

COURT OF APPEALS
EIGHTH DISTRICT OF
TEXAS
EL PASO, TEXAS
 
 



A.S.,
 
                            Appellant,
 
v.
 
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE
  SERVICES,
 
                           
  Appellee.


§
 
§
 
§
 
§
 
§
 
 § 
 


 
No. 08-12-00255-CV
 
Appeal from the
 
65th
  Judicial District Court 
 
of El
  Paso County, Texas 
 
(TC#2011CM838) 
 



 
O
P I N I O N
            A.S. (“A.S.” or Appellant”) appeals
the involuntary termination[1]
of his parental rights as to D.M., a minor child. [2]  In five issues, A.S. argues that the evidence
was legally and factually insufficient to support termination of parental
rights pursuant to:  (1) Texas Family
Code §§ 161.001(1)(D) and (E); (2) Texas Family Code § 161.001(1)(N); (3)
Texas Family Code § 161.001(1)(O); (4) Texas Family Code § 161.001(1)(Q); and
(5) on best interest grounds.  We affirm.
PROCEDURAL
BACKGROUND
            The original petition in
this case was filed on February 7, 2011. 
In February 2011, the trial court convened an adversary hearing under
Chapter 262 of the Texas Family Code,[3] entered
temporary orders for the care and custody of the minor children D.M., J.M. and
Ci.M., and named the Texas Department of Family and Protective Services (“the
Department”) as temporary managing conservator. 
Prior to the final hearing, the parties met and reached a mediated
settlement agreement as to C.M., which did not require termination of her
parental rights.  The settlement
agreement was later approved by the trial court.
            The Department sought
termination of A.S.’s parental rights at a trial held on August 1, 2012. [4]  Following the bench trial on August 3, 2012,
A.S. filed his notice of appeal.  On
August 8, 2012, the trial court found clear and convincing evidence to
support termination on each of the grounds alleged, and that termination was in
the best interests of the minor child D.M.  The order appointed the Department as the
children’s permanent managing conservator and named C.M. possessory conservator.
FACTUAL
BACKGROUND
            D.M. was born in 2010, and was one
year old at the time of the trial.  When
he was born, both D.M. and C.M. tested positive for marijuana and crack
cocaine.  Priscilla Fonseca (“Ms.
Fonseca”) was the caseworker assigned to the case by the Department.  She testified that the minor children,
including D.M., were placed in foster case because of C.M.’s negligent supervision
of J.M. and Ci.M., and for medical neglect of D.M.  C.M. had been residing at Aliviane Drug
Treatment Center (“Aliviane”) and left the children at Aliviane for longer than
twenty-four hours without returning.  Ms.
Fonseca testified that the children suffered the effects of C.M.’s substance
abuse for years while they were with her. 
At that time, A.S.’s location was unknown to the Department and A.S. was
not involved in the in-home services case. 
The Department located A.S. in March of 2011.  Ms. Fonseca testified that when she told A.S.
that D.M. was in the temporary managing conservatorship of the Department, he
“wanted a paternity test” because C.M. had relationships with multiple
men.  A.S. did not ask where D.M. was
placed or request visitation.
According
to A.S., he had a brief relationship with C.M. and was not advised that she was
pregnant with D.M. until seven months into the pregnancy.  A.S. learned of the pregnancy from C.M.’s
uncle, and that C.M. told her grandmother that D.M. was A.S.’s child.  The DNA test results established A.S. as the
biological father of D.M. in July of 2012.
            Ms. Fonseca stated that she
scheduled meetings with A.S. in May and June of 2011, but he did not appear and
failed to contact her.  A.S. did not
provide the Department with a schedule indicating when he would be in town.  The Department ultimately prepared three Family Service Plans (“Service Plan”),
pursuant to Section 262.103 of the Family Code, which required A.S., in part,
to present himself to the court and to remain in contact with the
Department.  The court ordered A.S. to
comply with the Service Plans.
            At the time D.M. was born, A.S. was
employed as a truck driver.  A.S. first
had contact with D.M. approximately two-and-a-half months after D.M. was born.  Since that time, A.S. never saw, visited, or
spoke to D.M.  When asked at trial why he
did not have contact with D.M., A.S. stated that he was “on the road most of
the time” and that A.S.’s family “didn’t want me to [sic] close to [C.M.’s] family”
because “they’re nothing but drug users and alcoholics.”
Since
D.M.’s birth A.S. has not provided financial support for D.M.  A.S. testified that while his family has purchased
items for D.M., they did not provide these items to him, fearing that C.M.
would sell them.  A.S. testified that he
did not provide any relative placements for D.M. when he was first contacted by
the Department because he was unsure of paternity.  He further testified that C.M. has asked him
for money but that he “wasn’t going to give her money.”  A.S. admitted that he knew C.M. had been
abusing alcohol and drugs, including marijuana and crack cocaine.
            Ms. Fonseca testified that A.S. was
incarcerated for “assaults on past girlfriends.”  One of the victims of the assaults was L.R.  Ms. Fonseca testified that there were several
protective orders against A.S. filed by L.R. and another woman.[5]  A.S. testified that he pled guilty to various
charges “because I was already tired with all the postponements.”
A.S.
stated that was given a seven year sentence on a 2009 assault, and another
seven year sentence to run concurrently for a 2010 assault.  A.S. admitted to:  (1) a theft of property conviction for theft
from a Target store for which he received a 180 day jail sentence; (2) a conviction
of the state jail felony of criminal mischief for which he was sentenced to one
year in TDCJ, to run concurrently with his other sentences; (3) a conviction of
the third degree felony of “Assault Causes Bodily Injury Family/Household” for
which he was sentenced to seven years in TDCJ, to run concurrently; (4) and a
conviction of the third degree felony of “Assault Family/Household Member with
Previous Conviction” against L.R. for which he was sentenced to seven years in
TDCJ, to run concurrently with other sentences. 
Another exhibit introduced at trial showed an agreed ten-year protective
order against A.S. by another woman, M.P. 
According to A.S., his earliest parole date is February of 2013, but he
has no certain release date.
Ms.
Fonseca noted that prior to his incarceration, A.S.:  (1) failed to visit D.M.; (2) failed to pay
any support for D.M.; (3) did not ask for placement of D.M.; (4) did not
maintain contact with the Department; and (5) did not offer any relative
placement options for D.M.  A.S. testified that he called his initial
caseworkers on various occasions.  While
he was incarcerated, a new Service Plan was prepared requiring A.S. to maintain
contact with the Department and to inquire about D.M.  A.S. wrote one letter to Ms. Fonseca in July
2012, but made no further written or verbal inquires about D.M.
A.S. conceded he has an anger problem, but
that he had not attended any anger management classes despite his assault
charges and protective orders, and that he did not sign up for available anger
management classes while in jail.
In March of 2012, while he was incarcerated, A.S.,
for the first time, provided a family placement option for D.M.[6]  A.S. proposed L.R., whom Ms. Fonseca
initially believed was A.S.’s girlfriend, but for whom A.S. had no contact
information.  Ms. Fonseca testified that
A.S. wanted to wait and see if paternity was established before L.R. was
considered for placement.  After
paternity was established in July 2012, A.S. again offered L.R. as a possible
placement, but claimed that L.R. was his common-law wife.[7]  A.S. wanted L.R. as a placement, even though
A.S. was no longer in a relationship with L.R., because she was financially
able to care for D.M.  However, A.S.
conceded that L.R. had never met D.M.  The
Department conducted a home visit to L.R.’s residence, but determined that D.M.
would not be placed with L.R. because:  (1) there was no relationship between D.M. and
L.R.; (2) there was “[a] lot of domestic violence in the home” between A.S. and
L.R., including the physical altercations which led to A.S.’s incarceration;
(3) L.R. could only care for one child; and (4) the Department did not want to
separate D.M. from his siblings.  A.S.
also proposed B.S., the mother of some of his other children, as a possible
placement, but wanted to talk to B.S. before he provided her contact information
to the Department.  A.S. admitted that
none of the people he proposed as placements for D.M. had ever met D.M.
Throughout the pendency of the case, D.M.
remained in foster care with his siblings. 
At the time of trial, a home study was being conducted on maternal
cousins for potential placement of the children.  Ms. Fonseca and the Court Appointed Special
Advocate (“CASA”) for the children, Norma Montes (“Ms. Montes”), both felt it was
in the best interests of the children for them to remain together.  Ms. Montes testified that D.M. was non-verbal
and unable to express his desires.  Ms.
Montes testified that A.S. was aware that D.M. could be his son and that A.S.
left D.M. with C.M., who A.S. knew was involved with drugs.  Ms. Montes further testified that A.S. should
have done more if he had concerns about D.M.  Ms. Fonseca testified that A.S. cannot provide
a safe environment for D.M. and that he has never established a relationship
with D.M.
A.S. also agreed that D.M. should not be
separated from his siblings.  While
conceding that he has never supported D.M., A.S. insisted that he has not done
anything, or failed to do anything, contrary to the best interests of D.M.[8]
DISCUSSION
In five issues,
A.S. argues that the evidence was legally and factually insufficient to support
termination of parental rights pursuant to:  (1) Texas Family Code §§ 161.001(1)(D) and
(E); (2) Texas Family Code § 161.001(1)(N); (3) Texas Family Code § 161.001(1)(O);
(4) Texas Family Code § 161.001(1)(Q); and (5) on best interest grounds.
Standard of Review
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 §
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 Supp. 2012).  “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 re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also In re 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).  We strictly scrutinize termination proceedings
and construe any statutes authorizing involuntary termination in favor of the
parent.  Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex. 1985).  “Only one predicate finding under 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); Tex.Fam.Code
Ann. § 161.001(1); In re D.M.,
58 S.W.3d 801, 813 (Tex.App.--Fort Worth 2001, no pet.); In re S.F., 32 S.W.3d 318, 320 (Tex.App.--San Antonio 2000, no
pet.).
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 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 re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). 
“If, 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, quoting
In re J.F.C., 96 S.W.3d at 266.
Statutory Grounds for Termination - Sections
161.001(1)(D) and (E)
A.S. first asserts
that the evidence is legally and factually insufficient to support termination
of his parental rights under Sections 161.001(1)(D) and (E) of the Family
Code.  A.S. contends that there is no
evidence that he knew or could have known that D.M. was being medically
neglected.  A.S. further argues that he
did not know the child was biologically his, and that “it cannot be said that
[A.S.] left the children in the care of persons likely to endanger the children
based on what was known to him at the time that he left the home.”
Sections 161.001(1)(D)
and (E) provide that the court may order termination of the parent-child
relationship if the court finds clear and convincing evidence that the parent
has:
(D) knowingly placed or knowingly
allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child;
(E) 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)(D) and (E).
            Both
(D) and (E) use the term “endanger.”  “To
endanger” means to expose a child to loss or injury or to jeopardize a child’s
emotional or physical health.  See In re M.C., 917 S.W.2d 268, 269
(Tex. 1996); Walker v. Tex. Dep’t of
Family and Protective Services, 312 S.W.3d 608, 616–17 (Tex.App.--Houston
[1st Dist.] 2009, pet. denied); Robinson
v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686
(Tex.App.--Houston [1st Dist.] 2002, no pet.), citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987).  A child is endangered when the
environment creates a potential for danger that the parent is aware of but
consciously disregards.  See In re M.R.J.M., 280 S.W.3d 494, 502
(Tex.App.--Fort Worth 2009, no pet.); In
re S.M.L., 171 S.W.3d 472, 477 (Tex.App.--Houston [14th Dist.] 2005, no
pet.).  The term means “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.  While endangerment often involves 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 child’s
emotional well-being.  Id.; In
re U.P., 105 S.W.3d 222, 233 (Tex.App.--Houston [14th Dist.] 2003, pet.
denied); Robinson, 89 S.W.3d at 686.  It is not necessary that the conduct be
directed at the child or that the child suffers injury, or even that the
conduct constitutes a concrete threat of injury to the child.  See In
re M.J.M.L., 31 S.W.3d 347, 350 (Tex.App.--San Antonio 2000, pet. denied).  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.
Section (D) requires
proof of endangerment which means to expose to loss or injury, or to jeopardize
a child's emotional or physical health.  Castaneda v. Tex. Dep’t. of Protective and
Regulatory Servs., 148 S.W.3d 509, 521-22 (Tex.App.--El Paso 2004, pet.
denied), citing Boyd, 727 S.W.2d at
533.  While endangerment 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 suffer actual injury.  Castaneda,
148 S.W.3d at 522; Doyle v. Tex. Dep’t. of Protective and Regulatory
Servs., 16 S.W.3d 390, 394 (Tex.App.--El Paso 2000, pet. denied).  Subsection (D) requires a showing that the
environment in which the child is placed endangered the child’s physical or
emotional health.  Castaneda, 148 S.W.3d at 522.  Conduct of a parent or another person in the
home can create an environment that endangers the physical and emotional
well-being of a child as required for termination under Subsection D.  Id.;
see In re W.S., 899 S.W.2d 772, 776
(Tex.App.--Fort Worth 1995, no writ)(“environment” refers to the acceptability
of living conditions, as well as a parent’s conduct in the home).  Inappropriate, abusive, or unlawful conduct by
persons who live in the child’s home or with whom the child is compelled to
associate on a regular basis in his home is a part of the “conditions or
surroundings” of the child’s home under subsection (D).  In re
M.R.J.M., 280 S.W.3d at 502.  The
fact finder may infer from past conduct endangering the child’s well-being that
similar conduct will recur if the child is returned to the parent.  Id.
The relevant
inquiry for a subsection (E) termination is whether evidence exists that the
endangerment was the direct result of the parent’s conduct, including acts,
omissions, and failures to act.  In re J.T.G., 121 S.W.3d 117, 125
(Tex.App.--Fort Worth 2003, no pet.).  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.  Endangerment of a 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 re R.W., 129 S.W.3d 732, 738-39
(Tex.App.--Fort Worth 2004, pet. denied). 
The parent-child relationship, and efforts to improve or enhance
parenting skills, are relevant in determining whether a parent’s conduct
results in endangerment under subsection (E). 
See In re D.T., 34 S.W.3d 625,
640 (Tex.App.--Fort Worth 2000, pet. denied).
Because the focus
under (D) or (E) is the conduct of the parent, evidence of criminal conduct,
convictions, or imprisonment is relevant to a review of whether a parent
engaged in a course of conduct that endangered the well-being of the child.  In re
J.T.G., 121 S.W.3d at 133.
However, there are
some distinctions in the application of subsections (D) and (E).  Knowledge of paternity is a prerequisite to a
showing of knowing placement of a child in an endangering environment under Section
161.001(1)(D), however it is not a prerequisite to a showing of a parental
course of conduct which endangers a child under Section 161.001(1)(E).  See In
the Interest of Stevenson, 27 S.W.3d 195, 201-03 (Tex.App.--San Antonio
2000, pet. denied).  Furthermore,
termination under Section 161.001(1)(D) is permitted “because of a single act
or omission.”  See In re R.D., 955 S.W.2d 364, 367 (Tex.App.--San Antonio 1997,
pet. denied).  Conversely, termination
under (E) requires a conscious course of conduct by the parent.  See In
re K.M.M., 993 S.W.2d 225, 228 (Tex.App.--Eastland 1999, no pet.); In re J.W., 152 S.W.3d 200, 205
(Tex.App.--Dallas 2004, pet. denied).
Reviewing the
evidence presented in the case, A.S., by his own admission, knew that C.M. was
seven months pregnant with D.M. and that he was purportedly the father.  Yet A.S. only met D.M. when D.M. was two
months old, and has never seen D.M. since. 
A.S.’s excuse was that he was on the road most of the time.  The evidence also established that A.S. knew
C.M. was abusing alcohol, using marijuana, and “smok[ing] crack cocaine.”  The record indicates that D.M. tested
positive for marijuana and cocaine at his birth.  A.S. conceded that he did not seek custody or
conservatorship over D.M.
A.S. did not
challenge the evidence presented that C.M. medically neglected D.M., which led to
D.M.’s placement in foster care.  A.S.
did not challenge Ms. Fonseca’s testimony that the children suffered the
effects of C.M.’s substance abuse, which endangered their emotional and
physical well-being for years while they were with her.  A.S. did not challenge the evidence of his
criminal convictions, including two family violence assaults against household
members, resulting in his incarceration. 
A.S. did not challenge Ms. Fonseca’s testimony that, apart from writing
a single letter to her inquiring about D.M., A.S. made no additional inquiries
about D.M.  No evidence was presented
that A.S. made any attempt to improve his parenting skills.  While A.S. testified that he had anger
problems and that anger management courses were available, he did not avail
himself of these programs.  A.S. provided no financial or other support for
D.M.
Considering 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 at 573, we conclude that a reasonable fact finder could have formed a firm
belief or conviction that A.S. endangered the emotional and physical well-being
of D.M. through A.S.’s course of conduct, including his failures to act.  We find the evidence presented legally
sufficient to support termination under Sections 161.001(1)(D) & (E).  In reviewing the entire record and evidence presented,
and giving due deference to the evidence that the fact finder could reasonable
have found to be clear and convincing, See
In re J.F.C., 96 S.W.3d at 266, we conclude that the evidence is factually
sufficient to support termination under Sections 161.001(1)(D) & (E).  Any disputed evidence presented was not such
that a reasonable fact finder could not have resolved that disputed evidence in
favor of its finding.  In re J.F.C., 96 S.W.3d at 266.  A.S.’s first issue is overruled.
Because we
conclude that the evidence is legally and factually sufficient to support the
trial court’s finding under Sections 161.001(1)(D) & (E) as challenged in
Issue One, we need not address the challenges raised by A.S. in Issues Two,
Three and Four.  See Tex.Fam.Code Ann. §
161.001(1); In re A.V., 113 S.W.3d at
362.
Best interests of the child
            A.S.’s
fifth issue is that the evidence was legally and factually insufficient to
support the termination of his parental rights under the best interest of the
child analysis.
            The
Texas Supreme Court has recognized a number of factors used for best-interest
determinations.  See Holley v. Adams, 544
S.W.2d 367, 372 (Tex. 1976).  These
factors include:  (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 which 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.  Holley, 544 S.W.2d at 372 (footnotes
omitted); M.C., 300 S.W.3d at
311.  The Holley factors are not exhaustive. 
M.C. v. Texas Dept. of Fam. &
Prot. Svc., 300 S.W.3d 305, 311 (Tex.App.--El Paso 2009, pet. denied).  No single factor is controlling, and the fact
finder is not required to consider all of them. 
M.C., 300 S.W.3d at 311.  Undisputed evidence of a single factor may be
sufficient to support a finding that termination is in the best interest of a
child.  Id.
Desires of the child.  D.M. is very young, having been one year
old at the time of the trial, and is non-verbal.  The record is silent regarding D.M’s desires.
 However, the fact that D.M. has spent
virtually no time with A.S. may be considered as part of this factor.  See In
re U.P., 105 S.W.3d at 230.  A.S. met
D.M. on exactly one occasion following D.M.’s birth, and has never visited D.M.
during the case.  Certainly, the lack of
contact between A.S. and D.M. supports a conclusion that there is no emotional
bond between them.  See In re C.N.S., 105 S.W.3d 104, 106 (Tex.App.--Waco 2003, no
pet.).  This factor supports termination.
The
emotional and physical needs of the child now and in the future, and the
emotional and physical danger to the child now and in the future.  A.S. contends that there is no evidence
of past or future danger to D.M. by A.S., or any allegations involving A.S.’s
six other children.  However, evidence of
past misconduct or neglect is permissible as an inference that a parent’s
future conduct may be measured by their past conduct.  See May
v. May, 829 S.W.2d 373, 377 (Tex.App.--Corpus Christi 1992, writ
denied).  A parent’s inability or
unwillingness to provide adequate care for his children, lack of parenting
skills, and poor judgment may be considered when looking at the children’s best
interest.  See In re C.A.J., 122 S.W.3d 888, 893 (Tex.App.--Fort Worth 2003,
no pet.).  Without stability, income, or
home, a parent is unable to provide for a child’s emotional and physical
needs.  Id. at 894.
Further, while there is a strong presumption
that the best interest of the child will be served by preserving the
parent-child relationship; see In re R.R.,
209 S.W.3d 112, 116 (Tex. 2006)(per curiam), the focus is on the best interest
of the child - not the best interest of the parent.  See
Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81,
86 (Tex.App.--Dallas 1995, no writ).  A
parent’s current and future incarceration at the time of trial is relevant to
that parent’s ability to meet the child’s present and future physical and
emotional needs.  See In re M.D.S., 1
S.W.3d 190, 200 (Tex.App.--Amarillo 1999, no pet.).  This is not dispositive, but only a factor
for best interest.  In the interest of C.T.E., 95 S.W.3d 462, 466 (Tex.App.--Houston [1st
Dist.] 2002, pet. denied).
There is nothing
in the record indicating that D.M. has any special physical, emotional or
psychological needs.  The unchallenged
evidence in the case established that:  (1) A.S. has not seen, visited, or spoken to
D.M. since the single time he met D.M.; (2) A.S. has not provided financial
support for D.M. since D.M. was born; (3) A.S. is presently incarcerated,
having been sentenced to seven years of confinement for multiple offenses,
including two assaults, which involved women with whom A.S. was involved; (4)
A.S. testified he had anger problems and that while anger management courses
were available, he did not avail himself of these programs; (5) the only placement A.S. offered for D.M.
was in the home of L.R., whom A.S. was convicted of assaulting, and who had no
relationship with D.M.
The record supports an inference that A.S.’s
course of misconduct before and throughout this case would continue into the
future.  See generally, May, 829
S.W.2d at 373.  Further, A.S.’s continued
lack of contact with D.M., lack of support of D.M., and A.S.’s sentence and
incarceration established that A.S. is unable to meet D.M.’s emotional or
physical needs, presently or in the future. 
In re C.A.J. 122 S.W.3d
at 893; In re M.D.S., 1 S.W.3d at 200;
In re S.M.L., 171 S.W.3d at 479 (explaining
that because when a parent is incarcerated, he is absent from a child’s daily life
and is unable to provide support, a parent’s pattern of intentional criminal
activity that exposes the parent to incarceration is conduct that can
negatively impact a child’s living environment and emotional well-being).  The trial court could have also concluded
that A.S. could not offer stability or permanence to D.M.  In re
T.D.C., 91 S.W.3d 865, 873 (Tex.App.--Fort Worth 2002, pet. denied).  These factors favor termination.
The parental abilities of the individuals
seeking custody.  The programs available to assist these
individuals to promote the best interest of the child.  A.S. does not address these factors in his
brief.  The record does indicate that
while A.S. recognizes that he has an anger problem, he has failed to take
advantage of available programs. 
Certainly A.S.’s substantial lack of involvement in D.M.’s life, as well
as A.S.’s lack of action in seeking custody or conservatorship of D.M. though
A.S. knew D.M. resided in the home of a known drug abuser, raised significant doubts
as to A.S.’s parental abilities.  Such
information was certainly relevant to and supportive of the termination
determination.
The plans for the child by these individuals
or by the agency seeking custody.  The stability of the home or proposed
placement.  A.S. generally argues
these factors together in his brief. 
A.S. contends that the Department does not have a concrete permanency
plan for D.M. or his siblings, and that terminating A.S.’s parental rights
would not further the Department’s stated goals of working with C.M. in helping
her gain managing conservatorship rights and potentially placing the children
with relatives.
The evidence in
the case was that A.S. proposed that D.M. live with L.R. who:  (1) had no relationship with D.M.; (2) had a
violent relationship with A.S.; (3) could only care for one child; and (4) whom
A.S. planned on reuniting with once he was released from prison.  A.S. claimed that he would support D.M.
following his release from prison but had not done so previously.  He also claimed that he would “be there” for
D.M., despite only having met him once.  None
of the people A.S. proposed as placements for D.M. had ever met D.M.  The Department and CASA both testified that
D.M. should remain with his other siblings, with whom he was strongly bonded
to.  A.S. agreed that D.M. remaining with
his siblings was in D.M.’s best interest. 
Both the Department and A.S. agree that separating D.M. from his
siblings is not in the best interests of the child.  These factors are, at best, neutral.
The acts or omissions of the parent which
may indicate that the existing parent-child relationship is not a proper one.  Any
excuse for the acts or omissions of the parent.  A.S. does not address either of these factors
in his arguments. When asked at trial why he did not have contact with D.M.,
A.S. stated that he was “on the road most of the time” and that A.S.’s family
“didn’t want me to [sic] close to her family” because “they’re nothing but drug
users and alcoholics.”  Since D.M.’s
birth A.S. has not provided financial support for D.M.  A.S. testified that while his family bought
items for D.M., they did not provide these items to D.M., fearing that C.M.
would sell them.  A.S. did not testify
that he, himself, had ever purchased anything for D.M.  A.S. testified that he did not provide any
relative placements for D.M. when he was first contacted by the Department
because he was unsure of paternity.  A.S.
has admitted to anger issues, but did not take advantage of any programs
available to him while incarcerated, and blames transfers in the prison system
for his failure.  A.S. is currently
incarcerated for multiple crimes, including two assaults, one of which was
committed against L.R., whom A.S. claims as his common-law wife, although he is
subject to protective orders filed by L.R. and other women.  Since D.M. was born, A.S. has seen him only
once and has not made inquiries about him.
The trial court,
as fact finder, was entitled to disbelieve some or all of A.S.’s excuses based
on the evidence presented, and reasonably could have formed a firm belief or
conviction that A.S had inadequate excuses for his actions and inactions.  The trial court could also reasonably have
formed a firm belief and conviction that A.S.’s acts and omissions do not
support an appropriate parent-child relationship.  These factors favor termination.
Viewing the
evidence in the light most favorable to the judgment for a legal sufficiency
analysis and all of the evidence equally for a factual sufficiency analysis, we
conclude that a reasonable fact finder could have formed a firm belief or
conviction that the best interest of the child would be served by termination
of A.S.’s parental rights.  We find the
evidence legally and factually sufficient to support the trial court’s finding.  Appellant’s fifth issue is overruled.
CONCLUSION
            Having found
legally and factually sufficient evidence to support termination under Sections
161.001(1)(D) & (E) and that termination is in for the best interest of the
child, the judgment of the trial court is affirmed.
 
 
December
21, 2012
                                                                        CHRISTOPHER
ANTCLIFF, Justice
 
Before
McClure, C.J., Rivera, and Antcliff, JJ.




[1]
Appeals from a judgment terminating parental rights are accelerated.  See
Tex.R.App.P. 28.4.  The Texas Supreme Court has determined that an
appellate court should dispose of these appeals within 180 days after the
notice of the appeal is filed.  Tex.R.Jud’l Admin 6.2(a).  The Court appreciates the efforts of counsel
for Appellant and the Texas Department of Family and Protective Services in
filing their respective briefs in a timely manner in this super-accelerated
format.
 


[2]
Pursuant to Tex.R.App. P. 9.8, we
shall refer to the subject child as “D.M.,” the subject child’s father as “A.S.,”
the subject child’s mother as “C.M.,” D.M.’s siblings “J.M.” and “Ci.M.,” and A.S.’s
common-law-wife as “L.R.”


[3]
Referred to herein as “the Family Code.”
 


[4]
The court also terminated the parental rights of the respective fathers of
Ci.M. and J.M.  Only A.S. appealed.


[5]
A.S. disputed Ms. Fonseca’s testimony.


[6]
A.S. claimed that he gave placement
options to the Department prior to his incarceration, however the trial record
reflects that he did not do so until after he was incarcerated.
 


[7]
A.S. testified that L.R. had been his common-law wife for three and a half to
four years, but that he had been living with M.P. following an argument with
L.R. so that A.S. “wouldn’t pick up another case.”


[8]
A.S. admitted that he had seven children with three different women.  He testified that he pays child support, but
not while incarcerated.


