




02-10-257-CV
























COURT
  OF APPEALS
SECOND
  DISTRICT OF TEXAS
FORT
  WORTH
 



 
NO. 02-10-00257-CV
 
 



IN THE INTEREST OF K.G., 
  A CHILD



 
 
------------
 
FROM THE
323RD DISTRICT COURT OF TARRANT COUNTY
 
------------
 
OPINION
 
------------
I.  Introduction
In seven issues, Appellant Mother appeals the
termination of her parental rights to K.G.[1] 
We affirm.
II.  Factual and Procedural Background
This case involves a second attempt by the Department
of Family and Protective Services (DFPS) to terminate Mother’s parental rights
to K.G.  DFPS filed its first petition to terminate Mother’s parental rights to
K.G. on January 14, 2008.[2]
 The trial court denied the termination, appointed DFPS as K.G.’s permanent
managing conservator, and signed an order dismissing the termination suit on
December 17, 2008.  DFPS filed its second petition to terminate Mother’s
parental rights to K.G. on June 26, 2009.  The second trial—the one from which
Mother now appeals—occurred in May 2010.[3]
K.G. was around eight years old when DFPS filed its
first petition, and DFPS’s plan for K.G. was for her to be adopted by the
McDougals, her foster family at that time.  At the May 2010 trial, DFPS offered
some testimony pertaining to events prior to the 2008 petition, including that
Child Protective Services (CPS) had received a referral in December 2007 about
negligent supervision of K.G. by Mother and that Mother had had prior involvement
with CPS because of concerns about her drug use and her tendency to disappear.[4] 
Kimberly Russell, a CPS investigator, testified that in December 2007, Mother
admitted that she had been smoking marijuana since age fourteen and that she
had a history of selling crack cocaine, although she told Russell that she had
stopped selling crack cocaine in July 2007.  Russell informed Mother that she
would have to take a hair follicle drug test or K.G. would remain apart from
Mother, but Mother did not take the drug test.  Mother was verbally belligerent
and made threats throughout the investigation.  On January 8, 2008, Mother
spoke with Russell by phone and asked about her other two children but not
about K.G.[5]
 Russell’s involvement in the CPS investigation ended January 16, 2008, after
concluding that the CPS referral of neglectful supervision of K.G. was “unable
to determine.”
On December 17, 2008, the trial court denied DFPS’s
first petition—although Mother had not completed most of the services listed on
her CPS service plan[6]—and
ordered Mother to pay $100 per month in child support, to have reasonable
visitation with K.G., to complete a hair follicle drug test by January 2, 2009,
and to complete a psychological evaluation.  The trial court found in its order
that appointment of K.G.’s parents as her managing conservators would not be in
K.G.’s best interest because “the appointment would significantly impair the
Child’s physical health or emotional development.”
In addition to a fictive kin voluntary placement, K.G.
had lived in three or four foster homes by May 2010.  Cindy Lopez, K.G.’s
therapist; Russell; Ashley Moore, the ongoing CPS caseworker; and Shirley Morris,
K.G.’s foster mother at the time, testified at the second trial, in addition to
K.G. testifying in camera.
In camera, K.G. told the trial court that she was in
fourth grade and had lived with Shirley for about five months.  K.G. stated, “I
want to be adopted because I’m tired of moving around, going from place to
place.”  She told the trial court that Mother had had a long time to get her
back and stated, “[Mother] had one chance that all she had to do was get
her—I’m sorry—take her classes over again, but she didn’t, so I feel like she
really doesn’t care.”  K.G. said, “No matter how hard she cries or sorry, to
say sorry, I really don’t care any more for her, so I want to be adopted.”[7]
 K.G. informed the trial court that she had lived apart from Mother for four or
five years and that she had not seen Mother recently.
Moore, the ongoing CPS
caseworker, testified that Mother did not take the court-ordered hair follicle
drug test by January 2, 2009, but that Mother took a hair follicle drug test on
January 9, 2009.  The next time Mother complied with a CPS request to take a
hair follicle drug test was June 2, 2009.
Mother completed her
psychological evaluation, admitted as Exhibit 8, and gave the following
information in the January 29, 2009 evaluation:  Mother was twenty-six
years old, had three children, and her then-two-year-old daughter was born with
marijuana in her system.  Mother started using marijuana when she was
seventeen, she attended outpatient drug treatment in 2007 but failed to
complete it because of lack of transportation, and the last time she used
marijuana was in December 2008.  She denied ever using cocaine or ever having
suicidal ideation.  However, she had thought seriously about hurting others,
and when CPS became involved in her life, she occasionally heard voices telling
her to hurt CPS.  She tried to fight one of her CPS caseworkers once and the
police had come to her house “plenty of times.”
Mother made the following statements to the examiner:  “I
wanted to kill them [the last time she was in court], they told me I can’t be
around nobody’s kids, I wanted to break the persecutor’s [sic] throat”; and “I
be blacking out half of the time, I don’t need medication, I have been counting
to calm my nerves.”  Testing during the evaluation revealed that Mother was in
the borderline range of intellectual functioning and had difficulty learning,
with poor insight about her mental health issues; additional diagnosis
classified Mother with schizoaffective disorder, bipolar type, and cannabis
dependence.  Mother took some classes through “Positive
Influences” based on recommendations in the psychological evaluation, but she
did not seek help for her mental health issues.[8]
Moore admitted that Mother had paid child support and
that Mother had attended visits with K.G. from February to September 2009.  However,
in September 2009, Mother attended only one of three possible visits.  Mother did
not attend any visits in October or November 2009, and Moore was unable to
reestablish contact with Mother until December 2009.  Mother had visits with K.G.
on December 28, 2009, and January 28, 2010, but after January 28, 2010, Mother did
not attend any visits with K.G.[9]
Moore testified that there had been a period of time
when Mother had kept in regular contact with her but then Mother started going
months between phone contacts with her.[10]
 Moore testified that Mother’s phone numbers were “typically disconnected”[11]
and that when she went to Mother’s last known address in October 2009, she was
informed that Mother no longer resided there.  Mother told Moore, when Moore
asked her where she had been living over the last few months, that she had been
“drifting from friends and family members” and that she “drifts from place to
place.”  Moore said that the last time she saw Mother was at the January 28,
2010 visit with K.G.
Moore testified that after the 2008 trial, she asked
Mother to complete additional services, including parenting classes, anger
management classes, individual counseling, and a drug assessment.  She said
that she did this as part of CPS’s obligation to attempt to reunify the family
and so that Mother could show the trial court that she had mitigated the
circumstances that led to K.G.’s removal.  Mother completed the parenting
classes but complied with only two of fourteen CPS-requested drug tests, even
though Moore told Mother that failure to take a drug test would result in a
presumption that the test would have been positive.
Moore testified that she sent a letter to Mother on
April 28, 2009, outlining additional recommended services, and on May 14, 2009,
Mother acknowledged to Moore that she received the letter.  Moore admitted
during cross-examination that nothing in her letter to Mother about the
additional services stated that failure to perform them would have an impact on
whether K.G. was returned to her.  She also acknowledged that Mother was not
under a court order to take the other drug tests Moore requested and that Mother
had done a drug assessment in 2008.  Moore admitted that CPS never made a
finding of physical abuse of K.G. by Mother and that CPS removed K.G. from
Mother based on the risk of neglect.
Moore urged Mother to seek mental health treatment
based on Mother’s erratic behavior and exhibition of different personalities,[12]
although Mother’s drug issues were Moore’s main concern.  Moore allowed K.G. to
pick the places for her visits with Mother so that Mother and K.G. could have
good visits.  She provided payments for drug testing, counseling, and anger
management and parenting classes, and she provided bus passes, all to help
Mother complete her services.  Moore stated that the services were offered to
Mother in the hope that K.G. could be reunited with her and that “whether
[Mother] believes me or not, I really, truly wanted to reunify her.”[13]
Based on Mother’s failure to complete services, CPS
decided in May 2009 to file a second petition to terminate Mother’s parental
rights to K.G.; in June 2009, it filed the petition, alleging the following
grounds:  execution of an unrevoked or irrevocable affidavit of relinquishment
of parental rights; termination of parental rights to another child based on an
endangerment finding; failure to support K.G. in accordance with Mother’s
ability during a period of one year ending within six months of the date of
filing the petition; failure to comply with the provisions of a court order
that specifically established the actions necessary to obtain K.G.’s return;
and constructive abandonment.  See Tex. Fam. Code Ann. § 161.001(1)(F),
(K), (M), (N), (O).  However, Moore admitted that, as of May 2009, Mother had
not constructively abandoned K.G.  She also admitted that immediately after the
first termination trial, CPS’s plan for K.G. was still for an unrelated
adoption with a concurrent plan of relative adoption.
Moore replied, “Yes,” when asked whether, at the
beginning of the case, K.G. was bonded with and loved Mother and when asked if,
over time, she had seen a significant change in these circumstances.  She
stated that CPS’s plan for K.G. was termination of Mother’s parental rights
followed by adoption by K.G.’s foster mother, Shirley.  Moore served Mother
with DFPS’s new petition on January 6, 2010.
Moore testified that Mother’s housing instability, her
failure to alter her pattern of behavior, and her lack of parenting skills
would endanger K.G. if K.G. were returned to her.  Moore also testified that
CPS still had concerns that Mother was dealing or using illegal substances.  Moore
concluded that there would be physical and emotional danger to K.G. if she were
returned to Mother and that it would be in K.G.’s best interest to terminate
Mother’s parental rights.
Shirley testified that K.G. was placed with her on
December 18, 2009, and that she intended to adopt K.G. if Mother’s parental
rights were terminated. Shirley also testified that K.G. has been diagnosed
with ADHD, that K.G.’s behavior suffered when she had visits with Mother,
including getting into trouble at school, and that K.G.’s behavior improved
when her visits with Mother stopped.
Mother moved for a directed verdict on all of the
termination grounds, and the trial court granted the directed verdict in part after
DFPS waived the following grounds:  execution of an unrevoked or irrevocable
affidavit of relinquishment of parental rights; termination of parental rights
to another child based on an endangerment finding; and failure to support K.G.
in accordance with Mother’s ability during a period of one year ending within
six months of the date of filing the petition.  See Tex. Fam. Code Ann.
§ 161.001(1)(F), (K), (M).  In the order terminating Mother’s parental rights,
the trial court found that Mother had constructively abandoned K.G., that she had
failed to comply with the provisions of a court order that specifically
established the actions necessary for her to obtain K.G.’s return, and that it
was in K.G.’s best interest to terminate Mother’s parental rights.  See id.
§ 161.001(1)(N), (O), (2).  This appeal followed.
III.  Termination of Parental Rights
In her first two issues, Mother argues that DFPS did
not plead or prove the grounds required for termination under family code section
161.004 and that the evidence is legally and factually insufficient to show
that a material change of circumstances occurred since the previous order
denying termination.  DFPS responds that because termination was proper under
section 161.001, it was not required to prove, and the trial court was not
required to find, that termination was established under section 161.004.
A parent’s rights to “the companionship, care,
custody, and management” of his or her children are constitutional interests
“far more precious than any property right.”  Santosky v. Kramer, 455
U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d
534, 547 (Tex. 2003).  “While parental rights are of constitutional
magnitude, they are not absolute.  Just as it is imperative for courts to
recognize the constitutional underpinnings of the parent-child relationship, it
is also essential that emotional and physical interests of the child not be
sacrificed merely to preserve that right.”  In re C.H., 89 S.W.3d 17, 26
(Tex. 2002).  In a termination case, the State
seeks not just to limit parental rights but to erase them permanently—to divest
the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child’s right to inherit.  Tex.
Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith, 685 S.W.2d 18,
20 (Tex. 1985).  We strictly scrutinize termination proceedings and strictly
construe involuntary termination statutes in favor of the parent.  Holick,
685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex. App.—Fort
Worth 2009, no pet.).
The trial court must find the grounds for termination
by clear and convincing evidence.  Tex. Fam. Code Ann. § 161.206(a) (West 2008).
 Along with a best interest finding, a finding of only one ground
alleged under section 161.001(1) is sufficient to support a judgment of
termination.  In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth
2007, no pet.).  But termination can only be upheld on a ground that was both
pleaded by the party seeking termination and found by the trier of fact.  Vasquez
v. Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189, 194
(Tex. App.—Houston [1st Dist.] 2005, pet. denied).  The dispositive question before
us is:  Because DFPS sought termination of Mother’s parental rights after the
trial court rendered an order denying termination after the first termination
trial, did DFPS have to plead and prove the grounds in section 161.004 in
addition to the grounds for termination under section 161.001, and did the
trial court have to make findings thereon?  
A.  Statutory Construction
The fundamental guiding rule of statutory construction
is to determine and give effect to the legislature’s intent.  Harris Cnty.
Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009).  Additionally,
government code section 311.023 states that in construing a statute, regardless
of whether it is ambiguous on its face, we may consider, among other things,
the circumstances under which the statute was enacted; the statute’s
legislative history; and the former statutory provisions, including laws on the
same or similar subjects.  See Tex. Gov’t Code Ann. § 311.023 (West
2005).
B.  Family Code Chapter 161
Family code section 161.001, used in the majority of
termination cases, originated in 1907; section 161.004, originally codified as
section 15.025 in 1993, is a relatively recent addition to the family code.  Compare
Act approved Apr. 5, 1907, 29th Leg., 2nd C.S., ch. LXIV, 1907 Tex. Gen. Laws
135, 135–37 (current version at Tex. Fam. Code Ann. § 161.001), with Act
of May 27, 1993, 73rd Leg., R.S., ch. 597, § 2, 1993 Tex. Gen. Laws 2254,
2255, amended by and recodified as Act of April 6, 1995, 74th
Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 213–14 (current version at
Tex. Fam. Code Ann. § 161.004 (West 2008)).  
1.  1993
          a.  Section 15.025 (Predecessor of Section
161.004)
Section 15.025 was added in response to the Texarkana
Court of Appeals’s holding that res judicata applied to an attempt to
relitigate issues previously tried in a termination case.  See Slatton
v. Brazoria Cnty. Protective Servs. Unit, 804 S.W.2d 550, 552–53 (Tex.
App.—Texarkana 1991, no writ); see also In re J.H., No.
02-04-00031-CV, 2004 WL 2630225, at *12 (Tex. App.—Fort Worth Nov. 18, 2004,
pet. denied) (mem. op.) (citing cases stating that the legislature passed
section 161.004 in response to Slatton); In re T.V., 27 S.W.3d
622, 624 n.1 (Tex. App.—Waco 2000, no pet.) (“This provision was passed in
response to the concern created by the holding in Slatton.”).  In Slatton,
notwithstanding the court’s res judicata holding, because the parents had failed
to raise their res judicata objection during trial, the court held that the trial
court could consider the accumulation of evidence from the State’s initial
visit with the family in 1983 to the final trial in 1989.  804 S.W.2d at
553–56.  The legislature added section 15.025 two years after Slatton.  See
Act of May 27, 1993, 73rd Leg., R.S., ch. 597, § 2, 1993 Tex. Gen. Laws
2254, 2255 (amended and recodified 1995).  
Section 15.025 states:
(a)  The court may
grant a petition to terminate the parent-child relationship of a parent who is
not the petitioner after an order or decree under Section 15.05(c)[[14]]
of this code that denied a petition to terminate the parent-child relationship
of that parent has been entered only if:
 
(1) the petition
under this section is filed after the date the order or decree under Section
15.05(c) of this code is entered; and
 
(2) the court makes
a finding under Subsection (b) or (c) of this section.
 
(b)  The court may
grant a petition to terminate under Subsection (a) of this section if the court
finds clear and convincing evidence that:
 
(1) since the date
the order or decree under Section 15.05(c) of this code was entered the parent
committed an act listed under Section 15.02(a)(1) of this code; and
 
(2)
termination is in the best interest of the child.
 
(c)  The court may
grant a petition to terminate under Subsection (a) of this section if the court
finds clear and convincing evidence that:
 
(1) the
circumstances of the child, parent, sole managing conservator, possessory
conservator, or another party affected by the order or decree under Section
15.05(c) of this code have materially and substantially changed since the date
that order or decree was entered;
          
(2) the parent
committed an act listed under Section 15.02(a)(1) of this code before the date
the court’s order or decree under Section 15.05(c) was entered; and
 
(3)
termination is in the best interest of the child.
 
(d) At the hearing
on a petition under this section, the court may consider evidence presented at
a previous hearing on a petition to terminate the parent-child relationship of
the parent with respect to the same child.
 
Id.  Section
four of the 1993 Act states that section 15.025 “applies only to a petition to
terminate the parent-child relationship filed after a court order or decree [entered
on or after September 1, 1993] that denied a petition to terminate the
parent-child relationship.”  See Act of May 27, 1993, 73rd Leg., R.S.,
ch. 597, § 4, 1993 Tex. Gen. Laws 2254, 2255.
b.  Section 15.02 (Predecessor of Section 161.001)
In the 1993 amendment of section 15.02, section 161.001’s
predecessor, the legislature added subsection (b), which stated that a petition
to terminate parental rights that is filed after the court has entered an order
or decree denying a petition to terminate the same parent’s rights “may be
granted only as provided by Section 15.025 of this code.”  Act of May 27,
1993, 73rd Leg., R.S., ch. 597, § 1, 1993 Tex. Gen. Laws 2254, 2255, repealed
by Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 2(1), 1995 Tex. Gen.
Laws 113, 282 (emphasis added).  


 
          c.  Conclusion
At the time of section 15.025’s codification in 1993,
the plain language set out in sections 15.02(b) and 15.025 clearly indicated
the legislature’s intent that section 15.025 exclusively govern the “second
petition” situation.
2.  1995
          a.  Recodification of Section 15.025 as
Section 161.004
The 1995 and current version of section 161.004
states,
(a) The court may
terminate the parent-child relationship after rendition of an order that
previously denied termination of the parent-child relationship if:
 
(1)   
the petition under this section is filed after the date the order
denying termination was rendered;
 
(2)   
the circumstances of the child, parent, sole managing conservator,
possessory conservator, or other party affected by the order denying
termination have materially and substantially changed since the date that the
order was rendered;
 
(3)   
the parent committed an act listed under Section 161.001 before the date
the order denying termination was rendered;  and
 
          (4)
termination is in the best interest of the child.
 
(b) At a hearing
under this section, the court may consider evidence presented at a previous
hearing in a suit for termination of the parent-child relationship of the
parent with respect to the same child. 
 
Tex. Fam. Code Ann. § 161.004.  The legislature
streamlined the language used in section 15.025 when it recodified the section
as section 161.004, and it deleted the word “only” in section 15.025(a).[15]
                   b.  Recodification of Section 15.02
as Section 161.001
When it codified section 15.02 as current section 161.001,
the legislature omitted subsection (b) entirely, removing the language that
stated that a petition to terminate parental rights that is filed after the
court has entered an order or decree denying a petition to terminate the same
parent’s rights “may be granted only as provided by Section 15.025 of this
code.”  Act of May 27, 1993, 73rd Leg., R.S., ch. 597, § 1, 1993 Tex. Gen.
Laws 2254, 2255, repealed by Act of Apr. 6, 1995, 74th Leg., R.S., ch.
20, § 2(1), 1995 Tex. Gen. Laws 113, 282 (emphasis added).
          c.  Conclusion
Because of the omission of the provisions that made
former section 15.025 (now section 161.004) the exclusive method to terminate a
parent’s rights after the trial court had previously denied an order
terminating the parent’s rights, we must now determine whether, in the current statutory
scheme pertaining to involuntary termination, the legislature intended to allow
the trial court the option of terminating a parent’s rights under either
161.001 or 161.004.[16] 
Cf. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286 (Tex.
1999) (concluding that when specific provisions of a “nonsubstantive”
codification and the code as a whole “are direct, unambiguous, and cannot be
reconciled with prior law, the codification rather than the prior, repealed
statute must be given effect”); In re A.L., No. 13-01-00388-CV, 2002 WL
34230855, at *5 n.8 (Tex. App.—Corpus Christi Aug. 22, 2002, no pet.) (not
designated for publication) (noting that “if the trial court was proceeding
under . . . section [161.004], TDPRS had the additional burden at trial to
produce evidence documenting a ‘substantial change’ in circumstances subsequent
to the July 19, 1999 determination that [Father’s] rights not be terminated”).[17]


 
3.  Case Law Involving Current Section 161.004
Section 161.004 appears to be typically used when parents
raise res judicata in a termination trial or argue that it should have been
raised.[18] 
See In re D.S, 333 S.W.3d 379, 385–86 (Tex. App.—Amarillo
2011, no pet.); M.F., 2010 WL 1948625, at *1–2 (applying section 161.004
in response to res judicata argument).  In D.S., for example, the trial
court had previously denied a petition to terminate the father’s parental
rights, and the Amarillo Court of Appeals applied section 161.004 to defeat the
father’s ineffective assistance claim based on res judicata.  333 S.W.3d at 386
(stating that to show ineffective assistance, “[i]n light of the function of
[section] 161.004, something beyond failure to present a res judicata defense
is necessary”).  But the court upheld the termination based on the father’s
failure to challenge the trial court’s section 161.001(1)(M), (N), and (Q)
findings rather than on the application of section 161.004.  Id. at 388–89;
see In re N.A., No. 02-10-00022-CV, 2010 WL 3834640, at *9 (Tex.
App.—Fort Worth Sept. 30, 2010, no pet.) (mem. op.) (referring to section
161.004 as a trial court’s alternative choice—as a postponement—between
committing to termination under section 161.001 or making DFPS the child’s
managing conservator indefinitely).
It is unclear from the case law whether,
post-recodification, section 161.004 remains the exclusive means to terminate a
parent’s rights after denial of a prior termination or just a means to admit
evidence from a prior termination trial.  Compare In re M.P., No.
02-10-00064-CV, 2010 WL 5187694, at *1–2 (Tex. App.—Fort Worth Dec. 23, 2010,
no pet.) (mem. op.) (noting that the trial court’s termination order was based
on the jury’s findings under section 161.004), In re B.L.H., No.
01-06-00817-CV, 2008 WL 864072, at *5–6, 11 (Tex. App.—Houston [1st Dist.] Mar.
27, 2008, no pet.) (mem. op.) (holding that the evidence was sufficient to
support trial court’s 161.004 findings on material and substantial change in
circumstances and that termination was in the child’s best interest), J.H.,
2004 WL 2630225, at *11–13 (holding that the evidence was factually sufficient
to support jury’s finding that circumstances had materially and substantially
changed and stating that “[a]fter TDFPS satisfied section 161.004(a), the trial
court was statutorily authorized under subsection (b) to consider all of the
evidence presented at the previous termination suit”), and In re
C.T.E., 95 S.W.3d 462, 465 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied) (stating that section 161.004 was the applicable law when trial court
had previously failed to terminate father’s rights), with In re
N.R.T., 338 S.W.3d 667, 676, 678–89 (Tex. App.—Amarillo 2011, no pet.)
(holding that evidence was legally and factually sufficient to support the
trial court’s section 161.001 findings, addressing section 161.004 in the
context of res judicata, and holding that the trial court’s implied findings
supported termination under section 161.004), and In re M.J., No.
09-05-00331-CV, 2006 WL 3438058, at *1–2 (Tex. App.—Beaumont Nov. 30, 2006, no
pet.) (mem. op.) (upholding termination under section 161.001(1)(P) and (R) even
though a prior termination had been denied and citing section 161.004(b) for
the proposition that “[t]he court may consider evidence presented at a previous
hearing in a subsequent suit for termination with respect to the same child”).
Because the case law is unclear with regard to the necessity
of applying section 161.004 exclusively in a termination after the prior denial
of a termination, we will review the statutory scheme under chapter 161.  See
Tex. Gov’t Code Ann. § 311.023; see also Harris Cnty., 283 S.W.3d
at 842.
4.  Family Code Chapter 161’s Statutory Scheme
Section 161.001 provides that a court may order
termination of the parent-child relationship if the court finds by clear and
convincing evidence that a parent has committed one of twenty listed items and
that termination would be in the best interest of the child.  See Tex.
Fam. Code Ann. § 161.001(1)(A)–(T), (2).  The Austin Court of Appeals has noted
that the sections that follow section 161.001 
apply to specific
situations such as the rights of an alleged biological father, involuntary
termination based on inability to care for the child, termination of rights
after a prior denial of a petition to terminate, termination when the parent is
the petitioner, termination after abortion, and termination when pregnancy
results from a criminal act.
 
Vallejo v. Tex. Dep’t of Fam. & Protective Servs., 280 S.W.3d 917, 918 n.1 (Tex. App.—Austin 2009, no
pet.); see, e.g., Tex. Fam. Code Ann. § 161.007 (West 2008)
(“Termination When Pregnancy Results from Criminal Act”); see also Dockery
v. State, No. 03-05-00713-CV, 2006 WL 3329794, at *1 (Tex. App.—Austin Nov.
14, 2006, pet. denied) (mem. op.) (noting that
the father who was seeking to terminate his rights under section 161.005—“Termination
When Parent is Petitioner”—was trying to do so “under a rarely used provision
of the family code”).  
Some of the sections that follow section 161.001, like
section 161.004, have additional requirements.  Compare Tex. Fam. Code
Ann. § 161.003 (requiring a finding that the parent have a mental illness or
deficiency and the resulting inability to meet the child’s mental, physical,
and emotional needs, in addition to a best interest finding), with id.
§ 161.004 (requiring a finding under section 161.001(1) and a best
interest finding, as well as the post-denial filing and material and
substantial change requirements).  One has fewer.  See id. § 161.002
(allowing summary termination of an alleged biological father’s parental rights
without the necessity of a best interest finding if the alleged father fails to
act).  And one is so narrow that it has yet to be construed.  See id. § 161.006
(“Termination After Abortion”).
Chapter 161, entitled “Termination of the Parent-Child
Relationship,” presents an overlapping pattern:  a catchall general statute, section
161.001, which covers different fact scenarios that may also include situations
covered by the statutes that follow section 161.001, plus the child’s best
interest, and statutes created to respond to case law, such as section 161.004
in response to Slatton, or to potential situations, such as section
161.006.  This overlapping pattern has carried over into the interpretive case
law.
For example, when an alleged father admits or
otherwise claims paternity, section 161.002(a) permits him to fend off summary
termination of his parental rights and requires DFPS to satisfy the high burden
of proof of clear and convincing evidence necessary for termination of parental
rights under section 161.001.  See In re K.W., No.
02-09-00041-CV, 2010 WL 144394, at *3 (Tex. App.—Fort Worth Jan. 14, 2010, no
pet.) (mem. op.); see also In re D.V., No. 05-10-00413-CV, 2010 WL
4192892, at *6 (Tex. App.—Dallas Oct. 26, 2010, no pet.) (mem. op.) (concluding
that the court did not need to reach father’s section 161.002 issues when it
had already concluded that the evidence was legally and factually sufficient to
support termination under section 161.001); In re D.A., No.
02-09-00460-CV, 2010 WL 3618718, at *1, 5 (Tex. App.—Fort Worth Sept. 16, 2010,
no pet.) (mem. op.) (same).
Section 161.003 sets out a list of five elements that
the court must find before it may order termination based on the parent’s
inability to care for a child, including a finding of a mental or emotional
illness or a mental deficiency that renders the parent unable to provide for
the child’s physical, emotional, and mental needs.  See Tex. Fam. Code
Ann. § 161.003(a)(1)–(5).  But section 161.003 is not the exclusive way to
terminate the parental rights of someone with a mental illness or deficiency.  See
In re K.B., No. 02-09-00441-CV, 2010 WL 4028107, at *12 n.16 (Tex.
App.—Fort Worth Oct. 14, 2010, no  pet.) (mem. op.) (“Texas law provides that
parental rights may properly be terminated when a trial court has made a
finding under either section 161.001(1) or section 161.003, plus a best
interest finding under section 161.001(2).”); see also In re J.A.W., No.
06-09-00068-CV, 2010 WL 1236432, at *3 n.2, 4 (Tex. App.—Texarkana Apr. 1,
2010, pet. denied) (mem. op.) (holding that because the evidence was sufficient
to support the trial court’s section 161.001(1) finding, the court did not have
to reach the other section 161.001(1) findings or the finding under 161.003); In
re A.L.M., 300 S.W.3d 914, 915, 931–32 & n.17 (Tex. App.—Texarkana
2009, no pet.) (refusing to modify the trial court’s order to support
termination under section 161.001(1)(D) or (E) when the sole basis for
termination was the trial court’s findings under section 161.003, which were
not supported by legally sufficient evidence).  Compare In re J.P., No.
02-07-00026-CV, 2008 WL 283295, at *13 (Tex. App.—Fort Worth Feb. 4, 2008, no
pet.) (mem. op.) (noting that to terminate under section 161.003, DFPS “must
prove additional elements not required under section 161.001(1)(D) and (E)” and
that while DFPS is not required to file a case under section 161.003, “when a
parent suffers from mental illness, section 161.003 may be more appropriate”), with
In re D.R., No. 02-06-00146-CV, 2007 WL 174351, at *7 (Tex. App.—Fort Worth
Jan. 25, 2007, no pet.) (mem. op.) (“Texas case law overwhelmingly supports
TDFPS’s contention that parental rights may properly be terminated under either
section 161.001 or section 161.003 in cases in which a parent’s mental illness
or deficiency is relevant.”).  In D.R., this court rejected the mother’s
argument that because she suffered from a mental deficiency, DFPS was required
by statute to initiate its termination suit pursuant to section 161.003 rather
than section 161.001.  2007 WL 174351, at *7 (noting that the mother cited no
authority, and that this court had found none, to support her contention that
termination must be brought exclusively under section 161.003 any time the
parent at issue suffers from a mental deficiency).
5.  Public Policy of the Family Code
One of the family code’s overarching policies is to
determine and protect the child’s best interest.  See, e.g., Tex. Fam.
Code Ann. § 263.307 (West 2008) (“Factors in Determining Best Interest of
Child”); see also In re A.S.M., 172 S.W.3d 710, 715 (Tex. App.—Fort
Worth 2005, no pet.).  With regard to conservatorship, possession, and access, for
example, the family code states that Texas’s public policy is that “[t]he best
interest of the child shall always be the primary consideration of the court”
and to assure that children will have frequent and continuing contact with
parents “who have shown the ability to act in the best interest of the child”
and to provide “a safe, stable, and nonviolent environment for the child.”  See
Tex. Fam. Code Ann. §§ 153.001(a)(1)–(2), 153.002 (West 2008).
C.  Analysis
Based on the legislature’s omission of section
15.02(b)[19]
when it codified section 161.001 and its omission of “only” in section
15.025(a) when it codified section 161.004, the interpretation of chapter 161 in
the case law, and the overarching emphasis on the child’s best interest
interwoven throughout the family code, we cannot agree with Mother’s contention
that the only way the trial court could terminate her parental rights
here was under section 161.004.  Compare Act of May 27, 1993, 73rd Leg.,
R.S., ch. 597, § 1, 1993 Tex. Gen. Laws 2254, 2255 (repealed 1995), with Tex.
Fam. Code Ann. § 161.001; see e.g., D.R., 2007 WL 174351,
at *7 (noting that Texas case law supports contention that parental rights could
be terminated under either section 161.001 or section 161.003).
Rather, using section 161.004 is the only way that the
trial court could terminate her parental rights based upon “evidence presented
at” the hearing before the trial court issued its December 17, 2008 denial of
the first petition to terminate.  See Tex. Fam. Code Ann. § 161.004(b).  Therefore,
while the trial court erred by admitting evidence from before the December 17,
2008 denial of DFPS’s first petition when DFPS did not plead section 161.004 as
a ground to terminate Mother’s parental rights, the error was harmless because
DFPS pleaded constructive abandonment under section 161.001(1)(N), the trial
court ordered the termination under section 161.001(1)(N) and (O), and, as
discussed below, the evidence of constructive abandonment occurring after the
dismissal order was sufficient to support termination under section 161.001(1)(N).
 See E.M.N., 221 S.W.3d at 821.  We overrule Mother’s first and second
issues.
D.  Constructive Abandonment
In her fifth, sixth, and seventh issues, Mother
complains that termination of her parental rights under section 161.001(1)(N)
cannot be upheld because DFPS failed to make a reasonable effort to return K.G.
to her and because DFPS failed to provide legally and factually sufficient
evidence to establish that Mother was unable to provide K.G. with a safe
environment or that she had failed to regularly visit or maintain significant
contact with K.G.  Mother does not challenge the trial court’s best interest
finding.
1.  Standard of Review
Termination
decisions must be supported by clear and convincing evidence.  Tex. Fam. Code
Ann. §§ 161.001, 161.206(a).  Evidence is clear and convincing if it “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.”  Id. § 101.007
(West 2008).  Due process demands this heightened standard because termination
results in permanent, irrevocable changes for the parent and child.  In re
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
In
evaluating the evidence for legal sufficiency in parental termination cases, we
determine whether the evidence is such that a factfinder could reasonably form
a firm belief or conviction that the grounds for termination were proven.  In
re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).  We review all the evidence in
the light most favorable to the finding and judgment.  Id.  We resolve
any disputed facts in favor of the finding if a reasonable factfinder could
have done so.  Id.  We disregard all evidence that a reasonable
factfinder could have disbelieved.  Id.  We consider undisputed evidence
even if it is contrary to the finding.  Id.  That is, we consider
evidence favorable to termination if a reasonable factfinder could, and we disregard
contrary evidence unless a reasonable factfinder could not.  Id.            We
cannot weigh witness credibility issues that depend on the appearance and
demeanor of the witnesses, for that is the factfinder’s province.  Id. at
573, 574.  And even when credibility issues appear in the appellate record, we
defer to the factfinder’s determinations as long as they are not
unreasonable.  Id. at 573.
In
reviewing the evidence for factual sufficiency, we give due deference to the
factfinder’s findings and do not supplant the verdict with our own.  In
re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).  We determine whether, on the
entire record, a factfinder could reasonably form a firm conviction or belief
that the parent violated subsection (N) of section 161.001(1).  Tex. Fam. Code
Ann. § 161.001(1)(N); C.H., 89 S.W.3d at 28.  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 in the truth of its
finding, then the evidence is factually insufficient.  H.R.M., 209
S.W.3d at 108.
2.  Applicable Law
A parent constructively abandons a child when (1) the
child has been in the permanent or temporary managing conservatorship of the
State or an authorized agency for not less than six months,[20]
(2) the State or the authorized agency has made reasonable efforts to return
the child to the parent, (3) the parent has not regularly visited or maintained
significant contact with the child, and (4) the parent has demonstrated an
inability to provide the child with a safe environment.  Tex. Fam. Code Ann. §
161.001(1)(N); In re M.R.J.M., 280 S.W.3d 494, 505 (Tex. App.—Fort Worth
2009, no pet.) (op. on reh’g); In re A.S., 261 S.W.3d 76, 88–89 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied).  


 
a.  Reasonable Efforts
In her fifth issue, Mother complains that DFPS failed
to make reasonable efforts to return K.G. to her and that, despite DFPS’s
general statements about working on reunification, “the facts show that [DFPS’s]
permanency goal was termination in February[] 2009, and in May 2009, and the
termination suit was filed in June[] 2009.  Little if any evidence supports a
position that any serious attempt to reunify K.G. with [Mother] was ever
contemplated, much less put into action.”  She argues that performing the tasks
requested by DFPS was impossible before DFPS made the decision to seek termination
in May 2009.
The record reflects that DFPS’s first and second
petitions each contain the following language:  “If reunification with
the mother cannot be achieved, the Court should terminate the parent-child
relationship . . . .” [Emphasis added.] And despite the notation in K.G.’s May
2009 service plan about unrelated adoption as the long-range permanency goal
for K.G., the trial court could have reasonably formed a firm belief or
conviction that the “reasonable efforts” element was proven based on Moore’s
testimony that she had tried to facilitate K.G.
and Mother’s reunification by providing services to mitigate the circumstances
that had led to K.G.’s removal; that she had encouraged Mother to seek help for
her mental health problems; and that she had made additional efforts to make
sure that Mother and K.G. could have good visits.[21] 
Therefore, the trial court could have found that DFPS, through CPS, made
reasonable efforts to return K.G. to Mother.  See In re K.M.B., 91
S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.) (stating that the State
showed that it made reasonable efforts to return the child to the parent when
it prepared service plans and made efforts to work with the parent on the
service plans); see also M.R.J.M., 280 S.W.3d at 505 (holding that the
State made reasonable efforts under section 161.001(1)(N) when it prepared
several service plans for the parent and made special arrangements for him to
attend parenting classes near his home and to transport him to his
psychological assessment).
b.  Safe Environment 
In her sixth issue, Mother contends that DFPS provided
“little more than conclusory statements regarding [Mother’s] housing and
ability to provide a safe environment” and that the record is “100% bare of any
showing that any harm has ever happened to K.G. while she was in [Mother’s]
care.”
The record also reflects that one of Mother’s other
children was born with marijuana—Mother’s drug of choice since at least age
seventeen—in her system; that Mother had schizoaffective disorder, bipolar
type; and that Mother had not been treated for her mental health issues and
instead denied that she needed medication, stating that she had been “counting
to calm [her] nerves.”  Mother had also not established a residence for K.G. by
the 2010 trial; instead, she “drifted” from place to place, staying with
various family and friends, and dropped out of touch with CPS for several
months.  Therefore, the trial court could have chosen to believe that Mother’s
housing instability and her failure to alter her pattern of behavior and take
steps to treat her mental health issues demonstrated an inability to provide
K.G. with a safe environment.  See, e.g., In re T.M., No.
02-09-00145-CV, 2009 WL 5184018, at *5 (Tex. App.—Fort Worth Dec. 31, 2009,
pet. denied) (mem. op.) (“[T]he evidence establishes Father’s inability to
provide the children with any environment . . . much less a safe
environment.”); M.C. v. Tex. Dep’t of Fam. & Protective Servs., 300
S.W.3d 305, 310 (Tex. App.—El Paso 2009, pet. denied) (holding that evidence
was sufficient to show that mother could not provide child with a safe
environment when mother, among other things, had no permanent housing, was diagnosed
with bipolar disorder and depression, had anger management issues, and did not
seek treatment from MHMR).
c.  Regular Visits or
Significant Contact
In her seventh issue, Mother argues that the evidence
is legally and factually insufficient to show that she did not regularly visit
or maintain significant contact with K.G., stating that “the recent failure to
maintain contact is logically explained by the timing of her receipt of the
termination petition rather than a lack of desire to maintain contact.”
The record shows that on January 6, 2010, Mother
waived service of the second petition, which was filed in June 2009.  However,
Mother stopped attending visits with K.G. long before January 2010; she
attended one visit in September 2009 before dropping out of contact with CPS
until December 2009. And between February 2010 and the trial in May 2010,
Mother did not attend any visits with K.G.  Moore testified that Mother told
her that she had been unable to attend visits between February and May because
of her work schedule and community service, but Mother did not accept Moore’s
offer for an alternative visitation schedule.  Therefore, the trial court could
have reasonably found that Mother failed to regularly visit or maintain
significant contact with K.G.  See In re J.J.O., 131 S.W.3d 618, 628–29
(Tex. App.—Fort Worth 2004, no pet.) (holding the evidence legally and
factually sufficient to support finding that mother had not regularly visited
or maintained significant contact with the child when mother made only twelve
visits during a nine-month period); see also M.C., 300 S.W.3d at 310
(holding that mother did not regularly visit or maintain significant contact
with the child when she visited only six to eight times in a twelve-month
period).
d.  Conclusion
Based on our review above, we determine that the trial
court could have formed a firm belief or conviction that each of the elements
under section 161.001(1)(N) were proven.[22] 
Therefore, we hold that the evidence is legally and factually sufficient to
support termination of Mother’s parental rights on the ground of constructive
abandonment, and we overrule Mother’s fifth, sixth, and seventh issues.  See
Tex. Fam. Code Ann. § 161.001(1)(N); H.R.M., 209 S.W.3d at
108; J.P.B., 180 S.W.3d at 573; see also In re P.R., 994 S.W.2d
411, 416 (Tex. App.—Fort Worth 1999, pet. dism’d w.o.j.) (holding the evidence
sufficient to support constructive abandonment finding when, among other
things, Mother routinely missed or skipped counseling sessions, attended only
two anger management classes, lived in thirteen to seventeen different
locations, and failed to regularly visit or maintain significant contact with
her child), disapproved of on other grounds by J.F.C., 96 S.W.3d at 267. 
Based on our disposition here, we need not address Mother’s remaining issues
under section 161.001(1)(O).  See Tex. R. App. P. 47.1.; J.L.,
163 S.W.3d at 84.
IV.  Conclusion
          Having overruled Mother’s dispositive
issues, we affirm the trial court’s judgment.
 
                                                                             BOB
MCCOY
                                                                             JUSTICE
 
PANEL:  WALKER, MCCOY, and MEIER, JJ.         
 
DELIVERED:  July 28, 2011




[1]We
use aliases to protect the identities of the child and her foster families.  See
Tex. R. App. P. 9.8. 


[2]DFPS
alleged the following grounds for termination in its first petition:  endangerment,
execution of an unrevoked or irrevocable affidavit of relinquishment of
parental rights, prior termination of parental rights to another child based on
endangerment, and constructive abandonment.  See Tex. Fam. Code Ann. §
161.001(1)(D), (E), (K), (M), (N) (West 2008).


[3]Father’s
parental rights to K.G. were also terminated, but he does not appeal.


[4]CPS
lost contact with Mother from July 2007 to December 2007.


[5]Mother’s
other two children had been voluntarily placed with fictive kin—the same ones
K.G. was living with at the time.  By December 12, 2007, the CPS case involving
the other children had been closed.


[6]Mother’s
February 2008 service plan required her to submit to random drug tests at CPS’s
request, participate in individual counseling and anger management classes,
complete a drug assessment, participate in supervised visits with K.G., and
participate in parenting classes.  Mother completed her drug assessment in
2008.


[7]K.G.’s
therapist testified that she met K.G. in November 2008.  K.G. was acting out in
school with suicidal and homicidal thoughts and ideations because of trouble
coping with the separation from her family.  She worked with K.G. for around
thirteen months ending in December 2009.  By December 2009, prior to her
pre-adoptive placement, K.G. “had reached a point to where she knew what she
wanted and she knew how to move forward.”  By April 2009, K.G. had decided that
she wanted to be adopted.


[8]Mother
told Moore in 2009 that she went to John Peter Smith hospital once but left
without being seen because the wait was very long.


[9]Mother
told Moore that she had not been attending visits because of her schedule with
her job and her community service.  Mother did not take advantage of Moore’s
offer to schedule visits after Mother finished work, and Mother was either
unable or unwilling to make other arrangements for the visits.


[10]Moore
said that this was similar to Mother’s previous cases “when she would disappear
for months on end.”


[11]Mother
had provided Moore with over twenty-five phone numbers during the last year and
a half before the 2010 trial, and she occasionally gave Moore other people’s
phone numbers when she did not have a phone.


[12]Moore
testified that Mother would curse her out one week and then two weeks later be
very friendly.  With regard to Mother’s behavior and attitude during the
pendency of the CPS case, Moore stated, “Well, she just called me a bitch, she’s
been very, very rude, very unprofessional, in my opinion; did not exhibit behaviors
of someone who wants her child back. . . .  Cursing, storming out of the
courtroom, being very disrespectful to the professionals in this building.”


[13]Moore
stated that home studies were not conducted on the two placements Mother
suggested because one of the possible guardians had criminal history as recent
as 2009 and the other had multiple children in the home already and the CPS
worker for that home had recommended no placement.


[14]Former
section 15.05(c) is now codified as section 161.205, entitled “Order Denying
Termination.”  See Tex. Fam. Code Ann. § 161.205 (West 2008).


[15]That
is, section 15.025(a) stated that the court may grant a petition to terminate
after the prior denial of a petition to terminate “only if: (1) the
petition under this section is filed after the date the order or decree under
Section 15.05(c) of this code is entered; and (2) the court makes a finding
under Subsection (b) or (c) of this section.”  See Act of May 27, 1993,
73rd Leg., R.S., ch. 597, § 2, 1993 Tex. Gen. Laws 2254, 2255 (amended and
recodified 1995) (emphasis added).


[16]We
have previously stated that section 161.004 allows a trial court to terminate
the parent-child relationship after rendition of an order that previously
denied termination of the parent-child relationship only if section 161.004’s
elements are met.  J.H., 2004 WL 2630225, at *12.  However, we made this
statement in the context of addressing whether res judicata applied and whether
DFPS satisfied section 161.004’s requirements—the basis for its petition to
terminate in that case—and not in discussing whether section 161.001 could also
apply.  See id. at *12–13.
 


[17]In
A.L., the appellant did not argue that the evidence was insufficient
under section 161.004 or that the trial court erred by failing to make a
specific finding that the circumstances had substantially changed.  Therefore, the
court did “not address the sufficiency of any possible [section] 161.004
requirements as to this case,” and it found that the evidence was sufficient to
support terminating the appellant’s parental rights under section
161.001(1)(Q).  A.L., 2002 WL 34230855, at *5 n.8, 6. 


[18]Much
of the sparse case law pertaining to section 161.004 illustrates a split on
whether the trial court’s prior order has to be final before section 161.004
can be used.   Compare In re A.A.R., No. 04-08-00870, 2009 WL 1081025,
at *1 (Tex. App.—San Antonio Apr. 22, 2009, no pet.) (mem. op.) (holding that
section 161.004 did not apply when the trial court’s earlier order did not deny
termination), Thompson v. Tex. Dep’t of Fam. & Protective Servs.,
176 S.W.3d 121, 125–28 (Tex. App.—Houston [1st Dist.] 2004, pet. denied)
(applying section 161.004 when trial court had previously denied termination), overruled
on other grounds, Cervantes-Peterson v. Tex. Dep’t of Fam. & Protective
Servs., 221 S.W.3d 244 (Tex. App.—Houston [1st Dist.] 2006, no pet.), and
T.V., 27 S.W.3d at 624 & n.1 (holding that section 161.004 did not
apply because there was no final appealable order denying termination), with
In re M.F., No. 11-08-00276-CV, 2010 WL 1948625, at *1–2, 4 (Tex.
App.—Eastland May 13, 2010, no pet.) (mem. op.) (using section 161.004 to conclude
that the trial court could consider evidence of conduct prior to the agreed
final order even though it was not a previous order denying termination and
upholding termination on endangerment grounds); T.V., 27 S.W.3d at 624–25
(Vance, J., concurring) (disagreeing that section 161.004 applied only to
final, appealable judgments).


[19]Section
15.02(b), as stated above, required that termination after a prior order
denying termination “may be granted only as provided by Section 15.025.”


[20]Mother
does not dispute that K.G. has been in foster care, under DFPS’s
conservatorship, for significantly longer than six months.  See Tex.
Fam. Code Ann. § 161.001(1)(N). 


[21]Additionally,
Mother had from May 2009 until trial in May 2010 to make her own reasonable
efforts at showing the trial court that she wanted K.G. back in her life by
working the services provided by CPS and remaining in contact with CPS.  K.G.
summarized her feelings about this in her in camera testimony, pointing out
that all Mother had to do was take some classes again and stating, “but she
didn’t, so I feel like she really doesn’t care.”


[22]That
is, despite Moore’s admission that, as of May 2009, Mother had not
constructively abandoned K.G., by the time of the trial in May 2010, as set
forth above, there was sufficient evidence to support the trial court’s constructive
abandonment finding.


