                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-056-CV


IN THE INTEREST OF D.F., A CHILD


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

           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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

                          MEMORANDUM OPINION 1

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

                                   I. INTRODUCTION

      In two points, Appellant David F. complains that the evidence was legally

and factually insufficient to support the termination of his parental rights. We

affirm.

                      II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      On January 25, 2000, Yvonne F. gave birth to D.F. in North Carolina

while married to David. After she was born, D.F. lived with Yvonne but spent


      1
          … See T EX. R. A PP. P. 47.4.
nearly every day with David until she turned three years old. While in North

Carolina, David was convicted of two misdemeanors, a 2003 conviction for

possession of stolen property and a conviction in either 2003 or 2004 for the

assault of his sister. David served approximately fifty-five days for the assault.

Further, David admitted that he most likely used drugs in some capacity during

the time that he had contact with D.F. but maintained that he last used drugs

in 2004.

      In late 2003, Yvonne gave three of her children, but not D.F., to foster

care in North Carolina. Around that same time, North Carolina officials asked

D.F.’s godmother, Shelly F., if she would take care of D.F. D.F. then moved

out of Yvonne’s home and in with Shelly for approximately six months before

returning to live with Yvonne.

      In 2004, Yvonne filed for divorce from David based on the ground that

they had been separated for at least one year. David testified that he and

Yvonne were not actually separated but that he did not contest the allegations

because he had no knowledge of the divorce proceedings. David stated that

he found out about the divorce in February 2007, only a week before the trial.

David further testified that the couple was officially divorced on May 14, 2004,

after notice was published in the newspaper for three weeks with no response.

      Yvonne’s three children that had been in foster care returned to live with

                                        2
Yvonne in late 2004. Shortly thereafter, Yvonne left North Carolina for Texas

with all four of her children and her then-boyfriend Michael J. David last visited

D.F. in 2004 before she left for Texas. Eventually the children, except for D.F.,

came back to live in North Carolina. At some point after Yvonne, Michael, and

D.F. moved to Texas, David moved from North Carolina to California, where in

2005 he was convicted of the felony offense of unlawful sex with a minor.

The female minor was seventeen years old at the time of the offense.

      On October 31, 2005, Denalyn Allen, a Child Protective Services (“CPS”)

investigator,   received   allegations   of   Yvonne   and   Michael’s   neglectful

supervision and drug use and initiated an investigation.2 Allen investigated the

household on November 3, 2005, and found that the house had no electricity

and very little food. She asked D.F. about the alleged domestic violence and

drug use in the home, and D.F. stated that sometimes when her “mom and

dad” would fight, they would throw things. D.F. also told Allen that Michael

smoked drugs in a blue pipe that “looked like clouds.”          Both Yvonne and

Michael admitted to using drugs but failed to take drug tests requested by CPS.

Based on the investigation, CPS placed D.F. with Michael’s mother; however,

the mother returned D.F. four days later because she was going out of town


      2
      … Allen testified that there had been a previous case at some point, in
which Yvonne had been referred to Family Services, but as she recalled, the
case was closed because Yvonne moved back to North Carolina.
                                      3
and could not take D.F. with her. At this time, CPS placed D.F. in foster care.

Subsequently, both Yvonne and Michael were arrested, apparently for drug-

related offenses.   On November 22, 2005, Texas Department of Family

Protective Services (“TDFPS” or “CPS”) filed a petition to terminate both

Yvonne and Michael’s parental rights.

      In either October or November 2005, Michael’s mother contacted David

and informed him that CPS had initiated an investigation regarding Yvonne and

D.F. She also gave him a number to call CPS in Texas. David initially testified

that he found out that “CPS” had initiated an investigation of Yvonne but later

said that he meant to say that it was “social services” that had initiated the

investigation.   David admitted that he did not know whether there was a

difference between the two in Texas and that he “put it all the same.”        In

response to learning of the investigation, David tried to call Yvonne’s mother

and made one phone call to Dallas County CPS. He claims that CPS told him

that “they had nothing on [Yvonne]” and that he made no efforts to locate D.F.

because he was “tossed out.”

      In August 2006, CPS learned that David might be D.F.’s father, and

Pamela Gillinger, a CPS caseworker, called David to inform him that D.F. had

been placed in custody of CPS. David was still under probation in California for

his felony conviction when he found out that CPS had custody of D.F. Because

                                        4
there was some confusion regarding whether David was D.F.’s father, Gillinger

asked David to submit to a paternity test. Although David said that he would

submit to the test, he had failed to do so as of the time of trial. However,

David acknowledged in open court that he was D.F.’s father.

      Gillinger testified that she also mentioned to David that “services” needed

to be completed but that she never specifically told David about the service

plan that she had created for him. David testified, however, that Gillinger never

mentioned services during their conversations. Gillinger mentioned that she

talked to David a second time in August, but she did not state what was

discussed during that communication.

      After the two initial phone conversations between Gillinger and David,

Gillinger attempted to call David in September 2006 but learned at that time

that David no longer had the same phone number. David testified that while his

phone number may have changed, his physical address remained the same and

that mail sent to his California address was being forwarded to North Carolina,

where he has been since December 2006. Gillinger never spoke with David

again until one week before trial in February 2007, when Gillinger finally made

contact with him by phone in North Carolina. David stated that he quit calling




                                       5
Gillinger because she failed to provide him with paperwork that he had

requested.3

      On August 21, 2006, TDFPS amended its petition to terminate parental

rights to include David as the presumed father. In September 2006, after he

found out that CPS had taken custody of D.F., David was charged with

possession of methamphetamine in California, and at the time of trial, there was

an active arrest warrant out for David concerning this offense. In October

2006, CPS placed D.F. with Pamela F., a dual-licensed foster parent.           In

December 2006, after David finished serving his probation for the felony

conviction in California, he traveled by bus back to North Carolina to visit his

other three children. Although David traveled through Texas on his way to

North Carolina, he failed to make any contact with D.F., who was living in

Texas at the time.

      At the bench trial, based on section 161.001(2) of the Texas Family

Code, the trial court found that it was in the best interest of D.F. to terminate

the parental rights of Yvonne, Michael, and David. See T EX. F AM. C ODE A NN.


      3
        … David testified that he called Gillinger in September 2006 to discuss
the date of the hearing for this case, which conflicts with Gillinger’s testimony
stating that the two talked twice in August, but not in September. It is not
clear from the record whether this second phone call that David testified to is
the same second phone call that Gillinger referred to as being made in August.
In any event, after the two initial conversations, Gillinger attempted to call
David in September with no success.
                                        6
§ 161.001(2) (Vernon Supp. 2007). Additionally, with respect to David, the

trial court made the following findings by clear and convincing evidence based

on section 161.001(1):

      !     David knowingly placed or knowingly allowed D.F. to remain

            in conditions or surroundings that endangered the physical or

            emotional well-being of D.F;

      !     David engaged in conduct or knowingly placed D.F. with

            persons who engaged in conduct that endangered the

            physical or emotional well-being of D.F.;

      !     David constructively abandoned D.F., who has been in the

            permanent or temporary managing conservatorship of TDFPS

            or an authorized agency for not less than six months and: (1)

            TDFPS or an authorized agency made reasonable efforts to

            return D.F. to David, (2) David did not regularly visit or

            maintain significant contact with D.F.; and (3) David

            demonstrated an inability to provide D.F. with a safe

            environment.

David now appeals the trial court’s findings under subsections (1) and (2) of

section 161.001 of the Texas Family Code.




                                      7
                                    III. W AIVER

      TDFPS argues that David has waived his sufficiency arguments because

he failed to file a statement of points with the trial court. See T EX. F AM. C ODE

A NN. § 263.405(i) (Vernon Supp. 2007). TDFPS further argues that David’s

motion for new trial does not constitute a valid statement of points because it

is too vague to satisfy the requirement that the statement of points be

“sufficiently specific” to preserve error for appeal.    See id.    However, in a

recent en banc decision, this court held that family code section 263.405(i) is

void as a violation of the separation of powers provision of the Texas

Constitution. See In re D.W., No. 02-06-00191-CV, 2008 WL 467328, at *12

(Tex. App.—Fort Worth Feb. 19, 2008, no pet. h.). We are bound to follow our

own precedent, so we hold that David’s sufficiency arguments are not waived

and proceed to the merits of David’s appeal.

                      IV. T ERMINATION OF P ARENTAL R IGHTS

      A   parent’s   rights   to   “the   companionship,    care,   custody,   and

management” of his or her children are constitutional interests “far more

precious than any property right.”        Santosky v. Kramer, 455 U.S. 745,

758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547

(Tex. 2003). “While parental rights are of constitutional magnitude, they are

not absolute. Just as it is imperative for courts to recognize the constitutional

                                          8
underpinnings of the parent-child relationship, it is also essential that emotional

and physical interests of the child not be sacrificed merely to preserve that

right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the

State seeks not just to limit parental rights but to end them permanently—to

divest the parent and child of all legal rights, privileges, duties, and powers

normally existing between them, except for the child’s right to inherit. T EX.

F AM. C ODE A NN. § 161.206(b) (Vernon Supp. 2007); Holick v. Smith, 685

S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings and

strictly construe involuntary termination statutes in favor of the parent. Holick,

685 S.W.2d at 20–21; In re E.M.N., 221 S.W.3d 815, 820 (Tex. App.—Fort

Worth 2007, no pet.).

      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subdivision (1) of the statute and must also prove that termination

is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001 (Vernon

Supp. 2007); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must

be established; termination may not be based solely on the best interest of the

child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987).




                                        9
      A.    Standard of Review

      Termination of parental rights is a drastic remedy and is of such weight

and gravity that due process requires the petitioner to justify termination by

clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);

In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls

between the preponderance standard of ordinary civil proceedings and the

reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d

846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth

2006, pet. denied). It is defined as the “measure or degree of proof that 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.” T EX. F AM. C ODE A NN. § 101.007

(Vernon 2002).

      In reviewing the evidence for legal sufficiency in parental termination

cases, we must determine whether the evidence is such that a fact-finder could

reasonably form a firm belief or conviction that the grounds for termination

were proven.     In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).           We must

review all the evidence in the light most favorable to the finding and judgment.

Id. This means that we must assume that the fact-finder resolved any disputed

facts in favor of its finding if a reasonable fact-finder could have done so. Id.

We must also disregard all evidence that a reasonable fact-finder could have

                                        10
disbelieved. Id. We must consider, however, undisputed evidence even if it is

contrary to the finding. Id. That is, we must consider evidence favorable to

termination if a reasonable fact-finder could, and disregard contrary evidence

unless a reasonable fact-finder could not. Id.

      We must therefore consider all of the evidence, not just that which favors

the judgment. Id. But we cannot weigh witness credibility issues that depend

on the appearance and demeanor of the witnesses, for that is the fact-finder’s

province. Id. at 573, 574. And even when credibility issues appear in the

appellate record, we must defer to the fact-finder’s determinations as long as

they are not unreasonable. Id. at 573.

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

deference to the fact-finder’s findings and not supplant the judgment with our

own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine

whether, on the entire record, a fact-finder could reasonably form a firm

conviction or belief that the termination of the parent’s parental rights would

be in the best interest of the child. C.H., 89 S.W.3d at 28. If, in light of the

entire record, the disputed evidence that a reasonable fact-finder could not have

credited in favor of the finding is so significant that a fact-finder could not

reasonably have formed a firm belief or conviction in the truth of its finding,

then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108. If we

                                       11
reverse on factual sufficiency grounds, then we must detail in our opinion why

we have concluded that a reasonable fact-finder could not have credited

disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266–67.

      B.    Conduct Findings

      In his first point, David complains that the evidence is legally insufficient

to support the trial court’s three findings under section 161.001(1)(D), (E), and

(N) of the Texas Family Code. 4

      We first consider whether the evidence was legally sufficient to support

the finding that David engaged in conduct or knowingly placed D.F. with

persons who engaged in conduct that endangered the physical or emotional

well-being of D.F. See T EX. F AM. C ODE A NN. § 161.001(1)(E). TDFPS argues

that while imprisonment, alone, is insufficient to demonstrate endangerment,

it is a factor to be considered along with other evidence regarding David’s past

drug use, his three convictions, and his current arrest warrant for possession

of methamphetamine to demonstrate a continuing course of conduct that has

had the effect of endangering D.F.’s well-being. David argues, however, that



      4
        … In his motion for new trial and in his brief on appeal, David phrases his
first point as a challenge to the legal sufficiency of evidence regarding the best
interest finding under section 161.001(2) of the Texas Family Code. However,
in the argument section of his brief under this first point, David actually
challenges the legal sufficiency of the conduct findings under section
161.001(1).
                                         12
the evidence regarding his history of criminal conduct and his 180 days of

imprisonment is insufficient to support a finding that he endangered D.F.’s well-

being because it does no more than show that David left D.F. “adrift in the

world.” See In re T.H., 131 S.W.3d 598, 604 (Tex. App.—Texarkana 2004,

pet. denied) (rejecting argument that mere imprisonment or the commission of

an act that results in imprisonment leaves the child “adrift in the world,” and

thus, constitutes endangerment.).

      “Endanger” means more than a threat of metaphysical injury or the

possible ill effects of a less-than-ideal family environment. Boyd, 727 S.W.2d

at 533. The term means to expose to loss or injury, to jeopardize. Id. The

relevant inquiry is whether evidence exists that the endangerment of the child’s

physical or emotional well-being was the direct result of the parent’s conduct,

including acts, omissions, or failures to act.          T EX. F AM. C ODE A NN.

§ 161.001(1)(E); In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth

2003, no pet.).

      Termination under section 161.001(1)(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 R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort

Worth 2004, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex.

App.—Eastland 1999, no pet.). However, it is not necessary that the conduct

                                       13
be directed at the child or that the child actually suffer injury.      Boyd, 727

S.W.2d at 533. The specific danger to the child’s well-being may be inferred

from parental misconduct standing alone. See id.; R.W., 129 S.W.3d at 738.

      Mere imprisonment, alone, does not constitute a course of conduct that

endangers the emotional or physical well-being of a child, but it is a factor to

be considered in the determination. See Boyd, 727 S.W.2d at 533–34. As a

general rule, conduct that subjects a child to a life of uncertainty and instability

endangers the physical and emotional well-being of a child. R.W., 129 S.W.3d

at 739. Drug use and its effect on a parent’s life and his ability to parent may

establish an endangering course of conduct.         Id.   Further, evidence of an

inappropriate sexual relationship with a minor may also be considered in

determining if the parent engaged in conduct that endangered the emotional or

physical well-being of the child. Id.

      While the evidence does not illustrate the daily activities that David and

D.F. shared together, David’s testimony provides the strongest context for their

interaction.   David stated that for the first three years, he and D.F. were

together nearly every day. He also said that after the first three years, Yvonne

ended David’s visitation with D.F. David last saw D.F. in August 2004.

      We first look to David’s criminal history to determine whether it supports

the endangerment finding.      The evidence shows that in 2003, David was

                                        14
convicted of possession of stolen goods, and in either 2003 or 2004, he was

convicted for the assault of his sister. David testified that his sister hit him

with a baseball bat and that he pushed her away; he could not recall whether

his sister was also convicted of assault. David was imprisoned for fifty-five

days following the assault conviction. Both of these crimes were committed

during or around the time David and D.F. maintained substantial contact;

however, while in California, David was convicted of the felony offense of

unlawful sex with a minor. The minor was a seventeen-year-old girl who he

claimed lied to him about her age. David testified that he “took a plea” on the

charge so that he could work and pay child support.

      David served probation for nearly two years for the unlawful sex with a

minor conviction, which precluded him from leaving California and visiting D.F.

David stated that he served seventy-five days in jail by choice to shorten the

total probation period. While the evidence does not specifically show how

much time David served for each offense, David testified that since 2004, he

has served a total of 180 days in prison.

      David admitted at trial that he had an active warrant out for his arrest in

California for possession of methamphetamine, which occurred in September

2006, after he found out that CPS had custody of D.F. David stated that if he

were to be convicted of this offense, it would be his second felony offense in

                                       15
California. He asserted that he was neither using nor selling methamphetamine

but that the police charged him with the offense because his girlfriend’s

methamphetamine pipe was on his side of the vehicle.

        Although   imprisonment    is   insufficient,   by   itself,   to   support   an

endangerment finding, the court was entitled to consider David’s 180 days’

imprisonment and his probation in its determination. Further, though not all of

David’s misconduct occurred during his time with D.F., the court could have

determined that his actions, which began in North Carolina and continued

through his time in California and after he found out about D.F.’s situation with

CPS, constituted a deliberate course of conduct that had the effect of

endangering D.F.’s well-being.      See R.W., 129 S.W.3d at 738, 743–44.

(holding that the appellant endangered the child under 161.001(1)(E) based

mainly on conduct that occurred before the child’s birth and despite the fact

that he never had custody of the child at any time other than one hour of

supervised visitation per week).

        The court could have also considered the evidence of David’s admitted

past drug use around the time he was connected with D.F. to support its

finding. When asked whether he was using drugs during a specific period of

time in those first three years of contact with D.F., David said that he “probably

was.”     David stated that he last used drugs three years ago— around

                                         16
2004—which was the last time he spent with D.F. Gillinger testified that part

of the reason she concluded that it was in D.F.’s best interest to terminate the

parental rights of all three parents was due to drug use. Later, when asked

whether she had any personal knowledge that David abused drugs, Gillinger

said, “other than records from North Carolina for CPS, no.”            The court’s

function, as the trier of fact, is to judge the credibility of the witnesses, assign

the weight to be given their testimony, and resolve any conflicts or

inconsistencies in the testimony. R.W., 129 S.W.3d at 742. Thus, the court

was entitled to believe that David had not quit using drugs in light of his active

arrest warrant in California for methamphetamine possession.            See id. at

742–43.

      We also find it pertinent that David failed to act when informed of CPS’s

involvement with D.F. First, Michael’s mother informed David that a social

service organization in Texas was investigating Yvonne and D.F., and David

responded by attempting to call Yvonne’s mother and making one phone call

to Dallas before giving up completely on any search for D.F. David points to no

evidence that would suggest that he did anything more to check on D.F.’s

welfare. Indeed, when asked what other efforts he had made to locate D.F.

following the conversation with Michael’s mother, he said, “none.” Morever,




                                        17
David found out in August 2006 5 that CPS had taken custody of D.F., and

since that time, he has failed to keep in touch with Gillinger to inform CPS of

his whereabouts, which Gillinger claimed precluded her from implementing the

service plan for David. David’s failure to act when his daughter’s welfare was

clearly in jeopardy is evidence that demonstrates a conscious omission to act,

which has the effect of endangering D.F. by subjecting her further to a life of

instability.

       The evidence presented demonstrates a deliberate course of conduct from

which a reasonable trier of fact could have found an endangerment to D.F.’s

emotional and physical well-being. Specifically, the court could have relied on

evidence presented with respect to David’s failure to act, drug use, physical

violence toward a family member, imprisonment, probation, and sexual

misconduct with a minor to support its finding that David’s actions subjected

D.F. to a life of uncertainty and instability. Thus, when viewing all the evidence

in the light most favorable to the judgment, we hold that the evidence was

legally sufficient to support the court’s finding that David has engaged in a

deliberate course of conduct that has endangered D.F.’s well-being.

       Because we have found the evidence legally sufficient to support the trial


       5
        … Gillinger testified that David was aware that D.F. was in foster care
in spring of 2006, but David testified that he found out that D.F. was in care
of CPS in August 2006, when Gillinger first contacted him.
                                        18
court’s finding under subsection (E), we need not address David’s complaint

regarding the sufficiency of the findings under subsections (D) and (N). See

R.W., 129 S.W.3d at 744 (holding that only one finding under section

161.001(1) is necessary to support a judgment of termination).

      C.    Best Interest Finding

      In his second point, David argues that the evidence is factually

insufficient to support the finding that the termination of his parental rights was

in D.F.’s best interest. Although David at one time said that he wanted to care

for D.F., he has now requested that D.F. live with her godmother, Shelly, in

North Carolina. David argues that it is in D.F.’s best interest to live with Shelly

because she would be close to her siblings, who live in Wake Forest, North

Carolina, approximately twenty minutes away from Shelly’s house.

      Prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest. T EX. F AM. C ODE A NN. § 263.307(a)

(Vernon 2002). There is also a strong presumption that keeping a child with

a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.

2006). Nonexclusive factors that the trier of fact in a termination case may use

in determining the best interest of the child include (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

                                        19
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 which 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. Holley

v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

      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. C.H., 89 S.W.3d at 27. 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. Id. On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

      With respect to the first factor, D.F. did not testify at trial, but Gillinger

testified that every time she and D.F. talked, D.F. had positive things to say

about her foster family. Most importantly, D.F. told Gillinger not to take her

away from her foster home.            Gillinger also stated that during their

conversations, D.F. talked about her older sister with the foster family, her

involvement with school basketball, her success in school, and having new

                                        20
friends.   Pamela testified that D.F. signs her schoolwork with her foster

surname and that her school teachers also refer to her by that name. D.F. also

refers to Pamela as her “mommy.”

       As for the third factor, the court was entitled to conclude, based on all

the evidence set forth above regarding David’s criminal history, drug use,

incarceration, and general lack of interest in D.F.’s life, that D.F.’s emotional

well-being in the future is at risk.

       With respect to the fifth factor, Gillinger testified that she had set up a

service plan for David but that she had not implemented the plan because she

had limited contact with David.

       Regarding the sixth and seventh factors, CPS plans to have Pamela adopt

D.F.   Pamela testified that adopting D.F. is also her intention, pending the

outcome of the case. Pamela lives with her husband, their 12-year-old son, and

now, D.F. Pamela and her husband have three other adult children that live out

of the house. The evidence demonstrates that during her time with Pamela,

D.F. has both bonded with the family and successfully acclimated to her new

life. William Allanach, a Child Advocates volunteer, testified that on his visits

to see D.F. with her new foster family, he noticed that their relationship seemed

to be very loving and supportive, referencing many of the activities D.F. has

enjoyed with her new family, such as riding bicycles, playing basketball, and

                                       21
baking cookies. Gillinger testified that she noticed a strong level of affection

between D.F. and her new foster family and went on to state that she did not

observe that same level of affection between D.F. and her previous foster

family.

      David, on the other hand, has proposed that D.F. leave her foster family

and move in with Shelly in North Carolina, whom D.F., at the time of trial, had

not seen in over two years. Shelly lives in a four-bedroom home with her

husband and six children; D.F. would be the seventh child in the house.

David’s main argument for placing D.F. with Shelly, is that she would be closer

to her siblings, whom she had not seen in almost two years at the time of trial.

There was a considerable amount of testimony concerning Shelly and her

withdrawal from a previous home study initiated by North Carolina CPS.

Gillinger testified that North Carolina CPS denied the home study after it had

made several attempts to contact Shelly and because Shelly failed to participate

in foster parenting classes.     Shelly testified that her home study was

withdrawn, as opposed to being denied by CPS, because she wanted to give

Yvonne’s mother a chance to take custody of D.F. Shelly also mentioned in her

reasoning for withdrawing from the home study that her daughter was

expecting a baby and that Shelly felt as though she was the only one who

could be there with her at that time. Shelly’s eighteen-year-old daughter and

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that daughter’s nine-month-old baby whom Shelly referred to are both currently

living in Shelly’s house.

      Regarding the eighth and ninth factors, there is ample evidence that

demonstrates David’s lack of interest in visiting D.F, knowing her whereabouts,

or generally participating in her life. David admitted that he did nothing more

than make two phone calls when he first found out that Yvonne and D.F. were

being investigated in either October or November 2005. Also, since either

spring of 2006 or August 2006, when he found out that D.F. was in foster

care, David has never visited D.F. or asked to visit D.F.; however, until late

2006, David was precluded by the terms of his probation from leaving the state

of California. David also admitted that April 8, 2005 was the last time he sent

any financial support to Yvonne for D.F. David continued, however, to give

money to Yvonne’s mother for the other three children. David testified that he

stopped paying child support for D.F. because he did not know where Yvonne

was and that Yvonne did not want the money anyway. Additionally, the one

time that David traveled by bus through Texas on his way from California to

North Carolina, he failed to make any contact at all with D.F., who was living

in Texas at the time. He said that it “never crossed [his] mind” to call and ask

to see D.F. and that he “figured it was just waiting to go to court.” Finally,

David agreed on cross-examination that it would be okay if his rights were

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terminated as long as D.F. was sent to live with Shelly and that he would not

visit D.F. if asked not to do so by the trial court.

      Having carefully reviewed the record and considering the evidence

supporting the Holley factors, we hold that the evidence is factually sufficient

to support the trial court’s best interest finding. The trial court could have

formed a firm conviction or belief, based on the evidence set forth above, that

terminating David’s parental rights was in D.F.’s best interest. Accordingly, we

overrule David’s second point.

                                 V. C ONCLUSION

      Having overruled both of David’s points, we affirm the trial court’s

judgment.


                                             PER CURIAM

PANEL F: HOLMAN, WALKER, and MCCOY, JJ.

DELIVERED: March 27, 2008




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