                                  Fourth Court of Appeals
                                          San Antonio, Texas
                                     MEMORANDUM OPINION
                                              No. 04-17-00408-CV

                   IN THE INTEREST OF M.C.L., K.R.L., and M.C.L., Children

                      From the 225th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2016PA01348
                              Honorable Richard Garcia, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: November 29, 2017

AFFIRMED

           This is an accelerated appeal from the trial court’s order terminating appellant father’s

(“Father”) parental rights to his three children. 1 On appeal, Father contends the evidence is legally

and factually insufficient to support the trial court’s finding that termination was in the children’s

best interests. We affirm the trial court’s order of termination.

                                                  BACKGROUND

           The Texas Department of Family and Protective Services (“the Department”) became

involved with the family based on allegations of drug abuse, domestic violence, neglectful



1
  Two of the three children involved in this appeal share the same initials. Thus, to refer to the children individually
when necessary and to protect their identities, we shall refer to the children by the following pseudonyms and/or their
ages at the time trial began: (1) John — a nine-year-old boy; (2) James — a six-year-old boy; and (3) Joseph — a
four-year-old boy. See TEX. R. APP. P. 9.8(2) (stating that in parental-termination appeals, minors must be identified
by alias unless court orders otherwise).
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supervision, and physical neglect. The Department placed John with his maternal grandparents

and the two younger boys with their maternal aunt and uncle. The Department subsequently filed

a petition to terminate Mother and Father’s parental rights. 2 During the case, the Department

created a service plan for Father, which required, among other things, that he: (1) engage in and

complete services relating to domestic violence, substance abuse, and parenting; (2) obtain a

psychiatric and psychological assessment; and (3) maintain stable employment and housing. The

trial court ordered Father to comply with each requirement set out in the plan. The court held the

statutorily required status and permanency hearings, and ultimately, the matter moved to a final

hearing, during which the Department sought to terminate Father’s parental rights.

          At the hearing, the trial court heard testimony from Jennifer DeLong, the only Department

caseworker involved in the case, and C.B., the children’s maternal aunt. At the conclusion of the

hearing, the trial court terminated Father’s rights, finding he constructively abandoned the children

and failed to comply with the provisions of a court order that specifically established the actions

necessary for him to obtain the return of his children. 3                        See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(N), (O) (West Supp. 2016). The trial court further found termination of Father’s

parental rights would be in the children’s best interests. See id. § 161.001(b)(2). Accordingly, the

trial court rendered an order terminating Father’s parental rights. Thereafter, he perfected this

appeal.


2
  Prior to the final hearing, the children’s mother filed an affidavit of relinquishment. Her parental rights were
terminated based on the affidavit. Mother did not file a notice of appeal challenging the termination. Accordingly,
she is not a party to this appeal.
3
  In his brief, Father contends the trial court found only a failure to comply with the service plan. We disagree. On
the record, the trial court specifically stated it was terminating Father’s parental rights based on two grounds —
constructive abandonment and failure to complete the service plan. In the written order of termination, the trial court
lined through those grounds upon which termination was not granted using a large “X.” When the trial court place
the “X” through the paragraph above the constructive abandonment ground, one “leg” of the “X” carried down to the
constructive abandonment paragraph. However, the trial court used a “squiggly line” to indicate the leg of the “X”
was not intended to apply to the constructive abandonment paragraph. This comports with the trial court statements
on the record. Accordingly, we hold the grounds for termination included both constructive abandonment and failure
to complete the service plan.

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                                            ANALYSIS

       On appeal, Father does not challenge the evidence with regard to the trial court’s findings

under section 161.001(b)(1) of the Texas Family Code (“the Code”). See id. § 161.001(b)(1)(N),

(O). Rather, he merely challenges the legal and factual sufficiency of the evidence in support of

the trial court’s finding that termination was in the best interests of the children. See id.

§ 161.001(b)(2).

                                       Standard of Review

       A parent’s right to his child may be terminated by a court only if the court finds by clear

and convincing evidence that the parent committed an act prohibited by section 161.001(b)(1) of

the Code and termination is in the best interest of his child. Id. § 161.001(b). “Clear and

convincing evidence” is defined as “proof that will produce in the mind of the trier of fact a firm

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

Courts require this heightened standard of review because termination of a parent’s rights to his

child results in permanent and severe changes for both the parent and child, thus, implicating due

process concerns. In re A.B., 437 S.W.3d 498, 502 (Tex. 2015). When reviewing the legal and

factual sufficiency of the evidence, we apply the well-established standards of review. See TEX.

FAM. CODE ANN. §§ 101.007, 161.206(a); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal

sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency). In sum, an

appellate court must determine whether the evidence is such that the trier of fact could reasonably

form a firm belief or conviction that determination was in the child’s best interest. In re J.F.C.,

96 S.W.3d 256, 263 (Tex. 2002).

       In conducting a sufficiency review, we may not weigh a witness’s credibility because it

depends on appearance and demeanor, and these are within the domain of the trier of fact. J.P.B.,



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180 S.W.3d at 573. Even when such issues are found in the appellate record, we must defer to the

fact finder’s reasonable resolutions. Id.

                                Best Interests — Substantive Law

        In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). We recognize there is 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). However, promptly and permanently placing a child in a safe environment is also presumed

to be in the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a). Thus, to determine whether

a child’s parent is willing and able to provide the child with a safe environment, we also consider

the factors set forth in section 263.307(b) of the Code. Id.

        Additionally, evidence that proves one or more statutory grounds for termination may be

probative to prove termination is in the child’s best interest. In re C.H., 89 S.W.3d 17, 28 (Tex.

2012) (holding same evidence may be probative of both section 161.001(1) grounds and best

interest, but such evidence does not relieve State of burden to prove best interest). In conducting

a best interest analysis, a court may consider, in addition to direct evidence, circumstantial

evidence, subjective factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620

(Tex. App.—San Antonio 2013, pet. denied). Finally, a trier of fact may measure a parent’s future

conduct by his past conduct in determining whether termination of parental rights is in the child’s

best interest. Id.

                                            The Evidence

        As noted above, the Department presented two witnesses at the final hearing — the

Department caseworker and the children’s maternal aunt.            Through these witnesses, the

Department sought to establish, in addition to the grounds for termination, that termination would

be in the best interests of the children. In analyzing the evidence within the Holley framework, we
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note that evidence of each Holley factor is not required before a court may find that termination is

in a child’s best interest. C.H., 89 S.W.3d at 27. In other words, the absence of evidence as to

some of the Holley factors does not preclude a fact finder from reasonably forming a strong

conviction or belief that termination is in a child’s best interest. Id. Moreover, in conducting our

review of a trial court’s best interest determination, we focus on whether termination is in the best

interest of the child — not the best interest of the parent. In re D.M., 452 S.W.3d 462, 468–69

(Tex. App.—San Antonio 2014, no pet.).

   1. Desires of the Children

       At the time of trial, the children were nine, six, and four years old. See TEX. FAM. CODE

ANN. § 263.307(b)(1) (child’s age and physical and mental vulnerabilities); Holley, 544 S.W.2d at

371–72. Although none of the children testified at trial, Ms. DeLong stated the oldest child, John,

“didn’t seem to care one way or the other” regarding his placement. See TEX. FAM. CODE ANN.

§ 263.307(b)(1); Holley, 544 S.W.2d at 371–72. As for the two younger boys, she stated they did

not “really seem to understand everything that’s going on.” See TEX. FAM. CODE ANN. §

263.307(b)(1); Holley, 544 S.W.2d at 371–72. When a child is unable to express his desires, a fact

finder may consider that he has bonded with the foster family, is well cared for by them, and has

spent minimal time with the parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th

Dist.] 2014, no pet.) (citing In re J.M., 156 S.W.3d 696, 706 (Tex. App.—Dallas 2005, no pet.);

In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)).

       The evidence shows the children are bonded to the families where they have been placed

— John with his maternal grandparents and the two younger boys with their maternal aunt and

uncle. See J.D., 436 S.W.3d at 118. Ms. DeLong testified that not only are the children bonded

with their placement families, but the families are bonded to them as well. The families are stable,

have proven they can take care of the children’s needs — emotional and physical, and are
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committed to caring for their needs now and in the future. See id. Moreover, the families ensure

that John, James, and Joseph spend time together by engaging in social activities together.

       Although Father was initially granted weekly visitation, Ms. DeLong testified he “would

no show to most of them[,]” and when he did show up, he was late. See id. According to Ms.

DeLong, the children were initially happy to see Father during visits, but by the middle or end of

the visit “their excitement kind of wore off and they were ready for the visit to end.” Subsequently,

due to a physical threat by Father to Mother, Father’s visitation was reduced to once a month.

According to Ms. DeLong, by the time of trial, Father had not seen the children for three or four

months. See id.

   2. Emotional & Physical Needs/Emotional & Physical Danger/Parenting Abilities

       As to the children’s needs, Ms. DeLong testified John has been diagnosed with ADHD for

which he takes medication. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at

371–72. James, who was six at the time of trial, was held back from starting school because it was

determined he was not yet ready for kindergarten, which could have been a result of his premature

birth. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371–72. Ms. DeLong

stated Joseph, the youngest child, had no special emotional or physical needs. See TEX. FAM.

CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371–72. However, as to all three children,

Ms. DeLong testified their health and behaviors have improved since they were placed outside the

home. She stated that during her initial visits, the children “couldn’t sit still,” “you couldn’t have

a conversation with them[,]” and “[t]hey would be bouncing off — wall to wall.” It was a struggle

to get them to shower, engage in a routine, or go to bed. However, after spending time in their

placement homes, the children “were able to calm down” and engage in a routine. Ms. DeLong

concluded Father is unable to meet the physical and emotional needs of the children. See TEX.

FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371–72.
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       With regard to the emotional and physical danger to the children — now and in the future,

there is evidence Father suffers untreated mental instability, engages in drug use, and has

committed domestic violence. See TEX. FAM. CODE ANN. § 263.307(b)(7) (history of abusive or

assaultive conduct by child’s family or other who have access to child’s home); id. § 263.307(b)(8)

(history of substance abuse by child’s family or others who have access to child’s home); id.

§ 263.307(b)(12) (whether child’s family demonstrates adequate parenting skills); Holley, 544

S.W.2d at 371–72. According to Ms. DeLong, Mother said her relationship with Father was

abusive. See TEX. FAM. CODE ANN. § 263.307(b)(7); Holley, 544 S.W.2d at 371–72; see also In

re G.M.G., 444 S.W.3d 46, 59 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding that

evidence of father’s domestic violence supports finding of endangerment to physical or emotional

well-being of child).    A parent’s tendency towards violence is relevant to a best interest

determination. See D.N. v. Texas Dep’t of Family & Protective Servs., No. 03–15–00658–CV,

2016 WL 1407808, at *2 (Tex. App.—Austin Apr. 8, 2016, no pet.) (mem. op.) (“[D]omestic

violence may constitute endangerment, even if the violence is not directed at the child.”); In re

A.A., No. 06–14–00060–CV, 2014 WL 5421027, at *3 (Tex. App.—Texarkana Oct. 23, 2014, no

pet.) (mem. op.) (“Domestic violence, want of self-control, and the propensity for violence may

be considered as evidence of endangerment.”). The evidence shows Father threatened Mother

with violence during a visitation. At a particular visitation, Father became “upset” with Mother.

He told Mother “he wanted to put a bullet in her head.” See TEX. FAM. CODE ANN. § 263.307(b)(7);

Holley, 544 S.W.2d at 371–72; see also G.M.G., 444 S.W.3d at 59. When Ms. DeLong confronted

Father about the incident, he admitted making the threat. According to Ms. DeLong, Father stated

“he loses his temper and he loses his cool and he says things that he sometimes regrets.” As a

result of this incident, Mother and Father were no longer permitted joint visitation, and Father’s

visitation was reduced from weekly to monthly.
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       Father admitted to Ms. DeLong that he was using methamphetamines. See TEX. FAM.

CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371–72. Ms. DeLong stated that based on this

admission, his drug use was the Department’s biggest concern. Yet, Father failed to address his

drug use in accordance with the service plan. See TEX. FAM. CODE ANN. § 263.307(b)(8); see also

id. § 263.307(b)(10) (willingness and ability of child’s family to seek out, accept, and complete

counseling services and to cooperate with and facilitate appropriate agency’s close supervision);

id. § 263.307(b)(11) (willingness and ability of child’s family to effect positive environmental and

personal changes with reasonable time period); Holley, 544 S.W.2d at 371–72.

       Father also admitted to suffering from PTSD, depression, and possibly bipolar disorder.

See TEX. FAM. CODE ANN. § 263.307(b)(6) (results of psychiatric, psychological, or developmental

evaluations of child’s parents); Holley, 544 S.W.2d at 371–72. “A parent’s mental state may be

considered in determining whether a child is endangered if that mental state allows the parent to

engage in conduct that jeopardizes the physical or emotional well-being of the child.” In re R.W.,

129 S.W.3d 732, 739 (Tex. App.—Fort Worth, 2004, pet. denied). Nevertheless, much like his

drug issues, Father failed to address his mental health issues. See TEX. FAM. CODE ANN.

§ 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371–72. Ms. DeLong testified she

requested on multiple occasions that he go to the Center for Healthcare Services to deal with his

mental health issues. In response, Father told her he was seeking treatment through the VA. Ms.

DeLong asked Father to provide proof of VA treatment, but he never did. See TEX. FAM. CODE

ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371–72.

       The record also shows Father was unable to meet his children’s needs because he was

unable to provide stable housing or proof of stable employment. See TEX. FAM. CODE ANN.

§ 263.307(b)(11); Holley, 544 S.W.2d at 371–72. “Lack of stability, including a stable home,

supports a finding that the parent is unable to provide for a child’s emotional and physical needs.”
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In Interest of A.J.-A., No. 14-16-00070-CV, 2016 WL 1660858, at *5 (Tex. App.—Houston [14th

Dist.] Apr. 26, 2016, no pet.) (mem. op.); see G.M.G., 444 S.W.3d at 59–60 (same); Doyle v. Tex.

Dep’t of Protective & Regulatory Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso 2000, pet.

denied) (holding that parent’s failure to provide stable home and provide for child’s needs

contributes to finding that termination of parental rights is in the child’s best interest). Ms. DeLong

testified that Father claimed to be living with an aunt and uncle. However, when she requested

that he confirm he was still residing with them, he failed to respond. See TEX. FAM. CODE ANN.

§ 263.307(b)(11); Holley, 544 S.W.2d at 371–72; see also A.J.-A., 2016 WL 1660858, at *5.

Father’s employment history lacked stability. See TEX. FAM. CODE ANN. § 263.307(b)(11);

Holley, 544 S.W.2d at 371–72. Ms. DeLong stated he never provided proof of employment, but

he would call and say he was working at a fast food restaurant, then a mechanic’s shop, or

somewhere else. See TEX. FAM. CODE ANN. § 263.307(b)(11); Holley, 544 S.W.2d at 371–72.

Ms. DeLong testified, “it was always something different.”

       The foregoing evidence is also relevant to Father’s parenting abilities. See TEX. FAM. CODE

ANN. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12) (whether child’s family

demonstrates adequate parenting skills); Holley, 544 S.W.2d at 371–72. As set out above, Father

has a history of: (1) domestic violence — going so far as to threaten Mother following a visitation,

(2) drug use, and (3) mental health issues. See TEX. FAM. CODE ANN. § 263.307(b)(7); id. §

263.307(b)(8); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72. Father also failed to provide

proof of stable housing or employment. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. §

263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72. The evidence shows Father

failed to comply with his service plan, which required, among other things, that he complete

services relating to domestic violence, parenting, psychological and psychiatric assessments, and

provide proof of stable housing and employment. See TEX. FAM. CODE ANN. § 263.307(b)(10);
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id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72. On this basis, the trial

court could have determined Father lacks the abilities needed to parent his young children. See

Holley, 544 S.W.2d at 371–72.

   3. Available Programs to Assist Individual to Promote Best Interest

       As noted above, the Department created a service plan for Father, requiring him to

complete services relating to drug use, domestic violence, parenting, psychological and psychiatric

issues, and to secure and maintain stable housing and employment. See TEX. FAM. CODE ANN.

§ 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371–72. Ms. DeLong testified the

most important aspect of the service plan concerned services relating to Father’s drug use.

According to Ms. DeLong, Father failed to complete any of the services set out in the plan. See

TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371–72. Ms.

DeLong testified she was the only caseworker involved throughout the entirety of the case and her

contact information never changed. Yet, Father failed to maintain contact with her. See TEX. FAM.

CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371–72. She stated she

“reached out to him,” leaving messages and asking him to provide proof of the services he

completed.    However, Father made only occasional calls relating to his ever-changing

employment. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544

S.W.2d at 371–72.

       When asked — given his mental health issues — whether extra time to implement changes

to his behavior might help Father gain the return of his children, Ms. DeLong stated, “[n]o,”

explaining that Father had already been given twelve months to make changes and despite her

requests, he failed to make any changes. Thus, the evidence shows that despite the availability of

services and programs provided by the Department, Father chose not to engage. See TEX. FAM.

CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371–72.
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    4. Plans for Children by Those Seeking Custody/Stability of Home or Proposed Placement

        The record is devoid of any evidence regarding Father’s plans for the care of his children

should he retain custody. See Holley, 544 S.W.2d at 371–72. At the time of the hearing, Father’s

housing and employment status were unknown. See TEX. FAM. CODE ANN. § 263.307(b)(10); id.

§ 263.307(b)(11); Holley, 544 S.W.2d at 371–72. Ms. DeLong also testified Father failed to

provide any support for his children during the pendency of the case.

        As mentioned above, the evidence shows the children’s needs are currently being met by

their placement families — maternal grandparents and a maternal aunt and uncle. See Holley, 544

S.W.2d at 371–72. The children have been with the placement families for more than a year.

Moreover, the two youngest children previously lived for a time with their aunt and uncle before

this latest placement. The siblings see each other on a regular basis. The families have engaged

in activities so that the brothers see each other three or four times a month.

        According to Ms. DeLong, the children are bonded with their placement families and the

family members are bonded to them. She testified the current placements are “stable,” the

placement families have proven they can take care of the children’s emotional and physical needs,

and importantly, both families are ready and willing to adopt the children.              See id.   The

Department’s long-term plan for the children is to go forward with adoption by the placement

families, with the maternal grandparents adopting John, and the maternal aunt and uncle adopting

both James and Joseph. See id.

        The boys’ maternal aunt, C.B., testified the two younger boys have been with her family

for more than a year. See id. She stated that in the beginning, they had some “tumultuous times,”

emotionally and behaviorally, especially after visitations, but now things have settled down. See

id. She said James and Joseph are progressing in school, and as a family, they engage in numerous

activities, including trips to the waterpark, state parks, and the library. The family also participates
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in church activities. On Sundays after church, the families eat lunch together to allow the brothers

to see each other. In addition, she confirmed that the families engage in activities so that the

brothers see each other at least three or four times a month.

         C.B. stated each child has his own bedroom, and they are bonded with her family, including

her biological children. C.B. testified she treats James and Joseph as if they are her own. She and

her husband plan to adopt the two younger boys in the event Father’s rights are terminated. See

id.

      5. Acts or Omissions Suggesting Parent-Child Relationship is Not Proper/Excuses

         With regard to the final Holley factors, the trial court heard evidence of the following acts

and omissions by Father, establishing the existing parent-child relationship is improper: (1)

Father’s inability to provide stable housing or maintain consistent employment; (2) Father’s

history of domestic violence, including threatening to kill Mother after a visitation; (3) Father’s

untreated drug use; and (4) Father’s unaddressed mental health issues. As to evidence of any

excuse for his conduct and failure to take steps to address his issues, the only evidence presented

was Father’s mental health issues, which he refused to address pursuant to the service plan.

                                             Summation

         After reviewing the evidence and considering the Holley factors and the statutory factors

in section 263.307(b) of the Code, we conclude the evidence was such that the trial court could

have reasonably determined termination of Father’s parental rights was in the best interests of the

children. See J.P.B., 180 S.W.3d at 573; H.R.M., 209 S.W.3d at 108. The evidence shows Father

has issues relating to domestic violence, drug use, and mental health, which he refused to address.

Father’s refusal to address these issues — as well as his failure to secure and maintain housing and

employment — subjects his children to a life of emotional and physical instability. The evidence

also shows that in the year leading up to the final hearing, Father failed to complete any of the
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requirements of his service plan. Moreover, Father has not challenged the trial court’s findings

that he constructively abandoned his children and failed to comply with the provisions of a court

order that specifically established the actions necessary for him to obtain their return. See TEX.

FAM. CODE ANN. § 161.001(b)(1)(N), (O). The grounds for termination are probative on the issue

of best interest. See C.H., 89 S.W.3d at 28; B.R., 456 S.W.3d at 615; see also TEX. FAM. CODE

ANN. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72.

        Accordingly, after considering all the evidence in the light most favorable to the best

interest finding, we conclude the trial court reasonably could have formed a firm belief or

conviction that termination of Father’s parental rights was in the children’s best interests. See

J.P.B., 180 S.W.3d at 573; H.R.M., 209 S.W.3d at 108. Given that the trial court was permitted to

consider circumstantial evidence, subjective factors, and the totality of the evidence, in addition to

the direct evidence presented, we hold the trial court was within its discretion in finding

termination of Father’s parental rights would be in the best interests of the children. See J.P.B.,

180 S.W.3d at 573; H.R.M., 209 S.W.3d at 108; E.D., 419 S.W.3d at 620.

                                             CONCLUSION

        Based on the foregoing, we hold the evidence is legally and factually sufficient to have

permitted the trial court, in its discretion, to find that termination of Father’s parental rights was in

the best interests of John, James, and Joseph. Accordingly, we overrule Father’s sufficiency

complaint and affirm the trial court’s order of termination.


                                                     Marialyn Barnard, Justice




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