in the Interest of J.A.S. Jr., a Child

NUMBER 13-12-00612-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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

On appeal from the 24th District Court
of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Justice Rodriguez
Appellant J.M. appeals the trial court’s order terminating her parental rights to

J.A.S. Jr. (J.A.S.), a child, born April 5, 2009.1 See TEX. FAM. CODE ANN. § 161.001

1
We will refer to the appellant as J.M. and her child as J.A.S, in accordance with rule of appellate
procedure 9.8. See TEX. R. APP. P. 9.8(b) (providing that in a parental-rights termination case, “the court
must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor’s identity, to the
minor’s parent or other family member”); TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2011) (“On the
motion of the parties or on the court’s own motion, the appellate court in its opinion may identify the parties
by fictitious names or by their initials only.”).
(West Supp. 2011). Following a bench trial, the trial court found that J.M. violated one of

the statutory grounds for termination, specifically section 161.001(1)(O). See id. §

161.001(1)(O). It also found by clear and convincing evidence that termination was in

the child’s best interest. See id. § 161.001(2); see also id. § 153.002 (West 2008).

Based on these findings, the trial court terminated J.M.’s parental rights and appointed

appellee the Texas Department of Family and Protective Services (the Department) as

J.A.S.’s temporary managing conservator. By three issues, J.M. asserts that (1) the trial

court erred in denying her motion to dismiss, and (2–3) the evidence is insufficient to

support the termination. We reverse and remand.

I. BACKGROUND

On November 4, 2010, after receiving a report alleging J.M.’s neglectful

supervision of J.A.S., the Department filed suit against J.M. At that time, J.M., J.A.S.’s

mother, was herself a child under the care and custody of the Department. She and

nineteen-month-old J.A.S. had been living in San Antonio, Texas, at Seton Home, a

supervised-care facility for teen mothers (fifteen to eighteen years of age) and their

children.

The petition filed by the Department sought protection of J.A.S., conservatorship,

and termination of J.M.’s parental rights in a suit affecting the parent-child relationship.

In support of its petition, the Department filed the affidavit of Christopher McKelvy, who

was J.M.’s caseworker with the Department at that time. The affidavit set out the

following facts, which McKelvy avowed necessitated J.A.S.’s removal because J.M.

provided neglectful supervision: (1) on November 3, 2010, J.M. was arrested for assault

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and booked into the Bexar County Jail, leaving J.A.S. without a caregiver; (2) on October

31, 2010, J.M. refused to parent J.A.S., stating that she wanted to sleep; and (3) in

October 2010, J.M. had left her placement without explanation or plan to return.

An emergency hearing was held on the day the petition was filed. The

Department appeared through McKelvy and its attorney.2 Following the hearing, the trial

court entered an emergency temporary order naming the Department as the child’s

temporary managing conservator and setting an adversary hearing for November 16,

2010. See id. § 262.205(b)(2) (West 2008).

J.M. appeared at the November 16 adversary hearing, and on December 7, 2010,

the trial court entered an order in which it found that there was “sufficient evidence to

satisfy a person of ordinary prudence and caution that . . . allowing the child to remain in

the home would be contrary to the child’s welfare.” See id. § 262.201(b)(1) (West Supp.

2011). It ordered that J.M. have limited access to J.A.S. in the form of supervised

visitation. The trial court also ordered J.M. to (1) appear in, submit to, and cooperate

fully in the court-ordered psychological or psychiatric evaluation; (2) attend and cooperate

fully in counseling sessions; (3) attend, participate in, and successfully complete

parenting classes; and (4) submit to and cooperate fully in the court-ordered drug and

alcohol dependency assessments and testing. In addition, the court ordered J.M. to

provide the Department and the trial court with, among other things, her current residence

and phone number, and any changes in her residence address or phone number.

Finally, the trial court ordered J.M. “to comply with each requirement set out in the
2
A transcript of the hearing does not appear in the appellate record; however, the trial court noted
their appearances in the emergency temporary orders.

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Department’s original, or any amended, service plan during the pendency of this suit,”

and it informed J.M. that failure to comply with this service plan might result in the

restriction or termination of her parental rights. The court appointed the Department as

J.A.S.’s temporary managing conservator. See id.

A number of permanency hearings were held over the next year, with orders

reflecting on May 6, 2011, that J.M. had demonstrated some compliance with the service

plan; on August 26, 2011, that J.M. had not demonstrated some compliance with the

service plan; and on March 5, 2012, that J.M. had not demonstrated adequate and

appropriate compliance with the service plan. The dismissal date for the case was set

and reset to May 7, 2012, the same day on which the trial on the merits began.

Although the trial began on May 7, 2012, the portion of the trial addressing J.M.’s

parental rights was continued until September 10, 2012.3 Before the trial continued on

that date, J.M. filed a motion to dismiss, arguing that the suit “should have been dismissed

on May 7[,] which is the date not later than the 180th day after the time [pursuant to]

263.401(a) which is the anniversary of the temporary orders.” See TEX. FAM. CODE ANN.

§ 263.401(a) (West 2008). Following argument of counsel, the trial court denied J.M.’s

motion and proceeded to trial.

The Department called J.M.’s and J.A.S.’s caseworkers and counselors to testify.

McKelvy, who had worked with J.M. as a minor in CPS custody in 2009, testified that he

did not think J.M. was capable of taking care of a three-year-old child. McKelvy

3
After hearing evidence on May 7, 2012 and then again on July 17, 2012, the trial court found that
it was in the best interest of J.A.S. that the parental rights of his biological father be terminated. The court
ordered his rights terminated, and J.A.S.’s father has not appealed that determination.

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explained that he went over the family plan with J.M. again and again, but she did not

“car[e] enough to pay attention” and “didn’t want to follow through.” He also talked with

J.M. about “placing her child’s needs above her own,” and “time and time again [J.M.] did

just the opposite.” He explained that J.M. “has not demonstrated . . . a willingness to

provide the care for the child,” and “[s]he has not provided the willingness to care for him

so . . . that definitely is the idea that she can’t care for him.” McKelvy testified that the

Department requested termination of parental rights.

Dawn Conrad, the caseworker who took over J.A.S.’s file from McKelvy when J.M.

became an adult on June 4, 2011, provided similar testimony. When asked if she felt

that J.A.S. would be in danger of being abused or neglected by J.M. if reunited, Conrad

responded, “I fear that he’d be neglected, yes. . . . [b]ecause I have nothing to go on but

her past and how she’s . . . working her services.” When asked if J.M. was doing better,

Conrad answered, “No. She’s still putting her needs in front of [J.A.S.’s needs].”

Conrad testified that J.M. does not understand what it takes to be a parent and that the

Department is concerned with J.M.’s history and the ties she still has with her family.

According to Conrad, the Department thinks it is in the best interest of J.A.S. that J.M.’s

rights be terminated.

Diana Sneed, a CASA case supervisor, testified that J.A.S. was in the

Department’s care when she began supervising J.M.’s case in November 2011. In

February 2012, CASA filed a report recommending that J.M.’s rights be terminated

because she was not demonstrating the ability to provide a stable environment for J.A.S.

This recommendation was based on the fact that J.M. continued to change partners, that

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she had not been compliant with her service plan, and that she failed to take anything

away from parenting classes. In addition, J.M. lacked a relationship with her son.

According to Sneed, there was no bond between them; rather, J.A.S. had bonded with his

foster family. Sneed was also concerned about the lack of family and financial support.

Sneed visited with J.M. at her apartment, but did not meet her husband because he was

working. Sneed also perceived a number of inconsistencies in J.M.’s relationships with

her family and was concerned that J.M. would have no support system to help her if J.A.S.

moved back to Victoria with her. Sneed did not know what work J.M. had done because

she had never given CASA proof of employment. Sneed testified that “CASA feels that

termination is in order.” Sneed believed that it was in J.A.S.’s best interest never to see

his mother again. Finally, Sneed testified that, at the time she testified at trial in

September 2012, she recommended termination for the same the reasons she gave in

February.

The Department also called J.A.S.’s foster mother and a family counselor as

witnesses. J.A.S.’s foster mother since December 19, 2011 testified that J.A.S. is very

happy, very smart, talkative, outgoing, has a great personality, and likes to play and have

fun. According to J.A.S.’s foster mother, after a visit with J.M. on Friday, the weekend

and following week are difficult. After a visit where J.M. tells J.A.S. he is going to live with

her, J.A.S. is “very, very clingy.” He cries for his foster mother. She sits and hugs him,

and J.A.S. tells her he needs her and is happy with her. J.A.S. has had a number of

outbursts at daycare following his visits with J.M. J.A.S. calls his foster mother and

father Mommy and Daddy and his biological mother by her first name. He did not

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mention J.M.’s husband to his foster mother after J.A.S. visited with him and J.M. on

August 17, 2012, shortly after their marriage. According to J.A.S.’s foster mother, only

about two to three visits before that J.A.S. had started mentioning J.M.

Gabriella Odell, a family counselor who counseled J.A.S. and his foster parents at

their request, testified that J.A.S., at three years of age, was bright, cheerful, smiling,

playful, and active, although quiet during the counseling session, talking only when

prompted. According to Odell, J.A.S. engaged very well with his foster parents and

appeared to be happy in this placement; he had bonded with his foster parents, appeared

to have a strong attachment to them, and referred to them as Mommy and Daddy. Odell

testified that she would be concerned with how J.A.S.’s behavior would change if that

bond were broken. Odell did not have any information about J.A.S.’s attitude or love for

his biological mother. She had not heard J.A.S. say anything about his biological mom;

he had never mentioned her by name.

Wendy Orsak, a licensed professional counselor working for Reclamation, testified

for the defense. Orsak began counseling J.M. in November 2011, as part of the CPS

case. The counseling sessions were sporadic at first and were terminated. However, in

March or April, counseling resumed and had been regular since that time. According to

Orsak, J.M. had improved. She now has the maturity, the desire, and the positive

attitude to take what she learns in her parenting classes and in her counseling sessions

and apply them elsewhere, specifically toward loving and supporting J.A.S. Although it

still takes some time for J.M. to accomplish things, she is figuring them out on her own.

For example, J.M. has followed through on obtaining her GED. J.M. is also looking

7
toward going to college. Orsak testified that J.M. is independent now. She is married

and living in an apartment, although, as Orsak noted, the apartment is funded by her

husband. Orsak understood that J.M.’s husband has a legal permit to work here.

Orsak met J.M.’s husband and after talking with him, got the impression that he planned

to treat J.A.S. as his own child, not as a stepchild.

Orsak had no concerns about drugs or alcohol with J.M. She had no real issues

with J.M. abusing or neglecting J.A.S. Orsak testified that she wants J.M. to succeed

and is not concerned that J.M. has missed visits with J.A.S. Orsak does not have

concerns about J.M. getting J.A.S. back. Orsak believes that J.M. will be able to care for

her son properly. She has “high hopes” for J.M. being successful as a parent with J.A.S.

According to Orsak, J.M. is one of two clients she has seen over the course of her

counseling career who had amazing resiliency to overcome everything. Although Orsak

testified that J.M. is ready to get J.A.S. back, she recommended that J.A.S.’s return be

monitored with the Department giving J.M. further support and extra guidance; not all

resources should be pulled from beneath J.M. Orsak would like to see one-on-one

counseling for at least six months until J.M. is comfortable parenting on her own. In her

opinion, it would be in everybody’s best interest to ensure that J.M. continues her

counseling.

Finally, J.M. testified on her own behalf. On direct examination, J.M. explained

that she came to CPS in August 2009 while she was living with her grandmother. She

was taken from her parents because they were mentally and physically unstable, and she

was being physically abused. At that time, J.A.S. was a few months old. She and

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J.A.S. first lived at Bluebonnet Ranch, then in the Piaz’s foster home, and then at Seton

Home. After she left Seton Home, she went back to the Piaz’s foster home until her

eighteenth birthday on June 4, 2011.

J.M. agreed that she had problems at Seton Home. On the occasion that J.M.

was arrested, she fought with a girl, who she claimed had smashed J.A.S.’s finger in the

door as J.M. was walking with him. J.M. testified that she was arrested at 10:30 a.m.,

right after the fight. According to J.M., she was in jail a couple of hours, leaving around

5:00 that evening, not even changing into jail clothing. She testified that she was gone

four hours when she was arrested for assault and booked in the jail leaving J.A.S. without

a caregiver. J.M. did not agree that she was in jail three days, as McKelvy had testified.

J.M. did not feel that it was necessary to take J.A.S. out of her custody because of this

incident.

J.M. testified that after she was released from jail she went to Seton Home “to get

her stuff.” Her grandmother had told her that CPS had taken J.A.S. during that time

because nobody was able to get him. According to J.M., it was the policy at Seton Home

for the staff members not to interact with the “kids,” and if he was not in daycare, there

was no one to watch him. J.M. testified that the assault case was dismissed; she has no

criminal history.

J.M. also explained that other than one positive drug test at Seton Home, she has

had no other problem with drug usage. J.M. also testified that the Department did not

give her a referral to an anger management program; that she attempted to complete

everything on the plan, including parenting classes and her high school education; that

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she is enrolled in college classes and wants to join the police force; and that she

completed most of the tasks, except for being able to visit J.A.S. regularly. Regarding

her visits with J.A.S., she explained she did not have trouble making her earlier visits

because friends, a friend’s mom, and Piaz would help her. According to J.M., in

November 2011, she moved to Victoria to be closer to J.A.S.; however, he was moved to

San Antonio. After that, the visits were not consistent, although her aunt would take her.

She testified that, now, her husband would help her see J.A.S. in San Antonio. J.M.

testified that she could not visit because of work and because she could not ask for days

off. J.M. explained that she did not make her difficulty in getting to San Antonio known to

the CPS because she felt nothing would be done—CPS had never helped her. She

testified that she had failed a recent driving test. However, if she had a car and a driver’s

license, J.M. explained that she would have been at every single visit.

During a break after her direct examination had been completed, J.M. left the

courtroom and did not return. The Department and J.A.S.’s attorney ad litem did not

have the opportunity to cross-examine her. After hearing closing arguments, the trial

court found that it was in the best interest of J.A.S. that the parental rights of J.M. be

terminated and ordered J.M.’s parental rights terminated as to the minor child J.A.S.,

based on the “totality of the evidence and the actions of the parties in this hearing.”

On September 21, 2012, the trial court entered its written order finding “by clear

and convincing evidence that termination of the parent-child relationship between [J.M.]

and the child the subject of this suit is in the child’s best interest.” The court also found

by clear and convincing evidence that [J.M.] failed to comply with the
provisions of a court order that specifically established the actions for the
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 mother to obtain the return of the child who has been in the permanent or
temporary managing conservatorship of the Department of Family and
Protective Services for not less than nine months as a result of the child’s
removal from the parent under Chapter 262 for the abuse or neglect of the
child.

This appeal followed.

II. MOTION TO DISMISS

By her first issue, J.M. contends that the trial court erred in denying her motion to

dismiss, which she claims was timely filed. In response, the Department asserts that the

trial court did not err in its ruling because the motion was not timely filed. We agree with

the Department.

Section 263.401(a) of the family code provides the following:

Unless the court has commenced the trial on the merits or granted an
extension under Subsection (b), on the first Monday after the first
anniversary of the date the court rendered a temporary order appointing the
department as temporary managing conservator, the court shall dismiss the
suit affecting the parent-child relationship filed by the department that
requests termination of the parent-child relationship or requests that the
department be named conservator of the child.

Id. The current version of section 263.402, which was in effect when this proceeding

began on November 4, 2010, further provides that,

A party to a suit under this chapter who fails to make a timely motion to
dismiss the suit under this subchapter waives the right to object to the
court’s failure to dismiss the suit. A motion to dismiss under this
subsection is timely if the motion is made before the trial on the merits
commences.

Id. § 263.402(b) (West 2008).

In the present case, it is undisputed that the trial began on May 7, 2012. J.M. filed

her motion to dismiss on September 10, 2012, more than four months after the trial

11
commenced. Because the motion was not timely filed pursuant to section 263.402(b),

J.M. waived her right to object to the trial court’s failure to dismiss the suit. See id.

Thus, the trial court did not err in denying the motion. We overrule J.M.’s first issue.

III. EVIDENTIARY ISSUES

By her remaining issues, J.M. challenges the sufficiency of the evidence to support

the termination of her parental rights. She claims, by her second issue, that the evidence

is legally and factually insufficient to support the trial court’s finding that her parental rights

should be terminated under section 161.001(1)(O) of the family code. See id. §

161.001(1)(O). In her third issue, J.M. asserts that the evidence is insufficient to support

the finding that termination is in the best interest of J.A.S. See id. § 153.002. Because

our review of the best-interest finding is dispositive of the appeal, we address J.M.’s third

issue first. See TEX. R. APP. P. 47.1.

A. Standard of Review

“Due process commands that courts apply the clear and convincing evidentiary

standard in parental rights termination cases.” In re E.N.C., 384 S.W.3d 796, 809 (Tex.

2012) (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982)); see In re B.G., 317 S.W.3d

250, 257 (Tex. 2010) (observing that a parental rights termination case implicates

“fundamental liberties” and “a parent’s interest in maintaining custody of and raising his or

her child is paramount” (quoting In re M.S., 115 S.W.3d 534, 547 (Tex. 2003))). Any

complaint that the evidence is legally or factually insufficient to support the findings

necessary for involuntary termination is analyzed by this heightened standard of

appellate review. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); In re C.H., 89 S.W.3d 17,

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25 (Tex. 2002). The clear and convincing standard is defined as 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 (West

2008); J.F.C., 96 S.W.3d at 265–66.

A legal-sufficiency challenge to a termination decree requires us to review all of the

evidence to determine whether the evidence viewed in the light most favorable to the

finding is such that the factfinder reasonably could have formed a firm belief or conviction

about the truth of the matters as to which the Department bore the burden of proof. In re

J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); J.F.C., 96 S.W.3d at 266. We “must consider

all of the evidence, not just that which favors the verdict.” J.P.B., 180 S.W.3d at 573;

J.F.C., 96 S.W.3d at 266. We “must assume that the factfinder resolved disputed facts in

favor of its finding if a reasonable factfinder could do so,” and we “should disregard all

evidence that a reasonable factfinder could have disbelieved or found to have been

incredible.” J.P.B., 180 S.W.3d at 573 (quoting J.F.C., 96 S.W.3d at 266); City of Keller

v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); see also Jordan v. Dossey, 325 S.W.3d 700,

712–13 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). “If [an appellate court]

determines that no reasonable factfinder could form a firm belief or conviction that the

matter that must be proven is true, then that court must conclude that the evidence is

legally insufficient.” J.F.C., 96 S.W.3d at 266. In our factual sufficiency review, “[i]f, in

light of the entire record, the disputed evidence that a reasonable factfinder could not

have credited in favor of the finding is so significant that a fact[ ]finder could not have

reasonably formed a firm belief or conviction in the truth of its finding, then the evidence is

13
factually insufficient.” In re M.C.T., 250 S.W.3d 161, 168 (Tex. App.—Fort Worth 2008,

no pet.) (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam)).

B. Applicable Law

In order to justify the termination of parental rights pursuant to section 161.001, the

Department must establish, 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 best interest of the child. TEX. FAM. CODE ANN. § 161.001; C.H.,

89 S.W.3d at 23. In addition, although the best interest of the child is often infused with

the statutory grounds for termination under section 161.001(1), the best interest

determination must have a firm basis in facts standing apart from the offending behavior

under the statute. In re S.R.L., 243 S.W.3d 232, 235 (Tex. App.—Houston [14th Dist.]

2007, no pet.); see In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.]

2008, pet. denied) (op. on reh’g) (explaining that evidence proving one or more of the

statutory grounds for termination may be probative in determining that termination is in

the best interest of the child).

There is a strong presumption that keeping a child with a parent is in the child’s

best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). In reviewing a

best-interest determination, we may consider: (1) the child’s wishes; (2-3) the child’s

emotional and physical needs now and in the future, emotional or physical danger posed

to the child now and in the future; (4) the parenting skills of those seeking custody; (5)

programs available to assist those seeking custody to promote the child’s best interest;

(6) plans for the child’s future; (7) the stability of the home; (8) any conduct by the parent

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that might show that the existing parent-child relationship is improper or harmful; and (9)

any excuse for that conduct. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

Prompt and permanent placement of the child in a safe environment is also

presumed to be in the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a) (West

2008). In determining whether J.M. was willing to provide J.A.S. with a safe

environment, the trial court could have considered, among other factors, the following:

(1) the results of psychiatric, psychological, or developmental evaluations of family

members who have access to the child’s home; (2) whether there is a history of abusive

or assaultive conduct by the child’s family who have access to the child’s home; and (3)

whether an adequate social support system consisting of an extended family and friends

is available to the child. See id. § 263.307(b) (6-7) & (13).

C. Discussion

By her third issue, J.M. contends that the evidence was legally and factually

insufficient to support the trial court’s finding that termination of her parental rights was in

J.A.S.’s best interest. J.M. argues that,

[o]ther than a multitude of witnesses that testified as to J.M.’s failure to visit
her child under the circumstances imposed by [the Department] and who
testified that J.M. had made mistakes while a teenager in foster care after
being taken from her own abusive parents, [the Department] presented
minimal and scant evidence relevant to each Holley factor that would
support a finding by clear and convincing evidence that termination of J.M.’s
parental rights was in the best interest of J.A.S.

1. The Holley Factors

a. The Desires of the Child

We agree with J.M. that there is no direct evidence in the record regarding the

15
desires of J.A.S., who was three at the time of trial. J.A.S.’s foster mother testified that

J.A.S. is very happy; however, after some visits with J.M., he clings to her and tells her he

needs his foster mother and is happy with her. She also testified that J.A.S. did not

mention J.M.’s husband after J.A.S. had visited with him on August 17, 2012, shortly after

the marriage. According to J.A.S.’s foster mother, he had only started mentioning J.M.

about two to three visits before that. In addition, family counselor Odell testified that

J.A.S. had bonded with his foster parents, and CASA supervisor Sneed stated that J.M.

lacked a relationship with her son and that J.A.S. had bonded with his foster family.

While there is evidence that J.A.S. is happy in his foster home and has bonded

with his foster parents, we are concerned that his lack of a relationship with J.M. was, in

part, the result of the Department’s actions in placing J.A.S. with a foster family in San

Antonio. The dynamics of J.A.S.’s present living arrangement is no evidence that J.A.S.

would not want to live with his mother. This lack of evidence does not constitute clear

and convincing evidence regarding the child’s wishes. See E.N.C., 384 S.W.3d at 808.

Therefore, we cannot conclude that this first Holley factor weighs in favor of termination.

b. Present and Future Emotional and Physical Needs and Present
and Future Emotional or Physical Danger Posed by J.M.

The Department’s primary concern involves J.M.’s visits with J.A.S. and her

parenting skills. These actions or omissions on the part of J.M. could impact J.A.S.’s

emotional and physical well-being and could indicate that J.M. might pose emotional and

physical danger to J.A.S., both in the present and in the future.

The evidence established that J.M. participated in approximately one-third to

one-half of her scheduled visits with J.A.S. The Department’s caseworkers and a CASA
16
case supervisor testified that J.M. failed to demonstrate her understanding of the services

through her supervised interactions with her child and that J.M. also failed to demonstrate

her ability and willingness to parent J.A.S. appropriately, i.e., to put his needs before her

own and to demonstrate an ability to change the pattern of behavior that resulted in

neglect. They recommended termination of J.M.’s parental rights.

However, J.M.’s current counselor Orsak, who had been counseling J.M. since

November 2011 and had counseled with her more than twenty times before trial,

explained that while J.M.’s actions were sporadic at first, she has improved. J.M.’s

counseling sessions have become regular, and although it still takes time for J.M. to

accomplish things, she is getting serious and figuring things out on her own. Orsak is not

concerned that J.M. has missed visits with J.A.S. According to Orsak, J.M. is taking on

responsibility and has followed through with many things, including obtaining her GED,

getting married, and living in her own apartment. J.M. is also planning to attend college.

J.M. also testified that she had complied with many parts of the service plan. In

addition to continuing her education and improving her participation in the counseling

program, J.M. explained that other than one positive drug test at Seton Home, she has

had no other problem with drug usage, thus, maintaining a drug-free lifestyle. J.M. also

testified that the Department did not refer her to an anger management program.

Instead, anger management was addressed in her counseling classes.

We cannot conclude that the trial court could have reasonably disbelieved or found

Orsak’s testimony and J.M.’s testimony to be incredible, such that the trial court would not

consider it. See J.P.B., 180 S.W.3d at 573 (quoting J.F.C., 96 S.W.3d at 266); City of

17
Keller, 168 S.W.3d at 827; see also Jordan, 325 S.W.3d at 712–13. While a trial court

could measure a parent’s future conduct by her past conduct regardless of recent

improvement, see Jordan, 325 S.W.3d at 732 (“Although evidence shows Jordan has

made some recent improvements to her past situation, those improvements cannot

absolve her of her long history of irresponsible choices.”), on the basis of the record

before us, we cannot conclude that a reasonable fact-finder could have formed a firm

belief or conviction that J.M.’s current progress should not be considered. Furthermore,

the Department did not explain or provide any evidence illuminating how J.A.S.’s physical

and emotional needs would go unmet if she continues to participate in the program as she

is doing at the present time. It did not explain or provide any evidence clarifying how

J.M.’s present actions or omissions, if any, would pose a danger to J.A.S.’s physical and

emotional needs. Without disregarding this testimony, the evidence on the record

before us does not constitute clear and convincing evidence. See E.N.C., 384 S.W.3d at

802. Therefore, we cannot conclude that the second and third Holley factors weigh in

favor of termination.

c. Parental Abilities of Those Seeking Custody

In this case, although J.M.’s caseworkers spoke of her negative behaviors, we

cannot conclude that this fourth factor weighs in favor of termination, observing that the

evidence suggests J.M. has matured, has improved her parenting skills through regular

counseling sessions, has availed herself of services provided by the Department, has set

goals, and has become motivated to accomplish those goals.

d. Programs Available to Assist Those Seeking Custody to
Promote the Child’s Best Interest
18
 The evidence shows that the Department provided, and could continue to provide,

programs to assist J.M. While J.A.S. remains in the care and custody of the Department,

the programs would be available to J.M. In fact, J.M.’s participation would be required by

court order and through the Department’s service plan. Orsak has recommended that

those programs be continued presently and during J.A.S.’s transition from his foster

home to his home with J.M. Therefore, the programs would be available to J.M. The

evidence shows that J.M. has begun to take initiative and is motivated to avail herself of

these programs. And there is no evidence the programs offered by the Department

would not be available to assist J.M. Thus, this fifth Holley factor weighs against

termination.

e. Plans for the Child’s Future

In this case, J.M. plans to have J.A.S. live at her apartment. J.M. does not have a

driver’s license, but has attempted to get one. She can rely on her husband and an aunt

for transportation until she gets her driver’s license. J.M. testified that she has a high

school diploma. She is also enrolled in college classes. J.M. hopes to become a police

officer. In addition, although J.A.S. has bonded with his foster family, he has begun to

mention his mother. We also note that although the Department did not provide

testimony regarding J.A.S.’s placement, its plan for the child was apparently to leave him

with the same foster parents. Nonetheless, lack of such plans does not preclude a

factfinder from finding that the termination of parental rights is in a child’s best interest.

See C.H., 89 S.W.3d at 28. This sixth Holley factor, then, is either neutral or weighs

against termination of J.M.’s parental rights.
19
 f. Stability of J.M.’s Home

J.M. testified that, while under the care and custody of the Department, she and

J.A.S. first lived at Bluebonnet Ranch, then in the Piaz’s foster home, and then at Seton

Home. After she left Seton Home, J.M. went back to the Piaz’s foster home until her

eighteenth birthday on June 4, 2011. The evidence reveals that since that time, J.M. had

one relationship in San Antonio and, upon her return to Victoria, met and, after nine

months, married her husband. Although the Department expressed difficulty in

contacting J.M. because she failed to inform the Department of any changes in her

address or phone number, the information was available through her counselor and her

attorney.

At the time of the termination hearing, J.M. was married and lived in an apartment

with her husband. Although the Department complains that J.M. withheld this

information, Orsak testified that she had the opportunity to meet and talk with J.M.’s

husband. Her impression was that he planned to treat J.A.S. as his own child, not as a

stepchild. According to Orsak, she understood that J.M.’s husband, who has a legal

permit to work here, is supporting J.M., who is, or has been, working at local restaurants.

While the court could consider J.M.’s past instability, we cannot disregard her current

stability, which the Department does not directly challenge. Therefore, there is a lack of

evidence establishing the instability of J.M.’s home in Victoria. We cannot conclude that

the seventh Holley factor weighs in favor of termination.

g. Any Conduct on the Part of J.M. that Might Show the Existing
Parent-Child Relationship Is Improper

The trial court could have concluded that the following acts or omissions indicated
20
that the existing parent-child relationship between J.M. and J.A.S. was not a proper one:

(1) J.M. placed her needs ahead of her child’s needs; (2) J.M. lacked motivation to

complete her services in a timely fashion; and (3) J.M. was not consistent in her visits with

her son and had not developed a bond with him. However, according to Orsak’s

testimony, it is clear that J.M.’s actions and understanding are improving. Her

participation in activities of the Department has increased, and according to her present

counselor, J.M. is showing initiative and is motivated to accomplish effective parenting

skills. In light of her current progress, the Department has not shown how J.M.’s earlier

conduct shows that the existing parent-child relationship is improper. Again, we cannot

conclude that this eighth factor weighs in favor of termination.

h. Any Excuse for the Parent’s Improper Conduct

Orsak testified that J.M.’s history could explain some of J.M.’s negative behaviors

and noted that J.M. had not had “a lot of good role models for her to follow.” J.M. testified

that she refused to go to chemical dependency classes after her positive drug test in

February 2010 because the class was “overboard”—it showed people shooting up and

how drugs were made, and she just did not feel comfortable. When asked about her

visits with J.A.S., J.M. explained she had help getting to her earlier visits. However,

when she moved back to Victoria, the Department placed J.M. with a foster family in San

Antonio and changed her visits with J.A.S. from Victoria to San Antonio. J.M. testified

that she had no car and no driver’s license, and it was more difficult to get to the visitations

in San Antonio because of her transportation problems and her work schedule. J.M.

explained that she had failed a recent driving test, but if she had a car and a driver’s

21
license, she would have been at every single visit. The Department directs us to no

evidence disputing J.M.’s excuses. We conclude that this ninth factor weighs against the

finding that termination was in the child’s best interest.

2. Texas Family Code Section 263.307 Factors

Section 263.307(b) factors address the safe environment of the child, which is

presumed to be in the child’s best interest. See TEX. FAM. CODE. ANN. § 263.307(b) (6-7).

The Department argues that J.M. would not provide a safe environment for J.A.S.

because there is a history of abusive or assaultive conduct by the child’s family members

who have access to the child’s home; J.M. would house her brother when he was

released from the Department’s care; and J.M. had knowledge of the allegations of

sexual abuse of her brother by their uncle.

J.M. testified that she came to CPS in August 2009 while she was living with her

grandmother. She was taken from her parents because they were mentally and

physically unstable and because she was being physically abused. McKelvy testified

that he recommended that J.M. disassociate herself from her family, but to his knowledge,

she had not done so. Conrad testified that the Department is concerned with J.M.’s

history and the ties she still has with her family.

However, J.M. testified about her relationship with her parents, which included

physical abuse. And while there was testimony that J.M. had seen her mother and her

father, each on one occasion, there was no testimony that J.M.’s parents have access to

her home or that they would be involved in the care of J.A.S. J.M. testified that an aunt

and her husband would be available to help. We cannot conclude that this is clear and

22
convincing evidence that J.M.’s limited contact with her family, specifically her parents,

will impair her ability to provide a safe environment for J.A.S.

J.M. also testified that she had known her husband for nine months before they

were married. According to J.M., her husband is supportive of her reuniting with J.A.S.

and is willing to help raise him. Orsak testified that she had a conversation with J.M.’s

husband. She got the impression that he planned to treat J.A.S. as his own child.

Orsak also understood that he had a permit to work here legally.

Orsak further acknowledged that she and J.M. had discussed allegations made by

J.M.’s brother that he had been sexually abused by their uncle. According to Orsak, J.M.

expressed concern about her brother. J.M. shared some of the following information

with Orsak: her brother, who had just turned eighteen, was on medications for mental

problems, but was going to refuse to take his medications because he was no longer in

the Department’s care. Orsak and J.M. discussed that it would not be a good idea for her

brother to live with her. According to Orsak, J.M. told the Department that her brother

could live with her, but only if he had no other place to go because J.M. did not want him

living on the street.

This safe-environment factor weighs against termination because the

Department’s position is based on speculative future behavior. In addition, J.M.

discussed these matters with Orsak, considering them in a well-reasoned manner.

3. Application

The Department is required to prove by clear and convincing evidence that

termination of a parent’s right to her child is in the child’s best interest, and the evidence

23
introduced at trial fails, at this juncture, to support the Department’s burden as to the

best-interest finding. Considering all evidence, including evidence that supports the

deemed finding regarding best interest, undisputed evidence, and evidence that the trial

court could not have reasonably disbelieved, especially the testimony regarding J.M.’s

current progress, see J.F.C., 96 S.W.3d at 268, we conclude that no reasonable

factfinder could have formed a firm belief that it was in J.A.S.’s best interest to terminate

J.M.’s parental rights.4 Thus, the evidence is legally insufficient. See id. at 265–66; see

also TEX. FAM. CODE ANN. § 101.007. Because the evidence is legally insufficient to

support the finding that termination is in the child’s best interest, we conclude that the trial

court erred in terminating J.M.’s rights pursuant to section 161.001 of the family code.

See TEX. FAM. CODE ANN. § 161.001. We sustain J.M.’s third issue.5

4
At the end of the termination hearing and before entering its oral pronouncement of termination,
the trial court provided the following reasoning for his termination order:

An overriding concern of the Department throughout this hearing has been a
reluctance on [J.M.’s] part to assume responsibility for her actions or to face the realities of
life. I understand she’s very young but if you abandon a child even for fifteen minutes in
frustration or anger, it can be deadly to a child that’s three-and-a-half years old. . . . [T]he
[c]ourt is extremely concerned that the mother would walk out of the hearing before its
conclusion and not return and I can only infer from that that she has a willingness to
abandon difficult situations. And raising children, it’s a difficult task filled with many
difficult situations.

The court then ordered termination based on the “totality of the evidence and the actions of the parties in
this hearing.”

While we do not condone J.M.’s failure to return, we conclude that it was unreasonable for the trial
court to give such weight to her action, in light of the very positive evidence that J.M. has matured and is
improving in her ability to parent J.A.S. It appears that the trial court relied heavily on J.M.’s action and
disregarded all testimony about J.M.’s recent improvement in this area.
5
Having held that the evidence is legally insufficient, we need not conduct a factual sufficiency
analysis on the best-interest finding. See TEX. R. APP. P. 47.1. Moreover, although there is clear and
convincing evidence that J.M. violated section 161.001(1)(O) of the family code by failing to comply with the
trial court’s order and the Department’s service plan, we need not address J.M.’s remaining issues because
our best-interest determination is dispositive of this appeal. See id.
24
 IV. CONCLUSION

Accordingly, we reverse the trial court’s order of termination because termination is

not in J.A.S.’s best interest at this time and remand the case to the trial court for further

proceedings in accordance with this opinion.

We do not conclude that the child’s best interest is unquestioningly for him to be

reunited with his mother; it is possible that the child’s best interest is to remain in foster

care. 6 On remand, the Department will have several options to consider, including

offering J.M. a service plan to visit J.A.S. on a schedule that is feasible and appropriate for

both mother and child and allowing J.M. an opportunity to comply with the plan.

NELDA V. RODRIGUEZ
Justice

Delivered and filed the 28th
day of February, 2013.

6
We note that J.M. does not challenge the Department’s conservatorship of J.A.S.
25