In re J.A.
| Decision Date | 08 May 2023 |
| Docket Number | 07-22-00350-CV |
| Parties | IN THE INTEREST OF J.A., E.A., H.L., S.L., AND S.L., CHILDREN |
| Court | Court of Appeals of Texas |
On Appeal from the 46th District Court Wilbarger County, Texas Trial Court No. 29,372, Honorable Dan Mike Bird, Presiding
Before PARKER and DOSS and YARBROUGH, JJ.
Appellants "Robert" and "Karen," appeal from the trial court's judgment terminating their parental rights.[1] Appellee is the Texas Department of Family and Protective Services. On appeal, both Appellants challenge whether termination was proper under TEX. FAM. CODE § 161.001(b)(1)(O) and is in the best interest of the children. After reviewing the evidence, we affirm the judgment.
Robert and Karen are the parents of "Harriet" (6-year-old female), "Sabrina" (five-year-old female), and "Shari" (three-year-old female). Karen is also a parent to two older children-"Jack" (eleven-year-old male) and "Ellie" (nine-year-old female)- through a prior relationship with "Joe."[2] At the time of their removal by the Department, the five children resided with Robert and Karen.
In July 2021, the Department filed its original petition for termination of Robert's and Karen's parental rights to the children. The affidavit in support of emergency removal alleged physical neglect and concern about an unsafe and unsanitary living environment outside and inside their home. Lucy Hernandez, an agent for the Department, stated that when she arrived at the home, she observed the five children playing outside; the three youngest were completely naked. Inside, the children's residence contained a living room with an unsecured plywood floor. The plywood floor had holes large enough that Hernandez could see the ground underneath the trailer, where piles of trash lay.[3] A thirty-gallon trash bin, overflowing with garbage, sat in the middle of the living room; flies circled the debris. Hernandez observed days-old dog feces and urine, including dog feces on the living room couch and on laundry.
In the kitchen area, Hernandez observed piles of dirty dishes leftover food, and trash, while "multiple [] flies swarmed around it." In Karen's bedroom was an uncovered fuse box accessible to the children; "wires were observed to be hanging out of the fuse box." Throughout the rest of the home, Hernandez observed more trash and pet waste, electrical wiring accessible in the children's room, stained mattresses on the floor, and a hole in a bedroom wall that was open to the outside.[4] Due to the unsanitary conditions in the home, the Department made the decision to conduct an emergency removal of the children.
In September 2021, an agreed Family Plan of Service Agreement was established and made an order of the trial court. The service plan conditioned the return of their children on, among other things:
Following a permanency hearing in June 2022, Robert and Karen were also ordered by the trial court to complete psychological evaluations and to follow all recommendations, to complete parenting classes for large families, and to complete individual and family counseling.
At the final hearing, Britney Williams, the permanency case manager for Robert and Karen during the past eighteen months, testified about the parents' efforts to comply with the court's orders. A monitored return of the children to the residence was attempted in May 2022, but cut short because, in part, Sabrina complained Robert hit her in the head with a belt, causing a cut, bruising, and swelling. Robert and Karen denied the allegation, replying that Sabrina had fallen outdoors and struck a rock.
Moreover, Williams testified about the parents' requirements to provide and maintain a safe, sanitary, and stable home for a minimum of six months. The home's living conditions tended to temporarily improve as scheduled hearing dates neared, but quickly fell back into "disarray" in later days. Williams visited the residence in September and October 2022 between the dates of the permanency hearing and final hearing.[6]Outdoor photographs in September depicted broken windows, piles of old lumber, broken lumber planks, weeds several feet high, and abandoned equipment. Images inside the home revealed more filth: urine-stained carpets and floors, overflowing trash cans, pet waste throughout, and countertops piled high with dirty dishes. Portions of the ceiling had collapsed due to the elements and lack of maintenance. At least one open electrical box remained. Williams observed a gasoline can inside the home and that some of the home's occupants smoke cigarettes.[7]
Williams also testified that neither Robert nor Karen completed all of their court-ordered services. She testified that Robert failed to complete individual counseling, parenting classes, and had not provided proof of a legal source of income for a six-month period. She testified that Karen failed to complete individual counseling, attendance at a women's group, and parent counseling. According to Williams, both Robert and Karen failed to provide and maintain a safe, sanitary, and stable home for a minimum of six months as required by the service plan.
At the conclusion of the hearing, the trial court terminated Robert's and Karen's parental rights. The court found that clear and convincing evidence supported the conclusion that Robert and Karen failed to comply with the court's orders necessary to obtain the return of their children. The trial court also found by clear and convincing evidence that termination of their parental rights was in the children's best interest. This appeal followed.
The standards by which we assess the sufficiency of evidence is well-established and require no detailed elaboration here.[8] Under Subsection (O), "[t]he court may order termination of the parent-child relationship if the court finds by clear and convincing evidence: [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." TEX. FAM. CODE ANN. § 161.001(b)(1)(O); In re A.L.R., 646 S.W.3d 833, 837 (Tex. 2022). Relying in large part on a decision by the Fourteenth Court of Appeals,[9] Robert and Karen assert that their "substantial" or "material" compliance with their service plans should be sufficient to avoid termination of their parental rights under section 161.001(b)(1)(O), and the best interest findings, and that the Court should order a new trial. We disagree.
Under this Court's jurisprudence, we "undertake a strict approach to subsection (O)'s application." In re A.A., 635 S.W.3d 430, 441 (Tex. App.-Amarillo 2021, pet. granted); In re J.C., No. 07-16-00024-CV, Tex.App. LEXIS 4726, at *2 (Tex. App.- Amarillo May 4, 2016, no pet.) ( that subsection O "does not contemplate or permit a certain degree of non-compliance). The parent must comply with all of the court ordered provisions to avoid the application of § 161.001(b)(1)(O). Nor does the statute allow for excuses.") (citations omitted). "Substantial compliance is not the same as complete compliance." In re S.J.R.-Z, 537 S.W.3d 677, 690 (Tex. App.-San Antonio 2017, pet. denied). In 2022, the Supreme Court held that notwithstanding a parent's completion of some service plan requirements, legally sufficient evidence supported upholding termination of parental rights pursuant to subsection O because the parent failed to complete one requirement (i.e., maintain a safe and stable home environment, which included providing safe home conditions). In re J.W., 645 S.W.3d 726, 742 (Tex. 2022).
The evidence shows, and Robert and Karen concede, that the parents failed to meet all of the service plan's requirements. This is particularly true regarding the poor conditions of the home, which are similar to those found by the Supreme Court in J.W. to evidence a failure to maintain a safe and stable home environment. Id. at 736. We find that legally and factually sufficient evidence supports the trial court's finding under subsection O. Appellants' first issue is overruled.
Next Robert and Karen challenge the sufficiency of the Department's evidence to prove that termination of parental rights is in the best interest of the children. To assess the trial court's best interest determination, we may consider the factors itemized in Holley v Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).[10] While the Holley list "is by no means exhaustive, [it] does indicate a number of considerations which either have been or would appear to be pertinent." Holley, 544 S.W.2d at 372. "The absence of evidence about some of these considerations would not preclude a fact-finder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." In re C.H., 89 S.W.3d 17, 27 (Tex. 2005). "Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the...
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