Opinion filed January 16, 2014




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-13-00223-CV
                                     __________

      IN THE INTEREST OF J.C.H. A/K/A J.C.E. AND E.C.H.,
                       CHILDREN


                     On Appeal from the 29th District Court
                             Palo Pinto County, Texas
                           Trial Court Cause No. C44623


                      MEMORANDUM OPINION
      The trial court entered an order terminating the parental rights of the mother
and the fathers of J.C.H. a/k/a J.C.E. and E.C.H. The mother appeals. We affirm.
      In her sole issue on appeal, the mother asserts that the evidence is legally
and factually insufficient to support the termination of her parental rights. The
mother specifically challenges the findings that she knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that
endangered their physical or emotional well-being, that she engaged in conduct or
knowingly placed the children with persons who engaged in conduct that
endangered the children’s physical or emotional well-being, and that she failed to
comply with the provisions of a court order. The mother does not challenge the
best interest finding.
      The termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2013). To
determine on appeal if the evidence is legally sufficient in a parental termination
case, we review all of the evidence in the light most favorable to the finding and
determine whether a rational trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005). To determine if the evidence is factually sufficient, we give due deference
to the finding and determine whether, on the entire record, a factfinder could
reasonably form a firm belief or conviction about the truth of the allegations
against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). To terminate
parental rights, it must be shown by clear and convincing evidence that the parent
has committed one of the acts listed in Section 161.001(1)(A)–(T) and that
termination is in the best interest of the child. FAM. § 161.001. In this case, the
trial court found that the mother committed three of the acts listed in Section
161.001(1): that the mother knowingly placed or knowingly allowed the children
to remain in conditions or surroundings that endangered the physical or emotional
well-being of the children; that she engaged in conduct or knowingly placed the
children with persons who engaged in conduct that endangered the physical or
emotional well-being of the children; and that she failed to comply with the
provisions of a court order that specifically established the actions necessary for
her to obtain the return of the children, who had been in the care of the Department
of Family and Protective Services for not less than nine months as a result of
removal from the parent for abuse or neglect. See FAM. § 161.001(1)(D), (E), (O).
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The trial court also found that termination was in the children’s best interest. See
FAM. § 161.001(2).
      At the time of the final hearing on termination, J.C.H. a/k/a J.C.E. was five
years old, and E.C.H. had just turned four.       The Department of Family and
Protective Services had initially removed the children from their mother’s care in
February 2012 for neglectful supervision. At that time, the mother was using
drugs: opiates and amphetamines.      The Department’s conservatorship worker,
Donna Massey, testified at the termination hearing that the Department prepared a
family service plan for the mother.       According to Massey, the mother did
everything she was required to do to comply with the family service plan except
fulfill her substance abuse counseling program, which was a one-year rehab
program.    She attended the program for only ten months.          The mother was
informed that she had to complete the program, and the mother agreed to do so.
The record shows that, while under the family service plan, the mother passed all
of her drug tests.
      At the termination hearing, the Department relied upon the mother’s failure
to comply with the court-ordered service plan as grounds for termination. The
Department put on little to no evidence to support termination on the grounds that
the mother knowingly placed or knowingly allowed the children to remain in
endangering conditions or surroundings or that she engaged in conduct or
knowingly placed the children with persons who engaged in conduct that
endangered the physical or emotional well-being of the children.
      The mother argues on appeal that she completed and complied with all but
one of the requirements of the court-ordered service plan and that her parental
rights should not be terminated for failing to complete a small part of one
requirement. The mother asserts, “But, upon review of this record in its entirety,
termination certainly appears to be a Draconian measure.”
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      While we agree that the mother may have substantially complied with the
family service plan, the legislature did not provide for substantial compliance in
Section 161.001(1)(O) of the Family Code. Therefore, substantial compliance is
not enough to avoid termination under Section 161.001(1)(O). See In re D.D.,
No. 10-13-00223-CV, 2013 WL 6923980, at *2 (Tex. App.—Waco Dec. 27, 2013,
no pet. h.) (mem. op.); In re I.G., 383 S.W.3d 763, 771 (Tex. App.—Amarillo
2012, no pet.); In re T.T., 228 S.W.3d 312, 319–20 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied). As this court has previously stated with respect to
Section 161.001(1)(O):
      It does not quantify any particular number of provisions of the family
      service plan that a parent must not achieve in order for the parental
      rights to be terminated or the degree of a parent’s conduct that will be
      deemed to be a failure to achieve a particular requirement of the plan.
      The provision also does not encompass an evaluation of a parent’s
      partial achievement of plan requirements to determine whether or not
      the parent failed to comply with the plan.             Lastly, Section
      161.001(1)(O) does not “make a provision for excuses” for the
      parent’s failure to comply with the family service plan.
In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.).
      The undisputed evidence in this case showed that the mother failed to
complete the rehab program as required. Thus, we must hold that the Department
produced clear and convincing evidence from which the trial court could
reasonably have formed a firm belief that the mother failed to comply with the
provisions of her family service plan as ordered by the trial court. The evidence
also showed that the children had been in the Department’s care for at least nine
months and that the children had been removed from their mother due to abuse or
neglect as required by Section 161.001(1)(O).          We hold, therefore, that the
evidence is legally and factually sufficient to support the trial court’s finding under
Section 161.001(1)(O). The mother’s sole issue on appeal is overruled.


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      We affirm the trial court’s order of termination.




                                                    JOHN M. BAILEY
                                                    JUSTICE


January 16, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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