in the Interest of C.M. and C.F., Children

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.

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 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.
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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.

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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

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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.

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