Affirmed and Memorandum Opinion filed December 23, 2014.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-14-00561-CV


                     IN THE INTEREST OF V.D.A., A CHILD


                       On Appeal from the 315th District Court
                                Harris County, Texas
                         Trial Court Cause No. 2013-04440J

                 MEMORANDUM                              OPINION
       Appellant W.J. (the Father) appeals from the decree terminating his parental
rights to V.D.A. (the Child), raising two issues.1 First, the Father asserts the trial
court deprived him of due process by granting termination on a statutory ground
the Department of Family and Protective Services (the Department) abandoned
before trial. Second, he challenges the sufficiency of the evidence to support
termination. We affirm.

       1
          To protect the identity of the minor, we have not used the names of the Child, parents,
or other family members. See Tex. R. App. P. 9.8.
                                 I. BACKGROUND

      The Child’s mother, A.A. (the Mother), has a history with the Department
going back to at least 1996 when she was a teenage mother in the Department’s
custody. In March 2010, seven of the Mother’s other children were removed from
her home, which was found in “deplorable condition.” The Department initiated
proceedings for the protection of the children. The Child at issue here was born
after the 2010 proceedings were initiated. The Mother tested positive for cocaine
during the pendency of those proceedings, and the Department took the Child into
its care in June 2011. In July 2013, the Mother relinquished her parental rights to
seven of her nine children, and a termination decree was signed. The Department’s
termination proceedings concerning the Child at issue here did not reach timely
disposition and the case was dismissed July 30, 2013. See Tex. Fam. Code §
263.401(a) (requiring dismissal of a suit affecting the parent-child relationship
filed by the Department that requests termination of parental rights or that the
Department be named conservator of the child when trial has not commenced
within the time set out in the statute).

      The Department filed a new suit seeking conservatorship of the Child and
termination of parental rights on August 1, 2013. When this proceeding was filed,
the Father was again named as an alleged father of the Child. Child Advocates, Inc.
was appointed guardian ad litem for the Child. The Father’s service plan was filed
with the court September 25, 2013, before the Father was served with the new suit.
The Father was served with process on November 15, 2013, while he was in jail.
The Father was serving a six-month sentence in the State Jail Division of the Texas
Department of Criminal Justice for tampering with physical evidence. The Father’s
deferred adjudication probation for this offense was revoked after he plead true to
violating the terms of his probation, including testing positive for opiates. On


                                           2
December 9, 2013, the court again approved the Father’s plan and ordered
compliance with its terms. In addition, the court ordered DNA testing performed
while the Father was incarcerated. The Father’s paternity was confirmed in January
2014. On February 5, 2014, the Father filed an answer as “alleged father,”
including a general denial. On March 3, 2014 the court again approved and
adopted the service plan. The record reflects the Father was still incarcerated at
that time; he was confined until April 17, 2014.

       Trial to the court was held June 9, 2014. At trial, two of the Department’s
caseworkers, the Child Advocates representative, the Father, the Father’s sister (the
Aunt), and the foster mother testified. At the conclusion of the trial, the court
granted the Department’s request for termination of the Father’s parental rights. On
June 25, 2014, the trial court signed a final judgment reciting that the Father’s
parental rights were terminated based on findings that termination is in the Child’s
best interest and that the Father committed acts establishing the predicate
termination grounds set out in subsections E and N of Texas Family Code Section
161.001(1).2 Tex. Fam. Code §§ 161.001(1)(E) & (N); 161.001(2). The
Department was appointed sole managing conservator of the Child. The Father
filed a timely notice of appeal.

           II. BURDEN OF PROOF AND STANDARDS OF REVIEW

       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

       2
          The Mother’s parental rights to the Child were also terminated, but she did not attend
trial and has not appealed.


                                               3
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 the termination of parental rights, the
burden of proof is heightened to the clear and convincing evidence standard. See
Tex. Fam. Code § 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 § 101.007; accord In re
J.F.C., 96 S.W.3d at 264. This heightened burden of proof 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.).

      Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section 161.001(1)
of the Family Code; and (2) termination is in the best interest of the child. Tex.
Fam. Code § 161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Only
one predicate finding under section 161.001 is necessary to support a judgment of
termination when there is also a finding that termination is in the child’s best
interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

      In reviewing the legal sufficiency of the evidence in a parental termination
case, we must 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. In re J.O.A., 283 S.W.3d at 344; In re J.F.C.,
96 S.W.3d at 266. 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. In re J.O.A., 283 S.W.3d at


                                           4
344; In re J.F.C., 96 S.W.3d at 266.

      In reviewing termination findings for factual sufficiency of the evidence, 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). The fact
finder is the sole arbiter when assessing the credibility and demeanor of witnesses.
Id. at 109.

                                       III. ANALYSIS

      A. Section 161.001(1)(N)

      In his second issue, the Father asserts the evidence is insufficient to support
termination of his parental rights. The trial court found that the Father committed
acts establishing the predicate termination ground set out in subsection N of Texas
Family Code Section 161.001(1), which provides that a court may order
termination of the parent-child relationship if the court finds by clear and
convincing evidence that the parent has:

      constructively abandoned the child who has been in the permanent or
      temporary managing conservatorship of the Department of Family and
      Protective Services or an authorized agency for not less than six
      months, and:
      (i) the department or authorized agency has made reasonable efforts to
      return the child to the parent;
      (ii) the parent has not regularly visited or maintained significant
      contact with the child; and


                                           5
       (iii) the parent has demonstrated an inability to provide the child with
       a safe environment.
Tex. Fam. Code § 161.001(1)(N).

       It is undisputed that the Child has been in the Department’s conservatorship
for more than six months. We first consider whether the Department has made
reasonable efforts to return the Child to the Father.

       1. Reasonable Efforts to Return the Child

       The Father was incarcerated for six months during these proceedings.
Imprisonment, standing alone, does not constitute constructive abandonment. In re
D.T., 34 S.W.3d 625, 633 (Tex. App.—Fort Worth 2000, pet. denied). Returning a
child to a parent under section 161.001(1)(N)(i) does not necessarily mean that the
child has to be physically delivered to the individual. See In re D.S.A., 113 S.W.3d
567, 573 (Tex. App.—Amarillo 2003, no pet.) (applying the first prong of
subsection N to an incarcerated parent, reasoning that an incarcerated parent may
leave the child with a spouse or relative, and the child could accordingly be
returned from the Department’s custody); see also In re K.J.T.M., No. 06–09–
0104–CV, 2010 WL 1664027, at *3 (Tex. App.—Texarkana, April 27, 2010, no
pet.) (citing the Department’s efforts, “although futile,” to place child with
relatives as supporting finding of reasonable efforts to return child to incarcerated
parent).3

       A family service plan is designed to reunify a parent with a child who has
been removed by the Department. Liu v. Dep’t of Family & Protective Servs., 273


       3
          Some courts have held that the requirement that the Department has made reasonable
efforts to return the child to the parent is inapplicable when the parent is incarcerated. See, e.g.,
In re A.Q.W., 395 S.W.3d 285, 287 (Tex. App.—San Antonio 2013, no pet.); In re D.T., 34
S.W.3d at 633. We have not followed these cases. See, e.g. In re A.S., 261 S.W.3d 76, 90 (Tex.
App.—Houston [14th Dist.] 2008, pet. denied).


                                                 6
S.W.3d 785, 795 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Implementation
of a family service plan by the Department is considered a reasonable effort to
return a child to its parent. In re N.R.T., 338 S.W.3d 667, 674 (Tex. App.—
Amarillo 2011, no pet.); see also In re M.R.J.M., 280 S.W.3d 494, 505 (Tex.
App.—Fort Worth 2009, no pet.) (holding that the State made reasonable efforts to
return the child to the parent under section 161.001(1)(N) when it prepared several
service plans for the parent and made special arrangements for him to attend
parenting classes near his home and to transport him to his psychological
assessment); In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no
pet.) (holding the State showed that it made reasonable efforts to return the child to
the parent when it prepared service plans and made efforts to work with the parent
on the service plans).

      The Department prepared a family plan of service for the Father and filed it
with the court. The court later approved the plan and ordered the Father to comply
with it. The Father’s family service plan required him to:

      Provide proof of sufficient income to support himself and the Child,
      including pay stubs or letters from his employer each month;
      Maintain stable housing for at least six months and provide proof of
      housing to the Department;
      Remain in contact with the Department for the duration of the case,
      including contact at least once a month;
      Attend all court hearings, meetings, and visits related to the case;
      Submit to DNA testing to establish paternity within 14 days of the
      court order;
      Refrain from illegal activity;
      Submit to random drug tests; No-shows will be considered a positive
      result;
      Complete a substance abuse assessment within two months of service;
      and


                                          7
      Complete a psychosocial evaluation within two months of service, and
      follow all recommendations.

      The Department mailed the Father the family service plan in September,
2013, nine months before trial. Meredith Atkinson testified that she had been the
Department’s caseworker for this case from June, 2011 to the end of September,
2013. Although Atkinson acknowledged she had not spoken with the Father in
person, she testified that she had attempted to contact the Father by mail during the
time she worked on the case. Atkinson testified she mailed the plan to the Father at
least twice and went over it with him on the phone. Atkinson testified she made
two additional attempts to contact the Father before she was reassigned to another
position. Before sending the service plan, she spoke to the Father’s grandmother,
and it was Atkinson’s understanding that the Father resided with her. The
grandmother provided the address used to mail the service plan. Atkinson testified
that the family service plan was sent certified mail in September, 2013, before the
Father was sent to the State Jail. The Department provided a signed return receipt
card showing the Father had received a copy of his service plan, although Atkinson
acknowledged that the signature did not appear to be the Father’s. Atkinson also
sent the Father a letter in August, 2013, notifying him he was the alleged father of
the Child and requesting that he contact the Department and arrange to take a DNA
test. She sent a second letter to the grandmother’s home.

      Alina Jones testified that she was the Department’s conservatorship
caseworker for this case from November, 2013 to the time of trial. She testified she
attempted to contact the Father in November, 2013 after the status hearing. She
stated she mailed the Father’s service plan to him at the State Jail facility in
November. Jones testified that she also faxed the service plan to the Father’s court-
appointed attorney in December, 2013. On cross-examination, the Father’s
attorney provided a document requesting a copy of the family service plan much

                                         8
later, on May 13, 2014, and Jones acknowledged she had received the request.
Jones also testified she made telephone calls to the Father after he was released
from jail, and she went over the service plan with the Father on the phone. It was
Jones’s understanding that the Father had received a copy of the plan. Jones
explained that this case was re-filed after the previous case was dismissed. In the
earlier case filed in 2011, the Father was also named as the alleged father of the
Child. In addition, the Father was named as the alleged father of an older sibling.

         Jones also testified the Father has not completed the tasks set out in his
family service plan. Jones testified the Father was unable to meet the service plan
requirement to attend all court hearings, meetings and visitation because he was
incarcerated for six months of the nearly one-year period the case was pending.
The Father was also unable to complete a substance abuse assessment within the
required time period because he was incarcerated. Jones concluded that the
Department’s efforts were reasonable, the requirements set out in the service plan
were reasonable, and the Father could have completed the tasks if he had not been
incarcerated.

         Jones testified that after the Father was released from confinement in April,
2014, she contacted the Aunt, who provided the Father’s telephone number. Jones
called the Father and spoke to him. The Father did not contact her until about two
weeks before the June trial. At that time the Father sought to make arrangements
for a psychosocial evaluation, which he completed shortly before trial. The service
plan, incorporated in the trial court’s order, required the Father to follow all
recommendations made in the psychosocial assessment, which included eight to
ten sessions of individual counseling. These sessions had not begun by the time of
trial.

         Jones testified she contacted the Father on May 6, 2014 to arrange for a


                                           9
urinalysis, as required by the service plan. The Father did not submit to the test,
and informed her after the scheduled date that he had not received the necessary
information. Jones testified she contacted the Father by telephone and instructed
him to go to the National Screening Center for another drug test on May 22, 2014.
The Father submitted to the May 22 drug test, and the results were negative.

      The Father testified at trial and he denied knowing that the Child had been in
the Department’s care since 2011. He also blamed his lack of involvement in these
proceedings on the Department’s failure to contact him because he was
incarcerated for six months during the pendency of this case. The record reflects
that on July 6, 2012, the Father entered a plea of guilty to the offense of attempted
tampering with physical evidence, namely phencyclidine. As part of an agreement
with the State, the Father was placed on deferred adjudication probation for two
years and assessed a $500 fine. The State subsequently moved to adjudicate the
Father’s guilt, alleging he tested positive for opiates and committed other
violations of the terms of his probation. On October 29, 2013, the Father was
sentenced to six months in the State Jail Division of the Texas Department of
Criminal Justice, after pleading true to the allegations in the motion to adjudicate
his guilt. The Father testified he does not even know what phencyclidine is; he
asserted that he was charged with a co-defendant and the drugs belonged to the co-
defendant. The Father testified he was incarcerated on October 21, 2013, and
released from the state jail facility on April 17, 2014. The Father testified that he
preferred to serve the six-month sentence because he wanted to “get it over with”
so he could travel outside the state without violating the terms of his probation.
The Father explained that he wanted to be released from the probation requirement
forbidding travel out of state so he could work as a commercial 18-wheel truck
driver, which had been his employment before he was placed on probation.



                                         10
      The Father denied that the State moved to adjudicate his guilt. On cross-
examination, when confronted with a copy of the State’s motion and the allegation
that he tested positive for opiates, specifically oxycodone/oxymorphone, on July 9,
2013, the Father acknowledged that the allegation was true. He claimed he had a
prescription for the drug and showed it to the probation officer. He also claimed
that when he decided he preferred to serve the six-month sentence, he stopped
performing his probation requirements. The motion to adjudicate also alleged that
the Father used phencyclidine (PCP). The Father admitted that he used PCP, and it
was a violation of the terms of his probation. The Father ultimately admitted that
all of the allegations in the State’s motion were true and he violated the terms of
his probation.

      The Father denied any knowledge about a service plan; he denied receiving
the plan or discussing it with the caseworkers. The Father testified that he had
never spoken with either caseworker about a family service plan. He testified he
had undergone a psychosocial assessment, but he is unaware of other tasks he is
required to perform.

      The trial court resolved this credibility dispute about the Father’s receipt of
the service plan and contact with the caseworkers, and we may not disturb its
determination. There were many inconsistencies in the Father’s testimony. It was
within the trial court’s discretion to determine the weight and credibility of the
Father’s testimony. See In re K.A.S., 131 S.W.3d 215, 229–30 (Tex. App.—Fort
Worth 2004, pet. denied). The factfinder is the sole arbiter when assessing the
credibility and demeanor of witnesses. In re H.R.M., 209 S.W.3d at 108. We are
not to “second-guess the trial court’s resolution of a factual dispute by relying on
evidence that is either disputed, or that the court could easily have rejected as not
credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).


                                         11
      Moreover, this court has held that the evidence was sufficient to support a
finding that the Department made reasonable efforts to return the child to the
parent, even though the father in the earlier case claimed the caseworker did not go
over the plan with him. See In re G.S., No. 14-14-00477-CV, 2014 WL 4699480,
at *10 (Tex. App.—Houston [14th Dist.] Sept. 23, 2014, no. pet.) (mem. op.). In
G.S., the Father signed his service plan almost a year before trial, recitations in the
plan reflected the Father participated with the caseworker in preparing the plan, the
second caseworker set up visits and arranged services, and the Father did not raise
his complaints to the trial court that the first caseworker failed to go over the plan
with him and delayed in scheduling services. Id. at *9; see also In re B.S.T., 977
S.W.2d 481, 486 (Tex. App.—Houston [14th Dist.] 1998, no pet.), overruled in
part on other grounds by In re C.H., 89 S.W.3d 17 (Tex. 2002) (holding the
evidence was sufficient to support termination under subsection N when, after
release from prison, the defendant was advised of visitation but only visited with
his children twice and made no further efforts to be involved with them, and a
caseworker testified that all reasonable efforts were made to return the children to
the parents).

      On June 9, 2014, the Father made an oral motion for continuance prior to the
beginning of trial. The Father’s counsel argued that the Father was not served until
November, DNA testing was performed in December, and the Father and his
counsel did not learn of the DNA results until January. The Father requested
additional time to complete his services. In response, the Department and the
attorney ad litem for the Child argued that counsel was appointed in December, the
Father was released from incarceration in April, and the Father should have moved
for a continuance earlier, instead of the day of trial. While the Father has not
expressly challenged the denial of a continuance, to the extent the denial impacted



                                          12
his ability to comply with court-ordered services, we conclude the trial court did
not abuse its discretion in denying an oral motion for continuance, unsupported by
verification or an affidavit. See In re E.L.T., 93 S.W.3d 372, 375 (Tex. App.—
Houston [14th Dist.] 2002, no pet.) (citing Tex. R. Civ. P. 251).

      We agree with the Department’s contention that it was the Father’s own
actions that caused his incarceration and delayed his involvement in the case. The
Department made several attempts to contact the Father before he was
incarcerated. After he went to jail, the Department tracked him down and obtained
service and a DNA test while he was incarcerated. Both caseworkers testified to
their efforts to provide the Father a copy of the service plan and work with him in
completing the required services. The Department used due diligence to locate the
Father in State Jail, have him served within two weeks of his incarceration, and
have DNA testing completed shortly thereafter. As soon as the Department learned
of the Father’s release from jail, it arranged his psychosocial evaluation and
urinalysis. Accordingly, we conclude the evidence supports a finding that the
Department made reasonable efforts to return the Child to the Father. See In re
K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.) (holding the
State showed that it made reasonable efforts to return the child to the parent when
it prepared service plans and made efforts to work with the parent on the service
plans).

      2. The Father’s Contacts with the Child

      The Father was incarcerated for six months of the almost one-year period
this case was pending. The Father used his incarceration as an excuse for failing to
visit the Child. As discussed above, the Department responded that the Father’s
incarceration resulted from his own actions. The Father acknowledged he was
aware that the Mother alleged he was the Child’s biological father before this case


                                         13
was initiated, yet he had no contact with the Child before his incarceration.

      Caseworker Jones testified the Father has never visited the Child or sent any
letters or cards. He also has not made any phone calls to the Child. The Father
never asked for any photographs of the Child. He has not offered any support for
the Child, and none of the Father’s family members have offered support. The
Father has not provided proof that he is able to support himself and the Child.
Jones testified the Father told her he was presently living with his mother. In his
subsequent testimony, the Father confirmed that he resides with his mother. The
Father has not provided a lease, deed, or any other documentation to show that he
has a right to live at the residence. Jones explained that without documentation, the
Department does not consider that the Father has provided proof of stable housing.
Jones testified the Father has had at least three addresses throughout the pendency
of this case. Jones also testified the Father failed to keep in regular contact with the
Department during the pendency of the case.

      The Father testified that he had a “one night stand” with the Mother,
although there was testimony that he is alleged to be the Father of another of the
Mother’s children. He testified that before this case was filed, shortly after the
Child was born, he asked the Mother for DNA testing when he first learned he
might be the Child’s father. He testified she was “nonchalant about the situation,”
leaving him with the impression that the baby probably was not his. Despite this
discussion, the Father then testified he had no way to contact the Mother about
seeing the Child before he was notified about this case. The Father testified he was
not involved in the 2011 investigation shortly after the Child’s birth. He denied any
knowledge about the Mother’s lifestyle or the conditions in which the Child lived
before the Department removed him from the Mother’s care. The Father testified
that when he was contacted in this case about possibly being the Child’s father, he


                                          14
again requested a DNA test. He submitted to testing while he was in Plane State
Jail. On cross-examination, the Father admitted that he knew it was possible that he
was the Child’s biological father before the Department took custody of the Child,
yet he took no action to see the Child or provide support.

      Atkinson acknowledged that she was aware that the Father had requested
DNA testing and he had stated that he believed that he was not the biological father
of the Child. Yet the Father did not contact the Department to arrange DNA testing
before he was incarcerated. When the Father was served in November 2013, he did
not contact the Department. The Department obtained an order requiring DNA
testing, and the results confirming the Father’s parentage were received in January
2014. When the DNA testing confirmed the Father’s paternity, the Father did not
contact the Department. After he knew his paternity had been confirmed, he filed
an answer and general denial in this suit as an “alleged” father. The Father did not
request in his pleading that he be declared the Child’s father or seek any relief with
respect to the Child. The Father did not provide for the Child after his paternity
was confirmed. The Father did not contact the Department when he was released
from jail in April. Caseworker Jones contacted the Aunt at the beginning of May,
after the Father had been released from the state jail facility the month before, and
obtained a telephone number for him.

      Jones testified the Father showed no interest in the Child until shortly before
trial. She stated the Father requested visits with the Child for the first time “within
the last couple of weeks.” The Father first asked to visit the Child about May 20 or
21, less than three weeks before trial, when Jones called to set up the Father’s
urinalysis. The Department did not recommend visitation at that time because it
was so close to trial, the Child does not know the Father, and it would be
disruptive.


                                          15
      In sum, the Father has had no contact with the Child. Even though the Child
was four at the time of trial, the Father did not attempt to speak with him on the
telephone or to send him cards or letters that could have been read to the Child.
The Father never asked about the Child’s placement or where he lived. The Father
has not paid any child support or provided any other support, and he never visited
the Child.

      We conclude the evidence supports the finding that the Father has not
regularly visited or maintained significant contact with the Child. See In re K.G.,
350 S.W.3d 338, 355 (Tex. App.—Fort Worth 2011, pet. denied) (upholding
termination based on subsection N where mother failed to visit child after service
of citation); In re J.J.O., 131 S.W.3d 618, 628–29 (Tex. App.—Fort Worth 2004,
no pet.) (holding the evidence legally and factually sufficient to support finding
that mother had not regularly visited or maintained significant contact with the
child when mother made only twelve visits during a nine-month period, was late to
visits, and sometimes failed to interact with the child); see also M.C. v. Dep’t of
Family & Protective Servs., 300 S.W.3d 305, 310 (Tex. App.—El Paso 2008, pet.
denied) (holding that mother did not regularly visit or maintain significant contact
with the child when she visited only six to eight times in a twelve-month period
and when mother attended visitations, she remained quiet and showed no
emotion.); In re H.R., 87 S.W.3d 691, 699 (Tex. App.—San Antonio 2002, no pet.)
(holding evidence was legally and factually sufficient to support constructive
abandonment where evidence reflected only intermittent visits).

      3. The Father’s Ability to Provide a Safe Environment

      Jones testified that the Father had not informed her of any plans to show that
he can provide the Child with a safe and stable environment. The only plan he
described was “to work and to live with his sister until he got himself together.”


                                        16
Jones testified the Father lacks stability and he has not shown he can care for this
four-year-old Child. Jones further testified the Father has not provided proof of
income, although he told her he was employed. The Father later testified he works
as a tree climber at Lockridge Services and makes $650 per week in “take-home
pay,” but he provided no documentation to support his income.

       On cross-examination, Jones acknowledged that the Department became
involved with the Child because of the Mother’s actions, and not because of
anything the Father had done. Jones also acknowledged that two months after his
paternity was established, the Father provided information about the Aunt as a
possible placement for the Child. Jones stated that a home study was performed
and the Aunt’s home was approved. Jones explained that the Department did not
receive the home study report until mid-April 2014, and the Department’s position
was that it would not be beneficial to change the Child’s placement so close to
trial, which was scheduled in less than six weeks.4 Jones also acknowledged on
cross-examination that she was aware the Father has other children, but she
believed it was not important for the Child to know those older siblings.

       The Father testified that he learned he was the Child’s biological father
when his attorney wrote to him in January or February, while he was still
incarcerated. He stated he was happy about the discovery and wanted to be in the
Child’s life. The Father testified that he did not send anything to the Child because
he had no way to contact him. He acknowledged that he made no inquiries about
how to contact a child in the Department’s custody. He stated he has no knowledge
about how the child-protection system works. The Father testified he has four

       4
         On April 24, 2014, the Father filed a motion requesting a special status hearing to
address the possibility of placing the Child with the Aunt. The record indicates that a hearing
was set for May 12, 2014, but no record of a hearing was filed and no order on the Father’s
motion is contained in the record.


                                              17
children and he always took care of them. The Father stated he contacted his sister
to attend court once when he was brought to court on a bench warrant. He testified
he called caseworker Jones after he was released from the State Jail facility. He
said she did not give him an explanation why he could not see his Child. The
Father testified that he wants to form a relationship with the Child. He testified that
he has informed his other children about the Child, and they would also like to
have a relationship with the Child.

      The Father testified he never abused or neglected any child. He has a great
relationship with his other children. His oldest child is 21, and the others are 18
and 17. The children were with the Father’s wife while he was incarcerated. The
Father testified he has been a father figure for his oldest child and supported all of
his children financially. The Father stated that caseworker Jones never asked him
about his plans to be a part of the Child’s life.

      The Father testified he has four sisters and one brother. He and his attorney
submitted the Aunt’s name as a possible placement for the Child while he was
incarcerated. The Father testified he would pay for daycare for the Child if he was
awarded custody, but he had not made any arrangements. He had not investigated
any pre-Kindergarten programs. He acknowledged that he does not know anything
about the Child.

      An incarcerated parent may provide a safe environment for a child through
family members. See In re N.R.T., 338 S.W.3d at 674 (finding Department’s
rejection of each of the suggested placements supported finding that no family
member could provide a safe environment for the child while the mother was
incarcerated). Although the Aunt’s home was approved after a home study, she had
never seen the Child, and it was determined that it was too disruptive to change the
Child’s placement shortly before trial.


                                           18
      While the record contains some evidence that the Father had been a good
parent to his older children, there was no evidence about his present ability to care
for a young child. The Father did not provide proof of income or stable housing, as
required in his court-ordered service plan. He testified he was living with his
mother, but there was no indication whether he planned to stay there. He did not
have any plans for the Child’s care, particularly when he travelled out-of-state
while working as a commercial truck driver. This evidence supports a finding that
the Father lacked the ability to provide a safe environment for the Child. See In re
T.M., No. 02–09–145–CV, 2009 WL 5184018, at *4–*5 (Tex. App.—Fort Worth
Dec. 31, 2009, pet. denied) (mem. op.) (holding evidence legally and factually
sufficient to support inability to provide safe environment finding when father
failed to complete service plan, did not attempt to find a place for children to live,
and did not give foster mother money to care for children). The failure to complete
a family service plan demonstrates an inability to provide a child with a safe
environment. See In re A.D., 203 S.W.3d 407, 411–12 (Tex. App.—El Paso 2006,
pet. denied).

      In an earlier case, this court found the Department did not meet its burden to
show evidence that the parent has demonstrated an inability to provide the child
with a safe environment in In re A.S., 261 S.W.3d at 90. In A.S., the incarcerated
father had two siblings who sought placement of the children, and there was no
evidence the Department followed up with home studies. Here, the Department had
a home study prepared on the Aunt’s home, but it was too close to trial to
implement a change in the Child’s living arrangements. In addition, in A.S., the
record reflected the father’s brother visited the children often. Id. Here, none of the
Father’s family members visited the Child while he was incarcerated or after his
release; there is no evidence any of the Father’s family had ever seen the Child. In



                                          19
In re J.T.G., No. 14-10-00972-CV, 2012 WL 171012 (Tex. App.—Houston [14th
Dist.] Jan. 19, 2012, pet. denied) (mem. op.), this court affirmed the termination of
parental rights based on subsection N. We cited the mother’s history of a failure to
maintain stable housing, her poor judgment concerning the children’s welfare, her
failure to complete her court-ordered services to obtain the return of her children,
and her failure to regularly visit or provide any support for her three youngest
children as sufficient evidence of constructive abandonment. Id. at *13.

       In sum, under the applicable standards of review, the record evidence is
legally and factually sufficient to support the finding that the Father constructively
abandoned the Child pursuant to section 161.001(1)(N). Reviewing all the
evidence in the light most favorable to the termination findings, we conclude that a
reasonable fact finder could have formed a firm belief or conviction as to the truth
of the termination findings under section 161.001(1)(N). In light of the entire
record, the disputed evidence that a reasonable fact finder could not have credited
in favor of the termination finding under section 161.001(1)(N) is not so significant
that a fact finder could not reasonably have formed a firm belief or conviction as to
the truth of the termination finding under section 161.001(1)(N). See In re H.R.M.,
209 S.W.3d at 108. We overrule this portion of the Father’s second issue.

       In the Father’s first issue, he claims the Department announced in court what
amounted to a stipulation that it abandoned subsection E, endangering conduct, as
a ground for termination. 5 See Tex. Fam. Code § 161.001(1)(E). Because a single
predicate finding under section 161.001(1) of the Family Code is sufficient to
support a judgment of termination when there is also a finding that termination is
       5
         We note that the claim in the Father’s first issue is not supported by the record. The
record of pretrial proceedings contains no such stipulation. At one point during the hearing, in
response to a relevance objection to a question about the dangerous conditions in which the
Child was found, the Department’s counsel stated, “We are proceeding on (D) and (E) grounds.”
Therefore, it was clear the Department had not abandoned endangerment grounds.


                                              20
in the child’s best interest, we need not address the Father’s first issue. See In re
A.V., 113 S.W.3d at 362 (affirming termination decree based on one predicate
without reaching second predicate found by fact finder and challenged by
appellant); In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.]
2003, pet. denied) (same).

      B. Best Interest

      The Father also argues that the evidence is insufficient to support the finding
that termination of his parental rights is in the best interest of the Child. We review
the entire record in deciding a challenge to the court’s best interest finding. In re
E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that the
best interest of a child is served by keeping the child with his or her natural parent.
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re D.R.A., 374 S.W.3d at 533.
Prompt and permanent placement of the child in a safe environment is also
presumed to be in the child’s best interest. Tex. Fam. Code § 263.307(a).

      Courts may consider the following nonexclusive factors in reviewing the
sufficiency of the evidence to support the best interest finding, including: the
desires of the child; the present and future physical and emotional needs of the
child; the present and future emotional and physical danger to the child; 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 which 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, 372 (Tex. 1976).
This list is not exhaustive, and evidence is not required on all of the factors to
support a finding terminating parental rights. Id.; In re D.R.A., 374 S.W.3d at 533.


                                          21
      In addition, the Texas Family Code sets out factors to be considered in
evaluating the parent’s willingness and ability to provide the child with a safe
environment, including: the child’s age and physical and mental vulnerabilities; the
willingness and ability of the child’s family to seek out, accept, and complete
counseling services and to cooperate with and facilitate an appropriate agency’s
close supervision; the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time; and
whether the child’s family demonstrates adequate parenting skills, including
providing the child with minimally adequate health and nutritional care, a safe
physical home environment, and an understanding of the child’s needs and
capabilities. Tex. Fam. Code § 263.307(b); In re R.R., 209 S.W.3d at 116.

      1. Danger to the Child, Including Parental Drug Use and Criminal
Activity
      The Father admitted using hydrocodone on April 8, 2013, and to using PCP
on November 5, 2012. In addition, he was convicted of a drug-related offense. A
parent’s drug use supports a finding that termination is in the best interest of the
child. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.).
The factfinder can give “great weight” to the “significant factor” of drug-related
conduct. In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.); see
also In re J.N.H., No. 02–11–00075–CV, 2011 WL 5607614, at *8 (Tex. App.—
Fort Worth Nov. 17, 2011, no pet.) (mem. op.) (considering a parent’s criminal and
drug histories in affirming a trial court’s decision that termination was in the best
interest of a child). The Father also acknowledged that he failed to follow the rules
of his community supervision.

      The Child Advocate testified she was concerned about the Father’s drug use.
The criminal charges for which he was sent to State Jail were related to illegal drug



                                          22
use. The Child Advocate opined that even if the drugs were not the Father’s, he
was associating with drug users. In addition, the Father plead true to the allegations
in the motion to adjudicate his guilt, and one of the allegations was that he had
tested positive for hydrocodone.

      The record contains some evidence tending to negate the Father’s drug use.
The Father submitted to a drug test in May, 2014, and the results were negative.
The Aunt testified that she had never seen her brother under the influence of drugs.
She stated he is not known to be a drug addict. She explained that the Father
admitted to violating the terms of his probation so that he could serve his sentence
and be permitted to drive a truck out of state.

      It was within the trial court’s discretion to determine the weight and
credibility of this testimony, and we are not to rely on evidence that is disputed or
that the court could have rejected as not credible. See In re L.M.I., 119 S.W.3d at
712; In re A.J.E.M.-B., No. 14-14-00424-CV, 2014 WL 5795484, at *14 (Tex.
App.—Houston [14th Dist.] Nov. 6, 2014, no pet.) (mem. op.) (stating the trial
court, as the factfinder, was entitled to disbelieve the Mother’s testimony denying
her drug use and rely on other evidence in holding termination was in the best
interest of the child). After considering all the evidence related to this factor, the
trial court reasonably could have formed a firm belief or conviction that the Father
used drugs and termination is in the best interest of the Child. See Walker v. Texas
Dep’t of Family & Protective Servs., 312 S.W.3d 608, 618–19 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied).

      2. Stability and Compliance with Services

      Stability and permanence are paramount in the upbringing of children. In re
T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied). A
parent’s failure to show that he is stable enough to parent a child for any prolonged

                                          23
period entitles the trial court “to determine that this pattern would likely continue
and that permanency could only be achieved through termination and adoption.” In
re B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *9 (Tex. App.—Houston
[14th Dist.] Dec. 23, 2004, no pet.) (mem. op.).

      The evidence of the Father’s failure to complete the requirements of his
court-ordered service plan is recited above. It was appropriate for the court to
consider that the Father did not comply with the court-ordered service plan for
reunification with the Child in evaluating the Child’s best interest. See In re
E.C.R., 402 S.W.3d at 249 (stating the failure to comply with court-ordered
services can support best-interest finding); In re E.A.F., 424 S.W.3d 742, 752 (Tex.
App.—Houston [14th Dist.] 2014, pet. granted) (considering failure to participate
in services required for reunification in reviewing best-interest determination).

      The Child Advocate testified about the report she filed with the court. She
recommended both parents’ rights be terminated. As to the Father, she testified he
had not provided proof of safe and stable living arrangements or completed the
other required services. The Child Advocate acknowledged on cross-examination
that she had not had any interaction with the Father.

      3. Child’s Desires, Needs, and Proposed Placement

      The Child was very young at the time of trial and there is no evidence of his
desires. When a child is too young to express his desires, the factfinder 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 J.D., 436 S.W.3d 105, 118 (Tex.
App.—Houston [14th Dist.] 2014, no pet.).

      The Child Advocate testified about how well the Child is doing in the foster
home. The Child Advocate testified the Child has been in his current placement for



                                         24
two years, almost half of his life. He is thriving and bonded to his caregiver. He is
in an adoptive home where his brother was in the process of being adopted. The
Child is very close to his brother — they are “inseparable.” He also has regular
contact with his other siblings. The siblings live nearby, visit regularly, and they
have bonded with the Child. The Child has improved greatly in his language skills
and behavior while in the foster home.

          Caseworker Atkinson testified about her involvement in this case from June,
2011 to the end of September 2013. Atkinson visited the Child monthly while he
was in foster care, and she saw him “blossom.” She testified the Child is currently
in a stable environment with regular access to his siblings. The Child has been in
the same foster home with one of his older siblings for two years. Atkinson stated
the foster mother is in the process of adopting the sibling and would like to adopt
the Child. In Atkinson’s opinion, the foster home provides a safe and stable
environment for the Child, and it is in the Child’s best interest to remain in the
foster home.

          Caseworker Jones also testified the Child’s foster mother would like to adopt
him. Jones testified that the foster mother was in the process of adopting the older
brother, and described the close relationship the Child has with his older brother.
Jones testified that the Child just had his fourth birthday, and he has no relationship
at all with his biological father; the Child does not know the Father. Jones testified
that it is the Department’s position that the Child will “be best suited in a
permanent placement where he can have extended access with his siblings, a stable
environment, access to education, and able to have all of his overall well-being
needs met” through adoption by his foster mother. Jones testified that in her
opinion, it would be in the Child’s best interest to terminate the Father’s parental
rights.


                                            25
      The foster mother testified at trial that she wants to adopt the Child. She
stated the Child had been with her since he was in diapers. When he was first
placed in her care, he was small and diagnosed with “failure to thrive.” The foster
mother testified she worked with the caseworkers and the school district to obtain
speech therapy to help the Child with his delayed speech. The foster mother further
testified the Child is “a good kid, fun loving.” Her older daughter is attached to the
Child. The foster mother stated the Child has bonded with her entire family,
including grandparents. The Child has chosen a different name and wants to be
called his new name. The family travels a lot and is engaged in numerous
activities. The foster mother testified that she considers the Child her son, stating
“He’s — for me, he’s mine.” She further testified, “We have a great life. He has a
normal life.”

      The Child has been in his current placement for two years, almost half of his
life. He is thriving and bonded to his caregiver. The stability of the proposed home
environment is an important consideration in determining whether termination of
parental rights is in the child’s best interest. See J.N.R., 982 S.W.2d 137, 143 (Tex.
App.—Houston [1st Dist.] 1998, no pet.). A child’s need for permanence through
the establishment of a “stable, permanent home” has been recognized as the
paramount consideration in a best-interest determination. See In re K.C., 219
S.W.3d at 931. Therefore, evidence about the present and future placement of the
Child is relevant to the best interest determination. See C.H., 89 S.W.3d at 28.

      In contrast, there was no evidence that the Father could provide for the
Child’s needs. He had been incarcerated for six months during these proceedings.
While imprisonment alone is not a basis to terminate a parent’s rights, it is an
appropriate factor to consider. In re M.R.J.M., 280 S.W.3d at 503. When a parent is
incarcerated, he is absent from the child’s daily life and unable to provide support


                                         26
to the child, negatively impacting the child’s living environment and emotional
well-being. Id. Caseworker Atkinson testified that a parent’s incarceration is not
supportive of the child’s physical or emotional needs because a parent who is
incarcerated cannot provide for any of the child’s needs.

      The record evidence on these factors supports the trial court’s best-interest
finding.

      4. Parenting Abilities and Family Support

      We may also consider the Father’s past performance as a parent in
evaluating his fitness to provide for the Child and the trial court’s determination
that termination of his parental rights would be in the Child’s best interest. See In
re C.H., 89 S.W.3d at 28. The Father testified that he had provided for his older
children and was a “role model” for the oldest. The Aunt testified that she has seen
the Father interact with his other four children and he is a good father. She stated
he is involved with his children; he disciplines them when they misbehave, but he
does not abuse or hurt the children. She testified that if the Father’s rights were not
terminated she would be a support system to assist him in establishing a
relationship with the Child. While the Aunt testified that some of the Father’s other
four children had lived with him in the past, she did not know where they are living
now. She admitted she did not know the names and ages of all of the Father’s
children and had not seen all of them. She did not know how often the Father sees
his other children. The trial court, as the factfinder, evaluated the credibility and
weight of the Aunt’s testimony on this issue, and we may not disturb that
determination.

      Evidence that a parent has failed to maintain any significant contact with the
Child supports a trial court’s determination that termination is in the child’s best
interest. See H.N. v. Dep’t of Family & Protective Servs., 397 S.W.3d 802, 814

                                          27
(Tex. App.—El Paso 2013, no pet.). On the other hand, the evidence of the foster
mother’s parenting abilities and family support is recited above. While there is
evidence in the record that the Father had been a good parent in the past, this
evidence does not outweigh the other evidence supporting a finding that
termination of the Father’s parental rights is in the Child’s best interest.

      In sum, the record contains evidence supporting the best interest finding
based on the Father’s drug use, lack of contact with the Child, and failure to
comply with court-ordered services. See In re S.B., 207 S.W.3d 877, 887–88 (Tex.
App.—Fort Worth 2006, no pet.) (considering the parent’s drug use, inability to
provide a stable home, and failure to comply with his family service plan in
holding the evidence supported the best interest finding).

      Viewing all the evidence in the light most favorable to the judgment, we
conclude that a factfinder could have formed a firm belief or conviction that
termination of the Father’s parental rights is in the Child’s best interest. See J.F.C.,
96 S.W.3d at 265–66. In light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the best interest finding is
not so significant that a fact finder could not reasonably have formed a firm belief
or conviction that termination of the Father’s parental rights is in the Child’s best
interest. See In re H.R.M., 209 S.W.3d at 108. Therefore, after considering the
relevant factors under the appropriate standards of review, we hold the evidence is
legally and factually sufficient to support the trial court’s finding that termination
of the parent-child relationship is in the Child’s best interest. See Tex. Fam. Code §
161.001(2). We overrule the remainder of the Father’s second issue.

                                 IV. CONCLUSION

      We have determined that legally and factually sufficient evidence supports
the trial court’s findings of the predicate ground under section 161.001(1)(N) and

                                           28
that termination of the Father’s parental rights is in the best interest of the Child.
Therefore, the trial court’s judgment is affirmed.




                                       /s/    Ken Wise
                                              Justice



Panel consists of Justices McCally, Brown, and Wise.




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