Opinion by: Karen Angelini, Justice

MEMORANDUM OPINION

From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2016PA02851
Honorable H. Paul Canales, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED

Julio C. appeals the trial court's termination of his parental rights to his one-year-old son, J.C. His parental rights were terminated pursuant to subsections (N) and (O) of section 161.001(b)(1) of the Texas Family Code. On appeal, he argues that the evidence is legally and factually insufficient to support the trial court's finding under subsection (N) and that the evidence is legally insufficient to support the trial court's finding under subsection (O). We affirm.

BACKGROUND

At the bench trial, two witnesses testified: Isabel Castro, a caseworker with the Department of Family and Protective Services; and Julio C.

Castro testified that J.C. came into the Department's care at the time of his birth in December 2016 when he tested positive for cocaine, methamphetamines, methadone, and opiates. J.C. suffered from tremors throughout his entire body and had trouble breathing. Because the alleged father, Julio C., was incarcerated in federal prison, J.C. was placed with his paternal grandmother, who was in her seventies. However, J.C. stayed with his paternal grandmother for only a month because she was not physically able to care for him due to injury. Castro testified no other relatives were able or qualified to take care of J.C. Castro contacted Julio C.'s sister, but his sister stated she was unable to care for J.C. Julio C.'s sister pointed to the health of the paternal grandmother, explaining that she needed to take care of her own mother. Julio C.'s sister also has "a common law husband" who "has a criminal history, so the child would not be able to be placed there with the common law husband living there." Castro also contacted a male relative, David, who was married and who was a qualified candidate for placement. However, David and his wife were only willing to be a placement for J.C. if they received "a monthly stipend" and "healthcare benefits after the Department is out of the picture." Castro explained J.C. would not receive "Medicaid after [the Department is] out of the picture because after the child is adopted, he is under the age of two years old, so he does not qualify for any benefits from the Department." Thus, David and his wife declined to be considered a placement for J.C.

Castro testified that Julio C. had a long criminal history, including a 1982 burglary charge; a 1982 charge for unauthorized use of a vehicle; charges in 1983, 1985, and 1989 for burglary of a habitation; a 1985 charge for possession of marijuana; 1985 and 1989 charges for delivery of heroin; a 1991 theft charge; a 1992 homicide charge; a 1992 aggravated kidnapping charge; a 1998 charge for manufacturing and delivery of a controlled substance; a 1998 charge for evading arrest; and a 2010 charge for unlawfully carrying a firearm by a felon. According to Castro, Julio C. was currently incarcerated in a federal prison.

Castro visited Julio C. at two different federal facilities. Castro testified Julio C. was provided with a service plan, but had not completed any of the services. Castro testified Julio C. had told her he completed a program called "Step Down," which is a program "to help offenders not re-offend when they are released." Castro testified that it was in J.C.'s best interest for Julio C.'s rights to be terminated because Julio C. had not demonstrated an ability to provide his child with his basic needs. Castro pointed to Julio C.'s repeated pattern of engaging in criminal activities. She testified due to his criminal conduct, Julio C. could not provide a stable home for J.C.

Castro testified J.C. was currently placed in a foster home. The foster parents had been caring for J.C. for a year. J.C. was thriving under their care and was now "developmentally on target." According to Castro, the foster parents wished to adopt J.C.

Julio C. testified that he was incarcerated when J.C. was born. According to Julio C., he had doubts that J.C. was his biological child, but DNA results confirmed he was J.C.'s father. Julio C. testified he was incarcerated because of a parole violation. He claimed to have never used illegal drugs before he met J.C.'s mother in 2016. He admitted to using heroin in 2016. Julio C. did not know when he would be released but believed it would "probably" be "within six months or less." When asked why it would be in J.C.'s best interest for him to maintain his parental rights, Julio C. replied,

For the simple fact that being my son, I took it to heart that after he was born with multiple drug addictions, I wasn't there, you know, to assist him with the situation. And other than that, I've been committed since then, since I found out he's my son, and even before that I've been rehabilitating myself.

With regard to services, Julio C. testified that while incarcerated, he has been participating in the "Step Down" program:

To me, the program, it basically helps with like, for example, me, I've been incarcerated several times and that kind of works with the criminal mind, you know, and having a new mindset going back to society and as a parent, you know, knowing how to care for your son or daughter, etc.

Julio C. was asked about his other children. Julio C. stated he had three adult children. He was then asked if he had raised any of those children. Julio C. replied, "No, sir. I was incarcerated at the time." Julio was then asked whether he would agree that due to his incarceration, he had "basically abandoned the child" because he could not support him or provide for him." Julio replied that he agreed.

At the end of the hearing, the trial court terminated both Julio C.'s and the mother's parental rights to J.C. Julio C. appealed.

DISCUSSION

Parental rights may be terminated only upon proof of clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(b)(1) of the Texas Family Code, and (2) termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017). Julio C.'s parental rights were terminated pursuant to subsections (N) and (O) of section 161.001(b)(1). Subsection (N) allows a parent's rights to be terminated if the parent has

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.

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 the abuse and neglect of the child.

Along with a best interest finding, a finding of only one ground alleged under section 161.001(b)(1) is sufficient to support a judgment of termination. In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). Julio C. does not challenge the trial court's best interest finding. Instead, he argues that the evidence is legally and factually insufficient to support termination under subsection (N) and that the evidence is legally insufficient to support termination under subsection (O). We review the legal and factual sufficiency of the evidence to support these findings under the standards enunciated in In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).

With regard to subsection (N), Julio C. does not dispute that J.C. was in the temporary managing conservatorship of the Department for six months or more. Nor does he challenge the evidence relating to the Department's proof that he has not regularly visited or maintained significant contact with J.C. or that he has demonstrated an inability to provide J.C. with a safe environment. Rather, Julio C. argues the evidence is legally and factually insufficient to establish the Department made reasonable efforts to return J.C. to him. Thus, we will only consider whether the evidence is legally and factually sufficient to support the trial court's finding that the Department made reasonable efforts to return J.C. to Julio C.

"A family service plan is designed to reunify a parent with a child who has been removed by the Department." In re A.Q.W., 395 S.W.3d 285, 288 (Tex. App.—San Antonio 2013, no pet.). "Implementation of a family service plan by the Department is considered a reasonable effort to return a child" to his parent "if the parent has been given a reasonable opportunity to comply with the terms of the plan." Id. at 289. Julio C. argues that because the DNA test results were not made available until ninety days before the termination hearing, he was not given a reasonable opportunity to comply with the terms of his family service plan.

For support, Julio C. cites this court's opinion in In re A.Q.W., 395 S.W.3d 285, 290 (Tex. App.—San Antonio 2013, no pet.). In In re A.Q.W., we examined whether the Department had made a reasonable effort to return the child to his parent and concluded it had not based on the circumstances presented in that case. Id. On June 21, 2011, the child was born with opiates in his system, and the Department was granted ex parte temporary managing conservatorship of the child. Id. at 288. The appellant, who was incarcerated at the time of the child's birth, was named in the Department's petition as an alleged father because he was not named on the birth certificate and the mother was married to another man. Id. On October 11, 2011, the trial court ordered DNA testing to determine parentage. Id. Although a family service plan for the appellant was filed on August 12, 2011, it was not given to him until December 2, 2011. Id. On December 6, 2011, DNA test results revealed appellant to be the father of the child. Id. The termination hearing commenced on January 6, 2012. Id. The appellant was still incarcerated at the time of the trial. Id. In looking at this record, we held the evidence was legally insufficient to support a finding that the Department had made a reasonable effort to return the child to his father, explaining the appellant had only thirty-four days before the hearing to complete services, and there was "no evidence that appellant was provided with a reasonable opportunity to enroll in, much less complete, any of the requirements that he could have complied with while incarcerated." Id. at 290.

In a subsequent case, In re A.T.L., No. 04-15-00379-CV, 2015 WL 6507807, at *4 (Tex. App.—San Antonio 2015, pet. denied), the appellant relied on In re A.Q.W., arguing that because he was not confirmed as the father until the termination hearing, the Department had not made reasonable efforts to return the child to him. The appellant in A.T.L. signed his service plan on September 24, 2014, was incarcerated three weeks later, and remained incarcerated at the time of the termination hearing in May 2015. A.T.L., 2015 WL 6507807, at *5. We distinguished the facts presented in A.T.L. from those presented in A.Q.W., explaining that although appellant was adjudged the child's father at the termination hearing, he knew the mother was pregnant with his child and was aware of the child's birth. In re A.T.L., 2015 WL 6507807, at *5. We noted "nothing in the record indicate[d] appellant took any action to contact or gain access to his child in the more than eight months between her birth and his incarceration, or during the period of his incarceration." Id. And, there was evidence appellant had told the caseworker engaging in services "was not imperative to him and the plan was not important to him at that point in time because he wanted to get himself situated first." Id. Thus, we concluded the trial court's finding was supported by sufficient evidence. Id.

Similarly, in the present case, although the DNA test results were not made available until September 2017, less than ninety days before the termination hearing, the evidence shows Julio C. knew about J.C.'s birth from the beginning. Indeed, J.C. was first placed with Julio C.'s mother. Even though Julio C. claimed to have doubts of J.C.'s parentage, he acted as though he was J.C.'s father, testifying three or four months after J.C.'s birth, he sent J.C. a bracelet. Additionally, unlike in In re A.Q.W. where the mother had been married to another man, there was no other alleged father named in this case. And, unlike in In re A.Q.W. where the family service plan was given to the appellant a month before the termination hearing, the record reflects in this case that Julio C. signed a family service plan on January 21, 2017, almost a year before the final termination hearing.

Additionally, this Court has recognized that "reasonable efforts to return a child to a parent 'under section 161.001(1)(N)(i) does not necessarily mean the child must be physically delivered to the incarcerated parent.'" In re A.T.L., 2015 WL 6507807, at *4 (quoting In re D.S.A., 113 S.W.3d 567, 573 (Tex. App.—Amarillo 2003, no pet.)). The Department can also make a reasonable effort by attempting to place the child with family members. Id. at *5; see also In re K.J.T.M., No. 06-09-00104-CV, 2010 WL 1664027, at *3-4 (Tex. App.—Texarkana 2010, no pet.) (holding the Department's efforts, "although futile," to place the child with relatives supported the finding of reasonable efforts to return the child to incarcerated parents). In In re A.T.L., we explained the Department had attempted to place the child with family members but had been unable to do so "because either the family member declined a home study or had a criminal history." In re A.T.L., 2015 WL 6507807, at *5. We held this evidence supported the trial court's finding that reasonable efforts had been made by the Department. Id.

Here, there is ample evidence in the record that the Department made reasonable efforts to place J.C. with Julio C.'s family members. See In re A.T.L., 2015 WL 6507807, at *5; see also In re R.G., No. 04-14-00689-CV, 2015 WL 1137679, at * (Tex. App.—San Antonio 2015, pet. denied) (holding that even though appellant mother was incarcerated, "the Department presented sufficient evidence to permit the trial court to find it made reasonable efforts to return [the child] to [appellant mother] through a surrogate" but "no one was available to take custody of [the child] on [appellant mother's] behalf during her incarceration"). After J.C. was removed from his mother's care at birth, the Department placed J.C. with Julio C.'s mother. However, she became physically unable to care for J.C. The Department then contacted Julio C.'s sister, who declined to care for J.C., and a male relative, David, who also declined to be considered a placement.

In looking at all the evidence in the light most favorable to the trial court's finding, we hold that the trial court could have reasonably formed a firm belief or conviction that the Department made reasonable efforts to return J.C. to Julio C. See In re J.O.A., 283 S.W.3d at 344. Further, in considering the entire record, including any disputed evidence, we conclude the evidence is factually sufficient to support the trial court's finding that the Department made reasonable efforts to return J.C. to Julio C. See id.

We therefore affirm the trial court's order terminating Julio C.'s parental rights.

Karen Angelini, Justice