




Affirmed and Opinion filed April 2, 2009







Affirmed and Opinion filed April 2, 2009.
 
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-08-00360-CV
____________
 
IN THE INTEREST OF C.A.B.
 
 

 
On Appeal from the 314th
District Court
Harris County, Texas
Trial Court Cause No. 2007-03016J
 

 
O P I N I O N
This case is an accelerated appeal from a trial court=s judgment
terminating both a mother=s and a father=s parental rights
to a minor child and granting the child=s maternal
great-grandparents joint managing conservatorship.  The mother and father each
claim the evidence is legally and factually insufficient to support the trial
court=s termination of
their parental rights.  Each also contests the conservatorship order.  We
affirm.
 
 
 




I.  Factual and Procedural Background
On March 28, 2007, appellant Aja gave birth to her
daughter, C.A.B. (hereinafter AClara@).[1] 
Shortly after Clara=s birth, hospital staff contacted the
Texas Department of Family and Protective Services (hereinafter the ADepartment@) to report an
incident involving Aja=s interaction with Clara.  Appellant
James, Clara=s father, was present during the incident.  The
Department=s report concerning the incident provides in relevant
part:
On March 28, 2007, the [Department]
received a report alleging Physical Neglect and Neglectful Supervision of
newborn [Clara] (DOB: 3/28/2007) by the child=s mother [Aja].  .
. .  The report went on to state that hospital staff was concerned as to [Aja=s] ability to
adequately care for the child after observing [Aja] attempting to force the
child to consume ice chips shortly after the infant=s birth.  The
report stated that when [Aja] was confronted by hospital staff regarding her
behavior, she stated that she was attempting to Ashock@ the infant in
order to see the color of the child=s eyes.  The
report further stated that prior to this incident, [Aja] was observed Atrying to pry open@ the infant=s eyes with her
hands in an attempt to see the child=s eye color.  The
report continued by stating that [Aja] informed hospital staff that she had
three alter [sic] personalities as part of her dissociative identity disorder. 
The report concluded by stating that hospital staff at UTMB was also concerned
in regard to the child=s alleged father, [James], as he did not
appear protective of his daughter during these incidents. 
Two
days later, the Department initiated emergency, temporary custody proceedings. 
The trial court appointed the Department temporary sole managing conservator of
Clara.




Both parents appeared at a hearing on April 12, 2007,
during which the trial court appointed the Department as the child=s temporary
conservator.  The trial court ordered both Aja and James to comply with the
requirements of any service plan issued during the case.  Specifically, the
trial court ordered Aja to participate in a psychiatric evaluation and to
successfully complete all recommendations.  The trial court also ordered both
parents to submit to drug tests.[2] 
The same day, Clara was placed in the physical custody of her maternal
great-grandparents, intervenors Betty and Richard.  Clara has remained in their
care.
Twice, in May 2007 and September 2007, the trial court
ordered Aja and James each to comply with additional temporary orders,
including completion of the following programs: (1) substance abuse treatment,
(2) psychological evaluations and/or participation in counseling, (3) parenting
classes, (4) drug and alcohol assessments and compliance with recommendations
of the assessments, and (5) random drug tests.  The trial court further ordered
each parent to remain drug free, refrain from criminal activity, maintain
stable housing and employment, and complete all services outlined in the
Department=s family service plans.[3] 

The Department petitioned the trial court to terminate Aja=s and James=s parental rights
to Clara and to grant Betty and Richard joint managing conservatorship of
Clara.  The Department cited a host of grounds in support of termination. 
Among these was subsection 161.001(1)(E) of the Texas Family Code, for which
the Department alleged that Aja and James each Aengaged in conduct
or knowingly placed the child with person who engaged in conduct which
endangers the physical or emotional well-being of the child.@  




In March 2008, when Clara was just under one year old, the
parties presented evidence at a bench trial on the Department=s petition for
termination.  In its closing argument, the Department argued that the trial
court should find that both Aja and James had engaged in the conduct listed in
subsections 161.001(1)(E), (N), and (O) and that Aja also had engaged in the
conduct under subsection 161.001(1)(A).[4] 
The trial court found by clear and convincing evidence that both Aja and James
had engaged in conduct or knowingly placed the child with persons who engaged
in conduct which endangers Clara=s physical or
emotional well-being under subsection 161.001(1)(E) of the Texas Family Code.[5] 
The trial court also found that termination of the parent-child relationship
between Clara and her parents is in Clara=s best interest. 
Therefore, the trial court terminated both parents= parental rights. 
In its decree for termination, the trial court also granted Betty and Richard=s request to be
appointed joint managing conservators of Clara.  In this regard, the court
found as follows:
!       Appointment of one or both parents as
managing conservators would not be in the best interest of Clara because the
appointment would significantly impair Clara=s physical health or emotional development.
!       Appointment of Betty and Richard as Clara=s joint managing conservators is in
Clara=s best interest.
!       Dismissing
the Department as a party to the suit is in the child=s best interest.
At a hearing on James=s motion for a new
trial, James complained of the sufficiency of the evidence to support the trial
court=s judgment.  The
trial court denied this motion.[6] 
James and Aja now challenge the legal and factual sufficiency of the evidence
supporting the trial court=s termination of their parental rights and
appointment of Betty and Richard as joint managing conservators.
 
 




II.  Issues and Analysis
The Department pleaded numerous grounds for termination
under subsection 161.001(1) of the Texas Family Code.  Despite the Department=s arguments for
termination of both parents= rights under subsections 161.001(1)(E),
(N) and (O) and, as to Aja, under subsection 161.001(1)(A), the trial court
announced at the end of trial that it was terminating Aja=s and James=s parental rights
based only on subsection 161.001(1)(E).  Consistent with this pronouncement of
judgment, in its written decree for termination, the trial court made the
following pronouncement:
7.       Termination of [Aja=s] Parental Rights
7.1     The Court finds by clear and convincing
evidence that termination of the parent-child relationship between [Aja] and
[Clara] is in the child=s best interest.
7.2     Further, the Court finds by clear and
convincing evidence that [Aja] has 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, pursuant to subsection 161.001(1)(E) of the
Texas Family Code;
7.3     IT IS THEREFORE ORDERED AND DECREED
that the parent-child relationship between [Aja] and [Clara] is finally and
forever terminated.
8.       Termination of [James=s] Parental Rights
8.1     The Court finds by clear and convincing
evidence that termination of the parent-child relationship between [James] and 
[Clara] is in the child=s best interest.
8.2     Further, the Court finds by clear and
convincing evidence that [James] has 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, pursuant to subsection 161.001(1)(E) of the
Texas Family Code;
8.3     IT IS
THEREFORE ORDERED AND DECREED that the parent-child relationship between
[James] and [Clara] is finally and forever terminated.




As a preliminary matter, we address the Department=s argument that,
because the trial court did not issue separate findings of fact, as required
under Texas Rule of Procedure 299a, the trial court=s judgment as to
both parents may be affirmed if there is sufficient evidence that would have
supported a finding under subsection 161.001(1)(O).[7] 

A.        Is there an implied finding
under subsection 161.001(1)(O)?
The trial court did not issue a separate document
containing findings of fact or conclusions of law.  Under Texas Rule of Civil
Procedure 299a, findings of fact should not be recited in a judgment but should
be filed as a separate document.  See Tex.
R. Civ. P. 299a; see In re A.A.M., No. 14-05-00740-CV, 2007 WL
1558701, at *3 n.3 (Tex. App.CHouston [14th Dist.] May 31, 2007, no
pet.) (mem. op.).  Under this rule, if findings are made in the judgment and
they conflict with findings filed separately under Texas Rules of Civil
Procedure 297 and 298, then the latter findings control for appellate
purposes.  See Tex. R. Civ. P.
299a.  Although the trial court made written findings in its termination
decree, these findings were consistent with the findings that the trial court
announced at the end of trial, and there were no separate written findings
under Rules 297 and 298 that could possibly conflict with the findings.  The
mere inclusion of findings in a judgment does not mean the findings have no
effect.  See In re U.P., 105 S.W.3d 222, 229 n.3 (Tex. App.CHouston [14th
Dist.] 2003, pet. denied).  If, as in this case, the findings contained in the
judgment are not supplanted by findings filed separately under Rules 297 and
298, findings improperly included in a judgment still have probative value and
are valid as findings.  See id.  Therefore, we conclude that the trial
court made the above-quoted findings regarding the termination of Aja=s and James=s parental rights.




The Department suggests that a finding as to conduct under
subsection 161.001(1)(O) should be supplied by presumption under Texas Rule of
Civil Procedure 299.  See Tex. R.
Civ. P. 299a.  The Department cites In re J.F.C., in which the
Supreme Court of Texas held that a best-interest finding in support of a
termination decree should be deemed under Rule 279.  See 96 S.W.3d 256,
262B63, 269B72 (Tex. 2002). 
This decision does suggest that the Aelements@ of a termination
case are a finding of one of the items listed under subsection 161.001(1)
coupled with the best-interest finding under subsection 161.001(2).  See id. 
Because there was a jury finding of the former and evidence supporting a
finding of the latter, the J.F.C. court deemed a finding as to the
latter.  See id.  However, in the instant case, the trial court made a
finding as to both Aelements@; therefore there
is no need to supply a finding as to a missing element under Rule 299.  We
conclude that In re J.F.C. does not support the Department=s argument.[8] 
In sum, an express finding of one or more of the items listed in subsection
161.001(1) precludes an implied finding on appeal regarding the items in
subsection 161.001(1) as to which the trial court made no express finding.  See
Vasquez v. Texas Dep=t of Protective
& Regulatory Servs., 190 S.W.3d 189, 194 (Tex. App.CHouston [1st
Dist.] 2005, pet. denied).  Accordingly, our sufficiency review for termination
of Aja=s and James= parental rights
is restricted to subsection 161.001(1)(E).
B.      Is the evidence legally and
factually sufficient to support termination of the mother=s and father=s parental rights?




Because termination of parental rights is a drastic remedy,
due process and the Texas Family Code require the Department to prove the
necessary elements by the heightened burden of proof of Aclear and
convincing evidence.@  See Tex. Fam. Code Ann. ' 161.001 (Vernon
2008); In re B.L.D., 113 S.W.3d 340, 353B54 (Tex. 2003).  A>Clear and
convincing evidence= means the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to
the truth of the allegations sought to be established.@  Tex. Fam. Code Ann. ' 101.007 (Vernon
2008).  In this case, the Department had to prove by clear and convincing
evidence that Aja and James engaged in the conduct specified in section
161.001(1)(E) of the Texas Family Code and that termination of their parental
rights is in Clara=s best interest.  See Tex. Fam. Code Ann. ' 161.001; In re
J.L., 163 S.W.3d 79, 84 (Tex. 2005).
In reviewing legal-sufficiency challenges to termination
findings, we consider all of the evidence in the light most favorable to the
termination findings to determine whether a reasonable factfinder could have
formed a firm belief or conviction that these findings are true.  In re J.L.,
163 S.W.3d at 85.  Looking at the evidence in the light most favorable to the
findings means that we presume the factfinder resolved disputed facts in favor
of its findings if a reasonable factfinder could do so.  Id.  We
disregard any evidence that a reasonable factfinder could have disbelieved, but
we do not disregard undisputed facts.  Id. 
In reviewing the factual-sufficiency challenges to
termination findings, we give due consideration to evidence that the factfinder
reasonably could have found to be clear and convincing.  In re J.F.C.,
96 S.W.3d at 266.  The factual-sufficiency inquiry is whether the evidence is
such that the factfinder reasonably could form a firm belief or conviction
about the truth of the Department=s allegations.  Id. 
We consider whether the disputed evidence is such that a reasonable factfinder
could not have resolved that disputed evidence in favor of its finding.  Id. 
AIf, 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 about the truth of the
petitioners= allegations, then the evidence is factually
insufficient.@  Id.  We give due deference to fact findings,
and we do not supplant the factfinder=s judgment with
our own.  See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
 




1.       Is the evidence legally
and factually sufficient to support a finding of endangerment under subsection
161.001(1)(E)?
In their first issues, Aja and James each contest the
sufficiency of the evidence to support a finding of endangerment under
subsection 161.001(1)(E).  The trial court found  that the Department had
proven by clear and convincing evidence that both Aja and James engaged in
conduct or knowingly placed Clara with persons who engaged in conduct which
endangers Clara=s physical or emotional well-being.  See
Tex. Fam. Code Ann. ' 161.001(1)(E). 
Under subsection 161.001(1)(E), the term Aendanger@ means the child
was exposed to loss or injury or jeopardized.  See Tex. Dep=t of Human Servs.
v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
When analyzing a trial court=s findings under
subsection 161.001(1)(E) with respect to physical endangerment, we determine
whether sufficient evidence exists that the endangerment of the child=s physical
well-being was the direct result of the parent=s conduct, which
includes both action or inaction that occurred either before or after the child=s birth.  See
In re A.S., D.S., & L.A.S., 261 S.W.3d 76, 83 (Tex. App.CHouston [14th
Dist.] 2008, pet. denied).  Endangerment encompasses Amore than a threat
of metaphysical injury or possible ill effects of a less-than-ideal
environment.@  Boyd, 727 S.W.2d at 533.  Likewise, although
endangerment under subsection 161.001(1)(E) often entails physical
endangerment, the statue does not require that conduct be directed at a child
or cause actual harm; rather, it is sufficient if the conduct endangers the
emotional well-being of the child.  See id.; In re U.P., 105
S.W.3d at 233; Robinson v. Tex. Dep=t of Prot. &
Reg. Servs., 89 S.W.3d 679, 686 (Tex. App.CHouston [1st
Dist.] 2002, no pet.).  Thus, the court=s inquiry
encompasses acts that endanger a child=s physical or
emotional well-being, or both.




Termination under subsection 161.001(1)(E) must be based on
more than a single act or omission; a voluntary, deliberate, and conscious
course of conduct by the parent is required.  In re J.W., 152 S.W.3d
200, 205 (Tex. App.CDallas 2004, pet. denied).  The requisite
endangerment may be found if the evidence shows a parent=s course of
conduct that has the effect of endangering the child=s physical or
emotional well-being.  See Boyd, 727 S.W.2d at 534; Smith v. Sims,
801 S.W.2d 247, 250 (Tex. App.CHouston [14th Dist.] 1990, no pet.).  In
considering whether a relevant course of conduct has been established, a court
properly may consider evidence of conduct that occurred both before and after a
child=s birth.  See
In re S.T., 263 S.W.3d 394, 401B02 (Tex. App.CWaco 2008, pet.
denied).  In addition, a court may consider evidence establishing that a parent
continued to engage in endangering conduct after the child=s removal by the
Department or after the child no longer was in the parent=s care, thus
showing the parent continued to engage in the course of conduct in question.  See
id.; Smith, 801 S.W.2d at 249B50.
a.  Endangerment by the Mother under Subsection
161.001(1)(E)




Regarding the hospital incident on the day Clara was born,
the record contains little or no evidence other than the general statements
contained in the Department=s report, which appears to have been based
on a report from the hospital.  None of the hospital staff who observed the
incident or contributed to the report testified at trial.  Nor did the original
case worker who filed the report testify.  No evidence was presented regarding
Aja=s mental health or
how any mental health issues might impact her parenting of Clara.  Moreover, no
expert testified as to any potential harm that could have befallen Clara as a
result of Aja=s actions in Aattempting@ to give the baby
ice chips.  The report does not mention the size of the ice chips or indicate
how or whether they might have presented a risk of choking or other harm. 
There is no evidence as to the quantity of ice chips involved or whether Clara
actually consumed the ice.  No evidence indicates the manner or force, if any,
Aja used in attempting to see her newborn child=s eyes.  There is
no evidence of any intent by Aja to harm the child.  In light of the undisputed
evidence that Aja=s sole motivation was not to harm the
child but only to see the newborn=s eye color, it
would not be reasonable to infer that her actions were intended to cause harm. 
If any unintended harm resulted, there is no suggestion of it in the record. 
The Department=s report of the hospital incident refers only to Aja=s Aattempts,@ and no evidence
indicates whether she effectively completed the acts or whether Clara was
exposed to any harm, actual or feared, by Aja=s actions.  No
evidence suggests that the child was exposed to any injury or loss or that she
was in any manner jeopardized as a result of Aja=s conduct at the
hospital, especially considering that these actions occurred under the watchful
eye of hospital staff.  See Boyd, 727 S.W.2d at 533.  Nonetheless, the
Department urges that the rights of the mother as well as the father, who was
present during the incident, may be terminated on this ground alone.
Termination of parental rights is serious business. 
Because the law demands clear and convincing evidence of facts supporting
termination, we cannot terminate a parent=s rights based on
strong rhetoric alone.  Facts and evidence are essential things.  Though the
Department argues forcefully for the affirmance of the trial court=s termination of
this mother=s rights on endangerment grounds based on this
incident in the hospital, the evidence in the record is legally insufficient. 
Under the applicable standard of review, we conclude no reasonable factfinder
could form a firm belief or conviction that Clara=s physical or
emotional well-being was endangered by Aja=s conduct in the
hospital.  Therefore, on this record, the evidence at trial did not satisfy the
clear and convincing standard as to Aja=s alleged
endangerment of the child in the hospital.[9]
The Department, however, also points to the following
evidence in support of termination based on other conduct:
1.                 
Aja=s
involvement with illegal drug activity, including a 2002 conviction for
possession of marijuana, a 2006 conviction for possession of methamphetamines
several months before Clara=s
birth, Aja=s positive
test for methamphetamines in April 2007 following Clara=s birth as reflected by the caseworker=s testimony, and Aja=s failure to submit to
random drug tests after September 2007 in accordance with the trial court=s May 2007 and September
2007 orders;




2.         Aja=s involvement
with James, who has been convicted of crimes, including deadly conduct with a
knife against her several months before Clara=s
birth, assault against another family member after Clara=s birth, and other illegal drug and alcohol
activities before and after Clara=s
birth;
3.                 
Aja=s
conviction in October 2007 for a theft that occurred in July 2007, less than
two months after the trial court ordered her to refrain from criminal activity;
4.                 
Aja=s failure
to regularly visit Clara after October 2007, even though Betty and Richard
placed no limitations on her visitation with the child; and
5.                 
Aja=s departure
from the state after indicating that she planned to return to visit Clara every
year or two and relinquish her parental rights. 
The record contains no evidence that Aja used illegal
drugs while pregnant with Clara or that Aja or Clara tested positive for drugs
at the time of Clara=s
birth.[10]  Though Aja
had a positive drug test two weeks after Clara was placed in the Department=s custody, a single
incident of drug use while the child is not in the parent=s custody does not support
an inference of endangerment.  See In re A.S., D.S., & L.A.S., 261
S.W.3d at 87 & n.13 (determining that a mother=s one-time use of marijuana while she was
pregnant did not amount to endangerment).  Evidence reflects that Aja tested
negative on weekly drug tests from mid-April through September.  The caseworker
testified that Aja denied current drug use, and the caseworker denied having
proof that would suggest otherwise.  However, Aja discontinued the
court-mandated drug tests after September, citing scheduling and transportation
problems.  A factfinder reasonably could infer that Aja=s failure to submit to the court-ordered drug
screening indicated she was avoiding testing because she was using drugs.  See
In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.CFort
Worth 2003, no pet.). 







The Department also points to evidence of Aja=s conviction in October
2007, for a theft that occurred in July 2007, for which she was incarcerated
for ten days.  Aja committed this offense after the trial court previously had
ordered her to refrain from criminal activity.  At the time of the theft, Aja
knew her parental rights were in jeopardy, yet she continued to engage in
criminal activity that resulted in being jailed.  See Robinson, 89
S.W.3d at 687 (citing In re J.N.R., 982 S.W.2d 137, 142 (Tex. App.CHouston [1st Dist.] 1998,
no pet.), disapproved of in part by, In re C.H., 89 S.W.3d 17, 26
(Tex. 2002), and by In re J.F.C., 96 S.W.3d 256, 267 (Tex. 2002)).  Aja=s commission of the theft
offense in July 2007, combined with her two prior convictions for possession of
illegal drugs and her positive drug test in April 2007, established clear and
convincing proof of a voluntary, deliberate, and conscious course of conduct
that endangered Clara=s
well-being.  See id. at 686B87. 
We consider Aja=s
theft conviction in conjunction with her prior criminal history for the 2006
drug possession charge, in which she served thirty days for possession of
methamphetamine several months before Clara=s
birth.  Methamphetamine has potential for abuse and has Aaddiction-forming liability@ as a narcotic.  See
Real Property Located at 4125 Blanton, Wichita Falls, Wichita County, Texas,
With a Legal Description of Lot 1 Block 4 University Park B1, Wichita County,
Texas v. State, 230 S.W.3d 476, 487B88
(Tex. App.CFort Worth
2007, pet. denied). Aja=s
behavior evinces a course of conduct that a factfinder reasonably could
conclude endangers Clara=s
well-being.  See Robinson, 89 S.W.3d at 687 (concluding that drug use in
face of trial court=s
order to refrain from such acts confirmed voluntary, deliberate, and conscious
course of conduct endangering the children=s
well-being); Avery v. State, 963 S.W.2d 550, 553 (Tex. App.CHouston [1st Dist.] 1997,
no writ) (stating that imprisonment, alone, cannot be the basis for terminating
parental rights and concluding that mother=s
past criminal conduct and behavior qualified as a voluntary, deliberate, and
conscious course of conduct endangering the child=s
emotional well-being).  Under the applicable standard of review, based on the
record evidence, a reasonable factfinder could form a firm belief or conviction
that Aja=s course of
conduct endangered Clara=s
emotional well-being.  See Robinson, 89 S.W.3d at 687; In re J.N.R.,
982 S.W.2d at 142B43
(concluding, under pre-C.H. and pre-J.F.C. standards of appellate
review, that parent=s
engaging in criminal acts resulting in imprisonment even after knowing his
parental rights were in jeopardy, showed that he continued to engage in
criminal activity that endangered his child=s
emotional well-being).  Accordingly, on this record, the evidence is legally
sufficient to support the trial court=s
finding that Aja engaged in a course of conduct that endangered Clara=s emotional well-being.  See
Robinson, 89 S.W.3d at 687; In re J.N.R., 982 S.W.2d at 142B43.  In addition, we
conclude that, under the applicable standard of review, the evidence is
factually sufficient to support the trial court=s
finding that Aja engaged in a course of conduct that endangered Clara=s emotional well-being.  See
Robinson, 89 S.W.3d at 687; In re J.N.R., 982 S.W.2d at 142B43.  Therefore, we
overrule Aja=s first
issue.
b.  Endangerment by the Father under
Subsection 161.001(1)(E)
Evidence at trial suggests James was present for the
incident at the hospital that prompted the Department to intervene on Clara=s behalf.  However, based
on the facts, as described above, and our evaluation of these facts, no
evidence from the hospital incident as shown on this record supports a finding
of endangerment that rises to the Aclear
and convincing@ standard. 
See Tex. Fam. Code Ann. ' 161.001(1)(E).




Nevertheless, other evidence establishes that James has
engaged in a course of criminal conduct involving violent actions against a
family member and against Aja, a person with whom he shared a dating
relationship.  James has been convicted and incarcerated for this conduct in
the two incidents.  Though imprisonment, alone, does not support a finding of
endangerment, evidence, including imprisonment, that demonstrates a course of
conduct that has the effect of endangering the child=s physical or emotional well-being supports a
finding of endangerment under subsection 161.001(1)(E).  See Boyd, 727
S.W.2d at 534; In re J.W., 152 S.W.3d at 205.  In one incident occurring
on November 19, 2006, James was convicted of misdemeanor deadly conduct with a
knife against Aja, roughly four months before Clara=s birth.  If a parent abuses the other parent
or children, that conduct can support a finding of endangerment even against a
child who was not yet born at the time of the conduct.  See In re W.J.H.,
111 S.W.3d 707, 716 (Tex. App.CFort
Worth 2003, pet. denied). After Clara=s
birth, James was convicted of criminal assault against a family member in
November 2007, by striking that family member with his hand.[11] 
In this case, evidence shows that James=s
endangering criminal conduct towards household or family members occurred
before Clara=s birth
and persisted after Clara=s
birth.  See id. (considering evidence of abusive conduct toward another
parent before the child=s
birth as supporting a finding of endangerment).  These circumstances show a
pattern severe enough to demonstrate a course of conduct that presents a danger
to Clara=s physical
and emotional well-being.  See In re N.S.G., 235 S.W.3d 358, 367B69 (Tex. App.CTexarkana 2007, no pet.)
(involving termination of parental rights of a father who engaged in pattern of
conduct severe enough to cause his incarceration, including criminal activity
before and after child=s
birth, Aroughing up@ of child=s mother, and use of
illicit drugs); In re J.N.R., 982 S.W.2d at 142 (concluding evidence
supported endangerment when father continued to engaged in criminal activity
that resulted in his imprisonment even when his parental rights were in
jeopardy).  As reflected in the record, James was incarcerated not only for
these incidents but also for a number of other charges between 2004 and 2007. 




Furthermore, evidence in the record indicates that James
has not provided for Clara financially, and he had only temporary living
arrangements just before his incarceration.  A>[C]onduct that subjects
a child to a life of uncertainty and instability endangers the physical and
emotional well-being of a child.=@  In re N.S.G., 235
S.W.3d at 367B68
(quoting In re R.W., 129 S.W.3d 732, 739 (Tex. App.CFort Worth 2004, pet.
denied).  There is ample evidence that James engaged in activities that
resulted in uncertainty and instability in Clara=s
life.  See id. at 368B69
(providing that evidence that father Aroughed
up@ child=s mother, engaged in prior
and continued criminal activity, and used illicit drugs were activities that
resulted in uncertainty in child=s
life and led to course of conduct that endangered child); see also Avery,
963 S.W.2d at 553 (providing that a mother=s
past criminal record and behavior showed a conscious course of conduct and
instability that occurred before and after child=s
birth).  When considered collectively, evidence of James=s abuse towards household or family members,
his past and continued criminal activities, as well as his imprisonment
supports a finding that James engaged in a course of conduct that endangered
Clara=s physical and
emotional well-being.  See Boyd, 727 S.W.2d at 533B34; see also In re
N.S.G., 235 S.W.3d at 368B69.
Viewing the evidence in the light most favorable to the
judgment, a reasonable factfinder could have
formed a firm belief or conviction that James engaged in the conduct described
in section 161.001(1)(E).  See In re N.S.G., 235 S.W.3d at 367B69 (concluding
evidence was legally and factually sufficient to support finding of
endangerment because father persisted in criminal activity before and after
child=s birth, abused
child=s mother, and used
illicit drugs).  Therefore, under the applicable standard of review, the
evidence is legally sufficient to support the trial court=s finding that
James engaged in a course of conduct that endangered Clara=s physical or
emotional well-being.  See id.  Under the applicable standard of review,
we conclude the evidence is factually sufficient to support the trial court=s finding that
James engaged in a course of conduct that endangered Clara=s physical or
emotional well-being. See In re M.R., 243 S.W.3d at 819; In re N.S.G.,
235 S.W.3d at 367B69.  Therefore, we overrule James=s first issue.
2.       Is the evidence legally
and factually sufficient to support a finding that termination of the parents= parental rights is in the best
interest of the child?




In their second issues, Aja and James each challenge the
sufficiency of the evidence to support the trial court=s findings that
termination of Aja=s and James=s parental rights
is in Clara=s best interest.  In reviewing the sufficiency of the
evidence to support a best-interest finding, we examine a number of factors,
including (1) the desires of the child; (2) the present and future physical and
emotional needs of the child; (3) the present and future emotional and physical
danger to the child; (4) the parental abilities of the persons seeking custody
in promoting the best interest of the child; (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 agency seeking custody; (7) the
stability of the home or proposed placement; (8) acts or omissions of the parent
which may indicate the existing parent-child relationship is not appropriate;
and (9) any excuse for the parent=s acts or
omissions.  See Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976).  A
finding in support of Abest interest@ does not require
proof of any unique set of factors, nor does it limit proof to any specific
factors.  Id. 




No evidence suggests Clara has any special needs and, at
one year old, her desires cannot be determined.  See In re N.S.G., 235
S.W.3d at 369 (involving a twenty-two month child at time of trial).  Neither
Aja nor James has provided for the child=s needs nor have
they offered her an opportunity for a stable, permanent living environment. 
James had only temporary living arrangements before his incarceration. 
Evidence in the record suggests that Aja had temporary living arrangements with
James=s mother, Elaine. 
The trial court=s May 2007 and September 2007 orders
required each parent to maintain stable housing in the same location and stable
employment with the same employer for six months; however, the evidence does
not suggest that either parent complied.  See In re J.F.C., 96 S.W.3d at
269, 277B78 (considering
failure to substantially comply with family service plan as evidence favoring
termination and in child=s best interest); see also White v.
Tex. Dep=t of Family & Prot. Servs., No.
01-04-00221-CV, 2005 WL 174546, at *6 (Tex. App.CHouston [1st
Dist.] Jan. 27, 2005, no pet.) (mem. op.) (supporting best-interest
determination based on evidence that parents failed to find stable housing). 
Evidence at trial reflected that Aja did not substantially complete the family
service plan ordered by the trial court to effect reunification with Clara. 
Although Aja completed the initial drug and alcohol assessment and began drug
testing, she ended the drug tests in September and did not complete any other
requirements of the family service plan.  She indicated to the caseworker in
November 2007 that she refused to complete the service plan and felt her
attempts to complete the plan were in vain when the trial court ordered that
Clara remain with Betty and Richard instead of placing Clara with James=s mother. 
Evidence reflects Aja consistently visited Clara at the Department=s offices twice
monthly between April and September 2007.  However, evidence indicates that the
Department, in October 2007, permitted Betty and Richard to allow Clara
visitation with her parents; Betty and Richard placed no limits on the number
or length of these visits.  Notwithstanding this generous visitation
arrangement, Aja visited Clara only three times for only a couple of hours. 
Evidence reflects that at the time of trial, Aja lived in Mississippi and,
knowing that the child was in Betty and Richard=s care, expressed
a desire to return to visit Clara once Aevery year or two.@  
No evidence indicates that Aja is employed, but Betty
indicated Aja was capable of employment.  Aja has not provided for Clara=s emotional or
physical needs beyond purchasing some clothes and a toy.  Aja requested that
Betty continue to provide a stable home, education, and religious upbringing
for Clara.  The caseworker and Betty both confirmed that prior to trial Aja
expressed a desire to relinquish her parental rights. 




Evidence in the record shows that while James visited Clara
regularly for several months while she was in the Department=s custody, these
visits stopped in September 2007.  James was incarcerated in November 2007, and
released just before the termination proceedings commenced.  James did not
appear at the termination proceedings, nor has he indicated that he has any
plans for Clara=s future, as demonstrated by his failure
to complete the requirements of the family service plan ordered by the trial
court.  Specifically, he did not complete parenting classes or anger-management
counseling.  James admitted to the caseworker that he tested positive for drugs
after Clara=s birth, explaining this substance abuse occurred
because of his need to relieve stress brought on when Clara came into the
Department=s care.[12] 

Testimony from the child advocate indicated that Clara
seemed to be in a good environment with Betty and Richard and has lived with
them since she was less than one month old.  They are the only caregivers Clara
has known.  See N.S.G., 235 S.W.3d at 365 (involving child who lived
with caregivers starting at five days old).  According to the child advocate,
Clara has bonded with both Betty and Richard, who have indicated a willingness
to continue to provide emotional, financial, and physical care for Clara now
and in the future.  The child advocate testified that Betty and Richard had a
supportive infrastructure of friends who showered them with gifts for Clara. 
The child is thriving in their care, and they want to adopt her.
Giving due consideration to the evidence, the trial court
reasonably could have formed a firm belief or conviction about the truth of its
findings that termination of James=s and Aja=s parental rights
is in Clara=s best interest.  See In re N.S.G., 235 S.W.3d
at 369B70 (concluding
evidence was legally and factually sufficient to support a best-interest
finding for child who was five days old when placed in care of others and was
twenty-two months old at trial); In re S.B., 207 S.W.3d 877, 887B88 (Tex. App.CFort Worth 2006,
no pet.) (concluding evidence was factually sufficient to support best-interest
findings based on parent=s inability to provide stable home and
failure to comply with family service plan).  Therefore, we overrule Aja=s and James=s respective
second issues.
Given the disposition of the first two issues, we do not
reach their respective third issues, in which Aja and James challenge the
conservatorship of the child. 




III. 
Conclusion
Under the applicable standards, the
evidence is both legally and factually sufficient to support the trial court=s findings
regarding termination of Aja=s and James=s parental
rights.  Therefore, we affirm the trial court=s termination of
both parents= parental rights. 
 
 
 
/s/      Kem Thompson
Frost
Justice
 
 
 
Panel consists of Justices Frost, Brown, and Boyce.




[1]  To protect the privacy of the parties in this case,
we identify the child by a fictitious name and the parents and
great-grandparents by their first names only.  See Tex. Fam. Code Ann. ' 109.002(d) (Vernon 2008).


[2]  Evidence indicates that both parents tested positive
for narcotics.  When a Department caseworker questioned James about testing
positive for cocaine use, James admitted he used cocaine, saying he was Astressed out@
because the Department removed the child.


[3]  The September 2007 orders required completion of no
fewer than three random drug tests each month and that each parent maintain
stable housing in the same location and employment with the same employer for
no less than six months.  The September order also required each parent to
participate in anger management classes or counseling.


[4]  See Tex.
Fam. Code Ann. '' 161.001(1)(E), (N), (O), (A) (Vernon 2008) (providing
for termination on the following grounds respectively: endangerment,
abandonment, failure to comply with court orders, and leaving the child with no
expressed intent to return).


[5]  Unless otherwise specified, all statutory citations
in this opinion are to the Texas Family Code.


[6]  The record indicates that Aja=s motion for new trial was denied before the trial
court held a hearing on James=s motion for
new trial.  In her motion Aja also challenged the sufficiency of the evidence.


[7]  To the extent that the Department asserts that the
trial court erred by failing to terminate the parental rights of Aja and James
based on their engaging in conduct listed under subsection 161.001(1)(O), the
Department did not properly preserve this issue by filing a statement of
appellate points and a notice of appeal.  See Tex. Fam. Code Ann. '
263.405(i) (Vernon 2008); see Prairie View A&M Univ. v. Dickens, 243
S.W.3d 732, 734 n.4 (Tex. App.CHouston [14th
Dist.] 2007, no pet.); In re T.T., 228 S.W.3d 312, 316B17 (Tex. App.CHouston
[14th Dist.] 2007, pet. denied). 


[8]  In addition, even if subsection 161.001(1)(O) were
considered an element, the Department requested in its closing argument that
the trial court make a finding as to subsection 161.001(1)(O); therefore, this
would not be an Aunrequested element@
subject to a finding by presumption under Rule 299.  See Tex. R. Civ. P. 299.  


[9]  See Tex. Fam. Code Ann. ' 161.001(1)(E); see also In re
J.R., 171 S.W.3d 558, 576B78 (Tex. App.CHouston [14th Dist.] 2005, no
pet.). 


[10]  Furthermore, the Department=s own report containing the allegations of the
hospital incident also provides that Aja told Department caseworker, Mary
Votaw, that her pregnancy limited her medication options prescribed to treat
her mental illness.  This undisputed evidence undermines any argument that Aja
engaged in a course of conduct involving use of illegal drugs that endangered
her child=s well-being while pregnant.  See In re A.S., D.S.,
& L.A.S., 261 S.W.3d at 87.


[11]  James argues that the criminal records were not relevant, contained
hearsay, and did not sufficiently link him to the crimes.  In this sufficiency
review, to the extent James argues the records should not have been admitted,
James did not properly preserve this
issue for appeal by filing a statement of appellate points.  See Tex. Fam. Code Ann. ' 263.405(i) (Vernon 2009) (barring an appellate court
from considering any issue not specifically presented to the trial court in
either a timely filed statement of points the party intends to appeal or such a
statement combined with a motion for new trial); In re T.T., 228 S.W.3d 312, 316B17 (Tex. App.CHouston [14th Dist.] 2007, pet.
denied).  Therefore, James has waived this argument.  See In re T.T.,
228 S.W.3d at 316B17. 


[12]  The caseworker testified to her knowledge of James=s two positive drug tests during the pendency of the
termination proceedings and to her conversation with James following these
tests, in which he admitted cocaine use.


