TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-16-00157-CV

G. H., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT

NO. 14-1297, HONORABLE GARY L. STEEL, JUDGE PRESIDING

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

A jury determined that father G.H. and mother J.O. had knowingly allowed their

three daughters—Mary (5), Hailey (4), and Sally (2)—to remain in conditions or surroundings that

endangered their well-being, engaged in conducted that endangered their well-being, and failed to

comply with a court order establishing necessary actions to regain custody and that termination of

their parental rights was in the children’s best interest. SeeTex. Fam. Code § 161.001(b)(1)(D), (E), 1

(O), (2). After a lengthy jury trial, the trial court signed an order terminating G.H.’s and J.O.’s

parental rights, and G.H. appealed. We affirm the order of termination. 2

We will refer to the children and their paternal grandmother by pseudonyms and to the 1

children’s parents by their initials. See Tex. R. App. P. 9.8.

 J.O. did not appeal from the termination of her parental rights. 2
BACKGROUND3

G.H. and J.O. are the unmarried biological parents of the three children. The couple

had been together for about six years at the time of trial. The family’s involvement with the

Department of Family and Protective Services began in May 2012 when the Department received

a referral shortly following the birth of Hailey that both Hailey and her mother had tested positive

for cocaine in the hospital. A Department caseworker, Staci Shockley, testified that during a 2012

interview, G.H. denied that he had any knowledge of J.O.’s cocaine use during the pregnancy and

that he did not use any illegal drugs himself. Shockley also testified that in 2012 the parties and

the children’s paternal grandmother, Marcia, participated in a facilitated family team meeting

to discuss J.O.’s drug use and to set up services for both parents. The participants discussed the

harmful effects of drug use during pregnancy, and the Department requested G.H. to submit to drug

and alcohol assessments, complete an online parenting course, and participate in individual and

couple’s counseling. Citing a belief that the parents were participating in the requested services, the

Department closed the case a few months later.

In the fall of 2013, J.O. became pregnant with the couple’s third child, Sally. G.H.

testified that he had no memory of accompanying J.O. to any prenatal appointments while she was

pregnant with Sally or alerting any doctors or medical professionals that J.O. had a history of using

cocaine during her second pregnancy. In June 2014, J.O. was at home with G.H. and their two older

children when J.O. began having contractions and gave birth to Sally before the parties could get to

The facts in the background section are derived from the clerk’s record, trial testimony,

3

and exhibits.

2
a hospital. J.O. and Sally were then transported to the hospital and after routine drug screening were

both found to be positive for cocaine. Sally was immediately transferred to the neonatal intensivecare unit because of the staff’s concerns about seizure activity. A team of doctorstreated the newborn

for five days with no reported contact with G.H., and Sally was ultimately discharged into the

Department’s care. The Department was granted temporary managing conservatorship of all three

children and placed Sally and her siblings with Marcia and her husband and began a second

investigation of the parents.

Shockley testified that because she had noticed some developmental delays in the

children, she recommended to Marcia that the children be assessed for therapy services. Apart from

a few routine medical appointments, there was no evidence at trial that Marcia had followed up on

Shockley’s recommendation by the time the children were removed from her care after about six

months and placed with a foster family, with whom the children have lived throughout the pendency

of these proceedings. While living with the foster family, the three children began various therapies,

including speech therapy for all three children, psychotherapy for the older two, and occupational

therapy for the youngest. Additionally, Sally was diagnosed with Fetal Alcohol Syndrome (FAS).

The district court signed an order in August 2014 incorporating a family plan of

service, with the stated permanency goal of family reunification. Among the many requirements

contained within the plan of service, G.H. was required to complete protective parenting classes;

complete a psychological evaluation; participate and successfully complete individual therapy and

follow all of the therapist’s recommendations; and provide truthful and accurate information to the

Department, courts, and all service providers. About a year later, the service plan was modified to

3
include additional requirements: (1) completion of the Batterer’s Intervention Program (BIPP);

(2) abstention from alcohol use and submission to alcohol screens within 8 hours of requests;

(3) submission to drug tests when requested; (4) completion of drug, AA/NA, and Al-Anon classes;

(5) completion of couples’ and family therapy with J.O.; and (6) submission to a new psychological

evaluation and follow-through with its recommendations.

Shockley testified that during the second investigation, G.H. initially denied any

drug use of his own and portrayed J.O. as the sole parent with a drug problem. However, in a

psychological evaluation he underwent in September 2014, G.H. admitted to having an extensive

history of drug abuse, including using cocaine several times a week for a ten-year period, and having

been arrested for DWI as both a juvenile and adult and having multiple arrests for public

intoxication. G.H.’s psychological evaluation indicated that he “has a high probability of having

a Substance Use Disorder” and has “Bipolar Disorder, Manic, Severe, Without psychotic features.”

G.H. testified that he used cocaine with J.O. on multiple occasions during their sixyear relationship and that he continued to use cocaine three to four times a year individually apart

from J.O. He testified that J.O.’s cocaine “binges” could be extreme and that any “genius” could

recognize signs of drug use but that he was not aware that J.O. had used any illegal drugs during her

pregnancies and had not used any cocaine with her during her pregnancies, and that he had last used

cocaine within a month of Sally’s birth.

The children had been living with the foster parents for about a year at the time of

trial, and their foster mother testified that she and her husband would be seeking to adopt the

children if G.H.’s and J.O.’s parental rights were terminated.

4
DISCUSSION

G.H. asserts that the evidence is legally and factually insufficient to support the

jury’s findings that (1) termination was in the children’s best interest and (2) he committed

conduct constituting any of the three alleged statutory grounds for termination. See Tex. Fam. Code

§ 161.001(b)(1)(D), (E), (O), (2). In conducting a factual-sufficiency review, we view the entire

record and will uphold a finding unless “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” that the Department’s allegations are true. In re A.B.,

437 S.W.3d 498, 502–03 (Tex. 2014) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). In

conducting a legal-sufficiency review, we consider “all the evidence in the light most favorable

to the finding to determine whether a reasonable trier of fact could have formed a firm belief

or conviction that its finding was true.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting

J.F.C., 96 S.W.3d at 266).

We will first review the sufficiency of the evidence supporting the jury’s finding

under subsection (b)(1)(O) that G.H. “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 § 161.001(b)(1)(O). Department caseworker Shockley testified that G.H. did not

complete all of the services outlined in the court-ordered family service plan. Specifically, she 4

G.H. contends that a July 2015 “amended” service plan “superseded” the previously filed 4

original plan of August 2014, see Tex. Fam. Code § 263.104(a), (b) (providing that service plan

“may be amended at any time” and that “amended service plan supersedes the previously filed

service plan”), and that the “original plan” was, therefore, “defunct” at the time of trial, and G.H.’s

failure to comply with the requirements in the “original plan” may not constitute evidence of his

5
testified that G.H. had not: submit[ted] to all requested alcohol testing; completed BIPP; submitted

to all random drug screens; completed couples’ and family therapy with J.O.; nor completed drug,

AA/NA, and Al-Anon classes. Shockley testified that the Department requested drug and alcohol

tests for G.H. on November 9 and December 8, 2015 and a drug test on June 10, 2015, but that he

never completed those tests.

Shockley further testified that she never received any documentation from G.H. or

the service provider to verify completion of the couples’ or family counseling or of his attendance

at the drug, AA/NA, and Al-Anon classes. The BIPP requirement was added to the service plan by 5

court order on July 23, 2015. However, Sherry Murphy with the Family Crisis Center testified that

G.H. did not submit to an assessment at the center until October 20, 2015, whereupon the center

recommended that he participate in a 28-week program. Murphy testified that each participant is

allowed to miss up to five classes, needing to attend only 23 classes to complete the program.

noncompliance. However, the court’s July 2015 order, in addition to ordering several modifications

to the service plan (such as the BIPP requirement), specifically stated that “all previous orders issued

by this Court shall continue in full force and effect” and that “the plan of service for the parents

previously filed with the Court or attached to this order and incorporated herein by reference as if

the same were copied verbatim in this order, is APPROVED and made an ORDER of the Court.”

Accordingly, there is no merit to G.H.’s argument about section 263.104(b), and our references to

the “service plan” include all iterations of the service plan, including the original August 2014 plan

and the July 2015 court-ordered modifications to the plan.

At trial, the court admitted into evidence a letter offered by G.H. from a couples’ therapist 5

listing thirteen sessions that G.H. and J.O. had attended together and noting the date when “couples’

therapy sessions terminated” (for reasons unexplained) as well as a certificate noting that G.H. had

“completed 12 hours of Chemical DependencyTraining” conducted bythe Alcohol Treatment Series

(A.C.T.S.). G.H. has cited no evidence indicating that he had attended AA/NA or Al-Anon classes.

6
Murphy testified that at the time of trial, G.H. had completed only seven individual classes and used

four of his absences.6

Based on our review of the entire record, we conclude that the evidence is legally

and factually sufficient to support termination of G.H.’s parental rights under subsection (b)(1)(O)

for his failure to comply with all requirements of the court-ordered family service plan. See id.;

In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.) (holding that substantial

compliance or completion with service plan is not enough to avoid termination finding under

subsection (b)(1)(O), which also does not “make a provision for excuses” for noncompliance).

Accordingly, we will not summarize the evidence supporting the other two statutory grounds

challenged by G.H. on appeal, although we note that our review of the record leads us to conclude

that the jury’s findings under subsections (b)(1)(D) and (E) pertaining to child endangerment are

supported as well. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (holding that sufficient proof

of one statutory termination ground, in tandem with finding that termination is in best interests of

children, is sufficient to support termination order); Tex. R. App. P. 47.1 (requiring court of appeals

to hand down written opinion that is as brief as practicable but that addresses every issue raised and

necessary to final disposition of appeal).

We next consider whether the evidence is sufficient to support the jury’s finding

that termination of G.H.’s parental rights was in the children’s best interest. The jury instructions

On cross-examination, Murphy testified that the center received a referral from the 6

Department on September 28, 2015. On appeal, G.H. contends that based on this timeline, it would

have been impossible to complete the entire 28-week class by the time of trial beginning on January

20, 2016. However, both Murphy and Shockley testified that a referral is not necessary from the

Department and that an individual is free to contact the center and set up an intake interview on his

own, which G.H. failed to do.

7
listed the Holley factors as “[s]ome, but not all, factors to be considered” in this determination. See

Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (providing list of factors to consider when

evaluating best interest: child’s wishes, emotional and physical needs of child, emotional and

physical danger to child, parenting abilities of individuals seeking custody, programs available to

assist those individuals, competing plans for child, stability of home, parent’s actions shedding light

on parent-child relationship, and any excuses for parent’s actions). The Department is not required

to prove all nine factors, see In re C.H., 89 S.W.3d 17, 27 (Tex. 2002), and a best-interest analysis

may be based not only on direct evidence but also on circumstantial evidence, subjective factors, and

the totality of the evidence as a whole. See In re S.H.A., 728 S.W.2d 73, 86 (Tex. App.—Dallas

1987, writ ref’d n.r.e.). Evidence supporting the statutory grounds for termination is also probative

of best interest. C.H., 89 S.W.3d at 28.

Several witnesses testified about the children’s extensive ongoing medical and

therapeutic needs, including speech, individual, and occupational therapy that the children would

need to continue until they were developmentally on target. Rather than accept the diagnoses and

recommendations by the professionals who testified at trial, G.H. testified that he distrusted the

experts and that, if his children were returned to him, he would “definitely be taking all of them to

the doctor so we can see if there really is anything wrong” and if “any of this stuff that [the

Department has] made up through the case is true.” Shockley testified that while the children were

living with Marcia, G.H. had unlimited access to visit with his children as long as the visits were

supervised byMarcia. Marcia testified that during this approximately six-month period of unlimited

visitation rights for G.H., he “came about three times [a week] and stayed for about an hour [each

time].”

8
Shockley testified that she was concerned that the children’s parents would not “be

able to take the girls to their multiple appointments,” and that “[Sally] alone is probably going to

need at least three days a week of occupational therapy, and that doesn’t even include the speech

therapy or the follow-ups for fetal alcohol syndrome” and that both Mary and Hailey have ongoing

appointments for speech and individual therapy. She testified that she had no concerns about the

foster parents’ ability to provide “a safe and stable home” for the children and that the Department

intended to begin the adoption process with the foster family if the Department was awarded

permanent managing conservatorship of the children.

Shockley summarized the reasons she believed that the children should not be

returned to their parents: the parents put their own needs before their children’s; the children need

a safe and stable home without the presence of criminal activity and exposure to drugs; the children

have significant developmental delays, needs, and medical and therapyappointments that the parents

are likely unable to adequately address; and due to the parents’ drug abuse, the children would face

a higher risk of exposure to various types of abuse. She testified that adoption by the foster family

would be in the children’s best interest.

G.H. testified that he had never provided health insurance for the children previously,

that he did not have any health insurance set up for them if they were returned to him, and that

he would “have to look into it.” He testified that he and J.O. were going to give their “rocky”

relationship “one more shot.” He testified that he did not learn how to change a diaper until some 7

time after the children had been moved from his mother’s home to the foster home and that J.O. had

Evidence supported at least one incident of domestic violence between the parents and 7

G.H.’s tendency to be controlling of J.O.

9
been the “hands-on” parent. He testified that for “these 18 months that I’ve been in this case, I have

not used drugs,” despite his own admission later on cross-examination to testing positive for cocaine

twice during the pendency of the case. One of those times he admittedly re-tested himself and

“barely failed” after the Department’s test indicated that he tested at “53 times the normal cutoff

limit [indicating] cocaine usage.”

G.H.’s individual therapist, Renese Johnson, testified that when she first began

working with G.H. in September 2014, he told her that he did not know how to change a diaper, and

she talked with him about the importance of “spending more time practicing with the kids.” She

testified that it would be concerning to her if G.H. only spent three hours a week with his children

during the six-month period when he had unlimited access to the children while they were living

with Marcia, depending on the circumstances and the reasons for the minimal time spent with

the children.

The children’s psychologist, Paul Johnson, testified that he would have concerns

about their safety if their parents continued to abuse drugs while the case was pending. He also 8

testified that he believed the children tended to distrust adults and that their distrust had resulted

from poor supervision and limit-setting by their parents, who he believed are “lacking” in being

“present and monitoring what—where the kids are and what they’re up to.”

The court-appointed special advocate (CASA)forthe children, Dianna Price, testified

that she believed it would be in their best interest to remain with their foster family and that she

would have concerns about their emotional and physical safety and that they would not receive the

care, stability, and medical attention they need if they were returned to their parents. She further

Evidence showed that both parents continued to use drugs during the pendency of the case.

8

10
testified about her observation at visitations that G.H. is not a “hands-on” parent and that J.O. is the

“only provider in regards to the girls there—to meet their emotional, mental and physical [needs].”

Price expressed concern about G.H.’s failure to be “open and honest with the Department or CASA”

during the pendency of the case. Price testified that although the children are “extremely bonded to

and love their parents,” they are also “extremely bonded to” the foster parents and that she believed

the children should stay with the foster family even if it meant no further contact with their parents.

The foster mother testified that at the beginning of the case she was hopeful that the

children would be able to return to their parents but that she later decided to intervene in the case

because of her observations of the children’s behavior and of their visits with G.H. and because of

“the things that [the children have] told me.” She testified that as the children have become more 9

comfortable with her, they have begun “telling [her] more about their past” and had begun calling

her and her husband “Mommy” and “Daddy.” She also testified that she observed a visitation that

G.H. had with his children at which G.H. became very angry and raised his voice about a mess

associated with changing Sally’s diaper and the refusal of Department and other persons present

to help him with the task.

From all of this evidence, the jury could reasonably have concluded that G.H. is

unable or unwilling to provide for his children’s emotional and physical needs and to provide a stable

environment for them, and that their needs would best be met by the foster parents, who desire to

adopt the children. See In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.)

(noting that factfinder may consider parent’s inability to provide adequate care for child, lack of

The trial court sustained the parents’ hearsay objections about what the children had told 9

the foster mother.

11
parenting skills, and poor judgment when looking at child’s best interests). The jury could also have

reasonably given “great weight” to the “significant factor” of G.H.’s drug-related conduct, see

Dupree v. Texas Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas

1995, no writ); see also May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ

denied) (noting that evidence of past misconduct or neglect is permissible as inference that parent’s

future conduct may be measured by past conduct), and considered G.H.’s intention to continue to

closely associate with J.O. as a choice to allow endangering persons to be around his children and

potentially create a volatile and unstable environment for the children, based on evidence that the

couple had some history of domestic violence and use of illegal drugs together.

We conclude that the entirety of the evidence allowed the jury to form a firm belief

or conviction that termination of G.H.’s parental rights is in the children’s best interest. We overrule

G.H.’s issues on appeal.

CONCLUSION

Having overruled G.H.’s issues on appeal, we affirm the trial court’s termination

decree.

__________________________________________

David Puryear, Justice

Before Chief Justice Rose, Justices Puryear and Pemberton

Affirmed

Filed: August 17, 2016

12