                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-458-CV


IN THE INTEREST OF K.W., A CHILD


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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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

     Appellant Casey E. appeals the trial court’s order terminating his parental

rights to K.W. We affirm.

     Appellant and K.W.’s biological mother Courtney W. had known each

other for approximately eight years and had been together for ten or eleven

months when K.W. was born on October 12, 2006. 2 On December 25, 2006,

when K.W. was approximately two months old, appellant and Courtney rushed


     1
         … See T EX. R. A PP. P. 47.4.
     2
         … Appellant and Courtney have never been married.
a friend to Arlington Memorial Hospital as a result of a drug overdose. Both

Appellant and Courtney were under the influence of marihuana at the time;

K.W. was in the van.

      Attempting only to drop their friend off at the hospital, appellant and

Courtney were stopped by a security guard who smelled a strong odor of

marihuana on both of them and suspected that they were high. Appellant and

Courtney were sequestered in a “quiet room” until Arlington police arrived.

      Upon his arrival at the hospital, Arlington Police Officer Noe DeLaCruz

questioned appellant and Courtney about their drug use, and both admitted to

smoking marihuana. Appellant, on parole for possession of methamphetamines

and possession of chemicals to produce a controlled substance, was arrested

for parole violations. Courtney consented to a search of the van, and Officer

DeLaCruz found drug paraphernalia—a pipe with what he believed to be

marihuana in it, eight to nine individual bags of marihuana, and a scale.

      The hospital staff contacted the Department of Family and Protective

Services (the “Department”) and made a referral concerning K.W., stating that

a young man and woman high on marihuana had arrived at the hospital with a

lady who had had a drug overdose, that they were there with their infant child,

and that the child was dirty, had a urine-soaked diaper, reeked of urine, and

smelled of marihuana. His car seat also smelled of marihuana. There was no

                                      2
evidence of marks or bruising on K.W., and he appeared to be well fed. K.W.

was taken into the Department’s custody that night. Soon thereafter, K.W.

was placed in a foster home in Fort Worth.

      On December 27, 2006, the Department filed a petition for protection of

a child, for conservatorship, and for termination in a suit affecting the parent-

child relationship seeking the involuntary termination of appellant and

Courtney’s parental rights to K.W. 3

      While incarcerated and during the Department’s investigation, appellant

met with Jeanette Leong, the caseworker assigned to K.W . Leong provided

appellant with a service plan and discussed potential relatives K.W. could be

placed with.   All potential relatives, however, were either not interested in

caring for K.W., not able to care for K.W., or disqualified from caring for K.W.

Appellant continued to correspond with Leong throughout the course of the

Department’s investigation, notifying her of address changes, asking questions

about the case, explaining the steps he was taking to comply with his service

plan, and always expressing concern for K.W. While appellant took every class

offered to him in jail— parenting, anger management, covenant marriage and


      3
        … On October 17, 2007, Courtney filed with the trial court an affidavit
of relinquishment of parental rights voluntarily relinquishing her parental rights
to K.W. She did not appeal the termination of her parental rights to K.W.


                                        3
bible classes, he was not provided an opportunity to attend a substance abuse

program and, therefore, did not.

      On December 6, 2007, the case went to trial.        The trial court heard

evidence of appellant’s history of criminal behavior and drug abuse. Appellant

testified to having been arrested five or six times, and previously serving three

years on drug charges. Appellant admitted to being under the influence of

marihuana on December 25, 2006, and admitted to smoking methamphetamine

in the weeks prior to K.W.’s removal. At the time of trial, appellant had been

incarcerated for almost a year. He was scheduled to be released on February

27, 2008.

      Leong testified that she believed appellant was making every effort to

comply with his service plan; however, appellant’s prior methamphetamine use

was her “prime concern” because, while incarcerated, appellant had been

unable to complete a substance abuse program. He had been unable, therefore,

to demonstrate the ability to refrain from the highly addictive drug when faced

with the stress of daily life.

      With regard to K.W., Leong testified that he had been placed in foster

care where he was “thriving,” and the Department’s permanency plan was for

K.W. to be adopted by the foster parent he had been placed with in December

2006 (his “foster mother”). Leong opined that K.W. and his foster mother had

                                       4
developed a bond and testified that K.W.’s foster mother had maintained

contact with and had continued to visit K.W. after he was placed in a second

foster home.4

      At the close of the hearing, appellant asked the trial court to deny the

Department’s petition for termination, but place permanent managing

conservatorship with the Department and give appellant the opportunity to

reestablish his parent-child relationship with K.W.

      On December 17, 2007, the trial court entered an order of termination

finding that appellant had knowingly placed or knowingly allowed K.W. to

remain in conditions or surroundings which endangered K.W.’s emotional or

physical well-being and had engaged in conduct or knowingly placed K.W. with

persons who engaged in conduct which endangered K.W.’s emotional or

physical well-being and that termination of the parent-child relationship between

appellant and K.W. was in K.W.’s best interest. This appeal followed.

      In his sole issue, appellant challenges the legal and factual sufficiency of

the evidence with respect to the trial court’s finding that terminating his

parental rights was in the best interest of K.W.




      4
       … K.W. was placed in a second foster home when his foster mother was
called to complete basic training. At the time of trial, the foster mother had
completed basic training.

                                        5
      In proceedings to terminate the parent-child relationship brought under

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

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

is in the best interest of the child. 5 Because of the elevated status of parental

rights, the quantum of proof in a termination proceeding is elevated from the

preponderance of the evidence to clear and convincing evidence. 6 The higher

burden of proof in termination cases alters the appellate standard for both legal

and factual sufficiency reviews.7 Both legal and factual sufficiency reviews in

termination cases must take into consideration whether the evidence is such

that a fact-finder could reasonably form a firm belief or conviction about the

truth of the matter on which the State bears the burden of proof.8

      Accordingly, in reviewing the evidence for legal sufficiency in parental

termination cases, we look at all the evidence in the light most favorable to the



      5
     … T EX. F AM. C ODE A NN. § 161.001 (Vernon Supp. 2007); In re J.L., 163
S.W.3d 79, 84 (Tex. 2005).
      6
       … Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1398 (1982);
see also T EX. F AM. A NN. § 161.001.
      7
      … In re J.F.C., 96 S.W.3d 256, 265 (Tex. 2002); In re C.H., 89 S.W.3d
17, 25 (Tex. 2002); In re J.T.G., 121 S.W.3d 117, 124 (Tex. App.—Fort
Worth 2003, no pet.).
      8
     … J.F.C., 96 S.W.3d at 265-66; C.H., 89 S.W.3d at 25; J.T.G., 121
S.W.3d at 124.

                                        6
finding to determine whether a reasonable trier of fact could have formed a

firm belief or conviction that its finding was true.    In conducting our review,

we must also disregard all evidence that a reasonable fact-finder could have

disbelieved; however, we must consider undisputed evidence even if it is

contrary to the finding. 9      That is, we must consider evidence favorable to

termination if a reasonable fact-finder could, and disregard contrary evidence

unless a reasonable fact-finder could not.10     But we cannot weigh witness

credibility issues that depend on the appearance and demeanor of the

witnesses, for that is the fact-finder’s province. 11

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

deference to the fact-finder’s findings and not supplant the judgment with our

own.12 We must determine whether, on the entire record, a fact-finder could

reasonably form a firm conviction or belief that the termination of the parent’s

parental rights would be in the best interest of the child. 1 3 If, in light of the

entire record, the disputed evidence that a reasonable fact-finder could not have


      9
          … In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
      10
           … Id.
      11
           … Id. at 573, 574.
      12
           … In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
      13
           … C.H., 89 S.W.3d at 17.

                                          7
credited in favor of the finding is so significant that a fact-finder could not

reasonably have formed a firm belief or conviction in the truth of its finding,

then the evidence is factually insufficient. 14

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

always presumed to be in the child’s best interest. 15 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 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;




      14
           … H.R.M., 209 S.W.3d at 108.
      15
           … T EX. F AM. C ODE A NN. § 263.307(a) (Vernon 2002).

                                           8
      (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.16

These factors are not exhaustive; some listed factors may be inapplicable to

some cases; other factors not on the list may also be considered when

appropriate.17 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.18 On the other hand, the presence of scant evidence

relevant to each factor will not support such a finding.19

      Reviewing the record in light of these factors, the evidence shows:

      •        K.W. was doing well in foster care, had passed all early
               childhood intervention screenings, and was a healthy baby.
               Leong testified that “[h]e’s doing great.” She said that she
               had seen a bond develop between K.W. and his foster
               mother and his foster mother had continued to keep in
               contact with him and visit him.

      •        Appellant exposed K.W. to drugs and drug activity. On the
               night of December 25, 2006, appellant allowed K.W. to ride
               in the van while he and Courtney were under the influence of
               marihuana.


      16
           … Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
      17
           … C.H., 89 S.W.3d at 27.
      18
           … Id.
      19
           … Id.

                                         9
         •     Appellant has a history of crime and illegal drug use. He has
               not been able to complete a substance abuse program during
               his incarceration because none is offered. Appellant testified,
               however, that he had done well working toward
               accomplishing the goals of his service plan, although he
               admits that in the past he had found it difficult to obey the
               law outside of an institutionalized environment. Appellant
               attempted to better himself by completing an anger
               resolution seminar, a covenant of marriage class, a “Born to
               Win” bible class, and a parenting seminar.

         Based on our review of the entire record, and giving due consideration to

the evidence that the fact-finder could have reasonably found to be clear and

convincing, we hold that the above evidence is legally and factually sufficient

to support the trial court’s best-interest finding.20 We overrule appellant’s sole

issue.

         Having overruled appellant’s only issue, we affirm the trial court’s order

terminating his parental rights to K.W.


                                                    PER CURIAM

PANEL F: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

DELIVERED: July 3, 2008


         20
        … See In re S.M.L., 171 S.W.3d 472, 480 (Tex. App.—Houston [14 th
Dist.] 2005, no pet.)(holding clear and convincing evidence existed that
termination of father’s parental rights was in the child’s best interest where,
among other factors, father was incarcerated at the time of the termination
hearing and had a pattern of criminal and violent conduct).

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