In THE INTEREST OF R.J.G., R.J.G., D.G.M., CHILDREN v. the State of Texas

Supreme Court of Texas

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No. 22-0451

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In the Interest of R.J.G., R.J.G., D.G.M., Children

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On Petition for Review from the

Court of Appeals for the Fourth District of Texas

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Argued September 12, 2023

JUSTICE HUDDLE delivered the opinion of the Court.

Both this Court and the Supreme Court of the United States have

long recognized the fundamental right of parents to make decisions

concerning the care, custody, and control of their children. Thus, Texas

law rightly requires that, before infringing on a parent’s right to care for

and have custody of her child, the State, usually acting through the

Texas Department of Family and Protective Services, must demonstrate

to a court that governmental intrusion is warranted. The bar is—

appropriately—highest when the State seeks a judgment effecting the

outright and permanent termination of the parent–child relationship.

The predicate grounds that the Legislature has determined

justify such a termination are recited in Family Code

Section 161.001(b)(1). All require the State to prove its case by clear and

convincing evidence, and nearly all require proof that the parent has

abandoned or endangered the child or that the parent has engaged in

specified criminal conduct. The exception is (O). Unlike the other

grounds for termination, it permits termination if a parent fails to

comply with a family service plan, which, in lay terms, is a list of tasks

the Department requires—and the trial court orders—the parent to

perform to obtain the return of a child following removal.

In this case, the Department sought termination based solely on

(O) and conceded that, although she did not comply in the precise way

the Department hoped she would, Mother complied with the plan’s

terms. Indeed, after the children were removed because she was late

picking them up from daycare one night, Mother spent a year

performing the tasks the Department and the trial court’s order told her

were required to get her children back. She attended individual

counseling, parenting classes, and substance abuse classes; stayed

drug-free; maintained a job and a clean and stable home; and stayed in

contact with her caseworker. But at trial, which was to the bench,

Mother’s caseworker (the Department’s only witness) testified that

Mother had not complied with the plan in the way the Department

wanted. The trial court concluded that it could not consider whether

Mother “substantially complied” with the plan’s requirements and thus

seemingly decided strict compliance with the written terms of the plan

(as glossed by the caseworker’s testimony) was required to avoid

termination. Concluding Mother had not satisfied that standard, the

trial court rendered a judgment of termination, which the court of

appeals affirmed.

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In light of Section 161.001(b)’s plain text and the fundamental

rights at issue, we reject this reading of (O). To begin, the statutory text

permits termination only if the provision with which the parent failed

to comply was “specifically established” in the written court-ordered

service plan. The predicate ground for termination under (O) cannot be

proven by clear and convincing evidence if premised on a plan

requirement that is unwritten, and thus supplied only by the

caseworker’s oral testimony, or on one that is written but vague.

Moreover, even if the Department proves by clear and convincing

evidence that a parent failed to comply with a requirement “specifically

established” in the written plan, that requirement may be so trivial and

immaterial, considering the totality of what the plan requires, that the

parent’s noncompliance does not justify termination. A trial court

should not reflexively order termination when the evidence

demonstrates noncompliance with a plan requirement. Instead, the

trial court should consider whether the nature and degree of the

asserted noncompliance justifies termination under the totality of the

circumstances.

The record reflects that the trial court believed termination was

mandatory if Mother’s compliance fell short of perfect in the

Department’s eyes. It therefore seemingly did not consider the plan’s

specificity or lack thereof, nor did it consider the nature or degree of the

asserted noncompliance or Mother’s commendable progress toward

satisfying the numerous plan provisions that were more central to

achieving the Department’s goal of family reunification. Applying the

correct standards, we hold there is legally insufficient evidence to

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support termination under (O) by clear and convincing evidence.

Because (O) was the only asserted ground for termination, we reverse

and render judgment for Mother.

I. Background

Mother was nineteen years old when she gave birth to her third

child, D.M. Shortly thereafter, the Department of Family and Protective

Services opened an investigation based on a report of neglectful

supervision by Mother of her other children. About a month later,

Mother dropped her two older children at a daycare facility and failed to

pick them up before it closed at midnight. The police contacted Mother,

and she lied to them about the reason for her delay.

The Department took possession of all three children the next

day. It filed a petition seeking termination of Mother’s parental rights,

as well as the rights of the children’s alleged fathers. The trial court

signed an emergency order that named the Department the children’s

temporary managing conservator.

The Department prepared a single Family Plan of Service for both

Mother and D.M.’s father. Because the Department ultimately sought

termination based on Mother’s alleged failure to comply with this plan,

we describe it in some detail. Its overarching or “primary permanency

goal” is “family reunification” for all three children. The plan identifies

a number of joint goals Mother and D.M.’s father should accomplish to

obtain reunification: “have a stable home and employment”; “undergo

substance abuse treatment”; “sign up for parenting classes . . . so they

can acquire new skills on how to keep their children safe and maintain

hygienic conditions at home”; and “take care of all pending legal matters

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such as past arrest[s] that might be pending.” The plan also states two

individual goals for Mother: “participate in a psychological evaluation”

and “go to MHMR for an evaluation and advise them about her

symptoms and mental health family history.”

The plan then recites issues and needs of each parent and sets

forth “required action[s]” that each agreed to take. The Department

asserts Mother failed to comply with three such requirements. 1 Under

the heading “Parenting Skills,” the plan states:

[Mother] agrees to attend, participate and successfully

complete parenting classes and submit to the Department

a certificate of completion to file with the court. . . .

Under “Coping Skills/Mental Health,” the plan says:

[Mother] has been referred to begin services with LPC Mr.

Daniel Browne. [Mother] [will] address the reason of

removal and explore healthier ways to deal and cope with

stressors of life. . . . [Mother] will also address and learn

different ways to cop[e] with her mood changes and how

[to] give her children a safe and stable environment.

[Mother] in addition will undergo individual counseling in

order to address her needs. [Mother] will also address and

1 In its briefing to this Court, the Department asserted that Mother

failed to comply with a fourth requirement that she “stay away from

friends/family that might be involved in criminal activity.” The basis for this

claim was that Mother communicated with D.M.’s father while he was

incarcerated for assaulting her. We doubt that a reasonable person would

understand a requirement to “stay away” from those involved in criminal

activity to specifically establish a requirement that Mother cease telephonic

communication with D.M.’s father, especially when the Department itself

crafted the plan jointly for them. In any event, the Department conceded at

oral argument that it did not rely on Mother’s purported failure to comply with

this provision as a basis for seeking termination in the trial court and

disclaimed reliance on it in this Court. Accordingly, we do not consider it as

an alternative ground to support the judgment.

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find healthier ways to raise her children and work with

their family structure.

Finally, under “Substance Abuse/Use,” the plan states:

[Mother] agrees to submit to substance abuse classes at

S.C.A.N. and provide the Department with a certificate of

completion.

Mother does not dispute the contents of the plan, nor does she dispute

that the trial court ordered her to comply with it.

Mother set out to take the required classes but had difficulty

getting a response from S.C.A.N. 2 due to the onset of the COVID-19

pandemic. So the Department asked Daniel Browne, a licensed

professional counselor to whom the Department referred Mother for

individual counseling, to include parenting and substance abuse classes

as part of Mother’s individual counseling. Browne agreed, and Mother

regularly attended counseling sessions with Browne for nearly a year.

Notably, the plan was never amended to reflect this change of providers.

A year after the children’s removal, the Department filed a report

reflecting that Mother attended numerous sessions with Browne and

that she “has demonstrated adequate and appropriate compliance with

the [plan].” Yet two months later, Browne changed his mind, apparently

at the Department’s prodding: he discharged Mother and noted in his

records that she “was not able to complete services successfully.”

Browne’s records state that he believed Mother “did not show the

capacity or willingness to remove herself from violence or drug abuse

2 S.C.A.N. stands for Serving Children and Adults in Need, a services

provider located in Mother’s hometown. In addition to requiring Mother to

attend substance abuse classes at S.C.A.N., the plan identified it as the

resource for her parenting classes.

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related influences.” Mother’s caseworker’s trial testimony shed light on

this sudden change. She testified that Browne discharged Mother

because the Department informed him that Mother continued to

communicate with D.M.’s father by phone while he was in jail for

assaulting Mother. The record does not reflect that Mother had any

reason to believe communicating with D.M.’s father was prohibited

under the plan.

In the hopes of continuing to progress toward reunification,

Mother sought additional counseling after Browne discharged her. She

participated in counseling classes at Grupo Amor, where her

Department caseworker referred her. According to Mother, her Grupo

Amor classes covered “anger management, substance abuse, domestic

violence, . . . how to feed the family, and how to be a single mother.” She

testified that she completed her parenting and substance abuse classes

at Grupo Amor and her counselor gave the Department a certificate to

that effect. The caseworker denied having the certificate but admitted

that Mother “complet[ed] her family domestic violence classes” and that

those classes touched on anger management and lifestyle. Mother

continued to attend counseling sessions at Grupo Amor until shortly

before trial, when she stopped going due to her work schedule.

Mother got still more counseling, from another therapist to whom

Grupo Amor referred her. The caseworker testified that Mother

“received a recommendation,” meaning that Mother had successfully

completed this therapy. Yet the caseworker discounted it because, she

testified, the therapist did not know and did not address “the reason of

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the removal and also all the different incidents that had happened

throughout the life of the case.”

Thus, despite Mother’s sustained efforts to complete the plan and

demonstrate her desire and ability to parent, such as by seeking

counseling, staying drug-free, visiting with her children, and

maintaining employment and stable housing, the caseworker testified

at trial that Mother did not meet her plan’s requirements. Then, on

cross-examination, she conceded that Mother had complied, just not in

the way she needed to or was ordered to:

Q: Would it be fair to say she has complied; she just

hasn’t complied when the State needed her to comply or in

the way she was ordered to comply? Is that a fair

statement?

A: Yes.

The trial court found by clear and convincing evidence that

Mother failed to complete the plan. Rejecting Mother’s argument that

she presented evidence of substantial compliance, the court reasoned

that “the Family Code provides that the parent should demonstrate

completion of the service plan. . . . It doesn’t say substantially comply,

and I will not infer that as the Code does not allow me to infer that

provision.” “For that reason,” the trial court concluded, “I will go ahead

and . . . grant the termination of the parental rights between [Mother]

and the three children under the only provision of Texas Family Code

161.001(b)(1)(O).” The trial court further found that termination was in

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the children’s best interest and rendered judgment terminating

Mother’s parental rights to the three children. 3

The court of appeals affirmed, stating that Mother did not dispute

that she “failed to comply with the service plan.” ___ S.W.3d ___, 2022

WL 1158680, at *2 (Tex. App.—San Antonio Apr. 20, 2022). The

appellate court also rejected Mother’s substantial-compliance argument,

concluding that “substantial compliance with a family service plan is not

the same as complete compliance.” Id. at *3 (quoting In re J.M.S., No.

04-18-00608-CV, 2019 WL 574862, at *3 (Tex. App.—San Antonio Feb.

13, 2019, no pet.)). Mother petitioned this Court for review. 4

II. Applicable Law

A. Family Service Plans

Under the Family Code, the Department of Family and Protective

Services may remove an abused or neglected child from the home and

3 The trial court also terminated the parental rights of the fathers of all

three children. None of the fathers appealed.

4 Mother got review only after hurdling multiple obstacles, none of

which were of her making. When her court-appointed appellate counsel would

not respond to her inquiries regarding the court of appeals’ decision, Mother

traveled from Laredo to this Court to seek guidance from the clerk’s office. She

then filed a pro se request for extension of time and request for appointment

of new appellate counsel. Mother’s counsel moved to withdraw because a

petition for review “may be beyond counsel’s competence.” We abated the

appeal and remanded to the trial court to determine whether Mother was

entitled to appointment of new counsel. Due to a miscommunication in the

district clerk’s office, this Court’s order was not delivered to the trial court.

Mother called this Court multiple times asking for updates, then filed a letter

stating she had been told by someone at the trial court that it “didn’t assign

new appellate counsel” and that she tried but failed to obtain a new lawyer on

her own. Mother ultimately filed a pro se petition for review; later, the trial

court appointed a new appellate attorney. He filed an amended petition for

review, which we granted.

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seek an emergency order granting the Department temporary

possession. See TEX. FAM. CODE §§ 262.001, .102. Within forty-five days

after an order appointing the Department as temporary managing

conservator, the Department must prepare and file a service plan. Id.

§ 263.101. The service plan “shall be developed jointly by the child’s

parents and a representative of the department.” Id. § 263.103(a). It

must be written “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.” Id. § 263.102(d). Among other things,

the plan must:

• be specific;

• be prepared by the Department in conference with the

parents;

• state appropriate deadlines;

• specify the primary permanency goal and at least one

alternative permanency goal;

• state the actions and responsibilities that are necessary for the

parents to take to achieve the plan goal during the period of

the service plan;

• state any specific skills or knowledge that the parents must

acquire or learn, as well as any behavioral changes the parents

must exhibit; and

• prescribe any other term or condition that the Department

determines to be necessary to the service plan’s success.

Id. § 263.102(a)(1), (3)–(5), (7), (8), (11). The parents are required to sign

the plan, and the Department is required to provide them a copy. Id.

§ 263.103(b).

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The Family Code requires the court to hold a status hearing to

review the child’s status and the plan. Id. § 263.201(a). Among other

things, the court must review the plan for reasonableness, accuracy, and

compliance with the court’s orders. Id. § 263.202(b). After reviewing

the plan and making any necessary modifications, “the court shall

incorporate the service plan into the orders of the court and may render

additional appropriate orders to implement or require compliance with

the plan.” Id. § 263.202(b-1).

The Family Code also provides that a service plan may be

amended “at any time.” Id. § 263.104(a). But in developing any

amendment, the Department must work with the parents and inform

them of their rights in connection with the amended plan process. Id.

B. Section 161.001(b)(1)(O)

To terminate parental rights, the Legislature requires the

Department to establish by clear and convincing evidence at least one of

the predicate findings under Family Code Section 161.001(b)(1). And

regardless of which predicate it asserts to justify termination, the

Department must also prove by clear and convincing evidence that

termination is in the child’s best interest. Id. § 161.001(b)(2).

Section 161.001(b)(1) sets forth twenty-two predicate grounds for

termination. Id. § 161.001(b)(1)(A)–(V). Most involve conduct by a

parent that itself either establishes the parent’s intent to abandon the

child 5 or would place the child’s health or well-being in danger through

5 See TEX. FAM. CODE § 161.001(b)(1)(A)–(C) (voluntarily leaving the

child alone or in a non-parent’s possession and either expressing an intent not

to return or failing to provide adequate support and not returning for a

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abuse or neglect. 6 Three predicates concern conduct that demonstrates

the parent has previously engaged in dangerous actions toward a child, 7

and two concern violent conduct toward the child’s other parent. 8

The remaining two predicates permit termination for violating a

court order. Section 161.001(b)(1)(I) authorizes termination if the

parent willfully disobeys a court order that facilitates the investigation

of child abuse or neglect. 9 And Section 161.001(b)(1)(O), the only ground

specified period of time), (G) (abandoning the child with no identification), (K)

(executing an affidavit of relinquishment), (N) (constructively abandoning the

child for six months while in the Department’s conservatorship), (S)

(voluntarily delivering the child to a designated emergency infant care

provider with no expressed intent to return).

6 See TEX. FAM. CODE § 161.001(b)(1)(D), (E) (knowingly endangering

the physical or emotional well-being of the child), (F) (failing to support the

child as able for one year), (H) (voluntarily abandoning a pregnant mother and

failing to provide adequate support), (J) (being the major cause of the child’s

failure to be enrolled in school or the child’s absence from home without the

parents’ consent), (P) (using a controlled substance in a manner that endangers

the child’s health or safety), (Q) (knowingly engaging in criminal conduct

resulting in confinement and inability to care for the child for two years), (R)

(causing the child to be born addicted to alcohol or a controlled substance).

7 See TEX. FAM. CODE § 161.001(b)(1)(L) (parent has been convicted of

conduct causing death or serious injury of a child), (M) (parent had a previous

parent–child relationship terminated based on an endangerment finding

under (D) or (E)), (V) (parent has been convicted of solicitation or online

solicitation of a minor).

8 See TEX. FAM. CODE § 161.001(b)(1)(T) (parent has been convicted of

murder, attempted murder, solicitation to murder, or sexual assault of the

other parent), (U) (parent has been placed on community supervision or

probation for sexual assault of the other parent).

9 See TEX. FAM. CODE § 161.001(b)(1)(I) (authorizing termination if a

parent “contumaciously refused to submit to a reasonable and lawful order of

a court under Subchapter D, Chapter 261”). The subchapter referenced in (I)

addresses investigations of child abuse or neglect and authorizes the court to

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pressed here, permits termination if a parent fails to comply with the

requirements for reunification set forth in the service plan. The statute

provides:

The court may order termination of the parent-child

relationship if the court finds by clear and convincing

evidence:

(1) that the parent has:

...

(O) 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 . . . .

Id. § 161.001(b)(1)(O).

We recently explained that, as its text expressly indicates,

“[s]ubsection (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.” In re N.G.,

577 S.W.3d 230, 238 (Tex. 2019). Section 161.001(b)(1)(O) thus

authorizes termination for failure to comply with a service plan “only

when that plan requires the parent to perform specific actions.” A.L.R.,

646 S.W.3d at 838. And a finding under (O) must be established by clear

issue orders as necessary to allow that investigation to proceed. See id.

§ 261.303. No such orders exist here, so (I) is not an issue in this case.

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and convincing evidence, which the Family Code defines 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.

Notably, termination is not automatic or required, even if the

Department properly proves a parent failed to comply with a specific

plan provision. See id. § 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)). Regardless of whether a predicate ground for

termination is found by the court or a jury, the trial court bears the

ultimate responsibility for determining whether that finding supports

termination. This Court and others have recognized that it is the

violation of “material” requirements of a plan that justify termination

under (O). See In re J.F.C., 96 S.W.3d 256, 278–79 (Tex. 2002) (affirming

termination under (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) (affirming termination under (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.) (affirming termination under

(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 (O) based on mother’s failure

to comply with “material requirements” of her plan). Thus, if the

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noncompliance is trivial or immaterial in light of the plan’s

requirements overall, termination under (O) is not appropriate.

Just last term, we expressed concern that, in some cases, courts

and parties may perceive a termination case brought under (O) as

“easier to prove” because “[c]ourt-ordered service plans can be long and

detailed” and “[t]hese plans can be difficult—perhaps impossible—to

comply with fully.” In re A.A., 670 S.W.3d 520, 531 (Tex. 2023). And we

noted that “our judicial antennae are raised and attuned to potential

misuses of (O).” Id. We granted review in this case to clarify that strict

compliance with every detail of a service plan is not always required to

avoid termination under (O).

III. Analysis

Mother challenges the trial court’s finding that there is clear and

convincing evidence to support termination under

Section 161.001(b)(1)(O). More specifically, she contends there is legally

insufficient evidence that she “failed to comply with the provisions of a

court order that specifically established the actions necessary for the

parent to obtain the return” of her children. 10 TEX. FAM. CODE

§ 161.001(b)(1)(O). The trial court stated that the Family Code requires

“completion of the service plan” and does not allow consideration of

whether Mother had demonstrated “substantial compliance”:

So, it states: Failed to comply with the provisions of the

Court order. It doesn’t say substantially comply, and I will

10 Mother does not dispute that her children were in the Department’s

conservatorship for at least nine months as a result of their removal under

Chapter 262 for abuse or neglect. See TEX. FAM. CODE § 161.001(b)(1)(O).

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not infer that as the Code does not allow me to infer that

provision.

The court of appeals affirmed, stating that Mother “does not

dispute” that she “failed to comply with the service plan.” 2022 WL

1158680, at *2. To the contrary, Mother asserted in the court of appeals,

as she does in this Court, that she complied, or at least substantially

complied, with the plan requirements in question.

We address in turn the plan requirements with which the

Department contends Mother failed to comply: individual

counseling/coping skills, substance abuse classes, and parenting classes.

A. Individual counseling/coping skills

The Department asserts that Mother failed to comply with the

plan’s requirement regarding individual counseling because she was

“unsuccessfully discharged” from her counseling sessions with Browne.

But the plan nowhere requires that Mother achieve any particular

benchmark, such as participating in a specified number of individual

sessions or passing a test of any sort. It merely states that Mother “has

been referred to begin services” with Browne, “will undergo individual

counseling in order to address her needs,” and describes topics to be

addressed:

• “[Mother] will be [sic] address the reason of removal and

explore healthier ways to deal and cope with stressors of life.”

• “[Mother] will also address and learn different ways to cop[e]

with her mood changes and how [to] give her children a safe

and stable environment.”

• “[Mother] will also address and find healthier ways to raise

her children and work with their family structure.”

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It is undisputed that Mother “beg[a]n services” with Browne.

Indeed, the Department’s report filed with the trial court one year after

removal reflected that Mother attended numerous sessions with Browne

and that the Department regarded Mother’s counseling with Browne a

success at the time. The record also reflects that Mother participated in

additional counseling sessions at Grupo Amor and with another

therapist to whom Grupo Amor referred her. Thus, the evidence

conclusively shows Mother did “undergo individual counseling in order

to address her needs.” The Department presented no evidence that

Mother did not at least “address” identified issues of concern as part of

her counseling sessions, either with Browne or with Grupo Amor.

Because the plan contains no specific requirement that Mother attain a

particular benchmark in her individual counseling services with

Browne, the fact that she was discharged by him (apparently at the

Department’s prompting, for communications the plan did not prohibit)

after a year of successful sessions is no evidence that she failed to comply

with the plan’s “specifically established” requirements regarding

individual counseling. See A.L.R., 646 S.W.3d at 837–38 (concluding

that actions in a service plan worded as requests rather than positive

mandates cannot support grounds for termination under (O)). In short,

termination is warranted only for violations of requirements that are

“specifically established” in a service plan. TEX. FAM. CODE

§ 161.001(b)(1)(O). It is not warranted when a parent participates as

the plan requires and the Department waits until trial to reveal that it

was measuring performance against a previously undisclosed

requirement.

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B. Substance abuse and parenting classes

The plan required Mother to “attend, participate and successfully

complete parenting classes,” “submit to substance abuse classes at

S.C.A.N.,” and provide the Department with a certificate of completion

for each. Mother claimed that she could not reach anyone at S.C.A.N.

during the pandemic, so the Department agreed she should instead take

her substance abuse and parenting classes with Browne. 11 It is

undisputed that she attended those classes with Browne for nearly a

year and that she took parenting and substance abuse classes at Grupo

Amor after Browne discharged her. In contrast to the individual

counseling, the plan did specifically establish a requirement that

Mother provide the Department with “a certificate of completion” for

both her parenting and substance abuse classes.

The Department contends Mother failed to complete these classes

before she was discharged by Browne. For her part, Mother testified

that she completed the classes with Grupo Amor and that it provided a

certificate of completion to the Department. The caseworker did not

refute this. She conceded that Mother completed at least some classes

at Grupo Amor. With respect to the certificate requirement, the

caseworker testified only that she “do[es]n’t have a certificate.”

A judgment terminating parental rights is “the ‘death penalty’ of

civil cases.” In re D.T., 625 S.W.3d 62, 69 (Tex. 2021) (quoting In re

11 The plan was never amended to reflect this change in approved

service providers, so if strict compliance were the governing standard, Mother’s

attending classes with Browne instead of S.C.A.N. could justify a finding that

termination is warranted under (O). The Department wisely did not rely on

this variance as a basis for termination.

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K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring)). A

court’s decision to impose this penalty demands more than bureaucratic

or mechanical box-checking. See In re S.M.R., 434 S.W.3d 576, 584 (Tex.

2014) (rejecting the Department’s argument that termination under (O)

was conclusively established where the evidence showed imperfect

compliance with the plan and noting that “[p]arents frequently fall short

of strict compliance with a family-service plan’s requirements”).

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 determining whether the Department has established grounds

for termination under (O), the trial court should consider the nature and

degree of the parent’s alleged noncompliance and the materiality of the

disputed plan requirement in achieving the plan’s stated goal.

At trial, the Department asserted that Mother failed to comply

with the parenting and substance abuse provisions of her plan because

she did not provide a certificate of completion for them. The evidence

about the Department’s receipt of a certificate conflicted, with Mother

testifying that Grupo Amor submitted a certificate to the Department,

and the caseworker testifying, without explanation, only that she did

not have it. But even if the factfinder concluded this evidence

established Mother’s noncompliance with the plan by clear and

convincing evidence, by permitting rather than requiring termination

based on such a finding, Section 161.001(b) affords the trial court

discretion to determine whether the parent’s noncompliance with the

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plan was too trivial to warrant a judgment of termination on that

ground. See TEX. FAM. CODE § 161.001(b). Here, the particular act of

noncompliance in question—the failure of Mother to provide the

Department a certificate demonstrating what the caseworker concedes

she knew—is too trivial and immaterial, in light of the degree of

Mother’s compliance with the plan’s material requirements, to support

termination under (O). See, e.g., J.F.C., 96 S.W.3d at 278–79 (affirming

termination under (O) based on failure to comply with “material

provisions” of the trial court’s orders).

The Department contends that every Texas court of appeals has

concluded that (O) requires “complete compliance with a parent’s service

plan” and that “substantial compliance” is insufficient to avoid

termination. But the cases the Department cites address a different

question: whether a parent who fails to satisfy one or more material

requirements in the service plan can avoid termination under (O) merely

by showing that he complied with the plan’s other requirements. The

answer, resoundingly, is no, and that is all these cases say. In that

sense, these cases are consistent with this Court’s opinion in J.F.C.

There, we concluded that the predicate ground for termination under

(O) was established as a matter of law because it was “undisputed that

both parents failed to comply with numerous, material provisions of

court orders that specifically required their compliance to avoid

restriction or termination of their parental rights.” Id. at 277. While we

recognized there was some evidence of compliance with some plan

requirements, we held that “these sporadic incidents of partial

compliance do not alter the undisputed fact that the parents violated

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many material provisions of the trial court’s orders.” Id. at 278. In other

words, parents cannot overcome the complete failure to comply with a

material requirement by arguing that performing other requirements

constitutes substantial compliance with the plan overall. See In re

M.C.G., 329 S.W.3d 674, 676 (Tex. App.—Houston [14th Dist.] 2010, pet.

denied) (supp. op. on reh’g) (“The Family Code does not provide for

substantial compliance with a family services plan.” (emphasis added)).

There may be provisions in particular service plans for which

nothing less than strict compliance will suffice to avoid termination.

Easy examples are provisions that require a parent suffering from drug

addiction to complete a drug treatment program or require a parent just

released from prison to refrain from re-offending. Even a single or slight

violation of these or other material service plan provisions could justify

termination. But other requirements—particularly those that are

bureaucratic or technical—may be too trivial, in the larger context of the

plan and the parent’s overall performance, to have their breach give rise

to termination. Where, as here, the plan requires a parent to attend

classes with a specified service provider and the parent goes elsewhere

(with the Department’s approval), the parent’s technical noncompliance

with that requirement would not support termination under (O).

Similarly, while the completion of required parenting classes may well

be necessary to obtain a child’s return, the caseworker’s bare assertion

that she “does not have” a piece of paper proving completion of classes,

even if technically required by the plan, cannot support termination

when there is other evidence that the classes were completed. In sum,

not all service plan requirements are created equal, and strict

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compliance with every aspect of every plan requirement is not always

the standard.

Here, the trial court’s sole basis for terminating Mother’s parental

rights was its finding that she violated (O). The court essentially

concluded that strict compliance was required and that the Family Code

did not allow it to “infer” that compliance with a plan’s provisions, while

not perfect, could be sufficient to avoid termination under (O). The court

of appeals likewise rejected Mother’s argument that she substantially

complied with her plan’s requirements, relying on a general rule that

“substantial compliance with a family service plan is not the same as

complete compliance.” 2022 WL 1158680, at *3. Both reflexively

rejected Mother’s testimony and argument about the nature and degree

of her compliance and concluded her failure to achieve strict compliance

with every aspect of the plan required termination.

We hold that the lower courts erred in concluding that strict or

complete compliance is always necessary to avoid a judgment of

termination under (O). While the Department could have presented

evidence that might explain why the failure to satisfy its preferred

manner of compliance with the plan would support termination, no such

evidence appears in the record. In light of Mother’s compliance with the

material provisions of the service plan and the caseworker’s concession

that Mother complied with the plan—just not in the way that suited the

Department—we hold that there is insufficient evidence to support

termination by clear and convincing evidence under (O).

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IV. Conclusion

The trial court and the court of appeals erroneously concluded

that Mother’s failure to strictly comply with all the requirements of her

service plan required termination of her parental rights. A proper

application of (O) is less mechanical. In evaluating whether termination

is warranted, the trial court must ensure that any asserted

noncompliance is of a requirement that is neither unwritten nor vague

but rather “specifically established” in a court-ordered plan.

Additionally, to justify termination, the noncompliance must not be

trivial or immaterial in light of the nature and degree of the parent’s

compliance and the totality of the plan’s requirements. We reverse the

court of appeals’ judgment in part, and we render judgment vacating

those portions of the trial court’s Order of Termination relating to the

termination of Mother’s parental rights. The remainder of the trial

court’s termination order is affirmed.

Rebeca A. Huddle

Justice

OPINION DELIVERED: December 15, 2023

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