class; and (3) complete a drug and alcohol
assessment, "follow all recommendations of the
assessment including but not limited to inpatient drug
treatment," and remain drug and alcohol free. The
evidence shows appellant completed a parenting class and a
drug and alcohol assessment; however, appellant did not
"follow all recommendations of the assessment"
because he failed to complete the recommended outpatient
therapy. Appellant also failed to remain drug free, admitting
that he had used marijuana during the pendency of the case.
Lastly, appellant testified to recently moving in with a
friend, but he failed to provide the caseworker with an
address or any other proof of stable housing. Although
appellant completed some of the requirements on his service
plan, the evidence conclusively shows he did not comply with
all of the requirements of his service plan. See In re
M.C.G., 329 S.W.3d 674, 676 (Tex. App.-Houston [14th
Dist.] 2010, pet. denied) (determining a parent's failure
to complete just one requirement of the service plan supports
termination); In re T.T., 228 S.W.3d 312, 319 (Tex.
App.-Houston [14th Dist.] 2007, pet. denied) (affirming that
substantial or partial compliance with a service plan is
insufficient to avoid termination). Accordingly, ...