## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00020

- CV

IN THE INTEREST OF T.K. AND G.K., CHILDREN

On Appeal from the County Court at Law No. 2

Gregg County, Texas Trial Court No. 2021

- 857

- CCL2

Befor e Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Chief Justice Stevens2 

### ME MORANDUM OPINION The Department of Family and Protective Services filed a petition to terminate Father’s parental rights to his six

- year - old daughter, T ara . 1 A fter a be nc h trial, the trial court found that
stat ut or y grounds supported termination of Father’s parental rights because he (1) knowingly placed or allowed Tara to remain in conditions or surroundings that endangered her physical or emotional we ll

- bein g, ( 2 ) eng a g ed in conduct or knowingly placed Tara with p ersons who engaged in conduct that endangered her physical or emotional well

- being, ( 3 ) constructively abandoned Tara , and ( 4 ) failed to comply with the provisions of a court order that speci fically

es ta blishe d the actions necessary for him to obtain Tara ’ s return
. See T EX . F AM . C ODE A NN . § 161.001(b)(1) (D), (E), (N), (O)

. The trial court terminated Father’s parental rights to Tara after finding that doing so was in her best interests

. See T EX . F AM . C O DE A NN . § 161.001(b)(2). 2 On appeal, Father argues that the evidence is legally and factually insufficient to support the trial court’s findings on both the statutory grounds for terminati ng parental rights and the best

- interests f

inding

. Because we f

ind that sufficient evidence supports the trial court’s statutory g round E and best

- interest finding s , we affirm the trial court’s judgment. I. Standard of Review “The natural right existing between parents and their children is of consti tutional dime nsions.” In re E .J.Z. , 547 S.W.3d 339, 343 (Tex. App.

— Texarkana 2018, no pet.) (quoting

1 To protect the child’s identity , we wil l refer to the child and her family members by pseudonym s . See T EX . R. A PP . P. 9.8.
2 Mother retai n ed h er p ar ental rights under the trial co urt’s order

. Charles, the biological father of Tara’s h alf

sibling, Grant, suffered termin ation of his pa rental right s to Grant but is not a part y to this appeal.3

Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to make decisions concerning ‘the care, custody, and control o f their child ren.’” Id. (quo t ing Tro xel v. Granville , 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates fundamental interests, a higher standard of proof

— clear and convincing evidence

— is required at trial.” Id. (quoting In re A.B. , 437 S.W.3d 4 98, 502 ( Tex. 20 14)). “This Court is therefore required to ‘engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights.’” Id. (quoting In re A.B. , 437 S.W. 3d at 500). “[I]nvol u ntary t ermination statutes are strictly construed in favor of the parent.” Id. (alteration in original) (quoting In re S.K.A. , 236 S.W.3d 875, 900 (Tex. App.

— Texarkana 2007, pet. denied) )

. “In order to terminate parental right s, the trial court m u st find, by clea r and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child’s best interest.” Id. (citing T EX . F AM . C ODE A NN . § 161.001; In re E.N.C. , 38 4 S.W.3 d 796 , 798 (T e x. 2012) ). “‘Cl ear and convincing evidence’ is that ‘degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.’” Id. (quoting T EX . F AM . C ODE A NN . § 101.007 ) (citing In re J .O.A. , 283 S.W.3d 336, 344 (Tex. 2009)). “This standard of proof necessarily affects our review of the evidence.” Id. “In our legal sufficiency review, we consider all the evidence in the light most favorable to the finding s to determin e whether the fact

- finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven.” In re L .E.S. , 471 S.W.3d 915, 9204

(Tex. App.

— Texarkana 2015, no pet.) (citing In re J.P.B. , 180 S.W.3d 57 0, 573 (Tex. 2005) ( p er curia m); In re J.L.B. , 349 S.W.3d 836, 846 (Tex. App.

— Texarkana 2011, no pet.)). “We assume the trial court, acting as fact

- finder, r esolved disputed facts in favor of the finding, if a reasonable fact

- finder could do so, and disre garded evide nce that the fact

- finder could have reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re J.P.B. , 18 0 S.W.3d at 573). “In our review of factual sufficiency, we give due consideration to evidence t he tria l

cou rt could have rea sonably found to be clear and convincing.” Id. (citing In re H.R.M. , 209 S.W.3d 105, 109 (Tex. 2006) (per curiam)). “We conside r only that evidence the fact

- finder reasonably could have found to be clear and convincing and de termine ‘ “ wh ether th e evidenc e is such that a fact[

- ]finder could reasonably form a firm belief or conviction about the truth of the

. . . allegations. ” ’” Id. (alteration in original) (quoting In re H.R.M. , 209 S.W.3d at 108). “If, in light of the entire r ecord , the dispute d evidenc e that a reasonable fact[

- ]finder could not have credited in favor of the finding is so significant that a fact[

- ]finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” Id. (quot ing In r e J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002) ) . “‘[I]n making this determination,’ we must undertake

‘ “ an exacting review of the entire record with a healthy regard for the constitutional interests at stake. ” ’ ” Id. (alteration in original) (quot i ng In re A. B. , 437 S.W .3d 498, 503 (Tex. 2014)). “We also recognize that the trial court, as the fact

- finder, is the sole arbiter of a witness’ demeanor and credibility, and it may believe all, part, or none of a witness’ testimony.” In re A.M. , No. 06

-5

1 8

- 000 12

- CV, 2 0 18 WL 30 77784, at *3 (Tex. App.

— Texarkana June 22, 2018, pet. denied) (mem. op.) (citing In re H.R.M. , 209 S.W.3d at 109). “Despite the profoun d constitutional interests at stake in a proceeding to terminate parental rights, ‘“the rights of n atura l pare nt s are not absolute; protection of the child is paramount.”’” In re L.E.S. , 471 S.W.3d at 920 (quoting In re A.V. , 113 S.W.3d 355, 361 (Tex. 200 3)). “A child’s emotional and physical interests must not be sacrificed merely to preserve parent a l rig hts.” I

d

. (quoti ng In re C.A.J. , 459 S.W.3d 175, 179 (Tex. App.

— Texarkana 2015, no pet.)). II. Sufficient Evidence Support s the Trial Court’s Statutory Ground E Finding Father asserts that the evidence is legally and factually insufficient to suppor t t h e trial

cou rt’ s findin g s under grounds D, E, N , and O

. “Only one predicate finding under Section 161.001[b](1) is necessary to support a judgmen t of termination when there is also a finding that termination is in the child’s best interest.” Id. at 92 3 ( q uoting In r e O .R.F. , 4 1 7 S.W.3d 24, 37 (Tex. App.

— Texarkana 2013, pet. denied)). “Even so, when the trial court[’]s findings under grounds D or E are challenged on appeal, due process demands that we review the evidence supporting the findings under a t l e ast one of tho se groun d s when they are challenged on appeal.” In re S.A.W. , No. 06

- 21

- 00116

- CV, 2022 WL 1193667, at *3 (Tex. App.

— Texarkana Apr. 22, 2022, pet. denied) (mem. op.) (citing In re N.G. , 577 S.W.3d 230, 237 (Tex. 2019) (per curiam) (“We ho ld t hat due pro ces s and du e course of law requirements mandate that an appellate court detail its analysis for an appeal of termination of parental r ights under Section 161.001(b)(1)(D) or (E) of the Family Code.”) ) . “This is because termination of parent al r ights under th e se6

groun ds may implicate the parent’s parental rights to other children.” Id. (citing In re N.G. , 577 S.W.3d at 234; T EX . F AM . C OD E A NN . § 161.001(b)(1)(M) (“providing as a ground for termination of parental rights that the parent ‘had his or her paren t

- c hild rel ationship terminated with respect to another child based on a finding that the parent’s conduct was in violation of Paragra ph (D) or (E) ’”). A. Statutory Ground E Requirements Under g round E, parental rights may be termina ted “if the court finds by clear a n d convincing evidence . . . that the parent has . . . 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). “‘[E]ndanger’ means to expose to loss or in jury; to j eopar dize.” T

ex. Dep’t of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987); In re L.E.S. , 471 S.W.3d at 923; In re N.S.G. , 235 S.W.3d 358, 367 (Tex. App.

— Texarkana 2007, no pet.). “It is not necessary that the conduct be directe d at the ch ild or tha t the child a c tually suffer injury.” In re L.E.S. , 471 S.W.3d at 923. “Under subsection (E), it is sufficient that the child’s well

- being is jeopardized or exposed to loss or injury.” Id. (ci ting Boyd , 727 S.W.2d at 533; In re N.S.G

. , 235 S. W. 3d at 367)

. A finding under g round E must be based on more than a single act or omission. “ Instead, a ‘voluntary, deliberate, and conscious course of conduct by the parent is required.’” Id. (quoting Perez v. Tex. Dep’t of P rotective & Re g ul. Serv s . , 148 S.W.3d 427, 436 (Tex. App.

— El Paso 2004, no pet.) ) ; see Boyd , 727 S.W.2d at 533; In re N.S.G. , 235 S.W.3d at 366

– 67. “Ground E ‘ refers only to the parent’s conduct, as eviden ced not only by the parent’s

ac ts, but also by th e parent’s omi s sions or failures to act. ’ ” In re N. S.G. , 235 S.W.3d at 366

– 677

(quoting In re S.K. , 198 S.W.3d 899, 902 (Tex. App.

— Dallas 2006, pet. denied)). “The endangering conduct may

. . . occur ‘either be fore or after the child’s r emoval by the Depa rtmen t.’ ” In r e S.A.W. , 2022 WL 1193667, at *4 (quo ting In re Z.J. , No. 02

- 19

- 00118

- CV, 2019 WL 6205252, at *11 (Tex. App.

— Fort Worth Nov. 21, 2019, pet. denied) (mem. op.)). B. Evidence at Trial The evidence at trial showed that three

- ye ar - old Tara watche d her tw o - year - old brot h er, Leo, drown in a hot tub at a Holiday In n in Kilgore, Texas

. Leo was airlifted to the Children’s Hospital in Dallas but did not survive. P enny Cullefer, an investigator with Child Protective Services , te stifie d th at she received an inta ke fo r neglect f ul supervision of Tara, Leo, and their younger step

- sibling , Grant , after the incident.

1. The D rowning Vance E. Callahan, Jr., a s ergeant with the Kilgore Police Department, testified that he

wa s first to a rrive at the scene of the drowning. Cal l a han sai d that the pool area was the size of the courtroom and that Father was “trying to revive his son,” who was “lifeless, blue in the face and lips.” According to Callahan, Fa ther said he was feeding Grant “an d he turned his back” until Tara re ported that Le o fell in the water and said s he could not “get to him.” Cullefer visited the Holiday Inn and described the pool and hot tub area as “very small” and “on the bottom floor near around the corner from the fr ont desk.” The indoor po ol area also had “ a re g ul a r one bathroom with a door

. ” Cullefer spoke to Father, who told her he was bottle

feeding Grant at “a table at the office end of the pool w here the hot tub [ was] ” when Tara reported that Leo had falle n into th e h ot tub . “[ B]ased on the [small] s ize of t h e area, and8

[because] there wa s no one else in the pool,” Cullefer believed that Father would have heard Leo falling in if he were n ear. As a result, Cullefer “believed the kids were probably unat tended.” Mot her ’s testimon y supported Cullefer’ s the ory. Mother t estified that Fathe r admitted he had walked away from the pool area and was in the bathroom feeding G rant
. According to Mother , Father w ould not have been able to see Leo and Tara from th e bathroom

. M oth er testifie d that Tara said “ s he trie d to g et [Leo] out. That she had been trying, he was too heavy.” Father told Mot her that he did not hear Leo falling in “because [Grant] was screaming ,” but based on the timing of text messages and ph one calls fr om Father, Mothe r believed that Fathe r
was “mo s t likely on his phone during the incident

. ” Mother testified t hat leaving toddlers in a pool area unsupervised was dangerous to their physical health. Mother said she had provide d pool floati es , which Fa ther shou ld have put on the children as s o on as t h ey wa lked in to the pool area

. Mother said Father knowingly failed to put the floaties on and instead “ sat them down [ while ] doing something with [Grant] .” Latresse Russell, the Department’s co nservatorshi p worker, c oncluded that Father’s neglec t f ul supe r vision led to Leo’s death

.

2. Evidence of D rug and C riminal H istory Callahan said that Father did not ap pear to be under the influence of any drugs at the time of the inciden t
. Even so, based on Father’s pr ior his tory with the Department and “adm i [ssion]
t o using drugs in the pa st,” Cullefe r asked Father to take a drug test , but he refused

. Mother testified that she caught Father “with a [methamphetamine] pipe , ” that Father admitted he had relapsed , and that Father “got a possession charge” “[i]n the mont h s be fore the accident .”9

Fat her, who was incarcerated at the time of trial, was also arrested during the pendency of the case and had been jailed in Taylor, Gregg, a nd Midland C ounties. Mother al so said there were physical conflicts between he r and Fath e r . According to Moth er, aft er she a ttempted to create distance between them due to Father’s drug use, Father “grabbed [her] ” and “ threw [her] around

. ”

3. Missed V isitation with Tara In b etween h is confinement, Gilbert T. Brook testified that F a ther vis i ted Tara in his home during the brie f time she was placed there. According to Brook, Father’s visit with the child was inappropriate because Father left the visit early after “grill[ing]” Tara abo ut Mother. Brook said Father “

just wanted to kno w what [M o ther ] was doing, who she was with, w ho she [] [was] talkin g to .” Although Father and Tara had supervised , recorded visits, Brook said, “I had
to get onto [Father] about asking [Tara] about [Mother ] o r grilling her about [Mother] , until it got
to t he point where he blew up on me. ” As a result, Brook t old Father he would need to go through the Department for additional visits. Mother testifi ed that Father failed to exercise his right to visit Tara, which made her “sad

. . . because she missed hi m .” Afte r he refused drug testing, in September 2022 , the t rial court

s uspended Fathe r’s visits

. According to Mother and Cheri Pe ek, the Court Appointed Special Advocate, Father had not seen Ta r a in two years. Russell said t hat missed visitation leads t o challen g es with the parent

- child rel atio nship , and M other and Peek testified that Tara had not mentioned Father

. Peek said, “ I t hink it ’ s going to be confusing if [Father] come [s] in and out of [Tara’s] li [fe] and not of a stable environment .”10 4. Fai l ure to C o mplete the F amily S ervice P l an Cullefer and Russell also sa id that Father was not cooperative with the Department’s request to com plete his family service plan. Russell tes tified that Father had refused to take all but two drug test s , including w hen “the judge ordered [F ather] to go d rug test” aft er Father appea red in court. 3 As a result, Fathe r failed “at leas t fifteen” drug tests for failure to take them. Russell opined that, given Father’s history, “ there [] [was] clearly a drug issue that ha [ d] not b e en addressed,” which rai sed safety con cerns for Tar a. Russell tes tified that su bstance

- abuse
tr eatment was recommended after Father’s assessment but that Father did not complete it

. Russell said Father was unable to demonstrate that he had a s a fe envir o nment for a child because th e De partment could not “get a s table address,” r eceived a report that he had lost his job as a truck driver , and was notified “multiple times [that] he w as arrested on old charges and new charges.” Russell testified t h at Fat he r did not complete individual cou nseling or par enting classe s recommended a ft er his psychological evaluation

.

5. The P arties’ R ecommendations Father testified that h e provided financial support for Tara and believed it was in Tara’s best intere s t to rem a in with him

. Mother (1) den ied receiv ing Father’ s money fo r Tar a’s support , (2) did not believe that Father had a willingness to change because he did not accept the Department’s services , and (3) testified that termination of Fa ther’s parental r ights wa s in Tara’s best interests. Mother als o testified t hat Ta ra was not safe around Father, that the drowning had endangered Tara’s emotional wellbeing, and that Tara migh t need therapy for “the trauma of

3 Russell said that Father’s drug tests were neg a tive on Ju ne 23 and July 21 , 2021

.11

what happened that day because she remember [e d ] everyt h ing.” 4 As a result, Mother b elieved it

was in Tara’s best i nterests to rem ain with her. Russell testified that Mother had “worked really hard and m ade a lot of sacrifi ces to make sure she got her kids back.” Russell and Peek said that, since T ara and G rant’s monitored return, Mot h er provided fo r them well and h ad a stable hom e. In contrast, Russell said that Father’s cho ices, including his lack of contact with the Dep artment, failure to drug test , and unwillingness to work his family service p lan , ind i cated he was not “able to be r esponsible for children who [were] at an age who [ could not ] protect themselves.” Accordingly, Russell and Peek testified that it was in Ta ra ’s best interests to remain with Mother and have Father’s parental rights
t erminate d

. After he aring this evide nce, the tr ial court term inated Father’s parental rights to Tara. C. Analysis Under g round “(E), it is sufficient that the child[ren]’s well

- b eing is jeopardized or exposed to loss or injury.” Id. (citing Boyd , 727 S. W .2d at 5 3 3; In re N.S.G. , 235 S.W.3d at 367). H ere, the drown ing exposed Tara to the loss of her brother

. The evidence at trial showed that Father told Cullefer that he was at a table near the hot tub at the time of Leo’s drowning but that Cullefer did n ot belie v e F ather’s account. Accordi ng to Mother, F ather (1) failed t o place pool flo aties on Leo or Tara, (2) admitt ed that he had walked away from the pool area, (3) did not hear Leo fall into the hot tub, and (4) did not see Tara as she struggled to s a ve her b r oth er.

4 Rus sell said that Tara clearly loved and missed Leo but di d n ot exhibit signs of emotional trauma.12

Russell testified, a nd the trial court was free to believe, that Father’s neglect ful s upervision of the children led to Leo’s death , which was witnessed by Tara. The evidence also showed that Father had a drug history. “Drug use and it s effect o n a parent’s li fe and his ab ility to parent may establish an endangerin g course of cond uct.” In re J.L .B. , 34 9 S.W.3d at 848 (quoting In re N.S.G. , 235 S.W.3d at 368) ; see In re J.O.A. , 283 S.W.3d 336, 345 n.4 (Tex. 2009) (stating that parent’s i llegal d r ug use “ is of ten cited as co nduct [ that ] will support an affirmative f ind ing ” under g r ound E). Father ’s prior h istory with the Department involved an allega tion of drug use. Mother testified that Father admitted he was on drugs a few m onths bef

o re the i n cident and that Father had b een arrested f or possessing drugs. Despite request s from Cullefe r, Russell, and the trial court, Father failed to show up for at least fifteen drug tests. As a result, “ [t] he trial court was free to infer th at this r e fusal in d icated that Father was conti nuing to use d rugs. ” In re K.A.M.C

. , No. 06

- 18

- 001 09

- CV, 2019 WL 11 86709, at *4 (Tex. App.

— Texar kana Mar. 14, 2019 , no pet. ) (mem. op.) ; see In re A.M.L

. , No. 04

- 19

- 00422

- CV, 2019 WL 6719028, at *4 (Tex. App.

— San Anto n io Dec. 1 1, 2019, pet. denied) (mem. op.)

. Even t hough nothing showed that Father ever used drugs in fro nt of Tara ,

“ ‘[b]ecause it ex pose s the child to the possibility that the parent may be impaired or imprisoned , illegal drug use may support t erminatio n under’ G round E.” In re H.M.J. , No. 06

- 18

- 00009

- CV, 2018 WL 3028980, at *5 (Tex. App.

— Texarkana June 19 , 2018, no pe t.) (mem . op.) ( quoting In re A.L. , No. 06

- 14

- 00050

- CV , 2014 WL 5204888, at *7 (Tex. App.

— Texarkana Oct. 8, 2014, no pet.) (mem . op.) )

.13

Here, th e reco rd shows that Father wa s jailed for criminal activi ty, including possessin g drugs . Russell testified th at the Departmen t was notified “multiple times” that F ather was
arrest ed on “ old charges and new charges.” At trial, Father wa s incarcer a ted , a nd there was no evidence indica ting when he might be release d. Incarceratio n or “ i mprisonment is certainly a fac tor to be consid ered by the trial court on the issue o f endangerment” under g round E. In re N.S.G. , 235 S.W.3d at 367 (quoting Boyd , 72 7 S.W.2 d a t 533). Father’s presumed positive drug tests and inca rce ration led to his in ability to provide for Tara. The Department’s witnesses testified that Father had l ost his job and was unable to maintain any stable residence. Whe n a parent fails, or is un a ble, to provide stab le housi ng and provide for his child’ s s upport, the child is exposed to a life of uncertai nty and instabil ity. In re S.I.H. , No. 02

- 11

- 00489

- CV , 2012 WL 858643, at *5 (Tex. App.

— Fort Worth Mar. 15, 2012, n o p et. ) (me m op .)

. Also, C u llefer and Russell both test ified that Father was unable to c omplete his family service plan. In addition to the refusal to d rug test, Father did not complete subs tance

- abuse
treatment or recommended parenting classes and faile d to fully exercis e his vis i tation rights with Tara. Un der statutory ground E, “a pa rent ’s failure t o compl ete relevant requirements of [ her ] service pla n” is a relevant consideration. In re S.A.W. , 2022 WL 1193667, at *4 (citing In re Z.J. , 2019 WL 6205 252, at *11; In re U.H.R. , N o. 07

- 18

- 00318

- CV, 2019 WL 8 1874, at *5 (Tex. App.

— Amaril lo J an. 2, 2019, n o pet .) (mem. op.))

. After reviewi ng all the evide nce, we find it legally and factually sufficient to support the finding that Father voluntarily engage d in a course of co n duct tha t endanger ed Tara’s physical or14

emotional well

- being

. Beca use the trial court ’s g round E finding was support ed by sufficient evidence , we overrule Father’s point of error. III. Sufficient Evidence Support s t he Trial Court’s Best - Inter est Finding Fat h er also c hallenges the factual and le gal sufficiency of the ev iden ce supporting the
t rial court’s finding that termi nation of h is pa rental rights was in Tara’s best inter ests
. A. Standard of Review In determinin g the best interests of the child, courts c onsider t he following Holley factors: (1) the desires of the chil d, (2) the emo tiona l and physical needs of the chil d now and in the future, (3) the emotional and physica l danger to the child now and in the future , (4) the parental abilities of the indivi d uals see k ing custody, (5) the program s available to assist th ese individuals, ( 6) th e plans for the child by these i ndividuals, (7) the stability of the home, (8) the act s or omissions of the parent that may indic ate the existing parent

- child relationship is not a proper one, and (9) any excu se for the acts or omiss ions of the parent

. In re N.L.D. , 412 S.W.3d 810, 81 8

– 19 (Tex. App.

— Texarkana 2013, no pet.) (citing Holle y , 544 S.W.2d at 371

– 72); see In re E.N.C. , 384 S.W.3d at 807; see also T EX . F AM . C OD E A NN . § 2 63.307(b). These factors ar e not exhaustive, and th ere is no requirem ent t hat all of them be proved to ter minate parental rights. In re C.H. , 89 S.W.3d at 27. “In certain cases, evidence relating to on e factor may be adequate to support a find i ng that t ermination is in the best in terest of the child.” I

n re J.R.H. , No. 0 6

- 18

- 00052

- CV, 2018 WL 6625886, at *6 (Tex. App.

— Texa rkana Dec. 19, 2018, pet. denied) (mem . op.) (citing In re B.H.R. , 535 S.W.3d 114 , 123 (Tex. App.

— Texarkana 2017, no pet.))

. Furthe r , we may consider evidence u sed to support t he g rounds for ter mination of p arental rights in the best

- inter est analysis. I n re C.H. , 89 S.W.3d at 28.15

B. Analysis As for the first Holley factor, there was n o evidence of Tara ’s desires. Even so, Pee k and Mot h er both testified that Tara did not mention Fath er. Although Tara was “sad ” because Father had not visited her , she had no t seen Father in the two years pre ceding trial

. Conversely , Peek said, “[T ara] is very attached to her mother; always in h e r lap, l o ving on her, kissing on her,
te lling her that she loves her

. ” Because the evidence sh ow s that Tara was bonded to her Mother, who pro vided for her needs, and Tara had not recently seen or men tioned Father, we find that the first Holley factor wei g hs in fa v or of termination. The s econ d Holley facto r considers a chi ld’s emotional and physical nee ds , but “[a] parent who lacks st ability, income, and a home is unable to provide for a child’s emotio nal and physical needs.” In re Z.M. , 456 S.W.3d 677, 6 8 9 (Tex. A pp.
— Texarkana 2015, no p et.) (quoting In re J.T.G. , No. 14

- 10

- 0 0972

- CV, 2012 WL 171012, at *17 (Tex. App.

— Houston [14th Di st.] Jan. 19, 20 12, pet. denied) (mem. op.))

. The rec ord sho w s that Tara’s physical and emotional needs were great given he r young a g e and Mother’s testimo ny tha t she might require therapy f or t he tr auma suffered by watch ing her brother drown. Yet, Fat her was incarcer ated in Taylor, Midland, and Gre gg C oun ties on old and new criminal charges while the case was pending , which d emonstra t ed his instability and inabi lity to care for Tara

. Russe ll s aid that the Department was unable to obtain a “stable addr ess” for Father , who had lost his job and was i ncarcerated at the time of trial. W ithout stability, income, or a home, nothin g indicat e d that Fa ther could provide for Tara’s future emotional a nd p hysical needs. As a result , we conclude that the second Ho lley factor weig h s in favor of terminating Fat her’s pa rental rights.16

As for the third Holley factor, t he trial court was fre e to infe r that Father’s past conduct , including his drug use, phy sica l violence toward Mother, a nd negligent supervision leading to L eo’s death , showed he was a danger to Tara’ s emoti onal or physical well

- being. See In re A.B. , No. 06

- 22

- 00020

- CV, 2022 W L 3567911 , at *7 (Tex. App.

— Texarkana Aug. 19, 2022, pet. denied) ( mem. op.) ; In re Z.M. , 456 S.W.3d at 689 ; In re I.R.K.

- N. , No. 1 0

- 13

- 00455

- CV, 2 014 WL 2069281, at *7 (Tex. Ap p.
— Waco May 15, 2014, pet. denied) (mem. op.) ; Williams v. Williams , 150 S .W.3d 436, 451 (Tex. App.

— Austin 2004, pet. denied ); Ray v. Burns , 832 S.W.2d 431, 435 (Tex. A pp.
— Waco 1992, no writ)

. In considering the fourth and f ifth Holley factors, the Depar tment o ffered Father services that he did not take advantage of , which sho wed t h at he la c ked appropriate parental abi l ities. Russell said that Father’s unwillingness t o wo rk his family service plan indicated h e was not “able to be responsible for children who [were] at an age who [could not] protect themselves , ” and we agree. Fathe r did not complete individual couns eli ng. Although he finished one paren ting class, a subsequent psyc hological evaluation noted “inconsiste nt and defensive response s” that r esulted in a recommendation for further parentin g classes, which Father failed to f inish

. E ven though Fa ther had a drug history, he failed to comply with requests from the Departm ent and trial court to undergo drug testin g. He also fail ed to reg ularly vi sit Tara , despite having an opportuni ty to do so , and showed he lacked parental ab i lity whe n he used visita tion time to enquire about Mother’s activities ins tead of bonding with and enga ging Tara. As a result, we find that the fourth and f ifth Holl ey fact ors weigh in favor of terminating Father’s parental rights to Tara. See In re B.L

. H. , 609 S .W.3d 271, 281 (Tex. App.

— Te xarkana 2020, pet. denied)17

(parent’s “failure to complete the fami ly service plan, use of drugs during t he pendency of t he
case, an d abs ence from several visitation opportunities demonstrated a lack of parental abiliti e s and sh o wed that [his] relationship with [ his child] was not proper”) ; se e also In re D.W. , 533 S. W.3d 460, 471 (Tex. App.

— Texarkana 2017, p et. denied); In re X.R.L
. , 461 S.W.3d 633, 641 (Tex. App.

— Texarkana 2015, no pet.). The sixth and seventh Holley factors a lso weigh again st Father. T he testimony showed that Father had n o stable home , used drugs , an d had no plan for Tara since he was in carcerated for a n unspec ified a mount of time. In contrast, the Department ’s plan was for Tara to remain with Moth e r, who h a d successfu lly demonstrated improved parenting skills, co nsistently tested negativ e fo r drug use, and proffe r ed aspirations of future stabil ity for her chi ldren

. Because Father had no real plan for Tara’s future and failed to achieve stability

— i n c ontras t to Mother ’s strong a bility and desire to continue provid ing adequate care for Tar a
— fa ctors six and seven weigh in favor of termination. As for the eighth Holley factor, Father ’s drug use , criminal activity, failure to take advantage of visitatio n o pportu n ities with Tara, and non - com pliance wi th Department

- manda ted services shows that h is r elationship with the child was not app ropriate

. See I n re X.R .L. , 46 1 S.W.3d 633, 641 (Tex. App.

— Texarkana 2015 , n o pet. ) ; In re H.C. , No. 06

- 23

- 00016

- CV, 2023 WL 36123 6 8, at *6 (Tex. App

— Texarkana May 24, 2023, no pet. h.) (mem. op.) ; In re B.L.H
. , 609 S .W.3d at 281

. Last, Father points to his incarcerati on and t he fact that visits were suspended after September 2022 as excuses for his acts and omissions. Ev e n so, th e record shows that Father18

fa iled to visit Tara when he was out of jail and co ntinued to engage in criminal activity leading to his arrest fo r “new c harges. ” Father also offers no excuses fo r his fai lure to subm it to court

ord ered drug testing that was requested after he appeared in C ourt. As a result, we find that the last Holley factor weigh s in favor of ter min ating Father’s parental rights. After reviewi ng the Holley fa ctors an d considering the ent irety of the record before us, we find that the clear and convincing evidence pres ente d at trial is lega lly and factually sufficient to support the trial court’ s b est

- interest finding. As a result, we overrule Father’s last p oint of error and affirm the judgment terminating his parental rights. IV. Conclusion We affi rm the tri a l cou rt’ s judgment.

Sco tt E. Stevens Chief Justice Date Submitted: July 10, 20 23 Date Decided: July 14 , 2023