NUMBER 13-11-00683-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE INTEREST OF K. S., A CHILD

On appeal from the 377th District Court

of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela

Memorandum Opinion by Chief Justice Valdez

By three issues, appellant, William Foster, appeals from the trial court’s 

termination of his parental rights to K.S., a child, arguing the evidence is legally and 

factually insufficient to establish grounds for termination under Texas Family Code 

section 161.001. See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2011). We affirm.

I. BACKGROUND

K.S. was born August 19, 2009. She was conceived shortly after her 18-year-old 

mother left foster care and began residing with appellant, age 46, his paramour, 
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Yolanda Guajardo a/k/a Yolanda Foster (“Yolanda”), age unknown, and three of 

appellant’s adult relatives. According to appellant, K.S. was conceived during the 

course of a one-month affair that secretly took place while K.S.’s mother was staying 

with appellant, Yolanda, and appellant’s relatives. Yolanda was suspicious, but 

according to appellant, she did not know about the affair, which ended when K.S.’s 

mother moved out of the home.

A. Testimony of K.S.’s Mother

K.S.’s mother testified to a different version of events. According to her 

testimony, appellant expressed interest in having sex with her when she was 17 years 

old and still in foster care. There was no romantic affair between them, but on one 

occasion, two weeks after her 18th birthday, when she was living with appellant and 

Yolanda, appellant had sex with her. She testified that the sexual intercourse was 

nonconsensual, that she told appellant “no,” and did not remember any additional 

details because she was on medication for bipolar disorder and depression. She 

moved out of the home afterward and has been staying with friends and living on the 

streets ever since.

B. Circumstances of the Department’s Involvement

After trying to care for the child on her own, K.S.’s mother placed K.S. with the 

Montez family, long-time friends of her family. After she placed the child with the 

Montez family, K.S.’s mother vacillated between leaving the child and keeping the child 

herself. She had no stable home and could not remain stable enough to care for K.S. 

On May 21, 2010, appellee, the Texas Department of Family and Protective Services 

(“Department”), stepped in and removed K.S. from her mother’s custody. K.S. has 
3

since remained with the Montez family. Her mother later agreed to voluntarily terminate 

her parental rights to K.S.

Although appellant knew of the pregnancy, he maintained he was not the child’s 

father, had no contact with the child, made no attempt to contact the child or the child’s 

mother, and did not support the child or the child’s mother. After the Department 

removed K.S. from her mother’s custody, appellant was formally notified of his 

parentage of K.S. He demanded a genetic test to confirm the parentage of K.S. He 

was confirmed as the biological father of K.S. and was notified by the Department of this 

confirmation. At the same time, the Department developed a service plan designed to 

develop appellant’s abilities as a parent and notified appellant of the terms of the 

service plan. Appellant continued to live with Yolanda as his paramour and represented 

her to be the caregiver for K.S. Yolanda also participated in the services.

C. Testimony of Kristen Kestler

Kristen Kestler, a former employee with the Department, testified regarding 

Yolanda’s background and personal history as the wife and paramour of physically and 

sexually abusive men. She testified regarding Yolanda’s husband, identified as “Mr. 

Herrera,” who had three children with Yolanda and previously lived with her and the 

children. Herrera beat Yolanda many times in the presence of her children. In one 

such incident, witnessed by the children, he stabbed Yolanda in the back and cut her 

several times, causing her to be hospitalized. Herrera was subsequently convicted and 

imprisoned for aggravated assault. 

At some point thereafter, Yolanda became romantically involved with William 

Huff, who began living with Yolanda and her three children. One night in 2002, Yolanda 
4

found Huff disrobed and in bed with her 12 year old daughter, whose shorts were pulled 

down, which prompted an outcry and accusations of sexual abuse. Although Yolanda 

initially reported the incident, she later tried to recant, claiming she did not believe her 

daughter. At one point, she denied that anything occurred. On other occasions, she 

blamed her daughter. She took her daughter to various people in the county, including 

the district attorney’s office, to prove that she had changed her story.

Huff was prosecuted for sexual abuse, pleaded guilty, and pursuant to a plea 

bargain, received community supervision. He became a registered sex offender. While 

on probation, he returned to living with Yolanda and her three children. The Department 

discovered the situation and removed the children, placing them with their paternal 

grandparents who became managing conservators. Yolanda was given possessory 

conservatorship. 

During this process, Yolanda revealed that her daughter had made a separate 

outcry of sexual abuse involving a relative of her biological father. Yolanda, who 

continued to blame her daughter for the sexual abuse by Huff even after his conviction, 

cited this prior outcry as proof that her daughter was sexually active and “was wanting 

this to happen.” She claimed that Huff would drink a lot and that her daughter was 

therefore able to seduce him as she had done in the past with at least one other man, 

the relative of her biological father. Yolanda did not take any responsibility for what 

happened to her daughter. According to Ms. Kestler, Yolanda did not appreciate the 

severity of those situations nor did she understand that she needed to protect her 

children.
5

D. Testimony of Dr. Michelle Moran

Dr. Michelle Moran evaluated appellant and Yolanda as part of their service 

plans. Dr. Moran testified that, based on her evaluations, neither appellant nor Yolanda 

would be able to raise the child, K.S. 

With respect to Yolanda, Dr. Moran expressed concerns regarding her prior 

history of poor judgment and lack of protection of her children, her inappropriate 

expectations of children, and her passivity and dependence on appellant. Further, Dr. 

Moran was concerned that Yolanda would be physically incapable of caring for K.S.,

who was two years old at the time of trial. Yolanda has diabetes, hypertension, asthma, 

obesity, and depression and frequently could not walk more than a few steps or change 

a diaper and needed to use an oxygen tank during the summer months. According to 

Dr. Moran, Yolanda is not sufficiently agile to effectively take care of a young child.

Dr. Moran was also deeply concerned with Yolanda’s dependency issues. As an 

example, she cited Yolanda’s willingness to reconcile with Huff and to believe his

assertions of innocence even though she, with her own eyes, had seen an inappropriate 

sexual situation between Huff and her 12 year old daughter. Dr. Moran stated that her 

dependency “marks Yolanda as a very dependent individual who is easily swayed, 

perhaps naïve, gullible, lacks confidence in her own perceptions and decisions.” Dr. 

Moran stated that this is a strong indication that Yolanda will not be protective of a child. 

According to Dr. Moran, Yolanda is very likely a person who is going to put her needs 

ahead of her child’s. Dr. Moran stated that Yolanda’s history suggests that it is more 

important to her to get along with her paramour than it is to protect her child from being 

the victim of sexual abuse.
6

Dr. Moran also testified regarding appellant, noting that he has a history of 

relationship dysfunction and poor judgment. Appellant has been married to three other 

women (not including Yolanda), but because he has not been divorced from his second 

wife, it is unclear whether his third marriage was valid. Yolanda, whom he holds out as 

his common law wife, uses his last name “for important stuff that [they] have together.” 

Like appellant, she is also currently married to someone else, Herrera, from whom she 

has not sought a divorce. Appellant did not know that Yolanda is still married to 

Herrera. Dr. Moran testified that appellant’s poor judgment was demonstrated by the 

history of his three prior marriages and his failure to divorce his second wife before 

marrying his third wife and later holding Yolanda out as his common law wife. Dr. 

Moran found it significant that appellant has lost contact with two of the children from his 

second marriage, and she considered that to be an indicator that appellant is an 

“unstable” parent. 

Dr. Moran noted that appellant characterized his role in the “affair” with K.S.’s 

mother as passive, relating that “she came on to him and he resisted for some time, but 

then, you know, it occurred.” Dr. Moran believed appellant had displayed poor 

judgment in beginning the “affair,” given that K.S.’s mother had just turned 18 and 

appellant was involved in a relationship with Yolanda. Dr. Moran also noted that 

appellant did not disclose the “affair” to Yolanda until paternity of K.S. had been 

established. She was concerned about Yolanda’s anger in response to the disclosure, 

the problems this created in appellant’s relationship with Yolanda, and how the issue of 

infidelity would continue to come up if Yolanda were to become K.S.’s stepmother.
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Dr. Moran found it very significant that appellant and Yolanda lacked knowledge 

about each other’s lives. Appellant did not know about Yolanda’s involvement with the

Department and how Yolanda’s biological children had been removed from her. These 

are facts that, in Dr. Moran’s opinion, appellant should have known since he and 

Yolanda were intending to raise a child together. Yolanda did not know about the 

issues in appellant’s previous marriages or his criminal history. Based on the foregoing, 

Dr. Moran expressed serious concerns about the emotional intimacy in the relationship 

and the depth of the couple’s family commitment to K.S. 

Dr. Moran also testified regarding appellant’s criminal history and his lack of 

candor during their interview. Appellant’s criminal history includes a number of arrests;

one of them, a sexual harassment charge, resulted in a conviction. This incident 

involved appellant calling up a woman and telling her in explicit language that he 

wanted to do various sexual things to her. Appellant was also arrested for injury to a 

child, but during his interview with Dr. Moran, he could not recall what had happened or 

what he was alleged to have done. He was arrested again on a similar charge involving 

allegations of fondling a child, but again, he told Dr. Moran he had no recollection of 

what he had been accused of or what the charge entailed and he was unable to offer 

any explanation of his version of events.1 

Dr. Moran considered a charge of injury to a child to be a significant event in a 

man’s life, one he would remember. With regard to the sex offense of fondling a child, 

she was concerned about appellant’s lack of memory. It was her impression that he just 

did not want to reveal what had happened or what was suspected to have happened. In 

 

1

 Appellant’s other arrests include delivery of marijuana, possession of a prohibited weapon, and 

larceny. 
8

her opinion, he was evading the issue. She did not believe he was entirely forthcoming 

with the details he probably recollected and was making an effort to present himself 

favorably. It caused Dr. Moran concern to have someone who is not willing to be 

honest with her raise a two-year-old child such as K.S. Dr. Moran saw this as part of a 

larger pattern of dishonesty that included appellant’s concealment of his sexual activity 

with K.S.’s mother from Yolanda and his continuing to do so even after the child’s birth. 

Based on the foregoing, it was Dr. Moran’s opinion that it would not be in the best 

interest of K.S. to be raised in a home where appellant is the father and Yolanda is the 

stepmother of the child.

E. Testimony of Christi Hartley-Harvey

Christi Hartley-Harvey, a social worker and forensic psychologist who instructed 

appellant and Yolanda in parenting and homemaking in connection with their service 

plan, was also called as a witness to testify at trial. She testified that while appellant 

and Yolanda completed their assignment, she was not comfortable with their ability to 

parent a two-year-old child. 

With regard to Yolanda, Hartley-Harvey had concerns about her health, based on 

the same factors noted by Dr. Moran. She also had concerns about Yolanda’s history 

with her own biological children. Yolanda had difficulty understanding why people 

considered her not having had contact with her children for many years to be 

abandonment. Yolanda was not able to understand how she failed to protect her 

children from the abuse they had endured.

With regard to appellant, Hartley-Harvey had concerns about his past and some 

of the alleged offenses. She noted that appellant talked down to Yolanda and degraded 
9

Yolanda. This happened when they were meeting in the couple’s home and when they 

were in supervised visits with K.S. Appellant would “snap at Yolanda” and “talk to her in 

a manner in which he was, in [her] opinion, talking to a child of about six or seven.” 

According to Hartley-Harvey, Yolanda “just kind of went along with it.” She had 

concerns with Yolanda being so submissive and appellant being in total control. That 

was a “red flag” because Yolanda had a history of unhealthy relationships. HartleyHarvey was concerned that this pattern would continue and the child would not be safe.

Hartley-Harvey also testified that appellant stated several times that he did not 

feel the need to childproof his home as required by the service plan because when he 

tells his children not to do something or not to touch something, they listen to him. She 

testified that it is not reasonable for a parent to expect a two-year-old child to obey just 

because the parent says so.

Based on the foregoing, Hartley-Harvey testified that, in her opinion, appellant 

and Yolanda cannot provide a safe, stable environment for K.S.

F. Testimony of Appellant

Appellant testified at trial, telling the court, “I’m willing to take care of the child 

that I made,” which prompted the following exchange:

The Court: Well, now that you’re caught, now you want to do something.

[Appellant]: No. I’ve been wanting to. I’ve been going to counseling for 

over a year now to try to get my daughter back. Since the 

first day I found out, I’ve been trying to get her back to my 

house.

The Court: And are you also doing your best to make sure you’re 

divorced and living with somebody that’s divorced and 

setting up some kind of family that that child can be proud 

of?
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[Appellant]: Yes, sir.

The Court: What are you doing about that?

[Appellant]: We’re working on getting divorces.

The Court: What? What are you doing?

[Appellant]: She keeps telling me she’s going to call Legal Aid to help her 

and I’m trying to get some money together to get mine and 

keep up my bills at the same time.

The Court: Well, you told us a while ago you didn’t even know for sure 

that she wasn’t divorced until right now.

[Appellant]: She’s not – the one that’s in prison, I don’t think she’s 

married to him. She has a husband in Mexico that’s married 

to another woman over there, that she didn’t know he was 

married. That was before – like I said, that was before I 

even got with her. I don’t know nothing about what 

happened in her past, that’s what she’s told me. 

The Court: Well, what about what’s happened in your past? You don’t 

know if you’re divorced or not, either.

[Appellant]: I know I’m not divorced yet.

The Court: But you’re living with another woman, even though you’re 

not divorced.

[Appellant]: Yes, sir.

The Court: And claiming to be common law married to her when that’s 

necessary?

[Appellant]: I’ve never claimed to be common law married to her. Yes, 

there is times [sic] she uses my last name.

The Court: Well, yeah, that’s how she was introduced to the Court 

today, was as Yolanda Guajardo Foster.

[Appellant]: Yes, sir.

The Court: Was that just to try and confuse the Court or were those 

people that introduced her as such confused or who’s 

confused?
11

[Appellant]: She goes by Guajardo. She very seldom uses my last 

name, except for important stuff that we have together.

Appellant testified that he understood why his criminal history is a concern in this 

proceeding. He testified that he had sexual intercourse with K.S.’s mother two or three 

times. He did not know K.S.’s birth date.

G. The Trial Court’s Ruling

After hearing closing arguments, the trial court announced the decision to 

terminate appellant’s parental rights to K.S., stating in relevant part:

[T]he child is the most important part of what the Court is to consider. And 

my charge is to listen and make a determination about what is in the 

child’s best interest.

[T]here’s more to being a parent than doing some tasks that are written 

down on a service plan. And there’s more to being a parent than finally 

buying the safety features for the electrical outlets and cleaning your 

house up. There is an issue of morality and responsibility that goes into 

parenting. And parents have a moral responsibility to teach their children 

and to bring their children up to be responsible members of society without 

being threatened or forced or coerced into doing that. And what I see in 

[appellant] is a pattern that, as recently as two years ago, allowed him to 

consider his own sexual desires over a moral responsibility to society, 

which is a further reflection of what I have in the statement that was 

entered into evidence of him calling a woman and saying really ugly things 

to her.

I also see he is joined in a committed relationship with [Yolanda] who 

certainly lacks a basic perception of right and wrong in parental 

responsibility for the nurturing and maintenance of children.

I also see in [appellant] a person who has four or five other children that 

he has access to or does not have access to, whatever the case may be, 

that he visits or does not visit as is most convenient. And suddenly this 

little girl is the most important thing in his life. And that sort of doesn’t ring 

true when I look at the whole picture of who [he] is. He’s gone 49 years 

and all of a sudden this little precious package has fallen out of the sky 

and it’s the most important thing in his life and he’s going to be this whole 

new person after 49 years of being something else. 
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And so it’s my judgment that it is not in [K.S.]’s best interest for [appellant] 

to be her parent and so I’m going to order that the parental rights of 

[appellant] are terminated as to the minor child [K.S.].

II. DISCUSSION

By three issues, appellant challenges the legal and factual sufficiency of the 

evidence to support the trial court’s termination of his parental rights under Texas 

Family Code: (1) section 161.001(1)(O), for failure to comply with provisions of a court 

order that specifically established the actions necessary for the parent to obtain the 

return of the child; (2) section 161.001(1)(E), for engaging in conduct or knowingly 

placing the child with persons who engaged in conduct which endangers the physical or 

emotional well-being of the child; and (3) section 161.001(2), because termination of 

parental rights is in the best interest of the child.

A. Standard of Review

In In re J.F.C., the Texas Supreme Court outlined the procedure for conducting a 

legal sufficiency review of parental-rights termination cases as follows:

In a legal sufficiency review, a court should look at all the evidence in the 

light most favorable to the finding to determine whether a reasonable trier 

of fact could have formed a firm belief or conviction that its finding was 

true. To give appropriate deference to the factfinder’s conclusions and the 

role of a court conducting a legal sufficiency review, looking at the 

evidence in the light most favorable to the judgment means that a 

reviewing court must assume that the factfinder resolved disputed facts in 

favor of its finding if a reasonable factfinder could do so. A corollary to this 

requirement is that a court should disregard all evidence that a reasonable 

factfinder could have disbelieved or found to have been incredible. This 

does not mean that a court must disregard all evidence that does not 

support the finding. Disregarding undisputed facts that do not support the 

finding could skew the analysis of whether there is clear and convincing 

evidence.

If, after conducting its legal sufficiency review of the record evidence, a 

court determines that no reasonable factfinder could form a firm belief or 

conviction that the matter that must be proven is true, then that court must 
13

conclude that the evidence is legally insufficient. Rendition of judgment in 

favor of the parent would generally be required if there is legally 

insufficient evidence.

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (citations omitted); see also In re J.L., 163 

S.W.3d 79, 85 (Tex. 2005) (stating that the reviewing court must “look at all the 

evidence in the light most favorable to the finding to determine whether a reasonable 

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

In a factual sufficiency review, “[w]e must determine whether, on the entire 

record, a fact-finder could reasonably form a firm conviction or belief that the parent 

violated a provision of section 161.001(1) and that the termination of the parent’s 

parental rights would be in the best interest of the child.” In re M.C.T., 250 S.W.3d 161, 

168 (Tex. App.—Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d at 28). Under 

this standard, we must consider:

[W]hether the disputed evidence is such that a reasonable factfinder could 

not have resolved the disputed evidence in favor of its finding. 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, 

then the evidence is factually insufficient.

In re J.F.C., 96 S.W.3d at 266 (citations omitted). An appellate court’s review must not 

be so rigorous that the only findings that could withstand review are those established 

beyond a reasonable doubt. See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

B. Analysis

Under Texas law, the parent-child relationship may be terminated upon a finding 

supported by clear and convincing evidence that the parent engaged in certain conduct 

specified in section 161.001 and termination is in the child’s best interest. In re C.H., 89 

S.W.3d at 23. Both elements must be established; termination may not be based solely 
14

on the best interest of the child as determined by the trier of fact. Tex. Dep’t of Human 

Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

In this case, appellant challenges the trial court’s finding that he “engaged in 

conduct or knowingly placed the child with persons who engaged in conduct which 

endanger[ed] the physical or emotional well-being of the child” and that termination of 

the parent-child relationship is in the child’s best interest. See TEX. FAM. CODE ANN. § 

161.001(1)(E), (2). Appellant also challenges the trial court’s finding that he failed to

comply with the provisions of a court order that specifically established the actions 

necessary for him to obtain the return of K.S. See id. § 161.001(1)(O).

1. Conduct Endangering the Child

Section 161.001(1)(E) requires the court to look at the parent’s conduct alone, 

including actions or omissions or failures to act. In re D.T., 34 S.W.3d 625, 634 (Tex. 

App.—Fort Worth 2000, pet. denied). “Endanger” under section 161.001(1)(E) means 

to expose to loss or injury, to jeopardize. Boyd, 727 S.W.2d at 533. The term means 

more than a threat of “metaphysical injury,” but it is not necessary that the conduct be 

directed at the child or that the child actually suffer injury. Id. Nevertheless, there must 

be evidence of endangerment to the child’s physical or emotional well-being as the 

direct result of the parent’s conduct. In re R.D., 955 S.W.2d 364, 366 (Tex. App.—San 

Antonio 1997, pet. denied); Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 

S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no writ). 

Under subsection (E), the relevant inquiry is whether evidence exists that the 

endangerment of the child’s physical and emotional well-being was the result of the 

parent’s conduct, including acts and omissions. Castaneda v. Tex. Dep’t of Protective & 
15

Regulatory Servs., 148 S.W.3d 509, 522 (Tex. App.—El Paso 2004, pet. denied); In re 

R.D., 955 S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied); Dupree, 907 

S.W.2d at 83-84. The conduct to be examined includes what the parents did both 

before and after the child was born. Castaneda, 148 S.W.3d at 522; In re D.M., 58 

S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.); Dupree, 907 S.W.2d at 84. To 

be relevant, the conduct does not have to have been directed at the child, nor must 

actual harm result to the child from the conduct. Castaneda, 148 S.W.3d at 522; 

Dupree, 907 S.W.2d at 84; In re C.D., 664 S.W.2d 851, 853 (Tex. App.—Fort Worth 

1984, no writ). Additionally, termination under subsection (E) must be based on more 

than a single act or omission; a voluntary, deliberate, and conscious course of conduct 

by the parent is required. Castaneda, 148 S.W.3d at 522; In re K.M.M., 993 S.W.2d 

225, 228 (Tex. App.—Eastland 1999, no pet.). The specific danger to the child’s wellbeing need not be established as an independent proposition, but may be inferred from 

parental misconduct. Castaneda, 148 S.W.3d at 522-23; In re N.K., 99 S.W.3d 295, 

300 (Tex. App.—Texarkana 2003, no pet.).

Our review of the record in the light most favorable to the trial court’s findings 

reveals more than a scintilla of evidence to support the finding that appellant engaged in 

a course of conduct which endangered K.S.’s physical and emotional well-being. As 

summarized above, there was testimony from witnesses, including Dr. Moran, HartleyHarvey, and appellant, that appellant has been engaged in a long-term course of 

conduct involving marital infidelity, dishonesty, sexual immorality, and criminal 

misconduct of a sexual nature. The evidence demonstrated that appellant’s course of 
16

conduct involved both poor judgment and exploitative, even predatory, behavior towards 

women and children. 

The court also heard testimony about appellant’s relationship with his paramour, 

Yolanda, who has a history of being exploited and abused. Yolanda, whom appellant 

identified as the caregiver for K.S., failed to protect her own biological children against a 

known sexual predator. Instead, she chose to reconcile with him and blamed her 12-

year-old daughter for being a seductress.

There was ample testimony from which the court could find that Yolanda’s course 

of conduct was continuing with appellant, as demonstrated by her willingness to “go 

along with” appellant’s abusive conduct in talking down to her like a child during visits 

with K.S. and Hartley-Harvey. At the same time, appellant demonstrated his

unreasonable expectations for K.S. by telling Hartley-Harvey that the two-year-old child

would listen to him and do whatever he says.

We conclude that the foregoing is legally sufficient to support the trial court’s 

finding.

Appellant has also challenged the factual sufficiency of the evidence. As noted 

above, the standard of review for a factual sufficiency challenge requires the reviewing 

court to consider the entire record. J.F.C., 96 S.W.3d at 266. In support of his 

challenge, appellant relies on his testimony that he did not know K.S. was his child until 

he was notified by the Department. Appellant argues that he could not have engaged in 

a course of conduct that endangered the child because he had no knowledge of 

paternity and was not in possession of the child.
17

Knowledge of paternity is not a prerequisite to a finding of course of conduct 

endangering a child under section 161.001(1)(E). See In re M.J.M.L., 31 S.W.3d 347, 

351 (Tex. App.—San Antonio 2000, pet. denied) (“[W]hile knowledge of paternity is a 

prerequisite to a showing of knowing placement of a child in an endangering 

environment, it is not a prerequisite to a showing of a parental course of conduct which 

endangers a child under section 161.001(1)(E).”). Furthermore, to the extent 

appellant’s argument is based on the fact that he was not in possession of K.S., he is 

arguing that there is no evidence of actual harm to the child, which is not required for a 

finding of endangerment. See Boyd, 727 S.W.2d at 533 (“[I]t is not necessary that the 

conduct be directed at the child or that the child actually suffer injury.”).

Appellant’s second issue is overruled.

2. Best Interest of Child

In his third issue, appellant challenges the sufficiency of the evidence to prove 

that termination is in the best interest of the child. In deciding whether the evidence is 

sufficient to support the trial court’s finding that termination is in the child’s best interest, 

we apply the non-exclusive factors set forth in Holley v. Adams, 544 S.W.2d 367, 371-

72 (Tex. 1976). Those factors include: (1) the desires of the child; (2) the emotional 

and physical needs of the child now and in the future; (3) the emotional and physical 

danger to the child now and in the future; (4) the parental abilities of the individuals 

seeking custody; (5) the plans for the child by these individuals; (6) the stability of the 

home; (7) the acts or omissions of the parent which may indicate that the existing 

parent-child relationship is not a proper one; and (8) any excuse for the acts or 

omissions of the parent. See id.
18

Our review of the record in the light most favorable to the trial court’s findings 

reveals more than a scintilla of evidence to support the finding that termination of 

appellant’s parent-child relationship with K.S. is in the child’s best interest. Although 

appellant has challenged the trial court’s finding of endangerment, we have found the 

evidence both legally and factually sufficient to support the finding of endangerment and 

we believe that the finding is highly probative on the issue of whether termination is in 

the child’s best interest. While it is true that proof of acts or omissions under section 

161.001(1) does not relieve the petitioner from proving the best interest of the child, the 

same evidence may be probative of both issues. In re C.H., 89 S.W.3d at 28 (citing 

Holley, 544 S.W.2d at 370; Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex. 1976)).

Furthermore, the Texas Supreme Court has never held that the Holley factors

are exhaustive, or that all such considerations must be proved as a condition precedent 

to parental termination. In re C.H., 89 S.W.3d at 27. As the Court has explained, “The 

absence of evidence about some of these considerations 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 undisputed that the parental 

relationship endangered the safety of the child.” Id.

In addition to the evidence supporting the trial court’s finding of endangerment, 

there was also evidence regarding the inability of appellant and Yolanda to care for and 

keep up with a toddler, both physically and emotionally. The record also contains 

evidence of appellant’s inability to provide a stable home and evidence that the parentchild relationship is not a proper one. Yolanda’s status as caregiver and step-mother to 

K.S. was also problematic in light of the fact that K.S. was conceived as a result of 
19

appellant’s infidelity in his relationship with Yolanda. It was also significant that both 

appellant and Yolanda are married to other people and have histories of abandoning 

and losing track of their children from those other marriages. Finally, we note that there 

was evidence that the Department has permitted K.S. to remain with the family that her 

mother chose for her, which is willing to adopt her. See In re C.H., 89 S.W.3d at 28. 

(“Evidence about placement plans and adoption are, of course, relevant to best 

interest.”).

We conclude that the foregoing evidence is legally sufficient to support the trial 

court’s finding that termination of the parent-child relationship is in the best interest of 

K.S. Furthermore, we note that in challenging the factual sufficiency of the evidence, 

appellant has not directed this Court to any evidence that is “so significant that a 

factfinder could not reasonably have formed a firm belief or conviction” that termination 

of the parent-child relationship is in the best interest of the child. See J.F.C., 96 S.W.3d 

at 266. The evidence on which appellant relies is his own testimony, which the trial 

court found “doesn’t ring true.” See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) 

(“recognizing that the factfinder, not the appellate court, is the sole arbiter of the 

witnesses’ credibility and demeanor”).

Appellant’s third issue is overruled.2

 

2

 In his first issue, appellant argues that termination of his parental rights was improper 

under section 161.001(1)(O), for failure to comply with provisions of a court order that 

specifically established the actions necessary for the parent to obtain the return of the child. 

However, even if this challenge were sustained, it would not entitle appellant to reversal of the 

trial court’s judgment because we have concluded that the evidence is legally and factually 

sufficient to support termination under section 161.001(1)(E) and (2). Accordingly, we need not 

address appellant’s first issue. See TEX. R. APP. P. 47.1.
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III. CONCLUSION

The judgment of the trial court is affirmed.

___________________

ROGELIO VALDEZ

Chief Justice

Delivered and filed the 

19th day of July, 2012.