                            NUMBER 13-11-00683-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG




                     IN THE INTEREST OF K. S., A CHILD


                   On appeal from the 377th District Court
                         of Victoria County, Texas.


                            MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
             Memorandum Opinion by Chief Justice Valdez
      By three issues, appellant, William Foster, appeals from the trial court’s

termination of his parental rights to K.S., a child, arguing the evidence is legally and

factually insufficient to establish grounds for termination under Texas Family Code

section 161.001. See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2011). We affirm.

                                    I. BACKGROUND

      K.S. was born August 19, 2009. She was conceived shortly after her 18-year-old

mother left foster care and began residing with appellant, age 46, his paramour,
Yolanda Guajardo a/k/a Yolanda Foster (“Yolanda”), age unknown, and three of

appellant’s adult relatives.   According to appellant, K.S. was conceived during the

course of a one-month affair that secretly took place while K.S.’s mother was staying

with appellant, Yolanda, and appellant’s relatives.     Yolanda was suspicious, but

according to appellant, she did not know about the affair, which ended when K.S.’s

mother moved out of the home.

       A. Testimony of K.S.’s Mother

       K.S.’s mother testified to a different version of events.     According to her

testimony, appellant expressed interest in having sex with her when she was 17 years

old and still in foster care. There was no romantic affair between them, but on one

occasion, two weeks after her 18th birthday, when she was living with appellant and

Yolanda, appellant had sex with her. She testified that the sexual intercourse was

nonconsensual, that she told appellant “no,” and did not remember any additional

details because she was on medication for bipolar disorder and depression.          She

moved out of the home afterward and has been staying with friends and living on the

streets ever since.

       B. Circumstances of the Department’s Involvement

       After trying to care for the child on her own, K.S.’s mother placed K.S. with the

Montez family, long-time friends of her family.    After she placed the child with the

Montez family, K.S.’s mother vacillated between leaving the child and keeping the child

herself. She had no stable home and could not remain stable enough to care for K.S.

On May 21, 2010, appellee, the Texas Department of Family and Protective Services

(“Department”), stepped in and removed K.S. from her mother’s custody. K.S. has



                                           2
since remained with the Montez family. Her mother later agreed to voluntarily terminate

her parental rights to K.S.

       Although appellant knew of the pregnancy, he maintained he was not the child’s

father, had no contact with the child, made no attempt to contact the child or the child’s

mother, and did not support the child or the child’s mother.       After the Department

removed K.S. from her mother’s custody, appellant was formally notified of his

parentage of K.S. He demanded a genetic test to confirm the parentage of K.S. He

was confirmed as the biological father of K.S. and was notified by the Department of this

confirmation. At the same time, the Department developed a service plan designed to

develop appellant’s abilities as a parent and notified appellant of the terms of the

service plan. Appellant continued to live with Yolanda as his paramour and represented

her to be the caregiver for K.S. Yolanda also participated in the services.

       C. Testimony of Kristen Kestler

       Kristen Kestler, a former employee with the Department, testified regarding

Yolanda’s background and personal history as the wife and paramour of physically and

sexually abusive men. She testified regarding Yolanda’s husband, identified as “Mr.

Herrera,” who had three children with Yolanda and previously lived with her and the

children. Herrera beat Yolanda many times in the presence of her children. In one

such incident, witnessed by the children, he stabbed Yolanda in the back and cut her

several times, causing her to be hospitalized. Herrera was subsequently convicted and

imprisoned for aggravated assault.

       At some point thereafter, Yolanda became romantically involved with William

Huff, who began living with Yolanda and her three children. One night in 2002, Yolanda



                                            3
found Huff disrobed and in bed with her 12 year old daughter, whose shorts were pulled

down, which prompted an outcry and accusations of sexual abuse. Although Yolanda

initially reported the incident, she later tried to recant, claiming she did not believe her

daughter. At one point, she denied that anything occurred. On other occasions, she

blamed her daughter. She took her daughter to various people in the county, including

the district attorney’s office, to prove that she had changed her story.

       Huff was prosecuted for sexual abuse, pleaded guilty, and pursuant to a plea

bargain, received community supervision. He became a registered sex offender. While

on probation, he returned to living with Yolanda and her three children. The Department

discovered the situation and removed the children, placing them with their paternal

grandparents who became managing conservators. Yolanda was given possessory

conservatorship.

       During this process, Yolanda revealed that her daughter had made a separate

outcry of sexual abuse involving a relative of her biological father.        Yolanda, who

continued to blame her daughter for the sexual abuse by Huff even after his conviction,

cited this prior outcry as proof that her daughter was sexually active and “was wanting

this to happen.” She claimed that Huff would drink a lot and that her daughter was

therefore able to seduce him as she had done in the past with at least one other man,

the relative of her biological father. Yolanda did not take any responsibility for what

happened to her daughter. According to Ms. Kestler, Yolanda did not appreciate the

severity of those situations nor did she understand that she needed to protect her

children.




                                             4
       D. Testimony of Dr. Michelle Moran

       Dr. Michelle Moran evaluated appellant and Yolanda as part of their service

plans. Dr. Moran testified that, based on her evaluations, neither appellant nor Yolanda

would be able to raise the child, K.S.

       With respect to Yolanda, Dr. Moran expressed concerns regarding her prior

history of poor judgment and lack of protection of her children, her inappropriate

expectations of children, and her passivity and dependence on appellant. Further, Dr.

Moran was concerned that Yolanda would be physically incapable of caring for K.S.,

who was two years old at the time of trial. Yolanda has diabetes, hypertension, asthma,

obesity, and depression and frequently could not walk more than a few steps or change

a diaper and needed to use an oxygen tank during the summer months. According to

Dr. Moran, Yolanda is not sufficiently agile to effectively take care of a young child.

       Dr. Moran was also deeply concerned with Yolanda’s dependency issues. As an

example, she cited Yolanda’s willingness to reconcile with Huff and to believe his

assertions of innocence even though she, with her own eyes, had seen an inappropriate

sexual situation between Huff and her 12 year old daughter. Dr. Moran stated that her

dependency “marks Yolanda as a very dependent individual who is easily swayed,

perhaps naïve, gullible, lacks confidence in her own perceptions and decisions.” Dr.

Moran stated that this is a strong indication that Yolanda will not be protective of a child.

According to Dr. Moran, Yolanda is very likely a person who is going to put her needs

ahead of her child’s. Dr. Moran stated that Yolanda’s history suggests that it is more

important to her to get along with her paramour than it is to protect her child from being

the victim of sexual abuse.



                                             5
       Dr. Moran also testified regarding appellant, noting that he has a history of

relationship dysfunction and poor judgment. Appellant has been married to three other

women (not including Yolanda), but because he has not been divorced from his second

wife, it is unclear whether his third marriage was valid. Yolanda, whom he holds out as

his common law wife, uses his last name “for important stuff that [they] have together.”

Like appellant, she is also currently married to someone else, Herrera, from whom she

has not sought a divorce.      Appellant did not know that Yolanda is still married to

Herrera. Dr. Moran testified that appellant’s poor judgment was demonstrated by the

history of his three prior marriages and his failure to divorce his second wife before

marrying his third wife and later holding Yolanda out as his common law wife. Dr.

Moran found it significant that appellant has lost contact with two of the children from his

second marriage, and she considered that to be an indicator that appellant is an

“unstable” parent.

       Dr. Moran noted that appellant characterized his role in the “affair” with K.S.’s

mother as passive, relating that “she came on to him and he resisted for some time, but

then, you know, it occurred.”       Dr. Moran believed appellant had displayed poor

judgment in beginning the “affair,” given that K.S.’s mother had just turned 18 and

appellant was involved in a relationship with Yolanda.        Dr. Moran also noted that

appellant did not disclose the “affair” to Yolanda until paternity of K.S. had been

established. She was concerned about Yolanda’s anger in response to the disclosure,

the problems this created in appellant’s relationship with Yolanda, and how the issue of

infidelity would continue to come up if Yolanda were to become K.S.’s stepmother.




                                             6
           Dr. Moran found it very significant that appellant and Yolanda lacked knowledge

about each other’s lives. Appellant did not know about Yolanda’s involvement with the

Department and how Yolanda’s biological children had been removed from her. These

are facts that, in Dr. Moran’s opinion, appellant should have known since he and

Yolanda were intending to raise a child together. Yolanda did not know about the

issues in appellant’s previous marriages or his criminal history. Based on the foregoing,

Dr. Moran expressed serious concerns about the emotional intimacy in the relationship

and the depth of the couple’s family commitment to K.S.

           Dr. Moran also testified regarding appellant’s criminal history and his lack of

candor during their interview. Appellant’s criminal history includes a number of arrests;

one of them, a sexual harassment charge, resulted in a conviction.                            This incident

involved appellant calling up a woman and telling her in explicit language that he

wanted to do various sexual things to her. Appellant was also arrested for injury to a

child, but during his interview with Dr. Moran, he could not recall what had happened or

what he was alleged to have done. He was arrested again on a similar charge involving

allegations of fondling a child, but again, he told Dr. Moran he had no recollection of

what he had been accused of or what the charge entailed and he was unable to offer

any explanation of his version of events.1

           Dr. Moran considered a charge of injury to a child to be a significant event in a

man’s life, one he would remember. With regard to the sex offense of fondling a child,

she was concerned about appellant’s lack of memory. It was her impression that he just

did not want to reveal what had happened or what was suspected to have happened. In


           1
               Appellant’s other arrests include delivery of marijuana, possession of a prohibited weapon, and
larceny.

                                                         7
her opinion, he was evading the issue. She did not believe he was entirely forthcoming

with the details he probably recollected and was making an effort to present himself

favorably.   It caused Dr. Moran concern to have someone who is not willing to be

honest with her raise a two-year-old child such as K.S. Dr. Moran saw this as part of a

larger pattern of dishonesty that included appellant’s concealment of his sexual activity

with K.S.’s mother from Yolanda and his continuing to do so even after the child’s birth.

      Based on the foregoing, it was Dr. Moran’s opinion that it would not be in the best

interest of K.S. to be raised in a home where appellant is the father and Yolanda is the

stepmother of the child.

      E. Testimony of Christi Hartley-Harvey

      Christi Hartley-Harvey, a social worker and forensic psychologist who instructed

appellant and Yolanda in parenting and homemaking in connection with their service

plan, was also called as a witness to testify at trial. She testified that while appellant

and Yolanda completed their assignment, she was not comfortable with their ability to

parent a two-year-old child.

      With regard to Yolanda, Hartley-Harvey had concerns about her health, based on

the same factors noted by Dr. Moran. She also had concerns about Yolanda’s history

with her own biological children.    Yolanda had difficulty understanding why people

considered her not having had contact with her children for many years to be

abandonment.     Yolanda was not able to understand how she failed to protect her

children from the abuse they had endured.

      With regard to appellant, Hartley-Harvey had concerns about his past and some

of the alleged offenses. She noted that appellant talked down to Yolanda and degraded



                                            8
Yolanda. This happened when they were meeting in the couple’s home and when they

were in supervised visits with K.S. Appellant would “snap at Yolanda” and “talk to her in

a manner in which he was, in [her] opinion, talking to a child of about six or seven.”

According to Hartley-Harvey, Yolanda “just kind of went along with it.”             She had

concerns with Yolanda being so submissive and appellant being in total control. That

was a “red flag” because Yolanda had a history of unhealthy relationships. Hartley-

Harvey was concerned that this pattern would continue and the child would not be safe.

       Hartley-Harvey also testified that appellant stated several times that he did not

feel the need to childproof his home as required by the service plan because when he

tells his children not to do something or not to touch something, they listen to him. She

testified that it is not reasonable for a parent to expect a two-year-old child to obey just

because the parent says so.

       Based on the foregoing, Hartley-Harvey testified that, in her opinion, appellant

and Yolanda cannot provide a safe, stable environment for K.S.

       F. Testimony of Appellant

       Appellant testified at trial, telling the court, “I’m willing to take care of the child

that I made,” which prompted the following exchange:

       The Court:    Well, now that you’re caught, now you want to do something.

       [Appellant]: No. I’ve been wanting to. I’ve been going to counseling for
                    over a year now to try to get my daughter back. Since the
                    first day I found out, I’ve been trying to get her back to my
                    house.

       The Court:    And are you also doing your best to make sure you’re
                     divorced and living with somebody that’s divorced and
                     setting up some kind of family that that child can be proud
                     of?



                                              9
[Appellant]: Yes, sir.

The Court:   What are you doing about that?

[Appellant]: We’re working on getting divorces.

The Court:   What? What are you doing?

[Appellant]: She keeps telling me she’s going to call Legal Aid to help her
             and I’m trying to get some money together to get mine and
             keep up my bills at the same time.

The Court:   Well, you told us a while ago you didn’t even know for sure
             that she wasn’t divorced until right now.

[Appellant]: She’s not – the one that’s in prison, I don’t think she’s
             married to him. She has a husband in Mexico that’s married
             to another woman over there, that she didn’t know he was
             married. That was before – like I said, that was before I
             even got with her. I don’t know nothing about what
             happened in her past, that’s what she’s told me.

The Court:   Well, what about what’s happened in your past? You don’t
             know if you’re divorced or not, either.

[Appellant]: I know I’m not divorced yet.

The Court:   But you’re living with another woman, even though you’re
             not divorced.

[Appellant]: Yes, sir.

The Court:   And claiming to be common law married to her when that’s
             necessary?

[Appellant]: I’ve never claimed to be common law married to her. Yes,
             there is times [sic] she uses my last name.

The Court:   Well, yeah, that’s how she was introduced to the Court
             today, was as Yolanda Guajardo Foster.

[Appellant]: Yes, sir.

The Court:   Was that just to try and confuse the Court or were those
             people that introduced her as such confused or who’s
             confused?

                                    10
       [Appellant]: She goes by Guajardo. She very seldom uses my last
                    name, except for important stuff that we have together.

       Appellant testified that he understood why his criminal history is a concern in this

proceeding. He testified that he had sexual intercourse with K.S.’s mother two or three

times. He did not know K.S.’s birth date.

       G. The Trial Court’s Ruling

       After hearing closing arguments, the trial court announced the decision to

terminate appellant’s parental rights to K.S., stating in relevant part:

       [T]he child is the most important part of what the Court is to consider. And
       my charge is to listen and make a determination about what is in the
       child’s best interest.

       [T]here’s more to being a parent than doing some tasks that are written
       down on a service plan. And there’s more to being a parent than finally
       buying the safety features for the electrical outlets and cleaning your
       house up. There is an issue of morality and responsibility that goes into
       parenting. And parents have a moral responsibility to teach their children
       and to bring their children up to be responsible members of society without
       being threatened or forced or coerced into doing that. And what I see in
       [appellant] is a pattern that, as recently as two years ago, allowed him to
       consider his own sexual desires over a moral responsibility to society,
       which is a further reflection of what I have in the statement that was
       entered into evidence of him calling a woman and saying really ugly things
       to her.

       I also see he is joined in a committed relationship with [Yolanda] who
       certainly lacks a basic perception of right and wrong in parental
       responsibility for the nurturing and maintenance of children.

       I also see in [appellant] a person who has four or five other children that
       he has access to or does not have access to, whatever the case may be,
       that he visits or does not visit as is most convenient. And suddenly this
       little girl is the most important thing in his life. And that sort of doesn’t ring
       true when I look at the whole picture of who [he] is. He’s gone 49 years
       and all of a sudden this little precious package has fallen out of the sky
       and it’s the most important thing in his life and he’s going to be this whole
       new person after 49 years of being something else.



                                              11
       And so it’s my judgment that it is not in [K.S.]’s best interest for [appellant]
       to be her parent and so I’m going to order that the parental rights of
       [appellant] are terminated as to the minor child [K.S.].

                                        II. DISCUSSION

       By three issues, appellant challenges the legal and factual sufficiency of the

evidence to support the trial court’s termination of his parental rights under Texas

Family Code: (1) section 161.001(1)(O), for failure to comply with provisions of a court

order that specifically established the actions necessary for the parent to obtain the

return of the child; (2) section 161.001(1)(E), for engaging in conduct or knowingly

placing the child with persons who engaged in conduct which endangers the physical or

emotional well-being of the child; and (3) section 161.001(2), because termination of

parental rights is in the best interest of the child.

       A. Standard of Review

       In In re J.F.C., the Texas Supreme Court outlined the procedure for conducting a

legal sufficiency review of parental-rights termination cases as follows:

       In a legal sufficiency review, a court should look 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. To give appropriate deference to the factfinder’s conclusions and the
       role of a court conducting a legal sufficiency review, looking at the
       evidence in the light most favorable to the judgment means that a
       reviewing court must assume that the factfinder resolved disputed facts in
       favor of its finding if a reasonable factfinder could do so. A corollary to this
       requirement is that a court should disregard all evidence that a reasonable
       factfinder could have disbelieved or found to have been incredible. This
       does not mean that a court must disregard all evidence that does not
       support the finding. Disregarding undisputed facts that do not support the
       finding could skew the analysis of whether there is clear and convincing
       evidence.

       If, after conducting its legal sufficiency review of the record evidence, a
       court determines that no reasonable factfinder could form a firm belief or
       conviction that the matter that must be proven is true, then that court must

                                               12
       conclude that the evidence is legally insufficient. Rendition of judgment in
       favor of the parent would generally be required if there is legally
       insufficient evidence.

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (citations omitted); see also In re J.L., 163

S.W.3d 79, 85 (Tex. 2005) (stating that the reviewing court must “look 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 a factual sufficiency review, “[w]e must determine whether, on the entire

record, a fact-finder could reasonably form a firm conviction or belief that the parent

violated a provision of section 161.001(1) and that the termination of the parent’s

parental rights would be in the best interest of the child.” In re M.C.T., 250 S.W.3d 161,

168 (Tex. App.—Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d at 28). Under

this standard, we must consider:

       [W]hether the disputed evidence is such that a reasonable factfinder could
       not have resolved the disputed evidence in favor of its finding. 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,
       then the evidence is factually insufficient.

In re J.F.C., 96 S.W.3d at 266 (citations omitted). An appellate court’s review must not

be so rigorous that the only findings that could withstand review are those established

beyond a reasonable doubt. See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

       B. Analysis

       Under Texas law, the parent-child relationship may be terminated upon a finding

supported by clear and convincing evidence that the parent engaged in certain conduct

specified in section 161.001 and termination is in the child’s best interest. In re C.H., 89

S.W.3d at 23. Both elements must be established; termination may not be based solely

                                              13
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).

       In this case, appellant challenges the trial court’s finding that he “engaged in

conduct or knowingly placed the child with persons who engaged in conduct which

endanger[ed] the physical or emotional well-being of the child” and that termination of

the parent-child relationship is in the child’s best interest. See TEX. FAM. CODE ANN. §

161.001(1)(E), (2). Appellant also challenges the trial court’s finding that he failed to

comply with the provisions of a court order that specifically established the actions

necessary for him to obtain the return of K.S. See id. § 161.001(1)(O).

1. Conduct Endangering the Child

       Section 161.001(1)(E) requires the court to look at the parent’s conduct alone,

including actions or omissions or failures to act. In re D.T., 34 S.W.3d 625, 634 (Tex.

App.—Fort Worth 2000, pet. denied). “Endanger” under section 161.001(1)(E) means

to expose to loss or injury, to jeopardize. Boyd, 727 S.W.2d at 533. The term means

more than a threat of “metaphysical injury,” but it is not necessary that the conduct be

directed at the child or that the child actually suffer injury. Id. Nevertheless, there must

be evidence of endangerment to the child’s physical or emotional well-being as the

direct result of the parent’s conduct. In re R.D., 955 S.W.2d 364, 366 (Tex. App.—San

Antonio 1997, pet. denied); Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907

S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no writ).

       Under subsection (E), the relevant inquiry is whether evidence exists that the

endangerment of the child’s physical and emotional well-being was the result of the

parent’s conduct, including acts and omissions. Castaneda v. Tex. Dep’t of Protective &



                                            14
Regulatory Servs., 148 S.W.3d 509, 522 (Tex. App.—El Paso 2004, pet. denied); In re

R.D., 955 S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied); Dupree, 907

S.W.2d at 83-84. The conduct to be examined includes what the parents did both

before and after the child was born. Castaneda, 148 S.W.3d at 522; In re D.M., 58

S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.); Dupree, 907 S.W.2d at 84. To

be relevant, the conduct does not have to have been directed at the child, nor must

actual harm result to the child from the conduct.      Castaneda, 148 S.W.3d at 522;

Dupree, 907 S.W.2d at 84; In re C.D., 664 S.W.2d 851, 853 (Tex. App.—Fort Worth

1984, no writ). 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. Castaneda, 148 S.W.3d at 522; In re K.M.M., 993 S.W.2d

225, 228 (Tex. App.—Eastland 1999, no pet.). The specific danger to the child’s well-

being need not be established as an independent proposition, but may be inferred from

parental misconduct. Castaneda, 148 S.W.3d at 522-23; In re N.K., 99 S.W.3d 295,

300 (Tex. App.—Texarkana 2003, no pet.).

      Our review of the record in the light most favorable to the trial court’s findings

reveals more than a scintilla of evidence to support the finding that appellant engaged in

a course of conduct which endangered K.S.’s physical and emotional well-being. As

summarized above, there was testimony from witnesses, including Dr. Moran, Hartley-

Harvey, and appellant, that appellant has been engaged in a long-term course of

conduct involving marital infidelity, dishonesty, sexual immorality, and criminal

misconduct of a sexual nature. The evidence demonstrated that appellant’s course of




                                           15
conduct involved both poor judgment and exploitative, even predatory, behavior towards

women and children.

       The court also heard testimony about appellant’s relationship with his paramour,

Yolanda, who has a history of being exploited and abused. Yolanda, whom appellant

identified as the caregiver for K.S., failed to protect her own biological children against a

known sexual predator. Instead, she chose to reconcile with him and blamed her 12-

year-old daughter for being a seductress.

       There was ample testimony from which the court could find that Yolanda’s course

of conduct was continuing with appellant, as demonstrated by her willingness to “go

along with” appellant’s abusive conduct in talking down to her like a child during visits

with K.S. and Hartley-Harvey.         At the same time, appellant demonstrated his

unreasonable expectations for K.S. by telling Hartley-Harvey that the two-year-old child

would listen to him and do whatever he says.

       We conclude that the foregoing is legally sufficient to support the trial court’s

finding.

       Appellant has also challenged the factual sufficiency of the evidence. As noted

above, the standard of review for a factual sufficiency challenge requires the reviewing

court to consider the entire record.      J.F.C., 96 S.W.3d at 266.       In support of his

challenge, appellant relies on his testimony that he did not know K.S. was his child until

he was notified by the Department. Appellant argues that he could not have engaged in

a course of conduct that endangered the child because he had no knowledge of

paternity and was not in possession of the child.




                                             16
       Knowledge of paternity is not a prerequisite to a finding of course of conduct

endangering a child under section 161.001(1)(E). See In re M.J.M.L., 31 S.W.3d 347,

351 (Tex. App.—San Antonio 2000, pet. denied) (“[W]hile knowledge of paternity is a

prerequisite to a showing of knowing placement of a child in an endangering

environment, it is not a prerequisite to a showing of a parental course of conduct which

endangers a child under section 161.001(1)(E).”).               Furthermore, to the extent

appellant’s argument is based on the fact that he was not in possession of K.S., he is

arguing that there is no evidence of actual harm to the child, which is not required for a

finding of endangerment. See Boyd, 727 S.W.2d at 533 (“[I]t is not necessary that the

conduct be directed at the child or that the child actually suffer injury.”).

       Appellant’s second issue is overruled.

2. Best Interest of Child

       In his third issue, appellant challenges the sufficiency of the evidence to prove

that termination is in the best interest of the child. In deciding whether the evidence is

sufficient to support the trial court’s finding that termination is in the child’s best interest,

we apply the non-exclusive factors set forth in Holley v. Adams, 544 S.W.2d 367, 371-

72 (Tex. 1976). Those factors include: (1) the desires of 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 plans for the child by these individuals; (6) the stability of the

home; (7) the acts or omissions of the parent which may indicate that the existing

parent-child relationship is not a proper one; and (8) any excuse for the acts or

omissions of the parent. See id.



                                               17
       Our review of the record in the light most favorable to the trial court’s findings

reveals more than a scintilla of evidence to support the finding that termination of

appellant’s parent-child relationship with K.S. is in the child’s best interest. Although

appellant has challenged the trial court’s finding of endangerment, we have found the

evidence both legally and factually sufficient to support the finding of endangerment and

we believe that the finding is highly probative on the issue of whether termination is in

the child’s best interest. While it is true that proof of acts or omissions under section

161.001(1) does not relieve the petitioner from proving the best interest of the child, the

same evidence may be probative of both issues. In re C.H., 89 S.W.3d at 28 (citing

Holley, 544 S.W.2d at 370; Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex. 1976)).

       Furthermore, the Texas Supreme Court has never held that the Holley factors

are exhaustive, or that all such considerations must be proved as a condition precedent

to parental termination. In re C.H., 89 S.W.3d at 27. As the Court has explained, “The

absence of evidence about some of these considerations would not preclude a fact-

finder from reasonably forming a strong conviction or belief that termination is in the

child’s best interest, particularly if the evidence were undisputed that the parental

relationship endangered the safety of the child.” Id.

       In addition to the evidence supporting the trial court’s finding of endangerment,

there was also evidence regarding the inability of appellant and Yolanda to care for and

keep up with a toddler, both physically and emotionally.       The record also contains

evidence of appellant’s inability to provide a stable home and evidence that the parent-

child relationship is not a proper one. Yolanda’s status as caregiver and step-mother to

K.S. was also problematic in light of the fact that K.S. was conceived as a result of



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appellant’s infidelity in his relationship with Yolanda. It was also significant that both

appellant and Yolanda are married to other people and have histories of abandoning

and losing track of their children from those other marriages. Finally, we note that there

was evidence that the Department has permitted K.S. to remain with the family that her

mother chose for her, which is willing to adopt her. See In re C.H., 89 S.W.3d at 28.

(“Evidence about placement plans and adoption are, of course, relevant to best

interest.”).

       We conclude that the foregoing evidence is legally sufficient to support the trial

court’s finding that termination of the parent-child relationship is in the best interest of

K.S. Furthermore, we note that in challenging the factual sufficiency of the evidence,

appellant has not directed this Court to any evidence that is “so significant that a

factfinder could not reasonably have formed a firm belief or conviction” that termination

of the parent-child relationship is in the best interest of the child. See J.F.C., 96 S.W.3d

at 266. The evidence on which appellant relies is his own testimony, which the trial

court found “doesn’t ring true.” See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009)

(“recognizing that the factfinder, not the appellate court, is the sole arbiter of the

witnesses’ credibility and demeanor”).

       Appellant’s third issue is overruled.2




       2
           In his first issue, appellant argues that termination of his parental rights was improper
under section 161.001(1)(O), for failure to comply with provisions of a court order that
specifically established the actions necessary for the parent to obtain the return of the child.
However, even if this challenge were sustained, it would not entitle appellant to reversal of the
trial court’s judgment because we have concluded that the evidence is legally and factually
sufficient to support termination under section 161.001(1)(E) and (2). Accordingly, we need not
address appellant’s first issue. See TEX. R. APP. P. 47.1.

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                                    III. CONCLUSION

      The judgment of the trial court is affirmed.

                                                      ___________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice

Delivered and filed the
19th day of July, 2012.




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