LETICIA HINOJOSA JUSTICE

On appeal from the 430th District Court of Hidalgo County, Texas.

Before Justices Hinojosa, Tijerina, and Silva

MEMORANDUM OPINION

LETICIA HINOJOSA JUSTICE

This appeal arises from a trial court's order terminating the parental rights of appellant A.G., the biological father of A.D.A. By two issues, A.G. argues: (1) the trial court erred in terminating his parental rights under Texas Family Code § 161.001(b)(1)(E) because the Texas Department of Family and Protective Services (the Department) either expressly or impliedly abandoned ground (E) as a basis to terminate; and (2) the evidence was legally and factually insufficient to support grounds for termination under part (E) of Texas Family Code § 161.001(b)(1) or that the termination was in the child's best interests. We affirm.

I. Background

The Department filed an original petition for the protection and conservatorship of A.D.A., and for the termination of A.G.'s parental rights on August 3, 2018. In its petition, the Department asserted numerous grounds for termination against A.G., including §§ 161.001(b)(1)(D)-(H), (K), (M)-(P) of the family code. The associate court appointed the Department as temporary managing conservator on August 6, 2018. Trial began on October 29, 2019.

A. The Associate Court Trial

1. David Calvo

David Calvo, a conservatorship supervisor with the Department, testified that he supervised this case from August 2018 to early June 2019. He explained that A.D.A., born in 2018 and three-years-old at the time of trial, had serious health problems such as pulmonary hypertension, esophageal lacerations, and a gastrostomy tube for feedings and fluid intake. Calvo also stated that A.D.A. had a pulmonologist and regular appointments with occupational, physical, and speech therapists.

Calvo testified that he met A.G. when A.G. participated in a family group conference in the fall of 2018. Per Calvo, A.G. told him he had just returned from Mexico and "was on the run." A.G. had previously served time in a federal prison for a controlled substance crime and for false statements regarding a weapon's purchase. A.G. had been released on federal parole. Calvo reported that A.G. was upset that A.D.A.'s mother was not properly caring for A.D.A. and had returned to the United States to obtain custody.

Calvo stated that A.G. completed a psychological evaluation in March 2019, pursuant to the family plan of service, but did not complete the court-ordered individual therapy, parenting training, training regarding A.D.A.'s medical care, or a substance abuse assessment. Calvo stated that A.G. submitted to three random drug tests. The results from March of 2019 and April 2019 were negative, but in May 2019, A.G. tested positive for marijuana. He was also arrested in late May or early June 2019 for an alleged domestic disturbance incident with K.M.A. The arrest led to A.G.'s incarceration for a parole violation. He remained imprisoned until November 2019.

According to Calvo, A.G. told the Department that either his mother in Mexico, his maternal aunt, or his sister in North Carolina could provide a home for A.D.A. Upon investigation, however, both the grandmother and the maternal aunt admitted that they could not care for the child, and the Department determined that A.G.'s sister's home was unfavorable due to domestic violence and financial concerns.

Calvo testified that the Department had a concern that K.M.A. could not care for A.D.A.'s medical needs, therefore, the Department placed A.D.A. in a home with foster parents D.B. and K.B. The Department later moved A.D.A. into another home located in San Antonio where licensed professionals could attend to his medical needs. K.M.A. purportedly lived in Hidalgo County. Calvo testified that K.M.A. was offered transportation to see her son monthly, but she failed to take advantage of it.

2. Norma Alvarado

Norma Alvarado testified that she became A.D.A.'s conservatorship caseworker in August 2019, after Calvo. Alvarado's first contact with A.G. was in 2019 while he was incarcerated for parole violation. He was released in November 2019. She testified that A.G. next contacted her in February of 2020, when he was residing in North Carolina with his sister. Alvarado informed him that he needed to complete the court-ordered services as part of the family reunification plan. She explained that he would have to inquire about the classes in his current state and pay for them out-of-pocket as he was no longer in Texas. A.G. undertook Alvarado's advice and attempted to take some classes at his own expense, but then all services stopped due to the coronavirus pandemic. Alvarado also stated that while in North Carolina, one of his drug tests was positive for marijuana. In April of 2020, A.G. returned to Hidalgo County, Texas, but then he moved to Minnesota in June.

Alvarado testified that A.G. visited A.D.A. one time in person during her management of the case: the Department provided him a one-way bus ticket from North Carolina to Texas in March 2020. A.G. was able to visit with his son in person for two hours only due to A.D.A.'s feeding schedule. A.G. then had to pay for his lodging and return trip to North Carolina.

In the month prior to trial, A.G. had weekly virtual visits with his son. Alvarado reported that both A.G. and A.D.A. enjoyed these calls. At the time of trial, however, A.G. had not completed any of the services mandated by the court plan, such as individual counseling, parenting, and substance abuse assessment classes. In addition, Alvarado testified that A.G. did not receive the medical training necessary to provide A.D.A.'s medical care, as he would need to attend A.D.A.'s appointments to learn those skills. Alvarado admitted, however, that A.G. may not have been able to attend those appointments even if he wanted to due to pandemic concerns.

3. A.G.

A.G. testified that he loves A.D.A. and does not want him to grow up in a foster home. A.G. admitted that he was not present at the birth of A.D.A. and first met his child when A.D.A. was three months old.

A.G. testified that while he was living in North Carolina with his sister, he attempted to complete his court-ordered services. He also visited his son once during this time but conceded that traveling was expensive. He has only been with his son physically for about three or four days in his son's life-for two days when A.D.A. was an infant and then when he visited Texas from North Carolina in March 2020. A.G. stated that he was told he would only be able to see A.D.A. for two hours during that visit due to A.D.A.'s feeding schedule but that it was still worth the thirty-hour bus ride to do that. A.G. stated that he moved back to Texas to be closer to his son but then had no place to live. He moved to Mexico for a stint but then had to keep moving for his job as a diesel mechanic. He has lived in Laredo, Brownsville, and Corpus Christi for his job at different times.

At the time of trial, A.G. testified that he had been residing in Minnesota for two months. He was living in a hotel and acknowledged that he "[had] nothing to offer [A.D.A.] right now." He was, however, trying to find a home so the Department could do a home study. A.G. acknowledged that his status as a convicted felon made it difficult to find a place to live because of required background checks for housing. According to him, his criminal history includes federal convictions for making a false statement and escaping federal custody, and state convictions for theft, assault, and aiding and abetting. He has a pending state charge for evading arrest. A.G. also admitted that he still occasionally smokes marijuana.

A.G. currently works for an independent mechanic shop in Minnesota. Although he stated that he could find work in Texas, he does not have a place to live in Texas. He claimed that the Department never offered any assistance in looking for employment in Texas. Further, he asserts he can make more money in Minnesota.

A.G. stated that he has two other children, ages ten and eleven, that live with their mother in Mexico. He stated he sends them money weekly through his mother and visits with them virtually. A.G. stated that he sent clothes or toys to A.D.A. whenever he could and also asked the Department how he could pay child support.

Regarding A.D.A.'s mother, K.M.A., A.G. stated that she had changed. He claimed that whereas she used to be caring mother for their son, now there was a "drastic" change where she "actually didn't care about anything in life."

B. The Associate Court's Ruling

On November 10, 2020, during closing statements, the Department urged the following:

At this time, the Department is asking the Court to terminate the parental rights of the mother and the father, based on 161.001[(b)](1)(N), and 161.001[(b)](1)(O), and find that it's in the best interest of the child.

Section 161.001(b)(1)(N) provides that the trial court may order parental termination if there is clear and convincing evidence that a parent "constructively abandoned the child who has been in the permanent or temporary managing conservatorship" of the Department. Tex. Fam. Code Ann. § 161.001(b)(1)(N). Section 161.001(b)(1)(O) sets forth that termination may be ordered if a parent "failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in" the Department's conservatorship for nine months, as a result of the child's removal from the parent. Id. § 161.001(b)(1)(O).

On November 13, 2020, the final day of trial, the associate court took judicial notice of all the documents in the court's file. The Department's pleadings, included in this file, listed a litany of grounds for termination, including ground (E). The associate court then terminated the parental rights of both K.M.A. and A.G. Regarding A.G., the court ruled as follows:

With regard to father, [A.G.], this was another complicated issue. Neither ground (N) or (O) will apply to the father, in this case. Father has made significant efforts to maintain contact with the child, including traveling halfway across the country to do so. And the child wasn't removed from him, which is a requirement under ground (O). However, father, in this case, through his own testimony[, ] indicated he had previous convictions, with the

most recent being a parole violation or probation violation. The Court has reviewed the cases under this matter. And although the State has not requested a termination under ground "E" of the Texas Family Code, such arrests create an instability in the child's life. And, in fact, he came back over here, and he got arrested, did some time, couldn't complete his services, and now we're still waiting on him. [A.D.A.] is waiting on him, and he still hasn't gotten his feet down on the ground. There's instability that's there, and that's endangering to this child. The Court's going to find that the Department has satisfied the grounds listed in their petition under 161.001[(b)](1)(E) of the Texas Family Code.

The associate court's written order further clarified this ruling:

8.1 The Court finds by clear and convincing evidence that termination of the parent-child relationship between [A.G.] and the child [A.D.A.], is in the child's best interest.

8.2 Further, the Court finds by clear and convincing evidence that [A.G.] has:

8.2.1 engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, pursuant to §161.001(b)(1)(E), Texas Family Code;

8.3. IT IS THEREFORE ORDERED that the parent-child relationship [b]etween [A.G.] and the child [A.D.A.] is terminated.

C. A.G.'s De Novo Appeal to District Court

The same day, November 13, 2020, A.G. filed a de novo appeal to the 430th Judicial District Court of Hidalgo County, Texas. In his de novo appeal, A.G. asserted that the Department sought termination on two grounds only: constructive abandonment under Texas Family Code § 161.001(b)(1)(N) and failure to comply with court-ordered services in § 161.001(b)(1)(O). The trial court, however, denied these grounds but ordered termination under § 161.001(b)(1)(E), finding that A.G. "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." A.G. argued this was error because the Department failed to mention ground (E) in its opening and closing remarks, and by doing so, had either expressly or impliedly abandoned that claim.

Further, A.G. argued:

[T]here was no evidence presented that [A.G] ever committed any criminal offense in the presence of his son or that would directly endanger his son, nor that he ever knowingly placed his son with someone who would endanger his son. [A.G.] respectfully submits that his past arrests, when his son was not in his custody, are not enough alone to meet this ground.

The district court disagreed with A.G.'s assertions. It signed an order upholding the associate judge's order and dismissing A.G.'s de novo appeal on July 6, 2021. This appeal ensued.

II. Abandonment of § 161.001(b)(1)(E)

By his first issue, A.G. argues the trial court erred in terminating his rights on § 161.001(b)(1)(E) because the Department either expressly or impliedly "abandoned" this ground by failing to mention it in either its opening or closing arguments.

A. Applicable Law and Standard of Review

"Whether a pleading has been abandoned is a question of law which we review de novo." In re Shaw, 966 S.W.2d 174, 177 (Tex. App.-El Paso 1998, no pet.); In re C.C.J., 244 S.W.3d 911, 921 (Tex. App.-Dallas 2008, no pet.). Formal amendment of the pleadings is not required to show abandonment, and a stipulation may be sufficient to demonstrate abandonment of a pleading. In re C.C.J., 244 S.W.3d at 921. "A stipulation is an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys respecting some matter incident thereto." Id. (citing Laredo Med. Grp. v. Jaimes, 227 S.W.3d 170, 174 (Tex. App.-San Antonio 2007, pet. denied)). Parties may limit the issues to be tried by stipulation. Laredo, 227 S.W.3d at 174. However, if a stipulation is ambiguous or unclear, the trial court should disregard it. Id. "In construing a stipulation, a court must determine the intent of the parties from the language used in the entire agreement, examining the surrounding circumstances, including the state of the pleadings, the allegations made therein, and the attitude of the parties with respect to the issue." Id. "[A] stipulation should not be given greater effect than the parties intended, and should not be construed as an admission of a fact intended to be controverted." Id.

Waiver, or the "intentional relinquishment of a known right," is also a question of law that is reviewed de novo. G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 511 (Tex. 2015). Waiver can occur expressly through a clear repudiation of the right. Id. It can also occur impliedly by engaging in conduct that is "unequivocally inconsistent with" the right. Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 353 (Tex. 2005). "There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right." Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (per curiam).

B. Analysis

Section 161.001(b)(1)(E) provides a ground for parental termination if a parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(E).

We agree with A.G. that the Department did not mention ground (E) in its closing argument. During its closing, the Department informed the court that it was asking to terminate A.G.'s rights "based on 161.001[(b)](1)(N), and 161.001[(b)](1)(O) . . . ." However, because the Department's live pleadings requested termination on multiple grounds, including § 161.001(b)(1)(E), we do not agree that this announcement was an unequivocal stipulation or waiver that the Department no longer sought parental termination on any other grounds. See In re C.C.J., 244 S.W.3d at 921. Throughout the trial, the Department elicited testimony regarding A.G.'s extensive criminal history, the fact that he had spent only three to four days in person with his son throughout A.D.A.'s three-year-old life, and his continued drug use with the positive marijuana tests. The Department also highlighted that A.G.'s housing situation was unstable as he had lived in multiple locations, such as Texas, North Carolina, Minnesota, and Mexico. Further, A.G. failed to complete his court-ordered service plan, which included specialized training on how to provide for A.D.A.'s medical needs.

The associate court also recognized that the Department's live pleadings listed multiple grounds for termination when it explained why it was terminating A.G.'s parental rights:

There's instability that's there, and that's endangering to this child. The Court's going to find that the Department has satisfied the grounds listed in their petition under 161.001[(b)](1)(E) of the Texas Family Code.

Analyzing the intent of the Department, including the state of the pleadings and the allegations made therein, and the surrounding circumstances of the case, such as the testimony the Department elicited regarding A.G., we hold that the Department did not abandon ground (E) of its original petition when it only mentioned grounds (N) and (O) in its closing argument. See Laredo, 227 S.W.3d at 174; see also In re M.F.L., No. 10-16-00256-CV, 2016 WL 7477929, at *2 (Tex. App.-Waco Dec. 28, 2016, no pet.) (mem. op.) ("In the present case, the Department argued throughout trial for termination of parental rights. There is no unequivocal statement by the Department that it is not seeking termination for either parent."). Further, we hold the Department did not expressly or impliedly waive ground (E) as a basis for termination for the same reasons. See Jernigan, 111 S.W.3d at 156. The Department's efforts to terminate A.G.'s parental rights remained consistent throughout the trial. Accordingly, we conclude the trial court did not err in ordering parental termination on the basis of § 161.001(b)(1)(E). See In re Shaw, 966 S.W.2d at 177. We overrule A.G.'s first issue.

III. Sufficiency of the Evidence

By his second issue, A.G. challenges the sufficiency of the evidence to support the associate court's finding that he "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of [A.D.A.]." Tex. Fam. Code Ann. § 161.001(b)(1)(E).

A. Applicable Law and Standard of Review

"[I]nvoluntary termination of parental rights involves fundamental constitutional rights" and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi-Edinburg 2010, no pet.); see In re K.M.L., 443 S.W.3d 101, 121

(Tex. 2014) (Lehrmann, J., concurring) ("Termination of parental rights, the total and irrevocable dissolution of the parent-child relationship, constitutes the 'death penalty' of civil cases."). Accordingly, courts should strictly scrutinize all parental termination proceedings. In re K.M.L., 443 S.W.3d at 112.

A trial court may order termination of the parent-child relationship only if it finds by clear and convincing evidence that: (1) the parent committed an act or omission described in family code § 161.001(b)(1); and (2) termination is in the best interest of the child. Tex. Fam. Code. Ann. § 161.001(b)(1), (2). The "clear and convincing" standard falls between the preponderance of the evidence standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re L.J.N., 329 S.W.3d at 671. It is defined as 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 allegations sought to be established." Tex. Fam. Code Ann. § 101.007.

Evidence is legally sufficient to support termination if a reasonable factfinder could form a firm belief or conviction that the finding was true. In re A.C., 560 S.W.3d 624, 630- 31 (Tex. 2018). In conducting a legal sufficiency review, we view all the evidence in the light most favorable to the finding and we consider any undisputed contrary evidence. Id. at 631; see In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) ("Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence."). Evidence is factually sufficient to support termination if, "in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction" that the finding was true. In re A.C., 560 S.W.3d at 631; In re J.F.C., 96 S.W.3d at 266.

B. Endangerment 1. Law

"Endanger" means "to expose to loss or injury; to jeopardize." Tex. Dep't of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The term means "more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment," but "it is not necessary that the conduct be directed at the child or that the child actually suffers injury." Id.; see In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). "[D]anger to a child need not be established as an independent proposition and may be inferred from parental misconduct." Walker v. Tex. Dep't of Fam. & Protective Servs., 312 S.W.3d 608, 616 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). "The relevant inquiry is whether evidence exists that a parental course of conduct endangered the child's physical or emotional well-being." Id. at 616-17. Termination under part (E) "requires a voluntary, deliberate, and conscious course of conduct by the parent" and must be based on more than a single act or omission. See In re P.W., 579 S.W.3d 713, 726 (Tex. App.-Houston [14th Dist.] 2019, no pet.); Ruiz v. Tex. Dep't of Fam. & Protective Servs., 212 S.W.3d 804, 818 (Tex. App.-Houston [1st Dist.] 2006, no pet.). "In reviewing the sufficiency of the evidence under subsection (E), we 'consider conduct both before and after the Department removed the child from the home.'" E.E. v. Tex. Dep't of Family & Protective Servs., 598 S.W.3d 389, 405 (Tex. App.-Austin 2020, no pet.).

"A parent's criminal history-taking into account the nature of the crimes, the duration of incarceration, and whether a pattern of escalating, repeated convictions exists-can support a finding of endangerment." In re J.F.-G., 627 S.W.3d 304, 313 (Tex. 2021). An offense committed by a parent before the birth of the parent's child "can be a relevant factor in establishing an endangering course of conduct." In re E.N.C., 384 S.W.3d 796, 804-05 (Tex. 2012). Conduct that subjects a child to a life of uncertainty and instability because the conduct creates a probability that the parent will be jailed is conduct that endangers both the physical and emotional well-being of a child. Walker, 312 S.W.3d at 616-17; see also In re M.M., No. 13-13-00543-CV, 2014 WL 895514, at *6 (Tex. App.-Corpus Christi-Edinburg Mar. 16, 2014, no pet.) (mem. op.).

In addition, a fact finder may "infer that a parent's lack of contact with the child and absence from the child's life endangers the child's emotional well-being." E.E., 598 S.W.3d at 405-06; In re U.P., 105 S.W.3d 222, 236 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (concluding that parent's criminal conduct, which resulted in the parent's imprisonment and absence from child's life, created an "emotional vacuum" in the child's life that endangered the child's well-being); see also In re A.P., No. 13-20-00258-CV, 2020 WL 6789040, at *6-7 (Tex. App.-Corpus Christi-Edinburg Nov. 19, 2020, no pet.) (mem. op.). Chronic uncertainty and instability can also endanger the physical and emotional well-being of a child. In re A.R.O., 556 S.W.3d 903, 910-11 (Tex. App.-El Paso 2018, no pet.) (holding that the mother's history of housing instability, failure to provide for the child's basic needs, and sporadic visitation supported a finding of endangerment under § 161.001(b)(1)(E)). A long history of irresponsible choices is probative evidence that a parent has engaged in conduct that has endangered a child. See In re J.O.A., 283 S.W.3d at 346. Also, conduct that demonstrates "[d]omestic violence, want of self-control, and propensity for violence" may also be considered. E.E., 598 S.W.3d at 405.

Failure to participate in a service plan can also be considered as part of the endangerment analysis. See In re J.A.V., 632 S.W.3d 121, 132 (Tex. App.-El Paso 2021, no pet.) (concluding court may consider a parent's failure to complete a service plan as part of the endangering conduct analysis); In re R.F., 115 S.W.3d 804, 811 (Tex. App.-Dallas 2003, no pet.) (same).

Finally, "a parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct." In re J.O.A., 283 S.W.3d at 345. A parent's continued use of illegal substances constitutes endangering parental conduct because "it exposes the child to the possibility that the parent may be impaired or imprisoned". In re D.J.W., 394 S.W.3d 210, 221 (Tex. App.-Houston [1st] Dist. 2012, pet. denied) (citing Walker, 312 S.W.3d at 617). A pattern of drug abuse will support a finding of endangerment even if there is no evidence that the drug use directly injured the child. Vasquez v. Tex. Dep't of Protective & Reg. Servs., 190 S.W.3d 189, 196 (Tex. App.- Houston [1st Dist.] 2005, pet. denied).

2. Analysis

A.G. argues that he "never had possession, custody, or access of A.D.A., so there is no way that he could have endangered the physical or emotional well-being of A.D.A." While it is true that A.G. had limited physical contact with his son, we find that the circumstances behind the limited contact supports, not weakens, the court's finding of endangerment.

The evidence adduced at trial established that A.G. spent only three to four days with A.D.A. in person throughout the child's entire lifetime. While A.G. reportedly FaceTimed his son regularly on the phone, the testimony revealed that the phone calls mainly occurred in the month prior to trial. Because A.G.'s criminal history led to incarceration in both state and federal prisons during the pendency of this case, he was not a reliable, constant presence in A.D.A.'s life. A.G.'s housing instability also supported a finding of endangerment: in three years, A.G. lived in three states (Texas, North Carolina, and Minnesota) and two countries (the United States and Mexico). Though the record showed A.G. completed a psychological evaluation in March 2019, he did not complete the remainder of the court-ordered services, including individual therapy, parenting training, training regarding A.D.A.'s medical care, or a substance abuse assessment. While the record showed that some of these services were halted during the coronavirus pandemic, A.G. did not testify regarding how he planned to resume these trainings in Minnesota. A.G. also admitted to continued marijuana use. And while we recognize that A.G. made a trip from North Carolina to Texas at one point to visit his son when the Department provided him with a one-way bus ticket, and that he tried to support his son at times with clothing and toys, A.G. also admitted that he had "nothing to offer" A.D.A., a toddler with serious medical needs who requires constant care.

Considering all of this evidence in the light most favorable to the judgment, we conclude that a reasonable trier of fact could have formed a firm belief or conviction, based on clear and convincing evidence, that A.G. engaged in a course of conduct which endangered A.D.A.'s physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(E); In re J.L., 163 S.W.3d 79, 85 (Tex. 2005). The evidence to the contrary was not so significant as to preclude such a finding. See In re J.F.C., 96 S.W.3d at 266.

C. Best Interests

A.G. also challenges the sufficiency of the evidence to support the trial court's finding that termination of his parental rights was in A.D.A.'s best interests.

1. Law

There is a strong, though rebuttable, presumption that keeping a child with a parent is in the child's best interest. Tex. Fam. Code Ann. § 153.131; In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). Factors that we consider in determining whether termination of parental rights is in a child's best interest include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parenting abilities of the parties seeking custody; (5) the programs available to assist the parties seeking custody; (6) the plans for the child by the parties seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions committed by the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions committed by the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The party seeking termination is not required to prove all nine Holley factors; in some cases, undisputed evidence of just one factor may be sufficient to support a finding that termination is in the best interest of the child. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

A child's need for permanence through the establishment of a "stable, permanent home" has been recognized as the paramount consideration in determining best interest. In re G.A.C., 499 S.W.3d 138, 141 (Tex. App.-Amarillo 2016, pet. denied); In re K.C., 219 S.W.3d 924, 931 (Tex. App.-Dallas 2007, no pet.); see Tex. Fam. Code Ann. § 263.307(a) (providing that, in considering whether parents are willing and able to provide a safe environment, "the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest"). A factfinder may consider the consequences of failure to terminate parental rights and may also consider that the child's best interest may be served by termination so that adoption may occur. See In re K.C., 219 S.W.3d at 931.

2. Analysis

We analyze the Holley factors in turn. Regarding the first element, we do not know what the desires of the A.D.A. are due to his age. However, Alvarado reported that A.D.A. seemed happy during the FaceTime calls she witnessed between A.G. and the child prior to trial. This factor remains neutral in the best interests' determination because we do not know A.D.A.'s preference.

The second and third Holley factors concern the emotional and physical needs, and the emotional and physical dangers, to the child now and in the future. 544 S.W.2d at 372. The record revealed that A.D.A. was a medically vulnerable child diagnosed with pulmonary hypertension and esophageal lacerations. A.D.A. required a gastrostomy tube to be nourished and hydrated. Calvo testified that A.D.A. had a pulmonologist and regular appointments with occupational, physical, and speech therapists. The Department elicited testimony that specific, in-person training was required to learn how to care for A.D.A., and that A.G. never received this training. Analysis of these factors leans in favor of the trial court's best interest holding, as A.G. did not demonstrate that he was equipped to handle his son's emotional and especially physical needs.

The fourth Holley consideration focuses on A.G.'s parenting abilities. Id. The evidence adduced at trial revealed that A.G. spent only three to four days with A.D.A. in person throughout the child's entire lifetime. The first time A.G. spent time with his son was for two days when the child was three months old. The second time, A.G. spent only two hours with his son, although that was due to A.D.A.'s strict feeding schedule and not because of A.G.'s choice. We acknowledge that A.G. traveled by bus and paid for his own return travel and lodging just to see his son for a limited amount of time, but that only occurred once. These limited visitations did not provide enough time to showcase A.G.'s parenting abilities. While Alvarado testified that both A.G. and A.D.A. enjoyed FaceTime calls prior to trial, A.G. did not demonstrate whether he could care for A.D.A.'s emotional and/or physical needs in person or on a long-term basis. This factor therefore leans in favor of the trial court's best interests' finding.

The fifth Holley factor concerns the programs available that could assist A.G.'s custody claim. Id. As part of a court-ordered plan, A.G. was required to take a parenting class, individual therapy, medical training to learn about A.D.A.'s gastrostomy tube and other needs, and substance abuse counseling. He did not do so. A.G. admitted that some of the out-of-state services were expensive and that he had to pay for those out-of-pocket; however, he also stated he left Texas because other states could pay him more as a diesel mechanic. Further, had he stayed in Texas, those programs could be available to him free of charge. This factor supports the trial court's finding.

The sixth Holley factor analyzes the plans for the child by the parent seeking custody. Id. In A.G.'s own words, he "[had] nothing to offer [A.D.A.] right now." This admission, along with the seventh Holley consideration, the stability of A.G.'s home, strongly support the trial court's finding that termination was in A.D.A.'s best interest. Id. A.G. was unable to provide a stable environment for A.D.A. as he had multiple instances of incarceration in both federal and state prisons prior to and throughout A.D.A.'s life. Further, A.G.'s housing situation was constantly in flux due to his moves to multiple states and countries during A.D.A.'s lifetime, A.G. had no home of his own, and he was currently living in a hotel.

The eighth Holley factor considers the acts or omissions committed by the parent which may indicate that the existing parent-child relationship is not proper. Id. Here, A.G.'s criminal acts, continuous use of marijuana, and unstable home life are affirmative acts that support the trial court's best interests' finding.

Finally, the ninth Holley factor considers any excuses for the acts or omissions committed by the parent. Id. While we understand that A.G. had to pay for his court-ordered services out-of-pocket, he could have received the services for free by remaining in-state. Further, although some of the trainings were halted due to the public health concerns created by the coronavirus pandemic, A.G. did not testify regarding any plan to resume services.

Considering all the evidence in the light most favorable to the judgment, we conclude that a reasonable trier of fact could have formed a firm belief or conviction, based on clear and convincing evidence, that termination of A.G.'s parental rights was in the best interest of A.D.A. See In re J.L., 163 S.W.3d at 85. Further, the evidence to the contrary was not so significant as to preclude such a finding. See In re J.F.C., 96 S.W.3d at 266. We overrule A.G.'s second issue.

IV. Conclusion

The trial court's judgment is affirmed.