This is an acc eler ated appea l pur suant to f amily code section 263.405(a)

. See Te x. F a m. 1 Code Ann. § 263.405(a ) (West Supp. 2006) (since Septe mber 1, 2001, an appe al from a final orde r te rm inatin g the pa

re nt- c hil d r e la tio ns hip and a pp oin tin g ano the r a s ma na g ingc on servat or is a c c e le rated and g ov e rn e d b y the ru le s f

or a c c e le rate d a

pp e a ls i n c ivi l c a se s) ; se e als o I n r e J .L. , 163 S.W .3d 79, 81-82 (Te x . 2005). A fina l order w as ente red in Apr il 2005 , and Ha rris appe aled to this C ourt that same month.

For rea sons not explained in the record, Harris’s counsel did not include the De partment’s or ig ina l pe tit ion

in t he re c or d b e fore us and

se e ms t o b e un de r t

he mis take n im

pr e ssi on that th is a pp e a l ari se s f

ro m H arr is’ s o wn

pe tit ion to m od if y the pa re nt- c hil d r e la tio ns hip wi th r e sp e c t to C.C .H . a nd no t f ro m th e De pa

rtme nt’ s p e tit ion

to t e rm inate pa

re nta l r ig hts

. 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 5 -00 244 -CV

Ra m ona Har r is , A ppe lla nt

v. Texas Depart m ent of Fam ily and P rote ctive Service s , Appellee

F ROM THE DISTRICT CO URT OF HAY S COUNTY , 207TH JUDICIAL DISTRICT NO. 00- 0684 -A , HO NORAB LE DONALD V. HAM MO ND , JUDGE PRESIDI NG

D I S S E N T I N GO P I N I O N

Iag ree that the trial cour

t may not contrave ne the jury ’s finding on the issue of the appointment of the sole mana g ing c onservator. See Tex. Fam. Code Ann. § 105.002( c)(1)(A) (West Supp. 2006). But this does not relieve us from o u r ro l e in reviewing the jury ’s ver dict for 1 leg al suffic iency . Be cause the jury ’s ver dict is leg all y i n s ufficie nt, it is err or to reve rse the tr ial

c ourt ’s or de r d isr e g ard ingthat ve rd ic t and re nd e r jud g me nt re mov ing thi s c hil d fr om fo ste r p a re ntsTh e re is a n in dic a tio n in the re c or d that Ha rr is ha d so me vis its wi th t he c hil d at th e tim e 2 of trial. F or re asons not in the rec ord, Ha rris wa s g ener ally

denied visitation. Ha rri s v . Te x as De p’ t of Pr ote c tiv e & Re

gu lator ySe rv s. , No. 03-01-00643- CV, 2003 3 Tex. App. L EXI S 2842 (Tex. App.—Austin Apr. 3, 2003, no pet.) (mem. op.)

. 2 with whom he has spent the last six y ear s and sending him stra ighta way to a pare nt with whom he has sp ent on ly

a ha nd fu l of ho ur s. H a v in g li n g e r e d in f o s te r c ar e f o r s ix y e ar s w h il e th e le g al 2 proce ss determines whe ther he will remain with his foster pa rents, who have a dopted his two older br oth e rs and

sis te r, thi s c hil d mu st b e the pa ra mou nt f oc us he re : What is in t

he c hil d’ s b e st i nte re st? L eg al proc eeding s have immutably altere d his life. Were we wr iting on a c lean slate , we would hope to provide this child—and h is p a r e nt— with what the leg islature conte mplated: a fa ir and e x peditious pr oc e e din g wi th s e c ur ity , c on tin uit y , s ta bil ity , c e rt a int

y , a nd fi na lity a t it s c on c lus ion . B ut t

he slate is not clean. After

a trial i n Oc t o b er 2001, this Court i n April 2003 aff irmed the ter

mination of Har ris’s rig hts to her three other minor childre n, M.H., C.D., and K.D. The De partment a lleg ed and 3 pr ov e d th a t th e pa

re nts :

Kn o wi ng ly

place d or knowing ly

allowed the c hildren to rema in in conditions or surrounding s which enda

ng ere d the phy sical or emotional well-be ing of the childre n in violation of Tex. Fam. Code Ann. § 161.001(1) (D) ( West 2002), and En g a g e d in

c on du c t or

kn ow ing ly

pla c e d th e c hil dr e n with pe rs on s who e ng a g e d in c on du c t w hic h e nd ang e re d the ph y sic a l and e mot ion a l we ll- be ing of the c hil dr e n in violation of Tex. Fam. Code Ann. § 161.001(1) (E) ( West 2002).

See Te x. F a m. C od e Ann. § 1 61 .0 01 (1) (D)- (E). Thi s Co ur t ob se rv e d th a t th e ri g hts of Ron a ld Wil liams, M.H.’s fathe r, we re te rminated, but he did not appe al; nor had St even D ietrick, the f atherFor rea sons not in the recor d, Har ris’s par ental rig hts as to C.C.H. were se vere d and tried 4 se pa rate ly and are no w the su

bje c t of thi s se pa rate a pp e a l. See Tex. F am. Code Ann. § 263.405(b), ( d) (West Supp. 2006) ( enacte d by Act of Ma y 22, 5 2001, 77th L eg ., R.S., ch. 1090, § 9, 2001 Tex. Gen. L aws 2397, 2397-98, e ffe ctive Sept. 1, 2001, amende d byAct of Ma

y 12, 2005, 79th L eg ., R.S., ch. 176, § 1, 2005 Tex. Gen. L aws 332).

3 of C.D. and K.D , or C l ei ffor t Cooks-Harr is, whose rig hts were terminated a s to the child, C.C.H., who is the subject o f t h e cu rr ent proc eeding

. Harris v. Texas De p’t of Protective & Re gu lator ySe rv s. , N o. 03 -0 1- 00 64 3- CV , 2 00 3 T e x. Ap p. L EX I S 28 42 , a t *3 -4 (T e x. Ap p. —A us tin Ap r. 3, 20 03 , no pe t.) (m e m. op. ). Th e status of C.C .H . w a s n ot a

t is su e in t he pr ior a pp e a l. Among

4 the is s u e s in th e p r io r a p p e a l w a s H ar

r is ’ s mo ti o n f

o r c o n ti n u an c e w h ic h th e tr ia l c o u rt ha d

overr uled. This Court noted that the appe al was c ontrolled b y t h en re cently enac ted proc edure s requiring a finding by the t rial court reg arding the m erits of the appea l and that th e “ c a se wa s a lit tle 5

over a month a

way from dismiss al under an alre ady extended deadline.” Id. When Harr is sought a continuanc e, the De partment urg ed t h at a co n t inuance raised the risk that the ca se would not be hear d in time for the statutory deadlines to be met, there by resulting in its di smissal. I n her se cond iss ue , H arr is c on te nd e d th a t th e c a se of e a c h o f t he thr e e fa

the rs sh ou ld be se ve re d a

nd se pa rate d in to a diffe rent c ause and tried separ ately . This Court rejec ted the issues and a ffirme d the termination of Ha rris’s pa renta l rig hts to her three older c h ildren on the g rounds of fa mily code se ctions 161.001(D) a

nd (E). The instant appe al ar ises from the se vere d cause involving the ter mination of Harr is’s pare ntal rig hts as to C.C.H. The Depa rtment alleg ed the following three g rounds for te rmination of Har ris’s par ental rig hts as to C.C.H.:At a hearing for the purpose of rende ring a fina l order on Ma rch 18, 2005, the attorney ad 6 lit e m w a s n ot p re se nt a

nd ha d n oti fi e d th e c ourt

that h e wa s se ri ou sly

ill and wo uld be un a ble to 4 That Ha rris knowing ly

place d or kno wi ng ly

allowed C.C.H. to rema in in conditions or surrounding s which enda

ng er the phy sical or emotional well-be ing of the child in violation of sec tion 161.001(1)(D) ; Th a t Harr is en g a g e d in con du c t or kno wi ng ly pla c e d the c hil d with pe rs on s who e ng a g e d in conduct whic h endang ere d the phy sical or e motional well-being of C.C.H. i n v iolation of section 161.001(1) (E); a

nd Th a t H arr is h a d h a d h e r p are nt- c hil d r e la tio ns hip t erm in ate d w ithre sp e c t to ano the r c hil d ba se d o n a

fi nd ingtha

t her c on du c t w a s in

vio la tio n o f s e c tio n 1 61 .0 01 (1 )( D) or (E ) i n violation of section 161.001(1)( M).

See Tex. Fam. Code Ann. § 161.001(1)( D)-( E), (M) (West Supp. 2006). At the end of a contentious trial, the cour

t instructed the jury

that, for the pa

rent-c hild relationship to be terminated, one of the g rounds must be proven by clea r and c onvincing evidenc e and, f urther, that the jury

must find that the termination is in the best interest of the child. See id. § 1 6 1

. 0 0 1

. In a s e c o n d qu e s t i o nt o t h e j u r

y, the cha rg e inquired w hether

the Department or Har

ris should be desig nated the pe rmane nt manag ing

conser vator; the jury

was instructe d that the answe r to the quest i o n s h ould be base d upon a preponde ranc e of the evidenc e.

Af te r t he jur y re tur ne d a ve rd ic t fi nd ing that Ha rr is’ s pa re nta l ri g hts to C.C .H . s ho uld not be terminate d and that Ha rris should be name d manag ing c onservator, t he De partment filed a motion for new t rial on the ground that the j ury ’s answer to the m anag ing conservator question was ag ainst the g reat weig ht and prepondera nce of the evidence, manifestly unjust, and not in the child’s be st i nte re st. Th e De pa

rtme nt s ou g ht a

ne w tri a l in

the int e re st o f j us tic e and fa ir ne ss. On be ha lf of the c hild, the attorney ad litem filed a moti on to desig nate the D epar tment as manag ing 6attend. Ha rris’s attorney

objected to a

ny further postponement and obser

ved that the attorney

had not filed any post-trial motions. I n fac t, the attorney ad li tem’s m otion to desig nate the Depar tment as manag ing c onservator of the chil d was filed on the date of the hea ring . I n any

event, on Apr il 1, 20 05 , a se c on d atto rn e y

a d li te m w a s su

bs tit ute d f or the or ig ina l a tto rn e y ad li tem , who die d in J uly 2005. T h e rec ord does not show that the se cond attorne y ad litem ever

appea red in a p ro ce ed i n g. 5 conser vator. Citing the best interest of the c hild, C.C .H.’s attorne y reminded the court that Ha rris’s pare ntal rig hts to her three older c hildren had be en ter minated on enda

ng erme nt gr ounds, that Har ris’s t hera pists had testi fied that she admit ted t o a his tory of alcohol and drugabuse, that she had a history of assoc iating w ith and having relationships wit h individuals wi t h cr i m i n al records, that t h e pare ntal rig hts of the child’s fathe r had been terminated and he had been jailed for vi o l at i n g a protec tive order , that b o t h pare nts had violated the prote ctive orde r lea ding to the f ather ’s incar cer ation, and that the c hild had lived his en t ire life in the home of foster pare nts who had

a do pte d h is thr e e old e r s ibl ing s. C.C .H .’ s atto rn e y ur g e d th a t th e De pa

rtme nt b e name d s ole manag ing c onservator for the sake of the child’s saf

ety and we ll-bein g, an d t h at Har ris be name d possessory

conser vator. At a hearing held on April 1, 2005, the court set aside the jury ’s finding on the issue of conse rvatorship a

nd, in acc ordanc e with the attorney ad li tem’s m otion, appointed the Depa rtment as the sole mana g ing c onservator of the c hild. The trial court entered a final order confirming the jury ’s finding that Har

ris’s par ental rig hts were not terminated a nd concludingthat the jury ’s finding that Har ris be name d sole manag ing c onservator in stead of the Depa rtment was a g ainst the g reat weig ht of the evide nce a

nd not in the best interest of the c hild. Specifica lly , the court render ed the following order :Perhaps this is the rea son Harr is failed to include the D epar tment’s petition for termination 7 as to the four

children—but seve red a s to C.C .H.—in the re cord on a ppeal. Se e su

pra note 1. 6 The Court orde rs that the finding of t h e j u ry t h at i t is not i n the best intere st of the subject child that the D ep ar t ment of Protective a nd Reg ulatory

Service s be name d Manag ing Conser

vator of said child is ag ainst the g reater we ight a nd deg ree of the cre dible evidenc e herein and is not in the best interest of the s ubject child, and such finding is set aside. On appe al, Har

ris attacks the trial court’s order by first contending

that this case wa s broug ht by Har

ris as petitioner in a suit to modify the pare nt-child relationship, t hat the “D epar tment

never made a ny aff irmative plea dings or

reque sts for re lief in this act ion,” and “ never [re]quested termination in this case.” I f, howe ver, this we re an appeal fr om Harr is’s petition to m odify , she 7 would have ha d the burden to show that the modification wa s in the best interest of the child and that the c ir c ums tanc e s of the c hil d, the c on se rv a tor , or ano the r p art y a ff e c te d b y the or de r h a d mate ri a lly

an d substantially

chang ed since the re ndition of the order

. See id. § 156.101 (West Supp. 2006). Contrar y to H arr is’ s a sse rt ion , th is a pp e a l ari se s f

ro m a su it f or te rm ina tio n o f p are nta l r ig hts

. B e c a us e Ha rr is n e ve r a dd

re sse s th e iss ue s a s th e y

re la te to t

he pe tit ion

to t e rm inate and

fa ils to include the pe tition and appropriate citations to authorities and to the rec ord, I would hold first that she has not pre serve d err or and doe s not present a ny thing f or re view. See Tex. R. App. P . 38(h). The c y nosure of

Har ris’s appe al and the ma jority opinion i s t h at the trial court err o n eo u s ly

disreg arde d the jury ’s answe r to question two by naming the Depa

rtment as manag ing c onservator in violation of s ec t i o n 105.002 of the fa mily code. T o be sure , section 105.002 require s the trial judg e to abide by the jury ’s deter

mination on the issue of manag ing

conser vatorship. T ex . Fam. Code Ann. § 105.002. The c ourt may not enter a

judgme nt7

notwithstanding the ve rdict. Lenz v. Lenz , 79 S.W .3d 10, 20 (Tex. 2002). But that is not the end of

our r e vie w. Th e jur

y fi nd ingis bin din g up on

the c ourt on ly wh e n s up po rt e d b y

the e vid e nc e a s in any other c ivil action where the parties have a rig ht of trial by

a jury

. Id. ; see also In reRodriguez , 94 0 S.W. 2d

26 5, 27 1 ( Te x. Ap p. —Sa n A nto nio 19 97 , w ri t de nie d) ; Fa mb ro v . F am br o , 635 S.W .2d 945, 947 (Tex. App.—For t Worth 1982, no writ). Thus, the appropriate challeng e mus t be directed to a tra ditional sufficienc y revie w: I s the evidenc e leg ally and factually sufficie nt to support the j ury ’s finding that appointing H arr is as t h e c h i l d ’ s m an a g i n g c o n s e r v a t o r w a s i n h i s b e s t i n t e r e s t ? Lenz , 79 S.W .3d at 26-27. Rec og nizi ng the str on g pr e su mpt ion

that th e be st int e re st of the c hil d is g e ne ra lly se rv e d b y pr e se rv ingthe pa

re ntc hil d r e la tio ns hip and

g ivi ngthe jur

y ’s de c isi on

su bs tantia l de fe re nc e in a c c or da nc e wi th our standar ds of re view, I would hold that th e ev i dence is leg ally insufficient to support the jury ’s ver dict and, instead, suppor ts the trial court’s disre g ard o f t h e j ury ’s finding reg arding manag ing c onservator.

I n de te rm ini ng the iss ue of c on se rv a tor sh ip, “ [t]he be st int e re st of t he ch ild

s h al l al wa y s b e t h e p ri m ary co n s i d er at i o n . ” T ex . Fa m . C o d e An n . § 1 5 3

. 0 0 2 (W es t2 0 0 2 ). Al t h o u gh the majority sets forth the appropr iate standard for a leg al sufficie ncy challeng e to t h e q u est ion of conse rvatorship, it fails to examine the evidenc e as it re lates to t h e b es t i ntere st of the child. Be cause the evidenc e re g ardingtermination also contemplate s the best intere st of the child, see Tex. Fam. Code Ann. § 161.001( 2), it bear s a substantial relationship t o the trial cour t’s disreg ard of the jury ’s finding on conser vatorship. In re J

.F .C. , 96 S.W .3d 256, 264-65 (Te x . 2002).8 On e of the thr e e g ro un ds a lle g e d b y the De pa rtme nt w a s th a t H arr is’ s p are nt- c hil d relationship wa s terminated with r espec t to a nother c hild based on a f

inding that he r conduc t violated

se c tion 16 1. 00 1(1 )(D) or (E ) i n th a t sh e kn ow ing ly pla c e d o r a llo we d th e c hil d to re ma in i n conditions or surrounding s which enda ng er the phy sical or e moti o n al well-being of the child, or she eng ag ed in conduct or knowing ly place d the child with persons who e ng ag ed in conduc t which endang ers the phy sical or e motional well-being of the c hild. See Tex. F am. C o d e Ann. § 161.001(1)( M). A cour t may order termination if the fa ctfinder finds by clea r and c onvincing evidenc e that the pare nt-child relationship wa s terminated with r espec t to another c hild based on a finding of child enda

ng erme nt under sec tion 161.001(1)(D) or (E) or a substantially equivalent provision of another

state’s law

. Id . Wh e n a pr ior de c re e of

te rm inatio n a s to anothe r c hil d is proper ly admitted into evidence , the Depa rtment is not required to r e-e stablish that the pare nt’s conduct with respe ct t o that child was in violation of section 161.001(1)( D) or ( E). In re J .M.M. , 80 S.W .3d 232, 243 (Tex. A

pp.—For t Worth 2002, pet. denied) . The De partment ne ed only show that the par ent’s rig hts were terminated a s to the other child base d on the appropr iate finding s. Id . at 242- 43 ; se e als o Tex. Fam. Code Ann. § 161.001(1)( M). Thus, section 161.001(1)(M) is a sepa rate and independe nt gr ound for ter mination:

The c ourt may

order termination of the pa

rent-c hild relationship if the court finds by clea r and c onvincing evidenc e: (1) that the par ent has: . . . (M) had his pare n t -c h ild relationship terminated with re spect to anothe r child based on a finding that the parent’s conduct was in vi olation of Parag raph ( D) or ( E) or substantially equivalent pr ovisions of the law in another state

.Henc e, the major ity observe s that most of the Depa rtment’s evide nce r elated to Ha rris’s 8 behavior with he r older children beca use the Depa

rtment remove d C.C.H. the day afte r his birth. A fi nd ingof pa re nta l c on du c t e nd ang e ri nga c hil d ma y als o be ba se d o n th e pa

re nt’ s c on du c t w ith r e g ar d to th e c h il d ’ s s ib li n g s p r io r to th e child’s bi rth. See, e .g. , Dallas County Chi ld Protective Servs. Unit v. Bowling , 83 3 S.W. 2d 73 0, 73 3- 34 (T e x. Ap p. —D a lla s 1 99 2, no wr it) (s e xua l a bu se of oldest son befor e birth of c hild in question was evidence of cour se of co nduct that enda ng ere d y oung er c hild); Cla rk v . Clar k , 705 S.W .2d 218, 219 (Tex. App.—Dallas 1985, wr it dism ’d w.o.j.). A petition to terminate may be filed be fore a child is b o rn . T ex . Fa m . Code Ann. § 161.102 (West 2002). Conduct that occur red be fore the child’s birth may b e co n s i d ered in determining whether a par ent has e ndang ere d a child. In re S.F. , 3 2 S. W.3 d 3 18 , 3 22 (T e x. Ap p. —Sa n A nto nio 20 00 , n o p e t.) ; In re M. J

.M .L. , 31 S.W .3d 347, 351-53 (Tex

. App.—San Antoni o 2000, pet. denied)

. Moreove r, conduc t directe d at another child may

be suff icient t o demonstrate a

course of conduc t that e nd a ng e re d a c hil d’ s e mot ion a l w e ll- be ing even if the a bu siv e c on du c t w a s n ot c omm itt e d in the chil d ’s presence

. E.g. , In re B.B. , 971 S.W .2d 160, 169 (Tex. App.—Be aumont 1998, pe t. d e nie d) ; Luc as v . Te x as De p’ t of Pr ote c tiv e & Re

gu lator ySe rv s. , 9 4 9 S. W. 2 d

5 0 0 , 5 0 3

- 04 (Tex. App.—Waco 1997, writ denie d) (f ather endang ere d all his children when he sexually assaulted one of the m). Even apar

t f rom the evidenc e involving other c hildren, howe ver, the termination of another child and its proof at this t rial is conclusive e vidence of a gro u n d for ter mination under section 161.001(1) (M). 9 Tex. Fam. Code Ann. § 161.001( 1)(M).

The De partment introduce d into evidence a ce rtified copy of t h e fi n al order dated November 14, 2001, terminating Har ris’s parental rights to other children. Har ris did not controvert this evidence . This evidence thus constitutes undisput ed conc l u s i v e evidence of a violation of

s ec tion 161.001(1)(M). See City of Keller , 1 6 8 S. W. 3 d a t 8 1 5

- 1 6

. We ma y n o t d is r e g ard it. See Provident Am. In s. Co. v. Castaneda , 988 S.W .2d 189, 190 (Tex. 1998). We must consider undisputed evidenc e t h at d o es n ot support the verdic t and set aside the jury ’s deter mination if we find the jury ’s dec ision to be unreasona ble or we find undisputed evidenc e that does not support the jury ’s dec ision. See City of Keller , 168 S.W .3d at 821 (if the e vidence allows only one infe renc e, we may not disreg ard it). L ikewise, we m ay n o t d i s re gard the leg islative choice to provide in the statutory scheme section 161.001(1)( M) as a g round for termination. The undisputed evide nce that

8I n a suit for termination of pare ntal rig hts, f amily code section 161.205 authorizes the cour t 9 to either de ny the petit ion or render any order in the best interest of the child. Tex. Fam. Code Ann. § 161.205 (West 2002). Moreove r, section 263.404 expressly authorizes the t rial court to enter a n order appointing the Depa

rtment as mana g ing conservator without terminating pare ntal rig hts if the tr ia l c ourt fi nd s th a t a

pp oin tme nt o f a

pa re nt a s ma

na g ingc on se rv a tor wou ld not be in t he be st interest of the child’s beca use i t would signific antly

impair the child’s phy sical hea lth or emotional development. Id. § 263.404(a) (West 2002)

. I n light of the jury ’s dec ision not t o terminate H arr is’s pare ntal rig hts, the trial court’s disre g ard of t h e j ury ’s finding on conser vatorship and pr esumed fi n d i n g t hat it was not in the best intere st of C.C.H. to appoint Harris as mana g ing c onservator comports with the cour

t’s authority

under se ctions 161.205 and 263.404.

10 Har ris’s par ental rig hts to other children ha d been te rminated c onclusively establishes a g round for te rm inatio n that su

pp or ts the tr ia l c ourt ’s dis re g ard of the jur y fi nd ing . B e c a

us e thi s e vid e nc e a lso

con s ti tute s u n d is p u te d e v id e n c e th a t H ar r is ’ s p ar e n ta l r e lati o n s h ip e n d an g e r e d th e s a f e ty o f her children a

nd that termination was in their be st interest, see Tex. Fam. Code Ann. § 16 1 .001(2) (i n te rm inatio n p ro c e e din g , c ourt mus t f ind te rm inatio n is in t

he be st i nte re st o f t

he c hi ld), it i s conclusive a s well on the finding of best int er es t as it relate s to the issue of C.C.H.’s

conser vatorship. For

this reason, the e vidence relating to g rounds for termination is releva nt to the 9 i s s u e o f c o n s e r

v a t o r s h i p . B u t I w i l l n e v e rt h e l e s s e xam i n e s e p ar a t e l y t h e e v i d e n c e r e l a t ing to C.C .H .’ s b e st i nte re st.

Appellant asse rts that the trial cour t failed to addr ess the issue of the best i ntere st of the child in its final or der. A consideration of the best intere st of the child must be viewe d in light

o f t h e v arious fa ctors that ca bin the jury ’s and tria l court’s de terminations. The c harg e instructed the jury to consider the Holley fac tors in determining the best i n t er es t o f t he child. See H olley v. Adams , 544 S.W .2d 367, 371-72 (Tex

. 1976). These fac tors include the de sires of the c hild; the emotional and phy sical nee ds of the child, now a nd in the future; the emotional and phy sical dang er11

to the child, now and in the f uture; the pa

renting ability

of the individ u als seekingcustody ; the prog rams available to a ssist those individuals to promote the best interest of the child; the plans for the child of t hose i ndividuals or by the age ncy seeking custody ; the s tability of the home or

proposed pla c e me nt; the a c ts o r o mis sio ns of the pa re nt t hat ma y ind ic a te th at the e xistin g pa re nt- c hil d relationship is not a proper one; and any excuse for the acts or omissions of t he par ent. See id. In 1993, the leg islature codif ied those fa ctors identified in Holley and incor porate d additional fac tors fo r c ourt s to c on sid e r wh e n re vie wi ng the pla c e me nt of c hil dr e n und e r t he c are of the De pa rtme nt. See Tex. Fam. C ode Ann. § 236.307 (West 2002). Section 263.307 provides the f ollowing f

actor s for de termining the best intere st of the child: (1 ) the c hil d’ s a g e and ph y sic a l and

me nta l vu lne ra

bil iti e s; (2 ) the fr e qu e nc y

and natur e of ou t- of -h ome pla c e me nts ; (3) the mag nitude, fre quency , and cir cumstance s of the har m to the child; (4) whether the child has bee n the victim of repe ated ha rm afte r the initial repor

t an d i n t e r v e n t i o nb y t h e d e p art m e n to r o t h e r a g e n c y; (5) whether

the child is fea

rful of living in or retur

ning to the c hild’s home; (6) the re sults of psy chiatric , psy cholog ical, or developmenta l evaluations of the c hil d, the c hil d’ s p are nts , o the r fa mil y me mbe rs , o r o the rs wh o h a ve a c c e ss to the child’s home; (7) whether

there is a history

of abusive or

assaultive cond uct by

the child’s family or others w ho have a cce ss to the child’s home; (8) whether

there is a history of subs tance abuse by the child’s family or others who have acc ess to the child’s home; (9) whether

the per petrator of the ha

rm to the child is identified;12

(10) the willingne ss and ability of the c hil d ’s family

to seek out, ac cept, a

nd complete c ounseling service s and to coope rate with and f acilit ate a

n appropr iate ag ency ’s close supe rvision; (11) the willingne ss and ability of the c hild’s family to effe ct positive environmenta l and per sonal cha ng es within a re asonable period of time; (12) whether

the child’s family demonstrates adequate parentingskills, i ncluding providing the child and other children unde r the fa

mily ’s ca re w ith: (A) minimally

adequate hea lth and nutritional care ; (B ) car e, n u rt u ra n ce , an d ap p ro p ri at e d i s ci p l i n e c o n s i s t ent with the child’s ph y sic a l and

ps y c ho log ic a l de ve lop me nt; ( C ) g u i d an c e an d

s u p e r v i s i o nc o n s i s t e n tw i t h t h e c h i l d ’ s s a f e t y; (D ) a sa fe ph y sic a l ho me e nv ir on me nt; (E) protec tion from repe ated e x posure to violence even thoug h the violence ma

y not be direc ted at the c hild; and (F ) an under standing of the c hild’s needs a nd capa biliti es; and (1 3) wh e the r a

n a de qu a te so c ia l su

pp or t sy ste m con sis tin g of

an e xten de d f

a mil y and fr iends is available to the c hild.

Id. Un de r a

le g a l su ff

ic ie nc y rev ie w, we re vie w t he e vid e nc e in t

he c on te xt of

the se fac tors, considerin g as we must only the evidenc e and inf

ere nces te nding to support the jur y ’s finding and di s re gar d i n g all evidenc e and inf ere nces to the c ontrary . Noticea bly absent fr om Harr is’s pr oo f— and

the ma jor ity op ini on —is any e vid e nc e re la tin g to t

he c hil d’ s b e st i nte re st. I n a g lancingref

er en ce to the child’s best intere st, the majority ref ere nces the rebuttable presumption that it is in C.C.H.’s be st inter est to be raised by his natural par ent, Har

ris’sThe plea barg ain ag ree ment and judgm en t and sente nce w ere introduced into evide nce. 10 13 asser tion that she had stable e mploy ment for ove r t wo y ea rs , Har ris’s denial of

drug use, and testimony by witnesses that they

had neve r seen Har

ris use drug s or act as though she was unde r the influence of an illeg al drug . I ndeed, the testimony reg ardingwhat wa s in C.C.H.’s best interest wa s sp ars e . T he re c or d s ho ws tha t H arr is n e ve r t e sti fi e d to wha t would b e in t he c hil d’ s b e st i nte re st; rathe r, she testified g ener ally that she did not believe the foster pa rents, the CASA vol u n t ee r, and the g ua rd ian a d li te m w e re a c tin g in t he c hil d’ s b e st i nte re st. But ther e wa s ample testim o n y contra ry to the jury ’s finding to support the trial court’s disre g ard of

that finding . L eslie Ontiveros , a s u p ervisor of

investigations for Child P rotec tive Se rv ic e s for Ha

y s a nd Ca ldw e ll Co un tie s, te sti fi e d th a t sh e fi rs t be c a me inv olv e d w iththe fa mil y in October 1999. The Depa

rtment had rec eived a ref

err al for the sexual abuse of C.D., Ha rris’s seve ny e ar- old da ug hte r, by Ha rr is’ s th e n b oy fr ie nd , D ann y Go nza le s. C.D . mad e an o utc ry state me nt t o a tea cher . But Ha

rris di d not believe her daug hter and acc used her of “making the story up.” Dur ing her te stimony , Har

ris acknow ledg ed that she did not think the ac cusations wer e leg itimate and that C.D. was not honest. She thoug ht C.D. was proba bly mad bec ause H arr is had left C.D.’s father a nd C.D. was a “ daddy ’s g irl.” When confr onted with the “story ,” Gonzales did not protest the alleg ations and later

pleade d g uilty to indece ncy with a child, to wit, C.D. Har ris acknow ledg ed 10 that she took the childre n, including C.D., to jail to visit Gonzales once or twice. She a g ree d it was

a po or c ho ic e , bu t sh e “ wa nte d ans we rs ” and tho ug ht G on zal e s w a s th e on e wh o c ou ld p ro vid e the m. Har ris thought it would be safe to take the children to the jail be cause jailhouses are safe an d s he couldn’t find anyone to kee p the childre n.14 Testifying on he r own da ug hter’s be half, Ka

ren B ry ant, Har

ris’s moth er , testified that sh e and

Ha rr is tho ug ht C .D . h a d a lso be e n a bu se d b y Ha rr is’ s fi rst hu sb and a s w e ll b e c a us e C.D . “ wa s e xhibi tin g so me be havio rs ” that a pp e are d to be fr om ab us e . Br y ant t e sti fi e d th a t H a rr is ha d b e e n a

bu se d as a

c hil d b y B ry ant’ s se c on d hus ba

nd and ha d b e e n to nume ro us the ra pis ts

and c ouns e lor s.

The De partment re ceive d a sec ond re ferral for neg lectful super

vision of the three children in May 2000. Ontiveros testified that she rec eived infor mation from law e nforc ement that Har ris fre quented a

known cr ack house in San Marcos a nd t h at a sex offe nder a lso resided at the residenc e. Ontiveros tried to visit with the children at school, but one had be en suspende d and the oth e r c ou ld n ot b e loc a te d at sc ho ol o n th a t da y or the ne xt. C.D . co nf

ir me d to On tiv e ro s th a t H a rr is allowed the c hildren to have contac t with the k n o wn s ex offe nder. A t trial, Harr is introduced

e vid e nc e tha

t th e se x off

e nd e r w a s no t c on vic te d un til 20 02

. Al tho ug h On tiv e ro s te sti fi e d that H a rr is

was c autioned about him ea rlier, Ha rris testified that she should not be c harg ed with knowledg e of his sex -off

ender status prior to his conviction. Ontiveros testified that whe n she re ceive d inf or ma tio n th a t H arr is w a s v isi tin g a kn ow n c ra c k ho us e and ha d fr ie nd s ov e r t o h e r r e sid e nc e to

use cra ck, she went by Har ris’s house to c heck on the children. After speaking with t h e c h ildren, On tiv e ro s r e mov e d th e c hil dr e n w he n H arr is r e fu se d a dr ugte st. Ontiveros ac knowledg ed that Ha rris tested positive for marijuana on one occ asion, and that she w as uncoope rative a nd ref used to be teste d on numerous occ asions. Har ris did not believe she had a dr

ug or alc ohol problem and wa s resistant to participat i n g i n drug and alc ohol

sc re e nin g and

tr e a tme nt. Ha

rr is part ic ipate d in some ps y c ho log ic a l c ouns e lin g , p are nti ngc la sse s,15

and visits with her children, but she failed to c omplete her thera py and did not follow throug h on her vis its wi th the c hil dr e n. On tiv e ro s te sti fi e d that “ [s]he wa s ve ry c on fr on ta tio na l in my de a lin g s w ith her” and wa s ang ry

that CPS was involved. Har ris’s third husband, Cleiffor t Cooks-Harr is, whose par ental rig hts to C.C .H. wer e terminated in 2001, testified that Har ris obtained a pr otective or der a g ainst him in J anuar y 2004 and that he ha d be e n arr e ste d on tw o oc c a sio ns fo r vio la tin g the or de r. Th e or de r aro se ou t of a dis pu te be tw e e n Coo ks -H arr is and Ha rr is ov e r his inv olv e me nt wi th ano the r wo man and Ha rr is ta pin g his tel ep h o n e c al l s wi t ht h e w o m an . T h er e w as a p h y s i ca l al t er ca t i o n , C o o k s -H arri s p u l l edt h e t el ep hone out of the wa ll, and Har

ris called the police and le ft to stay in a woman’ s shelter. A CPS investigator te sti fi e d tha t Cook s- Ha

rr is pul le d the te le ph on e awa y fr om Ha rr is, c a us ing the c or d to bre a k a

nd pu ll fr om t he wa ll, and

c a us in g an in

jur y to o ne of the c hil dr e n. Coo ks -H a

rr is c omp la ine d th a t H a rr is p u l l ed h i s h air out. Ha

rris dec ided to file for

divorce and to obtain a pr otective or der. The order inc lud e d th e fo llo wi ngfi nd ing s:
Th e Court

fi nd s th a t th e Re sp on de nt h a s c omm itt e d f a mil y vi ol e nc e a g a ins t a me mbe r o f t

he ho us e ho ld a

nd that f a mil y vio le nc e is lik e ly

to o c c ur in t he fo re se e a

ble future. Th e Court

fi nd s the re is a

c le ar a nd pr e se nt d ang e r t

hat a c ts o f f

a mil y vio le nc e wi ll be committed in the future

. Th e Court fi nd s tha t the Ap pli c ant an d/o r oth e r me mbe rs of the fa mil y or ho us e ho ld will suffer immediate and irre para ble injury , loss or d amag e for which ther e is no adequate re medy

at law. The Court finds that the . . . Protec tive Orde rs a re n ece ssary for the pr evention of family violence a

nd are for the sa fe t y an d welfa re a nd in the best interest of the Applicant and for the protec tion of the minor children and other m em b er s o f t he family or household.16

Cooks-Harr is testified that from time to time he would baby sit for Har ris when sh e n ee ded a b a b y s i t t e r . H e w a s ar

r e s t e d t w i c e f o r v i o l a t i o no f

t h e o r d e r an d w a s i nj a i l a tt h e t i m e o f t r i a l

. In addition, Cooks-Harr is had a 1981 c on v i ct i o n for ag g ravated assault, wa s unemploy ed, and ha d a prior prote ctive orde r ente red a g ainst him in 1992. He testified that he wa s unawa re of the re ason for the pr otective or der, that perha ps his wife would know. I n her te stimony , Har

ris testified t h at s h e ca lled the police be cause her husba nd “cha lleng ed” he r and obta ined the protec tive order as a conseque nce of her ang er. She ha d filed for div o rc e fr o m Cooks-Harr is and ac knowledg ed that she w ould invite him t o baby sit despite the pr ote c tiv e or de r, wh ic h she c la ime d she ha d tri e d to lift

. Ha rr is expl a ine d tha t “ Iwa s mo re a fr a id of the State than I

was my own husband” and she w as sca red CPS “was c oming.” Kelly Rag land, a CPS investigator in the conservatorship unit who re place d another

w o r k e r w i t h w h o m H ar

r i s h a d a d i f f i c u l tr e l a t i o n s h i p , t e s t i f

i e d a b o u te f f o rt s t o r e u n i t e t h e f

a m i l y. Rag land desc ribed he r ef

forts t o keep Harr is involved with therapy , drug and alc ohol treatment, a nd visits wit h her c hildren despite Ha rris’s re sistance to ther apy , and “oppositional” a nd confr ontational approa ch to C PS i nvolvement. Rag land testified about he r numerous e ffor ts to have Ha

rris attend thera py and visit her childre n:

Iwould call the house to let her know thing s like the children ha d been move d from one plac ement to another

or to let her know

that we had visits sche duled for he r. She would hangup the phone on m e, s h e would tell me not to call her home any

more. Mr. Harris would g et on the phone and say that we were never to call their home. I would send letters to the house to tr y to e x plain, y ou know, what ne eded to ha ppen as fa r as wha t she nee ded to do. And s he would occasionally call me ba ck and she would leave me m essag es y elling on the phone. I t was very , very difficult to work wi th M rs . H arr is.17

Ra g land te sti fi e d th a t H arr is i nit ia lly re fu se d to vis it w iththe c hil dr e n unle ss t he y we re a ll p re se nt, which was difficult beca

use, at the beg inning, they wer e ea ch in diffe rent foste r homes or tre atment

c e nte rs . Wh e n Rag lan d could a rr ang e to h a ve a ll f

our c hil dr e n p re se nt a

t th e same tim e , H a rr is would then visit. On one occ asion when Rag land had “ finally acc omplished visit atio n,” she ob se rv e d H arr is e xpla in t o K .D . tha t he wo uld have to t e sti fy in c ourt . Ra g land

e xpla ine d to Ha

rr is why this int era ction was ha

rmful to the childre n and lef t th e ro o m t o o b serve her be havior fr om

ano the r r oo m. H arr is the n sh ow e d K .D . a we dd ingph oto g ra

phof he r n e w hus ba

nd , Co ok s- Ha

rr is, to which K.D. e x presse d surprise. Rag land explained to Har ris that she should discuss these matters wit h a ca seworke r bef

ore spr ingingthem on the childre n. When a ca seworke r questioned he r conduct, Ha

rris told her e ldest chi l d , M.H., that her r ights we re be ing violate d, and Ha rris left the vis it e arl y . K .D . b e g an c ry ing , a nd M. H. tr ie d to c omf

or t hi m. Rag land testified that she c oncluded Ha rris wa s not making an ef

fort to visit with her children. Be cause setting up me eting s by telephone be came difficult and Ha rris would hangup on

ca s ew o rk er s seekingto set up visits , CPS beg an sendingletters. On one occa sion, at Harr is’s reque st, CP S had arr ang ed for Har ris to be transported by a C ASA volunteer to the tre atment ce nter in a n o th e r c it y w h e r e h e r d a

u g h te r , C. D

. , w a s lo c a te d

. Wh e n H ar r is f a il e d to a p p e ar for the tr ip, CPS lear ned that Ha

rris had trave led to the treatment c enter and had an unsupervised visit with C.D. the day befor e. On

ano the r o c c a sio n, Ha

rr is a rr ive d wi th bi rthd ay

pr e se nts fo r C .D ., bu t le ft wi th the pr e se nts a t th e e nd

of the vis it. Ha

rr is te sti fi e d that sh e did no t wa nt t he g if ts t o b e sto le n w hil e C.D. w a s r e s id in g a t th e tr e a tm e n t c e n te r . Si mi la r ly , a t Ch r is tm a s , H ar

r is p r e s e n te d th e childre n18

with gif ts only to pack them up at the end of the visit, ex plaining that t hey could have them when they came home.

On tw o s e pa rate oc c a sio ns , CPS hir e d s e c ur ity f o r v i s i ts b a se d o n thre a ts f

ro m Co ok sHa rr is. Ra g land

te sti fi e d th a t sh e wa s p re se nt wh e n Coo ks -H arr is thr e a te ne d a wo rk e r. Ra g land a lso te sti fi e d th a t H arr is f

a ile d to s ub mit

to d ru g te sts and

ava ile d h e rs e lf

of vis iti ngop po rt

un iti e s o nly two or three times during the course of six to eig ht months even thoug h she was allowed visits t wice

mon thl y . On c ro ss- e xami natio n, Ra g land te sti fi e d that, a lth ou g h sh e ne ve r saw Harri s p hy sic a lly ha rm the c hil dr e n, sh e ob se rv e d Ha rr is i nte ra c t w ithhe r c hil dr e n in a wa y “ that w a s h arm fu l to the ir emotional well-be ing.” Rag land testified that Ha rris wa s one of the most diffic ult parents to work wi th i n ter

ms of tr y ing to g e t her to fo llo w thr ou g h with re c omm e nd a tio ns and havin g a pp ro pr ia te int e ra c tio ns wi th he r ch ild re n whe n she did vis it with the m. R a g land c on c lud e d th a t C. C.H . s ho uld be re moved at birth bec ause the risk to C.C.H. was too gr eat a nd ri s k fa ct o rs i n the home had not been r educe d to the point where the child could be sa fely maintained in the home. One of Har ris’s thera pists, C hris Fa

rre ll, testified that Harr is h a d “ g o n e th r o u gh ” th ree

c a se wo rk e rs and

thr e e the ra

pis ts b y the tim e he be c a me inv olv e d. She fa ile d to sh owup fo r h e r f ir st two appointments, and she did not ca ll. W hen she a ppeared fo r h er third appointment, she was ang ry . Fa rre ll described H arr is as self-a bsorbed with nar cissistic and para noid personality

disorder. At one session, af

ter a n ang ry and conf rontational exchang e, Ha rris stated, “ I ’m alwa

y s ang ry .” Har ris made thre ats ag ainst CPS and war ned that “they better hope they never end up in a nursing home” whe re she worke d. Har ris told F arr ell of a woman w ho called he r at the nur sing home and made “ threats.” Har

ris threatened “bac k,” reminding her that the woman’s mother was in Ha rris’s19

car e. On one occa sion w hen Fa rre ll a dvised Har

ris he would be te n minutes late in ending a session with another patient, Harr is ang rily walked out a

nd slammed the door. F arr ell discussed Ha rris’s lack of cooper ation with Kelly

Rag land. Har

ris told Far

rell that C ooks-Har

ris had made a dec ision to ignor e a court order to underg o pater nity testing and that she supported his dec ision. Harris fa iled to conclude the assessment portion of her therapy and droppe d out short of the nine sessions cited by the majority

. On the date of her last appointment, Harr is failed to show up or c all, and she ne ver returne d. Fa

rre ll terminated her

sessions for noncomplianc e. Fa rre ll testified t

h a t h e w a s “ s h o c k e d ” a

t H a r r is ’ s p o tential for violenc e and c oncer ned about her lack of cooper ation with therapy

. He conclude d she wa s a ver y dang erous a

nd violent woman, had ma de th re at s ag ainst others, and tha t he could not ensure the safe ty of her children. Acc ording ly , Fa

rre ll r ecommende d termination of Har ris’s pare ntal rig hts due to the violent nature

o f h er p er s o n ality : “She talked a bout breaking pe ople’s leg s.” F arr ell testified, “I would say

that wi th a wo man w iththi s le ve l of a ng e r a nd ra g e wi thi n her any

thi ngis p os sib le ,” and

that H a rr is

wo uld no t take re sp on sib ili ty

fo r h e r a c tio ns and

wa s e ntr e nc he d in

he r w or ld v ie w. F a rr e ll explained that Har

ris’s s exual abuse as a child was a signific ant aspe ct in her de velopmental history and that it was a lso releva nt that her mother

had abuse d drug s, Harr is gr ew up in foster car e and ha d

an e xten siv e a mou

nt of the ra

py and c ouns e lin g thr ou g ho ut he r lif e , he r sis te rs were al so se xua lly abused a nd had abuse d drug s, and her most rec ent hus band abused drug s. Fa rre ll felt he was making pr og re ss w ithHa

rr is at th e tim e sh e dis c on tin ue d h e r s e ssi on s. Ga y le Mic ha le k, Ha

rr is’ s lic e ns e d pro fe ssi on a l cou ns e lor fo r the pe ri od of Au g us t to De ce m ber 2000, te stified that she had se en a w orrisome pattern of be havior by Har ris and wa s20

conce rned that Harr is had not taken re sponsibili ty for the pr oblems that h ad o cc u rre d in the case

. Michalek was very conce rned about the children returning home and that Har ris had re g resse d in her treatment rather

than m aking prog ress. Michalek was concerne d that Har ris was not stable, wa s not pa rt ic ipatin g a de qu a te ly

in d ru g and a lc oh ol c ou

ns e lin g , a nd ha d n ot c omp lie d w ithDepart ment
reque sted drugtesting. Michalek was also conce rned that Har ris blamed her

eig ht-y ear -old daug hter for her “sexualiz ed behavior ” and that she was “all over” Gonzales and may have initiated some of the sexual activity . Michalek a g ree d, howeve r, that Ha rris wa s not phy sically

abusive nor a

n

uncar ing mother

.

Sherryl Boyd, the guar dian ad litem and court-appointed special advoc ate f or all of the childre n beg inning in 2002, testified that she was a ppointed to make re commendations to the Court about the welf

are of the c hildren and w hat was in the children’ s best interest. She de scribed the c ha ng e in t he c hil dr e n a

nd the pr og re ss t

he y ma de wh e n the y

we re re mov e d to the ir

“ pe rm a ne nt” fo ste r c are fa

mil y . B oyd te sti fi e d that the ir e nv ir on me nt w a s n owme e tin g the ir ne e ds and

that th e ir best interests we re be ing se rved in their ne w s urrounding s. C.C.H.’s siblings had been adopte d by the fa mil y wi th w hic h h e liv e d, he wa s th ri vin g , and he “ c ou ld n ot b e in a be tte r p la c e .” Th e ir

ho me

was c alm, comforta

ble, and we ll-kept. Boyd explained that it is not a fa ncy home but a loving and wholesome situation. The children are close to e ach other and love their pa rents. The children ha d descr ibed to B oy d the fig hting, drinking , and drug use that occur red in the Har

ris household and that it had been M.H .’s primary responsibility

to take ca re of K.D.—to cha

ng e his diaper s, fee d him, and clea n up. Be cause Har

ris often worked at nig ht and slept during the day , there was no one to take21

car e of K.D. M.H. told B oy d that Har ris had a ba d temper a

nd often hit him. On cross-e x amination, B oyd a c kn ow le dg e d th a t sh e ha d n e ve r s e e n th e c hil dr e n in te ra c t w ithHa rr is. C.C .H .’ s f

os te r m oth e r a

nd the mo th er of

C.C .H .’ s th re e sib lin g s te sti fi e d th a t in Fe bruar y 2004 C.C.H. turned three y ear s o l d an d i n J uly 2004 had lived with the fa mily for thre e y ear s. She descr ibed how he loved to talk, was happy and full of life, a nd particula

rly close to M.H., his old e st b ro the r. He fi t se a mle ssl y int o the fa mil y , and it wa s in C.C .H .’ s int e re st t o s tay wi th h is siblings. The foster m other is a school counselor, and t he father is a hig h school teac her. The y had expressed a de sire to adopt C.C.H.

Har ris’s emplo y er t es t i fied that Ha rris wa s a direc t car eg iver a nd had provide d inhome ca re to e lderly

and disabled patients for two-a nd-one- half y ear s. She descr ibed Har ris as an excellent and prof

essional employ ee. She ha d only seen C.C .H. t wo t imes and wa s not awar e that Ha rr is’ s p are nta l r ig hts to h e r o the r t hr e e c hil dr e n h a d b e e n te rm inate d. Ta y lor Sk a ar, a

do me sti c violence co u n s el o r at a woma n’s shelter, te stified that the only require ment for wome n to rec eive service s at the shelter

is that they

have a history of abuse . She tes t i fi ed t hat Har ris had suff

ere d domestic violence from her first husband and that “things” wer e “r ocky ” with her curr ent husband, Cooks-Harr is. She was not awa re of any drug or alc ohol use by Har ris. A neig hbor also testified that he had never seen any evidenc e of drug use by Har ris and was unawa

re of the protec tive order

. Har ris then testified that her

children ha d been in f

oster ca re f or sever al y ear s and that she wa s not allowed to know whe re the y wer e bec ause “I gu es s , m y rig hts aren’ t as important as their’s.” She denied using drug s, taking her children to a crac k house, or a ssociating with a known

se x off e nd e r. She c omp la ine d that the “ kn ow n” se x o ff e nd e r wa s c on vic te d a

y e ar a ft e r h e r r ig hts22

to her thre e older

children wer e terminated. Har ris admitted that she had use d marijuana when she le arn e d h e r d a

ug hte r h a d b e e n sexua lly a bu se d b y he r b oy fr ie nd

bu t th a t sh e ha d g on e to t he pa rk to

us e it a nd ha d n ot u se d it aro un d he r c hil dr e n. She pr ote ste d that sh e did no t wa nt to take dr

ugte sts be c a us e sh e did

no t w ant t o p ay

fo r the m. She a c kn ow le dg e d s he ha d v isi te d G on zal e s in ja il w ith her c hildren once or twice beca use she wa

nted answers, he ha d them, and she c ould not find any one to keep he r childre n. She testified that CPS “enda ng ere d” her marria g e to he r cur rent husband. She thought she had attende d fifty or more A lcoholics Anony mous meeting s over the pa st couple of y ear s. She intended to divorce Cooks-Harr is. She had st ay ed i n S an M arc os for the sake of he r children, a

nd she testified that “[t] hey ’ll be back.” There was only a sca nt refe renc e by

Har ris to the best interest of the child.

On cr oss-examination Harris testified that she had been removed from her mother’s custody when she was a

y oung teena g er f

or r easons known to he r mother. She stay ed in a g roup home in Montana until she went home. She ma rried Steve Dietrick a

nd, like her mother , suspected that he molested he r daug hter, C.D. She did not report he r suspicions to the police. She testified that Gonzales neve r lived wit h her but would stay with her severa l day s eac h wee k as long as they dated, wh ic h w a s le ss t

ha n a month. She a g re e d it wa s no t a wi se c ho ic e to take the c hil dr e n to vis it h im in jail. She acknowledg ed t h at she had ha d a number of thera pists, probably

“less than ten.” She

a lso a c kn ow le dg e d th a t sh e ha d h e ard a lle g a tio ns fr om O nti ve ro s and ot he rs that a pe rs on wi th whom she wa s associating was a sex offender , but she was una ble to confirm it to her satisfa ction. Har ris wa s t we n t y y ears old when she ha d her f irst child with Dietrick. They had two childre n toge ther, he had a dr

ug prob l em and abused her, a nd he wa s in prison. He did not provide any23

support for he r or the c hildren. She ac knowledg ed that she refuse d to take a urinaly sis test without

a cour t order. She f

iled a g rieva

nce ag ainst the children’ s attorney ad litem f or speakingto her out

o f t h e p r e s e n c e o f

h e r o w na t t o r

n e y. Ba sed upon the e vidence prese nted at trial and c onsidering the per tinent fac tors from Holley and sec tion 263.307 of the fa mily code, I would conclude that, even w hen conside red in the light most favor able t o Ha rr is, the evidenc e supports the trial c ourt’s pre sumed finding that appointment of the De partment a s manag ing c onservator would be in the be st interest of C.C.H. He had lived his entire life w ith the foster fa mily who had a dopted his siblings. The f oster par ents had

ra ise d C. C.H ., and he wa s in g oo d he a lth and pr og re ssi ng no rm a lly

. Th e re c or d s ho we d c on tin uit y of par ental af

fect i o n an d ca re by

the foster

pare nts. There was ample testimony that C.C.H. had bonded with his foster family , was close and attac hed to his siblings, and that the f amily was a strong family unit. Both the g uardia

n ad litem and the attorney ad litem r ecommende d that Har ris’s par ental ri g hts to C .C. H. be te rm inate d a nd that the be st inte re st of

the c hil d w ou ld b e se rv e d b y a llo wi nghim to remain with the only family he has known. At the time of the trial, both biolog ical par ents had violated a domestic- violence pr otective order , the biologica l f ather whose rig hts to C.C .H. had be en previously

terminated w as in jail for violation of the pr otective or der, a nd there was a

n indication that the conduc t would cont i n u e. Even if the f actf inder ha d believed H arr is that she obtained the protec tive order

out of ang er, the rec ord showed that Harr is was complicit in igno ring two court order s—the protec tive order and the c ourt’s orde r that Cooks-Har ris underg o a pater

nity test. There

wa s n o e vid e nc e of

any e mot ion a l a tta c hme nt b e tw e e n th e c hil d a nd his re ma ini ngpa

re nt.24 Case wor kers testifie d that the Depa rtment’s per

manenc e plan f

or C.C.H. was te rm inatio n a

nd pla c e me nt f

or a do pti on be c a us e Ha rr is h a d d e mon str a te d n on c omp li ance w ith previous ser

vices a nd C.C.H. had been pla ced w ith the foster pa rents who adopted his br others and sister. Har

ris demonstrated rec alcitra nce in a cce pting the D epar tment’s service s and made desultory and mea g er e ffor

ts to act in the interest of he r childre n. The pre sumption i n favor of a biologica l pare nt flows from the be lief that the pa rent wi ll a c t in

the c hil d’ s b e st i nte re st, a pr e su mpt io n tha t ha s b e e n r e butte d a nd fo r w hic h I

wo uld conclude there is no evidence here . Quer y how it cannot be in a child’s best interest to stay with the only stable, loving family unit—including his brother s and sister—that he ha s known in his entire lif e . I t is e vid e nt f

ro m th e re c or d th a t the le ng th of tim e C.C .H . h a s b e e n li vin g wi th h is f os te r f a mil y is a signif icant fa ctor. Courts have rec og nized a child’s nee d fo r permanenc e as “ the par amount considerat i o n for the child’s prese nt and future phy sical and e motional needs.” In re M .A.N.M. , 75 S.W. 3d

73 , 7 7 ( Te x. Ap p.—S an Ant on io 2 00 2, no pe t.) ; se e Le hm an v . Ly c om ing Cou nty Children’s Servs. Age ncy , 458 U.S. 502, 513 (1982) (c hildren nee d stable, long -term r elationships wi th c a re t a k e r s )

. B u t m y v i e w d o e s n o t r e s t o n l a p s e o f t i m e o r a s s i g n i n g b l a m e f o r t h e d e l a y

in these proc eeding s. We may not allow a d et ermination of the best interest of the c hild to turn on pe rs on a l pr e fe re nc e s, sp e c ulativ e c on c e pts of pr op e r c hil d r e ari ng , o r w ho “ de se rv e s” the c hil d; i t is for this rea son that we re ly on the deter

minable leg al standar d provided by the Holley and statutory fa c tor s, no ne of

wh ic h s up po rt

a fi nd ingin f

a vo r o f t he mot he r b a se d o n th e re c or d b e fo re us . Our task is made difficult by the Depa rtment’s per functory

perf ormanc e in adduc ing evidenc e re g ardingC.C.H.’s best interest. And Ha rris’ s at t o rney

advised the jury

in his opening25

statement that the trial would be contentious and “we ’re g oing to ha ve a dog fig ht.” I n his closing statement he reiter ated that he “promised y ou that y ou’d see a dog fig ht. You saw a dog fig ht. I t’s

u g ly

. T h e r e a in ’ t a

p r e tt y th in g a b o u t a d o g f ig h t.
. . . B o th

d o g s u s u a ll y

g e t h u rt. ” I t d o e s not redound to the c hild’s benef it or that of the sy stem for a trial to deterior ate into pitched battle. And

we sh ou ld n ot p ro te c t pa

re nta l r ig hts a t th e e xpe ns e of the be st int ere st o f t

he c hil d, fo r t

he be stint e re st a na ly sis e va luate s th a t of

the c hil d, no t th a t of

the pa re nt. Even w h e n a ll o f th e e v id e n c e is v ie w e d in th e li g h t mo s t f a v o r a b le to the verdic t

and c on sid e re d und e r t

he pe rt ine nt Holley and sec tion 263.307 fa ct o rs, Iwould conclude that the evidenc e pre sented at trial would not enable r easona b l e an d fa i r-minded people to rea ch the verdict rea ched by the j ury . I would conclude that the evidence is leg ally insufficient to support the jury verdic t and suffic ient to support th e t ri al co u rt’s pre sumed finding that appointment

o f t he De partment a s manag ing c onservator would be in the be st interest of C.C.H. S ee Lenz , 79 S.W .3d at 19.

B e c a us e Iwo uld

a ff ir m th e jud g me nt o f t

he tr ia l c ourt , I

re sp e c tf ull y dis se nt.

__________________________________________ J an P. Patterson, J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Filed: June 15, 2007