AFFIRM and Opinion Filed March 3, 2020




                                   S  In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                               No. 05-19-01082-CV

             IN THE INTEREST OF X.A.S., A CHILD, Appellant

               On Appeal from the 196th Judicial District Court
                            Hunt County, Texas
                       Trial Court Cause No. 86621

                        MEMORANDUM OPINION
        Before Chief Justice Burns, Justice Whitehill, and Justice Molberg
                         Opinion by Chief Justice Burns
      Mother appeals the trial court’s order terminating her parental rights to her

son, X.A.S. In her sole issue, Mother argues the evidence is legally and factually

insufficient to support termination of her parental rights under family code section

161.001(b)(1)(N), constructive abandonment. For the reasons that follow, we affirm

the trial court’s judgment.

                       Factual and Procedural Background

      X.A.S. was born August 10, 2018. That same day, the Texas Department of

Family and Protective Services (the “Department”) received a referral from the

hospital alleging neglectful supervision of X.A.S. based on Mother’s past history

with the Department. Three times prior to X.A.S.’s birth, the Department removed
other children from Mother’s care and became the temporary managing conservator.

In these instances, Mother failed to provide each with proper nutrition—feeding one

of them “only once or one and a half times a day”—kept them in “extremely

unsanitary” conditions—in which one of them got a diaper rash the equivalent of a

second degree burn—tested positive for methamphetamines during one of their

births, and failed to generally provide for the children’s basic needs.

      In this case, as alleged in the Department’s affidavit in support of removal,

X.A.S. weighed 5 pounds and 14 ounces at birth. At X.A.S.’s check-up eight days

after his birth, his pediatrician informed Mother that X.A.S. had lost weight. The

pediatrician advised Mother that because she did not produce enough milk, she

should breastfeed every two hours and supplement with infant formula if X.A.S. was

still hungry.

      The pediatrician’s notes showed that on September 17, 2018, the pediatrician

diagnosed X.A.S. with “failure to thrive” and instructed Mother to take X.A.S.

directly to the neonatal intensive care unit (“NICU”). The notes stated that Mother

was very angry, yelling that she needed to run errands before going to the NICU.

The pediatrician immediately contacted the NICU doctor, advising that if Mother

did not show up within a reasonable time, to call the Department or the police if

necessary.

      In the affidavit in support of removal, CPS Investigator, Kevin Wolfe,

explained that he went to the NICU, where X.A.S. had been admitted the day before.
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A nurse told Wolfe that Mother claimed she was breastfeeding and supplementing

with infant formula, but because X.A.S. was extremely malnourished, the nurse

believed it was more than likely Mother was not supplementing with formula as she

claimed. The nurse further informed Wolfe that X.A.S. had gained weight since

being admitted into the NICU just the day before, and that she did not believe there

was a medical reason for X.A.S.’s weight loss.

      In a letter to the Department, the NICU doctor stated that Mother did not grasp

the seriousness of X.A.S.’s situation. Mother wanted to breastfeed exclusively, but

she was not producing enough milk. Mother repeatedly voiced her opinion to the

hospital staff that they were “over-feeding” X.A.S., and this concerned the doctor as

he did not believe Mother would feed X.A.S. appropriately at home due to her failure

to accept medical advice. In his letter, the doctor further cautioned that X.A.S.’s

condition could impact his brain development.

      Based on these facts, on September 27, 2018, the Department filed its petition

to terminate Mother’s parental rights, and the trial court appointed the Department

as X.A.S.’s temporary sole managing conservator. Because of Mother’s alleged

failure to maintain significant contact with X.A.S. while he was in the Department’s

care, the Department later sought termination under family code section

161.001(b)(1)(N) for constructive abandonment. On September 4, 2019, the case

proceeded to a bench trial. After hearing all the evidence, the trial court terminated

Mother’s parental rights under section 161.001(b)(1)(N) and appointed the
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Department as X.A.S.’s permanent managing conservator. Mother appeals the trial

court’s judgment.

                              Sufficiency of the Evidence

       “Texas Family Code section 161.001(b) allows for involuntary termination of

parental rights if clear and convincing evidence supports that a parent engaged in

one or more of the twenty-one enumerated grounds for termination and that

termination is in the best interest of the child.” In re N.G., 577 S.W.3d 230, 232

(Tex. 2019) (per curiam); TEX. FAM. CODE § 161.001(b)(1)(A)–(U), (b)(2). Here, in

addition to finding that Mother constructively abandoned X.A.S. under section

161.001(b)(1)(N), the trial court also found that termination was in X.A.S.’s best

interest. In her only issue, Mother challenges the legal and factual sufficiency of the

evidence supporting the statutory ground for termination. Mother does not challenge

the trial court’s best interest finding.

   I. Standard of Review

       Because the natural right existing between parents and their children is of

constitutional dimensions, we strictly scrutinize involuntary parental termination.

Troxel v. Granville, 530 U.S. 57, 65–66 (2000); Holick v. Smith, 685 S.W.2d 18, 20

(Tex. 1985). In parental termination cases, due process requires the petitioner to

justify termination by clear and convincing evidence. TEX. FAM. CODE § 161.001(b);

see N.G., 577 S.W.3d at 235. As defined by the family code, “clear and convincing”

evidence is that “measure or degree of proof that will produce in the mind of the trier
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of fact a firm belief or conviction as to the truth of the allegations sought to be

established.” TEX. FAM. CODE § 101.007; N.G., 577 S.W.3d at 235.

       On appeal, we apply a standard of review that reflects the elevated burden at

trial. In re N.T., 474 S.W.3d 465, 475 (Tex. App.—Dallas 2015, no pet.). This means

that under both legal and factual sufficiency standards, we are required to consider

all the evidence to determine whether the factfinder could reasonably form a firm

belief or conviction that the grounds for termination are proven. Id. Further, under

both standards, we must defer to the factfinder’s determinations as to witness

credibility. Id.

       When reviewing for legal sufficiency in a termination case, we view the

evidence in the light most favorable to the finding. In re J.P.B., 180 S.W.3d 570,

573 (Tex. 2005) (per curiam). We “consider all the evidence, not just that which

favors the verdict,” and we assume the 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 incredible. Id.

       When reviewing for factual sufficiency in a termination case, we ask whether,

in light of the entire record, the evidence is such that a factfinder could reasonably

form a firm conviction about the truth of the allegations. N.T., 474 S.W.3d at 475.

Further, we must consider whether the disputed evidence is such that a reasonable

factfinder could not have reconciled that disputed evidence in favor of its finding.

Id. If the disputed evidence is so significant that a factfinder could not have
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reasonably formed a firm belief or conviction, then the evidence is factually

insufficient. Id.

   II. Applicable Law

       A parent constructively abandons a child when the child has been in the

permanent or temporary managing conservatorship of the State for at least six

months and (1) the State has made reasonable efforts to return the child to the parent,

(2) the parent has not regularly visited or maintained significant contact with the

child, and (3) the parent has demonstrated an inability to provide the child with a

safe environment. TEX. FAM. CODE § 161.001(b)(1)(N); See In re K.A.H., 195

S.W.3d 840, 841–42 (Tex. App.—Dallas 2006, no pet.). An exception to the

“reasonable efforts” prong exists if the trial court finds the parent subjected the child

to “aggravated circumstances.” TEX. FAM. CODE § 262.2015(a). The first element

focuses on the Department’s conduct; the second and third elements focus on the

parent’s conduct. Mother challenges only the first and second elements.

   III.       Application

                                “Reasonable Efforts”

       First, Mother challenges the sufficiency of the evidence supporting the trial

court’s finding that the Department made reasonable efforts to return X.A.S. to

Mother. Mother complains that, despite the Department’s claim that aggravated

circumstances waived the requirements of a service plan and other reasonable



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efforts, the Department did not offer any proof of an aggravated circumstances

finding at trial and such finding is not supported by the record.

      In determining whether sufficient evidence supports termination under section

161.001(b)(1)(N), “the question is whether the Department made reasonable efforts,

not ideal efforts.” In re F.E.N., 542 S.W.3d 752, 766–67 (Tex. App.—Houston [14th

Dist.] 2018, pet. denied). Generally, the Department’s implementation of a family

service plan is considered a reasonable effort to return a child to the parent. In re

A.L.H., 468 S.W.3d 738, 744 (Tex. App.—Houston [14th Dist.] 2015, no pet.). A

trial court, however, may waive the requirements of a service plan and other

reasonable efforts if the court finds the parent subjected the child to “aggravated

circumstances.” TEX. FAM. CODE § 262.2015(a). A trial court can make such finding

if “the parent’s parental rights with regard to another child have been involuntarily

terminated based on a finding that the parent’s conduct violated section

161.001(b)(1)(D) or (E)” or “if the parent’s parental rights with regard to another

child of the parent have been involuntarily terminated.” Id. at 262.2015(5), (7).

      We begin by observing that although the Department did not plead aggravated

circumstances in its original petition, its November 21, 2018 Status Report provided

notice that “[t]he Department is seeking aggravated circumstances on [Mother] due

to CPS involvement that led to termination of parental rights to two of her children.”

And following a November 30 adversary hearing, the trial court entered its

December 7, 2018 Temporary Order, in which it expressly found aggravated
                                         –7–
circumstances in X.A.S.’s case based on the involuntary termination of Mother’s

parental rights to two other children and, specifically, as to endangerment grounds

to those children under sections 161.001(b)(1)(D) or (E). Moreover, at trial,

Savannah Ulch, a Department caseworker, testified that Mother had two prior

Department cases involving three other children which resulted in the termination of

Mother’s parental rights of two children, and a relative appointment as permanent

managing conservator of the third child. Thus, the evidence is legally and factually

sufficient to support an aggravated circumstances finding.

       But even if the record did not disclose an aggravated circumstances finding,

the evidence shows the Department made reasonable efforts to return X.A.S. to

Mother. Mother did not appear for trial and never testified. Instead, at trial, Charlene

Green, a Department caseworker,1 testified at length about her communications with

Mother. Green said she first met Mother on October 25, 2018 at Good Samaritan

homeless shelter. Green explained that Nathaniel Newell, Mother’s previous

caseworker, helped Mother get into the shelter where she lived for about two or three

weeks before being discharged. Green testified that Mother told Green and Newell

that after she left the shelter, she began living at a church in McKinney. Mother also

told Green that she sometimes lived in a car with a man and his six-year-old




1
 Initially, Green was the secondary caseworker and Nathaniel Newell was the primary caseworker. In
December 2018, Green became the primary caseworker.
                                              –8–
daughter. According to Green, Mother would not provide the name of the church or

name the man.

      Green testified that on October 25, 2018, she and Newell met with Mother to

discuss Mother’s goals for the case. When Mother expressed that she wanted to raise

X.A.S. and continue breastfeeding, Newell and Green discussed with Mother the

importance of supplementing breastfeeding with infant formula since her failure to

do so caused X.A.S.’s failure to thrive diagnosis. Green then told Mother she “would

be more than happy” to take Mother’s breast milk to X.A.S. Mother gave Green a

container of breast milk that same day.

      Green further testified that Mother was doing “really well” at Good

Samaritan. Mother was attending parenting classes and had also gotten a

housekeeping job at a nearby hotel. At the end of the visit, Mother requested updates

on X.A.S.’s weight. Green told Mother she would update her on X.A.S.’s health and

progress.

      According to Green, the Department generally communicated with Mother

via text message. Green testified she and Mother texted back and forth a lot,

discussing the possibility of setting up drug tests and getting resources. When

Mother said she wanted to work services to fight for X.A.S., Green told Mother that

she would find online parenting classes Mother could do at the library if Mother

gave Green a “location of where she would be.” Mother never gave Green this



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information; Green said “[Mother] struggled with - - saying she had the time and

ability to get somewhere.”

      Because Mother failed two drug tests, she was not allowed to stay at Good

Samaritan. After leaving the shelter, Green testified Mother was laid off from her

job. As Green explained, Mother’s job was a “package deal” based on an agreement

between the shelter and the hotel that people staying at the shelter could work at the

hotel as long as they stayed clean and followed the rules.

      Green further explained that Mother then applied for a job at Oncor, which

required drug testing. Mother told Green she took the drug test, but did not tell Green

the results. At the time, Green believed Mother was struggling with drug use, having

twice tested positive for marijuana. As far as Green knew, Mother’s only job during

the case was at the hotel.

      Green testified that on January 23, 2019, she asked Mother to take a drug test.

When Green sent Mother the testing site’s information, she also discussed with

Mother various transportation options, including public transit. Although Mother did

not submit to drug testing that day, Green explained that Mother drug tested on four

other occasions when either Green or Mother’s friend provided Mother with

transportation. On two of those tests, Mother tested positive for marijuana.

      At the end of January 2019, Green testified she started having problems

communicating with Mother. Mother called Green from a friend’s phone and told

Green she lost her phone. Mother then gave Green an email address for further
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communications. Green told Mother she would send her pictures of X.A.S. and any

updates on a regular basis and asked that Mother email back or call whenever she

could borrow a phone.

      When Green went out on maternity leave in February 2019, Savannah Ulch

took over the case. Ulch testified that she met Mother at a court hearing on February

19. Mother told Ulch she was not participating in services and, though Ulch knew

this was an aggravated circumstances case, Ulch asked Mother if she needed help

finding narcotics anonymous or alcoholics anonymous classes. According to Ulch,

Mother “didn’t need any help finding them,” having told Ulch that she “knew where

[the classes] were in her area.” As far as Ulch knew, Mother never attended any

classes.

      At trial, Ulch further explained that during the time she was assigned to the

case, she never knew where Mother lived. Mother told Ulch she lived in McKinney,

but provided no specifics. On June 12, 2019, Ulch said she offered Mother a ride to

a court hearing set for the next day. In doing so, Ulch again asked Mother where she

lived. Mother replied that “her attorney knew,” and did not tell Ulch. Mother did not

take Ulch up on her offer and did not attend the hearing.

      At the close of evidence, Mother’s attorney moved for a directed verdict,

arguing the Department failed to present any evidence that it made reasonable efforts

to return X.A.S. to Mother. The trial court denied the motion, finding the Department

did beyond what was reasonable in this case. We agree with the trial court.
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      The record shows the Department facilitated Mother’s acceptance into Good

Samaritan where Mother had a job and attended parenting classes; provided Mother

with transportation to drug tests when Mother allowed it to; made efforts to help

Mother with services; advised Mother on the importance of supplementing

breastfeeding with infant formula; provided Mother with pictures of X.A.S. and

regular updates on his health and progress; and took Mother’s breast milk to X.A.S.

at his foster home. Therefore, we conclude that even in the absence of an aggravated

circumstances finding, the Department made reasonable efforts to return X.A.S. to

Mother.

                     “Regular Visits or Significant Contact”

      Next, Mother challenges the trial court’s finding that she did not regularly

visit or maintain significant contact with X.A.S. Mother argues that she regularly

attempted to visit and maintain significant contact with X.A.S., but the Department

“unreasonably thwarted” those efforts because she “no-showed” to a drug test. Green

testified the trial court had a standing order providing that Mother’s visits would be

suspended if she failed a drug test. Pursuant to the court’s order, a “no-show” to a

drug test was presumed a “dirty test.” To regain visits, Mother had to pass two urine

drug tests separated by a two-week time frame.

      Though Mother contends in her briefing the Department failed to notify her

of this policy, both Green and Ulch testified that they discussed it with Mother and

repeatedly reminded Mother of what she needed to do to regain visits. Further,
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Mother’s attorney signed the Temporary Order Following Adversary Hearing which

referenced, through attachments, Mother’s Visitation Plan requiring that Mother

“[m]ust pass two consecutive UA drug tests before visits may resume per standing

court order.”

      Green testified Mother attended three visits with X.A.S. before her visits were

suspended on November 7, 2018. To help Mother regain visits, Green scheduled

drug tests on November 30, 2018, December 12, 2018, January 7, 2019, and January

23, 2019. Mother submitted to the first three tests—two of which Mother tested

positive for marijuana—but she did not take the fourth. Having failed two drug tests

and having “no-showed” to one test, the trial court suspended Mother’s visits. Green

testified that Mother did not have any more visits “due to her choices not to remain

drug-free.”

      Green said she followed up with Mother on January 30, 2019 and again spoke

to her about drug testing so she could regain visits. To accommodate Mother, Green

asked Mother to let her know which days Mother might have transportation so Green

could “do the best that [she] could” to work around that. Mother did not do so.

      Ulch testified that, during the time she was assigned to the case, Mother did

not have any visits with X.A.S. Ulch, however, did talk to Mother about visits and

reminded her of the court’s policy. On seven different days, Ulch asked Mother to

take drug tests, but Mother did not test on any of the requested dates due to

transportation issues. As to one proposed test date, Ulch testified Mother texted
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asking if she could test that day because she had transportation. Ulch explained that

when she accommodated Mother, Mother did not show up.

      Although Mother argues the Department “unreasonably thwarted” her ability

to visit X.A.S., the evidence shows that, to the contrary, submitting to drug testing

to regain visits was within Mother’s control. See Quiroz v. Dep’t of Family and

Protective Servs., No. 01–08–00548–CV, 2009 WL 961935, at *6–7 (Tex. App.—

Houston [1st Dist.] April 9, 2009, no pet.) (mem. op.) (mother was not prevented

from regularly visiting or maintaining significant contact with her child where

mother only needed to have an order denying contact lifted to regain contact); Nuyen

v. Tex. Dep’t of Family and Protective Servs., No. 03–12–00147–CV, 2012 WL

3629427, at *6 (Tex. App.—Austin Aug. 23, 2012, no pet.) (mem. op.) (mother was

not prevented from regularly visiting or maintaining significant contact with her

child where contact could be regained if mother explained in court why she missed

hearings to regain visits). Moreover, Green’s and Ulch’s testimony regarding the

Department’s efforts to assist Mother with scheduling and transportation to drug

testing facilities refutes Mother’s argument that the Department created an

impossible or unreasonable condition for Mother to regain visits by sending Mother

to testing facilities it “knew” she could not get to because of her indigence and lack

of transportation. Further, we find no evidence that Mother ever requested a different

testing location or ever requested transportation assistance.



                                        –14–
      We also disagree with Mother that In re F.E.N., 542 S.W.3d 752 (Tex. App.—

Houston [14th Dist.] 2018, pet. denied) is analogous to this case. In that case, the

trial court signed an order suspending the father’s visits until he established paternity

and provided a clean drug test. Id. at 759. The father complied with the court order,

but the trial court did not reinstate his visits, even after the father requested the trial

court to do so. Id. at 759, 763. Because the trial court prevented the father from

regaining his visits, the Fourteenth Court of Appeals found that the father’s time

away from the child was not voluntary. Id. at 763.

      Like the father in F.E.N. who was required to provide a clean drug test to

regain visits, here, Mother could have regained visits if she passed two urine drug

tests separated by a two-week time frame. The Department gave Mother numerous

opportunities to demonstrate clean drug tests and, when possible, accommodated

Mother’s requested testing dates. But unlike the father in F.E.N. who complied with

the court order, Mother did not show up for testing. Moreover, unlike the trial court

in F.E.N. that prevented the father from regaining his visits, here, there is no

evidence the trial court or the Department prevented Mother from regaining her

visits with X.A.S. Therefore, based on this evidence, we conclude that Mother failed

to regularly visit or maintain significant contact with X.A.S.

                                    CONCLUSION

      Based on our review of the record, we conclude the Department proved by

clear and convincing evidence that (1) Mother subjected X.A.S. to aggravated
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circumstances, (2) the Department made reasonable efforts to return X.A.S. to

Mother, though not required to do so, and (3) Mother failed to regularly visit or

maintain significant contact with X.A.S. Therefore, we conclude the evidence is

legally and factually sufficient to support termination of Mother’s parental rights

under section 161.001(b)(1)(N). We overrule Mother’s sole issue. We affirm the trial

court’s judgment.




                                          /Robert D.Burns, III/
                                          ROBERT D. BURNS, III
                                          CHIEF JUSTICE
191082F.P05




                                       –16–
                                    S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

IN THE INTEREST OF X.A.S., A                   On Appeal from the 196th Judicial
CHILD                                          District Court, Hunt County, Texas
                                               Trial Court Cause No. 86621.
No. 05-19-01082-CV                             Opinion delivered by Chief Justice
                                               Burns. Justices Whitehill and
                                               Molberg participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

      It is ORDERED that appellee recover its costs of this appeal from appellant.


Judgment entered March 3, 2020




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