IN THE

TENTH COURT OF APPEALS

No. 10-21-00179-CV

IN THE INTEREST OF M.O., A CHILD

From the 52nd District Court

Coryell County, Texas

Trial Court No. DC-20-51077

MEMORANDUM OPINION

In five issues, the father (Father) of M.O. appeals the trial court’s termination of 

his parental rights. We will affirm.

Factual Background

After a welfare check at M.O.’s home on May 9, 2020, law enforcement contacted 

the Department of Family and Protective Services (the Department). Law enforcement 

and a Department investigator found M.O. and his three siblings living in egregious 

circumstances, and there were signs that M.O. had been physically abused. The 

children were living with their mother (Mother) and the father of the youngest child

(Stepfather 2). The father of the two middle children (Stepfather 1) was incarcerated. 

Father also was incarcerated when the children were removed. Father fled the 
In re M.O. Page 2

State of Texas with an outstanding warrant for a conviction for domestic violence 

against Mother while M.O. was an infant. Father was subsequently incarcerated in 

Oregon from March 22, 2019 until April 9, 2021. 

At the conclusion of the final termination hearing, the trial court found that 

Father had violated the Family Code by failing to support M.O., a violation of 

subsection (F), and by failing to complete court ordered services, a violation of

subsection (O). TEX. FAM. CODE ANN. § 161.001(b)(1)(F), (O). The trial court further 

found that termination was in M.O.’s best interest.

Father is the sole appellant in this case. Mother, Stepfather 1, and Stepfather 2

voluntarily relinquished their parental rights and have not appealed. Father does not 

seek possessory or managing conservatorship of M.O., but the opportunity to attempt 

to initiate a relationship with M.O. and to avoid termination of his parental rights.

Issue One

In his first issue, Father argues that he was essentially denied the right to counsel

because he was not notified of the identity of his appointed attorney in a timely manner.

AUTHORITY

Section 107.013 mandates that counsel be appointed to an indigent parent of a 

child who responds in opposition to termination of his parental rights by the 

Department. See TEX. FAM. CODE ANN. § 107.013. The statute does not provide a time 

frame within which counsel should be appointed. Id.; see also In re M.J.M.L., 31 S.W.3d 

347, 354 (Tex. App.—San Antonio 2000, pet. denied).

DISCUSSION
In re M.O. Page 3

The record reflects that an attorney was appointed to represent Father, despite 

issues with notification of the appointment and communication with the attorney. 

Because Father was provided a court-appointed attorney, and the statute does not 

provide a time frame within which counsel should be appointed, Father’s first issue is

overruled. See TEX. FAM. CODE ANN. § 107.013; M.J.M.L., 31 S.W.3d at 354.

Issue Two

In his second issue, Father asserts that the trial court erred when it denied his 

request to extend the final termination hearing and dismissal date.

AUTHORITY

A trial court's ruling on a motion for extension is reviewed for an abuse of 

discretion. In re K.-A.B.M., 551 S.W.3d 275, 283 (Tex. App.—El Paso 2018, no pet.). A 

trial court abuses its discretion when it acts “without reference to any guiding rules or 

principles.” In re M-I L.L.C., 505 S.W.3d 569, 574 (Tex. 2016) (quoting Downer v. 

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 

106 S.Ct. 2279, 90 L.Ed.2d 721 (1986)); see also In re J.S.S., 594 S.W.3d 493, 500 (Tex. 

App.—Waco 2019, pet. denied). The trial court's judgment will be reversed “when it 

acts arbitrarily, unreasonably, or without reference to legal principles.” Berkel & Co. 

Contractors, Inc. v. Lee, 612 S.W.3d 280, 287 (Tex. 2020). 

The trial court may maintain a suit on the court's docket after the one-year period

mandated by the Family Code if the court makes a finding that “extraordinary

circumstances necessitate the child remaining in the temporary managing 

conservatorship of the department and that continuing the appointment of the 
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department as temporary managing conservator is in the best interest of the child.” 

TEX. FAM. CODE ANN. § 263.401(b). A circumstance such as incarceration is not

necessarily an “extraordinary circumstance” that merits an extension. See In re M.S., 602 

S.W.3d 676, 680 (Tex. App.—Texarkana 2020, no pet.) (parent's incarceration generally 

viewed as parent's fault and not extraordinary circumstance).

DISCUSSION

Father’s attorney did not specifically identify any “extraordinary circumstances”

to justify an extension of the deadlines beyond Father’s incarceration as required by the 

Family Code. See TEX. FAM. CODE ANN. § 263.401(b). As a result, the trial court did not 

abuse its discretion in denying the oral request for an extension. Father’s second issue 

is, therefore, overruled.

Issue Three

Father asserts in his third issue that the evidence is factually insufficient to 

support a finding that he failed to support M.O. during the period required by 

subsection (F). The Department notes that it is not challenging Father’s third issue. 

AUTHORITY

To support termination under subsection (F), the Department must prove by 

clear and convincing evidence that a parent “failed to support the child in accordance 

with the parent’s ability during a period of one year ending within six months of the 

date of the filing of the petition.” TEX. FAM. CODE ANN. § 161.001(b)(1)(F). 

DISCUSSION
In re M.O. Page 5

There is nothing in the record to reflect that Father had the ability to support 

M.O. while he was incarcerated. Father’s third issue is sustained.

Issue Four

Father’s fourth issue challenges the legal and factually sufficiency of the evidence

supporting termination of his parental rights under subsection (O).

AUTHORITY

In a proceeding to terminate the parent-child relationship brought under section

161.001, the Department must establish by clear and convincing evidence two elements:

(1) that one or more acts or omissions enumerated under section 161.001(b)(1), termed a 

predicate violation, were committed; and (2) that termination is in the best interest of 

the child. TEX. FAM. CODE ANN. § 161.001(b)(1), (2); In re S.L., 421 S.W.3d 34, 37 (Tex. 

App.—Waco 2013, no pet.). “Clear and convincing evidence” is defined as “that 

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 established.” In re K.M.L., 

443 S.W.3d 101, 112 (Tex. 2014) (quoting TEX. FAM. CODE ANN. § 101.007).

The standards of review for legal and factual sufficiency in cases involving the 

termination of parental rights are well established and will not be repeated here. See In 

re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25 

(Tex. 2002) (factual sufficiency); see also In re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009). 

We give due deference to the factfinder's findings and must not substitute our 

judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The 
In re M.O. Page 6

factfinder is the sole judge “of the credibility of the witnesses and the weight to give 

their testimony.” Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston [1st Dist.] 

2010, pet. denied).

When no findings of fact or conclusions of law are filed following a bench trial, 

the trial court's judgment implies all findings necessary to support it. See Missouri 

Pacific R.R. Co. v. Limmer, 299 S.W.3d 78, 84 n.29 (Tex. 2009) (citing Pharo v. Chambers 

Cnty., 922 S.W.2d 945, 948 (Tex. 1996)); see also In re D.Z., 583 S.W.3d 284, 295 (Tex. 

App.—Houston [14th Dist.] 2019, no pet.). “[W]here a reporter's record is filed, as in 

this case, these implied findings are not conclusive, and an appellant may challenge

them by raising both legal and factual sufficiency of the evidence issues.” In re G.B. II, 

357 S.W.3d 382, 385 n.1 (Tex. App.—Waco 2011, no pet.). Although the trial court did 

not file separate findings of fact and conclusions of law in this case, the trial court did 

make findings and conclusions in the final order of termination. 

Subsection 161.001(b)(1)(O) provides that a parent’s rights may be terminated if 

the Department proves by clear and convincing evidence that: (1) the child was 

removed under chapter 262 of the Texas Family Code for abuse or neglect; (2) the child 

has been in the permanent or temporary conservatorship of the Department for at least 

nine months; and (3) the parent failed to comply with a court order specifically 

establishing the actions necessary for the parent to obtain the return of the child. TEX.

FAM. CODE ANN. § 161.001(b)(1)(O); see also In re V.A.G., No. 04-19-00449-CV, 2019 WL 

5927451, at *2 (Tex. App.—San Antonio, no pet.) (mem. op.). Father challenges only the 

third element—that he failed to comply with a court order.
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“[W]hether a parent has done enough under the family-services plan to defeat 

termination under subpart (O) is ordinarily a fact question.” In re S.M.R., 434 S.W.3d 

576, 584 (Tex. 2014). 

“Texas courts generally take a strict approach to subsection (O)'s 

application.” In re S.J.R.-Z., 537 S.W.3d 677, 690 (Tex. App.—San Antonio 

2017, pet. denied) (quoting In re C.A.W., No. 01-16-00719-CV, 2017 WL 

929540, at *4 (Tex. App.—Houston [1st Dist.] Mar. 9, 2017, no pet.) (mem. 

op.)). “Courts do not measure the ‘quantity of failure’ or ‘degree of 

compliance’ ” with a court order. Id. (quoting In re D.N., 405 S.W.3d 863, 

877 (Tex. App.—Amarillo 2013, no pet.)). “A parent's failure to complete 

one requirement of her family service plan supports termination under 

subsection (O).” In re D.D.R., No. 04-18-00585-CV, 2019 WL 360657, at *2 

(Tex. App.—San Antonio Jan. 30, 2019, pet. denied) (mem. op.) (internal 

quotation marks and brackets omitted) (quoting In re J.M.T., 519 S.W.3d 

258, 267 (Tex. App.—Houston [1st Dist.] 2017, pet. denied)).

V.A.G., 2019 WL 5927451, at *2. 

The burden of complying with a court order is on the parent, even if the parent is 

incarcerated. Thompson v. Tex. Dep’t of Family & Protective Srvs., 176 S.W.3d 121, 127 

(Tex. App.—Houston [1st Dist.] 2004, pet. denied). In other words, incarceration is not 

a legal excuse or defense to a parent’s failure to comply with a service-plan order. See 

K.C. v. Tex. Dep’t of Family & Protective Srvs., No. 03-17-00184-CV, 2017 WL 3585255, at *2 

(Tex. App.—Austin Aug. 17, 2017, no pet.) (mem. op.).

Generally, the only defense to a failure to complete a service plan under 

subsection (O) is found in section 161.001(d), which provides:

(d) A court may not order termination under Subsection (b)(1)(O) based 

on the failure by the parent to comply with a specific provision of a court 

order if a parent proves by a preponderance of evidence that:

(1) the parent was unable to comply with specific provisions of the 

court order; and
In re M.O. Page 8

(2) the parent made a good faith effort to comply with the order 

and the failure to comply with the order is not attributable to any fault of 

the parent.

TEX. FAM. CODE ANN. § 161.001(d). The trial court specifically found in its final order of

termination that Father had not proved either of the foregoing.

DISCUSSION

Father does not dispute that he did not complete the requirements of the courtordered family service plan, but argues that he was not provided a reasonable 

opportunity to comply with the court-ordered family service plan, citing In re J.W., 615 

S.W.3d 454, 464 (Tex. App.—Texarkana 2020, no pet.) (quoting In re A.Q.W., 395 S.W.3d 

285, 289 (Tex. App.—San Antonio 2013, no pet.)). However, the “reasonable 

opportunity” is applicable to a violation of subsection (N). There is no such 

requirement in subsection (O). 

Additionally, the record does not reflect that Father was unable to comply with 

specific provisions of a court order or that the failure to comply with the order is not 

attributable to any fault on his part. Father testified that he was unable to provide 

documentation to the Department regarding the services he had completed because he 

“had too much on his plate.” Further, Father testified that he had an active warrant in 

Texas after he absconded with four months left on his probation and that he had not 

taken measures to address the warrant. The evidence before the trial court was legally 

and factually sufficient to support the finding that Father violated subsection (O). 

Father’s fourth issue is overruled.
In re M.O. Page 9

Issue Five

In his fifth issue, Father contends that the evidence is legally and factually 

insufficient to establish that termination of his parental rights is in M.O.’s best interest.

AUTHORITY

In determining the best interest of a child, a number of factors have been 

consistently considered which were set out in the Texas Supreme Court’s Holley

opinion. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is not exhaustive, 

but simply indicates factors that have been or could be pertinent. Id. at 372. There is no

requirement that all of the factors be proved as a condition precedent to termination, 

and the absence of evidence regarding some factors does not preclude a factfinder from 

determining that termination is in a child’s best interest. C.H., 89 S.W.3d at 27. 

Evidence establishing one of the predicate grounds under section 161.001(b)(1) also may 

be relevant to determining the best interest of the child. Id. at 27-28.

DISCUSSION

M.O., who was six years old at the time of trial, did not recognize Father as his

father as M.O. had no contact with Father since M.O. was an infant. M.O. believed his 

Father was in jail and was a bad man, although that belief may have been fostered by 

Mother and M.O.’s maternal grandmother (Grandmother). After the Department 

removed M.O. and his siblings, M.O. and his brothers were placed with Grandmother, 

with whom M.O. had a bond. The caseworker testified that M.O. characterizes 

Grandmother’s home as safe and that M.O. is very attached to his siblings. 

Grandmother testified that she wanted to adopt all three brothers. 
In re M.O. Page 10

Father and Mother testified that Father had a history of illegal drug use. Father 

testified that a reason he left Texas, besides the outstanding warrant, was to make a 

fresh start. However, Father’s propensity to criminal behavior accompanied him to 

Oregon, resulting in his incarceration there for another offense that the caseworker 

testified had elements of domestic violence. Father also testified that he had a criminal 

history including a DWI conviction and arrests for burglary of a habitation and assault 

causing bodily injury/domestic violence in addition to the assault conviction against 

Mother. 

M.O.’s counselor testified that introducing Father into M.O.’s life would be 

harmful emotionally since Father was basically a stranger to M.O. M.O. was also 

dealing with the changes and adjustments in his life from being removed from Mother’s 

custody and placed with Grandmother. M.O.’s counselor and the Department 

caseworker believed that Grandmother provided a safe and suitable home for M.O. and 

had no concerns with M.O.’s placement in Grandmother’s custody. Grandmother 

desired to adopt all three brothers, and M.O.’s counselor believed it was “very 

important” that M.O. be included in the adoption. The counselor believed it would be 

difficult for M.O. to understand why he was not chosen for adoption even though he 

was residing in the same home. The counselor noted that it would result in M.O. 

feeling “unloved, unequal, [and] unworthy,” that could turn into a lot of issues as he 

grew older.

The trial court could have found that Father’s history of domestic violence and 

illegal drug use supported a finding that termination was in M.O.’s best interest. See In 
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re M.R.H., No. 10-21-00231-CV, 2021 WL 5638847, at *4 (Tex. App.—Waco Dec. 1, 2021, 

no pet.) (citing Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past 

is prologue.”)) (history of domestic violence and illegal drug use). Such a history can 

contribute to an unstable lifestyle and is relevant in determining present and future 

danger to a child’s physical and emotional well-being. In re N.J.H., 575 S.W.3d 822, 832 

(Tex. App.—Houston [1st Dist.] 2018, pet. denied).

Considering all of the Holley factors, the evidence was factually and legally 

sufficient for the trial court to conclude that termination was in M.O.’s best interest. We 

overrule Father’s fifth issue.

Conclusion

 We sustain Father’s third issue, overrule Father’s first, second, fourth, and fifth

issues, and affirm the judgment of the trial court.

MATT JOHNSON

Justice

Before Chief Justice Gray,

Justice Johnson, and

Justice Smith,

Affirmed

Opinion delivered and filed April 6, 2022

[CV06]