                                  Fourth Court of Appeals
                                           San Antonio, Texas
                                      MEMORANDUM OPINION

                                               No. 04-18-00585-CV

                    IN THE INTEREST OF D.D.R., N.R.R., AND A.R., Children

                       From the 45th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2017PA00986
                              Honorable Richard Garcia, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Irene Rios, Justice

Delivered and Filed: January 30, 2019

AFFIRMED

           Appellant Mother appeals the trial court’s order terminating her parental rights to her

children, Denise, Nancy, and Adam. 1                 Mother challenges the sufficiency of the evidence

supporting the trial court’s finding that termination was in the children’s best interest as well the

sufficiency of the evidence supporting the statutory predicate grounds for termination. We affirm

the trial court’s order.

                                                   BACKGROUND

           On May 9, 2017, the Texas Department of Family and Protective Services (“Department”)

filed a petition to terminate parental rights. In the supporting affidavit, Department caseworker


1
 To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to the parents
as “Mother” and “Father” and the children by aliases. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P.
9.8(b)(2). Although the trial court’s order terminates the parental rights of both parents, only Mother appeals.
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Darrest McCalister states the Department received a referral on May 4, 2017 alleging Mother

abandoned her children. McCalister explains in the affidavit that at the time of the referral, Adam

lived with his maternal uncle, Isidro, and both Denise and Nancy lived with their maternal

grandmother. On May 4, 2017, Isidro took Adam to school, but refused to pick Adam up at the

end of the day. According to McCalister, Isidro explained Mother abandoned the children by

leaving them with relatives. Mother’s siblings reported to McCalister that Mother is a heroin

addict and does not provide a safe home for the children. Adam also told McCalister that Mother

is a drug addict.

        In the affidavit, McCalister notes the Department was unable to locate Mother or Father.

The Department was also unable to identify a relative willing to serve as a permanent caretaker for

the three children. According to McCalister, intervention was necessary, in part, because the

family members with whom the children were living had no legal rights regarding the children.

        The trial court held a bench trial on August 1, 2018, at which Mother appeared in person.

The trial court signed an order terminating Mother’s parental rights on August 22, 2018, and this

appeal followed.

                                               ANALYSIS

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

finding of statutory grounds for termination of her parental rights pursuant to Texas Family Code

sections 161.001(b)(1)(F), (N), (O), and (P). Mother additionally contends the evidence is legally

and factually insufficient to support the trial court’s finding that termination of her parental rights

is in the best interest of the children.

                                           Standard of Review

        To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the

Department has the burden to prove by clear and convincing evidence: (1) one of the predicate
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grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child.

See TEX. FAM. CODE ANN. §§ 161.001, 161.206(a); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

In this case, the trial court found evidence of four predicate grounds to terminate Mother’s parental

rights. 2 The trial court also found termination of Mother’s parental rights was in the best interest

of the children.

           When reviewing the sufficiency of the evidence, we apply the well-established standards

of review. See TEX. FAM. CODE ANN. §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108

(Tex. 2006) (factual sufficiency); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal

sufficiency).

                                      Statutory Grounds for Termination

Termination Based on Section 161.001(b)(1)(O): Failure to Comply with Court Order

           Mother asserts the evidence is legally and factually insufficient to support termination of

her parental rights pursuant to Family Code Section 161.001(1)(O). In her brief, Mother points

out that she completed portions of her service plan, specifically drug treatment, as well as anger

management and parenting classes. Mother argues that although she was not able to complete

other portions of her service plan because she was incarcerated, she made a good faith effort to

comply and her failure to comply was not attributable to her own fault. In making this argument,

Mother appears to discuss only the parent visitation requirement of the service plan.




2
    The trial court found evidence Mother

           failed to support the children … during a period of one year[;] … constructively abandoned the
           children[;] … failed to comply with the provisions of a court order[;] … [and] used a controlled
           substance … in a manner that endangered the health or safety of the child, and (1) failed to complete
           a court-ordered substance abuse treatment program[,] or (2) after completion of a court-ordered
           substance abuse treatment program continued to abuse a controlled substance … [.]

See TEX. FAM. CODE ANN. § 161.001(b)(1)(F), (N), (O), (P).

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       Under Family Code Section 161.001(1)(O), termination of parental rights is warranted if

the trial court finds by clear and convincing evidence the parent:

       failed to comply with the provisions of a court order that specifically established
       the actions necessary for the parent to obtain the return of the child who has been
       in the permanent or temporary managing conservatorship of the Department of
       Family and Protective Services for not less than nine months as a result of the
       child’s removal from the parent under Chapter 262 for the abuse or neglect of the
       child.

       TEX. FAM. CODE ANN. § 161.001(1)(O).

       “Texas courts generally take a strict approach to subsection (O)’s application.” In re

S.J.R.–Z., No. 04–17–00238–CV, 2017 WL 6502563, at *9 (Tex. App.—San Antonio Dec. 20,

2017, pet. denied) (mem. op.) (internal quotation omitted); see also In re D.N., 405 S.W.3d 863,

877 (Tex. App.—Amarillo 2013, no pet.). “Ground O 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.” In re B.H.R., 535 S.W.3d 114, 122 (Tex. App.—Texarkana 2017, no pet.).

“Subsection O [also] does not provide a means to evaluate ‘excuses’ or ‘partial compliance.’” In

re S.J.R.–Z., 2017 WL 6502563, at *9; see also In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland

2009, no pet.) (holding subsection (O) “does not encompass an evaluation of a parent’s partial

achievement of plan requirements”). “In other words, ‘substantial compliance is not the same as

complete compliance.’” In re S.J.R.–Z., 2017 WL 6502563, at *9 (quoting In re A.M.M., No. 04–

15–00638–CV, 2016 WL 1359342, at *3 (Tex. App.—San Antonio Apr. 6, 2016, no pet.) (mem.

op.)). “A parent’s failure to complete one requirement of her [family service plan] supports

termination under subsection (O).” In re J.M.T., 519 S.W.3d 258, 267 (Tex. App.—Houston [1st

Dist.] 2017, pet. denied) (internal quotation omitted); In re M.C.G., 329 S.W.3d 674, 675 (Tex.

App.—Houston [14th Dist.] 2010, pet. denied) (holding evidence that parent failed to complete

individual therapy sufficient to support termination).


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       During the trial, the Department presented the testimony of caseworker Alysha Kraft, who

explained the Department became involved when Mother left her children in the care of relatives.

Kraft testified that the children’s maternal uncle Isidro, specifically, was unable and unwilling to

care for the children. Kraft further testified that, at the time of the referral, Adam exhibited

behavioral problems both at home and at school.

       On May 23, 2017, the trial court signed an order in which Mother was ordered to comply

with the provisions of the Department’s service plan, as well as any amended service plan. The

Family Service Plan filed by the Department on June 16, 2017, directed that Mother was to

maintain contact with the Department, attend parent-child visits, attend Narcotics Anonymous

meetings, submit to random drug testing, complete parenting classes, obtain safe and stable

housing and employment, undergo a psychosocial evaluation and substance abuse assessment, and

participate in individual therapy and substance abuse treatment. Kraft testified that Mother was

incarcerated in October 2017, and released from custody on June 26, 2018. In the Family Service

Plan Evaluation, filed with the court on June 27, 2018, the Department added a section titled

“Criminal Involvement” which directed Mother to “refrain from continuing to get arrested and in

trouble with the law. [Mother] will follow all conditions of her probation or parole.”

       Kraft testified that while incarcerated, Mother completed parenting and anger management

classes, as well as inpatient drug treatment. Kraft testified that there was minimal contact between

Mother and the Department following her release from custody and that Mother had not submitted

to drug testing since her release. Kraft additionally testified that Mother had not engaged in

individual therapy as required by the service plan. Kraft further testified Mother was rearrested

on July 13, 2018.

       Viewing all the evidence in the light most favorable to the trial court’s judgment, we

conclude a reasonable trier of fact could have formed a firm belief or conviction Mother failed to
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comply with the provisions of the trial court’s order. Thus, the evidence is legally sufficient to

support this finding. Based upon the same evidence and conclusions, the evidence is also factually

sufficient to support the trial court’s termination finding under Section 161.001(b)(1)(O).

         Having determined the evidence is legally and factually sufficient to support the trial

court’s finding on this statutory ground, we need not consider whether the evidence would support

subsections (F), (N), or (P). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (affirming

determination based on one predicate without reaching second predicate found by factfinder and

challenged by parent).

                                                   Best Interests

         In determining whether a child’s parent is willing and able to provide the child with a safe

environment, we consider the factors set forth in Family Code section 263.307(b). See TEX. FAM.

CODE ANN. § 263.307(b). We also apply the non-exhaustive Holley factors to our analysis. 3 See

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Evidence that proves one or more statutory

ground for termination may also constitute evidence illustrating that termination is in the child’s

best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative

of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the

State of its burden to prove best interest). “A best interest analysis may consider circumstantial

evidence, subjective factors, and the totality of the evidence as well as the direct evidence.” See

In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). “A trier of fact




3
  These factors include: (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any
present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking
custody; (5) the programs available to assist the individuals seeking custody to promote the child’s best interest; (6)
the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed
placement; (8) the parent’s acts or omissions which may indicate that the existing parent-child relationship is improper;
and (9) any excuse for the parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In
re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013).

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may measure a parent’s future conduct by his past conduct and determine whether termination of

parental rights is in the child’s best interest.” Id.

        Kraft testified the children had been placed with their maternal grandparents since May

2017. Kraft expressed concern that Nancy was exhibiting behavioral problems and also that the

grandparents did not want permanent managing conservatorship of the children. Although the

maternal grandmother testified the children still wanted a relationship with Mother, Kraft informed

the trial court that two of the children, Denise and Adam, expressed that they wanted their

grandparents to adopt them. According to Kraft, Nancy stated she wanted Mother to do what was

necessary for Mother to retain her parental rights.

        As noted above, Kraft testified Mother did not comply with the provisions of the court-

ordered service plan. In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (evidence that the appellant

failed to comply with the court-ordered service plan supported the trial court’s best-interest

determination); see also In re A.H., No. 04–15–00416–CV, 2015 WL 7565569, at *9 (Tex. App.—

San Antonio Nov. 25, 2015, no pet.) (mem. op.) (holding failure to complete family service plan

is indicative of failure to prioritize child). Specifically, Mother did not “refrain from continuing

to get arrested and in trouble with the law.”

        Having reviewed the record and considered all the evidence in the appropriate light for

each standard of review, we conclude the trial court could have formed a firm belief or conviction

that termination of Mother’s parental rights was in the children’s best interest. See TEX. FAM.

CODE ANN. § 161.001(b)(2); In re H.R.M., 209 S.W.3d at 108; In re J.P.B., 180 S.W.3d at 573;

see also generally In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (recognizing an appellate court

need not detail the evidence if affirming a termination judgment).




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                                            CONCLUSION

          For the foregoing reasons, we affirm the trial court’s order terminating Mother’s parental

rights.

                                                   Irene Rios, Justice




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