### 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 aff irm

. Factual Background After a welfare check at M.O. ’ s home on May 9, 2020, law en fo rcement cont acted the Department of Family and Protective Serv ices (the D e partment)

. Law enforcement

an d a Department investigator found M.O. and his three siblings living in egregious
circumstances , and there were signs that M.O. had bee n physically ab us ed

. The chi ld ren were living with their mother (Mot her) and the father of the youngest child ( Step father 2)

. The father of the two middle children ( Stepfather 1) was incarcerated. Father also was incarcerated whe n the children were r emoved. Father f le d theI n 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 subseq uently incarcerated in Oregon from March 22, 2019 until April 9, 2021. At the conclusion o f th e final termination hear ing, the trial court found that Father ha d violat e d the Family Code by fail ing to support M.O. , a violation of subsection (F ) , and by f ailing to complete court ordered services , a violation of subsection (O)

. T EX
. F AM
. C ODE A NN
. § 16 1. 001(b)(1)(F), (O). The tria l court f urther found that terminat ion wa s in M.O. ’ s best interest.
Fat her is the sole appellant in this case

. Mother , Stepfather 1 , and Stepfather 2 voluntarily relin quished their parental rights and h a v e not a ppeal ed

. F at her does not seek poss essor y o r managing conservatorship of M.O., but the opportunit y to attempt to initiate a relationship with M.O. and to avoid termination of his parental rights.
Issue One In his first issue, Father arg ues that he w as essenti ally denied the ri ght to couns el because he was not notified of the ide ntity of his appointed attorn ey in a timely manner.
A UTHORITY Section 107.013 man dates that counsel be app ointed to an indigent parent of a chil d who responds in oppo sition t o termination of hi s parental rights by t he Department. See T EX
. F AM
. C ODE A NN
. § 107.013

. The st atute does not prov ide a tim e frame wi thin which counsel shou ld be app o inted. Id

. ; see also In re M. J.M.L. , 31 S.W.3d 347, 354 (Tex. App.

— San Antonio 2000, pet. deni ed).
D ISCUSSIONI n re M.O. Page 3 Th e recor d re flects tha t an att orney was app ointed 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 statut e does not provide a time frame withi n which counsel should be appointed, Father ’ s fi rst issue is overrule d. See T EX
. F AM
. C ODE A NN
. § 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.
A UTHORITY A trial court's ruling on a motion for exte nsion is reviewed f or 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 c ourt abu ses i ts dis cretion when it acts “without reference to any gu iding rules or principles.” In re M

- I L.L .C. , 505 S.W.3d 5 69, 574 (Tex. 2016) (q uoting Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

- 42 (Tex. 198 5), cert. denied , 476 U.S. 115 9,
106 S. Ct. 2279, 90 L.Ed .2d 72 1 (1986)); see also In re J.S.S. , 594 S.W .3d 493, 500 (Tex. App.

— Waco 2019, pe t. denied). The trial court's judgment will be reversed “when it acts arbitrarily, unreasonably, or without referenc e to legal principles.” Berk el & Co.
Co nt ractor s, Inc. v. Le e , 612 S.W.3d 280, 287 (Tex. 2020).
Th e trial court may maintain a suit on the court's docket after the one

- year per iod mandated by the Family Code if the court mak es a finding that “extraordinary
circ umstances necessitate the child r emaining in t he tem porary managing conservatorship of the de partment and that continuing the appointment of theI n re M.O. Page 4 depa rtment as temporary ma nag ing conservator is in th e best interest of th e child.”
T EX
. F AM
. C ODE A NN
. § 263. 401(b). A circumstanc e such as i nc arcera tion is not necessarily an “extraordinary circumstance ” that merits an extension. See In re M.S. , 602
S.W.3 d 676, 680 (Tex. App.

— Texark ana 2020, no pet.) (p arent's incarceration generally viewed as parent's fault a nd not extraordinary c ircumstance )

. D ISCUSSIO N Fath er ’ s attor ney did not specifically identify any “ extraordinary circumsta nces ” to justify a n extension of the deadlines beyond Father ’ s incarceration as req uired by the Family Code

. See T EX
. F AM
. C ODE A NN
. § 263.401(b ). As a result, t he trial court did no t abuse its discretion in denyin g the oral request for an extension. Fa ther ’ s second issue is, therefore, overruled.
I ssue Three Father asserts in his third issue that the evidence is factually insufficient to support a finding that he failed to s upport M.O. during the period required by subsection (F). The Departm ent notes th at it is not challenging Father ’ s third issue

. A UTHORITY To support t ermin ation under subsection (F), the Department must prove by
cle ar and convincing evidenc e that a parent “ fa iled to s upport the c hild in accordan ce with the parent ’ s ability during a p eriod of one year ending within six months of t he date of the filing of the petition. ” T EX
. F AM
. C ODE A NN
. § 161.001(b)(1)(F).
D ISCUSSIONI n re M.O. Page 5 The re is nothing in the record to r efl ect 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 sufficienc y of the evidence supporting termination of his parental rights un der subsection (O).
A UTHORITY In a p roceeding to terminate the pare nt

- child relationship brought under section 161.001, the Department must establish by clear and convincing eviden ce two element s: (1) that one or more acts or omissions enumerated under s ection 16 1.001(b)(1), termed a predicat e violat io n , were co mmitted; and (2) that termination is in the best interest of the child. T EX
. F AM
. C ODE A NN
. § 161.001(b)(1), (2); In re S.L. , 42 1 S.W.3d 34, 37 (Tex. App.

— Waco 2013, n o pet.). “Clear and convinci ng evi de n ce” is defined as “that

measur e or deg ree o f 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.” I n re K.M.L. , 443 S.W.3 d 1 01, 112 (Tex. 2014) (quoting T EX
. F A M
. C ODE A NN . § 101.007). The standards of r ev ie w 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

- 6 8 (Tex. 2002 ) ( lega l suffici ency) ; In re C.H. , 89 S.W.3d 17, 25 (Tex. 2 00 2) (factual sufficiency) ; see also In re J.O.A. , 283 S.W.3d 336, 344

- 45 (Tex. 2009).
W e give due deference to the factfinder's findings and must not substitute our judgment for that o f the factfinde r. In re H.R .M. , 209 S.W.3d 105, 108 (Tex. 20 06). TheI n re M.O. Page 6 fa ctfinder 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, pe t. denied). When n o find ing s of fact or c onclusions of law are filed fol lowing a bench tria l,
t h e trial court's judgment implies all findings neces sary to support it. See Missouri Pacific R. R

. Co. v. Limmer , 299 S.W.3d 78, 84 n.29 (Tex. 2009) (citing Pharo v. C hambers
C nty

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

— Houston [14th Dist.] 2019, no pet.). “ [W] here a reporte r's record is filed, a s in this case, these implied f indings are not conclusive, and an appellant may cha llenge
t hem b y raising both legal and factual sufficiency of th e evidence issue s .” In re G.B. II , 3 57 S.W.3d 38 2, 385 n.1 (Tex. Ap p . — Waco 2011, no pet .). Although the trial court did not file separate finding s of fact and conclusions of law in this case , the t rial court did make findings and c onclusions in the final or der of termination. Sub section 161. 001(b)(1)(O) provides that a parent ’ s r ights m ay be terminate d if the Depar t m e n t prov es by clea r and convi ncing evidence that : (1) the chil d was removed und e r chapter 262 of the Texas Family Code for ab use or neglec t; (2) t he chil d has been in t he permane nt or temporary conservatorship of the Department for at least nine month s; and (3) the parent failed to comply with a court order specifically establishing t he actions ne cessary for the parent to obtain the return o f the ch ild. T EX
. F AM
. C OD E A NN
. § 161. 001(b)(1)(O) ; see also In re V.A.G. , No. 04

- 19

- 00449

- CV, 2019 WL
59274 51, at *2 (Tex. App.

— San Antonio, no p et.) (mem

. op.)

. Father challenges only the thir d element

— that he failed to compl y with a court or der.I n re M.O. Page 7 “ [ W ]hether a parent has done e nough under t he family

- services pla n 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 cour ts generally take a strict approach to subsection (O)'s ap plication.” 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 , 20 1 7, no pet.) (mem. op.)). “Courts do not measure the ‘qua ntity of failure’ or ‘degree of compl i ance’ ” with a court o rder. Id . (quoting In re D.N. , 405 S.W.3d 863, 877 (Tex. App.

— Amarillo 2013, no pe t.)). “A parent's failure to complete one requi rem ent of h er family service plan supports termination u nder subs ection (O).” In re D.D.R. , No. 04

- 18

- 00585

- CV, 2019 WL 3606 57, at *2 (Tex. App.

— San Antonio Jan. 30, 2019, pet. denied) (mem. op.) (internal q uotation marks and brackets omitted) (quoting In re J.M .T. , 519 S.W. 3d 258, 267 (Tex. App.

— Houston [1st Dist.] 20 17, pet. denied)).
V. A.G. , 2019 WL 5927451, at *2. The burden of com plying with a co urt order is on the parent, even if the parent is incarcerated. Thompson v. Tex. D ep ’ t of Family & Protective S rvs. , 176 S.W.3d 121, 127 (Tex. App.

— Hous ton [1st Dist.] 2004, pet. denied)

. In other words, incarceration is not a lega l excuse or defense to a parent ’ s fai lure 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. A pp . — Austin Aug. 17, 2017, no p et.) (mem. op.). Generally, the o nly defense to a failure to comple te a se rvice plan u nder subsection (O) is fo und i n section 161 .001(d), which p rovides: (d) A court may no t order termina tion under Subsection (b)(1)(O) based on the failure by the parent to comply with a sp ecific provision of a court order if a parent proves by a prepondera nce of evidence that: (1) the paren t was u nable to comply with specif ic provisions of t he court orde r; andI n re M.O. Page 8 (2) the parent made a good faith eff ort to comply with the order and the fail ure to comply with the order is not attributable to any fault of the parent

. T EX
. F AM
. C ODE A NN
. § 161. 001(d). The trial cour t specifically foun d in its f inal order of termination that Father had not proved eithe r of the foregoing.
D ISCUSSION Father does not disp ute that he did not complete the requirements of the court

ordered fam ily service plan, but argues that he was not provided a reasonable opportun ity t o comply with the court

- ordered family serv ice plan, citing In re J.W. , 615
S.W. 3d 4 54, 464 ( Tex. App.

— Texarkana 20 20, no pet.) (q uoting In re A.Q.W. , 395 S.W.3d 285, 289 (Tex. App.

— San Antonio 2013, no pet.) )

. However, the “ reasonable opportunity ” i s applicable to a v iolation o f 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 c omply with the o rder is not attribu table to a ny fault on his part. Fathe r testified that he was unable to provide documentation to the Depa rtment regarding the service s he had co mpleted becaus e he

“ had too much on his plate

. ” Further, Father testified that he had an act ive warrant in
Texa s 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 co urt was legally and factually sufficient to support the finding that Father violated subsection (O).
Fa ther ’ s fourth issue is overruled.I n 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.
A UTHORITY In de te rmining the best in ter est of a child, a number of factors have been

c onsi stently 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, b ut simply indic ates fa ctors that have been or could be perti nent. Id . at 372. There is no requirement th at all of the factors be proved as a condition precedent to termination, and the absence of evidence regarding some factors does not preclude a factfi nder f rom deter mining that termination is i n 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.
D ISCUSSION M. O., who was six years old at the time of trial, did not recognize Father as hi s 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, al though that belief may have been fostered by Moth er and M.O. ’ s maternal grand mother (Grandmother) . After the Department removed M.O. and his siblings , M. O. and his broth ers were placed with Grandmother , with who m M.O. had a bond. The cas eworker testified that M.O. characterizes Grandmother ’ s home as sa fe and that M.O . is very attached to his siblings. Grandmother testified that she wanted to adopt all three brothers.I n re M.O. Page 10 Father and Mother test ified that Father had a history of illegal drug use. Father testified that a reason he left Texas, besides t he outstanding warrant, was to make a fresh start . However, Father ’ s propensity to criminal behavior accomp an ied him to Oregon, resulting in his incarceration there for another offense that the caseworker testified had ele ments of domestic violence. Fath er also testifi ed that he had a criminal history including a DWI conviction and ar rests for burgla ry of a ha bitation and assault causing bodily injury/domestic violence in addition to the assault conviction against Mother.
M.O. ’ s counselor testified tha t introducing F ather in to M. O. ’ s life would be harmful emotionally since Father was basically a st ranger to M.O. M.O. was also dealing with the changes and adjustments in his life f rom being removed from Mother ’ s custody and placed with Grandmother. M.O. ’ s counselor an d the Department

c aseworker believed that Grandmother provided a safe and suitable hom e 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 belie ved it was “ ver y importa nt ” that M.O. be included in the adoption. The counselor believed it would b e difficult for M.O. to unders tand why he was not chosen for adoption even though he was residing in the same home. The counselor noted that it would resu lt in M.O. feel ing “ unloved, unequal, [and] unwo rthy , ” that could turn into a lot of issues as he grew older. The trial court could have found that Father ’ s histo ry of domestic violence and illegal drug use support ed a finding that termination was in M.O. ’ s best interes t. See I nI n re M.O. Page 11 re M.R.H. , No. 10

- 21

- 00231

- CV, 2021 WL 5638847, at *4 (Tex. Ap p. — Waco Dec. 1, 2021, no pet.) (citing Ray v. Burns , 832 S.W.2d 4 31, 435 (Tex . App.

— Waco 1992, no writ) ( “ Past is prologue. ” )) (history of domestic violence and illegal drug use )

. Su ch 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.] 201 8, pet. denied ). Considering all of the Holley factors, t he evidence was factually and legally sufficient for the trial court to conclude that termination was in M.O. ’ s best inte r est. We overrule Father ’ s f ifth issue. Conclusion
We sustain Father ’ s third issue , ove rrule Father ’ s fi rst , s econd , fo urth , and fifth
issues , and affirm the judgment of the trial court.

MATT JOHNSON Justice Before Ch ief Justice G ray, Jus tice Joh nson, and Ju stice Smith, Affirmed Opinion delivered and filed April 6, 2022 [CV06 ]