                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                   NO. 02-12-00444-CV


In the Interest of A.H., A Child            §    From the 323rd District Court

                                            §    of Tarrant County (323-95486J-11)

                                            §    March 21, 2013

                                            §    Opinion by Chief Justice Livingston


                                     JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s order of termination. It is ordered that the

order of termination of the trial court is affirmed.


                                        SECOND DISTRICT COURT OF APPEALS



                                        By_________________________________
                                          Chief Justice Terrie Livingston
                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00444-CV


IN THE INTEREST OF A.H., A
CHILD


                                        ----------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                        ----------

                          MEMORANDUM OPINION1

                                        ----------

      In this termination appeal, A.H.’s father, P.H. (Father), contends that the

evidence is legally and factually insufficient to support the trial court’s findings

supporting termination grounds under section 161.001(1) and 161.002 of the

family code.     A.H.’s mother, C.R. (Mother), contends that the evidence is

factually insufficient to support the trial court’s best interest finding. We affirm.




      1
       See Tex. R. App. P. 47.4.


                                            2
                                 Father’s Appeal

      The trial court found that Father (1) “knowingly placed or knowingly

allowed the child to remain in conditions or surroundings which endanger the

physical or emotional well-being of the child;” (2) “engaged in conduct or

knowingly placed the child with persons who engaged in conduct which

endangers the physical or emotional well-being of the child;” and (3)

“constructively   abandoned    the   child.”2    See    Tex.   Fam.    Code    Ann.

§ 161.001(1)(D), (E), (N) (West Supp. 2012). We need only find the evidence

sufficient on one of these grounds to support the trial court’s termination order as

to Father.   In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re E.M.N., 221

S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.).

      To prove the constructive abandonment ground, the Department of Family

and Protective Services had to show that Father

      constructively abandoned the child who ha[d] been in the permanent
      or temporary managing conservatorship of the Department . . . for
      not less than six months, and:

      (i) the [D]epartment . . . ha[d] made reasonable efforts to return the
      child to [Father];



      2
       Based on the trial court’s specific findings in the termination order, we
cannot discern Father’s following argument: “In this case, the trial court found by
clear and convincing evidence that [P.H.] violated Section 161.001(1)(D), (E),
and (N). It did not[,] however, find that P.H. committed any act enumerated in
161.001(1).” A finding that a parent has violated these specific sections is a
finding that the parent committed acts enumerated in section 161.001(1). We
therefore overrule Father’s alternative issue.


                                         2
      (ii) [Father] ha[d] not regularly visited or maintained significant
      contact with the child; and

      (iii) [Father] ha[d] demonstrated an inability to provide the child with
      a safe environment[.]

See Tex. Fam. Code Ann. § 161.001(1)(N).

      Father and Mother were both incarcerated when A.H. was born in October

2011, which is when the Department removed A.H. from Mother.3                    A.H.’s

caseworker testified that she prepared a service plan for Father in November

2011 and that she mailed it to him in jail. At that time, the caseworker noted in a

status report to the court that visitation with Father and Mother was not possible

because of their incarceration but that the Department would attempt to arrange

visitation with A.H.’s older sibling, who had been adopted by another family. The

caseworker also sent a letter at the same time with her contact information.

Father never contacted her.

      Father was released from jail in February 2012. The caseworker tried

contacting him again, but she could not find him, and he did not contact her.

Father was reincarcerated in May 2012 after committing a different criminal

offense; he had not contacted the caseworker at all while he was out of jail. The

caseworker testified that had Father contacted her, she would have set up a

meeting with him to go over his service plan and set up visitation with A.H. In

contrast, Father had written to a Department investigator in October 2011 asking


      3
       A.H. was removed from the hospital where Mother delivered him.


                                         3
about the status of the case and indicating he would seek custody of A.H. upon

his release from jail.

      A family service plan evaluation filed with the court in August 2012 noted

the following concerns with Father “as of 7/25/2012”:

   1) Father had never met A.H.;

   2) Father was in jail;

   3) Father had not demonstrated that he was willing to meet A.H.’s needs;

   4) Father had an extensive criminal history;

   5) The Department had not had any contact with Father and it appeared that

      he was “unwilling to work services towards family reunification”; and

   6) Father did not appear to be willing to put A.H.’s needs ahead of his own.

The Department further noted that

   1) The caseworker had no contact with Father throughout the case;

   2) Father could not meet A.H.’s needs while in jail;

   3) Father had not contacted the caseworker to begin services nor had he

      begun any services to be reunited with A.H.;

   4) Father had not demonstrated any parenting skills;

   5) Father had not provided any employment or housing information to the

      caseworker or Department; and

   6) Father would not be released from jail until later in 2012.

      The caseworker testified that she attempted to place A.H. with his maternal

grandmother and Mother’s brother, as well as “a fictive kin family member” of


                                         4
Mother’s but that none of those placements were suitable. A.H.’s brother had

been adopted but that family was unwilling to take A.H. A.H. had been in foster

care since he was born.

      The caseworker admitted on cross-examination that she probably should

have visited Father in jail, but she also believed her attempts to contact him had

been reasonable.

      Father testified that the last time he used methamphetamine was in

April 2012 while he was out of jail. Father admitted that he had at least seven

convictions. He also admitted committing a new theft in March 2012, for which

he was incarcerated at the time of trial. He further admitted that he had never

seen A.H.

      Father said he could not call anyone outside of jail but that he could send a

letter. He also said he was in a drug program at jail and was trying to get help

with his drug problem. He said he would probably live with his mother in Fort

Worth when he was released, which he expected to be October 22, 2012. He

admitted getting letters from CPS while he was in jail, but he said he did not

understand what he needed to do and would have done things differently if he

had received clearer advice. But he also said there was not any reason he failed

to contact CPS. Father also admitted that he had received the service plan and

read it but that he did not contact anyone upon his release from jail in February

2012 to try to regain custody of his son. When asked why, he said he had no




                                        5
answer.   He agreed that his frequent incarceration had prevented him from

parenting his children.

      Father contends that the evidence is insufficient to support the constructive

abandonment ground because this ground does not apply to incarcerated

parents; his argument is that “the Department does not make ‘reasonable efforts

to return’ children to parents when they are in jail.” Thus, according to Father,

incarceration of a parent precludes termination on this ground.

      While imprisonment, standing alone, does not constitute constructive

abandonment, In re D.T., 34 S.W.3d 625, 633 (Tex. App.––Fort Worth 2000, pet.

denied) (op. on reh’g), we agree with the Amarillo Court of Appeals’s reasoning

below:

      [W]e disagree with the proposition that § 161.001(1)(N) “was never
      intended to apply to someone” in prison merely because the parent
      is in prison. . . .      Returning the child to the parent, per
      § 161.001(1)(N)(i), does not necessarily mean that the child has to
      be physically delivered to the incarcerated individual. Not every
      person in prison has his or her child taken away by the State. Nor is
      every person in prison unable to provide the child a good
      environment. Indeed, it is quite conceivable that one in prison may
      still be able to do so by, at the very least, leaving the ward in the
      capable hands of a relative, friend or spouse. If such could be done,
      then it is conceivable that the State has the ability to relinquish its
      custody over the youth and, thereby, effectively return the child to
      the incarcerated parent. At the very least, we cannot say that
      incarceration renders that possibility impossible.

In re D.S.A., 113 S.W.3d 567, 573–74 (Tex. App.––Amarillo 2003, no pet.)

(citations omitted). Accordingly, we conclude and hold that subsection N can be

applied to incarcerated parents.



                                        6
      Father also contends that the evidence is insufficient to show that the

Department made reasonable efforts in this case.

      The CPS investigator who took the referral when A.H. was born stated that

Mother initially asked for A.H. to be placed with her brother. The investigator had

information that Mother’s brother might be living with Mother’s mother, who had a

history of drug use. The investigator therefore decided to review other possible

family placements. Mother told the investigator that Father’s family had CPS

history and drug history, so the investigator did not look further into Father’s

family. She did not do any independent research. The investigator attempted to

contact the paternal grandmother of Mother’s oldest son4 three times and

Mother’s grandmother once,5 but she could not reach either one.               The

investigator sent a letter to Father in jail about the emergency removal and then

turned the case over to a different investigator.

      The caseworker confirmed the investigator’s testimony.             She had

attempted to place A.H. with Mother’s brother, but when she explained he could

not have contact with his and Mother’s mother (who had tested positive for

methamphetamines) and that Mother’s mother would not be allowed to help him

out with A.H., he told the caseworker he wanted to think about it but did not

      4
       A.H. is Mother’s fourth child. Her oldest two children, a boy and girl, live
with the boy’s paternal grandmother and are not related to Father. Mother’s and
Father’s rights to Mother’s third child have been terminated, and he has been
adopted.
      5
       The phone number was disconnected.


                                          7
follow up. The paternal uncle of Mother’s oldest son, L.C., and his wife came

forward as potential placements, but CPS ruled them out because they did not

have a significant relationship with A.H. or Mother. The Department had also

approached the adoptive parents of A.H.’s brother, but they were not interested

in taking on another child. The caseworker, like the investigator, did not perform

an independent investigation of Father’s family.

      The service plan sent to Father in November states that no family provided

has been able to pass the background or CPS history checks.

      This court has held that the Department’s “preparation and administration

of a service plan for the parent constitutes evidence that the [Department] made

reasonable efforts to return the child to the parent.” In re M.R.J.M., 280 S.W.3d

494, 505 (Tex. App.––Fort Worth 2009, no pet.) (op. on reh’g); see M.C. v. Tex.

Dep’t of Family & Protective Servs., 300 S.W.3d 305, 309–10 (Tex. App.––El

Paso 2009, pet. denied).       “[T]he issue is whether the Department made

‘reasonable efforts’ not ideal efforts.” In re M.V.G., No. 10-09-00054-CV, 2010

WL 730366, at *5 (Tex. App.––Waco Mar. 3, 2010, no pet.).

      Father admitted he received the service plan A.H.’s caseworker prepared,

and a file-stamped copy of the service plan is included in the clerk’s record.

Although it is possible a more thorough attempt to contact Father’s family might

have uncovered other potential placements for further investigation, we note that

Father had the opportunity to provide potential family placements to the

Department and did not do so. In light of the prior termination of A.H.’s brother,


                                        8
also Father’s child, and the record as a whole, we conclude and hold that the

Department proved the subsection N ground by clear and convincing evidence

and, thus, that the evidence is legally and factually sufficient on that ground.

See, e.g., M.V.G., 2010 WL 730366, at *5–6. We therefore overrule Father’s

primary issue.

                                 Mother’s Appeal

      In her sole issue, Mother contends that the evidence is factually insufficient

to support the trial court’s best interest finding because the record shows that the

placement opportunity with L.C., the paternal uncle of Mother’s oldest son, would

have ensured “frequent and ongoing contact with his siblings.”

      Mother admits that the evidence at trial showed that she was a long-time

methamphetamine user, used methamphetamines while pregnant with A.H.,

relapsed while out of jail during the pendency of this case, was not able to parent

A.H. because she was in the SAFP6 program at the time of trial and would not be

able to care for A.H. even after she was released, and had her rights to one of

her other children terminated. The evidence also showed that Mother’s mother,

with whom Mother planned to live upon her release, had also been a

methamphetamine user, although Mother testified that her mother had been

clean for almost a year before trial.


      6
       SAFP is a substance-abuse felony punishment facility within the Texas
Department of Criminal Justice. Rouse v. State, 300 S.W.3d 754, 758 n.6 (Tex.
Crim. App. 2009).


                                         9
      According to Mother, “there was clear and convincing evidence that [L.C.]

has frequent contact with A.H.’s siblings.” In support of this proposition, Mother

cites her own testimony that her older two children were living with L.C.’s mother

and that L.C. frequently visits his mother. But the record also contains testimony

from A.H.’s caseworker that L.C. had not seen Mother in years, that he did not

have a significant relationship with Mother’s family, that the Department turned

down the placement for that lack of relationship with Mother and A.H., and that

Mother was concerned about placing A.H. with L.C. because she was afraid she

would not be able to see A.H. or have access to him. For that reason, Mother did

not sign a form provided by the caseworker, which would have indicated that she

wanted the Department to consider L.C. further as a potential placement.

      Mother stated that she was initially concerned about A.H.’s being placed

with L.C.: “My oldest son’s grandmother doesn’t let me see my kid as much as I

want to, so I thought that maybe [L.C.] and his wife would be the same way she

was, not letting me see him as much as I wanted to.” She said that she did turn

in “[o]ne form” to the caseworker but that she remembered

      getting some forms to fill out, and I finally did meet with [L.C.] and his
      wife and we sat down and talked, and they were going to turn the
      forms back in to [the caseworker]. They were going to get some
      more information and turn the forms back in to [the caseworker], but
      I guess they never did.

According to Mother, she had decided about five to six months before trial that

she wanted A.H. placed with L.C. after meeting with him and his wife, but she did

not have an opportunity to tell the caseworker because she had to turn herself in


                                         10
for SAFP. When asked if she thought A.H. would have a good family life with

L.C., Mother answered, “Yes,” and when asked if there was any indication she

would get to visit A.H. if he was placed with L.C., she said, “Oh, yeah.”

       Mother claims this case is similar to Horvatich v. Texas Department of

Protective & Regulatory Services, 78 S.W.3d 594 (Tex. App.––Austin 2002, no

pet.). In that case, the court reversed for factual insufficiency because the record

was not yet fully developed as to the Department’s efforts to place the child with

a family member. Id. at 604. Most troubling to the court in that case was that

“the record contain[ed] no testimony regarding how the children were doing in

foster care, whether the children were being considered for adoption or the

likelihood of their being adopted, or any testimony from anyone who had

personal knowledge of the children at the time of trial.” Id. at 602. The child’s

caseworker had not been allowed to testify. Id. at 601–02.

       Here, however, the child’s caseworker and one of his foster parents

testified.   Both testified that A.H. was doing well in foster care, that he had

bonded with his foster parents, and that they wanted to adopt him. Thus, this

case is not factually similar enough to Horvatich for its reasoning to be

compelling.

       The Department presented evidence of stable future plans for A.H. in

contrast to Mother’s troubled past and very recent, but still unstable, participation




                                         11
in the SAFP program.7 The Department also presented evidence that A.H.’s

potential adoptive family was open to his visiting his siblings if possible. A.H.’s

foster mother testified that she had reached out to his adopted brother’s family to

facilitate visitation, but she had not heard back from them. She and her husband

were willing to allow visitation with A.H.’s biological family, however. Based on

the record before us, we conclude and hold that the evidence is factually

sufficient to support the trial court’s best interest finding. See Tex. Fam. Code

Ann. § 263.307(b) (West 2008); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976). Accordingly, we overrule Mother’s sole issue.

                                   Conclusion

      Having overruled Mother’s and Father’s issues, we affirm the trial court’s

order of termination.




                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: March 21, 2013




      7
      Mother had been in SAFP for about five to six months at the time of trial
and was in a twelve-step program, but was still on the first step––admitting she
was powerless over drugs.


                                        12
