Opinion filed May 31, 2019




                                       In The


        Eleventh Court of Appeals
                                   ___________

                              No. 11-18-00345-CV
                                 ___________

                IN THE INTEREST OF Z.L.C., A CHILD


                    On Appeal from the 106th District Court
                             Gaines County, Texas
                      Trial Court Cause No. 17-11-17716


                     MEMORANDUM OPINION
      This is an appeal from an order in which the trial court terminated the parental
rights of the mother and the father of Z.L.C. The father timely filed a notice of
appeal; the mother did not appeal. On appeal, the father presents two issues in which
he asserts that the evidence does not support the trial court’s findings. We affirm.
                        Termination Findings and Standards
      The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). To determine 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(b)(1)(A)–(U) and that termination is in the best interest of the child.
FAM. § 161.001(b).
      After the final hearing in this case, the trial court found that Appellant had
committed two of the acts listed in Section 161.001(b)(1)—those found in
subsections (N) and (O). Specifically, the trial court found that Appellant had
constructively abandoned the child and that Appellant had failed to comply with the
provisions of a court order that specifically established the actions necessary for him
to obtain the return of the child, who had been in the 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 for abuse or neglect. The trial court
also found, pursuant to Section 161.001(b)(2), that termination of Appellant’s
parental rights would be in the best interest of the child.
      Under subsection (N), a parent constructively abandons a child if the child has
been in the permanent or temporary managing conservatorship of the Department
for at least six months, if the Department has made reasonable efforts to return the
child to the parent, if the parent has not regularly visited or maintained significant
contact with the child, and if the parent has demonstrated an inability to provide the
child with a safe environment. FAM. § 161.001(b)(1)(N); In re B.D.A., 546 S.W.3d
346, 359 (Tex. App.—Houston [1st Dist.] 2018, no pet.). Under subsection (O), it
must be shown that the parent has failed to comply with the provisions of a court
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order that specifically established the actions necessary for the parent to obtain the
return of the child, that the child has been in the permanent or temporary managing
conservatorship of the Department for not less than nine months, and that the child
was removed from the parent due to the abuse or neglect of the child. FAM.
§ 161.001(b)(1)(O).
                                   Issues Presented
      Appellant argues in his first issue on appeal that the trial court abused its
discretion, with respect to the finding made pursuant to subsection (O), because no
clear and convincing evidence was offered to show that Z.L.C. had been in the
managing conservatorship of the Department for at least nine months or that Z.L.C.
had been removed due to abuse or neglect. In his second issue, Appellant similarly
asserts that the trial court abused its discretion, with respect to the finding under
subsection (N), because no clear and convincing evidence was offered to show that
Z.L.C. had been in the managing conservatorship of the Department for at least six
months. We note that Appellant does not contend on appeal that the evidence was
lacking as to any other elements of subsections (N) and (O). We also note that
Appellant does not challenge the trial court’s finding as to the child’s best interest.
                                Evidence and Analysis
      The record reflects that the family in this case had a history with the
Department prior to the birth of Z.L.C. Z.L.C. was removed from his parents several
days after his birth. Appellant was incarcerated at the time of removal and for much
of the time that this case was pending in the trial court. He participated at trial via
telephone. Appellant testified that, prior to his arrest, he had lived with Z.L.C. for
only four days.
      Appellant signed a family service plan, and it was admitted into evidence as
an exhibit at trial. The exhibit reflects the following reasons for Z.L.C.’s removal:
the mother’s use of drugs, including methamphetamine, while pregnant with Z.L.C.;
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the unsanitary condition of the parents’ home; and the domestic violence between
Appellant and the mother. The service plan indicates that the intake occurred in
November 2017. The service plan was completed on February 7, 2018, and Z.L.C.
was ultimately placed in the home of Appellant’s grandparents in April.1 The final
hearing on termination was held on November 16, 2018. Appellant admitted at trial
that “this case has been going on about one year.” Thus, contrary to Appellant’s
assertions, the Department presented clear and convincing evidence that Z.L.C. had
been in the managing conservatorship of the Department for at least nine months.
We note also that the clerk’s record contains an order signed by the trial court on
December 22, 2017, in which it appointed the Department as temporary managing
conservator of Z.L.C.
       The Department also presented clear and convincing evidence that Z.L.C. had
been removed due to abuse or neglect. The Texas Supreme Court has held that the
language “abuse or neglect of the child” as used in subsection (O) “necessarily
includes the risks or threats of the environment in which the child is placed.” In re
E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). In E.C.R., the court determined that
“placing the child’s physical health or safety at substantial risk” is sufficient to
support a finding of “abuse or neglect.” Id. at 240. Evidence of the mother’s use of
methamphetamine while pregnant, Appellant’s use of drugs, domestic violence
between Appellant and the mother, and the condition of their home constituted
sufficient evidence from which the trial court could have determined by clear and
convincing evidence that Z.L.C. was removed because of a substantial risk of abuse
or neglect.



       1
        We note that these grandparents wish to adopt Z.L.C., that the Department’s plan for Z.L.C. is
adoption by these grandparents, and that termination of the parents’ rights and adoption by these
grandparents was shown to be in Z.L.C.’s best interest.

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        Furthermore, the record reflects that Appellant had not even attempted to
comply with the provisions of his service plan as required by court order. See FAM.
§ 161.001(b)(1)(O). The Department had twice sent Appellant a packet to complete
while incarcerated. Appellant testified that he received the paperwork but that, due
to him being transferred to three different units, he had not had a chance to do the
paperwork. The trial court was free to reject Appellant’s assertion. The hearing in
this case was held in November 2018; the packet was first sent to Appellant in April
and then again in July. Additionally, Appellant had not participated in any services
in the previous case regarding Appellant’s older child; his parental rights were also
terminated with respect to that child.
        We hold that, based on the evidence presented at trial, the trial court could
have reasonably formed a firm belief or conviction about the truth of the allegations
that Appellant challenges in this appeal. Therefore, we overrule both of Appellant’s
issues on appeal.
                                         This Court’s Ruling
        We affirm the trial court’s order of termination.


                                                                   KEITH STRETCHER
                                                                   JUSTICE


May 31, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.


        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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