Opinion filed October 4, 2016




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-16-00100-CV
                                    __________

                 IN THE INTEREST OF S.P.R., A CHILD


                     On Appeal from the 118th District Court
                            Howard County, Texas
                         Trial Court Cause No. 50,160


                      MEMORANDUM O PI NI O N
      This is an appeal from an order in which the trial court terminated the parental
rights of the mother and the father of S.P.R. The father filed a notice of appeal, but
the mother, who voluntarily relinquished her rights, did not appeal. On appeal,
Appellant presents two issues in which he challenges the legal and factual
sufficiency of the evidence. We affirm.
                         Termination Standards and Findings
      The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). 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(b)(1)(A)–(T) and that termination is in the best interest of the child.
FAM. § 161.001(b).
      After hearing the evidence presented at the final hearing in this case, the trial
court found that Appellant had committed one of the acts listed in
Section 161.001(b)(1)—that found in subsection (Q). Specifically, the trial court
found that Appellant had knowingly engaged in criminal conduct that resulted in his
conviction of an offense and confinement or imprisonment and inability to care for
the child for not less than two years from the date that the petition was filed in this
case. The trial court also found, pursuant to Section 161.001(b)(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. 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


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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.
                                       Analysis
      In his first issue, Appellant challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding under subsection (Q). To support a
finding under subsection (Q), the record must show that the parent will be
incarcerated or confined and unable to care for the child for at least two years from
the date the termination petition was filed. FAM. § 161.001(b)(1)(Q); In re H.R.M.,
209 S.W.3d 105, 110 (Tex. 2006). Appellant does not dispute that he has been
convicted of a crime and incarcerated, nor does he dispute the fact that he will remain
incarcerated for at least two years from the date the petition was filed. Rather, he
contends that the evidence showed that he “had provided adequate alternative care”
for the child during the time of his incarceration. We disagree.
      The Department of Family and Protective Services filed the original petition
in this case on December 15, 2014. Appellant pleaded guilty and was convicted in
federal court on September 3, 2014, of the offense of conspiracy to distribute and to
possess with the intent to distribute methamphetamine in an amount of fifty grams
or more. The judge in that case sentenced Appellant to a term of imprisonment for
151 months. Appellant was incarcerated in New Jersey at the time of the final




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hearing and appeared via telephone. Appellant testified that his projected release
date is sometime in 2019.
        Although Appellant was unable to personally provide for S.P.R.’s care and
unable to support her financially, he proposed a substitute caregiver. Appellant
testified that he had “somebody in mind”: his cousin H.N.R. He listed H.N.R. as a
potential caregiver on a form he sent to the Department. Appellant asked that S.P.R.
be placed with H.N.R. until Appellant’s release from prison.          According to
Appellant, H.N.R. was willing and able to help him take care of S.P.R.
        The conservatorship worker for this case testified that the Department had
received a caregiver resource form from Appellant and had conducted a home study
on H.N.R. However, the home study was not approved due to H.N.R.’s financial
situation and a concern that involved pending charges against H.N.R.’s boyfriend.
S.P.R.’s guardian ad litem, a CASA representative, testified that she agreed with the
Department’s decision not to approve H.N.R. as a placement. The record shows that
the Department had also considered other family members as potential placements.
S.P.R. had originally been placed with Appellant’s parents, but Appellant’s parents
subsequently contacted the Department and asked that S.P.R. be removed from their
home.
        The Department produced clear and convincing evidence from which the trial
court could reasonably have formed a firm belief that Appellant had knowingly
engaged in criminal conduct, that he was duly convicted and imprisoned for that
conduct, and that his imprisonment and inability to care for S.P.R. would continue
for more than two years after the date that the petition was filed. Furthermore,
Appellant’s suggested placement of S.P.R. with H.N.R. was not a viable alternative
because the Department had investigated that possibility and disapproved. The
record contains no evidence to indicate that anyone other than H.N.R. was willing


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to care for S.P.R. on Appellant’s behalf during his incarceration. See H.R.M., 209
S.W.3d at 110. Consequently, we hold that the evidence is legally and factually
sufficient to support the trial court’s finding under subsection (Q). See id. at 108–
10. We overrule Appellant’s first issue.
        In his second issue, Appellant challenges the trial court’s finding that
termination of his parental rights would be in the best interest of the child. With
respect to S.P.R.’s best interest, the record reflects that she had been placed in a stable
foster home and that she was thriving and happy in that placement.                    The
Department’s goal for her was termination and unrelated adoption. Appellant did
not want his parental rights to be terminated and did not believe that termination
would be in S.P.R.’s best interest because he was her father and because he loved her
and wanted to be there for her after his rehabilitation. Appellant admitted, however,
that he did not have much of a relationship with S.P.R. He said that he had lived
with S.P.R. and her mother until S.P.R. was about three years old. At the time of
trial, S.P.R. was almost seven years old, and Appellant had been incarcerated for two
and one-half years. He had not had any contact with S.P.R. during that period of
time.
        The caseworker indicated that, putting S.P.R. “on hold” until Appellant’s
release from prison would hold her back from stability and permanency. The CASA
representative, who had visited with S.P.R. every month during the pendency of this
case, testified that S.P.R. had not mentioned her father or expressed any interest in
being with her father. The CASA representative believed that it would be in S.P.R.’s
best interest for Appellant’s parental rights to be terminated and for S.P.R. to be
adopted by a nonrelative. 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 S.P.R.’s best interest. See


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Holley, 544 S.W.2d at 371–72. We hold that the evidence is both legally and
factually sufficient to support the trial court’s best interest finding. We overrule
Appellant’s second issue.
                                   This Court’s Ruling
      We affirm the trial court’s order of termination.




                                                     JOHN M. BAILEY
                                                     JUSTICE


October 4, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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