IN THE

TENTH COURT OF APPEALS

No. 10-21-00001-CV

IN THE INTEREST OF G.A., A CHILD

From the 52nd District Court

Coryell County, Texas

Trial Court No. DC-18-49129

MEMORANDUM OPINION

Paula S. appeals from a judgment that terminated her parental rights to her child, 

G.A. See TEX. FAM. CODE ANN. §161.001. In three issues, Paula complains that the evidence 

was legally and factually insufficient for the trial court to have found that she committed 

the predicate acts in Family Code Sections 161.001(b)(1)(N), (O), and 161.003. Because we 

find that the evidence was sufficient to support the trial court's findings pursuant to 

Section 161.001(b)(1)(O) because she did not prove the affirmative defense to Section 

161.001(b)(1)(O) set forth in Section 161.001(d) by a preponderance of the evidence, we 
In the Interest of G.A., a Child Page 2

affirm the judgment of the trial court.1

STANDARD OF REVIEW

The standards of review for legal and factual sufficiency in termination cases are 

well established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re 

C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). In reviewing the legal sufficiency 

of the evidence, we view all the evidence in the light most favorable to the finding to 

determine whether a trier of fact could reasonably have formed a firm belief or conviction 

about the truth of the Department's allegations. In re J.L., 163 S.W.3d 79, 84-85 (Tex. 2005); 

J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed evidence that does 

not support the finding. J.F.C., 96 S.W.3d at 266. In reviewing the factual sufficiency of 

the evidence, we must give due consideration to evidence that the factfinder could 

reasonably have found to be clear and convincing. Id. We must consider the disputed 

evidence and determine whether a reasonable factfinder could have resolved that 

evidence in favor of the finding. Id. If the disputed evidence is so significant that a 

factfinder could not reasonably have formed a firm belief or conviction, the evidence is 

factually insufficient. Id. If the evidence is sufficient as to one ground, it is not necessary 

to address the other predicate grounds because sufficient evidence as to only one ground 

in addition to the best interest finding is necessary to affirm a termination judgment. In 

1 The background facts surrounding the initial removal of the child or evidence relating to the best interest 

of the child are not relevant to the issues as presented by Paula in this appeal, therefore we will not discuss 

them in this memorandum opinion. See TEX. R. APP. P. 47.4.
In the Interest of G.A., a Child Page 3

re N.G., 577 S.W.3d 230, 232-33 (Tex. 2019).2

FAMILY CODE SECTION 161.001(b)(1)(O)

In her second issue, Paula contends that the trial court erred in terminating her 

parental rights pursuant to Section 161.001(b)(1)(O) by finding that she did not establish 

the affirmative defense to failing to complete her court-ordered family service plan as 

provided for in Family Code subsection 161.001(d) by a preponderance of the evidence 

because the failure to complete the service plan was not her fault.

In order to terminate parental rights under section 161.001(b)(1)(O): "(1) the parent 

must have failed to comply with the provisions of a court order, which (2) specifically 

established the actions necessary for the parent to receive custody of the child from the 

Department, which serves as the permanent or temporary conservator of the child." In re 

N.G., 577 S.W.3d 230, 237 (Tex. 2019) (citing TEX. FAM. CODE ANN. § 161.001(b)(1)(O)). Also 

known as a service plan, "[a] trial court order referenced by section 161.001(b)(1)(O) is a 

mandate or directive that establishes some steps or actions necessary for the parent to 

obtain return of the child who is in the Department's custody." Id. at 238. Section 

161.001(b)(1)(O) looks only to a parent's failure to comply with a court order, without 

reference to the quantity of failure or the degree of a parent’s compliance. In re D.N., 405 

S.W.3d 863, 877 (Tex. App.—Amarillo 2013, no pet.). 

2 Because Paula did not challenge the sufficiency of the evidence regarding the finding that termination 

was in the best interest of the child, we will only address one predicate ground.
In the Interest of G.A., a Child Page 4

In this case, Paula does not dispute that she failed to fully comply with all of the 

terms of her service plan. Instead, she argues that the trial court erred by finding that she 

did not prove that she made a good faith effort but was unable to fully comply due to no 

fault of her own as set forth in Section 161.001(d) of the Texas Family Code, which 

provides:

A court may not order termination under Subsection (b)(1)(O) based on the 

failure by the parent to comply with a specific provision of a court order if 

a parent proves by a preponderance of evidence that:

(1) the parent was unable to comply with specific provisions of the court 

order; and

(2) the parent made a good faith effort to comply with the order and the 

failure to comply with the order is not attributable to any fault of the parent.

TEX. FAM. CODE ANN. § 161.001(d); see also In re Z.M.M., 577 S.W.3d 541, 542 (Tex. 2019). 

Section 161.001(d) places the burden of proof on the parent. See TEX. FAM. CODE ANN. § 

161.001(d).

The Department argues Paula has failed to preserve this issue for our 

consideration because Paula failed to specifically plead Section 161.001(d) as an 

affirmative defense as required pursuant to Texas Rule of Civil Procedure 94. See TEX. R.

CIV. P. 94. The Department also contends that even if the affirmative defense had been 

asserted in her pleadings, Paula failed to meet her burden. 

Paula concedes that she was ordered to attend and successfully complete 

individual and family counseling and protective parenting and that she was 
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unsuccessfully discharged from each. Paula also concedes that she was discharged by 

two therapists due to her minimization of the domestic violence issues in her home and 

her alleged mental health issues. Paula argues that "the Department did not attempt to 

find a counselor qualified that could meet [Paula's] therapeutic needs." However, Paula 

also denied that she had any mental health issues that required therapeutic intervention 

at all and provided documentation that she was denied assistance from MHMR because 

she did not qualify for services with them. The therapists had terminated services with 

Paula because she refused to acknowledge that there were any issues to address, not 

because they were unable to "meet [her] therapeutic needs." She does not address how 

her failure to address the domestic violence issues which had led to her child's initial 

removal from her possession or her refusal to address the reasons that the caseworker for 

the Department, the psychologist who performed the psychological evaluation, and the 

two therapists who opined that Paula was not an appropriate parent was "not attributable 

to any fault" of hers. See TEX. FAM. CODE ANN. § 161.001(d)(2) (emphasis added). 

Even if we assume without deciding that Paula did not waive the section 

161.001(d) affirmative defense for failure to specifically plead it, we conclude she failed 

to meet her burden of proof to establish it. Deferring to the trial court's role as factfinder 

and judge of the credibility of the witnesses and the weight to be given to their testimony, 

we cannot say that the trial court erred in concluding that Paula failed to prove by a 

preponderance of the evidence that her failure to comply with the service plan as ordered 
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by the trial court was not attributable to any fault of her own. See TEX. FAM. CODE ANN. § 

161.001(d)(2) (emphasis added). We conclude that the evidence is legally and factually 

sufficient to support the trial court's finding that Paula did not meet her burden of proof 

pursuant to Section 161.001(d) and therefore termination was proper pursuant to Section 

161.001(b)(1)(O). We overrule Paula's second issue. Because we have found the evidence 

was sufficient to support the trial court's finding as to this predicate act, we do not 

address issues one and three. 

CONCLUSION

Having found no reversible error, we affirm the judgment of the trial court.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Neill, and

Justice Johnson

Affirmed

Opinion delivered and filed April 28, 2021

[CV06]