## In The Court of Appeals Seventh District of Texas at Amarillo

________________________ No. 07

- 2 1

- 00 149

- C

V

________________________ IN THE INTEREST OF M .D. , A CHILD

On Appeal from the 46th Judicial District Wilbarger C ounty , Texas Trial Court No. 29025 ; Honorable Dan Mike Bird , Presiding



### August 30 , 20 2 1 MEMORANDUM OPINION
Before QUINN , C.J. , and P ARKER and DOSS , JJ. Biological father , G .D. , appeals the trial court ’ s judgment terminating his parental rights to the child , M .D

. On appeal , he challenges the evidence supporting the trial court ’ s finding that termination of his parental rights was in the child ’ s best interest. We affirm. Parental rights may be involuntarily ended if a two

- pronged test is met. That is , clear and convincing evidence must establish both one or more of the statutory grounds permitting termination and termination must be in the child ’ s best interests. See T EX

. F AM

. C ODE A NN

. § 161.001(b) (West Supp. 2020 ) ; In re N.G. , 577 S.W.3d 230 , 232 (Tex. 2019) (per curiam). G .D

. does not dispute that clear and convincing evidence established the first prong and , thereby , implicitly conced ed that sufficient evidence supports the tri al2

court ’ s findings under Subsections (D) , (E) , ( F ) , and (Q). See T EX

. F AM

. C ODE A NN

. § 161.001(b) (1)(D) , (E) , ( F ) , and (Q) (West Supp. 2020)

. Therefore , unchallenged predicate statutory grounds support the termination of G .D

. ’ s parental rights. Additionally ,
s aid evidence can support the trial court ’ s best interest finding. See In re E.A.F. , 424 S.W.3d 742 , 750 (Tex. App.

— Houston [14th Dist.] 2014 , pet denied) (citing , inter alia , In re C.H. , 89 S.W.3d 17 , 28 (Tex. 2002)) ; see also In re T.C

. , No. 07

- 18

- 00080

- CV , 2018 Tex. App. LEXIS 6769 , at * 13 (Tex. App.

— Amarillo Aug. 23 , 2018 , pet. denied) (mem. op.) (noting that a parent who opts to forgo a challenge to predicate ground findings tacitly concedes that sufficient evidence supports those findings). 1 In determining the best interest of a child , courts apply the non

- exhaustive Hol ley factors in performing their analysis. See Holley v. Adams , 544 S.W.2d 367 , 371

– 72 (Tex. 1976). Those factors include the following : (1) the desires of the child ; (2) the present and future emotional and physical needs of the child ; (3) the present an d future emotional and physical danger to the child ; (4) the parental abilities of the individuals seeking custody ; (5) the programs available to assist these individuals to promote the best interest of the child ; (6) the plans held by the individuals seek ing custody of the child ; (7) the stability of the home of the parent and the individuals seeking custody ; (8) the acts or omissions of the parent which may indicate that the existing parent

- child relationship is not a proper one ; and (9) any excuse for th e acts or omissions of the parent. Id. The

1 To determine whether the evidence is legally sufficient to support the trial court ’ s bes t
- interest finding , we look at all the evidence in the light most favorable to the finding to determine whether a reasonable fact

- finder could form a firm belief or conviction that termination of parental rights is in the child ’ s best interest. See In re J.P.B. , 180 S.W.3d 570 , 573 (Tex. 2005). We must perform “ an exacting review of the entire record ” in determining the factual sufficiency of the evidence supporting the termination findings. In re A.B. , 437 S.W.3d 498 , 500 (Tex. 2014). We review the whole record to decide whether a fact

- finder could reasonably form a firm conviction or belief that termination of the parent

- child relationship would be in the child ’ s best interest. See In re C.H. , 89 S.W.3d at 28.3

foregoing indicia are not exhaustive , and t he absence of evidence on some of them does
not itself preclude a fact

- finder from reasonably forming a strong conviction or belief that termination is in the child ’ s best interest. In re C.H. , 89 S.W.3d at 27. To that we add the rule that a “ trier of fact [also] may measure a parent ’ s future conduct by his past conduct [in] determin[ing] whether termination of parental rights is in the child ’ s best interest. ” In re E.D. , 419 S.W.3d 615 , 620 (Tex. App.

— San Antonio 2013 , pet. denied). M.D. was born in June of 2018 and removed from his mother on March 14 , 2020 , after he tested positive for marijuana and THC. His brother , born on March 14 , 2020 , also testified positive for the same controlled substances and underwent removal. Both children were placed together with relatives and reside d there through trial. Upon removal , their mother performed few of the requirements placed on her to regain custody. Eventually , she informed the Department that she wanted to start life anew and abandoned the childr en

. Other evidence reveals that , but for two months , G.D. had been imprisoned during M.D. ’ s life . He had neither a relationship nor bond with the child. Nor had he ever provided any financial or emotional support for the child. Similarly missing was more than nominal effort on his par t to complete any of the conditions necessary to retain his relationship with M.D. His lack of effort included the two
- month period during his release from jail and subsequent re incarcerat ion for violating parole conditions. He did not submit to d rug tes t ing , find employment , or engage in services during that interim

. M.D. calls the couple with wh om he reside s his mother and father. Strong b onds have developed between them . The couple also “ worked very hard to create a normal life for the ” children , “ c ompleted all classes , [and] have gone above and beyond. ” The couple ’ s quick response also saved the life of M.D. ’ s brother when the latter ’ s appendix4

ruptured. Additionally , M.D. “ was behind developmentally and in speech ” but “ h as since successfully passed all of his ECI services. ” No longer was he “ going through any withdrawals

. ” Instead , he was “ doing great ” living with his cousins , according to the Department ’ s witness. G.D. ’ s incarceration exposed M.D. to a life of uncertainty and instability , which is a factor to weigh in the best interests analysis. See In re H.P. , No. 07

- 19

- 00394

- CV , 2020 Tex. App. LEXIS 3743 , at *14 (Tex. App.

— Amarillo May 1 , 2020 , pet. denied) (mem. op.) (noting that a parent ’ s incarceration is a factor to weigh when undertaking a best

- interest analysis). His lack of emotional and financial support for M.D. , his lack of a bond with the child , and his failure to complete services are also relevant factors. They , coupled with the enriching nature of the env ironment provided by M.D. ’ s c ousins , are more than ample to support a finding that termination of appellant ’ s parental rights was in the child ’ s best interest. 2
We hold that clearing and convincing evidence appears of record enabling a fact

finder to form a firm conviction and belief that termination of appellant ’ s parental relationship was in the child ’ s best interest. We overrule appellant ’ s sole issue and affirm the trial court ’ s judgment ending t he paren t
- child relationship between G.D. and M.D.

Per Curi a m

2 We note that , pursuant to the Texas Supreme Court opinion in In re N.G. , we generally review the trial court ’ s findings under section 161.001(b)(1)(D) and (E) when challenged. This is so because of the potential future consequences to a parent ’ s parental rights concern ing a different child. See In re N.G. , 577 S.W.3d at 235

– 37. Appellant ’ s engaging in criminal conduct resulting in his incarceration , leaving his child with one who abuses drugs , and providing neither financial nor emotional support for the child is evid ence that appellant engaged in a voluntary , deliberate , and conscious course of conduct endangering the child ’ s physical and emotional well

- being. Thus , t he record contains sufficient evidence upon which the trial court could have found that s ubsections ( D) and (E) supported termination of appellant ’ s parental rights.