Opinion issued April 11, 2014




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-13-00880-CV
                             NO. 01-13-00883-CV
                             NO. 01-13-00884-CV
                          ———————————
           IN THE INTEREST OF D.W., J.S.B., E.B., CHILDREN


                  On Appeal from the 310th District Court
                           Harris County, Texas
      Trial Court Case Nos. 2012-05387J, 2011-38676, and 2012-554901


                         MEMORANDUM OPINION

      In this accelerated appeal, appellant, Lovezella Shantell Bartholomew,

challenges the trial court’s order, entered after a bench trial, terminating her



1
      Appellate cause number 01-13-00880-CV; trial court case number 2012-05387J.
      Appellate cause number 01-13-00883-CV; trial court case number 2011-38676.
      Appellate cause number 01-13-00884-CV; trial court case number 2012-55490.
parental rights to her three minor children. 2 In her first issue, appellant contends

that the trial court erred in temporarily appointing appellee, the Department of

Family and Protective Services (“DFPS”), the managing conservator of the

children. In her second through fifth issues, appellant contends that the evidence is

legally and factually insufficient to support the trial court’s findings that she

knowingly engaged in conduct, or knowingly placed the children with persons who

engaged in conduct, that endangered their physical or emotional well-being,3 failed

to support the children,4 constructively abandoned the children, 5 and 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. 6

      We reverse and render in part, and dismiss in part.

                                     Background

      On September 21, 2012, DFPS filed a petition seeking managing

conservatorship and termination of appellant’s parental rights to her three minor

children. By affidavit attached to its petition, DFPS Investigator Sam Hamilton

testified that appellant had been arrested “for making false reports” regarding the


2
      Although the trial court also terminated the parental rights of the children’s
      fathers, they are not parties to this appeal.
3
      See TEX. FAM. CODE ANN. § 161.001(1)(E) (Vernon 2014).
4
      See id. § 161.001(1)(F).
5
      See id. § 161.001(1)(N).
6
      See id. § 161.001(1)(O).

                                           2
father of one of the children (“Father”); was “a suspect” in the “burning down [of

Father’s] family home”; and had left her three children, ages four years, two years,

and three months, home alone while she “went and burned [Father’s] home down.”

The trial court entered an emergency order for the protection of the children,

finding that there existed a continuing danger to their physical health and safety.

After a hearing, the trial court appointed DFPS as the temporary managing

conservator of the children and ordered appellant to comply with the requirements

set out in a DFPS Family Service Plan (“FSP”).

      At the November 13, 2012 status hearing, DFPS Caseworker Damion Green

testified that an FSP had been completed and filed with the trial court, the goal of

the FSP was family re-unification, and the FSP required appellant to “participate in

a psychological [assessment] and follow all recommendations”; complete anger

management, domestic violence, and parenting classes; participate in all court

hearings; and “attend any and all visitations at the CPS office.” Green had “gone

over” the FSP with appellant and “fe[lt] that she understood it.” During cross-

examination, Green, when asked whether “everything . . . within the [FSP] ha[d]

been agreed upon between the parties,” replied in the affirmative.          Appellant

testified that she had signed the FSP, and Green asked the trial court to approve it.

      After the hearing, the trial court issued an order in which it found that

appellant had reviewed and understood the FSP, and it advised appellant that



                                          3
“unless she [was] willing and able to provide the children with a safe environment,

. . . her parental and custodial duties and rights may be subject to restriction or to

termination or the children may not be returned to her.” The trial court “ordered

that the [FSP] as to [appellant], filed with [the trial court] on or before the date of

its order, [was] approved in full and incorporated into the order as if set out

verbatim,” and it ordered appellant “to timely comply.”

      At the July 23, 2013 status hearing, DFPS Caseworker Latoya Porter

testified that appellant had not completed substance abuse counseling or individual

therapy, and she had not visited the children regularly. After the hearing, the trial

court issued an order in which it stated that it had evaluated appellant’s compliance

with the FSP and she had yet to complete “all services.”

      At a September 10, 2013 status hearing, DFPS Caseworker Sonia Inocencio

testified that appellant had missed her last three drug tests and had been asked to

begin outpatient treatment following her substance abuse assessment. Appellant

admitted that she had missed some of her drug tests, but asserted her absence was

unintentional. The trial court ordered appellant to comply with all requirements of

the FSP and again admonished appellant that if she did not follow its orders, her

parental and custodian rights could be “subject to severe restriction or

termination.” After the hearing, the trial court again issued an order stating that it




                                          4
had evaluated appellant’s compliance with the FSP and she had yet to complete

“all services.”

      At trial, Porter testified that the children came into DFPS care after appellant

was arrested for having filed a false police report against Father and “did not give

adequate information” about where to temporarily place the children. Appellant

was also “suspected” of having set fire to Father’s home. The fire was of such

severity that the family inside the home had to be rescued through the windows.

Porter explained that appellant had a history with DFPS and “a lot” of domestic

violence in her home. Porter opined that appellant’s parental rights to all three

children should be terminated because her conduct endangered their physical and

emotional wellbeing.

      Porter further testified that appellant had completed some, but “not all,” of

the FSP requirements. She completed the psychosocial assessment, parenting and

domestic violence classes, and a substance abuse assessment.           And she had

participated in individual therapy and random drug testing. However, appellant

failed a drug test “in the past,” although the results of her drug tests conducted on

November 21, 2012, December 11 and 18, 2012, and July 17, 2013 were negative.

She noted that, as of the time of trial in September 2013, appellant had not visited

the children since March. However, appellant had remained in contact with Porter

through July 2013.



                                          5
      Porter explained that DFPS had located a family member who was willing to

take the children and the member’s “information has been submitted.” Because

appellant had not provided information regarding any local relatives, however, the

children were placed with a foster family, which had “suitable” housing and

income, and was meeting the children’s needs. One child was awaiting hernia

surgery, and another was receiving medication and counseling for attention-

deficit/hyperactivity disorder. The foster family and the children had become

attached, and the children were “thriving.”        Porter opined that it was in the

children’s best interests for appellant’s parental rights to be terminated.

                                 Temporary Order

      In her first issue, appellant argues that “[t]he trial court abused its discretion

in naming DFPS as the children’s temporary sole managing [conservator] because

the evidence adduced at the show cause hearing was legally and factually

insufficient to support the required findings.”         See TEX. FAM. CODE ANN.

§.262.201 (Vernon 2014).

      Because a final decree has been entered in each of the children’s cases, the

temporary orders are moot and therefore not subject to review on appeal. See

F.A.B. v. Dep’t of Family and Protective Servs., No. 01-10-00930-CV, 2012 WL

5310024, at *6 (Tex. App.—Houston [1st Dist.] Oct. 25, 2012, no pet.) (mem. op.);

L.F. v. Dep‘t of Family & Protective Servs., No. 01–10–01148–CV, 2012 WL



                                           6
1564547, at *14 (Tex. App.—Houston [1st Dist.] May 3, 2012, pet. denied) (mem.

op.) (citing Wright v. Wenzel, 749 S.W.2d 228, 234 (Tex. App.—Houston [1st

Dist.] 1988, no writ) (declining to address issues related to temporary orders

because trial court had entered final order)). Accordingly, we dismiss appellant’s

first issue as moot.

                            Sufficiency of the Evidence

       In her second through fifth issues, appellant argues that the trial court erred

in terminating her parental rights as to each child because the evidence is legally

and factually insufficient to support the trial court’s findings that she engaged in

conduct, or knowingly placed the children with persons who engaged in conduct,

that endangered their physical or emotional well-being, failed to support the

children, constructively abandoned the children, and 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.            See TEX. FAM. CODE ANN.

§.161.001(1)(E), (F), (N), (O) (Vernon 2014). Appellant does not challenge the

trial court’s finding that termination of her parental rights is in the children’s best

interests.

       In order to terminate the parent-child relationship under section 161.001, a

party must establish, by clear and convincing evidence, one or more of the acts or

omissions enumerated under section 161.001(1) and that termination is in the best



                                          7
interest of the child. TEX. FAM. CODE ANN. § 161.001. Both elements must be

established, and termination may not be based solely on the best interest of the

child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987). “Only one predicate finding under section

161.001(1) is necessary to support a judgment of termination when there is also a

finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d 355,

362 (Tex. 2003).

Standard of Review

      A parent’s right to “the companionship, care, custody, and management” of

her children is a constitutional interest “far more precious than any property right.”

Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982). The

United States Supreme Court has emphasized that “the interest of parents in the

care, custody, and control of their children . . . is perhaps the oldest of the

fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530

U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas Supreme Court has

also concluded that “[t]his natural parental right” is “essential,” “a basic civil right

of man,” and “far more precious than property rights.” Holick v. Smith, 685

S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]e strictly construe involuntary

termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d 796, 802

(Tex. 2012).



                                           8
      Because termination of parental rights “is complete, final, irrevocable and

divests for all time that natural right . . . , the evidence in support of termination

must be clear and convincing before a court may involuntarily terminate a parent’s

rights.” Holick, 685 S.W.2d at 20 (citing Santosky, 455 U.S. at 747, 102 S. Ct. at

1391). Clear and convincing evidence is “the measure or degree of proof that 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.”      TEX. FAM. CODE ANN. § 101.007

(Vernon 2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).             Because the

standard of proof is “clear and convincing,” the Texas Supreme Court has held that

the traditional legal and factual standards of review are inadequate. In re J.F.C.,

96 S.W.3d at 256, 264–66.

      In conducting a legal-sufficiency review in a parental-rights termination

case, we must determine whether the evidence, viewed in the light most favorable

to the finding, is such that the fact finder could reasonably have formed a firm

belief or conviction about the truth of the matter on which DFPS bore the burden

of proof. See id. at 266. In viewing the evidence in the light most favorable to the

finding, we “must assume that the fact finder resolved disputed facts in favor of its

finding if a reasonable fact finder could do so,” and we “should disregard all

evidence that a reasonable fact finder could have disbelieved or found to be

incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting In re J.F.C.,



                                          9
96 S.W.3d at 266). However, this does not mean that we must disregard all

evidence that does not support the finding. In re J.F.C., 96 S.W.3d at 266.

Because of the heightened standard, we must also be mindful of any undisputed

evidence contrary to the finding and consider that evidence in our analysis. Id. If

we determine that no reasonable trier of fact could form a firm belief or conviction

that the matter that must be proven is true, we must hold the evidence to be legally

insufficient and render judgment in favor of the parent. Id.

      In conducting a factual-sufficiency review in a parental-rights termination

case, we must determine whether, considering the entire record, including evidence

both supporting and contradicting the finding, a fact finder reasonably could have

formed a firm belief or conviction about the truth of the matter on which DFPS

bore the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should

consider whether the disputed evidence is such that a reasonable fact finder could

not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96

S.W.3d at 266–67. “If, in light of the entire record, the disputed evidence that a

reasonable fact finder could not have credited in favor of the finding is so

significant that a fact finder could not reasonably have formed a firm belief or

conviction, then the evidence is factually insufficient.” Id. at 266.




                                          10
Endangering Conduct

      In her second issue, appellant argues that the evidence is legally and

factually insufficient to support the termination of her parental rights as to each

child under section 161.001(1)(E) because DFPS did not show that she engaged in

a “conscious course of conduct that endangered the children’s physical or

emotional well-being.”

      A trial court may order termination of the parent-child relationship if it finds

by clear and convincing evidence that the parent has “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.”         TEX. FAM. CODE ANN.

§.161.001(1)(E). “Endanger” means to expose to loss or injury or to jeopardize.

Boyd, 727 S.W.2d at 533.       Danger to a child need not be established as an

independent proposition and may be inferred from parental misconduct, even if the

conduct is not directed at the child and the child suffers no actual injury. Id.

Conduct that subjects a child to a life of uncertainty and instability endangers the

child’s physical and emotional well-being. In re S.D., 980 S.W.2d 758, 763 (Tex.

App.—San Antonio 1998, pet. denied). Further, violent criminal conduct by a

parent can produce an environment that endangers the well-being of a child. In re

B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied). Termination

under section 161.001(1)(E) must be based on more than a single act or omission



                                         11
and requires a voluntary, deliberate, and conscious course of conduct by the parent

that endangers the child’s physical and emotional well-being. In re J.W., 152

S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied); In re A.S., 261 S.W.3d

76, 83 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (explaining that

subsection (D) concerns child’s environment and subsection (E) concerns parent’s

conduct).

      As to subsection (E), Porter, the sole witness at trial, testified as follows:

      [Counsel for DFPS]:        . . . . [T]here’s a lot of—the house—her
                                 residence was found to be filthy; is that
                                 correct?
      [Porter]:                  Yes.
      [Counsel for DFPS]:        And there’s a lot of domestic violence in the
                                 house; is that correct?
      [Porter]:                  Correct.

      [Counsel for DFPS]:        Okay. Do you feel like this type of conduct
                                 constitutes engaging in conduct which
                                 endangers the physical and emotional well-
                                 being of the children?
      [Porter]:                  Yes.
      [Counsel for DFPS]:        Are you asking that her rights be terminated
                                 under E of 161.001?
      [Porter]:                  Yes.
      ....
      [Counsel for DFPS]:        And you’re aware of the fact that she failed
                                 that drug test; is that correct, tested positive
                                 for marijuana; is that correct?
      [Porter]:                  Correct.



                                            12
      [Counsel for DFPS]:       Again, that constitutes endangerment of the
                                children; is that correct?
      [Porter]:                 Correct.

      DFPS asserts that Porter’s testimony demonstrates that appellant “was the

subject of prior [DFPS] referrals, lived in a filthy home[,] and was involved in

domestic violence in her home prior to the removal of her children.” It further

asserts that it provided “undisputed conclusive proof establishing that [appellant]

jeopardized her children’s emotional or physical well-being in support of the trial

court’s finding under subsection (E).”

      Porter did not, however, present any factual bases to support her conclusory

testimony. Unsupported, conclusory opinions of a witness do not constitute

evidence of probative force and will not support a judgment. Elizondo v. Krist,

415 S.W.3d 259, 264 (Tex. 2013) (“Bare, baseless opinions will not support a

judgment even if there is no objection to their admission in evidence,” and “such

conclusory testimony cannot support a judgment.”); Williams v. Williams, 150

S.W.3d 436, 450 (Tex. App.—Austin 2004, pet. denied) (concluding that

caseworker’s unsupported testimony, which constituted sole evidence at trial, did

not support termination under subsection (E)).

      Further, nothing in Porter’s testimony demonstrates that appellant engaged

in a “conscious course of conduct.” See In re J.W., 152 S.W.3d at 205. The only

instance in the record relating to domestic violence is appellant’s allegedly false


                                           13
report that Father had assaulted her. Although Porter agreed that appellant had

“failed that drug test,” the date of the occurrence is not in the record and evidence

of a single use does not demonstrate a conscious course of conduct. See In re A.S.,

261 S.W.3d at 86 (stating that evidence of single use of marijuana does not rise to

conscious course of conduct). The evidence presented simply does not establish “a

voluntary, deliberate, and conscious course of conduct” sufficient to support a

finding under section 161.001(1)(E). See In re J.W., 152 S.W.3d at 205; Ruiz v.

Tex. Dep’t of Family and Protective Servs., 212 S.W.3d 804, 818 (Tex. App.—

Houston [1st Dist.] 2008, no pet.); Williams, 150 S.W.3d at 450–51.

      DFPS also asserts that the trial court’s finding under subsection (E) is

supported by the fact that the children were initially taken from appellant when she

was arrested for filing a false report and was in jail for an unspecified reason at the

time of trial.   However, imprisonment alone does not constitute endangering

conduct, although it may be a fact to consider on the issue of endangerment. In re

M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.). “The State

must show that the incarceration is a part of a course of conduct that is endangering

the children.” Id.

      Although the record reveals, in passive voice, that appellant was “suspected”

of having set fire to Father’s house, no evidence was presented to prove the

allegation. The record does not show that appellant was “suspected” by any



                                          14
specific law enforcement agent or that she was arrested or formally accused of

arson. The record shows only that DFPS stated, during announcements at the

beginning of trial, “The mother is in jail.” And there is no evidence demonstrating

that appellant’s incarceration was part of a course of conduct that endangered the

children. Cf. id. (concluding that evidence of parent’s incarceration, which had

lasted twenty-six months of child’s thirty-six-month life, had affected parent’s

ability to ensure that child was properly cared for and indicated course of conduct

that endangered child).

      Further, DFPS did not present any evidence that appellant placed her

children with anyone, let alone anyone “who engaged in conduct which

endangered [their] physical or emotional well-being.” See TEX. FAM. CODE ANN.

§.161.001(1)(E).

      Viewing the evidence in the light most favorable to the trial court’s findings,

we conclude that the trial court could not have formed a firm belief or conviction

that appellant engaged in conduct, or knowingly placed her children with persons

who engaged in conduct, that endangered their physical or emotional well-being.

See In re J.F.C., 96 S.W.3d at 266. Accordingly, we hold that the evidence is

legally insufficient to support the trial court’s termination of appellant’s parental

rights under section 161.001(1)(E).

      We sustain appellant’s second issue.



                                         15
Failure to Support

      In her third issue, appellant argues that the trial court erred in terminating

her parental rights under section 161.001(1)(F) because the evidence is legally and

factually insufficient to support the termination of her parental rights as to each

child under section 161.001(1)(F). DFPS, in its appellate brief, concedes that

“there was insufficient evidence” to support termination under section

161.001(1)(F) and “abandons any argument as to that ground.”

      We sustain appellant’s third issue.

Constructive Abandonment

      In her fourth issue, appellant argues that the evidence is legally and factually

insufficient to support the termination of her parental rights as to each child under

section 161.001(1)(N) because there is no evidence regarding “what reasonable

efforts DFPS undertook to return the children,” she “constructively abandoned” the

children, and regarding her inability to provide a safe environment.

      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, (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.



                                         16
FAM. CODE ANN. § 161.001(1)(N); In re K.G., 350 S.W.3d 338, 353–54 (Tex.

App.—Fort Worth 2011, pet. denied); In re A.S., 261 S.W.3d at 88–89.

      Regarding the third element, Porter testified on direct examination that, as of

the time of trial in September 2013, appellant had not visited the children on a

regular basis and had not “visited the children since March of 2013.” On cross-

examination, however, she testified as follows:

      [Counsel for Appellant]: And appellant had been in contact with you
                               after March, correct?
      [Porter]:                  Correct.
      [Counsel for Appellant]: She had been in contact with you all the way
                               up to July 2013, correct?
      [Porter]:                  Yes.
      [Counsel for Appellant]: So isn’t it true that [appellant] didn’t
                               constructively abandon these children
                               because [she] was participating in services,
                               she had visited the children, and she was in
                               communication with you, correct?
      ....
      [Porter]:                  Yes.

On re-direct, Porter again testified that appellant had not visited the children since

March and, therefore, had constructively abandoned the children.

      “We strictly construe involuntary termination statutes in favor of the parent.”

In re E.N.C., 384 S.W.3d at 802. Here, DFPS had the burden to establish by clear

and convincing evidence that appellant had not regularly visited or maintained

significant contact with her children. See TEX. FAM. CODE ANN. § 161.001(1)(N);


                                            17
In re J.F.C., 96 S.W.3d at 256, 264–66. Porter testified both that appellant had not

visited the children from March 2013 until the time of trial in September 2013, and

that she had visited them and was in contact with Porter up to July 2013.

Notwithstanding whether appellant had visited the children, Porter testified that

appellant maintained contact with her from March 2013 to July 2013. See In re

K.W., 138 S.W.3d 420, 432–33 (Tex. App.—Fort Worth 2004, pet. denied)

(holding that parent’s correspondence with caseworker demonstrated that he had

not constructively abandoned his child under subsection (N)); see also In re D.S.A.,

113 S.W.3d 567, 574 (Tex. App.—Amarillo 2003, no pet.) (recognizing that

incarcerated parent may nonetheless maintain significant contact with child

through correspondence). Cf. In re K.G., 350 S.W.3d 338, 355 (Tex. App.—Fort

Worth 2011, pet. denied) (holding testimony that parent did not visit or maintain

contact constituted legally sufficient evidence to support termination under

subsection (N)).

      Viewing the evidence in the light most favorable to the trial court’s findings,

we conclude that the trial court could not have formed a firm belief or conviction

that appellant constructively abandoned the children. See In re J.F.C., 96 S.W.3d

at 266; In re D.T., 34 S.W.3d at 633. Accordingly, we hold that the evidence is

legally insufficient to support the trial court’s termination of appellant’s parental

rights under section 161.001(1)(N).



                                         18
      We sustain appellant’s fourth issue.

Failure to Comply with Court Order

      In her fifth issue, appellant argues that the evidence is legally and factually

insufficient to support the termination of her parental rights as to each minor child

under 161.001(1)(O) because “there is no court order admitted into evidence at

trial that specifically establish[ed] the actions necessary” for appellant to obtain the

return of her children.

      Parental rights may be terminated when clear and convincing evidence

establishes that a parent (1) has failed to comply (2) with the provisions of a court

order that specifically stated the actions necessary for the parent to obtain the

return of a child (3) who has been in the permanent or temporary managing

conservatorship of DFPS for not less than nine months (4) 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).           Chapter 262 of the Family Code is

entitled “Procedures in Suit by Governmental Entity to Protect Health and Safety

of Child,” and subchapter B provides the procedures that DFPS may employ in

order to remove a child for abuse or neglect. TEX. FAM. CODE ANN. §§ 262.001–

.309 (Vernon 2014).

      Here, as to the second prong, DFPS “acknowledges” in its brief that an FSP

pertaining to appellant “does not appear” in the record of any of the cases in this



                                          19
appeal. It asserts, however, that the trial court’s orders and transcripts of the prior

proceedings in this case, which are contained in the clerk’s and reporter’s records

on file in this appeal, prove that appellant was subject to a court-ordered FSP.

      The clerk’s record shows that on October 2, 2012, the trial court ordered

appellant to comply with the requirements set out in an FSP and informed her that

the actions listed in the FSP were “necessary to obtain return of the children.” In

its November 13, 2012 status order, the trial court “ordered that the [FSP] as to

[appellant], filed with [the trial court] on or before the date of its order, [was]

approved in full and incorporated into the order as if set out verbatim” and

appellant was “ordered to timely comply.” Further, the trial court’s orders, issued

July 23, 2013 and September 10, 2013, show that it evaluated appellant’s

compliance with the requirements of her FSP. And transcripts from status hearings

have been filed in these appeals.

      Appellant argues that the prior orders and transcripts cannot support

termination of her parental rights under section 161.001(1)(O) because the orders

and transcripts were not admitted into evidence at trial.

      A termination finding under subsection (O) cannot be upheld where there is

no court order that specifically establishes the actions necessary for the parent to

obtain return of the child. In re K.F., 402 S.W.3d 497, 504 (Tex. App.—Houston

[14th Dist.] 2013, pet. denied); In re M.D.C., No. 14-13-00414-CV, 2013 WL



                                          20
5366326, at *3 (Tex. App.—Houston [14th Dist.] Aug. 27, 2013, no pet.) (mem.

op.).

        In M.D.C., the parent asserted that the record was devoid of an FSP having

been filed with the trial court or offered into evidence at trial. 2013 WL 5366326,

at *3. The Fourteenth Court of Appeals, in holding the evidence legally and

factually sufficient to support termination under subsection (O), noted that the

clerk’s record in each case contained an FSP, directing the parent to comply with

specific actions, which the trial court incorporated into its temporary orders. Id.

And the reporter’s record revealed that the trial court took judicial notice of its file,

including the FSPs. Id.

        In K.F., the parent argued that, although an FSP was in the clerk’s record, it

constituted “no evidence” because it was not admitted into evidence at trial and

nothing reflected that the trial court took judicial notice of it. 402 S.W.3d at 504

(citing In re C.L., 304 S.W.3d 512, 514, 516–17 (Tex. App.—Waco 2009, no pet.)

(holding evidence insufficient to support termination under section 161.001(1)(O)

because FSP and trial court’s prior orders were not admitted into evidence; DFPS

did not ask trial court to take judicial notice of any prior orders in its file or of any

other matters; trial court did not announce in open court that it was taking judicial

notice; and trial court did not recite in termination decree that it had done so)). In

M.D.C., the Fourteenth Court of Appeals, in concluding that the evidence was



                                           21
legally and factually sufficient to support termination under subsection (O),

declined to follow C.L., holding instead that it may be “presum[ed] that the trial

court took judicial notice” of the existence of a court order regarding an FSP

“without any request being made and without any announcement that it has done

so.” Id.

      Here, unlike in M.D.C. and K.F., DFPS concedes that there is no FSP

pertaining to appellant in the clerk’s records in these appeals and none were

admitted into evidence at trial. Even if we were to assume that the trial court had

taken judicial notice of its prior orders, none of the orders specifically state any of

the actions necessary for appellant to obtain the return of her children. The orders

state that they incorporate FSPs, but no FSPs appear in the records in these

appeals.

      At trial, as to termination under subsection (O), Porter testified only broadly

on direct examination as follows:

      [Counsel for DFPS]:        Has she       completed    her   court-ordered
                                 services?
      [Porter]:                  No.
      [Counsel for DFPS]:        Are you asking [that] her rights be
                                 terminated under [161.001(1)(O)] in that she
                                 failed to complete court-ordered services
                                 necessary for the return of the children?
      [Porter]:                  Yes.




                                          22
On cross-examination, Porter testified regarding various services that appellant had

completed:

      [Counsel for Appellant]: With regards to the mother, isn’t it true that
                               [she] has completed some of the court-
                               ordered services in this case?
      [Porter]:                  She’s completed some of the services.
      [Counsel for Appellant]: Okay. And would some of those services be
                               that she completed the psychosocial
                               assessment?
      [Porter]:                  Yes.
      [Counsel for Appellant]: Did she also complete her parenting classes?
      [Porter]:                  Yes.
      [Counsel for Appellant]: Did she also complete domestic violence
                               classes.
      [Porter]:                  Yes.
      [Counsel for Appellant]: Did she complete a substance abuse
                               assessment?
      [Porter]:                  Yes.
      [Counsel for Appellant]: And did she also participate in individual
                               therapy?
      [Porter]:                  She did.

Porter also testified that appellant had participated in random drug testing, the

results of which were negative. Finally, on re-direct, Porter testified as follows:

      [Counsel for DFPS]:        Has the mother completed all of her court-
                                 ordered services:
      [Porter]:                  Not all of them, no.
      [Counsel for DFPS]:        So you’re asking that her rights be
                                 terminated under [161.001(1)(O)]?
      [Porter]:                  Yes.

                                            23
And although Porter testified that appellant had tested positive for marijuana “in

the past,” no time frame was offered.

      Porter’s testimony simply does not specify any specific action required by a

court-ordered FSP that appellant failed to take. Again, we must “strictly construe

involuntary termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d

at 802. Section 161.001(1)(O) includes “a specificity requirement,” and DFPS is

required to “support its allegations against [appellant] by clear and convincing

evidence; conjecture is not enough.” In re D.N., 405 S.W.3d 863, 878–79 (Tex.

App.—Amarillo 2013, no pet.) (citing In re E.N.C., 384 S.W.3d 796, 810 (Tex.

2012)); see also TEX. FAM. CODE ANN. §.161.001(1)(O) (requiring trial court’s

order to “specifically” state actions necessary to obtain return of children).

      DFPS requests that we abate these appeals so that it may attempt to locate or

substitute the FSPs in each case. Generally, we may not evaluate a trial court’s

rulings based on materials that were not before it at the time that it ruled. Hamm v.

Millennium Income Fund, L.L.C., 178 S.W.3d 256, 272 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied) (citing Methodist Hosps. of Dallas v. Tall, 972 S.W.2d

894, 898 (Tex. App.—Corpus Christi 1998, no pet.) (“It is axiomatic that an

appellate court reviews actions of a trial court based on the materials before the

trial court at the time it acted.”)). And even if the FSPs were located or substituted

and the records supplemented, such that the actions appellant was required to take

                                          24
were demonstrated, Porter did not testify regarding any specific actions that, by the

time of trial, appellant had failed to take.

      Given the record presented to us, we cannot determine what specific

requirements were placed on appellant or ascertain how, by the time of trial, she

failed to comply with any specific requirements. Thus, we cannot conclude that

DFPS presented clear and convincing evidence that supports the trial court’s

finding that appellant has failed to comply with the provisions of a court order

“that specifically established the actions necessary for [her] to obtain the return of

[her children].” See TEX. FAM. CODE ANN. §.161.001(1)(O).

      Viewing the evidence in the light most favorable to the trial court’s findings,

we conclude that the trial court could not have formed a firm belief or conviction

that appellant failed to comply with the provisions of a court order that specifically

established the actions necessary for her to obtain the return of her children. See In

re J.F.C., 96 S.W.3d at 266. Accordingly, we hold that the evidence is legally

insufficient to support termination of appellant’s parental rights under section

161.001(1)(O).

      We sustain appellant’s fifth issue.

                                      Conclusion

      We reverse the portion of the trial court’s decree terminating appellant’s

parental rights in each case and render judgment denying DFPS’s petition for



                                            25
termination of appellant’s parental rights in each case.      We dismiss as moot

appellant’s challenge to the trial court’s temporary orders. Because appellant does

not challenge it here, the portion of the trial court’s final decree naming DFPS the

sole managing conservator of each child remains intact. See In re J.A.J., 243

S.W.3d 611, 613 (Tex. 2007) (concluding that reversal of termination order does

not affect unchallenged conservatorship determination).




                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Higley, and Sharp.




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