                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-428-CV


IN THE INTEREST OF D.B.


                                          ------------

           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      Appellant David B. appeals the trial court’s judgment terminating his

parental rights to his son, D.B. 2 In six points, David argues that the trial court

abused its discretion by denying his motion for continuance and that the

evidence is legally and factually insufficient to support the trial court’s judgment

terminating his parental rights.          Because the trial court did not abuse its



      1
          … See T EX. R. A PP. P. 47.4.
      2
      … D.B.’s mother’s parental rights were also terminated; however, she did
not appeal.
discretion by denying David’s motion for continuance and because the record

demonstrates that termination of David’s parental rights was proper under

section 161.001, we will affirm.

                           II. F ACTUAL B ACKGROUND

      A.    2006 CPS Referral

      On August 30, 2006, Child Protective Services (CPS) received a referral

for neglectful supervision and physical neglect of D.B. by David. D.B. was two

years old at the time and lived with David at David’s mother’s house. The

caller initiating the referral indicated that (1) D.B.’s mother had been released

from prison, was on drugs, and had access to D.B.; (2) D.B. was left in the

primary care of his paternal grandmother, who had difficulty caring for him

because she was an insulin-dependent diabetic and had other severe medical

problems; (3) David took the grandmother’s Social Security check, allegedly to

buy food, but there was never any food in the house; (4) the home had trash

strewn about and was infested with roaches; and (5) D.B. had run away from

his grandmother, and due to her disability, she had trouble catching him.

      Approximately a week after the referral came in, CPS investigator Jennifer

Cook went to the home and visited with the grandmother and D.B. Although

D.B. appeared of average height and weight and did not have any marks or

bruises, he was not verbal. The house was sparsely furnished; D.B. slept on

                                       2
a cushion on the floor, and during the interview, the grandmother sat at a card

table with one chair. Cook was concerned about the grandmother’s ability to

care for D.B. because she did not appear to be in good health; had not bathed;

wore soiled clothing; had extremely red eyes, one of which appeared to have

an infection; had very swollen legs; and had a hard time walking and sitting.3

      When Cook made contact with David later that day, he denied all of the

allegations. He said that he did not leave D.B.’s mother alone with D.B. David

stated that he could provide for D.B. because he was employed with the Como

Community Center and received disability benefits because of his arthritis,

asthma, and bipolar disorder. David also stated that he felt that his mother,

D.B.’s grandmother, could adequately care for D.B.

      Cook instructed David to submit to a drug test, which he agreed to do.

However, David did not go through with the test. He admitted that he had

smoked marijuana within the past six months and said that the test would come

back positive for another drug. Cook advised David that he still needed to take

the drug test. On September 13, 2006, David told Cook that he still had not

taken the drug test and that his last day of work would be September 15




      3
       … The record also revealed that the grandmother had a case open with
Adult Protective Services because she was unable to care for herself due to her
diabetic condition.

                                      3
because his services were no longer needed at the community center. When

David ultimately submitted to a hair follicle test on September 15, 2006, the

results came back positive for cocaine.

      Cook and her supervisor made a home visit on September 16, 2006.

David appeared unable to comprehend the conversation that they were having,

and they suspected that he was under the influence of some type of substance.

During that visit, David agreed to voluntarily place D.B. with David’s stepson,

Cedric Clark. Clark had a criminal charge for possession of marijuana pending

against him, so CPS placed D.B. with Clark’s girlfriend, Tanisha Hodges.

      David contacted CPS in October and scheduled an appointment to discuss

receiving services. During that appointment, David mentioned that a niece

named Lynette Taylor wanted to be considered as a placement for D.B. David

said that he was not happy with D.B.’s current placement because Hodges was

not allowing him to have as much access to D.B. as he wanted.

      After that meeting, David failed to follow through with a scheduled drug

assessment test. David and the grandmother apparently had been evicted from

the apartment they were previously living in, and Cook had difficulty locating

David. On November 28, 2006, David called Cook and told her that he was

living in Dallas. After that phone call, Cook did not have further contact with

David regarding the August 2006 referral because he did not provide an address

                                      4
or phone number where he could be reached. CPS eventually closed the case

for lack of contact with the parents and disposed of the case as “reason to

believe for neglectful supervision” of D.B. by David.

      B.    2007 CPS Referral

      On January 22, 2007, Hodges contacted Cook and told her that she

could no longer care for D.B. Cook was not able to contact David or D.B.’s

mother, so D.B. was placed in foster care. At the time that D.B. left Hodges’s

care, he had just turned three. Cook observed that D.B. never spoke. Cook

said that D.B. appeared to understand verbal commands and could follow them

but did not speak one word. Hodges had told Cook that D.B. liked to be very

close to people and that he would need to be reminded to use the bathroom.

Cook noted that D.B. played right next to her, that he was unable to tell her

when he was hungry or thirsty, and that he was “definitely very delayed.”

      Cook ultimately discovered that D.B.’s mother was in jail on prostitution

charges. During Cook’s conference with D.B.’s mother, she learned that David

was also in jail. Cook thereafter visited David in jail and told him that Hodges

could no longer care for D.B. and that he was in foster care. David responded

that D.B. “might as well be left in [foster] care.” David did not ask how D.B.

was doing or where he was. He also told Cook that he was incarcerated for

forgery and would be in jail for at least a year.

                                        5
      Cook disposed of this new investigation as “reason to believe for

neglectful supervision” by David and D.B.’s mother.          Cook stated that a

preponderance of the evidence showed that David had voluntarily placed D.B.

with Hodges who could no longer care for the child, that there were no relatives

to care for D.B., that Hodges had not spoken with either parent in several

months, that the voluntary placement had not received any financial assistance

from D.B.’s parents in order to care for D.B., that both parents were

incarcerated at the time of D.B.’s removal, that D.B.’s mother had been

arrested on charges of prostitution, and that David had been arrested for

forgery.4

      C.    David’s Perspective

      David testified at trial and said that D.B. had lived with him since birth.

David’s mother, D.B.’s grandmother, helped with raising D.B. D.B.’s mother did

not participate in raising D.B.

      David said that he tried to provide some financial support for D.B. while

he was staying with Hodges; however, he claimed that his stepson Clark did




      4
       … In addition to the forgery charge, Cook’s criminal history check of
David revealed that he had prior charges for robbery, unauthorized use of a
vehicle, failure to identify a fugitive from justice, theft of property, possession
of a controlled substance, and evading arrest. Cook said that of those charges,
only the theft of property charge had been dismissed.

                                        6
not come by as he had promised to pick up the money. David said he did not

know where Hodges lived, and it never crossed his mind to call CPS to tell them

he had money for Hodges.       After David’s job ended at Como Community

Center, he said that he had worked construction in Arlington.

      David said that he was not using marijuana and methamphetamines back

in September 2006 but admitted that he was using cocaine about every two

weeks when he got paid. He said that he did not take advantage of the drug

treatment offered by CPS because he did not have transportation.

      At the time of trial, David was serving a one-year sentence in state jail for

forgery of his mother’s social security checks. David said that he had also been

convicted of robbery, auto theft, and possession of cocaine. He admitted that

he had been arrested on numerous occasions for tickets. In total, David had

been arrested over 160 times. David admitted that he was not acting in D.B.’s

best interest when he committed the offenses for which he was charged.

      David said that D.B. did not have any developmental problems and that

D.B. played like other children did. However, David later testified that he had

told Clark that he needed to take D.B. to a speech therapist. David did not

remember who D.B.’s pediatrician was, but he remembered that D.B. took two

naps a day, went to bed at 9 p.m., loved spaghetti and weenies, and enjoyed




                                        7
riding his Big Wheel bike and playing at the park.      David also denied any

knowledge of episodes when D.B. would eat until he became sick.

      David said that he had concerns about D.B.’s staying with Hodges

because Hodges would not respond to his questions about how D.B. was doing.

David said that he had not seen D.B. in almost two years. He admitted that he

had not communicated with the caseworker and had not sent D.B. any letters

nor asked to receive photos of D.B.

      While he was in jail, David took CHANGES, parenting classes, and drug

and alcohol classes.    David said that his correspondence from CPS has

indicated that he would be able to work his service plan after he was released

from jail. David said that when he is released from jail, he wants to get a job,

get stable, and take the classes that he needs to take to get his son back.

David stated that he loves his son.

      D.    D.B.’s Outlook

      Bolu Odelusi, the ongoing CPS caseworker for D.B.’s case, testified that

when D.B. was placed in foster care, he could not speak, he did not smile, he

did not walk, he did not attach well to others, and he “hoarded food.” CPS

moved D.B. from a basic foster home to a therapeutic foster home to address

his delayed developmental issues.     While in therapeutic foster care, D.B.

received occupational, physical, play, and speech therapies and was enrolled

                                       8
in a preschool for children with disabilities. D.B. is thriving in foster care; he is

very attached to his foster mom; he is now speaking; he interacts well with

children in the home; and he is getting much better about not hoarding food.

      Odelusi testified that it was not in D.B.’s best interest for David to be

given additional time to work the service plan. D.B. has several disabilities and

“really needs to be in a place where stability is provided.” Odelusi also testified

that it was in D.B.’s best interest for David’s parental rights to be terminated

because David has an extensive criminal history, including illegal drug use

during the time that he was D.B.’s primary caregiver; because David placed

D.B. in an environment where he was not properly taken care of; and because

David failed to communicate with CPS after he received a service plan.

      E.     Trial Court’s Decision

      At the conclusion of the termination trial, the trial court took judicial

notice of a “Certificate of Paternity Registry” that was on file with the court

indicating that a diligent search of the paternity registry had been made, and no

notice of intent to claim paternity had been located pertaining to D.B. The trial

court thereafter terminated David’s parental rights to D.B. and included the

following in the “Order of Termination”:




                                         9
      9.    Termination of Alleged Biological Father DAVID [B.’s] Parental
            Rights

            9.1. The Court finds by clear and convincing evidence that,
                 after having waived service of process or being served
                 with citation in this suit, DAVID [B.] did not respond by
                 filing an admission of paternity or by filing a
                 counterclaim for paternity or for voluntary paternity to
                 be adjudicated under chapter 160 of the Texas Family
                 Code before the final hearing in this suit.

            9.2. The Court finds by clear and convincing evidence that
                 David [B.] has:

                   9.2.1.        knowingly placed or knowingly allowed the
                                 child to remain in conditions or
                                 surroundings   w hich    endanger     the
                                 emotional or physical well-being of the
                                 child; and

                   9.2.2.        engaged in conduct or knowingly placed
                                 the child with persons who engaged in
                                 conduct which endangers the physical and
                                 emotional well-being of the child; and

            9.3. The Court also finds by clear and convincing evidence
                 that termination of the parent-child relationship, if any
                 exists or could exist, between the alleged father and
                 [D.B.], the child the subject of this suit, is in the best
                 interest of the child.

This appeal followed.

                            III. M OTION FOR C ONTINUANCE

      In his first point, David argues that the trial court abused its discretion by

denying his motion for continuance and by holding the termination trial prior to


                                         10
his release from jail. Specifically, David complains that he thought he would be

able to work his service plan after his release from jail because some of the

required services were not available in jail.

      To determine whether a trial court abused its discretion, we must decide

whether it acted without reference to any guiding rules or principles; in other

words, whether the act was arbitrary or unreasonable. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S.

1159 (1986). Whether the trial court grants or denies a motion for continuance

is within its sound discretion. See BMC Software Belg., N.V. v. Marchand, 83

S.W.3d 789, 800 (Tex. 2002); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.

1986); see also In re E.L.T., 93 S.W.3d 372, 374 (Tex. App.—Houston [14th

Dist.] 2002, no pet.). The trial court’s action in denying a continuance will not

be disturbed unless the record discloses a clear abuse of discretion. State v.

Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex. 1988).

      A motion for continuance shall not be granted except for sufficient cause

supported by an affidavit, consent of the parties, or by operation of law. T EX.

R. C IV. P. 251. If appellant provides no record of the evidence presented to the

trial court, we must presume that the evidence supports the ruling. See Wil-

Roye Inv. Co. II v. Wash. Mut. Bank, F.A., 142 S.W.3d 393, 401 (Tex.




                                       11
App.—El Paso 2004, no pet.); In re Guardianship of Berry, 105 S.W.3d 665,

667 (Tex. App.—Beaumont 2003, no pet.).

      Here, David submitted a verified motion for continuance, and we have

been provided with a record of the evidence presented to the trial court. We

will therefore review that evidence and determine whether the trial court abused

its discretion by denying David’s motion for a continuance.

      The record reveals that at the April 2007 status review hearing, the trial

court found that David

      has reviewed and understands the service plan and has been
      advised that unless he is willing and able to provide the child with
      a safe environment, even with the assistance of a service plan,
      within the reasonable period of time specified in the plan, his
      parental and custodial duties and rights may be subject to
      restriction or to termination or the child may not be returned to
      him. [Emphasis added.]

At the time of that hearing, the initial service plan stated that the permanency

goal was “Family Reunification” and that the projected date for achieving

permanency was “1/31/08,” meaning that David had until January 31, 2008

to complete the services listed on his plan. Odelusi testified, however, that a

parent’s completion of a service plan did not guarantee that a child would be

returned to that parent.

      The “Permanency Plan and Permanency Progress Report” submitted by

the case worker on July 12, 2007, repeatedly stated that “[u]pon return from

                                      12
incarceration, [David] will” comply with various provisions. However, it also

stated that David “has not returned any form of communication to the worker.

It is the worker’s assumption that [David] is not doing any type of services

while incarcerated.” Two weeks later, on July 26, 2007, the trial court held

a permanency hearing and entered an order finding that David had “not

demonstrated adequate and appropriate compliance with the service plan,”

setting the case for trial on November 19, 2007, and setting a dismissal date

of January 29, 2008 pursuant to family code section 263.306(11). See T EX.

F AM. C ODE A NN. § 263.306(11) (Vernon 2002). Prior to the hearing date, on

November 8, 2007, the case worker submitted a revised permanency plan,

which reflected that family reunification was no longer the permanency goal

and that adoption by a relative was being pursued.

      David filed a motion for continuance, requesting an opportunity to

complete the services in his plan. David, however, had not even begun his

service plan (except to the extent, if any, that the parenting, drug and alcohol

classes he took in jail satisfied any aspect of the plan), which required him to

participate in parenting classes through the Child and Family Guidance Center;

demonstrate the ability to participate in the rearing of D.B. while he was in the

possession of the foster home caregivers; maintain stable housing, employment,

and transportation; undergo a drug/alcohol assessment through Resource

                                       13
Recovery, including random urinalyses; maintain a visitation schedule with D.B.;

participate in and follow the recommendations of the individual counseling

offered through Positive Influence; undergo a psychological evaluation through

Positive Influence; comply with the requirements of his probation and his

probation officer; and maintain contact with the CPS worker. David could not

have started and completed all of the required services between his December

21, 2007 expected release date and the completion date listed in the service

plan—January 31, 2008. And David’s motion for continuance failed to allege

exactly how long he thought it would take him to complete these various

services. Moreover, during his months in jail, David had not communicated

with the CPS case worker or responded to her correspondence.

      The record demonstrates that David had approximately four months’

notice of the trial setting but waited to file a motion for continuance until the

morning that the case was called for trial. Although David knew his expected

release date, he did not communicate it to his caseworker or move for a

continuance sooner to enable him a better opportunity to start and complete all

the services between his December 21, 2007 release date and the January 31,

2008 compliance date set forth in the initial service plan.

      Additionally, David’s motion for continuance and his arguments in support

of the motion do not claim that he was unprepared for trial. David has thus

                                       14
failed to demonstrate that the trial court abused its discretion by denying his

motion for continuance. See E.L.T., 93 S.W.3d at 375. We therefore overrule

David’s first point.

                       IV. F INDINGS S UPPORTING T ERMINATION

      A.    Section 161.002 Finding

      Although David raises legal and factual sufficiency challenges to the trial

court’s findings that he knowingly placed D.B. with persons or allowed D.B. to

remain in conditions that endangered D.B.’s physical or emotional well-being,

he did not challenge the trial court’s finding that his rights should be terminated

under section 160.002(b)(1). TDFPS argues that the trial court’s judgment

should be affirmed based on this unchallenged finding.

      Section 161.002(b)(1) provides that “[t]he rights of an alleged father may

be terminated if: (1) after being served with citation, he does not respond by

timely filing an admission of paternity or a counterclaim for paternity under

Chapter 160.” T EX . F AM. C ODE A NN. § 161.002(b)(1) (Vernon Supp. 2007).

Subsection (b)(1) thus allows a trial court to summarily terminate the rights of

an alleged biological father who does not assert his paternity by filing an

admission of paternity or a counterclaim for paternity. Id.; see Phillips v. Tex.

Dep’t of Protective & Regulatory Servs., 25 S.W.3d 348, 357 (Tex.

App.—Austin 2000, no pet.). If the alleged father does file an admission of

                                        15
paternity or a counterclaim for paternity, then subsection (a) allows the alleged

biological father “to stave off summary termination of his rights and require[s

TDFPS] to meet the high burden of proof found in section 161.001” of the

Texas Family Code. Phillips, 25 S.W .3d at 357; see T EX. F AM. C ODE A NN. §

161.002(a). Therefore, by filing an admission or counterclaim for paternity, the

alleged father is given the right to require TDFPS to prove by clear and

convincing evidence that he engaged in one of the types of conduct listed in

section 161.001(1) and that termination is in the best interest of the child.

Phillips, 25 S.W.3d at 357. If the alleged father, however, does not file such

an admission or counterclaim, then subsection (b) permits the trial court to

summarily terminate his parental rights without TDFPS’s having to meet the

high burden of proof found in section 161.001. See T EX. F AM. C ODE A NN . §

161.002(a); Phillips, 25 S.W.3d at 357.

      TDFPS in its brief characterizes the record as “factually confusing

regarding this issue,” and our review of the record confirms this. After David

was served, he filled in the blanks on a preprinted “Request for Counsel,” which

stated that he was “a parent of the child named above.” David’s appointed

counsel thereafter filed a general denial that did not mention paternity.

Following the April 2007 status hearing, the trial court ordered a paternity test;

however, no paternity test results appear in the record. During the termination

                                       16
trial, David testified that he is D.B.’s father, that he had raised D.B. from birth,

and that he remained the person responsible for D.B.; no contrary evidence was

admitted. At the end of the trial, the trial court took judicial notice, without

objection, that “there is a Certificate of Paternity Registry Search on file in this

case indicating that a diligent search of the Paternity Registry has been made,

and no notice of intent to claim paternity has been located concerning the child

the subject of this suit.”

      Because David failed to challenge this ground on appeal, TDFPS requests

that we affirm the termination of his parental rights based solely on this ground.

See In re A.D., No. 04-02-00310-CV, 2002 WL 31829510, at *2 (Tex.

App.—San Antonio Dec. 18, 2002, no pet.) (not designated for publication)

(affirming termination because appellant, one of multiple alleged biological

fathers, failed to file an admission of paternity or counterclaim for paternity

under section 161.002(b)(1)).       However, we question the applicability of

section 161.002 based on the factual background described above and based

on the limited case law addressing this issue. Therefore, in the interest of

justice and because we are required to strictly construe involuntary termination

statutes in favor of the parent, we will proceed to analyze the sufficiency of the

evidence to support the trial court’s other section 161.001 findings. See Holick




                                        17
v. Smith, 685 S.W.2d 18, 20–21 (Tex. 1985); In re E.M.N., 221 S.W.3d 815,

820 (Tex. App.—Fort Worth 2007, no pet.).

      B.    Section 161.001 Findings

      In his second through sixth points, David argues that there is legally and

factually insufficient evidence to prove that he violated section 161.001(1)(D)

and (E) and that termination is in D.B.’s best interest. TDFPS responds that the

evidence is legally and factually sufficient to support the trial court’s findings.

            1.     Standard of Review

      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subdivision (1) of the statute and must also prove that termination

is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001 (Vernon

Supp. 2007); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must

be established; 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).

      Termination of parental rights is a drastic remedy and is of such weight

and gravity that due process requires the petitioner to justify termination by

clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);

In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls

                                        18
between the preponderance standard of ordinary civil proceedings and the

reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d

846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth

2006, pet. denied). It is defined 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.” T EX. F AM. C ODE A NN. § 101.007

(Vernon 2002).

      In reviewing the evidence for legal sufficiency in parental termination

cases, we must determine whether the evidence is such that a fact-finder could

reasonably form a firm belief or conviction that the grounds for termination

were proven.     In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).           We must

review all the evidence in the light most favorable to the finding and judgment.

Id. This means that we must assume that the fact-finder resolved any disputed

facts in favor of its finding if a reasonable fact-finder could have done so. Id.

W e must also disregard all evidence that a reasonable fact-finder could have

disbelieved. Id. We must consider, however, undisputed evidence even if it is

contrary to the finding. Id. That is, we must consider evidence favorable to

termination if a reasonable fact-finder could and disregard contrary evidence

unless a reasonable fact-finder could not. Id.




                                        19
      We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness credibility issues that depend on

the appearance and demeanor of the witnesses, for that is the fact-finder’s

province. Id. at 573, 574. And even when credibility issues appear in the

appellate record, we must defer to the fact-finder’s determinations as long as

they are not unreasonable. Id. at 573.

      In reviewing the evidence for factual sufficiency, we must give due

deference to the fact-finder’s findings and not supplant the judgment with our

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

whether, on the entire record, a fact-finder could reasonably form a firm

conviction or belief that the parent violated the environmental endangerment or

course of conduct endangerment provisions found in section 161.001(1)(D) and

(E) and that the termination of the parent’s parental rights would be in the best

interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of

the entire record, the disputed evidence that a reasonable fact-finder could not

have credited in favor of the finding is so significant that a fact-finder could not

reasonably have formed a firm belief or conviction in the truth of its finding,

then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.




                                        20
            2.    Endangerment Law and Analysis

      Endangerment means to expose to loss or injury, to jeopardize. Boyd,

727 S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort

Worth 2003, no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).

To prove endangerment under subsection (D), TDFPS had to prove that David

(1) knowingly (2) placed or allowed D.B. to remain (3) in conditions or

surroundings that endangered his physical or emotional well-being. See T EX.

F AM. C ODE A NN. § 161.001(1)(D). Under section 161.001(1)(E), the relevant

inquiry is whether evidence exists that the endangerment of D.B.’s physical

well-being was the direct result of David’s conduct, including acts, omissions,

or failures to act. J.T.G., 121 S.W.3d at 125; see T EX. F AM. C ODE A NN. §

161.001(1)(E). Additionally, termination under section 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. J.T.G., 121 S.W.3d at

125; see T EX. F AM. C ODE A NN. § 161.001(1)(E). However, it is not necessary

that the parent’s conduct be directed at the child or that the child actually

suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The

specific danger to the child’s well-being may be inferred from parental

misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d

732, 738 (Tex. App.—Fort Worth 2004, pet. denied). To determine whether

                                      21
termination is necessary, courts may look to parental conduct occurring both

before and after the child’s birth.    In re D.M., 58 S.W.3d 801, 812 (Tex.

App.—Fort Worth 2001, no pet.).

      Stability and permanence are paramount in the upbringing of children.

See In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet.

denied). A fact-finder may infer from past conduct endangering the well-being

of the child that similar conduct will recur if the child is returned to the parent.

See In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied),

disapproved on other grounds by J.F.C., 96 S.W.3d at 256, and C.H., 89

S.W.3d at 17. Drug use and its effect on a parent’s life and his ability to

parent may establish an endangering course of conduct. Dupree v. Tex. Dep’t

of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas

1995, no writ).

      Evidence of criminal conduct, convictions, and imprisonment prior to the

birth of a child will support a finding that a parent engaged in a course of

conduct that endangered the child’s well-being. J.T.G., 121 S.W.3d at 133.

While imprisonment alone does not constitute a continuing course of conduct

that endangers the physical or emotional well-being of a child, it is a fact

properly considered on the issue of endangerment. Boyd, 727 S.W.2d at 533–

34; R.W., 129 S.W.3d at 743–44.

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      The record contains substantial evidence of subsection (D) environmental

endangerment and subsection (E) course of conduct endangerment to the

physical or emotional well-being of D.B.    Because the evidence concerning

these two statutory grounds for termination is interrelated, we consolidate our

examination of it. See J.T.G., 121 S.W.3d at 126.

      The record demonstrates that David had a history of illegal drug use.

David admitted that he had consistently used his bi-monthly paycheck to

purchase cocaine; he used cocaine approximately every two weeks after he

was paid. David acknowledged that it was not a smart decision for him to use

drugs while he was D.B.’s primary caretaker. In addition, David has a lengthy

criminal history, including over 160 arrests for charges such as robbery,

unauthorized use of a vehicle, failure to identify a fugitive from justice,

possession of a controlled substance, evading arrest, and forgery of his

mother’s checks, for which he was serving a one-year sentence in state jail at

the time of the trial. The record also demonstrates that David relied on others

to parent D.B., not just while he was in jail but also while he was out of jail,

and that the people whom he chose to watch D.B. often were not capable of

providing adequate care for D.B. For instance, David left D.B. with his diabetic

mother despite her poor health and inability to adequately care for herself.




                                      23
When David was told about Hodges’s decision to no longer care for D.B., David

responded that D.B. “might as well be left in [foster] care.”

          We have carefully reviewed the entire record. Looking at the evidence in

the light most favorable to the trial court’s findings, giving due consideration to

evidence that the trial court, as fact-finder, could reasonably have found to be

clear and convincing, we hold that the court reasonably could have formed a

firm belief or conviction that David knowingly placed D.B. in conditions and

engaged in conduct that endangered D.B.’s physical or emotional well-being.

See T EX. F AM. C ODE A NN. § 161.001(1)(D), (E); J.F.C., 96 S.W.3d at 265–66;

C.H., 89 S.W.3d at 25; J.T.G., 121 S.W.3d at 124; In re T.J., No. 02-05-

00353-CV, 2006 WL 820518, at *6 (Tex. App.—Fort Worth Mar. 30, 2006,

no pet.) (mem. op.) (holding that mother’s and father’s criminal history and

illegal    drug      use    provided   sufficient   basis   to   establish   environmental

endangerment and course of conduct endangerment). Accordingly, we hold

that the evidence is legally and factually sufficient to support the trial court’s

finding on environmental endangerment and course of conduct endangerment.

We overrule David’s second, third, and fourth points.

                3.         Best Interest Law and Analysis

          In his fifth and sixth points, David argues that the evidence is legally and

factually insufficient to support the trial court’s finding that termination of his

                                              24
parental rights was in D.B.’s best interest. TDFPS contends that the evidence

is legally and factually sufficient to support the trial court’s “best interest”

finding.

      Prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest. T EX. F AM. C ODE A NN. § 263.307(a)

(Vernon 2002). There is also a strong presumption that keeping a child with

a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.

2006). Nonexclusive factors that the trier of fact in a termination case may use

in determining the best interest of the child include: (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 individuals 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 these individuals or by the agency seeking custody; (7) the

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

parent which 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. Holley

v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

      These factors are not exhaustive; some listed factors may be inapplicable

to some cases; other factors not on the list may also be considered when

                                        25
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just

one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child. Id. On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

      Regarding the first factor, D.B. did not testify at trial. However, the

evidence demonstrated that David had not seen D.B. in almost two years and

that David had not sent D.B. any letters nor asked to receive photos of D.B.

while he was incarcerated.

      Regarding the second factor—the child’s present and future physical and

emotional needs—Odelusi testified that D.B. had been moved from a basic

foster home to a therapeutic foster home to address his delayed developmental

issues, including his inability to speak, walk, smile, and attach well with others

and his problems with hoarding food. While in foster care, D.B. has received

occupational, physical, play, and speech therapies and has enrolled in a

preschool for children with disabilities.

      The environmental endangerment and endangering course of conduct

discussion above addressed the third, fourth, and eighth factors—the present

and future physical and emotional dangers to D.B., as well as David’s parenting

abilities, or lack thereof, and his acts and omissions.

                                       26
      Concerning the fifth factor, David attempted to better himself while in jail

by attending CHANGES, parenting classes, and drug and alcohol classes. After

he is released, he plans to get a job, get stable, and take the classes that he

needs to take to get his son back.

      Regarding the party’s plans for the child—the sixth factor—David testified

that he is not in a position at this moment to care for D.B. because he is in jail.

TDFPS requested that David’s parental rights be terminated because of D.B.’s

disabilities, which were being treated in foster care, and because D.B. had

suffered from neglect and needed a stable place.        Thus, TDFPS is actively

pursuing an adoptive placement for D.B.

      Regarding the stability     of the proposed placement—the seventh

factor—the evidence demonstrated that terminating David’s parental rights

would allow TDFPS to pursue adoptive placement for D.B., which would allow

him to have the stability that was lacking in his previous environment.

      Finally, concerning the ninth factor—any excuse for the parent’s acts or

omissions—David admitted that he made mistakes and that he would attempt

to turn his life around once released from jail.

      Looking at all of the evidence in the light most favorable to the best-

interest finding, we hold that a reasonable trier of fact could have formed a firm

belief or conviction that its finding was true. See J.F.C., 96 S.W.3d at 266;

                                        27
J.T.G., 121 S.W.3d at 124–25.         Additionally, giving due consideration to

evidence that the fact-finder could have found to be clear and convincing, and

based on our review of the entire record, we hold that a reasonable trier of fact

could have formed a firm belief or conviction that termination of David’s

parental rights would be in the best interest of D.B. See In re W.E.C., 110

S.W.3d 231, 247 (Tex. App.—Fort Worth 2003, no pet.); In re S.M.L., 171

S.W.3d 472, 480 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that

clear and convincing evidence existed that termination of father’s parental

rights was in child’s best interest where, among other factors, father was

incarcerated at time of termination hearing and had a pattern of criminal and

violent conduct). Accordingly, we hold that the evidence is legally and factually

sufficient to support the trial court’s best-interest finding. We overrule David’s

fifth and sixth points.
                                 V. C ONCLUSION

      Having overruled David’s six points, we affirm the trial court’s judgment

terminating his parental rights to D.B.




                                                  PER CURIAM

PANEL F:    WALKER, GARDNER, and MCCOY, JJ.

DELIVERED: June 26, 2008


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