Affirmed and Memorandum Opinion filed April 16, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00948-CV

                    IN THE INTEREST OF T.M., A CHILD


                    On Appeal from the 306th District Court
                           Galveston County, Texas
                      Trial Court Cause No. 13-CP-0062

                 MEMORANDUM                      OPINION


      A jury found that a father’s parental rights to his child should be terminated
based on one or more of the Family Code’s statutory grounds and that termination
was in the child’s best interest. In eight issues, the father contends that there was
no evidence, or alternatively, insufficient evidence to support the trial court’s
judgment on the jury’s findings. We affirm.
                             FACTUAL BACKGROUND

      T.M. was born in a Galveston County hospital on November 23, 2012.
When T.M. was born, both she and her mother, N.C. (“Mother”), tested positive
for the illegal drug phencyclidine, or PCP. T.M. was also diagnosed with Down
syndrome, heart problems, and other conditions.

      T.M.’s biological father, R.M. (“Father”), was at the hospital when T.M. was
born, although he and Mother were no longer in a relationship and Mother was
married to another man. Hospital personnel reported that Father came to the
hospital smelling of alcohol and verbally abused Mother. Mother identified Father
as the biological father of T.M. and Father was listed as such on the hospital’s
medical records. T.M. also was given Father’s last name. Father never questioned
that he was T.M.’s biological father.

      Due to the positive drug screen and a concern about the possibility of
domestic abuse, the Department of Family and Protective Services became
involved. With Mother’s agreement, the Department arranged for T.M. to be
discharged from the hospital to Mother’s second cousin, D.H. Father was living in
Louisiana at the time and agreed to the placement. The Department did not
consider placing T.M. with Father because of concerns about his criminal history
and substance abuse. T.M. remained in D.H.’s care until she was returned to
Mother on May 28, 2013.

      The Department continued to monitor the child’s care at Mother’s home. In
July 2013, about two months after T.M. had been returned to her, Mother failed a
drug test. The Department returned T.M. to D.H.’s care, where she has since
remained.

      In August 2013, the Department filed an “Original Petition for Protection of


                                        2
a Child, For Conservatorship, and for Termination in Suit Affecting the Parent-
Child Relationship,” listing Mother’s husband as T.M.’s presumed father and
Father as T.M.’s alleged father. Mediation resulted in agreed temporary orders
appointing the Department as T.M.’s temporary managing conservator. Father was
also ordered to submit to parentage testing. The Department opted not to offer
Father a family service plan until parentage was determined.

      Father provided a DNA sample which confirmed that he was T.M.’s
biological father, and he was adjudicated as such on January 30, 2014. After that,
the Department set up a service plan for Father and delivered a copy of the plan to
him on March 1, 2013.

      Father’s service plan was approved by the court on May 27, 2014. Among
other things, the service plan ordered Father to attend, participate in, and complete
a psychological evaluation and follow all recommendations; submit to random
drug testing; complete a drug and alcohol assessment and follow all
recommendations; obtain and maintain gainful employment; pay child support as
ordered; enroll and attend a batterer’s intervention and prevention (“BIP”)
program; and not commit any criminal acts. At the time he received the service
plan, Father had been convicted of possession of a controlled substance, namely
PCP, and was incarcerated in the Galveston County Jail from December 27, 2013,
through August 22, 2014.

      When the Department’s suit went to trial on November 3, 2014, Father had
been out of jail for only seventy-three days. Within that time, Father completed a
parenting class, submitted to a psychological evaluation, and began a BIP program.
Father also voluntarily submitted to a drug treatment program. However, Father
admitted using PCP in November shortly before he was incarcerated, using PCP
after his release in August, and smoking marijuana in September. Additionally,

                                         3
records showed that Father did not start attending Narcotics Anonymous meetings
until October 9, less than a month before trial, and did not begin a clinical detox
program until October 24. Father estimated that, as of trial, he had been “clean” for
about one month.

         Because of his drug use, Father also refused to submit to a court-ordered
drug test because he knew he would test positive. The Department deemed the test
positive and, as a result, Father was not allowed supervised visitation with T.M. at
D.H.’s home. Before that, Father had four visits with T.M.

         At trial, the Department sought to terminate the parental rights of both
Mother and Father, with the goal of D.H. adopting T.M. The evidence showed that
T.M. was living in a safe, healthy, and caring environment with D.H., and that
D.H. had allowed Father’s family, including Father’s three adult children, to visit
the child. D.H. testified that she wanted to adopt T.M. so that they could continue
their life together. She also stated that she was willing to permit Father’s family to
continue to see T.M., provided that T.M. was “in a safe place and taken care of.”
She was also willing to permit Father to visit T.M. so long as he was not abusing
drugs.

         Father did not dispute that D.H. provided a caring and stable home for the
child; in fact, Father agreed that T.M. was well cared for and safe with D.H. Father
also believed it would be appropriate for T.M. to remain in D.H.’s care until such
time as he was able to provide for her. Father testified that he did not want his
parental rights terminated because he wanted to have access to the child and to be
able to have a say in the child’s life “when [he] bounce[d] back from all this.”
Father requested that he be made T.M.’s possessory conservator with any
restrictions and supervision the court deemed appropriate.

         The jury found that both Mother’s and Father’s parental rights should be
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terminated. In accordance with the jury’s findings, on November 26, 2014, the trial
court ordered their parental rights terminated and appointed the Department
permanent sole managing conservator of T.M.1

       The trial court’s judgment recited that Father’s parental rights were
terminated based on findings that termination was in T.M.’s best interest and that
Father committed acts establishing the predicate termination grounds set out in
subsections D, E, F, N, O, and P of Texas Family Code section 161.001(1). See
Tex. Fam. Code §§ 161.001(1)(D), (E), (F), (N), (O) & (P); 161.001(2). The
judgment also recited that termination was warranted under Family Code section
161.003. See id. § 161.003.

       Father filed a motion for new trial challenging the legal and factual
sufficiency of the evidence supporting termination, which was overruled by
operation of law. He also filed a timely notice of appeal.

                             ANALYSIS OF FATHER’S ISSUES

       On appeal, Father challenges the legal and factual sufficiency of the
evidence supporting each of the termination grounds recited in the judgment and
the trial court’s finding that termination of Father’s parental rights was in T.M.’s
best interest. Because we conclude that clear and convincing evidence supports
termination based on subsection E of Family Code section 161.001(1) and that
termination was in T.M.’s best interest, it is unnecessary to address Father’s other
issues. See In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.]
2003, pet. denied) (parental rights can be terminated with a finding best interest of



       1
         Mother did not appear at trial. The Department sought to terminate Mother’s parental
rights based on her affidavit of voluntary relinquishment of her rights to T.M. Mother does not
appeal the trial court’s judgment terminating her parental rights.

                                              5
the child and any of the section 161.001(1) grounds challenged by appellant, and
therefore it is unnecessary to address other grounds).

      Standards of Review

      Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
In Texas, to terminate the parent-child relationship, a trial court must find by clear
and convincing evidence that (1) the parent committed one or more of the acts
specifically named in section 161.001(1) of the Texas Family Code as grounds for
termination, and (2) termination is in the best interest of the child. Tex. Fam. Code
§ 161.001; In re U.P., 105 S.W.3d at 229. “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 § 101.007; In re C.H., 89 S.W.3d 17, 25–26 (Tex.
2002).

      When conducting a legal and factual sufficiency review in a parental-rights
termination case, we must determine whether the evidence is such that the fact
finder reasonably could have formed a firm belief or conviction that its findings
were true. See In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002); In re C.H., 89
S.W.3d at 25. In reviewing the legal sufficiency of the evidence, we examine all of
the evidence in the light most favorable to the fact finder's findings. In re
J.F.C., 96 S.W.3d at 266. 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 that does not support the finding. Id. This does not mean, however, that
we disregard all evidence that does not support the finding, because disregarding
undisputed facts that do not support the finding could skew the analysis of whether
there is clear and convincing evidence. Id.

                                          6
      In reviewing the factual sufficiency of the evidence, we must give due
deference to the fact finder’s findings and not supplant the judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We examine all of the
evidence, giving due consideration to evidence that the fact finder could have
reasonably found to be clear and convincing. Id. 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 the truth of its finding, then the evidence is factually
insufficient. Id.; In re J.F.C., 96 S.W.3d at 266.

      Subsection E

      Under Family Code section 161.001(1)(E), the trial court may terminate the
parent-child relationship if the court finds clear and convincing evidence that the
parent has engaged in conduct or knowingly placed the child with persons who
engaged in conduct that endangers the physical or emotional well-being of the
child. Tex. Fam. Code § 161.001(1)(E). The term “endanger” means to expose the
child to loss or injury or to jeopardize the child. Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Endangering conduct need not be directed
at or cause actual injury to the child. In re U.P., 105 S.W.3d at 233. Termination
under this subsection must be based on more than a single act or omission; a
voluntary, deliberate, and conscious course of conduct by the parent is
required. Id.; In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.]
2009, no pet.).

      Father contends that he did not engage in a voluntary, deliberate and
conscious course of conduct; rather, his actions, incarcerations, and drug use go to
show a diagnosis that with proper treatment will result in a successful parent.
Farther points to the results of his psychological evaluation in which the

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psychologist, Dr. Westhoven, diagnosed him as suffering from antisocial
personality disorder and a bipolar disorder, as well as disorders related to his drug
use. Dr. Westhoven testified that Father’s failure to conform to social norms,
impulsivity, irritability, aggressiveness, and disregard for the safety of others was
consistent with antisocial personality disorder, and that Father’s anger was a
characteristic of bipolar disorder.2 Father suggests that a finding of a deliberate,
conscious course of conduct is incompatible with the symptoms of the disorders
with which he has been diagnosed, such as impulsivity, and he argues that he is
finally receiving some support and help for his problems. Father also argues that
T.M. came into the Department’s care not because of an act or omission on his
part, but as a result of Mother’s PCP use, and none of Father’s criminal conduct
has been against a child.

      The Department contends that Father’s history of crime, incarceration, and
drug use support a finding under subsection E. Although incarceration alone will
not support termination, evidence of criminal conduct, convictions, and
imprisonment may support a finding of endangerment under subsection E. See In
re A.R.M., No. 14-13-01039-CV, 2014 WL 1390285, at *8 (Tex. App.—Houston
[14th Dist.] Apr. 8, 2014, no pet.) (mem. op.); In re C.A.B., 289 S.W.3d at 886.
Likewise, a history of illegal drug use and drug-related criminal activity is conduct
that subjects a child to a life that is uncertain and unstable, endangering her
physical and emotional well-being. In re A.R.M., 2014 WL 1390285, at *8; see In
re U.P., 105 S.W.3d at 235–36. A father’s conduct prior to the establishment of his
paternity may be considered as evidence of an endangering course of conduct. In
re A.R.M, 2014 WL 1390285, at *7.

      2
         Dr. Westhoven recommended that Father have a psychiatric evaluation to determine
whether medication would be helpful, along with therapy, drug treatment, support groups,
extended periods of random drug testing, and vocational counseling.

                                           8
      Father has an extensive criminal record starting long before T.M. was born
and continuing after her birth. In March 1992, Father was convicted of murder and
attempted murder and sentenced to fifteen years in a state jail facility. In 1998, he
was also convicted of bribery in Powers County and was sentenced to five years in
prison; that sentence was “stacked” onto his concurrent murder and attempted
murder sentences. In 2009, Father was convicted of possession of marijuana. In
2010, he was incarcerated for the unlawful carrying of a firearm by a felon.
Additionally, as noted above, Father was serving jail time for possession of PCP in
2013 when he was provided with the Department’s family service plan.

      Some of Father’s criminal conduct was the result of domestic abuse against
Mother. In July 2010, a protective order was entered on Mother’s behalf against
Father as a result of an assault for which Father was convicted in October 2010. He
was again convicted of assault with family violence in September 2011 for another
offense against Mother that occurred in February 2011. Additionally, Father
pleaded no contest to, and was convicted of, violating the protective order in June
2012. If a parent abuses the other parent or children, that conduct can support a
finding of endangerment even against a child who was not yet born at the time of
the conduct. In re C.A.B., 289 S.W.3d at 886; see also In re J.I.T.P., 99 S.W.3d
841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“Domestic violence,
want of self control, and propensity for violence may be considered as evidence of
endangerment.”).

      Father acknowledged his criminal history and he admitted that he was not
around when his other three children were growing up because of his
incarcerations. Father also admitted that since 2007, after serving fifteen years for
murder, attempted murder, and bribery, there has not been a year in which he has
not been incarcerated for one charge or another. Additionally, Father’s criminal

                                          9
behavior continued even after T.M.’s birth with his incarceration for possession of
PCP—the same drug that T.M.’s mother used before T.M. was born—and his
explanation for possessing the illegal drug was that he was selling drugs at the
time. Father also used PCP shortly before going to jail in 2013 and, after his
release, used PCP and smoked marijuana. Father admitted that he chose to smoke
marijuana even though it would result in preventing him from visiting with T.M.
Although Father maintained that he only recently developed substance-abuse
problems, Father had previously been convicted of possession of marijuana in
2009, and Dr. Westhoven’s psychological evaluation reflected that Father had
reported “an extensive history of drug abuse” and noted that he “admitted to being
addicted to cocaine, marijuana, and PCP.” Father’s extensive history of violent
crime, imprisonment, and substance abuse both before and after T.M.’s birth
demonstrates a course of conduct sufficient to support an endangerment finding.

      Additionally, we reject Father’s contention that his conduct cannot support
termination because it was the result of allegedly treatable psychological disorders.
Although mental illness or incompetence of a parent alone are not grounds for
terminating the parent-child relationship, a parent’s mental state may be considered
in determining whether a child is endangered if that mental state allows the parent
to engage in conduct that jeopardizes the physical or emotional well-being of the
child. See In re T.G.R.-M., 404 S.W.3d 7, 14 (Tex. App.—Houston [1st Dist.]
2013, no pet.); Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied). Thus, the jury could have considered Father’s mental
state when determining whether Father’s course of conduct endangered T.M.’s
well-being.

      The jury also could have discounted Father’s argument that he was getting
help for his psychological problems and simply needed more time to work on

                                         10
them, because there was evidence that Father had sought or been ordered to
undergo treatment in the past but did not follow through. Dr. Westhoven testified
that Father had reported psychological or emotional problems since the murder he
committed in 1991, but “he never followed any recommendations to get any kind
of psychiatric treatment or medication for those symptoms.” The 2010 protective
order Mother obtained against Father also ordered Father to complete a BIP
program, but Father never sought to comply with that portion of the order.
Additionally, Father testified that he attended some Narcotics Anonymous
meetings in jail and attended both Narcotics Anonymous and Alcoholics
Anonymous meetings after his release, but Father’s own documentation of his
efforts showed that he waited until the month before trial to begin substance-abuse
counseling and treatment. Thus, the jury could have reasonably concluded that
Father’s mental-health and substance-abuse issues would likely recur and further
jeopardize T.M.’s well-being. See In re R.W., 129 S.W.3d 732, 741 (Tex. App.—
Fort Worth 2004, pet. denied) (“the jury was not required to ignore a long history
of dependency and destructive behavior merely because it allegedly abated before
trial”); In re M.G.D., 108 S.W.3d 508, 514 (Tex. App.—Houston [14th Dist.]
2003, pet. denied) (“[E]vidence of a recent turnaround should be determinative
only if it is reasonable to conclude that rehabilitation, once begun, will surely
continue.”).

      Based on the record before us, we conclude a reasonable fact finder could
have formed a firm belief or conviction that Father engaged in conduct that
endangered the physical or emotional well-being of T.M. See, e.g., In re A.R.M.,
2014 WL 1390285, at *7–9; In re C.A.B., 289 S.W.3d at 886–87. We hold that the
evidence supporting termination under Family Code section 161.001(1)(E) is
legally and factually sufficient. We overrule Father’s second issue.


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      Best Interest of the Child

      A strong presumption exists that the best interest of the child is served by
keeping the child with its natural parent, and the burden is on DFPS to rebut that
presumption. In re U.P., 105 S.W.3d at 230. The factors the trier of fact may use
in a termination case to determine the best interest of the child include: (1) the
desires of the child; (2) the present and future physical and emotional needs of the
child; (3) the present and future emotional and physical danger to the child; (4) the
parental abilities of the persons seeking custody; (5) the programs available to
assist those persons seeking custody in promoting the best interest of the child; (6)
the plans for the child by the individuals or agency seeking custody; (7) the
stability of the home or proposed placement; (8) acts or omissions of the parent
which may indicate the existing parent-child relationship is not appropriate; and (9)
any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976); In re U.P., 105 S.W.3d at 230; see also Tex. Fam. Code §
263.307(b) (listing factors to consider in evaluating parent’s willingness and ability
to provide the child with a safe environment).

      Father contends that the presumption in his favor is not rebutted because the
evidence showed that he visited with T.M. “throughout the case” at D.H.’s home,
he has no prior history with the Department, and his children testified favorably
concerning his relationship with T.M. and the positive effect the child has had on
him. Father suggests that, because D.H. is willing to allow him and his family to
continue visiting T.M., Father will have continued interaction with T.M. and, if his
rights are not terminated, he may continue to qualify for services and improve such
that he will have a positive impact on T.M. Father also contends that he and his
family are in a better position than D.H., who was 57 years old at the time of trial,
to provide for the care T.M. will continue to need after she turns eighteen. Thus,

                                         12
Father contends, the Holley factors weigh in favor of not terminating his parental
rights to T.M.

      When reviewing the sufficiency of the evidence supporting the best interest
finding, evidence proving one or more of the statutory grounds for termination also
may be probative in determining that termination is in the best interest of the
child. In re C.H., 89 S.W.3d at 28; In re A.R.M., 2014 WL 1390285, at *10.
Although Father contends that he is “finally finding out that he needs help and is
willing to do it for T.M.’s sake,” the jury was entitled to infer from Father’s long
history of criminal conduct, incarceration, and drug use, as detailed above, that his
conduct in the future is unlikely to improve. Additionally, although Father
complained that he had insufficient time to comply with all of the requirements of
his service plan, he also acknowledged failing to comply with the plan’s
requirements by taking illegal drugs and refusing the required drug testing, thereby
forfeiting his ability to visit T.M.

      As support for his parenting abilities, Father points to a portion of Dr.
Westhoven’s psychiatric evaluation reflecting positively on him, but in the same
document Dr. Westhoven ultimately expresses concerns about Father’s ability to
provide for T.M.’s needs:

      [Father] reported a positive attitude toward parenting and seemed
      accepting of his daughter’s special needs. He expressed a desire to
      provide and protect her and a willingness to place her needs ahead of
      his own. [Father] seems to have an understanding of effective
      parenting strategies and showed maturity in his view of parenting.
      Significant concerns, however, are raised regarding his ability to
      provide an appropriate setting for a child, particularly one with special
      needs, given the personality characteristics and mental health
      symptoms described above. If visitation between [Father] and his
      daughter continues, it is recommended that it remain supervised at all
      times. There is concern given the characterological nature of
      [Father]’s problems, extensive history of substance abuse, and
                                         13
      ongoing criminal history that he may not be able to provide a
      consistently safe and stable environment for her, regardless of his
      intentions.

(Emphasis in original). Moreover, Father testified that he was unable to care for
T.M. even as of the time of trial, and he expressed satisfaction with T.M.’s current
placement with D.H. Instead, Father asked that he be allowed to retain his parental
rights while T.M. remained in D.H.’s care until some indefinite time in the future
when he would be able to “step up” as a parent. On appeal, Father requests that the
court reverse the termination order, appoint the Department sole managing
conservator with Father having possessory conservatorship rights, and remand the
case to the trial court to assess possession and access schedules for T.M.

      Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. Tex. Fam. Code § 263.307(a). After
T.M. was born in 2012, the Department arranged for D.H. to take T.M. home from
the hospital, and T.M. has since spent her entire life in D.H.’s care, with the
exception of the two months the child was placed with Mother. D.H. and her own
mother care for the child, and D.H. sees that T.M. receives her regular doctor visits
and therapy sessions. D.H. testified that, if Father’s rights are terminated, she
wants to adopt T.M. so that she can continue having the child in her life. D.H. also
testified that T.M. calls her “mama” and they have bonded. The Department
expressed satisfaction with D.H.’s care of T.M., and even Father acknowledges the
evidence shows that D.H. “loves [T.M.], cares for her medical needs and takes
excellent care of her.” Based on the evidence presented, the jury could have
reasonably formed a firm belief or conviction that terminating Father’s parental
rights was in T.M.’s best interest so that T.M., a special needs child, could
promptly achieve permanency in her life through adoption by D.H. See In re
T.G.R.-M., 404 S.W.3d at 17; In re M.G.D., 108 S.W.3d at 513–14.

                                         14
      Applying the applicable Holley factors to the evidence, we conclude that
legally and factually sufficient evidence supports the trial court’s finding that
termination of Father’s parental rights was in the best interest of T.M.

                                    CONCLUSION

      Having concluded that the evidence is legally and factually sufficient to
support the trial court’s findings that Father engaged in conduct which endangered
T.M.’s physical or emotional well-being and that the termination of Father’s
parental rights is in the child’s best interest, we affirm the trial court’s judgment
terminating Father’s parental rights to T.M.




                                       /s/     Ken Wise
                                               Justice



Panel consists of Justices Christopher, Donovan, and Wise.




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