Affirmed and Memorandum Opinion filed January 16, 2020.




                                          In The

                      Fourteenth Court of Appeals

                                 NO. 14-19-00603-CV

                   IN THE INTEREST OF R.R., JR. A CHILD


                     On Appeal from the 387th District Court
                             Fort Bend County, Texas
                      Trial Court Cause No. 18-DCV-253527

                            MEMORANDUM OPINION

       Appellant R.R. (“Father”) appeals the trial court’s final decree terminating
parental rights to his son, R.R., Jr. (“Ryan”)1 and appointing the Texas Department
of Family and Protective Services (the Department) as sole managing conservator
of Ryan. The trial court terminated Father’s parental rights on predicate grounds
of endangerment, failure to complete a family service plan, and conduct that
resulted in conviction and imprisonment for not less than two years and an inability

       1
        We use pseudonyms to refer to appellant, the children, and other family members. See
Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
to care for the child. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), and (Q).
The trial court further found that the termination of Father’s rights was in the
child’s best interest. Tex. Fam. Code § 161.001(b)(2). The Father challenges the
legal and factual sufficiency of the evidence to support the trial court’s findings on
all predicate grounds and that termination is in the child’s best interest. Because
we conclude the evidence is legally and factually sufficient to support the trial
court’s judgment, we affirm.

                               I.   BACKGROUND
A.    The Department’s Pretrial Removal Affidavit

      In July 2018, when Ryan was twenty-two months old, the Department
received a referral alleging Ryan’s mother (“Mother”) was neglectful in
supervising Ryan. Specifically, the referral stated that Mother and another woman,
Father’s cousin, were selling drugs, including crack, cocaine, hydrocodone, and
marijuana out of their home. The two women were also alleged to have been
conducting a prostitution business out of their home. These activities were
allegedly occurring in the presence of Ryan and the cousin’s children. It was
further alleged that Mother hit Ryan with her open hand and a belt, causing him
injuries. The report also stated Ryan was left outside unsupervised and that there
was no food in the home.

      Upon receipt of this referral, a Department investigator met with Mother.
Mother said she had three other children of whom she lost custody. Mother
explained that she was charged with child endangerment in 2013 and that she was
diagnosed with bipolar disorder, depression, post-traumatic stress disorder,
psychosis, and insomnia. Mother said Father was incarcerated. Mother agreed to
submit to drug tests. The drug test returned positive for marijuana and
phencyclidine (PCP). In her affidavit, the caseworker averred that the Department

                                          2
could not locate any family members or contacts who were willing to care for
Ryan—this was later disputed at trial by Father’s cousin and his girlfriend. The
trial court appointed the Department temporary sole managing conservator of
Ryan. The Department placed Ryan with his current foster family shortly after he
was removed from Mother’s home.

B.    Trial Testimony

      Trial commenced eleven months after the Department removed Ryan from
Mother’s care.

      1.     Father

      Father testified that he had been incarcerated for over two years at the time
of trial. Ryan was eight months old when Father went into prison. Father further
testified that he was incarcerated as the result of pleading guilty to two separate
charges. He entered a plea of guilty to a family violence assault charge against
Mother. This charge stemmed from an incident alleged to have occurred in April
2016, at which time Mother was pregnant with Ryan. Father admitted he pled
guilty to assaulting Mother but denied the assault happened. Father claimed he
entered the guilty plea to the charge of assaulting Mother in order to reduce his
sentence on his guilty plea to evading arrest, which was allegedly committed after
Ryan was born.

      When asked how many times he had been charged with domestic assault,
Father responded that he could not remember, but said he had been to prison for
domestic assault three times. Father confirmed that he had prior domestic assault
charges from: (1) 2004, against his sister, (2) 2006, two counts against an ex-
girlfriend, and (3) 2009, against another ex-girlfriend.



                                          3
      Father also confirmed that he had been charged with evading arrest, drug
possession, burglary, criminal mischief, and assault causing bodily injury. Father
testified that he has been in and out of jail for the last twenty-one years and
estimated he had been incarcerated for “a little over fourteen years” cumulatively.

      Father testified that he was “hurt” when he found out that Ryan had been
taken into Department custody. According to Father, he has been doing everything
he can from prison to comply with the trial court’s orders to get his son back and
was not notified until March or April regarding the possibility of family member
placement for Ryan. Father explained that if he is not paroled, then he has twenty
months left on his sentence.

      Father testified that Mother was sober while they were living together.
Father confirmed that he was aware that Mother had a history with the Department,
and that her three other children had been removed from her custody. Father knew
Mother suffered from numerous mental health conditions, including bipolar
disorder and depression, as well as seizure disorder, and testified that while they
were together Mother did not consistently take the medication she was prescribed.
Father testified that he was shocked to learn Mother tested positive for PCP,
although he did know she had a history of using drugs. Father confirmed he has
been unable to send his son financial support or gifts because of his incarceration.
However, he sends cards, drawings, and letters to Ryan.

      Father took classes, obtained certifications, and completed parenting classes,
and at time of trial was waiting to hear his scores on his testing to obtain his GED.
He was asked, but refused, to sign an affidavit of relinquishment, and said he
would never sign one. He testified he sent forms to CPS for placement of Ryan
with his cousin, “Adam.”



                                         4
      Father further testified that he wants Ryan to be placed with Father’s cousin
Adam and his girlfriend of 14 years, until he is released from prison, which he
testified could be as early as 2020 if he is granted parole. According to Father, he
has already been denied parole twice. Father explained that after twenty-one years
of crime, he is ready to make a change. He said that he will return to his previous
job at a home repair company when he is released from prison and that he has
family members with whom he and Ryan can stay.

      2.     Erika Kinney

      Erika Kinney, an investigative supervisor for the Department, testified that
she received a priority one referral alleging neglectful supervision of Ryan in July
2018 by Mother. Specifically, the referral stated Mother was selling drugs and
prostituting out of the home where Ryan lived. Additionally, there were allegations
of physical abuse. When Kinney met with Mother, she learned that Mother had
three other children who had been removed from her care. Mother also had served
previously a 180-day sentence for child endangerment. Kinney testified that
Mother agreed to take a drug test after the investigation began. The test returned
positive for PCP and marijuana. Kinney confirmed Father was incarcerated when
this investigation began.

      3.     Debra Lee

      Debra Lee, a conservatorship worker for the Department, testified that one
of the first things she did when she received this case was to send Father a
parenting packet explaining that his son was in the Department’s custody and what
would be required of Father. Lee testified that Father did not notify her of any
potential placements for Ryan until December 2018. At that point, Father requested
that his cousin, Adam, and Adam’s girlfriend, “Amy,” be considered as potential
placements for Ryan. Lee testified that she called Adam seven times and never got
                                         5
a response. Four months later, in April 2019, Adam called Lee and told her that he
was busy and would call her later. Lee said she never heard back from Adam. The
first time Lee heard from Adam was at a hearing in this case two-and-half weeks
before trial. Lee testified that she spoke with Adam, who said he was busy and did
not get her messages.

        After that hearing, Lee conducted a preliminary home study on Adam and
Amy for potential placement. The Department’s program director denied Adam
and Amy’s home study based on a prior CPS history of Amy which occurred in
2009. According to Debra Lee, Amy was charged with abandonment of her child,
was incarcerated for three days, and the charges were dismissed. Lee testified that
her supervisor denied the home study because of the 2009 Department
investigation of Amy but admitted there had been no other referrals since that time.

        The preliminary home study indicated that the couple had five other children
in their home. The couple planned for Ryan to share a bedroom with one of his
cousins. The family has an adequate number of bedrooms for all the children. The
report indicated the couple was willing to become a permanent placement for
Ryan.

        Lee further testified that when Ryan came into the Department’s care, he
was having temper tantrums, night terrors, and suffering from an intense fear of the
dark. Additionally, Ryan had a severe lice infestation. Since Ryan has been in
foster care, his temper tantrums have decreased, along with his fear of the dark and
his night terrors. Ryan’s lice problem was remedied after a three-week course of
treatment. Ryan has been attending daycare and going to a “Little Gym” class that
he enjoys. He has been learning how to count and knows his colors. Ryan appears
bonded with his foster parents and loves his family pets. Ryan enjoys helping to
feed the dogs. The foster parents have been helping Ryan with his emotional issues

                                          6
and have been researching to prepare themselves for any emotional issues he may
suffer in the future as a result of the trauma he suffered in Mother’s care. Lee
testified that the foster parents are ready and willing to permanently adopt Ryan if
given the opportunity.

      Lee testified that she was concerned about Father’s extensive history of
violence. Lee confirmed she does not believe Father would be available for Ryan.

      4.    Charlotte Murphy

      Charlotte Murphy, the court-appointed special advocate, testified that Ryan
is thriving in his current placement. Murphy further testified that Ryan’s
communication has greatly improved, which also helps to minimize his temper
tantrums. According to Murphy, Ryan’s lice infestation was so severe he had to be
taken to a special clinic for lice removal. Murphy further testified that Ryan is
bonded, comfortable, and happy in his current foster placement.

      Murphy opined that Ryan should stay in his current placement and that
Mother’s and Father’s parental rights should be terminated. She testified that
Father may possibly be incarcerated for another two years. Murphy testified she
believed it would be detrimental to move Ryan from his foster family. Murphy
explained that this would be disruptive because Ryan had already been left once by
Mother and Father. Murphy testified that she was concerned about Father’s history
of domestic violence.

      5.    Foster Mother

      Ryan’s Foster Mother testified that when he came into her care he was
diagnosed with “super lice” and they had to seek a three-week course of treatment
at a specialized lice clinic. Ryan also suffered from extreme night terrors, which
was remedied by the foster parents moving his bed into their bedroom, so he was

                                         7
not left alone at night. The Foster Mother explained that she would rock him and
sing to him to soothe him to sleep during that first month in order to get him to fall
asleep in her bedroom. Ryan also suffered from temper tantrums that Foster
Mother described as out of the ordinary for a two-year-old. Ryan would scream
profanities and hit whatever was around him.

      After three months of living with the foster family, Foster Mother moved
Ryan into his own room where he is now able to sleep through the night. Ryan
started potty-training recently and is doing “fantastic.” Ryan goes to daycare three
days a week and is enrolled in parent-child interactive gym classes with Foster
Mother. Foster Mother takes Ryan to a neighborhood park at least five days a week
where he socializes with other children. Foster Mother intends to enroll Ryan in
play-therapy as soon as he turns three years old. Ryan is the only child currently
living in the home with Foster Mother and Foster Father.

      Foster Mother testified that Ryan occasionally asks about Mother and Father
and that she encourages him to share his feelings. Foster Mother gave Ryan a
picture of Mother and Ryan that Mother sent to her. Foster Mother testified that
Ryan becomes sad when asking about Mother and Father.

      Foster Mother testified that she has concerns about allowing Amy and Adam
to care for Ryan because she does not believe they will protect him from Mother
and Father. Foster Mother further testified that she intends to leave the lines of
communication open with Mother and Father even if their parental rights are
terminated. She would like Ryan to have a relationship with them while
maintaining his safety. Foster Mother said she is also willing to create a
relationship with Amy and Adam so they can get to know Ryan.




                                          8
      6.     Adam

      Father’s cousin, Adam, testified that he and Amy have been together for
fourteen years and have five children together. Adam opined that Ryan needs to be
placed with his family because he needs to be with his blood relatives. Adam
explained that he would have no problem protecting Ryan from Mother because he
believes she was the “toxic one” in the relationship with Father. Adam disputed
Debra Lee’s testimony that she called him seven times and left voice messages
regarding Ryan’s situation. Adam explained that Lee called him one time and did
not communicate the gravity of the situation. Adam further testified that Amy
attempted to get custody of Ryan from the beginning of the case when he was
being removed from his Mother’s care. According to Adam, Amy was present
when the Department was removing Ryan from Mother’s care and requested to
take him home. According to Adam, Amy was immediately denied custody of
Ryan because Department investigators discovered she had a prior investigation.
The couple did not follow up with the Department because they believed Mother
was completing her services and doing whatever she could to get Ryan back.

      Adam opined that Ryan might be emotionally and mentally affected “either
way” whether he stays with the foster family or is placed with Adam and Amy, he
will also suffer if he is denied the opportunity to be reunited with his blood
relatives. Adam testified that he will do whatever it takes to make Ryan thrive in
his home, including letting him sleep in a room with him and Amy, signing him up
for soccer, and placing him in daycare. Adam said Ryan will share a room and
sleep in his own bunk bed, or sleep with his youngest son. Adam takes all his
children to their extracurricular activities, doctor’s appointments, and prepares all
their meals. He testified that he disciplines his own children by taking away WiFi



                                         9
or phones, or by limiting other activities. Adam stated he would not allow Ryan to
go anywhere without him or Amy and would be aware of their surroundings.

        Adam told the court that if Father’s parental rights are terminated and he is
given custody of Ryan, he will not allow Father to take Ryan or have unsupervised
visits with him. Adam further stated that if he is not given custody of Ryan, he
would still like to see him and develop a relationship between his children and
Ryan.

        7.    Amy

        Amy, Adam’s long-time girlfriend, testified that her children have spent
time with Ryan and love him. Pictures of Ryan with his cousins and Father taken
by Amy were entered into evidence. Ryan was shown being hugged by his cousins
and sitting with Father at a restaurant.

        Amy explained that on the day the Department removed Ryan from
Mother’s home, Mother called Amy crying and telling her that Ryan was being
taken away. Amy immediately went over to Mother’s house to see if she could
qualify to take Ryan. The Department refused her because of the 2009
investigation.

        Amy testified that she will protect Ryan from Mother and Father and apply
for a restraining order if necessary. Amy testified that Ryan’s safety comes first.

C.      Trial Court’s Ruling

        The trial court announced it was terminating Mother’s and Father’s parental
rights. On July 17, 2019, Father’s rights were terminated under Family Code
sections 161.001(b)(1)(D), (E), (O), and (Q). The trial court named the Department
as Ryan’s permanent managing conservator. Father appealed the trial court’s
ruling. Mother has not appealed.

                                           10
                                     II.    ISSUES

         In issues one through four, Father contends the evidence is legally and
factually insufficient to support the termination of his parental rights under Tex.
Fam. Code § 161.001(b)(1)(D), (E), (O), and (Q). In his fifth issue, Father asserts
that the evidence is legally and factually insufficient to support that termination is
in the child’s best interest. Tex. Fam. Code § 161.001(b)(2).

                                   III.    ANALYSIS

A.       Standards of Review

         Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no
pet.).    Although parental rights are of constitutional magnitude, they are not
absolute. In re A.C., 560 S.W.3d 624, 629 (Tex. 2018); In re C.H., 89 S.W.3d 17,
26 (Tex. 2002) (“Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional
and physical interests of the child not be sacrificed merely to preserve that right.”).

         Due to the severity and permanency of terminating the parental relationship,
Texas requires clear and convincing evidence to support such an order. See Tex.
Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). “Clear
and convincing evidence” means “the measure or degree of proof that will produce
in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.” Tex. Fam. Code § 101.007; In re J.F.C., 96
S.W.3d at 264. This heightened burden of proof results in a “correspondingly
searching standard of appellate review.” In re A.C., 560 S.W.3d at 630; see In re
C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).


                                           11
      In reviewing legal sufficiency of the evidence in a parental termination case,
we must consider all evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or
conviction that its finding was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex.
2009). We assume that the fact finder resolved disputed facts in favor of its
finding if a reasonable fact finder could do so, and we disregard all evidence that a
reasonable fact finder could have disbelieved. Id.; In re G.M.G., 444 S.W.3d 46,
52 (Tex. App.—Houston [14th Dist.] 2014, no pet.). However, this does not mean
that we must disregard all evidence that does not support the finding. In re D.R.A.,
374 S.W.3d at 531. Because of the heightened standard, we also must be mindful
of any undisputed evidence contrary to the finding and consider that evidence in
our analysis. Id.

      In reviewing the factual sufficiency of the evidence under the clear-and-
convincing standard, we consider and weigh disputed evidence contrary to the
finding against all the evidence favoring the finding. In re A.C., 560 S.W.3d at
631; see In re J.O.A., 283 S.W.3d at 345. “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, then the evidence is factually insufficient.” In re J.O.A.,
283 S.W.3d at 345. We give due deference to the fact finder’s findings and we
cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006).

B.    Predicate Grounds

      In a proceeding to terminate the parent-child relationship under Texas
Family Code section 161.001, the petitioner must establish by clear and convincing
evidence one or more acts or omissions enumerated under subsection (1) of section

                                         12
161.001(b) and that termination is in the best interest of the child under subsection
(2). Tex. Fam. Code § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

       In issues one through four, Father argues the evidence was legally and
factually insufficient to support termination under all predicate grounds found by
the trial court: sections 161.001(b)(1)(D), (E), (O), and (Q). If a trial court finds
multiple predicate violations, we will affirm on any one violation that is
established by clear and convincing evidence. See In re T.N.F., 205 S.W.3d 625,
629 (Tex. App.—Waco 2006, pet. denied).                   Further, due to the significant
collateral    consequences       of    terminating      parental    rights    under     section
161.001(b)(1)(D) or (E),2 “[a]llowing section 161.001(b)(1)(D) or (E) findings to
go unreviewed on appeal when the parent has presented the issue to the court thus
violates the parent’s due process and due course of law rights.” In re N.G., 577
S.W.3d 230, 237 (Tex. 2019). Thus, when as here, a parent challenges predicate
termination grounds under either subsection 161.001(b)(1)(D) or (E), or both of
those subsections, we must address and detail our analysis under one of those
subsections. See id. We will address the trial court’s finding of endangerment
under subsection E.

       Termination of parental rights is warranted if the fact finder finds by clear
and convincing evidence, in addition to the best-interest finding, that the parent
has, “engaged in conduct or knowingly placed the child with persons who engaged
in conduct which endangers the physical or emotional well-being of the child.”


       2
          Section 161.001(b)(1)(M) provides that parental rights may be terminated if clear and
convincing evidence supports that the parent “had his or her parent-child relationship terminated
with respect to another child based on a finding that the parent’s conduct was in violation of
Paragraph (D) or (E) or substantially equivalent provisions of the law of another state.” Id.
§ 161.001(b)(1)(M). Thus, when parental rights have been terminated for endangerment under
either section 161.001(b)(1)(D) or (E), that ground becomes a basis to terminate that parent’s
rights to other children.

                                               13
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. See In re
M.C., 917 S.W.2d 268, 269 (Tex. 1996).         A finding of endangerment under
subsection E requires evidence that the endangerment was the result of the parent’s
conduct, including acts, omissions, or failures to act. In re S.R., 452 S.W.3d 351,
361 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Termination under
subsection E must be based on more than a single act or omission; the statute
requires a voluntary, deliberate, and conscious course of conduct by the parent. Id.
A court properly may consider actions and inactions occurring both before and
after a child’s birth to establish a course of conduct. In re A.L.H., 515 S.W.3d 60,
91 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).

      While endangerment often involves physical endangerment, the statute does
not require that conduct be directed at a child or that the child actually suffer
injury; rather, the specific danger to the child’s well-being may be inferred from
the parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.—Fort
Worth 2004, pet. denied). A parent’s conduct that subjects a child to a life of
uncertainty and instability endangers the child’s physical and emotional well-
being. In re F.E.N., 542 S.W.3d 752, 764 (Tex. App.—Houston [14th Dist.] 2018,
no pet.); In re A.L.H., 515 S.W.3d at 92. Among the types of actions or omissions
constituting evidence meeting this standard are criminal activity, convictions, and
incarceration. See In re V.V., 349 S.W.3d 548, 554 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied).        Evidence of criminal conduct, convictions,
imprisonment, and their effects on a parent’s life and ability to parent, may
establish an endangering course of conduct. In re S.M., 389 S.W.3d 483, 492 (Tex.
App.—El Paso 2012, no pet.). Routinely subjecting children to the probability that


                                        14
they will be left alone because their parent is in jail endangers children’s physical
and emotional well-being. See Walker v. Tex. Dep’t of Family and Protective
Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
Imprisonment alone is not an endangering course of conduct but is a fact properly
considered on the endangerment issue. Boyd, 727 S.W.2d at 533-34.

      Also, criminal drug abuse and knowledge that the child’s other parent
abused drugs is an action or omission that is evidence of endangering conduct.
“Drug abuse and its effect on the ability to parent can present an endangering
course of conduct.” In re J.J.W., No. 14-18-00985-CV, 2019 WL 1827591 *6
(Tex. App.—Houston [14th Dist. April 25, 2019, pet. denied) (mem. op.).

      Domestic violence and a propensity for violence are likewise evidence of
endangerment.    “Domestic violence, want of self-control, and propensity for
violence may be considered as evidence of endangerment.” In re J.I.T.P., 99
S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.); accord S.R.,
452 S.W.3d at 361. Violence does not have to be directed toward the child or
result in a final conviction—“Texas courts routinely consider evidence of parent-
on-parent physical abuse in termination cases without specifically requiring
evidence that the conduct resulted in a criminal conviction.” In re V.V., 349
S.W.3d at 556. As this court has noted, parents’ criminal conduct that exposes
them to the possibility of incarceration can negatively impact a child’s living
environment and emotional well-being. In re S.M.L, 171 S.W.3d 472, 479 (Tex.
App.—Houston [14th Dist.] 2005, no pet.).

      In his brief, Father argues the evidence is insufficient to support the
endangerment finding because he was the non-offending parent and he had no
reason to believe Mother would resort back to drugs after he left for prison. In
response, the Department argues that the evidence is sufficient because Father had

                                         15
a long history of domestic violence, repeated incarcerations, drug offenses, and left
Ryan with Mother whom he knew to have a history with the Department, a history
of substance abuse, and untreated mental illness.

      The clear and convincing evidence of Father’s repeated criminal conduct,
convictions, imprisonment, and their collective effect on his ability to parent a
child establishes an endangering course of conduct. Father has subjected Ryan to a
probability of being left alone because he is in jail, endangering Ryan’s physical
and emotional well-being. In addition to Father’s history of incarceration for
family violence against family members and Mother, Father has been charged with
evading arrest, drug possession, burglary, criminal mischief, and assault causing
bodily injury. By his own admission, Father has been in and out of jails and prisons
for the last twenty-one years. Father estimated he has cumulatively spent fourteen
of the last twenty-one years incarcerated. When parents are incarcerated, they are
absent from the child’s daily life and are unable to provide support, and when
parents, like Father, repeatedly commit criminal acts that subject them to the
possibility of incarceration, that can negatively impact a child’s living environment
and emotional well-being. In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). Father’s history of incarceration creates a risk
that Ryan will continue to suffer from abandonment in Father’s care, which could
negatively impact his emotional well-being.

      Additionally, the clear and convincing evidence of Father’s multiple
convictions for family violence establishes endangerment. The evidence presented
at trial showed that Father has been charged with family violence assault on several
occasions, including three counts of assault against ex-girlfriends and a charge of
assault against Mother stemming from an incident while Mother was pregnant with
Ryan. Such abusive or violent conduct can produce a home environment that

                                         16
endangers a child’s well-being, and such propensities are properly considered as
evidence of endangerment. In re J.I.T.P., 99 S.W.3d at 845. Despite pleading
guilty to assaulting Mother, Father denied the assault occurred; however, it was
within the purview of the trial court to determine the credibility of the witnesses,
including Father. See In re K.A.S., 131 S.W.3d 215, 229 (Tex. App.—Fort Worth
2004, pet. denied). Father has a record of violence against his domestic partners,
including Mother. Further, to the extent the assault of Mother occurred while she
was pregnant with Ryan, this also may constitute evidence of endangerment to
Ryan in utero.    In sum, Father’s pattern of conduct provides this court with
sufficiently clear and convincing evidence of endangering behavior.

      While in prison, Father participated substantially to comply with the family
service plan, worked toward completion of a GED, and appeared and testified at
trial. Father even arranged for Ryan to live with his cousin Adam and Adam’s
girlfriend Amy. We also note the efforts Father has made to communicate with his
son by sending cards and letters to Ryan, as well as the efforts by Adam and Amy
to obtain custody of Ryan. In terminating Father’s parental rights, however, the
trial court reasonably noted Father’s inability or unwillingness to safeguard Ryan’s
physical and emotional well-being. Father’s incarceration left Ryan with Mother,
whom Father acknowledged had lost her other three children, did not take
medication for her conditions, and had a history of drug abuse. Father’s lack of
effort to ensure the well-being of his child—coupled with the evidence of criminal
conduct and domestic violence—is sufficient to support a termination finding
based on endangerment.      See In re Z.N.M., No. 14-17-00650-CV, 2018 WL
358480 at *6 (Tex. App.—Houston [14th Dist.] Jan. 11, 2018, no pet.) (mem. op.).

      Considered in the light most favorable to the trial court’s finding, the
evidence is legally sufficient to support the trial court’s determination that

                                        17
termination of Father’s parental rights was justified under Family Code section
161.001(b)(1)(E). Further, in view of the entire record, we conclude the disputed
evidence is not so significant as to prevent the trial court from forming a firm
belief     or   conviction    that    termination   was    warranted    under    section
161.001(b)(1)(E). Accordingly, we conclude the evidence is legally and factually
sufficient to support the subsection E finding. We overrule Father’s second issue.

         Having concluded the evidence is legally and factually sufficient to support
the trial court’s finding under subsection E, we need not review the sufficiency of
the evidence to support the subsections D, O, or Q findings. See In re A.V., 113
S.W.3d 355, 362 (Tex. 2003). We overrule Father’s first, third, and fourth issues.

C.       Best Interest of the Child

         We turn to Father’s fifth issue, his legal and factual sufficiency challenges to
the trial court’s best-interest findings.

         The best-interest inquiry is child-centered and focuses on the child’s well-
being, safety, and development. In re A.C., 560 S.W.3d at 631. The trier of fact
may consider several factors to determine the child’s best interest, including: (1)
the desires of the child; (2) the present and future physical and emotional needs of
the child; (3) the present and future emotional and physical danger to the child; (4)
the parental abilities of the persons seeking custody; (5) the programs available to
assist those persons seeking custody in promoting the best interest of the child; (6)
the plans for the child by the individuals or agency seeking custody; (7) the
stability of the home or proposed placement; (8) acts or omissions of the parent
that may indicate the existing parent-child relationship is not appropriate; and (9)
any excuse for the parents’ acts or omissions. Holley v. Adams, 544 S.W.2d 367,
371-72 (Tex. 1976); In re E.R.W., 528 S.W.3d 251, 266 (Tex. App.—Houston
[14th Dist.] 2017, no pet.); see also Tex. Fam. Code § 263.307(b) (listing factors to
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consider in evaluating parents’ willingness and ability to provide the child with a
safe environment).

      Courts apply a strong presumption that the best interest of the child is served
by keeping the child with the child’s natural parents, and it is the Department’s
burden to rebut that presumption. In re D.R.A., 374 S.W.3d at 531. Prompt and
permanent placement in a safe environment also is presumed to be in the child’s
best interest. Tex. Fam. Code § 263.307(a). A finding in support of “best interest”
does not require proof of any unique set of factors, nor does it limit proof to any
specific factors. See Holley, 544 S.W.2d at 371-72. Father argues the Department
failed to pursue a “less-restrictive option” as opposed to parental-termination
because a kinship placement was available. In reviewing the Holley factors, we
review whether the evidence in the record supports parental-termination over
placement with Amy and Adam as being in Ryan’s best interest.

      1.     The desires of the child

      As to the first factor, neither party presented testimony regarding Ryan’s
desires. Ryan was just shy of three years old at the time of trial, and, therefore, too
young to communicate his desires. When a child is too young to express his
desires, the fact finder may consider that the child has bonded with the foster
family, is receiving good care in the current placement, and has spent minimal time
with a parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.]
2014, no pet.). At the time of trial, Ryan had been living with his foster family for
eleven months, from the time he was twenty-two months old. Ryan has never lived
with Amy and Adam. Father was incarcerated when Ryan was only eight months
old. The only evidence that Ryan bonded with Father was the testimony of Foster
Mother, who stated that Ryan becomes sad when asking about Mother and Father,
and Father remained absent from Ryan for most of the past two years. See In re

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L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)
(When children are too young to express their desires, the fact finder may consider
that the children have bonded with the foster family, are well cared for by the
foster family, and have spent minimal time with a parent). By all accounts, Ryan
is thriving in the care of his foster parents. This factor supports the trial court’s
finding on best-interest.

      2.     The present and future emotional and physical needs and present and
             future danger to the child
      With respect to factors two and three, the evidence supports the trial court’s
finding that Father engaged in conduct or knowingly placed Ryan with persons
who engaged in conduct that endangered his physical or emotional well-being.
Father admitted that he has been in and out of prison for the past twenty-one years,
estimating he had spent fourteen years in prison since turning eighteen.          He
admitted to a variety of charges, including drugs, domestic violence, evading
arrest, and burglary.       Father pled guilty to assaulting Mother when she was
pregnant with Ryan.         Moreover, evidence supporting termination under the
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 27. Furthermore, a fact-finder may infer that past conduct endangering
the well-being of a child may recur in the future if the child is returned to the
parent. In re A.J.E.M.-B., No.14-14-00424-CV, 2014 WL 5795484 at *16 (Tex.
App.—Houston [14th Dist.] Nov. 6, 2014, no pet.) (mem. op.). Despite Father’s
pronouncements that he is changing his life for the better, he lacks any history of
law-abiding behavior that could have given the trial court assurance he will change
his ways. These two factors support the trial court’s finding of termination.




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      3.      Parenting Ability of Father and Programs Available to Assist Father

      As to factors four and five, Father has completed some parenting classes
while incarcerated; however, this does not negate Father’s history of irresponsible
choices. It is undisputed that Father currently resides in prison and has been
denied parole twice. Father has been in and out of prison for twenty-one years.
His criminal conduct includes violent criminal activity, including assaulting
Mother while pregnant with Ryan. He also left Ryan with Mother’s care when he
knew she had untreated mental health issues and a history with the Department.
The trial court could have concluded that Father lacked insight as to Ryan’s
physical and emotional needs, demonstrated poor judgment in the past, and lacks
the ability and parenting skills to provide Ryan with adequate care. See D.O., 851
S.W.2d at 358. These two factors support the trial court’s finding of termination.

      4.      Plans for the Child by the Individual or by the Agency Seeking
              Custody and the Stability of the Home or Proposed Placement
      Factors six and seven address the placement of the child. Texas courts
recognize as a paramount consideration in the best-interest determination the
children’s need for a “stable, permanent home.” See In re K.C., 219 S.W.3d 924,
927 (Tex. App.—Dallas 2007, no pet.). Therefore, evidence about the present and
future placement of the child is relevant to the best-interest determination. See In
re C.H., 89 S.W.3d 17, 28 (Tex. 2002). The evidence presented at trial shows Ryan
has   a    healthy   routine   and   has   overcome significant    challenges   thro
ugh the support of his foster family. The record demonstrates the home is stable
and loving. If Ryan is placed with Amy and Adam prior to Father being released
from prison, he will undergo an immediate disruption in his current routine and
again when Father is released. Father testified about numerous relatives that would
allow he and Ryan to “stay” with them but offered no permanent solutions. Father
is unable to demonstrate he can provide the stability Ryan needs, when his history
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is replete with incarceration after incarceration. These two factors weigh in favor
of the trial court’s finding on best-interest.

         5.    Acts or Omissions of Father which may Indicate that the Existing
               Parent-Child Relationship is Not a Proper One
         As to factor eight, the evidence is undisputed that Father has a history of
criminal conduct, including drugs, burglary, and several instances of domestic
violence. He admittedly has been in and out of jail and was incarcerated at the
time of trial. Father’s incarceration has resulted in Ryan being left in Mother’s
care, whom he knew to have untreated mental health issues and a prior history with
the Department.      This factor weighs in favor of the trial court’s decision of
termination.

         6.    Excuses for Father’s Acts or Omissions
         For the ninth factor, Father does not offer an excuse. As such, this factor
weighs in favor of termination.

         Viewing the evidence in the light most favorable to the judgment for our
legal-sufficiency analysis and all of the evidence equally for our factual-
sufficiency analysis, we conclude that a reasonable fact finder could have formed a
firm belief or conviction that termination of Father’s parental rights was in Ryan’s
best interest. See Tex. Fam. Code § 161.001(b)(2). We overrule Father’s fifth
issue.

                                  IV.    CONCLUSION

         The evidence is legally and factually sufficient to support the predicate
termination finding under subsection E. And, based on the evidence presented, the
trial court reasonably could have formed a firm belief or conviction that
terminating Father’s parental rights was in Ryan’s best interest. We affirm the
judgment of the trial court.

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      We affirm the decree terminating Father’s parental rights and naming the
Department managing conservator.




                                       /s/    Margaret “Meg” Poissant
                                              Justice



Panel consists of Justices Wise, Jewell, and Poissant.




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