                                          COURT OF APPEALS
                                       EIGHTH DISTRICT OF TEXAS
                                            EL PASO, TEXAS

                                                            §
                                                                               No. 08-17-00192-CV
                                                            §
                                                                                    Appeal from
    IN THE INTEREST OF J.G.S., A CHILD                      §
                                                                                112th District Court
                                                            §
                                                                              of Pecos County, Texas
                                                            §
                                                                             (TC # P-11916-112-CV)
                                                            §

                                                  OPINION

         This appeal is from a judgment terminating the parental rights of J.V. to J.G.S., his

daughter. We affirm.

                                           FACTUAL SUMMARY

         L.S.A. (Mother) and J.V. (Father) are the biological parents of J.G.S. (Janet).1 Mother has

not had a relationship with Janet since 2007 when Janet was placed with her maternal grandparents,

G.L. and D.L. Father has never been part of Janet’s life and he was been incarcerated in Arkansas

during most of this case as the result of a sexual assault conviction. In early 2016, thirteen-year-

old Janet was residing with G.L. Janet allegedly assaulted G.L. and was detained at the Juvenile

Justice Center in San Angelo, Texas. When the juvenile probation office informed G.L. that it


1
  To protect the identity of the child, J.G.S., the opinion will refer to her by the fictitious name, “Janet.” See
TEX.R.APP.P. 9.8(b)(2). Her parents will be referred to by initials or simply as Mother and Father where indicated.
Her maternal grandmother, G.L., will be referred to by her initials. Her maternal grandfather, L.S., will be referred to
by his initials.
intended to recommend that the charge against Janet be dismissed, G.L. refused to accept Janet

back into her home. Janet remained in detention while the Texas Department of Family and

Protective Services sought another placement for her. On March 1, 2016, the Department filed a

termination petition against Mother, and after determining Father’s identity, it filed an amended

petition seeking to establish his paternity and terminate his parental rights as well. The amended

petition sought termination of Father’s parental rights under Section 161.001(b)(1)(L) based on an

allegation that Father had been convicted of sexual assault, and under Section 161.001(b)(1)N)

based on an allegation that Father had constructively abandoned Janet. See TEX.FAM.CODE ANN.

§ 161.001(b)(1)(L), (N)(West Supp. 2017). Shortly before trial in August 2016, Janet was placed

with paternal relatives in Arkansas. Following the final hearing, the trial court terminated the

parental rights of both Mother and Father. Father filed notice of appeal.2

                        TERMINATION GROUNDS AND BEST INTEREST
                                UNDER SECTION 161.001

             Father raises three issues challenging the legal and factual sufficiency of the evidence

     supporting the trial court’s findings related to the termination grounds and best interest of the

     child. In Issues One and Two, Father attacks the legal and factual sufficiency of the evidence

          supporting the predicate termination grounds found by the trial court under Section

    161.001(b)(1)(L) and (N). In Issue Three, Father challenges the legal and factual sufficiency of

          the evidence supporting the best interest finding made under Section 161.001(b)(2).

          Parental rights may be involuntarily terminated through proceedings brought under Section

161.001 of the Texas Family Code. See TEX.FAM.CODE ANN. § 161.001. Under this provision,

the petitioner must (1) establish one or more of the statutory acts or omissions enumerated as

grounds for termination, and (2) prove that termination is in the best interest of the children. See


2
    Mother did not appeal.

                                                   -2-
id. Both elements must be established and termination may not be based solely on the best interest

of the child as determined by the trier of fact. Texas Department of Human Services v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987); In the Interest of A.B.B., 482 S.W.3d 135, 138 (Tex.App.--El Paso

2015, pet. dism’d w.o.j.). Only one predicate finding under Section 161.001(b)(1) is necessary to

support a judgment of termination when there is also a finding that termination is in the child’s

best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We will affirm the termination order

if the evidence is both legally and factually sufficient to support any alleged statutory ground the

trial court relied upon in terminating the parental rights as well as the finding of best interest. J.S.

v. Texas Department of Family and Protective Services, 511 S.W.3d 145, 159 (Tex.App.--El Paso

2014, no pet.).

                                         Standards of Review

          When reviewing the legal sufficiency of the evidence in a termination case, we consider

all of the evidence in the light most favorable to the trial court’s finding, “to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In

the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d 256, 266

(Tex. 2002); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We give deference to the fact

finder’s conclusions, indulge every reasonable inference from the evidence in favor of that finding,

and presume the fact finder resolved any disputed facts in favor of its findings, so long as a

reasonable fact finder could do so. In the Interest of J.P.B., 180 S.W.3d at 573. We disregard any

evidence that a reasonable fact finder could have disbelieved, or found to have been incredible,

but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re J.F.C., 96 S.W.3d

at 266.




                                                 -3-
       In a factual sufficiency review, the inquiry is whether the evidence is such that a fact finder

could reasonably form a firm belief or conviction about the challenge findings. See In re J.F.C.,

96 S.W.3d at 266. We must give due consideration to evidence that the fact finder could

reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. A court of

appeals should consider whether disputed evidence is such that a reasonable fact finder could not

have resolved that disputed evidence in favor of its finding. Id. If the disputed evidence that a

reasonable fact finder could not have credited in favor of the finding is so significant that a fact

finder could not reasonably have formed a firm belief or conviction, then the evidence is factually

insufficient. Id.

                                    Constructive Abandonment

       We will begin by addressing Issue Two. In this issue, Father argues that the evidence is

legally and factually insufficient to support termination of his parental rights under Section

161.001(b)(1)(N) of the Family Code. See TEX.FAM.CODE ANN. § 161.001(b)(1)(N). If the

evidence is legally and factually sufficient to support this termination ground, it is not necessary

to address the sufficiency challenge raised in Issue One regarding the finding under Section

161.001(b)(1)(L).

       To establish constructive abandonment under section 161.001(b)(1)(N), the Department

was required to prove by clear and convincing evidence that: (1) Father had constructively

abandoned Janet who had been in the Department’s permanent or temporary managing

conservatorship for not less than six months; (2) the Department made reasonable efforts to return

Janet to Father; (3) Father had not regularly visited or maintained significant contact with Janet;

and (4) Father had demonstrated an inability to provide Janet with a safe environment. See

TEX.FAM.CODE ANN. § 161.001(b)(1)(N).



                                                -4-
       Father concedes that Janet was in the permanent or temporary conservatorship of the

Department for not less than six months. Further, he has failed to challenge the evidence

supporting the trial court’s findings that he has not regularly visited or maintained significant

contact with Janet and he has demonstrated an inability to provide her with a safe environment.

Father’s sufficiency argument is restricted to the element regarding the Department’s reasonable

efforts to return Janet to him. More specifically, he argues that the evidence is insufficient because

the Department failed to create a service plan for him.

       The Fort Worth Court of Appeals has held that the “reasonable efforts” element of Section

161.001(b)(1)(N) does not apply when the parent is incarcerated. See In re D.T., 34 S.W.3d 625,

633 (Tex.App.--Fort Worth 2000, pet. denied). Other courts have stopped short of a wholesale

adoption of this holding, but they have observed that this element “may not apply” when the parent

is incarcerated. See In re A.T.L., No. 04-15-00379-CV, 2015 WL 6507807, at *4 (Tex.App.--San

Antonio Oct. 28, 2015, pet. denied); In re A.Q.W., 395 S.W.3d 285, 288 (Tex.App.--San Antonio

2013, no pet.); In re K.J.T.M., No. 06-09-00104-CV, 2010 WL 1664027, at *3 (Tex.App.--

Texarkana Apr. 27, 2010, no pet.). Reasonable efforts to return a child to a parent “under section

161.001(1)(N)(i) does not necessarily mean the child must be physically delivered to the

incarcerated parent.” In re A.T.L., No. 04-15-00379-CV, 2015 WL 6507807 (Tex.App.--San

Antonio Oct. 28, 2015, pet. denied), quoting In re D.S.A., 113 S.W.3d 567, 573 (Tex.App.--

Amarillo 2003, no pet.).

       We will assume for the sake of analysis that this element applies despite Father’s

incarceration. Father is correct that the Department’s implementation of a service plan is generally

considered a reasonable effort to return a child. See H.N. v. Department of Family and Protective

Services, 397 S.W.3d 802, 809 (Tex.App.--El Paso 2013, no pet.). The case law does not hold,



                                                -5-
however, that such evidence is absolutely required to prove constructive abandonment under

Section 161.001(b)(1)(N).     The Department’s efforts to place the child with relatives may

constitute legally and factually sufficient evidence to support the trial court’s finding that the

Department made reasonable efforts. See H.N., 397 S.W.3d at 810. The trial court entered an

order in January 2017 establishing Father as Janet’s father, and the Department admittedly did not

create a service plan for him. The final hearing took place in August 2017. The Department

undertook efforts to place Janet with relatives on both the maternal and paternal sides of her family,

and they eventually succeeded in placing Janet with a paternal aunt and uncle in Arkansas only

one month before trial. A question remained at the time of trial whether Janet can remain in this

placement due to an ongoing Medicaid benefits issue which is preventing Janet from obtaining

required medication, but the evidence shows that the Department has made substantial efforts to

resolve the issue. We conclude that the evidence is legally and factually sufficient to support the

trial court’s finding that the Department made reasonable efforts to return the child to Father

through a surrogate. Accordingly, Issue Two is overruled. It is unnecessary to address Issue One.

                                            Best Interest

       In Issue Three, Father challenges the legal and factual sufficiency of the evidence

supporting the best interest finding made under Section 161.001(b)(2) of the Family Code. A

determination of best interest necessitates a focus on the child, not the parent. See In the Interest

of B.C.S., 479 S.W.3d 918, 927 (Tex.App.--El Paso 2015, no pet.); In the Interest of R.F., 115

S.W.3d 804, 812 (Tex.App.--Dallas 2003, no pet.). There is a strong presumption that it is in the

child’s best interest to preserve the parent-child relationship. In re B.C.S., 479 S.W.3d at 927. The

Texas Supreme Court has enumerated certain factors which should be considered: the child’s

desires; the child’s emotional and physical needs now and in the future; the emotional and physical



                                                -6-
danger to the child now and in the future; the parenting abilities of the individuals seeking custody;

the programs available to assist those individuals to promote the child’s best interest; the plans for

the child by those individuals or the agency seeking custody; the stability of the home or proposed

placement; the parent’s acts or omissions that may indicate that the existing parent-child

relationship is not a proper one; and any excuse for the parent’s acts or omissions. Holley v.

Adams, 544 S.W.2d 367, 372 (Tex. 1976)(“the Holley factors”). We also must bear in mind that

permanence is of paramount importance in considering a child’s present and future needs. In re

B.C.S., 479 S.W.3d at 927.

       The first factor is the desires of the child. Janet was fourteen years of age when the trial

occurred in August 2017. The evidence shows that Janet did not know who her father was prior

to entry of the parentage order signed in January 2017 and she has no relationship with or

emotional bond to Father. Janet is well-cared for by her aunt and uncle, is doing well in her

placement, and she wants to remain in the home. This factor weighs in favor of the best interest

finding. See In re J.M. and L.M., 156 S.W.3d 696, 706 (Tex.App.--Dallas 2005, no pet.).

       The next two factors are the child’s emotional and physical needs now and in the future,

and the emotional and physical danger to the child now and in the future. The need for permanence

is a paramount consideration for a child’s present and future physical and emotional needs.

Edwards v. Texas Department of Protective & Regulatory Services, 946 S.W.2d 130, 138

(Tex.App.--El Paso 1997, no pet.), disapproved of on other grounds by In re J.F.C., 96 S.W.3d

256 (Tex. 2002); In re U.P., 105 S.W.3d 222, 230 (Tex.App.--Houston [14th Dist.] 2003, pet.

denied)(stating that children need permanency and security). A parent’s incarceration is relevant

to his ability to the meet the child’s present and future physical and emotional needs. In re M.D.S.,

1 S.W.3d 190, 200 (Tex.App.--Amarillo 1999, no pet.). Further, a parent’s incarceration at the



                                                -7-
time of trial makes the child’s future uncertain. Id. Father is currently incarcerated for sexual

assault and he has not made any effort to have a relationship with Janet except for one unauthorized

attempt to contact her via Facebook which resulted in Janet’s admission to a psychiatric hospital.

Based on this evidence, the trial court could have found that Father is unable to provide for Janet’s

emotional and physical needs now and in the future. Likewise, Father’s lack of contact with Janet

exposed her to emotional danger now and will continue to do so in the future. See In re R.A.G., -

--- S.W.3d ---, 2017 WL 105131, at *3 (Tex.App.--El Paso Jan. 11, 2017, no pet.)(“[A] fact finder

may infer that a parent’s lack of contact with the child and absence from the child’s life endangered

the child’s emotional well-being.”). We conclude that the second and third factors weigh heavily

in support of the best interest finding.

        The fourth factor is the parenting abilities of the individuals seeking custody. In reviewing

the parenting abilities of a parent, a factfinder can consider the parent’s past neglect or past

inability to meet the physical and emotional needs of the children. D.O. v. Texas Department of

Human Services, 851 S.W.2d 351, 356 (Tex.App.--Austin 1993, no writ), disapproved of on other

grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002). The Department did not create a service plan

for Father, but the record shows that during the seven-month period after the trial court signed the

parentage order, Father has not made any effort to establish a relationship with Janet or meet her

physical and emotional needs. The trial court could have inferred from this evidence that Father

has poor parenting abilities. This factor weighs in favor of the best interest findings.

        The fifth factor examines the programs available to assist those individuals to promote the

child’s best interest. There is no evidence of any programs available to assist Father. This factor

is neutral.




                                                -8-
       We will consider the sixth and seventh factors together. The sixth factor examines the

plans for the child by those individuals or the agency seeking custody. The seventh factor is the

stability of the home or proposed placement. The factfinder may compare the parent’s and the

Department’s plans for the child and determine whether the plans and expectations of each party

are realistic or weak and ill-defined. D.O., 851 S.W.2d at 356. Father did not offer any plan for

Janet. The Department’s plan for Janet is termination of Father’s parental rights and to allow Janet

to remain in her current placement. Janet is doing well, her aunt and uncle are committed to

meeting her emotional and physical needs, and the placement is a stable one provided that the

Medicaid benefits issue is resolved. The evidence also showed that the Department has worked

diligently to resolve the Medicaid benefits issue and it appeared at the time of trial that the matter

was close to a resolution. From this evidence, the trial could find that the placement will allow

Janet an opportunity for stability and permanence. This factor weighs in favor of best interest.

       The eighth factor is the parent’s acts or omissions that may indicate that the existing parent-

child relationship is not a proper one. Father has a conviction for sexual assault and he is

incarcerated. He has not made any effort to establish a relationship with Janet or to provide for

her physical and emotional needs. Given Father’s inability to provide a stable home for Janet or

meet her needs, the court could have found that the existing parent-child relationship is not a proper

one.

       The ninth factor is whether there is any excuse for the parent’s acts or omissions. Father’s

brief does not offer any excuses for his acts and omissions. This factor supports the best interest

finding.




                                                -9-
       Having reviewed all of the Holley factors, we conclude that the evidence is both legally

and factually sufficient to establish a firm conviction in the mind of the trial court that termination

of Father’s parental rights is in the child’s best interest. Issue Three is overruled.

                        PERMANENT MANAGING CONSERVATOR

       In Issue Four, Father argues that the evidence is legally and factual insufficient to support

the appointment of the Department as the permanent managing conservator of Janet under Section

153.371 of the Texas Family Code. This statute lists the rights and duties of a non-parent appointed

as the child’s sole managing conservator, but it does not establish the standard for the appointment

of the managing conservator. See TEX.FAM.CODE ANN. § 153.371 (West Supp. 2017). In this

case, the trial court terminated the parental rights of both parents. Section 161.207 provides that

if trial court terminates the parent-child relationship with respect to both parents, the court shall

appoint a suitable, competent adult, the Department of Family and Protective Services, or a

licensed child-placing agency as managing conservator of the child. TEX.FAM.CODE ANN. §

161.207(a). Father’s challenge to the conservatorship appointment was subsumed in the issues

related to the termination of his parental rights. See In re D.N.C., 252 S.W.3d 317, 318 (Tex.

2008). Issue Four is overruled. The judgment of the trial court terminating Father’s parental rights

to Janet is affirmed.



February 14, 2018
                                       ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.




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