Affirmed and Memorandum Opinion filed February 12, 2019.




                                             In The

                         Fourteenth Court of Appeals

                                     NO. 14-18-00750-CV

                IN THE INTEREST OF D.M.M., A CHILD, Appellant

                         On Appeal from the 313th District Court
                                  Harris County, Texas
                           Trial Court Cause No. 2017-03775J


                   MEMORANDUM                             OPINION
         Appellant A.J. (“Father”) appeals the trial court’s final decree terminating
his parental rights to his young daughter D.M.M. (“Damaya”) 1 and appointing the
Department of Family and Protective Services (“Department”) as the child’s sole
managing conservator. Father challenges the legal and factual sufficiency of the
evidence to support (1) the trial court’s finding on four predicate grounds and (2)
the trial court’s finding that termination is in the child’s best interest. We affirm.




1
    We refer to the child by the pseudonym “Damaya” to protect her privacy.
                    I. FACTUAL AND PROCEDURAL BACKGROUND

      Father and A.M. (“Mother”) are Damaya’s natural parents. Damaya was
originally removed from parental care as a result of Mother’s independent
misconduct.    Mother relinquished her parental rights mid-trial and supported
Damaya’s placement with her mother, Damaya’s maternal grandmother, B.A.
(“Grandmother”).

                             Pretrial Removal Affidavit

      When Damaya was less than a year old, the Department received a referral
reporting physical abuse to Damaya by her mother based on an incident occurring
at Memorial Hermann Memorial City Hospital. The same day, the Department
dispatched caseworker Clemmy Eneas-Varence to the hospital. The caseworker
later reported the facts she discovered in her investigation in an affidavit filed with
the trial court in support of the Department’s request for emergency removal of
Damaya.

      According to the caseworker’s affidavit, Mother entered the hospital
emergency room complaining of stomach pain.               After being admitted and
undergoing initial testing, Mother became impatient and sought to leave. Mother
had Damaya with her and reportedly placed Damaya’s infant carrier on a hospital
wheelchair to transport the child. Mother crashed the wheelchair and Damaya fell
out, landing face-first on the floor. The healthcare staff attended to Damaya. The
investigator reported that the attending physician stated that although the child’s
CT scan revealed no skeletal injury that “if the child had sustained intracranial
injury, it could have resulted in death of the child.”        The doctor prescribed
antibiotics for Damaya’s unrelated urinary tract infection.

      After the accident Mother initially acted erratically and attempted to remove
Damaya from the hospital. Then Mother left the hospital without the child, later
                                          2
returning to attend to her own medical treatment needs. Mother refused to speak to
the Department’s investigator but stated she would retrieve Damaya from the
Department’s care after Mother got out of the hospital.

       The Department’s investigator contacted Grandmother, who stated that she
had been Damaya’s primary caregiver and the primary caregiver of Mother’s other
children. After the investigator told Grandmother that Mother was expected to
come to the Department’s facility after she was discharged that night, Grandmother
allegedly stated that Mother was dying and would not be able to come. Mother
was discharged later the same night. Mother never appeared at the Department’s
facility.

       Based on information the Department gathered from Mother’s sister
(“Aunt”), the investigator reported that, days before, Mother had called Aunt to
pick her up from Dallas, where Mother had been residing.           Aunt picked up
Damaya from the home of the child’s paternal grandmother in Dallas, then she
picked up Mother. After visiting with providers at the hospital, the investigator
called the phone number provided by Aunt for the paternal grandmother. A young
lady answered the phone claiming to be Father’s sister. The young lady stated that
Mother had dropped Damaya at her home for two days and then returned for the
child, that Father was not in jail, and that Father would return the call in 30
minutes. Father did not return the call. Based on her findings of an immediate and
continuing danger to Damaya, the investigator believed the Department needed to
take emergency custody of the child.

            The Department’s Protective Measures, Petition, and Service Plan
       The day after the hospital incident, the Department secured Damaya in foster
care with intervenors B.R. (“Foster Mother”) and K.R. (“Foster Father”). Three
days later, the Department filed a petition seeking sole managing conservatorship

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of Damaya and the termination of Mother’s and Father’s parental rights to the
child.     In the petition, the Department also sought an emergency order for
temporary sole managing conservatorship of Damaya.

         Due to uncertainty concerning Father at the time of filing, the Department
also requested the court to determine parentage. The petition sets out alternative
allegations to terminate paternal rights of Father and “Unknown Father.” Ten days
after the Department filed its petition, the court held a full adversary hearing on the
Department’s request for temporary orders, and issued its “Temporary Order
Following Adversary Hearing” (“Temporary Order”).             The Temporary Order
includes an “appearances” section identifying the parties and the status of notice
that they were provided for the hearing. As to Father, the notice states “although
duly and properly notified, did not appear and wholly made default.” In the
Temporary Order, the trial court specifically established the actions necessary for
Father to obtain the return of Damaya and ordered Father to comply with the
original or any amended service plan during the pendency of this suit.

         Within a month, the Department created and filed a Family Service Plan
pertaining to Father. Evidence shows that initially Father was cooperating with the
Department and wanted custody of Damaya. The Family Service Plan required
Father to complete various tasks, including submitting to a paternity test. All
further tasks and participation turned on Father’s completion of the paternity test.

         Documents admitted into evidence at trial indicate that on August 12, 2017,
Father was arrested pursuant to a warrant for aggravated robbery and possession of
a controlled substance. The Department ultimately located and served Father with
the suit on September 17, 2017, in a Dallas jail. Shortly thereafter, the court issued
an order for a DNA screening. The results confirmed Father’s paternity. Father
signed the Family Service Plan on November 7, 2017.

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                                           Trial

       Trial evidence shows Father was incarcerated pending his criminal trial for
some but not all of the time leading up to the trial in this case. Father was
represented by counsel at trial, but he did not personally appear or testify at trial.

       During the trial, the Department introduced the following evidence germane
to Father’s case: (1) records related to establishing Father’s paternity, (2) Father’s
felony indictment with accompanying arrest warrant relating to an aggravated
robbery occurring on or about July 18, 2017, (3) Father’s felony indictment with
accompanying arrest warrant relating to possession of heroin on or about July 19,
2017, (4) the Family Service Plan signed by Father and the Department’s
representative, and (5) other records containing information about Father and his
conduct and efforts following Damaya’s removal, including the reports of the
Court Appointed Advocate and the Department’s Permanency Report.

       Mother, Grandmother, Department unit supervisor Shamaila Khan, Child
Advocate coordinator Susana Arredondo, and Foster Mother testified as to facts
related to Father’s case.2 The evidence included the following:

            Mother testified about the circumstance of Damaya’s removal,
             her history with the Department, including the removal of two
             other children who were being cared for by her own mother,
             and her ongoing drug problems. Mother testified that she did
             not have a relationship with Father. She testified that Father
             had never helped her in caring for Damaya and that only her
             mother, Grandmother, had helped. She testified that Father was
             in and out of jail for aggravated robbery. Mother testified that
             “marijuana and cocaine” were Father’s “drug[s] of choice.”
            Grandmother testified that she was the primary caretaker of

       2
        The Department also called two other witnesses: Tiffany Nguyen, records custodian for
the Wellness Counseling Center, and Bruce Jefferies with National Screening Center, National
Assessment Center, who testified as to facts concerning Mother’s drug use.

                                             5
             Damaya but that she and Mother shared responsibilities in
             caring for the child. She testified that she called the police
             when Mother came over and took Damaya to Dallas.
             Grandmother admitted that she had no ability to prevent Mother
             from taking the children out of her care.
           Department caseworker and unit supervisor Shamaila Khan
            testified that Father had signed the Family Service Plan, and
            confirmed that at first Father was cooperating with the agency.
           Khan testified that Father was not at fault in relation to the
            events that brought Damaya into custody. She knew of Father’s
            recent charges but admitted that she knew of no convictions.
           Khan testified that someone at the Department went over the
            Plan in the fifth month and that he had participated by phone.
            Khan testified that the Department made efforts to assign Father
            a courtesy worker in Dallas, but was unable to do this because
            Father failed to provide an address or active phone number.
           Khan further testified that Father had provided the name of a
            relative and that the Department had followed up with the
            relative who, in early conversations, appeared to be willing to
            take on Damaya. The relative ceased contact about four months
            prior to trial, before the Department could conduct a home
            study
           The Child Advocate and the Foster Parent both testified about
            Damaya’s physical and emotional condition throughout the
            course of the Department’s conservatorship.
      The trial court determined Father’s parental rights should be terminated
pursuant to the predicate findings under Family Code sections 161.001(b)(1)(D),
(E), (N), and (O), and appointed the Department as the child’s sole managing
conservator. The trial court approved the child’s placement in the foster home. In
its final decree for termination, signed August 2, 2018, the trial court stated
termination of Father’s parental rights was in the child’s best interest.




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                                II. ISSUES AND ANALYSIS

       Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section
161.001(b)(1); and (2) termination is in the best interest of the child. Tex. Fam.
Code Ann. § 161.001(b)(1), (2) (West Supp. 2016); In re J.O.A., 283 S.W.3d 336,
344 (Tex. 2009).

       Father raises five issues on appeal. In his first, second, third, and fourth
issues, Father challenges the trial court's findings under sections 161.001(b)(1)(D),
(E), (N) and (O) of the Texas Family Code — the predicate grounds upon which
the trial court based its termination-of-parental rights decision. In his fifth issue,
Father challenges the trial court's finding that termination of his parental rights is in
child’s best interest.

A.     Standard of Review

       Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.–Houston [14th Dist.] 2012, no pet.).
Despite the constitutional magnitude of parental rights, they are not absolute. In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“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.”). Due to the severity and permanency of the
termination of parental rights, the law imposes a heightened burden of proof,
requiring clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001; In
re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002). “Clear and convincing evidence”
means “the measure or degree of 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
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established.” Tex. Fam. Code Ann. § 101.007 (West 2014); In re J.F.C., 96
S.W.3d at 264. This heightened burden of proof results in a heightened standard of
review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.–Houston [14th Dist.] 2008,
no pet.).

       In conducting a legal-sufficiency review, we consider all the evidence in the
light most favorable to the finding to determine whether a reasonable factfinder
could have formed a firm belief or conviction that its finding was true. See In re
J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d
at 25. We presume the factfinder resolved disputed facts in favor of the finding if a
reasonable factfinder could do so, and we disregard all evidence a reasonable
factfinder could have disbelieved. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96
S.W.3d at 266.

       In reviewing the factual sufficiency of the evidence, we consider and weigh
all of the evidence, including disputed or conflicting evidence. In re J.O.A., 283
S.W.3d at 345. 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. Id. We give due deference
to the factfinder’s findings and we will not substitute our own judgment for that of
the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is
the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at
109.




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B.    Predicate Termination Grounds

1. Is the evidence legally and factually sufficient to support the trial court’s
finding that all elements of section 161.001(b)(1)(O) have been satisfied?
       Proof    of     the   predicate   ground   for   termination   under   section
161.001(b)(l)(O) suffices if the trial court finds by clear and convincing evidence
that the parent has:

      (O) failed to comply with the provisions of a court order that
      specifically established the actions necessary for the parent to obtain
      the return of the child who has been in the permanent or temporary
      managing conservatorship of the Department of Family and Protective
      Services for not less than nine months as a result of the child's
      removal from the parent under Chapter 262 for the abuse or neglect of
      the child;
Tex. Fam. Code Ann. § 161.001(b)(1)(O) (West). Father does not challenge that
Damaya was removed under Chapter 262 for abuse or neglect, or that Damaya was
in the Department’s conservatorship for the requisite period of time or that the trial
court ordered Father to comply with the terms of the Department’s Family Service
Plan. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(O); 263.101–106. In addition to
submitting to paternity testing, Father had to perform the following requirements:

           maintain stable and sanitary housing;
           provide proof of housing “by providing a lease agreement to the
            caseworker[;]”
           secure and maintain legal employment;
           provide the caseworker with “proof of income documentation
            as well as “[d]ocumentation of any additional sources of
            income (i.e., governmental assistance programs, child support,
            etc.)[;]”
           participate in giving truthful information;
           attend “all meetings, court hearings, visitations, and other
            planning sessions regarding [Father’s] children[;]” and

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           maintain contact with the current caseworker.
      The record indicates that Father may have participated in the creation of the
Family Service Plan at a conference with the Department the day before he was
incarcerated and signed the plan soon after his incarceration. The record contains
no evidence that Father did much else in furtherance of the plan and ample
evidence shows that Father violated the plan. Department unit supervisor Khan
testified that Father participated by phone in one conference with the Department
“in the fifth month,” but Khan was unaware of any further contact. Father made
communication difficult because he did not provide contact information to the
Department caseworker. The caseworker (Khan) testified that to her knowledge
Father never visited or communicated with the child. According to the caseworker,
Father did not accept the responsibility of parenting.

      In response to questioning about Father’s completion of the goal that “Parent
will show the ability to parent and protect the child,” Khan testified:

      Q So in the service plan goals that [Father] was required to undertake,
      he was required to show an ability to parent and protect the child.
      A Correct.
      Q Did he do that?
      A No.
By failing to provide the Department with contact information and by failing to
maintain contact with the Department, Father failed to comply with the Plan.
      In his brief, Father has raised legal and factual sufficiency challenges to the
trial court’s finding under subsection (O). The substance of Father’s briefing does
not establish compliance with the Family Service Plan, but instead proffers excuses
for his failure to comply.     Father argues that the Department did not make
accommodations to enable him to successfully complete the plan or encourage
Father to initiate contact with his daughter.            Father complains that the

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Department’s assessment of his performance was inherently subjective.

      The law places the burden of complying with the court order on the parent.
In re D.N., 405 S.W.3d 863, 878 (Tex. App.–Amarillo 2013, no pet). Courts do
not measure the “quantity of failure” or “degree of compliance.”          Id. at 877.
Rather, courts determine whether a parent has failed to comply. In re M.C.G., 329
S.W.3d 674, 675 (Tex. App.–Houston [14th Dist.] 2010, pet. denied) (holding a
parent’s reasons or excuses for failing to comply with the provisions of a court
order that specifically established the actions necessary for the parent to obtain the
return of the child are not material to the sufficiency of the evidence to support a
finding under section 161.001(1)(O)); see also In re A.W., No. 01–15–01030–CV,
2016 WL 3022824, at *7 (Tex. App.–Houston [1st Dist.] May 26, 2016, no. pet.)
(mem. op.) (holding substantial compliance with court-ordered service plan may be
insufficient to avoid termination).

      Given Father’s failure to perform most of the requisite actions, we conclude
the record evidence is legally and factually sufficient to support the trial court’s
finding under subsection (O).

2. Does the affirmative defense of subsection (d) of section 161.001 of the Texas
Family Code apply?
      The trial court’s termination order includes language that tracks the newly
created affirmative defense in section 161.001(d) of the Texas Family Code, which
provides:

      (d) A court may not order termination under Subsection (b)(1)(O)
      based on the failure by the parent to comply with a specific provision
      of a court order if a parent proves by a preponderance of evidence
      that:
      (1) the parent was unable to comply with specific provisions of the
      court order; and

                                         11
      (2) the parent made a good faith effort to comply with the order and
      the failure to comply with the order is not attributable to any fault of
      the parent.
Tex. Fam. Code Ann. § 161.001 (West, Westlaw through 2017 1st C.S.). The trial
court determined that Father did not raise subsection (d). Additionally, the trial
court stated, if Father did present such an affirmative defense, then there was no
proof by a preponderance of the evidence to satisfy either part (1) or part (2) of
subsection (d). Under our recent precedent addressing the applicability of the
provision to cases filed before but tried after the amendment’s effective date, the
trial court would have been precluded from excusing Father’s compliance with
subsection (b)(1)(O) by operation of subsection (d) if the petition were filed before
the September 1, 2017 effective date of the amendment adding subsection (d). See
Interest of S.J.N., 14-18-00529-CV, 2018 WL 6494256, at *5 (Tex. App.—
Houston [14th Dist.] Dec. 11, 2018, pet. denied) (“Section 161.001(d) applies only
to suits filed on or after its effective date of September 1, 2017”) (mem. op.). The
petition in today’s case was filed on July 17, 2017, two months before the effective
date. Therefore, the subsection does not apply. See id.

      As noted above, without specifically invoking subsection (d), Father
challenges the sufficiency of evidence to support the predicate finding under
subsection (O) by a series of excuses. Presuming without deciding that some
common law affirmative defense to compliance was available in our jurisprudence
before the enactment of subsection (d), we consider whether Father preserved the
issue for appellate review. The record shows Father failed to raise any affirmative
defense based on the proffered excuses in the trial court. Father did not ask the
trial court to consider Father’s excuses in any pleading, at trial, or in any pre- or
post-trial motion. Therefore, even if, the trial court could have considered the
excuses Father raises on appeal, Father failed to preserve error on them and so

                                         12
forfeited these arguments. See 950 Corbindale, L.P. v. Kotts Capital Holdings Ltd.
P'ship, 316 S.W.3d 191, 196 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

      Because the record contains legally and factually sufficient evidence to
support the trial court's findings under subsection (O), we need not address
Father’s arguments that the evidence is insufficient to support the trial court's
findings under section 161.001(b)(1)(D), (E), and (N). See 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.”). Thus, we need not and do not reach
Father’s first, second, and third issues.

                              Best Interest of the Child

      In his fifth issue, Father challenges the legal and factual sufficiency of the
evidence to support the trial court's finding that termination of his parental rights is
in Damaya’s best interest. Texas courts presume that keeping children with their
natural parents serves the child’s best interest. In re U.P., 105 S.W.3d 222, 230
(Tex. App.—Houston [14th Dist.] 2003, pet. denied). The Department carries the
burden of rebutting that presumption. Id. Proof of acts or omissions under section
161.001(b)(1) is probative of best interest. See In re S.R., 452 S.W.3d at 366. In
determining the child’s best interest the trier of fact may consider the following
non-exclusive factors known as the Holley factors:

      (1) the child’s desires;
      (2) the child’s present and future physical and emotional needs;
      (3) the present and future emotional and physical danger to the child;
      (4) the parental abilities of the person(s) seeking custody;
      (5) the programs available to assist those persons seeking custody in
      promoting the child’s best interest;


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      (6) the plans for the child by the individuals or agency seeking
      custody;
      (7) the stability of the child’s home or proposed placement;
      (8) acts or omissions of the parent that may indicate the existing
      parent-child relationship is not appropriate; and
      (9) any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re U.P., 105 S.W.3d at
230; see also Tex. Fam. Code Ann. § 263.307(b) (listing factors to consider in
evaluating parents' willingness and ability to provide children with a safe
environment). A best-interest finding does not require proof of any unique set of
factors, nor does it limit proof to any specific factors. See Holley, 544 S.W.2d at
371–72.

1. The child’s desires or evidence of bonding
      Damaya, twenty-two months old at the time of trial, was too young to testify
or verbally express her desires. In this circumstance, the factfinder may consider
that the child has bonded with the foster family, is well cared for by the foster
family, and has spent minimal time with the parent. In re L.G.R., 498 S.W.3d 195,
205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Child advocate Arrondo
testified that, based on her observations, Damaya was “extremely attached” to the
foster parents. The child takes directives from both foster parents. Foster Mother
testified that Damaya and their other child are “[t]wo peas in a pod. They get
along great. They’re little troublemakers together.” Father asserts on appeal that
he is bonded to Damaya. We do not dispute that Father loves Damaya, nor do we
discount the possibility that Father feels some bond with the child, but there is no
evidence in the record that Damaya has ever spent any appreciable time with
Father. The record shows Damaya shares a bond with her entire foster family.

2. The child’s physical and emotional needs, now and in the future

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      At trial, Mother testified that Father had made no contribution towards the
parenting of Damaya up to the time the child remained in Mother’s custody. A
factfinder may infer from a parent’s past inability to meet the child’s physical and
emotional needs the parent’s inability or unwillingness to meet the child’s needs in
the future. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.]
2014, no pet.). Even if we were to presume the trial court discredited Mother’s
testimony, the record contains no evidence of Father’s ability to meet Damaya’s
present and future physical and emotional needs. Foster Mother testified that when
she first took custody of Damaya, the child would eat meals as if she might not be
fed again. In assessing the child’s best interest, the trial court reasonably could
have weighed this evidence in favor of terminating Father’s parental rights. See id.

3. The emotional and physical danger to the child, now and in the future
      Mother testified that Father used marijuana and cocaine. Father’s criminal
records show that he was arrested for possession of heroin shortly after Damaya
was taken into the Department’s care. A parent’s drug use supports a finding that
termination is in the best interest of the child. See In re M.R., 243 S.W.3d 807, 821
(Tex. App.–Fort Worth 2007, no pet.). The factfinder can give “great weight” to
the “significant factor” of drug-related conduct. In re K.C., 219 S.W.3d 924, 927
(Tex. App.–Dallas 2007, no pet.); see also In re B.G., No. 14–14–00729–CV, 2015
WL 393044, at *7 (Tex. App.–Houston [14th Dist.] Jan. 29, 2015, no pet.) (mem.
op.) (considering a parent’s criminal and drug histories in affirming the decision
that termination was in the best interest of a child). Accordingly, the trial court
reasonably could have weighed this factor in favor of terminating Father’s parental
rights. See id; See also In re V.V., 349 S.W.3d 548, 553–54 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied) (“A lack of all contact with a child without any
proffered excuse and no effort to ensure her safety—coupled with criminal history

                                         15
and incarceration—is sufficient to support a best-interest finding.”).

4. The parental ability of the individuals seeking custody

      The only evidence presented at trial about Father’s ability to parent was that
he had been unsupportive before Damaya was removed from Mother’s care.
Foster Mother testified that she had a degree in family and child development and
that she used to train foster parents. Foster Mother formerly worked as a preschool
teacher and already is foster parent to another child. In assessing parenting ability,
the trial court reasonably could have weighed this factor in favor of terminating
Father’s parental rights

5. Plans for the child and stability of the home of proposed placement
      In his appellate brief, Father states “The father’s plans are unknown.” When
questioned about her plans with respect to Damaya, Foster Mother testified that the
foster parents want to adopt Damaya. According to Foster Mother, the foster
parents planned “to give [Damaya] everything we possibly can.” Foster Mother
testified that they “want her to be successful,” and “want to give her love and we
want to be good parents.”

      The stability of the proposed home environment stands as an important
consideration in determining whether terminating parental rights serves a child’s
best interest. See In re D.M., 452 S.W.3d 462, 472 (Tex. App.–San Antonio 2014,
no pet.). Texas courts recognize as a paramount consideration in the best-interest
determination the child’s need for permanence through the establishment of a
“stable, permanent home.” See K.C., 219 S.W.3d at 931. Therefore, evidence about
the child’s present and future placement informs the best-interest determination.
See C.H., 89 S.W.3d at 28.




                                          16
6. Noncompliance with subsection (O) and Excuses for Noncompliance
      Evidence supporting termination under the grounds listed in section
161.001(b)(1) also can be considered in support of a finding that termination is in
the child’s best interest. See C.H., 89 S.W.3d at 27 (holding the same evidence
may be probative of both section 161.001(b)(1) grounds and best interest). In
determining the best interest of the child in proceedings for termination of parental
rights, the trial court properly may consider that the parent did not comply with the
court-ordered service plan for reunification with the child. See In re E.C.R., 402
S.W.3d 239, 249 (Tex. 2013).

      Father complains that the Department did not make accommodations to
enable him to successfully complete the Family Sevice Plan.              Father also
complains that the Department did not encourage him to initiate contact with
Damaya. Father does not explain why he needed encouragement to seek contact
with his daughter or why he was unable or unwilling to initiate contact without
being encouraged. The trial evidence showed that had Father been incarcerated in
Harris County, the Department would have provided greater assistance. But Father
accepted the plan while he was incarcerated elsewhere and agreed to comply with
its terms. Father demonstrated an ability to communicate with the Department, yet
he points to no evidence to suggest he ever requested or needed accommodations.

7. Conclusion on Best Interests

      Applying the applicable Holley factors to the evidence, we conclude that
legally and factually sufficient evidence supports the trial court’s finding that
termination of Father’s parental rights is in Damaya’s best interests. See In re S.B.,
207 S.W.3d 877, 887–88 (Tex. App.–Fort Worth 2006, no pet.) (considering the
parent’s drug use, inability to provide a stable home, and failure to comply with a
family-service plan in holding the evidence supported the best-interest finding).

                                         17
Based on the evidence presented, the trial court reasonably could have formed a
firm belief or conviction that terminating Father’s rights served Damaya’s best
interests so that she quickly could achieve permanency through adoption. See In re
T.G.R.–M., 404 S.W.3d 7, 17 (Tex. App.–Houston [1st Dist.] 2013, no pet.);
M.G.D., 108 S.W.3d at 513–14. Accordingly, we overrule Father’s fifth issue.

      We affirm the judgment of the trial court.


                                       /s/    Kem Thompson Frost
                                              Chief Justice
Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.




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