AFFIRMED; Opinion Filed April 22, 2014.




                                               Court of Appeals
                                                                 S     In The


                                        Fifth District of Texas at Dallas
                                                            No. 05-13-01577-CV

             IN THE INTEREST OF J.A.S.C., J.A.L.C., N.D.C, AND G.S.C, CHILDREN

                                    On Appeal from the 301st Judicial District Court
                                                 Dallas County, Texas
                                        Trial Court Cause No. DF-12-08960-T

                                              MEMORANDUM OPINION
                                         Before Justices FitzGerald, Lang, and Fillmore
                                                    Opinion by Justice Lang
             This is an appeal from a decree, entered pursuant to a mediated settlement agreement

(MSA), terminating Father’s parental rights to his four children and appointing the Dallas

County Child Protective Services Unit of the Texas Department of Family and Protective

Services (CPS) as the children’s permanent managing conservator. 1 In two issues, Father asserts

the evidence is legally and factually insufficient to support the termination. We affirm.

                                                            I. BACKGROUND 2

             The children, J.A.S.C., J.A.L.C., N.D.C., and G.S.C., were removed from the home in

May 2012 after CPS received three referrals for physical neglect and negligent supervision. At


     1
         Mother’s parental rights were also terminated, but she is not a party to this appeal.
     2
         Because the decree was entered pursuant to an MSA, the evidentiary record is limited and consists only of the prove-up testimony of the
CPS caseworker and the children’s guardian ad litem. However, in addition to evidence presented at the hearing, the trial court could also take
judicial notice of its own records and prior pleadings in the case with or without a party’s request. See In re Estate of Clark, 198 S.W.3d 273, 275
(Tex. App,–-Dallas 2006, pet. denied). The trial court was well aware of the extended duration of this matter, as well as the pleadings and orders
in its file. Id. Moreover, in reciting the facts in their briefs, the parties rely on documents contained in the clerk’s record. Accordingly, we also
rely on them in providing the background of the case.
the time, J.A.S.C. was three years old, J.A.L.C., was two years old, N.D.C. was eighteen months

old, and G.S.C. was three months old. Father and Mother were provided a service plan and

ordered to complete parenting classes, individual counseling, and psychological evaluations.

Over the next several months, Father and Mother completed the parenting classes and

psychological evaluations and attended counseling. The children were gradually returned home

between February 2013 and March 2013, and for the next six months, CPS provided in-home

counseling and monitored the home. During this time, the parents were to (1) learn and apply

“realistic expectations for the age and developmental capabilities” of each child; (2) demonstrate

an ability to provide basic necessities for the children such as food, clothing, shelter, medical

care, and supervision; and (3) maintain safe housing.

          The children were again removed from the home in September 2013. The family had

recently moved, and a home visit by the CPS caseworker and the children’s guardian ad litem

revealed the apartment complex where the family was living was “run down,” “dirty,” and

“unsafe” with visible drug activity. The home visit also revealed a limited supply of food and

spoiled milk.

          At the trial court’s suggestion, the parties mediated the case. The mediation resulted in

an MSA which was signed by the parties, their counsel, and the guardian ad litem and which

provided that (a) the parents’ rights to the children would be terminated on “‘O’ grounds for

failure to fully complete court-ordered services and best interest,” 3 and (b) CPS would be

appointed managing conservator of the children. The MSA also provided in relevant part as

follows:

          THE FOLLOWING MEDIATED SETTLEMENT AGREEMENT IS NOT
          SUBJECT TO REVOCATION AND IS ENTERED INTO PURSUANT TO
          SECTION 153.0071 OF THE TEXAS FAMILY CODE.       THIS

   3
       See TEX. FAM. CODE ANN. § 161.001(1)(O), (2) (West 2014).



                                                                   –2–
       AGREEMENT IS SIGNED BY EACH PARTY TO THE AGREEMENT
       AND EACH PARTY’S ATTORNEY WHO IS PRESENT AT THE TIME
       THE AGREEMENT IS SIGNED.    A PARTY IS ENTITLED TO
       JUDGMENT ON THIS MEDIATED SETTLEMENT AGREEMENT
       NOTWITHSTANDING RULE 11, TEXAS RULES OF CIVIL
       PROCEDURE, OR ANOTHER RULE OF LAW.

       1.      All parties agree that this agreement, as forth herein below, is in the best
               interest of the children the subject of this suit, given the circumstances.

       ***

       4.      Each signatory to this settlement has entered into the settlement freely and
               without duress after having consulted with professionals of his or her
               choice.

       5.      This stipulation is signed voluntarily and with the advice and consent of
               counsel, if one was appointed or employed, on the dates set out below and
               subject to the court’s approval, and its provisions are intended to be
               incorporated into a final order.

       ***

       20.     THE PARTIES HERETO AGREE THAT THIS MEDIATED
               SETTLEMENT AGREEMENT IS BINDING ON SAID PARTIES
               AND THIS AGREEMENT IS NOT SUBJECT TO REVOCATION.

       The agreement was filed that same day with the court and proved-up the following day.

At the prove-up hearing, the CPS caseworker testified that Father and Mother agreed to

termination based on the “O” ground and that she believed termination of the Father’s and

Mother’s parental rights was in the children’s best interest. She explained both parents had a

history of “being evicted,” a “chronic pattern of neglect, physical and medical,” and a “chronic

history of not providing . . . adequate nutrition for the children.” She also testified that three of

the four children were diagnosed as having “failure to thrive” when they were removed from the

home in 2012. Asked about the removal of the children from the home in September 2013, she

stated she found no adequate food for the children, the parents had again been evicted, and the

apartments where they lived were subsequently condemned.



                                                –3–
        Corroborating the caseworker’s testimony regarding the removal of the children in

September 2013, the children’s guardian ad litem also testified that the parents had “no physical

or psychological reason” preventing them from working and providing for the children. He

agreed with the caseworker that termination of the parents’ rights and appointment of CPS as the

children’s managing conservator was in the children’s best interest.

        The trial court approved the MSA and entered a decree incorporating the terms of the

MSA.     Asserting generally that he “was coerced into signing [the MSA] by duress, coercion,

intimidation, and threats” and did not believe termination of his rights was in the children’s best

interest, Father subsequently filed a motion for new trial. The motion was not set for hearing and

was overruled by operation of law.

                           II. SUFFICIENCY OF THE EVIDENCE

        Father’s contention, in his two issues, is that the evidence is legally and factually

insufficient to support the termination. He asserts that the undisputed evidence showed he

completed all required services, and the return of the children to him in February and March

2013 demonstrated improvements in his parenting skills and children’s physical well-being. He

further asserts the termination was based improperly on his financial problems and difficulty

finding stable housing, and that he felt pressure and was under “great duress” when he signed the

MSA. In response, CPS argues that the MSA was binding and the trial court was required to

follow it.

                                        A. Applicable Law

                               1. Mediated Settlement Agreements

        Texas has a policy of encouraging “the peaceable resolution of disputes” particularly in

disputes involving the parent-child relationship. In re Lee, 411 S.W.3d 445, 448 (Tex. 2013)

(quoting TEX. CIVIL PRAC. & REM. CODE ANN. § 154.002 (West 2011)). In furtherance of that

                                               –4–
policy, a trial court may refer a suit affecting the parent-child relationship to mediation and, if an

MSA is reached, must enter a judgment on the MSA without inquiry into whether the MSA is in

the best interest of a child. See TEX. FAM. CODE ANN. § 153.0071(c) (West 2014); Lee, 411

S.W.3d at 447.

       Under section 153.0071 of the Texas Family Code, an MSA “is binding on the parties” if

the agreement:

       (1) provides, in a prominently displayed statement that is in boldfaced type or
       capital letters or underlined, that the agreement is not subject to revocation;

       (2) is signed by each party to the agreement; and

       (3) is signed by the party’s attorney, if any, who is present at the time the
       agreement is signed.

Id. § 153.0071(d), (e). A trial court may only decline to enter judgment on an MSA if it finds

that a party to the agreement was a victim of domestic violence, the violence impaired the party’s

ability to make decisions, and the MSA is not in the child’s best interest. Id. § 153.0071(e-1);

Lee, 411 S.W.3d at 452.

                                               2. Termination

       Parental rights may be terminated only if the court finds by clear and convincing

evidence that (1) the parent has committed an act prohibited by section 161.001(1) of the Texas

Family Code and (2) termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001

(West 2014). To terminate under section 161.001(1)(O), as the trial court did here, the court

must find the parent failed to comply with the provisions of a court order that specifically

established the actions the parent needed to take to obtain the return of a child who was removed

from the parent as a result of abuse or neglect and was in the permanent or temporary managing

conservatorship of CPS for at least nine months. See id. § 161.001(1)(O). Termination under

“O” does not allow for “consideration of excuses for noncompliance nor does it consider

                                                 –5–
‘substantial compliance’ to be the same as completion.” In re I.G., 383 S.W.3d 763, 771 (Tex.

App.-–Amarillo 2012, no pet.). To determine best interest, the court may consider the Holley

factors, 4 such as the parental abilities of the person seeking custody and the stability of the home;

statutory factors under section 263.307 of the family code, such as the willingness and ability of

the child’s family to effect positive environmental and personal changes within a reasonable

period of time; and any other relevant information. See In re J.J.C., 302 S.W.3d 436, 447-48

(Tex. App.-–Houston [14th Dist.] 2009, pet. denied).

                                                        B. Standard of Review

             Due to the severity and permanency of the termination of parental rights, an appellate

court applies a heightened standard in reviewing the sufficiency of the evidence to support a

termination. See In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re S.L., 188 S.W.3d 388

(Tex. App.-–Dallas 2006, no pet.). The question the appellate court must answer is whether the

proof is such that a reasonable fact finder could have formed a firm belief or conviction about the

truth of the allegations. See In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). In reviewing the

legal sufficiency of the evidence, the court considers all the evidence in the light most favorable

to the finding. Id. at 266. In conducting this review, the court assumes the fact finder resolved

disputed facts in favor of the finding if a reasonable fact finder could do so and disregards all

evidence that a reasonable fact finder could have disbelieved or found to have been incredible.

Id.       In reviewing the factual sufficiency of the evidence, the court considers disputed and

conflicting evidence and will conclude the evidence is insufficient only if, in light of the entire

record, it determines the disputed evidence is so significant that a reasonable fact finder could

not have resolved that disputed evidence in favor of its finding. Id.



      4
          See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).



                                                                     –6–
                                  C. Application of Law to Facts

       In arguing the evidence is legally and factually insufficient to support the termination,

Father does not dispute the children were removed due to neglect, the children were in the

temporary managing conservatorship of CPS for at least nine months, or the existence of a court

order specifying the actions necessary for the return of his children. See TEX. FAM. CODE ANN. §

161.001(1)(O). Nor does he dispute the MSA meets the statutory requirements of section

153.0071 or allege he is a victim of family violence. Id. § 153.0071(d), (e-1). His sole

complaint with respect to the MSA itself is that he signed it under pressure and “great duress,”

but nothing in the record supports that. See TEX. R. APP. P. 38.1(i). In fact, the MSA stipulates

that the parties entered into it freely, without duress, and with the advice and consent of counsel.

Because no allegation of family violence was made, the trial court was required to rule on the

MSA without a determination of whether it was in the children’s best interest, and Father was

bound by the terms of the MSA which provided that he failed to fully complete court-ordered

services and that termination of his rights were in the children’s best interest.        See id. §

153.0071(e); see also Lee, 411 S.W.3d at 447; I.G., 383 S.W.3d at 771 (concluding evidence

legally and factually sufficient to terminate under “O” where Father admitted he failed to fully

comply with provisions of court order that specified actions necessary for return of children).

       Moreover, other evidence also supports the termination. Although the evidence shows

the children were returned to Father after he completed parenting classes, submitted to a

psychological evaluation, and began attending counseling, the evidence also shows that just one

month prior to trial he was found not to have adequate food for the children and being evicted

from an apartment located in a complex that was subsequently condemned due to safety

concerns. This was consistent with the pattern of behavior he had shown prior to the return of his




                                                –7–
children and contrary to the requirement that he maintain safe housing and provide the children

basic necessities, such as food and shelter.

       We conclude, on this record and applying the proper standard of review, the trial court

could have reasonably formed a firm belief or conviction that Father failed to comply with the

requirements for the return of his children and that termination was in the children’s best interest.

See, e.g., In re A.M., 385 S.W.3d 74, 82-84 (Tex. App.-–Waco 2012, pet. denied) (concluding

evidence factually sufficient to support best interest prong even though Mother showed recent

improvements where evidence also showed, among other problems, that Mother had history of

neglecting and endangering the children, had unstable housing, and unstable employment); In re

J.S., 291 S.W.3d 60, 66 (Tex. App.-–Eastland 2009, no pet.) (concluding evidence legally and

factually sufficient to support termination on “O” grounds where evidence showed that, while

Mother complied with visitation, medication, and counseling requirements, she failed to achieve

goals of maintaining safe and appropriate housing and providing for her children’s needs). We

resolve Father’s two issues against him.

                                       III. CONCLUSION

       Having resolved Father’s two issues against him, we affirm the trial court’s judgment.




                                                      /Douglas S. Lang/
                                                      DOUGLAS S. LANG
131577F.P05                                           JUSTICE




                                                –8–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

IN THE INTEREST OF J.A.S.C., J.A.L.C.,             On Appeal from the 301st Judicial District
N.D.C, AND G.S.C, CHILDREN                         Court, Dallas County, Texas
                                                   Trial Court Cause No. DF-12-08960-T.
No. 05-13-01577-CV                                 Opinion delivered by Justice Lang. Justices
                                                   FitzGerald and Fillmore participating.



      In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s
judgment.


Judgment entered this 22nd day of April, 2014.




                                                   /Douglas S. Lang/
                                                   DOUGLAS S. LANG
                                                   JUSTICE




                                             –9–
