

Rehearing Overruled, Affirmed, and Supplemental
Opinion on Rehearing filed December 2, 2010.
 
In
The
Fourteenth
Court of Appeals

NO. 14-09-00644-CV

In the Interest
of M.C.G., A Child

On Appeal from
the 310th District Court
Harris County, Texas
Trial Court
Cause No. 2003-19119

 
SUPPLEMENTAL OPINION ON REHEARING
Appellant moved for rehearing, contending that our
opinion relied on improper evidence in affirming the termination of his
parental rights to M.C.G. based on failure to provide support.[1]  We
overrule appellant’s motion and issue this supplemental opinion on rehearing to
respond to some of his arguments.
Despite extensive references to such testimony in his
appellate brief, appellant’s primary argument on rehearing is that we erred in
considering testimony from prior hearings, rather than only the termination
trial, in assessing the evidence regarding failure to support M.C.G.  Testimony
from a prior hearing can be used at trial only if the testimony is admitted
into evidence.  See In re C.L., 304 S.W.3d 512, 514–16 (Tex. App.—Waco
2009, no pet.); Garza v. State, 996 S.W.2d 276, 280 (Tex. App.—Dallas
1999, pet. ref’d); Escamilla v. Estate of Escamilla, 921 S.W.2d 723, 726
(Tex. App.—Corpus Christi 1996, writ denied).  That did not happen in this
case.  The evidence at the termination trial shows that appellant paid no
support, but it does not establish whether he had means to provide support
during the relevant time frame.  Thus, based solely on the evidence admitted at
trial, the evidence is insufficient to support the trial court’s finding that
termination was warranted based on failure to support.
However, based solely on the evidence admitted at the
termination trial, the trial court’s termination order is supportable on
another ground.  The trial court also terminated appellant’s parental rights
based on his failure to complete his family services plan.[2]  It is
undisputed that appellant did not complete one requirement in the family
services plan:  to undergo individual therapy.[3] 
The caseworker testified at trial that appellant was accepted into individual
counseling and that she gave him the necessary information but appellant did
not attend and was therefore terminated from the program.  Appellant argues
that this failure is excused because the caseworker admitted she made a mistake
in the paperwork referring him to counseling and he has never been notified
that the mistake has been corrected.  However, the evidence regarding this
mistake is contained in testimony from a prior hearing, which was not admitted
into evidence at the termination trial.  Further, the Family Code does not
provide for excuses for failure to comply in assessing a statutory violation.  See
In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.); Wilson
v. State, 116 S.W.3d 923, 929 (Tex. App.—Dallas 2003, no pet.).  Rather, any
excuse for failing to complete a family services plan goes only to the best
interest determination, which appellant does not challenge on appeal.  See
In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet. denied); see
also Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 1976); In re S.K.S.,
648 S.W.2d 402, 404 (Tex. App.—San Antonio 1983, no writ).
The Family Code does not provide for substantial
compliance with a family services plan.  See In re J.S., 291 S.W.3d at
67; In re T.T., 228 S.W.3d 312, 319–20 (Tex. App.—Houston [14th Dist.]
2007, pet. denied).  Appellant did not fully comply, and thus the trial court
could have properly concluded that appellant’s sufficiency challenge as to the
termination of his parental rights for failure to do so lacked a substantial
basis in law or fact and was thus frivolous.  Accordingly, we overrule
appellant’s first issue relating to M.C.G. on this basis.
 




                                                                                    
                                                                                    
/s/
           Leslie B. Yates
                                                                                       
            Justice
 
 
 
Panel consists of Chief Justice Hedges
and Justices Yates and Boyce.




[1]
Appellant also contends that our opinion contains factual errors.  Most of the
alleged factual errors relate to the failure to support argument, upon which we
no longer rely.  One error involves a mistyped date, which all parties agree
was stated correctly earlier in the opinion and did not affect our
disposition.  The date referred to in the fourth paragraph of the section in
our original opinion entitled “Parental Rights to M.C.G.” should be September
4, 2008, rather than September 4, 2009.


[2]
The Family Code provides that parental rights may be terminated if the parent “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(1)(O) (West Supp. 2009).


[3]
Appellant stated in his brief that the record contains no family services
plan.  The record has since been supplemented to include the plan, and the
record already contained a finding in a trial court status hearing order, dated
a few days after the family services plan was filed, that appellant understood
the order and had been advised that failing to comply could lead to termination
of his parental rights.


