L. Z. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00113-CV
L. Z., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 395TH JUDICIAL DISTRICT
NO. 10-2616-F395, HONORABLE MICHAEL JERGINS, JUDGE PRESIDING
MEMORANDUM OPINION
L.Z. appeals the trial court’s order terminating his parental rights to his child, J.Z.,
following a bench trial.1 L.Z. challenges the legal sufficiency of the evidence to support the order
of termination for failure to complete the family service plan, see Tex. Fam. Code Ann.
§ 161.001(1)(O) (West Supp. 2011), and the factual sufficiency of the evidence to support the trial
court’s conclusion that termination was in the best interest of J.Z., see id. § 161.001(2) (West 2008).
Because we conclude that the evidence was legally and factually sufficient, we affirm the trial
court’s order.2
1
We use initials to refer to appellant and his child. See Tex. R. App. P. 9.8.
2
J.Z.’s mother voluntarily relinquished her parental rights and is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The appellate record shows that L.Z. has an extended history with child protective
services in this state and two others. He and his former girlfriend were contacted by child protective
services in Florida in response to four separate referrals in 2001 and 2003 regarding family violence
and were investigated in Maryland in 2005 concerning neglectful supervision of one or more of their
three children. L.Z. moved to Texas in 2007 or 2008 and has been actively under investigation or
receiving services from the Department since 2008 as a result of issues with alcoholism, drug
addiction, and anger management and domestic violence. The Department removed his three older
children in July 2009. L.Z. completed an intensive outpatient drug and alcohol treatment program
in December 2009, and three months later he was arrested for public intoxication.
During the summer of 2008, L.Z. had become romantically involved with J.Z.’s
mother, S.W., whom he met in February 2008, and on March 10, 2010, while the case concerning
L.Z.’s three older children was still pending, J.Z. was born. On July 4, 2010, L.Z. admittedly
smoked marijuana. On August 11, 2010, two referrals were made to the Department regarding J.Z.
The first alleged neglectful supervision by L.Z. and S.W. and included allegations of domestic
violence. The second alleged physical abuse of J.Z. by L.Z., specifically that he had held J.Z. upside
down by his ankles and dropped him onto a pillow on the floor. The Department investigated and
found no external evidence of physical abuse against J.Z. Although both L.Z. and S.W. denied
allegations of domestic violence, the Department later learned that there had been approximately
eight other law enforcement calls to the home for verbal disturbance, physical disturbance, and
welfare checks, including one on August 11, 2010, prior to the referrals. The Department also
2
learned of L.Z.’s prior arrest in Texas for public intoxication, which he had failed to disclose, and
his extensive out-of-state criminal history.3 Subsequent drug test reports for both L.Z. and S.W.
were negative; however, both samples were “diluted.”
On August 19, 2010, with the agreement of L.Z. and S.W., the Department placed J.Z.
with his maternal grandparents. On August 20, 2010, L.Z.’s referral to Family Based Safety Services
was rejected based on his prior completion of services with no signs of progression. On September
13, 2010, the grandparents informed the Department that they could no longer provide for J.Z., and
that same day the Department took custody, filed an original petition for protection of a child,
conservatorship, and termination, and was appointed temporary managing conservator of J.Z. The
petition alleged several grounds for termination, including failure to comply with the provisions of
the court’s order that established the actions necessary to obtain the return of the child. See id.
§ 161.001(1)(O). On September 24, 2010, the Department filed its report to the court, which
included the determinations regarding the allegations made in the referrals, proceeding under the
neglectful supervision allegation. Physical abuse, the second allegation, was ruled out.
The Department placed J.Z. in foster care and prepared a family service plan for L.Z.
The plan stated that the permanency goal was to reunite the family. The tasks assigned to L.Z.
included various types of therapy, a psychological examination, and refraining from criminal activity.
In November 2010, L.Z. was arrested for driving while intoxicated, and several days later he
relinquished his parental rights to his three older children. In January 2011, the Department filed a
3
The record reflects arrests for stalking (two), burglary, trespass, criminal mischief, battery
(two), violation of a protective order (three), second degree assault, consuming alcohol on public
property, and assault causing bodily injury.
3
permanency report stating family reunification as the goal. In September 2011, S.W. moved out of
the home she shared with L.Z., and during the first week of December 2011, L.Z. was again arrested
for driving while intoxicated. Ultimately, the Department determined that the goal of reunification
was unattainable and filed its final permanency report on December 6, 2011, indicating a goal of
placement with a relative.4 The case proceeded to a bench trial in the following week.5 The trial
court heard testimony from L.Z., S.W., J.Z.’s foster father, the Department investigator and
caseworker, L.Z.’s pastor, therapist, and outpatient counselor, the psychologist who evaluated L.Z.,
and L.Z.’s mother.
L.Z.’s Testimony
L.Z. testified that the Department initially became involved with him concerning his
three older children because of his issues with alcoholism, drug addition, and anger management and
that his drug of choice was marijuana. He stated that he voluntarily entered an inpatient recovery
center in late 2008, where he spent four months learning faith-based skills for coping with his issues.
He also stated that he had completed intensive outpatient treatment in connection with the prior
Department case in December 2009 but subsequently relapsed in March, July, and November 2010,
and more recently in May 2011, following his intensive outpatient treatment, and again in
September 2011, after S.W. left him. He explained that in May 2011 he began drinking again and
4
The report stated that a home study had been approved on J.Z.’s maternal grandmother, one
would be ordered on his paternal grandmother, and the foster family wanted to be considered for
long-term placement if the parents’ rights were terminated.
5
In exchange for L.Z.’s withdrawal of his jury demand, the Department proceeded to trial
on only one ground for termination, that stated in section 161.001(1)(O). See Tex. Fam. Code Ann.
§ 161.001(1)(O) (West Supp. 2011).
4
using synthetic marijuana. He acknowledged withholding information from the Department and his
therapist out of “fear of the department” and that he had repeatedly violated court orders.
Of the tasks required in his service plan, L.Z. testified that he had completed anger
management classes, couples and individual therapy, and outpatient treatment; taken a psychological
examination and submitted to random drug testing; and done his best to remain employed so as to
provide financial resources for J.Z. He further testified that he had failed to complete aftercare
following outpatient treatment, cognitive therapy, and a batterers’ intervention program, refrain from
criminal activity, or attend three Alcoholics Anonymous (AA) or Narcotics Anonymous (NA)
meetings a week, stating that he completed four steps of the twelve-step program. Regarding the
requirement to provide stable and suitable housing for J.Z., L.Z. testified that he has resided in
two places during the pendency of the case, currently rented a room in a house, and couldn’t attend
his scheduled appointment with the caseworker, so that she has not seen his current residence.
Concerning his cooperation with the Department in planning goals, L.Z. stated that he had not been
present for all of the team meetings and had attended two of the court settings. As for visitation with
J.Z., L.Z. testified that he had not been “to every single one of them, but [had] . . . gone to visits with
him,” had transportation issues, and had spent three hours with J.Z. in the last three months. L.Z.
admitted to domestic violence in his prior and current relationships but denied ever being physically
abusive with S.W. He also stated that the issues behind the removal of his three older children—his
problems with alcohol abuse, drug addition, and domestic violence—were still issues for him. He
5
further testified that he was in relapse and was not currently a safe caregiver for J.Z. but his mother
would be and he would like to retain his parental rights and take J.Z. to Florida to live with
his mother.
S.W.’s Testimony
S.W. testified that around the time that J.Z. was born, L.Z. was using marijuana
“pretty frequently” and drank two to three times a week on his days off. She further testified that he
became violent or aggressive on multiple occasions, when he was drinking, and that she lied to
investigators and her therapists when she denied domestic violence in their home, including denying
that L.Z. held J.Z. by his ankles and dropped him onto a pillow. She also described two instances
of L.Z.’s violence against her during the pendency of the Department case and stated that she sought
a protective order in August 2010 but was told by the police that since she had not filed any previous
reports, they could not help her. S.W. further testified that L.Z. continued to drink and use synthetic
marijuana during his outpatient treatment, took someone else’s urine to the drug tests—twice, she
believed—and that the longest time she or L.Z. had been clean and sober was four to five months.
S.W. acknowledged that she withheld her criminal history from the Department and
has assaulted L.Z. in the past. She stated that she intended to relinquish her parental rights because
she feels it is in J.Z.’s best interest, that the foster family “love[s] him and . . . would take him as
their own,” and that it is obvious from seeing them together that J.Z. loves his foster parents more
than her or L.Z. S.W. testified that she understood that termination of L.Z.’s rights would end all
need for future contact between her and L.Z. and that she wanted a new start, but that she was
testifying as she was because she believes J.Z. deserves to live in a home free of drugs, alcohol
6
abuse, and domestic violence and not because she hates L.Z. Regarding possible placement with her
mother, Sh.W., S.W. testified that Sh.W. “tends to be quite dramatic” and “creates stress.” S.W.
acknowledged that she had previously testified that Sh.W. had abused her and had also requested that
J.Z. be placed with Sh.W.
Foster Father’s Testimony
J.Z.’s foster father testified that J.Z. had lived with him and his family since
October 2010, was doing extremely well, and was “happy . . . thriving . . . [and] learning lots of
things and learning new words.” He stated that he and his wife love J.Z. and J.Z. considers them his
parents. He further testified that his plans for J.Z. are to “continue watching him grow” and to
facilitate his interest in music and drumming, including by continuing the family’s participation in
an orchestra project at the University of Texas. He stated that J.Z. had lived most of his life with him
and he believes he could provide J.Z. stability.
Paternal Grandmother’s Testimony
L.Z.’s mother testified, through an interpreter, that she was born in Nicaragua and
lives in Miami, where she has lived for the past twenty-three years. She stated that L.Z. has been
using marijuana and alcohol since he was sixteen years old, started therapy because of it, and lied
to her about abstaining. She also stated that she had seen “a little” change in L.Z. in the past year
but “behind a good man, there’s a good woman, and that is something he has not had.” L.Z.’s
mother further testified that she divorced L.Z.’s father because of domestic violence. She stated that
she is seeking custody of J.Z. on her own, has the financial resources to raise him, and if L.Z. were
7
to get J.Z. back, she believes L.Z. would “give him to [her] care.” She testified that the foster family
is “good,” she will work with them if she gets custody of J.Z., and she would be able to withhold J.Z.
from L.Z. and grant access to S.W. if S.W. were clean and sober and L.Z. were not.
Caseworker’s Testimony
Kerrie Judice testified that she had been involved with L.Z. on behalf of the
Department consistently since June 2009, her concerns in both cases were substance abuse and
domestic violence, and L.Z. has not addressed those concerns. She stated that originally
the permanency goal was reunification but the goal changed when the Department learned in
October 2011 of “continuing concerns.” Judice testified that during her discussions with L.Z., he
had not been forthcoming about sobriety and relapse. She further testified that she would not have
supported reunification in the initial permanency plan if she had known of some of the events she
had heard about in testimony that day, including continued drug and alcohol use. Regarding L.Z.’s
service plan, Judice testified that, in her opinion, he had not completed it and that although he had
completed some of the tasks, her primary concern was his “actually using . . . the tools that he’s
learned in his services” and “actually[] making the changes.” She acknowledged that relapse is a
possibility in most cases and that the goal is to understand the triggers for relapse but stated that
while L.Z. seems to understand his triggers, his actions do not indicate that “he can do anything
about it.” Judice further testified that she agreed that J.Z. would not be safe with L.Z. She
confirmed that the Department had previously recommended placement with J.Z.’s maternal
grandmother, Sh.W., but expressed concerns that Sh.W. exhibited “emotional behavior.” She
8
acknowledged that S.W. had previously testified that Sh.W. had physically abused her and stated that
for that reason the Department’s recommendation had included that Sh.W. enter counseling.
Investigator’s Testimony
Bernadette Yupit-Martinez testified that she was the primary investigator on the case
and the investigation lasted approximately one and one-half months. She stated that her ruling on
the allegation of neglectful supervision due to allegations of drinking and domestic violence was
“reason to believe” and that her disposition of the allegation of physical abuse of J.Z. by L.Z. was
“ruled out.” She further testified that if she had subsequently learned that the allegation that J.Z. had
been dangled by his ankles had been confirmed by one of the parents present, she would not have
ruled out physical abuse.
Therapist’s Testimony
Curtis Lawrence testified that he is a licensed clinical social worker, was L.Z.’s
individual therapist, and conducted three couples sessions with L.Z. and S.W. and that L.Z. actively
participated in therapy. Lawrence further testified that although he has seen some changes in
L.Z.—showing more appropriate behaviors and an overall ability to manage his anger and take
accountability for his actions—L.Z. has been in relapse since July 2011, is not using the tools he has
learned to the extent Lawrence would like, is not a safe parent, and cannot provide the type of
parenting J.Z. needs. He also stated that it concerns him that after being in treatment three times in
the last three years, L.Z. is still abusing alcohol and marijuana and expressed concerned about L.Z.’s
mental health because relapse can cause depression and lead to further problems.
9
Psychologist’s Testimony
William Dubin testified concerning the results of the psychological exam he
administered on L.Z. on September 25, 2010, which included an initial interview of thirty to
forty-five minutes, followed by a series of tests. Dubin stated that L.Z. scored high in the vocabulary
portion of the I.Q. test but much lower in “abstraction,” making his “full scale” I.Q. fall into the “dull
normal range,” which, he noted, was significantly less than one would expect from L.Z.’s high
vocabulary. Dubin further testified that L.Z.’s performance on the Wechsler Adult Intelligence Scale
ranged from poor to low average and that he interpreted the results to indicate that L.Z.’s ability to
parent a small child is less that is apparent from a casual meeting with L.Z. and that his overall
intellect is inadequate for successful parenting.
Dubin also testified that L.Z. suffers from impulsivity and that “this irresponsibility
component” was the “primary finding of [his] report.” He explained that there are different kinds
of irresponsibility, L.Z.’s irresponsibility is “predatory, which is very serious,” and people with a
“predatory or psychopathic sort of dangerousness . . . simply disregard the rights of others . . . and
they’ll use others like objects.” He further stated that L.Z.’s exhibiting predatory characteristics
caused him to have concerns regarding L.Z.’s ability to parent successfully. Additionally, Dubin
testified that L.Z. has narcissistic personality disorder with obsessive compulsive and anti-social
personality traits, explaining that “psychopathy is considered to be . . . the combination of narcissism
and anti-social characteristics.” He stated that “one of the major characteristics of psychopaths is
glibness and superficial charm, the ability to convince people like [him] or a therapist or the Court
that he’s, in fact a good person when, in fact, that’s not the case” and that “psychopaths are
10
extraordinarily competent in passing courses and convincing people that they are good at what
they’re trying to convince people they’re good at.” He also related his opinion that L.Z. is more
interested in winning the case than actually having custody of J.Z.
Dubin disagreed that L.Z.’s therapist would be in a better position to comment on
L.Z.’s ability to parent because the therapist’s loyalty is to L.Z. while his loyalty is to the truth and
his concern is not for L.Z. but for J.Z. Additionally, he testified that psychopaths “are very
charming, very good at conning and manipulative” and “if a psychopath wanted to bond with a
therapist, they’d be extraordinarily good at it.” Dubin stated that if admitting to wrongdoings would
help L.Z.’s position, he would not be surprised to learn that L.Z. had made such admissions and that
it would be consistent with his diagnosis if L.Z. had begun to admit to wrongdoings after things
started to go poorly for him. Finally, Dubin testified that psychopaths are resistant to therapy and
tend not to make much change, this is the case with L.Z., and he would not feel comfortable
recommending that L.Z. be given custody of J.Z.
The Trial Court’s Ruling
After the close of evidence, the trial court determined that L.Z.’s parental rights
should be terminated, finding by clear and convincing evidence that L.Z. had failed to comply with
the family service plan and that termination was in the best interest of J.Z. The trial court appointed
the Department permanent managing conservator of the children. In response to a request by
L.Z., the trial court made findings of fact and conclusions of law. The trial court’s findings of
fact included:
11
2. The Court finds that the Child the subject of this suit has been in the
Department’s conservatorship since the 13th day of September, 2010. The
Court finds that the child was removed from [L.Z.] due to concerns of
neglectful supervision and risk of physical abuse.
3. The Court finds that [L.Z.] has failed to demonstrate the ability to alleviate
the concerns of abuse and/or neglect. The Court finds that [L.Z.] is not
capable of providing the child with a safe environment.
4. The Court finds that [L.Z.] did not complete the court-ordered services and
other provisions that specifically established the actions necessary for him to
obtain the return of the children. [L.Z.] failed to attend cognitive education
classes, failed to maintain stable and suitable housing, did not consistently
attend AA/NA, was unable to refrain from criminal activity, did not
consistently visit with his child, demonstrated an inability or unwillingness
to refrain from drug use, and failed to follow through with the aftercare
recommendations from his substance abuse treatment program.
5. The Court finds that [L.Z.] has significant and extensive history of
involvement with the Department and of engaging in criminal activity.
6. The Court finds that [L.Z.] admitted to a long history of substance abuse and
has yet to establish a pattern of sobriety.
7. The Court finds that, under the totality of the circumstances, termination of
the parent child relationship between [L.Z.] and the child was in the best
interest of the child.
ANALYSIS
To terminate a parent’s rights to a child under section 161.001 of the family code, the
Department must establish that (1) the parent has committed conduct prohibited by section
161.001(1), and (2) termination is in the best interest of the child. See Tex. Fam. Code Ann.
§ 161.001(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Because “‘termination is a drastic
remedy and is of [great] weight and gravity,’” see In re C.H., 89 S.W.3d 17, 23 (Tex. 2002) (quoting
In re G.M., 596 S.W.2d 846, 847 (Tex. 1980)), grounds for termination must be supported by clear
12
and convincing evidence, Tex. Fam. Code Ann. §§ 161.001, .206(a) (West 2008); In re J.F.C.,
96 S.W.3d 256, 263 (Tex. 2002) (due process requires clear and convincing standard of proof in
parental termination cases). The clear and convincing standard is “‘that measure or degree of proof
which 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.’” In re C.H., 89 S.W.3d at 23 (quoting State v. Addington,
588 S.W.2d 569, 570 (Tex. 1979)); see also Tex. Fam. Code Ann. § 101.007 (West 2008) (defining
clear and convincing evidence).
L.Z. raises legal and factual sufficiency challenges to the evidence. When reviewing
the legal sufficiency of the evidence to support a termination, we “look at all the evidence in the light
most favorable to the finding to determine whether a reasonable trier of fact could have formed a
firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d at 266. To give
appropriate deference to the factfinder’s conclusions and the role of a reviewing court, we must
“assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so.” Id. In conducting a factual sufficiency review of the evidence to support a termination
finding, we “must give due consideration to evidence that the factfinder could reasonably have found
to be clear and convincing.” Id. (citing In re C.H., 89 S.W.3d at 25); see also In re H.R.M.,
209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (describing factual sufficiency standard of review in
appeals from termination orders). “If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder
could not reasonably have formed a firm belief or conviction, then the evidence is factually
insufficient.” In re J.F.C., 96 S.W.3d at 266.
13
Compliance with Family Service Plan
In his first issue, L.Z. contends that the evidence is legally insufficient to support
termination of his parental rights under section 161.001(1)(O), which provides:
The court may order termination of the parent-child relationship if the court
finds by clear and convincing evidence:
(1) that the parent
...
(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 the child.
Tex. Fam. Code Ann. § 161.001(1)(O). L.Z. advances three arguments in support of his position that
the evidence is legally insufficient. We address each argument in turn.
Removal for abuse or neglect
We turn first to L.Z.’s argument that termination under this section was improper
because J.Z. was not removed for “abuse or neglect” but was instead removed based only on
“concerns” of abuse or neglect. The supreme court has not expressly addressed whether removal as
a result of “abuse or neglect” is a required element of proof for termination under section
161.001(1)(O). See In re A.A.A., 265 S.W.3d 507, 514 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied) (discussing In re J.F.C., 96 S.W.3d at 278–79, in which supreme court found conduct
described in 161.001(1)(O) established as matter of law without addressing issue of removal for
14
abuse or neglect). However, a number of our sister courts have held that it is. See, e.g., id. at 515;
In re S.A.P., 169 S.W.3d 685, 705 (Tex. App.—Waco 2005, no pet.); In re H.S.V.,
No. 04-12-00150-CV, 2012 Tex. App. LEXIS 5470, at *9–10 (Tex. App.—San Antonio
July 11, 2012, no pet.) (mem. op.); In re J.T.G., No. 14-10-00972-CV, 2012 Tex. App. LEXIS 430,
at *42 (Tex. App.—Houston [14th Dist.] Jan. 19, 2012, pet. filed) (mem. op.); In re M.B.,
No. 12-04-00350-CV, 2005 Tex. App. LEXIS 9939, at *11 (Tex. App.—Tyler Nov. 30, 2005, no
pet.) (mem. op.). Therefore, as the Dallas Court of Appeals has done, we assume without deciding
that removal for the abuse or neglect of the child is an element under section 161.001(1)(O). See In
re E.S.C., 287 S.W.3d 471, 475 (Tex. App.—Dallas 2009, pet. denied sub nom. Roundtree v. Texas
Dep’t of Family & Protective Servs., No. 09-0653, 2010 Tex. LEXIS 92, at *1 (Tex. App.—Dallas
Jan. 15, 2010)). The determination of whether removal was as a result of abuse or neglect is made
on a case-by-case basis. In re A.A.A., 265 S.W.3d at 515; E.S.C., 287 S.W.3d at 475; In re J.T.G.,
2012 Tex. App. LEXIS 430, at *42.
Here, the undisputed evidence showed that the Department became involved with
J.Z. because it received two referrals alleging neglectful supervision and physical abuse. The family
service plan, which was admitted as an exhibit at trial, states that the reason for the Department’s
involvement was the referrals and notes that L.Z. had a history of domestic violence and alcohol
abuse. Yupit-Martinez testified that the allegations in the referrals formed the basis of her
investigation and that although she ruled out physical abuse, her disposition of the allegation of
neglectful supervision due to allegations of alcohol abuse and domestic violence was “reason to
believe.” Further, the record contains the trial court’s temporary order following adversary hearing,
15
which appointed the Department as temporary managing conservator and included the findings
required by section 262.201 of the family code.6
Viewing the evidence in the light most favorable to an affirmative finding under
section 161.001(1)(O), we conclude that there was legally sufficient evidence presented to allow a
reasonable factfinder to for a firm belief or conviction that J.Z. was removed from L.Z. for “abuse
or neglect.” See In re A.W.B., No. 14-11-00926-CV, 2012 Tex. App. LEXIS 2362, at *5–6 (Tex.
App. —Houston [14th Dist.] Mar. 27, 2012, no pet.) (mem. op.) (finding sufficient evidence of
removal for abuse or neglect where family plan showed case initiated because of referral alleging
physical abuse and trial court made findings pursuant to chapter 262 of family code); In re J.S.G.,
No. 14-08-00754-CV, 2009 Tex. App. LEXIS 3224, at *18–20 (Tex. App.—Houston [14th Dist.]
May 7, 2009, no pet.) (mem. op.) (evidence established removal for abuse or neglect where
department affidavit stated “concerns” including the parent’s criminal history and drug use
and trial court made requisite findings under chapter 262); In re A.C., No. 12-04-00264-CV,
2005 Tex. App. LEXIS 8137, at * 11–12 (Tex. App.—Tyler Sept. 30, 2005, no pet) (mem. op.)
(evidence established removal for neglect where department testified children were removed because
they were believed to be at risk based on report of alleged drug use and lack of appropriate housing
and trial court appointed department temporary managing conservator based, in part, on department
6
Section 262.201 requires that following the full adversary hearing, the trial court shall order
the return of the child unless it finds sufficient evidence that there was a danger to the physical health
or safety of the child caused by the person entitled to possession and for the child to remain in the
home is contrary to the welfare of the child; the urgent need for protection required the removal of
the child, and reasonable efforts were made to prevent the child’s removal; and reasonable efforts
have been made to enable the child to return home, but there is a substantial risk of continuing
danger if the child is returned. Tex. Fam. Code Ann. § 262.201(b)(1)–(3) (West Supp. 2011).
16
affidavit concluding there was “reason to believe” report alleging neglectful supervision and
physical neglect).
L.Z. contends that In re S.A.P. compels the opposite result. In that case, S.A.P. was
removed shortly after birth, from the hospital, and there was no evidence of abuse or neglect—or
concerns of abuse or neglect—specific to S.A.P. 169 S.W.3d at 689, 706. Rather, the caseworker
“unequivocally testified that S.A.P. was not removed for abuse or neglect by [the parents], that
S.A.P. was not neglected by [the parents], and that S.A.P. was removed only because of
the risk because of [the parents’] prior history” of abuse of their older children. Id. at 705–06.
In this case, there were allegations of neglectful supervision specific to J.Z. by L.Z.
that prompted the Department’s investigation and subsequent removal of J.Z. See In re J.S.G.,
2009 Tex. App. LEXIS 3224, at *20. Thus, we find In re S.A.P. distinguishable and L.Z.’s argument
that we must apply its holding to the facts of this case unpersuasive.
Substantial compliance with plan
L.Z. also argues that his parental rights should not have been terminated because he
was “really trying to complete the services” and “substantially completed many of the[] service plan
tasks.” L.Z. offers no authority for his contention that substantial completion can suffice under
section 161.001(1)(O), and we have found no authority to support it. To the contrary, as this Court
observed in Bennett v. Texas Department of Family & Protective Services, “Texas courts have held
that substantial compliance is not sufficient to avoid termination for failure to comply with a service
plan.” No. 03-07-00521-CV, 2008 Tex. App. LEXIS 2420, at *22 (Tex App. —Austin Apr. 3, 2008,
no pet.) (mem. op.) (citing In re T.T., 228 S.W.3d 312, 319 (Tex. App.—Houston [14th Dist.] 2007,
17
pet. denied) (“Research reveals that substantial completion or substantial compliance is not enough
to avoid a termination finding under this section.”)); 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.”); see also In re A.A.F.G.,
No. 04-09-00277-CV, 2009 Tex. App. LEXIS 9688, at *8 (Tex. App.—San Antonio Dec. 23, 2009,
no pet.) (mem. op.) (section 161.001(1)(O) does not quantify number of provisions of service plan
parent must fail to warrant termination or include provision for evaluating partial achievement).
L.Z. testified that he failed to complete aftercare following outpatient treatment,
cognitive therapy, and a batterers’ intervention program, refrain from criminal activity, and attend
three AA or NA meetings a week. In addition, the evidence consistently supported findings that he
did not provide stable and suitable housing, cooperate with the Department, or regularly visit with
J.Z. Thus, despite L.Z.’s completion of some of the plan’s goals, the evidence establishes that he
did not achieve much of what was required by the plan. Section 161.001(1)(O) “does [not] quantify
the degree of conduct that is deemed a failure as to a particular provision” in the service plan, In re
A.A.F.G., 2009 Tex. App. LEXIS 9688, at *8, nor does it “‘make a provision for excuses’ for a
parent’s failure to comply with the service plan,” In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland
2009, no pet.) (quoting In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet. denied)).
We therefore conclude that, viewed in the light most favorable to an affirmative finding under
section 161.001(1)(O), there was legally sufficient evidence to allow a reasonable factfinder to form
a firm belief or conviction that J.Z. failed to comply with the requirements of the family service plan
as required by section 161.001(1)(O).
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Credibility of S.W.
L.Z.’s third argument in support of his contention that the evidence does not support
termination under section 161.001(1)(O) is that “much of the testimony that tends to indicate that
the (O) grounds were met came from [S.W.]” and her testimony is “generally not believable” and
“tends to indicate that she could be, and probably is lying or exaggerating about . . . any issue
involving [L.Z.].” S.W. and L.Z. did offer conflicting testimony regarding some behaviors relevant
to L.Z.’s completion of the service plan tasks. However, the trial court is the sole judge of the
credibility of the witnesses and the weight to give their testimony; we must defer to the trial court’s
first-hand assessments of the credibility of the witnesses and conclude that the trial
court’s assessments could have informed its view of the testimony. City of Keller v. Wilson,
168 S.W.3d 802, 819 (Tex. 2005); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.
2000). “The trial court is in the best position to observe the demeanor and personalities of the
witnesses and can ‘feel’ the forces, powers, and influences that cannot be discerned by merely
reading the record.” Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.)
(citing Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ. App.—Dallas 1981, no writ)).
Furthermore, as we have already concluded, even without considering S.W.’s testimony, L.Z.’s own
testimony constituted legally sufficient evidence to support the trial court’s determination that he
failed to complete the service plan tasks. We overrule L.Z.’s first issue.
Best Interest of the Child
In his second issue, L.Z. contends that the evidence was factually insufficient to
support the trial court’s finding that termination of his parental rights is in J.Z.’s best interest. See
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Tex. Fam. Code Ann. § 161.001(2). 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). The supreme
court set out a number of factors for a trial court to consider in determining a child’s best interest in
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). Those factors include the (i) desires of the child,
(ii) emotional and physical needs of and danger to the child now and in the future, (iii) parental
abilities, (iv) plans for the child by the individual or agency seeking custody, (v) programs available
to assist the individual to promote the best interest of the child, (vi) stability of the home, (vii) acts
or omissions of the parent that may indicate that the existing parent-child relationship is not a proper
one, and (viii) any excuse for the acts or omissions of the parent. Id. at 371–72; see also Tex. Fam.
Code Ann. § 263.307 (West 2008) (stating that “prompt and permanent placement of the child in a
safe environment is presumed to be in the child’s best interest” and listing factors that court should
consider “in determining whether the child’s parents are willing and able to provide the child with
a safe environment”). This list of factors is not exhaustive, not all of them are present in every
case, and not all of them need to be proven to determine a child’s best interest. In re C.H.,
89 S.W.3d at 27; Holley, 544 S.W.2d at 372. Further, evidence presented to satisfy the
predicate statutory ground finding may also be probative of the child’s best interest. In re C.H.,
89 S.W.3d at 28; Pruitt v. Texas Dep’t of Family and Protective Servs., No. 03-10-00089-CV,
2010 Tex. App. LEXIS 10272, at *22–23 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.).
Most of the Holley factors are implicated in this case. Although J.Z. was too young
to articulate his desires, some courts have considered the quality and extent of the child’s
relationships with the prospective placements. See In re J.M. 156 S.W.3d 696, 706 (Tex.
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App.—Dallas 2005, no pet.) (considering evidence that children were bonded to foster family, were
happy in foster home, and enjoyed visitation with father in assessing young children’s desires);
In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied.) (considering
evidence that child was well-cared for by foster family, had bonded with them, and spent minimal
time with parent in assessing toddler’s desires). Here, the evidence showed that J.Z. has spent most
of his life with his foster parents, has bonded with them, considers them to be his parents, is happy,
and is doing well with the foster family. The evidence further shows that while L.Z. appears bonded
and appropriate with J.Z., he had missed a number of visits with J.Z.—approximately half recently.
The only evidence regarding L.Z.’s visitations with J.Z. was that L.Z. seemed appropriate with J.Z.
The record contains no evidence of J.Z.’s relationship with L.Z.’s mother, with whom L.Z. intends
to place J.Z. if he retains his parental rights, or with Sh.W., whom the record indicates the
Department had at one time considered for placement.
Regarding the remainder of the Holley factors, it is undisputed that the Department
initiated its investigation based on allegations of neglect and physical abuse and found reason to
believe the allegations of neglect. The evidence showed that L.Z. made efforts to comply with the
family service plan, but it was undisputed that he failed to complete a substantial number of required
tasks. It was also undisputed that, because of L.Z.’s history of domestic violence, drug and alcohol
abuse, and criminal activity and his recent relapse, he is not a safe parent for J.Z. and that, despite
his access to counseling programs through the Department, he cannot provide a stable home for J.Z.
and intends for his mother to care for him if he retains his parental rights. Lawrence, L.Z.’s therapist,
agreed that L.Z. was not a safe parent for J.Z., testifying that L.Z. successfully completed a protective
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parenting program but was not using the tools he learned. L.Z.’s pastor testified that he believes L.Z.
could be a safe parent with the proper guidance and support system but acknowledged that he has
no education in psychology or drug addiction or treatment. Dubin characterized L.Z. as a psychopath
who is conning, good at bonding with people with whom he needs to bond, and more interested in
winning the case than custody of J.Z. The evidence further showed that the foster family provides
a safe, stable, and caring environment and plans to nurture the needs and interests of J.Z. if allowed
to adopt him. L.Z.’s mother testified that if J.Z. were to live with her, she would work with the
foster family and allow L.Z. and S.W. access only if they were clean and sober. Although
photographs of L.Z.’s mother’s home were admitted into evidence, there was no evidence of her
parenting abilities, home stability, or plans for J.Z. other than as to visitation. The only evidence
as to Sh.W.’s abilities or plans was testimony that she had abused S.W. and displays
emotional behavior.
In light of the entire record, the trial court reasonably could have credited the
undisputed evidence and testimony of L.Z., the foster father, the Department’s investigator and
caseworker, and L.Z.’s therapist and psychologist, as well as the disputed testimony of S.W., and
could have reasonably formed a firm belief or conviction that termination of L.Z.’s parental rights
was in J.Z.’s best interest. See In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 23. L.Z.
contends that the trial court could not have had a firm conviction that termination was in J.Z.’s best
interest because the court expressed concerns regarding J.Z.’s continued contact with L.Z.’s mother
if he were adopted by the foster family. L.Z. cites no authority for this argument, and we do not find
it persuasive. The record shows that in terminating L.Z.’s parental rights, the trial court expressly
22
stated that it did not intend to inhibit post-termination contact with J.Z.’s extended family, in
particular with L.Z.’s mother. However, the trial court’s comments regarding the effects of
termination on J.Z.’s contact with L.Z.’s mother have no bearing on its determination that
termination of L.Z.’s parental rights was in the best interest of J.Z. We therefore conclude that there
was factually sufficient evidence to support the trial court’s best interest finding in favor of
termination. See In re H.R.M., 209 S.W.3d at 108; In re J.F.C., 96 S.W.3d at 266. We overrule
L.Z.’s second issue.
CONCLUSION
Having overruled L.Z.’s issues, we affirm the trial court’s order of termination.
__________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Henson and Goodwin
Affirmed
Filed: August 23, 2012
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