the 74th District Court McLennan County, Texas Trial Court
Chief Justice Gray, Justice Davis, and Justice Scoggins.
trial court signed an order terminating the parental rights
of M.B., the father of P.B., after a bench
trial. The trial court found that M.B. had
violated Family Code subsections 161.001(b)(1)(D), (E), (N),
and (O) and that termination was in the child's best
interest. In his sole issue, M.B. contends that the evidence
is factually insufficient to establish that terminating his
parental rights was in the child's best interest. We will
proceeding to terminate the parent-child relationship brought
under section 161.001, the Department of Family and
Protective Services must establish by clear and convincing
evidence two elements: (1) one or more acts or omissions
enumerated under subsection (b)(1) of section 161.001, termed
a predicate violation; and (2) that termination is
in the best interest of the child. Tex. Fam. Code Ann. §
161.001(b)(1), (2) (West Supp. 2016); Swate v.
Swate, 72 S.W.3d 763, 766 (Tex. App.-Waco 2002, pet.
denied). The factfinder must find that both elements are
established by clear and convincing evidence, and proof of
one element does not relieve the petitioner of the burden of
proving the other. Holley v. Adams, 544 S.W.2d 367,
370 (Tex. 1976); Swate, 72 S.W.3d at 766.
"Clear and convincing evidence" is defined as
"that measure or degree of proof which 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." In re G.M., 596 S.W.2d 846, 847
factual sufficiency review in a termination case must take
into consideration whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction
about the truth of the matter on which the petitioner bears
the burden of proof. In re C.H., 89 S.W.3d 17, 25
(Tex. 2002). A court of appeals must give due consideration
to evidence that the factfinder could reasonably have found
to be clear and convincing. In re J.F.C. 96 S.W.3d
256, 266 (Tex. 2002).
[T]he inquiry must be "whether the evidence is such that
a factfinder could reasonably form a firm belief or
conviction about the truth of the State's
allegations." A court of appeals should consider whether
disputed evidence is such that a reasonable factfinder could
not have resolved that disputed evidence in favor of its
finding. 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.
Id. (footnotes and citations omitted); see
C.H., 89 S.W.3d at 25.
due deference to the factfinder's findings and must not
substitute our judgment for that of the factfinder. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder
is the sole judge when assessing the credibility and demeanor
of witnesses. Id. at 109; see also In re
S.M.R., No. 10-15-00093-CV, 2016 WL 7321302, at *7 (Tex.
App.-Waco Dec. 14, 2016, pet. denied) (mem. op.) ("The
[factfinder] is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. . .
following evidence was presented at trial: M.B. and B.V.
share a child-P.B. B.V. also had a child from a previous
relationship with T.R.-K.V. M.B. and B.V. cohabited with both
P.B. and K.V. While B.V. worked, M.B. cared for P.B. M.B.
also cared for K.V. when K.V. was not in school. Leigh Ann
Romo, a supervisory investigator with the Department,
testified that K.V. went to his teacher and showed her a
scratch on his finger. Romo testified that when his teacher
asked him how he got the scratch, K.V. said his
"daddy" had "whooped" him. Monica
Morante, an investigator with the
responded to the school with law enforcement after being
notified of K.V.'s injuries. Morante testified that she
interviewed K.V. and observed the extensive bruising to his
body. The photographs of K.V., that were admitted as evidence
at the bench trial, showed linear bruising on his face, back,
buttocks, thighs, and arms, as well as the cut on his finger.
Morante stated that while she attempted to observe K.V.'s
injuries, he reported that they hurt.
further testified that she interviewed M.B. and B.V. about
K.V.'s injuries, and both M.B. and B.V. acknowledged that
M.B. spanked K.V. with a belt and may have caused the
injuries to K.V. Morante testified that the decision was made
at that time to seek to have the children removed from the
home for their safety and to have them placed in foster care.
testified that after questioning by Morante and law
enforcement, B.V. admitted that M.B. was abusive towards her.
B.V. denied, however, that M.B. abused K.V. or P.B. When she
testified, B.V. reiterated that M.B. had physically abused
her. Romo stated that M.B. denied to investigators that he
caused K.V.'s injuries. M.B. claimed that he only
administered a spanking with a belt, although he may have
missed K.V. a few times. M.B. also blamed K.V.'s injuries
on B.V.'s mother.
testified that after the children were removed from the home,
M.B. was arrested shortly thereafter and indicted for
recklessly causing injury to a child. A judgment of
conviction was admitted as evidence and indicated that M.B.
entered a guilty plea to the charge against him and that he
was sentenced to eighteen months' incarceration. M.B. was
not released from custody until after serving his sentence.
determining the best interest of a child, a number of factors
have been considered, including (1) the desires of the child;
(2) the emotional and physical needs of the child now and in
the future; (3) the emotional and physical danger to the
child now and in the future; (4) the parental abilities of
the individuals seeking custody; (5) the programs available
to assist these individuals; (6) the plans for the child by
these individuals; (7) the stability of the home; (8) the
acts or omissions of the parent that may indicate the
existing parent-child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent.
Holley, 544 S.W.2d at 371-72. This list is not
exhaustive, but simply indicates factors that have been or
could be pertinent. Id. at 372. Evidence
establishing one of the predicate acts under §
161.001(b)(1) also may be relevant to determining the best
interest of a child. In re A.M., 495 S.W.3d 573, 581
(Tex. App.- Houston [1st Dist.] 2016, pet. denied) (citing
C.H., 89 S.W.3d at 27-28).
Holley factors focus on the best interest of the
child, not the best interest of the parent. Dupree v.
Tex. Dep't of Protective & Regulatory Servs.,
907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ). The goal
of establishing a stable, permanent home for a child is a
compelling state interest. Id. at 87. The need for
permanence is a paramount consideration for a child's
present and future physical and emotional needs. In re
S.H.A., 728 S.W.2d 73, 92 (Tex. App.-Dallas 1987, writ
ref'd n.r.e.) (en banc).
Desires of the Child
is no evidence in the record of P.B.'s desires. P.B. was
approximately one year old when he was removed from
M.B.'s custody and too young to express his desires at
the time of trial.
The Emotional and Physical Needs of the Child Now and in
The Emotional and Physical Danger to the Child Now and in
argues that he is the appropriate person to see to P.B.'s
emotional and physical needs because he is his father and
loves him. M.B. believes that having P.B. and K.V. placed in
the same foster home is a detriment to P.B.'s emotional
and physical needs and constitutes a danger to him due to
K.V.'s behavioral problems. K.V. has exhibited aggression
towards P.B., and M.B. believes separation would prevent K.V.
from abusing P.B. M.B. further argues that K.V.'s
behavioral problems are keeping P.B. from being adopted. M.B.
contends that returning P.B. to his custody would prevent
P.B. from remaining in foster care until the age of majority.
Finally, M.B. asserts that he has learned his lesson
regarding the use of corporal punishment and will not be a
danger to P.B.
of past misconduct or neglect can be used to measure a
parent's future conduct. See Williams v.
Williams, 150 S.W.3d 436, 451 (Tex. App.-Austin 2004,
pet. denied); Ray v. Burns, 832 S.W.2d 431, 435
(Tex. App.-Waco 1992, no writ) ("Past is often
prologue"); see also In re V.A., No.
13-06-00237-CV, 2007 WL 293023, at *5-6 (Tex. App.- Corpus
Christi Feb. 1, 2007, no pet.) (mem. op.) (considering
parent's past history of unstable housing, unstable
employment, unstable relationships, mental health issues, and
drug and alcohol usage). A parent's history, admissions,
drug abuse, and inability to maintain a lifestyle free from
arrests and incarcerations are relevant to the best-interest
determination. In re D.M., 58 S.W.3d 801, 814 (Tex.
App.-Fort Worth 2001, no pet.). A parent's engaging in
criminal conduct endangers the emotional well-being of a
child because of the parent's resulting incarceration.
See Karl v. Tex. Dep't of Protective & Regulatory
Servs., No. 03-03-00655-CV, 2004 WL 1573162, at *3-4
(Tex. App.-Austin Jul. 15, 2004, no pet.) (mem. op.); see
also In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort
Worth 2004, pet. denied) ("[C]onduct that subjects a
child to a life of uncertainty and instability endangers the
physical and emotional well-being of a child.").
is nothing in the record to indicate that P.B. was the victim
of the type of abuse suffered by K.V. or B.V. "However,
the manner in which a parent treats other children in the
family can be considered in deciding whether that parent
engaged in a course of conduct that endangered the physical
or emotional well-being of a child." In re
H.N.J., No. 10-10-00365-CV, 2011 WL 2937473, at *3 (Tex.
App.-Waco Jul. 13, 2011, no pet.) (mem. op.) (citing
Cervantes-Peterson v. Tex. Dep't of Family and
Protective Servs., 221 S.W.3d 244, 253 (Tex.
App.-Houston [1st Dist.] 2006, no pet.)). A number of courts
of appeals, including this one, have also held that evidence
of a parent's endangering conduct toward other children
or family members is relevant to a determination of whether
the parent engaged in behavior that endangered the child that
is the subject of the suit. Id.; see, e.g., In
re Baby Boy R, 191 S.W.3d 916, 925 (Tex. App.-Dallas
2006, pet. denied) (holding that a parent's guilty plea
of aggravated sexual assault of his stepdaughter was evidence
of conduct endangering to the well-being of his unborn
child); In re W.J.H., 111 S.W.3d 707, 716 (Tex.
App.-Fort Worth 2003, pet. denied) (holding that abusive
conduct toward other children "can be used to support a
finding of endangerment even against a child who was not yet
born"); In re D.L.N., 958 S.W.2d 934, 939 (Tex.
App.-Waco 1997, pet. denied), disapproved of on other
grounds by J.F.C., 96 S.W.3d at 267 n.39 a ...