Opinion issued November 22, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-16-00450-CV

———————————

IN RE T. R. H.

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Case No. 2015-02985J

MEMORANDUM OPINION

This is an accelerated appeal from a judgment terminating Mother’s parental 

rights to T.R.H. We affirm. 

BACKGROUND

Mother had two children. The oldest, K.H, was 11-months old when T.R.H. 

(the subject of this suit) was born. Sometime in the year following T.R.H.’s birth, 
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K.H. died. His death was ruled a homicide, and charges were brought against his 

caregiver. Mother maintained custody of T.R.H.

When CPS recommended a psychiatric evaluation of Mother following 

K.H.’s death, she cooperated. K.H.’s death was the first occasion CPS (“the 

Department”) had to investigate Mother. Mother failed a drug test, and Mother’s 

caseworker learned that Mother had a history of leaving her children with various 

caregivers. The Department opened an investigation out of concern that Mother 

“may not possess the cognitive abilities to care for” T.R.H. 

During her evaluation, Mother reported that she has no work history and had 

dropped out of high school, but had returned to try to earn a high school diploma. 

She reported to the doctor that she smokes marihuana every day. The evaluator 

was concerned about Mother’s taking inadequate care of her 1-year-old son, 

T.R.H., during the evaluation. Mother did not bring T.R.H. to the evaluation in a 

car seat, and T.R.H. was wearing dirty clothes. T.R.H.’s diaper needed changing, 

which Mother resisted doing until the evaluator insisted. 

Mother had trouble controlling T.R.H.’s behavior. Mother was encouraged 

to feed T.R.H. during the evaluation, but Mother only provided him with a baby 

bottle of water. The evaluator offered food, which immediately calmed T.R.H. 

down. The evaluator surmised that either Mother was incapable of recognizing 

when her child was hungry or that Mother did not have food to feed him. When it
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became clear that T.R.H. was sleepy, the evaluator observed that Mother lacked 

“maternal connection to the naptime process” and did not know how to “utilize any 

soothing techniques with the child.” 

Mother’s intelligence was estimated to be in the below-average range, and 

she demonstrated memory difficulties. But she exhibited an appropriate range of 

emotional expression. Mother showed concern regarding the wellbeing of her 

children and expressed a desire to raise her children. 

The following opinion and recommendations were given following the 

evaluation:

One challenge for [Mother] is her history of leaving her children with 

various caregivers. It does not appear as if the client uses good and/or 

rationale judgment regarding the care of her children. Another 

challenge is her cognitive abilities. Cognitive testing suggests she falls 

in the below average range of intellectual functioning. Another

challenge for her is being overwhelmed with caring for her son. It is 

unclear at what age the child would need to be in order for [Mother] to 

care for the child; however, two scenarios can be given. The child 

would have to be old enough to care for himself independently and/or 

[Mother] would have to acquire the skills to needed to care for her 

son. Another challenge is the possibility of unresolved grief regarding 

the death of her first-born son, [K.H.]. One strength is her ability to 

comply with the CPS requirements. She appeared concerned about the 

well being of her son but it is unclear if she has a good understanding 

of what is needed to adequately raise him.

Given this information, the following treatment suggestions are 

outlined below.

RECOMMENDATIONS

1. [Mother] would benefit from parenting classes to assist her in 

understanding, and responding to the physical, emotional, 

developmental, and intellectual needs of her children.
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2. [Mother] would benefit individual counseling. She has a 

number of unresolved family issues that may be impacting her 

ability to effectively parent.

3. [Mother] would benefit from grief counseling. It is unclear 

whether or not [Mother] appropriately grieved the death of her 

first-born son, [K.H.], and her inability to appropriately grieve 

may be impacting her parenting skills.

4. [Mother] would benefit from a referral from the Texas 

Workforce Commission. [Mother] reported she has never been 

employed. Based on behavioral observations, she may not 

possess the skills needed to secure employment. She may be 

able to utilize their services in order to secure employment 

appropriate for her level of skills.

A. Mother’s Family Service Plan 

 The Department did not seek to remove T.R.H. from Mother’s care or seek

temporary managing conservatorship until Mother tested positive for marihuana 

and cocaine. On July 8, 2015, after T.R.H. was removed, Mother agreed to a 

Family Service Plan. The goal was reunification with Mother, and the target 

services completion date was June 6, 2016. The July 8, 2015 Family Service Plan

identified the following concerns, goals, and required services:

INITIAL CONCERNS:

[Mother] has not demonstrated that she is able to care for her young 

son.

Prior to CPS removing [Mother]’s son, it was recommended that she 

complete services In Family Based Safety Services and she did not.

[Mother] did not complete the required services in FBSS.

[Mother] does not understand the reason for CPS intervention and 

continues to minimize the agency’s efforts to assist her.
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SERVICE PLAN GOALS (CHANGES NEEDED TO REDUCE 

RISK):

[Mother] will show the ability to parent and protect the child.

[Mother] will learn how her emotions and behavior may effect the 

emotions and behaviors of the child.

[Mother] will demonstrate the ability to put the needs of her child 

ahead of her own.

[Mother] will demonstrate the ability to protect child from future 

abuse or neglect and will show concern for future safety of her child.

[Mother] will demonstrate an ability to change the pattern of behaving 

that resulted in abuse/neglect.

TASKS AND SERVICES

1. COMPLETE and PARTICIPATE in INDIVIDUAL 

COUNSELING: [Mother] will participate in and successfully 

complete Individual therapy. DFPS will refer for these 

services. If the client reschedules/misses two appointments then 

she will be financially responsible for obtaining the service.

2. [Mother] will provide her current caseworker with any and all 

sources of income for herself by the 15th of each month. Proof 

of income may include: Social Security award letters, Food 

Stamp certification papers, pay check stubs. If [Mother] is not 

currently working, she must provide her caseworker with proof 

of her registration with The Worksource, and a list of at least 3 

employers (name and telephone number) that she has submitted 

an application and/or resume to per week. This list is due to the 

DFPS caseworker by the last day of each month.

3. MAINTAIN/OBTAIN STABLE HOUSING: [Mother] will 

maintain stable and safe housing for a minimum of six months 

consecutively. She will demonstrate that she can provide 

housing that will protect her children and provide the 

consistency and stability that they need. [Mother] will provide 

the DFPS worker with a current lease along with current utility 

bills to show proof of a safe and structured home environment. 

In the event that another occupant moves into [Mother] current 

residence, she will provide the current CPS caseworker with the 
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current occupant’s name, date of birth, social security numbers, 

and copy(s) of needed Identifying information for that person 

within 48 hours of their occupying the current residence. 

[Mother] will allow her DFPS caseworker access to her current 

residence to verify safety. If [Mother] moves, she will notify 

her current caseworker within 24 hours of the relocation, and 

provide new leasing information for the current residence.

4. MAINTAIN CONTACT WITH THE AGENCY: [Mother] will 

maintain contact with her assigned DFPS caseworker. . . . . . 

[Mother] is to provide her case worker with accurate phone 

number and address so that she can be notified of family visits 

and information pertaining to her case. In the event that 

[Mother] is unable to be reached, she needs to ensure that her 

case worker has an emergency contact number that she can be 

reached at.

5. [Mother] will participate in drug/alcohol testing upon request 

by DFPS or a provider. [Mother] will show progress by testing 

negative for drugs or alcohol. Any refusal of drug/alcohol 

testing will be considered as testing positive. Any missed 

appointment will be considered as testing positive.

6. [Mother] will participate and complete a drug/alcohol 

assessment and follow all recommendations which may include 

but are not limited to: in-patient treatment, out-patient 

treatment, after-care programs, intensive programs, support 

groups (such as AA or NA), and substance abuse therapy. 

DFPS will refer for these services.

7. [Mother] will participate in and successfully complete a 

psychosocial assessment and follow all recommendations. 

DFPS will refer for these services. If the client 

reschedules/misses two appointments then she will be 

financially responsible for obtaining the service.

THE TRIAL

At the May 4, 2016 trial seeking termination of Mother’s parental rights, 

neither Mother nor either alleged father attended, but there was an attorney 

appointed to represent each of their interests, as well as the interests of T.R.H.
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Before trial started, the following documents were admitted into evidence: (1) 

Mother’s April 28, 2015 Psychological Evaluation, (2) Mother’s drug test results 

from July 16, 2015 reflecting marihuana in her system, (3) Mother’s Family 

Service Plan, and (4) a July 16, 2015 Status Hearing Order. Mother’s Department 

caseworker, J. Green, testified. Green testified that the Department sought to help 

Mother after the death of K.H., while T.R.H. remained in her custody. The 

Department sought removal of T.R.H. after Mother failed her drug screens and it 

was determined that Mother did not have the ability to care for T.R.H. and that she 

was not following the safety plan put in place as a condition of T.R.H. remaining 

in her care. 

Green testified that T.R.H. is currently placed in a private agency foster-toadopt home. The Department considered a potential paternal aunt for adoption, but 

her “DNA came back that she is 20 times unlikely to be the paternal aunt.” She 

still remains a possibility though, as an adoptive placement, because it is possible 

that she is a half sibling of one of T.R.H.’s alleged fathers, rather than a full sibling 

as the Department initially understood. 

Green testified that, out of the entire laundry list of services Mother was 

required to perform under her Family Service Plan, the only task she completed 

was the psychological assessment. Further, the Department timely referred Mother 

for each of her services, and she did not show up the referrals. She did not attend 
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any requested random drug screening, and would not return to the psychologist that 

did her initial evaluation for subsequent services, telling Green that “she didn’t 

know how to get there.” Green testified that Mother is not employed, and does not 

consistently visit T.R.H. 

Green stated that the Department was seeking to terminate Mother’s parental 

rights on three grounds (1) “she engaged in conduct that endangered her child 

based on her drug tests,” (2) “she constructively abandoned her child based on her 

failure to visit significantly during the case,” and (3) she “fail[ed] to work her 

family plan of service.” 

Finally, Green testified that termination of Mother’s rights was in T.R.H.’s 

best interest because he in a “safe, stable environment.” He is in a long-term 

placement that offers stability and is doing much better than he did when he was 

with Mother. 

On cross-examination, Green explained that Mother’s visits were sporadic. 

She started visiting once a month. After she was an hour late to one of those visits, 

Green made it Mother’s responsibility to call and schedule visits. After that, 

Mother would visit once every two months. 

Green also testified that the alleged paternal aunt’s home study would have 

been approved and T.R.H. placed there if the Department had determined that the 

alleged aunt was actually related to T.R.H. Because T.R.H. had a previous 
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relationship with this alleged aunt, placing him with her would have been in 

T.R.H.’s best interest at that point. 

Green further explained that T.R.H. was initially placed with a maternal 

cousin. He was removed, however, because he was not being properly taken care 

of. He has been in his current foster placement since then, for about a year. He is 

doing very well in that placement, and the foster parent wishes to adopt him. 

The court announced that it would terminate on all three grounds sought by 

the Department and granted the ad litem’s request for a “no-move” order to ensure 

T.R.H. was not moved out of his current placement without ad litem approval. 

The court memorialize his ruling in a final judgment terminating Mother’s 

rights on the following grounds: 

6. Termination of Respondent Mother []’s Parental Rights

6.1. The Court finds by clear and convincing evidence that 

termination of the parent child relationship between [Mother] 

and the child, [T.R.H.], the subject of this suit is in the child’s 

best interest.

6.2. Further, the Court finds by clear and convincing evidence that 

[Mother] has:

6.2.1. engaged in conduct or knowingly placed the child with 

persons who engaged in conduct which endangers the 

physical or emotional well-being of the child, pursuant to 

§161.001[(b)](1)(E), Texas Family Code;

6.2.2. constructive]y abandoned the child who has been in the 

permanent or temporary managing conservatorship of the 

Department of Family and Protective Services or an 

authorized agency for not less than six months and: (1) 

the Department or authorized agency has made 
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reasonable efforts to return the child to the mother; (2) 

the mother has not regularly visited or maintained 

significant contact with the child; and (3) the mother has 

demonstrated an inability to provide the child with a safe 

environment, pursuant to §161,001[(b)](1)(N), Texas 

Family Code;

6.2.3. 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 child who has been in 

the permanent or temporary managing conservatorship of 

the Department of Family and Protective Services for not 

less than nine months as a result of the child’s removal 

from the parent under Chapter 262 for the abuse or 

neglect of the child, pursuant to §161.001[(b)](1)(O), 

Texas Family Code;

6.3 IT IS THEREFORE ORDERED AND DECREED that the 

parent-child relationship between [Mother] and the child, 

[T.R.H.], the subject of this suit is finally and forever

terminated.

ISSUES ON APPEAL

Mother raises the following issues on appeal:

Issue I: Was the evidence legally and factually sufficient to support 

the termination of appellant’s parental rights under 

§161.001(b)(1)(N)? 

Issue II: Was the evidence legally and factually sufficient to support 

the termination of appellant’s parental rights under 

§161.001(b)(1)(E)?

Issue III: Was the evidence legally and factually sufficient to support 

the termination of appellant’s parental rights under 

§161.001(b)(1)(O)?

Issue IV: Was the evidence legally and factually sufficient to support 

the best interest termination finding?
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APPLICABLE LAW AND STANDARD OF REVIEW

A parent’s rights to the “companionship, care, custody, and management” of 

his or her child is a constitutional interest “far more precious than any property 

right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982); 

see also In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (“[A] parent’s interest in 

maintaining custody of and raising his or her child is paramount.”). Therefore, we 

strictly scrutinize termination proceedings and strictly construe the involuntary 

termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 

(Tex. 1985). However, “the rights of natural parents are not absolute” and “[t]he 

rights of parenthood are accorded only to those fit to accept the accompanying 

responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). Recognizing that a 

parent may forfeit his or her parental rights by their acts or omissions, the primary 

focus of a termination suit is protection of the child’s best interests. Id.

In a case to terminate parental rights by the Department under § 161.001 of 

the Family Code, the Department must establish, by clear and convincing 

evidence, that (1) the parent committed one or more of the enumerated acts or 

omissions justifying termination and (2) termination is in the best interest of the 

child. TEX. FAM. CODE ANN. § 161.001(b) (West 2008). Clear and convincing 

evidence is “the measure or 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 
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established.” TEX. FAM. CODE ANN. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 

(Tex. 2002). “Only one predicate finding under section 161.001[(b)](1) is 

necessary to support a judgment of termination when there is also a finding that 

termination is in the child’s best interest.” A.V., 113 S.W.3d at 362.

In a legal sufficiency review in a parental-rights-termination case, the 

appellate 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. J.F.C., 96 S.W.3d at 266. We assume 

that the factfinder resolved disputed facts in favor of its finding if a reasonable 

factfinder could do so, disregarding all evidence that a reasonable factfinder could 

have disbelieved or found to have been incredible. Id. If, after conducting a legal 

sufficiency review of the record, we determine that no reasonable factfinder could 

form a firm belief or conviction that the matter that must be proven is true, then we 

must conclude that the evidence is legally insufficient. Id.

In conducting a factual-sufficiency review in a parental-rights termination 

case, we must determine whether, considering the entire record, including evidence 

both supporting and contradicting the finding, a factfinder reasonably could have 

formed a firm conviction or belief about the truth of the matter on which the 

Department bore the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). 

We should consider whether the disputed evidence is such that a reasonable 
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factfinder could not have resolved the disputed evidence in favor of its finding. 

J.F.C., 96 S.W.3d at 266. “If, in light of the entire record, 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, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 

105, 108 (Tex. 2006).

A. Sufficiency of the Evidence to Support Termination Under Section 

161.001(b)(1)(O)

Subsection (O) allows termination when the parent has failed to satisfy 

conditions of a service plan. Specifically, it provides that the court can order 

termination upon a finding, by clear and convincing evidence, that a parent:

(O) 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 who has been in the permanent or temporary 

managing conservatorship of the Department of Family and Protective 

Services for not less than nine months as a result of the child’s 

removal from the parent under Chapter 262 for the abuse or neglect of 

the child.

TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (West 2008). Texas courts generally 

take a strict approach to subsection (O)’s application. In re D.N., 405 S.W.3d 863, 

877 (Tex. App.—Amarillo 2013, no pet.). The burden of complying with the court 

order is on the parent. Id. at 878. Courts do not measure the “quantity of failure” 

or “degree of compliance.” Id. at 877. Rather, courts only look for a parent’s 

failure to comply. See In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, 
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no pet.) (holding subsection (O) does not intend an evaluation of a parent’s partial 

achievement of plan requirements); see also In re A.W., 01-15-01030-CV, 2016 

WL 3022824, at *7 (Tex. App.—Houston [1st Dist.] May 26, 2016, no. pet.) 

(mem. op.) (holding substantial compliance with a court-ordered service plan may 

be insufficient to avoid termination). 

Despite this strict approach, the Department must present evidence that a

court-ordered plan established specific actions the parent must take for the return 

of the child. D.N., 405 S.W.3d at 877–78. In other words, the service plan must be 

specific enough to allow Mother’s compliance to be objectively measured. Id. at 

878. 

With regard to subsection (O), Mother’s sole argument on appeal is that the 

Department did not establish by clear and convincing evidence that Mother failed 

to complete her family plan services because the testimony and evidence on this 

topic was allegedly too vague. Mother concedes that Green unequivocally testified 

that, as of the date of trial, Mother had not completed any of her services required,

except the psychological assessment. Green testified that Mother did not go back 

to the psychologist when she was referred, but Mother complains that Green did 

not specify the date of the referral so that it is impossible to know if the Family 

Service Plan was in effect. She makes the same argument about the drug tests that 

Mother did not show up for. The Family Service Plan required Mother to 
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“randomly drug test” and Green testified that she requested that Mother take those 

tests “on several occasions,” but that Mother failed to comply. Mother insists that 

the Department should have put on evidence of each date that Mother did not 

comply. 

Taking Green’s evidence as a whole, we disagree with Mother that the 

evidence is legally and factually insufficient to demonstrate that Mother did not 

complete the required services under section 161001(b)(1)(O). Green testified that 

Mother had not completed her service tasks, and then gave numerous examples 

(such as not showing up for any requested drug test). Mother’s argument that 

Green’s testimony lacked specific dates notwithstanding, the fair inference from 

Green’s testimony, taken in context, is that she was discussing examples of 

Mother’s failure to comply with services. It would be nonsensical to assume, as 

Mother asks us to do, that despite the Family Service Plan required the Department 

to subject Mother to random drug screens, the Department would have only 

requested drug screens before the Family Service Plan was implemented, and 

requested none during the time the Family Service Plan was in force.

The same is true of the referral to the psychologist that Mother was required 

to see as part of the Family Service Plan. Green testified that Mother completed 

her psychological evaluation before T.R.H. was removed. Green then testified that 

she “referred her back to that same psychologist for subsequent services,” but that 
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Mother did not go because she said “she didn’t know how to get there.” Given 

Green’s testimony that the Department was seeking termination because Mother 

failed to complete her Family Service Plan and that Mother in fact did not 

complete any services except the psychological assessment (coupled with the lack 

of any evidence that Mother did complete any of her service tasks), we hold that 

the trial court could have determined, by sufficient clear and convincing evidence, 

that termination was warranted under § 161.001(b)(1)(O).

We thus overrule Mother’s third issue. Because a single ground under 

section 161.001(b)(1) is sufficient to support termination if there is also sufficient 

evidence that termination is in the child’s best interest, we need not address 

Mother’s first and second issues challenges the sufficiency of the evidence to 

support termination under §161.001(b)(1)(N) or §161.001(b)(1)(E). A.V., 113 

S.W.3d at 362.

B. Sufficiency of the Evidence that Termination was in T.R.H.’s Best 

Interest 

As a matter of public policy, “the best interest of a child is usually served by 

maintaining the parent-child relationship.” J.F.C., 96 S.W.3d at 294. Despite this 

important relationship, the Texas Supreme Court has held that “protection of the 

child is paramount.” A.V., 113 S.W.3d at 361. 

Appellate courts examine the entire record to decide what is in the best 

interest of the child. See In re E.C.R., 402 S.W.3d 239, 249–50 (Tex. 2013). 
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Courts weigh: (1) the desires of the child; (2) the emotional and physical needs of 

the child now and in the future; (3) the emotional and physical danger to the child 

now and in the future; (4) the parental abilities of the individual seeking custody; 

(5) the programs available to assist the individual in promoting the child’s best 

interest; (6) the plans for the child by individual or agency seeking custody; (7) the 

stability of the home or proposed placement; (8) the parent’s acts or omissions that 

indicate that the existing parent-child relationship is not a proper one; and (9) any 

excuse for the parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 

371–72 (Tex. 1976). The Department need not prove every factor as a condition 

precedent to parental termination. In re A.C., 394 S.W.3d 633, 642 (Tex. App.—

Houston [1st Dist.] 2012, no pet.). Furthermore, lack of evidence about some 

factors does not preclude a factfinder from reasonably concluding that termination 

is in the child’s best interest. Id.

Because the Department is the petitioner here, we begin with the statutory 

mandate that “the prompt and permanent placement of the child in a safe 

environment is presumed to be in the child’s best interest,” TEX. FAM. CODE ANN.

§ 263.307(a), whether that be with the parents or other permanent caregivers. 

Mother argues that the evidence does not contain enough specific details 

about T.R.H.’s foster parent to amount to clear and convincing evidence that 

termination was in T.R.H.’s best interest. We disagree.
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Green’s testimony and the exhibits presented at trial demonstrated that, 

while Mother loved her children, she was lacking in skills to care for T.R.H. She 

had never been employed and had a history of leaving her children with various 

random caregivers, one of which murdered her older child. She did not 

demonstrate appropriate parenting in physically taking care of T.R.H. She 

admitted to smoking marihuana frequently. Most importantly, even after being 

offered numerous services to help to her gain the stability and skills to reunite with 

T.R.H. (the Department’s original goal), she made no effort to avail herself of any 

of those services or benefits. And she demonstrated an indifference to maintaining 

a strong relationship with him, as she chose to only visit him once every other 

month, despite being permitted more frequent visits. She did not show up the trial 

to determine whether her parental rights would be terminated.

In contrast, Green testified that T.R.H. has been in a foster home for a year 

that she characterized as a “safe, stable environment.” She opined that he is doing 

much better than he did when he was with Mother. His foster parent wishes to 

adopt T.R.H. and continue to provide him a permanent and stable home. Although 

Mother argues that the Department should have offered more specific evidence 

about the foster parent’s job, home, and living situation, we disagree that the lack 

of those details rendered it inappropriate for the trial court to make a determination 

that termination was in T.R.H.’s best interest. Contrasting the Department’s 
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positive assessment of the suitability and stability of T.R.H.’s current placement 

with Mother’s lack of planning, action, or history of appropriate parenting, the trial 

court had clear and convincing evidence to support its determination that 

termination of Mother’s parental rights was in T.R.H.’s best interest. 

CONCLUSION

We affirm the trial court’s judgment. 

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.