TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00722-CV

S. L. and J. R., Appellants 

v. 

Texas Department of Family and Protective Services, Appellee

FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-FM-21-003638, THE HONORABLE CLEVE WESTON DOTY, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

 S.L. (Father) and J.R. (Mother) appeal from the termination of their parental 

rights to their daughter, Ella, who was born in December 2020.

1 As explained below, we reverse 

the order of termination and remand for further proceedings. 

PROCEDURAL & FACTUAL SUMMARY

In June 2021, the Texas Department of Family and Protective Services was 

awarded temporary managing conservatorship of Ella, who was about six months old. The 

Department attached to its petition an affidavit of removal alleging repeated domestic violence 

between Mother and Father over the preceding three months and that the parents continued to 

have a relationship despite repeated cautions that Mother should cease contact with Father for 

1 For the child’s privacy, we will refer to her by an alias and to her family members by 

their relationships to her. See Tex. R. App. P. 9.8. 
2

her and Ella’s safety. The affidavit stated that the Department was seeking conservatorship due 

to “ongoing domestic violence”—asserting that there had been nine reports of “extreme domestic 

violence” since March 15—and because Mother “has proven not to be a protective parent by 

continuing to have contact with [Father] after being told on multiple occasions not to have any 

form of contact with him to prevent further escalation and danger to” Ella.

After Ella’s removal, both parents were ordered to remain in contact with their 

caseworker and keep the caseworker informed of any change in their contact information; obtain 

and maintain sufficient income to support themselves and Ella; obtain and maintain stable, 

suitable housing; participate in drug testing; complete a drug and alcohol assessment (an OSAR)

and follow all recommendations; complete a psychological evaluation and follow all 

recommendations; and participate in individual therapy. In addition, Mother was ordered to 

complete a protective-parenting class and a program for domestic-violence survivors, while 

Father was ordered to complete a nurturing-parenting class and a Batterers Intervention Program.

When trial commenced on August 30, 2022, the Department provided its opening 

arguments, and the trial court then recessed the hearing until September 19.

2 Conservatorship 

worker Shawn Schroeder testified that he had been assigned to the case in early August 2022, 

about seven weeks before the September 19 hearing. Although Schroeder did not have personal 

knowledge of the earlier history of the case, he testified that he had read the Department’s file in 

2 The trial was held remotely via Zoom. Mother did not attend. Her attorney initially 

said she had called to tell him “that the link [he had] sent her is not working.” A few minutes 

later, the attorney stated, “Your Honor, my client initially indicated she was having some issues

connecting. She may, in fact, be choosing to merely view this on YouTube.” Father attended, 

but about two-thirds of the way through trial, someone identified in the reporter’s record as 

“Unidentified Speaker” said, “Your Honor, [Father] doesn’t wish to be here anymore. And he is 

becoming a little belligerent. So can he be excused?” The trial court said, “This is his choice. 

He has the absolute right to be here or not be here.”
3

“Impact,” which includes reports by the previous caseworker and notes from the investigation 

stage onward. Schroeder testified that Impact is where the Department keeps “case notes on 

anything and everything that’s happened” and that “[i]f something happened, you document it.” 

He also testified that it was standard practice for Department workers to “record absolutely 

everything in Impact” and stated, “We’re told that if you didn’t write it down, it didn’t happen.” 

Schroeder was asked whether he had verified any of the information contained in Impact, and he 

said, “I read everything in the Impact. And that, to me, is accurate.” He agreed that his opinions 

in the case were “based on the conclusion [that] anything that CPS puts [in] Impact is correct.” 

Schroeder explained that when a case is “transition[ed] from one team to another” or between 

caseworkers, the caseworkers generally discuss the case to bring the new worker up to date on 

the case. Schroeder was not able to talk to his predecessor, so he discussed Ella’s case with his 

supervisor and read the file in Impact. He later testified that he had formed his opinion about 

Ella’s best interest by reading the file and speaking to his supervisor.

The parents objected to Schroeder’s testimony about events predating his 

assignment as inadmissible hearsay and not based on his personal knowledge. The trial court

overruled the objection, ruling that the Department had established a predicate for Schroeder to 

testify about the entire case and that Schroeder was “testifying as a corporate representative, not 

as a traditional witness.” The court also overruled an objection arguing that the Department’s

records had to be admitted into evidence before Schroeder could testify about them. See Tex. R. 

Evid. 1002 (the “Best Evidence Rule”).

Schroeder testified that the Department got involved with the family “due to 

extreme domestic violence that had been reported to the Department. Also, there [were] nine 

occasions since the onset of the case [on] March 15th of 2021.” He testified that the Department 
4

was concerned that Mother “had not proven to be a protective parent” because she continued to 

have contact with Father after being repeatedly cautioned “not to have any form of contact with 

him to prevent further escalation and danger to” Ella. He stated that living in a home in which 

there is “ongoing domestic violence” affects a child emotionally and developmentally.

Schroeder said that after the Department was awarded temporary managing 

conservatorship in late July 2021, the parents were ordered to engage in services to address the 

concerns of domestic violence. Mother was ordered “to engage in psychological evaluation, 

individual therapy, protective parenting class, nurturing parenting class, random substance abuse 

tests,” an OSAR evaluation, and a psychiatric evaluation. Father similarly was ordered to 

“participate in a psychological evaluation, individual therapy, protective parenting, nurturing 

parenting, also random substance abuse tests, . . . an OSAR evaluation, and a psychiatric

evaluation.” Schroeder said that Mother completed an OSAR in November 2021 and a 

psychological evaluation in December 2021 and that she had done three sessions of individual 

therapy. Schroeder further testified that although Mother claimed that she had completed a 

protective-parenting class, she had not provided a certificate of completion, and that her OSAR 

referred her “to follow up with Integral Care, which has not been completed.” Asked about 

Father’s progress, Schroeder stated that Father had completed a psychological evaluation in 

November 2021. Schroeder testified that neither parent had “fully engaged in any of those 

services provided to them” and that the Department still had the same concerns for Ella’s safety.

Schroeder testified that Mother was asked seven times to submit to drug tests and 

that Father was asked five times; Mother and Father each completed two tests, and both tested 

positive both times. Schroeder did not testify what the parents tested positive for and did not 

know the dates of the positive drug tests but knew that they occurred before he was assigned to 
5

the case, stating, “I want to say that they were this year.” Schroeder could not recall if he had 

asked Father to take a drug test. He acknowledged that in addition to the seven tests he had 

mentioned, Mother had drug-tested two weeks before trial and had sent him the test results.

Asked, “And, in fact, she tested clean on that day, didn’t she,” Schroeder answered, “I don’t have 

that right now. I would have to look that up.”

Schroeder testified that the parents were allowed weekly visitations but had not 

regularly visited Ella. He did not say how often the parents had visited but said that Father last 

visited the child in June 2022 and that Mother last visited in May 2022. Schroeder did not know 

either parent’s work schedule but conceded that Mother’s schedule might have made visitations

difficult and said he knew Father “was working on construction projects outside of Austin and 

sometimes out of state.” Schroder testified that if a parent reached out to change a visitation 

schedule because of work, he “would work with them” to accommodate the parent’s needs. 

However, neither parent ever asked him to change the visitation schedule, and Impact did not 

reflect that Father had asked for virtual visits while he was working out of town.

Schroeder said that Father had been incarcerated several weeks before trial but did 

not provide any further details.

3 He had “[n]ot yet” visited Father in jail and said that before 

Father was incarcerated, he “attempted to [visit Father] at the address that was provided.” 

Schroeder did not testify about any visits or attempted visits he or other caseworkers had 

with Mother.

3 The Department’s attorney stated in her opening argument that Father had been 

arrested about a week before the hearing commenced in August “for unlawful carrying of a 

weapon,” that he was in jail, and that she thought “that there are other pending charges, including 

evading arrest, violation of a protective order, assault and family violence, and out-of-county 

felonies.” However, other than Schroeder’s statement that Father had been arrested several 

weeks earlier, there was no evidence provided about his arrest or the status of any 

pending charges.
6

Schroeder had met with Ella twice, once in her placement and once at the 

Department offices when he supervised a visit—he did not testify about the visit or which parent 

the visitation was with. Ella had been living with the same foster parents “[f]or the entirety of 

this case,” and thus most of her memories were of that family. Schroeder said that Ella is “doing 

great” in the home and is “happy, healthy, giggly, smiles.” The foster family hopes to adopt 

Ella, and the Department’s plan for the child is unrelated adoption. Schroeder testified that 

termination is in Ella’s best interest “[b]ecause of the lack of engagement in services. The 

parent—the parents had over a year to engage in services and have not done any of them.” The 

Department wanted Ella to have permanency through adoption.

Court Appointed Special Advocates (CASA) volunteer Grace Kelso testified that

she had been assigned to the case on August 24, 2022, and that she had learned about the case by 

speaking to her supervisor. Kelso had visited Ella once, and the supervisor and previous CASA 

volunteer had visited the child “at least monthly since the start of the case” and had attempted to 

contact the parents and their attorneys at least monthly.

Kelso testified that at the beginning of the case, CASA was concerned about 

“domestic violence between the parents, specifically [Father’s] abusive behavior towards

[Mother], and the dangerous situations that that put the child, [Ella], in,” and that the parents had 

not alleviated those concerns by working services. Kelso testified about how CASA determines

best interest, saying that it “considers multiple different factors: the child’s safety, their 

emotional and physical well-being now and in the future, the current placement, and if the child 

can safely return to their parents or not. In this case, it does not appear that that is possible.”

Kelso said that Ella will be two years old in December and “is a really sweet, 

bright, bubbly, young girl. She’s speaking a lot. She loves playing with her older foster sibling. 
7

She loves going on swings. That’s her number one favorite thing to do. She’s just a really 

sweet, great, little girl.” Ella is “developmentally on target,” and her foster parents “are able to 

meet all of her needs and are encouraging healthy development. She’s walking, talking, doing 

everything she should do at this point.” If the parents’ rights were terminated, “the foster parents

plan to adopt,” and Kelso testified that “CASA believes it’s in the best interest of [Ella] for 

parental rights to be terminated so that she can be—find permanency through adoption at her

current placement.” Kelso also testified that the foster parents plan to set up an email account to 

allow Mother to have contact with Ella and that “[p]otentially, in the future, they would consider 

some future contact just depending on safety for [Ella].”

At the conclusion of the hearing, the Department asked the trial court to take 

notice of “the facts of the removal at the 262 hearing, as well as the [earlier orders] that have 

been referenced throughout today’s hearing.” Father’s attorney objected that disputed facts or 

findings were “not appropriate for judicial notice.” The trial court ruled:

I’m overruling your objection as to taking judicial notice, particularly the prior 

court orders. You know, they’re—they’re good evidence of what the Court

ordered. So I’m overruling that objection, but I do take your point that if it goes 

much beyond that, which I don’t know until I look through the entire file or at

least to the 262 hearing, that it may be—I may be limited in terms of what I am 

able to take judicial notice of as far as a fact or disputed fact.

Mother’s attorney added that although the trial court could take judicial notice of its file, it could 

not take judicial notice “of the facts contained within the file.” The court said, “[P]oint taken as 

to the scope. That’s pretty close to what I had gleaned.”4

4 The trial court seems to have correctly concluded that it could take judicial notice of its 

own orders and records, see In re R.S.D., 446 S.W.3d 816, 820 n.4 (Tex. App.—San Antonio 

2014, no pet.) (“a court may take judicial notice that a pleading has been filed in the case, that it 

has signed an order, or of the law of another jurisdiction”); In re J.E.H., 384 S.W.3d 864, 870 
8

The trial court later signed a final decree of termination, finding that termination 

was in Ella’s best interest and that both Mother and Father had failed to comply with a court 

order specifying the actions necessary to regain custody of Ella, who had been in the 

Department’s conservatorship for at least nine months after her removal for abuse or neglect. 

See Tex. Fam. Code § 161.001(b)(1)(O), (2). Both parents challenge the court’s findings of best 

interest and statutory grounds.

STANDARD OF REVIEW

“Parental rights are ‘far more precious than any property right,’ and when the 

State initiates a termination proceeding, ‘it seeks not merely to infringe that fundamental liberty 

interest, but to end it.’” In re E.R., 385 S.W.3d 552, 563 (Tex. 2012) (quoting Santosky 

v. Kramer, 455 U.S. 745, 758–59 (1982)). The Department therefore must overcome the “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) (citing Tex. Fam. Code § 153.131(b)), and “[w]e 

carefully scrutinize termination proceedings,” E.R., 385 S.W.3d at 563. Nonetheless, “[t]he

strong presumption that a child’s best interest is served by keeping the child with his or her 

biological parents disappears when confronted with evidence to the contrary.” Aguilar v. Foy, 

(Tex. App.—San Antonio 2012, no pet.) (trial court may “take judicial notice of its own records 

in matters that are generally known, easily proven, and not reasonably disputed”), but not of the 

truth of allegations in those records, see Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.

App.—Austin 1994, no writ). Thus, the trial court could take judicial notice of its orders,

including those requiring certain actions by the parents, but not of the factual allegations made 

by the Department or CASA. See R.S.D., 446 S.W.3d at 820 n.4; J.E.H., 384 S.W.3d at 870; 

Tschirhart, 876 S.W.2d at 508. Nor could the court consider evidence that might have 

been heard in earlier hearings. See In re D.L.W.W., 617 S.W.3d 64, 91–92 (Tex. App.—Houston 

[1st Dist.] 2020, no pet.); see also In re E.W., 494 S.W.3d 287, 296–97 (Tex. App.—Texarkana 

2015, no pet.) (trial court may not take judicial notice of testimony in earlier hearings or trials 

unless transcripts are admitted into evidence).
9

No. 03-10-00678-CV, 2012 WL 677497, at *8 (Tex. App.—Austin Mar. 1, 2012, no pet.) 

(mem. op.).

To terminate a parent’s rights, the Department must establish by clear and 

convincing evidence (1) that the parent engaged in conduct that amounts to at least one statutory

ground for termination and (2) that termination is in the child’s best interest. Tex. Fam. Code 

§ 161.001(b); In re J.W., 645 S.W.3d 726, 740–41 (Tex. 2022). “[C]onjecture or a 

preponderance of evidence is not enough.” In re D.L.W.W., 617 S.W.3d 64, 91–92 (Tex. App.—

Houston [1st Dist.] 2020, no pet.) (citing In re E.N.C., 384 S.W.3d 796, 808–10 (Tex. 2012)). 

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

of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be 

established.” Tex. Fam. Code § 101.007; In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). The 

distinction between legal and factual sufficiency “lies in the extent to which disputed evidence 

contrary to a finding may be considered.” A.C., 560 S.W.3d at 630. In reviewing legal 

sufficiency, we view the evidence in the light most favorable to the factfinder’s determination, 

including undisputed contrary evidence, and assume the factfinder resolved disputed facts in 

favor of its finding. Id. at 630–31. In reviewing factual sufficiency, we weigh the favorable 

evidence against disputed evidence and ask whether the 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. We must “provide due deference to the 

decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, 

is the sole arbiter when assessing the credibility and demeanor of witnesses.” In re A.B., 

437 S.W.3d 498, 503 (Tex. 2014); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
10

DISCUSSION

Evidentiary Issues

Father objected when Schroeder was asked to testify about the court orders setting 

out the actions required of Father: “The order is the evidence of what the Court ordered, not this 

witness. This would be hearsay of what the Court ordered.” The trial court allowed Schroeder

to testify about “what he thinks [the order] was.” Mother and Father later objected to 

Schroeder’s testimony about the case before his assignment. Father objected “to this witness 

giving just blanket testimony. I previously objected to hearsay on the orders, but his—his whole

testimony is nothing but hearsay.” Mother joined that objection and added that “because we’re

talking about the—the content of the department records, those department records need to be 

entered before the caseworker can discuss them.” See Tex. R. Evid. 1002. The Department was 

permitted to “go back and lay a more proper foundation for Mr. Schroeder to be able to testify to 

the entirety of this case” by asking Schroeder about Impact and the Department’s policies about 

what information is entered into Impact and how cases are passed between caseworkers. After 

hearing those explanations, the trial court overruled Father’s and Mother’s objections “because 

the witness is testifying as a corporate representative, not as a traditional witness.” The 

Department also noted that Schroeder was “not testifying to what is written in Impact, as—as 

that would be hearsay, but more his personal knowledge of the case throughout his time working 

with the department and being the department representative for this case.” Father asked for a 

running objection, which the court granted.

On appeal, Father argues that the trial court abused its discretion in admitting 

Schroeder’s testimony because it was based not on personal knowledge but on Department 
11

records that were not introduced into evidence.5 However, we cannot hold that the trial court 

abused its discretion in deciding that Schroeder, a Department representative who had

familiarized himself with the records in the case and who explained what information is 

contained in the Department’s records and how it comes to be in the file, could testify about the 

facts that occurred before his assignment. See In re J.F.C., 96 S.W.3d 256, 285 (Tex. 2002);

In re E.A.K., 192 S.W.3d 133, 140 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); 

see, e.g., In re E.C.S., No. 14-19-00039-CV, 2019 WL 2589943, at *7 (Tex. App.—Houston 

[14th Dist.] June 25, 2019, no pet.) (mem. op.) (“Melissa Brod, a supervisor with the 

Department, testified as the Department’s representative. One of the caseworkers who 

worked on the case, Brandy Matthews, was unavailable for trial. Brod was familiar with the 

records in this case and had participated personally.”); In re N.C.H.-M., No. 04-18-00098-CV, 

2018 WL 3747744, at *1 (Tex. App.—San Antonio Aug. 8, 2018, pet. denied) (mem. op.)

(caseworker was asked what had caused children to come into Department’s care, and Father 

lodged hearsay objection; court of appeals held that trial court could have concluded that 

testimony was not inadmissible hearsay because caseworker had knowledge of case, did not 

relay out-of-court statement, and explained what caused Department’s involvement with family). 

We thus overrule Father’s complaints related to the trial court’s ruling that Schroeder could 

testify about information he learned about the case from the Department’s records in Impact.

5 Father raises the same complaint as to Kelso, but although the parents objected on 

hearsay and best-evidence grounds when Kelso was asked about CASA’s attempts to contact the 

parents, the Department withdrew that question, and the parents did not object again.
12

Statutory Grounds

Both parents challenge the sufficiency of the evidence showing that Ella was 

removed for abuse or neglect so as to support the trial court’s finding of statutory grounds under 

Subsection O. Father also argues that the evidence is insufficient to show that he failed to 

comply with a court order.

Abuse or neglect under Subsection O “necessarily includes the risks or threats of 

the environment in which the child is placed”—it is not necessary that a child actually suffer 

physical or emotional harm, and the Department may seek conservatorship upon a showing that a 

child is at risk of abuse or neglect if left in a parent’s care. In re E.C.R., 402 S.W.3d 239, 248

(Tex. 2013) (“So while subsection O requires removal under chapter 262 for abuse or neglect, 

those words are used broadly.”). The supreme court has instructed us that when we are 

considering whether the trial court determined that removal was justified due to a risk of abuse or

neglect, we should consider trial-court orders and should even consider affidavits of removal, 

“even if not evidence for all purposes.” Id. at 248–49.

Schroeder and Kelso both testified without objection that Ella was removed due to 

domestic violence, with Kelso noting that Father’s abusive behavior toward Mother placed Ella 

in jeopardy, and with Schroeder stating that the domestic violence was “extreme” and occurred 

nine times in a four-month span. Schroeder also explained that ongoing domestic violence 

affects a child emotionally and developmentally. Moreover, Schroeder testified that the

Department was concerned at the beginning of the case that Mother was not acting as a 

protective parent because she continued to have contact with Father despite being cautioned not 

to and that the parents had not alleviated those concerns. The trial court’s Temporary Order 
13

Following Adversary Hearing awarded the Department temporary managing conservatorship and

included a finding that:

there is sufficient evidence to satisfy a person of ordinary prudence and caution 

that: (1) there was a danger to the physical health or safety of [Ella] which was 

caused by an act or failure to act of the [parents] from whom [Ella was] removed. 

The Court further finds that it is contrary to the welfare of [Ella] to remain in the 

home of [Mother] or of [Father], and; (2) the urgent need for protection required 

the immediate removal of [Ella] and reasonable efforts consistent with the 

circumstances and providing for the safety of [Ella] were made to eliminate or 

prevent the removal of [Ella]; and (3) reasonable efforts have been made to enable

[Ella] to return home to [Mother] or [Father], but there is a substantial risk of a 

continuing danger if [Ella is] returned home to [Mother] or [Father].

(Emphases added.) In later permanency-hearing orders, the court found that the parents had “not 

made the progress necessary to alleviate the causes that necessitated placement of [Ella] outside 

of the home; and that it is therefore not in the best interest of [Ella] to return to the home at 

this time.”

Thus, when we consider the testimony by Schroeder and Kelso, combined with 

the trial court’s orders and the affidavit of removal—a document that we will consider only in 

this limited inquiry as to why the trial court ordered the child’s removal—we hold that although 

it is a close question, the evidence is legally and factually sufficient to support a finding that the 

trial court ordered Ella removed for abuse or neglect. See id.; T.M. v. Texas Dep’t of Fam. 

& Protective Servs., No. 03-21-00174-CV, 2021 WL 4692471, at *8–9 (Tex. App.—Austin 

Oct. 8, 2021, pet. denied) (mem. op.).

As for the evidence of Father’s failure to comply with the court’s order, Schroeder 

testified that Father had only completed two drug tests and a psychological evaluation, that he 

had missed numerous drug tests, and that the parents had “not fully engaged in any of those 

services provided to them.” In addition, Schroeder testified that Father tested positive on two 
14

drug tests. See In re J.Q.J., No. 01-18-01094-CV, 2019 WL 2292991, at *7 (Tex. App.—

Houston [1st Dist.] May 30, 2019, no pet.) (mem. op.) (including missed drug tests in recitation 

of evidence of failure to comply with court order); In re J.M.T., 519 S.W.3d 258, 267 (Tex. 

App.—Houston [1st Dist.] 2017, pet. denied) (“A parent’s failure to complete one requirement of 

her [family service plan] supports termination under subsection (O).”). Further, the trial court’s

permanency-hearing orders recited that the parents had not made sufficient progress to obtain 

Ella’s return. Although the evidence presented in this case meets only the bare minimum, we 

hold, given Schroeder’s outright statement that neither parent had complied with the 

requirements placed upon them, that the evidence is legally and factually sufficient to support a 

finding of statutory grounds under Subsection O.

Best Interest

Finally, we turn to the parents’ challenge to the sufficiency of the evidence 

supporting the trial court’s finding that termination is in Ella’s best interest.

We review a trial court’s best-interest determination in light of the considerations 

set out in Holley v. Adams, taking into account the child’s wishes, their emotional and physical 

needs now and in the future, present and future emotional or physical danger posed to the child, 

the parenting skills of those seeking custody, any programs available to assist those seeking 

custody to promote the child’s best interest, plans for the child’s future, the stability of the home 

or proposed placement, conduct by the parent that might show that the parent-child relationship 

is inappropriate, and any excuses for the parent’s conduct. 544 S.W.2d 367, 371–72 (Tex. 1976). 

The Holley factors are not exhaustive, they need not all be proved, and a lack of evidence about 

some of the factors does not “preclude a factfinder from reasonably forming a strong conviction 
15

or belief that termination is in the child’s best interest, particularly if the evidence were 

undisputed that the parental relationship endangered the safety of the child.” In re C.H., 

89 S.W.3d 17, 27 (Tex. 2002). However, the “presence of scant evidence relevant to each factor 

will not support such a finding.” In re A.W., 444 S.W.3d 690, 693 (Tex. App.—Dallas 2014, pet. 

denied) (citing C.H., 89 S.W.3d at 27). Further, a lack of evidence contradicting a finding 

cannot be viewed as “if it were evidence supporting the finding” and “does not constitute clear 

and convincing evidence.” E.N.C., 384 S.W.3d at 808.

The Department presented evidence that Ella was happy in her foster home, doing 

well and developing appropriately, and bonded to the family, which hoped to adopt her, and that

the Department’s plan for Ella was unrelated adoption. That evidence weighs in favor of the trial 

court’s finding that termination is in Ella’s best interest. See C.F. v. Texas Dep’t of Fam. 

& Protective Servs., No. 03-21-00250-CV, 2021 WL 5018839, at *8 (Tex. App.—Austin

Oct. 29, 2021, pet. denied) (mem. op.) (when child is too young to express wishes, courts may 

consider evidence that she is bonded with and loved by foster family); L.R. v. Texas Dep’t of 

Fam. & Protective Servs., No. 03-18-00125-CV, 2018 WL 3059959, at *1 (Tex. App.—Austin 

June 21, 2018, no pet.) (mem. op.) (child’s need for permanence is paramount consideration 

when determining present and future physical and emotional needs). Further, there was evidence

that domestic violence had occurred between the parents and that the violence posed a danger to 

Ella. Schroeder also testified that both parents missed multiple drug tests, that they both tested 

positive twice, that neither completed their services, that the parents did not visit regularly, and 

that they had not visited Ella in several months. Finally, Father left the trial early, and Mother

did not attend, although it is not clear why she was not present, and a parent’s failure to attend 

the final hearing may support a finding that termination is in the child’s best interest. See In re 
16

A.J.D.-J., No. 01-22-00724-CV, __ S.W.3d __, 2023 WL 2655736, at *8 (Tex. App.—Houston 

[1st Dist.] Mar. 28, 2023, no pet. h.) (parent’s unexcused failure to attend trial and other hearings 

is circumstance from which factfinder could infer that parent was indifferent to outcome of trial 

and to their parental rights and responsibilities). We thus hold that the evidence is legally 

sufficient to support the trial court’s finding of best interest.

We cannot, however, hold that the evidence is factually sufficient to support that 

finding. The Department did not present any evidence about the alleged violence between the 

parents beyond the cursory testimony noted above. Both Kelso and Schroeder referenced 

repeated instances of violence but neither provided any details, nor did the Department call any 

law enforcement or other witnesses or provide other evidence to explain or substantiate its 

allegations of violence. See City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009)

(“[I]f no basis for the opinion is offered, or the basis offered provides no support, the opinion is 

merely a conclusory statement and cannot be considered probative evidence, regardless of 

whether there is no objection.”). Schroeder testified that the Department sought to remove Ella 

because of its belief that Mother was not being a protective parent by continuing to have a 

relationship with Father, but beyond his statement that the parents had been involved in domestic 

violence he described as “extreme” without elaboration, he did not provide any explanation of

his concerns. Neither Kelso nor Schroeder testified about whether Ella was ever present during 

the domestic violence, much less whether she had been at risk of injury or other harm, beyond 

Schroder’s general statement that ongoing domestic violence can harm a child emotionally and

developmentally. Thus, although we have held that the evidence supports a finding that Ella was 

removed due to concerns that she was at risk of abuse or neglect, it does not rise to the level of 

clear and convincing evidence that Mother or Father actually posed a danger to Ella’s 
17

well-being.

6 See In re A.L.H., 468 S.W.3d 738, 746–47 (Tex. App.—Houston [14th Dist.] 2015, 

no pet.) (caseworker “did not present any factual bases to support her conclusory testimony. 

Unsupported, conclusory opinions of a witness do not constitute evidence of probative force.”);

see also In re A.L.R., No. 04-19-00349-CV, 2019 WL 5765793, at *5 (Tex. App.—San Antonio

Nov. 6, 2019, no pet.) (mem. op.) (testimony that home was “a very clear danger” because 

another child had died while living there was “wholly conclusory” because no factual evidence 

was presented to show that home was dangerous or that parents had negligently supervised 

child who died; record did not show that home study or other parenting evaluation was ever 

done, nor was there evidence presented about parents’ living conditions, parenting abilities, or 

financial means).

When seeking to terminate a parent’s rights, the Department “must meet the 

heightened burden to prove, by clear and convincing evidence, that the parent should no longer 

have any relationship with [their] children whatsoever”—it is not enough to prove that a parent 

should not have custody. In re M.A.J., 612 S.W.3d 398, 409–10 (Tex. App.—Houston [1st Dist.]

2020, pet. denied). Importantly, “[a] lack of evidence does not constitute clear and convincing 

evidence,” E.N.C., 384 S.W.3d at 808, and “[t]ermination is not warranted ‘without the 

most solid and substantial reasons,’” M.A.J., 612 S.W.3d at 409–10 (quoting Wiley v. Spratlan, 

543 S.W.2d 349, 352 (Tex. 1976)). In this case, the Department did not proffer evidence 

showing that the parents’ relationships with Ella were inappropriate, nor did it provide any 

6 We note that the Department’s burden of proof when seeking conservatorship is 

significantly lower than its burden of proof when seeking to terminate parental rights. Compare

Tex. Fam. Code §§ 262.101, .105, .201 (trial court may order child removed upon showing of 

“sufficient evidence to satisfy a person of ordinary prudence and caution” that child is at risk of 

harm), with id. § 161.001(b) (trial court may not order parental rights terminated unless it finds

clear and convincing evidence of statutory grounds and best interest).
18

evidence about the parents’ abilities to meet Ella’s emotional and physical needs now and in the 

future, their parenting skills, any programs available to help them promote the child’s best 

interest, their plans for the child’s future, or the stability of their employment or homes—

although there was evidence that both Mother and Father (at least until his arrest) were 

employed. See Holley, 544 S.W.2d at 371–72. The Department presented little evidence and no 

details about the circumstances giving rise to the child’s removal, and the scant evidence about

the domestic violence between the parents—the brief statements that violence occurred between 

them—does not establish that termination was in Ella’s best interest. And the Department 

provided even less evidence about the parents’ conduct since Ella’s removal.

The Department notes that neither Mother nor Father testified, asserting that 

Mother “did not avail herself to be called to testify by the Department.” “[W]hen a parent, who 

is a key fact witness in a termination case, refuses to attend trial, the record will necessarily be 

more limited than if he or she had testified.” A.J.D.-J., __ S.W.3d __, 2023 WL 2655736, at 

*10. Even if a parent refuses to attend, however, “this circumstance does not relieve the 

Department of the burden of proof or lower the burden of proof, but it may explain in a given 

case why the record is limited and why such a limited record does not ineluctably signal 

evidentiary insufficiency.” Id. In this case, the record does not reflect that the Department had 

attempted to call either of the parents as witnesses. Nor is it clear from the record whether 

Mother chose not to access the Zoom hearing or whether she had technical difficulties accessing 

the hearing. On this record, therefore, the fact that the parents did not testify cannot weigh with 

any significance in favor of termination.

Further, until the Department proved by clear and convincing evidence that 

termination was in Ella’s best interest, it was not the parents’ burden to rebut the Department’s 
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allegations. See In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.). In 

A.H., the Department conceded that the evidence on best interest was “limited” but argued that it 

was sufficient because the parent did not contradict the caseworker’s testimony or show that 

termination was not in the children’s best interest, but our sister court held that “due process and 

the Texas Family Code place the burden of proof on the Department to prove the necessary 

elements by the heightened burden of ‘clear and convincing evidence,’” and thus the 

caseworker’s conclusory testimony, even uncontradicted, did “not amount to more than a 

scintilla of evidence.” Id.

Because of the strong presumption that a child’s best interest is served by 

maintaining the parent-child relationship, we strictly scrutinize termination proceedings in favor 

of the parent, M.A.J., 612 S.W.3d at 409–10, bearing in mind that the presumption in favor of the

parents “disappears when confronted with evidence to the contrary,” Aguilar, 2012 WL 677497, 

at *8. And although evidence of every Holley factor is not required and evidence of statutory 

grounds may also indicate that termination is in the child’s best interest, such evidence does not 

relieve the Department of its burden of proving best interest. See C.H., 89 S.W.3d at 28. In this 

case, the Department presented little evidence beyond showing that Ella was with a foster family 

that was meeting her needs and hoped to adopt her and with whom she had bonded, and the bestinterest standard does not allow for termination simply because the child might be better off 

living with another family. C.C. v. Texas Dep’t of Fam. & Protective Servs., 653 S.W.3d 204, 

217 (Tex. App.—Austin 2022, no pet.); D.L.W.W., 617 S.W.3d at 81.

Applying the clear-and-convincing standard and considering all the evidence—as 

well as the lack of evidence of many relevant issues—we hold that the Department failed to carry 

its burden of providing factually sufficient evidence to support a finding that it was in Ella’s best 
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interests to terminate Mother’s and Father’s parental rights. See In re E.W., 494 S.W.3d 287, 

300–01 (Tex. App.—Texarkana 2015, no pet.). As the E.W. court explained:

The evidence before the trial court at the final hearing amounted to little more 

than a recitation that [the child] was in foster care, that his needs were being met, 

that he had bonded with the foster family, and that the foster family wanted to 

adopt him. Even if a parent’s behavior “may reasonably suggest that a child 

would be better off with a new family, the best interest standard does not permit 

termination merely because a child might be better off living elsewhere.”

Id. (quoting A.H., 414 S.W.3d at 807)); see also A.H., 414 S.W.3d at 807 (“[C]onclusory 

testimony, such as the caseworker’s, even if uncontradicted does not amount to more than a 

scintilla of evidence[, a]nd, ‘[a]lthough [a parent’s] behavior may reasonably suggest that a child

would be better off with a new family, the best interest standard does not permit termination 

merely because a child might be better off living elsewhere.’”).

CONCLUSION

We have held that the evidence is legally and factually sufficient to support the 

trial court’s finding of statutory grounds and legally sufficient to support the best-interest 

finding. However, the Department did not provide factually sufficient evidence to show that 

termination is in Ella’s best interest. We therefore reverse the trial court’s termination decree

and remand the cause for further proceedings.

7 See Tex. R. App. P. 28.4(c) (if appellate court 

reverses and remands parental-termination case for new trial, new trial must be commenced

within 180 days after appellate court’s mandate issues).

7 Because the parents do not contest the Department’s conservatorship, our reversal 

of the decree does not affect the conservatorship appointment. In re J.A.J., 243 S.W.3d 611, 

612–13 (Tex. 2007); E.W., 494 S.W.3d at 302.
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__________________________________________

Edward Smith, Justice

Before Justices Baker, Smith, and Jones*

Reversed and Remanded

Filed: May 18, 2023

* Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by 

assignment. See Tex. Gov’t Code § 74.003(b).