                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-19-00146-CV


                              IN THE INTEREST OF S.B., A CHILD


                             On Appeal from the 320th District Court
                                      Potter County, Texas
                Trial Court No. 91,359-D, Honorable Pamela C. Sirmon, Presiding

                                         November 5, 2019

                                 MEMORANDUM OPINION
                        Before QUINN, C.J., and PIRTLE and PARKER, JJ.


        In this accelerated appeal, appellant, K.F., seeks reversal of the trial court’s

judgment terminating her parental rights to S.B.1 K.F. challenges the lack of notice of the

termination hearing, the effectiveness of her counsel, the sufficiency of the evidence to

support her constructive abandonment of the child, the sufficiency of the evidence to

support her failure to comply with court-ordered services, and the finding that termination

is in the best interest of the child. We affirm the judgment of the trial court.



        1 To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM.
CODE ANN. § 109.002(d) (West Supp. 2018); TEX. R. APP. P. 9.8(b). The father’s parental rights were also
terminated in this proceeding. He does not appeal.
                                                 Background


       K.F. and her boyfriend, K.B., were living with K.F.’s mother when S.B.2 was born

on February 14, 2018. S.B. was unable to breathe and feed simultaneously and, due to

these complications, S.B. remained in the neonatal intensive care unit at Northwest

Hospital in Amarillo for fifteen days. While S.B. was hospitalized, the Texas Department

of Family and Protective Services became involved after allegations of abuse and neglect

by K.F. and K.B.3 were reported to the Department. The report alleged that K.B. was

angry at hospital staff and “acting irrationally” which led to him being escorted out of the

hospital.


       The Department’s investigator conducted several visits to the home that K.F. and

K.B. would be sharing with K.B.’s father once S.B. was discharged from the hospital. The

home was found to be in a deplorable condition and was deemed unsafe for an infant.

Upon entry to the home, the investigator observed cockroaches, molded food, piles of

clothes, holes in the walls, and trash everywhere. According to the investigator, the home

smelled of rotting meat, cat urine, and human body odor. The home remained in this

condition throughout the investigation with little improvement. There were also concerns

due to K.B.’s untreated mental health issues and his previous history with the Department

which resulted in the removal of K.B.’s child from a previous relationship. As a part of the

Department’s investigation, drug testing was performed and K.B. tested positive for

marijuana. The Department offered Family Based Safety Services to K.F. and K.B., if

K.F. would move into a shelter with S.B. while K.B. worked services. K.F. refused to


       2    S.B. is K.F.’s second child. K.F.’s older child lives with his father in Pittsburg, Texas.

       3    The Department initially believed that K.B. was the father of S.B.

                                                        2
separate herself from K.B. and there were no other placement possibilities available.

After determining that S.B. would be at serious risk for substantial harm because of the

mental and emotional functioning of K.B., the inability of K.F. to temporarily separate from

K.B., and the physical condition of the home, the Department obtained an order of

emergency protection of S.B. and removed the child from K.F.’s care.


       Shortly after S.B. was removed, the Department was contacted by D.B.,4 who

claimed to be S.B.’s father. After genetic testing, an order was entered adjudicating D.B.

the father of S.B.


       Following an adversary hearing, the Department was appointed temporary

managing conservator and S.B. was placed in a foster home pending the approval of a

home study on D.B.’s parents. The court named K.F. as a possessory conservator and

ordered her to comply with a service plan developed by the Department.


       The Department developed a service plan for K.F. and, because she was

continuing her relationship with K.B., the Department also developed a service plan for

K.B. The caseworker reviewed the service plan with K.F., who signed the plan. The

court-ordered service plan set out several tasks and services for K.F. to complete before

reunification with S.B. could occur. These tasks and services included the following:

complete a psychological evaluation and follow recommendations; pay child support of

$50 per month; maintain regular contact with her caseworker; abstain from the use of

illegal drugs; submit to random drug screens; locate and maintain stable housing that is



       4 K.F. lived with D.B. in Arkansas for three months after their divorce in 2017 because K.F. was
homeless and unable to seek custody of her three-year-old son. K.F. moved back to Amarillo to live with
her mother in August of 2017.

                                                  3
free from drugs and violence; locate and maintain stable employment; complete a

psychosocial assessment and follow recommendations; attend individual counseling;

take parenting classes; participate in rational behavior therapy (RBT); and participate in

an assessment at Texas Panhandle Centers (TPC) and follow recommendations. The

family service plan also informed K.F. that its purpose was to assist her in providing a

safe environment for S.B. The plan warned K.F that if she was “unwilling or unable to

provide [S.B.] with a safe environment, [her] parental . . . rights may be restricted or

terminated or [S.B.] may not be returned to you.”


       The trial court conducted a status hearing on April 19, 2018, attended by K.F. and

her counsel.    Following the hearing, the trial court signed a status hearing order,

approving and incorporating by reference the Department’s family service plan and

making the service plan an order of the trial court. In the order, the trial court found that

K.F. had reviewed the service plan, understood it, and signed it.


       The associate judge held permanency hearings on August 23 and December 6,

2018. K.F. attended each of these hearings. The associate judge signed orders following

each hearing in which the court found that K.F. had “not demonstrated adequate and

appropriate compliance with the service plan.”


       K.F. completed her psychosocial evaluation and, beginning in May, she attended

six sessions of individual counseling with Jennifer Voigt, a licensed professional

counselor. According to Voigt, K.F. acknowledged that the home she shared with K.B.

was not clean and that it might not be suitable for a child. K.F. also acknowledged that

K.B. had anger outbursts in the past, but denied that he would be a danger to S.B. K.F.



                                              4
questioned the accuracy of K.B.’s positive drug tests, stating that there was no reason

that K.B. should test positive for marijuana because he was not using drugs.5 K.F. held

several different jobs throughout the sessions and, toward the end of counseling, she

obtained an apartment with K.B. and her mother. The last session that Voigt had with

K.F. was in October. Voigt opined that K.F. had knowledge of appropriate parenting skills

and that K.F. was able to explain how she would use the skills in parenting S.B. While

K.F. made progress in counseling, Voigt expressed concern that K.F. would not place the

safety of S.B. over her relationship with K.B. K.F. did not see the point of RBT and K.F.

was unable to give any example of any tools that she learned from taking the course.

Based on her experience with K.F., Voigt did not believe that K.F. was able to effectively

parent S.B.


      K.F.’s caseworker testified that K.F. scheduled a psychological evaluation two

times, but that she failed to show for the evaluation. Also, K.F. did not schedule a mental

health evaluation at TPC or participate in parenting classes. The last contact that the

caseworker had with K.F. was at a home visit on December 20.                   According to the

caseworker, K.F. maintained sporadic contact with her. The caseworker did not have a

current phone number for K.F. at the time of trial. K.F. submitted to three random drug

tests and these tests were all negative.


      In November, K.F. and K.B. moved into an apartment with K.F.’s mother. In

December, the caseworker visited the home. The conditions of that home were a serious

concern due to trash on the floor, animal feces throughout the home, and the strong smell



      5   K.B. tested positive for marijuana in April, August, and December.

                                                    5
of cigarette smoke and marijuana. K.F. knew a week in advance that the caseworker was

coming for a home visit and she and K.B. were still cleaning whenever the caseworker

arrived. The caseworker could tell that “they cleaned up some of the mess, but there was

still three or four piles of dog feces on the floor.” The kitchen counters were cluttered with

dishes and the cookware was coated with food that had obviously “been there for a long

time.” The condition of the floor was particularly concerning to the caseworker. K.B.’s

use of marijuana in the home also presents a safety issue for S.B.


       According to K.F., the reason that the Department was involved with S.B. was due

to a complaint that K.B. was smoking marijuana at the hospital after S.B. was born. As

far as K.F. knows, K.B. does not smoke marijuana although she is aware that he has

tested positive for marijuana. K.F. was unaware that her apartment smells like marijuana.

K.F. stated that the Department was also concerned that she and K.B. were living with

K.B.’s father because he has a drinking problem and the home was a mess. That is why

K.F. and K.B. moved to an apartment in August. K.F. acknowledged that K.B. took an

anger control training class and goes to TPC for mental health help, but “he’s never really

gotten angry with me.” K.F. believed that K.B. was also participating in services with the

Amarillo Council on Alcoholism and Drug Abuse (ACADA), but the caseworker testified

that K.B. was not participating in ACADA services.


       K.F. worked at Pizza Hut, “off and on,” from October of 2017 until S.B. was born in

February of 2018. After S.B. was born, K.F. worked at Sonic for approximately three

months, and then she was employed at Retail Grocery Inventory Services from June to

December. She worked at Waffle House in December and January. While working at



                                              6
Waffle House, she also worked at Sanex for about a month. On February 28, she began

working at McDonald’s.


       K.F. completed her assessment with TPC before her last hearing in December,

although the Department did not receive confirmation. K.F. said TPC referred her to

Family Support Services for more counseling. According to K.F., she had an appointment

for counseling but she had to reschedule “because when she gave me the appointment

time, she told me two different appointment times, and I ended up at the wrong one.” K.F.

completed RBT in June of 2018, but she said that she did not complete her parenting

classes, “because CareNet has the parenting classes every Tuesday night from 6:00 to

8:00. I don’t have a car. I don’t have a way to get home from the parenting classes at

8:00 at night.” K.F. asked her caseworker about other options for parenting classes and

“she said the only thing they could do is give me bus vouchers.” K.F. acknowledged

receiving four bus vouchers in December, but she used those vouchers so that she and

K.B. could take drug tests that were requested in December. As far as maintaining regular

contact with her caseworker, K.F. says she has not done that “[b]ecause she will not

answer my phone calls.” K.F. completed her psychological evaluation on February 20.

She originally scheduled the evaluation for September 11, but she missed that

appointment because of a death in the family. K.F. stated that she tried to let her

caseworker know that she was having trouble rescheduling the appointment, but she

“would not answer my phone calls.”


       The last time that K.F. visited S.B. was in August, before S.B. was placed with her

paternal grandparents in Arkansas.       K.F. said that she has asked her caseworker

“multiple times” about making arrangements to visit S.B., stating, “I do not have a vehicle.

                                             7
I cannot get to Arkansas.” K.F. has attempted to contact the paternal grandparents, but

claims they will not answer her calls. K.F. says she has a bassinet, playpen, changing

table, and clothes for S.B. K.F. was not aware that the paternal grandparents want to

adopt S.B.


       K.F. has attempted to call her caseworker “at least once a week” but she has only

been able to get ahold of her three times. The last time the caseworker visited K.F.’s

home was in October. The last time the caseworker spoke with K.F. was December 6,

after the court hearing. If K.B. is “handling his stuff, and going to counseling like he needs

to, and taking his medications like he needs to, and working through his issues,” K.F.

does not see a problem with continuing to be with him. If S.B. were returned to K.F., K.F.

and her mother would work opposite shifts so that K.F. could take care of S.B. when K.F.

was home. K.F. also has a friend who could babysit for her.


       S.B. was placed in the home of her paternal grandparents in Arkansas after their

home study was approved. Contrary to K.F.’s assertions, K.F. has not contacted the

paternal grandparents to visit S.B. since S.B. was placed with them, but K.F. visited S.B.

before she was moved to Arkansas. K.F. has not sent any cards, letters, or gifts to S.B.

and she has not asked for assistance with transportation to visit S.B. S.B. is doing “[r]eally

well” in her placement. The paternal grandparents are willing to be a long-term placement

for S.B. and they are willing to adopt her if parental rights are terminated. The paternal

grandparents also have another child of the father’s placed in their home.               The

caseworker testified that it is in S.B.’s best interest that K.F.’s parental rights be

terminated because K.F. has made limited progress, she has failed to complete her

services, she continues to choose the relationship with K.B. over her relationship with

                                              8
S.B., she minimizes K.B.’s drug use, and the condition of the home. S.B.’s continued

placement with her paternal grandparents ensures permanency for S.B.


          On February 21, 2019, the associate judge held a final hearing concerning

termination of K.F.’s parental rights to S.B. K.F. did not appear. K.F.’s attorney requested

a continuance, which was denied by the associate judge. After testimony, the associate

judge terminated K.F.’s parental rights on the grounds set forth in Texas Family Code

section 161.001(b)(1)(N) and (O), and found that termination would be in S.B.’s best

interest.       See TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018).6                          The court

appointed the Department as the managing conservator of S.B.


          K.F. timely filed a request for a de novo hearing before the referring court. The

district court held a de novo hearing and K.F. testified. By letter ruling, the district court

affirmed the termination of K.F.’s parental rights and signed an order of termination.


          On appeal, K.F. raises five issues challenging the trial court’s order of termination

of her parental rights.


                                             Standard of Review


          When reviewing the legal sufficiency of the evidence in a termination case, the

appellate court should look at all the evidence in the light most favorable to the trial court’s

finding “to determine whether a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). To

give appropriate deference to the factfinder’s conclusions, we must assume that the


          6   Further references to provisions of the Texas Family Code will be by reference to “section__” or
“§ __.”

                                                        9
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do

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

found to have been not credible, but we do not disregard undisputed facts. Id. Even

evidence that does more than raise surmise or suspicion is not sufficient unless that

evidence is capable of producing a firm belief or conviction that the allegation is true. In

re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency

review, we determine that no reasonable factfinder could have formed a firm belief or

conviction that the matter that must be proven was true, then the evidence is legally

insufficient and we must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).


       In a factual sufficiency review, we must give due consideration to evidence that the

factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96

S.W.3d at 266. We must determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction about the truth of the Department’s allegations.

Id. We must also consider whether disputed evidence is such that a reasonable factfinder

could not have resolved the disputed evidence in favor of its finding. Id. If, in light of the

entire record, the disputed evidence that a reasonable factfinder could not have credited

in favor of the finding is so significant that a factfinder could not reasonably have formed

a firm belief or conviction, then the evidence is factually insufficient. Id.


                                    Applicable Law


       Involuntary termination of parental rights is a serious proceeding implicating

fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). A

parent’s right to the “companionship, care, custody, and management” of his or her child



                                              10
is a constitutional interest “far more precious than any property right.”         Santosky v.

Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re M.S.,

115 S.W.3d 534, 547 (Tex. 2003).          Consequently, we strictly scrutinize termination

proceedings and strictly construe the involuntary termination statutes in favor of the

parent. Holick, 685 S.W.2d at 20. However, “the rights of natural parents are not

absolute” and “[t]he rights of parenthood are accorded only to those fit to accept the

accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re

J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may forfeit his or

her parental rights by his or her acts or omissions, the primary focus of a termination suit

is protection of the child’s best interest. In re T.G.R.-M., 404 S.W.3d 7, 12 (Tex. App.—

Houston [1st Dist.] 2013, no pet.).


       In a case to terminate parental rights by the Department under section 161.001 of

the Family Code, the Department must establish, by clear and convincing evidence, that

(1) the parent committed one or more of the enumerated acts or omissions justifying

termination, and (2) termination is in the best interest of the child. § 161.001(b). 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.” § 101.007 (West 2019); In re J.F.C., 96 S.W.3d at 264. 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); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet.

denied).   “Only one predicate finding under section 161.001[(b)](1) is necessary to

support a judgment of termination when there is also a finding that termination is in the


                                              11
child’s best interest.” In re A.V., 113 S.W.3d at 362. We will affirm the termination order

if the evidence is both legally and factually sufficient to support any alleged statutory

ground the trial court relied upon in terminating the parental rights if the evidence also

establishes that termination is in the child’s best interest. In re K.C.B., 280 S.W.3d at

894-95.


       The clear and convincing evidence standard does not mean the evidence must

negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,

902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ.). The reviewing court must

recall that the trier of fact has the authority to weigh the evidence, draw reasonable

inferences therefrom, and choose between conflicting inferences. Id. The factfinder also

enjoys the right to resolve credibility issues and conflicts within the evidence and may

freely choose to believe all, part, or none of the testimony espoused by any particular

witness. Id. Where conflicting evidence is present, the factfinder’s determination on such

matters is generally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex.

App.—El Paso 1997, no writ.).


       The appellate court cannot weigh witness credibility issues that depend on

demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d

570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,

the appellate court must defer to the factfinder’s determinations, as long as those

determinations are not themselves unreasonable. Id.




                                            12
                                          Analysis


Due Process Issue


       In her first issue, K.F. contends that she was denied due process because she did

not receive notice of the final hearing held on February 21 before the associate judge.

The Department responds that K.F. did not preserve this issue for appellate review.


       The record shows that K.F. appeared for the permanency hearing on December 6

and that the order from the permanency hearing scheduled a final trial on the merits for

March 21, 2019.      An order resetting the final hearing to February 21 was filed on

December 18. When the associate judge called the case for final hearing on February

21, K.F. was not present. K.F.’s attorney orally requested a continuance. After the judge

denied the continuance, K.F.’s attorney advised the judge that he sent notice of the final

hearing to K.F.’s last known address.


       Immediately following the hearing before the associate judge, K.F.’s attorney filed

a request for de novo hearing. The referring court held a de novo hearing on March 29,

2019, at which K.F. testified. Consequently, the record shows that K.F. was afforded her

due process rights when she appeared and was heard at the de novo hearing. See

Adams v. Am. Quarter Horse Assoc., 583 S.W.2d 828,834 (Tex. App.—Amarillo 1979,

writ ref’d n.r.e.) (“The essential elements of due process . . . are notice and an opportunity

to be heard and to defend in an orderly proceeding adapted to the nature of the case.”).

Since K.F. was able to testify and present witnesses at the de novo hearing, we conclude

K.F. was not deprived of due process on these facts. We overrule K.F.’s first issue.




                                             13
Ineffective Assistance of Counsel Claim


        In her second issue, K.F. asserts that her trial counsel was ineffective because he

asked no questions, made no objections, made no argument, and failed to point out that

the only order setting final hearing was for a different date than the date of trial. 7 K.F.

argues that her counsel’s representation did not simply consist of errors or poor trial

strategy, but it was so blatantly deficient that she was denied any meaningful assistance

and prejudice should be presumed.


        In Texas, there is a statutory right to counsel for indigent persons in parental-rights

termination cases, and this right encompasses the right to effective counsel.

§ 107.013(a)(1) (West 2019); In re M.S., 115 S.W.3d at 544. The standard of review to

apply in evaluating claims of ineffective assistance of counsel in termination of parental

rights cases is the same as that set forth by the United States Supreme Court for criminal

cases in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). “Under the well-established Strickland test, proving ineffective assistance of

counsel requires a showing that (1) counsel made errors so serious that counsel was not

functioning as ‘counsel’ guaranteed by the Sixth Amendment, and (2) the deficient

performance prejudiced the defense, which ‘requires showing that counsel’s errors were

so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” In re

H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (quoting In re M.S., 115 S.W.3d at 545).




        7 This Court ordered the parties to supplement the record to include the record from the de novo

hearing and subsequently directed the parties to address the de novo hearing in supplemental briefing. In
K.F.’s supplemental brief, she does not complain about her trial counsel’s conduct during the de novo
hearing. The de novo hearing was requested by K.F.’s trial counsel and, at it, her counsel cross-examined
witnesses and made a closing argument.

                                                   14
       To determine whether representation was deficient, we much consider all of the

circumstances surrounding the case and determine whether counsel was “reasonably

effective.” In re M.S., 115 S.W.3d at 545. In doing so, we afford great deference to

counsel’s performance, indulging “a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance . . . .” Id. (quoting Garcia v. State,

57 S.W.3d 436, 440-41 (Tex. Crim. App. 2001)).


       In conducting the harm analysis under the second prong of Strickland, reviewing

courts must determine whether there is a reasonable probability that, but for the deficient

performance, the result of the proceeding would have been different. In re M.S., 115

S.W.3d at 549-50.


       An allegation of ineffective assistance of counsel in a termination proceeding must

be firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness and the resulting harm. Walker v. Tex. Dep’t of Family & Protective

Servs., 312 S.W.3d 608, 622-23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). We

may not speculate and find trial counsel ineffective when the record is silent regarding

counsel’s reasons for his actions. P.W. v. Tex. Dep’t of Family & Protective Servs., 403

S.W.3d 471, 476 (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d).


       In considering the record from the hearing before the associate judge and the

supplemental record from the de novo hearing before the district court judge, the record

does not support K.F.’s contention that her trial counsel was ineffective. The record

contains an order dated December 18, 2018, rescheduling the final hearing from March

21 to February 21. K.F.’s counsel requested a continuance of the February 21 trial



                                            15
because of K.F.’s absence and promptly requested a de novo hearing. A de novo hearing

occurred on March 29. At that hearing, K.F.’s counsel questioned witnesses and made

a closing argument. There is nothing in the record before us showing that counsel’s trial

strategy was unreasonable. Without an explanation from trial counsel for his actions, we

may not, in the face of the strong presumption in favor of reasonable representation,

conclude that trial counsel lacked sound strategic reasons for his conduct. See In re M.S.,

115 S.W.3d at 549. As to the second prong of the Strickland test, K.F. has not attempted

to show how any of the actions she claims her trial counsel should have taken would have

resulted in a different outcome.


      Thus, we conclude that K.F. has failed to show that her trial counsel was deficient

or that he prejudiced her defense. We overrule appellant’s issue two.


Failure to Comply with Court-Ordered Service Plan Under § 161.001(b)(1)(O)


      In her third and fourth issue, K.F. challenges the legal and factual sufficiency of the

evidence to support the termination of her parental rights under section 161.001(b)(1)(N)

and (O). Only one statutory ground is required to support termination. See In re A.V.,

113 S.W.3d at 362. We limit our analysis to the issues raised in issue four concerning

the existence of a court-ordered service plan.


      A trial court may terminate parental rights based on section 161.001(b)(1)(O) if the

Department establishes by clear and convincing evidence that the child was removed

under chapter 262 because of abuse or neglect, the Department has been the permanent

or temporary managing conservator for at least nine months, a court order specifically

established the actions necessary for the parent to obtain the return of the child, and the


                                            16
parent failed to comply with that order. § 161.001(b)(1)(O); In re J.F.C., 96 S.W.3d at

278-79. The Supreme Court has broadened the “abuse or neglect” elements to include

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 2017, the Legislature amended section 161.001 and added

subsection (d), which provides that termination under subsection (b)(1)(O) is disallowed

if the parent proves, by a preponderance of the evidence, that the parent was unable to

comply with the specific provisions of the court order, and made a good faith effort to

comply but was unsuccessful through no fault of the parent. § 161.001(d). However, in

the absence of proof under subsection (d), we cannot consider “substantial compliance”

with a court-ordered family service plan to be the same as completion. In re C.R., No.

07-19-00009-CV, 2019 Tex. App. LEXIS 3082, at *9 (Tex. App.—Amarillo Apr. 16, 2019,

no pet.) (mem. op.).


      This Court has held that, to support a termination order based on section

161.001(b)(1)(O), there must be a court order rather than simply a Department-generated

service plan. In re B.L.R.P., 269 S.W.3d 707, 710-711 (Tex. App.—Amarillo 2008, no

pet.). See also In re Z.B. & Z.B., No. 07-16-00026-CV, 2016 Tex. App. LEXIS 7420, at

*13 (Tex. App.—Amarillo July 12, 2016, no pet.) (mem. op.) (holding that failure of the

appellate record to contain a court order establishing the actions necessary for a parent

to obtain the return of his child defeats a termination order based on subsection (O)). A

family service plan that is signed by a parent alone does not satisfy the court-order

requirement of the statute until it has been specifically incorporated into a subsequently

signed court order. In re C.R., 2019 Tex. App. LEXIS 3082, at *14-15.




                                           17
        Section 161.001(b)(1)(O) makes clear that an order must be sufficiently specific to

warrant termination of parental rights for failure to comply with it. In re N.G., 577 S.W.3d

230, 238 (Tex. 2019) (per curiam). On appeal, a court must consider whether the order,

and the service plan, if it was incorporated into the order, was sufficiently specific. Id. A

trial court order referenced by section 161.001(b)(1)(O) that establishes the actions

necessary for the parent to obtain return of a child in the Department’s custody is

sufficiently specific when the terms for compliance are set forth with certainty so that the

parent knows what duties and obligations have been imposed. Id. at 238.


        In issue four, K.F. challenges the existence of a court order that is sufficiently

specific to inform her what she must do to obtain the return of S.B.8 K.F. does not dispute

that S.B. was removed for abuse or neglect, that S.B. was in the Department’s care for at

least nine months, or that K.F. failed to comply with an order of the court. We conclude

that the family service plan was court ordered and sufficiently specific to support

termination.


        The record reflects that the family service plan was court ordered. In this case, the

temporary order filed on March 29, 2018, ordered K.F.’s compliance “with each

requirement set out in the Department’s original, or any amended, service plan during the

pendency of this suit.” K.F. signed her family plan of service on April 4, and the plan was



        8 K.F. did not expressly raise an issue under section 161.001(d), which provides exceptions to

termination of parental rights under section 161.001(b)(1)(O). See TEX. FAM. CODE ANN. § 161.001(d). As
such, we do not address section 161.001(d) in our analysis of this issue.
        We note, however, that K.F. contends that she was unable to attend court-ordered parenting
classes due to lack of transportation. The Department provided her with bus vouchers specifically to resolve
her transportation issue. However, K.F. chose to use these bus vouchers for another purpose. Therefore,
we conclude that K.F. was not unable and did not make a good faith effort to comply with the court order.
See id.

                                                    18
filed with the court the next day. There is no record evidence to indicate that K.F.’s plan

of service was changed or modified.


       K.F. and her attorney attended the status hearing on April 19, and the court made

the following findings in its status hearing order:


       2.1 The Court, having reviewed the pleadings, and considered all evidence
       and information required by law, including all service plans and court reports
       filed by the Department . . . .
       2.4 The Court, having reviewed the service plans filed by the Department,
       find, except as specifically noted below, that the service plans are
       reasonable, accurate, and in compliance with the previous orders of the
       Court.
       2.8 The Court finds that [K.F.] has reviewed and understands the service
       plan and has been advised that unless she is willing and able to provide the
       child with a safe environment, even with the assistance of a service plan,
       with the reasonable period of time specified in the plan, her parental and
       custodial duties and rights may be subject to restriction or to termination or
       the child may not be returned to her.
       2.9 The Court finds that [K.F.] has signed the plan.
       5.1 IT IS ORDERED that, except as specifically modified by this order or
       any subsequent order, the plan of service for the parents, filed with the
       Court or attached to this order and incorporated herein by reference as if
       the same were copied verbatim in this order, is APPROVED and made an
       ORDER of this Court.
       5.2 IT IS ORDERED that the plan of service issued by this Court shall
       continue in full force and effect subject to the following modifications:
       “None.”


       The status hearing order adopted K.F.’s filed service plan and “incorporated it by

reference” specifically making it an order of the court. At the final hearing, the status

hearing order and the service plan were admitted into evidence as exhibits. The service

plan is the only service plan in the record for K.F. Consequently, we conclude that the

record establishes that the family service plan in this case was court ordered.

                                              19
       In addition to establishing that the family service plan was court ordered, the record

also reflects that the family service plan was sufficiently specific to support termination.

The family service plan incorporated into the trial court’s order in April 2018, specifically

stated the actions and responsibilities that are necessary to achieve the plan goal during

the period of the service plan. Regarding those tasks, the caseworker testified that K.F.

completed some of these services, including RBT, a psychosocial evaluation, drug

testing, and individual counseling, but she did not complete parenting classes, or maintain

stable housing or employment.


       As to parenting classes, the plan provided:
       Parenting Classes
       [K.F.] will actively participate in and complete parenting classes. [K.F.] will
       participate in a class that teaches parenting skills which are appropriate for the
       ages of her children. [K.F.] will be responsible for attending two one-day classes if
       she does not take a ten week class. [K.F.] will exhibit proper parenting skills in all
       of her interactions with her child. [K.F.] will be responsible for any payments
       regarding her classes.
       Parenting classes are offered at the following agencies:
       1) CareNet Pregnancy Center, 6709 Woodward, Amarillo, TX 79106. Call
       (806) 354-2288 for class information on class.
       2) Family Support Services, 1001 S. Polk Amarillo, TX 79101. Call (806)
       342-2530 for information on classes.
       3) Texas Panhandle Centers, 1500 S. Taylor, Amarillo, TX. Call (806) 359-
       2005 for information on classes.


       During her testimony, K.F. did not assert that the order was vague or that she did

not know where to go or who to call to schedule parenting classes. K.F. stated that she

had not participated in parenting classes, “because CareNet has the parenting classes

every Tuesday night from 6:00 to 8:00. I don’t have a car. I don’t have a way to get home

from the parenting classes at 8:00 at night.” K.F. asked her caseworker about other

                                             20
options for parenting classes and “she said the only thing they could do is give me bus

vouchers.” K.F. acknowledged receiving four bus vouchers in December, but instead of

using the vouchers for parenting, she used those vouchers so that she and K.B. could

submit to drug testing requested by the Department.


       As to housing and employment, the plan provided:


       Housing & Employment


       [K.F.] will locate and maintain stable housing that has working utilities and
       is free from drugs and violence. [K.F.] will remove or lock up anything in the
       home that poses a risk of harm to her child. [K.F.] will establish daily routines
       and schedules, and learn to live a less chaotic lifestyle. [K.F.] will allow
       announced and unannounced home visits to her home.
       [K.F.] will locate and maintain stable and appropriate employment that
       provides a stable source of legal income adequate enough to support
       herself and her child for a minimum of six (6) months to demonstrate
       stability. [K.F.] will provide employment verification to her caseworker, and
       will provide copies of pay stubs on a monthly basis.


       The plan does not define stable or appropriate except to say that K.F. was to live

in a home with working utilities that is free from drugs, violence, or any hazards, and she

was to hold a job for six months with proof of income.


       The testimony was disputed as to when K.F. and K.B. moved from his father’s

home and the month of the caseworker’s visit to the apartment that K.F. and K.B. shared

with K.F.’s mother. The condition of the apartment was also disputed in that K.F. claimed

not to be aware of the smell of marijuana noted by the caseworker. K.F. did not refute

the caseworker’s report of three or four piles of dog feces on the floor, which posed a

hazard for an infant who was beginning to crawl. The testimony also showed that K.F.

worked at five different jobs during the twelve months that the plan of service was in effect.

                                              21
       There was also testimony that K.F. completed other services under the plan such

as RBT, drug testing, and several sessions of individual counseling, and that she

scheduled and rescheduled her psychological evaluation and counseling sessions, which

indicates that the family service plan was sufficiently specific to put K.F. on notice as to

what tasks she was required to complete.


       We conclude that the plan of service was sufficiently specific to inform K.F. of the

duties and obligations required.


       Here, as the trier of fact, the trial court resolved credibility issues and conflicts in

the evidence against K.F. We conclude the trial court was presented with clear and

convincing evidence sufficient to support a finding that K.F. failed to comply with specific,

itemized tasks contained within a court order required to obtain the return of her child.

See In re N.G., 577 S.W.3d at 238. As such, K.F.’s fourth issue is overruled.


Best Interest of the Child


       In her fifth issue, K.F. challenges the legal and factual sufficiency of the evidence

supporting the best interest finding made under section 161.001(b)(2). A determination

of best interest necessitates a focus on the child, not the parent. See In re B.C.S., 479

S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts examine the entire

record to decide what is in the best interest of the child. In re E.C.R., 402 S.W.3d at 250.

There is a strong presumption that it is in the child’s best interest to preserve the parent-

child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).


       In assessing whether termination is in a child’s best interest, the courts are guided

by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.

                                              22
1976). These factors include: (1) the desires of the child, (2) the emotional and physical

needs of the child now and in the future, (3) the emotional and physical danger to the

child now and in the future, (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 for the child by these individuals or by the agency seeking custody, (7)

the stability of the home or proposed placement, (8) the acts or omissions of the parent

that may indicate that the existing parent-child relationship is not proper, and (9) any

excuse for the acts or omissions of the parent. Id. “[T]he State need not prove all of the

factors as a condition precedent to parental termination, ‘particularly if the evidence were

undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,

95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re

C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory

grounds for termination may also constitute evidence illustrating that termination is in the

child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis

may consider circumstantial evidence, subjective factors, and the totality of the evidence

as well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,

no pet.). We must also bear in mind that a child’s need for permanence through the

establishment of a stable, permanent home has been recognized as the paramount

consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.

App.—Dallas 2007, no pet.).




                                             23
The desires of the child


       At the time of trial, S.B. was thirteen months old and was non-verbal. As such, the

record is silent regarding S.B.’s desires. However, the evidence showed that she had

spent all but fifteen days of her life in a foster home or relative placement. Certainly, the

lack of contact between K.F. and S.B. in the seven months prior to trial supports a

conclusion that there is no emotional bond between them. Given the vulnerable age of

S.B., this evidence weighs in favor of the trial court’s best interest determination. See In

re J.M.T., 519 S.W.3d 258, 271 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).


The emotional and physical needs of and danger to the child


       The next two factors are the child’s emotional and physical needs now and in the

future, and the emotional and physical danger to the child now and in the future. The

need for permanence is a paramount consideration for a child’s present and future

physical and emotional needs. Edwards v. Tex. Dep’t of Protective & Regulatory Servs.,

946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ).              A parent’s inability or

unwillingness to provide adequate care for her child, lack of parenting skills, and poor

judgment may be considered when looking at the child’s best interest. In re C.A.J., 122

S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.).


       At thirteen months of age, S.B. requires constant emotional and physical support.

In re A.K., 487 S.W.3d 679, 688 (Tex. App.—San Antonio 2016, no pet.).               She is

dependent solely on a caregiver for her needs and protection, and these needs for

emotional and physical support will continue for many years. Id. K.F. continued her

relationship with K.B. knowing that her parental rights were in jeopardy and planned to


                                             24
continue living with K.B. K.B. did not complete his plan of service and his consistent use

of marijuana and his untreated mental health issues posed a risk to S.B.’s safety and

stability. K.F. dismissed concerns expressed by the Department about K.B.’s continued

use of marijuana and his propensity for angry outbursts. The physical condition of K.F.’s

and K.B.’s home changed very little during the Department’s involvement.                 K.F.’s

unwillingness or inability to maintain a drug-free home, and continued relationship with

K.B. suggests that similar conduct will occur in the future, thereby constituting evidence

of emotional and physical danger to the child now and in the future. In re D.L.N., 958

S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied). The trial court could have

concluded that K.F. is unable to meet the physical or emotional needs of S.B. and is

unable to protect S.B. from physical or emotional danger. These two factors weigh heavily

in favor of the trial court’s best interest determination.


Parenting ability and programs available to assist party seeking custody


       The fourth and fifth factors will be discussed together. In reviewing the parenting

ability of the parent, a factfinder can consider the parent’s past neglect or past inability to

meet the physical and emotional needs of the child. In re G.N., 510 S.W.3d 134, 139

(Tex. App.—El Paso 2016, no pet.). “A parent’s drug use, inability to provide a stable

home, and failure to comply with his family service plan support a finding that termination

is in the best interest of a child.” In re S.B., 207 S.W.3d 877, 888 (Tex. App—Fort Worth

2006, no pet.). The factfinder can infer from a parent’s failure to take the initiative to avail

herself of the programs offered to her by the Department that the parent “did not have the

ability to motivate herself to seek out available resources needed now or in the future.”

In re J.M., No. 01-14-00826-CV, 2015 Tex. App. LEXIS 2130, at *21 (Tex. App.—Houston

                                              25
[1st Dist.] Mar. 5, 2015, no pet.) (mem. op.) (citing In re W.E.C., 110 S.W.3d 231, 245

(Tex. App.—Fort Worth 2003, no pet.)).


       While K.F. completed some of her court-ordered services, she failed to

demonstrate real progress from those services and make the necessary changes in her

life that would positively impact S.B. K.F. did not see the point of RBT and she was unable

to give any example of any tools that she learned from taking the course. K.F. continued

to live in an unsafe home environment despite the Department’s intervention and

changing residences. K.F. was unwavering in her pursuit of a relationship with K.B. in

spite of his consistently testing positive for marijuana, and his refusal to participate in a

substance abuse assessment and a drug treatment program.


       K.F.’s failure to complete these necessary services could have led the trial court

to infer that K.F. did not have the ability to motivate herself to seek out available resources

now or in the future. See id. at *21-22. The trial court was entitled to find that this

evidence weighed in favor of the best interest finding.


Plans for the child and stability of the home or placement


       We will consider the sixth and seventh factors together. The sixth factor examines

the plans for the child by those individuals or the agency seeking custody. The seventh

factor is the stability of the home or proposed placement. Stability and permanence are

paramount in the upbringing of children. In re J.D., 436 S.W.3d 105, 120 (Tex. App.—

Houston [14th Dist.] 2014, no pet.). The factfinder may compare the parent’s and the

Department’s plans for the child and determine whether the plans and expectations of

each party are realistic or weak and ill-defined. Id. at 119-20.


                                              26
       K.F. obtained an apartment so that S.B. could come home and she has acquired

a bassinet, playpen, changing table, and clothes for S.B. K.F. has the ability to get a crib

if she needs one. K.F. plans to let her mother keep S.B. when K.F. is working, and then

K.F. can care for S.B. while her mother works. K.F. plans to continue her relationship

with K.B. regardless of whether S.B. is returned to her care. K.F.’s inability to demonstrate

stability is further evidenced by her frequent job changes, and her failing to establish a

safe, stable, and drug-free home environment suitable for a thirteen-month-old child.


       The Department was seeking permanence for S.B. S.B. has lived with her paternal

grandparents since August of 2018 and she is doing “really well” in their home. S.B.’s

half-sibling is also placed in the home. The paternal grandparents wish to adopt S.B.,

which would provide permanency and stability for S.B. If adopted, S.B. would receive

post-adoption benefits.


       This evidence supports the trial court finding that termination was in the best

interest of the child.


Acts and omissions of the parent


       The eighth factor is the parent’s acts or omissions that may indicate that the

existing parent-child relationship is not a proper one. Despite K.B.’s many positive drug

tests, K.F. continued to assert that K.B. did not use marijuana and questioned the

accuracy of his positive tests. K.F. was aware from the time that S.B. was taken into care

by the Department that her parental rights were in jeopardy and that she was required to

complete services offered by the Department in order to be reunited with S.B. Here,

although the evidence showed that K.F. completed some of the plan’s requirements, the


                                             27
evidence showed that K.F. did not comply with the portion of her plan designed to address

the reasons S.B. was taken into care, including: K.F.’s failure to maintain stable housing

that is free from drugs, locate and maintain stable employment for a minimum of six

months to demonstrate stability, maintain regular contact with her caseworker regarding

her participation and progress in services, participate in and complete parenting classes,

and complete a TPC assessment within sixty days of receiving the plan.


       In considering this evidence, the trial court could have found that the existing

parent-child relationship is not a proper one.


       We conclude that the evidence is both legally and factually sufficient to establish

a firm conviction in the mind of the trial court that termination of K.F.’s parental rights is in

the best interest of S.B. Issue five is overruled.


                                          Conclusion


       The judgment of the trial court terminating K.F.’s parental rights is affirmed.




                                                           Judy C. Parker
                                                              Justice




                                               28
