                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-17-00332-CV


IN THE INTEREST OF D.G.


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. D2016241

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      This is an ultra-accelerated appeal2 in which Appellant A.K. (Father)

appeals the termination of his parental rights to his son Douglas3 following a


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal is filed).
      3
       We use aliases for all minors mentioned in the opinion. See Tex. R. App.
P. 9.8(b)(2) (requiring court to use aliases to refer to minors in an appeal from a
judgment terminating parental rights).
bench trial. In three issues, Father challenges the legal and factual sufficiency of

the evidence to support the trial court’s constructive-abandonment, failure-to-

comply-with-a-court-ordered-service-plan, and best-interest findings. See Tex.

Fam. Code Ann. § 161.001(b)(1)(N), (O), (2) (West Supp. 2017). Because we

must strictly construe these involuntary termination statutes in Father’s favor,

because Father was neither served with citation nor appointed counsel until three

months before the termination trial, because the Department of Family and

Protective Services never served Father with its service plan, because the

Department did not prove by clear and convincing evidence that it had made

reasonable efforts to return Douglas to Father, and because the trial court

terminated Father’s parental rights solely based on statutory grounds (N) and

(O)—the only two grounds the Department moved for termination on at trial4—

we are compelled to reverse the portion of the trial court’s judgment terminating

Father’s parental rights and render judgment denying the Department’s petition

to terminate Father’s parental rights. Father does not challenge the portion of the

trial court’s judgment naming the Department as permanent managing

conservator, and a challenge to that portion of the judgment is not subsumed

within Father’s challenges to the termination judgment, so we will affirm the

remainder of the trial court’s judgment as it pertains to conservatorship.


      4
      See In re S.M.R., 434 S.W.3d 576, 580–82 (Tex. 2014) (refusing to deem
a ground pleaded by Department but not expressly found by trial court in its
judgment).

                                         2
                    II. FACTUAL AND PROCEDURAL BACKGROUND5

      Father was adjudicated as Douglas’s father in a paternity suit in 2015. The

order from the paternity suit, which was consolidated with the underlying suit,

appointed Father and Mother as joint managing conservators and named Mother

as the parent with the right to designate Douglas’s primary residence.

                    A. Douglas’s Removal from Mother’s Home

      The Department removed twenty-one-month-old Douglas and his seven-

week-old step-brother Robert from Mother and Step-Father’s home in late

September 2016 after learning that there was domestic violence and drug use in

the home and that Robert had a femur fracture and multiple rib fractures that

Cook Children’s CARE Team opined were consistent with physical abuse.

Father did not live in the home.

 B. Proceedings Before the Trial Court Obtained Jurisdiction over Father

      The Department filed a petition for conservatorship and for termination.

When the constable attempted to serve Father with citation in Hood County in

October 2016, she discovered that Father was no longer living at the address

that was on file.



      5
        At the conclusion of the termination trial, in addition to terminating Father’s
parental rights, the trial court terminated Mother’s and Step-Father’s parental
rights to their respective children based on the affidavits of relinquishment that
they had signed. Although only Father appealed, we include references to
Mother and Step-Father in the background as necessary to set forth the events
that led to the termination of Father’s parental rights.

                                          3
      Despite that Father had not yet been served, the conservatorship worker

prepared a service plan for Father.           Although Father’s service plan did not

contain   language     requiring   him   to       maintain   regular   contact   with   the

conservatorship worker, the conservatorship worker’s November 2016 status

report reflects that

      [Father] contacted the [conservatorship] worker by phone on
      11/15/16, and provided [his] address . . . . [Father] stated that he
      wants to have a relationship with [Douglas] and is willing to
      cooperate in this case. [Father] reported that he is checking himself
      into an in-patient treatment facility for drug addiction[] and that he
      would have the facility contact the worker upon his admission.
      Worker sent [Father] a copy of the Family Plan Of Service via
      certified mail to the address [in Oklahoma that Father] provided on
      this date.

That service plan was returned to the Department unopened. The Department

was later notified by “12 & 12”—a residential treatment facility in Tulsa,

Oklahoma—that Father had entered their program on November 28, 2016, and

that Father was administratively discharged from 12 & 12 on January 3, 2017.

      The trial court incorporated the service plan into its November 30, 2016

status-hearing order. The order does not state that Father reviewed, understood,

or signed the service plan.

      After the case had been pending for nine months, the Department filed a

motion for substituted service of citation, which the trial court granted. The trial

court also appointed an attorney ad litem for Father, who filed an answer on June

28, 2017, and Father was “cited by posting” eight days later. Father did not

appear and was not represented by counsel at any hearings prior to June 28,

                                              4
2017, including the full adversary hearing, the status hearing, and the initial

permanency hearing.

                    C. Proceedings After Father Answered

      Father’s attorney ad litem first personally appeared on Father’s behalf at

the July 5, 2017 permanency hearing. The termination case then proceeded to

final trial on September 27, 2017.

                                     D. The Trial

      The conservatorship worker, who was the sole witness at the termination

trial, testified that she had spoken with Father by phone on several occasions

and had informed him that Douglas was in the Department’s care.              The

conservatorship worker testified that she told Father over the phone that he was

expected to complete a service plan, that she went over each of the required

services with Father, that she offered to help Father locate services in Oklahoma

that would qualify for his service plan but explained that the Department could

not pay for services outside Texas, and that Father appeared to understand what

he was required to do. During the times the conservatorship worker spoke with

Father, sometimes he expressed a desire to relinquish his parental rights, and

other times he expressed a desire to work his services.

      Although the conservatorship worker had not spoken with Father during

the eight months immediately preceding trial since Father had been released

from 12 & 12 in early January 2017, she did not believe that Father had complied

with the court-ordered service plan. The conservatorship worker further testified

                                          5
that Douglas had been in the Department’s care for at least six months, that

Father had not seen Douglas during that time, that Father had failed to maintain

contact with Douglas, and that Father had not demonstrated an ability to provide

Douglas with a safe environment. The conservatorship worker asked the trial

court to terminate Father’s parental rights to Douglas solely on the grounds that

Father had failed to complete his court-ordered service plan and that he had

constructively abandoned Douglas.

      When asked on cross-examination what efforts the Department had made

to return Douglas to Father, the conservatorship worker explained that she had

offered Father services, had mailed him the service plan, had made multiple

phone calls to him, and had offered to “get him into drug treatment here in

Texas.” The conservatorship worker testified that the Department had not had

the opportunity to assess whether Father was able to be an appropriate parent

because the Department did not know where Father was living.                   The

conservatorship worker listed the services that she believed were on Father’s

service plan6 and conceded that it was possible that Father had worked his

services, other than visitation, but that she did not have documentation to reflect

that. The conservatorship worker further testified that she had no proof that

Father had received the service plan; she only had a return receipt showing that

the jail had received the service plan but she admitted that she did not know

      6
       The conservatorship worker mistakenly testified that Father’s service plan
required him to maintain contact with the Department.

                                        6
whether Father was actually in jail on the day that the service plan was delivered.

When asked whether she knew that Father was homeless, the conservatorship

worker responded that she had no knowledge of Father’s living arrangements.

The conservatorship worker agreed that there was nothing that Father did or did

not do that caused Douglas to come into the Department’s care.

      After hearing the testimony above, the trial court found that Father had

constructively abandoned Douglas and had failed to comply with the provisions

of the court-ordered service plan and that termination of Father’s parental rights

to Douglas was in Douglas’s best interest.         The trial court appointed the

Department as Douglas’s permanent managing conservator.                Father then

perfected this appeal.

                III. BURDEN OF PROOF AND STANDARD OF REVIEW

      In a termination case, the State seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except the child’s

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West Supp. 2017); Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to

sever permanently the relationship between a parent and a child, it must first

observe fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex.

2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–

92 (1982)). We strictly scrutinize termination proceedings and strictly construe



                                         7
involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d

796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.

      Termination decisions must be supported by clear and convincing

evidence. See Tex. Fam. Code Ann. §§ 161.001(b), 161.206(a); E.N.C., 384

S.W.3d at 802. Due process demands this heightened standard because “[a]

parental rights termination proceeding encumbers a value ‘far more precious

than any property right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S.

at 758–59, 102 S. Ct. at 1388); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see

also E.N.C., 384 S.W.3d at 802.        Evidence is clear and convincing if it “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 (West

2014); E.N.C., 384 S.W.3d at 802.

      For a trial court to terminate a parent-child relationship, the Department

must establish by clear and convincing evidence that the parent’s actions satisfy

one ground listed in family code section 161.001(b)(1) and that termination is in

the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384

S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must

be established; 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); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—

Fort Worth 2012, no pet.).



                                          8
      In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the Department proved the

challenged ground for termination.    In re J.P.B., 180 S.W.3d 570, 573 (Tex.

2005). We review all the evidence in the light most favorable to the finding and

judgment.   Id.   We resolve any disputed facts in favor of the finding if a

reasonable factfinder could have done so. Id. We disregard all evidence that a

reasonable factfinder could have disbelieved.     Id.   We consider undisputed

evidence even if it is contrary to the finding. Id. That is, we consider evidence

favorable to termination if a reasonable factfinder could, and we disregard

contrary evidence unless a reasonable factfinder could not. See id.

                  IV. NO EVIDENCE SUPPORTS THE TRIAL COURT’S
                        SECTION 161.001(b)(1)(N) FINDING

      In his first issue, Father argues that the evidence is legally and factually

insufficient to support the trial court’s constructive-abandonment finding under

subsection (N). Father concedes that Douglas was in the Department’s care for

at least six months, but he challenges the remaining elements of constructive

abandonment.

      To show constructive abandonment, in addition to showing that the child

has been in its conservatorship for not less than six months, the Department

must show (1) that it “has made reasonable efforts to return the child to the

parent,” (2) that “the parent has not regularly visited or maintained significant


                                        9
contact with the child,” and (3) that “the parent has demonstrated an inability to

provide the child with a safe environment.”        See Tex. Fam. Code Ann.

§ 161.001(b)(1)(N).

      Returning a child to a parent does not necessarily mean that the child has

to be physically delivered to the parent. In re D.S.A., 113 S.W.3d 567, 573 (Tex.

App.—Amarillo 2003, no pet.). “Reasonable efforts” to reunite a parent and child

can be satisfied through the preparation and administration of service plans. See

id. at 570–72. In determining whether this element was met, we focus on the

Department’s efforts, not      the parent’s.     See Tex. Fam. Code Ann.

§ 161.001(b)(1)(N)(i); In re A.L.H., 468 S.W.3d 738, 745 (Tex. App.—Houston

[14th Dist.] 2015, no pet.).

      Here, the Department prepared only one service plan. Throughout the

time the case was pending, the Department made only two attempts to mail

Father a copy of this service plan: the attempt at mailing the service plan to a

residential address in Oklahoma resulted in the return of an unopened envelope,

and the attempt at mailing the service plan to an Oklahoma jail—even though the

conservatorship worker was not sure whether Father was incarcerated there at

that time—resulted in a return receipt reflecting only that the envelope was

received and signed for by an employee at the jail. The Department did not

attempt to send the service plan to Father during his five-week stay at the

inpatient treatment facility in Tulsa. The Department’s conservatorship worker

admitted at the termination trial that she had no proof that Father had ever

                                       10
received a copy of the service plan. Moreover, although the conservatorship

worker testified that she had offered to help Father locate services in Oklahoma

at the outset of the case, the record contains no evidence that she followed

through with her offer or that the Department offered Father any services in

Oklahoma after he filed an answer.

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

constructive-abandonment finding, we hold that the trial court could not have

reasonably formed a firm conviction or belief that the Department put on clear

and convincing evidence that it made reasonable efforts to return Douglas to

Father to support the first element of constructive abandonment. See Tex. Fam.

Code Ann. § 161.001(b)(1)(N)(i); In re J.L.G., No. 06-16-00087-CV, 2017 WL

1290895, at *10 (Tex. App.—Texarkana Apr. 6, 2017, no pet.) (mem. op.)

(holding evidence legally insufficient to support finding under subsection (N)

because no evidence existed that father had received service plan); In re D.N.,

405 S.W.3d 863, 875 (Tex. App.—Amarillo 2013, no pet.) (holding evidence

legally insufficient to support finding under subsection (N) because no evidence

existed that Department had made efforts to provide mother with services); In re

A.Q.W., 395 S.W.3d 285, 290 (Tex. App.—San Antonio 2013, no pet.) (holding

evidence legally insufficient to support finding that Department made reasonable

efforts to return child to father where he did not receive service plan until thirty-

four days before termination trial). Because there is no evidence to support the

first element of constructive-abandonment, we hold the evidence is legally

                                         11
insufficient to support the trial court’s constructive-abandonment finding. See In

re D.T., 34 S.W.3d 625, 633 (Tex. App.—Fort Worth 2000, pet. denied) (holding

that constructive-abandonment finding fails if there is no evidence of one or more

elements of subsection (N)). Having held that the evidence is legally insufficient

to support the trial court’s constructive-abandonment finding, we need not

address Father’s factual sufficiency challenge to that finding. See Tex. R. App.

P. 47.1. We sustain Father’s first issue.

                  V. NO EVIDENCE SUPPORTS THE TRIAL COURT’S
                       SECTION 161.001(b)(1)(O) FINDING

      In his second issue, Father argues that the evidence is legally and factually

insufficient to support the trial court’s finding under subsection (O) that he failed

to complete his service plan. Father challenges the sufficiency of the evidence to

prove that he was aware of the requirements of the plan.7

      To terminate parental rights pursuant to subsection (O), the Department

must show that (1) the child was removed under chapter 262 of the Texas Family

Code for abuse or neglect, (2) the child has been in the managing

conservatorship of the Department for at least nine months, and (3) the parent

“failed to comply with the provision of a court order that specifically established

the actions necessary for the parent to obtain the return of the child.” Tex. Fam.

Code Ann. § 161.001(b)(1)(O). Subsection (O) first requires the existence of a

      The Department’s brief relies solely on the constructive-abandonment
      7

ground to support the termination of Father’s parental rights and states that “the
Department will not address [Father’s] complaint regarding the evidence
supporting termination of his parental rights under subsection (O).”
                                         12
valid, predicate court order that a parent has failed to comply with to obtain the

return of the child. See In re D.M.F., 283 S.W.3d 124, 133 (Tex. App.—Fort

Worth 2009, pet. granted, judgm’t vacated w.r.m.) (op. on reh’g).

      During the termination trial, no orders were admitted into evidence or

identified as being an order with which Father had not complied. The trial court’s

order incorporating the family service plan was signed on November 30, 2016—

approximately seven months before Father answered. See In re Tex. Dep’t of

Family & Protective Servs., 415 S.W.3d 522, 528 (Tex. App.—Houston [1st Dist.]

2013, orig. proceeding [mand. denied]) (stating that trial court does not have

jurisdiction to enter an order or judgment against a person unless the record

shows proper service of citation on that person, an appearance by that person, or

a waiver of service). After Father answered, the trial court did not enter a new

order incorporating the service plan. Moreover, even if Father were charged with

notice of the service plan after he answered on June 28, 2017, he was not given

a reasonable opportunity to comply before the trial started three months later.

See, e.g., A.Q.W., 395 S.W.3d at 290 (stating that because appellant did not

receive his service plan until thirty-four days before termination trial, there was no

evidence that he was provided with a reasonable opportunity to enroll in, much

less complete, any of the requirements he could have complied with while

incarcerated).

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

subsection (O) finding, we hold that the trial court could not have reasonably

                                         13
formed a firm conviction or belief that the Department put on clear and

convincing evidence to support the finding that Father had failed to comply with

the provision of a court order that specifically established the actions necessary

for Father to obtain the return of Douglas because the Department never served

the service plan on Father.       See Tex. Fam. Code Ann. § 161.001(b)(1)(O);

D.M.F., 283 S.W.3d at 134 (holding evidence legally insufficient to support trial

court’s findings terminating father’s parental rights under subsection (O)). Having

held that the evidence is legally insufficient to support the trial court’s finding that

Father failed to complete his service plan, we need not address Father’s factual

sufficiency challenge to that finding. See Tex. R. App. P. 47.1. We sustain

Father’s second issue.8

               VI. CONSERVATORSHIP NOT CHALLENGED ON APPEAL

      Father does not challenge on appeal the portion of the trial court’s

judgment    naming     the   Department     as   Douglas’s     permanent     managing

conservator. When the Department is appointed as managing conservator solely

based on family code section 161.207 as a consequence of the trial court’s


      8
        Because we hold that the evidence is legally insufficient to support a
finding under the two statutory grounds on which Father’s parental rights were
terminated, we do not address Father’s third issue challenging the sufficiency of
the evidence to support the trial court’s best-interest finding. See Tex. R. App. P.
47.1; Tex. Fam. Code Ann. § 161.001(b) (requiring one statutory ground in
addition to best interest for termination of parental rights); A.Q.W., 395 S.W.3d at
291 (declining to address best-interest arguments because evidence was
insufficient to support statutory grounds); In re A.S., 261 S.W.3d 76, 90 n.15
(Tex. App.—Houston [14th Dist.] 2008, pet. denied) (same).

                                          14
termination order, a parent’s challenge to the Department’s conservatorship

appointment is automatically subsumed within the parent’s appeal of the

termination order, and a separate issue on appeal challenging the Department’s

conservatorship is not required. See Tex. Fam. Code Ann. § 161.207 (West

Supp. 2017) (requiring trial court to appoint managing conservator when it

terminates parental rights); In re D.N.C., 252 S.W.3d 317, 319 (Tex. 2008)

(holding parent’s challenge to Department’s conservatorship appointment was

subsumed in appeal of parental-rights termination order when Department was

appointed conservator solely based on section 161.207 as a result of termination

order).   When, however, a trial court’s termination judgment appoints the

Department as managing conservator pursuant to section 153.131, and the trial

court has made the specific findings that section 153.131 requires—that

appointment of the parent as managing conservator would not be in the best

interest of the child because the appointment would significantly impair the child’s

physical health or emotional development—then a parent appealing the

termination judgment must specifically challenge the trial court’s section 153.131

findings and the appointment of the Department as conservator. See Tex. Fam.

Code Ann. § 153.131 (West 2014) (authorizing appointment of Department as

nonparent managing conservator if the trial court makes certain findings); In re

J.A.J., 243 S.W.3d 611, 615–17 (Tex. 2007) (holding parent must raise appellate

issue specifically challenging trial court’s section 153.131 findings or challenging



                                        15
appointment of Department as conservator under section 153.131 because such

a challenge is not subsumed within parent’s challenge to termination order).

      Here, the trial court made section 153.131 findings. The order terminating

Father’s parental rights to Douglas states that “[t]he Court finds that the

appointment of the Respondents as permanent managing conservator of the

children would not be in the children’s best interest because the appointment

would significantly impair [the] children’s physical health or emotional

development.” As previously mentioned, Father did not challenge these findings.

In this context, a challenge to the appointment of the Department as Douglas’s

permanent managing conservator is not subsumed in Father’s challenges of the

termination decision. See J.A.J., 243 S.W.3d at 615–17; A.L.H., 468 S.W.3d at

747; C.D.E., 391 S.W.3d at 301–02. Accordingly, we cannot reverse the trial

court’s conservatorship appointment.

                                VII. CONCLUSION

      Having sustained Father’s first two issues, which are dispositive of this

appeal, we reverse the portion of the trial court’s judgment terminating Father’s

parental rights and render judgment denying the Department’s request to

terminate Father’s parental rights to Douglas. See Tex. R. App. P. 43.2(c), 47.1.

Because the appointment of the Department as Douglas’s permanent managing

conservator under section 153.131 is not subsumed within Father’s appeal of the

termination judgment and is not challenged on appeal, we affirm the portion of



                                       16
the trial court’s judgment appointing the Department as Douglas’s permanent

managing conservator.



                                              /s/ Sue Walker
                                              SUE WALKER
                                              JUSTICE

PANEL: WALKER, KERR, and PITTMAN, JJ.

DELIVERED: January 25, 2018




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