Court of Appeals of Texas, Second District, Fort Worth
THE 322ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
MEIER, GABRIEL, and SUDDERTH, JJ.
MEMORANDUM OPINION 
T.W.S. (Father) appeals the trial court's final order
terminating his parental rights to his son, T.S. We will
affirm as modified.
mother is A.B. (Mother). In June 2015, CPS received a report
of physical neglect by Mother of two of her other children.
At the time, Mother was homeless and unable to care for them.
CPS removed the children from Mother's care, but then
eleven-year-old T.S., who was living with his maternal
grandmother, remained under her care. Several months later,
in September 2015, T.S.'s grandmother reported that she
was unable to care for him, so he was placed with I.J. T.S.
subsequently experienced some behavioral issues, and I.J.
reported that she was unable to care for him. TDFPS asked
Mother about potential placements for T.S., and she
identified Father, but the only information that Mother had
about him was that he worked at a chicken restaurant. TDFPS
was unable to locate Father, and in December 2015, it was
appointed temporary managing conservator of T.S., who was
placed in a foster home. TDFPS filed a petition to terminate
the parent-child relationship between T.S. and Mother and
located Father at some point, and in late February 2016, he
signed and acknowledged receiving a family service plan that
was made an order of the court and that required him to visit
T.S., complete parenting classes, obtain and maintain stable
employment and housing, submit to drug tests, and maintain
contact with TDFPS. Father completed the parenting classes and
remained employed by the chicken restaurant, but he refused
to submit to drug testing (and admitted to using marijuana),
attended only about half of his visits with T.S., and failed
to maintain contact with TDFPS in the month leading up to the
final termination trial. Mother completed no part of her
both knew about the final termination trial in December 2016,
neither Mother nor Father attended it. The trial court
ultimately signed an order terminating the parent-child
relationship, "if any, " between T.S. and Father,
finding by clear and convincing evidence not only that
termination was in T.S.'s best interest but also that
Father had (1) failed to timely file an admission of, or a
counterclaim for, paternity under family code chapter 160;
(2) constructively abandoned T.S.; and (3) failed to comply
with the provisions of a court order establishing the actions
necessary to obtain T.S.'s return. See Tex. Fam.
Code Ann. §§ 161.001(b)(1)(N), (O), (2),
161.002(b)(1) (West Supp. 2016). The trial court also
terminated Mother's parental rights to T.S. Father
appeals. Mother does not.
issues, Father challenges the legal and factual sufficiency
of the evidence to support the trial court's best
interest and family code section 161.001(b)(1)(N) and (O)
findings. The State initially responds that we should
summarily overrule Father's issues because he failed to
challenge an independent ground that supports the trial
court's termination order-the section 161.002 finding.
Section 161.002 provides that the parental rights of an
alleged father may be terminated if "after being served
with citation, he does not respond by timely filing an
admission of paternity or a counterclaim for paternity under
Chapter 160." Id. § 161.002(b)(1). On two
prior occasions, this court has declined to affirm a
termination order on an unchallenged section 161.002 finding
because, although the father did not assert his paternity via
an admission or a counterclaim, he did appear for trial,
testify that he was the child's father, and either
request that his rights not be terminated or testify that he
was responsible for the child. See In re A.R.F., No.
02-13-00086-CV, 2013 WL 3874769, at *13 (Tex. App.-Fort Worth
July 25, 2013, no pet.) (mem. op.); In re D.B., No.
02-07-00428-CV, 2008 WL 2553343, at *7 (Tex. App.-Fort Worth
June 26, 2008, no pet.) (mem. op.). However, on another
occasion, we affirmed a termination order on an unchallenged
section 161.002 finding because unlike in A.R.F. and
D.B., the father visited the child only once and did
not appear for trial and testify that he was the child's
father. See In re D.T., No. 02-13-00331-CV, 2014 WL
261408, at *2‒3 (Tex. App.-Fort Worth Jan. 23, 2014, no
pet.) (mem. op.). In this case, Father did not appear for
trial and testify that he was T.S.'s father, but he did
complete parenting classes and attend about half of his
scheduled visits with T.S. Although a close call, this cause
is more like A.R.F. and D.B. than it is
like D.T. We therefore decline the State's
invitation to affirm the termination order on the section
161.002 finding and will address Father's dispositive
decisions must be supported by clear and convincing evidence.
See Tex. Fam. Code Ann. §§ 161.001(b),
161.206(a) (West 2014); In re E. N.C. , 384 S.W.3d
796, 802 (Tex. 2012). In evaluating the evidence for legal
sufficiency, we determine whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction
that TDFPS proved the challenged ground for termination.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
review all the evidence in the light most favorable to the
finding and judgment. Id.
reviewing the evidence for factual sufficiency, we determine
whether, on the entire record, a factfinder could reasonably
form a firm conviction or belief that the parent violated the
relevant conduct provision of section 161.001(b)(1). In
re C.H., 89 S.W.3d 17, 28 (Tex. 2002). The same
standards apply to a best-interest evidentiary sufficiency
only challenge to the trial court's section
161.001(b)(1)(O) finding is that it contains an improper
reference to "mother" instead of to
"father." He argues that he "has no duty by
statute to comply with provisions that are necessary for the
mother to obtain the return of T.S." Viewed in context,
the reference to "mother" is clearly a
typographical error. The section 161.001(b)(1)(O) finding is
contained in section 7.3.5 of the termination order. Section
7 of the termination order is devoted entirely to
"Termination of Respondent Father
[T.W.S.'s] Parental Rights." [Emphasis added.]
Indeed, section 7.2 addresses the trial court's section
161.002 finding, which could only apply to Father, and
section 7.3.4-the trial court's section 161.001(b)(1)(N)
finding-repeatedly references "father." We
disregard the oversight and construe section 7.3.5 as if it
instead said "father." See In re D.M., No.
04-14-00059-CV, 2014 WL 2917458, at *3‒4 (Tex. App.-San
Antonio June 25, 2014, no pet.) (mem. op.) (reasoning
similarly). Further, to alleviate any potential confusion in
the future, we will modify the trial court's termination
order so that it correctly references "father."
Cf. In re C.L., Jr. & A.J.L., No.
05-14-01520-CV, 2015 WL 682159, at *2 (Tex. App-Dallas Feb.
18, 2015, no pet.) (mem. op.). We overrule Father's first
issue and do not reach his argument challenging the trial
court's section 161.001(b)(1)(N) finding. See
Tex. R. App. P. 47.1.
second issue, Father argues that the evidence is legally and
factually insufficient to support the trial court's
best-interest finding because TDFPS asked only one conclusory
question that was relevant to the best-interest inquiry-
whether it was TDFPS's position that terminating both
Mother's and Father's parental rights was in
T.S.'s best interest, to which T.S.'s caseworker
responded, "Yes." This argument is frivolous.
Evidence can be relevant to the best-interest inquiry even if
it is not associated with a question that expressly contains
the words "best interest." Specifically, we review
the entire record to determine the child's best interest.
In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The
same evidence may be probative of both the subsection
161.001(b)(1) ground and best interest. Id. at 249;
C.H., 89 S.W.3d at 28. Further, there are numerous
nonexclusive factors that the trier of fact in a termination
case may use in determining the best interest of the child.
See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
1976); see also E.C.R., 402 S.W.3d at 249.
already determined that termination was appropriate under the
trial court's section 161.001(b)(1)(O) finding. Although
Father completed parenting classes and remained employed at
the chicken restaurant, he refused to submit to drug testing,
admitted to using marijuana, attended only about half of his
visits with T.S., and failed to maintain contact with TDFPS.
T.S.'s caseworker testified that Father could not provide
T.S. with a safe and stable environment, that T.S. "has
a lot of resentment towards [Father]" and
"doesn't think that [Father] likes him because
[Father] doesn't show up to all of the visits, " and
that T.S.'s foster parents may adopt him. According to
the caseworker, T.S. said that "he doesn't want to
go to [Father] because he doesn't show up to see
him." Father has multiple criminal convictions, most of
which are drug related. Viewed under the appropriate
standards of review, the evidence is legally and factually
sufficient to support the trial court's best-interest
finding. See J.P.B., 180 S.W.3d at 573;
C.H., 89 S.W.3d at 28. We overrule Father's
modify section 7.3.5 of the trial court's January 24,
2017 order terminating the parent-child relationship between
Father and T.S. by replacing the word "mother" with
the word "father." Having overruled Father's
two issues, we affirm ...