Opinion filed June 7, 2012




                                                           In The


    Eleventh Court of Appeals
                                                        __________

                                                 No. 11-11-00361-CV
                                                     __________

                   IN THE INTEREST OF J.H. AND M.H., CHILDREN


                                   On Appeal from the County Court at Law
                                           Midland County, Texas
                                      Trial Court Cause No. FM 51,900


                                     MEMORANDUM OPINION

         S.H. appeals the trial court’s order terminating his parental rights to his two children, J.H.
and M.H.1 In a single issue, S.H. challenges the legal and factual sufficiency of the evidence
supporting the determination that termination of his parental rights was in the best interest of J.H.
and M.H. We affirm.
                                                     Background Facts
         S.H. and P.B. are the parents of J.H. and M.H.2 The Texas Department of Family and
Protective Services sought termination of their parental rights. At the time of trial, J.H. was
twelve years old, and M.H. was ten years old. The Department sought termination of S.H.’s
parental rights based on a number of statutory grounds. At the conclusion of a bench trial, the

         1
          Pursuant to Rule 9.8 of the Texas Rules of Appellate Procedure, we use aliases to refer to the minors and the minors’
parent. TEX. R. APP. P. 9.8(b)(2).
         2
          P.B. is the mother of the children. She is not a party to this appeal.
trial court found by clear and convincing evidence that termination of S.H.’s parental rights was
in the best interest of the children and that he had (1) knowingly placed or allowed the children
to remain in conditions or surroundings that endangered their physical or emotional well-being,
(2) engaged in conduct or knowingly placed the children with persons who engaged in conduct
that endangered the physical or emotional well-being of the children, (3) constructively
abandoned the children while they were in the custody of the Department, and (4) failed to
comply with the provisions of a court order that specifically established the actions necessary to
obtain the return of the children.
                                     Sufficiency of the Evidence
       Due process requires that the grounds for termination be established by clear and
convincing evidence. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This requires a 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 established. TEX. FAM. CODE ANN. § 101.007 (West
2008); In re J.P.H., 196 S.W.3d 289, 292 (Tex. App.—Eastland 2006, no pet.).                 When
conducting a legal sufficiency review, we review 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. City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005);
In re J.F.C., 96 S.W.3d at 266; In re J.P.H., 196 S.W.3d at 292. We must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so,
and we disregard all evidence that a reasonable factfinder could have disbelieved or found to
have been incredible. In re J.F.C., 96 S.W.3d at 266.
       When conducting a factual sufficiency review, we review the record as a whole,
including evidence in support of and contrary to the judgment, and give due consideration to
evidence that the trier of fact could have found to be clear and convincing. In re C.H., 89
S.W.3d 17, 25 (Tex. 2002); In re J.P.H., 196 S.W.3d at 292–93. We then determine whether the
evidence is such that a factfinder could reasonably form a firm belief or conviction about the
truth of the State’s allegations. In re C.H., 89 S.W.3d at 25; In re J.P.H., 196 S.W.3d at 293.
We also consider whether any disputed evidence is such that a reasonable factfinder could not
have resolved that evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266; In re J.P.H.,
196 S.W.3d at 293.



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                                              Analysis
       To terminate parental rights, the Department must prove that one statutory ground for
termination has occurred and that termination is in the best interest of the child. In re J.L., 163
S.W.3d 79, 84 (Tex. 2005); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); see TEX. FAM. CODE
ANN. § 161.001(2) (Vernon Supp. 2011). The focus is on the child’s best interest, not that of the
parent. Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex.
App.—Dallas 1995, no writ). No unique set of factors need be proved. In re C.J.O., 325 S.W.3d
261, 266 (Tex. App.—Eastland 2010, pet. denied). But, courts may use the non-exhaustive
Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These include, but are not limited to, (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, (8) the acts or omissions of the parent that 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. Id. Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best interest. In re
C.J.O., 325 S.W.3d at 266. A trier of fact may measure a parent’s future conduct by his or her
past conduct and determine that it is in the child’s best interest to terminate parental rights. In re
D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.).
       Teresa Valero is a professional counselor employed by Child Protective Services. She
counseled S.H. for two months. During his counseling sessions, S.H. admitted to using crack
cocaine and marihuana for ten to twelve years, using drugs in the presence of the children, and
engaging in acts of domestic violence in the presence of the children. Valero testified that S.H.
did not have the tools to parent the children and that he could not take care of them. In this
regard, M.H. had special medical needs as a result of receiving a kidney transplant. Valero
testified that S.H. made no progress as a parent during the counseling. She additionally testified
that the children were doing better in foster care than when in S.H.’s care because they were
calmer and happier, their school grades had improved, and M.H.’s health had improved.



                                                  3
       Antonio Reyes was the Family Based Safety Service Worker assigned to S.H. and the
children. He testified that the children were living in a small hotel room while in S.H.’s care that
was not big enough for them. He also testified that S.H. did not provide the children with a
stable home environment. Reyes testified that S.H. and his girlfriend used drugs in the presence
of the children and that he continued to test positive for drugs after Child Protective Services
began working with him.
       S.H. was incarcerated at the time of the hearing for drug possession and evading arrest.
He was serving a sentence of twenty months for these offenses. When asked why his children
were in foster care, S.H. responded as follows: “Because of the things that I have done, using
drugs and just not using good judgment, hanging around the wrong people. I know that is the
reason why I’m in this position now, the whole thing.”
       Stephanie Perry was the last witness to testify. She is a caseworker for the Department.
She testified that the children had been in foster care for nine months as of the time of trial.
Perry testified that she did not believe the children had a bond with S.H. She testified that the
children did not believe that S.H. provided them with a safe environment. Perry felt that S.H.
could not provide for the children in that he would be incarcerated until February 2013. She
further testified that it was in the best interest of the children for S.H.’s parental rights to be
terminated so that they could be adopted out of foster care.3
       The evidence demonstrated that S.H. could not provide J.H. and M.H. a stable home
environment or meet their physical and emotional needs. Further, there was no evidence that
S.H. would be able to sustain a stable environment for the children or to meet the children’s
needs in the future. Considering the evidence relating to S.H.’s past conduct and his failure to
improve as a parent while working with the Department, the trial court could have reasonably
concluded that he would not be able to provide the children with a stable environment or to meet
their needs in the future. Based on the evidence, the trial court could reasonably have formed a
firm belief or conviction that termination of S.H.’s parental rights would be in the best interest of
J.H. and M.H. We cannot hold that this finding is not supported by clear and convincing
evidence or outweighed by any contrary evidence. Accordingly, the evidence is legally and
factually sufficient to support the finding that termination of S.H.’s parental rights is in the best
interest of J.H. and M.H. S.H.’s sole issue is overruled.

       3
        Perry testified that the Department was open to placing the children for adoption with a relative of S.H.

                                                              4
                                       This Court’s Ruling
        The judgment of the trial court is affirmed.




                                                             TERRY McCALL
                                                             JUSTICE


June 7, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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