NUMBER 13-12-00187-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF M.W.H., C.L.H., S.D.L.H., AND T.M.H., 

CHILDREN

On appeal from the County Court at Law 

of Aransas County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Perkes

Memorandum Opinion by Justice Benavides

This appeal involves the involuntary termination of parental rights of appellants

C.W.H. (“Father”) and K.L.B. (“Mother”) over M.W.H., C.L.H., S.D.L.H., and T.M.H. 

(collectively “children,” unless otherwise noted).1 By four issues, Father, Mother, and 

cross-appellants, R.B. and J.B. (“Grandmother” and “Grandfather,” respectively) assert 

 

1 We will use aliases for the parties involved in order to protect the minors’ identities. See TEX. R.

APP. P. 9.8(b)(2).
2

on appeal that: (1) the trial did not commence within the statutory procedural deadlines 

articulated in the family code; (2) the evidence was factually insufficient to support the 

trial court’s clear and convincing finding that termination of Mother’s and Father’s 

parental rights was in the children’s best interest; (3) the evidence was factually 

insufficient to support the trial court’s denial of Grandparents’ intervention; and (4) the 

trial court’s findings of fact and conclusions of law lack specificity to support a judgment 

terminating parental rights. We reverse and remand. 

I. BACKGROUND

On the afternoon of July 11, 2010, Baby A. was found non-responsive, not 

breathing, and slumped over in the front passenger’s seat of Father’s sports utility 

vehicle parked outside the family’s trailer home in Aransas Pass. Baby A. was taken to 

Driscoll Children’s Hospital in Corpus Christi, where he was pronounced dead from 

hyperthermia. Appellee, the Department of Family and Protective Services (“the 

Department”), assumed care of Father and Mother’s other children and obtained a court 

order which appointed the Department temporary managing conservator. The children 

were placed in a children’s advocacy center while the Department implemented a 

“Family Service Plan” with the parents. 

A. The Trial

A bench trial commenced to terminate Father and Mother’s parental rights over 

Children, wherein the following evidence and testimony was received:

1. Sheriff’s Investigator Stan Powell
3

Investigator Powell was one of the first responders to the scene where Baby A. 

was found. During his initial investigation, Investigator Powell took several photographs 

which were admitted into evidence and showed the conditions of the trailer home where 

the children lived at the time and inside the vehicle where Baby A. was located. 

Investigator Powell testified that he found the surrounding area with “junk” piled up 

around the trailer. Investigator Powell further testified that through the course of his 

investigation, he determined that at the time of Baby A.’s death, Father was asleep 

inside the trailer home and Mother was cooking lunch at a next-door neighbor’s home. 

2. Department Investigator Keri Cass

Cass was the initial investigator assigned to this particular case and first 

responded on behalf of the Department at Driscoll Children’s Hospital. Once there, 

Cass interviewed Mother and the other children. Cass later met with Father and 

Grandmother at their respective residences. At the hospital, M.W.H., C.L.H., and 

S.D.L.H. were examined by medical personnel. Cass testified that the children were 

dirty and had poor hygiene. Cass noted that C.L.H. had bruising on her buttocks, and 

S.D.L.H., who was six months old at the time, appeared to have developmental 

difficulties due to nutritional neglect. Approximately four hours after Baby A.’s death, 

Cass administered an oral-swab drug test on Mother, which tested positive for 

amphetamines and methamphetamines. A drug test was also administered on Father, 

which yielded the same results. 

Cass testified that the Department discussed possible placement with 

Grandmother and Grandfather, but the Department expressed concern about the 
4

grandparents’ prior lack of supervision over the children, safety conditions around the 

grandparents’ residence, which was in the same trailer park as Mother and Father’s 

residence, and Grandfather’s purported alcohol use. 

3. Department Caseworker Virginia Piaz 

Piaz testified that Mother and Father entered into a Family Service Plan with the 

Department. Piaz described the plan as a set of tasks that the Department asks 

parents to complete to further the mutual goal of reunification with the children. In 

August 2010, Father, Mother, and the Department entered into the plan. Several initial 

concerns were outlined in the plan, including: (1) nutritional failures and developmental 

issues as to S.D.L.H.; (2) drug use by both parents; (3) the death of Baby A. due to lack 

of supervision; (4) bruising on C.L.H.’s body; and (5) unsanitary and hazardous living 

conditions. Several goals were also outlined in the plan, including lifestyle changes to 

reduce the risk of injury and neglect upon the children. Some of these goals included: 

(1) a willingness and ability to protect the children from harm; (2) a demonstrative ability 

to stay drug free; (3) an ability to provide basic necessities for the children such as food, 

clothing, shelter, care, and supervision; (4) the maintenance of a safe and hazard-free 

home; and (5) a demonstrative ability to change the pattern of behavior that resulted in 

the abuse and neglect. Piaz testified that during the implementation of the Family 

Service Plan, the Department was “constantly monitoring” Mother and Father’s 

progress. During the implementation, Mother and Father complied with the 

Department’s plan and: (1) participated in all drug testing; (2) paid monthly child 
5

support; (3) acquired a two-bedroom apartment; (4) attended mental health evaluations; 

and (5) Father obtained steady employment. 

Piaz stated that since the initial removal of the children, the Department’s goal 

was always to reunify the family. In August 2011, Mother and Father entered respective 

pleas of guilty to the second-degree felony offense of injury to a child arising out of Baby 

A.’s death. See TEX. PENAL CODE ANN. § 22.04 (West 2011). The trial court sentenced 

Mother and Father to a term of two years’ confinement in the Texas Department of 

Criminal Justice’s Institutional Division and imposed a $500.00 fine.2 While in prison, 

Mother gave birth to T.M.H., who, according to testimony, was a healthy baby. The 

Department assumed care of T.M.H. shortly after his birth. 

Piaz testified that the criminal convictions of Mother and Father, the statutory 

time constraints of the Department’s action plan, see TEX. FAM. CODE ANN. § 263.401 

(West 2008), and other concerns about Mother and Father’s abilities to parent without 

supervision in the future, presented a dilemma for the Department. Therefore, the 

Department decided to change its position from reunification to termination. Piaz 

testified to the trial court that the Department’s position was to terminate parental rights 

of Mother and Father on grounds D, E, and L of section 161.001 of the family code and 

that termination was in the children’s best interests. See TEX. FAM. CODE ANN. § 

161.001(1)(D)–(E), (L); id. § 161.001(2) (West Supp. 2011). Piaz also testified that if 

termination was ordered, the Department felt that placing the children with the 

 

2

Prior to these convictions, the record shows that only Father had a prior criminal record which 

stemmed from a September 15, 2006 charge for possession of marijuana in an amount less than or equal 

to two ounces in a drug free zone. He was found guilty and sentenced to one-year probation. 
6

grandparents was also not in the children’s best interest based on results from a home 

study.

4. Case Analyst Libby Bryars 

Bryars is a case analyst with the Department and conducted an independent 

assessment on Grandmother and Grandfather’s home. Bryars testified that during her 

study, she visited the grandparents’ home and noted the following concerns: (1) the 

yard was without fencing; (2) Grandmother and Grandfather were not concerned about 

the unsanitary conditions of the home where the children lived with Mother and Father; 

(3) the physical appearance of the home needed repair; (4) Grandmother and 

Grandfather did not own adequate transportation for all of the children; and (5) although

Grandmother and Grandfather appeared to have adequate physical health to care for 

their grandchildren, it would be difficult for them to care for their grandchildren.

Bryars included in her report that Grandfather stated to her that having the four 

grandchildren live with them would pose no problem and that they would “do whatever it 

takes to get [their] grandbabies in [their home]” because the grandchildren were very 

important to them. Bryars also noted in her home assessment that the grandparents 

attended church regularly, and the children would attend with them. The grandparents 

also indicated to Bryars that they would “ensure that all of [the children’s] needs [were] 

taken care of.” Bryars testified that her report was given to the Department, where a 

Department supervisor recommended that the children be placed elsewhere. 

5. H.B. and R.B.
7

Mother’s sister, H.B., and cousin, R.B., also testified. H.B. testified that she had 

told police that she witnessed the children run up and down the road in the trailer park 

unattended on more than one occasion. H.B. stated that she believed Baby A.’s death 

was an accident and that the children should be returned to Mother and Father because 

Mother was “not the same person [that] she was” before the accidental death. H.B. 

indicated that since Baby A.’s death, Mother and Father’s attitudes and responsibilities 

had changed for the better. H.B. testified that Mother and Father complied with the 

Family Service Plan and learned from it. H.B. admitted that she told police shortly after 

Baby A.’s death that she did not think it was in the best interests of the children to live 

with Mother and Father because she was angry with them for Baby A.’s death. 

However, H.B.’s opinion changed at trial when she testified that to return the children to 

Mother and Father would be in the children’s best interest. R.B. offered cumulative 

testimony about the state of Mother and Father’s trailer prior to the Department’s 

intervention. R.B. opined that it would not be in the children’s best interest to return 

them to Mother and Father or to their grandparents but admitted that she allowed her 

son to stay with Mother and Father when she experienced problems with her son and 

had not communicated with Mother and Father since the Department’s intervention. 

6. Grandmother, Grandfather, and Others

Grandmother testified that nothing was unusual in her health and that she 

disputed the social study conducted by Bryars which indicated that she and her 

husband would be physically unable to take care of the children. Grandmother testified 

that she was ready, willing, and able to adopt the children, if the trial court terminated 
8

Mother’s and Father’s parental rights. Grandfather testified that he did not notice any 

troubles associated with Mother’s and Father’s care for the children prior to Baby A.’s 

death because he works a lot of hours; however, he testified that had he noticed 

anything, he would have said something to them. Grandfather also testified that it was 

in the children’s best interest to be raised by him and Grandmother if the trial court 

terminated Mother’s and Father’s parental rights. Finally, Grandfather testified that he 

was financially and emotionally prepared to take care of the children if the opportunity 

was given. 

Other witnesses testified on behalf of Grandmother and Grandfather, including 

Pastor Charles Stotts of Salvation Station Bible Church. Pastor Stotts testified that he 

visited the grandparents’ home several times to help them rebuild their trailer home after 

a fire destroyed the first one. Pastor Stotts told the trial court that he believed it was in 

the children’s best interests to be with their family members because he found them to 

be a loving and caring family. Finally, Pastor Stotts testified that he had no reservation 

about the children being placed in Grandmother and Grandfather’s care and that he 

would allow his own grandchildren to stay with them. Roy Snead also testified on behalf 

of Grandmother and Grandfather. Snead described Grandfather as trustworthy, 

reliable, and a friend for the last twenty-nine years. Snead stated that he had no 

reservations about Grandmother and Grandfather’s abilities to raise their four 

grandchildren. 

7. CASA Volunteers
9

Marcella Simmons was one of the original court-appointed special advocate 

(CASA) volunteers assigned to the case. Simmons worked the case for approximately 

fifteen months and followed the Department’s plan for reunification. Simmons testified 

that during that time she monitored the children’s visits with Mother and Father, visited 

with the children, visited Mother and Father at their home, and visited the grandparents’ 

home. Simmons stated that she was “definitely not” in favor of termination because she 

observed noticeable changes in Mother and Father during their visits with the children 

and felt that they were doing very well together. Simmons described Mother and 

Father’s new apartment as a clean, two-bedroom home. 

Simmons also described Grandmother and Grandfather’s new trailer home as 

“clean” and “better than most trailers” she had seen in other cases. Simmons testified 

that she noticed a “big turn-around,” describing how much Mother and Father had

changed during the administration of the Family Service Plan. Simmons found that a 

noticeable bond existed between the children and their parents as well as with their 

grandparents. Simmons testified, however, that she removed herself from the present 

case because she had a difference of opinion with another CASA volunteer, Marcie 

Rowe. According to Simmons, Rowe “wanted termination,” while Simmons did not. 

Simmons testified that she and Rowe shared the same goal of reunification up until the 

criminal sentencing of Mother and Father, when Rowe’s viewpoint on the case changed 

but Simmons’s did not.

CASA volunteer Rowe offered her report to the trial court. In her report, Rowe 

detailed that during her visitations with the children, their parents, and with their 
10

grandparents. Rowe stated that Mother, Father, Grandmother, and Grandfather 

showed “a lot of love” for the children. Rowe noted that she was concerned with the 

healthy parenting abilities of Mother and Father during the visits. Rowe noted 

immediate changes in M.W.H. and C.L.H. during their foster care and expressed 

concern with Mother and Father’s lack of structure, rules, and enforcement with their 

children. Rowe also testified that S.D.L.H. and newborn T.M.H. did not know their 

biological parents and only knew a home “where there is structure, where there [are] 

rules, [and] where there’s hygiene.” Rowe did note improvement on the part of Mother 

and Father, but also mentioned that the visitations were conducted in a “very structured 

environment,” where Mother, Father, Grandmother, and Grandfather know that they are 

being monitored. Rowe testified that Mother and Father took what the Department said 

“very seriously,” and both were “capable of learning,” but had a “long way to go.” Prior 

to Mother’s and Father’s respective incarcerations, Rowe stated that she began to see 

“some relational, good, healthy things going on there.” However, Rowe expressed

concerns over “generational issues” with Mother and Father, which Rowe contributed to 

Baby A.’s death. Rowe stated that those same concerns existed at the time of trial. 

Further, Rowe testified that she “had no clue” what was going happen, or could happen, 

if the children were returned to Mother and Father’s care.

Specifically as to Grandmother and Grandfather, Rowe noted two separate 

incidents. The first dealt with an offhand remark made by Grandmother at a court 

proceeding which Rowe found “very disturbing” because it appeared to Rowe as if 
11

Grandmother treated these proceedings as normal.3 Rowe recalled a second incident

when she and fellow CASA volunteer Simmons visited Grandmother and Grandfather’s 

home and Grandfather used a leather belt to hit one of the dogs to keep the dog away 

from the CASA workers.4 Rowe testified that she found this behavior toward the dogs 

concerning. 

Based on her observations and report, Rowe stated that the obvious love that 

Mother, Father, Grandmother, and Grandfather felt for the children was not the issue, 

instead it was the other issues that controlled. Accordingly, Rowe told the trial court that

she could not recommend that it would be in the children’s best interest to return them 

to their family. 

B. Trial Court’s Order, Findings of Fact, and Conclusions of Law

At the conclusion of the case, the trial court ordered Father and Mother’s parental 

rights to M.W.H., C.L.H., S.D.L.H., and T.M.H. terminated. The trial court found by clear 

and convincing evidence that Mother and Father: (1) knowingly placed or knowingly 

allowed the children to remain in conditions or surroundings which endangered the 

physical or emotional well-being of the children, see TEX. FAM. CODE ANN. § 

161.001(1)(D); (2) engaged in conduct or knowingly placed the children with a person 

who engaged in conduct which endangered the physical or emotional well-being of the 

child, see id. § 161.001(1)(E); (3) have been convicted or have been placed on 

 

3

The statement involved a conversation between Rowe and Grandmother at the courthouse in 

which Rowe apologized to Grandmother for being in court proceedings despite it being a beautiful day 

outside. Grandmother responded to Rowe, in a laughing manner, that they were there “all the time with 

family and friends.” 

4

According to Rowe, CASA volunteer Simmons was “very afraid” of dogs during the visit.
12

community supervision, including deferred adjudication community supervision, for 

being criminally responsible for the death or serious injury of a child under section 22.04 

of the Texas Penal Code, see id. § 161.001(1)(L)(ix); and (4) that termination of the 

parental-child relationship was in the best interest of the children. See id. § 161.001(2).

The trial court also denied the grandparents’ intervention as to all of the children 

and ordered that the Department be appointed permanent managing conservator of the 

children. This accelerated appeal ensued. See id. § 263.405 (West Supp. 2011).

II. COMMENCEMENT OF TRIAL

By their first issue, Mother, Father, Grandmother, and Grandfather assert that the 

parental termination trial did not timely commence and should have been dismissed.5

A. Applicable Law 

Section 263.401 mandates dismissal by a trial court of a parental termination suit 

when a trial on the merits has not commenced by the first Monday following one year 

after the date the court rendered a temporary order appointing the Department as a 

temporary managing conservator. Id. § 263.401(a). An extension may be granted for a 

period not to exceed 180 days in which to commence a trial on the merits. Id. § 

263.401(a)–(b). However, a party “who fails to make a timely motion to dismiss the suit 

under this subchapter waives the right to object to the court's failure to dismiss the suit.” 

Id. § 263.402(b). A motion to dismiss under this subsection is timely if the motion is 

made before the trial on the merits commences. Id. 

 

5 We consolidate Mother, Father, Grandmother, and Grandfather’s first, second, and third issues 

into one issue. See TEX. R. APP. P. 47.1
13

The Texas Supreme Court has held that “nothing in the language of section 

263.401 indicates that these deadlines are jurisdictional.” In re Dep’t of Fam. & 

Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009). The rationale behind this 

interpretation is section 263.402’s waiver provision. According to the high court, if the 

Texas Legislature intended for the dismissal provision to be jurisdictional, it would not 

have expressly permitted it to be waived. Id. 

B. Discussion

As a threshold matter, the Department argues that Mother, Father, Grandmother, 

and Grandfather’s first issue was waived because error was not properly preserved. 

See TEX. R. APP. P. 33.1(a).

6

 To counter, Mother, Father, Grandmother, and 

Grandfather collectively argue that waiver is not applicable because a trial did not timely 

“commence” as required under section 263.401, and thus, the proceeding was a 

“sham.” 

The record shows that the trial court ordered the Department be appointed 

temporary managing conservator of the children on July 13, 2010. Within one year, the 

trial court extended the deadline to commence trial until December 15, 2011. See TEX.

FAM. CODE ANN. § 263.401(b). On November 30, 2011, the case was called on the 

docket with all parties, except the trial judge, physically present. The trial judge 

presided telephonically. All sides announced “ready,” one witness was sworn in, and 

 

6

The rule requires that as a prerequisite to presenting a complaint for appellate review, the 

record must show that: (1) the complaint was made to the trial court by a timely request, objection, or 

motion that: stated the grounds for the ruling that the complaining party sought from the trial court with 

sufficient specificity to make the trial court aware, and that it complied with the rules of evidence and 

procedure; and (2) that the trial court either explicitly or implied ruled on the complaint or refused to rule. 

See TEX. R. APP. P. 33.1.
14

then, the trial court recessed and reset the trial for a later date. The visiting trial judge 

presided telephonically.7 Mother, Father, Grandmother, and Grandfather argue that 

because the trial judge appeared for trial by telephone, the proceeding was void; and

therefore, the formal commencement of the trial did not take place until after the 

December 15, 2011 deadline and waiver is negated. We disagree. 

Assuming without deciding that the telephonic hearing on November 30, 2011 

was not proper “commencement” under section 263.401, and thereby a “sham” as the 

appellants contend, error was not properly preserved through a motion or objection with 

a ruling at the telephonic proceeding on November 30, 2011. Error was also not 

properly preserved through a motion to dismiss on February 10, 2012, when the inperson trial commenced. Accordingly, we conclude that Mother, Father, Grandmother, 

and Grandfather failed to properly preserve error on this issue, and it is waived. See 

TEX. FAM. CODE ANN. § 263.402(b); TEX. R. APP. P. 33.1(a). 

Alternatively, Mother and Father argue that failure to file an objection or motion 

was the result of ineffective assistance of counsel and should warrant reversal. Again, 

we disagree. Texas provides for a statutory right to counsel for indigent persons in 

parental-rights termination cases. See In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) 

(referencing TEX. FAM. CODE ANN. § 107.013(a)(1) (West Supp. 2011)). This statutory 

right to counsel in parental termination cases “embodies the right to effective counsel.” 

See In re M.S., 115 S.W.3d at 544. The Texas Supreme Court notes that when 

 

7

This case originates out of Judge William Adams’s Aransas County Court-at-Law. On 

November 22, 2011, Judge Adams was suspended by the Supreme Court of Texas, pending final 

disposition of allegations made against him. Accordingly, visiting trial judge Stephen Williams was 

appointed to preside over this case. 
15

considering a claim for ineffective assistance of counsel on a parental termination case, 

a reviewing court should use Strickland guidelines. Id.; see Strickland v. Washington, 

466 U.S. 668, 687–96 (1984). Under Strickland, the United States Supreme Court 

stated the burden of proof for an ineffective assistance of counsel claim:

First, the defendant must show that counsel's performance was deficient. 

This requires showing that counsel made errors so serious that counsel 

was not functioning as the “counsel” guaranteed the defendant by the 

Sixth Amendment. Second, the defendant must show that the deficient 

performance prejudiced the defense. This requires showing that counsel's 

errors were so serious as to deprive the defendant of a fair trial, a trial 

whose result is reliable.

Strickland, 466 U.S. at 687. In our review for ineffective assistance of counsel, we must 

take into account all the circumstances surrounding the case and must primarily focus 

on whether counsel performed in a “reasonably effective” manner. In re M.S., 115 

S.W.3d at 545. Further, we must give “great deference” to counsel’s performance,

“indulging “a strong presumption that counsel's conduct falls within the wide range of 

reasonable professional assistance,” including the possibility that counsel's actions are 

strategic. Id. Only when conduct is so outrageous that no competent attorney would 

have engaged in it will it constitute ineffective assistance. See id. 

After review of the record, in addition to Mother’s and Father’s briefs, we cannot 

conclude that Mother’s and Father’s respective trial counsel’s failure to file a motion to 

dismiss or object at the November 30, 2011 proceedings was not the result of sound 

trial strategy, nor can we conclude that failure to file an objection or motion to dismiss 

was “so outrageous that no competent attorney would have engaged in it.” See id. 
16

Accordingly, Mother, Father, Grandmother, and Grandfather’s consolidated first 

issue is overruled. 

III. TERMINATION OF MOTHER’S AND FATHER’S PARENTAL RIGHTS

In their second issue, Mother, Father, Grandmother, and Grandfather contend 

that the evidence is factually insufficient to support a clear and convincing finding by the 

trial court that termination of Mother and Father’s parental rights was in the children’s 

best interests.8 

A. Applicable Law and Standard of Review

A court may order the termination of a parent-child relationship if it is shown by 

clear and convincing evidence that a parent has met at least one of the statutory factors 

listed in the family code, coupled with an additional finding by clear and convincing 

evidence that termination is in the child’s best interest. See TEX. FAM. CODE ANN. § 

161.001; In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002) (noting the two-prong test in 

deciding parental termination and that one act or omission of conduct satisfies the first

prong); In re E.M.N., 221 S.W.3d 815, 820–21 (Tex. App.—Fort Worth 2007, no pet.). 

We review challenges to the factual sufficiency of the evidence in a termination 

proceeding by giving “due deference to a jury’s factfindings . . .” and we do not 

“supplant the jury’s judgment” with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 

2006) (per curiam). In our review, we should “inquire ‘whether the evidence is such that 

a factfinder could reasonably form a firm belief or conviction about the truth of the [ ] 

 

8

The Department argues that Grandmother and Grandfather do not have standing to assert this 

issue on appeal because they are intervenors in the action. We agree. See Torrington Co. v. Stutzman, 

46 S.W.3d 829, 843 (recognizing that “Texas courts have long held that an appealing party may not 

complain of errors that do not injuriously affect it or that merely affect the rights of others”). Accordingly, 

we overrule Grandmother and Grandfather’s second issue. 
17

allegations’” from the entire record. Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 

2002)). This heightened standard of review is mandated not only by the Family code, 

see TEX. FAM. CODE ANN. § 161.001, but also the Due Process Clause of the United 

States Constitution. In re E.N.C., No. 11-0713, 2012 WL 4840710, at *4 (Tex. Oct. 12, 

2012) (citing Santosky v. Kramer, 455 U.S. 745, 753–54 (1982)). We strictly construe 

involuntary termination statutes in favor of the parent. In re E.N.C., 2012 WL 4840710, 

at *4.

B. Discussion

Mother’s and Father’s briefs appear to argue error solely with regard to the trial 

court’s finding by clear and convincing evidence that termination of Mother’s and 

Father’s parental rights over M.W.H., C.L.H., S.D.L.H., and T.M.H were in the children’s 

best interests. See TEX. FAM. CODE ANN. § 161.001(2). Therefore, we will address only 

that prong of section 161.001 in this analysis.

The Texas Supreme Court has provided an often-cited, non-exhaustive list of 

factors that courts may consider in ascertaining the best interests of a child. See Holley 

v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Among them are: 

(1) the desires of the child;

(2) emotional and physical needs of the child now and in the future;

(3) emotional and physical danger to the child now and in the future;

(4) parental abilities of individuals seeking custody;

(5) programs available to assist individuals to promote the best interest of the 

child;

(6) plans for the child by these individuals or by the agency seeking custody;
18

(7) stability of the home or proposed placement;

(8) acts or omissions of the parent which may indicate that the existing parentchild relationship is not a proper one; and

(9) any excuse for the acts or omissions of the parent.

Id.

Aside from these listed factors, we must take into account other considerations 

under an elevated standard of review because a “parental rights termination proceeding 

encumbers a value ‘far more precious than any property right’ and is consequently 

governed by special rules.” In re E.R., No.11-0282, 2012 WL 2617604, at *1, (Tex. July 

6, 2012) (quoting Santosky v. Kramer, 455 U.S. at 758). In these cases, we are “faced 

not with the ordinary dispute about how to allocate money in a contract or tort action,” 

but instead, we must decide how to reconcile “a parent's desire to raise [the] child with 

the State's responsibility to promote the child's best interest.” In re E.R., 2012 WL 

2617604, at *1. 

Nothing in the record expressly demonstrates any of the children’s desires in this 

case, almost certainly due to their young ages. The children range in ages from 16-

months to six years. The record does indicate, however, that the children were happy 

when they spent time with Mother and Father and family. With regard to the emotional 

needs of the children, varying degrees of evidence were presented on this point. 

Certainly the emotional and physical needs of the children now and in the future are 

tremendous as they continue to grow and mature. CASA volunteer Simmons testified 

that she noticed an emotional bond between the children and their parents and 

grandparents during the visitations. Similar feelings of love and emotional bonding were 
19

noticed as well by CASA volunteer Rowe. Looking to the future, the record shows that 

Mother and Father have improved their living and financial conditions greatly and are 

willing to continue to do so in order to support the physical and emotional needs of the 

children. We recognize that a difference of opinion exists on the parental abilities of 

Mother and Father in this case. The CASA volunteers who observed and studied the 

environment, lifestyle, and progress of Mother and Father have conflicting viewpoints 

about whether Mother and Father possess sufficient ability to continue raising their 

children or whether they will be able to provide a stable home environment for the 

children. It is also worth noting also that Mother and Father have maintained sobriety 

during the course of this case. 

Nevertheless, there is no doubt—due to the death of Baby A. and the previous 

living conditions which Mother and Father fostered—that concerns over the physical 

and emotional dangers now and in the future are worth examination. CASA volunteer 

Rowe testified that her concern is not so much with the present, but what will happen to 

the children in the future, once the watchful eyes of the Department are lifted. The 

record does not indicate, however, that moving forward with reunification would create a 

repeat of the prior living environment or that poor physical conditions of the children will 

reoccur due to present circumstances. 

To the contrary, testimony shows that reunification remained a consistent goal of 

the Department until Mother and Father’s respective plea bargains and statutory time 

constraints changed the Department’s outlook. Rowe’s testimony appears to be quite 

speculative and insufficient to overcome our elevated standard of review. While we do 
20

not deny that the Department’s concerns are genuine, we cannot gloss over the 

Department’s undisputed stated goal of reunification, as stipulated in the Family Service 

Plan. Furthermore, Mother’s and Father’s substantial compliance with the Family 

Service Plan shows a deep commitment to the goal of reunification, as opposed to 

parents who are non-compliant with their family service plans and termination is 

warranted. See In re M.G.D., 108 S.W.3d 508, 515 (Tex. App.—Houston [14th Dist.]

2003, pet denied) (noting that compliance with the Department’s family service plan is 

one factor to consider in a best interest analysis). 

Past omissions, including Mother’s and Father’s convictions stemming from Baby 

A.’s death, also deserve serious pause when factoring the best interests of these 

children.9 The record shows that the Department sought reunification even after Baby 

A.’s death. Instead, many of the Department’s concerns moving forward are 

speculative in nature of an unknown future, including unspecified and undefined 

“generational issues.” The record shows that at the time of the Department’s 

involvement, Mother and Father’s respective ages were 21 and 23, while Grandmother 

and Grandfather’s respective ages were 43 and 47. The Department’s concerns were 

further exacerbated by the pressures of a running statutory timeline to bring this 

termination proceeding before the trial court. For Mother and Father, the tragic loss of 

 

9

The Department’s records admitted into evidence show that Mother and Father missed 

numerous required counseling sessions. The record, however, is unclear whether this also means they 

missed drug tests scheduled for those times. The Department’s records further show that Mother and 

Father, during counseling, both denied prior methamphetamine use, despite both having tested positive 

for methamphetamines just after Baby A’s death. Lastly, the records reference two prior CPS 

investigations of Mother and Father, one in each of 2006 and 2008. The Department’s records admitted 

into evidence, however, failed to include any report or other documentation concerning those CPS 

investigations.
21

their child and subsequent conviction related to that death should not foreclose upon the 

shared and stated goal of reunification—especially after a demonstrated commitment 

and willingness to reform and move forward to provide emotional and physical support 

now and in the future for their children.10 Baby A.’s tragic and untimely death will most 

certainly remain in Mother and Father’s minds for the rest of their lives. If shared and 

undisputed goals of reunification are to be given any weight and effect when factoring a 

child’s best interest, one factor cannot be dispositive over the others, simply because 

the statutory time clock is ticking, or of the emotionally-charged nature of a particular 

case. See In re E.N.C., 2012 WL 4840710, at *4 (holding that “the Department is 

required to support its allegations against a parent by clear and convincing evidence; 

conjecture is not enough”).

For the foregoing reasons, even with giving due deference to the trial court’s 

findings, we cannot conclude that the evidence is factually sufficient to support a 

reasonable trier of fact’s firm belief or conviction that termination of Mother and Father’s 

parental rights were in M.W.H., C.L.H., S.D.L.H., and T.M.H.’s best interests. See In re 

C.H., 89 S.W.3d at 28–29. 

We sustain Mother and Father’s second issue.11 

 

10 According to Father’s brief, Father has been released from prison. 

11 Because we have sustained Mother’s and Father’s second issue, we need not address the 

remaining issues on appeal. See TEX. R. APP. P. 47.1.
22

IV. CONCLUSION

Because the evidence was factually insufficient to show that it was in the 

children’s best interest to terminate Mother’s and Father’s parental rights, we reverse 

the trial court’s judgment and remand the case for a new trial. 

__________________________

GINA BENAVIDES

Justice

Delivered and filed the

29th day of November, 2012.