                                  NO. 07-11-00349-CV

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                  FEBRUARY 29, 2012


                   IN THE INTEREST OF Y.G. AND Z.G., CHILDREN


             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

            NO. 78,668-E; HONORABLE DOUGLAS WOODBURN, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION


       Appellant, Ivan G., appeals the judgment of the trial court terminating his parental

rights to the children, Y.G. and Z.G.1 For the reasons stated below, we will affirm the

judgment of the trial court.


                                       Background


       On February 10, 2010, the Department of Family and Protective Services

received an intake alleging physical neglect of Y.G. and Z.G. The intake was based on

an observation that the children were dirty and covered with bug bites.               John

       1
         Pursuant to Texas Rule of Appellate Procedure 9.8(b), appellant will be referred
to as “Ivan” and the children will be referenced by their initials. The children’s mother, a
nonparty to this appeal, will be referred to as “Keshia.”
Schaumberg was assigned to investigate the case. Schaumberg was able to locate

Ivan at the city jail where he was incarcerated for traffic tickets. During an interview with

Schaumberg, Ivan admitted that he did not have a steady residence, that he smoked

marijuana, and that he had been required to register as a sex offender when he was a

juvenile but that he no longer had to register.


       Because of a concern for the welfare of the children, the Department filed a

petition for orders in aid of investigation of a report of child abuse. On February 24, the

trial court issued orders which, inter alia, ordered Ivan, Keshia, and the children to

submit to a drug screen. Because Ivan and Keshia were uncooperative in allowing the

children to be drug tested, the Department removed the children on March 11. Upon

their removal, the children were drug tested. Y.G.’s drug test was negative for all illegal

drugs, while Z.G. tested positive for both cocaine and marijuana. On March 18, Ivan

and Keshia submitted to drug tests. Both tested positive for marijuana.


       The Department developed a service plan to allow Ivan to obtain the return of the

children. The requirements of the service plan were incorporated into the trial court’s

Temporary Order Following Adversary Hearing.          Additionally, by this order, the trial

court independently ordered Ivan to submit to drug tests when requested, participate in

a drug assessment, participate in counseling, participate in a psychological evaluation,

and participate in parenting classes. The service plan required Ivan to maintain stable

housing and to notify the Department if he moved, and also notified Ivan that a failure to

take a random drug test on the date requested would be considered a positive test.




                                             2
       Because Ivan failed to comply with the requirements of the service plan and the

trial court’s order, the case proceeded to trial on August 8, 2011. While evidence was

presented during the trial that Ivan had initiated many of the services required under the

service plan and the trial court’s order, he did not really begin making progress toward

accomplishing these requirements until the last few months before trial. By the time of

trial, Ivan had not completed the psychological evaluation, ACADA drug treatment

program, or counseling required by the service plan and order. In addition, Ivan had

only taken two of eight requested random drug tests. Finally, over the year and a half

that the Department was involved in this case before trial, Ivan had six different

addresses and failed to notify the Department of any of these new addresses. After

hearing the evidence, the trial court issued an order terminating Ivan’s parental rights to

Y.G. and Z.G. based on findings that Ivan had violated Texas Family Code section

161.001(1)(D),(E), (I), and (O), and that termination is in the children’s best interest.

See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2011).2              It is from this order of

termination that Ivan appeals.


       Ivan presents six issues by his appeal. The first four issues challenge the legal

and factual sufficiency of the evidence supporting the trial court’s findings that Ivan

violated section 161.001(1)(D), (E), (I), and (O). By his fifth issue, Ivan challenges the

trial court’s findings of fact and conclusions of law as lacking sufficient specificity since

the trial court failed to identify the specific actions by which Ivan violated section

161.001(1). Finally, by his sixth issue, Ivan challenges the legal and factual sufficiency


       2
         Further reference to the Texas Family Code will be by reference to “section
___” or “§ ___.”
                                             3
of the trial court’s determination that termination of Ivan’s parental rights is in the

children’s best interest.


                            Standard of Review in Termination Cases


       The natural right existing between parents and their children is of constitutional

dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,

455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A decree terminating

this natural right is complete, final, irrevocable, and divests for all time that natural right

as well as all legal rights, privileges, duties, and powers between the parent and child

except for the child's right to inherit.    Holick, 685 S.W.2d at 20.       As such, we are

required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846

(Tex. 1980). However, parental rights are not absolute, and the emotional and physical

interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89

S.W.3d 17, 26 (Tex. 2002).


       Due process requires the application of the clear and convincing standard of

proof in cases involving involuntary termination of parental rights.         In re J.F.C., 96

S.W.3d 256, 263 (Tex. 2002). “‘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.” § 101.007 (West 2008).

This standard, which focuses on whether a reasonable jury could form a firm belief or

conviction, retains the deference a reviewing court must have for the factfinder’s role. In

re C.H., 89 S.W.3d at 26.



                                              4
       The law in Texas is that a court may order termination of parental rights if the

petitioner establishes one or more acts or omissions enumerated under subsection (1)

of section 161.001, and that termination of the parent-child relationship is in the best

interest of the child. § 161.001. Though evidence may be relevant to both elements,

each element must be proven, and proof of one does not relieve the burden of proving

the other. See In re C.H., 89 S.W.3d at 28; Holley v. Adams, 544 S.W.2d 367, 370

(Tex. 1976). While both a statutory violation and that termination is in the best interest

of the child must be proven, only one statutory ground is required to terminate parental

rights under section 161.001. In re N.R., 101 S.W.3d 771, 775 (Tex.App.—Texarkana

2003, no pet.) (citing In re S.F., 32 S.W.3d 318, 320 (Tex.App.--San Antonio 2000, no

pet.)). Therefore, we will affirm the termination order if there is legally and factually

sufficient evidence of any statutory violation and that termination of parental rights

would be in the best interest of the child. See id.


       In reviewing the legal sufficiency of the evidence supporting an order terminating

parental rights, 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 as to the truth of the allegations sought to be established. See § 101.007; 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 court conducting a legal sufficiency review, looking at the

evidence in the light most favorable to the judgment means that a reviewing court must

assume that the factfinder resolved disputed facts in favor of its finding if a reasonable

factfinder could do so.”    In re J.F.C., 96 S.W.3d at 266.     In other words, we will


                                             5
disregard all evidence that a reasonable factfinder could have disbelieved or found to

have been incredible. Id.


       The standard for reviewing the factual sufficiency of termination findings is

“whether the evidence is such that a factfinder could reasonably form a firm belief or

conviction about the truth of the [Department's] allegations.” In re C.H., 89 S.W.3d at

25.   In conducting this review, we are directed to consider whether the disputed

evidence is such that a reasonable factfinder could not have resolved the disputed

evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “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.” Id.


                                  The Trial Court’s Findings


       In addition to finding that termination of Ivan’s parental rights to Y.G. and Z.G. is

in the children’s best interest, the trial court also found that Ivan:


       (1) Knowingly placed or knowingly allowed the children to remain in
           conditions or surroundings which endanger the physical or emotional
           well-being of the children;

       (2) Engaged in conduct or knowingly placed the children with persons who
           engaged in conduct which endangers the physical or emotional well-
           being of the children;

       (3) Contumaciously refused to submit to a reasonable and lawful order of
           a court under Subchapter D, Chapter 261, Texas Family Code; and

       (4) Failed to comply with the provisions of a court order that specifically
           established the actions necessary for the father to obtain the return of
           the children who have been in the permanent or temporary managing
           conservatorship of the Department for not less than nine months as a
                                               6
           result of the children’s removal from the parent under Chapter 262 for
           the abuse or neglect of the children.
See § 161.001(1)(D), (E), (I), (O), (2).


                                   Section 161.001(1)(O)


       Section 161.001(1)(O) supports termination of parental rights when a parent fails

to comply with the provisions of a court order that specifically established the actions

necessary for the parent to obtain return of the child who has been in the permanent or

temporary managing conservatorship of the Department for at least nine months as a

result of the child’s removal for abuse or neglect. § 161.001(1)(O). Ivan does not

dispute that Y.G. and Z.G. were removed from his care because of abuse or neglect, or

that the Department was managing conservator of the children for the requisite nine-

month period. Ivan also admits that he did not complete the services that were required

under the service plan and the trial court’s order.3 Rather, Ivan contends that he “either

initiated, participated in, and/or completed all services” required by the service plan and

court order, or that he should be excused from failing to comply because of intervening

causes that prevented him from completing the services.


       The trial court’s Temporary Order Following Adversary Hearing specifically

required Ivan to take certain actions to obtain the return of his children, including

counseling, psychological and/or psychological evaluation and treatment, parenting

classes, drug assessment, random drug testing, and compliance with the Department’s


       3
        The Department’s service plan was incorporated into the trial court’s Temporary
Order Following Adversary Hearing and, thus, constitutes a court order that specifically
establishes the actions necessary for Ivan to obtain return of Y.G. and Z.G. See §
161.001(1)(O).
                                            7
service plan. The service plan required Ivan to, inter alia, maintain a drug-free lifestyle,

maintain stable housing and employment, and notify the Department of any change of

address within five days of the change. The service plan also specifically designated

Kaye Renshaw as the counselor and Dr. Kleinpeter as the psychologist that Ivan was to

work with under the trial court’s order.


       In his brief, Ivan concedes that he did not comply with all of these requirements.

While Ivan did complete parenting classes, he admits that he changed housing on six

different occasions throughout the pendency of this case, had not completed drug

treatment through ACADA, had completed only three of eight counseling sessions with

Renshaw, and had not been treated psychologically. Ivan contends that these failures

to comply with the trial court’s order were excused due to circumstances beyond his

control or that he substantially complied with the service requirements.


       Ivan contends that his having six different housing arrangements during the one

and a half year pendency of this suit cannot be considered inappropriate stability

because the Department moved the children on six occasions of their own during the

same period. Clearly, however, Ivan’s argument is comparing apples to oranges. The

service plan required Ivan to maintain stable housing, which he did not do. Notably,

Ivan does not attempt to explain why he had so many different housing arrangements

over such a short period of time.4 Further, the Department’s case worker testified that

Ivan failed to notify the Department of any of these changes of address.


       4
         By contrast, the Department provided evidence regarding why it was necessary
for the Department to change the children’s placement.

                                             8
       Ivan contends that he participated in a drug abuse assessment through ACADA,

and that the assessment was all that was ordered by the trial court. While the trial

court’s order specifically ordered Ivan to have a drug assessment performed, the order

did incorporate the Department’s service plan.       The service plan required Ivan to

complete an ACADA assessment and to “follow any and all recommendations made by

the assessment.”      By his testimony, Ivan admitted that he had not completed his

program with ACADA. As such, Ivan did not comply with the service plan that was

incorporated into the trial court’s order.


       As to the counseling requirement, Ivan contends that he initiated and completed

three counseling sessions before the counselor terminated further services.          Ivan

explained that, due to transportation problems,5 he arrived at his counseling sessions

late, so Renshaw terminated further counseling services. However, the Department’s

case worker testified that Renshaw would not have terminated further counseling with

Ivan unless he failed to attend or was significantly late to two scheduled counseling

sessions. The case worker testified that Ivan did not attend any counseling sessions

with Renshaw and that it was his complete failure to participate in counseling that led to

Renshaw’s termination of counseling. Regardless, nothing in the record suggests that

Ivan contacted the Department in an effort to obtain a referral to counseling with another

counselor.


       Ivan contends that he initiated and participated in his psychological evaluation

with Dr. Kleinpeter, but that he was prevented from completing these services due to

       5
         Evidence was presented that the Department offered to provide Ivan
transportation, but that he refused such offer.
                                             9
the death of Dr. Kleinpeter. Following Dr. Kleinpeter’s death, Ivan acknowledged that

the Department referred him to a Dr. Basham for evaluation and treatment. However,

Ivan failed to schedule or attend any sessions with Dr. Basham.           On appeal, Ivan

contends that he is excused from the requirement that he see Dr. Basham because the

trial court’s order did not require Ivan to consult with Dr. Basham. However, the trial

court’s order requires Ivan to submit to an evaluation and treatment with “a licensed

psychologist and/or psychiatrist.”     The evidence establishes that the Department

selected Dr. Basham to be this licensed psychologist and/or psychiatrist after the death

of Dr. Kleinpeter, and that Ivan was aware of such selection but that he failed to comply

with the trial court’s order.


       Ivan appears to contend that his initiation of and participation in required services

is evidence of substantial compliance with the service plan and court order, and that

such action is enough to preclude the trial court from finding that Ivan violated section

161.001(1)(O). However, substantial compliance with the provisions of a court order is

not sufficient to avoid a finding under section 161.001(1)(O). In re D.S.C. V, No. 07-11-

0287-CV, 2011 Tex.App. LEXIS 9551, at *5 (Tex.App.—Amarillo Dec. 6, 2011, no pet.)

(mem. op.); In re C.M.C., 273 S.W.3d 862, 875 (Tex.App.—Houston [14th Dist.] 2008,

no pet.) (op. on reh’g); In re T.T., 228 S.W.3d 312, 319 (Tex.App.—Houston [14th Dist.]

2007, pet. denied).


       In addition, Ivan contends that his lack of transportation and the death of Dr.

Kleinpeter excuse certain of his failures to comply with the trial court’s order. However,

we find these excuses to be insufficient to justify Ivan’s failure to comply with the

                                            10
requirements of the trial court’s order. See In re D.S.C. V, 2011 Tex.App. LEXIS 9551,

at *5 (“The excuses offered by him are just that and do not prevent a finding that he did

not comply with the plan.”); In re C.M.C., 273 S.W.3d at 874-75 (section 161.001(1)(O)

does not make provision for excuses); In re T.N.F., 205 S.W.3d 625, 631 (Tex.App.—

Waco 2006, pet. denied) (same); Wilson v. State, 116 S.W.3d 923, 929 (Tex.App.—

Dallas 2003, no pet.) (excuse does not create a fact issue as to compliance). We find

Ivan’s excuses especially ineffectual considering the uncontroverted evidence that the

Department offered Ivan transportation, which he refused, and, following the death of

Dr. Kleinpeter, the Department informed Ivan that he could comply with the psychologist

or psychiatrist requirement by scheduling an appointment with Dr. Basham.


      However, beyond Ivan’s claims of substantial compliance and his excuses for his

failure to comply with the trial court’s order, Ivan provides no excuse or claim of

substantial compliance regarding his failure to comply with the requirements that he

maintain stable housing and that he submit himself to random drug screens when

requested by the Department. As addressed above, Ivan had at least six different

housing arrangements during the year-and-a-half pendency of this case, even though

the service plan required him to maintain stable housing. Additionally, both the service

plan and the trial court’s order required Ivan to submit to drug screens when requested

by the Department. However, the evidence is undisputed that Ivan refused six of eight

random drug screens requested by the Department.


      Viewing all of the evidence in the light most favorable to the trial court’s finding

under section 161.001(1)(O), we conclude that a reasonable trier of fact could have

                                           11
formed a firm belief or conviction that Ivan failed to comply with the provisions of a court

order that specifically established the actions necessary for him to obtain return of the

children. Further, the disputed evidence that a reasonable factfinder could not have

credited in favor of the finding is not so significant that a factfinder could not reasonably

have formed a firm belief or conviction that Ivan failed to comply with the provisions of

the trial court’s order. Consequently, we overrule Ivan’s fourth issue.


       As only one statutory ground is required to terminate parental rights under

section 161.001, see In re N.R., 101 S.W.3d at 775, we need not address Ivan’s first,

second, or third issues. See TEX. R. APP. P. 47.1.


                               Best Interest of the Children


       However, even after finding the evidence sufficient to support a finding under

section 161.001(1), we must still address Ivan’s sixth issue which challenges the

sufficiency of the evidence to support the trial court’s determination that termination of

the parent-child relationship between Ivan and the children is in the children’s best

interest. See § 161.001(2).


       There is a strong presumption that the best interest of a child is served by

keeping the child with its natural parent, and the Department bears the burden to rebut

that presumption. In re C.M.C., 273 S.W.3d at 876; In re S.M.L., 171 S.W.3d 472, 480

(Tex.App.—Houston [14th Dist.] 2005, no pet.). In deciding what is in a child’s best

interest, we will consider numerous factors, including (1) the desires of the child; (2) the

emotional and physical needs of the child now and in the future; (3) the emotional and

physical danger to the child now and in the future; (4) the parental abilities of the
                                             12
individuals seeking custody; (5) the programs available to assist these individuals; (6)

the plans for the child by these individuals; (7) the stability of the home; (8) the acts or

omissions of the parent which may indicate that the existing parent-child relationship is

not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley,

544 S.W.2d at 371-72. It is not necessary that each factor favor termination, In re

P.E.W., 105 S.W.3d 771, 780 (Tex.App.—Amarillo 2003, no pet.), and the list is not

exclusive. In re C.J.F., 134 S.W.3d 343, 354 (Tex.App.—Amarillo 2003, pet. denied).

To support the termination, there must be evidence from which a factfinder could

reasonably form a firm conviction or belief that the termination was in the child’s best

interest. In re D.S.A. 113 S.W.3d 567, 574 (Tex.App.—Amarillo 2003, no pet.).


       The need for permanence is a compelling consideration in determining a child's

present and future physical and emotional needs. In re T.D.C., 91 S.W.3d 865, 873

(Tex.App.--Fort Worth 2002, pet. denied); see In re S.H.A., 728 S.W.2d 73, 92

(Tex.App.--Dallas 1987, writ ref'd n.r.e.). In the present case, Ivan’s actions led to the

Department removing the children. Further, since the time of the removal, Ivan has not

taken actions consistent with being able to provide the children with the sort of stable

and healthy environment that would suggest that the Department would not likely need

to remain involved in the children’s lives. Ivan has not maintained stable housing or

employment, he has not availed himself of services offered through the Department,

and he continues to use drugs.6         Drug use during the pendency of a termination


       6
          While Ivan submitted to the final drug screen before trial and tested negative for
all illegal drugs, he tested positive for marijuana on his first test and then failed to submit
to six drug screens requested by the Department. Ivan’s failure to submit to these drug
screens are in direct contravention of the trial court’s order and, under the express
                                              13
proceeding is evidence of an inability to provide a stable environment for a child and for

the child’s emotional and physical needs. In re F.A.R., No. 11-04-00014-CV, 2005

Tex.App. LEXIS 234, at *11-12 (Tex.App.--Eastland Jan. 13, 2005, no pet.) (mem. op.).

For these reasons, we conclude that the evidence on the factor of the emotional and

physical needs of the children weighs in favor of termination of Ivan’s parental rights.


       Further, Ivan’s failure to avail himself of the services offered through the

Department during most of the time that this case was pending suggests that Ivan

would not avail himself of programs available to assist him in caring for the children.

Even were we to conclude that Ivan would avail himself of programs, no evidence was

offered of any programs that are available to Ivan. The evidence regarding programs

available to Ivan weighs in favor of termination of Ivan’s parental rights.


       Other than pledging to support his children with his social security disability

benefits and to enlist the help of family members to help him provide a safe environment

for the children, Ivan presented no concrete plans for the children. By contrast, the

Department has placed the children in a foster home in which the children have bonded

well with the foster mother. Further, the foster home in which the children have been

placed is open to adoption if the parental rights of Ivan and Keshia are terminated.




terms of the service plan, constitute positive results. As such, the evidence supports a
determination that Ivan tested positive on the first seven drug screens, and only tested
negative on the final drug screen before trial. Evidence of a recent change in behavior
should be determinative only when it is reasonable to conclude that rehabilitation, once
begun, will surely continue. In re M.G.D., 108 S.W.3d 508, 514 (Tex.App.—Houston
[14th Dist.] 2003, pet. denied). Considering Ivan’s reluctance to avail himself of the
services offered to him until the final months before trial, it is not reasonable to conclude
that Ivan’s drug rehabilitation will surely continue.
                                             14
Consequently, the evidence regarding the parties’ plans for the children weighs slightly

in favor of termination.


       Viewing all of the evidence in the light most favorable to the trial court’s best

interest finding, we conclude that the evidence is such as to allow a reasonable trier of

fact to form a firm belief or conviction that the termination of Ivan’s parental rights to

Y.G. and Z.G. is in the children’s best interest. Likewise, we conclude that the disputed

evidence that a reasonable factfinder could not have credited in favor of the finding is

not so significant that a factfinder could not reasonably have formed a firm belief or

conviction that it is in the children’s best interest to terminate Ivan’s parental rights.

Consequently, we overrule Ivan’s sixth issue.


                           Findings of Fact and Conclusions of Law


       Finally, Ivan’s fifth issue contends that the trial court’s findings of fact and

conclusions of law are insufficient because they do not specifically identify any action

taken by Ivan that violated section 161.001(1). Rather, according to Ivan, these findings

of fact and conclusions of law attempt to justify termination solely on the basis of the

children’s best interest. Because termination requires a finding that the parent violated

at least one of the section 161.001(1) subsections and that termination is in the best

interest of the children, see In re A.V., 113 S.W.3d 355, 362 (Tex. 2003), Ivan contends

that the trial court’s findings of fact and conclusions of law are insufficient to support

termination of his parental rights.


       However, Ivan’s dissatisfaction with the findings and conclusions filed by the trial

court could have been remedied had he filed a request for additional findings and
                                             15
conclusions. See TEX. R. CIV. P. 298. Because Ivan failed to avail himself of this

remedy and bring this defect to the attention of the trial court, he has waived his ability

to complain of the trial court’s findings of fact and conclusions of law on appeal. See In

re Q.W.J., No. 07-10-0075-CV, 2011 Tex.App. LEXIS 6635, at *9-10 (Tex.App.—

Amarillo Aug. 18, 2011, no pet.); Hill v. Hill, 971 S.W.2d 153, 157 (Tex.App.—Amarillo

1998, no pet.). As such, we overrule Ivan’s fifth issue.


                                       Conclusion


        Having overruled each of Ivan’s appellate issues, we affirm the judgment of the

trial court.



                                                           Mackey K. Hancock
                                                                Justice




                                            16
