Court of Appeals of Texas, Ninth District, Beaumont
Submitted on April 15, 2019
Appeal from the 88th District Court Hardin County, Texas
Trial Cause No. 59009
McKeithen, C.J., Kreger and Horton, JJ.
CHARLES KREGER JUSTICE.
L.H. (Father), appeals the trial court's order
terminating his parental rights to A.H. Father argues
that the trial court erred when it (1) initially ordered the
removal of A.H. without, among other factors, showing an
urgent need or that A.H.'s physical health was in danger;
(2) when it terminated his parent-child relationship based on
his failure to comply with the service plan, and (3)
determined that terminating his parent-child relationship was
in the best interest of A.H. We affirm the trial court's
of Proof and Standards of Review
rights can be terminated upon proof by clear and convincing
evidence that the parent committed an act prohibited by
section 161.001(b)(1) of the Family Code and termination is
in the best interest of the child. Tex. Fam. Code Ann. §
161.001(b)(1), (2) (West Supp. 2018); In re J.O.A.,
283 S.W.3d 336, 344 (Tex. 2009); In re J.L., 163
S.W.3d 79, 84 (Tex. 2005). Due to the severity and permanency
of the termination of parental rights, the burden of proof is
heightened to the clear and convincing evidence standard.
See Tex. Fam. Code Ann. § 161.001(b) (West
Supp. 2018); In re J.F.C., 96 S.W.3d 256, 265-66
(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 Ann. § 101.007 (West 2014). This is an
intermediate standard and falls between the preponderance
standard of ordinary civil proceedings and the reasonable
doubt standard in criminal proceedings. State v.
Addington, 588 S.W.2d 569, 570 (Tex. 1979); In re
D.T., 34 S.W.3d 625, 630 (Tex. App.-Fort Worth 2000,
pet. denied). Therefore, the proof must be more than merely
the greater weight of the credible evidence but need not be
unequivocal or undisputed. Addington, 588 S.W.2d at
570. This heightened burden of proof results in a heightened
standard of review. In re J.F.C., 96 S.W.3d at
reviewing the legal sufficiency of the evidence in a parental
termination case, we must consider "all the evidence in
the light most favorable to the finding to determine whether
a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true." In re
J.O.A., 283 S.W.3d at 344 (quoting In re
J.F.C., 96 S.W.3d at 266). We assume the factfinder
resolved disputed facts in favor of its finding if a
reasonable factfinder could do so, and we disregard all
evidence that a reasonable factfinder could have disbelieved.
Id. (quoting In re J.F.C., 96 S.W.3d at
reviewing the factual sufficiency of the evidence in a
parental termination case, we "give due consideration to
evidence that the factfinder could reasonably have found to
be clear and convincing." In re J.F.C., 96
S.W.3d at 266. We must determine "'whether the
evidence is such that a factfinder could reasonably form a
firm belief or conviction about the truth of the State's
allegations.'" Id. (quoting 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, then the evidence is
factually insufficient." Id. We give due
deference to the factfinder's findings, and we cannot
substitute our own judgment for that of the factfinder.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The
factfinder is "'the sole arbiter when assessing the
credibility and demeanor of witnesses.'"
Id. at 109 (quoting In re J.L., 163 S.W.3d
record shows that A.H. was eight years old and living with
her mother(Mother), when the Department of Family and
Protective Services (the Department) first became involved in
this case. A.H. was removed from her mother's care in
August 2018, due to Mother's drug use and erratic
behavior. Father was not living with A.H. when the removal
occurred. Department Caseworker Boyd testified that at the
time of A.H.'s removal, Father was the non-offending
parent and not the reason for the removal by the Department.
After A.H. was removed from Mother's care, Father was
contacted by the Department and was provided a service plan
for reunification with the child. The service plan was
created, in part, to address Father's mental health
issues and drug usage. Father admitted he was aware of
Mother's behavior and drug usage, and he was aware the
child was living with Mother in that environment. The
Department's conditions for reunification with the child
required Father to complete a service plan. The record shows
numerous violations of the service plan by Father, and Boyd
testified that at the time of the trial in January 2019,
Father was noncompliant with the service plan.
detailed several areas of the service plan that Father failed
to abide by or complete. Boyd stated that initially Father
made significant contact with the Department and attempted to
complete his service plan. Boyd testified that the Department
was concerned about Father's drug addictions and set out
requirements in the service plan for Father, including
outpatient therapy and random drug testing, in an attempt to
address his drug usage. Father did not complete outpatient
services as required by the service plan to address his drug
usage. In addition, Father's service plan required that
he have a negative drug test to visit A.H. While Father had a
few negative drug tests, Father tested positive more than
once for illegal narcotics, including methamphetamine and
cocaine, resulting in the suspension of his visitations.
After Father tested positive for cocaine use in September
2018, the Department requested he submit to another drug test
in October, and Father failed to appear for testing. Boyd
stated that she had recently spoken to Father, and he
admitted to using methamphetamines in November and failed to
submit to a drug test before trial.
stated that Father is bipolar, and the service plan required
him to address his mental health. In a conversation with
Boyd, Father admitted that he was not "taking care"
of his mental health, including taking his medication. Boyd
expressed concerns with Father's unstable home life and
infrequent communication with the Department. During the
pendency of this case, Father moved to Amarillo to live with
Mother's sister-in-law, a person, according to Boyd, who
had been accused of sexual abuse by Mother's other child.
Boyd stated that in October 2018, contact with Father became
very erratic, and it was difficult to maintain communication
with him. Any contact was often hindered by the fact that
Father changed phone numbers frequently. In November 2018,
Father contacted a caseworker in Amarillo and started to work
on his service plan when he was arrested and transferred to
Jefferson County. According to Boyd, when Father was released
from Jefferson County, he returned to Amarillo and was
"unsuccessfully discharged for his drug counseling"
while trying to complete his outpatient treatment.
stated that Father loves A.H. and "does want his
daughter back" even though he makes "bad decisions
on his drug use[.]"Boyd testified that she believed
Father's rights should be terminated because Father's
nomadic lifestyle would not provide A.H. with a stable home
life, Father failed to comply with his medications and
treatment for his mental health, Father's poor decision
making could place A.H. in potentially harmful relationships,
and Father cannot "maintain a lifestyle that doesn't
put [A.H.] in harm's way of drug use."
did not appear at trial but was represented by trial counsel.
Boyd told the trial court that she stressed to Father the
importance of appearing for trial because his parental rights
could be terminated, and Father told her he
"works…odd end jobs and he just can't miss
work[.]" After a bench trial, the trial court signed an