### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 22

- 00190

- CV

R. J. and A. D. M. , Appellant s

v. Texas Department of Family and Protective Services , Appelle e

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1- FM -20-005379, THE HONORABLE J A N SOIFER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

R. J. (Mother ) and A.D.M . ( Fa ther) appeal from the trial court ’ s final decree
terminati ng t heir paren t al rights to their child H.M. , who was born in May 2019, and their twins
J.F.M. an d M.G .M. , who wer e born in Septem ber 2020

. 1 In their appellate issue s, t he parents challenge th e trial court ’ s pre dicate -ground findings. S ee Tex. Fam. Code § 161.001(b)(1) (N) (constructively abandoning) , (O) (fail ing to co mply with court

- ordered services) . Fo r the following reasons , we affirm the trial cour t’ s final decree of te rmina tion.

BAC KGROUN D In December 2019, Moth er and seven -month-old Child came to Texa s fro m South Carolina. A short tim e later , Father al so c ame to Texas, an d Mother became pregnant with

1 We refer to the parents and th eir children by their initi als or as Mo ther , Father , Child, and the Twins

. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.2 the Twins

. Mo ther did not receive prenatal c are d uring her pre gn ancy with the Twins , 2 and o n Septe m ber 27, 2020 , she gave birth premature ly to t he Twins , who w ere admitted to the N I CU

. A f ter inve s tigating a report that Mother an d one of the T wins h ad tested positive for amphetamine at the hospital , the Department of Fam ily and Protect ive Se rvices filed an original petition concerning the T wins

. T he trial c our t appointed the Department as the temporary managing conser vat or of the Twins , and t he Depa r tment plac ed the Twins with a
f oster mother before they w ere di scharged from the hospital

. During its investigation, the Department became aware of Child but wa s unable to locate her

. Mothe r and Father initially provided inc onsistent information , includ i ng Mother representing that “ they were just passing

t hrough ” and that they “ actual ly were residing in Sou th Caro lina ” and Father representing that
Child was in S ou th Carolina

. 3 The Departm en t amended its p etition to include Child and was granted a w rit o f attach ment as to Child

. Around that time, Mo ther and Father tu rned Child over to the Department , and the De partment pla ced Child in a f ictive k in ship home

. During the Depar tment ’ s c ase, the trial court ordered Mother and Father to particip ate in s ervi ces, including r andom drug testing , a psychologica l eval uation , ind ividual therapy , and a nurturing or protective parenti ng program
. T hey also were ordered t o obtai n and

2 When asked at trial why she did not get prena tal care, Mother testifie d : One, i t was m y sixth pregnancy

. Pretty mu ch accu stom and aware of my body ’ s changes and stuff like that. I knew if there was any co ncern. I

— I know, mo re or less, my body. And if there was a concern, I would know to get medical help. And I just

— I had a genuin e fear of having a child here in Tex as and CPS getting involved. It was a fear.

M othe r also te stified that she knew she was p regnant but not that she was having t wins

.
3 The Department i nvestigator testified that Father initially “ denied knowle d ge of another child ” but “ did eventually admit t hat t here was another child and claimed that child was in Sou th Caro lina w ith fa mily. ”3 maintain employment or income to meet their own and the ir children ’ s needs, to obtain a nd
maintain s afe a nd appropriate housing, to ma in tain communications with the ass igned

casew orker , and to notify the Department within 24 hours of any chan ge in their contact information

. A lternative ly to obtaining and maintaining employ me nt or incom e , the parents could provi de proof that they were able to meet basic needs through public assist ance
. The trial

c ourt also o rder ed supervised visits with th e children

. In an agreed orde r, the trial court extended the dismissal date , and a ben ch tr ial

occur red virtually March 22 to 24, 2 0 2 2

. The w itnesses included Mothe r ; Father , who was incarcerated ; a Depar tm e nt caseworker and investigat or ; a police office r , who testified about his

arr est s of Mother and Father during the cas e ; the children ’ s pate rnal aunt (Aunt) , who lived in
South Carolina and wa s caring for the chi ldren ; and the Twin s ’ foster mother , who had cared for
the Twins from their dischar ge from t he hospit al until they were pl aced with Aunt

. The
D epartment sought to terminat e the p arent s ’ rights so t hat Aunt could ad opt them

. Th e evidence
showed that the childre n were placed with Aunt ab out one mo nth before trial, that they were doing well in he r care , an d that she was w illin g to maintain contact between the parents and
childre n if pa re nt al righ ts were terminated and she adopted the c hildren

. The Depa rt ment investigator testified abou t her investigation and the children ’ s removal from the par e nts. She testified abo ut the parents ’ lack of cooperation with l ocating
Child and the Dep ar tment ’ s con cerns based on drug t est results , Mother ’ s drug use history , Depar tment involvement with her older children , and F ather ’ s cr iminal h istory

. Besides Chil d

a nd the Tw ins , Mother ha s two te enag e daughters who live with their ma ternal grandm other a nd4 a son wh o liv es with his maternal grandfather

. 4 Mother ’ s parental rights to her three other
children have not been terminated , but s he has not cared for them in some time

. In 2015, Mother attempted to r e move her daughters from her mother ’ s care, but t hey stayed w ith their
gra ndmother after t he Depar tment became involved

. 5 In 2018, t h e Depar tment b rought a case concerning Mother ’ s son bec ause Mo th er alle gedly was us in g illegal drugs during her p reg nancy with her son and aft er his birth . Th at case conc luded w ith her son being placed with
his grandfather

. The Dep artment casework er te stified about the services that the pa re nts were
court

- o rdered to complete and the services tha t they did not complete , includ ing not doing
requ ired drug test ing

. Neither p arent com p lied with requ ired ha ir follicle test s
. Mot her completed 4 of 41 required drugs tests, and Fa ther c ompl eted 9 of 40 re quired drug tests. The
caseworker test ified that one or both p arents only participated in 33 of 7 4 possible visi ts wit h
the c hildren

. 6
Th e officer testified ab out his arre st of Mother on March 8, 2022 for possessi on of

a contro lled substance, methamphetamin e , and fraudulent p ossession of identify ing information

. Mother “ was in a hotel room that was bein g rented fraudulently ” and that con tai ned methamphetamine and mul tiple cr edit car ds. 7 The officer also testified t hat in Januar y 2021, he

4 Mother al so ha d a son who died whe n he was about five months old.

5 Mother testified that her dau ghters began liv in g with her mother becau se she “ was g oi ng through a really hard time after [her] son passed awa y
. ”

6 A fte r the children were pl aced in A unt ’ s car e , the parents g eneral ly had contact wi th the child r en by telephone and video ch at several time s a week

.
7 M o ther t estified that “ s omebody else rented ” the h otel room and that s he “ wa s ju st th ere to take a show er ” and denied having a ny controlle d substances on her.5 ar

rest ed Father for driving a stolen vehicle and possessi ng a narcotic. The officer searched an d
observe d met hamphetamine on Father

. At t rial, Father invoked his Fifth Amendment privilege against sel f

- incriminat ion as to each question that he was asked, ex cept t hat h e t est ified that he
was th e children ’ s fath er and that he ha d one other child. 8 T he Department ’ s questions to Fa ther
included how many tim es he was arrested after Chi ld was born , w hethe r h e and Mo ther had used methamph etamine ar ound Child , wheth er he was abl e to provide for t he children , where he w as livin g before being in jail, whether he h id Child from the Department after the Twins were

r emoved, whether the children were remo ved “ due to drug co ncerns, ” and whether he had comple ted cour t

- ordered services

. As to Mother ’ s comp liance with t he court

- ord ered se r v i ces, Mother admi tted that
she was not in c ompliance but pro vid ed exc uses includin g at times breaking phones and lack ing

access to W i F i and tra nsportation

. Mother testified that she had been li ving in a hot el roo m for

two weeks leading up to trial , t hat she had lived in differ ent hotels for about half of the case , th at she had rented a room with Father f or part of t he case , that she had a vehicle for “ a very br ief

m oment ” during the case, and th at sh e rel ied on fri ends for rides. Besides being arrested shortly
before trial , Mother was arrested in November 2021 whe n methamp hetamine was found in a
vehicle in which M o ther was a passe nger. M other invoked t he F if th Ame ndment whe n asked the
la st time she possess ed metham phetam in e a nd about d omesti c violence b etween her and Father

. A lthough she admitted to us in g ma ri juana when s he was pregna nt with the Twins , Mother de nied using any other i ll egal dr ugs
.

8 Father , who was incarcerated at the t ime of trial, did not provide further testimony about that child

.6 In its final d ecree of termin ation, t he trial court termi nated parental rights , f i nd in g that Fathe r and Mother con stru ctively abando ned the children , see Tex. Fam. Code § 1 6 1. 001(b) (1)( N); t hat they failed to com ply with the court

- ord ered serv ice s , see id

. § 161.001(b)(1)(O) ; and that it was in the child ren ’ s bes t i n terest for par ental r i gh t s to be
terminated , s ee id. § 161.001(b) (2). Th e parents ’ a ppeal s followed.

AN ALYSIS
Standard of R ev i ew To terminate p are ntal rights un der s ection 1 6 1.001, the Department has th e burden to p rov e o ne of the pre d ic ate grounds in subsection (b)(1) and that terminat ion is in the
best interest of the child. Se e id. § 161.001(b)(1), ( 2); I n re A.V. , 113 S.W .3d 3 55 , 362 (Tex.
2 003 ). The applic able standard of proof is clear and conv in cing evid ence
. T ex . Fam. Code § 16 1.206(a); se e In re J.F.C. , 96 S.W.3 d 256, 263 (Te x. 2002) (explaining that “ [d]ue process
requ ires the application of the c lear and convin cin g evi dence standar d of proof in paren tal

t erminati o n cases ” ). The clear and co nvincing evid enc e s tandar d is “ t h at measure or de gree of proof which wi ll pro duce in the mind of the trier of fact a firm belief o r conviction as to the t rut h of the allegati ons soug ht to be esta bl ish ed. ” In re C. H. , 8 9 S.W.3d 17, 23 (Tex . 2002) (quotin g State v. Addi ngt o n , 588 S .W.2d 5 6 9, 570 (Tex. 1 97 9)); see Tex. Fam. Cod e § 10 1.007 (d efining

“ clear and convincing evidence ” ).

“ In conducting a legal

- suf fi ciency review, the r eviewing court can not ignore undisp uted evidence contrary to the finding, but must otherwi se assume the factf inder resolved
di sputed facts in favor of the finding

. ” In re A.C. , 560 S.W.3d 624 , 630

– 31 (Te x. 2018). Legal
sufficienc y r ev iew of the evid ence to su pport a termi nation fin ding re quire s a court to lo ok at all7 th e evidence in t h e light mo st favor ab le to the find in g and c onsid er undisputed con trary evidence
to determine whether a reasonable trier of fact cou ld have formed a fir m belief or convi ction that
its finding was true. Id.
In r eviewing the factual sufficiency of the evidence u nde r the clear

- and

convincing standa rd, we consider and we igh disputed e vidence contrary to the finding against all
the evidence fa voring the find ing. I d

. at 631; see I n re J.O.A. , 283 S.W.3 d 336, 345 (Te x. 2009)

.

“ Evidence i s factually insufficient if, i n light of the entir e record, the disputed evidence a

reas onable factfinder could not have credited in favor of a finding is so significant that t he
factfinder could n o t have formed a firm b elief or conviction that t he finding was true

. ” In re A.C. , 560 S .W.3d at 631 ; see In r e J.O.A. , 283 S.W.3d at 345

. We mus t give du e deference to
the fact finder ’ s findings, and we cannot s ubstitute our own j udg ment for that of the fact finder.
In re H. R.M. , 209 S.W.3d 105, 108 (Tex. 2006 ) ; see In re A.B. , 437 S.W.3d 498, 503 (Tex. 2014) ( noting that w hen reviewing terminati on order, appellate c ourts defer to “ factfinder who, having full op portunity to observe wi tness testimony firs t

- hand, is the sole arbiter when assessing the credibility and demeanor of witnesses ” ).

Court

- Ord ered Services
In their resp ective two iss ues, Mother and Father challenge the p re dicate

- ground
fin dings agai n st them , but we need o nly review their second i s sues that challe nge the trial court ’ s find ing s pu rsuant to subsection ( O). Se e Tex. Fam. Code § 1 61.001 (b)(1) ( O ); In re A. V. , 113 S.W.3d at 36 2 ; see also I n re N.G. , 577 S. W.3d 2 30 , 232

– 33, 237 (Tex. 20 19) (explaining
that o nly o ne predicate g round is ne c e ssary to support t ermination o f parental rights when ther e is also best inte re s t f inding but requiring review of endangerment findings )

.8 To te rminate par ental rights u nder Subse ction ( O), the Department must sho w that : (1) the child was removed und er c hapter 262 of the Texas Family Co de for abuse o r neglect, (2) the ch ild ha d bee n in the pe rmanent or temporary managin g conservatorship o f the Dep artment for at least nine months , a nd (3 ) the parent “ failed to compl y with the prov ision s of a
court order t h at spe cif ically establ ished the actions n ecessary for the parent to o btain the return of th e child

. ” See Tex. Fam. Code § 161.001(b)(1)( O). Nei ther parent disputes that the c hi l dren
were in the conservators hip o f the Department for more than nine mont hs or that they did not comply with court

- ord ered s e rvices , but they challenge the sufficiency of the evidence to support
the trial court ’ s finding that the children were removed for abuse or neglect

. I n the context of subsection (O) , t he w ords abuse a nd n e glect are “ used bro adly

. ”
In re E.C.R. , 402 S.W .3d 239, 248 (Tex. 2013). “ [ B ] ecause chapter 262 u ses the st andard of

‘ danger t o the ph ysical health or safety of the child, ’ a p hrase ‘ centered on risk, rather than just a history of actual abuse or neg lect , ’ abuse or neglect ‘ necessa rily includ es the ri sks or threats of
the environm ent in which the chil d is place d. ’ ” T.M. v. Tex as Dep ’ t o f Fam

. & Protective Servs. , No. 03

- 21

- 0017 4

- CV , 2021 Tex. App. LEXIS 8226, *26 (Tex. App.

— Aus tin Oct. 8, 2021, no pet.) ( mem . op.) ( quo ting In re E.C.R. , 402 S.W.3d at 247

– 4 8). Further , “ [w] hether a child was removed for abuse or negl ect is a fact

- specif i c in quiry. ” I d. (citing In re S.M.R. , 434 S.W.3d 576 , 583 (Tex

. 2014)). And “ [a] pplying wel l

- established rules of stat u tory construction, subsection (O) does not requ ire that the parent who failed to comply with a court order be the same person
whose abu se or neglect of the child warrante d the child ’ s removal. ” See In re D.R. J. , 395 S.W.3d 316, 320 (Tex. App.

— Fort Worth 2 013, no pet.) ( citing In re S.N. , 287 S.W.3d 18 3, 188 (Tex. App.

— Houston [14t h Dist.] 2009, no pet.) )

.9 Father ar gues that the eviden ce was insuffic ient because the Department ’ s

“ susp icion and concerns ” at the h os pital w here M other had just given birth t o the Twi ns were

“ ba sed only ” on Mo ther ’ s “ past use and positive tests, ” Fath e r ’ s “ past criminal his tory , ” and on

“ amphetamine s (which the Department did not prove was from an illicit s ource ) ” and t hat the
evidence at trial was that Ch ild was “ complete ly s a fe a n d free of harm ” at the time of removal.
Mother simi larly argues that t he De p artment failed to in tro duce a ny co mpetent evidence o f abuse
or neg lect at the time the Department remov ed the children. Mother reli es on t he Dep artment ’ s failure to introdu c e “ drug test or medical docum entation ” showing positive drug te sts ; her

test imony denying drug use; the eviden ce t ha t “ over - the

- counte r medications can lead to a positive res ult for amphet am ine s , ” that the Twins did not e xhibit withdrawal sy mptoms , and t h a t
C h ild “ appeared healthy , dressed appropriate ly, interact ed with her parent s appropriately, and did

‘ all the things that a no rmal one

- year - old would do ’ ” wh en re mov ed from her parents ; and th e testimony from the inve s tigator, the casew or ker, and Aunt tha t they had not observe d the pa rents
appear ing t o be und er the influence of dr u gs
. The trial court , h owever, took judicial notice of i ts file

. In its ex parte o rder as to the Twins , the trial cour t found that there was “ an imm ediat e dange r to the physi ca l health or safety of [the Twins] , ” and i n it s ex parte or der as to Child, th e trial court found that there was

“ an immediate danger to the physical health or sa fety of the Child [H.M

. ] or that the Child has
been victim of negle ct or sexu al abuse and that c ontinuation in the home would be contrary t o the Child’s welfare

. ” Similar ly, in its temporary orders as to the Twins and Child , the trial court
found that th ere was “ a danger to the physical heal th and safety of the child whi ch wa s cause d by

an act o r f a ilure to act of the persons entitled to posse ss ion of the child and for the child to10 remain in the home is contrary to the welfare o f the child ” and that “ the ur gent need for protection required the imm ediate removal of the chi ld

. ”
The trial court reaso n ably could have re lied on its fi ndings in these o rders to find
that the childr en w ere removed for a bus e or neglect under c hapter 262

. S ee A. B. v. Tex as Dep ’ t of Fam

. & Pr otective Servs. , No. 03

- 19

- 00593

- CV, 2020 Tex. App. LE XIS 962, at * 11 (Tex. App.

— Aus t in Feb. 5, 2020, pet. denied) (mem. op.) ( “ A trial court ’ s findings in its previo us orders may be sufficient to support the third prong of subsection (O). ” (citing In re E.C.R. , 402 S.W.3d at 248

– 49)) ; D. T. v. Tex as Dep ’ t of Fam

. & Protective Servs. , No. 0 3

- 18

- 00770

- CV, 2019 Tex. App. LEXIS 2797, at *9

– 1 1 (Tex . Ap p
. — Austin April 9, 2019, no pe t. ) ( mem. op.) (re lying in part on fin dings in trial court ’ s temporary orders to conclud e that evidence was sufficient to support that c hild was removed for abuse or n eg lect) ; In re J.S.G. , No. 14

- 08

- 00754

- CV , 2009 Tex. App. L EXI S 3224, at * 1 9

– 20 (Tex. App

. — Houston [14 th Di st.] May 7, 2009, no pet.) (mem. op.) (r elying in part on trial cou rt ’ s te mporary orders concluding that children face d danger to their physical hea l th or safety and substantial risk of continuing danger if r eturned home to conclude that evidence esta blish ed that children were

rem oved “ a s a resu lt of n eglect ” ); In re A.A. A

. , 265 S.W.3d 507, 516 (Te x. App.

— Houston [1 st Dis t.] 2008, pet. denied) (consid e ring trial court ’ s temporary orders f inding “ continuing
dan ger to the physical health or safety of the chil d if returned to the pare nt ” as evidence that
chi ld was removed because of neglect)

. The trial court al so could hav e reasonably con sidered the rem o val a ffi davit s as
sup p orting the children ’ s removal f or abuse or neglect

. See I n re E.C .R. , 402 S.W.3d at 248

– 49 (c o nsidering affidavit, “ even if not evidence for all purposes, ” as evidence in support of removal
for abuse o r neg lect under chapter 262 of F amily Code) ; R .P. v. Texas Dep ’ t of Fam

.11 & P rotect ive Servs. , No. 03

- 21

- 00326

- C V , 2021 Tex. App . LEXIS 8288 , at * 14 (Tex. App

. — Austin Oct. 13 , 2021, no pet. ) ( mem. op.) ( “ In the context of section 161.001(b)(1)(O), however, affidavits are admissible to pr o ve that the children were removed for abus e or ne glect. ” ( c iting
F.C. v. Texa s Dep ’ t of Fam

. & Protecti v e Servs. , No. 03

- 19

- 00625

- CV, 202 0 Tex. App. LEXIS 119 , at *18

– 19 (Tex. Ap p.

— Austin Jan. 9, 2020, no pet.) (mem. op.) )) ; In re J.S.G. , 2009 Tex. App.
L E XI S 3224, at * 16

– 17 (relying in part on affid avit support ing remov al to conclud e that
evidence esta blished that children were rem oved “ a s a result of n eglect ” )

. I n her affid avit s supporting removal , t he investi gator averre d that Mother did not receive pr e natal c are d uring her
pre gn ancy with the Twins , that she tested positive for marijuana and she and o ne of the Twins

test ed positive for amphet amin e at the hospital , that she pro vi ded no explanation for the posi tive drug tes ts, that the parents provi ded in a ccurate informati on a bout Child ’ s wherea bouts and their living situation , and that they did not comply with the investi gator ’ s reque sts that they dr u g test

. F u r ther, t he trial court r e asonably could ha ve dra wn negati ve inferences from the parents ’ invo c a t ion of the Fifth Amendment in response to q uestions

. See Tex. R. E vid. 513(c); Wilz v. Flournoy , 228 S.W.3d 6 74, 677 (Tex. 2007) ( “ [T]he jur y in this civil ca se was free to
draw negative inf erences from the Flournoys ’ r epeated invocations of the Fifth A m endment. ” );
In re A.G. , No. 11

- 13

- 00182

- CV, 2013 Tex. App. LEXIS 154 24, at * 10 (Tex. App.

— Eastla nd Dec. 20, 20 13, no pet.) (mem. o p. ) (noting in context of pare nta l

- rights

- termination case , that
fac tfinder may draw neg ati ve inf erences from witness ’ s invoc a tion of Fifth Amendment ); White v. Texas Dep ’ t of Fam

. & Protective Servs. , N o. 03

- 08

- 00411

- CV, 2008 Tex. App. LEXIS 950 8,
at * 13

– 1 4 (Tex. App.

— Au stin Dec. 19, 2008 , no pet. ) (mem. op.) (same). Fa ther invo ked the
Fift h A mendment in response to questio ns a ski ng him how many times he was arrested a fter
Child was b orn, whether h e and Mot her used methamphetamine arou nd Child, whether he12 observed Mo ther using illegal drugs while she was pregnant , whether he h id Child from t he Department when the Twins were rem o ved, and whether the children were remo ved “ due to drug

co ncerns
. ” Mother invo k ed the Fifth Amendment when asked about domes t ic violence b e tween her and F ather and the last time she possess ed methamphetam ine

. Viewing the evidence under the applicable s t andard s of review, w e conclude that the evidence was legally and factu ally sufficient to support the trial court ’ s f i nding that the
children we re removed for abuse or neglect

. Se e Tex. Fam. Code § 161.00 1(b)(1)( O ) ; In r e A.C. , 560 S.W.3d at 630

– 31. We o v errule Father ’ s second issue and to the extent he r second issue
challe nges this finding , we a lso overrule Mother ’ s s econd issue

.

I

nvestigator ’ s Testimony As part of her second issue, Mother ar g ues that the tria l co urt erred in overruling
Mother ’ s objec t ion to the investigator ’ s testimony that she had “ concern s ” regardi n g drug test
results from Mother, one of t he Twins, and C hi ld

. Mother objected to this tes timony beca use

“ t he results a re going to be calling for hea rsay ” and “ [t]he concer ns are based on hearsay. ” See
Tex. R. Evid. 801 (d) (def ining hearsay as out

- of

- court statement offered to prove truth of

ma tter as serted )

.

“ We review a trial c ourt ’ s decision to admit or exclude evidence for an abuse of discreti on. ” A.B . v. Texas Dep ’ t of Fam

. & Prot e ctive Servs. , No. 03

- 17

- 00658

- CV,
2018 Tex. App. LEXIS 1790, at *7 (Tex. App.

— Austin Mar. 9, 2018, no pe t.) (mem . op.) (quoting In re J.P.B. , 180 S.W.3d 570, 575 (Tex. 2 005)). “ A trial court abuses its discretion

w hen it a cts in an arbitrary or unreas ona b le manner ‘ without reference to any guiding rules or13 principles. ’ ” Id. (quoting Downer v. Aquamarine Op erators, I nc. , 701 S.W.2d 238, 241

– 42 (Tex. 1985)).
Because the Department sought term ination under subsectio n (O), the trial court

reason ab ly could h ave admi tted the investigator ’ s testi mony that the D ep artment was concern ed
about the dr ug test results for the li mited purpose of pr o ving th at the children were removed for
abuse or neglect. S ee R.P. , 2021 Tex. Ap p. LEXIS 8288 , at *14

– 15 ( concluding tha t t rial court

rea sonably could have admitted affidavits over hearsay objection “ for the limited purpose o f proving t hat the children we re removed for a buse or neglect ” under chapter 2 62)

. Thus , we
cannot conclude th at t he trial court abuse d i ts discretion in allowing this tes t imony

. 9
Affirmati ve Defense As part of her second issue , Mother also “ asser ts her affirmative defense

— tha t she atte mpted to comply with the court

- ord ered services in good fait h but was p re vented fr om d oing so through no fault of he r own. ”
A court may no t order ter mination under subsection (O) if the parent proves by a prepond erance o f the evidence that “ t he parent was unable to comply with specific provisions of
the court order ” a nd “ t he parent ma de a goo d fa ith effort to comply w i t h the o rder a nd the f ailure

t o comply with the order is not attributable to any fault of the par ent. ” Tex. Fa m. C ode § 161.00 1(d) ; see In re Z.M.M. , 577 S.W.3d 541, 542

– 43 (Tex. 2019) (dis cussing affirma tiv e defense provided in section 161.001(d)) ; R.S. S . v. Texas Dep ’t of Fam. & Protecti ve Servs. ,

9 Mother cites In re K.C.P. , 142 S .W. 3d 574 (Tex. App.

— Te xarka na 2004 , no pet.), as support ing her position that the ch allenged testimon y was i nadmissible . We f ind th at case factually disti nguishable

. In that case, the issue concerned the admiss i on of the act ual records of t he drug te st resul ts

. Id. at 579

– 80. In contrast, in this case, t he Depart m ent ’ s repres entative did not tes t ify as to what the drug test results were , and the rec ords of t he drug t est results were not admitted

.14 No. 03

- 22

- 00076

- CV, 2022 Tex. App. LEXIS 4864, at * 10

– 11 (Tex. A pp.

— Austin July 1 5, 2022, no pet. h. ) (mem. op.) (e x plaining that “ [ s] ectio n 161.001(d) is an affi rmative
defense to subsection (O) that places t h e burden of proof on the parent ” and that “ the parent must satisfy this burden for each specific provision of the court order t hat the State claims he failed

to complete ” ).
Mother rel ies on evid ence of her reasons for being un ab le to co mply with some of
the court

- ordered services

. Mothe r testified , “ the Department set up services on the opposite side of town, notified parent s of drug tests when they knew parents had no reliable acc ess to phone or
i ntern et s ervice, and set visits at a location tha t di d n o t h ave bus servic e, e ven thou gh it knew the parents had no vehi cle

. ” Mother relies on her tes timony about how her fi rst two attorneys and
the first caseworker “ fail ed her utterly ” ; about the difficu lt i es tha t she faced w ith scheduling
some of th e court

- o r dered ser vice s ; and about he r lack of transport ation, a reliable phone , and
reliable inte rnet ser vice throughout the case. Although some evidence showed that Mother tr ied to c omply with some of the

court

- ordered services, the tr ial court reasonably coul d have inferred fro m other evidence that she had not made a good faith eff ort to comply with s ervices, p articularly required drug te sting

. The evidence showed th at Mother only completed 4 of 41 required dru g tests during the
18 months that the case was pe n ding

. The casewo rker testified that she offered to transport the parents to drug testing that she requ ested at visits but that they decl ined her offer a nd that they responded to texts concerning visits but not to texts concerning drug testing

. Further t h e evidence showed that Mother was arrested shortly before trial for pos se ssion of methamphetamine and i nvok ed t he Fifth Amendme nt when she was asked the last tim e she possessed methamphetamine. Th e casewor ker testified that she rest arted all r ef errals in15 July 2 021 ; offere d tra nsportation and provided bu s p asse s to the parents ; and offered a
conference room at the Department to connect to W i F i , whi ch they declined

. The caseworker
further t est ified that the paren t s did not let her know that t hey could not p articipa te in
virtual services

. Based on our review o f the record, we conclude that the evide nce is legally a n d factually sufficient to suppo rt that Mothe r did not prove by a preponderance of th e eviden ce that
sh e made a good fa ith effort to comply with the court

- ord e red servic es or that her f ailure to compl y with the court

- ordered servi ces was “ not attributable to any fault of [Mo ther]. ” See Tex.
Fa m. C ode § 161.001(d) ; R.S.S. , 2022 Tex. App. LEXIS 486 4, a t *10

– 11

. We overrule the
remainder of Mother ’ s second issue

.

CONCL USION Having overrule d the p ar e nts ’ second issues challeng ing the trial court ’ s predicate ground fin ding s under subs ection (O) , we affirm t he tr ial court ’ s final decree of termi nation. 10

____ ______________________________________ Melissa Goodwi n , Justice
Before Justi ce s Goodwin, Baker, and Kelly
A ffi rmed
Filed : August 11, 2022

10 B ecause we have concluded that the evidence was le gally and fact ually sufficient to support termination under subs ect ion (O) and o verruled the parents ’ issues as to t hat findi ng , we do not reach the par ent s ’ first issues challenging the trial court ’ s finding s that t h ey constructively abandoned the childre n
. See Tex. Fam. Code § 161.0 0 1(b)(1)(N); In re N.G. , 577 S.W.3d 230, 232

– 33 (T ex. 2019 )

.