                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00029-CV


IN THE INTEREST OF A.J.T.
AND R.A.C., CHILDREN




                                      ------------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                      ------------

                       MEMORANDUM OPINION1

                                      ------------

                                   I. Introduction

      In one issue, Appellant A.T. appeals the termination of his parental rights

to A.J.T. We affirm.

                                II. Background

      A.T. pleaded guilty to and was convicted of the aggravated sexual assault

of a child—his stepson R.E.T.—and was sentenced to fifteen years’ incarceration

      1
       See Tex. R. App. P. 47.4.
in September 2011. In January 2012, A.T.’s parental rights to A.J.T. and R.A.C.

were terminated.2 See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (Q), (2) (West

2008 & Supp. 2012). A.T. does not appeal the termination of his parental rights

to R.A.C.3 Instead, A.T. challenges only the trial court’s best interest finding with

regard to A.J.T. and not the grounds for termination under family code section

161.001(1), conceding that “there was factually sufficient evidence” under section

161.001(1)(D) and (E) to support termination of his parental rights.4

                          III. Best Interest of the Child

      A.T. complains that the evidence was legally and factually insufficient to

support the best interest finding “when the Government failed to explore

placement with the paternal grandmother, knowing that it was an option” because

the Department of Family and Protective Services (DFPS) had been supplied




      2
       At the termination trial, the trial court admitted A.T.’s 2011 conviction as
well as his August 27, 1987 probation revocation for possession of a controlled
substance (cocaine), his January 23, 1989 conviction for sexual assault, and his
April 11, 2006 conviction for failure to comply with sex offender registration
requirements.
      3
       While A.T. is the presumed father of both A.J.T. and R.A.C., R.C. is
R.A.C.’s alleged biological father.
      4
        During the pendency of this case, Mother and R.C. repeatedly tested
positive for methamphetamine and failed to complete their service plans; they
both have several drug convictions. R.E.T. told a Child Protective Services
(CPS) investigator that Mother was not home when A.T. sexually abused him
because she was in jail. R.E.T.’s father C.T. died in 2006 as a result of a drug
overdose. R.C. and Mother have not appealed the termination of their parental
rights.

                                         2
with the appropriate information and that it is in A.J.T.’s best interest to pursue

this placement option.

A. Standard of Review

      Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001; see also id. § 161.206(a) (West

2008). Evidence is clear and convincing if it “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.” Id. § 101.007 (West 2008).

      In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the grounds for termination were

proven.    In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).       We review all the

evidence in the light most favorable to the finding and judgment. Id. We resolve

any disputed facts in favor of the finding if a reasonable factfinder could have

done so. Id. We disregard all evidence that a reasonable factfinder could have

disbelieved. Id. We consider undisputed evidence even if it is contrary to the

finding.   Id.   That is, we consider evidence favorable to termination if a

reasonable factfinder could, and we disregard contrary evidence unless a

reasonable factfinder could not. Id. We cannot weigh witness credibility issues

that depend on the appearance and demeanor of the witnesses, for that is the

factfinder’s province. Id. at 573, 574. And even when credibility issues appear in



                                         3
the appellate record, we defer to the factfinder’s determinations as long as they

are not unreasonable. Id. at 573.

      In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder’s findings and do not supplant the judgment with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we must determine whether, on

the entire record, a factfinder could reasonably form a firm conviction or belief

that termination of the parent-child relationship would be in the best interest of

the child. See Tex. Fam. Code Ann. § 161.001(2); In re C.H., 89 S.W.3d 17, 28

(Tex. 2002).    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 in the truth of its finding, then the evidence is factually insufficient.

H.R.M., 209 S.W.3d at 108.

      There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and

permanent placement of the child in a safe environment is also presumed to be

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008).

Nonexclusive factors that the trier of fact in a termination case may use in

determining the best interest of the child include:

      (A)    the desires of the child;

      (B)    the emotional and physical needs of the child now and in the
             future;


                                          4
      (C)      the emotional and physical danger to the child now and in the
               future;

      (D)      the parental abilities of the individuals seeking custody;

      (E)      the programs available to assist these individuals to promote
               the best interest of the child;

      (F)      the plans for the child by these individuals or by the agency
               seeking custody;

      (G)      the stability of the home or proposed placement;

      (H)      the acts or omissions of the parent which may indicate that the
               existing parent-child relationship is not a proper one; and

      (I)      any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).

      These factors are not exhaustive; some listed factors may be inapplicable

to some cases; other factors not on the list may also be considered when

appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just

one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child.       Id.   On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

B. Evidence

      Laura Siqueiros, the family-based safety services (FBSS) worker testified

that she was assigned to the case in January 2011, prior to CPS’s decision to

remove the children. Siqueiros said that she spoke with A.T.’s mother but did not

recall when and that she gathered his mother’s contact information and passed it


                                            5
on when the case was transferred to a CPS caseworker at the end of February

2011.

        Melanie Scott, the current CPS caseworker, testified that she entered the

case in May 2011. She stated that thirteen-year-old R.E.T. had been placed at a

residential treatment center in Houston and had only recently started addressing

some of his sexual abuse issues.          Eleven-year-old A.J.T. and three-year-old

R.A.C. were together in the same foster home.

        Scott testified as follows with regard to her interaction with A.T.:

               Q. During this case, has [A.T.] personally given you the name
        of a person that you have been [able] to run National Criminal
        Information checks on, CPS history on, that you have been [able] to
        get an approved home study on, and that you have been [able] to
        get this court to approve placement of his children with?

              A. No.

              Q. In fact, did you have a telephone conversation with [A.T.]
        in mid-August, 2011?

              A. Yes, I did. He telephoned me and I talked with him. I told
        him I would be sending his family service plan to him, asked him if
        they had any questions. He did not, basically, and that was the
        conversation was I told him I would be sending him a family service
        plan. I did obtain an address, and I did send it to him certified mail.

              Q. And did he say anything in that conversation that day, hey,
        have you home-studied this person or this is someone that my boys
        could go live with?

              A. No, he did not.

                Q. All right. And just to be clear, are [A.J.T.] and [R.A.C.]
        living in a foster home today?

              A. Yes.


                                            6
      Q. Okay. How many times, Ms. Scott, in the last seven
months has [A.T.] mailed you letters or cards asking you to tell his
boys that he loves them, he cares for them, he’s concerned for their
well-being, things like that?

      A. No times at all.

      Q. All right. Has [A.T.] been [able] to show that he can
protect [A.J.T.] and [R.A.C.] from emotional and physical danger
both now and in the future?

      A. No, he has not, and him being incarcerated and being
sentenced for 15 years shows that he’s not [able] to protect them
emotionally or physically.

      Q. All right. Well, what about his sexual abuse of [R.E.T.], the
oldest child in this sibling group? Does that play into your
assessment of whether or not [A.T.] can protect his sons from
emotional and physical danger now and in the future?

      A. Yes, it does. He’s a registered sex offender and he has
more than one conviction of sexual abuse.

      Q. Has [A.T.] been [able] to show that he can provide [A.J.T.]
and [R.A.C.] with safe and stable housing?

      A. No, he’s not.

      Q. Why do you say no to that?

       A. Well, because he’s incarcerated. He’s not once written or
notified me of any concerns or asked me how the children are doing,
even after I’ve sent him the service plan and sent my information, my
address and telephone number.

     Q. Has he given you the names of any family members that
you [have] been [able] to successfully home-study and make
temporary possessory conservators of his children?

      A. No, he has not.

      Q. Has [A.T.] shown that he can provide [A.J.T.] and [R.A.C.]
with minimally-adequate health and nutritional care?

      A. No, he’s not.
                                  7
             Q. Has [A.T.] shown that he can appropriately discipline
      [A.J.T.] and [R.A.C.]?

            A. No.

            Q. Has [A.T.] shown that he can supervise [A.J.T.] and
      [R.A.C.] consistently with the boys’ safety needs?

            A. No.

             Q. Do you believe that it’s in [A.J.T.’s] and [R.A.C.’s] best
      interest that this court today terminate [A.T.’s] parental rights to each
      of these boys?

            A. Yes, I do.

              Q. And would you just summarize for us why you believe
      that’s in [A.J.T.’s] and [R.A.C.’s] best interest?

             A. Because of his sexual convictions, and he’s was [sic] going
      to be incarcerated for the next 15 years.

             Q. What about his sexual abuse of [R.E.T.]? Does it play a
      role in it?

            A. Yes, it does.

      During cross-examination, Scott testified that she did not contact A.T.’s

mother to see if she would be an appropriate placement for the children because

when she received the case, there was a home study already being performed

on another relative so that the children could remain together. She did not follow

up with A.T.’s mother because when she spoke with A.T. on the phone, “he

never mentioned the children being placed with his mother.” Scott also said that

A.T. did not give DFPS his mother’s name or her contact information.

      Scott said that DFPS’s plan for A.J.T. and R.A.C. was to place them with

R.C.’s sister Amy (a pseudonym) and to give Amy possessory managing

                                         8
conservatorship of the children.      Scott said that it would be in A.J.T.’s and

R.A.C.’s best interest to be placed with Amy because she had seen Amy interact

with the children and A.J.T. had told her that he wanted to live with Amy. Scott

said that Amy is a professional nanny, is very mature and stable, and is bonded

with the children; Amy has told Scott that she would be willing to adopt the two

boys.

        The trial court admitted CPS’s home study of Amy’s home. 5 The home

study reflects that Amy has worked as a nanny for twenty-five years, that Amy

wanted the children placed with her because they are her nephews and she

loves them and wants what is best for them, that Amy has no criminal history or

CPS history, and that Amy has a job, a home, and a support network to help her

care for the children. Mother agreed that if she could not have custody of A.J.T.

and R.A.C., Amy was the best person for the two boys and that the two boys love

Amy.

        A.T. was present at trial but chose not to testify, and he did not put on any

evidence.

        The children’s ad litem attorney recommended Amy to the trial court as “an

excellent placement for the two little ones who seem to be doing pretty well since

they’ve gotten out of the situation they were in.” A.T.’s sole closing argument


        5
       CPS was also conducting a home study on one of R.E.T.’s paternal aunts
in San Antonio for R.E.T.’s placement upon his successful discharge from the
residential treatment center.

                                          9
was to request that if the children’s placement broke down “that his mother be

considered actively for placement of his children.”

C. Analysis

      A.T. argues that A.J.T. was denied better permanence “by the

Government’s failure to explore the option of placing” A.J.T. with A.T.’s mother.

      Until DFPS identifies a relative or other designated individual qualified to

be a substitute caregiver, the department must continue to explore substitute

caregiver options, and DFPS may place a child with a relative or other

designated individual identified by a parent or other person having legal custody

of a child if it determines that the placement is in the child’s best interest. 6 See

Tex. Fam. Code Ann. §§ 261.307(a) (West 2008), 262.114 (West 2008 & Supp.

2012). Further, “[t]he determination of where the child will be placed is a factor in

evaluating the child’s best interest, but it is not a bar to termination that

placement will be with non-relatives.” In re K.W., No. 02-09-00041-CV, 2010 WL

144394, at *10 (Tex. App.—Fort Worth Jan. 14, 2010, no pet.) (mem. op.); see

also In re D.C., No. 01-11-00387-CV, 2012 WL 682289, at *13 (Tex. App.—

Houston [1st Dist.] Mar. 1. 2012, pet. denied) (mem. op.) (stating same).


      6
       We have previously noted that family code section 262.114 does not
prescribe a sanction or consequence for DFPS’s failure to complete a home
study. In re J.F., No. 02-07-00007-CV, 2007 WL 2963690, at *6, 8 (Tex. App.—
Fort Worth Oct. 11, 2007, pet. denied) (mem. op.) (concluding that it is the
children’s safety that is of paramount importance with regard to a DFPS
placement), disp. on merits, No. 02-08-00183-CV, 2009 WL 806889, at *9 (Tex.
App.—Fort Worth Mar. 26, 2009, pet. denied) (mem. op.).

                                         10
      Based on the testimony at trial, the trial court could have concluded that

A.T. did not suggest to his CPS caseworker that his mother was a potential

placement for A.J.T. Cf. Tex. Fam. Code Ann. §§ 261.307(a), 262.114. Further,

there was no evidence at trial that A.T.’s mother wanted A.J.T. or would have

been an appropriate placement for him or that A.J.T. would want to go to her. Cf.

D.C., 2012 WL 682289, at *13 (noting that there was evidence that paternal aunt

did not want the children and no evidence that the children knew her or wanted to

live with her).   Additionally, placement with Amy, a professional nanny and

A.J.T.’s step-aunt, allowed A.J.T. to remain with his half brother R.A.C., and the

record reflects that Amy was a stable, permanent placement for both boys and

that A.J.T.’s preference was to be with her. See Holley, 544 S.W.2d at 371–72;

cf. Horvatich v. Tex. Dep’t of Protective & Regulatory Servs., 78 S.W.3d 594,

599–600, 603–04 (Tex. App.—Austin 2002, no pet.) (concluding, when DPRS

failed to provide any testimony regarding its plan for the children, including

whether DPRS would attempt to place the siblings together, and the children’s

maternal grandmother testified that she told DPRS that she wanted custody of

the children and had worked services to be considered a placement, there was

insufficient evidence to show that termination of parental rights was better for the

children than placement with a viable relative).

      Viewing the record in the light most favorable to the finding and the

judgment, we conclude that the trial court could have reasonably formed a firm

belief or conviction that termination of A.T.’s parental rights was in A.J.T.’s best

                                        11
interest despite A.T.’s mother not being considered for placement. See J.P.B.,

180 S.W.3d at 573.      And based on the entire record, we reach that same

conclusion. See H.R.M., 209 S.W.3d at 108. Therefore, the evidence is legally

and factually sufficient to support the trial court’s best interest finding, and we

overrule A.T.’s sole issue.

                                 IV. Conclusion

      Having overruled A.T.’s sole issue, we affirm the trial court’s judgment.


                                                   PER CURIAM


PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: August 16, 2012




                                        12
