### IN THE TENTH COURT OF APPEALS
No. 10
- 21
- 00089
- CV IN THE INTEREST OF L.L.L., A CHILD

From the 77th District Court

Limestone County, Texas Trial Court No. CPS
- 351
- A

MEMORANDUM OPINION

In three issues, the Father of L.L.L. ( “ Father ” ) appeals the trial court ’ s termination of his parental rights. The mother of L.L.L. ( “ Mother ” ) voluntarily relinquished her parental rights and is not a par ty to th i s appeal. Th e trial court determined that Father had violated subsections ( D), (E), and (O) under § 161.001 of the Family Code and that termination was in the child ’ s best interest. See T EX
. F AM
. C ODE
A NN
. § § 161.001 (b) (1) (D), (E), and ( O) and 2. We w ill affirm.
Issues Father presents the following issues:
First Issue: The court abused its discretion by denying an extension.In re L.L.L. Page 2 Second Issue: The Department presented no evidence or factual ly insufficient evidence to prove an endangering environment.
Thir d Is sue: The Department presented no evidence or factually insufficient evidence to prove an endangering course of conduct.
Father does not contest the trial cou rt ’ s findings that he vio l a ted subsection ( O )
and that termination is in the best interes t of th e child. 1 Background L.L.L. was born in May 2017 while both parents were incarcerated. Between the
time of her birth and Fa ther ’ s release from custody in November 2017 , L.L.L. was cared for by Mother ’ s si ster and then by a woman who led 12

- st ep an d Ch rist ian Ministry classes at the jail where Father was in custody. Father was reluc tant to have L.L.L.
cared for by Mother ’ s family. Father took custody of L.L.L. when he was released.
Mother was subsequently released from incarceration in February 2 018

. Fa ther,
Mother , a nd L.L.L. a ll lived together ; first in Austin and then in Bur net when Father went to work with a company out of Marble Falls. In February 2020, Father was
arrested for DWI.
L.L.L. came to the attention of the Department in Marc h 20 20 a fter Father mad e a complaint that Mother w as using marijuana and m ethamphetamine and neglecting
L.L.L. Father and Mother , who married in August 2018, had s eparated and were

1 While violation of subsection (O) may alone support the terminatio n of parental rights , a parent ’ s challenge to the sufficiency of the e v idence regarding violations of subsections ( D) or (E) must als o be reviewed due to the concerns of collater al consequences in the future

. See In re N.G. , 577 S.W.3d 230 , 235 (Tex. 20 19).In re L.L.L. Page 3 sharing alternate physical cus tod y of L.L.L. at the time of Fa ther ’ s complaint

. Father ’ s complaint was trigger ed by Mother ’ s refusal to return L.L.L

. to him. When the Department investigated, Mother also accused Father of using mar ijuana and methamphetamine as we l l as alcohol. Mother agreed to return L.L.L. to F ath er on March 27, 2020. During the Department ’ s investigation, Mother and Father both tes ted positive for methamphetamin e. Father admitted to the Department investigator that he had used methamphetamine in January. During a divorce hearing in April , the t rial court
orde red L.L.L. removed from her parent ’ s custody and placed with the Depar t m e nt. A drug test administered to L.L.L. was positive for metham phetamine. L .L.L. was first placed with a couple w h o cared for her prior to Father ’ s release from incarc eration, then
p laced with a couple who were rel ated to Father. Also in Apri l 2020, Father was d irected to complete a num ber of tasks through a Family Servi ce Plan, which he did not complete. Father co m pleted some outpatient drug therapy and entered a n in

- patient drug f acility in September. Father completed a twenty

- day program, then was arrested in October for burglary and fraudulent use/ possession of anot her ’ s identifying information. F ather entered pleas of guilty to both offenses. The stipulation of facts that Fat her swore to reflects that the offenses were committed on July 31, 2020 (burglary) and September 30, 2020 ( identifying information). Father again test ed positive for methamphetamine afte r a drug test in
December 2020 , although he denied usi ng methamphetam ine after he was releasedIn re L.L.L. Page 4 from the in

- patient drug facility. Prior to his incarceration in October, Father failed to complete two required d rug tests. Mother ha s a history of drug use a n d a history with the Department. Mother was pregnant with her third child when she and Father b egan a relationship in 2015

. The child was removed after testi ng positive for drugs at birth. Father was present for
at least two of the Department h earings i nvolving this chi ld , asking for the child to be place d with him. Mo ther voluntarily relinquished her parental rights to this child as she did with two other children and with L.L.L

. Father admitted to the Department investigator that he was aw are of Moth e r ’ s history with the Department and her history
of d r ug use. Fathe r has an extensive criminal history beginning while he wa s stil l a juvenile

. Father has been either in custody or on some form of supervision for the majority of
L.L.L. ’ s life.
Discussio n A. Extension

. In his first issue, Father argues t hat the trial court abused its discretion in denying his request for a six

- month extension of the final termination hearing and dismissal date in order to allow him to complete the court

- ordered services.
In his motion an d at a hearing before the trial court, Father ar gued t hat his incarceration
and in

- patient drug treatment del ayed his ability to complete h is service plan.
The trial court orally denied the motion at the permanency hearing held on March 5, 2021 , noting:In re L.L.L. Page 5 I can ’ t make

- - I cannot make a finding based on this case that extraordinary circumstances exist. Indigent

- - exigent, I might could; bu t extraor d i nary, I cannot because I don ’ t think that extraordinary circumstances have existed other than the fact tha t [the parents] have

- - [the parents] ’ ve gotten incar cerated. And so I ’ m denying that extension. A trial court's ruling on a moti on fo r extension is reviewed for an abuse of
discretion. In re K.

- A.B.M. , 551 S.W.3d 275, 283 (Tex. App.

— El P a so 2018, no pet.). A
trial court abuses its discretion whe n it acts “ without reference to any guiding rules or princip les

. ” In re M

- I L.L.C. , 505 S.W.3d 569, 574 (Tex. 2016) ( quoting Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

- 42 (Tex. 198 5 ), cert. denied , 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) ) ; see also In re J.S.S. , 594 S.W.3d 493, 500 ( T ex. App.

— Waco 2019 , pet. denied )

. The trial court ’ s judgment will be reversed “ when it acts arbitrarily, unreasonably, or without referen c e to legal prin ciples. “ Berkel & Co. Contractors, Inc. v. Lee , 612 S.W.3d 280, 287 (Tex. 2020).
The trial court may maintain a suit on the court's doc ket after the one

- year period mandated by the Family Code if the cou rt ma kes a finding that “extraor din a ry circumstances necessitate the child remaining in the tem pora ry managing conservatorship of the department and that continuing the appointment of the department as temporary manag ing conservator is in the best interest of the child.”
T EX
. F AM
. C ODE A NN
. § 26 3.401(b). A circumstance s uch as incarceration is not

nec essarily an “extr aor dinary circumstance” that merits an extension. See In re M.S. , 602 S.W.3d 676, 680 (Tex. App.

— Texarkana 2020, no pet .) (parent ’ s incarceration generally viewed as parent ’ s fault and not extraordinary circumstance s ) ; see also In re C.G. , No. 02

- 20

- 00087

- CV, 2020 WL 4518590 at *3 (Tex. App.

— Fort Worth Aug. 6, 2020 , pet. denied )In re L.L.L. Page 6 ( mem. op.) ( “ [ A ] parent ’ s inability to complete services due to confinement is not an extraordinary circumstance but i s instead the consequence of poor choice s
. . . . [P]arents cannot blunder their way into extraordinary circumstances. ” ).
F ather committed two offenses after the time that L.L.L. was removed from his

cu stody

. Father ’ s actions are what led to his incarceration and do not constitute an
extraordi nary circumstance justifying an extension. Nor wa s Father ’ s voluntary
admission into a n in

- patient drug treatment program an extraordinary circumstance

. The prog ram was only twenty days out of t h e approximately 180 days between the implementation of the serv ice plan and Father ’ s incarceration. T he trial court did not
abuse i ts discretion in denying Father ’ s request for an extension. Father ’ s first issue is

over ruled.
B. § 161.001

. In a pr oce e ding to termina te the pa rent

- child relationship brought
und er § 161.001, the Department must establish by clear and convincing evidence two elements: (1) that one or more acts or omissions enumerated under § 161. 001(b)(1), termed a predicate violation, we r e committed; an d (2) tha t termination is in the best
intere st o f the child. T EX
. F AM
. C ODE A NN
. § 161.001(b)(1), (2); In re S.L. , 421 S.W.3d 34, 37 ( Tex. App.

— Waco 20 13 , no pet. ). “Clear and convincing evidence” is defined as “that measure or degr ee of p roof which will produce in the mi nd of the trier of fact a
fi rm belief or conviction as to the truth of the allegations sought to be estab lished.” In re
K.M.L. , 443 S.W.3d 101, 112 (Tex. 2014) (quoting T EX
. F AM
. C ODE A NN
. § 101.007). As previously not ed , Father does not challenge the trial court ’ s finding that t er mi nation is
in the best int erest of L.L.L.In re L.L.L. Page 7 In his second and third issues, Father argues that there is no ev idence and factually insufficient eviden ce to support the trial court ’ s findings th a t he violated subsections (D) and (E). In a legal sufficie ncy review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a fir m belief or convic t ion that its finding was true. To give appropriat e deference to the fa ctfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing c ourt m u st assume that the fac tfinder resolved disputed fa ct s in favor of its f inding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have di sbelieved o r foun d to have been incredib le.
In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 200 2) ; see also In re S.L. , 421 S.W.3d at 38

. In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re J.F.C. , 96 S.W.3d at 266

. [T] he i nqui ry must be “ whether the evidence is such that a factfinder c ould reason ably form a firm belief or conviction about the truth of the State's allegations.” A court of appeals should consider w hether disputed evidence is such that a reasonable factfin der coul d not have r esolved that dispute d evidence in favor of its f inding. 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 reas onab ly have form ed a firm belief or conviction, then the evidenc e is factua lly insufficient.
I

n re J. F.C. , 96 S.W.3d at 266 (footnote d citations omitted); see also In re C.H. , 89 S.W.3d
17 , 25 (Tex. 2002)

. When no findings of fact or conclusions of l aw are f iled following a bench trial,

t he trial court's judgme nt implies all fi ndings necessary to support it. See MissouriIn re L.L.L. Page 8 Pacific R. Co. v. Limmer , 299 S.W.3d 78, 84 n.29 (Tex. 2009) (citing Pharo v. Chambers County , 922 S.W.2d 945, 948 (Tex. 1996)) ; see al s o I n re D.Z. , 583 S.W.3d 284, 295 (Tex. App.

— Houston [14th Dis t.] 2019, no pet.)

. “ However, w he re a reporter's record is filed,
as in this case , these implied findings are not conclus ive, a nd an appellant may challenge them by raising both legal and f actual sufficiency of the evidence issues. ” In
re G.B. II , 3 57 S.W.3d 382, 385 n.1 (Tex. App.

— Waco 201 1, no pet.). We give due deference to the factfinder's findings and must not su bstitute o u r judgment for that of the factfinder. See In re H.R.M. , 209 S.W. 3d 105, 108 (Te x. 2006).
The factfinder is th e sole jud ge “of the credibility of the witnesses and the w eight to give their testimony.” Jordan v. Dossey , 325 S.W.3d 700, 713 (Tex. App.

— Housto n [1st Dist.] 2010, pet. denied). The factfinder may choose to be lieve one witne ss and
disbelieve another. Cit y of Kelle r v. Wilson , 168 S.W.3d 802, 819 (Tex. 2005).
1 . Predicate Finding Under Subsection (E) . Termination under § 161.001( b)(1)(E) requ i res clear and convincing e videnc e that the parent has “engaged in conduct or knowingly plac ed the child with persons who engaged in conduct which endangers the physical or emotional well

- being of the child.” T EX
. F AM
. C ODE A NN
. § 161.001(b)(1 )(E). “Endan g er” means to expose to loss or in jury, to jeopardize. In re
M .C. , 917 S.W

. 2d 268, 269 (Tex. 1996) ( per curiam ) ; see also In re J.R. , 501 S.W.3d 7 38, 743 (Tex. App.

— Waco 2016, no pet.)

. While “endanger” requires “more than a threat o f metaphysical injury or the possi b le il l effe cts of a less

- than

- ideal family environme nt, it
is not nece ssary that the conduct be directed at the child or that the chil d actually suffers injury.” In re M.C. , 917 S.W.2d at 269

.In re L.L.L. Page 9 When termination is based up on subsection (E), the relevant i n quiry is whether evidence exists that the endangerme nt of the child's well

- b eing was the direct result of the parent's or another's con duct, including acts, omissions, or failures to act. In re
K.A.S. , 131 S.W.3d 215, 222 (Tex. App.

— Fort Worth 2004, pet. denied) ; see also In re E.M. , 494 S.W.3d 209, 222 (T ex. App.

— W aco 2015, pet. denied). A factfinder properly may consider actions and inactions occurring both be fore and after a child's birth and also may consider con duct occurring both before a nd after the Department removed a child
from the home. In re F .E.N. , 542 S.W.3d 752, 763

- 64 (Tex. App.

— Houston [14th Dist.]
2018 ) , pet. denied , 579 S.W.3d 74 (Tex. 2019) ( per curiam )

. A parent's past endangering conduct may create an inference that the p arent's pa st conduct may recur and further jeopard ize a child' s present or future physical or emotional well

- being. See In re D.M. , 58 S.W.3d 801, 812 (Tex. App.

— Fort Worth 2001, no pet.). A parent's conduct that subjects a child to a life of uncertaint y and instabi lity endangers the child's physical and
emotional w ell

- being. F.E.N. , 542 S.W.3d at 764

. Criminal activity, convictions, and
incarceration s are a mong the types of actions or omissions that subject a child to a life of

unce rtainty and instabi l ity. Se e In re V.V. , 349 S.W.3d 548, 554 (Tex. App.

— Houston [ 1 st
Dis t.] 2010, pet. denied); see also In re S.M. , 389 S.W.3d 483 , 492 (Tex. App.

— El Paso 2012, no pet.) (“Evidenc e of criminal conduct, convictions, imprisonment and its effects on a parent's life and ability to parent may establish an enda ngering course of

con duct.”). In this case, Father has been involved in criminal activity from when he was a juvenile in 2002 up until his arrest in O ctober 2020

— an 18

- year history of criminalIn re L.L.L. Page 10 behavior

. F ather was placed on deferred adjudication, pro bation, shock pr o bation, and any number of drug programs . However, his criminal behavior continued even after L.L.L. had been removed from his custody , committing two more offenses that resulted
in his incarc e ration. Father entered pleas to both offenses on the day the f inal
termination hearing was held. Father also was arrested for DWI , and the charges remained pending after the final termination hearing was concluded.
Father also exhibited con t inued abuse of illegal drugs , testing positive prior to
and after L.L.L. ’ s removal. Substance a buse “ can qualify as a voluntary, deliberate, and conscious course of conduct endangering the child ’ s well

- being. ” In re K.H. , No. 10

- 21

- 00073

- CV, 2021 WL 408 0 261, at * 4 (Tex. App.

— Waco Sept. 8, 2021, no pet. h. ) (mem. op.). A pare nt's illegal drug use and drug

- related criminal activity may .

. . support a finding that t he child's surroundings endanger his or her physical or emotional wellbeing. And “[b]eca u se it exposes the child to the poss ibility that the parent may be impaired or imprisoned, illega l drug use may support termination under section 161.001(1)(E).”

. . . A parent's co ntinued drug use demonstrates an inability to provide for the child's emo t ional and physical needs and to pr ovide a stable environment for the child.
In re M.R.R. , No. 1 0

- 15

- 00303

- CV, 2016 WL 192583, at *5 (Tex. App.

— Waco Jan. 14, 2016, no pet. ) (mem. op. ) (citations omitted) ; see al so In re Z.C. , 280 S.W.3d 470, 474 (Tex. App

. — Fort Worth 2009, pet. denied). Father exhibited a pattern of continued dr ug use, testing posit ive for methamphetamine before and after L.L.L. ’ s removal. Father ’ s drug use and continued criminal activity constitute a danger to L.L.L. ’ s physical and emot i onal wellbeing.In re L.L.L. Page 11 The evidence is legally and factually sufficient to suppor t the trial court ’s
d etermination that Father violated § 161.001(b)(1)(E) . We overrule Father ’s third issue.
Because we affirm the trial court ’ s finding that Father violated subsection (E ) , we need
not address his second issue that challenge s the trial c ourt ’ s finding in relation to

s ubsection (D).
Conclusion Having overruled Father ’ s first and third issues, we affirm the trial court ’ s judgment.

MATT JOHNSON Justice

Before Chief Justice Gray, Justice Joh nson, and Justice Smith, A ffirme d Opinion delivered and filed October 6, 2021 [CV06]