### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03 - 22 - 00443 - CV

E. F. - B. , Appellant

v. Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 21DFAM325523, THE HONORABLE DALLAS SIMS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
E.F. -B. (Father) appeal s from the trial court ’ s decree terminating his parent al

r ights to his infant son (Infant) , who was almost one year old at the time of trial. 1 S ee Te x. Fam. Code § 161.00 1(b )

. Fath er challenges the legal and factual sufficiency of the evidence supporting termination under subsections (E), ( N), (O), and (Q) and supporting that termination is in Infan t’ s best interest. 2 W e affirm the t rial court’s term ination decree.
BACKGROUND I nf an t was born on June 7, 2021. The T e xas Department of Family and Protective Services (Department) received an intake for n eglectful supervision by Mother on the same day,

1 For the Infant ’s privacy, we will refer to him by an a lias and to his family members by their relationships to him or b y aliases. See Tex. R. App. P. 9.8.
2 Mother is not part of this appe al.2 wh ich alleged that Mother may have been homeless, received li ttle to no prenatal car e, and test ed positive for THC and amphetamines at admission to give birth to Infant. The Department on June 1 7, 2021, filed its original pe tition seeking temporary managing conservators hip of Infant and the termination o f Mother ’ s and Father ’ s p arental r ig hts. The trial court appointed the Department as temporary managing conserva tor , and In fant was placed with his maternal aunt, where he remained u ntil t he final hear ing. At the time of the original intake and throug hout the rema inder of t he underlying
t er mination proceeding, Father was incarcerat ed on charges of assault of a pregnant person , stemming from a January 2021 altercation with Mother. At the time, Mother told the responding police officer that Father hit h e r, and after she attem pte d to protect h erself and her unborn child from the blows, Father then “ started hitting her on the back of the legs with a closed fist and a plastic bott le. ” Mother reported that she “ was af raid that [Father] would kill her and [ Infant] , ” and that F ath er had assaulte d h er before. Father was arrested, inc arcerated, and u l timately entered a plea deal for a five

- year sentence. Father ’ s sent ence runs thr ough 2026, although he is eligible for parole in December 20 23 (i.e., 19 months after t rial). The f ina l bench trial on th e merits occurred on May 5, 2022. Julissa Rivas, the conservatorship worker assigned to the matter, testi fied that I n f ant had been placed with his mater nal aunt since he was discharged from the hospital af ter his b irth. S he testified t hat the
mat ernal au nt wanted to keep Infant , “ is cap able of adopting him , ” and wished to adopt him. She test ified that neither parent has shown they were able to pr ovide Infant with a s afe, suitable , and appropriate environment

. She also descr ibed I nfant ’ s c urrent place men t and stated that Infant “ is always smiling. He ’ s starting to crawl now. He gets alo ng with his sister. Overall, [the mater nal3 aunt is] a goo d p lacement

. ” Rivas also clarified that Infant ’ s half

- sibling wa s previously adopted by the same mater nal au nt. R ivas testified that Infant had never met Father and that Mot her had last s een Infant virtually in December. 3 R ivas testified she was aware of Father ’s criminal history and because of that history she had c oncerns about his abili ty to par ent at all or ev er in the future. R ivas testified that she wa s aware Fath er had been charged and incarcerated for assault of a pregnant person, aggravated robbery, evading arrest, a nd tampering with physical evidence. R ivas testified that placing Infant w ith a person wh e n they are evading arres t or trying to tamper with or destroy evidence would put the Infant in danger if Infant were exposed to such behav iors. Rivas also testified that Father ’s sentenc e wou ld extend more t han two years from the date of
t rial. Rivas tes tified that neither parent can pr ov id e the necessary guidance to Infant and neither would be an appropriate person to make medical decisions or be around the child if they are not taking drug tests
. On cross

- examination , Rivas t est ified that F a ther had se nt her mu ltiple lett ers and that he wanted to be the father to Infant

. Rivas stated that Father has not denied any of the wrongdoing in his past, and that he has sent pap ers indicating he was at t ending anger

mana gement clas ses . R ivas concluded that he r o pinion is that “[t]he best interest is for [ Infant ] to be adopted by his maternal aunt , ” a nd she had no doub t in her mind that termination of the parents ’ rights i s in the best interest of the chi ld

. 4

3 Rivas te stified that the Department gave Mother a service plan but she was unable to complete it; in pa rticular, Rivas testified that M o ther had tested positi ve for methamp heta mine “on sev eral occasions,” that Mothe r had not taken any drug tests since November 2021 , and that Mo ther had not seen I n fant since she ceased taking drug tests because drug testing was a pre condition for visiting I nfant.
4 Mother also testified that her sister “ i s a great caregiver ” and In fant ’ s half

- siblin g “ is in a great placem ent ” with the mater nal aunt

.4 Father testified that Inf ant is his biological chi ld. F a ther stated that he took responsibility for beating up M o ther in January 2021 and that he entered a plea deal for the assault of a pregnant per son charge

. Father stated that he fir st saw a p icture of I nfant “ three or four mon ths after [Infant] was born ” and that the experience was “ [v]ery life changing ” and

“ turned my life completely around. ” Father testified t hat he has been incar cerated the whole life of Infant but he was “ currently enrolled in anger manag ement class es and al so awaiting a drug pr ogram . I ’ m waiting for a bed to o pen in the NCC Drug P rogram. ” He stated that he goes to church every weekend, stays out of trou ble, and associates with “ a bunch of Bible t oters. ” Fath er testi fied th at he is current ly serv ing a fiv e - y ear sentence and i s up fo r par ole in December 2023. He st ated that he would do whatever to qu alify for parole , and that he will have “ a very differ ent life ” once he is released

. Father also admitted that he was prev iousl y denied parole and adm itted tha t t he parole board h ad “ dec ided [he was] not a good risk for society. ” Father testi fied that his mother , wh o is currently in New Jersey , wou ld relocate to T e xas to help with Infant

. Fat her stated that he loves Infa nt and does not want hi s rights ter minated. Father testifie d that he has “ no problem at the moment with [Infant] being where he ’ s at ” but that he does not wan t to relinquish his rights. Father conceded on c ross - examination that he was previously char ged w ith aggravated robbery and was s ent enced to seven years in p rison a fter violating probati on. Father also conceded that he was charged with e vading arrest and tampering with physical evidence in 2017 , for which he was sentenced to five years in p rison

. Father testified tha t after h e w as released , he assaulted Moth er wh il e she was pre gnant in January 2021. Father a dmitted t hat Mother was visib ly pregnant when he assaulted her and that he has “ made bad dec isions in [his] life ” but stated that he is “ t rying to t urn [his] life arou nd. ” Fat her a lso testified that he w as a war e5 he would be looking at twenty

- five years to l ife if he committed a third felony while on parole under the Texas habitual felony offender statute. Father also clarified t hat his “ bad dec isions ”

— the agg ravated r obber y, t ampering , and evading arres t

— were a ll from before Infant ’ s birth. A t the end of the hearing, the trial court found by clear and convincing evidence
t hat Mother ’ s and Father ’ s parental rights should be terminate d. T he tria l court f ound that clear and conv incing evidence supported ter minatio n un der the predicate statutory grounds of subsection s (D), ( E), (N), (O), and (Q), and that termination of Father ’ s parental rights is in the be st in terest of Infant. The trial cour t thereaf ter named the Department the permanent managing

conser vat o r and continued the pl acement of Infant with his maternal aunt. The trial court signed the final Decree of Termination on June 23, 2022, and this appe al fo llowed.
S TANDARD OF R EVIE W To terminat e the parent
- c hild r elationship, a court must find by cle ar and

co nvincin g evidence that: (1) the parent has committed one of the enumerated statutory ground s for termination and (2) it is in the child ’ s best inter est to ter minate the pa rent ’ s rig hts. Tex . Fam. Code § 161.001 (b). Clear and convincin g evidence is “the m easure or degree of proof that will produce in the mi nd of the trier of fact a firm belief or conviction as to the truth o f the allegations

sou ght t o be estab lished.” Id

. § 1 01. 007

.

“ The distin ction be tween legal and factual sufficie ncy lies in the extent to w hich dispu ted evidence contrary to a finding ma y be considered. ” I n re A.C ., 5 60 S.W.3d 624, 630 (Tex. 2018)

. When determining legal s uffic iency, we consider whet her “ a r ea sonable f actfin der coul d form a firm belief or convicti on that t he find ing wa s tru e ” when the evidence is viewed in the lig ht most favorable to the factfinde r ’ s determination and undisputed contrary evidence is6 cons ide red. I d

. at 63 1. When dete rmining fa ctual suf ficien cy, we c onsider whether “ in light of the entire r ec ord, the di spute d evidence a reasonable factfinder could not have credited in favor of a fi ndin g is so significant that the factfinder could not have fo rmed a firm bel ief or convic tion tha t the findi ng was true
. ” Id

. We must “provide due defer ence to t he decisions of th e factfinder, who, having full opportunit y to observe witness testimony fir st
- h and, is the sole arbiter when assessing the credibility a nd de meanor of witnesses.” In re A. B

. , 437 S.W .3d 49 8, 503 ( Tex. 2014); see also In re J.P.B ., 180 S. W. 3d 570, 573 (Tex . 2005).
DISCUSSION Father challenges t hat there was legally and factually sufficient evidence supporting termination under subsection s (E) , (N), ( O), and ( Q)

. S ee T ex . Fa m. Code § 161.001 (b) ( 1) (E) (endangering conduct) , (N) (constructiv e abandonmen t), ( O) (failure to comply with court order establishing actions necessary for return of child in Department conservatorship ), (Q) (criminal cond uct). How ever, Father concedes that sufficient evidenc e supports termination under subsection (D)

. 5 See id. § 16 1.001 (b)( 1)(D) ( auth orizing termination upon finding of clear and convincing evidence that parent “ knowingly placed or knowingly allowed the child to remain in condi tions or surroundings which endanger t he physical or emotional well

- being of the chil d ”)

. We th eref ore n eed not a ddress the other predicate statutory grounds , including subsection (E), because there is sufficient evidence supp orti ng the trial court ’ s term ination under s ubsecti on (D). See In re N.G. , 577 S.W.3d 230, 232 (Tex. 201 9) (per curi am) (exp lain ing t hat appellate court may affirm termination judgment by u pholding one

5 In his briefing on appeal, Father does not challenge the sufficiency of the evidence supporting termination under subsection (D). In fac t, h e concede s that “ [t]he only ground the Dep artment could prove was paragraph D ” and that “ [t]he evidence was neither legally nor factually sufficient to support any ground f or terminatio n other than paragraph D. ”7 termination ground under section 161.001(b)(1) ); see also C. W. v. Tex as Dep ’ t of Fam

. & Protective Serv s . , No. 03

- 19

- 00654

- CV, 2020 WL 82867 3, at *2 (Tex. App

. — Austin Feb . 20, 2020, no pe t.) (mem. op.) (citing In re K.M. , Nos. 01

- 19

- 00285

- CV, 01

- 1 9

- 00286

- CV, 2019 WL 3949483, at *8 (Tex. App.

— Houston [1st Dis t.] Aug. 22, 2019, pet. denied) (m em. op.) ) ( declin ing to review sufficiency of evidence under subsection (D) because appellant did not challenge subsection (E ) fin ding that separately trigger s collateral consequences under subsection ( M ) ) ; Tex. R. App. P

. 47 .1. We turn to Father ’s remaining issue, challenging that there was legally and fac tually sufficient evidence supp orting the best interest fin ding

. “[T]here is a strong presump tion that the best interest of a child is served by keeping th e ch ild with a parent.” In re R.R. , 209 S.W.3d 112, 116 (Tex. 2 006). “And because of the strong presumption in f avor of maintainin g the parent

- child relationsh ip an d the due process implication s of terminating a parent ’ s rights to [a] minor child without clea r and convincing evidence, the best interest standard does n ot permit terminat ion merely because a child mig ht be better off li ving elsewhere. ” S. B. v. Tex as De p ’ t of Fam

. & Protective Serv s. , 654 S.W.3d 246 (Tex. App.

– Austin 2022, pet

. F iled) (quotation marks omitted) (quotin g In re D.L.W.W ., 617 S.W.3d 64, 81 (Tex. App.

— Houston [1st Dist.] 2020, no pet.) ). “In parenta l

- ter mina tion proceedings, [the De partment ’ s] burden is not simply to prove that a parent should not have custody of [the] chil d; [the Department] must meet the heightened burden to prove, by clear and convincing e vidence, that the parent should no longer have any relationship with the chi ld whatsoever.” Id

. ( quoting In re D.L.W.W ., 617 S.W.3d at 81 ). T hat parental presumption disappears , however, when suffi cien t evidence is pres ented to the contrary. We c onside r the factors s et forth in Holley v. Adams to evaluat e best8 interest: (1) the child ’ s wishes, (2) the c hild ’ s emotional and physical needs now and in the future, (3) a ny emotional or ph ysical danger to the child now and in the future, (4) the parenting abili ties of an y p arties seeking access to t he child, (5 ) programs available to help those parties, (6) pl ans for the child, (7) the stability of any proposed placement, (8) any evidence t hat the parent
- child relati onship is improper, and (9) any excuses for th e par ent ’ s co nduct. 544 S .W.2d 367 , 37 1

– 72 (Tex. 1 976) ; see also A.C ., 560 S.W.3d at 63 1; S

. B. , 2022 WL 4242538, at *4

. The party seeking termination has the burden of establishing that termination is i n the child ’ s best interest. See In re J.F.C. , 96 S .W.3d 256, 26 6 (Tex. 2002)

. Th e set of factors is not exhaustive ; although one factor i s no t necessarily dispositive, in some instance s evidence of a s ingle factor may suffic e to support the best

- interes t finding. See Holley , 544 S.W.2d at 371

– 72; see al so In re C.H. , 89 S.W.3d 1 7 , 27 (Tex. 2002); S. B. , 2022 WL 4242538, at *4

. Ultimately, the Holley test focuses on the child ’s best interest, not the pa rent ’s. In re C.L.C. , 119 S.W.3 d 382, 399 (Tex. App

. — Tyler 2003, no pet.)

. Father has been incarcerated for Infant ’s entire life a nd h as ne ver met Infant

. The evidence in the record demonstr ates that Father was previously convicted and incarcerated for f irst

- degree

- felony a ggravated r obbery , t hird

- degre e - felony e vading a rrest, and third

- degree

felony tampe ring with phy si cal evidenc e , and t hat Father was ar rested and charged wi th evadi ng
a rrest and tampering with evidenc e arising from a traffic sto p that occurred w hile Father was released on community supervision for the aggravated robbery ch arge . See J.G. v. Tex as Dep ’ t of Fam

. & Protective Serv s. , 592 S.W .3d 515, 525 (Tex. App.

— Austi n 20 19, no pet.) ( “ [ A ] trier of fact may measure a parent ’ s futu re conduct by his past conduct and deter mine whether termination of parental rights is in the child ’ s best inter est.” (quotin g In re B.R

. , 456 S.W.3d 612, 616 (Tex . App.

— San Antonio 2015, no p et.) ) )

. A f ter being released, Father then assaulted9 Mother in J anuary 2021 while she was visibly pregnant with Infant , and Mother reported at the time tha t she was afraid Fa th er “would kil l her and [I nfant] ” and that Father ha d previously assaulted her

. See In re C.A.J. , 122 S.W.3d 888, 893 (Tex. App.

— Fort Worth 2003 , no pet.) (explaining that “ a parent ’ s inability to provide adequate care for the child, lack of parenting skil ls, poor judg ment, and re peated instances of immora l conduct may also be conside red when l ooking at best interest ”). Father was thereafter conv icted of third

- degree

- felony assault of a pregnan t person and sentenced to five years of i mprisonment

. S ee S

. B. , 2022 WL 424 2538 , at *4 ( st ating st ability and per man ence are the “paramount cons iderations ” for the child ’s emot ional and physical n eeds and any emotional or physical risks to child now and in future). Father i s not scheduled f or release until 20 26 ; has been denied par ole once alr eady ; and would not be eligible for parole again unt il December 2023, approximately nineteen months after t ria l

. Moreo ver, Father wou ld be subject to t he Texas habitual felony offender statute if he is con victed of another felo ny after rele as e. See J.G. , 592 S.W.3d at 525 ( “ Fa ther ’ s multiple periods o f in carceration raise the possibility tha t he will continue to engage i n criminal activity and risk imprisonment in the future. ” )

. Infant has spent his entire life in the care of his mate rnal a unt, who prev iously adopted Infant ’ s h alf

- sibling and wants t o ad opt Inf ant. See In re J.M. T. , 519 S.W.3d 258, 270 (Tex. App.

— Houst on [1st Dist.] 2017, pet. denied) ( affi rming determination and concluding that

“ youn g age [of the subject chi ld] does weigh in favor of t he best

- interest determin ation ” ). R ivas testifi ed t hat Infant ’ s placement with his mat ernal aunt was a “ good placement ” and that Infant is

“ always s miling ” and “ gets along with his ” half

- sibli ng. See In re C.C. , No. 05

- 20

- 0105 6

- CV, 2021 WL 1 573062, at * 6 (Tex. App.

— Dallas Apr. 2 2, 2021, p et. denied) (mem. op.) (sta ting that factfinde r may infer child ’ s wishes from other evidence p resented at the hearing). In c ontrast,10 Rivas testified that Father has not “ shown that [he is ] able to provid e [ Infant] wit h a s afe, sui table and appro priate environment

. ” S ee id. Fat her contends that seeing a picture of Infant was “ [v]ery l ife changing. I turned my li fe complete ly around. ” He testified that he plans to have “ a very different life ” when he is released ; th at he is taking anger manageme nt, drug treatment, and vocatio nal courses ; goes to church every weekend ; and his mother is willing to r e locate to help him with Infant. “ However, a trial court is not bound to accept the truth or accuracy of a pa rent ’ s t estimon y, either as to past action s or future intentions

. ” I n re D.M. , 452 S.W.3d 462, 472 (Tex. App.

— San Antonio 2014, no pet.) . Furthe rmore , “ [e] vidence of a recent improvement does not absolve a parent of a history of irresponsible choices. ” In re A. M. , 385 S.W.3d 74, 83 (Tex. App.

— W aco 2012, pet. denied)

. F athe r also accepts responsibility fo r his past actions and contends that his decis ion to not excuse “ my actions but to accept what I ’ ve done ” weig hs against termination. Even if we treat Fathe r ’ s commend able accep tance of responsi bility as w eighing the fi nal factor against the best interest determination, the other factors o verw he l ming ly supp ort the best interest finding by the trial court. See Holley , 544 S.W.2d at 371

– 72

. Reviewing the record under the appropriate standards of r eview and con sidering the rel evant factors, we conclude that legally and factually sufficient evid ence s upports the trial court ’s finding that termination was in the best interest of Infant. We overrule Father ’s remaini ng issue.11 CONCLUSIO N W e affirm th e trial cour t ’ s final de cree terminating Father ’ s parental rights to I n fant.

__________________ ______ __________________ Darlene B yrne , Chief Just ice Before C hief Justice Byr ne, Justices Trian a and Smith Affirm ed Filed: December 7, 2022