## In the Court of Appea ls Second Appel late Dis trict of Texas at Fort Worth

___________________________ No. 02

- 23

- 00047

- CV No. 02

- 23

- 00048

- CV

___________________________

On Appeal from the 442nd District Court Denton County, Texas Trial Court No s . 20

- 6433

- 442 , 21

- 5531

- 442
Before Sudderth, C .J.; Bassel and Wallach, JJ.

Memo randum Opinion by Justice W allach 

### I N THE 

### I NTEREST OF 

### J.W., A 

### C HILD2 MEMORAN DUM O PINION Appellants Adam and Lilly Hamilton 1 appeal from the trial court ’ s amended order (the Order) in the adoption proceeding that they filed r egarding two

- year

- old J.W. ( Jacob ) and in the chi ld protecti on sui t co ncerning J acob in whic h the Hamiltons had intervened

. The O rder , which was effective in both proceedings, dismissed the Hamiltons from the child protection suit and den ied the ir motion t o waive some of the Family Code ’ s adoption requirements

. 2 S p ecific ally, the Hami l tons had requeste d a waiver of the requirement s that the child reside with a person or persons wanting to adopt and th at the child ’ s managing cons ervator consent to the adopti on. S ee Tex. Fam. Code Ann. § § 16 2.009, 162.010

. The child had not been l iving with the Hamil t ons , and the child ’ s mana ging conservator, the Department of Family and Protective Services (th e D epartment ) , had refused to consent to the Ham iltons ’ ado ption

. In fo ur issues, the Hamil tons argue that they establish ed a s a ma tt er of law that the D epartment’s refusal to consent to the adoption was without good ca use (issue four) and that the trial court erred by signing the Order and denying their motion t o vacate the trial court ’ s O rder (issue on e), by granting the Depar tment ’ s motion for

1 To protect th e anonymity of the child associated with thi s appeal, we use p seudonyms to ref er to him , Appellants , and the family w ith whom he has been living

. See Tex. Fam. Code Ann . § 109.002(d); Tex. R. App . P. 9.8( b)(2).

2 The O rder furthe r denied all other relief re q uested b y the Hamiltons

.3 d irected verdict (issue two), and by denyi ng their request t o waive the consent requirement (issue three)

. Because some evidence supported the trial court ’ s finding and t he Hamiltons ’ evidence was insuff icient to prove as a matter of law that th e Department lack ed good cause , we will affir m. Background Jacob ’ s bio log ical mother (Mother) gave birth to Ja cob in August 2020, whi le Mother was i ncarcerated. M o ther had thr ee other children (t he sibl ings) wh o had previo usly been taken into th e D epartmen t ’ s care because of Mother ’ s drug use

. Tho se child ren had been placed with Natalie and Charles Kent , but at som e point, the placement was cha n ge d to th e Hamilton s. Th e sibli ngs were st i ll with the Hamiltons when Jacob was born. Two days after J ac o b ’ s birth , the Department filed a child protect ion su it regarding Jacob and took him in to its care . Mother wa nted Jacob placed wi th the
Kent s , and the Depar tment agreed to the pla c ement
. Because the Kent s had a

“ supportive relationship and ment or i ng role ” w ith Moth er , the D epartment considere d the Kent s to be Jacob ’ s fictive kin as well as fost er par ents. In D ecember 2020, i.e., a round four months after Jacob ’ s birth, the Hamilton s adopted Jacob ’ s siblings. In April 2021, w he n Jacob was eight months old, the Hamilto n s intervened in the child protectio n suit s eeking termin ation of Mo ther ’ s p a rental rights to Jacob , ter mination of the father ’ s rights , and appointment as4 managing conservators. After Mot her ’ s atto rney objected th at the Hamiltons lacked stand ing t o interv ene , the y f iled a petiti on for adoption in a separa te proceeding. Before a trial court may grant an adoption, the child m u st have resided for at least six months with the person seeking the adoption

. Id

. § 162.009

. Further, unle ss the person seekin g ado pti on is the child ’s managing con servato r, the manag ing

cons ervator must give writ t e n consent for the adoption. Id

. § 162. 0 10

. However, the trial court may waive the residency requirement if doing so i s in the child ’ s best interest , and the manag ing c onser vat or ’s conse nt is not required i f the t rial court finds tha t cons ent is being re fu s ed without good cause. See id

. § § 162. 00 9 , 162.010

. In the Hamilton s ’ intervention petition , they asked the trial cou rt to waive the consent

re quirement. Th e trial cou rt signe d temporary or ders al lowing the Hamilton s t en hours ’ visit ation p er week. In December 20 21 , the Kent s intervened in the child protection suit. They requ ested continuat ion of Jacob ’ s placement with the m, term ination of an y rights that the Ha milton s had to J acob , and t ermination of Jacob ’ s b i ological parents ’ parent al rights

. In early 2022, both biological parents volu ntarily relinquished the ir parental rig hts. In June 2022, t he Department moved to dismiss th e Hamil ton s as intervening parties in the c hi ld pr o tec tion suit and to dismiss their adop ti o n petitio n on the basis that the Department had not consented to their adopting Jacob

. The Hamilton s th en5 filed in t he adop tion proceedi ng a mo tion to waive the co nsent and residency
req u irements. 3 The trial court h eld a hearing in August 2022. The Ha miltons called four witnesses : Carla Johnson , the director of Kids First, Inc., a child place men t agency ; Christina Ross , t he casew o rker ; Dr. Brooks McKenzi e , a psychologi st ; and Lilly Hamilton

. Most of the testi mony cen tered on three topi cs: (1) the Hamiltons ’ parenting ability and readin ess to ad opt , (2) federal a nd state policy rega rding s ibling placements in foster care , and (3) the fact t hat Jacob was not placed with the
Ha miltons despite the siblings being i n their care. Regarding the first top ic, Johnson testified that e xcept for one lapse, the
H amilton s had maintained their l ic enses a s a foster home and adoptive home thr ough out the proce edings. She also testified that the Kents had previously been licensed through her agency but were not still licensed with that agency at th e tim e of trial

. However, th ere was “ nothing that was c oncerning or a reason [the agency] had

3 On appeal, the Hamiltons do not cite Section 162.009 and do not make any express a r guments challengi ng the trial court ’ s failure to waive the residen cy requirem en t , and that ground provide s an alternative b asis on which to affir m th e Order ’s denial of the i r petition

. S ee Tex. Fam. Code Ann. § 162. 00 9 (a). However, even if we assume d for purposes of this appeal that they impl iedly ch allenge th at part of the Order thr ough their assertions that it is in Jacob ’s best interest to be wi th h is sibl ings , see id

. § 162. 00 9 (b) (stating trial court may waive residency requirement if doing so i s in child ’ s best interest ) , we would not need to address the argument beca u se of our holding re garding the con sent requirement

. See Tex. R. A pp. P. 47. 1.6 to close them, ” and she had no more information about why the Kents had left the
agency. Joh nson fur ther testified about the home study that she h ad prepared f or the Hamilton s . Ro ss was also asked abo ut a h ome study that the trial court had ordered the D epartment to conduct on the Hamil ton s ’ home , separate from the one that Joh nson ’ s placement ag ency had done

. That order had been signed before Ross bec ame th e c aseworker, and she te s tified that she did not know whether that study ha d b een done. However, Lilly testified tha t the Department had done th e study

. Dr. McKenzie t estified about a child ’ s a ttachmen t to caregivers and whet her he believed that Jac o b would do well in t he Hamiltons ’ care .

• Dr. McKenzie explained that a child starts for ming attachments between six months and ei ghte en months of a ge and that after eighteen mon ths ,

“ it starts to expl ode unt i l 3, 4, 5 years old ” in emotiona l age .

• At two y ears old, Jacob was “ in that explosive sta ge. ”

• Asked if a c hild woul d be damaged b y being moved from a h ome in

w hich th e child had formed a se cure attachment to the caregivers , Dr.
Mc Kenzie responded, “ [T] hat will absolutely devastate a child. ”

• Nevertheless , based on his observations of the Ham ilton s and the siblings , he thought that a child m oving into the Ham i ltons ’ home would7 probably experience the same positi ve outc ome as th e sibling s had

. He des cr ibed the H amilton s ’ home as an “ ideal p lacement for a ny child

. ”
D r . M cKenzie could not testify about the attac hment that Jacob had to th e Kents because he had not observed them together. Ross , howe ver, stat ed that Jacob is doing w e ll with the Kent s , t h at t he irs wa s th e on ly home he had ever known , that he appeared to be bonded with the Kents and their children , and that she believed it

wou l d be det rim ental and traumatic to move him from that home

. She stated that i n her opinion, consid ering all of his needs , it wou ld not be in his best interest to move him. The Hamiltons prod uced no evidence to contradict Ross ’ s t e stimony about how well Jacob was doing in the Kents ’ care, a nd Lily s tated that as far as she knew, Jacob loved th e Kents and seemed happy

. As for p olicie s around sibling placements, the Ha miltons asked Ross to read from various Depa rtment publ i cations relating to the De partment ’ s policy of placing sibli ngs to get her

.

• From a Department d o cument ent itled, “ C PS Rights of Children and Youth in Foster Ca re, ” Ros s read aloud a section stating that a child has the r ight to live with their siblings in f ost er care “ if possible, ” and if not , to know why. The secti on furthe r states that “ [ i ] f ther e are no safety or

ot her compelling reasons ” why a child in foste r care c annot live with their siblings, then it is “ the caseworker ’ s job to try and fin d a ho me ” i n which the siblings can live togethe r.8 • T he Depar t men t has a “ P lac ement Process Res o urce Guide, ” which i s intended to help Department employees “ do [ t heir ] jo b bette r ” but is not a substitute for D epartment polic y . From that docume n t, Ross read

a lou d a section stating that “ [f] ederal law an d guidance , state law , and b est pr a ctice call for ” the Department and courts to “ prioritize placements with relatives and o ther ind ividuals with whom the child is connected , ” including siblings who have been ado pted

.

• Ross al so read a section of the same gui d e stating that under federal law, the Department “ must make reasonable effor ts to place siblings together unless [it ] doc uments t hat doing so is contr ary to the s afety or well

- being of one of the siblings ” and that if the siblings are not placed together, the Department must pr ovide for visitation or other interaction unless doing so would be un safe.

• Ross had been the casewo rker for only four m o nth s , but she stated that she could not r ecall an y documen tati on o f efforts to pla c e the siblings toget her , that the case file did not contain documentation of conversations with the Hamiltons , and t hat she was not aware o f any safety concerns with the Hamilton s ’ home.
E a ch side e licited testimony about J acob ’ s placement wit h the Kents instead of the H am iltons.9 • Ross testified that it was her understanding that t he Hamilt on s had decline d to take Jacob when he was first taken into care , a nd she s aid that the Hamiltons ’ not wanting h im to be placed in their h ome was a “compellin g reason ” to place him elsewhere

. Ross further testified that “[r]egardless of that,

. . . the least restrictive [placement] w ould have been considered first, [and] one of t ho se would be to place with fictive k

in, which the [Depar tment] also considers lik e [a] relative. And [the Department] would consider the request of the parent. ” Ross testified that Mother wanted Jacob placed with the Kents and that the Kents maintaine d a relationship with both Mother

— with whom they had a

s upp ortive and mentoring relations hi p

— and the biological father while ensuring all contact betw een the parents and Jacob was safe

. Those considerations supported placemen t with the Kents.

• Lil ly disput e d th at th e Hamiltons ha d been offered Jacob ’ s placement when he was taken into care; she contended that th e Department had not contacted them at that time. However , she and Adam were aware of Jacob ’ s birth because Na t alie sent her a picture of Ja cob after his birth

.

• L il ly d id not deny that she and Adam did not want to take Jacob at th at point

— she testified th at she and Natalie were both concerned about10 how the siblings would be aff ected if th e Ha milton s too k in Jacob and h e was later re united wi th Mother

.

• L illy stat ed that she and Natalie had discussed the Kent s ’ taking Jacob initially and the H ami lton s ’ taking placement of him if his biological parents ’ rights were term in ated. 4

• L i lly said that she told a cas e worker 5 that she and her husband “ w ould go ahead and ta ke ” Jacob, and she also said that based on statements from the caseworker , “ [her] understanding [was] that the casewo rker understood [ that ] the Kent s would ser ve as a brid g e placement until it

was mor e secure with [Mother] ’s outcome ” an d that the cas ewor ke r

“ already knew about the plan ” when Lily mentioned it to her. However, Lily did not say when her conversation with the caseworker took place

.

• O n c r oss
- examinat ion , Lil l y a ck no wledged that when Jacob was born, she did no t tell the Departmen t that sh e and her h usband want ed Jacob

4 In addition to this conversation, Lilly also testified about an earlier conversation in January 2020 , when Lilly first learned from Nat alie tha t Mother was pregnant ; Lilly test i fied that at that time, she told N atalie that t he Hamilton s wo uld be ex cite d t o have Jacob. H owever, at that p oint , which was early in Mother ’s preg nancy, the Department was not involved , and thus the re was no need for a placement decision

.
5 Ross was the third case worker on t he case , and the sib lin g s also had a case worker

. I n most of Lily ’s testimony, when she referenced a cas eworker, she did not identify the casewo rker to wh om she was referring.11 and that , even after they adopted the s ibl ings , did not ask to be Jacob ’ s placement

. Lilly adm i tted that she did not mention to the caseworker that they wanted Jacob unt il he was over five mont hs old . She further ack nowledged that they had contact with the Department bec ause of their adoption of the siblings

.

• Lilly testified tha t after Jacob was born, they co n tacted the caseworker more than ten time s about a rranging a visit, but th e c ase worker only

once returned thei r c all to s ay t hat s he would get back to them , and then she never did

. She did not say , however, when after his birth these contacts occurred.

• Lilly further acknowledged tha t aft er J acob was placed with the Ke nt s in August 2020 , she and her hus band d id not ask the Ke nt s to se e him and did not meet him until January 2021

. When Jacob had issues with a hemangioma , the Hamiltons did not ask the K e nts how h is doctor ’ s appointments were goi ng.

• Th e Department asked L ily about a time that one of the sib lings, a six

year

- old , brou ght a po cket knife to a visit with Jacob. Lily thought it was appropriate for the child to have th e pocket kni fe at the visit because he

was “ v ery responsible ” a nd her husband had “ s pent a lot of time talking to him about it. ”12 After the Hamilton s rested, t he tria l court granted the D epartment ’ s motion f or a directed verdict , and t he court sig ned an or der that den ied the Ham i ltons ’ motion to

w aive the consent a nd residen cy requirements. The Hami ltons appealed, but this court dismissed the appeal because th e ap peale d

- from order was neither a final judgment n or an interlocutory appe al author ized by statute

. After the appe al ’ s dis missal, the Hamiltons filed a motion to vacate the trial

court ’ s order. T he trial court then signed the Order, w hich (1) found that the Hamil t ons had not prove d that the Depa rtment la cked good cause to withh old

cons ent , (2) denied th e Hamilt on s ’ motion to waive the consent and re sid ency requirements , (3) terminat ed the ir weekly visitation wit h J acob and their relationship with him, (4) den ied a ll other requested r elief, and ( 5 ) dismi ss ed them from th e suit. The Hamiltons filed an appeal from both pro ceedings

. Discussion In the Hamiltons ’ first is sue, they argue that the tria l court erred by signing the
O rder and de nyi ng their m otion to vaca te
. 6 In the Ha milt o n s ’ second i ssue, t hey argu e that the trial c ourt erred by granting the Departme nt’s motion fo r directed verdict on the Hamilton ’s claim that the Department lacked good cause to refuse to consent to

6 Under their first issue, the Hamiltons also argue th at they had stand ing to seek adoption

. We have not found in the record any challeng e to the Hamiltons ’ standin g t o seek adoption. Although the Department moved to dismiss their adoption p etition, it did so on the basis that the Department h ad not granted consent for the ad op ti on. Regardless , w e agree that the H amiltons had standing

. See Te x. Fam. Code Ann. § 102.005

.13 their adoptio n of Jacob

. I n their thir d iss ue, the H amiltons argue th at the trial co urt erred by denyi ng the ir re quest to waive t he Department’s consen t to their adoption of Jacob

. Finally, in their fourth issue , they argue that the y e stablished as a ma tter of law that the Department was w itho ut go od cause to r efuse consent to the ir adopt ion of Jacob

. Because t he Hamiltons argue these issu es together, w e address them together.
I. Burden of Proof at Trial and Standard of R evi ew on Appeal We generally review a trial court ’ s decision to gr ant or d e ny an ado ption petition for a buse of disc retion

. In re J.G. , 412 S.W.3d 83, 87 (Tex. App.

— Fort Worth 2013, no pet.)

. H owever, when the petitioner is not the managing conservator and the managing conservator has not consented to the adoption, the t rial cou r t may not grant the ado ption unle ss it fi rst finds that the managing conserva tor ’ s consent was refused or revoked without good cause

. Tex. Fam. Code Ann. § 162.010

. As t he parties seeking waiver of the consent requirement , the Hamiltons had the bu rden to p rove the Department ’ s lack of goo d cause

. See In re M.P.J. , No. 14

- 03

- 00746

- CV, 2004 WL 1607507, at *4 (Tex. App.

— Houston [14th Dist.] July 20, 2004, pet. denied) (mem. op.)

. “ A managing conserv ator has good cause to refuse consent when it has a
g ood [

- ] f a ith reaso n to believe the best i n terest of t he child requires that it withhold

con sent. ” Id. (citing Chapman v. Home , 561 S.W.2d 26 5, 267 (Tex. Ap p.

— Fort Worth 1978, no wri t) )

. Thus, the Hamiltons had to prove that the Depa rtment did not have a
go od

- faith reason to believe that re fusing c onsent was in Jacob ’ s best i n terest. See i d.14 Although t he Department moved for dir ected verdict, i n a bench trial, a “motion for direct ed verdict” is more properly termed a “motion for judgment.” Est

. of Pandozy , N o. 05

- 19

- 00755

- CV, 2021 WL 711500, at *3 ( Tex. App.

— D allas Feb. 22,
202 1, no pet.) (mem. op.) ; s ee Matheus v. Sasser , 164 S.W.3d 453, 457 (Tex. App.

— Fort Worth 2005, no pet.). I n a nonju ry case, the trial court can grant a motion for judgm ent on either leg al

- suffi c iency or factual

- sufficien cy grounds. Qantel Bus. Sys., Inc

.

v . Custom Controls Co. , 761 S.W.2d 302, 30 4 (Tex. 19 88)

. Here, the Department moved for judgm ent on the basis that “ we haven ’ t heard any evidence that says tha t the Department does no t h ave a go o d faith belief to believe that it would be in the best interests of this child to remain where h e ’ s at. ” In other words, the Department moved for judgment on the basis of the legal insufficiency of th e e videnc e . See Parks v. Migl , No . 13

- 22

- 002 08

- CV, 2023 WL 786 0792, at *6 (Tex. App.

— Corpus Christi

– Edinburg No v . 16, 2023, pet. filed ) (mem. op.) (noting that a claim that no evidence supports a verdict is a challenge to the legal sufficien cy of the evide nce).
O n ap peal , the Hamiltons argue that t hey establis h ed a s a matter of law the
D epartment ’s lack o f g ood ca use . See Cath

. Diocese of El Paso v. Porter , 622 S.W.3d 824, 834 (Tex. 2021) (stating that when a n appellant attack s the legal s ufficienc y of an adverse find ing on an is sue on which the a ppe lla nt had t h e burden of proof, t he
app ellant must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue )

. Accordingly, in our review , w e must fi rst examine the reco rd f or evide nce that supports the fi nding , w h ile ignoring all evi dence15 to the contr ary. Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001)

. If no evidence support s the finding, then we will examine the entire record to de termine i f the contrary posit ion is estab lis hed as a matter of law. Id

. W e will sustain the is sue only if the co ntrary position is conclu sively established. Id

. Evidence conclusively establishes a fact when the evidence leaves “ no room for ordinary minds t o differ as to the conclusion to be drawn fr om it. ” Int’l Bus. Ma ch

. Corp

. v. Lufkin Indus., L LC , 573 S.W.3d 224 , 235 (Tex. 2019 ) (quoting Triton Oil & Gas Corp. v. Marine Cont ractors & Supply Inc. , 644 S.W

. 2d 443, 446 (1982) )

. Regarding the motion to vacate, we revi ew the d enial o f s uch a motion for abuse of discretion

. Corner s

tone Alternatives, Inc. v. Pat terson Oldsmobile

- GMC

- Toyo ta, Inc. , 696 S.W.2d 702, 7 04 (Tex. App.

— Fort Worth 1985, no writ )

. A trial court abuses its discretion if it acts without reference to any guiding rules o r principles

— that is, if its act is arbitrar y or unreasonable. Low v. Henr y , 221 S.W.3d 609, 614 (Te x. 2007); Cire v. Cummings , 134 S.W.3d 835, 838

– 39 (Tex. 2004). A trial court also abuses its discretion by ruling without supporting evidence

. Ford Motor C o. v. Garcia , 363 S.W.3d 573, 578 (T ex. 2012 )

. But no abuse of disc retion occurs when the trial cour t d ecides based on conflict ing evidence, so long as some substantive and probative evidence supports its decision. Unifund CCR Partners v. Villa , 299 S.W.3d 92, 97 (Tex. 2009); Butnaru v. Ford Motor C o . , 84 S.W.3d 198, 211 (Tex. 2 002) (op. on reh’g).16 II. A pplicatio n

The on ly factual basis o n which the Hami l tons argue lack of good cause is the fac t that they hav e ad opt ed Jacob ’ s siblings

. The y assert that fed eral and state law and Department po licy all prioritize pl acing a ch ild wit h the child ’ s siblings whe n possibl e . Under t he circums tances of this case, their evidence was insufficient to show a lack of good cause. The federal law on which the Hamiltons rely is part of t he Adoption Assistance and Chil d Welfare Act , 42 U.S. C. A. §§ 6 70

– 679c , which “ provid [es] for the
approp riation of money to be paid by the fe deral government to the sta tes for certain children who are pla ced outside their homes, in foster h omes or elsewhere

. ” In re T.A.W. , 234 S. W.3d 704 , 708 (Tex. App.

— Houston [14th Dist.] 2007, pet. denied) ( Frost , J ., con curring) (citing 42 U.S.C.A. § 670 )

. That Act was amended in 2008 by the Fostering Connections to Success a nd Increasing Adoptions Act

. P ub. L. No. 110

– 351 , 122 Stat 3949 (200 8 )

. A s am e nded, one section of th e Act p rovides that fo r a state t o be eli g ib le for payments , the sta te must have a plan that “ provides that

r easonable effor ts shall be made ” t o place siblings in the same placement unles s the

state “ documents that such a jo int plac e ment would be c ont rary to the safety or well

being of an y of the si blings

. ” 42 U.S.C.A. § 6 71 (a)(31). F or s iblings who are not place d together, the plan must “ provide for frequent visitation or other ongoing
int eraction between the sibli ngs ” unles s the st a te “ documents that f req uent visitation

or ot her ongoing intera ct ion would be contrary to the safety or well

- being of any of17 the s iblings

. ” 7 However, the statute does not compel states to place siblings t ogether , see id. , and “ [s] tates receive fund i ng if t h ey co mply on a systemwi de b asis

— even if not in some indi vidual c ase.” Families A Through V v. DeSantis , 658 F.Supp.3d 1063,
1071 (N.D. Fla. 2023, order).
L

ike federal law, Texas law prioritizes placing siblings toge t her. Texas Family Code Section 262. 114( d ) provides that when dec iding on a plac eme nt for a child , the Department “ shall give prefere nce t o persons in the following order: (1) a person related to the c hild by blood, marriage, or adoption; (2) a person with whom the child has a long

- stand ing and s ignificant relationship; (3) a f oster h ome ; and (4) a ge neral residential operation. ” Tex. Fam. Code Ann. § 262.1 14 (d)

. Further, the D epartment ’ s policy hand book stat es that a fam ily who has adopted a child ’ s si blings must be consider ed for placem ent of t h e child a nd g iven
p reference

. See Tex. Dep ’t of Fam. & Protective Se rvs., Child Protective Services Handbook , § 4114.14, https:// www.dfps.texas.gov /handbooks/ CPS/ Files / CPS _pg_40 00. asp#CPS_4114_14 ; s ee also Tex. Fam. Code Ann. § 264. 751 (definin g the

term s “ relative , ” “ relative caregiver, ” and “ de signated caregiver ” )

. The Hamiltons also cite the Department ’ s foster child “ B ill of Rights , ” which informs foster child ren that

7 The Hamiltons d o not r aise any compl aints about the frequency or lack of interaction between the ch ildren

. See , e.g. , Tex. Dep ’t of Fam. & Protective Servs., Child Protective Services Handbook , § 41 1 4.2 , https:// www.dfps. te xas. gov/ ha ndbooks/CPS/Files/CPS_pg_4000.asp#CPS_4114_2 ; cf. Tex. Fam. Code Ann. § 153.551 (providing that t he sibling of a child who is separated fr om the child be cause of the Departmen t ’s action may file suit request in g access to the child )

.18 they have the right to live with th eir s i blings in foster care, if possible, and if t hey are not living with their siblings, to k now wh y. See Te x. Dep ’t of Fam. & Protective Servs., N o. 2530 , Rights of Chi ldren and Youth i n Foster Care , https://ww w.dfps.texas.gov / Child_Protection/ Foster_Care / Childrens_ Rig hts.asp ; see also Tex. Fam. Code Ann. § 263.008 (b)(6) (providing that it is the state ’ s policy that a child in fost er care be informed of the child ’ s right s relat ing to placement with the child ’ s si blings and

con tact w ith the child ’ s family members )

. “ If there are no safety or other com pelling reasons why [ a f oster child] cannot live with [his or her] siblings, it is [the] caseworker ’ s job to try and fi nd a home where [the child] can live with [ his or her ] sibling s. ” Rights of Chi ldren and Yo uth i n Foster Care , https://www.dfps.texas.gov/ Child_Protection/ Foster_Care /Childrens_Rig hts.asp

. The Hamiltons argue that based on the above provisions, “ [t]he clea r le gislative intent and public policy reflected in the se documents is that keeping siblings together in termination

- adoption proceedings i s in t he ir best interest a bsent extreme circumst ances otherwise. ” The Hamil tons are correct that fed eral and state law , as well as Department guidance , reflect a po licy that the Department should make ef forts to keep sibling s together when possible. Howe ver, w hile fe deral l egislation en courages

— and Departmen t policy require s
— the Department to make reason able efforts to pla ce

s iblings to gether, no ne of the laws or policies they cite require s keeping siblings together in all circumstances. Cf. In re Row , No . 319389, 2 0 14 WL 28 81148, at
*7 (M ich. Ct. App. June 2 4, 2014) (per curiam) ( unp ublished) (noting that 42 U.S.C.A.19 § 671 (a) (31) does not require a state to place siblings together under all possible circum stances)

. Li kew ise, Texas Family Code Section 262. 114(d) requ i res giving placement prefere nce to persons related to the c hild by blood or adoption , but it does not mandate pl acement of a child with the child ’ s siblings , and it does not mandate moving a child from the only home the child has known if the c hild ’ s sibl i ngs ’ adoptive or foster parents decide at s ome point that they want the child

. Further, in making placement deci sions, the Department should consider other releva n t circumstance s in addition to sibling placement

. 8 See Tex. Dep ’t of Fam. & Prote ctive Servs

. , Child Protective Services Handbook , § § 411 3

– 14 , https: // www. dfps.texas.gov/ handbooks / CPS/Files/CPS_pg_4000.asp #CPS_4113 ( l isting information that the caseworker must consider before making a placement , including the biological parents ’ recommendations and the substitute car e giver ’ s circumstances ). Here, a lthough the Hamiltons p o int to L illy ’ s testimony that the Dep artment did not offer Jacob ’ s placement t o the Hami lton s , Lil ly adm itted that out of concer n for the siblings, she and her h usband did not want to take Jacob when he was first taken into the Department ’ s care . E ven aft e r the y adopted Jacob ’ s siblings, the

8 The Hamilt ons do not discuss in their brief t he fact that the Department consider s the Kents to be fictive kin , which would make the Kents a preferred placement o ption

. See, e.g. , Tex

. Dep ’t of Fam

. & Protective Servs, Placement Pro cess Resource Gui de 1 8 (Mar. 2023) , https://www.dfps.texas.gov/handbooks/ CPS/Resource_Guides/Placement_Process_Resource_Guide.pdf (stating that “[t]h e general order of preference for placement with relatives and other connections ” is first non

- cus todial parents, then “ [r]elatives and fic tive kin ” and “ [o]ther connections ” such as “ families who have adopted the child’s sibling s ” )

.20 Hamilton s did not ask the Depar tment to place Ja cob with them

. A lthough Li lly testified that she ha d contacted a caseworker a bout arrangin g a visit with Jacob, there is no thing in the record to show that she inf ormed t h e Department that s he and her husband wanted to and were ready to take him until he was over five months old

. Fu rther, Ross testified that the Kents , as fictive kin and the family that Mother requested for placement , were a l so a p riorit ized placeme nt for J acob. The Hamiltons argue that they understood that the Kents would be a bridg e p lacement , and from Lily ’ s testimony, the Hamiltons appeared to believe that they and the Kents could decide among themselv es who would have custody of J a cob. However, neither the H amiltons nor the Kents were managing conservators of Jacob with th e authority to decide where Jacob would live

. S ee Tex. Fam. Code Ann. § 153.371 (listing the rights o f the Department when appo inted as a child ’s managing

con servator, includin g the ri g ht to designate the child ’s primary residence ). There is nothing in th e record to indicate that the Department had agr eed to uproot Jacob and

move him to the H amiltons at any point that the Hamiltons dec ided they wanted him. Lill y testif ied that b ased on a co nversation with one of the previous caseworkers , she believed that the caseworker understood that the Hamiltons wou ld eventually be given placeme nt of J acob , but there was no evidence of what the case work er told Lilly , and Lil ly ’s tes tim ony was not evi d ence that the ca s e w orker had agreed to that plan or had the a uthority to authorize it. F urther, the dispute in this case is not over whether the Depar tment was fair to the Ha mi ltons in making its placement decision

.21 The issue is whether the Hamilt ons prov e d that the Depa rtment had no go od cause to refuse consent for their adopt ion of Jacob

. Although the testimony about the Department ’ s placement decision and the Hamiltons ’ interest in Jacob was relevant to

a consideration of whether the Ham i ltons w ould be e nthusiastic parents t o Jacob going forward , the testimony does not prove that the Department did not believe in good faith that Jacob would be better off staying in his current home. The Hamiltons introduced evide nce th at they are good parents to the sibl i ngs and that , consequently, Jacob could po tentially do well in their c are despite the adverse effect that moving him would have , but they introduced no evidence that h e is not already doing well in his current hom e . They did not produce evidence t hat the
K ents have not been good caregivers t o J acob or that Jacob has some special needs that the Kents are un able to meet

. T he Kents ’ h ome was the only home that Jacob has ever known , 9 he is doing well in their care, and the Hamilton s ’ expert acknowledge d that i f Jacob has formed secur e attachments to the Kents, he would be “absolutely d ev astat e[d] ” by being mo v ed from their care

. Ross testifie d that Jacob is

“ very bonded ” to the Kents and is doing well in thei r home

. On this record, even if

9 We do not hold that the Department always has good cause to deny adoption of a young child by prospective adoptive parents when the child has been in someone else ’s care for most of the child ’s li fe. We merely recognize that a child ’s att achment to their current p lacement and maintaining a stable p lacement are matters that the Department may consider , among others, in deciding whether to grant consent
. See , e.g. , Holley v. Adams , 544 S. W.2d 367, 371

– 72 (Tex. 1976) (considering the stability of the home in evaluati ng the child ’s best interest )

. H ere, the only basis on which the Hamiltons argue a lack of good cause is the ir having custody of Jacob ’s sibl ings.22 th e Department should have but did not offer the Hamiltons placement of Jacob, and even if they would have a ccepted placement if offered, the ir having adopted the si bli ngs is not enough t o show as a matter of law that the D e partment had no good

faith reaso n to believe that ref u sing consent was in Jacob ’ s best interest

. See In re B.L.R. , 592 S.W.3d 453, 466 (Tex. App.

— Houston [1st Dist.] 2018, no pet.) (holding that trial court did not abuse its di scretion in denyin g the app ellants ’ adoption petition because s ome evidence supp or t ed a finding that it was not unreasonable for the Department to withhold its consent) ; Chapman , 561 S.W.2d at 267 ( noting that managing conservator has good cause to not consent when it has good

- faith beli ef that child ’ s best interest r equ ires with holding co nsent). The Hamiltons r eference M. J. P. as a case in which a trial court granted a waiver of consent , and they state that “ [i]n that case , the Department had failed to con duct a home study that had been promised, and [it] had made decisions about placemen t before the home studies had even been done

. ” However, th at case in volved a married couple , and the child had lived with the couple for eighteen months and had bonded with them

. No. 04

- 16

- 00124

- CV, 2016 WL 7234041, at *1 , *3, *10 ( Te x. App.

— San An tonio De c. 14, 2016, no pet.) (mem. op.)

. The child ’ s perman ency plan was fo r the couple to adopt the child , but before th e a doption took place, the husband filed for divorce

. Id. at *1. T he Department granted consent for the h usband to adopt and denied consent to the wife

. Id

. After a trial, the trial court waived the consent
req u irement and gr anted the wife ’ s adoption petit ion , based on the child having23 bonded with the wife and other considerations

. Id. Here, Jacob has only lived with the
Kents

. Further, Lily tes tified that the Department had conducted a h ome study, and there was evidence from which the trial co urt co uld fin d that the Hamiltons did not

want to take Jacob when he came into car e. Finally, the Hamiltons argue that allowing them to adopt Jacob was in his best interest. See C hapman , 561 S.W.2d at 267 ( requiri ng finding that waiver of consent is in child ’ s best interest before waiver may be granted ) ; see also Tex. Fam . Code Ann. § 153.002 ( “ The best interest of the child shall always be the primary consi deration of the court in determining the issues of conserv atorship a nd possession of and acces s to the child. ” ). Again, however, they rely only on the fact that they adopted the siblings. They cite Texas Famil y Code Section 263.307 (b) (13), whi ch states tha t “ in determinin g whether the child ’ s parents are willing and able t o provide the child with

a safe environment , ” the trial court should co nsi der the factors listed in that section, including “ whether an adequ ate social support sys tem consisti ng of an exte nded family and friends is available to the child. ” Tex. Fam. Code A nn. § 263.307 (b) (13). They argue that “ [s]eparating siblings is contrary t o this factor because si blings . . . are

one o f the closest social support systems [that] pe ople have ” and that no t placing Jacob with his sibli ngs “ has the effect of separating the siblings from their closes t familial social sup port system. ” The Hamilt ons do not address any of the other best

- interest factors in that

sect ion and do not address other ways

— such as visit ation an d other interactions

—24 that siblings and ot her relatives can p rovide a social support s ystem to a child

. Additionally, the y presented no evidence that Jacob does not currently have a good social support system. Further, w e point out that Section 263. 307 states that “ the prompt and permanent placeme nt of the child in a safe environment is pre sumed to be in the child ’ s best interest

. ” Id. § 263.307 (a). W e agree with the Ha mil tons that , in line with the statutes and policies they have cited, the Departme nt should , as a gen e ral rule, at tempt to place s iblings together . Ho wever, under t he circums tances of this case, we can not say that the Hamiltons proved as a matter of law that the Department ’ s d eni al of consent is contrary to J acob ’ s best interest. On thi s record, the Hamiltons did not establish as a matt er of l aw a lack of good cause , and the tria l court ha d some evidence on which to deny their motion to

vacate
. Because the Hamiltons failed to meet their burden, we cannot say that the trial court erred or abused its discretion by granting the motion for j udgment, signing the Order, and denying the Hamiltons ’ motion to vacate. 10 We therefore overrule the
Ham iltons ’ issues.

10 In the Hamiltons ’ mot ion to vacate, the y ar gu ed among oth er things that becau se the Kents were licensed a s a foster f amily, they could not qualify as ei ther a “designated caregiver ” or a “relative caregiver ” under Famil y Code Section 264.751 so as to “ supersede the federal and state requirements th at the Departm ent make good faith efforts to place the child with family and to keep siblings togethe r. ” They further argue d that the trial court erred by excluding Dr. McKenzie ’s export report , which o pined on t he interac tions that he ha d observed bet ween t he Hamiltons and J acob and which the trial court had excluded on the basis that it had not been timely25 Conclusion Having overrule d the Hamilton s ’ issues, w e a ffirm the t rial court ’ s order.

/s/ Mike Wallach Mike Wallach Justice Delivere d: Jan uary 11, 2024

provided to the Department

. The Hamiltons do not make these arguments on app eal , and we therefore do n ot address the m. Even if we consider ed the argument s , however, our disposition would not change because we do not base o ur holding on whether the Hamiltons are good parents

— t he Department did not dispu te the Hamiltons ’ parenting abilities , and the trial co urt admitted D r. McKenzie ’ s testimony on that point

— and the fact that the Kents had had a foster license at some point did not necessarily prevent them from being considered fictive relatives. See, e.g. , In re D.S. , No. 02

- 15

- 003 50

- CV, 2016 WL 1267808, at *5 (Tex. App.

— Fort Worth Mar. 31, 2016, no pet.) (m em. op.) ; In re E.N.Q. , No. 04

- 17

- 00089

- CV, 2017 WL 2791286, at *2 (Tex. App.

— San Antonio June 28, 2017, pet. denied) (mem. op.); In re A.A. , No. 01

- 13

- 00542

- CV, 2013 WL 6569922, at *4 (Tex. App.

— Houston [ 1st Dist.] Dec

. 12, 2013, pet. denied) (mem. op.)

. Further , as we have said, whether the Hamiltons should have had priority for Jacob ’ s placement is not determin ative of the good

- cause issue. Thus, these grounds did not demo nstra te that the trial court abu sed its discre tion by denying their motion.