## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 10 - 00475 - CV

IN THE INTEREST OF C .S.L.E.H. AND C.H.H., JR., CHI LDREN

---------- FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- I. I NTRODUCTIO N Appellant C.H. Sr. (Father) appeals from the order terminating his parental rights to his chi ldren, C.S.L.E.H. and C. H. H. Jr. We will affirm.

II. F ACTUAL AND P ROCEDURAL B ACKGROUND Father is the alleged biological fath er of C.S.L.E.H. and C. H. H. Jr. C .S.L.E.H. was born in April 2005, and C. H. H. Jr. was born in July 2007. Both children tested positive for c ocaine at birth.

1 See Tex. R. App. P. 47.4.2

The children’ s biological mother, T.A., admitted to using drugs during her
pregnanc ies and to having a long history of drug abuse. S he was unable to rehabili tate and maintain sobriety, so the trial court terminated her parental righ ts in December 2008. T he cou rt declined to terminate Father’ s rights at that time. Prior to her rights being terminat ed , T.A. primarily cared for the ch ildren. Although Father did not live with the children , he saw them regularly before Appellee Texas Departmen t of Family Protective Services’ (TDFPS) Child Protective Services (CPS) unit removed the children and placed them in a foster home in Novembe r 20 07. Father was involved with T.A. for a number of years and was ―vaguely‖ aware of her drug abuse before CPS remov ed the children. CPS caseworker Penny Smith re ceived a referral related to C.H. H. Jr.’ s birth in July 2007

. In an attempt to avoid removal and foster care, Smit h placed the children with T.A.’ s oldest daughter as part o f a safety plan. Smith said that CPS did not place the children with Father beca use he never responded to her attempts to contact him and because he was previously convicted o f aggravated possession of a controlled substance

. Smith also declined to place the children with their paternal grand mother because Smith suspected that Father was living with her. Smith contact ed F ather for placement suggestions, but he never responded

. In November 2007, Paula R i etz, a Program Director at CPS, received a referral that the children may have been physically abused and neglected. She then discovered that the children were not residing with their adult sister as3

designated by the safety p lan. The children were instead residing with a woman not named in the safety plan , whom CPS determined to be an unsuitable

care giv er. R i etz communicated with Father during the removal process but

exc luded him as a placement option because he ref used to t ake a drug test. In her last efforts to avoid removal, R i etz asked Father and T.A. for additional family members that migh t be able to keep the children. Father gave R i etz his sister’ s name, but Ri e tz was unable to locate her, and T.A. did not provide R i e tz with any

names. While T.A. admitted to havi ng a drug problem, Father denied having any substance abuse problems of his own. Father began using heroin (his primary drug of choice) at age eighteen, and he admit ted to using it as recently as June 200 9. Father also admit t ed to using cocaine (his secondary drug of choice) in December 2007 and May 2008. Even though Father insisted that he did not have a drug problem, CPS caseworker Abigail Flores suggested that F ather take a drug assessment and follow its recommendations, namely drug reha bilitation
treatment. In June 2008, Father received detox treatment at the Billy Gregory facility. His treatment included doses of S uboxone, prescribed for heroin wi thdrawal symptoms. Father then moved to the Pine Stree t facility for an inpatient drug rehabilita tion program. Father’ s patient records indicate d that he used heroin for thirty

- nine years and us ed heroin three to six times per week for the six months prior to his admission to Pine Street

. Father’ s discharge summary, dated4

September 2008, stated that ―client is chemically dependent on heroin, gets easily frustrated when he fails to get his way and he lacks appropriate coping skills.‖ As part of his relapse prevention plan, Father wrote down alternative activ ities to mood

- altering drugs and noted that heroin would kill him and prevent him from being reunited with his two children. Father testified at T.A.’ s termination trial in September 2008 that he would never use drugs again. But since then, Father has ne ver tested negative for drugs . Shortly after the September 2008 trial, Father test ed positive for cocaine and heroin in December 2008. In January 2009, the trial court signed an order that set forth tasks that Father agreed to perform in order to have hi s children returned. These tasks included submitting to random drug testing. Six days after the court signed the order, Father admitted cocaine use , and on January 13, he tested positive for cocaine. F rom February 2009 through December 2009, Father faile d to attend four separately scheduled drug tests after Flores personally told him to do so. In May 2009, November 2009, and August 2010, Father arrived at the testing facility but was unable to provide a testable sample. After struggling to obtain a urin e sample from Father, CPS decided to take samples of Father ’ s hair. However, this alternative method failed because Father had no hair. 2

2 Father told CPS workers that he had no hair because he was Native American. However, Father identified himself as African

- American and not5

In January 2010, Father admitted to using cocaine and opiates and tested positive for cocaine . In April 2010, Father tested positive for cocaine, codeine, morphine, and heroin. In August 2010, Father was present for a random drug test, but he refused an oral swab. The tasks that Father was required to perform in order to regain custody of his children also included pa ying $270 per month in child support. Father owed a balance of $6,493.50 at the time of t rial in December 20 10

. Father , however, claims to have made the fir st two payments. He attributes his failure to make further payments to his unemployment. Althoug h Father testified in the 2008 trial that at that time he worked at least forty hours per week, he never provided proof of employment, despite repeated requests from case workers. Fa ther told Flores that he unloaded trucks in W i chita Falls, but he never pr ovided her with a pay stub, a pho ne number, or even his employer’ s n ame. Father testified that he sustained a back, neck, and nerve injury in April 2009 that prevented him from working until the Fall of 2010

. During the couple of months before trial, dur ing which Father was able to work, he did not go to any specific employers or to the Texas Workforce Comm ission to find work. Father testified that he went to a church that builds HUD homes and that he plan ned to file for his own disability and Social Sec urity from his late wife. American Indian or Alaskan native when registering to receiv e treatment at MHMR. Father had hair at the time of trial.6

The trial court’ s 2009 temporary order further provided that Fat her complete parenting classes. Father completed forty

- two hours of parenting classes before the 20 08 trial, but he did not complete any parenting classes after the 2009 orde r. Father testified that one set of c lass es was sufficient. In response to Father’ s failure to comply with the court order, among other acts or omissions , TDFPS petitioned the trial court in January 2010 to terminate his parental rights. The t rial court terminated Father’ s parental rights in December 2010. This appeal followed.

III. B URDEN OF P ROOF AND S TANDARD OF R EVIEW A parent’s rights to ―the companionship, care, custody, and management‖ of his or her children are constitutional interest s ―far more precious than any property right.‖ Santosky v. Kramer , 455 U.S. 745, 758

– 59, 102 S. Ct. 1388, 1397 (1982); In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003). ―While parental rights are of constitutional magnitude, they are not absolute. Just as it is imperative for courts to recognize the constitutional underpinnings of the parent

- child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.‖ In re C.H. , 89 S.W.3d 17, 2 6 (Tex. 2002). We strictly scrutinize termination proceedings and strictly construe involuntary termination statutes in favor of the parent. Holick v. Smith , 685 S.W.2d 18, 20

– 21 (Tex. 1985); In re R.R. , 294 S.W.3d 213, 233 (Tex. App.

— Fort Worth 2009, no pet.).7

In proceedings to terminate the parent

- child relationship brought under section 161.001 of the family code, the petitioner must establish one ground listed under subsection (1) of the statute and must also prove that termination is in the best int erest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp. 2010 ) ; In re J.L. , 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987). Termination decisions must be supported by clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (West 2008). Evidence is clear and convincing if it ―will produce i n the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.‖ Id. § 101.007 (West 2008). Due process demands this heightened standard because termination results in permanent, irrevocable change s for the parent and child. In re J.F.C. , 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J. , 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and modification). In evaluating the evidence for legal sufficiency in parental termination cases, we must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the ligh t most favorable to the finding and judgment. Id. We resolve8

any disputed facts in favor of the finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved. Id. We consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. Id. We cannot weigh wit ness credibility issues that depend on the appearance and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573

– 74. In reviewing the evidence for factual sufficiency, we give due deference to the factfinder’s findings and do not su pplant the judgment with our own. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent violated the relevant conduct provisions of sectio n 161.001(1) and that the termination of the parent

- child relationship is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; C.H. , 89 S.W.3d at 28. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction in the truth of its finding, then the evidence is factually insufficient. H.R.M. , 209 S.W.3d at 108.9 IV. E VIDENTIA RY S UFFICIENCY — E NDANGERMENT In his first issue, Father argues that the evidence is both legally and factually insufficient to support the trial court’s family code section 161.001(1)(D) and (E) endangerment findings. Endangerment means to expose to loss or injury, to jeopardize. In re J.T.G. , 121 S.W.3d 117, 125 (Tex. App.

— Fort Worth 2003, no pet.). The trial court may order termination of the parent

- child relationship if it finds by clear and convincing evidence that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endanger the physical or emotional well

- being of the child. Tex. Fam. Code Ann

. § 161.001(1)(D). Under subsection (D), it is necessary to examine evidence related to the environment of the child to determine if the environment was the source of endangerment to the child = s physical or emotional well

- being. In re D.T. , 34 S.W.3d 625, 632 (Tex. App.

— Fort Worth 2000, pet. denied). A child is endangered when the environment creates a po tential for danger that the parent is aware of but disregards. In re M.R.J.M. , 280 S.W.3d 494, 502 (Tex. App.

— Fort Worth 2009, no pet.). Inappropriate, abusive, or unlawful conduct by persons who live in the child’s home or with whom the child is compell ed to associate on a regular basis in his home is a part of the ―conditions or surroundings‖ of the child’s home under section 161.001(1)(D). Id. Conduct of a parent in the home can create an environment that endangers the physical and emotional well

- bei ng of a child. J.T.G. , 121 S.W.3d at 125.10

The trial court may order termination of the parent

- child relationship if it finds by clear and convincing evidence that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well

- being of the child. Tex. Fam. Code Ann. § 161.001(1)(E). Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child = s physical or emotional well

- being wa s the direct result of the parent = s conduct, including acts, omissions, and failures to act. J.T.G. , 121 S.W.3d at 125. Termination under subsection (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required. Id

. ; D.T. , 34 S.W.3d at 634. As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the child = s physical and emotional well

- being. In re S.D. , 980 S.W.2d 758, 763 (Tex. App

. — San Antonio 1998, pet. denied). To support a finding of endangerment, the parent ’ s conduct does not necessarily have to be directed at the child, and the child is not required to suffer injury. Boyd , 727 S.W.2d at 533. The specific danger to the child = s well

- being may be inferred from parental misconduct alone, and to determine whether termination is necessary, courts may look to parental conduct both before and after the child = s birth. Id. ; In re D.M. , 58 S.W.3d 801, 812

– 13 (Tex. App.

— Fort Worth 2001 , no pet.). A factfinder may also infer from past conduct endangering the well

- being of the child that similar conduct will recur if the child is returned to the parent.11

See In re D.L.N. , 958 S.W.2d 934, 941 (Tex. App.

— Waco 1997, pet. denied), disapprove d on other grounds by J.F.C. , 96 S.W.3d at 256, and C.H. , 89 S.W.3d at 17. A parent’ s engaging in illegal drug activity after agreeing not to do so in a service plan for reunification with his children is sufficient to establish clear and convincing proof of voluntary, deliberate, and conscious conduct that endangered the well

- being of h is children. In re T.N. , 1 80 S.W.3d 376, 383 (Tex. App.

— Amarillo 2005 , no pet. ). Because the evidence pertaining to subsections 161.001(1)(D) and (E) is interrelated, we conduct a consolidated review. 3 See In re T.N.S. , 230 S.W.3d 434, 439 (Tex. App.

— San Antonio 2007, no pet.); J.T.G. , 12 1 S.W.3d at 126. While Flores testified that she was concerned about Father’ s stability because of his inability to maintain employment , she stated that her primary concern s w ere his cocaine and heroin use and his in ability to provide a safe environment f or the children.

3 Although the trial court previously denied TDFPS’s petition to terminate Father’s rights, the family code allows us to consider evidence presented in favor of termination that was admitted at a p revious hearing. See In re D.S

. , 333 S.W.3d 379, 386 (Tex. App.

— Amarillo 2011, no pet.); see also Tex. Fam. Code Ann. § 161.004(b) (West 2008). TDFPS alleged in its f irst a mended p etition for termination in s uit a ffecting the pa rent

- c hildren r elationship ―that the circumstances of the child, sole managing conservator, or other party affected by the order denying termination on December 17, 2008, have materially and substantially changed since the date that order was rendered‖ and ―that [Father] has commit ted an act listed under Section 161.001 of the Texas Family Code before December 17, 2008.‖ Father d id not challenge eithe r of these allegations at trial, and he does not argue in his brief that the trial court could not consider evidence of hi s conduct b efore the 20 08 denial of termination.12

Father was convicted of aggravated possession of a contro lled substance in the late 1980 s , for which he served time in prison. Th ere is evidence that Father used heroin and cocaine for o ver half of his life. Although Father completed d rug treatment in 2008, he admitted to using heroin in June 2009. During TDFPS’ s involvement with Father, he never provided proof of empl oyment or tested negative for drugs

. Father argues that many of his positive drug tests actually resulted from his failure to appear for drug tests and from an inability of the testing site to obtain a testable sample. But the evidence indicates that Fat her tested positive for illegal substances f our times after the children were removed in November 2007. Although Father attended drug rehabilitation in 2008 after his first thre e positive drug tests, he admitted to relapsing and using heroin again in June 2009. Father testified that two of the 2010 drug tests were inaccurate , but he provided no reason for their alleged inaccuracy. 4 The trial cou rt was the sole judge of Father’ s credibility, and his positive drug tests were evidence that he engag ed in

con duc t that endangered his children’s well

- being. See T.N. , 180 S.W. 3d at 383. Furthermore, the evidence indicates that Father failed to attend five scheduled drug tests

. Although Father testified that he attended four of the tests that Flores said he had missed, he offered no explanation for why the tests were

4 Father did not challenge the three positive drug tests obtained prior to June 2009

.13

not recorded or performed. 5 In judging the credibility of the witnesses, the trial
court could have reasonably inferred from Father’ s failure to attend drug screenings that he avoid ed the test s bec ause he was using drugs. See In re W.E.C. , 110 S.W.3d 231, 239 (Tex. App.

— Fort Worth 200 3 , no pet. ); see also J.P.B. , 180 S.W.3d at 574. Finally, there is evidence that Father wa s responsible for the testing site’ s occasional inabili ty to obtain a testab le sample. After CPS struggled to collect Father’ s urine sample, it decided to test Father’s hair. However, a testable hair sample was unobtainable because Father had no hair. While Father told CPS workers that he had no hair because he was Native Ameri can, he had previously indicated on MHMR records that he was African

- American. T he trial cour t could have interpreted Father’ s repeated drug test refusals and his lack of hair at testing times but having hair at trial as an indication that he was using i l legal drugs after the children’ s removal, which is evidence demonstrating endangerment. See Cervantes

- Peterson v. Tex. Dep’ t. of Family & Protective Services , 221 S.W.3d 244, 253

– 54 (Tex. App.

— Houston [1st Dist.] 2006, no pet.). Father argues that CPS is at fault for not clearly indicati ng its expectations for his continued drug treatment and for not seeking to provide him with further

5 Father did state that his failure to perform one of the tests resulted from his daughter, who had given him a ride, needing to leave and thus shortening his visit.14

drug treatment after his post

- rehab posit ive drug tests. However, the focus of this is sue is whether Father’ s conduct en dangered the children, not the reasons why he engaged in such conduct or what CPS could have done differently. Cf. In re R.F. , 115 S.W.3d 804, 810 (Tex. App

. — Dallas 200 3, no pet.) (noting that mother’ s continuing course of destructive behavior that endang ered her children may be attributed to, but could not be excused by, her sexua l and physical abuse as a child and acknowledging that CPS could have handled her case as a child differently, but stating that moth er did little to help herself). Also, Father admitted at trial that he had written in his relapse prevention plan that using heroin again could kill him and could also prevent him from achieving his goals of reunificatio n with his children. Furthermore, Flores testified that Father ’ s original servic e plan (which included drug treatment) never expired, that he understood that he must abide by it, and that CPS provided him with access to programs that could assist him with hi s drug problem. Father also argues that ―there was no evidence that [he] ever directly or indirectly performed any act or omission that would constitute endangerment as to the children.‖ He contends that the children did not reside with him and that there is no evidence that he had used drugs while in the possession of the childre n or that the children were ever neglected or abused as a result of any drug use. T o support a finding of endangerment, however, Father ’ s conduct did not necessarily have to be directed at t he children, and the children wer e not required to suffer injury. See Boyd , 727 S.W.2d at 533. Father’ s heroin and15

cocaine use after TDFPS removed the children is sufficient to constitute endangerment. See Cervantes

- Peterson , 221 S.W.3d at 253

– 54. Fu rthermore, although F ather did not live with T.A. when C.H. H. Jr. w as born, Father testified that he visited the children at her house almost every day and that he was vaguely aware of T.A. ’ s drug use. 6 Thus, the trial court could have considered Father’ s failure to take action to protect his children from T.A.’ s drug ab use as sufficient evidence to establish that he knowingly allowed the children to remain in conditions or surroundings that endangered their well

- being. See Edwards v. TDPRS , 9 46 S.W.2d 130, 138 (Tex. App.

— El Paso 1997) ,
ov erruled on other grounds , J.F.C. , 96 S.W. 3d at 267 n.39

. Likewise, the trial court could have reasonably concluded that Father’ s prior drug conviction, his continued drug use, and his failure to maintain employment established a course of conduct that endangered the well

- being of the ch ildren. See In re R.W. , 129 S.W.3d 732, 743 (Tex. App.

— Fort Worth 2004, no pet.) (noting that imprisonment alone is insufficient to show a continuing course of conduct that endangers the physical or emotional well

- being of a child, but when considered in conjunction with evidence of substance abuse, mental instability, and sexual misconduct, such evidence provides further proof o f conduct that endangered child’s well

- being).

6 Both children tested positive for cocaine at birth. T.A. admitted to using drugs during pregnancy and to having a drug problem.16

Accordingly, giving due deference to the trial court’s findings, we hold that the trial court could have formed a firm belief or conviction that Father engaged in conduct or knowingly placed or knowingly allowed the children to remain in conditions that endangered their physical or emotional well

- being. See Tex. Fam. Co de. Ann. § 161. 001(1)(D), (E). We hold that the evidence is legally and factually sufficient to support the trial court’s family code section 161.001(1)(D) and (E) findings , and we overrule Father’s first issue. Having overruled this issue, we need not address

— and ther efore overrule

— his second issue challenging the legal and factual sufficiency of the evidence to support the trial court’s section 161.001(1)(O) finding. See Tex. R. App. P. 47.1; J.L. , 163 S.W.3d at 84 (stating that parent must have committed only one of the acts prohibited under family code section 161.001(1) for termination of her parental rights). V. E VIDENTIARY S UFFICIENCY — B EST I NTEREST In his third issue, Father argues that the evidence is legally and factually insuffici ent to support the trial cou rt’ s finding that termination of the parent

- child relationship between Father and the children is in the children’s best interest. He contends that T DFPS did not overcome the strong presumption that the best interest of the child is served by keeping the child with the parent

. See In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006). While we strongly presume that keeping a child with a parent is in the child’s best interest, we also presume that prompt and permanent placement of17

the child in a safe environment i s in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008) (listing factors that should be considered in evaluating the parent’s willingness and ability to provide the child with a safe environment). In a termination case, the trier of fact may use the following nonexclusive factors in determining t he best interest of the child: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now an d in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking cust ody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent

- child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. Holley v. Ada ms , 544 S.W.2d 367, 371

– 72 (Tex. 1976). These factors are not exhaustive: some may be inapplicable, and additional factors may be considered when appropriate. C.H

. , 89 S.W.3d at 27. Furthermore, undisputed evidence of one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child. Id. On the other hand, the presence of scant evidence relevant to each factor will not support such a finding. Id. The same evidence of acts or omissions used t o establish grounds for termination under section 161.001(1) may be probative in determining the best interest of the child. Id. at 28.18

A. The Desire of the Child While the children are very young and have not explicitly expressed their desires, Flores testified that the children share a close bond with their foster parents , with whom they have been living for three years. Flores also testified that the children call Father ―Daddy‖ during their visits with him; and Father testified that C.H. H. Jr. ―run s through the lobby hollering Daddy at the CPS office‖ wh en he arrives for a visit. B. The Emotional and Physical N eeds of the Children Now and in the Future Flores testified that C.S.L.E.H. is confused by the fact that she has a

mom my and dad dy at home and another dad somewhere else. Flores also stated that a court ’ s final decision would help give the children a permanent home and provide needed closure for the children. She said that the back

- and

forth visits interfere with the children’ s schooling. The children’ s foster mother testified that she builds trust and a bond with C. S. L.E.H. when the two participate in Mo mma - [Daughter] Day. The foster mother said that she talks to and listens to C. S. L.E.H. and that C.H.H. Jr. refers to her as ―Mommy‖ and r efers to her husband as ―Daddy

. ‖ C. The Emotional a nd Physi cal Danger to the Children Now and i n t he Future The record contains evidence that Father has been using illegal substances and that refusing to acknowledge his drug use is problematic f o r th e ch ildren. Flores testified that Father’ s positive drug tests after drug rehabilitation19

indicate that he failed to internalize the tools that he learned in rehab and that his continued denial of his drug problem will prevent the effectiveness of rehab in the future. Father testified that he used heroin in June 2009 despite knowing that it threatened his ability to get his kids back. Flores testified that the children should not have to wait any longer for their Father to prove his sobriety and stability and that his current drug use threatens their safety because of the probability that the children may access his drugs. D. The Parental Abilities of the Individuals Seeking Custody Father completed parenting class es in 2008 , and Flores testified that F ather acted appropriate ly on his visits with the children

. Father testified that he has only misse d two visits since the children’s removal. Father stated that he reads books and plays games with the kids and that he has a good rela tionship with the oldest ch ild. He said that she opens up to him about her life. Father further testified that he raised a family for thirty years with his late wife and her three children. But the evidence also indicates that Father has nev er provided proof of employment , has ne ver sustained a negative drug test , and his drug use impairs his judgment and , therefore , his ability to care for the children. The foster mother testified that she wants to adopt the children. She and her husband are both educators and , according to the foster mother , they engage in educational activities with the children at their home. The foster mother is in the process of completing a Ph.D. , and her husband has a M aster’s20

degree. The foster mother also testified that she has the children involved i n many extracurricular activities, includi ng sports and music. She further stated that she has taken the children on trips to the Atlantic O cean and the Kennedy Space Center. E. The Programs Available to Assist Father and the Foster Parents to Promote the Best Interest s of the Children Father testified that he would go into drug treatment if it meant getting his childr en. However, Flores questioned whether treatment would be effective for Father because he continued to deny that he has a drug problem. Father also testified that despite the fact that he used drugs after attending a parenting class in 2008, he believed that one set of c lass es was sufficie nt. Flores testified that if the foster parents are able to adopt the children, then the children ’ s m edical needs and state college tuitio n will be secured. F. The Plans for the Children by the Foster Parents and Father The foster mother testified that her vision for the next decade includes taking the children on vacation once a year, maintaining their college funds, and teaching them how to save money and be productive members of society. The foster mother said that she would do everything required of her to achieve permanency through adoption as quickly as possible. According to Flores, the
current restrictions on foster parents prevent them from fulfilling the children ’s best interest s

. Flores also testified that Father has never provided T DFPS with a child care plan to put in place if the children were returned to him.21

G. The S tability of the Home or Proposed Placement The foster parents are both element ary school teachers. Father, on the other hand, testified that he has not had a steady job in a year and a half, and his testimony indicates that he has taken minimal efforts to obtain employment

. 7
Flores testifie d that her concerns over Father’ s stability were addressed by requiring Father to make regular child support payments. However, the evidence indicates that he failed to make payments from February 2009 through December 2010 and that he owes over $6 , 000 in child support. Flores also testified that Fat her’ s drug use exposes him to possible incarceration and that there is no stability if Father is i n and out of jail. She further stated that Father has had plenty of opportunity to pr ove hi s stability and sobriety but has failed to do so. H. Father ’ s Acts o r Omissions Which May Indicate T hat the

Existing Parent - Child Relationship I s Improper The evidence indicates that F ather knew that T.A. was using drugs while she was the primary careta k er of his children. The evidence also indicates that Father ha d opportunities to address T.A.’ s drug use and its effects on the children because Father testified that he lived down the street from the children and visited them at T.A. ’ s home almost ever y day before TDFPS removed the

7 Father testified that has not gone to any specific employers or the Texas Workforce Commissio n to look for a job. He said only that he has been looking for a job in different places and plans to file for disability.22

c hildren in 2007. Furthermore, R i etz testified that Father had been involved with T.A. for a number of years and practically lived next

- door to her. Father argues that the record does not contain evidence that he com m itted

an act or omission toward or around the children that would indicate the parent

child relationsh ip is not proper. However, the record is also flooded with evidence of his illegal drug use as discussed in the above analysis

. Furthermore, Father has failed t o pay child support as he promised to do when he signed the ―A greed O rder for A ctions Necessary for Parent to Obtain Return of Child ‖ in 2 009. I

. Father’ s Excuse for His Acts or Omissions Father argues that his failure to pay child support is excused by his inability to work for a significant amount of time due to an ac cidental injury. However, the record does not indicate any excuses for why Father did not contact specific employers or the Texas Workforce Commission for the two or three months that he w as able t o work before trial. F ather also argues that his wife’ s death ―creat[ed] a reasonable assumption that some of the family support resources that would have been otherwise available to [ Father ] were lost‖ because ―his wife was willing to assist him in taking‖ in the children. However, Father testified at trial that his wife died three years ago and that someone else notified him to file for S ocial S ecurity and disability, but Father did not indicate that he has done so.23

Lastly, Father seems to arg ue that h is drug use is excused by TDFPS’ s failure to ―clearly convey to [ him ] that there was an expectation that [ he ] would need to complete additional drug treatment following the first termination trial in 2008.‖ However, Father testified that he has n ever had a drug problem and that he used drugs in June 2009 despite knowing that it would threaten his ability to get his kids back. Furthermor e, Flores testified that Father’ s original service plan never expired and that he understood that he was obligat ed to continue f ollowing CPS’ s expectations under the original service plan. Considering the relevant statutory factors in evaluating Father’s willingness and ability to provide the children with a safe environment and the relevant Holley factors, we hold that, in light of the entire record, and giving due consideration to evidence that the trial court could have reasonably found to be clear and convincing, the trial court could reasonably have formed a firm belief or conviction that termination of Father’ s parental rights to C.S.L.E.H. and C.H. H. Jr. is in the children’s best interest s

. Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court’s family code section 161 .001(2) best interest finding s

. We overrule Father’s third issue.24 VI. C ONCLUSION Having overruled all of Father’ s dispositive issues, we affirm the tr ial court’s order terminating Father’ s parental rights to C. S. L.E.H. and C.H. H. Jr.

BILL MEIER JUSTICE PANEL: GARDNER, WALKER, and MEIER, JJ. DELIVERED: August 25 , 201 1