Affirmed and Memorandum Opinion filed April 8, 2014.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-13-01084-CV

                 IN THE INTEREST OF D.Z.R.-M., A CHILD


                    On Appeal from the 314th District Court
                             Harris County, Texas
                      Trial Court Cause No. 2012-04982J

               MEMORANDUM                           OPINION
      Appellant C.M. (hereinafter, the “Father”) challenges the trial court’s
termination of his parental rights to his minor child D.Z.R.-M. (hereinafter, the
“Child”). The Father asserts the trial evidence is legally and factually insufficient
to support the trial court’s findings that he engaged in the conduct described in
subsections (N), (O), and (Q) of Texas Family Code section 161.001(1) and that
termination of his rights is in the Child’s best interest. We conclude that the
evidence is legally and factually sufficient to support the trial court’s finding that
the Father engaged in the conduct described in subsection (Q) and that termination
of his rights is in the Child’s best interest. Accordingly, we affirm.
                I.     FACTUAL AND PROCEDURAL BACKGROUND

      On August 27, 2012, the Department filed suit for protection of the Child.
The record reflects that the Child’s mother, M.C. (hereinafter “the Mother”) had an
extensive history with the Department. On October 15, 2010, the Mother pled
guilty to injury to a child, and the trial court deferred a finding of guilt, ordering
the Mother placed on community supervision for four years. The indictment
alleged the Mother injured her daughter, Y.L., by striking, grabbing, and dragging
her. Y.L. was placed in the custody of her father, who is not a party to this
proceeding. The Department alleged in its petition that it had taken action
regarding two other of the Mother’s children, E.C. and A.J. The Mother’s rights to
E.C. had been terminated, and A.J. was not in the Mother’s care.

      In addition, in 2011, the Department sued seeking protection of another of
the Mother’s children, T.M, who was born in May, 2011. The Father was
determined to be T.M.’s father. On September 12, 2011, the Father was convicted
of felony theft, and his sentence was suspended while he served community
supervision. On December 12, 2011, the Father’s community supervision was
revoked, and he was sentenced to three years’ in prison.

      While the Father was serving this sentence, on September 4, 2012, the
parental rights of both the Father and the Mother to T.M. were terminated. While
the Mother was found to have committed endangering conduct, and other predicate
findings under section 161.001(1) of the Texas Family Code, the Father voluntarily
relinquished his parental rights to T.M.

      During the termination proceedings regarding T.M., the Department
received a report that the Mother had given birth to the Child, the subject of this
proceeding, in July 2012. The Department’s investigation revealed that the Mother
was homeless and had been admitted to a transitional living program.
                                           2
      The Father, who was not married to the Mother, was identified as the alleged
father of the Child.    At the show cause hearing on October 30, 2012, the
Department was appointed the child’s sole temporary managing conservator. The
trial court ordered drug and DNA testing. Family service plans for both parents
setting out requirements for reunification with the child were filed with the court.
At a status hearing on December 11, 2012, the trial court approved the Father’s
family service plan and ordered the Father to timely comply with each and every
task set out in the plan. The Father’s family service plan did not require the Father
to perform any tasks. The only task listed was “establish paternity” and the task
was assigned to the Department. The record reflects that the Father participated in
DNA testing, and his paternity was established. The Father’s family service plan
bears a handwritten notation that, “If [the Father] is the father of The Child, [the
Department] will provide [the Father] with a family plan of service.” Our record
contains no subsequent family service plan.

      On November 5, 2013, the case was tried to the court. The record reflects
that the Father was incarcerated at the time of trial, but he was present and
participated in the trial. When the case was called for trial, the Father’s counsel
made an oral motion for continuance. She stated that the Father had been granted
parole and that the projected time for him to be released had changed several times.
She requested a continuance so that upon the Father’s release on parole, he “would
have time to complete services.” The trial court denied this request.

      At the beginning of the trial, a record of the Father’s December 12, 2011
criminal conviction for theft of property valued between $20,000 and $100,000
was admitted at trial. The record reflects the Father was sentenced to serve three
years in prison. The father’s family service plan and the decree from the previous
termination case in which the Father voluntarily relinquished his parental rights to

                                         3
T.M. were also admitted into evidence.

      The Department’s only witness was its caseworker, Sheena White. The
caseworker testified that the Child was then one year old and placed in foster care.
She stated that the Child’s physical and emotional needs were being met. The
Child was the “perfect” age for adoption. She testified she believed termination of
the Father’s parental rights is in the Child’s best interest.

      In response to questioning by the attorney ad litem for the child, White
testified it would be in the child’s best interest for the Father’s rights to be
terminated because the Father had been incarcerated during the pendency of the
case, the Father had not completed his court-ordered services, and the child needs
stability. On cross-examination, White acknowledged that she had not provided a
copy of the Father’s service plan to him because she had difficulty locating him in
the prison system. She testified that she had mailed a copy of the Father’s service
plan to him, but it was returned with a notation that the Father had been transferred
to another facility. She obtained a new address from the Father’s sister and mailed
a copy of the plan to that address, but it was also returned. She contacted the
Father’s counsel’s office and obtained an address, but was later informed by
counsel’s staff that they were not sure of the Father’s location.

      The attorney ad litem called the court-appointed child advocate, who
testified that she believed the Father’s rights should be terminated because of his
criminal history and time in jail. Although she had never met the Father, she
testified that she did not believe the Father would be able to provide a stable
environment “in terms of a home, a job in caring for his son” after his release from
jail. The child advocate expressed the opinion that termination would be in the
child’s best interest. The advocate opined that Child should remain with the foster
family and begin adoption preparation with them. She testified it would be best for

                                            4
the Child to have stability. She noted that the Child’s foster parents had cared for
other foster children, raised their own children, and had a nice home. She testified
the Child was very attached to his foster parents, and they had done a wonderful
job with him.

      At the conclusion of the child advocate’s testimony, the court pointed out
that her report stated the current foster parents had “not expressed an interest in
adoption at the moment.” The child advocate responded that “they have changed
their position a couple of times.” The advocated explained that were concerned
about going forward before the parental rights to the Child had been terminated,
and about the delay that might be caused by an appeal. The child advocate also
stated that the adoptive parents for two of the Mother’s other children were
considered for adoption of the Child, but they were “not up for it right now.”

      The Father testified at trial and stated that he had not received a family
service plan, but that he had completed programs and services available to him
while incarcerated. He stated, “every program and service that was offered to me in
TDC I took and I’ve completed.” The Father testified that through these courses,
he learned about work ethic and how to present himself when looking for work.
He also participated in a drug education course, although drugs had never been an
issue for him. He learned about the negative effects of drugs on the body and brain.
The course helped him understand the Mother’s circumstances and would help him
to be protective of the Child. He testified that he had completed a parenting class in
2010 and learned about placing priority on children’s nourishment, safety, and
well-being. The Father testified that the Child had twice been brought to visit him
while he was incarcerated. He had received six photographs of the Child.

      The Father testified that he appeared before the parole board, had been
granted parole, and was expected to be released in the beginning of December

                                          5
2013. In preparation for his release from prison, the Father had contacted his
former boss who told him he could return to his previous job. He was also told by
his uncle, a regional manager for the Houston Chronicle, that he would be given a
paper route to deliver the newspaper. The Father testified that he had his own
home, and that, while he has been incarcerated, one of his sisters had been living
there and taking care of the home for him. He testified that upon release, he would
have a safe and stable home. On cross-examination, the Father admitted that his
sister was no longer living in his house and he did not know if his mother was
staying there.

      The Father testified that he had a plan as to what he would do if he were
released from prison and the court did not terminate his parental rights and allowed
the Father to be involved with the Child. His plan was to obtain and maintain a job,
be involved in the Child’s life, and provide time, food, clothing, and safe shelter
for the Child. The Father also stated that he planned to be protective of the Child
regarding the Mother. He stated that he would care for the Child and that his sister
would care for the Child when the Father is at work. He also testified that he had
asked several family members to help with the Child’s care, and they were willing
to provide care.

      Finally, the Father testified that it is not in his son’s best interest for his
rights to be terminated because “a child should be with their family,” and he has a
safe home and the ability to provide for the Child, including his health and
nutrition. He testified that he would provide appropriate discipline, guidance, and
supervision for the Child. He also testified that he has two other sons that he has a
“perfect” relationship with. Before his incarceration, he provided for them “every
single week,” visited with them every weekend, and attended all PTA meetings. He
testified that if the Child were placed with him or his family members, he would

                                         6
have access to those half-siblings and his other extended family. In conclusion, he
pleaded that his rights not be terminated and promised the court that if he were
granted custody of the Child, he “will not fail.”

      The Father’s sister L.M. (hereinafter, the Aunt”) also testified at trial. She
testified that she worked as a senior clerk for Harris County in the Child Support
Division. The Aunt stated that she had been involved in the case from the
beginning and she had appeared in court for every hearing. The Aunt testified that
she was seeking to have the Child placed with her, and she would be willing to
adopt him. She testified she is stable, she can provide for all his “basic essentials,”
and he will be loved and “treated like mine.” She did not want to see the Child
taken from his family. She expressed her opinion that the Father’s parental rights
should not be terminated because he is a good father. She testified that he “goes
above and beyond for his children,” and the Child is part of his family. The Aunt
confirmed that the Father had been actively involved with his two older sons prior
to his incarceration. She testified that she continued to see these nephews and had
them over to her house the weekend before trial.

      The Aunt testified that she provides for her three children ages 14, 12, and
11, who are honor roll students. She has talked to her children about the Child,
they participated with her in the home study conducted by the Department, and her
children are looking forward to their cousin coming to live with them. She testified
she was told that she passed the home study. The Aunt testified she has been
active in counseling youth at her church and is a “youth president.”

      The Aunt testified that she is financially able to take care of The Child. She
“know[s] how to budget,” and has savings. Her children “don’t need for anything.”
The Aunt testified that her mother, a disabled stroke victim, lives with her. The
Aunt explained that she is not required to spend much time or funds caring for her

                                          7
mother because her mother receives government support and care. She testified the
Father has offered to help provide for the Child if he is placed with her. She
testified she has no criminal history or history with the Department. In the Aunt’s
opinion, it would be in the Child’s best interest to be placed with her. She
acknowledged that if the Father were required to have supervised visits with the
children, she would comply. She stated she did not understand why the Child had
not already been placed with her.

      On cross-examination, the Aunt acknowledged that there were some
concerns raised about placing the Child with her. It had been alleged in the
previous termination proceeding that she had helped to hide T.M., the Mother and
the Father from authorities. The Aunt denied knowing the parents were “running”
while T.M. was missing for a month, although she admitted she was very close to
her brother.

      The Aunt also testified that the attorney ad litem had never been to her home
to review it and had not returned emails or phone calls. The child advocate visited
her home once. The caseworker, White, visited her home and updated the home
study. White told the Aunt that the home study had been approved. The only
reason she had been given for the failure to place the Child with her was the
allegation that she knew T.M.’s whereabouts when T.M. was missing.

      The Mother testified and addressed the incident when T.M. was missing.
She stated that neither she nor the Father told the Aunt where they were until T.M.
was about two weeks old. She stated that by that time, she had notified the
caseworker of their location. The Mother agreed that her rights to the Child should
be terminated, but she stated the Father had always protected his children, and “he
has no history the way I do.” Although she had denied having a relationship with
the Father for almost a year during the case involving T.M., the Mother admitted

                                        8
that she was later arrested with the Father. She denied that she lied, however. The
Mother admitted that she was on probation for injury to a child and was in jail at
the time of trial, pending the determination of a motion to revoke her probation.

      In rebuttal, the caseworker, White, testified that the Father never telephoned
her to check on the Child. She further expressed an opinion that two visits over a
year did not constitute significant contact with the child. The caseworker
acknowledged that the home study on the Aunt was approved, but she did not
believe it would be best for the Child to be placed with the Aunt because she
would not be protective as far as the Father was concerned based on the previous
incident when the Father and T.M. were missing for a month.

      At the conclusion of the trial, the court found by clear and convincing
evidence that the Father had engaged in the conduct described in subsections (N),
(O), and (Q) of Texas Family Code section 161.001(1) and that termination of the
parent-child relationship between the Father and the Child is in the Child’s best
interest. The trial court signed the final decree for termination and the Father filed
a timely notice of appeal.1

                                II.     STANDARD OF REVIEW

      In a proceeding to terminate the parent-child relationship brought under
section 161.001 of the Texas Family Code, the petitioner must establish by clear
and convincing evidence one or more acts or omissions enumerated under
subsection (1) of 161.001 and that termination is in the best interest of the child
under subsection (2). See Tex. Fam. Code § 161.001; In re J.L., 163 S.W.3d 79, 84
(Tex. 2005). Clear and convincing evidence is that 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. In re C.H., 89 S.W.3d 17, 25–26
      1
          The Mother’s parental rights were also terminated, but she is not a party to this appeal.
                                                  9
(Tex. 2002).

      The heightened “clear and convincing evidence” burden of proof alters the
appellate legal-sufficiency standard of review. See In re J.F.C., 96 S.W.3d 256,
264–66 (Tex. 2002). In conducting such a legal-sufficiency review, a court must
look at all the evidence in the light most favorable to the termination findings to
determine whether a reasonable trier of fact could have formed a firm belief or
conviction that these findings are true. See id. at 266. To give appropriate
deference to the factfinder’s conclusions and the role of a court conducting a legal-
sufficiency review, looking at the evidence in the light most favorable to the
judgment means that a reviewing court must assume that the factfinder resolved
disputed facts in favor of its findings if a reasonable factfinder could do so. Id.
Furthermore, a reviewing court should disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible. Id. This does
not mean that a reviewing court must disregard all evidence that does not support
the findings in question. Id. Disregarding undisputed facts that do not support the
finding could skew the analysis of whether there is clear and convincing evidence.
Id. If, after conducting its legal-sufficiency review of the record evidence, a court
determines that a reasonable factfinder could not form a firm belief or conviction
that the matter that must be proven is true, then that court must conclude that the
evidence is legally insufficient. Id.; see also In re J.L., 163 S.W.3d 79, 84–85 (Tex.
2005) (outlining legal-sufficiency standard of review).
      In reviewing a factual-sufficiency challenge to termination findings, we give
due consideration to evidence that the factfinder reasonably could have found to be
clear and convincing. In re J.F.C., 96 S.W.3d at 266. The factual-sufficiency
inquiry is whether the evidence is such that the factfinder reasonably could form a
firm belief or conviction about the truth of the Department’s allegations. Id. We
consider whether the disputed evidence is such that a reasonable factfinder could
                                         10
not have resolved that disputed evidence in favor of its finding. Id. “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 about the truth of the
petitioners' allegations, then the evidence is factually insufficient.” Id. We give due
deference to fact findings, and we do not supplant the factfinder’s judgment with
our own. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
      We apply the same legal-sufficiency and factual-sufficiency standards in
reviewing the evidence regardless of whether we are reviewing a jury’s verdict or,
as in this case, the trial court’s findings following a bench trial. Catalina v.
Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).

                            III.   ISSUES AND ANALYSIS

      The trial court’s judgment recites that the Father’s parental rights were
terminated based on predicate findings under subsections (N), (O), and (Q) of
Texas Family Code Section 161.001(1). Under these subsections, termination is
warranted if the trial court finds by clear and convincing evidence that the parent
has

      (N) constructively abandoned the child who has been in the permanent
      or temporary managing conservatorship of the Department of Family
      and Protective Services or an authorized agency for not less than six
      months, and:
      (i) the department or authorized agency has made reasonable efforts to
      return the child to the parent;
      (ii) the parent has not regularly visited or maintained significant
      contact with the child; and
      (iii) the parent has demonstrated an inability to provide the child with
      a safe environment;
      (O) failed to comply with the provisions of a court order that
      specifically established the actions necessary for the parent to obtain
                                          11
      the return of the child who has been in the permanent or temporary
      managing conservatorship of the Department of Family and Protective
      Services for not less than nine months as a result of the child's
      removal from the parent under Chapter 262 for the abuse or neglect of
      the child;
      (Q) knowingly engaged in criminal conduct that has resulted in the
      parent’s:
      (i) conviction of an offense; and
      (ii) confinement or imprisonment and inability to care for the child for
      not less than two years from the date of filing the petition.
Tex. Fam. Code § 161.001(1)(N), (O), & (Q).

      The Department was required to prove only one of these grounds to satisfy
the first prong of section 161.001. In re C.M.C., 273 S.W.3d 862, 874 (Tex.
App.—Houston [14th Dist.] 2008, no pet.).

A.    Is the evidence legally and factually sufficient to support the trial
      court’s finding that the Father engaged in the conduct described in
      subsection (Q) of section 161.001?
      In his third issue, the Father asserts the evidence is legally and factually
insufficient to support termination under subsection (Q) of section 161.001(1).
Under this subsection, the Department was required to prove by clear and
convincing evidence that the Father knowingly engaged in criminal conduct that
has resulted in the Father’s (1) conviction of an offense, and (2) confinement or
imprisonment and inability to care for the Child for not less than two years from
the date on which the Department filed the termination petition. See Tex. Fam.
Code § 161.001(1)(Q); In re A.V., 113 S.W.3d 355, 360 (Tex. 2003) (construing
phrase “two years from the date of filing the petition” to apply prospectively from
the date of filing a petition). The evidence contains the judgment reflecting the
Father’s felony conviction for theft of property valued between $20,000 and
$100,000. On appeal, the Father does not argue that the evidence is legally or

                                          12
factually insufficient to support the trial court’s finding that the Father knowingly
engaged in criminal conduct that resulted in the Father’s conviction of an offense.
Rather, the Father argues that the evidence is legally and factually insufficient to
support the finding that the Father’s criminal conduct resulted in the Father’s
confinement or imprisonment and inability to care for the Child for not less than
two years from the date on which the Department filed the termination petition.
For subsection (Q) to apply, the Father must be both incarcerated or confined and
unable to care for the Child for at least two years from the date on which the
Department filed the termination petition. See In re H.R.M. 209 S.W.3d at 109–10.

      We first address the sufficiency of the evidence to support the trial court’s
finding that the Father’s criminal conduct would result in the Father’s confinement
or imprisonment for not less than two years from the date on which the Department
filed the termination petition. The Department filed the petition on August 27,
2012; accordingly, two years after filing the petition is August 27, 2014. See In re
A.V., 113 S.W.3d at 359–60. According to the judgment reflecting the Father’s
theft conviction, the Father was sentenced to serve three years’ confinement on
December 12, 2011. The Father was also given credit for fifteen days previously
spent in jail in that case. Thus, this sentence would expire in late 2014, after
August 27, 2014. The Father argues, however, that we must consider his testimony
that he had already been granted parole and was expected to be released in the
beginning of December, 2013. The Father asserts that, based on this
uncontroverted testimony, the trial evidence is legally or factually insufficient to
support a finding that the Father’s criminal conduct would result in the Father’s
confinement through August 27, 2014.

      In addressing the manner in which an appellate court should review a
finding that a parent’s criminal conduct would result in the parent’s confinement or

                                         13
imprisonment for not less than two years from the date on which the termination
petition was filed, the Supreme Court of Texas has provided the following
guidance:

      We recognize that a two-year sentence does not automatically meet
      subsection Q’s two-year imprisonment requirement. In some cases,
      neither the length of the sentence nor the projected release date is
      dispositive of when the parent will in fact be released from prison. A
      parent sentenced to more than two years might well be paroled within
      two years. Thus, evidence of the availability of parole is relevant to
      determine whether the parent will be released within two years. Mere
      introduction of parole-related evidence, however, does not prevent a
      factfinder from forming a firm conviction or belief that the parent will
      remain incarcerated for at least two years. Parole decisions are
      inherently speculative, and while all inmates doubtless hope for early
      release and can take positive steps to improve their odds, the decision
      rests entirely within the parole board’s discretion.
In re H.R.M., 209 S.W.3d at 109–10 (citations omitted). Admittedly, the father in
In re H.R.M. did not testify that he had been granted parole. Nonetheless, the
evidence does not contain any documents reflecting that the Father had been
granted parole, and the only witness who testified that the Father had been granted
parole was the Father himself. As the sole arbiter of the credibility and demeanor
of witnesses, the trial court, acting as factfinder, was free to discredit and disregard
the Father’s testimony that he had been granted parole and that he was expected to
be released in the beginning of December 2013. See id. at 109; In re J.J., No. 14-
11-00652-CV, 2012 WL 642118, at *6 (Tex. App.—Houston [14th Dist.] Feb. 28,
2012, no pet.) (mem. op.). Under the applicable standards of review, the trial
evidence is legally and factually sufficient to support a finding that the Father’s
criminal conduct would result in the Father’s confinement through August 27,
2014. See In re H.R.M., 209 S.W.3d at 109; In re J.J., 2012 WL 642118, at *6.

      Termination under subsection (Q) also requires that the Father’s criminal
conduct would result in the Father’s inability to care for the Child for not less than
                                          14
two years from the date on which the Department filed the termination petition.
See In re H.R.M., 209 S.W.3d at 109–10. Once the petitioner has established a
parent’s knowing criminal conduct would result in his incarceration or
confinement for at least this two-year period, the incarcerated or confined parent
must produce some evidence showing how he would provide or arrange to provide
care for the child during this period of incarceration. See In re H.R.M., No. 14-05-
00281-CV, 2007 WL 707553, at *3 (Tex. App.—Houston [14th Dist.] Mar. 8,
2007, no pet.) (mem. op.). If the parent meets this burden, the petitioner has the
burden to prove the arrangement would not satisfy the parent’s duty to the child.
See id.

      As discussed above, the Department established that the Father’s knowing
criminal conduct would result in his incarceration or confinement for at least this
two-year period. Thus, we must determine whether the Father produced some
evidence showing how he would provide or arrange to provide care for the Child
during this period of incarceration. See id. Though the Father contends that he did,
we conclude to the contrary. Neither the Father’s testimony, the Aunt’s testimony,
nor any other evidence addressed how the Father would provide or arrange to
provide care for the Child while the Father was incarcerated. Instead, the Father
addressed his plans as to what he would do if he were released from prison, the
court did not terminate his parental rights, and he was allowed to be involved with
the Child. The Father did not address how he would provide or arrange to provide
care for the Child if he remained incarcerated, the court did not terminate his
parental rights, and he was allowed to be involved with the Child. The Aunt
testified as to her plans to provide care and her ability to provide care if the Child
were placed with her or if she were able to adopt the Child. But, if the Aunt were
providing care in these circumstances, she would be doing so on her own behalf,
rather than agreeing to assume the Father’s obligation to care for the Child while
                                         15
the Father is incarcerated. See In re H.R.M., 209 S.W.3d at 109–10. We conclude
that the Father failed to produce some evidence showing how he would provide or
arrange to provide care for the Child during the period of the Father’s incarceration
through at least August 27, 2014.

      In the alternative, presuming for the sake of argument that the evidence
regarding the Aunt’s caring for the Child and assisting the Father in caring for the
Child constitutes some evidence showing how the Father would provide or arrange
to provide care for the Child during this period of incarceration, the Department
still would have met its burden of proving that the arrangement would not satisfy
the parent’s duty to the child. Though she disagreed that it was a valid concern, the
Aunt testified that concerns had been raised about placing the Child with her,
based on allegations that she had helped to hide T.M., the Mother, and the Father
from authorities because she allegedly knew T.M.’s whereabouts during a period in
which T.M. was missing and was with the Mother and the Father. During the
Department’s rebuttal case, caseworker White testified she did not believe it would
be best for the Child to be placed with the Aunt because she would not be
protective as far as the Father was concerned based on the previous incident when
the Father and T.M. were missing for a month. Thus, even if the evidence
regarding the Aunt’s caring for the Child and assisting the Father in caring for the
Child constituted some evidence showing how the Father would provide or arrange
to provide care for the Child during this period of incarceration, the Department
still would have met its burden of proving that the arrangement would not satisfy
the parent’s duty to the child. See In re C.C.L., No. 07-13-00167-CV, 2013 WL
5614328, at *3–4 (Tex. App.—Amarillo Oct. 11, 2013, no pet.) (mem. op.); In re
E.J.F., No. 12-11-00197-CV, 2012 WL 1515171, at *4–5 (Tex. App.—Tyler Apr.
30, 2012, no pet.) (mem. op.).


                                         16
      Under the applicable standards of review, we conclude that the trial evidence
is legally and factually sufficient to support the trial court’s finding by clear and
convincing evidence that the Father knowingly engaged in criminal conduct that
has resulted in the Father’s (1) conviction of an offense, and (2) confinement or
imprisonment and inability to care for the Child for not less than two years from
the date on which the Department filed the termination petition. See In re H.R.M.,
209 S.W.3d at 109; In re J.J., 2012 WL 642118, at *6; In re C.C.L., 2013 WL
5614328, at *3–4; In re E.J.F., 2012 WL 1515171, at *4–5. Accordingly, we
overrule the Father’s third issue.

B.    Is the evidence legally and factually sufficient to support the trial
      court’s finding that termination of the parent-child relationship
      between the Father and the Child is in the Child’s best interest?
      In his fourth issue, the Father asserts the evidence is legally and factually
insufficient to support the trial court’s finding that termination of the parent-child
relationship between the Father and the Child is in the Child’s best interest.

      A strong presumption exists that the best interest of a child is served by
keeping the child with its natural parent and the burden is on the Department to
rebut that presumption. See In re S.M.L., 171 S.W.3d 472, 480 (Tex. App.—
Houston [14th Dist.] 2005, no pet). Factors for consideration in determining the
best interest of a child include the following: (1) the desires of the child, (2) the
present and future physical and emotional needs of the child, (3) the present and
future emotional and physical danger to the child, (4) the parental abilities of the
persons seeking custody in promoting the best interest of the child, (5) the
programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by the individuals or agency seeking custody, (7)
the stability of the home or proposed placement, (8) acts or omissions of the parent
which may indicate the existing parent-child relationship is not appropriate, and (9)
                                          17
any excuse for the parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976). A finding in support of “best interest” does not require
proof of any unique set of factors, nor does it limit proof to any specific factors. Id.
The list of factors is not exhaustive, nor is evidence required on all nine of the
factors to support a finding terminating a parent’s rights. Id. at 372.

      For cases in which the Department or another government agency is the
petitioner, section 263.307(a) provides that “the prompt and permanent placement
of the child in a safe environment is presumed to be in the child’s best interest.”
Tex. Fam. Code § 263.307(a). A trial court may also consider the following
statutory factors and any other relevant information in determining the best interest
of a child: (1) the child’s age and physical and mental vulnerabilities; (2) the
frequency and nature of out-of-home placements; (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, or 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
                                          18
the family’s care with: (A) minimally adequate health and nutritional care; (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. See Tex. Fam. Code § 263.307(b); see also In re J.J.C., 302
S.W.3d 436, 447–48 (Tex .App.—Houston [14th Dist.] 2009, pet. denied). With
these considerations in mind, we review the evidence.

      Because of the Child’s young age, there is no direct evidence about the
Child’s desires or whether the Child is afraid to be around the Father, whom the
Child had only seen twice. The child advocate testified, however, that the Child is
very attached to the Child’s foster family.

      The evidence at trial focused on the Father’s acts and omissions indicating
the existing parent-child relationship is not appropriate. The evidence supporting
the statutory grounds for termination may also be used to support a finding that the
best interest of the child warrants termination of the parent-child relationship. See
In re C. H., 89 S.W.3d 17, 28 (Tex. 2002).

      The record reflects that the Child was removed from the home pursuant to a
finding or threat of neglect or abuse. See In re E.C.R., 402 S.W.3d 239, 248–49
(Tex. 2013). The Mother had been convicted of injuring another child, and her
rights to the Child’s brother, T.M., were terminated based on an endangerment
finding. Despite this dangerous conduct, the Father had maintained a relationship
with the Mother. The record reflects that the Child was taken into the Department’s
care when he was less than one month old, and he was one year old at the time of

                                         19
trial. The Father has been incarcerated during the Child’s entire life and has had
only two visits with him. The Father failed to maintain significant contact with the
Child. There was no evidence the Father had bonded with the child. There was no
evidence the Father has provided for the Child financially or taken any actions to
provide stability for his child. There was evidence indicating that the Father is
unable to care for the Child while he is incarcerated.

      The trial court, as the factfinder, may have considered the Father’s pattern of
behavior in evaluating his ability to provide the Child with a safe home after his
release. See In re S.M.L., 171 S.W.3d at 479 (observing that incarcerated parent’s
absence from the child’s daily life, inability to support the child, and parent’s
commission of criminal acts subjecting him to possibility of incarceration can
negatively impact the child’s emotional well-being and are factors supporting
termination). See also In re C.J., No. 14-07-00838-CV, 2008 WL 4447687, at *5
(Tex. App.—Houston [14th Dist.] July 10, 2008, no pet.) (mem. op.) (stating a
“parent’s past behavior is indicative of the quality of future care that the parent is
capable of providing.”). While we recognize that a parent’s imprisonment will not,
standing alone, constitute endangering conduct, the court may consider the effect
of the parent’s course of conduct on the well-being of a child. See Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533–34 (Tex. 1987). In addition to the
Father’s theft conviction, the Father subsequently violated the terms of his
community supervision. The record reflects that the Father failed to pay his fine,
court costs, and other required fees, failed to participate in the Harris County
Community Supervision & Corrections Department Community Service
Restitution Program, and failed to submit to an alcohol and drug evaluation. The
trial court may reasonably have considered the Father’s failure to comply with
these court-ordered requirements in evaluating his future abilities as a parent.


                                          20
      We may also consider the Father’s past performance as a parent—apart from
his criminal history—in evaluating its bearing on his fitness to provide for the
Child and the trial court’s determination that termination would be in the Child’s
best interest. See In re C.H., 89 S.W.3d at 28. Shortly before the Child’s brother
T.M. was born in 2011, the Father committed theft and was placed on community
supervision. As noted above, the Father continued to associate with the Mother,
even though she had a conviction for injury to a child and her rights to another
child were terminated based upon her endangering conduct. While the Child was in
the Department’s care, the Father violated the terms of his community supervision,
jeopardizing his parental relationship. The Father’s rights to T.M. were terminated
after he signed a voluntary relinquishment, and that termination decree recited a
finding that appointment of the Father as conservator of the child would not be in
the child’s best interest because it would significantly impair the child’s physical
health or emotional development. The Father testified that he had a “perfect”
relationship with two other sons and talked to them on the phone daily, but the
factfinder may have disbelieved his testimony. The Aunt also testified that the
Father had been a good father to his two older sons. The Aunt acknowledged her
close relationship with her brother. The factfinder also may not have credited this
testimony, and we may not disturb the court’s reasonable credibility
determinations.

      The child advocate testified about the Child’s close relationship with his
foster family. She testified that all of the Child’s physical and emotional needs are
being met in his current placement. The Department’s caseworker testified that the
family had done a wonderful job with the Child. The foster family has considered
adopting the Child. Both the caseworker and the child advocate testified that in
their opinions, it is in the child’s best interest for the Father’s parental rights to be
terminated because the Child needs stability.
                                           21
       In sum, the record contains sufficient evidence to support the best interest
finding based on the Father’s criminal history, incarceration during the Child’s life,
the prior termination, and the Father’s confinement or imprisonment and inability
to care for the Child for not less than two years from the date on which the
Department filed the termination petition.

       Under the applicable standards of review, we conclude that the trial evidence
is legally and factually sufficient to support the trial court’s finding by clear and
convincing evidence that termination of the parent-child relationship between the
Father and the Child is in the Child’s best interest. See P.W. v. Dep’t of Family and
Protective Servs., 403 S.W.3d 471, 479 (Tex. App.—Houston [1st Dist.] 2013, pet.
dism’d w.o.j.). Accordingly, we overrule the Father’s fourth issue. 2

                                    IV.     CONCLUSION

       Having found legally and factually sufficient evidence to support the trial
court’s finding that the Father engaged in the conduct described in subsection (Q)
of section 161.001 and that termination of the parent-child relationship between the
Father and the Child is in the Child’s best interest, we order the trial court’s
judgment affirmed.

                                                    _____________________________
                                                    Kem Thompson Frost
                                                    Chief Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown.




       2
        Having overruled the Father’s third and fourth issues, we need not and do not address
the Father’s first and second issues, in which he challenges the legal and factual sufficiency of
the evidence supporting the trial court’s findings that he engaged in the conduct described in
subsections (N) and (O) of section 161.001.
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