Opinion issued March 26, 2019

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-18-00729-CV

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IN THE INTEREST OF R. J., JR., A CHILD

On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Case No. CV29910

DISSENTING OPINION

Before the Texas Department of Family and Protective Services intervened 

in E.M.’s and her husband R.J.’s lives, and the lives of their children, the family’s 

circumstances were untenable. E.M. and R.J. struggled with homelessness and 

finding steady employment. R.J. had the additional barriers of debilitating mental 

illness resulting in multiple suicide attempts since childhood and a long-standing 
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history of drug use, including benzodiazepines, amphetamine, and 

methamphetamine. After E.M. and R.J. failed to discontinue the use of drugs and 

to participate in services in 2015, the Department asked them to leave their son 

“Ray” with his grandmother and to find somewhere else to live. Ray was just nine 

months old when he was removed from his parents.

E.M. and R.J. moved to a small town about five hours from where the 

Department eventually placed their son. E.M. began working as a floor manager at 

the local Denny’s, and R.J. eventually worked as a cook. They were able to stagger 

their shifts so that they did not require outside child care. They had health 

insurance.

They lived with their youngest son, Alex, and E.M.’s three children from a 

prior relationship came to live with them in 2017. They lived in a house that they 

wanted to buy someday. Under the parents’ supervision, the children were reading 

35 to 40 minutes per day. Shortly before the hearing that terminated their parental 

rights, E.M. and R.J. were able to obtain a vehicle. 

While E.M. and R.J. worked imperfectly at putting their lives together, the 

Department was successful in terminating their parental rights as to Ray’s younger 

sister, Jane. That termination was used as a predicate finding to terminate their 

rights as to Ray in this case. Ray’s case lasted 28 months. Although under current 

law, if Ray’s case had remained unresolved as long as it did, the court would have 
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lost jurisdiction to terminate parental rights, that law was not in effect when this 

case began. Because the case lasted most of Ray’s life, it is not surprising that he 

bonded with his foster placement.

Although he had been in therapy for two years by the time of the termination 

hearing and intended to continue it, R.J. reported that he had reduced or eliminated 

his psychiatric medications by the time of the termination hearing. When he was 

not taking his medications in 2016, he used cocaine and attempted to commit 

suicide shortly after Jane was born. E.M. saved his life.

R.J. continued to struggle. In April 2018, after consuming alcohol, he 

allegedly pushed E.M. into a chair, prompting a Department investigation into the 

welfare of their youngest child after police were called. R.J. was required to move 

out of the house. He moved back in shortly before Ray’s termination hearing.

In addition to a predicate violation, the party seeking to terminate another’s 

parental rights must establish by clear and convincing evidence that termination is 

in the child’s best interest. TEX. FAM. CODE § 161.001(b)(2); see id. § 153.002. The 

clear and convincing standard is the 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 proved. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980) (quotation and 

citation omitted). There is a strong presumption that the child’s best interest will be 
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served by preserving the parent-child relationship. In re J.F.C., 96 S.W.3d 256, 

294 (Tex. 2002). To prevail, the Department must rebut this presumption.

The termination of parental rights involves fundamental constitutional rights. 

Stanley v. Illinois, 405 U.S. 645, 651 (1972); Holick v. Smith, 685 S.W.2d 18, 20 

(Tex. 1985). “Termination of parental rights, the total and irrevocable dissolution 

of the parent-child relationship, constitutes the ‘death penalty’ of civil cases.” In re 

K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring). 

Accordingly, appellate courts strictly scrutinize termination proceedings and 

strictly construe involuntary termination statutes in favor of the parent. In re 

E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). 

Because of the strong presumption that maintaining the parent-child 

relationship is in the child’s best interest, “the best interest standard does not 

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

Termination should not be used to merely reallocate children to better and more 

prosperous parents.” In re W.C., 98 S.W.3d 753, 758 (Tex. App.—Fort Worth 

2003, no pet.) (citation omitted); see In re E.N.C., 384 S.W.3d at 809.

Courts may consider the following non-exclusive factors in reviewing the 

sufficiency of the evidence to support the best-interest finding: the desires of the 

child; the physical and emotional needs of the child now and in the future; the 

emotional and physical danger to the child now and in the future; the parental 
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abilities of the persons seeking custody; the programs available to assist those 

persons seeking custody in promoting the best interest of the child; the plans for 

the child by the individuals or agency seeking custody; the stability of the home or 

proposed placement; acts or omissions of the parent that may indicate the existing 

parent-child relationship is not appropriate; and any excuse for the parent’s acts or 

omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

The Holley factors are non-exclusive. See id. at 372. In evaluating Ray’s best 

interest, it would seem proper to take account of the significant strides E.M. and 

R.J. made. See In re K.C.M., 4 S.W.3d 392, 399 (Tex. App.—Houston [1st Dist.] 

1999, pet. denied) (reversing parental termination where mother “turned her life 

around” in jail because a “firm belief or conviction” that the best interest of the 

child required termination of mother’s rights “could not be fairly reached”), 

disapproved of on other ground by In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). To 

rise from being unstable in housing, transportation, and employment to obtaining 

stable full-time work with benefits and being able to rent a three-bedroom home 

and reunite with children who had to be placed with relatives is noteworthy. The 

parents have become able to provide for the physical needs of their children, 

including Ray. See Holley, 544 S.W.2d at 372. Spending time daily reading and 

playing with their children and thinking about the children’s college education is 

tending to the emotional needs of the children now and in the future. See id.
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Once a family is under the Department’s microscope and one child is 

removed for neglect or endangerment, return of other children can become a 

Herculean task. This is especially so where the family suffers from addiction, 

mental illness, housing instability, poverty, or, in this case, all four. When the 

proceedings take more than two years and parent-child visits are logistically 

difficult, it is very easy to find that a child too young to state his preferences has 

bonded to his new caretakers. E.M. and R.J. have improved dramatically in two 

years. But as the pushing incident shortly before trial demonstrates, R.J. is not 

completely recovered.1In looking at all the evidence, not just the evidence 

 

1 Although under different circumstances this Court has concluded that “[e]vidence 

that a person has engaged in abusive conduct in the past permits an inference that 

the person will continue violent behavior in the future,” Jordan v. Dossey, 325 

S.W.3d 700, 724 (Tex. App.—Houston [1st Dist.] 2010, pet. denied), using R.J.’s 

2013 conviction to permit an inference that he will be abusive toward E.M. or his 

children in the future is not well supported. First, the offense occurred before R.J. 

sought treatment for his PTSD and two years before Ray was born. Second, there 

is no information that the offense was directed toward E.M. or any other details 

about the offense. Third, in Jordan, the father was a sex offender, had pushed, 

kicked, and punched the mother in the face while she was pregnant with the child 

on at least 10 occasions, and, after the child was born, the mother saw blood and 

bruises on the child after the child was in the father’s care. Id. at 707. The facts in 

Jordan were sufficient to show a course of conduct that would permit an inference

about future conduct. Without knowing more, one assault conviction before Ray 

was born and one incident with the mother four years later does not give a factual 

trajectory that would support an inference of future violent conduct here. Assault, 

even felony assault, may be committed by offensive touching or reckless conduct. 

TEX. PENAL CODE § 22.01(a)–(b). The inference here is also less well founded 

because R.J. has engaged in prolonged therapy and medication to address his 

mental health. The inference is not the kind that “will produce in the mind of the 

trier of fact a firm belief or conviction as to the truth of the allegations.” See In re 

J.O.A. 283 S.W.3d 336, 344 (Tex. 2009) (citing TEX. FAM. CODE § 101.007).
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supporting the termination decision, In re J.F.C., 96 S.W.3d at 264, E.M. and R.J. 

are not perfect parents; given their improvements, however, the evidence was not 

factually sufficient to conclude that termination would be in Ray’s best interest.

Conclusion

In light of the dramatic improvements that E.M. and R.J. made in terms of 

their ability to care for the physical and emotional needs of their children, 

including Ray, there was factually insufficient evidence that termination was in 

Ray’s best interest. I respectfully dissent.

Sarah Beth Landau

Justice

Panel consists of Justices Keyes, Higley, and Landau.

Justice Landau, dissenting from the judgment.