In re S.H.

Full title: IN THE INTEREST OF S.H., A CHILD

Court: Court of Appeals of Texas, First District

Date published: Nov 29, 2022

No. 01-22-00255-CV (Tex. App. Nov. 29, 2022)

Opinion

01-22-00255-CV

11-29-2022

IN THE INTEREST OF S.H., A CHILD

Julie Countiss Justice

On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2020-02030J

Panel consists of Justices Goodman, Countiss, and Farris.

MEMORANDUM OPINION

Julie Countiss Justice

In this accelerated appeal,¹ appellant, father, challenges the trial court's order, entered after a bench trial, terminating his parental rights to his minor child, S.H.²In two issues, father contends that the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights was in the best interest of S.H.³

1 See Tex. Fam. Code Ann. § 263.405(a); Tex.R.App.P. 28.4.

2 The trial court also terminated the parental rights of S.H.'s mother ("mother"). She is not a party to this appeal.

3 See Tex. Fam. Code Ann. § 161.001(b)(2).

We affirm.

Background

The Department of Family and Protective Services ("DFPS") filed a petition seeking termination of father's parental rights to S.H. and managing conservatorship of S.H.⁴

4 S.H. was three years old when the trial court signed its order terminating the parental rights of father.

DFPS Caseworker Pinnekins

DFPS caseworker Pinnekins testified that, at the time of trial, S.H. was three years old, and he was living with the family of mother's great-aunt (the "maternal aunt"). S.H. had been living with the maternal aunt, her husband (the "maternal uncle"), and their six children since September 2020-for about a year and a half at the time of trial. S.H.'s placement with the maternal aunt's family was meeting S.H.'s needs. S.H. shared a room at the maternal aunt's home and had his own bed.

Pinnekins explained that S.H. was home schooled by the maternal aunt. Pinnekins had visited S.H. consistently throughout the pendency of the case, and she had seen that S.H. was closely bonded with the maternal aunt, the maternal uncle, and their children. S.H. had "adjusted greatly." He was happy in his placement, and he was a happy and friendly child. At visits, S.H. was "always ready to show [Pinnekins] something new that he [had] got[ten]," such as his "Spider-Man costume or new dinosaurs . . . [or] new LEGOS."

Pinnekins testified that she had no concerns about the ability of the maternal aunt and the maternal uncle to provide stability to S.H. or about their ability to provide for S.H.'s physical and emotional needs. The maternal aunt and the maternal uncle wanted to adopt S.H. and were willing to "love him and raise him and provide for all of his future needs." According to Pinnekins, the maternal aunt and the maternal uncle had moved to a larger home-a four-bedroom house-during the pendency of the case, and the new home was able to accommodate S.H. and the maternal aunt and the maternal uncle's children.

Pinnekins stated that S.H. entered the care of DFPS because of neglectful supervision by mother. Pinnekins noted that mother was a minor at the time S.H. was conceived.⁵ And after S.H. was born, mother and S.H. lived with her mother- S.H.'s grandmother-but they were "kicked out" of the house. At that point, mother began "bouncing from home to home" and to different hotels with S.H. There were also allegations that mother was engaging in narcotics use at the time. Mother was referred to Family Based Safety Services ("FBSS") and asked to participate in certain services.⁶ But mother did not do so and was unable to provide a safe and stable environment for S.H. DFPS then requested temporary managing conservatorship of S.H., and S.H. was placed with the maternal aunt and the maternal uncle. Father was not involved or the cause of S.H. entering DFPS's care, and when asked whether father was "the reason that [S.H.] came into [DFPS's] care," Pinnekins stated that he was not. Father did not find out until January 2021 that S.H. was in DFPS's care and that he had been for months.

5 Pinnekins stated that father was not a minor at the time S.H. was conceived. Father, during his testimony, disputed that mother was a minor when S.H. was conceived.

6 FBSS are protective services that DFPS provides to a family when a child in the family is at risk of abuse or neglect but is not in DFPS's conservatorship. In re J.M., 02-21-00346-CV, 2022 WL 872542, at *1 n.3 (Tex. App.-Fort Worth Mar. 24, 2022, no pet.) (mem. op.). DFPS provides these services to a family to protect the child from abuse and neglect, to help the family reduce the risk of future abuse or neglect, and to prevent the child's removal from the parent's custody. Id. As with cases in which DFPS has conservatorship of a child, DFPS develops a written service plan for the family. Id.; see also In re A.G., No. 13-21-00099-CV, 2021 WL 3869732, at *1 n.2 (Tex. App.-Corpus Christi-Edinburg Aug. 31, 2021, no pet.) (mem. op.) ("[FBSS] are designed to maintain children safely in their homes-or make it possible for children to return home-by strengthening the ability of families to protect their children and reducing threats to safety.").

As to father, Pinnekins stated that he did not have a history with DFPS. Father was given a Family Service Plan ("FSP"), which the trial court ordered father to complete. Under his FSP, father was required to participate in "DNA testing to establish [the] paternity" of S.H., complete a psychosocial evaluation, parenting classes, and a substance abuse assessment, participate in random narcotics-use tests, maintain stable housing and employment, and maintain contact with DFPS. Father did not begin working on the requirements of his FSP until May 2021.

Father had completed his psychosocial evaluation, substance abuse assessment, and substance abuse counseling. Father was successfully discharged from substance abuse counseling. Father also participated in DNA testing to establish that he was S.H.'s father and had attended court hearings. But father had not completed the required parenting classes, did not provide proof of stable housing and employment, did not maintain consistent contact with DFPS, and did not participate in all required narcotics-use tests. Although Pinnekins had been told that father was working out-of-state at certain times during the pendency of the case, she did not know the exact timing of when father was out-of-state and when he was at home. Pinnekins knew that father was working out-of-state "off and on" before September 2021. Pinnekins noted that if father was "called for a random [narcotics-use] test" when he was out-of-state, DFPS was not able to make arrangements for father to be tested out-of-state. When asked "if [father] had a random [narcotics-use] test when he was out of town for work, [was that test] counted against him," Pinnekins responded, "Yes."

The last time that Pinnekins had spoken to father was on October 25, 2021- about three months before trial. The telephone number that Pinnekins had for father was no longer working, and father had not provided Pinnekins with any updated contact information. Pinnekins did have father's email address and although she had not "reached out to him recently via e-mail," Pinnekins' assistant had done so. Pinnekins did not contact father's attorney to let her know that Pinnekins did not have a working telephone number for father. According to Pinnekins, father's communication with her was not consistent during the pendency of the case. And father had not given Pinnekins a reason why he had not completed the requirements of his FSP.

Pinnekins further testified that father participated in some visits with S.H., but he had not attended every scheduled visit with S.H. during the pendency of the case. The last time that father had an in-person visit with S.H. was in either June or July of 2021-about six months before trial. Father had attended four out of ten scheduled in-person visits with S.H., and he was late for three of those visits. Pinnekins explained that she had worked with father to come up with a schedule for his visitation that accommodated his work schedule, but there were times when the maternal aunt would bring S.H. for a visit and father would not show up. Pinnekins felt it was detrimental for S.H. to come to a visit and father not to show up.

From at least July 2021 to September 2021, father did not have any visits with S.H. At the end of September 2021, father told Pinnekins that virtual visits with S.H. would be easier for him to attend, so she set up virtual visits for father and S.H. Pinnekins asked father for his schedule and if he wanted to have consistent virtual visits with S.H., and father told her "yes." Father agreed to having a virtual visit with S.H. every Monday for thirty minutes. After father agreed to the virtual-visit schedule, father attended only one virtual visit with S.H. on October 25, 2021. Father did not notify Pinnekins when he would not be able to attend a virtual visit. Instead, Pinnekins and the maternal aunt continued to log on to the virtual visits to see if father would "show up," but he had not "made himself present for" S.H. When father did not show up for a visit, S.H. would be visibly upset and "would be down for the rest of the day." Eventually, Pinnekins notified father's attorney that father would need to reach out to Pinnekins at least twenty-four hours in advance of a virtual visit before a virtual visit would go forward.

According to Pinnekins, DFPS had tried to accommodate father continuing a relationship with S.H. But father had not shown or demonstrated that he was able to be a consistent presence for S.H., which was concerning because if father was not "available for visits," "how c[ould] he be available for a child so young and [be able to] provide for all of his needs when he c[ould not] commit to . . . visitation." It was not in S.H.'s best interest for father "to come and go as [he] please[d] and be an inconsistent adult figure and parent for" S.H.

Pinnekins noted that when father and S.H. did have visits, the visits were appropriate. But father did "not bring anything for" S.H. Father "would just show up and they would play with the toys provided by the [maternal] aunt or they would watch videos on [father's cellular] [tele]phone."

As to father's housing, Pinnekins testified that she had received a hand-written letter "from someone stating the address" where father was living, but she was not "able to verify the information provided" in the letter. According to Pinnekins, father needed to provide "a lease [agreement] of some sort and some identifying information" with the letter that would show that the person who had written the letter for father had a lease agreement and that father was "allowed to reside in the home" with that person. Pinnekins needed to be able to verify that the person who sent the letter was the same person who had signed the lease agreement for the apartment where father was living as a roommate. Pinnekins stated that she did not tell father's attorney that "the lease agreement was needed" because she forgot. But father never provided proof that he had stable housing for at least six months.

As to father's employment, Pinnekins stated that she had seen copies of father's bank account statements showing deposits from "Cotton USA" and a dollar amount. Pinnekins had not reached out to father to verify his employment. She did not know for how long father had been employed. Pinnekins denied telling father's attorney that "screenshot[s] of [father's] direct deposits would be sufficient" to establish stable employment. Pinnekins never received proof from father that he had stable employment for at least six months, and she had never seen proof that father actually worked out-of-state.

According to Pinnekins, father had not provided anything demonstrating that he could provide a stable home for S.H. Although father's primary residence was in Texas, father often worked out-of-state. Pinnekins did not know whether father had provided any financial support for S.H. while he had been in DFPS's care.

According to Pinnekins, DFPS's goal for S.H. was to be adopted by the maternal aunt and the maternal uncle or for the maternal aunt and the maternal uncle to become S.H.'s conservators. Pinnekins was concerned about returning S.H. to father's care because he had not been consistently present for the child during the pendency of the case. Father had "only attended a few visits for the whole duration of th[e] case," he did not complete all of the requirements of his FSP, and he had not participated in any required narcotics-use testing since January 2021. Father's failure to participate in narcotics-use testing was concerning because DFPS had not been able to establish father's sobriety, which was particularly relevant because father had a pending criminal case arising from his "possession of a controlled substance." Pinnekins also noted that father had another pending criminal case for

"assault against a family member" and there was a protective order in place so that father would not interfere with the person he allegedly assaulted.⁷

7 Pinnekins noted that father did not notify DFPS after he was arrested for the "assault against a family member" offense which was required by his FSP.

Pinnekins testified that it was in S.H.'s best interest for father's parental rights to be terminated and for S.H. to be adopted by the maternal aunt and the maternal uncle because S.H. had been living with that family since September 2020. He was closely bonded with the maternal aunt and the maternal uncle's family. The family was able to meet S.H.'s physical, emotional, and mental needs. The maternal aunt was "keeping up with all of [S.H.'s] appointments." And while in his placement, S.H. had learned the alphabet, numbers, shapes, and colors, which Pinnekins stated was "thanks to the maternal aunt who [was] working with him diligently to expand on his education." S.H. was comfortable in his placement, was happy in his placement, loved the maternal aunt and the maternal uncle's family, and wanted to stay in his current placement.

Father

Father testified that he is S.H.'s father. Father was twenty-two years old when he began a sexual relationship with mother, which he characterized as consensual. Father was not at the hospital when S.H. was born because mother did not want him at the hospital as they "were fighting at the time." Before S.H. entered DFPS's care, father stated that he saw S.H. on a regular basis. S.H. did not live with him, but he would "spend nights with [him]." When S.H. was with him, father provided S.H. with food, clothing, and toys.

As to S.H. entering DFPS's care, father stated that he knew mother had gotten into a fight with S.H.'s grandmother and left the grandmother's home, but he did not know that mother had taken S.H. with her. Mother did not tell father that S.H. was in DFPS's care. When father spoke to mother, mother told him that S.H. was at the maternal aunt's house and that she was "going to go get him." A week later, mother told father that the maternal aunt had S.H. and "wasn't giving him back." Father did not hear anything from mother after that. Thus, although S.H. entered DFPS's care in September 2020, father stated that he did not know that S.H. was in DFPS's care until January 2021. Father testified that he had never seen mother using narcotics, but he knew she "had a drug problem" because "something[] [was] not right" with her. Father denied providing narcotics to mother.

Father stated that he had three pending criminal cases. In one of the pending criminal cases, he was charged with the offense of possession of a controlled substance, namely Xanax.⁸ In another pending criminal case, he was charged with the offense of assault of a family member.⁹ The complainant in the assault-of-a-family-member case ("complainant 2") was the mother of father's one-month-old child. Father stated that complainant 2 was not pregnant with his child at the time the alleged assault occurred. According to father, he was "beating the cases" and he had not been told that he was "going to jail." He did not know if there was a potential for him to receive "jail time" as a result of being found guilty in any of his pending criminal cases. If S.H. was returned to father's care and father was then incarcerated, father stated that S.H. would stay with S.H.'s grandmother- mother's mother.¹⁰

8 See Tex. Heath & Safety Code Ann. §§ 481.104(a), 481.117(a), (b); see also Tex. Penal Code Ann. § 12.21 ("An individual adjudicated guilty of a [c]lass A misdemeanor [offense] shall be punished by: (1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement.").

9 See Tex. Penal Code Ann. § 22.01(a)(1), (b); see also id. § 12.21 ("An individual adjudicated guilty of a [c]lass A misdemeanor [offense] shall be punished by: (1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement.").

10 Father noted that he had requested, during the pendency of the case, for S.H. to be placed with S.H.'s grandmother because father knew S.H. was "safe there," S.H. loved his grandmother, and father could "actually get to see [S.H.]."

As to his housing, father stated that he had been living at the same residence since April 2021. He lived there with his friend and his friend's fiancé. Father had not obtained his own stable housing because he was "on and off the road so [he] didn't feel comfortable paying that much for somewhere [he] wasn't going to be the majority of the time." Father admitted that he did not have a stable residence of his own to provide to S.H. According to father, when the DFPS caseworker asked him either for a lease agreement or "a note from the person [he] was staying with" that stated "how long [he had] been there" and "how much [he] paid" for rent, father gave the DFPS caseworker a handwritten letter sent from his friend, and he was not told that any more proof or information was needed.

As to his employment, father stated that he worked two jobs-one for Cotton Global Disaster Solutions ("Cotton") and one for Acme Oyster House ("Acme Oyster"). He began working at Cotton in February 2021-about eleven months before trial. And he began working at Acme Oyster at the end of November 2021- about two months before trial. Father was paid hourly at his jobs and received a paycheck once a week. Father stated that he had provided the DFPS caseworker with "in-person check stubs." Further, father noted that he received "direct deposit for both jobs," and he had provided "screenshots" of the direct deposits he had received. Before father worked for Cotton, he worked for a moving company.

Father also explained that he had been working "in and out" of state with Cotton since February 2021. According to father, "[a]ny time there[] [was] a natural disaster or anything, [he was] sent out of town for it." In either April, May, or June 2021, he notified the DFPS caseworker that he was sometimes out-of-state for work.

When asked why he had not provided financial support for S.H. even though he was employed, father stated that he had "text messaged or asked [the maternal aunt and the maternal uncle] if they need[ed] money, anything, [and] they told [him] no." But according to father, he had given S.H. toys and candy at his in-person visits with S.H. and he had given S.H. money at an in-person visit. At S.H.'s grandmother's house, father had clothes and toys that were unopened that he had bought for S.H. Father agreed that it was his responsibility to care for S.H. And father agreed that S.H., as a three-year-old, had daily needs. Father also acknowledged that it would have been reasonable for him to have given items or money to the DFPS caseworker who could have given them to the maternal aunt. When father saw S.H. at visits, he appeared happy and was dressed in nice clothing.

As to his FSP, father stated that he had received his FSP, and he went over it with the DFPS caseworker. He completed his psychosocial evaluation and his substance abuse assessment, and he participated in three narcotics-use tests. Father did not complete his parenting classes because "no one answered" when he called the telephone number that he had been given. Later, he "reached out" again and was told that "they [had] tried to reach out to [him]." When father "got [his] [cellular] [tele]phone working," he called again, but he "didn't hear anything."

Father did not participate in all narcotics-use testing because he was out-of-state. When he was home, he was supposed to let DFPS know so that he could be tested, but the narcotics-use testing could only be scheduled from 8 a.m. to 5 p.m. and he worked during those hours. Father was told about a testing place that was open on Saturdays, but that place was about two hours away so father did not go. Father stated that he did not intentionally miss narcotics-use tests, but he did not want to be fired from his job.

As to his visits with S.H., father testified that he had one virtual visit with S.H. and then he went out-of-state for work. He did not have a cellular telephone with him "for almost two months." Father stated that there was a set schedule for virtual visits, but he "didn't have a [cellular] [tele]phone." He did not miss visits with S.H. because he did not want to see S.H. When father had visits with S.H., S.H. appeared happy to see him. And at one visit S.H. kept saying, "that's my daddy."

Father did not believe that it was in S.H.'s best interest for father's parental rights to be terminated because S.H. knew that father was his father and it would not be "good on any kid" to know that "his dad [was] out there" but he "wouldn't be able to see his dad."

Maternal Aunt

The maternal aunt testified that mother was fifteen years old when S.H. was conceived. After S.H. was born, mother and S.H. lived with the maternal aunt and the maternal uncle for about two-and-a-half months, beginning in June 2018. While mother and S.H. lived with the maternal aunt and the maternal uncle, father visited every couple of weeks, but toward the end of July and August 2018, before mother moved out, father visited every couple of days. Father was not paying child support at that time but would give mother money occasionally.

In August 2020, the maternal aunt reached out to mother because she became aware that mother was "staying at different places" with S.H. Mother told the maternal aunt that her mother-S.H.'s grandmother-had kicked mother and S.H. out of her home, and mother and S.H. were staying with different friends and at different hotels. The maternal aunt asked mother if she could visit S.H., and it was arranged that the maternal aunt would pick S.H. up from mother. DFPS then got in touch with the maternal aunt, and S.H. remained in the maternal aunt's care.

S.H. began living with the maternal aunt and the maternal uncle on September 11, 2020, and he had lived with them since. When S.H. first arrived, he was quiet and whispered; he did not talk very much. But S.H. had developed into a talkative three-year-old. S.H. liked to color, wrestle with "his brothers," i.e., the maternal aunt and the maternal uncle's sons, play puzzles and dinosaurs, and read books. S.H. ate and slept well in the maternal aunt and the maternal uncle's home. S.H. did not have any special needs, but if any arose, the maternal aunt would see that S.H. received any services or therapies that he needed.

The maternal aunt explained that she and the maternal uncle had six children,¹¹and the maternal aunt was a "stay-at-home parent." The maternal aunt also worked part-time at a church on Wednesdays. She planned to stay home and continue to care for S.H. The maternal aunt described S.H. as an important member of her family. The maternal aunt hoped that S.H. could "become whatever he want[ed]." The maternal aunt and the maternal uncle were willing and able to provide S.H. with a safe environment.

11 The maternal aunt had a seventeen-year-old girl, a fifteen-year-old boy, a nine-year-old boy, an eight-year-old boy, and seven-year-old twin boys. The maternal aunt's oldest son was autistic and "highly functioning." And one of her seven-year-old twin boys was autistic as well. The maternal aunt and the maternal uncle had been able to provide all of the care that their children required, including occupational therapy, physical therapy, and speech therapy.

The maternal aunt noted that even if she was able to adopt S.H., she would be willing to allow father to have a relationship with S.H., assuming that he was "clean as far as [narcotics] use and [he was] stable." She was willing to provide updates to father, but the maternal aunt did not have any current contact information for father.

According to the maternal aunt, it was in S.H.'s best interest to remain in his placement with her family because he had been with her family for more than a year and he was an important part of the family. The maternal aunt's six children adored S.H. S.H. called the maternal aunt and the maternal uncle "Mom" and "Dad." The maternal aunt's family loved S.H. and could not imagine S.H. not being in their lives. Even if parental rights were not terminated by the trial court, the maternal aunt and the maternal uncle were willing to care and provide for S.H. And the maternal aunt and the maternal uncle were willing to abide by any visitation schedule that was ordered by the trial court.

The maternal aunt noted that she had last had contact with father in October 2021 at the virtual visit for S.H. and father. The maternal aunt described the visit as "fine," and noted that father wanted to know what size clothes S.H. was wearing- information that the maternal aunt provided to father. As to what father had provided to S.H. during the pendency of the case, the maternal aunt stated that since January 2021, father had given S.H. a toy car and eight dollars. In December 2020, father gave S.H. some Christmas presents. The maternal aunt and the maternal uncle had provided for all of S.H.'s needs.

Maternal Uncle

The maternal uncle testified that he was a program coordinator at Houston Community College and he had been working there since 2018. The maternal uncle had always had full-time employment. The maternal uncle also did adjunct teaching for extra income and some "freelance work." The maternal uncle and the maternal aunt had been living in their current home for about seven months.

According to the maternal uncle, mother and S.H. had previously lived with his family from June 2018 until August 2018 because they both needed a place to live "since they had been ejected from [mother's] former residence." Mother had been living with her mother-S.H.'s grandmother-but was kicked out of that house. The maternal uncle and the maternal aunt brought mother and S.H. to their home because they "weren't going to let them go to the street." In August 2018, mother chose to move in with mother's grandmother. At some point, mother chose to live with her mother-S.H.'s grandmother-until mother and S.H. were kicked out of the house again. Mother and S.H. were then without a home and "on the street," until S.H. came to live with the maternal uncle and the maternal aunt.

Father's FSP

The trial court admitted into evidence a copy of father's FSP. The FSP stated that the "[p]rimary [p]ermanency [g]oal" was "[f]amily [r]eunification" with a "[c]oncurrent [p]ermanency [g]oal" of "[r]elative/[f]ictive [k]in[] [a]doption." As to father's "hopes and dreams" for S.H., the FSP stated that father hoped that S.H. would have a safe and stable environment that met his needs and that S.H. was happy and healthy.

Father's FSP required him to show legal and verifiable employment, to have stable employment or income to meet his family's basic needs, and to provide the DFPS caseworker with "paystubs or income verification every month." Father was also required to maintain stable housing and demonstrate an ability to keep a stable environment for his family. Father's housing needed to be safe, clean, and free of hazards to ensure S.H.'s safety and well-being. Father was required to "submit a housing agreement or utility bill to the [DFPS] caseworker to show proof of residence." And father was to be available for the DFPS caseworker to conduct random and scheduled home visits. Father was required to provide DFPS with the name and necessary background information for all members of his household.

The FSP further required father to attend in-person parenting classes, pay for parenting classes, follow all recommendations from the parenting classes, and provide proof of completion of the parenting classes to the DFPS caseworker. Father was required to participate in DNA testing to establish his paternity as well as attend all court hearings, permanency conference meetings, and family visits. Father was to maintain contact with the DFPS caseworker in person and by telephone at least once a month. If father's contact information or housing changed, father was to contact the DFPS caseworker within forty-eight hours.

Father was also required to refrain from engaging in "any illegal criminal activities or associating with individuals who engage[d] in criminal activities." Father was to notify the DFPS caseworker within twenty-four hours of any pending criminal charges or arrests during the pendency of the case. The FSP also required father to participate in random narcotics-use testing. After being contacted and told that a narcotics-use test needed to be taken, father had twenty-four hours to complete his narcotics-use test. Father was also required to complete a substance abuse assessment and follow all recommendations, and father was to participate in a "substance abuse program." The FSP further required father to complete a psychosocial evaluation and to follow all recommendations from the evaluation.¹²

12 The trial court, at a March 25, 2021 status hearing, found that father had "reviewed" and "underst[ood]" his FSP and had been advised that unless he was willing and able to provide S.H. with a safe environment, even with the assistance of the FSP, within a reasonable period of time specified in the FSP, his parental and custodial duties and rights were subject to restriction or termination or S.H. may not be returned to his care. At trial, the trial court admitted into evidence a copy of its status-hearing order.

Pending Criminal Cases

The trial court admitted into evidence copies of three informations, charging father with three misdemeanor offenses. The first information, charging father with the misdemeanor offense of possession of a controlled substance, stated that father:

on or about July 29, 2020, did then and there unlawfully, intentionally[,] and knowingly possess a controlled substance, namely, Alprazolam, weighing less than 28 grams by aggregate weight, including any adulterants and dilutants.¹³

13 See Tex. Heath & Safety Code Ann. §§ 481.104(a), 481.117(a), (b); see also Tex. Penal Code Ann. § 12.21 ("An individual adjudicated guilty of a [c]lass A misdemeanor [offense] shall be punished by: (1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement.").

The second information, charging father with the misdemeanor offense of failing to stop and give information in an accident involving damage to a vehicle, stated that father:

on or about July 29, 2020, did then and there unlawfully, while driving and operating a vehicle, was involved in an accident resulting only in damage to another vehicle, which was driven by . . . [complainant 1], and [father] intentionally and knowingly failed to stop his vehicle at the

scene of the accident and as close to the scene of the accident as possible, failed to return to the scene of said accident, and failed to remain at the scene of said accident until [father] had given his name and address to . . . [c]omplainant [1], and the damages to the vehicles involved in said accident resulted in a pecuniary loss of value of at least two hundred dollars.¹⁴

14 See Tex. Transp. Code Ann. §§ 550.022(a), (c)(2), 550.023; see also Tex. Penal Code Ann. § 12.22 ("An individual adjudicated guilty of a [c]lass B misdemeanor [offense] shall be punished by: (1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement.").

The third information, charging father with the misdemeanor offense of assault of a family member, stated that father:

on or about March 12, 2021, did then and there unlawfully, intentionally[,] and knowingly cause bodily injury to . . . [complainant 2], a person with whom [father] had a dating relationship, by striking . . . [c]omplainant [2] with his hand, kicking [c]omplainant [2] with his foot, and by pulling and dragging . . . [c]omplainant [2] by the hair with his hand.¹⁵

15 See Tex. Penal Code Ann. § 22.01(a)(1), (b); see also id. § 12.21 ("An individual adjudicated guilty of a [c]lass A misdemeanor [offense] shall be punished by: (1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement.").

The trial court also admitted into evidence a copy of an Order for Emergency Protection, stating that on April 14, 2021, there was a request for an "Order for Emergency Protection against [father]." The county criminal court at law found that on March 12, 2021, father was alleged to have committed the offense of assault of a family member. The county criminal court at law designated complainant 2 as a "protected individual" and found that father and complainant 2 were members of the same family or household or were involved in a dating relationship and that father "had a dating violence relationship" with complainant 2. The county criminal court at law also found that father had been arrested "for an offense involving family violence." The county criminal court at law ordered that father was prohibited from "committing family violence or an assault on" complainant 2, "committing an act in furtherance of" the offense of stalking involving complainant 2, "communicating directly with a member of the family or household or with . . . [complainant 2] in a threatening or harassing manner," "communicating a threat through any person to a member of the family or household of" complainant 2, possessing a firearm, "going to or near the residence of a member of the family or household or of" complainant 2, and "going to or near the place of employment or business of" complainant 2. The Order for Emergency Protection was issued on April 14, 2021 and signed by father, affirming that he had received a copy of the order.

Permanency Report

The trial court admitted into evidence a copy of DFPS's permanency report, filed with the trial court on January 7, 2022-thirteen days before trial. The permanency report stated that S.H. was three years old and "not school aged." S.H. was placed with the maternal aunt and the maternal uncle. He was "a very happy toddler that love[d] to engage in different age[-]appropriate activities such as painting, puzzles, and blocks." S.H. "enjoy[ed] school time in the [maternal aunt and the maternal uncle's] home" and was improving on his letter recognition, colors, and numbers. S.H. loved dinosaurs, Spider-Man, and Captain America. S.H. had "made progress with potty training," and he was developmentally on target. While living with the maternal aunt and the maternal uncle, S.H. had medical checkups, vision examinations, and dental examinations. S.H. was up to date on his immunizations and was in "good health." There were no concerns about S.H.'s dental hygiene. S.H. did not take any medication.

As to why S.H. entered DFPS's care, the permanency report stated that on August 27, 2020, DFPS received an allegation of negligent supervision of S.H. by mother. Mother was "homeless and the father [of S.H.] was unknown." Mother was "allegedly a known [narcotics] user and [was] wandering the streets." Mother was not in a position to physically or mentally provide for S.H.

As to father, the permanency report stated that father had been requested, in his FSP, to: "[C]omplete a DNA test to establish paternity, complete a psychosocial evaluation, complete a parenting course, [complete a] substance abuse assessment, participate in random [narcotics-use] screenings, [maintain] stable housing, [maintain] stable employment, and maintain cooperation with [DFPS]." Father had completed his psychosocial evaluation on May 11, 2021, and the evaluation recommended that he complete a substance abuse assessment. Father completed his substance abuse assessment on July 24, 2021, which recommended that he participate in substance abuse therapy. Father had not provided proof of stable housing and had only provided "four pay stubs dated from" February 22, 2021 to April 18, 2021 as proof of stable employment. On September 21, 2021, father requested virtual visits with S.H., which were then scheduled for every Monday. Father only attended one virtual visit with S.H. on October 25, 2021.

DFPS's primary permanency goal for S.H. was adoption by the maternal aunt and the maternal uncle. The maternal aunt and the maternal uncle had expressed their willingness to provide permanency for S.H. if family reunification was not possible. The permanency report stated that adoption was in S.H.'s best interest because he had lived with the maternal aunt and the maternal uncle since September 2020. S.H. had closely bonded with the maternal aunt and the maternal uncle's family. S.H.'s placement with the maternal aunt and the maternal uncle was meeting "all of his needs for safety, medical, dental, emotional, and social." The maternal aunt and the maternal uncle provided educational stability to S.H. S.H. was "being home schooled" by the maternal aunt "with age[-]appropriate learning stimulus."

The permanency report listed family reunification as a concurrent permanency goal, noting that father had participated in some of the requirements of his FSP and had expressed a desire for S.H. to live with him. However, ultimately, the permanency report recommended that father's parental rights to S.H. be terminated. Father had not completed the requirements of his FSP. He had not completed his parenting classes nor his substance abuse counseling. Father had not participated in random narcotics-use testing since January 2021. Father also had not maintained consistent contact with DFPS and S.H. Father only attended four out of ten scheduled in-person visits with S.H., although father had been notified of his in-person visitation schedule. Father attended in-person visits with S.H. on April 22, 2021, May 6, 2021, June 17, 2021, and July 1, 2021.¹⁶ Father was late for three out of the four visits that he attended. Finally, father had not provided proof of stable housing for himself or for S.H. and had not provided "verifiable proof of income regarding employment."

16 The permanency report stated that father's in-person visitation schedule was on the second and fourth Thursdays of every month from 1:00 p.m. to 2:00 p.m.

Home Assessment

The trial court admitted into evidence a home assessment related to the maternal aunt and the maternal uncle's home. The home assessment member listed as members of the household: the maternal aunt and the maternal uncle and their six children as well as S.H. The family had multiple pets, which were up to date on vaccinations.

According to the home assessment, the maternal aunt and the maternal uncle moved into a new home on July 16, 2021-about six months before trial. The home had four bedrooms and two-and-a-half bathrooms. The first floor of the home had a family room, kitchen, half-bathroom, office, and a primary bedroom and bathroom. The first floor was fully furnished. The second floor of the home had a play area, three bedrooms, and a full bathroom. The maternal aunt and the maternal uncle's daughter, the only female child in the home, had her own bedroom. The two oldest male children shared a bedroom, and the four youngest male children, which included S.H., shared a bedroom. The second floor was fully furnished, and each child had their own individual sleeping arrangements. In S.H.'s bedroom, there were two sets of bunk beds, and S.H.'s bed was on the bottom bunk. The play area on the second floor consisted of "an open space outside of the three bedrooms."

The home also had a "large and spacious, fenced backyard for the children to play safely." There was no swimming pool or trampoline at the home. The front yard of the home was open, which required S.H. to be supervised if he was going to play in the front yard.

Overall, the maternal aunt and the maternal uncle's home was neat, clean, and free of clutter. There were no "observable safety concerns." The home was "childproofed with cabinet latches and outlet covers." The "cleaning products [were] stored in the laundry room on the top shelf and not accessible to [the] younger children." S.H. could not reach the cleaning products. Medications were stored in a cabinet in the maternal aunt and the maternal uncle's primary bathroom. There were smoke detectors in all of the bedrooms, the kitchen, and the family room. There was a fire extinguisher on each level of the home. There were not "observable concerns regarding the home's condition." The home assessment noted that "CPS and [c]riminal [h]istory checks" had been conducted for the maternal aunt and the maternal uncle and "no history was identified."

The home assessment listed, as "strengths" related to the maternal aunt and the maternal uncle, that they were "willing and interested in caring for [S.H.] long-term if he[] [was] unable to be reunited with his parent[s]," there had not been "any significant or identified concerns pertaining to [S.H.] since his placement with [the maternal aunt and the maternal uncle]," S.H. appeared to be fully adjusted and acclimated to the home and appeared to be doing well, the maternal aunt and the maternal uncle's new home "provide[d] more space for the family to live comfortably," and each child in the home had their own individual sleeping space.

Standard of Review

A parent's right to "the companionship, care, custody, and management" of his child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (internal quotations omitted). The United States Supreme Court has emphasized that "the interest of [a] parent[] in the care, custody, and control of [his] child[] . . . is perhaps the oldest of the fundamental liberty interests recognized by th[e] Court." Troxel v. Granville, 530 U.S. 57, 65 (2000). Likewise, the Texas Supreme Court has concluded that "[t]his natural parental right" is "essential," "a basic civil right of man," and "far more precious than property rights." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (internal quotations omitted). Consequently, "[w]e strictly construe involuntary termination statutes in favor of the parent." In re E. N.C. , 384 S.W.3d 796, 802 (Tex. 2012).

Because termination of parental rights is "complete, final, irrevocable and divests for all time that natural right . . ., the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights." Holick, 685 S.W.2d at 20. Clear and convincing evidence is "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007; see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the standard of proof is "clear and convincing evidence," the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. In re J.F.C., 96 S.W.3d at 264-68.

In conducting a legal-sufficiency review in a termination-of-parental-rights case, we must determine whether the evidence, viewed in the light most favorable to the finding, is such that the fact finder could reasonably have formed a firm belief or conviction about the truth of the matter on which DFPS bore the burden of proof. Id. at 266. In viewing the evidence in the light most favorable to the finding, we "must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so," and we "should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). But this does not mean we must disregard all evidence that does not support the finding. In re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, we must also be mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. Id. If we determine that no reasonable trier of fact could have formed a firm belief or conviction that the matter that must be proven is true, we must hold the evidence to be legally insufficient and render judgment in favor of the parent. Id.

In conducting a factual-sufficiency review in a termination-of-parental-rights case, we must determine whether, considering the entire record, including evidence both supporting and contradicting the finding, a fact finder reasonably could have formed a firm conviction or belief about the truth of the matter on which DFPS bore the burden of proof. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). We should consider whether the disputed evidence is such that a reasonable fact finder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. "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, then the evidence is factually insufficient." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (internal quotations omitted).

Sufficiency of Evidence

In his first and second issues, father argues that the trial court erred in terminating his parental rights to S.H. because the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights was in the best interest of S.H. See Tex. Fam. Code Ann. § 161.001(b)(2).

In order to terminate the parent-child relationship, DFPS must establish, by clear and convincing evidence, one or more of the acts or omissions enumerated in Texas Family Code section 161.001(b)(1) and that termination of parental rights is in the best interest of the child. See id. § 161.001(b); Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (both elements must be established).

The best-interest analysis evaluates the best interest of the child. See In re M.A.A., No. 01-20-00709-CV, 2021 WL 1134308, at *20 (Tex. App.-Houston [1st Dist.] Mar. 25, 2021, no pet.) (mem. op.); In re D.S., 333 S.W.3d 379, 384 (Tex. App.-Amarillo 2011, no pet.). It is presumed that the prompt and permanent placement of the child in a safe environment is in his best interest. See Tex. Fam. Code Ann. § 263.307(a); In re D.S., 333 S.W.3d at 383.

There is also a strong presumption that the child's best interest is served by maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex. App.-Houston [1st Dist.] 2003, no pet.). Thus, we strictly scrutinize termination proceedings in favor of the parent. See In re M.A.A., 2021 WL 1134308, at *20; In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.-Texarkana 2013, no pet.).

In determining whether termination of father's parental rights was in the best interest of S.H., we may consider several factors, including: (1) the desires of S.H.; (2) the current and future physical and emotional needs of S.H.; (3) the current and future emotional and physical danger to S.H.; (4) the parental abilities of the parties seeking custody; (5) whether programs are available to assist those parties; (6) plans for S.H. by the parties seeking custody; (7) the stability of the proposed placement; (8) the parent's acts or omissions that may indicate that the parent-child relationship is not proper; and (9) any excuse for the parent's acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re L.M., 104 S.W.3d at 647. We may also consider the statutory factors set forth in Texas Family Code section 263.307. See Tex. Fam. Code Ann. § 263.307; In re A.C., 560 S.W.3d 624, 631 n.29 (Tex. 2018); In re C.A.G., No. 01-11-01094-CV, 2012 WL 2922544, at *6 & n.4 (Tex. App.-Houston [1st Dist.] June 12, 2012, no pet.) (mem. op.).

These factors are not exhaustive, and there is no requirement that DFPS prove all factors as a condition precedent to the termination of parental rights. See In re C.H., 89 S.W.3d at 27; see also In re C.L.C., 119 S.W.3d 382, 399 (Tex. App.- Tyler 2003, no pet.) ("[T]he best interest of the child does not require proof of any unique set of factors nor limit proof to any specific factors."). The absence of evidence about some of the factors does not preclude a fact finder from reasonably forming a strong conviction or belief that termination is in the child's best interest. In re C.H., 89 S.W.3d at 27; In re J. G. S., 574 S.W.3d 101, 122 (Tex. App.- Houston [1st Dist.] 2019, pet. denied).

The same evidence of acts and omissions used to establish grounds for termination under Texas Family Code section 161.001(b)(1) may also be relevant to determining the best interest of the child.¹⁷ See In re C.H., 89 S.W.3d at 28; In re L.M., 104 S.W.3d at 647. The trial court is given wide latitude in determining the best interest of the child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); see also Cuellar v. Flores, 238 S.W.2d 991, 992 (Tex. App.-San Antonio 1951, no writ) (trial court "faces the parties and the witnesses, observes their demeanor and personality, and feels the forces, powers, and influences that cannot be discerned by merely reading the record").

17 The trial court found, as grounds for termination of the parent-child relationship, that father failed to comply with the provisions of a court order that specifically established the actions necessary for father to obtain the return of S.H. See Tex. Fam. Code Ann. § 161.001(b)(1)(O). Father does not assert, as an issue on appeal, that the evidence was legally or factually insufficient to support the trial court's finding that he failed to comply with the provisions of a court order that specifically established the actions necessary for father to obtain the return of S.H. See id.

1. Child's Desires

When father's parental rights were terminated, S.H. was three years old. He did not directly express a desire as to whether he wished to return to father's care or remain in the care of the maternal aunt and the maternal uncle. Nevertheless, we note that S.H. was placed with the maternal aunt when he was two years old, and at the time of trial, he had been living with the maternal aunt and the maternal uncle for about a year and a half. S.H. had not lived with father for any significant portion of his life. See In re L.M.N., No. 01-18-00413-CV, 2018 WL 5831672, at *20 (Tex. App.-Houston [1st Dist.] Nov. 8, 2018, pet. denied) (mem. op.) (considering, in affirming trial court's finding that termination of parental rights was in child's best interest, that young child had spent majority of life with foster parents); In re J.S.B., Nos. 01-17-00480-CV, 01-17-00481-CV, 01-17-00484-CV, 2017 WL 6520437, at *17 & n.41 (Tex. App.-Houston [1st Dist.] Dec. 17, 2017, pet. denied) (mem. op.) (noting younger child had spent majority of life living away from parent).

DFPS caseworker Pinnekins testified that S.H.'s placement with the maternal aunt and the maternal uncle was stable and meeting his needs. S.H. was closely bonded with the maternal aunt and the maternal uncle and their children. He had adjusted well to living with the maternal aunt and the maternal uncle and was happy in his placement. The maternal aunt and the maternal uncle wanted to adopt S.H. and wanted to "love him and raise him and provide for all of his future needs."

According to Pinnekins, while in his placement with the maternal aunt and the maternal uncle, S.H. had learned the alphabet, numbers, shapes, and colors, which Pinnekins attributed to the maternal aunt "working with him diligently to expand on his education." Pinnekins testified that S.H. was comfortable in his placement with the maternal aunt and the maternal uncle, was happy in his placement, loved the maternal aunt and the maternal uncle's family, and wanted to stay with the maternal aunt and the maternal uncle. See In re L.M.N., 2018 WL 5831672, at *20 (considering, when determining child's desires, evidence child doing well in placement with foster parents, who were meeting child's needs); In re M.L.R-U., Jr., 517 S.W.3d 228, 238 (Tex. App.-Texarkana 2017, no pet.) (considering evidence foster family provided safe and healthy environment when determining children's desires).

The maternal aunt testified that S.H. had previously lived with her family for several months after he was born in 2018. The maternal aunt reached out to mother in August 2020 after she became aware that mother was "staying at different places" with S.H. and mother told the maternal aunt that she had been kicked out of the home of her mother-S.H.'s grandmother. Mother agreed to allow the maternal aunt to pick S.H. up, and after that, DFPS got in touch with the maternal aunt and S.H. remained in her care.

According to the maternal aunt, it was in S.H.'s best interest to remain in his placement with her and the maternal uncle because he had been with her family for more than a year and he was an important part of the family. The maternal aunt and the maternal uncle's six children adored S.H. S.H. called the maternal aunt and the maternal uncle "Mom" and "Dad." The maternal aunt's family loved S.H. and could not imagine S.H. not being in their lives. Even if father's parental rights were not terminated by the trial court, the maternal aunt and the maternal uncle were willing to care and provide for S.H.

The maternal aunt also testified that when S.H. arrived in September 2020, he was quiet and whispered; he did not talk very much. But S.H. had developed into a talkative three-year-old. S.H. liked to color, wrestle with "his brothers," i.e., the maternal aunt and the maternal uncle's sons, play puzzles and dinosaurs, and read books. The maternal aunt was a stay-at-home parent and planned to stay home and continue to care for S.H. The maternal aunt described S.H. as an important member of the family. The maternal aunt hoped that S.H. could "become whatever he want[ed]." The maternal aunt and the maternal uncle were willing and able to provide S.H. with a safe environment.

When there is no specific evidence of a child's desires and a child is too young to express those desires, a fact finder may consider evidence that the child is bonded with his placement family, receives good care in his current placement, and has spent minimal time with a parent. See In re L.W., No. 01-18-01025-CV, 2019 WL 1523124, at *18 (Tex. App.-Houston [1st Dist.] Apr. 9, 2019, pet. denied) (mem. op.); In re L.M.N., 2018 WL 5831672, at *20; In re J.D., 436 S.W.3d 105, 118 (Tex. App.-Houston [14th Dist.] 2014, no pet.). Notably, a child's bond with his placement family implies that the child's desire would be fulfilled by adoption by the placement family. See In re L.W., 2019 WL 1523124, at *18; In re T.C.C.H., No. 07-11-00179-CV, 2011 WL 6757409, at *9 (Tex. App.-Amarillo Dec. 22, 2011, no pet.) (mem. op.).

Father testified that he was not at the hospital when S.H. was born and S.H. did not live with him before S.H. entered DFPS's custody. However, according to father, S.H. would "spend nights with [him]." Although S.H. entered DFPS's care in September 2020, father did not know that S.H. was in DFPS's care until January 2021. During the pendency of this case, father had only five visits with S.H.-four in-person visits and one virtual visit. Father was late to three of the four in-person visits he attended, and there were visits where S.H. came for a visit and father did not show up. Father had not seen S.H. in-person since July 1, 2021-six months before trial-and there were many months where father did not see S.H. at all. Even though weekly virtual visits were scheduled with S.H. at father's request, father only attended one virtual visit in October 2021-three months before trial. DFPS caseworker Pinnekins testified that it was detrimental to S.H. when father did not show up for visits because S.H. would be visibly upset and "would be down for the rest of the day." See In re K.S.O.B., No. 01-18-00860-CV, 2019 WL 1246348, at *19 (Tex. App.-Houston [1st Dist.] Mar. 19, 2019, no pet.) (mem. op.) (considering evidence parent missed visits with children when evaluating children's desires); see also In re A.B., No. 11-16-00178-CV, 2016 WL 7650560, at *3 (Tex. App.- Eastland Dec. 22, 2016, no pet.) (mem. op.) (holding evidence sufficient to support trial court's best-interest finding where parent had not "seen her child in about eight months even though visitations had been scheduled for her").

2. Current and Future Physical and Emotional Needs and Current and Future Physical and Emotional Danger

a. Safe and Stable Home

A child's need for a safe and stable home is a paramount consideration in assessing the best interest of the child. See In re L.W., 2019 WL 1523124, at *18; see also Tex. Fam. Code Ann. § 263.307(a) (prompt and permanent placement of child in safe environment presumed to be in child's best interest); In re G.M.G., 444 S.W.3d 46, 60 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (parent who lacks ability to provide child with safe and stable home is unable to provide for child's emotional and physical needs); Adams v. Tex. Dep't of Fam. & Protective Servs., 236 S.W.3d 271, 280 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (in children's best interest to be raised in consistent, stable, and nurturing environment).

Father testified that he had been living at the same residence since April 2021. Father lived there with his friend and his friend's fiancé. Father had not sought his own stable housing because he was "on and off the road so [he] didn't feel comfortable paying that much for somewhere [he] wasn't going to be the majority of the time." Father admitted that he did not have a stable residence of his own to provide to S.H., and there is no evidence in the record as to the condition of the father's current residence or evidence that S.H. would be able to live there with father. Father also readily admitted that he worked out-of-state for extended periods of time, and there is no evidence in the record as to how father would be able to provide S.H. with a safe and stable home while he was out-of-state. Father admitted that S.H. did not live with him before S.H. entered DFPS's care. See In re L.W., 2019 WL 1523124, at *18 (in affirming trial court's finding that termination of parental rights in child's best interest, considering that "there [was] no evidence in the record that [parent was] able to provide the children with a safe and stable home"); In re P.S., No. 02-16-00458-CV, 2017 WL 1173845, at *9 (Tex. App.- Fort Worth Mar. 30, 2017, no pet.) (mem. op.) (children's basic needs include safe, stable, and nurturing home environment); In re S.R., 452 S.W.3d 351, 367 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) ("Lack of stability, including a stable home, supports a finding that the parent is unable to provide for a child's emotional and physical needs."); In re J.T.G., No. 14-10-00972-CV, 2012 WL 171012, at *17 (Tex. App.-Houston [14th Dist.] Jan. 19, 2012, pet. denied) (mem. op.) ("A parent who lacks stability . . . and a home is unable to provide for a child's emotional and physical needs."); In re D.C., 128 S.W.3d 707, 717 (Tex. App.-Fort Worth 2004, no pet.) (evidence of parent's inability to provide stable home supports trial court's finding termination in child's best interest). In contrast, it appears undisputed that the maternal aunt and the maternal uncle are able to provide S.H. with a safe and stable home. See infra.

b. Violence and Criminal Conduct

A child's exposure to violence undermines the safety of the home environment and is relevant when considering the best interest of the child. See In re L.W., 2019 WL 1523124, at *19; In re A.K., Nos. 07-17-00353-CV, 07-17-00354-CV, 2018 WL 912703, at *5 (Tex. App.-Amarillo Feb. 15, 2018, pet. denied) (mem. op.); see also In re O.N.H., 401 S.W.3d 681, 685 (Tex. App.-San Antonio 2013, no pet.) ("[I]t [is] a form of abuse for the children to be exposed to an environment where physical abuse occurred even if it was not directed toward them."). And evidence of past misconduct can be used to measure a parent's future conduct. In re A.M., 385 S.W.3d 74, 82 (Tex. App.-Waco 2012, pet. denied); Banargent v. Brent, No. 14-05-00574-CV, 2006 WL 462268, at *2 (Tex. App.- Houston [14th Dist.] Feb. 28, 2006, no pet.) (mem. op) (past violence can support a finding of likely future violence); see also Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 824 (Tex. App.-Fort Worth 2007, no pet.) ("[T]rial courts [have] relied on evidence of past violence as an indicator of future behavior in parental termination and child custody cases.").

Further, a parent's criminal history is relevant in analyzing the present and future emotional and physical danger to a child and whether a parent is capable of providing a safe and stable home for his child. See In re J.S.B., 2017 WL 6520437, at *18-19; In re T.L.S., No. 01-12-00434-CV, 2012 WL 6213515, at *6 (Tex. App.-Houston [1st Dist.] Dec. 13, 2012, no pet.) (mem. op.) (evidence of parent's criminal history may support trial court's finding termination of parental rights in children's best interest). Notably, "[a]s a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of [the] child." In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort Worth 2004, pet. denied).

At the time of trial, father had a pending criminal case for the offense of assault of a family member. Father testified that the complainant in that case- complainant 2-was the mother of father's second child-S.H.'s half-sibling, who was born about a month before trial. The trial court admitted into evidence a copy of the information charging father with the misdemeanor offense of assault of a family member, which stated that father:

on or about March 12, 2021, did then and there unlawfully, intentionally[,] and knowingly cause bodily injury

to . . . [complainant 2], a person with whom [father] had a dating relationship, by striking . . . [complainant [2] with his hand, kicking [complainant [2] with his foot, and by pulling and dragging . . . [c]omplainant [2] by the hair with his hand.¹⁸

See Tex. Fam. Code Ann. § 263.307(b)(7) (in determining whether parent able to provide child with safe environment, considering history of abusive and assaultive conduct by child's family and others with access to child's home); In re A.K.T., No. 01-18-00647-CV, 2018 WL 6423381, at *12, *16 (Tex. App.-Houston [1st Dist] Dec. 6, 2018, pet. denied) (mem. op.) (considering evidence of parent's history of engaging in violent and abusive conduct in analyzing current and future emotional danger to child; parent's lack of self-control and propensity for violence may be considered as evidence of endangerment); Clements v. Haskovec, 251 S.W.3d 79, 87 (Tex. App.-Corpus Christi-Edinburg 2008, no pet.) (in parental-termination cases, evidence that parent in past engaged in abusive conduct permits inference parent will continue behavior in future); see also In re K.J.G., No. 04-19-00102-CV, 2019 WL 3937278, at *4 (Tex. App.-San Antonio Aug. 21, 2019, pet. denied) (mem. op.) (in determining whether parental conduct endangered child's physical and emotional well-being, trial court may consider conduct that did not occur in child's presence and conduct that occurred after child was in DFPS's care); In re J.B.M., No. 04-18-00717-CV, 2019 WL 1139858, at *2 (Tex. App.-San Antonio Mar. 13, 2019, pet. denied) (mem. op.) ("Domestic violence and a propensity for violence may be considered evidence of endangerment, even if the endangering acts did not occur in the children's presence, were not directed at the children, or did not cause actual injury to the children."). If father is convicted of the misdemeanor offense of assault of a family member, his punishment may be assessed at: "(1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement." See Tex. Penal Code Ann. § 12.21; see also E. B. v. Tex. Dep't of Fam. & Protective Servs., No. 03-18-00427-CV, 2018 WL 6056959, at *3 (Tex. App.-Austin Nov. 20, 2018, pet. denied) (mem. op.) ("A parent's current and future incarceration is relevant to his ability to meet the child's present and future physical and emotional needs . . . ."); In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.-Fort Worth 2009, no pet.) ("[W]hen a parent is incarcerated, he or she is absent from the child's daily life and unable to provide support to the child, negatively impacting the child's living environment and emotional well-being.").

18 See Tex. Penal Code Ann. § 22.01(a)(1), (b). We note that father allegedly committed this offense during the pendency of this case. See In re O.J.P., No. 01-21-00163-CV, 2021 WL 4269175, at *22 (Tex. App.-Houston [1st Dist.] Sept. 21, 2021, no pet.) (mem. op.) (considering, in holding evidence was sufficient to support trial court's best-interest finding, that parent "was required to refrain from participating in any illegal and criminal activity during the pendency of th[e] case, which she failed to do"); In re C.AB., 289 S.W.3d 874, 885 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (considering evidence parent continued to engage in criminal activity even though she knew her parental rights were in jeopardy). Father's FSP required him to refrain from engaging in "any illegal criminal activities or associating with individuals who engage[d] in criminal activities" and to notify the DFPS caseworker within twenty-four hours of any pending criminal charges or arrests during the pendency of the case. DFPS caseworker Pinnekins testified that after father was arrested for the "assault against a family member" offense, he did not notify DFPS.

The trial court also admitted into evidence a copy of an Order for Emergency Protection, stating that on April 14, 2021, there was a request for an "Order for Emergency Protection against [father]." The county criminal court at law found that on March 12, 2021, father was alleged to have committed the offense of assault of a family member. The county criminal court at law designated complainant 2 as a "protected individual" and found that father and complainant 2 were members of the same family or household or were involved in a dating relationship and that father "had a dating violence relationship" with complainant 2. The county criminal court at law also found that father had been arrested "for an offense involving family violence." The county criminal court at law ordered that father was prohibited from "committing family violence or an assault on" complainant 2, "committing an act in furtherance of" the offense of stalking involving complainant 2, "communicating directly with a member of the family or household or with . . . [complainant 2] in a threatening or harassing manner," "communicating a threat through any person to a member of the family or household of" complainant 2, possessing a firearm, "going to or near the residence of a member of the family or household or of" complainant 2, and "going to or near the place of employment or business of" complainant 2. See In re S.C.F., 522 S.W.3d 693, 698, 701-03 (Tex. App-Houston [1st Dist.] 2017, pet. denied) (holding evidence sufficient to support trial court's finding termination of parental rights in children's best interest where parent had "an open protective order" based on his "dragging [of] the mother on the floor[] [and] physically fighting her" (internal quotations omitted)); see also In re O.L.S., No. 04-22-00041-CV, 2022 WL 2334551, at *5 (Tex. App.-San Antonio June 29, 2022, no pet.) (mem. op.) (evidence of violence in parent's relationships, even when child not in parent's care, supported trial court's finding that termination of parental rights in child's best interest); In re A.E., Jr., No. 04-14-00092-CV, 2014 WL 3013210, at *4 (Tex. App.-San Antonio July 2, 2014, no pet.) (mem. op.) (in holding evidence sufficient to support trial court's best-interest finding, noting parent had engaged in domestic or family violence in separate relationship with person that was not child's parent).

Further, father had two other pending criminal cases at the time of trial. The trial court admitted into evidence a copy of an information, charging father with the misdemeanor offense of possession of a controlled substance. That information stated that father:

on or about July 29, 2020, did then and there unlawfully, intentionally[,] and knowingly possess a controlled substance, namely, Alprazolam, weighing less than 28 grams by aggregate weight, including any adulterants and dilutants.¹⁹

If father is convicted of the misdemeanor offense of possession of a controlled substance, his punishment may be assessed at: "(1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement." See Tex. Penal Code Ann. § 12.21; see also E. B., 2018 WL 6056959, at *3 ("A parent's current and future incarceration is relevant to his ability to meet the child's present and future physical and emotional needs . . . ."); In re M.R.J.M., 280 S.W.3d at 503 ("[W]hen a parent is incarcerated, he or she is absent from the child's daily life and unable to provide support to the child, negatively impacting the child's living environment and emotional well-being.").

19 See Tex. Heath & Safety Code Ann. §§ 481.104(a), 481.117(a), (b).

Another information, a copy of which the trial court admitted into evidence, charged father with the misdemeanor offense of failing to stop and give information in an accident involving damage to a vehicle. That information stated that father:

on or about July 29, 2020, did then and there unlawfully, while driving and operating a vehicle, was involved in an accident resulting only in damage to another vehicle, which was driven by . . . [complainant 1], and [father] intentionally and knowingly failed to stop his vehicle at the scene of the accident and as close to the scene of the accident as possible, failed to return to the scene of said accident, and failed to remain at the scene of said accident until [father] had given his name and address to . . . [c]omplainant [1], and the damages to the vehicles involved in said accident resulted in a pecuniary loss of value of at least two hundred dollars.²⁰

20 See Tex. Transp. Code Ann. §§ 550.022(a), (c)(2), 550.023.

If father is convicted of the misdemeanor offense of failing to stop and give information in an accident involving damage to a vehicle, his punishment may be assessed at: "(1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement." Tex. Penal Code Ann. § 12.22; see also E. B., 2018 WL 6056959, at *3 ("A parent's current and future incarceration is relevant to his ability to meet the child's present and future physical and emotional needs . . . ."); In re M.R.J.M., 280 S.W.3d at 503 ("[W]hen a parent is incarcerated, he or she is absent from the child's daily life and unable to provide support to the child, negatively impacting the child's living environment and emotional well-being.").

Criminal activity that exposes a parent to the potential for incarceration is relevant to the trial court's best-interest determination. See In re M.A.A., 2021 WL 1134308, at *26; see also C.M.M. v. Dep't of Fam. & Protective Servs., Nos. 14-21-00702-CV, 14-21-00730-CV, 2022 WL 1789925, at *16 (Tex. App.- Houston [14th Dist.] June 2, 2022, pet. denied) (mem. op.) (criminal activity contributes to instability in home). Here, father had three pending criminal cases against him-one that involved the possession of a controlled substance²¹ and one that involved assaulting the mother of father's second child. Cf. In re T.S., No. 01-22-00054-CV, 2022 WL 4474277, at *40 (Tex. App.-Houston [1st Dist.] Sept. 27, 2022, no pet.) (mem. op.) (holding evidence insufficient to support trial court's best-interest finding even though parent "had a pending criminal case at the time of trial" because DFPS presented little evidence as to the criminal offense that parent allegedly committed, the evidence presented at trial was disputed as to the circumstances surrounding incident that resulted in parent's pending criminal charge, DFPS "failed to provide any details as to the nature or degree of the offense with which [parent] was charged," and there was no evidence that parent had history of engaging in criminal activities outside of the one pending criminal offense). Although father testified that he was "beating the cases" and he had not been told that he was "going to jail," father's only plan for S.H. if he was incarcerated was for S.H. to stay with S.H.'s grandmother-mother's mother-a person who had kicked mother and S.H. out of her home at least twice, which led to S.H. being unhoused. See In re T.M., No. 02-22-00070-CV, 2022 WL 2527627, at *10 (Tex. App.-Fort Worth July 7, 2022, no pet.) (mem. op.) (in holding sufficient evidence supported trial court's finding that termination of parental rights was in child's best interest, considering that parent "had pending criminal charges at the time of trial" and parent did not have appropriate "plan in place for [child] if she was convicted"); C.M.M., 2022 WL 1789925, at *9, *14-16 (holding evidence sufficient to support trial court's best-interest finding even when parent testified that she believed her pending criminal charges would be "dropped").

21 DFPS caseworker Pinnekins testified that because father had a pending criminal case involving possession of a controlled substance, it was concerning that father had not participated in narcotics-use testing for the majority of the case; the last time that father participated in the required narcotics-use testing was in January 2021- a year before trial. Because father had not participated in the required narcotics-use testing, DFPS had not been able to establish father's sobriety.

3. Parental Abilities, Plans for Child, Stability of Proposed Placement, and Availability of Assistance

a. Father

As discussed above, there is no evidence in the record that father is able to provide S.H. with a safe and stable home. Father admitted that he did not have a stable residence of his own to provide to S.H. and acknowledged that he often worked out-of-state for extended periods of time. There was no indication from father that he had a plan if S.H. was returned to his care and he was required to go out-of-state for work. See Tex. Fam. Code Ann. § 263.307(a); In re I.L.G., 531 S.W.3d 346, 356 (Tex. App.-Houston [14th Dist.] 2017, pet. denied) (stability of proposed placement important consideration in determining whether termination of parental rights in children's best interest).

Father also testified that he was not at the hospital when S.H. was born because mother did not want him there as they "were fighting at the time." According to the maternal aunt, after S.H. was born, mother and S.H. lived with the maternal aunt and the maternal uncle for about two-and-a-half months, beginning in June 2018. While mother and S.H. lived with the maternal aunt and the maternal uncle, father visited every couple of weeks, but toward the end of July and August 2018 before mother moved out, father visited every couple of days. The maternal aunt testified that father was not paying child support at that time but would give mother money occasionally.

Father testified that before S.H. entered DFPS's care, he saw him on a regular basis, but S.H. had never lived with him; S.H. had only ever spent the night with father. According to father, when S.H. was with him, he would provide S.H. with food, clothing, and toys.

Father admitted that despite the fact that S.H. entered DFPS's care in September 2020, father did not know that S.H. was in DFPS's care until January 2021. That means that for a period of about three months, father had no contact with S.H.²² Further, father only visited S.H. a few times during the pendency of the case.²³The last time that father saw S.H. in person was July 1, 2021-about six months before trial. Although father initially had twice a month in-person visits scheduled with S.H., father only came to four out of the ten scheduled visits. And of the four in-person visits he attended, he was late to three of those visits. According to DFPS caseworker Pinnekins, there were times when the maternal aunt would bring S.H. for a visit with father, and father would not show up. Pinnekins believed that this was detrimental to S.H., who would be visibly upset and "would be down for the rest of the day."

22 We note that it is undisputed that father was not "the reason that [S.H.] came into [DFPS's] care." Yet father testified that he knew mother "had a drug problem" because "something[] [was] not right" with her.

23 DFPS caseworker Pinnekins testified that when father did have visits with S.H. the visits were appropriate. But according to Pinnekins father did "not bring anything for" S.H. Father "would just show up and they would play with the toys provided by the [maternal] aunt or they would watch videos on [father's cellular] [tele]phone."

After father's July 2021 visit with S.H., father did not see S.H. again until October 25, 2021-when father had a virtual visit with S.H. Although father had requested that DFPS set up virtual visits for him and S.H. because of his work schedule, father only attended one virtual visit with S.H. after he had agreed to a weekly virtual visitation schedule. Father would not notify Pinnekins when he would not be able to attend a virtual visit, and this would result in Pinnekins and the maternal aunt still logging on to the virtual visit to see if father would "show up." According to father, his reason for missing his visits with S.H. was not because he did not want to see S.H.

Pinnekins testified that DFPS tried to accommodate father continuing a relationship with S.H., but father had not shown or demonstrated that he was able to be a consistent presence for S.H. This was concerning because if father was not "available for visits," "how c[ould] he be available for a child so young and [be able to] provide for all of his needs when he c[ould not] commit to . . . visitation." It was not in S.H.'s best interest for father "to come and go as [he] please[d] and be an inconsistent adult figure and parent for" S.H. See In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied) (trial court may measure parent's future conduct by past conduct); see also In re K.S., 420 S.W.3d 852, 855-56 (Tex. App.- Texarkana 2014, no pet.) (lack of contact between parent and child weighed in favor of termination because it showed "lack of resolve" or disinterest in parenting child).

As to father's employment, father testified that he worked two jobs. He began working for Cotton in February 2021-about eleven months before trial-and he began working for Acme at the end of November 2021-about two months before trial. Father was paid hourly and received a paycheck once a week, but there is no evidence in the record as to father's ability to support S.H. Father also explained that he had been working "in and out" of state since February 2021, when he began working at Cotton. And "[a]ny time there[] [was] a natural disaster or anything, [he was] sent out of town for it." When father was asked why he had not provided financial support for S.H. during the pendency of the case, despite being employed, father stated that he had "text messaged or asked [the maternal aunt and the maternal uncle] if they need[ed] money, anything, [and] they told [him] no." According to father, he had given S.H. toys and candy at in-person visits and he had given S.H. money at an in-person visit. The maternal aunt testified that since January 2021, father had only given S.H. a toy car and eight dollars. In December 2020, father gave S.H. some Christmas presents. Father agreed that it was his responsibility to care for S.H. And S.H., as a three-year-old, had daily needs. Father also agreed that it would have been reasonable for him to have given items or money to the DFPS caseworker who could have provided such things to the maternal aunt.

Father did not complete the requirements of his FSP in this case. See In re I.L.G., 531 S.W.3d at 355 ("In determining the best interest of the child in proceedings for termination of parental rights, the trial court may properly consider that the parent did not comply with the court-ordered service plan for reunification with the child."); In re A.L.W., No. 01-14-00805-CV, 2015 WL 4262754, at *12 (Tex. App.-Houston [1st Dist.] July 14, 2015, no pet.) (mem. op.) (fact finder could infer from parent's failure to take initiative to complete services required to regain possession of her children that parent did not have ability to motivate herself to seek out available resources needed now or in future); cf. In re N.J.H., 575 S.W.3d 822, 835 (Tex. App.-Houston [1st Dist.] 2018, pet. denied) (whether parent complied with FSP proper consideration in best-interest analysis and parent's compliance with FSP weighed in parent's favor and against termination). He failed to participate in random narcotics-use testing, complete the required parenting classes, maintain consistent contact with DFPS,²⁴ consistently visit S.H.,²⁵ provide proof of stable housing and employment,²⁶ refrain from engaging in illegal criminal activities, notify DFPS of his arrest for the offense of assault of a family member,²⁷ and notify DFPS when his contact information changed.²⁸ See In re I.L.G., 531 S.W.3d at 356 ("[Parent's] failure to complete the court-ordered service plan demonstrate[d] that she [was] unwilling to take advantage of the services offered to her by [DFPS] and cast[ed] doubt on her parenting abilities."); In re T.S., No. 02-17-00047-CV, 2017 WL 2290195, at *3 (Tex. App.-Fort Worth May 25, 2017, no pet.) (mem. op.) (holding evidence sufficient to support trial court's best-interest finding, where although father had completed his parenting classes and remained employed, he refused to submit to narcotics-use testing, only attended about half of his visits with his child, and failed to maintain contact with the DFPS caseworker); cf. In re T.S., 2022 WL 447277, at *43 (stating failure of parent to complete requirements of FSP not determinative on best-interest analysis, where it was undisputed that parent only stopped working on requirements of FSP after DFPS, six months before trial, told parent that children would never be returned to his care). Father's main excuse for failing to participate in random narcotics-use testing was that he was out-of-state for work or that when he was in town, testing was only available during his work hours. However, when DFPS provided father with a place to do narcotics-use testing on Saturdays, father did not go because it was too far away.

24 Father's FSP required him to maintain contact with the DFPS caseworker in person and by telephone at least once a month.

25 Father's FSP required him to attend all family visits.

26 Father's FSP required him to show legal and verifiable employment, to have stable employment or income to meet his family's basic needs, and to provide the DFPS caseworker with "paystubs or income verification every month." (Emphasis added.) Father was also required to maintain stable housing and demonstrate an ability to keep a stable environment for his family. Father's housing needed to be safe, clean, and free of hazards to ensure S.H.'s safety and well-being. Father was required to "submit a housing agreement or utility bill to the [DFPS] caseworker to show proof of residence." And father was to be available for the DFPS caseworker to conduct random and scheduled home visits. Father was required to provide DFPS with the name and necessary background information for all members of his household.

27 Father's FSP required him to refrain from engaging in "any illegal criminal activities or associating with individuals who engage[d] in criminal activities." Father was to notify the DFPS caseworker within twenty-four hours of any pending criminal charges or arrests during the pendency of the case.

28 Father's FSP required him, if his contact information or housing changed, to contact the DFPS caseworker within forty-eight hours.

b. Current Placement

S.H., a three-year-old, had been living with the maternal aunt, the maternal uncle, and their six children since September 2020-for about a year and a half at the time of trial. See Tex. Fam. Code Ann. § 263.307(a); In re I.L.G., 531 S.W.3d at 356 (stability of proposed placement important consideration in determining whether termination of parental rights in children's best interest); In re J.D., 436 S.W.3d at 118 ("The goal of establishing a stable, permanent home for a child is a compelling . . . interest."). DFPS caseworker Pinnekins testified that S.H.'s placement with the maternal aunt and the maternal uncle was meeting his needs, and S.H. was closely bonded with the maternal aunt, the maternal uncle, and their children. S.H. had "adjusted greatly"; he was happy in his placement and comfortable. He was a happy and friendly child.

Pinnekins, who had visited S.H. consistently throughout the pendency of the case, stated that she had no concerns about the ability of the maternal aunt and the maternal uncle to provide stability for S.H. or about their ability to provide for S.H.'s physical, emotional, and mental needs. According to Pinnekins, the maternal aunt and the maternal uncle wanted to adopt S.H., and they were willing to "love him and raise him and provide for all of his future needs." See In re L.W., 2019 WL 1523124, at *23 (in holding evidence sufficient to support trial court's best-interest finding, considering children were placed in adoptive home with foster parents who wanted children to continue living with them). According to Pinnekins, the maternal aunt and the maternal uncle had moved to a larger home-a four-bedroom house-during the pendency of the case, and the new home was able to accommodate S.H. and the maternal aunt and the maternal uncle's children.

While in the placement with the maternal aunt and the maternal uncle, S.H. had learned the alphabet, numbers, shapes, and colors, which Pinnekins attributed to the maternal aunt "working with him diligently to expand on his education." See In re P.G.D., No. 04-19-00896-CV, 2020 WL 2543310, at *5 (Tex. App.-San Antonio May 20, 2020, pet. denied) (mem. op.) (considering children were in loving foster home that was meeting their needs and children were making developmental and academic progress); In re M.Y., No. 2-07-186-CV, 2008 WL 204618, at *12 (Tex. App.-Fort Worth Jan. 24, 2008, no pet.) (mem. op.) (holding evidence sufficient to support trial court's finding termination of parental rights in child's best interest when evidence reflected that child was flourishing in his foster family and had bonded with foster family's children). The maternal aunt was "keeping up with all of [S.H.'s] appointments." S.H. loved the maternal aunt and the maternal uncle's family and wanted to stay in his current placement.

The maternal aunt testified that when S.H. first arrived, he was quiet and whispered; he did not talk very much. But S.H. had developed into a talkative three-year-old. S.H. liked to color, wrestle with "his brothers," i.e., the maternal aunt and the maternal uncle's sons, play puzzles and dinosaurs, and read books. S.H. ate and slept well at the maternal aunt and the maternal uncle's home. S.H. did not have any special needs, but if any arose, the maternal aunt would see that S.H. received any services or therapies that he needed.²⁹

29 The maternal aunt stated that two of her other children had participated in different therapies, including occupation therapy, physical therapy, and speech therapy.

The maternal aunt explained that she and the maternal uncle had six children, and the maternal aunt was a "stay-at-home parent." The maternal aunt also worked part-time at a church on Wednesdays. She planned to stay home and continue to care for S.H. The maternal aunt described S.H. as an important member of the family. The maternal aunt hoped that S.H. could "become whatever he want[ed]." The maternal aunt and the maternal uncle were willing and able to provide S.H. with a safe environment.

According to the maternal aunt, it was in S.H.'s best interest to remain in his placement with her and the maternal uncle because he had been with the family for more than a year and he was an important part of the family. The maternal aunt and the maternal uncle's six children adored S.H., and S.H. called the maternal aunt and the maternal uncle "Mom" and "Dad." The family loved S.H. and could not imagine S.H. not being in their lives. Even if parental rights were not terminated by the trial court, the maternal aunt and the maternal uncle were willing to care and provide for S.H. See In re G.J.A., No. 13-22-00209-CV, 2022 WL 3092177, at *8 (Tex. App.- Corpus Christi-Edinburg Aug. 4, 2022, no pet.) (mem. op.) (in holding sufficient evidence to support trial court's best-interest finding, considering evidence showed that children were thriving in current placement, placement was meeting all of the children's needs, children called their foster parents "mom and dad," and children were bonded with foster family (internal quotations omitted)); In re D.A., No. 02-15-00213-CV, 2015 WL 10097200, at *6 (Tex. App.-Fort Worth Dec. 10, 2015, no pet.) (mem. op.) (considering in a best-interest review that children were thriving in their grandmother's care, she provided for their essential needs, and she wanted to adopt them and provide them with a permanent and stable home); J.D.S. v. Tex. Dep't of Fam. Protective Servs., 458 S.W.3d 33, 44-45 (Tex. App.-El Paso 2014, no pet.) (noting, in holding evidence was sufficient to support trial court's finding termination of parental rights in child's best interest, that child was thriving in placement, she considered her foster parents to be her "mom and dad," and child was improving while in DFPS's care (internal quotations omitted)).

The maternal uncle testified that he was a program coordinator at Houston Community College, and he had been working there since 2018. The maternal uncle had always had full-time employment. The maternal uncle also did adjunct teaching for extra income and some "freelance work." The maternal uncle and the maternal aunt had been living in their current home for about seven months. See In re M.R.H., No. 07-15-00089-CV, 2015 WL 3463025, at *4 (Tex. App.-Amarillo May 26, 2015, pet. denied) (mem. op.) (considering as evidence of foster family's ability to care for child that foster father was gainfully employed).

The permanency report, a copy of which the trial court admitted into evidence, stated that S.H. was three years old and "not school aged." S.H. was placed with the maternal aunt and the maternal uncle. He was "a very happy toddler that love[d] to engage in different age[-]appropriate activities such as painting, puzzles, and blocks." S.H. "enjoy[ed] school time in the [maternal aunt's] home" and was improving on his letter recognition, colors, and numbers. S.H. loved dinosaurs, Spider-Man, and Captain America. S.H. had "made progress with potty training," and he was developmentally on target. While living with the maternal aunt and the maternal uncle, S.H. had medical checkups, vision examinations, and dental examinations. S.H. was up to date on his immunizations and was in "good health." There were no concerns about S.H.'s dental hygiene. S.H. did not take any medication. See In re D.G., No. 14-19-00069-CV, 2019 WL 2536588, at *4 (Tex. App.-Houston [14th Dist.] June 20, 2019, pet. denied) (mem. op.) (evidence that child's foster parents had "proven they w[ould] do everything in their power to meet" child's medical needs supported trial court's finding that termination of parental rights in child's best interest); In re A.A., No. 02-17-00307-CV, 2018 WL 771972, at *6 (Tex. App.-Fort Worth Feb. 8, 2018, no pet.) (mem. op.) (considering evidence foster parents took child to all her appointments and were meeting her medical needs).

The permanency report also noted that the maternal aunt and the maternal uncle had expressed their willingness to provide permanency for S.H. if family reunification was not possible. The permanency report stated that adoption was in S.H.'s best interest because he had lived with the maternal aunt and the maternal uncle since September 2020. S.H. had closely bonded with the maternal aunt and the maternal uncle's family. S.H.'s placement with the maternal aunt and the maternal uncle was meeting "all of his needs for safety, medical, dental, emotional, and social." The maternal aunt and the maternal uncle provided educational stability to S.H. S.H. was "being home schooled" by the maternal aunt "with age[-]appropriate learning stimulus."

The home assessment related to the maternal aunt and the maternal uncle's home, a copy of which the trial court admitted into evidence, stated that the maternal aunt and the maternal uncle moved into a new home on July 16, 2021-about six months before trial. The home had four bedrooms and two-and-a-half bathrooms. The first floor of the home had a family room, kitchen, half-bathroom, office, and a primary bedroom and bathroom. The first floor was fully furnished. The second floor of the home had a play area, three bedrooms, and a full bathroom. The maternal aunt and the maternal uncle's daughter, the only female child in the home, had her own bedroom. The two oldest male children shared a bedroom, and the four youngest male children, which included S.H., shared a bedroom. The second floor was fully furnished, and each child had their own individual sleeping arrangements. In S.H.'s bedroom, there were two sets of bunk beds, and S.H.'s bed was on the bottom bunk. The play area on the second floor consisted of "an open space outside of the three bedrooms."

The home also had a "large and spacious, fenced backyard for the children to play safely." There was no swimming pool or trampoline at the home. The front yard of the home was open, which required S.H. to be supervised if he was playing in the front yard.

Overall, the maternal aunt and the maternal uncle's home was neat, clean, and free of clutter. There were no "observable safety concerns." The home was "childproofed with cabinet latches and outlet covers." The "cleaning products [were] stored in the laundry room on the top shelf and not accessible to [the] younger children." S.H. could not reach the cleaning products. Medications were stored in a cabinet in the maternal aunt and the maternal uncle's primary bathroom. There were smoke detectors in all of the bedrooms, the kitchen, and the family room. There was a fire extinguisher on each level of the home. There were not "observable concerns regarding the home's condition." See In re J.M., 156 S.W.3d 696, 708 (Tex. App.-Dallas 2005, no pet.) (holding evidence sufficient to support trial court's best-interest finding where "[t]he evidence show[ed] the foster parents' home [was] stable"). The home assessment noted that "CPS and [c]riminal [h]istory checks" had been conducted for the maternal aunt and the maternal uncle and "no history was identified."

The home assessment listed, as "strengths" related to the maternal aunt and the maternal uncle, that they were "willing and interested in caring for [S.H.] long-term if he[] [was] unable to be reunited with his parent[s]," there had not been "any significant or identified concerns pertaining to [S.H.] since his placement with [the maternal aunt and the maternal uncle]," S.H. appeared to be fully adjusted and acclimated to the home and appeared to be doing well, the maternal aunt and the maternal uncle's new home "provide[d] more space for the family to live comfortable," and each child in the home had their own individual sleeping space.

Viewing the evidence in the light most favorable to the trial court's finding, we conclude that the trial court could have formed a firm belief or conviction that termination of father's parental rights was in the best interest of S.H. See Tex. Fam. Code Ann. § 161.001(b)(2). And viewing the evidence in a neutral light, we conclude that a reasonable fact finder could have formed a firm belief or conviction that termination of father's parental rights was in the best interest of S.H. See id. We further conclude that the trial court could have reconciled any disputed evidence in favor of finding that termination of father's parental rights was in S.H.'s best interest or any disputed evidence was not so significant that a fact finder could not have reasonably formed a firm belief or conviction that termination of father's parental rights was in the best interest of S.H.

Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court's finding that termination of father's parental rights was in the best interest of S.H.

We overrule father's first and second issues.

Conclusion

We affirm the order of the trial court.