### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00351- CV

T. J., App ellant

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 433 RD JUDICI AL DISTRICT NO. C2013 -02 54D, H ONO RAB LE DIB WALDRIP , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant T.J

. (“Te resa ”) appea ls from the trial co u rt ’s order terminating her pare ntal rig hts to her three minor children: “Da vid,” “Ke lly ,” and “Z oe.” On appea l, Tere sa asser ts 1 that the evidenc e is insuff icient to ( 1) establish that a statutory g round for ter minating her pare ntal rig hts exi s t s , (2) establish that termination of her pare ntal rig hts is in her children’s best interests, and (3) overc ome the p re s u m p t i o n that a pare nt should be named manag ing conser vator of her children. We a ffirm the tria l court’s judg ment terminating Tere sa’s pa renta l rig hts.

BACK GR OUND Appellee Texas Depa

rt m en t of Family and Protective Service s (the Depa rtment) beca me involved in this c ase when it lea rned that Tere sa had be en hospitalized after attempting to

For the sake of convenie nce and privac y of the par ties, we re fer

to T .J ., her children, and 1 the childre n’s fa mily

members by

fictitious names. See Tex. Fam. Code § 109.002(d)

.commit suicide. J eru s h a J ennings, the Depa rtment’s lead investiga tor in this case , would later testify that while Tere sa wa s h o s pitaliz ed, she went to Tere sa’s home and spoke with “B rad,” Tere sa’s boy friend and the fathe r of h er children. Acc ording to J enning s, Br ad confirme d that Tere sa attempted to c ommit s uicide by overdosing on ibuprofen, a nd Br ad expressed c oncer n that “she was back on drug s.” J enning s also lear ned that when Tere sa attempted to commit suicide, she

was a lone in her home with Z oe, who wa s two y ear s old at the time.

Ba sed on this initi al investig ation, the Depa rtment, Ter esa, a

nd Br ad ente red into a “saf ety plan” under which Tere sa could continue to live in the home and be around the children, but Br ad ag ree d not to leave the childre n alone with T ere sa. A few day s afte r the parties ag ree d to the safe ty plan, howeve r, Jennings re turned to the c ouple’s home whe re she found B rad a lone and the elec tricity service disconnec ted. Br ad admitted that he allowed Tere sa to leave the house with Z oe i n v iolation of the safe ty plan. Given the pare nts’ inability to follow the in-home safe ty plan, the De p ar t m en t and the pare nts ag ree d to a “par ent-c hild safe ty place ment,” under which all three children wer e place d outside of Br ad and Tere sa’s home. As part of this voluntary plan, Tere sa and Br ad submitted to drug tests. Bra d tested neg ative for drug s, but Tere sa tested positive. Following these drug tests, the Depa rtment conducte d a “fa

mily team meeting ” at which time it informed Br ad that the Depa rtment would be seeking to re move the children from Br ad and Tere sa’s custody

. Tere sa was not at this meeting , but she spoke with J enning s the next day and ex presse d a will ingne ss to voluntarily enter an inpatient treatment fac ility to addre ss her drug addictio n . Ho we v er , when Tere sa was en route to a trea tment fac ility , she attempted to commit suicide ag ain and wa s taken by forc e to a state hospital.

2After t his second suicide attempt, the Depa rtment soug ht to remove David, Kelly , and Zoe from Brad and Teresa’ s car e. F ollowing a n adver sarial he aring , the trial cour t entere d an order naming the Depa

rtment as the children’ s temporar y manag ing conser

vator. Vickie Denman,

a case worke r for the Depa rtment who assumed responsibility for this case in J uly 2013, testified that afte r the children’ s remova l, the Depa rtment prepa

red family service plans throug h which Br ad and Tere sa could work toward reg aining custody of thei r children. See Tex. Fa m. Code § 263.106. Among other things, the service plan require d Tere sa to complete an inpatient drug trea tment p r o g ram, submit to a hair follicle drug test, attend Nar cotics Anony mous and Alcoholics An o ny mo u s sessions, and complete individual counseling

. Acc ording to Denman, Br ad compl et ed al l of the require ments of his fa mily service plan, but Tere sa only completed an initial psy cholog ical evalua tion and attended thr ee c ounseling sessions.

Ba sed on Tere sa’s lack of prog ress in h er famil y service plan, the Depa rtment ultimately soug ht to terminate Tere sa’s pare ntal ri g hts and have the children continue to live wi t h Br ad. Following a two-day final hear ing on the Depa rtment’s petition to terminate Tere sa’s pare ntal rig hts, the trial court found by clea r and convincing evidenc e that Tere sa had failed to comply with the terms of her family service plan and that termination of her pare ntal rig hts was in her c hildren’s best interest. See id. § 161.001(1)( O), (2). Ther efor e, the tria l court ente red a final judgme nt terminating Tere sa’s pa renta l rig hts to her three children. This a ppeal f ollowed.

DISCUSSIO N On ap peal, Tere sa asser

ts that the evidenc e is leg ally and fac tually insufficient t o support the trial court’s judgme nt. To terminate the pare nt-child rela tionship, the fac t-finder must
3find clea

r and convincing evidenc e that (1) the pare nt has eng ag ed in conduct constituting statutory g rounds for termination and (2) termination is in the child’s best interest. In re C.H. , 89 S.W .3d 17, 23 (Tex. 2002). I n her first appellate issue, Tere sa arg ues that there is insufficient evidenc e to prove that a statutory g round for termination exist s beca use there is no evidenc e that Tere sa was order ed to complete a family service plan based on alleg ations that s h e abused or neg lected her children. See Tex. F am. Code § 161.001(1)( O). Second, Tere sa cla ims that there is insufficient e vidence to prove t h at t erminating her pare ntal rig hts is in her children’ s best interests. See id. § 161.001(2). Finally , Tere sa asser

ts that the evidenc e is insufficient to overc ome the presumption that as a pare nt, she should rema in the manag ing c onserva tor of her children.

Stand ard of review

“The distinction betwee n leg al and fac tual sufficie ncy when the burden o f proof is clea r and convincing evidenc e may be a fine one in some case s, but there is a distinction in how the evidenc e is revie wed.” In re J.F.C. , 96 S.W .3d 256, 266 (Tex. 2002). I n a t er m i nation case , we revie w the leg al sufficie ncy of the evidenc e by considering all of the ev i d ence in the light most favor able to the trial court’s deter mination and will uphold a finding if a rea sonable fac t-finder could have formed a firm conviction that its finding was true. Id. To g ive appropr iate defe renc e to the trial court’s conclusions, we must assume that the court resolved disputed fac ts in favor of its finding if it could rea sonably do so. Id. An appellate court should disreg ard evidenc e a rea sonable fac t-finder could have disbelieved or f ound incre dible. Id. When revie wing the fac tual sufficie ncy of the ev i d ence in a pare ntal termination

case , we view

all of the e vidence in a neutra l light and dete rmine whe ther a rea sonable fa ct-finde r 4could form a firm belief or conviction that a g iven finding was true. In re C.H. , 89 S.W .3d at 18–19.

We a ssume that the trial court resolved disputed fac ts in fa vor of its finding if a rea sonable person could do so, and we disreg ard evidenc e that a rea sonable fac t-finder could have disbelieved or found incre dible. In re J.F.C. , 96 S. W

. 3d at 266. Evidence is fac tually insufficient only if a reasonable fac t-finder could not have resolved the disputed evidenc e in favor of its finding and if that disputed evidence is so signific ant that the fac t-finder could not rea sonably have formed a firm belief or conviction that its finding wa s true. Id. Statutory gr ound for term ination

I n her first appellate issue, Tere sa asser ts that the evidenc e is leg ally and fac tually insufficient to support the trial court’s conclusion that a statutory g round for terminating her pare ntal rig hts ex ists. Specifica lly , Tere sa arg ues t hat t here is no evidenc e that the family service plan she

was order ed to complete was in response to her children’ s remova l for abuse or neg lect. There fore ,
acc ording to Tere sa, her failure to complete the family service plan does not satisfy the elements of section 161.001(1) (O) of

the Texas Fa

mily Code. The Depa rtment’s only statutory g round for terminating Tere sa’s pare ntal rig hts was subsection (O), which provides that a pare nt-child rela tionship may be terminated if the pare nt has:

failed to comply with the provisions of a court order that specific ally established the actions nece ssary for the pare nt to obtain the return of the child who has b een in the perma nent or temporar

y manag ing conser vatorship of the [Department] for not less than nine months as a result of the child’s remova l from the parent under Chapter 262 for the abuse or negle ct of the child

.

5Tex. Fam. Code § 161.001(O) (empha sis added)

. The s u p re m e court has rec og nized that it is an

essentia l el ement of subsection (O) that the child was remove d under Chapter 262 for abuse or neg lect. See In re E.C.R. , 402 S.W .3d 239, 246 (Tex. 2013) (discussing broad meaning of abuse and neg lect under Chapter 262). Howeve r, the court held that within the meaning of Chapter 262, abuse

or neg lect encompa sses both actua l abuse or neg lect and a substantial risk of abuse or neg lect. See id. at 246–47; L.Z. v. T

exas D ep’t of Family &

Protective Servs. , No. 03-12-00113- CV, 2012 WL 3629435, at *7 (Tex. App.—Austin Aug

. 23, 2012, no pet.) (mem. op.) (noting that whether remova l

was result of abuse or neg lect is deter mined on case -by -ca se basis). Thus, under subsection (O), the Depa rtment had the burden to establish that Tere sa (1) was order ed to comply with a family service plan as a result of her children’ s remova l for abuse or neg lect and (2) failed t o co m p ly with the require ments of the fa

mily service plan. The trial co u rt took judicial notice of testimony that it hear d in previous hear ings and the dates of its previous orders i n t h i s case, but did not take judicial notice of the content of those order s—specific ally , its order removing Teres a’ s chil dren and naming the Depa rtment the children’ s temporar

y manag ing c onserva tor. Fur thermore , the Department did not offe r a c opy of the trial court’s order or Tere sa’s fa m i l y service plan as an exhibi t. Tere sa asser ts that beca

use

n ei t h er the order removing her children nor her family service plan was admitted into eviden ce , the rec ord i s insufficient to establish any of the fac ts nece ssary to terminate her pare ntal rig hts under subse ction (O).

Al t h o u gh the order of remova l and the family service plan wer e not admitted as exhibi ts, both J enning s and Denman t estified ex tensivel y about t he reasons t hat Teresa’ s children

6wer e re moved and Te resa ’s fa ilure to c omplete her family service plan. J enning s testified that the

Depa rtment soug ht to remove t h e ch i l dren and be named the children’ s temporar y manag ing

conser vator based on Tere sa’s two suicide attempts, one of which occur red while she was alone with two-y ear -old Z oe; Tere sa’s admission to a history of drug abuse; and her testing positive f or drug s while she was under the pare nt-child safe ty place ment. J enning s stated that Tere sa’s an d Br ad’s actions whil e the children were in their care endange re d the children’s phy sical health and safety

. Finally , J enning s testified that afte r an adver sarial hear ing, the trial court order ed th e children removed from Tere sa and Br ad’s car e and order ed that the Depa rtment be named temporar y manag ing c onserva tor.

Simi larly , Denman testified about Tere sa’s failure to comply with the family service plan. Acc ording to Denman, the family service plan require d Tere sa to complete an inpatient drug trea tment prog ram, submit to a hair follicle drug test, attend Nar cotics Anony mous and Alcoholics An o n y m ous sessions, and complete individual counseling

. Fur thermore , Denman confirmed that this family service plan was submitt ed to the trial court and that the court order ed Tere sa to complete the plan in May 2013. Finally , Denman testified that Tere sa completed her psy cholog ical evalua tion but had not completed any of the other require ments of her family service plan. Tere sa did not introduce a

ny evidenc e or te stimony

to contradic t J enning s’s and De nman’s stateme nts. Ba sed on J enning s’s and Denman’ s statements, the trial court could have rea sonably conclude d that Tere sa was order ed to comply with a family service plan as a result of her children’ s

remova l for abuse and neg lect. Fur therm o re , b ased on Denman’ s testimony , the trial court could have rea sonably conclude d that Tere sa failed to comply with the require ments of that family service

7plan. There fore , considering the evidenc e in the light most favor able to the trial court’s ruling , we

c o n c lu d e th a

t th e c o u r t c o u ld h a v e f o r me d a f ir m b e li e f o r c o n v ic ti o n th a

t s u b s e c ti o n ( O ) is a s ta

tu to r y g round that suppo rt s t erminating Tere sa’s pare ntal rig hts. See Tex. Fam. Code § 161.001(1)( O);

see also In re A.V. , 113 S.W .3d 355, 362 (Tex. 2003) (noting th at o n l y one statutory g round for termination i s n ece ssary to support termination of pare ntal rig hts). Thus, the evidenc e is leg ally sufficie nt to support the trial court’s judgme nt. Simi larly , considering the evidenc e in a neutra l light,

w e c o n c lu d e th a

t th e tr ia l c o u

r t c o u ld h a v e r e s o lv e d th e d is p u te d e v id e n c e in f a v o r o f it s f

in d in g . S e e A.V. , 113 S.W .3d at 362. There fore , the evidenc e is f actua lly sufficie nt to support the trial court’s finding that a statutory

g round for

termination exist s. We overrule Tere sa’s fir st appellate issue.

Best intere st fin din g

I n her second issue on appea l, Tere sa asser ts that the evidenc e is leg ally and fac tually i n s u ff i cient to support the trial court’s finding that termination of her pare ntal rig hts is in her children’ s best interests. Specifica ll y , Tere sa notes that the Depa rtment did not terminate Br ad’s pare ntal rig hts, and th at Br ad testified that he hoped Tere sa would have an ong oing rela tionship with her children. There fore , acc ording to Tere sa, the trial court’ s o rd er terminating her pare ntal rig hts “does nothing to further the plans for

the childre n and make s no sense.” I n a par ental-r ights-te rmination case , the best intere st of the child is assessed using

a n o n -ex haustive l ist of factors. See In re R.R. , 209 S.W .3d 112, 116 (Tex. 2006). Th es e fa ct o rs include (1) the child’s wishes, (2) his emotional and phy sical needs now and i n t h e fu t u re, (3) emotional or phy sical dang er to the child now and in the future, (4) the pare nting abilities of the parties seeking custody , (5) pr og rams ava ilable to help those par ties, (6) plans for the child by the

8parties seeking custody , (7) the st ab i l i t y of the proposed place ment, (8) the acts or omissions of

the pare nt that indicate that the exis ting pare nt-child rela tionship is not proper , and (9) any excuses for the acts or omissions of the pare nt. See Holley v. Adams , 544 S.W .2d 367, 371–72 (Tex. 1976).

The Depa rtment need not prove all n i n e Hol ley fac tors as a “condition prec edent”
t o t er m i nation, and the absenc e of some fac tors does not bar the fac t-finder from finding that termination is in the child’s best inte re s t

. In r e C.H. , 89 S.W .3d at 27. Whil e no one fac tor is controlling , the analy sis of a single fac tor may be ad eq u at e i n a particula r situation to support a finding that termination is in the child’s best inte re s t

. In r e J.O.C. , 47 S.W .3d 108, 115 (Tex. App.—Waco 2001, no p et

. ), d i sapproved of on other grounds by In re J.F.C. , 96 S.W .3d at 267 n.39; see also Rios v. Texas Dep’ t of Family & Protective Servs. , No. 03-11-00565- CV, 2012 WL 2989237, at *8 (Te x . App.—Austin J uly 11, 2012, no pet.) (me m. op.). I n this case , Br ad testified that his children loved and missed Tere sa and that he hoped Tere sa would still be a part of their children’ s lives. Howeve r, Br ad admitted that Tere sa had made suicide attempts in the past and had a rec urring history of drug abuse. Fur thermore , Br ad conce ded that during the pendenc y of this case , Tere sa missed sever al schedule d visits with her children, which Br ad admitted had disa

ppointed his children. I n addition, Susan Sprole, the court appointed specia l advocate who repr esente d the children in this case , testified that Tere sa lacke d appropr iate pare nting skills, had failed to show any chang e in behavior during the pendenc y of this case , and had made no eff ort to be reunited with her children. Sprole also stated that Tere sa did not have a leg itimate exc u s e fo r not completing the require ments of her service plan. Finally , Sprole testified that reg ardle ss of whether Br ad allowed Tere sa to visit the children, terminating Tere sa’s pare ntal rig hts was in the children’ s best interest. 9Considering this rec ord in the light most favor able to the trial court’s judgme nt, w e

conclude that a rea sonable fac t-finder could have found clea r an d co n vincing evidenc e that termination of Tere sa’s pare ntal rig hts was in her children’ s best interests. There fore , the evidenc e is le g ally sufficie nt to support the trial court’s be st-interest finding

. See J.F.C. , 96 S.W .3d at 266. Simi larly , considering the evidenc e in a neutra l light, we conclude that the disputed evidenc e is not

so signific ant as to preve nt a rea sonable fac t-finder from forming a firm belief or conviction that the court’s best-intere st f

inding was true. Thus, the evidenc e is f actua lly sufficie nt to support the trial court’s be st-interest finding

. See id. We overrule Tere sa’s sec ond appellate issue.

P resum ption on m anagin g conservat orship

I n her f inal issue on appea l, T ere sa asser ts tha t the evidenc e is le g ally and fa ctually insufficient to overc ome the presumption that it is in the children’ s best interest to have both pare nts named joint manag ing con s er v ators. Specifica lly , Tere sa arg ues that section 153.131(b) of the Family Code codifies this strong rebuttable presumption, and that the presumption is only remove d if there is a “finding of a history of family violence involving the pare nts.” See Tex. Fam. Code § 153.131(b). Ac cording to Tere sa, t here is no evidenc e that she has a his tory of family violence,

an d t h us the presumption that she and Br ad should be named the children’ s joint manag in g

conser vators still exis ts. Further more, Te resa

asser ts that the evidenc e is insuff icient to ove rcome this presumption and, th er ef o re , the trial court should have made Tere sa the joint manag ing

conser vator of he r childre n. The sections of the Family Code upon which Tere sa relies are not applicable in this

c a s e . A s w e r e c e n tl y e xp la in e d , th e s ta tu te s c it e d b y T e r e s a c r e a

te a s ta tu to r y p r e f e r e n c e f o r p la c e me n t
10with a pare nt while a pare nt still reta ins her pare ntal rig hts. See Spurck v. Texas Dep’ t of Family &

Protective Servs. , 396 S. W

. 3 d 2 0 5, 219–20 (Tex. App.—Austin 2013, no pet.) (citing Tex. Fam. Code § § 262.114(c) (1), 263.306(a) (6), 263.404(a) (2); In re D.O. , 338 S.W .3d 29, 38–39 (Tex. App.—Eastland 2011, no pet.)). Following the termination of her pare ntal rig hts, Tere sa does not, and logic ally should not, enjoy a presumption that it is in her children’ s best interest to have a pare nt who has had her pare ntal rig hts terminated named the children ’s manag ing conser vator. See id. ;

see also Tex. Fam. Code § 101.024(a) (noting that for purposes of Fa mily Code, “the term [parent] does not include a

pare nt as to whom the pare nt-child rela tionship has been ter minated”)

. Thus, Tere sa’ s a s s e r

ti o n th a t th e D e p a r tm e n t was require d to overc ome a presumption that s h e is the pref

err ed joint manag ing conser vator of her children is without merit. See Spurck , 396 S.W .3d at 220. We overr ule Ter esa’ s third appellate issue.

CONCLUSION Having ov e r

r u le d T e r e s a ’ s thr ee issues on appea l, we aff irm the trial court’s judgme nt terminating her pa

renta l rig hts.

__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: Nove mber 25, 2014

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