Opinion issued December 8, 2016




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-16-00295-CV
                            ———————————
                                   IN RE M.F.D.



                    On Appeal from the 314th District Court
                             Harris County, Texas
                       Trial Court Case No. 2015-14381


                          MEMORANDUM OPINION

      Father appealed an order terminating Father’s parental rights to M.F.D., a

minor child. After this Court issued an opinion affirming the trial court’s order,

Father filed a motion for rehearing. The panel denies the motion for rehearing,

withdraws its September 22, 2016 opinion and judgment, and issues this opinion

and judgment affirming the trial court’s termination order in its place.
                                 BACKGROUND

      On March 12, 2015, the Department of Family and Protective Services (the

Department), filed an Original Petition for Protection of a Child for

Conservatorship, and for Termination in Suit Affecting the Parent-Child

Relationship. Appellant-Father was identified as the alleged father in the original

petition, and was confirmed as the biological father through DNA testing on

August 19, 2015.

      The affidavit in support of removal indicated that, on March 8, 2015, Mother

had abandoned M.F.D., a two-month-old baby, with someone Mother had met the

previous night. She was supposed to return for the baby after one or two hours; the

people with whom she left the baby called the police when Mother had not

returned in 24 hours. Mother had a history of abandoning another child in 2010,

and of prostitution, drug abuse, and a medical diagnosis of bipolar disorder.

      Police were unable to locate Mother, and Maternal Grandmother said she

could not take care of the child, as she was already caring for two of Mother’s

other children. Father stated he could not care for M.F.D., and initially told

officers that he did not have any relatives that could care for her, so she was

brought into the Department’s care.




                                         2
      Following a bench trial, the court terminated Mother’s and Father’s parental

rights on March 21, 2016. As for Father, the only subject of this appeal, the

court’s order specified the following grounds:

      8.    Termination of [Father’s] Parental Rights
            8.1.     The Court finds by clear and convincing evidence that
                     termination of the parent child relationship, if any exists
                     or could exist, between [Father], and [M.F.D.], a child
                     the subject of this suit, is in the best interest of the child.
            ....
            8.3.     Further, the Court finds by clear and convincing evidence
                     that [Father] has:
                   8.3.1. engaged in conduct or knowingly placed the child
                          with persons who engaged in conduct which
                          endangers the physical or emotional well-being of the
                          child, pursuant to §161.001[b](1)(E), Texas Family
                          Code;
                   8.3.2. 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 child who child
                          (sic) 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,
                          pursuant to §161.001[b](l)(O), Texas Family Code[.]
      Father timely brought this appeal.

                                    ISSUES ON APPEAL

      Father advances the following four issues:

      (1)   “Did the trial court abuse its discretion by terminating
            appellant’s parental rights where DFPS expressly stated in its
            last supplemental answers to his interrogatories and in its

                                            3
              November 2015 permanency report that it was not seeking
              termination; he completed all tasks on his family service plan;
              and its primary permanency goal was family reunification with
              him?”

        (2)   “Was the evidence legally and factually sufficient to support the
              termination   of    appellant’s     parental     rights    under
              §161.001(b)(1)(e)?”
        (3)   “Was the evidence legally and factually Sufficient to support
              the termination finding under §161.001(b)(1)(o)?”

        (4)   “Was the evidence legally and factually sufficient to support the
              best interest termination finding?”

                   FAILURE TO SUPPLEMENT DISCOVERY

        At the beginning of trial, Father’s attorney complained that he “just

recently” found out that the Department’s goal for Father was termination of

parental rights. In February 2016, the Department stated in an answer to an

interrogatory that it was not seeking termination of Father’s rights. Thus, Father’s

attorney argued:

        So obviously now that they’ve changed that goal, there’s surprise and
        prejudice to me. They haven’t simply supplemented their answers to
        interrogatories. And I ask that the Court not consider any evidence in
        support of any alleged termination against the father.

        The Department responded that, on the date the interrogatories were

answered identifying the Department’s goal, the person that answered the

interrogatories was not aware that Father had tested positive for drug use in August

2015.



                                          4
      The Department also explained that it had tried to reunify M.F.D. into a

home with Father and Father’s mother, but that a different judge denied the request

for that placement on November 17, 2015, so the option of reunification with

Father was off the table at that point. At that November 2015 hearing, the court

ordered a home study be conducted on Father’s sister, which the Department was

optimistic about. The Department’s and M.F.D.’s attorneys explained, however,

that it turned out that she could not pass a home study either, and that it was just

determined two weeks ago that the Department would move forward with

termination of Father’s rights:

             [M.F.D.’s AD LITEM]: [B]ut once we delved into it, and this
      just happened over the last few weeks, that placement is not going to
      work. Also the father wound up in jail subsequently, during the time
      between February 8th and now. So that’s why the agency – I’m aware
      of, that’s why they changed their goal.
             [FATHER’S ATTORNEY]: The father was allegedly in jail for
      traffic tickets. These -- the notion that the paternal aunt cannot be
      considered is something that Child Advocates hasn’t completely
      chimed in on. They have looked into the father -- at the paternal aunt
      and they have analyzed her and yes, she had a DWI history quite
      sometime back but it is a good placement. She’s married to a husband
      who can support, who already has a kid there in his house.
              THE COURT: Well this says that she has three DWI’s in the
      last six years.
           [M.F.D.’s AD LITEM]: And other criminal history. There was
      DWI's in ‘11, ‘12 and ‘13, as well as, I believe, forgery and --
             THE COURT: Okay. So they denied that home study?
            [M.F.D.’S AD LITEM]: They initially denied it. But at first we
      thought there was one DWI. When we delved into it, there was
      extensive criminal history and there’s some inaccuracies about what

                                         5
she’s doing in school, whether or not she’s living with her husband,
what have you.
        THE COURT: Okay. Well we’re gonna get back to this issue
that -- do you have any response to his objection?
      [THE DEPARTMENT’S ATTORNEY]: Judge, the agency has
never removed – it’s all depended on whether they do their service
plan in whether the goal is going to change. And I know what the
agency said then but the circumstances have changed now. And the
agency has pleadings on file to terminate.
       THE COURT: So you feel like his objection should be that you
just didn’t supplement your answer to discovery.
      [THE DEPARTMENT’S ATTORNEY]: That would be correct.
And we didn’t -- the goal didn’t change until after the discovery
period had ended, Judge.
      THE COURT: Well does that mean you can’t supplement just
because the discovery period has ended?
       [THE DEPARTMENT’S ATTORNEY]: It does not, Judge. But
they were still working the details out and, at least initially, I was
informed that Child Advocates was not in favor of termination and I
understand that that was a misunderstanding. I did not send -- I did not
tell [Father’s counsel] until this morning that the goal had changed.
      ....
      THE COURT: And the earliest he could have told you would
have been maybe a month ago.
      [THE DEPARTMENT’S ATTORNEY]: Two weeks ago,
Judge.
      THE COURT: Well two weeks ago?
      [THE DEPARTMENT’S ATTORNEY]: Yes.
      ....
       [FATHER’S COUNSEL]: And in answers to these same
interrogatories, Judge, they’ve said that Father has completed the
entire family service plan. So I just want --
      THE COURT: He may have completed the entire service plan
but they say that he tested positive. Whatever he did. Okay. All right
then. Your objection’s overruled. Let’s go forward.
                                   6
      The court then admitted the Department’s exhibits in support of termination

of Father’s rights.

      A. Applicable Law and Standard of Review
      The sole bases for Father’s objections in the trial court, and in his brief here,

are Rules 193.5 and 193.6 of the Texas Rules of Civil Procedure:

      193.5. Amending or Supplementing Responses to Written Discovery

      (a) Duty to Amend or Supplement. If a party learns that the party’s
      response to written discovery was incomplete or incorrect when made,
      or, although complete and correct when made, is no longer complete
      and correct, the party must amend or supplement the response:
         (1) to the extent that the written discovery sought the identification
         of persons with knowledge of relevant facts, trial witnesses, or
         expert witnesses, and
         (2) to the extent that the written discovery sought other information,
         unless the additional or corrective information has been made
         known to the other parties in writing, on the record at a deposition,
         or through other discovery responses.
      (b) Time and Form of Amended or Supplemental Response. An
      amended or supplemental response must be made reasonably
      promptly after the party discovers the necessity for such a response.
      Except as otherwise provided by these rules, it is presumed that an
      amended or supplemental response made less than 30 days before trial
      was not made reasonably promptly. An amended or supplemental
      response must be in the same form as the initial response and must be
      verified by the party if the original response was required to be
      verified by the party, but the failure to comply with this requirement
      does not make the amended or supplemental response untimely unless
      the party making the response refuses to correct the defect within a
      reasonable time after it is pointed out.
      TEX. R. CIV. P. 193.5.




                                          7
      193.6. Failing to Timely Respond—Effect on Trial

      (a) Exclusion of Evidence and Exceptions. A party who fails to make,
      amend, or supplement a discovery response in a timely manner may
      not introduce in evidence the material or information that was not
      timely disclosed, or offer the testimony of a witness (other than a
      named party) who was not timely identified, unless the court finds
      that:
         (1) there was good cause for the failure to timely make, amend, or
         supplement the discovery response; or
         (2) the failure to timely make, amend, or supplement the discovery
         response will not unfairly surprise or unfairly prejudice the other
         parties.
      (b) Burden of Establishing Exception. The burden of establishing
      good cause or the lack of unfair surprise or unfair prejudice is on the
      party seeking to introduce the evidence or call the witness. A finding
      of good cause or of the lack of unfair surprise or unfair prejudice must
      be supported by the record.
      (c) Continuance. Even if the party seeking to introduce the evidence
      or call the witness fails to carry the burden under paragraph (b), the
      court may grant a continuance or temporarily postpone the trial to
      allow a response to be made, amended, or supplemented, and to allow
      opposing parties to conduct discovery regarding any new information
      presented by that response.
TEX. R. CIV. P.193.6.

      “Evidentiary rulings are committed to the trial court’s sound discretion.”

Perez v. Williams, 474 S.W.3d 408, 418 (Tex. App.—Houston [1st Dist.] 2015, no

pet.) (quoting U–Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012)). A

trial court abuses its discretion if it acts without regard for guiding rules or

principles. Id. To show the trial court abused its discretion, an appellant must

demonstrate that: (1) the court erred in not admitting the evidence; (2) the excluded


                                         8
evidence was controlling on a material issue dispositive of the case and was not

cumulative; and (3) the error probably caused rendition of an improper judgment in

the case. Jones v. Pesak Bros. Constr., Inc., 416 S.W.3d 618, 632 (Tex. App.–

Houston [1st Dist.] 2013, no pet.) (citing TEX. R. APP. P. 44.1(a), and Tex. Dep’t of

Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000)). We uphold the trial court’s

evidentiary ruling if we discern a legitimate basis for it. Id. (citing Owens–Corning

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)).

      B. Parties’ Arguments

      Father argues that Rule 193.6 “mandates exclusion of the undisclosed

material or information” absent “a showing of good cause, lack of unfair surprise,

or a lack of unfair prejudice.” According to Father, the Department was required

to amend its February 2015 responses to interrogatories that stated “At this time,

the agency is not seeking termination of father’s rights,” and “The father has

completed all tasks on his family plan of service.”1 Thus, Father complains that he

was subject to trial by ambush, which—he asserts—is particularly troubling given

the due process concerns present in termination of parental cases.

      The Department counters that Father’s brief “fails to acknowledge the

entirety of the evidence relevant to [his] argument, nor accounts for the procedures


1
      Father also claims that Child Advocates affirmatively misled Father’s counsel by
      telling him a week before trial that Child Advocates would not recommend
      terminating father’s rights.
                                          9
in place which afforded [Father] ample notice that his rights were at stake.” The

Department urges us to rely on the general rules regarding discovery sanctions, i.e.,

“whether (1) there is a direct relationship between the offensive conduct and the

sanction imposed and (2) the sanction is no more severe than necessary to satisfy

its legitimate purpose.” (citing In re Hood, 113 S.W.3d 525, 529 (Tex. App.—

Houston [1st Dist.] 2003, no pet.)). It argues that, for policy reasons, application

of Rule 193.6 would be particularly inappropriate in a termination of parental

rights case:

      The Department contends that where a child’s best interest is at stake,
      a sanction precluding the trial court’s hearing of a claim for
      termination brought by the Department would be inappropriate as
      doing so would disregard the purpose of the Texas Family Code to
      ensure the protection of children. See Hood, 113 S.W.3d at 529
      (stating it would only be in the most unusual circumstances where the
      facts would support precluding a hearing on the merits when a child’s
      best interest is involved.) The Family Code makes clear that the
      primary purpose of the procedures governing suits brought by the
      Department is to protect children. See TEX. FAM. CODE ANN.
      §§261.101 et seq. (regarding mandated reporting of child abuse or
      neglect), 261.302 (requires Department to take action under Chapter
      262 if necessary to protect the child from further abuse or neglect),
      262.102 and 262.104 (authorizing the Department to take custody
      when there is an immediate danger to the child), 262.201 (Department
      may only retain custody where there is a continuing danger to the
      child), 161.001(b)(1) (allowing for the termination of a parent’s rights
      in situations including where a parent abandons, endangers, or fails to
      support a child). These suits are therefore distinguished from
      TransAmerican [Natural Gas Corp. v. Bryan Anesthesia, Inc., 811
      S.W.2d 913, 917 (Tex. 1991)] and other civil suits, where parties who
      violate the rules of discovery risk only their own interest in the case.
      In a suit for parental termination, the trial court must consider the
      negative effects on the subject children of excluding evidence relevant
                                         10
      to their welfare, as any discovery sanction which bars the admission
      such evidence risks an impermanent or unsafe outcome for the child.
      This case aptly demonstrates the impact such a sanction might have.
      In this case, as in all parental-rights termination cases, the evidence
      supportive of the Department’s termination request was relevant to a
      determination regarding M.F.D.’s best interest. See In re A.C., 394
      S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.)
      (“Evidence establishing one of the predicate acts under section
      161.001(1) also may be relevant to determining the best interest of the
      child.”). Had the court granted [Father’s] request to prohibit, “any
      evidence in support of any alleged termination against the father,” it
      would have removed from M.F.D. at least one the protections
      afforded her by the Texas Family Code – the termination of her
      parents’ rights. The court also would have been forced to make a
      determination regarding M.F.D. without the benefit of all the pertinent
      evidence. The claims in the Department’s petition which did not
      involve termination regarded conservatorship of, and possession and
      access to the child.

      C. Analysis

      Preliminarily, we reject the Department’s argument that the general analysis

applicable to discovery sanctions applies when a violation of Rule 193.6 occurs.

We have previously held that the exclusion of evidence provided for under this rule

“is mandatory, and the only permissible sanction for a violation . . . unless the trial

court finds good cause or a lack of surprise or prejudice.”      Dyer v. Cotton, 333

S.W.3d 703, 717 (Tex. App.—Houston [1st Dist.] 2010, no pet.); see also Gibbs v.

Bureaus Inv. Grp. Portfolio No. 14, LLC, 441 S.W.3d 764, 766 (Tex. App.—El

Paso 2014, no pet.) (“The sanction for failure to comply with this rule is the

‘automatic and mandatory’ exclusion from trial of the omitted evidence.”).



                                          11
      Accordingly, the issue we are presented with is not—as the Department

contends—whether exclusion would be the least severe sanction necessary to meet

legitimate goals; instead Father has properly framed the issue as whether the trial

court abused its discretion by determining that the Department established that its

failure to supplement its interrogatories to reflect its intent to seek termination of

parental rights was supported by good cause or the lack of unfair surprise or unfair

prejudice.

      Rule 193.6 states that “[a] finding of good cause or of the lack of unfair

surprise or unfair prejudice must be supported by the record,” and Rule 193.5

provides an exception to the supplementation requirement if “the additional or

corrective information has been made known to the other parties in writing.”

While Father argues that he first received notice that the Department was seeking

termination the morning of trial in violation of Rule 193.5, the Department

correctly asserts that the record does not support this contention.              The

Department’s petition, a status-hearing order, and his family service plan all put

Father on notice months before trial that the Department would seek termination of

parental rights if reunification could not be achieved. At a November 17, 2015

hearing, Father was denied reunification with M.F.D., and a home study was




                                         12
ordered on a different family member as a potential kinship placement.2              Father

was thus on notice in November of 2015 that reunification was not achieved,

leading the Department to seek termination of Father’s parental rights, as was

indicated in these earlier filings.

       Father further claims he did not have an opportunity the morning of trial to

put together a verified motion for continuance. He concedes, however, that had he

been alerted before trial of the Department’s goals, he would have had time to

prepare a motion had he needed one. His argument ignores that an agreed motion

for continuance need not be verified. TEX. R. CIV. P. 251 (“No application for a

continuance shall . . . be granted except for sufficient cause supported by affidavit,

or by consent of the parties, or by operation of law.” (emphasis added)). Nothing

2
       The record also contains a February 29, 2016 Permanency Report identifying the
       Department’s “Primary Permanency Goal” as “Unrelated Adoption.” See TEX.
       FAM. CODE § 263.303(a) (“Not later than the 10th day before the date set for each
       permanency hearing before a final order is rendered, the department shall file with
       the court and provide to each party, the child’s attorney ad litem, the child's
       guardian ad litem, and the child's volunteer advocate a permanency progress report
       unless the court orders a different period for providing the report.”). Father does
       not deny receiving this report, but points out that “the record does not reflect”
       when he received it, as it “does not contain a certificate of service.” Alternatively,
       Father argues that “assuming father’s trial counsel received and read it the day it
       was filed, that would still only be a week before the March 8 trial.” The record
       indicates that the report was filed with the court on February 29, 2016, and the
       body of the report identifies Father and Father’s attorney as “person’s entitled to
       notice of the hearing.” The report also states that Father was personally served on
       “3/5/2015.” Given that Father could not have been served in 2015 with a report
       prepared in 2016, this service recitation cannot be accurate. While we assume the
       Department complied with its obligations to timely serve Father and Father’s
       attorney under section 263.303(a) of the Texas Family Code, our disposition need
       not turn on when the report was served.
                                             13
in the record indicates that Father asked the Department the morning of trial to

agree to a continuance; nor does the record reflect that Father asked the court to

exercise its discretion to continue the trial under Rule 193.6(c) (“Even if the party

seeking to introduce the evidence or call the witness fails to carry the burden under

paragraph (b), the court may grant a continuance or temporarily postpone the trial

to allow a response to be made, amended, or supplemented, and to allow opposing

parties to conduct discovery regarding any new information presented by that

response.”). More importantly, given the record evidence that Father did have

notice, in writing, months before trial that termination would be the Department’s

goal if reunification was not possible, coupled with the fact that reunification had

in fact been denied in November of 2015, the trial court did not abuse its discretion

in finding a “lack of unfair surprise or unfair prejudice.” TEX. R. CIV. P. 193.6.

We overrule Father’s first issue.

                      SUFFICENCY OF THE EVIDENCE

         In issues two, three, and four, Father challenges the sufficiency of the

evidence to support (1) termination under Family Code section 161.001(b)(1)(E)

(endangerment), (2) termination under Family Code section 161.001(b)(1)(O)

(failure to complete service plan), and (3) the finding that termination of Father’s

parental rights was in M.F.D.’s best interest.




                                          14
      A. Applicable Law and Standard of Review

      A parent’s rights to the “companionship, care, custody, and management” of

his or her child is a constitutional interest “far more precious than any property

right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982);

see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Therefore, we strictly scrutinize

termination proceedings and strictly construe the involuntary termination statutes

in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However,

“the rights of natural parents are not absolute” and “[t]he rights of parenthood are

accorded only to those fit to accept the accompanying responsibilities.” In re A.V.,

113 S.W.3d 355, 361 (Tex. 2003). Recognizing that a parent may forfeit his or her

parental rights by their acts or omissions, the primary focus of a termination suit is

protection of the child’s best interests. Id.

      In a case to terminate parental rights by the Department under § 161.001 of

the Family Code, the Department must establish, by clear and convincing

evidence, that (1) the parent committed one or more of the enumerated acts or

omissions justifying termination and (2) termination is in the best interest of the

child. TEX. FAM. CODE ANN. § 161.001 (West 2008). Clear and convincing

evidence is “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.” Id. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “Only


                                            15
one predicate finding under section 161.001(1) is necessary to support a judgment

of termination when there is also a finding that termination is in the child’s best

interest.” A.V., 113 S.W.3d at 362.

      In a legal sufficiency review in a parental-rights-termination case, the

appellate court should 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. J.F.C., 96 S.W.3d at 266. We assume

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

factfinder could do so, disregarding all evidence that a reasonable factfinder could

have disbelieved or found to have been incredible. Id. If, after conducting a legal

sufficiency review of the record, we determine that no reasonable factfinder could

form a firm belief or conviction that the matter that must be proven is true, then we

must conclude that the evidence is legally insufficient. Id.

      In conducting a factual-sufficiency review in a parental-rights-termination

case, we must determine whether, considering the entire record, including evidence

both supporting and contradicting the finding, a factfinder reasonably could have

formed a firm conviction or belief about the truth of the matter on which the

Department bore the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

We should consider whether the disputed evidence is such that a reasonable

factfinder could not have resolved the disputed evidence in favor of its finding. In


                                          16
re J.F.C., 96 S.W.3d at 266–67. “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 H.R.M., 209 S.W.3d

105, 108 (Tex. 2006).

      B. Sufficiency of the evidence under section 161.001(1)(b)(O)
      Subsection (O) allows termination when the parent has failed to satisfy

conditions of a service plan. Specifically, it provides that the court can order

termination upon a finding, by clear and convincing evidence, that a 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(b)(O) (West 2008). Texas courts generally take a

strict approach to subsection (O)’s application. In re D.N., 405 S.W.3d 863, 877

(Tex. App.—Amarillo 2013, no pet.). The burden of complying with the court

order is on the parent. Id. at 878. Courts do not measure the “quantity of failure”

or “degree of compliance.” Id. at 877. Rather, courts only look for a parent’s

failure to comply. See In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009,

no pet.) (holding subsection (O) does not intend an evaluation of a parent’s partial


                                         17
achievement of plan requirements); see also In re A.W., No. 01-15-01030-CV,

2016 WL 3022824, at *7 (Tex. App.—Houston [1st Dist.] May 26, 2016, no. pet.)

(mem. op.) (holding substantial compliance with a court-ordered service plan may

be insufficient to avoid termination).

      Despite this strict approach, the Department must present evidence that the

plan established specific actions the parent must take for the return of the child. In

re D.N., 405 S.W.3d at 877-78. In In re D.N., the mother challenging termination

of her parental rights under subsection (O) had been directed by DFPS to simply

“find whatever she could” regarding programs and services; the court-ordered plan

did not outline any specific actions she needed to take to be in compliance. In re

D.N., 405 S.W.3d at 878. The court of appeals held that her rights could not be

terminated under subsection (O) because the “do-as-best-as-you-can directive” was

not specific enough and gave little way to measure the mother’s compliance. Id.

      Father challenges the sufficiency of the evidence “to prove that he failed to

comply with the provisions of a court order that specifically establish[s] the actions

necessary for the parent to obtain the return of the child.” He “concedes the State

met its burden with regard to the other elements of subsection (O).”

      Father’s service plan, dated April 15, 2015, was “approved and made on

order” of the court May 7, 2015, and identified the following goals:




                                         18
         [Father] will demonstrate the willingness and ability to protect the
          child from harm. [Father] will show the ability to parent and protect
          the child.
         [Father] will demonstrate the ability to put the needs of the children
          ahead his own.
         [Father] will demonstrate an ability to provide basic necessities such
          as food, clothing, shelter, medical care, and supervision for the child.
         [Father] will demonstrate an understanding of child development and
          appropriate expectations and the ability to put the physical, emotional,
          and social needs of the child ahead of his own needs and be able to
          provide the child with nurture and support in a protective
          environment.
         [Father] will abstain from the participation in criminal activity, drug
          usage and will accept responsibility for his past maladaptive
          behaviors.
         [Father] will demonstrate an ability to change the pattern of behaving
          that resulted in abuse/neglect.
     The service plan also identified the following specific tasks for Father to

complete:

         [Father] will maintain verifiable income for at least 6 months. He will
          provide the caseworker with all sources of income for himself. If
          [Father] is working, he loses his job or stops working he will provide
          the caseworker with proof of registration at The Work source and a
          list of 3 employers with name and phone number where he has
          submitted an application or resume per week. This list will be due at
          the end of each month.
         [Father] will refrain from all illegal drug use and criminal activity.
          [Father] will maintain a positive support system and will not associate
          with individuals who use alcohol or illegal substances.
         [Father] will maintain, safe, stable, and drug free housing for at least 6
          months consecutively. He will maintain utilities such as electricity,
          gas, and water. [Father] will notify the worker within 24 hours should
          he relocate. He will provide the caseworker with his address and
          contacting information. He will allow the worker access to his
                                       19
   residence and notify the worker of any additional persons residing
   with him.
 [Father] will participate in parenting classes. Classes must be at least
  6–8 weeks in length. [Father] will be provided with a list of parenting
  classes by [the Department] caseworker. [Father] will be responsible
  for enrolling in classes and for any fees associated with the parenting
  classes. Upon completion of the parenting classes, [Father] will
  provide the caseworker with his certificate of completion. He will be
  able to verbalize the parenting techniques he has learned in the
  parenting classes and put them into practice during family visits. No
  Internet Classes will be accepted.
 [Father] will participate in all court hearings, permanency conference
  and other meetings regarding his child. He will provide [the
  Department] worker with a release of information for all service
  providers, medical personnel and court representatives to obtain
  records and progress information regarding her case. He will also
  maintain contact with his [Department] caseworker on a monthly
  basis.
 [Father] will participate in psycho-social evaluation and follow all
  recommendations which may include more services.               [The
  Department] will pay for these services as long as the client is
  compliant. If two appointments are missed, [Father] will be
  financially responsible for these services.
 [Father] will participate in individual therapy and follow all
  recommendations which may include more services. DFPS will pay
  for these services as long as the client is compliant. If two
  appointments are missed, [Father] will be financially responsible for
  these services.
 [Father] will participate in random UA and hair follicle drug and
  alcohol testing. Should he test positive or alter any tests, he will be
  required to complete a substance abuse assessment. If the UA is
  missed, it will be considered positive. If a dilute[d] or altered sample
  is provided, it will be considered a positive result. The agency will
  pay for this service as long as the client is compliant. If he is non-
  compliant, [Father] will be responsible for payment of this service.




                               20
      At trial, B. Jefferies with the National Screening Center testified about the

results of Father’s drug tests.   Specifically, on August 18, 2015, Father tested

positive for cocaine, opiates, and alcohol. Jefferies opined that the drug levels

Father tested at reflected that he was not using drugs very often, but “[i]t’s more

than a one time use.” On cross examination, Jefferies testified that, in May, Father

tested negative for drugs, but positive for alcohol. Father testified positive for

alcohol again in November of 2015.

      L. Henderson, M.F.D.’s case worker, testified that Father completed several

of his service plan tasks, such as the parenting classes, individual counseling

recommended following his psychological analysis, the substance abuse

assessment, and out-patient treatment. When asked about what services Father had

not completed, Henderson testified:

             A.     He just hasn’t been with his employment — is not
      sufficient income and he has not been able to sustain stable housing.
      And also he was arrested this past weekend which violates the no
      criminal acts.
            Q.     Okay. But he was arrested for traffic offenses, correct?
            A.     Correct.
             Q.     But the fact that he had traffic offenses out there is a
      reflection of the stability of his home; is that not correct?

            A.     Correct.
      Henderson also testified that Father was not able to provide a stable home

environment, and that while he did provide proof of income, Father does not have


                                        21
sufficient income to care for his child. He also moved from his mother’s home to

his aunt’s home, and then back to his mother’s home, which Henderson testified

does not satisfy his service plan’s requirement of six months’ stable housing.

      Henderson testified that Father has a pretty long criminal history from before

2008, which includes a conviction for manufacturing and delivery of a controlled

substance and possession of a controlled substance.

      L. Thomas, the Court Appointed Special Advocate, acknowledged that she

had told Father’s attorney that she would not be recommending termination of

Father’s parental rights, but that she changed her mind after talking with M.F.D’s

ad litem and her supervisor.

      Father testified that he and Mother lived together at Father’s mother’s home

when M.F.D. was born. Because he worked all the time, Father explained that he

did not realize that Mother was doing drugs regularly. He conceded that Mother

would disappear for days at a time, but testified that he did not know what she was

doing. The phone call that M.F.D. had been taken into the Department’s care was

a shock to him.

      Father explained that his arrest the week prior to trial was for warrants

related to unpaid traffic tickets. Father admitted to using cocaine “in the past”

without a specific timeframe. He also admitted to numerous criminal convictions

in the past, and testified that he is still on probation until 2024 for a conviction for


                                          22
manufacturing and delivering controlled substances.         He received a 15-year

sentence, but was released from prison and placed on parole after serving four

years. In response to questions from the trial court judge, he acknowledged that

his positive drug tests since being released violated the terms of his parole and

could result in incarceration for the remainder of his sentence. He had a parole

revocation hearing scheduled for the day after the underlying parental-rights-

termination trial.

       Father testified that he has two other children, a 21-year old daughter and a

son, who is being raised by his sister. Father wants M.F.D. to have a relationship

with his other children and believes his sister can, and is willing, to help him take

care of M.F.D.

       Father’s sister testified that Father had “turned his life around.” When asked

by the court about Father’s drug use in August 2015, she clarified that she meant

Father turned his life around at some point by quitting his practice of selling drugs.

She testified that she was unaware of Father’s recent drug use and that she was

disappointed by it. She testified that Father’s son has thrived living with her, and

that she has been alcohol free for four years. She also testified that she and her

husband wanted M.F.D. to be placed with them and that they had the income and

ability to care for her.




                                         23
      When asked by the court to summarize the evidence in support of

termination, the Department relied on Father’s failed drug test (in violation of his

service plan and his parole conditions), as well as the lack of stable housing and

having an annual income of only $3,000 to support their seeking termination under

161.001(b)(1)(O).

      The service plan required that Father refrain from all illegal drug use and

criminal activity, as well as establish that he can “demonstrate an ability to provide

basic necessities such as food, clothing, shelter, medical care, and supervision for

the child.” There was evidence presented that he did not satisfy these aspects of

the service plan. And, as the trial court pointed out, his use of cocaine in violation

of his parole conditions seriously jeopardizes his ability to provide for M.F.D. in

the future, as his parole may be revoked. Father and his sister testified to his

sister’s ability to provide for M.F.D., but that does not bear on whether Father met

his obligations under his service plan, leading to the trial court’s finding that

termination of Father’s parental rights was warranted under 161.001(b)(1)(O). The

trial court’s rejection of Father’s sister’s request that M.F.D. be placed with her is

not the subject of this appeal. We overrule Father’s third issue on appeal. Because

a single ground under section 161.001(b)(1) can support termination, we need not

reach Father’s second issue that the evidence to support termination under

161.001(b)(1)(E) is insufficient.


                                         24
      C. Best Interest

      As a matter of public policy, “the best interest of a child is usually served by

maintaining the parent-child relationship.” J.F.C., 96 S.W.3d at 294. Despite this

important relationship, the Texas Supreme Court has held that “protection of the

child is paramount” and “the rights of parenthood are accorded only to those fit to

accept the accompanying responsibilities.” A.V., 113 S.W.3d at 361.

      Appellate courts examine the entire record to decide what is in the best

interest of the child. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). Courts

weigh: (1) the desires of the child; (2) the emotional and physical needs of the

child now and in the future; (3) the emotional and physical danger to the child now

and in the future; (4) the parental abilities of the individual seeking custody; (5) the

programs available to assist the individual; (6) the plans for the child by the parent

and the individual seeking custody; (7) the stability of the home; (8) the parent’s

acts or omissions that indicate that the existing parent-child relationship is not a

proper one; and (9) any excuse for the parent's acts or omissions. In re V.V., 349

S.W.3d 548, 557–58 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). The

Department need not prove every factor as a condition precedent to parental

termination. In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.]

2012, no pet.).    Furthermore, lack of evidence about some factors does not




                                          25
preclude a factfinder from reasonably concluding that termination is in the child’s

best interest. Id.

      Father’s argument about why termination of his parental rights is not in

M.F.D.’s best interest is that his sister and her husband are appropriate relatives for

placement. He points out that his sister has been at several court hearings and has

been very active in trying to get M.F.D. placed with her. In addition, Father’s

sister has raised Father’s other children.

      The Department denied placement of M.F.D. with Father’s sister following a

home study. But the court instructed the Department “to look into it further.” The

Department conducted another home study, and still denied placement, in part

because of a history of DWI convictions. Accordingly, the trial court denied

Father’s request that M.F.D. be placed with Father’s sister and, as noted earlier,

that decision is not the subject of this appeal.

      Applying the factors relevant to determining if termination of Father’s

parental rights in is in M.F.D.’s best interest, we conclude that the trial court’s

finding is supported by legally and factually sufficient evidence.

      The desires of the child. M.F.D. is too young to express an opinion about

termination. But there was evidence that she has bonded with her Father at visits.

Thus, the evidence relevant to this factor is neutral or weighs slightly against

termination of Father’s parental rights being in M.F.D.’s best interest.


                                             26
      Emotional and physical needs now and in the future. There is evidence that

Father does not have the stability or sufficient income to take care of M.F.D. and

that he may be incarcerated soon given that he violated the terms of his parole by

using cocaine. Father did not testify to any plans he had for personally providing

for his daughter’s needs now or in the future, but expressed his desire that she be

placed with his sister so that she “would receive the same upbringing as” his other

kids that his sister raised. Given that Father has no plans to provide for his

daughter, and given that his sister’s home study has been denied (to the extent his

sister’s ability to meet M.F.D.’s needs is relevant), this factor weighs in favor of

termination of Father’s parental rights being in M.F.D.’s best interest.

      Stability of the home. For the same reasons cited in the last category, this

factor weighs in favor of termination being in M.F.D.’s best interest.

      Emotional and physical danger to the child now and in the future. There is

evidence that M.F.D. and Father have bonded, so his potential future incarceration

could be emotionally traumatic to her. As for physical danger, Father admitted to

using drugs and he left M.F.D. with Mother, who was using drugs. While he

claimed to not know about Mother’s drug use, he did concede that Mother would

disappear for days at a time with no explanation. The trial court could have found

Father’s assertion that he did not know Mother, with whom Father left M.F.D.,

used drugs to not be credible. And, depending on the circumstances, Father’s


                                          27
current or continued drug use could potentially put M.F.D. at physical risk. On the

other hand, there was evidence that he placed his other children with relatives out

of harm’s way, indicating that he might likewise be able to find a place for M.F.D.

that would keep her out of harm’s way. Given, however, the high risk Father could

be reincarcerated for an extended period of time for parole violations, M.F.D. is in

danger of that causing her emotional distress regardless of whether Father can find

a relative to provide a physically safe home. Thus, this factor weighs slightly in

favor of termination of Father’s parental rights being in M.F.D.’s best interest.

      Plans for the child by parent and person seeking custody. The only plan

Father expressed for M.F.D. was to send her to live with his sister, who has twice

failed a home study and with whom the courts have refused to place M.F.D. This

factor weighs heavily in favor of termination of Father’s parental rights being in

M.F.D.’s best interest.

      Parental abilities of person seeking custody. While there is evidence that

Father acted appropriately in visits with M.F.D. and has a good relationship with

his other children, there is no other evidence of his parental abilities, and he did not

raise his other two children. To the extent that his sister’s parental abilities are

relevant, she has been found twice to not be a suitable placement. This factor is

neutral.




                                          28
      Parent’s acts or omissions indicating that the existing parent-child

relationship is not a proper one, and any excuse for acts or omissions. There is

evidence that Father left M.F.D. with Mother, and his excuse was that he did not

know that Mother was doing drugs. The factfinder was entitled to discredit this

testimony based upon the circumstantial evidence before it. While he has bonded

appropriately during visits with M.F.D., Father has not taken steps to secure a

home or income to support her.         In addition, he has put himself at risk for

reincarceration by using cocaine, which would leave M.F.D. at risk. From this, the

trial court could conclude that Father has not taken actions consistent with a

“proper” relationship with M.F.D. This factor weighs in favor of the trial court’s

finding that termination of Father’s parental rights is in M.F.D.’s best interest.

      Based on application of the above factors, we conclude that the trial court’s

determination that termination of Father’s parental rights was in M.F.D.’s best

interests and supported by legally and factually sufficient evidence. We overrule

Father’s fourth issue.




                                          29
                                CONCLUSION

      We affirm the trial court’s judgment.     Father’s motion for rehearing is

denied.




                                            Sherry Radack
                                            Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.




                                       30
