1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

__________________ NO. 09-21-00376-CV

__________________

IN THE INTEREST OF E.K.H.

________________________ ______________________ ____________________ On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 20-08-09866-CV

________________________ ______________________ ____________________ MEMORANDUM OPINION Does evidence that none of Mother’s fo ur children lived with her, that Father and Mother are in an abusive relationshi p, that Mother admitted she has a prior criminal conviction for endangering one of he r other children, and that Mother failed to comply with the requirements of her Family Service Plan offer legally and factually sufficient evidence to suppor t the trial court’s order that Mother endangered Emilio , her eighteen-month-old son? 1 Mother appealed from the order

1 We use pseudonyms for the names of the minor and those of his family to protect the minors’ identities. Tex. R. App. P. 9.8 (allowing courts to protect the identities of minors in parental -rights termination cases).2 and argues the evidence is insufficient to support the trial court’s findings terminating her relationship w ith Emilio and to support the trial court’s best-interest finding. 2 But after reviewing Mother’s argument s, we conclude the record containssufficient evidence to support the trial court’s findings on endangerment and its bestinterest finding, and for those reasons will affirm. Background In August 2021, the Department’s suit ag ainst Mother and Father was called to trial. Mother and Father appeared and testified in the trial. Along with their testimony, the trial court heard from five ot her witnesses: (1) Ashley Wiseniske, an investigator formerly employed by Child Protective Services; (2) Rosalind McCray, the caseworker the Department assigned to Emilio’s case; (3) Officer Rai Duenas, a certified peace officer employed by one of the constable offices in Montgomery County; (4) the CASA supervisor, who tes tified that she met w ith Emilio’s parents and that in July 2021, she visited their home; and (5) the CASA , assigned to Emilio’s case as of May 2021, who testified that, in he r opinion, it was in Emilio’s best interest for the court to terminate his relationship with Mother and Father.

2 The trial court terminated Mothe r’s rights on three predicate grounds, condition endangerment, conduc t endangerment, and for fa iling to comply with the provisions of a court-ordered Family Service Plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O). The trial court also found that terminating Mother’s parent-child relationship with Emilio is in Emilio’s best interest. Id . § 161.001(b)(2).3 When Mother and Father testif ied, they explained that they have three children together, Henry (who is five), David(who is three), and Emilio (the eighteen-monthold child, and the subject of this proceedi ng). Besides the children Mother has with Father, Mother testified she has a son Freddie , age six. Of the children Mother and Father have together, however, none curren tly live with the parents in their home. When the trial occurred, Henry (based on his placement by the Department) was living with Father’s mother, David (based on his placement by the Department) was living with Mother’s sister, and Emilio (b ased on his placement by the Department) was living in foster care. 3 As to Henry, Mother testifie d that when she sees him, her visits are supervised. Turning to Freddie, Mother’s oldest child, Mother explained that Freddie lives with his biological father . Mother testified she has not seen Freddie in four years. According to Rosali nd McCray, the caseworker assigned by the Department to Emilio’s case, Mother told her that a court order limits the Mother’s rights to see Freddie. 4 For her part, Mother testified she has the right to legally see

3 At trial, the Department failed to de velop a record that explains why the Department removed Henry a nd David from Mother’s home. Instead, the evidence merely shows that Henry a nd David were removed and placed with members of Mother’s and Father’s family . At trial, Father testifie d Henry has been living with his Mother for nine or ten months. So even though the record is unclear about why the children were removed, it appears from Father’s tes timony that the Department’s suit as to Henry’s case was filed in Octobe r or November 2020, three or four months after the Department sued Mother and Fa ther to terminate their rights to Emilio. 4 During the trial, the attorney represen ting the Department neither offered the court order that McCray referred to when she testified, nor did the Department’s attorney introduce the order of removal that limits Mother’s rights to visit or contact4 Freddie, she simply has not done so in the pa st four years. As to David, the CASA testified Father told her that he and Moth er have not had cont act with David. And Father explained that until sh ortly before the trial, he did not know where David was and had not known “[f]o r quite a while.” During Mother’s testimony, Mother ad mitted she had been sentenced to prison after she was convicted of cred it card abuse and for endangering a child. According to Mother, she was taken to prison around six weeks after Emilio was born and after the trial court revoked the order the trial court issued when it placed Mother on community-supervision after sh e pleaded guilty to indictments charging her with “credit card abuse and child enda ngerment.” Mother explained the case on the child-endangerment charge arose fro m conduct when she was with Henry. 5
And while the evidence before the tria l court was not we ll developed, the record does contain some evidence that tends to show Mother and Father are in an abusive relationship, a dynamic that has existed for many years. According to

Freddie to impeach Mother’s testimony that seems to suggest that seeing Freddie is no more than a voluntary deci sion that she can change. 5 The attorney for the Department didn’t offer a certified c opy of the judgment into evidence of the convictions in either Mother’s credit card abuse case or Mother’s child endangerment case. See Tex. Penal Code Ann. § 22.041 (Abandoning or Endangering a Child), § 32.31 (Credit Car d or Debit Card Abuse). The better practice would be for the Department’s a ttorneys to obtain certified copies of the judgments of convictions rele vant to the Department’s cas es so the records in their cases don’t depend on a parent’s testimony about the statute or statutes relevant to the parent’s conviction.5 Mother, Father hit her for the first time in 2017 or 2018. Mother testified Father was arrested at that time. According to Moth er, the prosecutor, at Mother’s request, dropped the charges that were filed agains t Father for hitting her when she appeared in court. Besides the incident in 2017 or 2018, Mother testified that in April 2021, after escaping from Father’s car and entering the mall, she told a police officer who came to the mall that Father had assaulted her th at day. According to Mother, an employee Mother encountered in the mall called 911 after Mother , while crying, told the store employee that Father hit her. Mother told the officer to whom she spoke she was afraid of Father, that Father hit her, had choked her, and that she was “scared of him and his violence.” During the trial, Mother was questioned about what happened to Father after she reported the incident to police at the mall. Mother admitted that she told the officer that Father choked her, admitted she told the officer she was scared of Father, and admitted she told the officer she was afraid of Father’s violence. Even so, Mother then claimed that she overly drama tized what had really occurred, claiming she did so merely to enlist the officer to he lp her keep Father away from her that day. According to Mother, police arrested Father based on the report she filed. Even though Mother agreed the report she filed le d to Father’s arrest, Mother testified she6 is now “working with [Father’s] attorney to get [the charges she filed] dismissed.” 6
Mother denied her marriage to Father involves domestic violence, and she testified see needs no help to stay safe. Officer Ray Duenas, who stopped Father’s car, testified he saw Father driving a car and stopped him for violating a tra ffic law. After stopping Father, officer Duenas searched Father’s car, found mariju ana inside, arrested Father, and charged him with possession. 7 At trial, Officer Duenas testified that he was concerned for the child in Father’s car because Father said , “he was smoking inside of the vehicle.” During the stop, Father told Officer Duen as that Mother was in prison. Because Officer Duenas was concerned about the possi bility that the smoke might have affected the child, he called for a medic, who came to the scene and checked out the child. Officer Duenas explained that af ter the medic checked Emilio, Emilio was

6 Apart from Mother’s brief and her ra ther vague testimony, the record contains little other evidence showing what occurred at the mall or about the event that led to Mother reporting Father to th e police. When the Department’s attorney questioned Father about whether Father hit Mother, threatened her, or assaulted her in any way, he said “No.” The Department’s attorney ma de no effort to impeach Father, such as by introducing the records of his arrest, the 911 call that caused police to go to the mall, calling the o fficer who spoke to Mother at the mall, or offering the official report filled out by the officer to w hom Mother spoke at the mall. The record also does not show if Father has been in dicted by a grand jury as a result of the complaint Mother filed with the police about the incident Mother reported at the mall. 7 Officer Duenas did not charge Father with driving while intoxicated nor did the officer testify that Father did not seem to have the normal use of his mental or physical faculties during the stop.7 released from the scene. Because Emilio had no one to take him home, Officer Duenas took the child to his office. He called Child Protective Services and asked that agency to send someone to come pick the child up. The day after Father was a rrested for possession of marijuana, the Department sued Mother and Father and sought an emer gency order asking the trial court to give the Department the authority to take Emil io, temporarily, into custody. In the same petition, the Department asked the trial c ourt to name the Department as Emilio’s temporary managing conservator. The petition also asked the trial court to terminate Mother’s and Father’s parental rights on several grounds, whic h includes sections 161.001(b)(1)(D) and (E), if the child could not safely be reunite d with his parents. In due course, the trial c ourt, by order, named the De partment Emilio’s temporary managing conservator. In October 2020, the trial court, by or der, required Mother and Father to comply with a Family Serv ice Plan. The plan’s stated long-term goal was “Family Reunification,” but an alternative goal of “Unrelated Adoption” is listed as a concurrent goal in the plan. 8 About a month after the trial court ordered Mother and Father to comply with the Family Servi ce Plan, Mother was released from prison. Mother testified that after she was released from prison, she moved to Fort Worth.

8 The record shows the Department neve r amended the Family Service Plans.8 When Father testified, he explained he works as a contract laborer, building fences, pouring concrete, and working on sh rimp boats. More r ecently, Father said his work has involved providing janitorial services in the grea ter Dallas-Fort Worth area. Father also testified about his rela tionship with Mother. But when asked about domestic violence, Father denied having ever hit, assaulted, or threatened Mother. When asked whether he’d been contacted by authorities about allegations of domestic violence, Father testifie d: “I can’t recall, ma’am.” Turning to the stop, Father testified he was not smoking marijuana before he was stopped by Officer Duenas that day. And in the trial, Father minimized his past use of illegal drugs. According to Father, he has used nothing but marijuana in the past, claiming he began using that drug only a short time befo re he was stopped. 9 As to Father’s other two older children, Henr y and David, Father testified they have been “through the courts” and have been pl aced with members of his and Mother’s families. 10 But none of the attorneys questioned Father about the reasons leading to the Department’s removal of Henry and Davi d from their parents. That said, Father at one point appears to have suggested be ing homeless as the reason the Department took David into its care.

9 Father was never asked to define whether the peri od he was describing was a period of hours, days, weeks, or months. 10 The Department never authenticated or offered into evidence the court orders relevant to the cases th at involved Henry or David.9 At trial, Wiseniske, who worked for Ch ild Protective Services for about a year before leaving the agency in April 2021, testified she responde d to a call from her supervisor and then picked Emilio up from the Montgomery County Constable’s office before placing Emilio in a foster home. According to Wiseniske, the Department removed Emilio from his pare nts because the Department believed Emilio was being neglected by his parent s. On cross-examination, Wiseniske explained she was dismissed from Child Pro tective Services because she had an overwhelming workload, and because she c ould not fulfill the duties required of her by her employer. McCray, the CPS caseworker, testified that Mother and Father failed to complete several requirements of th eir respective Family Service Plans. 11 When asked about the Department’s plans, McCray testified that the Department’s longterm goal for Emilio is unrelated adoption. Even so, there was no evidence that Emilio’s current foster family, when the trial occurred, was willing to adopt him. McCray also testified that she asked Moth er and Father whether a relative might be willing to take Emilio, but they told her they “did not want him moved.” And while

11 Among the ways Mother failed to comp ly with her Family Service Plan, according to McCray, was that she failed to participate in the random drug tests the Department requested of her after it remove d Emilio and placed him in foster care. Mother’s plan—one of the ex hibits admitted at trial—required Mother to participate “in all random UAs and hair follicle tests requested by The Department.”10 McCray testified that she talked with Mo ther and Father about placing Emilio with a relative again more recently, and Mother and Father told her again they had no relatives who were willing to take Emilio. As to the rela tive that McCray said she contacted, McCray explained: “One of the relatives informed us that they already had one of the child[ren] and that they coul d not take another on e.” McCray testified the Department should, in her opinion, be named primary managing conservator of Emilio because his parents had not complete d their service plans and because Emilio is doing well, he is healthy. McCray also expressed her opinion that appointing the Department is “in [Emilio’s] best interest.” McCray testified the Department has concerns that domestic violence issues exis t between the parents, and she was critical of Mother’s failure to follow through with recommendations made by a counselor Mother spoke to who recommended that Mo ther attend classes on domestic violence. Even so, on cross-examination, McCray admitted the Depart ment never amended the Family Service Plan to add classes fo r either Mother or Father to attend on domestic violence to their plans. The CASA supervisor on Emilio’s case testified that, over the course of handling the case, she met with Mother, Father, and communicated often with the attorney ad litem who represented Emilio and with Child Protective Services. The supervisor explained that in July 2021, she visited Father and Mother in their home. Based on what she observed when visiting th e parents’ home, the supervisor thought11 from what she observed in the home the home would be one that was an appropriate one for a child. That said, the supervisor explained she has concerns about whether Emilio’s parents were truthful with her about the reasons they cancelled five earlier visits she scheduled to see the home, cance lling the visits on the basis the home had been damaged in a flood. But when the s upervisor saw the home, she said she saw nothing that appeared to have been damaged by a flood. The supervisor also mentioned that when visiting the parents, she asked Father several questions to rule out concerns she had about domestic violence given the history she had about Father’s conduct in th e past. When the supervisor asked Father about the incident Mother reported to police at the mall, she said Father told her “he didn’t have an excuse yet beca use he hadn’t talked to hi s attorney.” The supervisor testified Father also said that when he and Mother have altercations, his mother comes over, talks to his wife, and then tell s him to “take a walk and leave the home.” When asked for her opinion about Emilio’s be st interest, the s upervisor said she thought Emilio would best be served by the court terminating Mother’s and Father’s parental rights because Mother and Father failed to complete th e services required by their plans, failed to bond with Emilio, and that safety concerns existed for Emilio based on an ongoing history of domestic vi olence and instability in the parents’ home.12 The testimony of Emilio’s CASA also favors the trial court’s finding terminating Mother’s and Fath er’s relationship with Emilio. The CASA testified that until recently, Mother and Father had not vi sited Emilio in person. In the CASA’s opinion, the parents and Emilio had not bonded. The CASA put it this way: “[Emilio] doesn’t really have an idea who they ar e.” To be sure, the CASA acknowledged that Mother and Father exercised their visitation rights virtually (over the internet) given the limitations related to the Covid-19 pande mic. These restrictions were imposed for in-person visits in foster homes by the Department. Th e CASA expressed a concern that Mother and Father had not complied with the random drug testing required by their respective Family Service Plans, explaining that when their drug tests were scheduled, “they just never [t ook] place.” When asked for her opinion about terminating Mother’s and Father’s parental ri ghts, the CASA testified that in her opinion, terminating Mother’s and Fathe r’s parental rights is in Emilio’s best interest. Finally, the CASA addressed Emi lio’s current placement, explaining Emilio is a happy, healthy, and well-adjusted child. In the end, the trial court found that terminating Mother’s and Father’s parental rights is appropriate under subsec tions D, E, and O of the Family Code. 12 Along with these predicate findings, the trial court found that terminating Mother’s

12 See Tex. Fam. Code Ann. § 161. 001(b)(1)(D), (E), (O).13 and Father’s rights to Emilio is in his best interest. 13 Mother appealed from the trial court’s order. Father, however, did not. Standard of Review In a case terminating the relations hip between a parent and a child, the Department must prove that at least one of the statutory grounds for terminating the relationship exists and prove that terminati ng the relationship is in the child’s best interest. 14 Both the evidence presented to es tablish the grounds for termination and the best-interest finding must be proven by clear and convincing evidence

. 15 Clear and convincing evidence is the “measure or degree of proof that will produce in the mind of the trier of fact a firm belief or c onviction as to the truth of the allegations sought to be established.” 16 When, as here, the parent appeals complaining that th ere is not enough evidence to support the trial court’ s conduct endangerment or its condition endangerment findings, we review the evidence admitted during the trial and determine whether it allowed th e trial court, acting as a reasonable factfinder, to form a firm belief or conviction th e parent endangered the child. 17 In our review, we

13 See id. § 161.001(b)(2). 14

Id. § 161.001(b)(1)(A)-(U), (b)(2). 15 Id. § 161.001(b); In re J.L. , 163 S.W.3d 79, 84 (Tex. 2005). 16 Tex. Fam. Code Ann. § 101.007. 17

In re N.G. , 577 S.W.3d 230, 237 (Tex. 2019) (hol ding that in an appeal, the reviewing court must review the parent’s issues that complain about the conduct14 examine “the evidence in the light most fa vorable to the [trial court’s] finding to determine whether [the court, acting reasonably,] could have formed a firm belief or conviction that its finding was true.” 18 In deciding whether the evidence supports the findings challenged in an appeal, we consid er whether the inferences the trial court drew from the evidence are “reasonable and logical[.]” 19 And since the trial court, acting as a factfinder, may reasonably infer facts from proof of other facts if those inferences are also reasonable, we must assume “the factfinder resolved disputed facts in favor of its finding” for any findi ngs it could reasonably infer from the facts proven in the trial. 20
Because we assume the trial court ma de all findings requi red that match its verdict, we “disregard all evidence th at a reasonable factfinder could have disbelieved or found to have been incredible.” 21 Even though we disregard the evidence that a trial court could reasonabl y disbelieve, we do not disregard it when examining the record to see if it is suffi cient to support the findings the trial court made when terminating a parent’s rights. 22 Instead, when conducting a legalsufficiency review, we exam ine all the evidence and dete rmine whether the record

endangerment and condition e ndangerment findings based on the parent’s right to due process). 18 In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002). 19

In re E.N.C. , 384 S.W.3d 796, 804 (Tex. 2012). 20

In re J.F.C. , 96 S.W.3d at 266. 21 Id

. 22

Id

.15 shows a reasonable factfinder could have te rminated the parent’s relationship with her child after considering the evidence that favors the trial court’s findings and the evidence the factfinder could not have reasonably disregarded or ignored even though that evidence might have favored another ruling. 23 Mother also argues the evidence is f actually insufficient to support the trial court’s judgment. In conductin g a factual sufficiency review, we determine whether the evidence admitted at trial allowed a r easonable factfinder to form a firm belief or conviction that the facts the Department needed to prove to prevail are true. 24 In our review, we credit all evidence favorin g the Department on the claims on which it prevailed at trial if the evidence that supports that cl aim is clear and convincing. 25 But we also consider any evidence admitted during the trial that is contrary to the factfinder’s verdict to decide whether th e factfinder, in face of the conflicting evidence, could have resolved the dispute in the Department’s favor. 26 If the factfinder could not have formed a firm be lief or conviction that the Department’s claims were true in light of all the eviden ce admitted in the trial, we will find the evidence insufficient to support the verdic t, declare the verdic t unsupported by clear and convincing evidence, and order a new trial. 27

23 Id

. 24

Id

. 25 Id

. 26

Id

. 27

Id

.16 Besides challenging the predicate findings relevant to the subsection D, E, and O grounds, the grounds the trial court relie d on when terminating Mother’s rights, Mother argues the evidence is insufficient to support the trial court’s best-interest finding. When reviewing a best-interest fi nding, we measure th e evidence against the various factors listed in the Fa mily Code and those discussed in Holley

. 28 If the evidence conflicts on the question about whether terminating the parent-child relationship is in the child’s best inte rest, the factfinder may reasonably choose between the alternatives, a nd it may do so by weighing some evidence more heavily than it weighs other evidence in deciding what outcome will best serve the child’s interests. 29 Still, evidence relevant to predicate fi ndings is often also relevant to the factfinder’s best-interest finding, if th e evidence on the predicate finding is clear and convincing

. 30 Sufficiency of the Ev idence – The Condition Endangerment and Conduct Endangerment Findings In issues one and two, Mother argues the evidence is legally and factually insufficient to support the trial cour t’s findings of cond ition endangerment and conduct endangerment, the predicate grou nds for terminating a parent-child

28 Tex. Fam. Code Ann. § 263.307(b); Holley v. Adams , 544 S.W.2d 367, 371- 72 (Tex. 1976). 29 See In re A.P. , 184 S.W.3d 410, 414 (Tex. App. —Dallas 2006, no pet.). 30 Tex. Fam. Code Ann. § 161.001(b)(1), (2).17 relationship under subsecti ons 161.001(b)(1)(D) and (E). 31 While similar, the subsections are not identical. Under subsec tion D, the Department had to prove, by clear and convincing evidence, that Moth er knowingly placed or allowed Emilio to remain in conditions or surro undings that endangered his physical or emotional wellbeing. 32 Under subsection E, the Departme nt needed to prove, by clear and convincing evidence, that Mother knowingl y placed Emilio with a person or allowed him to remain in a condition with a pers on who engaged in c onduct that endangered Emilio’s well-being. 33 Under either subsection D or E, the term endanger means “expose to loss or injury; to jeopardize.” 34 Generally, a parent’s conduct that subjects a child to a life of uncertainty and in stability endangers a child’s physical and emotional well-being. 35 Often, evidence used to establish viol ations of subsections D and E overlaps. Subsection D doesn’t require evidence th at a parent engaged in conduct multiple times, and evidence that a parent engaged in either acts or omissions that endangered

31 Id. § 161.001(b)(1)(D), (E). 32

Id. § 161.001(b)(1)(D). 33 Id. § 161.001(b)(1)(E). 34

In re J.F.-G. , 627 S.W.3d 304, 313 (Tex. 2021) (quoting Endanger , W EBSTER ’ S N EW T WENTIETH C ENTURY D ICTIONARY OF THE E NGLISH L ANGUAGE 599 (1976)). 35 See In re J.O.A. , 283 S.W.3d 336, 345 n. 4 (Tex. 2009) (citing In re R.W. , 129 S.W.3d 732, 739 (Tex. App.—For t Worth 2004, pet. denied)).18 a child, even a single act or omission may suffice. 36 Allegations involving subsection D violations require that courts examine the period before the Department removed the child from the home to evaluate the pa rent that placed or allowed the child to remain in a condition that endangered the child’s physical or emotional well-being. 37 In contrast, allegations i nvolving subsection E violations , may be “based on conduct both before and after removal.” 38 In cases involving claims to terminate a parent’s rights to a child, domestic violence may be considered by the finder of fact as evidence that a parent has engaged in conduct or created a condition that endangers a child. 39 “[A]busive or violent conduct by a parent or other resident of a ch ild’s home may produce an environment that endangers the physical or emotional well-being of a child.” 40 Here, the evidence elicited in the tr ial allowed the trial court, acting reasonably, to form a firm conviction or be lief that Mother was a victim of domestic

36

In re L.E.S. , 471 S.W.3d 915, 925 (Tex. App. —Texarkana 2015, no pet.) (citing In re A.B. , 125 S.W.3d 769, 776 (Tex. App.—Tex arkana 2003, pet. denied)). 37

Id. (citing In re L.C. , 145 S.W.3d 790, 795 (Tex . App.—Texarkana 2004, no pet.)). 38 In re A.L.H. , 515 S.W.3d 60, 93 (Tex. App. —Houston [14th Dist.] 2017, pet. denied) (citing In re S.R. , 452 S.W.3d 351, 360 (Tex . App.—Houston [14th Dist.] 2014, pet. denied)). 39 See In re K.P. , No. 09-13-00404-CV, 2014 Tex. App. LEXIS 9263, at *39 (Tex. App.—Beaumont Aug. 21, 2014, no pet.) (mem. op.); In re C.J.O. , 325 S.W.3d 261, 265 (Tex. App.—Eastland 2010, pet. denied). 40

In re Z.L.M. , No. 09-14-00457-CV, 2015 Tex. App. LEXIS 1097, at *10 (Tex. App.—Beaumont Feb. 5, 2015, no pet.) (mem. op) (quoting In the Interest of J.T.G. , 121 S.W.3d 117, 125 (Tex. App.—For t Worth 2003, no pet.)).19 violence and that Mother was refusing to address the issue. The incidents involved a similar pattern, Father hit Mother, Mother contacted the police, filed a report, and then contacted authorities to get any char ges filed dropped after authorities brought charges against Father based on Mother’s repor t. But as compared to the incident in 2017 or 2018, the incident in 2021 involv ed more violence—it involved kicking and choking, not just hitting. Simply put, the tria l court had the right to consider whether the evidence revealed an ongo ing pattern of domestic violence, a pattern Mother was contributing to by i gnoring and creating a danger to Emilio’s physical safety and emotional well-being too. That said, there is more here than ju st simply a history of domestic violence to support the trial court’s conclusion that Mother violated subsections D and E. Importantly, Mother admitted that she had, before Emilio was born, pleaded guilty to endangering her child Henr y. While Mother was not pronounced guilty when she pleaded guilty to endangering Henry, the r ecord still shows the trial court found her guilty of endangering a child and shows sh e was sentenced to prison for endangering Henry about six weeks af ter Emilio was born. The standard of review that applies to our review of the appeal of a parental rights termination case requires that we review all evidence admitted in the trial. As applied here, that includes Mother’s testimony admitting to a conviction for endangering Henry, even though the Department didn’t create a record that includes20 a copy of the judgment of conviction re levant to Mother’s conviction for endangering Henry. 41 Under Texas law, a defend ant commits an offense of abandoning or endangering a child by either: (1) . . . intentionally abandon[ing] the ch ild in any place under circumstances that expose the child to an unreasonable risk of harm; [or] (2) . . . intentionally knowingly, recklessly, or with criminal negligence, by act or omission, engag[ing] in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment. 42
So while Mother’s conduct about endangering Henry o ccurred before Emilio was born, the trial court could still consider it in deciding whether Mother engaged in conduct that endangered Emilio since th e conduct that lies at the heart of the

41 In re J.F.C. , 96 S.W.3d at 266. As an aside, we note that Mother says in her brief that her “criminal history was admi tted into evidence.” But her statement is inaccurate, the record simply does not incl ude Mother’s convic tion for endangering Henry. Mother supports the statement she made in her brief by citing the Court to Petitioner’s Exhibits P-7 through P-13. As to these exhibits, the record shows the following: (1) P-7 is a Health and Human Services report, a report that concerns suits affecting Mother’s parent-ch ild relationships as of Oc tober 20, 2020; (2) P-8 and P9 are not in the appellate record befo re the Court; (3) P-10 is a Judgment of Conviction relevant to Fa ther’s conviction for Possession of Marijuana, the conviction that relates to his arrest in Montgomery County; and (3) P-11 through P13 are not in the appellate record. The reco rd does not show the Department (or any other party) offered Exhibits P-8, P-9, P-11, P-12, or P-13 into evidence during the trial. 42 Tex. Penal Code A nn. § 22.041(c).21 matter—what standard does Mother follow when taking care of her children, and does that standard endanger Emilio’s physical and emo tional well-being? 43 Together with considering Father’s hi story of abusive conduct toward Mother and Mother’s history of enda ngering Henry, the trial cour t also heard testimony that Mother’s other children were being ca red for by other adults. The evidence established that Mother’s oldest child, Freddi e, lives with his father. Mother has not seen him in four years, and she expressed no r eal desire to see him. To be fair, Mother didn’t say she did not want to see Freddie, just that she hasn’t seen him in four years even though she could. As to Henry— the child Mother pleaded guilty to endangering—Mother testified she sees Henry, but her visits with him are “supervised;” according to Father, the visits are supervised by his mother and father, which according to Father is where Henr y lives. According to Father, David now lives with Mother’s sister because that’s where the Department placed him after removing him from his home when David became homeless. 44 Father admitted that he learned just a week before the trial th at David was living with his sister-in-law

43 See In re M.D.M. , 579 S.W.3d 744, 764 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (“In de termining whether the Departme nt has established that the parent engaged in an enda ngering course of conduct, we may consider evidence concerning how a parent has treat ed another child or spouse.”); Jordan v. Dossey , 325 S.W.3d 700, 724 (Tex. App.—H ouston [1st Dist.] 2010, pet. denied) (“Evidence as to how a parent has treated another child or spouse is releva nt regarding whether a course of conduct under section E has been established.”). 44 At trial, the Department’s attorney didn’t ask Mother any questions about David or why the Department had to remove David from her home.22 and before that, he had not known wher e David was living “[f]or quite a while.” From Father’s testimony, the trial court coul d have inferred that Mother didn’t know where David was until shortly before trial and that she hadn’t known for some time either. From the evidence as a whole, we concl ude the trial court could have formed a firm belief or conviction th at terminating Mother’s pa rental rights to Emilio was proper under subsections D and E. 45 As the sole factfinder, the trial court could reasonably find that Mother was in a relati onship involving domestic abuse and that she had, in the past, placed a child in ci rcumstances that exposed the child to an unreasonable risk of harm. The trial court c ould have also formed a firm belief or conviction that Mother, base d on her conduct, continues to ignore the danger that domestic violence posed to Emilio, disreg arding that danger based on her conduct, even though she was on notice the danger exists. 46 We overrule Mother’s first two issues. The Best-Interest Finding In issue four, Mother contends th e evidence is legally and factually insufficient to support the trial court’s be st-interest finding. Under the Family Code,

45 See In re J.F.C. , 96 S.W.3d at 264-65. 46 See In re S.R. , 452 S.W.3d at 360 (subsections D and E both use the term endanger , which means “to expose a child to loss or injury or to jeopardize a child’s emotional or physical health[]”).23 there is a strong presumption that keeping a ch ild with a parent is in the child’s best interest. 47 Even so, it is also presumed “the prompt and permanent placement of the child in a safe environment is . . . in the child’s best interest.” 48 When determining whether terminating the parent-child relations hip is in the child’s best interest, we consider the non-exclusive factors iden tified by the Texas Supreme Court in Holley v. Adams

. 49 In a best-interest analysis, courts focus on the best interest of the child, not the best interest of the parent. 50 Often, the evidence that supports the predicate findings on the D and E grounds may also support the trial court’s best-interest finding. 51 And

47 Tex. Fam. Code Ann. § 153.131(b); see also In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006) (noting that a “strong presum ption” exists favoring keeping a child with its parent). 48 Tex. Fam. Code Ann. § 263.307(a). 49 In Holley , the Texas Supreme Court used th ese factors when reviewing the best-interest finding: • the child’s desires; • the child’s emotional and physical needs, now and in the future; • the emotional and physical danger to the child, now and in the future; • the parenting abilities of the parties seeking custody; • the programs available to assist the party seeking custody; • the plans for the child by the parties seeking custody; • the stability of the home or the proposed placement; •the parent’s acts or omissions that re veal the existing parent-child relationship is improper; and • any excuse for the parent’s acts or omission Holley v. Adams , 544 S.W.2d 367, 371-72 (Tex. 1976). 50

Dupree v. Tex. Dep’t of Pr otective & Regulatory Servs ., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995). 51 In re T.R.S. , No. 09-18-00482-CV, 2019 Tex. App. LEXIS 4913, at *15 (Tex. App.—Beaumont June 13, 2019, no pet. ) (“The same evidence that supports a24 the Department need not present evidence to support each of the Holley factors, as the lack of evidence on some factors w ill not preclude the factfinder from forming a strong conviction that terminating the parent -child relationship is in a child’s best interest, particularly when the evidence is undisputed that the parent endangered the child. 52 As the reviewing court, the question we must decide is whether the record, when considered as a whole, supports the trial court’s best-interest finding. 53 Turning to the Holley factors, the evidence allowed the trial court to conclude that Mother and Father did not, during th eir marriage, provide the children with a stable home. The court heard testimony th at Mother has periodically suffered from periods of homelessness. For nine months, Mother was incarcerate d, and during part of that time Father lived in various places while he worked as a day laborer and on shrimp boats. And already noted, the tria l court found Mother engaged in conduct that endangered Henry. The tr ial court could rely on that finding in deciding it was not in Emilio’s best interest for the court to return him to Mother and place him in her custody. Likewise, the trial court heard ev idence sufficient to a llow it to find that Mother and Father were in an abusive relationship. Mother was in denial her relationship with Father posed a danger to the safety and well-being of her children,

trial court’s findings under subs ections D, E, and O may also be relevant to the trial court’s best-interest finding.”). 52

In re C.H ., 89 S.W.3d 17, 27 (Tex. 2002). 53 Id. at 28.25 including Emilio, as when char ges were filed against Father, Mother worked to have the charges dismissed. Finally, the trial court heard testimony showing Mother failed to take the random drug test s required by her court-orde red Family Service Plan. From that evidence, the trial court had a ri ght to infer that Mother was using an illegal substance, a substance that likely explained to some extent the reasons she was homeless, the reasons none of her childr en were living with her, and the reasons she allowed herself to remain a victim of domestic abuse. There was also evidence th at Mother failed to bond with Emilio. But we weigh that evidence against the evid ence showing the Department imposed restrictions that limited in-person visits with Emilio while the suit was pending before the court. Even so, the evidence shows that Emilio, now eighteen months old, has not bonded with his parents. The trial court also heard testimony th at currently, Emilio is “a very happy child” who “likes to play with toys that ma ke noise or music.” There is also evidence showing he “smiles at everybody.” Before entering the foster care system, Emilio was behind on his immunization schedule, but as of trial, Emilio was current on his immunizations. The Department testified about its long-term goal for Emilio, an unrelated adoption. Even though Emilio’s curre nt foster family (because of the ages of the foster parents) is unwilling to adopt Emilio, there are no barriers to adoption, according to McCray.26 We recognize that a parent’s rights to raise a child “are of constitutional magnitude,” but a parent’s rights as a parent are not absolute. 54 Mother simply has no right to put her interests above Emilio ’s and sacrifice his physical safety and emotional well-being to preserve the rela tionship she desires to have with him. Nothing at trial shows that the past pa tterns of conduct that Mother and Father engaged in changed a nd would not recur. We hold the trial court did not abuse its discretion by preferring an outcome that placed Emilio in a stable, safe, and permanent placement over the outcome Mother preferred. While Emili o’s current foster family is not an adoptive placement, there is evidence that Emilio is adoptable and is currently in a safe, stable, and loving home. 55 Deferring to the trial court’s role as the sole arbiter of the facts, as we must, we hold the trial court did not abuse its di scretion by preferring a stable, safe, and permanent placement of the children over th e outcome Mother preferred. To prove what outcome is in a child’s best interest , the Department need not produce evidence in the trial on each factor used to deci de whether terminati ng the parent-child

54

Id

. 55 See In re C.H. , 89 S.W.3d at 28 (lack of evidence about definite plans for permanent placement and adoption ca nnot be the dipositive factor).27 relationship is in the child’s best interest. 56 We conclude the reco rd contains legally and factually sufficient evidence to support the trial court’s finding that terminating Mother’s rights is in Emilio’s best interest. 57 Because Mother’s fourth issue lacks merit, it is overruled. Conservatorship In her fifth issue, Mother contends that by appointing the Department as Emilio’s sole managing conservator, the tria l court abused its discretion. On appeal, we review a trial court’s conservatorship determination using an abuse of discretion standard, meaning we may reverse the ruli ng only if the decision is arbitrary and unreasonable. 58 In our review, we consider whet her the trial court had sufficient information on which to exercise its discre tion, and whether the trial court erred in applying its discretion. 59 On appeal, Mother argues a presumpti on favors awarding custody of the child to the child’s parent. 60 Yet when the trial court te rminated the parent-child

56 See id. at 27 (“But we have never held that these considerations are exhaustive, or that all such considerati ons must be proved as a condition precedent to parental termination.”). 57 See Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307(a); see also In re J.F.C. , 96 S.W.3d at 266; Holley , 544 S.W.2d at 371-72. 58 In re J.A.J ., 243 S.W.3d 611, 617 (Tex. 2007). 59

In re P.N.T. , 580 S.W.3d 331, 360 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). 60 See Lewelling v. Lewelling , 796 S.W.2d 164, 166 (Tex. 1990).28 relationship, the parent is no l onger the “parent” of the child. 61 So the question we must decide is whether the trial court a bused its discretion by choosing not to name the former parent as the managing conservato r of the child, rather than the managing conservator the trial court chose to name. Section 161.207(a) of the Family Code, requires th at trial courts after terminating the parent-child relationship of both parents to the child to “appoint a suitable, competent adult, the Department of Family and Protective Services, or a licensed child-placing agency as ma naging conservator of the child.” 62 Thus, when the trial court appoints the Department as the child’s sole managing conservator, the appointment is considered a “conseque nce of the termination” under section
161.207. 63 Simply put, the evidence provides no sup port for Mother’s claim that the trial court should have appointed Mother as Em ilio’s conservator. Mother’s rights were terminated because she endangered Emilio , so the trial court did not abuse it discretion by refusing to appoint someone the evidence reveals is not a suitable and competent adult for managing the child. 64 And nothing in the record shows the trial

61 See Z.A.R. v. Tex. Dep’t of Family and Protective Servs. , No. 14-20-00511- CV, 2020 WL 7866800, at *15 (Tex. App.—Hous ton [14th Dist.] Dec. 31, 2020, pet. denied) (mem. op.). 62 Tex. Fam. Code Ann. § 161.207. 63 In re V.A. , 598 S.W.3d 317, 334 (Tex. App.—Houston [14th Dist.] 2020, pet. denied); see also In re D.N.C. , 252 S.W.3d 317, 319 (Tex. 2008) (per curiam). 64 See Tex. Fam. Code Ann. § 161.207.29 court’s decision appointing the Department —the agency identified by the Family Code as an eligible managing conservator—was arbitrary or unreasonable. 65 We overrule Mother’s fifth issue. Conclusion Given our conclusion that the eviden ce supports the findings the trial court made under subsections D and E and the tria l court’s best-interest finding, we need not resolve Mother’s third issue, Mother’s issue challenging the trial court’s finding that Mother violated the requirements of her court-ordered Family Service Plan. 66 Thus, the Order of Termination in tr ial court cause number 20-08-09866-CV is
AFFIRMED.

_________________________ HOLLIS HORTON Justice
Submitted on February 24, 2022 Opinion Delivered April 7, 2022 Before Kreger, Horton and Johnson, JJ.

65 See id

. 66 Tex. R. App. P. 47.1.