Opinion
NO. 09-16-00442-CV
05-18-2017
IN THE INTEREST OF J.B. AND D.B.
On Appeal from the 418th District Court Montgomery County, Texas
Trial Cause No. 15-06-06310-CV
MEMORANDUM OPINION
L.B. appeals from an order terminating his parental rights to his minor children, J.B. and D.B. The jury found, by clear and convincing evidence, at least one of the alleged predicate statutory grounds for terminating L.B.'s parental rights and that termination of L.B.'s parental rights is in the best interest of each child. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (O), (b)(2), 161.003(a) (West Supp. 2016). In issues one through four, L.B. challenges the legal and factual sufficiency of the evidence supporting termination under section 161.001(b)(1)(D), (E), (O), and section 161.003(a) of the Texas Family Code. In issue five, L.B. challenges the legal and factual sufficiency of the evidence supporting the finding that termination was in the best interest of the children. We affirm the trial court's order terminating L.B.'s parental rights to J.B. and D.B.
We use initials to protect the identity of the children. See Tex. R. App. P. 9.8. Other family members and witnesses are also identified, as necessary, with initials and designations based on their respective relationship with the children. See Tex. Fam. Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8. The trial court also terminated the parental rights of J.B.'s and D.B.'s mother, L.C., but L.C. is not a party to this appeal.
We cite to the current version of the statutes because the amendments do not affect the outcome of this appeal.
BACKGROUND
The Department of Family and Protective Services (the "Department") filed a petition "request[ing] emergency orders and/or attachments required to gain possession of the children as authorized by Chapter 262, Texas Family Code." In the petition, the Department requested permission to remove the children, the appointment of the Department as temporary sole managing conservator of the children, and other temporary orders. In the affidavit attached to the petition, the Department alleged that on June 2, 2015, the Department received a report of the neglectful supervision and physical neglect of J.B. and D.B. by L.B. The affidavit included, in part, the following:
The petition was originally filed in San Jacinto County, but the suit was subsequently transferred to Montgomery County.
[L.B.] was arrested on June 2, 2015 for Possession of a Controlled Substance and Child Endangerment. At approximately 4:00pm on June 2, 2015, [L.B.] left his children, [J.B.] (age 4) and [D.B.] (age 1) in a vehicle with the windows rolled up and locked, with the vehicle running and the AC only blowing warm air. [D.B.] was found to be standing in the front seat and sucking on a Gillette razor handle and [J.B.] was in the middle of the front seat. When [L.B.] arrived back to the vehicle he did not appear concerned about the children's safety. The children were observe[d] and did not appear to be in any distress and medical attention was not needed. Inside the vehicle scissors were found in the front seat with the children and open containers of Budlight were found in the car. The car seats were found to be under piles of clothing and trash. On the back seat there were feces from an old diaper. Also located in the vehicle were several bottles of prescription drugs with no labels, there were approximately 9-10 bottles found. The children were observed to be dirty and covered in bug bites. It appeared that one of the bites on [D.B.] was infected. The children were not wearing shoes at the time.
On call investigator, Brenda Snyder, responded to the San Jacinto Sheriff's Office and met with law enforcement, the children and the father. Investigator Snyder spoke with Deputy Atchley who was the officer on scene. Deputy Atchley stated that when he arrived he found the children in the vehicle with no adult supervision. He asked for a witness to watch the children so he could enter the store and locate the parent. When he came out of the store he found [L.B.] beside the vehicle. Deputy Atchley stated he spoke with [L.B.] and asked him to open the car so the children could be observed and he saw the scissors on the seat and felt that the AC was blowing warm. Deputy Atchley also located the prescription pills in the car. When Deputy Atchley notified [L.B.] that he was being arrested [L.B.] threw himself on the ground and acted as though he was having a seizure.
Investigator Snyder requested to speak with the father and when she did he stated that he stopped at the store to buy some bananas and he did not believe his children were at risk being in the vehicle as it was running.According to the affidavit, J.B.'s and D.B.'s mother, L.C., initially could not be located and the children were placed with a family member, Y.B. The affidavit states that L.C. was subsequently located but she had been recently released from jail for possession of a controlled substance charge, she was unemployed and living in Katy with a friend, and she approved of the children's placement with Y.B. Y.B. later notified the Department that she could no longer care for the children. The Department contacted L.C., and L.C. told the Department that she was not in a position to care for her children. The affiant concluded that the Department was requesting to be named temporary managing conservator of J.B. and D.B. as a result of L.B.'s current incarceration for leaving the children unattended in a vehicle with safety hazards, L.C.'s instability and inability to properly care for the children, and the inability of another family member to provide for the children.
On June 9, 2015, the trial court signed an order of protection for the children and found that "there is an immediate danger to the physical health or safety of the children or the children have been the victims of neglect or sexual abuse and that continuation in the home would be contrary to the children's welfare[.]" The trial court named the Department temporary sole managing conservator of the children and gave L.B. and L.C. notice that a full adversary hearing would be held on June 15, 2015. On June 15, 2015, after a full adversary hearing, the trial court signed temporary orders and found "that appointment of the parent or parents as managing conservator of the children is not in the best interest of the children because the appointment would significantly impair the children's physical health or emotional development."
The trial court held a termination hearing in October of 2016. Lieutenant Sonny Ray Atchley, a San Jacinto County Constable, testified that on June 2, 2015, he was dispatched regarding an unattended small child in a vehicle in a grocery store parking lot. Atchley explained that he arrived at the parking lot and the adult who had originally called dispatch was near a vehicle "crammed full of junk. . . . maybe an inch or two[]" below the roof of the passenger seat. According to Atchley, the adult who called dispatch reported to Atchley that he had waited a reasonable time before calling law enforcement about unattended children in the vehicle. Atchley testified that he initially saw one "toddler[-]age[d]" child in the vehicle and the child was standing behind the steering wheel with his hands on the wheel and the car engine was on. According to Atchley, the engine was "running hot[,] . . . [and] [t]he air conditioner was blowing, but it was not blowing cold."
Atchley testified that he began to look for a parent or guardian but "[t]here was no one reasonably in the proximity of the parking lot where . . . it would be reasonable that an adult would walk away from the vehicle, like a car, two cars over." Atchley went into the grocery store attempting to find the child's parent or guardian. After "pretty much giv[ing] up on finding an adult[,]" Atchley returned to the vehicle and looked into the back window and saw another child in the backseat of the vehicle. According to Atchley, it was difficult to see the second child because of the "junk . . . that was piled in the back of [] the storage hatchback compartment."
As Atchley was determining how to get into the vehicle, L.B. appeared and then identified himself to Atchley as the owner of the vehicle and a parent of the children. According to Atchley, even though Atchley was confident he had previously searched the parking lot and L.B. was not there, L.B. told Atchley that he had been "just over a couple cars talking to a friend." L.B. also told Atchley that the children were safe in the car and that the doors were locked. Atchley explained that he was concerned for the children because he could see scissors, a screwdriver, lighters, approximately ten prescription drug bottles with pills inside, open empty beer bottles, and items on which a child "could have easily caught himself" were in reach of the children, and L.B. "just didn't seem terribly concerned[.]" Atchley testified that he believed the children had been left in the car more than twenty minutes in mid-afternoon in June and "[t]hat in itself is dangerous." According to Atchley, "there was a booster seat that would have fit the 4 year old in the back that was also under stuff[,] [a]nd there was a car seat upfront that would fit the 1 year old that was under a bunch of stuff[,]" but the seats "clearly weren't being used."
Atchley told L.B. to unlock the door and L.B. unlocked the door. Atchley had dispatch contact CPS. According to Atchley, L.B. intentionally knocked Atchley over when Atchley attempted to put handcuffs on L.B., L.B. was "really ma[king] a scene[,]" and L.B. urinated in the parking lot while medics were checking on L.B. Atchley wrote L.B. a citation for urinating in public and arrested L.B. for abandoning or endangering a child and for possession of dangerous drugs for the prescriptions in the vehicle.
Brenda Snyder testified that she was an investigator for the Department on June 2, 2015, and she met J.B. and D.B. at the Sheriff's Office in San Jacinto County. According to Snyder, a law enforcement officer brought J.B. and D.B. in and their "physical condition was deplorable." Snyder testified that the children smelled and were dirty like they had not bathed recently, the children were not wearing shoes, and D.B. had numerous bug bites on his body. She explained that J.B., the four year old, had minimal verbal skills and was unaware of social boundaries. The children were initially placed with a relative because the children's mother had recently been arrested for possession of a controlled substance and was unable to care for the children at that time.
Kali Little, the Department supervisor for San Jacinto County assigned to the case, testified that she spoke with L.B., and he told her that he left the children in the vehicle because he was fearful that if he took them into the store he might fall on them and injure them because he was disabled. According to Little, L.B. also stated that he believed that J.B. would not open the vehicle door for anyone except L.B., and that L.B. removed the labels from the prescription bottles in the vehicle because "he wasn't in the right mental state." Little testified that the relative with whom the children were initially placed was unable to continue to care for the children and, after the Department determined that no other suitable placement could be made with a family member, the Department filed its petition for custody of the children and placed them in foster care. After Little's investigation, the case was subsequently transferred out of Little's region to Montgomery County, where L.B. lived.
Valerie Gonzalez, another Department caseworker, was then assigned to work on the case. Gonzalez testified that J.B. and D.B. were moved to a foster home in Montgomery County in February 2016. She explained that J.B. had been diagnosed with a speech impairment and a learning disability, and that D.B. was receiving services for early childhood development. Gonzalez testified that initially L.B. and L.C. wanted to comply with their service plans and have their children returned to them. Gonzalez explained that around October 2015, the Department allowed unsupervised and extended visits between J.B. and D.B. and their parents. Gonzalez testified that L.B. and L.C. had been living with L.B.'s mother and that the "return home transition plan was for the parents to continue to reside with the grandmother, and the grandmother being somewhat of a safety monitor for the agency, and a support for the parents."
According to Gonzalez, she received a voicemail from L.B.'s mother during one of the extended visits. L.B.'s mother reported that L.C. had arrived at L.B.'s mother's home intoxicated, had "lashed out at her, used profanity[,]" and L.B.'s mother returned the children back to foster care due to L.C.'s condition. Gonzalez testified that she learned that L.C. was no longer living with L.B. and his mother, and the Department planned to return the children to L.B. to live with L.B. and his mother. According to Gonzalez, that plan changed a few days later when L.B. reported that he was no longer living with his mother due to tension between them, that he wanted the Department to wait until he got his own apartment and not to send the children home with his mother, and that there was a history of trauma and abuse from his mother. Gonzalez testified that L.B. described instances of the trauma and abuse, and that Gonzalez also explained to L.B. that, had the Department known about such history, it would not have considered L.B.'s mother as a support system. L.B. then responded, "Well, I would never leave her alone with my children." According to Gonzalez, L.B. had never mentioned conflict with his mother, and Gonzalez felt as if she had been misled. Gonzalez testified that the Department changed the visits between the children and L.B. to supervised visits after the parents showed "poor judgment about their children's safety[]" and the "parents [were] not really stable in their housing and in what plans they were securing for their children." According to Gonzalez, during a supervised visit with the children in January 2016, L.B. and L.C. appeared to be living out of their car, Gonzalez could not get confirmation where they had been living, and they no longer appeared "well-groomed[.]" In early 2016, Gonzalez had to ask L.B. to leave a meeting because he was uncooperative. The Department was unable to recommend continuing the plan of reunification, and the Department changed the goal to "relative adoption with a concurrent of unrelated adoption." Gonzalez testified that she had concerns regarding whether L.B. had the stability to provide J.B. and D.B. a safe home, whether he was able to meet their needs, and whether he was able to make good decisions for them.
Dr. Jenny Stadler, a psychologist, testified that the Department asked her to evaluate J.B. and his parents, L.B. and L.C. Dr. Stadler explained that she diagnosed L.B. with unspecified psychotic disorder and a learning disorder. According to Dr. Stadler, L.B. also has "a fairly serious memory disorder."
Dr. Victor Love, a licensed therapist, testified that the Department referred L.B. to him, and Dr. Love met weekly with L.B. at scheduled therapy sessions beginning in February 2016 up until the month before trial. Dr. Love testified that L.B. had not accepted responsibility for his actions on the day he was arrested for leaving the children unattended in the car. Dr. Love concluded that L.B. had cognitive problems and could benefit from a psychological evaluation, but L.B. did not believe that he had a mental health condition that needed treatment. According to Dr. Love, L.B. would often present information in a confusing manner and "[t]here was a consistent level of bizarre, illogical content to almost every session[.]" Dr. Love testified that L.B. did not obtain an ordered psychiatric evaluation and did not complete his counseling with Dr. Love. Dr. Love testified that L.B. lacked good judgment regarding his own health. Dr. Love had concerns about L.B.'s ability to take care of his children's health and that L.B.'s illusions about reality might affect how he looks at his children's injuries or health. Dr. Love did not believe that L.B. was ready for his children to be returned to his care, primarily because of L.B.'s failure to address his mental health issues.
A foster father with whom J.B. and D.B. had been placed at one point in the case testified that the children were in his care for approximately nine months. The foster father testified that when J.B. came into his care, J.B. was depressed. The foster father explained that he took J.B. to therapy "for speech and other related issues that he was dealing with[,]" and that he felt that J.B. had progressed while in his care. The foster father described J.B. as aggressive and as having difficulty sharing and interacting with others, and J.B. would constantly want to eat. According to the foster father, the counseling J.B. would attend twice a week while in foster care seemed to help his behavior and help him adjust to structure.
D.B.'s foster mother testified that, at the time of trial, D.B. was two years old and had lived with her, her husband, and their nineteen-month-old daughter for the past eight months. According to D.B.'s foster mother, D.B. had been in other foster homes prior to their home, and when D.B. came into their care he was nonverbal, sick, screamed for most of the day for approximately the first month, "couldn't walk really well[]" because he was overweight and his ear infections affected his balance, and he banged his head against things to comfort himself. D.B.'s foster mother testified that while in their care D.B. participated in speech and physical therapy. D.B.'s foster mother testified that they gave D.B. healthy options to eat to combat his constant desire for food, and that D.B.'s weight was then appropriate and he is able to walk. She described D.B.'s progress since coming into their care as "beautiful[,]" and explained that D.B. has since become verbal, screams less often, his banging his head has lessened, and he has "improved dramatically[]" regarding his issues with food.
D.B.'s foster mother explained that on one occasion, when D.B. was at the hospital having his tonsils and adenoids removed, L.B. confronted her. According to D.B.'s foster mother, L.B. became frustrated when D.B. did not want L.B. to hold D.B. When L.B. heard the foster mother talking to the court-appointed special advocate (the CASA) regarding D.B.'s difficulty with sharing with others at day care, L.B. became angry, blamed the foster mother for D.B.'s behavior, and said that D.B. would never have to share when he returns home to L.B. D.B.'s foster mother testified that as L.B. approached her, L.B. tossed D.B. onto the hospital bed and D.B. almost fell off, and then L.B. blamed the foster mother for not catching D.B., even though L.B. was next to the bed and the foster mother was across the room. After several requests by the CASA for L.B. to leave, L.B. left the room and the foster mother decided that it would not be safe to have any further interaction with L.B. According to D.B.'s foster mother, after visits with his parents D.B. would have "setbacks" that would last about two or three days, and the child would be "angry, frustrated, [and] his food issue would come back." The foster mother explained that now that D.B.'s visits with L.B. occur less often, the visits have less of an effect on D.B. According to the foster mother, D.B. is ready and able to adapt to a permanent home with a family that is willing to adopt him.
Department representatives and the CASA testified that termination of L.B.'s parental rights to D.B. and J.B. would be in the children's best interest because: they had concerns regarding L.B.'s mental health and his aggressive behavior, L.B. endangered the children by leaving them in the car, L.B. had not taken responsibility for his actions, L.B. could not provide for his own needs, and L.B.'s hygiene and well-being had deteriorated during the pendency of the case. The CASA testified that terminating L.B.'s and L.C.'s parental rights and putting J.B. and D.B. in an "adoptive situation[]" was in the children's best interest because, as to L.B., L.B. was unable to parent and protect his children, he had already endangered the children, he refused to get mental help, and he was out of control. The CASA testified that the Department had identified a potential adoptive home for J.B. and D.B. and visits by J.B. and D.B. had gone well at the potential adoptive home. A Department representative explained that the potential adoptive home was willing to adopt both of the children together and they are "anticipated to be placed very soon."
L.B. testified that on June 2, 2015, he left J.B. and D.B. in his vehicle in the parking lot at the store while he went into the store with a friend and his friend's wife watched J.B. and D.B. in the vehicle. According to L.B., he left the engine on, the windows up, and the air conditioning on. He testified that he was gone from the vehicle fifteen to twenty minutes. L.B. explained that at the time of trial he was living temporarily with his mother.
The jury terminated L.B.'s rights based on at least one of the following grounds by finding that L.B. (1) had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being; (2) had engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical or emotional well-being; (3) had failed to comply with the provisions of a court order that specifically established the actions necessary for L.B. to obtain the return of the children who had been in the permanent or temporary managing conservatorship of the Department; or (4) had a mental or emotional illness or a mental deficiency that rendered L.B. unable to provide for the physical, emotional, and mental needs of the children. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (O), 161.003(a). The jury also found that terminating L.B.'s parental rights was in the children's best interest. See id. § 161.001(b)(2). Based on the findings of the jury, the trial court rendered judgment and terminated L.B.'s parent-child relationship with J.B. and D.B.
ANALYSIS
L.B. argues the evidence is legally and factually insufficient to support terminating his parental rights. The decision to terminate parental rights must be supported by clear and convincing evidence, i.e., "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 (West 2014); In the Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the parent committed one or more predicate acts or omissions and that termination is in the child's best interest. See Tex. Fam. Code Ann. § 161.001; see also J.L., 163 S.W.3d at 84. We will affirm a judgment if any one of the grounds is supported by legally and factually sufficient evidence and the best interest finding is also supported by legally and factually sufficient evidence. In the Interest of C.A.C., No. 09-10-00477-CV, 2011 Tex. App. LEXIS 3385, at **13-14 (Tex. App.—Beaumont May 5, 2011, no pet.) (mem. op.).
Under a legal sufficiency review, we review all the evidence in the light most favorable to the finding to determine whether "a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could and we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. If no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, the evidence is legally insufficient. Id. Under factual sufficiency review, we must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department's allegations. Id. We give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. We consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, the evidence is factually insufficient. Id.
The Department argues that L.B. failed to preserve his legal and factual sufficiency complaints. To preserve a legal sufficiency challenge for appeal, the appealing party must have asserted the point by (1) a motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4) a motion to disregard the jury's answer to a vital fact issue, or (5) a motion for new trial. See Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); In the Interest of T.L.P., No. 09-13-00220-CV, 2013 Tex. App. LEXIS 13513, at **2-3 (Tex. App.—Beaumont Oct. 31, 2013, no pet.) (mem. op.). Because L.B. never brought his legal sufficiency challenge to the trial court's attention, L.B.'s legal sufficiency issue has not been preserved for appeal. See In re T.L.P., 2013 Tex. App. LEXIS 13513, at *3 (citing In the Interest of J.P.B., 180 S.W.3d 570, 574 (Tex. 2005)). By failing to file a motion for new trial, L.B. also failed to preserve his factual sufficiency complaint for appellate review. See Tex. R. Civ. P. 324(b)(2); In the Interest of M.S., 115 S.W.3d 534, 547 (Tex. 2003); In re T.L.P., 2013 Tex. App. LEXIS 13513, at *3 (citing In the Interest of A.M., 385 S.W.3d 74, 78-79 (Tex. App.—Waco 2012, pet. denied)). Even if L.B. had preserved a sufficiency point on appeal, we conclude that the evidence supports a predicate ground for termination under section 161.001(b)(1)(D) and (E). Section 161.001(b)(1)(D) allows for termination if the trial court finds by clear and convincing evidence that the parent has "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child[.]" Tex. Fam. Code Ann. § 161.001(b)(1)(D). The "endangerment analysis focuses on the evidence of the child's physical environment, although the environment produced by the conduct of the parents bears on the determination of whether the child's surroundings threaten his well-being." Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Section 161.001(b)(1)(E) authorizes termination if the parent has 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. Tex. Fam. Code Ann. § 161.001(b)(1)(E). The relevant inquiry under this subsection is whether evidence exists that the endangerment of the children's physical well-being was the direct result of the parent's conduct, including acts, omissions, or failures to act. See Jordan, 325 S.W.3d at 723; In the Interest of J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). In this context, "endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. Jordan, 325 S.W.3d at 723; In the Interest of M.C., 917 S.W.2d 268, 269 (Tex. 1996). "Endanger" 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. In the Interest of E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); Jordan, 325 S.W.3d at 723. The endangerment must be the result of a voluntary, deliberate, and conscious course of conduct by the parent rather than a single act or omission. See Jordan, 325 S.W.3d at 723; J.T.G., 121 S.W.3d at 125. The conduct need not occur in the child's presence, and it may occur "both before and after the child has been removed by the Department." Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
Generally, conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. Jordan, 325 S.W.3d at 723; In the Interest of R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). As part of the endangering conduct analysis, a court may consider a parent's failure to complete a service plan. See In the Interest of R.F., 115 S.W.3d 804, 811 (Tex. App.—Dallas 2003, no pet.). A factfinder may infer from past conduct endangering the well-being of the child that similar conduct will recur if the child is returned to the parent. See In the Interest of M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.). Evidence of a parent's improved conduct, especially of short duration, does not conclusively negate the probative value of a history of irresponsible choices. In the Interest of J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). Because the evidence pertaining to subsections 161.001(b)(1)(D) and (E) is interrelated, we conduct a consolidated review. In the Interest of T.N.S., 230 S.W.3d 434, 439 (Tex. App.—San Antonio 2007, no pet.); J.T.G., 121 S.W.3d at 126; see also In the Matter of B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied).
The jury heard testimony regarding the circumstances in which L.B. left J.B. and D.B. unattended in a running vehicle with multiple dangerous items within reach, and that L.B. did not appreciate the potential risk to the children in doing so. The jury also heard testimony regarding L.B.'s mental issues, the deterioration of his behavior and hygiene during the pendency of the case, and that he had failed to disclose his mother's abuse when he knew that the Department intended on returning the children to him while living at his mother's house. Additionally, the jury heard testimony from Dr. Love that L.B. did not complete his counseling and did not seek mental health treatment as advised by Dr. Love. The jury heard testimony from the CASA and multiple representatives for the Department that, based on L.B.'s past conduct, they had concerns regarding L.B.'s ability to protect and make good decisions for his children. Based upon the evidence, the jury could have reasonably concluded that L.B. knowingly placed or knowingly allowed the children to remain in conditions which endangered the children's physical or emotional well-being, or that L.B. had engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being.
The evidence is also legally and factually sufficient to support the jury's determination that terminating L.B.'s parental rights is in J.B.'s and D.B.'s best interest. Regarding the child's best interest, we consider a non-exhaustive list of factors: (1) desires of the child; (2) emotional and physical needs of the child now and in the future; (3) emotional and physical danger to the child now and in the future; (4) parental abilities of the individuals seeking custody; (5) programs available to assist these individuals to promote the best interest of the child; (6) plans for the child by these individuals or by the agency seeking custody; (7) stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also Tex. Fam. Code Ann. § 263.307(b) (West Supp. 2016).
"[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." Tex. Fam. Code Ann. § 263.307(a). Based on the evidence presented at trial and after considering the Holley factors, we conclude that the jury could reasonably have formed a firm belief or conviction that termination of L.B.'s parental rights would be in the children's best interest. See Holley, 544 S.W.2d at 371-72. The record as it relates to the emotional and physical needs of the children now and in the future, the emotional and physical danger to the children now and in the future, the parental abilities of L.B. and the children's placement, the plans for the children by the Department to be adopted together by the potential adoptive family that has had visits with the children, the stability of the children's placement, acts and omissions indicating that the parent-child relationship was not a proper one, L.B.'s lack of accountability for leaving the children unattended in a running vehicle with dangerous items within reach of the children, L.B.'s failure to disclose the abuse by his mother when he was aware of the Department's intent to return the children to him while living at his mother's house, and L.B.'s mental health issues and continued deterioration, provided the jury with legally and factually sufficient evidence to support a finding that termination of L.B.'s parental rights is in the children's best interests. See id.; see also Tex. Fam. Code Ann. § 263.307(a).
We conclude that the Department established, by clear and convincing evidence, that L.B. committed the predicate acts enumerated in section 161.001(b)(1)(D) and (E) and that termination of L.B.'s parental rights is in J.B.'s and D.B.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (b)(2). Because legally and factually sufficient evidence supports at least one ground for termination and the best interest finding, we overrule all of appellant's issues. See C.A.C., 2011 Tex. App. LEXIS 3385, at **13-14; see also Tex. R. App. P. 47.1. Accordingly, we affirm the trial court's judgment. AFFIRMED.
/s/_________
LEANNE JOHNSON
Justice Submitted on March 14, 2017
Opinion Delivered May 18, 2017 Before McKeithen, C.J., Kreger and Johnson, JJ.