COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00004-CV

IN THE INTEREST OF T.L.R., 

MINOR CHILD

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FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY

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MEMORANDUM OPINION1

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In eight issues, appellant D.S. appeals the trial court’s order terminating his 

parental rights to his son, Terrence Louis Rogers.2 He contends that the 

evidence is legally and factually insufficient to support the grounds for termination 

and the trial court’s finding that termination is in the child’s best interest. We 

affirm.

Standard of Review

 

1See Tex. R. App. P. 47.4.

2

In accordance with Texas Rule of Appellate Procedure 9.8, we have 

referred to the child using a pseudonym. Tex. R. App. P. 9.8.
2

Termination decisions must be supported by clear and convincing 

evidence. Tex. Fam. Code Ann. § 161.001 (West 2011); see also § 161.206(a) 

(West 2008). 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.” Id. § 101.007 (West 2008). Due process demands this 

heightened standard because termination results in permanent, irrevocable 

changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); 

see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for 

termination and modification).

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 grounds for termination were 

proven. 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. Id. 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. Id. We consider 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. Id.

We cannot weigh witness credibility issues that depend on the appearance 

and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573, 
3

574. 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. at 

573.

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). We determine whether, on the entire 

record, a factfinder could reasonably form a firm conviction or belief that the 

parent engaged in the behavior described in one of the subsections of section 

161.001(1) and that the termination of the parent-child relationship would be in 

the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re C.H., 89 

S.W.3d 17, 28 (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. In 

re H.R.M., 209 S.W.3d at 108.

Sufficiency of the Evidence on Failure to Comply with Service Plan

In his seventh and eighth issues, appellant contends that the evidence is 

legally and factually insufficient to support the jury’s finding that he failed to 

comply with the requirements of a court-ordered service plan.

Applicable Law and Facts

To terminate parental rights based on Section 161.001(1)(O), a trial court 

must find by clear and convincing evidence that the parent failed to comply with 
4

the provisions of a court order that specifically established the actions necessary 

for the parent to obtain the return of the child who has 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 the child’s removal from the 

parent under family code chapter 262 for the abuse or neglect of the child. Tex. 

Fam. Code Ann. § 161.001(1)(O). Appellant concedes that Terrence was in the 

Department’s custody for at least nine months and does not dispute that he was

removed as a result of abuse or neglect. Instead, he argues that the Department 

did not meet its burden of proof to establish that he failed to comply with the trial 

court’s order requiring him to complete the requirements of the service plan.3

Terrence was born on July 16, 2009. In June 2010, appellant went to jail 

after being charged with an offense for which the grand jury later no-billed him. 

While he was in jail, the Department removed Terrence from his mother (Mother) 

after police found her passed out in a car that was parked in an alley, with the 

windows rolled up and no air conditioning on.

4

 Terrence was in the back seat 

with his cousins, tied into his carseat because the straps were broken.

Appellant was released from jail in September 2010. He testified that as 

soon as he got out of jail, he and his mother went to the Department’s offices to 

 

3According to appellant, “[t]his is the Department’s best termination ground 

but basic ideas of fairness require it to be reversed.”

4Mother signed an affidavit relinquishing her rights and did not appeal the 

termination order.
5

find out how to get Terrence returned to him. But appellant had not yet been 

confirmed as Terrence’s father, and he had requested that DNA testing be 

performed to confirm whether Terrence was his biological child. Test results 

confirmed paternity in October 2010. A Department supervisor testified that a 

service plan should have been prepared at that time, but the caseworker 

assigned to the case did not prepare one until January 2011. That service plan, 

which the trial court incorporated as an order, required appellant to, among other 

things, comply with all current and future court orders, avoid all criminal activity 

and any persons engaging in criminal activity including persons using illegal 

drugs, maintain and obtain a legal source of income, obtain and maintain a safe 

and stable home environment, complete random drug screens on the date 

requested, and test negative for illegal substances. Appellant signed the service 

plan.

Appellant admitted at trial that he had failed to comply with all of the court 

orders in this case.

In particular, appellant admitted that he had failed to obtain stable 

employment and housing. He explained that he could not find steady work 

because he did not have an ID card; although Department workers tried to help 

him obtain his Oklahoma birth certificate and other documents he would need to 

obtain an ID card, he was still waiting on his birth certificate at the time of trial. 

Appellant testified that after he got out of jail, he lived in a house next door to his 

mother that she owned, but the Department made him move because his 
6

brother, whom the Department suspected was a drug user, lived with his mother 

next door, and they were concerned about the situation. Without living in the 

house owned by his mother, appellant could only afford to sleep at friends’ 

houses on a temporary basis or in a hotel when he could get the money. But 

appellant testified that the Department allowed him to move back into the house 

next to his mother’s in January 2011, and except for when he went to rehab in 

March and April 2011, he continued to live there until the time of trial. At the time 

of trial, he paid utilities for that house but no rent. He did not have a full-time job;

instead, he worked at odd jobs.

Appellant also admitted that he had smoked marijuana before going to 

rehab in March 2011, but he denied using methamphetamine. The intake from 

rehab, however, shows that he told the counselor he had smoked both marijuana 

and methamphetamine in the thirty days before attending rehab and that he had 

used drugs multiple times in the week before rehab. He said he smoked the 

marijuana because he was depressed about his friend’s committing suicide and 

his son’s being in the Department’s care. Mother testified that she used 

methamphetamine with appellant before and after he went to rehab.

Appellant admitted that he did not submit to random drug screens and did 

not submit to hair follicle testing ordered by the trial court5in January 2011; he 

 

5When appellant was in the office and was asked for a hair sample, they 

could not find one because he had shaved all his body. Appellant said that was 

his practice. The trial court’s order stated that appellant’s failure to provide a 

specimen would be deemed a positive result.
7

said he tried to schedule weekly drug tests with CPS instead to build up a 

positive case history. The Department supervisor testified that appellant never 

requested weekly drug tests, and although he had refused every other drug test 

requested by the Department, he specifically requested one on July 29, 2011. 

She thought he must have believed he would be clean that day and not the 

others. The Department was never able to get a baseline drug test to compare 

to future tests. Appellant admitted being an addict. He also failed to provide the 

Department with a medical release so that they could obtain medical and mental 

health records.

Mother testified that in January 2011, appellant came into the place where 

she was then living, pushed her, and cut the finger of a man she was living with. 

She was pregnant with appellant’s second child at the time. In February 2011, 

he showed up at Dollar General where she was shopping and hit her on the side 

of her face. In June 2011, he hit her on the side of her face with a beer bottle 

and left hand marks on her arm. But Mother testified that she would not press 

charges against appellant because she loved him. She said that there had been 

only a couple of instances of domestic violence in the past before Terrence’s 

removal but things “really went downhill” after that.

The Department supervisor testified that she participated in making 

appellant’s service plan and going over it with him. She also testified that the 

Department made information available to appellant to help him complete his 

service plan, but “[t]here was very little cooperation.”
8

Analysis

Despite appellant’s admission that he failed to comply with his service 

plan, his argument is that he substantially complied with the material terms of the 

plan. But it is well settled that the family code does not provide for excuses for 

failure to complete court ordered services, nor does it consider “substantial 

compliance” to be the same as completion. See In re S.G., No. 02-11-00122-CV, 

2011 WL 5527737, at *4 (Tex. App.––Fort Worth Nov. 10, 2011, no pet.) (mem. 

op.); In re M.C.G., 329 S.W.3d 674, 675–76 (Tex. App.––Houston [14th Dist.] 

2010, pet. denied) (op. on reh’g). Rather, any excuse for failing to complete a 

family services plan goes only to the best interest determination. In re S.G., 

2011 WL 5527737, at *4.

Based on the above evidence, including appellant’s explicit admissions 

that he failed to complete certain aspects of the service plan, we conclude and 

hold that the evidence is legally and factually sufficient to support the jury’s 

finding that appellant failed to comply with a court-ordered service plan as set 

forth in family code section 161.001(1)(O). See In re T.N.F., 205 S.W.3d 625, 

630–31 (Tex. App.––Waco 2006, pets. denied), overruled in part on other 

grounds by In re A.M., No. 10-12-00029-CV, 2012 WL 3242733 (Tex. App.—

Waco Aug. 9, 2012, no pet. h.) (mem.op.). We overrule appellant’s seventh and 

eighth issues.

Because we have held that the evidence is sufficient to support the jury’s 

findings on at least one of the conduct grounds, we need not address appellant’s 
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second through sixth issues challenging the other conduct grounds found by the 

jury. See In re S.B., 207 S.W.3d 877, 886 (Tex. App.––Fort Worth 2006, no 

pet.).

Sufficiency of the Evidence on Best Interest

In his first issue, appellant contends that the evidence is legally and 

factually insufficient to support the jury’s finding that termination was in 

Terrence’s best interest.

Applicable Law

There is a 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). Prompt and 

permanent placement of the child in a safe environment is also presumed to be 

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). The 

following factors should be considered in evaluating the parent’s willingness and 

ability to provide the child with a safe environment:

(1) the child’s age and physical and mental vulnerabilities;

(2) the frequency and nature of out-of-home placements;

(3) the magnitude, frequency, and circumstances of the harm to the child;

(4) whether the child has been the victim of repeated harm after the initial report 

and intervention by the department or other agency;

(5) whether the child is fearful of living in or returning to the child’s home;
10

(6) the results of psychiatric, psychological, or developmental evaluations of the 

child, the child’s parents, other family members, or others who have access to 

the child’s home;

(7) whether there is a history of abusive or assaultive conduct by the child’s 

family or others who have access to the child’s home;

(8) whether there is a history of substance abuse by the child’s family or others 

who have access to the child’s home;

(9) whether the perpetrator of the harm to the child is identified;

(10) the willingness and ability of the child’s family to seek out, accept, and 

complete counseling services and to cooperate with and facilitate an appropriate 

agency’s close supervision;

(11) the willingness and ability of the child’s family to effect positive 

environmental and personal changes within a reasonable period of time;

(12) whether the child’s family demonstrates adequate parenting skills, including 

providing the child and other children under the family’s care with:

(A) minimally adequate health and nutritional care;

(B) care, nurturance, and appropriate discipline consistent with the child’s 

physical and psychological development;

(C) guidance and supervision consistent with the child’s safety;

(D) a safe physical home environment;

(E) protection from repeated exposure to violence even though the violence may 

not be directed at the child; and
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(F) an understanding of the child’s needs and capabilities; and

(13) whether an adequate social support system consisting of an extended family 

and friends is available to the child.

Id. § 263.307(b); In re R.R., 209 S.W.3d at 116.

Other, nonexclusive factors that the trier of fact in a termination case may 

use in determining the best interest of the child include:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the future;

(C) the emotional and physical danger to the child now and in the future;

(D) the parental abilities of the individuals seeking custody; 

(E) the programs available to assist these individuals to promote the best 

interest of the child;

(F) the plans for the child by these individuals or by the agency seeking 

custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the existing 

parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

These factors are not exhaustive; some listed factors may be inapplicable 

to some cases, and other factors not on the list may also be considered when 

appropriate. In re C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of 
12

just one factor may be sufficient in a particular case to support a finding that 

termination is in the best interest of the child. Id. On the other hand, the 

presence of scant evidence relevant to each factor will not support such a 

finding. Id.

Analysis

Terrence was only two and one-half years old at the time of trial. Appellant 

testified that he and Terrence were bonded with each other and that they would 

tell each other they loved each other. Terrence was healthy when he was born 

and did not have any significant medical problems or special health needs before 

or after removal other than being behind on his immunizations. Terrence was 

developmentally on target and had been evaluated by ECI,6but he did not qualify 

for services.

The Department supervisor testified that the Department had opened a 

prior case on Terrence, but she did not know how that case was resolved, nor did 

she know whether appellant had any involvement in that case. Upon removal in 

this case, Terrence was placed with a foster family; in February 2011, the 

Department placed him with appellant’s mother after the trial court ordered it to 

do so. Terrence was later removed from the care of appellant’s mother after she 

 

6ECI stands for Early Childhood Intervention. See In re C.H., No. 02-08-

00239-CV, 2009 WL 2972640, at *10 (Tex. App.––Fort Worth Sept. 17, 2009, no 

pet.) (mem. op.).
13

refused to take a court-ordered drug test. Terrence was placed in foster care 

again; he was with his third foster family at the time of trial.

Because appellant was not forthcoming with the Department about his 

medical or mental health records, and did not complete a psychiatric evaluation 

through a Department provider, there was no evidence regarding any psychiatric 

examinations. The evidence does show that appellant is a long-time drug addict 

and has a history of abusive conduct toward Mother, with whom he continued to 

have an on and off again relationship after Terrence was removed. The 

Department supervisor did not think that appellant had dealt with his drug issues 

and could not provide Terrence with a stable home.

Although wanting Terrence to be returned, appellant and his family showed 

a lack of cooperation with the Department and the CASA worker. The

Department supervisor testified that appellant was “frustrated, angry, and 

belligerent” and not open to suggestions and help from the Department. 

However, appellant also testified that he had a hard time obtaining help from the 

Department setting up the necessary counseling and psychiatric appointments, 

and there was evidence that the first caseworker was negligent in originally 

setting up the service plan. According to the Department supervisor, 

reunification was the original goal until September 2011; the goal was changed to 

termination then because neither parent had made progress on their service 

plans. Appellant contends that the Department’s lack of cooperation excuses his 

behavior in failing to comply with the service plan, but the Department’s 
14

omissions fail to explain appellant’s continued lack of cooperation, especially with 

respect to drug testing and violence against Mother.

Appellant testified that if Terrence were to be returned to him, he would 

probably spend time going back and forth between his house and appellant’s 

mother’s house. Although the Department supervisor testified that she had no 

concerns about the physical safety of appellant’s mother’s home, a CASA case 

supervisor testified that appellant’s mother was uncooperative with letting CASA 

visit Terrence while in her care. She would not answer the door of her home 

when the supervisor and CASA volunteer came to visit. Appellant would not 

cooperate with CASA either, but the supervisor only tried to contact him once, 

and she admitted that he could have been in rehab at the time.

Terrence’s CASA volunteer met appellant’s mother in her home in January 

2011 the week Terrence moved in with her. Appellant’s mother would only let 

her in the living room, but Terrence looked fine. The volunteer had a difficult time 

getting back to the house to visit, however; no one would return her phone calls 

and no one would come to the door. She tried to visit about twenty times, 

sometimes several times a day over a three-month period; she got in only one 

time because a man was walking out the door, and she caught him with the door 

open. At that time, Terrence was dirty, his pajamas were soiled, and he smelled 

as if he had not been bathed. In addition, the house was so cold she could see 

her breath in the air. Appellant’s mother would not let her into the rest of house, 

so she did not know where Terrence was sleeping.
15

According to the CASA volunteer, Terrence was doing very well in foster 

care. Appellant’s interactions with him during visitation were positive. She 

thought that his parents loved him, but she did not think they could handle being 

together and raising children. The volunteer was not in favor of termination but 

rather relinquishment with an open adoption. Nevertheless, she thought 

termination was in Terrence’s best interest.

The Department supervisor testified that Terrence would be easy to adopt; 

he had not had problems at any of his placements. Although his then-current 

foster family had not expressed an interest in adopting him, one of his former 

foster families had.

Although some factors in the best interest analysis do weigh in appellant’s 

favor, particularly his love for and bond with his young child, we cannot say that 

the evidence weighing in favor of termination is insufficient. The jury could 

reasonably have chosen to believe from the evidence that appellant had not dealt 

with his drug addiction and was attempting to conceal that fact from the 

Department, did not have a supportive or stable home environment for Terrence, 

was not equipped to parent Terrence adequately, and had not changed his own 

destructive patterns of conduct, particularly toward Mother. Accordingly, we 

conclude and hold that the evidence is legally and factually sufficient to support 

the jury’s finding that termination was in Terrence’s best interest. We overrule 

appellant’s first issue.

Conclusion
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Having overruled appellant’s dispositive issues, we affirm the trial court’s 

judgment.

TERRIE LIVINGSTON

CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: September 13, 2012