Opinion
No. 01-01-00916-CV.
Opinion issued June 5, 2003.
Appeal from the 300th District Court, Brazoria County, Texas, Trial Court Cause No. 11608*RH00.
Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
MEMORANDUM OPINION
The Brazoria County Children's Protective Services (CPS), filed suit to terminate the parent-child relationship between C.A. and G.A., minor children, and their mother, Dawn Allen, as well as the parent-child relationship between G.A. and appellant Ronnie James Doucet, and C.A. and appellant Earl Callahan. The jury returned a verdict terminating the parent-child relationships of Allen, Doucet, and Callahan, and named CPS as the sole managing conservator over the children. The trial court entered a decree based on the jury's verdict.
In two issues, Doucet, father of G.A., argues that the evidence is legally and factually insufficient to support the jury's verdict, and he was denied the effective assistance of counsel.
In two issues, Callahan, father of C.A., argues that the evidence is factually insufficient to support the termination grounds found by the jury, and the evidence is factually insufficient to support a finding that the termination was in the best interest of the child.
We affirm.
Facts
After meeting Allen, Doucet moved into the home of Allen and Allen's mother, Mrs. Parker, for a period of about three to four months. At the time, Doucet was 20 years old and Allen was 16 years old. While living at Mrs. Parker's house, Allen became pregnant with G.A. Before G.A. was born, Doucet, who was on probation for the offense of sexual assault, was sent back to prison, and was subsequently convicted of aggravated sexual assault — engaging in organized criminal activity. Doucet was still in prison at the time of the civil trial.
Dr. Milton Williams, who examined Doucet before trial, testified that Doucet has a history of suicide attempts and recurrent depression, and has a propensity for violence and an anti-social personality disorder. Allen testified that Doucet was violent towards her and that, on one occasion, Doucet grabbed her by the throat and threw her on the bed. Allen also testified that, in one encounter, Doucet grabbed her sister, Amanda, by the arms and shook her hard. Doucet admitted to using marihuana up until the time of his imprisonment.
Callahan moved in with Allen and Mrs. Parker when Allen was 16 or 17 years old. At the time, Allen was pregnant with G.A., and G.A. was born during Callahan's stay in the house. Callahan and Allen began having sexual relations about two weeks after Callahan moved into the house. According to Mrs. Parker, Callahan was forced out of the house for having sex with Allen and for doing drugs in the house. Mrs. Parker also testified that she observed Callahan pushing Allen during his stay in her home.
After being forced to leave, both Callahan and Allen left Parker's house and lived at various residences over the next several months. Callahan and Allen were at Callahan's sister's residence in Colorado when Allen discovered that she was pregnant again. Allen left a month later and informed Callahan by telephone, from Texas, that she was pregnant with C.A. Callahan moved from Colorado back to Texas to live with Allen. Allen testified that Callahan was violent towards her, and that, on one occasion, Callahan started to choke her. When Allen was four months' pregnant, Callahan was incarcerated for the felony offense of injury to a child. Callahan testified that he used marihuana up until the point that he was incarcerated.
The offense was for Callahan's sexual relationship with a 14 to 15 year-old girl.
Callahan was released from prison on December 11, 2001. He lived with his grandmother after his release and began having supervised visitation with C.A. Callahan eventually moved in with Michelle, a girlfriend, and lived with her up until trial. Callahan had not provided any financial support for C.A. at the time of trial. Previous to Callahan's relationship with Allen and his incarceration for injury to a child, Callahan was convicted for unauthorized use of a motor vehicle.
CPS initiated the termination proceedings after a former boyfriend of Allen's dropped off G.A. and C.A. at the Oyster Creek Police Department and informed the police that Allen had left the children with him and that she had not returned. When the children were turned over to the police, they were both dirty, their diapers were saturated, and C.A. had a severe diaper rash that was causing her skin to peel.
Termination of Doucet's Parental Rights
The appeal of Dawn Allen, the biological mother of C.A. and G.A., was dismissed by this Court for want of prosecution on January 16, 2003.
Legal and Factual Sufficiency
In his first issue, Doucet argues that the evidence was legally and factually insufficient to support the jury's verdict because the termination was based upon conduct occurring prior to his knowledge of his paternity of the child.
Doucet's parental rights were terminated because of jury findings under section 161.001(1)(e) and (h) of the Texas Family Code. They provide that the parent-child relationship may be terminated if the parent has:
(e) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; . . .
(h) voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth.
Tex. Fam. Code Ann. § 161.001(e), (h) (Vernon 2002).
The termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). The clear and convincing standard needed to support termination of parental rights is the 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 proved. In re C.H., 89 S.W.3d at 25.
Legal Sufficiency
When, as here, a party without the burden of proof challenges the legal sufficiency of the evidence, we will sustain the challenge only if, considering the evidence and inferences in the light most favorable to the finding, there is not more than a scintilla of evidence supporting it. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); In re B.M.R., 84 S.W.3d 814, 817 (Tex.App.-Houston [1st Dist.] 2002, no pet.). "More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, `rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Burroughs Wellcome, 907 S.W.2d at 499 (citations omitted).
When determining whether a parent has engaged in conduct that endangers the well-being of a child, parental conduct before and after the birth of the child should be considered. In re M.J.M.L., 31 S.W.3d 347, 351 (Tex.App.-San Antonio 2000, pet. denied); Avery v. State, 963 S.W.2d 550, 553 (Tex.App.-Houston [1st Dist.] 1997, no pet.).
Doucet argues that the evidence is legally insufficient to support the verdict because his parental rights were terminated based upon conduct that occurred prior to the establishment of the parent-child relationship. This Court has previously held that the parental conduct to be examined in considering termination of parental rights includes what the parents did before and after the birth of the child. Avery, 963 S.W.2d at 553. Under subsection (e), knowledge of paternity is not a prerequisite to a showing of parental conduct that endangers a child. In re M.J.M.L., 31 S.W.3d at 351. Accordingly, in making our legal-sufficiency determination under subsection (e), we will include within our review evidence of Doucet's conduct that occurred before Doucet alleges that he knew that he was G.A.'s father.
At trial, the evidence showed that Doucet was convicted of sexual assault and aggravated sexual assault — engaging in organized criminal activity. Allen testified that Doucet was violent towards both her and her sister, Amanda. Doucet admitted that he used marihuana up until the time that he was imprisoned. Dr. Williams testified that Doucet had a history of suicide attempts, has an anti-social personality disorder, and has a propensity for violence.
We hold that this testimony amounts to more than a scintilla of evidence to support a finding under subsection (e) that Doucet engaged in a course of conduct that endangered the physical or emotional well-being of G.A. It does not matter that G.A. might not have suffered actual injury from Doucet's conduct. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Evidence of Doucet's criminal history, violent actions, drug use, imprisonment, mental condition, and suicide attempts are enough to support the jury's finding under subsection (e). See In re C.H., 89 S.W.3d at 28 (parent's criminal history involving drugs and assaults was evidence of parent's inability to raise a child); Texas Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (imprisonment may be considered as a factor by the jury in a determination to terminate parental rights under subsection (e)); In re M.J.M.L, 31 S.W.3d at 352 (drug use is considered in determining endangerment to the physical and emotional well-being of a child); Director of Dallas County Child Protective Serv. Unit of Tex. Dept. of Human Serv. v. Bowling, 833 S.W.2d 730, 733 (Tex.App.-Dallas 1992, no writ) (violent or negligent conduct directed at children or a parent is a factor in considering the termination of parental rights under subsection (e)); In the Interest of C.D., 664 S.W.2d 851, 853 (Tex.App.-Fort Worth 1984, no writ) (mental conditions and suicide attempts of parent were factors in considering whether parent engaged in conduct that endangered the emotional well-being of child). Accordingly, we hold that the evidence is legally sufficient to support the jury's verdict.
In holding that the evidence is legally sufficient to support termination under subsection (e), we need not discuss Doucet's legal sufficiency argument as to subsection (h) since one ground is sufficient to support termination. Avery, 963 S.W.2d at 553.
Factual Sufficiency
In a factual-sufficiency review, we determine whether the evidence is such that a finder of fact could reasonably form a firm belief or conviction about the truth of the allegations. In re C.H., 89 S.W.3d at 25. We will consider all of the evidence in the record, including that which supports or contradicts the trial court's findings. Id. at 29.
Doucet argues that the evidence was factually insufficient to support the verdict because termination under subsection (e) cannot be based solely on the grounds of imprisonment. Additionally, Doucet argues that any other evidence to support the verdict under subsection (e) is also factually insufficient.
While termination under (e) may not be based on imprisonment alone, imprisonment can be considered as a factor in determining whether the parent has engaged in a course of conduct that endangers the physical or emotional well-being of the child. Boyd, 727 S.W.2d at 533. At trial, the jury was able to consider testimony of Doucet's imprisonment, criminal history, drug use, violent acts towards Allen and Amanda, suicide attempts, and mental condition. After reviewing all of the evidence, both favorable and unfavorable to Doucet, we hold that the jury could have reasonably formed a firm belief that Doucet had engaged in conduct that was endangering to G.A. In re C.H., 89 S.W.3d at 25. Accordingly, we hold that the evidence is factually sufficient to support the jury's verdict.
In holding that the evidence is factually sufficient to support termination under subsection (e), we need not discuss Doucet's factual sufficiency argument as to subsection (h). Avery, 963 S.W.2d at 553.
We overrule Doucet's first issue.
Effective Assistance of Counsel
In his second issue, Doucet argues that he was denied the effective assistance of counsel because of trial counsel's failure to object to the testimony of Dr. Williams and failure to preserve charge error.
Some Texas Courts of Appeals have held that parents who have been appointed counsel in parental-termination cases are not constitutionally entitled to effective assistance of counsel. In re B.B., 971 S.W.2d 160, 172 (Tex.App.-Beaumont 1998, pet. denied); Arteaga v. Texas Dep't of Protective and Regulatory Servs., 924 S.W.2d 756, 762 (Tex.App.-Austin 1996, writ denied); In re J.F., 888 S.W.2d 140, 143 (Tex.App.-Tyler 1994, no writ); Posner v. Dallas County Child Welfare Unit, 784 S.W.2d 585, 588 (Tex.App.-Eastland 1990, writ denied). This Court, however, requires that, in parental termination cases, where there is mandatory appointment of counsel, the appointed counsel must be held accountable if they are ineffective. In re J.M.S., 43 S.W.3d 60, 63 (Tex.App.-Houston [1st Dist.] 2001, no pet.).
The right-to-counsel standard in criminal cases is the same standard that is to be used in parental-termination cases. Id. The United States Supreme Court, in Strickland v. Washington, has held that the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." 466 U.S. 668, 686, 104 S.Ct. 2052, 2064 (1984). Strickland established two factors for determining the proper standard for attorney performance. First, the performance must be deficient to the level that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment, and, second, the defendant must show the deficient performance prejudiced the defense. Id. 466 U.S. at 687, 104 S.Ct. at 2064. The counsel's errors must have been so serious as to deprive the defendant of a fair trial, and there is a reasonable probability that, but for the counsel's unprofessional errors, the result would have been different. Id. 466 U.S. at 694, 104 S.Ct. at 2068. There is a presumption that the counsel's conduct fell within the wide range of reasonable professional assistance, and the defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Id. 466 U.S. at 689, 104 S.Ct. at 2065.
Failure to Object to Dr. Williams' Testimony
Prior to trial, Doucet's counsel requested the appointment of a psychiatrist to evaluate, among other things, Doucet's ability to consult with counsel. Following a hearing, the trial court denied the motion, but later, after CPS argued that Doucet's mental condition was relevant to the case, the trial court ordered a mental examination of Doucet by Dr. Williams. At trial, Dr. Williams was the first witness called and Doucet's counsel did not object to his testimony. Doucet now argues that his trial court counsel should have objected and asserted that the mental health evaluation by Dr. Williams was privileged.
Generally, the diagnosis of a patient by a physician and the communications between a patient and physician are privileged. Tex.R.Evid. 509, 510. However, there is no privilege "as to a communication or record relevant to an issue of the physical, mental, or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's claim or defense." Tex.R.Evid. 510(d)(5); see, e.g., Gustafson v. Chambers, 871 S.W.2d 938, 943-45 (Tex.App.-Houston [1st Dist.] 1994, no writ) (recognizing that rule 510(d)(5) allowed plaintiff, in malpractice action, to use physician's mental health records as evidence that physician was impaired by intoxicant abuse during time he treated plaintiff).
Here, CPS was attempting to use Doucet's previous suicide attempts, recurrent depression, and anti-social personality disorder as evidence relevant to whether Doucet engaged in endangering conduct under subsection (e). Accordingly, because CPS was relying upon Doucet's mental and emotional condition as grounds for termination under subsection (e), Dr. Williams' testimony as to Doucet's mental and emotional condition was not privileged.
Doucet also argues that his trial counsel should have objected to Dr. Williams' testimony on the ground that the trial court failed to comply with Texas Rule of Procedure 204.1(d), which requires that an order for a mental examination must be in writing, and specify the time, place, manner, conditions, and scope of the examination. The order of the trial court that compelled a mental examination in this case was not in writing, but Doucet does not explain how he was harmed by the trial court's failure to comply with the writing requirement of rule 204.1(d). Doucet does not cite any authority suggesting that Dr. Williams' testimony would be inadmissible as a result of a rule 204.1(d) violation, and, accordingly, we are unable to determine that Doucet's counsel erred by not objecting to the testimony on those grounds.
Additionally, Doucet argues that his trial counsel should have objected to Dr. Williams' testimony based upon CPS's failure to disclose Dr. Williams as a person with knowledge of relevant facts, identify him as an expert, or provide any of the information required by rule 194.2(f) regarding experts. Tex.R.Civ.P. 194.2(f).
Generally, a party who fails to make, amend or supplement a discovery response in a timely manner is not permitted to introduce the evidence or information that was not timely disclosed. Tex.R.Civ.P. 193.6(a). However, the court may allow the introduction of the evidence or information if the court finds that there was good cause for the failure to timely make, amend, or supplement, or the failure would not unfairly surprise or unfairly prejudice the other parties. Tex.R.Civ.P. 193.6(a).
In this case, a mental exam was requested by Doucet's trial counsel six days before voir dire was to start. Doucet's trial counsel informed the trial court that Doucet had been placed with a psychiatric unit within the Texas Department of Corrections, and argued that a mental exam of Doucet was needed because of Doucet's alleged inability to consult with him about the case. On direct examination at the hearing, Doucet testified that he was in the psychiatric unit for "suicide, homicide, depression, and hearing voices." Doucet also testified that he was on several types of medication, and that he conferred with the voices in his head before making decisions. The trial court denied Doucet's motion for a mental examination, but the day before voir dire was to start, CPS decided to use Doucet's mental condition as part of its case, and, at a pre-trial hearing, the trial court ordered that Dr. Williams perform a mental examination of Doucet.
As was discussed, Doucet's trial counsel did not object to Dr. Williams' testimony at trial. We are not persuaded, however, that the counsel's failure to object to the testimony on the basis of rule 193.6 amounted to ineffective assistance. The trial court, under 193.6(a)(1) and (2) could have allowed the testimony if it found that there was good cause for the failure to supplement, or the failure to supplement would not unfairly surprise or unfairly prejudice the parties. In this case, Doucet testified at a pre-trial hearing on a motion for a mental examination that he was in a psychiatric unit for "suicide, homicide, depression, and hearing voices." After this revelation at the hearing, Dr. Williams' testimony regarding Doucet's history of depression and suicide should not have come as a surprise to any of the parties. In any event, given the other testimony at trial establishing Doucet's endangering conduct, we hold that the trial counsel's failure to object to Dr. Williams' testimony was not an unprofessional error that, with reasonable probability, changed the outcome of the case. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
Failure to Object to the Charge
Doucet also argues that he was denied the effective assistance of counsel because of his trial counsel's failure to object to the charge on the basis that (1) the jury was permitted to consider Doucet's conduct with regard to G.A. and C.A., when Doucet was only the father of G.A., and (2) the termination question based on subsection (e) was submitted as a single question and was not broken up until multiple questions.
The termination question based on subsection (e) was as follows:
Do you find by clear and convincing evidence that Ronnie James Doucet engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child?
Doucet argues that, because the question refers only to "the child," the jury could have considered Doucet's conduct in relation to G.A. or C.A., rather than just Doucet's child, G.A.
Doucet's argument fails because, while the above question does not identify G.A. as "the child," the jury charge does identify G.A. as "the child," in subpart two. In subpart one, there are two questions. The first question, which we have already identified above, is based upon subsection (e), and the second question is based on subsection (h). The jury charge provided that if either of the two questions in subpart one were answered with a "yes," then the jury was to proceed with the question in subpart two. The question in subpart two is as follows:
The jury charge questions, with regard to Doucet, were as follows:
Special Question Number Two:
Subpart 1:
For the parent-child relationship to be terminated in this case, it must be proved by clear and convincing evidence that Ronnie James Doucet engaged in one of the following specified acts or conduct:
a. Do you find by clear and convincing evidence that Ronnie James Doucet engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child?
Answer "Yes" or "No":
b. Do you find by clear and convincing evidence that Ronnie James Doucet voluntarily and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since birth?
Answer "Yes" or "No":
If you answered yes to letter "a" or "b", then answer the following Subpart. If you answered "no to both "a" and "b", then skip the following subpart.
Subpart 2
For the parent-child relationship to be terminated in this case, it must also be proved by clear and convincing evidence that termination of the parent-child relationship would be in the best interest of the child.
Do you find by clear and convincing evidence that termination of the parent-child relationship between Ronnie James Doucet and [G.A.] is in the best interest of the child?
Answer "Yes" or "No"
[G.A.]
Answer:
Do you find by clear and convincing evidence that termination of the parent-child relationship between Ronnie James Doucet and [G.A.] is in the best interest of the child?
The question in subpart two, then, clearly identifies G.A. as "the child" to be considered in the determination of the termination of Doucet's parental rights. Additionally, the record indicates that the charge was read to the jury before the jury retired, so the identification of "the child" as G.A., in subpart two, was already given to the jury before they contemplated the two questions in subpart one. Further, the testimony at trial made it clear that G.A. was the child of Doucet, and C.A. was the child of Callahan. It is unlikely that a jury charge identifying G.A. as "the child" within the termination question based on subsection (e) would have caused a different result in the case. See Strickland, 466 U.S. U.S. at 694, 104 S.Ct. at 2068. Accordingly, we hold that Doucet was not denied effective assistance of counsel because of the trial counsel's failure to object to the lack of identification of "the child" in the termination question based on subsection (e).
Doucet also contends that the termination question based on subsection (e) is objectionable because it was submitted as a single question. Doucet argues that, because there are two clauses in subsection (e), with one clause regarding endangering conduct, and the other clause regarding the placement of the child with persons who engage in endangering conduct, there should have been a separate question for each clause.
The rules of procedure mandate that broad-form questions be submitted to the jury whenever feasible. Tex.R.Civ.P. 277. When there is a single broad-form question that is supported by multiple theories of liability, and a party believes that one of those theories is invalid, it may be to the party's advantage to request that the theories be addressed in separate questions so that a reviewing court can determine which theory or theories the jury relied on in making a finding on the cause of action. See Muldrow, Louis S. Underwood, William D., Application of the Harmless Error Standard to Errors in the Charge, 48 Baylor L. Rev. 815, 838-39 (1996). Here, Doucet does not explain how he was harmed by the submission of a single question. The termination question tracks the language used in the statute under subsection (e), and Doucet does not argue that one of the clauses in subsection (e) is an invalid or unconstitutional ground for termination of parental rights, such that a single question would not be feasible. Accordingly, we hold that the trial counsel of Doucet did not provide ineffective assistance of counsel for failing to object to the submission of a single broad-form question based on subsection (e).
In holding that Doucet was not denied the effective assistance of counsel with regard to charge error in the termination question based on subsection (e), we need not address the alleged charge error in the question based upon subsection (h). See Avery, 963 S.W.2d at 553.
Termination of Callahan's Parental Rights
Factual Sufficiency of Termination Findings under section 161.001(1)(e)
In his first issue, Callahan argues that the evidence is factually insufficient to support the jury's termination finding under section 161.001(1)(e). Under subsection (e), as has been discussed, parental rights may be terminated if there is a finding, by clear and convincing evidence, that the parent engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child. Tex. Fam. Code Ann. § 161.001(e).
In our factual-sufficiency review, we will determine whether the evidence is such that a finder of fact could reasonably form a firm belief or conviction about the truth of the allegations. In re C.H., 89 S.W.3d at 25. We will consider all of the evidence in the record in making our determination. Robinson v. Texas Dep't of Protective and Regulatory Servs., 89 S.W.3d 679, 687 (Tex.App.-Houston [1st Dist.] 2002, no pet.).
Callahan argues that the evidence to support the termination finding under subsection (e) is insufficient because, since the birth of C.A., he has not engaged in endangering conduct, and since the time he has been released from prison, his relationship with C.A. has been good.
At trial, Callahan testified that, after being released from prison, he has been able to have supervised visits with his daughter, and he has missed only a few of his scheduled visits. Callahan also testified that he is no longer taking or using drugs. Mrs. Rieger, the caseworker assigned to the case at the time of trial, testified that, during Callahan's supervised visits, he has shown concern for C.A., and has acted appropriately and interacted well with C.A. during the visitations. Shawna Gibson, Callahan's sister, testified that she did not have concerns about C.A. being given over to Callahan.
Even though some of the this testimony could have been viewed by the jury as favorable to Callahan, the jury also heard evidence of Callahan's conduct that was not favorable to him. Allen's mother, Parker, testified that she observed Callahan pushing Allen while they were living in her home, and Callahan admitted to attempting to choke Allen on one occasion. Callahan also admitted to using marihuana up until the point that he was incarcerated, and that, during his relationship with Allen, while Allen was pregnant, he had sex with a girl who was 14 or 15 years old, and was subsequently convicted of the offense of injury to a child. The jury also heard evidence that Callahan had been convicted of the offense of unauthorized use of a motor vehicle.
The jury, after hearing evidence both favorable and unfavorable to Callahan, found that Callahan engaged in conduct, or knowingly placed C.A. with persons who engaged in conduct, that endangered the physical or emotional well-being of C.A. As we have already discussed in Doucet's legal-sufficiency issue, findings of criminal history, imprisonment, drug use, and family violence can all be considered as factors supporting the termination of parental rights. See, e.g., In re C.H., 89 S.W.3d at 28 (parent's criminal history involving drugs and assaults was evidence of parent's inability to raise a child); Boyd, 727 S.W.2d at 533 (imprisonment may be considered as a factor by the jury in a determination to terminate parental rights under subsection (e)); In re M.J.M.L, 31 S.W.3d at 351 (drug use is considered in determining endangerment to the physical and emotional well-being of a child); Bowling, 833 S.W.2d at 733 (violent or negligent conduct directed at children or a parent is considered in termination proceedings under subsection (e)).
After reviewing all of the evidence, both favorable and unfavorable to Callahan, we hold that the jury could have reasonably formed a firm belief that Callahan had engaged in conduct that was endangering to the physical or emotional well-being of C.A. In re C.H., 89 S.W.3d at 25. Accordingly, we hold the evidence is not factually insufficient to support the jury's termination findings under subsection (e).
We overrule Callahan's first issue.
Best Interest of The Child
In issue two, Callahan challenges the factual sufficiency of the jury's finding that the termination of Callahan's parental rights was in the best interest of C.A. Tex. Fam. Code Ann. § 161.001(2) (Vernon 2002).
Some of the principal balancing factors to be used in determining the best interest of a child 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 programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by those seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the act or omission of a parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); Robinson, 89 S.W.3d at 687-88.
These factors are not exhaustive, and absence of evidence for some of these factors does not preclude a fact-finder from forming a reasonably strong belief that termination is in the best interest of the child. In re C.H., 89 S.W.3d at 27.
Callahan contends that, since his imprisonment, he has had positive contacts with C.A., and that he has not yet been given the opportunity to further develop his relationship with C.A. In support of Callahan's contention that he has had positive contacts with C.A., he cites the testimony of several witnesses at trial who saw Callahan interact with C.A. during supervised visits. Ms. Martin, one of the caseworkers involved in the case, testified that, during supervised visits that she witnessed, Callahan had interacted well with C.A. and nothing inappropriate had happened. Ms. Rieger, another caseworker involved in the case, also testified that she witnessed Callahan visit with C.A. and that Callahan had interacted well with C.A. during the visit. Callahan's sister, Shawna Gibson, testified that she would not have any concerns about C.A. being turned over to him. Callahan testified that he has not used any drugs since his release from prison, and that he has secured adequate housing with a girlfriend.
The jury also, however, heard evidence suggesting that C.A.'s interests would best be suited by the termination of Callahan's parental rights. With regard to the Holley factors, C.A., a toddler at the time of trial, did not express her wishes, but evidence of Callahan's past history of criminal offenses, imprisonment, marihuana use, and violent acts reflect poorly on Callahan's parental abilities, and call into question his ability to provide for the present and future physical and emotional needs of C.A. See Holley, 544 S.W.2d at 371-72. The same evidence also provided sufficient proof of Callahan's inability to provide a stable home environment for C.A. With regard to the home that CPS proposed to place the children in, there was testimony at trial that the home had undergone careful scrutiny from CPS, and was considered an appropriate, safe, and stable environment for C.A. From this evidence, the jury could have reasonably formed a firm belief that the termination of Callahan's parental rights was in C.A.'s best interest. In re C.H., 89 S.W.3d at 25. Accordingly, we hold that there was factually sufficient evidence that the termination of Callahan's parental rights was in the best interest of C.A.
We overrule Callahan's second issue.
Conclusion
We affirm the trial court's decree.