

                                                           COURT OF
APPEALS
                                                   EIGHTH DISTRICT OF
TEXAS
                                                              EL
PASO, TEXAS
 



 
 
 
 
 
IN THE INTEREST OF S.M., A CHILD
 


 
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                  No. 08-11-00288-CV
 
                         Appeal from
 
65th District Court
 
of El Paso County,
  Texas
 
(TC # 2010CM724)




 
 


 
 


 
 



                                                                  O
P I N I O N
 
            In this accelerated appeal, Appellant
(Raul) challenges an order terminating his parental rights to S.M. and
appointing the Texas Department of Family and Protective Services as S.M.’s
sole managing conservator.  He brings
five issues for review, four of which relate to the sufficiency of the evidence
supporting termination.  The remaining
issue attacks the denial of a motion for continuance.  For the reasons that follow, we affirm.
FACTUAL BACKGROUND
            S.M. was born on July 16, 2009.  Raul has been incarcerated all of S.M.’s life
and has never met his daughter.  On
February 2, 2010, at approximately 3 p.m., S.M.’s mother left the infant alone
in a motel room.  S.M. was not quite
seven months old at the time.  A
neighboring motel guest heard the baby crying and discovered her alone on the bed.  The neighbor took her to another motel
resident who knew S.M.’s mother.  Around
2 a.m. on February 3, 2010, S.M.’s mother “strolled back in, intoxicated.”  An altercation occurred between S.M.’s mother
and the resident caring for S.M.  The
police were dispatched to the motel and the Department was called.  The police arrested S.M.’s mother for child
endangerment, and the Department caseworker placed the baby in foster care. 
            The following day, the Department
filed its original petition for protection of a child, seeking conservatorship
of S.M. and termination of the parental rights of both parents.  The motion was accompanied by an affidavit
from the caseworker detailing the events leading to removal.  On February 5, 2010, the trial court entered
temporary orders appointing the Department as temporary sole managing
conservator.  The mother’s rights were terminated
prior to trial, which was scheduled for September 20, 2011.  
            At trial, the Department introduced judgments
from Raul’s four prior convictions.  Three
of the convictions involved assault and one involved possession of
cocaine.  In May 2001, Raul pled guilty
to assault of a police officer.  He was
placed on probation for five years, but less than seven months later, his
probation was revoked for failing to meet with his probation officer as
required.  Raul admittedly absconded to
Florida to try to get a job and to “start a new support for [his] family.”  As a result of violating the terms of his
probation, Raul was incarcerated for three years.  He evidently was released early because on
December 22, 2003, he was convicted for possession of cocaine and ordered to
serve 180 days.  Finally, the Department
introduced evidence of two separate convictions of family violence assault
causing bodily injury.  Both were
committed against S.M.’s mother.  Raul
pled guilty to the first offense and was sentenced to seventy-five days in the
El Paso County Jail.  He also pled guilty
to the second offense and was sentenced to four years’ imprisonment.
            At trial, Raul admitted he pled
guilty to each and every offense, but claimed he was actually innocent of all
charges.  For example, he testified that
because of his experiences with drugs, he’s a good role model for S.M. and is “educated
enough to tell her, Look, don’t be doing this.” 
However, the following question and answer session followed: 
Q.  [BY COUNSEL FOR S.M.]:  You didn’t learn that after your first assault
conviction? 
A.  [BY APPELLANT]:  No, I did not learn that, because it was
simply not an assault.  The police
officer assaulted me. 
Q.  Okay. 
You didn’t learn that after your conviction for possession of cocaine or
a cocaine pipe? 
A.  It wasn’t possession of cocaine.   
Q.  You pled guilty to possession of cocaine? 
A.  I pled guilty. 
I was not competent in the field of law.  If I was competent in the field of law, I
would have won all those cases. 
Q. You still didn’t learn from
being incarcerated, a second time, that you shouldn’t do stuff against the law;
correct? 
A.  It was -- correct.  Yes.  I
kept on doing it and doing it. 
Q.  But you’re testifying before the Court now
that you’ve learned your lesson now and you don’t intend to commit any crime? 
A.  Yes, sir. 
Q.  Even though you assaulted a family member? 
A.  It was not an assault.  Of course, under the law, even if I raise my
voice to her and she feels threatened, that is considered assault. 
Q.  But you physically touched her; correct? 
A.  Yes, I physically touched her. 
Q.  After being incarcerated for assault once,
incarcerated for cocaine once, you still broke the law with an assault on a
family member? 
A.  Yes. 
.          .          .
Q.  [BY MR. SHANE]:  Sir, earlier you testified that you had pled
guilty to hitting [S.M.’s mother] with your hand on her face; correct? 
A.  No, I did not. 
I pled guilty, but I did not hit her on the face.  It was due to the fact the State does not --
if I was to stay in jail, it’s three months. 
It’s a Class A misdemeanor.  It’s
three months without -- I need to get out, make money, so on.  So I pleaded guilty. 
Q.  You were under oath when you pled guilty;
right? 
A.  Yes, I pleaded guilty under oath.  
Q.  Just like you’re under oath today?
A.  Yes. 
Q. So you’re telling the Court,
prior, when you pled guilty under oath and said you did that, you were not
telling the truth? 
A.  I wanted to get out, yes.
Q.  You were not telling the truth under oath? 
A.  We had a complication. 
Q.  Sir, it’s a simple question.  Did you lie under oath when you pled guilty? 
A.  That I hit her on the face? Yes, I lied under
oath. 
Q.  Taking an oath really doesn’t mean anything to
you whether you’re going to tell the truth or not? 
A.  (No audible response.)
Q.  So under oath you lied; correct? 
A.  Under that day, yes.  That day, I did not assault her on the face. 
Q.  But you lied under oath when you said you did?

A.  Right. 
That day, yes. 
            Raul also testified regarding his
permanency plan for S.M.  “My plan for
the future is to educate my child, try to keep her away from society.”  He emphasized that he does not believe
society is a proper role model and that he wants to teach his daughter that the
system is corrupt.  In fact, he wants
S.M. to be brought to the prison to visit him so that “she could see what the
State is doing to me and other people.” 
            Raul acknowledged at trial that
currently he has no way of supporting S.M. because he is incarcerated, but he
has completed a drug course program and is up for parole.  Once out of prison he plans to look for a job
and to live in a one-bedroom duplex owned by his uncle.  His uncle also testified. He was willing to
help Raul upon release from prison.   The uncle lived in a duplex with a two bedroom
unit on one side and a one bedroom unit on the other.  The one bedroom unit was unoccupied and Raul could
stay there as long as he wanted. But it had been “kind of destroyed” by the
previous tenants, and it did not have electricity, a refrigerator, or a stove.
            Tanya Berry, a CPS specialist and
the on-going caseworker for S.M., testified regarding the Department’s plans
for S.M.  Adoption would be in the child’s
best interest.  Raul’s permanency plan was
not feasible because: 
As [Appellant],
himself, testified, he’s not sure if he is going to be paroled or not.  So that leaves us in a situation where, if we
waited around to see if he was going to be paroled, [S.M.] wouldn’t reach
permanency.  She wouldn’t reach -- she
would just be sitting in the system waiting for him. 
 
Berry had
been in contact with Raul’s sister who is interested in adopting S.M.  She is not interested in temporary placement
while awaiting Raul’s release from prison. 
The Department had not as yet performed a home study because the sister
recently moved, but the investigation was ongoing.  Berry also testified that background checks
were performed for all the relatives in the home and none had CPS or criminal
histories.  Berry then explained an alternative
plan in the event the child’s aunt could not or did not adopt her. S.M. has
been with the same foster parents since she was removed from her mother’s care
in February 2010 and has firmly bonded with them. 
            Berry described S.M. as a “very
active child . . . She’s a lovable child. 
Loves to be outside.  Loves to run
around.”  The child has a speech delay
but is receiving services and is “[v]ery adoptable.”
            After hearing all the evidence, the trial
court found that there was clear and convincing evidence to support termination
of Raul’s parental rights under subsections (E) and (Q) of Texas Family Code
Section 161.001(1).  The trial court also
found that termination was in S.M.’s best interest as required by Texas Family
Code Section 161.001(2).  
DENIAL OF APPELLANT’S MOTION FOR
CONTINUANCE
            We begin with Raul’s third point of
error involving the denial of his request for a continuance.  
Standard
of Review
            We review the denial of a motion for
continuance for an abuse of discretion.  Villegas v. Carter, 711 S.W.2d 624, 626
(Tex. 1986); see Serrano v. Ryan’s
Crossing Apartments, 241 S.W.3d 560, 564 (Tex.App.--El Paso 2007, pet.
denied); Apodaca v. Rios, 163 S.W.3d
297, 301 (Tex.App.--El Paso 2005, no pet.). 
Absent a clear abuse of discretion, a trial court’s action in granting
or denying a motion for continuance will not be disturbed.  Villegas,
711 S.W.2d at 626; Wilborn v. GE
Marquette Medical Systems, Inc., 163 S.W.3d 264, 267 (Tex.App.--El Paso
2005, pet. denied).  A trial court “abuses
its discretion when it reaches a decision so arbitrary and unreasonable as to
amount to a clear prejudicial error of law.” 
Johnson v. Fourth Court of Appeals,
700 S.W.2d 916, 917 (Tex. 1985).
            In determining whether a trial court
has abused its discretion, we do not substitute our judgment for that of the
trial court, but decide only whether the trial court acted without reference to
any guiding rules or principles.  Low v. Henry, 221 S.W.3d 609, 614 (Tex.
2007); Cire v. Cumings, 134 S.W.3d
835, 838-39 (Tex. 2004); In the Interest
of G.A.H. and K.D.B, No. 02-11-00015-CV, 2011 WL 4711980, at *3
(Tex.App.--Fort Worth, Oct. 6, 2011, no pet.)(mem. op.).  In other words, we cannot conclude that a
trial court abused its discretion merely because we would have ruled differently
under the same circumstances.  E.I. du Pont de Nemours and Co., Inc. v.
Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see Low, 221 S.W.3d at 620; In
the Interest of G.A.H. and K.D.B,, 2011 WL 4711980, at *3.
Non-Compliance
With Rule 251
            A motion for continuance must be in
writing, state the specific facts supporting the motion, and be verified or
supported by an affidavit.  See Serrano, 241 S.W.3d at 564; Tex.R.Civ.P. 251.  It shall not be granted except for “sufficient
cause supported by affidavit, or by consent of the parties, or by operation of
law.”  Tex.R.Civ.P.
251.  If the motion is not verified or
supported by an affidavit, we presume the trial court did not abuse its
discretion by denying a continuance.  See Tenneco
Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Serrano, 241 S.W.3d at 564; Wilborn, 163 S.W.3d at 267; Southwest Country Enterprises, Inc. v. Lucky
Lady Oil Co., 991 S.W.2d 490, 493 (Tex.App.--Fort Worth 1999, pet. denied);
Mathew v. McCoy, 847 S.W.2d 397,
399-400 (Tex.App.--Houston [14th Dist.] 1993, no writ).  Verification is “[a] formal declaration made
in the presence of an authorized officer, such as a notary public, by which one
swears to the truth of the statements in the document.”  Andrews
v. Stanton, 198 S.W.3d 4, 8 (Tex.App.--El Paso 2006, no pet.), citing Black’s Law Dictionary 1556 (7th
Ed. 1999).  
            The motion was signed by defense
counsel, but it was neither verified nor supported by an affidavit.
Accordingly, the trial court did not abuse its discretion in denying the
motion.  See In re G.A.H., 2011 WL 4711980, at *4; In the Interest of C.P.V.Y., 315 S.W.3d 260, 270 (Tex.App.--Beaumont
2010, no pet.); see also In the Interest
Z.C., 280 S.W.3d 470, 478 (Tex.App.--Fort Worth 2009, pet. struck)(holding
that where the motion for continuance was unsworn and not supported by an affidavit,
“under the plain language of the rule, the trial court was without discretion
to grant it”).  Issue Three is overruled.

TERMINATION OF PARENTAL RIGHTS
            Raul’s remaining four issues
challenge the legal and factual sufficiency of the evidence to support the
trial court’s termination order.  The
natural right that exists between parents and their children is one of
constitutional magnitude.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985); see also Santosky v. Kramer,
455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982)(acknowledging
that the right of a parent to maintain custody of and raise his or her child “is
an interest far more precious than any property right.”); In the Interest of M.S., E.S.,
D.S., S.S., and N.S., 115
S.W.3d 534, 547 (Tex. 2003)(noting that Texas courts recognize that “a
parent’s interest in maintaining custody of and raising his or her child is paramount”).  Accordingly, involuntary termination of
parental rights is a drastic remedy which divests the parent and child of all
legal rights, privileges, duties, and powers normally existing between them,
except for the child’s right to inherit from the parent.  Id.;
In the Interest of D.S.P. and H.R.P.,
210 S.W.3d 776, 778 (Tex.App.--Corpus Christi 2006, no pet.).  For this reason, we strictly scrutinize
termination proceedings and construe any statutes authorizing involuntary
termination in favor of the parent.  Holick, 685 S.W.2d at 20-21.
            Although parental rights are of
constitutional magnitude, they are not absolute.  In the
Interest of C.H., 89 S.W.3d 17, 26 (Tex. 2002)(“Just as it is imperative
for courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the
child not be sacrificed merely to preserve that right.”).  Instead, because of the severity and
permanency of termination, due process requires the party seeking to terminate
parental rights prove the necessary elements by the heightened burden of proof
of clear and convincing evidence.  In the Interest of B.L.D., 113 S.W.3d
340, 353-54 (Tex. 2003).  This heightened
standard is likewise statutorily required. 
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 section 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 2008).  “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 the Interest of J.F.C., 96 S.W.3d
256, 263 (Tex. 2002); see also In the
Interest of 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); In the
Interest of C.D., No. 02-10-00070-CV, 2011 WL 1743688, at *4
(Tex.App.--Fort Worth May 5, 2011, no pet.).  
Standards
of Review
            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 the
Interest of H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In the Interest of C.D., No. 02-10-00070-CV, 2011 WL 1743688, at *5
(Tex.App.--Fort Worth May 05, 2011, no pet.). 
We determine whether, “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; In re
J.F.C., 96 S.W.3d at 266; In the
Interest of T.G., No. 14-09-00299-CV, 2010 WL 1379977, at *5 (Tex.App.--Houston
[14th Dist.] Apr. 8, 2010, no pet.).
Finding
of Endangerment Under Subsection 161.001(1)(E)
 
            In his first two issues, Raul
challenges the factual sufficiency of the evidence to support involuntary termination
under Section 161.001(1), subsections (E) and (Q).  However, only one predicate violation under Section
161.001(1) is necessary to support a termination decree.  Tex.Fam.Code
Ann. § 161.001(1); In re D.M.,
58 S.W.3d at 813; In the Interest of S.F.,
32 S.W.3d 318, 320 (Tex.App.--San Antonio 2000, no pet.); see also Texas Department of Human Services v. E.B., 802 S.W.2d
647, 649 (Tex. 1990)(op. on reh’g).  For
the reasons discussed below, we conclude the evidence is factually sufficient to
support the trial court’s finding under subsection (E) and therefore we need
not address the challenges with respect to subsection (Q).  
            Under subsection E of Section
161.001(1), the trial court was required to find, by clear and convincing
evidence, that Raul, “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).  The term “endanger” means that the child was
exposed to loss or injury or jeopardized. 
See Texas Department of Human
Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  Endangerment encompasses “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. 
Likewise, while endangerment often entails 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 emotional
well-being of the child.  See id.; In the interest of U.P., 105 S.W.3d 222, 233 (Tex.App.--Houston
[14th Dist.] 2003, pet. denied); Robinson
v. Texas Department of Protective & Regulatory Services, 89 S.W.3d 679,
686 (Tex.App.--Houston [1st Dist.] 2002, no pet.).  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; Smith v.
Sims, 801 S.W.2d 247, 250 (Tex.App.--Houston [14th Dist.] 1990, no pet.). 
            The
relevant inquiry for termination under Section 161.001(1)(E), is whether
evidence exists that the endangerment was the direct result of the parent’s
conduct, including acts, omissions, or failures to act.  Tex.Fam.Code Ann. §
161.001(1)(E); In the Interest of J.T.G.,
121 S.W.3d 117, 125 (Tex.App.--Fort Worth 2003, no pet.).  Termination requires a voluntary, deliberate,
and conscious course of conduct; it must be based on more than a single act or
omission.  In re J.T.G., 121 S.W.3d at 125; In the Interest of J.W., 152 S.W.3d 200, 205 (Tex.App.--Dallas
2004, pet. denied).  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.  Further, in considering
whether a relevant course of conduct has been established, a court properly may
consider both actions and inactions occurring both before and after a child’s
birth.  See In the Interest of S.T., 263 S.W.3d 394, 401-02 (Tex.App.--Waco
2008, pet. denied); see In the Interest
of A.S., D.S., and L.A.S., 261 S.W.3d 76, 83 (Tex.App.--Houston [14th
Dist.] 2008, pet. denied).
            The endangerment to the 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 the Interest of
R.W., 129 S.W.3d 732, 738-39 (Tex.App.--Fort Worth 2004, pet.
denied)(considering drug and alcohol abuse in endangerment finding).  Evidence of criminal conduct, convictions,
and imprisonment and its effect on a parent’s life and ability to parent may
establish an endangering course of conduct. 
In re J.T.G., 121 S.W.3d at
133.  Imprisonment alone does not
constitute an endangering course of conduct but it is a fact properly
considered on the endangerment issue.  Boyd, 727 S.W.2d at 533-34; In re R.W., 129 S.W.3d at 743-44.  Routinely subjecting a child to the
probability that she will be left alone because her parent is in jail,
endangers the child’s physical and emotional well-being.  See In
the Interest of S.D., 980 S.W.2d 758, 763 (Tex.App.--San Antonio 1998, pet.
denied.  However, “the relationship of
the parent and child, as well as efforts to improve or enhance parenting
skills, are relevant in determining whether a parent’s conduct results in ‘endangerment’
under section 161.001(1)(E), even where the parent is incarcerated.”  In the
Interest of D.T., 34 S.W.3d 625, 640 (Tex.App.--Fort Worth 2000, pet.
denied).
            In this case, there is evidence of
multiple criminal convictions, including three convictions for assault causing
bodily injury, two of which involved domestic violence against S.M.’s
mother.  One of those occurred during
pregnancy.  Even though all of these
offenses occurred before S.M. was born, they can still be considered as part of
a voluntary, deliberate, and conscious course of conduct that had the effect of
endangering S.M.  See In the Interest of R.W., 129 S.W.3d 732, 738 (Tex.App.--Fort
Worth 2004, pet. denied); Harris v.
Herbers, 838 S.W.2d 938, 942-43 (Tex.App.--Houston [1st Dist.] 1992, no
writ); see also In re S.D., 980
S.W.2d at 763 (conduct that routinely subjects a child to the probability that
the child will be left alone because a parent is jailed endangers both the
physical and emotional well-being of the child).  Abusive and violent criminal conduct by a
parent can produce an environment that endangers the well-being of a child.  In the Matter
of B.R., 822 S.W.2d 103, 106 (Tex.App.--Tyler 1991, writ denied). Evidence
as to how a parent has treated another child or spouse is relevant regarding
whether a course of conduct under Section 161.001(1)(E) has been established.  In the
Interest of D.T., 34 S.W.3d 625, 636-37 (Tex.App.--Fort Worth 2000, pet.
denied).  Evidence that a person has
engaged in abusive conduct in the past permits an inference that the person
will continue violent behavior in the future.  Schaban-Maurer
v. Maurer-Schaban, 238 S.W.3d 815, 824 (Tex.App.--Fort Worth 2007, no
pet.); In the Interest of M.G.M., 163
S.W.3d 191, 202 (Tex.App.--Beaumont 2005, no pet.).  Instead of taking any responsibility for his
prior criminal conduct, Raul claimed that he was actually innocent, despite his
guilty pleas.  In so doing, he admitted
to perjury.  He proclaims that he is a
victim of a corrupt system, which is the lesson he intends to teach his
daughter.            
            We must conclude that there is
sufficient evidence from which a rational trier of fact could have formed a
firm belief or conviction that Raul engaged in a course of conduct endangering his
daughter’s physical or emotional well-being. 
Thus, the evidence is factually sufficient to support the trial court’s termination
finding on the Section 161.001(1)(E) ground. 
We overrule Issues One and Two.  We must now determine whether the evidence was
legally and factually sufficient to support the trial court’s finding that
termination was in the best interests of the child.  See Tex.Fam.Code Ann. § 161.001(2). 


 
Best
Interest of the Child
            In Issues four and five
respectively, Appellant challenges the legal and factual sufficiency of the
evidence to support the trial court’s determination that terminating his
parental rights was in the best interest of his daughter.  There is a strong presumption that a child’s
best interests are served by maintaining the parent-child relationship.  In the
Interest of L.M., 104 S.W.3d 642, 647 (Tex.App.--Houston [1st Dist.] 2003,
no pet.).  The Supreme Court has set
forth a list of non-exclusive factors which can be used to determine a child’s
best interests.  See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).  The determination of a child’s best interest
does not require proof of any unique set of factors, and it does not limit
proof to any specific factors.  Id.  Under Holley,
in reviewing the sufficiency of the evidence to support a best-interest
finding, courts may consider (1) the desires of the child, (2) the present and
future physical and emotional needs of the child, (3) the present and future
emotional and physical danger to the child, (4) the parental abilities of the
persons seeking custody in promoting the best interest of the child, (5) the
programs available to assist these individuals to promote the best interest of
the child, (6) the plans for the child by the individuals or agency seeking
custody, (7) the stability of the home or proposed placement, (8) acts or
omissions of the parent which may indicate the existing parent-child
relationship is not appropriate, and (9) any excuse for the parent’s acts or
omissions.  Id.  The same evidence of
acts or omissions used to establish grounds for termination under Section
161.001(1) may be probative in determining the best interests of the child.  In the
Interest of C.H., 89 S.W.3d 17, 28 (Tex. 2002); In re L.M., 104 S.W.3d at 647. 
Termination of the parent-child relationship is not justified when the
evidence shows merely that a parent’s failure to provide a more desirable
degree of care and support of the child is due solely to misfortune or the lack
of intelligence or training, and not to indifference or malice.  Clark v.
Dearen, 715 S.W.2d 364, 367 (Tex.App.--Houston [1st Dist.] 1986, no writ).
            At the time of trial, S.M. was only
two years old and far too young to express her desires to the court.  Clearly, she has never met her father and
therefore there is no reason to believe that the child has any conscious
knowledge of him.  See Walker v. Texas Department of Family and Protective Services,
312 S.W.3d 608, 619 (Tex.App.--Houston [1st Dist.] 2009, pet. denied).  “The goal of establishing a stable, permanent
home for a child is a compelling state interest.”  Walker,
312 S.W.3d at 619, citing In re C.E.K.,
214 S.W.3d 492, 498 (Tex.App.--Dallas 2006, no pet.).  While there was testimony that Raul once asked
his uncle to call S.M.’s mother, he did not make any other effort to meet or
contact his child, nor did he recall ever asking a family member to contact
S.M.  This failure to attempt or maintain
any significant contact with S.M. supports the conclusion that Raul is not able
to meet S.M.’s physical and emotional needs. 
See In the Interest of T.G.,
No. 14-09-00299-CV, 2010 WL 1379977, at *9 (Tex.App.--Houston [14th Dist.] Apr.
8, 2010, no pet.).  Additionally, the
evidence discussed in support of the trial court’s finding of endangerment, is
also probative in determining the child’s best interest.  See In
re C.H., 89 S.W.3d at 28.  His multiple
convictions, including a conviction for domestic assault during pregnancy,
demonstrate a lack of parental ability.  
            Caseworker
Tanya Berry testified that S.M.’s permanency plan is adoption.  Currently, the Department is looking at Raul’s
sister as a potential adoptive parent. 
The child’s aunt has expressed her desire to adopt S.M., and she, as
well as the other members of her household, have all passed background checks.  There is also a back-up plan for adoption by
S.M.’s foster family as the child is doing well in their household     
            In light of all of the evidence, the
trial court could have reasonably formed a firm belief or conviction that
termination of Raul’s parental rights was in the best interest of S.M.  Accordingly, we overrule Issues Four and Five
and affirm the order of termination.
 
 
September 26, 2012                            _______________________________________________
ANN CRAWFORD
McCLURE, Chief Justice
 
Before McClure, C.J., Rivera, and Antcliff, JJ.

