Opinion
NO. 14-17-00651-CV
01-30-2018
IN THE INTEREST OF K.M.R., A CHILD
On Appeal from the 314th District Court Harris County, Texas
Trial Court Cause No. 2016-03438J
MEMORANDUM OPINION
This accelerated appeal arises from a final decree in a suit in which termination of the parent-child relationship was at issue. See Tex. Fam. Code Ann. § 109.002(a-1) (West 2014 & Supp. 2017). The trial court terminated the parental rights of K.R. (Mother) and T.D.B. (Father), respectively, with respect to their son, Kevin, and appointed the Texas Department of Family and Protective Services (the Department) to be Kevin's managing conservator.
We use pseudonyms or initials to refer to the child, parents, and other family members involved in this case. See Tex. Fam. Code Ann. § 109.002(d) ("On the motion of the parties or on the court's own motion, the appellate court in its opinion may identify the parties by fictitious names or by their initials only."); Tex. R. App. P. 9.8(b)(2) (in a case in which the termination of parental rights was at issue, "the court must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor's identity, to the minor's parent or other family member.").
Only Father appeals the judgment. He challenges the sufficiency of the evidence to support termination. We conclude legally and factually sufficient evidence supports the trial court's findings that Father engaged in the conduct described in section 161.001(b)(1)(O) of the Family Code and that termination of his parental rights is in Kevin's best interest. Therefore, we affirm the trial court's judgment.
BACKGROUND
A. Removal
The following facts come from the affidavit of Department investigative caseworker Dawn Davis, admitted into evidence at trial.
The Department received a referral in late May 2016 concerning then-17-month-old Kevin. According to the referral, Mother's aunt, Fay, tried but could not reach Mother about three weeks earlier. Fay went to Mother's home that day to check on Mother and Kevin. The door was unlocked and a window was broken. A neighbor told her Mother had left about twenty minutes before Fay arrived and was walking down the street. Ten minutes later, Fay spotted Mother, who said Kevin was sleeping in the house. The house was reportedly "filthy" with dirty clothes and diapers. Mother allowed Fay to take Kevin. Two weeks later, though, Mother demanded that Fay return Kevin to her. The reporter described Mother as delusional, noting she walked around naked and talked to dead people.
Davis interviewed Mother. Based on Mother's slurred speech, delay in answering questions, repetitive statements, and inability to remember what she just said, Davis believed Mother to be under the influence of drugs. Mother admitted to using PCP a few days earlier and smoking marijuana that day, but she refused to participate in a drug assessment. When asked about leaving Kevin in the house alone, Mother said she left him, sleeping, "just for a minute" to take out the garbage.
Based on Mother's history of substance abuse and her erratic behavior, the Department asked Mother to agree to a parental child safety placement for Kevin. She did, and Kevin was placed with Fay.
The Department filed this suit for protection two weeks later. Following a full adversary hearing, the trial court made several findings, including:
• Sufficient evidence exists to satisfy a person of ordinary prudence and caution that there is a continuing danger to Kevin's physical health or safety, and allowing Kevin to remain in Mother's home is contrary to his welfare; andBased on those findings, the trial court ordered Kevin to be removed from Mother's care and named the Department as his temporary managing conservator.
• The Department made reasonable efforts consistent with Kevin's health and safety to prevent or eliminate the need to remove Kevin from and to make it possible for him to return to Mother's home, but continuation in that home would be contrary to Kevin's welfare.
B. The search for Father
Father is not named in the original petition. Because the Department did not know the identity of Kevin's father, the petition said the Department would make a diligent effort to identify that man and effect service of process if his identity became known.
In September 2016, three months after filing this suit, the Department filed its first amended petition naming Father as Kevin's alleged father. A DNA analysis conducted later that month led the analyst to calculate the probability of Father's paternity of Kevin to be 99.99%. A search of the Texas paternity registry conducted in early November 2016 revealed that no notice of intent to claim paternity had been filed with respect to Kevin. On November 15, 2016, the trial court signed an interlocutory order adjudicating Father to be Kevin's biological father.
C. Family service plan
The trial court signed an order adopting Father's service plan as an order of the court. The service plan identified the tasks and services he needed to complete before Kevin could be returned to his care.
The court also ordered Mother to comply with any family service plan by the Department. Because Mother is not a party on appeal, we do not discuss her plan.
Father's service plan, which he signed to indicate he understood its requirements, noted the Department's concern that Father, by his admission, was aware of Mother's drug use. The goal stated in the service plan was family reunification, with a concurrent goal of relative adoption.
The service plan required Father to, among other things:
1. complete therapy and follow the therapist's recommendations;
2. attend all court hearings and permanency conference meetings;
3. maintain at least weekly contact with the caseworker;
4. attend scheduled visitations with Kevin;
5. refrain from engaging in criminal activity, and notify the caseworker within 24 hours of any arrests or pending criminal charges;
6. obtain and maintain, for more than six months, legal employment and income and provide suitable documentation to the caseworker of such employment and income;
7. obtain and maintain, for more than six months, housing that is "stable, safe, clean, and free of hazards" and provide the caseworker with a copy of the rental or ownership documents;
8. submit to random drug testing and test negative at all times;
9. complete a substance abuse assessment and follow the assessor's recommendations;
10. complete a psychosocial evaluation and follow the evaluator's recommendations; and
11. participate in and complete a parenting course.
D. Trial
Trial was held in May 2017. The Department presented testimony from two witnesses: caseworker Gabrielle Bland and Father. The Department's documentary evidence included the order adjudicating Father's paternity of Kevin, caseworker Davis's removal affidavit, Father's service plan and the court order requiring his compliance with the plan, Father's drug test results, judgments of Father's criminal convictions, and the Department's permanency report filed a month before trial.
Father did not call witnesses. His documentary evidence consisted of a certificate of attendance for a parenting class, certificate of completion of individual counseling, results of a drug test, and fifteen weeks' worth of pay stubs.
The trial court admitted Mother's irrevocable affidavit of voluntary relinquishment of her parental rights to Kevin, which she signed in January 2017. Mother did not attend trial personally.
Kevin's attorney ad litem did not call witnesses or offer evidence.
1. Evidence about Father
a. Father's many children
Father has numerous children. He testified he has thirteen children from five women. According to Bland, the Department suspects he has approximately twenty children. Bland said "a great many" of those children either were or currently are in the Department's care. Father is obligated by court order to pay child support, but the record does not reflect how many children he must support or how much he is required to pay.
Father testified he never lived with Mother and did not know she became pregnant with Kevin. He said he last saw her when Kevin was "about one." He said he did not know Kevin existed until the Department notified him in the fall of 2016, when Kevin was approximately one year and nine months old. It is unclear whether Father last saw Mother before or after this case began.
Of his thirteen children, Father stated he raised only one, T.D.B., Jr., and only until that child was seven years old. Father offered the following insight into his attitude toward parenting:
I have lived on my own since I was 17. I had numerous of [sic] women that came in and out of my life. I don't like to argue and fight with them, so when they cheated on me or something like that, the relationship was over with. So I mean, you know, I just be there for my kids.Later in his testimony, Father blamed the "bad mothers" for the fact that none of his children live with him:
I been dealing with CPS since 1994. The kids been given back to their parents, given back to the mother. And after that, it's that they get these new boyfriends, and you know, I don't need no problems. I just stay to myself.
Q. Now you understand it's a concern if you have 13 children that you do not have in your home currently, correct?
. . .
A. Yes.
Q. Now what's your explanation? You just pick bad mothers?
A. I think so.
Q. Or do they just turn into bad mothers?
A. I guess. They just, one minute, they good and then next minute they just turn. I don't know what's going on with them. I mean, you know, kids need their mother and their father in their lives. I mean I had mine. I had my mother and my father. My mother and father was married but I just can't seem to find the right woman to marry. I mean, I really do want to get married.He also attributed the Department's request to terminate his parental rights to what he characterized as its incorrect belief that he was homeless.
b. Service plan
Fulfilled requirements. Father completed many of his service plan's requirements. He attended each of fourteen scheduled visits with Kevin. According to Bland, Father always acted appropriately during the visits. He was cooperative with Bland and maintained regular communication with her throughout the case, keeping her informed of his progress in satisfying his service plan. He completed parenting classes and individual therapy.
A few months before he was served with process, Father underwent a substance abuse assessment in a Department case involving another child of his. That assessment was deemed to satisfy his corresponding requirement in this case. Because he was diagnosed with alcohol use disorder in that assessment, Father was required to, and did, complete substance abuse treatment early in this case.
Unfulfilled requirements. Bland testified Father failed to comply with two aspects of his service plan: maintaining, for more than six months, (1) stable employment and (2) stable housing.
Bland said Father gave her only one paystub, which reflected he was paid around $30 for a week, and one letter stating he received "a very low amount, not enough to live on" in disability benefits. Father testified he received $432 per month in disability benefits and had provided documentation of that fact to Bland. Father also offered into evidence paystubs for fifteen consecutive weeks—from February 3, 2017 until a week before trial. His total net pay for that period was just under $3,800, which averages to roughly $253 per week. He did not dispute that he failed to give those paystubs to Bland.
Father did not provide proof of safe and stable housing. According to Bland, he "changed to a couple of addresses" while the case was pending, most recently five days before trial. He did not own or lease a home but rather lived with his sister off and on throughout the case. He was living with his sister at the time of trial.
Bland testified that when she made an unannounced visit to the sister's house, a young man who turned out to be Father's nephew was there. Bland sought but was unable to obtain more information about him:
[The nephew] appeared to be under the influence of something. He was in the home — the home smelled very strongly of cigarettes and there was a container of cigarette butts and he was smoking cigarettes in the home.Without identifying information about the nephew, Bland was unable to conduct a background check or investigate him.
. . .
And the nephew appeared agitated and was smoking cigarettes. They got in an argument and his — just by his appearance, his pants were undone and he just seemed like he was not in a state of mind. And I asked who he was and there was some obvious — she didn't want to reveal who he was and have me do a check, and was like he doesn't live here . . . .
Father said his sister's home was appropriate: "Everything in the home is brand new. Brand new couches, brand new beds. I mean, I don't see what was wrong with it." When asked about his nephew and why he was smoking cigarettes in the home, Father answered, "That, I don't know. I could get the 411 with that. She don't like anybody smoking in her house."
c. Criminal history
The record contains judgments of convictions for Father dating back to 1993. That year, he was convicted of unlawful possession of weapons and driving while his driver's license was suspended. He was convicted three more times for driving with a suspended license: in 1997, 2006, and 2007.
The Department's final permanency report noted its concern with Father's alleged conviction in 2005 for possession of a controlled substance. The record does not reflect whether Father was convicted for that offense. The only evidence regarding that crime is an indictment.
Father pleaded guilty to violent crimes in 2009 and 2011: (1) deadly conduct, reduced from aggravated assault as part of a plea-bargain agreement; and (2) assault of a woman with whom he had a dating relationship. He was sentenced to confinement for 200 days and sixty days in county jail, respectively.
More recently, Father was twice convicted of criminal trespass: in 2014 and again in April 2016, about five months before he appeared in this case. Father testified at least one of those convictions was due to a misunderstanding. When he was homeless, he said, an apartment manager permitted Father to stay in a small apartment. The security guard for the apartment complex did not know about the arrangement, though, so he called the police, and Father was arrested for trespassing.
d. Drug use
Father has a history of substance abuse. He tested positive for cocaine twice before this case began: once in October 2014 and again in December 2015. He also tested positive for marijuana in December 2015. At trial, he asserted the October 2014 test results were wrong because he did not use cocaine.
When he appeared in this case on September 20, 2016, Father tested positive for alcohol. He failed to appear for his next mandatory test, in October 2016, and also failed to appear for his final test, in April 2017. Those failures are considered positive results under his service plan. Father contended he did appear for the April 2017 test, but was prevented from completing the test: "I needed the papers from the Court to take the drug test. They wouldn't give it to me. I went there, without a doubt, I did go there to take the drug test."
On November 15, 2016, after he completed a drug treatment program, Father's hair follicle tested positive for marijuana, but his urine tested negative. The parties appeared to agree at trial that this result indicated Father had been exposed to marijuana but had not ingested or inhaled it.
Father tested negative for the next eight drug tests, from late November 2016 through the end of March 2017.
e. Willingness to provide for Kevin
Father concluded his testimony with a plea to the trial court not to terminate his parental rights:
Your Honor, I really do love my kids. I always been there for my kids since 1994. No matter what, me and the mothers go through, anything like that, I'm here for my kids. I always have been. You can look through CPS and see that I've been looking — I've been dealing with CPS since 1994. I mean I just — I be here. I done everything CPS asked me to do. I always have. I never, never sit up and act like I didn't want to do anything for CPS. Been come down to my kids, I always have done for my kids.
So please don't terminate my rights. I'm here. I'm here. I'm here for [Kevin] and I'm here for all my other kids like I always have been.
2. Evidence about Kevin
Other than the statements in Davis's removal affidavit, there is no information in the record about Kevin's condition before or at the time of removal.
The Department's permanency report included a glowing review of Kevin and his life with Fay, the maternal great aunt with whom he had lived for a year:
[Kevin] is a happy one year old boy with lots of energy. He is placed with his relatives and enjoys interacting with his family. He is starting to talk. The caregiver is working on potty training. [Kevin] has a strong bond with everyone in the family. He is highly social and enjoys interacting with the children at his school.
[Kevin] is developmentally on target for [his] age. [Kevin] attends daycare where he is able to socialize with his peers.
Bland believed Fay was meeting Kevin's needs and her home was a good one for Kevin. She testified:
The current home, they have been in their home since the beginning of this case. I have been witness to the children who she is currently raising and they are very well behaved children. It is very calm in the home. I have not — she's been very cooperative. She is currently getting licensed and should be licensed as a foster home soon. And I have had no concerns. She's met all of the needs of the child, medical, dental needs and appears to be — have a lot of knowledge about raising the child his age.Bland further testified that Fay and Kevin were bonded with each other. She had no doubt Fay and her family would care for Kevin for the rest of his childhood.
3. Trial court's findings
The trial court found that Mother and Father engaged in the conduct described in certain subsections of section 161.001(b)(1) of the Family Code: (1) subsection K for Mother (signed an irrevocable affidavit of relinquishment), and (2) subsections E and O for Father (endangered Kevin and failed to comply with the requirements of his court-ordered service plan). The court additionally found termination of Mother's and Father's parental rights was in Kevin's best interest. The trial court appointed the Department to be Kevin's managing conservator. Father timely appealed.
ANALYSIS
Parental rights can be terminated upon clear and convincing evidence that (1) the parent committed an act described in section 161.001(b)(1) of the Family Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp. 2017); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Only one predicate finding under section 161.001(b)(1) is necessary to support a decree of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Father raises four issues on appeal, all of which challenge the legal and factual sufficiency of the evidence to support the trial court's findings. Issues 1 and 2 concern the findings under subsections E and O, respectively; issue 3 concerns the best-interest finding; and issue 4 concerns the appointment of the Department as Kevin's managing conservator.
I. Burden of proof and standards of review
Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980); In re S.R., 452 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Although parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) ("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.").
Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (West 2014); accord J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review. S.R., 452 S.W.3d at 358.
In reviewing the legal sufficiency of the evidence in a termination case, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. See J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. We assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence a reasonable fact finder could disbelieve. J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266.
In reviewing the factual sufficiency of the evidence, we consider all the evidence, including disputed or conflicting evidence. J.O.A., 283 S.W.3d at 345. "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 a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." J.F.C., 96 S.W.3d at 266. We give due deference to the fact finder's findings, and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). The fact finder is the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109. We are not to "second-guess the trial court's resolution of a factual dispute by relying on evidence that is either disputed, or that the court could easily have rejected as not credible." In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
II. Predicate ground for termination: Failure to comply with service plan
Father challenges the legal and factual sufficiency of the evidence to support the trial court's findings regarding subsections E and O of section 161.001(b)(1) of the Family Code. We conclude the evidence is legally and factually sufficient to support the predicate finding under subsection O. Accordingly, we do not review the finding regarding subsection E. See A.V., 113 S.W.3d at 362.
A. Legal standards
Subsection O authorizes termination of the parent-child relationship if the trial court finds, by clear and convincing evidence, that a parent has:
failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.Tex. Fam. Code Ann. § 161.001(b)(1)(O).
B. Application
We structure our analysis according to the three requirements of subsection O: (1) the parent failed to comply with a court order specifically establishing what the parent must do for the child to be returned to the parent, (2) the child has been in the Department's conservatorship for at least nine months, and (3) the child was removed under Chapter 262 of the Family Code for abuse or neglect.
1. Unchallenged findings: Department conservatorship for at least nine months, removal for abuse or neglect
We begin with what is not in dispute. Father does not challenge the trial court's findings that Kevin was in the Department's conservatorship for at least nine months or that Kevin was removed under Chapter 262 for abuse or neglect. These unchallenged findings are binding on us "unless the contrary is established as a matter of law, or if there is no evidence to support the finding." McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); see In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (unchallenged findings of fact supported termination under subsection O because record supported those findings). The record supports each finding.
Department conservatorship. The trial court named the Department as Kevin's temporary managing conservator on June 21, 2016. Trial was held nearly eleven months later, on May 11, 2017.
Removal for abuse or neglect. The trial court's decision to permit the Department to remove Kevin was based at least in part on Davis's removal affidavit. See E.C.R., 402 S.W.3d at 248 (noting that pretrial removal affidavit, "even if not evidence for all purposes, shows what the trial court relied on in determining whether removal was justified"). The affidavit stated that Mother left 17-month-old Kevin alone in a house with an unlocked door and broken window. Based on her interview of Mother, Davis believed Mother was on drugs and unable to care for Kevin. The trial court found sufficient evidence to satisfy a person of ordinary prudence and caution that (1) there was a continuing danger to Kevin's physical health or safety, and (2) allowing Kevin to remain in Mother's home was contrary to his welfare. The evidence and findings establish Kevin was removed from Mother under Chapter 262 for abuse or neglect. Id. at 248-49; In re I.L.G., 531 S.W.3d 346, 353 (Tex. App.—Houston [14th Dist.] 2017, pet. filed).
It is immaterial to the subsection O analysis that Kevin was removed due to abuse or neglect by Mother, not Father. In re S.N., 287 S.W.3d 183, 188 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ("[W]e conclude that subsection (O) does not require that the parent who failed to comply with a court order be the same parent whose abuse or neglect of the child warranted the child's removal.").
2. Challenged finding: Failure to comply with court-ordered family service plan
Father challenges only one part of this finding: that he failed to comply with the service plan. He does not dispute that the service plan was an order of the court or that it specifically established the actions necessary for Kevin to be returned to his care. As above, we begin with those unchallenged findings.
Court order. Father's service plan was adopted as a court order. The trial court's August 15, 2016 order states in relevant part:
Earlier in the same order, the trial court found Father had not reviewed or signed the service plan and did not understand the consequences of his failure to comply with the service plan. On September 19, 2016, however, Father signed the service plan, acknowledging he understood his rights and responsibilities under the plan.
IT IS ORDERED that, except as specifically modified by this order or any subsequent order, the plans of service for [Mother] AND [Father] filed with the Court, and incorporated by reference as if the same were copied verbatim in this order, is [sic] APPROVED and made an ORDER of this Court.
Established actions necessary for Kevin to be returned. As set out above, Father's service plan enumerated eleven sets of tasks he needed to complete. The plan also stated in relevant part:
TO THE PARENT: THIS IS A VERY IMPORTANT DOCUMENT. ITS PURPOSE IS TO HELP YOU PROVIDE YOUR CHILD WITH A SAFE ENVIRONMENT WITHIN THE REASONABLE PERIOD SPECIFIED IN THE PLAN. IF YOU ARE UNWILLING OR UNABLE TO PROVIDE YOUR CHILD WITH A SAFE ENVIRONMENT, YOUR PARENTAL AND CUSTODIAL DUTIES AND RIGHTS MAY BE RESTRICTED OR TERMINATED OR YOUR CHILD MAY NOT BE RETURNED TO YOU.Father signed the page on which that language was printed. This service plan "specifically established the actions necessary for the parent to obtain the return of the child. . . ." Tex. Fam. Code Ann. § 161.001(b)(1)(O).
Failure to comply. The evidence shows Father failed to maintain safe and stable housing for more than six months or provide sufficient documentation of such housing. He made his home at least some of the time at his sister's house. He did not provide proof that, for example, he rented a room from his sister or was otherwise legally entitled to remain in the house. Further, there was evidence that his sister's house was unsafe due to the presence of Father's nephew, who appeared to be under the influence of drugs and whom nobody would identify.
Likewise, the evidence shows Father did not maintain stable employment for more than six months and did not provide paystubs to demonstrate that employment. The paystubs he offered at trial establish employment for only fifteen weeks. Bland testified he gave her only one paystub and a letter showing he receives "a very low amount, not enough to live on" in disability benefits.
On appeal, Father emphasizes the parts of the plan he did complete, contending "his accomplishments cannot be minimized." Under the version of section 161.001(b)(1)(O) applicable to this case, substantial compliance with the service plan does not excuse a parent's failure to complete the plan. In re M.C.G., 329 S.W.3d 674, 676 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). In any event, his accomplishments do not negate his failures.
Section 161.001(d), effective September 1, 2017, establishes a defense to subsection O. See Tex. Fam. Code Ann. § 161.001(d) (West Supp. 2017). That defense provides that a trial court may not terminate the parent-child relationship under subsection O if the parent proves by a preponderance of the evidence that: (1) the parent was unable to comply with specific provisions of the court order, and (2) the parent made a good faith effort to comply with the order and the failure to comply with the order is not attributable to any fault of the parent. Id.
3. Conclusion on failure to comply with service plan
The evidence supports a finding that all the requirements of subsection O have been satisfied. Considering all the evidence in the light most favorable to that finding, we conclude the trial court reasonably could have formed a firm belief or conviction that Father engaged in conduct described in subsection O. Further, in light of the entire record, we conclude the disputed evidence the trial court could not reasonably have credited in favor of its finding under subsection O is not so significant that the court could not reasonably have formed a firm belief or conviction that Father failed to comply with his service plan. Accordingly, the evidence is legally and factually sufficient to support the trial court's finding under subsection O. We overrule Father's first and second issues.
III. Best interest
Father's third issue challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of his parental rights is in Kevin's best interest.
A. Legal standards
Termination must be in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(2). Texas courts presume keeping a child with the child's natural parent serves the child's best interest. In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The Department carries the burden of rebutting that presumption. Id. Prompt, permanent placement of the child in a safe environment is also presumed to be in the child's best interest. Id. § 263.307(a) (West 2014 & Supp. 2016).
Courts may consider the following non-exclusive factors, known as the Holley factors, in reviewing the sufficiency of the evidence to support the best-interest finding: the desires of the child; the physical and emotional needs of the child now and in the future; the physical and emotional danger to the child now and in the future; the parental abilities of the persons seeking custody; the programs available to assist those persons seeking custody in promoting the best interest of the child; the plans for the child by the individuals or agency seeking custody; the stability of the home or proposed placement; acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate; and any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). As noted, this list of factors is not exhaustive, and evidence is not required on all the factors to support a finding that termination is in the child's best interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The Family Code also sets out factors to be considered in evaluating a parent's willingness and ability to provide the child with a safe environment. See Tex. Fam. Code Ann. § 263.307(b). Finally, proof of acts or omissions under section 161.001(b)(1) affect the child's best interest. See In re S.R., 452 S.W.3d at 366.
B. Application
1. Kevin's needs and desires
When a child is too young to express his desires, the fact finder may consider that the child has bonded with the foster family, is well cared for by them, and has spent minimal time with a parent. L.G.R., 498 S.W.3d at 205; In re J.D., 436 S.W.3d 105, 118 (Tex. App.-Houston [14th Dist.] 2014, no pet.).
The undisputed evidence shows that Kevin, who was two and a half years old at the time of trial, was bonded with Fay and her family and was happy. He was developmentally on target and attended daycare, where he enjoyed playing with his friends. He was beginning to talk, and Fay was working on potty training with him.
The record does not reflect any special or heightened needs of Kevin. Bland testified Fay was meeting all his needs.
2. Stability of proposed placement
The stability of the proposed home environment is an important consideration in determining whether termination of parental rights is in a child's best interest. In re J.E.M.M., 532 S.W.3d 874, 889 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
According to Bland, Fay has provided and can provide Kevin a stable home life. Bland described Fay's home as calm and her children as well-behaved. Fay seemed to "have a lot of knowledge" about raising children Kevin's age. She was working to obtain her foster license. Bland had "no concerns" with Kevin's placement with Fay.
3. Father
a. Failure to complete service plan
Evidence supporting termination under the grounds listed in section 161.001(b)(1) can be considered in support of a finding that termination is in the child's best interest. See C.H., 89 S.W.3d at 27 (holding the same evidence may be probative of both section 161.001(b)(1) grounds and best interest). Accordingly, the evidence of Father's failure to complete the requirements of his service plan, discussed above, is relevant to the best-interest analysis.
Though not relevant to the analysis under subsection O, Father's achievements on his service plan may be considered in the best-interest analysis. He attended all scheduled visits and always acted appropriately during his time with Kevin. Cooperative with Bland, Father stayed in regular contact with her and kept her informed of his progress in satisfying his service plan. He finished his parenting classes and individual therapy. Father submitted to a substance abuse assessment and completed substance abuse treatment on the assessor's recommendation.
b. Endangering conduct
"To endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); S.R., 452 S.W.3d at 360. "Conduct" includes acts and failures to act. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Although endangerment often involves physical endangerment, the conduct need not be directed at a child, and the child need not actually suffer injury. Rather, the specific danger to the child's well-being may be inferred from the parent's misconduct alone. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.—Fort Worth 2004, pet. denied). A parent's conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. In re A.B., 412 S.W.3d 588, 599 (Tex. App.—Fort Worth 2013), aff'd, 437 S.W.3d 498 (Tex. 2014). "A father's conduct before paternity is established may be considered as evidence of an endangering course of conduct." In re U.P., 105 S.W.3d 222, 244 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (considering father's drug abuse and criminal history, including drug-related convictions, that occurred before adjudication of paternity in finding sufficient evidence of endangerment); In re A.R.M., No. 14-13-01039-CV, 2014 WL 1390285, at *7 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) (same).
Drug use. A parent's continuing substance abuse can qualify as a voluntary, deliberate, and conscious course of conduct endangering the child's well-being. See J.O.A., 283 S.W.3d at 345; In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); S.R., 452 S.W.3d at 361-62. By using drugs, the parent exposes the child to the possibility the parent may be impaired or imprisoned and, therefore, unable to take care of the child. See Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Continued illegal drug use after a child's removal is conduct that jeopardizes parental rights and may be considered as establishing an endangering course of conduct. Cervantes-Peterson v. Tex. Dep't of Family & Protective Servs., 221 S.W.3d 244, 253-54 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (en banc).
Father consistently tested negative for drugs over the course of more than four months. The record reflects six positive drug test results as well, though: twice before this case began and four times after (including two failures to appear). Father disputed the first positive result, contending he did not use drugs at that time. We are not to "second-guess the trial court's resolution of a factual dispute by relying on evidence that is either disputed, or that the court could easily have rejected as not credible." L.M.I., 119 S.W.3d at 712. As sole arbiter of credibility and demeanor, the trial court was free to credit positive test results over Father's denial of cocaine use. S.R., 452 S.W.3d at 365; H.R.M., 209 S.W.3d at 108-09.
Criminal activity. Evidence of criminal conduct, convictions, or imprisonment is relevant to a review of whether a parent engaged in a course of conduct that endangered the well-being of the child. S.R., 452 S.W.3d at 360-61; A.S. v. Tex. Dep't of Family & Protective Servs., 394 S.W.3d 703, 712-13 (Tex. App.—El Paso 2012, no pet.). Imprisonment alone does not constitute an endangering course of conduct but is a fact properly considered on the endangerment issue. Boyd, 727 S.W.2d at 533-34. Routinely subjecting a child to the probability that the child will be left alone because the child's parent is in jail endangers the child's physical and emotional well-being. In re S.M., 389 S.W.3d 483, 492 (Tex. App.—El Paso 2012, no pet.).
The record contains judgments of convictions spanning half of Father's forty-eight years. In 1993, he was convicted of unlawful possession of weapons. He has four convictions over the course of fourteen years for driving with a suspended license. He pleaded guilty in 2009 and 2011 to two violent crimes, including assault of a woman he was dating. More recently, Father was convicted of criminal trespass in 2014 and again in April 2016.
c. Willingness and ability to parent
A person's past performance as a parent is relevant to an evaluation of the person's willingness and ability to provide for the child at issue. See C.H., 89 S.W.3d at 28; In re S.P., 509 S.W.3d 552, 558 (Tex. App.—El Paso 2016, no pet.) (evidence of parent's past neglect or inability to care for child is relevant to best-interest analysis); In re A.J.-A., No. 14-16-00070-CV, 2016 WL 1660858, at *6 (Tex. App.—Houston [14th Dist.] Apr. 26, 2016, no pet.) (mem. op.) ("We also may consider a parent's past performance as a parent in evaluating the parent's fitness to provide for the Child and the trial court's determination that termination would be in the Child's best interest.").
Father testified he has thirteen children. The Department believed he actually has upwards of twenty. He did not know Kevin existed until Kevin was almost two years old. The record does not reflect when Father discovered the existence of his other children. By his admission, Father "raised" just one of his children, and only until that child was seven years old.
Father said he has been "dealing with" the Department since 1994, when he was roughly twenty-five years old. He was still dealing with them at forty-eight. Bland confirmed "a great number" of Father's children have been or are in the Department's conservatorship. Father urged the trial court to consider his twenty-three-year history with the Department as an asset, contending he always complied with the Department's requirements because he loves his children. The trial court was free to disregard Father's self-serving testimony. S.R., 452 S.W.3d at 365; H.R.M., 209 S.W.3d at 108-09. Even if the trial court considered Father's statements, the evidence supports a finding that Father is unwilling to act as a parent to his children.
4. Conclusion on best interest
Considering all the evidence in the light most favorable to the best-interest finding, we conclude the trial court reasonably could have formed a firm belief or conviction that termination of Father's parental rights was in Kevin's best interest. Further, in light of the entire record, we conclude the evidence the trial court could not reasonably have credited in favor of termination is not so significant as to prevent the court from reasonably forming a firm belief or conviction that termination of Father's rights was in Kevin's best interest. Accordingly, the evidence is legally and factually sufficient to support the trial court's best-interest finding. We overrule Father's third issue.
IV. Managing conservatorship
In his fourth issue, Father contends trial court erred in naming the Department as Kevin's managing conservator. We review a trial court's appointment of a non-parent as sole managing conservator for abuse of discretion and reverse only if we determine the appointment is arbitrary or unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007).
A parent shall be named a child's managing conservator unless, as relevant here, the court finds that such appointment would significantly impair the child's physical health or emotional development. See Tex. Fam. Code § 153.131(a) (West 2014). The trial court made this finding, and it also found appointing the Department as managing conservator was in Kevin's best interest.
When the parents' rights are terminated, as here, section 161.207 of the Family Code, not section 153.131, controls appointment of a managing conservator. See I.L.G., 531 S.W.3d at 356-57. Section 161.207 states:
If the court terminates the parent-child relationship with respect to both parents or to the only living parent, the court shall appoint a suitable, competent adult, the Department of Family and Protective Services, or a licensed child-placing agency as managing conservator of the child.Tex. Fam. Code § 161.207(a) (West 2014 & Supp. 2017) (emphasis added). The appointment may be considered a "consequence of the termination." L.G.R., 498 S.W.3d at 207.
Because the trial court terminated both parents' rights, its conservatorship decision in this case was governed by section 161.207, not section 153.131. See I.L.G., 531 S.W.3d at 357; In re L.G.R., 498 S.W.3d 195, 207 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Accordingly, the trial court was required to appoint the Department or another permissible adult or agency as Kevin's managing conservator. See Tex. Fam. Code Ann. § 161.207.
Father offers no argument as to how the trial court abused its discretion in naming the Department, rather than another permissible adult or agency, to be Kevin's managing conservator. Instead, Father contends the evidence is legally and factually insufficient to support the trial court's finding that appointment of the Department as managing conservator is in Kevin's best interest. But our review of a conservatorship decision is for abuse of discretion only, not for evidentiary sufficiency. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (noting termination finding is reviewed for legal and factual sufficiency, but conservatorship finding is reviewed for only abuse of discretion). We cannot say the trial court's decision to appoint the Department, an agency statutorily identified as an eligible managing conservator, was arbitrary or unreasonable. See id.
We overrule Father's fourth issue.
CONCLUSION
We affirm the trial court's judgment.
/s/ J. Brett Busby
Justice Panel consists of Chief Justice Frost and Justices Busby and Wise.