                                            NO. 07-03-0084-CV

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                  PANEL E

                                        AUGUST 6, 2003
                                ______________________________

                                   IN RE D.S.A., E.E.A. AND O.J.A.,

                                                      Minors
                              _________________________________

                   FROM THE 242nd DISTRICT COURT OF HALE COUNTY;

                         NO. B31873-0111; HON. ED SELF, PRESIDING
                             _______________________________

                                                  OPINION

                               _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

        Robert Arredondo (Arredondo) appeals from an order terminating the parental

relationship between him and his three minor daughters, D.S.A., E.E.A., and O.J.A. Two

issues are presented, each of which involve the sufficiency of the evidence underlying the

judgment. We affirm that judgment.

             Issue One - Legal and Factual Sufficiency of Statutory Grounds

        In his first two issues, Arredondo challenges the legal and factual sufficiency of the

evidence to support the statutory grounds of termination under §161.001(1) of the Family

Code. We overrule the issues.


        1
        John T. B oyd, C hief Justice (R et.), Se venth Co urt of Appeals, sitting by assignm ent. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2003 ).
       Standard of Review

       The applicable standards of review are explained in In re J.F.C., 96 S.W.3d 256

(Tex. 2002) and In re C.H., 89 S.W.3d 17 (Tex. 2002). Through them, and when

addressing a factual sufficiency complaint, we are told to determine whether, after

assessing the entire record, the evidence permits a factfinder to reasonably form a firm

belief or conviction about the truth of the State’s allegations. In re J.F.C., 96 S.W.3d at

266; In re C.H., 89 S.W.3d at 25. Unlike the situation wherein the legal sufficiency of the

evidence is in question, our focus is not simply upon the undisputed evidence that supports

the verdict, but the disputed evidence as well. In re J.F.C., 96 S.W.3d at 266. Implicit in

the standard is our obligation to accord the factfinder the deference needed for it to fulfill

its role. In re C.H., 89 S.W.3d at 25-26. Furthermore, if the evidence is factually sufficient,

then, it is also legally sufficient. This is so because, logically, there cannot be “no

evidence” of record if the record contains enough evidence to enable the factfinder to

reasonably form a firm belief or conviction as to the existence of pivotal facts.

       Application of the Standard

       Multiple statutory grounds warranting termination of the parent/child relationship

were submitted to the jury. Thereafter, the jury returned a general verdict and found that

Arredondo’s parental rights should be terminated. Because the verdict was general, the

particular statutory ground allegedly warranting termination went unspecified. However,

we need not determine whether each ground enjoys the requisite amount of evidentiary

support. Instead, the decision may be affirmed if the evidence supports the existence of



                                              2
one ground, In re S.F., 32 S.W.3d 318, 320 (Tex. App.--San Antonio 2000, no pet.),

assuming the State also proved that termination was in the best interest of the child. See

TEX . FAM . CODE ANN . §161.001(1) & (2) (Vernon 2002) (stating that termination may be

ordered if the trial court finds, by clear and convincing evidence, the existence of a

statutory ground and that termination is in the best interest of the child).

        Next, among the grounds asserted by the State and presented to the jury is one that

permits termination if the parent has constructively abandoned the child who has been in

the permanent or temporary managing conservatorship of the Department of Protective

and Regulatory Services or an authorized agency for not less than six months and:

        (i) the department or authorized agency has made reasonable efforts to
        return the child to the parent;

        (ii) the parent has not regularly visited or maintained significant contact with
        the child; and

        (iii) the parent has demonstrated an inability to provide the child with a safe
        environment . . . .

TEX . FAM . CODE ANN . §161.001(1)(N) (Vernon 2002). To determine whether the jury could

legitimately conclude that termination was warranted under this provision, we turn to the

record before us.

        The children were three females aged four, two, and one on November 26, 2001;

the latter date was the day on which the Department of Protective and Regulatory Services

(CPS) took custody of them. At the time, they were under the care of their maternal great-

grandmother because both parents were incarcerated.2 The great-grandmother was



        2
          The mother voluntarily relinquished her parental rights, and the youngest child was born in the
pen itentiary.

                                                   3
observed to be confused and unable to state the children’s names, the name of their

mother, or the day of the week. She also did not know the name of the children’s doctor,

when they had last seen one, what time the children ate supper, what time they went to

bed, or when they took baths. Furthermore, the caretaker had to ask the two-year-old child

for answers to the questions posed by the case worker, and it was noted that the four-year-

old child did the cooking and cleaning while the two-year-old child took care of the one-year

-old child.

        Upon removal from the household, the children were initially separated and placed

in foster homes.           They were reunited several months later in the home of Brenda

McCullough (and her husband), a cousin of the children’s mother.                                 The latter

recommended that they be placed in the care of Brenda. At the time of their placement

with the McCulloughs, one of the children had ongoing urinary tract infections which were

later corrected with surgery. Another child had been born with part of her arm missing.

She is in the process of receiving a prosthesis, something that she did not receive before

placement with the McCulloughs.

        Next, case worker Cynthia Johnson (Johnson) initially spoke to Arredondo in prison

on December 6, 2001.3 At that time, he gave her the name and phone number of his

mother. Johnson left several messages at that number but the calls were never returned.

Subsequently, Arredondo was released to a halfway house on January 17, 2002.4 Within

several days of his release, Johnson spoke with him about a plan of service and visitation

        3
            Arre don do w as in th e Su bsta nce Abu se F elony Punishm ent F acility (SAF P).

        4
          Arredondo’s original conviction was for injury to a child. The child who was assaulted by Arredondo
was 14 years old but there was evidence he looked older. There was also evidence that Arredondo was
intoxicated at the tim e of th e as sau lt.

                                                          4
with his children. She twice arranged meetings with him to sign the plan of service but he

failed to attend, and she was unsuccessful in later attempts to contact him at the halfway

house. The next time Johnson spoke to Arredondo was on February 6 at a status hearing

for which appellant arrived two hours late.5 Johnson went over the service plan at that time

but Arredondo “was really agitated” about it because he had classes and group meetings

to attend with respect to his probation. Subsequently, Johnson arranged a meeting

between Arredondo, his probation officer, and herself to discuss the plan of service and

determine how Arredondo could fulfill his requirements. Arredondo told her he “was not

going to jeopardize going back to jail by attending . . . CPS classes.” He did not attend any

of the appointments or classes she arranged for him with respect to his plan of service, and

did not complete any of the items on the plan of service.6 He also did not exercise any

visitation rights or provide any support for his children while he was out of prison.7

          Arredondo’s probation was revoked on April 30 for drinking alcohol, failing to abide

by the terms of his curfew, failing to report his arrest for driving with a suspended license,

failing to pay as ordered, and failing to attend his after care group. He was sentenced to

seven years imprisonment. Johnson met with Arredondo in jail in May and discussed with

him voluntary termination of his parental rights. She testified that he was amenable to that

solution. In July, she wrote him about the progress of his children, and he responded the

          5
              Arredondo claimed he did not receive timely notice of the hearing and had to walk 22 miles to get
there .

          6
          Under the plan of service, A rrendondo was to pay child sup port, m aintain con sistent visitation with
the children, complete a psychological evalua tion, find app ropriate housing, obtain support through Alcoholics
Anonymous and Narcotics Anonymous, obtain a drug and alcohol assessment, attend parenting classes,
participate in FAME training, and attend individual/fam ily couns eling sess ions.

          7
           Arredondo claim s he was working while he wa s ou t of prison b ut his p roba tion officer w as u nab le to
verify his e m ploym ent beca use he w as a llegedly paid in ca sh.

                                                          5
following month. At that point, he had changed his mind and wrote several letters

indicating he wanted to be a presence in his children’s lives. The plan of service was

modified in October 2002 to account for his being unable to participate in some of the

classes, services, and visitation rights provided for in the first plan due to his incarceration.

Johnson had no proof that appellant had completed any of the requirements of the new

service plan but could not say he had not done so.

            Claudia Webb, a Court Appointed Special Advocate for the children, met with

Arredondo on April 15, 2002. At that time, Arredondo told her he thought the children

would be fine with the McCulloughs “forever.” She met with him again on May 31 when

she questioned him as to whether he understood why the arm of one of the children was

undeveloped so that studies could be done to obtain a prosthesis.8 He became very

agitated, jumped up, charged towards her, and walked out slamming the door.

        Arredondo testified that he had never formally married the children’s mother. They

had lived together intermittently at her great-grandmother’s house. He claimed to have

worked at various jobs and that he provided for his children. However, the only time the

children did not live at their great-grandmother’s house was for a few months after the first

child was born. The children had never lived with Arredondo alone, and the last time he

saw them was December 8, 2000.

        Arredondo has lived at different times with his mother, his brother, his grandmother,

and with the children’s great-grandmother. He did not have medical insurance for the

children but thought they were covered by Medicaid at one time. He claimed to have


        8
          The re was some evidence it may have been the result of drug abuse by the child’s mother during
preg nan cy.

                                                   6
bought his children clothes and to have contributed to the purchase of food in the great-

grandmother’s household when he was not in prison. However, he admitted the child’s

mother was on food stamps, and Brenda also testified that Arredondo lived with the great-

grandmother without payment of any kind. Arredondo testified he did not know that the

great-grandmother was losing her mental abilities.

       Arredondo was arrested on the charge of injury to a child in June 2000. He stayed

in jail for two or three months and was released on probation. On December 8, 2000, he

was arrested for violating his probation and was in jail until March 20, 2001, when he

transferred to a prison unit for SAFP. He was released again in January 2002 to the

halfway house and re-arrested in April for violating his probation. He stated he would be

eligible for parole in about six months. He testified he has been attending Alcoholics

Anonymous and Narcotics Anonymous in prison, but his parenting classes had not begun

yet. He denied ever stating that he would give up his parental rights.

       Arredondo’s mother testified that he told her that a relative was going to take the

children. However, she took no steps to find out where the children were. She also knew

after December 6, 2001, that CPS was involved but did not contact that agency.

        Thus, there was ample evidence from which the jury could form a firm conviction

or belief that Arredondo abandoned his offspring and failed to adequately support or care

for them prior to incarceration, and that after his release from SAFP, he failed to take any

steps to regain custody of them, visit them, or support them. Furthermore, he voluntarily

committed acts which caused his probation to be revoked, thereby resulting in his re-

incarceration. Although Arredondo professed a desire to be a part of his children’s lives

and may be currently attending substance abuse counseling, the jury could reasonably

                                             7
believe that appellant’s actions when he was not subject to a restricted regimen within the

confines of prison walls spoke more convincingly of his abandonment of his children. See

In re B.T., 954 S.W.2d 44, 49-50 (Tex. App.--San Antonio 1997, writ denied) (holding there

was enough evidence to find the defendant abandoned his child when he claimed to have

knowledge of CPS’s involvement, he admitted that for periods of two years and six months

he did not attempt any contact with his child, and from the date he canceled a home study

until the petition was filed, he did not attempt to contact the child or CPS or provide support

even when he was out of jail); Edwards v. Dept. of Protective & Regulatory Services, 946

S.W.2d 130, 137 (Tex. App.--El Paso 1997, no writ) (holding the evidence was legally and

factually sufficient to support a finding of abandonment when the defendant knew his child

was in the hospital but never visited or arranged for anyone to claim the child, never

voluntarily sought out his children despite the opportunity to do so, and the case worker

had to search for him).

       There was also ample evidence from which a jury could form a firm belief that

reasonable efforts had been made to return the children to Arredondo but he did not

regularly visit them or maintain contact with them. Evidence of similar force also exists

illustrating that he made only minimal efforts to meet the requirements of his service plan

after he had been re-incarcerated. See In re P. R., 994 S.W.2d 411, 416 (Tex. App.--Fort

Worth 1999, pet. dism’d w.o.j.) (holding the evidence sufficient to support a finding under

subsection (N) when the defendant routinely missed her counseling sessions, had at least

ten different jobs lasting only a short period of time, had lived at 13 to 17 different places,

attended only two anger management classes, attended no parenting classes, and only

visited her child sporadically which resulted in a lack of bonding between them); In re

                                              8
B.S.T., 977 S.W.2d 481, 486 (Tex. App.--Houston [14th Dist.] 1998, no pet.), overruled in

part on other grounds by In re C.H., 89 S.W.3d 17 (Tex. 2000) (holding the evidence was

sufficient to support termination under subsection (N) when, after release from prison, the

defendant was advised of visitation but only visited with his children twice and made no

further efforts to be involved with them, and a case worker testified that all reasonable

efforts were made to return the children to the parents).

       Additionally, evidence of record also exists illustrating that Arredondo was unable

or failed to provide a safe environment because of his vague and unstable employment

history, lack of a permanent residence when out of prison, failure to obtain proper medical

assistance for one child’s urinary tract infections and a prosthesis for another child,

recurrent alcohol abuse, and failure to abide by the conditions necessary to stay out of

prison. In re P.R., 994 S.W.2d at 416 (holding there was a showing of an inability to

provide a safe environment because of living at 13 to 17 different places in the last year,

an unstable employment history, failure to obtain immunizations for the child, and use of

methamphetamines and marijuana the day before a court-ordered psychologist

evaluation). In summary, and without viewing the evidence in a light favoring the verdict,

we conclude that the disputed and undisputed evidence both favoring and disfavoring the

verdict permitted a reasonable factfinder to form a firm conviction and belief that the

requirements of subsection (N) were met. In other words, the verdict is supported by

factually sufficient evidence, and because it is, it is also supported by legally sufficient

evidence.

       Arredondo argues that according to In re A.V., 57 S.W.3d 51 (Tex. App.--Waco

2001, pet. granted), rev’d on other grounds, No. 01-0706, 2003 LEXIS 111 (TEX . JULY 3,

                                             9
2000), §161.001(1)(N) is inapplicable when the parent is in prison. This is allegedly so

because when a parent is in prison, the State cannot show that it has made reasonable

effort to return the child to the parent (i.e. relinquish its custody to the parent), or that the

parent has not regularly visited or maintained sufficient contact with the child or the parent

has not demonstrated an inability to provide the child with a safe environment. While it

may be that both the court and the State so suggested in A.V., we disagree with the

proposition that §161.001(1)(N) “was never intended to apply to someone” in prison merely

because the parent is in prison. Id. at 62. Simply put, both the State and the court in A.V.

read §161.001(1)(N) too literally. Returning the child to the parent, per §161.001(1)(N)(i),

does not necessarily mean that the child has to be physically delivered to the incarcerated

individual. Not every person in prison has his or her child taken away by the State. Nor

is every person in prison unable to provide the child a good environment. Indeed, it is quite

conceivable that one in prison may still be able to do so by, at the very least, leaving the

ward in the capable hands of a relative, friend or spouse. See In re R.L.T., No. 07-02-

0332-CV, slip op. at 3-4, 2003 LEXIS 5289 (Tex. App.--Amarillo June 24, 2003) (wherein the

parent presented evidence that he could leave the child with a relative). If such could be

done, then it is conceivable that the State has the ability to relinquish its custody over the

youth and, thereby, effectively return the child to the incarcerated parent. At the very least,

we cannot say that incarceration renders that possibility impossible. And, it is simply a

“cop-out” (in the vernacular of the 70's) for anyone to conclude that prison ipso facto

prevents (or relieves) the parent from providing the child a safe environment. Again, the

incarcerated parent may be able to work through surrogates, such as relatives, spouses,

or friends, to fulfill that obligation. And, if he so arranges and those surrogates agree to

                                               10
the arrangement, it is hard to deny that the parent has taken steps to provide or effectively

provided a safe environment. To suggest otherwise would be to suggest that military

personnel cannot provide for their children because they may be assigned overseas to

combat duty. In that situation, family is often available to step in and help. The same can

be no less true when a parent is incarcerated. Nor can we say that incarceration renders

it impossible for the parent to maintain significant contact with the child. While the child

may not be able to live with the parent in a jail cell, it would seem that the parent could

nonetheless pursue a significant relationship with the offspring through, at the very least,

written correspondence.      In sum, incarceration does not render sub-paragraph (N)

inapplicable simply because of incarceration. And, to the extent that the State and court

in A.V. and Arredondo suggest otherwise, we believe them to be wrong.

                       Issue Two - Best Interest of the Children

       In his second issue, Arredondo contests the legal and factual sufficiency of the

evidence to support a finding that it was in the best interest of the children to end his

parental rights. We overrule the issue and conclude that the verdict enjoys the support of

both legally and factually sufficient evidence.

       To help determine whether that jury finding has sufficient evidentiary support, we

turn to the record and consider what have become known as the Holley factors. These

factors, which have been mentioned by the Texas Supreme Court as insightful on the

issue, consist of: 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 interests of the child; 6) the plans

                                             11
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 omission of the parent which may indicate that

the existing parent/child relationship is not a proper one; and 9) any excuse for the acts or

omission of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). However, we

must remember these are not the exclusive indicia which may be considered. In re C.H.,

89 S.W.3d at 27. For instance, evidence that proves one or more statutory grounds for

termination may also constitute evidence illustrating that termination is in the child’s best

interest.   Id. at 28.   Moreover, one need not prove that each Holley factor favors

termination. Id. All one need do is present enough evidence from which the factfinder can

reasonably form a firm conviction or belief that the child’s best interest warrants

termination.

       Here, we have evidence that Arredondo 1) has an unstable employment history and

residency status, 2) was convicted of injury to a child, 3) violated the terms of his probation

on multiple occasions which eventually resulted in his incarceration, 4) has a substance

abuse problem, 5) failed to visit or support his children at a time when he was free to do

so and allegedly employed, and 6) failed to meet the requirements of his family service

plan. There is also evidence that the McCulloughs 1) want to adopt the children, 2) have

provided a stable and loving environment, 3) have attended to the medical needs of the

children which needs went unattended prior to their placement with the McCulloughs, and

4) have attended counseling with the children, sought individual counseling for the children,

and obtained all the counseling that has been suggested to them. The children have also

expressed a fear they will be taken from the home of the McCulloughs. From these facts,

one can reasonably deduce that Arredondo lacked the ability, skills or desire to care for his

                                              12
offspring, that he failed to take advantage of programs to assist him in improving his

personal and parenting skills, that the children needed a stable home environment which

Arredondo could or would not provide, and that his acts or omissions indicated the lack of

a proper parent/child relationship. In short, and without looking at the evidence in a light

most favorable to the verdict, we conclude that both the disputed and undisputed evidence

favoring and disfavoring the verdict permits a reasonable factfinder to form a firm

conviction and belief that termination of the parent/child relationship was in the best

interests of the children.

       Having found the evidence legally and factually sufficient to warrant termination and

that it would be in the best interest of the children to terminate the parent/child relationship,

we affirm the judgment of the trial court.



                                                    Brian Quinn
                                                       Justice




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