                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-08-059-CV


IN THE INTEREST OF
A.S., T.S., AND C.S.,
CHILDREN


                                     ------------

           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                     ------------

                         MEMORANDUM OPINION 1

                                     ------------

      After a bench trial, the trial court terminated Appellant J.S.’s parental

rights to his daughters A.S., T.S., and C.S. In one issue, he contends that the

evidence is factually insufficient to support the trial court’s finding that the

termination of his parental rights is in the children’s best interest. Because the

evidence is factually sufficient to support the finding, we affirm the trial court’s

order of termination.


      1
          … See Tex. R. App. P. 47.4.
      Appellant also raised the issue of the factual sufficiency of the evidence

to support the best interest finding in his timely filed combined statement of

points and motion for new trial. We decline the State’s request to reconsider

our rulings in In re D.W.2 and In re A.J.H.3 and hold that this issue was

sufficiently preserved.

      Termination decisions must be supported by clear and convincing

evidence. 4 Evidence is clear and convincing if it “will produce in the mind of

the trier of fact a firm belief or conviction as to the truth of the allegations

sought to be established.” 5 Due process demands this heightened standard

because termination results in permanent, irrevocable changes for the parent

and child.6

      In reviewing the evidence for factual sufficiency, we must give due

deference to the factfinder’s findings and not supplant the judgment with our


      2
          … 249 S.W.3d 625, 645 (Tex. App.—Fort Worth 2008, pet. denied) (en
banc).
      3
          … 205 S.W.3d 79, 80–81 (Tex. App.—Fort Worth 2006, no pet.).
      4
          … Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (Vernon Supp. 2008).


      5
          … Id. § 101.007 (Vernon 2002).
      6
       … In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).

                                       2
own.7 We must determine whether, on the entire record, a factfinder could

reasonably form a firm conviction or belief that the termination of the parent-

child relationship would be in the best interest of the child.8 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 in the truth of its finding,

then the evidence is factually insufficient.9

      There is a strong presumption that keeping a child with a parent is in the

child’s best interest. 10 Prompt and permanent placement of the child in a safe

environment is also presumed to be in the child’s best interest. 11 The following

factors should be considered in evaluating the parent’s willingness and ability

to provide the child with a safe environment:

               (1) the child’s age and physical and mental vulnerabilities;

               (2) the frequency and nature of out-of-home placements;




      7
          … In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
      8
          … In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
      9
          … H.R.M., 209 S.W.3d at 108.
      10
           … In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
      11
           … Tex. Fam. Code Ann. § 263.307(a) (Vernon 2002).

                                          3
      (3) the magnitude, frequency, and circumstances of the harm
to the child;

       (4) whether the child has been the victim of repeated harm
after the initial report and intervention by the department or other
agency;

       (5) whether the child is fearful of living in or returning to the
child’s home;

      (6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members,
or others who have access to the child’s home;

       (7) whether there is a history of abusive or assaultive
conduct by the child’s family or others who have access to the
child’s home;

       (8) whether there is a history of substance abuse by the
child’s family or others who have access to the child’s home;

       (9) whether the perpetrator of the harm to the child is
identified;

      (10) the willingness and ability of the child’s family to seek
out, accept, and complete counseling services and to cooperate
with and facilitate an appropriate agency’s close supervision;

       (11) the willingness and ability of the child’s family to effect
positive environmental and personal changes within a reasonable
period of time;

      (12) whether the child’s family demonstrates adequate
parenting skills, including providing the child and other children
under the family’s care with:

             (A) minimally adequate health and nutritional care;




                                   4
                     (B) care, nurturance, and appropriate discipline
               consistent with the child’s physical and psychological
               development;

                     (C) guidance and supervision consistent with the child’s
               safety;

                     (D) a safe physical home environment;

                    (E) protection from repeated exposure to violence even
               though the violence may not be directed at the child; and

                    (F) an understanding        of the    child’s   needs   and
               capabilities; and

            (13) whether an adequate social support system consisting
      of an extended family and friends is available to the child. 12

      Other, nonexclusive factors that the trier of fact in a termination case

may use in determining the best interest of the child include:

      (A)      the desires of the child;

      (B)      the emotional and physical needs of the child 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 best interest of the child;




      12
           … Id. § 263.307(b); R.R., 209 S.W.3d at 116.

                                           5
      (F)      the plans for the child by these individuals or by the
               agency seeking custody;

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

      (H)      the acts or omissions of the parent which may indicate
               that the existing parent-child relationship is not a
               proper one; and

      (I)      any excuse for the acts or omissions of the parent.13

      These factors are not exhaustive; some listed factors may be inapplicable

to some cases; other factors not on the list may also be considered when

appropriate.14 Furthermore, undisputed evidence of just one factor may be

sufficient in a particular case to support a finding that termination is in the best

interest of the child. 15 On the other hand, the presence of scant evidence

relevant to each factor will not support such a finding.16

      The evidence shows that A.S., T.S., and C.S. were five, four, and three

years of age respectively at the time of trial in late 2007 and early 2008. They

first entered the State’s care via Dallas County CPS in June 2005 after

allegations that their mother neglected and abused them. (Their mother’s rights



      13
           … Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
      14
           … C.H., 89 S.W.3d at 27.
      15
           … Id.
      16
           … Id.

                                         6
were also terminated; she did not appeal.) Appellant was homeless and a drug

addict at the time of the first removal. While the State offered him services,

he did not participate in any; he did test positive for cocaine. He visited the

children no more than five times during the first eighteen months that the

children were in the State’s care.

      In June 2006, the State placed the children with Appellant’s brother,

B.S., who was later awarded permanent managing conservatorship in December

2006. Appellant saw the girls occasionally when they were with his brother

but did not provide contact information to the State and never attempted to

contact the State during that time.

      In January 2007, B.S. took the children to the Fort Worth CPS office and

relinquished custody. The State could not locate Appellant at that point but

filed a petition for termination of parental rights later that month and served him

with the petition on February 1, 2007. Sh’niqua Alford, a CPS caseworker, met

with Appellant, who was still homeless. She told him that B.S. had returned

the children to CPS and that they were going to remain in foster care; she also

told him about the family service plan. Appellant stated that he wanted to

participate in services but wanted his children to live with B.S. Alford gave

Appellant all of her contact information; Appellant provided none. He did not

contact Alford again until several months later.

                                        7
         On August 31, 2007, Appellant left a message with Alford, stating that

he wanted the children back. He went to her office, and they again discussed

the family plan.       Alford advised him that he should start the services

immediately and take a drug test. He tested positive for cocaine. Appellant

denied using drugs at that time. Appellant visited his children in September

2007. That was the last contact he had with his children.

         On the last day of trial, Appellant reported that he had not used drugs in

the previous three months, he had a job at Burger King, and he had an

apartment. But he had not pursued completing a GED or attending AA or NA

meetings after hitting minor stumbling blocks, he had not pursued any other

type of drug treatment, and the program paying the rent and electricity on his

one-bedroom apartment, Project New Start, would not make payments after

thirty days’ notice if he got physical custody of his children.

         While Appellant testified that his children were happy to see him during

the one visit he made between January 2007 and the trial that ended a year

later, their foster mother, with whom they had lived several months, testified

that the children did not talk about him and cried when confronted with the

possibility of having to live with him—C.S. regressed and began to wet herself

at different times, T.S. was tearful and scared, and A.S. “fed off everybody

else.”

                                          8
      All of the children had made outcries of sexual abuse against B.S., which

were still under investigation, by the time of the last day of trial in January

2008, and there was evidence that all three girls would need therapy to address

that issue. Further, there was evidence that all three girls have trust issues

relating to men.

      Additionally, A.S. has speech problems and a cognitive deficiency. She

needs extra help in school and will continue to need help. She has trouble

processing language and trouble with math. She may need speech therapy and

occupational therapy. Even though she was in kindergarten at the time of trial,

she functioned at the level of a two-year-old. She was also getting neurological

and genetic testing to try to determine what was preventing her from

developing age-appropriately.

      When A.S. first began to live with the foster mother about ten months

before the final day of trial, she was quiet and shy, but at the time of trial she

was excited about school, had friends, and had begun opening up.

      T.S., the middle child, mothers her two sisters.          She is on track

developmentally but has some attachment and bonding issues. When she first

began living with the foster mother, she had nightmares and was afraid to go

back to sleep. At the time of trial, she was thriving.




                                        9
      C.S., the youngest child, has some speech issues.              She used foul

language when she first arrived at the foster mother’s house, but at the time

of trial she used foul language less and would correct herself when she did use

it.

      The children’s therapist testified that the girls need to be placed in a

stable environment. She testified that if they were placed in an unstable or

unstructured environment, they would be “highly dysfunctional, probably not

being able to perform well in school; . . . and [it would be] very difficult for

them to progress in school as other children do.”

      There was evidence that the children had bonded with the foster family,

that the children were happy and well cared for in a stable home, and that they

got a lot of attention and support from their foster family. The evidence also

showed that the foster parents wanted to adopt the children and that such

adoption was the State’s plan.       Further, the foster parents were willing to

maintain the children’s contact with other siblings.

      There was little evidence of Appellant’s parental ability. He admitted that

he had not nurtured or fed the children since 2005 and that he did not meet his

own characteristics of a good father—“[b]eing there, caring for them, feeding,

bathing, nurture.” During the six-week delay between the first and second days

of trial, Appellant still did not visit the children or take a drug test.

                                         10
      Applying the appropriate standard of review and considering the Holley

factors and the statutory factors for evaluating Appellant’s willingness and

ability to provide his children with a safe environment,17 we hold that the

evidence is factually sufficient to support the trial court’s finding that

termination of Appellant’s parental rights is in the children’s best interests. We

therefore overrule his sole issue and affirm the trial court’s order of termination.

                                                   PER CURIAM

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DELIVERED: November 6, 2008




      17
      … See Tex. Fam. Code Ann. § 263.307(b); Holley, 544 S.W.2d at
371–72.

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