Opinion issued February 5, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00729-CV
                            ———————————
                  IN THE INTEREST OF R.J, JR., A CHILD



                    On Appeal from the 344th District Court
                          Chambers County, Texas
                        Trial Court Case No. CV29910


                                   OPINION

      Following a bench trial, the trial court signed a judgment terminating the

parent-child relationship between E.M. (“Mother”) and R.J., Sr. (“Father”) and their

three-year-old son, “Ray.”1 The trial court also appointed the Texas Department of




1
      We use pseudonyms to refer to the subject child, parents, and other family members
      involved in this case. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
Family and Protective Services (“the Department”) to be Ray’s permanent managing

conservator.

      Father and Mother appeal, filing separate briefs. Father presents four issues,

and Mother presents two issues. Both assert that the trial court should have

dismissed the suit under Family Code Section 263.401(a) because the court did not

timely commence trial as required by the statute. Both also challenge the sufficiency

of the evidence to support the trial court’s findings that termination of the parent-

child relationship was in Ray’s best interest. In addition, Father challenges the

sufficiency of the evidence supporting the trial court’s statutory predicate finding.

He also asserts that the trial court erred in appointing the Department as Ray’s

permanent managing conservator. Because we conclude that the trial court timely

commenced trial as statutorily required, legally and factually sufficient evidence

supports the challenged findings, and Father does not have standing to challenge the

conservatorship appointment, we affirm the trial court’s judgment.

                       Factual and Procedural Summary

Filing of the Suit and Ray’s Removal

      Ray was born on January 4, 2015. On February 6, 2016, the Department filed

suit against Mother and Father in Chambers County. It requested the trial court to

issue temporary orders appointing the Department as Ray’s temporary managing




                                         2
conservator. The Department sought to terminate Mother’s and Father’s parental

rights to Ray if family reunification could not be achieved.

      To support its request to be named Ray’s temporary managing conservator,

the Department offered the affidavit of its representative, S. Sanders.2 In her

affidavit, Sanders testified that on January 5, 2015—the day after Ray was born—

the Department received a report that Mother had tested positive for synthetic

marijuana during her pregnancy with Ray. Sanders stated that the Department

received another report in May 2015, indicating that Mother and Father were abusing

drugs around then-five-month-old Ray and that the baby was “exhibiting signs of

poor hygiene and possible malnourishment.”

      Sanders described that, over the next eight months, the Department offered

Mother and Father family-based safety (“FBSS”) services, which permitted Ray to

stay in his parents’ care while they received services to address issues creating an

unsafe home for Ray, including their drug use and Father’s mental health issues.

However, even after services were provided to them, the parents continued to test

positive for illegal drugs and failed to engage in services.

      Sanders indicated in her affidavit that Mother and Father also struggled with

homelessness. During the period they were receiving family-based-safety services,



2
      The affidavit was not offered into evidence at trial but is referenced for background
      purposes to show what was offered to support Ray’s removal.
                                            3
Mother, Father, and Ray began living with one of the parents’ grandmothers.

Because of their continued drug use and noncooperation with services, Mother and

Father were asked by the Department to leave the grandmother’s home in October

2015, leaving Ray in the grandmother’s care. Sander’s affidavit indicated that, over

the next several months, Mother and Father continued to be noncooperative with

engaging in services and continued to use illegal drugs.

      On February 11, 2016, the trial court signed an order naming the Department

as Ray’s temporary managing conservator. The court also signed an order requiring

Ray to remain in his grandmother’s home.

Family Service Plans and Subsequent Events

      The Department developed family service plans for Mother and Father. The

trial court incorporated the plans by reference in a status-hearing order, making both

plans orders of the court. Each plan listed tasks and services to be completed by the

parents for reunification with Ray to occur. Specifically, the plans required the

parents to (1) support Ray to the best of his or her ability, including the child’s

financial, emotional, medical, educational, and social needs; (2) submit to random

drug tests; (3) attend all hearings and parental conferences; (4) obtain employment

and provide pay receipts; (5) attend all visitations with Ray and confirm attendance

24 hours in advance; (6) submit to random drug testing; (7) cooperate completely

with and provide all information required to the Department; (8) not interrupt Ray’s


                                          4
placement; (9) notify the Department within 48 hours of any change of address or

phone number; (10) provide safe, appropriate housing free of any illegal substances,

and provide proof of lease or purchase and proof of payment of rent or mortgage;

(11) not commit any criminal act and resolve all warrants; and (12) complete a

psychological assessment.

      Each plan also listed service plan goals and stated that it was intended to help

the parent provide a safe environment for Ray. The plans warned that, if the parent

was unwilling or unable to provide that safe environment, parental and custodial

duties and rights could be restricted or terminated.

      In March 2016, Father was charged with the misdemeanor offense of

possession of under two ounces of marijuana. The information also stated that

Father had previously been convicted of felony assault in 2013. Father pleaded

guilty to the misdemeanor offense and received 10 days in jail. While visiting Father

in jail, Mother was arrested on an outstanding warrant for theft of services.

      In April 2016, the trial court signed an order placing Ray with his maternal

aunt. The following month, in May 2016, Mother gave birth to a girl, “Jane.” The

Department filed suit in Harris County, seeking to terminate the parent-child

relationship between Mother and Jane and Father and Jane.

      In June 2016, the Department determined that Ray could not remain in the

maternal aunt’s home because a person living in the home, the aunt’s boyfriend, had


                                          5
been accused of sexually abusing a family member. Ray was removed from the

home and placed with a non-relative foster family.

      Around this time, Father also attempted suicide.

      In October 2016, the Department evaluated Mother’s progress under the

family service plan. The evaluation indicated that “[t]here has been absolutely no

changes that would significantly mitigate or reduce the risk to [Ray].”           The

Department indicated that “[Mother] continues to move from place to place.

[Mother] cannot maintain steady employment. [She] continues to live with [Father]

knowing he is refusing to take urine tests. [Mother] cannot support herself or her

family.”

      In December 2016, Mother and Father each signed an “Affidavit for

Voluntary Relinquishment of Parental Rights.” The affidavits had been prepared by

an attorney representing the Smiths, a couple Mother and Father had known for three

years.3 The Smiths were friends of Mother and Father, and Mrs. Smith had at times

babysat Ray. In the affidavits, Mother and Father agreed to relinquish their parental

rights to Ray and Jane and designated the Smiths as the children’s “prospective

adoptive parent[s].”

      The attorney who prepared the affidavits had been hired by the Smiths to assist

in the adoption and to intervene, at least, in the Chambers County suit involving Ray.


3
      Smith is a pseudonym.
                                          6
Case Called to Trial January 17, 2017

       On January 17, 2017, the trial court called the case to trial. The court asked

all testifying witnesses to raise their right hand, and the record indicates that

witnesses were sworn. The trial court then asked for announcements. All the

attorneys involved, including the attorney ad litem for Ray and the attorneys

representing Mother, Father, and the Department announced that they were ready to

proceed. Ray’s court appointed special advocate (CASA) guardian ad litem was in

court and said that she was “ready.” Also present was the attorney for the Smiths,

representing them as would-be intervenors. He announced ready as well. The

Department’s attorney objected to the Smith’s attorney “doing any question and

answer” when no intervention had yet been filed. The trial court stated that the

Smith’s attorney had “just asked” to file the intervention. The trial court then told

the Department to call its first witness. The Department called its caseworker, C.

Karachiwala. After brief questioning, the trial court said, “We’re recessed.”

       The case was set again for trial in March 2017, but Father moved for a

continuance. The case was set again in October 2017. The trial court’s order setting

the October trial stated that the court “finds that this case is currently in trial recess.”

Father again requested a continuance.

       The Department filed a written objection to Father’s motion for continuance

of the October setting. To support its objection to delaying trial, the Department


                                             7
pointed out that the case had already been set for final hearing three times: trial had

been started and recessed after all parties announced “ready” on January 17, 2017,

trial was reset to continue March 29, 2017, but had been continued again and reset

to resume on October 30, 2017. The Department also asserted that Father had been

given adequate time to comply with his service plan.

Mother’s and Father’s Parental Rights Terminated to Ray’s Sister, Jane

      Meanwhile, in the summer of 2017, the Harris County case involving Ray’s

younger sister, Jane, proceeded to trial. Ultimately, on August 23, 2017, the trial

court rendered judgment, terminating Mother’s and Father’s parental rights to Jane.

Among the Harris County court’s findings supporting termination was its

determination that Mother and Father had (1) knowingly placed Jane in surroundings

endangering her well-being under Texas Family Code Section 161.001(1)(D) and

had (2) engaged in conduct endangering Jane’s well-being under Section

161.001(1)(E). The Harris County court also found that termination was in Jane’s

best interest. Mother and Father appealed to this Court, and we affirmed the Harris

County decree.4

New FBSS Case Opened Less Than Two Months Before Final Hearing

      On October 10, 2017, Mother gave birth to a baby boy, Alex.


4
      See In re D.S.J., No. 01–17–00678–CV, 2018 WL 1003635, at *10 (Tex. App.—
      Houston [1st Dist.] Feb. 22, 2018, pet. denied) (mem. op.).

                                          8
      In April 2018, Mother reported an incident of domestic violence between her

and Father. Six-month-old Alex was in their care at the time. Mother also reported

that Father had been drinking at the time of the incident. As result of the incident,

an FBSS case was opened regarding Alex. Mother agreed to engage in services, and

the Department developed a safety plan for Alex, permitting the baby to stay with

Mother. However, the safety plan required Father to leave the home. Father was

permitted to return home in early June 2018.

Final Hearing on June 18, 2018

      On June 18, 2018, the trial court called the case for the final hearing in the

trial. Father moved for a continuance, which was denied.

      To support termination of Mother’s and Father’s parental rights, the

Department asserted in its live petition that termination was in Ray’s best interest.

The Department also asserted, as a predicate ground, that Mother’s and Father’s

parental rights to Ray should be terminated because each parent had previously had

his and her parental rights terminated to another child based on findings of

endangerment.

      At trial, Mother testified that she had a total of six children: the three children

she had with Father—Ray, Jane, and Alex—and three older daughters, who were

ten, seven, and five years old. Mother’s three older daughters are not Father’s

biological children but, at the time of trial, lived with Mother and Father in a home


                                           9
they rented in a small town near Corpus Christi. Until August 2017, Mother’s three

older daughters had lived with their maternal grandmother.

      Testimony and documentary evidence showed that Mother’s and Father’s

parental rights to Jane were terminated in the Harris County case based on findings

of endangerment under Family Code Sections 161.001(1)(D) and 161.001(1)(E).

This Court’s judgment, affirming the Harris County termination decree, was

admitted into evidence.

Evidence of Parents’ Drug Use

      Mother and Father also testified about their drug use. Mother confirmed that

she used marijuana while she was pregnant with Ray, and she agreed that smoking

marijuana while pregnant endangers a baby. She also acknowledged that the

Department’s investigation began when it learned that she had tested positive for

marijuana when she was 20-weeks pregnant with Ray. Mother admitted that Ray

had then been placed in a parental child safety placement and that she was initially

provided with family-based safety services because she was using, and tested

positive for, synthetic marijuana. Mother acknowledged that she continued to use

and to test positive for marijuana during the FBSS case. However, Mother testified

that she had not tested positive for marijuana since October 2015.        She also

introduced into evidence certificates showing that, in February 2018, she completed

an outpatient drug treatment program and another program entitled “Purple Door.”


                                        10
      Father also acknowledged that he had tested positive for synthetic marijuana

several times “at the start of [Ray’s] case.” Father admitted to using marijuana in

the summer of 2016 and to using ecstasy “once or twice” during that time. He

testified that around that time he “fell for cocaine.” He denied that he had a positive

drug test for cocaine, but he acknowledged that the caseworker told Mother that he

had tested positive for cocaine. Father also admitted that, a month after Jane was

born in May 2016, he had used benzodiazepine, marijuana, amphetamine, and

methamphetamine.

      Father claimed that he had not used drugs or had a positive drug test for about

two years. Father also offered into evidence a certificate showing he completed an

outpatient drug treatment program in May 2017.

      Regarding his criminal history, Father confirmed that he was arrested for

marijuana possession in March 2016. The Department offered into evidence the

information charging Father with the misdemeanor offense of possession of

marijuana. The information also indicates that Father was convicted of the felony

offense of assault in 2013. The evidence showed that Father pleaded guilty to the

marijuana offense. He was sentenced to ten days in jail and had his driver’s license

suspended for six months. Mother also testified that she had been arrested for the

offense of theft of services while visiting Father in jail.




                                           11
Mental Health Issues

       Evidence was presented regarding Father’s mental health issues. Father

testified that, in the past, he had taken three different medications for “PTSD, anxiety

and sleeplessness.”    When asked if he had any mental health issues, Father

responded, “Not anymore.” He testified he was “perfectly fine” and claimed that his

doctor had taken him off all his medication. He acknowledged that he had attempted

suicide in July 2016 and that he had not been taking his medication at that time.

However, he indicated that the suicide attempt was not caused by his lack of

medication; rather, he stated that his use of illegal drugs led to the suicide attempt.

       Father testified that he had been seeing the same mental health doctor for two

years. When asked again if he was taking medication, Father testified, “I’m on

something for sleep and something for anxiety. . . . I’m off all the PTSD meds and

all that stuff.”

       Father acknowledged that he signed a family service plan (which was also

admitted into evidence) that required him to complete a psychological assessment,

but, at the time of trial, he had not completed the assessment.

       Mother also acknowledged that she had failed to complete a psychological

assessment as required by her family service plan, which was admitted into evidence.

Mother claimed that her caseworker recently told her she did not need to complete

the assessment because the case was about to go to trial.


                                           12
Recent Domestic-Violence and Alcohol Use

       In addition, the witnesses were questioned about the recent incident of

domestic violence between Father and Mother, occurring in April 2018, less than

two months before the final hearing. Mother admitted that she told the Department’s

investigator that Father had pushed her, causing her to fall into a recliner and to then

kick Father. But then Mother testified that she had lied about the incident to the

investigator. When asked why she would tell the investigator that Father had

committed family violence against her Mother responded, “Honestly, I don’t know.”

When asked if Father had been drinking on the day of the alleged incident, as Mother

had reported, she said that he had been drinking. She claimed that Father stopped

drinking after the incident.

       Mother admitted that their baby, Alex, was home at the time of the reported

incident. She acknowledged that the Department had opened a FBSS case and

developed a safety plan for Alex because of the incident, which required Father to

leave home. She acknowledged that the FBSS case regarding Alex was still open at

the time of trial.

       Mother testified that she and Father had been together for five years. When

asked if she intended to continue her relationship with him, she said that she did.

       Father acknowledged the domestic-violence incident, testifying that there was

an allegation that he or Mother or both “put [their] hands on each other.” He stated


                                          13
that, at the time of the incident, he and Mother were arguing. Father testified that

the police were called and came to their home. He also acknowledged that he had

been drinking that night but claimed that had been the only time he had consumed

alcohol in over a year and a half. Father testified that the incident was “a one-time

thing” and indicated that it occurred because he had “a couple of beers.” He said

that it would not happen again and that he had not had a drink since the incident.

      Father also acknowledged that he had been required to leave the home after

the incident and was not allowed to live there for two months. He said that he “didn’t

get to come back [home] until a week and [a] half ago.”

      Mrs. Smith testified that, on the night of the domestic-violence incident,

Mother had called her crying. Mother asked Smith to come get Alex because

“[Father] had been drinking, and they were fighting.” Smith said that she went to

the home and picked up Alex. Smith testified that this was not the first time Mother

had told her about such an incident with Father. Smith stated that Mother and

Father’s relationship was “[a]bsolutely not” a healthy one.

      When she was told that Father testified the only time he had alcohol since the

case was pending was the day of the domestic incident, Smith responded, “That’s a

lie.” She testified that she had seen Father drinking over the past two years. When

asked whether she had seen him drink excessively, Smith responded that Father

always drinks to excess.


                                         14
Condition of Mother’s and Father’s Home

      Father offered into evidence photographs of his and Mother’s home taken two

weeks before the domestic-violence incident. The photos depicted an orderly

appearing home. However, when shown the photos, Smith said that the home looked

nothing like that on the night of the incident.

      Smith said that, when she went to the house to get Alex on the night of the

incident, the home was “disgusting.” She said there was “stuff everywhere,” and

she could “barely see the floor.” Smith further testified, “There was stuff all over

the kitchen counter. There were dirty dishes that had sat on the kitchen counter so

long, there were baby roaches on it. The sink had dishes all in it. There was beer

bottles or beer cans on the floor. . . .” Smith testified that she also saw a beer can in

Alex’s “baby bed.”

      Smith indicated that she had often babysat Alex. She testified that every time

Alex came to her house she had to bathe him “[b]ecause he was filthy. There were

dead roaches in his diaper bag. He smelled like smoke.”

      Smith testified that she and her husband no longer had a relationship with

Mother and Father after the domestic-violence incident. She testified that they told

Mother that she needed to make Father leave the house. Smith testified that she and

her husband “had enough.” Smith indicated that she had not spoken to Mother since

the incident.


                                           15
Voluntary Relinquishment

      Smith also testified about the affidavits of relinquishment signed by Mother

and Father, which were admitted into evidence. In the affidavits, Mother and Father

agreed to voluntarily relinquish their parental rights to their children, Ray and Jane,

to the Smiths. Smith stated that she and her husband had hired an attorney two years

earlier to assist with adopting the children. She testified that Mother and Father told

her they wanted the adoption “[b]ecause they knew they couldn’t take care of their

kids.” However, the record shows that the adoption did not move forward. And,

while there was an indication that the Smiths had planned to intervene in the suit,

they never filed an intervention.

      Mother and Father also testified about the relinquishments.          They both

claimed that they had been told by the Smiths’ attorney that signing the affidavits

would help them get custody of their children. Smith testified that the affidavits had

not been a means for the parents to obtain custody of the children. Rather, she

testified, “Their family came to me and asked . . . me and my husband to adopt them,

because [Mother] and [Father] were not good parents.”

Parents’ Minimal Visitation

      The parents’ service plans required them to attend all visitations with Ray and

to confirm their attendance 24 hours in advance. Caseworker, C. Karachiwala,

testified that Mother and Father attended only 10 out of a possible 55 visitations with


                                          16
Ray during the case. Karachiwala stated Mother and Father provided a valid reason

for missing only two visits, but they did not notify her regarding the other missed

visits. L. Ledzinger, Ray’s guardian ad litem and court appointed special advocate

(CASA) testified that, although Mother and Father visited more regularly in 2018,

they visited Ray only twice in 2016 and only twice in 2017.

      Karachiwala testified that she took Ray to the visits with his parents. She said

Ray did not want to attend the visits and would hide behind his foster mother when

Karachiwala would pick him up. After visits, Ray would be “upset.” He would ask

why he had to go to visits. Karachiwala testified that Ray does not know Mother

and Father as his parents, and he does not call them “mom” and “dad.”

      Karachiwala testified that she attended most of the visits and that a couple of

the visits concerned her. She stated that, during the April 2018 visit, Father was

upset and walked away when Ray came up to him. She observed that Mother stayed

on her phone, and neither of them paid attention to Ray.

      Mother’s and Father’s testimony indicated that they had missed visits because

Karachiwala would not cooperate with them on scheduling visitation that worked

with their employment schedules. However, Karachiwala testified that Mother and

Father did have input into their visitation schedule, but neither had told her that their

employement schedules conflicted with visitation.




                                           17
      Mother and Father also testified that Karachiwala knew visitation was

difficult because they lived five hours away from Ray and had transportation issues.

The parents had recently acquired two vehicles but, for most of the time the case was

pending, did not have their own transportation. However, the evidence showed that

it was Mother’s and Father’s choice to move five hours away from Ray.

      Mother acknowledged that they had lived in Chambers County when the case

began. She testified that they chose to move five hours away because “it was a better

environment.” Father indicated that he believed that the small town they lived in

was a safe environment to raise children. Father stated that he and Mother were

saving to buy the house they were renting. He testified that the house was near the

school, library, and police station. Father offered photographs of the house and their

neighborhood. He also offered evidence showing that they had paid utility bills.

      The parents testified that they both worked at a restaurant that was not far

from their home. Mother works as a floor manager, and Father works as a cook.

Father indicated that these are good jobs because they provide health insurance and

a 401k plan. Mother testified that their work schedules allow for one of them to

always be home with the children.

      The Department presented evidence indicating that the parents’ lack of

visitation had detrimental effects on Ray. His foster mother, “Linda,” testified that




                                         18
the parents’ “sporadic” visitation had recently—as he had gotten older—caused Ray

“anxiety” and substantial “uncertainty.”

      In January 2018, Ray’s counselor wrote, in a letter admitted into evidence,

that she could “see apprehension in [Ray’s] eyes” when the visits with Mother and

Father approached She said, in her professional opinion, Ray’s visits with Mother

and Father were “unhealthy” for him, “confused” him, and caused him to have

“definite behaviors exhibiting anxiety and stress which are harmful for any child

especially at this age.” The counselor recommended that the visits stop until Ray

could be assessed to determine when he might be ready to visit his parents.

Ray’s Current Foster Placement

      Ray’s foster mother, Linda, testified that Ray had been placed with her family

two years before the final hearing. Linda stated that, when he came into her care,

Ray had developmental and cognitive delays. She noticed Ray had “issues with

eating, motor skills, balance, and . . . communication.” She was “really concerned”

because Ray did not have “any communication skills” so he could not tell her how

he was feeling.

      Linda testified that she had Early Childhood Intervention (ECI) evaluate Ray.

She said that Ray received therapies from ECI for one year. ECI also trained Linda

and her husband how to work with Ray on different skill sets. She said that they

continue working every day with Ray to improve his balance and motor skills.


                                           19
      Linda testified that she does not work outside the home. She stated she has

two other children, five and seven years old. She stated that she homeschools her

children part-time and that they attend school part-time. She said that she plans the

same for Ray if he remains with her family. Linda testified that she is working with

Ray while she schools her children. She said Ray is “learning his ABCs, all of his

animal sounds, numbers” and “working on colors,” learning the “developmental

skills that a preschool age child should know.” When asked whether Ray is thriving

in her care, Linda responded, “Absolutely. He’s come a long way from where he

started.”

      Linda stated that her family has a “very loving and sweet relationship” with

Ray. She said Ray “adores” her, her husband, and their other children. Linda stated

that Ray has “familiarity and comfort” with her. She said that he “feels safe and

secure” in her care. Linda testified that Ray has adjusted to her family “really well.”

She said, “As far as he knows, he’s just part of our family like the other children.”

      Linda testified that, if parental rights to Ray were terminated, she and her

husband “would love to be able to adopt [Ray] one day.” She stated that Ray is “like

our other children to us, and we treat him no differently.” She said that they have

“high expectations for his future,” and they see that Ray has “a lot of potential.” She

testified that they “would love to make [Ray] part of our family.”




                                          20
      Linda also testified that they have contact and visitations with Ray’s sibling,

Jane, and Jane’s adoptive parents. Linda indicated that they plan to continue sibling

visits between Ray and Jane.

Trial Court’s Findings and Termination Judgment

      At the end of trial, the court granted the Department’s request for termination

of the parent-child relationship between Mother and Ray and between Father and

Ray. The trial court signed a judgment terminating Mother’s and Father’s parental

rights, finding that termination was in Ray’s best interest and that Mother and Father

had each engaged in the predicate act listed in Family Code Section

161.001(b)(1)(M). Specifically, the trial court found that clear and convincing

evidence showed that Mother and Father each “had [his or her respective] parent-

child relationship terminated with respect to another child based on a finding that

[that parent’s] conduct was in violation of § 161.001 (b)(1)(D) or (E), Texas Family

Code, or substantially equivalent provisions of the law of another state. pursuant to

§ 161.001(b)(1)(M).” The trial court also appointed the Department as Ray’s

permanent managing conservator.

      Mother and Father now appeal the trial court’s judgment.

                             Commencement of Trial

      Father and Mother assert in their first issues that the case should have been

dismissed under Family Code Section 263.401(a) because the trial court did not


                                         21
timely commence trial within the one-year deadline as required by the statute. They

contend that the trial court erred when it impliedly denied Father’s April 11, 2018

motion to dismiss.5

      Because this suit was filed in February 2016, the version of Section 263.401(a)

that applies here reads as follows:

         Unless the court has commenced the trial on the merits or granted an
         extension under Subsection (b) or (b-1), on the first Monday after the
         first anniversary of the date the court rendered a temporary order
         appointing the department as temporary managing conservator, the
         court shall dismiss the suit affecting the parent-child relationship filed
         by the department that requests termination of the parent-child
         relationship or requests that the department be named conservator of
         the child.

Act of May 29, 2015, 84th Leg., R.S., ch. 944, § 38, sec. 263.401, 2015 Tex. Sess.

Law Serv. 3268, 3283 (amended 2017; current version at TEX. FAM. CODE

§ 263.401(a)). 6


5
      The record reflects that on April 12, 2018 the trial court signed an order on the
      motion to dismiss. The order offered a choice of granting or denying the motion,
      but the trial court did not select either choice when signing the order; thus, the
      motion was neither granted nor denied. The next day the trial court made a notation
      on another copy of the signed order, indicating that the order had previously been
      signed “in error” and stating, “case now pending in CPS court.”
6
      In 2017, the legislature amended Section 263.401(a), making the statutory deadlines
      set out in that provision jurisdictional. Act of May 28, 2017, 85th Leg., R.S., ch.
      319, § 12, sec. 263.401, 2017 Tex. Sess. Law Serv. 716, 721 (codified at TEX. FAM.
      CODE § 263.401(a)). The effective date of the amendment was September 1, 2017.
      Id. § 34, at 735. The 2017 changes to Section 263.401 “apply only to a suit affecting
      the parent-child relationship filed on or after the effective date of this Act. A suit
      affecting the parent-child relationship filed before the effective date of this Act is
      governed by the law in effect on the date the suit was filed, and the former law is
                                            22
        The trial court signed a temporary order, appointing the Department as

temporary managing conservator, on February 11, 2016. In November 2017, the

trial court signed a “Permanency Hearing Order Before Final Order,” stating that the

one-year dismissal date for the case was February 13, 2017; that is, trial needed to

commence by February 13, 2017 or the case would be subject to dismissal. See id.

Although the parents assert that trial on the merits did not commence until the final

hearing on June 18, 2018, the record shows that trial commenced on January 17,

2017.

        On January 17, 2017, the case was called to trial. The trial court stated,

“Everyone raise your right hand who’s going to testify, and let’s get

announcements.” The witnesses were then sworn. The trial court asked again for

announcements. The Department’s attorney, Mother’s attorney, Father’s attorney,

Ray’s attorney ad litem, and the guardian ad litem from CASA all announced they

were “ready” to proceed. The attorney for the would-be intervenors, the Smiths, was

also in court. He too announced “ready.” The Department’s attorney objected to

the Smith’s counsel “doing any question and answer” of the witnesses because the




        continued in effect for that purpose.” Id. § 33, at 738. Because this suit was filed
        in 2016, the 2015 version of Section 263.401 applies, not the 2017 amendments.
        See id.; see also In re T.W., 557 S.W.3d 841, 843 n.2, 844 (Tex. App.—Amarillo
        2018, pet. denied) (holding 2017 amendments to Section 263.401 did not apply to
        suit filed in 2016).

                                             23
Smiths had not filed an intervention. The trial court responded that the Smiths’

attorney had “just asked” to file the intervention. The trial court then told the

Department to call its first witness. The Department called caseworker Karachiwala,

who briefly testified before the trial court recessed.

      The parents support their contention that trial did not commence on January

17, 2017 by asserting that “the parties were instructed they did not have to be

present” on that day, and “it was clear from announcements that it was planned that

the case would not proceed to trial and that other than the caseworker only attorneys

were going to be present.” These assertions are based on a remark made by the

would-be intervenors’ attorney. When asked by the trial court if the intervenors

were in court, the Smith’s attorney responded, “They’re not here, your Honor. I

believe they were told they didn’t need to come to this hearing last time. It was

going to be attorneys only.”

      We agree with the Department that this single, somewhat equivocal, statement

of second-hand information by a non-party’s lawyer does not establish that it was

never the intent to proceed with trial that day. To the contrary, the record shows that

the trial court’s “Permanency Hearing Order Before Final Order” set the case for

trial in early January 2017. After the case was called for trial on January 17, 2017,

the trial court stated, “Everyone raise your right hand who’s going to testify, and

let’s get announcements.” Witnesses were sworn, and the parties (and the CASA


                                           24
guardian ad litem) all announced they were “ready” to proceed. After the Smiths’

attorney announced he was also ready to proceed, the Department’s attorney

objected to the not-yet intervenors participation in witness questioning.      This

objection indicated that questioning of one or more witnesses was anticipated that

day. Finally, a witness for the Department briefly testified before the trial court

recessed.

      We conclude that the record contains sufficient information to establish that

trial on the merits commenced on January 17, 2017. See In re R.F., Jr., No. 04–17–

00582–CV, 2018 WL 1308542, at *1 (Tex. App.—San Antonio Mar. 14, 2018, no

pet.) (mem. op.) (holding trial commenced for purposes of Section 263.401 when

record showed parties had made announcements, trial court denied motion for

continuance, and the Department called a witness, who offered brief testimony

before trial court recessed); In re D.S., 455 S.W.3d 750, 753 (Tex. App.—Amarillo

2015, no pet.) (suggesting “commencement of trial” means, at a minimum, that

parties have been asked to make their respective announcements, and trial court has

ascertained whether any preliminary matters need to be considered). Because the

record adequately demonstrates that trial commenced before the one-year deadline

found in Former Section 263.401(a), the trial court did not err by impliedly denying

Father’s motion to dismiss.




                                        25
      We overrule Mother’s and Father’s first issues.7

                             Sufficiency of the Evidence

      In his second issue, Father challenges the sufficiency of the evidence

supporting the trial court’s statutory predicate finding underlying termination of his

parental rights. In his third issue and Mother’s second issue, Father and Mother

challenge the sufficiency of the evidence supporting the trial court’s respective best-

interest findings.

A.    Standards of Review

      Termination of parental rights requires proof by clear and convincing

evidence. See TEX. FAM. CODE § 161.001(b). This heightened standard of review is

mandated not only by the Family Code but also by the Due Process Clause of the

United States Constitution. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). The

Family Code defines clear and convincing evidence as “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;

see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).




7
      The Department asserts that Mother did not preserve this issue because she did not
      file her own motion to dismiss. Because we have determined that the trial court did
      not err in impliedly denying Father’s motion, whether she preserved the issue or not,
      Mother’s issue is overruled.
                                           26
      Family Code Section 161.001(b) provides that “the [trial] court may order

termination of the parent-child relationship if the court finds by clear and convincing

evidence” that (1) one or more of the acts enumerated in section 161.001(b)(1) was

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

CODE § 161.001(b)(1)–(2). Although termination may not be based solely on the

best interest of the child as determined by the trier of fact, Tex. Dep’t of Human

Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987), “[o]nly 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 355, 362 (Tex. 2003). Thus, if multiple predicate grounds are found by the

trial court, and termination is found to be in the best interest of the child, we will

affirm on any one predicate ground because only one is necessary for termination of

parental rights. In re G.A.A., No. 01–12–01052–CV, 2013 WL 1790230, at *7 (Tex.

App.—Houston [1st Dist.] Apr. 25, 2013, no pet.) (mem. op.). Here, the Department

was required to establish, by clear and convincing evidence, that Mother’s and

Father’s actions satisfied one of the predicate grounds listed in Family Code Section

161.001(b)(1) and that termination was in Ray’s best interest. See TEX. FAM. CODE

§ 161.001(b)(1)–(2).

      When determining legal sufficiency, we review all the evidence in the light

most favorable to the trial court’s finding “to determine whether a reasonable trier


                                           27
of fact could have formed a firm belief or conviction that its finding was true.” In

re J.F.C., 96 S.W.3d at 266. To give appropriate deference to the fact finder’s

conclusions, we must assume that the fact finder resolved disputed facts in favor of

its finding if a reasonable fact finder could do so. Id. We disregard all evidence that

a reasonable fact finder could have disbelieved or found to have been not credible.

Id. This does not mean that we must disregard all evidence that does not support the

finding. Id. The disregard of undisputed facts that do not support the finding could

skew the analysis of whether there is clear and convincing evidence. Id. Therefore,

in conducting a legal-sufficiency review in a parental-termination case, we must

consider all the evidence, not only that which favors the verdict. See City of Keller

v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).

      In determining a factual-sufficiency point, the higher burden of proof in

termination cases also alters the appellate standard of review. In re C.H., 89 S.W.3d

17, 25–26 (Tex. 2002). “[A] finding that must be based on clear and convincing

evidence cannot be viewed on appeal the same as one that may be sustained on a

mere preponderance.” Id. at 25. In considering whether evidence rises to the level

of being clear and convincing, we must consider whether the evidence is sufficient

for the fact finder to reasonably form a firm belief or conviction as to the truth of the

allegation sought to be established. Id. We consider whether disputed evidence is

such that a reasonable factfinder could not have resolved that disputed evidence in


                                           28
favor of its finding. In re J.F.C., 96 S.W.3d at 266. “If, in light of the entire record,

the disputed evidence that a reasonable factfinder could not have credited in favor

of the finding is so significant that a factfinder could not reasonably have formed a

firm belief or conviction, then the evidence is factually insufficient.” Id.

      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). The fact finder is the sole arbiter when assessing the credibility and

demeanor of witnesses. Id. at 109.

      We are mindful that the natural rights that exist between parents and their

children are of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.

1985). Therefore, termination proceedings should be strictly scrutinized, and the

involuntary termination statutes should be strictly construed in favor of the parent.

Id. at 20–21; see also In re E.R., 385 S.W.3d 552, 563 (Tex. 2012). However, “[j]ust

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.” C.H., 89 S.W.3d at 26; see

also In re E.C.R., 402 S.W.3d 239, 240 (Tex. 2013).

B.    Subsection (M) Finding

      In his second issue, Father challenges the sufficiency of the evidence to

support the trial court’s finding under Family Code Subsection 161.001(b)(1)(M).


                                           29
Father asserts that the trial court should not have permitted the Department to use

the Harris County decree—terminating Father’s parental rights to Jane—and this

Court’s judgment—affirming the Harris County decree—to prove the elements of

Subsection (M).

      Family Code Subsection 161.001(1)(b)(M) provides that the trial court may

terminate the parent-child relationship if the parent has “had his or her parent-child

relationship terminated with respect to another child based on a finding that the

parent’s conduct was in violation of Paragraph (D) or (E) or substantially equivalent

provisions of the law of another state.” TEX. FAM. CODE § 161.001(b)(1)(M). Here,

the Harris County decree contains a finding that Father endangered Jane both by

placing her in unsafe conditions under Subsection 161.001(b)(1)(D) and by engaging

in endangering conduct under Subsection 161.001(b)(1)(E). Father appealed the

decree to this Court, and we affirmed.

      At trial, the Department offered into evidence a certified copy of the Harris

County decree and a copy of this Court’s judgment affirming the decree. Father’s

counsel objected to both the decree and our judgment. Without further explanation

or argument, Father objected that the “proper predicate” had not been laid for either

the Harris County decree or our judgment to be admitted. The trial court overruled

the objections and admitted the decree and our judgment into evidence.




                                         30
      On appeal, Father disputes whether the Harris County decree and our

judgment affirming the decree could be used to prove that Father’s parental rights to

Jane were previously terminated under Subsections (D) and (E). He points out that

his petition for discretionary review of this Court’s judgment was still pending in the

Supreme Court of Texas on the day that the trial court signed the judgment in this

case. The supreme court denied his petition for review four days after the trial court

signed its judgment in this case. Although he made no mention of the pending

petition for review in the trial court, Father now asserts that, because the petition for

review was pending in the supreme court, the Harris County decree, and hence the

termination regarding Jane, was not final and could not be used to support

termination in this case under Subsection (M).

      As part of this issue, Father asserts that the trial court should have granted his

failure-to-lay-proper predicate objection to the Harris County decree and to our

judgment because the Department did not show that the decree was final. However,

Father neither mentioned the pending petition for review in the trial court, nor did

he argue that the Department had not laid the proper predicate because the petition

for review was pending. Instead, Father generally objected that the proper predicate

had not been laid.

      To preserve a complaint for appellate review, a party must state an objection

clearly and with sufficient specificity to make the trial court aware of the particular


                                           31
grounds for the complaint. See TEX. R. APP. P. 33.1(a); McKinney v. Nat’l Union

Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989). Here, Father’s general objection that

the Department had not laid a proper predicate was not specific enough to preserve

the alleged error he now complains of on appeal. See Walden v. City of Longview,

855 S.W.2d 875, 878 (Tex. App.—Tyler 1993, no writ) (holding objection that party

failed to lay proper predicate for introduction of statement into evidence was too

general to preserve error); see also Schreiber v. Cole, No. 07-13-00361-CV, 2015

WL 2400242, at *5 (Tex. App.—Amarillo May 19, 2015, no pet.) (mem. op.)

(holding that objection that evidence was inadmissible because “it’s not been proved

up” was not specific enough to preserve error).

      We must also address Father’s assertion that the Harris County decree and our

judgment are insufficient evidence to establish the prior termination of Father’s

parental rights to Jane because the Harris County decree was not final until the

supreme court denied Father’s petition for review. We addressed a nearly identical

issue in In re A.C., 394 S.W.3d 633 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

      There, a mother claimed that a decree, terminating her parent-child

relationship with other children based on findings that she violated Subsections (D)

and (E), could not be used to establish the Subsection (M) ground because the prior

termination decree was pending on appeal and therefore not necessarily final. Id. at

640. We recognized that “finality, in the sense of a complete exhaustion or waiver


                                        32
of all possible appellate remedies, is not expressly required by the text” of

Subsection (M). Id. We also recognized that the “mother’s appeal of the prior

termination decree did not suspend the effect of that decree.” Id. (citing TEX. FAM.

CODE § 109.002(c) (“An appeal from a final order, with or without a supersedeas

bond, does not suspend the order unless suspension is ordered by the court rendering

the order.”)).   We determined that “the prior termination decree effectively

terminated [the mother’s] parent-child relationship at and as of the time of the trial,

despite the fact that the order was still subject to review on appeal.” Id. at 640–41

(citing Street v. Honorable Second Court of Appeals, 756 S.W.2d 299, 302

(Tex.1988) (acknowledging that “a trial court judgment is final for the purposes of

issue preclusion or collateral estoppel despite the pendency of an appeal”)).

      We then set out our holding as follows:

      The trial court admitted into evidence a prior decree that ordered
      termination of the mother’s rights for reasons of endangerment under
      subsections (D) and (E). Just as a trial court’s judgment is effective for
      purposes of precluding relitigation between the same parties on the
      same issues, the judgment is also effective for the purpose of presenting
      evidence to the factfinder of a prior termination. We hold that the statute
      requires no greater finality than this, and accordingly there was legally
      sufficient evidence to show that the mother had her rights terminated as
      to other children for purposes of section 161.001(1)(M).

Id. at 641. Based on our decision in In re A.C., we hold that the evidence is legally

and factually sufficient to support the trial court’s Subsection (M) finding,

supporting termination of Father’s parental rights to Ray.


                                          33
      We overrule Father’s second issue.

C.    Best-Interest Findings

      In Father’s third issue, and in Mother’s second issue, each parent challenges

the legal and factual sufficiency of the evidence to support the trial court’s finding

that termination of the parent-child relationship was in Ray’s best interest.

      1.     Applicable Legal Principles

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

by preserving the parent-child relationship. See In re R.R., 209 S.W.3d 112, 116

(Tex. 2006). In Holley v. Adams, the Supreme Court of Texas identified factors that

courts may consider when determining the best interest of the child, including:

(1) the desires of the child; (2) the emotional and physical needs of the child now

and in the future; (3) the emotional and physical danger to the child now and in the

future; (4) the parental abilities of the individual seeking custody; (5) the programs

available to assist these individuals to promote the best interest of the child; (6) the

plans for the child by the individuals or by the agency seeking custody; (7) the

stability of the home or proposed placement; (8) the acts or omissions of the parent

that may indicate that the existing parent-child relationship is not a proper one; and

(9) any excuse for the acts or omissions of the parent. 544 S.W.2d 367, 371–72

(Tex. 1976). This is not an exhaustive list, and a court need not have evidence on

every element listed to make a valid finding as to the child’s best interest. In re C.H.,


                                           34
89 S.W.3d at 27. While no one factor is controlling, analysis of a single factor may

be adequate in a particular situation to support a finding that termination is in the

best interest of the child. In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—Houston

[1st Dist.] 2017, pet. denied) (citing In re A.P., 184 S.W.3d 410, 414 (Tex. App.—

Dallas 2006, no pet.)). We may also consider the statutory factors found in Family

Code Section 263.307. See TEX. FAM. CODE § 263.307; In re A.C., 560 S.W.3d 624,

631 n.29 (Tex. 2018); In re C.A.G., No. 01-11-01094-CV, 2012 WL 2922544, at *6

(Tex. App.—Houston [1st Dist.] June 12, 2012, no pet.) (mem. op.).

      The evidence supporting the predicate grounds for termination may also be

used to support a finding that the best interest of the child warrants termination of

the parent-child relationship. C.H., 89 S.W.3d at 28; J.M.T., 519 S.W.3d at 269.

Furthermore, in conducting the best-interest analysis, a court may consider not only

direct evidence but also may consider circumstantial evidence, subjective factors,

and the totality of the evidence. See J.M.T., 519 S.W.3d at 269.

      2.     Analysis8

      We first observe that, because he was three years old at the time of trial, Ray

was too young to testify about his desires. See Holley, 544 S.W.2d at 371–72 (factor

one). However, the evidence indicates that Ray is not bonded with his parents. The



8
      We have detailed and summarized much of the evidence presented at trial in the
      background section above.
                                         35
evidence, including the testimony of caseworker Karachiwala and Ray’s foster

mother, shows that Ray is apprehensive about his visits with Mother and Father and

displays anxiety after the visits. The counselor, who had been seeing Ray for six

months, wrote in a January 2018 letter that she believed Ray’s visits with his parents

should be suspended until a further assessment could be made. She indicated that,

given Ray’s apprehension regarding the visits, she feared that the visits could be

harmful to him. See TEX. FAM. CODE § 263.307(b)(5) (listing as best-interest

consideration: whether child is fearful of living in or returning to child’s home).

        In contrast, the evidence shows that Ray is strongly bonded with his foster

family with whom he has lived for two-thirds of his life. See In re J.D., 436 S.W.3d

105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“When children are too

young to express their desires, the factfinder may consider that the children have

bonded with the foster family, are well-cared for by them, and have spent minimal

time with a parent.”). Evidence regarding Ray’s foster family is supportive of the

best-interest findings under the following Holley factors: the current and future

physical and emotional needs of the child, the parental abilities of the person seeking

custody, whether programs are available to assist the person seeking custody in

promoting the best interests of the child, and the plans for the child by the person

seeking custody. See Holley, 544 S.W.2d at 371–72 (factors two, four, five, and

six).


                                          36
      The evidence demonstrates that Ray is thriving in foster care and that his

foster parents have actively sought to meet his needs, including taking steps to

remedy Ray’s developmental delays through the ECI program. The evidence shows

that the foster parents are providing a stable and loving home for Ray and that they

treat him like one of their own children. The evidence also shows that Ray’s foster

family wishes to adopt him and plans to assist Ray in continuing a relationship with

his sister, Jane, and her adoptive family. See In re Z.C., 280 S.W.3d 470, 476 (Tex.

App.—Fort Worth 2009, pet. denied) (stating that stability and permanence are

important to upbringing of a child and affirming finding that termination was in

child’s best interest when child was thriving in foster care); In re U.P., 105 S.W.3d

222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (considering child’s

bond with foster family in reviewing best-interest determination).

      An inference can reasonably be made that Ray’s weak bond with his parents

is due, in part, to Father’s and Mother’s minimal and sporadic visitation with Ray

during the pendency of the case. The parents’ minimal visitation and lack of an

emotional bond with Ray is relevant not only to the Mother’s and Father’s parental

abilities but also to the emotional and physical needs of Ray now and in the future

and to determining whether the parent-child relationship is not a proper one. Holley,

544 S.W.2d at 371–72 (factors two, four, and eight).




                                         37
      Over the pendency of the case, the parents attended only 10 out of a possible

55 visits with Ray. They provided Karachiwala with valid reasons for missing only

two of the visits. CASA guardian ad litem Ledzinger testified that, although they

visited more often in 2018, Mother and Father visited Ray only twice in 2016 and

only twice in 2017. The evidence showed that, on their most recent visit with Ray

in April 2018, neither Mother nor Father paid much attention to Ray.

      The parents indicated that one of the reasons for the sporadic visitation was

Karachiwala’s failure to work with them on setting visitation that did not conflict

with their employment schedules. See Holley, 544 S.W.2d at 371–72 (factor nine:

any excuse for acts or omissions of the parent). However, Karachiwala testified that

she had asked for input from Mother and Father regarding setting the visitation

schedule.

      Mother and Father also indicated that they missed visits with Ray because

they lacked transportation for much of the pendency of the case to travel five hours

from their home to visit Ray. See id. But the evidence also showed that the parents

had voluntarily made the choice to live five hours away from Ray. Father indicated

that he liked the small-town atmosphere where they lived and believed it was a safe

environment to raise children. Mother testified that they chose to live five hours

from Ray’s placement because “it was a better environment” for her and “for




                                        38
everybody.” She agreed that “any hardships” she experienced travelling five hours

to visit Ray was something she chose to do.9

      The parents testified that both have jobs at a local restaurant that provides

health insurance, a 401k plan, and a flexible schedule so that they do not need

childcare. But neither parent testified why they could not live in a small town, and

find a similar employment situation, closer to Ray to make it easier for them to visit

him regularly and to form relationship with him.

      Of significance, the evidence also showed an incident of domestic violence

between Mother and Father less than two months before trial. Mrs. Smith testified

that, at the time of the incident, Mother had called her, crying. Mother told her that

she and Father were fighting, and that Father had been drinking. Smith indicated

that there had been similar incidents between Mother and Father in the past. Mother

asked Smith to come pick up six-month-old Alex. The police were called and came

to the home.

      Mother acknowledged that she told the Department’s investigator that Father

had committed domestic violence against her by pushing her and that she fell into a

reclining chair. She said that she had then accidently kicked Father. However, at

trial, Mother claimed that she had lied to the investigator, saying that she did not


9
      The record indicates that Mother’s sister, with whom Ray was placed at the
      beginning of the case, lives in the area. But, when questioned about the issue,
      neither parent testified that was the reason they lived where they did.
                                         39
know why she had made the statement to the investigator. On the other hand, Father

acknowledged that the incident occurred, testifying that it was “a one-time thing”

and indicating that it had occurred because he had been drinking. Both parents also

acknowledged that, because of the reported incident, an FBSS case was opened and

a safety plan was developed for Alex. The FBSS case remained open at the time of

trial. As part of the safety plan, Father was required to leave the home and had only

recently been permitted to return. Mother also testified that she planned to remain

in a relationship with Father.

      Evidence of domestic violence in the home is supportive of a trial court’s best-

interest finding under the third, fourth, and seventh Holley factors: the emotional and

physical danger to the child now and in the future, parental abilities, and stability of

the home. See Holley, 544 S.W.2d at 371–72. The evidence also showed that Father

had been convicted of felony assault in 2013. “Evidence that a person has engaged

in abusive conduct in the past permits an inference that the person will continue

violent behavior in the future.” Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied). Thus, given the evidence of domestic

violence against Mother and Father’s past felony conviction, the trial court was

permitted to infer that Father would continue his abusive behavior in the future,

further supporting the best-interest finding. See TEX. FAM. CODE § 263.307(b)(7),

(12)(D)–(E) (providing that courts may consider whether there is history of abusive


                                          40
or assaultive conduct by child’s family or others who have access to child’s home

and whether adequate parenting skills are demonstrated by providing child with a

safe physical home environment and protection from repeated exposure to violence);

In re J.I.T.P., 99 S.W.3d 841, 846 (Tex. App.—Houston [14th Dist.] 2003, no pet.)

(stating domestic violence, even when child is not intended victim, supports finding

that termination is in child’s best interest).

      In addition, parental substance abuse reflects poor judgment and may be a

factor to consider in determining a child’s best interest. See In re J.M., No. 01-14-

00826-CV, 2015 WL 1020316, at *7 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015,

no pet.) (mem. op.); see also TEX. FAM. CODE § 263.307(b)(8) (stating courts may

consider history of substance abuse by child’s family or others who have access to

child’s home). Here, Smith indicated that she had observed Father drink excessively

during the past two years. And Father’s own testimony indicated that the domestic-

abuse incident occurred because he had been drinking. However, Father’s and

Mother’s testimony also indicated that Father did not drink excessively. Father

testified that he had not had a drink since the domestic abuse incident.

      We note that “[i]t is well established that, in a bench trial, the judge as the trier

of fact weighs the evidence, assesses the credibility of witnesses and resolves

conflicts and inconsistencies.” In re D.D.D.K., No. 07-09-0101-CV, 2009 WL

4348760, at *6 (Tex. App.—Amarillo Dec. 1, 2009, no pet.) (mem. op.). Thus, the


                                            41
trial court was free to disbelieve the parents’ testimony, including their testimony

downplaying Father’s alcohol consumption, and to believe Smith’s testimony

regarding her observations.

      In addition to Father’s drinking, the Department presented evidence regarding

Mother’s and Father’s illegal drug use both before Ray’s birth and during the

pendency of the case. Evidence relating to Mother’s and Father’s past involvement

with illegal drugs supported the trial court’s best-interest finding under the following

Holley factors: the emotional and physical needs of Ray now and in the future and

the emotional and physical danger to Ray now and in the future. See Holley, 544

S.W.2d at 371–72; see also In re J.M., 2015 WL 1020316, at *7 (considering that

parent’s drug use is condition that can indicate instability in home).

      Mother admitted that she used marijuana while pregnant with Ray. The

evidence showed Mother tested positive for marijuana when she was 20-weeks

pregnant with Ray. Mother claimed, however, that she did not know she was

pregnant at the time. She also claimed that she quit using marijuana when she

learned that she was pregnant. Mother admitted that she continued to use marijuana

and synthetic marijuana after Ray was born and during the pendency of this case.

She testified that she last had a positive drug test in October 2015, and the

Department offered no evidence to contradict her testimony. In addition, Mother




                                          42
offered into evidence a certificate showing that she had completed an outpatient drug

treatment program.

      Father also testified that he used marijuana with Mother while she was

pregnant with Ray, and he acknowledged that he tested positive for synthetic

marijuana several times “at the start of [Ray’s] case.” Father was charged with

misdemeanor offense of possession of marijuana in March 2016. Father pleaded

guilty to the misdemeanor offense and received 10 days in jail. Father admitted to

using marijuana during the pendency of the case in the summer of 2016 and to using

ecstasy “once or twice” during that time. And his testimony indicated that he had

also used cocaine around that time. Father also admitted that, a month after Jane

was born in May 2016, he had used benzodiazepine, marijuana, amphetamine, and

methamphetamine.       An entry from October 2016 on Mother’s service plan

evaluation, admitted into evidence, indicates that the Department was concerned

because Mother continued to live with Father even though he was “refusing to take

his urine tests,” indicating that Father had been refusing drug testing at that time.

      At trial, Father claimed that he had not used drugs or had a positive drug test

for about two years. And he offered into evidence a certificate showing that he had

completed an outpatient drug treatment program in May 2017. However, evidence

of Father’s past drug use, coupled with evidence that Father has been known to drink

to excess in the last two years, supports an inference that Father is at risk for


                                          43
continuing substance abuse. See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San

Antonio 2013, pet. denied) (recognizing that trial court may measure a parent’s

future conduct by his past conduct). As mentioned, Mother testified that she plans

to remain with Father, which could expose Ray to potential endangerment by Father.

See In re K.C.F., No. 01-13-01078-CV, 2014 WL 2538624, at *19 (Tex. App.—

Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.) (concluding that, although he

had addressed his own drug addiction, fact that father continued to stay with mother,

who continued to use illegal drugs, supported trial court’s finding that terminating

father’s parental rights was in children’s best interest).

      Also, relating to Father’s parenting abilities and the stability of the home, we

consider the Father’s mental health issues. Father testified that in the past he had

taken three different medications for “PTSD, anxiety and sleeplessness.” When

asked if he had any mental health issues, Father responded, “Not anymore.” At first,

he testified that he was “perfectly fine” and claimed that his doctor had taken him

off all his medication. He acknowledged that he had attempted suicide in July 2016

and that he had not been taking his medication at that time. However, he indicated

that the suicide attempt was not caused by his lack of medication; rather, he stated

that his use of illegal drugs led to the suicide attempt.

      Although he testified that he had been seeing the same mental health doctor

for two years, Father provided no documentation related to his mental health


                                           44
treatment. When asked again if he was taking medication, Father answered that he

was taking “something for sleep and something for anxiety,” but he stated that he

was “off all the PTSD meds and all that stuff.” Father acknowledged that he had not

undergone the psychological assessment required by his family service plan.

      While mental illness is not a ground for parental termination, the impact of a

parent’s mental illness on his ability to parent and the stability of the home are

relevant factors in the best interest of the child analysis. See In re T.M.D., No. 01–

13–00970–CV, 2014 WL 1803004, at *9 (Tex. App—Houston [1st Dist.] May 6,

2014, no pet.) (mem. op.); see also Adams v. Tex. Dep’t of Family & Protective

Servs., 236 S.W.3d 271, 281 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(considering mother’s potential failure to continue taking medication prescribed for

mental illness as factor in best-interest analysis). Here, evidence showed that Father

has a history of mental illness and that he attempted suicide during the pendency of

the case. Father testified that he is being treated for his mental illness, yet he failed

to comply with the requirement in his service plan to complete a mental health

assessment.    Further, Father’s testimony regarding whether he needs to take

medication for his mental illness and whether he is taking medication is unclear.

From this evidence, the trial court could have inferred that Father is not receiving

adequate treatment for his mental health issues, potentially subjecting Ray to

uncertainty and instability. See In re T.M.D, 2014 WL 1803004, at *9.


                                           45
      Further, “[e]vidence of unsanitary conditions of a home may support the trial

court’s best-interest finding.”   In re S.T.G., No. 04-17-00837-CV, 2018 WL

1935488, at *2 (Tex. App.—San Antonio Apr. 25, 2018, no pet.). Father offered

photographs of their home, depicting it to be in an orderly condition. The parents

also point out that Karachiwala responded affirmatively when asked whether the

courtesy caseworkers, who went to parents’ home every month, had reported that

“there was no problem” and “the house was sufficient.” However, Smith testified

that, two weeks after Father’s photos were taken, she observed the parents’ home to

be dirty and unsanitary. Smith testified that the home was “disgusting,” and she

could barely see the floor. She said, “There was stuff all over the kitchen counter.

There were dirty dishes that had sat on the kitchen counter so long, there were baby

roaches on it.” Smith also testified that there were beer cans on the floor and a can

of beer in Alex’s crib. She also testified that, when she babysat Alex, she always

had to bathe him when he was dropped off at her home because he would be filthy

and smelled like smoke. Smith stated that she would find dead roaches in Alex’s

diaper bag.

      Also, the evidence showed that Mother had not recently permitted the

Department’s representatives into her home. Mother agreed that, the same month as

the final hearing, she had been “extremely aggressive” with a CPS investigator when

she came to Mother’s home. Mother agreed that, even though she had a duty under


                                         46
her service plan to cooperate with the investigator, she had told the investigator to

“get out of my fucking home.” See TEX. FAM. CODE § 263.307(b)(10) (permitting

consideration of willingness of child’s family to cooperate with and facilitate an

appropriate agency’s close supervision). This also occurred even though Mother

still has an open FBSS case with the Department regarding Alex, resulting from the

domestic-abuse incident.

      We acknowledge that some evidence exists in the record weighing against the

best-interest findings. The record contains evidence showing that Mother and Father

have taken steps to improve their lives and to be good parents. Mother and Father

point to evidence showing that they had mostly complied with their service plans,

they have cared for Mother’s three older children since August 2017 without

incident, they have a home near amenities, they are employed, the visits they did

attend with Ray were appropriate, and they have plans to care for Ray. Nonetheless,

evidence cannot be read in isolation; it must be read in the context of the entire

record. See In re K.C.F., 2014 WL 2538624, at *16. In termination cases, like

elsewhere, it is within the sole province of the fact finder to weigh the credibility of

witnesses. See In re S.L., 188 S.W.3d 388, 394 (Tex. App.—Dallas 2006, no pet.)

(citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)

(stating fact finder “is the sole judge of the credibility of witnesses and the weight

to be given to their testimony”)). Here, the balance of the record evidence reveals


                                          47
that Mother and Father are unable to meet the current and future physical and

emotional needs of Ray; are unable to protect Ray from current and future emotional

and physical danger; lack parental abilities; and lack stability.

      After viewing all the evidence in the light most favorable to the best-interest

findings, we conclude that the evidence was sufficiently clear and convincing that a

reasonable factfinder could have formed a firm belief or conviction that termination

of the parent-child relationship between Mother and Ray and between Father and

Ray was in Ray’s best interest. We also conclude that, viewed in light of the entire

record, any disputed evidence could have been reconciled in favor of the trial court’s

findings that termination of the parent-child relationship between Mother and Ray

and between Father and Ray was in Ray’s best interest or was not so significant that

the trial court could not reasonably have formed a firm belief or conviction that

termination was in Ray’s best interest. Therefore, after considering the relevant

factors under the appropriate standards of review, we hold the evidence is legally

and factually sufficient to support the trial court’s finding that termination of the

parent-child relationship between Mother and Ray and between Father and Ray was

in Ray’s best interest.

      We overrule Mother’s second issue and Father’s third issue.




                                          48
D.    Permanent Managing Conservatorship Following Termination

      In his fourth issue, Father asserts that the trial court erred in appointing the

Department as Ray’s permanent managing conservator.

      When the parental rights of all living parents of a child are terminated, the

trial court must appoint a “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); see In re J.D.G., No. 01-18-00578-CV, 2018 WL

6520345, at *12 (Tex. App.—Houston [1st Dist.] Dec. 11, 2018, no pet. h.).

Conservatorship determinations are reviewed for an abuse of discretion and will be

reversed only if the decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d

611, 616 (Tex. 2007); In re A.C., 394 S.W.3d 633, 644 (Tex. App.—Houston [1st

Dist.] 2012, no pet.).

      An order terminating the parent-child relationship divests a parent of legal

rights and duties with respect to the child. See TEX. FAM. CODE § 161.206(b). Once

we overrule a parent’s challenge to an order terminating her parental rights, the trial

court’s appointment of the Department as sole managing conservator may be

considered a “consequence of the termination.” In re D.K.W., Jr., No. 01-17-00622-

CV, 2017 WL 6520439, at *5 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet.

denied) (mem. op.). (quoting In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston

[14th Dist.] 2008, pet. denied)).


                                          49
      Because we have overruled Father’s challenge to the portion of the trial

court’s order terminating his parental rights, the order has divested Father of his legal

rights and duties related to Ray. See TEX. FAM. CODE § 161.206(b). Therefore,

Father does not have standing to challenge the portion of the order appointing the

Department as Ray’s conservator. See In re J.D.G., 2018 WL 6520345, at *12; see

also E.A. v. Texas Dep’t of Fam. & Protective Servs., No. 03-15-00811-CV, 2016

WL 1639847, at *4 (Tex. App.—Austin Apr. 21, 2016, pet. denied) (mem. op.)

(affirming termination of mother’s parental rights and holding that mother, who had

been divested of her legal rights to child, could not challenge conservatorship

determination).

      We overrule Father’s fourth issue.

                                      Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Keyes, Higley, and Landau.

Landau, J., dissenting. Dissenting opinion to follow.




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