Opinion issued February 5, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00751-CV
                            ———————————
      IN THE INTEREST OF E. L. A. III AND A. J. E. A., CHILDREN



                    On Appeal from the 313th District Court
                            Harris County, Texas
                      Trial Court Case No. 2017-03501J


                          MEMORANDUM OPINION

      E.L.A., Jr. (Father) is appealing the trial court’s order terminating his parental

rights to his son, E.L.A. III (Eddie), and his daughter, A.J.E.A. (Amy). On appeal,

Father argues that there is legally and factually insufficient evidence supporting the

trial court’s findings that (1) he committed the predicate acts under Family Code

subsections 161.001(b)(1)(D), (E), and (O); and (2) termination of his parental rights
is in Eddie’s and Amy’s best interest. See TEX. FAM. CODE § 161.001(b)(1)(D), (E),

& (O), 161.001(b)(2). We affirm the trial court’s order.

                                    Background

      On June 24, 2017, the Department received a referral of neglectful supervision

of Eddie and Amy after Father assaulted Mother while she was holding two-month

old Amy, causing Amy to fall and hit her head. Eddie, who was almost two years

old at the time, witnessed the assault. Mother had visible bite marks on her arms, a

scar on her leg, and other unspecified injuries. According to the referral, Mother and

Eddie accompanied Amy to the hospital, where Amy was evaluated and released the

same day. Two days later, the Department filed an Original Petition for Protection

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

Child Relationship seeking conservatorship of Eddie and Amy and termination of

Mother’s and Father’s parental rights to both children.

A.    Testimony of Ta’Nesha Pinson

      The Department called caseworker Ta’Nesha Pinson as its first witness at the

final permanency hearing on June 6, 2018. Pinson, who interviewed Mother at the

hospital, testified that Mother claimed that Father had bullied her towards the door

of the apartment and chased her when she fled outside with Amy in her arms. Father

bit Mother during the chase and she and Amy fell to the ground, causing Amy to hit

her head. During the interview, Pinson noticed that Mother had bite marks on her


                                          2
arms and that she was given a tetanus shot. Mother also told Pinson that Father had

been had been physically abusing her since Eddie was about six months old, which

is approximately February 2016. Among her other injuries, Mother claimed that

Father had broken her leg and stabbed her. She confessed to Pinson that she never

reported the abuse because she was in love with him.

      Mother told Pinson that her relationship with Father was on and off and that

she took care of Eddie and Amy when she visited Father. Mother had been living

with Father and the children since Amy was born in April 2017, but she planned to

move to Nebraska. Although she initially denied using drugs, Mother admitted to

Pinson that she had recently smoked marijuana and had been using the drug while

breastfeeding Amy. She stated she had lived with family members and in motels

before moving in with Father. Mother told Pinson that Father had been honorably

discharged from the military and suffered from Post-Traumatic Stress Disorder. He

was not employed, and he drank a lot. She also admitted that she and Father do not

get along and that he only wants her around to watch the children.

      Mother told Pinson she has a criminal history dating back to 2005, including

a June 2014 conviction for felony prostitution, and for which she was sentenced to

150 days in jail, an April 2016 conviction for criminal trespass, and a November 14,

2016 charge for assault of a family member. Mother also admitted she has been




                                         3
diagnosed with bipolar disorder, but she was not under the care of a doctor and was

not currently on any medication.

      Mother disclosed that Eddie and Amy are the youngest of her five children.

Her first three children were placed in the Department’s care in March 2014 after

she tested positive for cocaine when her third child was born. Mother’s parental

rights to these children were terminated in May 2016 based on subsections (E) and

(O) based on the court’s findings that she engaged in criminal conduct and did not

complete her family service plan.

      Mother became pregnant during the pendency of that case and gave birth to

Eddie on August 19, 2015. Pinson testified that the Department received a referral

of neglectful supervision and physical abuse of Eddie on November 16, 2016.

According to the referral, Father had grabbed Eddie by the hair and tossed him onto

the bed. Eddie was fourteen-months old at the time. That case, which was opened

due to concerns of domestic violence, was pending when the Department received

the June 2017 referral.

B.    Testimony of Bruce Jefferies

      Bruce Jeffries, an expert in interpreting narcotics test results, testified that

Father tested positive for narcotics use several times during the pendency of this

case. According to Jefferies, Father’s test results indicate that he was a heavy

marijuana user at one point and that he has used cocaine on more than one occasion,


                                          4
but he is not a regular user. Father’s test results, which were admitted into evidence

during the hearing, reflect that Father’s hair follicle specimen tested positive for

cocaine on July 6, 2017, August 18, 2017, and April 25, 2018. Father also tested

positive for marijuana in July 2017 (hair and urine specimens), August 2017,

November 2017 (hair and urine specimens), December 2017 (hair only), January

2018 (hair only), February 2018 (hair only), and June 2018 (hair only). 1 The hair

follicle specimen that Father submitted in July 2017 was also positive for

methamphetamine.

C.    Testimony of Father

      Father also testified at the hearing. Father admitted that he assaulted Mother

on October 11, 2016; he pleaded guilty to a charge of assault and was placed on nine

months’ deferred adjudication/community supervision. Father was on deferred

adjudication/community supervision for the 2016 assault when he assaulted Mother

again on June 24, 2017. Father testified that this was the first time that he bit Mother.

Father pleaded guilty to the 2017 assault charge and was placed on

adjudication/community supervision again.




1
      Father’s urine and hair follicle tests in March, April, and May 2018 were negative
      for marijuana.
                                           5
      Father denied having a problem managing his anger and characterized the

2016 and 2017 assaults on Mother as simply “mistakes.”2 Father denied ever

stabbing Mother or grabbing Eddie by the hair and throwing him onto a bed, as

Mother claimed. He testified that Mother could have misstated things or lied. Father

also denied that he had ever been diagnosed with PTSD or any mental disorder.

When asked about the results of the psychological assessment he submitted to as

part of his family service plan, Father testified that he was not aware that the doctor

who conducted his assessment had diagnosed him with bipolar disorder.

      When asked about his drug use, Father stated he started using marijuana in

2012 or 2013, after his honorable discharge from the military. Father admitted that

he and Mother lived together on and off from late 2014 until this case began in June

2017 and that they smoked marijuana when they were together, both before and after

their children were born. Eddie was born on August 19, 2015 and Amy was born on

April 2, 2017. Father testified that he always had custody of the children and that he

was their primary caregiver. Father admitted that he had been a heavy marijuana user

prior to Amy’s birth. Father minimized the impact of his drug use on his children,

however, by claiming that he went outside to smoke marijuana and did not use drugs

in front of Eddie. He also testified that Mother, who was “running the streets” at the



2
      The record reflects that Father was also convicted of threatening another woman
      with bodily harm in 2013.
                                          6
time, did not live with him and the children after Amy was born. Mother would,

however, stay with them for a few days at a time and he and Mother would both use

marijuana while caring for the children during her visits. He knew that Mother

breastfed Amy, but he denied that she was using marijuana when she was

breastfeeding.

      Father stated he believed he could provide a safe and stable environment for

the children. He explained that he had served in the Navy for four years and in the

Army Reserves for two years and was honorably discharged. He received income

through a Post-9/11 GI Bill and had an award letter that pays for his schooling at the

Aviation Institute of Maintenance. Father testified that he planned to become

certified as an aviation airplane and power plane mechanic. Father stated he had been

living in the same apartment for a year and had a lease that was to expire at the end

of the month. Father told the court that the Department did not inspect his home,

even though he called them several times. He explained that he was looking into

enrolling Eddie in day care and that he had a good support system, including his

mother and brother, who will watch Amy and Eddie while he attends school.

      Father testified that he has visited with the children regularly since the case

began and he brought food and clothes to the visits. According to Father, he and the

children had a great time during the visits. He said that Eddie runs into his arms and




                                          7
Amy gives him hugs and kisses. He denied taking naps during visits but admitted

that he nodded off one time while holding Amy.

      Father testified that he completed all the tasks in his service plan. Specifically,

he completed a substance abuse treatment program on January 25, 2018, the BIPP

program (Battering Intervention and Prevention Program) on September 26, 2017,

and anger management classes on January 26, 2018. He stated he got a certificate

for completion of his parenting classes in November 2017. Father testified that these

classes taught him how to respect his partner, control his emotions, and appropriately

discipline his children. He also stated he did not understand that he had to test

negative on every single drug test to comply with his plan.

      Father admitted that it was a mistake for him to have used marijuana while

caring for the children and testified that the mistake had been fixed because he was

now drug-free. He stated he does not currently use drugs and will not return to using

them. He also denied ever using cocaine, despite drug test results to the contrary. He

stated that his marijuana levels were the highest at the beginning of this case and had

since decreased to zero. He claimed that the positive drug test results for cocaine and

methamphetamine were wrong. Father speculated that the last time he smoked

marijuana was probably in August or September 2017. When asked about Jeffries’s

testimony that he had high levels of marijuana in January 2018, Father responded




                                           8
that his urine test was negative, and that the marijuana was only showing up in his

hair follicle test.3

        Father also testified that it was a mistake for him to hook up with Mother, use

drugs with her, and assault her. He claimed that he had not had any contact with her

since the case started and he did not intend to contact her in the future.

        At the end of Father’s testimony, the court recessed the hearing until July 12,

2018.

D.      Further Testimony of Bruce Jeffries

        When trial resumed on July 12, 2018, Bruce Jeffries was asked to take the

stand again. Jeffries testified that Father had submitted to another drug test the day

of the last hearing, June 6, 2018. Father’s zero tolerance drug test result from that

day was positive for marijuana. Jeffries stated if he had run a normal standard panel

test, as opposed to a zero-tolerance panel, Father’s result would have been negative.

Jeffries stated that if Father had stopped all drugs when the case started in June 2017,

the zero-tolerance panel test should have been zero.




3
        Jefferies testified that marijuana can be detected in a hair follicle for months after
        use.
                                              9
E.    Testimony of Donquetta Simmons

      Donquetta Simmons, Pinson’s supervisor, told the court that she has been the

supervisor assigned to this case since the children came into the Department’s care

in 2017.

      Simmons testified that the Department recommends terminating Mother’s and

Father’s parental rights to both children. According to Simmons, termination of

Mother’s rights is appropriate and in the children’s best interest because Mother has

effectively abandoned the children. Mother has not made any effort to visit Eddie

and Amy or provided any support for them since they came into the Department’s

care. She has been a “no-show” throughout the proceeding. Simmons testified that

termination of Father’s parental rights was also appropriate and, in the children’s

best interest, because Father has engaged in endangering behavior, as evidenced by

his continued use of illegal drugs and his history of domestic violence.

      Simmons explained that the Department was concerned about Father’s ability

to provide a stable home for the children, given his inability to maintain sobriety.

Specifically, Father has tested positive for drugs throughout the case and that

Father’s drug use is dangerous to the children because they are very young and

cannot take care of themselves. The children depend on stable adults who are in their

right mind to care for them. Simmons testified that Father had admitted that he and

Mother used drugs while they were living together and raising their children and that


                                         10
there had been instances of domestic abuse, including a 2016 assault that occurred

when Mother was pregnant with Amy.

       Father’s illegal drug use is also dangerous to the children because he received

deferred adjudication for the June 2017 assault on Mother, and a condition of his

deferment required him to refrain from using illegal drugs. If Father fails to complete

his deferment conditions, he may be incarcerated, in which case the children would

likely come back into the Department’s care and the conservatorship process would

start all over again.

       Simmons testified that although Father had been provided with a family

service plan and as well as the resources and tools he needed to be reunited with the

children, he did not complete all the plan’s requirements for reunification. Among

other things, Simmons testified that Father had not been successfully discharged

from individual therapy, maintained sobriety, or shown he had learned anything

from the services he did complete. Specifically, Simmons noted that although Father

completed a domestic violence course, he has been aggravated, agitated and

aggressive on the phone. As a result, she opined, he has not shown that he is able to

stabilize his mood or behavior because. Simmons acknowledged, however, that this

behavior could have been because of his frustration over having his children in the

Department’s care.




                                          11
      Simmons further testified that Father has not demonstrated that he

understands how his past behavior has affected Amy and Eddie, as evidenced in part

by his behavior during his visits with the children. Although he visits with the

children monthly, Father has fallen asleep and has left the children crying while he

takes a phone call during visits. During one visit, she noted, the Department had to

contact security due to Father’s “outburst and loud behavior.” She stated that after

visits with Father and being returned to the foster parents, Eddie would have

increased night terrors, and increased aggression, and crying.

      Simmons testified that the Department’s goal is unrelated adoption. She

explained that Eddie and Amy are happy, playful, well-adjusted and have a close

relationship with their foster parents. The foster parents take Eddie and Amy to

therapy, medical and dental appointments and have placed them in daycare. Unlike

Father, the children’s foster parents do not have a criminal history and neither parent

has ever tested positive for drugs. According to Simmons, the children have had less

anxiety since being in their foster home and Eddie, in particular, has been acting out

less. Simmons has no concerns with Eddie and Amy being placed for adoption with

the foster parents.

F.    Testimony of Ayeshia Powell

      Child Advocates, Inc., through the volunteer advocate of record, Ayeshia

Powell, also testified. Powell told that court that she has been involved with Eddie


                                          12
and Amy since the case began and that she had observed the children interact with

their foster family and with Father.

      Powell testified that children have made significant progress since coming

into care. According to Powell, when Eddie first came into the Department’s care,

he was aggressive and quiet, and he did not like to have his diaper changed. Although

Eddie’s behavior has improved since he began living with his foster family, he tends

to regress after visits with Father. According to Powell, she saw Eddie after three

visits with Father. Each time, she observed, Eddie was aggressive and he withdrew

into himself and did not want to interact with others. Powell further testified that

when Amy came into the Department’s care, she had acid reflux and did not appear

to be getting the care she needed, but now she is caught up on her immunizations,

gaining weight, and meeting her developmental milestones.

      According to Powell, Eddie and Amy have a strong bond with their foster

parents, whom they call “mommy” and “daddy.” The children are affectionate

towards their foster parents, and Amy cries and tries to follow her foster mother if

she leaves the room. Child Advocates does not have any concerns about the foster

family’s ability to care for the children.

      Powell’s supervisor, Nicholas Alvarado, testified that he had concerns about

Father’s ability to provide the children with a safe home environment. Specifically,

Alvarado noted that Father has difficulty controlling his emotions, behaves


                                             13
erratically, and becomes aggressive and yells. Alvarado was particularly concerned

about Father’s ability to care for Eddie, given Eddie’s anger and behavioral issues.

Alvarado also expressed concerns about Father’s history of domestic abuse and

illegal drug use.

      Alvarado testified that when he visited Father’s apartment in February 2017,

the home was unfurnished, aside from a bed in the master bedroom and a dresser

and TV in a second bedroom, and there was no cover on the furnace. He testified

that since Father furnished the home, he has not asked him to reinspect it. Alvarado

testified that termination of Father’s and Mother’s parental rights was in the

children’s best interest because Child Advocates did not believe that Father would

be able to provide Eddie and Amy with the consistent care and the therapy sessions

they would need.

G.    Further Testimony of Father

      Father testified regarding some changes in his circumstances since the last

hearing. Specifically, Father testified that he was now employed with Greenfield

Aviation as an apprentice technician/aircraft-mechanic and worked in the composite

shops. He stated he earns $11.50 an hour and purchased a 2017 Nissan Altima. He

stated he also renewed the lease to his apartment. Father denied using drugs.

      Father denied being aggressive, yelling, or using foul language when he spoke

to Simmons and claimed that he was just frustrated, and he missed his babies. He


                                         14
stated he completed his service plan and was told by the Department that he did.

Father stated he equipped his apartment for his children to return home and felt it

was in their best interest that the children be returned to his care.

      When asked about his drug use, Father stated it had been a while since he used

drugs and although he could not recall an exact date, he knew he did not use any

illegal substances in 2018. He speculated that it was probably before

November/December 2017 and claimed that his drug tests proved that. Father

acknowledged he used marijuana in the past to cope with stress but said that he does

not need it anymore.

H.    Testimony of Foster Parents

      Amy’s and Eddie’s foster parents also testified at the hearing. Their foster

mother testified that the children had been living with them since October 2017 and

that they wanted to adopt both children if Mother’s and Father’s parental rights were

terminated. Eddie’s foster mother testified that Eddie had significant behavioral and

anger issues when he first came to live with them. He was afraid of being hit and

needed constant reassurance that he would not be struck while living in their home.

Among other things, Eddie had several tantrums a day when he first came to live

with them. She described one tantrum that lasted almost two hours, during which

time he hit his head against a wall and scratched his arms. Eddie’s behavior has

improved through weekly therapy sessions. Now, he shows aggressive behavior,


                                           15
such as biting, kicking, and pulling hair, only after he visits with Father. After his

visits with Father, Eddie also talks about things that scare him and does not let his

foster parents change his diaper. The foster mother recounted one morning after a

visit when she found Eddie smearing himself with feces. Eddie also has very

controlling behaviors with respect to food. According to his foster mother, Eddie

experiences night terrors for as long as ten days after his visits with Father. He has

had as many as eight episodes in one night. She stated that it can take her and her

husband several days to help Eddie calm down after a visit with Father.

      The foster mother stated she follows the recommendations of Eddie’s

therapist and has strict schedules in place and a therapy table for Eddie. Eddie’s

immunizations are up to date, and she takes him for all his scheduled appointments

with his doctor, his dentist, and his therapist.

      With respect to Amy, the foster mother testified that the baby initially had

reflux and vomited a lot, but her condition improved when they switched her to

goat’s milk. Other than that, Amy was “a great growing toddler.”

      The foster mother confirmed that the children were attached her and her

husband. Amy does not like other adults. The foster mother stated she believed she

and her husband could provide the children stability, love, and nurturing. She stated

that she and her husband had been married for five years and had lived in their

current home for two years.


                                           16
      The children’s foster father testified that he wants children to grow up in a

safe and loving environment and he wants them to be healthy, both physically and

emotionally. He stated that Eddie refers to him as “daddy.”

I.    Kimberly Zander

      Eddie’s therapist, Kimberly Zander, also testified at the hearing and her

therapy notes were admitted into the record, including a report she prepared. Zander

stated that Eddie was referred to her for behavior issues such as aggression, temper

tantrums, and night terrors. She has been treating Eddie once or twice a week since

January 2018.

      Zander testified that at the beginning of his therapy Eddie was very chaotic

and felt a very strong need for control. Although Eddie’s behavior has regressed

from time to time, Zander stated that Eddie he has made tremendous. Eddie is now

able to separate more easily from family members, experiences fewer night terrors,

and is learning alternative behaviors for expressing frustration and anger.

      Zander’s report noted that Eddie has demonstrated behaviors that supported a

diagnosis of PTSD, which manifests in symptoms of separation anxiety, night

terrors, and physical aggression. Zander testified that Eddie has engaged in post-

traumatic play on multiple occasions during his therapy sessions, including several

instances with baby dolls. Post-traumatic play occurs when young children reenact

trauma they have previously experienced. On one occasion, Eddie threw a baby doll


                                         17
in the bed, told it to go to sleep, and then started hammering on it. On a separate

occasion, Eddie pretended to feed a baby doll but then grabbed a broom and hit the

baby with the broom. She also testified that food is very important to Eddie and that

she believes that its importance to him indicates that Eddie has experienced some

type of food insufficiency.

      Zander’s notes also reflect that Eddie told his foster mother one time that,

“Bad guy hurt neck. My dad hurt neck.” The next month, the foster mother told

Zander that she heard Eddie talking to an imaginary person he called “bad guy,” and

that Eddie told his friend, “Bad guy, no owie me.” Later that same month, Eddie

woke up during the night in distress and repeatedly hit his foster mother.

      Zander, who had observed one visit between Father and the children, noted

that Eddie was affectionate to Father and that Father read books to both children

during the visit. Zander was concerned, however, that Father was unable to read

emotional cues from the children. Specifically, Zander noted that Father and Eddie

had been playing roughly and that although Eddie clearly wanted to stop, Father did

not seem to recognize this. She also saw noticed that Eddie would mimic some of

Father’s behaviors in the playroom after a visit, such as spitting.

      Zander also noted that visits with Father tended to exacerbate Eddie’s

aggressive and controlling behaviors and that Eddie would experience an increase in

night terrors and regressed behavior for several afterward. Zander opined that


                                          18
returning Eddie and Amy to Father’s care would be detrimental to their future

development and mental health because the Department’s records indicated that

Father was the perpetrator of the violence that caused Eddie’s PTSD and triggers his

recurring symptoms.

      Zander testified that Eddie is very bonded with his foster parents. She stated

that structure, consistency, and a lot of positive reinforcement are the best practices

with children like Eddie who have experienced trauma. Based on her observations,

Zander concluded the foster parents were able provide the safe, structured, and

predictable environment that Eddie needed to thrive.

                            Sufficiency of the Evidence

      In three issues, Father argues on appeal that there is legally and factually

insufficient evidence supporting the trial court’s findings that: (1) he committed the

predicate acts under sections 161.001(b)(1)(D), (E), and (O); and (2) termination of

his parental rights is in Eddie’s and Amy’s best interest.

A.    Standard of Review and Applicable Law

      A parent’s right to the care, custody, and control of his child is a liberty

interest protected under the Constitution, and we strictly scrutinize termination

proceedings on appeal. See Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct.

1388, 1397 (1982); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear




                                          19
and convincing evidence must support an involuntary termination. Holick, 685

S.W.2d at 20 (citing Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92).

      Clear and convincing evidence is “the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” TEX. FAM. CODE § 101.007. “This standard

guards the constitutional interests implicated by termination, while retaining the

deference an appellate court must have for the factfinder’s role.” In re O.N.H., 401

S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.). Thus, we do not re-weigh

issues of witness credibility but defer to the factfinder’s reasonable determinations

of such matters. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

      In conducting a legal-sufficiency review in an appeal from a termination case,

we look at all the evidence in the light most favorable to the finding to determine

whether a reasonable trier of fact could have formed a firm belief or conviction that

its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that

the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder

could do so, disregarding all evidence that a reasonable factfinder could have

disbelieved or found to have been incredible. See id. If, after conducting a legal

sufficiency review of the record, we determine that no reasonable factfinder could

form a firm belief or conviction that the matter that must be proven is true, then we

must conclude that the evidence is legally insufficient. See id.


                                           20
      In conducting a factual-sufficiency review in a parental-rights-termination

case, we determine whether, considering the entire record, including evidence both

supporting and contradicting the finding, a factfinder reasonably could have formed

a firm conviction or belief about the truth of the matter on which the Department

bore the burden of proof. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should

consider whether the disputed evidence is such that a reasonable factfinder could not

have resolved the dispute in favor of its finding. See In re J.F.C., 96 S.W.3d at 266–

67. “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. at 266.

      To prevail in a termination case, the Department must establish that one or

more of the acts or omissions enumerated under Texas Family Code subsection

161.001(b)(1) occurred and that the termination is in the best interest of the child,

pursuant to subsection 161.001(b)(2). See TEX. FAM. CODE § 161.001(b); see also In

re C.H., 89 S.W.3d at 23. “Only one predicate finding under section [161.001(b)(1)]

is necessary to support a judgment of termination when there is also a finding that

termination is in the child’s best interest.” In re A.V., 113 S.W.3d 355, 362 (Tex.

2003).




                                           21
B.    Sufficiency of the Evidence Supporting Termination of Father’s Rights
      Pursuant to Subsections 161.001(b)(1)(D) & (E)

      In his first issue, Father argues that legally and factually insufficient evidence

supports the trial court’s finding he committed the predicate act under subsections

161.001(b)(1)(D) and (E).

      Subsection 161.001(b)(1)(E) provides that a parent’s rights can be terminated

when he has “engaged in conduct or knowingly placed the child with persons who

engaged in conduct when he has when he has which endangers the physical or

emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(E). “‘To

endanger’ means to expose a child to loss or injury or to jeopardize a child’s

emotional or physical health.” Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—

Houston [1st Dist.] 2010, pet. denied); see also In re K.P., 498 S.W.3d 157, 171

(Tex. App.—Houston [1st Dist.] 2016, pet. denied) (citing Tex. Dep’t Human Servs.

v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987), and In re M.C., 917 S.W.2d 268, 269

(Tex. 1996)).4

      To satisfy subsection (E), the parent’s conduct must cause the endangerment,

and the endangerment must be the result of a voluntary, deliberate, and conscious

course of conduct by the parent rather than a single act or omission. See In re K.P.,



4
      “[A] child is endangered when the environment creates a potential for danger which
      the parent is aware of but disregards.” Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex.
      App.—Houston [1st Dist.] 2010, pet. denied).
                                          22
498 S.W.3d at 171; Jordan, 325 S.W.3d at 723. The endangering conduct, however,

does need not be directed at the child, and it is not necessary that the child suffer any

injury because of the conduct. See In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012)

(citing Boyd, 727 S.W.2d at 533); see also In re J.O.A., 283 S.W.3d 336, 345 (Tex.

2009) (holding that endangering conduct is not limited to actions directed toward

child); Jordan, 325 S.W.3d at 723 (holding that danger to child may be established

even if conduct is not directed at child and child suffers no actual injury).

      Furthermore, the specific danger to the child’s well-being may be inferred

from parental misconduct standing alone and courts may consider parental conduct

that did not occur in the child’s presence, including conduct that occurred before the

child’s birth and before and after the child has been removed from the home. See

Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 616–17 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied); see also In re E.N.C., 384 S.W.3d at

804–05 (stating criminal offense occurring before child is born can be relevant factor

in establishing whether parent engaged in endangering course of conduct for

purposes of subsection E).

      Evidence of a parent’s criminal conduct, convictions, and imprisonment may

support a finding of endangerment under subsection 161.001(b)(1)(E) because such

conduct subjects a child to a life of uncertainty and instability. See In re S.R., 452

S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (stating


                                           23
parent’s conduct that subjects child to life of uncertainty and instability endangers

child’s physical and emotional well-being); see also In re A.A.M., 464 S.W.3d 421,

426–27 (Tex. App.—Houston [1st Dist.] 2015, no pet.). A parent’s use of illegal

drugs may also support termination under subsection 161.001(1)(E) because “it

exposes the child to the possibility that the parent may be impaired or imprisoned.”

Walker, 312 S.W.3d at 617; see also In re J.O.A., 283 S.W.3d at 345.

      Even if it transpires outside the child’s presence, a parent’s drug use can

constitute endangerment because it significantly harms the parenting relationship.

See J.O.A., 283 S.W.3d at 345; Boyd, 727 S.W.2d at 533; Walker, 312 S.W.3d at

617. In addition, “a parent’s decision to engage in illegal drug use during the

pendency of a termination suit, when the parent is at risk of losing a child, may

support a finding that the parent engaged in conduct that endangered the child’s

physical or emotional well-being.” In re K.C.F., No. 01–13–01078–CV, 2014 WL

2538624, at *10 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.).

      Deferring to the trial court’s credibility determinations, the record supports

the trial court’s findings that Father engaged in conduct that endangered the physical

or emotional well-being of Eddie and Amy for several reasons.

      Here, Father pleaded guilty to assaulting Mother in 2016 and 2017. Mother

was pregnant with Amy when the 2016 assault occurred and she was holding Amy

during the 2017 assault, which was witnessed by young Eddie and resulted in Amy


                                         24
hitting her head and being taken to the hospital. Although he denied it, Mother

claimed that Father had been physically assaulting her since Eddie was a baby and

that she had been injured several times during these assaults, including once when

Father broke her arm and second time when Father stabbed her. Although he denied

it, the record also contains some evidence that in October 2017 Father grabbed Eddie

by the hair and threw him onto a bed. Father’s history of domestic violence and

assaultive conduct towards Mother and the children is further evidence supporting

the endangerment finding. See In re J.O.A., 283 S.W.3d at 345 (holding that

endangering conduct is not limited to actions directed toward child); Jordan, 325

S.W.3d at 723 (holding that danger to child may be established even if conduct is

not directed at child and child suffers no actual injury); see also Walker, 312 S.W.3d

at 617 (“Evidence as to how a parent has treated another child or spouse is relevant

regarding whether a course of conduct under section [161.001(b)(1)(E)] has been

established.”).

      In addition to his history of domestic violence and assaultive conduct, Father

also has a lengthy history of illegal drug use. Father admitted that he smoked

marijuana on and off before and after Eddie and Amy were born and that he

continued to use marijuana until the case began in June 2017, even though he was

the children’s primary care giver. He was also aware that Mother smoked marijuana

when she was staying or living with him and the children. Father attempted to


                                         25
minimize the impact of his drug use on his children, however, by claiming that he

went outside to smoke marijuana and did not use drugs in front of Eddie. Father’s

continued drug use, even outside of Eddie’s presence, supports a finding of

endangerment under subsection (E) because a parent’s illegal drug use significantly

harms the parenting relationship and “exposes the child to the possibility that

[Father] may be impaired or imprisoned.” Walker, 312 S.W.3d at 617; see also

J.O.A., 283 S.W.3d at 345; Boyd, 727 S.W.2d at 533.

      Father also tested positive for several illegal drugs after the case began in June

2017, including three positive tests for cocaine in July 2017, August 2017, and April

2018, and a positive test for methamphetamine in July 2017. Notably, four of these

positive drug tests occurred after he completed the substance abuse treatment

program required by his family service plan on January 25, 2018, including the April

25, 2018 and June 2018 tests in which he tested positive for cocaine and marijuana,

respectively. This is further evidence of endangerment. See In re K.C.F., 2014 WL

2538624, at *10.

      Although Father denied using drugs after the case began in June 2017 and he

denied ever using cocaine and methamphetamine, the trial court could have

reasonably disregarded Father’s claims in the face of the drug results and expert

testimony to the contrary. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (stating

factfinder determines issues of credibility).


                                          26
      Finally, Father has a history of repeatedly engaging in criminal conduct, both

before and after the children were born. This conduct includes his 2016 and 2017

convictions for assaulting Mother, his ongoing use of illegal narcotics, and his 2103

conviction for threatening another woman with bodily injury. This history of

criminal conduct can support a finding of endangerment under section

161.001(b)(1)(E) because such criminal conduct subjects a child to a life of

uncertainty and instability. See In re S.R., 452 S.W.3d at 360; see also Walker, 312

S.W.3d at 617.

      Viewing the evidence in the light most favorable to the trial court’s finding,

we conclude that the trial court could have formed a firm belief or conviction that

Father engaged in conduct or knowingly placed Amy and Eddie with persons who

engaged in conduct that endangered the children’s physical or emotional well-being.

See In re J.O.A., 283 S.W.3d at 345; see generally TEX. FAM. CODE

§ 161.001(b)(1)(E). Further, in view of the entire record, we conclude that the

disputed evidence is not so significant as to prevent the trial court from forming a

firm belief or conviction that termination of Father engaged in conduct or knowingly

placed Amy and Eddie with persons who engaged in conduct which endangered the

children’s physical or emotional well-being. See In re J.O.A., 283 S.W.3d at 345;

see generally TEX. FAM. CODE § 161.001(b)(1)(E). Accordingly, we hold that legally




                                         27
and factually sufficient evidence supports the trial court’s finding that Father

committed the predicate act set forth under subsection (E).

      We overrule Father’s first issue with respect to the legal and factual

sufficiency of the evidence supporting the trial court’s finding that Father committed

the predicate act set forth under subsection (E).

      Having found that the evidence is both legally and factually sufficient to

support the predicate finding of endangerment under subsection (E), we need not

address the Father’s challenges to the sufficiency of the evidence supporting the trial

court’s findings under subsections (D) and (O). See In re A.V., 113 S.W.3d at 362.

C.    Best Interest

      In his third issue, Father argues that legally and factually insufficient evidence

supports the trial court’s finding that termination of his parental rights is in Eddie’s

and Amy’s best interest.

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

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

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

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

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

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

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


                                          28
best-interest determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas

2007, no pet.).

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

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

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

and future emotional and physical danger to the child; the parental abilities of the

persons seeking custody; the programs available to assist those persons seeking

custody in promoting the best interest of the child; the plans for the child by the

individuals or agency seeking custody; the stability of the home or proposed

placement; acts or omissions of the parent which may indicate the existing

parent-child relationship is not appropriate; and any excuse for the parent’s acts or

omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). This list of

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

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

see also In re D.R.A., 374 S.W.3d at 533.

      The Texas Family Code also sets out similar factors to be considered in

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

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

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

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


                                           29
close supervision; the willingness and ability of the child’s family to effect positive

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

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

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

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

FAM. CODE § 263.307(b); see also In re R.R., 209 S.W.3d at 116.

      Courts may consider circumstantial evidence, subjective factors, and the

totality of the evidence as well as the direct evidence when conducting the best

interest analysis. See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio

2013, pet. denied). Evidence supporting termination under one of the predicate

grounds listed in section 161.001(b)(1) can also be considered in support of a finding

that termination is in the best interest of the child. See In re C.H., 89 S.W.3d at 28

(holding same evidence may be probative of both section 161.001(b)(1) grounds and

best interest). A parent’s past conduct is probative of his future conduct when

evaluating the child’s best interest. See In re O.N.H., 401 S.W.3d at 684. A factfinder

may also infer that past conduct endangering the well-being of a child may recur in

the future if the child is returned to the parent when assessing the best interest of the

child. In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.)

(citing In re B.K.D., 131 S.W.3d 10, 17 (Tex. App.—Fort Worth 2004, pet. denied)).




                                           30
      In this case, Eddie and Amy are currently placed in a safe, stable, and loving

home with foster parents who they have bonded with and who want to adopt them.

By all accounts, the parents are meeting Eddie’s and Amy’s current emotional,

financial, and physical needs, and the Department believes they will be able to do so

in the future. See generally In re O.N.H., 401 S.W.3d at 684 (stating past conduct is

probative of parent’s future conduct when evaluating child’s best interest). There is

nothing in the record indicating otherwise. Unlike Father, the children’s foster

parents do not have a criminal history, use illegal narcotics, or exhibit difficulty

managing their emotions. The foster parents also appear to have a stable marriage

and good parenting skills, and the Department does not foresee any issue preventing

the foster parents from adopting Eddie and Amy if Mother’s and Father’s parental

rights are terminated.

      The evidence supporting the trial court’s finding that Father engaged in a

course of conduct endangering to Eddie and Amy under subsection E, including

Father’s history of assaulting Mother, including at least once in Eddie’s presence,

and his assault of Eddie, also weighs in favor of termination of Father’s parental

rights with respect to both children. See Edwards v. Tex. Dep’t of Protective &

Regulatory Servs., 946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ); see

also In re A.M., 495 S.W.3d at 581 (relying in part on “history of assaultive conduct




                                         31
between the mother and father” in affirming decision that termination of father’s

rights was in child’s best interest).

      Father’s use of illegal narcotics after the children were removed from his

custody also demonstrates that he is “not willing and able to provide the child with

a safe environment—a primary consideration in determining the child’s best

interest.” In re A.C., 394 S.W.3d at 642; see also In re E.R.W., 528 S.W.3d 251, 266

(Tex. App.—Houston [14th Dist.] 2017, no pet.) (“A parent’s drug use supports a

finding that termination is in the best interest of the child.”). There is also evidence

that Father allowed the young children to be around Mother when she was using

drugs and that he was aware Mother was smoking marijuana and breastfeeding Amy.

Although Father claims that he stopped using illegal narcotics when the children

came into care, the trial court could have reasonably disregarded Father’s claims in

the face of the drug test evidence, expert testimony to the contrary, and Father’s

admission that he used marijuana as late six months prior to trial. See In re J.P.B.,

180 S.W.3d at 573 (stating factfinder weighs issues of credibility). Furthermore, the

trial court could reasonably infer from Father’s admissions that he used illegal drugs

when he was caring for the children and his use of drugs with Mother while they

were living together with the children will occur in the future. See In re D.M., 452

S.W.3d at 471 (stating factfinder may infer that parent’s past conduct endangering




                                          32
child’s well-being may recur if child is returned to parent when assessing whether

termination of parent’s parental rights is in child’s best interest).

      The record also demonstrates that Father has made progress since the children

were removed from his care. Father is presently employed, he has renewed the lease

on his apartment, which is now furnished, and he bought a vehicle. Although this is

some evidence that Father may be able to meet at least some of the children’s present

and future physical and emotional needs, such evidence does not outweigh the

evidence to the contrary, including Father’s inability to remain sober during the

pendency of the case, including after he completed substance abuse treatment, or his

anger issues, both of which are concerns for the Department and Child Advocates.

      Viewing the evidence in the light most favorable to the trial court’s finding,

we conclude that the trial court could have formed a firm belief or conviction that

termination of Father’s parental rights is in Amy’s and Eddie’s best interest. See In

re J.O.A., 283 S.W.3d at 345. Further, in view of the entire record, we conclude that

the disputed evidence is not so significant as to prevent the trial court from forming

a firm belief or conviction that termination of Father’s parental rights is in Amy’s

and Eddie’s best interest. See id. Accordingly, we hold that legally and factually

sufficient evidence supports the trial court’s best interest finding.

      We overrule Father’s third issue.




                                           33
                                    Conclusion

      We affirm the trial court’s order terminating Father’s parental rights to Eddie

and Amy.



                                              Russell Lloyd
                                              Justice


Panel consists of Justices Lloyd, Kelly, and Hightower.




                                         34
