                                 MEMORANDUM OPINION
                                         No. 04-08-00186-CV

                           IN THE INTEREST OF K.F.K., et. al, Children

                      From the 131st Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-PA-00899
                             Honorable Richard Garcia, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 31, 2009

AFFIRMED

           This is an appeal from the trial court’s order terminating Appellant Joseph Krist’s

parental rights to his children A.K., S.K., and H.K. (the children). Following a non-jury trial, the

trial court terminated Krist’s parental rights. Pursuant to section 263.405(b) of the Family Code,

Krist timely filed a motion for new trial and statement of appellate points with the trial court.

See TEX. FAM. CODE ANN. § 263.405(b) (Vernon 2009). The trial court denied the motion for

new trial and found Krist’s appellate points to be frivolous. See id. We affirm the order of the

trial court.

           On appeal, Krist asserts the trial court erred in terminating his parental rights based on

Krist’s (1) endangering the physical and emotional well-being of the children, (2) constructive
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abandonment, and (3) failure to comply with court ordered action. See TEX. FAM. CODE ANN.

§ 161.001(1)(E), (N), (O) (Vernon 2009). Accordingly, Krist asserts the trial court erred in

finding his appellate points frivolous.

A. Standards of Review

       1. Clear and Convincing Evidence

       A trial court may involuntarily terminate the parent-child relationship if it finds by clear

and convincing evidence that: (1) the parent has committed at least one of the grounds for

involuntary termination in section 161.001(1) of the Texas Family Code, and (2) “termination is

in the best interest of the child.” TEX. FAM. CODE ANN. § 161.001(1) (Vernon 2009); In re J.L.,

163 S.W.3d 79, 84 (Tex. 2005). Although the two elements must be proven independently, “the

same evidence may be probative of both issues.” In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

       The Texas Legislature acknowledges that the termination of parental rights is a drastic

remedy and is of such weight and gravity that due process requires the petitioner to justify

termination by “clear and convincing evidence.”          See TEX. FAM. CODE ANN. § 161.206(a)

(Vernon 2009); see also In re J.F.C., 96 S.W.3d 256, 264-65 (Tex. 2002). Under the Family

Code, clear and convincing evidence is defined as “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 (Vernon 2009); accord In re D.M.,

58 S.W.3d 801, 806 (Tex. App.—Fort Worth 2001, no pet.).

       2. Legal and Factual Sufficiency

       In a legal sufficiency review, an appellate court looks “at all the evidence in the light

most favorable to the finding to determine whether a reasonable [fact-finder] could have formed

a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d at 266; In re J.L.,




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163 S.W.3d at 85. We assume disputed facts were resolved in favor of the verdict if it is

reasonable to do so, and we disregard all evidence that could be reasonably disbelieved. In re

J.F.C., 96 S.W.3d at 266. To determine factual sufficiency, we consider the “evidence that the

factfinder could reasonably have found to be clear and convincing,” and we examine “whether

the evidence is such that a factfinder could reasonably form a firm belief or conviction” that the

allegations are true. Id. (citing In re C.H., 89 S.W.3d at 25). We also acknowledge that the State

may use several factors to satisfy both the legal and factual sufficiency under different

subsections of section 161.001(1). See TEX. FAM. CODE ANN. § 161.001(1) (Vernon 2009).

        3. Review on Determination That an Appeal Would Be Frivolous

        We review a trial court’s determination that an appeal would be frivolous for an abuse of

discretion. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.—San Antonio

1998, no pet.) (en banc); see also In re K.D., 202 S.W.3d 860, 866 (Tex. App.—Fort Worth

2006, no pet.). “In determining whether an appeal is frivolous, a judge may consider whether the

appellant has presented a substantial question for appellate review.” TEX. CIV. PRAC. & REM.

CODE ANN. § 13.003(b) (Vernon 2002); see also De La Vega, 974 S.W.2d at 154 (reiterating that

an appeal is frivolous if it lacks an arguable basis in law or in fact).

B. Texas Family Code Section 161.001(1)

        1. Endangering the Physical or Emotional Well-Being of the Children

        Under the Family Code, a Texas court may involuntarily terminate a parent’s rights if the

parent “engaged in conduct or knowingly placed the child with persons who engaged in conduct

which endangers the physical or emotional well-being of the child.” TEX. FAM. CODE ANN.

§ 161.001(1)(E) (Vernon 2009). The Texas Supreme Court defines “endanger” as “to expose [a

child] to loss or injury; to jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,




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533 (Tex. 1987). While “‘endanger’ means more than a threat of metaphysical injury or the

possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be

directed at the child or that the child actually suffers injury.” Id.; accord In re M.C., 917 S.W.2d

268, 269 (Tex. 1996). A parental course of “conduct that subjects a child to a life of uncertainty

and instability endangers the physical and emotional well-being of a child.” In re R.W., 129

S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied); see In re M.C., 917 S.W.2d 268,

270 (Tex. 1996) (per curiam) (“[N]eglect can be just as dangerous to the well-being of a child as

direct physical abuse.”). The parental course of conduct includes both the parent’s actions and

the parent’s omissions or failures to act. See In the Interest of B.S.T., 977 S.W.2d 481, 484 (Tex.

App.—Houston [14th Dist.] 1998, no pet.), disapproved of on other grounds by In re C.H., 89

S.W.3d at 26.

       As Krist points out, imprisonment, standing alone, does not constitute “engag[ing] in

conduct . . . which endangers the physical or emotional well-being of the child.” See TEX. FAM.

CODE ANN. § 161.001 (Vernon 2009). Yet, it is a fact properly considered on the issue of

endangerment. Boyd, 727 S.W.2d at 533-34; In the Interest of B.S.T., 977 S.W.2d at 485. More

specifically, the State need not show incarceration was a result of a course of conduct

endangering the child; it need only show incarceration was part of a course of conduct

endangering the child.     Thus, if the evidence, including imprisonment, proves a course of

conduct that has the effect of endangering the child, the requirement of subsection (E) is met.

Boyd, 727 S.W.2d at 533-34.

       The State acknowledges that the district court designated the children’s mother as the

sole managing conservator at the time of the divorce. However, Krist did nothing to assist the

children despite knowing the children’s mother had a history of drug abuse, and that his




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incarceration would leave the children basically homeless. Additionally, by his own admission,

Krist committed a bank robbery, assaulted the children’s mother, and violated a protective order.

Based on our review of the entire record, we conclude that a fact-finder could reasonably form a

firm belief or conviction that Krist engaged in conduct, and knowingly placed the children with

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

children. We, therefore, hold that the evidence is both legally and factually sufficient to support

the trial court’s findings under section 161.001(1)(E). See In re S.B., 207 S.W.3d 877, 885 (Tex.

App.—Fort Worth 2006, no pet.); In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth

2007, no pet.).

       2. Constructive Abandonment

       A court may base a termination of parental rights upon findings that the parent engaged

in constructive abandonment of the child. TEX. FAM. CODE ANN. § 161.001(1)(N) (Vernon

2009). Establishing constructive abandonment under section 161.001(1)(N) requires the State to

show that Krist constructively abandoned the children, the children had been in the temporary

managing conservatorship of the State for not less than six months, and (1) the State made

reasonable efforts to return the children to Krist; (2) Krist had not regularly visited or maintained

significant contact with the children; and (3) Krist demonstrated an inability to provide the

children with a safe environment. See TEX. FAM. CODE ANN. § 161.001(1)(N) (Vernon 2009); In

re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.).

       Here, Krist argues that he had significant contact with the children and, therefore, the

State failed to prove that Krist’s conduct met the requirements of section 161.001(1)(N)(ii). The

State concedes that Krist wrote a couple of letters to the children while he was incarcerated. Yet,

during this time, he has not actually seen his children and there is no record of the last contact he




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had with his children. Thus, according to the record, the only contact Krist maintained with his

children was sporadic letters, at best. Additionally, as previously discussed, Krist failed to

provide a safe environment for his children during his incarceration, and more importantly, the

record does not contain any evidence indicating when Krist might be released from the Texas

Department of Criminal Justice or any testimony as to who would care for the children in Krist’s

absence. We, therefore, hold that evidence is both legally and factually sufficient to support the

trial court’s findings under section 161.001(1)(N). See In re K.M.B., 91 S.W.3d at 25.

C. Best Interest of the Children

       Having determined that the trial court could have reasonably formed a firm belief or

conviction that Krist engaged in conduct in violation of at least one section of Family Code

section 106.001(1), we turn to the second prong for involuntary termination of the parent-child

relationship: whether “termination is in the best interest of the child.” See TEX. FAM. CODE ANN.

§ 161.001(2) (Vernon 2009). We analyze the evidence in support of the trial court’s finding that

termination of Krist’s parental rights was in the best interest of the children. See id.; In re J.L.,

163 S.W.3d at 84.

       To determine whether involuntary termination of the parent-child relationship is in a

child’s best interest we consider the Holley factors: (1) the child’s desires; (2) the child’s present

and future emotional and physical needs; (3) the present and future emotional and physical

danger to the child; (4) “the parental abilities of the individuals seeking custody”; (5) the

programs available to those seeking custody to help “promote the best interest of the child”; (6)

the plans those seeking custody have for the child; (7) “the stability of the home or proposed

placement”; (8) “the acts or omissions of the parent which may indicate that the existing parent-

child relationship is not a proper one”; and (9) any excuse for the parent’s acts or omissions. See




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Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (listing factors to consider when deciding

whether to involuntarily terminate a parent-child relationship). Although not an exhaustive list,

the Holley factors focus on the best interest of the child rather than the best interest of the parent.

See Patterson v. Brist, 236 S.W.3d 238, 240 (Tex. App.—Houston [1st Dist.] 2006, pet. dism’d)

(citing the Family Code requirement that the “primary consideration” is “the best interest of the

child”).

       The evidence at trial showed Krist was incarcerated and Krist provided no evidence of an

impending parole date. By his own admission, Krist participated in a bank robbery, committed

family violence, and violated a protective order. Additionally, the evidence supports that Krist

has done nothing to provide for the children. The caseworker testified the children expressed a

desire to be placed with the grandmother and the grandmother’s willingness to undergo home

visitations and requirements by the department. Both the caseworker and the counselor for the

children testified it was in the best interest of the children for Krist’s parental rights to be

terminated. Thus, the trial court could have reasonably formed a firm belief or conviction that

termination of Krist’s parental rights was in the best interest of the children. See Holley, 544

S.W.2d at 371-72.

                                            CONCLUSION

       “Only one predicate finding under [Family Code] section 161.001(1) is necessary to

support a judgment of termination when there is also a finding that termination is in the child’s

best interest.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Here, the evidence is legally and

factually sufficient to support the trial court’s finding of at least one of the statutory grounds for

termination and its finding that termination is in the children’s best interest. See TEX. FAM.

CODE ANN. § 161.001 (Vernon 2009) (listing grounds for termination). We, therefore, hold the




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trial court did not abuse its discretion in finding that Krist’s appellate issues are frivolous.

Accordingly, we affirm the order of the trial court.




                                                  Rebecca Simmons, Justice




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