Affirmed and Memorandum Opinion filed November 20, 2018.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-18-00529-CV

            IN THE INTEREST OF S.J.N. AND R.J.N., CHILDREN

                     On Appeal from the 314th District Court
                              Harris County, Texas
                       Trial Court Cause No. 2017-03363J

                  MEMORANDUM                         OPINION
       This accelerated appeal arises from a final decree in a suit in which
termination of the parent-child relationship was at issue. See Tex. Fam. Code Ann.
§ 109.002(a-1) (West 2014 & Supp. 2018). The trial court terminated the parental
rights of J.B. (Mother) and appellant S.N. (Father) with respect to their children,
Sarah and Rob.1 The trial court also appointed the Texas Department of Family and
Protective Services (the Department) to be the children’s managing conservator.

       Only Father appeals. He challenges the sufficiency of the evidence to support


1
  We use pseudonyms or initials to refer to the children, parents, and other family members
involved in this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
termination. We conclude legally and factually sufficient evidence supports the trial
court’s findings that (1) Father failed to comply with his court-ordered family
service plan, and (2) termination of Father’s parental rights is in the children’s best
interest. Therefore, we affirm the trial court’s judgment.

                                      BACKGROUND

      A.     Removal
      The following facts come from the affidavit of Department investigative
caseworker Jonathan Beauford.

       The Department received two referrals on the same day in June 2017. The
first alleged Father physically abused Rob, then age 11, and negligently supervised
Sarah, then age 13. Father reportedly disciplined Rob inappropriately, including
forcing him to exercise excessively, sometimes to the point of vomiting. At least one
witness saw Father making Rob do push-ups for 40 minutes before the police
arrived. Rob screamed and cried from the pain. According to the report, Father also
required Sarah and Rob to collect garbage in the dark and mow the grass in the dark.
The second referral described a large bruise the size of a palm on the left side of
Rob’s face and alleged Father hit Rob in vital areas, namely the head and ribs. The
police arrested Father that day for injury to a child.

      Beauford interviewed Rob and Sarah later that day. Rob said Father began
drinking heavily about a year earlier. On various occasions when Father was drunk,
Rob said, he physically abused Rob and forced him to perform extreme exercise,
including 400 push-ups. Rob admitted Father slapped him hard on the face but said
the slap mark disappeared overnight. Sarah reported Father drank “all the time” and
confirmed he compelled Rob to exercise excessively. She said Father gets “easily
irritated and frustrated” with Rob.


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      Because nobody was available to take care of them, the Department took
emergency custody of the children. The Department filed this lawsuit the next day,
attaching Beauford’s affidavit to the original petition. Following a full adversary
hearing, the trial court made several findings, including:

            Sufficient evidence exists to satisfy a person of ordinary prudence and
             caution that there is a continuing danger to the children’s physical
             health or safety, and allowing the children to remain in Father’s care is
             contrary to their welfare; and

            The Department made reasonable efforts consistent with the children’s
             health and safety to prevent or eliminate the need to remove them from
             and to make it possible for them to return to Father’s care, but
             continuation in that home would be contrary to their welfare.
Based on those findings, the trial court ordered the children to be removed from
Father’s care and named the Department as their temporary managing conservator.

      B.     Family service plan
      Following a full adversary hearing, the trial court signed an order requiring
Father to comply with any family service plan by the Department. The service plan
would identify the goals he needed to achieve and tasks and services he needed to
complete before the children could be returned to his care.

      The service plan noted several areas of concern: Father lacks parenting skills
and denies any wrongdoing in the discipline of his children; Father’s emotional
instability seriously impairs his ability to care for and nurture the children; Father
has a history of physically abusing and neglecting his children; the home
environment is “stressful and unstable”; Father denies physically abusing or
neglecting his children; and due to his alcohol abuse, when Father is under the
influence of alcohol, he cannot protect his children and instead harms them. The
Department created goals for Father to alleviate those concerns, most of which


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centered around Father’s learning self-control, accepting responsibility for his
behavior, and changing his pattern of abuse and neglect.

      So he could accomplish those goals, the Department’s service plan for Father
required him to, among other things:

      1.     visit his children regularly;

      2.     attend all court hearings and permanency team meetings;

      3.     refrain from criminal activity;

      4.     obtain and maintain suitable employment and provide the caseworker
             with documentation verifying all sources of income;
      5.     obtain and maintain safe, stable housing for at least six consecutive
             months and provide the caseworker with a copy of the lease agreement
             or ownership documents;
      6.     complete parenting classes;
      7.     submit to random drug testing and test negative at all times;

      8.     complete a substance abuse assessment and follow the assessor’s
             recommendations, including participating in individual or group
             therapy; and
      9.     complete a psychosocial evaluation and follow the evaluator’s
             recommendations.
The trial court adopted the service plan as an order of the court on July 27, 2017.

      C.     Trial
      Trial was held on April 24, 2018. The Department presented testimony from
caseworker Tracy Ratcliff and the children’s guardian ad litem, Court Appointed
Special Advocate (CASA) Etta Pickett. The Department’s documentary evidence,
all of which was admitted without objection, included Beauford’s affidavit, Father’s
family service plan and the order adopting it as a court order, Father’s drug test


                                             4
results, Father’s criminal records, the Department’s final permanency report, and the
CASA report.

      Father attended trial personally and was represented by counsel. Neither he
nor the children’s attorney ad litem called witnesses or offered other evidence.

             1.    Evidence about Father

                   a.     History of abuse and neglect of the children
      Father was investigated in Las Vegas three times for abuse and neglect of
Sarah and Rob. The first investigation took place in 2007, when Sarah was three and
a half years old and Rob had just turned two. The report alleged Father physically
abused both children and indicated the children had bruises. The investigating
agency ruled it had reason to believe those allegations. In 2012 and 2013, Father was
accused of neglecting the children. Ratcliff testified the latter two reports alleged
Father had been drinking excessively. The 2013 allegations were ruled out; the
record does not reflect the disposition of the 2012 case.

      Father’s history with children’s protective services continued in Texas in
December 2016, when the Department received a referral alleging Father physically
abused Rob. According to the report, Father subjected Rob to “bizarre punishment”
due to Father’s belief Rob was masturbating. Father and an unrelated home member
allegedly tied Rob up with rope, and the unrelated home member allegedly punched
Rob in a vital body area. The Department found it had reason to believe those
allegations, but the case was closed anyway. In March 2017, Father was accused of
kicking Sarah while he forced her to do push-ups. The Department ruled out those
allegations and closed the case.

      Ratcliff testified about the June 2017 events giving rise to this case. Rob told
her Father slapped him on his face. Upon seeing Rob demonstrate the slap for


                                          5
Ratcliff, Sarah said Father slapped Rob harder than Rob was indicating. The children
told Ratcliff about Father’s continuing pattern of alcohol abuse. When he was
inebriated, they said, Father would force them to perform extreme exercise, but not
when he was sober. The children also said Father did not remember much of what
he did when he was drunk.

       The events that began this case also led to Father’s arrest that evening for
injury to a child, a third-degree felony. He remained in jail on that charge until early
October 2017, when he was released on bond. Father pleaded guilty to the charge.
In January 2018, the criminal court deferred an adjudication of guilt and placed him
on community supervision for two years. The terms of his community supervision
prohibited Father from having any contact with a minor, including Rob and Sarah,
for the two-year term without court permission.2

                      b.      Drug and alcohol use
       Father tested negative for all drugs and alcohol beginning after his release
from jail in October 2017. He missed one test in February 2018, but Ratcliff testified
his failure to appear was the result of her mistake about scheduling and should not
be attributed to Father.

                      c.      Service plan
       Nearly seven months elapsed between the time Father was released from jail
and the time of trial. During that time, Father underwent substance abuse and
psychosocial assessments. The recommendations from those assessments included
individual and group counseling for substance abuse, individual therapy for anger
management, and parenting classes.


2
  The criminal court made an exception for Father’s other biological daughter, a child not at issue
in this case, and allowed Father to interact with her by telephone, email, and other remote forms
of communication.
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      At the time of trial, Father was in “the beginning stages” of individual and
group counseling for substance abuse. He had just begun individual therapy for
anger management. He had not started his parenting classes.

      The record is largely devoid of information about Father’s housing,
employment, or future plans. According to the CASA report filed two weeks before
trial, Father was living at the Last Chance Recovery Center, a sober-living home.
The record contains no information about Father’s intended living arrangements
after he leaves Last Chance. Likewise, the record does not indicate whether Father
had a job.

             2.    Evidence about the children
      Sarah and Rob were placed in a children’s group home when they were
removed. The record contains little to no evidence about their conditions, needs, or
desires at the time of removal. Near the time of trial, each child was said to be
thriving and doing well socially and academically. Sarah was being successfully
treated for severe acne. The children were very bonded with one another.

      Ages 14 and 12, respectively, at the time of trial, both Sarah and Rob enjoyed
spending time with their “host family,” a family who had scheduled interaction with
them through the group home. One host family had expressed interest in adopting
the children. The Department was exploring that possibility as well as adoption by
the children’s stepmother, who lived in Las Vegas. Sarah and Rob both said they
love Father but want to be adopted into a stable family environment.

             3.    Trial court’s findings
      The trial court found Father engaged in the conduct described in subsection E
and failed to comply with the trial court’s order in accordance with subsection O of
section 161.001(b)(1) of the Family Code. The court additionally found termination


                                         7
of Father’s parental rights was in the children’s best interest. The trial court
appointed the Department to be the children’s managing conservator.

                                       ANALYSIS

I.      Burden of proof and standards of review
        Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980);
In re J.E.M.M., 532 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). However, the child’s emotional and physical interests must not be sacrificed
to preserve parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

        Parental rights can be terminated if clear and convincing evidence shows
(1) the parent committed an act described in section 161.001(b)(1) of the Family
Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001(b)(1), (2) (West Supp. 2018). Only one predicate finding under section
161.001(b)(1), along with the best-interest determination, is necessary to support
termination. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). “‘Clear and convincing
evidence’ means the measure or degree of proof that will produce in the mind of the
trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established.” Tex. Fam. Code Ann. § 101.007 (West 2014). This high burden reflects
the severity of termination.

        The heightened burden of proof results in heightened standards of review for
evidentiary sufficiency:

      Legal sufficiency. We consider all the evidence in the light most favorable to
       the finding to determine whether a reasonable fact finder could have formed
       a firm belief or conviction that its finding was true. We assume the fact finder
       resolved disputed facts in favor of its finding if a reasonable fact finder could
       do so, and we disregard all evidence a reasonable fact finder could disbelieve.
       In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

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       Factual sufficiency. We consider and weigh all the evidence, including
        disputed or conflicting evidence, to determine whether a reasonable fact finder
        could have formed a firm belief or conviction that its finding was true. We
        consider whether disputed evidence is such that a reasonable fact finder could
        not have resolved that dispute in favor of its finding. In re C.H., 89 S.W.3d
        17, 25 (Tex. 2002).

         The fact finder is the sole arbiter when assessing the credibility and demeanor
of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re H.R.M., 209 S.W.3d
105, 109 (Tex. 2006) (per curiam). We may not second-guess the fact finder’s
resolution of a factual dispute by relying on disputed evidence or evidence the fact
finder “could easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003).

II.      Predicate ground for termination: Failure to comply with court-ordered
         service plan (Family Code section 161.001(b)(1)(O))
         Father concedes the legal sufficiency but challenges the factual sufficiency of
the evidence to support the trial court’s finding regarding subsection O of section
161.001(b)(1) of the Family Code.

         Subsection O authorizes termination of the parent-child relationship if the trial
court finds, by clear and convincing evidence, that a parent has:

         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(b)(1)(O).

         Father concedes: (1) he failed to comply with a court order specifically
establishing what he must do for Sarah and Rob to be returned to him, (2) the
children were in the Department’s conservatorship for at least nine months, and

                                             9
(3) the children were removed under Family Code chapter 262 for abuse or neglect.
But, he contends a preponderance of the evidence demonstrates he was unable,
through no fault of his own, to complete the service plan despite making a good faith
effort. That contention is an invocation of the defense to subsection O, codified in
section 161.001(d). That section states:

      (d)    A court may not order termination under Subsection (b)(1)(O)
             based on the failure by the parent to comply with a specific
             provision of a court order if a parent proves by a preponderance
             of evidence that:
             (1)   the parent was unable to comply with specific provisions
                   of the court order; and
             (2)   the parent made a good faith effort to comply with the
                   order and the failure to comply with the order is not
                   attributable to any fault of the parent.

Tex. Fam. Code Ann. § 161.001(d) (West Supp. 2018).

      Section 161.001(d) applies only to suits filed on or after its effective date of
September 1, 2017:

      SECTION 73. . . . (c) Except as otherwise provided by this section, the
      changes in law made by this Act apply only to a suit affecting the
      parent-child relationship filed on or after the effective date of this Act.
      A suit affecting the parent-child relationship filed before the effective
      date of this Act is subject to the law in effect at the time the suit was
      filed, and the former law is continued in effect for that purpose.
      ...

      SECTION 79. Except as otherwise provided by this Act, this Act takes
      effect September 1, 2017.

Act of May 26, 2017, 85th Leg., R.S., ch. 317 §§ 73(c), 79, 2017 Tex. Sess. Law
Serv. 615, 618, 640–41 (to be codified at Tex. Fam. Code § 161.001(b)(1)(d)). The
Department filed its original petition for termination on June 16, 2017. Accordingly,

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the 161.001(d) defense to subsection O does not apply to this case. See In re A.W.,
No. 02-18-00147-CV, 2018 WL 5074770, at *10 (Tex. App.—Fort Worth Oct. 18,
2018, no pet. h.) (mem. op.) (concluding section 161.001(d) defense did not apply
to suit filed in October 2016).

       Even if the defense applied, we would conclude Father did not satisfy his
burden of proof. Section 161.001(d) places the burden on the parent to prove by a
preponderance of the evidence that he was unable to comply with the court-ordered
service plan, he made a good faith effort to comply with the order, and his failure to
comply is not attributable to any fault of his own. See Tex. Fam. Code Ann.
§ 161.001(d). Father offered no evidence at trial. He did not explain why he was
unable to complete the required services in the nearly seven months that elapsed
between the day he was released from jail and the day of trial.

       In light of the entire record, we conclude the disputed evidence the trial court
could not reasonably have credited in favor of its finding under subsection O is not
so significant that the court could not reasonably have formed a firm belief or
conviction that Father failed to comply with his service plan. Accordingly, the
evidence is legally and factually sufficient to support the trial court’s finding under
subsection O. Because we conclude the evidence is sufficient to support that finding,
we do not review the finding regarding the other predicate ground for termination,
subsection E. See A.V., 113 S.W.3d at 362.

       We overrule Father’s first and second issues.

III.   Best interest
       Father’s third issue challenges the legal and factual sufficiency of the evidence
to support the trial court’s finding that termination of his parental rights is in the
children’s best interest.


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      A.     Legal standards
      Termination must be in the child’s best interest. Tex. Fam. Code Ann.
§ 161.001(b)(2). Texas courts presume two conditions to be in a child’s best interest:
(1) prompt, permanent placement in a safe environment, id. § 263.307(a) (West 2014
& Supp. 2018); and (2) remaining with the child’s natural parent. In re U.P., 105
S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

      Courts may consider these non-exclusive factors, known as the Holley factors,
in its best-interest analysis: the desires of the child; the physical and emotional needs
of the child now and in the future; the physical and emotional danger to the child
now and in the future; the parental abilities of the persons seeking custody; the
programs available to assist those persons seeking custody in promoting the best
interest of the child; the plans for the child by the individuals or agency seeking
custody; the stability of the home or proposed placement; acts or omissions of the
parent that may indicate the existing parent-child relationship is not appropriate; and
any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976). This list of factors is not exhaustive, and evidence is not
required on all the factors to support a finding that termination is in the child’s best
interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012,
no pet.). The Family Code also identifies factors the court may consider in evaluating
a parent’s willingness and ability to provide the child with a safe environment. Tex.
Fam. Code Ann. § 263.307(b). Finally, evidence supporting the statutory predicate
of termination is relevant to the best-interest analysis. C.H., 89 S.W.3d at 27.




                                           12
      B.     Application

             1.     The children
      Desires. According to the caseworker and the CASA, Sarah and Rob both love
Father. They want to have continued communication with him, but they also want
to be adopted into a family environment.

      Needs. The group home was meeting all of Sarah’s and Rob’s needs. The
record does not suggest either child has any special needs. Both children were
performing well academically and socially.

      Stability of proposed placement. At the time of trial, the Department did not
have a new placement ready for the children. The Department was going to explore
adoption by one of the host families from the group home or by the children’s
stepmother. The lack of evidence about definitive plans for permanent placement
and adoption cannot be the dispositive factor; otherwise, determinations regarding
best interest would regularly be subject to reversal on the sole ground that an
adoptive family has yet to be located. C.H., 89 S.W.3d at 28. “Instead, the inquiry is
whether, on the entire record, a fact finder could reasonably form a firm conviction
or belief that termination of the parent’s rights would be in the child’s best interest—
even if the agency is unable to identify with precision the child’s future home
environment.” Id.

             2.     Father
      Predicate grounds under Family Code section 161.001(b)(1). Evidence
supporting termination under the grounds listed in section 161.001(b)(1) can be
considered in support of a finding that termination is in the children’s best interest.
See id. at 27. Accordingly, the evidence that Father failed to comply with his court-
ordered service plan, discussed above, is relevant to the best-interest analysis.


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      Endangerment of the children. A parent’s abusive or violent conduct can
produce a home environment that endangers a child’s well-being. In re J.I.T.P., 99
S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) “Domestic
violence, want of self-control, and propensity for violence may be considered as
evidence of endangerment.” Id.; accord In re S.R., 452 S.W.3d 351, 361 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied) (quoting J.I.T.P., 99 S.W.3d at 945).
Further, a parent’s criminal conduct, convictions, or imprisonment is relevant to the
question of whether the parent engaged in a course of conduct that endangered the
well-being of the child. S.R., 452 S.W.3d at 360–61; A.S. v. Tex. Dep’t of Family &
Protective Servs., 394 S.W.3d 703, 712–13 (Tex. App.—El Paso 2012, no pet.).
Imprisonment alone is not an endangering course of conduct but is a fact properly
considered on the endangerment issue. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533–34 (Tex. 1987). Routinely subjecting a child to the probability he
will be left alone because his parent is in jail endangers the child’s physical and
emotional well-being. In re S.M., 389 S.W.3d 483, 492 (Tex. App.—El Paso 2012,
no pet.). Father concedes he endangered the children by physically abusing or
mistreating them. The same acts also constituted a crime to which he pleaded guilty.
Father’s criminal activity also endangered the children.

      A parent’s continuing substance abuse can qualify as a voluntary, deliberate,
and conscious course of conduct endangering the child’s well-being. See In re
J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re L.G.R., 498 S.W.3d 195, 204 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied). By using drugs, the parent exposes
the child to the possibility that the parent may be impaired or imprisoned and,
therefore, unable to take care of the child. See Walker v. Tex. Dep’t of Family &
Protective Servs., 312 S.W.3d 608, 617–18 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied).


                                         14
      The record suggests a pattern of intermittent but extreme alcohol abuse by
Father. The children disclosed Father’s history of excessive drinking. The record
also indicates Father tested negative for alcohol throughout the pendency of this
case. The caseworker testified she believes Father to be a good parent except for the
alcohol abuse. Father points to his progress toward sobriety as evidence undermining
the trial court’s best-interest finding. Abuse of drugs is “hard to escape,” and the fact
finder is “not required to ignore a long history of dependency . . . merely because it
abates as trial approaches.” In re M.G.D., 108 S.W.3d 508, 513–14 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied). The trial court may reasonably decide a
parent’s changes before trial are too late to impact the best-interest decision. See In
re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied). Although
a reasonable fact finder could look at Father’s progress and decide it justified the
risk of keeping him as a parent, we cannot say the trial court acted unreasonably in
finding the children’s best interest lay elsewhere. M.G.D., 108 S.W.3d at 514. It is
not our role to reweigh the evidence on appeal, and we may not substitute our
judgment of the children’s best interest for the considered judgment of the fact
finder. See id. at 531 (Frost, J., concurring in judgment).

      Willingness and ability to parent. Although he had not completed the services
required by his service plan, including counseling for alcohol abuse and anger
management, the caseworker testified Father was cooperative and trying to work his
services. Still, both the caseworker and the CASA testified Father was not ready or
able at that time to provide a stable home for Sarah and Rob.

      Acts or omissions and any excuses for them. Father notes he was incarcerated
for more than three months at the beginning of this case and, therefore, could not
work on his service plan during that period. He offers no explanation, however, for
his failure even to begin his parenting classes once released from jail.

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                 3.   Conclusion on best interest
       Considering all the evidence in the light most favorable to the best-interest
finding, we conclude the trial court reasonably could have formed a firm belief or
conviction that termination of Father’s parental rights was in the children’s best
interest. See J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d
at 25. Further, in light of the entire record, we conclude the disputed evidence the
trial court could not reasonably have credited in favor of its best-interest finding is
not so significant that the court could not reasonably have formed a firm belief or
conviction that termination of Father’s rights was in the children’s best interest.
Accordingly, the evidence is legally and factually sufficient to support the trial
court’s finding that termination of Father’s parental rights is in Sarah’s and Rob’s
best interest.

       We overrule Father’s third issue.

                                    CONCLUSION
       We affirm the trial court’s judgment.




                                        /s/     Ken Wise
                                                Justice

Panel consists of Justices Donovan, Wise, and Jewell.




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