Opinion filed August 31, 2011




                                             In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-11-00034-CV
                                        __________

                       IN THE INTEREST OF T.B., A CHILD


                           On Appeal from the 318th District Court
                                   Midland County, Texas
                              Trial Court Cause No. FM 50,489


                            MEMORANDUM OPINION

       The trial court entered an order terminating the parental rights of T.B.’s mother and
father. The father (appellant) has filed a notice of appeal from the termination order. T.B.’s
mother has not filed an appeal. We affirm.
                                              Issues
       Appellant presents seven issues for review. In the first issue, appellant contends that the
trial court abused its discretion by modifying the pretrial scheduling order and allowing
documentary evidence of appellant’s criminal history to be admitted into evidence. In his second
and third issues, appellant challenges the legal and factual sufficiency of the evidence supporting
the finding that he engaged in conduct or knowingly placed T.B. with persons who engaged in
conduct that endangered T.B.’s physical or emotional well-being. In the fourth and fifth issues,
appellant challenges the legal and factual sufficiency of the evidence supporting the finding that
appellant engaged in criminal conduct that resulted in his conviction of an offense and
confinement for not less than two years from the date of the filing of the amended petition. In
the sixth and seventh issues, appellant asserts that the evidence is legally and factually
insufficient to support the finding that termination is in the best interest of T.B.
                                   Admission of Criminal History
       Appellant complains in his first issue of the admission into evidence of State’s Exhibit
No. 2, a certified copy of the judgment from the U.S. District Court, Western District of Texas,
showing that appellant had been convicted on April 28, 2009, of the offense of possession with
intent to distribute cocaine base and had been sentenced to serve a term of seventy months in
prison. Appellant objected to the exhibit because the Department of Family and Protective
Services did not list that document in its exhibit list as required by the trial court’s pretrial
scheduling order, because the document was not provided in discovery, and because it
constituted an unfair surprise to appellant. The Department conceded that it had not provided a
copy to appellant and that it had omitted the document from its exhibit list, but the Department
asserted that the document created no undue surprise and was a certified copy of a public
document available at the clerk’s office. The trial court overruled appellant’s objections and
offered appellant’s attorney time to review the document and to look up any further information
that he might need. Appellant’s attorney declined the offer, stating that he did not need any
additional time.
       Whether to admit or exclude evidence is a matter committed to the trial court’s sound
discretion. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). We
review the trial court’s admission or exclusion of evidence under an abuse of discretion standard.
City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules
or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
TEX. R. CIV. P. 166 authorizes a trial court to modify a ruling regarding a pretrial conference, and
TEX. R. CIV. P. 193.6 permits a trial court to admit evidence not provided during discovery if the
offering party shows either (1) good cause for its discovery failure or (2) the lack of unfair
prejudice or unfair surprise to the opposing party. The trial court has discretion to determine
whether the offering party met its burden. Bellino v. Comm’n for Lawyer Discipline, 124 S.W.3d
380, 383-84 (Tex. App.—Dallas 2003, pet. denied). In the absence of such a showing, the trial



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court may grant a continuance or temporary postponement based upon the new information.
Rule 193.6(c).
       Since one of the grounds upon which the Department specifically sought termination was
appellant’s conviction, the trial court could have determined that the introduction into evidence
of the judgment from that conviction would not unfairly surprise appellant. In addition to the
documentary evidence, appellant and another witness testified regarding appellant’s conviction.
Also, appellant declined the trial court’s offer to postpone the proceeding to allow him time to
prepare for the admission of the judgment. We cannot hold that the trial court abused its
discretion in admitting into evidence a certified copy of appellant’s judgment of conviction.
Appellant’s first issue is overruled.
                                    Legal and Factual Sufficiency
       In his remaining issues, appellant challenges the legal and factual sufficiency of the
evidence to support termination. Termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (Vernon Supp. 2010). To determine on
appeal 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. Section 161.001. In this case, the trial court found that appellant
committed two of the acts listed in Section 161.001(1). The trial court found 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 and had engaged in criminal
conduct that resulted in his conviction of an offense and confinement and inability to care for the
child for not less than two years from the date of the filing of the petition.                    See
Section 161.001(1)(E), (Q). The trial court also found that termination was in the child’s best
interest. See Section 161.001(2).

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       The record shows that both parents were incarcerated at the time of trial but that appellant
participated by phone. The Department became involved with T.B. when he was almost two
years old. T.B.’s aunt called the Department and requested that the Department take T.B. into
custody because she could no longer care for him due to her work schedule and his special needs.
T.B. suffers from Hirschsprung’s disease. T.B. had been left with his aunt when T.B.’s mother
was incarcerated for a drug-related charge. When the Department took custody, appellant had
already been incarcerated for the federal offense of possession with intent to distribute cocaine
base, and T.B.’s mother was in a federal prison awaiting trial for the offense of possession with
intent to distribute five grams or more of cocaine base. T.B. was placed into foster care and then
into the care of a paternal relative whom we will refer to as Barbara.
       The Department filed a petition on January 5, 2010, and an amended petition on
March 31, 2010, requesting termination of appellant’s rights. The Department’s conservatorship
worker, Nedrie Simmons, testified that appellant’s expected release date from prison is
November 10, 2013. That date is well over two years from the date that either petition was filed.
Appellant testified that, if he were to complete a 500-hour drug treatment program – which
would qualify him for twelve months off his sentence – and if he were to receive the full amount
of good-time credits per year, he still would not be out of prison within two years of the
petition’s filing date. Appellant did not know when he would be released. Based on the
evidence before it, the trial court could reasonably have formed a firm belief or conviction that
appellant had engaged in criminal conduct that resulted in his conviction of an offense and
confinement and inability to care for T.B. for not less than two years from the date of the filing
of the petition and the amended petition. See Section 161.001(1)(Q). We cannot hold that this
finding is not supported by clear and convincing evidence. Appellant’s fourth and fifth issues
are overruled.
       With respect to his second and third issues, we note that the evidence introduced at trial
merely showed that appellant had been convicted of the drug-related offense and that he had not
had any contact with T.B. since the Department became involved. Beyond mere incarceration,
however, the evidence does not show that T.B. was endangered by appellant’s conduct. See Tex.
Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex. 1987). Nothing in the record
indicates that T.B. was present during the commission of any offense, that appellant engaged in a
course of conduct that had the effect of endangering T.B.’s physical or emotional well-being, or

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that appellant knowingly placed the child with anyone who engaged in conduct endangering T.B.
See id. Consequently, we sustain appellant’s second and third issues. However, the trial court’s
finding under Section 161.001(1)(Q) is sufficient to support termination as long as termination
was shown to be in T.B.’s best interest. See Section 161.001.
       The next question we must address is whether the best interest finding is supported by
legally and factually sufficient evidence. 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. 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.
       The record shows that T.B. was too young to express any desires but that his physical and
emotional needs were being met by Barbara. T.B. had thrived in her home and had bonded with
her. Trial was held in December 2010. Appellant had not seen T.B. since March 2009 and had
not had any contact whatsoever with T.B. during the Department’s involvement with T.B. T.B.’s
special medical needs were being met by Barbara. Barbara wanted to adopt T.B., and the
Department’s plan for T.B. was adoption by Barbara. Barbara and Simmons both testified that
termination of the parents’ rights would be in T.B.’s best interest. Based on the evidence
presented at trial, the trial court could reasonably have formed a firm belief or conviction that
termination of appellant’s parental rights would be in T.B.’s best interest. We cannot hold that
this finding is not supported by clear and convincing evidence. The evidence is both legally and
factually sufficient to support the finding that termination of appellant’s parental rights is in the
best interest of T.B. Appellant’s sixth and seventh issues are overruled.



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                                       This Court’s Ruling
       We affirm the trial court’s order terminating the parental rights of T.B.’s father.




                                                             TERRY McCALL
                                                             JUSTICE


August 31, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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