# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- CV IN THE INTEREST OF R.P. and R.K. , C hild ren From the 225 th Judicial District Court, Bexar County, Texas Trial Court No. 2011

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- 01921 Honorable Richard Garcia, Judge Presiding Op inion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice Delivered and Filed: October 23, 2013 AFFIRMED Appellant Ashley K. , mother of R.P. and R.K ., minor children, appeals the trial court’ s order terminating her parental rights to R.P. and R.K. On appeal, Ashley challenges the sufficiency of the evidence to support the termination of her rights and the appointment of the Texas Department of Family and Protective Ser vices as R.P. and R.K. ’s sole managing conservator. Because the evidence was sufficient to support the trial court’s finding of a predicate ground for terminating Ashley ’s parental rights , and that the termination was in R.P. ’s and R.K. ’s best interest s , we affirm the trial court’s order
. B ACKGROUND R.P. was born on October 21, 2007 , and R.K. was born December 28, 2009
. Ashley was arrested in June of 2011 and subsequently served approximately one year in a state jail facility.04

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- CV On August 1, 2011, the Texa s Department of Family and Protective Services filed its Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent

- Child Relationship regarding R.P. and R.K
. The petition sought termination of Ashley’s parental rights, as well as the right s of R.P. ’s and R.K
. ’s fathers. Family Service Plans were created for the parents and a mediated settlement agreement was reached. After Ashley failed to comply with the mediated settlement agreement, the Depa rtment set the matter for hearing and a bench trial was held over three days: February 28, 2013, April 12, 2013, and May 6, 2013. At the close of testimony and argument, the trial court took the matter under advisement. The trial court subsequently termi nated Ashley’s parental rights based on findings that Ashley (1) constructively abandoned R.P. and R.K. , (2) failed to comply with the provisions of a court order that specifically established the actions necessary for Ashely to obtain the return of the ch ildren, and (3) used a controlled substance and failed to complete a court
ordered treatment program . See T EX . F AM . C ODE A NN . § 161.001(1) (N), (O ), ( P) (West Supp. 2013 ). The trial court also found termination would be in R.P. ’s and R.K. ’ s best interest s . See id. § 161.001(2). After her parental rights were terminat ed, Ashley perfected this appeal. S TANDARD OF R EVIEW Parental rights may be terminated only upon clear and convincing evidence the parent has committed an act prohibited by section 161.001( 1) of the Texas Family Code, and termination is in the best interest of the child. See T EX . F AM . C ODE A NN . § 161.001(1), (2); In re J.O.A. , 283 S.W.3d 336, 344 (Tex. 2009); In re A.V. , 113 S.W.3d 355, 358 (Tex. 2003). “ Cl ear and convincing evidence is ‘ 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 J.O.A. , 283 S.W.3d at 344 (quoting T EX . F AM . C ODE A NN . § 101.007 (West 2008))
.

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- CV In evaluating the ev idence for legal sufficiency in parental termination cases, we examine

“‘ 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. ’ ” Id. (quoting In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002))
. We must also “ disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. ” In re J.F.C. , 96 S.W.3d at 266. W hen the evidence is challenged for factual sufficiency , we also review the disputed or conflicting evidence. In re J.O.A. , 283 S.W.3d at 34 5 ; In re J.F.C. , 96 S.W.3d at 266. W e afford due deference to the fact

- finder’ s findings and will not supplant the reasonable fact

- finder’s judgment with our own. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006) (per curi a m)
. “ ‘ 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 J.O.A. , 283 S.W.3d at 345 (quoting In re J.F.C. , 96 S.W.3d at 266). C ONSTRUCTIVE A BANDONMENT We first turn to the trial court’s finding that Ashley constructively abandoned R.P. and R.K. Section 161.001(1)(N) requires the State to prove that Ashley constructively abandoned the child who has been in the permanent or temporary managing conservators hip of the Department of Family and Protective Services or an authorized agency for not less than six months, and: (i) the department or authorized agency has made reasonable efforts to return the child to the parent; (ii) the parent has not regularly v isited or maintained significant contact with the child; and (iii) the parent has demonstrated an inability to provide th e child with a safe environment
. See T EX . F AM . C ODE A NN . § 161.001(1)(N)
.

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- CV The evidence shows that Ashley returned to San Antonio in September 2012 after being incarcerated for approximately a year in Dayton County, Texas for a drug offense. During her incarceration, R.P. and R.K. were placed with a family friend, Vicki. Shortly after her releas e, on November 16, 2012, Ashley entered into a mediated settlement agreement with the Department. Under the agreement, Ashley could have supervised visitation with R.P. and R.K. as long as she
was clean and sober and attended counseling. Although vis itat ion was provided for in the mediated settlement, Ashley saw her children only twice in eight months following her incarceration. There is no dispute that Ashley was only drug tested on two occasions and did not attend counseling after her release. Through out the hearing, Ashley blame d her caseworker for her own failure to comply with the mediated settlement agreement . Ashley contends that she remained free of drugs, but her continuous calls to her caseworker failed to result in additional drug testing and her caseworker refused to provide the necessary referral for the required drug assessment
. Ashley likewise blamed her failure to attend counseling on her caseworker
. Because her caseworker refused to allow her to use a counselor of her choice , and failed to send her a letter with the name of her assigned counselor , Ashely argued she could not comply with the mediated settlement agreement . R egardless of her drug tests, however, Ashley argues Vicki refused to answer her calls and Vicki returne d Ashley’s text messages with allegations that R.P. and R.K. did not want to s ee Ashley
. Ashley testified that on December 28, 2012, she finally called her caseworker and was allowed to speak to R.P. on a three

- way telephone call. That was the last time Ashley spoke to her children , either in person or via telephone
. The caseworker confirmed A shley was drug

- tested only twice, and both tests were negative. The caseworker, however, explained the ongoing difficulties in making contact with her. While the c ase was pending, Ashle y moved at least five times, often did not have a working

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- CV phone number , and held several different jobs
. Moreover, at most of her court settings Ashley appeared only telephonically because she was either at work or did not have a rid e to the courthouse. The one time Ashley appear ed for a court setting she was drug tested
. The State’ s preparation and administration of a service plan for the parent constitutes evidence that the State made reasonable efforts to return the child to the p arent. See, e.g. , In re K.M.B. , 91 S.W.3d 18, 25 (Tex. App.

— Fort Worth 2002, no pet .)
. Looking at all of the evidence in the light mo st favorable to the trial court’ s findings, giving due consideration to evidence that the fact finder could reasonably have found to be clear and convincing , we conclude that a reasonable trier of fact could have formed a firm belief or conviction that Ashley constructively abandoned R.P. and R.K. (1) by failing to regularly visit or maintain significant contact with the
c hildren , (2) by demonstrating an inability to provide them with a safe environment, and (3) by failing to complete her service plan. See T EX . F AM . C ODE A NN . § 161.001(1)(N); In re H.R.M. , 209 S.W.3d at 108
. B EST I NTEREST OF THE C HILD Ashley also challenges the court’s finding that terminating her parental rights is in R.P. ’s and R.K. ’s best interest s ; she contends that the evidence “does not support” the finding. We consider several factors “ when determining whether termination of parental right s is in the best interest of the child.” In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006). These include the statutory factors in sec tion 263.307 of the Family Code , id. (citing T EX . F AM . C ODE A NN . § 263.307 (West 2008 )), as well as the common law factors des cribed by the s upreme c ourt in Holley v. Adams , 544 S.W.2d 367, 372 (Tex. 1976))
. These factors include the following : (A ) the desires of the child; (B ) the emotional and physical needs of the child now and in the future; (C ) the emotional and physical danger to the child now and in the future; (D ) the parental abilities of the individuals seeking custody;

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- CV (E ) the programs available to assist these individuals to promote the best interest of the child; (F ) the plans for the child by these individuals or by the agency seeking custody; (G ) the stability of the home or proposed placement; (H ) the acts or omissions of the parent which may indicate that the existing parent

child relationship is not a proper one; and (I ) any excuse for the acts or omissi ons of the parent. Holley , 544 S.W.2d at 372 (footnotes omitted)
. These factors are not exhaustive; they need not all be proved as a condition precedent to termination and “[t]he absence of evidence about some of [the factors] would not preclude a factfi nder from reasonably forming a strong conviction or belief that termination is in the child’s best interest.” In re C.H. , 89 S.W.3d 17, 27 (Tex. 2002). Furthermore, although a parent’s imprisonment is not automatic grounds for termination , it is a fact or that courts may consider in determining the child’s best interest. See In re C.L.C. , 119 S.W.3d 382, 399 (Tex. App.

— Tyler 2003 , no pet. ) ; In re C.T.E. , 95 S.W.3d 462, 466 (Tex. App.

— Houston [1st Dist.] 2002, pet. denied). At the time of Ashley’s incarceration, R.P. was three

- years old and R.K. was only one
. Ashley was incarcerated for a drug

- related offense and much of the mediated settlement agreement focused on concerns for the children’s safety. Although Ashley completed several drug treatment and self

- help programs while incarcerated in the state jail facility, she failed to enroll in any form of counseling after she was released. Ashley lived in several different places across the state and managed only two visits with R.P. and R.K
. during the eight months following her incarceration. Ashley blamed her caseworker for all of her failures to comply with the mediated settlement agreement . The record shows n either R.P. n or R.K. know their mother or have any type of relationship with h er . Ashley never accepted any personal responsibility for her actions or offered any emotional or financial support for R.P. and R.K. Finally, during the hearing, Vicki testified that she wished to adopt R.P. and R.K.

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- CV Having reviewed the entire record, we conclude the evidence was sufficient for the trial court to have form ed a firm belief or conviction that terminating Ashley ’s parental rights was in R.P. ’s and R.K. ’s best interest s . See T EX . F AM . C ODE A NN . § 161.001(2) ; In re C.T.E. , 95 S.W.3d at 466

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. C ONCLUSION Because the evidence was legally and factually sufficient to support the trial court’s finding of a predicate ground for termination under Texas Family Code section 161.001(1) and that termination is in the best interest of each child under section 161.001(2), we affirm the trial court’s order terminating Ashley ’s parental rights to R.P. and R.K.

Patricia O. Alvarez , Justice

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