Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 90th District Court Young County, Texas Trial
Court No. 33031
Sudderth, C.J.; Gabriel and Kerr, JJ.
Elizabeth Kerr Justice.
bench trial, the trial court terminated Father's and
Mother's parental rights to their daughter,
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.
Trial Court's Findings
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.
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)).
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.
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.).
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.
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
The evidence supporting the § 161.001(b)(1)(O) findings
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
The evidence supporting the § 161.001(b)(1)(O) findings
must comply with each requirement of a court-ordered service
plan; complying merely substantially is not good enough to
avoid termination under subsection (O). 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.).
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.
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
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.
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.
example the Department gave was that the service plan
required Father and Mother to complete an MHMR 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.
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
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.
Best-Interest Findings A. Best Interest
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
• the programs available to assist these individuals to
promote the ...