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In re V.A.G.

Court of Appeals of Texas, Fourth District, San Antonio

November 13, 2019

IN THE INTEREST OF V.A.G., C.M.G., and M.R.G., Children

          From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2018-PA-01486 Honorable Karen H. Pozza, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice.

          MEMORANDUM OPINION

          Rebeca C. Martinez, Justice.

         Appellant ("Mother") appeals the trial court's order terminating her parental rights to V.A.G., C.M.G., and M.R.G. Mother challenges the legal and factual sufficiency of the evidence to support the trial court's findings on the statutory grounds for termination. See Tex. Fam. Code Ann. § 161.001(b)(1). We affirm.

         Background

         Mother and J.G.[1] are the parents of three children: V.A.G., C.M.G., and M.R.G. On July 9, 2018, the Texas Department of Family and Protective Services (the "Department") filed a petition requesting temporary managing conservatorship of the children and sought termination of Mother's parental rights. The trial court granted the Department's request and appointed the Department as temporary conservator of the children. During the pendency of the case, the trial court entered orders pertaining to the actions necessary for Mother to obtain the return of her children. On June 24, 2019, the trial court held a bench trial and, following trial, terminated Mother's parental rights. The trial court determined there was clear and convincing evidence that termination was in the children's best interest and that Mother (1) failed to comply with the provisions of a court order specifically establishing the actions necessary for her to obtain the return of her children and (2) used a controlled substance in a manner that endangered the health or safety of the children and (a) failed to complete a court-ordered substance abuse treatment program or (b) after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (P). Mother timely appealed.

         Discussion

         On appeal, Mother challenges the sufficiency of the evidence to support the trial court's findings under sections 161.001(b)(1)(O) and (P) of the Texas Family Code. See id. A parent-child relationship can only be terminated if the trial court finds by clear and convincing evidence that the parent committed an act prohibited by section 161.001(b)(1) of the Texas Family Code and that termination is in the best interest of the child. Id. § 161.001(b)(1), (2). Only one predicate finding under section 161.001(b)(1) is necessary to support a judgment of termination when the trial court also finds that termination is in the best interest of the child. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Mother does not challenge the trial court's finding that termination of her parental rights is in the best interest of the children.

         When reviewing the legal and factual sufficiency of the evidence, we apply the standards of review established by the Texas Supreme Court. See In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). In evaluating the evidence for legal sufficiency, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the challenged ground for termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam). 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. Id. We disregard all evidence that a reasonable factfinder could have disbelieved, and we consider undisputed evidence even if it is contrary to the finding. Id. In reviewing the evidence for factual sufficiency, we give due deference to the factfinder's findings and do not supplant the verdict with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). We determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the challenged finding is true. See In re C.H., 89 S.W.3d at 28.

         A. Section 161.001(b)(1)(O) Finding

         To terminate parental rights pursuant to subsection O, the Department must show that: (1) the child was removed under chapter 262 of the Texas Family Code for abuse or neglect, (2) the child has been in the permanent or temporary conservatorship of the Department for at least nine months, and (3) the parent "failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(O). "Texas courts generally take a strict approach to subsection (O)'s application." In re S.J.R.-Z., 537 S.W.3d 677, 690 (Tex. App.-San Antonio 2017, pet. denied) (quoting In re C.A.W., No. 01-16-00719-CV, 2017 WL 929540, at *4 (Tex. App.-Houston [1st Dist.] Mar. 9, 2017, no pet.) (mem. op.)). "Courts do not measure the 'quantity of failure' or 'degree of compliance'" with a court order. Id. (quoting In re D.N., 405 S.W.3d 863, 877 (Tex. App.-Amarillo 2013, no pet.)). "A parent's failure to complete one requirement of her family service plan supports termination under subsection (O)." In re D.D.R., No. 04-18-00585-CV, 2019 WL 360657, at *2 (Tex. App.-San Antonio Jan. 30, 2019, pet. denied) (mem. op.) (internal quotation marks and brackets omitted) (quoting In re J.M.T., 519 S.W.3d 258, 267 (Tex. App.- Houston [1st Dist.] 2017, pet. denied)).

         In her brief, Mother does not challenge the elements of subsection O that her children were removed for abuse or neglect or that her children were in the Department's care for at least nine months. Mother only challenges the existence of a court order establishing actions necessary for the return of her children. Mother does not dispute that she failed to comply with the Department's service plan; she argues that because the service plan was not filed with the court, admitted into evidence at trial, or made an order of the court, the Department failed to meet its burden under subsection O.

         When a court signs an order appointing the Department as temporary managing conservator under chapter 262 of the Texas Family Code, as the trial court did here, the Department is required to file a service plan with the court no later than forty-five days after the order was rendered. See Tex. Fam. Code Ann. § 263.101. The trial court "shall incorporate the original and any amended service plan into the orders of the court." Id. § 263.106.

         In this case, no document entitled "service plan" was ever filed with the trial court clerk or admitted into evidence. However, specific requirements for Mother to obtain the return of her children appear in a "Temporary Order Following Adversary Hearing," signed by the trial court on July 19, 2018. This order states that Mother appeared at an adversary hearing, held on July 19, 2018, in person ...


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