Fourth Court of Appeals San Antonio, Texas DISSENTING OPINION No. 04-17-00666-CV
IN THE INTEREST OF R.M.P. and J.A.P., Jr., Children
From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-00286 Honorable John D. Gabriel, Jr., Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice
Delivered and Filed: June 13, 2018
Because I believe the Department failed to meet its burden of proving by clear and
convincing evidence that termination of Appellant’s parental rights was in the best interest of the
children, I respectfully dissent.
EVIDENCE AT TRIAL
I believe a thorough review of the evidence presented at trial is necessary to analyze the
best interest issue and to determine whether the Department met its requisite burden.
Removing Caseworker
Bianca Martinez, an investigator for the Department, testified that on February 4, 2016,
she investigated an allegation that the children did not have appropriate supervision. She testified Dissenting Opinion 04-17-00666-CV
Appellant, their father, had been arrested 1 at his home at about 3:45 p.m. and there was no other
caregiver at the house to wait for the children to get off the school bus. Martinez spoke to
Appellant at the Bexar County Central Magistrate’s Office and asked him if there were other
relatives who could help with the children. Appellant did not know the whereabouts of his ex-
wife and the mother of his children, Roseanna. He told Martinez Roseanna was a drug addict and
that she was not involved with the children. Appellant told Martinez the children suffered from
seizures and required medication. He gave Martinez the keys to his house so that the medication
could be obtained. When Martinez arrived at the home, it appeared to have been broken into.
Roseanna was in the house. She refused to speak to Martinez and appeared to be intoxicated and
was very aggressive. Appellant was released from custody the same day and immediately picked
up the children. He agreed to not take the children home since Roseanna was there. The next day,
Martinez returned to the house to meet with Appellant. She observed Roseanna in front of the
house, yelling and screaming and throwing items at Appellant and Ruth. Appellant was
cooperative and answered Martinez’s questions. Appellant reiterated that Roseanna did not live
in the home, but the children told Martinez that Roseanna did live there and some of her belongings
were in the home. Martinez spoke to Ruth individually. Ruth told Martinez that her father tried
to touch her and according to Martinez she “made a statement involving rape.” Ruth also said she
had been touched inappropriately by a neighbor. At that time, Martinez obtained “exigent
removal” of the children due to Ruth’s allegation against her father.
Martinez testified the Department has been involved with the family since 2008, and twice
offered family-based services, but did not find cause to remove the children.
1 Appellant testified the charge was dismissed and there is nothing in the record to show he has any charges pending. Appellant further stated he was “falsely arrested” because the authorities were looking for another man by the same name. The Department offered no evidence regarding Appellant’s arrest or criminal record, if any.
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Father
Appellant testified he has taken care of Ruth and John by himself since they were born.
Ruth started having “light seizures” when she was three or four years old. John also has “light
seizures” and has been diagnosed as autistic. Appellant has always taken the children to doctor’s
appointments and followed the doctors’ directions regarding administration of medication. Ruth
is in special education classes; Appellant was not sure why the school put her in special education
classes. Appellant raised five other children by himself; they are now grown. He denied using
drugs or alcohol. He stated that Roseanna has not been very involved with the family since their
divorce. She sees the kids once or twice a year, and Appellant does not allow her to visit if she is
“behaving bad.” He admitted that he allowed Roseanna to stay at his house one week after she
had surgery because she did not have anywhere else to go. He occasionally gives her a ride when
she needs one. While the children were in the Department’s care, he once took Roseanna on a
visit with John. Appellant testified the Department did not inform him that the children were not
permitted to have contact with Roseanna while in the Department’s care. 2
On three to four occasions, Ruth claimed she was assaulted by other men. Each time,
Appellant took her to the hospital to be examined. No physical evidence of abuse was detected.
In 2008, when Ruth was about five years old, she was taken from Appellant’s fenced-in yard by a
“guy” or a neighbor in a van while Appellant was at the store and Roseanna was watching the
children. Appellant called the police and Ruth could not be found for two or three hours. In 2009,
the Department investigated an allegation that Appellant left Ruth unsupervised for an extended
period of time. In 2015, Appellant took Ruth to the hospital because he was informed that someone
had assaulted Ruth. Again, no physical evidence of abuse was revealed. Appellant was unaware
2 The record is void of evidence that Appellant was ordered to avoid contact with the children’s mother.
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of the medical diagnoses made while the children were in the Department’s care; he stated he had
not spoken with the children’s current physicians.
Appellant stated he believed Ruth falsely accused him of sexual abuse to get back at him
for trying to discipline her. He explained that he had threatened to call the Department when Ruth
was not behaving and that Ruth told Appellant that if he did, she would say that he had abused her.
Appellant testified he is not under a criminal investigation and has not been contacted by law
enforcement regarding the allegations made by Ruth.
Appellant was concerned about the children’s placements by the Department after they
were removed from his care. According to Appellant, Ruth is not in good health, her hair is messy
and she has broken teeth. John gained a lot of weight while in the Department’s care, which made
it hard for him to breathe, and also has broken teeth. Appellant did not believe the residential
treatment center was a good environment for a child.
Appellant stated he is in good health and does not use drugs; he last drank alcohol 40 years
ago. He is retired and receives a pension. The children each receive approximately $1,000 per
month from Appellant’s Social Security. Appellant stated he did not need that money for living
expenses because he received his own check. After the children were removed, Appellant was
forced to move to a trailer home because he could no longer afford rent for the house where he and
the children were living. If the children are returned to him, he plans to move to Bakersfield,
California where he has numerous cousins. He planned to stay at his cousin’s house until he could
find a house to rent.
Child’s Counselor
LaDonna Harris, Ruth’s counselor, testified she sees Ruth weekly, and sometimes twice a
week, for counseling. Harris diagnosed Ruth with post-traumatic stress disorder, including
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depression and anxiety; depressive disorder with psychotic features; intellectual disability; and
bipolar disorder. Ruth takes medication for these disorders that was prescribed by her psychiatrist
but is still having problems. Harris explained that Ruth has the maturity of a seven-year-old.
Harris was not certain, but she believed Ruth had an IQ of 60. Ruth does not understand that
strangers can be dangerous and often engages in attention-seeking behavior. Because of this, Ruth
needs to be constantly supervised.
Ruth has only had one visit with her father since she was removed from the home. She has
been able to talk to her father on the phone. Harris noticed that after a phone call with her father,
Ruth would start urinating on herself. When Harris asked Ruth why that happened, she said she
was nervous, or just forgot to go to the restroom. Ruth also told Harris “that she was scared
because she had said so many bad things that her dad did that wasn’t true.” Harris noted that Ruth
also urinates on herself at other times not related to phone calls with her father. But Harris clarified
that the first time she noticed the urination was after Ruth received a phone call from her father.
When asked if Ruth suffers seizures, Harris stated, “Ruth tells me that she fakes the seizures
for attention.” Harris has asked Ruth what her fake seizures look like, and Ruth will demonstrate
on the spot, “fluttering her eyes and dazing off.” “And she’ll say, ‘Just like this, Ms. Harris.’”
Harris was then asked, “has [Ruth] indicated that she has faked or made up or lied about anything
else?” Harris answered, “she said that she lied about her dad touching her. And she said it wasn’t
true. She was mad at him.” Harris stated that in her opinion, Ruth “has not experienced sexual
abuse.”
Harris opined that Ruth needs to have more visits with her father. Ruth told Harris she
wants to go home with her brother. In Harris’s opinion, Ruth is not ready to go home. Harris
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could not answer whether it was in Ruth’s best interest to have her father’s parental rights
terminated because “I don’t know anything about the dad.”
Father’s Counselor
Victoria Caylor, a mental health counselor, testified that Appellant was referred to her for
individual therapy. Caylor is a Licensed Sex Offender Treatment Provider who offers counseling
to both victims and sex offenders. Caylor stated Appellant denied assaulting his daughter and said
that Ruth fabricated the story because she was mad at him because he would not allow her to see
her mother. Caylor discharged Appellant after nine sessions because she did not think he was
making any progress because he was in constant denial of the sexual assault allegation. Caylor
could not answer whether Appellant would be able to successfully and efficiently parent his
children because she had never seen him with his children.
Department Caseworker
There was only one caseworker, Jennifer Munoz, assigned to the family for the entire 18-
month pendency of the case. Munoz testified that Ruth is currently 13 years old and placed in a
foster home in Killeen, Texas. The Department had only allowed Ruth to visit Appellant once
during the 18 months prior to trial. John is nine years old and is currently living in a residential
treatment center in Spring, Texas. She explained that a residential treatment center is a facility
where children with special needs who are on psychotropic medications are sent. Since his
removal, John has been in five placements in five cities, including a psychiatric hospital. John
showed a lot of aggression, including hitting other students and destroying property. John was
taking medication for seizures, ADHD, and autism at the time of removal. He is now on more
medication and has recently shown vast improvement in his behavior. At the time John was
brought into care, he was having trouble in school, including hitting others and throwing items.
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He was hospitalized at Clarity [Child] Guidance Center in 2014. Munoz stated that John would
react aggressively when told, “no.” Ruth’s issues in school were related to her “pseudo seizures”
and trouble focusing and concentrating. The school believed Ruth would benefit from counseling,
but to Munoz’s knowledge, Appellant did not engage a counselor for Ruth.
Appellant visited his son monthly, often traveling hours to see John for a visit lasting only
30 minutes or one hour. Appellant only missed one visit, when he experienced car trouble. Munoz
stated the visits between Appellant and his son went well and there were no concerns. The
caseworker testified that the Department’s plan was for both Ruth and John to be adopted by Ruth’s
current foster mother. The current placement would like to keep the children long term but had
“not indicated a willingness to adopt the children.” John had not lived with a family since removal,
and it was unknown how he would adjust once placed in the foster home with Ruth. The
Department initially attempted to place John in the Killeen foster home, but he was removed after
one day because of his aggressive behavior.
While in the Department’s care, the children experienced health problems. John gained a
lot of weight because he was overmedicated and the Department did not reassess his medical plan
until ordered to do so by the trial court. 3 Ruth exhibited self-harming behaviors such as cutting
herself. She also picked her nails and toenails to the point of bleeding. While in the Department’s
care, Ruth made an outcry of sexual abuse against a boy at the YMCA, but it was “ruled out.”
Both children would urinate on themselves at random times.
A family service plan was created for Appellant. The goals of the service plan were for
Appellant to learn to use appropriate parenting practices and to meet the special needs of his
children. He was also to demonstrate the ability to provide the children a home free of abuse and
3 The Honorable Associate Judge Richard Garcia, presiding judge of Bexar County Children’s Court, oversaw the case and ordered the medical review.
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neglect and show future concern for their safety. According to Munoz, the Department did not ask
Appellant to admit to the allegations made by Ruth but expected him to “process that information.”
Munoz opined that although Appellant did complete all services, he did not meet the goal of
“process[ing] that information” and thus the Department alleged Appellant did not complete his
family service plan. He was unsuccessfully discharged from individual counseling by three
therapists, including Caylor. He attended all required therapy sessions but continued to deny the
allegations against him and was angry with the Department for taking his children away. He also
successfully completed two parenting courses, including a course on children with mental health
needs, and submitted to random drug tests, all of which were negative. Munoz stated Appellant
“was not able to verbalize what he learned” in the parenting courses. The caseworker had not
visited Appellant’s home since removal. She tried to schedule one visit but the date was not
amenable to her. Munoz acknowledged that Appellant was present at every court hearing.
Munoz believed Appellant’s parental rights should be terminated because, in her opinion,
he has no knowledge of the mental health needs of the children; he lacks the knowledge of how to
properly care for the children; he has not demonstrated that he is able to meet the children’s special
needs; and he was discharged from three different professional counselors because he did not want
to address the reason why the children were removed. Munoz stated, “I believe it would pose a
threat to [Ruth] and [John] if they were placed with [Appellant.]” She stated there were several
instances in the past where Appellant was not supervising Ruth, which caused Ruth to engage in
“these alleged sexual behaviors with other individuals.” She continued, “there’s no doubt that
[Appellant] does love his children and the children love him, but it’s not in their best interest to be
placed with [Appellant].” When asked if her opinion had “something to do with” Appellant’s age
of 77, Munoz answered, “that can play a factor.”
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On cross-examination, Munoz elaborated on her opinion that Appellant’s parental rights
should be terminated. She agreed that inadequate supervision had been an ongoing issue with the
family since 2008 and that Appellant believes his children are normal and do not require constant
supervision. Munoz believed that Roseanna was a danger to the children and that Appellant
allowed Roseanna to have contact with the children during the pendency of the case. 4 She stated
that in a few instances Roseanna was participating in the phone contact between Appellant and
Ruth. She did not provide details, but merely stated “those phone contacts were very
inappropriate.” Roseanna also accompanied Appellant on a visit to John in Spring, Texas. Munoz
believed Appellant did not understand that the children should not be around Roseanna. She did
not believe Appellant had demonstrated that he could protect the children from future abuse or
neglect. She agreed that Appellant lacks a supportive network. The Department was unable to
find any of Appellant’s relatives who could help with the children. Munoz was surprised by
Appellant’s testimony that he planned to take the children to California if they were returned to
him. Appellant had never provided any information on relatives in California to the Department.
Munoz agreed that Appellant did not understand the nature of the conduct that placed his children
in harm’s way and had not met the goals of his service plan.
When asked about the children’s desires, Munoz testified that John told her he wanted to
live with his sister and that his visits with his father go well. Ruth went back and forth as to
whether she wanted to visit with her father. Ruth told Munoz she wants to be with her brother.
Ruth said she loves to live with her foster mom, but Munoz also agreed Ruth was easily influenced
by “whoever’s paying attention to her at that time period.” Munoz did not believe Ruth had the
4 Appellant’s service plan does not include a provision prohibiting the children to have contact with Roseanna.
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capacity to decide what was in her best interest. Munoz agreed that the children’s mother was not
currently a danger to the children since she was incarcerated and in failing health.
Children’s Pediatrician Prior to Removal
Dr. Rebecca Houston is a pediatrician who saw each child on seven to eight occasions
between March 2014 and December 2015 prior to their removal by the Department. Dr. Houston
testified she never felt the need to contact the Department regarding the children’s welfare. The
children were well-kept and appeared to be sanitary. Dr. Houston treated John for significant
behavioral issues related to his autism and ADHD; she also addressed healthy eating due to his
obesity. She prescribed a medication for John’s autism and consulted with a neurologist on Ruth’s
seizures. Dr. Houston also consulted with a psychologist regarding Ruth’s pseudo-seizure
disorder. Dr. Houston believed Appellant was following her recommendations regarding
administration of the medication. When Dr. Houston recommended speech therapy for John,
Appellant was initially hesitant, but did decide to proceed with the therapy. Appellant regularly
maintained the children’s doctor visits and accompanied them to every visit. Dr. Houston agreed
that she would describe the children’s relationship with their father as caring and loving; she was
never concerned about their interactions. It appeared to Dr. Houston that the children’s medical
needs were being taken care of by Appellant. She believed Appellant recognized his children had
special needs and that he was addressing those needs as best he could.
Children’s Neurologist Prior to Removal
Dr. August Saravia is a pediatric neurologist. He testified that he saw the children on
almost 40 occasions prior to their removal by the Department. He first saw Ruth for seizures in
July 2007, when she was four years old. In 2014, she was also diagnosed with pseudo-seizures.
Dr. Saravia prescribed multiple seizure medications to Ruth. Ruth was accompanied by her father
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to the visits. Dr. Saravia never saw anything during the visits that would have caused him to call
the Department. Appellant did not miss any appointments with Dr. Saravia and followed his
treatment recommendations. He believed Appellant was aware of and dealing with Ruth’s medical
needs; he was unable to say whether Appellant was aware that Ruth had “special needs.” Dr.
Saravia also treated John in 2015 and prescribed medication which can have behavioral side
effects, including aggression.
ANALYSIS
A trial court may order termination of the parent-child relationship only if the court finds
by clear and convincing evidence one or more statutory ground for termination and that
termination is in the children’s best interest. TEX. FAM. CODE ANN. §§ 161.001(b)(1), (2);
161.206(a) (West Supp. 2017). There is a strong presumption that keeping a child with a natural
parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re G.M., 596
S.W.2d 846, 846-47 (Tex. 1980). “Termination of parental rights is serious business. The law
requires clear and convincing evidence to sever the relationship between a parent and child and
due process demands that the State document a sufficient measure of evidence in the record to
support that outcome.” In re J.E.M.M, 532 S.W.3d 874, 891 (Tex. App.—Houston [14th Dist.]
2017, no pet.).
In reviewing the legal sufficiency of the evidence to support the termination of parental
rights, the court must “look at all the evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have formed a firm belief or conviction that its
finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re J.P.B., 180 S.W.3d 570,
573 (Tex. 2005). “[A] reviewing court must assume that the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so.” In re J.F.C., 96 S.W.3d at 266. “A
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corollary to this requirement is that a court should disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible.” Id.
In determining whether the evidence in this case would permit a reasonable factfinder to
form a firm belief or conviction that termination of Appellant’s parental rights was in the children’s
best interest, we consider the nonexclusive Holley factors. These factors include: (1) the child’s
desires; (2) the child’s present and future emotional and physical needs; (3) any present or future
emotional and physical danger to the child; (4) the parental abilities of the individuals seeking
custody; (5) the programs available to assist the individuals seeking custody to promote the child’s
best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the
stability of the home or proposed placement; (8) the parent’s acts or omissions which may indicate
that the existing parent-child relationship is improper; and (9) any excuse for the parent’s acts or
omissions. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re E.C.R., 402 S.W.3d
239, 249 n.9 (Tex. 2013). The Department was not required to prove all of these factors, and the
absence of evidence about some factors would not preclude the factfinder from reasonably forming
a strong conviction that termination is in the children’s best interest, particularly if the evidence
was undisputed that the parental relationship endangered the safety of the child. See In re C.H.,
89 S.W.3d 17, 27 (Tex. 2002). “Some cases, however, will present complex facts in which ‘paltry
evidence’ relevant to each Holley factor would not suffice to uphold a factfinding that termination
is required.” In re B.D.A., --- S.W.3d ---, No. 01-17-00065-CV, 2018 WL 761313, at *14 (Tex.
App.—Houston [1st Dist.] Feb. 8, 2018, no pet. h.) (Massengale, J., dissenting on reh’g) (citing In
re C.H., 89 S.W.3d at 27).
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Desires of the Children
At the time of trial, Ruth was thirteen years old and John was nine. Neither child testified,
and according to the Department and the ad litem, Ruth was not competent to testify. The evidence
showed the children wanted to be with each other at all costs, whether that meant returning to
Appellant or staying in the Killeen foster home. But the Department could not guarantee that both
children would be adopted by the Killeen foster parent. The caseworker stated the children loved
their father and Ruth’s counselor stated she loved her father and needed family. I would conclude
this factor is neutral, weighing neither in favor of nor against termination of parental rights.
Children’s present and future emotional and physical needs and any present or future emotional and physical dangers
It was undisputed that both children suffer from physical and psychological disorders.
Both children have seizures; Ruth has a low IQ and many psychological conditions; John has
autism and behavioral challenges. Although the Department argued Appellant failed to recognize
that his children had “special needs,” two of the children’s physicians testified that Appellant
sought medical treatment for the children and followed doctors’ orders as far as medicating the
children and attending appointments for a significant period of time prior to removal. The
caseworker testified that on the day the children were removed, Appellant alerted the Department
his children needed their medications and allowed them to enter his house to retrieve the
medications.
With regard to present and future emotional and physical danger to the children, the jury
heard evidence that Appellant once left the children with Roseanna and during that time, Ruth was
temporarily abducted. In addition, even though she later recanted, the jury was also presented with
evidence that Ruth had alleged Appellant assaulted her. Ruth’s counselor did not believe Ruth
had been sexually assaulted, and first noticed Ruth would urinate on herself after a phone call from
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her father, although she also noted Ruth did so at other unrelated times. According to Ruth, she
did so because she was nervous or just forgot to go to the restroom. John also urinated on himself
but there was also no evidence as to the cause. The Department presented evidence that it had
been involved with the family since 2008 due to concerns that Appellant did not know how to
“manage” his children, but the only allegation termed “reason to believe” was that Appellant’s
home was unsanitary. Nonetheless, the Department presented no evidence at trial about the
condition of Appellant’s home and no caseworker visited the home during the pendency of the
case. The Department generally alluded to Appellant being unable to handle John’s outbursts but
did not elaborate further. Neither Ruth’s counselor nor Appellant’s counselors offered evidence
of best interest since no one observed the children with Appellant. It was undisputed that Appellant
had sought treatment for the children’s physical and mental health needs since at least July 2007
when Ruth was first treated as a four year old. Given the paucity of evidence demonstrating that
conduct by Appellant would endanger the children, I would conclude this factor weighs against
termination of parental rights.
Parental abilities of the individuals seeking custody
The Department hoped that both children would be adopted by Ruth’s foster mother but
admitted that the foster mother had not yet agreed to adopt either child. Ruth’s foster mother did
not testify and there was no testimony regarding her parenting abilities. Appellant testified that he
had cared for the children since they were infants and would continue to do so. He completed
parenting courses, including a course for special needs children. Evidence was presented from
Drs. Houston and Saravia that Appellant had and was able to take care of the children’s medical
and psychological needs and that there was no cause for concern regarding Appellant’s relationship
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with his children. By all accounts, Appellant’s visits with John were proper. This factor also
weighs against termination of parental rights.
Programs available to assist the individuals seeking custody to promote the child’s best interest
It is undisputed that Appellant completed the requirements of his service plan, but the
Department claimed he was just going through the motions and did not “verbalize what he learned”
in the parenting courses and did not “process” the reasons for the Department’s involvement in
individual therapy. Appellant testified that he refused to admit he assaulted Ruth. Ruth’s therapist
testified that more visits between Ruth and her father would have been beneficial; however, the
Department did not allow for that to occur. Given the caseworker’s conclusory testimony, I believe
this factor also weighs against termination of parental rights.
Plans for children by those seeking custody / Stability of home or proposed placement
Again, the Department hoped that both children would be adopted by Ruth’s foster mother
but admitted that the foster mother had not yet agreed to adopt either child. John had been housed
in a residential treatment center since he was removed from Appellant’s care, and there was no
testimony regarding the likelihood of him being adopted. Appellant testified he planned to take
the children to California where he has relatives to help him. Given the lack of evidence
demonstrating the children’s interests will be better served outside the family home, this factor
Summation
Reviewing the record in the light most favorable to the jury’s findings, I would conclude
the Department failed to meet its burden to establish by clear and convincing evidence that
termination of Appellant’s parental rights is in the children’s best interest. The record contains
undisputed evidence that Appellant completed his service plan, was drug-free, and maintained
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contact with the children, even traveling for hours to visit John. He visited Ruth on the one
occasion allowed him by the Department. Although the Department claimed Appellant’s failure
to “process” the reasons for the removal of his children meant that he did not meet the goals of his
service plan, I do not believe that such conclusory testimony from the caseworker amounts to clear
and convincing evidence of failure to complete a service plan. See In re A.H., 414 S.W.3d 802,
807 (Tex. App.—San Antonio 2013, no pet.) (“conclusory testimony, such as the caseworker’s,
even if uncontradicted does not amount to more than a scintilla of evidence”).
The majority states that Appellant “failed to demonstrate he understood the children’s
special needs and was not able to verbalize what he learned in parenting classes.” It was not,
however, Appellant’s burden to prove anything at trial; to the contrary, the burden remained with
the Department to show by clear and convincing evidence that placing the children with Appellant
would harm or endanger them. See In re E.N.C., 384 S.W.3d at 808 (a lack of evidence
contradicting a finding does not constitute evidence supporting the finding).
The evidence at trial did not conclusively establish actual emotional or physical danger to
the children, or that the parent-child relationship was improper. In fact, because the Department
did not allow Ruth to have but one visit with Appellant during the 18 months she was in the
Department’s care, there was little evidence about Ruth’s relationship with or interactions with her
father. Ruth’s counselor could not say whether it was in her best interest to terminate Appellant’s
parental rights because she had not been able to see Ruth interact with her father. The counselor
recommended that Ruth be permitted to have more visits with her father, but it does not appear
that the Department made reasonable efforts to facilitate the parent-child relationship. 5 Again, at
no time did the Department visit Appellant’s home after the children were removed.
5 There is a strong presumption that a child’s best interests are served by maintaining the parent-child relationship. See In re G.M., 596 S.W.2d 846, 846-47 (Tex. 1980).
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In addition, it appears that the Department held Appellant responsible for the shortcomings
of his ex-wife. Almost all the exhibits proffered by the Department and admitted at trial pertained
to Roseanna’s criminal history. In addition, many of the Department’s prior interventions with the
family were precipitated by Roseanna’s actions or inactions; the other interventions were ruled out
due to cooperation by Appellant. In May 2008, Ruth was wandering around unsupervised and was
picked up by two teenagers when “[t]he mother was supposed to [be] watching the child.” In June
2008, family-based services were offered for two months but the case was closed because
Appellant “was able to provide his children with their medical and basic needs.” In 2009, a report
was made regarding neglectful supervision of Ruth, but the case was ruled out and closed. A
January 2014 complaint regarding Ruth’s acting out and seizure disorder was ruled out after Dr.
Saravia confirmed that Appellant made the effort to secure a psychologist for Ruth; Dr. Saravia
also confirmed there were no concerns and that Appellant has shown up to all appointments and
gave Ruth her medication regularly. A March 2014 complaint regarding John was ruled out after
it was recognized that John suffers from a behavior issue linked to cognitive processing. Appellant
let John “ride out” his tantrums and did not use physical discipline. A 2015 complaint regarding
unsanitary living conditions in the home was substantiated. The Department repeatedly criticized
Appellant for allowing Roseanna to participate in telephone conversations with the children or for
allowing her to accompany him on a visit with John. Appellant’s service plan, however, contains
no provision prohibiting Roseanna to have contact with the children. In any event, the
Department’s fears of Roseanna spending time with the children are unfounded because she is
incarcerated and terminally ill. In sum, it appears that Appellant is parenting two children with a
host of health and behavioral problems. This would be a challenging task for any parent, let alone
a single parent.
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Most troubling of all is that the Department did not establish that it has a permanency plan
in place for the children. “It was the Department’s burden to prove by clear-and-convincing
evidence that termination of the father’s rights was in the children’s best interests, but it ‘offered
no evidence regarding its plan for placement of the children,’ suggesting ‘it is as likely as not that
the children will remain in long-term foster care or even be separated’ if their father’s rights are
terminated.” In re B.D.A., 2018 WL 761313, at *14 (Massengale, J., dissenting on reh’g) (quoting
Horvatich v. Tex. Dep’t of Protective & Regulatory Srvcs., 78 S.W.3d 594, 602 (Tex. App.—
Austin 2002, no pet.)); see also In re A.J.L., No. 04-14-00013-CV, 2014 WL 4723129, at *1-5
(Tex. App.—San Antonio Sept. 24, 2014, no pet.) (mem. op.) (reversing on best interest where
Department admitted it had no definitive placement plans for the children); In re D.M., No. 04-14-
00858-CV, 2015 WL 3398379, at *5 (Tex. App.—San Antonio May 27, 2015, no pet.) (mem. op.)
(same). Ruth’s foster mother did not testify, and John had spent the entirety of the case living in
a psychiatric hospital and various residential treatment centers. The siblings desperately want to
be together, but the Department was unable to establish that such an outcome will occur.
CONCLUSION
Given that most of the Holley factors weigh in Appellant’s favor, I would conclude the
evidence presented at trial was insufficient to support the jury’s best interest findings. “The law
sets a high evidentiary bar for termination of parental rights. We do not alleviate the plight of
Texas foster children by lowering that bar and perpetuating diminished judicial expectations of the
proof that must be presented by the Department.” In re B.D.A., 2018 WL 761313, at *14
(Massengale, J., dissenting on reh’g). Accordingly, I would reverse the judgment of the trial court
and remand for further proceedings.
Rebeca C. Martinez, Justice
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