                                  Fourth Court of Appeals
                                          San Antonio, Texas
                                     MEMORANDUM OPINION

                                              No. 04-19-00566-CV

                                 IN THE INTEREST OF J.E.R., a Child

                       From the 45th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2018PA00940
                         Honorable Richard Garcia, Associate Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice
                  Beth Watkins, Justice

Delivered and Filed: February 12, 2020

AFFIRMED

           Joe 1 appeals an order terminating his parental rights regarding J.E.R., arguing the trial

court’s findings in support of termination are not supported by legally and factually sufficient

evidence. We affirm the order of termination.

                                                  BACKGROUND

           On May 2, 2018, the Texas Department of Family and Protective Services filed an original

petition seeking conservatorship of J.E.R. and for termination of the parental rights of Joe and

J.E.R.’s mother, Amber. J.E.R. was removed from Amber shortly after his birth because “he tested




1
  To protect the identity of the minor child, we refer to the child’s parents by their first names and the child by his
initials. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
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positive for several drugs.” A few days after J.E.R. was born, he was placed with a foster-adopt

family.

           The case proceeded to a bench trial. The trial court admitted the Department’s family

service plans for both parents, and a final judgment in a prior case terminating Joe’s and Amber’s

parental rights to two of their other children. The trial court also heard the testimony of several

witnesses, including the Department’s caseworker Elaine Perez, Joe, J.E.R.’s foster mother Olivia,

and Joe’s brother’s girlfriend, Maria.

           Generally, the undisputed evidence establishes the day J.E.R. was born, in March 2018,

was the only time Joe saw J.E.R. Joe then left San Antonio to work in the City of Pearsall for three

months, then visited his brother, and then went to work in Victoria. In November 2018, Joe was

arrested for possession of methamphetamine. The record does not establish where Joe was arrested,

but it is undisputed Joe was incarcerated in Bexar County. Joe was released on bond, but then was

detained by Immigration and Customs Enforcement until the time of trial.

           After trial, the trial court rendered judgment, ordering the termination of Joe’s and Amber’s

parental rights. The trial court found Joe abandoned and constructively abandoned J.E.R., and

failed to comply with court-ordered provisions of his family service plan. The trial court also found

termination of Joe’s parental rights is in J.E.R.’s best interest. Joe appeals. 2

                                 TERMINATION OF PARENTAL RIGHTS

           To terminate parental rights, the Department must prove by clear and convincing evidence:

(1) one of the predicate grounds for termination in subsection 161.001(b)(1); and (2) termination

is in the child’s best interest. TEX. FAM. CODE §§ 161.001(b), 161.206(a). We review the legal and




2
    Amber did not appeal.


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factual sufficiency of the evidence using well-established standards of review. See id. § 101.007;

In re J.F.C., 96 S.W.3d 256, 263–67 (Tex. 2002).

A. Findings of Grounds for Termination

       The trial court found three predicate grounds for termination of Joe’s parental rights. A

finding of only one ground is necessary. See In re D.J.H., 381 S.W.3d 606, 611–12 (Tex. App.—

San Antonio 2012, no pet.). The Department argues sufficient evidence supports the trial court’s

finding of abandonment under section 161.001(b)(1)(C). See In re T.B.D., 223 S.W.3d 515, 518

(Tex. App.—Amarillo 2006, no pet.) (noting subsection (C) “is among those commonly

characterized as involving the abandonment of a child by a parent.”).

       A finding of abandonment under subsection (C) requires a showing that a parent has

“voluntarily left the child . . . in the possession of another without providing adequate support of

the child and remained away for a period of at least six months.” TEX. FAM. CODE

§ 161.001(b)(1)(C). This provision requires a showing “that the parent did not visit the child for

six consecutive months” from the date the parent voluntarily left the child with another. In re

J.G.S., 574 S.W.3d 101, 115 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). In providing

adequate support of the child, “a parent is only required to make arrangements for adequate support

of the child, not personally send support.” In re R.M., 180 S.W.3d 874, 877 (Tex. App.—

Texarkana 2005, no pet.).

       Joe argues his incarceration alone does not constitute voluntary abandonment. However,

the evidence shows Joe voluntarily left J.E.R. with Amber. Joe testified he saw J.E.R. the day he

was born, but then left the city for work and to stay with his brother. Joe also testified the day of

J.E.R.’s birth was the only time that he saw or visited J.E.R. Perez, the Department’s caseworker,

confirmed Joe was not involved in J.E.R.’s life when J.E.R. was removed and that Joe had had no




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visits with J.E.R. This testimony shows Joe voluntarily left J.E.R. in the possession of another and

remained away for a period of at least six months.

       In his brief, Joe states that while he was incarcerated, he “was unable to work and,

therefore, unable to provide support of his child.” Joe testified he did not provide support during

the time he was working, after the Department filed suit, because he was “waiting for a document

to come in.” The duty of support is continuous and “commensurate with [a parent’s] ability exists

regardless of a court order.” Homfeld v. Pence, 487 S.W.2d 224, 227 (Tex. Civ. App.—El Paso

1972, no writ). Although Joe testified he gave Amber money for herself and J.E.R., he testified he

was aware the Department had removed the child from Amber soon after he was born.

Furthermore, occasional monetary gifts do not provide adequate support. See id. Applying our

standard of review, we hold the evidence supports the trial court’s finding of abandonment under

section 161.001(b)(1)(C). Because a finding of only one predicate ground for termination is

necessary, we need not address Joe’s challenges to the trial court’s findings of other predicate

grounds. See In re D.J.H., 381 S.W.3d at 611–12; TEX. R. APP. P. 47.1.

B. Best Interest Finding

       Joe also argues the trial court’s best interest finding is not supported by sufficient evidence.

In determining the best interest of a child, courts apply the non-exhaustive Holley factors. See

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Those factors include: (1) the desires of

the child; (2) the present and future emotional and physical needs of the child; (3) the present and

future physical danger to the child; (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 held by the individuals seeking custody; (7) the stability of the home of the parent and the

individuals seeking custody; (8) the acts or omissions of the parent which may indicate that the




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existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions

of the parent. Id.

        Perez testified that at the time of trial, J.E.R. was almost fifteen months old. Perez and

Olivia, J.E.R.’s foster mother, testified in detail about how J.E.R. is bonded with his foster family;

J.E.R. is progressing in the care of his foster family; and J.E.R.’s foster family is meeting his basic

needs. It is undisputed that Joe saw J.E.R. only on the day J.E.R. was born. “When children are

too young to express their desires, the fact finder may consider that the children have bonded with

the foster family, are well-cared for by them, and have spent minimal time with a parent.” See In

re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.—San Antonio 2017, pet. denied). Perez and Olivia

testified J.E.R. suffers from night terrors, and his foster parents are able to console him when he

does. Olivia testified she desires to adopt J.E.R.

        The evidence also shows Joe has a history of criminal activity, incarceration, and drug use.

See In re J.J.C.B.R., No. 04-19-00297-CV, 2019 WL 4453734, at *2 (Tex. App.—San Antonio

Sept. 18, 2019, no pet.) (mem. op.) (considering evidence of these types of facts in analyzing

evidence of a child’s best interest). The trial court admitted a judgment ordering termination of

Joe’s parental rights regarding two other children because his drug use endangered those children,

and he either failed to complete a drug program or completed such a program and then relapsed.

Joe also testified that, six months after the underlying lawsuit was filed, he was arrested for

possession of methamphetamine. It is undisputed Joe had no visits with J.E.R. during this case and

only saw J.E.R. once in his lifetime. The evidence further shows Joe left J.E.R. with Amber despite

knowing she was using drugs and homeless. Joe testified he planned to take J.E.R. back to

Honduras if he were deported, but noted there was no definitive time when his immigration status

would be resolved. Applying our standard of review, we hold the evidence supports the trial court’s




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finding that termination of Joe’s parental rights is in J.E.R.’s best interest. See Holley, 544 S.W.2d

at 371–72.

                                           CONCLUSION

       Because sufficient evidence supports the findings necessary for the trial court’s order

terminating Joe’s parental rights, we affirm the order of termination.

                                                   Luz Elena D. Chapa, Justice




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