                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-14-00162-CV


IN THE INTEREST OF D.D., A CHILD


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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 323-98683-J13

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                          MEMORANDUM OPINION 1

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      Appellant D.E. (Father) appeals the trial court’s order terminating his

parental rights to his son, D.D. (Dustin). 2 Father challenges the trial court’s order

only on the grounds that the evidence is legally and factually insufficient to prove

that termination of his parental rights is in Dustin’s best interest. We affirm.




      1
       See Tex. R. App. P. 47.4.
      2
      To protect D.D.’s anonymity, we will use “Dustin” as his alias. See Tex.
Fam. Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8(b)(2).
                               Background Facts

      L.D. (Mother) prematurely gave birth to Dustin in June 2013 after using

methamphetamine on the same day. At that time, Father was incarcerated for

assaulting Mother. Mother initially denied the voluntary use of illicit drugs and

told the Department of Family and Protective Services (the Department) that

Father had held her captive in a hotel room, had forced her to take drugs, and

had tried to kill her when she attempted to leave. Father denied these events.

Mother eventually admitted to voluntarily using drugs while pregnant with Dustin.

      After Dustin’s birth, the Department received a report that Mother had

tested positive for amphetamines.      Post-birth testing of Dustin’s meconium

likewise returned positive for amphetamines.

      The Department filed a petition alleging that Dustin was in immediate

danger, asking to be designated as his temporary sole managing conservator,

and seeking the termination of Mother’s and Father’s parental rights if

reunification could not be achieved. The Department attached an affidavit to its

petition averring that Mother and Dustin had tested positive for illegal drugs upon

Dustin’s birth and that Father was incarcerated for assault. The trial court named

the Department as Dustin’s temporary sole managing conservator.                The

Department placed Dustin in foster care after exhausting its search for suitable

placements with family members.

      Following Dustin’s placement, the Department filed its first service plan.

The plan set out a goal of family reunification and assigned tasks to Mother and


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Father, including meeting Dustin’s basic health and safety needs, abstaining from

drug and alcohol use or gang involvement, and completing counseling and

parenting classes. Mother and Father acknowledged the terms of the plan.

      From August 2013 to April 2014, the Department monitored the parents’

compliance with the plan. In December 2013, the Department informed the trial

court that Father had reported completion of a mental health assessment (a

requirement of the plan) and that he had plans to enroll in a “[Batterer’s]

Intervention Program.” Later, the Department reported to the court that Father

remained incarcerated and had “not reported any additional services rendered.”

      In April 2014, when Dustin was less than a year old, the trial court held a

bench trial. Father personally appeared through a bench warrant. The trial court

terminated his parental rights to Dustin and appointed the Department as

permanent managing conservator. Father brought this appeal. 3

                              Dustin’s Best Interest

      Father argues only that the evidence is legally and factually insufficient to

support the trial court’s finding that termination of the parent-child relationship is

in Dustin’s best interest. In a termination case, the State seeks not just to limit

parental rights but to erase them permanently—to divest the parent and child of

all legal rights, privileges, duties, and powers normally existing between them,

except the child’s right to inherit.   Tex. Fam. Code Ann. § 161.206(b) (West

      3
      The trial court also terminated Mother’s parental rights, but she has not
appealed.


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2014); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen

the State seeks to sever permanently the relationship between a parent and a

child, it must first observe fundamentally fair procedures.” In re E.R., 385 S.W.3d

552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102

S. Ct. 1388, 1391–92 (1982)). We strictly scrutinize termination proceedings in

favor of the parent. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385

S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.

      Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a) (West 2014); E.N.C., 384

S.W.3d at 802. “[C]onjecture is not enough.” E.N.C., 384 S.W.3d at 810. Due

process demands this heightened standard because “[a] parental rights

termination proceeding encumbers a value ‘far more precious than any property

right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102

S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C.,

384 S.W.3d at 802. 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.” Tex. Fam. Code Ann. § 101.007 (West 2014); E.N.C.,

384 S.W.3d at 802.

      In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the challenged ground for

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


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

Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder

could have done so. Id. We disregard all evidence that a reasonable factfinder

could have disbelieved.    Id.     We consider undisputed evidence even if it is

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

termination if a reasonable factfinder could, and we disregard contrary evidence

unless a reasonable factfinder could not. See id. “A lack of evidence does not

constitute clear and convincing evidence.” E.N.C., 384 S.W.3d at 808.

      In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder’s findings and do not supplant the judgment with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record, a factfinder could reasonably form a firm conviction or belief that

termination of Father’s parental rights is in Dustin’s best interest. See Tex. Fam.

Code Ann. § 161.001(2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). 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. H.R.M., 209 S.W.3d at 108.

      There is 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). Prompt and

permanent placement of the child in a safe environment is also presumed to be

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2014). In


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determining the best interest of the child, we may consider, among other factors,

the desires of the child, the emotional and physical needs of the child now and in

the future, the emotional and physical danger to the child now and in the future,

the parental abilities of the individuals seeking custody, the programs available to

assist these individuals to promote the best interest of the child, the plans for the

child by these individuals or by the agency seeking custody, the stability of the

home or proposed placement, the acts or omissions of the parent which may

indicate that the existing parent-child relationship is not a proper one, and any

excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d

367, 371–72 (Tex. 1976); E.N.C. 384 S.W.3d at 807; see In re E.C.R., 402

S.W.3d 239, 249 (Tex. 2013) (stating that in reviewing a best interest finding, “we

consider . . . the Holley factors” (footnote omitted)).

      Father argues that there is insufficient evidence indicating that he poses a

physical and emotional danger to Dustin. But the evidence illustrates Father’s

pattern of violence toward others and that the violence endangered Dustin in the

past and could be dangerous to him in the future. Specifically, in December

2012, while Mother was pregnant with Dustin, police arrested Father for causing

bodily injury to her by punching her, throwing her to the ground, and choking

her. 4 Father pled guilty to assault on a family member, a Class A misdemeanor,

and a trial court sentenced him to forty-five days’ confinement.

      4
       Prior to this arrest, in 2008, Father was convicted of two counts of
burglary of a habitation and sentenced to four years’ confinement.


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        Following the incident, a trial court issued a protective order against

Father. He violated the protective order two months later (in February 2013)

when the police arrested him for a disturbance at Mother’s residence. 5 Father

eventually pled guilty to violating the protective order, was convicted of that

offense, and received a sentence of ninety days’ confinement.

        In March 2013, while Mother was still pregnant with Dustin, the police

arrested Father again for assaulting her.          An indictment that the trial court

admitted alleged that he had bit her, had pulled her hair, had grabbed her, and

had impeded her breathing and circulation by applying pressure to her throat or

neck.       At the time of the incident, Mother informed the police that she was

approximately five months pregnant.            Father again pled guilty to assaulting

Mother. Because of Father’s prior conviction for assaulting Mother, upon his

third-degree-felony conviction for the March 2013 assault, the trial court

sentenced him to three years’ confinement. Father was incarcerated for this

charge at the time of the termination trial.

        While incarcerated, Father continued engaging in violence. For example,

he was involved in a physical altercation with two jail guards, Officer Christopher

Rynkowski and Officer J. Brown. Officer Rynkowski testified that Father had

failed to comply with orders to stay within a designated walking area and then

        5
       According to Father’s testimony at the termination trial, Mother’s brother
shot him on this day. Father testified that he confronted Mother’s brother about
providing Mother with drugs and alcohol during her pregnancy and that the
confrontation led to him being shot.


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became combative when Officer Brown attempted to use “passive guidance” to

get Father back to his cell. Father said to Officer Brown, “[I]f you touch me, I’ll

beat your ass.”

      Upon returning to his cell, Father became violent with Officer Rynkowski

when he instituted a pat search. Father told Officer Rynkowski, “Don’t touch me,”

and when Officer Rynkowski searched Father, Father turned around and

grabbed Officer Rynkowski’s throat.          Both guards responded, but Father

continued to tighten his grip on Officer Rynkowski’s throat and refused to let go.

Fearing for his life, Officer Rynkowski used “closed-hand fist” hits to Father’s

wrists to get him to release the grip. 6       The Department’s conservatorship

caseworker, Fatina Sanders, testified that Father’s continued pattern of

assaulting others demonstrates a lack of good parenting skills necessary for

Dustin’s care.

      Father testified that he is a member of Puro Tango Blast, which he

described as an “organization against family organizations.”         He stated that

unlike other prison gangs, Puro Tango Blast is organized to “stay out of trouble”

so that its members could “make parole and go home.” He admitted, however,

that in entering and remaining in Puro Tango Blast, he had engaged in physical

fights while in prison.




      6
       Father testified that he was provoked during this incident.


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      Father was unable to provide the Department with any suitable placements

for Dustin. In his meetings with Sanders, he suggested placing Dustin with his

alleged fiancée T.T.; however, the record reflects that the actual nature of

Father’s relationship with T.T. is in question. T.T. told Sanders that she was not

in an intimate relationship with Father and explained that she was “old enough to

be his mother.”

      In any event, placement with T.T. is not suitable because she admittedly

“has no clue how to care for a child”; does not have the financial resources to

care for Dustin; and, unlike Dustin’s current foster parent, has no relationship

with him. Additionally, Father could not suggest any placements with his family

members because they were “devil worshippers” and “weren’t a good fit” to care

for Dustin. Sanders testified that Dustin needs a caregiver who can “provide a

safe and stable environment that’s free from hazards, which include drugs,

alcohol,   aggressive    behavior,   [and]    criminal   activity.”   The     evidence

demonstrates that Father is unable to provide the care that Dustin needs now

and in the future or to suggest a suitable alternative to act in his stead.

      After the Department placed Dustin in foster care, it presented Father with

a service plan aimed at achieving reunification. 7 The plan required Father to

participate in domestic violence and parenting classes, seek individual

counseling, undergo a mental health assessment, submit to regular drug and

      7
        The Department created the plan in July 2013, and Father acknowledged
its contents that month.


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alcohol testing, regularly visit Dustin, refrain from engaging in criminal activity,

and provide financial stability for Dustin. At trial, Sanders testified that Father

had not engaged in any of the required services. She also testified that Father

“lacks parenting skills,” could not suggest an appropriate placement for Dustin,

and continued “to engage in negative behavior” while he was incarcerated

despite knowing that Dustin was in the Department’s custody and that his actions

could affect his ability to retain parental rights.

      Because of his incarceration, Father was limited in the services that he

could participate in, but the record shows that he failed to participate in most of

the services that were available to him. Father reported that he had completed a

mental health assessment but failed to provide documentation. He testified that

he was diagnosed with anxiety and depression and was taking Zoloft. He also

testified that on his medication, he had become more mellow and could “handle

[him]self a lot better.” Father also said that he would be able to participate in the

Batterer’s Intervention Program, but there was no documentation showing that he

had participated.

      Father was unable to participate in other available services because, in

part, prison personnel placed him on restriction “a few times” throughout his

incarceration. The administration placed Father on restriction because of his




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negative behavior toward officers and inmates.       In addition to the restriction,

guards at the jail requested that Father be placed on “assaultive status.” 8

      At the termination trial, Sanders suggested adoption by the foster parent

as a permanent plan for Dustin. Dustin is thriving in his current placement, and

the record shows that his foster parent “meets all of his basic needs,” provides a

safe and stable environment for him, shares a special bond with him, and wants

to adopt him.    Contrastingly, Sanders testified that Father had not told her

anything “set in stone” about where he planned to live when released.

      Because he was born prematurely, Dustin has health problems that require

constant monitoring and attention. He suffers from asthma and gastric reflux,

which causes him to spit up when he eats. His foster parent, whose occupation

is in the medical field, takes him to the hospital when he has issues with

breathing, keeps all necessities—including food and medication—in stock in her

home, and shares a special bond with him that is obvious from their interactions.

In addition to his medical treatments, Dustin also receives physical and speech

therapy services to get him on target developmentally with other children his age.

At trial, Sanders suggested that Father could not provide a safe, stable

environment for Dustin and that a suitable placement would be with someone

who is medically trained or someone who has had long-term contact with Dustin

and is able to identify when he has a medical problem that requires attention.

      8
       The record does not indicate whether Father was placed on assaultive
status or what assaultive status entails.


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      We conclude that this evidence and the remaining evidence presented at

trial is legally and factually sufficient to clearly and convincingly support the trial

court’s judgment because the evidence allowed the trial court to form a firm

conviction or belief that termination is in Dustin’s best interest. See Tex. Fam.

Code Ann. § 161.001(2); J.P.B., 180 S.W.3d at 573; C.H., 89 S.W.3d at 28; see

also Holley, 544 S.W.2d at 371–72. Specifically, we conclude that although the

record contains some evidence that a factfinder could have weighed against a

decision to terminate, 9 the trial court could have formed a firm conviction or belief

that termination is in Dustin’s best interest from the evidence of Father’s pattern

of violent behavior (including violence that endangered Dustin in the womb), his

lack of stability and ability to care for Dustin now and in the future, his continued

incarceration, and his lengthy criminal history. See In re M.R., 243 S.W.3d 807,

819 (Tex. App.—Fort Worth 2007, no pet.) (concluding that incarceration can be

considered as endangering conduct when it affects a parent’s ability to provide

safe living conditions or to ensure the safety and well-being of the child); In re

S.F., 32 S.W.3d 318, 321–22 (Tex. App.—San Antonio 2000, no pet.) (holding



      9
        For example, Father testified that he had been “put in line” for cognitive
intervention and parenting classes. Sanders testified that she did not know
whether Father could show positive parenting skills with Dustin, how Father
would react to being in the presence of a child, or whether Father would be
willing to meet Dustin’s medical needs. Father testified that he would be
released, at the latest, in August 2014. He also testified that employment at a
body shop awaited him upon his release. Finally, Father testified that he had
been “falsely accused” of his assault crimes although he had pled guilty to them.


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that a father’s criminal behavior before incarceration and continued misbehavior

during incarceration showed a pattern of conduct detrimental to a child).

      Additionally, the trial court’s decision to terminate could have been guided

by the evidence of Father’s failure to complete his service plan, the foster

parent’s bond with Dustin, and the foster parent’s ability to properly care for him.

See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied)

(concluding that stability and permanence are important to the growth of a child

and affirming a finding that termination was in a child’s best interest when the

child was thriving in foster care); Cervantes-Peterson v. Tex. Dep’t of Family &

Protective Servs., 221 S.W.3d 244, 255 (Tex. App.—Houston [1st Dist.] 2006, no

pet.) (en banc) (concluding that a mother’s failures to follow a service plan or to

attend appointments arranged by the Department supported a trial court’s finding

that termination was in the child’s best interest); In re U.P., 105 S.W.3d 222,

230–31 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (op. on reh’g)

(considering a child’s bond with a foster family as a factor supporting the child’s

best interest in the termination of a father’s parental rights).

      Because we hold that the evidence is legally and factually sufficient to

support the trial court’s judgment, we overrule Father’s only issue.




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                                    Conclusion

      Having overruled Father’s sole issue, we affirm the trial court’s order

terminating his parental rights to Dustin.


                                                 /s/ Terrie Livingston

                                                 TERRIE LIVINGSTON
                                                 CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

DELIVERED: October 9, 2014




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