In re Z.N.M.

Full title: IN THE INTEREST OF Z.N.M., A CHILD

Court: State of Texas in the Fourteenth Court of Appeals

Date published: Jan 11, 2018

NO. 14-17-00650-CV (Tex. App. Jan. 11, 2018)

Opinion

NO. 14-17-00650-CV

01-11-2018

IN THE INTEREST OF Z.N.M., A CHILD

Kevin Jewell Justice

On Appeal from the 311th District Court Harris County, Texas
Trial Court Cause No. 2016-00770

MEMORANDUM OPINION

Appellant R.J.M. ("Father") appeals the trial court's final decree terminating his parental rights and appointing the Department of Family and Protective Services as sole managing conservator of his child Z.N.M. ("Zoe").¹ The trial court terminated Father's parental rights on predicate grounds of endangerment. See Tex. Fam. Code Ann. § 161.001(b)(1)(D) and (E) (West Supp. 2017). The trial court further found that termination of Father's rights was in the child's best interest. In three issues, Father challenges the legal and factual sufficiency of the evidence to support the trial court's findings on each predicate ground, as well as the best-interest finding. Father also challenges the standard we must use to review sufficiency of the evidence. Because we conclude the evidence is legally and factually sufficient to support the trial court's findings, we affirm the judgment.

1 Zoe is a pseudonym. Pursuant to Texas Rule of Appellate Procedure 9.8, we use fictitious names to identify the minors involved in this case.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Pretrial Proceedings

Zoe is the oldest of four children who, at the time of removal by the Department, was six years old and living with her mother ("Mother") and mother's boyfriend, K.J. ("Kirk"). Kirk is the father of Zoe's three half-siblings, ages five, two, and one, at the time of removal.

The Department received a referral that the children might be in danger due to inadequate supervision and accessible drugs and weapons in the home. Mother and Kirk admitted using marijuana while the children were in the home, and that the children were left unsupervised. Both tested positive for cocaine and marijuana. At the time of the removal, Zoe was not living full-time with Mother and Kirk, but spent most of her time with her maternal great-grandmother in Bryan, Texas.

The Department investigator met with Zoe at school. Zoe observed Mother and Kirk engage in domestic violence, and Zoe told the investigator that the police have come to the home when Mother fought with Kirk's sister. Zoe appeared to be a happy, well-developed child, who was dressed in a clean school uniform. Zoe had no visible marks or bruises.

After Zoe's removal, Zoe lived with her great-grandmother and the great- grandmother's adult niece in Bryan, Texas. After the removal of Zoe's siblings, the great-grandmother contacted the Department and asked what she needed to do to keep Zoe. The Department offered to visit the great-grandmother who said she had moved to Houston. The great-grandmother reported that she was living with a family member. When the great-grandmother, family member, and Zoe arrived at the Department office, they were asked whether a representative from the Department could visit the home to investigate whether it was safe for a child. The family member explained that she did not have a key to the home and would need to wait until it was opened for her. By the end of the business day after waiting several hours, the home could still not be accessed, and the family member, great-grandmother, and child had nowhere to go. At this time, it was determined that the great-grandmother did not have a stable residence or financial means of support, and had nowhere else to live. It was also determined that the family member had no financial means of support. There were no other suggested placements for Zoe. Because the great-grandmother did not have a stable residence, and no financial means to support Zoe, the Department asked to be named temporary managing conservator of Zoe. Following a full adversary hearing, the Department was appointed temporary managing conservator.

The Department filed an original petition for termination on January 7, 2016. Father was in jail for a burglary conviction and was served by publication. Father was released from jail in January 2017. Father returned to jail in February 2017, was released again, then returned to jail for burglary of a building in May 2017. In March, Father submitted to one drug test, which was positive for marijuana, cocaine, and methamphetamine. At the end of March 2017, Father was personally served with notice of the termination suit. Father submitted to genetic testing, which confirmed his paternity.

All four children were placed with fictive kin, that is, people known to the family but not related by blood or marriage. Mother voluntarily relinquished her parental rights to all four children. Kirk voluntarily relinquished his parental rights to Zoe's three siblings. The court-appointed Child Advocate filed a report in which she recommended that Zoe remain in her current placement. The recommendation was based on the fact that Zoe's needs were met by the caregiver, and that the four siblings were placed together. Zoe was struggling in school, but the caregiver sought disability services to assist her. The Child Advocate recommended termination of Father's parental rights, which would allow Zoe to be adopted with her siblings.

B. Trial Testimony

At the beginning of trial the court admitted without objection Mother's voluntary affidavit of relinquishment. The trial court took judicial notice that Father was served by publication on January 12, 2017, and personally served on March 31, 2017. An interlocutory order establishing paternity was signed April 26, 2017.

The trial court granted Father's bench warrant request, which allowed Father to testify at trial. Father admitted that he was in jail for thirteen months on two theft charges in 2014 and 2015. He also acknowledged that he was in jail for the majority of 2017, including during trial, when he was incarcerated for a burglary conviction. Father estimated he had been out of jail only four or five months during the pendency of the parental termination proceeding.

In March, he submitted to one drug test, which was positive for cocaine and marijuana. The Department introduced evidence of Father's positive drug test by offering a report from the drug screening lab. Father objected to the report's admissibility on the ground that no expert witness interpreted the report's findings. The court overruled Father's objection. Father denied using illegal drugs.

When Zoe was an infant she lived with Father's mother because Father and Mother were too young to care for her. Father testified that his mother would be a suitable placement for Zoe. However, Father was in jail when the children were removed from Mother and, according to Father, Mother prevented him from seeing Zoe.

Father first received a family service plan on April 26, 2017, approximately three months before trial. Father has been unable to complete any of the tasks required by the service plan due to his incarceration. Father testified that he would complete the service plan if given more time.

The court-appointed Child Advocate testified that Zoe is currently placed with N.S. ("Nancy"), a woman with whom Zoe is familiar, but not a blood relative. At the time of trial Zoe had been living with Nancy for approximately seventeen months. When Zoe was first placed with Nancy she was struggling in school and did not pass the first grade. Nancy worked with Zoe on a "daily, consistent basis." Zoe passed the first grade and won an award for most improved student in her class. The Child Advocate attributes Zoe's improvement to Nancy's intervention and focus on Zoe and her schoolwork.

Zoe's three siblings also live with Nancy, who plans to adopt them. The Child Advocate recommended that Father's parental rights be terminated to allow Zoe to be adopted with her siblings. The Child Advocate testified that Nancy has "gone above and beyond educationally," and has "gone out of her way to become licensed" as a foster parent. Aside from Zoe's first year, and approximately six months in 2016, Zoe has always lived with her siblings. Zoe and her siblings enjoy a "lovely, happy" relationship and Zoe appears to be bonded with her siblings. The Child Advocate testified that it would be detrimental to Zoe if she were separated from her siblings.

On cross-examination, the Child Advocate admitted she had not spoken with Zoe about her paternal grandmother and great-grandmother. At a previous hearing, the paternal grandmother told the Child Advocate she was interested in having Zoe placed with her. Child Advocates received information that the grandmother had a history with the Department, but the Child Advocate had not seen the grandmother's records with the Department. The Child Advocate has seen Zoe with Nancy on at least ten different occasions. The Child Advocate believed that Zoe is thriving in Nancy's home and that, under Nancy's care, Zoe is thriving in school.

The Child Advocates' supervisor testified that she first received information about Father's mother and grandmother four months before trial at a permanency hearing, which was approximately one and a half years after the children were taken into the Department's care. The supervisor also testified that it would be detrimental to Zoe to remove her from her siblings.

The Department's supervising caseworker testified that the Department recommended termination of Father's rights because he is unable to care for Zoe due to Father's continued illegal drug use and incarceration. The caseworker also testified that the paternal grandmother has a case history with the Department in that the Department received a referral several years earlier that the grandmother neglected the children by leaving them home unsupervised. The caseworker did not know exactly how long it had been since the Department investigated the report of the grandmother's neglectful supervision.

The caseworker testified that Zoe and her siblings were removed because they were left unsupervised by Mother. The Department did not have evidence to show that Father knew that Mother left the children alone or that Mother was using illegal drugs.

Father's mother ("Grandmother") testified that Father was fourteen years old when Zoe was born. Zoe lived with Grandmother for her first year, and when Zoe was four years old she lived with Grandmother again for about three months. Grandmother has not seen Zoe in three years. Grandmother testified that Mother and Mother's family prevented her from seeing Zoe. With regard to Grandmother's history with the Department, Grandmother explained that when another of her sons was two years old, approximately eighteen years before trial, his father called the Department and reported neglectful supervision. Grandmother reported to the Department and answered some questions. Grandmother never heard anything else from the Department. Grandmother also said she had a previous "check issue" at Walmart, but paid the check and was not charged with a crime. Grandmother contacted the Department in an attempt to have Zoe placed with her. Grandmother testified that she and Mother were involved in a physical altercation at one time when Mother was trying to pick up Zoe. The police were called as a result of the altercation.

At the conclusion of trial, the trial court found clear and convincing evidence that Father endangered Zoe and that it is in Zoe's best interest to terminate Father's parental rights. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D) & (E); 161.001(b)(2). The trial court appointed the Department sole managing conservator of Zoe and ordered a home study of Grandmother.

II. ANALYSIS

A. Clear and Convincing Burden of Proof

Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Although parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) ("Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.").

Due to the severity and permanency of terminating the parental relationship, Texas requires clear and convincing evidence to support such an order. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "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); In re J.F.C., 96 S.W.3d at 264.

B. Standards of Review

The heightened burden of proof in termination cases results in a heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We review the legal sufficiency of the evidence by considering all 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. In re J.O.A., 283 S.W.3d at 336. We assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence that a reasonable fact finder could have disbelieved. Id.; In re G.M.G., 444 S.W.3d 46, 52 (Tex. App.—Houston [14th Dist.] 2014, no pet.). However, this does not compel us to disregard all evidence that does not support the finding. In re D.R.A., 374 S.W.3d at 531. Because of the heightened standard, we also must be mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. Id.

In reviewing the factual sufficiency of the evidence under the clear-and-convincing burden, we consider and weigh all of the evidence, including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d at 345. "If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. We give due deference to the fact finder's findings and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

In a proceeding to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, the petitioner must establish, by clear and convincing evidence, one or more acts or omissions enumerated under subsection (1) of section 161.001(b) and that termination is in the best interest of the child under subsection (2). Tex. Fam. Code § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

Father begins by urging us to abandon these well-established standards and instead review the evidence considered by the trial court de novo. Father argues that because the parent-child relationship is afforded constitutional protection, Texas appellate courts should review the evidence de novo to determine whether legally sufficient evidence supports the termination findings. Father contends that de novo review accords with the Supreme Court's decisions in Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 685-86, (1989), Bose Corp. v. Consumers Union, 466 U.S. 485, 515-16 (1984), and Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 436 (2001).

However, the Department correctly observes that Father has presented no argument explaining how the standards of review currently applied in parental termination cases harms parental interests in raising their children, how a de novo standard would apply to the present facts, or most important, whether applying de novo review would lead to a different result than traditional legal and factual sufficiency standards. Our sister court recently declined to address this issue because, as here, the parent briefed no argument explaining how de novo review would compel an outcome different from traditional standards in parental termination appeals. In re L.D., No. 01-17-00471-CV, 2017 WL 6374663 at *3, n.1 (Tex. App.—Houston [1st Dist.] Dec. 14, 2017, no pet. h.) (mem. op.). The court noted that the parent did not offer any substantive legal argument to answer the "open, and hardly self-answering question identified in J.F.C. of whether, in appellate review of parental-termination decrees, 'the United States Constitution requires the type of review set forth by the United States Supreme Court' in defamation cases and for punitive damage awards, and if so, whether the standards of review applied in J.F.C. 'would comport with the de novo review required by those decisions.'" Id.

Here, Father similarly failed to brief how application of a deferential standard of review harms him or whether the standard of review applied in J.F.C. would comport with the de novo review applicable to defamation or punitive damage claims as articulated in the Supreme Court decisions Father cites. See In re J.F.C., 96 S.W.3d 256 at 268 & nn. 42-43 (citing Harte-Hanks, 491 U.S. at 685-86; Bose, 466 U.S. at 515-16; and Cooper Indus., 532 U.S. at 436). As in L.D., Father's brief does not address whether the standards currently applied in Texas satisfy the requirement of de novo review in a context that involves application of law to factual determinations committed to the trial court's discretion. We decline to embark on this important constitutional analysis absent more complete briefing on the issues. Accordingly, we apply the traditional standards of review referenced above.

D. Predicate Termination Grounds

In his second issue Father argues the evidence is legally and factually insufficient to support the trial court's finding under subsection E of section 161.001(b)(1). Only one predicate finding under section 161.001 is necessary to support a judgment of termination when the trial court also finds that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

Relevant to this issue, subsection E provides that termination of parental rights is warranted if the fact finder finds by clear and convincing evidence, in addition to the best-interest finding, that the parent has, "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(E). "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).

Under subsection E, the evidence must show the endangerment was the result of the parent's conduct, including acts, omissions, or failures to act. In re S.R., 452 S.W.3d 351, 361 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). 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. A court 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.).

While 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 parents' misconduct alone. Boyd, 727 S.W.2d at 533; 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). Endangerment can also include knowledge that a child's parent abused drugs. In re U.P., 105 S.W.3d 222, 234 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (finding evidence legally sufficient to support endangerment when father knew mother was abused drugs while pregnant, but failed to report mother to the Department or police).

Evidence of criminal conduct, convictions, imprisonment, and their effects on a parent's life and ability to parent, may establish an endangering course of conduct. In re S.M., 389 S.W.3d at 492. Routinely subjecting children to the probability that they will be left alone because their parent is in jail endangers the children's physical and emotional well-being. See Walker v. Tex. Dep't of Human Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). However, mere imprisonment, standing alone, does not constitute conduct that endangers the physical or emotional well-being of the child. Boyd, 727 S.W.2d at 533.

Father argues that no evidence supports the finding that he engaged in conduct endangering Zoe's physical or emotional well-being. We disagree. The record establishes Father's illegal drug use, his harmful and irresponsible choices leading to repeated imprisonment, his lack of parenting until the Department located him, and a child left in the Department's care because Father was in jail. In terminating Father's parental rights, the trial court reasonably credited the evidence of the parenting void in Zoe's life and Father's inability to safeguard her physical and emotional well-being. A lack of all contact with a child without any proffered excuse and no effort to ensure her safety—coupled with incarceration and illegal drug use—is sufficient to support a termination finding based on endangerment. See In re V.V., 349 S.W.3d 548, 553-54 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

Father argues the evidence of his drug use was inadmissible because (1) the drug test is hearsay, and (2) no expert witness interpreted the drug test results. However, Father waived any hearsay objection. The Department introduced drug test results accompanied by a business records affidavit from National Screening Center, the lab that conducted the tests. Father objected to the drug test results as follows:

My objections are, Your Honor, that these records while you have an affidavit authenticating them and overcoming the hearsay objection, anything contained in the records requires that a predicate be laid and that a witness testify about any of the interpretation or findings in those records.

In other words, Judge, the county attorney can't say what these records mean because you need an expert witness to do that, Judge.

Father admitted at trial that the affidavit authenticated the drug test results and overcame the hearsay objection. Therefore, Father has waived a hearsay objection. See Tex. R. App. P. 33.1.

We also disagree with Father's additional contentions that expert testimony is necessary to interpret the drug test results, and that the results are insufficiently probative to support an endangerment finding. Father cites no authority requiring expert testimony to interpret drug test results in parental termination cases. This court has considered this argument before and rejected it. See In re B.F., No. 14-17-00421-CV, 2017 WL 5505821, at *7 (Tex. App.—Houston [14th Dist.] Nov. 16, 2017, no pet. h.) (mem. op.) (rejecting the argument that an expert was necessary to interpret drug testing results); In re C.M.-L.G., No. 14-16-00921-CV, 2017 WL 1719133, at *10 (Tex. App.—Houston [14th Dist.] May 2, 2017, pet. denied) (mem. op.) (same); In re L.G.R., 498 S.W.3d 195, 203 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (holding that, without expert testimony, a court could reasonably rely on drug test results showing a child was born positive for illegal drugs to conclude the mother used drugs while pregnant). Accordingly, we conclude the trial court could have reasonably relied on the drug test results in terminating Father's parental rights without accompanying expert witness testimony.

With regard to his criminal record, Father argues that the Department did not establish a connection between his criminal conduct and danger to Zoe because the record does not show where Zoe was living in 2014 and 2015 when he committed the theft offenses. However, the Family Code 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." In re S.G.F., No. 14-16-00716-CV, 2017 WL 924541 at *4 (Tex. App.—Houston [14th Dist.] Mar. 7, 2017, no pet.) (mem. op.) (citing Boyd, 727 S.W.2d at 533). Criminal offenses in addition to drug activity can constitute endangerment because they significantly harm the parenting relationship. In re A.A.M., 464 S.W.3d 421, 426 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

The record reflects that Father was absent from Zoe's life until he was found by the Department and served with the petition in this parental termination case. At that time, Zoe was six years old. The trial court could have reasonably concluded that Father's repeated incarceration and six-year absence endangered Zoe. The record further reflects that Father engaged in repeated conduct resulting in his imprisonment.

In sum, we conclude the evidence presented with respect to Father's criminal history and frequent imprisonment, combined with his drug use, demonstrates a deliberate course of conduct from which a reasonable trier of fact could have found that Father endangered Zoe's emotional and physical well-being. Considered in the light most favorable to the trial court's finding, the evidence is legally sufficient to support the trial court's determination that termination of Father's parental rights was justified under Family Code section 161.001(b)(1)(E). Further, in view of the entire record, we conclude the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that termination was warranted under section 161.001(b)(1)(E). Accordingly, we conclude the evidence is factually sufficient to support the 161.001(b)(1)(E) finding.

Having concluded the evidence is legally and factually sufficient to support the trial court's finding under subsection E, we need not review the sufficiency of the evidence to support the subsection D finding. See A.V., 113 S.W.3d at 362. We overrule Father's second issue.

E. Best Interest of the Child

In his third issue Father challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination is in the best interest of the child.

The factors the trier of fact may use to determine the best interest of the child include: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons seeking custody; (5) the programs available to assist those persons seeking custody in promoting the best interest of the child; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate; and (9) any excuse for the parents' acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re E.R.W., 528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Tex. Fam. Code Ann. § 263.307(b) (listing factors to consider in evaluating parents' willingness and ability to provide the child with a safe environment).

Courts apply a strong presumption that the best interest of the child is served by keeping the child with her natural parents, and the burden is on the Department to rebut that presumption. In re D.R.A., 374 S.W.3d at 531. Prompt and permanent placement in a safe environment also is presumed to be in the child's best interest. Tex. Fam. Code Ann. § 263.307(a).

Multiple factors support the trial court's finding that termination of Father's rights is in Zoe's best interest.

1. Desires of the child

At the time of trial Zoe was seven years old and had been living with Nancy for a year and a half. The record does not reflect Zoe's desires. When children are too young to express their desires, the fact finder may consider that the children have bonded with the foster family, are well-cared for by them, and have spent minimal time with a parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

Evidence at trial showed that Zoe had bonded with Nancy and was happy living in the same house with her siblings. Zoe had improved in school under Nancy's care, and at least two witnesses testified that it would be detrimental for Zoe to be removed from her siblings who were ready to be adopted by Nancy. In contrast, Zoe did not have a bond with Father. Father explained his failure to have contact with Zoe was due to Mother's action preventing him from seeing her. Father acknowledged, however, that he was incarcerated for more than a year at the time of trial, and was too young to care for Zoe when she was born.

2. Present and future physical and emotional needs of the children

Regarding this factor, we note that the need for permanence is a paramount consideration for the children's present and future physical and emotional needs. See In re D.R.A., 374 S.W.3d at 533. The goal of establishing a stable, permanent home for a child is a compelling government interest. Id.

The record reflects that Father was absent from Zoe's life until approximately six months before trial. He explained his absence by testifying that he was too young to care for an infant when Zoe was born, and that he was incarcerated the majority of the time the termination proceeding was pending. Father has not provided for Zoe's past or present physical and emotional needs. A fact finder may infer from a parent's past inability to meet the child's physical and emotional needs an inability or unwillingness to meet the child's needs in the future. See In re J.D., 436 S.W.3d at 118.

With regard to Zoe's future physical and emotional needs, the record reflects that Zoe will benefit by a stable, permanent home with her siblings and a caregiver who puts her needs first.

3. 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

Father's drug abuse and its attendant unstable lifestyle, plus his continued incarceration and absence from Zoe's life, not only support the trial court's endangerment finding but also support the best-interest determination. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (explaining that parent's history of drug use is relevant to trial court's best-interest finding); see also In re S.R., 452 S.W.3d at 366-67 (the fact finder may infer from past conduct endangering the child's well-being that similar conduct will recur if the child is returned to the parent).

Father argues that this factor weighs against termination because he has a good "support system." Father points out that both his mother and grandmother have suitable housing and the Department has placed children with them before. He further argues that Zoe was not in danger when she was placed with his mother and grandmother. The record reflects, however, that Zoe had not seen her paternal relatives for three years. This factor weighs in favor of termination.

4. Parental abilities of those seeking custody, stability of the home or proposed placement, and plans for the children by the individuals or agency seeking custody

These factors compare the Department's plans and proposed placement of the children with the plans and home of the parent seeking to avoid termination. See In re D.R.A., 374 S.W.3d at 535. Evidence about placement plans and adoption are, of course, relevant to best interest. In re C.H., 89 S.W.3d at 28.

This is perhaps the strongest factor in favor of the best-interest finding. Because Zoe's siblings' parents voluntarily relinquished their parental rights, Zoe's siblings are ready to be adopted by Nancy. Evidence showed that it would be detrimental to Zoe to separate her from her siblings by not allowing her to be adopted with them. Evidence also showed that Zoe and her siblings were happy together and were in a loving environment.

On the other hand, Father is unable to care for Zoe and has proposed his mother and grandmother as potential placements. As stated above, the paternal relatives have not had contact with Zoe for three years. Father's argument that Zoe should be placed with relatives ignores the evidence that Zoe is placed with her siblings, and that Nancy is a person she has known for several years.

Viewing the evidence in the light most favorable to the judgment for our legal-sufficiency analysis and all of the evidence equally for our factual-sufficiency analysis, we conclude that a reasonable fact finder could have formed a firm belief or conviction that termination of Father's rights was in Zoe's best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). We overrule Father's third issue.

III. CONCLUSION

The evidence is legally and factually sufficient to support the predicate termination finding under subsection E. And, based on the evidence presented, the trial court reasonably could have formed a firm belief or conviction that terminating Father's parental rights was in Zoe's best interest so that she could promptly achieve permanency through adoption. See In re M.G.D., 108 S.W.3d 508, 513-14 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

We affirm the decree terminating Father's parental rights and naming the Department managing conservator.

/s/ Kevin Jewell

Justice Panel consists of Justices Christopher, Donovan, and Jewell.