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Affirmed and Memorandum Opinion filed = January 25,=20 2007.

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-06-00137-CV

____________

 

IN THE INTEREST OF = H.G.H., A=20 MINOR CHILD

 

 

On Appeal from the = 300th District Court

Brazoria County, = Texas

Trial Court Cause = No. 30032

 

 

M E M O R=20 A N D U M  O P I N I O N

Appellant,=20 Dwight Holmes, appeals from the trial court=3Ds judgment=20 terminating his parental rights to his daughter H.G.H. and = appointing=20 Brazoria County Children=3Ds=20 Protective Services (ACPS@) sole=20 managing conservator of H.G.H.  In five issues, appellant = challenges=20 the legal and factual sufficiency of the evidence underlying the = findings=20 in the termination order, and the trial court=3Ds decision=20 to appoint CPS managing conservator of H.G.H., rather than the=20 child=3Ds paternal=20 grandmother.  We affirm.

Factual=20 and Procedural Background

Appellant=20 is the father of H.G.H, a female child born in February of = 2004.  At=20 the time of H.G.H.=3Ds birth,=20 appellant was incarcerated in Brazoria County for possession of a=20 firearm.  During the first six months of her life, H.G.H. = resided=20 with her mother, Angelia Gaston, and her four year-old sister,=20 A.G.H.  H.G.H. is the youngest of Gaston=3Ds four=20 children.  Gaston has an extensive history with CPS, dating = back to=20 2001 and including allegations of drug use, mental instability, = and=20 neglectful supervision.  Gaston=3Ds children=20 were removed from her custody on six prior occasions, and=20 Gaston=3Ds parental=20 rights to her two oldest children were terminated prior to the = birth of=20 H.G.H.

On April=20 6, 2004, CPS received a referral alleging Gaston had taken Xanax = and=20 fallen asleep on the couch in her home, leaving H.G.H. and A.G.H.=20 unsupervised.  CPS caseworker Jennifer Gallion contacted = Gaston via=20 telephone on April 12.  Gaston stated she was not willing to=20 participate in family-based services; however, she was willing to = meet=20 with Gallion.  During April through July of 2004, Gallion = visited=20 Gaston=3Ds=20 residence on at least seven occasions.  Some of the visits = were=20 scheduled, and some were unannounced.  H.G.H. was always = present when=20 Gallion visited Gaston=3Ds home.=20 Gallion later testified that Gaston=3Ds home was=20 always clean when she visited, and H.G.H. was not in immediate=20 danger.  Gallion saw no indication appellant was parenting = H.G.H., or=20 that H.G.H. was living with appellant.

Gallion=20 made four visits to Gaston=3Ds=20 residence during May and June of 2004.  Gaston verbally = agreed to=20 participate in limited family-based services, including drug and = alcohol=20 assessment, in-home training, and monitoring of her prescription=20 medication for bipolar disorder.  However, Gaston failed to=20 participate in voluntary services.  During late May,=20 Gaston=3Ds third=20 child, A.G.H., became the subject of a custody dispute between = Gaston and=20 A.G.H.=3Ds father,=20 Phillip Harris.  Gaston became increasingly frustrated with = CPS and,=20 during an in-home visit on June 10, Gaston told Gallion that she = was going=20 to stop taking her bipolar medication because CPS was involved in = her=20 life.  Gallion returned to Gaston=3Ds=20 residence on June 16 and found A.G.H. unsupervised in the = courtyard of the=20 apartment complex.  When Gaston refused to discuss = A.G.H.=3Ds lack of=20 supervision, Gallion initiated a formal CPS investigation. =20

On July 7,=20 2004, A.G.H.=3Ds father=20 was granted temporary custody of A.G.H.  H.G.H. continued to = reside=20 with Gaston.  Gallion visited Gaston=3Ds=20 residence three times during the month of July.  On July 19, = Gaston=20 signed a written agreement to participate in family = services.  After=20 a subsequent visit by Gallion on July 29, Gaston severed all = contact with=20 Gallion.  CPS staffed the case for non-emergency removal of=20 H.G.H.  On August 9, 2004, Gallion executed an affidavit = describing=20 her contacts with Gaston.  In her affidavit, Gallion = testified she=20 made contact with Gaston on ten occasions, and Gaston was hostile = and=20 uncooperative on eight of those ten occasions.  Gallion = testified=20 Gaston exhibited mood swings, mental instability, and = inappropriate=20 behavior.  Gallion also described Gaston=3Ds history=20 with CPS and the fact that A.G.H. had been left unsupervised in = the=20 courtyard of the apartment complex.  Gallion recommended = H.G.H. be=20 placed in protective custody based on Gaston=3Ds=20 unwillingness to cooperate with CPS and conduct which continued to = place=20 H.G.H. at substantial risk of harm.

On August=20 10, 2004, Texas Department of Family & Protective Services=20 (ADFPS@) filed=20 its original petition for protection of a child, conservatorship, = and=20 termination of the parental rights of appellant and Gaston to = H.G.H. =20 On August 12, Gallion spoke to appellant for the first time.  = Although appellant had been released from jail on or about April = 1, 2004,=20 Gallion had been told on numerous occasions that appellant was = still=20 incarcerated.  When Gallion spoke to appellant on August 12, = she=20 assumed appellant had just been released.[1]=20 During their conversation on August 12, appellant told Gallion he = did not=20 know where H.G.H. was, and he was concerned she had been given = away. =20 Appellant provided his contact information, consisting of his=20 mother=3Ds address=20 in Angleton and a Houston telephone number.  On August 19, = appellant=20 called Gallion and stated that Gaston had left H.G.H. and all of = her=20 possessions with appellant. 

On August=20 24, 2004, the trial court issued temporary orders appointing CPS = temporary=20 managing conservator of H.G.H.  The trial court ordered = appellant to=20 (1) submit to a psychological evaluation, (2) successfully = complete=20 parenting classes, (3) successfully complete counseling, (4) = submit to=20 drug and alcohol abuse assessment, (5) remain drug and alcohol = free during=20 the pendency of the termination suit, (6) maintain a safe and = stable home=20 environment, (7) comply with the terms of any service plan filed = during=20 the pendency of the termination suit, and (8) pay child support in = the=20 amount of one hundred dollars per month. 

During=20 that same month, August of 2004, appellant committed burglary in = Harris=20 County.  Appellant was incarcerated on January 3, 2005.  = He=20 plead guilty to burglary of a habitation and remained incarcerated = throughout the underlying termination suit and submission of this = case on=20 appeal.  Prior to his incarceration, appellant submitted to a = psychological evaluation, but failed to complete any of the other=20 court-ordered services.  Appellant has an extensive criminal = history=20 dating back to 1996 and including arrests for possession of a = controlled=20 substance (1996), possession of marijuana (2003), possession of a = firearm=20 (2003), evading arrest (2004), and burglary (2005). =

During=20 late 2004, H.G.H.=3Ds paternal=20 grandmother, Sherrill Mullins, became involved in the termination=20 proceeding.  Prior to August of 2004, Mullins had no = relationship=20 with H.G.H.  Mullins later testified she had not bonded with = H.G.H.=20 because she did not know if appellant was H.G.H.=3Ds=20 biological father.  In October of 2004, after CPS had been = appointed=20 temporary managing conservator, Mullins attended a family group = conference=20 and requested a home study.  CPS subsequently evaluated=20 Mullins=3D = life=20 circumstances and ability to care for H.G.H.  On January 25, = 2005,=20 CPS filed a Kinship Caregiver Home Assessment report recommending = H.G.H.=20 not be placed with Mullins due to concerns over = Mullins=3D = physical=20 health and financial difficulties.  In June of 2005, DNA = testing=20 confirmed appellant is the biological father of H.G.H.  On = July 26,=20 2005, Mullins intervened in the termination suit and petitioned = the court=20 to be named managing conservator of H.G.H. 

The=20 termination suit was tried without a jury on January 30, = 2006.  CPS=20 caseworkers Jennifer Gallion, Elizabeth Shreeves, and Carolyn = Davis=20 testified on behalf of DFPS.  Gallion testified about her = increasing=20 concerns over Gaston=3Ds=20 behavior, and appellant=3Ds lack of=20 involvement with H.G.H. during the months prior to August of = 2004. =20 Shreeves testified appellant visited H.G.H. four times after CPS = was=20 appointed temporary managing conservator, and appellant failed to = pay=20 child support or complete his court-ordered family services.  = Davis=20 testified that during her involvement with H.G.H.=3Ds case,=20 appellant had no contact with H.G.H. and failed to complete any of = his=20 court-ordered services. 

Appellant=20 testified he did not want custody of H.G.H. after being released = from=20 jail; rather, he wanted Sherrill Mullins to have custody of the=20 child.  Mullins gave testimony regarding her involvement with = H.G.H.=20 and her desire to be appointed managing conservator. =20 H.G.H.=3Ds foster=20 mother testified H.G.H. had bonded with her foster family and is=20 developing normally in her current environment.  Angelia = Gaston did=20 not appear in person, but did appear by and through her legal = counsel.=20

On=20 February 6, 2006, the trial court signed an order terminating the = parental=20 rights of appellant and Gaston to H.G.H. and appointing CPS sole = managing=20 conservator of H.G.H.  The trial court found by clear and = convincing=20 evidence that appellant endangered the physical or emotional = well-being of=20 H.G.H., and termination of appellant=3Ds parental=20 rights was in H.G.H.=3Ds best=20 interest.  See Tex.=20 Fam. Code Ann. ' = 161.001(1)(D)B(E),(2)=20 (Vernon 2002).

Termination=20 of Appellant=3Ds=20 Parental Rights to H.G.H.

In his=20 first and second points of error, appellant argues the evidence is = legally=20 and factually insufficient to establish by clear and convincing = evidence=20 that he (1) knowingly placed or knowingly allowed H.G.H. to remain = in=20 conditions or surroundings which endangered her physical or = emotional=20 well-being; or (2) engaged in conduct or knowingly placed H.G.H. = with=20 persons who engaged in conduct which endangered her physical or = emotional=20 well-being.  In his third point of error, appellant contends = the=20 evidence is legally and factually insufficient to establish by = clear and=20 convincing evidence that termination of H.G.H.=3Ds=20 relationship with appellant is in her best interest.

I.=20 Standard of Review

The burden=20 of proof in parental termination cases is by clear and convincing=20 evidence.  See Tex.=20 Fam. Code Ann. ' = 161.001;=20 In re J.F.C., 96 S.W.3d 256, 265B66 (Tex.=20 2002).  AClear and=20 convincing evidence@ = means the=20 measure or degree of proof that will produce in the mind of the = trier of=20 fact a firm belief or conviction as to the truth of the = allegations sought=20 to be established. Tex. = Fam. Code=20 Ann. ' = 101.007=20 (Vernon 2002).

When=20 reviewing the legal sufficiency of the evidence under this = standard, we=20 look at all the evidence in the light most favorable to the = finding=20 Ato=20 determine whether a reasonable trier of fact could have formed a = firm=20 belief or conviction that its finding was true.@ =20 In re J.F.C., 96 S.W.3d at 266.  We must assume the = factfinder=20 resolved disputed evidence in favor of its finding if a reasonable = factfinder could do so.  Id.  We must disregard = all=20 evidence that a reasonable factfinder could have disbelieved or = found to=20 be incredible.  Id.  However, because of the = heightened=20 standard, we must also be mindful of any undisputed evidence = contrary to=20 the finding and consider that evidence in our analysis.  = See=20 id.  (ADisregarding=20 undisputed facts that do not support the finding could skew the = analysis=20 of whether there is clear and convincing evidence.@). =20 If, after conducting our review, we determine that a reasonable = factfinder=20 could not form a firm belief or conviction that the allegations = were true,=20 then we must conclude the evidence is legally insufficient. =20 Id.

When=20 reviewing a factual sufficiency challenge, the analysis is = slightly=20 different because we must consider all the evidence equally, both = disputed=20 and undisputed.  Id.  The court of appeals should = consider whether the disputed evidence is such that a reasonable=20 factfinder could not have resolved the disputed evidence in favor = of the=20 finding.  Id.  If, in light of the entire record, = the=20 disputed evidence that a reasonable factfinder could not have = credited in=20 favor of the finding is so significant that a factfinder could not = reasonably have formed a firm belief or conviction, then the = evidence is=20 factually insufficient.   Id.

II.=20 Discussion

In Texas,=20 to terminate a parent-child relationship, a trial court must find = by clear=20 and convincing evidence that the parent engaged in one of the = grounds for=20 termination listed in section 161.001(1) of the Texas Family Code, = and=20 that termination is in the best interest of the child.  Tex. Fam. Code Ann. = ' = 161.001(1)B(2); =20 In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

In this=20 case, the trial court found two grounds supporting termination = under=20 section 161.001(1).  First, it found appellant knowingly = placed or=20 knowingly allowed H.G.H. to remain in conditions or surroundings = which=20 endangered her physical or emotional well-being; and second, it = found=20 appellant engaged in conduct or knowingly placed H.G.H. with = persons who=20 engaged in conduct which endangered her physical or emotional = well-being.=20  See Tex. = Fam. Code=20 Ann. ' = 161.001(1)(D)B(E). =20 The court also found termination was in the best interest of the=20 child.  Id. ' = 161.001(2). 

A.=20 Child=3Ds Best=20 Interest

In his=20 third issue, appellant asserts there is legally and factually = insufficient=20 evidence to support the trial court=3Ds finding=20 that termination of appellant=3Ds parental=20 rights is in the best interest of H.G.H.  The Texas Supreme = Court has=20 always recognized the strong presumption that the best interest of = a minor=20 is usually served by keeping custody in the natural parents.  = Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. = 1976). =20 The presumption is based upon a logical belief that the ties of = the=20 natural relationship of the parent and child ordinarily furnish = strong=20 assurance of genuine efforts on the part of the custodians to = provide the=20 child with the best care and opportunities possible. =20 Id.  The natural right which exists between parents = and their=20 children is one of constitutional dimensions.  Id.=20  In=20 order to rebut this presumption, there must be clear and = convincing=20 evidence of the natural parent=3Ds present=20 unfitness.  In re U.P., 105 S.W.3d 222, 230 (Tex.=20 App.CHouston=20 [14th Dist.] 2003, pet denied).

The Texas=20 Supreme Court has considered the following factors in determining = whether=20 the best interest of a child is served by keeping the child with = its=20 natural parent: (1) the desires of the child; (2) the present and = future=20 physical and emotional needs of the child; (3) the present and = future=20 physical and emotional danger to the child; (4); the parental = abilities of=20 the person seeking custody; (5) the programs available to assist = those=20 persons seeking custody in promoting the best interest of the = child; (6)=20 plans for the child by the individuals or agencies seeking = custody; (7)=20 the stability of the home or proposed placement; (8) acts or = omissions of=20 the parent that indicate the existing parent-child relationship is = not=20 appropriate; and (9) any excuse for the parent=3Ds acts or=20 omissions.  Holley v. Adams, 544 S.W.2d 367, 372 (Tex. = 1976).  This list is not exhaustive, nor is evidence required = on all=20 nine factors for the court=3Ds=20 finding.  Id.

With these=20 factors in mind, we review the evidence regarding = H.G.H.=3Ds best=20 interest.  H.G.H. is too young to express her desires.  = However,=20 H.G.H. has bonded with her foster parents and eight year-old = foster=20 sister, and expresses a great deal of affection toward them.  = At the=20 time of trial, H.G.H. had resided with her foster family for seven = months.  Her foster mother testified H.G.H. is on track=20 developmentally, learning to speak and engaging in educational and = social=20 activities appropriate for a child her age.  = H.G.H.=3Ds foster=20 mother also testified that she and her husband have a stable home, = love=20 H.G.H., and wish to adopt her.  See In re C.H., = 89=20 S.W.3d 17, 28 (Tex. 2002) (holding evidence about placement plans = and=20 adoption are relevant to the best interest).

Appellant=3Ds life=20 choices have left him unable to provide a safe and stable home for = H.G.H.  The undisputed evidence establishes not only that = appellant=20 is unable to care for H.G.H., but that he has exhibited a pattern = of=20 conduct inconsistent with the very idea of child-rearing.  = See=20 id. (finding termination in the best interest of the child = where=20 father failed to provide emotional or financial support and had an = extensive criminal history which continued after child=3Ds=20 birth).  Appellant has been incarcerated during the majority = of=20 H.G.H.=3Ds life for=20 crimes committed both before and after her birth.  His = offenses=20 include possession of drugs, possession of a firearm, and, most = recently,=20 burglary.  Appellant=3Ds pattern=20 of criminal conduct makes it likely that he will face = incarceration again=20 in the future.  See In re S.M.L., 171 S.W.3d 472, 480 = (Tex.=20 App.CHouston=20 [14th Dist.] 2005, no pet.).  Appellant has admittedly failed = to=20 maintain a stable home environment during the time when he was not = incarcerated.  CPS caseworkers had difficulty contacting him, = and he=20 gave conflicting testimony at trial regarding the location of his=20 residence.   Appellant further failed to complete the = services=20 ordered by the trial court, and failed to pay court-ordered child=20 support. 

Appellant=3Ds excuses=20 for his behavior are unpersuasive.  Rather than taking = responsibility=20 for the burglary to which he pleaded guilty, appellant denies = having any=20 knowledge of the crime.  Appellant also denies having = knowledge of=20 the trial court=3Ds order to=20 pay child support, even though he was present when the court = issued its=20 order.  Regarding his failure to complete court-ordered = services,=20 appellant argues he could not have completed the services because = he was=20 in jail.  Appellant was ordered to perform services in = temporary=20 orders issued by the trial court on August 24, 2004.  = Appellant was=20 incarcerated on January 3, 2005.  Elizabeth Shreeves, the CPS = caseworker assigned to H.G.H. from September 2004 to July 2005, = testified=20 it was Avery=20 possible@ = for=20 appellant to have gotten more involved with the services prior to = his=20 incarceration.  Shreeves further testified she spoke to = appellant=20 during November of 2004, and appellant stated he wanted to wait = until he=20 had stable employment before scheduling his services.  = Additionally,=20 appellant made no effort to continue his services while=20 incarcerated.

Appellant=20 has no permanent plan for H.G.H.  Appellant testified he does = not=20 want custody of H.G.H. presently or after his release from = jail. =20 Rather, he wants his mother, Sherrill Mullins, to care for the=20 child.  In his brief, appellant argues at length that he can = meet the=20 physical and emotional needs of H.G.H. by having the child placed = with=20 Mullins.  However, a home study conducted by CPS recommended = against=20 placement with Mullins due to her physical health and financial=20 status.  The record also indicates Mullins=3D = interest=20 in H.G.H. has been inconsistent over time.  Further, Mullins=20 testified she has not bonded with H.G.H. and visited the child = only one=20 time during the six months preceding the trial. 

After=20 reviewing the evidence, we conclude that the trial = court=3Ds=20 determination that terminating appellant=3Ds parental=20 rights is in H.G.H.=3Ds best=20 interest is supported by clear and convincing evidence that is = legally and=20 factually sufficient.  We overrule appellant=3Ds third=20 point of error. 

B.=20 Dangerous Conduct Under Section 161.001(1)(E)

In his=20 second issue, appellant argues the evidence is legally and = factually=20 insufficient to support the trial court=3Ds finding=20 that appellant engaged in conduct or knowingly placed H.G.H. with = persons=20 who engaged in conduct which endangered her physical or emotional=20 well-being. See Tex. Fam.=20 Code Ann. ' = 161.001(1)(E).

Under=20 subsection (E), the relevant inquiry is whether evidence exists = that the=20 endangerment of the child=3Ds physical=20 or emotional well-being was the result of the parent=3Ds conduct,=20 including acts or omissions.  In re J.T.G., 121 S.W.3d = 117,=20 125 (Tex. App.CFort Worth=20 2003, no pet.).  To constitute endangerment, the parental = conduct=20 need not be directed at the child specifically, and it need not = have=20 caused an actual injury to the child.  Tex. Dept. Human=20 Serv=3Ds v.=20 Boyd, = 727=20 S.W.2d 531, 533 (Tex. 1987).  Rather, Aendanger@ = means to=20 expose to loss or injury; to jeopardize.  Id. =20 Imprisonment, standing alone, will not constitute = endangerment. =20 Id.  However, if the evidence, including = imprisonment,=20 shows a course of conduct which has the effect of endangering the = physical=20 or emotional well-being of the child, a finding under section=20 161.001(1)(E) is supportable.  Id. at 534; see also = In re=20 D.T., 34 S.W.3d 625, 637 (Tex. App.CFort Worth=20 2000, pet. denied) (holding that leaving child in foster care = while=20 jumping bail, writing bad checks, and being incarcerated was = legally=20 sufficient to establish endangering course of conduct).  = Endangerment=20 may include parental conduct both before and after the = child=3Ds=20 birth.  In re S.F., 32 S.W.3d 318, 322 (Tex. = App.CSan=20 Antonio 2000, no pet.) (holding criminal behavior before = child=3Ds birth,=20 coupled with misconduct during imprisonment, was sufficient to = establish a=20 course of conduct endangering the child); In re M.D.S., 1 = S.W.3d=20 190, 198B99 (Tex.=20 App.CAmarillo=20 1999, no pet.) (holding sentences for burglary and sex with a = minor,=20 combined with prior convictions of marijuana possession, = established=20 endangering course of conduct).

Here, the=20 record contains evidence appellant engaged in a course of criminal = conduct  rendering him unable to provide for = H.G.H.=3Ds basic=20 needs, and causing him to be absent during the majority of her = life. =20 The evidence also shows that during the time when appellant was = not=20 incarcerated, he failed to maintain a stable home or provide for=20 H.G.H.=3Ds support,=20 even when ordered to do so by the trial court. =20

Appellant=20 was released from jail and met his daughter for the first time on = or about=20 April 1, 2004.  He was not incarcerated again until after CPS = was=20 appointed temporary managing conservator of H.G.H. on August 24,=20 2004.  During April through August of 2004, appellant failed = to=20 establish a stable home and did little to provide for = H.G.H.=3Ds=20 support.  Appellant gave = conflicting=20 testimony at trial  regarding the location of his residence = after his=20 release from jail.  Appellant testified he lived  with = JoAnn=20 Conley, the mother of his first child, and then moved to = Houston. =20 Appellant later testified he did not live with Conley, but only = visited=20 her while establishing a residence in Houston.  Appellant = also=20 testified he lived in his girlfriend=3Ds apartment in = Houston while=20 working in Freeport, but the telephone line at his = girlfriend=3Ds residence did not = have an=20 answering machine or caller I.D.  Jennifer Gallion testified = that=20 when she spoke to appellant on August 12, he provided contact = information=20 consisting of a Houston telephone number and his = mother=3Ds address in = Angleton.=20

Appellant also = testified=20 H.G.H.=20 resided with him Aoff and=20 on@ = after his=20 release from jail for the Amajority=20 of the time@ = until CPS=20 was appointed temporary managing conservator.  However, on=20 cross-examination, appellant testified he could not remember the = exact=20 date or month when he became H.G.H.=3Ds primary=20 caregiver.  Gallion testified she made = numerous=20 visits to Gaston=3Ds residence = during May=20 to August of 2004 and saw no indication = appellant=20 was parenting HGH, or that HGH was living with appellant. =20 Further,=20 appellant called CPS on August 19, 2004 and stated Gaston had left = H.G.H.=20 and all of her possessions with him.  The statements made by=20 appellant on August 19 contradict his testimony that he had been=20 H.G.H.=3Ds primary=20 caregiver during the preceding months.

In its=20 temporary orders of August 24, 2004, the trial court appointed CPS = temporary managing conservator of H.G.H. and informed appellant = that in=20 order to avoid the termination of his parental rights he was = required to=20 perform each of the following services: (1) submit to a = psychological=20 evaluation, (2) successfully complete parenting classes, (3) = successfully=20 complete counseling,(4) submit to drug and alcohol abuse = assessment, (5)=20 remain drug and alcohol free during the pendency of the = termination suit,=20 (6) maintain a safe and stable home environment, (7) comply with = the terms=20 of any service plan filed during the pendency of the termination = suit, and=20 (8) pay child support in the amount of one hundred dollars per=20 month.

Appellant=20 submitted to a psychological evaluation, but failed to complete, = or even=20 initiate, any of the remaining court-ordered services prior to his = incarceration on January 3, 2005.  DFPS argues, and we agree, = that=20 appellant is primarily interested in shirking his parental duties = by=20 having his mother care for his child.  Appellant contacted = CPS during=20 November of 2004 to inquire about his mother=3Ds home=20 study,[2]=20 yet he failed to take the court-ordered actions necessary for the = care of=20 his daughter and the preservation of  his parental = rights. =20 Appellant offers numerous excuses for his failure to complete the=20 court-ordered services. However, it is clear from the record that=20 appellant could have completed substantially more, if not all, of = his=20 court-ordered services prior to his current incarceration.[3] =20 The fact that appellant was willing to commit burglary and risk=20 incarceration further demonstrates his lack of concern for the = safety and=20 security of his child.  Appellant visited H.G.H. only four = times=20 after CPS was appointed temporary managing conservator, and has = had no=20 contact with H.G.H. since his incarceration in January 2005.  = Appellant testified at trial that he does not want custody of = H.G.H after=20 his release from prison.  See In re S.M.L., 171 S.W.3d = 472,=20 479B80 (Tex.=20 App.CHouston=20 [14th Dist.] 2005, no pet.) (holding father=3Ds lack of=20 demonstrated concern, repeated incarceration, and shirking of = parental=20 responsibilities supported termination under subsection = (E)).

The record=20 also contains evidence of appellant=3Ds criminal=20 conduct. Appellant was arrested for numerous crimes, both before = and after=20 H.G.H.=3Ds birth,=20 including possession of a controlled substance (1996), possession = of=20 marijuana (2003), possession of a firearm (2003), evading arrest = (2004),=20 and burglary (2005).  In his appellate brief, appellant makes = two=20 arguments pertaining to his criminal = history.

First,=20 appellant argues his arrests for possession of a controlled = substance and=20 possession of marijuana are not evidence of endangering conduct = because=20 they both  occurred prior to the birth of H.G.H., and there = is no=20 evidence he used illegal drugs in H.G.H.=3Ds =20 presence.  Appellant cites In re D.J.J. in support of = his=20 contention that his drug-related conduct did not endanger = H.G.H. =20 See In re D.J.J., 178 S.W.3d 424, 430 (Tex. = App.CFort Worth=20 2005, no pet.) (holding evidence of father=3Ds use of=20 methamphetamines prior to child=3Ds birth=20 was insufficient evidence of endangering conduct).  However, = unlike=20 appellant, the parent in In re D.J.J. was not incarcerated = for the=20 additional offenses of possession of a firearm and burglary.  = See=20 id. at 426; see also In re S.M.L., 171 S.W.3d at = 479=20 (considering parent=3Ds criminal=20 behavior both before and after child=3Ds birth as=20 evidence of a course of conduct endangering the child).=20  Further, the parent in In re D.J.J. was = incarcerated=20 for drug offenses during the entire life of his child, up to and = including=20 the time of trial.  Id.  Appellant, however, was = released=20 from jail when H.G.H. was approximately six weeks old and afforded = an=20 opportunity to improve his life circumstances and provide for his=20 child.  Instead, appellant chose to commit burglary.  = Contrary=20 to appellant=3Ds=20 argument, we do not consider his drug offenses in a vacuum.  = Viewing=20 the record as a whole, we find that appellant=3Ds drug=20 offenses and burglary conviction are evidence of his ongoing = course of=20 criminal conduct, both before and after the birth of H.G.H.  = See=20 Boyd, 727 S.W.2d at 534.

In his=20 second argument, appellant asserts, without citing any authority, = that his=20 criminal activity Ais=20 limited,@ = and the=20 burglary for which he is currently incarcerated is not a violent=20 crime.  Appellant further argues that H.G.H. was not affected = by the=20 burglary because she was not with appellant when he committed the=20 offense.  Appellant committed burglary after the birth of = H.G.H. and=20 during a time when he should have been improving his life=20 circumstances.  Further, we find it impossible to believe = that H.G.H.=20 has not been affected by her father=3Ds conduct=20 which caused them to be separated since January of=20 2005.

Appellant=3Ds repeated=20 incarceration, continuing propensity towards criminal conduct, = failure to=20 support H.G.H., and failure to complete, or make a good-faith = effort to=20 complete, the court-ordered family services constitute a course of = conduct=20 which endangered the physical or emotional well-being of = H.G.H. =20 See id.  Therefore, after reviewing the evidence, we = conclude=20 the trial court=3Ds=20 determination that appellant engaged in conduct or knowingly = placed H.G.H.=20 with persons who engaged in conduct which endangered her physical = or=20 emotional well-being is supported by clear and convincing evidence = that is=20 legally and factually sufficient. Accordingly, = appellant=3Ds second=20 point of error is overruled.

Because=20 appellant=3Ds parental=20 rights can be terminated with a finding of best interest of the = child and=20 either of the two 161.001(1) grounds challenged by appellant, we = need not=20 address appellant=3Ds first=20 point of error.  See In re U.P., 105 S.W.3d at 236; = In re=20 J.T.G., 121 S.W.3d at 127B28.

Appointment=20 of CPS as Sole Managing Conservator=20 of H.G.H.

In his=20 fourth and fifth issues, appellant argues there is insufficient = evidence=20 to support the trial court=3Ds finding=20 that appointment of CPS, rather than Sherrill Mullins,[4]=20 as sole managing conservator of H.G.H. is in the best interest of = the=20 child.  Section 161.207 of the Family Code provides that = A[i]f the=20 court terminates the parent-child relationship with respect to = both=20 parents or the only living parent, the court shall appoint a = suitable,=20 competent adult, the Department of Protective and Regulatory = Services, a=20 licensed child-placing agency, or an authorized agency as managing = conservator of the child.@ =20 Tex. Fam. Code = Ann.=20 ' = 161.207(a) (Vernon 2002).  The best interest of the child is = the=20 primary consideration in determining issues of = conservatorship. =20 Tex. Fam. Code = Ann.=20 ' = 153.002=20 (Vernon 2002); see also In re J.R.P., 55 S.W.3d 147, 151-52 = (Tex.=20 App.CCorpus=20 Christi 2001, pet. denied) (holding appointment of Department of=20 Protective and Regulatory Services as managing conservator of = child,=20 rather than biological grandfather, was in child=3Ds best=20 interest).  We give wide latitude to a trial = court=3Ds decision=20 on custody, control, possession, and visitation matters. =20 Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). We = will=20 reverse the trial court=3Ds order=20 only if it appears from the record as a whole that the trial court = abused=20 its discretion.  Id.  A trial court abuses its = discretion=20 when it acts arbitrarily or unreasonably, without reference to any = guiding=20 rules or principles.  Owens-Corning Fiberglass Corp. v.=20 Malone, 972 S.W.2d 35, 43 (Tex. 1998).

On July=20 26, 2005, Mullins intervened in the termination suit requesting=20 appointment as managing conservator of H.G.H.  The trial = court=20 subsequently terminated the parental rights of both of = H.G.H.=3Ds natural=20 parents and appointed CPS as her sole managing conservator. =20 Appellant contends the trial court erred in denying = Mullins=3D = petition=20 because Mullins has a safe and stable home; Mullins is gainfully = employed;=20 and it is in H.G.H.=3Ds best=20 interest to maintain a connection with her biological = family.  DFPS=20 argues H.G.H=3Ds best=20 interests are served by remaining with her foster family because = Mullins=20 failed to demonstrate a consistent interest in H.G.H. and, by the = time of=20 trial, had not bonded with the child.  DFPS also points to = the=20 testimony of H.G.H.=3Ds foster=20 mother as evidence that H.G.H. resides in a safe and stable home = and has=20 bonded with a loving foster family who seeks to adopt her. =20

At trial,=20 Mullins testified she had not bonded with H.G.H.  Mullins = further=20 testified she had limited contact with H.G.H. and did not want to = bond=20 with her before DNA testing confirmed appellant was = H.G.H.=3Ds father=20 in June of 2005.  Mullins visited H.G.H. two to three times = after=20 August of 2004, and only once during the six months preceding = trial. =20 CPS caseworker Carolyn Davis testified Mullins visited H.G.H. on = December=20 29, 2005 but ended her visit early because H.G.H. did not = recognize=20 Mullins and started to cry.  Davis testified H.G.H. should = remain=20 with her adoptive family with whom she has bonded.  Sherri = Simmons, a=20 CASA program director in Brazoria County, testified CASA did not = recommend=20 placement with Mullins because Mullins=3D = home=20 study was not approved, and Mullins has had limited contact with = H.G.H.=20

H.G.H.=3Ds foster=20 parents are gainfully employed and maintain a stable home=20 environment.  They  involve their children in a variety = of=20 activities and place a high degree of importance on = education. =20 H.G.H.=3Ds foster=20 mother testified she took two months off from work to bond = with =20 H.G.H. when CPS placed H.G.H. with her family.  H.G.H. is = developing=20 normally and has bonded with her foster parents and eight year-old = foster=20 sister.  H.G.H.=3Ds foster=20 mother testified she and her husband love H.G.H. and seek to adopt = her. 

Based on=20 our review of the record, we hold that the trial court did not = abuse its=20 discretion in appointing CPS sole managing conservator of = H.G.H. =20 Accordingly, appellant=3Ds fourth=20 and fifth points of error are overruled. 

 

Having=20 considered appellants points of error necessary to final = disposition of=20 this appeal, we affirm the judgment of the trial court.

 

 

 

 

 

 

/s/     =20 John S. Anderson

Justice

 

 

 

 

Judgment=20 rendered and Memorandum Opinion filed January 25, 2007.

Panel=20 consists of Justices Yates, Anderson, and Hudson.


[1]  At trial, Gallion testified she = had seen=20 appellant prior to August 12, 2004 but did not know who he = was. =20 Gallion testified: ACome to find out, I had actually seen = [appellant]=20 and did not know it was him at one point in time.  I was = leaving=20 [Gaston=3Ds] apartment, and he was going up to = it.  I=20 found out when I met [appellant] later on, that that [sic] was = actually=20 him.  So I=3Dm not really sure when he was in jail = and when he=20 wasn=3Dt.@

[2]  CPS conducted a = home study to=20 evaluate Sherrill Mullins=3D life circumstances = and=20 ability to care for H.G.H.  

[3]  Five months elapsed between the = time the=20 trial court issued its temporary orders and appellant=3Ds incarceration on January 3, = 2005. =20  CPS=20 caseworker Elizabeth Shreeves testified she did not know if = appellant=20 could have completed his services prior to his incarceration; = however, he=20 definitely could have gotten more involved.  Shreeves further = testified appellant told her that he was waiting to schedule his = services.=20

[4]  Mullins filed a notice of appeal = in this=20 case; however, her notice of appeal was not timely filed.  = This is an=20 accelerated appeal from a judgment signed February 6, 2006.  = The=20 notice of appeal was due February 27, 2006.  See Tex. R. App. P. = 26.1(b).  Mullins, = however, filed=20 her notice of appeal on March 14, 2006, a date within fifteen days = of the=20 due date for the notice of appeal.  See Verburgt v. = Dorner,=20 959 S.W.2d 615, 617 (Tex. 1997) (holding that a motion for = extension=20 of time is Anecessarily implied@ when the perfecting instrument is filed = within=20 fifteen days of its due date).  Mullins did not file a motion = to=20 extend time to file the notice of appeal.  While an extension = may be=20 implied, Mullins is still obligated to come forward with a = reasonable=20 explanation to support the late filing.  See Miller v. = Greenpark=20 Surgery Center Assocs., Ltd., 974 S.W.2d 805, 808 (Tex.=20 App.CHouston [14th Dist.] 1998, no = pet.). =20 Further, Mullins failed to file an appellate brief.  See = Tex. R. App. P. 38.1,=20 38.8(a).  Therefore, Sherrill Mullins=3D appeal is dismissed for want of = jurisdiction and=20 want of prosecution.  See Tex. R. App. P. = 26.1(b), 38.8(a)(1).

 

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