S. G. and S. T. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00085-CV

S. G. and S. T., Appellants

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 302,469-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING

MEMORANDUM OPINION

Appellants S.G. (Mother) and S.T. (Father) appeal from the district court’s decree

terminating their parental rights to their children, son D.T. (Child 2), born December 5, 2016,

and daughter S.M.T. (Child 3), born May 18, 2018. 1 In a single issue on appeal, Mother

challenges the legal and factual sufficiency of the evidence supporting the district court’s finding

that termination of her parental rights is in the best interest of the children. In four issues on

appeal, Father also challenges the legal and factual sufficiency of the evidence supporting the

best-interest finding and additionally challenges the legal and factual sufficiency of the evidence

1 For the children’s privacy and to avoid confusion, we refer to them by their initials and
their birth order. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. A third child involved
in the suit was daughter L.G. (Child 1), born September 11, 2014, the daughter of Mother and
another man. However, in July 2019, Child 1 was placed with her father, and in February 2020,
the suit involving Child 1 was severed from this suit.
regarding the statutory grounds for termination. For the following reasons, we will reverse the

termination decree and remand for a new trial.

BACKGROUND

In August 2018, the Texas Department of Family and Protective Services (the

Department) filed suit to terminate the parental rights of Mother and Father to Child 2 and

Child 3, following allegations of physical abuse and neglectful supervision by Mother against

Child 3. In the removal affidavit, Department investigator Tracey Scott averred that Child 3

suffered a “significant amount of severe injuries which were caused while [Child 3] was in

[Mother]’s care,” and that “[m]edical professionals believe all of the injuries are not consistent

with the explanation given by [Mother].” Scott further averred that during the investigation into

the injuries, Father refused to cooperate with the Department.

While this suit was pending, Mother and Father had another daughter, S.T. (Child

4), born October 18, 2019, and the Department initiated a separate suit affecting the parent-child

relationship involving this child. 2 As we discuss in detail below, the circumstances involving the

parents changed significantly after the birth of Child 4.

The suit involving Child 2 and Child 3 proceeded to a bench trial that began on

January 3, 2020, and was continued on August 28, 2020, September 4, 2020, October 27, 2020,

and December 16, 2020. We discuss the evidence presented during trial in detail below. At the

conclusion of trial, the district court took the matter under advisement and later found that

2 When asked why Child 4 was not in the same case as Child 2 and Child 3, Department
caseworker Vanessa Taylor, who was assigned to the case involving Child 2 and Child 3,
testified, “So supervisors and everybody just thought it was in the best interest of the case for
[Child 4] to have her own case due to the animosity between myself and the parents.” The
Department caseworker assigned to the case involving Child 4 was Loni Hernandez, who
testified at trial as a witness for Mother.
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termination of Mother’s and Father’s parental rights was in the best interest of the children and

that Mother and Father had: (1) knowingly placed or knowingly allowed the children to remain

in conditions or surroundings which endanger the physical or emotional well-being of the

children, (2) engaged in conduct or knowingly placed the children with persons who engaged in

conduct which endangers the physical or emotional well-being of the children, and (3) failed to

comply with the provisions of a court order that specifically established the actions necessary for

the parent to obtain the return of the children. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O),

(2). This appeal followed.

STANDARD OF REVIEW

The district court may order termination of the parent-child relationship only “if

clear and convincing evidence supports that a parent engaged in one or more of the [statutorily]

enumerated grounds for termination and that termination is in the best interest of the child.”

In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam) (citing Tex. Fam. Code § 161.001(b));

see A.C. v. Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 697 (Tex. App.—Austin

2019, pet. denied). “Proceedings to terminate the parent-child relationship implicate rights

of constitutional magnitude that qualify for heightened judicial protection.” In re A.C.,

560 S.W.3d 624, 626 (Tex. 2018). Parental rights have been characterized as “essential,” “a

basic civil right of man,” and “far more precious than property rights.” Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)). They are

“perhaps the oldest of the fundamental liberty interests” protected by the United States

Constitution. Troxel v. Granville, 530 U.S. 57, 65 (2000); E.E. v. Texas Dep’t of Fam. &

Protective Servs., 598 S.W.3d 389, 396 (Tex. App.—Austin 2020, no pet.). “When the State

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initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental

liberty interest, but to end it.” Santosky v. Kramer, 455 U.S. 745, 759 (1982). “Consequently,

termination proceedings should be strictly scrutinized, and involuntary termination statutes are

strictly construed in favor of the parent.” Holick, 685 S.W.2d at 20. “Because termination of

parental rights ‘is complete, final, irrevocable and divests for all time’ the natural and legal rights

between parent and child,” a trial court “cannot involuntarily sever that relationship absent

evidence sufficient to ‘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.’” A.C., 560 S.W.3d at 630 (quoting Tex. Fam.

Code § 101.007; Holick, 685 S.W.2d at 20). “This heightened proof standard carries the weight

and gravity due process requires to protect the fundamental rights at stake.” Id.

“A correspondingly searching standard of appellate review is an essential

procedural adjunct.” Id. “The distinction between legal and factual sufficiency lies in the extent

to which disputed evidence contrary to a finding may be considered.” Id. “Evidence is legally

sufficient if, viewing all the evidence in the light most favorable to the fact-finding and

considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or

conviction that the finding was true.” Id. at 631. “Factual sufficiency, in comparison, requires

weighing disputed evidence contrary to the finding against all the evidence favoring the finding.”

Id. “In a factual-sufficiency review, the appellate court must consider whether disputed evidence

is such that a reasonable factfinder could not have resolved it in favor of the finding.” Id.

“Evidence is factually insufficient if, in light of the entire record, the disputed evidence a

reasonable factfinder could not have credited in favor of a finding is so significant that the

factfinder could not have formed a firm belief or conviction that the finding was true.” Id.

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 DISCUSSION

Best-interest finding

In Mother’s sole issue and Father’s fourth issue, they argue that the evidence is

legally and factually insufficient to support the district court’s finding that termination of their

parental rights is in the best interest of the children. When deciding the best-interest issue, we

consider the well-established Holley v. Adams factors, which include the children’s wishes, the

children’s emotional and physical needs now and in the future, emotional or physical danger to

the children now and in the future, the parenting abilities of the parties seeking custody,

programs available to help those parties, plans for the children by the parties seeking custody, the

stability of the proposed placement, the parent’s conduct indicating that the parent-child

relationship is improper, and any excuses for the parent’s conduct. 544 S.W.2d 367, 371-72

(Tex. 1976); see A.C., 560 S.W.3d at 631; In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012); In re

C.H., 89 S.W.3d 17, 27 (Tex. 2002).

“[T]here is a strong presumption that the best interest of a child is served by

keeping the child with a parent.” In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). “And because of

the strong presumption in favor of maintaining the parent-child relationship and the due process

implications of terminating a parent’s rights to her minor child without clear and convincing

evidence, ‘the best interest standard does not permit termination merely because a child might be

better off living elsewhere.’” In re D.L.W.W., 617 S.W.3d 64, 81 (Tex. App.—Houston [1st

Dist.] 2020, no pet.) (quoting In re J.G.S., 574 S.W.3d 101, 121–22 (Tex. App.—Houston [1st

Dist.] 2019, pet. denied)). “Moreover, termination is not warranted ‘without the most solid and

substantial reasons.’” Id. (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)). “In

parental-termination proceedings, [the Department’s] burden is not simply to prove that a parent

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should not have custody of her child; [the Department] must meet the heightened burden to

prove, by clear and convincing evidence, that the parent should no longer have any relationship

with her child whatsoever.” Id. (citing In re K.N.J., 583 S.W.3d 813, 827 (Tex. App.—San

Antonio 2019, no pet.)).

Mother’s and Father’s conduct and danger to the children now and in the future

The Department presented evidence that Child 3 suffered serious injuries on one

occasion. At the time the case began, Child 3, who was then three months old, was in the

hospital for injuries that included fractures to her skull, arm, and foot, and bruising to her face,

scalp, neck, and upper right arm. According to Department investigator Tracey Scott, Mother

told her that Child 3 had been injured when she fell off a bed. However, according to the child’s

medical records, Child 3 had “injuries to both sides of her body and on multiple body surfaces

that do not appear consistent with a single fall from the bed as reported.” The records further

stated that Child 1 “told the CPS worker that [Mother] threw [Child 3] to [Child 1] to catch but

that she was unable to and the baby fell on the floor.” The doctor who evaluated Child 3 wrote

in her evaluation that she believed Child 3 “has been the victim of physical abuse and her safety

would be at risk if returned to her previous social situation.”

Mother testified that on August 21, 2018, the day before Child 3 was taken to the

hospital, Child 3 had been in the care of Mother’s friend, Latoya Shepard. When Shepard

returned Child 3 to Mother that night, Mother noticed that Child 3’s arm appeared “swollen,” but

she “didn’t think nothing of it” at the time. Mother placed an ice pack on the arm and wrapped it

in a bandage. Mother testified that she was not concerned about the swelling until “the Vaseline

came off of” the child. When asked why she did not take Child 3 to the hospital that night,

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Mother explained, “Because, like I said, the Vaseline—if the Vaseline wouldn’t have been on

there, I probably would have been able to see it. But the Vaseline didn’t wear off until the next

day. So that’s when everything really appeared up on her, when the Vaseline weared off.” At

that point, Mother sent her mother a photo of Child 3’s arm, and her mother told her, “You need

to take her to the emergency room.” Mother did so.

When asked if Child 3 had any accidents or falls the morning that she was taken

to the hospital, Mother testified that Child 3 had “just rolled off the bed” in Mother’s bedroom.

Mother added that she had been in the bathroom changing another child’s diaper at the time and

had left Child 3 unattended for “[l]ike maybe five or ten minutes at the most,” when she heard

Child 3 fall onto the floor. Mother testified, “As soon as I heard my baby fall, I literally took out

of the bathroom and went straight to my baby” and “picked her up off of the floor.” Mother

denied hurting Child 3, dropping her, or throwing her to the ground.

Father testified that on the night of August 21, he noticed that Child 3’s arm was

swollen and was told by Mother that Child 3 was “crying and stuff like that, but that’s the only

thing [he saw] that was wrong with her.” Father assumed that Mother had already taken Child 3

to the hospital because Child 3’s arm was wrapped in a bandage. The next morning, he left the

house early and was not informed until later that day that Child 3 had been taken to the hospital.

When asked if he had checked on Child 3 before leaving the house that morning, Father testified,

“She was good to me. She was good. I didn’t see no bruising.” Father denied causing Child 3’s

injuries and testified that he did not believe that Mother caused Child 3’s injuries, although he

acknowledged that Mother was alone with Child 3 during some of the time on August 21 and 22,

the dates on which the injuries most likely occurred. Both Mother and Father claimed that Child

3 might have been injured while in Shepard’s care.

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 The Department also presented evidence that Mother and Father had in the past

used cocaine and synthetic marijuana, also known as K2 or “spice.” When asked how often she

and Father had used synthetic marijuana, Mother testified, “Like often,” although she denied that

they used it “every day.” When asked if they used it “every other day,” Mother answered, “I

wouldn’t say ‘every other day.’ I mean, we give it time. We just don’t smoke it like we’re

addicted to it. It’s not something that I have to have every day.” Mother also acknowledged that

she tested positive for cocaine when the case began, although she claimed that she “only did

cocaine because [she] was at a party.”

Father similarly admitted that he had been using cocaine and synthetic marijuana

at the time the children were removed in August 2018, although he claimed not to have known

that Mother was using cocaine until after she had tested positive. Father denied using drugs

inside the house and claimed that he had used drugs only when he would “walk outside.” Father

also claimed that he had stopped using drugs three months after the case began, in November

2018. However, Department caseworker Vanessa Taylor, who had been assigned to the case

involving Child 2 and Child 3, testified that Mother and Father continued testing positive for

illegal drugs “several times” after the case had begun, and drug-test results admitted into

evidence confirmed this. Almost all the positive drug tests were for synthetic marijuana. Father

tested positive for cocaine one time in September 2018, over two years before the final trial

setting in December 2020, and Mother tested positive for cocaine twice, once in September 2018

and again in September 2019, over one year before the final trial setting. Taylor testified that the

last time Mother and Father tested positive for synthetic marijuana was November 9, 2019, and

she acknowledged at the August 2020 trial setting that throughout 2020, both parents had

consistently and weekly tested negative for illegal drugs.

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 Stability and parental abilities of Mother and Father

At the time Mother testified, at the September 2020 trial setting, she was living in

a motel due to renovations taking place at her apartment complex and had been unemployed for

three months but was looking for a job. Mother testified that she had previously worked at AGE

Industries, a manufacturing company in Belton. When asked why she was no longer working at

that job, Mother testified, “Because I didn’t have transportation.” She added that she “currently

[has] transportation right now,” specifically a membership with Lyft, a ridesharing company.

Mother also testified that she was “currently getting unemployment” benefits of $1200 per

month and that she was paying child support for her oldest daughter, Child 1, of $100 per month.

Mother further testified that she is currently attending therapy with Tawanna Flowers. Mother

testified that she had “just started” therapy with Flowers, and she claimed that she had been

unsuccessful with previous therapists who had been assigned to her in the case because she had

been pregnant, did not have reliable transportation, and was looking for a job.

Mother testified that she was approximately “22 or 23 weeks” pregnant with

another child (Child 5) and that Father could be the father of Child 5. When asked to specify her

current relationship with Father, Mother testified, “We’re not together.” Father also testified that

he was no longer in a relationship with Mother, but he acknowledged that he could be the Father

of Child 5.

At the time Father testified, at the August and September 2020 trial settings, he

lived in a three-bedroom apartment and had been unemployed for two weeks, since he had

resigned from a job that he had held for two months. Father testified that this job had paid him

$3,000 per month and that he currently had “around $7000” in savings to pay rent and other

expenses while he was unemployed. Father explained that he was looking for work with the

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assistance of a temp agency but was waiting on the results of the termination trial to determine

the number of hours that he would be able to work if the children were returned to him. Father

also testified that he was working on getting his driver’s license. Father stated that he was

prepared to pay for childcare once he found a job and that he would leave the children only in the

care of someone he trusts.

Father further testified that he had seven children, including the children that were

the subject of this suit, but that he did not have full custody or pay child support for them.

Latasha Oliver, the mother of two of Father’s other children, testified on the final day of trial in

December 2020. Oliver testified that Father supported her and their children financially, even

though he had not been ordered by a court to do so, and that her children had lived with Father

“for about three months now.” When asked for her opinion on Father’s parenting abilities,

Oliver testified, “I think he [is] an awesome dad. He’s trying. He ain’t did like the rest of the

dads I know and gave up and not trying to help with his kids. He helps with his kids, all of them,

even the ones that’s not his.” She added that Father has “always been a protective parent over

his children. He’s protective over children, period.” When asked in what ways Father was

protective, Oliver testified, “As far as keeping them safe, feeding them, clothing them, making

sure they bathe, making sure that they’re not getting into nothing that they’re not supposed to be

getting into.” When asked to describe her impression of Father “now as opposed to two years

ago,” Oliver testified, “He [has] changed. He [has]—I mean, everybody makes mistakes.

He [has] changed. He’s trying. He’s trying to take care of his kids. Like I say, we all

make mistakes.”

Another witness for Father was his aunt, Natia Ned, who testified that Father

would often babysit her younger two children, ages eight and eleven, “like every other weekend

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or every two weeks.” When asked if she had ever known Father to be violent with children, Ned

testified, “No, and I’ve been knowing him all my life, all his life.” She also testified that she was

“very” confident in Father’s ability to be a protective parent for the children.

Father’s current therapist Sam Callaway testified at the September 2020 trial

setting. At that time, Callaway had seen Father ten times beginning in June 2020. When asked

what they had been working on in therapy, Callaway testified, “We’ve had several different

things. We’ve done a lot on protective parenthood. We’ve done a lot about alcohol, drug abuse,

and the dangers of it, making right decisions.” When asked what concerns, if any, he had with

Father having custody of his children, Callaway testified, “Initially, the injuries to the child were

very upsetting. I wanted to evaluate the kind of person he was to see if I felt like he could do

that kind of thing, and since then I’ve found him to be a pretty mild person.” He also testified

that Father told him that “he didn’t have anything to do with [Child 3’s] injuries” and that “I

think maybe he believes this other lady that had the possession of the child may have been

responsible.” Callaway believed that Father had made progress in the ten sessions that he had

seen him, although he acknowledged that he had seen Father only during the time that Father

was not taking drugs. Callaway explained,

He comes in at the beginning and speaks and he responds to the teaching on
protective parenting. Again, I appreciate . . . that I didn’t know him when he was
using drugs, so all I’ve got to judge by is what I have right now. But he’s very
attentive and he’s very engaged in every moment that he’s in my office.

Callaway added that he had no difficulties regarding Father failing to show up, canceling, or

failing to arrive on time for appointments. In fact, Callaway testified, “he’s there early.”

Callaway further testified that he did not think Father “was ready necessarily for

the children to return to his home. I think he needs to have—spend some time with the kids, a
11
little more time with the kids, and have further evaluation.” He added, however, that he did not

believe that Father was a “danger” to the children “from what I know of him right now” and that

with continued therapy, Father “would become a good parent and can become a good parent. He

only speaks well of the children, he only speaks lovingly of the children, and so I believe he can

put that into practice.”

Loni Hernandez, the Department caseworker who had been assigned to the

separate case involving Child 4, testified at the September and October 2020 trial settings. At

the September setting, she agreed that she had been the caseworker “facilitating [Mother’s and

Father’s] services pretty much for the last several months” and had “sort of taken over the mantle

of controlling their services” because “this case is now in final hearing.” Hernandez testified that

the primary permanency goal in the case involving Child 4 is family reunification. When asked

why she had not changed the goal to something other than family reunification, Hernandez

explained, “When I look at the services and the changes that the parents have made through the

start of my case in November 2019, they’ve come a long way. They continually make changes

in regards to [Child 4].” One of those changes, according to Hernandez, was that they were

living separately, which Hernandez believed had been beneficial to their progress in completing

services. When asked if she felt like both parents were making a sincere effort to work their

services, Hernandez testified, “Absolutely. In regards to [Child 4], they’ve made massive

changes.” When asked to describe these changes, Hernandez testified:

[Father] is no longer homeless; he has a home. He has completed the—paying his
fine so that he could take the course to get his driver’s license. He has an
appointment to complete his driver’s license next week. I believe it’s the 9th [of
September]. He is attending therapy. He is drug testing negatively.

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 Mom is attending therapy. She was working. She has stated to me that she’s
applying and in the process of getting hired at the VA, and she had to take a drug
test. And then she has a home. It is in the process of being renovated, but the
entire [apartment complex] is in the process of being renovated. And then she has
a vehicle, and from my understanding she’s supposed to be working on her
license. She hasn’t provided me proof of completing that. Oh, and she’s drug
testing negative.

When asked if she was “concerned about the prior injuries to [Child 3] and the

lack of explanations for those injuries,” Hernandez testified,

Absolutely, we are. Unfortunately, we don’t know who committed the injuries to
[Child 3], and so we’re trying to look at what the parents have done, what
behaviors they’ve changed. And we definitely would love to know who injured
this child, and that’s why we have it being addressed in therapy.

When asked what the parents could address in therapy “if they’re both denying that either one of

them caused the injuries,” Hernandez testified, “That’s a good question. Both of them have told

me that they are adamant that someone else did it. [Father] has swore up and down that he was

not present when the injuries happened at all.”

Hernandez further testified that Mother had an I.Q. of 56, which she

acknowledged was a “pretty low score,” but she believed that Mother “could get to a point where

she could parent [Child 4]. Absolutely.” When asked if she felt that Mother’s “I.Q. level

impedes her ability to work services or to parent her children,” Hernandez testified,

I would not say that. The reason that I say that is because she does show up to her
visits with [Child 4]. She follows when I tell her she’s got to do certain things,
like making sure that [Child 4] has hand sanitizer at the beginning of her visit.
She remembers it from week to week. She remembers to bring toys and things
like that for [Child 4].

Hernandez also testified that “there were no safety concerns” with Mother’s home.

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 Regarding Father’s living situation, Hernandez clarified that when she had earlier

testified that Father used to be “homeless,” she meant that he was “bouncing from home to

home. He was staying with [Mother] some days, he was staying with [a relative]. He didn’t

have a home where his name was on the lease and he was responsible for the bills.” Now,

however, Father had a home, and Hernandez testified that “there were no safety concerns” there.

When asked if she had concerns about Father’s “ability to provide for [the] welfare and safety of

his children,” Hernandez testified,

Yes and no. It was kind of shocking that he quit a job that was—I mean, he was
making decent money. He was able to pay all of his bills, and so just quitting it
without having something lined up can cause some apprehensions. He’s trying to
do the other things. He has not provided me any family or friends as
backup support.

Hernandez also testified that Father had provided her documentation confirming that he had been

employed in July and August 2020 and earlier in February, March, and April 2020.

Hernandez testified that Mother and Father had been consistent in attending all

their visits with the children. Department caseworker Taylor similarly testified that Mother and

Father “don’t miss a visit. They’re always at the visits.” Taylor also testified that Mother and

Father bring to the visits “toys, food, clothing, you know, they always come with lots of stuff for

the children.” She added that the children seemed excited to see Mother and Father during the

visits and that, other than some “rowdy” behavior by the children during the visits that the

parents failed to “redirect,” she had “no concerns with the visits.”

Hernandez further recounted that during the visits, Father would provide items

that Child 4 needed, such as a new car seat, that he was “a safe and nurturing father when he’s

engaging with [Child 4],” and that he had followed Hernandez’s recommendations “with respect

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to what he can do to provide a safe environment for his child.” Hernandez testified that Father

was making progress in completing his services. When asked how she could see her

“recommendation changing for a monitored return” of that child “if the visits continue going

well and the drug testing continues going well,” Hernandez explained,

[M]ost likely I’ll be asking for an extension so that we can provide a little bit
more time to [Father]. It seems like for sobriety he’s been doing that since
December [2019]. But in regards to therapy, it was only started with this therapist
in June [2020], so we probably need a little bit more time.

During the next trial setting in October 2020, Hernandez testified that she had in

fact requested an extension in the case involving Child 4. When asked why she had done so,

Hernandez explained, “Due to COVID and the parents not having the opportunity to completely

work all their services, such as in-person visits, in-person therapy, things like that, as well as this

case.” Hernandez added that she had received a recommendation from Father’s therapist that

Father be allowed unsupervised visits with Child 4 and that the Department was not opposed to

that recommendation. At the time of the December 2020 trial setting, unsupervised visits

had begun.

Hernandez further testified that Mother was attending therapy every week,

although Hernandez did not have any notes or recommendations from Mother’s therapist. When

asked if Mother has “continued in her other services” since the last trial setting in September,

Hernandez testified, “Yes. She still has a home. She is drug testing negatively.” Hernandez

added that the renovations at Mother’s apartment complex “have been completed” and that

Mother had returned to her apartment.

When asked if, “in regards to their current services, [Mother and Father] are doing

them and they are doing them satisfactorily,” Hernandez testified, “In regards to the other case
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[involving Child 4], yes, sir. That is correct.” She added that she was still recommending family

reunification in the case involving Child 4, although she was not making that recommendation in

this case.

It was Taylor, the Department caseworker who acknowledged that there was

“animosity between [her]self and the parents,” who recommended terminating Mother’s and

Father’s parental rights. Taylor testified primarily at the January and August 2020 trial settings,

although she also testified briefly at the later settings. At the January and August 2020 settings,

Taylor testified as to the court-ordered services that Mother and Father had failed to complete,

including their unsuccessful discharge from multiple therapists, their failure to test negative for

illegal drugs earlier in the case, and their failure to pay child support.

Taylor further testified that she “had concerns for [Father’s] aggressive behavior

and his fights.” She explained that following a court appearance in the case, Father and other

relatives of the children had a “scuffle” with Child 1’s father near the courthouse elevator and

that they all had to be escorted out of the courthouse and to their cars by the court bailiff. Taylor

also testified about an incident between her and Father during one of her home visits in which

Father became argumentative with Taylor, accused her of failing to help him “get his children

back,” and “kind of bristled up aggressively as if he wanted to hit [her].” Taylor testified that

she “reared back and made him aware that [she] wasn’t afraid of him,” but Father kept saying

that she was “provoking him and [that] he [was] going to do something” about it.

Father denied that any such incident with Taylor occurred. Additionally,

Department caseworker Hernandez testified that she had no experiences with either Mother or

Father in which they were aggressive toward her, that they had been cooperative with her, and

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that at no point did she feel threatened by either of them. Father’s therapist Callaway similarly

testified that Father was cooperative and not aggressive during their therapy sessions.

At the August 2020 trial setting, Taylor was asked why she was still “asking for

termination” if Mother and Father had been testing negative for illegal drug use “the last eight

months.” 3 Taylor testified, “I don’t have a recommendation from any therapist saying that—we

still have a child that was severely injured with no explanation.” When asked if the Department

knew who caused the injuries to Child 3, considering that “it’s been two years since these

injuries” occurred, Taylor testified, “No ma’am.”

At the December 2020 trial setting, Taylor maintained that terminating Mother’s

and Father’s parental rights was in the best interest of the children, despite Mother and Father

testing negative for illegal drugs for over one year. When asked if the parents had made

“significant life changes” in that time, Taylor testified, “I’m not sure,” although she

acknowledged that “they’re no longer testing positive for illegal substances.” She added that her

recommendation for termination was based solely on “what happened in [her] case.”

Department’s plans for the children

At the January 2020 trial setting, Taylor testified that the Department’s plan for

the children was adoption, that the children had been placed in a foster home at the time of

removal in August 2018, and that the foster placement had wanted to adopt Child 2 and Child 3.

However, when Child 4 was born, that child was placed in the same foster home, and the foster

placement later changed her mind and no longer wanted to adopt the children because three

3 Taylor acknowledged later in her testimony that at the time of the August trial setting,
Mother and Father had been testing negative for closer to ten months.
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siblings were “a bit much for her,” although she agreed to let the children remain at her home

until a new placement could be found.

At the August 2020 trial setting, Taylor testified that the children had not yet

found an adoptive home. Taylor explained, “We did look and found a placement” in Houston,

but “COVID happened, so we had to stop the children’s visit with that placement.” She added

that the placement had been interested in adopting the children but that “they changed their mind

because they couldn’t see” or have any interaction with the children due to COVID. Taylor also

testified that home studies with two relative placements, specifically Mother’s mother and

Father’s grandmother, had been denied. At the conclusion of the August trial setting, the district

court directed the Department “to investigate and find possible legal-risk placements for the

children.” At the September 2020 trial setting, Taylor informed the district court that she had

scheduled a pre-placement visit with a possible home.

At the October 27, 2020, trial setting, Taylor testified that Child 2 and Child 3 had

been placed in a new foster home “[a]bout two and a half weeks ago.” At the December 2020

trial setting, Taylor testified that Child 2 and Child 3 remained in the home where they had been

placed in October, and she agreed that the current placement was “an appropriate placement that

could possibly lead to the adoption of these two children.” The children’s guardian ad litem

recommended termination of Mother’s and Father’s parental rights and that the children remain

in their current placement. She testified that they were “doing extremely well with their current

foster care placement.” She also testified that “[t]hey’re growing, they’re thriving, they’re being

introduced to different activities within the community.” She added, “And I know there has been

some concerns with [Child 3’s] speech therapy. She’s receiving all of the medical care at this

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time.” No other testimony was elicited as to the characteristics or appropriateness of the

current placement.

Desires of the children

At the September 2020 setting, caseworker Hernandez testified that Mother and

Father had visited Child 2, Child 3, and Child 4 together because the children had resided in the

same foster home. When asked if Child 2 and Child 3 had “a bond and a relationship” with

Child 4, Hernandez testified, “Absolutely.” Hernandez also testified that she believed that it was

in the three children’s best interest to remain together.

Caseworker Taylor testified differently. At the December 2020 setting, when

asked if she thought that, before terminating Mother’s and Father’s parental rights, it would be

“worthwhile” to wait and see if all the siblings “could be reunified together in one home,” Taylor

testified, “No, sir, I don’t agree.” However, when asked if there was “any risk” that the current

foster home would “give up placement” “if the decision on this termination was made months

from now to see what the outcome of that other case is,” Taylor testified, “No, sir.”

Conclusion regarding legal sufficiency

In sum, the Department presented evidence that Mother and Father had used

illegal drugs while the children were in their care and after the case had begun; that Child 3 had

suffered serious injuries while in the care of Mother or someone with whom Mother had left the

child and that Mother’s explanation for those injuries was not consistent with the medical

evidence; that Father was unaware of the severity of Child 3’s injuries and disregarded the

possibility that Mother could have been responsible for those injuries; that Father acted

“aggressively” toward one of the Department’s caseworkers and got into an altercation with the

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father of Child 1 at the courthouse; that both Mother and Father failed to comply with their

court-ordered family service plans; and that both Mother and Father had unstable employment

and housing situations when the case began. Also, the Department presented evidence that the

children were doing “extremely well” in their current placement. Viewing this evidence in the

light most favorable to the district court’s finding, we conclude that it is legally sufficient to

support the district court’s finding that termination of Mother’s and Father’s parental rights was

in the best interest of the children.

Conclusion regarding factual sufficiency

We cannot reach the same conclusion regarding factual sufficiency. Department

caseworker Taylor testified that her recommendation for termination of parental rights was based

only on “what happened in [her] case.” We cannot do the same. Our factual-sufficiency review

must consider the evidence “in light of the entire record” before us. See A.C., 560 S.W.3d at

631. That record includes the testimony of Department caseworker Hernandez, who, by the time

of the September 2020 hearing, had been “facilitating [Mother’s and Father’s] services pretty

much for the last several months” and had “sort of taken over the mantle of controlling their

services.” Hernandez testified that the primary permanency goal in the case involving Child 4

was family reunification, not parental termination, and this was despite the serious injuries to

Child 3. Hernandez acknowledged that the Department was “absolutely” concerned about those

injuries but testified that “we don’t know who committed the injuries to [Child 3].” Thus,

Hernandez’s recommendation for family reunification was based on the “massive changes” that

she had seen the parents undergo after Child 4 had been born. These changes included that both

parents were testing negative for illegal drugs on a consistent basis throughout 2020, attending

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therapy, and living in homes in which there were “no safety concerns.” Taylor’s

recommendation for parental termination, in contrast, was based primarily on what had occurred

before January 2020.

Although we consider the evidence of Mother’s and Father’s past behavior in the

best-interest determination, particularly the serious injuries to Child 3, in a factual-sufficiency

review, we must consider the disputed evidence contrary to the finding. Regarding the injuries

to Child 3 prior to her removal, it remained unknown at the time of trial how the child was

injured and both parents denied that they had caused the injuries. On this record, we cannot

conclude that those unexplained injuries provide factually sufficient, “clear and convincing

evidence” that termination of Mother’s and Father’s parental rights is in the best interest of the

children. Similarly, because there is undisputed evidence that at the time their rights were

terminated, Mother and Father were attending therapy on a regular basis, had made “massive

changes” for the better, and had been testing negative for illegal drugs for over one year, we

cannot conclude that Mother’s and Father’s past failures in those areas provide factually

sufficient, “clear and convincing evidence” that termination of Mother’s and Father’s parental

rights is in the best interest of the children. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—

San Antonio 2013, no pet.). (“[T]he mere fact that an act or omission occurred in the past does

not ipso facto prove that termination is currently in the child’s best interest.”); see also In re R.L.,

No. 04-13-00226-CV, 2013 WL 5508381, at *6 (Tex. App.—San Antonio Oct. 2, 2013, no pet.)

(mem. op.) (explaining that “[t]he best-interest inquiry is a forward-looking determination”).

Father, in particular, had been attending therapy since June 2020, and his therapist

testified that he did not believe Father presented a danger to the children “from what I know of

him right now” and that with continued therapy, Father “would become a good parent and can

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become a good parent.” Father also presented his own witnesses who testified to his ability to be

a protective and loving parent, and Taylor’s claim of Father’s aggressive behavior was disputed

by other witnesses.

Moreover, both Hernandez and Taylor testified that Mother and Father attended

all their scheduled visitations with the children and that the visits went well, and Taylor testified

that the children seemed excited to see Mother and Father during the visits. Thus, this was not a

case in which the visits revealed that the children did not want to see their parents, that the

parents behaved inappropriately around the children, or that the parents were delinquent in

visiting their children.

Additionally, there was undisputed evidence that Child 2 and Child 3 had “a bond

and a relationship” with Child 4, and Hernandez believed that it was in the three children’s best

interest to remain together. However, terminating Mother’s and Father’s parental rights to Child

2 and Child 3, while at the same time moving toward reunification with Child 4, would separate

the siblings, which would not be in their best interest. See In re De La Pena, 999 S.W.2d 521,

535 (Tex. App.—El Paso 1999, no pet.) (“Where it is possible for siblings to be kept together

and reared as a family, it is not in the best interest of the children that they be separated.”).

In light of the entire record, we conclude that the disputed evidence regarding the

best interest of the children is so significant that the factfinder could not have formed a firm

belief or conviction that termination of Mother’s and Father’s parental rights was in the best

interest of the children. Accordingly, the evidence is factually insufficient to support termination

of their parental rights.

We sustain Mother’s sole issue and Father’s fourth issue.

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Statutory grounds for termination

We must also address Father’s first, second, and third issues to the extent that he

argues the evidence is legally insufficient to support the district court’s findings as to the

statutory grounds for termination, because legal insufficiency would entitle Father to rendition

of judgment in his favor. See, e.g., C.L.J. v. Texas Dep’t of Fam. & Protective Servs.,

No. 03-13-00646-CV, 2014 WL 1203239, at *7 (Tex. App.—Austin Mar. 20, 2014, pet. denied)

(mem. op.). We will focus our analysis on the district court’s endangerment findings, see Tex.

Fam. Code § 161.001(b)(1)(D), (E), because of their “significant” collateral consequences, see

In re N.G., 577 S.W.3d at 237 (explaining that “as a matter of due process and due course of

law,” appellate court must review sufficiency of evidence supporting (D) or (E) grounds “when

the parent has presented the issue to the court” because endangerment findings in prior

termination proceedings can be used as basis for termination in subsequent proceedings

involving other children).

Termination of the parent-child relationship may be ordered under subsection (D)

if clear and convincing evidence establishes that the parent has “knowingly placed or knowingly

allowed the child to remain in conditions or surroundings which endanger the physical or

emotional well-being of the child,” Tex. Fam. Code § 161.001(b)(1)(D), and under subsection

(E) if the evidence establishes that the parent “engaged in conduct or knowingly placed the child

with persons who engaged in conduct which endangers the physical or emotional well-being of

the child,” id. § 161.001(b)(1)(E). These grounds are intertwined; subsection (D) focuses on the

child’s environment—which includes the child’s living conditions and the environment produced

by the conduct of the parents or others in the home—and whether the environment itself

endangered the child, while subsection (E) focuses on the parent’s conduct and whether the

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parent engaged in a voluntary, deliberate, and conscious course of conduct that endangered

the child. V.P. v. Texas Dep’t of Fam. & Protective Servs., No. 03-19-00531-CV,

2020 WL 544797, at *4 (Tex. App.—Austin Feb. 4, 2020, no pet.) (mem. op.); see In re C.V.L.,

591 S.W.3d 734, 750 (Tex. App.—Dallas 2019, pet. denied). Both subsections require proof of

endangerment, which means exposing a child to loss or injury or jeopardizing a child’s

emotional or physical well-being. See Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,

533 (Tex. 1987); A.C., 577 S.W.3d at 698-99. A finding of endangerment requires more than the

threat of metaphysical injury or possible ill effects from a less-than-ideal family environment,

but the Department does not have to prove that the conduct was directed at the child or that the

child suffered an actual injury. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); A.C.,

577 S.W.3d at 699. “Endangerment does not need to be established as an independent

proposition but may be inferred from the parental misconduct.” A.C., 577 S.W.3d at 699; see

C.V.L., 591 S.W.3d at 750.

“Evidence of a parent’s drug use, or evidence that another parent allowed a child

to be around a parent or other persons using drugs, can support the conclusion that the child’s

surroundings endanger her physical or emotional well-being under subsection (D) and can

qualify as a voluntary, deliberate, and conscious course of conduct endangering the child’s well-

being under subsection (E).” C.V.L., 591 S.W.3d at 751. However, “a finding of endangerment

based on drug use alone is not automatic.” Id. (citing In re D.C., 128 S.W.3d 707, 715–16 (Tex.

App.—Fort Worth 2004, no pet.)). “The party seeking termination must still present clear and

convincing evidence of the child’s actual physical surroundings or conditions that were created

by the endangering conduct to satisfy the requirements of subsection (D) and must show a

continuing course of conduct to satisfy the requirements of subsection (E).” Id.

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 In this case, the Department presented evidence that Child 3 suffered serious

injuries on or about August 21 or 22, 2018. Father admitted that during that time and while the

children were in his care, he used illegal drugs, specifically cocaine and synthetic marijuana.

Mother made similar admissions. Although Mother denied that she and Father had used drugs

the night before or the morning she took Child 3 to the hospital, the district court was free to

disbelieve her denial and infer that Mother and Father had been using drugs on the date that

Child 3 was injured. The district court could have further inferred that as a result of Father’s

drug use, he had failed to recognize or respond appropriately to the severity of Child 3’s injuries.

Father testified that on the night of August 21, shortly after Mother’s friend had returned Child 3

to them, he noticed that Child 3’s “arm was swollen” but “that’s the only thing [he saw] that was

wrong with her.” When asked why he did not take Child 3 to the hospital that night, Father

testified that he “assumed,” without asking, that Mother had already taken the child to the

hospital. Father also testified that the next morning, when he checked on Child 3 before leaving

the house, she looked “good to [Father]. She was good. [He] didn’t see no bruising.” But Child

3 was not “good,” and had extensive bruising. When Mother took Child 3 to the hospital later

that morning, Child 3 was diagnosed with injuries that included fractures to her skull, arm, and

foot, and bruising to her face, scalp, neck, and upper right arm. Father testified that he suspected

that Mother’s friend rather than Mother caused the child’s injuries, although he acknowledged

that Mother was alone with Daughter during some of the time on August 21 and 22, the dates on

which the injuries most likely occurred. The district court could have reasonably inferred from

this evidence that Father endangered Child 3’s well-being by failing to recognize, as a result of

his illegal drug use, the severity of her injuries and, instead of taking her to the hospital, did

nothing and left her with Mother, who might have been responsible for those injuries. Moreover,

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Father’s continuing to test positive for illegal drugs during the first year of the case supported a

finding by the district court that Father’s illegal drug use had been an ongoing habit that created

an endangering environment for the children even before Child 3 had been injured. On this

record, we conclude that the evidence is legally sufficient to support the district court’s

endangerment findings under subsections (D) and (E). See id.

We overrule Father’s first and second issues to the extent they challenge the legal

sufficiency of the evidence supporting the district court’s endangerment findings. Because we

are already remanding the case to the district court for a new trial, we need not consider Father’s

first and second issues to the extent they challenge the factual sufficiency of the evidence

supporting those findings. See In re M.A.J., 612 S.W.3d 398, 408–09 (Tex. App.—Houston

[1st Dist.] 2020, no pet.); Horvatich v. Texas Dep’t of Protective and Regulatory Servs.,

78 S.W.3d 594, 604 n.6 (Tex. App.—Austin 2002, no pet.). We also need not consider Father’s

third issue, in which he challenges the sufficiency of the evidence supporting the district court’s

finding under subsection (O). See A.C., 577 S.W.3d at 698.

CONCLUSION

We reverse the district court’s termination decree and remand the case to the

district court for a new trial. See Horvatich, 78 S.W.3d at 604.

__________________________________________
Gisela D. Triana, Justice

Before Justices Goodwin, Triana, and Kelly

Reversed and Remanded

Filed: August 6, 2021

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