                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

                                               '
                                                              No. 08-11-00288-CV
                                               '
                                                                     Appeal from
 IN THE INTEREST OF S.M., A CHILD              '
                                                                  65th District Court
                                               '
                                                            of El Paso County, Texas
                                               '

                                               '                  (TC # 2010CM724)


                                        OPINION

       In this accelerated appeal, Appellant (Raul) challenges an order terminating his parental

rights to S.M. and appointing the Texas Department of Family and Protective Services as S.M.’s

sole managing conservator.    He brings five issues for review, four of which relate to the

sufficiency of the evidence supporting termination. The remaining issue attacks the denial of a

motion for continuance. For the reasons that follow, we affirm.

                                FACTUAL BACKGROUND

       S.M. was born on July 16, 2009. Raul has been incarcerated all of S.M.’s life and has

never met his daughter. On February 2, 2010, at approximately 3 p.m., S.M.’s mother left the

infant alone in a motel room. S.M. was not quite seven months old at the time. A neighboring

motel guest heard the baby crying and discovered her alone on the bed. The neighbor took her to

another motel resident who knew S.M.’s mother. Around 2 a.m. on February 3, 2010, S.M.’s

mother “strolled back in, intoxicated.” An altercation occurred between S.M.’s mother and the

resident caring for S.M. The police were dispatched to the motel and the Department was called.
The police arrested S.M.’s mother for child endangerment, and the Department caseworker

placed the baby in foster care.

       The following day, the Department filed its original petition for protection of a child,

seeking conservatorship of S.M. and termination of the parental rights of both parents. The

motion was accompanied by an affidavit from the caseworker detailing the events leading to

removal.    On February 5, 2010, the trial court entered temporary orders appointing the

Department as temporary sole managing conservator. The mother’s rights were terminated prior

to trial, which was scheduled for September 20, 2011.

       At trial, the Department introduced judgments from Raul’s four prior convictions. Three

of the convictions involved assault and one involved possession of cocaine. In May 2001, Raul

pled guilty to assault of a police officer. He was placed on probation for five years, but less than

seven months later, his probation was revoked for failing to meet with his probation officer as

required. Raul admittedly absconded to Florida to try to get a job and to “start a new support for

[his] family.” As a result of violating the terms of his probation, Raul was incarcerated for three

years. He evidently was released early because on December 22, 2003, he was convicted for

possession of cocaine and ordered to serve 180 days.         Finally, the Department introduced

evidence of two separate convictions of family violence assault causing bodily injury. Both were

committed against S.M.’s mother. Raul pled guilty to the first offense and was sentenced to

seventy-five days in the El Paso County Jail. He also pled guilty to the second offense and was

sentenced to four years’ imprisonment.

       At trial, Raul admitted he pled guilty to each and every offense, but claimed he was

actually innocent of all charges. For example, he testified that because of his experiences with




                                               -2-
drugs, he’s a good role model for S.M. and is “educated enough to tell her, Look, don’t be doing

this.” However, the following question and answer session followed:

       Q. [BY COUNSEL FOR S.M.]: You didn’t learn that after your first assault
       conviction?

       A. [BY APPELLANT]: No, I did not learn that, because it was simply not an
       assault. The police officer assaulted me.

       Q. Okay. You didn’t learn that after your conviction for possession of cocaine or
       a cocaine pipe?

       A. It wasn’t possession of cocaine.

       Q. You pled guilty to possession of cocaine?

       A. I pled guilty. I was not competent in the field of law. If I was competent in
       the field of law, I would have won all those cases.

       Q. You still didn’t learn from being incarcerated, a second time, that you
       shouldn’t do stuff against the law; correct?

       A. It was -- correct. Yes. I kept on doing it and doing it.

       Q. But you’re testifying before the Court now that you’ve learned your lesson
       now and you don’t intend to commit any crime?

       A. Yes, sir.

       Q. Even though you assaulted a family member?

       A. It was not an assault. Of course, under the law, even if I raise my voice to her
       and she feels threatened, that is considered assault.

       Q. But you physically touched her; correct?

       A. Yes, I physically touched her.

       Q. After being incarcerated for assault once, incarcerated for cocaine once, you
       still broke the law with an assault on a family member?

       A. Yes.

                                           .    .      .

       Q. [BY MR. SHANE]: Sir, earlier you testified that you had pled guilty to
       hitting [S.M.’s mother] with your hand on her face; correct?


                                               -3-
       A. No, I did not. I pled guilty, but I did not hit her on the face. It was due to the
       fact the State does not -- if I was to stay in jail, it’s three months. It’s a Class A
       misdemeanor. It’s three months without -- I need to get out, make money, so on.
       So I pleaded guilty.

       Q. You were under oath when you pled guilty; right?

       A. Yes, I pleaded guilty under oath.

       Q. Just like you’re under oath today?

       A. Yes.

       Q. So you’re telling the Court, prior, when you pled guilty under oath and said
       you did that, you were not telling the truth?

       A. I wanted to get out, yes.

       Q. You were not telling the truth under oath?

       A. We had a complication.

       Q. Sir, it’s a simple question. Did you lie under oath when you pled guilty?

       A. That I hit her on the face? Yes, I lied under oath.

       Q. Taking an oath really doesn’t mean anything to you whether you’re going to
       tell the truth or not?

       A. (No audible response.)

       Q. So under oath you lied; correct?

       A. Under that day, yes. That day, I did not assault her on the face.

       Q. But you lied under oath when you said you did?

       A. Right. That day, yes.

       Raul also testified regarding his permanency plan for S.M. “My plan for the future is to

educate my child, try to keep her away from society.” He emphasized that he does not believe

society is a proper role model and that he wants to teach his daughter that the system is corrupt.

In fact, he wants S.M. to be brought to the prison to visit him so that “she could see what the

State is doing to me and other people.”


                                               -4-
         Raul acknowledged at trial that currently he has no way of supporting S.M. because he is

incarcerated, but he has completed a drug course program and is up for parole. Once out of

prison he plans to look for a job and to live in a one-bedroom duplex owned by his uncle. His

uncle also testified. He was willing to help Raul upon release from prison. The uncle lived in a

duplex with a two bedroom unit on one side and a one bedroom unit on the other. The one

bedroom unit was unoccupied and Raul could stay there as long as he wanted. But it had been

“kind of destroyed” by the previous tenants, and it did not have electricity, a refrigerator, or a

stove.

         Tanya Berry, a CPS specialist and the on-going caseworker for S.M., testified regarding

the Department’s plans for S.M.         Adoption would be in the child’s best interest.           Raul’s

permanency plan was not feasible because:

         As [Appellant], himself, testified, he’s not sure if he is going to be paroled or not.
         So that leaves us in a situation where, if we waited around to see if he was going
         to be paroled, [S.M.] wouldn’t reach permanency. She wouldn’t reach -- she
         would just be sitting in the system waiting for him.

Berry had been in contact with Raul’s sister who is interested in adopting S.M. She is not

interested in temporary placement while awaiting Raul’s release from prison. The Department

had not as yet performed a home study because the sister recently moved, but the investigation

was ongoing. Berry also testified that background checks were performed for all the relatives in

the home and none had CPS or criminal histories. Berry then explained an alternative plan in the

event the child’s aunt could not or did not adopt her. S.M. has been with the same foster parents

since she was removed from her mother’s care in February 2010 and has firmly bonded with

them.




                                                 -5-
       Berry described S.M. as a “very active child . . . She’s a lovable child. Loves to be

outside. Loves to run around.” The child has a speech delay but is receiving services and is

“[v]ery adoptable.”

       After hearing all the evidence, the trial court found that there was clear and convincing

evidence to support termination of Raul’s parental rights under subsections (E) and (Q) of Texas

Family Code Section 161.001(1). The trial court also found that termination was in S.M.’s best

interest as required by Texas Family Code Section 161.001(2).

               DENIAL OF APPELLANT’S MOTION FOR CONTINUANCE

       We begin with Raul’s third point of error involving the denial of his request for a

continuance.

                                      Standard of Review

       We review the denial of a motion for continuance for an abuse of discretion. Villegas v.

Carter, 711 S.W.2d 624, 626 (Tex. 1986); see Serrano v. Ryan’s Crossing Apartments, 241

S.W.3d 560, 564 (Tex.App.--El Paso 2007, pet. denied); Apodaca v. Rios, 163 S.W.3d 297, 301

(Tex.App.--El Paso 2005, no pet.). Absent a clear abuse of discretion, a trial court’s action in

granting or denying a motion for continuance will not be disturbed. Villegas, 711 S.W.2d at 626;

Wilborn v. GE Marquette Medical Systems, Inc., 163 S.W.3d 264, 267 (Tex.App.--El Paso 2005,

pet. denied). A trial court “abuses its discretion when it reaches a decision so arbitrary and

unreasonable as to amount to a clear prejudicial error of law.” Johnson v. Fourth Court of

Appeals, 700 S.W.2d 916, 917 (Tex. 1985).

       In determining whether a trial court has abused its discretion, we do not substitute our

judgment for that of the trial court, but decide only whether the trial court acted without

reference to any guiding rules or principles. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007);



                                             -6-
Cire v. Cumings, 134 S.W.3d 835, 838-39 (Tex. 2004); In the Interest of G.A.H. and K.D.B, No.

02-11-00015-CV, 2011 WL 4711980, at *3 (Tex.App.--Fort Worth, Oct. 6, 2011, no pet.)(mem.

op.). In other words, we cannot conclude that a trial court abused its discretion merely because

we would have ruled differently under the same circumstances. E.I. du Pont de Nemours and

Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see Low, 221 S.W.3d at 620; In the

Interest of G.A.H. and K.D.B,, 2011 WL 4711980, at *3.

                                Non-Compliance With Rule 251

       A motion for continuance must be in writing, state the specific facts supporting the

motion, and be verified or supported by an affidavit.        See Serrano, 241 S.W.3d at 564;

TEX.R.CIV.P. 251. It shall not be granted except for “sufficient cause supported by affidavit, or

by consent of the parties, or by operation of law.” TEX.R.CIV.P. 251. If the motion is not

verified or supported by an affidavit, we presume the trial court did not abuse its discretion by

denying a continuance. See Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex.

1996); Serrano, 241 S.W.3d at 564; Wilborn, 163 S.W.3d at 267; Southwest Country

Enterprises, Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex.App.--Fort Worth 1999, pet.

denied); Mathew v. McCoy, 847 S.W.2d 397, 399-400 (Tex.App.--Houston [14th Dist.] 1993, no

writ). Verification is “[a] formal declaration made in the presence of an authorized officer, such

as a notary public, by which one swears to the truth of the statements in the document.” Andrews

v. Stanton, 198 S.W.3d 4, 8 (Tex.App.--El Paso 2006, no pet.), citing Black’s Law Dictionary

1556 (7th Ed. 1999).

       The motion was signed by defense counsel, but it was neither verified nor supported by

an affidavit. Accordingly, the trial court did not abuse its discretion in denying the motion. See

In re G.A.H., 2011 WL 4711980, at *4; In the Interest of C.P.V.Y., 315 S.W.3d 260, 270



                                              -7-
(Tex.App.--Beaumont 2010, no pet.); see also In the Interest Z.C., 280 S.W.3d 470, 478

(Tex.App.--Fort Worth 2009, pet. struck)(holding that where the motion for continuance was

unsworn and not supported by an affidavit, “under the plain language of the rule, the trial court

was without discretion to grant it”). Issue Three is overruled.

                         TERMINATION OF PARENTAL RIGHTS

       Raul’s remaining four issues challenge the legal and factual sufficiency of the evidence to

support the trial court’s termination order. The natural right that exists between parents and their

children is one of constitutional magnitude. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see

also Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599

(1982)(acknowledging that the right of a parent to maintain custody of and raise his or her child

“is an interest far more precious than any property right.”); In the Interest of M.S., E.S., D.S.,

S.S., and N.S., 115 S.W.3d 534, 547 (Tex. 2003)(noting that Texas courts recognize that “a

parent’s interest in maintaining custody of and raising his or her child is paramount”).

Accordingly, involuntary termination of parental rights is a drastic remedy which divests the

parent and child of all legal rights, privileges, duties, and powers normally existing between

them, except for the child’s right to inherit from the parent. Id.; In the Interest of D.S.P. and

H.R.P., 210 S.W.3d 776, 778 (Tex.App.--Corpus Christi 2006, no pet.). For this reason, we

strictly scrutinize termination proceedings and construe any statutes authorizing involuntary

termination in favor of the parent. Holick, 685 S.W.2d at 20-21.

       Although parental rights are of constitutional magnitude, they are not absolute. In the

Interest of C.H., 89 S.W.3d 17, 26 (Tex. 2002)(“Just as it is imperative for courts to recognize

the constitutional 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.”).



                                               -8-
Instead, because of the severity and permanency of termination, due process requires the party

seeking to terminate parental rights prove the necessary elements by the heightened burden of

proof of clear and convincing evidence. In the Interest of B.L.D., 113 S.W.3d 340, 353-54 (Tex.

2003). This heightened standard is likewise statutorily required. In a proceeding to terminate

parental rights, the petitioner must demonstrate by clear and convincing evidence that: (1) the

parent committed one or more of the acts specifically set forth in Texas Family Code section

161.001(1) as grounds for termination; and (2) that termination is in the best interest of the child.

See TEX.FAM.CODE ANN. § 161.001 (West 2008). “Clear and convincing evidence” means

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.” TEX.FAM.CODE ANN. §

101.007 (West 2008); see In the Interest of J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also In

the Interest of J.A.J., 243 S.W.3d 611, 616 (Tex. 2007)(contrasting the standards applied in

termination proceedings and the standards applied in modification proceedings); In the Interest

of C.D., No. 02-10-00070-CV, 2011 WL 1743688, at *4 (Tex.App.--Fort Worth May 5, 2011, no

pet.).

                                       Standards of Review

         When reviewing legal sufficiency challenges to termination findings, we consider all of

the evidence in the light most favorable to the finding “to determine whether a reasonable 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), quoting In re J.F.C., 96 S.W.3d at 266. We give deference to the

fact finder’s conclusions and presume the fact finder resolved any disputed facts in favor of its

findings, so long as a reasonable fact finder could do so. Id.; In re J.F.C., 96 S.W.3d at 266. We

disregard any evidence that a reasonable fact finder could have disbelieved, or found to have



                                                -9-
been incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re

J.F.C., 96 S.W.3d at 266.

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

finder’s findings, and we cannot supplement such judgment with our own. In the Interest of

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In the Interest of C.D., No. 02-10-00070-CV, 2011

WL 1743688, at *5 (Tex.App.--Fort Worth May 05, 2011, no pet.). We determine whether, “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, then the evidence is factually insufficient.” In re H.R.M.,

209 S.W.3d at 108; In re J.F.C., 96 S.W.3d at 266; In the Interest of T.G., No. 14-09-00299-CV,

2010 WL 1379977, at *5 (Tex.App.--Houston [14th Dist.] Apr. 8, 2010, no pet.).

                  Finding of Endangerment Under Subsection 161.001(1)(E)

       In his first two issues, Raul challenges the factual sufficiency of the evidence to support

involuntary termination under Section 161.001(1), subsections (E) and (Q). However, only one

predicate violation under Section 161.001(1) is necessary to support a termination decree.

TEX.FAM.CODE ANN. § 161.001(1); In re D.M., 58 S.W.3d at 813; In the Interest of S.F., 32

S.W.3d 318, 320 (Tex.App.--San Antonio 2000, no pet.); see also Texas Department of Human

Services v. E.B., 802 S.W.2d 647, 649 (Tex. 1990)(op. on reh’g). For the reasons discussed

below, we conclude the evidence is factually sufficient to support the trial court’s finding under

subsection (E) and therefore we need not address the challenges with respect to subsection (Q).

       Under subsection E of Section 161.001(1), the trial court was required to find, by clear

and convincing evidence, that Raul, “engaged in conduct or knowingly placed the child with

persons who engaged in conduct which endangers the physical or emotional well-being of the



                                              - 10 -
child.” TEX.FAM.CODE ANN. § 161.001(1)(E). The term “endanger” means that the child

was exposed to loss or injury or jeopardized. See Texas Department of Human Services v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987).          Endangerment encompasses “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. Likewise, while endangerment often entails physical endangerment, the

statute does not require that conduct be directed at a child or cause actual harm; rather, it is

sufficient if the conduct endangers the emotional well-being of the child. See id.; In the interest

of U.P., 105 S.W.3d 222, 233 (Tex.App.--Houston [14th Dist.] 2003, pet. denied); Robinson v.

Texas Department of Protective & Regulatory Services, 89 S.W.3d 679, 686 (Tex.App.--Houston

[1st Dist.] 2002, no pet.). Thus, the court’s inquiry encompasses acts that endanger a child’s

physical or emotional well-being, or both. See Boyd, 727 S.W.2d at 534; Smith v. Sims, 801

S.W.2d 247, 250 (Tex.App.--Houston [14th Dist.] 1990, no pet.).

       The relevant inquiry for termination under Section 161.001(1)(E), is whether evidence

exists that the endangerment was the direct result of the parent’s conduct, including acts,

omissions, or failures to act. TEX.FAM.CODE ANN. § 161.001(1)(E); In the Interest of J.T.G.,

121 S.W.3d 117, 125 (Tex.App.--Fort Worth 2003, no pet.). Termination requires a voluntary,

deliberate, and conscious course of conduct; it must be based on more than a single act or

omission. In re J.T.G., 121 S.W.3d at 125; In the Interest of J.W., 152 S.W.3d 200, 205

(Tex.App.--Dallas 2004, pet. denied). It is not necessary that the parent’s conduct be directed at

the child or that the child actually suffer injury. Boyd, 727 S.W.2d at 533; In re J.T.G., 121

S.W.3d at 125.     Further, in considering whether a relevant course of conduct has been

established, a court properly may consider both actions and inactions occurring both before and

after a child’s birth. See In the Interest of S.T., 263 S.W.3d 394, 401-02 (Tex.App.--Waco 2008,



                                              - 11 -
pet. denied); see In the Interest of A.S., D.S., and L.A.S., 261 S.W.3d 76, 83 (Tex.App.--Houston

[14th Dist.] 2008, pet. denied).

       The endangerment to the child’s well-being may be inferred from parental misconduct,

including conduct that subjects the child to a life of uncertainty and instability. Boyd, 727

S.W.2d at 533; In the Interest of R.W., 129 S.W.3d 732, 738-39 (Tex.App.--Fort Worth 2004,

pet. denied)(considering drug and alcohol abuse in endangerment finding). Evidence of criminal

conduct, convictions, and imprisonment and its effect on a parent’s life and ability to parent may

establish an endangering course of conduct. In re J.T.G., 121 S.W.3d at 133. Imprisonment

alone does not constitute an endangering course of conduct but it is a fact properly considered on

the endangerment issue. Boyd, 727 S.W.2d at 533-34; In re R.W., 129 S.W.3d at 743-44.

Routinely subjecting a child to the probability that she will be left alone because her parent is in

jail, endangers the child’s physical and emotional well-being. See In the Interest of S.D., 980

S.W.2d 758, 763 (Tex.App.--San Antonio 1998, pet. denied. However, “the relationship of the

parent and child, as well as efforts to improve or enhance parenting skills, are relevant in

determining whether a parent’s conduct results in ‘endangerment’ under section 161.001(1)(E),

even where the parent is incarcerated.” In the Interest of D.T., 34 S.W.3d 625, 640 (Tex.App.--

Fort Worth 2000, pet. denied).

       In this case, there is evidence of multiple criminal convictions, including three

convictions for assault causing bodily injury, two of which involved domestic violence against

S.M.’s mother. One of those occurred during pregnancy. Even though all of these offenses

occurred before S.M. was born, they can still be considered as part of a voluntary, deliberate, and

conscious course of conduct that had the effect of endangering S.M. See In the Interest of R.W.,

129 S.W.3d 732, 738 (Tex.App.--Fort Worth 2004, pet. denied); Harris v. Herbers, 838 S.W.2d



                                               - 12 -
938, 942-43 (Tex.App.--Houston [1st Dist.] 1992, no writ); see also In re S.D., 980 S.W.2d at

763 (conduct that routinely subjects a child to the probability that the child will be left alone

because a parent is jailed endangers both the physical and emotional well-being of the child).

Abusive and violent criminal conduct by a parent can produce an environment that endangers the

well-being of a child. In the Matter of B.R., 822 S.W.2d 103, 106 (Tex.App.--Tyler 1991, writ

denied). Evidence as to how a parent has treated another child or spouse is relevant regarding

whether a course of conduct under Section 161.001(1)(E) has been established. In the Interest of

D.T., 34 S.W.3d 625, 636-37 (Tex.App.--Fort Worth 2000, pet. denied). Evidence that a person

has engaged in abusive conduct in the past permits an inference that the person will continue

violent behavior in the future. Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 824

(Tex.App.--Fort Worth 2007, no pet.); In the Interest of M.G.M., 163 S.W.3d 191, 202

(Tex.App.--Beaumont 2005, no pet.). Instead of taking any responsibility for his prior criminal

conduct, Raul claimed that he was actually innocent, despite his guilty pleas. In so doing, he

admitted to perjury. He proclaims that he is a victim of a corrupt system, which is the lesson he

intends to teach his daughter.

       We must conclude that there is sufficient evidence from which a rational trier of fact

could have formed a firm belief or conviction that Raul engaged in a course of conduct

endangering his daughter’s physical or emotional well-being. Thus, the evidence is factually

sufficient to support the trial court’s termination finding on the Section 161.001(1)(E) ground.

We overrule Issues One and Two. We must now determine whether the evidence was legally

and factually sufficient to support the trial court’s finding that termination was in the best

interests of the child. See TEX.FAM.CODE ANN. § 161.001(2).




                                             - 13 -
                                     Best Interest of the Child

       In Issues four and five respectively, Appellant challenges the legal and factual sufficiency

of the evidence to support the trial court’s determination that terminating his parental rights was

in the best interest of his daughter. There is a strong presumption that a child’s best interests

are served by maintaining the parent-child relationship. In the Interest of L.M., 104 S.W.3d 642,

647 (Tex.App.--Houston [1st Dist.] 2003, no pet.). The Supreme Court has set forth a list of

non-exclusive factors which can be used to determine a child’s best interests. See Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The determination of a child’s best interest does

not require proof of any unique set of factors, and it does not limit proof to any specific factors.

Id. Under Holley, in reviewing the sufficiency of the evidence to support a best-interest finding,

courts may consider (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) any excuse for the parent’s acts or omissions. Id.

The same evidence of acts or omissions used to establish grounds for termination under Section

161.001(1) may be probative in determining the best interests of the child. In the Interest of

C.H., 89 S.W.3d 17, 28 (Tex. 2002); In re L.M., 104 S.W.3d at 647. Termination of the parent-

child relationship is not justified when the evidence shows merely that a parent’s failure to

provide a more desirable degree of care and support of the child is due solely to misfortune or the

lack of intelligence or training, and not to indifference or malice. Clark v. Dearen, 715 S.W.2d



                                               - 14 -
364, 367 (Tex.App.--Houston [1st Dist.] 1986, no writ).

       At the time of trial, S.M. was only two years old and far too young to express her desires

to the court. Clearly, she has never met her father and therefore there is no reason to believe that

the child has any conscious knowledge of him. See Walker v. Texas Department of Family and

Protective Services, 312 S.W.3d 608, 619 (Tex.App.--Houston [1st Dist.] 2009, pet. denied).

“The goal of establishing a stable, permanent home for a child is a compelling state interest.”

Walker, 312 S.W.3d at 619, citing In re C.E.K., 214 S.W.3d 492, 498 (Tex.App.--Dallas 2006,

no pet.). While there was testimony that Raul once asked his uncle to call S.M.’s mother, he did

not make any other effort to meet or contact his child, nor did he recall ever asking a family

member to contact S.M. This failure to attempt or maintain any significant contact with S.M.

supports the conclusion that Raul is not able to meet S.M.’s physical and emotional needs. See

In the Interest of T.G., No. 14-09-00299-CV, 2010 WL 1379977, at *9 (Tex.App.--Houston

[14th Dist.] Apr. 8, 2010, no pet.). Additionally, the evidence discussed in support of the trial

court’s finding of endangerment, is also probative in determining the child’s best interest. See In

re C.H., 89 S.W.3d at 28. His multiple convictions, including a conviction for domestic assault

during pregnancy, demonstrate a lack of parental ability.

       Caseworker Tanya Berry testified that S.M.’s permanency plan is adoption. Currently,

the Department is looking at Raul’s sister as a potential adoptive parent. The child’s aunt has

expressed her desire to adopt S.M., and she, as well as the other members of her household, have

all passed background checks. There is also a back-up plan for adoption by S.M.’s foster family

as the child is doing well in their household

       In light of all of the evidence, the trial court could have reasonably formed a firm belief

or conviction that termination of Raul’s parental rights was in the best interest of S.M.



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Accordingly, we overrule Issues Four and Five and affirm the order of termination.



September 26, 2012                   _______________________________________________
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.




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