# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- CV In the Interest of E.A.M.V . , a C hild From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2017

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- 02217 Honorable Charles E. Montemayor, Judge Presiding Opinion by: Irene Rio s, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Irene Rios, Justice Delivered and Filed: May 1, 2019 AFFIRMED Father appeal s from a judgment terminating his parental rights to his child, E.A.M.V. 1 In three issues, Father argues (1) the trial court erred in finding that he failed to admit paternity under section 161.002 ( b)(1) of the family code ; (2) the evidence was legally or factually insufficient to support the trial court’s finding that termination was in E.A.M.V.’s best interest under section 161.001(b)(2) of the family code ; and (3) the evidence was legally or factually insufficient to support the trial court’s finding that termination wa s not based on the circumstances listed in section 161.001(c) of the family code

. See T EX . F AM . C ODE A NN . § § 161.001(b)(2), 161.002, 161.001(c). We affirm the trial court’s judgment.

1 To protect the identity of a minor child in an appeal from a judgment terminating parental rights, we refer to the appellant as “Father” a nd to the child by her initials. See T EX . F AM . C ODE A NN . § 109.002(d); T EX . R. A PP . P. 9.8(b)(2).04

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- B ACK GROUND The Texas Department of Family and Protective Services filed an original petition claiming F ather was the alleged father of E.A.M.V. and seeking to terminate his parental rights

. A t the time, E.A.M.V. was only three months old

. The Department was appointed E.A.M.V.’s temporary managing conservator. About a year later, t he case was tried to the trial court

. A Department caseworker, Father , and E.A.M.V.’s mother testified at trial

. Father and E.A

. M.V.’s mother , who were both in prison at the time of trial , testified by telephone. After hearing the evidence, t he trial court terminated Father’s parental rights on the ground that he did not respond to the Department’s petition by timely filing an admission of paternity. See T EX . F AM . C OD E A NN . § 161.002 (b)(1)

. Alternatively, the trial court terminated Father’ s parental rights because it found, by clear and convincing evidence, four statutory grounds to support termination : (1) Father had been convicted of the offense of indecency with a ch ild ; (2) Father had constructively abandoned E.A.M.V .; (3) Father had failed to comply with the provisions of a court order that specifically established the actions necessary fo r him to obtain E.A.M.V.’s return; and (4) Father had knowing ly engaged in cri minal conduct that had resulted in his conviction for an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date of the filing of the Department’s petition. See id

. § 161.001(b)(1) (L), (N) ,(O),(Q). The trial court also found that termination of Father’ s parental rights would be in E.A.M.V. ’s best interest. See id

. 161.001(b)(2). Father appealed. 2 F AILURE TO A DMIT P ATERNITY In his first issue, Father argues the trial court erred in terminati ng his parental rights on the ground that he did not admit paternity. Section 161.002(b)(1) of the family code provides the court

2 The trial court’s judgment also terminated the parental rights of E.A.M.V.’s mother, but she did not appeal.04

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- may summarily terminate the rights of an alleged father if “after being served with citation, he does not respond by timely fi ling an admission of paternity or a counterclaim for paternity under Chapter 160.” See id . § 161.002 (b)(1)

. “ There are no formalities that must be observed when filing an admission of paternity o r for such an admission to be effective. ” In re U.B. , No. 04

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- 00687

- CV, 2013 WL 441890, at *2 (Tex. App.

— San Antonio 2013, no pet.)

. Here, Father argues the trial court erred in terminat ing his parental rights under section 161.002(b)(1) because the record shows that he admitted his paternity of E.A.M.V. in a letter he wrote to the trial court and in his trial testimony. We agree that the record establishes that Father admitted paternity within the meaning of section 161.002(b)(1). About two weeks after the Department filed its petition , Father filed a letter with the trial court clerk , stating : “I am writing this letter to inform the court that I am the father of [E.A.M.V.]

. . . the child in case number 2017

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- 02217 and I do not deny parentage.” In the letter, Father ask ed the court to appoint his mother
a s sole managing conservator of E.A.M.V. while he served his prison term

. Father also ask ed the trial court to appoint an attorney to represent him and to allow him time to prepare his defense. Furthermore , at trial , Father testified , “I am the biological father of [ E.A.M.V. ]. ” Father ’s letter to the trial court and his trial testimony constitute d admission s of paternity within the meaning of section 161.002 (b)(1) of the family code. See In re S.R.J

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. , 537 S.W.3d 677, 682 (Tex. App.

— San Antonio 2017, pet. denied) ( conclu ding father’s appearance and participation at trial, including his sworn admission that he was the children’s father and trial counsel’s advocacy against parental termination, amounted to an admission of paternity und er section 161.002 (b)(1) ); In re U.B. , 2013 WL 441890, at *2 (holding that alleged father’s letter to trial judge referring to the children as “ my children” and alleged father’s testimony that he was the father of the children constituted an admission of p aternity consistent with section 161.002(b)(1)).04

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- We hold the trial court erred in concluding that Father did not respond to the Department’s petition by timely filing an admission of paternity and in terminating his parental rights based on section 161.002(b)(1)

. See In re S.R.J

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. , 537 S.W.3d at 682; In re U.B. , 2013 WL 441890, at *2

. We sustain Father’s first issue ; however, the trial court also found that the Department proved, by clear and convincing evidence, four statutory grounds under sectio n 161.001(b)(1) and that termination was in E.A.M.V.’s best interest under section 161.001(b)(2). See T EX . F AM . C ODE A

NN . § 161.001(b)(1)(L),(N),(O),(Q); (b)(2). B ecause the trial court also terminated Father’s parental rights based on section 161.001 (b) , we cannot reverse the judgment unless we conclude that it cannot be supported under section 161.001(b)

. S ECTION 161.001( B ) AND THE C HILD ’ S B EST I NTEREST I n his second issue, Father argues the evidence was legally or factually insufficient to support the trial court’s finding that termination of his parental rights was in E.A.M.V.’s best interest. Father does not challenge the sufficiency of the evidence to support the trial court’s findings as to any of the statutory grounds under section 161.1001(b)(1)

. See id. § 161.001(b)(1)(L),(N),(O),(Q). Father only challenges the sufficiency of the evidence to support the trial court’s best interest finding

. See id

. § 161.001(b)(2). When reviewing the sufficiency of the evidence, we apply the well

- established standards of review for legal and factual sufficiency. See T EX . F AM . C ODE A NN . §§ 101.007, 161.206(a); In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006) (factual su fficiency); In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency). In evaluating a child’s best interest, we consider the non

exhaustive Holley factors. 3 In re E.C.R. , 402 S.W.3d 239, 249 n.9 (Tex. 2013) ; Holley v

. Adams ,

3 These factors include: (1) the child’s desires; (2) the child’ s present and future emotional and physi cal needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the ch ild’ s best interest; (6) t he plans for the child by the individuals or agency seeking custody; (7) the stability of the home or pro posed04

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- 544 S.W.2d 367, 371

- 72 (Tex. 1976). However, “[t]he absence of evidence about some of these [factors] would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child’s best interest, particularly if the evidence were undisp uted that the parental relationship endangered the safety of the child.” In re C.H. , 89 S.W.3d 17, 27 ( Tex. 2002). We also consider the factors set forth in section 263.307(b) of the Texas Family Code. 4 See T EX . F AM . C ODE A NN . § 263.307(b). Evidence that p roves one or more statutory ground for termination may also constitute evidence illustrating that termination is in the child’s best interest. In re C.H

. , 89 S.W.3d at 28
. A best interest analysis may consider direct and circumstantial evidence, subjective factors, and the totality of the evidence. In re E.D

. , 419 S.W.3d 615, 620 (Tex. App.

— San Antonio 2013, pet. denied). “A trier of fact may measure a parent’s future conduct by his past conduct and determine whether termination of parental rights is in the child’s best interest.” Id

. With these standards and factors in mind , we consider the trial evidence as it relates to E.A.M.V.’s best interest. The evidence showed that E.A.M.V. was only fifteen months old at the time of trial

. E.A.M.V. had been removed from her mother ’s care when she was three months old
placement; (8) the parent’ s acts or omissions which may indicate that the existing parent

- child relationship is improper; and (9) any excuse for the parent’ s acts or omissions. Holley v. Adams , 544 S.W.2d 367, 371

- 72 (Tex. 1976)

. 4 These factors are consider ed in determining whether the parent is willing and able to provide the child with a safe environment : (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out

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- home placements; (3) the magnitude, frequency, and circumstances of harm to the child; (4) whether the child has been the victim of repeated harm after th e initial report and intervention by the department; (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 f amily 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 par enting 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 develo pment; (C) guidance and supervision consistent with the child’s safety; (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. T EX . F AM . C ODE A NN . § 263.307(b)

.04

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- a nd had been placed with a relative , her great

- grandmother

. Father had never met E.A.M.V. in person. He had only seen E.A.M.V. once by way of video conference

. At the time of trial, Father
was se rving a prison sentence for possession of a firearm by a felon

. Father and E.A.M.V.’s mother h ave an older child , who had been removed from his parents’ care as a baby

. In the older child’s
case , Father and the Department had reached a settlement agreement and Father had retained his parental rights

. A caseworker testified that the Department had serious concerns about Father , who was a lifetime registered sex offender. Father had been convicted of indecency with a child

. T he victim in that case was a very young child

. Based on these circumstances, t he caseworker believed Father posed a danger to E.A.M.V., who was still very young and vulnerable. Furthermore, the caseworker was concerned because Father had told her that he planned to “take custody” of E.A.M.V. when he was released from prison. Additionally, the caseworker pointed out that Father did not complete any of the services in his service plan. A t the beginning of the case , the casework er had provided Father a copy o f the service plan and asked Father if there were any services available at the prison where he was incarcerated at the time . Father wrote back saying that no ne of the services the Department requested were offered at the prison where he was incarcerated. The caseworker characterized her dealings with Father as “ very rocky

. ” Father became upset and show ed his anger very quickly. The caseworker believed Father did not have the ability to parent E.A.M.V

. , to provide her with a safe and stable home environment , or to meet her physical and emotional needs. The caseworker further testified that E.A.M.V. was living with the child’s great
grandmother , who had cared for E.A.M.V. for virtually all her life . E.A.M.V. referred to her great

grandmother as her mother and w as “thriving” in her current environment

. The Department’s long

term plan for E.A.M.V. was adoption by her great

- grandmother

. However, the caseworker also04

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- said the Department would be reevaluating E.A.M

. V.’s current placement based on new information. T he caseworker had just learned that the great

- grandmother’s daughter, who frequent ly visited the great

- grandmother’s home , had been charged with several serious criminal offenses in the past

. The caseworker indicated that another relative , a cousin, migh t be a viable placement option for E.A.M.V. , but she was not certain about this

. In his testimony, Father admitted that he had been convicted of indecency with a child, a four

- year - old girl . Nevertheless, Father claimed he would not be a danger to E.A.M.V. Father explained that he planned to use legal means to regain custody of his children upon his release from prison. Father said he never receive d a copy of the service plan in this case

. However, Father also said the caseworker had come to the cou nty jail to talk to him about th e case . Father acknowledged that his prison release date was uncertain; he could be released in the next six months , or he c ould remain in prison until 2025. Father said that he would like for E.A.M.V. to be placed with his mother. Finally, E.A.M.V.’s mother testified that she believed that Father would
never hurt E.A.M.V. A parent’s sexual abuse of a nother child is a relevant consideration in deciding if the parent poses a danger to the physical and emotional well

- being of his own child. In re S.G. , No. 01

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- CV, 2019 WL 144 8870 , at *9 (Tex. App.

— Houston [1st Dist.] Apr. 2, 2019, no pet. h.) (recognizing that the factfinder was free to conclude that a parent who had been convicted of aggravated assault of a child pose d a physical and emotional danger to his own child) ; In re R.J.C. , 04

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— San Antonio Mar. 10, 2010, no pet
. ) (concluding evidence was legally and factually sufficient to support the termination of parental rights based on the appellant’s sexual behavior towards at least two other children , a conviction for aggravated sexual assault of a child , and concerns about the effect appellant’s sexual behavior might have on the child the subject of the termination suit). Additionally, “[a] parent’s04

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- incarceration is relevant to his ability to meet the child’s present and future physical and emotional needs.” In re J.G.S. , 550 S.W.3d 698, 706 (Tex. App.

— El Paso 2018, no pet.). “ [A] parent’s incarceration at the time of trial makes the child’s future uncertain.” Id

. Here , E.A.M.V. was too young to express her desires, but E.A.M.V. had no bond with Father . Father had been incarcerate d for the entirety of th is case and his prison release date was uncertain. Based on this eviden ce , t he trial court could have determined that Father, through his
own course of conduct , had put himself in a position in which he was unable to meet E.A.M.V.’s present and future physical and emotional needs. Additionally, because Father had committed a sexual crime against another child, the trial court was free to conclude that Father posed a danger to E.A.M.V.’s physical and emotional well

- being. See In re S.G. , 2019 WL 1448870 , at *9; In re R.J.C. , 2010 WL 816188, at *2. Additionally, the trial court could have disbelieved the testimony from Father and E.A.M.V.’s mother that Father would not harm E.A.M.V. See In re J.B.P. , 180 S.W.3d at 573 (recognizing that the appellate court defers to the factfinder on witness credibility issues). F inally, given the other circumstances indicating that termination was in E.A.M.V.’s best interest , evidence that the Department had received new information and was going to have to reevaluate its plans for E.A.M.V.’s permanent placement is not dispositive

. See In re C.H. , 89 S.W.3d at 28 (noting that a lack of “ definitive plans for permanent placement and adoption [ is not ] the dispositive fact or;” the question “ is whether , on the entire record, a factfinder could reasonably form a firm conviction or belief that termination of the parent’s rights would be in the child’s best interest

— even if the [Department] is unable to identify with precision the child’s future home environment .”)

. Having reviewed the record and considered all the evidence in the appropriate light for each standard of review, we conclude the trial court could have formed a firm belief or conviction that termination of Fat her ’s par ental rights was in E.A.M.V.’s best i nterest
. See T EX . F AM . C ODE04

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NN . § 161.001(b)(2); In re H.R.M. , 209 S.W.3d at 108; In re J.P.B ., 180 S.W.3d at 573; see also generally In re A.B. , 437 S.W.3d 498, 503 (Tex

. 2014) (recognizing an appellate court need not detail the evidence if affirming a t ermination judgment). Therefore, the evidence wa s legally and factually sufficient to support the trial court’s best interest finding. We overrule Father’s second issue. C IRCUMSTANCES P ROHIBITING T ERMINATION In his third issue, Father argues the evidence wa s legally or factually insufficient to support the trial court’s finding that termination was not based on evidence of the circumstances listed in section 161.001(c) of the family code. Section 161.001(c) prohibits a court from finding grounds for termination of parental rights based on evidence that the parent (1) “homeschool ed the child;” (2) “is economically disadvantaged;” (3) “ has been charged with a nonviolent misdemeanor offense,” with certain enumerated exceptions; (4) “provided or administe red low

- THC cannabis to a child for whom low

- THC cannabis was prescribed under Chapter 169, Occupations Code;” or (5) “declined immunization for the child for reasons of conscience, including a religious belief.” T EX . F AM . C ODE A NN . § 161.001(c). The only authority Father cites to support t his argument is section 161.001(c) itself

. We have concluded that section 161.001(c) d oes not include language impos ing a burden on the Department to provide proof that termination i s not based on the circumstances listed in the statute
. In re D.B. , No. 04

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- CV, 2019 WL 691433, at *4 (Tex. App.

— San Antonio Feb. 20, 2019, pet. filed.) ; accord In re J.D.

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. , No. 04

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- CV, 2019 WL 938290, at *3 (Tex. App.

— San Antonio Feb. 27, 2019, pet. filed ) ( “ [T] he Depar tment does not carry a burden of proof under section 161.001(c)

. ” ). S ection 161.001(c) prohibits a court from finding grounds for termination based on evidence of any of the listed circumstances. In re D.B. , 2019 WL 691433, at04

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- *4 ; In re J.D.

- V. , 2019 WL 93 8290, at *3 (noting that section 161.001(c) “merely limits the bases that a court may use to order a parental termination under section 161.001(b).”). I n the present case, the Department was not required to provide proof t hat the grounds for termination w ere not based any of the circumstances listed in section 161.001(c). See In re J.D.

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. , 2019 WL 938290, at *3 ; In re D.B. , 2019 WL 691433, at *4

. Additionally , the record does not contain any evidence that Father homeschooled E.A.M.V., was economically dis advantaged, had been charged with a nonviolent misdemeanor, administered low

- THC cannabis to E.A.M.V., or declined to have E.A.M.V. immunized . T herefore, the trial court could not have violated section 161.001(c)

. See In re D.B. , 2019 WL 691433, at *4 (con cluding the trial court could not have violated section 161.001(c) when the record did not contain any evidence of the circumstances listed in the statute)

. We overrule Father’s third issue. C ONCLUSION We affirm the trial court’s judgment. Irene Rios, J ustice