                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                               ________________
                               NO. 09-17-00338-CV
                               ________________

                    IN THE INTEREST OF E.C.C.
__________________________________________________________________

             On Appeal from the County Court at Law No. 3
                     Montgomery County, Texas
                   Trial Cause No. 15-09-09360-CV
__________________________________________________________________

                                     OPINION

      Appellant, the father of the minor child E.C.C.,1 appeals from an order

terminating his parental rights. The jury found, by clear and convincing evidence,

that statutory grounds exist for termination of appellant’s parental rights, and that

termination of appellant’s parental rights is in the best interest of E.C.C. See Tex.

Fam. Code Ann. § 161.001(b)(1)(D), (E), (H), (N), (Q), (2) (West Supp. 2017). In

two appellate issues, appellant argues that (1) the State’s failure to prepare a family




      1
       We will refer to the minor child as “E.C.C.” We will refer to the child’s father
as “appellant[.]”
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plan of service denied him due process and (2) the trial court lacked jurisdiction. We

affirm the trial court’s order.

                           PERTINENT BACKGROUND

      CPS caseworker Veronica Stubblefield testified that she received the case

involving E.C.C. when it was transferred from Anderson County to Montgomery

County in December of 2016. Stubblefield explained that E.C.C. was removed from

her grandmother’s home in July 2016 because multiple family members were using

drugs around her, and there was also family violence. According to Stubblefield,

E.C.C. tested positive for methamphetamine, as did two family members.

      Stubblefield testified that appellant was incarcerated when E.C.C. was

removed, and appellant had been incarcerated for possession of methamphetamine

since 2014, before E.C.C.’s birth. Stubblefield testified that appellant was sentenced

to ten years of confinement, and he had been denied parole in April 2017.

Stubblefield explained that appellant has never seen or spoken to E.C.C., and that

appellant would have to be released from prison to be considered as a placement for

E.C.C. According to Stubblefield, CPS does not usually set visitation with parents

who are incarcerated. Stubblefield testified that she did not know whether the trial

court’s order naming CPS the temporary managing conservator of E.C.C. was sent

to appellant.

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      Stubblefield testified that although CPS policy and the Family Code require a

service plan to be developed for each parent within a specific period of time, a

service plan was not timely prepared for appellant. According to Stubblefield, the

caseworker from Anderson County informed appellant regarding classes he could

take in prison. Stubblefield explained that she spoke with appellant by phone, and

appellant informed her that he did not have a service plan, so she eventually prepared

a service plan for appellant approximately six weeks before the permanency hearing.

According to Stubblefield, the service plan stated that it would be amended once

appellant is released from prison and set forth some items that might be required of

appellant, such as psychological evaluation and drug screening, among other things.

Stubblefield testified that she never attempted to return the child to appellant because

appellant is incarcerated. Stubblefield explained that CPS was not seeking

termination due to failure to complete a service plan.

      Appellant testified that prior to his incarceration, his “source of income was

through the illegal sale of drugs.” According to appellant, when he was arrested in

April of 2014, he had been living in motels for two or three weeks, and prior to that

time, he was in a faith-based drug rehabilitation center. Appellant explained that he

is incarcerated because he was convicted of possession of methamphetamines. In

addition, appellant testified that he was arrested when E.C.C.’s mother handed him

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a bag of methamphetamine and instructed him to run, and appellant explained that

he told E.C.C.’s mother, “you better get clean and take care of my baby.” Appellant

explained that E.C.C.’s mother had previously told him she might be pregnant, but

they were not sure “because she has irregular periods due to her use of

methamphetamines.” Appellant testified that because he is incarcerated, he was not

present when E.C.C. was born, and he has never held, fed, or spoken to the child.

Appellant testified that he has been denied parole twice, and he explained that his

projected release date is June 13, 2018.

       According to appellant, when he was notified that the child was in the care of

CPS, he asked for a family service plan because legal research he had done in prison

indicated that he should have a family service plan. Appellant stated that he has

“[s]till never received one.” Appellant asked the trial judge not to terminate his

parental rights because he wanted the child to be placed with appellant’s mother.

According to appellant, CPS did not give his family a fair chance to have the child

placed with them, and no one has explained why. Appellant opined that his parents

could provide a safe, stable environment for the child. Appellant testified that he

does not feel that he has abandoned the child, and he explained that during his

incarceration, he has written to the child and tried to support the child mentally and

spiritually.

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      Court Appointed Special Advocate (“CASA”) supervisor Marilyn McQueeny

testified that CASA is a volunteer-driven organization whose job is to make

recommendations to the court regarding the best interest of the child, with the

ultimate goal of insuring that every child is placed in a safe, stable, nurturing

permanent home. McQueeny explained that CASA’s recommendation for E.C.C.’s

best interest was termination of both parents’ rights and to allow E.C.C. to be

adopted. CASA volunteer Shari Wood testified that E.C.C. had grown happier and

more trusting of people in E.C.C.’s current placement, and Wood recommended

termination of both parents’ rights and adoption of E.C.C.

                                     ISSUE ONE

      In his first issue, appellant contends the State’s failure to prepare a family plan

of service for him denied him due process. Appellant cites the provision of the

Family Code that provides that CPS shall file a service plan not later than the forty-

fifth day after the date the court renders a temporary order appointing CPS as the

child’s temporary managing conservator. See Tex. Fam. Code Ann. § 263.101 (West

Supp. 2017). In addition, appellant cites other provisions of the Family Code that

require CPS to designate personnel to ensure compliance with the service plan,

govern what a service plan must contain, provide for the development of a service

plan jointly by the child’s parents and a CPS representative, require that the court

                                           5
must evaluate the parties’ compliance with the service plan, and require that CPS

must prepare a permanency plan that includes compliance with the service plan. See

Tex. Fam. Code Ann. § 263.005 (West 2014); Id. §§ 263.102, 263.103(a),

263.303(b), 263.3025(b) (West Supp. 2017). Appellant acknowledges in his brief

that “[c]ase law does not provide a case on point addressing the complete lack of a

service plan as a fundamental due process issue.” Appellant asserts that, read

together, the statutes “clearly demonstrate that the legislative intent is for due

process to be afforded to parents in CPS cases.”

      The record reflects that appellant’s rights were terminated for knowingly

allowing E.C.C. to remain in conditions or surroundings that endangered E.C.C.’s

physical or emotional well-being; engaging in conduct or knowingly placing E.C.C.

with persons who engaged in conduct that endangered E.C.C.’s physical or

emotional well-being; voluntarily, with knowledge of the pregnancy, abandoning

E.C.C.’s mother during her pregnancy and continuing through the birth, as well as

failing to support or provide medical care for the mother during the period of

abandonment before E.C.C.’s birth, and remaining apart from E.C.C. or failing to

support E.C.C. since birth; constructively abandoning E.C.C.; and knowingly

engaging in criminal conduct that resulted in his conviction and imprisonment and

inability to care for E.C.C. for not less than two years. See Tex. Fam. Code Ann. §

                                         6
161.001(b)(1)(D), (E), (H), (N), (Q), (2). We need not determine whether the Family

Code’s provisions requiring the State to provide Appellant with a service plan raises

a fundamental due process issue, because the trial court’s order terminating

appellant’s parental rights was not based upon any failure by appellant to complete

a service plan, and any such error would be harmless. See id. Accordingly, we

overrule issue one.

                                   ISSUE TWO

      In his second issue, appellant contends that the trial court lacked jurisdiction

because the trial court entered an order establishing the parent-child relationship

between appellant and E.C.C., and although CPS also filed a petition to terminate

appellant’s parental rights, CPS did not demonstrate materially and substantially

changed circumstances or file a motion to modify the order. As support for his

argument, appellant cites sections 155.001(a) and 155.003(a) of the Family Code.

See id. § 155.001(a) (West Supp. 2017) (providing that a trial court acquires

continuing, exclusive jurisdiction in connection with a child on rendition of a final

order); Id. § 155.003(a) (West 2014) (providing that a court with continuing,

exclusive jurisdiction may modify its order regarding conservatorship and

possession of the child, access to the child, and support of the child). Section

156.101(a) of the Family Code provides that the trial court may modify an order

                                          7
regarding conservatorship, possession, or access if modification is in the child’s best

interest and the circumstances of the child, a conservator, or other affected party

have materially and substantially changed. Id. § 156.101(a) (West 2014).

      According to appellant, two conflicting “live” orders now exist: one

adjudicating him as E.C.C.’s father, naming him joint managing conservator, and

ordering him to pay half of any medical expenses not covered by insurance; and

another order terminating his parental rights. Appellant asserts that the Family Code

“does not give a court of continuing jurisdiction the ability to do anything other than

modify its original order.”

      Section 161.001 of the Family Code, which provides for involuntary

termination of parental rights, does not require evidence of a material and substantial

change. See In the Interest of N.R.T., 338 S.W.3d 667, 673 (Tex. App.—Amarillo

2011, no pet.); see also Tex. Fam. Code Ann. § 161.001. A suit to terminate parental

rights differs from a suit for modification. See Slatton v. Brazoria Cty. Protective

Servs. Unit, 804 S.W.2d 550, 554 (Tex. App.—Texarkana 1991, no writ). “[T]he

distinction between section 156.101 governing a modification proceeding, and

section 161.001 governing a termination proceeding, is more than procedural or

semantic.” In the Interest of C.T., No. 12-09-00401-CV, 2010 WL 4880631, at *4

(Tex. App.—Tyler Nov. 30, 2010, no pet.) (mem. op.). A modification proceeding

                                          8
and a termination proceeding involve different issues and have different standards

of proof. Id. Unlike the consequences of modification, the consequences of

termination are permanent. Id. at *5. In addition, while a modification proceeding

determines whether circumstances of the child or a conservator have materially and

substantially changed and whether modification is in the child’s best interest, a

termination proceeding determines whether the parent engaged in any of the acts or

omissions listed in section 161.001 and whether termination is in the child’s best

interest. Interest of C.T., 2010 WL 4880631, at *4. Furthermore, a trial court’s order

terminating parental rights must be supported by clear and convincing evidence, but

an order modifying conservatorship is simply reviewed for abuse of discretion. Id.

      Because the statutory schemes for modification and termination differ as

explained above, we conclude that the trial court did not lack jurisdiction to enter an

order terminating appellant’s parental rights. Accordingly, we overrule issue two.

Having overruled both of appellant’s issues, we affirm the trial court’s order

terminating appellant’s parental rights to E.C.C.

             AFFIRMED.
                                              ______________________________
                                                     STEVE McKEITHEN
                                                         Chief Justice
Submitted on November 21, 2017
Opinion Delivered January 18, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.
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