COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00180-CV
IN THE INTEREST OF S.S.A., A CHILD
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION1
I. INTRODUCTION
Appellant Frank2 appeals the trial court’s order terminating the parent-child
relationship between S.S.A. and himself. In six issues, Frank challenges the
legal and factual sufficiency of the evidence supporting each of the grounds the
trial court found for termination under Texas Family Code section 161.001(1). 3
1 See Tex. R. App. P. 47.4. 2 Because this case involves the termination of parental rights to a minor, we use aliases or initials to describe the parties. See Tex. R. App. P. 9.8. 3 See Tex. Fam. Code Ann. § 161.001(1) (West Supp. 2011). He also challenges the legal and factually sufficiency of the evidence supporting
the trial court’s finding that termination of his parental rights regarding S.S.A. was
in her best interest.4 We will affirm.
II. BACKGROUND
This case originated in an alleged sexual assault of S.S.A. The alleged
assailant was the roommate of S.S.A.’s biological mother, Kim, with whom S.S.A.
lived in Denton, Texas. The ensuing investigation involved the Texas
Department of Family and Protective Services (CPS or Department) seeking the
termination of Frank’s and Kim’s parental rights to S.S.A.
When the termination proceedings began in November of 2009, S.S.A.
was four years old, and CPS had not yet located Frank. Due to travel issues,
Kim, who had now moved to East Texas with a boyfriend, was also not at the
initial hearing.5 She was, however, represented by counsel. At that time, CPS
asked that S.S.A. be temporarily placed with her maternal aunt and that the trial
court order an expedited home study of S.S.A.’s maternal grandfather, who lives
in Florida, so that she might be placed with him. S.S.A. had lived with him for
several months when she was a baby. The trial court granted CPS’s requests.
4 See Tex. Fam. Code Ann. § 161.001(2) (West Supp. 2011). 5 The record is replete with evidence that Kim would move frequently, usually coinciding with her having a new boyfriend.
2 The trial court held a status hearing in June 2010.6 At the hearing, CPS
revealed that it had finally contacted Frank—located in an Iowa prison. After
receiving notification of CPS’s intention to seek termination of his paternal rights
to S.S.A., Frank answered by sending a letter to CPS seeking paternity testing
and the appointment of counsel. The trial court ordered paternity testing.
At the time of an August 5, 2009 permanency hearing, Kim had also been
incarcerated in Iowa and S.S.A. had been placed with “her grandmother.” CPS
asked for S.S.A. to remain there, pending the scheduled paternity testing. The
trial court held another permanency hearing on November 22, 2010. At that
hearing, the trial court approved S.S.A.’s placement with her maternal
grandfather.
On March 17, 2011, the trial court held another permanency hearing.
Frank, now represented by counsel, was still incarcerated in Iowa. Although Kim
had been released from incarceration in the fall of 2010, she had not returned to
Texas and was not at the hearing. A CPS investigator testified that tests
confirmed Frank as S.S.A.’s biological father. Frank’s attorney explained that
although he had initially spoken with Frank on the phone, Frank had since been
moved to a different Iowa penal facility, and that he had since had difficulty
contacting Frank. The trial court ordered that S.S.A. remain with her maternal
6 There is evidence in the record that hearings other than those mentioned in this opinion were also held in conjunction with this termination suit.
3 The trial court held the termination trial on May 2, 2011. Kim’s attorney
testified that despite some contact with Kim earlier in the proceedings, and Kim’s
request to attend the termination trial, Kim had not responded to recent
notifications of the trial date and Kim had also not responded to repeated
attempts to contact her through her attorney. Frank’s court-appointed attorney
stated that he had recently spoken with Frank and that he wanted to attend the
trial, but that due to his incarceration in Iowa, Frank was unable to attend the
hearing.7 Due to the absence of both parents, Kim’s attorney moved to withdraw
Kim’s earlier request for a jury trial, and all parties agreed to proceed with a trial
before the bench instead.
Nerrissa Bryant, a CPS investigator, testified. According to Bryant, CPS
received a referral regarding S.S.A., concerning an allegation of a possible
sexual assault of S.S.A. by Kim’s then roommate. Bryant gathered information
about the alleged assault and also investigated S.S.A.’s familial setting. During
her investigation, Bryant learned of Frank. By Bryant’s account, Kim informed
her that Frank was in Iowa, but that she was unsure of his exact location. Kim
also relayed to Bryant that Frank was aware that he was S.S.A.’s father. Kim
conveyed to Bryant that Frank was unhappy about her having become pregnant
7 There is no evidence that Frank requested to participate in the trial through other means such as affidavit or telephonic participation. See In re D.D.J., 136 S.W.3d 305, 313–14 (Tex. App.—Fort Worth 2004, no pet.) (reasoning that an inmate who is not allowed to participate in a family matter lawsuit due to incarceration should be allowed to “proceed by affidavit, deposition, telephone, or other effective means”).
4 and that they later broke off their relationship. Bryant said that Kim told her that
Frank had never paid any child support and had never had any contact with
S.S.A. Bryant also said that, according to Kim, Frank did once try to set up a visit
with S.S.A. when she was roughly one year old, but that the visit never
happened. Bryant also testified that S.S.A. shared the last name of another of
Kim’s friends, who was neither Frank nor the person she lived with when
allegations of sexual abused were raised.
Because Kim had previously tested positive for marijuana on an earlier
CPS referral regarding S.S.A. and because of her behavior during an interview,
Bryant called for drug testing. Kim tested positive for methamphetamines.
Furthermore, Bryant said that CPS gathered evidence that Kim had sexually
assaulted S.S.A. and that, primarily because of drug use, had neglected S.S.A.
Bryant said that her investigation revealed that Kim had two other children,
that she had been investigated before in Iowa regarding the two children, and
that although she did not believe that the two children were in Kim’s “care and
custody,” she found no evidence that they had been removed by that state’s child
protective services. Bryant said that her investigation only revealed the name of
Frank but no other information. She was unable to locate Frank. Bryant also
explained S.S.A.’s current living status. At the time of trial, S.S.A. lived with her
maternal grandfather. CPS believed that S.S.A. should remain there.
Former CPS conservatorship caseworker Kayla Gulling also testified at
trial. Gulling was responsible for developing temporary orders pending this case.
5 Gulling said that because Kim had missed numerous court appearances and
visitations with S.S.A., Gulling had only met Kim once, at a hearing, to which Kim
was transported from the Denton jail that she might attend.8 It was at this
hearing that Kim gave further information to Gulling which aided CPS in locating
Frank. After locating Frank, Gulling took Kim, who remained in a Denton jail, a
picture of Frank, and Kim confirmed that the picture was S.S.A.’s biological
father, Frank. After this, Gulling sent Frank a letter explaining that CPS had an
open case regarding S.S.A. and that he was her alleged biological father.
Frank responded with a letter stating that he did not know of the existence
of S.S.A., that he questioned whether he was S.S.A.’s father, and that he would
like DNA testing to confirm his potential paternity. Gulling also stated that
because Frank was frequently incarcerated, he had never had any contact with
S.S.A., and that his incarceration limited his ability to be a parent to S.S.A.
Based on this evidence, CPS also made the decision to seek termination of his
parental rights.
S.S.A.’s aunt, whom she had been placed with temporarily earlier in the
pendency of this case, also testified at trial. Aunt testified that she had known
S.S.A. her entire life and that she first knew of Kim’s pregnancy with S.S.A. when
Kim traveled to Mississippi from Iowa with a man the family believed to be
S.S.A.’s father. She testified that Kim had told her Frank’s first name. Aunt said
8 This appears to be a permanency hearing where no reporter’s record was transcribed.
6 that although she had heard that Kim told Frank of her pregnancy with S.S.A.,
that information was secondhand.
Aunt said that since S.S.A.’s birth, both she and S.S.A.’s maternal
grandfather frequently visited S.S.A. Aunt testified that S.S.A. had been placed
with her when Kim was investigated under a 2007 CPS referral. Aunt said that
she was aware of Kim’s drug use after the first CPS investigation regarding
S.S.A. According to Aunt, S.S.A. lived with either the maternal grandfather’s
friend, herself, or S.S.A.’s maternal grandfather during the initial CPS
investigation. Aunt testified that after CPS returned S.S.A. to Kim the first time,
Kim lost weight, began to be paranoid, and “was broken out . . . her face had
scabs and scars.” By Aunt’s account, Kim’s physical condition had deteriorated
to such a degree that “[Aunt] had a hard time recognizing her.” Aunt also
testified that S.S.A.’s health deteriorated at the same time. Aunt recalled that
when she would pick up S.S.A. for visits, S.S.A. would become hysterical when
she realized they were returning home to Kim’s.
Aunt testified that she believed S.S.A.’s maternal grandfather’s house was
the proper permanent place for S.S.A. Aunt said that the maternal grandfather
provided a stable home with a stable relationship—he has been married to Aunt’s
sister for more than twenty-five years. Aunt testified that she believed it in
S.S.A.’s best interest that Kim’s parental rights be terminated due in large part to
Kim’s “constantly [bringing different] men in and out of her life, . . . so many I
could probably, you know, list them off on two hands.”
7 S.S.A.’s maternal grandfather also testified at trial. He said that Kim had
been in foster homes most of her life, but that at one point she was placed in an
Iowa “halfway house when she was around [seventeen].” The grandfather said
that Kim escaped from that facility with a person whom he understood was
S.S.A.’s biological father. After a few moves and a displacement from
Mississippi caused by Hurricane Katrina, Kim lived with grandfather for a short
time. S.S.A. was born shortly thereafter. When S.S.A. was between nine and
fifteen months old, grandfather recalled Kim having multiple conversations with
Frank on the phone. One such call revolved around Kim asking Frank for
financial support of S.S.A. and for him to “step up and take responsibility.” He
said that she specifically told Frank he was S.S.A.’s father. Grandfather said he
had no doubt that Frank was aware that he was S.S.A.’s biological father and
that these phone calls occurred prior to Frank’s current incarceration.
Grandfather said that Kim previously had two children removed from her
custody in Iowa. He also testified that S.S.A. had stayed with him during both
CPS investigations. In fact, grandfather testified that he spent as much time with
S.S.A. as he could since she was born: “We used to try to pick her up on the
weekends and take her out to our house whenever we could.”
Grandfather said that when S.S.A. first began living with him this most
recent time, she suffered from numerous health issues, including upper
respiratory infections. He opined that these infections were caused in part from
the constant moving and living in motels: “[T]hey lived in motels most of the time,
8 so they smoked a lot, never opened the doors, so she was constantly at the ER.”
Grandfather said that since she had lived with him, S.S.A.’s health had improved
dramatically, and he was able to pay for an MRI himself prior to a recent eye
surgery that S.S.A. had needed since she was born and had been suggested at
two years old. Grandfather said that he and his wife, who also have a fourteen-
year-old daughter, were ready and willing to adopt S.S.A. and provide her with a
stable home.
Lori Powell, a CASA representative, also testified. According to Powell,
S.S.A. was nearly five and one-half years old at the time of trial. Powell testified
that CPS’s home study of the maternal grandfather’s placement revealed a “very
positive” placement. Powell said that the grandfather “clearly [has] the ability to
provide a safe and stable environment” for S.S.A. Powell also said that CASA
recommended that the trial court appoint grandfather permanent managing
conservator of S.S.A., and that the grandfather wished to adopt S.S.A.
Powell testified that permanency was “[a]bsolutely, critical” in a child’s life.
She recommended terminating Kim’s parental rights because S.S.A. had lacked
important elements in her life like “physical support, financial support, and her
emotional needs.” Powell also said that CASA recommended terminating
Frank’s rights because ”[Frank] hasn’t had a relationship with [S.S.A.], and that
he is incarcerated and could be as far into as 2012.” She also said that Frank
had never provided any kind of support for S.S.A.—physical, financial, or
emotional. Powell said that based on the testimony at trial, she believed that
9 Frank was aware of Kim’s pregnancy with S.S.A. And Powell also said that
Frank demonstrated a lack of interest in S.S.A.’s well-being by not attempting to
correspond with CPS about S.S.A.’s placement or how she was being provided
for, even after confirming his paternity through testing. But Powell also testified
that Frank’s request in his initial letter to the trial court for information regarding
the status of charges against S.S.A.’s alleged assailant in this latest referral and
for S.S.A.’s medical records did show “some concern” regarding S.S.A.’s well-
being.
Rachel Phillips, a CPS conservatorship worker, testified that she also had
worked S.S.A.’s current referral, which led to CPS’s pursing termination of Kim’s
and Frank’s paternal rights and placement of S.S.A. with the maternal
grandfather. Phillips said that frequent visits to the maternal grandfather’s house
since S.S.A.’s placement there have revealed that “[S.S.A.] [is] doing well. She’s
had eye surgery recently, and it went well.“ Phillips said that the maternal
grandfather wished to adopt S.S.A.
Phillips testified that she had no doubt that Frank knew of Kim’s pregnancy
with S.S.A. She also said that Frank knew of the criminal and drug-prevalent
environment that S.S.A. lived in when S.S.A. lived with Kim. Phillips averred that
Frank had not provided CPS with any family or kinship possibilities, that he was
not a placement option, nor was he able to provide S.S.A. with a safe
environment due to his incarceration, and that she believed Frank had
constructively abandoned S.S.A. She also testified that Frank had knowingly
10 engaged in the criminal activity that he knew could lead to incarceration after he
had knowledge of S.S.A. Phillips said that Frank had demonstrated an inability
to care for S.S.A. and, despite evidence that Kim had sought financial support
from Frank for the care of S.S.A., he had never paid child support. Ultimately,
Phillips stated that
The department feels that [Frank] has known that [S.S.A.] was his child. If not known, maybe that there was a great possibility that she was and that he engaged in criminal activities at that time that led to his incarceration and him not being able to care for her now. And so the department feels it’s in her best interest to have permanency, and we feel that she can have that with [her maternal grandfather].
After closing arguments, and relative to Frank, the trial court said that it
was specifically finding by clear and convincing evidence that Frank “learned at
some point prior to his current incarceration that he was likely or alleged to be the
father of [S.S.A.].” The trial court also found that Frank had taken “no steps to
support [S.S.A.], to become a part of [S.S.A.’s] life, to determine [for sure]
whether or not he was, in fact, [S.S.A.’s] father, or do anything else in relation to
[S.S.A.].” The trial court also stated that Frank’s correspondence with the court
since learning of the termination suit demonstrated a “relatively shallow concern”
for S.S.A. The trial court found that Frank had knowingly placed or allowed
S.S.A. to remain in conditions that endangered her physical and emotional well-
being; that Frank had engaged in conduct or knowingly placed S.S.A. with
persons who engaged in conduct which endangered her physical and emotional
well-being; and that Frank had knowingly engaged in criminal conduct that has
11 resulted in his conviction of an offense and confinement or imprisonment and
inability to care for S.S.A. for not less than two years from the date CPS filed this
termination petition. The trial court also found termination of Frank’s paternal
rights in S.S.A.’s best interest. Based on these findings, the trial court terminated
Frank’s paternal rights to S.S.A. This appeal followed.9
III. DISCUSSION
A. Frank Knew of S.S.A. Prior to Paternity Testing
In part of all of Frank’s six issues,10 he challenges the legal and factual
sufficiency of the evidence to support the trial court’s finding that he knew that he
was S.S.A.’s biological father.11 The Department responds that the trial court’s
finding that Frank knew of S.S.A. prior to his incarceration is supported legally
and factually by the record. We agree with the Department.
9 The trial court also ordered that Kim’s paternal rights to S.S.A. be terminated. Kim did not file an appeal. 10 Frank’s issues on appeal track the issues raised in his motion for new trial and in his statement of points, both filed fourteen days after the trial court entered its order to terminate Frank’s parental rights. See Tex. Fam. Code Ann. § 263.405(b) (West Supp. 2011), amended by Act of May 19, 2011, 82d Leg., R.S., ch. 75, § 4, 2011 Tex. Gen. Laws 348, 349–50 (no longer requiring a party seeking appellate review to have filed a statement of points with trial court). 11 In part of his briefing, Frank asserts that “[t]he testimony from all witnesses indicates that [Frank] was unaware of his being the father of S.S.A. until the results of the paternity test were made known.” This is simply false. The trial court specifically found that Frank was aware of his paternity to S.S.A. prior to his most recent incarceration and prior to the court-ordered paternity testing. Moreover, multiple witnesses testified to Frank’s knowledge of his paternity and that Frank knew of S.S.A. prior to his most recent incarceration.
12 1. Burden of Proof
A parent’s rights to “the companionship, care, custody, and management”
of his children are constitutional interests “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982);
In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). 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 for the child’s right to inherit. Tex. Fam. Code
Ann. § 161.206(b) (West 2008); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
We strictly scrutinize termination proceedings and strictly construe involuntary
termination statutes in favor of the parent. Holick, 685 S.W.2d at 20–21; In re
M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort Worth 2008, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.
2011); 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 factfinder. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 206(a) (West 2008). Evidence is
13 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.” Id.
§ 101.007 (West 2008). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
B. Legal Sufficiency Standard of Review
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must review all the
evidence in the light most favorable to the finding and judgment. Id. This means
that we must assume that the factfinder resolved any disputed facts in favor of its
finding if a reasonable factfinder could have done so. Id. We must also
disregard all evidence that a reasonable factfinder could have disbelieved. Id.
We must consider, however, undisputed evidence even if it is contrary to the
finding. Id. That is, we must consider evidence favorable to termination if a
reasonable factfinder could and disregard contrary evidence unless a reasonable
factfinder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness credibility issues that depend on
14 the appearance and demeanor of the witnesses, for that is the factfinder’s
province. Id. at 573, 574. And even when credibility issues appear in the
appellate record, we must defer to the factfinder’s determinations as long as they
are not unreasonable. Id. at 573.
C. Factual Sufficiency Standard of Review
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the judgment with our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on
the entire record, a factfinder could reasonably form a firm conviction or belief
that the parent violated the applicable subsection to 161.001 and that the
termination of the parent-child relationship is in the best interest of the child. Tex.
Fam. Code Ann. § 161.001; 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 conviction in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
D. Frank’s Knowledge of His Paternity
Viewing the entire record in light most favorable to the trial court’s
judgment, the record reveals that Frank was aware of S.S.A. prior to her being
fifteen months old. S.S.A.’s grandfather testified that Kim discussed S.S.A. with
Frank on multiple occasions when S.S.A. lived with the grandfather between the
ages of nine months and fifteen months old. Furthermore, multiple Department
15 representatives and one CASA representative all testified that Frank knew of his
paternity to S.S.A. prior to his current incarceration. There was also testimony
that Frank had someone inquire about S.S.A., prior to her being a year old.
Frank’s response is that the record does not demonstrate his affirmative
knowledge of paternity until after the paternity test confirmed he was S.S.A.’s
biological father less than seven months prior to the termination trial. This court
also notes that there was testimony that at one time Kim may have believed a
man other than Frank was S.S.A.’s father. After carefully reviewing the entire
record and viewing all of the evidence in the light most favorable to the finding
and judgment, we hold that the evidence is such that a factfinder could
reasonably form a firm belief or conviction that Frank knew of his paternity to
S.S.A. before she was fifteen months old; thus, Frank knew of S.S.A. prior to the
conduct that led to his incarceration in 2009. See Tex. Fam. Code Ann.
§ 161.001(1)(Q). Accordingly, we hold that the evidence is legally and factually
sufficient to support the trial court’s finding regarding Frank’s knowledge of his
paternity.
E. The Trial Court’s Section 160.001(1)(Q) Finding
In part of his fourth issue, Frank contends that the evidence is legally and
factually insufficient to support the trial court’s finding that he knowingly engaged
in criminal conduct that resulted in his conviction for an offense and confinement
resulting in his inability to care for S.S.A. for not less than two years from the
date of the filing of the petition. Specifically, Frank argues that there is no
16 evidence in the record of “the length of [Frank’s] incarceration and its end date.”
We disagree.
Subsection 161.001(1)(Q) warrants termination of parental rights when a
parent knowingly engaged in criminal conduct, resulting in the parent’s conviction
of an offense, and the parent is both incarcerated and unable to care for the child
for at least two years from the date the termination petition was filed. Tex. Fam.
Code Ann. § 161.001(1)(Q). This court and other Texas appellate courts have
construed section 161.001(1)(Q) as requiring a three-step process. See In re
E.S.S., 131 S.W.3d 632, 639 (Tex. App.—Fort Worth 2004, no pet.); see also
In re Caballero, 53 S.W.3d 391, 395 (Tex. App.—Amarillo 2001, pet. denied).
First, the party seeking termination must establish that the parent’s knowing
criminal conduct resulted in incarceration for more than two years. E.S.S., 131
S.W.3d at 639–40. Second, the parent must produce some evidence as to how
he would provide or arrange to provide care for the child during that period. Id.
Finally, the party seeking termination would then have the burden of persuasion
that the arrangement would not satisfy the parent’s duty to the child. Id.
In part of this issue, Frank contends that the trial court abused its
discretion by admitting certain evidence, over his hearsay objections, depicting
the date Frank was incarcerated and his expected release date. Frank contends
that without these admitted documents—exhibits 4, 9, and 10—the evidence is
insufficient to prove a release date satisfying section 160.001(1)(Q)’s
requirement that he has the inability to care for S.S.A. for not less than two years
17 from the date of the filing of the petition to terminate his parental rights. Tex.
Fam. Code Ann. § 161.001(1)(Q).
Assuming without deciding that the trial court should not have admitted the
challenged evidence, we cannot conclude on this record that Frank was harmed
by their admission. See Tex. R. App. P. 44.1(a)(1) (stating that reversal occurs
only when an error “probably caused the rendition of an improper judgment.”).
As the Department points out, the trial court took judicial notice of the court’s file.
In the court’s file, there exist multiple documents reflecting Frank’s expected
release date from his current incarceration in February 2012. There is also
ample evidence in the record supporting the trial court’s finding that Frank knew
of his paternity to S.S.A. prior to his current conviction that led to his
incarceration and that it is expected he would remain there for two years from the
filing of the petition seeking termination. Indeed, the evidence demonstrates that
CPS sought termination in November 2009 and that Frank was scheduled to
remain incarcerated until February 2012. We hold that, even assuming the
complained-of evidence should not have been admitted, the record contains
sufficient evidence to support the trial court’s findings as to the first element of a
161.001(1)(Q) finding; namely, that Frank knowingly committed criminal conduct
resulting in his incarceration for more than two years from the petition’s filing.
See E.S.S., 131 S.W.3d at 639–40.
Furthermore, Frank bore the burden of demonstrating how he would
provide or arrange to provide care for S.S.A. during his incarceration. Id. The
18 record, however, demonstrates that Frank never provided CPS with any family or
kinship possibilities for S.S.A.’s placement during his incarceration. Frank also
did not supply the trial court with any testimony, through affidavit or other means,
of how he intended to provide this support. Thus, Frank failed to carry his burden
demonstrating that he could provide for S.S.A. during his incarceration. See id.
Finally, because Frank failed to carry his burden, the Department was relieved of
carrying its burden of persuasion that Frank’s offered care provisions were
satisfactory. See Caballero, 53 S.W.3d at 396 (holding that petitioner carries no
burden of persuasion under 161.001(1)(Q)’s care element when parent fails to
provide some evidence of provisional care for child during incarceration). We
overrule Frank’s fourth issue.
F. Best Interest of S.S.A.
In his fifth issue, Frank contends that the evidence is legally and factually
insufficient to support the trial court’s ruling that termination of the parent-child
relationship between Frank and S.S.A. is in S.S.A.’s best interest.
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). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). The
following factors should be considered in evaluating the parent’s willingness and
ability to provide the child with a safe environment:
(1) the child’s age and physical and mental vulnerabilities;
19 (2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the child;
(4) whether the child has been the victim of repeated harm after the initial report and intervention by the department or other agency;
(5) whether the child is fearful of living in or returning to the child's home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child's home;
(7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child's home;
(8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time;
(12) whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with the child's physical and psychological development;
(C) guidance and supervision consistent with the child’s safety;
20 (D) a safe physical home environment;
(E) protection from repeated exposure to violence even though the violence may not be directed at the child; and
(F) an understanding of the child’s needs and capabilities; and
(13) whether an adequate social support system consisting of an extended family and friends is available to the child.
Id. § 263.307(b); R.R., 209 S.W.3d at 116.
Other, nonexclusive factors that the factfinder in a termination case may use in
determining the best interest of the child include: (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).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. 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
21 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.
Here, regarding S.S.A.’s age and physical and mental vulnerabilities, the
record demonstrates that S.S.A. was nearly five and one-half years old at the
time of trial. The record demonstrates that prior to her current placement with
her maternal grandfather, S.S.A.’s health had deteriorated and she was
frequently in the emergency room due to poor care and exposure to frequent
moves and smoke inhalation. The record demonstrates that at best, Frank
simply did not take any action to aid S.S.A. regarding her physical or mental
vulnerabilities, or at worse, his complicity allowed S.S.A. to live in an environment
of drug abuse and crime.
The record also demonstrates that prior to placement, S.S.A. was delayed
in receiving care for a congenital eye condition. Since moving in with her
grandfather, S.S.A. has received the surgery she needed, and her health has
improved dramatically.
Pertaining to the frequency and nature of out-of-home placements, S.S.A.
has already lived portions of her young life with a family friend, her grandmother,
her aunt on two occasions, her maternal grandfather on two occasions, and her
mother, who frequently moved and lived with a revolving door of boyfriends.
Frank has never been a part of S.S.A.’s life, and despite his knowledge of her
existence, never afforded any effort to assist her living conditions or otherwise
22 provide a stable and safe environment for her to grow up in. In contrast, S.S.A.’s
maternal grandfather, who wishes to adopt S.S.A., has been one of the most
stable people in her life. In addition to living with him during multiple CPS
referrals regarding Kim, the grandfather has also committed himself to visiting
S.S.A. as frequently as possible since her birth. Reports indicated positive
reviews of her placement in her grandfather’s home. The maternal grandfather
also wishes to adopt S.S.A., giving her a permanency in living conditions that she
has lacked her entire life.
The record is simply void of any evidence regarding the willingness and
ability of Frank to seek out, accept, and complete counseling services in
conjunction with CPS pertaining to S.S.A. Even assuming he was unaware of
S.S.A. until the paternity test, the trial court specifically found that his actions
since the paternity test have demonstrated a “relatively shallow concern” for
S.S.A. On the flip side, S.S.A.’s maternal grandfather has shown a willingness to
cooperate with CPS, including having a home study performed, and he has
allowed the agency’s close supervision of his relationship with S.S.A.
The record further demonstrates that Frank has never provided any type of
care for S.S.A, including not providing health or nutritional care, or any other type
of care geared at providing S.S.A. with the proper physical and psychological
development she needs. In contrast, the maternal grandfather has provided
food, shelter, financial support for an MRI, surgery and other health care needs,
and, perhaps most important, the grandfather has provided S.S.A. with a safe
23 physical home environment that includes a social support system consisting of
his wife, his fourteen-year-old daughter, and his sister-in-law, S.S.A.’s aunt, who
is also heavily involved in S.S.A.’s life. Frank, on the other hand, through his
acts of crime and omission of care in S.S.A.’s life, has indicated that the existing
parent-child relationship between himself and S.S.A. is not a proper one. Indeed,
the record indicates that Frank has spent the majority of his life in and out of
prison, and other than an indication in the record that he intends to attend drug
counseling during his current incarceration, Frank did not explain to the trial court
any willingness to take steps necessary to become a better father to S.S.A.
In summary, viewing the evidence in the light most favorable to the trial
court’s best interest finding, we conclude and hold that the evidence produced at
trial was sufficient to produce in the mind of the trial court a firm belief or
conviction as to the truth of the allegation that termination of Frank’s paternal
rights to S.S.A. was in her best interest. We overrule Frank’s fifth issue. Having
overruled portions of Frank’s six issues, and having overruled his fourth and fifth
issues in their entirety, we need not address the remaining portions of Frank’s
issues pertaining to the trial court’s other findings under 161.001. See In re
M.N.G., 147 S.W.3d 521, 540 n.9 (Tex. App.—Fort Worth 2004, pet. denied) (op.
on reh’g).
24 IV. CONCLUSION
Having overruled Frank’s fourth, fifth, and portions of all six of his issues
which are dispositive, we affirm the trial court’s order terminating his parental
rights to S.S.A.
BILL MEIER JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DAUPHINOT, J., concurs without opinion.
DELIVERED: July 19, 2012