Opinion issued March 17, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00830-CV ——————————— IN THE INTEREST OF C.M. AND C.F., CHILDREN
On Appeal from the 306th District Court Galveston County, Texas Trial Court Case No. 13-CP-0068
MEMORANDUM OPINION
The Department of Family and Protective Services of Galveston County
sought to terminate the parental rights of a mother and father to their two young
daughters, Cindy and Cheryl.1 Mother participated at the termination trial; Father
1 The mother will be referred to as “Mother,” the father as “Father,” and the children as Cindy and Cheryl to protect their identities and for ease of reading. did not. After three days of testimony, the Department rested, Mother moved for a
directed verdict on all grounds, and the trial court granted the directed verdict and
declared that Mother’s parental rights were not terminated.
The Department argues that it presented sufficient evidence to raise a fact
issue on all pleaded grounds for termination and on whether termination is in the
children’s best interest. It challenges the trial court’s order granting Mother a
directed verdict, arguing that the court improperly removed fact issues from the
jury’s consideration.
We reverse.
Background
Mother is in her early thirties and has had a long history of drug use and
involvement with Child Protective Services. She has three older children who were
the subject of Department investigations. Mother agreed to place all three of the
older children with relatives before either of the two children that are the subject of
this suit—Cindy and Cheryl—were born.
In 2013, when Cindy was two years old, CPS began an investigation on
allegations that Cindy was left unbathed and there were drugs in the home. There
also was an allegation that Mother had “yanked” Cindy by the arm, but CPS ruled
out physical violence against the young girl. Both parents were drug tested; both
2 had positive test results for cocaine. Cindy was removed from the home and placed
with Mother’s aunt.
A family service plan was created that listed the steps Mother would be
required to complete to be eligible for Cindy to be returned to her care. These
included random drug testing, completing an outpatient treatment program,
attending NA/AA meetings, maintaining employment and stable housing, and
participating in supervised visitation, among others. The plan identified the
Department’s permanency goal as family reunification.
There is a statutory deadline to resolve termination suits within one year. See
TEX. FAM. CODE ANN. § 263.401(a) (West Supp. 2015). Through various
mechanisms discussed later, this case was pending almost two full years. In the
interim, Cheryl was born and immediately removed from Mother. By the end, the
Department had changed its goal to termination, for both girls, and a jury was
empaneled to hear the termination suit in March 2015.
The Department sought termination under Subsections (D) (dangerous
conditions); (E) (dangerous conduct); (O) (court-order violation); and
(P) (controlled-substance use) and under Section 161.003 (mental or emotional
illness). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), & (P) (West
Supp. 2015); Id. § 161.003 (West Supp. 2015). It further argued that termination
was in the girls’ best interest.
3 The jury received undisputed evidence that Mother completed all but two of
the requirements in her service plan. First, she failed two drug tests during the first
year she was under the service plan. She also admitted to taking a single Vicodin
pill without a prescription during the second year of her plan. But she passed all of
the drug tests during the remainder of her case.
Second, she never completed outpatient therapy. There was evidence that
Mother began outpatient therapy on four separate occasions, attended a total of six
months of outpatient-therapy sessions, and voluntarily enrolled in and successfully
completed a 30-day inpatient therapy stay that was not part of her service plan.
Mother did successfully complete individual therapy. She consistently
attended NA/AA meetings. She held the same job during the entire two years of
the case. And she was able to secure an apartment to satisfy the requirement of
stable housing. Further, there was ample evidence that the girls were well bonded
to Mother and that her interaction with them was appropriate. She was described as
“determined and motivated” to satisfy the Department’s requirements and regain
custody of her children.
At trial, there was disagreement among the professionals about whether the
goal should be reunification or termination. There was evidence that her
Department-assigned therapist supported reunification. Mother’s first Department
caseworker did as well. However, Mother’s latest caseworker recommended
4 termination, as did the most recent CASA representative assigned to the children’s
case. They based their recommendation on Mother’s failure to complete the
outpatient services and on the failed drug tests and admitted Vicodin use.
Mother’s aunt testified that she supported termination, though she based her
opinion on the past decade of drug use and a comparison between Mother and the
foster mother with whom she had developed a rapport.
After three days of testimony, the Department rested. Mother moved for a
directed verdict on all grounds for termination. The trial court granted the motion
and entered an order for monitored return of the children to Mother with additional
services to be provided.
The Department challenged the court’s ruling in a number of ways, both in
the trial court and in this Court. The Department filed a direct appeal to challenge
the directed verdict but later voluntarily dismissed its appeal. It then filed a petition
for writ of mandamus, which was denied. In re C.M., No. 01-15-00578-CV, 2015
WL 4572775, at *1 (Tex. App.—Houston [1st Dist.] July 30, 2015, orig.
proceeding). Currently before us is the Department’s second-filed direct appeal of
the directed verdict.
Jurisdiction
Mother asserts that the Department’s appeal is not timely. The directed
verdict was granted in March 2015, and the Department did not file this appeal
5 until more than five months later. Subject-matter jurisdiction is never presumed
and, when it appears jurisdiction might be lacking, we are required to resolve the
issue. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446
(Tex. 1993); see N.Y. Underwriters, Ins. Co. v. Sanchez, 799 S.W.2d 677, 679
(Tex. 1990). We asked the parties to brief whether jurisdiction exists. We set forth
the jurisdictional facts and our basis for concluding that we do have jurisdiction
before turning to the merits of the appeal.
A. Jurisdictional facts
The suit against Mother and her common-law husband to terminate their
parental rights began in 2013. Trial began in March 20152 against Mother. Neither
Father nor his attorney appeared at trial.
The Department presented evidence for three days and argued that
termination of Mother’s parental rights to her two daughters, Cindy and Cheryl,
was warranted under Subsections (D) (dangerous conditions); (E) (dangerous
conduct); (O) (court-order violation); and (P) (controlled-substance use) and under
Section 161.003 (mental or emotional illness). See TEX. FAM. CODE ANN. 2 The Legislature has established a one-year statutory deadline for resolving suits to terminate a parent’s rights. See TEX. FAM. CODE ANN. § 263.401(a) (West Supp. 2015). The one-year deadline for Mother and Father’s case was October 6, 2014. The one-year deadline cannot be extended by mutual agreement. See TEX. FAM. CODE ANN. § 263.402(a). Nonetheless, all parties involved purported to extend the deadline, by agreement, to March 30, 2015. A party who fails to make a timely motion to dismiss for failure to adhere to the one-year deadline waives the right to object on that basis. Id. § 263.402(b).
6 § 161.001(b)(1)(D), (E), (O), & (P); Id. § 161.003. Immediately after the
Department rested, Mother moved for a directed verdict, arguing that the
Department failed to submit evidence to raise a fact issue under any of the five
theories for terminating her parental rights.
The trial court ruled that “the State has failed to prove anything that must be
proved in this kind of case,” including a showing that it is in the children’s best
interest to terminate the parent-child relationship. The court stated that it was
“required by law to direct entry of judgment in favor of [Mother],” announced that
“there will be no termination,” and released the jury.
Under Section 161.205 of the Family Code, “[i]f the court does not order
termination of the parent-child relationship” following a trial on the issue, “the
court shall: (1) deny the petition; or (2) render any order in the best interest of the
child.” TEX. FAM. CODE ANN. § 161.205. The Department requested that the trial
court enter an order naming it the children’s permanent managing conservator and
granting Mother only supervised visitation. Mother requested that she be named
managing conservator or, if not, that a plan be crafted under which she would
continue to receive services from the Department with a goal of family
reunification. Over the Department’s objection, the trial court ordered a Section
263.403 “monitored return of the children” to Mother.
7 Section 263.403 allows a trial court to retain jurisdiction over a termination
suit beyond that allowed under Section 263.401. Section 263.401(a) requires
dismissal of a termination suit on the first Monday after a full year has passed since
the court appointed the Department as temporary managing conservator. TEX. FAM.
CODE ANN. § 263.401(a). There are two exceptions to this deadline found within
Section 263.401. The Subsection (b) exception allows an extension “[u]nless the
court has commenced the trial on the merits . . . .” Id. § 263.401(b). The Subsection
(b-1) exception allows an extension after trial has commenced if the court has
granted a motion for new trial or mistrial or the case has been remanded from an
appellate court. Id. § 263.401(b-1). Neither exception applies here. Section
263.403 offers a third exception. It states that, “[n]otwithstanding Section 263.401,
the court may retain jurisdiction and not dismiss the suit or render a final order as
required by that section if the court renders a temporary order that . . . orders the
department to return the child to the child’s parent . . . and orders the department to
monitor the child’s placement . . . .” Id. § 263.403(a). “If the court renders an order
under this section, the court shall . . . schedule a new date, not later than the 180th
day after the date the temporary order is rendered, for dismissal of the suit unless a
trial on the merits has commenced.” Id. § 263.403(b).
The monitored-return order named the Department as temporary managing
conservator of the children and ordered Mother to attend twice-weekly NA/AA
8 meetings, weekly individual counseling, bi-weekly family counseling, and monthly
drug testing. The two girls were returned to Mother that day. The trial judge
announced a new dismissal date—180 days in the future—stating, “I want to make
sure she’s doing well . . . . If we find there’s good reason to terminate . . . we can.”
Within a week, the Department filed a motion for new trial. It stated that,
“[a]fter a trial on the merits, the Court entered a directed verdict against [the
Department] and ordered the immediate return of the subject children to the
mother, over [the Department]’s objection,” and it requested that the court
“rescind[] its order granting the directed verdict and grant a new trial.” The record
does not contain a written order on the motion.
One week later, on March 27, 2015, the trial court entered a written order
granting the directed verdict: “It is ordered that the Motion is granted, and
[Mother]’s parental rights are not terminated as to the children the subject of this
case.”
Three days later, the Department filed a notice of appeal with this Court. But
the Department voluntarily dismissed its appeal in May, explaining that “the order
being appealed from is not a final order that is subject to appeal.”
On June 22, the Department filed a motion with the trial court to have the
children removed from Mother and returned to foster care based on allegations that
Mother tested positive for prescription drugs without producing a valid
9 prescription for the medication, had become unemployed, and was possibly facing
eviction. The motion included a notice of hearing date, but the record does not
contain a transcript of any hearing on that motion.
The following week, the Department filed a petition for writ of mandamus
with this Court to challenge the directed verdict granted to Mother. The petition
was denied on July 30. See In re Tex. Dep’t of Family and Protective Servs., No.
01-15-00578-CV, 2015 WL 4572775, at *1 (Tex. App.—Houston [1st Dist.] July
30, 2015, orig. proceeding).
On September 1, the trial court entered a written order denying the
Department’s June 22 motion to remove the children.
The following week, on September 10, 2015, the trial court entered an order
dismissing the suit, in its entirety, stating that the suit is “open to dismissal by
operation of law.” The Department filed a notice of appeal five days after the
September 10 dismissal, stating that it is appealing “the directed verdict order of
March 27, 2015, and the subsequent dismissal of this case ordered on September
10, 2015.”
B. This Court has jurisdiction
To summarize the procedural history, in March 2015, the trial court called
the termination suit to trial, heard evidence from the Department regarding its
bases for terminating Mother’s parental rights, granted a directed verdict to Mother
10 after the Department rested, left Father’s parental rights undetermined, entered a
“return and monitor” order, and extended the dismissal date six months into the
future. No party appears to have objected to the trial court failing to dispose of the
suit within the original one-year deadline or within the “agreed,”3 extended
deadline of March 30, 2015. When the trial court extended the deadline another six
months, the Department objected to the decision to return the children to Mother
during the period of extension, but neither it nor Mother objected to the actual
extension.
There is no indication that Father objected to any of these events, moved to
dismiss the termination suit against him, or had his parental rights litigated before
the September 10 order dismissing the suit in its entirety.
Whatever peculiarities may exist with regard to how this case has
progressed, we conclude that they do not affect our jurisdiction to resolve the
appeal. The termination suit was brought against both Mother and Father. His
parental rights were not determined at the trial and remained unresolved until the
trial court dismissed the suit in its entirety on September 10.
“[I]f the record reveals the existence of parties or claims not mentioned in
the order, the order is not final.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206
(Tex. 2001); In re J.D., 304 S.W.3d 522, 524 (Tex. App.—Waco 2009, no pet.).
3 See supra note 2. 11 However, a presumption of finality exists with regard to judgments following a
conventional trial on the merits. Vaughn v. Drennon, 324 S.W.3d 560, 562–63
(Tex. 2010) (discussing Ne. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897–98
(Tex. 1966)); In re M.A.B., No. 01-15-00388-CV, 2015 WL 6081937, at *4 (Tex.
App.—Houston [1st Dist.] Oct. 15, 2015, no pet.) (mem. op.). If there is doubt
about the finality of a post-trial order, we consider the language of the decree and
the record as a whole, “aided on occasion by the conduct of the parties.” Vaughn,
324 S.W.3d at 563 (quoting Lehmann, 39 S.W.3d at 203); see M.O. Dental Lab v.
Rape, 139 S.W.3d 671, 675 (Tex. 2004) (noting that summary judgment against
single defendant can be final judgment if co-defendant was never served and never
appeared and “all parties appear to have treated [the order] as final”).
The order granting Mother’s motion for a directed verdict and declining to
terminate her parental rights does not address Father’s parental rights. It also does
not contain language that would indicate an intention by the trial court to enter a
final order. For example, it does not state that it is a final order. It sets a new
dismissal date in the future. And it does not include the statutorily required
language of a final order on termination. See TEX. FAM. CODE ANN. § 263.405(b).
Thus, the trial court did not demonstrate an intention to enter a final judgment.
To the extent any party evidenced an understanding that the directed verdict
was a final order, it also pleaded an opposite understanding. For example, the
12 Department moved for a new trial and filed a direct appeal but later dismissed the
appeal with a statement that it was not a final judgment. Further, Mother continued
accepting services under the monitored-return order and did not object to the
continuing jurisdiction of the trial court beyond the date the directed verdict was
granted. Father took no actions at all.
After considering the language of the directed verdict, the record as a whole,
and the conduct of the parties, we conclude that the directed verdict was an
interlocutory order that failed to dispose of all parties and issues. The final order in
this suit was not issued until September 10 when the trial court dismissed all
parties and claims. See Lehmann, 39 S.W.3d at 195.
There is no provision for interlocutory appeal of an order denying a
termination petition; we do not have jurisdiction over such interlocutory orders.
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp. 2015) (stating those
interlocutory orders that are appealable). Once a final order issues in a termination
suit, either party may appeal the order. TEX. FAM. CODE ANN. § 109.002(b) (West
2014). The appeal is accelerated. Id. § 109.002(a). Because the appeal is
accelerated, the notice of appeal is due 20 days after the judgment is signed. Id.
§ 109.002; TEX. R. APP. P. 26.1(b); see C. Chambers Enters., Inc. v. 6250
Westpark, LP, 97 S.W.3d 333, 334 n.1 (Tex. App.—Houston [14th Dist.] 2003, no
pet.).
13 The Department filed a notice of appeal within 20 days of the dismissal
order. Therefore, the notice of appeal was timely, and we have jurisdiction to
determine this appeal. We turn, then, to the Department’s contention that the trial
court erred.
Directed Verdict
In a case to terminate parental rights under Section 161.001, the Department
must prove, by clear and convincing evidence, (1) that the parent committed one or
more of the enumerated acts or omissions justifying termination and (2) that
termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001; In re
J.O.A., 283 S.W.3d 336, 344–45 (Tex. 2009). “Only one predicate finding . . . is
necessary to support a judgment of termination when there is also a finding that
termination is in the child’s best interest.” In re A.V., 113 S.W.3d 355, 362 (Tex.
2003). At trial, the Department relied on five grounds for terminating Mother’s
parental rights. On appeal, it abandons the mental-health ground and argues that it
presented legally sufficient evidence to avoid a directed verdict under subsections
(D), (E), (O), and (P) and on the best-interest-of-the-child issue.
We will affirm the trial court’s order unless the Department establishes that
there is legally sufficient evidence of at least one of the four predicate grounds and
that termination is in the children’s best interest.
14 A. Standard of review
A parent’s rights to the “companionship, care, custody, and management” of
his or her children are constitutional interests “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982);
see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). A termination decree is final,
irrevocable, and permanently divests the parent of all legal rights, privileges,
duties, and powers with respect to the parent-child relationship except for the
child’s right to inherit. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly
scrutinize termination proceedings and strictly construe the involuntary termination
statutes in favor of the parent. Id. However, “the rights of natural parents are not
absolute” and “the rights of parenthood are accorded only to those fit to accept the
accompanying responsibilities.” In re A.V., 113 S.W.3d at 361. Recognizing that a
parent may forfeit his or her parental rights by their acts or omissions, the primary
focus of a termination suit is protection of the child’s best interests. Id.
The burden of proof in termination cases is “clear and convincing evidence.”
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002) (citing Santosky, 455 U.S. at 769,
102 S. Ct. at 1403); TEX. FAM. CODE ANN. § 161.001(b). “‘Clear and convincing
evidence’ means the measure or 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 established.” TEX. FAM. CODE ANN. § 101.007. This is an intermediate
15 standard that falls between “preponderance of the evidence” used in ordinary civil
proceedings and “reasonable doubt” used in criminal proceedings. State v.
Addington, 588 S.W.2d 569, 570 (Tex. 1979).
When proof is by clear and convincing evidence, our review must take into
consideration whether the evidence is such that a factfinder could reasonably form
a firm belief or conviction about the truth of the matter on which the State bears
the burden of proof. In re J.F.C., 96 S.W.3d at 266; In re J.R., 319 S.W.3d 773,
775 (Tex. App.—El Paso 2010, no pet.). We disregard all evidence that a
reasonable factfinder could have disbelieved or found to be incredible, but we are
not required to disregard all evidence that does not support the judgment. In re
J.F.C., 96 S.W.3d at 266. If we determine that “no reasonable factfinder could
form a firm belief or conviction that the matter that must be proven is true, then . . .
the evidence is legally insufficient.” Id.
B. Parental acts or omissions justifying termination
The Department asserts that termination is warranted under four subsections.
We begin by considering whether the Department presented legally sufficient
evidence to avoid a directed verdict under Subsection (O).
An individual’s parental rights may be terminated under Subsection (O) if
(1) the Department has been the child’s temporary managing conservator for at
least nine months, (2) the Department took custody of the child as a result of an
16 emergency removal for child abuse or neglect, (3) a court issued an order
establishing the actions necessary for the parent to obtain the return of the child,
and (4) the parent did not comply with the court order. TEX. FAM. CODE ANN.
§ 161.001(b)(1)(O); In re S.M.R., 434 S.W.3d 576, 584 (Tex. 2014).
The trial court ordered Mother to comply with her Department Family
Service Plan, which specified the following tasks:
Maintain monthly contact with caseworker
Submit to and pass random drug testing
Attend, participate, and complete an intensive outpatient treatment program
Attend and participate in NA/AA meetings at least three times per week
Attend and participate in individual counseling to address issues including domestic violence, history of Department involvement, life choices, and parenting
Attend and participate in family counseling
Obtain and maintain gainful employment to provide basic necessities for the child
Maintain safe and stable housing that is sanitary, drug-free, free of safety hazards, and has working utilities
Attend and participate in supervised visitations with the children once per month for two hours
17 The Department asserts that Mother did not successfully complete the outpatient
therapy for substance abuse and did not pass all drug tests. It does not argue that
she failed to complete any of the other tasks listed in the service plan.
Mother responds by highlighting all of the requirements she did successfully
complete and stating that she “participated regularly in counseling while
maintaining a full-time job at a reputable business in the community for
approximately two years while this case was pending,” even if she did not
technically complete the outpatient therapy. Further, she voluntarily enrolled in
and completed a 30-day inpatient therapy stay that the Department did not require.
The Department concedes that Mother completed inpatient therapy but
argues that her failure to successfully complete the required outpatient program
prevented the trial court from granting a directed verdict on this statutory grounds
because “substantial compliance” is a fact question.
“Parents frequently fall short of strict compliance with a family-service
plan’s requirements.” In re S.M.R., 434 S.W.3d at 584. While addressing whether
“imperfect compliance” with a family service plan should result in termination, the
Texas Supreme Court has stated that “whether a parent has done enough under the
family-service plan to defeat termination under subpart (O) is ordinarily a fact
question.” Id.; see In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no
pet.) (noting that Family Code has no provisions regarding partial compliance or
18 excuses for noncompliance and applying factual sufficiency standard to parent’s
challenge to termination of her parental rights following partial compliance).
Mother testified that she began the required outpatient therapy in November
2013. While engaging in outpatient therapy, she asked if she could voluntarily
submit to a more intensive inpatient therapy option.4 She spent 30 days at the ADA
House residential treatment center in Galveston. There she participated in
individual counseling, attended NA/AA meetings, and took classes on relapse
prevention, domestic violence prevention, and parenting. Mother testified that, as a
result of this experience, she obtained a NA/AA sponsor, stopped socializing with
old friends who used drugs, and established relationships with new friends who
were maintaining their sobriety.
After completing inpatient therapy, Mother began outpatient therapy at Gulf
Coast three times per week for four hours each visit. She was pregnant with the
younger of the two girls, Cheryl, at the time. After completing approximately six
weeks of outpatient therapy—with four weeks still remaining to comply with the
Department’s service-plan requirements—her “counselor told [her] to take
maternity leave.” She continued to attend NA/AA meetings three times per week
and individual counseling sessions at the CPS office throughout the remainder of
4 Mother did not specify who she asked to switch from outpatient to inpatient therapy. 19 her pregnancy. She testified that she even attended an NA meeting on the day she
was released from the hospital following Cheryl’s cesarean delivery.
Mother returned to Gulf Coast to continue outpatient therapy a few weeks
after Cheryl’s birth. She began to struggle with maintaining her schedule, though,
because her restaurant shifts did not end until late at night and her therapy sessions
were early in the morning; therefore, she asked to adjust her schedule so that she
could work during the afternoons and attend therapy sessions after work. It took
two weeks for the change to be approved, which caused a delay in attendance.
Shortly after she began her new schedule, she asked to switch back because she
was making less income working afternoon shifts than she had been earning during
the evening shifts. After the change back was approved, she developed pink eye.
Her counselor told her to stop attending until it healed. Mother then missed
additional sessions due to a death in the family. All of this culminated in Gulf
Coast discharging her for excessive absences.
Mother testified that she wanted to continue outpatient therapy but could not
without a new “2054” authorization from her caseworker. She explained that she
was unable to get the authorization she needed because her caseworker stopped
“speaking to” her for several weeks. Even though she was not attending outpatient
therapy, she did continue attending NA/AA meetings several times per week. At
20 the time of trial, she still had not completed her service plan’s outpatient-therapy
requirement.
In addition to the evidence that Mother failed to complete the outpatient
therapy required under her service plan, there was undisputed evidence that she
tested positive for cocaine twice during the first year of her service plan and took
Vicodin without a prescription during the second year.
The Family Code does not contain any provisions for excusing incomplete
service-plan compliance. See In re J.S., 291 S.W.3d at 67. When a parent has
shown “substantial compliance,” it is generally treated as a fact question whether
there was adequate compliance to prevent termination under Subsection (O). See In
re S.M.R., 434 S.W.3d at 584. Consistent with that approach, the Department
argues that Mother’s incomplete compliance raised a fact issue and prevented the
trial court from entering a directed verdict on the Department’s Subsection (O)
basis for termination.
The factfinder’s role is to resolve disputed issues. See In re C.H., 89 S.W.3d
17, 26 (Tex. 2002). Had the issue been submitted to the jury, it would have
weighed the evidence of noncompliance with two provisions of the service plan
against the evidence of compliance with all seven of the other service-plan
requirements, as well as Mother’s enrollment in and completion of voluntary
inpatient therapy. Because the trial court’s ruling prevented the jury from weighing
21 this evidence to determine whether Mother’s partial noncompliance warranted
termination of her parental rights under Subsection (O), we conclude that the trial
court’s ruling on this issue was erroneous. The evidence of two failed drug tests,
likewise, should have prevented a directed verdict under Subsection (P) which
permits termination for use of controlled substances.
Having concluded that the trial court erred by granting a directed verdict on
at least one of the bases for termination, the trial court’s order is subject to reversal
if the trial court also erred by granting a directed verdict on the best-interest factor.
Accordingly, we will consider next the best-interest factor instead of addressing
each remaining basis for termination.
C. Best interest of the children
In addition to a predicate violation, the Department must establish by clear
and convincing evidence that termination is in the children’s best interest. TEX.
FAM. CODE ANN. § 161.001. There is a strong presumption that the child’s best
interest will be served by preserving the parent-child relationship. In re J.F.C., 96
S.W.3d at 294; see TEX. FAM. CODE ANN. § 153.131(b).
Because of the strong presumption that maintaining the parent-child
relationship is in the child’s best interest and the due-process implications of
terminating a parent’s rights without clear and convincing evidence that
termination is in the children’s best interest, “the best interest standard does not
22 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.); see In re E.N.C., 384 S.W.3d 796, 809 (Tex. 2012).
The factfinder may consider a number of factors to determine the child’s
best interest, including the child’s desires, the child’s present and future physical
and emotional needs, the present and future emotional and physical danger to the
child, the parental abilities of the people seeking custody, programs available to
assist those people in promoting the child’s best interest, plans for the child by
those people or by the agency seeking custody, the parent’s acts or omissions that
may indicate that 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).
In some cases, undisputed evidence of only one factor may be sufficient to
support a finding that termination is in the best interest of the child; in other cases,
there could be “more complex facts in which paltry evidence relevant to each
consideration mentioned in Holley would not suffice” to support termination. In re
C.H., 89 S.W.3d at 27. Our “best interest” analysis is not limited to these Holley
factors; other factors may be considered. Holley, 544 S.W.2d at 371; In re C.H., 89
S.W.3d at 27.
23 The termination trial focused on Mother’s failure to complete outpatient
therapy, any excuses that might exist for that failure, and whether Mother either
already had relapsed or might in the future. There was evidence that Mother tested
positive for cocaine and marijuana when Cindy was first removed from the home
in January 2013. Later, in May 2013, while receiving services, she tested positive
for cocaine. In July, she tested positive for cocaine again. She had negative drug
test results for more than a year after that. Then, in December 2014, she did not
submit to a required drug test and, instead, revealed that she had taken Vicodin
without a valid prescription. She testified that she took a single dose to treat back
pain. While there was no contrary evidence, a jury conceivably might not have
found her explanation credible. See Rosenblatt v. Freedom Life Ins. Co. of Am.,
240 S.W.3d 315, 319 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (stating
general rule that factfinder may believe all, part, or none of witness’s testimony but
cannot ignore undisputed testimony “that is clear, positive, direct, otherwise
credible, free from contradictions and inconsistencies, and could have been readily
controverted.” (quoting City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex.
2005))). She did not fail another drug test after the Vicodin incident.
A Department caseworker testified that the permanency goal changed from
family reunification to parental termination in September 2014 due to Mother’s
noncompliance with her service plan, specifically the uncompleted outpatient
24 therapy. The caseworker testified that she agreed with the change. When asked to
explain the basis for her recommendation, she noted the “admission to using
Vicodin” once in December 2014 and the “unsuccessful discharge” from the
outpatient program at Gulf Coast treatment center. The caseworker was concerned
that the children would “have to worry about coming into CPS care because of
relapses” if they were returned to Mother.
Mother’s aunt also testified. When Cindy was removed from Mother’s care,
her aunt agreed to a placement in her home. The aunt cared for Cindy for eleven
months but returned her to the Department’s care when the aunt developed health
issues. The aunt testified that she and Mother had a “strained relationship” for
“over a decade” because of Mother’s past “drug abuse, instability, and ongoing
investigations with CPS.”5 She stated that she did not approve of Mother’s current
behavior because she believed Mother was living with a man and should be
focused on “trying to get the children back,” not on “a relationship with a man.”
The aunt testified that she observed some of Mother’s visits with her girls.
She described the children as “happy” during the visits and agreed that the visits
were not “unhealthy” for the children. Yet she also testified that she was invited to
the foster mother’s home, observed her interactions with the girls, and felt that “in
5 Mother was the subject of earlier CPS investigations concerning three children she had before Cindy and Cheryl. She voluntarily relinquished custody of two of the children in 2005 and the third in 2007. 25 comparison” there was “improved disposition in [the girls’] happiness and . . .
being content and happy” with the foster mother. Cf. In re W.C., 98 S.W.3d at 766
(“Although [parental] behavior may reasonably suggest that a child would be better
off with a new family, the best interest standard does not permit termination
merely because a child might be better off living elsewhere.”).
The aunt was asked whether she would support termination of Mother’s
parental rights even if she successfully completed all that the Department asked of
her. She responded: “As much as it hurts, it’s not an easy thing for me to say . . .
just the history—and I’m talking a decade—I would be in favor of the children
being adopted.”
Another witness who testified that she supported termination was the CASA
representative who took over the case after the Department changed its goal from
reunification to termination. She testified that it was her job to evaluate the
children’s best interests. She observed only one visit between Mother and the girls.
The visit went well; everyone was excited to see each other. Salinas acknowledged
that Mother made progress under her service plan. Nonetheless, she opined that
termination would be in the children’s best interest, giving the following
explanation:
There’s the uncertainty of the—the use that she’s had and just her trustfulness and in the long term, looking at the girls’ future, what that might look like worries me.
26 She noted that the children had been calling their foster mother “mom” and
referred to Mother by her first name. She also admitted to telling Mother during a
home visit that “maybe you’ll get married down the line and maybe you’ll have
more children.”
There was no evidence that Mother’s relationship with her two daughters
was lacking. She was described as a loving mother who interacted appropriately
and was motivated to have her children returned to her care. Her visits with her
children went “well” and her interactions were described as “appropriate.” Mother
paid attention to the children, appropriately redirected them when necessary,
brought them food and toys, and played with them. She also made great strides to
improve her living situation by securing stable housing and steady employment to
provide for her children. Her therapist’s correspondence with the Department, in
which she confirmed her recommendation of family reunification in November
2014, included the following statements:
Mother has impressed me. . . . She has demonstrated a strength that I honestly doubted she had . . . [and has] won my support. I support reunification when she can find stable housing but I believe she also needs a parent mentor and positive peer support for her to maintain this strength and independence overtime. She has potential. . . . She is focused and determined to deal with her past failures . . . and caring for her kids. Engagement heavily in [NA] meetings, a sponsor, church family, etc. could be transforming for this young mother. . . .
In response to the caseworker’s statement that she had “concerns” about the
reunification goal, the therapist wrote:
27 I have had more sessions with [Mother] than any client in my CPS contracted history. . . . She was a stellar client . . . [and was] determined and motivated. Becky (supervisor) and the previous caseworker were in support of reunification as the sole goal. I guess I don’t understand what has changed . . . that justifies the change in goal.”
The Department did not present evidence on every Holley factor. It failed to
offer clear and convincing evidence that termination was in the children’s best
interest with regard to the factors that consider the children’s desires, the children’s
current emotional and physical needs, parental abilities, programs available, or
stability of the home. See Holley, 544 S.W.2d at 371–72.
Nonetheless, we conclude that the Department presented sufficient evidence
to meet the threshold necessary to avoid a directed verdict with regard to the
factors that consider the parent’s acts or omissions and future emotional danger to
the children. It was uncontroverted that Mother had a long history of drug use. Her
counselor testified that opiate dependency has a high rate of recidivism. The
Department assigned Mother specific tasks that she would need to complete to
improve her changes of long-term sobriety and to be eligible for the return of her
children, including successful drug testing and completed outpatient therapy.
Mother failed two drug tests, illegally used Vicodin without a prescription, and
failed to complete the required outpatient therapy.
A factfinder reasonably could have concluded that this evidence was
sufficient to produce a firm belief or conviction that Mother was unlikely to
28 maintain her sobriety, that the great strides she had made over the course of the
Department intervention might unravel, and that the best interest of the children
would be to sever the parent-child relationship. Likewise, we acknowledge that a
factfinder reasonably could have concluded the opposite: that the evidence was not
sufficient to produce a firm belief or conviction that termination was in the
children’s best interest because the children had a strong bond with their mother,
her parenting skills were not criticized by any witness, and she showed a strong
determination to end her drug use as well as evidence of some success at her
endeavor.
Because a factfinder could have reasonably reached either resolution of the
issue, we conclude that the trial court erred by granting a directed verdict on the
best-interest factor. Having concluded that the trial court erred by granting a
directed verdict on termination under Subsection (O) and the best-interest factor,
we reverse the court’s March 2015 order.
Conclusion
We reverse the trial court’s order granting a directed verdict and remand the
case for further proceedings, including an evaluation of temporary conservatorship
and placement.
Harvey Brown Justice
Panel consists of Justices Bland, Brown, and Lloyd.