                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00180-CV


IN THE INTEREST OF S.S.A.,
A CHILD


                                     ----------

          FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

                                I. INTRODUCTION

      Appellant Frank2 appeals the trial court’s order terminating the parent-child

relationship between S.S.A. and himself. In six issues, Frank challenges the

legal and factual sufficiency of the evidence supporting each of the grounds the

trial court found for termination under Texas Family Code section 161.001(1). 3

      1
      See Tex. R. App. P. 47.4.
      2
      Because this case involves the termination of parental rights to a minor,
we use aliases or initials to describe the parties. See Tex. R. App. P. 9.8.
      3
      See Tex. Fam. Code Ann. § 161.001(1) (West Supp. 2011).
He also challenges the legal and factually sufficiency of the evidence supporting

the trial court’s finding that termination of his parental rights regarding S.S.A. was

in her best interest.4 We will affirm.

                                  II. BACKGROUND

      This case originated in an alleged sexual assault of S.S.A. The alleged

assailant was the roommate of S.S.A.’s biological mother, Kim, with whom S.S.A.

lived in Denton, Texas.         The ensuing investigation involved the Texas

Department of Family and Protective Services (CPS or Department) seeking the

termination of Frank’s and Kim’s parental rights to S.S.A.

      When the termination proceedings began in November of 2009, S.S.A.

was four years old, and CPS had not yet located Frank. Due to travel issues,

Kim, who had now moved to East Texas with a boyfriend, was also not at the

initial hearing.5 She was, however, represented by counsel. At that time, CPS

asked that S.S.A. be temporarily placed with her maternal aunt and that the trial

court order an expedited home study of S.S.A.’s maternal grandfather, who lives

in Florida, so that she might be placed with him. S.S.A. had lived with him for

several months when she was a baby. The trial court granted CPS’s requests.




      4
       See Tex. Fam. Code Ann. § 161.001(2) (West Supp. 2011).
      5
       The record is replete with evidence that Kim would move frequently,
usually coinciding with her having a new boyfriend.


                                          2
      The trial court held a status hearing in June 2010.6 At the hearing, CPS

revealed that it had finally contacted Frank—located in an Iowa prison. After

receiving notification of CPS’s intention to seek termination of his paternal rights

to S.S.A., Frank answered by sending a letter to CPS seeking paternity testing

and the appointment of counsel. The trial court ordered paternity testing.

      At the time of an August 5, 2009 permanency hearing, Kim had also been

incarcerated in Iowa and S.S.A. had been placed with “her grandmother.” CPS

asked for S.S.A. to remain there, pending the scheduled paternity testing. The

trial court held another permanency hearing on November 22, 2010. At that

hearing, the trial court approved S.S.A.’s placement with her maternal

grandfather.

      On March 17, 2011, the trial court held another permanency hearing.

Frank, now represented by counsel, was still incarcerated in Iowa. Although Kim

had been released from incarceration in the fall of 2010, she had not returned to

Texas and was not at the hearing.         A CPS investigator testified that tests

confirmed Frank as S.S.A.’s biological father. Frank’s attorney explained that

although he had initially spoken with Frank on the phone, Frank had since been

moved to a different Iowa penal facility, and that he had since had difficulty

contacting Frank. The trial court ordered that S.S.A. remain with her maternal

grandfather.

      6
        There is evidence in the record that hearings other than those mentioned
in this opinion were also held in conjunction with this termination suit.


                                         3
      The trial court held the termination trial on May 2, 2011. Kim’s attorney

testified that despite some contact with Kim earlier in the proceedings, and Kim’s

request to attend the termination trial, Kim had not responded to recent

notifications of the trial date and Kim had also not responded to repeated

attempts to contact her through her attorney. Frank’s court-appointed attorney

stated that he had recently spoken with Frank and that he wanted to attend the

trial, but that due to his incarceration in Iowa, Frank was unable to attend the

hearing.7 Due to the absence of both parents, Kim’s attorney moved to withdraw

Kim’s earlier request for a jury trial, and all parties agreed to proceed with a trial

before the bench instead.

      Nerrissa Bryant, a CPS investigator, testified. According to Bryant, CPS

received a referral regarding S.S.A., concerning an allegation of a possible

sexual assault of S.S.A. by Kim’s then roommate. Bryant gathered information

about the alleged assault and also investigated S.S.A.’s familial setting. During

her investigation, Bryant learned of Frank. By Bryant’s account, Kim informed

her that Frank was in Iowa, but that she was unsure of his exact location. Kim

also relayed to Bryant that Frank was aware that he was S.S.A.’s father. Kim

conveyed to Bryant that Frank was unhappy about her having become pregnant

      7
       There is no evidence that Frank requested to participate in the trial
through other means such as affidavit or telephonic participation. See In re
D.D.J., 136 S.W.3d 305, 313–14 (Tex. App.—Fort Worth 2004, no pet.)
(reasoning that an inmate who is not allowed to participate in a family matter
lawsuit due to incarceration should be allowed to “proceed by affidavit,
deposition, telephone, or other effective means”).


                                          4
and that they later broke off their relationship. Bryant said that Kim told her that

Frank had never paid any child support and had never had any contact with

S.S.A. Bryant also said that, according to Kim, Frank did once try to set up a visit

with S.S.A. when she was roughly one year old, but that the visit never

happened. Bryant also testified that S.S.A. shared the last name of another of

Kim’s friends, who was neither Frank nor the person she lived with when

allegations of sexual abused were raised.

      Because Kim had previously tested positive for marijuana on an earlier

CPS referral regarding S.S.A. and because of her behavior during an interview,

Bryant called for drug testing.     Kim tested positive for methamphetamines.

Furthermore, Bryant said that CPS gathered evidence that Kim had sexually

assaulted S.S.A. and that, primarily because of drug use, had neglected S.S.A.

      Bryant said that her investigation revealed that Kim had two other children,

that she had been investigated before in Iowa regarding the two children, and

that although she did not believe that the two children were in Kim’s “care and

custody,” she found no evidence that they had been removed by that state’s child

protective services. Bryant said that her investigation only revealed the name of

Frank but no other information. She was unable to locate Frank. Bryant also

explained S.S.A.’s current living status. At the time of trial, S.S.A. lived with her

maternal grandfather. CPS believed that S.S.A. should remain there.

      Former CPS conservatorship caseworker Kayla Gulling also testified at

trial. Gulling was responsible for developing temporary orders pending this case.


                                         5
Gulling said that because Kim had missed numerous court appearances and

visitations with S.S.A., Gulling had only met Kim once, at a hearing, to which Kim

was transported from the Denton jail that she might attend.8       It was at this

hearing that Kim gave further information to Gulling which aided CPS in locating

Frank. After locating Frank, Gulling took Kim, who remained in a Denton jail, a

picture of Frank, and Kim confirmed that the picture was S.S.A.’s biological

father, Frank. After this, Gulling sent Frank a letter explaining that CPS had an

open case regarding S.S.A. and that he was her alleged biological father.

      Frank responded with a letter stating that he did not know of the existence

of S.S.A., that he questioned whether he was S.S.A.’s father, and that he would

like DNA testing to confirm his potential paternity.    Gulling also stated that

because Frank was frequently incarcerated, he had never had any contact with

S.S.A., and that his incarceration limited his ability to be a parent to S.S.A.

Based on this evidence, CPS also made the decision to seek termination of his

parental rights.

      S.S.A.’s aunt, whom she had been placed with temporarily earlier in the

pendency of this case, also testified at trial. Aunt testified that she had known

S.S.A. her entire life and that she first knew of Kim’s pregnancy with S.S.A. when

Kim traveled to Mississippi from Iowa with a man the family believed to be

S.S.A.’s father. She testified that Kim had told her Frank’s first name. Aunt said

      8
       This appears to be a permanency hearing where no reporter’s record was
transcribed.


                                        6
that although she had heard that Kim told Frank of her pregnancy with S.S.A.,

that information was secondhand.

      Aunt said that since S.S.A.’s birth, both she and S.S.A.’s maternal

grandfather frequently visited S.S.A. Aunt testified that S.S.A. had been placed

with her when Kim was investigated under a 2007 CPS referral. Aunt said that

she was aware of Kim’s drug use after the first CPS investigation regarding

S.S.A. According to Aunt, S.S.A. lived with either the maternal grandfather’s

friend, herself, or S.S.A.’s maternal grandfather during the initial CPS

investigation. Aunt testified that after CPS returned S.S.A. to Kim the first time,

Kim lost weight, began to be paranoid, and “was broken out . . . her face had

scabs and scars.” By Aunt’s account, Kim’s physical condition had deteriorated

to such a degree that “[Aunt] had a hard time recognizing her.”          Aunt also

testified that S.S.A.’s health deteriorated at the same time. Aunt recalled that

when she would pick up S.S.A. for visits, S.S.A. would become hysterical when

she realized they were returning home to Kim’s.

      Aunt testified that she believed S.S.A.’s maternal grandfather’s house was

the proper permanent place for S.S.A. Aunt said that the maternal grandfather

provided a stable home with a stable relationship—he has been married to Aunt’s

sister for more than twenty-five years.      Aunt testified that she believed it in

S.S.A.’s best interest that Kim’s parental rights be terminated due in large part to

Kim’s “constantly [bringing different] men in and out of her life, . . . so many I

could probably, you know, list them off on two hands.”


                                         7
      S.S.A.’s maternal grandfather also testified at trial. He said that Kim had

been in foster homes most of her life, but that at one point she was placed in an

Iowa “halfway house when she was around [seventeen].” The grandfather said

that Kim escaped from that facility with a person whom he understood was

S.S.A.’s biological father.    After a few moves and a displacement from

Mississippi caused by Hurricane Katrina, Kim lived with grandfather for a short

time. S.S.A. was born shortly thereafter. When S.S.A. was between nine and

fifteen months old, grandfather recalled Kim having multiple conversations with

Frank on the phone.      One such call revolved around Kim asking Frank for

financial support of S.S.A. and for him to “step up and take responsibility.” He

said that she specifically told Frank he was S.S.A.’s father. Grandfather said he

had no doubt that Frank was aware that he was S.S.A.’s biological father and

that these phone calls occurred prior to Frank’s current incarceration.

      Grandfather said that Kim previously had two children removed from her

custody in Iowa. He also testified that S.S.A. had stayed with him during both

CPS investigations. In fact, grandfather testified that he spent as much time with

S.S.A. as he could since she was born: “We used to try to pick her up on the

weekends and take her out to our house whenever we could.”

      Grandfather said that when S.S.A. first began living with him this most

recent time, she suffered from numerous health issues, including upper

respiratory infections. He opined that these infections were caused in part from

the constant moving and living in motels: “[T]hey lived in motels most of the time,


                                         8
so they smoked a lot, never opened the doors, so she was constantly at the ER.”

Grandfather said that since she had lived with him, S.S.A.’s health had improved

dramatically, and he was able to pay for an MRI himself prior to a recent eye

surgery that S.S.A. had needed since she was born and had been suggested at

two years old. Grandfather said that he and his wife, who also have a fourteen-

year-old daughter, were ready and willing to adopt S.S.A. and provide her with a

stable home.

      Lori Powell, a CASA representative, also testified. According to Powell,

S.S.A. was nearly five and one-half years old at the time of trial. Powell testified

that CPS’s home study of the maternal grandfather’s placement revealed a “very

positive” placement. Powell said that the grandfather “clearly [has] the ability to

provide a safe and stable environment” for S.S.A. Powell also said that CASA

recommended that the trial court appoint grandfather permanent managing

conservator of S.S.A., and that the grandfather wished to adopt S.S.A.

      Powell testified that permanency was “[a]bsolutely, critical” in a child’s life.

She recommended terminating Kim’s parental rights because S.S.A. had lacked

important elements in her life like “physical support, financial support, and her

emotional needs.”     Powell also said that CASA recommended terminating

Frank’s rights because ”[Frank] hasn’t had a relationship with [S.S.A.], and that

he is incarcerated and could be as far into as 2012.” She also said that Frank

had never provided any kind of support for S.S.A.—physical, financial, or

emotional. Powell said that based on the testimony at trial, she believed that


                                          9
Frank was aware of Kim’s pregnancy with S.S.A. And Powell also said that

Frank demonstrated a lack of interest in S.S.A.’s well-being by not attempting to

correspond with CPS about S.S.A.’s placement or how she was being provided

for, even after confirming his paternity through testing. But Powell also testified

that Frank’s request in his initial letter to the trial court for information regarding

the status of charges against S.S.A.’s alleged assailant in this latest referral and

for S.S.A.’s medical records did show “some concern” regarding S.S.A.’s well-

being.

         Rachel Phillips, a CPS conservatorship worker, testified that she also had

worked S.S.A.’s current referral, which led to CPS’s pursing termination of Kim’s

and Frank’s paternal rights and placement of S.S.A. with the maternal

grandfather. Phillips said that frequent visits to the maternal grandfather’s house

since S.S.A.’s placement there have revealed that “[S.S.A.] [is] doing well. She’s

had eye surgery recently, and it went well.“        Phillips said that the maternal

grandfather wished to adopt S.S.A.

         Phillips testified that she had no doubt that Frank knew of Kim’s pregnancy

with S.S.A. She also said that Frank knew of the criminal and drug-prevalent

environment that S.S.A. lived in when S.S.A. lived with Kim. Phillips averred that

Frank had not provided CPS with any family or kinship possibilities, that he was

not a placement option, nor was he able to provide S.S.A. with a safe

environment due to his incarceration, and that she believed Frank had

constructively abandoned S.S.A. She also testified that Frank had knowingly


                                          10
engaged in the criminal activity that he knew could lead to incarceration after he

had knowledge of S.S.A. Phillips said that Frank had demonstrated an inability

to care for S.S.A. and, despite evidence that Kim had sought financial support

from Frank for the care of S.S.A., he had never paid child support. Ultimately,

Phillips stated that

             The department feels that [Frank] has known that [S.S.A.] was
      his child. If not known, maybe that there was a great possibility that
      she was and that he engaged in criminal activities at that time that
      led to his incarceration and him not being able to care for her now.
      And so the department feels it’s in her best interest to have
      permanency, and we feel that she can have that with [her maternal
      grandfather].

      After closing arguments, and relative to Frank, the trial court said that it

was specifically finding by clear and convincing evidence that Frank “learned at

some point prior to his current incarceration that he was likely or alleged to be the

father of [S.S.A.].” The trial court also found that Frank had taken “no steps to

support [S.S.A.], to become a part of [S.S.A.’s] life, to determine [for sure]

whether or not he was, in fact, [S.S.A.’s] father, or do anything else in relation to

[S.S.A.].” The trial court also stated that Frank’s correspondence with the court

since learning of the termination suit demonstrated a “relatively shallow concern”

for S.S.A. The trial court found that Frank had knowingly placed or allowed

S.S.A. to remain in conditions that endangered her physical and emotional well-

being; that Frank had engaged in conduct or knowingly placed S.S.A. with

persons who engaged in conduct which endangered her physical and emotional

well-being; and that Frank had knowingly engaged in criminal conduct that has


                                         11
resulted in his conviction of an offense and confinement or imprisonment and

inability to care for S.S.A. for not less than two years from the date CPS filed this

termination petition. The trial court also found termination of Frank’s paternal

rights in S.S.A.’s best interest. Based on these findings, the trial court terminated

Frank’s paternal rights to S.S.A. This appeal followed.9

                                  III. DISCUSSION

      A.     Frank Knew of S.S.A. Prior to Paternity Testing

      In part of all of Frank’s six issues,10 he challenges the legal and factual

sufficiency of the evidence to support the trial court’s finding that he knew that he

was S.S.A.’s biological father.11 The Department responds that the trial court’s

finding that Frank knew of S.S.A. prior to his incarceration is supported legally

and factually by the record. We agree with the Department.


      9
       The trial court also ordered that Kim’s paternal rights to S.S.A. be
terminated. Kim did not file an appeal.
      10
         Frank’s issues on appeal track the issues raised in his motion for new
trial and in his statement of points, both filed fourteen days after the trial court
entered its order to terminate Frank’s parental rights. See Tex. Fam. Code Ann.
§ 263.405(b) (West Supp. 2011), amended by Act of May 19, 2011, 82d Leg.,
R.S., ch. 75, § 4, 2011 Tex. Gen. Laws 348, 349–50 (no longer requiring a party
seeking appellate review to have filed a statement of points with trial court).
      11
         In part of his briefing, Frank asserts that “[t]he testimony from all
witnesses indicates that [Frank] was unaware of his being the father of S.S.A.
until the results of the paternity test were made known.” This is simply false.
The trial court specifically found that Frank was aware of his paternity to S.S.A.
prior to his most recent incarceration and prior to the court-ordered paternity
testing. Moreover, multiple witnesses testified to Frank’s knowledge of his
paternity and that Frank knew of S.S.A. prior to his most recent incarceration.


                                         12
            1.    Burden of Proof

      A parent’s rights to “the companionship, care, custody, and management”

of his children are constitutional interests “far more precious than any property

right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982);

In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). In a termination case, the State

seeks not just to limit parental rights but to erase them permanently—to divest

the parent and child of all legal rights, privileges, duties, and powers normally

existing between them, except for the child’s right to inherit. Tex. Fam. Code

Ann. § 161.206(b) (West 2008); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

We strictly scrutinize termination proceedings and strictly construe involuntary

termination statutes in favor of the parent. Holick, 685 S.W.2d at 20–21; In re

M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort Worth 2008, no pet.).

      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.

2011); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).       Both elements must be

established; termination may not be based solely on the best interest of the child

as determined by the factfinder.    Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987).

      Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001, 206(a) (West 2008). Evidence is


                                       13
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).        Due process demands this heightened standard

because termination results in permanent, irrevocable changes for the parent

and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243

S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and

modification).

      B.     Legal Sufficiency Standard of Review

      In reviewing the evidence for legal sufficiency in parental termination

cases, we must 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 must review all the

evidence in the light most favorable to the finding and judgment. Id. This means

that we must assume that the factfinder resolved any disputed facts in favor of its

finding if a reasonable factfinder could have done so.           Id.   We must also

disregard all evidence that a reasonable factfinder could have disbelieved. Id.

We must consider, however, undisputed evidence even if it is contrary to the

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

reasonable factfinder could and disregard contrary evidence unless a reasonable

factfinder could not. Id.

      We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness credibility issues that depend on


                                          14
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 the

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

are not unreasonable. Id. at 573.

      C.     Factual Sufficiency Standard of Review

      In reviewing the evidence for factual sufficiency, we must give due

deference to the factfinder’s findings and not supplant the judgment with our own.

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

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

that the parent violated the applicable subsection to 161.001 and that the

termination of the parent-child relationship is in the best interest of the child. Tex.

Fam. Code Ann. § 161.001; 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.

      D.     Frank’s Knowledge of His Paternity

      Viewing the entire record in light most favorable to the trial court’s

judgment, the record reveals that Frank was aware of S.S.A. prior to her being

fifteen months old. S.S.A.’s grandfather testified that Kim discussed S.S.A. with

Frank on multiple occasions when S.S.A. lived with the grandfather between the

ages of nine months and fifteen months old. Furthermore, multiple Department


                                          15
representatives and one CASA representative all testified that Frank knew of his

paternity to S.S.A. prior to his current incarceration. There was also testimony

that Frank had someone inquire about S.S.A., prior to her being a year old.

      Frank’s response is that the record does not demonstrate his affirmative

knowledge of paternity until after the paternity test confirmed he was S.S.A.’s

biological father less than seven months prior to the termination trial. This court

also notes that there was testimony that at one time Kim may have believed a

man other than Frank was S.S.A.’s father. After carefully reviewing the entire

record and viewing all of the evidence in the light most favorable to the finding

and judgment, we hold that the evidence is such that a factfinder could

reasonably form a firm belief or conviction that Frank knew of his paternity to

S.S.A. before she was fifteen months old; thus, Frank knew of S.S.A. prior to the

conduct that led to his incarceration in 2009.        See Tex. Fam. Code Ann.

§ 161.001(1)(Q). Accordingly, we hold that the evidence is legally and factually

sufficient to support the trial court’s finding regarding Frank’s knowledge of his

paternity.

      E.     The Trial Court’s Section 160.001(1)(Q) Finding

      In part of his fourth issue, Frank contends that the evidence is legally and

factually insufficient to support the trial court’s finding that he knowingly engaged

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

resulting in his inability to care for S.S.A. for not less than two years from the

date of the filing of the petition.   Specifically, Frank argues that there is no


                                         16
evidence in the record of “the length of [Frank’s] incarceration and its end date.”

We disagree.

      Subsection 161.001(1)(Q) warrants termination of parental rights when a

parent knowingly engaged in criminal conduct, resulting in the parent’s conviction

of an offense, and the parent is both incarcerated and unable to care for the child

for at least two years from the date the termination petition was filed. Tex. Fam.

Code Ann. § 161.001(1)(Q). This court and other Texas appellate courts have

construed section 161.001(1)(Q) as requiring a three-step process. See In re

E.S.S., 131 S.W.3d 632, 639 (Tex. App.—Fort Worth 2004, no pet.); see also

In re Caballero, 53 S.W.3d 391, 395 (Tex. App.—Amarillo 2001, pet. denied).

First, the party seeking termination must establish that the parent’s knowing

criminal conduct resulted in incarceration for more than two years. E.S.S., 131

S.W.3d at 639–40. Second, the parent must produce some evidence as to how

he would provide or arrange to provide care for the child during that period. Id.

Finally, the party seeking termination would then have the burden of persuasion

that the arrangement would not satisfy the parent’s duty to the child. Id.

      In part of this issue, Frank contends that the trial court abused its

discretion by admitting certain evidence, over his hearsay objections, depicting

the date Frank was incarcerated and his expected release date. Frank contends

that without these admitted documents—exhibits 4, 9, and 10—the evidence is

insufficient to prove a release date satisfying section 160.001(1)(Q)’s

requirement that he has the inability to care for S.S.A. for not less than two years


                                        17
from the date of the filing of the petition to terminate his parental rights. Tex.

Fam. Code Ann. § 161.001(1)(Q).

      Assuming without deciding that the trial court should not have admitted the

challenged evidence, we cannot conclude on this record that Frank was harmed

by their admission. See Tex. R. App. P. 44.1(a)(1) (stating that reversal occurs

only when an error “probably caused the rendition of an improper judgment.”).

As the Department points out, the trial court took judicial notice of the court’s file.

In the court’s file, there exist multiple documents reflecting Frank’s expected

release date from his current incarceration in February 2012.           There is also

ample evidence in the record supporting the trial court’s finding that Frank knew

of his paternity to S.S.A. prior to his current conviction that led to his

incarceration and that it is expected he would remain there for two years from the

filing of the petition seeking termination. Indeed, the evidence demonstrates that

CPS sought termination in November 2009 and that Frank was scheduled to

remain incarcerated until February 2012.        We hold that, even assuming the

complained-of evidence should not have been admitted, the record contains

sufficient evidence to support the trial court’s findings as to the first element of a

161.001(1)(Q) finding; namely, that Frank knowingly committed criminal conduct

resulting in his incarceration for more than two years from the petition’s filing.

See E.S.S., 131 S.W.3d at 639–40.

      Furthermore, Frank bore the burden of demonstrating how he would

provide or arrange to provide care for S.S.A. during his incarceration. Id. The


                                          18
record, however, demonstrates that Frank never provided CPS with any family or

kinship possibilities for S.S.A.’s placement during his incarceration. Frank also

did not supply the trial court with any testimony, through affidavit or other means,

of how he intended to provide this support. Thus, Frank failed to carry his burden

demonstrating that he could provide for S.S.A. during his incarceration. See id.

Finally, because Frank failed to carry his burden, the Department was relieved of

carrying its burden of persuasion that Frank’s offered care provisions were

satisfactory. See Caballero, 53 S.W.3d at 396 (holding that petitioner carries no

burden of persuasion under 161.001(1)(Q)’s care element when parent fails to

provide some evidence of provisional care for child during incarceration). We

overrule Frank’s fourth issue.

      F.     Best Interest of S.S.A.

      In his fifth issue, Frank contends that the evidence is legally and factually

insufficient to support the trial court’s ruling that termination of the parent-child

relationship between Frank and S.S.A. is in S.S.A.’s best interest.

      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). The

following factors should be considered in evaluating the parent’s willingness and

ability to provide the child with a safe environment:

      (1)    the child’s age and physical and mental vulnerabilities;


                                         19
(2)   the frequency and nature of out-of-home placements;

(3)   the magnitude, frequency, and circumstances of the harm to
the child;

(4)    whether the child has been the victim of repeated harm after
the initial report and intervention by the department or other agency;

(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;


                                   20
            (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.

Id. § 263.307(b); R.R., 209 S.W.3d at 116.

Other, nonexclusive factors that the factfinder 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; (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).

      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


                                       21
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.

      Here, regarding S.S.A.’s age and physical and mental vulnerabilities, the

record demonstrates that S.S.A. was nearly five and one-half years old at the

time of trial. The record demonstrates that prior to her current placement with

her maternal grandfather, S.S.A.’s health had deteriorated and she was

frequently in the emergency room due to poor care and exposure to frequent

moves and smoke inhalation.        The record demonstrates that at best, Frank

simply did not take any action to aid S.S.A. regarding her physical or mental

vulnerabilities, or at worse, his complicity allowed S.S.A. to live in an environment

of drug abuse and crime.

      The record also demonstrates that prior to placement, S.S.A. was delayed

in receiving care for a congenital eye condition.          Since moving in with her

grandfather, S.S.A. has received the surgery she needed, and her health has

improved dramatically.

      Pertaining to the frequency and nature of out-of-home placements, S.S.A.

has already lived portions of her young life with a family friend, her grandmother,

her aunt on two occasions, her maternal grandfather on two occasions, and her

mother, who frequently moved and lived with a revolving door of boyfriends.

Frank has never been a part of S.S.A.’s life, and despite his knowledge of her

existence, never afforded any effort to assist her living conditions or otherwise


                                         22
provide a stable and safe environment for her to grow up in. In contrast, S.S.A.’s

maternal grandfather, who wishes to adopt S.S.A., has been one of the most

stable people in her life.    In addition to living with him during multiple CPS

referrals regarding Kim, the grandfather has also committed himself to visiting

S.S.A. as frequently as possible since her birth.       Reports indicated positive

reviews of her placement in her grandfather’s home. The maternal grandfather

also wishes to adopt S.S.A., giving her a permanency in living conditions that she

has lacked her entire life.

      The record is simply void of any evidence regarding the willingness and

ability of Frank to seek out, accept, and complete counseling services in

conjunction with CPS pertaining to S.S.A. Even assuming he was unaware of

S.S.A. until the paternity test, the trial court specifically found that his actions

since the paternity test have demonstrated a “relatively shallow concern” for

S.S.A. On the flip side, S.S.A.’s maternal grandfather has shown a willingness to

cooperate with CPS, including having a home study performed, and he has

allowed the agency’s close supervision of his relationship with S.S.A.

      The record further demonstrates that Frank has never provided any type of

care for S.S.A, including not providing health or nutritional care, or any other type

of care geared at providing S.S.A. with the proper physical and psychological

development she needs.        In contrast, the maternal grandfather has provided

food, shelter, financial support for an MRI, surgery and other health care needs,

and, perhaps most important, the grandfather has provided S.S.A. with a safe


                                         23
physical home environment that includes a social support system consisting of

his wife, his fourteen-year-old daughter, and his sister-in-law, S.S.A.’s aunt, who

is also heavily involved in S.S.A.’s life. Frank, on the other hand, through his

acts of crime and omission of care in S.S.A.’s life, has indicated that the existing

parent-child relationship between himself and S.S.A. is not a proper one. Indeed,

the record indicates that Frank has spent the majority of his life in and out of

prison, and other than an indication in the record that he intends to attend drug

counseling during his current incarceration, Frank did not explain to the trial court

any willingness to take steps necessary to become a better father to S.S.A.

      In summary, viewing the evidence in the light most favorable to the trial

court’s best interest finding, we conclude and hold that the evidence produced at

trial was sufficient to produce in the mind of the trial court a firm belief or

conviction as to the truth of the allegation that termination of Frank’s paternal

rights to S.S.A. was in her best interest. We overrule Frank’s fifth issue. Having

overruled portions of Frank’s six issues, and having overruled his fourth and fifth

issues in their entirety, we need not address the remaining portions of Frank’s

issues pertaining to the trial court’s other findings under 161.001.      See In re

M.N.G., 147 S.W.3d 521, 540 n.9 (Tex. App.—Fort Worth 2004, pet. denied) (op.

on reh’g).




                                         24
                                IV. CONCLUSION

      Having overruled Frank’s fourth, fifth, and portions of all six of his issues

which are dispositive, we affirm the trial court’s order terminating his parental

rights to S.S.A.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DAUPHINOT, J., concurs without opinion.

DELIVERED: July 19, 2012




                                       25
