`
`Affirmed and Memorandum Opinion filed March 28, 2019.
`
`
`
`
`
`
`
`In The
`
`Fourteenth Court of Appeals
`
`NO. 14-18-00881-CV
`
`IN THE INTEREST OF M.M. AND C.M., CHILDREN
`
`On Appeal from the 300th District Court
`Brazoria County, Texas
`Trial Court Cause No. 90237-F
`
`MEMORANDUM OPINION
`
`
`The issues in this case involve whether the district court’s findings to
`terminate parents’ parental rights are supported by legally and factually sufficient
`evidence. This accelerated appeal arises from a final order in which, after a hearing
`without a jury, the district court terminated the parental rights of D.W. (Mother) and
`C.M.S. (Father) with respect to their children, M.M. (Mary) and C.J. (Charles),1 and
`appointed the Department of Family and Protective Services to be the children’s sole
`
`
`1 To protect the minors’ identities, we have not used the actual names of the children,
`parents, or other family members. See Tex. R. App. P. 9.8.
`
`
`
`

`

`
`
`managing conservator. See Tex. Fam. Code Ann. § 109.002(a-1).
`
`Both parents appealed. In six issues, Mother challenges the legal and factual
`sufficiency of the evidence to support the district court’s findings on the predicate
`ground of endangerment, that termination is in the children’s best interest, and
`appointment of the Department as the children’s sole managing conservator. Mother
`further argues she received ineffective assistance of counsel, the district court abused
`its discretion in denying her motion for continuance, and the district court
`improperly ordered new evidence in violation of Texas Rule of Evidence 605. Father
`challenges the legal and factual sufficiency of the evidence to support the district
`court’s endangerment finding and the finding that termination is in the children’s
`best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (2). We affirm.
`
`I. BACKGROUND
`
`A. Pretrial proceedings
`
`1. Pretrial removal affidavit
`
`Early in 2017, more than one year before the final hearing commenced,2 the
`Department received a referral stating that shortly after midnight law enforcement
`officers responded to a report by a Walmart employee that Mary and Charles had
`been left unattended in a car parked in the Walmart parking lot. While law
`enforcement officers were present, Mother appeared and identified herself as
`“Lawanda.” Law enforcement officers later learned that Lawanda was Mother’s
`neighbor. Mother and the children were transported to the police station where
`Mother dropped a small packet of methamphetamine on the floor. Mary tried to pick
`it up saying, “That is mommy’s, and I need to save it.” Mother admitted “being very
`
`2 The Family Code uses the terms “final trial” and “final hearing on the merits.” E.g., Tex.
`Fam. Code Ann. §§ 161.2011(a), .202. In this opinion we use either “final hearing on the merits”
`or “final hearing.”
`
`
`
`2
`
`

`

`
`
`messed up on methamphetamine” and using Lawanda’s identification card to
`impersonate her neighbor. Mother was arrested for possession of methamphetamine
`and reported there were no relatives available to care for the children. It was reported
`that “Father is hiding out in the area and may not be reachable.”
`
`Mary, who was five years old at the time, told an investigator that she and her
`brother stayed in the truck while Mother shopped in Walmart. Mary said she had to
`urinate in the truck because there was no one there to take her in the store. Mary also
`reported that Father had hurt Mother. Mary reported that “when my mom and dad
`play with crystals I can’t be around them.”
`
`Law enforcement officers reported that Mother had been shoplifting in
`Walmart and was taken to the police station due to outstanding warrants. A
`dispatcher saw Mary pick up the bag of methamphetamine and told Mary to throw
`it away. Mary told the dispatcher the bag was not trash but belonged to Mother.
`Father also had outstanding arrest warrants.
`
`Mother reported that she suffers from bipolar disorder and depression. Mother
`left her abusive husband who is a methamphetamine dealer. Mother possessed the
`methamphetamine because she took it from her abusive husband.
`
`2.
`
`Criminal History
`
`Mother had two traffic offenses, which were referred to the arresting agencies
`for disposition. Mother also had a charge for theft, which was listed as “disposition
`held.”
`
`Father had a prior conviction for criminal trespass. Father received deferred
`adjudication probation for three drug offenses and had his probation revoked on one
`drug offense. Father had other charges of criminal trespass, burglary of a building,
`failure to identify, and possession of a controlled substance, which were either
`
`
`
`3
`
`

`

`
`
`deferred or referred to the arresting agencies.
`
`3.
`
`Department History
`
`Approximately one year before the referral from the Walmart incident, the
`Department received a referral of physical abuse, physical neglect, and neglectful
`supervision of Mary, Charles, and S.M. (Susie).3 The report noted that Mother was
`seen hitting Mary while Mary was playing outside. The home had no running water,
`severe sewage backup, and was infested with roaches. The children were sleeping
`on the living room floor. It was noted that no food was in the home and the children
`had been seen outside asking neighbors for food. It was further reported that
`strangers were “constantly coming and going due to the drugs being used in the
`home.” Mother and Father were reported to be known users of heroin and
`methamphetamine. Mary was seen with burns on her shoulder that appeared to be
`approximately one week old. It was noted that the burns were dirty and appeared to
`be infected.
`
`The investigation revealed that both Mother and Father “actively hide the
`family from CPS.” The case was closed because the family fled the state and the
`Department could not locate them.
`
`Four years earlier, the Department received a referral of neglectful supervision
`of Susie and Mary. The report noted that the children lived with Mother, Father, and
`a paternal uncle. The parents provided negative drug tests and the children were
`eventually returned to them. Other than the negative drug tests, the report does not
`list the reason the children were returned.
`
`4.
`
`Removal
`
`The children were removed on an emergency basis and family service plans
`
`3 Susie is Mother’s oldest child who no longer lives with Mother.
`
`
`
`4
`
`

`

`
`
`were developed. The district court ordered the parents to provide support to the
`children and ordered compliance with the service plans. At the time of the removal
`Mother was arrested and incarcerated in the Brazoria County Jail.
`
`B.
`
`Final Hearing
`
`The case was initially called to a final hearing in June 2018. The district court
`announced that the parties agreed to start on that date, and recess at a later date in
`July. The witnesses were sworn, and the caseworker began her testimony with a
`statement that she works for the Department. The district court secured the parties’
`agreement that they would return in July to continue the hearing.
`
`When the final hearing resumed in July, Mother was the only witness to testify
`the first day of the hearing. Mother testified that she was arrested for
`methamphetamine possession the day her children were removed. On the day of her
`arrest Mother did not know Father’s location. The district court admitted, without
`objection, a certified copy of the judgment of conviction for possession of
`methamphetamine, which reflected that Mother pleaded guilty to the offense in
`exchange for a sentence of 150 days in the Brazoria County Jail.
`
`Mother voluntarily admitted to the Santa Maria substance abuse treatment
`center. Mother completed a four-month program and was successfully discharged.
`Mother completed a psychological evaluation and parenting classes. Mother was
`unable to maintain stable employment or maintain a stable home. Mother had been
`homeless since being released from jail. Mother’s family lived in Kentucky; if the
`children were returned to her she would take them to Kentucky.
`
`The day the children were removed, Mother had visible bruises and a black
`eye. Mother claimed she went to the police station because Mary reported that the
`bruises were a result of physical abuse by Father. Mother went with the police
`
`
`
`5
`
`

`

`
`
`officers to document her bruises and meet with representatives from a women’s
`shelter. Mother was arrested for possession of methamphetamine and spent the next
`147 days in the Brazoria County Jail.
`
`Mother testified that while the case was pending she was never asked to
`submit to a drug test. Mother admitted using methamphetamine after leaving
`treatment at Santa Maria. At the end of Mother’s testimony, the district court ordered
`a drug test and recessed until August.
`
`When the final hearing resumed, DNA tests were admitted into evidence that
`confirmed Father is the biological father of both children. Father’s attorney
`requested a continuance because Father was sent to prison the Friday before the final
`hearing was to resume on Monday. At the time the final hearing was recessed, Father
`was in Brazoria County custody and was not expected to be transferred before the
`hearing resumed. Due to the late notice, counsel was unable to request a bench
`warrant for the August hearing date. The district court recessed until September.
`
`When the final hearing resumed in September, Mother was not present. The
`hearing resumed with Father’s testimony. At the time the hearing resumed, Father
`was serving a four-year sentence for possession of a controlled substance. At the
`time the children were removed, Father was also incarcerated. During the pendency
`of this case the only time Father had not been incarcerated was four months in 2018.
`When Father was released in 2018, he tried to call the Department caseworker.
`Father admitted a previous conviction for possession of a controlled substance in
`2002. While in jail Father participated in parenting, anger-management, and life-
`skills classes.
`
`Chevelle Bossier, the conservatorship caseworker, was designated to transport
`Mother to the drug-testing facility following the August hearing. Bossier called
`Mother and did not receive a return phone call. Bossier looked for Mother at two
`
`
`
`6
`
`

`

`
`
`motels where she was supposed to be staying and a residence in Clute where she had
`been staying. Bossier was unable to locate Mother. Mother did not communicate
`with Bossier after that hearing.
`
`In addition to failing to complete parenting classes, individual therapy, or
`maintain employment, Mother failed to appear for random drug tests. Mother did
`not appear when the court requested a drug test, nor did she appear the previous
`month when the Department requested a drug test. The previous month Bossier
`drove mother to the drug-testing facility, but Mother refused to submit to the test.
`
`Bossier testified that the children were in foster care and were in a safer
`environment. They were doing well in school and were loved unconditionally by
`their foster parents. Bossier testified that the foster parents have been more
`consistent in meeting the children’s physical, medical, and educational needs than
`the parents were. Mother visited the children in March 2018 and again in August
`2018, but did not visit them any time in between those two visits.
`
`The foster father testified that he had been the children’s foster parent for
`almost twenty months. When the children came into his care, Charles was two and
`Mary was four. When the children arrived in his care, they both had a “head full of
`lice and front teeth . . . on the top rotten to the gum line.” Mary was very talkative,
`and Charles was just learning to talk. Charles’s only words at the time were described
`as “vulgar.” When Mary first came into care, she would not go to sleep unless the
`foster parents were in the room and watched her go to sleep. Charles would not be
`separated from Mary for any length of time.
`
`Almost two years later, at the time of the final hearing, Charles was almost
`four years old and was “very happy and playful.” Charles loved to read and play
`with friends from a church group. Some of Charles’s favorite activities were going
`to the library and the park and riding his bike. Charles attended preschool two days
`
`
`
`7
`
`

`

`
`
`a week at a local church.
`
`Mary, who was six at the time of the final hearing, was also doing well. The
`foster father testified that “art is her passion.” Mary paints, draws, and enjoys
`“hanging out with her friends.” Mary thrived on being able to go to school and was
`becoming more independent, making her own lunch and helping around the house.
`Teachers have given feedback that Mary is a sweet girl.
`
`The foster father testified that he and his wife would like to adopt the children
`and believe they could provide a stable and loving environment. Their goal is for the
`children to be in a loving and caring environment even if it is not in their home.
`
`The children’s maternal grandmother (Grandmother) testified by video.
`Grandmother asked that the children be allowed to live with her in Kentucky. A
`children’s services agency in Kentucky conducted a home study on Grandmother
`and denied placement with Grandmother. Susie, Mother’s oldest child, was living
`with Grandmother at the time of the final hearing. Grandmother admitted a previous
`driving under the influence conviction. The caseworker testified earlier that the
`conviction was the reason Grandmother was rejected as a possible placement. At the
`time of the final hearing, Mother lived in the same town in Kentucky with her uncle.
`
`At the conclusion of testimony, the district court found clear and convincing
`evidence that both parents had endangered the children pursuant to section
`161.001(b)(1) of the Family Code. The district court further found that termination
`of the parents’ rights was in the best interest of the children and that the Department
`should be appointed temporary managing conservator.
`
`II. ANALYSIS
`
`In the parents’ first issues, Mother and Father challenge the legal and factual
`sufficiency of the evidence to support the district court’s finding on the predicate
`
`
`
`8
`
`

`

`
`
`ground of endangerment. In Mother’s fifth issue and Father’s second issue the
`parents challenge the legal and factual sufficiency of the evidence to support the
`district court’s finding that termination is in the best interest of the children.
`
`A. Standards of review
`
`Involuntary termination of parental rights is a serious matter that implicates
`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
`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,
`the law in Texas requires clear and convincing evidence to support such an order.
`See Tex. Fam. Code Ann. § 161.001(b); 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 Ann. § 101.007; In re
`J.F.C., 96 S.W.3d at 264.
`
`The heightened burden of proof in termination cases results in a heightened
`standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th
`Dist.] 2008, no pet.) (op. on reh’g). We review the legal sufficiency of the evidence
`by considering all evidence in the light most favorable to the finding to determine
`whether a reasonable factfinder 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 must assume
`that the factfinder resolved disputed facts in favor of its finding if a reasonable
`
`
`
`9
`
`

`

`
`
`factfinder could do so, and we disregard all evidence that a reasonable factfinder
`could have disbelieved or found incredible. Id.; In re D.R.A., 374 S.W.3d at 531.
`However, this does not compel us to 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.
`
`the
`the evidence under
`factual sufficiency of
`the
`reviewing
`In
`clear-and-convincing burden, we consider and weigh all of the evidence, including
`disputed or conflicting evidence. In re J.O.A., 283 S.W.3d at 345. “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. (internal quotation marks omitted). We give due deference to the factfinder’s
`findings and we cannot substitute our own judgment for that of the factfinder. In re
`H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).
`
`In a proceeding to terminate the parent-child relationship brought under
`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
`161.001(b) and that termination is in the best interest of the child under subsection
`2. Tex. Fam. Code Ann. § 161.001(b); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
`
`B. Predicate termination grounds
`
`The district court made predicate termination findings that Mother had
`committed acts establishing the grounds set out in subsections D and E, and that
`Father committed acts establishing the ground set out in subsection E of section
`161.001(b)(1), which provides for termination of parental rights if the fact finder
`finds by clear and convincing evidence that the parent has:
`
`
`
`10
`
`

`

`
`
`(D) knowingly placed or knowingly allowed the child to remain in
`conditions or surroundings which endanger the physical or emotional
`well-being of the child;
`. . . [or]
`(E) 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[.]
`Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).
`
`Only one predicate finding under section 161.001(b)(1) is necessary to
`support a final order of termination when the factfinder also finds that termination is
`in the children’s best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We
`will address the district court’s findings of endangerment under subsection 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) (per curiam); In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th
`Dist.] 2014, pet. denied). 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 at 360. 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 trial
`court properly may consider actions and inactions occurring both before and after a
`child’s birth and before and after removal to establish a course of conduct. Id. at
`360–61. “While endangerment often involves physical endangerment, the statute
`does not require that conduct be directed at a child or that the child actually suffers
`injury; rather, the specific danger to the child’s well-being may be inferred from
`parents’ misconduct alone.” Id. at 360 (citing Tex. Dep’t of Human Servs. v. Boyd,
`727 S.W.2d 531, 533 (Tex. 1987)). A parent’s conduct that subjects a child to a life
`of uncertainty and instability endangers the child’s physical and emotional well-
`11
`
`
`
`

`

`
`
`being. Id.
`
`Drug abuse and its effect on the ability to parent can present an endangering
`course of conduct. In re J.O.A., 283 S.W.3d at 345; see In re S.R., 452 S.W.3d at
`361. Drug use can endanger a child “when the environment creates a potential for
`danger that the parent is aware of but disregards.” In re E.R.W., 528 S.W.3d 251,
`264 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
`
`1. Mother
`
`The children were removed because Mother left them alone in a car while she
`went into a store where it was alleged she was shoplifting. Mother did not know
`Father’s location and could not identify any other placement for the children. Due to
`lack of resources for the children, law enforcement officers transported Mother and
`the children
`to
`the police station where Mother dropped a packet of
`methamphetamine on the floor. Mary, five-years old at the time, picked up the
`methamphetamine, identified it as belonging to “Mommy,” and said she needed to
`save it for Mommy.
`
`Mother argues that the Department presented no evidence about its initial
`decision to seek removal because none of its investigators testified. The removal
`affidavit, however, was attached to the Department’s original petition for
`termination. Because the removal affidavit is in the court’s file, we presume the
`district court took judicial notice of its record without any request being made and
`without any announcement that it had done so. See In re K.F., 402 S.W.3d 497, 504
`(Tex. App.—Houston [14th Dist.] 2013, pet. denied). Therefore, the district court
`could consider the removal affidavit when making its finding of endangerment.
`
`Mother further argues that there is no evidence her conviction for possession
`of methamphetamine endangered her children. Subjecting a child to a life of
`
`
`
`12
`
`

`

`
`
`uncertainty and instability endangers the child’s physical and emotional well-being.
`See In re J.O.A., 283 S.W.3d at 345. Although incarceration alone will not support
`termination, evidence of criminal conduct, convictions, and imprisonment may
`support a finding of endangerment under subsection (E). See In re A.R.M., No. 14-
`13-01039-CV, 2014 WL 1390285, at *8 (Tex. App.—Houston [14th Dist.] Apr. 8,
`2014, no pet.) (mem. op.); In re C.A.B., 289 S.W.3d 874, 886 (Tex. App.—Houston
`[14th Dist.] 2009, no pet.). Likewise, illegal drug use may support termination under
`subsection (E) because “it exposes the child to the possibility that the parent may be
`impaired or imprisoned.” Walker v. Tex. Dep’t of Family & Protective Servs., 312
`S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). This court has
`held that 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 A.H.A., No. 14-12-00022-CV, 2012 WL 1474414 (Tex. App.—
`Houston [14th Dist.] Apr. 26, 2012, no pet.) (mem. op.).
`
`Mother testified that the Department had not required her to submit to drug
`testing while
`the case was pending. Mother, however, admitted using
`methamphetamine after discharge from substance-abuse treatment. When the district
`court requested that Mother submit to drug testing and arranged for transportation to
`the facility, Mother did not appear. Mother’s refusal to submit to drug testing, which
`could have revealed continued methamphetamine use, may be treated by the district
`court as if she had tested positive for drugs. See In re E.R.W., 528 S.W.3d at 265; In
`re C.A.B., 289 S.W.3d at 885. Even without considering her refusal to submit to drug
`testing, Mother’s admission of illegal drug use after the children were removed
`supports the district court’s endangerment finding. See In re S.R., 452 S.W.3d at
`361–62 (continued drug use after child’s removal may be considered as establishing
`
`
`
`13
`
`

`

`
`
`endangering course of conduct).
`
`Considered in the light most favorable to the district court’s finding, we
`conclude that the evidence is legally sufficient to support the district court’s
`termination of Mother’s parental rights under section 161.001(b)(1)(E) under these
`circumstances. Likewise, viewing the entire record, we conclude any disputed
`evidence is not so significant as to prevent the district court from forming a firm
`belief or conviction that termination was warranted under section 161.001(b)(1)(E).
`Accordingly, we conclude that the evidence is factually sufficient to support the
`subsection E predicate finding.
`
`In light of this conclusion, we need not address the district court’s finding on
`subsection D. See In re A.V., 113 S.W.3d at 362. We overrule Mother’s first issue.
`
`2.
`
`Father
`
`Father argues the Department provided no evidence that Father continued to
`engage in a course of conduct to endanger the children or place the children with
`anyone who would endanger them. Father emphasizes that while incarcerated he
`underwent substance-abuse treatment and other classes to help him when he was
`released. Father further argues there was no evidence that he engaged in any
`behavior that would endanger the children.
`
`The record reflects that in 2014 Father received deferred-adjudication
`probation in exchange for a guilty plea to possession of a controlled substance.
`Father violated his probation and was incarcerated at the time the children were
`removed. During the pendency of this termination, Father was out of jail for a total
`time of approximately four months. To his credit, knowing he was going back to jail,
`Father attempted to find a place for Mother and the children to live.
`
`As noted above, intentional criminal activity that exposes a parent to
`
`
`
`14
`
`

`

`
`
`incarceration is conduct that endangers the physical and emotional well-being of a
`child. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)
`(“[I]mprisonment is certainly a factor to be considered by the trial court on the issue
`of endangerment.”); Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st
`Dist.] 1997, no writ) (parent’s past criminal conduct, before and after child’s birth
`relevant to showing of inability to parent); see also In re M.R., 243 S.W.3d 807, 819
`(Tex. App.—Fort Worth 2007, no pet.) (holding that father’s imprisonment, along
`with drug use, criminal conduct, and allowing child to live with known drug users,
`constitutes endangerment).
`
`In Boyd, the father of the child was in jail at the child’s birth. 727 S.W.2d at
`533. He saw the child eight months later upon his release on parole, lived with her
`for five months, and then returned to jail for burglary. Id. The evidence was “vague,
`at best” as to whether he ever supported the child. Id. He was not married to the
`mother, and no adjudication of paternity took place until the termination hearing. Id.
`at 532. Reversing the court of appeals, the Texas Supreme Court concluded that such
`evidence can support a termination finding based on endangerment. Id. at 533. The
`court expressly disagreed with the court of appeals’ conclusion that danger under
`subsection E “cannot be inferred from parental misconduct.” Id.
`
`The court’s holding in Boyd continues unabated. In In re J.O.A., the supreme
`court reversed the court of appeals and determined the evidence was legally
`sufficient to support the trial court’s termination of the father’s rights based on
`endangerment without any bad conduct directed toward the children involved. In re
`J.O.A., 283 S.W.3d at 345–46 (Tex. 2009). It did so because: (1) the father “had a
`history of domestic violence” toward the mother and had admitted to daily marijuana
`use,4 and (2) he was incarcerated on criminal charges that were later dismissed. Id.
`
`
`4 The supreme court explained that “a parent’s use of narcotics and its effect on his or her
`15
`
`
`
`

`

`
`
`at 346. The supreme court found sufficient evidence of endangerment despite the
`father’s efforts, after Department involvement, to improve: engaging in supervised
`visits with his children, securing steady employment, and completing parenting
`classes. Id. In J.O.A., the high court reaffirmed the principle in Boyd that
`“endangering conduct is not limited to actions directed toward the child.” Id. at 345
`(quoting Boyd, 727 S.W.2d at 533).
`
`Here, Father has an extensive criminal history dating back to 1997, including
`the 2014 drug charge. He was incarcerated at the time of removal and during the
`entire hearing. He was incarcerated when the final hearing terminating his parental
`rights took place. While not conduct directed at his children, such conduct is clear
`and convincing support for the district court’s termination decision based on the
`ground of endangerment because the conduct placed his children in jeopardy. In re
`J.O.A., 283 S.W.3d at 347; Boyd, 727 S.W.2d at 533–34; see also In re C.H., 89
`S.W.3d 17, 28 (Tex. 2002) (criticizing court of appeals for failing to account for
`father’s pattern of conduct that is “inimical to the very idea of child-rearing,”
`including conduct displaying criminal proclivities and fact that father had seen child
`only twice).
`
`Considered in the light most favorable to the district court’s finding, we
`conclude that the evidence is legally sufficient to support the district court’s
`termination of Father’s parental rights under section 161.001(b)(1)(E) under these
`circumstances. Likewise, viewing the entire record, we conclude any disputed
`evidence is not so significant as to prevent the district court from forming a firm
`belief or conviction that termination was warranted under section 161.001(b)(1)(E).
`Accordingly, we conclude that the evidence is factually sufficient to support the
`
`
`ability to parent may qualify as an endangering course of conduct.” In re J.O.A., 283 S.W.3d at
`345.
`
`
`
`16
`
`

`

`
`
`subsection E predicate finding. We overrule Father’s first issue.
`
`B.
`
`Best Interest of the Children
`
`In Mother’s fifth issue and Father’s second issue, the parents challenge the
`legal and factual sufficiency of the evidence to support the district court’s finding
`that termination of their parental rights is in the best interest of the children. See Tex.
`Fam. Code Ann. § 161.001(b)(2).
`
`There is a strong presumption that the best interest of the children is served
`by keeping the children with their natural parents. In re R.R., 209 S.W.3d 112, 116
`(Tex. 2006) (per curiam) (citing Tex. Fam. Code Ann. § 153.131(b)); In re D.R.A.,
`374 S.W.3d at 533. However, prompt and permanent placement of the child in a safe
`environment is also presumed to be in the children’s best interest. In re S.R., 452
`S.W.3d at 366 (citing Tex. Fam. Code Ann. § 263.307(a)). Proof of acts or omissions
`under section 161.001(b)(1) is probative of the issue of the children’s best interest.
`See id. The considerations that the fact finder may use to determine the best interest
`of the children, known as the Holley factors, include:
`
`(1) the desires of the children;
`(2) the present and future physical and emotional needs of the children;
`(3) the present and future physical and emotional danger to the children;
`(4) the parental abilities of the person seeking custody;
`(5) the programs available to assist the person seeking custody in
`promoting the best interest of the children;
`(6) the plans for the children 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 parent’s acts or omissions.
`
`
`
`17
`
`

`

`
`
`See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re S.R., 452 S.W.3d
`at 366; see also Tex. Fam. Code Ann. § 263.307(b) (listing factors to be considered
`in evaluating “whether the child’s parents are willing and able to provide the child
`with a safe environment”). A best-interest finding does not require proof of any
`unique set of factors, nor does it limit proof to any specif