Opinion filed February 28, 2019




                                        In The


        Eleventh Court of Appeals
                                     ___________

                                  No. 11-18-00233-CV
                                     ___________

                IN THE INTEREST OF W.J.S., A CHILD


                     On Appeal from the 266th District Court
                              Erath County, Texas
                        Trial Court Cause No. CV34914


                     MEMORANDUM OPINION
      W.J.S.’s mother filed a petition to terminate the parent-child relationship
between W.J.S. and his father. The trial court held a bench trial and subsequently
entered an order in which it terminated the father’s parental rights. The father filed
this appeal.   In a single issue on appeal, he challenges the legal and factual
sufficiency of the evidence. We affirm.
      Termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). To determine on
appeal if the evidence is legally sufficient in a parental termination case, we review
all of the evidence in the light most favorable to the finding and determine whether
a rational trier of fact could have formed a firm belief or conviction that its finding
was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the
evidence is factually sufficient, we give due deference to the finding and determine
whether, on the entire record, a factfinder could reasonably form a firm belief or
conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002).
      To terminate parental rights, it must be shown by clear and convincing
evidence that the parent has           committed     one of the acts        listed   in
Section 161.001(b)(1)(A)–(U) and that termination is in the best interest of the child.
FAM. § 161.001(b). In this case, the trial court found that Appellant had failed to
support the child in accordance with Appellant’s ability during a period of one year
ending within six months of the date that the petition was filed and that Appellant
had knowingly engaged in criminal conduct that resulted in his conviction and
confinement or imprisonment and inability to care for the child for not less than two
years from the date that the petition was filed. See id. § 161.001(b)(1)(F), (Q). The
trial court also found that termination of Appellant’s parental rights would be in the
child’s best interest. See id. § 161.001(b)(2).
      Appellant does not challenge the specific findings made by the trial court
regarding Appellant’s failure to support the child and Appellant’s conviction and
confinement and inability to care for the child for the requisite period. Instead,
Appellant cites In re E.N.C. and argues that the evidence must show that Appellant
“engaged in conduct endangering the physical or emotional well-being of his
child[].” See In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). We disagree.
      In E.N.C., the trial court specifically found that the parent had engaged in
conduct or knowingly placed his children with persons who engaged in conduct that
endangered the children’s physical or emotional well-being. Id. at 801–02; see FAM.
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§ 161.001(b)(1)(E). The trial court in the case before us did not make any such
finding and did not base the termination of Appellant’s rights on subsection (E).
Thus, Section 161.001(b)(1)(E) and the portion of E.N.C. that Appellant relies upon
are not applicable to this appeal.
      Appellant does, however, argue that termination was not shown to be in the
best interest of the child. With respect to the best interest of a child, no unique set
of factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland
2010, pet. denied). But courts may use the non-exhaustive Holley factors to shape
their analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These
include, but are not limited to, (1) the desires of the child, (2) the emotional and
physical needs of the child now and in the future, (3) the emotional and physical
danger to the child now and in the future, (4) the parental abilities of the individuals
seeking custody, (5) the programs available to assist these individuals to promote
the best interest of the child, (6) the plans for the child by these individuals or by the
agency seeking custody, (7) the stability of the home or proposed placement, (8) the
acts or omissions of the parent that may indicate that the existing parent-child
relationship is not a proper one, and (9) any excuse for the acts or omissions of the
parent. Id. Additionally, evidence that proves one or more statutory grounds for
termination may also constitute evidence illustrating that termination is in the child’s
best interest. C.J.O., 325 S.W.3d at 266.
      The record in this case reflects that W.J.S. was eight years old at the time of
trial. W.J.S. has been diagnosed with ADHD and is emotionally disturbed “to a
pretty severe extent.”
      Appellant has an extensive criminal history and has been incarcerated for
much of the child’s life. In 2016, Appellant was sentenced to serve a ten-year term
of confinement. At one point when Appellant was out of prison, he “ran off with”
then three-year-old W.J.S. during a visit. Appellant kept W.J.S. for about four
                                            3
months and would not let W.J.S. have any contact with his mother. Appellant’s
mother assisted Appellant in this endeavor. As a result of that ordeal, W.J.S. suffered
“severe separation anxiety.” W.J.S. has since indicated that he does not want to be
around Appellant or Appellant’s mother. W.J.S.’s mother described Appellant’s
family as “toxic” and harmful to W.J.S.
        W.J.S.’s mother testified that her fiancé planned to adopt W.J.S. if the trial
court terminated Appellant’s rights. She also testified that her fiancé had been a
father figure to W.J.S. for the past five years; W.J.S. referred to the mother’s fiancé
as his “dad.”
        Based upon the Holley factors and the evidence in the record, we cannot hold
that the trial court’s best interest finding is not supported by clear and convincing
evidence. See Holley, 544 S.W.2d at 371–72. The trial court could reasonably have
formed a firm belief or conviction that it would be in the child’s best interest for
Appellant’s parental rights to be terminated. We hold that the evidence is legally
and factually sufficient to support the termination of Appellant’s parental rights and
the trial court’s best interest finding. We overrule Appellant’s sole issue on appeal.
        We affirm the trial court’s order of termination.




                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE
February 28, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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