### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 21

- 00 617

- CV

C. C. , Appellant

v. Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 313,975-B, THE HONORABLE JACK WALDEN JONES , JUDGE PRESIDING

O P I N I O N

C.C. 1 appeals from a final decree terminating her parental rights to daughter

“ Della ,” aged 1 5 y ears when the associate judge rendered the decree, and na ming the Department of Family and Prot ectiv e Services a s Della ’ s sole m an aging c onservator

. See Tex. Fam. Code § 161.001(b) (1 )(D), (E), (O), (P) , (2)

. The decree also terminated the rights of Della ’ s father , who did not appeal. For the reasons set forth below, we will re verse the portion of the decree
terminatin g Mother’ s pa rental rights and remand for new trial.

I. BACKGR OU ND 2 Della is a teenager with profound physical and intellectual disabilit ies caused by a
chromosomal defect known as 1p 36 delet ion. As a result of her diagnosis, De lla is non

- verba l

1 S ee Tex. F am . Code § 109.002 (d ) ; Tex. R. A pp. P. 9.8.

2 This section is taken from undisput ed aspects of the recor d.2 and can not use sign lan gua g e , has impaired vision with parti al blindness in one eye, walks only
with the assistance of leg braces; suffers from seizures , w ears diapers , and prefers toys typically used by infants instead of age

- appropr iate ac tivities

. She take s m edic ation to con tro l her seizures and requires regu lar occupational and physical therapy

. Della cannot attend to her own needs ,

r elies on total care from her caregi ver s and, as the Department describes it, needs “ constant supervision

. ” At the onset of thi s case, Dell a w as l i ving with C.C. and C.C. ’ s boy friend , and
Della ’ s father was inc arcer ated in a federal pen itentiary on an unspecified “ se xually h einous
crime ” 3 ; by the time of trial , Della was living at a n o n - p r o f i t facility known as the Hope House , whi ch provides res idential care f o r certain children and adult s with di sabilities. Aside from he r disabilities, Della is reportedly in generally good heal th, alt hou gh at intake she did have an

un classified cyst on her head and nascent curv ature of the sp ine. According t o i ts removal af fi d avit, t he Departme nt became in volved with C.C.
and Della in Sep t ember of 2 019 when it received an anonymous re port expressing concern about
C.C. ’ s we ll

- being. The caller indicated that C

. C. was using m ethamphetamines and was “ hardly

eve r ” hom e, that Del l a was typically le ft alone with C.C. ’ s boyfriend, that C.C. occas ionally

“ fall s asleep while driving with [Del la] in the car, ” and that C.C. was “ going downhill and even lost her job. ” The affidavit ind icated that neither the caller nor the Department wa s awar e of any

“ accidents or injuries to the child a s a res u lt of [C.C. ’ s] drug use ” and that Della had not been involved in any automobile accident s.

3 This is the l anguage used at intake. Exhibits admitted at tr ia l i ndicate that in 2015 Della ’ s father was c onvi cted of seven counts, including strangulation ( 2 counts ) , assault with a deadly w eapon (1 count) , assault wit h in t en t to commit murder (2 co unt s) , and ag grava ted sexual assaul t (2 counts)

. The acts g i ving ri s e to the charges and subs equent conviction occu rred in 2013 and 2014. The trial court sentenced Della ’ s father to 240 mo nths o f imprisonment in the custo dy of the fede ral government

.3 Shortly after th e anonymous report, a D e p a r t m e n t i n v e s t i g a t o r met with C.C., who
denied use of methamphetami nes but said she might have accidentally taken “ e csta sy laced with methamphetamines. ” When C.C. tested positive for methampheta mine s and ampheta mi nes , 4 the
investi gator returne d to in form C.C. th at she wo uld need to submit to random dr ug testing , which C.C. agreed to. By November, C.C. had not followed through with her testi n g obligation, offering se veral excuses for missi ng her appoin tmen ts while also admitting that she h ad been using methamp hetamin es since March and that she ha d rece ntl y taken ecsta sy “ 45 days in a row ”

to “ stay focused. ” In December, the associate judge ordered C .C. to begin ther ap y and paren ting
clas s e s , to submit to drug tes ting, and to c ooperate with the Depa rtme nt and the associate judge

. A D e p a r t m e n t c a s e w o r k e r fi rst tri ed to visit C.C. in December, but C.C. was not home. In January of 202 0 , the Department scheduled a home vi si tation w i th C .C. , but C.C. was over an
hour late for the meeting. C .C. explaine d that she had r e c e n t l y begun driving for a ride

- sharing

se rvice a nd had an opportunity to pick up several additional rides before re turning home. In an apparent attempt to accommoda t e for m issing the visitation, C.C. diale d home and asked to be pl aced on speaker phone s o t h a t s h e m i g h t t a l k w i t h t h e D e p a r t m e n t ’ s r e p r e s e n t a t i v e s
. Durin g that call, C.C. indicated that she uses metham phe tamines when she is tired, that she most recently u s ed it two and a half weeks ago, that sh e sometimes is under the inf l uence whil e she is providing r ide

- shar i n g services, that sh e d o es n ot “ geek out ” when under the influence, that she is prone to depressi on but does not treat that depression , an d that she h a d not complied w ith the

4 Ecst asy is a n am phetamine. See Ex parte Ghahremani , 332 S.W. 3d 470, 4 76 (Tex. Crim. App. 2011) (referring to ec s tasy as an amphe tamine); Richmond v. Stat e, No. 01

- 16

- 00380

- CR, 2017 WL 929538, at *2 (Tex. App.

— Houston [1 st Dist.] Ma r. 9, 2017 , no pet. ) (mem. o p. , not de signated for publication) ( “ ‘ 3,4

–methylenedioxy amphetamine ’ is more comm only known as ecs tasy

. ” )

.4 order. C.C. eventuall y arrived at home for the end of the visitation and signed a fam ily service pla n t hat require d C.C. to atten d parenting classes and psychological therapy , submit to a
substan ce - abuse assessm e n t and regular drug testing , maint ain empl oyment and provide child

s upport , demonstrate an ability to provide a safe home for Dell a an d meet Del la ’ s special needs , and avoid drug use and criminal activity.
In t he third week of January, the Departme nt cond u c ted an unannounced home
visit after learn ing that C.C. had test ed p ositive for methamphetamines and amphetamines the previous week . The Depart men t ’ s investi gator found C.C. and Della in the home with C.C. ’ s boyfriend and Della ’ s 1 9

- year - old broth er , Christopher

. C h r i s t o p h e r a n d C

. C

. ’ s b o y f r i e n d both denied any a wareness of C.C. ’ s drug use, but Christopher conc eded that he himself would likely

t es t po sitive f or THC if subjected to a drug test. W h i l e the investigator was o n s i t e , C.C.
submitted to another test, , which came back pos itive for methamphetamines a nd amphetamines

. C.C. agreed to a s a f e t y pla n wh ereby her boyfriend would serv e as Dell a ’ s p r i mary car e g iver and C.C. would find somewhere else to stay. After t he unannounced visit, the Department concluded
that “ [t] here i s co nsiderabl e concern for the s afety and well [

- ] being of [ Della ] if left in this h ome and left with a caregiver who i s act ivel y using Methamphetamines. ” The associate judge en ter ed temp or ary orders removing Della from the home, appointing the Depart ment as temporary managi ng conservator, a nd requiring C.C. to comply with the provisions of the family service plan a n d t h e s a f e t y p l a n
. The Depar tment pla c ed Della in a r e s i d e n t i a l faci lity in San Anto nio

. In March, the Department fil ed a status r epor t i ndicat ing t hat C.C. was complying
with mo st of her service pla n but was still testi ng positive for methamphetamines. The re p ort
stat e d that both C.C. and Della were in good heal t h and that Della was cl osely bonded to her
mother. C.C. allegedly told the Department that she had m oved back into th e family home but5 would be “ unable ” to re main there

— apparently for financial reaso ns

— an d wa s actively looking
for other housing opti ons
. The Department recommended that it remain man ag ing conservator
and that C.C. have monitored visitation ; it also indicated con current goals of family reunification

a n d adoptions. At the end of March, the De partment fil e d the results of C.C. ’ s initial
p sycholog ical screening. The psychol ogist found C.C. to be of “ average int e lligence ” but diagnosed C.C. with mult iple substan ce - ab use disorders and post

- tr aumatic stress d i s o r d e r
. He noted that she had begu n t aking two pr e scription medications for depress ion. He also observed:
[C.C.] was dressed neatly and appropriately in a sw eatshirt, jeans, and tennis shoes. H er black hair app eared neat and clean, and her grooming an d hygiene were within normal limits. [ C .C.] appear e d anxious and somewhat sullen, th ough sh e was polite, forthcoming, and cooperative throughout the evaluatio n. She made appropriate eye contact, a nd rapport was ea sily established.

. . . . She reported ex periencing frequent nightm ares, flas hba c ks, and exa g gerated startle response stemming from pa st traumatic events. [ C.C.] currently presents with sleep difficu lt ies, mood instability, anxiety, appet ite disturbance, and a sullen mood, though these symptoms may be attributable t o separation fr om h er daughter and perceived instability in her life. S he also reported a history of alcohol and drug abuse.

The psych ol ogist then recommended that C.C. rema in enro lled in Na rcotics Anonymous , continue see ing her th erapist, and maintain a regi me n of p rescr i b ed ps ychotropic m e dications

. The psycholo gist made no comm ent on C.C. ’ s parenting abilities. In Apri l, C.C. filed a motion t o modify the temporary orders. C.C. re ported t hat
Della ’ s p l a c e m e n t f a c i l i t y was not providing the c are necessary to addres s De l la ’ s disabi lities
and w a s not following Dell a ’ s specialized diet . In addit ion, C.C. reported that inadequate supervision by the facility and t he Department had resul ted in a broken ankle and that Della had6 regressed from walkin g with assistance to fu ll

- ti me use of a wheelchair

. According to C.C.,
Della was also suffering from bruise s, a per vasive r ash , and bed sores

. C.C. asked to have De lla
transferred to the Hop e House. The associate ju dge agreed

. In October , the Departmen t filed its permanency r eport r ecommend ing continue d placement and re stat ing the goal of reunification or unrelated ado ption. The associate judge adopted that rec ommendatio n through permanency orders. T he following month, the Department filed an a mended peti tion seeking reunifi catio n , if poss ible , and otherw i se s eeking
termination of C.C. ’ s rights

. I n i t s final re port to the associate judge , the Dep ar tment recommend ed termi nation of C.C. ’ s parental rights “ based on her lack of acti on or ability to
dem onstrate a desire o f a sobe r li f e , ” which “ would place [ De lla ] in harm ’ s way and/or at risk of future abuse/neglect if [ Della ] were to be returned to [C .C. ’ s] care. ”

II. TR IAL
In m id

- 2021, over the course o f fo ur days spanning four months, 5 t he parties tried
the case to an asso ciate ju dge r e mo tely in accord ance with the e m e rgency order s in plac e at the
time

. See Tex. Fam. Code § 201.005(a) (allowing ass ignme nt to associate judge) ; Thirt y - Sixt h Emergenc y O rde r Regardin g CO VI D

- 1 9 State of Disaster , No. 21

- 9026, 629 S.W.3d 897 , 89 7 (Tex. Mar. 5 , 2021) (order) ; Thirt y - Seventh Emergenc y O rde r Regard in g CO VI D

- 1 9 State of
Disaster , No. 21

- 9050 , 629 S.W.3d 186 , 186 ( Tex. May 26, 202 1 ) (orde r) ; Thirt y - Eighth Emergenc y O rde r Regardin g CO VI D

- 1 9 State of Disaster , No. 21

- 9060 , 629 S.W.3d 90 0 , 900

5 T he unusual timelin e of the case , which remained pending for nearly two years, is presumably a result of the ongoing pand emic. Cf . Tex. Fam. Cod e § 263.40 1 (a) ( requir ing trials in such cas es to co mmence on or before the first Mon day following t he anniv e rsa ry of the fi rst fi ling of temporary orders ). The Department ’ s motion f or an extension , whic h the trial court grant e d, r efer red only to “ extraor dinary cir cumstances ” that necessitated exte nding th e sta tu tory deadline from January 25, 202 1, to J uly 24, 2 0 21

. See id . § (b).7 ( Tex. J un e 6, 2021 ) (order) ; Thirt y - Ninth Emergenc y O rde r Reg ardin g CO VI D

- 1 9 State of
Disaster , No. 21

- 9078 , 629 S.W.3d 21 3 , 21 3 (Tex. July 21, 20 21 ) ( order)

. Department

c ase worker Jessica Jones and respond ent C.C. were the only witne sses to testif y. The Depa r t me nt offered

— and the associate judge ad mitted

— ten exhibits into evidence; n e i t h e r C.C.

n o r t h e g u a r d i a n a d l i t e m tender e d any evidence for a dmissio n
.

A
. Jones
Jones testified as the only witness for the St ate a nd began by explaining tha t the
D epart ment or i g inally removed Della from the home du e to concern s about C.C. ’ s alleged use of

m e t h amphetamines

. She further testified that she “ [ did ] n ’ t know ” if C.C. was currently employed and that, to he r know ledge , C.C. was h om eless. Jones testified th at C. C. ’ s m o s t r e c e n t drug tests had been two mont hs earlier, when she t est ed positive for metha mpheta mines both
times. According to Jones, C.C. did not su bmit to the remaining drug tests required by the Department and the court ’ s orders

. Jone s explained that C.C. h ad completed the requisite
rehabilitation and parent ing classe s but that she ha d been disc harged by two t herapists for
inconsistent attendance and for “ n ot taking [ therapy ] seriously. ” She testif ied that C. C. had regul arly a t t e n d e d her visitations with De ll a u n t i l s h e t e s t e d p o s i t i v e f o r m e t h a m p h e t a m i n e s and

t h a t v i sitation would n o t r e s u m e until C .C. began testing n egative on a regular bas is

. Jones
conceded tha t C.C. had continued to provide sup plie s for D e lla.
W ith respe ct to Dell a, Jones describ ed Dell a ’ s disabili tie s in general ter ms , explaining, " She is diagno s ed with

— I believe it ’ s a

— it ’ s a c hromosomal deletion that results in her having, like, intellectual disabilities, [and ] seizures on oc casion

. ” S he then testifi ed that
Della would need co ntinuin g care after r eaching the age of majority.8 Jones e xplained t h at the Department had originally h oped for reuni fication but
h a d r e v i s e d i t s r e c o m m e n d a t i o n t o termination. Whe n asked w hether the re commendatio n is in
Della ’ s best interest , Jones replie d:

At t hi s time [C.C. ] has been offered several opportuni ties to wo r k services and make the progress necessary to have Della returned to her care. Unfortunately, at this time, nea rly a year and a half later, [C.C .] is still no t drug testing for the Depart ment, s he is still de nying a potential relapse as of May, and she d o esn ’ t have the safe, stabl e housing that the D epartment has been able to assess. As of July 5 th [,] she had repo rted to me that she di d not have housing and th at she was bathing in river w ater th at came throug h Belton.
Jones added that, upon te rmination, “ The Department would hope to send out referra ls for potential adoptive homes for [Della] ” but conceded that “ wi th [Della ’ s] disabilit ies and the
services that s he needs that may be diffic ult

. ” S he explained that without termination, adoption

w ould not b e possible, and Della would “ essentially remain in the Department ’ s care and custody in a facility placement pote ntially indefinitely. ”
On cross

- e xamination, Jo ne s testified that she had “ n ot been ab le to meet with ”
Della but that she had r emaine d in conta c t with Della ’ s caregi vers at the Hope House

. She recalled that the reports she had rec eived from “ all parties, ” including the casewor ker previou sly assigned t o the case, indicated that C

. C. and D el l a have a “ positive relationship ” and a “ s trong bond. ” N e vertheless, sh e reiterated her belief that term ination is in De lla ’ s best interest.

B. C.C
. C.C. testified as the only witness on her own be half. She testi fied that her car had
been repossessed an d that “it ’s hard to get a job ” with out a ve hicle . S h e added that she was

“ applying steadi ly for jobs every day, still trying to work with unemployment, get that going

. ”
C.C. also attrib uted her in consist en cy in r eporting for d rug testing t o a lack of ad equ ate9 transportation. She attributed t he failed attempts at therapy to the fact that she had p r e v i o u s l y bee n seeing her own therapist that she “ real ly liked ” when the Depart ment asked he r to begin seeing a Departm ent

- approved thera pist

. C

. C. exp lained t hat she did not “see ey e - to

- eye ” with the Department

- approve d therapists. Addressing her struggles with substan ce abuse, C.C. testified, “ I have been working very hard for my so briety, eve ry thing tha t ’ s been going o n already. ” She continued by explainin g that sh e “ had some very unfortunate luck, really, an d it jus t has crippled me right at the moment. ” She then e mp h asized the strain of not having cons istent employment or “ a rel iab le
ride [or] a reli able place to st ay. ”
Counsel asked C.C. to describe the c are De l la requires

. C.C. responded:

For the care “ c are ” ? S h e definitely needs her

. . . ankle braces, bec ause that ’ s part of the chromosome deficiency that she has. It ca uses the lo w muscle to ne in her lower legs wh ich causes her feet to curl and her knees to knock and then it causes the scoliosis of the spi n e. She desperately needs them, the AFOs. And the shoes I brought her are actually some ones I special orde r off lin e [sic] bec ause they f it her bra ces in t here, but she hasn ’ t had tho se on since sh e br oke her ankle [a t the San Antonio facilitly] last yea r
. But she definitely, definitely needs those.

. . . And her weight is a big concern because of that low muscle to ne in her l ower legs

.
When aske d if she thought she could “ fulfill ” those needs, C .C. responded, “ Of course. ” She explained , “ I t ’ s been 1 3 years that her and I were never separated. Eve ry day I

— every day I was
with her. I watched her have 57 seizures

. I have bee n to ever y doctor, ev ery specialist, everything with her

. ” C.C. added t hat during the pendency of this case she had “ brought [D e lla]
clothes and shoes and hygi ene [sic] ” and “ a bunch of pull

- ups
. ” She emphasized that “ if [Della] needs anythi ng else, ” she would prov ide it. F inally, C

. C. agreed that she could c ontinue to as si st10 “ wi t h making sure these things happen ” provid ed that h er rights are not terminated

. S h e emphasized t h a t s h e had, as s he c haracterized it , “ done it for all these years already. ”
On cros s - exami nation, th e Department asked C.C. if she reco g nized that he r
te s timony regarding substance abuse and so briety conflict ed with the resul t s of her most recent testing. C.C. said she recognized the discrepancy but was not sure what might explain i t.

C
. E xhibits
Th e associate judge admitted into evid ence petitione r ’ s exhibits, inc luding the

r emoval affidavit, t he final report regar d i ng cons ervatorship, C .C. ’ s family service plan , C

. C. ’ s psychological ev aluation s , and a record of all drug t estin g and results from Janua ry through September of 2020. Als o admitted wer e se veral documen ts related to Della ’ s father ’ s case, which is not at i ssue on appeal. Neither C

. C

. n o r t h e g u a r d i a n a d l i t e m tender e d any exhibits for

a dmission. In ad ditio n, t he parties did not ask for the case file to be admitt ed in to ev idence. As

a co nsequence, the associate judge could take notice of the existence of t ho s e pleadings and filings but could not evaluat e the truth of any statements made in those pleadings a nd filin gs
. See Tschirhart v. Tschirha rt , 876 S.W.2d 507 , 508

– 09 ( Tex. App.

— Aust in 1994 , no writ )

.

D
. Recommendations
A t the conclusion of C.C. ’ s testi m on y and after the guardian ad litem declined to

c all any wit nesses, b oth sides reste d an d the associate judge as ked the guardian ad litem for h er recommendat ion. She rep lied :

Your Ho nor, this is probably t he hardest case I ’ v e had since I ’ ve been a guardian a d litem. I ’ m not going to l ie to you. I have been team mom since day one . I still

— I totally get why the Dep artment is asking what they ’ re asking. I mea n, I have pul led for mom , and you ’ ve told her to go hair tes t and she didn ’ t go. She ’ s

— you know, she h asn ’ t carried out orders fr om the Court, and I get all of11 that. And if I thought for one minute tha t we cou ld find a place for [ Della ] to be adopted, th en I would ju mp on the t er mination train.

. . . But I still at this point ca nnot

— cannot r ecommend t e rmination. I don ’ t think [ the Dep artment] ha [s] anything for [ Della ]

. I ’ ve been in contact with th e facilit y and they are very positive ab out mom and [ D e lla ’ s ] co mm unication, a nd their bond is strong enough that the facility has com mented on how strong i t is and hopes that [ De lla ] can go back to mom. So that being said, you k now, everything is in mom ’ s court a t this point, but I just

— I can ’ t get on the t ermination t rain. I jus t can ’ t do it. So I kno w the Court will find [ i t ] in the best interest, but m y recommendation is not terminat ion.

When asked to clarify he r recommenda tion, the guardian ad litem ex p lain ed that if re unification
is not possib le, “ I want [C.C. ] to be able to v isit with [Della] [be cause] I think [Della] is going to
need that no matte r what we all decide. ”
The D e p a r t m e n t responded by e mphasizing that C. C. had been afforded “ every opportunit y to try something and she ’ s ho meless, refusi ng to admi t she relaps ed, a nd the only
chance th is child has is in adoption because this woman is nev e r going to get her act together

. ”
Th e D e p a r t m e n t then recommended termina tion under predicates (D) ( knowing l y plac ing child
in end anger ing conditions ), ( E ) ( know in gly enga ging in e ndangering conduct or placing child with person s eng aged i n endangering co n duct ) , and (O) (failure to comply with cou rt orders).
Counse l for C.C. dis agreed with the D e p a r t m e n t ’ s recomm endation , e xplaining:

We have a child that is very

— is v ery unlikely th at woul d be adopted by anybody, that has nobody else but the mother , that it ’ s only bonded to the mother. And I believe if we ’ re really thinking about the best interest of the child, ev en if the D epartment has the co nservatorship, that the parental rights s hould not be terminat ed and should be under certain co nditions. My client should be allowed to give that care and that

— and that love that she ’ s been giving for so many years and that nobody else at this point can d o for this chi ld. I wou ld really reque st for this Court to be

— to treat this as a special

— a special case. It ’ s unu s ual. And I would like to request that my clien t ’ s parental rights are not terminated12 She closed by asking that C.C. “ be allowed to work w ith the Depart ment so sh e can do
somethi ng for the child that she so desperately wants ” to do

. The attorney ad lite m then offered his position on the case:

I don ’ t see that we ’ re accomplishi ng anything at all for this child b y terminat ing the parental righ ts. I don ’ t t hink the D epartment has me t the ir ground [sic] b y clear and convincing evidence that it ’ s in the chil d ’ s best interest. Although there may be ground s for term ination

. . . I t hink that the chances of this child being abl e to be adopted are v irtually zero
.
He conc luded by observin g, “ I just can ’ t see that it ’ s in the best interest to take away the paren t al rights of either of these parents and just l eave this child a ward of t he state when

— you know, with no pos sibility o f an adoption. ”
The associate judge then anno unced his decisio n from t he bench, finding that the Department had satisfied its burden with re s pect to the statutory predica tes a n d that terminati on is in Della ’ s best interest. The judge indicated that he would issue a final decree a l l o w i n g C

. C

. weekly m o n i t o r e d a c c e s s t o D e l l a on the condition that C.C. “ is drug testing clean consistently. ”
E
. Judgmen t
In its decree of termination, t he associate judge found tha t C.C. ha d : (1) knowing ly p laced or knowingly allowed Della to remain i n cond itions or surrou ndings that
enda ng er e d h e r physica l or emotional well

- being , (2 ) engage d in condu ct o r kno win gly placed
Della with per son s who eng age d in conduct that endange r e d D e l l a ’ s physical or emotion al well

being , (3) f ailed to comply with the provis ions o f a court order specifical ly establish ing the

a c tions ne cessary for C.C. to obtain Della ’ s r eturn , and (4) used a contro lled subs tance in a

man ner that endang ered Della ’ s he a lth or we ll

- being

. See Tex. Fam. Code § 161. 001(b) (1 )(D), (E ), (O), (P) . T he ass ociate jud ge also found th at termination is in De lla ’ s be st interest. See13 id

. § (2)

. He then issued a final dec ree t erminating C.C. ’ s parental rights and n aming the Department as Del la ’ s s o l e managing cons ervat or
. The decree also ordered “ t hat [C.C.] is
allowed t o have possessio n and access t o the child ” in the form of “ supervis ed virtual o r in person visits with the c hild to be supervised by the Departmen t, if she d rug test [s] consistently
and negative. ”
C.C. requested de novo review before the district court , se e id. § 2 01. 015 ( a ) (allowing d e novo review) , but that request was denied as unt imely , see id

. ( allowin g thr ee days to request review )

. She then perfected t his appeal , challeng ing the termination but n ot the designation of the Depar tme nt as Dell a ’ s s o l e m anagin g conserva to r.

III. S TANDA RD OF REVIEW
A court may order termination of t he parent

- child re lat ionship on ly “if clear an d
convin ci ng ev ide nc e s up p orts that a pa rent engaged in one o r more of t he [statutorily] enumerated gr ounds for ter mination and t hat term in ation is in th e best interest o f the child.” See
In re N.G. , 577 S.W.3 d 230, 232 (Tex. 2 019 ) (per cur iam) (citing Tex. F am. Code § 161. 0 01 (b) ) ; A. C. v. Texa s Dep ’ t of Fam

. & Pr otective Se rv s. , 577 S.W.3d 689 , 69 7 (Tex. App.

— Austin
201 9, pe t. de nied)

. “Proceedings to t erminate the parent

- child relationship implicate rights
of constituti onal m agn itude th at qualify for height ened judicia l prote c tion.” In re A.C. , 560 S.W.3d 624 , 626 (Te x. 2 018). Parental rights have bee n char acterized as “e ssential,” “a
basic civil ri gh t of man,” and “far more precious than property rights. ” See Holick v. S mi th , 685 S.W .2d 18, 20 (Tex. 1985) (c iting Stan le y v
. Illinois , 405 U.S. 645, 651 (1972 )). T hey are “perhaps the oldest of the fun damental l iberty inte rest s” pro tected by the U nit ed States
Constitution. See Troxel v. Granville , 530 U.S . 57, 65 (2000) ; E. E . v . Texas Dep ’ t of Fam

.14 & Protective Se r v s
. , 598 S.W.3d 389 , 396 (Tex. App.

— Au stin 2 020, no pet.). “ When the State initiates a p are ntal [

- ] rights term ination pr oceeding, it s eeks n ot merely to i nfringe that
fundam ental liberty inter e st, but to end it. ” S ant osky v . Kramer , 455 U.S. 745, 75 9 (1 98 2)

.

“ Co n sequently, t ermination procee dings sh ould be stri ctly scrutinized, and involunta ry termination statut es are str ictly constru e d in f avor of the p arent. ” Holick , 685 S.W.2d at 20.
“Be c ause termination of pa ren tal ri ghts ‘ is complete, final, irrev oc ab le an d divests for all time’
the nat ural and legal ri gh ts between parent and child, a cour t cannot involun t a rily sev e r that
relati o nshi p ” in absence of “ evidenc e sufficient to ‘produce in th e mind o f the trier of fa ct a f irm
belief or c onviction as to th e truth o f the allegations sought to be establi shed.’ ” A .C. , 560 S.W.3d at 6 30 (quoting Tex. Fam. Co de § 101 .007 and H olick , 685 S. W

. 2d at 20 )

. “This heightened pr oof standard carries the we ight and gr avity due p roc ess re quires to protect the
fundamental r i ghts at s take.” Id

.

“ A correspondingly searc hing st a ndard of appellate review is a n essential
proc edura l adjunct. ” Id

. “The d istinc ti on between legal and factual sufficiency lies in th e extent
to w hich dis p u te d evid ence contrary to a fin ding may be c o nsid e red.” Id

. “Evidence is legally
sufficien t if, v i ewing all the eviden ce in the light most favor able to the fa c t

- findi ng and
consid er ing undisputed contrary evidence, a reasonable fact finder coul d form a f i r

m belief or conviction that th e finding was true

. ” Id . at 631. “Factual suffici ency, in c omparis o n, requires weighing disputed evidence contrar y to the findi n g against all the ev id ence favoring the finding.”
Id

. “In a factual

- suf ficiency re vi ew, the a p pe llate court must consider wh ether dispute d evi d ence is s uch that a reasonable f actfinder could n o t have resolved it i n favor of the finding.” Id

. “Evidence i s factually i nsuffi ci ent if, in light of the entire record, the disputed evidence a15 r easonabl e fa ctfind er could not have cred ited in favor of a finding i s so significant that t he
factfin der cou l d not have formed a firm belie f or conviction that the findi n g was true.” Id

.

IV. D IS CUSSION
In her sole issue on appeal, C.C. rais es two arguments: fir st , t hat the evidence is legally insufficient to suppo r t the best

- interest finding with respect to termi nation ; and second,
that the ev idence is factually i nsufficien t to suppor t t hat fin d ing. We disagree with the first
assertion but agree with the sec ond. C. C. does not challenge the cons erva t o rship determina tion.

A. Best
- Interest Standard

“ [ T ] here i s a strong presumption that the best interest of a child is ser ved by keepin g the child w ith a parent

. ” In re R.R

. , 209 S.W.3d 112 , 116 ( Tex. 2006). “ And b ecause of the strong presumption in favor of main t aining the parent

- child relati onship and the due p rocess implications of termina ting a parent ’ s rights to her mi nor child wit hout clear a n d convincing evidence, ‘ the best interest s tandar d does not pe rmit t erminatio n merely be cause a child mi ght be
b etter off living elsewhere. ’ ” In r e D.L.W.W. , 617 S.W. 3 d 64 , 81 (Tex. App.

— Houston [1 st Dis t.] 2020, n o pet.) ( quotin g In re J.G.S

. , 574 S.W. 3 d 101, 121

– 22 (Tex. App.

— Houston [1st Dist. ] 2019, pet. denied) ). “ M oreover, termination is not wa rranted ‘ witho ut th e most solid
and substantial r easons. ’ ” Id . (quot i ng Wiley v. Spratlan , 543 S.W. 2d 349 , 352 (Tex. 1976) ). “ In
p aren tal

- termi nation proc e e dings, [the Department ’ s] burden is not si mply to prove that a paren t should not have cu stody of her child; [the Depa r tment] must meet the hei ghten ed burden t o
prove, b y clear and convincing evidenc e, tha t the parent should no lon ger have any relationshi p with her child whatsoever. ” Id . (citing I n re K. N.J. , 583 S.W .3d 81 3, 827 (T ex. App.

— Sa n Antonio 2019, no pet.) ).16 In e v a l u a t i n g b e s t i n t e r e s t , we cons ider t he factor s set forth in Holley v. Ad ams , 544 S.W.2d 367, 37 1

– 72 (T ex. 1976) , which i nc lude t h e c h i l d ’ s wishes, the child ’ s e motiona l and physical needs no w and in th e fut ur e, any emotional or ph ysic al danger to the child now and
in the future, the paren tin g abi liti e s o f any pa rties seek ing a c c e s s t o t h e c h i l d , programs a vailable

t o hel p those part ies, p lan s for the child , the stability of a n y proposed pl acem ent, a n y e v i d e n c e that the parent

- c hild relationship is i mp r oper, and any excuses for the parent ’ s co nduct. S e e also
A. C. , 560 S.W.3d at 631; In r e E.N.C. , 384 S.W.3d 796, 807 (Tex. 20 12 ); In re C. H

. , 8 9 S.W.3d 17 , 27 (Te x. 2002). It i s the burden of the part y see king termination to establish that termination is
in the child ’ s best interest

. S ee In re J.F.C ., 9 6 S.W.3d 256, 266 (Tex. 2002)

. Th e set of factors
is not exha ustiv e, an d no si ngle f acto r is dispositive of the issue. S ee Holley , 544 S.W.2d at 371

– 72 ; I n r e A .B. , 269 S.W.3d 120, 126 (Tex. App.

— El Paso 2008 , no pet. )

. W h e n i t c o m e s t o c h i l d r e n w i t h p h y s i c a l o r i n t e l l e c t u a l d i s a b i l i t i e s , “ T he fact t hat
a ch ild has sp ec ial n eeds does not aut o matically mean that termination of the parent

- child
relatio nship is in the best interest of the child. ” I n r e M. A .A ., No. 01

- 20

- 00709

- CV,
2021 WL 1134308, at *36 ( T ex. App.

— H o u s t o n [ 1 s t D i s t

. ] Ma r. 25, 2021 , n o p e t

. ) ( m e m o p
. ) ( c i t i n g In re L.C.L ., 599 S

. W.3d 79, 88 (Tex. App.

— Houston [14th Dist.] 2020, pet. d e n i e d ) (en banc) )

. I n s t e a d , the factfinder must view the existence of any special needs

— like all relevant
fa cts and c i rcumstances

— through the Ho ll ey lens. In re C. H ., 89 S.W .3d at 27 ; In re K.N.J ., 583 S.W.3d at 823

. For example, the factfinder must w e i g h t h e parties ’ relative abili ties to meet
the child ’ s n eeds and a ny programs available to help th em do so

. M.A.A ., 2021 WL 1134308, at
*36

. T hus, a child ’ s s p e c i a l n e e d s w e i g h s i n f a v o r o f t e r m i n a t i o n t o t h e e x t e n t t h e e v i d e n c e

s u g g e s t s t h a t “ termin ation of [ t h e ] pare n tal rights would improve the outlook ” f o r t h e c h i l d ’ s h e a l t h

. I d

. ; s e e a l s o In r e J.E.M.M , 532 S.W.3d 874, 887 (Tex. App.

— H o u s t o n [ 1 4 t h D i s t

. ]17 2017 , n o p e t

. ) ( r e v e r s i n g t e r m i n a t i o n a f t e r o b s e r v i n g , i n t e r a l i a , t h a t D e p a r t m e n t h a d n o t
p r e s e n t e d a n y e v i d e n c e t h a t t e r m i n a t i o n o f parental rights to c h i l d w i t h a u t i s m w o u l d s e r v e b e s t interest )

.

B. Legal Suffi ciency When evaluating a lega l

- sufficiency cha llenge, we consider all the evidenc e weighing in f avor of t he d isputed finding and any undisputed cont rary evidence. A.C. , 560 S.W.3d at 6 30

– 631. With respect to De lla ’ s wis h es, it is undisputed that Della is non

- verbal and cannot express those wishes. 6 And altho ugh all reports indicate t hat Della is cl o sely

“ bonded ” to her mother, and while bonding is some evidenc e o f a child ’ s wishes, it is not a l o n e d e t e r m i n a t i v e of the q u e s t i o n
. See In re G.S ., No . 14

- 14

- 00477

- CV, 2014 WL 4699480, at *11 (Tex. App.

— Houston [ 1 4 th Dist.] Sept. 23, 2014 , n o p e t

. ) (mem. o p
. ) ( expla ining use of bonding as evidence of wish es of no n - verb a l children) ; In re M.A. M.S ., No. 02

- 13

- 00168

- CV,
2013 WL 5 6 58253, at *8 (Tex. App.

— Fo r t Worth Oct. 17, 2013 , pet. denied ) (mem. op.) ( term inating no t withstan ding that “ mothe r and her children love d eac h other and had a strong bond ” ) ; E.F. v. Tex as Dep ’ t of Fa m
. & Protective Serv s ., No. 03

– 11

– 00325

– CV,
201 1 WL 6938 4 96, at *3 (Tex. App.

— Austin D ec. 30, 2011, no pet.) (mem. op.) (explaining tha t
courts m ay “ consider their bond ” a s some evidence of c h i l d ’ s wishes ).

6 Appellant ’ s Brief contends that the fact that Della had “ reach [ed] an age [

- ] appropriate grade in sc hool ” implies that she mu st be able to express herself and therefore precludes an y conclusion that “ the child is not able to express h er desires regarding where she wants to live or what kind of relationship she wants with her mother

. ” The brie f urge s thi s Court “ to assume she co uld but th at no one asked her what her desires were

. ” T he brief offers no evidence in sup port of that assum p tion , no r have we found any. Moreover, federal law requires t he school district to enroll Della in age

- appropr iate e ducat ion. See Pl acements, 34 C. F.R. § 3 00. 116 (e) (2020)

.18 W ith respect to Della ’ s physical a nd emotional needs, h e r need for extens ive care and oversight is well e s tablished by this record. Both C .C . and the Department appear to have

some un derstandin g of those needs. And w h i le the Department ’ s fir st placement r esulted in inadequate supervision , a failure to follow Della ’ s daily reg imen, and ultimately le d to repo r t ed injur ies , the Department lat er placed Della in the Hope House, which both the Depa rt ment and C.C. agree can m e et Della ’ s nee ds if an adopti ve home or reu nification is not possible.
Turni ng to any physical or em o tional dangers posed, there is overwhelming
evidence that C.C. has a long history of substance abuse and remains in den ial as to the risks of drug use, a p p arently telling the Department that both methamphetamines and ec stasy give her

“ more energy, ” t hat she i s not unduly inf luenced by their us e, and that sh e is no t a d rug a d dict
but rather is suffering a temporary relapse

. While th e D epar tment reported tha t i t was not awar e of any harm that had befallen Della as a result of her mother ’ s substance abuse, that ab use nevertheless serve s as some evidence of endanger me n t because it “ exposes the child to the possibility that the parent ma y b e im paired or imprison e d

. ” D. H. v. Texas Dep ’ t of Fam

. &
Protective Servs ., -- S.W. 3d

--- , --- No. 03

- 21

- 00255

- CV, 2021 WL 5098 308, at *3 (Tex. App.

— A ustin Nov. 3, 2021 , no pet. ) (c i t ing In re J.O.A ., 283 S.W.3d 336, 345 (Tex. 2009) ). And g i ven the nu m be r of times C.C. missed home visitations, therapy appointments, and drug tests, it stands
to reason that her u npredi ctability may ex tend to any con tact C.C. would maintai n with Della i f

s h e w e r e allowed to retain her parental rights

. Cf. J.E.M .M

. , 532 S .W. 3d a t 890 (recognizing
need for stability and predictability as “ paramount ” consid eration but finding little or no risk
under circumstances of case). With respect to parenting ability, the re c o r d reflects that C.C. has a history with the Depar tme nt dati ng back to at least 2006 , when someone rep orted that sev eral chi ldren had19 been left o utside alone for over an hour

. T he present investigators researched but were unable t o determine the outcome o f that case. In 2010, the Department received a r ep ort that C. C. ’ s five
children , in c luding Della, were suffering negl ect d ue to C.C. ’ s substanc e abuse and tha t t he
children were left unsupervised while playing in dangerous conditions. The Departm ent inv e s t i gated and remov ed the c hildre n. Two of those ch ildren wer e adopt ed; the three ol d er children were assigned man aging conse rvators until the Department deemed it saf e for those
children to return to C .C. ’ s care
. In the pres ent case, there is evi dence tha t C.C. is of ten u nder
the influence of illegal sub st ances an d is ra rely home. Ther e is additional evidence that C.C. is only employed intermittently and cannot maintain a stable household. Turning to pro grams available to he lp C.C., the record re flects th a t C.C. attended the parenting classes required by the Depar tment. However, t h e re c ord also reflects that C.C. missed most of her drug tests during the pendency of this case, attended N arcotics A nonymous only occasionally, a nd abandoned ps ychiatr ic therap y notwit hstanding her conceded struggles
with ment al health and substa nce abuse. O n the whole, C.C. the evidence establishes that is not taking adv antage of the support systems available to her.
With r espect to p lans for Della an d the stability of th ose proposed pl ans , J o n e s
t e s t i f i e d t h a t t h e D e p a r t m e n t plans to find an adoptive home f o r Della

. B e c a u s e t h e Department
has not y e t identified a prospective adoptive home, it is difficult to evaluate its plan with a ny specificity. S e e J.E.M. M , 532 S.W.3 d a t 887 ( n o t i n g , i n t e r a l i a , D e p a r t m e n t ’ s f a i l u r e t o i d e n t i f y
p r o s p e c t i v e a d o p t i v e h o m e b e f o r e r e v e r s i n g t e r m i n a t i o n )

. C .C. plans for Della to remain a
lon g - term patient at the Hope House and plans to continue to monitor her care into adultho o d

. She would like t o even tual ly reunit e with Della , although she does not know when or if that w il l be possi b le.20 T urning to any evi dence of an improper parent

- child relat ionship , the record
reflects that C.C. has struggled to parent effec tively for years

. See, e.g ., In re S.A ., N o. 0 4

- 17

- 0057 1

- CV, 2018 WL 521626, at *6 (Tex. App

. — San Anto nio Jan. 24, 2 018 , no p e t. ) (mem. op. ) (listing prior Department involvement as evidence of i mproper relationship) ; In r e M.L.C ., No. 04

- 17

- 00459

- CV, 2017 WL 6597828, at *8 (Tex. App.

— Austin Dec. 27, 2017 , pet

. denied ) (mem. op.) (same ) . In addi tion, the Depar tment ’ s e xhibits i n clude evidence that at intake
C.C. was rarely home, would l eave the home to use methamphetamines , and had not served as
Della ’ s primary caregiver in some time. See Latham v. Texas D ep ’ t of F a m
. & Protective Serv s. , 177 S. W.3d 341, 349 (Tex. App

. — Houston [1st Di st.] 2005, no pet.) ( holding recidi vist drug use to constitute evidence of improper parent

- chi ld relationship).
Final ly, Holley requires that we con sider any excuses for C.C. ’ s act s and
omissions

. No one d is putes th at C.C. suffers from de p ressive and a n xi ety disorders that leave
her “ tearful ” and “ nervou s. ” Her psychol ogy asses sment rev e aled “ ove rt physical signs of tension and stress, such as sweat y palms, trembling hands, co mplaints o f irregular heartbea ts, and sh ortness of breath

. ” A n d while compro m is ed mental health may serve as an excuse for certain acts or omissions , see C.W. v. Texas Dep ’ t of Fam

. & Protect ive Servs ., No. 03

- 17

- 00890

- CV, 2018 WL 2709208, at *5 (Tex. App

. — Austin J une 6, 2018 , no pet. ) (mem. op

. ) , the testimony and e x hibits pres e nted to the associate judge reflect that C.C. has
mad e

— a t b e s t

— inc onsistent effor ts to address her mental health , a fact that tends to negate those
health i ssu es as any excuse for her conduct , s ee id

. See also A. J. R. v. T exas Dep ’ t of Fam

. & P rotective Ser v s ., No . 03

- 19

- 00661

- CV, 2020 WL 1174189, at *10 (Tex. App.

— Austin
Mar. 12, 2020 , no pet. ) (mem . op.) ( rejecting compromised mental health as an excuse whe re parent w as not “ seeking h elp ” and i ssues remained “ undertreat ed ” ); In re T.C ., No. 1 0

- 10

- 00207

- CV ,21 2010 W L 4983512, at *7 (Tex. App.

— Waco Dec. 1, 2010 , pet. denied ) (mem. op.) (rejecting diagno sis as excuse where parent “ did not acknowledge or deal with ” h ealth problems ) ; A.B ., 26 9 S.W.3d a t 129 (rejecting diagnosis as e xcuse where parent “ refused ” any treatm en t)

. For her part, C.C. blames her recent conduct on “ very unfortunate l uck ” that has left her “ crippled. ” Yet

w e are aware of no authority indicati ng tha t a general appeal to mi sfor t une will excuse c hoices
li ke the ones that C

. C. h a s made h ere. Tak en to gether and viewed in light most favor able to the termination decree, the
evidence supporting the Department ’ s position and the undispute d cont roverting evidence w o u l d

a l l o w a reasonable factfinder t o f orm a suff icie ntly firm belief or convic ti on that termination of C.C.’s parental rights is in Della’s best interest and therefore pr ovide legally sufficient support
for th e find ing to that ef fect

.

C
. Factual S u ffi ci ency In evaluating C.C. ’ s factual

- suff i ciency cha llenge, we must consider the evidence outlined in the previous section along with the remainder of the evidence

. See In re A.B ., 437 S.W. 3d 498, 506 (Tex. 2014)

. We must d o so in a neutral light, se e id

. at 506 n.8 , keepin g in
mind that C.C . c h allenges o nly the termination of h e r parental rights

— not the designation of
the Department as sol e managing conservator. With th at i n mind, and und er the relatively
unusual circumst a nces of this case, we cannot sa y the evid ence prese nted is factually suff icient

to support termination.
To b egi n with, C.C. ’ s testimony suggests that s he is the only one with a thorough

u ndersta nding of Della ’ s di agnosis , the r esulting d isab ilities , and the care Della requires. When
ask ed about Della ’ s n eeds, and in sharp cont rast to C. C. ’ s testimony, Jones re v ealed little or no22 familiarity with Della ’ s d iagnoses or their effects on daily life : “ She is diagnosed with

— I
believe it ’ s an

— it ’ s a chro mosomal deletion that results in her having, like, intellectual
disabilities , seizu re s on occ asion. ” She offered not hing more on the sub ject other than th at she
belie ved Della would require care well into adult hood

. C.C., meanwhile, explained in detail

e xactly how Della ’ s d iagno sis affects every day life . She testified about the seizur es , the
sp ecialists, the durable m edical equipment, th e scoliosis, the l ow mus cle t one, the difficulty walking, and the need for a modified diet. C.C. further testified tha t she had “ been to every doctor, eve ry specialist, everything with [Della]

. ” C.C. testified that she “ would really l ik e to still see [Della], ” that she would cooperate with the Department and the placement “ in any way ” she could, tha t she would lik e t o “ wat c h over [Della], ” and that she c ould “ make s ure ” Della ’ s special nee ds a re me t

. 7 By cont r a st , Jones admitted that she had never even me t Del la. Second, whil e the Department produced no evidence that Della had e ve r sustained physical injury or harm from C.C. ’ s acts o r omissions, it is undisputed that D ella sustaine d significant injur y shortl y after t h e De partment gaine d s o l e m a n a g i n g conservatorship. The Department ’ s e xhibit s in dicate that Della suffered a broken ankle follow ing placement in her first facility ; that she requi red specialized orthopedi c care to facilitate rehabilitatio n ; and t ha t Della was struggling to “ resume walking ” almost a year la ter, even with phy sical t herapy at
school and the assis tan ce of staff from he r new placem ent at the Hope House

. And i t was C.C.

— not the Department or the guardian a d litem

— that filed a m otion to m odify t h e te mporary orders

t hat u ltimately allowed Della to be transferred to the Ho pe House due to the injury . In addition,
C.C. testi fied that Della had gained weight since re moval and that the weight gain was i mpeding

7 For this reason, the decree ’ s provisions allowing conditional visitation with the child is not a substitute for the re tention of C.C. ’ s pa renta l r i ghts, even in the context of the agreed appoin tm ent o f the Departmen t as managing c onse rvator.23 Della ’ s mobility due to muscular w eakness caus ed by the chro mosomal defect. Thus, w ith respect to Della ’ s spec ial needs, the record reflects that Della ’ s health is better served by maintaining C.C. ’ s rights to her daughter

. See M.A.A ., 2021 WL 1134308 , at*36. ( “ Whol ly
lack ing from t he record is evidence that term ination of father ’ s parental rights would improve t he
outlook for M.A.A. ’ s needs. ” )

. Thi rd, we cannot over look the fact that the guardian ad litem disagreed with the Department ’ s re com mendatio n of term i nation. See Tex. Fa m. Code § 107.0 01(f) ( “ If the
guar dian ad lit em is not called as a witness, the court shall permit the guardian ad litem to testify
in the narrative. ” ) ; In re C.R. , No. 07

- 19

- 00009

- CV, 2019 WL 1648265, at *2 , 8 ( Tex. A pp.

— Amar illo Apr. 16, 2019 , pet . denied ) (mem. op.) (consid ering re comme ndation regarding best

interest analysis even where recommendation was not entered into ev idence ) ; In re Croft , 560 S.W.3d 379 , 382 (Tex. App.

— Houston [14th Dist.] 2018 , no pet. ) ( same) ; In re O.N.H ., 4 01 S.W.3d 681 , 688 (Tex

. App.

— San Antonio 2 013 , n o pet

. ) (same); In re Z.C ., 280 S.W.3d 470, 476 (Tex. App.

— Fort Worth 2009 , pet. denied ) (same)

. But see In re A.A.E ., No. 05

- 18

- 0 0210

- CV, 2019 WL 1552450, at *4 (Tex. App.

— Dallas A pr. 10, 2019 , n o p e t

. ) ( m em. op
. ) (r ef using to c onsider recom mendati on not ente red into evidence ). In her

rec ommendation , t he guardian a d lite m told the associate judge that the placement facili ty had a good relationship with C.C., that Della an d C.C. have a “ st rong bond, ” that she “ want [ s ] m om to b e a ble to visit with [De lla], ” and that she did not believe the De partmen t had “ a place for [Della] to be adopted. ”
Fo urth , we note that

— given the conservatorship propose d a s an alternati ve to termination

— the Department ’ s arg uments fo r termination are not av ailing. Nearly all of the Depar tment ’ s argumen t s at trial were pr edi cated on a n assumption that Della would be at ri sk of24 harm if returned to C.C. ’ s care. Wh i l e test ifying, Jones poin ted to evidence that C.C. remained
in “ relapse ” and that she does not h ave “ sa fe, stable housing. ” But C.C. ’ s substan ce abuse and

unst able housing become less relevant if the Depar tme nt is named sole mana ging conservator.
S

e e M. D. v. Texas Dep ’ t of Fa m
. & Protective Se rvs ., No. 03

- 20

- 00531

- CV , 2021 WL 1704258,
at * 1 (Tex. Ap p.

— Austin Apr. 30, 2021 , n o pet. ) (m em. op. ) ( in ca se involvin g parent ’ s

un disputed hist ory of drug use and evide nce of ongoing “ pattern ” of substance abuse, rev ersing
termination o f parent ’ s rights but u pholding appointmen t of Depa r tment as perm anent mana ging conservator). And Jo n es co nced ed that Della is closely b onded to C.C., that C.C. had attended
visit ations w hen permitted , and that C.C. regularly sent supp lies for Della. Ind eed, t h e primary argument offere d in favor of termina tion

— as oppo sed to con servatorship alone

— is that it mi ght
be easier for t he Department to fi nd an adoptive home for Della if C.C. ’ s rights are terminated
imm ediately. But the Departmen t ’ s burden is not to prove what is most conv enient for the Depa rtmen t

— it is t o demo nstrate w h at arrangement best serves Della ’ s int erest

. S ee H olley , 544 S.W.2d a t 371

– 72

. Moreover, as of the date of trial, and n otwiths tanding t he long pend ency of the ca se, the Depar tment had ide ntified no prospec tive adoptive homes for Della. I n fact , Jones di d not deny that it might be diff icult to find such a home and that she could “ not say what exactly the chances would be

. ” And finally , on this record, we conclude the decree ’ s provisions allowing C.C.
continued visi tation a re not consi stent wit h the find ing that termination is in C. C. ’ s best interest

. The termination decree requires “ that [C.C.] have supervised vir tual or i n[

- ] person visits with [Della] to be supervised by the Department, if she drug test [s] consistently and i s negative. ” Yet

t he govern ing statutory scheme expressl y add resses the scope of post

- termination visitation , providing that a court may permit such vi sitation if the Department agrees and where “ the25 biological parent

. . . filed an affidavit of voluntar y relinquishment o f parental rights under
Section 161.103

. ” S ee Tex. F a m. Code § 161.2061

. Neither is the case here. Moreover, w hen

anno uncing this provision from the bench, the associate judge sa id to C.C., “ I'm not doing this for you; I'm doing it for the child , ” a n ap parent con cession that termination

— as i t is defined in
Texas

— is not in Della ’ s best interest

. S e e In r e D.L.W.W. , 617 S.W. 3 d at 81 ( r e f e r

r i n g t o termination as the sev e rance o f “ a n y r e l a t i o n s h i p
. . . w h a t s o e v e r ” )

. To summarize, given t he l e s s - r e s t r i c t i v e alterna tive of the Depar tment ’ s sole

m anag i ng conservatorship, there is insufficien t evidence to support the finding that t ermination is
in Della ’ s best inter est

. Therefore, c ognizant of the co n s titutional concerns related to parental
terminatio n, the c lear inst ructions from the Supreme Court of T exas that we st rictly scrutinize termination proceedings , the strong pr esumpt ion that preservati on of the parent

- child relationship
is in Della ’ s best i n tere st, and our obligation to consider all evidenc e equal ly, s ee L. C.L ., 599 S. W.3d at 89; In re D .D. M

. , No. 01

- 18

- 010 33

- CV, 2019 WL 29 39259, at *8 (Tex . App.

— Houston [1st D i st.] July 9, 2019, no pet.) (mem. op.) , we conclude that a re asonable factfinder

c ould not have formed a firm belief or conviction t hat ter m in ation o f C.C. ’ s parental rights is in
the D ella ’ s best int erest. Accordingly, becau se the Department did not meet its burd e n at tr ial,
we sustain C .C. ’ s factual

- sufficiency challenge

.

V. CONCLUSION
We re verse the decree ’ s provisions te rminating C

. C ’ s pa ren tal rights and remand
for a new tr ial o n the qu estion of termination

. Because they are not chall e n ged on appeal, we do
not reach the provisions appoint ing the Department as De lla ’ s sole managing conservator or the provisions terminating the pa re ntal right s of Della ’ s father. See T ex
. Fam . Cod e § 263. 4 0426 (outl i ning f indings necessary to support appoin t ment of non - parent managin g conservator in absence of termination of parent ’ s rights) ; In re J.A. J. , 243 S.W.3d 611, 615 (Tex. 2007) (holding tha t challenge to conservat orship “ was not s ub sum ed in her cha l lenge of the te rmination
decision ” where parent “ d i d not sp ecifically appea l ” the cons ervator ship or related findings)

. W e inst ruct the tri al co urt to commence the tria l no later than 180 days af te r our mand ate issue s
. See
Tex. R. A pp . P. 2 8.4(c ).

_ ___ _________ _

__ _____________________ _____ Edward Smith , Justice
Before Justices Baker, Kell y, and Smith

Con curring and Dissenting Opin ion b y Justice Baker Affirmed in Part; Rever sed and Remanded in Part
Fi le d: May 20, 2022