### 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. 03-16-00157- CV

G. H., Appellant

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

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 207 TH JUDICI AL DISTRICT NO. 14- 1297 , H ONO RAB LE GARY L. STEEL, JUDGE P RESIDING

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

A jury deter

mined that fathe r G.H. and mother J .O. h ad knowing ly allowed their three daug hters—Mar

y (5), Hailey (4), and Sally (2)—to rema in in conditions or surrounding s that endang ere d their we ll-being , eng ag ed in conduc ted that enda ng ere d their we ll-being , and failed to comply with a cour

t order e stablishing nec essar y actions to reg ain custody and that ter

mination of their pare ntal rig hts was in the children’ s best interest. See Tex. Fa m. Code § 161.001(b)( 1)(D) , (E), 1 (O), (2)

. After a leng thy jury trial, the trial court signe d an order terminating G.H.’s and J .O.’s
pare ntal rig hts, and G.H. a ppeale d. We affir

m the order

of termination. 2

We will ref

er to the child ren and their pater nal g randmother by pseudony ms and to the 1 children’ s pare nts by

their initials. See Tex. R. App. P . 9.8. J .O. did not appea l from the ter mination of her pa

renta l rig hts. 2BACK GR OUND 3
G.H. and J .O. are the unmarrie d biologica l pare nts of the three children. The couple had been toge ther for about six y ear s at t h e time of trial. The family ’s involvement with the Depa rtment of Family and P rotec tive Service s beg an in May 2012 when the Depa rtment rec eived

a re fer ral shortly

following the bi rth of Hailey that both Hailey and her mother had te sted positive for coca ine in the hospital. A Depa rtment case worke r, Staci Shockley , testified that during a 2012 interview, G.H. denied tha t he had a ny knowledg e of J.O.’s coca ine us e during the preg nancy and

t h at h e d i d not use any illega l drug s himself. Shockley also testified that in 2012 the parties an d the children’ s pater

nal g randmother , Marc ia, participa ted in a fac ilitated family team meeting

to di s cu ss J .O.’s drug use and to set up service s for both pare nts. The participa nts discussed the harmful eff

ects of drug use during preg nancy , and the Depa rtment reque sted G.H. to submit to drug and alcohol assessments, complete an online pare nti n g co urse, and participa te in individual and couple’ s counseling

. Citi ng a belief that the pare nts wer e participa ting in the reque sted service s, the Depa rtment closed the c ase a

fewmonths later.
I n the fa ll of 2013, J .O. bec ame pr eg nant with the couple’ s third child, Sally

. G.H. testified that he had no memory of acc ompany ing J .O. to any prena tal appointments while she was
preg nant with Sally or aler ting any doctors or medical profe ssionals that J .O. had a history of using

coca ine during her second preg nancy . I n J une 2014, J .O. was at home with G.H. and their two older children when J .O. beg an having contra ctions and g ave birth to Sally befor e the parties could g et to

The fac ts in the backg round secti o n are derive d from the cler k’s rec ord, trial testimony , 3 and exhibits

. 2a hospital. J .O. and Sally wer e then transporte d to the hospital and afte r routine drug scre ening wer e

both found to be positive for coca ine. Sally was immediately transfe rre d to the neonata l intensivec a r e u n it b e c a u s e o f th e s ta f

f ’ s c o n c e r n s a b o u t s e iz u r e a c ti v it y . A te a m o f d o c to r s tr e a

te d th e n e w

b o r n for five day s with no repor ted contac t with G.H., and Sally was ultimately discharg ed into the Depa rtment’s car e. The Depa

rtment was g rante d temporar y manag ing conser

vatorship of all three children and place d Sally and her siblings wi t h Marc ia and her husband and beg an a second investiga tion of the pare nts.

Shockley testified that beca use she had noticed some devel o pmental delay s in the children, she rec ommended to Marc ia that the children be assessed for thera py service s. Apar

t from

a few routine medical appointments, there was no evidenc e at trial that Marc ia had followed up on Shockley ’s rec ommendation by the time the children wer e remove d from her car e afte r about six months and place d with a foster family , with whom the children have lived throug hout the pendenc y of these proce eding s. Whil e living with the foster family , the three children beg an various thera pies, inclu d i ng speec h thera

py for all three children, psy chother apy for the older two, and occupational thera py for the y oung est. Additionally , Sally was diag nosed with F etal Alcohol Sy ndrome (F AS). The district court signe d an o rd er in Aug ust 2014 incorporating a family plan of service , with the stated perma nency g oal of family re u nification. Among the many require ments contained within the plan o f service , G.H. was require d to complete protec tive pare nting classes; complete a psy cholog ical evalua tion; participa te and succe ssfully complete individual thera py and follow all of the thera

pist’s rec ommendations; and provide truthful and acc urate information to the Depa rtment, courts, and all service providers. About a y ear later, the service plan was modified to

3include additional require ments: (1) completion of the Ba tterer ’s I nterve ntion Prog ram (B I PP);

(2) abst en t i o n from alcohol use and submissi on to alcohol scre ens within 8 hours of reque sts; (3) submissi on to drug tests when reque sted; (4) completion of drug , AA/NA, and Al-Anon classes; (5) completion of couples’ and family thera py with J .O.; and (6) submissi on to a new psy cholog ical evalua tion and follow-throug h with its recommendations.

S h o ck l ey testified that during the second investiga tion, G.H. initially denied any drug use of his own and portray ed J .O. as the sole pare nt with a drug p ro b l em . Ho weve r, in a
psy cholog ical evaluation he u n d er we n t in September 2014, G.H. admitt ed to having an ex tensive history of drug abuse, including using coca ine sever al times a wee k for a ten-y ear period, and having been arr es ted for DWI as both a juvenile and adult and having multipl e arr ests for public intox ication. G.H.’s psy cholog ical evalua tion indicated that he “has a high probabili ty of having

a Substance Use Disorder ” and has “B ipolar Disorder , Manic, Severe , Wit hout psy chotic fea tures.”

G.H. testified that he used coca ine with J .O. on multipl e occa sions during their six

y ear rela tionship and that he continued to use cocaine three to four times a y ear individually

apar t fr o m J

. O. He testified that J .O.’s cocaine “bing es” could be ex treme and that any “g enius” c o u l d

rec og nize signs of drug use but that he was not awa re that J .O. had used any illega l drug s during her
preg nancie s and had not used any coca ine with her during her preg nancie s, and that he had last used

coca ine within a month of Sally ’s birth.

The children had been living with the foster pare nts for about a y ear at the time of trial, and their foster mother testified t h at she and her husband would be seeking to adopt the children if G .H.’s and J.O.’s pare ntal rig hts were terminated.

4DISCUSSIO N
G.H. asser

ts that the evid ence is leg ally and fac tually insufficient to support the jury ’s finding s that (1) termination was in the children’ s bes t i n t er est and (2) he committed conduct constituting any of the three alleg ed statutory g rounds for termination. See Tex. Fam. Code § 161.001(b)( 1)(D) , (E), (O), (2). I n conducting a fac tual-suffic iency revie w, we view the entire

rec ord and wi l l uphold a finding unless “the disputed evidenc e that a rea sonable fac tfinder could

not have cre dited in favor of the finding is so signific ant that a fac tfinder could not rea sonably h av e formed a firm belief or conviction” that the Depa rtment’s alleg ations 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)). I n conducting a leg al-suf

fi ci ency revie w, we consider “all the evidenc e in the light most favor able

to the finding to deter

mine whether a rea sonable t ri er o f fa ct could have formed a firm belief

or conviction that its finding was true.” In re J.P.B. , 180 S.W .3d 5 7 0 , 5 7 3 (T ex . 2005) (quoting
J.F.C. , 96 S.W .3d at 266).

We will first revie w the sufficie ncy of the evidenc e supporting the jury ’s finding under subsection (b)(1 )(O) that G.H. “fa iled 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 th e ch i ld.”
Tex. F am. Code § 161.001(b)( 1)(O) . Depa rtment ca seworke r Shockley testified that G.H. did not complete al l of the service s outlined in the court-or dere d family service plan. Specifica lly , she 4

G.H. contends that a J uly 2015 “ame nded” service plan “super seded” the previously filed 4 orig inal plan of Aug ust 2014, see Tex. Fam. Code § 263.104(a) , (b) (providing that service plan “may be amende d at any time” and that “ame nded service plan superse des the previously filed service plan”) , and that the “orig inal plan” was, there fore , “def unct” at the time of trial, and G.H.’s failure to comply with the require ments in the “orig in al p l an ” m ay not constitute evidenc e of his 5testified that G.H. had not: submit[ ted] to all reque sted alcohol testing; completed BI PP; submitt ed

to a ll r andom drug scre ens; completed couples’ and family thera py with J.O.; nor

completed dr

ug , AA/NA, a

nd Al-Anon c lasses. Shockley testified that the Depa rtment reque sted drug and alc ohol tests for G.H. on N ovember 9 and De cembe r 8, 2015 and a drug test on J une 10, 2015, but that he

never completed those te sts. Shockley further testified t hat s h e n ever rec eived any documentation from G.H. or the servic e provide r to verif y completion of the c ouples’ or f amily counseling or of his a ttendance

at the drug , AA/NA, and Al-Anon classes. The BI PP require ment was added to the service plan by 5

court order on J uly 23, 2015. Howeve r, Sherry Murphy with the Family Crisis Center testified that
G.H. did not submit to an assessment at the cente r unt i l Oc t o b er 2 0, 2015, wher eupon the cente r

rec ommended that he participate in a 28-week prog ram. Murphy t es t i fi ed that eac h participa nt is al l o we d t o miss up to five classes, needing to attend only 23 classes to complete the prog ram.

noncompliance

. Howeve r, the court’s J uly 2015 order , in addition to order ing sever al modifications to the service plan (such as the BI PP require ment), specific ally stated that “all previous order s issued by this Court shall continue in full forc e and eff ect” and that “the plan of ser v i ce fo r t h e p arents previously filed wit h the C ourt or attached to this order and incorporated he rein by ref ere nce as if the same w ere copied verbatim in this order , is APPR OVED and made an ORDER of the Court.” Acc ording ly , there is no merit to G.H.’s ar g ument about sec tion 263.104(b), and our ref ere nces to the “ser vice plan” include all iterations of the service plan, including the orig inal Aug ust 2014 plan and the July

2015 court-or dere d modifications to the plan. At trial, the court admitted into evidenc e a letter offe red by G.H. from a couples’ thera pist 5 listi ng thirteen sessions that G.H. and J .O. had attended toge ther and noting the date when “couple s’ thera py sessions terminated” (for rea sons unexplained) as well as a cer tificate noting that G.H. had “complete d 12 hours of Chemical Depe n d e n c y T r a in in g ” conducte d by the Alcohol Trea tment Series (A.C.T.S.). G.H. has cited no evidenc e indicating that he had attended AA/NA or Al-Anon classes. 6Murphy testified that at the time of trial, G.H. had completed only seven individual classes and used

four of his absence s. 6
Ba s ed on our revie w of the entire rec ord, we conclude that the evidenc e is l ega l l y and fac tually sufficie nt to support termination of G.H.’s pare ntal rig hts under subsection (b)( 1)(O) for his failure to comply with all require ments of the court-or dere d family service plan. See id. ; In re J.S. , 291 S.W .3d 60, 67 (Tex. App.—Eastland 2009, no pet.) (ho l d i n g t h at substantial

com p l iance or completion with service plan is not enoug h to avoid termination finding under subsection (b)( 1)(O) , wh i ch al s o does not “make a provision for excuses” for noncompliance ).
Acc ording ly , we will not summarize the evidenc e support ing the other two statutory g rounds challeng ed by G.H. on appea l, a lthough we note that our re view of the rec ord leads us to c onclude that the jury ’s finding s under subsections (b)( 1)(D) and (E) perta ining to child en d an ger m ent are supported as w ell. See I

n re A.V. , 113 S.W .3d 355, 362 (Tex. 2003) (holding that sufficie nt proof of one statutory termination g round, i n tandem with finding that termination is in best interests of children, is sufficie nt to support termination order ); Tex. R. App. P. 47.1 (re quiring court of appea ls

to hand down written opinion that is as brief as prac ticable but that addre sses ever y issue raised and

nece ssary to final dispositi on of appe al).
W e n ex t consider whether the evidenc e is sufficie nt to support the jury ’s findin g that termination of G.H.’ s pare ntal rig hts was in the c hildren’s be st interest. The jury instructions

On cross-e x amination, Murphy testified that t h e ce n t er rec eived a ref err al from the 6 Depa rtment on September 28, 2015. On appea l, G.H. contends that based on this timeline, it would have been impossibl e to complete the entire 28-we ek class by the time of trial beg inning on J anuar y 20, 2016. Howeve r, both Murphy and Shockley testified that a ref err al is n o t n ec es s ar y from the Depa rtment and that an individual is fre e to contac t the cente r and set up an intake interview on his own, which G.H . failed to do. 7listed the Holley fac tors as “[s] ome, but not all, fac tors to be considere d” in this deter mination. See Holley v. Adams , 544 S.W .2d 367, 372 (Tex. 1976) (providing list of fac tors to co n s ider when evalua ting best interest: child’s wishes, emotional and phy sical needs of child, emotional and phy sical dang er to child, pare nting abilities of individuals seeking custody , prog rams available to assist those individuals, competing plans for child, stability of home, pare nt’s actions shedding light

on pare nt-child rela tionship, and any excuses for pare nt’s actions). The Depa rtment is not require d

to prove all nine fac tors, see In re C.H. , 89 S.W .3d 17, 27 (Tex. 2002) , and a best-intere st analy sis
may be based not only on direc t evidenc e but also on circ umstantial evidenc e, subjective fac tors, and the totality of the evidenc e as a whole. See In re S.H.A. , 728 S

. W

. 2 d 7 3 , 86 (Tex. App.—Dallas 1987, writ ref

’d n.r.e.)

. Evidence supporting the statutory g rounds for termination is also probative of best intere st. C.H. , 89 S.W .3d at 28.

Severa l witnesses testifi ed about the children’ s extensive ong oing medical and thera peutic needs, including speec h, individual, and occupa tional th er ap y that the children would need to c ontinue until they wer e developmentally on targ et. Rather tha n acc ept the diag noses and

rec omme n d at ions by the profe ssionals who testified at trial, G.H. testified that he distrusted the experts a nd that, if his c hildren wer e returne d to him, he would “def initely be taking all of them to the doctor so we can see if there rea lly is any thing wr o n g” an d if “any of this stuff that [t he Depa rtment has] made up throug h the case is true.” Shockley testified that while the children wer e living with M ar cia, G.H. had unlimit ed acc ess to visit with his children as long as the visits wer e supervised by Marc ia. Marc ia testified that during this approximately six -month period of unlimit ed visitation rights for G .H., he “ came about t hree times [a wee k] and stay ed for about an hour

[each time] .”
8Shockley testified that she was conce rned that the children’ s pare nts w ould not “be

able to take the g irls to their multipl e appointments,” and that “[Sally ] alone i s p robably g oing to need at least three day s a wee k of occupational thera py , and that does n ’t ev en i n cl ude the speec h thera py or the follow-ups for feta l alcohol sy ndrome” and that both Mary and Hailey have ong oing appointments for speec h and individual thera py . Sh e testified that she had no conce rns about the foster pare nts’ ability to provide “a safe and stable home” for the children and that the Depa rtment intended to beg in the adop t i o n p rocess with the foster family if the Depa rtment was awa

rded
perma nent manag ing c onserva torship of the childre n. Shockley summarized the rea sons she believed that the children should not be
returne d to their pare nts: the parents put the ir own needs befor e their c hildren’s; the c hildren nee d

a safe and stable home without the prese nce of criminal activity and exposure to drug s; the children have signific ant developmenta l delay s, needs, and med ic a l and thera py appointments that the pare nts

are likely unable to adequa tely addre ss; and due to the pare nts’ drug abuse, the children would fac e

a highe r risk of exposure to various ty pes of abuse. She testified that adoption by the foster family would be in the childre n’s best intere st.

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 wer e returne d to him, and t h at he would “have to look into it.” He t es t i fi ed that he and J .O. wer e g oing to g ive their “roc ky ” rela tionship “one more shot.” He testified that he did not lear n how to chang e a diaper until some 7
time afte r 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 b et we en t h e pare nts and 7 G.H.’s tende ncy

to be controlling of J.O. 9been the “hands- on” pare nt. He testified that for “these 18 months that I ’ve been in this case , I have

not used drug s,” despite his own admission later on cross-e x amination to testing positive for coca ine

t wi ce during the pendenc y of the case . One of those times he admittedly re- tested himse l f an d “bar ely failed” afte r the Depa rt m en t ’s t es t indicated that he tested at “53 times the normal cutoff limit [i ndicating ] cocaine usa g e.”

G.H.’s individu al t h er apist, Renese J ohnson, testified that when she first beg an working with G.H. in September 2014, he told her that he did not know how to chang e a diaper , and sh e t al k ed with him about the importance of “spending more time prac ticing with the kids.” She testified that it would be conce rning to her if G.H . only spent three hours a we ek with his c hildren during the six -month period when he had unlimit ed acc ess to the children while they wer e living with Marc ia, d epending on the circ umstances and the rea sons for the minimal time spent with the childre n. The children’ s psy cholog ist, Paul J ohnson, testif i ed t h at he would have conce rns about their safe ty if their pare nts continu ed t o ab use drug s while the case was pending

. He also 8
testified that he believed the children tended to distrust adults and that their distr u st had resulted from poor super v i s i o n an d limit -setting by their pare nts, who he believed are “lac king” in being “pre sent and monitoring what—whe re the kids are a nd what they ’re up to.” The court-a

ppointed sp e c ia l a d

v o c a te ( CA SA ) f

o r th e c h il d

ren, Dianna Price, testified that she b el i ev ed i t woul d be in their best interest to rema in with their foster family and that she would have conce rns about their emotional and phy sical safe ty and that they would not rec eive the

car e, stability , and medical attention they need if they wer e returne d to their pare nts. She further

Evidence showed that both pare nts continued to use drug s during the pendenc y of the case . 8 10testified about her observa tion at visitations that G.H. is not a “hands- on” pare nt and that J .O. is the

“only provider in reg ards to the g irls there —to meet their emotional, mental and phy sical [needs].” Price expressed conce rn about G.H.’s failure to be “open and honest with the Depa rtment or CASA” during the pendenc y of the case . Price testified that althoug h the children are “extremely bonded to and love their pare nts,” they are also “extremely bonded to” the foster pare nts and that she believed the children should stay with the foster family even if it meant no further contac t with their pare nts.

The foster mother testified that at the beg inning of the case she was hopeful that the children would be able to return to their parents b u t t h at s he later decide d to intervene in the case beca use of her observa tions of the children’ s behavior and of their visits with G.H. and beca use of “the things that [t he children have] told me.” She testified that as the children have become more 9
comforta ble wit h her, the y

have be g un “telling [her] m ore a bout their past” a

nd had beg un calling her and her husband “Mommy ” and “Da ddy .” She also testified that she observe d a visitation that
G.H. had with h i s children at which G.H. beca me very ang ry and raised his voice about a mess associate d with chang ing Sally ’s diaper and the ref usal of Depa

rtment and other persons prese nt to help him with the task.

Fr om all of this evidenc e, the jury could rea sonably have conclude d t h at G.H. is unable or unwilling to provide for his children’ s emotional and phy sical needs and to provide a stable environment for them, and that their needs would best be met by the foster paren t s , who desire to adopt the childre n. See In re C.A.J. , 122 S.W .3d 888, 893 (Tex. A pp.—For t Worth 2003, no pet.) (noting that fac tfinder may consider pare n t ’s inability to provide adequa te car e for child, lack of

The trial court sustained the pare nts’ hear say objections about what the children had told 9 the foster mother. 11pare nting skills, and poor judgme nt when looking at child’s best interests). The jury could also have

rea sonably g iven “g rea t weig ht” to the “sig nificant fac tor” of G. H. ’s drug -re lated conduct, see Dupree v. Texas D ep’t of Protec tive & 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. A pp.—Corpus Christi 1992, writ denied) (noting that evidenc e of past misconduct or neg lect is permissible as infere nce that pare nt’s future conduct may be measured by past conduct), an d considere d G.H.’s intention to continue to closely associate with J .O. as a

choice to allow endang ering persons to be a round his children a

nd potentiall y cr eate a volatil e and unstable environment for the children, based on evidenc e that the couple ha d some history

of domestic violence and use of illega l drug s toge ther.
We c onclude that the entirety of the evidenc e allowed the jury to f orm a firm belief

or conviction that termination of G.H.’s pare ntal rig hts is in the children’ s best interest. We overr ule G.H.’s issues on a

ppeal.

CONCLUSION Having overr

uled G.H.’s issues on appea l, we aff irm the trial co u rt ’s termination decr ee.

__________________________________________ David Pury ear , J ustice
Be fore Chief J ustice Rose, Jus tices Pury ear and Pember

ton Affir med Filed: Aug ust 17, 2016

12