COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00241-CV
IN THE INTEREST OF M.S., JR., A
CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-101667-15
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MEMORANDUM OPINION1
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I. INTRODUCTION
This is an ultra-accelerated appeal2 in which Appellant appeals the
termination of his parental rights to his son, Mark.3 In four issues, Appellant
1
See Tex. R. App. P. 47.4.
2
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal is filed).
3
See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to
minors in an appeal from a judgment terminating parental rights).
challenges the sufficiency of the evidence to support the trial court’s constructive-
abandonment, prolonged-incarceration, and best-interest findings. Appellant
also argues that he was not given proper notice regarding the trial court’s court-
ordered services finding. We will affirm.
II. BACKGROUND
Brittney Newman, a conservatorship worker for the Texas Department of
Family and Protective Services (Department), testified at the termination trial
that Mark was born in March of 2015, and that the Department had been
appointed permanent managing conservatorship of Mark since April 20, 2015.
According to Newman, Mark was placed in foster care because he and his
biological mother had tested positive for methamphetamine and because the
mother was unable to provide appropriate placement with relatives. Newman
averred that at the time of Mark’s placement with the Department, there
was an alleged father—not Appellant—and that DNA tests later revealed this
man was not Mark’s biological father. By Newman’s account, Appellant and the
original alleged father informed the Department that Appellant could be Mark’s
biological father. After failing to attend the first scheduled DNA test, later DNA
testing revealed that Appellant is Mark’s biological father.
On July 12, 2016, Appellant signed a waiver of service acknowledging his
paternity and visited Mark for the first and only time. Three days later, police
arrested Appellant for DWI.
2
Newman stated that on August 30, 2016, the trial court terminated Mark’s
mother’s parental rights, and the final order included court-ordered services for
Appellant. Newman averred that Appellant had been present at Mark’s mother’s
termination trial with counsel and that he agreed to the court-ordered services.
Part of the court-ordered services required Appellant to obtain safe, stable, and
appropriate housing for Mark, but Newman averred that Appellant had not done
so. Appellant was also ordered to obtain stable employment, which Newman
said that he had not done. Because Appellant has a criminal history that
includes numerous convictions for possession of controlled substances,
Appellant was also ordered to submit to drug testing, but because he was jailed
shortly after the court’s order, according to Newman, Appellant had never
submitted to the court-ordered drug testing—although Appellant did pass one
drug test prior to the court-ordered services. Newman said that Appellant also
failed to participate in and successfully complete court-ordered counseling and
parenting classes.
Newman averred that in addition to being jailed for the DWI, Appellant was
eventually incarcerated for a separate charge of burglary. Newman further
averred that even though Appellant had the ability to visit Mark twice weekly
between the time he was in jail and his ultimate incarceration, he had only visited
Mark the one initial time. Newman also said that Appellant had failed to maintain
court-ordered contact with the Department.
3
Newman stated that she had concerns about Appellant’s decision making
because despite knowing that he was Mark’s biological father, he admittedly still
chose to drive intoxicated. She also averred that she was concerned that
Appellant could not provide a safe and stable environment for Mark due to
Appellant’s drug use, lack of employment, and the instability from consistently
being in and out of confinement. Newman said that through his actions, including
not visiting Mark when he had the opportunity, Appellant had never indicated that
he wanted to maintain a relationship with Mark.
Regarding a possible placement for Mark, Newman averred that Appellant
provided her with two options: his parents or his cousin. But Newman said that
Appellant’s parents told her that they were too old to care for Mark and that they
were unwilling to child-proof their home. Newman stated that the cousin initially
indicated that she would be willing to care for Mark but that the cousin eventually
stopped communicating with the Department.
Newman said that Mark was currently placed in a foster home where he
had been for over two years and that the foster father was in attendance at trial.
By Newman’s account, Mark was initially underweight because of being
prematurely born and the effects of methamphetamine but that now under foster
care, Mark is “doing very well, very healthy.” Newman also said that Mark was
initially developmentally delayed but that now he was at an appropriate
developmental state. Newman further averred that Mark’s foster parents had
provided proper medical care for Mark and that they were meeting his emotional
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and developmental needs. She also said that the foster home was a loving
home and that the foster parents had other children in the home whom Mark has
bonded with. According to Newman, Mark has bonded with the foster parents
and calls them “mommy and daddy.” By Newman’s account, the foster family is
the only family Mark has ever known.
Newman testified that it was the Department’s view that Appellant’s
parental rights to Mark should be terminated and that it would be in Mark’s best
interest if the trial court did so. She also said that she believed it would be
traumatic to Mark to now separate him from the foster family that he had bonded
with and that Mark barely knows Appellant. Newman stated that it was the
Department’s plan that the trial court continue the Department’s appointment as
permanent managing conservator of Mark “pending a hopeful adoption with the
foster parents.”
In addition to Newman’s testimony, the Department also introduced a
signed statement by Appellant wherein he acknowledged his right to attend the
trial but he declined to do so. The Department also introduced a certified copy of
Appellant’s burglary conviction demonstrating that he is currently serving a four-
year sentence. The Department further introduced certified copies of Appellant’s
convictions for DWI misdemeanor repetition, for possession of
methamphetamine, and for possession of cocaine.
The trial court found that Appellant had constructively abandoned Mark,
that Appellant had failed to complete court-ordered services, and that Appellant
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had been convicted of an offense for which he is likely to be incarcerated for a
period of two years or more. See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (O),
(Q) (West Supp. 2017). The trial court also found that termination of Appellant’s
paternal rights to Mark was in Mark’s best interest. See id. § 161.001(b)(2). This
appeal followed.
III. DISCUSSION
A. Burden of Proof and Standards of Review
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West Supp. 2017); Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to
sever permanently the relationship between a parent and a child, it must first
observe fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex.
2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–
92 (1982)). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d
796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.
Termination decisions must be supported by clear and convincing
evidence. See Tex. Fam. Code Ann. §§ 161.001(b), 161.206(a); E.N.C., 384
S.W.3d at 802. Due process demands this heightened standard because “[a]
parental rights termination proceeding encumbers a value ‘far more precious
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than any property right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S.
at 758–59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see
also E.N.C., 384 S.W.3d at 802. Evidence is clear and convincing if it “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
2014); E.N.C., 384 S.W.3d at 802.
For a trial court to terminate a parent-child relationship, the Department
must establish by clear and convincing evidence that the parent’s actions satisfy
one ground listed in family code section 161.001(b)(1) and that termination is in
the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384
S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must
be established—termination may not be based solely on the best interest of the
child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Markd,
727 S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex.
App.—Fort Worth 2012, no pet.).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the Department proved the
challenged ground for termination. In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005). We review all the evidence in the light most favorable to the finding and
judgment. Id. We resolve any disputed facts in favor of the finding if a
reasonable factfinder could have done so. Id. We disregard all evidence that a
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reasonable factfinder could have disbelieved. Id. We consider undisputed
evidence even if it is contrary to the finding. Id. That is, we consider evidence
favorable to termination if a reasonable factfinder could, and we disregard
contrary evidence unless a reasonable factfinder could not. See id.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses because that is the factfinder’s province. Id. at
573–74. And even when credibility issues appear in the appellate record, we
defer to the factfinder’s determinations as long as they are not unreasonable. Id.
at 573.
We are required to perform “an exacting review of the entire record” in
determining whether the evidence is factually sufficient to support the termination
of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In
reviewing the evidence for factual sufficiency, we give due deference to the
factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated one of the provisions of section 161.001(b)(1) and that
termination of the parent-child relationship would be in the best interest of the
child. See Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re C.H., 89 S.W.3d 17,
28 (Tex. 2002). 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
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conviction in the truth of its finding, then the evidence is factually insufficient.
H.R.M., 209 S.W.3d at 108.
B. Notice Regarding Appellant’s Court-Ordered Services
In his second issue, Appellant argues that the Department failed to provide
him with adequate notice that if he failed to complete his court-ordered services,
the trial court could terminate his parental rights to Mark. Although Appellant
does not use the terminology of due process, his argument on appeal is a due
process complaint. See In re M.A.P., No. 02-11-00484-CV, 2012 WL 2036457,
at *19 (Tex. App.—Fort Worth June 7, 2012, no pet.) (mem. op.). We note that
the record indicates that Appellant, along with counsel, was present at the
termination trial when the mother’s parental rights to Mark were terminated and
Appellant’s court-ordered services were pronounced; that the Department
pleaded, in its petition seeking to terminate Appellant’s paternal rights, that
Appellant had failed to comply with his court-ordered services; that Appellant
declined to attend the termination hearing regarding his parental rights to Mark;
and that he was represented at that termination trial by counsel but never
complained of a lack of notice to the trial court.
A parent waives any potential due process claim pertaining to court-
ordered services when the parent fails to assert a violation of due process at trial.
See Tex. R. App. P. 33.1(a)(1); In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003),
cert. denied, 541 U.S. 1043 (2004); In re U.P., 105 S.W.3d 222, 237 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied) (op. on reh’g); Swinney v. Mosher, 830
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S.W.2d 187, 196–97 (Tex. App.—Fort Worth 1992, writ denied). Appellant did
not assert a due process violation or otherwise bring to the trial court’s attention a
lack of notice concerning his court-ordered services. Thus, Appellant has waived
this argument for our review. M.A.P., 2012 WL 2036457, at *19 (“[B]ecause
Father did not assert a violation of substantive due process at trial, he waived
that issue for appeal.”). We therefore overrule Appellant’s second issue.
Because only one finding under section 161.001(b)(1) is necessary to
support a trial court’s judgment of termination, and because Appellant has failed
to preserve any argument regarding the trial court’s finding that he failed to
comply with his court-ordered services, we need not address his first and third
issues regarding constructive abandonment or whether he has been convicted of
an offense in which he is likely to be incarcerated for a period of two years or
more. See Tex. Fam. Code Ann. § 161.001(b)(1); see also Tex. Dep’t of Human
Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (op. on reh’g).
C. Best-Interest Finding
In his fourth issue, Appellant argues that there is insufficient evidence to
support the trial court’s finding that it was in Mark’s best interest that Appellant’s
paternal rights to Mark be terminated. We disagree.
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). We review
the entire record to determine the child’s best interest. In re E.C.R., 402 S.W.3d
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239, 250 (Tex. 2013). The same evidence may be probative of both the
subsection (1) ground and best interest. Id. at 249; C.H., 89 S.W.3d at 28.
Nonexclusive factors that the trier of fact in a termination case may also
use in determining the best interest of the child include the following: (A) the
desires of the child; (B) the emotional and physical needs of the child now and in
the future; (C) the emotional and physical danger to the child now and in the
future; (D) the parental abilities of the individuals seeking custody; (E) the
programs available to assist these individuals to promote the best interest of the
child; (F) the plans for the child by these individuals or by the agency seeking
custody; (G) the stability of the home or proposed placement; (H) the acts or
omissions of the parent which may indicate that the existing parent-child
relationship is not a proper one; and (I) any excuse for the acts or omissions of
the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R.,
402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we consider,
among other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807. These
factors are not exhaustive, and some listed factors may be inapplicable to some
cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one
factor may be sufficient in a particular case to support a finding that termination is
in the best interest of the child. Id. On the other hand, the presence of scant
evidence relevant to each factor will not support such a finding. Id.
With regard to Mark’s desires, the record reflects that Mark was
approximately two years old at the time of Appellant’s termination trial and that
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Mark did not testify. Although, through counsel, Appellant expressed a desire to
remain Mark’s legal father, Newman testified that Appellant had only visited Mark
once despite being given more opportunities to visit Mark. Newman also testified
that Mark is bonded with his foster parents and his foster siblings and that Mark’s
foster parents are taking good care of Mark and meeting all his medical and
developmental needs. See In re S.R., 452 S.W.3d 351, 369 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied) (“When children are too young to express
their desires, the factfinder may consider whether the children have bonded with
the foster family, are well-cared for by them, and have spent minimal time with a
parent.”); Smith v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 673,
682 (Tex. App.—Austin 2005, no pet.) (stating that best-interest focus is on the
children, not the needs and desires of the parent). The trial court was entitled to
find that this factor weighed in favor of terminating Appellant’s parental rights to
Mark.
With regard to Mark’s emotional and physical needs now and in the future,
although Mark initially had special needs when he was first placed in foster care,
he no longer has those needs because his foster parents have provided the care
necessary to bring Mark to an appropriate nutritional and developmental state.
Nonetheless, Mark’s basic needs include food, shelter, and clothing; routine
medical and dental care; a safe, stimulating, and nurturing home environment;
and friendships and recreational activities appropriate to his age. Newman
testified that Appellant has not demonstrated an ability to provide a stable living
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environment for Mark; that Appellant has not demonstrated an ability to maintain
stable employment; that Appellant, despite knowing he was Mark’s father, still
chose to commit a new offense of DWI which resulted in him being jailed; and
that Appellant is now incarcerated and serving a four-year sentence. The trial
court was entitled to find that this factor weighed in favor of terminating
Appellant’s rights to Mark.
With regard to Appellant’s parenting abilities, the record demonstrates that
Appellant has a lengthy criminal record including charges for burglary, DWI
repetition, and multiple drug offenses. Newman testified that despite being
informed that he was Mark’s biological father, Appellant nonetheless still chose to
commit another DWI offense. Furthermore, Appellant is currently serving a four-
year sentence for burglary and has failed to demonstrate that he can provide for
Mark’s financial, housing, and medical needs. In contrast, Newman testified that
Mark’s foster parents are providing him with proper food and shelter as well as
proper medical care. Newman also said that the foster parents are providing
Mark with a loving and nurturing home environment. The trial court was entitled
to find that this factor weighed in favor of terminating Appellant’s parental rights
to Mark.
Regarding programs available to assist Appellant to promote the best
interest of Mark, the record indicates that Appellant failed to complete most of his
court-ordered services. The trial court was entitled to find that this factor
weighed in favor of terminating Appellant’s parental rights to Mark.
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With regard to the plans for the children by the individuals seeking custody
and the stability of the home or proposed placement, Appellant has not indicated
the ability to provide a stable living environment for Mark, Appellant has not
indicated the ability to provide financially for Mark, nor has Appellant indicated his
ability to stay out of jail or prison. Furthermore, Appellant did not provide any
evidence regarding any future plans he may have for Mark. In contrast, Newman
testified that Mark was bonded with his foster family, that they had provided
proper medical and developmental care for him, and that the Department was
seeking termination in hopes that the foster family intended to adopt Mark. The
trial court was entitled to find that this factor weighed in favor of terminating
Appellant’s parental rights to Mark.
As for any excuse for the acts or omissions of the parent, Appellant did not
present any evidence at trial indicating why he had failed to complete his court-
ordered services, he did not provide any evidence as to why he failed to visit
Mark when he was given the opportunity, and he did not provide any evidence as
to why he chose to commit another DWI after he learned of his paternity.
Newman did testify that Appellant admitted to committing the DWI but that
Appellant only expressed that there was nothing he could do about having
already committed it. The trial court was entitled to find that this factor weighed
in favor of terminating Appellant’s parental rights to Mark.
Viewing all the evidence in the light most favorable to the best-interest
finding and considering the nonexclusive Holley factors, we hold that the trial
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court could have reasonably formed a firm conviction or belief that termination of
the parent-child relationship between Appellant and Mark was in Mark’s best
interest, and we therefore hold the evidence legally sufficient to support the trial
court’s best-interest finding. See Tex. Fam. Code Ann. § 161.001(b)(2); Jordan
v. Dossey, 325 S.W.3d 700, 733 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied) (holding evidence legally sufficient to support best-interest finding when
most of the best-interest factors weighed in favor of termination); In re A.L., No.
08-17-00048, 2017 WL 3225030, at *6–8 (Tex. App.—El Paso July 31, 2017, no
pet.) (holding evidence legally sufficient to support best-interest finding because
child was bonded to foster parents, and mother demonstrated an inability to meet
child’s physical needs); In re A.B., 412 S.W.3d 588, 602–07 (Tex. App.—Fort
Worth 2013) (op. on reh’g) (holding evidence legally sufficient to support best-
interest finding because father exhibited an inability to maintain a suitable home
for children, father never displayed ability to change his behavior, children had
improved while in foster care, and foster parents wanted to adopt children).
Similarly, reviewing all the evidence with appropriate deference to the
factfinder, we hold that the trial court could have reasonably formed a firm
conviction or belief that termination of the parent-child relationship between
Appellant and Mark was in Mark’s best interest, and we therefore hold that the
evidence is factually sufficient to support the trial court’s best-interest finding.
See Tex. Fam. Code Ann. § 161.001(b)(2); A.L., 2017 WL 3225030, at *8
(holding evidence factually sufficient to support best-interest finding because
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child did not have strong emotional attachment to mother); A.B., 412 S.W.3d at
602–07 (holding evidence factually sufficient to support best-interest finding
because father exhibited an inability to maintain a suitable home for children,
father never displayed ability to change his behavior, children had improved while
in foster care, and foster parents wanted to adopt children). We overrule
Appellant’s fourth issue.
IV. CONCLUSION
Having held that Appellant waived his second issue and thus not needing
to address his first and third issues, and having overruled his fourth issue, we
affirm the trial court’s judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: SUDDERTH, C.J.; MEIER and GABRIEL, JJ.
DELIVERED: January 4, 2018
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