Opinion
NUMBER 13-16-00641-CV
03-09-2017
IN THE INTEREST OF B. L. D.-O., MINOR CHILD
On appeal from the 25th District Court of Lavaca County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Benavides, and Longoria
Memorandum Opinion by Justice Contreras
In this appeal, appellant B.D. challenges the termination of his parental rights to B.L.D.-O., a minor child. By a single issue, appellant argues that the evidence was legally and factually insufficient to support findings under parts (D), (E), and (O) of subsection 161.001(b)(1) of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O) (West, Westlaw through 2015 R.S.). We affirm.
We refer to the child and his parents by their initials in accordance with the rules of appellate procedure. See TEX. R. APP. P. 9.8(b)(2).
I. BACKGROUND
B.L.D.-O. was born on December 9, 2014 to his mother, K.M.O. On May 1, 2015, the Department of Family Protective Services (the Department) filed a petition alleging that B.D. is the child's father and seeking to terminate the parental rights of both parents under various provisions of family code subsection 161.001(b)(1). See id. § 161.001(b)(1)(C)-(E), (K), (N)-(P).
At a bench trial on November 7, 2016, Kendra Leazer testified that she has been the Department caseworker assigned to this matter since October 2015. Leazer stated that she has not had any contact with B.D. since she became involved with the case because "[h]e's been incarcerated." According to Leazer, a family service plan was prepared for B.D. which required him to, among other things, complete a parenting course, a drug and alcohol assessment, individual counseling, a psychological evaluation, and a batterer's intervention program. The service plan further required B.D. to refrain from criminal conduct, to participate in visitation with B.L.D.-O., to provide a safe and stable home environment, and to undergo random drug screenings. Leazer testified that B.D. reviewed and signed the service plan. However, according to Leazer, B.D. did not complete any of the requested services "other than minimal drug testing when he was not incarcerated" which was administered by a prior caseworker.
The service plan, containing B.D.'s signature and dated August 6, 2015, was entered into evidence. The record also contains temporary orders, dated June 19, 2015 and also signed by B.D., containing many of the same requirements and also generally requiring compliance with the service plan.
Leazer additionally testified that, in February 2015, B.D. told a Department investigator that "he had recently been in rehab for abusing methamphetamines." The child was brought into the Department's care at that time and "[s]ervices were put into place to try to mitigate the concerns for the safety and well being of the child." On August 31, 2015, B.D. admitted to the prior caseworker that he had used methamphetamine, cocaine, and marijuana, and that "he had never been sober longer than six months, except while he was in jail."
Leazer stated that, in September 2015, B.D. "went on a crime spree where he evaded arrest and detention, broke into a habitation, [and] had an unauthorized use of a vehicle." According to Leazer, B.D. admitted to the prior caseworker that he "had taken seven Xanax" during the "crime spree." Leazer identified copies of three judgments dated December 8, 2015, showing that B.D. had been convicted of four different felony offenses: unauthorized use of a motor vehicle, theft of property, and theft of a firearm, each a state-jail felony; and burglary of a habitation, a second-degree felony. See TEX. PENAL CODE ANN. §§ 30.02, 31.03, 31.07 (West, Westlaw through 2015 R.S.). The judgments, which were entered into evidence, showed that the state-jail felony offenses were committed on September 1, 2015, and the burglary was committed on September 2, 2015.
Leazer testified that she visited B.L.D.-O. in August of 2016, that he is "well-bonded" with his caregivers, who are K.M.O.'s aunt and uncle, and that it is in the child's best interests to be adopted by them. Leazer stated that B.D. is not a part of the child's life and has not visited with the child during the time the case has been pending.
According to Leazer, B.D. could have completed "a large majority" of the tasks required of him by the service plan either during the time that he was not incarcerated, or during his incarceration with services provided at "most Texas correctional facilities."
B.D. testified that he completed a parenting class and drug rehabilitation program and passed "multiple" random drug tests while he was incarcerated. He stated that he completed his GED in September of 2016 and he completed the Substance Abuse Felony Program (SAFP) in October of 2016. He testified that, while he was incarcerated, he completed all of the services that were required by the service plan and which were available to him. He stated that he was going to a halfway house the day after the trial. B.D. stated that he had never met Leazer and has not provided her or his attorney with certificates showing the completion of any programs required by the service plan.
When asked by his attorney why termination of his parental rights was not in the child's best interests, B.D. stated in part:
Yeah, I had the opportunity to—to take classes and look at—and—and complete the CPS courses, and I did not do that. I—I instead wanted to party, wanted to—to do drugs, wanted to—to go out and not take care of—of a young child. And I broke laws. And I went to SAFP. I got put on probation, and I successfully completed that. And I'm willing to—I'm willing to do everything in my power to get my son back.
The trial court rendered judgment terminating B.D.'s parental rights, finding by clear and convincing evidence that he had: (1) knowingly placed or knowingly allowed B.L.D.-O. to remain in conditions or surroundings which endangered the child's physical or emotional well-being; (2) engaged in conduct or knowingly placed B.L.D.-O. with persons who engaged in conduct which endangered the child's physical or emotional well-being; and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the child who has been in the Department's custody for not less than nine months as a result of removal for abuse or neglect. See id. § 161.001(b)(1)(D), (E), (O). The trial court additionally found that termination of B.D.'s parental rights is in B.L.D.-O.'s best interests. See id. § 161.001(c). This appeal followed.
The trial court's order also terminated the parental rights of K.M.O., who had previously voluntarily relinquished her parental rights. K.M.O. is not a party to this appeal.
II. DISCUSSION
A. Standard of Review and Applicable Law
Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties and powers normally existing between them, except for the child's right to inherit from the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.). "Termination of parental rights, the total and irrevocable dissolution of the parent-child relationship, constitutes the 'death penalty' of civil cases." In re K.M.L, 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring). Accordingly, termination proceedings must be strictly scrutinized. Id. at 112. In such cases, due process requires application of the "clear and convincing" standard of proof. Id. (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). This intermediate standard falls between the preponderance of the evidence standard of civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re L.J.N., 329 S.W.3d at 671. It is defined as 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 established." TEX. FAM. CODE ANN. § 101.007 (West, Westlaw through 2015 R.S.).
In reviewing the legal sufficiency of evidence supporting termination, we "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." In re J.L., 163 S.W.3d at 85; In re L.J.N., 329 S.W.3d at 671. We must assume that the fact finder resolved disputed facts in favor of its finding if it was reasonable to do so and must disregard all evidence that a reasonable fact finder could have disbelieved or found to be incredible. In re L.J.N., 329 S.W.3d at 671. We must also consider undisputed evidence, if any, that does not support the finding. In re K.M.L., 443 S.W.3d at 113; see In re J.F.C., 96 S.W.3d at 266 ("Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.").
When reviewing the factual sufficiency of the evidence supporting termination, we determine "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the [Department]'s allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In conducting this review, we consider whether the disputed evidence is such that a reasonable finder of fact could not have resolved the disputed evidence in favor of its finding. In re 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." Id.
The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that: (1) the parent committed an act or omission described in family code subsection 161.001(b)(1); and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
B. Analysis
Under part (O) of family code subsection 161.001(b)(1), parental rights may be terminated upon a finding that the parent
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). Part (O) does not provide a means of evaluating partial or substantial compliance with a plan, and it does not "make a provision for excuses" for the parent's failure to comply with the service plan. In re D.N., 405 S.W.3d 863, 877 (Tex. App.—Amarillo 2013, no pet.); In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.). Accordingly, "substantial compliance is not enough to avoid a termination finding" under this statute. In re C.M.C., 273 S.W.3d 862, 875 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
The Department must provide some evidence that the service plan with which the parent must comply is incorporated in a court order which "specifically establishes the actions necessary" for the return of the child. Id. (citing In re C.L., 304 S.W.3d 512, 517 (Tex. App.—Waco 2009, no pet.); In re D.M.F., 283 S.W.3d 124, 133-34 (Tex. App.—Fort Worth 2009, pet. granted, judgm't vacated w.r.m.)).
B.D. argues generally that Leazer's testimony regarding the service plan was incompetent and insufficient to support the judgment because she never contacted B.D. and because she based her testimony on the Department's files, which were not entered into evidence. He asserts that Leazer "was only offering conclusory and self-serving conjecture and statements of hearsay and facts assumed but not in evidence." However, B.D.'s trial counsel did not object to the challenged testimony on this basis. Accordingly, no evidentiary issue has been preserved for our review. See TEX. R. APP. P. 33.1; Bunton v. State, 136 S.W.3d 355, 366 (Tex. App.—Austin 2004, pet. ref'd) (noting that an objection that a witness's testimony was not based on personal knowledge must be preserved by an objection at trial); In re E.M., 494 S.W.3d 209, 229 (Tex. App.—Waco 2015, pet. denied) ("In order to preserve error for appellate review, a party's argument on appeal must comport with its argument in the trial court.").
The only objection to Leazer's testimony made by B.D.'s trial counsel was when, on cross-examination by the attorney ad litem for the child, Leazer stated that the Department received a report regarding an "altercation" between B.D. and K.M.O. that led to the child's removal. Counsel objected that Leazer was "reading from an affidavit that has not been entered into evidence," and the trial court sustained the objection. We do not consider Leazer's "altercation" testimony in our analysis.
We note that the service plan was, in fact, entered into evidence at trial, and the June 19, 2015 temporary orders are part of the clerk's record before this Court. The temporary orders ordered B.D. "to comply with each requirement set out in the Department's original, or any amended, service plan during the pendency of this suit." The temporary orders also specifically and independently required B.D. to undergo a psychological or psychiatric evaluation, counseling sessions, parenting classes, drug and alcohol assessments, random drug and alcohol testing, and substance abuse treatment if recommended by the drug and alcohol assessment. The temporary orders stated that these actions "are necessary to obtain the return of the child, and that failure to fully comply with the orders may result in the restriction or termination of parental rights." B.D. signed the temporary orders. Nevertheless, Leazer testified that B.D. failed to complete any of the required services other than "minimal drug testing." Although B.D. testified that he completed a parenting class and substance abuse program, he acknowledged that he did not complete all of the tasks required of him by the service plan. He also testified that he "had the opportunity to . . . complete the CPS courses" but "did not do that" because he "instead wanted to party" and "do drugs."
Moreover, the evidence established that B.D. failed to comply with the service plan's requirement that he refrain from criminal conduct, as shown by his four felony convictions for acts that took place on September 1 and 2, 2015.
B.D. argues that the service plan was not "reasonably tailored" to address his issues because many of the required items "could not possibly be accomplished by an incarcerated parent." See TEX. FAM. CODE ANN. § 263.202(b)(3) (West, Westlaw through 2015 R.S.) (stating that the trial court shall review the service plan and make findings as to whether "the plan is reasonably tailored to address any specific issues identified by the department"). But the record shows that B.D. was not incarcerated for at least part of the time between the entry of the temporary orders in June 2015 and his incarceration in September 2015. Moreover, Leazer testified that "a large majority" of the required services were available to B.D. while he was incarcerated. In any event, the burden of complying with a court order is on the parent, even if the parent is incarcerated. In re D.N., 405 S.W.3d at 877 (citing Thompson v. Tex. Dep't of Family & Protective Servs., 176 S.W.3d 121, 127 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) ("To require [the Department] to continually inquire as to a prisoner's efforts and accomplishments in regard to a service plan is not reasonable."), overruled on other grounds by Cervantes- Peterson v. Tex. Dep't of Family & Protective Servs, 221 S.W.3d 244, 252 (Tex. App.—Houston [1st Dist.] 2006, no pet.)).
We conclude that the testimony adduced at trial was sufficient to allow the trial court to form a firm belief or conviction that B.D. failed to comply with the provisions of a court order that specifically established the actions necessary for B.D. to obtain the return of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Because there was sufficient evidence to support a finding under part (O) of subsection 161.001(b)(1), we need not address whether the evidence was sufficient to support a finding under parts (D) or (E) of that statute. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) ("Only one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest."); see also TEX. R. APP. P. 47.1. We overrule appellant's issue on appeal.
B.D. does not dispute that B.L.D.-O. had been in the temporary managing conservatorship of the Department for not less than nine months as a result of the child's removal for abuse or neglect, see TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (West, Westlaw through 2015 R.S.), and the record supports this finding.
B.D. also does not dispute that the evidence was sufficient to support the trial court's finding that termination of his parental rights is in the child's best interest. See id. § 161.001(b)(2).
III. CONCLUSION
The trial court's judgment is affirmed.
DORI CONTRERAS
Justice Delivered and filed the 9th day of March 2017.