      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-12-00113-CV



                                            L. Z., Appellant

                                                     v.

                  Texas Department of Family and Protective Services, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 395TH JUDICIAL DISTRICT
      NO. 10-2616-F395, HONORABLE MICHAEL JERGINS, JUDGE PRESIDING



                               MEMORANDUM OPINION


                  L.Z. appeals the trial court’s order terminating his parental rights to his child, J.Z.,

following a bench trial.1 L.Z. challenges the legal sufficiency of the evidence to support the order

of termination for failure to complete the family service plan, see Tex. Fam. Code Ann.

§ 161.001(1)(O) (West Supp. 2011), and the factual sufficiency of the evidence to support the trial

court’s conclusion that termination was in the best interest of J.Z., see id. § 161.001(2) (West 2008).

Because we conclude that the evidence was legally and factually sufficient, we affirm the trial

court’s order.2




       1
           We use initials to refer to appellant and his child. See Tex. R. App. P. 9.8.
       2
           J.Z.’s mother voluntarily relinquished her parental rights and is not a party to this appeal.
                      FACTUAL AND PROCEDURAL BACKGROUND

               The appellate record shows that L.Z. has an extended history with child protective

services in this state and two others. He and his former girlfriend were contacted by child protective

services in Florida in response to four separate referrals in 2001 and 2003 regarding family violence

and were investigated in Maryland in 2005 concerning neglectful supervision of one or more of their

three children. L.Z. moved to Texas in 2007 or 2008 and has been actively under investigation or

receiving services from the Department since 2008 as a result of issues with alcoholism, drug

addiction, and anger management and domestic violence. The Department removed his three older

children in July 2009. L.Z. completed an intensive outpatient drug and alcohol treatment program

in December 2009, and three months later he was arrested for public intoxication.

               During the summer of 2008, L.Z. had become romantically involved with J.Z.’s

mother, S.W., whom he met in February 2008, and on March 10, 2010, while the case concerning

L.Z.’s three older children was still pending, J.Z. was born. On July 4, 2010, L.Z. admittedly

smoked marijuana. On August 11, 2010, two referrals were made to the Department regarding J.Z.

The first alleged neglectful supervision by L.Z. and S.W. and included allegations of domestic

violence. The second alleged physical abuse of J.Z. by L.Z., specifically that he had held J.Z. upside

down by his ankles and dropped him onto a pillow on the floor. The Department investigated and

found no external evidence of physical abuse against J.Z. Although both L.Z. and S.W. denied

allegations of domestic violence, the Department later learned that there had been approximately

eight other law enforcement calls to the home for verbal disturbance, physical disturbance, and

welfare checks, including one on August 11, 2010, prior to the referrals. The Department also



                                                  2
learned of L.Z.’s prior arrest in Texas for public intoxication, which he had failed to disclose, and

his extensive out-of-state criminal history.3 Subsequent drug test reports for both L.Z. and S.W.

were negative; however, both samples were “diluted.”

               On August 19, 2010, with the agreement of L.Z. and S.W., the Department placed J.Z.

with his maternal grandparents. On August 20, 2010, L.Z.’s referral to Family Based Safety Services

was rejected based on his prior completion of services with no signs of progression. On September

13, 2010, the grandparents informed the Department that they could no longer provide for J.Z., and

that same day the Department took custody, filed an original petition for protection of a child,

conservatorship, and termination, and was appointed temporary managing conservator of J.Z. The

petition alleged several grounds for termination, including failure to comply with the provisions of

the court’s order that established the actions necessary to obtain the return of the child. See id.

§ 161.001(1)(O). On September 24, 2010, the Department filed its report to the court, which

included the determinations regarding the allegations made in the referrals, proceeding under the

neglectful supervision allegation. Physical abuse, the second allegation, was ruled out.

               The Department placed J.Z. in foster care and prepared a family service plan for L.Z.

The plan stated that the permanency goal was to reunite the family. The tasks assigned to L.Z.

included various types of therapy, a psychological examination, and refraining from criminal activity.

In November 2010, L.Z. was arrested for driving while intoxicated, and several days later he

relinquished his parental rights to his three older children. In January 2011, the Department filed a


       3
         The record reflects arrests for stalking (two), burglary, trespass, criminal mischief, battery
(two), violation of a protective order (three), second degree assault, consuming alcohol on public
property, and assault causing bodily injury.

                                                  3
permanency report stating family reunification as the goal. In September 2011, S.W. moved out of

the home she shared with L.Z., and during the first week of December 2011, L.Z. was again arrested

for driving while intoxicated. Ultimately, the Department determined that the goal of reunification

was unattainable and filed its final permanency report on December 6, 2011, indicating a goal of

placement with a relative.4 The case proceeded to a bench trial in the following week.5 The trial

court heard testimony from L.Z., S.W., J.Z.’s foster father, the Department investigator and

caseworker, L.Z.’s pastor, therapist, and outpatient counselor, the psychologist who evaluated L.Z.,

and L.Z.’s mother.


L.Z.’s Testimony

               L.Z. testified that the Department initially became involved with him concerning his

three older children because of his issues with alcoholism, drug addition, and anger management and

that his drug of choice was marijuana. He stated that he voluntarily entered an inpatient recovery

center in late 2008, where he spent four months learning faith-based skills for coping with his issues.

He also stated that he had completed intensive outpatient treatment in connection with the prior

Department case in December 2009 but subsequently relapsed in March, July, and November 2010,

and more recently in May 2011, following his intensive outpatient treatment, and again in

September 2011, after S.W. left him. He explained that in May 2011 he began drinking again and

       4
         The report stated that a home study had been approved on J.Z.’s maternal grandmother, one
would be ordered on his paternal grandmother, and the foster family wanted to be considered for
long-term placement if the parents’ rights were terminated.
       5
         In exchange for L.Z.’s withdrawal of his jury demand, the Department proceeded to trial
on only one ground for termination, that stated in section 161.001(1)(O). See Tex. Fam. Code Ann.
§ 161.001(1)(O) (West Supp. 2011).

                                                   4
using synthetic marijuana. He acknowledged withholding information from the Department and his

therapist out of “fear of the department” and that he had repeatedly violated court orders.

                Of the tasks required in his service plan, L.Z. testified that he had completed anger

management classes, couples and individual therapy, and outpatient treatment; taken a psychological

examination and submitted to random drug testing; and done his best to remain employed so as to

provide financial resources for J.Z. He further testified that he had failed to complete aftercare

following outpatient treatment, cognitive therapy, and a batterers’ intervention program, refrain from

criminal activity, or attend three Alcoholics Anonymous (AA) or Narcotics Anonymous (NA)

meetings a week, stating that he completed four steps of the twelve-step program. Regarding the

requirement to provide stable and suitable housing for J.Z., L.Z. testified that he has resided in

two places during the pendency of the case, currently rented a room in a house, and couldn’t attend

his scheduled appointment with the caseworker, so that she has not seen his current residence.

Concerning his cooperation with the Department in planning goals, L.Z. stated that he had not been

present for all of the team meetings and had attended two of the court settings. As for visitation with

J.Z., L.Z. testified that he had not been “to every single one of them, but [had] . . . gone to visits with

him,” had transportation issues, and had spent three hours with J.Z. in the last three months. L.Z.

admitted to domestic violence in his prior and current relationships but denied ever being physically

abusive with S.W. He also stated that the issues behind the removal of his three older children—his

problems with alcohol abuse, drug addition, and domestic violence—were still issues for him. He




                                                    5
further testified that he was in relapse and was not currently a safe caregiver for J.Z. but his mother

would be and he would like to retain his parental rights and take J.Z. to Florida to live with

his mother.


S.W.’s Testimony

                S.W. testified that around the time that J.Z. was born, L.Z. was using marijuana

“pretty frequently” and drank two to three times a week on his days off. She further testified that he

became violent or aggressive on multiple occasions, when he was drinking, and that she lied to

investigators and her therapists when she denied domestic violence in their home, including denying

that L.Z. held J.Z. by his ankles and dropped him onto a pillow. She also described two instances

of L.Z.’s violence against her during the pendency of the Department case and stated that she sought

a protective order in August 2010 but was told by the police that since she had not filed any previous

reports, they could not help her. S.W. further testified that L.Z. continued to drink and use synthetic

marijuana during his outpatient treatment, took someone else’s urine to the drug tests—twice, she

believed—and that the longest time she or L.Z. had been clean and sober was four to five months.

                S.W. acknowledged that she withheld her criminal history from the Department and

has assaulted L.Z. in the past. She stated that she intended to relinquish her parental rights because

she feels it is in J.Z.’s best interest, that the foster family “love[s] him and . . . would take him as

their own,” and that it is obvious from seeing them together that J.Z. loves his foster parents more

than her or L.Z. S.W. testified that she understood that termination of L.Z.’s rights would end all

need for future contact between her and L.Z. and that she wanted a new start, but that she was

testifying as she was because she believes J.Z. deserves to live in a home free of drugs, alcohol

                                                   6
abuse, and domestic violence and not because she hates L.Z. Regarding possible placement with her

mother, Sh.W., S.W. testified that Sh.W. “tends to be quite dramatic” and “creates stress.” S.W.

acknowledged that she had previously testified that Sh.W. had abused her and had also requested that

J.Z. be placed with Sh.W.


Foster Father’s Testimony

                J.Z.’s foster father testified that J.Z. had lived with him and his family since

October 2010, was doing extremely well, and was “happy . . . thriving . . . [and] learning lots of

things and learning new words.” He stated that he and his wife love J.Z. and J.Z. considers them his

parents. He further testified that his plans for J.Z. are to “continue watching him grow” and to

facilitate his interest in music and drumming, including by continuing the family’s participation in

an orchestra project at the University of Texas. He stated that J.Z. had lived most of his life with him

and he believes he could provide J.Z. stability.


Paternal Grandmother’s Testimony

                L.Z.’s mother testified, through an interpreter, that she was born in Nicaragua and

lives in Miami, where she has lived for the past twenty-three years. She stated that L.Z. has been

using marijuana and alcohol since he was sixteen years old, started therapy because of it, and lied

to her about abstaining. She also stated that she had seen “a little” change in L.Z. in the past year

but “behind a good man, there’s a good woman, and that is something he has not had.” L.Z.’s

mother further testified that she divorced L.Z.’s father because of domestic violence. She stated that

she is seeking custody of J.Z. on her own, has the financial resources to raise him, and if L.Z. were



                                                   7
to get J.Z. back, she believes L.Z. would “give him to [her] care.” She testified that the foster family

is “good,” she will work with them if she gets custody of J.Z., and she would be able to withhold J.Z.

from L.Z. and grant access to S.W. if S.W. were clean and sober and L.Z. were not.


Caseworker’s Testimony

               Kerrie Judice testified that she had been involved with L.Z. on behalf of the

Department consistently since June 2009, her concerns in both cases were substance abuse and

domestic violence, and L.Z. has not addressed those concerns.              She stated that originally

the permanency goal was reunification but the goal changed when the Department learned in

October 2011 of “continuing concerns.” Judice testified that during her discussions with L.Z., he

had not been forthcoming about sobriety and relapse. She further testified that she would not have

supported reunification in the initial permanency plan if she had known of some of the events she

had heard about in testimony that day, including continued drug and alcohol use. Regarding L.Z.’s

service plan, Judice testified that, in her opinion, he had not completed it and that although he had

completed some of the tasks, her primary concern was his “actually using . . . the tools that he’s

learned in his services” and “actually[] making the changes.” She acknowledged that relapse is a

possibility in most cases and that the goal is to understand the triggers for relapse but stated that

while L.Z. seems to understand his triggers, his actions do not indicate that “he can do anything

about it.” Judice further testified that she agreed that J.Z. would not be safe with L.Z. She

confirmed that the Department had previously recommended placement with J.Z.’s maternal

grandmother, Sh.W., but expressed concerns that Sh.W. exhibited “emotional behavior.” She




                                                   8
acknowledged that S.W. had previously testified that Sh.W. had physically abused her and stated that

for that reason the Department’s recommendation had included that Sh.W. enter counseling.


Investigator’s Testimony

                Bernadette Yupit-Martinez testified that she was the primary investigator on the case

and the investigation lasted approximately one and one-half months. She stated that her ruling on

the allegation of neglectful supervision due to allegations of drinking and domestic violence was

“reason to believe” and that her disposition of the allegation of physical abuse of J.Z. by L.Z. was

“ruled out.” She further testified that if she had subsequently learned that the allegation that J.Z. had

been dangled by his ankles had been confirmed by one of the parents present, she would not have

ruled out physical abuse.


Therapist’s Testimony

                Curtis Lawrence testified that he is a licensed clinical social worker, was L.Z.’s

individual therapist, and conducted three couples sessions with L.Z. and S.W. and that L.Z. actively

participated in therapy. Lawrence further testified that although he has seen some changes in

L.Z.—showing more appropriate behaviors and an overall ability to manage his anger and take

accountability for his actions—L.Z. has been in relapse since July 2011, is not using the tools he has

learned to the extent Lawrence would like, is not a safe parent, and cannot provide the type of

parenting J.Z. needs. He also stated that it concerns him that after being in treatment three times in

the last three years, L.Z. is still abusing alcohol and marijuana and expressed concerned about L.Z.’s

mental health because relapse can cause depression and lead to further problems.



                                                   9
Psychologist’s Testimony

                William Dubin testified concerning the results of the psychological exam he

administered on L.Z. on September 25, 2010, which included an initial interview of thirty to

forty-five minutes, followed by a series of tests. Dubin stated that L.Z. scored high in the vocabulary

portion of the I.Q. test but much lower in “abstraction,” making his “full scale” I.Q. fall into the “dull

normal range,” which, he noted, was significantly less than one would expect from L.Z.’s high

vocabulary. Dubin further testified that L.Z.’s performance on the Wechsler Adult Intelligence Scale

ranged from poor to low average and that he interpreted the results to indicate that L.Z.’s ability to

parent a small child is less that is apparent from a casual meeting with L.Z. and that his overall

intellect is inadequate for successful parenting.

                Dubin also testified that L.Z. suffers from impulsivity and that “this irresponsibility

component” was the “primary finding of [his] report.” He explained that there are different kinds

of irresponsibility, L.Z.’s irresponsibility is “predatory, which is very serious,” and people with a

“predatory or psychopathic sort of dangerousness . . . simply disregard the rights of others . . . and

they’ll use others like objects.” He further stated that L.Z.’s exhibiting predatory characteristics

caused him to have concerns regarding L.Z.’s ability to parent successfully. Additionally, Dubin

testified that L.Z. has narcissistic personality disorder with obsessive compulsive and anti-social

personality traits, explaining that “psychopathy is considered to be . . . the combination of narcissism

and anti-social characteristics.” He stated that “one of the major characteristics of psychopaths is

glibness and superficial charm, the ability to convince people like [him] or a therapist or the Court

that he’s, in fact a good person when, in fact, that’s not the case” and that “psychopaths are



                                                    10
extraordinarily competent in passing courses and convincing people that they are good at what

they’re trying to convince people they’re good at.” He also related his opinion that L.Z. is more

interested in winning the case than actually having custody of J.Z.

                 Dubin disagreed that L.Z.’s therapist would be in a better position to comment on

L.Z.’s ability to parent because the therapist’s loyalty is to L.Z. while his loyalty is to the truth and

his concern is not for L.Z. but for J.Z. Additionally, he testified that psychopaths “are very

charming, very good at conning and manipulative” and “if a psychopath wanted to bond with a

therapist, they’d be extraordinarily good at it.” Dubin stated that if admitting to wrongdoings would

help L.Z.’s position, he would not be surprised to learn that L.Z. had made such admissions and that

it would be consistent with his diagnosis if L.Z. had begun to admit to wrongdoings after things

started to go poorly for him. Finally, Dubin testified that psychopaths are resistant to therapy and

tend not to make much change, this is the case with L.Z., and he would not feel comfortable

recommending that L.Z. be given custody of J.Z.


The Trial Court’s Ruling

                 After the close of evidence, the trial court determined that L.Z.’s parental rights

should be terminated, finding by clear and convincing evidence that L.Z. had failed to comply with

the family service plan and that termination was in the best interest of J.Z. The trial court appointed

the Department permanent managing conservator of the children. In response to a request by

L.Z., the trial court made findings of fact and conclusions of law. The trial court’s findings of

fact included:




                                                   11
       2.      The Court finds that the Child the subject of this suit has been in the
               Department’s conservatorship since the 13th day of September, 2010. The
               Court finds that the child was removed from [L.Z.] due to concerns of
               neglectful supervision and risk of physical abuse.

       3.      The Court finds that [L.Z.] has failed to demonstrate the ability to alleviate
               the concerns of abuse and/or neglect. The Court finds that [L.Z.] is not
               capable of providing the child with a safe environment.

       4.      The Court finds that [L.Z.] did not complete the court-ordered services and
               other provisions that specifically established the actions necessary for him to
               obtain the return of the children. [L.Z.] failed to attend cognitive education
               classes, failed to maintain stable and suitable housing, did not consistently
               attend AA/NA, was unable to refrain from criminal activity, did not
               consistently visit with his child, demonstrated an inability or unwillingness
               to refrain from drug use, and failed to follow through with the aftercare
               recommendations from his substance abuse treatment program.

       5.      The Court finds that [L.Z.] has significant and extensive history of
               involvement with the Department and of engaging in criminal activity.

       6.      The Court finds that [L.Z.] admitted to a long history of substance abuse and
               has yet to establish a pattern of sobriety.

       7.      The Court finds that, under the totality of the circumstances, termination of
               the parent child relationship between [L.Z.] and the child was in the best
               interest of the child.


                                           ANALYSIS

               To terminate a parent’s rights to a child under section 161.001 of the family code, the

Department must establish that (1) the parent has committed conduct prohibited by section

161.001(1), and (2) termination is in the best interest of the child. See Tex. Fam. Code Ann.

§ 161.001(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Because “‘termination is a drastic

remedy and is of [great] weight and gravity,’” see In re C.H., 89 S.W.3d 17, 23 (Tex. 2002) (quoting

In re G.M., 596 S.W.2d 846, 847 (Tex. 1980)), grounds for termination must be supported by clear

                                                 12
and convincing evidence, Tex. Fam. Code Ann. §§ 161.001, .206(a) (West 2008); In re J.F.C.,

96 S.W.3d 256, 263 (Tex. 2002) (due process requires clear and convincing standard of proof in

parental termination cases). The clear and convincing standard is “‘that measure or degree of proof

which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the

allegations sought to be established.’” In re C.H., 89 S.W.3d at 23 (quoting State v. Addington,

588 S.W.2d 569, 570 (Tex. 1979)); see also Tex. Fam. Code Ann. § 101.007 (West 2008) (defining

clear and convincing evidence).

                L.Z. raises legal and factual sufficiency challenges to the evidence. When reviewing

the legal sufficiency of the evidence to support a termination, we “look at all the evidence in the light

most favorable to the finding to determine whether a reasonable trier of fact could have formed a

firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d at 266. To give

appropriate deference to the factfinder’s conclusions and the role of a reviewing court, we must

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

could do so.” Id. In conducting a factual sufficiency review of the evidence to support a termination

finding, we “must give due consideration to evidence that the factfinder could reasonably have found

to be clear and convincing.” Id. (citing In re C.H., 89 S.W.3d at 25); see also In re H.R.M.,

209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (describing factual sufficiency standard of review in

appeals from termination orders). “If, in light of the entire record, the disputed evidence that a

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

could not reasonably have formed a firm belief or conviction, then the evidence is factually

insufficient.” In re J.F.C., 96 S.W.3d at 266.



                                                   13
Compliance with Family Service Plan

               In his first issue, L.Z. contends that the evidence is legally insufficient to support

termination of his parental rights under section 161.001(1)(O), which provides:


               The court may order termination of the parent-child relationship if the court
       finds by clear and convincing evidence:

       (1)     that the parent

               ...

               (O)    failed to comply with the provisions of a court order that specifically
                      established the actions necessary for the parent to obtain the return of
                      the child who has been in the permanent or temporary managing
                      conservatorship of the Department of Family and Protective Services
                      for not less than nine months as a result of the child’s removal from
                      the parent under Chapter 262 for the abuse or neglect of the child.


Tex. Fam. Code Ann. § 161.001(1)(O). L.Z. advances three arguments in support of his position that

the evidence is legally insufficient. We address each argument in turn.


       Removal for abuse or neglect

               We turn first to L.Z.’s argument that termination under this section was improper

because J.Z. was not removed for “abuse or neglect” but was instead removed based only on

“concerns” of abuse or neglect. The supreme court has not expressly addressed whether removal as

a result of “abuse or neglect” is a required element of proof for termination under section

161.001(1)(O). See In re A.A.A., 265 S.W.3d 507, 514 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied) (discussing In re J.F.C., 96 S.W.3d at 278–79, in which supreme court found conduct

described in 161.001(1)(O) established as matter of law without addressing issue of removal for

                                                14
abuse or neglect). However, a number of our sister courts have held that it is. See, e.g., id. at 515;

In re S.A.P., 169 S.W.3d 685, 705 (Tex. App.—Waco 2005, no pet.); In re H.S.V.,

No. 04-12-00150-CV, 2012 Tex. App. LEXIS 5470, at *9–10 (Tex. App.—San Antonio

July 11, 2012, no pet.) (mem. op.); In re J.T.G., No. 14-10-00972-CV, 2012 Tex. App. LEXIS 430,

at *42 (Tex. App.—Houston [14th Dist.] Jan. 19, 2012, pet. filed) (mem. op.); In re M.B.,

No. 12-04-00350-CV, 2005 Tex. App. LEXIS 9939, at *11 (Tex. App.—Tyler Nov. 30, 2005, no

pet.) (mem. op.). Therefore, as the Dallas Court of Appeals has done, we assume without deciding

that removal for the abuse or neglect of the child is an element under section 161.001(1)(O). See In

re E.S.C., 287 S.W.3d 471, 475 (Tex. App.—Dallas 2009, pet. denied sub nom. Roundtree v. Texas

Dep’t of Family & Protective Servs., No. 09-0653, 2010 Tex. LEXIS 92, at *1 (Tex. App.—Dallas

Jan. 15, 2010)). The determination of whether removal was as a result of abuse or neglect is made

on a case-by-case basis. In re A.A.A., 265 S.W.3d at 515; E.S.C., 287 S.W.3d at 475; In re J.T.G.,

2012 Tex. App. LEXIS 430, at *42.

                Here, the undisputed evidence showed that the Department became involved with

J.Z. because it received two referrals alleging neglectful supervision and physical abuse. The family

service plan, which was admitted as an exhibit at trial, states that the reason for the Department’s

involvement was the referrals and notes that L.Z. had a history of domestic violence and alcohol

abuse. Yupit-Martinez testified that the allegations in the referrals formed the basis of her

investigation and that although she ruled out physical abuse, her disposition of the allegation of

neglectful supervision due to allegations of alcohol abuse and domestic violence was “reason to

believe.” Further, the record contains the trial court’s temporary order following adversary hearing,



                                                 15
which appointed the Department as temporary managing conservator and included the findings

required by section 262.201 of the family code.6

                Viewing the evidence in the light most favorable to an affirmative finding under

section 161.001(1)(O), we conclude that there was legally sufficient evidence presented to allow a

reasonable factfinder to for a firm belief or conviction that J.Z. was removed from L.Z. for “abuse

or neglect.” See In re A.W.B., No. 14-11-00926-CV, 2012 Tex. App. LEXIS 2362, at *5–6 (Tex.

App. —Houston [14th Dist.] Mar. 27, 2012, no pet.) (mem. op.) (finding sufficient evidence of

removal for abuse or neglect where family plan showed case initiated because of referral alleging

physical abuse and trial court made findings pursuant to chapter 262 of family code); In re J.S.G.,

No. 14-08-00754-CV, 2009 Tex. App. LEXIS 3224, at *18–20 (Tex. App.—Houston [14th Dist.]

May 7, 2009, no pet.) (mem. op.) (evidence established removal for abuse or neglect where

department affidavit stated “concerns” including the parent’s criminal history and drug use

and trial court made requisite findings under chapter 262); In re A.C., No. 12-04-00264-CV,

2005 Tex. App. LEXIS 8137, at * 11–12 (Tex. App.—Tyler Sept. 30, 2005, no pet) (mem. op.)

(evidence established removal for neglect where department testified children were removed because

they were believed to be at risk based on report of alleged drug use and lack of appropriate housing

and trial court appointed department temporary managing conservator based, in part, on department


        6
          Section 262.201 requires that following the full adversary hearing, the trial court shall order
the return of the child unless it finds sufficient evidence that there was a danger to the physical health
or safety of the child caused by the person entitled to possession and for the child to remain in the
home is contrary to the welfare of the child; the urgent need for protection required the removal of
the child, and reasonable efforts were made to prevent the child’s removal; and reasonable efforts
have been made to enable the child to return home, but there is a substantial risk of continuing
danger if the child is returned. Tex. Fam. Code Ann. § 262.201(b)(1)–(3) (West Supp. 2011).

                                                   16
affidavit concluding there was “reason to believe” report alleging neglectful supervision and

physical neglect).

               L.Z. contends that In re S.A.P. compels the opposite result. In that case, S.A.P. was

removed shortly after birth, from the hospital, and there was no evidence of abuse or neglect—or

concerns of abuse or neglect—specific to S.A.P. 169 S.W.3d at 689, 706. Rather, the caseworker

“unequivocally testified that S.A.P. was not removed for abuse or neglect by [the parents], that

S.A.P. was not neglected by [the parents], and that S.A.P. was removed only because of

the risk because of [the parents’] prior history” of abuse of their older children. Id. at 705–06.

In this case, there were allegations of neglectful supervision specific to J.Z. by L.Z.

that prompted the Department’s investigation and subsequent removal of J.Z. See In re J.S.G.,

2009 Tex. App. LEXIS 3224, at *20. Thus, we find In re S.A.P. distinguishable and L.Z.’s argument

that we must apply its holding to the facts of this case unpersuasive.


       Substantial compliance with plan

               L.Z. also argues that his parental rights should not have been terminated because he

was “really trying to complete the services” and “substantially completed many of the[] service plan

tasks.” L.Z. offers no authority for his contention that substantial completion can suffice under

section 161.001(1)(O), and we have found no authority to support it. To the contrary, as this Court

observed in Bennett v. Texas Department of Family & Protective Services, “Texas courts have held

that substantial compliance is not sufficient to avoid termination for failure to comply with a service

plan.” No. 03-07-00521-CV, 2008 Tex. App. LEXIS 2420, at *22 (Tex App. —Austin Apr. 3, 2008,

no pet.) (mem. op.) (citing In re T.T., 228 S.W.3d 312, 319 (Tex. App.—Houston [14th Dist.] 2007,

                                                  17
pet. denied) (“Research reveals that substantial completion or substantial compliance is not enough

to avoid a termination finding under this section.”)); see In re M.C.G., 329 S.W.3d 674, 676 (Tex.

App.—Houston [14th Dist.] 2010, pet. denied) (supp. op. on reh’g) (“The Family Code does not

provide for substantial compliance with a family services plan.”); see also In re A.A.F.G.,

No. 04-09-00277-CV, 2009 Tex. App. LEXIS 9688, at *8 (Tex. App.—San Antonio Dec. 23, 2009,

no pet.) (mem. op.) (section 161.001(1)(O) does not quantify number of provisions of service plan

parent must fail to warrant termination or include provision for evaluating partial achievement).

               L.Z. testified that he failed to complete aftercare following outpatient treatment,

cognitive therapy, and a batterers’ intervention program, refrain from criminal activity, and attend

three AA or NA meetings a week. In addition, the evidence consistently supported findings that he

did not provide stable and suitable housing, cooperate with the Department, or regularly visit with

J.Z. Thus, despite L.Z.’s completion of some of the plan’s goals, the evidence establishes that he

did not achieve much of what was required by the plan. Section 161.001(1)(O) “does [not] quantify

the degree of conduct that is deemed a failure as to a particular provision” in the service plan, In re

A.A.F.G., 2009 Tex. App. LEXIS 9688, at *8, nor does it “‘make a provision for excuses’ for a

parent’s failure to comply with the service plan,” In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland

2009, no pet.) (quoting In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet. denied)).

We therefore conclude that, viewed in the light most favorable to an affirmative finding under

section 161.001(1)(O), there was legally sufficient evidence to allow a reasonable factfinder to form

a firm belief or conviction that J.Z. failed to comply with the requirements of the family service plan

as required by section 161.001(1)(O).



                                                  18
        Credibility of S.W.

                L.Z.’s third argument in support of his contention that the evidence does not support

termination under section 161.001(1)(O) is that “much of the testimony that tends to indicate that

the (O) grounds were met came from [S.W.]” and her testimony is “generally not believable” and

“tends to indicate that she could be, and probably is lying or exaggerating about . . . any issue

involving [L.Z.].” S.W. and L.Z. did offer conflicting testimony regarding some behaviors relevant

to L.Z.’s completion of the service plan tasks. However, the trial court is the sole judge of the

credibility of the witnesses and the weight to give their testimony; we must defer to the trial court’s

first-hand assessments of the credibility of the witnesses and conclude that the trial

court’s assessments could have informed its view of the testimony. City of Keller v. Wilson,

168 S.W.3d 802, 819 (Tex. 2005); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.

2000). “The trial court is in the best position to observe the demeanor and personalities of the

witnesses and can ‘feel’ the forces, powers, and influences that cannot be discerned by merely

reading the record.” Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.)

(citing Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ. App.—Dallas 1981, no writ)).

Furthermore, as we have already concluded, even without considering S.W.’s testimony, L.Z.’s own

testimony constituted legally sufficient evidence to support the trial court’s determination that he

failed to complete the service plan tasks. We overrule L.Z.’s first issue.


Best Interest of the Child

                In his second issue, L.Z. contends that the evidence was factually insufficient to

support the trial court’s finding that termination of his parental rights is in J.Z.’s best interest. See

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Tex. Fam. Code Ann. § 161.001(2). The trial court is given wide latitude in determining the best

interest of a minor child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The supreme

court set out a number of factors for a trial court to consider in determining a child’s best interest in

Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). Those factors include the (i) desires of the child,

(ii) emotional and physical needs of and danger to the child now and in the future, (iii) parental

abilities, (iv) plans for the child by the individual or agency seeking custody, (v) programs available

to assist the individual to promote the best interest of the child, (vi) stability of the home, (vii) acts

or omissions of the parent that may indicate that the existing parent-child relationship is not a proper

one, and (viii) any excuse for the acts or omissions of the parent. Id. at 371–72; see also Tex. Fam.

Code Ann. § 263.307 (West 2008) (stating that “prompt and permanent placement of the child in a

safe environment is presumed to be in the child’s best interest” and listing factors that court should

consider “in determining whether the child’s parents are willing and able to provide the child with

a safe environment”). This list of factors is not exhaustive, not all of them are present in every

case, and not all of them need to be proven to determine a child’s best interest. In re C.H.,

89 S.W.3d at 27; Holley, 544 S.W.2d at 372.              Further, evidence presented to satisfy the

predicate statutory ground finding may also be probative of the child’s best interest. In re C.H.,

89 S.W.3d at 28; Pruitt v. Texas Dep’t of Family and Protective Servs., No. 03-10-00089-CV,

2010 Tex. App. LEXIS 10272, at *22–23 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.).

                Most of the Holley factors are implicated in this case. Although J.Z. was too young

to articulate his desires, some courts have considered the quality and extent of the child’s

relationships with the prospective placements. See In re J.M. 156 S.W.3d 696, 706 (Tex.



                                                   20
App.—Dallas 2005, no pet.) (considering evidence that children were bonded to foster family, were

happy in foster home, and enjoyed visitation with father in assessing young children’s desires);

In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied.) (considering

evidence that child was well-cared for by foster family, had bonded with them, and spent minimal

time with parent in assessing toddler’s desires). Here, the evidence showed that J.Z. has spent most

of his life with his foster parents, has bonded with them, considers them to be his parents, is happy,

and is doing well with the foster family. The evidence further shows that while L.Z. appears bonded

and appropriate with J.Z., he had missed a number of visits with J.Z.—approximately half recently.

The only evidence regarding L.Z.’s visitations with J.Z. was that L.Z. seemed appropriate with J.Z.

The record contains no evidence of J.Z.’s relationship with L.Z.’s mother, with whom L.Z. intends

to place J.Z. if he retains his parental rights, or with Sh.W., whom the record indicates the

Department had at one time considered for placement.

                Regarding the remainder of the Holley factors, it is undisputed that the Department

initiated its investigation based on allegations of neglect and physical abuse and found reason to

believe the allegations of neglect. The evidence showed that L.Z. made efforts to comply with the

family service plan, but it was undisputed that he failed to complete a substantial number of required

tasks. It was also undisputed that, because of L.Z.’s history of domestic violence, drug and alcohol

abuse, and criminal activity and his recent relapse, he is not a safe parent for J.Z. and that, despite

his access to counseling programs through the Department, he cannot provide a stable home for J.Z.

and intends for his mother to care for him if he retains his parental rights. Lawrence, L.Z.’s therapist,

agreed that L.Z. was not a safe parent for J.Z., testifying that L.Z. successfully completed a protective



                                                   21
parenting program but was not using the tools he learned. L.Z.’s pastor testified that he believes L.Z.

could be a safe parent with the proper guidance and support system but acknowledged that he has

no education in psychology or drug addiction or treatment. Dubin characterized L.Z. as a psychopath

who is conning, good at bonding with people with whom he needs to bond, and more interested in

winning the case than custody of J.Z. The evidence further showed that the foster family provides

a safe, stable, and caring environment and plans to nurture the needs and interests of J.Z. if allowed

to adopt him. L.Z.’s mother testified that if J.Z. were to live with her, she would work with the

foster family and allow L.Z. and S.W. access only if they were clean and sober. Although

photographs of L.Z.’s mother’s home were admitted into evidence, there was no evidence of her

parenting abilities, home stability, or plans for J.Z. other than as to visitation. The only evidence

as to Sh.W.’s abilities or plans was testimony that she had abused S.W. and displays

emotional behavior.

               In light of the entire record, the trial court reasonably could have credited the

undisputed evidence and testimony of L.Z., the foster father, the Department’s investigator and

caseworker, and L.Z.’s therapist and psychologist, as well as the disputed testimony of S.W., and

could have reasonably formed a firm belief or conviction that termination of L.Z.’s parental rights

was in J.Z.’s best interest. See In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 23. L.Z.

contends that the trial court could not have had a firm conviction that termination was in J.Z.’s best

interest because the court expressed concerns regarding J.Z.’s continued contact with L.Z.’s mother

if he were adopted by the foster family. L.Z. cites no authority for this argument, and we do not find

it persuasive. The record shows that in terminating L.Z.’s parental rights, the trial court expressly



                                                  22
stated that it did not intend to inhibit post-termination contact with J.Z.’s extended family, in

particular with L.Z.’s mother. However, the trial court’s comments regarding the effects of

termination on J.Z.’s contact with L.Z.’s mother have no bearing on its determination that

termination of L.Z.’s parental rights was in the best interest of J.Z. We therefore conclude that there

was factually sufficient evidence to support the trial court’s best interest finding in favor of

termination. See In re H.R.M., 209 S.W.3d at 108; In re J.F.C., 96 S.W.3d at 266. We overrule

L.Z.’s second issue.


                                          CONCLUSION

               Having overruled L.Z.’s issues, we affirm the trial court’s order of termination.



                                               __________________________________________

                                               Melissa Goodwin, Justice

Before Justices Puryear, Henson and Goodwin

Affirmed

Filed: August 23, 2012




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