Affirmed and Memorandum Opinion filed February 28, 2012.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-11-00652-CV


                        IN THE INTEREST OF J.J., A CHILD



                       On Appeal from the 315th District Court
                                Harris County, Texas
                         Trial Court Cause No. 2009-05798J


                   MEMORANDUM OPINION
       In this appeal from the termination of his parental rights, Jason M. asserts that the
trial court abused its discretion in finding his appeal to be frivolous. He further contends
that the evidence is legally and factually sufficient to support the trial court’s judgment
terminating his parental rights. We affirm.

                                    BACKGROUND

       J.J. was born on May 28, 2007. In June 2009, the Texas Department of Family &
Protective Services (―DFPS‖) received a neglectful supervision report regarding J.J.
DFPS worker Debra Wilkinson made contact with J.J.’s mother, Janell J. Wilkinson
interviewed Janell, who voluntarily provided a swab drug test. At the visit, J.J. was clean
and appeared to be well cared-for; Janell’s home was clean, had food, and appropriate
toys for J.J. In July 2009, the DFPS received a positive result from Janell’s drug test.
Wilkinson contacted Janell, who explained the test results by claiming that she had taken
diet pills and Sudafed to relieve congestion.

       In early August, the DFPS received another report alleging physical neglect and
neglectful supervision of J.J. The caller believed that Janell was using drugs and that J.J.
was eating cat food and cat feces and was throwing up. Wilkinson informed Janell that
she needed to take J.J. into custody because of the positive drug test and the reports of
neglectful supervision. Janell voluntarily placed J.J. with a friend, but later threatened
her friend’s life if she did not return J.J. to her. The friend contacted the DFPS, and J.J.
was taken into DFPS custody and placed in a foster home. On August 10, 2009, the
DFPS filed a termination suit, seeking to terminate the parental rights of J.J.’s mother and
his alleged father, Jason.

       Jason was unaware of his alleged parental status until he was served with citation
in the termination suit in June 2010. At that time, he was incarcerated.1 Jason answered
the suit pro se on June 25, 2010, denying paternity and requesting that he retain his
parental rights should he be found to be J.J.’s father. The record reflects that, subsequent
to the DFPS’s filing its termination petition,2 Jason was convicted of the following
offenses and sentenced to the following terms:


       1
           DFPS personnel had difficulty locating Jason because of his frequent jail status.
       2
           Jason had several convictions prior to J.J.’s birth and admitted during the termination
proceeding that he had served jail time in South Dakota for forgery before moving to the
Houston/Galveston area. The record contains the following earlier Harris County convictions and
sentences:
   Misdemeanor Violation of Protective Order, Family Violence, Sentenced to 75 days in Harris County
   Jail on October 5, 2006;
   Misdemeanor Failure to Identify to a Peace Officer, Sentenced to 75 days in Harris County Jail on
   October 5, 2006 (concurrent with protective order conviction of same date);
   State Jail Felony Possession of Methamphetamine Less than 1 Gram, Sentenced to 180 days in State
   Jail on June 13, 2008; and
   State Jail Felony Possession of Controlled Substance Less than 1 Gram, Sentenced to 120 days in
   Harris County Jail on March 2, 2009.

                                                      2
   State Jail Felony Possession of Methamphetamine Less than 1 Gram, Sentenced to
   180 days in State Jail on September 3, 2009;
   State Jail Felony Attempted Assault of a Family Member – 2nd Offender, Sentenced
   to 180 days in State Jail on September 3, 2009 (concurrent with methamphetamine
   possession conviction of same date);
   State Jail Felony Theft under $1500 – 3rd Offender, Sentenced to 6 months in State
   Jail on July 14, 2010;
   State Jail Felony Possession of Methamphetamine Less Than 1 Gram, Sentenced to 6
   months in State Jail on July 14, 2010 (concurrent with theft conviction of same date);
   Misdemeanor Unlawfully Carrying a Weapon, Sentenced to 30 days in Harris County
   Jail on November 9, 2010; and
   State Jail Felony Forgery, Sentenced to 2 Years in the Institutional Division of the
   Texas Department of Criminal Justice On January 6, 2011.

Jason pleaded guilty to each of these offenses.

       A two-day bench trial on the termination proceeding began on June 1, 2011, and
concluded on July 1, 2011. Jason was present with his appointed counsel each day of
trial; Janell was not present but was represented by counsel. On the first day of trial,
Jason requested a continuance to allow the DFPS to conduct a home study on a family
friend of Jason’s, Sylvia Austin. According to Jason’s counsel, Ms. Austin was present at
court and had recently told Jason’s counsel that she and her husband would like to have
J.J. placed with them. The trial court denied the motion for continuance, but stated it was
―open to the possibility‖ of a home study of the Austins.

       Jason testified that he has two older daughters, with whom he was not close, from
previous relationships. Jason could not remember how old his younger daughter was,
first testifying that she was eleven, then later testifying that she was eighteen. He stated
that the last time he saw his younger daughter was ―right before [he] went into prison in
South Dakota,‖ where he ―did three years . . . for a forgery case. . . . in ’97.‖

       Jason explained that, sometime in 2006, he and Janell had a ―one night stand‖ after
he discovered that his wife had been having an affair. He testified that he did not learn



                                               3
that Janell had named him as the possible father of J.J. until September 2010.3 He
explained that he had met J.J. as a baby when he had stayed with Janell for about two
weeks while he was looking for his wife. He testified that he did not know that J.J. was
his son at that time. He claimed to have taken care of J.J. while at Janell’s residence.
According to Jason, he left Janell’s residence after she punched him in the face three
times when he told her he was going to reunite with his wife.

       Jason testified that he met Janell and started selling drugs before J.J. was
conceived. He said that Janell was an escort and he was a driver for the escort company.
According to Jason, Janell introduced him to one of her drug suppliers, and he started
selling drugs on the side to make extra money. Jason stated that Janell used drugs but he
did not; he only sold them. Jason testified regarding his lengthy criminal history and
explained that he had been ―stuck on stupid‖ for quite some time, had nothing to live for,
and therefore kept reoffending and going back to jail. Jason admitted that he had been
incarcerated for most of J.J.’s life, but stated, ―If I had known he was my son, I would’ve
never done it. I would have been there for him.‖

       He acknowledged that he knew it was possible J.J. was his son in September of
20104 and that he committed several offenses after that time. He blamed the DFPS’s
―negligence‖ in establishing his paternity for his continued criminal activity:

       Q. But the question is you said if you had known you were a father to J.J.
       you would not have continued to engage in criminal activity?
       A. That’s true.
       Q. But after you found out you might be a father that wasn’t good enough
       to make you stop doing criminal acts?
       A. I waited on you-all [DFPS]. You never contacted me, and I didn’t
       know.



       3
           However, as noted above, the record contains a pro se answer to the termination proceeding
filed by Jason in June 2010.
       4
           Again, the record reflects that Jason knew he was the alleged father of J.J. in June 2010.

                                                      4
Jason further testified about his forgery conviction, for which he was serving time in the
Texas Department of Criminal Justice at the time of the termination proceedings. He
stated that his ―shore leave‖ was December 4, 2011, but that he could get parole anytime
between ―now until then.‖ But based on the two-year sentence imposed in January 2011,
Jason’s release date for this offense would be January 2013.

       Jason also testified that he never received the service plan that DFPS caseworker
Andrea Blum sent to him while he was incarcerated, even though the record contains a
copy of an acknowledgement sheet with what appears to be his signature. Jason stated
that he had not signed the acknowledgement.

       DFPS caseworker Blum testified regarding J.J.’s current placement.                  She
explained that when he first came into care, he was developmentally delayed. According
to Blum, in his current foster family, J.J. has caught up developmentally and all of his
needs are being met. She described his placement as ―a very stable, loving home, and
he’s receiving absolutely everything he could ever need there.‖ Blum testified that the
DFPS wanted to terminate Jason’s and Janell’s parental rights so J.J. could be adopted by
his foster family. When asked why she believed that termination of parental rights would
be in J.J.’s best interests, she responded, ―Neither of the parents have [sic] demonstrated
the ability to be able to parent [J.J.]. Neither have [sic] completed the task[s] asked of
them. Neither has shown that they can provide a stable living environment to care for
[J.J.].‖ She testified that J.J. was receiving all of those things in his current placement.

       Blum stated that she believed Jason had received a copy of the family service plan.
She explained that the only completed item was paternity testing. She acknowledged the
unlikelihood of Jason’s ability to perform many of the assigned tasks while in prison.
She further stated that she believed Jason’s criminal conduct has (a) endangered J.J.’s
physical and emotional well-being, (b) prevented Jason from being able to provide for
J.J., and (c) made Jason unavailable emotionally for J.J. Blum stated her belief that
Jason’s parental rights should be terminated so that J.J. could attain permanency in his
foster family by being adopted.

                                               5
        On cross-examination, Blum acknowledged that Jason was not served with the
termination suit until June 2010, which was approximately ten months after it had been
filed, because DFPS workers had been unable to locate him. She stated that she sent him
the family service plan in August 2010 and that she was aware that Jason had denied
paternity. She testified that the trial court ordered a paternity test in October 2010 and
that she mailed a ―DNA letter‖ to Jason in December 2010. According to Blum, Jason
had a DNA sample taken in March of 2011 and was adjudicated J.J.’s father on April 25,
2011. She acknowledged that Jason had only known for a little over two months that he
was J.J.’s father. She further acknowledged that the DFPS’s goal from the beginning of
its interaction with J.J. was ―unrelated adoption.‖

        Blum additionally testified that Jason never contacted her when he was released
from incarceration, never provided her with any names of family members or friends he
wanted the DFPS to consider as placements for J.J., and never contacted her to find out
whether he really was J.J.’s father. She stated that J.J. is very happy in his current
placement, and his foster family, who wants to adopt him, was happy having J.J. in the
home. Finally, Blum acknowledged that in other cases in which men are awaiting
paternity determinations, they are given service plans and instructed to start services. She
agreed that some of these men start their services because they want to show their ability
to be a good parent, but acknowledged that some do not. She expressed her belief that
men who start services immediately show a strong desire to be a parent. She further
agreed that Jason never wrote a letter asking about J.J., his needs, or his date of birth.5

        On July 15, 2011, the trial court signed a decree terminating Janell’s parental
rights because it was in J.J.’s best interests and termination was appropriate under
subsections (D), (E), (F), (N), and (O) of section 161.001(1) of the Texas Family Code.
The trial court further decreed that termination of Jason’s parental rights was in J.J.’s best
interests and that termination was appropriate under subsections (D), (E), (O), and (Q) of

        5
          Jason testified on the first day of trial that he did not know J.J.’s date of birth, although the
termination suit sent to him included J.J.’s birth date.

                                                    6
section 161.001(1). Janell did not appeal the termination of her parental rights. Jason
filed a timely statement of points on which he intended to appeal the trial court’s
termination decree. Although the trial court found his appeal frivolous, it declared him
indigent and ordered a free record and appointed appellate counsel to represent him on
appeal. This appeal timely followed.

                                             ANALYSIS

A.      Frivolousness Finding

        In his first issue, Jason asserts that the trail court abused its discretion in
determining that his appeal was frivolous.6 We review a trial court’s determination that
an appeal is frivolous under an abuse of discretion standard. Lumpkin v. Dep’t of Family
& Prot. Servs., 260 S.W.3d 524, 526 (Tex. App.—Houston [1st Dist.] 2008, no pet.). An
appeal is frivolous when it lacks an arguable basis in law or in fact. In re J.J.C., 302
S.W.3d 436, 444 (Tex. App.—Houston [14th Dist.] 2099, no pet.). In determining
whether an appeal is frivolous, the trial judge may consider whether the appellant has
presented a substantial question for appellate review. Id.

        Here, we conclude that the trial court’s frivolousness determination was in error.
As noted above, the trial court terminated Jason’s rights based on subsections (D) and
(E), among others, of Texas Family Code section 161.001. These subsections provide
that a court may order termination of the parent-child relationship if it finds by clear and
convincing evidence that the parent has ―knowingly placed or knowingly allowed the
child to remain in conditions or surroundings which endanger the physical or emotional
well-being of the child‖ or ―engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical or emotional well-being
of the child.‖ Tex. Fam. Code Ann. § 161.001(1)(D), (E). Because Jason was unaware

        6
           Here, the court found Jason’s proposed appeal frivolous based on his statement of points
detailing his challenges to the termination of his parental rights. See Act of May 22, 2001, 77th Leg., ch.
1090, § 9, 2001 Tex. Gen. Laws 2395, 2398 (formerly codified at Tex. Fam. Code Ann. § 263.405(d)).
This procedure has since been repealed. See Act of May 5, 2011, 82nd Leg., R.S. ch. 75, § 5, 2011 Tex.
Sess. Law Serv. 348, 349.

                                                    7
that he was J.J.’s father and had no participation in J.J.’s life, he could not have
―knowingly‖ engaged in conduct related to J.J. under subsections (D) or (E).
Accordingly, there is no evidence to support the trial court’s findings that termination
was warranted under these subsections; Jason has therefore presented a substantial
question for appellate review. We sustain Jason’s first issue. We thus turn to the
substantive merits of Jason’s appeal.

B.     Standard of Review

       Parental rights can be terminated only upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section 161.001(1) of the
Texas Family Code and (2) termination is in the best interest of the child. Tex. Fam.
Code Ann. § 161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Clear and
convincing evidence is ―proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.‖ Tex. Fam.
Code Ann. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).

       In conducting a legal-sufficiency review in a parental termination case, a
reviewing court looks at all the evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have formed a firm belief or conviction
that its finding was true.        In re J.P.B., 180 S.W.3d 570, 573–74 (Tex. 2005).      In
reviewing termination findings for factual sufficiency, courts must give due deference to
the fact-finder’s resolution of factual questions. In re C.H., 89 S.W.3d 17, 27 (Tex.
2002). The court then determines whether the evidence is such that a fact-finder could
have reasonably formed a firm belief or conviction about the truth of the allegations
against the parents. Id. at 25.

C.     Termination Under Subsection 161.001(1)(Q)

       Jason asserts in issues two through five that the evidence is legally and factually
insufficient to support termination under subsections 161.001(1)(D), (E), (O), and (Q).




                                               8
Because only one basis is required to support termination under subsection 161.001,7 we
address Jason’s sufficiency challenge regarding termination under (Q).                   Subsection
161.001(1)(Q) provides that a trial court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence that the parent has
―knowingly engaged in criminal conduct that has resulted in the parent’s . . . conviction
of an offense; and . . . confinement or imprisonment and inability to care for the child for
not less than two years from the date of filing of the petition.‖ Tex. Fam. Code Ann. §
161.001(1)(Q). This subsection permits the DPFS to ―act in anticipation of a parent’s
abandonment of the child‖; ―if the parent is convicted and sentenced to serve at least two
years and will be unable to provide for his or her child during that time the [DFPS] may
use subsection Q to ensure that the child will not be neglected.‖ In re A.V., 113 S.W.3d
355, 360–61 (Tex. 2003). As noted above, this termination proceeding was filed on
August 10, 2009.

       As is relevant here, on January 2, 2011, Jason committed the felony offense of
forgery of a commercial instrument. He pleaded guilty to this offense on January 6, 2011
and was sentenced to two years in the Institutional Division of the Texas Department of
Criminal Justice. This is the offense for which Jason was incarcerated during the
termination proceedings.       Viewing this evidence in the light most favorable to the
finding, we conclude that the trial court reasonably could have formed a firm conviction
or belief that Jason would be unable to care for J.J. due to his two-year sentence for
forgery under subsection Q. In re J.P.B., 180 S.W.3d at 573–74.

       Jason testified that his ―shore leave‖ for this offense was December 4, 2011.
Nothing in our record indicates what Jason meant by ―shore leave,‖ but presumably he
meant he would be paroled by that date. Evidence of the availability of parole is relevant
to determine whether a parent will be released within two years. In re H.R.M., 209
S.W.3d 105, 108–09 (Tex. 2006).              ―Mere introduction of parole-related evidence,
       7
          See, e.g., In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (―Only one predicate finding under
section 161.001(1) is necessary to support a judgment of termination when there is also a finding that
termination is in the child’s best interest.‖).

                                                  9
however, does not prevent a fact-finder from forming a firm conviction or belief that the
parent will remain incarcerated for at least two years.‖ Id. at 109. Accordingly, the trial
court, as the trier of fact, was entitled to disbelieve Jason, especially in light of Jason’s
lengthy criminal history. See id. Accordingly, the evidence is both legally and factually
sufficient to support termination of Jason’s parental rights under subsection Q.8 We
overrule Jason’s second through fifth issues.

D.     Best Interest of J.J.

       In issue six, Jason challenges the sufficiency of the evidence underlying the trial
court’s best-interest finding. The determination of a child’s best interest does not require
proof of any unique set of factors, and it does not limit proof to any specific factors. See
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). In reviewing the sufficiency of
the evidence to support a best-interest finding, courts may consider (1) the desires of the
child, (2) the present and future physical and emotional needs of the child, (3) the present
and future emotional and physical danger to the child, (4) the parental abilities of the
persons seeking custody in promoting the best interest of the child, (5) the programs
available to assist these individuals to promote the best interest of the child, (6) the plans
for the child by the individuals or agency seeking custody, (7) the stability of the home or
proposed placement, (8) acts or omissions of the parent which may indicate the existing
parent-child relationship is not appropriate, and (9) any excuse for the parent’s acts or
omissions. Holley, 544 S.W.2d at 371–72.

       Considering the Holley factors, the undisputed evidence shows that Jason has been
almost completely absent from J.J.’s life. J.J. has been growing up since 2007 with no
conscious knowledge of Jason.          During the short course of J.J.’s life, Jason has
maintained a pattern of committing criminal offenses and serving time in jail. Jason’s



       8
          Even if we consider the date that the termination proceeding was received by Jason—June
2010—rather than the date the proceeding was filed—August 2009—Jason’s two-year term of
incarceration began after that date in January 2011.

                                               10
testimony regarding his interaction with his two other children also indicates a pattern of
absence in his children’s life. He also was imprisoned for several years in another state.

       Moreover, Jason was convicted of crimes involving violence against family
members. He assaulted his wife and violated a protective order obtained by her. Jason’s
consistent pattern of criminal behavior both before and after he discovered he could be
J.J.’s father, coupled with a history of family violence, supports the trial court’s finding
that termination of Jason’s parental rights would be in the best interest of J.J. See In re
S.M.L., 171 S.W.3d 472, 481 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (stating
that appellant’s incarceration and pattern of criminal and violent conduct make it likely
that he will face incarceration again in the future).

       J.J. is a toddler who has bonded with his foster family. They can provide a stable
home with love and security. They want to adopt him. Jason has not bonded with J.J.
Although Jason expressed plans to get a job and find a home once he was released from
prison, these plans were nebulous and changed from the first day of the proceeding (when
Jason testified he would work with the Austins doing construction) to the second day of
the proceeding (when Jason testified that he would work as a pipefitter with a person
whom he had met while incarcerated or at a plant where he alleged he had worked
before). He simply had no definite plans for caring for J.J. upon his release. See id.

       After reviewing this evidence, we conclude that the trial court’s decision to
terminate Jason’s parental rights is in J.J.’s best interest. This determination is supported
by clear and convincing evidence that is both legally and factually sufficient.          We
overrule Jason’s sixth issue.

                                      CONCLUSION

       Having concluded that Jason’s appeal is not frivolous, we sustain his first issue.
However, we have determined that legally and factually sufficient evidence support
termination of Jason’s parental rights due to his conviction and sentence to more than two
years’ confinement since the filing of the termination proceeding. Further, there is


                                              11
legally and factually sufficient evidence to support the trial court’s determination that
termination of Jason’s parental rights is in the best interest of J.J. We therefore affirm the
trial court’s judgment terminating Jason’s parental rights.




                                           /s/    Adele Hedges
                                                  Chief Justice



Panel consists of Chief Justice Hedges and Justices Jamison and McCally.




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