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In re M.M.

Court of Appeals of Texas, Second District, Fort Worth

April 11, 2019

In the Interest of M.M., a Child

          On Appeal from the 90th District Court Young County, Texas Trial Court No. 33031

          Before Sudderth, C.J.; Gabriel and Kerr, JJ.

          MEMORANDUM OPINION

          Elizabeth Kerr Justice.

         After a bench trial, the trial court terminated Father's and Mother's parental rights to their daughter, M.M.[1] Both appealed, and in a joint brief, they argue three points: in the first two, they assert that the evidence is legally and factually insufficient, respectively, to prove grounds, and in the third, they maintain that the evidence is factually insufficient to prove that termination was in M.M.'s best interest. We affirm.

         The Trial Court's Findings

         The trial court terminated both Father's and Mother's parental rights on the same bases:

• Each failed to comply with the provision of a court order that specifically established the actions necessary to obtain the return of M.M., who had 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 M.M.'s removal from the parents under Chapter 262 for the abuse or neglect of M.M; and
• Terminating the parent-child relationship was in M.M.'s best interest.

See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (2). These are the findings that Father and Mother attack.

         Standard of Review

         A. Generally

         In a termination case, the State seeks not just to limit parental rights but to erase them permanently-to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except the child's right to inherit. Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, "[w]hen the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures." In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92 (1982)).

         Termination decisions must be supported by clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b), § 161.206(a); In re E. N.C. , 384 S.W.3d 796, 802 (Tex. 2012). Due process demands this heightened standard because "[a] parental rights termination proceeding encumbers a value 'far more precious than any property right.'" E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758-59, 102 S.Ct. at 1397). Evidence is clear and convincing if it "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; E. N.C. , 384 S.W.3d at 802.

         For a trial court to terminate a parent-child relationship, the party seeking termination must establish, by clear and convincing evidence, two things: (1) the parent's actions satisfy just one of the many grounds listed in family code § 161.001(b)(1), and (2) termination is in the child's best interest under § 161.001(b)(2). Tex. Fam. Code Ann. § 161.001(b)(1), (2); E. N.C. , 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; that is, termination may not be based solely on the child's best interest as determined by the factfinder. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.-Fort Worth 2012, no pet.).

         B. Legal Sufficiency

         In evaluating the evidence for legal sufficiency in parental-termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the Department proved both the particular ground for termination and that termination is in the child's best interest. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002); see In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the light most favorable to the finding and judgment, and we resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so. J.F.C., 96 S.W.3d at 266. We also must disregard all evidence that a reasonable factfinder could have disbelieved, in addition to considering undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See id. In doing our job, we cannot weigh witness-credibility issues that depend on the witness's appearance and demeanor because that is the factfinder's province. J.P.B., 180 S.W.3d at 573. And even when credibility issues appear in the appellate record, we defer to the factfinder's determinations as long as they are not unreasonable. Id.

         C. Factual Sufficiency

         We must perform "an exacting review of the entire record" in determining whether the evidence is factually sufficient to support terminating a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In reviewing the evidence for factual sufficiency, we give due deference to the factfinder's findings and do not supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent violated an alleged ground and that termination was in the child's best interest. Tex. Fam. Code Ann. § 161.001(b); see In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). 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 in the truth of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

         The Grounds Findings

         A. The evidence supporting the § 161.001(b)(1)(O) findings legally suffices.

         In their first point, Father and Mother argue that "because the Department did not introduce the order [that they failed to comply with] into evidence or ask either the associate judge or the trial judge to take judicial notice of the court's file, the order is not in evidence and, consequently, the evidence is legally insufficient to sustain the trial court's judgment of termination." We disagree. The record shows that Associate Judge Alyce Bondurant took judicial notice of the court's file. And the record shows that Judge Stephens Bristow similarly took judicial notice of the court's file at the de novo hearing. (Father and Mother appealed the associate judge's ruling for a de novo hearing.) We hold that the evidence legally suffices and overrule Father and Mother's first point. See J.F.C., 96 S.W.3d at 266.

         B. The evidence supporting the § 161.001(b)(1)(O) findings factually suffices.

         Parents must comply with each requirement of a court-ordered service plan; complying merely substantially is not good enough to avoid termination under subsection (O).[2] In re M.C., No. 02-15-00290-CV, 2016 WL 354186, at *4 n.8. (Tex. App.-Fort Worth Jan. 28, 2016, no pet.) (mem. op.); In re C.S., No. 02-14-00386-CV, 2015 WL 1869443, at *10-11 (Tex. App.-Fort Worth Apr. 23, 2015, no pet.) (mem. op.). Subsection (O) speaks only of a parent's failure to comply with a court order, without reference to quantity of failure or degree of compliance, and it does not provide a means of evaluating partial or substantial compliance with a plan. In re N.A., Nos. 02-13-00345-CV, 02-13-00346-CV, 2014 WL 814195, at *5 (Tex. App.-Fort Worth Feb. 28, 2014, no pet.) (mem. op.); In re G.C., No. 02-17-00259-CV, 2018WL 547784, at *16 (Tex. App.-Fort Worth Jan. 25, 2018, no pet.) (mem. op.).

         The trial court adopted Father and Mother's service plan as its own order. Despite Father's and Mother's complying with many portions of the court-ordered service plan, the evidence also showed that they failed to comply with several of its provisions.

         For example, the service plan required Father and Mother to provide identifying information for anyone living in their home; Father admitted that his daughter lived with them and that he did not tell the Department. Mother denied that Father's daughter moved in with them but admitted that she "visited for a while." As the factfinder, the trial court was free to reconcile this conflict by believing Father and disbelieving Mother. See In re A.S., Nos. 02-18-00235-CV, 02-18-00236-CV, 2019WL 237561, at *9 (Tex. App.-Fort Worth Jan. 17, 2019, pet. denied) (mem. op.); In re T.N., 180 S.W.3d 376, 382-83 (Tex. App.-Amarillo 2005, no pet.). This violation alone supports the (O) findings for each parent. But the Department cited other instances.

         The service plan required both parents to complete a psychological evaluation and to follow its recommendations. And as part of their psychological evaluations, both were recommended to undergo individual counseling. The caseworker testified that neither parent had addressed existing paranoia and trust issues. At least as to Mother, the record showed that she balked at the idea of counseling. As for Father, the caseworker expressed frustration with Father's attitude that he had nothing more to learn.

         Next, M.M. had medical appointments and needed medical care; the service plan required Father and Mother to participate in them. But Father and Mother missed four or five cardiology appointments, and they missed both urology appointments. Although both parents could argue partial compliance, subsection (O), as it applied to them, made no allowances for partial compliance. See N.A., 2014 WL 814195, at *5; G.C., 2018 WL 547784, at *16.

         Another example the Department gave was that the service plan required Father and Mother to complete an MHMR[3] assessment and follow all its recommendations. The caseworker testified that Father had complied with this requirement but Mother had not. Although the MHMR assessment made no recommendations with regard to Mother, the caseworker explained that that was because Mother had made it clear that she did not want or need any services.

         And despite this case's presenting no substance-abuse issues, the caseworker testified that (unlike Father) Mother did not fully comply with her substance-abuse assessment because she did not comply with the MHMR assessment, which was "boot-strapped": that is, the substance-abuse assessment recommended referring Mother to MHMR and following its recommendations, and because Mother did not comply with the MHMR recommendations, she did not comply with the substance-abuse assessment.

         In light of the entire record, we hold that a factfinder could reasonably form a firm conviction or belief that both parents violated the subsection (O) ground and that the evidence thus factually suffices. See H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 25. We overrule Father and Mother's second point.

         The Best-Interest Findings A. Best Interest

         We acknowledge the strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). To determine the child's best interest, we review the entire record. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence used to show a subsection (1) ground may be probative when determining best interest under subsection (2). Id. at 249; C.H., 89 S.W.3d at 28. Nonexclusive factors that the factfinder may use when determining the child's best interest include

• the child's desires;
• the child's emotional and physical needs now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the ...

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