             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________
           No. 02-19-00293-CV
      ___________________________

  IN THE INTEREST OF K.C., A CHILD



   On Appeal from the 89th District Court
         Wichita County, Texas
       Trial Court No. 13088-JR-C


Before Sudderth, C.J.; Birdwell and Wallach, JJ.
  Memorandum Opinion by Justice Birdwell
                          MEMORANDUM OPINION

      In two issues, K.C.’s Father1 challenges the legal and factual sufficiency of the

evidence to support the trial court’s finding that terminating his parental rights is in

K.C.’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). We affirm.

                                     Background

      Father has a history of methamphetamine and other drug abuse and also

incarceration. When K.C. was born in September 2016, Father was incarcerated for a

drug offense. After Father was released to a supervised drug-treatment program,

Mother brought the then-infant K.C. to visit him “every week to two weeks.” Upon

Father’s release in summer 2017, he visited K.C. and Mother three to five times a

week after he got off work. But after less than two months, before K.C.’s first

birthday, Father was confined again on federal charges for conspiracy to possess

methamphetamine with the intent to distribute it. He pleaded guilty, was convicted,

and has been incarcerated for that offense ever since. His projected release date is in

2025, but he has been approved for a year-long residential drug-treatment program

beginning in mid to late 2023.

      When K.C. was around sixteen months old, the Department of Family and

Protective Services removed her from Mother’s care after Mother tested positive for




      1
       K.C.’s Mother voluntarily relinquished her rights and did not appeal.


                                           2
methamphetamine. K.C. and her half-brother 2 were placed with Mother’s sister. After

drug-test results for K.C. and her half-brother came back positive for

methamphetamine, the Department filed suit seeking temporary managing

conservatorship of K.C. and, alternatively, termination of Mother’s and Father’s

parental rights.

       After the Department filed suit, Father’s paternity of K.C. was confirmed via

genetic testing. The trial court ordered Mother and Father to work service plans.

Neither completed the items required by their plans: Mother voluntarily relinquished

her rights, and Father could not work many of the required items on his plan because

of his incarceration. But Father was able to complete some parenting-related tasks and

other classes in prison.

       After a bench trial at which Father––who had appointed counsel––appeared

via telephone, the trial court terminated Father’s rights to K.C. On appeal, Father

does not challenge any of the conduct-related grounds for termination, nor does he

contend that we cannot consider evidence pertinent to those findings in this appeal.

See id. § 161.001(b)(1)(D), (E), (Q). Instead, he contends that the evidence is legally

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

                                   Standard of Review

       To determine whether the evidence is legally sufficient in parental-rights-

termination cases, we look at all the evidence in the light most favorable to the

       Father is not the father of K.C.’s half-brother.
       2



                                             3
challenged 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). We assume that the factfinder settled any evidentiary conflicts in favor of its

finding if a reasonable factfinder could have done so. Id. 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 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).

      To determine whether the evidence is factually sufficient in such cases, we must

perform “an exacting review of the entire record,” In re A.B., 437 S.W.3d 498, 500

(Tex. 2014), but give due deference to the factfinder’s finding and 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

the Department proved that termination of the parent–child relationship would be in

the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); 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.

      Although we generally presume that keeping a child with a parent is in the

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

                                            4
analysis is child-centered, focusing on the child’s well-being, safety, and development,

In re A.C., 560 S.W.3d 624, 631 (Tex. 2018).

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

probative of a Subsection (b)(1) ground. Id. at 249; C.H., 89 S.W.3d at 28; see Tex.

Fam. Code Ann. § 161.001(b)(1), (2). We also consider the evidence in light of

nonexclusive factors that the factfinder 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[, if applicable,] by
       the agency seeking custody;

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

       (H) the [parent’s] acts or omissions . . . indicat[ing] 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) (citations omitted); see In re

E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (stating that in reviewing a best-interest

finding, “we consider, among other evidence, the Holley factors” (footnote omitted));


                                             5
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 the other hand, the presence of scant evidence

relevant to each factor will not support such a finding. Id.

                                       Evidence

      Father

      Father testified that he had not been able to support Mother when she was

pregnant with K.C. When he was out of prison in July and August 2017, he helped

Mother out by buying clothes and diapers for K.C. He was not using drugs during

that time. Even though Father saw Mother and K.C. several times a week during that

time, he did not know that Mother was using drugs because Mother told him she was

sober. But he knew Mother had been using drugs before that time, while he was in the

supervised drug-treatment program, and he had told her family.

      Father testified that he could not complete the court-ordered service plan while

in federal custody, but he was engaged in “one-on-one” counseling twice per month.

Father denied that K.C.’s caseworker had ever sent him the service plan. He also

testified that his attorney had never sent him copies of the service plan or discussed it

with him. When confronted with a letter he wrote the caseworker asking how to “go

about cooperating with” his service plan, Father said that he wrote the letter because

he had not received the service plan. Father also testified that although he had

                                            6
attended the adversary hearing, he had not been given the opportunity to complete

the tasks ordered at that time: a substance abuse assessment, psychological and

psychiatric evaluations, and counseling.

      But Father testified that he did complete “packets” that the caseworker had

sent him. While incarcerated, he had taken a parenting class, a drug-education class,

behavior and psychology classes, physical-education classes, and classes on hobbies.

      According to Father, he was trying to be a better father, husband, and son, as

well as a productive member of society who did not succumb to recidivism.

Specifically, the hobbies-related courses––although not directly related to parenting––

showed him a better way of spending his free time rather than doing drugs or getting

in trouble with friends, which would make him a better father. They also showed him

how to spend time with K.C. doing productive things like drawing or teaching her

how to plant things. Physical-education classes helped him get his mind clearer; he

also felt healthier. Father testified that he had learned better parenting skills, such as

how to handle tantrums and how to teach his daughter healthy ways of dealing with

emotions.

      He had not seen K.C. very much and agreed that it was fair to say that she

might not know who he is. When asked how he would be able to parent K.C. while in

prison, Father explained:

      I can write her letters. I can draw her things. Write her and express to
      her my feelings, that I miss her and that -- you know, try to express to
      her how sorry I am and how much I miss her and just let her know that

                                            7
       even though I’m not there that I still love her and I still have her best
       interests in mind and that I want to be able to earn my way back into her
       life and show to her along with the others that are in her life that I can
       be a successful father and a positive role model in her life when I come
       home.

Father admitted that he should have been more involved in K.C.’s life.

       Father had written K.C. a letter “for when she grows up” but had not written

any other letters to her. At first, he said he had not done so because he was instructed

not to contact K.C., but he then admitted that he could have written her letters

through the caseworker as an intermediary. When asked why he had written only one

letter, Father explained, “It’s been, like, a month since she sent me the letter saying it

was okay for me to write through her to [K.C].”

       K.C. will be six or seven when Father is released from incarceration for his

federal offense. He believed she was doing well in her foster placement.

       Once released from prison, Father planned to attempt to be rehired at his old

job or to take a job in “any kind of construction,” using the resources at the Texas

Workforce Commission, temporary agencies, or “any kind of avenues that help[] or

that will try to -- or companies that help felons get jobs.”

       Father had no problem with K.C.’s remaining placed with the foster family

even after his release from prison, but he wanted to be part of her life: “I just want to

be able to earn my way back in to visit and see her and -- and -- and play some part of

role in her life.” Father testified that although K.C.’s foster family “hate[d]” him and

he could give the Department choices for other good placements, he did not want

                                            8
K.C. being “bounc[ed] around” or fought over and would rather her stay with them

where she is safe. Father knew the foster family wanted to adopt K.C., but he thought

“custody could also establish stability too.”

       Even with K.C.’s living with the foster family, Father “[a]bsolutely” believed he

could play a part in K.C.’s life:

       I want to get a job to be able to provide for her, be able to take her
       school clothes shopping, be able to do father activities with her, take her
       fishing or -- or -- or whatever she’s interested in, to support whatever
       hobbies or habits that she has as long as they’re productive, and -- and
       just show her that she deserves a father who cares about her and be able
       to work and support her and -- and just be part of her activities or games
       or cheerleading or anything that she’s involved in.

He expressed an intention to engage in positive parenting, build K.C.’s self-esteem,

discipline consistently, act as a role model, communicate with K.C., and spend time

with her.

       Father has children older than K.C. and admitted that he had not changed his

behavior for them because he was still struggling with his addiction when he had the

opportunity to parent them.

       Father testified what he thought the effect on K.C. would be if his rights were

terminated:

       Abandonment. I believe that she will suffer emotionally thinking that I
       don’t love her if I’m not there. She needs me there to support her and
       show her that she deserves a father. She needs a father figure in her life
       to show her what healthy relationships are supposed to be like, that way
       she doesn’t fall into a mind frame of thinking unhealthy relationships are
       what it’s supposed to be like. Educationally, I’m supposed to be there to


                                            9
      support her. Activities, school, anything that she -- she’s interested in or
      participates in, I’m supposed to be there to support her in those.

      Although Father had been a drug user since adolescence, he did not think he

would use drugs again, stating, “I know for myself that I was ready to quit and that . . .

was the last straw for me and . . . I’m ready to change my life and . . . I’m ready to take

forward steps to change my life and not to return to the situation.” Father had learned

that addiction is a lifelong problem. He wanted to be a licensed chemical-dependency

counselor to help people with the skills he had learned. He also wanted to work with

youth to teach them what he could have avoided.

      Caseworker

      K.C.’s caseworker had been assigned since the adversary hearing in March

2018. She testified that the only service plan items Father had completed, or at least

provided her with documentation showing completion, were the parenting classes she

had sent him. Those classes consisted of reading a monthly parenting article she sent

him, summarizing it, and telling her how he could apply it to K.C. Along with the

article, she sent him a monthly update on the case. She agreed that Father could not

complete many of the items ordered in the service plan because of his incarceration.

       The caseworker notified Father that he could send K.C. unlimited written

correspondence through the Department; the trial court had ordered that he have no

direct contact with K.C. when Father had tried to contact the foster family directly by

phone.


                                            10
      Father was supposed to maintain monthly contact with the caseworker, but

over seventeen months, he had contacted her only nine times. She had included self-

addressed, stamped envelopes for that purpose in her monthly correspondence to

him. Father had sent her one letter and one drawing for K.C. The caseworker did not

believe Father had shown adequate parenting skills despite his incarceration.

      The caseworker was not aware of any steps Father had taken to develop a

relationship with K.C. He had had little to no contact with her since her birth. And

when the case first started, Mother told her that none of her children’s fathers were

involved with them.

      The Department’s permanence plan for K.C. was termination of rights with

adoption. K.C. had lived with her foster family for over a year, and that family

planned on adopting K.C. and her half-brother. The foster mother and father are

Mother’s sister and brother-in-law. They have three biological children. K.C. is

bonded to the family and sees her foster parents as her mother and father.

      The caseworker testified that K.C. would be emotionally endangered if the

foster family adopted her half-brother without also being able to adopt her:

      I believe it’s going to be confusing for her as she gets older, and I think
      it’s always going to have that question of why, why she wasn’t able to be
      adopted and her sibling was, and then the question of her permanency,
      of instability, where is she going to go, because she’s not legally theirs.
      So, that’s not necessarily a stable place if they just acquire [permanent
      managing conservatorship].




                                          11
And if the foster family had to transfer out of state or if the parents got divorced, they

could not take K.C. with them if they had not adopted her.

      According to the caseworker, Father had told her he is bipolar and that there is

a history of bipolar disorder in K.C.’s family. But to the caseworker’s knowledge,

Father did not take advantage of mental health counseling available to Wichita County

jail inmates when he was being held there pending trial of his federal charges.

      K.C. had no special needs. She had received early child-intervention services,

but those had been discontinued because she had met her goals successfully.

Although K.C. had some speech delays, all her needs were being met in her foster

placement.

      Foster mother

      K.C.’s foster mother testified that she, her husband, and her three children

lived in the home with K.C. and her half-brother. They loved her like one of their

own children. Because she and her husband wanted to adopt K.C. and her half-

brother at the same time, they had placed his adoption on hold. Her children called

K.C. and her half-brother “brother[]” and “sister[].” K.C. called the foster parents

“mom” and “daddy.” K.C.’s foster family and half-brother did “everything” together

as a family. They went to the park and Chuck E. Cheese, took vacations, and played

games together. The foster parents had also maintained contact with K.C.’s other

brothers and sisters.

      Both foster parents had stable employment.

                                           12
       Before coming into the foster parents’ care, K.C. would overfeed herself; she

did not know how to use utensils, but she had learned how to do so. K.C.’s speech

had improved. She had been weaned from a bottle to a cup and was potty trained.

According to the foster mother, K.C. smiled a lot more and acted like a kid.

       The foster mother had gotten two calls from Father. He wanted to know how

K.C. was, but she told him to talk to the caseworker because the court had ordered

him not to contact K.C. She testified that he had threatened to take K.C. to Hawaii

upon his release from prison.

       K.C.’s foster mother testified that if the court did not order adoption, K.C.

would be left in limbo. She did not want K.C. to feel different from the other children

in the house. She did not believe granting Father any type of custody would be in

K.C.’s best interest because he had never been there for K.C., and she wanted K.C. to

grow up with a father in the home. She was scared that after Father was released from

prison, he could try to modify custody and take K.C. away. She also believed it would

negatively impact K.C. to have her father pop back into her life. She believed it was in

K.C.’s best interest to terminate Father’s rights.

                                        Analysis

       Although the Holley factors are not exclusive, in this case, they provide a more

than adequate roadmap for analyzing the evidence.




                                            13
      Child’s desires

      K.C. was not old enough to articulate her desires. The evidence shows that she

likely does not know who Father is and had not had any interaction with him for

almost two years. She was bonded to her foster family, where she lived with her

biological half-brother and was considered a sibling of the foster parents’ children.

She called her foster parents mom and daddy. This evidence weighs in favor of

termination. See, e.g., In re R.H., No. 02-19-00273-CV, 2019 WL 6767804, at *4 (Tex.

App.––Fort Worth Dec. 12, 2019, no pet.) (mem. op.); In re A.R., No. 02-18-00311-

CV, 2019 WL 1186963, at *7 (Tex. App.––Fort Worth Mar. 14, 2019, pet. denied)

(mem. op.); In re K.O., 488 S.W.3d 829, 840 (Tex. App.—Texarkana 2016, pet.

denied); In re U.P., 105 S.W.3d 222, 230 (Tex. App.––Houston [14th Dist.] 2003, pet.

denied) (op. on reh’g).

      K.C.’s emotional and physical needs, and emotional and physical danger
      to K.C, at time of trial and in the future

      Father contends that this factor weighs in his favor because K.C. is happy and

healthy, has no special needs, and is in no danger from him due to his incarceration.

But the evidence also shows that Father’s drug use led to choices that resulted in his

chronic, and eventually long-term, incarceration and that because of that

incarceration, he was unable to protect K.C. from the effects of Mother’s drug use.

He will not be able to provide financial support for K.C. during his incarceration, and

he would have very limited contact with her. Moreover, he will not be released until at


                                          14
least 2023, at which time he will remain unavailable to parent K.C. while he is in a

residential treatment program. Naming the Department permanent managing

conservator during Father’s incarceration, especially considering his lack of an

established bond with K.C., interferes with the goal of achieving permanence and

stability for her.

       K.C.’s foster family wanted to adopt her. They were also going to adopt her

brother. K.C. was part of the family, and they did not want her to feel different from

any other siblings in the house. Both foster parents had steady employment and are

experienced parents. The evidence supports the conclusion that they had been

meeting, and would be able to meet, K.C.’s physical and emotional needs. See, e.g., In re

J.B., No. 02-18-00034-CV, 2018 WL 3289612, at *6 (Tex. App.––Fort Worth July 5,

2018, no pet.) (mem. op.); In re R.A.G., 545 S.W.3d 645, 651–52 (Tex. App.—El Paso

2017, no pet.); cf. J.O.A., 283 S.W.3d at 346 (“[E]vidence of improved conduct,

especially of short[]duration, does not conclusively negate the probative value of a

long history of drug use and irresponsible choices.”). Thus, this factor weighs against

Father.

       Parenting abilities of persons seeking custody and available programs

       Father acknowledges that the evidence shows that his parenting skills are

“questionable,” but he argues that it also shows he has “learned invaluable lessons

throughout the pendency of the case.” Although Father had taken some classes while

in prison and was able to articulate ways he could be a better parent to K.C., he had

                                           15
not demonstrated an ability to do so while not incarcerated. He had not chosen to

regularly write letters to K.C., nor had he shown a willingness to work toward

establishing a bond with her through approved channels. And he threatened to take

her away from the foster family. Moreover, the evidence shows that he has older

children and that he was not able to maintain a drug- and crime-free lifestyle so that

he could parent those children. The trial court could have concluded from this

evidence that although Father may have developed a desire to act in K.C.’s best

interest, he had yet to demonstrate an ability to do so.

      Conversely, the evidence showed that the foster parents had biological children

of their own, were planning to adopt both K.C. and her half-brother, and could

support her financially as one of their own children. This factor thus weighs against

Father. See, e.g., R.H., 2019 WL 6767804, at *5; In re R.S., No. 02-18-00127-CV, 2018

WL 4183117, at *10–11, *15 (Tex. App.––Fort Worth Aug. 31, 2018, no pet.) (mem.

op.); In re J.L.C., 582 S.W.3d 421, 434 (Tex. App.––Amarillo 2018, pet. denied); In re

G.M.G., 444 S.W.3d 46, 60 (Tex. App.––Houston [14th Dist.] 2014, no pet.).

      Plans for K.C. and stability of proposed adoptive home

       Father acknowledges that he is not currently able to provide a stable home for

K.C. because of his incarceration. But he contends the evidence regarding his future

plans for her is favorable to him because it shows that (1) he wants K.C. to live with

the foster parents until he could establish a bond with her and provide for her and

(2) his plan is to provide her with emotional support during his incarceration by

                                           16
sending her letters, drawing her pictures, and telling her she has a father who made

bad choices but who nevertheless loves her. When he is released, he plans to get a job,

provide for K.C., and visit and support her while she lives with her foster family.

      But Father acknowledged that the foster parents took care good care of and

always provided for their children. He also acknowledged that although stability was

important for K.C., he thought stability could occur via his plans for her.

      The foster mother testified, conversely, that all of the children behaved like

biological siblings, considered each other as such, and that they did not want K.C. to

feel different if she were not adopted but her half-brother was. Additionally, Father

had threatened to take K.C. away from the foster family to Hawaii. This adds to the

concern for stability upon Father’s release. And, contrary to Father’s concerns,

adoption of K.C. by the foster parents would provide K.C. with a permanent father–

daughter relationship.

      Both of these factors weigh against Father. See, e.g., In re A.M., 02-19-00023-

CV, 2019 WL 3334420, at *15–16 (Tex. App.—Fort Worth July 25, 2019, no pet.)

(mem. op.) (“The fact finder may compare the parent’s and the Department’s plans

for the children and determine whether the plans and expectations of each party are

realistic or weak and ill-defined.”); In re J.D., No. 02-18-00255-CV, 2019 WL 150292,

at *3 (Tex. App.––Fort Worth Jan. 10, 2019, no pet.) (mem. op.); In re I.L., No. 02-18-

00206-CV, 2018 WL 5668813, at *7 (Tex. App.––Fort Worth Nov. 1, 2018, no pet.)

(mem. op.).

                                           17
      Acts or omissions and any excuses

      Father concedes that evidence of his choices leading to his incarceration weighs

against him. But he contends that most of those choices were made before K.C. was

even born and that “to pre[]maturely sever” her relationship with him––“when he has

worked so hard to improve his ability to be a good father”––would not be in K.C.’s

best interest. But not only could the trial judge appropriately consider evidence of

Father’s acts and omissions occurring before K.C.’s birth, that evidence shows that

Father’s choices resulted in his long-term incarceration that continued to negatively

affect K.C. at the time of trial. See, e.g., J.O.A., 283 S.W.3d at 345; J.B., 2018 WL

3289612, at *5–6. Moreover, not all of the evidence pertinent to the best-interest

analysis relates solely to those choices. Accordingly, the timing of Father’s acts and

omissions does not change that this factor nevertheless weighs against him.

      Majority of evidence weighs against Father

      Father argues that the evidence that he has learned about being a good parent

while in prison, coupled with his strong desire to maintain a parent–child bond with

K.C., mitigates the evidence that the best way for her to have permanency is for his

rights to be terminated. But the trial court’s consideration, and our review, of the

evidence must focus on what is best for the child, not the parent. See A.C., 560

S.W.3d at 631. The evidence shows that depriving K.C. of a stable, loving, permanent

family for several years based on the mere possibility that Father will be able to

establish a healthy relationship with K.C. from prison and thereafter apply the skills

                                         18
he has learned upon his release, without subjecting her and her potential adoptive

family to undue fear that he will disrupt the relationship she has established with

them, would not be in K.C.’s best interest. See J.B., 2018 WL 3289612, at *5–6.

       We hold that the evidence is both legally and factually sufficient to support the

trial court’s best-interest finding; therefore, we overrule Father’s two issues.

                                       Conclusion

       Because we have overruled Father’s two issues, we affirm the trial court’s

judgment.

                                                        /s/ Wade Birdwell

                                                        Wade Birdwell
                                                        Justice

Delivered: January 23, 2020




                                            19
