in the Interest of S.P.M., E.A.T., and C.S.T., Children ( 2014 )


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  •                                       In The
    Court of Appeals
    Seventh District of Texas at Amarillo
    ________________________
    No. 07-13-00282-CV
    ________________________
    IN RE S.P.M., E.A.T. & C.S.T., CHILDREN
    On Appeal from the 287th District Court
    Bailey County, Texas
    Trial Court No. 8411; Honorable Jack Graham, Presiding
    January 21, 2014
    MEMORANDUM OPINION
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
    This is an accelerated appeal wherein Appellants, Alex and Elizabeth, appeal the
    trial court‘s order terminating their parental rights to S.P.M., E.A.T. and C.S.T.1
    Elizabeth asserts (1) the evidence is legally and factually insufficient to terminate her
    parental rights regarding the children and termination is not in their best interest while
    1
    To protect the parents‘ and children‘s privacy, we refer to Appellants by their first names and
    other interested parties by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2013). See
    also TEX. R. APP. P. 9.8(b). Throughout the remainder of this memorandum opinion, provisions of the
    Texas Family Code will be cited as ―section ___‖ and ―§ ___.‖
    Alex asserts (2) termination of his parental rights regarding E.A.T. and C.S.T. is not in
    their best interest.2 We affirm.
    BACKGROUND
    In September 2007, the children were removed from Alex and Elizabeth‘s home
    due to neglectful supervision and domestic violence issues.3 The children were placed
    with relatives.4 After an adversary hearing, the trial court found there was sufficient
    evidence of a continuing danger to the children‘s physical health or safety and
    remaining in the home was contrary to their welfare. Elizabeth and Alex were ordered
    ―to comply with each requirement set out in the Department‘s original, or any amended,
    service plan during the pendency of [the] suit.‖5 Both parents demonstrated partial
    compliance with the service plan in 2007 and 2008.
    After relatives requested the children be removed in March 2009, the trial court
    temporarily returned the children to Elizabeth‘s home with the Department monitoring
    2
    Alex is the father of E.A.T. and C.S.T., but not S.P.M. S.P.M.‘s father‘s parental rights were also
    terminated; however, he does not appeal.
    3
    The Department‘s affidavit in support of their removal indicates Elizabeth had previously been
    instructed not to have contact with Alex due to past investigations of domestic violence in the home.
    R.A., Elizabeth‘s child fathered by someone other than Alex, indicated Elizabeth and Alex fought in the
    home, and, although Elizabeth told Alex to leave, he would not. R.A. also indicated he was scared of
    Alex, Alex spanked him and a younger child had bruises. Elizabeth denied any domestic violence prior to
    living with Alex when she was moving from women‘s shelter to shelter with the children. Alex indicated
    his contact with Elizabeth was less of a hit and more of a shove, denied any recent domestic violence,
    stated he was attending AA meetings, and his last drink was the day before the Department‘s interview.
    See In re E.C.R., 
    402 S.W.3d 239
    , 240-41 (Tex. 2013); In re R.M.S., No. 01-13-00331-CV, 2013 Tex.
    App. LEXIS 12703, at *7-8 (Tex. App.—Houston Oct. 11, 2013, no pet.) (mem. op.) (collected cases cited
    therein).
    4
    At the time of their removal, S.P.M. was four years old, E.A.T. was one year old, and C.S.T. was
    less than one year old.
    5
    Throughout this opinion, the Department for Family and Protective Services will be referred to as
    ―Department.‖
    2
    the placement. In April, the trial court found that the children were in danger from
    physical abuse and neglect and/or risk of further physical abuse and neglect from
    Elizabeth‘s and Alex‘s endangering conduct, acts or failures to act and were again
    removed. Prior to removal, Elizabeth told her caseworker that Alex had hit her and she
    was taking the children to a safe place.              The Department suggested she take the
    children to her aunt‘s home or enter Women‘s Protective Services. She refused and
    subsequently returned with the children to live with Alex. During the thirty-seven days
    the children were under monitored return, S.P.M. had thirteen unexcused absences
    from kindergarten. The children were also unkempt and dirty. C.S.T. had what was
    originally thought to be diaper rash but turned out to be a yeast infection that required
    medical treatment, and S.P.M. complained that Alex rubbed jalapenos in her mouth.
    In a subsequent Permanency Hearing Order, the trial court expressly
    incorporated the permanency plans for the children and service plans for the parents as
    findings of the court and made them part of the court‘s order. The trial court also issued
    an Order for Referral to Alternative Dispute Resolution and noticed trial would
    commence in October 2009.
    Mediation was held resulting in a Rule 11 Agreement.6 In the Agreement, the
    parties agreed the Department would place the children in foster care without
    terminating Alex‘s or Elizabeth‘s parental rights and postpone the upcoming trial.
    Elizabeth and Alex would serve as possessory conservators of their children with
    visitation under the Department‘s direction and they agreed to complete the services
    6
    Because Alex was incarcerated for a parole violation premised on a domestic violence offense,
    Alex‘s attorney represented him during negotiations and signed the Agreement on Alex‘s behalf. Neither
    parent disputes the terms or authenticity of the Agreement or whether the Agreement was incorporated
    into an official court order.
    3
    outlined in the Agreement. Under the Agreement, Elizabeth agreed to complete the
    following services:
    1.     Anger Management – Richard Gatlin – complete by 1/1/2010
    2.     Individual Counseling – Dr. Hoke – weekly
    3.     Update psychological – Dr. Basham – by 3/1/2010
    4.     Parenting as recommended by service provider – at least 12 hours.
    5.     Demonstrate appropriate parenting skills during supervised visits.
    6.     Maintain medication for depression. Sign release of information so
    information can be received from her physician.
    7.     Attend weekly supervised family visits for one hour consistently.
    8.     Attend regular drug test as requested.
    9.     [Elizabeth] will maintain full employment and will provide monthly
    verification of employment.
    10.    [Elizabeth] will maintain safe and stable housing adequate to provide
    for her children.
    11.    [Elizabeth] will pay court ordered child support.
    12.    Follow thru w/ any and all recommendations made by service
    providers and [the Department].
    13.    [Elizabeth] will participate in women‘s group thru Dr. Wilson‘s office.
    [She] will initiate by 1/1/09, and complete by May 30, 2010.
    14.   [Elizabeth] will provide, name, #, address, copy of SS card and DL of
    any person who will be in the children‘s future. This info will be used
    to run criminal and CPS history.
    Under the Agreement, Alex agreed to complete the following services:
    1.  Parenting
    2.  Batterer‘s Intervention and Prevention Program
    3.  Individual Counseling
    4.  Anger Management
    5.  Maintain contact with children; in person or by mail
    6.  Sobriety
    7.  Complete any and all applicable services in jail or prison.
    8.   [Alex] will send verification of any services he completes.
    9.  Upon release [Alex] will demonstrate an ability to maintain safe and
    stable home environment, and stable and verifiable employment.
    10. Pay court ordered child support.
    An Agreed Final Order in Suit Affecting the Parent-child Relationship was
    entered ordering ―that . . . Elizabeth . . . and . . . [Alex] complete services as outlined in
    Rule 11 agreement.‖ In accordance with that order the children were placed in foster
    4
    homes. Prior to, and after, the Agreement, the Department advised Elizabeth that she
    was not to be together with Alex. Although Elizabeth understood she was not to have
    contact with her husband, she did; all the while telling the Department she was not
    having any contact. Prior to unification, it was understood that Elizabeth was to become
    independent and self-supportive so she and the children would not be dependent on
    Alex for their livelihood and care.
    Elizabeth and Alex were also granted supervised visitation. The Department
    described these subsequent visitations as somewhat chaotic. Elizabeth would sit and
    watch the children with little or no interaction, and the children would not listen to her.
    Alex did not attend any visitations.            In September 2010, the Department received
    information Elizabeth was seeing her husband when she represented she was not.
    In a second Agreed Final Order filed October 7, 2010, the trial court reiterated its
    earlier order that Elizabeth and Alex ―complete services as outlined in [their] Rule 11
    agreement.‖7 In December 2010, she moved to Uvalde to live with her husband who
    had been released from incarceration. She ceased attending supervised visitation with
    her children in Lubbock complaining visitation was not practical due to the necessary
    commute. Instead, she contacted them once a week by telephone.8
    In a Second Amended Petition for Termination in Suit Affecting the Parent-Child
    Relationship filed January 17, 2012,9 the Department alleged Elizabeth and Alex
    7
    In the trial court‘s subsequent Placement Review Order(s) through 2012, the trial court ―ordered
    that all previous orders issued by this Court shall continue without modification.‖
    8
    Her husband indicated he would listen in on the conversations.
    9
    The Original Petition was filed November 18, 2010.
    5
    knowingly placed or knowingly allowed the children to remain in conditions or
    surroundings which endangered their physical or emotional well-being; engaged in
    conduct or knowingly placed the children with persons who engaged in conduct that
    endangered their physical or emotional well-being; failed to support the children in
    accordance with [Elizabeth‘s] ability; constructively abandoned the children; and failed
    to comply with the provisions of a court order specifically establishing the actions
    necessary for the parents to obtain the children‘s return.
    In April 2012, the children left foster care and were placed with relatives in
    Uvalde. By year‘s end, the children returned to foster care. The relatives indicated they
    no longer wanted to provide long-term placement or be considered for adoption
    because they could no longer handle C.S.T. and E.A.T. and the children had medical
    problems.
    Following a bench trial held July 30, 2013,10 the trial court issued an order
    terminating Elizabeth‘s and Alex‘s parental rights because they failed to comply with the
    terms of their Rule 11 Agreement and Alex failed to pay child support. This appeal
    followed.
    DISCUSSION
    Elizabeth contends the evidence is insufficient to show that she violated section
    161.001(1)(O) by failing to comply with the terms of her Agreement. She and Alex also
    contend that it is not in the children‘s best interest for their parental rights to be
    10
    S.P.M. was now ten years old in the fourth grade, E.A.T. was seven years old in the second
    grade, and C.S.T. was six years old in the first grade.
    6
    terminated. In support, they assert there have not been any domestic violence issues
    between them since 2009; they are married and have been employed by the same
    employer for seven months; their employer provides them with a residence and
    personal vehicle; they will have the support of family members; and Elizabeth has
    completed many services offered by the Department.                   We first address Elizabeth‘s
    assertion that she complied with the Agreement and next address whether termination
    of both parents‘ parental rights is in the children‘s best interest.11
    I. STANDARD OF REVIEW
    The standard of review in parental rights termination proceedings is clear and
    convincing evidence. In re J.F.C., 
    96 S.W.3d 256
    , 263 (Tex. 2002). ―This heightened
    standard of review is mandated not only by the Family Code, see § 161.001, but also
    the Due Process Clause of the United States Constitution. In re E.N.C., 
    384 S.W.3d 796
    , 802 (Tex. 2012). ―Just as it is imperative for courts to recognize the constitutional
    underpinnings of the parent-child relationship, it is also essential that emotional and
    physical interests of the child not be sacrificed merely to preserve that right.‖ In re C.H.,
    
    89 S.W.3d 17
    , 26 (Tex. 2002). See § 153.001(a)(2) (―The public policy of this state is to
    . . . provide a safe, stable, and nonviolent environment for the child.‖).
    The evidence is clear and convincing when the proof is such that it produces in
    the mind of the trier of fact a firm belief or conviction of the truth of the allegations
    sought to be established by the State. In re 
    C.H., 89 S.W.3d at 25
    . In addition to a
    finding that termination is in the child‘s best interest, a finding of only one ground
    11
    Alex does not contest whether the Department established a statutory ground for termination of
    his parental rights. He only contests whether termination was in the best interest of his children.
    7
    alleged under section 161.001(1) is sufficient to support an order of termination. In re
    
    E.N.C., 384 S.W.3d at 803
    ; In re A.V., 
    113 S.W.3d 355
    , 362 (Tex. 2003).               See §
    161.001(1)-(2).
    ―The distinction between legal and factual sufficiency when the burden of proof is
    clear and convincing evidence may be a fine one in some cases, but there is a
    distinction in how the evidence is reviewed.‖ In re 
    J.F.C., 96 S.W.3d at 266
    . In a
    termination case, we review legal sufficiency of the evidence by considering all of the
    evidence in the light most favorable to the fact finder‘s determination and will uphold a
    finding if a reasonable fact finder could have formed a firm belief or conviction that those
    findings were true. 
    Id. To give
    appropriate deference to the fact finder‘s conclusions,
    we must assume that the jury resolved disputed facts in favor of those findings if it could
    reasonably do so. 
    Id. An appellate
    court should disregard all evidence a reasonable
    fact finder could have disbelieved or found incredible. 
    Id. When reviewing
    the factual sufficiency of the evidence in a parental termination
    case, we view all of the evidence in a neutral light and determine whether a reasonable
    fact finder could form a firm belief or conviction that a given finding was true. In re 
    C.H., 89 S.W.3d at 18-19
    . We assume the fact finder resolved disputed facts in favor of its
    finding if a reasonable fact finder could do so and disregarded evidence that a
    reasonable jury would have disbelieved or found incredible. In re 
    J.F.C., 96 S.W.3d at 266
    .   Evidence is factually insufficient if, in light of the entire record, the disputed
    evidence that a reasonable fact finder could not have credited in favor of the finding is
    so significant that the fact finder could not reasonably have formed a firm belief or
    conviction in that finding. 
    Id. 8 II.
    ELIZABETH – SECTION 161.001(1)(O)
    In order for a court to terminate parental rights under section 161.001(1)(O), the
    trial court must find by clear and convincing evidence that the parent ―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] 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.‖ The burden of complying with a court order is on the parent. In re
    D.N., 
    405 S.W.3d 863
    , 878 (Tex. App.—Amarillo 2013, no pet.) (citing Thompson v.
    Tex. Dep’t of Family & Protective Servs., 
    176 S.W.3d 121
    , 127 (Tex. App.—Houston
    [1st Dist.] 2004, pet. denied), overruled for other reasons, Ruiz v. Tex. Dep’t of Family
    and Protective Servs., 
    212 S.W.3d 804
    , 813 (Tex. App.—Houston [1st Dist.] 2006, no
    pet.)).12
    The Family Code does not excuse a failure to comply in assessing whether a
    violation of section 161.001(1)(O) has occurred; In re M.C.G., 
    329 S.W.3d 674
    , 675-76
    (Tex. App.—Houston [14th Dist.] 2010, pet. denied), or provide for substantial
    compliance with a family services plan. In re I.G., 
    383 S.W.3d 763
    , 771 (Tex. App.—
    Amarillo 2012, no pet.) (collected cases cited therein). ―[T]his Court has consistently
    held that, termination under subsection (O) does not allow for consideration of excuses
    for noncompliance nor does it consider ‗substantial compliance‘ to be same as
    completion.‖ 
    Id. See In
    re J.S., 
    291 S.W.3d 60
    , 67 (Tex. App.—Eastland 2009, no pet.)
    12
    Neither Appellant disputes whether there is a court order specifically establishing the actions
    necessary for their children‘s return, the children were in the Department‘s custody for at least nine
    months or that the children were removed as a result of abuse or neglect.
    9
    (evaluation of whether a parent failed to comply with the provisions of a court-ordered
    plan ―does not encompass an evaluation of a parent‘s partial achievement of plan
    requirements‖). ―Subsection ‗O‘ looks only for a parent‘s failure to comply with a court
    order, without reference to quantity of failure or degree of compliance.‖ In re 
    D.N., 405 S.W.3d at 878
    . 13
    The State‘s evidence at trial establishes that Elizabeth did not fully comply with
    the requirement to attend individual counseling (unexplained gap in counseling of at
    least three months); complete twelve hours of parenting classes (Elizabeth produced
    certificates for eight hours of classes); attend weekly supervised visits with the children
    (no visits for an eighteen month period); maintain full-time employment or provide the
    Department with monthly verification (no verification provided) and maintain medication
    for depression (discontinued medication five years prior to the bench trial).
    Elizabeth testified she met many if not all of the plan‘s goals and provided
    excuses why she did not complete other goals. Because the trial court is the sole judge
    of the credibility of the witnesses and the weight to be given their testimony, we must
    defer to the trial court‘s first-hand assessments of the credibility of witnesses and
    conclude that the trial court‘s assessments could have informed its view of her
    13
    A termination finding under subsection (O) cannot be upheld where there is no court order that
    specifically establishes the actions necessary for the parent to obtain the return of the child. In re
    B.L.R.P., 
    269 S.W.3d 707
    , 709-10 (Tex. App.—Amarillo 2008, no pet.). See In re 
    D.N., 405 S.W.3d at 878
    (―[T]he Department must provide some evidence that the service plan with which the parent must
    comply is incorporated in a court order‖); In re K.F., 
    402 S.W.3d 497
    , 504 (Tex. App.—Houston [14th
    Dist.] 2013, pet. denied). Here the parents‘ Rule 11 Agreement was expressly incorporated in two
    Agreed Final Orders requiring the parents to ―complete services as outlined in the Rule 11 agreement,‖
    and was carried forward in the trial court‘s subsequent Placement Review Order(s) through 2012, i.e.,
    ―ordered that all previous orders issued by this Court shall continue without modification.‖
    10
    testimony. See City of Keller v. Wilson, 
    168 S.W.3d 802
    , 819 (Tex. 2005) (fact finders
    may choose to believe one witness and disbelieve another).
    Despite Elizabeth‘s achievement of some of the Agreement’s goals, the evidence
    clearly establishes that other requirements of the Agreement were not achieved. Her
    inability to attend individual counseling sessions, complete parenting classes, attend
    weekly supervised visits, provide verification of full-time employment and maintain her
    medication for depression are significant deficiencies. The trial court‘s determination
    that Elizabeth failed to comply with requirements of the Agreement is supported by
    legally and factually sufficient evidence. See In re 
    E.C.R., 402 S.W.3d at 244
    , 249; In re
    
    J.F.C., 96 S.W.3d at 277-29
    , 285. See also In re A.T., No. 07-13-00166-CV, 2013 Tex.
    App. LEXIS 12691, at *7-8 (Tex. App.—Amarillo Oct. 10, 2013, no pet.) (mem. op.).
    Accordingly, that portion of Elizabeth‘s first issue related to section 161.001(1)(O) is
    overruled.
    III. ELIZABETH AND ALEX – BEST INTEREST OF THE CHILDREN
    Elizabeth and Alex challenge the sufficiency of the evidence supporting the trial
    court‘s best interest finding. 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), and,
    while there is a strong presumption that keeping a child with a parent is in the child‘s
    best interest, it is also presumed that prompt and permanent placement of the child in a
    safe environment is in the child‘s best interest. In re D.S., 
    333 S.W.3d 379
    , 383 (Tex.
    App.—Amarillo 2011, no pet.).
    11
    In conducting the best interest analysis, we evaluate ―[t]he best interest of the
    child, not the parent.‖ 
    Id. at 384.
    We consider, among other evidence, the Holley
    factors which include:     (1) the child‘s desires; (2) the child‘s present and future
    emotional and physical needs; (3) any present or future emotional and physical danger
    to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs
    available to assist the individuals seeking custody to promote the child‘s best interest;
    (6) the plans for the child by the individuals or agency seeking custody; (7) the stability
    of the home or proposed placement; (8) the parent‘s acts or omissions which may
    indicate that the existing parent-child relationship is improper; and (9) any excuse for
    the parent‘s acts or omissions. Holley v. Adams, 
    544 S.W.2d 367
    , 372 (Tex. 1970).
    These considerations are not exhaustive nor is proof of each a condition precedent to
    termination of the parent-child relationship. In re 
    D.S., 333 S.W.3d at 383-84
    (citing In
    re 
    C.H., 89 S.W.3d at 27
    ).      Other factors not on the list may be considered when
    appropriate and undisputed evidence of just one factor may be sufficient in a particular
    case to support a finding that termination is in the child‘s best interest. In re 
    C.H., 89 S.W.3d at 27
    .
    The evidence supporting the statutory grounds for termination may be used to
    support a finding that the best interest of the children warrants termination of the parent-
    child relationship; 
    id. at 28;
    In re P.E.W., 
    105 S.W.3d 771
    , 779 (Tex. App.—Amarillo
    2003, no pet.), and a best interest analysis may also consider circumstantial evidence,
    subjective factors, and the totality of circumstances as well as the direct evidence. In re
    
    D.S., 333 S.W.3d at 384
    . In addition, a parent‘s future conduct may be measured by his
    12
    or her past conduct in determining whether it is in the child‘s best interest to terminate
    parental rights. 
    Id. Of the
    three children, the Department indicated S.P.M. ―desperately‖ wants to be
    adopted but would still like to see her mother. See In re A.M., 
    385 S.W.3d 74
    , 82 (Tex.
    App.—Waco 2012, pet. denied) (evidence that a child enjoys visits with parent is
    marginally relevant).        There was no evidence of E.A.T.‘s and C.S.T.‘s desires for
    placement. Factor one slightly weighs in favor of termination.
    The children‘s present and future emotional and physical needs will be better met
    if they remain in foster care. All three children are currently receiving weekly individual
    counseling. E.A.T. and C.S.T. suffer from ADHD and are receiving medication. E.A.T.
    has been diagnosed with post-traumatic stress syndrome and receives therapy three
    times weekly. All children have passed their current grade and will be moving up a
    grade in school next year. The Department also indicates there is a high possibility the
    children will be adopted, and there are homes seeking to adopt—pending the outcome
    of the termination proceedings.
    Alex and Elizabeth indicate they have been working the past seven months on a
    ranch.        Elizabeth works part-time making $302 bi-weekly while Alex works full-time
    making $1400 per month.14 The children would live in a three bedroom trailer provided
    by the parents‘ employer. The parents would live in one bedroom, Elizabeth‘s mother
    would live in another and the three children would share a single bedroom. They do not
    have medical insurance and did not indicate how they plan to take care of the children‘s
    14
    Alex also indicates he pays $800 per month child support—possibly for other children he has
    fathered.
    13
    counseling and other medical needs. The children‘s school is forty-five miles away and
    they would either catch a bus at the ranch‘s front gate or Elizabeth‘s mother would drive
    them to school. Given the parents‘ poor performance in the past regarding school
    attendance and their lack of any plan to meet the children‘s emotional or medical needs,
    we find factor two weighs in favor of termination.
    The parents lack any plan to stem the children‘s exposure to possible mental
    and/or physical danger. Alex has completed no services related to anger management
    or domestic violence under the Agreement; Elizabeth has a history of discounting or
    denying domestic violence in the home; and, after working services for more than a
    year, the children were returned to both parents in 2009 only to be removed
    approximately a month later for domestic violence issues. In addition, when the children
    were removed in 2009, S.P.M. had an inordinate amount of absences from
    kindergarten, C.S.T. had a yeast infection that required medical treatment and S.P.M.
    complained that Alex rubbed jalapenos in her mouth. Since 2009, Alex has had no
    physical contact with the children and Elizabeth missed her supervised visitation for
    fifteen months due to the inconvenient commute.
    So long as Alex remains a part of the household while exhibiting a complete lack
    of willingness to alter his violent behavior, Elizabeth discounts or denies domestic
    violence was, or is, a problem in their relationship and she is dependent on Alex for
    living space and support, there is a substantial present and future emotional/physical
    danger to the children if they are placed with their parents. The Department, on the
    other hand, has a viable plan to have the children placed in homes where their
    emotional, educational and medical needs will be met. Further, because of Elizabeth‘s
    14
    poor performance during the thirty-seven days she had to assure S.P.M. attended
    kindergarten in 2009, we lack confidence Elizabeth will assure her children will regularly
    attend school forty-five miles away from the ranch. In addition, while programs may be
    available to assist Alex and Elizabeth with parenting the children, Alex‘s lack of interest
    in performing services and Elizabeth‘s spotty performance provide little assurance they
    will fully participate in any available services. Thus, factors three, four, five and six also
    weigh in favor of termination.
    Because the children have had four different foster placements and two family
    placements since 2007, the stability of their placement weighs heavily in our analysis.
    The children have been in their current placement since December 2012. They are
    doing well in school, receiving counseling and having their medical needs met. Their
    current foster family wants to adopt the children but is awaiting conclusion of these
    proceedings. The Department‘s caseworkers and supervisor are unanimous in their
    recommendation that the children remain placed with their foster family. They believe
    Elizabeth continually puts the children at risk due to her dependency on Alex and lack of
    internalization of what has been taught in the services she has attended.                The
    Department‘s current supervisor, who has been a part of the case since the children‘s
    initial removal in 2007, indicates Elizabeth has had other relationships where she
    reported violence, missed face-to-face visits with her children for fifteen months due to
    an inconvenient commute and has not attended services since she moved to Uvalde in
    December 2010. After her move, Elizabeth oftentimes responded with hostility when
    the Department contacted her. Alex was also incarcerated twice during the proceedings
    and Elizabeth was convicted of filing a false police report. The latest recommendation
    15
    by Dr. Wilbanks, who saw Elizabeth for individual counseling, indicates she did not
    participate in group sessions, blamed the Department for the children‘s removal, and
    failed to submit a final report or internalize anything she learned.
    The evidence showed Alex and Elizabeth have a history of neglecting and
    endangering the children, of exposing them to domestic violence, and of unstable
    housing, employment and relationships. Elizabeth‘s future plans are to include Alex in
    their future lives—a father who has shown no interest in working services and is the
    source of the domestic violence in the household. True, while Elizabeth and Alex have
    obtained employment that allows them to have a home and transportation, ―evidence of
    a recent improvement does not absolve a parent of a history of irresponsible choices.‖
    In re 
    A.M., 385 S.W.3d at 83
    (―The need for permanence is a paramount consideration
    for a child‘s present and future physical emotional needs.‖). Factor seven weighs in
    favor of termination.
    The goal of establishing a stable, permanent home for a child is a compelling
    state interest. Dupree v. Tex. Dep’t of Protective and Regulatory Servs., 
    907 S.W.2d 81
    , 87 (Tex. App.—Dallas 1995, no writ). While we acknowledge there was a conflict in
    the testimony regarding the frequency with which domestic violence occurred in the
    home and there was some testimony that would have allowed the trial court to conclude
    that Alex no longer abused Elizabeth, it is within the province of the fact finder to resolve
    conflicts in the evidence. In re 
    I.G., 383 S.W.3d at 774
    . The failure of Elizabeth and
    Alex to comply with important provisions of their Agreement gives rise to a reasonable
    inference that they may not have the parental abilities to put the best interest of their
    children first. In re J.N., 
    301 S.W.3d 429
    , 434 (Tex. App.—Amarillo 2010, pet. denied).
    16
    While there are programs available to assist them in promoting the children‘s best
    interest, their failure to comply with the trial court‘s order and avail themselves of such
    programs renders the availability of such programs less significant.         
    Id. Given the
    lengthy duration of these proceedings, the children‘s parents have failed to show they
    have been stable enough parents for any prolonged period or that the pattern of
    domestic violence would be discontinued. Given their past performance, the trial court,
    as fact finder, was free to reject their assertions of future stability and having learned
    from their mistakes. See In re 
    A.M., 385 S.W.3d at 83
    . Based on this evidence, the trial
    court was entitled to determine that permanency could only be achieved through
    termination and adoption. Factors eight and nine also weigh in favor of termination.
    Considering all the evidence in relation to the best interest factors in a light most
    favorable to the trial court‘s finding, we conclude a reasonable trier of fact could have
    formed a firm belief or conviction that termination was in the children‘s best interest.
    Moreover, viewing all the evidence in a neutral light, we conclude that the disputed and
    undisputed evidence favoring and disfavoring the finding permits a reasonable finder of
    fact to form a firm belief or conviction that termination is in the children‘s best interest.
    Accordingly, the evidence supporting the court‘s finding that termination of the father‘s
    and mother‘s parental rights was in the children‘s best interest is legally and factually
    sufficient.   The second half of Elizabeth‘s first issue and Alex‘s second issue are
    overruled.
    CONCLUSION
    The trial court‘s judgment is affirmed.
    Patrick A. Pirtle
    Justice
    17