                                  Fourth Court of Appeals
                                          San Antonio, Texas
                                     MEMORANDUM OPINION

                                              No. 04-18-00866-CV

                                     In the Interest of E.A.M.V., a Child

                      From the 224th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2017-PA-02217
                         Honorable Charles E. Montemayor, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Irene Rios, Justice

Delivered and Filed: May 1, 2019

AFFIRMED

           Father appeals from a judgment terminating his parental rights to his child, E.A.M.V. 1 In

three issues, Father argues (1) the trial court erred in finding that he failed to admit paternity under

section 161.002(b)(1) of the family code; (2) the evidence was legally or factually insufficient to

support the trial court’s finding that termination was in E.A.M.V.’s best interest under section

161.001(b)(2) of the family code; and (3) the evidence was legally or factually insufficient to

support the trial court’s finding that termination was not based on the circumstances listed in

section 161.001(c) of the family code. See TEX. FAM. CODE ANN. §§ 161.001(b)(2), 161.002,

161.001(c). We affirm the trial court’s judgment.



1
 To protect the identity of a minor child in an appeal from a judgment terminating parental rights, we refer to the
appellant as “Father” and to the child by her initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
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                                                     BACKGROUND

            The Texas Department of Family and Protective Services filed an original petition claiming

Father was the alleged father of E.A.M.V. and seeking to terminate his parental rights. At the time,

E.A.M.V. was only three months old. The Department was appointed E.A.M.V.’s temporary

managing conservator. About a year later, the case was tried to the trial court. A Department

caseworker, Father, and E.A.M.V.’s mother testified at trial. Father and E.A.M.V.’s mother, who

were both in prison at the time of trial, testified by telephone. After hearing the evidence, the trial

court terminated Father’s parental rights on the ground that he did not respond to the Department’s

petition by timely filing an admission of paternity. See TEX. FAM. CODE ANN. § 161.002(b)(1).

Alternatively, the trial court terminated Father’s parental rights because it found, by clear and

convincing evidence, four statutory grounds to support termination: (1) Father had been convicted

of the offense of indecency with a child; (2) Father had constructively abandoned E.A.M.V.; (3)

Father had failed to comply with the provisions of a court order that specifically established the

actions necessary for him to obtain E.A.M.V.’s return; and (4) Father had knowingly engaged in

criminal conduct that had resulted in his conviction for an offense and confinement or

imprisonment and inability to care for the child for not less than two years from the date of the

filing of the Department’s petition. See id. § 161.001(b)(1)(L),(N),(O),(Q). The trial court also

found that termination of Father’s parental rights would be in E.A.M.V.’s best interest. See id.

161.001(b)(2). Father appealed. 2

                                          FAILURE TO ADMIT PATERNITY

            In his first issue, Father argues the trial court erred in terminating his parental rights on the

ground that he did not admit paternity. Section 161.002(b)(1) of the family code provides the court



2
    The trial court’s judgment also terminated the parental rights of E.A.M.V.’s mother, but she did not appeal.


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may summarily terminate the rights of an alleged father if “after being served with citation, he

does not respond by timely filing an admission of paternity or a counterclaim for paternity under

Chapter 160.” See id. § 161.002(b)(1). “There are no formalities that must be observed when filing

an admission of paternity or for such an admission to be effective.” In re U.B., No. 04-12-00687-

CV, 2013 WL 441890, at *2 (Tex. App.—San Antonio 2013, no pet.).

       Here, Father argues the trial court erred in terminating his parental rights under section

161.002(b)(1) because the record shows that he admitted his paternity of E.A.M.V. in a letter he

wrote to the trial court and in his trial testimony. We agree that the record establishes that Father

admitted paternity within the meaning of section 161.002(b)(1). About two weeks after the

Department filed its petition, Father filed a letter with the trial court clerk, stating: “I am writing

this letter to inform the court that I am the father of [E.A.M.V.] . . . the child in case number 2017-

PA-02217 and I do not deny parentage.” In the letter, Father asked the court to appoint his mother

as sole managing conservator of E.A.M.V. while he served his prison term. Father also asked the

trial court to appoint an attorney to represent him and to allow him time to prepare his defense.

Furthermore, at trial, Father testified, “I am the biological father of [E.A.M.V.].” Father’s letter to

the trial court and his trial testimony constituted admissions of paternity within the meaning of

section 161.002(b)(1) of the family code. See In re S.R.J.-Z., 537 S.W.3d 677, 682 (Tex. App.—

San Antonio 2017, pet. denied) (concluding father’s appearance and participation at trial, including

his sworn admission that he was the children’s father and trial counsel’s advocacy against parental

termination, amounted to an admission of paternity under section 161.002(b)(1)); In re U.B., 2013

WL 441890, at *2 (holding that alleged father’s letter to trial judge referring to the children as “my

children” and alleged father’s testimony that he was the father of the children constituted an

admission of paternity consistent with section 161.002(b)(1)).




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         We hold the trial court erred in concluding that Father did not respond to the Department’s

petition by timely filing an admission of paternity and in terminating his parental rights based on

section 161.002(b)(1). See In re S.R.J.-Z., 537 S.W.3d at 682; In re U.B., 2013 WL 441890, at *2.

We sustain Father’s first issue; however, the trial court also found that the Department proved, by

clear and convincing evidence, four statutory grounds under section 161.001(b)(1) and that

termination was in E.A.M.V.’s best interest under section 161.001(b)(2). See TEX. FAM. CODE

ANN. § 161.001(b)(1)(L),(N),(O),(Q); (b)(2). Because the trial court also terminated Father’s

parental rights based on section 161.001(b), we cannot reverse the judgment unless we conclude

that it cannot be supported under section 161.001(b).

                         SECTION 161.001(B) AND THE CHILD’S BEST INTEREST

         In his second issue, Father argues the evidence was legally or factually insufficient to

support the trial court’s finding that termination of his parental rights was in E.A.M.V.’s best

interest. Father does not challenge the sufficiency of the evidence to support the trial court’s

findings as to any of the statutory grounds under section 161.1001(b)(1). See id.

§ 161.001(b)(1)(L),(N),(O),(Q). Father only challenges the sufficiency of the evidence to support

the trial court’s best interest finding. See id. § 161.001(b)(2).

         When reviewing the sufficiency of the evidence, we apply the well-established standards

of review for legal and factual sufficiency. See TEX. FAM. CODE ANN. §§ 101.007, 161.206(a); In

re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency); In re J.P.B., 180 S.W.3d 570,

573 (Tex. 2005) (legal sufficiency). In evaluating a child’s best interest, we consider the non-

exhaustive Holley factors. 3 In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013); Holley v. Adams,


3
 These factors include: (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any
present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking
custody; (5) the programs available to assist the individuals seeking custody to promote the child’s best interest; (6)
the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed


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544 S.W.2d 367, 371-72 (Tex. 1976). However, “[t]he absence of evidence about some of these

[factors] would not preclude a factfinder from reasonably forming a strong conviction or belief

that termination is in the child’s best interest, particularly if the evidence were undisputed that the

parental relationship endangered the safety of the child.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

We also consider the factors set forth in section 263.307(b) of the Texas Family Code. 4 See TEX.

FAM. CODE ANN. § 263.307(b). Evidence that proves one or more statutory ground for termination

may also constitute evidence illustrating that termination is in the child’s best interest. In re C.H.,

89 S.W.3d at 28. A best interest analysis may consider direct and circumstantial evidence,

subjective factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—

San Antonio 2013, pet. denied). “A trier of fact may measure a parent’s future conduct by his past

conduct and determine whether termination of parental rights is in the child’s best interest.” Id.

         With these standards and factors in mind, we consider the trial evidence as it relates to

E.A.M.V.’s best interest. The evidence showed that E.A.M.V. was only fifteen months old at the

time of trial. E.A.M.V. had been removed from her mother’s care when she was three months old


placement; (8) the parent’s acts or omissions which may indicate that the existing parent-child relationship is improper;
and (9) any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
4
 These factors are considered in determining whether the parent is willing and able to provide the child with a safe
environment: (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home
placements; (3) the magnitude, frequency, and circumstances of harm to the child; (4) whether the child has been the
victim of repeated harm after the initial report and intervention by the department; (5) whether the child is fearful of
living in or returning to the child’s home; (6) the results of psychiatric, psychological, or developmental evaluations
of the child, the child’s parents, other family members, or others who have access to the child’s home; (7) whether
there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’s family
to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s
close supervision; (11) the willingness and ability of the child’s family to effect positive environmental and personal
changes within a reasonable period of time; (12) whether the child’s family demonstrates adequate parenting skills,
including providing the child and other children under the family’s care with: (A) minimally adequate health and
nutritional care; (B) care, nurturance, and appropriate discipline consistent with the child’s physical and psychological
development; (C) guidance and supervision consistent with the child’s safety; (D) a safe physical home environment;
(E) protection from repeated exposure to violence even though the violence may not be directed at the child; and (F)
an understanding of the child’s needs and capabilities; and (13) whether an adequate social support system consisting
of an extended family and friends is available to the child. TEX. FAM. CODE ANN. § 263.307(b).


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and had been placed with a relative, her great-grandmother. Father had never met E.A.M.V. in

person. He had only seen E.A.M.V. once by way of video conference. At the time of trial, Father

was serving a prison sentence for possession of a firearm by a felon. Father and E.A.M.V.’s mother

have an older child, who had been removed from his parents’ care as a baby. In the older child’s

case, Father and the Department had reached a settlement agreement and Father had retained his

parental rights.

        A caseworker testified that the Department had serious concerns about Father, who was a

lifetime registered sex offender. Father had been convicted of indecency with a child. The victim

in that case was a very young child. Based on these circumstances, the caseworker believed Father

posed a danger to E.A.M.V., who was still very young and vulnerable. Furthermore, the

caseworker was concerned because Father had told her that he planned to “take custody” of

E.A.M.V. when he was released from prison. Additionally, the caseworker pointed out that Father

did not complete any of the services in his service plan. At the beginning of the case, the

caseworker had provided Father a copy of the service plan and asked Father if there were any

services available at the prison where he was incarcerated at the time. Father wrote back saying

that none of the services the Department requested were offered at the prison where he was

incarcerated. The caseworker characterized her dealings with Father as “very rocky.” Father

became upset and showed his anger very quickly. The caseworker believed Father did not have

the ability to parent E.A.M.V., to provide her with a safe and stable home environment, or to meet

her physical and emotional needs.

        The caseworker further testified that E.A.M.V. was living with the child’s great-

grandmother, who had cared for E.A.M.V. for virtually all her life. E.A.M.V. referred to her great-

grandmother as her mother and was “thriving” in her current environment. The Department’s long-

term plan for E.A.M.V. was adoption by her great-grandmother. However, the caseworker also


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said the Department would be reevaluating E.A.M.V.’s current placement based on new

information. The caseworker had just learned that the great-grandmother’s daughter, who

frequently visited the great-grandmother’s home, had been charged with several serious criminal

offenses in the past. The caseworker indicated that another relative, a cousin, might be a viable

placement option for E.A.M.V., but she was not certain about this.

       In his testimony, Father admitted that he had been convicted of indecency with a child, a

four-year-old girl. Nevertheless, Father claimed he would not be a danger to E.A.M.V. Father

explained that he planned to use legal means to regain custody of his children upon his release

from prison. Father said he never received a copy of the service plan in this case. However, Father

also said the caseworker had come to the county jail to talk to him about the case. Father

acknowledged that his prison release date was uncertain; he could be released in the next six

months, or he could remain in prison until 2025. Father said that he would like for E.A.M.V. to be

placed with his mother. Finally, E.A.M.V.’s mother testified that she believed that Father would

never hurt E.A.M.V.

       A parent’s sexual abuse of another child is a relevant consideration in deciding if the parent

poses a danger to the physical and emotional well-being of his own child. In re S.G., No. 01-18-

000728-CV, 2019 WL 1448870, at *9 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet. h.)

(recognizing that the factfinder was free to conclude that a parent who had been convicted of

aggravated assault of a child posed a physical and emotional danger to his own child); In re R.J.C.,

04-09-00106-CV, 2010 WL 816188, at *2 (Tex. App.—San Antonio Mar. 10, 2010, no pet.)

(concluding evidence was legally and factually sufficient to support the termination of parental

rights based on the appellant’s sexual behavior towards at least two other children, a conviction

for aggravated sexual assault of a child, and concerns about the effect appellant’s sexual behavior

might have on the child the subject of the termination suit). Additionally, “[a] parent’s


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incarceration is relevant to his ability to meet the child’s present and future physical and emotional

needs.” In re J.G.S., 550 S.W.3d 698, 706 (Tex. App.—El Paso 2018, no pet.). “[A] parent’s

incarceration at the time of trial makes the child’s future uncertain.” Id.

       Here, E.A.M.V. was too young to express her desires, but E.A.M.V. had no bond with

Father. Father had been incarcerated for the entirety of this case and his prison release date was

uncertain. Based on this evidence, the trial court could have determined that Father, through his

own course of conduct, had put himself in a position in which he was unable to meet E.A.M.V.’s

present and future physical and emotional needs. Additionally, because Father had committed a

sexual crime against another child, the trial court was free to conclude that Father posed a danger

to E.A.M.V.’s physical and emotional well-being. See In re S.G., 2019 WL 1448870, at *9; In re

R.J.C., 2010 WL 816188, at *2. Additionally, the trial court could have disbelieved the testimony

from Father and E.A.M.V.’s mother that Father would not harm E.A.M.V. See In re J.B.P., 180

S.W.3d at 573 (recognizing that the appellate court defers to the factfinder on witness credibility

issues). Finally, given the other circumstances indicating that termination was in E.A.M.V.’s best

interest, evidence that the Department had received new information and was going to have to

reevaluate its plans for E.A.M.V.’s permanent placement is not dispositive. See In re C.H., 89

S.W.3d at 28 (noting that a lack of “definitive plans for permanent placement and adoption [is not]

the dispositive factor;” the question “is whether, on the entire record, a factfinder could reasonably

form a firm conviction or belief that termination of the parent’s rights would be in the child’s best

interest—even if the [Department] is unable to identify with precision the child’s future home

environment.”).

       Having reviewed the record and considered all the evidence in the appropriate light for

each standard of review, we conclude the trial court could have formed a firm belief or conviction

that termination of Father’s parental rights was in E.A.M.V.’s best interest. See TEX. FAM. CODE


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ANN. § 161.001(b)(2); In re H.R.M., 209 S.W.3d at 108; In re J.P.B., 180 S.W.3d at 573; see also

generally In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (recognizing an appellate court need not

detail the evidence if affirming a termination judgment). Therefore, the evidence was legally and

factually sufficient to support the trial court’s best interest finding. We overrule Father’s second

issue.

                             CIRCUMSTANCES PROHIBITING TERMINATION

         In his third issue, Father argues the evidence was legally or factually insufficient to support

the trial court’s finding that termination was not based on evidence of the circumstances listed in

section 161.001(c) of the family code. Section 161.001(c) prohibits a court from finding grounds

for termination of parental rights based on evidence that the parent (1) “homeschooled the child;”

(2) “is economically disadvantaged;” (3) “has been charged with a nonviolent misdemeanor

offense,” with certain enumerated exceptions; (4) “provided or administered low-THC cannabis

to a child for whom low-THC cannabis was prescribed under Chapter 169, Occupations Code;” or

(5) “declined immunization for the child for reasons of conscience, including a religious belief.”

TEX. FAM. CODE ANN. § 161.001(c). The only authority Father cites to support this argument is

section 161.001(c) itself.

         We have concluded that section 161.001(c) does not include language imposing a burden

on the Department to provide proof that termination is not based on the circumstances listed in the

statute. In re D.B., No. 04-18-00651-CV, 2019 WL 691433, at *4 (Tex. App.—San Antonio Feb.

20, 2019, pet. filed.); accord In re J.D.-V., No. 04-18-00743-CV, 2019 WL 938290, at *3 (Tex.

App.—San Antonio Feb. 27, 2019, pet. filed) (“[T]he Department does not carry a burden of proof

under section 161.001(c).”). Section 161.001(c) prohibits a court from finding grounds for

termination based on evidence of any of the listed circumstances. In re D.B., 2019 WL 691433, at




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*4; In re J.D.-V., 2019 WL 938290, at *3 (noting that section 161.001(c) “merely limits the bases

that a court may use to order a parental termination under section 161.001(b).”).

       In the present case, the Department was not required to provide proof that the grounds for

termination were not based any of the circumstances listed in section 161.001(c). See In re J.D.-

V., 2019 WL 938290, at *3; In re D.B., 2019 WL 691433, at *4. Additionally, the record does not

contain any evidence that Father homeschooled E.A.M.V., was economically disadvantaged, had

been charged with a nonviolent misdemeanor, administered low-THC cannabis to E.A.M.V., or

declined to have E.A.M.V. immunized. Therefore, the trial court could not have violated section

161.001(c). See In re D.B., 2019 WL 691433, at *4 (concluding the trial court could not have

violated section 161.001(c) when the record did not contain any evidence of the circumstances

listed in the statute). We overrule Father’s third issue.

                                            CONCLUSION

       We affirm the trial court’s judgment.

                                                    Irene Rios, Justice




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