                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-18-00380-CV

                              IN THE INTEREST OF L.L.N-P., a Child

                      From the 285th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016-PA-01933
                              Honorable Richard Garcia, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: November 21, 2018

AFFIRMED

           S.P. appeals the trial court’s order terminating his parental rights to his son, L.L.N-P. S.P.

challenges the legal and factual sufficiency of the evidence to support the trial court’s predicate

statutory findings and its finding that termination is in L.L.N-P.’s best interest. We affirm the trial

court’s order.

                                              BACKGROUND

           On September 1, 2016, the Texas Department of Family and Protective Services filed a

petition to terminate S.P.’s parental rights to his son L.L.N-P. 1 The petition was filed after the

Department received a referral that L.L.N-P., who was born on August 20, 2016, tested positive



1
  The petition also sought to terminate the parental rights of L.L.N-P.’s mother who did not appeal the order
terminating her parental rights.
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for amphetamines at birth. L.L.N-P. was placed with his maternal grandmother upon his release

from the hospital and has lived with his maternal grandmother during the entire pendency of the

case.

        A two-day bench trial was held on February 7, 2018, and May 16, 2018. At the conclusion

of the trial, the trial court terminated S.P.’s parental rights. S.P. appeals.

                    STANDARD OF REVIEW AND STATUTORY REQUIREMENTS

        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

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 clear and convincing evidence of two predicate grounds and also

found termination of S.P.’s parental rights was in the best interest of L.L.N-P.

        We evaluate the legal and factual sufficiency of the evidence to support the trial court’s

findings under the standards of review established by the Texas Supreme Court in In re J.F.C., 96

S.W.3d 256, 266-67 (Tex. 2002). Under these standards, “[t]he trial court is the sole judge of the

weight and credibility of the evidence, including the testimony of the Department’s witnesses.” In

re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017,

no pet.) (mem. op.).

                            FAILURE TO COMPLY WITH COURT ORDER

        As previously noted, the Department was only required to prove one of the predicate

statutory grounds for termination. In re A.V., 113 S.W.3d at 362. One of the predicate grounds

the trial court found in support of termination was subsection 161.001(b)(1)(O) which permits a

court to order the termination of parental rights if the parent has:



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       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(b)(1)(O).

       S.P. first contends the evidence is insufficient because “the court did not enter any specific

order compelling S.P. to engage in the services set out in his service plan after acquiring

jurisdiction over S.P.” S.P. also contends he never signed the plan, the evidence is questionable

as to whether he ever received a copy of the plan, and the caseworker testified she never reviewed

the service plan with him. Finally, S.P. contends he proved the subsection 161.001(d) affirmative

defense.

       Section 263.101 of the Family Code requires the Department to file a service plan “not

later than the 45th day after the date the court renders a temporary order appointing the

[D]epartment as temporary managing conservator.” TEX. FAM. CODE ANN. § 263.101. If the

Department determines that the child’s parents are unable or unwilling to participate in the

development of the plan or to sign the plan, the Department may file the plan without the parents’

signatures. Id. § 263.103(c). Finally, subsection 263.103(d)(2) of the Family Code provides the

service plan takes effect when the trial court issues an order giving effect to the plan without the

parents’ signatures. Id. § 263.103(d)(2); In re T.T.F., 331 S.W.3d 461, 478 (Tex. App.—Fort

Worth 2010, no pet.) (holding filing of service plan without parent’s signature did not violate

parent’s procedural due process rights).

       A.      Absence of S.P.’s Signature on Service Plan

       In this case, the caseworker testified she was unable to review the service plan with S.P.

after she prepared it and that S.P. was not in communication with her. In view of this testimony,


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the Department must have determined that S.P. was unable or unwilling to participate in the

development of the plan or to sign the plan, thereby allowing the Department to file the plan

without his signature. Id. § 263.103(c). Accordingly, S.P.’s contention relating to his signature

on the service plan is overruled.

       B.      Timing of Court Order Giving Effect to Service Plan

       The Department filed the service plan on October 7, 2016, and the trial court signed an

order giving effect to the plan on November 1, 2016. S.P. argues the order was issued before he

was served; however, S.P. does not cite any authority in support of his contention that the trial

court was required to enter the order after he was served. See TEX. R. APP. P. 38.1(i) (providing

brief must contain argument with appropriate citations to authorities). Because the plan is required

to be filed within 45 days of the temporary orders appointing the Department as managing

conservator and the trial court may sign an order giving effect to a plan without the parent’s

signatures, we conclude the Family Code contemplates such a possibility. Accordingly, S.P.’s

complaint regarding the timing of the trial court’s order is overruled.

       C.      S.P.’s Receipt of Service Plan

       With regard to S.P.’s receipt of the service plan, on the first day of trial, the caseworker

testified she sent certified letters to S.P., but never received any replies. She also testified she

attempted to visit S.P. while he was incarcerated, but the Comal County jail informed her that S.P.

was transferred to the Medina County jail while the Medina County jail stated S.P. was in the

Comal County jail. On the second day of trial, which was three months after the first day of trial,

the caseworker testified she received a letter two weeks earlier from S.P. stating “he was finally

able to put [her[ on the visitation list because, prior to that, [she] was not able to visit him because

[she] wasn’t on that list.” However, the caseworker had not been able to visit S.P. since her receipt

of the letter. When asked if she sent S.P. a copy of the service plan, the caseworker testified, “I

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believe I did, yes.” She was not sure when she sent him the plan, stating she and S.P. “exchanged

letters since the inception of this case. He’s wrote me maybe like five times, and I’ve responded.” 2

         On the first day of trial, S.P. testified he never received any letters from the Department,

and anytime he called the caseworker, his calls went to her voicemail. On the second day of trial,

S.P. testified no one from the Department ever visited with him, but he wrote the Department and

tried to remain in contact from the beginning. S.P. testified he never received the service plan. On

cross-examination, S.P. testified he put the caseworker’s name on his visitor list five or six months

earlier and did not know the caseworker was only informed she was on the list two weeks earlier.

S.P. admitted, however, that he was back and forth between the Comal County jail and Medina

County jail dealing with charges in both counties.

         Because the trial court is the sole judge of the witnesses’ credibility, the trial court could

have believed the caseworker and S.P. had corresponded on at least five occasions regarding the

case. In addition, the trial court could have believed the caseworker’s testimony that she sent S.P.

a copy of the service plan. Accordingly, S.P.’s complaint relating to his receipt of the service plan

is overruled.



2
 Although this testimony may appear to conflict with the caseworker’s testimony on the first day of trial that S.P. had
not replied to her correspondence, the letters sent by S.P. may not have referred to the caseworker’s correspondence.
In addition, the record reflects the caseworker testified by telephone on the first day of trial and was having difficulty
with her notes regarding the case:
               Q (By Department’s attorney) Ms. Munoz, can you share with the Court what the referral
          was that initiated this case.
               A Yes.
                   Can you give me just one second?
                   I’m sorry.
               Q Are you looking up your notes?
               A Yes.
               Q Okay. When you do that, could you please refresh your recollection from your notes, but
          at no point read directly from them as part of your testimony.
                   Okay?
               A Yes, ma’am.
                   Okay. I can’t find it, but I know it was — we received a referral from substance abuse for
          — physical neglect and neglectful supervision. At the time of birth, [L.L.N-P.] was born for
          substance abuse. [sic]

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       D.       Review of Service Plan

       In his brief, S.P. cites section 263.103(a-1) to assert the trial court erred in terminating his

parental rights because the caseworker never reviewed the service plan with him. Section

263.103(a-1) provides, “Before the original service plan is signed, the child’s parents and the

representative of the department shall discuss each term and condition of the plan.” TEX. FAM.

CODE ANN. § 263.103(a-1). In this case, however, the service plan was not signed but, as

previously noted, was given effect by court order. Id. § 263.103(d)(2). Therefore, section

263.103(a-1) is not applicable. In addition, S.P. testified regarding the unavailability of classes in

the jail. This testimony is evidence that S.P. was aware of at least some of the requirements of his

service plan.

       E.       Affirmative Defense

       Finally, S.P. contends the trial court erred in terminating his parental rights because he

established the affirmative defense set forth in subsection 161.001(d) of the Family Code. See id.

§ 161.001(d). Subsection 161.001(d) provides:

           A court may not order termination under Subsection (b)(1)(O) based on the
       failure by the parent to comply with a specific provision of a court order if a parent
       proves by a preponderance of the evidence that:

             (1) the parent was unable to comply with specific provisions of the court order;
       and

           (b) the parent made a good faith effort to comply with the order and the failure
       to comply with the order is not attributable to any fault of the parent.

Id.

       In his brief, S.P. relies on his testimony that no services were offered by the Comal County

jail. This reliance disregards that S.P.’s incarceration is attributable to his fault in committing

criminal offenses. Before the Texas Legislature amended the Family Code to add the affirmative

defense in subsection 161.001(d), Texas courts specifically held incarceration is not a legal excuse

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or defense to a parent’s failure to comply with a service plan order. In re C.J.L., No. 01-17-00283-

CV, 2017 WL 4366010, at *8 (Tex. App.—Houston [1st Dist.] Oct. 3, 2017, pet. denied) (mem.

op.); K.C. v. Tex. Dep’t of Family & Protective Servs., No. 03-17-00184-CV, 2017 WL 3585255,

at *2 (Tex. App.—Austin Aug. 17, 2017, no pet.) (mem. op.). By requiring a parent to prove the

failure to comply with the court ordered service plan is not attributable to any fault of the parent,

we believe the Texas Legislature did not intend to make the affirmative defense available to parents

who are unable to complete service plans because they are incarcerated through their own fault.

Accordingly, we hold the trial court did not err in finding S.P. did not prove the affirmative defense

under subsection 161.001(d).

        F.      Conclusion

        Based on our review of the entire record, we hold the evidence is legally and factually

sufficient to support the termination of S.P.’s parental rights under subsection 161.001(b)(1)(O).

Because the evidence is sufficient to support termination under subsection 161.001(b)(1)(O), we

need not address the other statutory ground for termination that S.P. challenges on appeal. See In

re A.V., 113 S.W.3d at 362; TEX. R. APP. P. 47.1.

                                      BEST INTEREST FINDING

        In determining the best interest of a child, courts apply the non-exhaustive Holley factors

to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors

include: (1) the desires of the child; (2) the present and future emotional and physical needs of the

child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities

of the individuals seeking custody; (5) the programs available to assist these individuals to promote

the best interest of the child; (6) the plans held by the individuals seeking custody of the child; (7)

the stability of the home of the parent and the individuals seeking custody; (8) the acts or omissions

of the parent which may indicate that the existing parent-child relationship is not a proper one; and

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(9) any excuse for the acts or omissions of the parent. Id. The foregoing factors are not exhaustive,

and “[t]he absence of evidence about some of [the factors] would not preclude a factfinder from

reasonably forming a strong conviction or belief that termination is in the child’s best interest.” In

re C.H., 89 S.W.3d 17, 27 (Tex. 2002). “A trier of fact may measure a parent’s future conduct by

his past conduct [in] determin[ing] whether termination of parental rights is in the child’s best

interest.” In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).

       L.L.N-P. is too young to express his desires, but he is bonded with his maternal

grandmother who has provided his only home. See In re S.R., 452 S.W.3d 351, 369 (Tex. App.—

Houston [14th Dist.] 2014, pet. denied) (“When children are too young to express their desires,

the factfinder may consider whether the children have bonded with the foster family, are well-

cared for by them, and have spent minimal time with a parent.”). S.P. has been incarcerated since

L.L.N-P. was two months old and has a theft charge still pending against him for which he could

be sentenced up to two years in a state jail facility. See id. at 370 (relying on periods of parent’s

incarceration while proceedings were pending as evidence to support best interest finding).

Because of his incarceration, S.P. has not engaged in any services and has no bond with L.L.N-P.

Furthermore, because of his incarceration, S.P. cannot provide for any of L.L.N-P.’s needs.

       Having reviewed the record, we hold the evidence is sufficient to support the trial court’s

finding that termination of S.P.’s parental rights was in L.L.N-P.’s best interest.

                                           CONCLUSION

       The order of the trial court is affirmed.

                                                    Sandee Bryan Marion, Chief Justice




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