in the Interest of S.P.M., E.A.T., and C.S.T., Children

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00282-CV
________________________
IN RE S.P.M., E.A.T. & C.S.T., CHILDREN
On Appeal from the 287th District Court
Bailey County, Texas
Trial Court No. 8411; Honorable Jack Graham, Presiding
January 21, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
This is an accelerated appeal wherein Appellants, Alex and Elizabeth, appeal the
trial court‘s order terminating their parental rights to S.P.M., E.A.T. and C.S.T.1
Elizabeth asserts (1) the evidence is legally and factually insufficient to terminate her
parental rights regarding the children and termination is not in their best interest while
1
To protect the parents‘ and children‘s privacy, we refer to Appellants by their first names and
other interested parties by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2013). See
also TEX. R. APP. P. 9.8(b). Throughout the remainder of this memorandum opinion, provisions of the
Texas Family Code will be cited as ―section ___‖ and ―§ ___.‖
Alex asserts (2) termination of his parental rights regarding E.A.T. and C.S.T. is not in
their best interest.2 We affirm.
BACKGROUND
In September 2007, the children were removed from Alex and Elizabeth‘s home
due to neglectful supervision and domestic violence issues.3 The children were placed
with relatives.4 After an adversary hearing, the trial court found there was sufficient
evidence of a continuing danger to the children‘s physical health or safety and
remaining in the home was contrary to their welfare. Elizabeth and Alex were ordered
―to comply with each requirement set out in the Department‘s original, or any amended,
service plan during the pendency of [the] suit.‖5 Both parents demonstrated partial
compliance with the service plan in 2007 and 2008.
After relatives requested the children be removed in March 2009, the trial court
temporarily returned the children to Elizabeth‘s home with the Department monitoring
2
Alex is the father of E.A.T. and C.S.T., but not S.P.M. S.P.M.‘s father‘s parental rights were also
terminated; however, he does not appeal.
3
The Department‘s affidavit in support of their removal indicates Elizabeth had previously been
instructed not to have contact with Alex due to past investigations of domestic violence in the home.
R.A., Elizabeth‘s child fathered by someone other than Alex, indicated Elizabeth and Alex fought in the
home, and, although Elizabeth told Alex to leave, he would not. R.A. also indicated he was scared of
Alex, Alex spanked him and a younger child had bruises. Elizabeth denied any domestic violence prior to
living with Alex when she was moving from women‘s shelter to shelter with the children. Alex indicated
his contact with Elizabeth was less of a hit and more of a shove, denied any recent domestic violence,
stated he was attending AA meetings, and his last drink was the day before the Department‘s interview.
See In re E.C.R., 402 S.W.3d 239, 240-41 (Tex. 2013); In re R.M.S., No. 01-13-00331-CV, 2013 Tex.
App. LEXIS 12703, at *7-8 (Tex. App.—Houston Oct. 11, 2013, no pet.) (mem. op.) (collected cases cited
therein).
4
At the time of their removal, S.P.M. was four years old, E.A.T. was one year old, and C.S.T. was
less than one year old.
5
Throughout this opinion, the Department for Family and Protective Services will be referred to as
―Department.‖
2
the placement. In April, the trial court found that the children were in danger from
physical abuse and neglect and/or risk of further physical abuse and neglect from
Elizabeth‘s and Alex‘s endangering conduct, acts or failures to act and were again
removed. Prior to removal, Elizabeth told her caseworker that Alex had hit her and she
was taking the children to a safe place. The Department suggested she take the
children to her aunt‘s home or enter Women‘s Protective Services. She refused and
subsequently returned with the children to live with Alex. During the thirty-seven days
the children were under monitored return, S.P.M. had thirteen unexcused absences
from kindergarten. The children were also unkempt and dirty. C.S.T. had what was
originally thought to be diaper rash but turned out to be a yeast infection that required
medical treatment, and S.P.M. complained that Alex rubbed jalapenos in her mouth.
In a subsequent Permanency Hearing Order, the trial court expressly
incorporated the permanency plans for the children and service plans for the parents as
findings of the court and made them part of the court‘s order. The trial court also issued
an Order for Referral to Alternative Dispute Resolution and noticed trial would
commence in October 2009.
Mediation was held resulting in a Rule 11 Agreement.6 In the Agreement, the
parties agreed the Department would place the children in foster care without
terminating Alex‘s or Elizabeth‘s parental rights and postpone the upcoming trial.
Elizabeth and Alex would serve as possessory conservators of their children with
visitation under the Department‘s direction and they agreed to complete the services
6
Because Alex was incarcerated for a parole violation premised on a domestic violence offense,
Alex‘s attorney represented him during negotiations and signed the Agreement on Alex‘s behalf. Neither
parent disputes the terms or authenticity of the Agreement or whether the Agreement was incorporated
into an official court order.
3
outlined in the Agreement. Under the Agreement, Elizabeth agreed to complete the
following services:
1. Anger Management – Richard Gatlin – complete by 1/1/2010
2. Individual Counseling – Dr. Hoke – weekly
3. Update psychological – Dr. Basham – by 3/1/2010
4. Parenting as recommended by service provider – at least 12 hours.
5. Demonstrate appropriate parenting skills during supervised visits.
6. Maintain medication for depression. Sign release of information so
information can be received from her physician.
7. Attend weekly supervised family visits for one hour consistently.
8. Attend regular drug test as requested.
9. [Elizabeth] will maintain full employment and will provide monthly
verification of employment.
10. [Elizabeth] will maintain safe and stable housing adequate to provide
for her children.
11. [Elizabeth] will pay court ordered child support.
12. Follow thru w/ any and all recommendations made by service
providers and [the Department].
13. [Elizabeth] will participate in women‘s group thru Dr. Wilson‘s office.
[She] will initiate by 1/1/09, and complete by May 30, 2010.
14. [Elizabeth] will provide, name, #, address, copy of SS card and DL of
any person who will be in the children‘s future. This info will be used
to run criminal and CPS history.
Under the Agreement, Alex agreed to complete the following services:
1. Parenting
2. Batterer‘s Intervention and Prevention Program
3. Individual Counseling
4. Anger Management
5. Maintain contact with children; in person or by mail
6. Sobriety
7. Complete any and all applicable services in jail or prison.
8. [Alex] will send verification of any services he completes.
9. Upon release [Alex] will demonstrate an ability to maintain safe and
stable home environment, and stable and verifiable employment.
10. Pay court ordered child support.
An Agreed Final Order in Suit Affecting the Parent-child Relationship was
entered ordering ―that . . . Elizabeth . . . and . . . [Alex] complete services as outlined in
Rule 11 agreement.‖ In accordance with that order the children were placed in foster
4
homes. Prior to, and after, the Agreement, the Department advised Elizabeth that she
was not to be together with Alex. Although Elizabeth understood she was not to have
contact with her husband, she did; all the while telling the Department she was not
having any contact. Prior to unification, it was understood that Elizabeth was to become
independent and self-supportive so she and the children would not be dependent on
Alex for their livelihood and care.
Elizabeth and Alex were also granted supervised visitation. The Department
described these subsequent visitations as somewhat chaotic. Elizabeth would sit and
watch the children with little or no interaction, and the children would not listen to her.
Alex did not attend any visitations. In September 2010, the Department received
information Elizabeth was seeing her husband when she represented she was not.
In a second Agreed Final Order filed October 7, 2010, the trial court reiterated its
earlier order that Elizabeth and Alex ―complete services as outlined in [their] Rule 11
agreement.‖7 In December 2010, she moved to Uvalde to live with her husband who
had been released from incarceration. She ceased attending supervised visitation with
her children in Lubbock complaining visitation was not practical due to the necessary
commute. Instead, she contacted them once a week by telephone.8
In a Second Amended Petition for Termination in Suit Affecting the Parent-Child
Relationship filed January 17, 2012,9 the Department alleged Elizabeth and Alex
7
In the trial court‘s subsequent Placement Review Order(s) through 2012, the trial court ―ordered
that all previous orders issued by this Court shall continue without modification.‖
8
Her husband indicated he would listen in on the conversations.
9
The Original Petition was filed November 18, 2010.
5
knowingly placed or knowingly allowed the children to remain in conditions or
surroundings which endangered their physical or emotional well-being; engaged in
conduct or knowingly placed the children with persons who engaged in conduct that
endangered their physical or emotional well-being; failed to support the children in
accordance with [Elizabeth‘s] ability; constructively abandoned the children; and failed
to comply with the provisions of a court order specifically establishing the actions
necessary for the parents to obtain the children‘s return.
In April 2012, the children left foster care and were placed with relatives in
Uvalde. By year‘s end, the children returned to foster care. The relatives indicated they
no longer wanted to provide long-term placement or be considered for adoption
because they could no longer handle C.S.T. and E.A.T. and the children had medical
problems.
Following a bench trial held July 30, 2013,10 the trial court issued an order
terminating Elizabeth‘s and Alex‘s parental rights because they failed to comply with the
terms of their Rule 11 Agreement and Alex failed to pay child support. This appeal
followed.
DISCUSSION
Elizabeth contends the evidence is insufficient to show that she violated section
161.001(1)(O) by failing to comply with the terms of her Agreement. She and Alex also
contend that it is not in the children‘s best interest for their parental rights to be
10
S.P.M. was now ten years old in the fourth grade, E.A.T. was seven years old in the second
grade, and C.S.T. was six years old in the first grade.
6
terminated. In support, they assert there have not been any domestic violence issues
between them since 2009; they are married and have been employed by the same
employer for seven months; their employer provides them with a residence and
personal vehicle; they will have the support of family members; and Elizabeth has
completed many services offered by the Department. We first address Elizabeth‘s
assertion that she complied with the Agreement and next address whether termination
of both parents‘ parental rights is in the children‘s best interest.11
I. STANDARD OF REVIEW
The standard of review in parental rights termination proceedings is clear and
convincing evidence. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). ―This heightened
standard of review is mandated not only by the Family Code, see § 161.001, but also
the Due Process Clause of the United States Constitution. In re E.N.C., 384 S.W.3d
796, 802 (Tex. 2012). ―Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional and
physical interests of the child not be sacrificed merely to preserve that right.‖ In re C.H.,
89 S.W.3d 17, 26 (Tex. 2002). See § 153.001(a)(2) (―The public policy of this state is to
. . . provide a safe, stable, and nonviolent environment for the child.‖).
The evidence is clear and convincing when the proof is such that it produces in
the mind of the trier of fact a firm belief or conviction of the truth of the allegations
sought to be established by the State. In re C.H., 89 S.W.3d at 25. In addition to a
finding that termination is in the child‘s best interest, a finding of only one ground
11
Alex does not contest whether the Department established a statutory ground for termination of
his parental rights. He only contests whether termination was in the best interest of his children.
7
alleged under section 161.001(1) is sufficient to support an order of termination. In re
E.N.C., 384 S.W.3d at 803; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). See §
161.001(1)-(2).
―The distinction between legal and factual sufficiency when the burden of proof is
clear and convincing evidence may be a fine one in some cases, but there is a
distinction in how the evidence is reviewed.‖ In re J.F.C., 96 S.W.3d at 266. In a
termination case, we review legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the fact finder‘s determination and will uphold a
finding if a reasonable fact finder could have formed a firm belief or conviction that those
findings were true. Id. To give appropriate deference to the fact finder‘s conclusions,
we must assume that the jury resolved disputed facts in favor of those findings if it could
reasonably do so. Id. An appellate court should disregard all evidence a reasonable
fact finder could have disbelieved or found incredible. Id.
When reviewing the factual sufficiency of the evidence in a parental termination
case, we view all of the evidence in a neutral light and determine whether a reasonable
fact finder could form a firm belief or conviction that a given finding was true. In re C.H.,
89 S.W.3d at 18-19. We assume the fact finder resolved disputed facts in favor of its
finding if a reasonable fact finder could do so and disregarded evidence that a
reasonable jury would have disbelieved or found incredible. In re J.F.C., 96 S.W.3d at
266. Evidence is factually insufficient if, in light of the entire record, the disputed
evidence that a reasonable fact finder could not have credited in favor of the finding is
so significant that the fact finder could not reasonably have formed a firm belief or
conviction in that finding. Id.
8
II. ELIZABETH – SECTION 161.001(1)(O)
In order for a court to terminate parental rights under section 161.001(1)(O), the
trial court must find by clear and convincing evidence that the parent ―failed to comply
with the provisions of a court order that specifically established the actions necessary
for the parent to obtain the return of the child who has been in the permanent or
temporary managing conservatorship of the [Department] for not less than nine months
as a result of the child‘s removal from the parent under Chapter 262 for the abuse or
neglect of the child.‖ The burden of complying with a court order is on the parent. In re
D.N., 405 S.W.3d 863, 878 (Tex. App.—Amarillo 2013, no pet.) (citing Thompson v.
Tex. Dep’t of Family & Protective Servs., 176 S.W.3d 121, 127 (Tex. App.—Houston
[1st Dist.] 2004, pet. denied), overruled for other reasons, Ruiz v. Tex. Dep’t of Family
and Protective Servs., 212 S.W.3d 804, 813 (Tex. App.—Houston [1st Dist.] 2006, no
pet.)).12
The Family Code does not excuse a failure to comply in assessing whether a
violation of section 161.001(1)(O) has occurred; In re M.C.G., 329 S.W.3d 674, 675-76
(Tex. App.—Houston [14th Dist.] 2010, pet. denied), or provide for substantial
compliance with a family services plan. In re I.G., 383 S.W.3d 763, 771 (Tex. App.—
Amarillo 2012, no pet.) (collected cases cited therein). ―[T]his Court has consistently
held that, termination under subsection (O) does not allow for consideration of excuses
for noncompliance nor does it consider ‗substantial compliance‘ to be same as
completion.‖ Id. See In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.)
12
Neither Appellant disputes whether there is a court order specifically establishing the actions
necessary for their children‘s return, the children were in the Department‘s custody for at least nine
months or that the children were removed as a result of abuse or neglect.
9
(evaluation of whether a parent failed to comply with the provisions of a court-ordered
plan ―does not encompass an evaluation of a parent‘s partial achievement of plan
requirements‖). ―Subsection ‗O‘ looks only for a parent‘s failure to comply with a court
order, without reference to quantity of failure or degree of compliance.‖ In re D.N., 405
S.W.3d at 878. 13
The State‘s evidence at trial establishes that Elizabeth did not fully comply with
the requirement to attend individual counseling (unexplained gap in counseling of at
least three months); complete twelve hours of parenting classes (Elizabeth produced
certificates for eight hours of classes); attend weekly supervised visits with the children
(no visits for an eighteen month period); maintain full-time employment or provide the
Department with monthly verification (no verification provided) and maintain medication
for depression (discontinued medication five years prior to the bench trial).
Elizabeth testified she met many if not all of the plan‘s goals and provided
excuses why she did not complete other goals. Because the trial court is the sole judge
of the credibility of the witnesses and the weight to be given their testimony, we must
defer to the trial court‘s first-hand assessments of the credibility of witnesses and
conclude that the trial court‘s assessments could have informed its view of her
13
A termination finding under subsection (O) cannot be upheld where there is no court order that
specifically establishes the actions necessary for the parent to obtain the return of the child. In re
B.L.R.P., 269 S.W.3d 707, 709-10 (Tex. App.—Amarillo 2008, no pet.). See In re D.N., 405 S.W.3d at
878 (―[T]he Department must provide some evidence that the service plan with which the parent must
comply is incorporated in a court order‖); In re K.F., 402 S.W.3d 497, 504 (Tex. App.—Houston [14th
Dist.] 2013, pet. denied). Here the parents‘ Rule 11 Agreement was expressly incorporated in two
Agreed Final Orders requiring the parents to ―complete services as outlined in the Rule 11 agreement,‖
and was carried forward in the trial court‘s subsequent Placement Review Order(s) through 2012, i.e.,
―ordered that all previous orders issued by this Court shall continue without modification.‖
10
testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (fact finders
may choose to believe one witness and disbelieve another).
Despite Elizabeth‘s achievement of some of the Agreement’s goals, the evidence
clearly establishes that other requirements of the Agreement were not achieved. Her
inability to attend individual counseling sessions, complete parenting classes, attend
weekly supervised visits, provide verification of full-time employment and maintain her
medication for depression are significant deficiencies. The trial court‘s determination
that Elizabeth failed to comply with requirements of the Agreement is supported by
legally and factually sufficient evidence. See In re E.C.R., 402 S.W.3d at 244, 249; In re
J.F.C., 96 S.W.3d at 277-29, 285. See also In re A.T., No. 07-13-00166-CV, 2013 Tex.
App. LEXIS 12691, at *7-8 (Tex. App.—Amarillo Oct. 10, 2013, no pet.) (mem. op.).
Accordingly, that portion of Elizabeth‘s first issue related to section 161.001(1)(O) is
overruled.
III. ELIZABETH AND ALEX – BEST INTEREST OF THE CHILDREN
Elizabeth and Alex challenge the sufficiency of the evidence supporting the trial
court‘s best interest finding. The trial court is given wide latitude in determining the best
interest of a minor child; Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982), and,
while there is a strong presumption that keeping a child with a parent is in the child‘s
best interest, it is also presumed that prompt and permanent placement of the child in a
safe environment is in the child‘s best interest. In re D.S., 333 S.W.3d 379, 383 (Tex.
App.—Amarillo 2011, no pet.).
11
In conducting the best interest analysis, we evaluate ―[t]he best interest of the
child, not the parent.‖ Id. at 384. We consider, among other evidence, the Holley
factors which include: (1) the child‘s desires; (2) the child‘s present and future
emotional and physical needs; (3) any present or future emotional and physical danger
to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs
available to assist the individuals seeking custody to promote the child‘s best interest;
(6) the plans for the child by the individuals or agency seeking custody; (7) the stability
of the home or proposed placement; (8) the parent‘s acts or omissions which may
indicate that the existing parent-child relationship is improper; and (9) any excuse for
the parent‘s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1970).
These considerations are not exhaustive nor is proof of each a condition precedent to
termination of the parent-child relationship. In re D.S., 333 S.W.3d at 383-84 (citing In
re C.H., 89 S.W.3d at 27). Other factors not on the list may be considered when
appropriate and undisputed evidence of just one factor may be sufficient in a particular
case to support a finding that termination is in the child‘s best interest. In re C.H., 89
S.W.3d at 27.
The evidence supporting the statutory grounds for termination may be used to
support a finding that the best interest of the children warrants termination of the parent-
child relationship; id. at 28; In re P.E.W., 105 S.W.3d 771, 779 (Tex. App.—Amarillo
2003, no pet.), and a best interest analysis may also consider circumstantial evidence,
subjective factors, and the totality of circumstances as well as the direct evidence. In re
D.S., 333 S.W.3d at 384. In addition, a parent‘s future conduct may be measured by his
12
or her past conduct in determining whether it is in the child‘s best interest to terminate
parental rights. Id.
Of the three children, the Department indicated S.P.M. ―desperately‖ wants to be
adopted but would still like to see her mother. See In re A.M., 385 S.W.3d 74, 82 (Tex.
App.—Waco 2012, pet. denied) (evidence that a child enjoys visits with parent is
marginally relevant). There was no evidence of E.A.T.‘s and C.S.T.‘s desires for
placement. Factor one slightly weighs in favor of termination.
The children‘s present and future emotional and physical needs will be better met
if they remain in foster care. All three children are currently receiving weekly individual
counseling. E.A.T. and C.S.T. suffer from ADHD and are receiving medication. E.A.T.
has been diagnosed with post-traumatic stress syndrome and receives therapy three
times weekly. All children have passed their current grade and will be moving up a
grade in school next year. The Department also indicates there is a high possibility the
children will be adopted, and there are homes seeking to adopt—pending the outcome
of the termination proceedings.
Alex and Elizabeth indicate they have been working the past seven months on a
ranch. Elizabeth works part-time making $302 bi-weekly while Alex works full-time
making $1400 per month.14 The children would live in a three bedroom trailer provided
by the parents‘ employer. The parents would live in one bedroom, Elizabeth‘s mother
would live in another and the three children would share a single bedroom. They do not
have medical insurance and did not indicate how they plan to take care of the children‘s
14
Alex also indicates he pays $800 per month child support—possibly for other children he has
fathered.
13
counseling and other medical needs. The children‘s school is forty-five miles away and
they would either catch a bus at the ranch‘s front gate or Elizabeth‘s mother would drive
them to school. Given the parents‘ poor performance in the past regarding school
attendance and their lack of any plan to meet the children‘s emotional or medical needs,
we find factor two weighs in favor of termination.
The parents lack any plan to stem the children‘s exposure to possible mental
and/or physical danger. Alex has completed no services related to anger management
or domestic violence under the Agreement; Elizabeth has a history of discounting or
denying domestic violence in the home; and, after working services for more than a
year, the children were returned to both parents in 2009 only to be removed
approximately a month later for domestic violence issues. In addition, when the children
were removed in 2009, S.P.M. had an inordinate amount of absences from
kindergarten, C.S.T. had a yeast infection that required medical treatment and S.P.M.
complained that Alex rubbed jalapenos in her mouth. Since 2009, Alex has had no
physical contact with the children and Elizabeth missed her supervised visitation for
fifteen months due to the inconvenient commute.
So long as Alex remains a part of the household while exhibiting a complete lack
of willingness to alter his violent behavior, Elizabeth discounts or denies domestic
violence was, or is, a problem in their relationship and she is dependent on Alex for
living space and support, there is a substantial present and future emotional/physical
danger to the children if they are placed with their parents. The Department, on the
other hand, has a viable plan to have the children placed in homes where their
emotional, educational and medical needs will be met. Further, because of Elizabeth‘s
14
poor performance during the thirty-seven days she had to assure S.P.M. attended
kindergarten in 2009, we lack confidence Elizabeth will assure her children will regularly
attend school forty-five miles away from the ranch. In addition, while programs may be
available to assist Alex and Elizabeth with parenting the children, Alex‘s lack of interest
in performing services and Elizabeth‘s spotty performance provide little assurance they
will fully participate in any available services. Thus, factors three, four, five and six also
weigh in favor of termination.
Because the children have had four different foster placements and two family
placements since 2007, the stability of their placement weighs heavily in our analysis.
The children have been in their current placement since December 2012. They are
doing well in school, receiving counseling and having their medical needs met. Their
current foster family wants to adopt the children but is awaiting conclusion of these
proceedings. The Department‘s caseworkers and supervisor are unanimous in their
recommendation that the children remain placed with their foster family. They believe
Elizabeth continually puts the children at risk due to her dependency on Alex and lack of
internalization of what has been taught in the services she has attended. The
Department‘s current supervisor, who has been a part of the case since the children‘s
initial removal in 2007, indicates Elizabeth has had other relationships where she
reported violence, missed face-to-face visits with her children for fifteen months due to
an inconvenient commute and has not attended services since she moved to Uvalde in
December 2010. After her move, Elizabeth oftentimes responded with hostility when
the Department contacted her. Alex was also incarcerated twice during the proceedings
and Elizabeth was convicted of filing a false police report. The latest recommendation
15
by Dr. Wilbanks, who saw Elizabeth for individual counseling, indicates she did not
participate in group sessions, blamed the Department for the children‘s removal, and
failed to submit a final report or internalize anything she learned.
The evidence showed Alex and Elizabeth have a history of neglecting and
endangering the children, of exposing them to domestic violence, and of unstable
housing, employment and relationships. Elizabeth‘s future plans are to include Alex in
their future lives—a father who has shown no interest in working services and is the
source of the domestic violence in the household. True, while Elizabeth and Alex have
obtained employment that allows them to have a home and transportation, ―evidence of
a recent improvement does not absolve a parent of a history of irresponsible choices.‖
In re A.M., 385 S.W.3d at 83 (―The need for permanence is a paramount consideration
for a child‘s present and future physical emotional needs.‖). Factor seven weighs in
favor of termination.
The goal of establishing a stable, permanent home for a child is a compelling
state interest. Dupree v. Tex. Dep’t of Protective and Regulatory Servs., 907 S.W.2d
81, 87 (Tex. App.—Dallas 1995, no writ). While we acknowledge there was a conflict in
the testimony regarding the frequency with which domestic violence occurred in the
home and there was some testimony that would have allowed the trial court to conclude
that Alex no longer abused Elizabeth, it is within the province of the fact finder to resolve
conflicts in the evidence. In re I.G., 383 S.W.3d at 774. The failure of Elizabeth and
Alex to comply with important provisions of their Agreement gives rise to a reasonable
inference that they may not have the parental abilities to put the best interest of their
children first. In re J.N., 301 S.W.3d 429, 434 (Tex. App.—Amarillo 2010, pet. denied).
16
While there are programs available to assist them in promoting the children‘s best
interest, their failure to comply with the trial court‘s order and avail themselves of such
programs renders the availability of such programs less significant. Id. Given the
lengthy duration of these proceedings, the children‘s parents have failed to show they
have been stable enough parents for any prolonged period or that the pattern of
domestic violence would be discontinued. Given their past performance, the trial court,
as fact finder, was free to reject their assertions of future stability and having learned
from their mistakes. See In re A.M., 385 S.W.3d at 83. Based on this evidence, the trial
court was entitled to determine that permanency could only be achieved through
termination and adoption. Factors eight and nine also weigh in favor of termination.
Considering all the evidence in relation to the best interest factors in a light most
favorable to the trial court‘s finding, we conclude a reasonable trier of fact could have
formed a firm belief or conviction that termination was in the children‘s best interest.
Moreover, viewing all the evidence in a neutral light, we conclude that the disputed and
undisputed evidence favoring and disfavoring the finding permits a reasonable finder of
fact to form a firm belief or conviction that termination is in the children‘s best interest.
Accordingly, the evidence supporting the court‘s finding that termination of the father‘s
and mother‘s parental rights was in the children‘s best interest is legally and factually
sufficient. The second half of Elizabeth‘s first issue and Alex‘s second issue are
overruled.
CONCLUSION
The trial court‘s judgment is affirmed.
Patrick A. Pirtle
Justice
17