in the Interest of A.M.T., a Child

Affirmed and Memorandum Opinion filed May 14, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-01084-CV
IN THE INTEREST OF A.M.T., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2017-05757J
MEMORANDUM OPINION
Appellant A.T. (“Father”) appeals the trial court’s final decree terminating his
parental rights with respect to his child A.M.T. (“Ana”).1 The trial court terminated
Father’s parental rights on predicate grounds of constructive abandonment and
failure to comply with the service plan for reunification. See generally Tex. Fam.
Code Ann. § 161.001(b)(1)(N) and (O). The trial court further found that termination
of Father’s rights was in Ana’s best interest. In three issues, Father challenges the
1
Ana is a pseudonym. Pursuant to Texas Rule of Appellate Procedure 9.8, we use fictitious
names to identify the minor and other family members involved in this case. See Tex. R. App. P.
9.8.
legal and factual sufficiency of the evidence to support the trial court’s findings on
each predicate ground, as well as the best interest finding. Father does not challenge
the appointment of the Texas Department of Family and Protective Services as Ana’s
managing conservator. Because we conclude the evidence is legally and factually
sufficient to support the trial court’s findings, we affirm the judgment.
BACKGROUND
I. Pretrial Proceedings
Ana was born November 26, 2017. Two days later the Department received a
referral of neglectful supervision because both Mother and the newborn Ana tested
positive for opiates. Mother admitted to taking someone else’s medication while
pregnant with Ana. An anonymous caller spoke with the reporter, a social worker at
the hospital, about Mother and her history of drug use in Ohio. The anonymous caller
mentioned two other children in Ohio and possible heroin use by Mother. The
referral noted that another intake referral was made to the Ohio Child Service Bureau
reporting that Mother had an open case involving her three-year-old son.
Ana experienced opiate withdrawal symptoms at birth. Mother’s only support
in Texas was the friend who gave her opiates. Ana’s maternal grandmother was not
a suitable placement alternative because the grandmother had no stable housing and
a history of alcoholism. The maternal great-grandmother was contacted but refused
placement because she already had two of Mother’s children in her care. Mother
provided Father’s name but did not have contact information for him. Mother told
investigators that Father lived in Ohio and Mother’s only method of communication
with Father was through Facebook Messenger. Mother was unwilling or unable to
provide any alternate placement for Ana. Mother fled the hospital shortly after Ana’s
birth.
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The Department requested to be named temporary managing conservator of
Ana based on its belief that there was a continuing danger to Ana’s physical health
or safety if she were returned to Mother and reasonable efforts had been made to
prevent removal.
Initially a family service plan was created for Father in which he was required
to complete a DNA test to establish paternity. The trial court signed a status hearing
order on February 1, 2018, which stated that Father had reviewed and understood
the service plan and had been advised that “unless he is willing and able to provide
the child with a safe environment, even with the assistance of a service plan, within
the reasonable period of time specified in the plan, his parental and custodial duties
and rights may be subject to restriction or to termination or the child may not be
returned to him.” Father completed DNA testing and the trial court signed an
ordering establishing paternity. On February 28, 2018 Father was served with the
petition for termination.
On October 19, 2018, a permanency report was filed by the Department’s
caseworker. The report noted that DNA testing established that Father was Ana’s
father. The report further noted that Father’s drug test conducted in May 2018 was
positive for cocaine. The report contained an address for Father and Father’s attorney
and noted that the Department notified Father and Mother that the Department was
named temporary managing conservator of the child. The report also noted that the
caseworker mailed a new family service plan to Father in which Father was required
to “complete parenting classes, maintain stable housing and income, random drug
test, [and] substance abuse assessment.” The caseworker requested that the family
service plan be made an order of the court. At that time the Department had
conducted a “due diligence” search for Mother but was unable to locate her.
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II. Trial
The parties proceeded to a bench trial on November 8, 2018. Neither of Ana’s
parents appeared for trial. The returns of citation, family service plans, and Father’s
positive drug test results were admitted into evidence without objection.
Jasmine Smith, the conservatorship caseworker, testified that Ana was ten or
eleven months’ old at the time of trial. Ana went through opiate withdrawal after
birth but had not experienced developmental issues as a result of being born
dependent on opiates. Ana has been with her foster family since leaving the hospital
after birth.
After the amended service plan was created Father participated in one random
drug test, which yielded positive results for cocaine. Smith testified that whenever
she spoke with Father he did not have stable housing for Ana. Father also told Smith
he recently graduated from school and that he was unable to find a job because he
was in school. Father lived in Ohio and was aware that Ana was living in the
Department’s care but never visited her. The Department ensured that both parents
had contact information for service providers to aid in completion of the service
plan. When the service plan was created Smith explained to Father that his rights
could be restricted or terminated if he did not comply with the service plan. Smith
testified that the Department made reasonable efforts to return Ana to Father.
With regard to Ana’s best interest, Smith testified that the foster parents are
the only parents Ana has known. Ana is happy and giggling with her foster father
and is bonded with him. The foster parents want to adopt Ana, have a safe, stable
home, and are willing to provide for Ana in the future.
On cross-examination Smith was asked whether Ana’s paternal grandfather
had been considered as a potential placement for Ana. Smith testified that Father
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asked that the grandfather be considered, and Father told Smith he would advise of
a date on which a home study could be conducted. Smith explained to Father that
Ana’s paternal grandfather could be considered for placement if the Department
could conduct a home study. Smith told Father that she needed to schedule the visit
in advance because it would require flying to Ohio. The home visit was not
conducted because Father did not follow up with Smith about a home visit.
Sandra Nassif, the Child Advocates volunteer, recommended termination of
the parents’ rights due to “lack of proof to show a stable environment.” Nassif had
visited Ana and her foster parents. Ana was very happy and developmentally on
track. If Ana were to develop any special needs due to her in utero drug exposure
the foster parents would be able to access services to care for her.
At the conclusion of testimony, the trial court terminated Father’s rights based
on the predicate grounds of constructive abandonment and failure to follow a service
plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(N) & (O).
STANDARDS OF REVIEW
The involuntary termination of parental rights implicates fundamental
constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A.,
374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Because of
the severity and permanency of terminating the parental relationship, Texas requires
clear and convincing evidence to support such an order. See generally Tex. Fam.
Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).
Father challenges on appeal the legal and factual sufficiency of the evidence
supporting the trial court’s order terminating Father’s parental rights pursuant to
Texas Family Code section 161.001(b). Section 161.001(b) permits the termination
of a parent-child relationship if the trial court finds by clear and convincing evidence
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that (1) one or more predicate acts enumerated in section 161.001(b)(1) was
committed, and (2) termination is in the best interest of the child. “Clear and
convincing evidence” means “the measure or degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the truth of the allegations
sought to be established.” Tex. Fam. Code Ann. § 101.007; In re J.F.C., 96 S.W.3d
at 264.
Reviewing Father’s legal sufficiency challenge under the clear-and-
convincing evidentiary standard, we “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.” In re J.O.A., 283 S.W.3d
336, 344 (Tex. 2009). We assume that the fact finder resolved disputed facts in favor
of its finding if a reasonable fact finder could do so, and we disregard all evidence
that a reasonable fact finder could have disbelieved. In re G.M.G., 444 S.W.3d 46,
52 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
In reviewing termination findings for factual sufficiency of the evidence, we
consider and weigh all the evidence, including disputed or conflicting evidence. In
re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed evidence
that a reasonable fact finder could not have credited in favor of the finding is so
significant that a fact finder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” Id. We give due deference to
the fact finder’s findings and we do not substitute our judgment for that of the fact
finder. In re H.R.M., 209 S.W.3d. 105, 108 (Tex. 2006) (per curiam).
ANALYSIS
Father asserts that the evidence is legally and factually insufficient to support
the trial court’s predicate termination findings with respect to constructive
abandonment and failure to comply with the service plan for reunification. See
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generally Tex. Fam. Code Ann. § 161.001(b)(1)(N) & (O). Father also challenges
the trial court’s finding that termination of his parental rights was in Ana’s best
interest. We address these challenges below.
I. Predicate Termination Findings
The trial court made predicate termination findings pursuant to Texas Family
Code section 161.001(b)(1)(N) and (O). Under section 161.001(b)(1), parental rights
may be terminated if the fact finder finds by clear and convincing evidence that the
parent has (inter alia):
(N) constructively abandoned the child who has been in the permanent
or temporary managing conservatorship of the Department of Family
and Protective Services for not less than six months, and
(i) the department has made reasonable efforts to return the child
to the parent;
(ii) the parent has not regularly visited or maintained significant
contact with the child; and
(iii) the parent has demonstrated an inability to provide the child
with a safe environment; [or]
(O) failed to comply with the provisions of a court order that
specifically established the actions necessary for the parent to obtain
the return of the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the child’s removal
from the parent under Chapter 262 for abuse or neglect of the child[.]”
Tex. Fam. Code Ann. § 161.001(b)(1)(N) & (O).
Only one predicate finding under section 161.001(b)(1) is necessary to
support a judgment of termination when there also is a finding that termination is in
the child’s best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We
address the trial court’s constructive abandonment finding under subsection
161.001(b)(1)(N).
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To prove constructive abandonment, clear and convincing evidence must
establish that the child has been in the custody of the Department for at least six
months and: (1) the Department made reasonable efforts to return the child to the
parent; (2) the parent has not regularly visited or maintained significant contact with
the child; and (3) the parent has demonstrated an inability to provide the child with
a safe environment. See Tex. Fam. Code Ann. § 161.001(b)(1)(N). The first element
focuses on the Department’s conduct; the second and third elements focus on the
parent’s conduct. In re A.L.H., 468 S.W.3d 738, 744 (Tex. App.—Houston [14th
Dist.] 2015, no pet.). Father does not challenge the sufficiency of the evidence to
support the finding that Ana was in the Department’s care for more than six months.
A. Reasonable Effort to Return Child to Parent
In addressing the first element, we note that returning a child to a parent under
section 161.001(b)(1)(N)(i) does not necessarily mean that the child must be
physically delivered to the parent. In re V.D.A., No. 14-14-00561-CV, 2014 WL
7347776, at *3 (Tex. App.—Houston [14th Dist.] Dec. 23, 2014, no pet.) (mem.
op.). Implementation of a family service plan by the Department is considered a
reasonable effort to return a child to its parent. Id.; see also In re A.L.H., 468 S.W.3d
at 744; In re K.G., 350 S.W.3d 338, 354 (Tex. App.—Fort Worth 2011, pet. denied).
In this case, the Department created a service plan for Father and notified him of the
plan. The original service plan required Father to submit to DNA testing, which he
did. The Department then amended the service plan to require Father to complete
parenting classes, maintain stable housing and income, submit to random drug
testing, and participate in a substance abuse assessment.
Father’s first service plan, requiring DNA testing, was admitted into evidence.
The amended service plan was not admitted into evidence and does not appear in
our record. The record reflects, however, that the trial court signed orders making
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the service plan and any amended plan an order of the court and requiring
compliance with those orders. The record further reflects that Father was made
aware of the amended service plan and completed some of the tasks required of the
plan.
A family service plan is designed to reunify a parent with a child who has
been removed by the Department. Liu v. Dep’t of Family & Protective Servs., 273
S.W.3d 785, 795 (Tex. App.—Houston [1st Dist.] 2008, no pet.). A service plan
must, among other things, (1) be specific; (2) state the goal of the plan, which may
be the return of the child to the child’s parents; and (3) state the actions and
responsibilities necessary for the child’s parents to take to achieve the plan goal. See
Tex. Fam. Code Ann. § 263.102. The trial court “shall incorporate the original and
any amended service plan into the orders of the court.” Tex. Fam. Code Ann. §
263.106.
The record reflects a status hearing order signed by the trial court February 1,
2018 in which the court found that Father had reviewed and understood the service
plan and had been advised that unless he was willing and able to provide Ana with
a safe environment, even with the assistance of a service plan, within the reasonable
period of time specified in the plan, his parental and custodial duties and rights might
be subject to restriction or termination. The status hearing order also approved the
visitation plan for Father and made the plan an order of the court. On May 3, 2018,
the trial court found that Father complied with the original service plan requiring
DNA testing.
On October 8, 2018, the caseworker filed a permanency report to the court in
which she noted that Father participated in a drug screening in May 2018 and that
she mailed a new family plan of service to Father, which requested that Father
complete parenting classes, maintain stable housing and income, submit to random
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drug testing, and participate in a substance abuse assessment. On November 8, 2018,
the trial court’s permanency hearing order found that Father had not complied with
the services requested by the new service plan.
Although the Department did not include the amended service plan in the
record before this court, the record reflects that the Department implemented an
amended plan and mailed it to Father. According to the caseworker’s report and the
trial court’s orders, the record reflects that Father knew what was required by the
service plan and was informed of the consequences of a failure to follow the plan.
Father submitted to two requests for random drug testing and the Department
supplied him with contact information for service providers to aid in completion of
other tasks required by the plan. By implementing a family service plan and
notifying Father of the plan and the consequences of failure to comply with the plan,
the Department met its burden on the first element. We conclude a reasonable trier
of fact could have formed a firm belief or conviction that the Department made
reasonable efforts to return the child to Father. See In re A.L.H., 468 S.W.3d at 744.
B. Regularly Visit or Maintain Significant Contact with Child
With regard to Father’s visitation, the second element, Father admits he never
visited Ana but argues that he showed interest in her by submitting to DNA testing.
The record reflects that Father never met Ana, much less visited her after her birth.
Notwithstanding Father’s submission to DNA testing we hold the evidence is both
legally and factually sufficient to show that Father failed to maintain significant
contact with Ana. This court and others have found sufficient evidence of
constructive abandonment with greater levels of contact with the child than Father
had in this case. See In re T.G., No. 14-09-00299-CV, 2010 WL 1379977, at *7 (Tex.
App.—Houston [14th Dist.] Apr. 8, 2010, no pet.) (mem. op.) (finding sufficient
evidence of constructive abandonment where Mother visited “only occasionally”);
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In re R.M., No. 14-02-00221-CV, 2003 WL 253291, at *5 (Tex. App.—Houston
[14th Dist.] Feb. 6, 2003, no pet.) (mem. op.) (finding sufficient evidence of
constructive abandonment where Mother visited child six times while the
termination case was pending); In re H.R., 87 S.W.3d 691, 699 (Tex. App.—San
Antonio 2002, no pet.) (finding sufficient evidence of constructive abandonment
where parent’s visits were intermittent); In re P.R., 994 S.W.2d 411, 416 (Tex.
App.—Fort Worth 1999, pet. dism’d w.o.j.) (finding sufficient evidence of
constructive abandonment where parent had numerous, yet sporadic visits).
C. Inability to Provide a Safe Environment for the Child
With regard to the third element, Father argues the Department “could have
been more proactive in pursuing a home study on the paternal grandfather” and
“should have made reasonable efforts to work with [him] toward reunification.”
The record reflects that Father did not provide evidence of stable housing,
employment, or income. Smith testified that she was willing to travel to Ohio to
conduct a home study on Ana’s paternal grandfather. Smith relied on Father to
provide a date certain when the grandfather’s home would be available. Smith was
unable to conduct the study because Father failed to communicate with her.
Because Father failed to provide Ana with any home, much less a safe, stable
home, the evidence is legally and factually sufficient to support the trial court’s
finding of constructive abandonment. See In re V.D.A., 2014 WL 7347776, at *9
(finding sufficient evidence of constructive abandonment when Father did not
provide proof of income or stable housing); In re T.M., No. 02-09-145-CV, 2009
WL 5184018, at *4–*5 (Tex. App.—Fort Worth Dec. 31, 2009, pet. denied) (mem.
op.) (holding evidence legally and factually sufficient to support inability to provide
safe environment finding when father failed to complete service plan, did not attempt
to find a place for children to live, and did not give foster mother money to care for
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children); M.C. v. Texas Dept. of Family & Protective Services, 300 S.W.3d 305,
310 (Tex. App.—El Paso 2009, pet. denied) (holding sufficient evidence
demonstrated an inability to provide the child with a safe environment when mother
failed to provide basic necessities for child and had no permanent housing or
employment).
As to Father’s factual sufficiency challenge, considering the entire record, we
conclude that any disputed evidence was not so significant as to prevent the trial
court from forming a firm belief or conviction that Father constructively abandoned
Ana. See In re J.O.A., 283 S.W.3d at 345. Thus, the evidence was both legally and
factually sufficient to support the trial court’s finding pursuant to Family Code
section 161.001(b)(1)(N). See In re A.K.L., No. 01-16-00489-CV, 2016 WL
7164065, at *9 (Tex. App.—Houston [1st Dist.] Dec. 8, 2016, pet. denied) (mem.
op.).
Because we conclude the evidence is legally and factually sufficient to support
the trial court’s finding pursuant to Family Code section 161.001(b)(1)(N), we need
not address Father’s second issue challenging the other basis for termination of his
parental rights under section 161.001(b)(1)(O). See In re A.V., 113 S.W.3d at 362
(“Only one predicate finding under section [161.001(b)(1)] is necessary to support a
judgment of termination when there is also a finding that termination is in the child’s
best interest.”). We overrule Father’s issue challenging the trial court’s finding of
constructive abandonment and do not address Father’s issue challenging his failure
to comply with the family service plan.
II. Best Interest of the Child
Father also challenges the legal and factual sufficiency of the evidence to
support the trial court’s finding that termination of his parental rights is in Ana’s best
interest.
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The fact finder may consider the following factors to determine the best
interest of the child: (1) the desires of the child; (2) the present and future physical
and emotional needs of the child; (3) the present and future emotional and physical
danger to the child; (4) the parental abilities of the persons seeking custody; (5) the
programs available to assist those persons seeking custody in promoting the best
interest of the child; (6) the plans for the child by the individuals or agency seeking
custody; (7) the stability of the home or proposed placement; (8) acts or omissions
of the parent that may indicate the existing parent-child relationship is not
appropriate; and (9) any excuse for the parent’s acts or omissions. Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976); see also Tex. Fam. Code Ann. § 263.307(b)
(Supp.) (listing factors to consider in evaluating parents’ willingness and ability to
provide the child with a safe environment); In re E.R.W., 528 S.W.3d at 266.
Courts apply a strong presumption that the best interest of the child is served
by keeping the child with her natural parents and the burden is on the Department to
rebut that presumption. In re D.R.A., 374 S.W.3d at 531. Prompt and permanent
placement in a safe environment is also presumed to be in the child’s best interest.
Tex. Fam. Code Ann. § 263.307(a).
Multiple factors support the trial court’s finding that termination of Father’s
parental rights is in Ana’s best interest.
A. Desires of the Child
Father argues that “the desires of the child presumably would be to remain in
her Father’s life.” Ana was approximately one year old at the time of trial and had
been living with her foster parents for most of her life. The record therefore does not
reflect Ana’s desires. When children are too young to express their desires, the fact
finder may consider whether the children have bonded with their caregiver, are well-
cared for by them, and have spent a minimal amount of time with a parent. In re
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J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Testimony at trial showed that Ana had bonded with the foster parents who
were the only parents she ever knew. Mother fled the hospital shortly after Ana’s
birth and Father never met her. There is no evidence, however, that Ana has bonded
with Father because he has been absent since her removal at birth. See In re L.G.R.,
498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (When
children are too young to express their desires, the fact finder may consider that the
children have bonded with the foster family, are well cared for by the foster family,
and have spent minimal time with a parent). This factor supports the trial court’s
finding that termination of Father’s rights is in Ana’s best interest.
B. Present and Future Physical and Emotional Needs of the Child
Our analysis of the present and future physical and emotional needs of a child
focuses on a child’s innate need for permanence. See In re D.R.A., 374 S.W.3d at
533. The goal of establishing a stable, permanent home for a child is a compelling
government interest. See id.
The record reflects that Father has been completely absent from Ana’s life.
Father did not provide any explanation for his absence. From this past inability to be
present and to meet Ana’s physical and emotional needs, the fact finder may infer
that Father is unable or unwilling to meet Ana’s needs in the future. See In re J.D.,
436 S.W.3d at 118.
Father’s assertions that it is “speculative” whether Ana’s future physical and
emotional needs will be met by her foster parents is contrary to the record. The foster
family has a safe stable home, stable income, and has shown they are willing and
able to care for Ana’s needs in the future. This factor supports the trial court’s best
interest finding.
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C. Acts or Omissions of the Parent that May Indicate the Existing
Parent-Child Relationship is Not Appropriate
Father’s drug use and his absence from Ana’s life also support the trial court’s
best interest determination. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort
Worth 2007, no pet.) (parent’s history of drug use relevant to trial court’s best
interest finding); see also In re S.R., 452 S.W.3d at 366 (the fact finder may infer
from past conduct endangering the child’s well-being that similar conduct will recur
if the child is returned to the parent).
The record shows that Father tested positive for cocaine while this case was
pending. Continued drug use may be considered as a factor in the trial court’s
determination that termination is in the child’s best interest. In re B.Z.S., No. 14-16-
00825-CV, 2017 WL 536671, at *5 (Tex. App.—Houston [14th Dist.] Feb. 9, 2017,
pet. denied) (mem. op.). In addition to drug use Father failed to maintain a safe stable
environment for Ana, failed to obtain and maintain a stable income, and expressed
no interest in meeting his daughter. This factor weighs in favor of the trial court’s
best interest finding.
D. Parental Abilities of Those Seeking Custody, and Stability of the
Home or Proposed Placement
The factors concerning the parental abilities of those seeking custody, and the
stability of the home or proposed placement compare the Department’s plans and
proposed placement of the child with the plans and home of the parent seeking to
avoid termination. See In re D.R.A., 374 S.W.3d at 535. The Child Advocate testified
that the foster family would be able to access services to care for Ana in the event
she needed additional medical care. On the other hand, the record does not contain
any evidence suggesting that Father would be able to provide any care for Ana. This
consideration, combined with Father’s failure to attend the underlying proceedings
and maintain contact with Ana, strongly supports the trial court’s best interest
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determination.
Viewing the evidence in the light most favorable to the judgment for our legal
sufficiency analysis and all the evidence equally for our factual sufficiency analysis,
we conclude that a reasonable fact finder could have formed a firm belief or
conviction that termination of Father’s parental rights was in Ana’s best interest. See
Tex. Fam. Code Ann. § 161.001(b)(2). We overrule Father’s challenge to this
finding.
CONCLUSION
The evidence is legally and factually sufficient to support the trial court’s
predicate termination finding under section 161.001(b)(1)(N). The trial court’s best
interest finding is also supported by legally and factually sufficient evidence. We
overrule Father’s challenges and affirm the trial court’s “Final Decree of
Termination.”
/s/ Meagan Hassan
Justice
Panel consists of Justices Wise, Jewell, and Hassan.
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