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

O N MOTION FOR REHEARING

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

After considering R.J.’s motion for rehearing, we deny the motion but withdraw

our Au gust 11, 2022 opinion and judgment and substitute the following opinion and judgment in their place.
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 t heir 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)

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

. See Te x. Fam. Code § 109.002(d) ; Tex. R. App. P. 9.8.2 ( c onstructively a bandoning ) , (O) (fail i n g to co mply with court

- ordered services)

. F o r the following reasons , we affirm the t ri al cour t ’ s final decree of t e 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 pre g nant with
the Twins

. Mo ther did not receive pr enatal 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 th e 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 mo th er 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 ju st passing

t hrough ” and that they “ actual ly were residing in Sou th Caro lina ” and Father representing that

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 bo dy ’ s changes and stuff like that. I knew if there was an y c o ncern. I

— I know, mo re o r 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 w as p regnant but not that she was having t wins

.3 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 t im e, 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 ps yc hologica l eval uation , ind ividual therapy , and a nurturing or protective parenti ng program
. T hey also were ordered t o obtai n and
maintain employment or income to meet their own and the ir children ’ s needs, to obtain a nd
maintain s afe a nd appropriate housi ng , 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 the y 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 w a 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 evi de nce
showed that the childre n were placed with Aunt ab out one mo nth before trial, that they were

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 chil d was in Sou th Caro lina w ith fa mil y. ”4 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 hi ldren

. 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 nd

a son wh o liv es with his maternal grandfather

. 4 M other ’ 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 tm en t 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 grandfathe r
. 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
. M ot her completed 4 of 41 required drug tests, and Fa ther c ompl eted 9 of 40 re quired drug tests. The

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 [h er] son passed awa y
. ”5 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 ed it car ds. 7 The officer also testified t hat in Januar y 2021, he

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

ag ai n st 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 h ethe 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 ve d “ 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

a cc e ss to W i F i and tra nsportation

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

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 s how er ” and denied having a ny cont rol le d substances on her.

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

.6 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 , th a t 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 p a sse 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 a ny other i ll egal dr ugs
. In its final d ecree of termin ation, t he trial court termi nated both parents ’ 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 wit h the court

- o rd 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 r ights 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 ). Th e applic abl e 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 of7 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 ev idence 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 d ing re quire s a court to lo ok at all
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 e vi ewing 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. 2 009)

.

“ 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 convict io n 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. , 2 09 S.W.3d 1 05 , 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 w hen assessi ng the credibility and demeanor of witnesses ” ).8 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 tria l court ’ s
f in d 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 erminatio n o f parent al rights when ther e
is also best inte re s t f inding but requiring review of endangerment findings )

. 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 Fami ly Co de for a buse 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

- or d 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. , 4 02 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 r ily includ e s 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 was9 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, subsectio n (O) does no t 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.) )

. 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 rem ov al.
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 docu m entation ” sh owing 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 , d ressed appr op riate 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 p a rents

appe ar 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 Tw ins] , ” and i n it s ex parte or der as to Child, th e trial court found that there was10 “ an immediate danger to the physical health or sa fety of the Child [H.M

. ] or that the Child has
been [the] victim of negle ct or sexu al abuse and that c ontinuation in the hom e would be contra ry

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 pe rsons entitled to p osse ss ion of the child and for the
child to 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 Te x. App. LEXIS 279 7, 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 subst antial risk of

co nt inuing 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 tem porary orders f in di ng “ continuing11 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 also could have credited the evidence about the Department ’ s
initial involvement with t he children

. Mother admitted that the Department beca me involved
with the children because of its concerns with drug test results and use, that she had used marijuana when she was pregnant with the Twins, and that she did not receive pr enatal care for

t he twins. See W .D. v. Texas Dep’t of Family & Protective Servs. , No. 03

- 14

- 00581

- CV,
2015 Tex. App. LEXIS 1063, at *4 (Tex. App.

– Austin 2015, no pet.) (mem. op.) (noting that

“ [ d ] rug abuse during pregnancy constitutes conduct that endan gers a child’s ph ys ical and
emotional well

- being” (quoting In r e M.R.J.M. , 280 S.W.3d 494, 503 (Tex. App.

— Fort Worth 2009, no pet.) ) ) ; In re M.B. , No. 12

- 04

- 00350

- CV, 2005 Tex. App . L EXIS 9939 , at * 10 (Tex. App.

— Tyler Nov. 30, 2005, no pet.) (mem. op.) ( co ncluding that evi de nce t hat child tested positive for cocaine and methadone establish ed that child remov ed from parents for neglect under subsection O)

. The Departme nt ’ s investigator also testified that the Department became involved
when it received a r eport that Moth er a nd one of the Twins tested positive for amphetamine
when the Twins were born ; t hat Mother “did not provide any sort of explanation for why she tested positive at the time of birth ” ; that the inves tigator asked the parents to submit to dr ug

test ing , but the y did not do so ; and that the parents provided inacc urate in formation about Child, resulting in the Departm ent seeking an d being granted a writ of attachment. See In re A.M. , No. 09

- 18

- 00295

- CV, 201 9 Tex. App. LEXIS 117, at * 16 (Tex. Ap p.

— Beaumont Jan . 10 , 2019,

no pet. ) (mem. o p.) ( concluding that parent ’ s “ conflicting answers concerning the whereabouts
of [child] ” when parent ’ s child ren were at vu l nerabl e age s and unable to protect thems elves as12 support ing that child ren removed for abu se or neglect ) ; W.D

. , 2015 Tex. App. LEXIS 1063,

at *4

. 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 , 22 8 S.W.3d 6 74, 6 77 ( 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
De c. 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 methampheta mine arou nd Chi ld, whether he
observed Mo th er 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 Amendmen t when asked ab out domes t ic violence b e twee n
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 ndi ng that the
children we r e 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 over rule Mother ’ s s econ d issue

.13 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 Twin s, a nd C hi ld

. Mother object ed 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 trut h of

ma tter as s erte d )

.

“ 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. , 18 0 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 or principles. ’ ” Id. (quoting Downer v. Aquamarine Op erators, I nc

. , 7 01 S.W.2d 238, 241

– 42 (T ex. 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 resul ts for the li mi ted 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 purpos e o f proving t h at t he 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

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

— Te xarka na 20 04 , no pet.), as suppo rt ing her position that the ch alle ng ed testimon y was i nadmissi ble . We f ind th at case14 Affirmati ve Defense As part of her second issue , Mother also “ asser ts her affirmativ e de fense

— 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 eran ce o f the evide nce that “ t he parent was una ble 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 o de § 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. , No. 03

- 22

- 00076

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

– 1 1 (Tex. A pp.

— Au stin 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 prov ision of the co urt order t hat the State cla ims 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 , “ [T] he Department set up services on the opposite
side of town, notifie d pa rent 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 timon y about how her f i rst two

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 cont rast, in this case, t h e Depart m ent ’ s repres entative did
no t tes t ify as to what the d rug test results were , and the rec ords of t he drug t est results were not admitted

.15 attorneys and the f irst 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 vi ce throughout the cas e. Although some evide nce 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 ervice s, p articularly r equi red drug te sting

. The e vidence 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 visi ts b ut that they decl ined he r 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 Fi fth Amendme nt when she was a sked the last tim e she possessed methamphetamine. Th e casewor ker testified that she rest arted all r ef errals in July 2 021 ; offere d tra nsportation and provided bu s p asse s to the parents ; and offered a
conference room at the Depar tmen t to connect to W i F i , wh i 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
fa ctua lly sufficient to suppo r t 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 an y fa ult of [Mo ther]. ” See T ex.
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

.16 CONCL USION Having overrule d the p ar e nts ’ two issues challeng ing the trial court ’ s predicate

grou nd fin d ing s under subs ection (O) , we affirm t he tr ial court ’ s final decree of termi nation. 10

____ ______________________________________ Melissa Goo dwi n , J ustice
Before Justi ce s Goodwin, Baker, and Kelly
A ffi rmed on Motion for Rehearing
Filed : September 15, 2022

10 B ecause we have concluded that the evidence was le gally and fact ually sufficient to su pport termination unde r subs ect ion (O) and o verruled the p arents ’ 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 )

.