Opinion issued August 2 2 , 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 19 - 00285 - CV

——————————— IN THE INTEREST OF K. M., JR. , A MINOR CHILD
On Appeal from the 315th District Court

Harris Count y , Texas Trial Court Ca se No . 2017 - 04805J

* * * In The 

## Court of Appeals For The 

## First District of Texas

———————————— N O. 01 - 19 - 00286 - CV

———————————2 IN THE INTEREST OF K. M., A MINOR CHILD
On Appeal from the 315th District Court

Harris Count y , Texas Trial Court Ca se No . 2018 - 01 409J

MEMORANDUM OPINION Th ese are accelerated appeal s from the trial court ’ s decrees terminat ing the parental rights of K .M. ( “ Father ” ) and D .M. ( “ Mother ” ) to their two minor children, K .M. Jr. ( “ Kevin ” ) and K. M. ( “ Karen ” ). 1 Th e case arose when a narcoti cs investigation led police to a hotel, where they disc overed Father, Mother, and Kevin living in a room covered in dog feces and trash. The police arrested Fat her and later returned to arrest Mot her

— who fled by jumping out of the second

- story window, leav ing Kevin and another ch ild in the hotel room alone

. T he Texas Department of Family and Protective Services was appointed Kevin ’s temporary managing conservator , an d, after Mother gave birth to Ka ren, the Depart m ent was appointed Karen ’s temporary managing conservator as well

. Over the following year - and

- a - half, Father and Mother consistently tested positive for cocaine and related substances, and their paren tal rig hts to both chi l dren were terminated after a bench trial.

1 See T EX
. R. A PP
. P. 28.1, 28.4; s e e al so T EX
. F AM
. C O DE § 1 09.002(a

– 1).3

Father’s counsel filed a brief ra is ing four issues, three of which challenge the legal and factual sufficiency of the trial court’s predicate findings under Section 161.001(b)(1), 2 and one of which challenges the l eg al an d factual sufficiency of the trial court’s best

- interest finding und er Section 161.001(b)(2). 3 Mother’s counsel filed a motion to withdraw and corresponding Anders brief, 4 arguing Mother’s appeal is without merit , and there are no gro unds for revers a l becau s e there is legally an d factually sufficient evidence to show that (1 ) Mothe r had her parental rights to an older child from a previous relationship terminated on endangerment grounds and (2) termination of Mother’s parental rights to Kevin and Karen was i n t he ch i ldren’s best interest

. We overrule Father’s issues, deny M o ther’s counsel’s motion to withdraw, and affirm the trial court’s decrees of termination. Background The Department receives a referral accusing Mother and Father of physi cal neglect and ne

glect f ul supervision Fathe r and Mother have two children together : Kevin , who was born in December 2016, and Karen, who was born in March 2018. This case began in

2 See T EX
. F AM
. C ODE § 161.001(b)(1).
3 See T EX
. F AM
. C ODE § 161.001(b)(2).
4 See Anders v. California , 386 U.S. 738 (1967).4

August 2017, roughly eight months before Karen was born , when the Departme nt received a r e fe rral a ccusing Mother and Fa ther of physical neglect and neglectful superv ision of Kevin. On August 2, 2017, Mother was pulled over by officers conducting a narcotics investigation. Mother did not have her identification, so the officers allowed her to r et rieve it from the hotel room where she had been living with Kevin, Fathe r, and Father’s twelve

- year - old daughter from a prior relationship. However, when the officers arrived at the hotel room, Mother was not there. Instead, they found F ather, whom the y a rrest e d due to an outstandi ng felony
warrant. The officers later ve r ified Mother’s identity, discovered that she also had an outstanding arrest warrant, and returned to the hotel room the next day to arrest her. But when they arrived, Mot her fled by jum p in g out of the second story h otel room window

— abandoning Kevin, then e ight months old, and Father’s daughter, both of whom remained in the hotel room, which was covered in dog feces and trash. Mother was found and arrested later that day. T he officers fil e d a ref e rral. As the Departme nt investigated the referral, it discove r ed th at Mother’s parental rights to an older child from a previous relationship had been terminated in 2012 and that Mother was currently pregnant with her third child. T he Department a l so disc o vered that Mother and Father had extensive criminal records.5

M other had convictions for theft, prostitution, and possession of cocaine, while Father had convictions for criminal mischief, harassment, forgery, unauthorized use of a v ehicle, and pos s es sion o f cocaine. Both had also been arrested and jailed on charges t hat were eventually d ropped or for which they received probation

. The Department petitions to terminate Mother’s and F ather’s parental rights to Kevin and Karen In Octob er 2017, the De p artment filed a petition to terminate Mother’s and Father’s parental r ights to Kevin, and the trial court appointed the Department Kevin’s temporary managing conservator. Kevin was then pl aced with a foster

- to

adopt father. The trial court then approved a n d requi r ed Mother and Father to follow family service plans prepared f or them by the Department. As relevant here, the plans required Mother and Father to remain drug

- free, submit to rando m drug testing, undergo substance abuse treatment, a nd attend N arco t ics A no n ymous meetings. The plans included the statutorily

- required a d monishment that failure to comply could result in the terminat ion of their parental rights. See T EX . F AM . C ODE § 263.102(b). Mother and Father did not comply with their p lans. Over the f ollowin g year and

- a - half, they consistently failed (or failed to appe a r for) random drug testing,6

testing positive for cocaine and r elated substances throughout the entire case. 5 Although Mother and Father periodically provided negative uri ne samples, Fat h er
neve r provided a negative hair follicle sample and Mother provided a negative sample only once. 6 Moreover, the level s of cocaine in their hair follicle samples did not decrease steadily (indicating sobr iety) but rather fluctuated up and down, (indicati n g perio d ic drug use). Mother and Father continued to test positive af t er completing substance abuse treatment, and, as a result, the ir plans were amended to require them to undergo additional treatment. Al though both of them claimed to have attended NA

me e tings, t hey failed to provide proof to the caseworker. In March 2018, during the pendency of Kevin’s termination procee ding, Mother gave birth to Karen. Before Mother and Karen were discharged from the

5 Father teste d positive on (1) Januar y 10, 2 018, (2) February 23, 2018, (3), Augus t 20, 2018, (4) Oc t o ber 10 , 2018, and (5) December 5, 2018. Father failed to submit to drug testing and was thus presumed to have tested positive on (1) February 7, 2018, (2) March 28, 20 18 , (3) April 2, 2018, ( 4), May 7, 2018, (5) May 31, 2018, (6) June 5 , 201 8, (7) Septem b e r 14, 2018, (8) September 25, 2018, (9) November 16, 2018, (10) November 29, 2018, and (11) December 21, 2018. Mother tested positive on (1) October 27, 2017, (2) Dece mb er 13, 2017, (3 ) Febru ary 23, 2018, (4) April 2, 2018, (5) October 1 0, 2 018, and (6) D e cember 5, 2018. Mother failed to submit to drug testing and was thus presumed to have tested positive on (1) February 7, 2018, (2) March 28, 2018, (3) May 7, 2018, (4) M ay 31, 2018, (5 ) June 5, 2018 , (6) September 14, 2018, (7) Septembe r 25, 2018, (8) No v e mber 1 6, 2018, (9) November 29, 2018, and (10) December 21, 2018.

6 On August 20, 2018, Mother underwent a urinalysis and hair follicle test, both of which were nega ti ve. However, Mo ther la ter rel apsed and failed several subsequent dr u g te sts.7

hos pital, the Department received a re ferral accusing Mother a nd Father of neglectful supervision of Karen. The referral wa s based on their continued drug

use

— including drug use during M other’s pregnancy

— and evidence that Karen had exhibited signs of drug wit hdrawals after birth. Later that mo nth, the Depart m ent fil e d a petition to terminate Mother’s and Father’s parental righ t s to Karen, and the trial court appointed the Depar tment Karen’s temporary managing conservator. Karen was placed with the same foster fa ther as Kevin. Kevin and Karen we re then tempora r ily remov e d from the foster placement and placed with fictive kin, th e children’s godparents. However, the placement was ultimately un successful because of an adverse development in the godparents’ financial situation, and the children were placed back wi t h the fos t er father, where the y remain ed for the rest of the case. Th e case is tried to the bench The two cases were tr ied jointly i n March 2019. At the bench trial, the Department presented a number of ex hibits, including Mother’s and Fa ther’s drug
tes t results a nd criminal records. Four witnesses testified: Mother, Fath e r, the caseworker, and a court

- appointed child advo cate. Mother’ s testimony. Mother testified that Kevin had come to the Department’s att ention because she had “jumped ou t a window” whe n police

a r rived at the hotel room they were living in August 2017. Mo t her admitted that8

she had been trying to flee from the police be cause she knew she had an outstanding warrant and did not want to go to j ail. Mother admitted that, when s he fled from th e police, s he left Kevin and Father’s daughter alone in the hotel room

. But she insisted that she had called someone to wa tch the child ren and that the person was en route when she jumped out the window. Moth er did not identify specifically who she had cal l ed or exp l ain that person’s relationship to her or the children. Mot h er testified that Father was not in the hotel room at that time because he had been arrested the day before. She explained the incident w here she was in a vehicle that wa s pulled over b y the poli c e and thereafter ran away. She further explained that Fathe r was subsequently arrested on warrants when the pol ice came
to t he hotel room where they were staying. Mother testified that the family h ad been living in the hotel for a bout six months and that , at the time of the arrests, she was not working , but Father was working as a security guard at the same hotel. Mother admit ted that she had her parental rights to her oldest son terminated in 2012 . During the pendency of that pro ceeding, she me t and bega n dating Father. And once the termination was finalized, she began to use hard drugs, including crack cocaine. M other admitte d to extensive past drug use, and she admitted to past drug dealing, incl uding drug dealing as late as 201 7 after Kevin w a s born. S h e denied9

any drug use after her release from jail in August 2017 and claimed that any subsequent positive tests were attribu table to drug use that had occurred before that date. She was unable to e xplain why the levels of cocaine in her urine an d hair follicle samples periodically spiked. Father’s testimony. Fath e r admitted that, when he was arrested at the ho tel in August 2017, there were drugs in the hotel room. He insisted, however, that the drugs belonged to an unidentified th ird party and n o t to M other or to him. Like Mother, Father admitted to extensive past drug use. He admitted that he began using crack co caine before meeting Mother in 2012 and that he used the drug regularly over many year s. He admitted to regular use of the drug in 2016 af t er Ke v in was born. And he admitted to using the drug in 2017 with M other when she was pregnant with Karen. Father fur ther admitted to using the drug during the pendency of the termination proceedings. Fa ther admitted that he had relapsed du ring the penden c y of t he case, but he claimed that he stopped using the drug in Ap r il 2018. However, like Mother, Father was unable t o explain why the level of cocaine in his samples spiked after that date. Father testified that he provided financially for both himsel f and Mother

. Father testified that they lived apart because of the po s sibility of Mother’s prior termination affecting the o utcome of the se cases. However, Father admitted that10

Mother would look after the children while he was at work if the c ourt would
retu r n the chi l dren to him. Father testified that it was his request an d desire for the court to return the children to both o f them. The caseworker’s testimony. The caseworker testified that the Department ’s goal was termination because the pa rents had not s h own that t hey are able to stop using cocaine. The Department was t h erefore conc erne d that the parents would continue to abuse drugs and not be able to prope rly care for their children. The caseworke r explained tha t this was the parents’ second attempt at group counseling “because they had to be reassessed due to them con t inuing to te st p ositive.” The parents had also failed to complete NA as required. The cas eworker disagreed with Father’s testimony that no one eve r explaine d to him that he had to attend NA meetings. The caseworker testified that she met Father in person e ach month an d di scussed the remaining requirements of Father’s plan, including the requir ement to attend NA meetings. The caseworke r further testi f ied that n either parent provided her with proof that they had attended NA meetings. The caseworker testified that the chi ldre n were placed with a foster

- to

- adopt parent and that the adoption could n ot take place if the parents’ rights were not terminated. The casew o rker explained that the children were initially placed with the foster father but were then remove d and placed with fictive kin, the children’s godparents. However, the placement with the children’s godparents was ultimately11

unsuc cessful because the godmo t her lost her job, thereby preventing the couple from supporting the children financially. The chil d ren were then retu rned to the foster father, who cared for them for the remainder of the procee dings. The caseworker testified that the c hildren were ve r y well bo n ded to their foster father and called him “Dad.” She further testified that the current fost e r parent was “grea t” a nd was very engaged with the children. The caseworker believed that the f oster father communicated very well with h er regarding th e children ’ s needs, that he love d them, and that the placement would be a very good one for the childre n . T he c aseworker testified that the Department believed termination was in the

c hildren’s best interest because the childr en were young a n d bonded w ith a stable and loving foster parent and because the parents had been given the opportunity to show they c o uld liv e drug free but continued to test positive. The advocate’s testimony. The advocate’s testimony was similar to and

c orroborated the caseworke r ’s. The advocate recommended that the parents’ rights be terminated because of their continued drug use and failu re t o complete services. Because of the parents’ continued drug use, the advo cate did not believe the parents could provide a safe environment a n d stable home for the children. The advocate agreed with the current placement. She testified that there w as
mu tual love between the children and the foster father, who, according to the

a dvocate, had done a “great job” in car ing for the two young childre n . The12

advocate noted that he would not be able to adopt the children if Mother ’ s and Father ’ s parental ri g hts were not terminated. A fter the trial, the trial court entered decrees terminating Mother’s and Fath er’s parental rights to Kevin and Kare n. In the decre e s, the trial c ourt found that termination of Mother’s parental rights was justified under subsect i ons (D), (E), (M), and (O) and was in the children’s best interest. The trial court found that terminati on of Father’s parental rights was jus tified under su b sections (D), (E), and (O) and was in the children’s best interest. Each parent filed a notice of appeal. Father ’ s attorney filed a brief, and Mother ’ s attorney fi led a motion to withdraw and Anders brief. Termina tion of Father ’s Rights In f our issues, Father contends that the evidence is legally and factually insuff icient to support the trial court’s fi ndings that (1) termination w a s justified under subsection (D), (2) termination was justified under subsection (E ), (3) termination was justi fied under subsection (O), and (4) termination was in the children’s best int erest. A. Applicable law and standard of review Under Se c tion 161.001 o f the Family Code, the Department may petition a trial court to terminate a parent

- child relationship. The tria l co urt may grant the petition if the Department proves, by clear and convinc ing evidence, that (1) the13

parent c omm itted one or mo r e of the enum e rated acts or omissions justifying termination and (2) termination is in the child’ s best interest. T EX . F AM . C ODE § 161 .001(b). Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of f a ct a firm bel i ef or conviction as to the truth of the allegations sought to be established.” Id. § 101.007; see also In re J. F.C. , 96 S.W.3d 256, 264 (Tex. 2002). Section 161.001 lists 21 acts and omiss ions justifying termination of the par ent

- child relat i onship. T EX . F AM . C ODE § 161.001(b)(1). As relevant here, termination i s justified under Section 161.001 if the parent:

• knowi ngly places or knowingly allows the child to remain in conditions or surround ings that endanger the physical or emo tional well

- bei n g of the chil d , id. § 161.001(b)(1)(D);

• engages in conduct or knowingly places the child with pe rsons who engage in conduct that endangers the physical or emotional well

- being of the child, id. § 161.0 01(b)(1)(E);

• has had his or her pa ren tal rights to a n other child t e rminated based on a finding of endangerment under subsection (D) or (E), id. § 161. 001(b)(1)(M); or

• fails to c ompl y with the provisions of a court order that specifically establish the ac tions necessary for the parent to o bta in the return o f the child, i d

. § 161.001(b)(1)(O). Only one predicate finding under S ection 161.001(b)(1) is n ecessary to support a judgme nt o f termination when there is also a finding that termination is in the chi ld’s best interest. In re A.M. , 495 S. W.3d 573, 579 ( T ex. App.

— Hous t on14

[1st Dist.] 2016, pet. denied). However, when, as here, a parent’s rights are
te rminated based on multiple p redi cate findings, including an endangerment finding , the parent is entitled to appellate review of the endanger men t finding becau s e of the cons e quences that the finding could have on his or her parental rights to other children 7

— even if another finding alone is sufficient to uphold termination. In re N.G. , No. 18

- 0508, 2019 WL 2147263, at *2 (Tex. May 17, 2019)

. In determi ni ng whether te r mination is in the child’s best interest, courts consider the nine nonexclusive factors list ed by the Sup reme Court of Texas in Hol ley v. Adams : (1) the desires of the child; (2) the emotional and physica l needs of the child now and in the fut ur e; (3) the em o tional and physical danger to the child now and in the future; (4) the parental abilities of the individuals se eking custody; (5 ) the programs available to assist these individuals to promote the best interest of the child; (6) t he plans fo r the child by t hese individuals or by the agency seeking custody; (7) the stability of the home or propo sed placement; (8) the parent’s acts or omissions that may indicate the existing parent

- child

7 Beca u s e only one ground is required to terminate parental rights and subsections (D) and (E) have consequences for termination of parental rights as to children in a future pr oceeding under subsect ion (M) , terminating parental rights under su b sect ions (D) and ( E ) impl icates significant due process concerns for a parent’s care, custody, and control of his or her children. In re Z.M.M. , No. 18

- 0734, 2019 WL 2147266, at *1 (Tex. M ay 17, 2019)

.15

relationship is no t a proper one; and (9) any excuse for th e parent’s ac t s or omissions. 544 S.W.2d 367, 372 (Tex. 1976). The same evidence of acts or omissions u sed to establish groun d for termination under Section 161.001(b)(1) may be probative in determining in the best interests of the child. In r e L.M. , 104 S .W.3d 642, 64 7 (Tex. App.

— Houston [1st Dist.] 2003, no pet.). In a legal

- sufficiency review in a parent al

- rights

- termination case, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier o f fact coul d have formed a firm belief or conviction that its finding was true. In re J.F.C. , 96 S.W.3d at 266. We a ssume that the factfin der resolved disp uted facts in favor of its finding if a reasonable factfinder could do so , disregarding all evidence that a reas on able factfind e r could have disbelieved or found incredible. Id. In a factual

- sufficiency review in a pa rental

- rights

- terminat ion case, we dete rmine whether the evidence is such that a factfinder could reasonably for m a firm belief or convictio n about the t ruth of the D e partment’s allegations. In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002). By focusing on whether a reasonable factfinde r could form a fi rm conviction or belief, the appellate court maintains the required defer ence for the factfinder’s ro le. Id. at 26 . An appellat e court’s review must not be so rigorous that the only factfindings that could withstand r eview are those establ ished beyond a re asonable doubt. Id. We should consider whether16

disputed evidence is such that a reasonable factfinder could not ha ve resolved t h at disputed evidence in favor of its finding. In re J.F.C. , 96 S.W.3d at 266. If, in ligh t of the entire record , the disputed ev idence that a reasonable factfinder could not have credited in favor of t he finding is so significant that a fac tf inder could n o t reasonably have formed a firm belief or conviction, then the evidence is factually insu fficient. Id. B. Endanger ment under Sectio n 161.001(b)(1)(E) Because it affects our analysis of his other issues, we begin with Father’s second issue, in wh ich he conten d s that there is legally and factually insufficient evidence to support the trial court’s finding under subsecti on (E) that he “ engaged in con duct or knowingly placed the child[ren] with persons who engaged in condu ct which endang ers the phy si cal or emotio n al well

- being of the child[ren].” T EX . F AM . C ODE § 161.001(b)(1)(E). Subsection (E) focus es on conduct. For ter mination to be justified under subsection (E), the parent must have engaged, or knowingly placed the ch ild with a pers on who enga ge d, in endange r ing conduct

— i.e., conduct that exposes the child to loss or injury. In re J.T.G. , 121 S.W .3d 117, 125 (Tex. App

. — Fort Worth 2003, no pet.); s ee also In re M.C. , 917 S.W.2d 268, 269 (Tex. 1996). Termination under

su bsection (E) mu st be based o n more than a single act or omission; rather, the statute requires a voluntary, deliberate, and conscio us course of conduct b y the17

parent. In re J.T.G. , 121 S.W. 3d at 125; see T EX . F AM . C ODE § 161.001(b)(1)(E). It is not necessary, ho wever, th at the pare nt’s con duct be direc t ed at the child or that the child actually suffer injury. Tex. Dep’t of Human Servs . v. Boyd , 727 S.W.2d 531, 5 33 (Tex. 1987); I

n re J.T.G. , 121 S. W.3d at 125. The specific danger to the child’s well

- being may be inferre d f rom parenta l misconduct s t anding alone

. Boyd , 727 S.W.2d at 533; In re R.W. , 129 S.W.3d 732, 738 (Tex. App.

— Fort Wor th 2004, pet. denied). A finding o f endangerment under subsectio n (E) may be supported by evidence that:

• the parent used illegal narcotic s b efore or du ring the termi n ation procee d ings, 8

• the parent knowingly left the child in the care of a known user of il legal narcotics, or

• the parent en gaged in criminal conduct that resulted in, or could have resulted in, a sentence of confinement to jai l o r prison. 9 The testimony and document a ry evidence show that Father engaged in the se t h ree types of endangering cond uct.

8 See In re J.O.A. , 283 S.W.3d 336, 3 4 5 (T ex. 2009); Wal k e r v. Texas Dep’t o f Family & Protective Servs. , 312 S.W.3d 608, 61 8 (Tex. App.

— Houston [1st Dist.] 2009, pet. denied).
9 In re A.A.M. , 464 S.W.3d 421, 426 (Tex. App.

— Houston [1st Dist.] 2015, no p et.).18

First , the evidence shows that Father abused ille gal narcotics

— specifically, crack cocaine

—

both before and during the term ination proce edings. Fat h er admitted to r e gularly using cocaine before the Department received the referral for Kevin in 2017. He admitted to using cocai ne both with friends and with Mother

— including while Mother was pregnant. Father also admitted to usin g cocaine duri ng the pend e nc y of the ter m i nation proceedings. Father testified that he initially stopped using cocaine and complet ed his substance abuse treatment. But he admitted tha t he later relapsed in October 2018. The drug tests presented by the Dep artment confir med that Fa t he r continued
t o use cocaine after the Department was appointed temporary managing conservator of Kevin in 2017 and after the D epartment was appointed tempor ary managing conservator of Karen in 2018. Although he periodically p rovided negative u rine sa m

pl es, Father never p rovided a negative hair follicle sample. Every hair follicle sample provided by Father d uring the pendency of t he proceedings tested positive for cocaine or related substances, which shows that at no relevant time was Father com pletely dr u g free. Moreov e r , throughout the proceedings, the level of cocaine in his hair follicle samples did not d ecrease in a continuou s fashion. Rather, they fluctu ated up and down, reflecting periods of sobriety and relapse. Finally, Fa ther failed to submit to r an dom drug tes t i ng on 1119

separate occasions and was presumed to have tested positive for drugs on each of these dates. The evidence of Father’s unabated drug use is legally and factually sufficient to support the trial court’ s finding that Fathe r “en g ag ed in conduc t . . . which endangers the physical or emotional well

- being of the child[ren].” T EX . F AM . C ODE § 161.001(b)(1)(E ); see In re J.O.A. , 283 S.W.3 d at 345 (“[A] parent’s use of narcotics and its effect on his or her abi lity to parent may q ualif y a s an endange r i ng course of conduct.”); Walker , 312 S.W.3d at 617 (“ Because it exposes the child to the possi bility that the p arent may be impaired or impri soned, illegal drug use may support termination under section 161.001(1)( E).”); see also In r e K.R

. G. , No. 01

- 16

- 00537

- CV, 2016 WL 7368082, at *7 (Tex. App.

— Houston [1st Dist.] Dec. 15, 2016, pet. denied) (mem . op.) (“ Notably, illegal narcot ics use creates the possibilit y that a parent will be impaired or imprisoned, and thus, incapable of pa renti ng, s upporting termi n at ion of parent a l rights under subsection E.”); In re K.C.F. , No. 01

- 13

- 01078

- CV, 2014 WL 25386 24, at *10 (Tex. App.

— Houston [1 st Dist.] June 5, 2014, no pet .) (mem. op.) (“ Courts have also held that a parent’s decision to engage in il legal drug use durin g t he pendency o f a termination suit, when the parent is at risk of losing a child, may support a finding that the parent engage d in conduct that endangered t he child’s physical or emotional well

being.”).20

Second, Father left Kevin in t he ca re of Mother, a pe rson who both sold and used crack cocaine. Although Father denied knowing that Mother sold co caine, the evidence permitted th e trial court, as factfinder, to disregard Father’s testimony and find that Father was aware of Mother’ s dru g dea ling. And even i f Father was

un a ware that Mother sold cocaine, it is undisputed that he knew Mother was a heavy user of crack cocaine, which, a s just discussed, is conduc t sufficient to support a finding of endangerment under subsection (E). T hus, the evid ence that Fat he r left Kevin i n the care of Mother is legally and factually sufficient to support the trial cour t’s finding that Father “ know ingly placed the child[ren] wi th [a] person[] who engaged in conduct which endangers the[ir] physical o r emotio nal

w ell

- being.” T EX . F AM . C ODE § 161.001(b)(1)(E). Finally, the evidence of Father’s extensive criminal record supp orts the trial court’s findin g of endangering conduct. “Alt hough incarceration alone will not support termination of parental rights , eviden ce of criminal con du ct, convictio n s, and imprisonment may support a finding of endangerment.” In re K.R.G. , 2016 WL 7368082, at *7 . And “[a]lthough [Father]’s convictions and terms of im prisonment oc c urred prior to the births of the children, courts look t o wha t a parent did both before and after the children’ s births to determine whether termination of parental rights is necessary.” Id. at *8. As we have expla ined, “conduct that routin el y subjects ch i ldren to the probability that they will be left21

alone be cause a parent is ja iled endangers both the physical an d emotional well

being of the children.” Id. ; see also In re T.G.R.

– M. , 404 S.W.3d. 7, 14

– 15 (Tex. App.

– Houston [1st Dist.] 2013, n o pet.) (cons i dering “charges stemming from . . . two arrests [that] w ere u ltimately dismi ssed” and noting each time mother w as confined “she was absent from [ child’s] life and was not a ble to provide for [child’s] physical and emot ional needs”). Thus, “ a parent’s narc o tics use, and the imprisonment relating to it, harm the physi cal and emotion al well

- being of children and the p arent

- child relationship.” In re K .R.G. , 2016 WL 7368082, at *8. The evidence of Father’s prior convictions and other criminal co nd uct, while pe r haps insufficient alone to support a finding of endanger ment, is evidence th at the trial court could have reaso nably considered together with the evidence of the parents’

c onsistent drug use in finding that termination was justified under s ub section (E). We hold that there is legally and factually sufficient e viden ce to support t he trial court’s finding that termi nation of Father’s parental rights to Kevin and Karen was jus tified on grounds of endangerment under subsec tion (E). Because we h av e determined t hat sufficient evidence supports termination under at le ast o ne predicate th at could underlie a future s ubsecti on (M) termination, we see no basi s for addressing Father’s f

irst issue, in which he contends the evidence is legally and factual ly insufficient to support the trial court’s finding under subsection (D ), or his third issu e, in which he contends the evidenc e is legally and factually22

insuffi cient to support the trial court’s finding under subsection (O). Accordin gly, we overrule Fathe r’ s second issue and do not r each Father ’ s first and third issues. We tu rn now to the trial court’s best

- in terest finding

. C. Best - interest finding In his fourt h issue, Father contends that t he evidence is legally and factually insufficient to support the trial court ’s finding that termin at ion of his pa r ental rights was in the ch ildren’s best interest. To determin e the sufficien cy of the evidence, we consider the evidence relating to the relev ant Holley factors. First factor

— the desires of the children

. There is no direct evidence about th e children’s de s ires because they were les s than two years old at the time of trial. See Hol ley , 544 S.W.2d at 371. “When children are too young to express th eir desires, the fact finder may consider that the children ha ve bonded with the foster family, ar e well

- cared fo r by them, and have spent m inimal time with [their] parent.” I n re J.D. , 436 S.W.3d 105, 118 (Tex. App.

— Houston [14th Dist.] 2014, no pet.). Ke vin was eight months old when placed with his foster father. K aren was a newborn, less than a mont h old. At the t i me of trial, they had live d with their foster father for the majority of the ir lives, and the caseworker and advocate both testified that they had bonded with him. The caseworker and advocate further
test ified that the foster father loved b ot h children an d wished to adopt them. Thi s evidence weighs in favor of the t rial court’s be st

- interest finding.23

Second factor

— the emotional and physical need s of the children now and in the future

. The evidence relevan t to the second factor includes Fathe r’ s drug use, d i scussed at length above. S ee Holley , 544 S.W.2d at 371

– 72 (pa rent’s drug use relevant to second factor) ; In re A.C. , 394 S.W.3d 633, 642 (Tex. App.

— Houston [1st Dist.] 2012, no pet.) (concluding that pas t and ongoing drug use weighed in fav or of conclusio n that termination of paren tal rights is in child ’ s best inter est). Father’s extensive use of crack cocaine in the years leading up to the
term ination proceedings, and his continued use of crack cocaine d uring the pendency of the proceedings , “ show[s] a pa t tern of conduct that subje cts [the] child[ren] to an uncertai n and unstable life, endangering the[ir] physical and emotional well

- being.” In r e G.A. , No. 01

- 11

- 00565

- CV, 2012 WL 1068630, at *6 (Tex. App.

— Hou ston [1st Dist.] Mar. 29, 2012, p et . denied) (me m . op.). This evidence weig hs in favor of the trial court’s be st

- interest fin ding. Also relevant to the second factor is Father’s criminal reco rd

. A parent’s repeated arrests and incarcerations is evidence that the parent will be unable to

s at isfy his chil d ren’s emotional and physic al needs. See In re T.G.R.

- M. , 404 S.W.3d at 15 (n oting that each time moth er was jailed, she was absent from child ’ s life and unable to provide for child ’ s physical an d emotional nee d s) ; see also In re K.R.G. , 2016 WL 7368082, at *11 (evide nce of repeated of repeated arrests and incarcerat ions can suppor t trial court ’ s best

- interes t finding). Her e , Father’s24

criminal re cord includes at least five convictions and even more arrests

— including the arrest resulting in the Department referral accus ing Father and Mother of physical neglect and negl ectful supervis ion of Kevin. That arrest , F at her explained at trial, was for a pr obation violation. The underlying charge was possession of crack cocaine, which, Father further explained, he “ took ” to prote ct Mother from going to jail while pregnant with K evin

. This evid ence weighs in favor of the tr ial court’s b e st

- interest finding. F urther evidence relevant to the second factor includes the condition of the hotel room in which Father, Mother, and Kevin were found living. The Department’s report described the room as cov ered in dog feces and trash. I n re K.R.G. , 2 016 WL 7368082, at *1 0 (considering “very dirty” and “unsanitary” condition of home in which children were found in determining whether parent could satisfy child ren’s physical and emotional needs) . The unsanitar y condition of the hotel roo m weighs in fav o r of the trial court’ s best

- interest finding. Third factor

— the emotional and physical danger to the children now and in the future

. The evidence relevant to the second factor is also relevant to t he third factor . To repeat, this evidence i nc ludes: (1) Fa t her’s drug use , s ee Ho lley , 544 S.W.2d at 371

– 72 (parent’s drug use relevant to third factor) ; In re A.C. , 394 S.W.3d at 642 ( same ) ; (2) Father’s criminal record, In re K.R.G. , 2016 WL 7368082, at *10 (parent’s c riminal record relevant in d et ermining emot i onal and25

physical dang er to children); In re V.V. , 349 S.W.3d 548, 554 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied) (“Intentional criminal activity that expo ses a parent to incarceration is co nduct that enda ngers the physical and th e emotional

w e ll

- being of a child.”); and (3) t he unsanitary condition of the hotel room in which Father, Mother, and Kevin were found living. T his evidence supports the trial court ’s best

- interest finding. Fourth factor

— the pare ntal abilities of the i nd ividuals seek i ng custody

. T he evidence re levant to the fourth factor includes some of the evidence discussed above , namely: (1) Father’s drug use , s ee Holley , 544 S.W.2d at 371

– 72 ( parent’s drug use relevant to fourt h factor) ; In r e K.P. , 498 S.W.3d 157, 1 74 (Tex. App.

— Houston [1st Dist.] 2016, p et. denied) (“inability to remain sober” relevant to fourth factor) ; and (2) the condition of the hotel room , s ee In re K.R.G. , 2016 WL 7368 082, at *11 (condition of home rele vant to assessi ng parental ability). A ga in,
t his evid e nce weighs in favor of the trial court’s best

- interest finding. Fifth factor

— the programs available to assist the individuals seeking custody to promote the best inter est of the child ren . T he trial cour t may properly consider whether the pa re nt complied w i th the court

- ordered servic e plan for reunification with the child. See In re E.C.R. , 402 S.W.3d 239, 249 (Tex. 201 8)

. Father’s compliance with certain court

- ordered t asks during the termination proceed ings weighs in his favor and against the trial court ’s best

- interes t finding.26

How ever, the evidence shows that he was unable to comply with the plan’s most important requir ements

— to refrain from illegal drug use and to pr ovide a drug

- free environment for h is children. Th is evidence weighs in favor of trial co urt’s best

in t erest finding

. Sixth factor

— the plans for the children by the individuals seeking custody

. Because Moth er’s prior termination made it more likely that he r parental rights to the children w ould be termina ted in this case, Mother and Father b eg an living sep a rately, reaso ning that the arrangement would make it more likely that at least Father’s rights would no t be terminated. But when asked who would care for the children while Father was at w ork in the even t the children were returned to Fathe r a lone, Father testified tha t Mother would care for him, demonstrating that Father did not have a realistic plan in place for the care of the children. In contrast, the foster father had enrolled the chi ldren in daycar e, which provided suitable care for t he children whi l e the foster father was at work. This evidence weigh s in favor of the trial court’s best

- interest fi nding. Seventh factor

— the stability of the home or pr oposed placement

. The evidence rel evant to the se venth factor includes , once again, Fa th er’s drug use and the condit ion of the hotel room in which Father, Mother, and Kevin were found living. The eviden ce also includes Father’s failure to provide the casew orker of proof of stable housing. Although Father claimed to be living with his brothe r and27

brother’s teenage son in their apartment, Father admitted that he never provided the caseworker with the lease agreement and never informed her of the address so sh e could inspect the premises. This evidence suppo rt s the trial court’s best

- interest fi nding. In co n trast, t he case worker and advocate both testified that the foster father provided the children w ith a stable, loving, and drug

- free environment. They furth er testified that the foster fath er had demonstr ated his commitment to the children b y taking them b a c k after the fa iled placement with the children’s godparents. The evidence that the children’s foste r father intends to adopt them and provide them with a stable and permanent placement su pports the tria l court’s finding. See In re Z.C. , 28 0 S.W.3d 470, 4 7 6 (Tex. App.

— Fo rt Worth 2009, pet. denied) (stating that stability and permanence are important to upbringing of child and affirming finding that terminati on was in child’s best interest w hen child was
t hriving in foster care ). We hold tha t there is lega l l y and factuall y sufficient evidence to support the trial court’s finding that termin ation of Father’s parental rights to Kevin and to Karen was in the chi ldren’s best interest. We overrule F ather’s fourth issue.

Termination of Mother ’s Rig ht s Mother’s cour t

- appointed a ppellate counsel has moved to withdraw and has28

filed an Anders brief, stating that, in his professional opinion, the appeal is without merit , and there a re no arguable grounds for reversa l. S ee Anders , 386 U.S. at 744. Anders pr oc edures are ap p r opriate in an appeal from a trial court’s final order in a parental

- rights termination suit. In re K.D. , 127 S.W.3d 66, 67 (Tex. App.

— Houston [1st Dist .] 2003, no p et.). Counsel has certi fied that h e de livered a copy of the brief to Moth er a nd informed h e r of h er rig ht to examine the appellate record and to file a response. See In re Schulman , 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Mother did not ti mely file a r esponse and the Departm ent waived its right to respond. The brief submitt ed b y Mother ’s ap p o inted appel late counsel states his professional opinion that no arguable grounds for reversal exist and that any appeal would therefore lack merit. See Anders , 386 U.S. at 744. Counsel’s brief meets the minimum Anders requirements by pre se nt ing a profess i o nal evaluat ion of the record and stating why there are no arguable grounds for reversal on appeal. See id. ; Schulman , 252 S.W.3d at 406

– 07. When we rec eive a n Anders brief from an appoint ed a ttorney who asserts that no arguable gr ou nd s for appeal e x ist, we determine independently whether arguable grounds exist by conducting our own review of the entire record. Johnson v. Dep’t of Family & Protective Serv s. , No s. 01

- 08

- 00749

- CV & 01

- 08

- 0075 0

- CV , 2010 WL 5 186806, at *1 (Tex. App.

— Hou st on [1st Dist.] D e c. 23, 2010, no pe t.)29

(mem. op.); see In re K.D. , 127 S.W.3d at 67; In re D.E.S. , 135 S.W.3d 326, 330 (Tex. App.

— Houston [14th Dist.] 2004, no pet.). If we de termine that arguable grounds for ap peal exist , we abate the appeal and remand the ca se t o the trial c o u rt to allow the appointed attorney to withdraw. See Johnson , 2010 WL 5186806, at *2. Then, the trial court appoints another attorney to present all argu able grounds for appeal. See id. On the other hand, if our independent review of the re co rd leads
us t o conclude tha t the appeal is frivolous, we may affirm the trial court’s judgment by issuing an opinion in which we explain that we have reviewed the reco rd and fin d no reversible error. See id. Here, we have independently reviewed the recor d and conclude that there are no arguable grounds for review, that no reversible error exists, and therefore Mother ’ s appeals are frivolous. See Anders , 386 U.S. at 744 ; In re A.M. , 495 S.W.3d 573, 582 ( Tex. App.

— Houston [1 st Di st.] 2016, pet. den ied). Accordingly, we affirm the trial court ’ s decree s terminating Mother ’ s parental ri ghts to Kevin and Karen. However, we deny Mother ’ s counsel ’ s motion to withdraw because thi s is a parental termination case. See In re P.M. , 520 S.W.3d 24, 27 (Tex. 2016) ( holding that Anders brief in parental termination is not “good cause” sufficient to justify counsel ’ s withdrawal); In re A.M. , 495 S .W.3d at 582 (same). Counsel ’ s duties to hi s client extend through the exhaustion or waiver of “all appeals.” T EX . F AM .30

C ODE § 107.016 ( 3 )(B)

. If Mother chooses to pursue a petition for review to the Supreme Court of Texas, “appointed counsel’s obligations can be satisfied by filin g a petition fo r r eview that satisfies the standards fo r an Anders brief

. ” In re P.M. , 520 S. W.3d at 27

– 28. C onclusion We affirm the decrees of the trial court.

Laura Carter Higley Justice Panel consists of Chief Justice Radack and Ju stices Higley a nd High tower
.