Johnson v. DFPS (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Bland)I(termination of parental
rights, constructive abandonment)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Taft, Bland and Sharp
01-08-00795-CV Dashonnon D. Johnson, Sr. v. Department of Family and Protective Services
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips
Dashonnon Johnson appeals the trial court’s judgment terminating his parental rights to his minor
children, D. and J. Johnson contends that the evidence is legally and factually insufficient to support the
trial court’s findings that he constructively abandoned his children, that he failed to comply with a court-
ordered family service plan, and that termination is in the best interests of these children. Johnson
further contends that the appointment of the Texas Department of Family and Protective Services
(TDFPS) as sole managing conservator for the children should be reversed. We conclude that (1)
legally and factually sufficient evidence supports the trial court’s finding that Johnson constructively
abandoned his children, and (2) termination of Johnson’s parental rights is in the best interests of these
children. We therefore affirm.
In the year 2000, Johnson became involved with April Johnson, the mother of his two sons, D., born in
2002, and J., born in 2004. April also has two older daughters from previous relationships. For most of
their relationship, Johnson and April lived in St. Louis, Missouri. Before D. and J. were born, Children’s
Protective Services in Missouri took April’s eldest daughter into protective custody for three years
because April had not ensured her attendance at school.
In October 2006, Johnson and April attempted to marry. Though Johnson and April believed they were
married, testimony at trial indicated that their marriage is likely invalid because April never divorced her
first husband, who is the father of her eldest daughter. Johnson and April separated and reunited on
several occasions. In December 2006, Johnson, April, and the four children moved to Houston.
Johnson testified that they moved to Houston to be closer to April’s family, but April’s oldest daughter
reported to a caseworker that the move happened because the family was homeless, and that they also
had briefly moved to Houston in 2005, because they had been “kicked out” of their apartment. April’s
older daughter testified that her mother often had left them home alone when they were in Missouri,
starting when she was about twelve, and this continued after they moved to Houston. She testified that
Johnson would discover the children home alone when he returned home from work. She also reported
to the caseworker that she had observed crack in baggies in the home, and that Johnson “smokes
weed.” In the caseworker’s report, admitted as an exhibit at trial, April’s second daughter confirmed that
Johnson smoked marijuana and also sold it when they lived in Missouri. Johnson admitted to the
caseworker that he used marijuana in the past “socially and infrequently,” and that he had smoked
marijuana “within the last couple of weeks.” At trial, he testified that he had not used drugs since arriving
in Texas, and that he was wrong about the date that he gave the caseworker. He noted that a recent
drug test was negative.
In Houston, Johnson found employment as a cook at a catering company. Johnson testified that April
found work at Wal-Mart, and their schedules coordinated so that when one was at work, the other could
be home with the children. At some point, however, while Johnson was at work, April regularly
disappeared, and left D. and J. at home with her daughters. April’s younger daughter reported that
sometimes April and Johnson would leave the children with food, and sometimes they would not. When
they did not have food, April’s older daughter “would go out and steal food for them.” Johnson denied
that the children lacked food, and stated that he did the shopping with over $600 in food stamps. April’s
older daughter later testified at trial that Johnson would bring the children food from work, but they
lacked clothing. April never enrolled the older girls in school in Houston.
In January 2007, during the Martin Luther King Day weekend, Johnson went to work. When he returned
home, he learned that April had left, and the children were left alone again in the apartment. After this
episode, Johnson left all of the children with Sheila Cotton, April’s aunt, and her husband. Cotton
enrolled the two older children in school by the end of January. Believing that the children were not
adequately cared for or supervised with April and Johnson, Cotton reported the situation to TDFPS,
which, after an initial investigation, formally placed the children into protective custody with Cotton and
her husband. April and Johnson signed both TDFPS and court-ordered family service plans.
After TDFPS removed the children, Johnson and April lived for a time at the Center for Empowerment, a
housing assistance shelter. At some point, Johnson obtained a unit with three bedrooms, in an effort to
obtain suitable housing in compliance with the service plan. TDFPS, however, examined the unit in
February 2007, and determined it was unsuitable for the children. The report notes that “[t]here was no
furniture in the home,” and “no beds for the children to sleep in.” Johnson claims TDFPS never told him
the reason that the apartment failed the TDFPS inspection. He briefly lost his job due to an injury, and
then later found employment at a Luby’s cafeteria. Johnson ended his relationship with April in
September 2007—nine months after TDFPS placed his children with the Cottons.
In February 2008, just over a year after TDFPS placed the children with the Cottons, Johnson moved
back to St. Louis. In St. Louis, Johnson obtained employment as a cook at a restaurant. He lived in a
converted basement bedroom at his mother’s home, and he testified that if his children were returned to
his custody, they would move into their own two-bedroom apartment, one that he had put on hold,
pending regaining custody of his children. Johnson testified, and Cotton confirmed, that he sent one
four-hundred dollar child support payment before the trial through the TDFPS office. He sent no other
child support during the period from January 2007 through July 2008.
At trial, the assigned caseworker did not appear to testify, but the trial court admitted her initial report
into evidence. TDFPS became involved with the family after a report of negligent supervision of the four
children, ages fourteen, eleven, five, and two. The elder children stated that the mother would leave for
days at a time and be unable to be contacted, and the parents left them alone for extended periods of
time without supervision or adequate food. The report further states that the mother and father “have a
history of substance abuse.” The children described witnessing drug use in the home. The older girls
alleged that April had physically abused them and had forced the oldest daughter into prostitution.
Johnson acknowledged at trial that family members warned him that April was prostituting her daughter.
He testified that he confronted April and the daughter about it, but both denied that it was happening,
and he claimed he was helpless to remedy the situation because April’s oldest daughter was not his
child. That daughter testified that Johnson was a good father and would “break his back” to provide
anything that the children needed, but she confirmed that Johnson smoked marijuana, including after
the family arrived in Texas.
Latoya Washington, the caseworker’s supervisor, testified that TDFPS supplied Johnson and April with a
family service plan with which they were required to comply in order to regain custody of the children.
The family service plan required Johnson to complete parenting classes, complete a psychological
assessment with the Children’s Crisis Care Center, complete a drug and alcohol assessment, maintain a
drug and alcohol free lifestyle, complete drug and alcohol education classes and/or drug counseling if
recommended after completing a drug and alcohol assessment, complete therapy sessions to address
the issues identified in his Children’s Crisis Care Center assessment, provide documentation to verify
stable housing, maintain employment, and actively participate in all court hearings, permanency
planning conferences, and scheduled family visits. Both Washington and Deborah Balfanz, the court-
appointed child advocate, testified that the Cottons currently meet the children’s needs in their home.
Balfanz testified that she participated in arranging visits with Johnson in October and Christmas of 2008,
before he moved to St. Louis. Mrs. Cotton brought the children to the agency for both visits, but
Johnson did not show for either one. She attempted to call Johnson numerous times at the Center for
Empowerment without success. She has visited the Cotton’s home, and believes that it “absolutely” is
meeting D. and J.’s needs. She testified that it was in their best interests that Johnson’s rights be
Cotton testified that Johnson had not seen the children since TDFPS place them in her care. She noted
that she and the children “sat there for hours” after Johnson requested the Christmas visit and he failed
to appear. Cotton stated that Johnson knew that April was not attending to the children when he was
gone because he agreed to leave the children with Cotton. Although she stated, “I’m not saying that Mr.
Johnson was not a good father,” she reported that the children told her about his marijuana use after
they came to live with her. Cotton testified that she was willing to keep the children in her custody
whether or not she was able to adopt them, and that it was in their best interest to be with her and her
husband because “it’s a homely [sic] environment and . . . they’re not having to wonder . . . where we
During the entire time that the children were in TDFPS custody, Johnson recalls visiting them once, in
July 2007. Johnson admitted that he missed two or three visits he scheduled with his children. Johnson
testified that he wanted to visit his children more frequently, but when he was injured, he lacked
transportation or the money to pay for public transportation. Johnson testified that he tried to call his
boys almost every day on his lunch break, but he did not talk to them because he got no answer or no
one was at home. He spoke to them one time.
In his defense against termination, Johnson testified that he had taken steps toward becoming a better
parent to his sons, including ending his relationship with April. Johnson admitted that he had smoked
marijuana in the past, but denied any recent drug use. Johnson testified that he completed a course in
Alcoholics Anonymous. He also completed a parenting class on parenting teenagers. Johnson also
testified that he completed a drug test through the National Screening Center, used by Harris County,
and the clerk’s record contains a drug test from the National Screening Center showing that Johnson
tested negative for drugs in August 2007. Johnson also completed an assessment through the Children’
s Crisis Care Center.
After both sides rested, the trial court asked Cotton some additional questions regarding the best
interests of these children, which included this dialogue:
All right. Ms. Cotton, could you come up for a second? There’s a real serious issue that has to be
answered in my mind about whether or not these young boys should continue to have a relationship with
their father. Or because of what’s gone on in the past in the way of a relationship with their father, would
it be in their best interest for their contacts to be just ended with that father. . . .
You know, and I’m not – I don’t – you know I can’t answer that and I don’t have enough evidence in this
mind at least at this point without some help, more help than what I’ve had here today to figure that one
out. So I want to know what you think about that. You understand what I’m asking?
Cotton replied, “the only thing I can testify in the year and almost half that I’ve had them, at that point
from when they got into my custody, [there] was [a] very lack of his getting to his children.” She pointed
out that she called CPS when, after he left the children with her and they tried to enroll them in school,
he called the following day and told her that her care of the children sounded “like kidnapping charges”
to him. She noted that the children have established a very good routine, but that when Johnson makes
promises to the children and then fails to keep them, she must deal with children who “are crushed and
hurt and disappointed.” She stated that she has “never talked bad” to either D. or J. about their
parents, because “as far as I’m concerned in their little minds for a while they would wonder and they
never asked about them, but I was just there to comfort.”
Ultimately, the trial court found that Johnson violated sections 161.001(1)(N) and (O) of the Texas
Family Code for constructive abandonment of his children and failure to comply with the family service
plan. See Tex. Fam. Code Ann. § 161.001(1)(N), (O) (Vernon 2008). The trial court further found that
termination was in the children’s best interests, and terminated Johnson’s parental rights to D. and J.
The natural right that exists between parents and their children is one of constitutional dimension. See
In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002) (examining constitutional implications of terminating
parental rights). A parent’s right to “the companionship, care, custody and management of his or her
children” is a constitutional interest “far more precious than any property right.” Santosky v. Kramer,
455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92
S. Ct. 1208, 1212 (1972)). Thus, in a case terminating parental rights, we carefully scrutinize the
proceedings and strictly construe the law in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20
In proceedings brought under section 161.001 of the Family Code, TDFPS must establish one or more
of the acts or omissions enumerated under the first subdivision of the statute and must also prove that
termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon 2008); In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005); In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003,
Standard of Review
Due process requires that clear and convincing evidence support a finding of termination. Santosky,
455 U.S. at 747–48, 102 S. Ct. at 1391–92; In re B.L.D., 113 S.W.3d 340, 353–54 (Tex. 2003). To be
legally or factually sufficient under the clear and convincing standard, the evidence must be such that a
fact-finder reasonably could form a firm belief or conviction about the truth of the matter on which the
State bears the burden of proof. In re J.L., 163 S.W.3d at 84; Robinson v. Tex. Dep’t of Protective &
Regulatory Servs., 89 S.W.3d 679, 688 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
In a legal sufficiency challenge, we review the evidence in a light most favorable to the trial court’s
finding, and assume the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-
finder could do so. In re J.L., 163 S.W.3d at 85. We disregard any evidence that a reasonable fact-
finder could have disbelieved, but we do not disregard undisputed facts. Id. In reviewing a challenge to
the factual sufficiency of the evidence, we must give due consideration to the evidence that the fact-
finder reasonably could have found to be clear and convincing, considering all the evidence in the
record, including evidence in support of and contrary to the trial court’s findings. In re J.F.C., 96 S.W.3d
at 266. In reviewing all the evidence, we also keep in mind that the State has the burden of proof in
termination proceedings. See id. at 264.
Basis for Termination
The trial court found that termination of Johnson’s parental rights was proper under sections 161.001(N)
and (O) of the Texas Family Code. Under sections 161.001(1)(N) and (O), a court may order
termination of a parent’s rights if the court finds by clear and convincing evidence that the parent has
(N) constructively abandoned the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services or an authorized agency for not
less than six months, and
(i) the department or authorized agency has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment.
(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 of Family and Protective Services 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
Tex. Fam. Code Ann. § 161.001(1)(N), (O) (Vernon 2008). A court must base a termination of parental
rights upon a finding that a parent engaged in conduct described in one of the alleged grounds, plus a
finding that termination is in the best interest of the children. See id. § 161.001(1)–(2); Latham v. Dep’t
of Family & Protective Servs., 177 S.W.3d 341, 349 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
Johnson contends that the evidence is legally and factually insufficient to support a finding that he
constructively abandoned D. and J. and that he failed to comply with the family service plan. Only one of
these findings is necessary to support an order of termination. See Robinson, 89 S.W.3d at 687. As
only one of these findings is necessary, we discuss the evidence supporting the trial court’s finding that
Johnson constructively abandoned his children.
It is undisputed that D. and J. have been in TDFPS care since January 2007, and thus the children were
in state care for a period longer than six months at the time of trial, in July 2008. In addition, Johnson
acknowledged that he signed a family service plan that included scheduled visitation with the children
and agreed to basic requirements for reunification with his children. The plan provided opportunities for
Johnson to partake in a number of services to restore his full parental rights, including counseling
services, drug and alcohol abuse programs, and parenting classes. Further, TDFPS placed the children
with one of their relatives, whom Johnson earlier had asked for help with the children. TDFPS’s family
service plan requirements, its offer of counseling and other educational services, its assistance with
scheduling visits, and its placement of the children with a known relative supports the trial court’s implied
finding that TDFPS made reasonable efforts to return the child to Johnson. Compliance with TDFPS’s
requirements established minimal safeguards that the children would be adequately fed, housed, and
cared for in Cotton’s custody. Johnson had familiarity with the children’s location and their caregivers,
and had sought the help of these caregivers himself.
Lack of Regular Visitation and Contact
Despite the fact that Johnson knew where his children resided, TDFPS adduced evidence that Johnson
had not regularly visited or maintained any significant contact with his children while they were in the
department’s care. Johnson had not seen his children for more than a year before the trial. He had not
kept several pre-arranged appointments to visit with his children. He did not regularly pay child support.
He moved out of state away from the children. Although he claimed to call the children “daily,” he stated
that often no one answered the phone, and he had only spoken to them once. Cotton testified that the
children did not ask about their father because they had had no significant contact with him in a year
and a half.
Inability to Provide the Children with a Safe Environment
The trial court heard conflicting evidence as to whether Johnson demonstrated an inability to provide the
children with a safe environment. The plan required Johnson to maintain housing suitable for his
children. TDFPS assessed Johnson’s apartment at the Center for Empowerment and found it
unsuitable, noting that it lacked any furniture or beds. Johnson points out that no one assessed the
apartment that he had on hold in St. Louis, but April’s older daughter made a point of telling the trial
court that Johnson’s mom, with whom he resided at the time of the trial, “did drugs” with her mother the
last time that they all lived with her. Johnson acknowledged that he had difficulty providing money for
child support. He lacked a support system in St. Louis aside from his mother, who has a demonstrable
lack of parenting ability, as Johnson himself was raised in foster care. Although Johnson completed
some of the requirements of the family services plan and found employment, he did not submit to the
required routine drug testing, and he currently resided with his mother in a basement room, housing that
he acknowledged was unsuitable. Given Johnson’s history of residing with April, a known child abuser
and drug user, and his then-current living arrangement with his mother (also a serious drug user), the
trial court reasonably could have concluded that Johnson could not provide D. and J. with a safe and
secure environment if they returned to his care.
We hold that the evidence presented at trial, when viewed in a light most favorable to the trial court’s
finding, is legally and factually sufficient to support the trial court’s finding that Johnson constructively
abandoned his children as the Legislature has defined it. See Tex. Fam. Code Ann. § 161.001(1)(N)
(Vernon 2008); In re P.R., 994 S.W.2d 411, 416 (Tex. App.—Fort Worth 1999, no pet.) (trial court’s
finding of constructive abandonment supported by sufficient evidence where mother visited the children
only sporadically, had an unstable employment history, and no permanent residency).
Best Interests of the Children
In determining the best interests of a child, courts examine the following: (1) the desires of the child; (2)
the emotional and physical needs of the child now and in the future; (3) the emotional and physical
danger to the child now and in the future; (4) the parental abilities of the individual seeking custody; (5)
the programs available to assist the individual; (6) the plans for the child by the parent and the individual
seeking custody; (7) the stability of the home; (8) the parent’s acts or omissions that indicate that the
existing parent-child relationship is not a proper one; and (9) any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Holley factors are not
exhaustive; some listed may not apply, while others not included on the list may also be appropriate. In
re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Using these factors, we examine whether the evidence is legally
and factually sufficient to support the trial court’s finding that termination is in D. and J.’s best interests.
The trial court record reflects limited evidence of the children’s desires, given that they were not yet
school age. Washington, Balfanz, and Cotton each testified that the children’s needs were being met by
their placement with the Cottons and that termination was in D. and J.’s best interests. Cotton was there
to comfort the children when their mother and father failed to show up to appointments to visit with them.
While the record indicates that April abused and neglected her daughters, there is no indication that
Johnson abused any child or that D. and J. were in physical danger when they were left in the care of
their older sisters. Johnson’s failure to protect the children from April’s conduct, however, calls into
question his parental abilities and whether he can meet their physical and emotional needs. The
children were left alone on a regular basis for extended periods of time, sometimes, according to the
caseworker’s report, without food. In addition, Johnson smoked marijuana in the home.
April’s eldest daughter testified that Johnson was a good father and would “break his back” to provide
food for them. Johnson took a parenting class at the Center for Empowerment on parenting teenagers,
which may not have been applicable at the time to his young children, but showed an effort in improving
his parenting in the long run. Johnson also testified that he was involved in a single fathers’ support
group in St. Louis. Johnson indicated that if the children were returned to his custody, he planned to
move them to St. Louis, where he had two different apartment options pending their return and where he
had a family support system to help him raise D. and J. However, he currently lived with his mother,
Mary, and April’s eldest daughter testified that while they lived in St. Louis, they lived with Mary, and
“when we were staying with Mary, Mr. Johnson’s mom, [April and Mary] would do drugs together and I
would actually see this for myself.”
The most significant factor weighing against Johnson is his lack of any significant contact or care for his
children. Johnson’s failure to visit his children while they were in TDFPS custody favors the trial court’s
ruling. Johnson offered an excuse that he was injured for part of the time, which prevented him from
working and making money to afford transportation to visit the children and pay child support.
Overall, the record contains evidence that supports the trial court’s conclusion that termination of
Johnson’s parental rights is in the best interests of the children: primarily, his failure to see or spend
any time with his own children, or to have any contact with them during the year they lived with the
Cottons; and secondarily, his inability to provide adequate supervision of the children on an ongoing
basis when they had been in his care, to acknowledge April’s prostitution of her daughter while living with
him, to report this abuse, to report that the older children were not enrolled in school, and to use illegal
drugs with children present in the home. In contrast, the Cottons provided the children with a good
home, stability, and “comfort.” We conclude that legally and factually sufficient evidence supports the
trial court’s finding that termination was in the best interests of these children. The trial court was free to
disbelieve Johnson’s testimony. Even crediting testimony that Johnson had taken measures to improve
as a father, however, the trial court nonetheless reasonably could have formed a firm conviction that the
best interests of the children do not lie with a father who has not seen them in a more than a year and
was helpless to stop abuse of their siblings and drug use in the home when they were in his care.
We hold that the evidence supports the trial court’s findings that Johnson constructively abandoned his
children and that termination is in D. and J.’s best interests. We therefore affirm the judgment of the trial
Panel consists of Judges Bland, Sharp, and Taft.
 Justice Tim Taft, who retired from the First Court of Appeals on June 1, 2009, continues to sit by
assignment for the disposition of this case, which was submitted on April 21, 2009.