## In the Court of Appeals Second Appellate Dis trict of Texas at For t W orth

___________________________ No. 02

- 23

- 00131

- CV

___________________________

On Appeal from the 231st District Court Tarrant County, Texas Trial Court No. 231

- 719029

- 22 Before Birdwell, Wallach, and Walker, JJ. Memorand um Opinion by Justice Bird well



### I N THE 

### I NTEREST OF 

### B.F., A 

### C HILD2 MEMORANDUM OPINION Appellant, B.F
. ’ s al leg ed father , 1 challenge s the trial court ’ s order terminating his parental rights to B.F. In three issues, Appellant argues (1) that the evidence was insufficient to support termination because the trial court allowed inadmissible he ar say testimony to prov e t hat Appellant was the father of B.F. ; (2) that the evidence was ins ufficient to sup port the con duct grounds for termination under Family Code Subsections 161.001(b)(1 )(D), (E) , ( F ) , and ( M ) 2 ; a nd (3) that the tria l court err ed by admitting evidence

— over Appellant ’ s objections

— of two of Appellant ’ s criminal convictions , in violation of Rule 403, see Tex. R. Evid. 403
. In response, the Te x as De partment of Family and Protective Services (T DFPS)
conte nds (1) th at Appellant ’ s admission of pa ternity in his request for counsel established his pa ternity “ long before ” the complained

- of evidence was admitted, and i f Appellan t withdrew that admissi o n, the eviden ce would support summary terminati on; (2) that Appellant h a s waived any complaint about the sufficiency of the

1 The trial court also terminated the pa rent

– child relationship bet wee n B.F. and his mo ther (Mother), but she did not ap peal
. 2 T h e trial cour t found grounds under Sub s e c tions 161.001(b)(1)(D), (E) , and (N). However, Appellant challenge s the su fficiency of the evidence as to gro un ds ( D) , (E) , (F) , and (M), and the argument section of his brief addre sses on ly grounds ( D) and ( E)
. The t rial court also terminated Appellant ’ s rights under Family Code S ection 161.002 (b) , which is a pplicable t o a lleged fathers. However , Appellant d oes not challenge the paternity

- related grounds of the trial court ’ s termination or der
. See T e x. Fam. C ode Ann. § 161.002 (b)(1) , (3)
. Cont extually, Appel lant appears to be trying to avoid the collateral effects of the Se ction 161.001(b)(1)(D) and ( E) find ings. See In re N.G. , 577 S.W.3d 23 0 , 23 4 (Tex. 2019).3 evidence because he does not challenge the trial court ’ s finding under Subsection 161.001(b)(1)(N ) or its best

- inter est finding und e r Subsection 161.001( b)(2) ; and (3) that any da nge r of un fair prejudice st emming f rom the admission of Appellant ’ s criminal convictions was minimal or otherwise harmless. Because we conclude that any error in admitting the complained

- of hearsay testimony was harm less, that the evidence was suff icient t o support the te rmination of Appellant ’ s parental rights, and that the t rial c ourt did not err in admitting the complained

- of exhibits, w e affirm the trial court ’ s ord er terminating Appellant ’ s par e ntal rights to B. F
. I. Background TDFPS became inv olved wi th B.F. ’ s fam i ly when, on Ap ril 29, 2022, Mother tested positive for amphetamines and opiates upon be ing admitted for delivery. Mother admitted to using heroin and co caine during the entire pregnancy, and B.F. was born with m e thamphetamines , amphetamines, and o p ia tes in his s ystem. B.F. began going through withdrawals when he was only a few hours ol d , and he stayed in the hospital for several weeks
. TDFPS investigator Ash l ey Hudgins inter viewed Mother at the hospital. Mot her admitted that she ha d used hero in the day before g iving birth to B.F., t h at she used h eroin multiple times a day, and that she used methamphetamines about once a day
. She told Hudgins that she had known she was pregnant . Mother al so told Hudgins that she had been living with Appellant

— w ho m Mother identified as B.F. ’ s4 fath er
— p rior to giving birth, that she and Appellant did not have a permanent residence , and that she and Ap pellant ha d been staying wherever they could find a place. Whe n a sked about Appel lant ’ s drug use, Mother s ai d that h e ha d last use d drugs two mo nths before B.F. ’ s birth
. After Mother was dischar ged from the hos pital , Hu dgins had d i fficu lty contacting her, and she was unable to find App el lant. When Hu dgins finally found Mother, she was in jail. Mother disclosed that she h ad continued using he roin after giving birth to B.F. Mother ’ s ongoing drug use concern ed Hu d gins because Mother had not been trying to establi sh a stable environment fo r B.F
. B.F. was finally discharged from the hospital in June 2022 , but he had nowhere
t o go. TDFPS so ught removal and placement for B.F. in foster care fo r seve ral

reason s: Mother and Appellant had not made the mselves available to TDFPS , Mother

a nd Appellant could not establish a safe residence , TDFPS was unable to place B.F. with a family m e mber or close family friend , and there were still concerns about M other ’ s and Appellant ’ s ongoing drug use
. After B.F. ’ s removal, a n OCO K 3 pe rmanency specialist , Ashley Tower, attempted to provide case mana gement services for B.F. ’ s family. When Tower fir s t met with Mother on August 19, 2022, Tower observed that Mother appeared paranoid, ski ttish, and nervous , which le d Tower to bel ieve that Mother was using

3 Our C ommuni ty Our Kid s (OCOK ) a cts as TDFPS ’ s agent in pro viding case mana gemen t se rvices for children remove d from their par ents ’ care.5 drugs
. Mother admitted that she was still using heroin
. T ower was unable to con tact Appellant
. To we r nex t met with Mother on January 27, 2023, which was also th e first and only time she met with Appe lla nt. Mother and Appellant had been staying at a motel and were seen carrying their clothing in a push stro ller and a backpack
. When Tower asked Mother and Appellant how they were surviving daily and obtaining food and sh elt er, they s tat ed that they pan handle d on the corn er. When asked about illegal drug use, Mother denied using methamphetamines or heroin, and Appellant admitte d to

us ing only marijuana. This interaction c oncerned Tower for two reasons: first, Mother and Appel lan t were unable to provide a safe and sober envi ronment for B.F., and second, they were not taking any steps to become better parents. Despit e her efforts to reach Mother and Appellant , T ower was unable to set up a meeting with them after
t he January 27, 20 23 meeting. At the termination trial, at which n either Mother nor Appellant appeared, Tower testi f ied that Mother and Appell ant had not demonstrated that they cou ld provide B. F. wit h a s afe and stab le environment. Specifically, Mother and Appellant were homeless, and they had no t a ddressed any of TDFPS ’ s concerns to mitigate the risk o f abuse, negle ct, or injury of B. F
. Tower also testi fied that , although she had
attem pted to engage Moth e r and Appellant in a service plan and encouraged them to visit with B.F. , they were not re sponsive to her effort s . With re spect to A ppellant, he had not visited or see n B.F. since B.F. was in the hospital in June 2022, despi te6 Tower ’ s sending photos of B. F ., offering to set up visits and pay for transportation , sending a service pla n, and encouraging Appell ant to participate in his servi ces. At the time of tri al Appellant had not started any services. Tower opined that it was in B.F. ’ s best interest to ter m inate Appe llant ’ s parental rights because , in addition to his criminal history, drug use, and lack of parenti ng s kills , Appellant had not addressed TDFP S ’ s concerns or shown that he could provide B.F. with a safe and stable environ ment . The trial cou r t f o und that termi nation of the parent

– child relationship between B.F. and App ellant was in B.F. ’ s best inte rest 4 and terminated Ap pe llant ’ s parental rights pursuant to Family Code S u bsections 161.001(b) (1)(D), (E) , and ( N) , and Section 161.002(b)
. See T ex. F a m. Code Ann. §§ 161.001(b)(1)(D), ( E) , (N), 1 6 1 .002( b)(1), (3). In its termination order, th e tr i al court referred to Appellant as B. F
. ’ s “ alleged ” fathe r and found tha t Appellan t did not time ly file an a dmission o f pa ternity or file a counterclaim for pa t ernity and that Appell ant ha d not re gistered with the pa ternity registry under Chapter 160
. Despite havin g refer red to Appellant as B.F. ’ s “ a lleged ” father and de spite its Section 161.00 2(b) findings, the t rial c ourt also treated Appellant as B.F. ’ s prove n father and terminated the parent

– chi ld relationship based on findings o f best interes t, en dangerment , and const ructive abandonment. See id. § 161.001(b)(1)(D), ( E) , ( N) , ( b)(2)
. This appeal followed.

4 Appellant does not challenge the trial court ’ s best

- interest fin ding on appeal.7 II. Hearsay Testimony on Appellant ’ s All eged Pate rnity Appellant argues that the portion of Hudg ins ’ s testimony in which she repeated Mother ’ s stat ements identifying Appellant as the father of B.F. was inadmiss ible hearsay. According to Appellant, th e testimony allowed TDFPS to e stablish that he

was B.F. ’ s f a ther because he had not otherwise ma de an admission of pat ernity
. He

co ntends that w ithout th e complained

- of testimony, t he trial court could not ha ve terminated his p arental rights
. In other words, Appellant argues that a pre requisite to terminating his p arental rights is establishing th at he had parental rights and that without the complained

- of testimony, TDFP S failed to show that he had any pa rental rights to terminate; thus, termination was improper. A. S tandard of Review W e review a trial court ’ s ad m ission of challenged evidence for an abuse of discretion. I n re D.D. , No. 02

- 17

- 00368

- CV, 2018 WL 1630708, at *12 (Tex. App.

— Fort Worth Apr. 5, 2018, no pet.) (per curiam ) (mem. o p . ) (citing Gh arda USA, Inc. v. Control Sols. , Inc. , 464 S.W.3d 338, 347 (Te x . 2015)) . Indeed, w hether to admi t or exclude ev idence is within th e t rial court ’ s sole discretion. Fleming v. Wilson , 610 S.W.3d 18, 21 (Tex. 2020). A trial court abuses its discretion if it acts without reference to any guiding rules or principles

— that i s, if it acts arbitra rily or

unre asona bly. D.D. , 2018 WL 1630708, at *12 (c iting Low v. Henry , 2 21 S.W.3d 609 , 6 1 4 (Tex. 2007) ). We must uphold the trial court ’ s evidentiary ruling if the record sh ows any legitimate basis for the ruling. See Owens

- Corning Fiberglas Co rp. v. Malone , 9 728 S.W.2d 35, 43 (Tex. 1998). An appellate court cannot conclude tha t a trial cou rt abused its discretion merely because the appell ate court would have rul ed differently in the same circumstances. E.I. du Pont de Nemours & Co. v . Robinson , 923 S. W.2d 549, 558 (Tex. 1995); see also Low , 221 S.W.3d at 620
. We will not rev ers e a trial cou rt’s judgment because of an erroneous evidentiary

r uling unle ss t h e ruling probably, though not necessarily, caused the rendition of an improper j u dgme nt. Gunn v. McCoy , 554 S .W.3d 645, 668 (Tex. 20 18) ; U

- Haul Int’ l, Inc. v. Waldrip , 380 S. W.3 d 118, 136 (T ex. 2012)
. We e xamine the entire record in determi n ing harm. Gunn , 554 S.W.3d at 668 ; U

- Haul Int ’ l , Inc. , 380 S.W.3d a t 136. The complaining party must usually sho w that t he w hole case turned on the evidence at issue. Interstate Northborough P ’ ship v. Stat e , 66 S.W.3 d 213, 220 (Tex. 2001) (op. on

r eh ’ g)
. Thus, a n errone ous admission of evidence is harmless if i t i s merely

cu mulativ e. In re K.R.G. , N o . 02

- 12

- 00384

- CV, 2013 W L 3179498, at *3 (Tex. App.

— Fort Worth Mar. 21, 2013, pet s . denied ) (m em. op.) (citing In re C.R. , 263 S. W.3d 368, 370

– 71 (Tex. Ap p.
— Dallas 2008, no pet .))
. B . Analy sis Without having to reach a determination of wheth er th e trial c ourt erred by admitti ng the complained

- of testimony, we conclude that any error in admitting the testimony was harmless. First, the termination of Appel lan t ’ s parental rights di d not turn on Hudgins ’ s testi mony repeating Mother ’ s statement that Appellant was B.F. ’ s father. Appellant9 had already admitted that he was B.F. ’ s father by filing with the trial co urt a “ Reques t for C o unsel /Affidavit of Indigence ” in which he declared, “ I , [Appellant], am a parent of the child [] n amed above ” and signed his name as “ R e spond ent Parent. ” Second, Appellant ’ s rights (parental or otherwise) would have been terminated with or without the admission of the co mplained

- of testim ony because t he trial court double

- dipp ed its terminati on or der by terminating under both Se ction 1 61.001(b) ( conduct grounds ) and Section 161.002(b) ( paternity

- related grounds )
. 5 1. Termination under Sec t i on 161.002(b) Even if the trial court had exclud ed the complained

- of testimony, Appellant ’ s rights would have been terminated pursuant t o Section 1 61.002(b)
. Under Section 161.00 2 (b)(1), “ [t]he rights of an alleged father may be
term inat ed if [,]
. . . af ter bei ng serv ed with ci tatio n , he does not re spond by t imely fi ling an adm i ss io n of paternity or a counterclaim for paternity
. ” Tex. Fam. Code Ann. § 1 61.002(b)( 1). However, if the all e ged f ather file s an admission of paternity, TDFPS
must then prove o ne of the grounds for termi natio n under Section 161.001(b)( 1 ) before his paren tal r ights can be terminated
. In re J. L.A
. , No. 04

- 13

- 00857

- CV, 2014 WL 1 8 310 97 , at *2 (Tex. App.

— San Antonio M ay 7, 2 014, no pet.) (mem . op.) ; Toliver v. Tex. Dep ’t of Fam . & Pr ote ctive S ervs. , 217 S.W.3d 85, 1 0 4 (Tex. App.

— Houston [1st Dist.] 2006, no pet.) ; In re K.W. , 138 S.W.3d 420, 4 30 (Tex. App.

— Fort Worth 2004,

5 The questi on of whether we agree with this tact i c is not an iss ue currently befor e t his court.10 pet. d en ied ) ; Phillips v. Texas Dep ’ t of Protecti v e & Regul. Servs. , 25 S.W.3d 348, 357 (Tex. App.

— Austin 2000, no pe t.)
. Appel lant ostensibly argues that the comp lained

- of tes timon y was the only

ev idence of his paternity, and by establishing his pa ternity, the tr ial court was able to terminate his parental ri ghts under Section 161.001(b)
. But this argu men t does not
account for th e tri al court ’ s findings pursuant to Section 161. 002( b) , which provides an independe nt basi s for termination and which Appellant does n ot cha llenge on appeal
. 6 By Appellant ’ s hypothetical , “ [i]f the hearsay statements were not allowed

6 In appeals challengin g Section 161.002(b) findings , we have held that when an alleged father file d a request for counsel s wearing that he was “ a parent of the child/ren named abov e ”

— as Appellant did here

— and his a ppointed trial counsel appea r ed o n hi s behal f , as counsel did he r e, the trial court erred b y terminating the parent

– child relatio nship un der Section 161.002(b)
. See In re Y.W. , No. 02

- 22

- 00334

- CV, 2022 WL 17841830, at *4 (Tex. App.

— Fort Worth Dec. 22, 202 2 , no pe t. ) (mem. op.) ; In re K.E. S. , No. 02

- 11

- 004 20

- C V , 2012 WL 4121127, at *3 (Tex . App.

— Fort Worth Sept. 20, 2012, pet. denied ) (mem. op. on reh ’ g)
. But w hen , as here, the alleged fath er does not challenge a termina tion order based on Section 161.002(b ) fi nding s , our holding depends on the particula r facts of the c ase. W e ha v e declin ed to affirm a termination order based on unc hallenged Section 161.002(b) findings when the alleged father signe d a request for counse l sw ea ring to be the child ’ s parent, a ppeared a t the termination trial, and uneq uivocally testified th at he was the child ’ s fa ther and that he did not want his rights to be terminated. See In re A.R.F , No. 02

- 13

- 00086

- CV, 2013 WL 3874769, at *13 (Tex. App.

— For t Worth July 25, 2013, no pet.) (m em. op.); In re D.B. , No. 02

- 07

- 00 428

- CV , 2008 WL 2553343, at *7 (Tex. App.

— Fort Wort h J u ne 26, 2008, no pet.) (mem. op .). Based on those facts and in the interest of justice, we proceeded to analyze the sufficiency of the evidence to support the trial co u rt ’ s Sect i on 1 61.001(b) findings. We have affirmed a termination order on unchalleng e d S ection 161.002(b) findings when , as here, the alleged father did not appear at the termination trial, did not unequivocally testif y tha t he was the chi ld ’ s father and t hat he di d not want his11 into evidenc e, the tri al court could not have found that Appe llant was the father of [B.F.], ” and the termination of his parent

– child rela ti onship with B.F. w ould fall squarely under Sec tion 161.002(b). Appellant the refore cannot show that the termination of his parental rights turned on the complai ned

- of t estimony or that the complained

- of testimony caused the rendition of the trial court ’ s termination order. 2. T ermination under Subsec tion 161.001(b)(1) (E) If the hearsay testimony was properly allo wed into evidence

— and assuming that the testimony alone sufficiently established Appellant ’ s paternity , as Appellant suggests

— then the trial court properly terminat ed Appellant ’ s parental rights pursuant to Sect ion 161.00 1(b)
. i . Stan dar d of Review For a tri al court to terminate a parent

– child relati ons hip , TDFP S must prove two elemen ts by clear an d convincing evidence: ( 1) that the par ent ’ s actions satisfy

o ne grou nd listed in Family Code S ection 161.001(b)(1); and ( 2) t hat t ermi nati on is in the ch ild ’ s b est in terest. Tex. Fam. Code Ann. § 161.001(b); I n re Z.N. , 602 S.W.3d 541, 545 ( Tex. 2020)
. Ev idence is clear and con vincing if it “ w ill produce in the mind rights to be termin ated , and did not mak e any effort to establ ish his interest in a relationship with t he child before the termination of his parental rights
. See In re D.T. , No. 02

- 13

- 00331

- C V, 20 14 WL 261408, at *2

– 3 (Tex. App.

— Fort Wort h J an. 23, 2014, no pet.) ( mem. op .)
. Here, n ot only di d Appellant n o t appear at his termination trial or make any effor t to e stablish that he wanted a relationship with B.F. , he also now claims on appeal that he m ade no admission of paternity an d that the ev idence es tablishing his paterni ty

— the complained

- of test imony, according t o A ppellant

— was wrongly a dmitted
. Based on these facts, w e would end our analysis here if it were independ ent from our harm analysis
.12 of the tr ier of fact a firm belief or conviction as to the trut h o f the alle gat ions sought to be e sta bli shed. ” Tex. Fam. Code Ann. § 101.007; Z.N. , 60 2 S.W.3d at 545
. To determin e whether the evidence is legally suf ficient in paren tal

- termination cases, we look at all the evidence in the light most favorable to the c hal l enged fin din g to determi ne whet her a reasonable factfinder could form a firm bel ief or conviction that the findi ng is true. Z. N. , 602 S.W.3d at 545
. The factfinder m ay draw inferences, but th ey m u st be reasonable and logical. Id. We assume that the fac tfi n der s ettl ed any evidenti ary con fli cts in favor of its finding if a reasonable fa ctfinder could have done

so. Id. We disregard all evidence that a rea sonable factfind er could have disbeliev ed, and we consider undisputed evidence even if it is contrary t o t h e fin ding
. I d. ; In re J. F.C. , 9 6 S .W. 3d 256, 266 (Tex. 2002). That is, we consid er evidence favorable to the fin ding if a reas onable factfinder could , and we disrega rd contrary evidence un les s a
r ea sonable factfinder could not. In re J.P.B. , 180 S.W.3d 57 0 , 573 (Te x. 2005)
. The f

actfind er is the sole judge of the witnesses ’ credibilit y and demeanor. In re J.O.A. , 2 83 S.W.3d 336, 346 (Tex. 2009)
. We m ust perform “ an exacting review of the ent ire r ec ord ” in determining the factual sufficiency of the evi den c e sup port ing the termina tion of a par ent

– child relati onship. In re A.B. , 437 S.W .3d 498, 500 (Tex. 2014). Nevert heless, we giv e due deference to the factfinder ’ s fin ding s and do not suppla nt them wi th our own. In re H. R.M. , 209 S.W.3d 105, 108 (Tex. 20 06)
. Here , w e re view the who le reco rd to decide whether a factfinder could reasonabl y form a firm conviction or beli ef that TDFPS13 proved the specif ic gro unds for termina tion under Family Co de S ection 16 1.001(b)(1) (E)
. In re C. H. , 89 S.W.3 d 17, 2 8 (Tex. 2002)
. If the factfinder reasonably

co uld form such a firm conviction or belief, then t he evidence is factuall y sufficient. Id
. at 18

– 19
. ii . Ap plicable Law Under Subsecti on ( E) , the tr ial cou rt may term i nat e a pa rent ’ s rights if i t f i nds by c le ar and co n vincin g evidenc e that th e parent has “ eng age d in conduct or knowingly placed the child with persons who engaged in conduct which endangers the phys ical or emotional well

- be ing of the chi ld. ” T ex . F am. Cod e Ann
. § 161.001 (b) (1) (E )
. “‘[E]ndanger’ mean s to expo se t o loss or i n jury” or “to jeo pard ize .” In re J.F
. - G. , 627 S.W.3d 304, 312 (Tex. 20 21) (quoting Tex. Dep ’ t of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987) ). T he releva nt inquiry is whe th e r e v idence e xis ts that the endangerment of the child ’ s phy s ical well

- b eing was t he dir ect res ult of the parent ’ s condu ct , incl udi ng acts,

o m i s sions, or fail ures to act. See id. ; see al so Tex. Fam. Cod e Ann. § 161.001(b)(1) (E)
. Terminati on under Su b se c ti o n ( E ) must b e bas ed on more t han a single act or omission; a volunta ry , deliber a te, an d conscio u s cou rse of conduct by t h e par ent is requir e d
. In re J.T.G. , 121 S.W.3d 117, 125 (Tex. App.

— For t Worth 200 3, no pet.)
. The end angeri ng conduct need no t be di rected a t the child, nor must the child actually

su ffer inju ry. J.F.

- G. , 62 7 S.W.3d at 3 12 ( quoting Boy d , 727 S.W.2d at 533). The specific dan ger to a c h i l d ’ s wel l

- bei ng ma y b e inferre d f r om parental mis conduct14 standin g al one . See In re R .W. , 129 S. W.3d 73 2, 73 9 ( Tex. App.

— Fort Worth 2004 , p et . denied) ( “ A s a gener al r ule, conduc t that subjec ts a c h ild to a li fe of unc e rtaint y and inst a b ility en dan gers th e ph y s ical an d emotiona l w ell

- being of a chi ld. ” ). Ille g a l drug use and i ts ef fect on t he pare nt ’ s life a nd his ability to parent may establ ish an en d anger ing cours e of conduct. J .O.A. , 283 S.W.3d at 345 ; I n re M.E.

- M.N. , 342 S.W.3d 254, 26 3 (Te x. App.

— Fo rt Worth 2011, pet. denied ) ; R.W. , 129 S .W.3d at 739 ; J.T.G. , 121 S.W.3d at 125

– 26
. And “ [a] parent ’ s decis ion t o engage in illegal drug use durin g the pendency of a termination suit, when the parent is at risk of losing a child, suppor ts a fin ding that the parent engaged in conduct th at enda ngered the child ’ s physical or emotional well

- being. ” In re J.A.G. , No . 02

- 10

- 00002

- CV, 2010 WL 4539442, at *1 (Tex. App.

— Fort Worth Nov. 10, 2010, no pet.) (mem. op.) ; see In re I.L. , No. 02

- 18

- 0 0 206

- CV, 2018 WL 5668813, at *5 ( Tex. App.

— Fo r t Worth Nov. 1, 20 18, n o pet .) (mem. op.)
. Addi tionally, e vidence of criminal conduct ,
c o nvictio ns, and imprisonment prior to the birth of a child will support a fin ding that a parent engaged in a cour se of conduct that en dangered the child ’ s well

- being
. I.L. , 2018 WL 5668813, at *5 ; In r e A.N .D. , No. 02

- 12

- 00394

- C V, 2013 W L 36 2753, at * 2 (Te x . App.

— F ort Worth Jan. 31, 2013, no pet.) (mem. o p.) ; In re A.J.M. , 375 S.W.3d 599, 606 (Tex. App.

— Fort Worth 2012 , pet. denied ) (op . on reh ’ g) (en banc)
. iii . Analysis T h e r ecord i ndicates that Appellant knew of Mother ’ s drug use during her pregnanc y wit h B.F. and failed to attempt to prot ect B.F. from the effects of that drug15 use. See In re J.W. , 645 S.W.3d 726, 749

– 50 (Tex. 2022) ( c iting In re H.M.J. , No. 06

- 18

- 00009

- CV, 20 18 WL 3 028980, at *5 ( Tex. App.

— Te xarkana June 19, 2018, no pet.) (mem. op.) (aff i rming Subsection (E) finding where the father had been aware of the mother ’ s drug use during pregnancy and the effects it could have on the child ’ s well

being, and he neither reported her t o th e Department or the police nor made an effort
to ensu re that s h e received substance

- abuse treatment )). B.F. was hospitalized immediately a fter his birth, and he was removed and placed with an unrelated f oster family upon his discharge from the hospital
. Se e id. at 749 (similar facts). Mother admitte d to using heroin a nd cocaine during her pregnancy with B.F., including the day before she gave birth. On the date of B.F. ’ s birth, Mother tested positive for amp heta mines and opiates . She disclosed that she h ad been living with Appellant prior to giving b irth, that she and Appel lant did not have a permanent re sidence , an d that they had been staying wherever they could find a place. After B.F. ’ s removal , permane ncy specialist T ower learned that Mother and Appe llan t still lived together in a motel and panhan dled for their inc o me . And Tower ’ s only means of reaching Appellant was through Mother. There is also evidence of Appellant ’ s own drug use , includin g marijuana, methamphetamine, and heroin
. A pproxi m ate ly ten months after removal, Appellant admit ted to T ower that he was us i ng marijuana
. At trial , Hudgins testified that Mother had disclosed to he r that Appellant ’ s las t drug use had been two months before B.F.16 was born. 7 T he trial cou rt admitted

— over Appellant ’s objection

— two e xhibits showing that on May 13, 2022 , Appellant w a s convicted in two cases for possession of a controlled substance, namely, m ethampheta mine and heroin
. Th ose offenses

occurre d F ebruary 22, 20 22

— approxi mately two months before B.F. was born on April 29, 2022
. Appellant served 90 days in jail for these co n victions. In addition to these two drug convictions , the record demonstrates that Appellant ha d a history of criminal conduct. In Dec ember 2020, Appellant was charged with and later convicted for evading arrest with a previous conviction
. In March 2019, Appellant wa s charged with and later convic ted for a terroristic threat of a family member and s entenced to 1 20 days ’ confinement. In May 2 0 14, Appellant

was charged with and later convicted for deadly conduct /d ischarge of a firearm and bail jumping/failu r e to appear . For those offenses, he was sentenced to six years ’ and two years ’ confinement , re spectively
. Appel lant ’ s cri minal hist ory include s fifteen convictions dating ba c k to December 2000
. S t ability and perman ence are paramount in the u pbringing of c h ildren. M.E.

- M.N. , 342 S.W.3d at 26 3
. The record indicates that Appellant was una ble to establ ish that he had obtai n ed or could obtain a safe and stable home or gen e ral living environment for B.F. And the record show s that Appella nt c ould not establish pr o of of employment.

7 Appellant objected to this testim o ny as hea r sa y , which the trial court ove rruled. On appeal, howev er, he does n ot challenge th is ruling.17 Vie wing all the ev idence in the light most favorable to the tr ial co u rt ’ s jud gment an d recogni zi ng tha t the fac t fi nder is the sole arbiter of the wit ness es ’ cred ib ili ty and demeanor, we hold th at th er e is s ome eviden ce o f en dang ering co n duct on which a re asonable fact finde r c oul d have formed a f irm belie f o r c onvict i o n that A ppellant had engaged in c ond u ct that endanger e d B.F. ’ s physica l or emotion a l w ell

b e ing. See Tex. Fam. Code Ann. § 16 1.00 1(b )( 1) (E )
. Accordingly, we overrule Appella n t ’ s issue regarding the termination of h is parental rights to B.F. under Subse c tion (E)
. Because a finding of only one ground alleg ed under Section 161
. 001(b)(1) is sufficient to s upport termination , In re A.V. , 113 S.W.3 d 35 5, 362 (Tex. 2003) , we n eed no t re ach the issue of termination under Su bse ction s 161.001(b)(1) (D) and (N )
. S ee In re A.N. , No. 02

- 22

- 00036

- CV, 2022 WL 2071966, at *2 (Tex. App

— Fort Worth June 9, 2022, pet. denied) ( mem. op.) ( “ Addressing both (D) and (E) is not necessa ry , though, unless ne ither withstands appellate review. A ffirming one renders the other moot. ” ). 3 . Conclusion Any error in admitting the hearsay testi mony on Appellant ’ s alleged paternity was harmles s because (1) the termination of Appellant ’ s parental rights did n ot tur n
o n the testimony and (2) Appellant ’ s rights presumably would have been terminate d with or without the te stimony under either Se ction 161.001(b) or Section 161.002(b). And the evidenc e was sufficient to support the trial court ’ s f indings of endangerment p urs uant to conduct ground (E) . Ac cor dingly, we overrule Appellant ’ s first two is su es.18 II I. Evidence of Appellant ’ s Criminal Conviction s In his final issue, Appellant argues that the t rial court erred by admitting evidence of two of Appellant ’ s drug convic tio ns . He contends that the preju dic ial effect of the se exhibits outwei ghed any pr obative value of the evidence , particularly because M other ’ s d rug use was the reason f or T D FPS ’ s involv ement with the family
. A. Standard of Review and Applicable Law In revi ewi ng Appellant’s challenge to the a dmission of evidence of his criminal convictions, we apply the same standard of review

— abuse of discretion

— as outlined above in Appellant’s first issue. See supra pp. 7

– 8. Evidence is relevant if “it has any tendenc y to ma ke a fact more or less probable than it wo uld be without the evidence ” and if “the fact is of conse quence in determining the action. ” Tex. R. Ev id. 40 1. Re levant evidenc e may be excluded if its probative value is substantially outweighed by the dang er o f “ unfair prejudice,

con fusing the issues, mi sleadin g the jury, undue delay, or needlessly presenting cumulative evidence. ” Tex. R. Evid. 403. Rule 40 3 f avors the admission of relevant evidence and presumes that relevant evidence will be more probative tha n p rejudicial. In re J.B. , No. 02

- 18

- 00034

- CV , 2018 WL 3 289612, at *6 (Tex. App.

— Fort W orth July 5, 2018, no pet.) (mem. op.). B ecause the best interes t of the c hil d must always be the primary cons ideration in a parental

- rights termination case, e vidence r ele vant to the best interest of the child will seldom be excluded under Rule 403. In re B.C. , No. 02

- 15

- 00175

- CV , 2015 WL 6081452, at * 1 (Tex. App.

— Fort W orth Oct. 15,19 2015 , n o pet.) (mem. op.) ; G arza v. Garza , 217 S.W.3d 538, 555 (Tex. App.

— San Antonio 20 06, no pet.) (stat ing that Rule 403 is an extraordinary reme dy to b e used sparingly in parental

- rights termination cases). B . Analysis T he complained

- of exhibits are two M ay 13, 2022 judgment s of conviction for the offense s of possession of a controlled s ubs tance with 90

- d ay sentence s of confinement that began on May 26, 2022. Appellant first argues
— albeit inaccurately

— that the dates of these two offenses preda te the date of B.F. ’ s
co nception and are therefore irrele vant. But the judgment s indicat e that th e date of the offenses was February 19, 2022

— less than two months before B.F. was born , not nin e months
. Appellant also argues th at the probative value o f the complained

- o f exhibits was substantially outweighed by the danger of un f air prejudice , see Tex. R
. Evid. 403, because the trial court had considered evidence of Mother ’ s drug use and B.F. ’ s being “ born on drugs, ” and there was no evidence that Appell ant had been

“ involved at that time. ” We have held that e vidence of a parent ’ s criminal history is r el e vant when

e valua ting that parent ’ s parental abilities. J.B. , 2018 WL 3289612, at *7 (citi ng In re L.M. , No. 02

- 16

- 00 127

- CV, 2016 WL 5957030, at *15 (Tex. App.

— Fort Worth Oc t. 13, 2016, pet. denied) (mem. op.)) ; see In re S.B. , 207 S.W.3d 877, 886 (Tex. Ap p.
— Fort Wort h 2006, no pet.) (noting that par ent ’ s poor judgment may be considered in determining child ’ s best intere st )
. And c ontrary to App ellant ’ s assertion, even criminal20 conduct before the child is born is relevant
. See J.B. , 2018 WL 3289612, at * 7 (c iting Calde ron v. Tex. Dep ’ t of Fam. & Protective Serv s. , No. 03

- 09

- 00257

- CV, 2010 WL 2330372, at *2 n.3 (Tex. App.

— Aus tin June 11, 2010, n o pet.) ( mem. op.)). We conclude that it was within the trial court ’ s discretio n to find that evidence of Appellant ’ s criminal h istory was relevant to the issue s of B. F
. ’ s best interest and

e ndangerment
. See J.F.

- G. , 627 S.W.3d at 315 ; In re S.T. , No. 11

- 1 9

- 00363

- CV , 2020 WL 2610393, at *4 (Tex. App.

— E astland May 18, 2020 , pet. denie d ) ( mem. op.); A.J.M. , 375 S.W.3d at 6 06 ; J .T.G. , 121 S.W.3d at 133
. We also conclude th at the pr obative value of the evidence was not substantially outweighed by the danger of unfair prejudice
. Although evidence of a parent ’ s criminal history may be prej udicial, under these circumstances, it was not un fairly prejudicial
. See Bay Area Healthc are Gr p . , Ltd. v. McShane , 239 S.W.3d 231, 234 (Tex. 2007) ( holding evidence “ is not i na dmissi ble on the sole ground that it is ‘ prejudicial ’ because in our adversari al sy stem, much of a proponent ’ s evid en ce is legi timately intended to wound the opponent ” ) ; In re A.M. , No. 09

- 19

- 00075

- CV , 2019 WL 4064579, at *15 (Tex. A pp.
— Beaumont Aug. 29, 2019, pet. denied) (mem. op.) (s imilar) ; In re J.W. , 113 S.W.3d 605, 612 (Tex. App.

— Dallas 2003, pet. denied ) (simil ar )
. Appella nt has not demonstrated, and the record does no t s how, that the admission of the two judgments of conviction unfairly prejudice d him. See Murray v. Tex. Dep ’ t of Fam. & Prote ctive Ser vs. , 294 S.W.3d 360, 369 (Tex. App
. — Austin 2009, no pet.). Ap pe llant ’ s co nclusory argument that the trial court erred by admitting t he21 evidence is thus insufficient to over come the presumption of inadmissibility under R

ule 403
. We overrule Appella nt ’ s final issue. IV . Conclusion Having overruled a ll of Appellant ’ s is sues , we affirm t he trial cou rt ’ s order terminating his parent al rights to B.F. /s/ Wade Birdwell Wade B irdwell Justice Delivered: August 31, 2023