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 whether the Department met its burden to show that it

is in Son’s and Daughter’s best interest to have no relationship with Mother 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 presented at trial, I cannot conclude that the Department met that burden. 

For the reasons set forth below, I would reverse the portion of the decree terminating Mother’s 

parental rights and remand the case. And because they are not challenged on appeal, I would not 

reach the decree’s provisions addressing conservatorship of the children or Father’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. BACKGROUND1

In June of 2020, shortly after Daughter was born, the Department removed Son 

and Daughter from Mother and Father, who lived together and had been in a relationship for six 

years. At birth, Daughter’s meconium tested positive for cocaine and cannabinoids, and 

Mother’s urine showed traces of cannabinoids. Daughter showed symptoms of drug withdrawal, 

including tremors and seizures. Mother had previously relinquished her rights to three other 

children (Siblings2) around 2014, after the Department became involved due to reported drug use

by Mother. The Siblings were adopted by their maternal grandparents. In addition, in 2016 the 

Department had investigated reports of Mother’s alleged drug use during her pregnancy with Son 

and her alleged failure to seek adequate prenatal care during that pregnancy. Those reports were 

ultimately “ruled out” when Son tested negative for any substances at birth, and the case was

closed when Mother completed her services.

At intake in 2020, the Department described Son as somewhat “overweight” and 

having “listening issues” but ultimately as being a “happy and sweet kid” who “get[s] along with 

his siblings and other kids his age.” The Department described Daughter as being “a sweet and 

quiet baby.” The Department reported that both children “appear[ed] to have a good positive 

relationship in the family” and that neither child displayed signs of developmental delay or 

behavioral issues. The Department described Mother and Father as having stable and 

appropriate housing, stable employment, and no history of domestic violence. Department 

research revealed that Mother had no criminal history but that Father had served fifty days for

1 This section is taken from undisputed aspects of the record.

2 Father offered undisputed testimony that he did not father the Siblings and that Son and 

Daughter are his only children.
3

possession of a prohibited weapon in 2009 and served four years for burglary of a habitation 

in 2014.

Following removal in 2020, Son and Daughter were initially placed with their 

maternal grandparents—the Siblings’ adoptive parents—who wanted all five children to remain 

together. That placement failed when Grandfather “started contacting the Department asking for 

[Son] to be removed because he could not care for him.” Grandfather also complained that it 

was too difficult for his household to support all five children. The Department then placed Son 

and Daughter together with an aunt. That placement was subsequently disrupted when a police 

report revealed that Aunt had left Son and Daughter unattended in a vehicle at a local 

grocery store.

After the second familial placement was disrupted and no other familial 

placement was identified, the Department placed Son and Daughter with a non-familial foster 

family. That placement failed when “[t]he foster mom could not handle [Son’s] behaviors.” In 

March of 2021, Son and Daughter were placed with a new foster family that intended to adopt 

the children. Son and Daughter remained there at the time of trial, although a month before trial 

the foster family contacted the Department and indicated that they had “changed their minds”

and no longer wished to adopt the children. At trial, the Department indicated that its revised

plan for the children would be temporary placement with an as-yet unidentified 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 accordance with the 

emergency order in place at the time. See Thirty-Sixth Emergency Order Regarding COVID-19
4

State of Disaster, 629 S.W.3d 897, 897–98 (Tex. 2021) (order). Four witnesses testified at trial: 

Mother, Father, caseworker Jasmine Applin, and guardian ad litem Cathy Rothas.

A. Applin

Applin testified first and briefly described the circumstances leading to removal 

and the history of the placements. When asked about the current placement, she responded:

Overall[,] it’s going well. There have been some issues with [Son] as far as, like, 

his behaviors; however, 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, his 

behaviors and getting him—or giving him that structure, home environment that 

he needs.

Applin described the children as “thriving” and having “come a long way” and noted that Father 

had agreed with that assessment. She then explained that the Department’s “current permanency 

plan” for Son and Daughter is to “seek a legal[-]risk foster home” and ultimately arrange an 

“unrelated adoption.” She conceded, however, that the Department had not “officially made a 

request for a legal[-]risk home” and had not “truly beg[u]n to search for a legal[-]risk foster 

home,” notwithstanding the current foster family’s stated unwillingness to continue as a 

long-term placement.

Applin then described Mother’s and Father’s family service plans, both of which 

were admitted into evidence. Mother’s plan required her not to use any illegal or illicit drugs, to 

undertake a drug and alcohol assessment, to actively participate in counseling and parenting 

classes, to submit to weekly drug testing, to pay child support, and to maintain employment and 

a safe, clean, appropriate home. Father’s plan required him not to participate in criminal 

activities, not to use any illegal or illicit drugs, to undertake a psychological evaluation, to 
5

actively participate in counseling and parenting classes, to submit to weekly drug testing, to pay 

child support, and to maintain employment and a safe, clean, appropriate home.

When asked about compliance with the plans, Applin said that both Mother and 

Father had completed “outpatient rehab” and “were on the road to a monitored return” when they 

failed drug tests on February 8 and March 30, 2021, with both parents testing positive for 

cocaine metabolites.3 She reported that Father was seeking additional outpatient therapy and that 

Mother had recently completed a thirty-day inpatient program. She testified that Father’s tests 

had all come back negative since the positive test in March. She testified that she was uncertain 

about Mother’s recent history because the Department did not seek or obtain any records from 

the inpatient facility but acknowledged that Mother had tested negative from March until her 

admission to that program. Counsel 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 yet.

. . .

Q. Okay. I understand. But if the judge terminates their rights today, there probably isn’t 

much need for you to do that; is that what you’re thinking?

A. Yes, sir.

Other than the drug-related provisions, Applin did not testify as to Mother’s compliance with

other requirements of the family service plan.

When asked whether she would support a monitored return, Applin responded 

with an unequivocal “no”:

3 Exhibits indicate that Mother tested negative 37 times during the pendency of the case.
6

Because both parents have known from the beginning the concerns of the 

Department, which has been the drug issue, especially for [Mother and Father].

Yes, the parents were completing their services, but drugs continue to be a 

problem, so, therefore, I cannot place two vulnerable children in their care 

knowing that if anything gets rough or something, they can possibly use drugs, 

and I can’t do that to [Son and Daughter].

Applin concluded her testimony by referring to psychological assessments that 

characterized Mother as a “questionable parental resource” and Father as a “potentially suitable

parental resource.”

B. Mother

Mother testified that she has five children but that she relinquished her rights to 

Siblings in 2014 when the third was born with “cocaine, marijuana, and methamphetamines in 

her system.” Mother indicated that, at the time, she initially lied to caseworkers about her drug 

use but called the next day to tell the truth because she “got scared.” She testified that she 

completed a 60-day treatment program following the removal of Siblings and that, between 2014 

and the date of trial, she had completed a total of two inpatient programs and two outpatient 

programs, including the inpatient and outpatient care she received while this case was pending. 

She also testified that she sees Siblings on a “regular basis,” talks to “all three of them every 

day,” and has “never missed a birthday or a holiday.”

While testifying, Mother emphasized that until her most recent inpatient 

treatment, no one had explained to her that she “ha[s] other mental illnesses that [she] ha[s] to 

fight.” Although her testimony on this point was inconsistent, she complained that early in 2020 

the Department had obtained a copy of her psychological evaluation, which included diagnoses 

of major depressive disorder, generalized anxiety disorder, and self-reported borderline

personality disorder, among others, but that no one had provided her a copy:
7

I was not given information that would have been helpful. If the actual—if their 

actual means was to reunite, they would give me everything possible to fight with.

. . . [T]hey didn’t tell 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 then testified that she has scheduled appointments to start receiving the “medicine” and 

“therapy” she needs, and that, other than while she was in the inpatient facility, she had been 

regularly attending “narcotics anonymous” meetings and has reconnected with church and family 

members to build a better support network. She also testified that she has maintained the same 

job for three years, that she has “always been stable with a job and a place,” and that she had 

recently obtained a driver’s license.

When asked how she thinks this case differs from the 2014 case in which she 

relinquished her rights to her children, Mother responded:

I was a lot younger and young-minded, and I understand now 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 better support system. I have more outlets 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 rather say I’m in recovery now. 

And I understand that is going to take more than just saying it or staying home. I

have to actually put forth the effort and help with my mental illness . . . .

She summarized her position by saying she is now “being realistic with it.”

Mother was not asked about her relationship with or plans for Son or Daughter,

but evidence admitted at trial reflects that Mother told the Department she wanted to reunite with 

her children and that she expressed concern that she would not be afforded an opportunity “to 

bond” with infant Daughter during the pendency of the case. Department records describe both 

Son and Daughter as “bonded and attached” to Mother.
8

C. Father

Father’s testimony consisted primarily of a summary of his criminal history and 

his history of recreational drug use, along with his deep desire for family reunification. He 

described himself not as a “regular” drug user but as a user only in “party-type situation[s].” He 

denied that he had ever been in inpatient or outpatieint rehabilitation and said that the 

“P.A.D.R.E.” program that the Department referred him to was not an outpatient drug 

rehabilitation program—as the Department had characterized it—but was in fact a parenting 

class. He indicated that, after the cocaine relapse, he decided to pursue outpatient rehabilitation, 

which would begin a few days after trial, of his own initiative. When asked if he considered 

himself “an addict,” he responded:

I feel like I might have a problem, and I need to get help because of the 

consequences not sinking in and—and, you know, but it’s just—I’m just trying—

I’m trying to get help. I’m trying to better myself. I know that if we better 

ourselves we can be better people for our children and that’s—that’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 favors” by using cocaine in February 

and March. But he said he did not have any doubt that he could “stay sober for [his] kids.”

When asked about his relationship with Mother, Father conceded that they were 

“having some problems with [their] relationship.” He explained, “The stress of the case, you 

know—you know, not being—being without our kids, you know . . . it’s taken—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 that he had spoken with a counselor about the problems.

When asked about possible alternate placements for Son and Daughter, Father 

testified that he had not thought about it because he “had faith that they would come home.” He 
9

testified that he and Mother were seeking “additional time to maybe prove that [they] are worthy 

of a monitored return and [have] a chance to prove that a little bit.” He continued by describing 

himself and Mother as “great people” and “great parents” who want their kids back home.

D. Rothas

Rothas, as guardian ad litem, testified that she visits Son and Daughter before 

each court hearing but said she could not recall the last time she visited them. She testified that 

she did not know the children’s wishes are “as far as it relates to their parents.” She testified that 

Son and Daughter have no identified special needs but that Son, at four years of age, still 

“defecates himself.” When asked if Son had seen any professional in “an attempt to diagnose 

him with anything,” Rothas responded that it was a “good question” but did not provide an

answer. The district court revisited the question later in Rothas’s testimony, asking Rothas the 

results of the Department’s mandatory diagnostic screening for all children over the age of three. 

When Rothas again indicated that she did not know and that she could not find the results in the 

record, the district court interrupted:

I’m going to save you the effort. I think Exhibit 13, page 6 shows that [Son] had

a therapy—or her [sic] therapist is a lady named Bridgette Dilworth, was 

diagnosed with attention deficit hyperactivity disorder, language disorder 

involving his speech, and then subsequently the child was diagnosed—or I’m 

sorry—prescribed methylphenidate by a Dr. Raju as indicated from

the [screening].

The court followed up by asking if those diagnoses and treatment “sound about right for his 

behaviors,” and Rothas responded that she hesitates to label children so young but that she 

agreed that “it does sound about right . . . especially the speech.”
10

She agreed with counsel’s statements that the children had been in their current 

placement for “two and a half months,” that they were “thriving” in the placement, and that the 

foster family was “still contemplating whether or not they’ll be a permanent placement for these 

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 against adoption. She 

pointed out that it was the foster family that had taken Son to his screening and were “working 

on the speech” with the local school district. When asked for her recommendation regarding 

termination, she testified that her recommendation “aligns with the Department’s 

recommendation” because she served as the guardian ad litem for Siblings in the 2014 case and 

feels that Son’s and Daughter’s case is “a carbon copy” of the Siblings’ case, which ended in 

relinquishment and termination.

Counsel asked Rothas if Son and Daughter would remain “in limbo” in the event

of termination. She responded in the negative, and 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 make a decision one way or 

the other very shortly, and if the foster parents decide to not be a permanent 

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 ask the Department to look for a 

legal[-]risk home at this time.” She closed by testifying that in her opinion termination is in the

best interest of the children due to Mother’s and Father’s “failure to comply” and “using drugs

. . . during the pendency of the case,” which “shows that they’re not able to be safe or 

appropriate caregivers for these children now or in the future.”
11

E. Judgment

At the conclusion of trial, the district court announced its findings that termination 

of Mother’s parental rights is in the best interest of the children and that Mother had: 

(1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings 

that endanger the physical or emotional well-being of the children, (2) engaged in conduct or 

knowingly placed the children with persons who engaged in conduct that endangers the physical 

or emotional well-being of the children, (3) failed to comply with the provisions of a court order 

specifically establishing the actions necessary for the parent to obtain return of the children, and 

(4) used a controlled substance in a manner that endangered the health or well-being of the 

children. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (P), (2). The district court issued a 

final decree terminating Mother’s and Father’s parental rights and naming the Department as 

managing conservator of Son and Daughter. Mother filed timely appeal. Father did not appeal.

III. STANDARD OF REVIEW

The district court may order termination of the parent-child relationship only “if

clear and convincing evidence supports that a parent engaged in one or more of the [statutorily] 

enumerated grounds for termination and that termination is in the best interest of the child.” See 

In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam) (citing Tex. Fam. Code § 161.001(b));

A.C. v. Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 697 (Tex. App.—Austin 

2019, pet. denied). “Proceedings to terminate the parent-child relationship implicate rights 

of constitutional magnitude that qualify for heightened judicial protection.” In re A.C., 

560 S.W.3d 624, 626 (Tex. 2018). Parental rights have been characterized as “essential,” “a 

basic civil right of man,” and “far more precious than property rights.” See Holick v. Smith, 
12

685 S.W.2d 18, 20 (Tex. 1985) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)). They are 

“perhaps the oldest of the fundamental liberty interests” protected by the United States 

Constitution. See Troxel v. Granville, 530 U.S. 57, 65 (2000); E.E. v. Texas Dep’t of Fam. &

Protective Servs., 598 S.W.3d 389, 396 (Tex. App.—Austin 2020, no pet.). “When the State 

initiates a parental[-]rights termination proceeding, it seeks not merely to infringe that 

fundamental liberty interest, but to end it.” Santosky v. Kramer, 455 U.S. 745, 759 (1982). 

“Consequently, termination proceedings should be strictly scrutinized, and involuntary 

termination statutes are strictly construed in favor of the parent.” Holick, 685 S.W.2d at 20.

“Because termination of parental rights ‘is complete, final, irrevocable and divests for all time’ 

the natural and legal rights between parent and child, a court cannot involuntarily sever that 

relationship” in absence of “evidence sufficient to ‘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.’” A.C., 

560 S.W.3d at 630 (quoting Tex. Fam. Code § 101.007 and Holick, 685 S.W.2d at 20). “This 

heightened proof standard carries the weight and gravity due process requires to protect the 

fundamental rights at stake.” Id.

“A correspondingly searching standard of appellate review is an essential 

procedural adjunct.” Id. “The distinction between legal and factual sufficiency lies in the extent 

to which disputed evidence contrary to a finding may be considered.” Id. “Evidence is legally

sufficient if, viewing all the evidence in the light most favorable to the fact-finding and 

considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or 

conviction that the finding was true.” Id. at 631. “Factual sufficiency, in comparison, requires 

weighing disputed evidence contrary to the finding against all the evidence favoring the finding.” 

Id. “In a factual-sufficiency review, the appellate court must consider whether disputed evidence 
13

is such that a reasonable factfinder could not have resolved it in favor of the finding.” Id. 

“Evidence is factually insufficient if, in light of the entire record, the disputed evidence a

reasonable factfinder could not have credited in favor of a finding is so significant that the 

factfinder could not have formed a firm belief or conviction that the finding was true.” Id.

IV. DISCUSSION

In her sole issue on appeal, Mother raises two arguments: first, that the evidence 

is legally insufficient to support the best-interest finding; and second, that the evidence is 

factually insufficient to support that finding. I disagree with the first assertion but agree with 

the second.

A. Best-Interest Standard

“[T]here is a strong presumption that the best interest of a child is served 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 relationship and the due process 

implications of terminating a parent’s rights to her minor child without clear and convincing 

evidence, ‘the best interest standard does not permit termination merely because a child might be 

better off living elsewhere.’” In re D.L.W.W., 617 S.W.3d 64, 81 (Tex. App.—Houston [1st 

Dist.] 2020, no pet.) (quoting In re J.G.S., 574 S.W.3d 101, 121–22 (Tex. App.—Houston [1st 

Dist.] 2019, pet. denied)). “Moreover, termination is not warranted ‘without the most solid and 

substantial reasons.’” Id. (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)). “In 

parental-termination proceedings, [the Department’s] burden is not simply to prove that a parent 

should not have custody of her child; [the Department] must meet the heightened burden to 

prove, by clear and convincing evidence, that the parent should no longer have any relationship 
14

with her child whatsoever.” Id. (citing In re K.N.J., 583 S.W.3d 813, 827 (Tex. App.—San 

Antonio 2019, no pet.)).

When deciding the best-interest issue, we consider the factors set forth in Holley 

v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976), which include the children’s wishes, the 

children’s emotional and physical needs now and in the future, any emotional or physical danger 

to the children now and in the future, the parenting abilities of any parties seeking custody, 

programs available to help those parties, plans for the children by those seeking custody, the 

stability of the proposed placement, the parent’s conduct indicating that the parent-child 

relationship is improper, and any excuses for the parent’s conduct. See also A.C., 560 S.W.3d at 

631; In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012); In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). 

It is the burden of the party seeking termination to establish that termination is in the children’s 

best interest. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The set of factors is not 

exhaustive, and no single factor is necessarily dispositive of the issue. See Holley, 544 S.W.2d at

371–72; In re A.B., 269 S.W.3d 120, 126 (Tex. App.—El Paso 2008, no pet.).

B. Legal Sufficiency

When evaluating a legal-sufficiency challenge, we consider all evidence weighing

in favor of the disputed finding and any undisputed contrary evidence. A.C., 560 S.W.3d at 630–

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

relationship, it is undisputed that Mother’s third child and Daughter were both born with traces 

of illegal substances in their systems. Mother relinquished her rights to Siblings in 2014 due to 

recalcitrant drug use. She tested positive for cocaine twice late in the pendency of the case, 

notwithstanding her awareness that drug use might prevent her from reuniting with Son and 
15

Daughter. And Son, at age four, was not yet properly toilet trained. This evidence suggests the 

parent-child relationship might not have been a proper one, that Son and Daughter might be 

exposed to danger, and that Mother may not be able to meet their physical or emotional 

needs. See, e.g., M.J. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00527-CV, 

2021 WL 1045727, at *10 (Tex. App.—Austin Mar. 19, 2021, no pet.) (mem. op.) (toilet 

training); 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. op.) (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 that evidence of substance abuse implicates multiple Holley factors).

With respect to the stability of the proposed placement and any plans that the 

placement might have for the children, both the Department and Father characterized the 

children as “thriving” in the placement. Applin testified that the children had “come a long way”

since removal and placement with the current foster family. Rothas testified that the family had 

arranged Son’s developmental screening and had plans for appropriate therapy for the identified 

developmental delay and behavioral issues. And it is undisputed that the current foster family 

was, at least at one point, considering adopting the children.

Based on this evidence, a reasonable factfinder could have formed a firm belief or 

conviction that termination of Mother’s rights is in the best interest of Son and Daughter. I 

therefore agree with the majority’s decision to overrule Mother’s legal-sufficiency argument.
16

C. Factual Sufficiency

I disagree with the majority with respect to the factual sufficiency of the evidence 

to support the best-interest finding. In examining the factual sufficiency of the evidence 

supporting a challenged finding, we “weigh[ ] disputed evidence contrary to the finding against

all the evidence favoring the finding,” see A.C., 560 S.W.3d at 631, to determine “whether 

disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the 

finding,” see id. If a reasonable factfinder could not have resolved the evidence in favor of the 

disputed finding, we must reverse. See S.G. v. Texas Dep’t of Fam. & Protective Servs., 

No. 03-21-00085-CV, 2021 WL 3437890, at *10 (Tex. App.—Austin August 6, 2021, no pet. h.) 

(mem. op.).

1. the children’s wishes

At trial, Rothas conceded that she did not ask Son or Daughter about their wishes

with respect to reunification or placement. However, Department records admitted into evidence 

indicate that Son and Daughter are “bonded and attached” to Mother and Father. That fact, when 

paired with the fact that the children had experienced four unsuccessful placements in the 

eleven-month pendency of the case, would support an inference that Son and Daughter might

wish to return to Mother and Father rather than wait for the Department to arrange yet another 

placement. See A.L.G.A. v. Texas Dep’t of 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 desire to remain in placement).
17

2. the stability of Mother’s and Father’s home

Other than the drug use already discussed, at no point during the pendency of the 

case did the Department or the ad litem express any concerns about Mother’s home, a 

two-bedroom apartment. Department records admitted into evidence reflect that both parents 

have a history of stable employment, with Mother having held the same job for three years. 

Mother and Father had been in a committed relationship for six years at intake, with no history of 

family violence. And while Father does have a history of criminal convictions, there was no 

evidence of a history of violence, and the convictions and resulting confinement occurred before 

the birth of Son and Daughter, his only children, thereby minimizing 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, under circumstances in which parent had completed 

parenting classes, insufficient to support finding that termination is in best 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 the past does not ipso facto prove that termination is currently in the 

child’s best interest.”); In re R.L., No. 04-13-00226-CV, 2013 WL 5508381, at *6 (Tex. App.—

San Antonio Oct. 2, 2013, no pet.) (mem. op.) (“The best-interest inquiry is a forward-looking 

determination.”); In re De la Peña, 999 S.W.2d 521, 532 (Tex. App.—El Paso 1999, no pet.)

(“[W]hile [father’s] past may not be stellar, it does not and should not preclude him from his 

parental role . . . .”). In addition, Mother’s and Father’s proximity to Grandparents allows Son 

and Daughter to interact with Siblings and provides additional stability for the household.
18

3. the stability of the proposed placement and plans for that placement

The Department’s conservatorship during the pendency of the case resulted in 

little or no stability for Son and Daughter. Records admitted into evidence, when combined with 

the testimony at trial, reveal that Son and Daughter had been placed four times during the nine 

months between June of 2020 and March of 2021, with two of those being family placements

and two being non-familial. At each new placement, the foster family initially expressed interest 

in adoption or a long-term arrangement before asking the Department to find a new placement.4 

Rothas testified that the current foster family was “still contemplating” whether to adopt Son and 

Daughter, but Applin had already testified that the family no longer wants to be considered as a 

possible adoptive home, and Rothas ultimately testified that she would like the Department to 

begin searching for a legal-risk home immediately.

The Department’s final report to the district court indicates that it would seek 

termination of Mother’s and Father’s parental rights and placement of Son and Daughter in a 

legal-risk foster home. Applin conceded at trial that such a home had not been identified and 

that Son and Daughter had “not yet” been added to the waiting list. When asked how long it 

would take to find a legal-risk foster home for Son and Daughter, Applin testified that she “can’t 

say” because “it just depends.” She did not deny that it could take several months before an 

appropriate placement is identified. In short, the Department’s proposal, 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 [1st Dist.] June 16, 2011, no pet.) (mem. op.) 

(observing “children’s uncertain future in regard to an adoptive placement” before holding 

evidence insufficient to support finding that termination is in best interest).

4 Aunt’s placement was disrupted when Aunt left Son and Daughter unattended in a car.
19

4. conduct indicating that the parent-child relationship is improper

As outlined in my legal-sufficiency analysis, the Department presented some 

evidence that the relationship between Mother and the children might not be proper, including 

the fact that Mother had used illegal substances during at least two of her five pregnancies and 

continued to use cocaine after Daughter was born. See A.C., 394 S.W.3d at 642 (holding 

evidence that mother “regularly used illegal drugs both during her pregnancy with the child and 

after undergoing a treatment program” to constitute evidence of an improper relationship). 

In addition, four-year-old son was not yet toilet trained at the time of trial. See M.J., 

2021 WL 1045727, at *10. Nevertheless, Father provided contravening evidence, including that 

he had completed parenting classes, that he was seeking out counseling for the relationship 

issues that had developed between himself and Mother, that Mother and Father love Son and 

Daughter very much and want them back home, and that Mother and Father are both committed 

to making themselves “better people” and “better parents” for the children.

5. any excuses for the parent’s conduct

With respect to any excuses for the inappropriate aspects of Mother’s relationship 

with Son and Daughter, there is evidence that someone had told Mother marijuana was safe to 

use during pregnancy. On the subject of the 2014 relinquishment of Siblings, she described 

herself as “too young” at the time to understand the seriousness of illegal drug use or the 

ramifications of her choices. And with respect to the cocaine relapse in March and April of 2020

while the case was still pending, Mother testified that no one had informed her that she has 

underlying psychological disorders that need to be addressed along with her addictions. She 
20

testified that she had voluntarily sought out another round of rehabilitation and had set 

appointments with additional professionals to start addressing those needs.

6. programs available

Because the Department has not identified a long-term placement for Son or

Daughter, the record includes very little evidence of any programs available to support the 

children’s next foster family. Rothas did offer testimony that the foster family’s local school 

district has started offering services to Son to address his speech and behavioral issues. 

Those services should remain available to anyone that obtains possession of the children. See

19 Tex. Admin. Code § 89.63 (2021) (Tex. Educ. Agency, Instructional Arrangements and

Settings). Mother testified that, should the children return to her, she would rely on physicians, 

counselors, her church, her parents, and her in-laws as sources of support.

7. the children’s emotional and physical needs and any dangers posed

In part because Son and Daughter are so young, the record reflects little evidence 

of their emotional and physical needs. There is some evidence that Son is suffering from certain 

developmental and behavioral issues. However, it is unclear whether those issues are transient or 

long term and to what extent those issues might have been caused or exacerbated 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 emotional and physical health and poses a potential danger to them. See F.A.R., 

2005 WL 181719, at *4. It is well settled, however, that a child’s “paramount” need is prompt, 

long-term placement in a safe and stable home. See Tex. Fam. Code § 263.307(a). Here, Father 

testified that he had “no doubt” that, with the counseling and rehabilitation he and Mother are 
21

pursuing, they can provide a safe, sober, drug-free long-term home for Son and Daughter. The 

Department, meanwhile, is unsure of the next placement for Son and Daughter or when such a 

placement will be available.

8. the parenting abilities of any parties seeking custody

The parties presented little evidence regarding Mother’s and Father’s respective 

parenting abilities. The fact that four-year-old Son was not yet fully toilet trained at the time of

trial may serve as some evidence of weak parenting abilities. And the Department admitted into 

evidence psychological evaluations performed on both Mother and Father. Mother’s report 

included a host of possible psychological diagnoses, some of which may impact her ability to 

parent, but as our sister court has explained:

[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 disabilities 

constitute evidence of Mother’s inability to provide for the children’s emotional 

or physical 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 did not provide for the children’s physical and emotional needs, 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 [14th Dist.] 2020, pet. denied) (en banc). 

Mother’s report included a conclusion that she is a “questionable parental resource.” Father’s 

report characterized him as a “potentially suitable parental resource.” The reports recommended 

counseling and therapy for both Mother and Father, and both offered undisputed testimony that

they had already sought out that treatment and were continuing to do so.
22

Conclusion regarding factual sufficiency

Viewing the evidence in a neutral light and weighing all the evidence under the 

governing standard, I would conclude the majority of the Holley factors militate against the 

best-interest finding in this case. The Department disagrees, relying heavily on Mother’s 

undisputed history of substance abuse and “instability” to argue that “the evidence allowed the 

trial court to reasonably form a firm belief or conviction that termination of [Mother]’s parental 

rights” is in Son’s and Daughter’s best interest. But while Mother’s history of substance abuse 

“is evidence that weighs in favor of the best-interest finding [and] a factor we carefully consider 

in reaching our conclusion, we cannot ignore all the other evidence and 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.). Instead, in conducting a

factual-sufficiency review, we must consider all the evidence relating to the Holley factors. See 

id. (citing In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006)).

Here, the undisputed evidence suggests Son and Daughter are bonded to Mother. 

At trial, Mother and Father testified of a plan to safeguard their own health and keep their

children safe. Other than drug use by the parents in March and April, the stability of the home is 

undisputed, whereas the Department is uncertain of its plans for the children. And both Mother 

and Father offered undisputed testimony of their diligent efforts to get the help they need to 

address any issues that might have undermined their ability to parent Son and Daughter in 

the past.

Perhaps of most concern is the fact that the Department did not attempt to obtain 

Mother’s rehabilitation records and that Son’s and Daughter’s guardian ad litem—the individual 

charged by the Legislature with “protecting a child’s best interest,” see Tex. Fam. Code 
23

§ 107.005(5), could not answer the most basic questions about the children or their best interest. 

She could not even recall the last time she had seen Son or Daughter. And while Rothas did 

inform the district court that she “fe[lt] like [she] need[ed] to address the Holley issue,” did not 

discuss the Holley factors. She testified that she believes termination of Mother’s and Father’s 

parental rights is in Son’s and Daughter’s best interest; however, conclusory statements such as 

these are not sufficient to support termination. See In re B.R., 456 S.W.3d 612, 617 (Tex. 

App.—San Antonio 2015, no pet.) (“[The Department]’s agreement that it was in the children’s 

best interest to terminate appellant’s parental rights and it was in their interest to ‘move on’ was

conclusory.”); In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.)

(holding that “conclusory testimony [regarding best interest], such as the caseworker’s, even if 

uncontradicted[,] does not amount to more than a scintilla of evidence.”). Therefore, cognizant 

of the constitutional concerns related to parental termination, the clear instructions from the 

Supreme Court of Texas that we strictly scrutinize termination proceedings, the strong 

presumption that preservation of the parent-child relationship is in the children’s best interest, 

and our obligation to consider all evidence equally, see L.C.L., 599 S.W.3d at 89; D.D.M., 

2019 WL 2939259, at *8, I would conclude based on the record before us that a reasonable 

factfinder could not have formed a sufficiently firm belief or conviction that termination of 

Mother’s parental rights is in the children’s best interest. Accordingly, I would hold that the 

Department failed to meet its burden at trial and would sustain Mother’s challenge to the factual

sufficiency of the evidence to support the district court’s best-interest finding.
24

V. CONCLUSION

I respectfully dissent in part from the majority’s opinion. I agree that the 

evidence presented is legally sufficient to support the trial court’s best-interest finding, but 

because the evidence is factually insufficient to support that finding, I would reverse the portion

of the district court’s decree terminating Mother’s rights to her children and remand for a new 

trial. Because they are not challenged on appeal, I would not reach the provisions of the district

court’s order terminating Father’s rights and appointing the Department as permanent managing 

conservator of the children. See Tex. Fam. Code § 263.404 (outlining findings necessary to

support appointment of non-parent managing 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 subsumed in her challenge of the termination decision” where parent “did not 

specifically appeal” the conservatorship or related findings).

__________________________________________

Edward Smith, Justice

Before Justices Goodwin, Baker, and Smith

Filed: December 15, 2021