### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

N O. 03
- 23
- 00104
- CV

E. J. , Appellant

v. Texas Department of Family and Protective Services , Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY NO. 22
- 0023
- CPSC1 , THE HONORABLE BRANDY H A LLFORD , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

E. J. (Father) appeals from the trial court ’ s decree terminating his parent al rights
to his two children , who were approximately five years old and three years old at the time of trial

. 1 Fath e r ch al lenges the legal sufficiency of the evidence supporting the predicate statuto ry
g round s for termination. S ee Te x. F am. Code § 161.001(b ) (1)(E ) (endangering conduct) , (N) (constructive abandonment) , ( O) ( failure to comply with court order). He also c hallenges the factual sufficiency of the evidence supporting the best interest finding

. 2 W e affirm th e t r ial court’s termination decree

.

1 For the child ren ’ s pri va c y, w e w ill refe r to the m by aliases and to f amily members by their relation s hips to them or by aliases. See Tex. R. App. P. 9.8

.

2 The trial court al s o terminated the parental rights of the children ’ s Mother. As part of an agreement with the Department, Mother stipu lated, and the trial court found, that termina tion of her pa r ental right s was in the best interest of the pursuant to Section 161.001(b)(1 ) (O) o f the T e xas Family Code

. See Tex. F a m. Code § 161.001 ( b)(1)( O ) (auth orizi ng termination when pa rent has “ failed to comply wit h t he provisions of a court orde r ” governing return of children)

. Mother a lso waived her right to appeal

.2 BAC KGROUND On April 17, 2022, t he Texas Depa rtment of Family and Protective Servi ces (Department) received a repor t about a physical a ltercation between Mother and her roommate that culmina ted in Mother being arrested for pushing her ro o mmat e . Mother ’ s roommate showed law enforce ment a video recording of Mother drag ging, hitting, and yelling at her older child ; Moth e r admitted to hitting her child with excessive force but denied that she had left any marks or bru ising

. S he also admitted to using marijuana and methamphetamine while her children

were inside the home. The investigator later learned that Father did not l i ve with or have contact with M other because a protective order prohibited Father from being within 200 yards of , or communicating with , Mo ther and the children. The Departm ent thereafter f iled its original petition seeking t ermination of Mother ’ s and F a t h er ’ s parental rights to the c hildren on April 22, 2022. The Court entered an order the same day, removing the children from Mother’s home and naming the Departm ent t he t emporary sole manag ing conservator. 3

The final bench trial commenced on February 7, 2 0 23

. Father did not attend the final hearing; his attorney of record explained that he attemp ted to co ntact Father through multiple communication medi a , and the trial court noted that Father was present when the final hearing date was set in open co urt. D uring the course of the proceeding, Father had been incarcerated , although he w as released prior to the final merits hearing.

Erin Weaver, the Department conservatorship caseworker, testified that she last had cont act with Father in the summer of 2022. F a ther attend ed his ps ychological assessment and one drug t est, but Weaver explained that Father did not co mplete all of the activities under his service plan or the remainder of his drug tests. She explained that F ather had not been

3 Mother was subse quentl y ch arged with felony injury to a child and was pr ohibited from contacting the c hildren during the pendin g t ermination proceeding.3

involved since the be g i nning of t he case. She explained that Father said “he wo uld do anything, he wants to par en t his children” but “then nothing would come to fruition.” Weaver testified that Father suggested placing the children wit h his mother, but that placem ent was d en i e d because the paternal step

- grandfather “has previous CPS history involving his olde st son.”

When discussing Father ’ s service plan, Weaver clarified that Father completed only one of at least ten drug tests , which returned a positive result

. 4 She also e x pressed concer n s with F ather using drugs because he “ ha s a crimi nal history involving drugs ” and a histor y of drug abuse. His service plan included a protective parenting skills course and individual therapy, but Father did not attend the parenting cour s e or therapy , and Fathe r did not provide a reason for not attending. Fa ther originally did not have visitation because of the protective order , but o nce that order expired in September 2022, Father needed to engage in services and then “the child advoca t e s could come back to the [trial court] with a recommendation on visitation, but [Father]

nev er did.” Weaver explained that the protective order was a two

- year protective order that prevented him from having any visits , and that order e nded during the cou r s e of the termi n ation
pro ceeding. Because Fathe r never sufficiently engaged in s ervices, visitations were never allowed

. Weaver testified that Father has not sent any letters or gifts to the children, does not know their birthdays, and has not contacted h er ab out as kin g to visit the children since the previous summer. On cross

- examination, she clarified that the investigation leading to the removal of the children “wasn’t done on [Father]

. ” She also admitt ed there was no evidence Father had ph ysically h a r med t he chi ldren and that her understanding was that the protective

4 The record on appea l does not de m o nstrate wh at substance (s) returned a positive result on the drug testing, but testi mony in the record reflect s that F a ther had admi tted he was going to a methadone clinic. See In re T.J.R. , No. 2

- 06

- 345

- CV, 2007 WL 614085, at *5 (Tex. App.

— Fort Worth Ma r . 1, 2007, no pet.) (mem. op.) (per curiam) (noting that methadone is “ an addictive opiate ” sometimes used to treat other opiate addi ctions).4

order was not because of any physical harm to the children. She also clarified that the protective order prevented Father from visiting , and that she agreed it prev ented contact by Fath e r incl uding sending gifts or letters.

W eaver stated that Father was incarcerated for parts of the termination proceeding , but since his release, Father has not contacted her , responded to her messages, or provided an updated a ddress. Weaver also t esti fied th at Father represented that he was self

employed as an electrician, but he never provided any pay stubs or other documentation of employment , and that Father never completed a drug and alcohol assessment

. Father completed a psychologi cal evalu at ion in J u ly 2 022, but he did not comply with psychological recommendations, which was required under the service plan. She also testified that Father did not attend a batterer’s intervention program she referred him to, nor did he complete individual

coun seli ng w i th a therapis t

. As she explained, Father has not had anything to do with the children “[r]eally for most of their lives. I mean, he hadn’t seen them in years

— or at least a year i f he followed the protective order for two years prior to [the Depa rtme nt ] g etti ng involved.”

Weaver also testified that the children are currently separately placed, but they have regular visits and the Department is looking for a home where th ey may be plac ed togeth er. She testified that the children are well, enjoying thei r vi s its with e ach other, and that they are “loved and cared for” in their current placements. Regarding potential placements, Mother suggested her s ister, on whom the Department was undertaking an expedited home study, but otherwise th ere were no other m ate r n al family mem bers being considered at the time of trial. In response to a question regarding Father’s potential plans for parenting the children, Weaver expressed that “I don’t think he has o ne outside of his mom raising the kids a nd him visiting the m th e re.” She expressed concerns about the children’s safety if returned to Father and5

explained that Father had not done anything to cause her to believe he could provide a safe and stabl e home fo r them in the near future. Weaver sta ted that neither of the c hildren’s current placements can take both children, but that each of the placements individually are able to continue caring for the children separately until the Department finds a n ew placement.

When questioned about Father’s en dangering conduct, W eave r explained that “based on his initial drug tests and his lack of any other drug tests, that he was participating in a methadone clinic to some deg ree b ut he was also misusing drugs.” She also testified that he had violence in his relationship with Mo ther , which was endangering to the children even though he did not directly commit violence against the children. Weaver testified that ter mination was in
t he best i nterest of the children because they “need stability and consistency,” “need sober and
att enti v e parents,” and need to “ be able to trust t heir caregivers to be appropriate and be able to be there wh en they need them.”

On cross

- examination, Weaver noted that the protective order related to a conviction for assault against a family member , c o vered bo t h Mother and the children, and that

s he believed it was viole nce towards Moth er and th at “I don’t think he ever physically abused the children that we have on record.” Weaver testified that Mother described Father as “ve ry violent, that she w as a fraid of the kids being with him,” and that “s he was afraid of seeing him.” She emphasized that domestic violence by one parent against the other parent affects the children. In response to a question whether “[a] person engages in breaking the law a nd d oing drug s and domestic violence” creates a da nger for thei r child, Weaver responded “[y]es.” She testified that Father has demonstrated he cannot provide a safe environment for the child ren based on his past, his lack of partici pation, and his incarc era t ion.6 Amy Z avala, the CASA vo lunteer, t e stified that the children are “doing beautifully” and that their current placements are the best place for them to be. She testified that termination was in the children’s best inter est because of Father’s hist ory

— “ t he fact t h at he has not even seen the kids or been around the kids or been in the [ir] presence for most of ” the children’s lives

. Whe n asked whe ther the children know who Father is, Zavala rep lied “ No , ” and t hat she did n ot think the children would know w ho Father w as if his name was said in front of them. After hearing closing arguments, t he trial court found clear and convincing evidence that subsection s (E), (N), and (O ) supported termination, and that terminating Fat her ’s parental rights was in the ch i l dren ’s b e st interest. See Tex. Fam . Code § 161.001(b)(1) (E) ( endangering conduct ), (N) ( constructive abandonment ), (O ) (failing to comply with court order provisions necessary to obtain return of child), (b)(2) ( best in terest find ing)

. The trial court
t hereafter signed an order of termination memorializing its oral findings . This appeal followed. 5

S TANDAR D OF REVIE W To terminate th e parent

- child r elationship, a cour t must find by clear and convincin g ev idence that (1) the parent has committe d one o f t he enumer a ted statutory grounds for termination a nd (2) it is in the child’s best interest to terminate t he parent’s rights. Tex. Fam

. Code § 161.0 01 (b) . Clear and con vincing evidence is “the measure o r de gree of proof that will produce in the mind of t h e trier o f fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id . § 101.007

.

5 Father moved for new trial, which was denied by operation of law. After a request by Father, the trial court issued findi n gs of fact and conclusions of law on March 10, 2023

.7 In this context, “ [t] he distinction between legal and factual su fficiency lies in
t he extent to which disputed evidence co ntrary to a findi ng m a y be considered.” In re A.C ., 560 S.W. 3d 624, 630 (Tex. 2018) . When determining legal suffi ciency, we consider whether “a reasonable factfinder co uld form a firm belief or co nviction that the f inding was true” wh en the evidence is v iewed in th e ligh t mo s t fa vorable to the factfinder’s determi nat ion and undispu ted contrary evidence is considered. Id . at 631 . When determining factual su fficiency, we consider whether “in light of the entire recor d, the disputed evi dence a reasonable f actfinder c o uld n ot h a ve c redited in favor of a finding is so si gnificant that the factfinder could not have formed a firm belief or conviction that the find ing was true. ” Id

. We must “provide due deference to the d ecisions of the fac tfinder, who, having full oppor t unity to o bser ve witness testimony first

hand, is th e sole arbiter when assessing the credibility and d emeanor of witnesses.” In re A.B ., 437 S. W.3d 498, 503 (Tex. 2014) ; see In re J.P. B ., 180 S.W.3d 570, 573 (Tex. 2005)

.

H owever, “an appellat e court’s r e view must not be so rigorous that the only f act findings that c ould withstand review are those esta blished beyond a reasonable doubt.” In re C.H. , 89 S.W .3d 17, 26 (Tex. 2002) . “While p arental rights are of constitutional m agnitude, they are n ot absolute

. ” Id

. “ J ust as it is imperative for courts to recognize the constitutional underpinnings of the parent

- child relationship, it is also essential that em otional and physical interests of the child not be s acrificed merely to preserve that right .” Id

.
D ISC USSIO N
I n hi s firs t th ree issues, Father challenges the legal sufficiency of the evide nce supporting t he t rial court’s findings under s ubs ectio ns ( E), (N), and (O). We begin by analyzing
t he su bsection (E) finding because of that finding ’ s “ significan t consequence s f or future parental rights. ” See In re N.G ., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam)

.8 Subsection (E) “allows for termination o f p arental rights if clear and convincing evidence sup ports that the parent ‘engaged in conduct or kn owingly p laced the ch i ld with persons who engaged i n conduct which endangers the physical or emotional wel l

- being of the child .’” Id. at 234 (quoting Tex. Fa m. Code § 161.001(b)(1)(E) )

. That is, our analysis unde r subsection (E) “ focuses on the pa rent ’ s conduct a nd whe ther t h e parent engaged in a volunta ry, deliberate, and conscious course of conduct that en dangered the child. ” A. R. v. Tex as Dep ’ t of
Fam

. & Protective Serv s. , No. 03

- 21

- 00526

- CV, 2022 WL 6272 24, a t *6 (Tex. App.

— Austin
Mar. 4, 2022, no pe t.) (mem

. op.)

.

F o r p u rp oses of a parent ’s conduct under subsection (E), “endanger” means “to expose to lo ss or injury; to jeo pardize.” In re J.W. , 645 S. W.3 d 726, 748 (Tex. 2022) (quoting Texas Dep’t of Hum. Serv s. v. Boyd , 727 S.W.2d 531, 533 (Tex. 19 87 ) ). “ ‘[E]ndang er’ me a ns more than a threat of meta physical injury or the possible ill effects of a less

- t han

- ideal family

env ironment, [but] it is not nec ess ary that the conduct be directed at the child o r th at th e child actually suffers inj ury.” In re M .C. , 9 17 S.W.2d 268, 2 69 (Tex. 1996) (quoting Boyd , 727 S.W.2d at 533 ); see also A.C. v. Texas Dep’t of Fa m. & Protective Serv s. , 577 S.W.3d 689, 699 (Tex. Ap p.

— Austin 2019, pet. denied)

. When considering whet her a parent’s conduct was endan gering under s u bsec t ion (E), “ the c a us e of the danger to the child must be the parent’s conduct alone, as evi denced not o nly by the parent’s actions but also by the pare nt’s omission or failure to act.” C.B. v. Texas Dep’t of Fa m. & Protective Servs. , 458 S.W.3d 576, 58 2 (T e x. App.

— El Paso 20 14, pet. denied) ; see also S

. R. v. Texas Dep’t of Fam. & Protective Se rvs. , No. 03

- 21

- 00142

- CV, 2021 WL 3437891, at *1 (Tex. App.

— A usti n Aug. 6, 2021, no pet.) (mem. op.). “Additionally , ter mination under subsection ( E) must be b ase d on more than a9

sin g le act or omission; a voluntar y, deliberate, and conscious course of con duct by the p arent is required.” C.B. , 458 S.W.3d at 582

.

Fa ther contends that the evidence is legally insufficient to support a subsection (E) fin ding because he wa s subject to a p r ote ctive order from September 2020 through September 2022 that prohibited his contact or a ccess to the children, and therefore he

cou ld not have e ndangered the children.

Contrary to Father ’ s argument , the evidence relating to the pr otectiv e order
goes to F at her ’ s endangering conduct. See In re J.O .A

. , 283 S.W.3d 336, 345 (Tex. 2009)

. T he trial court considered extensive uncontested ev ide nce regarding Fa ther ’ s past domestic violence against Mother. When asked about her discussions with Mo t her, Weaver rel a ye d that Mother stated Father “ was very viole nt, that she was afraid of the kids being with him, and that initially in the case we ha d their cases separated because of the court order and she was afraid o f seeing him. ” See J.G. v. Tex as D e p ’ t of Fam

. & P r ot ective Serv s. , 592 S.W.3 d 515, 524 (Tex. Ap p.

— Austin 2019, no pet.) ( “As a gen eral rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well

- being of a child.” ( quoting In re J .O.A. , 283 S.W. 3 d at 345 n.4 ) )

. The rem oval affidavit , which was admitted into evid ence, detailed

a May 2020 report received by the Departme nt that Fa ther had knocked Mother into the ground, “ beat her, and stran gled her ” (the children were not pre sen t f o r this alte rcat i on). See id. ( “ E vidence of domestic violence is also relevant to endangerment, even if the violence is not directed at the ch ild. ” )

.

The trial court also considered evidence of Father ’s c riminal conviction for assault causing bodi ly injur y - f

amily violenc e and the protective order itself

. See id. ( “ Evidence of a parent ’ s criminal history, convictions, and resul ting imprisonment may establish an endangering10

course of conduct. ”)

. Ju st as we explained in E. E. v. Tex as Dep art ment of F am ily a nd Protective Ser v ice s , 598 S.W.3d 389 (Tex. App.

— Austin 2020, no pet.) , “the d istrict court could have reasonably inferred [Fa ther] had endangered the child ’ s emotional well

- being ” by his multi

- y ear absence from the c hildren ’s lives and from his con d uct n ecessitating the p rotective order , id. at 406

. Father attempts to distinguish E.E. on the ground t hat the terminati on proceeding in that

case arose from the same in cident that lead to the protective order, id. , but the t rial court may consider eviden ce o f conduct both be f o r e and after the c hildren ’s birth and before and after the children ha ve been removed by t he D epartment , s ee M. L. v. Tex as Dep ’ t of Fam

. & Protective Serv s. , No. 03

- 22

- 00541

- CV, 2023 WL 2025710, at *4 (T ex. App.

— Austin Feb. 16, 2023,

no p et.) (mem. op.) ; s ee also D. H. v. Tex as Dep ’ t of Fam

. & Protective Serv s. , 652 S.W.3d 54, 59 (Tex. App.

— Aust in 2021, no pet.) (explaining “ factfinder may consider conduct that occurred bo th before and after the child was born ” when eva luating endanger ment finding)

.

The rec o rd also re flects that the protective order expired in September 2022, and that the trial court had separately stated at a n earlier status hearing that the protective order could be modified if Father engag ed in ser vices. Weaver te sti fie d , however, that F a ther never satisfactorily engaged in services , including failing to complete a drug and alcohol assessment, to comply with recommendations from a psychological evaluation, to sign required releases, or t o attend almost all drug te s ts. S e e In r e J.A .V. , 6 3 2 S.W.3d 121, 132 (Tex. App.

— El Paso 2021, no pet.) ( “ Finally, a par ent ’ s inconsistent visitation may also be co nsidered as part of the endangerment analysis, as can the parent ’ s failure to partici pate in a service plan. ” )

.

Furt he r, the e vidence concernin g Father ’ s drug use history also constituted end angering conduct. See In re J.O.A. , 283 S.W.3d at 345 (“[A] parent ’ s use of narcotics and its effect on his or her ability to parent may qu alify a s an endangeri ng course of conduct .” ) ; see a lso11

D. H. , 652 S.W

. 3d at 60 ( “ In addition, a parent ’ s d rug use may support termination under subsection (E) because it exposes the child to the possib ility that the parent may be impaired

or imprisoned. ” )

. Weaver testified that Father had a crimi na l histo r y involving drugs and was going to a methadone clinic , “ w hich mea ns that he has [a] drug history. ” T he trial court heard testimony that F a ther had only completed an initial drug test in May 2022 , whi ch returned a positive result, and that Father f ailed t o attend at least n ine other drug te sts. S ee A. C. , 577 S.W.3d
at 699 ( “ A parent ’ s illegal drug use may constitute endangerment under subsection (E )

. ” )

. Weaver also testified that sh e informed Father th at the Department considers mis sed drug tes ts “as a po s itive ” result, a n d she then confirmed that Father still failed to attend “at least 90
perc ent ” of his scheduled drug tests

. See In re C.A.B ., 289 S.W.3d 874, 885 (Tex. App.

— Houston [14th Dist.] 2009, no pet. ) (“A factfinder reasona bly could in fer that [p a rent ’ s] failure t o submit to the court

- ordered dr ug screening indicated [th ey were] avoiding testing be cause [they were] using drugs.”) ; accord G. S. v. Tex as Dep ’ t of Fam

. & Protective Serv s. , No. 03

- 20

- 00342

- CV, 2020 WL 6479017, at *5 (Tex. Ap p.

— Austin N o v. 4, 2020, pet. d enied) (mem. op.)

.

C ontrary t o Father ’ s contention s , there is legally sufficient evidence in the record that F ather engaged in a co urse of conduct that endangered the physical and emotio nal well

being of the c hildren

. See Tex. Fam. Code § 161.001(b)(1) (E )

. Because we conclude suffi cient evidence supports te rmination under subsection (E), we do not need to address the other predicate statutory grounds. See In re N.G. , 577 S.W.3d at 232 ( “ To affirm a termination judgment o n appeal, a cou r t need uphold onl y one termination ground

— in a ddition to upholding a challenged best interest finding

— even if the trial court based the terminati on on more than one ground. ”). W e overrule F ather ’ s first three issues on appeal

.12 In his fin a l issue, Father c hallenges the fac t ua l sufficien cy of the evi dence
supp orting the best interest fi nding. “[T]here is a strong presumption that the best interest of a child is served by keeping the child w ith a p arent.” In re R.R ., 209 S.W.3d 112, 116 (T e x. 2006) (per cu r iam)

. “In pa rent a l

- termination proceed ings, [the Department’s] bur den is not simpl y to
prove that a parent shoul d not have custody of [the] child; [the Department] must meet the heightened burden to p rove, b y clear and convincing evidenc e , that the paren t should no lo nger have any relationship with the child whatsoever.” S.B. v. Texas Dep’t of Fa m. & Protective Ser vs ., 654 S.W.3 d 246, 255 (Tex. Ap p.

— Austin 2022, pet. d enied ) (quoting In re D.L. W .W ., 617 S.W.3d 64, 81 (T ex. Ap p.

— Houston [1st Dist.] 202 0, n o pet.) ).

We cons i der nine factors to determine whet her termination is in a child’s best interest: the child ’s wishes, the child’s emotional and ph ysical needs now and in the fu t u re, any
emot ional or physical danger to the child now an d in the future, the parenti ng abiliti e s of
any parties seeking access to the child, programs available to help those parties, pl ans for the child, the stability of any proposed placement, any evi de n c e that the parent

- child relati onship is improper, and an y ex cuses for the parent’s c onduct. H o lley v. Adams , 5 44 S.W.2d 367, 371

– 72 (Tex. 1976) ; see also In re A.C ., 560 S.W.3d at 631 ; S.B ., 654 S.W.3d at 255 . The pa rty see ki ng
term ination has the burde n of establishing that terminati on is in the child’s best inte rest. See In re J.F.C., 96 S.W.3 d 256, 266 (Tex. 2 002)

. The set of factors is not exhaustive ; although one factor is not ne cessari ly dispositive, in some i nstance s evidence of a sing le factor m ay suffice to support the best

- interest finding. See Hol ley , 544 S.W.2d at 371

– 72 ; s ee also I n re C.H ., 89 S.W. 3d at 27 ; S.B. , 654 S.W.3d at 255

. Ultimately, t he Holley factors focus on the child’s best interest, not th e parent’s. In re C .L.C ., 1 19 S.W.3d 382, 399 (Tex. App.

— Tyle r 2003, no pet.)

.13

Evi denc e proving one or more statut ory ground s fo r termination also can be proba tive evidence that termination is in the bes t interest o f the child. In re C.H ., 89 S.W .3d at 28

.

Father argues that th e r e is little or n o evidence relevant as to each factor and th at therefore there is not clear and convinc i ng evidence that termination was in the children ’ s best interest

. But the Holley factors are not exhaustive , and “ [t]he absence of evidence about som e of the se considerations would not preclude a fact finder from reasonably forming a strong conviction or belief that termination is in the chil d ’ s best interest, particu larly if t he evidence were undisputed that the parental relations hip endangered the saf ety of t he child.” I

d. at 27

. Furthermore, the r ecord before us belies Father ’s argument. Although the ch ildren have not expressed their desires, the record demonstrat es that Fa ther has spent minimal time with the children with in the last two years and that Fa ther has not had anything to do with the ch ildren

“ [r]ea lly for most of their lives. ” See J. M. v. Tex as Dep ’ t of Fam

. & Protective Serv s. , No. 03

- 22

- 00187

- CV, 202 2 WL 71636 37, at *14 (Tex. A pp.

— Austin Oct. 13, 2022, no pet.) (mem. op.) ( “ When chil dren are too young to express their desires, the fa ctfinder may consider evidence that the children hav e b o nded with a foster family, are well

- cared for by them, and have spent mini mal time with a parent. ”)

. In contrast to their relationship with Father , te stimony at the hearing demonstra ted that the children ar e doing well in the ir current foster pl acements, have
regu lar visits with each other, and are “ very loved and cared for

. ” Father was also convicted of assault c ausing bodily injury

- family violence an d was incarcerated for part of t he underlying terminati on proceeding

. S ee J.G

. , 592 S.W.3d at 525 (“[A] trier of fact may measure a parent ’ s future conduct by his past cond uct and determine whether termination of parental rights is in the child ’ s best int erest.” (quoting In re B.R ., 456 S.W.3d 612, 616 (Tex. A pp.

— San Antonio 20 15, no pet.) )). And the recor d con tains evidence of Father ’s past drug usage , his repeated failures to14

submit to drug testing during th e termination procee ding, and the Department ’s ongoing

concerns about Father ’s “pattern of criminal b ehavior, domestic violence, and ongoing drug use ” that endanger the children

. S ee C. C. v. Te x as Dep ’ t of Fam

. & Protective Serv s. , 653 S.W.3d 204, 218 (Tex. App.

— Austin 2022, n o pet.) (explaining that parent ’s history of substance a buse

e vidence s en danger ment because it “e xposes the child to the possibi l ity that the parent may be impaired or imprisoned ” (quoting D.H. , 652 S.W.3d at 60 ) )

.

Ultimat ely, “ i t is well settled that s tability and permanence are paramount considerations in e valuating the n eeds of a child.” S.B. , 6 54 S.W.3d at 255

. Although Fathe r contends that he was unable to complete services be cause of the protective order, the record shows Father failed to engage in services even when those services would not have run a foul of the pro tect ive order

— such as complying with recommendations from a psychological evaluation or attending almost all drug tests

–– or after the protective order had expired

. See In re W.E. C. , 110 S.W.3d 231, 245 (Tex. Ap p.

— Fort Worth 2003, no pet.) ( finding termina tion in child ’s best interest because of , among other thing s , parent ’s failure “to motivate [ the mself ] to seek out available resources needed by [child ren ] now or in the future ”). Fathe r also failed to complete either individual counseling o r a batterer ’ s interve ntion course a s part of his service plan.
Weaver al s o testified that Father did not contact her or return her calls af ter his release , and she therefore did not have any address for his where abouts since his in carceration

. Similarly , Father previou sly to ld Weaver he w as self

- employed a s an electrici an, bu t he never provided any documentation or pay stubs. The only testimony about Father ’ s potenti al pl ans regarding the children was from Weaver, stating “ I don ’ t think he has one outsi de of his mom ra ising the kids and h im visit ing them there. ” S e e C. C. , 65 3 S.W.3d at 219 (stating parent ’ s missed vis itations, therapy appoi ntments, and drug t ests indicate their “ unpredictability may e xtend to any contact15

[t he parent] would maintain with [child ren ] if [ they] were allowed t o retain [their] parental rights ” ). I n contrast, the Department described the success of the childr en ’ s current foster placeme nts and testified about the goals to seek a joint placement for both children. And Weaver
te stified that ter minati on was in the best interest of the children des pite t he lack of a current permanent p lacement because of the children ’ s need for “ stability and consistency , ” to form secure attachments and trust their car egivers, and “ to just be kids who get to be to ddlers

. ” S e e E. G. v . Tex as Dep ’ t of Fam

. & Protective Ser v s. , No. 03

- 22

- 00469

- CV, 2022 WL 17970222,
at *11 (Tex. App.

— Austin Dec. 28, 2 022, no pet.) (mem. op) (comparing stability and
perman ence of De partment ’ s and parent ’ s plans fo r child )

.

Reviewi ng the entire record, the tria l cour t could have reasonably beli e ved that termination was in the children ’ s best interest. See In re C.H. , 89 S. W.3d at 27

. Moreover, there is not any disputed evidence that is so si gnificant as to prevent t he trial cou rt from forming that f irm conviction

. In re A.C ., 560 S.W. 3d at 63 0

. We conclude that this evidence is factually sufficient to support the trial court ’ s finding that termination of Fat her ’ s parental rights was in the best interest of the children

. Se e E. G

. , 2022 WL 179702 22, at *11

. W e overrule Father ’ s final issue.

C O NCLUSION

Havin g concluded there was sufficient evidence sup porting the t rial court ’ s termin a ti on under s ubs e cti o n (E) a n d its b est interest fi nding, we affirm the trial court ’ s fin al dec r ee terminati ng Father ’ s par ental rights to the c hi ldren

.16 __________ ________________________________ Darlene Byrne , Chief J ustice Before C hief Justice Byrne, Ju stices Tria na and Theofanis Aff irm ed Filed: June 23 , 2023