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

NO. 03
- 21
- 00324
- CV

A. W. , Appellant

v. Texas Department of Family and Protective Services , Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 318,020
- B , THE HONORABLE CHRISTOPHER L. CORNISH , JUDGE PRESIDING

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N

Simply put , the question before this Court is not whether Son and Daughter should return to Mother ’ s household, but w hether the Department met its burden to show that it is in Son ’ s and Daughter ’ s best interest to have no relationship with Mot her at all. Based on the clear directives of the Supreme Court of the United States and the Supreme Court of Texas, and based on the evidence present ed at trial, I cannot conclud e t hat the Department met that burden.
For the reasons set forth below, I would re verse the portion of the decree terminating Mother ’ s parental rights and remand the case

. And b ecause they are not challenged on appeal, I would not reach the decree ’ s pro v i si ons addressing conservatorship of the children or Fat her ’ s rights

. I therefore respectfully dissent in part from the majority ’ s affirmance of the district court ’ s final decree terminating Mother ’ s rights to Son and Daughter.2 I. BACKGR O U ND 1
In June of 20 2 0 , shortly after Daughter was born , the Department removed Son and Daughter from Mother and Father , who lived together and had been in a r elationship for six
years . At birth, Daughter ’ s meconium tes ted positive for cocaine and can n abi noids , a nd Mother ’ s uri ne showed traces of cannabinoids

. Daughter showed symptoms of drug withdrawal, including tremors and seizures

. Mother had previously relin quished her rights to three other children (Siblings 2 ) around 2014, after the Department beca me in volved due t o repo rted drug use by Mother

. The Siblings were adopted b y their ma ternal grandpar ents. In addition, in 2016 t he Department had investigated reports of Mother ’ s alleged drug use during her preg nancy with Son and her alleged failure to s eek adequate pren a tal c are during that preg n ancy . Those reports were ultimately “ ruled out ” when Son tested neg ative for any substances at birth , and th e case was cl osed when Mother completed her services. At intake in 2020 , the Depar tment described S on as somewhat “ ove r weigh t ” and having “ listening issues ” but ultimately as being a “ happy an d sweet kid ” who “ get [ s ] along with his siblings and other kids his age. ” The Department described Daughter as being “ a sweet and qui et ba by. ” The Departmen t reported that both ch i l dren “ appear[ed] to have a good positive relationship in the fam ily ” and that neither child disp layed signs o f developmental de lay or be havio ral issues. The Department described Mother and Father as having stabl e and appropriate h o using, stable employme n t , and no history of domestic violence. Department

r esearch revealed that Mother had no cri minal h istory but that Father had served fifty days fo r

1 This section is taken from undispu ted aspects of the record.

2 Father offered un disputed test im ony that he did n ot father the Siblings and that Son and Daughter are his only children.3 possess ion of a p rohibited weapon in 2009 and served four years f or burglary of a ha b itation
in 2014

. Fol l o wing remov al in 2020 , Son and Daughter were initially placed with t heir

m aternal gran dparen ts

— the S iblings ’ adoptive parents

— who w anted all five children to remain together. That place ment failed when Grandfat he r “ started contacti n g the Department askin g for [ Son] to be removed because he could not care for him. ” Grandfathe r also complained that it

w as too difficult for his household to support all five children. The Department then placed Son and D a ughter toge ther with an aunt. That placement was sub s e quent ly disrupted when a police report revealed that Aunt had left Son and Daughter un att ended in a vehicle at a local
grocery store. After the second familial placement was d isrupted and no other familial plac ement was identifie d , the Department place d Son and Daughter with a non

- famil ial foster family

. That placement f ailed when “ [t] he fo ster mom could not handle [Son ’ s] behaviors

. ” In March of 2021, Son and Daughter were placed with a new foster family that i ntended to adopt th e children. Son and D a ughter remained the re at the time of trial, although a month before tri al the f oster fami ly contacted the Department and indicated that they had “ changed their minds ” and no longer wished to adopt the children. At trial, the D epartm e nt indicated that it s revised plan for the children would be temporary placement with a n as - yet un identified legal

- risk foster home until an adoptive family could be found

.

II. TRIAL The parties tried the case to the bench in May remotely in accord ance with the

e m e rgency order i n place at the time

. See Thirt y - Sixt h Emergenc y O rde r Regardin g CO VI D

- 1 94 State of Di saster , 629 S.W.3d 897 , 897

– 98 (Tex. 2021) (order)

. Four witnesses testif ied at trial: Mother, Father, case work e r Jasmine App l i n, and guardian ad litem Cathy Rothas.

A. Applin Ap plin testified fi rst and briefly described the circumsta nces leading to removal and the history of the placements. When asked about the current placement, she responded:

Overall [,] it ’ s going well. T h e re have been some issues with [Son] as f ar as, like, his behaviors; ho wever, they do have him in therapy right now, he is in school and, you know, definitely trying to work with him in regards to, you know, h is behaviors and getting him

— or giving him tha t structure, home environme nt that he needs.
Applin des cribed the children as “ thrivi ng ” and having “ come a long way ” and noted that Father had agreed wit h that as sessme nt. She then explained that the Departmen t ’ s “ current perman ency plan ” f o r S on and Dau g ht er is to “ see k a le gal [

- ] risk fost er home ” and ultim ately arrange an

“ unrelated ado ption. ” She conceded, however, that the Department had not “ officially made a request for a legal [

- ] ri sk home ” and had not “ truly beg[u]n to s earch for a l e gal [

- ] risk fo s ter h ome , ” notwithstanding the current foster family ’ s stated unwilling ness to continue as a long

- term placement. Applin then described Mother ’ s and Father ’ s family service plans, both of which were admitte d into evidence. Mother ’ s plan required her n ot to use an y illegal or illicit drugs, to undertake a d rug and alcohol asse ssment , to active ly participate in counseling and parenting classes , to submit to weekly drug testing, t o pay child support, and to ma intain employment and

a safe, c l ean, appropri a te ho me. Father ’ s plan required him not to participate in crimin al activiti es, not to use an y illegal or illicit drugs, to undertake a psychologica l evaluation , to5 actively participate in counseling and parent ing classes , to submit to weekl y drug testing , t o p ay child support, and to maintain employment and a safe, clean, appropr iate home. When asked about compl iance with the plans, Applin said that both Mother and Father had completed “ outpatient rehab ” and “ were on the road to a monitore d return ” when they failed drug tests on February 8 and March 30, 2021, w ith both p arents t esting positive f or cocaine metabolites. 3 She reported that Father was seeking additional outpatient therapy and that Mother had recen tly completed a thirty

- day inp at ient program

. She t estified that Father ’ s tests had all come back nega tive since the posi tive test in Marc h. S he testified that she wa s uncertain about Mother ’ s recent history because the Department did not seek or obt ain any records from the i npat ie nt facility but a cknow ledged that Mother had tested negative from March unt il her admissio n to that program

. Cou nsel for Mother pressed Applin on this point:
Q. Have you been able to access any of the records from the rehab facility? A. No, sir. Not ye t.

. . . Q. Oka y . I u nderstand. But if the judge terminates their rights t oday, there probably isn ’ t much need for you to do that; is that what you ’ re thinking? A. Yes, sir.

Other than the dr ug - related provisions , Appl in did not te stify as to Mother ’ s compliance with other re quirements of the family service plan. When asked whe ther she wo uld support a mo nit ored return, Applin responded with an un equiv ocal “ no ” :

3 Exhibits indicate that Mother tested negative 37 times during t h e pend ency of the case.6 Because both parents have known from the beginning the concerns of th e Department, wh ich has been the drug i ssue, especially for [Mother and Father]

. Yes, the parents w ere completing their services, but drugs co ntinue to be a problem, so, therefore, I cannot place two vulnerable children in their care knowing that if anyth ing gets rough o r so mething, they can p ossib ly use drugs, and I c an ’ t do that to [ Son and Daughter]

. Applin concluded her testimo ny by referri ng to psychological assessments that characterized Mother as a “ questionable parent al resource ” and Father as a “ potentially suit able parental resource
. ”

B. Mother Mother testified that she has five children but that she relinquished her right s to Siblings in 2014 when the third was born with “ cocaine, marijuana, and methamphetamines in her s ystem. ” Mother indicated that, at the time, she initiall y li ed to caseworkers about her drug use but called the next day t o tel l the truth because she “ got scared. ” She test ified that she completed a 60

- day treatment program following the re moval of Siblings and that , between 2014 and the dat e of trial , she ha d comp leted a total of two inpatie nt programs and two out patient
p rograms , including the inpatient and outpatient care she receiv ed while this case was pending. She also testified that she see s Siblings on a “ regular basis, ” talks to “ al l three of them ev e ry da y , ” and has “ never missed a birthday or a holiday. ”
W hile t e stifying, Mother emphasized that until her most recent inpatient
tr eatment, no one had expla ined to her that she “ ha[s] other me ntal illnesses that [she] ha [s] to fight

. ” Although her testi m ony o n this point was inconsistent, s he complained that early in 2020 the Department had obtained a copy of her psycholog ical evaluation , which included diagnoses of major depressive disorder , generalized anxiety disorder, and self

- repor ted borderlin e
per s onali ty disorder, among oth ers , bu t that no one had provided her a c opy :7 I was not given information tha t would have been helpful. If the actual

— if their actual means w as to reunite, they would give me everything possible to fight w ith. . . . [T] hey di d n ’ t t ell me I had to go to rehab. That ’ s something I chose to do because I want to get help. I want to be a better person. I want to be a better parent.

She t h en tes t ified that she has scheduled appoint ments to start rece iving the “ m edicine ” and

“ ther a py ” s he n eeds , and that , other than while she was in the inpatient facility, she ha d been regula rl y attending “ na rcotic s anonymous ” meetings and has reconnected with church and fami ly members to build a better support network

. She also testified that she has m aint ained the same jo b for three years , that she has “ alwa ys been stable with a job and a p lac e, ” and that she ha d recently obtained a driver ’ s license. When asked how she thinks this case differs from the 2014 case in which she

r elinquished he r ri g hts t o he r children, Mother responded:
I was a lot younger and you ng - minded, and I u nderstand no w and take ability for my actions, and now I have not only my own relapse prevention plan but I have a better support team, a bet ter support system. I have mo r e out lets that are

— that can help me maintain my maintenance [sic] for my addiction because back then I didn ’ t consider myself an addict, and I would r ather say I ’ m in recovery now. And I und erstand that is going to take more than just s aying it or stayin g home

. I have to actually put forth the effort and help with my m ental illness

. . . .
She sum marized her position by saying she is now “ being realistic with it. ” Mother was not asked a bout her relationship with or plan s for Son or D aughter, but evi d ence adm itted at trial reflects that Mother told the D epartment she w anted to reunite with her children and that s h e expressed concern that she would not be afforded an opportunity “ to bond ” with infant Daughter during the p endency of th e case
. Departmen t reco rds describe both Son and Daugh te r as “ bonded and attached ” to M other.8 C. Father Fathe r ’ s testimony consisted p rimarily of a summary of his criminal history and his history of recreational drug use , along with his deep des ire f or family reunifica t ion

. H e described hi mself not as a “ regular ” drug user but as a user only in “ party

- type situation [ s ]

. ” He denied that he had ever been in in patient or outpatieint rehab ilitation and said that the

“ P.A.D.R.E. ” program that the Depart ment referred him to was not an outpa tient drug rehabilit ation program

— as the Department ha d characterized it

— but was in fact a parenting class. He indicated that , after the cocaine relapse, he decided to pursue outpatient rehabilitation , which would begi n a few days after t r ial, of his ow n initiative. When asked if he considered himself “ an a ddict, ” he responded:

I feel l ike I might have a problem, and I need to get he lp because of the consequences not sinking in and

— and, you know, but it ’ s jus t

— I ’ m jus t tryin g

— I ’ m trying t o ge t help. I ’ m trying to better m yself. I know that if we better our selves we can be better people for our children and that ’ s

— t hat ’ s

— that ’ s pretty much the bottom line what I ’ m trying to do.

He admitted that he and Mother did not do themselves “ any f avor s ” by usi ng cocaine in February and March. But he said he did n ot ha ve any doubt that he could “ s tay so ber for [ his] kids. ” When asked ab out his relationship with Mother, Father conceded that they were

“ having some prob lems with [their] relationshi p
. ” He explai ned , “ The stress of the c ase, you know

— you know, not being

— b eing without our kids, you kn o w . . . it ’ s take n

— it ’ s taking a toll

on us. ” He described the temptation to blame one another for the removal of the children and the cocaine relapse

. He testified th at he had spo ken with a counselor about the problems. Whe n asked about possible alte rnate p lacements for Son and Daughter, Father testified that he had not thought about it because he “ had fai th that the y would come h ome
. ” He9 testified t hat he and Mo ther were s eeking “ add itional time to maybe prove that [they] are worthy of a monitore d return and [have] a chance to prove that a little bit

. ” He contin ued by describing himself and Mother as “ great people ” and “ great pa rents ” who want thei r kid s back ho me.

D. Rothas Rothas , as guardian a d litem, testified that sh e visi ts Son an d Daughte r before each court hearing but sa id she could not recall the last time she visited them. She testified that she did not know the ch ildren ’ s wishes are “ a s far as it r elates to their parents

. ” She testified that Son and Daughter h a ve no identified spec ial needs but that Son, at four years of age, still

“ def ecates himself

. ” When asked if Son had seen any professional in “ an attempt to diagnose
him with any t hing , ” Rotha s responded that it was a “ g ood question ” but did not provide an

answer. The district court revisited the question later in Rothas ’ s testimony , asking Rotha s the results of the Department ’ s mandatory diagnostic screening for all children over the age of t hree. When Rothas again in dicated that she did not know and tha t she could not find the results in the record, the district court interrupted:

I ’ m going to sa ve you the effort. I think Exhibit 13, page 6 shows that [So n] had a therapy

— or he r [si c] therap ist is a lady named Bridgette Dilwor th, was diagnosed with atten tion deficit hyperactivity diso rder, language disorder involving his speech, and th en subsequently the child was diagnosed

— or I ’ m sorry

— prescribed methylphe nidate by a Dr. Raju a s ind icated fr om the [screening]

.
T he court follo wed up by asking if those dia gnose s and treatment “ s ound ab out right for his behavior s , ” a nd Rothas responded that she hesitates to label children so young but that she agreed that “ it does sound about righ t

. . . especi ally the spe ech. ”10 She agreed with counsel ’ s statement s that the c hildren had been in their current placement for “ two and a half months , ” that they were “ thriving ” in the placement, a nd that the foster family was “ stil l contemplating whethe r or not they ’ ll be a permanent placement for th ese kids

. ” She characterized the placement as a “ good home ” for Son and Daughter until an adoptive family could be found, in the event the foster family decides agai nst adoption. She
p ointed out that it was the foster fa mily that had taken Son to his scr eening and were “ working on the s peech ” with the local scho ol district. Whe n asked for her recommendation regarding termination, she testified that her recommendation “ aligns with the D epartment ’ s recommenda t ion ” because she served as the g uardian ad lite m for Siblings in the 2014 case a nd feels that Son ’ s and Da ughte r ’ s case is “ a carbon copy ” of the Siblings ’ ca se , which ended in relinquishment and termination. Counsel asked Rothas if Son and Daughter would remain “ in limbo ” i n the even t of termination. She responded i n the negative, a nd then explained:
We want children to get to permanency as soon as they can. I would suspect that the Department will be asking the foster parents to mak e a decision one wa y or the other very s hortly, an d if the foster parents decide to not be a permanen t placement, then they ’ ll do a legal [

- ] risk search and get the children in a legal [

- ] risk home.

She later clarified that “ quite honestly, in this case, [she] would as k the D epartment to look fo r a legal [

- ] risk home at this time. ” She cl osed by testifying that in her opinion termi nation is in the best interest of the children due to Mother ’ s and Fa ther ’ s “ failure to comply ” and “ us ing d rugs

. . . during the pendency of the c a se, ” which “ shows th at they ’ re not able to be safe or appropriat e caregivers for t hese children now or in the future. ”11 E. Judgment
A t the conclusion o f trial, the district court announced its findings that terminati on of Mother ’ s p arenta l righ ts is i n th e best inte rest of the chi l dren and that Mother had : (1) knowing ly p laced or kno wingly allowed the child r en to remain i n conditions or surroundings that endanger the physica l or emotional well

- being of the child ren , (2 ) engage d in condu ct o r kno wingly placed the child ren with person s who engaged in conduct that endange rs the physical or emotion al well

- being of the child ren , (3) failed to comply with the provisions of a court order specifically establish ing the ac tions ne cessary for the parent to obtain return of the child r en , and (4) used a controlled substance in a man ner that endange red the health or we ll

- being of the chi ldren

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

. The district court issued a final decree terminating Mothe r ’ s an d Father ’ s parental r ights and n aming the Department as managing cons ervator of Son a nd Daughter. Mother filed timely appea l. Father did not appeal

.

III. STANDA RD OF REVIEW
T he district court may order termination of the parent

- child relationship on ly “if clear an d convin ci ng ev ide nce s upports that a pa rent engaged in one o r more of t he [sta tutorily] enumerated grounds for ter mination and t hat term in ation is in the best interest o f the child.” See
In re N.G. , 577 S.W.3d 230, 232 (Tex. 2019) (per cur iam) ( c iting Tex. F am. Code § 161. 001 (b)) ; A. C. v. Texa s Dep ’ t of Fam

. & Pr otective Servs. , 57 7 S.W.3d 689 , 69 7 (Tex. App.

— Austin
201 9, pet. de nied)

. “Proceedings to terminate the parent

- child relationship implicate rights of constituti onal magnitude th at quali f y for height ened j udicia l protection.” In re A.C. , 560 S.W.3d 624 , 626 (Te x. 2018). P arental rights have been char acterized as “essential,” “a basic civil right of man,” and “far more precious than property rights.” See Holick v. S mith ,12 685 S.W .2d 18, 2 0 (Tex. 1985) (c it ing Stanle y v. Illinois , 405 U.S. 645, 651 (1972 )). T hey are “perhap s the oldest of the fundamental l iberty interest s” protected by the United States Constitution. See Troxel v. Granville , 530 U.S. 57, 65 (2000) ; E. E. v. Texas Dep ’ t of Fam

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

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

- ] rights termination proceeding, it seeks not merely to i nfringe that fundam ental liberty inter est, but to end it. ” Santosky v . Kramer , 4 55 U.S. 745, 75 9 (1 98 2)

.

“ Consequently, t ermination procee dings sh ould be strictly scr utinized, and involuntary termination statutes are strictly construed in favor of the p arent. ” Holick , 685 S.W.2d at 20.
“Be cause termination of parental ri ghts ‘ is c o mplete, final, i rrev oc able and divests for all time’ the nat ural and legal ri ghts betwe en parent and child, a cour t cannot involun ta rily sev er that relationship ” in absence of “ evidenc e sufficient to ‘produce in the mind o f the trier of fact 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 Holick , 685 S.W. 2d at 20 )

. “This heightened pr oof standard carries the weight and gr avity due process re quires to p rotect the funda mental ri ghts at s take.” Id

.

“ A correspondingly searc hing sta ndard of appellate review is an essential
proc edural adjunct. ” Id

. “The distinction between legal and factual sufficiency lies in the extent
to w hich dis pu ted evid ence contr a ry to a fin ding may be co nsidered.” Id

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

- findi ng and considering undisputed contrary evidence, a reasonable factfinder coul d form a f ir

m belief or convic t ion that th e fin ding was true.” Id . at 631. “Factual suffici ency, in c ompariso n, requir es weighing disputed evidence contrar y to the findi ng against all the evidence favoring the finding.” Id

. “In a factual

- sufficiency re vi ew, the ap pellate court must consider wh ether disputed evidence13 is s uch that a reasonable f actfinder could no t have re solved it i n favor of the finding.” Id

. “Evidence i s factually insufficient if, in light of the entire record, the disputed evidence a

r easonabl e factfind er could n o t have cred ited in favor of a finding i s so significant that t he factfin der coul d not hav e formed a firm belief or conviction that the findi ng was true.” Id

.
IV. DISCUSSION
In her sole issue on appeal, Mother raises two arguments: fir st , that the evidence
i s legally insuff icient to support the best

- interest finding ; and second, that the evidenc e is factually insufficient to suppor t that finding. I disagree with the first assertion but agree with the sec ond.

A. Best
- Inte rest Standard

“ [ T ] here is a strong p r esumption that t he best interest of a child is ser ved by keeping the child with a parent

. ” In re R.R

. , 209 S.W.3d 112 , 116 ( Tex. 2006). “ And because of the strong presumption in favor of maintaining the parent

- child relati onship and the due p rocess impl i cations of termi nating a parent ’ s rights to her mi nor child without clear and convincing evidence, ‘ the best interest s tandar d does not permit termination merely be cause a child mi ght be better off living elsewhere. ’ ” In r e D.L.W.W. , 617 S.W.3 d 64 , 81 (T e x. App.

— Houston [1 st Dis t.] 2020, n o pet.) (quotin g In re J.G.S. , 574 S.W. 3d 101, 121

– 22 (Tex. App.

— Houston [1st Dist. ] 2019, pet. denied) ). “ Moreover, termination is not wa rranted ‘ without the most solid and substantial r easons. ’ ” Id . (quoti ng Wiley v. Spratlan , 543 S. W.2d 349 , 352 (Tex. 1976) ). “ In
p arental

- termination proc eedings, [the D epartment ’ s] burden is not si mply to prove that a parent should not have cu stody of her child; [the Department] must meet the hei ghten ed burden to prove, b y clear and convincing evide nce, tha t the parent should no lon ger have any relationshi p14 with her chil d whatsoever. ” Id . (citing I n re K. N.J. , 583 S.W.3d 813, 827 (Tex. App.

— Sa n Antonio 2019, no pet.) ). When deciding the best

- interes t issue, we cons ider t he factors s et forth in Holl ey v. Ad ams , 544 S.W.2d 367, 37 1

– 72 (Tex. 1976) , which inc lude the childre n ’ s wishes, the children ’ s emotiona l and physical needs no w and in the fut ur e, any emotional or physic al danger to the children now and in the future, the paren ting a bi lities o f any pa rties seek ing custody, programs available to help those part ies, plan s f or the children by those seeking custod y, the stability of the proposed pl acem ent, the parent ’ s conduct indicating that the parent

- c hild relationship is i mproper, an d any excuses for the parent ’ s conduct. S ee also A. C. , 560 S.W.3d at 631; In r e E.N.C. , 38 4 S.W.3d 796, 807 (Tex. 20 12); In re C. H. , 8 9 S.W.3d 17, 27 (Tex. 2002). It i s the burden of the party seeking termination to establish that termination is in the c h ild ren ’ s best in terest

. S ee In re J.F.C ., 96 S.W.3d 256, 266 (Tex. 2002)

. Th e set of fac tors is not exha ustive, an d no si ngle f actor is necessarily dispositive of the issue. S ee Holley , 544 S.W.2d at 371

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

— E l Paso 2008 , no pet. )

.

B. Legal Suffi ciency When evaluating a lega l

- sufficiency challenge, we consider all evidence weighing in favor of t he disputed finding and any undisputed cont rary evidence. A.C. , 560 S.W.3d at 6 30

– 631. With respect to the risks to and needs of the children and the nature of the parent

- child relationship , i t is undispute d that Mother ’ s third chil d and Daughter were both born with traces of illegal substances in their sys tem s . Mot her reli nquishe d her righ ts to Siblings in 2014 du e to recal citrant dr ug use. She tested positive for cocaine twice late in the pendency of the cas e,
not withstanding her awar eness that drug use might prevent her fro m reuniti ng with Son and15 Daughter. And Son, at age four , was not yet properly toilet trai n ed. T his evidence suggests the parent

- child relationship might not have been a pr oper one , t hat Son and Da ughter might be exposed t o danger , and that Mother may not be able to meet their physical or em otional needs

. See , e.g. , M. J. v. Texas Dep ’ t of Fam. & Protective Servs ., No. 03

- 20

- 00527

- CV , 2021 WL 1045727, at *1 0 (Tex. App.

— Austin Mar. 19, 2021 , no pet. ) (mem. op.) ( toilet
t raining ) ; In re K.C.F ., No. 01

- 13

- 01078

- CV, 2014 WL 2538624, at *14 (Tex. App.

— Houston [ 1st Dist.] June 5, 2014 , no pet. ) (mem. o p.) ( habitual drug use ) ; In re A.C ., 394 S.W.3d 633, 642 (Tex. App.

— Houston [1st Dist.] 2012 , no pet. ) (drug use during pregnancy); In re F.A.R ., No. 11

– 04

– 00014

– CV, 2005 WL 181719, at *4 (Tex. App.

— Eastland Jan. 13, 2005, no pet.) (mem. op.) (explaining t h at eviden ce of substance ab use implicates m u ltiple Holley factors )

. With respect to the sta b ility of the proposed placement and any plans that the placement might have for the children, both the De partment and Father c haracterized the children as “ thrivi n g ” in the placem ent. A pplin testified that the children had “ come a long way ” since removal and placement with the current foster family. Ro thas testified that the family had arranged S on ’ s developmental screening and had plans f or appropriate therapy f o r the identified development al delay and behavioral issues. And it is undisputed that the c urren t foster family was, at lea st at one point, c onsidering a dop ting the children. Based on this evidence , a reasonable factfinder could have form ed a firm beli e f or conviction that termina tion of Mother ’ s rights is in the best in terest of Son and Daughte r. I therefore agree with the majority ’ s decision to ov errule Mother ’ s legal

- suffici ency argument

.16 C. Factual Suffic iency I disagree with the majority wi th r e spect to the factual suffici ency of the evidence to suppo rt the best

- interest finding. In exami ning the factual sufficiency of the evidence supporting a challenged f inding, we “ weigh[ ] disputed evidence contrary to the findi ng against all the evidence f a vor ing the finding , ” see A.C

. , 560 S.W.3d at 6 31 , to determine “ wh ether disputed evidence is s uc h that a reasonable f actfinder could no t have resolved it i n favor of the finding , ” see i d

. If a reasonable factfinder could not have resolved t he evidence in fav or of the disputed findin g, we must reverse

. See S.G. v. Tex as Dep ’ t of Fam. & Protective Se rvs ., No. 03

- 21

- 00085

- CV , 2021 WL 3437890 , at *10 (Tex. App.

— Austin Au gust 6, 2021, no pet. h. ) (mem. op.).

1. the children ’ s wishes At trial, Rothas conceded tha t sh e did not ask Son or Daug hter about their wish es with respect to reunification or placement

. However, Department recor ds admitted into evidence indicate that Son and Daughter are “ bonded and attached ” t o Mother and Father. That fact, when paired with the fact that the children h ad experienced four u nsu ccessful placements in t he eleven

- month pend ency of the case, would support an inference that Son and Daughter mig ht wish to return to Mother and Father rather than wait for the Department to arrange yet ano ther placement. See A.L. G.A. v. Texas Dep ’ t o f Fam. & Protective Servs ., No. 03

- 19

- 00086

- CV, 2019 WL 2998587, at *9 (Tex. App.

— Austin July 10, 2019 , pet. denied ) (mem. op.) (construing undisputed evidence that children were “ bonded ” as evidence of des i re to remain in placement )

.17 2. t he stability of Moth er ’ s and Father ’ s h ome Other than the drug us e already discusse d, a t no point during the penden cy of the case did t he Department or the ad litem express any concerns about Mother ’ s home, a
two

- bedroom apa r t ment. De partment records a dmitted into eviden ce reflect that both parents have a history of st able employment, with Mother having held the same job for three year s. Mother and Father had been in a committed relationship for six years at intake, wi th no h istory o f family vio lence. And while Father d oes have a history of criminal convi ctions, there was no evidence of a history of violence, and the convict ions and resulting co nf in emen t occurred before the birth of Son and Daughter, his only children , ther e by minim izing any impact on the children

. See In re R .S .D ., 446 S.W.3d 816, 822 (Tex. App.

— San Antonio 2014 , no pet. ) ( holding evidence of one - time incarceration , u nder circu mstances in w hich parent had completed parenting classes, insufficient to suppor t finding that termination is in be st interest); In re
O.N.H ., 401 S.W.3d 681, 684 (Tex. App.

— San Antonio 2013, no pet.) (“[T]he mere fact that an act or omission occurred in t he past does not ipso facto prove that termination is currently in the child ’ s b e st inter est.”); In re R.L ., No. 04

- 13

- 00226

- CV, 2013 WL 5508381, at *6 (Tex. App.

— San Antonio Oc t. 2, 2013, no pet.) (mem. op.) ( “ T he best

- interest inq uiry is a forward

- lookin g determination

. ”) ; In re De l a Pe ñ a , 999 S.W.2d 521, 532 (Tex. App.

— El Paso 199 9 , no pet

. ) ( “ [W] hile [ father ’ s ] past may not be stell ar, it does not and should not preclude him from his parental role

. . . . ” ). In addition, Mother ’ s and Father ’ s p roximity to Grandparents allow s Son and Daughter to interact with Siblings and provides additiona l stability for the household.18 3. the stability of the proposed pl acem en t and plans for t hat placem ent The Department ’ s cons ervatorship during the pendency of the case resulted in little or no sta bility for Son and Daughter. Records admitted into evidence, when combined with the testimony at trial, reveal that Son and Daughter had been plac ed four times during the nine months between June of 2020 and Marc h of 2021 , with tw o of those being family placem en ts and two bei ng non - familial. At each new p lacement, the foster family i nitially expressed inter est in adoption or a long

- term arrangement before asking the Department to find a new placem ent. 4
Rothas testified that th e current foster family was “ still contemplating ” whether to adopt Son and Daug h ter, but A pplin had already t estified that the family no longer wants to be considered a s a
pos sible adoptive home, and Rothas ultimately testified that she would like the Depa rtment to begin searching for a legal

- risk home immediately. The D e partment ’ s fi nal rep ort to the district cou rt indicates that it would seek termination of Mother ’ s and Fat her ’ s parental rights and placement of Son and Daughter in a legal

- risk foster ho me. Applin conceded at trial that such a home had not been identified and that Son and D aughter had “ not yet ” been added to the wait ing list

. Whe n asked how long it would ta ke to find a legal

- risk fo ster home for Son and Daughter, Applin testified that s he “ can ’ t
say ” because “ it just depends. ” She did not deny that it could take s everal mo nths before an
appro priate placement is iden tified. In short, the Department ’ s propos al , as of the date of trial, does not offer any stability for Son and Daughter. See In re R.W ., No. 01

- 11

- 00023

- CV,
2011 WL 2436541, at *13 (Tex. App.

— Houston [ 1 st Dist. ] June 16, 2011 , no pet. ) (mem. op.) (observing “ childre n ’ s uncertain future in regard to an adoptive placement ” before holding evidence insufficient t o support findin g that term ination is in best interest).

4 Aunt ’ s pla cement was dis r upted when Aunt left So n and Dau ghter unattended in a car.19 4. conduct indicating that the parent

- c hi l d relatio nship is i mproper As o utlined in my legal

- sufficiency analysis , the Depar tment prese nted some evidence that the re lationship between Mother and the children might not be pr oper , includin g the fact that Mother had used illega l substances during a t leas t two of her five preg n ancies and continued to use cocaine after Daughter was born. See A.C ., 394 S.W.3d at 642 (holding evidence that mother “ r egularly used illegal drugs both during her pregnancy with the child and after undergo ing a treatment pr o gram ” to co nstitute evidence of an improper relationship ).
I n addition, f our - year - old son was not yet toilet trained at the time of trial. See M. J ., 2021 WL 1045727, at *1 0

. N e vertheless, Father pr ovided contravening evidence, including that he had com p leted parenti ng classes, that he was seeking out co unseling for the relationship issues that ha d developed between himself and Mother, that Mother and Father love Son and Daughte r very much and want them back home , and that Mother and Father are both comm i tted to makin g themselves “ be tter people ” and “ better parents ” for the children

.

5. any excuses fo r the parent ’ s conduct With respect to any excuses for the inappropriate aspects of Mother ’ s relationship with Son and Daughter, there is evidence t hat someo n e had told Mot her marijuana w as safe to use during pregnancy. On the subject of the 2014 relinq ui shment of Siblings , she described herself as “ too y oung ” at the time to understand the seriousness of illegal drug use or the ramifications of her choices. A nd with respect to the cocain e re lapse in March and Ap ril of 2020 while the case was still pendi ng, Mother testif ied that no one had informed her tha t she has underlying psychological disorders that need to be addres sed a long with her addic tion s . She20 tes t ified that she had voluntaril y sou ght out another round of rehabilitation and had set appoint men ts with add itional professionals to start addressing those needs.

6. programs available
Because the Department has not iden tified a long

- term place ment for Son or Daughter, the record includes very little evidence of any programs available to support the chil dren ’ s next foster family. R o t has d id offer testimony that the foster family ’ s local school distr ict has started offering services to So n to address his speec h and behavior al issues. Thos e services should remain available to any one that obtains possessio n of the children. See
19 Tex. Admin. Code § 89.63 (2 021) (Tex . Educ . Agency, Instructional Arrangements and Settings ) . Mother testifie d that, should the chi l d ren re turn to her, she would rely on phys icians, counselors, her church, her parents, and her i n - laws as sources of support.

7. the children ’ s emotional and physical needs and any dangers posed In part because S on a nd Daughter are so young, the record refle c ts little evidence of their e m otional and physical needs. There is some evidence that So n is su ffering from certain developmental and beha v ioral issu es. However, it is unclear whether those issues are transient or long term and t o what extent those issu e s might have been caused or e xacerbated by removal and repeated placement in unfamiliar homes. In re A.L.M ., 300 S.W.3d 914, 925 (Tex. App.

— Texarkana 2009 , no pet. )

. And any substance abuse by Mother undermines Son ’ s and Daughter ’ s emotio nal and physica l health and p oses a potential danger to them. See F.A.R ., 2005 WL 181719, at *4

. It is well se ttled, however, that a child ’ s “ paramount ” need is promp t, long

- term place ment in a safe a nd stable home. See T ex. Fam. Code § 263.307(a) . Here, Father testi f ied that he had “ no doubt ” th at , with the counseling and rehabilitation he and Mother are21 p ursui ng, they can provide a safe, sob er, dr ug - free long

- te rm home for Son and Daug hter. The Department, meanwhile, is unsure of the next place ment for Son and Daug h ter or when such a placement w ill be available.

8. the paren ting abi lities o f any pa rties seeking c ustody The parties presented little evidence regardin g M other ’ s and Father ’ s respective parenting abilities. The fact that four

- year - old S on was not yet fully toil et trained at the ti me of trial may serve as some evidence of weak parenting abilities. And t he Department admitted into evidence psychological eva luations performed on both Moth er and Father

. Mother ’ s report included a host of possible psych ologica l diagnoses , some of which may impact her ability to parent , but as our sister court has explaine d:
[H ] aving the listed disorders and disabilities does not constitute evidence of an unstable or unsafe home. Nor does the existence of the disorders and dis a bilities constitute evidence of Mothe r ’ s inability to provide for the children ’ s emotional or phy sical needs. Even assuming the children ’ s removal from their Mother and each other was not the cause of the listed diagnoses, there was no proof that Mother d id not provide for the childr en ’ s phy sic al and emotional need s, or that she is unable to provide for their needs in the future.

In re L.C.L ., 599 S. W. 3d 79, 88 (Tex. App.

— Houston [14 th Dist. ] 2020, pet. denied ) (en banc)

. M other ’ s report included a con c lusion that she is a “ questionable parent al resource
. ” Father ’ s report charac terized him as a “ pot entially suitable parental resource. ” The reports recommended

counse ling and therapy for both Mother and Father, and both offered undisputed testimony that the y had already sought ou t that tr eatment and were con tinuing to do so.22 Conc lusion regarding fact ual sufficiency
V iewing the ev idence in a neutral light and weighin g all the evidence under the governing standard , I would conclude the majority of the H olley factors militate against the best

- interest finding in this case. The Department disagrees, rely ing heavily on Mother ’ s undisputed history of substance abuse and “ instabi lity ” to argue that “ the evidence allowed the trial court to reasonably form a f irm belief or conviction that termi nation of [Mother] ’s parental rights ” is in Son ’ s and Daughter ’ s be st interest. But while Mother ’ s history of substance ab use

“ is evidence that weighs in favor of the best

- interest findin g [and] a factor we carefully co n sider in reaching our conclusion, we cannot ignore all the other evidence an d base our holding solely on evidence of [ her] drug use. ” In re D.D.M ., No. 01

- 18

- 01033

- CV, 2019 WL 2939259, at *8 (Tex . App.

— Houston [1st Dist.] July 9, 2019, no pet.) (mem. op. )

. In stead, in conducting a factual

- sufficiency review, we must consider all the evidence relat ing to the Holley factors. See id . ( citing In re H.R.M ., 209 S.W.3d 105, 109 (Tex. 2006) ). Here, t he undisput ed evidence sugg ests Son and Daughter are bonded t o Mother

. At trial, Mother and Father test ified of a pla n to safeguard their own health and keep their children safe. Other than drug use by the parents in March and April , the sta bility of the home is

un disputed, wherea s the Department is uncertain of i t s plans for the children. And both Mother and Father offered undisputed tes timony of their dilige nt e fforts to get the help they need to address any issues that might have undermin ed their ability to pare nt Son and Da ugh ter in the past. Perhaps of most concern is the fact that the Departmen t did not attempt to obtain Mother ’ s r ehabilitation records and th at Son ’s and Daught er ’s guardian ad litem

— the individual charged by the Legis lature with “protecting a child ’s best i nterest , ” see Tex. Fam. Code23 § 107

. 005(5) , could not answer the most basic questions about the children or thei r best interest

. She could not even recall the last time she had seen Son or Daughter. And while Ro t has did inform the district court that she “fe[ lt] like [she] n eed[ed] to add r ess the Holl ey issue , ” did not discuss the Holley factors. Sh e testified that she beli eves termination of Mother ’s and Father ’s parental rights is in Son ’s and Daughte r ’s best interest ; howeve r, conclus ory state ments such as these a re not sufficient to s u pport termination

. See In re B.R ., 456 S.W.3d 612, 617 (Tex. App.

— San Antonio 2015, no pet.) (“[ The Dep artment ]’s agreement that it was in the children ’ s best interest t o terminate appellant ’ s parental rights and it was in their int erest to ‘move on’ was conclusory.”); In re A.H ., 414 S.W.3d 802, 807 (Tex. App.

— San An tonio 2013 , no pet. ) (h olding that “ conc lusory testimony [regarding best interest] , such as the caseworker ’ s, even if uncontradic ted [,] does not amount to more than a sc intilla of evidence. ”)

. Therefore, c ognizant of the constitutional concerns related to parental termination, the c lear instruc tions from the Supreme Court of Texas that we strictly scrutinize termination proceedings , the strong presumption that preservati on of the parent

- child relationship is in the children ’ s best intere st, and our obligation to consider all evi dence equally, s e e L.C.L ., 599 S. W.3d at 89; D.D.M ., 2019 WL 2939259, at *8 , I would conclude based on t he record before us that a reasonable factfinder could not ha ve f ormed a sufficiently firm belief or conviction that termination of Mother ’s parental rights is in the ch ild ren ’ s best interest. Accordingly, I would hold that the Department failed to meet its burden at trial and would sustain Mother ’s challenge to th e f a ctual sufficiency of the evidence to support the district court ’s bes t

- interest finding.24 V. CONCLUSION I respectfully dissent in part f rom the majority ’ s opinion. I agree that the evidence presented is le gally sufficien t to support the trial cou rt ’ s best

- interest finding, but because the evidence is factually insufficien t to support that finding, I would re verse the portion of the district court ’ s decree te rminating Mother ’ s rights to her children and remand for a new trial

. Because they are not ch a ll enged on appeal, I would not reach the provisions of the district
court ’ s order terminating Father ’ s righ ts and appointing the Department as permanent managing conservator of the children

. See T ex
. Fam. Code § 263.4 04 (outlining findings necessary to

s u pport appoint 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 that challenge to conservatorship

“ was not s ub sumed in her chal lenge of the termination decision ” wh e re parent “ di d not specifically appea l ” the cons ervator ship or related findings)

.

_

_______________________ __________________ Edward Smith , Jus ti c e Before J ustice s Good win, Baker, and Smith Filed: December 15, 2021