Affirmed and Memorandum Opinion filed April 16 , 2015

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 14

- 00948

- CV

IN THE INTEREST OF T .M., A CHILD

On Appeal from the 306th District Court Galveston County, Texas Trial Court Cause No. 13

- CP

- 0062

M E M O R A N D U M O P I N I O N

A jury found that a father’s parental rights to his child should be terminated based on one or more of the Family Code’s statutory grounds and that termination was in the child’s best interest. In eight issues, the father contends that there was no evidence, or alternatively, insufficient evidence to support the trial court’s judgment on the jury’s findings. We affirm.2 F ACTUAL B ACKGROUND
T.M. was born in a Galveston County hospital on November 23, 2012. When T.M. was born, both she and her m other , N.C. (“Mother”), tested positive for the illegal drug phen c y clid i ne, or PCP. T.M. was also diagnosed with Down syndrome , heart problems, and other conditions

. T.M.’s biological father, R.M. (“Father”) , was at the hospital when T.M. was
born , althou gh he and Mother were no longer in a relationship and Mother was
married to another man

. Hospital personnel reported that Father came to the hospital smelling of alcohol and verbally abused Mother. Mother identified Father as the biological father of T.M. and Father was listed as such on the hospital’s
medical records . T.M. also was given Father’s last name. Father never questioned that he was T.M.’s biological father.

D ue to the positive drug screen and a concern about the possibility of
domestic abuse , t he Department of Family and Protective Services became
involved. With Mother’s agreement, t he Department arranged for T.M. to be discharged from the hospital to Mother’s second cousin, D.H. Father was living in
Louisiana at the time and agreed to the plac ement. The Department did not consider placing T.M. with Father because of concerns about his criminal history
and substance abuse

. T.M. remained in D.H.’s c are until she was returned to Mother on May 28, 2013.
The Department continued to monitor the chi ld’s care at Mother’s home. I n July 2013, about two months after T.M. had been returned to her, M other failed a drug test . The Department returned T.M. to D.H.’ s care , where she has since
remained

. In August 2013, the Department filed an “Original Petiti on for Protection of3

a Child, For Conservatorship, and for Termination in Suit Affecting the Parent

Child Relationship,” listing Mother’s husband as T.M.’s presumed father and Father as T.M.’s alleged father. M ediation result ed in agreed temporary orders

a ppointing the Department as T.M.’s temporary managing conservator. Father was also ordered to submit to parentage testing. The Department opted not to offer Father a family service plan until parentage was determined.

Father provided a DNA sample which co nfirmed that he was T.M.’s biological father , and he was adjudicated as such on January 30, 2014. After that, the Department set up a service plan for Father and delivered a copy of the plan to him on March 1, 2013.

Father’s service plan was approved by the court on May 27, 2014. Among other things, the service plan ordered Father to attend, participate in, and complete a psychological evaluation and follow all recommendations; submit to random drug testing; complete a drug and alcohol assessment and foll ow all recommendations; obtain and maintain gainful employment; pay child support as ordered; enroll and attend a batter er ’s intervention and prevention (“BIP”) program; and not commit any criminal acts. At the time he received the service plan , Father had been convicted of possession of a controlled substance, namely PCP, and was incarcerated in the Galveston County Jail from December 27, 2013, through August 22, 2014.

When the Department’s suit went to trial on November 3, 2014, Father had been out of j ail for only seventy

- three days. Within that time , Father completed a parenting class , submitted to a psychological evaluation , and began a BIP program

. Father also voluntarily submitted to a drug treatment program. However, Father admitted using PCP in N ovember shortly before he wa s incarcerat ed , using PCP after his release in August , and smoking marijuana in September. Additionally,4

records showed that Father did not start attending Narcotics Anonymous meetings until October 9, less than a month before t rial, and did not begin a clinical detox program until October 24

. Father estimated that, as of trial, he had been “clean” for
about one month.
Because of his drug use, Father also refused to submit to a court

- ordered drug test because he knew he would te st positive. T he Department deemed the test positive and , as a result, Father was not allowed supervised visitation with T.M. at
D.H.’s home. Before that , Father had four visits with T.M.
At trial, t he Department sought to terminate the parental rights of both Mother and Father, with the goal of D.H. adopting T .M. The evidence showed that T.M. was living in a safe, healthy, and caring environment with D.H. , and that
D.H. had allowed F ather’s family, including Father’s three adult children, to visit
the chi ld . D.H. testified that she wanted to adopt T.M. so that they could continue their life together. She a lso stated that she w as willing to permit Father’s family to
continue to see T.M. , provided that T.M. was “in a safe place and taken care of. ”
She was al so willing to permit Father to visit T.M. so long as he was not abusing drugs.
Father did not dispute that D.H. provided a caring and stable home for the child; in fact, Father agreed that T.M. was well cared for and safe with D.H . Father
also believed it would be appropriate for T.M. to remain in D.H.’s care until such
time as he was able to provide for her. Father testified that he did not want his parental rights terminated because he wanted to have access to the child and to be able to have a say in th e child’s life “ when [ he] bounce[d] back from all this.” Father requested that he be made T.M.’s possessory conservator with any restrictions and supervision the court deemed appropriate.
The jury found that both Mother’s and Father’s parental rights sho uld be5

terminated . I n accordance with the jury’s findings, on November 26, 2014, the trial court ordered their parental rights terminated and appointed the Department permanent sole managing conservator of T.M

. 1
The trial court’s judgment recited that Fa ther’s parental rights were terminated based on findings that termination was in T.M.’s best interest and that Father committed acts establishing the predicate termination grounds set out in
sub s ections D, E, F, N, O, and P of Texas Family Code section 161 .001(1)

. See Tex. Fam. Code §§ 161.001(1)(D), (E), (F), (N), (O) & (P); 161.001(2) . The judgment also recited that termination was warranted under Family Code section
161.003. See id. § 161.003. Father filed a motion for new trial challenging the legal an d factual sufficiency of the evidence supporting termination, which was overruled by operation of law. He also filed a timely notice of appeal.

A NALYSIS OF F ATHER ’ S I SSUES On appeal, Father challenges the legal and factual sufficiency of the evidence sup porting each of the termination grounds recited in the judgment and the trial court’s finding that termination of Father’s parental rights was in T.M.’s
best interest

. Because we conclude that clear and convincing evidence supports
termination based on sub section E of Family Code section 161.001(1) a nd that termination was in T.M.’s best interest, it is unnecessary to address Father’s other
issues. See In re U.P. , 105 S.W.3d 222, 2 36 (Tex. App.

— Houston [14th Dist.] 2003, p et. denied) (parental rights can be terminated with a finding best interest of

1 Mother did not appear at trial . T he Department sought to terminate Mother’s parental rights b ased on her affidavit of voluntary relinquishment of her rights to T.M. Mother does not appeal the trial court’s judgment terminating her parental rights.6

the child and any of the section 161.001(1) grounds challenged by appellant, and therefore it is unnecessary to address other grounds)

. Standards of Review Involuntary termina tion of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985)

. In Texas, to terminate the parent

- child relationship, a trial court must find by clear and convincing evidence that (1) the parent committed one or more of the acts specifically named in section 161.001(1) of the Texas Family Code as grounds for termination, and (2) termination is in the best interest of the child. Tex. Fam. Code § 161.001 ; In re U.P. , 105 S.W.3d at 229 . “Clear and convincing evidence” means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allega tions sought to be
established. Tex. Fam. Code § 101.007 ; In re C.H. , 89 S.W.3d 17, 25

– 26 (Tex. 2002)

. When conducting a legal and factual sufficiency review in a parental

- rights
termination case, we must determine whether the e vidence is such that the fact finder reasonably could have formed a firm belief or conviction that its findings

were true. See In re J.F.C. , 96 S.W.3d 256, 265

– 66 (Tex. 2002) ; In re C.H. , 8 9
S.W.3d at 25 . In reviewing the legal sufficiency of the evidence, we examine all of the evidence in the light most favorable to the fact finder's findings. In re
J.F.C. , 96 S.W.3d at 266 . We assume the fact finder reso lved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence that does not support the finding. Id. This does not mean, however, that we disregard all evidence that does not support the finding, because disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id.7

In reviewing the factual sufficiency of the evidence, we must give due
deference to the fact finder ’ s findings an d not supplant the judgment with our

own. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006) . We examine all of the evidence, giving due consideration to evidence that the fact finder could have reasonably found to be clear an d convincing. Id. If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that the fact finder could not reasonably have formed a
firm belief or conviction in the truth of its finding, then the evidence is factually
insufficient. Id. ; In re J.F.C. , 96 S.W.3d at 266

. Subsection E

Under Family Code section 161.001(1)(E) , the trial court may terminate the

pare nt

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

- being of the
child. Tex. Fam. Code § 161.001(1)(E). The term “endanger” means to expose the child to loss or injury or to jeopardize the child. Tex. Dep ’ t of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987) . Endangering conduct need not be directed

at o r cause actual injury to the child. In re U.P. , 105 S.W.3d at 233 . Termination under this subsection must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the par ent is required. Id. ; In re C.A.B. , 289 S.W.3d 874, 883 (Tex. App.

— Houston [14th Dist.] 2009, no pet.)

. Father contends that he did not engage in a voluntary, deliberate and
conscious course of conduct ; rather, his actio ns, incarcerations, and drug use go to show a diagnosis that with proper treatment will result in a successful parent.
Farther point s to the results of his psychological evaluation in which the8

psychologist, Dr. Westhoven, diagnosed him as suffering from a ntisocial personality disorder and a bipolar disorder, as well as disorders related to his drug

use

. Dr. Westhoven testified that Father’s failure to conform to social norms, impulsivity, irritability, aggressiveness, and disregard for the safety of others was consistent with antisocial personality disorder, and that Father’s anger was a characteristic of bipolar disorder

. 2 Father suggests that a finding of a deliberate, conscious course of conduct is incompatible with the symptoms of the disorders
with whi ch he has been diagnosed, such as impulsivity, and he argues that he i s finally receiving some support and help for his problems. Father also argues that T.M. came into the Department’s care not because of an act or omission on his part, but as a result of Mother’s PCP use , and none of Father’s criminal conduct has been against a child

.
T he Department contends that Father’s history of crime, incarceration, and drug use support a finding under subsection E. Although i ncarceration alone will not support term ination, evidence of criminal conduct, convictions, and imprisonment may support a finding of endangerment under subsection E. See In
re A.R.M. , No. 14

- 13

- 01039

- CV, 2014 WL 1390285, at *8 (Tex. App.

— Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) ; I n re C.A.B. , 289 S.W.3d at 88 6.
Lik e wise, a history of illegal drug use and drug

- related criminal activity is conduct that subjects a child to a life that is uncertain and unstable, endangering her physical and emotional well

- being. In re A.R.M. , 2014 WL 1 390285, at *8 ; see In
re U.P. , 105 S.W.3d at 235

– 36 . A father’s conduct prior to the establishment of his paternity may be considered as evidence of an endangering course of conduct. In
re A.R.M , 2014 WL 1390285, at *7.

2 Dr. Westhoven recommended that Father have a psychiatric evaluation to determine whether medication would be helpful, along with therapy, drug treatment, support groups, extended periods of random drug testing, and vocational counseling.9

Father has an extensive criminal re cord starting long before T.M. was born and continuing after her birth. In March 1992, Father was convicted of mur d er and attempted murder and sentenced to fifteen years in a state jail facility. In 1998, he

was also convicted of bribery in Powers County a nd was sente nced to five years in prison; that sentence was “stacked” onto his concurrent murder and attempted
murder sentences . In 2009, Father was convicted of possession of marijuana . In 2010, he was incarcerated for the unlawful carrying of a firearm b y a felon. Additionally, a s noted above, Father was serving jail time for possession of PCP in
2013 when he was provided with the Department’s family service plan.

Some of F ather’s criminal conduct was the result of domestic abuse against Mother. In July 2010, a protective order was entered on Mother’s behalf against
Father as a result of an assault for which Father was convicted in October 2010. He

was again convicted of assault with family violence in September 2011 for an other offense against Mother th at occurred i n February 2011. Additionally, Father pleaded no contest to, and was convicted of , violat ing the protective order i n June
2012. If a parent abuses the other parent or children, that conduct can support a finding of endangerment even against a child who was not yet born at the time of
the conduct. In re C.A.B. , 289 S.W.3d at 88 6; see also In re J.I.T.P

. , 99 S.W.3d 841, 845 (Tex. App.

— Houston [14th Dist.] 2003, no pet.) (“Domestic violence, want of self control, and propensity for violence may be considered as evidence of endangerment.”)

. Father acknowledged his criminal history and he admitted that he was not around when his other three children were growing up because of his incarcerations. Father also admitted that since 2007, after serving fi fteen years for murder, attempted murder, and bribery, there has not been a year in which he has not been incarcerated for one charge or another. Additionally, Father’s criminal10

behavior continued even after T.M.’s birth with his incarceration for possessi on of
PCP

— the same drug that T.M.’s mother used before T.M. was born

— and his explanation for possessing the illegal drug was that he was selling drugs at the
time. Father also us ed PCP shortly before going to jail in 2013 and , after his release, used PCP a nd smok ed marijuana . Father admitted that he chose to smoke marijuana even though it would result in preventing him from visiting with T.M. Although Father maintained that he only recently developed substance

- abuse problems, Father had previously been conv icted of possession of marijuana in 2009, and Dr. Westhoven’s psychological evaluation reflected that Father had reported “an extensive history of drug abuse” and noted that he “admitted to being addicted to cocaine, marijuana, and PCP.” Father’s extensive history of violent crime, imprisonment, and substance abuse both before and after T.M.’s birth demonstrates a course of conduct sufficient to support an endangerment finding.
Additionally, w e reject Father’s contention that his conduct cannot support

ter mination because it was the result of allegedly treatable psychological disorders. Although mental illness or incompetence of a parent alone are not grounds for terminating the parent

- child relationship, a parent’s mental state may be considered
in determi ning whether a child is endangered if that mental state allows the parent to engage in conduct that jeopardizes the physical or emotional well

- being of the
child. See In re T.G.R.

- M. , 404 S.W.3d 7, 1 4 (Tex. App.

— Houston [1st Dist.] 2013, no pet.); Jordan v . Dossey , 325 S.W.3d 700, 72 3 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied). Thus, the jury could have considered Father’s mental state when determining whether Father’s course of conduct endangered T.M.’s
well

- being.

T he jury also could have discount ed Father’s argument that he was getting help for his psychological problems and simply needed more time to work on11

them , because t here was evidence that Father had sought or been ordered to undergo treatment in the past but did not follow through. Dr. Wes thoven testified
that Father had reported psychological or emotional problems since the murder he
committed in 1991 , but “he never followed any recommendations to get any kind of psychiatric treatment or medication for those symptoms.” T he 2010 protective order Mother obtained against Father also ordered Father to complete a BIP program, but Father never sought to comply with that portion of the order. Additionally, Father testified that he attended some Narcotics Anonymous meetings in jail and attended bot h Narcotics Anonymous and Alcoholics Anonymous meetings after his release , but Father’s own documentation of his
efforts showed that he waited until the month before trial to begin substance

- abuse counseling and treatment. Thus, the jury could have reasona bly concluded that
Father’s mental

- health and substance

- abuse issues would likely recur and further jeopardize T.M.’s well

- being. See In re R.W. , 129 S.W.3d 732, 741 (Tex. App.

— Fort Worth 2004, pet. denied ) (“the jury was not required to ignore a long hist ory of dependency and destructive behavior merely because it allegedly abated before trial”) ; In re M.G.D. , 108 S.W.3d 508, 514 (Tex. App.

— Houston [14th Dist.] 2003, pet. denied) (“ [ E ] vidence of a recent turnaround should be determinative only if it is rea sonable to conclude that rehabilitation, once begun, will surely continue.”)

. Based on the record before us, we conclude a reasonable fact finder could
have formed a firm belief or conviction that Father engaged in conduct that endangered the p hysical or emotion al well

- being of T.M. See , e.g. , In re A.R.M

. , 2014 WL 1390285, at *7

– 9; In re C.A.B. , 289 S.W.3d at 88 6

– 87

. W e hold that the evidence supporting termination under Family Code section 161.001(1)(E) is legally and factually sufficient. We overrule Fa ther’s second issue.12

Best Interest of the Child A strong presumption exists that the best interest of the child is served by keeping the child with its natural parent, and the burden is on DFPS to rebut that presumption. In re U.P. , 105 S.W.3d at 230

. The factors the trier of fact may use in a termination case to determine the best interest of the child include: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the p resent and future emotional and physical danger to the child; (4) the parental abilities of the persons seeking custody; (5) the programs available to assist those persons seeking custody in promoting the best interest of the child; (6) the plans for the c hild by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate the existing parent

- child relationship is not appropriate; and (9) any excuse for the parent ’ s ac ts or omissions. Holley v. Adams , 544 S.W.2d 367,
371

– 72 (Tex. 1976) ; In re U.P. , 105 S.W.3d at 230; see also Tex. Fam. Code § 263.307(b ) (listing factors to consider in evaluating parent ’ s willingness and ability to provide the child with a safe environment).
Father contends that the presumption in his favor is not rebutted because the
evidence showed that he visited with T.M. “througho ut the case” at D.H.’s home , he has no prior history with the Department, and his children testified favorably concerning his relationship with T.M. and the positive effect the child has had on
him . Father suggest s that , because D.H. is willing to allow hi m and his family to continue visiting T.M., Father will have continue d interaction with T.M. and, if his rights are not terminated, he may continue to qualify for services and improve such that he will have a positive impact on T.M. Father also contends th at he and his family are in a better position than D.H., who was 57 years old at the time of trial,

to provide for the care T.M. will continue to need after she turns eighteen

. Thus,13

Father contends, the Holley factors weigh in favor of not terminating his parental rights to T.M.
When reviewing the sufficiency of the evidence supporting the best interest finding, evidence proving one or more of the statutory grounds for termination also may be probative in determining that termination is in the best intere st of the
child. In re C.H. , 89 S.W.3d at 2 8; I n re A.R.M. , 2014 WL 1390285, at *10

. Although Father contends that he is “finally finding out that he needs help and is willing to do it for T.M.’s sake , ” t he jury was entitled to infer from Father’s long history of criminal cond uct, incarceration, and drug use , as detailed above, that his
conduct in the future i s unlikely to improve. Additionally, although Father complained that he had insufficient time to comply with all of the requirements of his service plan, he also acknowled ged failing to comply with the plan’s requirements by taking illegal drugs and refusing the required drug testing, thereby forfeiting his ability to visit T.M.
As support for his parenting abilities, Father points to a portion of Dr.
Westhoven’s psychiatr ic evaluation reflecting positively on him, but in the same
document Dr. Westhoven ultimately expresses concerns about Father’s ability to provide for T.M.’s needs:
[Father] reported a positive attitude toward parenting and seemed accepting of his daughter ’ s special needs

. He expressed a desire to provide and protect her and a willingness to place her needs ahead of his own. [Father] seems to have an understanding of effective parenting strategies and showed maturity in his view of parenting. S ignificant co ncerns, however, are raised regarding his ability to provide an appropriate setting for a child, particularly one with special needs, given the personality characteristics and mental health symptoms described above. If visitation between [Father] and his d aughter continues, it is recommended that it remain supervised at all times

. There is concern given the characterological nature of [ F ather] ’ s problems, extensive history of substance abuse, and14

ongoing criminal history that he may not be able to provide a consistently safe and stable environment for her, regardless of his intentions. (Emphasis in original). Moreover, Father testified that he was unable to care for T.M. even as of the time of trial, and he expressed satisfaction with T.M.’s current placemen t with D.H. Instead, Father asked that he be allowed to retain his parental rights while T.M. remained in D.H.’s care until some indefinite time in the future when he would be able to “step up” as a parent. On appeal, Father requests that the

court reverse the termination order, appoint the Department sole managing conservator with Father having possessory conservatorship rights, and remand the case to the trial court to assess possession and access schedules for T.M.

P rompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest. Tex. Fam. Code § 263.307(a)

. After
T.M. was born in 2012 , the Department arranged for D.H. to take T.M. home from the hospital , and T.M. has since spent her entire life in D.H. ’s c are , with the exception of the two months the child was placed with Mother. D.H. and her own mother care for the child, and D.H. sees that T.M. receives her regular doctor visits and therapy sessions. D.H. testified that , if Father’s rights are terminated, she

want s to adopt T.M. so that she can continue having the child in her life. D.H. also testified that T.M. calls her “mama” and they have bonded. The Department expressed satisfaction with D.H.’s care of T.M. , and even Father acknowledges the
evidence s hows that D.H. “loves [T.M.], cares for her medical needs and takes
excellent care of her

. ” Based on the evidence presented, the jury could have reasonably formed a firm belief or conviction that terminat ing Father’s parental rights was in T.M.’s best inte rest so that T.M., a special needs child, could promptly achieve permanency in her life through adoption by D.H. See In re
T.G.R.

- M. , 404 S.W.3d at 17; In re M.G.D. , 108 S.W.3d at 513

– 14.15

Applying the applicable Holley factors to the evidence, we conclud e that legally and factually sufficient evidence supports the trial court’s finding that termination of Father’s parental rights was in the best interest of T.M.

C ONCLUSION Having concluded that the evidence is legally and factually sufficient to

suppor t the trial court’s findings that Father engaged in conduct which endangered T.M.’s physical or emotional well

- being and that the termination of Father’s parental rights is in the child’s best interest, we affirm the trial court’s judgment
terminat ing Fath er’s parental rights to T.M.

/s/ Ken Wise Justice

Panel consists of Justices Christopher, Donovan, and Wise.