Opinion
NO. 14-17-00832-CV
04-10-2018
IN THE INTEREST OF K.D.H., A CHILD
On Appeal from the 310th District Court Harris County, Texas
Trial Court Cause No. 2016-44846
MEMORANDUM OPINION
This accelerated appeal arises from a final decree in a suit in which termination of the parent-child relationship was at issue. See Tex. Fam. Code Ann. § 109.002(a-1) (West 2014 & Supp. 2017) The trial court terminated the parental rights of L.D.C. (Mother) and W.H. (Father), respectively, with respect to their son, Kevin, and appointed the Texas Department of Family and Protective Services (the Department) to be Kevin's managing conservator.
We use pseudonyms or initials to refer to the child, parents, and other family members involved in this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
Only Father appeals. He challenges the sufficiency of the evidence to support termination. We conclude legally and factually sufficient evidence supports the trial court's findings that Father endangered Kevin and that termination of Father's parental rights is in Kevin's best interest. Therefore, we affirm the trial court's judgment.
BACKGROUND
A. Removal
The following facts come from the affidavit of Department investigative caseworker Eugene Atkins.
When Kevin was born in May 2016, Mother had a pending case with the Department about her other four children, none of whom is Father's child. Atkins told the parents Kevin could not be discharged into their care due to Mother's pending case and Father's criminal history. Atkins asked Mother to identify a friend or relative who could take care of Kevin when he was ready to be discharged. On June 10, 2016, Atkins met with both parents and Ellen, Mother's sister. All agreed Ellen would serve as a Parental Child Safety Placement (PCSP) for Kevin. The record does not indicate when Kevin was discharged from the hospital.
The Department filed its original petition on July 6, 2016, attaching Atkins's affidavit. The petition asks the trial court to appoint the Department as Kevin's temporary managing conservator. The record does not reflect events between the date the parents agreed to the PCSP and the date the Department filed suit, nor does it indicate why the Department filed suit at that time.
Following a full adversary hearing, the trial court found that allowing Kevin to be in Mother's or Father's care was contrary to Kevin's welfare. The trial court ordered Kevin to be removed from his parents' care and named the Department as his temporary managing conservator. Ellen continued to care for Kevin.
B. Family service plan
The Department created family service plans for Mother and Father and submitted them for court approval. The trial court signed an order on September 20, 2016, approving the service plans and adopting them as orders of the court.
Father's service plan identified the goals to achieve and tasks and services to complete before Kevin could be placed in his care. The goals, described as "changes needed to reduce risk," included Father's willingness and ability to accept the responsibility of being a parent, to protect Kevin from harm, and to meet Kevin's basic needs. So he could accomplish those goals, the Department's service plan required Father to, among other things:
1. complete parenting classes;
2. submit to random drug testing and test negative at all times;
3. obtain and maintain suitable employment or education and provide the caseworker with appropriate documentation;
4. pay monthly child support as required by the court;
5. complete individual therapy and follow the therapist's recommendations;
6. obtain and maintain safe, stable housing for at least six consecutive months and provide the caseworker with a copy of the lease agreement or ownership documents;
7. use best efforts to attend all court hearings, permanency team meetings, scheduled family visitations with Kevin, and scheduled appointments;
8. complete a psychosocial evaluation and follow the evaluator's recommendations; and
9. cooperate with the Department and follow all recommendations.
Father signed the family service plan on September 20, 2016.
C. Trial
Trial was held in July 2017. The Department presented testimony from Mother, Father, Ellen, a family friend named Lisa, and caseworker Robin Nelson. Mother and Father both testified in Father's case-in-chief as well. Neither Mother nor Kevin's attorney ad litem called witnesses or presented evidence.
The documentary evidence relevant to this appeal is: Father's service plan and the court order approving it; another court order regarding Father's required services; Father's criminal records; excerpts from Mother's and Father's Facebook pages; and two paystubs for Father.
1. Evidence about Father
a. Domestic violence
Convictions. From 2009 to 2017, Father was charged with assault or aggravated assault of four women. He pleaded guilty to three of the charges. The other charge was dismissed because the complainant could no longer be found.
The complaints in these cases reveal Father's escalating violence. He allegedly hit the first complainant, Brenda, in the face, and pushed the second complainant, Tammy. The third charge (the one that was dismissed) arose from Father's assault of his sister, Melanie. He allegedly strangled her, causing her to lose consciousness. Melanie reported Father also punched her in the face and threw her to the ground.
The fourth and most recent domestic violence conviction arose from an aggravated assault Father committed on May 7, 2016, about two weeks before Kevin was born. The complainant, Cassandra, was Father's ex-wife and mother of his other two sons, Kyle and Wade. According to the probable cause affidavit, Cassandra told police officers Father forced himself into her apartment and tried to strike her in the head with a metal lug wrench. As Cassandra struggled to take the wrench, Father bit her finger, breaking the skin. Father threatened at least once during the attack to kill Cassandra. Thirteen-year-old Kyle came out of his bedroom and wrestled with Father in an effort to help his mother. Father left the apartment and bashed Cassandra's windshield three times with the lug wrench. With a police officer standing next to her, Cassandra called Father using a speaker-phone feature. The officer listened as Father said, "I'm still in the apartment complex; I don't care about no police."
The record contains a Magistrate's Order for Emergency Protection for Cassandra and Kyle signed on May 2, 2017, nearly a year after the assault and almost three months before trial. The order prohibits Father from communicating with or coming within 200 feet of Cassandra or Kyle. The record does not reflect whether something in addition to the 2016 assault precipitated the protective order.
The Department questioned Father at trial about the four domestic violence charges, specifically about the complainants. Father said he did not recall Brenda or Tammy, saying, "it's been so long ago [that] I can't even remember." He remembered his sister but neither admitted nor denied attacking her. As for Cassandra, he testified he was surprised to have been arrested:
Q. And why were you arrested for the assault against [Cassandra]? Do you know?
. . .
A. Actually I wasn't arrested. I actually didn't know there was a warrant out for my arrest, to my knowledgement [sic]. So when I got arrested here in court, it was like — it was mind-blowing because in actuality I know I didn't aggravate assault nobody. I wasn't charged with no aggravate assault on nobody.
. . .
Q. And did you engage in an altercation with [Cassandra] on May 7th of 2016?
A. Not to my knowledgement, no.
. . .
Q. Okay. Did you go to [Cassandra's] house with a lug wrench?
A. No, ma'am. . . .
Uncharged domestic violence against Mother. In pretrial statements to the Department and in their trial testimony, both Mother and Father denied domestic violence in their relationship. Two other witnesses disagreed and testified about specific instances of Father acting violently toward Mother.
Each parent also denied being in a romantic relationship with the other, though Father admitted they "occasionally" have sex. To contradict their testimony, the Department introduced printouts of each of the parents' Facebook pages, in which each wrote he or she was "in a relationship" with the other. Both parents said that information was no longer accurate.
Ellen, Mother's sister, described three assaults by Father against Mother, the first two before Kevin was born and the third just a few days before trial. She did not see the first assault and did not offer details about it. She saw the aftermath of the second assault:
[H]e beat her up real bad before she had [Kevin]; and she called me to come pick her up. And, well, she had told me over the phone that he had kicked her in the mouth with steel-toed [boots]. And when I got to her, she was bleeding. Her lip was hanging. He drug her out of my car, threw her on the ground.
Ellen drove Mother to a safe location, where they waited for the police. She said Mother pursued but then dropped charges against Father. Ellen saw the third assault personally. She testified:
[T]his past weekend on Friday, they were arguing and had a fight when I went with them to go get [Kevin] some shoes and an outfit. . . . They were arguing in front of me. He pushed her in the face, and I was behind.
Lisa is a friend of Mother's family. She testified she recently stayed with Mother's mother for about 10 days. Mother and Father lived in the grandmother's home as well. Lisa described Mother and Father as "boyfriend and girlfriend." She recounted a violent episode she saw a few days earlier when she, her boyfriend, Mother, and Father were going shopping, which appears to be the third episode Ellen described. "At first," Lisa testified, "we were having a normal conversation, all were talking and laughing. And then we were led off into a conversation that I don't know they should have been having around me. There were personal things, and he hit her." Lisa said Father punched Mother multiple times in the left side of her face with a closed fist. Father and Mother then dropped Lisa off and continued on their own. The Department offered evidence that Mother sent a text message to Lisa after she left that said, "Call 911." When asked why she instructed Lisa to call 911, Mother testified, "Because I did."
b. Other criminal activity
Father's criminal history dates back to 2002. He pleaded guilty that year to possession of less than one gram of cocaine and was sentenced to serve 10 months in state jail. In 2006, he was indicted for possession of a weapon by a felon. The State reduced the charge to unlawful carrying of a weapon in exchange for Father's guilty plea. The criminal court sentenced him to one year's confinement in county jail. Father pleaded guilty again in 2008 to possession of less than a gram of cocaine. Based on Father's plea-bargain agreement with the State, the criminal court sentenced him to serve eight months in county jail.
c. Willingness and ability to provide for Kevin
Father began a job two weeks before trial, earning $10 per hour. Before that job, he testified, he "was just going to labor places here and there." For a six-month (180-day) period during that "here and there" employment, Father estimated he worked "[a]t least 400, 500 days."
Father said he supported Kevin by giving money to Mother to pass on to Ellen. He estimated he provided between $500 and $600 for Kevin's care. He also said he brought Kevin "little small things" like onesies, pacifiers, and bibs.
Ellen testified she never received any money from Mother or Father for Kevin. She said the only time the parents provided items for Kevin was the week before trial, when they brought wipes, some clothing, and a pair of shoes.
d. Service plan
The evidence is undisputed that Father did not satisfy the requirements of his family service plan. He was scheduled to begin parenting classes the week after trial. He admitted he had already had nine months, from September 2016 through the time of trial in July 2017, in which to meet his obligation. According to Father, when he tried to enroll in parenting classes previously, every provider he called had a waiting period of three to six months. Father also failed to complete court-ordered domestic violence counseling. He testified he could not afford to enroll in the program, but he conceded he had not asked the Department or the court for assistance.
Father was discharged twice from individual counseling for non-attendance; he missed three appointments before each discharge. He attributed his non-attendance to car trouble or other problems beyond his control, including lack of flexibility in his work schedule. Similarly, Father testified he attended most but missed "maybe four" visits with Kevin over the course of the year, again due to circumstances he could not control.
Caseworker Robin Nelson testified Father did not comply with the service plan's requirements for stable employment and housing. The first time Father provided Nelson with a paystub to document his employment was shortly before trial. She asserted Father lacked appropriate housing but admitted she had not visited the home where Father said he lives with his brother.
2. Evidence about Kevin
Nelson and Ellen testified Kevin is doing well in Ellen's home. He is happy and well-bonded with Ellen and her three children, and Ellen plans to adopt him if possible. Still, Ellen confirmed Kevin "will always know who his real mother is." Ellen also planned to maintain a relationship with Mother's brother (who is not Ellen's brother), who has custody of Mother's other four children, so Kevin and his siblings could be in one another's lives.
Kevin requires ongoing treatment for bronchial problems. Doctors prescribed Albuterol as needed, and Ellen is comfortable administering the medicine to Kevin.
Ellen's home has two bedrooms. Her two daughters sleep in one and Ellen, her son, and Kevin sleep in the other. She said she was in the process of moving.
Ellen quit her job to take care of Kevin full time. The family lives off the social security benefits her children receive due to the death of their father. Ellen testified she took care of Kevin without any financial assistance until two or three months before trial. The record suggests that date is when Ellen became licensed as a foster parent and was therefore entitled to assistance.
Mother and Father believed it is not in Kevin's best interest to remain in Ellen's care. Mother testified Ellen is "mentally disabled," by which she meant Ellen "is bipolar and severe depression." Ellen was supposed to take medication for those conditions, Mother said, but Mother had not seen her take her medicine recently and that was why Mother was concerned. Mother also asserted Ellen's 14-year-old daughter, Amanda, who babysits Kevin, tried to commit suicide and was hospitalized. Ellen contradicted Mother's account. She said Amanda had been hospitalized for depression but did not attempt suicide. She further testified Amanda had been treated and successfully discharged by a psychiatrist.
Nelson testified it is in Kevin's best interest to terminate Father's parental rights due to his history of domestic violence and failure to demonstrate an ability to meet Kevin's basic needs. Father disagreed; he wanted Kevin to be released to him or Father's mother.
3. Trial court's findings
The trial court found Mother and Father engaged in the conduct described in subsections D, E, and O of section 161.001(b)(1) of the Family Code. The court additionally found termination of their parental rights was in Kevin's best interest. The trial court appointed the Department to be Kevin's managing conservator. Father filed a motion for new trial, which was denied.
ANALYSIS
I. Burden of proof and standards of review
Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980); In re J.E.M.M., 532 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2017, no pet.). However, the child's emotional and physical interests must not be sacrificed to preserve parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Parental rights can be terminated if clear and convincing evidence shows (1) the parent committed an act described in section 161.001(b)(1) of the Family Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp. 2017). Only one predicate finding under section 161.001(b)(1), along with the best-interest determination, is necessary to support termination. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (West 2014). This heightened burden reflects the severity of termination.
The heightened burden of proof results in heightened standards of review for evidentiary sufficiency:
• Legal sufficiency. We consider all the evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. We assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence a reasonable fact finder could disbelieve. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
• Factual sufficiency. We consider and weigh all the evidence, including disputed or conflicting evidence, to determine whether a reasonable fact finder could have formed a firm belief or conviction that is finding was true. We consider whether disputed evidence is such that a reasonable
fact finder could not have resolved that dispute in favor of its finding. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
The fact finder is the sole arbiter when assessing the credibility and demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam). We may not second-guess the fact finder's resolution of a factual dispute by relying on disputed evidence or evidence the fact finder "could easily have rejected as not credible." In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
II. Predicate ground for termination: Endangerment under subsection E
In his first two issues, Father challenges the legal and factual sufficiency of the evidence to support the trial court's finding regarding subsections D, E, and O of section 161.001(b)(1) of the Family Code. We conclude the evidence is legally and factually sufficient to support the finding regarding subsection E. Accordingly, we do not review the finding regarding subsections D or O. A.V., 113 S.W.3d at 362.
A. Legal standards
Subsection E of Family Code section 161.001(b)(1) requires clear and convincing evidence that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(E). "To endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). "Conduct" includes acts and failures to act. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). The parent's conduct both before and after the Department removed the child from the home is relevant to a subsection E inquiry. S.R., 452 S.W.3d at 361 (considering pattern of criminal behavior and imprisonment before and after removal).
A finding of endangerment under subsection E requires evidence the endangerment was the result of the parent's conduct, including acts, omissions, or failures to act. Id. at 360. Termination under subsection E must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. Id. at 361. A court properly may consider actions and inactions occurring both before and after a child's birth to establish a "course of conduct." In re S.M., 389 S.W.3d 483, 491-92 (Tex. App.—El Paso 2012, no pet.). Although endangerment often involves physical endangerment, the statute does not require that conduct be directed at a child or that the child actually suffer injury. Rather, the specific danger to the child's well-being may be inferred from the parent's misconduct alone. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.—Fort Worth 2004, pet. denied). A parent's conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. In re A.L.H., 515 S.W.3d 60, 92 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
B. Application
A parent's abusive or violent conduct can produce a home environment that endangers a child's well-being. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) "Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment." Id.; accord S.R., 452 S.W.3d at 361 (quoting J.I.T.P., 99 S.W.3d at 945). In determining whether a parent endangered a child, a fact finder may consider the history of abuse between the parents, even outside the child's presence or before the child was born. In re S.L.W., 529 S.W.3d 601, 612 (Tex. App.—Texarkana 2017, pet. denied) (outside child's presence); In re C.A.B., 289 S.W.3d 874, 886 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (before child was born). Further, parent-on-parent physical abuse need not result in a conviction to be considered evidence of endangerment. In re K.R.G., No. 01-16-00537-CV, 2016 WL 7368082, at *9 (Tex. App.—Houston [1st Dist.] Dec. 15, 2016, pet. denied).
The record contains ample evidence of Father's domestic violence. He pleaded guilty to three such assaults, one of which he committed against the mother of his other children shortly before Kevin was born. Though Father said he did not remember two of the three victims, the convictions were unrebutted.
The evidence concerning Father's domestic violence against Mother was contested. Two witnesses, Ellen and Lisa, testified to at least three assaults Father committed against Mother. Mother sent a text message to Lisa around the time of one of those assaults, instructing her to call 911. Mother and Father, on the other hand, both denied domestic violence between them. A similar contradiction arises when a complainant in a criminal case recants earlier statements of abuse. See, e.g., Navarro v. State, 280 S.W.3d 405, 407 (Tex. App.—Amarillo 2008, no pet.); Hernandez v. State, No. 14-08-00076-CR, 2008 WL 5132366, at *7 (Tex. App.—Houston [14th Dist.] Dec. 9, 2008, no pet.) (mem. op.) (not designated for publication). In that situation, the fact finder is free to believe any evidence, and we must defer to its determinations. As we wrote in Hernandez:
Thus, the jury was presented with the testimony of three eyewitnesses who testified that appellant assaulted Gonzales, and the testimony of an officer who testified that Gonzales told him that appellant hit her in the head causing her pain, and grabbed her neck. The officer also saw visible injuries on Gonzales. The jury was also presented with Gonzales's testimony recanting her earlier statements to the officer and wholly denying that appellant assaulted her, as well as her mother's testimony that she saw no signs of assault on Gonzales. Here, the jury chose to believe the three eyewitnesses and the officer over Gonzales
and her mother. We are mindful that we must defer to the jury's credibility determinations to avoid substituting our judgment for theirs.
2008 WL 5132366, at *7.
Father also pleaded guilty to two drug charges and to being a felon in possession of a weapon. Routinely subjecting a child to the probability he will be left alone because his parent is in jail endangers the child's physical and emotional well-being. Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet denied).
On appeal, Father acknowledges his "troubling" criminal history but contends "one cannot reasonably infer from such that he will engage in the kind of voluntary and deliberate course of conduct contemplated under subsection E." We disagree in two respects. First, Father's criminal history and uncharged domestic violence itself is a voluntary and deliberate course of conduct that can support a finding of endangerment, as courts regularly conclude. E.g., In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); S.L.W., 529 S.W.3d at 612; In re S.C.F., 522 S.W.3d 693, 700 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); S.R., 452 S.W.3d at 361; C.A.B., 289 S.W.3d at 886. Second, a fact finder may draw exactly the inference Father asserts is not reasonable: that his future conduct may be measured by his past conduct. The fact finder may infer from past conduct endangering the child's well-being that similar conduct will recur. S.R.,452 S.W.3d at 366-67.
Considering all the evidence in the light most favorable to the endangerment finding, we conclude the trial court reasonably could have formed a firm belief or conviction that Father engaged in conduct described in section 161.001(b)(1)(E) of the Family Code. Further, in light of the entire record, we conclude the disputed evidence the trial court could not reasonably have credited in favor of its endangerment finding is not so significant that the court could not reasonably have formed a firm belief or conviction that Father engaged in such conduct. Accordingly, the evidence is legally and factually sufficient to support the trial court's finding regarding subsection E. We overrule Father's first and second issues.
III. Best interest
Father's third issue challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of his parental rights is in Kevin's best interest.
A. Legal standards
Termination must be in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(2). Texas courts presume two conditions to be in a child's best interest: (1) prompt, permanent placement in a safe environment, id. § 263.307(a) (West 2014 & Supp. 2016); and (2) remaining with the child's natural parent. In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
Courts may consider the following non-exclusive factors, known as the Holley factors, in its best-interest analysis: the desires of the child; the physical and emotional needs of the child now and in the future; the physical and emotional danger to the child now and in the future; the parental abilities of the persons seeking custody; the programs available to assist those persons seeking custody in promoting the best interest of the child; the plans for the child by the individuals or agency seeking custody; the stability of the home or proposed placement; acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate; and any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list of factors is not exhaustive, and evidence is not required on all the factors to support a finding that termination is in the child's best interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The Family Code also identifies factors that may be considered in evaluating a parent's willingness and ability to provide the child with a safe environment. Tex. Fam. Code Ann. § 263.307(b). Finally, evidence supporting the statutory predicate of termination is relevant to the best-interest analysis. S.R., 452 S.W.3d at 366.
B. Application
1. Kevin
Needs and desires. When a child is too young to express his desires, the fact finder may consider that the child has bonded with the foster family, is well cared for by them, and has spent minimal time with a parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
The evidence is undisputed that Kevin has bonded with Ellen and her three children. She is meeting all his physical and emotional needs, including arranging for appropriate medical treatment for ongoing bronchial problems.
Stability of proposed placement. The record reflects Ellen's home environment is stable. Her house is small, but the Department expressed no concerns about its size. In any event, Ellen testified she was in the process of moving.
The mental health of Ellen and her daughter was disputed at trial. Mother testified Ellen is "mentally disabled" due to "bipolar and severe depression." She speculated Ellen should be but was not appropriately medicated. She also testified Ellen's oldest daughter attempted suicide, an allegation Ellen denied. In this bench trial, the trial court was the sole arbiter when assessing the credibility and demeanor of witnesses. See A.B., 437 S.W.3d at 503; H.R.M., 209 S.W.3d at 109. We may not second-guess the trial court's resolution of a factual dispute by relying on disputed evidence or evidence the fact finder "could easily have rejected as not credible." L.M.I., 119 S.W.3d at 712.
2. Father
Predicate grounds under Family Code section 161 .001(b)(1). Evidence supporting termination under the grounds listed in section 161.001(b)(1) can be considered in support of a finding that termination is in the children's best interest. See In re C.H., 89 S.W.3d at 27 (holding the same evidence may be probative of both section 161.001(b)(1) grounds and best interest). Accordingly, the evidence that Father's conduct endangered Kevin's well-being, discussed above, is relevant to the best-interest analysis.
Acts or omissions and any excuses for them. Father did not satisfy the requirements of his family service plan. He testified he could not complete his individual counseling, parenting classes, or domestic violence counseling due to car trouble, insufficient funds, and other circumstances beyond his control. He admitted, though, that he had had nine months in which to fulfill those obligations and he did not ask the Department or the trial court for financial or scheduling assistance.
Willingness and ability to parent. Father testified he attended most of his scheduled visitations with Kevin. He also said he provided money for Kevin's care by giving it to Mother, who was supposed to give it to Ellen. Ellen testified she never received money from either parent, and Father did not provide any items for Kevin until recently.
Father earned $10 per hour in a job he began shortly before trial. Before that time, he worked sporadically as a laborer. He testified he worked 400 to 500 days in a six-month period, an impossibility the trial court could rightly disregard. "Insufficient funds" prevented Father from paying for his domestic violence counseling, he testified. As a result, the trial court could reasonably infer that Father would have insufficient funds to provide for Kevin's basic needs.
Programs available. Father was ordered to participate in several programs to improve his parenting abilities, including individual counseling, domestic violence counseling, and parenting classes. As discussed, he failed to complete any of them. He was discharged twice from individual counseling due to non-attendance. He did not begin domestic violence counseling or parenting classes.
Father emphasizes on appeal that he is a "non-offending parent," meaning it was not his conduct that resulted in Kevin's removal. That is true, and the trial court could properly consider that fact. We cannot say, though, that Father's status as the "non-offending parent" trumps the evidence supporting the trial court's finding that termination of Father's parental rights is in Kevin's best interest.
3. Conclusion on best interest
Considering all the evidence in the light most favorable to the best-interest finding, we conclude the trial court reasonably could have formed a firm belief or conviction that termination of Father's parental rights was in Kevin's best interest. See J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. Further, in light of the entire record, we conclude the disputed evidence the trial court could not reasonably have credited in favor of its best-interest finding is not so significant that the court could not reasonably have formed a firm belief or conviction that termination of Father's rights was in Kevin's best interest. Accordingly, the evidence is legally and factually sufficient to support the trial court's finding that termination is in Kevin's best interest. We overrule Father's third issue.
CONCLUSION
We affirm the trial court's judgment.
/s/ J. Brett Busby
Justice Panel consists of Justices Busby, Brown, and Jewell.