NO. 12-17-00334-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST OF

A.D., A.H. AND A.T.,

CHILDREN

§

§

§

APPEAL FROM THE 273RD 

JUDICIAL DISTRICT COURT

SABINE COUNTY, TEXAS

MEMORANDUM OPINION

C.T.T. appeals the termination of his parental rights. In seven issues, he argues that he was 

denied procedural due process, and challenges the legal and factual sufficiency of the evidence to 

support the order of termination. We reverse, render in part, and remand, in part.

BACKGROUND

A.M.1is the mother of A.D., A.H., and A.T. S.D.D.2is the father of A.D. and C.T.T. is the 

father of A.H. and A.T. On March 16, 2016, the Department of Family and Protective Services 

(the Department) filed an original petition for protection of A.D., A.H., and A.T., for 

conservatorship, and for termination of A.M.’s, S.D.D.’s, and C.T.T.’s parental rights. The 

Department was appointed temporary managing conservator of the children, A.M. was appointed 

temporary possessory conservator of the children with limited rights and duties, and S.D.D. was 

appointed temporary possessory conservator of A.D. with limited rights and duties.

 

1 The trial court found, by clear and convincing evidence, that A.M. executed an unrevoked or irrevocable 

affidavit of relinquishment of parental rights to A.D., A.H., and A.T. as provided by Chapter 161, Texas Family Code. 

The trial court also found that termination of the parent-child relationship between A.M. and the children was in the 

children’s best interest. Therefore, the trial court ordered that the parent-child relationship between A.M., A.D., A.H., 

and A.T. be terminated. The mother is not a party to this appeal.

2The trial court found that appointment of a parent as managing conservator would not be in the best interest 

of A.D. and appointed a non-parent as permanent managing conservator of the child. The father, S.D.D., was 

appointed possessory conservator of A.D. with possession and access as agreed between the non-parent managing 

conservator and the father. 
2

At the conclusion of the trial on the merits, the trial court found that C.T.T. is, and hereby 

adjudicated him to be, the father of A.H. and A.T. Further, the trial court found, by clear and 

convincing evidence, that C.T.T. had engaged in one or more of the acts or omissions necessary 

to support termination of his parental rights under subsections (D), (E), (N) and (O) of Texas 

Family Code Section 161.001(b)(1). The trial court also found that termination of the parent-child 

relationship between C.T.T, A.H., and A.T. was in the children’s best interest. Based on these 

findings, the trial court ordered that the parent-child relationship between C.T.T., A.H., and A.T. 

be terminated. This appeal followed.

TERMINATION OF PARENTAL RIGHTS

Involuntary termination of parental rights embodies fundamental constitutional rights. 

Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53 

S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ 

denied). Because a termination action “permanently sunders” the bonds between a parent and 

child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 

1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.).

Section 161.001 of the family code permits a court to order termination of parental rights 

if two elements are established. TEX. FAM.CODE ANN. § 161.001 (West Supp. 2018); In re J.M.T., 

39 S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have engaged in any 

one of the acts or omissions itemized in the second subsection of the statute. TEX. FAM. CODE 

ANN. § 161.001(b)(1) (West Supp. 2018); Green v. Tex. Dep’t of Protective & Regulatory Servs., 

25 S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second, 

termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(2) (West 

Supp. 2018); In re J.M.T., 39 S.W.3d at 237. Both elements must be established by clear and 

convincing evidence, and proof of one element does not alleviate the petitioner’s burden of proving 

the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d 

at 237. 

The clear and convincing standard for termination of parental rights is both constitutionally 

and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911 S.W.2d at 439. Clear 

and convincing evidence means “the measure or degree of proof that will produce in the mind of 

the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” 
3

TEX. FAM. CODE ANN. § 101.007 (West 2014). The burden of proof is upon the party seeking the 

deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240. 

STANDARD OF REVIEW

When confronted with both a legal and factual sufficiency challenge, an appellate court 

must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619 

S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no 

pet.). In conducting a legal sufficiency review, we must look at all the evidence in the light most 

favorable to the finding to determine whether a reasonable trier of fact could have formed a firm 

belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We 

must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact 

finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved 

or found incredible. Id. 

The appropriate standard for reviewing a factual sufficiency challenge to the termination 

findings is whether the evidence is such that a fact finder could reasonably form a firm belief or 

conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). 

In determining whether the fact finder has met this standard, an appellate court considers all the 

evidence in the record, both that in support of and contrary to the trial court’s findings. Id. at 27-

29. Further, an appellate court should consider whether disputed evidence is such that a reasonable 

fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 

96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the witnesses and 

the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. 

App.–Houston [1st Dist.] 1997, pet. denied). 

TERMINATION UNDER SUBSECTIONS 161.001(b)(1)(D), (E), (N), AND (O)

In his second, third, fifth, and sixth issues, C.T.T. argues the evidence is legally and 

factually insufficient to terminate his parental rights pursuant to subsections (D), (E), (N), and (O) 

of Texas Family Code Section 161.001(b)(1). We will address each subsection in turn.

Subsection (D)

The court may order termination of the parent-child relationship under subsection (D) if 

the court finds by clear and convincing evidence that the parent has knowingly placed or 
4

knowingly allowed the child to remain in conditions or surroundings which endanger the physical 

or emotional well-being of the child. TEX. FAM. CODE ANN. § 161.001(1)(D) (West Supp. 2018).

“Endanger” means to expose to loss or injury or to jeopardize. Tex. Dep’t of Human Svcs. v. 

Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re D.M., 58 S.W.3d 801, 811 (Tex. App.—Fort Worth 

2001, no pet.). It is not necessary that the endangering conduct be directed at the child or that the 

child actually suffers injury. Boyd, 727 S.W.2d at 533; In re J.J., 911 S.W.2d at 440. 

Under subsection (D), the relevant time frame to determine whether there is clear and 

convincing evidence of endangerment is before the child was removed. Ybarra v. Tex. Dep’t of 

Human Servs., 869 S.W.2d 574, 577 (Tex. App.—Corpus Christi 1993, no pet.). Subsection (D) 

addresses the child’s surroundings and environment. In re N.R., 101 S.W.3d 771, 775–76 (Tex. 

App.—Texarkana 2003, no pet.). The Department must show that the child’s living conditions 

pose a real threat of injury or harm. In re N.R., 101 S.W.3d at 776; Ybarra, 869 S.W.2d at 577. 

Further, there must be a connection between the conditions and the resulting danger to the child’s 

emotional or physical well-being. Ybarra, 869 S.W.2d at 577–78. Finally, several Texas courts 

have recognized that the possibility of a parent’s incarceration can negatively impact a child’s 

living environment and well-being and may be sufficient to show endangerment. In re S.M.L., 

171 S.W.3d 472, 479 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“When parents are 

incarcerated, they are absent from the child’s daily life and are unable to provide support, and 

when parents like appellant repeatedly commit criminal acts that subject them to the possibility of 

incarceration, that can negatively impact a child’s living environment and emotional well-being”); 

In re C.L.C., 119 S.W.3d 382, 393 (Tex. App.—Tyler 2003, no pet.); In re S.D., 980 S.W.2d 758, 

763 (Tex. App.—San Antonio 1998, pet. denied). 

In this case, the Department failed to present any evidence that C.T.T. was aware that A.H. 

and A.T. were being placed in a dangerous environment or living conditions. Ethel Rogers, the 

Department’s caseworker, testified that C.T.T. has been incarcerated for the “entire duration” of 

the case involving A.H. and A.T. She stated that C.T.T. was incarcerated before the case began 

and was not involved with, or the reason for, the children’s removal from their home. Nor did she 

agree that C.T.T. placed the children “in a position of danger.” 

As noted above, involuntary termination proceedings implicate fundamental constitutional 

rights. See Vela, 17 S.W.3d at 759; In re J.J., 911 S.W.2d at 439. Due to the magnitude and 

permanence of termination of parental rights, the Department’s burden of proof is by clear and 
5

convincing evidence. See TEX. FAM. CODE ANN. § 161.001(b)(1). Here, the Department failed to 

meet that burden with respect to subsection (D). Moreover, in the absence of other endangering 

conduct, C.T.T.’s incarceration is insufficient to support termination under subsection (D). See In 

re S.M.L., 171 S.W.3d at 478 (noting imprisonment, alone, does not suffice to support termination 

under subsection (D)). Reviewing all of the evidence in the light most favorable to the finding, 

we conclude a reasonable factfinder could not have formed a firm belief or conviction that C.T.T. 

knowingly placed or knowingly allowed the children to remain in conditions or surroundings 

which endangered their physical or emotional well-being, and therefore, the evidence of 

endangerment under subsection (D) is legally insufficient. See id. § 161.001(b)(1)(D); In re 

J.F.C., 96 S.W.3d at 266. Because the evidence is legally insufficient to support the trial court’s 

finding that C.T.T. violated subsection (D) of Texas Family Code Section 161.001(b)(1), we do 

not address the factual sufficiency of the evidence. Accordingly, we sustain C.T.T.’s second issue.

Subsection (E)

The court may order termination of the parent-child relationship under subsection (E) if it 

finds by clear and convincing evidence that the parent has 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(b)(1)(E) (West Supp. 2018). Subsection (E) 

requires us to look at the parent’s conduct alone, including actions, omissions, or the parent’s 

failure to act, and termination must be based on more than a single act or omission. In re D.J., 

100 S.W.3d 658, 662 (Tex. App.—Dallas 2003, pet. denied); In re D.M., 58 S.W.3d at 811; In re 

D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied). A voluntary, deliberate, 

and conscious “course of conduct” by the parent that endangers the child’s physical and emotional 

well being is required. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at 634. Further, the 

conduct may occur before the child’s birth and both before and after the child has been removed 

by the Department. Walker v. Tex. Dep’t of Family & Protective Srvs., 312 S.W.3d 608, 617 

(Tex. App.—Houston [1st Dist.] 2009, pet. denied). 

Imprisonment alone does not constitute an endangering course of conduct but is properly 

considered with respect to endangerment. Boyd, 727 S.W.2d at 533–34. Though imprisonment 

of a parent is insufficient, standing alone, to constitute “engaging in conduct which endangers the 

emotional or physical well-being of the child,” it is a factor to consider on the issue of 

endangerment. See id.; In re M.D.S., 1 S.W.3d at 199. 
6

In this case, the Department presented evidence of C.T.T.’s convictions and current 

imprisonment. The Department stated that C.T.T. had at least twenty-four criminal charges made 

against him from 1998 to 2013, but Rogers did not know if he was convicted of any of those 

charges. In February 2013, C.T.T. was convicted of aggravated assault, a second degree felony, 

and assault against a public servant, a third degree felony, and was sentenced to eight years of 

imprisonment for both offenses, to run concurrently. At the time of trial, C.T.T. was in prison and 

had been for almost five years. Further, Rogers agreed that C.T.T. did not engage in conduct or 

knowingly place the children with persons who engaged in conduct that endangered the children 

because he was in prison. 

There was some evidence that C.T.T. may have committed domestic violence. Rogers 

testified that there was an “entry” of violence between C.T.T. and A.M. Tassie Ferrell, the 

Department caseworker, testified that A.D. told her about “violence” between A.M. and C.T.T. 

and drug use. Ferrell stated that any incident occurred before the children were removed.

However, neither caseworker offered additional elaboration or evidence on the “violence” or drug 

use.

As noted above, involuntary termination proceedings implicate fundamental constitutional 

rights. See Vela, 17 S.W.3d at 759; In re J.J., 911 S.W.2d at 439. Due to the magnitude and 

permanence of termination of parental rights, the Department’s burden of proof is by clear and 

convincing evidence. See TEX. FAM. CODE ANN. § 161.001(b)(1). Here, the Department failed to 

meet that burden with respect to subsection (E). Specifically, C.T.T.’s imprisonment, alone, is 

insufficient to constitute an endangering course of conduct. See Boyd, 727 S.W.2d at 533–34; In 

re M.D.S., 1 S.W.3d at 199. Further, the evidence of C.T.T.’s possible “violence” and drug use, 

without any additional facts or elaboration, does not constitute an endangering “course of 

conduct.” See In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at 634. Reviewing all of the 

evidence in the light most favorable to the finding, we conclude a reasonable factfinder could not 

have formed a firm belief or conviction that C.T.T. engaged in conduct, or knowingly placed the 

children with persons who engaged in conduct, that endangered their physical or emotional well 

being, and therefore, the evidence of endangerment under subsection (E) is legally insufficient. 

See id. § 161.001(b)(1)(E); In re J.F.C., 96 S.W.3d at 266. Because the evidence is legally 

insufficient to support the trial court’s finding that C.T.T. violated subsection (E) of Texas Family 
7

Code Section 161.001(b)(1), we do not address the factual sufficiency of the evidence. 

Accordingly, we sustain C.T.T.’s third issue.

Subsection (N)

The court may order termination of the parent-child relationship under subsection (N) if it 

finds by clear and convincing evidence that the parent has constructively abandoned the child who 

has been in the permanent or temporary managing conservatorship of the Department 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. TEX.

FAM. CODE ANN. § 161.001(b)(1)(N) (West Supp. 2018). If the evidence is legally insufficient on 

any one of these elements, the termination finding cannot be sustained. See In re D.T., 34 S.W.3d

at 633. Moreover, incarceration does not render subsection (N) inapplicable simply because a 

parent is incarcerated. In re D.S.A., 113 S.W.3d 567, 574 (Tex. App.—Amarillo 2003, no 

pet.).

In his brief, C.T.T. does not dispute the first or third elements of subsection (N). However, 

he disputes the second element, specifically, that he has not regularly visited or maintained 

significant contact with the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N) (ii). The 

evidence at trial showed that C.T.T. maintained contact with Rogers through letters, asking about 

the children. Rogers, in turn, sent him letters and photographs of the children. In her opinion, 

“from where [C.T.T.’s] at, that’s about all you can do.” In the Department’s permanency reports, 

it acknowledged that C.T.T. was incarcerated and, thus, no visitation with the children was 

organized. Moreover, the children, ages five and six, are described as being autistic, with severe 

delays and impairments. Incarceration does not render it impossible for the parent to maintain 

significant contact with the child. Id. As such, C.T.T. maintained contact with the Department’s 

caseworker, seemingly pursuing a relationship with his special needs children as much as possible 

while incarcerated. See id. 

Therefore, reviewing all of the evidence in the light most favorable to the finding, we 

conclude a reasonable factfinder could not have formed a firm belief or conviction that C.T.T. 

constructively abandoned the children because he did not maintain significant contact with the 

children and, therefore, the evidence of abandonment under subsection (N) is legally insufficient. 

See id. § 161.001(b)(1)(N); In re J.F.C., 96 S.W.3d at 266. Because the evidence is legally 
8

insufficient to support the trial court’s finding that C.T.T. violated subsection (N) of Texas Family 

Code Section 161.001(b)(1), we do not address the factual sufficiency of the evidence. 

Accordingly, we sustain C.T.T.’s fifth issue.

Subsection (O)

The court may order termination of the parent-child relationship under subsection (O) if it 

finds by clear and convincing evidence that the parent 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 for not less than nine months as a result of the child’s removal from the parent for the 

abuse or neglect of the child. TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (West Supp. 2018). 

Generally speaking, Texas courts have taken a rather strict approach to subsection (O)’s 

application. See, e.g., In re P.N.M., No. 11-08-00080-CV, 2009 WL 714190, at *3–4, (Tex. 

App.—Eastland Mar. 19, 2009, no pet.) (mem. op.). Subsection (O) looks only for a parent’s 

failure to comply with a court order, without reference to quantity of failure or degree of 

compliance. See In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.). It does not 

provide a means of evaluating partial or substantial compliance with a plan. Id. Subsection (O) 

also does not “make a provision for excuses” for the parent’s failure to comply with the family 

service plan. Id. (quoting In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet. 

denied)). The burden of complying with a court order is on the parent, even if the parent is 

incarcerated. See Thompson v. Tex. Dep’t of Family & Protective Servs., 176 S.W.3d 121, 127 

(Tex. App.—Houston [1st Dist.] 2004, pet. denied) (overruled on other grounds); K.C. v. Tex. 

Dep’t of Family & Protective Servs., No. 30-17-00184-CV, 2017 WL 3585255, at *2 (Tex. 

App.—Austin Aug. 17, 2017, no pet.) (mem. op.).

C.T.T.’s final family plan of service required him to (1) maintain contact with his current 

caseworker or supervisor; (2) obtain and maintain stable housing and legal employment; (3) 

complete a psychological evaluation and follow any recommendations; (4) complete DNA testing 

regarding A.H.; (5) be supportive of A.T.’s and A.H.’s placement; (6) follow all written or verbal 

instructions ordered by the trial court; (7) notify the Department caseworker if his contact or 

location information changes within twenty-four hours; and (8) once he is released from prison, 

contact the Department caseworker to set up services. At trial, Rogers stated that C.T.T. 

maintained contact with the Department, his contact or location information has not changed, and 
9

he had no services at that time. Rogers stated that C.T.T. never told her whether he was supportive 

of the children’s placement nor has she received any written or verbal instructions from the trial 

court. Finally, she said that C.T.T. has done everything in his service plan that he could do while 

incarcerated. 

The evidence shows that the only conditions of the service plan that C.T.T. may not have 

complied with were the requirements that he obtain and maintain stable housing and legal 

employment, and obtain a psychological evaluation. The record contains some evidence that he 

could not have complied with these requirements. Rogers testified that C.T.T. would not be able 

to obtain and maintain stable, safe, and appropriate housing and legal employment while 

incarcerated. In response to the question of whether C.T.T. completed a psychological evaluation 

while in prison, Rogers stated that she “never know[s] what [ ] prisons offer. They all have 

different things.” She also testified that C.T.T. complied with his service plan “as far as he is able 

to under the circumstance,” presumably recognizing the limits of his incarceration.

From this evidence, the trial court could have determined that C.T.T. failed to complete his 

service plan because he did not obtain housing, employment, and a psychological evaluation. 

Therefore, we hold that the evidence, viewed in the light most favorable to the trial court’s finding, 

was sufficiently clear and convincing that a reasonable trier of fact could have formed a firm belief 

or conviction that C.T.T. failed to comply with the provisions of a court order that specifically 

established the actions necessary for him to obtain the return of the children. See In re J.F.C., 96 

S.W.3d at 266. Thus, we conclude that the evidence is legally sufficient to support termination 

under subsection (O) of Texas Family Code Section 161.001(b)(1).

However, we must determine if the evidence is factually sufficient to support termination. 

First, we note that incarceration is not a legal excuse or defense to a parent’s failure to comply 

with a service-plan order. See K.C., 2017 WL 3585255, at *2. A parent’s incarceration is a fact 

that the factfinder may consider in determining compliance under subsection (O). See In re 

S.M.R., 434 S.W.3d 576, 584 (Tex. 2014) (“[W]hether a parent has done enough under the familyservice plan to defeat termination under subpart (O) is ordinarily a fact question.”); In re A.J.L., 

No. 04-14-00013-CV, 2014 WL 4723129, at *5 (Tex. App.–San Antonio Sept. 24, 2014, no pet.) 

(mem. op.) (holding that record did not support termination where evidence showed that, “up until 

the time Mother was incarcerated for a violation of her probation, she was in compliance with her 

service plan” and no evidence was presented that services were available to mother while 
10

incarcerated). Further, involuntary termination of parental rights embodies fundamental 

constitutional rights. See Vela, 17 S.W.3d at 759. Due to the magnitude and permanence of 

termination of parental rights, the Department’s burden of proof is by clear and convincing 

evidence. See TEX. FAM. CODE ANN. § 161.001(b)(1). 

From the evidence discussed above, Rogers recognized that C.T.T. could not obtain stable 

housing or legal employment while incarcerated. She also did not know if the prison offered the 

opportunity for C.T.T. to obtain a psychological evaluation. Rogers testified that C.T.T. complied 

with his service plan “as far as he [was] able to under the circumstance.” We note that the service 

plan does not require C.T.T. to work services until after he is released from prison. No such

provision was indicated in the service plan’s requirement for housing, employment, or a 

psychological evaluation. We find it unreasonable for C.T.T. to be required to satisfy these 

provisions from prison, recognizing the impossibility of him being able to obtain housing, 

employment, or a psychological evaluation while still incarcerated. From this evidence, we 

conclude that a reasonable fact finder could not have formed a firm belief or conviction that C.T.T. 

failed to comply with the provisions of a court order that specifically established the actions 

necessary for him to obtain the return of the children. See In re C.H., 89 S.W.3d at 25. Therefore, 

we hold that the evidence is factually insufficient to support the trial court’s finding that C.T.T. 

violated subsection (O). See id. § 161.001(b)(1)(O); In re J.F.C., 96 S.W.3d at 266. Accordingly, 

we sustain C.T.T.’s sixth issue.

BEST INTERESTS OF THE CHILD

In his seventh issue, C.T.T. argues the evidence is legally and factually insufficient to 

support a finding that termination of his parental rights is in the children’s best interest. In 

determining the best interest of the child, a number of factors have been considered, including (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; (6) the 

plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of 

the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any

excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 

1976).
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The family code also provides a list of factors that we will consider in conjunction with the 

above-mentioned Holley factors. See TEX. FAM. CODE ANN. § 263.307(b) (West Supp. 2018). 

These include (1) the child’s age and physical and mental vulnerabilities; (2) the magnitude, 

frequency, and circumstances of the harm to the child; (3) the results of psychiatric, psychological, 

or developmental evaluations of the child, the child’s parents, other family members, or others 

who have access to the child's home; (4) whether there is a history of substance abuse by the child’s 

family or others who have access to the child’s home; (5) the willingness and ability of the child’s 

family to seek out, accept, and complete counseling services and to cooperate with and facilitate 

an appropriate agency’s close supervision; (6) the willingness and ability of the child’s family to 

effect positive environmental and personal changes within a reasonable period of time; (7) whether 

the child’s family demonstrates adequate parenting skills; and (8) whether an adequate social 

support system consisting of an extended family and friends is available to the child. See id. § 

263.307(b)(1), (3), (6), (8), (10), (11), (12), (13).

The evidence need not prove all statutory or Holley factors in order to show that 

termination of parental rights is in a child’s best interest. See Holley, 544 S.W.2d at 372; In re 

J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.–Houston [14th Dist.] 2003, no pet.). In other words, the 

best interest of the child does not require proof of any unique set of factors nor limit proof to any 

specific factors. In re D.M., 58 S.W.3d at 814. Undisputed evidence of just one factor may be 

sufficient in a particular case to support a finding that termination is in the child's best interest. In 

re M.R.J.M., 280 S.W.3d 494, 507 (Tex. App.—Fort Worth 2009, no pet.). But the presence of 

scant evidence relevant to each factor will not support such a finding. Id. And the fact that a 

parent is imprisoned does not automatically establish that termination of his parental rights is in 

the child’s best interest. In re S.R.L., 243 S.W.3d 232, 236 (Tex. App.—Houston [14th Dist.] 

2007, no pet.) (citing In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, 

pet. denied)).

Analysis

The evidence discussed above shows that C.T.T. was incarcerated beginning in February 

2013, before the children were removed from the home, and has been incarcerated throughout this 

case. C.T.T. had also maintained contact with the Department caseworkers and complied with his 

service plan to the extent that he was able to do so while in prison. 
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Regarding the children, they are described as being autistic, having severe disabilities, and 

requiring 24/7 supervision. The Department noted in a permanency report that A.H. and A.T. were 

happy children and that A.H. was “somewhat non-verbal.” Both children had severe intellectual 

delays, social deficits, language impairments, and sensory processing issues. The Department 

stated that A.H. and A.T. would need some form of adult supervision throughout their lifetime. At 

trial, Rogers stated that both children were still in diapers, were currently living at Mission Road 

in San Antonio, akin to a residential treatment facility, and doing well. Rogers stated that the 

children have their “little routine,” and as long as it is not interrupted, “they’re good.” Rogers 

believed that someone would be able to adopt both children with their special needs. 

Regarding C.T.T., he did not appear at trial because he did not want to miss his position in 

class in order to receive his associates degree in air conditioning and heating. Rogers is concerned 

that C.T.T. does not have a support system when he is released from prison. Nor has he told her 

where he would live or how he would take care of the children if he were released from prison.

According to Rogers and Ferrell, they are mostly concerned about C.T.T.’s criminal record and 

his ability to take care of the children. Rogers was also concerned that it would take months or a 

“long period of time” for C.T.T. to work a service plan and have the children placed with him.

Ferrell testified that it would not be impossible for C.T.T. to take care of the children, but he would 

have to educate himself on how to take care of them once he is released. Rogers and Ferrell 

believed it was in the best interest of the children for C.T.T.’s parental rights to be terminated. 

According to the trial transcript, the entire testimony of the two witnesses for the 

Department comprised a mere twenty-three pages. There was no evidence regarding the potential 

adoptive home for the children, C.T.T.’s parenting abilities, the programs to assist C.T.T., or the 

stability of C.T.T.’s home or the potential placement for the children. As noted in Ferrell’s 

testimony, she and Rogers’s only concern appeared to be C.T.T.’s criminal record, and the 

possibility that he would not be able to take care of two special needs children. Neither expressed 

any concern that C.T.T. may harm the children because of his criminal record or that he could not 

learn to take care of the children, only that it may take him a long time to do so. 

Therefore, viewing the above evidence relating to the statutory and Holley factors in the 

light most favorable to the trial court’s best interest finding, we conclude that a reasonable fact 

finder could not have formed a firm belief or conviction that termination of C.T.T.’s parental rights 

is in the children’s best interest, and therefore, the evidence of best interest under Section 
13

161.001(b)(2) is legally insufficient. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.F.C., 96 

S.W.3d at 266. We note the presence of scant evidence relevant to each factor to support the trial 

court’s finding. See In re M.R.J.M., 280 S.W.3d at 507. Because the evidence is legally 

insufficient to support the trial court’s finding that termination of C.T.T.’s parental rights is in the 

best interest of the children, we do not address the factual sufficiency of the evidence. Accordingly, 

we sustain C.T.T.’s seventh issue.

CONCLUSION

Having sustained C.T.T.’s second, third, fifth, sixth, and seventh issues, we reverse that 

portion of the trial court’s order terminating C.T.T.’s parental rights, render partial judgment 

denying the Department’s original petition to the extent that it sought termination of C.T.T.’s 

parental rights to A.H. and A.T. under subsections (b)(i)(D), (E), and (N), and subsection (b)(2), 

and remand the case for further proceedings consistent with this opinion.3

JAMES T. WORTHEN

Chief Justice

Opinion delivered November 28, 2018.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)

 

3 Because we have concluded that the evidence is legally insufficient to support termination of C.T.T.’s 

parental rights under subsections (b)(1)(D), (b)(1)(E), (b)(1)(N), and subsection (b)(2), and factually insufficient to 

support termination of C.T.T.’s parental rights under subsection (b)(1)(O), we need not address his first issue (denial 

of procedural due process) or his fourth issue (whether termination under subsections (N) and (O) pertained to him). 

See TEX. R. APP. P. 47.1.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 28, 2018

NO. 12-17-00334-CV

IN THE INTEREST OF A.D., A.H. AND A.T., CHILDREN

Appeal from the 273rd District Court 

of Sabine County, Texas (Tr.Ct.No. 13,212)

THIS CAUSE came to be heard on the appellate record and the briefs filed 

herein, and the same being considered, because it is the opinion of this court that there was error 

in the termination order of the court below, it is ORDERED, ADJUDGED and DECREED by this 

court that the termination order be reversed, partial judgment denying the Department’s original 

petition to the extent that it sought termination of C.T.T.’s parental rights to A.H. and A.T. be 

rendered, and the cause remanded to the trial court for further proceedings in accordance with 

the opinion of this court; and that this decision be certified to the court below for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.