Opinion filed April 3, 2014




                                        In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-13-00311-CV
                                     __________

              IN THE INTEREST OF R.T.M., JR., A CHILD


                      On Appeal from the 118th District Court
                                 Howard County, Texas
                              Trial Court Cause No. 48,132


                       MEMORAND UM OPI NI ON
       This is an appeal from an order terminating the parental rights of the mother
and father of R.T.M., Jr. The mother voluntarily relinquished her parental rights
and did not file an appeal. The father timely filed an appeal. We affirm.
                                         Issues
       Appellant presents five points of error on appeal. In the first three points, he
challenges the legal and factual sufficiency of the evidence to support termination.
In the fourth point, Appellant contends that the trial court erred in determining that
the Department of Family and Protective Services should remain the permanent
managing conservator for the child. Appellant complains in his final point of the
admission of hearsay.
                         Termination Standards and Findings
       The termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2013). To
determine if the evidence is legally sufficient in a parental termination case, we
review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if
the evidence is factually sufficient, we give due deference to the finding and
determine whether, on the entire record, a factfinder could reasonably form a firm
belief or conviction about the truth of the allegations against the parent. In re C.H.,
89 S.W.3d 17, 25–26 (Tex. 2002). To terminate parental rights, it must be shown
by clear and convincing evidence that the parent has committed one of the acts
listed in Section 161.001(1)(A)–(T) and that termination is in the best interest of
the child. FAM. § 161.001.
       In this case, the trial court found that Appellant had committed two of the
acts listed in Section 161.001(1)—those found in subsections (D) and (E).
Specifically, the trial court found that Appellant had placed or allowed the child to
remain in conditions or surroundings that endangered the child’s physical or
emotional well-being and that Appellant had engaged in conduct or knowingly
placed the child with persons who engaged in conduct that endangered the child’s
physical or emotional well-being. The trial court also found, pursuant to Section
161.001(2), that termination of Appellant’s parental rights would be in the best
interest of the child.
       With respect to the best interest of a child, no unique set of factors need be
proved.    In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet.
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denied). But courts may use the non-exhaustive Holley factors to shape their
analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include,
but are not limited to, (1) the desires of the child, (2) the emotional and physical
needs of the child now and in the future, (3) the emotional and physical danger to
the child now and in the future, (4) the parental abilities of the individuals seeking
custody, (5) the programs available to assist these individuals to promote the best
interest of the child, (6) the plans for the child by these individuals or by the
agency seeking custody, (7) the stability of the home or proposed placement,
(8) the acts or omissions of the parent that may indicate that the existing parent-
child relationship is not a proper one, and (9) any excuse for the acts or omissions
of the parent. Id. Additionally, evidence that proves one or more statutory grounds
for termination may also constitute evidence illustrating that termination is in the
child’s best interest. C.J.O., 325 S.W.3d at 266.
                                   Evidence at Trial
         At the time of the final hearing, the child was five years old. The child was
small, speech delayed, and aggressive. He had been neglected. The Department
originally removed R.T.M., Jr. from his mother’s care while Appellant was
incarcerated.     Appellant had been convicted of burglary of a habitation and
sentenced to a five-year term of confinement when the child was one year old.
Appellant served four years of that sentence and, thus, did not see the child for four
years.     After Appellant was released from prison and demonstrated adequate
compliance with the service plan, the trial court placed the child with Appellant in
a monitored return.
         The terms of the monitored return required, among other things, that the
child “have no unsupervised or supervised contact with his mother [A.R.] at any
time” and that the mother “is not to be in the home and is not to have phone
contact with” the child. This language was included in the child safety evaluation
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and plan signed by Appellant on May 20, 2013.            The document also stated,
“Failure to comply with this safety plan could result in CPS taking legal actions to
remove [the child] from the home and place him in foster care or in another
relative/fictive kin placement.” Appellant was aware that it was very important
that he not permit the child’s mother to have any contact with the child. The
Department’s caseworker testified that she had informed not only Appellant but
also Appellant’s father and stepmother, with whom Appellant lived at the time, that
the child was not to have any contact with his mother.
      According to the Department, the mother was a major safety concern. The
mother had aggressive behaviors and used drugs. She had previously had other
children removed from her care; had been to prison; had been in and out of jail;
and, at the time of the final hearing, was in jail for stabbing someone.
      The Department’s caseworker, Kristi Saenz, conducted a home visit on
July 18, 2013, and discovered that the mother had been staying in the home with
Appellant and the child. Appellant was not home at the time of Saenz’s visit, but
the mother informed Saenz that she had been staying with Appellant and the child
for several days and that she had had contact with them for several weeks.
Because of the mother’s presence and because of Appellant’s failure to comply
with the safety plan, his inconsistent contact with the Department, his unstable
living arrangements, and his false testimony about where he lived, the Department
removed the child from the monitored return and requested that the trial court
terminate Appellant’s parental rights. Appellant later admitted that the mother had
been in the home with the child.
      Saenz testified that she conducted the home visit because she had concerns
about the living situation based upon Appellant’s testimony at a court hearing the
previous day. Appellant had testified that he was staying in a trailer but that the
child was sleeping in the house. During the home visit, Saenz observed that there
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was a toddler bed in the house but that it was unassembled. The child was not in
the house when Saenz arrived. She was told that the child was next door. Saenz
testified that, while she was there, the child came into the house and visited with
Saenz. The child subsequently ran out of the house toward a trailer on the property
and said that he was “going to see [his] mom.” Saenz then discovered the child’s
mother on the property and spoke with her.
      Saenz testified that, during the monitored return, Appellant failed to
maintain stable housing and employment.          Appellant also failed to perform
services and missed visitations with the child after the child was removed from the
monitored return. Furthermore, when Saenz asked Appellant to take a drug test,
Appellant admitted that he had used cocaine.
      At the final hearing, Appellant testified that he was in compliance with his
parole and denied that he had used any illegal controlled substances since his
release from prison. Appellant also testified that he was out of town at the time of
Saenz’s home visit and that he was unaware that the mother was at the house with
the child.
      After the monitored return, the child was placed in the home of foster
parents with whom he had previously lived in October, November, and December
2012. The placement was a foster-to-adopt home, and the foster parents were
trained and licensed foster parents. The foster mother testified at trial that she and
her husband would like to adopt the child and that the child was adjusting well and
bonding with the foster parents. According to the foster mother, the child was
happy and his behavior had improved. The foster parents had enrolled the child in
play therapy and were in the process of getting him set up for speech therapy.
      The Department’s goal for the child was unrelated adoption by the current
foster parents.   Both Saenz and the child’s guardian ad litem, who is a case
supervisor with CASA of West Texas, testified that it would be in the child’s best
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interest for the parents’ rights to be terminated and for the foster parents to be
permitted to adopt the child. According to the child’s guardian ad litem, relative
placements had been attempted and all viable relatives had been “ruled out.”
                              Endangering Conduct
      The Department produced clear and convincing evidence from which the
trial court could reasonably have formed a firm belief that Appellant had engaged
in conduct or knowingly placed the child with persons who engaged in conduct
that endangered the physical or emotional well-being of the child. See FAM. §
161.001(1)(E). Under subsection (E), the relevant inquiry is whether evidence
exists that the endangerment of the children’s well-being was the direct result of
the parent’s conduct, including acts, omissions, or failures to act. In re D.O., 338
S.W.3d 29, 33 (Tex. App.—Eastland 2011, no pet.). Additionally, termination
under subsection (E) must be based on more than a single act or omission; a
voluntary, deliberate, and conscious course of conduct by the parent is required. In
re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied); In re
K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.). The offending
conduct does not need to be directed at the child, nor does the child actually have
to suffer an injury. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Domestic
violence may constitute evidence of endangerment. Id.; C.J.O., 325 S.W.3d at 265.
Additionally, a parent’s imprisonment is a factor to be considered under subsection
(E) when determining whether the parent engaged in a course of conduct that
endangered a child. See Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533–
34 (Tex. 1987).
      The evidence here showed a course of conduct committed by Appellant that
endangered his child. Appellant committed an offense for which he was convicted
and incarcerated for four years of the child’s life. During the monitored return
after Appellant’s release from prison, Appellant failed to comply with the safety
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plan and demonstrated an inability to keep the child safe. Appellant endangered
the child by permitting the child to have contact with the child’s mother, which was
strictly forbidden by the safety plan signed by Appellant. Based on the record in
this case, we hold that the evidence is legally and factually sufficient to support the
trial court’s finding under Section 161.001(1)(E). Because a finding that a parent
committed one of the acts listed in Section 161.001(1)(A)–(T) is all that is required
under that statute, we need not address Appellant’s first point of error, in which he
contends that the evidence is insufficient to support the trial court’s finding under
subsection (D). See TEX. R. APP. P. 47.1. Appellant’s second point of error is
overruled.
                                     Best Interest
      In his next point of error, Appellant challenges the sufficiency of the
evidence with respect to the trial court’s finding that termination of Appellant’s
parental rights is in the best interest of the child. We hold that, based on the
evidence presented at trial and the Holley factors, the trial court could reasonably
have formed a firm belief or conviction that termination of Appellant’s parental
rights would be in the best interest of the child. See Holley, 544 S.W.2d at 371–72.
We cannot hold that the finding as to best interest is not supported by clear and
convincing evidence. Upon considering the record as it relates to the emotional
and physical needs of the child now and in the future; the emotional and physical
danger to the child now and in the future; Appellant’s failure to comply with the
safety plan; the parental abilities of Appellant and the foster parents; the plans for
the child by the Department; the programs available to assist the foster parents to
promote the best interest of the child, such as speech therapy and play therapy; the
instability of Appellant’s home and employment; the stability of the child’s
placement; acts and omissions indicating that the parent-child relationship was not
a proper one; Appellant’s drug use; and Appellant’s absence from the child’s life
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for more than four years, we hold that the evidence is sufficient to support the
findings that termination of Appellant’s parental rights is in the best interest of the
child. See id. The third point of error is overruled.
                       Appointment of Managing Conservator
      In his fourth point, Appellant argues that the evidence is legally and
factually insufficient to establish that appointment of Appellant as the child’s
managing conservator would significantly impair the child’s physical health or
emotional development and that appointment of the Department as the child’s
managing conservator is in the child’s best interest. See FAM. CODE § 153.131
(West 2014). We disagree.
      The findings necessary to appoint a nonparent as sole managing conservator
need only be established by a preponderance of the evidence.             Lewelling v.
Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). Consequently, we review a trial
court’s conservatorship decision under a less stringent standard of review than the
standard for termination. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). A
conservatorship determination is subject to review for an abuse of discretion and
may be reversed only if that determination was arbitrary and unreasonable. Id. As
we held above, the trial court’s finding that termination of Appellant’s parental
rights would be in the best interest of the child was supported under the higher,
clear-and-convincing burden of proof. The record showed that Appellant had
demonstrated an inability to safely parent the child, that the Department’s goal for
the child was adoption, that the child’s current foster parents wanted to adopt him,
that he was very happy and was thriving in their care, and that there were no viable
options for relative placement. The trial court did not abuse its discretion with
respect to the appointment of the child’s managing conservator. Appellant’s fourth
point of error is overruled.


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                                       Hearsay
      In his final point, Appellant contends that the trial court abused its discretion
in admitting hearsay testimony into evidence at the final hearing. We review a trial
court’s evidentiary rulings for abuse of discretion.      Owens-Corning Fiberglas
Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion
if it acts without reference to any guiding rules or principles or if its actions are
arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985). We must uphold a trial court’s evidentiary ruling if there
is any legitimate basis for the ruling. Owens-Corning, 972 S.W.2d at 43.
      When Saenz and the guardian ad litem were asked some questions about
what the mother told them, Appellant objected that the mother’s out-of-court
statements constituted hearsay. The trial court overruled these objections. Both
Saenz and the guardian ad litem testified that the mother had said that she felt that
it would be in the child’s best interest to remain in his current placement and that it
would not be in the child’s best interest to be returned to Appellant because of
Appellant’s drug use, lack of employment, and lack of housing. Appellant also
complains that the trial court overruled Appellant’s hearsay objection when Saenz
was asked if the mother had told Saenz how long she had been at Appellant’s
residence. Appellant, however, did not object when Saenz was asked other similar
questions; Saenz testified without objection that the mother said that she “had been
staying there for several days to include staying at the house with [the child and
Appellant]” and with them at a different location for a considerable number of
weeks.
      Hearsay is an out-of-court statement offered in court to prove the truth of the
matter asserted. TEX. R. EVID. 801. Hearsay is not admissible except as provided
by statute, the Texas Rules of Evidence, or other rules prescribed pursuant to
statutory authority. TEX. R. EVID. 802. The mother’s out-of-court statements
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regarding Appellant’s drug use, employment, and housing were hearsay when
offered against Appellant.
      However, we conclude that any error in the admission of the complained-of
testimony does not constitute reversible error in this case. In a civil case, a
judgment may not be reversed on appeal based upon a trial court’s error of law
unless the error (1) probably caused the rendition of an improper judgment or
(2) probably prevented the appellant from properly presenting the case on appeal.
TEX. R. APP. P. 44.1(a). Furthermore, the general rule is that an error in the
admission of testimony is deemed harmless if the objecting party permitted the
same or similar evidence to be introduced without objection. Richardson v. Green,
677 S.W.2d 497, 501 (Tex. 1984).
      In the present case, evidence similar to the testimony about which Appellant
complains in his brief was admitted at trial without objection. Additionally, the
complained-of testimony was cumulative of other evidence. Saenz testified that
she observed the mother and the child at Appellant’s residence, that Appellant had
admitted they were there, that Appellant had admitted using cocaine, that Appellant
lacked stable employment, and that Appellant’s housing situation was not stable.
We cannot hold that the admission of the complained-of testimony probably caused
the rendition of an improper judgment or prevented Appellant from presenting his
case on appeal. Appellant’s fifth point of error is overruled.
                                   This Court’s Ruling
      We affirm the trial court’s order of termination.


                                                           MIKE WILLSON
April 3, 2014                                              JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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