### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00320- CV

Wendell Gibbs an d Richard Pr octor , Appellan ts

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 146 TH JUDICI AL DISTRICT NO. 240 ,483 -B , H ONO RAB LE RICKMO RRIS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellants Wendell G ibbs a nd Richard Proctor appea l f rom the trial court’s decr ee terminating their pare ntal rig hts to their children. This case involves three children: two boy s, J .C., who at the t i m e o f t ri al wa s six y ear s old, and X.U., who was four, and one g irl, T.R., who was fiftee n months old. Proctor is J .C.’s biologica l fathe r. Gibbs is the b i o l o gical fathe r of X.U. and T.R. and raised J .C. as his son from the time J .C. wa s ab out a y ear old. The children’ s mother is Camelia Gibbs, whose pa renta l rig hts were also terminated. The De partment took custody of the 1 children in Dec ember 2009, shortly afte r T.R. was born with coca ine and benzodiazepine (desc ribed as “V alium like drug s”) in her sy stem, and Camelia teste d positive for coc aine. The jury found that Proctor’s rig hts should be t er m i n at ed for at least one of the following g rounds: knowing ly placing or allowing J .C. to stay in conditions that en d an gered his

Camelia did not appea l from the ter mination decre e. 1well-be ing, eng ag ing in conduct or knowing ly placing J .C. w ith someone who eng ag ed in c onduct

that endang ere d J .C.’s well-be ing, constructively abandoning J .C. for at least six months, or failing
to c omply with a court order that established conduct nece ssary to r eg ain custody of J .C. The jury fo u n d that Gibbs’s pare ntal rig hts should be terminated for at least one of the following g round s : knowing ly placing or allowing the children to rema in in conditions that endang ere d their well-be ing, eng ag ing in conduct or placing the children with someone who eng ag ed in conduct that endang ere d the children, or using a controlled substance and failing to complete a substance- abuse prog ram or completing a prog ram but c ontinuing to abuse the c ontrolled substance . The jury also deter

mined that termination of Gibbs’s a nd Proctor’s r ights wa s in the children’ s best interest. On app ea l , Gibbs challeng es only the jury ’s best-intere st deter mination. Proctor challeng es the jury ’s finding s of a statuto ry gro u n d for termination and the best-intere st finding

. We reve rse and rema

nd the cause to the trial court as to Gibbs. We aff irm the decr ee as to Proctor.

F actual Summ ary Proctor was in fede ral prison in Geor g ia at the time of trial, and in a November 2010 letter to his Depa rt m en t ca seworke r, he said he had been imprisoned for the past six and one-half y ear s. Proctor also had three state convictions in 2003 and 2004, all for coca ine possession. Camelia thought Proctor went t o p ri son befor e J .C. was born in ear ly 2005 and said she did not “kee p up with” h i m af

t er he went to prison, althoug h she also said she spoke to him “eve ry now and then.” She testified t hat although P roctor never sent money , Proctor’s mother stay ed in touch, attempted to help Camelia financially , and had develope d a re lationship with J .C. Camelia testified that she

never told Proctor that she had a drug problem or that the children might be remove d from her car e.
2Camelia and Gibbs met and started dating when J .C. was about three months old and

marrie d in 2005, six or seven months later. Gibbs raised J .C. as if J .C. wer e his own child, and J .C. 2 calls Gibbs “Da ddy .” Despite that cl o s e rela tionship, J .C. understands that Proctor, not Gibbs, is his biologica l fathe r. At the t ime Gibbs and C amelia met and married, Gibbs was in the m ilitary , wher e he had serve d since 2001. Gibbs testified that during his service , he twice deploy ed to I raq. Camelia testified that Gibbs was deploy ed for fiftee n months, from “2007 to 2008. 2006 to 2007.” I n J une 2009, Gibbs pled guilty to unauthorized use of a motor vehic le and r ece ived a se ntence of five y ear s defe rre d adjudication, and in Octobe r 2009, he tested positive for c ocaine . As a re sult, 3 his defe rre d adjudication was revoke d and he enter ed a Substance Abuse Fe lony Punishm ent (SAFP) fac ility in November 2 0 0 9

. He completed the SAFP prog ram in J une 2010 and then completed a three -month term in a half way house af ter his re lease

. On Dec ember 22, 2009, one or two months a fter Gibbs enter ed the SAFP prog ram, T.R. was born with drug s in her sy stem and was p l ace d in a neonata l intensive car e unit (NI CU) beca use doctor s fe ar ed she was suffe ring from drug withdrawa l. Howeve r, the hospital soon deter mined she was doing well and was not showing signs of withdrawa l. Camelia was living with Gibbs’s family at the time, and X.U. and J .C. wer e stay ing with Camelia’s fathe r. The Depa rtment

was conce rned about the boy s’ place ment with Camelia’s fathe r due to his thirty -y ear -long criminal history , including char g es of drug possession, ag g rava ted assault, and driving while intox icated, and

Camelia testified that a t the time of trial, she a nd Gibbs were separ ated a nd divorcing

. 2 I n May 2006, Gibbs also pled no contest to assa u l t i n g Camelia, althoug h he testified at 3 trial that he mere ly rea cted in self-de fense when she bit him while he was sleeping

. He succe ssfully completed de fer

red- adjudication community supervision for tha t char g e. 3beca

use when Camelia was thirteen y ear s old, she made an outcry that her fathe r had sexually abused her w hen she w as seve n or eig ht. Camelia, howeve r, testified that the boy s were only on vacation with her fathe r when T.R. was born and that they wer e not wi t h h i m fo r a long- term place ment. Fur ther, she was not nervous about leaving the boy s with him, did not reme mber accusin g h im of sexual abuse or being molested by him, and did not know the details of an ag g ravated-sexual-abuse conviction that resulted in his serving time in prison. Camelia testified that althoug h she never told any one from the Depa

rtment Proctor’s name when the children wer e remove d from her car e, neither did she tell them that J .C.’s last name was Gibbs or that he was Gibbs’s biologica l son; J .C.’s birth

cer tificate doe s not list a father’s na me and shows Came lia’s maiden name as his last name. Gibbs testified t h at during his deploy ments to Iraq, he was near or involved in roadside explos ions multipl e times and hurt his head or suffe red minor concussions “about three or four times.” He also said he lear ned during his first deploy ment that Camelia was cheating on him and that he was diag nosed with post-traumatic stress disorder afte r his second deploy ment. He had

an appointment to ha

ve a brain scan to de termine whether he was suffe ring from a tr aumatic br ain injury later in the month, a fter trial. I f he is found to have such an injury , he will rec eive disability pay ments from the military , althoug h he admitt ed that there was no g uara ntee that the scan would

reve al a phy sical condition that will qualify him for the benef it. Gibbs testified that he started using

coca ine with a fr iend when he returne d from his second de ploy ment. Gibbs was dischar g e d f

r o m th e military in October of 2010, shortly afte r his discharg e from the halfwa

y house, and left with a “Ge nera l Dischar g e under Other than Honora ble Conditi ons f o r M is c o n d

u c t. ” A f te r le a v in g th e mi li ta

r y a n d th e h a lf

w a y h o u s e , G ib b s w o r

k e d o d d jo b s a

n d lo o k e d

4for work at the Workforce Commi ssion office s sever al times a wee k. I n ear ly Marc h 2011, he found

a reg ular job working for a company called Pactiv, and he testified that he was still employ ed there and that his schedule was chang ing to nights to acc ommodate his appointments and visitations. At
t ri al, howeve r, he was shown a letter that stated his employ ment had been terminated t wo we ek s

ear lier. Gib b s s ai d h e wa s “unaw are of i t” and testified t hat he had last worke d the Friday befor e trial, about a wee k afte r the letter said he had been terminated. Gibbs was asked whether he had told the Depa rtment that he ha d been f

ired, a nd he said:

I was unawa

re of that beca

use I talked to my boss ever y day for long and he—and he informed me when I missed—I didn’t have—be cause my car broke d own. I didn't have a ride to work for two day s. I had called him. And he told me they was alre ady planning on moving me to the night shift beca use of my day

time appointments with the VA and with me seeing my childre n . He said he was alre ady talking about moving me to nig ht shift. Gibbs plans to continue working and to g o to school online throug h the G.I . Bill to g e t a n A s s o c ia te ’ s D e g r e e in B u s in e s s M a n a g e me n t s o th a t h e c a n o p e n h is o w n b a

r b e r s h o p s o me d a

y . Gibbs also testified that he plans to ree nlist in the milit ary but that beca use he rec eived an OtherThan-H onorable discharg e, he had to wait six m o n t h s from his October 2010 discharg e. Gibbs testified he will be considere d non-deploy able if he has cus t o dy of the children and that when he

ree nlists, the childre n will have medica l cover ag e and he will be making a stea dy income. He has

arr ang ed for

a fa mily friend to c are for the c hildren while he is at work. Under the terms of his probatio n , s in c e le a v in g th e halfwa

y house, Gibbs was require d to take appr ox imately

two drug tests ever

y month, all of which we re neg ative for drug use. Gibbs testified that h e wo uld be on probation for betwee n one and two more y ear s. Gibbs said he took

5three drug tests for the Depa rtment in June and J uly of 2010 but the n missed D epar tment-requir ed
tests for about six months beca use he could not aff

ord them; he testified that he told his case worke r that he did not have a j ob or m oney to pay for the tests. He was able to restar t taking tests for the Depa rtment in Dec ember 2010. His first test came back positive for coca ine but the ten other tests he took for the Depa

rtment betwee n J anuar

y and Marc h 2011 have all been neg ative, along with his probation tests since his rele ase from the halfwa y house and a drug test for work at Pactiv. He said, “I ’m done with drug s. I t’s not worth what it—I put my kids throug h or what I ’ve been throug h. My kids don’t deserve to be wher e they ’re at. And I ’d like them to be home w ith me.”

Camelia and Gibbs testified that they had si g ned a lease toge ther effe ctive April 1, 2011, less than two wee ks befor e trial, thinking that it would be better for the children if they could

rec oncile. Howeve r, Camelia moved out afte r about a wee k beca use she and Gibbs decide d that they could not g et along with eac h other. Gibbs testified that he had spoken to his landlord about having Camelia’s name remove d from the lea se, but the landlord told hi m “it would be a whole bunch of leg al issue [sic] she would have to go thr oug h to have he r name remove d off the le ase.”

Ang el Cruzcora, staffing manag er for the employ ment ag ency that had place d Gibbs
at t he P activ plant, testified that Gibbs was hired on Marc h 1, 2011, and automatically terminated Marc h 29 afte r two no-shows. Cruzcor a s ai d t h at i f an employ ee does not call at least two hours befor e his assig ned shift, it is considere d a “no-show, no-ca ll,” and that two such absenc es result in automatic termination. Cruzcora testified that he tol d Gibbs he had been terminated but also said that Gibbs had called him the day befor e, afte r Gibbs was shown the termination letter during trial, and that Gibbs sounded surprised to lear n that he had been terminated. Cruzcora ag ree d that more

6than one staffing ag ency provided employ ees for Pactiv and althoug h he testified that Gibbs did not

work at Pactiv throug h his ag ency the wee k befor e trial, he admitted it was possible, if unlikely , that Gibbs had worke d throug h another staffing ag ency . Depa rtment case worke r J enny Sy kes testified that the D e partment’s plan for the three children was for them to be adopted toge ther. They wer e curr ently in the same foster home, wher e they wer e doing well, but the foster pare nts are not g oing to a dopt them. She said that it was hard
to find adoptive homes for “[l] arg er sibling g roups” and that the Depa rtment had not located a home for these children in its seven to nine months of see king one

.

Sy kes t estifi ed that Gibbs had complied with all of t he Department’s require ments

w h il e h e w a s in th e h a lf

w a y h o u s e , in c lu d in g c o mp le ti n g a p s y c h o lo g ic a l e v a lu a

ti o n a n d p a r ti c ip a ti n g in ong oing thera

py , and that it was obvious he loved all three children and they loved him. She said Gibbs had made “some prog ress” and seems “open to working whateve r service s. I t’s just timewise, the kids continue to stay in—in the Foster Care Sy stem.” Sy kes did not believe the children should be returne d to Gibbs’s car e beca use of the instabilit y in his employ ment, possible instabilit y with his h o u s i n g situation, and conce rns that he might not protec t the children from Camelia if nece ss ar y . She admitted, howeve r, that Gibbs’s curr ent housing was neat, safe , and appropr iate for children. She also knew of

the ar rang ements Gibbs had made for c hildcare

. Sy kes testified that if Gibbs’s rig ht wer e not terminated, there was a possibili ty that the children would continue in the Depa rtment’s car e until Gibbs was able to reg ain full custody

. She also testified that she did not know about Gibbs’s clea n drug tests throug h probation until about

a month befor e trial. Sy

kes ag ree d that althoug h Gibb s wa s cooper ative, despite being limit ed in

7what he could do on his family service plan while h e wa s i n the halfwa y house, the Depa

rtment

c h a n g ed its plan from reunific ation to termination and adoption in September 2010, at approximate ly
t h e s am e time Gibbs was completing his term there and befor e he could establish stability in h i s housing or employ

ment situations. Sy

kes said the Depa

rtment’s plan chang ed beca use she did not think he would be able to make sufficie nt prog ress befor e the case ’s orig inal dismiss al date, set for Dec ember 2010. Howeve r, in November , the case was extended for six months, setting a J uly 2011 dismiss al date a

nd April 2011 trial date. Asked why the Depa

rtment did not add Proctor to the suit until November 2010, six months befor e trial, Sy

kes said that she “over looked” information in a J une 2010 thera pist’s repor

t that Proctor, not Gibbs, was J .C.’s biologica l fathe r. Sy kes said neither Gibbs nor Camelia told her that Gibbs was not J .C.’s biologica l fathe r, and as soon as she rea liz ed that Proctor was J .C.’s fathe r, she “did a diligent sear ch” and wrote Proctor a letter. Proctor responde d within the same month, and Sy kes said the Depa

rtment soug ht an extension of the case beca use of Proctor’s rec ent involvement. P ro ct o r t o l d the Department t hat hi s mother wanted to take care of J .C., and she beg an coming to hear ings in Dec ember 2010 or J anuar y 2011. A home study was conducte d, and two wee ks befor e trial, Proctor’s mother was approve d for J .C.’s place ment, but beca use the Depa

rtment wants to keep the siblings tog ether , it did not pl ace J .C. with her.

The Department developed a service plan for Proc tor in Dec ember 2010, requiring him to complete a psy cholog ical evalua tion and a pare nting class, service s Sy kes testifi ed were available in prison. Be cause the Depa rtment does not have contra cts out of st ate, it was P roctor’ s responsibility to find service providers, and Sy kes admitted that Proctor had a short amount of time

8to find and complete the require d service s. The Depa rtment’s final hear ing repor t stated that Proctor had not completed either require ment. As for Proctor’s rele ase from prison, in his November 2010 letter, he told Sy

kes that he would b e re l ea s ed in J une 2011, but Sy kes testified that her rese arc h showed Proctor

would be elig ible for pa

role re view in D ece mber 2011. Sy kes wa s asked whe ther she would be s u rp ri s ed that Proctor was supposed to be rele ased to a halfwa y house in J une, and she said, “I

didn’t know that, sir.” Psy chother apist J anice Holladay testified that she had worke d with Gibbs, Camelia, and the children since the beg inning of 2011. She said J .C. and X.U. had “beha vioral issues that are outside of the norm of children their ag e,” althoug h not to an extreme deg ree , and Holladay did not

o b s er v e such issues with T.R. J .C. could be defia nt and oppositional, and Holladay said Gi b b s would “appr opriately ” chang e his tone or raise his voice when nece ssary to show J .C. that Gibbs was serious. X.U. had rec ently incre ased the fre quency of his bed-w etting, which indicated “some level of distress,” a

nd was showing some destruc tive behavior

. Holladay said that when she first beg an to w ork with the family , she knew J .C. was not Gibbs’s biologica l child, so she wanted to “obser ve how he interac ted with all the children. And I saw no differ ence in how he trea ted all three children. He trea ted them all as if t h ey we re h i s children.” Holladay testified that J

. C

. and X.U. wer e both bonded with Gibbs and that all three “re sponded to him and called him Daddy .” She said that althoug h Gibbs was g ener ally soft-spoken and sometimes had difficulty setting limit s, he listened to and tried to act on rec ommendations, had the ability to lear

n better pare nting skills, and curr ently had “some rea lly adequate pare nting skills.” Holladay said that to reg ain custody , Gibbs neede d to be fre e of drug s for at least six m o nths and

9have a s table job and housi ng . When asked if G ibbs had ac hieved those g oals, she answ ere d, “At

this point in time, y es.” She also said that “to the best of [her] knowledg e,” it seeme d that Gibbs had “wor ked, has taken advanta g e of the service s the Depa rtment has provided for him and that he is now in a position to be able to car e for his two children and a child that is not his.” She thought this was

a “ver y difficult case ” and stated that in the se case s, she does not “make a rec ommendation for the

r ig hts to b e te r

mi n a te d o r n o t. I le a

v e th a t to th e ju r y to d e c id e . ” H o w e v e r , s h e b e li e v e d th a t it w o u ld neg atively

aff ect the c hildren neve r to see G ibbs ag ain. Tina Ander son, an occupational thera p is t w h o w o r

ks with J .C. and X.U., testified that when she started seeing them, J .C. was having trouble with cer tain bas i c activities, was placing non-food items in his mouth, and had some auditory sensitivity and speec h difficulties, and X.U. had “motor planning difficulties,” “visual perc eptual challeng es,” and speec h difficulties. X.U. has also had a chronic ear infec tion for some time, and Ander son said his sensory proce ssing disorder could be cause d in larg e part by that. Gibbs attended many of Ander son’s sessions with the boy s, and T.R.

was often broug ht to the sessions so Ander son cou l d observe Gibbs’s interac tions with all three children. She said that the children listened well to Gibbs, even in the distracting environment wher e the sessions wer e held. She said the boy s wer e likely to be distracted, and Gibbs “wa s g ood at using that firm voice, calling the boy s, and they responde d to him immediately .” Ander son testified that Gi b b s wa s g ood at g uiding the children without g iving them answe rs and that he sat and re ad with the children. Gibbs was “emotionally focuse d” o n t h e ch i l d ren and responde d normally and appropr iately to Ander son’s sug g estions, and the boy s “talk with a lot of pride about t h ei r family

. And they ’re eag er to be rejoined. They —they talk about it often.” She was asked whether it might

10harm the children for them to be cut off from contac t w ith their pare nts, a nd she answe red, “Ye ah. I think beca

use they know them and it’s—it’s a very difficult thing. I think—y eah. I definitely think it would affe ct them.”

L inda Edwar ds, the children’ s foster mother, testified that she and her husband would
not adopt the children beca use they wer e g etting too old to raise y oung children throug h high school. The children came to live with Edwar ds and her husband upon their remova l f rom Camelia’s car e, and Edwar ds said the boy s hoarde d food and wer e undisciplined. She said that X.U. and J .C. g et into phy s i cal fig hts, sometimes over g ifts their pare nts have g iven them, that X.U. was the more ag g ressive and jealous of the three children, that the boy s cannot be left alone with e ach other, and that both boy s wer e g entle with T.R. Edwar ds ag ree d that y oung siblings tended to fig ht with eac h other but said, “T hey

leave marks on eac h other. This—this i s not good.” The c hildren ask a bout Gi b b s “a l l the time.” They do not mention or ask about Camelia. Edwar ds said J .C. knows that Gi b b s is not his biologica l fathe r but “cla ims Mr. Gibbs as his fathe r.” Edwar ds said that the children had some problems at the beginning and that they improved wit h counseling for a while, then rela psed when they started seeing their m o t her for visitation. Their behavior did not chang e when they started seeing Gibbs for visitation. Edwar ds observe d the children’ s visitation with Gibbs

occa sionally , and she said that he “see med okay ” and that she had never seen any thing to make her think he was not ca

pable of pare nting the c hildren. Social worke r L inda Malsbary testified that she did a “Psy cho/Social evalua tion” on Gibbs and started counseling him in Aug ust 2010. Malsbary testified that he had alway s “pre sented

as someone who was very devoted to his children. He was not afr aid to express his emotions.” She

11also said he “appe are d very open and honest with me throug hout my interac tions with him.” Gibbs

told Malsbary that he did not want to reunite with Camelia, and she was conce rned when she lear ned that they had signe d a lease toge ther shortly befor e trial. Ba sed on her conver sations with Gibbs, howeve r, she did not believe that Camelia and Gibbs would attempt to live toge ther. She had visited Gibbs’s new home , which wa s spacious, cle an, and de corated for the children’ s return.

Gibbs did not tell Malsbary that he had been fired from Pactiv, and about a wee k befor e trial had told her that he was still employ ed. Malsbary “wa s very surprised to hear that he lost his job,” but did not believe he had lied about his e mploy ment, saying,“ [F]rom wha t I understand, he rea lly thought he still had a job on 4/7, when I talked to him.” She ag ree d that Gibbs had blamed his drug abuse on the s tress of Camelia’s affa ir and his war experience s and agr ee d t h at wo rking , g oing to school, and raising three children by himself would also be stressors. She thought, howeve r, that Gibbs had lear

ned how to addre ss his PTSD and was participa ting in thera py , wher e he had made prog ress and had “bee n succe ssful.” Gibbs thinks of J .C. as his son and does not fee l differ ently about him than he does the other children, and Malsbary testified that she thought Gibbs

was capa ble of car ing for the children and supervising any contac t betwee n Camelia and the children. She did not believe that Gibbs’s pare ntal rig hts should be terminated and said, “I think there has to be clea r and convincing evidenc e that he is a fit pare nt. And curr ently , he’s not using drug s. He’ s been participa ting in thera py .” Malsbary ’s only conce rn was that Gibbs had lost his job, but she did not think there wa s any

rea son he wa s incapa

ble of finding another

. Shannon Bloxham, the children’ s g uardia n ad litem, testified that she had had “a lot of conta ct” with Gibbs, a few conver sations w ith Camelia, and no conta ct with Proctor, due to his

12imprisonment. She first had contac t with Gibbs when he transitioned out of the halfwa y house, lost
contac t with him for sever al months beca use she did not have a contac t number for him, and resumed monthly contac t in J anuar y 2011. Bloxham had visited Gibbs’s home to assess its condition and said it was clea

n, safe , and appropr iate. Bloxham te stified that Gibbs completed his require d pare nting class “pre tty q u i ck ly ” afte r g etting out of the halfwa y house. Bloxham testified that the help provided by the Department has put Gibbs “in t he posi tion wher e he could be an adequate par ent. I think ther e’ s s till some service s that he would benef it from if the children wer e returne d to him. They need a lot of structure

. He’ s been kind of out of the picture with—in [t he SAFP fac ility ] and—and deploy

ments. So I think there ’s a transition period that needs to be made and he needs to be in thera

py with [Malsbary ] and the Occ upational Ther apy with [ Ander son].” Blox ham di d not believe Gibbs would be unable to provide for the children, and she said, “I believe it would not be in the children’ s best interest to terminate his pare ntal rig hts.” She also said that beca use she thought Gibbs should retain his rig hts, she did not think i t w as in the children’ s best interest for Camelia’s

or Proctor’s rig hts to be ter minated bec ause the y

could provide G ibbs with financial support. The Depa rtment challeng ed Bloxham about the children’ s best interest, asking whether it would be better for them to be adopted into a stable home, and Bloxham said, “We don’t have a stable home for them rig ht now. They ’re in foster car e. They ’re in a g reat home. A wonder ful home. But they do not want to adopt these c hildren. . . . And we don’t know whe re the y ’re g oing to g o.”

Debbie McKinney , an assi s t an t i n Bloxham’s office , testified that she visited the children seven times at their foster home. She said J .C. and X.U. “re quire a g reat deal of structure ,” X.U. has “ag g ressive tendenc ies,” and T.R. was thriving. McKinney believed that Proctor’s rig hts

13should “definitely ” be te rminated, say ing, “I can’ t see whe re he ’s a viable pare nt in any reg ard f or these children,” but also said, “I can’ t say one hundred perc ent that termination is best for the children beca

use it seems—it’s almost a lose, lose situation for these kids.” As for Gibbs, McKinney did not state whether she thought Gibbs’s rig hts should be termi nated but said she had “g enuine

conce rns” that bring ing the childre n into Gibbs’s home could be a stressor that could cause him to rela pse. She was conce rned about Gibbs’s fitness as a pare nt and said she “ca nnot see these children g oing home to their pare nts at this time” beca use Gibbs was without a job and was working out timeconsuming issues with the milit ary . McKinney had never met or observe d Gibbs with the children, howeve r, and ag ree d that Bloxham “wa s more qualified to make a rec ommendation” as to his rig hts.

Arthur Potts , the children’ s attorney ad litem, d id n o t p rovide testimony , but he joined in G ibbs’s motion for a direc ted verdic t, a sserting that the Depa rtment had not prese nted clea r and convincing evidenc e that termination of Gibbs’s rig hts was in the children’ s best i n tere st. I n his closing arg ument, he said, “ I f Mr. Gibbs we re not in t his case ,” he would argue for termination of Camelia’s and Proctor’s rig hts and stated that he ag ree d with the Depa rtment that the evidenc e showed Proctor and Camelia lacke d the ability to b e ad eq u at e p are nts. Howeve r, he argued, the evidenc e did not show that it was in the children’ s best interest for Gibbs’s rig hts to be terminated. 4 I nstead, Potts stated, the Depa rtment ’s ef

fo rt s h ad been “ver

y succe ssful for Mr. Gibbs” and the evidenc e showed that Gibbs was “ca pable of being a g ood pare nt” and that it wa s in the children’ s best interest for Gibbs to maintain his rig hts and to be able to work with the Depa rtment’s service s.

Potts also joined Gibbs’s motion for a direc ted v er d i ct t h at argued the Depa rtment had 4 prese nted insufficient evidenc e that termination of Gibbs’s rig hts was in the children’ s best interest. 14Stand ard of Review A pare nt’s rig hts to his c hildren are constitutional intere sts “ far more pre cious than any proper

ty rig ht.” Santosky v. Kramer , 455 U.S. 745, 758-59 (1982). When the Depa rtment files
a ter mination case, it see ks to sever those r ights irr evoca bly

. See Holick v . Smith , 685 S.W .2d 18, 20 (Tex. 1985). To justify termination, the Depa rtment must prove both that the pare nt eng ag ed in conduct enumera ted as g rounds for termination and that termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001 (West Supp. 2011); In re C.H. , 89 S.W .3d 1 7 , 2 3 (T ex . 2002); W illiams v. W

illiams , 150 S. W

. 3 d 4 3 6 , 449 (Tex. App.—Austin 2004, pet. denied). Proof of one

r e q u ir e d e le me n t d o e s n o t r e li e v e th e D e p a r tm e n t o f th e b u

r d e n o f p r o v in g th e o th e r . H o ll e y v . A d a m s , 544 S.W .2d 367, 370 (Tex. 1976) (qu o t i ng W iley v. Spratlan , 543 S.W .2d 349, 351 (Tex. 1976)). Be cause the termination of a pare nt’s rig hts to his children is a drastic r emedy of g rea t w eig ht a nd g r a vity , the Depa

rtment must justify termination under the heig htened standard of proof of “cle ar and convincing evidenc e,” a standard more demanding than the preponde ranc e standard usually applied in civil proce eding s. See Tex. Fa m. Code Ann. § 161.001; W illiams , 150 S.W .3d at 448-49. “Clear and convincing evidenc e” is “the measure or d egr ee of proof that will produce in the mind of the trier of fac t a firm belief or conviction as t o the truth of the alleg ations soug ht to be established.” Tex. Fam. Code Ann. § 101.007 (West 2008); see C.H. , 89 S.W .3d at 25; W illiams , 150 S.W .3d at 449. I n our revie w, we “must maintain the respe ctive constitutiona l roles of juries and appellate courts” a nd reta in appropria te def

ere nce “ for the f

actf inder’s r ole.” C.H., 89 S.W .3d at 26. Thus,

our revie w “must not be so rig orous that the only fac tfindings that could withstand revie w are those established bey ond a re asonable doubt.” Id.

15I n considering the evidenc e support i n g a termination order , we first consider leg al

sufficie ncy , viewing all of the evidenc e in the light most favor able to the fac t-finder ’s deter mination, assuming that the fac t-finder resolved disputed fac ts in favor of its finding if it would be rea sonable
to do so, and asking whether the fac t-find er “c o u l d rea sonably form a firm belief or conviction” that the g round s fo r t er m i n ati on wer e proven. In re J.F.C. , 96 S.W .3d 256, 265-66 (Tex. 2002); W illiams , 150 S.W .3d at 449. We disreg ard evidenc e t h at a rea sonable fac t-finder could have disbelieved o r found to be incre dible but need not disreg ard all evidenc e that does not support the finding s. J.F.C. , 96 S

. W

. 3 d at 266; W illiams , 150 S.W .3d at 449. I nstead, we must consider undisputed evidenc e, including evidenc e that does not support the finding s, and if we deter mine that

no rea sonable fact-f

inder could have formed a firm belief or conviction that t h e m at ters on which the Depa rtment bore the burden wer e true, we will conclude that the evidenc e is leg ally insufficient, rende ring judgme nt in the pare nt’s favor

. J.F.C. , 96 S.W .3d at 266; W illiams , 150 S.W .3d at 449. I f we deter

mine that the evidenc e is leg ally sufficie nt, we turn to fac tual sufficie ncy ,

v i ewing all of the evidenc e in a neutra l light to deter mine whether the fac t-finder could have

rea sonably formed a firm belief or conviction about the truth of the Depa rtment’s alleg ations. See J.F.C. , 96 S.W .3d at 266; Y onko v. Departme nt of

Family & Protective Servs. , 196 S.W .3d 236, 244 (Tex. App.—Houston [1st Dis t .] 2006, no pet.). I n other words, evidenc e is fac tually insufficient only if “a rea sonable fac tfinder could not h av e resolved that disputed evidenc e in favor of its finding ” and if “the disputed evidenc e that a rea sonable fac tfinder could not have cre dited in favor of the finding is so significan t t h at a fac tfinder could not rea sonably have formed a firm belief or conviction.” J.F.C. , 96 S.W .3d at 266. I ssues rela ted to witness cre dibilit y , meaning questions that

16turn on a witness’s appea ranc e or demea

nor, are left to the fac t-finder ’s deter mination as long as its deter mination is rea sonable. In re J.P.B. , 180 S.W .3d 570, 573 (Tex. 2005) (quoting Southwestern Bell Tel. Co. v. Garza , 164 S.W .3d 607, 625 (Tex. 2004)).

I n revie wing a best-intere st deter mination, we consi der: the child’s wishes, her emotional and phy sical needs now and in the future, emotional or phy sical dang er posed to the child

now and in the future, the pare nting skills of those seeking custody , prog rams av ai l ab l e t o assist those seeking custody to pr omote the child’s best intere st, plans for the child’s future, the stability of t he home, any

conduct by

the parent that might show that the ex isting parent-c hild rela tionship is improper or harmful, and any excuse for that conduct. Holley , 544 S.W .2d at 372. The Holley fac tors, while providing g uidance , are not exhaustive, nor must all fac tors be proved for us to aff irm

a ver dict in favor of

termination. C.H. , 89 S.W .3d at 27. As the C.H. court e x plained:

The absenc e of evidenc e about some o f t h ese considerations would not prec lude a fac tfinder from rea sonably forming a strong conviction or belief that termination is in the child’s best interest

. . . . Other case s, howeve r, will prese nt more complex fac ts in which paltry evidenc e rele vant to eac h consideration mentioned in Holley would not suffice to uphold the jury ’s finding that termination is require d.

Id.

Gibbs

Gibbs does not contest the sufficie ncy of the evidenc e to show statutory g rounds for termination

. He argue s instead that the evidenc e is leg ally and fac tually insufficient to support a finding that termination is in the children’ s best interest. Be aring in mind the heig htened standard of proof borne by the Depa rtment and our role in revie wing the sufficie ncy of the evidenc e, we will

17examine the evidence related to Gibbs and the children’ s bes t interest, usi ng the Holley fac tors as

a g uide. See H

olley , 544 S.W .2d at 272. On the issue of best interest, Holladay , the children’ s psy chother apist, testified that Gibbs had “some rea lly adequate pare nting skills,” that the chil d re n wer e bonded with and loved him, that they responde d well to him and l o o k ed fo rw ar d to their visits with him, and that she

rar ely had to intervene to teac h Gibbs pare nting skills. For Gibbs to r eg ain custody , Holladay said he should b e d ru g fr ee, have a job, and have housing, and she believed he had achie ved those require ments despite some conce rns about his employ ment instabilit y . She believed the pro cess had worke d for Gibbs, wh o had taken advanta g e of the service s offe red by the Depa rtment, and ag ree d when asked whether Gibbs, to the best of her kn o wl ed ge, was “in a position to be able to

car e for his two children and a child that is not his.” She said that it “would neg atively aff ect” the children if they wer e not allowed to se e Gibbs, althoug h she declined to g ive a rec ommendation as to termination, say ing tha t was not her r ole in these c ases. Ande rs o n , the boy s’ occupational thera pist, testified that it would cause the boy s emotional harm if Gibbs’s pare ntal rig hts wer e terminated and that Gibbs was very g ood at handling the children. The children’s foster mother st ated that Gibbs seeme d to be a fit paren t and that the boy s did not show bad behavior in response to visitation with Gibbs. Malsbary , Gibbs’s counselor, testified that Gibbs worke d hard at thera py , had obtained an appropr iate apar tment, and was capa

ble of being the children’ s primary car e g iver. She testified that Gibbs’s rig hts should not be terminated. Bloxham, the children’ s g uardia n ad litem, also testified that Gibbs’s rig hts should not be terminated

an d that Gibbs had made prog ress through Depar tment-provided services and would benef it from

18the family ’s continuing to work with Malsbary and Ander son. Potts , the children’ s attorney ad litem,

argue d that Gibbs’s rig hts should not be terminated and that the evidenc e showed it wa s i n t h e children’ s best interest for him to work Depa rtment service s to reg ain custody

. The evidenc e shows that the children, espec ially the older boy s, wer e very bonded with and attache d to Gibbs and wanted
t o l i v e with him ag ain, and Gibbs was descr ibed by multipl e witnesses as being g ood with an d attache d to the children, r esponsive and ope n to criticism, and firm whe n nece ssary .

The only witness who testified that the termination of Gibbs’s rig hts would be in the children’ s best interest was Sy kes, who testified that Gibbs was not fit to be a pare nt beca use of his employ ment instabilit y , possible instabilit y with his housing situation, and her fea r that he would not protec t the children from Camelia if nece ssary . Howeve r, she did not explain the housing instabilit y she mentioned, and the evidenc e was that both Gi b b s an d Camelia ag ree d that their rela tionship

was completely over and that Camelia was involved with another man. Sy kes also testified that the Depa rtment had initially soug ht to reunite Gibb s and the children but chang ed its plan to seek termination and adoption in September 2010, just afte r Gibbs was rele ased from the halfwa y house and befor e Gibbs had the opportunity to establish stability in housing and employ ment. Sy kes explained that the plan chang ed beca use she did not thin k h e woul d be able to make sufficie nt prog ress before the case’s original Dece mber 2010 dismiss al date, but in November, the case was extended for six months, setting a J uly 2011 dismiss al date, and Sy kes seems not to have considere d whether the extra time would have allowed Gibbs to show his stability

. Finally , Sy kes testified that it was in the children’ s best interest to terminate Gibbs’s and the oth er p ar en t s ’ rig hts so that the children could be adopted toge ther, but the testimony was that finding an adoptive home to take all

19three children was very difficult and there was no evidenc e that any candida tes had been located for

adoptive place ment. I ndee d , Bloxham noted that no prospec tive adoptive pare nts had y et been found and that, if the pare nts’ rig hts wer e terminated, the children would rema in in the foster sy stem indefinitely

until an appropriate place ment was found. Although the children are quite y oung , s ev er al witnesses testified that they love Gibbs and that the boy s have expressed a desire to live with him and speak of him and their family with pride. The boy s have some issues that are outside the normal rang e, but not excessively sever e, and the testimony was that t h e Depa rtment could continue offe ring service s to the children if Gibbs reta ined hi s pare ntal rig hts. Va ri o u s witnesses, m any of whom are trained to help children thera peutically , testified that Gibbs was very g ood with the children, handled them well, even when they wer e being difficult, responde d well to r ecommendations a bout his pare nting, and had a g ood rela tions h i p wi t h t h em. There was also testimony that Gibbs had subst antially complied wit h the De p artment’s require ments, had made g ood use of the service s offe red by the Depa rtment, and would continue to improve with further education and resour ces. Sy kes testified that it was possible
t h at t h e Depa

rtment could stay involved with Gibbs if he reta ined his pare ntal rig hts, contin u i n g to offe r service s to improve his pare nting abi l i ties and support as he reg ains stability in his employ ment. Gibbs had a rela

tively short history of drug use, appar ently beg inning afte r he returne d fr o m the second of two deploy ments to I raq, wher e he was involved in and injured in sever al

ex p losions. And, althoug h the witnesses ag ree d that Gibbs’s past drug use was dang erous t o t h e children, the evidenc e showed that except for one positive test in Dec ember 2010, Gibbs had tested neg ative for drug s about ever y two wee ks since at least September 2010 and was committed to

20rema ining dr ug -fr ee in or der to take car e of the children. The evidenc e rela ted to G ibbs’s housing was that it was clean and appropr iate for children, and the onl y appar ent i nstability in his life was his employ

ment situation. I t was unclea r whether he was still working at Pactiv, staffe d on a night shift throug h a differ ent ag ency , or whether he would have to seek a new job or could ree nlist in the

near future. As for the circ umstances that led to the children’ s remova l from Camelia’s car e, Gibbs

was in the SAFP prog ram at the time, and there was no evidenc e he knew Camelia was using drug s while preg nant or had a history of drug use. Finally , the Depa rtment’s plan for the children was to place them toge ther in an adoptive home, but the witnesses ag ree d that no such home had been found in severa l months of looking and that suc h homes wer e har d to find for lar g er sibling g roups.

When w e view the evidenc e in the light most fa vorable to the jury ’s deter mination, the rec ord shows that the children wer e remove d from Camelia’s car e at a time when Gibbs was incar cer ated in the SAFP prog ram due to his drug use, that he missed a number of Depart m entorder ed d ru g t est s while the case was pending , and that he continues to have appar ent instabilit y in his employ

ment. On t his rec ord, we cannot conclude that no rea sonable fact-f inder could have formed a firm belief or conviction that it was in the children’ s best interest to terminate Gibb s ’s pare ntal rig hts. See J.F.C. , 96 S.W .3d at 26 6

. We there fore hold that the evidenc e is leg ally sufficie nt to support the jury ’s finding as to best intere st. See id.

We next consider the fac tual sufficie nc y o f the evidenc e, bear ing in mind the prec ious
nature of a pare nt’s rig hts to his children, see Santosky , 455 U.S. at 758-59, the clea r-a nd-convinc ing standard, and al l o f the evidenc e, including evidenc e that weig hs ag ainst the jury ’s finding , see J.F.C. , 96 S.W .3d at 266. When we view all of t he evidence in a neutral light, the overw helming

21weig ht of the evidenc e, larg ely prese nted by experts who worke d with Gibbs and the children, is that

the children will be harme d if Gibbs’s rig hts are te rminated a nd that he has the capa

bility of being

an appropr iate, competent pare nt. The only best-intere st evidenc e to the co n t rar y was offe red by Sy kes, a Depa

rtment case worke r, and was premised on the arg ument that termination would g ive the children stability throug h an adoptive home. Howeve r, at the time of trial, no such home had been

secur ed , s u ch a home would be difficult to find, and potential place ments for the near future had
not materia liz ed. And, althoug h “the Depa rtment need not prove definitive pl an s for the child’s place ment,” we also must keep in mind the “strong presumpt i o n t h at t he best interest of a child is serve d by keeping custody in the natura l pare nt.” In r e J.N. , 301 S.W .3d 429, 435 (Tex. App.—Amar illo 2009, pet. denied) (citing In re D.T. , 34 S.W .3d 625, 641 (Tex. App.—For t Worth 2000, pet. denied) ).

We r ecog nize that we must give due defe renc e to the jury ’s fac tual deter minations. See C.H. , 89 S.W .3d at 26. Howeve r, the overw h el m i ng weig ht of the evidenc e, mostly throug h
uncontrove rted testimony by objective, uninterested expert witnesses, was that it is in the children’ s best interest for Gibbs to maintain his rig hts to them. The only evidenc e to the contra ry was Sy kes’s testimony that a perma

nent adoptive home, the likes of which had not bee n l o cated, would be pref era ble. Un d er the elevated clea r-a nd-convinc ing standard of revie w, when we consider the balanc e of the evidenc e, we can only conclude that the evidenc e is fac tually insufficient to support the jury ’s best-intere st deter m i n at i o n as to Gibbs. See Y onko , 196 S.W .3d at 244-49 (addr essing Holley fac to rs an d holding,“ the State prese nted scant evidenc e the trial court could cre dit as to Yonko’s future inability

to meet the nee ds of the child under the Holley fac tors so as t o overc ome

22the case worke r’s assessment of the emotional risk to the child”); see also J.F.C. , 96 S.W .3d at

2 6 6

- 6 7 (if appellate court deter mines evidenc e is fac tually insufficient, it should “deta il in its opinion why it has conclude d that a rea sonable fac tfinder could not have cre dited disputed evidenc e in favor of the finding ”). 5

P roct or

As for Proctor, he complains that the evidenc e is i n s u fficient to support the jury ’s finding s of statutory

g rounds for te rmination and of be st interest. The jury found t hat termination

was appropr iate beca

use Proctor: knowing ly place d or allowed J .C. to rema in in condit i o n s t hat endang ere d his phy sical or emotional well-be ing; eng ag ed in conduct or place d J .C. with someone who eng ag ed in conduct that endang ere d his well-b ei n g ; constructively abandone d J .C. in the Depa rtment’s custody for at least six months while the Depa rtment made rea sonable eff orts to return J .C., but Proctor had not maintained signific ant contac t with him and had demonstrated an inability
to provide a safe environment; or failed to comply with a court order establishing actions nece ssary to obtain J .C.’s return. See Tex. Fam. Code Ann. § 161.001( 1)(D) , (E), (N), (O ).

See also In r e J. N

. , 301 S.W .3d 429, 434-35 (Tex. App.—Amar illo 2009, pet. denied) 5 (“[W] e can see no compelling benef it that would be g ained by sever ing the bond that exis ts betwee n Br adfor d and the child at this time, espec ially in lig ht of the Depa rtment’s curr ent plans to a ttempt to place the child with her biologica l fathe r. . . . As the evidenc e establishes that Br adfor d poses no threa t to t h e ch ild during supervised visit s and si nce the Depa rtment’s goal of providing the child stability and permanenc e through adoption cannot curre ntly be accomplished, we can n o t s ee h ow the finder of fac t could form a firm belief or conviction that the drastic act of termination would be in the best interest of the child.” (citations om itted)); In re C.E.K. , 214 S.W .3d 492, 503-04 (Tex

. App.—Dallas 2006, no pet.) (mother exhibi ted poor pare nting in past and CASA volunteer criticized mother’s behavior , but rec ord showed mother had “done ever y thing that CPS has require d of her and more,” had made prog ress and improvements, and car ed for children; “The best interest standard does not permit termination mere ly beca use a child might be better off living elsewhe re.” ); W illiams v. W illiams , 150 S.W .3d 436, 451-52 (Tex

. App.—Austin 2004, pet. denie d ) (o n ly evidenc e as to best interest wa s petitioner’s testimony that termination and a doption was in c hild’s be st inter est). 23Proctor was not notified of the Depa rtment’s involvement with the children or g iven

a family service plan until approximately six months befor e trial, he was expected to obtain his own service s while imprisoned out of state, and it would have been difficult for him to comply with the Depa rtment’s plan. How ever , Proctor did not prese nt any evidenc e that he had made any eff ort to comply with the plan, and Sy kes’s testimony and the Depa rtment’s final repor

t state that he had not met the require ments place d on him. See id. § 161.001(1)( O) (fa ilure to c omply with c ourt order ). Fur ther, Proctor di d not prese nt any evidenc e that he had contac ted J .C. at all during the time he was in the Department’s care or, i ndeed, that he had ever h ad wr itten or spoken to J .C. during his imprisonment. See id. § 161.001(1)(N) (aba ndonment without maintaining “sig nificant contac t”). There is no evidenc e that Proctor has any means to provide J .C. with a safe and stable environment, and no evidenc e of when Proctor would actua lly be rele ased or what his plans wer e upon his rele ase. See id. (fa ilure to demonstrate ability to provide child with safe environment). Finally , Proctor has been imprisoned for J .C.’s entire life and has been unable to

car e for J .C. Although incar cer ation alone does not support an infe renc e that the pare nt’s conduct endang ere d the child, it can show a pattern of conduct that had the eff ect of endang ering the child’s well -being. See Trevino v. Texas Dep’ t of Protective & Regulatory Servs. , 893 S.W .2d 243, 247 (Tex. App.—Austin 1995, no writ) (quoting Texas Dep’ t of Human Servs. v. Boyd , 727 S.W .2d 531, 534 (Tex. 1987)). Proctor had been imprisoned in a fede ral prison in a differ ent state for J .C.’s entire life, and in his letter to Sy kes, he said he had not spoken t o Camelia i n about eight m o n ths. Be fore being sent to fede ral prison, Pr o ct o r was convicted three times of state char g es of drug possession and was sentenc ed to time in the Texas Depa rtment of Criminal J ustice and to state jail.

24Thus, Proctor’s conduct shows a pattern that led to him leaving J .C. in Camelia’s car e and to Proctor

having so littl e contac t with the family that he did not know about J .C.’s remova l. See id. The only evidenc e rela ted to Proctor’s involvement in or knowledg e about J .C.’s life was that Camelia spoke
to him “once in a while” and that his mother attempted to have s o m e amount of contact with J .C. Howeve r, neither he nor, appar ently , his mother, knew that Camelia was using drug s or that J .C. and the other c hildren had be en re moved from he r ca re. On this rec ord, the evidenc e is leg ally and fac tually sufficie nt to support termination for plac ing J.C. in a sit uation that endang ere d his w ell-being or with a pe rson who enda ng ere d his well-be ing, constructively abandoning J .C. in the Depa rtment’s custody , and failing to comply with

a cour t order. See Tex. Fam. Code Ann. § 161.001( 1)(D) , (E), (N), (O ). Simi larly , as for whether termination of Proctor’s rig hts is in J .C.’s best interest, the evidence shows a history of drug possession and criminal conduct that led to Proct o r b ei n g imprisoned for the entirety of J .C.’s life. The rec ord also shows Proctor had almost no knowledg e about J .C.’s life and ve ry

littl e conta ct with him. J .C. is aware that Proctor is his biol og ical father and appare ntly has som e kind of relationship with Proctor’s mother, but there was no evidenc e of the nature or depth of t hat relationship, and Proctor’ s mother was a ppare ntly not involved enoug h
to know of J .C.’s remova l from Camelia’s car e. Furt h er , al t houg h two witnesses testified that Proctor’s rig hts should be prese rved if Gibbs’s rig hts wer e not terminated, the re ason for those opinions was that Proctor could then be require d to pr ovide financ ial support to Gibbs. There was

no evidenc e that could support a conclusion that Proctor is in or soon will be in any position to car e for J .C., of Proctor’s plans upon his rele ase from prison, the details of which wer e uncer tain, or that

25he has the pare nting skills or ability to be a competent pare nt upon his rele ase. We conclude that the

evidenc e is leg ally and fac tually sufficie nt to support the jury ’s finding that it is in J .C.’s best interest for Proc tor’s rig hts to be terminated.

Conclusion

We aff irm the termination decr ee as to Proctor. As for Gibbs, howeve r, the evidenc e i s fac tually insufficient to support a finding that termination of his rig hts is in the children’s best interest. We there fore reve rse the decr ee and rema nd the cause for further proce eding s rela ted to Gibbs.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Henson a nd Goodwin Affir med in Part; Reverse d and Remande d in Part Filed: Jul y

19, 2012

26