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

NO. 03
- 22
- 00722
- CV

S. L. and J. R. , Appellant s

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 CLEV E 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, w e reverse the order o f termination and remand for further proceedings.

PRO C EDURAL & FACTUAL SUMMARY In June 2021, the Texas Department of Family and Protective Services was

aw arded temporary m anaging conservatorship of Ella, who was about six months old . Th e Department attac h ed to its petition an affidavit of removal alleging r epeated 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 F ather for

1 F or the child ’ s pri vacy, we will refer to her by an alias and to her family members by their re lationships to her

. See Tex. R. App. P. 9.8.2 her and E lla ’ s safety

. The affida vit stated that the Department was seeking conservatorship due
to “ ongoing domestic violence ”

— asserting that there had been nine re ports of “ extreme domestic violence ” since March 15

— and because Mother “ ha s prov e n not to be a pro tec ti ve parent by continuing to have c ontact with [ Father ] after being told on multiple occasions not to have any form of contact with him to prevent fu rther es calation and danger to ” Ella

. After Ella ’ s removal, both parents were or dered t o remain in co ntac t with their caseworker and keep the caseworker informed of any change in their contact information; obtain and maintain sufficient income to support themse lves and Ella ; obtain and ma intain stable, sui table housing; partic ipate i n drug t esting; complete a drug and alcohol assess ment ( an OSAR ) and follow all recommendations; complete a ps ychological evaluation a nd follow all recommendations; and part icipate in individua l therapy

. In addition , Mother was ordered to complete a prot ective

- p a renting class and a program for domestic

- v i olence survi vors , while Father was orde red to complete a nurt uring

- parenting class and a Batterers In tervention Program

. When t rial commenced o n August 30, 2022, the Department provided its opening
argume nts , and t he trial cou rt then recessed the hearing until September 19

. 2 C onservatorship worker Shawn Schroeder testified that he had been assigned to the case in early August 2022, about seven weeks before the September 19 hearing

. A lthough Schroeder did not hav e personal knowledge of the earlier hi story of the case , he testifi ed that he had read the Department ’ s file in

2 The trial was held remotely via Zoom

. Mother did not attend

. H er attorney ini tially said she had called to te ll him “ that the l ink [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 ch oos i ng to merely view this on YouTube. ” F ather att en ded, but a bout t wo - thi rds of the way through trial , someone identif ie d in the report er ’ s record as
“ Unidentified Speake r ” said , “ Your Honor, [Father] doesn ’ t wish to be here anymore. And he i s becoming a l itt le b elligerent. So can he be excuse d? ” The tr ial court said, “ Th is is his choice. He has the absolute right to be here o r not be here. ”3 “ Impact , ” which includ es reports by the p revious caseworker and notes from the investigation
sta ge onward

. Schroeder tes tified that Imp act is w h ere the Department keeps “ case notes on anything and everything th at ’ s happened ” and that “ [i] f something happene d, you document it

. ” He also testified that it was standard practi ce for Department workers to “ record absolutely everything in I mpa ct ” and s t ated , “ We ’ re told that if y ou didn ’ t write it down, i t didn ’ t happen. ” Schroeder was asked whether he had verif ied any of the information contained in Impact , and he said , “ I rea d everything in the Impact. And that, t o me, is accurate. ” He agreed that h is opinion s in the case were “ based on the co nclusion [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 c a se to bring the new worke r u p to date on the case . Schroeder was not able to talk to his predecessor , so he discussed Ella ’ s case with his supervi sor and read the file in Impact

. He later testi fied that he had formed his opinion about Ella ’ s be st inte re s t by reading the file and speaking to his supervisor

. The parents objected to Sch roeder ’ s testimony about events predating his assignment as inadmissible hearsay and not based on his personal knowledge. The t rial court overruled the objection , r ul ing t ha t the Department had es tablished a pre di cate for Sch roeder to testify about the entire case and that Sc hroeder was “ testifying as a corpo rate representative , not as a traditional witness

. ” The court also overruled a n objection arguing that the De partmen t ’ s records had to be admitted into evid ence before Schroeder could testif y about them. See Tex. R. Ev id. 1002 (the “Best Evidence Rule ” )

. Schroeder t estified that the Department got involved with the family “ due to extreme domestic violence that h ad been r e ported to the Department. Also , ther e [were] nin e occasions since the onset of the case [on] March 15 th of 2021. ” He testified that the Department4 was conc e rne d that Mother “ had not proven to be a prot e c t ive parent ” because she continued to h ave c ontact with Father after being repeatedly cauti oned “ not to have any form of contact with him to prevent further escalation and danger to ” Ella. He stated that l iving in a home in wh ich there is “ ongoing domestic violence ” affect s a child emotionally and de velo p mentally

. Sc hroeder said that after t he Department was awarded temporary managing conservatorship in late July 2021 , the parents we re ordered to engage in services to address the concerns of domestic violence

. Mother was ordered “ to engage in psych ologic a l evaluation, individual therapy, protec tive parenting class, nurturing parenting class, random substance abuse
tests , ” a n OSAR evaluation, and a psychiatric evaluati on. Father similarly was o rdered to

“ participate in a psychological evaluation, in dividu a l therapy, protective parenting, nurturing parenting, also random substance abuse tests , . . . an OSAR e valuation, and a psychiatric evaluation. ” Schroeder said that Mother completed an OSAR in November 2021 and a psy chological evaluation in Decemb er 202 1 a nd that she had done three sessions o f indi vidual ther apy. Sc hroeder further testifi ed that altho ugh Mother claimed that she had completed a prot ective

- parenting class , she had not provided a certificate of completion , and that he r OSAR referred her “ t o follow up with I ntegral Care, which has not been completed. ” Asked about Father ’ s progress , Sc hroeder stated that Father had c ompleted a ps ychological evaluation in November 2021

. Schroeder testified that neither parent had “ f ully engaged in a ny of tho s e services provid ed to them ” and that the Department still had the same concerns for Ella ’ s safety

. Schroeder testified that Mot her was asked seven times to submit to drug test s and that Father wa s asked five times ; Mother and Fathe r each completed two te s ts, and both tes ted positive both times

. Schroeder did not t es tify wh at 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 to5 the case , stating , “ I want t o say th at the y were this year

. ” Schroeder could n ot 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

- test ed two weeks before trial and had sent him the test results

. A sked , “ And, in fact, she tested clea n on t h at day, didn ’ t she, ” Schroeder answered, “ I don ’ t have that right now. I would have to look that up. ” Schroeder testified that the parent s were allowed weekly visitation s but had not regularly visited Ella. He did no t say h ow ofte n the parents had visit ed but said that Father last visited the child in June 2022 and that Mother last visited in May 2022. S chroeder did not know either parent ’ s work schedule bu t conce ded that Mother ’ s schedule might have made visitations diffi c ult and said he knew Father “ was working on construction projects outside of Austin and sometimes out of s tate. ” S ch roder testified that if a parent reached out to change a visitation schedule because of work, he “ wou ld work with them ” to accommoda te the parent ’ s needs. However, n either 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

. S ch roeder said that Father had been incarcerated sever al wee k s before trial but did not provide any further details

. 3 He had “ [n]ot yet ” visit ed Father in jail an d said that before Father was incarcerat ed , he “ attempted to [visit Father] at the address that was pro vided. ” Schroeder did not testi fy about any visit s o r atte mp ted visits he or other caseworkers had with Mother

.

3 The Dep artment ’ s attorney st ated in her opening argument that Father had been arrested about a wee k before th e hea ring commenced in August “ for unlawful carryi ng of a we apon, ” 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

- o f

- county fe lo nie s . ” H owever, other than Schroeder ’ s st atemen t that Father had bee n a rreste d severa l weeks earlier , ther e was no ev idence provided about his arrest o r the status of any pending charges.6 Schroeder had met with Ella t wice, once in her placement and once at the Department offices when he sup ervised a visit

— he did not testify about the visit or which parent the visitation was wi th

. El la had been l iving with the same foster parents “ [ f ] or the entirety of this case, ” and thus most of her memories were of that family

. Sc hroeder s aid that Ella is “ doing great ” in the home and is “ happy, hea lthy, giggly, smiles. ” The foster fam ily hop es to adopt Ella, and th e Depar tment ’ 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 service s. The parent

— the parents had over a year to engage in serv ice s and have not done any of them. ” The Department wanted Ella to have perman en cy through adoption

. Cou rt Appointed Special Advocates ( CASA ) volunteer Gr a ce Kelso testified that she had been assigned to the case on August 24, 2022 , and that she had l earn ed ab out the case by speaking to her supervisor . Kelso had visited Ella once , and the supervisor and previous CASA volunteer had visit ed the child “ at least monthly since the s tart of the case ” a nd had attempted to
contact the parents and their attorn eys at le as t monthly

. Kelso testified that at the beginning of the case , CAS A was concerned about

“ domestic violence between the parents, specifically [Father ’ s] abusive behavior towards [Mother] , and the dangerous sit uations that that put the child, [El la], in , ” a nd that th e parents had not all eviated those concerns by working services. Kelso testified about how CASA determin es best interest, saying that it “ considers multiple different factors: the c hild ’ s safety, their emotional and physical well

- bein g no w and i n the futu re, the current placement, and if the child can safely return to their parents or not. In this ca se, it does not appear that that is possible. ” Kel so said that Ella will be two ye ars old in December and “ is a really sweet, bright, bub bly, youn g gi rl. She ’ s speaking a lot. She loves playing with her older foster sib ling.7 She loves going on swings. That ’ s her number one favorite thing to do. She ’ s just a really sweet, g reat, little girl. ” Ella is “ develop mentally on target , ” and h e r fo ster pa re nts “ 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 ’ right s wer e terminated, “ the foster parent s plan to adopt , ” and Kelso tes t ifie d tha t “ C ASA beli eves 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 testif ied that the foster parents plan to set up an e mail account to

a llow Mo th er to ha ve contact with Ella and tha t “ [p]otentially, in the future, they would consider

some future contact just depending on safety for [Ella]. ” At the concl usion of the hearing, the Department asked the trial court to take noti ce of “ the fact s of th e removal at the 262 hearing, as well as the [earlier orders ] that have been referenced throughout today ’ s hearing

. ” Father ’ s at torney objected th at disputed facts or findings were “ not appropriate for judicial notice. ” The tria l court ruled :

I ’ m overrul in g your o bjection as to taking judicial notic e, 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 tha t, w hich I do n ’ t know until I look through the entire file or at least to the 262 hearing, that it may be

— I may be limit ed 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 c ou ld take jud icial no tice of its file , it cou ld 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 corre ctly concluded th at it could tak e ju dicial notice of its own orders and recor ds , see In re R.S.D. , 446 S.W.3d 816, 8 20 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 o f the law o f an other jurisdiction ” ); In re J.E.H. , 384 S.W.3 d 864, 8708 The trial court later signe d a final de cree of t ermination, finding that termination was in Ella ’ s b est interest and that both Mother and Father had failed to c omply with a court order specif ying the actions necessary to regain c us tody of Ella, who had been in the De partment ’ s conservatorship f or at l ea st nine mon ths afte r her removal for abuse or neglect. See Tex. Fam. Code § 161.001(b)(1)(O), (2). Both parents challenge the court ’ s findings o f best interest and statu tory grounds.

STANDARD OF RE VIEW

“ Parental rights are ‘ far more precious tha n any p ro pert y right , ’ and w hen the State initiates a termination proceeding, ‘ i t 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

– 5 9 (1982 ))

. T he Depa rtment t herefore m ust overco me 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 carefull y scrut in ize termina tion pro ceedings, ” 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. ” Agui la r v. Foy ,
(T ex. 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 no t of the tr

u th of allegations in those records , see Tschirha rt v. T schirh art , 876 S.W .2d 507, 508 (Tex. App.

— Austin 1994, no writ)

. Thus , the tri al cou rt could take judicial notice of its orders , including those requiring cer tain actions by the parents, b ut not of t h e f actual allegations made by the Department or CA S A. See R.S.D. , 4 46 S. W .3d at 8 20 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. Se e In r e D.L.W.W. , 617 S.W.3d 64, 91

– 92 (Tex. App.

— Houston [1st Dis t. ] 2020, no pet.) ; se e a lso 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 tran scripts are adm itt ed 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 pare nt ’ s rights, the Department must establish by clear and convinc ing evidence (1) that the parent engaged in conduct t hat amo unts to a t least one statutory
g round for termination and (2) that ter mination is in the child ’ s best interest

. Tex. Fam. Code § 161.001(b); I n re J.W. , 645 S.W.3d 726, 740

– 41 (Tex. 2022)

. “ [C] onjecture or a preponderance of evidence is not enough

. ” In r e 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 b el ief or conviction as to the truth of the allegat ions soug ht t o be
est abl ished.” Tex. Fam. Code § 101.007; In re A.C. , 560 S.W .3d 62 4, 630 (Tex. 2018). T he distinction between le gal and factual sufficiency “ lies in the extent to which disputed ev idence

co ntrary to a finding m ay be consi dered.” A.C. , 5 60 S.W.3d at 630. In re viewing leg al sufficiency, we view the evidence in the light most favorable to the factfinder ’ s determination, including undisputed contrary evidence, and assume the factfinde r resol ve d disputed f acts in f avor of its finding. Id . a t 63 0

– 31. In reviewing fa ctual suf ficiency, we weigh the f avorable evidence against disputed evidence and ask whether the evidence “a reasonable factfinder could not have credited in favor of a find ing is so sign ificant tha t the factfinder coul d not have formed a f irm belie f 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 arbite r when assessing the cr edibility and demeano r of wi tnesses.” In re A.B. , 437 S .W.3d 498, 50 3 (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 tes tify ab ou t the court orde rs setting out the actions requi red of Father : “The o rder 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 testi fy about “what he thinks [ the or der] was. ” Mother and Father later objecte d to Schroede r ’ s testimony about the case before his assignment. Father o bjected “ to this witness giving just blanket testimony. I previously objected to hearsay on the orders, but his

— his whole
te stimony is not hing but hearsay. ” Mother joined that obje ction and add ed 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. 10 02. Th e Depar tment was permitted to “ go bac k and lay a m ore proper fo undation for Mr. Schroeder to be able to testify to the entirety of this case ” by asking Schroeder about Impact and the Departm ent ’ s policies about what information is entered into Impac t and h o w case s are passed between caseworkers

. After he aring those e xplanations, t he 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 a lso not e d that Schroeder was “ not testifying to what is w ritten in Imp act, 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. ” Fat her ask e d for a running objection , which the court grante d. O n appea l, Father arg ues that the tr ial court abused its d iscretion in admitting Schroeder ’ s testimony because it was based not on personal knowledge but on Department11 records that were not intr oduced in t o ev idence. 5 However, we cannot hold that the trial cou rt

a

bused its discretion in deciding that Schroeder, a Department representative who had familiar ized himself with the records in the case and who explained what information is contained in the Depar t ment ’ s records and how it comes to be in the file , could tes tify about the facts that occurred befor e 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 ) ;

s ee, e.g. , In re E.C.S. , No. 14

- 19

- 00039

- CV, 2019 WL 258 9943, 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 case workers w h o worked on the case, Brandy Matthews, was unavailable for t rial. Brod was familiar with the

reco rds 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 Anton io Aug. 8, 2018 , pet. de n ied) (mem. op. ) (cas e worker w as asked what had caused c hildr en to come into Department ’ s care , and Father lodged hearsay objecti on ; court of appeals held that trial court could have concluded that testimony was not inadmissible hearsay because ca seworker h ad kn owledge of case, did not relay out

- of

- c ourt statement , and explained what caused Department ’ s involv e ment with family )

. We thus overrule Father ’ s complaints related to the trial court ’ s ruling that Sc hroeder could testify about information he learne d about the case from th e Department ’ s records in Imp act

.

5 Father raises the sa me complaint as to K els o, but al though the parents objected on hearsay and best

- evidence grounds when Kelso was asked ab out CASA ’ s a ttempts to contact the parents, t he Department withdrew that ques tion, and t he parents did not object again

.12 Sta tutory Grounds Both parents challenge the sufficiency of the evidence showing that E lla was removed for abuse or neglect so as to support the trial court ’ s finding of statutory grounds u nder Subs e ction O . F ather also argue s that the evid ence 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 ”

— i t is not n e cessary that a child actually suffe r phys ical or emotional harm , and the Depar tment 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 s ubsection O requires removal under chapter 262 for abuse or neglect, those word s are used broadly. ” )

. T h e supreme co urt has instructed us that when we are considering whether the trial court determined that removal was ju stified due to a risk of abuse o r

n eglect , we should consider tri al

- court order s and should even consider aff idav its of rem oval,

“ even if not evidence for all purposes

. ” Id

. at 248

– 49. Schroeder and Kelso both testifie d with out objection that Ella was removed due to domestic vio lence , wit h Kelso noting that Father ’ s ab usive behavior toward Mother placed Ella in je op ardy , and with Sch roeder stating that the d omestic violence w as “ extreme ” and occurred nine times in a four

- month span . Schroeder also explain ed that ongoing domestic violence

a ffect s a child emotionally and devel opmentally

. Moreover, Schroeder testified that the Department was c oncern ed at the be ginning of the case that Mother was not acti ng a s a protective parent because she continued to have contact with Father des pite being cautioned not
to and that the parents had not alleviated those concerns

. T he t rial court’s Temporary Order13 Following Adversa ry Hearing award ed the Department tem porary managing conservatorship and include d a finding that :

there is sufficient e videnc e to s atisfy a person of ordinary prudence and caution that: (1) there was a danger to the physi cal health or safety of [Ella] which was caused by an act or failure to act of the [pa rents] from whom [Ella was ] removed. The Court further finds that i t is contra r y to the welfare of [Ella] to remain in the home of [ Mother ] or of [ Father] , a nd; (2) the ur gent need for protection required the immediate removal of [Ella] and reasonable eff orts consistent with the circumstances and providing for the safety of [Ella] w e re made to eliminate or prevent the removal of [Ella] ; and (3) reasonable eff orts have be en made to enable [Ella] to return home to [Mother] or [ Father] , but there is a substa ntial risk of a continuing danger if [Ella is ] returned home to [Moth er] or [ Fat h er]

. (Emp has e s added.) In l ater permanency - hearing orders , the court found that the parent s had “ not

m ade the progress necessary to alleviate the causes that necessitated placement of [E ll a ] outside of the home; and t hat it is therefore not in the best i n terest of [Ella ] to return to the home at this time. ” Thus, when we consider the testimony by Sc hroeder and Kelso, combined with the trial court ’ s orders and the aff ida vit o f re mov al

— a d ocument that we will consider only in th is limited inqui ry as to why t he trial court ordered the child ’ s removal

— we hold that although it is a close question, the evidence is legally and factually sufficient t o support a finding th at the trial court ordered Ella removed f or abuse or neglect. See id

. ; T. M. v. T exas 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. )

. A s for the evidence of F ather ’ s failure to comply with the court ’ s order , Schroeder testified that Father had only completed tw o drug tests and a psychological evaluation , that he had missed numerous drug tests , and th at the parents h a d “ not f ully engaged in any of those services provided to them

. ” In addition, Schroed er testified that Father tested positive on two14 d rug tests. S e e In re J.Q.J. , No. 01

- 18

- 01094

- CV, 2019 WL 2292991, at *7 (Tex. App.

— Houston [1st D ist

. ] May 30, 2019 , no pet.) (mem. op.) (in cluding missed drug tests in recitation of evidence of failure to comply with court order ) ; In re J.M.T. , 519 S.W.3 d 258, 26 7 (T e x. App.

— Houston [1st Dist.] 2017, pet. denied) (“A parent ’ s failure to complete one requirement of her [fa mily service plan] supports termination under subsection (O).”)

. Further, t he trial court ’ s permanency - hearing order s recit ed that the parents had n o t made sufficient progress to ob tain Ella ’ s return

. A lt hough the evidence presented in this case meets on ly th e bare minimum, we ho ld, given Sc hroeder ’ s outright statement that n either parent had complied with the requirements placed upon th em , that th e e vidence is legally and factually su fficient to support a finding of statutory grounds under Subsection O

.
B e st Interest Finally, we turn to the pa rents ’ challenge to the sufficiency of the evidence supporting the trial court ’ s finding that t ermination is i n Ella ’ s best interest. We review a trial court ’ s best

- interest determination in light of the considerati ons

s e t o ut in Hol ley v. Adams , taking into acco unt the child ’ s wishes , their emotional and physical needs now and in the future, presen t and futur e e m otional or physi cal dang er posed to the child , the parenting skills of those seeking custody, any program s ava ilab le to ass ist those seeking custody to p romote t he c hild ’ s best interest, plans for the child ’ s future, the stability of the hom e or propos ed p lacement, conduc t by the parent that might show that the parent

- child relationship is inappropriate , and any e xcus es for th e parent ’ s conduct. 544 S.W.2 d 3 67, 371

– 72 (Tex. 1976). The Holley factors are not exhaustive , they need not all be proved, and a l ack of evidence ab out

some of the factors does not “preclude a factfinder from reasonably forming a str ong convi ctio n15 or beli ef that termination is in the chil d ’ s best interest, particularly if the evidence were undisputed that the parental relationshi p e n dangered the safet y of the child.” In re C.H. , 89 S.W.3d 17, 27 (Tex. 2002). However, the “ presence of sc ant e vidence relevant to each factor will not support such a finding. ” In re A.W. , 444 S.W.3d 690, 693 (Tex. App.

— Da llas 2014 , p et. d enied ) (cit ing C.H. , 89 S.W.3d at 27 ). Further, a lack of evidence contradict ing a finding cannot be viewed as “ if it wer e evi dence supporting the finding ” and “ does not constitute clear and convincing evidence. ” E.N.C. , 384 S.W.3d at 808

. The Department presented evi d ence that Ella was happy in her foster home , doing well and developing appropriately, and bonded to the fam il y, which hoped to adopt her , and that
t he Department ’ s plan for Ella was unrelated adoption. That evidence weighs in favor of the t rial
court ’ s f i nding that termination is in Ella ’ s best interest. See C. F. v. Tex as 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 , cou rts may consider evidence that s he is bonded with and loved by foster family ) ; L.R. v. Texas Dep ’ t of Fam. & Pr otect ive Servs. , No. 03

- 18

- 0012 5

- CV, 2018 WL 3059959, at *1 (Tex. App.

— Austin June 21, 2018, no pet.) (mem. op.) ( child ’ s need for pe r manence is par a mou nt consideration when determin ing present and future physical and emotional needs )

. Further, t here was evide nce that domestic violence had occurred between the parents and that the violence posed a dang er to Ella

. Schroed er also tes tif i ed that both p a rents missed multiple drug tests , th at they both teste d positive twice, that neither com plete d their services , that the parents did not visit regularly , and that they had not vis ited Ella in several months. Finally, Father le ft the tria l e a rly, and Mothe r did not attend , although it is not clear why she was not present , and a parent ’ s fa ilur e to attend the final hearing may support a finding that termination is in the child ’ s best interest

. See In re16 A.J.D.

- J

., No. 01

- 22

- 0072 4

- CV, __ S

. W.3 d __, 2023 WL 2 6 55736, at *8 (Tex. App.

— Houston [1st Dist. ] Mar. 28, 2023 , no pet. h.) (parent ’ s unexcused f ailure to at tend trial and other hearings is circumstance from which factfinder could infer that parent was indifferent to outcome of trial and t o t h eir parental r i ghts and responsibilities )

. W e thus h old that the ev idence is legally sufficient to support the trial c ourt ’ s finding of best interest. We cannot , however, hold that the evidence is factually sufficient to support that findin g . T he Dep art m ent did not pr e sent any evidence about the alleged vi olence between the parents beyond the cur sory test imony noted abov e . Both Kelso and Schroeder re ference d repeated instances of violence but n either p rovided any details , nor did the Depa rtment call any law enforcemen t or other witnesses or provide other evidence to explain or substantiate its allegati ons of vi olence

. See City of San Anto nio v. Po llock , 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 merel y a conclus ory statement and cannot be considered probative evidenc e, regardless of whether there is n o objection. ” )

. Schroeder testified that the Department sought to remove Ella because of its belief tha t Mother was not being a pro t ective parent by conti nu ing to have a relationship with Father, but beyond his statement that the parent s had been inv olved in domestic violence he desc ribed as “ extreme ” without elaboration, he did not provide an y explanati on o f his concerns . N either Ke l so nor Schroeder testified about whether Ella was ever present during the domesti c violence , m uch less whether she had been at risk of injur y or othe r harm , beyond Sch roder ’ s gene ral statement that ongoing domesti c violence can harm a child emotionally an d devel opmentally

. Thus, a lthough we have held that the evide nce supports a finding that Ella was removed du e to concerns that she was at risk of abu se or neglect , it does not rise to the level of clear and convi n ci ng eviden ce t hat Mother or Father actual l y pose d a danger to Ella ’ s17 well

- b eing

. 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 co nclusory testimony. Unsupporte d, c onclusory opinions of a wit n ess do not constitute evidence of probative force

. ”) ;

see a l so I n re A.L.R. , No. 04

- 19

- 00349

- CV, 2019 WL 5765793, at *5 (Tex. Ap p.

— S an Antonio Nov. 6, 2019 , no pet.) (mem. op. ) ( testimony that home was “a very cle ar danger” bec a use another chi ld had died w hile living there was “ wholly conclusory ” because no factual evidence was presented to show that home was dangerous or that pare nts had negligently supervised child who died ; record did not sho w that home study or other pare nti n g evaluation was ever done , nor was there evidence presented about parent s ’ living conditions , parenting abilities , or financial means )

. When see king to terminate a parent ’ s rights , t he Department “ must meet the heightene d bu rden to prove, b y cle ar and co n vincing evidence, that the p ar ent 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. den i ed )

. Importa ntly, “ [a] lac k 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 ( quot ing Wiley v . S p ratlan , 543 S.W.2d 349, 352 (Tex. 1976) ). In this case, t he Depart ment did not proffer evidence showing that the parents ’ relationship s with Ella were inappropriate , nor did it provide any

6 We note that t he Depar tment ’ s bur d en of proof when seek ing conservatorship is significantly lower tha n its burden of proof when seeking to terminate parental rights

. Com pare Tex. Fam. Code § § 262. 10 1 , . 105,

. 201 ( trial cou rt may order child removed upon showing of

“ s uf ficient ev idence to sat isfy a person of ordinary prudence and caution ” that child is at risk of harm), with id . § 161.001(b) (trial c ourt may not order p arental rights terminat ed unless it finds clear and c onv inc ing evidence of stat utory grounds and best i nterest).18 evidence about the parents ’ abi lit ies to meet Ella ’ s emotional an d physical needs now and in t he future, their parenting skills , any program s availab le to help them p romote t he c hild ’ s best interest, their plans for the child ’ s future, or the stability of their employment or homes

— alt hough there was evid ence that b oth Mother and Father ( at least u n til his arrest ) were employed

. See Holley , 544 S.W.2 d a t 371

– 72

. T he Department presented little evidence and no details about the circumstances giving rise to the child ’ s removal , and t he scant evidence about the domest ic v iolence between the parents

— t h e brief statements that violence occurred between the m

— does not establish that termination was in Ella ’ s best interest. And t he Department
pro vi ded even less evidence about the parents ’ c onduct since Ella ’ s re m oval.
T h e D epa r tment notes that neither Moth e r nor Father testified, asserting that Mother “ d id 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 r ecord wi ll nec e ssarily be more limited than i f 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 circu mstance does not relieve the
D e partment of the burden of proof or lower the burden of pro o f, but it may explain in a gi v en case why the record is limited and why such a limited record does not ineluctably signal evidentiary insufficiency.” Id

. In this ca se, the record does not reflect that the D epartmen t had attempted to call e ither of th e p a rents as witnesses. Nor is i t clear from the record w hether Mother chose not to acces s the Zoom hearing or whether she had technical difficulties accessing the hearing . On th is record, therefore, t he fact that the parents did n ot testify c annot weigh wi t h any significan ce in favor o f termination

. Further, u ntil the Department prov e d by clear and convincing evidence that
te rmination was in Ella ’ s best interest , i t was not the p arents ’ burden to rebut the Dep artment ’ s19 allegations

. See In re A.H. , 414 S .W. 3 d 802, 807 (Tex. App.

— San Ant o nio 2013 , no pet. )

. I n A.H. , the Depar tment conce ded that the evidence on best interest was “limited ” but argued that it was sufficient because the parent did not contrad ict the caseworker ’ s testimony or s how t hat termina tio n was not in the children ’ s be s t interest , but our sister court held that “ due process and the Texas Family Code place the burden o f proof on the Department to prove the necessary elements by the heightened burden of ‘ clear and convincing evi den ce , ’ ” an d t h us the

cas ewo rker ’ s conclusor y te stimony , even uncontradicted , did “ not amount to more than a scintilla of evidence

. ” Id.
B ecause of the strong presumption that a child ’ s best interest is served by mai ntaining the parent

- child relat ionship , we s trictl y s c rutin ize termination proceedi n gs in favor of the parent , M.A.J. , 612 S.W.3d at 409

– 10 , bearing in mi nd that th e presu mption in favor of the parents “ disappears when confronted with evidence to the contrary , ” Aguilar , 2012 WL 677497, at *8

. A nd a lthoug h e v idence of every Holley factor is not required and evidence of statutory grounds may also indicate that termination is in the chil d ’ s best interest , such evidenc e does not relieve the Department of its burden of proving best interest

. S ee C. H. , 89 S.W. 3d a t 28

. In this case, t he Depa r tment presented little evidence beyond showing that Ella was with a fost er family that was meeting her needs and hoped to adopt her and with whom she ha d bonded , and t he best

interest standard does not allow for terminatio n s i mply because the child might b e better off living with another fam ily

. C. C. v. Texas Dep ’ t of Fam. & Protective Servs. , 653 S.W. 3d 204, 2 17 (Tex. App.

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

. Applying the clear

- and

- convincin g stan dard and co n si d ering all the evidence

— as wel l as t he lack of evidence of many relevant issues

— w e hold that the Departmen t failed to carry its burden of providing factually sufficient evid ence to support a finding that it was in Ella ’ s best20 interests to ter minate Moth er’ 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 tha n a recitation that [the child ] w a s in foster care, that his ne e ds were being met, that he had bonded with the foster family , and that the foster famil y wanted to adopt him. Even if a parent ’ s behavior “ may reasonably suggest that a child would be better off wi th a new fami ly, the bes t i n terest standard does not perm i t termination merely because a child might be better off liv ing 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 uncontradic ted do es not amount to more than a

s cintilla of evidence[, a]nd, ‘ [a]lthough [a parent ’ s] behavi or may reasonably suggest that a child would be better off with a new family, the best interest standard does not permit termin ation merel y because a child migh t b e b etter 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 . H owe ver , the Department did not provide factually su ff icient evidence to show that
te rmination is in Ella ’ s best interest . We there for e rev erse the trial court ’ s termina tion decree and remand the cause for further proceedings

. 7 See Tex. R. App. P. 28.4 (c) ( i f a ppellate court reverses and remands parenta l

- te rmination case f or ne w trial, new trial must be commence d within 180 days after appellate court ’s mandate issue s )

.

7 Because t he parents do not contest the Department ’ s conservatorship, our reversal of the decree does not affect the conservatorship appoin tment. In re J.A.J. , 243 S.W.3d 611, 612

– 13 (Tex. 2007 ); E.W. , 494 S.W.3d at 30 2

.21 __________________________________________ Edwa rd Smith , Justice Before Jus t ices Baker, S mith , and Jones* Reversed and Remanded Filed: May 18, 2023 * Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appe als, sittin g by ass ignment. See Tex. Gov ’ t Code § 74.003(b).