      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00678-CV



                               Maximo Munoz Aguilar, Appellant

                                                   v.

                   Kimberly Lee Foy and Thompson Ray Foy, Jr., Appellees


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 425TH JUDICIAL DISTRICT
     NO. 07-043-A425, HONORABLE MARK J. SILVERSTONE, JUDGE PRESIDING



                             MEMORANDUM OPINION


                After a bench trial, the trial court terminated Maximo Munoz Aguilar’s parental

rights to two children and established Kimberly Lee Foy and Thompson Ray Foy, Jr., as the

children’s adoptive parents. On appeal, Aguilar contends that the trial court erred by admitting

an expert opinion on the children’s best interests, arguing that the expert’s failure to investigate him

or his home fatally undermined the expert’s opinion. Aguilar also contends that the evidence was

legally and factually insufficient to support the findings that he placed or knowingly allowed the

children to remain in conditions or surroundings that endangered their physical or emotional well-

being, that he engaged in conduct or knowingly placed the minor children with persons who engaged

in conduct that endangered the children’s physical or emotional well-being, and that termination

was in the children’s best interest. We will affirm the judgment.
                                          BACKGROUND

               Maximo Aguilar and Angela Meissner had three children together, the older two

of whom are the subject of this case. The children were born in September 2003 and October 2004.

A third child, born in July 2006, is not the subject of this case.

               Aguilar and Meissner have somewhat checkered legal records. Aguilar admitted to

a variety of arrests beginning in 1997 when he was sixteen years old and continuing through his

2006 arrest for possession of cocaine with intent to deliver.1 Meissner was arrested for driving while

intoxicated in 1999, forgery in 2001 (as a party), and forgery in 2006.

               The attorney general filed suit in Bosque County in July 2005, seeking child support

from Aguilar after he and Meissner separated. The children were living with Meissner. Aguilar and

Meissner later had a third child, although they separated months before that child was born.

               When Meissner and their newborn third child tested positive for cocaine in July 2006,

the Department of Family and Protective Services intervened. The Department let Meissner

designate where her children were placed, subject to review. Aguilar could not take the children

because he was incarcerated. The newborn went to live with Meissner’s mother, and the two older

children went to live with the Foys on July 7, 2006. Kim Foy is Meissner’s cousin. The older

children have lived with the Foys since. The Department formalized the placement with the Foys

in a Plan for Immediate and Short-Term Child Safety dated July 27, 2006, which was intended to

last three months.


       1
           Other arrests included minor in possession, assault, criminal trespass, organized criminal
activity, and fleeing police in 1999, failure to identify and aggravated assault in 2004, and assault
with family violence (against Meissner) in 2005.

                                                   2
                   Meissner did not finish the classes or make the changes that the Department

deemed necessary for her children’s safety. In a letter from the Department to Meissner dated

March 7, 2007, the Department stated that it was closing the case with the expectation that the

children would remain in their respective placements. The Department stated that the Foys and

Meissner’s mother agreed “to follow through with pursuing legal custody of the children.” The letter

did not mention Aguilar.

                   Meanwhile, Aguilar had been released from incarceration in August 2006. Aguilar

testified without contradiction that he completed the parenting and anger-management classes

prescribed by the Department. He testified that when he learned the case had been closed, he called

the Department to determine what that meant with respect to him. He testified that Department

employees told him he could go and pick up his children. Aguilar called and told the Foys that he

was coming to take the children.

                   Kim Foy testified that she did not know that Aguilar had or believed he had the

legal right to the children. When Aguilar arrived, the Foys called the police and Aguilar left without

the children. The Foys filed this suit on May 14, 2007 seeking to terminate his parental rights and

to adopt the children themselves. They obtained a temporary restraining order preventing Aguilar

from contacting the children. The restraining order was set to expire on June 12, 2007, but was

extended by agreement “until the next scheduled hearing date set for June 25, 2007 at 9:00 a.m.”

Aguilar agreed to abide by the restraints of the order “until further order of the Court at that time.”

There is no indication in the record that any further order was issued through the termination of

parental rights.



                                                  3
               Although Aguilar had paid child support previously pursuant to the Bosque County

order,2 he stopped paying support shortly after the Foys filed this termination suit in

Williamson County. On August 28, 2008, the Bosque County court transferred jurisdiction over the

suit pending there involving the older children to Williamson County while retaining jurisdiction

over the suit involving the youngest child.

               The Williamson County district court held its first hearing concerning the

termination of Aguilar’s parental rights in February 2009. The court heard testimony from Aguilar,

the children’s treating psychologist, and a counselor who conducted a home study on the Foys.

On June 19, 2009, Meissner filed an Affidavit of Voluntary Relinquishment of Parental Rights

concerning the two children at issue in this case shortly before she was incarcerated in July 2009 for

committing theft by check. Meissner gave her deposition in late July 2009. When the hearing on

termination resumed and concluded in May 2010, the court admitted that deposition and heard

testimony from Kim Foy and Aguilar.

               In her deposition, Meissner described her use of alcohol and drugs. She testified that,

in the period between 2001 and 2006, she drank as much beer as she could and used marijuana daily,

cocaine twice a week, and methamphetamine twice a month. She testified that Aguilar provided her

with cocaine and marijuana and did not mind her doing drugs as long as she did not do them around

the children. She testified that she would get high and leave home and Aguilar would confront her

when she returned because he wanted her to stay and make a home. She usually left the children in


       2
        A September 2006 order from the Bosque County court showed that in 2005-06 he had paid
$4,175.18 and owed $145.16 in child support, and that he had paid $250 in medical support and
owed another $50.

                                                  4
the care of Aguilar’s relatives, but once took one of the children with her during a week-long drug

foray. She testified that when she returned from that trip, Aguilar confronted her angrily and kicked

her while she was on the floor as one of their children watched. She testified that Aguilar did not

provide her drugs during her third pregnancy, although she believed that he knew second-hand that

she was using drugs while pregnant. She testified that she relinquished her parental rights because

the children are safe and happy with the Foys, which is what she wants.

                Meissner also testified regarding Aguilar’s use of alcohol and drugs and his parenting

abilities. She testified that she first met Aguilar at a party where they did a line of cocaine together.

She testified that he had used illegal drugs recreationally on the weekends, but did not know whether

he was currently using drugs. She testified that Aguilar was a good father when he was not drunk,

and that he only drank when others were watching their children. Although she worried about the

possibility that he might be violent to others in front of the children, she did not fear that he

would harm the children. Meissner described Aguilar as a good parent who loved his kids and could

take care of them. Meissner also testified that her mother reports that Aguilar is good with their

third child during his visits. Meissner said her only concern about Aguilar having custody was that

the older children have not seen him in three years and do not know him. Assuming that there was

no risk of violence and that custody gradually transitioned, she had no problem with Aguilar getting

custody except for her fear that Aguilar would not allow the Foys or her to see the children again.

                Aguilar’s testimony contradicted some of the characterization of his past and

emphasized the stability of his present. He denied supplying Meissner with drugs or knowing that

she used any illegal drug other than marijuana, pointing out that he was in jail when she tested



                                                   5
positive for cocaine at their third child’s birth. He also denied hitting Meissner, asserting that the

case charging that he hit her was dismissed. He read aloud a portion of the Department caseworker’s

July 2006 report stating that both parents’ legal issues put the children at risk of being unsupervised

while the parents “interact[ed] with illegal activities.” He denied telling a Department caseworker

that cocaine was his “drug of choice,” but admitted that he was convicted for possession of cocaine

on what he claimed was his first time to possess cocaine. He testified that he has neither drunk

alcohol nor used illegal drugs while on probation since 2006. He said that he completed the anger-

management and parenting classes prescribed by the Department. Aguilar denied threatening the

Foys when he went to get the children in 2007, and testified that he had nothing bad to say about

them because he did not know them. He is in good standing on probation and has had only clean

urinalyses while on probation. He testified that he sees their third child every other weekend, has

no restrictions on the nature of his visits, and is current on his child-support obligations for that

child. Aguilar testified that he had held the same job for four years and lived in the same house for

three years. His wife is a medical aide who is studying to be a nurse, and they have a son together

in addition to her two daughters.

               Martha Pinto, a counselor, testified about the results of her home study examining

the propriety of the placement with the Foys in July, August, and November 2007. She met with

and observed the Foys and the children. Pinto had direct, age-appropriate interaction with the

children, who were then three and four years old. She also talked on the telephone with Kim Foy.

Pinto described the Foys’ home as “very comfortable, loving, respectful, a wonderful place for

children to be raised.” She testified that the Foys have a wonderful bond with the children, that they



                                                  6
have open communication and a good mix of nurture and structure, and that the children think of the

Foys as their parents. Pinto did not meet with the birth parents. Pinto did not inquire into Aguilar’s

suitability as a parent because she believed that inquiry was outside the scope of her responsibility

in this case. The trial court declined to consider paragraphs in her report concerning Aguilar, finding

that underlying information was not admissible. She testified that adoption by the Foys was in the

children’s best interests.

                Dr. Joseph Achacoso, the children’s treating psychologist, also testified that adoption

by the Foys would be in the children’s best interests. He testified that, when he first saw the children

in January 2007, they acted out, had a lot of anxiety, and exhibited aggressive behavior. The older

child seemed agitated, and his play was unfocused and aggressive, while the younger child had

attachment issues and was “clingy.” Achacoso testified that these behaviors were more pronounced

after visits with Aguilar and Meissner. Achacoso testified that the Foys love and set good structure

for the children. He opined that returning the children to Aguilar would be detrimental to the

children and allowing him to have visitation rights could negatively affect them. Achacoso never

met Aguilar, and conceded that he would be better equipped to render an opinion about adoption if

he had interviewed Aguilar. He agreed that the children still exhibited troubling behaviors—for

instance, the older child’s hostility—but that they had improved during two years of therapy and

under the Foys’ care.

                Kim Foy testified that Aguilar visited the children three times during the first year

they were in her custody and spoke with them on the phone a few times. She said the older child

last saw Aguilar on April 28, 2007, and the younger child last saw Aguilar on May 12, 2007. Foy



                                                   7
said that she had no notice from the Department that Aguilar had the right to take the children in

May 2007. The children last received child support payments from Aguilar in August 2007. She

testified that Aguilar had sent some Christmas presents through their grandmother and had sent

birthday presents, but not every year. She testified that the children were doing well in school and

had no physical or mental problems. She testified that, because the children had been with her

and her husband for almost four years when she testified in May 2010, letting Aguilar have any

relationship or visitation with them would disrupt their lives because they did not know him. Foy

testified that she considered the children to be her sons and that removing the children from their

home since July 2006 would not be in their best interests.

                The Williamson County district court signed the decree terminating Aguilar’s

parental rights on September 15, 2010. Aguilar appealed and filed his brief on April 27, 2011. The

Foys filed their brief on October 19, 2011.


                                             DISCUSSION

                Aguilar raises seven issues on appeal. He challenges the trial court’s admission of

an expert opinion. He also challenges the legal and factual sufficiency of the evidence to support

the trial court’s findings of acts and omissions constituting two grounds for termination of his

parental rights and its finding that termination of his parental rights is in the children’s best interests.


Admission of evidence

                Aguilar contends that the trial court erred by admitting the opinion of Achacoso, the

children’s treating psychologist, that the children’s best interests would be served if they were



                                                     8
adopted by the Foys. Aguilar argues that Achacoso’s failure to interview Aguilar or to talk to anyone

about him fatally undermined the foundation of Achacoso’s opinion regarding the best interests of

the children. See generally Tex. R. Evid. 702-05.

               We review a trial court’s decision that a witness is qualified as an expert for an

abuse of discretion. See Taylor v. Texas Dep’t of Protective & Regulatory Servs., 160 S.W.3d

641, 649 (Tex. App.—Austin 2005, pet. denied) (citing Gammill v. Jack Williams Chevrolet,

Inc., 972 S.W.2d 713, 728 (Tex. 1998)). A trial court abuses its discretion when it rules on the

admissibility of evidence in an arbitrary or unreasonable manner or without reference to guiding

legal principles or rules. Id. at 649-50 (citing Carpenter v. Cimarron Hydrocarbons Corp.,

98 S.W.3d 682, 687 (Tex. 2002)). We must uphold a trial court’s evidentiary ruling if there is

any legitimate basis in the record to support it. Id. at 650 (citing Owens-Corning Fiberglas Corp.

v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)).

               The admissibility of an opinion regarding the children’s best interest is subject

to wider discretion than opinions based on “hard” science. See id. Texas Rule of Evidence 702

provides that a witness who qualifies as an expert because of knowledge, skill, experience, training,

or education may testify as an expert if scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or resolve an issue of fact. Id. The basis of

opinions regarding the children’s best interest will vary from case to case because the relevant facts

vary among cases. Id. (citing Chacon v. Chacon, 978 S.W.2d 633, 637-38 (Tex. App.—El Paso

1998, no pet.)). The Chacon court, reviewing a custody decision after a divorce, opined that a




                                                  9
social study is designed to be comparative in nature regarding the parenting abilities of litigants.

978 S.W.2d at 638.

                Achacoso plainly stated that his opinion that the children should remain with the

Foys was premised “[p]rimarily on the factor of having a stable environment for the children.” He

had treated the children for two years, beginning shortly after their last visit with their birth parents

and continuing weekly up to at least when Achacoso testified. He described the children’s initial

agitation, aggression, and attachment issues and how those issues had eased or evolved while

they lived with the Foys. He also met with the Foys regarding issues the children faced and observed

the Foys interacting with the children. He opined that the children have improved and have stability

with the Foys. Achacoso’s opinion regarding the propriety of returning the children to Aguilar or

allowing him visitation undisputedly and admittedly is not based on any investigation of Aguilar as

a parent. Achacoso admitted that his only source for family history is Kim Foy. Achacoso conceded

that he would be better equipped to render an opinion about adoption if he had personally

interviewed the birth mother and birth father.

                We conclude that the trial court did not abuse its discretion by admitting Achacoso’s

opinion. We cannot say that Achacoso’s analysis was unreliable and inadmissible because he did

not interview the birth parents. He determined that the primary factor in promoting these children’s

best interests was stability in their environment and described why. His opinion that termination

of Aguilar’s parental rights served the children’s best interest is consistent with his emphasis

on the stability of the children’s placement with the Foys. Aguilar pointed out through cross-

examination potential flaws with Achacoso’s fact-gathering and analysis. Such weaknesses of



                                                   10
Achacoso’s opinion, if any, go to the weight accorded it by the court as factfinder and adjudicator.

The court did not abuse its discretion by admitting the opinion and evaluating its merit alongside

other evidence.


Termination

               Aguilar contends that the evidence is legally and factually insufficient to support the

findings necessary to terminate his parental rights. Aguilar challenges the trial court’s findings that

he had done the following with respect to each of the two older children:


       (D) knowingly placed or knowingly allowed the child to remain in conditions or
       surroundings which endanger the physical or emotional well-being of the child;

       (E) 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) (West Supp. 2011). He also challenges the trial court’s finding

that termination was in the best interest of the two older children. See id. § 161.001(2).


Standard of review

               Review of the sufficiency of evidence in parental-rights termination cases differs

from sufficiency reviews in most civil cases because the standard of proof is higher in termination

cases. Termination of parental rights under the Family Code requires proof by clear and convincing

evidence rather than a preponderance of the evidence. See id. § 161.001; Wetzel v. Wetzel,

715 S.W.2d 387, 389 (Tex. App.—Dallas 1986, no writ). 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



                                                  11
allegations sought to be established.” Id. § 101.007 (West 2008); In re J.F.C., 96 S.W.3d 256, 264

(Tex. 2002).

               The supreme court recited the standard of review for legal and factual sufficiency

challenges in In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (citing J.F.C., 96 S.W.3d at 266).

When the legal sufficiency of the evidence is challenged:


       [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 conclude that the
       evidence is legally insufficient.


Id. at 344-45 (citing J.F.C., 96 S.W.3d at 266). The supreme court noted that appellate courts review

disputed or conflicting evidence only when the factual sufficiency of the evidence is challenged:


       “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.” [J.F.C., 96 S.W.3d at 266]. The court of appeals should
       further explain in its opinion “why it has concluded that a reasonable factfinder could
       not have credited disputed evidence in favor of the finding.” Id. at 267.




                                                 12
J.O.A., 283 S.W.3d at 345. When conducting a factual sufficiency review, we review all of the

evidence in a neutral light. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).


Acts or omissions justifying termination

               Legally and factually sufficient evidence supports the finding that Aguilar knowingly

placed the children with a person who endangered the children’s physical or emotional well-being

or knowingly allowed the children to remain in conditions or surroundings that endangered their

physical or emotional well-being. “Endanger” means to expose to loss or injury, or to jeopardize the

child’s emotional or physical health; it is not necessary that the conduct be directed at the child

or that the child actually suffers injury. See Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,

533 (Tex. 1987). Aguilar left the older children in Meissner’s care when he went to work and to

prison. Despite the absence of evidence that she directly harmed the children, Meissner’s testimony

regarding her daily, weekly, and monthly consumption of alcohol and illegal drugs shows that her

caregiver status placed the children in danger on a daily basis. She testified that Aguilar knew of her

drug use and, therefore, the danger it presented to the children. While she typically did not take the

children with her on her drug forays, the week-long trip on which she took one of the children with

her illustrates that the children were in danger in her care. Aguilar confronted Meissner when she

returned with the child after the trip, and there was evidence that a physical altercation occurred in

front of at least one child. But there is no evidence that Aguilar removed the children from her care

thereafter or ensured that she would not be under the influence of drugs while responsible for the

children’s care and safety.




                                                  13
               Although Aguilar disputed some of Meissner’s testimony, the standards of review

requiring sufficient deference to the factfinder favor affirmance. Although the trial court did not

specify any particular endangering conduct, conditions, or surroundings near which Aguilar left

the children, Meissner’s drug use could support the findings—particularly in light of Aguilar’s

repeated arrests, some of which left the children in Meissner’s care. Under both the legal and factual

sufficiency standards of review, we must conclude that the record contains sufficient evidence to

support a choice to credit Meissner’s testimony over Aguilar’s testimony regarding his knowledge

of or role in her drug use that endangered the children. Meissner testified to extensive use of alcohol

and illegal drugs, Aguilar knew of at least one instance in which Meissner took a child along with

her during a week-long drug trip, and yet Aguilar allowed his children to stay with Meissner. We

conclude that legally and factually sufficient evidence supports the conclusion that Aguilar

knowingly allowed the children to remain in conditions or surroundings that endangered their

physical or emotional well-being, and knowingly placed the children with a person who engaged in

conduct that endangered their physical or emotional well-being.


Children’s best interest

               Next we examine whether there is legally and factually sufficient evidence that

termination is in the children’s best interest. Factors commonly used in making best-interest findings

include: (1) the child’s desires; (2) the emotional and physical needs of the child now and in the

future; (3) any 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 those individuals

to promote the best interest of the child; (6) the plans for the child by those individuals or by the

                                                  14
agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or

omissions of the parent which may indicate that the existing parent-child relationship is not a proper

one; and (9) any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d

367, 372 (Tex. 1976); Leal v. Texas Dep’t of Protective & Regulatory Servs., 25 S.W.3d 315,

321 (Tex. App.—Austin 2000, no pet.). The factors listed in Holley are not exhaustive, and other

appropriate factors may be considered. Holley, 544 S.W.2d at 372. No one factor is controlling, and

the facts of a case may mean that evidence of one factor is sufficient to support a finding that

termination is in a child’s best interests. In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001,

no pet.). The absence of some factors does not prevent the jury from finding by clear and convincing

evidence that termination is in a child’s best interest. In re C.H., 89 S.W.3d at 27. The best-interest

standard does not permit termination merely because a child might be better off living elsewhere.

In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.). The strong presumption

that a child’s best interest is served by keeping the child with his or her biological parents

disappears when confronted with evidence to the contrary. In re A.I.G., 135 S.W.3d 687, 692

(Tex. App.—San Antonio 2003, no pet.).

               Viewed in the light most favorable to the verdict, the evidence is legally sufficient

to support termination. Aguilar was incarcerated when the Department intervened and had left his

children in the custody of someone he knew was regularly using illegal drugs. When the children

were removed, they had psychological issues such as separation anxiety and aggression. Those

issues have resolved or at least eased with therapy, time away from the unsettled conditions of their

early years, and time in the Foys’ more structured environment. Meissner testified that she feared



                                                  15
the possibility that Aguilar would be violent in the future around the children. Based on Meissner’s

testimony, he hurt her “several times” and at least once kicked her in one of their children’s presence,

which raises the possibility of emotional harm to the children from witnessing such violence.

Aguilar had a fairly extensive criminal past and a history of incarceration that his more recent

stability does not remove from consideration. He is still on probation, which introduces a risk of

instability not present with the Foys. His failure to pay child support or make any effort to establish

or enforce a right to contact the children through legal channels during the three-year course of this

lawsuit is cause for concern.3 Before the judgment, the children had lived with the Foys for more

than four years—more than three without visitation or monetary support from Aguilar. Evidence

of the Foys’ care for the children, the children’s bond with the Foys, and the children’s improvement

in the Foys’ care supported the argument by the children’s attorney ad litem for termination. This

evidence allowed a reasonable trier of fact to form a firm belief or conviction that termination was

in the children’s best interest.

                When the evidence is considered neutrally on factual sufficiency review, we must take

into account the undisputed evidence of Aguilar’s parental abilities and reported reformation. Courts

have held that, in a termination suit, “acts done in the distant past, without showing a present

or future danger to a child, cannot be sufficient to terminate parental rights.” Wetzel, 715 S.W.2d

at 391 (citing Hendricks v. Curry, 401 S.W.2d 796, 800 (Tex. 1966)). Courts have also held,




        3
          Other than the temporary restraining order that expired in June 2007, we are not cited to
any orders restricting Aguilar’s right to interact with the children or any petitions or motions to
establish visitation filed by Aguilar in either the Bosque County or the Williamson County
proceedings.

                                                  16
however, that in considering the best interest of the child, factfinders are not required to ignore a

long history of dependence and abusive behavior that abates as trial approaches. See In re M.G.D.,

108 S.W.3d 508, 513-14 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (cited in Smith

v. Texas Dept. of Protective & Regulatory Servs., 160 S.W.3d 673, 681 (Tex. App.—Austin 2005,

no pet.)). The M.G.D. court held that “evidence of a recent turnaround should be determinative only

if it is reasonable to conclude that rehabilitation, once begun, will surely continue.” Id.

                The only evidence in the record regarding Aguilar’s current parenting abilities is his

and Meissner’s testimony that he is a good father who has stayed clear of crime, illegal drugs, and

alcohol since July 2006. Meissner testified that, when she was with him, Aguilar was a good father

“when he wasn’t drunk”—and even then he would only get drunk when others were watching the

children. Aguilar testified in 2010 that he had stayed in good standing on probation for almost

four years, kept the same job for four years, and lived in the same house for three years. He testified

that he is married with a new child and two step-children and that he completed all classes the

Department assigned to him when the children were first removed. He and Meissner testified that

he visits the younger child as scheduled. Aguilar testified that he is current on child support. The

only testimony as to his interaction with the younger child is that it is appropriate. Despite their past

conflict, Meissner described Aguilar as a good father who loves his kids. The evidence of Aguilar’s

behavior is unrebutted by any evidence from the Foys or their experts who did not interview or

investigate him.

                The evidence of Aguilar’s apparent reformation, however, does not erase the

evidence of his criminal past or his assault on Meissner. Though Aguilar denied hitting Meissner,



                                                   17
the trial court could reasonably choose to credit her testimony that he hurt her on several

occasions—at least once in front of one of their children. The court could reasonably credit

Meissner’s expressed concern that he could have another violent outburst, placing the children in

danger of emotional injury at the least.

                Even if the factfinder credited the testimony about Aguilar’s parenting abilities,

that evidence was not dispositive of the children’s best interest. Their treating psychologist testified

that his assessment of the children’s best interest was based primarily on providing them a stable

environment. Aguilar was incarcerated when Meissner designated the Foys to care for the children.

Aguilar saw the children three times in the next ten months, and did not see them again for three-

plus years while this case was pending in the trial court. During that time, Aguilar did not attempt

to see the children and did not pay child support for them. The record is devoid of motions or

other attempts to assert a right to visitation. There is no record of phone calls, letters, or emails to

the children from Aguilar. The only reported attempt to remain in contact with these children is

Aguilar’s sending of presents at Christmas and for some, but not all, three birthdays that passed

for each child during the time Aguilar was absent. Meanwhile, the children bonded with the

Foys and now consider the Foys to be their parents. At the time the judgment was signed, each

child had lived with the Foys for more than half his life (and that percentage has only grown

during this appeal). In contrast to their early years of instability with Aguilar and Meissner that the

children’s psychologist testified caused attachment issues and agitation, the children’s years with the

Foys have been a good mix of structure and nurture according to the evidence from the home-study

counselor and their treating psychologist. The undisputed evidence is that the Foys created a very




                                                  18
comfortable, loving, respectful, wonderful place for the children. That environment combined with

therapy had helped the children resolve some, but not all, of their psychological issues.

                While no clear explanation for the duration of this case is apparent in the record, there

is no indication that anyone prolonged the case to gain an advantage. The evidence in the record

shows, however, that the duration of the case has allowed the Foys to demonstrate that the children

are doing well emotionally and physically in their care. During that time, the relationship between

the children and Aguilar has attenuated to such a degree that they consider the Foys to be their

parents. The children’s psychologist emphasized the importance of stability, and termination of

Aguilar’s parental rights facilitates stability of the placement that has allowed the children to

overcome the instability of their early years with Aguilar and Meissner.

                Based on the record presented, the evidence is legally and factually sufficient to

permit the trial court to reasonably form a firm belief or conviction that termination of Aguilar’s

parental rights is in the children’s best interest.


                                           CONCLUSION

                Finding no error presented in the trial court’s admission of evidence or its findings

supporting the judgment, we affirm the judgment terminating Aguilar’s parental rights.




                                                 Jeff Rose, Justice

Before Justices Puryear, Rose and Goodwin

Affirmed

Filed: March 1, 2012

                                                      19
