Summary
reversing termination order and rending judgment denying Department's petition for termination of father's rights on sufficiency grounds
Summary of this case from In re Z.R.M.Opinion
04-22-00131-CV
08-17-2022
IN THE INTEREST OF M.A.D.V. and T.J.T., Children
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2020PA00560 Honorable Linda A. Rodriguez, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Lori I. Valenzuela, Justice.
MEMORANDUM OPINION
Lori I. Valenzuela, Justice.
In the underlying proceeding, the parental rights of three parents were terminated as to two children. One of the parents, T.T., appeals the trial court's order terminating his parental rights to his son, T.J.T. During a bench trial held over two days, several witnesses testified. Following the hearings, the trial court signed an Order of Termination terminating T.T.'s parental rights to T.J.T. on two predicate grounds, specifically section 161.001(b)(1) subsections (O) and (P), and on the ground that termination of T.T.'s parental rights was in T.J.T.'s best interest. In two issues on appeal, T.T. asserts the evidence is legally and factually insufficient to support the two predicate grounds for termination and the best-interest finding. We reverse that portion of the trial court's Order of Termination terminating T.T.'s parental rights to T.J.T., render judgment denying the Department's petition for termination of T.T.'s parental rights to T.J.T., and affirm the Order of Termination in all other respects.
To protect the privacy of minor children, we use initials to refer to the children and their biological parents. Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8(b)(2). T.J.T. was born on December 21, 2019. The other child who was the subject of the underlying proceeding is M.A.D.V.
The termination hearings occurred in October and December of 2021.
BACKGROUND
During the October and December 2021 hearings, several witnesses testified, including T.T. Ms. Rebecca Blain, the Department caseworker originally assigned to the case, testified the children were removed on March 10, 2020 on allegations the mother was using marijuana while pregnant. T.J.T. was born positive for marijuana. During the investigation, the mother went to jail on an assault charge and the children were left with their maternal grandmother. Because the grandmother was living in hotels and did not have the resources to care for the children, the children were removed and placed in foster care. However, the children were removed from the initial foster home and, in September 2021, placed in another foster home where they were residing at the time of trial.
Blain was no longer the caseworker as of August 2021.
Blain testified T.T. submitted to a DNA test on July 23, 2020 that revealed he was T.J.T.'s father and T.T. was informed of the results in either July or August 2020. The trial court signed an Adjudication of Parentage on September 10, 2020. Blain said that although T.T. lived further away from the foster parents (in New Braunfels and Kyle), he made an effort to see T.J.T. and T.T. did not miss any of the visits. She said T.T. completed many of his services, including a psychological evaluation and obtained stable housing and employment. After being informed he was T.J.T.'s father, T.T. "almost immediately" completed his parenting class. She stated visitation went "very well," T.T. and T.J.T. had bonded, and T.J.T. was happy when he saw his father. Beginning in April 2020, T.T. was allowed weekly visits with T.J.T., which he attended about seventy-five percent of the time. She said T.T. would have been offered more frequent visits if he had produced "a clean hair follicle [result], but he had not throughout the entire duration of the case." She said it was Department policy to offer one hair follicle test every three months.
Blain said T.T. was in the process of completing his substance abuse assessment, and he would drug test "the majority of the times" he was asked to go, usually within a day or two of being asked. She explained that sometimes T.T. needed to go after work but, because the testing center was closed, she allowed him extra time to take the test. Blain had T.T. submit to six urine analysis tests, three of which were in January, April, and June of 2021, and all were negative. She also had T.T. submit to three hair follicle tests. She said she was surprised a June 26, 2021 hair follicle test showed positive because it was inconsistent with his having been clean and sober.
The trial court admitted into evidence records of three hair follicle drug tests taken on April 27, 2021, June 21, 2021, and October 2, 2021. On April 27th, appellant tested positive for marijuana; on June 21st, he tested positive for methamphetamine (at a level of 9,154) and marijuana; and on October 2nd, he tested positive for methamphetamine (at a level of 3,747). The urine analysis test on June 26th was clean. According to Blaine, the Department used hair follicle tests because methamphetamines will show up for a longer period in those tests as opposed to a urine analysis test. Blain was not aware of the October 2nd tests, nor of any other tests after June 2021.
Blain said T.T. did not acknowledge a drug problem and he told her he did not use any drugs and the only reason he could have tested positive for methamphetamines was because he took a prescription pain pill "from somebody else, because he had a toothache." She did not believe T.T. understood his drug abuse problem and he was in denial, and, although it appeared his usage had "slowed down," the last test showing positive for methamphetamines indicated he had relapsed. Blain did not believe T.T. had made the changes necessary for reunification with T.J.T. She said T.T. told her the results of the hair follicle tests were false positives because he did not use drugs. As for the marijuana-related test results, T.T. could not explain why the urine analysis was negative but the hair follicle was positive. Blain expressed concerns about the legitimacy of the urine analysis tests, T.T.'s former wife ("Lynelle") telling her that T.T. was dealing drugs, and that he had asked their son to produce urine for a drug test.
Victoria Caylor, a professional counselor testified T.T. had been her client since October 18, 2021, when he came to her for his mental health assessment. She said T.T. denied using drugs, which concerned her. Caylor's treatment plan for T.T. included treating his situational depression, helping him make better decisions and being accountable for his decisions, and to deal with issues involving substance abuse, parenting, and anxiety. As of the date of trial, she had met with T.T. for three sessions. Caylor said she received the referral from the Department in March 2021; sent the intake packet to T.T. on June 28, 2021; received the packet back from T.T. on August 10, 2021; and met with him for the first time October 18, 2021. Caylor testified that the length of time T.T. took to return the intake packet concerned her because "[i]t was quite a long time for someone that supposedly wants their child."
Over her three sessions with T.T., Caylor did not see any significant progress, he made no admission regarding drug use, and she had hoped his progress "would be a little faster considering the case has been open a couple of years." She said she did not find T.T. to be truthful and honest with her about his substance use. She was aware Lynelle had told the caseworker that T.T. had asked Lynelle's son to provide urine for a urine analysis test, and based on this, she believed T.T. was still using drugs and wanted someone to submit urine under his name. Therefore, she could not report to the court that T.T. had addressed the Department's concerns, and she could not make a positive recommendation for reunification at the time of trial. She conceded that the case began on March 20, 2020, but she did not receive the referral until a year later on March 11, 2021, and she believed the delay was caused by the paternity testing. She also agreed it took her four months to send the intake packet to T.T. and the delay was due, in part, to "telephone tag" because he kept changing his telephone number.
On a positive note, Caylor said T.T. was engaging, he answered questions, and he admitted to her he did not have a bond with his son because he was allowed to see T.J.T. only for an hour. Although Caylor believed T.T. could have done more, she testified that T.T. attending seventy-five percent of his visits showed an intent to have a relationship with his son. She agreed the first test showing methamphetamine at a level of 9,000 and then three months later a test showing the level at 3,000 may indicate he was not using any methamphetamine and the drug was simply still in his system three months later, or he continued to use but at a lesser quantity.
Sydney Sherman, a licensed chemical dependency counselor intern with Elite Counseling, testified T.T. was his client with whom he had been working with since May 4, 2021. Sherman said T.T. was required to attend fifteen group therapy sessions, at a minimum, to meet the requirements of the program, and he had not yet completed that requirement. T.T. also was required to attend seven once-monthly individual sessions of which he had completed five. When asked whether T.T. had addressed his drug issues, Sherman replied,
To an extent. The issue that I have right now where I'm not able to move him forward is that there was a positive result for methamphetamine that is unaccounted for.
I have not been able to figure out with [T.T.] what happened, how that happened, and be able to have him accountable for that result.
So I have not been able to move him forward because we can't address it if we don't know what happened.
He said T.T. denied using methamphetamine and did not know why the tests were positive for drugs. T.T. told him the positive result "could have occurred from like [sic] contact on money." T.T. admitted to past use of marijuana, but not recent use. Sherman said T.T.'s refusal to admit to his drug use prevented them from moving forward and has kept T.T. in services for so long. Sherman said Elite had sent T.T. for drug testing six times, the latest on October 15th. T.T. never refused a test. Sherman said the tests were only urine analysis and they were all negative. Sherman was aware of the positive hair follicle tests and said it did not make sense to him why the hair follicle tests were positive and the urine analysis tests were negative. Sherman agreed T.T. attended the sessions, but also stated there had been no progress addressing T.T.'s substance abuse. Sherman stated
I would say that he has attended and he has done everything that has been asked of him in our program as far as attending 12-step meetings; attending the group counseling; attending individual counseling; but we have not been able to break through and figure out what happened with those hair follicle results.
Sherman testified it was possible for someone to ingest a "great deal of drug [sic] at one time" and then, after no ingestion, the hair follicle test would still show the presence of the drug. But with a urine analysis, the methamphetamine is out of the system quickly. As for marijuana, that drug stays in the system longer; therefore, if the number drops significantly then usage probably also drops significantly. Sherman's concern about T.T. was his lack of accountability for the possibility that methamphetamine entered his system.
During Sherman's sessions, T.T. did not appear dangerous, at times he appeared agitated, he was attentive, and did not appear to be under the influence of anything. But for T.T.'s refusal to admit to drug use, T.T. appeared "fairly normalized" to Sherman. However, he conceded he had worked with other clients who were using drugs but appeared to work and function normally in society.
Dietra Marquez, the current Department caseworker, stated she was assigned the case in September 2021. She testified T.T. had not completed his service plan, he was still engaged in services, and he still lacked a positive recommendation from his therapist and the completion of drug treatment. She agreed these were probably the most important components of the service plan. She also said T.T. had not taken any responsibility for his part in the children still being in care, nor had he admitted to using drugs, which was concerning to her.
Marquez said T.T. told her the initial positive test resulted from him "handling dirty money" and the drug "somehow got into his pores." T.T. told her that if he was sent for another test, the money would not have touched his hair, but he refused to go to the same lab because he blamed the lab and thought the lab falsified the results. T.T. also did not want Marquez to select the lab because he thought she had an "inside person" who would alter the test. Marquez allowed T.T. to select the lab for the October 2nd test, which was positive for methamphetamines.
Marquez agreed the case was initiated because of the behavior of children's mother and not because of T.T. She conceded that as of September 2021, the Department's goal was to terminate the parent-child relationship for all parents and there had been no change in circumstances to foster reunification between T.T. and T.J.T. She did not know where T.T. lived and never asked to visit his home. She also did not know how many children T.T. had and had not asked T.T. for the names of his other children. Marquez said the allegation that T.T. asked his son to provide urine concerned her because it indicated T.T. intimidated his children to help him in this case and she was concerned T.T. continued to use conspiracy theories as the reason for his positive drug tests. Returning to the lab tests, Marquez testified all three reports were based on hair follicles taken from T.T.'s underarm and/or chest. Marquez said the lab determined the source of the hair follicle, not her.
Lynelle testified T.T. was her former husband, the father of her four children, and the last time they resided together was in 2018. When they were together, T.T. sometimes used drugs. She was upset with T.T. for asking her son to provide his urine and she said T.T. told her he was not using drugs but the drugs stayed in your system for a time and he wanted to make sure he was clean, so he was using their son as a "precaution."
The final witness to testify was T.T. He stated T.J.T.'s mother told him she was pregnant and he might be the father. When the mother identified him to the Department as the father, the Department contacted him. The paternity test, which he asked for, showed him to be T.J.T.'s father. He said Blain never gave him a family service plan. He said he asked Blain if she wanted to visit his home but she never answered him. He wanted T.J.T. placed with Lynelle. He did not remember asking his son to provide urine for an analysis. He admitted to marijuana use "on and off," but said he had stopped as of last year. He denied using methamphetamine. He stated he was around people who used methamphetamine and he speculated that they may have put methamphetamine in his marijuana. He was willing to take a drug test. He wanted his son with him but he knew the Department thought he was a drug addict. But he was willing to take another drug test because an "honest test" would show he was clean.
He denied playing phone tag with his counselor and explained he had two telephone numbers both of which he gave to Blain. When asked what he learned from his drug counseling, T.T. replied,
A. Well, I learned to not be around drugs because it may get in your system, and then they're going to say that you a user because of something that's in your system. You should watch the people that you hang around, not have a circle that you can't control and you don't know anyone of them. They, you know, not just friends, but what they do as they go home and throughout their day and the type of person that they are.
Q. And when you mentioned earlier that you - the test result for the methamphetamines, was that at a time that it could possibly have happened because you were around people that were using methamphetamines? You clearly did not use this train of thought of not being around people that uses drugs, correct?
A. Well, I was on the bus at the time, so I can't really say who I was around. I asked for a lot of cigarettes from certain people. I don't know what people put in their cigarettes now. I'm understanding that it may not be things that you know of.
I go to a lot of mom and pop stores where I get a lot of dirty money and I get a lot of money with white powder on it and I get a lot of money with blood on it. I got a lot of dirty money throughout this - this pandemic.
You know, just like people getting a virus from touching things, I assume that by me touching something and it getting into my streams, maybe that was the case thereof.
But like I said, last year in 2020, you know, I wasn't really aware about who I was around. So I may have been around those type of people that have done these things and - you know, like I wasn't really watching where I was at, and so it may have gotten into my system.
And maybe they took the test hair samples from that year of 2020 and not the year of 2021 like they should have.
Q. Okay. So is it your testimony to this Court that you don't use any drugs at all?
A. No. No, ma'am, I didn't use any drugs.
Last year I used marijuana and I was around a lot of people that may have been lacing my marijuana when they roll it to me with methamphetamine, but not that I know of.
If I was dirty in any way of this test, I would gladly say I was dirty. Because the drug class that we're in, she wants you to acknowledge when you mess up. It's not - it's not wrong that you backslide or you did something wrong. They don't never chastise you for making a mistake from the cases I've been seeing. A lot of people came forward and said I was wrong and I did this, and they treat them as equal. They doesn't [sic] treat them no different.
So I would not sit here and lie to make myself look better, but in the end I'm making myself look worse because no one is not [sic] believing me now because you're lying and you don't want to admit, but I can't admit to something that I'm not using.
That's why I say, well, maybe they took tests from 2020 and ran those hair follicles to get this type of test. But as far as this year, ma'am, my mother still alive in New Orleans, I swear on her life. I never use methamphetamines this year. I never use.
When asked why he provided only urine for an analysis and not hair follicles, as ordered, T.T. said the lab never took hair follicles, he did everything the person at the lab told him to do, and he was "persecuted by the CPS lady telling [him] that [he] was wrong because [he] didn't take the test that wasn't given to [him]."
At the close of evidence, the children's attorney ad litem, Arthur Rossi, stated both children are in foster care and the foster parents may consider adoption. Rossi acknowledged T.T.'s other children had apparently been raised in a manner that brought them successfully into adulthood and they were doing well. He agreed with T.T.'s attorney that Lynelle's family should have been investigated as a placement. Rossi stated,
The fact is that the only reason [T.T. is] here is because of actions by mom. He wasn't aware that he had a child at the time, and you just don't interfere with somebody else's child.
And that's just the reality of the circumstances where, you know, he had other children. And, you know, it wasn't like she [T.J.T.'s mother] went to him and said, Let's do a blood test. Let's check it out. Let's find out. Let's get this - find out whether you are the dad.
None of that happened.
So the fact is that when he did find out, he did visit with his son. He did spend time with him. That would result in bonding.
Obviously he's here and putting on a case about this. And the only thing holding him up completing his plan, for the most part, is a conclusion that has been reached about drug tests that I don't think anybody ever bothered to read except the lawyers today who . . . looked at this when it was produced and realized that there's something that doesn't make any sense here.
Because if he had gone in to that testing, if he had gone to Elite and said, You know what? I did. I did use meth. And if they put him on a program and he went through the 43 meetings he had and he went through the other portions of the program, they would be happy. They would be cutting him loose right now as long as he was drug testing negative.
And that's the missing component that we have today, drug testing negative.
And a policy of we're not going to drug test you for 91 days, that makes no sense at all to me. This is the one big issue that's there, and he has stuck to his guns and said I was not taking drugs.
So we need that answer. We really do need that answer. And we need to find out whether this child should be placed, overall whether it would be in the child's best interest to be placed with his . . . older siblings, basically.
At the conclusion of the hearing, the trial court terminated the rights of the mother and M.A.D.V.'s father, but ordered additional drug testing for T.T. A hair follicle test conducted on December 17, 2021 was negative, and the nail bed test conducted on December 21, 2021 was negative for methamphetamine and positive for marijuana.
STANDARD OF REVIEW
"Because the natural right between a parent and his child is one of constitutional dimensions . . . termination proceedings must be strictly scrutinized." In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014) (citation omitted). To terminate parental rights pursuant to Texas Family Code section 161.001, the Department has the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX. FAM. CODE §§ 161.001(b), 161.206(a). The Family Code defines clear and convincing evidence as "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." Tex. Fam. Code § 101.007. When, as here, the trial court terminates a parent's rights on multiple predicate grounds, we may affirm on any one ground. In re A.V., 3 S.W.3d 355, 362 (Tex. 2003); In re D.J.H., 381 S.W.3d 606, 611-12 (Tex. App.-San Antonio 2012, no pet.).
In this case, the trial court found evidence of two predicate grounds to terminate T.T.'s parental rights, specifically section 161.001(b)(1) subsections (O) and (P). The trial court also found termination of T.T.'s parental rights was in T.J.T.'s best interest. On appeal, T.T. challenges the legal and factual sufficiency of the evidence in support of each finding.
"In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the 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 and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. "This does not mean that a court must disregard all evidence that does not support the finding." Id. "Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence." Id.
"Our traditional legal sufficiency-or 'no evidence'-standard of review upholds a finding supported by '[a]nything more than a scintilla of evidence.'" K.M.L., 443 S.W.3d. at 112 (citation omitted). However, "[r]equiring only '[a]nything more than' a mere scintilla of evidence does not equate to clear and convincing evidence." J.F.C., 96 S.W.3d at 265 (citation omitted). Thus, our legal sufficiency review in a parental termination case "must take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the [Department] bears the burden of proof." Id. at 265-66.
In a bench trial, such as here, "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (citation omitted). We therefore defer to the trial court's judgment regarding credibility determinations. See id. While we must detail the evidence relevant to the issue of parental termination when reversing a finding based upon insufficient evidence, we need not do so when affirming a verdict of termination. See In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
PREDICATE GROUND FOR TERMINATION SUBSECTION (O)
To terminate parental rights under section 161.001(b)(1)(O), the trial court must find, by clear and convincing evidence, that 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] 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 § 161.001(b)(1)(O).
"To terminate a parent's rights under Subsection (O), the court's order describing the actions necessary to obtain the return of the child must be 'sufficiently specific to warrant termination of parental rights for failure to comply with it.'" In re A.L.R., No. 21-0658, 2022 WL 2183303, at *1 (Tex. June 17, 2022) (per curiam) (quoting In re N.G., 577 S.W.3d 230, 238 (Tex. 2019) (per curiam)). The Department "must write the service plan in a manner that is clear and understandable to the parent in order to facilitate the parent's ability to follow the requirements of the service plan." Tex. Fam. Code § 263.102(d). "The child's parents and the person preparing the original service plan shall sign the plan, and the department shall give each parent a copy of the service plan." Id. § 263.103(b). "The original service plan takes effect when: (1) the child's parents and the appropriate representative of the department sign the plan; or (2) the court issues an order giving effect to the plan without the parents' signatures." Id. § 263.103(d).
"Although the Family Code gives the trial court the discretion to modify the service plan with 'any changes . . . it deems necessary,' and to 'render additional appropriate orders to . . . require compliance with' the service plan, the order must comply with the statute's specificity requirement. A.L.R., 2022 WL 2183303, at *3 (citation omitted). "Subsection (O) contemplates direct, specifically required actions." Id. Thus, "[s]ubsection (O) authorizes termination for failure to comply with a family service plan only when that plan requires the parent to perform specific actions." Id. If a "general order does not 'specifically establish[ ]' the actions that a parent must take . . . violation of the order does not fulfill the ground for termination under Subsection (O)." Id. "A request does not connote a mandatory 'requirement.'" Id. ("The plan's language instead suggests that completion of the requested tasks could be helpful in creating a safe environment for the child, but glosses over its mandatory nature.").
A. T.T.'s Service Plan
The clerk's record in this appeal contains copies of a service plan for each of the three parents. Although each plan affirmatively states the parent participated and signed the plan, none of the plans contain the parents' signatures. However, the court issued an order giving effect to the plan without T.T.'s signature. T.T. testified he was never given a copy of a service plan. T.T.'s service plan, which was incorporated into the trial court's order on September 10, 2020, contains a section entitled "Parent(s) Needs and Actions to Address" underneath which is the following "Goal Statement(s)": T.T. "will demonstrate the ability to be a more active parent in his child's life. He will demonstrate the ability to maintain regular contact with him and be able to provide him with a safe and stable home environment." In A.L.R., the Supreme Court noted, "[t]he service plan's goals, unlike its 'tasks,' are worded as commands. These goals, however, are not part of the checklist establishing specific actions that the parent must complete to obtain the return of the child. A parent could interpret the service plan as requiring that a parent provide the child with a safe environment, with the Department's requested 'tasks' acting as signposts to help achieve that goal. The plan does not alert the parent to the mandatory nature of specific criteria, as it must to serve as grounds for termination under Subsection (O)." Id. at *3.
Following the goal statement is a list of "Parent(s) Needs." Below are those "needs" and the evidence related to each.
1. "The Department is requesting that [T.T.] participate in counseling to address protective parenting skills and the reasons for CPS involvement."
This "request" is not a mandatory requirement. Nevertheless, Caylor testified T.T. had been her client since October 18, 2020, when he came to her for his mental health assessment. As of the date of trial, Caylor had met with T.T. for three sessions, but she did not state how many sessions he was "requested" to attend. Other than a mental health assessment, Caylor did not testify that the purpose of the counseling was "to address protective parenting skills and the reasons for CPS involvement." Furthermore, we note the Department became involved based on the mother's actions and not based T.T.'s actions or omissions. Caylor's "concerns" about T.T.'s alleged drug use led her to state she could not report that T.T. had addressed the Department's concerns at the time of removal and during the case.
The service plan states only that the "Department is worried that if [T.T.] does not become more involved in [T.J.T.'s] life he will continue to be neglected, physically abused and traumatized by" the mother.
2. T.T. "will complete a psychological assessment and follow all recommendations."
Blain testified T.T. completed his psychological assessment. No evidence was adduced that he failed to follow any recommendations.
3. T.T. "will not associate with any known criminals and he will not participate in any criminal activities."
No evidence was adduced that T.T. failed to satisfy this requirement.
4. T.T. "will maintain a stable home free of any health or safety hazards and he will keep all utilities on and in working order."
Blain testified T.T. had obtained stable housing. No evidence was adduced that his home was not free of any health or safety hazards or that he failed to keep all utilities on and in working order. T.T. testified he offered the caseworker a house visit. Marquez said she did not know where T.T. lived and had never been to his home.
5. T.T. "will obtain/maintain employment and provide proof of income to the Department as requested."
Blain testified T.T. was employed. No evidence was offered that proof of income was either requested or refused.
6. T.T. "will attend visits per the court order and as scheduled by CPS. [T.T.] will interact with the child during the visits on an age appropriate level."
Blain testified visitation between T.T. and T.J.T. went "very well," T.T. and T.J.T. had bonded, and T.J.T. was happy when he saw his father. Beginning in April 2020, T.T. was allowed weekly visits with T.J.T., which he attended about seventy-five percent of the time. She also stated that although T.T. lived further away from the foster parents, he made an effort to see T.J.T. and T.T. did not miss any of the visits. She agreed it would be "more healthy" for T.J.T. to maintain a relationship with T.T. Caylor agreed the fact that T.T. attended seventy-five percent of his visits showed an intent to have a relationship with his son.
7. T.T. "will submit to a substance abuse assessment and follow all recommendations. [T.T.] will submit to random drug screens provided by the Department on the day asked by 3:30 pm or unless otherwise indicated. This will include oral swabs, hair follicle, and urine analysis. These will take place at the closest drug testing facility in the area in which [T.T.] is residing or employed. [T.T.] is aware he must complete the test within the required time frames and failure to do so will result in an assumed positive."
Blain testified T.T. was in the process of completing his substance abuse assessment, and he would drug test "the majority of the times" he was asked to go, sometimes within a day or two of being asked. She admitted she gave him extra time to accommodate his work schedule. No evidence was adduced that any "recommendations" were made or that any "missed" tests resulted in an assumed positive result. In fact, T.T. completed both hair follicle and urine analysis tests. The plan did not require T.T. to engage in a drug treatment program. However, Sherman testified T.T. had attended and done everything asked of him in the program as far "as attending 12-step meetings; attending the group counseling; attending individual counseling."
8. "The Department is requesting that [T.T.] participate in parenting classes and provide a copy of the certificate of completion."
This "request" is not a mandatory requirement. Nevertheless, Blain testified that, after being informed he was T.J.T.'s father, T.T. "almost immediately" completed his parenting class.
B. Conclusion
In this case, the Department's witnesses emphasized "concerns" about T.T.'s alleged drug use and his refusal to acknowledge his use of methamphetamines. Although T.T.'s alleged drug use and/or refusal to admit to his use of controlled substances may have implications for a best-interest finding, here we consider only whether the evidence is legally sufficient to support a finding that T.T. did not comply with the direct, specifically required actions as stated in his service plan. On this record, we conclude the evidence is legally insufficient to support a finding under subsection (O).
See 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.) (concluding parent failed to adhere to service plan, which included maintaining a drug-free environment); In re M.G., No. 07-19-00289-CV, 2020 WL 611554, at *6, *8 (Tex. App.-Amarillo Feb. 7, 2020, no pet.) (mem. op.) (concluding trial court was presented with clear and convincing evidence sufficient to support finding that parent failed to comply with specific, itemized tasks, which included maintaining a drug-free lifestyle and abstaining from use of illegal drugs or drugs for which he did not have a valid prescription); In re D.K.J.J., No. 01-18-01081-CV, 2019 WL 2455623, at *15-16 (Tex. App.-Houston [1st Dist.] June 13, 2019, pet. denied) (mem. op.) (concluding evidence demonstrated parent failed to comply with court's orders, which included that she "must remain drug free for the duration of the case"); In re A.P., No. 13-19-00342-CV, 2019 WL 6315429, at *2, *7 (Tex. App.- Corpus Christi-Edinburg Nov. 26, 2019, no pet.) (mem. op.) (concluding reasonable fact finder could have formed a firm belief or conviction that parent failed to comply with the provisions of a court order that included having a stable living environment that was free of domestic violence, clean, safe, and drug free); See In re A.D., 203 S.W.3d 407, 411-12 (Tex. App.-El Paso 2006, no pet.) (plan required parent to "seek treatment to become drug free and submit to a drug assessment with Dr. Henneburg"; evidence established parent was not in compliance with the plan because she did not submit to a drug assessment with Henneburg, [or] refrain from drug use).
PREDICATE GROUND FOR TERMINATION SUBSECTION (P)
Under Family Code section 161.001(b)(1)(P), a trial court may terminate the parent-child relationship if it finds by clear and convincing evidence that the parent has "used a controlled substance . . . in a manner that endangered the health or safety of the child, and (i) failed to complete a court-ordered substance abuse treatment program; or (ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance." TEX. FAM. CODE § 161.001(b)(1)(P).
Subsection (P) requires specific proof that the parent used a controlled substance in a manner that endangered the child's health or safety. In re J.E.H., 384 S.W.3d 864, 871 (Tex. App.-San Antonio 2012, no pet.); In re J.C.N., No. 05-21-01163-CV, 2022 WL 1284169, at *7 (Tex. App.-Dallas Apr. 29, 2022, no pet. h.) (mem. op.). To "endanger" means "to expose to loss or injury; to jeopardize." Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although "'endanger' means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment," it does not require that there be conduct "directed at the child" or that "the child actually suffer[ ] injury." Id.
There is no dispute T.J.T.'s removal occurred solely based on the mother's acts or omissions. In October 2019, the Department became involved after the mother tested positive for marijuana while pregnant with T.J.T. who tested positive for marijuana when he was born. Blain testified T.T. told her that he and the mother were not in a relationship at the time of the removal. There is no evidence T.T. used drugs around T.J.T. or that any alleged drug use by T.T. endangered T.J.T. On this record, we conclude the evidence is legally insufficient to support a finding under subsection (P). See J.E.H., 384 S.W.3d at 871 (concluding evidence was legally insufficient to support a finding under subsection (P); noting, "[w]hile Clifton B. admitted that he tested positive for cocaine during the pendency of this suit, he denied having actually used cocaine and gave no testimony that would support a finding that his use of controlled substance endangered J.E.H.").
CONSERVATORSHIP
In his prayer for relief, without any further argument or analysis, T.T. asks this court to name him as "a conservator." The trial court appointed the Department as permanent managing conservator of both children based on its findings that appointment of any of the parents as a permanent managing conservator was not in the children's best interest and such appointment would significantly impair the children's physical health or emotional development. See TEX. FAM. CODE § 153.131(a) (authorizing appointment of Department as nonparent managing conservator if trial court finds "appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development"). T.T. does not challenge the trial court's findings that his appointment as managing conservator was not in T.J.T.'s best interest because it would significantly impair T.J.T.'s physical health or emotional development. See In re J.A.J., 243 S.W.3d 611, 615-17 (Tex. 2007) (holding parent must specifically challenge trial court's section 153.131 findings because such a challenge is not subsumed within parent's challenge to termination order). Because T.T. does not challenge the specific findings required by section 153.131, we affirm the trial court's conservatorship finding and decline T.T's request to name him as a "conservator."
REVERSAL AND REMAND
"Generally, if the court of appeals sustains the legal sufficiency point, 'it is the court's duty to render judgment for appellant.'" In re of J.M.T., 617 S.W.3d 604, 608 (Tex. App.-San Antonio 2020, no pet.) (citation omitted). "These principles, which are incorporated into Rule 43.3 of the Texas Rules of Appellate Procedure, are 'mandatory and . . . courts of appeals are not at liberty to disregard them." Id. (citation omitted). "The principles apply equally in parental rights termination cases; if the court concludes the evidence is legally insufficient, '[r]endition of judgment in favor of the parent would generally be required.'" Id. (quoting J.F.C., 96 S.W.3d at 266).
Notwithstanding the general rule, we have "broad discretion to remand for a new trial in the interest of justice, even when rendition would otherwise be appropriate. Id.; see also TEX. R. APP. P. 43.3(b) ("When reversing a trial court's judgment, the court must render the judgment that the trial court should have rendered, except when . . . the interests of justice require a remand for another trial."). To properly exercise our discretion, we must state we are doing so and our opinion must reflect the basis for our action. See J.M.T., 617 S.W.3d at 608. One of the circumstances under which remand in the interest of justice may be appropriate is in "unique situations" when the case was not fully developed at trial. Id. at 610. However, "justice does not require parties be afforded another 'bite at the apple,' and '[t]he ends of justice do not require a remand in every instance where a case was tried on the wrong theory or where the evidence was not fully developed.'" Id. at 609 (citation omitted). "[O]rdinarily, the fact the Department failed to meet its burden of proof and the child remains in managing conservatorship of the Department is not alone sufficient reason to exercise our discretion to remand for a new trial in the interest of justice." Id. at 613-14. In this case, nothing in the record compels us to exercise our discretion and deviate from the general rule. Therefore, because there are no unique circumstances presented, we expressly decline to remand this suit for termination of T.T.'s rights for a new trial after the Department failed to meet its burden of proof on both predicate grounds.
In his prayer for relief, T.T. asks this court to remand the matter back to the trial court for further orders regarding visitation and child support. We agree that, because the evidence is legally insufficient to support the termination of T.T.'s parental rights, the question of whether and to what extent he should be required to pay child support for and allowed visitation with T.J.T. should be addressed by the trial court. However, we deny T.T.'s request to remand the cause for consideration of these issues because we are confident the trial court will act in T.J.T.'s best interest.
CONCLUSION
We reverse that portion of the trial court's Order of Termination that terminated T.T.'s parental rights to T.J.T. and render judgment denying the Department's petition for termination of T.T.'s parental rights to T.J.T. We affirm the Order of Termination in all other respects.