# M. P. A/K/A M. D., J. J. L.-B., and C. J. L. v. Texas Department of Family and Protective Services

> Texas Court of Appeals, 3rd District (Austin) · September 16, 2022

URL: https://www.frixlaw.com/law-library/cases/8207406

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** September 16, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8207406

## How later opinions describe it (automated extraction)

- noting that witness credibility issues that depend on appearance and demeanor “cannot be weighed by the appellate court; the witnesses are not present”
- explaining that “[d]ue process requires the application of the clear and convincing evidence standard of proof in parental termination cases”
- stating that “finding that appointment of a parent as managing conservator would significantly impair the child’s physical health or emotional development is governed by a preponderance-of-the-evidence standard”

## Opinion text

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00163-CV

M. P. a/k/a M. D.; J. J. L.-B. and C. J. L., Appellants

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-20-003397, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

MEMORANDUM OPINION

M.P. a/k/a M.D. (Mother) and J.J.L.-B. and C.J.L. (Foster Parents) appeal from

the trial court’s final decree of termination and orders for conservatorship, possession, and

access. 1 Following a bench trial, the trial court terminated Mother’s parental rights to M.A.P.

(Child) and appointed the Texas Department of Family and Protective Services as the nonparent

permanent managing conservator of Child; M.P., Sr. (Father) as parent possessory conservator;

and Foster Parents as nonparent possessory conservators. In her appellate issue, Mother argues

that the trial court did not have jurisdiction to render a final order. In their two appellate issues,

Foster Parents challenge the legal and factual sufficiency of the evidence to support the trial

court’s predicate-ground and best-interest findings as to Father. See Tex. Fam. Code

1 We refer to the foster parents by their initials or as Foster Parents and the parents and
their child by their initials or as Father, Mother, and Child. See Tex. Fam. Code § 109.002(d);
Tex. R. App. P. 9.8. Father has not appealed from the final decree.
§ 161.001(b)(1)(O), (2). For the following reasons, we affirm the final decree of termination and

orders for conservatorship, possession, and access.

BACKGROUND

Mother and Father married in 2006, and Mother’s six-year-old son from a

previous relationship lived with them. Mother and Father separated in 2019 but began living

together again in the spring of 2020 when Mother was pregnant with Child. During her

pregnancy, Mother did not obtain prenatal care. In June 2020, Mother’s water broke, and

Mother and Father went to the hospital but left shortly afterward against medical advice. After

Mother was unresponsive during an exam, hospital staff searched her gown suspecting drug use.

Mother and Father left after Mother was searched and a dark tar-like substance was found in her

gown. 2 Mother, her son, and Father then stayed in a hotel. While they were at the hotel, the

police and the Department conducted welfare checks on Mother. After about one week, EMS

transported Mother to a hospital where she gave birth to Child, who was born premature, tested

positive for opiates, showed symptoms of drug withdrawal, and was admitted to the NICU for

treatment of drug withdrawal, where he remained for two months. Mother also tested positive

for amphetamine, opiates, “benzos,” and THC and admitted that she used illegal drugs including

heroin while she was pregnant with Child.

Shortly after Child was born, the Department filed an original petition concerning

Child and sought emergency relief. The trial court appointed the Department as Child’s

temporary managing conservator and removed Child from the parents’ care. The Department

2 Conflicting evidence was presented at trial as to what substance was found on Mother.
Evidence supported that it was heroin, but Father testified that it was not “black tar heroin” but a
“COVID test paper that they had provided for [Mother].”
2
identified Foster Parents as a possible placement, and they began visiting and training to care for

Child when he was in the NICU. Child was discharged from the hospital to Foster Parents, who

continued to care for Child during the case. In a separate suit, Foster Parents filed a petition for

termination of parental rights and adoption. The trial court consolidated their case with the

Department’s case prior to the bench trial.

The bench trial occurred in December 2021 when Child was around seventeen

months old. Mother was represented by counsel, but she personally attended only portions of the

trial. Father was present and acted pro se with the assistance of a court-appointed advisory

attorney. The witnesses at trial included Father, Mother, police officers, nurses who provided

medical care to Mother and Child, Department caseworkers and investigators, and Foster

Parents. The Department’s reasons for seeking to terminate parental rights included its

continued concerns with Mother’s drug addiction, her use of heroin when pregnant and during

the case, Father’s unwillingness to engage in services, and his perceived lack of protectiveness of

Child when Mother was pregnant and in labor.

Father testified that he lacked experience with “severe drug addiction” and “sick,

pregnant women” and that his “actions were [his] only options.” He testified that he and Mother

separated in 2019 because of Mother’s drug addiction, explaining that his concern with Mother

being “impaired” began a “few months” before they separated and that it was “a tough decision

to make, to leave [his] wife of 15 years because she’s sick.” After he found out in the spring of

2020 that Mother was pregnant, they began living together again. He did not believe that Child

“would be here had [Mother] not come back to [him] because she was not taking care of herself.”

He wanted to “ensure that [Child] came into the world so [he] did everything [he] could to make

that happen” and “the only way [he] knew how” to do that was “through the body of [Mother].”

3
He explained, “[T]he baby, of course, was very important. But if the mother doesn’t live neither

does the baby so [he] had to make sure [Mother] was healthy and strong, to the best of [his]

ability.” He testified that after they began living together again until Child was born, he “took

[Mother] to [outpatient] rehab” 3 and he “cooked for her every day, three meals a day, good

nurturing food.” As to their decision to leave the hospital when Mother was in labor, Father

testified that he did not think that it was dangerous to Child because a nurse said that Child was

“healthy and fine” and “medical people” told him that “there was no danger.”

Concerning his living situation and plans, Father testified that he was employed

on a full-time basis as a maintenance technician at a hotel, that he had a “big family” with “lots

of places [he could] stay,” and that his plan if Child was returned to him was for Mother to visit

with Child if she was sober but not to live with them. Father testified that he did not participate

in court ordered services because he thought that the orders were unconstitutional after he

received a “vindication” letter from the Department that “officially cleared [him] of any

wrongdoing.” 4 Father also testified that he did not visit with Child from January to June or

July 2021 because he could not deal with the caseworker and “had to step back” from the

Department’s “bullying.” 5 When asked to explain why the court should feel comfortable

returning Child to him, Father responded that he was the “non-offending parent,” would be an

“excellent father” to Child, and did a “good job” raising his stepson, who was “21 now.”

3 Father testified that he “[could not] say for sure that [Mother] worked the program, but
[he] walked her inside and [he] made sure she went.”
4 A Department investigator testified that Father was “ruled out” for abuse or neglect
because he had not been the Child’s caregiver. After Child was born and discharged from the
hospital, the Child lived with Foster Parents.
5 The Department caseworker from July to October 2020 testified that Father was
“nurturing and caring” during his visits with Child.
4
Mother testified that she and Father met and began living together in 2004 and

“didn’t really bounce around” and that Father was “very good at keeping—maintaining a home

for us” and provided a “stable place” to take care of her son. She also testified that she had

separated from Father “off and on” because of differences that they had, including their age and

kinds of friends. She explained that “[her] friends were still drinking and partying and stuff” and

that “he didn’t like to be around that kind of environment.” Mother admitted to using heroin

when pregnant and to using other illegal drugs and testified that she last used heroin about four

months before trial but denied using drugs at their house when she and Father were living

together, explaining that Father “kept an eye on [her] very well.” She testified that Father liked

to smoke marijuana but did not do it with her. Mother further testified that after they got back

together when she was pregnant, Father took care of her, she went to rehab, and her son also was

living with them. When asked about leaving the hospital when she was in labor, Mother testified

that she “was told [that Child] was fine” and “that there was no urgency for him to be delivered

that day.”

Concerning her living situation and plans, Mother testified that she was employed

and that if Child was returned to her, Child could live with her in a trailer. Mother, however, did

not comply with court-ordered services, including drug testing. She did not drug test after

September 2020, and she was arrested in December 2020 for burglary and possession of a

controlled substance and in March 2021 for theft at a Walmart. The police officer who arrested

Mother in December 2020 testified that they found drug paraphernalia, heroin, and

methamphetamine in her backpack. The officer who arrested and searched Mother in

March 2021 testified that he found the following items on Mother: stolen merchandise, a glass

5
pipe, a black-tar substance that was confirmed to be heroin, and pills that were confirmed to

be methamphetamine.

The Department’s representative, the attorney ad litem, and Foster Parents

testified that terminating parental rights was in Child’s best interest so that Foster Parents could

adopt Child. The evidence showed that Foster Parents loved, were bonded with, were taking

good care of, and hoped to adopt Child and that they had ensured that Child was receiving the

extensive medical care and therapies that he needed. Foster Parents, however, were willing to

have a conservatorship relationship with Child in their home if parental rights were

not terminated.

In its final decree and orders for conservatorship, possession, and

access, the trial court terminated Mother’s parental rights, finding that she knowingly placed or

knowingly allowed Child to remain in conditions or surroundings which endangered Child’s

physical or emotional well-being, engaged in conduct or knowingly placed Child with persons

who engaged in conduct which endangered Child’s physical or emotional well-being, and failed

to comply with court-ordered services, and that it was in Child’s best interest for Mother’s rights

to be terminated. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (2). The trial court did not

terminate Father’s parental rights or make predicate ground or best interest findings against him.

The trial court, however, found that the appointment of Father as Child’s permanent managing

conservator would not be in Child’s best interest “because the appointment would significantly

impair the child’s physical health or emotional development.” See id. § 153.131(a) (stating that

parent “shall be appointed” managing conservator of their child “unless the court finds that

appointment of the parent or parents would not be in the best interest of the child because the

appointment would significantly impair the child’s physical health or emotional development”).

6
The trial court appointed the Department as Child’s nonparent permanent

managing conservator and appointed Father and Foster Parents as possessory conservators. The

trial court also ordered that Father had the right to two hours of supervised visits weekly, see id.

§ 153.193 (allowing restrictions on parent’s possession and access that do not “exceed those that

are required to protect the best interest of the child”), with the possibility of expanding visits

with the “agreement of the child advocates.” Mother’s and Foster Parents’ appeals followed.

ANALYSIS

Mother’s Appeal

In her appellate issue, Mother argues that the trial court lost subject matter

jurisdiction to render a final order because it did not make the required findings under subsection

263.401(b) of the Family Code until after the initial dismissal date of June 28, 2021. 6 See Tex.

Fam. Code § 263.401.

Subsection 263.401(a) of the Texas Family Code provides for the automatic

dismissal of a suit filed by the Department requesting termination or conservatorship unless the

trial court has commenced the trial on the merits or granted an extension “on the first Monday

after the first anniversary of the date the court rendered a temporary order appointing the

department as temporary managing conservator.” Id. § 263.401(a). The statute allows one

extension that does not exceed 180 days from the one-year dismissal date if the trial court finds

that “extraordinary circumstances necessitate the child remaining in the temporary managing

6 After the initial dismissal date had passed, Mother filed a motion to dismiss that the
trial court denied. Mother then raised the issue that she raises here in a petition for writ of
mandamus, which this Court denied. See In re Page, No. 03-21-00456-CV, 2021 Tex. App.
LEXIS 8419, at *1 (Tex. App.—Austin Oct. 19, 2021, orig. proceeding) (mem. op.).
7
conservatorship of the department and that continuing the appointment of the department as

temporary managing conservator is in the best interest of the child.” Id. § 263.401(b).

The case was set for jury trial the week of May 17, 2021, but Father objected to a

Zoom videoconference jury trial and filed a motion for continuance and request that the court

extend the dismissal deadline pursuant to the Texas Supreme Court’s emergency orders

regarding the COVID-19 State of Disaster. See Thirty-Sixth Emergency Order Regarding the

COVID-19 State of Disaster, 629 S.W.3d 897 (Tex. 2021) (effective March 5, 2021); C.C.

v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00587-CV, 2022 Tex. App. LEXIS 2477,

*7, n.2 (Tex. App.—Austin Apr. 15, 2022, no pet.) (mem. op.) (listing Texas Supreme Court’s

emergency orders regarding COVID-19 State of Disaster). The case was reset for jury trial the

week of June 21, 2021.

During a permanency review hearing on June 15, 2021, that was held via

videoconferencing, the trial court orally extended the dismissal date at the Department’s request

and set a new dismissal date of December 27, 2021. Although the case was set for jury trial the

following week, it appeared that it would not be reached. The trial court advised the parties that

it had reviewed the court report in advance of the hearing; understood that the permanency plan

remained unrelated adoption and that the parents were not “currently engaged in services”;

informed the parties that it was extending the dismissal deadline; found that “there are

extraordinary circumstances that necessitate an extension of the dismissal deadline in this case,”

see In re G.X.H., 627 S.W.3d 288, 299 (Tex. 2021) (observing that trial court may make section

263.401 findings orally in presence of court reporter (citing Tex. Fam. Code § 101.026)); and set

the new dismissal date of December 27, 2021. Mother was not present for the June 15 hearing,

but her attorney participated in the hearing and did not object to the extension. The attorney

8
represented to the trial court that Mother reported that she had “begun drug treatment” and had

“a family member that she would like to have looked at as a possible placement.” Although the

trial court extended the June 28 dismissal deadline to December 27, it did not continue the trial

setting. The parties received notice the following Monday, June 21, that they could proceed to

jury trial that week, but Mother’s counsel asked for the trial to be reset.

On July 16, the trial court signed an order reflecting its ruling from the June 15

hearing to extend the dismissal deadline. In its order, the trial court ordered the dismissal date to

be December 27, set dates for the final hearing on the merits, and expressly made section

263.401(b) findings:

This Court finds that extraordinary circumstances necessitate the subject child,
[Child], remaining in the Temporary Managing Conservatorship of the
Department and that continuing the appointment of the Department as Temporary
Managing Conservator is in the best interest of the subject child.

See Tex. Fam. Code § 263.401(b).

Mother argues that the trial court automatically lost jurisdiction because it did not

make a best interest finding pursuant to subsection 263.401(b) prior to the June 28 dismissal date

and that its finding in the July order was too late to extend the dismissal deadline. Mother,

however, does not dispute that the trial court granted an extension prior to the initial dismissal

date. See id. § 263.401(a); In re G.X.H., 627 S.W.3d at 301 (concluding that “while a trial

court’s failure to timely extend the automatic dismissal date before that date passes—through a

docket-sheet notation or otherwise—is jurisdictional, claimed defects relating to the other

requirements of 263.401(b) are not,” and relying on trial court’s docket entry that “agreed

continuance” and “extension granted” before dismissal date to conclude that trial court did not

automatically lose jurisdiction even though it did not expressly make section 263.401(b) findings
9
prior to dismissal date). Mother did not raise her complaint about the lack of a best interest

finding until after the initial dismissal date had passed, and a jury trial could have commenced

before the initial dismissal date but was reset based on Mother’s attorney’s request. In this

context, Mother has not preserved her arguments for our review. See In re G.X.H., 627 S.W.3d

at 299 (“noting that “nothing in the record reflects the parents ever raised this complaint [about

lack of section 263.401(b) findings] in the trial court” (citing Tex. R. App. P. 33.1)).

We further observe that the trial court expressly stated on the record during the

June 15 hearing that “extraordinary circumstances” necessitated the extension, and the evidence

before the trial court supports an implied finding of best interest. See Tex. Fam. Code

§ 262.201(b); see also, e.g., R.C.C. v. Texas Dep’t of Fam. & Protective Servs.,

No. 03-21-00687-CV, 2022 Tex. App. LEXIS 4213, at *21 (Tex. App.—Austin June 22, 2022,

no pet. h.) (mem. op.) (noting that trial court already had found aggravated circumstances based

on child’s exposure to methamphetamine and citing section 153.002 of Family Code to support

implied best interest finding by associate judge when associate judge’s order made express

finding of “extraordinary circumstances” with reference to pandemic); D.J. v. Texas Dep’t of

Fam. & Protective Servs., No. 03-20-00454-CV, 2021 Tex. App. LEXIS 1565, at *25 (Tex.

App.—Austin Mar. 3, 2021, no pet.) (mem. op.) (implying necessary findings to support trial

court’s denial of section 263.401 motion (citing Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46,

53 (Tex. 2003))). The trial court could have relied on the facts that Child was removed from the

parents shortly after being born prematurely, testing positive for opiates, and showing symptoms

of drug withdrawal; that the parents were not engaged in services, and Mother had not been drug

testing since September 2020; and that at the time of the June 15 hearing, it appeared that the

jury-trial setting the following week would not be reached, requiring an extension to avoid the

10
automatic dismissal of the Department’s case and the return of Child to the parents when it

appeared unsafe to do so. Mother’s attorney also had represented to the trial court that she had

begun drug treatment and hoped to provide a possible placement for Child. On this record, we

overrule Mother’s issue. 7

Foster Parents’ Appeal

In two issues, Foster Parents argue that the trial court erred in finding that the

evidence was not legally and factually sufficient to support termination of Father’s parental

rights under section 161.001(b)(1)(O), see Tex. Fam. Code § 161.001(b)(1)(O), and that the

evidence was legally and factually sufficient to support a conclusive finding that termination of

Father’s rights was in Child’s best interest, see id. § 161.001(b)(2).

7 As support for her position that the trial court lost jurisdiction, Mother cites In re J.S.,
No. 05-21-00898-CV, 2022 Tex. App. LEXIS 1491 (Tex. App.—Dallas Mar. 3, 2022, pet.
denied) (mem. op.). In that case, our sister court dismissed the Department’s case because the
trial court did not make a finding of extraordinary circumstances prior to the initial dismissal
date, observing that the “supreme court has recognized only one situation in which the making of
the [section 263.401(b)] findings may be presumed.” See id. at *7 (emphasis added). But in that
case, there is no analysis about implied findings that are supported by the record or the
distinction between “best interest” and “extraordinary circumstances” inquiries. Cf. D.J.
v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00454-CV, 2021 Tex. App. LEXIS 1565,
at *25–27 (Tex. App.—Austin Mar. 3, 2021, no pet.) (mem. op.) (discussing what constitutes
“extraordinary circumstances” and focus of “extraordinary circumstances” and “best
interest” inquiries).
We also conclude that this Court’s recent opinion in S.W. v. Texas Department of Family.
& Protective Services, is factually distinguishable. See No. 03-22-00189-CV, 2022 Tex. App.
LEXIS 6748 (Tex. App.—Austin Aug. 31, 2022, no pet. h.). In that case, the trial court did not
expressly make an “extraordinary circumstances” finding at the hearing when it granted the
extension, “there was no mention at the hearing of how the extension would serve the children’s
best interest,” the permanency order following the hearing did not include the subsection (b)
findings, and it did not involve a consolidated case with the foster parents who also were seeking
termination and adoption. Id. at *7.
11
Standard of Review

“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); see also In re J.W., 645 S.W.3d 726, 740 (Tex. 2022) (“A

parent’s fundamental right to the care, custody, and control of his child is of constitutional

magnitude.”). The trial court may order termination of the parent-child relationship if clear and

convincing evidence supports that a parent engaged in one or more of the 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 also A.C. v. Texas Dep’t

of Fam. & Protective Servs., 577 S.W.3d 689, 697 (Tex. App.—Austin 2019, pet. denied). The

clear and convincing evidence standard is “that measure or degree of proof which 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.” In re C.H., 89 S.W.3d 17, 23 (Tex. 2002) (quoting State v. Addington,

588 S.W.2d 569, 570 (Tex. 1979)); see also Tex. Fam. Code § 101.007 (defining “clear and

convincing evidence”). “This heightened proof standard carries the weight and gravity due

process requires to protect the fundamental rights at stake.” In re A.C., 560 S.W.3d at 630;

see also In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002) (explaining that “[d]ue process requires

the application of the clear and convincing evidence standard of proof in parental

termination cases”).

In appeals involving the termination of parental rights, legal sufficiency review of

the evidence requires a court to look at all the evidence in the light most favorable to the finding

and consider undisputed contrary evidence to determine whether a reasonable trier of fact could

have formed a firm belief or conviction that its finding was true. In re A.C., 560 S.W.3d at 630–

12
31. “Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the

finding against all the evidence favoring the finding.” Id. at 631. “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. In reviewing the sufficiency of the

evidence, we must “provide due deference to the decisions of the factfinder, who, having full

opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the

credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); see also

In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (noting that witness credibility issues that depend

on appearance and demeanor “cannot be weighed by the appellate court; the witnesses are

not present”).

Because Foster Parents attack the legal sufficiency of an adverse finding on an

issue on which they and the Department bore the burden of proof, they “must demonstrate on

appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue.” In

re Q.M., No. 02-19-00367-CV, 2020 Tex. App. LEXIS 1442, at *4–5 (Tex. App.—Fort Worth

2020, no pet.) (mem. op.) (citations omitted). In this context, we will sustain such a legal

sufficiency challenge and reverse an adverse finding only if as a matter of law, the evidence

conclusively establishes the “contrary proposition” to the finding. Id. (citing In re M.I.A.,

594 S.W.3d 595, 601 (Tex. App.—San Antonio 2019, no pet.)). “In other words, [the Foster

Parents have to] conclusively establish that any reasonable trier of fact would have unavoidably

formed a firm belief [of a predicate ground] and that termination was in the best interest of the

child.” Id. Further, for factual sufficiency review in this context, we review the entire record

and determine whether the trial court’s failure to form a firm conviction or belief that a parent’s

13
rights must be terminated is “contrary to the overwhelming weight of the evidence and clearly

wrong.” Id.

Best Interest

Because it was Foster Parents and the Department’s burden to prove both a

predicate ground and that termination was in Child’s best interest, we limit our analysis to the

trial court’s best interest finding as it is dispositive. See In re A.V., 113 S.W.3d 355, 362 (Tex.

2003); see also, e.g., In re Q.M., 2020 Tex. App. LEXIS 1442, at *11 (affirming judgment that

denied Department’s petition to terminate parent’s rights because Department only challenged

statutory ground and not trial court’s implied finding that termination was not in child’s best

interest, which finding by itself would “warrant a denial of termination”).

“[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) (citing Tex. Fam.

Code § 153.131(b)). “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 should not have custody of her child;

[the Department] must meet the heightened burden to prove, by clear and convincing evidence,

14
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.)).

When deciding the best interest of a child, factors that courts consider include the

child’s wishes, the child’s emotional and physical needs now and in the future, emotional or

physical danger to the child now and in the future, the parenting abilities of the parties seeking

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

custody, the stability of the proposed placement, the parent’s conduct which may indicate that

the existing parent-child relationship is not a proper one, and any excuses for the parent’s

conduct. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also In re A.C.,

560 S.W.3d at 631; In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012). This list of factors is not

exhaustive, not all of them need to be proven to determine a child’s best interest, and analysis of

a single factor may be adequate in a particular factual situation. See In re C.H., 89 S.W.3d at 27;

Holley, 544 S.W.2d at 372.

Foster Parents argue that the evidence was legally and factually sufficient to

support a conclusive finding that termination of Father’s parental rights was in Child’s best

interest, and the Department agrees with them. The evidence was undisputed that Foster Parents

were dedicated, bonded, loved, and had taken very good care of Child during his entire life,

including ensuring that he received the necessary medical care and therapies that he needed. The

evidence also showed that Father intentionally: (i) did not comply with court-ordered services,

see In re E.C.R., 402 S.W.3d 239, 249–50 (Tex. 2013) (explaining that “[m]any of the reasons

supporting termination under subsection O also support the trial court’s best interest finding”

(citing In re C.H., 89 S.W.3d at 28)); (ii) did not visit with Child for several months during the

Department’s case; (iii) did not disclose his home address to the Department during the case; and

15
(iv) left the hospital with Mother when she was in labor against medical advice. Foster Parents

further characterize Father as having an unstable lifestyle and argue that Father showed bad

judgment, that his decisions were not in Child’s best interest, and that his refusal to drug test

during the Department’s case supports an inference of drug use. See In re W.E.C., 110 S.W.3d 231,

239 (Tex. App.—Fort Worth 2003, no pet.) (recognizing that fact finder could reasonably infer

that parent’s failure to complete scheduled screenings was because she was using drugs).

The trial court, however, did not place Child with Father but named him as a

possessory conservator with only supervised visitation, expressly finding that appointing him as

the permanent managing conservator would not be in Child’s best interest because “the

appointment would significantly impair the child’s physical health or emotional development.”

See Tex. Fam. Code § 153.131(a); see also In re J.A.J., 243 S.W.3d 611, 616–17 (Tex. 2007)

(distinguishing proof required to support termination decision from proof required to support

conservatorship appointment). In reaching its decision not to terminate Father’s parental rights

but to appoint him as a possessory conservator, the trial court found that the Department did not

meet the heightened burden to prove, by clear and convincing evidence, that Father should no

longer have any relationship with his child whatsoever, see In re D.L.W.W., 617 S.W.3d at 81,

but that the Department met its burden to prove by a preponderance of the evidence that Father’s

access and possession of Child should be limited, see Tex. Fam. Code § 105.005 (stating that

generally trial court’s findings should be based on preponderance of evidence); In re J.A.J.,

243 S.W.3d at 616 (stating that “finding that appointment of a parent as managing conservator

would significantly impair the child’s physical health or emotional development is governed by a

preponderance-of-the-evidence standard”).

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The Department argues that the trial court failed to adequately consider and weigh

that denying Father’s termination would result in Child being in long-term foster care. Foster

Parents, however, were also appointed possessory conservators, and the evidence showed that

the Department’s plan for Child was for Foster Parents to continue to care for Child and that

Foster Parents were willing to have a conservatorship relationship with Child in their home if

parental rights were not terminated. Further, it was the role of the trial court to assess the

witnesses’ credibility and weigh the evidence of Father’s lack of cooperation with the

Department and his decisions surrounding Mother’s pregnancy and birth with other evidence,

including that Father had cared for his stepson and provided a stable home during the stepson’s

childhood and cared for Mother when he found out she was pregnant. See In re A.B.,

437 S.W.3d at 503 (deferring to decisions of “factfinder who, having full opportunity to observe

witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of

witnesses”). The trial court could have found Father credible and believed his testimony about

his actions after finding out Mother was pregnant, including taking her to rehab for her drug

addiction and providing her with nutritious food, and after they left the hospital when Mother

was in labor, including continuing to care for and monitor her and seeking medical assistance

for her delivery. Father also was employed, and although Father did not stay in the same place,

he identified a family home in Elgin and the hotel where he stayed and worked as a

maintenance technician.

Applying the applicable standards of review, we conclude that the evidence was

not legally or factually sufficient to support a conclusive finding that it was in Child’s best

interest to terminate Father’s parental rights. See In re Q.M., 2020 Tex. App. LEXIS 1442, at

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*5–6; In re M.I.A., 594 S.W.3d at 601–02. Thus, we overrule Foster Parents’ second issue and

do not reach their first issue. See In re A.V., 113 S.W.3d at 362.

CONCLUSION

For these reasons, we affirm the trial court’s final decree of termination and

orders for conservatorship, possession, and access.

__________________________________________
Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed

Filed: September 16, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8207406. Public record. Not legal advice.