                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-041-CV


IN THE INTEREST OF K.W., A CHILD


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

           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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

                         MEMORANDUM OPINION 1

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

                                 I. Introduction

      Appellant S.H., the alleged biological father of K.W., appeals the trial

court’s order terminating the parent-child relationship between himself and K.W.

In four issues, Appellant challenges the legal and factual sufficiency of the

evidence regarding the court’s findings of fact. We will affirm.




      1
           See Tex. R. App. P. 47.4.
                       II. Factual and Procedural History

      K.W. was born to J.W. (“Mother”) on March 5, 2008. Mother and K.W.

tested positive for methamphetamine on the day of birth. On March 10, 2008,

the Texas Department of Family and Protective Services (“the Department”)

filed a Petition for Protection of a Child, for Conservatorship, and for

Termination in a Suit Affecting the Parent/Child Relationship. 2 The trial court

held a show cause hearing on March 14, 2008, and a two-day final hearing on

the Department’s petition beginning January 26, 2009. 3

      The trial court terminated Appellant’s and Mother’s parental rights on

February 6, 2009. Because Mother has not appealed, we summarize only those

facts pertinent to the termination of Appellant’s parental rights.

      A. Appellant’s Criminal History

      Appellant served approximately thirty-six months in jail over the last

decade on eight convictions. At the age of 22, Appellant received two years’

deferred adjudication for possession of methamphetamine, less than one gram.




      2
         The Department interviewed Mother on Friday, March 7, 2008, and
filed the petition the following Monday.
      3
        Mother did not attend the final hearing. Her counsel announced “not
ready” to proceed and requested a continuance because she claimed she did
not receive proper notice of the January 26, 2009 hearing. The trial court
denied Mother’s request.

                                        2
Appellant then served ninety days in jail after the court revoked his probation

on January 18, 2000, for assaulting his daughter’s mother. 4

      On December 19, 2001, Appellant pleaded guilty to two counts of

possession of methamphetamine and received two concurrent two-year jail

sentences.   In November 2003, Appellant received a sentence of one year

imprisonment for forgery. In July 2007, a court sentenced Appellant to 180

days’ imprisonment for possession of methamphetamine. 5 On September 25,

2008, a court sentenced Appellant to four years’ imprisonment for unlawfully

possessing a firearm, 6 and placed him on deferred adjudication probation for ten

years with a $1,000 fine for the separate offense of intent to deliver between

one and four grams of methamphetamine.

      B. Appellant’s Relationship with Mother and His Claim of Paternity

      Appellant and Mother were friends who used methamphetamine together.

Appellant testified he learned he might be K.W.’s father when Mother visited


      4
         Appellant testified his daughter was born prior to the assault in 2001.
But at the January 2009 parental termination hearing, Appellant was unable to
recall his daughter’s birthday, believed she was eight years of age, and stated
he had not seen her in several years.
      5
       Appellant served this 180-day sentence from July 23, 2007, through
August 2, 2007, and from November 7, 2007, through April 25, 2008. Thus,
Appellant was incarcerated at the time of K.W.’s birth.
      6
       Appellant began serving a four-year sentence for the offense of
unlawful possession of a firearm on September 2, 2008.

                                       3
him in jail and revealed she was two months’ pregnant. Two days after K.W.’s

birth, Mother told a Child Protective Services (CPS) investigator that Appellant

may be the father and provided no indication of other potential fathers.

      Appellant does not dispute that he did not file an admission of paternity

or a counterclaim for paternity in this case. However, Appellant did file a timely

answer generally denying the Department’s claims.            At trial, Appellant

acknowledged he is K.W.’s biological father and testified, “Once I had seen the

pictures of [K.W.], I thought that we were—that it was very little chance that

he was not mine, but I don’t have a problem with taking a DNA test.”

      C. The Department’s Initial Actions

      The Department received notice on March 6, 2008, that Mother tested

positive for methamphetamine at K.W.’s birth. The next day, CPS Investigator

Teresa Shipley visited Mother in the hospital. During Shipley’s visit, Mother

was uncooperative, claiming that her attorney advised her “not to answer any

more questions nor sign any more papers” and denying drug use or having any

history with CPS. 7 Shipley did learn that Mother’s mother had recently moved

to Louisiana and that Mother was living with some of Appellant’s family, but




      7
       Mother gave birth to a child who tested positive for drugs in October
2005, resulting in the removal of Mother’s two children and voluntary
placement of the children with Mother’s mother.

                                        4
Mother did not provide a local address.      In response to Shipley’s inquiries,

Mother provided Appellant’s name as K.W.’s potential father, stated Appellant

was in the Tarrant County jail, and provided the names of Appellant’s mother

and sister.   Mother did not provide any contact information for these

individuals, nor did she identify other family members as potential placements

for K.W.

      Shipley testified she was concerned for K.W.’s safety if K.W. was placed

with Mother upon being released from the hospital. She therefore obtained a

court order for K.W.’s emergency removal from Mother.            The state took

custody of K.W. on March 7, 2008, and placed K.W. with a foster home.

      Regarding the Department’s communication with Appellant during this

time period, Shipley testified she was uncertain whether she sent him a letter

and could not recall if she had gone to the jail to speak with him. Shipley

agreed, however, that if potential placement options are identified by the father,

they are considered by CPS.      Shipley also admitted she did not meet with

Appellant prior to her signing the affidavit requesting emergency relief. Shipley

explained that Mother never definitively said that Appellant was the father, nor

did Mother identify any of Appellant’s family members as potential placements

for K.W.




                                        5
      D. The Effort to Place K.W. with Family

      Shortly after the March 14, 2008 show cause hearing, CPS conducted

a home study on Judy Golden, a friend of Appellant’s mother. The home study

tentatively recommended placing K.W. with Golden, but Golden declined to

submit to a drug test. Mother identified no other potential placements for K.W.

      Appellant’s sister accompanied Mother on her first visit with K.W. under

Mother’s service plan. During the visit, CPS caseworker Whitney Lagadinos

spoke with Appellant’s sister and obtained her contact information, but

Lagadinos determined Appellant’s sister was not a possible placement for K.W.

because she was living with “somebody who had a questionable criminal

history.”

      At Appellant’s request, 8 Lagadinos contacted Appellant’s grandmother,

who declined a home study because of her age and health problems.

      E. Appellant’s Service Plan and Efforts to Keep K.W.

      After being released from jail on bond in late April 2008, Appellant visited

with K.W. on several occasions. He met Lagadinos on May 6, 2008, while

attending a parent-child visit with Mother.     During this meeting, Lagadinos

reviewed Appellant’s service plan with him. It included a drug and alcohol



      8
       Appellant placed this request on May 6, 2008, the first time he met
K.W. and Lagadinos.

                                        6
assessment, a psychological evaluation, parenting classes, drug screenings, and

stable housing and employment evaluations.        Lagadinos testified Appellant

indicated he understood the service plan’s requirements and was willing to

complete them—although he acknowledged that his ability to do so would

require completion before he was sentenced and returned to jail. Appellant

failed to complete any of the services in his plan before he returned to jail in

September 2008.

      Appellant supported placement of K.W. with Mother. In early January

2009, however, he learned from his family that Mother could not be located

and had stopped visiting K.W. 9 Appellant then asked his sister to “take steps

to [do] whatever it took to get [his] baby.” Appellant’s sister knew her former

live-in boyfriend’s criminal history—a child endangerment charge involving

driving and drugs—previously disqualified her from being a candidate for

placement. 10   Approximately one week before the January 26, 2009

termination hearing, Appellant’s sister rented her own apartment and notified

CPS that she would like to be reconsidered for placement.


      9
       Mother tested positive for methamphetamine in December 2008 and
broke off contact with CPS at that time.
      10
         At the hearing, Appellant’s sister testified that after breaking up with
her boyfriend in August 2008, she temporarily moved in with her parents. She
also testified that the former boyfriend continues to visit their daughter once or
twice a week for a couple of hours each time.

                                        7
      F. The Trial Court’s Decision

      Following a bench trial, the trial court found (1) that Appellant failed to

assert paternity in accordance with family code section 161.002; (2) that

Appellant endangered K.W. by (a) knowingly placing or knowingly allowing

K.W. to remain in conditions that endangered his well-being, and (b) engaging

in conduct or knowingly placing K.W. with persons who engaged in conduct

that endangered his well-being; (3) that Appellant constructively abandoned

K.W.; and (4) that termination of the parent-child relationship was in K.W.’s

best interest. Tex. Fam. Code Ann. § 161.002(b)(1) (Vernon 2008).

                                  III. Discussion

      A. Appellant Admitted Paternity

      In his first issue, Appellant argues that the trial court erred by finding that

he failed to admit paternity under chapter 160 of the Texas Family Code. We

agree. 11

      Subsection 161.002(b)(1) of the family code allows the Department to

summarily terminate the rights of an alleged biological father who does not

assert his paternity. Tex. Fam. Code Ann. § 161.002(b)(1); Phillips v. Tex.

Dep’t of Protective & Regulatory Servs., 25 S.W.3d 348, 357 (Tex.



      11
         In its brief, the Department acknowledges, “The trial court’s paternity
finding cannot be defended under controlling precedent.”

                                         8
App.—Austin 2000, no pet.). Section 161.002(b) provides that “[t]he rights

of the alleged father may be terminated 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.”            Tex. Fam. Code Ann.

§ 161.002(b). However, if the alleged father files an admission of paternity or

otherwise claims paternity, the alleged father prevents summary termination of

his rights, and the Department must instead meet the high burden of proof

found in section 161.001. Tex. Fam. Code Ann. § 161.002(a); Phillips, 25

S.W.3d at 357.

      The trial court’s judgment recites that Appellant is the alleged biological

father of K.W. The judgment also declares Appellant’s alleged parental rights

are terminated under section 161.002(b)(1) because, after being served with

citation, he “did not respond [to this termination suit] by filing an admission of

paternity or by filing a counterclaim for paternity or for voluntary paternity to

be adjudicated under chapter 160 of the Texas Family Code . . . .”

      This court has held that there are no formalities that must be observed for

an admission of paternity to be effective. See, e.g., In re V.S.R.K., No. 02-08-

047-CV, 2009 WL 736751, at *4 (Tex. App.—Fort Worth Mar. 19, 2009, no

pet.); In re K.W., 138 S.W.3d 420, 430 (Tex. App.—Fort Worth 2004, pet.

denied) (holding letters written by the alleged father to the trial court stating he

                                         9
was the child’s father were sufficient, alone, to be an admission of paternity);

see also Toliver v. Tex. Dep't of Family & Protective Servs., 217 S.W.3d 85,

105 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that alleged

father’s appearance at termination hearing and admission that he was the

child’s father were sufficient to prevent the summary termination of his parental

rights); Estes v. Dallas County Child Welfare Unit of Tex. Dep't of Human

Servs., 773 S.W.2d 800, 802 (Tex. App.—Dallas 1989, writ denied) (citing

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (holding that a pro se answer

filed by alleged father, in which he claims to be an indigent parent and requests

the appointment of an attorney, constitutes an admission of paternity)).

      In this case, Appellant did not file a counterclaim for paternity or for

voluntary paternity under chapter 160 of the family code. However, he filed a

timely answer, claimed to be an indigent parent, requested the appointment of

counsel, and made numerous admissions of paternity during trial:

      Attorney: At any point in time, have you questioned whether or
            not [K.W.] was your child?

      Appellant: No.

            ....

      Attorney:    And are you acknowledging that you’re [K.W.’s] father?

      Appellant: Yes, I am.



                                       10
      Because we are required to strictly construe involuntary termination

statutes in favor of the parent, we conclude that Appellant admitted his

paternity of K.W. for purposes of section 161.002(b)(1) by timely filing a

general denial and admitting paternity during his trial testimony.      See In re

E.M.N., 221 S.W.3d 815, 820 (Tex. App.—Fort Worth 2007, no pet.); see also

Holick, 685 S.W.2d at 18, 20–21. Therefore, the Department was not entitled

to summary termination of Appellant's parental rights under family code section

161.002(b)(1), and we will review the trial court's findings supporting

termination under section 161.001.

      B. Grounds for Termination

            1. Standard of Review

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

management” of his or her 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). “While parental rights are of constitutional magnitude, they are

not absolute. 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.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

                                          11
      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) (Vernon Supp.

2009); Holick, 685 S.W.2d at 20 (Tex. 1985).             Accordingly, we strictly

scrutinize termination proceedings and strictly construe involuntary termination

statutes in favor of the parent. Id. 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 at least one

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

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

Supp. 2009); 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 trier of fact. 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, 161.206(a). Evidence is clear

and convincing if it “will produce in the mind of the trier of fact a firm belief or

conviction as to the truth of the allegations sought to be established.” Id. §

                                        12
101.007 (Vernon 2006).       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 of parental rights).

      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

the appearance and demeanor of the witnesses, for that is the factfinder’s

                                       13
province.   Id. at 573–74.     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.

      In reviewing the evidence for factual sufficiency in parental termination

cases, 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 relevant conduct

provisions of section 161.001(1) and that the termination of the parent-child

relationship would be in the best interest of the child. In re C.H., 89 S.W.3d

at 28. 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. In re H.R.M., 209

S.W.3d at 108.

            2. Legally and Factually Sufficient Evidence of Endangerment

      In his second issue, Appellant argues the evidence is legally and factually

insufficient to support the trial court’s endangering-conduct and endangering-

environment findings.     See Tex. Fam. Code. Ann. § 161.001(1)(D), (E).

Endangerment, as that term is used in the statute, means to expose to loss or

                                        14
injury, to jeopardize. Boyd, 727 S.W.2d at 533; see also In re M.C., 917

S.W.2d 268, 269 (Tex. 1996); In re J.T.G., 121 S.W.3d 117, 125 (Tex.

App.—Fort Worth 2003, no pet.).       Based on this definition and the record

before us, we conclude that the evidence is legally and factually sufficient to

support the trial court’s endangerment findings. See Tex. Fam. Code. Ann.

§ 161.001(1)(D), (E).

      To prove endangerment under subsection (D), the Department had to

prove that Appellant (1) knowingly (2) placed or allowed K.W. to remain (3) in

conditions or surroundings that endangered his physical or emotional well-being.

See id. § 161.001(1)(D). Under section 161.001(1)(E), the relevant inquiry is

whether evidence exists that the endangerment of K.W.’s physical or emotional

well-being was the direct result of Appellant’s conduct, including acts,

omissions, or failures to act. Id. § 161.001(1)(E); In re J.T.G., 121 S.W.3d at

125. Additionally, termination under subsection (E) must be based on more

than a single act or omission; a voluntary, deliberate, and conscious course of

conduct by the parent is required. In re J.T.G., 121 S.W.3d at 125; In re D.T.,

34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied). However, 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. The specific danger to the child’s well-being may be inferred

                                      15
from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re

R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied). To

determine whether termination based on endangerment is necessary, courts

may look to parental conduct occurring both before and after the child’s birth.

In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.).

         A factfinder may infer from past conduct endangering the well-being of

a child that similar conduct will recur if the child is returned to the parent. See

In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied),

disapproved on other grounds by In re J.F.C., 96 S.W.3d at 267 n.39, and In

re C.H., 89 S.W.3d at 26. A child is endangered when the environment creates

a potential for danger that the parent is aware of but disregards. See In re

S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no

pet.).

         Drug use and its effect on a parent’s life and his ability to parent may

establish an endangering course of conduct. In re R.W., 129 S.W.3d at 739

(citing Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81,

84 (Tex. App.—Dallas 1995, no writ)); In re J.T.G., 121 S.W.3d at 125.

Evidence of criminal conduct, convictions, and imprisonment prior to the birth

of a child will support a finding that a parent engaged in a course of conduct

that endangered the child’s well-being. In re J.T.G., 121 S.W.3d at 133.

                                        16
While imprisonment alone does not constitute a continuing course of conduct

that endangers the physical or emotional well-being of a child, it is a fact

properly considered on the issue of endangerment.        Boyd, 727 S.W.2d at

533–34; In re R.W., 129 S.W.3d at 743–44.

       The record contains substantial evidence of environmental endangerment

and course of conduct endangerment to K.W.’s physical or emotional well-

being.   Because the evidence concerning these two statutory grounds for

termination is interrelated, we consolidate our examination of that evidence.

In re M.C.T., 250 S.W.3d 161, 169 (Tex. App.—Fort Worth 2008, no pet.);

see In re J.T.G., 121 S.W.3d at 126.

       Appellant contends there is no evidence showing that Appellant

knowingly placed or allowed K.W. to remain in conditions or surroundings that

endangered K.W.’s physical or emotional well-being.       However, the record

demonstrates Appellant has a long history of illegal drug use—and admitted to

using methamphetamine with Mother.

       Four of Appellant’s eight criminal convictions relate to possession of

methamphetamine and Appellant is on deferred adjudication through September

2018     for   a   fifth   drug   offense—possession   with   intent   to   deliver

methamphetamine. Over the last decade, Appellant served a total of thirty-six

months in the Tarrant County jail and returned to the State’s custody on

                                         17
September 2, 2008, to serve a four-year term for unlawful possession of a

firearm. 12

       Appellant testified that he and Mother were friends, they had a

relationship before Appellant’s brief incarceration in July 2007, and they used

methamphetamine together—possibly while Mother was pregnant with K.W.:

              Q: Have you ever used methamphetamine with [Mother]?

              A: Yes, ma’am.

              Q: When, prior to your incarceration, when had been the last
                   time you had used methamphetamine with [Mother]?

              A: I can’t recall.

              Q: Would it have been during the time period between
                  August 2007 and when you went back into jail in
                  November [2007]? 13

              A: I guess. I can’t recall. It was a long time ago.

       Appellant knew two months into Mother’s pregnancy that she was

pregnant with his child.14 Appellant testified at trial that he was very concerned



       12
         Appellant testified that he received a one-year credit toward his four-
year sentence and could be released on parole to begin a rehabilitation program
as early as February 2009.
       13
        Mother was two months’ pregnant with K.W. in August 2007 and
five months’ pregnant in November 2007.
       14
        Mother told Appellant about her pregnancy during his incarceration
from July 23 through August 2, 2007.

                                        18
when he learned that Mother and K.W. tested positive for methamphetamine

at K.W.’s birth.   However, the record is devoid of evidence of Appellant’s

actions to ensure K.W.’s safety in Mother’s womb. 15       Moreover, Appellant

testified that, in his opinion, Mother did not need drug abuse treatment.

Appellant also supported Mother’s custody of K.W., instructing his family not

to interfere with Mother’s ability or potential to regain custody of K.W. 16

      We have carefully reviewed the entire record. Looking at the evidence in

the light most favorable to the finding and judgment, and assuming the trial

court resolved any disputed facts in favor of its finding if it could have

reasonably done so, we hold that the trial court could have reasonably formed

a firm belief or conviction that Appellant’s conduct endangered K.W. and that

Appellant knowingly allowed K.W. to remain in an endangering environment by

ignoring Mother’s drug use both before and after K.W.’s birth. See Tex. Fam.

Code Ann. § 161.001 (D), (E); In re J.F.C., 96 S.W.3d at 265–66; In re C.H.,

89 S.W.3d at 25; In re J.T.G., 121 S.W.3d at 124; see also In re T.J., No. 02-


      15
         See In re M.J.M.L., 31 S.W.3d 347, 351–52 (Tex. App.—San
Antonio 2000, pet. denied) (finding sufficient evidence of endangerment where
the father knew the pregnant mother was a drug abuser but failed to make
arrangements for the care of his soon-to-be-born child, choosing instead to
leave the child in the care of a drug-addicted mother).
      16
        The record does not indicate whether Appellant knew that CPS
removed two children from Mother in October 2005 because of Mother’s drug
abuse, or that those children were placed with their maternal grandmother.

                                       19
05-00353-CV, 2006 WL 820518 at *6 (Tex. App.—Fort Worth Mar. 30, 2006,

no pet.) (mem. op.) (holding that evidence was legally and factually sufficient

to support trial court’s findings on endangerment due to parent’s criminal

history and illegal drug use).    Therefore, we hold the evidence is legally

sufficient to support both of the trial court’s endangerment findings. Likewise,

giving due deference to the trial court as factfinder, we hold that the evidence

is also factually sufficient to support both of the trial court’s endangerment

findings. We overrule Appellant’s second issue.

      Accordingly, because the evidence at trial was legally and factually

sufficient to support the termination of Appellant’s parental rights under family

code sections 161.001(1)(D) and (E), we need not address Appellant’s third

issue—whether the trial court erred in finding Appellant constructively

abandoned K.W. See in re E.M.N., 221 S.W.3d at 821; see also Tex. R. App.

P. 47.1.

            3. Termination Is In K.W.’s Best Interest

      In his fourth issue, Appellant argues that the evidence is factually

insufficient to support the trial court’s finding that termination of his parental

rights is in K.W.’s best interest. See Tex. Fam. Code Ann. § 106.001(2).

While there is a strong presumption that keeping a child with a parent is in the

child’s best interest, the record shows the evidence is factually sufficient to

                                       20
support the trial court’s finding that termination of Appellant’s parental rights

is in K.W.’s best interest. See id.; In re R.R., 209 S.W.3d 112, 116 (Tex.

2006).

      Prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a)

(Vernon 2006). The following factors, among others, 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; (2) the
      frequency and nature of out-of-home placements; (3) whether there
      is a history of substance abuse by the child’s family or others who
      have access to the child’s home; (4) 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; (5) the willingness and ability of the
      child’s family to effect positive environmental and personal changes
      within a reasonable period of time; (6) and whether the child’s
      family demonstrates adequate parenting skills, including providing
      the child and other children under the family’s care with minimally
      adequate health and nutritional care; a safe physical home
      environment; and an understanding of the child’s needs and
      capabilities.

Id. § 263.307(b); In re M.R.J.M., 280 S.W.3d 494, 506 (Tex. App.—Fort

Worth 2009, no pet.).

      Other, nonexclusive factors that the trier of fact in a termination case

may use in determining the best interest of the child include: (1) the desires of



                                       21
the child; (2) the emotional and physical needs of the child now and in the

future; (3) the emotional and physical danger to the child now and in the future;

(4) the parental abilities of the individuals seeking custody; (5) the programs

available to assist these individuals to promote the best interest of the child; (6)

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

(7) the stability of the home or proposed placement; (8) the acts or omissions

of the parent which may indicate that the existing parent-child relationship is

not a proper one; and (9) any excuse for the acts or omissions of the parent.

Holley 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 while other factors not on the list may also be considered when

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

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

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

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

finding. Id.

      K.W. was almost eleven months old at the time of the termination hearing

and has never lived with Appellant. Appellant stated he was not sure when he

might be able to provide K.W. with a safe and stable home, but said he believed

he could do so nine months after he is released from his four-year jail

                                        22
sentence.17 Appellant testified that he could be paroled as early as February

2009. Appellant agreed that this timeframe would be contingent on him not

violating the law, the conditions of his parole, or the terms of his 10-year

deferred adjudication probation for possession with intent to distribute

methamphetamine.

      Regarding Appellant’s parenting abilities and willingness to seek out,

accept, and complete counseling services to assist him in promoting K.W.’s

best interest, Appellant admitted he did not sufficiently complete his service

plan during the four months before he returned to jail and said that he “just

didn’t have time to, or transportation or finances, for any of that.” Additionally,

CPS had no address for Appellant and none of the phone numbers provided by

Mother and Appellant worked. Indeed, Appellant had no contact with CPS

between the May 7 status hearing and July 3, 2008, and again between July

10, 2008, and November 2008, after Appellant’s return to jail.          Appellant

explained the lack of contact with CPS resulted because it “seem[ed] like I was

getting the runaround from whomever answered the phone there at the [CPS]

office when I would call . . . and then I got—I had stuff in storage and I was




      17
         Upon release from jail, Appellant must enroll in a rehabilitation center
for six months and then transition to an outpatient program for another three
months.

                                        23
just caught up in trying to get prepared to go back into custody for this four

years.”

      CPS set weekly visits with K.W. for Appellant.         According to CPS

records, Appellant visited K.W. two times, on May 6 and July 3, 2008, and did

not visit at all during the month of August. In contrast, Appellant testified he

visited K.W. “at least six or seven” times, including two visits with K.W. before

meeting the CPS caseworker for the first time on May 6, but conceded that he

did not attend the “last couple of visits.” 18 Appellant admitted his failure to

visit K.W. suggested he placed a higher priority on caring for his property than

on seeing his son:

      Q:    Did you believe that [not visiting weekly] was behavior that
            indicated or demonstrated your commitment to putting this
            child as a priority in your life?

      A:    I knew that I was going to have to go back into custody, and
            I just had the few limited things I had remaining in the world
            together preparing for me to come in and do this time.

      Q:    So it was more important for you to get your property in
            order rather than your son? Is that what you’re saying?

      A:    That’s not what I am saying. I’m saying that I was made
            aware by my lawyer that time was running out, period, and
            it doesn’t make me look good, but I guess that’s true, I
            guess.



      18
        Appellant also testified he attended “between seven and ten” visits
with K.W.

                                       24
      Appellant contends that K.W.’s best interests could be met by placing

K.W. with Appellant’s sister, and that his sister was willing and able to assume

parental duties during Appellant’s absence. 19    Reasonable efforts should be

made with respect to a child to be placed in foster care to preserve and reunify

families and to give preference to an adult relative over a non-related caregiver

in determining the placement of a child. In re C.C., No. 02-04-00206-CV,

2005 WL 1244672, at *6 (Tex. App.—Fort Worth May 26, 2005, no pet.)

(mem. op.) (citing 42 U.S.C.A. § 671(a)(15)(B), § 671(a)(19) (2003)).

However, Appellant provides no authority to suggest that there is either a

statutory or a common-law duty imposed on the Department to make such a

placement or to investigate such a placement before a party's parental rights

may be terminated. The determination of where the child will be placed is a

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

that placement will be with non-relatives. Id. at *7; Rogers v. Dep’t of Family

and Protective Servs, 175 S.W.3d 370, 379 (Tex. App.—Houston [1st Dist.]

2005, pet. dism’d w.o.j.).




      19
         During the hearing, a Department caseworker testified that, upon
termination of Appellant’s parental rights, CPS planned to consider Appellant’s
sister as a placement for K.W. or, alternatively, for K.W. to be adopted by the
current foster parents.

                                       25
      In considering the placement of K.W. as a factor to determine his best

interest, the evidence demonstrated that Appellant’s sister wanted K.W. placed

with her shortly after his birth, but knew at the time that her live-in boyfriend’s

criminal   history—a   child   endangerment     charge   involving   driving   and

drugs—would disqualify her from being a candidate for placement. Appellant’s

sister testified that she and her boyfriend broke up in August 2008, and that

she and their two-year-old daughter temporarily moved in with her parents until

one week prior to the termination hearing—when she rented her own apartment

and notified CPS she would like to be reconsidered for placement. Appellant’s

sister testified that her former boyfriend continues to visit their daughter once

or twice a week for a couple of hours each time. 20 Accordingly, the trial court

could have formed a firm conviction or belief that Appellant and his family were

unwilling to effect positive personal changes within a reasonable period of time,

were unable to demonstrate adequate parenting abilities, and were unable to

provide K.W. with a stable home environment. See Tex. Fam. Code Ann. §

263.307(a); Holley, 544 S.W.2d at 371–72; In re M.R.J.M., 280 S.W.3d at

506; Rogers, 175 S.W.3d at 379, In re C.C., 2005 WL 1244672 at *6.




      20
        Appellant’s sister testified that, if awarded custody of K.W., she
would follow a court order prohibiting any contact between K.W. and her
former boyfriend.

                                        26
      The record also reveals that from October 2008 through the January 26,

2009 hearing, Appellant’s sister and Appellant’s mother regularly visited

K.W.—approximately three or four times per month. Appellant’s sister testified

she believes K.W. has bonded with her during the weekly visits over the last

four months. However, a CPS caseworker testified that while K.W. “appears

to enjoy the visits” she did not “know that he’s necessarily bonded to the

relatives.” K.W’s foster mother testified that she believed K.W. is bonded with

his foster family, that his foster family wishes to adopt him, and that, “[K.W.]

is awesome . . . . we love [K.W.] more than anything in this world, and there

is nothing that we wouldn’t do for [K.W.].” Thus, in giving due deference to

the trial court as factfinder, the trial court could have found that termination of

Appellant’s parental rights was in K.W.’s best interest based in part on the

stability and strength of the relationship between K.W. and his foster family.

      Regarding K.W.’s physical needs, he was recently diagnosed with

asthma, must be given breathing treatments twice a day, and is “very

susceptible to smoke.” No one in K.W.’s foster home smokes. 21 Appellant’s

sister testified that when she goes to work, her two-year-old daughter is


      21
         To help K.W.’s breathing, the foster family found other homes for
their three dogs, replaced the carpet in their home, purchased humidifiers,
moved K.W. to a private daycare with fewer children, and required the lone
family member who smokes to “put something on over her clothes and [told]
her not to smoke prior to coming over to visit.”

                                        27
watched by her mother, who lives less than a mile away. Appellant’s sister

testified that her mother smokes half a pack of cigarettes per day, but steps

outside to smoke when she is watching the child. If K.W. were placed with

Appellant’s sister, her mother would watch K.W. and her daughter at

Appellant’s sister’s apartment. If granted custody of K.W., Appellant’s sister

testified that she would want Appellant involved in K.W.’s life as long as

Appellant was drug-free. Based on this record evidence, the trial court could

have formed a firm conviction or belief that terminating Appellant’s parental

rights was in K.W.’s best interest due to K.W.’s physical needs and the inability

of Appellant’s family to effect positive environmental changes. See Tex. Fam.

Code Ann. § 263.307(a); Holley, 544 S.W.2d at 371–72; In re M.R.J.M., 280

S.W.3d at 506.

      Giving due consideration to evidence that the factfinder could have

reasonably found to be clear and convincing, and based on our review of the

entire record, we hold the trial court could have reasonably formed a firm belief

or conviction that termination of Appellant’s parental rights would be in K.W.’s

best interest. See In re C.H., 89 S.W.3d at 28; see also In re K.W., No. 02-07-

00458-CV, 2008 WL 2639037, at *4 (Tex. App.—Fort Worth July 3, 2008,

no pet.) (mem. op.) (holding that clear and convincing evidence existed that

termination of father’s parental rights was in child’s best interest where, among

                                       28
other factors, father had a pattern of criminal conduct and drug abuse).

Accordingly, we hold that the evidence to support the trial court’s best interest

finding was factually sufficient, and we overrule Appellant’s fourth issue.

                                 IV. Conclusion

      Having overruled Appellant’s dispositive issues, 22 we affirm the trial

court’s judgment terminating his parental rights to K.W.




                                              ANNE GARDNER
                                              JUSTICE

PANEL: LIVINGSTON, GARDNER and MCCOY, JJ.

DELIVERED: January 14, 2010




      22
            See Tex. R. App. P. 47.1.

                                         29
