Opinion filed January 30, 2014




                                          In The


          Eleventh Court of Appeals
                                        __________

                                    No. 11-13-00240-CV
                                        __________

                  IN THE INTEREST OF S.E.C., A CHILD


                      On Appeal from the 118th District Court
                                    Howard County, Texas
                              Trial Court Cause No. 48,231


                        MEMORAND UM OPI NI ON
      This is an appeal from an order terminating the parental rights of the mother
and father of S.E.C. 1 The father appeals the termination of his rights and, in five
issues on appeal, challenges the legal and factual sufficiency of the evidence to
support termination. We affirm.
      The termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2013). To
determine if the evidence is legally sufficient in a parental termination case, we
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       The mother did not appeal.
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(1)(A)–(T) and that termination is in the best interest of
the child. FAM. § 161.001.
      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.
      In this case, the trial court found that the father had committed one of the
acts listed in Section 161.001(1). Specifically, the trial court found that the father
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had failed to comply with the provisions of a court order that established the
actions necessary for him to obtain the return of S.E.C., a child who had been in
the managing conservatorship of the Department of Family and Protective Services
for not less than nine months as a result of removal from the parent for abuse or
neglect. The trial court also found, pursuant to Section 161.001(2), that termina-
tion of the father’s parental rights would be in the best interest of the child.
      The record shows that the Department of Family and Protective Services
removed two-year-old S.E.C. from the care of his parents after S.E.C.’s half-
brother was severely injured. S.E.C. was originally placed with a family member,
but after a short period of time, that placement failed and S.E.C. was placed in
foster care.
      Donna Carrasco, a licensed professional counselor, testified that she began
counseling S.E.C. in February 2012 due to S.E.C.’s major aggressive behaviors,
such as acting out, hitting, kicking, biting, and threatening to stab people. S.E.C.
also hoarded food. Carrasco was very concerned about S.E.C.’s lack of attachment
and, if he had not already developed “attachment disorder,” his potential to develop
that disorder. S.E.C. was also delayed in all areas: emotional, cognitive, speech,
and physical.    Carrasco worked with S.E.C. and S.E.C.’s foster parents, who
implemented every strategy that Carrasco suggested. As a result, S.E.C. is now
“happy, healthy, well-developed, very attached. Developmentally on track. Emo-
tionally on track.” S.E.C. had become attached to and had bonded with his foster
parents. Carrasco believed that it would be detrimental to S.E.C. to remove him
from his foster parents.
      The Department’s conservatorship caseworker, Kristie Saenz, testified that
S.E.C. was doing very well in his foster home. He had bonded to both foster
parents and to the other foster child in that home. Saenz believed that it would be
in S.E.C.’s best interest to terminate the father’s parental rights. Some of the
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reasons for Saenz’s opinion were the following: the father’s extensive criminal
history, the father’s membership in the Latin King gang, and the father’s alleged
abuse of S.E.C.’s mother. Saenz testified that, at the beginning of this case, there
was a six-month period when the father was not incarcerated and had the
opportunity to complete his services but “chose not to do so.”
      At the time of trial, S.E.C. was almost four years old. He had been in the
same foster home for one year and seven months. S.E.C.’s foster mother testified
about S.E.C.’s progress since being placed in her home. According to the foster
mother, S.E.C. is now very happy and has “a sweet spirit about him.” The foster
mother testified that she and her husband would like to adopt S.E.C. The recom-
mendation of S.E.C.’s court-appointed special advocate was termination of the
parents’ rights and adoption by the foster parents.
      At the time of trial, the father was incarcerated and participated by
telephone. The father testified that he was incarcerated in a federal facility for
violating his probation and that he had previously been convicted of a conspiracy
involving less than fifty kilos of marihuana. The father was not sure when he
would be released from prison. The father stated that he had been out of prison for
about six months around 2011 or 2012 and that, during that period, he had “a little”
contact with S.E.C., “but not really.” At trial, the father was asked whether he had
had an opportunity to work any of the services that were outlined in the court
orders, and the father responded that he had not had “the time to get into that.”
The father testified that he had not completed the packets that the Department had
sent to him. He also testified that he had not taken parenting classes or obtained a
psychological evaluation, though both were available at the federal facility where
the father was incarcerated, but that he had taken a four-hour drug class.
      Section 161.001(1)(O) does not “make a provision for excuses” for a
parent’s failure to comply with the family service plan. In re J.S., 291 S.W.3d 60,
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67 (Tex. App.—Eastland 2009, no pet.). The Department produced clear and
convincing evidence from which the trial court could reasonably have formed a
firm belief that the father failed to comply with the provisions of a court order that
specifically established the actions necessary for him to obtain the return of S.E.C.
The trial court took judicial notice of the case file, which included the trial court’s
temporary order following the adversary hearing. In that order, the father was
ordered to submit to a psychological evaluation, attend counseling, complete
parenting classes, obtain a drug and alcohol assessment, and attend a batterer’s
intervention program. The order required an incarcerated parent to apply for,
participate in, and complete any and all services available at each place of
incarceration. The evidence showed that the father failed to complete the services
and, thus, failed to comply with the trial court’s order. The evidence also showed
that S.E.C. had been in the Department’s care for at least nine months and that
S.E.C. had been removed from the parents due to abuse or neglect. Thus, we hold
that the evidence is legally and factually sufficient to support the trial court’s
finding under Section 161.001(1)(O). See id. The father’s fourth issue on appeal is
overruled.
      Because the trial court did not find that the father committed any of the other
acts in Section 161.001(1)(A)–(T) and because a finding that a parent committed
one of the acts listed in Section 161.001(1)(A)–(T) is all that is required under that
statute, we need not address the father’s first, second, and third issues. In those
issues, the father challenged the sufficiency of the evidence to support other
potential findings under Section 161.001(1). See TEX. R. APP. P. 47.1.
      We also hold that, based on the evidence presented at trial and the Holley
factors, the trial court could reasonably have formed a firm belief or conviction
that termination of the father’s parental rights would be in the best interest of
S.E.C. See Holley, 544 S.W.2d at 371–72. Upon considering the record as it
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relates to 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 lack of any
bond between the father and S.E.C., the parental abilities of the father and the
foster parents, the conduct of the father, the programs available to assist the family,
the plans for the child by the Department, the father’s incarceration for an
unknown period of time, the stability of the child’s current placement, and the
father’s criminal history, we hold that the evidence is both legally and factually
sufficient to support the finding that termination of the father’s parental rights is in
the best interest of S.E.C. See id. The trial court’s finding as to best interest is
supported by clear and convincing evidence. The father’s fifth issue on appeal is
overruled.
      We affirm the trial court’s order of termination.




                                                      PER CURIAM


January 30, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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