Affirmed and Memorandum Opinion filed April 14, 2016.




                                               In The

                           Fourteenth Court of Appeals

                                      NO. 14-15-00910-CV


        IN THE INTEREST OF I.W. AKA A.A.W. AND I.W. AKA J.A.W.,
                              CHILDREN

                          On Appeal from the 313th District Court
                                   Harris County, Texas
                            Trial Court Cause No. 2014-04849J


                      MEMORANDUM                            OPINION
          Appellant A.T.V. appeals the trial court’s final decree terminating his
parental rights regarding his one-year-old twins, Amy and Jimmy, and appointing
appellee Texas Department of Family and Protective Services (the Department) to
be the twins’ managing conservator.1 The twins’ mother, Kate, relinquished her
parental rights. Appellant raises four issues challenging the sufficiency of the
evidence to support the judgment. Because the judgment is supported by sufficient
evidence, we affirm.

1
    We use fictitious names in this opinion. See Tex. R. App. P. 9.8(b)(2).
                                   BACKGROUND
      On September 16, 2014, Kate arrived at the emergency room of a Houston
hospital complaining of severe abdominal pain and bleeding after intercourse. She
was approximately 25 weeks pregnant with the twins. Kate knew she was pregnant
but used methamphetamine throughout her pregnancy, including the day prior to
her arrival at the hospital. She did not seek prenatal care during her pregnancy.

      The twins were delivered that day via c-section. Each weighed a little over
one pound. They were admitted to the neonatal intensive care unit. Both babies
suffered from respiratory distress syndrome resulting from Kate’s drug use.

      The next day, the Department received a referral alleging physical abuse of
the twins. After interviewing Kate and hospital personnel, the Department filed a
petition for conservatorship and termination of Kate’s parental rights due to her
physical abuse of the babies. The Department did not know the identity of the
twins’ father at that time. A few days later, the Department filed an amended
petition naming appellant as their alleged father. Appellant filed an answer pro se
denying he was the babies’ father and asking for genetic testing. However, before
such a test was performed, appellant wrote a letter to the Department caseworker
saying he was the babies’ father and he wanted full custody of them. Based on the
results of a DNA test, the trial court adjudicated appellant to be the twins’ father in
June 2015. The court also appointed counsel for appellant at that time.

      Trial to the associate judge was conducted on October 7, 2015. See Tex.
Fam. Code Ann. § 201.007 (powers of associate judge). The Department
caseworker, Child Advocates volunteer, the babies’ foster mother, and Kate
testified. Appellant did not testify or call any witnesses. He offered the letter
discussed above into evidence, and the trial court admitted it without objection. He


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did not offer any other evidence. Kate filed an irrevocable affidavit of
relinquishment of her parental rights of the twins.

        The district judge signed a final decree terminating appellant’s rights under
subsections E, L, N, O, and Q of section 161.001(1) of the Family Code.2 Kate’s
parental rights were terminated based on her affidavit of relinquishment. See Tex.
Fam. Code Ann. §§ 161.001(1)(K) (termination may be based on affidavit of
relinquishment); 161.103 (requirements for affidavit). The trial court also found
termination of Kate’s and appellant’s parental rights was in the twins’ best interest.
Id. § 161.001(2). The Department was appointed to be their managing conservator.

       As of the time of trial, both babies were healthy and living with foster
parents who intended to adopt them.

                                          ANALYSIS

I.     Burden of proof and standard of review
       Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex.
1980); In re S.R., 452 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2014,
pet. denied). Although parental rights are of constitutional magnitude, they are not
absolute. The child’s emotional and physical interests must not be sacrificed
merely to preserve the parent’s rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

       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 Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).


2
  The numbering of section 161.001 changed on September 1, 2015. Section 161.001(1) is now
section 161.001(b)(1). Act of June 18, 2015, 84th Leg., R.S., ch. 944, § 11, 2015 Tex. Sess. Law.
Serv. 3271 (West) (codified at Tex. Fam. Code Ann. § 161.001(b)(1)). This case is governed by
the preceding version, effective January 1, 2011. We refer to the 2011 version in this opinion.
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“‘Clear and convincing evidence’ means the measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007; accord
J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened
standard of review. S.R., 452 S.W.3d at 358.

      Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act described in section 161.001(1)
of the Texas Family Code, and (2) termination is in the best interest of the child.
Tex. Fam. Code Ann. § 161.001. Only one predicate finding under section
161.001(1) is necessary to support a decree 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 termination case, we
consider all the evidence in the light most favorable to the finding to determine
whether a reasonable fact finder could have formed a firm belief or conviction that
its finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); J.F.C., 96
S.W.3d at 266; C.H., 89 S.W.3d at 25. We assume the fact finder resolved disputed
facts in favor of its finding if a reasonable fact finder could do so, and we disregard
all evidence a reasonable fact finder could have disbelieved. J.O.A., 283 S.W.3d at
344; J.F.C., 96 S.W.3d at 266.

      In reviewing termination findings for factual sufficiency of the evidence, we
consider and weigh all the evidence, including disputed or conflicting evidence.
See 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.” J.F.C., 96 S.W.3d

                                          4
at 266. 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) (per curiam). The fact finder is the sole
arbiter when assessing the credibility and demeanor of witnesses. Id. at 109. 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).

       If disposition of an issue would result in a rendition of judgment, an
appellate court should consider that issue before addressing any issues that would
result only in a remand for a new trial. See Natural Gas Pipeline Co. of Am. v.
Pool, 124 S.W.3d 188, 201 (Tex. 2003); S.R., 452 S.W.3d at 359 (applying rule in
parental termination appeal and first addressing legal sufficiency challenges).
Accordingly, we first consider the challenges to the legal sufficiency of the
evidence, followed by a review for factual sufficiency.

II.    Statutory Bases for Termination
       Appellant’s parental rights were terminated under five subsections of section
161.001(1): subsection E (endangerment);3 subsection L (conviction of crime
resulting in death or serious injury to a child);4 subsection N (constructive
abandonment);5 subsection O (failure to complete family service plan);6 and

3
  The parent has “engaged in conduct or knowingly placed the child with persons who engaged
in conduct which endangers the physical or emotional well-being of the child.” Tex. Fam. Code
Ann. § 161.001(1)(E).
4
  The parent has “been convicted or has been placed on community supervision, including
deferred adjudication community supervision, for being criminally responsible for the death or
serious injury of a child under [sixteen enumerated] sections of the Penal Code, or under a law of
another jurisdiction that contains elements that are substantially similar to the elements of an
offense under one of [those] Penal Code sections, or adjudicated under Title 3 for conduct that
caused the death or serious injury of a child and that would constitute a violation of one of
[those] Penal Code sections.” Id. § 161.001(1)(L).
5
   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 for
not less than six months, and: (i) the department has made reasonable efforts to return the child
                                                5
subsection Q (will be imprisoned for more than two years).7 In appellant’s first,
second, and third issues, he challenges the sufficiency of the evidence to support
the trial court’s findings under subsections E, N, and O. He does not challenge the
findings under subsections L or Q.

       Subsection Q requires clear and convincing evidence that appellant
“knowingly engaged in criminal conduct that has resulted in [his]: (i) conviction of
an offense; and (ii) confinement or imprisonment and inability to care for the child
for not less than two years from the date of filing the petition.” Tex. Fam. Code
Ann. § 161.001(1)(Q). “By looking at future imprisonment, subsection Q purports
to protect children whose parents will be incarcerated for periods exceeding two
years after termination proceedings begin.” A.V., 113 S.W.3d at 360–61.

       The record contains an indictment alleging appellant intentionally or
knowingly engaged in sexual contact with a child younger than seventeen years of
age. The record also contains a judgment, signed March 23, 2015, reflecting
appellant pleaded guilty to that charge and was convicted of indecency with a child
by sexual contact, in violation of section 21.11(a)(1) of the Penal Code. Together,
those documents constitute clear and convincing evidence of the first fact required
to be proved under subsection Q: appellant knowingly engaged in criminal conduct
that resulted in his conviction for an offense.


to the parent; (ii) the parent has not regularly visited or maintained significant contact with the
child; and (iii) the parent has demonstrated an inability to provide the child with a safe
environment.” Id. § 161.001(1)(N).
6
   The parent has “failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of the child who has been in
the permanent or temporary managing conservatorship of the Department of Family and
Protective Services for not less than nine months as a result of the child’s removal from the
parent under Chapter 262 for the abuse or neglect of the child.” Id. § 161.001(1)(O).
7
   The parent has “knowingly engaged in criminal conduct that has resulted in the parent’s:
(i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for the
child for not less than two years from the date of filing the petition.” Id. § 161.001(1)(Q).
                                                6
      The second part of subsection Q requires proof that the parent “be both
incarcerated or confined and unable to care for the child for at least two years from
the date the termination petition is filed.” H.R.M., 209 S.W.3d at 110 (emphasis in
original). Inability to care for the child is an independent requirement and is not
met by showing incarceration alone. In re B.M.R., 84 S.W.3d 814, 818 (Tex.
App.—Houston [1st Dist.] 2002, no pet.). The incarcerated parent’s willingness
and ability to provide financial and emotional support are factors to be considered
in determining if the parent is unable to care for the child. See id.

      The fact of incarceration is established by the judgment, which shows
appellant was sentenced to twenty-five years’ imprisonment. Appellant’s letter to
the caseworker, which he wrote in January 2015, is evidence of his inability to
support the twins. He wrote that he wanted “a lawyer to be assigned to [him]
because [he] cannot afford to hire one.” In June 2015, after appellant began serving
his 25-year sentence, the trial court appointed counsel to represent him. We infer
from the appointment that the trial court found him indigent. See Tex. Fam. Code
Ann. § 107.013(a) (trial court must appoint counsel for indigent parent who
appears in termination proceeding). His inability to pay for a lawyer while he was
in prison is evidence that he will be unable to support his children financially while
he is in prison. See B.M.R., 84 S.W.3d at 818.

      In sum, the trial court’s finding under subsection 161.001(1)(Q) is not
challenged by appellant, and in any event is supported by legally and factually
sufficient evidence. This single finding is sufficient to support a decree of
termination when there is also a finding that termination is in the children’s best
interest. In re A.V., 113 S.W.3d at 362. In light of our conclusion regarding the trial
court’s finding on subsection Q, we need not address the findings under
subsections E, L, N, or O. We overrule appellant’s first, second, and third issues.

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III.   Best Interest
       In his fourth issue, appellant asserts the evidence is legally and factually
insufficient to support the trial court’s finding that termination of appellant’s
parental rights is in the twins’ best interest. We review the entire record in deciding
a challenge to the court’s best-interest finding. E.C.R., 402 S.W.3d at 250.

       Termination must be in the child’s best interest. Tex. Fam. Code Ann.
§ 161.001(2). There is a strong presumption the best interest of a child is served by
keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006) (per curiam). Prompt and permanent placement of the child in a safe
environment is also presumed to be in the child’s best interest. See Tex. Fam. Code
Ann. § 263.307(a).

       Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best-interest finding: the desires of the
child; the physical and emotional needs of the child now and in the future; the
emotional and physical danger to the child now and in the future; the parental
abilities of the persons seeking custody; the programs available to assist those
persons seeking custody in promoting the best interest of the child; the plans for
the child by the individuals or agency seeking custody; the stability of the home or
proposed placement; acts or omissions of the parent that may indicate the existing
parent-child relationship is not appropriate; and any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). As noted, this
list of factors is not exhaustive, and evidence is not required on all the factors to
support a finding that termination is in the child’s best interest. In re D.R.A., 374
S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).




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      In addition, the Family Code sets out thirteen factors to be considered in
evaluating a parent’s willingness and ability to provide the child with a safe
environment. See Tex. Fam. Code Ann. § 263.307(b). Those factors are:

               i. the child’s age and physical and mental vulnerabilities;

              ii. the frequency and nature of out-of-home placements;

              iii. the magnitude, frequency, and circumstances of harm to the
                   child;

              iv. whether the child has been the victim of repeated harm after the
                  initial report and intervention by the Department;

               v. whether the child is fearful of living in or returning to the
                  child’s home;

              vi. the results of psychiatric, psychological, or developmental
                  evaluations of the child, the child’s parents, other family
                  members, or others who have access to the child’s home;
             vii. whether there is a history of abusive or assaultive conduct by
                  the child’s family or others who have access to the child’s
                  home;
             viii. whether there is a history of substance abuse by the child’s
                   family or others who have access to the child’s home;
              ix. whether the perpetrator of the harm to the child is identified;

               x. 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;

              xi. the willingness and ability of the child’s family to effect
                  positive environmental and personal changes within a
                  reasonable period of time;

             xii. whether the child’s family demonstrates adequate parenting
                  skills, including providing the child with:

               (a)   minimally adequate health and nutritional care;
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                 (b)      care, nurturance, and appropriate discipline consistent with
                          the child’s physical and psychological development;

                 (c)      guidance and supervision consistent with the child’s safety;

                 (d)      a safe physical home environment;

                 (e)      protection from repeated exposure to violence even though
                          the violence may not be directed at the child; and

                 (f)      an understanding of the child’s needs and capabilities; and
             xiii. whether an adequate social support system consisting of an
                   extended family and friends is available to the child.

Id.; R.R., 209 S.W.3d at 116.

            A.         The children and their foster parents
      The evidence about the twins and their foster parents is undisputed. The
twins were in the hospital until December 2014. Once released, they were placed in
their foster parents’ home, where they remained for the duration of the case. Both
babies had bonded with their foster parents, and the foster parents planned to adopt
them. The foster parents consistently met the babies’ emotional and physical needs.

      The babies were just over one year old at the time of trial. Neither had
severe health problems. Each received physical and occupational therapy every
other week. Both were healthy and happy.

            B.         Appellant
      Criminal     history.     Evidence of      criminal   conduct, convictions,       or
imprisonment is relevant to a review of whether a parent engaged in a course of
conduct that endangered the well-being of the child. S.R., 452 S.W.3d at 360–61;
A.S. v. Tex. Dep’t of Family & Protective Servs., 394 S.W.3d 703, 712–13 (Tex.
App.—El Paso 2012, no pet.).


                                            10
      In January 2005, appellant pleaded guilty in Harris County to burglary of a
habitation with intent to commit theft and was sentenced to four years in prison.
An indictment returned by the grand jury of Marion County in December 2012
alleged he intentionally or knowingly engaged in sexual contact with a child. Most
recently, as discussed, he pleaded guilty in March 2015 to indecency with a child
by sexual contact. He was serving his 25-year sentence at the time of trial.

       Substance abuse. A parent’s drug use can qualify as a voluntary, deliberate,
and conscious course of conduct endangering the child’s well-being. See S.R., 452
S.W.3d at 361; In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th
Dist.] 2009, no pet.). Appellant was ordered to submit to a drug test in early
October 2014. He walked out of the testing facility before samples could be
collected. His refusal to submit to the drug test may be treated by the trial court as
if he had tested positive for drugs. C.A.B., 289 S.W.3d at 885 (“A factfinder
reasonably could infer that [the mother’s] failure to submit to the court-ordered
drug screening indicated she was avoiding testing because she was using drugs.”);
accord In re C.J.S., 383 S.W.3d 682, 689 (Tex. App.—Houston [14th Dist.] 2012,
no pet.).

      Failure to complete court-ordered services. The Department caseworker
testified it was difficult to locate appellant when he was in custody because he was
moved from prison to prison. She said she mailed appellant a copy of the family
service plan. At least some mail was returned to her, however. There is evidence
appellant did not receive a copy of the family service plan.

      Appellant did know the identity of the caseworker; he wrote her a letter in
January 2015 from the Harris County Jail. That was the only communication she
received from him, even though appellant was reportedly not in jail for
approximately six months during this case. The trial court reasonably could have

                                         11
inferred from appellant’s lack of further communication that he was unwilling to
complete the requirements for him to be involved in the twins’ lives.

      Finally, appellant presented no evidence at trial regarding his abilities and
skills as a parent, his plans for the children, or his ability to provide a stable
placement and adequate support system despite his incarceration.

      In summary, the evidence is undisputed that the twins are well cared for and
happy with their foster parents, who plan to adopt them. The evidence is also
undisputed that appellant has a criminal history. He has been indicted at least twice
for sexual contact with a child, and he pleaded guilty to one of those charges. He
refused to take a drug test, and but for one letter in January 2015, he demonstrated
no interest in parenting his children. Accordingly, we conclude the evidence is
legally and factually sufficient to support the trial court’s finding that termination
of appellant’s parental rights is in the children’s best interest. We overrule
appellant’s fourth issue.

                                   CONCLUSION
      Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                       /s/    J. Brett Busby
                                              Justice

Panel consists of Justices Christopher, McCally, and Busby.




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