Opinion filed July 11, 2024

In The

Eleventh Court of Appeals __________

No. 11-24-00014-CV

__________

IN THE INTEREST OF K.R., A CHILD

On Appeal from the 326th District Court

Taylor County, Texas

Trial Court Cause No. 10973-CX

M E M O R A N D U M O P I N I O N

This is an appeal from an order in which the trial court terminated the parental 

rights of the mother and father of K.R. See TEX. FAM. CODE ANN. § 161.001 (West 

Supp. 2023). The father filed a notice of appeal.1 On appeal, the father presents two 

issues in which he challenges the sufficiency of the evidence, offered by the Texas 

Department of Family and Protective Services (the Department), to support the trial 

1

Because only the father has appealed the trial court’s order of termination, we limit the scope of 

this opinion to only those facts related to the trial court’s findings as to the father.
2

court’s findings under subsections (E) and (O). We affirm in part, and we reverse

and remand in part.

Termination Findings and Standards

The termination of parental rights must be supported by clear and 

convincing evidence. FAM. §§ 161.001(b), 161.206(a), (a-1) (West 2022). To 

terminate one’s parental rights under Section 161.001, it must be shown by clear and 

convincing evidence that the parent has committed one of the acts listed in 

Section 161.001(b)(1)(A)–(V) and that termination is in the best interest of the 

child. Id. § 161.001(b). In this case, the trial court found that the father had 

committed two of the acts listed in Section 161.001(b)(1)—those found in 

subsections (E) and (O). The trial court also found that termination of the father’s

parental rights would be in the best interest of the child. See id. § 161.001(b)(2).

To determine if the evidence is legally sufficient in a parental termination 

case, we review all of the evidence in the light most favorable to the finding and 

determine whether a rational trier of fact could have formed a firm belief or 

conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). 

To determine if the evidence is factually sufficient, we give due deference to the 

finding and determine whether, on the entire record, a factfinder could reasonably 

form a firm belief or conviction about the truth of the allegations against the parent. 

In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We note that the factfinder is the sole 

arbiter of the credibility and demeanor of witnesses. In re A.B., 437 S.W.3d 498, 

503 (Tex. 2014) (citing In re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).

With respect to the best interest of a child, no unique set of factors need be 

proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied). 

But courts may use the non-exhaustive Holley factors to shape their analysis. 

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not 

limited to, (1) the desires of the child, (2) the emotional and physical needs of the 
3

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 individuals seeking custody, (5) the 

programs available to assist these individuals to promote the best interest of the 

child, (6) the plans for the child by these individuals or by the agency seeking 

custody, (7) the stability of the home or proposed placement, (8) the acts or 

omissions of the parent that may indicate that the existing parent–child relationship 

is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.

Additionally, evidence that proves one or more statutory grounds for termination 

may also constitute evidence illustrating that termination is in the child’s best 

interest. C.J.O., 325 S.W.3d at 266.

Procedural and Factual Background

Jessica Edwards, the Department investigator, testified that K.R. was removed 

at birth because he and the mother both tested positive for methamphetamine. The 

mother also tested positive for marihuana. K.R. was born on February 10, 2023. 

Edwards also testified that the mother indicated the father was responsible for getting 

her into methamphetamine use.

Kristian Castro, the 2INgage permanency case manager, testified that the 

father was required to submit to a drug test, but that the test was never completed. 

Castro also testified that the father did not complete all the requirements of his 

service plan.

It appears from the record that the father was arrested and convicted for 

possession of methamphetamine. The initial offense occurred on August 28, 2022,

almost six months before the birth of K.R., and the sentence was imposed on 

September 28, 2023. Castro indicated that she thought the father was in the Taylor 

County Jail because of a DWI charge, but the judgment of conviction indicates that 

he was sentenced for the possession of methamphetamine. 
4

At the conclusion of the hearing, the Department informed the trial court that 

it intended to ask for termination of the father’s parental rights based on subsections

(E) and (O). The trial court requested further explanation as to subsection (E). The 

Department indicated only that the father was the one to introduce the mother to 

methamphetamine. The trial court terminated the parental rights of the father based 

on subsections (E) and (O) and found termination to be in the best interest of the 

child.

In two issues on appeal, the father challenges the findings made under 

subsections (E) and (O). The father does not challenge the best interest 

determination made by the trial court.

Analysis

Endangering Conduct

In the father’s first issue, he challenges the findings made by the trial court 

under Section 161.001(b)(1)(E).

Under subsection (E), the relevant inquiry is whether evidence exists that the 

endangerment of the child’s well-being was the direct result of the parent’s conduct, 

including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 34 (Tex. 

App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must 

be based on more than a single act or omission; a voluntary, deliberate, and 

conscious course of conduct by the parent is required. In re D.T., 34 S.W.3d 625, 

634 (Tex. App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 

(Tex. App.—Eastland 1999, no pet.). The offending conduct need not be directed at 

the child, nor does the child actually have to suffer an injury. In re J.O.A., 283 

S.W.3d 336, 345 (Tex. 2009). With respect to the sufficiency of the evidence to 

support a finding under subsection (E), “endangering conduct is not limited to 

actions directed towards the child.” Id. (citing Tex. Dep’t of Human Servs. v. Boyd, 

727 S.W.2d 531, 533 (Tex. 1987)). The endangering conduct may include the 
5

parent’s actions before the child’s birth and may relate to the parent’s actions while 

the parent had custody of other children. Id.; In re S.T., No. 11-19-00363-CV, 2020 

WL 2610393, at *3–4 (Tex. App.—Eastland May 18, 2020, pet. denied) (mem. op.) 

(upholding finding under subsection (E) based upon parent’s conduct with other 

children).

Sufficient evidentiary support for a finding under subsection (E) would 

ordinarily be enough to uphold the termination of the parental rights of the father. 

See In re N.G., 577 S.W.3d 230, (Tex. 2019) (“To affirm a termination judgment on 

appeal, a court need uphold only one termination ground—in addition to upholding 

a challenged best interest finding—even if the trial court based the termination on 

more than one ground.”). However, we conclude that the evidence presented at trial 

by the Department is insufficient to support termination of the father’s parental rights 

under subsection (E). 

If the Department has clear and convincing evidence that a parent has 

committed one of the acts listed in Section 161.001(b) and that termination of that 

parent’s rights is in the best interest of the child, then it must diligently offer such 

evidence to the trial court and the evidence supporting both must be present in the 

record on appeal. The only evidence the Department relies on to support the 

termination of the father’s parental rights under subsection (E) was that the father 

was responsible for introducing the mother to methamphetamine use and that his

incarceration at the time of the final hearing was for possession of 

methamphetamine. In this regard, the record indicates that the father committed the 

offense of possession of methamphetamine more than five months before K.R. was 

born. Edwards, the Department investigator, testified that the following exchange 

occurred when the mother was confronted with the intake results at the hospital:

[EDWARDS]: I asked [the mother] if she was aware why [the 

drugs] would be there. She did say yes. At first, she said that she did 
6

use methamphetamine a few weeks ago, then later on, she did admit to 

using a couple of days prior to having her child. 

[THE DEPARTMENT]: When you were discussing with the 

mother her methamphetamine use, who did she say got her into the 

methamphetamine use?

[EDWARDS]: [Appellant].

The Department presented no testimony that related to when the father “got

[the mother] into the methamphetamine use.” There was no testimony from the 

mother or the father or other evidence verifying that statement, and there was no 

evidence that the father knew the mother was pregnant or that she was using 

drugs during her pregnancy. See Interest of A.G., No. 11-19-00178-CV, 2019

WL 5617640, at *2 (Tex. App.—Eastland Oct. 24, 2019, pet. denied) (mem. op.) 

(where the child was born after the appellant’s incarceration and there was no 

evidence that the father knew about the child or the mother’s drug use, the evidence 

was insufficient to uphold a finding under subsection (E)). But the record includes 

mention of the mother’s drug use as early as 2002. There was no evidence presented 

by the Department of any drug use by the father when he was in K.R.’s 

presence. Further, the only criminal conviction proven was the possession of 

methamphetamine, which occurred more than five months before K.R. was born. 

See id. With only a single conviction occurring prior to the child’s birth and no 

evidence the father knew of, or encouraged, the mother’s drug use during pregnancy, 

we conclude that the evidence is insufficient to support the trial court’s finding

under subsection (E), which requires a conscious course of conduct.

2 See FAM.

2

The Department points to multiple cases for the proposition that a parent’s conduct need not be 

directed at the child to constitute endangerment yet may still showcase a pattern of conduct which would 

be ill-disposed to child-rearing. Among those cases listed are: J.O.A., 283 S.W.3d at 345–46; C.H., 89 

S.W.3d at 28; Boyd, 727 S.W.2d at 533; In re A.M., 495 S.W.3d 573, 579 (Tex. App.—Houston [1st Dist.] 

2016, pet. denied); In re N.K., 399 S.W.3d 322, 330 (Tex. App.—Amarillo 2013, no pet.); and In re M.R., 
7

§ 161.001(b)(1)(E); D.O., 338 S.W.3d at 34; D.T., 34 S.W.3d at 634. Thus, the 

evidence presented does not satisfy the clear and convincing standard of proof

required to prove that the father engaged in conduct or knowingly placed the child 

with someone that engaged in conduct, which endangered the child’s physical or 

emotional well-being. We hold that the evidence is not legally sufficient to uphold 

the trial court’s finding under subsection (E). We sustain the father’s first issue.

Failure to Comply with Court Order

In the father’s second issue, he challenges the findings made by the trial court 

under Section 161.001(b)(1)(O). Pursuant to subsection (O), the Department has the 

burden to prove by clear and convincing evidence that Appellant failed to comply

with the requirements and provisions of a court ordered plan which specifically set 

out the necessary actions that the parent must complete in order for the child to be 

returned to the parent. See FAM. § 161.001(b)(1)(O). Subsection (O) additionally 

requires that the child must have been in the temporary or permanent managing 

conservatorship of the Department for no less than nine months, and that the child 

was removed for abuse or neglect under Chapter 262. Id. A trial court may not order 

termination under subsection (O) based on the parent’s failure to comply with a 

specific provision of a court order if the parent proves by a preponderance of the 

evidence that (1) the parent was unable to comply and (2) the parent made a good 

243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.). However, these cases are distinguishable 

from the instant case as they involved appellants who either knew their child had been removed and 

continued to participate in illicit activities, or they conducted such activities within the home. Many also 

included extensive criminal records. Moreover, while we certainly consider a parent’s imprisonment on 

the issue of endangerment, a parent’s imprisonment alone does not constitute sufficient evidence to support 

a finding under subsection (E) under the clear and convincing evidence standard. See Boyd, 727 S.W.2d at 

534; see also Interest of J.F.-G., 627 S.W.3d 304, 312–13 (Tex. 2021) (citing Boyd, 727 S.W.2d at 533–

34). Here, the evidence of the father’s criminal conduct prior to the birth of K.R.—and with no evidence 

that he knew of the mother’s pregnancy—is distinguishable from those cases relied upon by the Department

and is insufficient to support a finding under subsection (E) in this case.
8

faith effort to comply and failure to comply is not attributable to the fault of the 

parent. See id. at § 161.001(d).

The Department presented the following three witnesses at the final hearing: 

(1) Edwards, the Department investigator, who testified that she had no contact with 

the father and testified that the mother was unable to provide to her any contact 

information for the father; (2) M.M., K.R.’s foster mother, who provided no relevant 

testimony with regard to K.R.’s father; and (3) Castro, the 2INgage permanency case 

manager, who provided all of the testimony related to the father’s compliance or 

noncompliance with the service plan that was incorporated into the trial court’s 

status hearing order.

At the time of the final hearing, the father was in jail but anticipated being

released in sixty days. At the outset of the final hearing, his attorney asked that the 

hearing be continued so that the father might have time to complete required 

services. The father was present for the final hearing, but he did not testify. The 

mother did not appear at the hearing, nor did she testify.

Castro testified that she had had little contact with the father. Castro testified 

that the only phone number she had for the father was disconnected and that she 

never obtained an updated number. The testimony at the final hearing largely 

focused upon the mother; there is no evidence as to when or if the father ever lived 

with the mother, particularly during her pregnancy with K.R and, as we have said, 

there is insufficient evidence of conscious conduct by the father for a finding under 

subsection (E). Castro testified that she first met with the father in March 2023 and 

shortly thereafter the father was incarcerated. The father’s status hearing was reset

from April 6 to April 28, but he was incarcerated before this status hearing could 

occur. 

The only request that Castro made to the father was for the father to submit to

a drug screen. Castro sent this request in a message on Facebook messenger because
9

his phone was not working, but there was no response. Castro spoke to the father 

after the status hearing in November 2023 while he was confined in the Taylor 

County Jail. At that time Castro did not request that the father submit to a drug 

screen. Castro admitted that the father sent her letters, but he received nothing in 

response from her. Castro additionally could not recall if she gave the father her 

card with her contact information when she talked to him in March 2023. Since 

November 2023, Castro had no more contact with the father—no phone call was set 

up, no visits were made to him, and no letters were sent to him. When he was 

transferred to the Taylor County Jail based on a bench warrant, Castro did not visit 

him, and she had no communication with the father in the thirty days prior to the 

termination hearing. 

Importantly, there is no clear evidence that the father received a final copy of 

the service plan. In this regard, Castro testified that she met with the father in March

2023,

3 prior to his incarceration, and that they “discussed what kind of services 

would be on the plan. And a copy was given to him at that [March] meeting.” The 

father did not yet have an attorney. The evidence shows that the father was not 

involved in the preparation of the service plan “agreement,” that the plan was not 

signed by a 2INgage worker until April 2023, that the father did not sign the plan, 

and that it was not made or incorporated into a trial court’s order until the May 8, 

2023 status hearing. Thus, the service plan provided to the father in March—what 

written draft of the plan, if any, was given to the father by Castro is unknown—was 

not proven, but in the chronology given by Castro, it could not have been the final 

plan ordered by the trial court. The evidence confirms that no efforts were made by 

the Department to facilitate any visitation between K.R. and the father. The 

Department did not know whether the father maintained a legal source of income 

3

According to her testimony, this meeting occurred “sometime between” the February adversary 

hearing and the April status hearing.
10

during the pendency of the case. The Department knew that the father had housing. 

Castro testified that the father complied with a visit from the Department. The father 

allowed Castro to visit his home and although she made suggestions for things to 

repair, she did not testify that the home was unsafe. Castro testified that there were 

no reports of any abuse or domestic violence in the father’s home. 

While Castro testified that the father did not inform the Department of 

residency changes, participation in counseling, or his attending psychological

evaluations, there was no evidence presented that the father was given a written copy

of the final, court-ordered final service plan that required him to do so, nor was there 

any explanation of why the father did not engage in services other than he was in 

incarcerated and the Department did not know of his whereabouts. The father never 

refused a psychological evaluation; he never refused to submit to a drug assessment; 

he was never ordered to have visitation with K.R.; and, he was never referred for 

individual counseling by the Department. Castro admitted that she did not refer the

father to any services or providers from which he could get these services completed

and she testified that the father “was never ordered any visits with [K.R.]” Castro 

also admitted that the father could not have completed the drug assessment without 

the referral, and that the father signed all releases requested of him. The father did 

complete the parenting packet while he was confined in the Taylor County jail. 

While there, he sent letters to Castro but she testified that she did not receive them 

until November 2023. Castro could not recall the last time that she had contact with 

the father. Yet, she asked the trial court to terminate the father’s parental rights 

because K.R. did not have a bond with the father.

“Terminating the parent-child relationship for the parent’s failure to comply 

with a court-ordered service plan necessarily requires a nuanced assessment of the 

parent’s conduct and progress toward plan completion in light of the totality of the 

plan’s requirements and overall goal.” In re R.J.G., 681 S.W.3d 370, 381 (Tex. 
11

2023). “Subsection (O) contemplates direct, specifically required actions.” In re 

A.L.R., 646 S.W.3d 833, 837 (Tex. 2022). “We eschew vague plan requirements 

and have emphasized that the court’s order describing the parent’s necessary actions 

‘must be sufficiently specific to warrant termination of parental rights for failure to 

comply with it.’” R.J.G., 681 S.W.3d at 378 (quoting N.G., 577 S.W.3d at 238).

“[T]ermination is not automatic or required, even if the Department properly 

proves a parent failed to comply with a specific plan provision.” Id. at 379 (citing 

FAM. § 161.001(b)(1)(O) (“The court may order termination of the parentchild relationship if the court finds by clear and convincing evidence . . . that the 

parent has . . . failed to comply.” (emphasis added))). “[T]he trial court bears the 

ultimate responsibility for determining whether that finding supports termination.”

Id. Therefore, it is only the violation of “material” requirements of a plan that justify 

termination under subsection (O). Id. (citing In re J.F.C., 96 S.W.3d 256, 278–

79 (Tex. 2002) (affirming termination under subsection (O) based on parents’ 

failure to comply with “material provisions of the trial court’s orders”); In re T.L.B., 

No. 01-21-00081-CV, 2021 WL 3501545, at *6 (Tex. App.—Houston [1st Dist.] 

Aug. 10, 2021, pet. denied) (mem. op.) (affirming termination under subsection (O) 

based on mother’s failure to comply with “the material requirements of the plan”); 

In re A.P., No. 13-19-00342-CV, 2019 WL 6315429, at *7 (Tex. App.—Corpus 

Christi–Edinburg Nov. 26, 2019, no pet.) (mem. op.) (affirming termination under 

subsection (O) based on mother’s failure to comply with “material provisions of the 

service plan”); In re A.D., 203 S.W.3d 407, 411–12 (Tex. App.—El Paso 2006, no 

pet.) (affirming termination under subsection (O) based on mother’s failure to 

comply with “material requirements” of her plan)). “[I]f the noncompliance is trivial 

or immaterial in light of the plan’s requirements overall, termination under (O) is 

not appropriate.” R.J.G., 681 S.W.3d at 379.
12

On appeal, the father argues that he was not given a reasonable opportunity to 

comply with the service plan due to the inaction on the part of the Department in

making all the necessary referrals for services. We conclude that at least two of the 

father’s failed compliance complaints are indeed a result of inaction by the 

Department to make the required referrals: individual counseling and a 

psychological evaluation. Additionally, the Department never attempted to schedule

visitations, and thus the noncompliance with regular visitations cannot be solely 

attributed to a failure on the father’s part. The father did allow the Department to 

visit his home and he completed a parenting class while he was incarcerated. There 

was no evidence presented about the father’s source of income, and the Department 

complained that the father failed to notify them of any change of address. The latter,

however, appears to have been due to a miscommunication rather than a lack of 

effort on the part of the father as he did send letters to Castro, she just did not receive 

them for several months. The record reflects that the father became incarcerated 

sometime after April 6 but before April 28, 2023.

Thus, the crux of the father’s remaining alleged noncompliance centers 

around a failure by the father to submit to a drug screening test prior to his 

incarceration. Castro testified that this failure delayed the referral for a drug 

assessment as required by the service plan. But the Department admittedly did not 

refer the father to any services or providers from which he could get these services 

completed. The Department prepared the service plan on March 23, 2023, and the 

service plan was signed by Castro and a supervisor on April 5, 2023. The father’s 

signature does not appear on this document. Although incarceration is not a legal 

excuse or defense to a parent’s failure to comply with a service plan order, we cannot 

say here that his failure to comply is solely the result of the father’s inaction. See In 

re L.L.N-P., No. 04-18-00380-CV, 2018 WL 6069853, at *3 (Tex. App.—San 

Antonio Nov. 21, 2018, pet. denied) (mem. op.). There is no admission by the father 
13

that he was using illegal drugs during the pendency of the removal of K.R., or that 

he continued to do so after K.R. was born. Although there is evidence in support of 

termination under subsection (O), we cannot say that the evidence offered by the 

Department establishes by clear and convincing evidence that the father refused to 

participate in the court ordered service plan to the extent that those failures, under 

these circumstances, should result in the termination of his parental rights. 

Accordingly, we sustain the father’s second issue in part to the extent that he 

challenges the factual sufficiency of the evidence supporting termination under 

subsection (O).

This Court’s Ruling

We reverse the trial court’s termination order insofar as it terminated the 

parental rights of K.R.’s father, and we affirm the order of the trial court in all other 

respects. We remand this cause to the trial court for further proceedings consistent 

with this opinion with respect to K.R.’s father. Any proceeding on remand must be 

commenced within 180 days of this court’s mandate. TEX. R. APP. P. 28.4(c).

W. BRUCE WILLIAMS

JUSTICE

July 11, 2024

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.