Opinion by Justice Burgess.
The Department of Family and Protective Services (the Department) petitioned to terminate Mother's and J.W., Sr.'s (Husband's), parental rights to her child, J.W. The Department later nonsuited Husband when DNA testing established that he was not the child's father. Because Mother identified Appellant as a potential father, the Department amended its original petition to seek termination of Appellant's parental rights to J.W. On January 31, 2020, DNA testing established that Appellant was J.W.'s biological father. On February 3, 2020, the trial court adjudicated Appellant as J.W.'s father and issued its order, entitled Additional Temporary Order, directing Appellant to perform services, including that he "comply with each requirement set out in the Department's... service plan." On February 18, 2020, the Department's conservatorship worker met with Appellant to review the Department's service plan.
On March 4, 2020, twenty-nine days after the trial court issued its Additional Temporary Order and fifteen days after the Department met with Appellant to review its service plan, the trial court terminated Appellant's parental rights to J.W. for failing to comply with the service plan under Section 161.001(b)(1)(O) of the Texas Family Code, constructively abandoning J.W. under Section 161.001(b)(1)(N), and
Because the trial court did not provide Appellant with a reasonable time to comply with its Additional Temporary Order and because the Department did not provide Appellant with sufficient time to complete the service plan, the evidence is legally insufficient to support the trial court's findings that termination of Appellant's parental rights was merited under Section 161.001(b)(1), subsections (O) and (P), of the Texas Family Code. Likewise, the evidence is legally insufficient to support termination of Appellant's parental rights under subsection N to the extent the Department attempted to prove it made a reasonable attempt to return J.W. to Appellant based on implementation of its service plan. We further find that the evidence is legally insufficient to support subsection N's "reasonable effort to return" element to the extent termination is based on Appellant's failure to comply with court-ordered services and the Department's requests that he voluntarily perform services before he was adjudicated to be J.W.'s father.
However, we find that the evidence is legally sufficient to support termination of Appellant's parental rights under subsection N based on evidence suggesting Appellant impeded the Department's attempt to timely adjudicate his parentage. Nevertheless, we find that the evidence is factually insufficient to support termination under subsection N based on this reason. Accordingly, we reverse the judgment terminating Appellant's parental rights and remand this case to the trial court for a new trial.
I. Factual and Procedural Background
Mother gave birth to J.W. on September 15, 2018. At that time, she was married to Husband. The Department received an intake on the day of J.W.'s birth alleging that Mother used drugs during her pregnancy with J.W. and that Mother was residing in a domestic violence shelter because of violence between Mother and Husband. On September 24, 2018, the Department received umbilical cord blood test results for the newborn, J.W., showing that he tested positive for THC. The Department removed J.W. from Mother and instituted termination proceedings against Mother and Husband on September 24, 2018.
On May 6, 2019, genetic testing established that Husband was not J.W.'s biological father. The Department filed its motion to nonsuit Husband, and the trial court granted the motion on May 13, 2019. On that same day, the Department filed its Second Amended Petition for Protection of a Child, For Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship, for the first time alleging that Appellant was J.W.'s father. Finally, on that day, citation was issued for Appellant, and counsel was appointed to represent Appellant at trial.
Despite numerous attempts, the Department was unable to effect service on Appellant. However, Appellant appeared at a status hearing on October 3, 2019. During that hearing, the trial court ordered Appellant to submit to genetic testing. Appellant submitted his DNA sample on December 20, 2019. On January 16, 2020, while the
On January 21, 2020, the DNA test confirmed that Appellant was J.W.'s biological father. The trial court adjudicated parentage of Appellant on February 3, 2020, and ordered Appellant to undergo psychological evaluation, submit to random drug testing as required by the Department, complete a drug and alcohol dependency evaluation, and begin counseling and parenting classes. On that same day, the trial court issued its Additional Temporary Order requiring Appellant to:
The Department filed a service plan with the trial court on February 10, 2020, and met with Appellant to go over that plan on February 18, 2020. That plan required Appellant to:
Appellant testified that he became frustrated and walked out of the February 18 meeting because the trial date was so close that he did not feel as if he had enough time to comply with the family service plan. Instead, he admitted to using marihuana and told the caseworker that he would not participate in services. As a result, the trial began without Appellant having initiated any attempt to comply with the family service plan.
Mother signed an affidavit of relinquishment of her parental rights to J.W. before trial. During trial, Mother testified that she told Appellant that he could be J.W.'s father when she became pregnant in February 2018 and that "it was between him and [Husband]." Mother also testified that she told Appellant that the baby was his in November 2019, after DNA tests showed that Husband was not J.W.'s biological father.
Appellant admitted that Mother informed him when she was pregnant that J.W. could be his child but added that he was not actually aware that he was the child's biological father until less than two months before trial. Appellant acknowledged that he met with the caseworker about his family service plan and understood what he had to do but told the caseworker that he was not going to perform services because he "was upset." Appellant testified that he regretted walking out of the February 18 meeting out of frustration, that he was willing to work through the service plan, that he had never harmed any of his children, and that he could either provide a safe and stable home for J.W. or could have his family
On cross-examination, Appellant admitted that he remembered the trial court telling him to "start services even though [he] did not know if [he] w[as], for sure, the father." However, he testified, "They never gave me no location, they never told me where, or where to take my drug test, where were the classes at, the address. Didn't nobody give me no information on nothing." At trial, the Department did not provide evidence of a written family service plan other than the one given to Appellant fifteen days before trial. However, Jacob Crater, a supervisor for Child Protective Services (CPA), testified that, when Appellant appeared at the October 3, 2019, hearing, he said he was willing to work a family service plan and therefore knew in October that he was going to work services if his DNA tests confirmed him to be J.W.'s biological father.
Appellant testified that he wanted J.W. to come home with him. He also testified that he had previously been incarcerated for burglary of a habitation after violating his community supervision by committing an assault and that he lived with his grandmother and his son in a three-bedroom home. Grandmother testified that she was a joint managing conservator of Appellant's five-year-old son and that Appellant was not a possessory conservator. Appellant, who had previously been through the CPS process, also had two other children who did not live with him, but assured the trial court that he would follow all court orders if he were allowed possession of and access to J.W. Even so, Appellant admitted to smoking marihuana "[l]ike every day" until a week before trial but swore that he did not smoke around his children or inside his grandmother's home. Grandmother testified that she had no knowledge of any drug use by Appellant, and Mother testified that Appellant's family members did not use marihuana.
Appellant said that he had provided his mother as a possible placement for J.W. and believed that the Department was considering that option. The following transcript summed up his response to the Department's petition:
CPS Caseworker Marquita Rowland agreed that Appellant was a non-offending parent, that the Department's goal was to reunify children with their biological parents, and that she had never evaluated Grandmother's home to see if it was an appropriate placement for J.W. And there was no mention of whether the Department had considered Appellant's mother's home as a possible placement for the child. However, Rowland did not believe that
Rowland testified that she began her attempts to contact Appellant in May or June 2019 by sending him letters and leaving business cards at his residence. Appellant never responded to Rowland until he appeared in court. After his appearance at the October hearing, Rowland testified that she spoke to Appellant in November 2019, explained that he would have to complete a family service plan, and provided him with a contact to begin the plan. Rowland said, "I would just tell him to go and drug test, to get a baseline to see if we would even refer him to an alcohol and drug assessment, ... which he never did. And then I've also provided him with parenting classes to come to." Rowland said that she told Appellant that he could visit J.W. before the DNA test results came back but that Appellant wanted to wait for the results instead. After Appellant was confirmed to be J.W.'s biological father, Rowland informed Appellant that he had "up to two hours for visits" and asked him to provide his available dates and times.
Rowland met with Appellant and Grandmother in February 2020 to go over the family service plan. According to Rowland, when she asked Appellant to undergo a drug test, he admitted to using marihuana and left the office after refusing to work services. Appellant's admission of drug use concerned Rowland because, in her opinion, a parent using marihuana "would not be able to effectively watch the child or make the ... proper decisions with that child." Rowland was also concerned that Appellant did not have custody of any of his children and had been through CPS services before but had failed to apply what he had learned.
Tesa Wilson, a volunteer with East Texas Court Appointed Special Advocates (CASA), testified that J.W. was doing well in his foster home, where he played with his brothers and sisters. Rowland and Tesa testified that it was in J.W.'s best interest for Appellant's parental rights to be terminated. J.W.'s foster mother, Amanda Sherman, testified that she wanted to adopt J.W., who had lived with her for sixteen months. She added that J.W. was a happy baby, that J.W. had never seen Appellant, and that it was in J.W.'s best interest that his parental rights be terminated. After hearing the evidence, the trial court terminated Appellant's parental rights after finding that statutory grounds N, O, and P existed and that termination of the parent-child relationship was in J.W.'s best interests.
II. Is the Evidence Legally and Factually Sufficient to Support Termination Under Subsections N, O, and P?
A. Standard of Review
"The natural right existing between parents and their children is of constitutional dimensions." In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.-Texarkana 2018, no pet.) (quoting Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). "Indeed, parents have a fundamental right to make decisions concerning `the care, custody, and control of their children.'" Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). "Because the termination of parental rights implicates fundamental liberty interests, a higher standard of proof—clear and convincing evidence—is required at trial." Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). "This Court is therefore required to `engage in an exacting review of the entire record to determine if the evidence is ... sufficient to support the termination of parental rights.'" Id. (quoting A.B., 437 S.W.3d at 500). "[I]nvoluntary termination statutes are strictly construed
"In order to terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest." Id. (citing TEX. FAM. CODE ANN. § 161.001; In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). "`Clear and convincing evidence' is that `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.'" Id. (quoting TEX. FAM. CODE ANN. § 101.007) (citing In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). "This standard of proof necessarily affects our review of the evidence." Id.
"In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven." In re L.E.S., 471 S.W.3d 915, 920 (Tex. App.-Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.-Texarkana 2011, no pet.)). "We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which could be doubted." Id. (citing J.P.B., 180 S.W.3d at 573).
"In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing." Id. (citing In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam)). "We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine `whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the ... allegations.'" Id. (quoting H.R.M., 209 S.W.3d at 109) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)) (citing In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002)). "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. (quoting J.F.C., 96 S.W.3d at 266). In our analysis, "we must undertake `an exacting review of the entire record with a healthy regard for the constitutional interests at stake.'" Id. (quoting In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (quoting C.H., 89 S.W.3d at 26)).
"Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, `the rights of natural parents are not absolute; protection of the child is paramount.'" Id. (quoting In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)) (citing In re M.S., 115 S.W.3d 534, 547 (Tex. 2003))). "A child's emotional and physical interests must not be sacrificed merely to preserve parental rights." Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.-Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26)).
B. Analysis of the Sufficiency of the Evidence to Establish Termination Under Subsections (O) and (P)
Section 161.001 of the Texas Family Code provides,
TEX. FAM. CODE ANN. § 161.001(b)(1).
Subsection O requires proof by clear and convincing evidence that the parent failed to comply with the trial court's order "that specifically established the actions necessary for the parent to return the child...." Id. Subsection P(i) requires clear and convincing evidence that the parent "failed to complete a court-ordered substance abuse treatment program." Id. While the court ordered both of those items in its Additional Temporary Order on February 3, 2020, it also ordered Appellant to comply with the Department's service plan. That plan contained the specific information Appellant needed to satisfy the trial court's Additional Temporary Order. Thus, for the Department to prevail under both subsections O and P, it was required to establish by clear and convincing evidence that the Appellant failed to comply with its service plan.
Subsection N, on the other hand, does not directly require compliance with the Department's service plan. Nevertheless, subsection N(i) does require proof by clear and convincing evidence that "the department has made reasonable efforts to return the child to the parent."
2. The Evidence Is Legally Insufficient to Support Termination of Appellant's Parental Rights Under Subsections O and P
The evidence is undisputed that the trial court issued its Additional Temporary Orders on February 3, 2020, that the Department first filed its service plan with the trial court on February 10, 2020, that the Department met with Appellant on February 18, 2020, to discuss its service plan, that the Department filed the signed service plan with the trial court on February 24, 2020, and that the final hearing was held on March 4, 2020. The February 18 meeting occurred fifteen days before the final hearing where the trial court terminated Appellant's parental rights to J.W. Given the nature of the service plan's terms in this case,
Likewise, the trial court's Amended Temporary Order—which required Appellant to perform services in addition to the services identified in the service plan—was issued on February 3, 2020. This order was issued only twenty-nine days before the termination trial. For the same reason the Department cannot rely on Appellant's failure to comply with the service plan to support termination under subsections P and O, we hold that the Department cannot base termination of Appellant's parental rights under subsection O based on his failure to comply with the trial court's February 3, 2020, order. Given the nature of the services required in that order,
C. Analysis of the Sufficiency of the Evidence to Justify Termination of Appellant's Parental Rights Under Subsection N
As mentioned, the Department may prove that it made a reasonable effort to return the child to the parent by showing that it implemented a service plan where "the parent has been given a reasonable opportunity to comply with the terms of the plan." See A.Q.W., 395 S.W.3d at 289. For the same reason that the evidence was insufficient to support termination of Appellant's parental rights under subsections O and P, the evidence is insufficient to prove that the Department made a reasonable effort to return J.W. to Appellant based on the implementation of the service plan. Fifteen days is insufficient to prove that "the parent has been given a reasonable opportunity to comply with the terms of the plan." See id. Accordingly, the Department may not rely on Appellant's failure to complete the service plan to prove it made a reasonable effort to return J.W. to Appellant.
Nevertheless, as noted above, there are other ways for the Department to prove that it made a reasonable effort to return J.W. to appellant under subsection N. In this case, the record reveals two other possibilities: (1) evidence tending to show that Appellant failed to voluntarily comply with the trial court's orders and the Department's requests that he perform services in this case prior to adjudication of his parentage and (2) evidence tending to show that Appellant impeded the Department's attempts to timely adjudicate Appellant's parentage. Accordingly, we will now consider whether this other evidence is sufficient to support a finding that the Department made a reasonable effort to return J.W. to Appellant in order to terminate Appellant's parental rights under subsection N.
2. Summary of the Arguments and Other Evidence Offered by the Department to Establish that It Made Reasonable Efforts to Return J.W. to Appellant
The Department argues that Mother told Appellant he was possibly J.W.'s father when she became pregnant in February 2018, and in May 2019, when the DNA test results eliminated Husband as the father, Mother told Appellant he was the father.
The Department also points to the fact that the trial court orally ordered Appellant to undergo services the first time he appeared in court on October 3, 2019, and that, after that hearing, the Department's supervisor, Jacob Crater, talked to Appellant where Appellant said he was willing to work a family service plan, thereby establishing that he knew he was going to have to work services if DNA tests confirmed him to be J.W.'s father. Finally, it points to Appellant's testimony acknowledging these facts. The Department cites to four cases interpreting subsection N's requirement that it make a reasonable effort to return the child to the parent where the courts found that events occurring prior to the issuance of the service plan were sufficient to satisfy that burden. We discuss those cases in turn.
In In re K.J.T.M., we held that the Department made reasonable efforts to return the child to the father who was serving a twenty-year sentence in the Texas Youth Commission for armed robbery. In re K.J.T.M., No. 06-09-00104-CV, 2010 WL 1664027 (Tex. App.-Texarkana Apr. 26, 2010, no pet.) (mem. op.). We noted that the father received a visit from a Department caseworker, Lydia Nehls, while he was incarcerated; that Nehls was the caseworker responsible for developing the father's service plan; that a service plan was filed with the trial court eight months before trial without objection; and that other Department workers testified that Nehls had visited with the father, had made face-to-face contact with him, and had provided an outline of services that he could use to develop parenting skills. Id. at *3.
We also noted that "the Department made efforts, although futile, to place K.J.T.M. with relatives." Id. We observed that the Department had ruled out the father's mother because she "had a lengthy history with the Department regarding other children" and had ruled out his sisters because "one sister had children who were being raised by [father's mother], and the other sister was in high school." Id. We then noted that the Department had contacted father's grandmother but that she "advised she was neither physically nor financially able to care for the child." Id. Based on these facts, we held that "the trial court did not err in finding that the Department made reasonable efforts to return the child to [the father]." Id. at *4.
In In re G.P., the Waco Court of Appeals held that the Department made reasonable efforts to return the child to Mother where there was "evidence of the Department preparing and administering [Mother's] service plan," Mother "failed to complete any of the tasks or goals set forth in her service plan," and specifically, Mother failed "to keep in contact with the caseworker or to visit with [the child] other than a few visits early in the proceeding." In re G.P., 503 S.W.3d 531, 533 (Tex. App.-Waco 2016, pet. denied). The court also noted that "[t]he services included in the family service plan were reinstated when [Mother] contacted the caseworker about working on her service plan during the pendency of the case after the service providers had terminated [her services] due to her failure to participate." The court held that, on these facts, "a reasonable fact[-]finder could have formed a firm conviction that the Department made reasonable
In In re N.A.V., the San Antonio Court of Appeals held that the Department made a reasonable effort to return the child to Mother where it established that, "[o]n multiple occasions, one of the caseworkers, Rodriguez, asked Mother to meet with her so they could review the prior judgment and Mother's service plan," but "Mother refused to meet with Rodriguez" and, "[i]n fact, Mother told the caseworker she was `not going to do anything for the Department.'" In re N.A.V., No. 04-19-00646-CV, 2020 WL 1250830, at *6 (Tex. App.-San Antonio Mar. 17, 2020, pet. denied) (mem. op.). The court also noted that, "[w]ithout a meeting, the caseworker could not assess Mother's current situation and determine what services she needed to assist her in any reunification efforts." Accordingly, it concluded, "the trial court could have formed a firm belief or conviction that the Department made reasonable efforts to return the children to Mother." Id.
Finally, in In re K.G., the Fort Worth Court of Appeals held that the Department had made reasonable efforts to return the child to Mother based on an extensive record including information that, although "Mother had paid child support and ... had attended visits with [the child] from February to September 2009," beginning "in September 2009" those visits became more sporadic. In re K.G., 350 S.W.3d 338, 343 (Tex. App.-Fort Worth 2011, pet. denied). The court noted that, "in September 2009, Mother attended only one of three possible visits," that "Mother did not attend any visits in October or November 2009," and that Caseworker "Moore was unable to reestablish contact with Mother until December 2009." Id. In addition, "Mother started going months between phone contacts with" Moore, and "Mother's phone numbers were `typically disconnected.'" Id. Moreover, "when [Moore] went to Mother's last known address in October 2009, she was informed that Mother no longer resided there."
Also, there was evidence that Caseworker Moore "asked Mother to complete additional services, including parenting classes, anger management classes, individual counseling, and a drug assessment," and although "Mother completed the parenting classes," she "complied with only two of fourteen CPS-requested drug tests." Moore "sent a letter to Mother ... outlining additional recommended services, and... Mother acknowledged to Moore that she received the letter." Id. The caseworker also "urged Mother to seek mental health treatment based on Mother's erratic behavior and exhibition of different personalities, although Mother's drug issues were Moore's main concern." Id. at 344. The Court held that, on the record before it, "the trial court could have reasonably formed a firm belief or conviction that the `reasonable efforts' element was proven." Id. at 354.
3. The Evidence is Legally Insufficient to Support Termination Under Subsection N Based on Appellant's Failure to Voluntarily Comply with the Trial Court's Orders and the Department's Desire that He Perform Services Prior to Adjudication of His Parentage
To begin with, the Department's argument is essentially that, even though it did not provide the service plan to Appellant until fifteen days before trial, and even though the trial court did not issue its Additional Temporary Order until twenty-nine days before trial, the trial court and the Department told Appellant beginning in October 2019—when he first appeared in court—that he would have to perform services before the final trial. It concludes
Yet, there is another reason why this evidence is insufficient, namely, until Appellant was adjudicated to be J.W.'s father, neither the Department nor the trial court had the authority to require him to perform services. Section 264.203 provides,
TEX. FAM. CODE ANN. § 264.203.
Unlike the parents in the cases cited by the Department,
Moreover, this is not a typical case where an alleged father who has been involved in a long-term relationship with the child's mother is subsequently adjudicated to be the child's biological father. In this case, J.W. was born into a household consisting of Mother and Husband. Appellant was not a member of that household, did not reside in that household, and was not involved in the actions that led to J.W.'s removal from that household. At most, he was a potential father. Of course, because Mother named him as the potential father when Husband's genetic testing excluded him from being J.W.'s father, the trial court had authority to require Appellant to submit to genetic testing. See TEX. FAM. CODE ANN. § 160.502(a). Yet, as is shown below, prior to the time Appellant was adjudicated J.W.'s father, the trial court did not have the authority to require him to participate in services.
Section 264.203(a) provides that "the court on request of the department may order" the respondent to "participate in the service the department provides or purchases for" "alleviating the effects of the abuse or neglect that has occurred" or "reducing the reasonable likelihood that the child may be abused or neglected in the immediate or forseeable future." TEX. FAM. CODE ANN. § 264.203(a). Pursuant to this broad description of services, the trial court in this case required Appellant to undergo "a court-ordered psychological or psychiatric examination" and a "drug and alcohol dependency assessment" and to "follow the recommendations of the assessment," "attend and cooperate fully in counseling sessions to address the specific issues that led to the removal of the child from the home"—even though Appellant never resided in J.W.'s home and never engaged in any conduct that resulted in his removal—"address any additional issues arising from the psychological examinations or from the counseling sessions," "complete parenting classes," and "comply with each requirement of the Department's... service plan." The trial court also required Appellant to "execute an authorization for the release of medical and mental health records to the Department, and provide the Department with a list of the names and addresses of the physicians and mental health providers who ha[d] treated [him]." It also ordered that Appellant identify all members of his household and ordered the Department to "conduct... preliminary criminal and CPS background checks of all members of the household age 14 and up." The service plan required Appellant to "obtain and maintain stable ... employment," "convey to the worker information learned" from the parenting course "and demonstrate skills during parent/child visits," "develop a positive support system," "submit to random drug and alcohol screenings," "participate in a psychological evaluation," and "attend and
Assuming there is a factual basis for doing so, imposition of these types of service requirements and production of this type of information is entirely appropriate and authorized under Section 264.203 of the Texas Family Code when it is directed towards a "parent, managing conservator, guardian, or other member of the subject child's household." TEX. FAM. CODE ANN. § 264.203(a). And it is reasonable and proper to require such persons to undergo such services as a condition to obtaining the return of their child. It is also reasonable and proper to hold that if they fail to perform those services, they can be sanctioned "in order to protect the health and safety of the child, including the removal of the child as specified by Chapter 262." TEX. FAM. CODE ANN. § 264.203(c). But it would be entirely unreasonable and improper to require a stranger to the child's household in Appellant's situation to undergo such services or produce such information. Mandating that a stranger to the child's household in Appellant's situation undergo such services and produce such information to a government agency would constitute a substantial invasion of that person's privacy.
To hold otherwise would place alleged fathers in Appellant's unique situation— i.e., ones who were never a part of the child's household, who never engaged in any of the actions resulting in the child's removal from the home, and who, although they may have suspected they were the child's father, did not know that fact until genetic testing confirmed that they were
The law is clear that a defendant in a criminal proceeding may not be required to forfeit one constitutional right in order to assert a different constitutional right. See Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) ("We find it intolerable that one constitutional right should have to be surrendered in order to assert another."). To hold that the refusal of an alleged father in Appellant's unique situation to voluntarily cooperate in a service plan or to surrender significant personal information to a government agency before he is adjudicated as a biological father can later be used against him to terminate his fundamental liberty interest in the parent-child relationship would amount to the same Hobson's choice prohibited in criminal proceedings.
To be clear, we do not hold that the Department could never use such information against an alleged father in a parental-rights termination case. In cases where an alleged father falls within one of the categories listed in Section 264.203 of the Texas Family Code, such alleged father is subject to adherence to a service plan, and the refusal to cooperate can be considered in evaluating whether the Department made a reasonable attempt to return the child to the parent under subsection N. Nor do we reject the possibility that an alleged father not falling within the categories listed in Section 264.203(a) may have such a significant connection to the child's household that his failure to voluntarily comply with the Department's requests could weigh against him under subsection N. But on the unique facts of this case, where the alleged father does not fall within the category of persons listed in Section 264.203, is a stranger to the child's household, did not engage in the acts that required removal of the child from that household, and does not know but only suspects he is the child's father, the Department must "put the horse in front of the cart"—it must first adjudicate the father as parent and then it may proceed to order services and compel production of information.
4. The Evidence Is Factually Insufficient to Support Termination Based on Evidence Appellant Impeded the Department's Attempts to Timely Adjudicate His Parentage
Nevertheless, while the Department cannot use the failure of an alleged father in Appellant's situation to voluntarily perform services prior to adjudication to show it made a reasonable effort to return the child under subsection N, it can use evidence that an alleged father impeded the Department's efforts to timely adjudicate parentage to prove that element. In other words, an alleged father in Appellant's situation cannot use a delay in adjudication of his parentage that he created to defend against termination of his parental rights. In this case, Appellant knew he was required to submit to genetic testing as of the October 3, 2019, hearing when he first appeared in this case. Had the Department obtained his DNA sample that day and received the results in November 2019 and had the Department issued a service plan by the end of that month—which was four months prior to the final hearing—the facts in this case might take on an entirely different character. Yet, the DNA sample was not taken until December 20, 2019, and the results were not obtained until January 21, 2020. The trial court's order requiring Appellant to perform services was not issued until February 3, and the service plan was not issued until February 18, fifteen days before trial.
Given the problems the Department experienced in securing Appellant's participation in this proceeding, the trial court could have inferred from the evidence that the delay in obtaining Appellant's DNA sample resulted from that same difficulty.
Consequently, we find that the evidence is legally insufficient to support termination of Appellant's parental rights under subsections O and P of Section 161.001(b)(1) of the Texas Family Code. We further find that the evidence is legally insufficient to support termination of Appellant's parental rights under subsection N to the extent that the Department relies on his failure to perform services pursuant to the trial court's Additional Temporary Order issued February 3, 2020, and the Department's service plan presented to Appellant on February 18, 2020. We likewise hold that the evidence is legally insufficient to support termination of Appellant's parental rights under subsection N to the extent that the Department relies on his failure to voluntarily perform services prior to adjudication of his parentage on February 3, 2020. Finally, we hold that the evidence is factually insufficient to support termination of Appellant's parental rights under subsection N to the extent that the Department relies on evidence suggesting that timely adjudication of Appellant's parentage was impeded by Appellant's failure to cooperate with the Department in obtaining a necessary DNA sample.
Consequently, we reverse the judgment of the trial court terminating Appellant's parental rights and remand this case to the trial court for a new trial.
TEX. FAM. CODE ANN. § 161.001(b)(1)(N).
TEX. FAM. CODE ANN. § 263.102(a)(3), (7)-(8), and (d). Section 263.103(a) provides,
TEX. FAM. CODE ANN. § 263.103(a). Section 263.106 states,
TEX. FAM. CODE ANN. § 263.106.
TEX. FAM. CODE ANN. § 160.505(a). In this case, the genetic testing results, which appear to comply with the statutory accuracy requirements, were filed on January 21, 2020. Under Section 160.505(a), this would create a presumption that Appellant was J.W.'s father as of that date. Nevertheless, this does not change the fact that the Additional Temporary Order was issued only twenty-nine days before trial and the service plan was not provided to Appellant until fifteen days before trial. Consequently, even though it appears that Appellant became a presumed father on January 21, 2020—assuming the DNA test results filed with the trial court on that day met the requirements of Section 160.505(a)—this does not change our analysis.
CPS Caseworker Rowland testified, "Maybe November, I started to contact him to meet up with him." She continued, "[W]henever I went to Marshall, I would knock on the door, say my name, and then leave my card, as well as leaving messages — and mail." She testified that she began doing that "[r]ight when [they] found out that [Husband] wasn't [J.W.'s] father, and when [Mother] gave [them] the name, ... May, maybe June of ." Rowland also testified that "the first time [Appellant] responded to [her] after the court date in October" was "sometime in November." She said "it was by phone." She continued, "We attempted to meet, but that didn't work out. But it was pretty much through his grandmother's phone." She agreed that the call "was not text message, it was natural phone call." She also testified that she "talked to his grandmother" and that she discussed a DNA test during that call. Finally, she testified that she didn't know if she "was able to give him the date of that DNA test during that conversation,... but [she knew] whenever [she] did find out that date, [she] did let them know the same day," and "he did go to that DNA test."