1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by as signmen t.
2 Donald filed his brief on July 27, 2004, assertin g five po ints of e rror. With thefourth point, he attac ked the legal and factual sufficiency of the evi dence to support the trial court’s finding in its June 9 th termination order that he had executed an “unrevo ked o r irrevocab le affidavit of relinquishment of parental rights.” On August 12 th , the trial cour t signed a nunc pro tunc termination order deleting the finding challenged by Donald. The NO. 07-04-0334-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E DECEMBER 14, 2004

______________________________ IN THE INTEREST OF M.B., A CHILD

_________________________________ FROM THE 46 TH DISTRICT COURT OF WILBARGER COUNTY; NO. 23,11 6; HONORA BLE TOM N EELY, JU DGE

_______________________________ Before QUINN and REAVIS, JJ. and BOYD, S.J. 1
MEMORAND UM OPINION Appellant

Donald Ray Fleeks appeals from an o rder followi ng a bench trial terminating his pare ntal righ ts to his daughter M.B. Presenting four 2 points of error, Donaldcorrected order has been made a part of the record on appeal. Discerning that Donald’ s

pointwas rendered moot with the filing of thenunc pro t unc order , we wil l not add ress it.

3 Byits brie f, the Dep artment cl aimed tha t Derek A ndrews, M .B.’s cas eworker, testified that M.B. was born at 23 weeks. Our review of the record, however , reveals that he, in fact, asserted she was born at 28 weeks gestation

. 2 contends the evid ence was legall y and fac

tually i nsuffici ent: (1) to sup port the grounds for termination advanced by the Department of Family and Protective S ervices and found by the trial court; and (2) to establish that termination of hisparental rights was in M.B.’s best interest. We affirm

. M.B. was born on March 11, 2003 at 28 3 weeks ge station. Both sheand her mother, Tiffany Barber, teste d positi ve for cocaine at the time. M.B.’s lungs were not fully developed because of her prematurity, and she suffered from significant hearing loss and muscle rigidity as a result of her exposure to drugs in utero

. She spent the first six weeks
o f her lifein the h ospital. In April , the Dep artment ob tained conservato rship of M.B. A s soon as she was strong enough to leave the hospital, M.B. was released to a foster family, with whom sh e has liv ed ever since. M.B. has never lived with ei ther of her biological parents. Following a trial on the Department’s termination petition in June of 2004, the trial court, finding by clear and convincing evidence that termination was in M.B.’s best interest , terminated Tiffany and Donald’s parental rights. As grou nds to su pport its termination order with respectto Donald, the trial court found that he: (1) knowingly placed or allowed M.B. to remain in conditions or surroundings which enda ngered her physical or emotional well-4 Donald’s fourth point of error attacks the sufficiency of the court’s finding that h e

executed an irrevocable affidavit of relinquishment. Because the reco rd rev eals that the trial court deleted that finding in its nunc pro tunc termination order, we need not address his fourt h point. 3 b eing; (2) engaged in conduct or knowingly pl aced M.B. with persons wh o engaged i n conductthat endangered her physical or emotional well-be ing; and (3) faile d to compl y with the provisi ons o f a court order that specifically established the actions n ecessary for him to obtain the return of M.B. after she had been in the con servatorship of the Department for not less than nine months as a result of her removal fr om him for ab use or neglec t. Tex. Fam. CodeAnn. § 1 61.001(1 )(D), (E), & (O) (Verno n 2002). Byhis seco nd, third , and fift h 4 points of error, Donald contends the evidence is legallyand factu ally ins ufficien t t o support the court’s findings as to the grounds for termination. We disagree. In proceedings to terminate the parent-child rel atio nship, the petitioner

must establish one or more acts or omissions enumerated by statute and must additionally

prove that termination of the parent-child relationship is in the best interest of the child. Tex. Fam. Code Ann. § 161.001. Both elements must be established and proof of one element does not relieve the petitioner of the burden o f pr oving th e other. See Holleyv. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Because termination of parental rights is of such weight and gravity, due process requires the petitioner to justify termination by clear and conv incing e vidence. I n Interest of G.M., 59 6 S.W.2d 8 46, 847 ( Tex. 198 0). Clear and conv incing e vidence is that me asure or degree of proof which will produce in the4

mind of the tri er of fact a firm bel ief or co nvicti on as to the trut h of the allegations sought to be esta blished

. Id

. In a legal sufficiency review of the evidenceto support an order terminating parental rights, we look at all the evidence in the light most favorable to the finding to determine wheth er a reasonab le trier of fact cou ld have formed a f irm beli ef or conv iction th at its finding was true . In re J.F.C ., 96 S.W.3 d 256, 26 6 (Tex. 2 002). Togive ap propriate deference to the factfinder's conclusions an d the role of a court conducting a legal sufficiencyreview, look ing at t he evidence in the light most favorable to the judgment
means thata review ing cour t must ass ume the fa ctfinder resolved dispute d facts in favor of its finding if a reas onable f actfinde r could d o so. Id . Thus, we disregard all evidence that
a reasona ble factf

inder co uld havedisbeli eved or fo und to ha ve been i ncredibl e. Id

. The standard for reviewing the factual sufficiency of termination findings is whether the evidence i s such th at a reasonable factfinder could form a firm belief or conviction aboutthe truth of the De partment' s allega tions. In re C.H., 89 S.W.3d 17, 25 (T ex. 2002 ). Under that standard, we consider whether the disputed evidence is such that

a reasonable factfinder

could n ot have re solved th e disputed evide nce in fa vor of its finding

. In re J.F.C. , 96 S.W.3d at 266. If, in light of the entire record, the disputed evidence that a reasonable fac tfinder

could not have credited in favor of the findin g is so significant that a factfind e r could not reasonably have formed a firm belief or conviction, then the evidenceis factually insufficie nt. Id

. When, as in this case, findings of fact and conclusions of law were not5

requested, and none were filed, we must presume thatevery disputed fact issue was found by the trial court in support of the judgment rendered. Fields v. Texas Emp. Ins. Ass'n, 565 S.W.2d 327, 329 (Tex.Civ.App.–Amarillo 1978, writ ref'd n.r.e.). Finally, we observe that onlyone statutory ground i s re quired to terminate parental rights under section 161.001. See In re S.F., 3 2 S.W.3d 3 18, 320 ( Tex.App .–San An tonio 20 00, no pe t.). There fore we will affirm the termination order if there is both legally and factually sufficient evidence on any statu tory groun d upon w hich thetrial co urt relie d in termi nating. See id

. As noted previously, one of the grounds upon wh ich the trial court relied in granting termination was that Donald failed to comply with the provisions of a court order that established the actions necessary for him to obtain the return of his daughte r. Tex. F am. Code Ann. § 161.001(1)(O). Section 161.001(1)(O) provides that parental rights may be terminated if

the court

finds by clear an d convin cing evi dence tha t (1) the p arent fai led to complywith the provisions of a court order that specifically established the actions
necessar

y for him to obtain the return of the child (2) who ha s been i n the permanent or temporary

managing conservatorship of the Departmentfor not less than nine months, and (3) the child’s removal from the parent was a result of ab use or neglect of the child. It i s undisputed that the Department had temporary conservatorship of M.B. from April 23, 2003 until the time of trial in June of 2004. Addi tionally, when the tri al court granted the Department’s original petition, it did so, at least in part, on the basis of the affidavit of M.B.’s caseworker. According to him, the Department became interested in removing M.B. from her parent’s cus tody when it received a report from the hospital where she was being5 The service plan was filed w ith the court on A ugust 23 , 2003. The document reflects, however, that the Department“gave or mailed a copy of this plan to the parents: 7/9/2003 .”

6 See Tex. Fa m. Code A nn. § 262 .201 (Ver non 2002 ). 6 trea ted th at hospital personnel were unable to locate the parents. Hospital officials explained that the parents h ad negle cted to leave aphone n umber and attemptsto contact them through rela tives had been futile. Furthermore, as of the date of M.B.’s removal, neither Donald nor Tiffany had visited their daughter in nearly

a month. We conclude the evidence establishes that M.B. was removed as a result of neglect by Donal d and Tiffany. The undisputed evidence also establishes that Donald failed to comply with asingle requirementof the court order establishing the actions necessary to obtain the return of his daughter

. In July of 2003, 5 the Department prepared a service plan detailing the various tasks Donald was required to perform as a prerequisite to obtaining the return of his daughter

. The caseworker who prepared the plan ex plained to Donald that “he needed to complete[the] services in order to have his chi ld p laced back with him.” When the caseworker

reviewed the plan with Don ald a nd requested that he sign it, he asked if she “could guarantee him that he would get his child back if h e signed and coop erated” w ith it. After the caseworker

responded that she could make him no promises, Do nald told her that he did not, then, “wa nt to was te his ti me” by com plying w ith it. Followi ng th e adversa ry hearing, 6 the court, incorporating the terms of the service plan, en tered temp orary orde rs requiring Donald and Tiffany to (1) undergo psychologi cal examinations, (2) participate in7

counseling, (3) undergo drug testing, and (4) submit to drug asses sments and any recommended in-patie nt or out- pati ent treatment. Donald’s caseworker testified at the termination trial that he completed none of those tasks. In fact, the record demonstrates that the only affirmative action Donald hastaken with respect to proving his ability to p arent M.B. is to request vi sitat ion with her. Still, as of the date of the trial, Donald had not requested to see his child in three months. Looking at all of the evi dence in the light most favorable to the trial court’s findings, we conclude that a reasonable trier of fact could have formed a firm belief

or conviction that

Donald failed to

comply w ith the p rovision s of a cou rt order that spec ificall y establi shed the actions n ecessary for him to obtain the return of his child, who had been in the temporary managing conservatorship of the Department. The evidence is lega lly suffi cient to support th e trial court’s fi nding on this gro und.
Donald maintains that, in order to preva il u nder section 161.001(1)(O), “the Departmenthad to first prove there was [sic] ci rcumstanc es and orders relating to those circumstances under which the child would have bee n returne d to [him] had [he] complied with those ord ers.” Because, according to Donald, there was no circumstance under which the Department was, in f act, going to grant him possession of his daug hter, section 161.001( 1)(O) could not have served as a ground for termination. The singu lar p iece of evidence Donald advances in supp ortof this argument is his caseworker’s testimony that she could not guarantee that he would rega in possession of M.B. if he complied with the provisions of

the service plan. We cann ot agree with Don ald that the casew orker’s re mark indicated a determination on the part of the Department that it never would have allowed8

him to regain custody of his daughter. In fact, given tha t th e responsibility for reviewing Donald’s compliance with the service plan, ultimately, rested with a judge or a jury, not hi s caseworker, her ca utionary statement

was app ropriate. Additionally, Donald maintains section 161.001( 1)(O) was inapplicable because he “was never furnished with a copy of this Service P lan . . . and, theref ore, h e had no opportun ity to comply w ith it.” In support of this argument Donald offers the testimony of his caseworker who concede d that, af ter Donal d refused to sign the service plan, she did notgive him a written copy of it. The casew orker agreed thatDonald “wouldn’t know what
was in the plan if

[she] didn’t leave the plan with him.” While Donald may not have received a copy of the service plan, the record showshe was f ully awa re of what was expected of him under both the service plan an d th e temporary orders. Indeed, from the record we discern that Donald appeared and announced ready at a status hearing in Sept ember of 2003 following which the t rial court entered an order approving and adopting “the permanencyplans and recommendations for the child, set out i n the serv ice plan s filed w ith the Court.” I n the same order, th e court ad vised “t he p arents that progress under the service plan [was to] be reviewed at all subse quent he ari ngs.” Thus, under the circumstances, we conclude a reasonable factfinder could have formed a firm conviction
or belief t hat Dona ld faile d to compl y with th e provisi ons of a court orde r that specif ically established the actions necessary for him to obtain the return of his child, who had been in the temporary managing conservatorship of the De partment. See In re C.H. , 89 S.W.3d9

at 25. In short, the evidence was factually sufficient to support the trial court’s finding under section 161.001(1)(O). Appellant’s fifth point of error is overruled. Having found there to be legally and factually sufficient evidence to support at least
one of the sta tutory gro unds upo n which the trial court rel ied in o rdering term ination of Donald’s parental rights, we need notaddress the remaining two grounds upon which the trial court rel ied. See In re S.F. , 32 S.W.3d a t 320. Donald’s second and third points of error are overruled. Byhis first point of error, Donald claims the evidence was le gally and factually insufficient to support the trial court’s determination that termi nation o f his par ental rig hts
was in M.B.’ s best in terest. Wedisagre e. This portion of our inquiry proceeds from the policy-based presumption that the best interest of a child is usually served by preserving the parent-child relationship. Wilson v. State, 116 S.W.3d 9 23, 929 (Tex.App. –Dallas 2003,
no pet.). In determining the b est i nterest of the child, a number of factors have been considered including: (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 in dividua ls seeki ng custod y; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stabilit y of the home; (8) the acts o r omissions of the parent which may indicate that the existing parent-child relationship is not a pr oper one ; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams , 544 S.W.2d at 371-72. These factors are not10

exhaustive; some listed factors may be inapplicable to some cases, whil e other factors not
on the list may also be considered whe n app ropriate. In re C.H. , 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of th e child. Id . In contrast, the presence of scant evidence relevant to each Holley factor will not support such a finding. Id

. Evidence that proves one or more statutory grounds for termination may also con stitute evidence illustrating that ter mination is in the ch ild's be st intere st. Id . at 28. The Departmentsimply must have presented enough evidence from which the factfinder could reasonablyhave formed a firm conviction or belief that the child's best interest warranted terminati on. In reD.S.A., 1 13 S.W.2d 567, 574 (Tex.Ap p.--Amaril lo 2003, no pet.). Here, the recor

d reveal s that: (1)

M. B. is a “special needs” child who requires nebulizer treatments to aid her breathing, occupational therapy to help with muscle rigidity, medicine two to three times a day for reflux, and speec h therapy to assist with her swallowing deficiencies; (2) M.B.’s condition requires her to attend doctor’s

appoint ments in Fort Worth every month to six weeks; (3) there is a possibility that M.B. may grow out of
some of her special needs, but some of them may “stay with he r”; (4) Donald was not, by his own admission, “in a stableconditi on [at thetime of tr ial] totake care of her or either put her nowhere”; (5) M.B.’s caseworker believe d that she

needed a stableenviron ment, that , because of her fragile health, she could not live the transient life offered by her father, and that if she was returned to Donald, she would be in danger of physical or emotional stress; (6) M.B.’s foster mother is a registered nurse who worked in the neonatal ICU and was11

familiar with man y of the tr

eatmentsM.B. required; (7) M.B.’s foster family is the only family she has ever known, and they desire to adopt her; an d (8) while Donald refus ed to say whether he used d rugs with T iffany while she was pregnant, he did no t believe “that the drugs have got anything to do by the way M.B. is so slow, becauseher mamais likethat.” Donald assertsthat the Department “failed to establish how, if at all, [he] would adversely affect the child’s

present a nd futureemotiona l and ph ysical n eeds.” Th e record s upports
an opposite conclusi on. Furthermore, assuming the Department failed to establish that Holley factor, there is ample evidence of the others to justify the trial co urt’s decision that termination of Donald’s parental rights was in M.B.’sbest interest. See Leal v. Texas Dep’t of Protective & Regulatory Services, 25 S.W.3d 315, 318(Tex.Ap p.–Austi n 2000, n o pet.) (noting that a fi nder of fa ct is not required to consi der all of the lis ted fa cto rs). Indeed, undisputed evidence established that Donald has exhibited a pattern of condu ct that i s inimical to the ve ry idea of child-r earing. In re C.H. , 89 S.W.3d at 28. Thus, without looking at the evidence in the light most favorable to the verdict, we conclude both the disputed and undisputed evidence favoring and disfavoring the verdictpermitted a reasonable factfinder to form a firm conviction and belief that termination of the parent-child relationship was in the bestinterest of M.B. In re D.S.A., 113 S.W.3d 567, 575 (Tex.App.–Amarillo 2003, no pet.). Appellant’s first point of error is overruled.
Accordin gly, the judgment of the tria l court i s affirmed

. Don H. Reavis Justice