Affirmed and Opinion Filed October 10, 2022

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-00509-CV

IN THE INTEREST OF K.C.F. AND M.C.F., CHILDREN

On Appeal from the 303rd Judicial District Court

Dallas County, Texas

Trial Court Cause No. DF-17-12943-V

OPINION

Before Justices Schenck, Osborne, and Smith

Opinion by Justice Osborne

The trial court terminated Mother’s parental rights to K.C.F. and M.C.F. under 

section 161.004 of the Texas Family Code. TEX. FAM. CODE § 161.004 

(“Termination of Parental Rights After Denial of Prior Petition to Terminate”). In 

two issues, Mother contends the trial court erred because (1) the matter is barred, 

having been previously tried, and (2) no circumstances have substantially changed 

since the trial court’s previous order. Concluding that appellee Texas Department of 

Family and Protective Services (“Department”) met its burden of proof under section 

161.004, we affirm the trial court’s order. See id.
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BACKGROUND

In this appeal, we review the trial court’s June 3, 2022 decree (“2022 Decree”) 

terminating Mother’s parental rights to K.C.F. and M.C.F. The children, twins born 

in 2013, have been in foster care since August 2017. For four years, the children 

were in a foster home where permanent adoption was not possible. After a search 

for a permanent home and with the trial court’s permission, the Department placed 

the children in a new foster home in September 2021 where adoption is a possibility.

In the 2022 Decree, the trial court found that Mother “has failed to comply 

with the provisions of a court order that specifically established the actions necessary 

for the mother to obtain the return of the children that have been in the permanent or 

temporary managing conservatorship of [the Department] for not less than nine 

months as a result of the children’s removal from the parent under Chapter 262 for 

the abuse or neglect of the children, pursuant to section 161.001(b)(1)(O) of the 

Texas Family Code.” The court also found that termination of the parent–child 

relationship between Mother and the children was in the children’s best interest.

The 2022 Decree was the trial court’s ruling on the Department’s motion to 

modify a previous order. The trial court rendered a “Final Order” dated February 28, 

2019 (“2019 Order”) that included findings under family code section 161.001(b) 

regarding Mother. See TEX. FAM. CODE § 161.001 (involuntary termination of 

parent–child relationship). In the 2019 Order, the trial court found that Mother:
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1. Knowingly placed or knowingly allowed the children to remain in conditions 

or surroundings which endangered their physical or emotional well-being, see 

TEX. FAM. CODE § 161.001(b)(1)(D);

2. Engaged in conduct or knowingly placed the children with persons who 

engaged in conduct which endangered the children’s physical or emotional 

well-being, see TEX. FAM. CODE § 161.001(b)(1)(E); 

3. Has constructively abandoned the children who have been in the permanent 

or temporary managing conservatorship of the Department for not less than 

six months, and (1) the Department has made reasonable efforts to return the 

children to Mother, (2) Mother has not regularly visited or maintained 

significant contact with the children, and (3) Mother has demonstrated an 

inability to provide the children with a safe environment, see TEX. FAM. CODE 

§ 161.001(b)(1)(N); and

4. Has failed to comply with the provisions of a court order that specifically 

established the actions necessary for Mother to obtain the return of the 

children who have been in the permanent or temporary managing 

conservatorship of the Department for not less than nine months as a result of 

the children’s removal from the parent under family code Chapter 262 for the 

abuse or neglect of the children, TEX. FAM. CODE § 161.001(b)(1)(O).

The court also found, however, that termination of the parent–child 

relationship between Mother and K.C.F. and M.C.F. was not in the children’s best 

interest. See TEX. FAM. CODE § 161.001(b)(2). The court appointed the Department 

as the children’s sole managing conservator and Mother as a possessory conservator.

In 2020,1the Department moved to modify the 2019 Order, again seeking 

termination of Mother’s rights. The trial court heard the motion over several days in 

February and April 2022. Mother and four other witnesses testified, and several 

 

1 The Department amended its motion to modify twice. The operative pleading at trial was the 

Department’s second amended motion to modify and for termination filed on September 15, 2021.
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exhibits were admitted into evidence. We focus on the evidence relevant to Mother’s 

failure to comply with a court order that the court cited in the 2022 Decree.

The Department offered evidence that the trial court decided not to terminate 

Mother’s parental rights in the 2019 Order to give Mother additional time to 

complete services that were first ordered in 2017. In September 2017, the court 

ordered Mother to participate in parenting classes, a psychological evaluation, 

counseling, a drug/alcohol assessment, and a psychiatric evaluation. In the months 

that followed, the Department filed periodic reports in the trial court showing that 

Mother had not complied with the service plan prepared for the family so that the 

children could be returned home. The Department sometimes reported that Mother 

“has stated that she may be willing to work services moving forward,” but 

subsequent reports and permanency orders continued to reflect that Mother had not 

complied with the court’s orders. In October 2018, Mother filed a counterpetition to 

be named sole managing conservator, and the case proceeded to trial several months 

later, resulting in the 2019 Order.

In the months following the 2019 Order, the Department again filed periodic 

reports and service plans for Mother and the children. Each reflected that Mother 

had not completed the required services. The Department reported that the court had 

referred Mother “back to services as a way to demonstrate she is able to provide a 

stable and safe environment for the children” and that the Department was 

attempting to “achieve permanency” with Mother, but Mother had not complied.
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In a February 3, 2021 “Review Hearing Order,” the court again ordered that 

Mother “complete the following services: parenting classes, psychological 

evaluation, psychiatric evaluation, individual counseling, and follow all the 

recommendations of the service providers.” In August 2021, Mother was evaluated 

by a psychologist who recommended that the children remain in protective custody 

and that any contact between Mother and the children be supervised. The 

psychologist also recommended a psychiatric evaluation, individual counseling, and 

parenting classes, and noted that Mother “need[s] to secure employment and 

housing.”

Dwayla Harper, the Department caseworker, testified that at the time of trial, 

Mother had completed only her psychological exam. Mother started a parenting class 

but stopped attending after the first session. She also started and stopped individual 

counseling. Harper testified that she referred Mother to another agency when Mother 

reported that she and the initial counselor were incompatible. Mother attended

“maybe a couple of sessions” before the agency discontinued the sessions because 

Mother “was not attending.” Harper also testified that Mother missed visits with the 

children. Harper testified that for several years the Department had “really tried to 

engage [Mother] to reconnect with her children,” but that “has not happened.” She 

testified that the children were thriving in foster care but “[t]hey need their forever 

home.”
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The Department also offered evidence of its efforts to find a placement for 

K.C.F. and M.C.F., first with a relative and later in a home where adoption was 

possible. Mother herself was living with an aunt, but Mother never requested that 

any home study be done to determine if the children could be placed there—or in 

any other home—with Mother. There was a family group conference which resulted 

in K.C.F. and M.C.F.’s older siblings being placed, but no relative was available as 

a placement for K.C.F. and M.C.F. They remained with a foster family who was not 

able to adopt them. The Department then searched for a family who could adopt the 

children, and as we have noted, the children moved to such a placement in September 

2021.

In this appeal of the 2022 Decree, Mother contends that (1) “[t]his matter, 

including the [Department’s] Motion to Modify, the trial, and the final order, is 

barred because it is re-litigation of the same suit and issues,” and (2) there are no 

grounds for modification because there has not been a substantial change in 

circumstances since the trial court’s 2019 Order.

STANDARD OF REVIEW AND APPLICABLE LAW

The involuntary termination of parental rights involves fundamental 

constitutional rights. In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). For this reason, 

“[d]ue process requires the application of the clear and convincing evidence standard 

of proof in parental termination cases.” In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). 

“Clear and convincing evidence” is defined in the family code as “the measure or 
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degree of proof that will produce in the mind of the trier of fact a firm belief or 

conviction as to the truth of the allegations sought to be established.” TEX. FAM.

CODE § 101.007.

“In a legal sufficiency review, a court should look at 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.F.C., 

96 S.W.3d at 266. In a factual sufficiency review, we consider “whether the evidence 

is such that a factfinder could reasonably form a firm belief or conviction about the 

truth of the State’s allegations,” giving “due consideration to evidence that the 

factfinder could reasonably have found to be clear and convincing.” Id. (internal 

quotation omitted). 

The Department sought termination of Mother’s parental rights under family 

code section 161.004. That section provides:

§ 161.004. Termination of Parental Rights After Denial of Prior

Petition to Terminate

(a) The court may terminate the parent–child relationship after rendition 

of an order that previously denied termination of the parent–child 

relationship if:

(1) the petition under this section is filed after the date the order 

denying termination was rendered;

(2) the circumstances of the child, parent, sole managing 

conservator, possessory conservator, or other party affected by 

the order denying termination have materially and substantially 

changed since the date that the order was rendered;
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(3) the parent committed an act listed under Section 161.001 

before the date the order denying termination was rendered; and

(4) termination is in the best interest of the child.

(b) At a hearing under this section, the court may consider evidence 

presented at a previous hearing in a suit for termination of the parent–

child relationship of the parent with respect to the same child.

TEX. FAM. CODE § 161.004. Subsection (a)(2) is at issue in this appeal.

Under subsection (a)(2), whether circumstances have “materially and 

substantially changed” since the date of the previous order is a question of fact. In 

re H.M.O.L., No. 01-17-00775-CV, 2018 WL 1659981, at *11 (Tex. App.—Houston 

[1st. Dist.] Apr. 6, 2018, pet. denied) (mem. op.). “There are no definite guidelines 

as to what constitutes a material and substantial change in circumstances under 

section 161.004.” Id. (collecting cases). “Rather the determination is made by the 

facts of each case.” Id. “A material and substantial change in circumstances may be 

established by either direct or circumstantial evidence.” Id.

DISCUSSION

Mother’s issues arise from her contention that there has been no change in 

circumstances since the trial court’s 2019 Order finding that termination was not in 

the children’s best interest.

1. Res judicata and collateral estoppel

In her first issue, Mother contends the Department’s request to terminate her 

parental rights is barred by res judicata and collateral estoppel. She contends that no 
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new issue about “her behavior and actions” has arisen since the 2019 Order and that 

the Department’s evidence related only to her pre-2019 conduct.

The Department responds that Mother has waived this issue because she did 

not plead res judicata or collateral estoppel, object to the admission of evidence on 

that basis, or make any argument to bring the matter to the trial court’s attention. See 

In re I.M., No. 06-21-00002-CV, 2021 WL 1991271, at *13 (Tex. App.—Texarkana 

May 19, 2021, pet. denied) (mem. op.) (res judicata and collateral estoppel defenses 

were waived when not pleaded or tried by consent). Mother does not provide any 

citations to the record showing how she preserved this complaint. Her arguments 

arise from her contention, addressed below in our discussion of her second issue, 

that there was no material change in circumstances between the 2019 Order and the 

2022 Decree. Waiver aside, we conclude that the trial court’s ruling is not barred by 

res judicata or collateral estoppel.

The Department sought modification under family code section 161.004. As 

explained in In re T.J., No. 11-19-00259-CV, 2020 WL 746765, at *1 n.2 (Tex. 

App.—Eastland Feb. 13, 2020, no pet.) (mem. op.), “Section 161.004 has been 

regarded as a mechanism through which the Department may, upon proving a 

material change in the circumstances of an affected party, defeat a parent’s claim of 

res judicata when the Department seeks termination after a prior petition seeking 

termination was denied.” See also In re J.R., No. 07-12-00003-CV, 2012 WL

1605738, at *3 (Tex. App.—Amarillo May 8, 2012, no pet.) (mem. op.) (same).
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Subsection 161.004(a)(3) requires evidence that “the parent committed an act

listed under Section 161.001 before the date the order denying termination was

rendered.” TEX. FAM.CODE § 161.004(a)(3). Section 161.004(b)specifically permits

the court to consider evidence from a previous hearing in a suit for termination

involving the same parent and child in making the required determinations. See, e.g.,

In re N.R.T., 338 S.W.3d 667, 678–79 (Tex. App.—Amarillo 2011, no pet.).

Here, the Department offered clear and convincing evidence—mostly

undisputed by Mother—that both before and after the 2019 Order, Mother failed to

comply with court orders that were made to ensure that Mother had the counseling

and other services she needed to provide a safe and stable home for her children. See 

In re J.F.C., 96 S.W.3d at 266. This evidence was admissible under family code

section 161.004(b). TEX. FAM. CODE § 161.004(b); In re J.R., 2012 WL 1605738, at

*3. We decide Mother’s first issue against her.

2. Material and substantial change in circumstances

In her second issue, Mother argues that the Department failed to carry its 

burden to prove that circumstances have materially and substantially changed since 

the 2019 Order. Mother argues that nothing has changed. She argues that the 

Department “is still requesting” that she complete psychological and psychiatric 

evaluations, parenting classes, and individual counseling, as it has requested since 

2017. She argues that the children are still in foster care. They were not moved to an 

adoptive placement until over a year after the Department sought termination of 
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Mother’s parental rights, and “[n]o party can guarantee that adoption will occur” 

since the Department failed to offer any evidence about potential obstacles to the 

placement.

As we have explained, there are no definite guidelines as to what constitutes 

a material and substantial change in circumstances under section 161.004. See In re 

F.M.E.A.F., 572 S.W.3d 716, 725 (Tex. App.—Houston [14th Dist.] 2019, pet. 

denied). Courts have determined that material and substantial changes have occurred 

when a parent has failed to complete a family service plan or when permanent 

adoption has been sought. See In re M.J.W., No. 14-16-00276-CV, 2016 WL 

4206046, at *8 (Tex. App.—Houston [14th Dist.] Aug. 9, 2016, pet. denied) (mem. 

op.) (parent failed to complete a family service plan by failing to visit the child and 

attend medical appointments); In re N.R.T., 338 S.W.3d at 679 (foster parent sought 

permanent adoption).

In In re J.R., the court concluded there was evidence to support a finding of 

material and substantial change even though “much in [the parents’] life has 

remained the same: unstable.” In re J.R., 2012 WL 1605738, at *5. The court 

continued:

However, [the parents’] continued instability has manifested itself in 

new ways, ways that have now impacted their relationships with their 

children and the Department such that their own circumstances have 

materially and substantially changed. The Department no longer saw 

reunification as feasible because [the parents] had failed to complete 

services since [two years before trial] and had maintained only 

sporadic, infrequent visits with the girls.
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Id. Further, two of the children were “with a family who seeks to adopt them both.” 

Id. at *4. Consequently, the court concluded that “the children are significantly 

closer, both psychologically and logistically, to places in which they seek adoptive 

families and stability.” Id.; see also In re H.M.O.L., 2018 WL 1659981, at *12 

(considering changes in adoption prospects as well as parents’ continued drug use in 

determining whether material and substantial change occurred under section 

161.004).

Similarly here, Mother’s life remains unstable. In the five years since the trial 

court first ordered her to complete services, Mother has resisted complying or has 

refused to comply, completing only one requirement after the Department filed its 

motion to modify. The trial court questioned the parties in some detail about 

Mother’s in-person and virtual visits with the children, and heard evidence that 

Mother’s participation was inconsistent. Mother did not offer any evidence of a plan 

for reunification with her children. The children have now been in foster care for 

half of their lives, and the Department offered evidence that all family placement 

options for the children had been exhausted. See In re J.R., 2012 WL 1605738, at *5 

(citing testimony that children should not “languish in foster care throughout 

childhood”). 

Viewing the evidence in the light most favorable to the court’s finding, we 

conclude that the trial court could have formed a firm belief or conviction that a 

material and substantial change in circumstances had occurred since the trial court 
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rendered the 2019 Order. See In re J.F.C., 96 S.W.3d at 266. We decide Mother’s 

second issue against her.

CONCLUSION

The trial court’s June 3, 2022 decree terminating Mother’s parental rights to 

K.C.F. and M.C.F. is affirmed.

220509f.p05

/Leslie Osborne//

LESLIE OSBORNE

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

IN THE INTEREST OF K.C.F. AND 

M.C.F., CHILDREN

No. 05-22-00509-CV 

On Appeal from the 303rd Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DF-17-12943-

V.

Opinion delivered by Justice 

Osborne. Justices Schenck and Smith 

participating.

In accordance with this Court’s opinion of this date, the trial court’s June 3, 

2022 Decree of Termination is AFFIRMED.

Judgment entered this 10th day of October, 2022.