In the Interest of K.R., a Child v. the State of Texas

Opinion filed July 11, 2024

In The

Eleventh Court of Appeals
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No. 11-24-00014-CV
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IN THE INTEREST OF K.R., A CHILD

On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 10973-CX

MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and father of K.R. See TEX. FAM. CODE ANN. § 161.001 (West
Supp. 2023). The father filed a notice of appeal.1 On appeal, the father presents two
issues in which he challenges the sufficiency of the evidence, offered by the Texas
Department of Family and Protective Services (the Department), to support the trial

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Because only the father has appealed the trial court’s order of termination, we limit the scope of
this opinion to only those facts related to the trial court’s findings as to the father.
court’s findings under subsections (E) and (O). We affirm in part, and we reverse
and remand in part.
Termination Findings and Standards
The termination of parental rights must be supported by clear and
convincing evidence. FAM. §§ 161.001(b), 161.206(a), (a-1) (West 2022). To
terminate one’s parental rights under Section 161.001, it must be shown by clear and
convincing evidence that the parent has committed one of the acts listed in
Section 161.001(b)(1)(A)–(V) and that termination is in the best interest of the
child. Id. § 161.001(b). In this case, the trial court found that the father had
committed two of the acts listed in Section 161.001(b)(1)—those found in
subsections (E) and (O). The trial court also found that termination of the father’s
parental rights would be in the best interest of the child. See id. § 161.001(b)(2).
To determine if the evidence is legally sufficient in a parental termination
case, we review all of the evidence in the light most favorable to the finding and
determine whether a rational trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
To determine if the evidence is factually sufficient, we give due deference to the
finding and determine whether, on the entire record, a factfinder could reasonably
form a firm belief or conviction about the truth of the allegations against the parent.
In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We note that the factfinder is the sole
arbiter of the credibility and demeanor of witnesses. In re A.B., 437 S.W.3d 498,
503 (Tex. 2014) (citing In re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (1) the desires of the child, (2) the emotional and physical needs of the
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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 a proper one, and (9) any excuse for the acts or omissions of the parent. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
Procedural and Factual Background
Jessica Edwards, the Department investigator, testified that K.R. was removed
at birth because he and the mother both tested positive for methamphetamine. The
mother also tested positive for marihuana. K.R. was born on February 10, 2023.
Edwards also testified that the mother indicated the father was responsible for getting
her into methamphetamine use.
Kristian Castro, the 2INgage permanency case manager, testified that the
father was required to submit to a drug test, but that the test was never completed.
Castro also testified that the father did not complete all the requirements of his
service plan.
It appears from the record that the father was arrested and convicted for
possession of methamphetamine. The initial offense occurred on August 28, 2022,
almost six months before the birth of K.R., and the sentence was imposed on
September 28, 2023. Castro indicated that she thought the father was in the Taylor
County Jail because of a DWI charge, but the judgment of conviction indicates that
he was sentenced for the possession of methamphetamine.

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At the conclusion of the hearing, the Department informed the trial court that
it intended to ask for termination of the father’s parental rights based on subsections
(E) and (O). The trial court requested further explanation as to subsection (E). The
Department indicated only that the father was the one to introduce the mother to
methamphetamine. The trial court terminated the parental rights of the father based
on subsections (E) and (O) and found termination to be in the best interest of the
child.
In two issues on appeal, the father challenges the findings made under
subsections (E) and (O). The father does not challenge the best interest
determination made by the trial court.
Analysis
Endangering Conduct
In the father’s first issue, he challenges the findings made by the trial court
under Section 161.001(b)(1)(E).
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 34 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and
conscious course of conduct by the parent is required. In re D.T., 34 S.W.3d 625,
634 (Tex. App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228
(Tex. App.—Eastland 1999, no pet.). The offending conduct need not be directed at
the child, nor does the child actually have to suffer an injury. In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009). With respect to the sufficiency of the evidence to
support a finding under subsection (E), “endangering conduct is not limited to
actions directed towards the child.” Id. (citing Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987)). The endangering conduct may include the
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parent’s actions before the child’s birth and may relate to the parent’s actions while
the parent had custody of other children. Id.; In re S.T., No. 11-19-00363-CV, 2020
WL 2610393, at *3–4 (Tex. App.—Eastland May 18, 2020, pet. denied) (mem. op.)
(upholding finding under subsection (E) based upon parent’s conduct with other
children).
Sufficient evidentiary support for a finding under subsection (E) would
ordinarily be enough to uphold the termination of the parental rights of the father.
See In re N.G., 577 S.W.3d 230, (Tex. 2019) (“To affirm a termination judgment on
appeal, a court need uphold only one termination ground—in addition to upholding
a challenged best interest finding—even if the trial court based the termination on
more than one ground.”). However, we conclude that the evidence presented at trial
by the Department is insufficient to support termination of the father’s parental rights
under subsection (E).
If the Department has clear and convincing evidence that a parent has
committed one of the acts listed in Section 161.001(b) and that termination of that
parent’s rights is in the best interest of the child, then it must diligently offer such
evidence to the trial court and the evidence supporting both must be present in the
record on appeal. The only evidence the Department relies on to support the
termination of the father’s parental rights under subsection (E) was that the father
was responsible for introducing the mother to methamphetamine use and that his
incarceration at the time of the final hearing was for possession of
methamphetamine. In this regard, the record indicates that the father committed the
offense of possession of methamphetamine more than five months before K.R. was
born. Edwards, the Department investigator, testified that the following exchange
occurred when the mother was confronted with the intake results at the hospital:
[EDWARDS]: I asked [the mother] if she was aware why [the
drugs] would be there. She did say yes. At first, she said that she did

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use methamphetamine a few weeks ago, then later on, she did admit to
using a couple of days prior to having her child.

[THE DEPARTMENT]: When you were discussing with the
mother her methamphetamine use, who did she say got her into the
methamphetamine use?
[EDWARDS]: [Appellant].

The Department presented no testimony that related to when the father “got
[the mother] into the methamphetamine use.” There was no testimony from the
mother or the father or other evidence verifying that statement, and there was no
evidence that the father knew the mother was pregnant or that she was using
drugs during her pregnancy. See Interest of A.G., No. 11-19-00178-CV, 2019
WL 5617640, at *2 (Tex. App.—Eastland Oct. 24, 2019, pet. denied) (mem. op.)
(where the child was born after the appellant’s incarceration and there was no
evidence that the father knew about the child or the mother’s drug use, the evidence
was insufficient to uphold a finding under subsection (E)). But the record includes
mention of the mother’s drug use as early as 2002. There was no evidence presented
by the Department of any drug use by the father when he was in K.R.’s
presence. Further, the only criminal conviction proven was the possession of
methamphetamine, which occurred more than five months before K.R. was born.
See id. With only a single conviction occurring prior to the child’s birth and no
evidence the father knew of, or encouraged, the mother’s drug use during pregnancy,
we conclude that the evidence is insufficient to support the trial court’s finding
under subsection (E), which requires a conscious course of conduct.2 See FAM.

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The Department points to multiple cases for the proposition that a parent’s conduct need not be
directed at the child to constitute endangerment yet may still showcase a pattern of conduct which would
be ill-disposed to child-rearing. Among those cases listed are: J.O.A., 283 S.W.3d at 345–46; C.H., 89
S.W.3d at 28; Boyd, 727 S.W.2d at 533; In re A.M., 495 S.W.3d 573, 579 (Tex. App.—Houston [1st Dist.]
2016, pet. denied); In re N.K., 399 S.W.3d 322, 330 (Tex. App.—Amarillo 2013, no pet.); and In re M.R.,

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§ 161.001(b)(1)(E); D.O., 338 S.W.3d at 34; D.T., 34 S.W.3d at 634. Thus, the
evidence presented does not satisfy the clear and convincing standard of proof
required to prove that the father engaged in conduct or knowingly placed the child
with someone that engaged in conduct, which endangered the child’s physical or
emotional well-being. We hold that the evidence is not legally sufficient to uphold
the trial court’s finding under subsection (E). We sustain the father’s first issue.
Failure to Comply with Court Order
In the father’s second issue, he challenges the findings made by the trial court
under Section 161.001(b)(1)(O). Pursuant to subsection (O), the Department has the
burden to prove by clear and convincing evidence that Appellant failed to comply
with the requirements and provisions of a court ordered plan which specifically set
out the necessary actions that the parent must complete in order for the child to be
returned to the parent. See FAM. § 161.001(b)(1)(O). Subsection (O) additionally
requires that the child must have been in the temporary or permanent managing
conservatorship of the Department for no less than nine months, and that the child
was removed for abuse or neglect under Chapter 262. Id. A trial court may not order
termination under subsection (O) based on the parent’s failure to comply with a
specific provision of a court order if the parent proves by a preponderance of the
evidence that (1) the parent was unable to comply and (2) the parent made a good

243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.). However, these cases are distinguishable
from the instant case as they involved appellants who either knew their child had been removed and
continued to participate in illicit activities, or they conducted such activities within the home. Many also
included extensive criminal records. Moreover, while we certainly consider a parent’s imprisonment on
the issue of endangerment, a parent’s imprisonment alone does not constitute sufficient evidence to support
a finding under subsection (E) under the clear and convincing evidence standard. See Boyd, 727 S.W.2d at
534; see also Interest of J.F.-G., 627 S.W.3d 304, 312–13 (Tex. 2021) (citing Boyd, 727 S.W.2d at 533–
34). Here, the evidence of the father’s criminal conduct prior to the birth of K.R.—and with no evidence
that he knew of the mother’s pregnancy—is distinguishable from those cases relied upon by the Department
and is insufficient to support a finding under subsection (E) in this case.
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faith effort to comply and failure to comply is not attributable to the fault of the
parent. See id. at § 161.001(d).
The Department presented the following three witnesses at the final hearing:
(1) Edwards, the Department investigator, who testified that she had no contact with
the father and testified that the mother was unable to provide to her any contact
information for the father; (2) M.M., K.R.’s foster mother, who provided no relevant
testimony with regard to K.R.’s father; and (3) Castro, the 2INgage permanency case
manager, who provided all of the testimony related to the father’s compliance or
noncompliance with the service plan that was incorporated into the trial court’s
status hearing order.
At the time of the final hearing, the father was in jail but anticipated being
released in sixty days. At the outset of the final hearing, his attorney asked that the
hearing be continued so that the father might have time to complete required
services. The father was present for the final hearing, but he did not testify. The
mother did not appear at the hearing, nor did she testify.
Castro testified that she had had little contact with the father. Castro testified
that the only phone number she had for the father was disconnected and that she
never obtained an updated number. The testimony at the final hearing largely
focused upon the mother; there is no evidence as to when or if the father ever lived
with the mother, particularly during her pregnancy with K.R and, as we have said,
there is insufficient evidence of conscious conduct by the father for a finding under
subsection (E). Castro testified that she first met with the father in March 2023 and
shortly thereafter the father was incarcerated. The father’s status hearing was reset
from April 6 to April 28, but he was incarcerated before this status hearing could
occur.
The only request that Castro made to the father was for the father to submit to
a drug screen. Castro sent this request in a message on Facebook messenger because
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his phone was not working, but there was no response. Castro spoke to the father
after the status hearing in November 2023 while he was confined in the Taylor
County Jail. At that time Castro did not request that the father submit to a drug
screen. Castro admitted that the father sent her letters, but he received nothing in
response from her. Castro additionally could not recall if she gave the father her
card with her contact information when she talked to him in March 2023. Since
November 2023, Castro had no more contact with the father—no phone call was set
up, no visits were made to him, and no letters were sent to him. When he was
transferred to the Taylor County Jail based on a bench warrant, Castro did not visit
him, and she had no communication with the father in the thirty days prior to the
termination hearing.
Importantly, there is no clear evidence that the father received a final copy of
the service plan. In this regard, Castro testified that she met with the father in March
2023, 3 prior to his incarceration, and that they “discussed what kind of services
would be on the plan. And a copy was given to him at that [March] meeting.” The
father did not yet have an attorney. The evidence shows that the father was not
involved in the preparation of the service plan “agreement,” that the plan was not
signed by a 2INgage worker until April 2023, that the father did not sign the plan,
and that it was not made or incorporated into a trial court’s order until the May 8,
2023 status hearing. Thus, the service plan provided to the father in March—what
written draft of the plan, if any, was given to the father by Castro is unknown—was
not proven, but in the chronology given by Castro, it could not have been the final
plan ordered by the trial court. The evidence confirms that no efforts were made by
the Department to facilitate any visitation between K.R. and the father. The
Department did not know whether the father maintained a legal source of income

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According to her testimony, this meeting occurred “sometime between” the February adversary
hearing and the April status hearing.
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during the pendency of the case. The Department knew that the father had housing.
Castro testified that the father complied with a visit from the Department. The father
allowed Castro to visit his home and although she made suggestions for things to
repair, she did not testify that the home was unsafe. Castro testified that there were
no reports of any abuse or domestic violence in the father’s home.
While Castro testified that the father did not inform the Department of
residency changes, participation in counseling, or his attending psychological
evaluations, there was no evidence presented that the father was given a written copy
of the final, court-ordered final service plan that required him to do so, nor was there
any explanation of why the father did not engage in services other than he was in
incarcerated and the Department did not know of his whereabouts. The father never
refused a psychological evaluation; he never refused to submit to a drug assessment;
he was never ordered to have visitation with K.R.; and, he was never referred for
individual counseling by the Department. Castro admitted that she did not refer the
father to any services or providers from which he could get these services completed
and she testified that the father “was never ordered any visits with [K.R.]” Castro
also admitted that the father could not have completed the drug assessment without
the referral, and that the father signed all releases requested of him. The father did
complete the parenting packet while he was confined in the Taylor County jail.
While there, he sent letters to Castro but she testified that she did not receive them
until November 2023. Castro could not recall the last time that she had contact with
the father. Yet, she asked the trial court to terminate the father’s parental rights
because K.R. did not have a bond with the father.
“Terminating the parent-child relationship for the parent’s failure to comply
with a court-ordered service plan necessarily requires a nuanced assessment of the
parent’s conduct and progress toward plan completion in light of the totality of the
plan’s requirements and overall goal.” In re R.J.G., 681 S.W.3d 370, 381 (Tex.
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2023). “Subsection (O) contemplates direct, specifically required actions.” In re
A.L.R., 646 S.W.3d 833, 837 (Tex. 2022). “We eschew vague plan requirements
and have emphasized that the court’s order describing the parent’s necessary actions
‘must be sufficiently specific to warrant termination of parental rights for failure to
comply with it.’” R.J.G., 681 S.W.3d at 378 (quoting N.G., 577 S.W.3d at 238).
“[T]ermination is not automatic or required, even if the Department properly
proves a parent failed to comply with a specific plan provision.” Id. at 379 (citing
FAM. § 161.001(b)(1)(O) (“The court may order termination of the parent-
child relationship if the court finds by clear and convincing evidence . . . that the
parent has . . . failed to comply.” (emphasis added))). “[T]he trial court bears the
ultimate responsibility for determining whether that finding supports termination.”
Id. Therefore, it is only the violation of “material” requirements of a plan that justify
termination under subsection (O). Id. (citing In re J.F.C., 96 S.W.3d 256, 278–
79 (Tex. 2002) (affirming termination under subsection (O) based on parents’
failure to comply with “material provisions of the trial court’s orders”); In re T.L.B.,
No. 01-21-00081-CV, 2021 WL 3501545, at *6 (Tex. App.—Houston [1st Dist.]
Aug. 10, 2021, pet. denied) (mem. op.) (affirming termination under subsection (O)
based on mother’s failure to comply with “the material requirements of the plan”);
In re A.P., No. 13-19-00342-CV, 2019 WL 6315429, at *7 (Tex. App.—Corpus
Christi–Edinburg Nov. 26, 2019, no pet.) (mem. op.) (affirming termination under
subsection (O) based on mother’s failure to comply with “material provisions of the
service plan”); In re A.D., 203 S.W.3d 407, 411–12 (Tex. App.—El Paso 2006, no
pet.) (affirming termination under subsection (O) based on mother’s failure to
comply with “material requirements” of her plan)). “[I]f the noncompliance is trivial
or immaterial in light of the plan’s requirements overall, termination under (O) is
not appropriate.” R.J.G., 681 S.W.3d at 379.

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On appeal, the father argues that he was not given a reasonable opportunity to
comply with the service plan due to the inaction on the part of the Department in
making all the necessary referrals for services. We conclude that at least two of the
father’s failed compliance complaints are indeed a result of inaction by the
Department to make the required referrals: individual counseling and a
psychological evaluation. Additionally, the Department never attempted to schedule
visitations, and thus the noncompliance with regular visitations cannot be solely
attributed to a failure on the father’s part. The father did allow the Department to
visit his home and he completed a parenting class while he was incarcerated. There
was no evidence presented about the father’s source of income, and the Department
complained that the father failed to notify them of any change of address. The latter,
however, appears to have been due to a miscommunication rather than a lack of
effort on the part of the father as he did send letters to Castro, she just did not receive
them for several months. The record reflects that the father became incarcerated
sometime after April 6 but before April 28, 2023.
Thus, the crux of the father’s remaining alleged noncompliance centers
around a failure by the father to submit to a drug screening test prior to his
incarceration. Castro testified that this failure delayed the referral for a drug
assessment as required by the service plan. But the Department admittedly did not
refer the father to any services or providers from which he could get these services
completed. The Department prepared the service plan on March 23, 2023, and the
service plan was signed by Castro and a supervisor on April 5, 2023. The father’s
signature does not appear on this document. Although incarceration is not a legal
excuse or defense to a parent’s failure to comply with a service plan order, we cannot
say here that his failure to comply is solely the result of the father’s inaction. See In
re L.L.N-P., No. 04-18-00380-CV, 2018 WL 6069853, at *3 (Tex. App.—San
Antonio Nov. 21, 2018, pet. denied) (mem. op.). There is no admission by the father
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that he was using illegal drugs during the pendency of the removal of K.R., or that
he continued to do so after K.R. was born. Although there is evidence in support of
termination under subsection (O), we cannot say that the evidence offered by the
Department establishes by clear and convincing evidence that the father refused to
participate in the court ordered service plan to the extent that those failures, under
these circumstances, should result in the termination of his parental rights.
Accordingly, we sustain the father’s second issue in part to the extent that he
challenges the factual sufficiency of the evidence supporting termination under
subsection (O).
This Court’s Ruling
We reverse the trial court’s termination order insofar as it terminated the
parental rights of K.R.’s father, and we affirm the order of the trial court in all other
respects. We remand this cause to the trial court for further proceedings consistent
with this opinion with respect to K.R.’s father. Any proceeding on remand must be
commenced within 180 days of this court’s mandate. TEX. R. APP. P. 28.4(c).

W. BRUCE WILLIAMS
JUSTICE
July 11, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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