Opinion issued May 9, 2017




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                             ————————————
                                NO. 01-16-00942-CV
                             ———————————
             IN THE INTEREST OF T.M. AND E.M., CHILDREN



                    On Appeal from the 315th District Court
                            Harris County, Texas
                      Trial Court Case No. 2014-03559J



                         MEMORANDUM OPINION

      E.M. appeals from the trial court’s judgment terminating his parental rights to

his daughters, T.M. (“Theresa”) and E.M. (“Emma”). In one issue, E.M. contends

that the evidence is factually insufficient to support a finding that termination of his

parental rights is in the children’s best interest. We affirm.
                                     Background

      On April 18, 2014, the Department of Family and Protective Services received

a referral alleging neglectful supervision of Theresa (three years old) and Emma (one

year old) by their mother, A.N.T. The referral alleged that A.N.T. was charged with

child endangerment after being stopped for driving 84 to 100 miles an hour with

Theresa in the car. This incident led to her subsequent arrest for possession of

cocaine.1 Theresa was subsequently released into the care of her father, E.M.

      On June 24, 2014, the Department received another referral alleging

neglectful supervision of Theresa and Emma, this time by E.M. and A.N.T. The

intake report alleged that E.M. and A.N.T. were fighting because the Department

had become involved and E.M. refused to take a drug test, E.M. had strangled A.N.T.

in the apartment, and that A.N.T. had bruises on her back and legs. Theresa and

Emma were in the apartment at the time of the altercation. According to the report,

E.M., A.N.T., and the children got into E.M.’s vehicle and A.N.T. later jumped out

and flagged down police. E.M. was subsequently arrested for possession of a

controlled substance, cocaine, and for domestic violence. The report alleged that

E.M.’s apartment was filthy with trash everywhere, Theresa and Emma slept on the

floor because there was no furniture, E.M. was going to be evicted from the

apartment, Emma had a diaper rash down to her thighs, Theresa’s hair was knotted,


1
      A.N.T. had twenty-five grams of cocaine in her possession at the time of her arrest.
                                           2
and that the children needed to be bathed. The children were removed from E.M.’s

care the same day.

      On June 25, 2014, the Department filed an Original Petition for Protection of

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

Relationship, accompanied by the affidavit of Jerri Thomas, a Department

caseworker. In its petition, the Department requested that it be named temporary

managing conservator of Theresa and Emma.        In her affidavit, Thomas cited the

children’s exposure to A.N.T.’s drug use and possession, E.M.’s drug possession

while Theresa and Emma were in his care, and the parents’ domestic violence in the

presence of the children, in support of the Department’s request that the children be

removed and that it be named temporary managing conservator.

      On September 4, 2014, the Department created a family service plan for E.M.

which required, among other things, that he complete a psychosocial evaluation and

follow all recommendations; successfully complete domestic violence classes;

maintain contact with the Department caseworker at least once a month; maintain

stable and safe housing for a minimum of six months consecutively and provide the

caseworker with a current lease and utility bills; provide the caseworker with all

sources of income by the 15th of each month or, if not employed, proof of his

registration with WorkSource and a list of at least three employers to whom he has

submitted an application; refrain from engaging in any criminal activities; complete

                                         3
a drug/alcohol assessment and follow all recommendations; participate in

drug/alcohol testing and show progress by testing negative for drugs and alcohol;

and successfully complete parenting classes.

      The trial began on November 30, 2015, and was recessed until February 1,

2016, at the request of A.N.T.’s counsel.2 When trial resumed, Deputy L. Lizcano

with the Harris County Constable’s Office testified that her sergeant was flagged

down in response to a disturbance involving A.N.T. and E.M. in June 2014. When

Deputy Lizcano arrived at the scene, A.N.T. told her that she and E.M. had had an

argument in his car and that she had jumped out. Deputy Lizcano testified that

A.N.T. had bruises on her back, neck, and legs. A.N.T. told her that E.M. had hit

and choked her during an argument that morning and that he had beaten her a few

days earlier. Deputy Lizcano then accompanied A.N.T. back to her apartment to

look for the children. Deputy Lizcano described the apartment as dirty with trash

everywhere, and furnished only with a blow-up mattress on the floor. A.N.T. told

Deputy Lizcano that she was not supposed to be around her children because she

had been arrested for having a suitcase full of drugs that belonged to E.M. while one

of her children was with her, and that the children had been removed from her care.




2
      The recess was requested so that A.N.T., who was incarcerated at the time, could
      appear at trial.
                                          4
A.N.T. also told Deputy Lizcano that E.M. was a drug dealer, that he kept the drugs

in his truck, and that she had been with him on several drug deals.

      Deputy Lizcano was then dispatched to a nearby car wash gas station where

she found E.M., Theresa, and Emma. Deputy Lizcano testified that the two little

girls “looked bad”: the toddler’s hair was badly matted, and the infant was wearing

a dirty diaper and had a severe diaper rash down her thighs. Deputy Lizcano testified

that A.N.T. changed the infant’s diaper and that E.M. had ointment in the car for

Emma’s rash. Deputy Lizcano testified that E.M. was subsequently taken into

custody and that the Department picked up the children.

      After a recess, trial resumed on October 7, 2016. Prior to calling its first

witness, the Department introduced numerous exhibits, which the trial court

admitted, including the following: E.M.’s conviction for possession of a controlled

substance, for which he was sentenced to seventy days’ incarceration; E.M.’s plea

of guilty to misdemeanor theft, for which he received deferred adjudication; E.M.’s

October 15, 2014 drug test, with positive results for cocaine and marijuana; E.M.’s

February 4, 2015 drug test, with positive results for cocaine; E.M.’s August 24, 2015

drug test, with positive results for cocaine and marijuana; E.M.’s November 30, 2015

drug test, with positive results for amphetamine, methamphetamine, cocaine, and

marijuana; E.M.’s February 8, 2016 drug test, with positive results for cocaine and




                                         5
marijuana; E.M.’s March 3, 2016 drug test, with positive results for cocaine; and

E.M.’s May 20, 2016 drug test, with positive results for cocaine.

      Sergeant L. Gonzales with the Harris County Constable’s Office testified that,

on June 24, 2014, A.N.T. flagged him down and told him that she had been assaulted

by her husband, E.M. Sergeant Gonzales testified that A.N.T’s neck was red and

that she had bruising on her back and legs. Sergeant Gonzales accompanied A.N.T.

to her apartment which he described as “pretty filthy,” with trash in the rooms, and

no furniture except a blow-up mattress in the living room. Sergeant Gonzales

subsequently located E.M., Theresa, and Emma and conducted a pat down search of

E.M. which uncovered thirty-seven light blue pills in E.M.’s right front pocket. E.M.

told the sergeant that they were his wife’s pills and that he was holding them for her.

Sergeant Gonzales then searched E.M.’s vehicle where he discovered a bag with

several grams of cocaine and brass knuckles. According to Sergeant Gonzales, there

were no car seats in E.M.’s vehicle. Sergeant Gonzales stated that A.N.T. denied

that the blue pills found on E.M. were hers, and that E.M. denied assaulting A.N.T.

and instead claimed that she was gone for a couple of days and had the bruises when

she returned home. E.M. was arrested for possession of a controlled substance.

      E.M. testified that the Department first became involved with his children

when A.N.T. got arrested for drug possession in April 2014. E.M. suspected A.N.T.




                                          6
had a drug problem because she lost a significant amount of weight quickly. He

testified that he was not using or selling drugs at that time.

      E.M. testified that, at the time of his arrest, he was in the process of moving

to another apartment and had left his job as a draftsman to get an oil field job in the

country because he was having issues in the city. He testified that he was storing

the children’s furniture at his sister’s house until he moved. E.M. testified that there

were car seats in his vehicle at the time of his arrest. E.M. stated that the Department

took custody of the children the day he was arrested and that he was sentenced to

seventy-four days’ confinement.3

      When asked about his positive drug tests following his release from jail, E.M.

testified that he had a drug test done somewhere else and that it came back clean.

With regard to his service plan, E.M. testified that he completed parenting classes

and a substance abuse assessment. He also completed a battering intervention

program but had to attend a second program after he was discharged from the first

one due to his failure to show up. E.M. denied engaging in domestic violence with

A.N.T. He also denied using drugs and explained that his positive tests results could

have been the result of getting a “contact high” from being around other people with




3
      The judgment of conviction reflects that E.M. was incarcerated for seventy days and
      that he was credited with seventy-two days of time served.
                                           7
drugs. He stated that he was around people dealing drugs in 2015 but that he is not

often around them anymore.

      In addition to Theresa, Emma, and his infant son, K.M., E.M. has four other

children ranging in age from twelve to seventeen years old who live with their

mother.4 E.M. acknowledged that he has not paid any child support, or provided

diapers or clothes, for Theresa and Emma since they have been in the custody of the

Department, but he questioned whether anyone had asked him to pay child support.

E.M. testified that he has refrained from engaging in criminal activity as required by

his service plan despite being charged with theft in August 2016. According to E.M.,

he could have gotten the charge dismissed but instead accepted deferred adjudication

because he did not have time to deal with going back and forth to the courthouse.

      E.M. testified that, upon his release from jail in 2014, it took him

approximately six months to find a job. He worked as a dishwasher at Pei Wei for

eight months and then at a golf course for approximately two months when he was

arrested for theft. At the time of trial, E.M. had been working for a printing service

company for approximately three weeks. E.M. stated that he has had four jobs and

lived in three different places over the course of the case.




4
      When asked about child support for his other children, E.M. testified that he “paid
      up in full” and owes no further support to their mother.
                                           8
      E.M. testified that, when A.N.T. was arrested in April 2014, the Department

approached him about taking Theresa and Emma.              According to E.M., the

Department conducted two home visits and that the caseworker did not have any

concerns about his ability to take care of the children. E.M. testified that the girls

were in great condition when they lived with him, they were developmentally on

target, and they had no special needs. E.M. testified that A.N.T. visited the girls

after she was released from jail in April 2014, but that he never left her alone with

the girls because that was one of the conditions under which the Department released

the children into his care.

      E.M. testified that, on the day he was arrested in June 2014, A.N.T. had come

over to his apartment at about 6:30 a.m. At 8:00 a.m., Thomas, the Department

caseworker, called to tell him that A.N.T. had made an allegation to the Department

that E.M. was using drugs and that he needed to take a drug test. A.N.T. told E.M.

that she wanted to watch the children instead of E.M. dropping them off with the

babysitter on his way to work. E.M. testified that when he refused, A.N.T. became

upset and would not leave the apartment. According to E.M., he picked her up and

put her outside the apartment but did not harm her. E.M. stated that, after Thomas’s

call, he had a bad feeling that morning and thought A.N.T. was going to set him up.

      E.M. testified that he left the apartment with A.N.T. and the girls and intended

to drop A.N.T. at her friend’s house. When they were two blocks away from the

                                          9
apartment, A.N.T. became upset and jumped out of the car. E.M. then took the girls

to the nearby washateria so he could do some wash. While he waited on the laundry,

he took Theresa and Emma outside where they played in the dirt. He testified that

he bought some candy for the girls at the corner store, and that Emma got the candy

on her clothes and Theresa’s hands became sticky from the candy. According to

E.M., Theresa has a habit of twirling her hair which causes knotting. He testified

that the matting in Theresa’s hair was due to her twirling her hair the previous night

and her sticky fingers.

      E.M. stated that he found a bag of pills underneath the passenger seat where

A.N.T. had been sitting before jumping out of the car. When the police arrived at

the washateria thirty minutes later, they discovered the pills on him. According to

E.M., after the police searched his vehicle and were unable to find anything, A.N.T.

got in the car and pulled something out and gave it to an officer. E.M. stated that,

as a result of his drug conviction, he lost his job and his apartment and his vehicle

was impounded.

      E.M. stayed with his cousin for a month and then lived on the streets for a

while during which time his younger brother gave him money. E.M. testified that

his cousin gave him money as well, that he visited his cousin’s house twenty or thirty

times during the pendency of the case (the last visit was in January 2016), and that




                                         10
he saw people there using cocaine. He testified that his cousin was later arrested for

drugs.

         E.M. initially testified that he had not used any drug during the pendency of

the case. He later stated that, other than smoking marijuana on November 26, 2015,

he has not used any drugs. E.M. acknowledged that he told the trial court during a

November 2015 hearing that he had been using cocaine, but only because his

attorney advised him to admit it.

         At the time of trial, E.M. had been living in his apartment since February 2016.

E.M. admitted that the lease has his friend Gabriel Castada’s name on it, and that the

leasing office did it so that E.M. would be able to lease the apartment. E.M. stated

that when the children’s guardian ad litem visited him in April 2016, he owned two

vehicles. He testified that he bought the second vehicle because the first one began

to have problems and he needed to be able to drive to work. When asked why he

bought a second vehicle when he claimed not to have any money to pay child support

or provide anything for the children, E.M. responded that nobody ever asked him to

support the children.

         E.M. testified that he had no reason to believe that A.N.T. was using drugs

before her arrest in April 2014. According to E.M., A.N.T. did not appear unstable

or unreliable while caring for Theresa and Emma. He further testified that A.N.T.




                                            11
had previously taken the girls out by herself so he had no reason for concern when

she left with Theresa the evening of her arrest.

      E.M. testified that when he visited the girls during the case, they ran up to him

and smiled, and that he played with them and read books to them during visits. When

asked about his future plans for Theresa and Emma, E.M. responded that he intended

to take great care of them.

      Trial continued on October 28, 2016. Tenille Whitlock, the conservator

caseworker, testified that the Department initially received a referral alleging

neglectful supervision of Theresa by A.N.T. who reportedly engaged in drug use and

intercourse in Theresa’s presence. A.N.T. led police on a high-speed chase that

resulted in her arrest. Pursuant to a parental child safety placement plan, the

Department released Theresa and Emma into E.M.’s care with an agreement that he

would not permit A.N.T. unsupervised visitation with them.

      Whitlock testified that, in June 2014, the Department received a referral of

neglectful supervision of the children by E.M. and A.N.T., involving allegations of

domestic violence and drug possession. She stated that the report was validated after

police found drugs in E.M.’s vehicle with the children present and A.N.T. was

observed with bruises.

      Whitlock developed family services plans for A.N.T. and E.M. and reviewed

E.M.’s plan with him while he was in jail on the drug charge. E.M. gave Whitlock

                                         12
the following names of several relatives as possible placements for the children:

Sandra Ortega, Jennifer Ortega, Faye Bishop, and Christy Thornton. Sandra and

Jennifer Ortega told her Whitlock that they would think about it but that they never

returned Whitlock’s calls. Faye told Whitlock not to call her again about the case,

and Thornton was not a suitable placement due to a previous history with the

Department. E.M. gave Whitlock several more names of possible placements: his

sister, Tierasha Adair, Reverend Ruben Wade, and Lastephine Richards. When

contacted, Reverend Wade and Richards told Whitlock that they would have to

discuss it with their families but they neither called back nor returned the

Department’s calls. As for Adair, the children’s paternal aunt, Whitlock indicated

that she was a prospective placement but that Adair later called Whitlock back and

told her that E.M. had come by her house and “suggested some words to her,” and

that she would not be able to take the children.

      With regard to the required tasks of his family service plan, Whitlock testified

that E.M. completed a psychosocial evaluation and parenting classes, and that he

submitted to drug tests, but that he did not follow the recommendation that he attend

Alcoholics Anonymous meetings. After three failed attempts, E.M. ultimately

completed domestic violence classes. Whitlock testified that, other than a period

between February to May 2015, E.M. has maintained contact with her.




                                         13
        The plan also required that E.M. maintain stable housing for a minimum of

six months and provide proof of a lease and utility bills. Whitlock stated that E.M.

provided her with an apartment lease but later indicated that he was actually

sub-letting the apartment from Castada. Whitlock has been unable to validate the

lease and E.M. has not provided her with any utility bills. Whitlock also stated that

E.M. has not provided her with the identifying information of any adult living in his

home as required by his service plan. When Whitlock conducted a visit on May 4,

2016, there was a female present in E.M.’s apartment. When she asked the woman

for her information, the woman gave Whitlock her first name only, and E.M stated

that she was only going to be there a short time. Whitlock testified that there was

living room furniture and a trundle bed for the girls in the apartment.

        The plan also required E.M. to provide his caseworker with proof of all

sources of income. Whitlock testified that, other than paycheck stubs presented to

the court in November 2015, E.M. has not provided any proof of his income.

Whitlock also testified that E.M. has not complied with the plan requirement that he

refrain from engaging in criminal activity because he was arrested for theft in August

2016.

         With regard to E.M.’s drug tests, Whitlock testified that most of E.M.’s

urinalysis tests were negative but that he had seven positive hair follicle tests

between October 2014 and May 2016. Whitlock testified that E.M. participated in

                                         14
a substance abuse assessment in 2014 in which he disclosed that he did not use drugs

but that, in light of his positive drug test results, he did not provide truthful answers

in his assessment.

      The plan also required E.M. to demonstrate and verbalize learned behaviors

consistent with his children’s ages and developmental capacities during family visits

and to verbalize learned behaviors to his caseworker. Whitlock stated that E.M. has

never verbalized ways in which he can nurture his children. In his visits with the

children, E.M. would either take selfies or pictures with them, or the children would

play in the room while he sat back in the corner. Whitlock stated that E.M. had

bi-monthly visits scheduled during the case, and that he missed visits in October and

November 2014 as well as his visits from February to May 2015.

      During his last visit in October 2016, E.M. came with another woman and her

two children to the visit. Whitlock testified that E.M. sat in the corner of the room

during the entire visit, and that after the children began to eat the snacks Whitlock

had provided for Theresa and Emma, she asked the other woman to take the children

out of the room. Whitlock stated that E.M.’s eyes were red and glazed, and that

when she asked him what was wrong, he told her that he had a migraine. Whitlock

asked E.M. to take a drug test after the visit. The results of the urinalysis test were

negative but his hair follicle test was positive for cocaine and marijuana. As a result

of that visit and his regular positive drug tests, the Department requested that E.M.’s

                                           15
visitation be stopped. E.M. subsequently sent Whitlock several text messages. In

one text, E.M. wrote, “I took care of my daughters for eight months alone before you

whores stepped in our life” and “Tenille, I promise you I always get even in the end.”

E.M. denied that the message was intended as a threat.

      Whitlock testified that Theresa and Emma have not once asked her about E.M.

during the pendency of the case. Whitlock testified that when Theresa came into the

Department’s care, she had a small frame and the caregivers had to cut her hair

because of the severe matting. Whitlock stated that Theresa was very quiet and not

developmentally on target, and that Emma was also very quiet and had some

difficulty with motor skills, particularly with her ability to walk. While in the

Department’s care, Theresa has received speech therapy and Emma has received

speech therapy and occupational therapy. According to Whitlock, the girls have

since blossomed. Both girls are developmentally on target. Theresa is currently in

kindergarten, is very talkative, follows direction well, and has begun learning sight

words. Emma is doing much better and is speaking more although she still has some

issues with her motor skills and her balance that require daily hands-on work to help

her continue to develop.

      Theresa and Emma have been in an adoptive placement since May 2015.

Whitlock testified that they refer to their caregivers as Mommy and Daddy, and are

bonded with them as well as the family’s young adoptive son whom they refer to as

                                         16
their brother. Whitlock stated that the children’s current placement is appropriate,

the girls are happy with their caregivers, and the caregivers would like to adopt the

girls.

         After their son K.M. was born, E.M. and A.N.T. provided the following names

as possible placements for all three children: Cherrelle Valentine, Shatiqua Ross,

Patricia Hood, Jacqueline Wilmore, Kiara Walker, and Jonathan Manuel. Whitlock

testified that although Valentine provided her information for a background check

and told Whitlock that she would discuss it with her family, she never responded to

the Department’s calls or letter. Ross did not respond to the numerous messages left

by the Department. Hood stated that she did not have enough furniture and was

diabetic but would consider being a foster parent in two years once she was retired.

Wilmore told Whitlock that she was ill and did not have a back-up plan for the

children, and that she could be a temporary placement only. The Department

attempted to contact Walker but her phone number did not work. Manuel, the

children’s paternal uncle, came to one of the family visits but told Whitlock that he

barely had a place to stay himself and was unable to take the girls. Whitlock testified

that the Department has made every effort to try and place Theresa and Emma with

a family member but that no one has been willing or able to take the children.

         Whitlock testified that the Department was seeking termination of E.M.’s

parental rights to Theresa and Emma and that the Department believed that

                                          17
termination is in the children’s best interest because E.M. failed to comply with the

family plan of service and had repeated positive drug tests from October 2014 until

March 2016. Whitlock stated that E.M. admitted to being in and out of a drug house

to get money and that he has not shown that he can provide the children with a safe

and stable environment. She further stated that E.M. never brought diapers, clothes,

or presents for the girls’ birthdays or for Christmas. Whitlock testified that the

Department’s goal for Theresa and Emma was unrelated adoption.

      A.N.T. testified that E.M. was a family man and involved in his children’s

lives. She stated that E.M. provided financially for all of his children and bought

toys, games, clothes, and shoes for them. A.N.T. stated that E.M. never threatened

her or became angry with her.

      According to A.N.T., she first started using drugs around Easter 2014 because

she and E.M. were having problems stemming from the fact that E.M. had had an

affair and A.N.T. was hanging out with her mother, a drug addict. A.N.T. testified

that she went by the apartment to see the children in June 2014. Before going into

the apartment, A.N.T. put three grams of cocaine in E.M.’s car because she did not

want to bring drugs around the children. She testified that she became mad when

E.M. would not let her watch the girls instead of dropping them off at the babysitter.

She initially got into the car with E.M. so that he could drop her off at a friend’s

house but later jumped out because she was still angry at him. She flagged down an

                                         18
officer and told him that E.M. had hit her because she was “out for revenge.” She

testified that when she heard E.M. tell the police that the pills were hers, she became

angry that he would not “take this charge” for her so she also told the police that he

had drugs in the car. A.N.T. testified that, despite what she told the officer at the

time, her bruises were not caused by E.M. but rather from sleeping under a bridge

with her mom the previous night. She also stated that she, not Sergeant Gonzales,

pulled the cocaine out of the car. After E.M. was released from jail, he and A.N.T.

were homeless together for a while. A.N.T. testified that she and E.M. had several

family visits with the girls and that the visits were great.

      According to A.N.T., she and E.M. did drugs twice together. She stated that

E.M. knew she was using drugs and that he used to throw them out of the window

when he was driving which made her mad. When A.N.T. found out that she was

pregnant with K.M., E.M. told her to slow down and tried to help her get sober and

clean. She stated that E.M. began using drugs because of the pressure he was under

trying to get her clean. She stated that she lied to Thomas when she told her that

E.M. was using drugs in June 2014 because she was mad that he would not allow

her to see the children unsupervised.

      At the conclusion of trial, the trial court found that termination of E.M.’s

parental rights to Theresa and Emma was warranted under subsections (D), (E), and




                                           19
(O) of Family Code section 161.001(b)(1),5 and that termination was in the

children’s best interest.6 The trial court signed its termination order on November

7, 2016. This appeal followed.

                                      Discussion

      On appeal, E.M. acknowledges that the evidence is factually sufficient to

support the predicate findings under subsections (D), (E), and (O) and does not

challenge those findings on appeal. He also notes that this evidence is legally



5
      As relevant here, section 161.001(b)(1) states that the court may order termination
      of the parent-child relationship if the court finds by clear and convincing evidence,
      in addition to the best interest finding, that the parent has:
             (D) knowingly placed or knowingly allowed the child to remain in
             conditions or surroundings which endanger the physical or emotional
             well-being of the child;

             (E) engaged in conduct or knowingly placed the child with persons
             who engaged in conduct which endangers the physical or emotional
             well-being of the child; [or]
                                           ....

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

TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E) & (O) (West 2014).
6
      The trial court also terminated A.N.T.’s parental rights based on her affidavit of
      relinquishment pursuant to section 161.001(b)(1)(K), and found that termination
      was in the children’s best interest.
                                           20
sufficient to support the trial court’s finding that termination was in the children’s

best interest. In his sole issue, E.M. argues that the evidence is factually insufficient

to support the trial court’s best interest finding.

      A. Burden of Proof and Standard of Review

      Protection of the best interest of the child is the primary focus of the

termination proceeding in the trial court and our appellate review. See In re A.V.,

113 S.W.3d 355, 361 (Tex. 2003). A parent’s rights to the “companionship, care,

custody, and management” of his or her child is a constitutional interest “far more

precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102

S. Ct. 1388, 1397 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).

Accordingly, we strictly scrutinize termination proceedings and strictly construe the

involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d

18, 20 (Tex. 1985).

      In a case to terminate parental rights under section 161.001 of the Family

Code, the Department must establish, by clear and convincing evidence, that (1) the

parent committed one or more of the enumerated acts or omissions justifying

termination and (2) termination is in the best interest of the child. TEX. FAM. CODE

ANN. § 161.001 (West Supp. 2014). Clear and convincing evidence is “the measure

or degree of proof that will produce in the mind of the trier of fact a firm belief or

conviction as to the truth of the allegations sought to be established.” Id. § 101.007

                                           21
(West 2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “Only one predicate

finding under section 161.001(b)(1) is necessary to support a judgment 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 at 362.

     When conducting a factual sufficiency review, we consider and weigh all of

the evidence including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d

336, 345 (Tex. 2009). “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.” Id. We give due deference to the factfinder’s

findings and we cannot substitute our own judgment for that of the fact finder. See

In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

      B. Best Interest of the Child

      There is a strong presumption that the best interest of a child is served by

keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116

(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]

2012, no pet.). Prompt and permanent placement of the child in a safe environment

is also presumed to be in the child’s best interest. TEX. FAM. CODE ANN. §

263.307(a) (West Supp. 2014).




                                          22
      Courts may consider the following non-exclusive factors in reviewing the

sufficiency of the evidence to support the best interest finding: the desires of the

child; the present and future physical and emotional needs of the child; the present

and future emotional and physical danger to the child; 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 which 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, 372 (Tex. 1976). This list of factors

is not exhaustive, however, and evidence is not required on all of the factors to

support a finding that terminating a parent’s rights is in the child’s best interest. Id.;

In re D.R.A., 374 S.W.3d at 533. Moreover, we note that evidence supporting

termination under one of the grounds listed in section 161.001(b)(1) can also be

considered in support of a finding that termination is in the best interest of the child.

See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002) (holding same evidence may be

probative of both section 161.001(b)(1) grounds and best interest).

      In addition, the Texas Family Code sets out factors to be considered in

evaluating the parent’s willingness and ability to provide the child with a safe

environment, including: the child’s age and physical and mental vulnerabilities; the

                                           23
willingness and ability of the child’s family to seek out, accept, and complete

counseling services and to cooperate with and facilitate an appropriate agency’s

close supervision; the willingness and ability of the child’s family to effect positive

environmental and personal changes within a reasonable period of time; and whether

the child’s family demonstrates adequate parenting skills, including providing the

child with minimally adequate health and nutritional care, a safe physical home

environment, and an understanding of the child’s needs and capabilities. TEX. FAM.

CODE ANN. § 263.307(b) (West Supp. 2014); In re R.R., 209 S.W.3d at 116.

      1. Children’s Desires and Needs, and Plans for the Children

      The first and second Holley factors consider the desires of the child and the

present and future physical and emotional needs of the child. Holley, 544 S.W.2d at

372. The sixth Holley factor looks at the plans for the child by the individual or

agency seeking custody. Id.

      When children are too young to express their desires, the factfinder may

consider whether the children have bonded with the proposed adoptive family, are

well-cared for by them, and whether they have spent minimal time with a parent.

See In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet.

denied). A child’s need for permanence through the establishment of a “stable,

permanent home” has been recognized as the paramount consideration in a best

interest determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas

                                          24
2007, no pet.). Therefore, evidence about the present and future placement of the

child is relevant to the best interest determination. See In re C.H., 89 S.W.3d 17, 28

(Tex. 2002).

      At the time of trial, Theresa was four years old and Emma was two years old

and, thus, too young to testify about their desires. See In re T.G.R.-M., 404 S.W.3d

7, 16 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The trial court heard testimony

that Theresa and Emma have been in a foster placement since May 2015, that they

are bonded with their foster parents whom they refer to as Mommy and Daddy, and

that they are also bonded with the family’s young adoptive son whom they refer to

as their brother.   Whitlock testified that the children’s current placement is

appropriate, the girls are happy with their caregivers, and that the foster parents

would like to adopt the girls. E.M. testified that when he visited the girls, they ran

up to him, smiling. The trial court also heard testimony that Theresa and Emma did

not once ask about E.M. during the pendency of the case.

      E.M. testified that when the children lived with him, they were

developmentally on target and had no special needs. When asked about his plans

for Theresa and Emma, E.M. testified that he plans to take great care of them.

Whitlock testified that when Theresa came into the Department’s care, she was very

quiet and not developmentally on target. She testified that Emma was also very quiet

and had some difficulty with motor skills, particularly her ability to walk. While in

                                         25
the Department’s care, Theresa has received speech therapy and Emma has received

speech therapy and occupational therapy. According to Whitlock, the girls have

since blossomed and are developmentally on target.           Theresa is currently in

kindergarten, is very talkative, follows direction well, and has begun learning sight

words. Emma is doing much better and is speaking more although she still has some

issues with her motor skills and her balance that require daily hands-on work to

continue in her development. This evidence supports the trial court’s best interest

finding under the first, second, and sixth Holley factors. See also TEX. FAM. CODE

ANN. § 263.307(b) (listing child’s age, child’s physical and mental vulnerabilities,

and parent’s understanding of child’s needs and capabilities among factors to be

considered in determining whether child’s parents are willing and able to provide

child with safe environment).

      2.     Endangering Conduct and Parental Acts or Omissions

      The third Holley factor is the present and future physical danger to the child.

Holley, 544 S.W.2d at 372. The eighth factor considers acts or omissions of the

parent that indicate the parent-child relationship is improper. Id.

      The evidence shows that E.M. tested positive for illegal drugs, including

cocaine, seven times between October 2015 and May 2016. With regard to his drug

usage, E.M. provided conflicting testimony. At trial, E.M. initially testified that he

did not use drugs and that that his positive drug tests could have been the result of

                                          26
getting a contact high from being around other people with drugs. He subsequently

testified that, other than smoking marijuana in November 2015, he has not used any

drugs during the pendency of the case. However, E.M. later acknowledged that he

admitted to the trial court at a November 2015 hearing that he had been using cocaine

but stated that he said it only because his attorney advised him to disclose it.

      A parent’s past conduct is probative of his future conduct when evaluating the

child’s best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San

Antonio 2013, no pet.). E.M.’s inability to refrain from drug use during the

pendency of the case reflects an inability to perceive the danger that parental drug

use would pose to a child. See In re G.A., No. 01-11-00565-CV, 2012 WL 1068630,

at *6 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (mem. op.) (concluding

that father’s concealment of drug use and continued relationship with mother who

abused drugs demonstrated father’s inability to perceive danger that parental drug

use posed to child).

      E.M. argues that the most salient feature of his test results is the declining

level of drugs over time and the fact that his last test in June 2016 was negative.

However, a fact finder is not required to ignore a history of narcotics use merely

because it abates as trial approaches. See Cervantes-Peterson v. Texas Dep’t of

Family & Protective Servs., 221 S.W.3d 244, 254 (Tex. App.—Houston [1st Dist.]

2006, no pet.) (concluding that despite mother’s contention that she had stopped

                                          27
using cocaine and marijuana, trial court was not required to ignore her history of

narcotics use merely because she testified that it had abated before trial); In re

M.G.D., 108 S.W.3d 508, 513 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)

(noting that jurors are not required to ignore long history of dependency and abusive

behavior merely because it abates as trial approaches). Further, Whitlock testified

that she asked E.M. to take a drug test following his visit with the children in October

2016, and that the results of the test were positive for cocaine and marijuana.

      Moreover, E.M.’s arrest in June 2014 stemmed from A.N.T.’s report to police

that he had physically abused her, and E.M. was convicted for possession of a

controlled substance after the police found Xanax in his pocket and cocaine in his

car. E.M. also testified that he was around people dealing drugs in 2015 but that he

is not often around them anymore, that he visited his cousin’s house twenty or thirty

times during the pendency of the case (with the last visit in January 2016) where he

saw people using cocaine, and that the cousin, with whom he had once lived, was

later arrested for drugs. See In re M.S.L., No. 14-14-00382-CV, 2014 WL 5148157,

at *7 (Tex. App.—Houston [14th Dist.] Oct. 14, 2014, no pet.) (mem. op.)

(concluding father’s series of crimes, including drug-related offenses and domestic

violence occurring before and after children’s births, supported trial court’s best

interest finding).




                                          28
      This evidence supports the trial court’s best interest finding under the third

and eighth Holley factors.

      3. Parental Abilities and Stability of the Home
      The fourth Holley factor is the parental abilities of the person seeking custody.

Holley, 544 S.W.2d at 372. The seventh factor looks at the stability of the home or

proposed placement.

      Among other tasks, E.M.’s family service plan required that he demonstrate

and verbalize learned behaviors consistent with his children’s ages and

developmental capacities during family visits and verbalize them to his caseworker.

Whitlock testified that E.M. never verbalized ways in which he could nurture his

children. During his family visits, E.M. would either sit and take selfies or pictures

with the children, or sit back in the corner while the children played. E.M. testified

that, contrary to Whitlock’s testimony, Theresa and Emma ran up to him when he

arrived for visits, and that he played with them and read them books. Whitlock stated

that E.M. had bi-monthly visits scheduled during the case and that he missed visits

in October and November 2014 and the visits from February to May 2015.

      Whitlock also testified that E.M.’s eyes were red and glazed at his last family

visit in October 2016. Whitlock asked E.M. to take a drug test after the visit and the

results of the urinalysis were negative but the hair follicle test was positive for

cocaine and marijuana. A parent’s exercise of poor judgment currently and in the


                                         29
past demonstrates an inability to provide adequate care for the child. See In re K.S.,

420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.) (noting parental drug

abuse is reflective of poor judgment and is also factor to be considered in best interest

analysis); Wischer v. Tex. Dep’t of Family & Protective Servs., No. 03-12-00165-

CV, 2012 WL 3793151 at *10 (Tex. App.—Austin Aug. 29, 2012, no pet.) (mem.

op.).

        On the day of E.M.’s arrest in June 2014, Deputy Lizcano and Sergeant

Gonzales described E.M.’s apartment where he lived with Theresa and Emma as

dirty with trash everywhere, and with the only furniture being a blow-up mattress on

the floor. E.M. testified that he was in the process of moving to another apartment

and that the children’s furniture was at his sister’s house.

        E.M.’s family service plan required that he maintain stable housing for a

minimum of six months and provide proof of a lease and utility bills. E.M. testified

that he has held four jobs and lived in three different places over the course of the

case. Whitlock stated that E.M. provided her with his current apartment lease but

later told her that he was actually sub-letting the apartment from a friend. At the

time of trial, Whitlock was unable to validate the lease and E.M. has not provided

her with any utility bills. Whitlock testified that there was living room furniture and

a trundle bed for the girls in the apartment.




                                           30
      E.M.’s family service plan also required E.M. to provide his caseworker with

proof of all sources of income. Whitlock testified that, other than paycheck stubs

presented to the court in November 2015, E.M. has not provided proof of income to

Whitlock. The trial court heard testimony that E.M. bought a second vehicle while

at the same time he claimed not to have any money to provide support for the

children. This evidence supports the trial court’s best interest finding under the

fourth and seventh Holley factors. See also TEX. FAM. CODE ANN. § 263.307(b)

(listing adequate parenting skills and a safe physical home environment as factors to

be considered in determining best interest of child).

      In light of the entire record, the disputed evidence that a reasonable fact finder

could not have credited in favor of the best interest finding is not so significant that

a fact finder could not reasonably have formed a firm belief or conviction that

termination of E.M.’s parental rights is in Theresa and Emma’s best interest. See In

re H.R.M., 209 S.W.3d at 108. After considering the relevant factors under the

appropriate standards of review, we hold that the evidence is factually sufficient to

support the trial court’s finding that termination of the parent-child relationship is in

the children’s best interest. Accordingly, we overrule E.M.’s issue.

                                      Conclusion

      We affirm the trial court’s judgment.




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                                            Russell Lloyd
                                            Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.




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