### IN THE TENTH COURT OF APPEALS

No. 10 - 21 - 00176 - CV IN THE INTEREST OF K.B.D., A CHILD
From the 74th District Court

McLennan County, Texas Trial Court No. 2020 - 1390 - 3

MEMORANDUM OPINION
In one issue, t he f ather ( “ Father ” ) of K.B.D. appeals the termination of his parental rights

. Father argues that the Department of Family and Protect ive Services ( “ the Depar t m ent ” ) presented no evidence or fac tually insufficient evidence to prove that termination was in the best interest of K.B. D. Father does not contest the trial
court ’ s finding that he violated § 161.001(b)(1)(O) of the Family Code. See T EX
. F AM
. C ODE A NN
. § 161.001(b) (1)(O). We will affi rm.F ACTUAL AND P ROCEDURAL B ACKGROUND The Department began an investigation in March 2020 after a referral from law enforcement

. The mother ( ” Mother ” ) of K.B.D. was stopped for a traffic violati on . 1 N arcotics paraphernalia and a machete were fou nd i n her vehicle , alon g with K.B.D. and one of his siblings

. At that time, K.B.D. was four years old. T he Depart m ent determined after i ts initial investigation that Mother had voluntarily left all the childre n in the custody of their maternal grandmothe r . When the Department investigator interviewed Mother , Mother r epor ted that she had numerous mental health issues and an ongoing history of methamphetamine

use . Mother also complained that Father was using drugs and alcohol and that he had

com mitted act s of domestic violence. During the course of the Department ’ s inves tigation , Mother evaded all requests for drug tests. However, Mot her was on probation 2 at the time of the investigation . Mother was required to complete drug testing as a term of her prob a ti on and tested po sitive for both methamphetamine and marijuana. Mother was arrested for engaging in organized crimi nal activity in May 202 0 while the investigation was ongoing , and the children were placed under the Department ’ s conservatorship . Mother pl eaded guilty to en gagin g in organized crim inal act ivity pursuant to a plea agreement and was incarcerated in the Texas

1 Mother has two other children by two different men

. Mother ’ s parental rights to all three ch ildren were terminate d as part of t his procee ding , and she has not appealed. The father of one of the other children is deceased. T he final father ’ s parental rights were also terminated , and he ha s not appeal ed

.
2 The record is unclear whether Mother was on probation or par o le. The Depa rtment inv estigator testified that the information re garding the drug tests was provided by Mother ’s probation office r. The Final Report to the Court prepared by the Department and admitted as State ’s Exhibit No. 1 at the final termi nation h e aring reflect s that Mot her was on parole at the time the report wa s prepared.In re K.B.D. Page 3 Department of Criminal Justice

- Correctional Institutions Divisi on for a term of fifteen years . The Department ’ s caseworker testified tha t Mo ther ’ s projected release date is 2035. Father was paroled in January 2020 after serving a two
- year sentence for e vading

arr est and aggravated assault with a deadly weapon. Father ’ s pro jected release date from parole is January 2022. The Department inv estigator spo ke with Father shortly after the initial refe rral

. Father told the investigator that he was un able to care for K.B.D. at that time. Father was unemployed and did not have a stable residence that the Department could verify

. Father sugge sted his sister ( “ Aunt ” ) as a caretaker for K.B.D. K .B.D. was first placed with his maternal grandmother and then with Aunt and her husband after K.B.D. displayed behavioral issues. The other children remained with their maternal grandmother. Aunt and h er h usband s ought to ado pt K.B.D. Shortly before the final termination hearing, Aunt and her husband separated after a n incident of d omestic violence. Aunt remained willing to adopt K.B.D. after the separation , testifying th at her husband was no longer p art of the adoption plan

. The Department case worker believed that K.B.D. was safe with Aunt and had bonded with Aunt

. Father r eported that he had no conta ct with K.B.D. while he was incarcerated

. Father testified that he had a “ fluid ” co - parenting arra ngem ent with Mother until 2017 when he reported her to the Department. After th at, he noted that their “ relationship

w ent down the drain , ” ending the “ fluid ” co - parenting. Father reported Mother to the Department again in 2018, but the Department took no act ion in either 2017 or 2018.In re K.B.D. Page 4 Father initially re fused to cooperat e with th e Department , including drug testing,

as he believed that the re moval of the children was due to Mother ’ s action s. Father eventually signed a family service plan , but failed to com ple te the requirements : h e did not maintain a safe and stab le home; he did not maintain employ ment; he was incarce rated twice for parole v iolations; he did not keep in regular communicat ion with the Department ’ s case worker; he tested positive for m et hamp hetamine and failed to comply with requests for drug testing; he did not complete an evaluation fo r mental health a nd substance abuse; he did not c omplete counseling; he did not begin a nger

m anag e men t classes; and he failed to maintai n regular communic atio ns with K.B.D. A UTHORITY B URDEN OF P ROOF In a proceeding to terminate the parent

- child relationsh ip brou ght under § 161.001 of the Family Code, the Department must establish by clea r and convincing evidence two elements: (1) that the respondent par ent commit ted one or more acts or omissions enumerated under subsection (b)(1) of § 161.001, termed a predicate violation, a nd (2) that termination is in the best interest of the chil d. T EX
. F AM
. C ODE A NN
. § 161.001(b) (1), (2) ; Swate v. Swate , 72 S.W.3d 76 3, 7 66 (Tex. App.

— Waco 2002, pet. denied). Th e factfinder must find that both elements are establishe d by clear and convinci ng evidence, and proof of one element does not relieve the petition er of the burden of proving the other. In re A.B

. , 437 S.W.3d 4 98, 50 5 (Tex. 201 4); Swate , 72 S.W.3d at 7 66. “Clear and convincing evidence” is defined as “th at measure or de gree of proof which will produce in the mind of the trier of fact a firm beli ef or conviction asIn re K.B.D. Page 5 to the truth of the allegations sought to be es tabl ished. ” In re G.M. , 596 S.W.2d 846, 847 (Tex. 1980) (quoting State v. Addington , 588 S.W.2d 569 , 570 (Tex. 1979) ( per curiam ) ). S TAND ARD OF R EVIEW The standards in terminatio n cases are well established. See In re J.F.C. , 96 S.W.3d 256, 26 6 (Tex . 2002) (legal suffic iency); see also In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). In reviewing the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the finding to determine whether a trier of f act could reasonably have form ed a firm belief or conviction about the truth of the Department's allegations. In re J.L. , 163 S.W.3d 79, 8 5 (Tex. 2005); J.F.C. , 96 S.W.3d at 26 6. We do not, however, disregard undisputed evidence that does not support the finding. J.F.C. , 96 S.W.3d a t 266. In reviewing the factual sufficiency of the evidence, we must give due consideration to eviden ce that the factfinde r could reasonably have found to be clear and convincing. Id

. We must consider the disputed evidenc e and determine whether a

reas onable factfinder could have resolved that eviden ce in favor of the finding. Id

. If the disputed evide nce is so significant tha t a factfinder could not reasonably have formed a firm belief or conviction, the evidence is fact ually insufficient. Id

. Wh en no findings of fact or conclusions of law are filed following a bench trial, the t rial court's judgme nt implies all findings necessary to support it. See In re D.Z. , 583 S.W.3d 284, 295 (Tex. App.

— Houston [14th Dist.] 2019 , no pet.) (citing Pharo v. Ch ambers C nty
. , 922 S.W.2d 945, 948 (Tex. 1996)); see also In re Marriage of Price , No. 10

- 14

- 00260

- CV, 2 015 WL 6119457, at *3 (Tex. App.

— Waco Oct. 15, 2015, no pet.) (mem. op.). WhenIn re K.B.D. Page 6 a reporter's record is filed, th ese implied findings are not conclusive, and an appellant may challenge them by raising both legal and factual sufficiency of t he evidence issue s. In re G.B. II , 357 S.W.3d 382, 385 n.1 (Tex. App.

— Waco 2011, no pet.). We give due deference to the f actfinder's findi ngs and must not substitute o ur judgment for that of the factfinder. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006). T he factfinder is the sole judge “of the credibility of the witnesses and the weight to give their testimony.” Jordan v. Do ssey , 325 S.W. 3d 700, 713 (Tex. App.

— Housto n [1st Dist.] 2010, pet. denied). The factfinder may choose to believe one witness and disb elieve anoth er. City of Keller v. Wilson , 168 S.W.3d 802, 819 (Tex. 2005). Although a factfinder is free to disbelieve tes timony, “in the absence of competent evi dence to the contrary, it is not authorized to find that the opposite of the testimony is true .” In re F.E.N. , 542 S.W.3d 752, 76 4

- 6 5 (Tex. App.

— Houston [14th Dist.] 2018), pet. denied , 579 S.W.3d 74 (Tex. 2019) ( per cu riam )

. B EST I NTEREST As noted, Fath er challenges only the best interest finding. “ [ T ] he re is a stro ng presumpti on that th e be st interest of a child is served b y k ee ping the child with a parent. ” In re R.R. , 209 S.W.3d 112, 116 (T e x. 20 06); T EX
. F AM
. C ODE A NN
. § 1 53.131(b). However, “ the right s of natural parents are not absolute , “ and the “ rights of parenthood are accorded only to those f it to accept the accompanying responsibilities. ” In re A.V. , 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T. , 872 S.W .2d 189, 195 (Tex. 1994))

.

“ P rompt , permane nt placement of the ch ild in a sa fe en vir onmen t is als o pr esumed to be in the child’ s b est interest. ” In re L.N.C. , 573 S. W. 3 d 309, 315 (Tex. Ap p. — HoustonIn re K.B.D. Page 7 [14th Dist.] 2019, pet. den ied) ; T EX
. F AM
. C ODE A NN
. § 2 63.307(a). The foc us of the best interest a nalysis is what is be st for the c hild , no t what is bes t for t he parent

. See I n re C.V.L. , 591 S.W.3d 734, 753 (Tex. App.

— Dallas 2019, pet. denie d)

. In d etermining the b e st interest of a child, a number of fa c to rs have been

c onsid ered , including (1) the desires of the child ; (2) the emotional an d p hys ical needs

o f th e chil d now and i n the f uture; (3) t he emotional and physical danger to the child

now and i n the future; (4 ) the parental abilities of the individ u al s seeking cus t ody; (5) the programs available to assist these i ndividuals; (6) the pl ans fo r the child by t h e se i ndivi duals; (7) th e stability of the home; (8) the acts or omissions of the par e nt th at may indicate t he existing parent

- child relationship i s not a proper o ne; a nd ( 9) any excuse for the acts or omissions of the parent. Holley v. Ad ams , 544 S.W .2d 367, 37 2 (Tex. 1976)

. This list is not exhaust ive, but simpl y indicative of fa ctors that have been or could be pertinent. Id

. ; C.H. , 89 S.W.3d at 2 7

. The court d oes not require evidence on each factor in order to make a valid finding a s to the child’s best inter est. I n re J.M .T ., 519 S.W.3d 258, 268 (Tex. App.

— Hous ton [ 1st Dist. ] 2017, pet. denied) ; A.L.H. , 515 S.W.3 d at 79

. “[A ] si ngle factor may b e adequate in a part icular factual situat ion to support a finding that termination is i n the best interest of the child.” J.M.T. , 519 S. W.3d at 268

. A parent's history, admissions, conduct relating to drug abuse, and inability to maintain a lifestyle f ree from arrests and i ncarcerations are r elevant t o the best

- interest determination. In re D.M. , 58 S.W.3d 80 1, 814 (Tex. App.

— Fort Worth 2001, no pet.). Evidence of a rec ent improveme n t do es not absolve a p arent of a history of irr esponsible cho ices. S ee Smith v. Tex. Dep't of ProtectiveIn re K.B.D. Page 8 & Re g ulatory Servs. , 160 S .W .3d 673, 681 (Tex. App.

— Austin 2005 , no pet.); see also In re T.C. , No

. 10

– 1 0

– 0020 7

– CV, 2 0 1 0 WL 4983512 , at *8 (Tex. App.

— Waco Dec. 1, 2010, pet. denied) (mem. op.). The factor s weighing hea viest against Fa ther a re his present and future inability
to meet the physical and emotional needs of K.B.D. an d his present an d future dangerousness to K.B.D. “ Just as it is imperative for courts to recognize the constitutional under pinnings of the paren t
- child relat ionship, it is also essential that emotional and physical interests of the child not be sacrifi c ed merely to preserve that right. ” Jordan , 325 S.W

. 3d at 72 9

. D ISC USSION As previously noted, Fa ther has been incarcerated on one charge or anoth er for

over half of K. B. D. ’ s life. F ather was incarcerated for two years beginning in 2018 after being convicted of evading arrest and aggravated ass ault with a deadly weapon. While the present case was pe nding, Father was jailed twice for parole violati ons for a total of

a pp roximately six m onths. Father was a ls o jailed for sixty days in 2009 for making a terroristic threat and for 240 days in 2014 for assault family violence terroristic threat. Father testified that he had also previously been arrested for evading arre st wi th a vehicle. Father stated that he “ takes responsibility ” for his actions, but he denied that his own actions caused his legal problems. Fathe r ’ s criminal history reflects a his tory of assaultive behavior, although there w as no evi dence that he had ever harmed K.B.D. Father faile d to attend anger mana gement classes that were mandated by the Department and by his parole office r . Father threatened Aunt in a telephoneIn re K.B.D. Page 9 convers ation from jail. Fa ther told her that he was going to take K.B.D. when he got ou t and that Aun t better ha ve her “co p buddies ready. ” Father admitted that he used methamphetamine in December before he was sent to an intermediate sanction facility ( “ ISF ” ) after violating his parole. Father also admitted that he used metham phetamine and mari j uana in March or Ap ril of 2020. Father refused numerous drug te sts after being released from ISF , shaving his body hair so he could not be subjected to a hair strand test. Father testified that while incarcerated in ISF, he had class es in pare nting, anger management, and drug intervention , and he presented as an exhibit a certificate that he had completed a cognitive intervention treatment program

. However, Father displayed poor impulse control during the fi nal terminatio n hearing. The trial judge repeatedly had to admo nish Father for inappropriate behavi or -- laughing , nodding, and shaking his head during others ’ testimony, and talking out of turn. While a pare nt ’ s imprisonment is not by itself a ground for terminatio n, a parent ’ s imprisonm ent can negatively impact a child ’ s emotional well

- being. In re J.F.

- G. , 612 S.W.3d 373, 388 (Tex. App.

— Waco 2020 ), aff ’ d , 627 S .W. 3d 304 ( Tex. 2021). Criminal activity, convictions, a nd incarceration s are a mong the types of action s o r omission s that sub ject a child to a life of unce rtainty a nd instabi l ity. Se e In re J.M.G. , 608 S.W.3d 51, 57 (Tex. App.

— San Anto nio 2020, pet. denied) ( parent ’ s lengthy absence from child ’ s life during early years due to incarceration cre ates emotion al vacuum thr eatening c hild ’ s emotional well

- being); see also In re J.G.S. , 550 S.W.3d 698, 706 (Tex.In re K.B.D. Page 10 App.

— El Paso, 2018, no pet.) ( “ A parent ’ s incarceration is relevant to his ability to meet the child ’ s present and future physical and emotional needs. ” )

. A parent ’ s illegal drug use is also the type of behavio r that can negatively impact a child ’ s emotional well

- being. D.M. , 58 S.W. 3d at 814. Substance a buse “ can q ualify as a voluntary, deliberate, and conscious course of conduct endangering the c hild ’ s well

being

. ” In re K.H. , No. 10

- 21

- 00073

- CV, 2021 WL 40 8 0 261, at * 4 (Tex. App.

— Waco Sept. 8, 2021, pet. denied ) (mem. op.). See also In re M.R.R. , No. 1 0

- 15

- 00303

- CV, 20 16 WL 192583, at *5 (Tex. App.

— Waco Jan. 14, 2016, no pet. ) (mem. op. ) ( “ A parent' s co ntinued d rug use demons trates an inability to provide for the chi ld's emo t ional and physical needs and to pr ovide a stable environment for the child. ” ); In re K. B. , No. 05

- 17

- 00428

- CV, 2017 WL 4081815, a t *4 (Tex. App.

— Dalla s Sept. 15, 2017, no pe t.) ( mem. op. ) ( “ contin ue d use of illegal drug s in the face o f the threat of a parent ’ s loss of his parental ri ghts is cond uct showing a volun tary, deliberate, and consci ous course of conduct, whic h by its natur e , endangers the child ’ s well

- bein g. ” )

. A factf inder ma y reasonab ly i nfer from past conduc t tha t endang ers a child ’ s well

- being that similar con duct will r ecur if the child is returned. In re W

. S. , No. 10

- 17

- 003 18

- CV, 2018 WL 1528460, at *4 (T ex. App.

— Wa c o Mar. 2 8 , 2018, no p et.) (mem. o p.)

. See Ray v . Burns , 832 S .W. 2d 431, 4 35 (Tex. App.

— Waco 19 92, n o writ) ( “ P ast is often prologue

. ” )

. The trial court could reasonably con clude that Father ’ s criminal behavior and d rug use would continue in the future.In re K.B.D. Page 11 We find that the evidence was legally and factu ally suf ficient to support the trial
court ’ s finding that ter mination was in the best interest of K.B.D. We overrule Father ’ s sole issue. C ONCLUSION Having overruled the sole point on appeal , we affirm the judgment of the trial
court.

MATT JOHNSON Justice

Before Ch ief Justice Gray, Justice Joh nson, and Ju stice Smith, A ffirme d Opinion delivered and filed December 22, 2021 [CV06]