             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
       ___________________________
            No. 02-18-00255-CV
       ___________________________

    IN THE INTEREST OF J.D., A CHILD




    On Appeal from the 323rd District Court
            Tarrant County, Texas
        Trial Court No. 323-104748-17


Before Pittman, J.; Sudderth, C.J.; and Birdwell, J.
      Per Curiam Memorandum Opinion
                            MEMORANDUM OPINION

       After a bench trial, the trial court found by clear and convincing evidence that

termination of the parent–child relationship between Appellant A.D. (Father) and

toddler J.D. was in J.D.’s best interest and that Father had “had his parent–child

relationship terminated with respect to another child based on a finding that [his]

conduct was in violation of § 161.001(b)(1)(D) or (E), Texas Family Code, or

substantially equivalent provisions of the law of another state, pursuant to

§ 161.001(b)(1)(M),    Texas    Family     Code.”       See   Tex.    Fam.   Code   Ann.

§ 161.001(b)(1)(D), (E), (M), (2). 1 In his sole issue, Father contends that the evidence

is legally and factually insufficient to support the trial court’s best-interest finding.

Because we hold that the evidence is legally and factually sufficient to support the trial

court’s finding that termination of the parent–child relationship between Father and

J.D. is in her best interest, we affirm the trial court’s judgment.

                               STATEMENT OF FACTS

       B.D., J.D.’s older biological sister, was born in December 2015. After a bench

trial in November 2016, a trial court terminated Father’s parent–child relationship

with B.D. based on the finding that termination was in B.D.’s best interest as well as




       The trial court also terminated the parent–child relationship between J.D. and
       1

V.A. (Mother). Mother does not appeal.


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on other findings including endangerment findings.2 See id. § 161.001(b)(1)(D), (E),

(2).

       J.D., the subject of this appeal, was born in March 2017 while Mother was in

jail. It is not clear whether Father was confined at J.D.’s birth, but he was in jail by

the time the petition to terminate was filed three days after her birth. Near the end of

April 2017, when J.D. was about a month old, Father pled guilty pursuant to a plea

bargain to the manufacture or delivery of 4 or more but less than 200 grams of heroin

in exchange for a sentence of eleven years in prison. Father committed the offense

on October 11, 2015, long before J.D. was conceived but only about 2 1/2 months

before the birth of her elder sister B.D.

       Father also had prior convictions, including a 2014 conviction for assault

causing bodily injury to a family member (Mother); a 2010 conviction for burglary of a

habitation, and a 2008 conviction for burglary of a building.         Mother told her

counselor that Father sexually assaulted her in 2014.

       In his jailhouse interview with the Texas Department of Family and Protective

Services (TDFPS) conservatorship worker in this case, Father told her that:

       •     “[H]e was trying to do right by [J.D.]”;

       •     “[H]e knew [that] he had messed up”; and



      The trial court also terminated the parent–child relationship between B.D. and
       2

Mother.


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       •      “[B]eing locked up was good for him because it t[ook] him out of a bad
              situation.”
       The conservatorship worker testified that even though Father had provided

TDFPS with names of family members who could serve as potential placements for

J.D., terminating his parental rights to J.D. would be in her best interest because:

       •      Father cannot do anything to meet J.D.’s present or future needs since
              he is in prison;

       •      His incarceration prevents him from protecting her from present and
              future dangers;

       •      He has not shown that he can provide her with adequate health and
              nutrition;

       •      He has not shown that he can nurture and appropriately discipline her;

       •      He has not shown that he can appropriately guide and supervise her;

       •      He has not shown a full understanding of her needs and capabilities; and

       •      He “chose to commit illegal activities while he knew he had a child and
              so that’s not showing you have the best interest of the child at heart.”
       By the time of trial, a home study of Father’s cousin T.S., a placement he

suggested, had been approved, and TDFPS intended to place J.D. with her with the

goal of adoption. About a month after the termination, the trial court named T.S. as

J.D.’s possessory conservator with the rights to have physical possession of J.D. and

to establish her legal domicile.

                                    DISCUSSION

       In his sole issue, Father challenges the legal and factual sufficiency of the

evidence supporting the trial court’s best-interest finding.

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I.    TDFPS Must Prove Its Case by Clear and Convincing Evidence.

      For a trial court to terminate a parent–child relationship, TDFPS must prove

two elements by clear and convincing evidence: 1) that the parent’s actions satisfy

one ground listed in family code section 161.001(b)(1); and 2) that termination is in

the child’s best interest. Id. § 161.001(b); In re E.N.C., 384 S.W.3d 796, 803 (Tex.

2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence is clear and convincing if it

“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; E.N.C.,

384 S.W.3d at 802.

II.   We Determine Whether the Evidence Is Sufficient to Support
      Termination Findings.

      To determine whether the evidence is legally sufficient to support the trial

court’s best-interest finding, we look at all the evidence in the light most favorable to

the finding to determine whether a reasonable factfinder could form a firm belief or

conviction that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); see

Tex. Fam. Code Ann. § 161.001(b)(2). We assume that the factfinder settled any

evidentiary conflicts in favor of its finding if a reasonable factfinder could have done

so. J.P.B., 180 S.W.3d at 573. We disregard all evidence that a reasonable factfinder

could have disbelieved, and we consider undisputed evidence even if it is contrary to

the finding. Id. That is, we consider evidence favorable to the finding if a reasonable




                                            5
factfinder could, and we disregard contrary evidence unless a reasonable factfinder

could not. See id.

       The factfinder is the sole judge of the witnesses’ credibility and demeanor. In re

J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

       We must perform “an exacting review of the entire record” in determining the

factual sufficiency of the evidence supporting the termination of a parent–child

relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due

deference to the factfinder’s finding and do not supplant it with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide

whether a factfinder could reasonably form a firm conviction or belief that

termination of the parent–child relationship would be in the child’s best interest. Tex.

Fam. Code Ann. § 161.001(b)(2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the

factfinder reasonably could form such a firm conviction or belief, then the evidence is

factually sufficient. C.H., 89 S.W.3d at 18–19.

III.   We May Consider the Holley Factors in Reviewing the Best-Interest
       Finding.

       In determining whether evidence is sufficient to support a best-interest finding,

we review the entire record. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). Evidence

probative of a child’s best interest may be the same evidence that is probative of a

subsection (1) ground.      Id. at 249; C.H., 89 S.W.3d at 28.          In making our

determination, we must employ a strong presumption that keeping a child with a



                                           6
parent serves the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

We also consider the evidence in light of nonexclusive factors that the trier of fact

may apply in determining the child’s best interest:

      (A)    the child’s desires;

      (B)    the child’s emotional and physical needs, now and in the future;

      (C)    the emotional and physical danger to the child now and in the
             future;

      (D)    the parental abilities of the individuals seeking custody;

      (E)    the programs available to assist these individuals to promote the
             child’s best interest;

      (F)    the plans for the child by these individuals or by the agency
             seeking custody;

      (G)    the stability of the home or proposed placement;

      (H)    the parent’s acts or omissions indicating that the existing parent–
             child relationship is not a proper one; and

      (I)    any excuse for the parent’s acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at

249 (stating that in reviewing a best-interest finding, “we consider, among other

evidence, the Holley factors” (footnote omitted)); E.N.C., 384 S.W.3d at 807. These

factors are not exhaustive, and some listed factors may not apply to some cases. C.H.,

89 S.W.3d at 27.     Furthermore, undisputed evidence of just one factor may be

sufficient to support a finding that termination is in the child’s best interest. Id. On




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the other hand, the presence of scant evidence relevant to each factor will not support

such a finding. Id.

IV.   The Evidence Sufficiently Supports the Trial Court’s Best-Interest
      Finding.

      To support his sufficiency argument, Father points only to the evidence that

TDFPS had approved a placement with his cousin T.S. Father argues,

            Public policy dictates that . . . TDFPS should not seek termination
      of parental rights and the trial court should not grant termination of
      parental rights when a child is placed with family and in a protective
      home.
             Here, . . . TDFPS approved placement with the paternal cousin
      and based on those facts, . . . TDFPS failed to satisfy its burden of proof
      that termination is in the best interest of the child.
Father cites no direct authority for his public-policy argument that placing a child with

a family member should insulate a parent from losing his parental rights. Cf. In re

D.O., 338 S.W.3d 29, 38 (Tex. App.—Eastland 2011, no pet.) (rejecting parent’s

assertion that “the Texas Legislature has determined that it is the policy of the State of

Texas to seek a relative placement of the child as a priority to termination of the

parental rights and as a priority to naming the Department as managing conservator”)

(internal quotation marks omitted). We therefore reject Father’s argument. In the

interest of justice, we observe the following:

      •      By the trial, Father had been incarcerated for at least fifteen of J.D.’s
             sixteen months and still had several years left of his sentence;

      •      During his incarceration, Father had done nothing to support J.D.
             physically, emotionally, or financially and would not be able to offer such
             support for some years; and

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      •      TDFPS’s plan to permanently place J.D. with the adoption-motivated
             cousin Father suggested as a potential placement offered Father’s
             relatives some chance to have a relationship with J.D. and J.D. the
             possibility of connecting with older siblings while also giving her the
             stability of a permanent home.
Accordingly, applying the appropriate standards of review, see J.P.B., 180 S.W.3d at

573 (providing legal-sufficiency standard of review); C.H., 89 S.W.3d at 18–19,

28 (providing factual-sufficiency standard of review), we hold that the evidence is

legally and factually sufficient to support the trial court’s best-interest finding, and we

overrule Father’s only issue.

                                    CONCLUSION

      Having overruled Father’s sole issue, we affirm the trial court’s judgment.



                                                       Per Curiam

Delivered: January 10, 2019




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