                                     IN THE
                             TENTH COURT OF APPEALS

                                      No. 10-09-00402-CV

           IN THE INTEREST OF C.L.T. AND R.D.T., CHILDREN




                               From the 66th District Court
                                   Hill County, Texas
                                  Trial Court No. 44946


                              MEMORANDUM OPINION


       C.L.T.’s father appeals the order terminating their parent-child relationship.1 He

contends in three issues that: (1) the court improperly denied his motion for directed

verdict when the Department rested; (2) the court improperly denied his motion for

directed verdict at the close of the presentation of all the evidence; and (3) the evidence

is legally and factually insufficient. We will affirm.

       We address the denial of a directed verdict under the same standard as we

employ for a legal sufficiency analysis. See Willet v. Cole, 249 S.W.3d 585, 589 (Tex.

App.—Waco 2008, no pet.); Wagner v. Edlund, 229 S.W.3d 870, 874 (Tex. App.—Dallas



1
       Neither the mother of C.L.T. and R.D.T. nor the father of R.D.T. perfected an appeal.
2007, pet. denied). Thus, we will address the first two issues simultaneously with the

legal insufficiency component of the third issue.

                                      Standards of Review

        For a legal sufficiency challenge, we view all the evidence in the light most

favorable to the challenged findings to determine whether a factfinder could have

reasonably formed a firm belief or conviction that the findings are true. See In re J.L.,

163 S.W.3d 79, 84-85 (Tex. 2005); In re T.N.F., 205 S.W.3d 625, 630 (Tex. App.—Waco

2006, pet. denied).

        For a factual sufficiency challenge, we “must give due deference” to the

challenged findings. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).

        The court should inquire “whether the evidence is such that a factfinder
        could reasonably form a firm belief or conviction about the truth of the [ ]
        allegations.” “If, in light of the entire record, the disputed evidence that a
        reasonable factfinder could not have credited in favor of the finding is so
        significant that a factfinder could not reasonably have formed a firm belief
        or conviction, then the evidence is factually insufficient.”

Id. (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex.

2002)); accord T.N.F., 205 S.W.3d at 630.

                                        Predicate Ground

        C.L.T.’s father “John”2 was imprisoned before C.L.T. was born and remained

incarcerated until about eight months after trial.3 Thus, he contends that the evidence is

legally and factually insufficient to establish any of the predicate grounds for

2
      To protect the identity of the child, we refer to the father by a pseudonym. See TEX. FAM.
CODE ANN. § 109.002(d) (Vernon 2009); TEX. R. APP. P. 9.8(b)(2).

3
        The bench trial was conducted at the end of September 2009. John testified that his mandatory
release date would be May 29, 2010.


In re C.L.T.                                                                                  Page 2
termination. The Department responds that the evidence is sufficient to establish that

he engaged in conduct which endangered the physical or emotional well-being of C.L.T.

See TEX. FAM. CODE ANN. § 161.001(1)(E) (Vernon Supp. 2010).

        John has two convictions for burglary of a habitation and convictions for

burglary of a vehicle, harassment, and failure to identify as a fugitive. He was placed

on deferred adjudication probation for the first burglary of a habitation in 1993, but his

deferred status was adjudicated after he committed the second burglary of a habitation.

He was sentenced to eighteen years’ imprisonment on the two burglary of a habitation

charges, and he was also sentenced at that time on the burglary of a vehicle charge, but

he did not testify regarding the length of that sentence. The trial court ordered the

sentences to run concurrently.

        John was released on parole in 2001. He was required to attend Alcoholics

Anonymous meetings as a condition of parole.4 C.L.T. was conceived while John was

on parole. The mother told him C.L.T. was his child before his parole was revoked in

2006 for committing a misdemeanor theft.

        John corresponded with Department workers on a fairly regular basis. He also

wrote letters to the child’s mother. But he had no contact with C.L.T. Neither did he

provide any support for C.L.T. even though he knew before returning to prison that the

child was to be born.




4
       Viewed in the light most favorable to the court’s finding, this is evidence that John has a
substance abuse problem.


In re C.L.T.                                                                               Page 3
        Under the applicable standards, the evidence is legally and factually sufficient to

support the court’s finding that John engaged in conduct which endangered C.L.T.’s

physical or emotional well-being. See In re D.W., No. 10-09-00188-CV, 2009 WL 5155890,

at *3 (Tex. App.—Waco Dec. 30, 2009, no pet.).5

                                              Best Interest

        John also argues that the evidence is legally and factually insufficient to prove

that termination is in the best interest of the child.

        We employ the familiar Holley factors when evaluating the sufficiency of the

evidence to support a best-interest finding. See Holley v. Adams, 544 S.W.2d 367, 372

(Tex. 1976); T.N.F., 205 S.W.3d at 632. We may also consider the factors listed in section

263.307 of the Family Code.6 See TEX. FAM. CODE ANN. § 263.307 (Vernon 2009); In re

R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In re S.N., 272 S.W.3d 45, 51 (Tex.

App.—Waco 2008, no pet.).

        Desires of the Child: C.L.T. was almost three at the time of trial and not of

sufficient maturity to express a preference. See S.N., 272 S.W.3d at 51-52.

        Emotional and Physical Needs: C.L.T. has the usual emotional and physical needs

of a toddler. Because of John’s incarceration, John had no resources available at the

time of trial to provide for C.L.T.’s needs. John mentioned his father as a possible

caregiver, but his father was ruled out after an unfavorable home study.                              John

5
        Because we have found the evidence legally and factually sufficient with regard to this predicate
ground for termination, we need not examine the sufficiency of the evidence to support the other
predicate grounds found by the court. See In re S.N., 272 S.W.3d 45, 49 (Tex. App.—Waco 2008, no pet.).

6
       Here, however, neither party relied on these statutory factors at trial or in their appellate briefs,
so we will not address them.


In re C.L.T.                                                                                         Page 4
suggested no other relatives as potential caregivers.        This evidence supports the

conclusion that John is presently unable to provide for C.L.T’s emotional and physical

needs. See In re C.A.J., 122 S.W.3d 888, 893-94 (Tex. App.—Fort Worth 2003, no pet.).

        Emotional and Physical Danger: Similarly, John’s lack of resources and his inability

to provide a home all support the conclusion that C.L.T’s emotional and physical well-

being would be at risk if Johns’ rights were not terminated. Id.

        Parental Abilities: C.L.T. is John’s first child. However, he did testify that he

helped care for his sister’s three young children.       He also testified that he took a

parenting class in prison. Because this would be the first child John would have sole

responsibility to care for and because of the limited evidence regarding the extent of his

knowledge and experience caring for children, the evidence is conflicting on this factor.

See S.N., 272 S.W.3d at 53.

        Available Programs: The record contains no evidence regarding programs

available to John during the remainder of his incarceration or where John intended to

move after being released. He merely testified that he planned to move in with an

unnamed relative after his release until he could get a job and “get on my feet.” The

evidence relevant to this factor supports the best-interest finding. Id.

        Plans for Child: John’s plans for C.L.T. were sketchy at best. He could not say

where (or with whom) he would live after his release. He understood that it would be

difficult to find a job given the current economic climate. The evidence relevant to this

factor supports the best-interest finding. Id.




In re C.L.T.                                                                          Page 5
        Stability of the Home: John had no home at the time of trial and did not know

where he would live when he was released.           The evidence relevant to this factor

supports the best-interest finding. Id.

        Acts and Omissions: Most of the relevant conduct involves John’s participation in

criminal activity and alcohol abuse. He failed to communicate in any fashion with

C.L.T. or support him in any manner. The evidence relevant to this factor supports the

best-interest finding.

        Excuses: John’s primary excuse is that he was imprisoned for all of C.L.T.’s life up

to the time of trial. This evidence does not support the best-interest finding. See In re

D.L.R.M., 84 S.W.3d at 281, 294 (Tex. App.—Fort Worth 2002, pet. denied)

(“incarceration standing alone will not support termination of parental rights”).

        Under the applicable standards, the evidence is legally and factually sufficient to

support the court’s finding that termination of the parent-child relationship between

John and C.L.T. is in C.L.T.’s best interest.

        We overrule the issues presented and affirm the judgment.



                                                         FELIPE REYNA
                                                         Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurs in the judgment to the extent it affirms the trial
court’s judgment. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed October 20, 2010
[CV06]



In re C.L.T.                                                                            Page 6
