IN THE INTEREST OF AND v. <<

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Court of Appeals of Texas, Houston (1st Dist.).

IN THE INTEREST OF S.C.F. AND L.C.F., Children

NO. 01-16-00788-CV

Decided: March 30, 2017

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

DISSENTING OPINION

It is cardinal ․ that the custody, care and nurture of the child reside first in the parents ․[1 ]

In this accelerated appeal,2 appellant, F.C., challenges the trial court's order, entered after a bench trial, terminating his parental rights to his two minor children, S.C.F. and L.C.F (collectively, “the children”). In three issues, F.C. contends that the evidence is legally and factually insufficient to support the trial court's findings that he engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being 3 ; he failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the children 4 ; and termination of his parental rights is in the best interest of the children.5 Because the majority errs in holding that the evidence is legally and factually sufficient to support the trial court's finding that termination of F.C.'s parental rights is in the best interest of the children, I respectfully dissent.6

Background

On February 27, 2015, the Texas Department of Family and Protective Services (“DFPS”) filed a petition seeking managing conservatorship and termination of F.C.'s parental rights to the children.7

At trial, DFPS caseworker Jasmin Green testified that DFPS took the children into custody due to allegations related to their mother. Green explained that DFPS gave F.C. a Family Service Plan (“FSP”) and F.C. completed all of the requirements of his FSP, with the exception of the family-therapy requirement. Green, however, noted that “family therapy wasn't initially listed on” F.C.'s FSP and he and the children were currently attending family therapy. Green explained that the recommendation for F.C. to attend family therapy occurred after he completed individual therapy and at a time when DFPS was considering reunification of the children with F.C. At the time of trial, F.C. and the children had attended two family-therapy sessions.

Green further noted that F.C. attends visits with his children and those visits are “going well.” F.C. is bonded with the children, and although he did not live with the children before their removal from their mother's care, he did provide financial support for them and their mother. Green also noted that one of the children's older half-siblings had indicated to her that if the children were to be returned to F.C., “they would be okay with that.”

Carla Ramirez, an advocacy coordinator with Child Advocates Inc. (“Child Advocates”), testified that F.C. has expressed a desire to care for the children, but she presented conflicting testimony on whether or not the children wanted to live with their father. She noted that the children are doing well in their current placement, do not have any medical problems, and are attending school. Further, although she stated that it would be in the children's best interest to be in a stable home, she also stated that the children's current placement is not “a long term placement” and she would like to find them another placement.

Ramirez further testified that the children told her that F.C. “toma mucho, which means he drinks too much and they've seen him roll around on the floor fighting with [their mother].” And L.C.F. told her therapist that F.C. “smelt like alcohol” during “certain visits” that he had with the children. However, when Ramirez spoke to F.C. about this, he told her that he had “never fought and he doesn't drink because he's allergic.” F.C. also told Ramirez that “he has never drinked in his life and never had any legal issues.”

Ramirez also explained that F.C. “did have a protective order against him in 2013 from [the children's mother],” although the trial court admitted into evidence little detail concerning the circumstances surrounding the protective order.8 Ramirez noted that F.C. tested positive for alcohol use in September 2015 and cocaine use in July 2016. The children, however, had never seen F.C. use narcotics.

F.C. testified that he has “[n]ever [done] drugs in [his] life” and any positive narcotics-test results were false. He noted that he had “done everything” required by his FSP and is currently attending family therapy with the children.9 F.C. last saw the children the day before trial during a family-therapy session. He visits with them every two weeks, and after their therapy sessions, he takes the children to eat lunch. He opined that it is in the children's best interest to be returned to his care.10

Standard of Review

A parent's right to “the companionship, care, custody, and management of” his children is a constitutional interest “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982) (internal quotations omitted). The United States Supreme Court has emphasized that “the interest of parents in the care, custody, and control of their children ․ is perhaps the oldest of the fundamental liberty interests recognized by th[e] Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas Supreme Court has concluded that “[t]his natural parental right” is “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) (internal quotations omitted). Consequently, “[w]e strictly construe involuntary termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012).

Because termination of parental rights is “complete, final, irrevocable and divests for all time that natural right ․ , the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights.” Holick, 685 S.W.2d at 20. Clear and convincing evidence is “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 (Vernon 2014); see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the standard of proof is “clear and convincing evidence,” the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. In re J.F.C., 96 S.W.3d at 264–68.

Instead of requiring just more than a scintilla of evidence to support a finding, we, in conducting a legal-sufficiency review in a termination-of-parental-rights case, must determine whether the evidence, viewed in the light most favorable to the finding, is such that the fact finder could reasonably have formed a firm belief or conviction about the truth of the matter on which DFPS bore the burden of proof. Id. In viewing the evidence in the light most favorable to the finding, we “must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so,” and we “should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). However, this does not mean that we must disregard all evidence that does not support the finding. In re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, we must also be mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. Id. If we determine that no reasonable trier of fact could form a firm belief or conviction that the matter that must be proven is true, we must hold the evidence to be legally insufficient and render judgment in favor of the parent. Id.

Notably, a fact finder may not, from meager circumstantial evidence, reasonably infer an ultimate fact, one no more probable than another. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). This Court has explained that under the law of evidence, the term “inference” means,

[A] truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved ․

Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—Houston [1st Dist.] 1993, writ dism'd w.o.j.) (quoting Inference, BLACK'S LAW DICTIONARY (5th ed. 1979)). Thus, to “infer a fact,” one “must be able to deduce that fact as a logical consequence from other proven facts.” Id. In other words, there must be a logical and rational connection between the facts in evidence and the fact to be inferred. United States v. Michelena-Orovio, 702 F.2d 496, 504 (5th Cir. 1983), aff'd on reh'g, 719 F.2d 738 (5th Cir. 1983) (en banc). It is important to be mindful that “[w]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (alteration in original) (internal quotations omitted). And in regard to the sufficiency of evidence in circumstantial-evidence cases, one inference cannot be based upon another inference to reach a conclusion. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003). Conclusions based on such stacking do not constitute evidence. Id.

In conducting a factual-sufficiency review in a parental-rights-termination case, we must determine whether, considering the entire record, including evidence both supporting and contradicting the finding, a fact finder reasonably could have formed a firm conviction or belief about the truth of the matter on which DFPS bore the burden of proof. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). The higher burden of proof in parental-rights-termination cases alters the appellate standard of review: “[A] finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.” Id. at 25–26. In considering whether disputed evidence rises to the level of being clear and convincing, we must consider whether the evidence is sufficient to reasonably form in the mind of the fact finder a firm belief or conviction as to the truth of the allegation sought to be established. Cervantes-Peterson v. Tex. Dep't of Family & Protective Servs., 221 S.W.3d 244, 250 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We should consider whether the disputed evidence is such that a reasonable fact finder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266–67. “If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (internal quotations omitted).

Best Interest

In his third issue, F.C. argues that the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights is in the best interest of the children because he had “completed” the requirements of his FSP, except for the family-therapy requirement, his visits with the children were going “very well,” the children had “bonded with him,” and “[t]hroughout the trial, [DFPS] supported [him] and did not believe termination [of his parental rights is] in the best interest of his children.”

As the majority correctly emphasizes, a strong presumption exists that the children's best interest is served by maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). In determining whether the termination of F.C.'s parental rights is in the best interest of his children, we may consider several factors, including: (1) the children's desires; (2) the current and future emotional and physical needs of the children; (3) the current and future emotional and physical danger to the children; (4) the parental abilities of the parties seeking custody; (5) whether programs are available to assist those parties; (6) the plans for the children by the parties seeking custody; (7) the stability of the proposed placement; (8) the parent's acts or omissions that may indicate that the parent-child relationship is not proper; and (9) any excuse for the parent's acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re L.M., 104 S.W.3d at 647. The Holley factors are not exhaustive, and there is no requirement that DFPS prove all factors as a condition precedent to the termination of parental rights. See In re C.H., 89 S.W.3d at 27.

The majority relies on a few pieces of evidence to reach its holding that the evidence is legally and factually sufficient to support the trial court's best-interest finding. Specifically, the majority states: (1) F.C. had “ ‘never really lived with’ [the children] before they came into [DFPS] custody”; (2) F.C. delayed in beginning to meet the requirements of his FSP; (3) “[t]he children were ‘adamant’ that they preferred not to live with” F.C.; (4) “the children remember [F.C.] drinking alcohol and physically fighting with their mother”; (5) “[t]he children are in a foster placement together with their three half-siblings”; (4) the children's placement is “safe and drug-free,” they attend school, and DFPS supports their medical needs; (5) F.C. “proffered no basis for his decision[ ] to leave the children in an unsafe environment” with their mother; and (6) F.C. has used narcotics and has a “history of domestic violence.” Respectfully, the majority mischaracterizes the evidence.

In regard to the children's desires, the evidence is contradictory at best. Notably, neither child testified at trial. Ramirez, an advocacy coordinator with Child Advocates, did testify that the children did “[n]ot want to go” with F.C., but she also stated in the same breath that S.C.F. “want[ed] to go home [with F.C.] because he promised her a phone and a lap top.” S.C.F.'s desires cannot be reasonably discredited simply because she, as a seven year old, was excited about obtaining a telephone and a computer. In regard to L.C.F., Ramirez only testified, without explanation or description, that she “just kept going like this to me.” This statement provides no insight into L.C.F.'s desires. See In re E.N.C., 384 S.W.3d at 808 (“A lack of evidence does not constitute clear and convincing evidence.”).

Further, DFPS caseworker Green testified that the children are bonded with F.C. and their visits, which occur every two weeks, are “going well.” See In re Z.B., No. 07-16-00026-CV, 2016 WL 3922936, at *7 (Tex. App.—Amarillo July 12, 2016, no pet.) (mem. op.) (trial court's best-interest finding not supported by clear and convincing evidence where “children enjoyed their visits” with father); In re M.W.H., No. 13-12-00187-CV, 2012 WL 6808510, at *8 (Tex. App.—Corpus Christi Nov. 29, 2012, pet. denied) (mem. op.) (noting children happy when they spend time with their parents); In re W.C., 98 S.W.3d 753, 766 (Tex. App.—Fort Worth 2003, no pet.) (mother and children bonded, mother visited children frequently, and obviously cared for them). And one of the children's older half-siblings indicated to Green that if the children were to be returned to F.C., “they would be okay with that.” The record evidence of the children's desires is anything but clear and convincing.

In regard to the children's current and future emotional and physical needs, there is little to no evidence in the record. See In re E.N.C., 384 S.W.3d at 808 (“A lack of evidence does not constitute clear and convincing evidence.”). Ramirez's testimony indicated that at one time the children were seeing a therapist; however, the frequency and extent of their participation in therapy is not addressed in the record. Nor is it apparent whether or not the children are currently attending therapy outside of the family-therapy sessions that they attend with F.C. And there is no evidence that F.C. would be unwilling to comply with any continuing-therapy needs of the children or that he, in the past, had failed to meet the children's emotional or physical needs. See id. (no evidence children's needs would go unmet if they were returned to father); In re J.K.V., 490 S.W.3d 250, 257–58 (Tex. App.—Texarkana 2016, no pet.) (DFPS “did not present any evidence suggesting that [the child]'s needs would go unmet if he lived with [his father]”); In re W.C., 98 S.W.3d at 758 (no evidence presented regarding mother's failure to meet children's physical needs in past). Further, the record reveals that the children have no medical problems, and F.C. is actively engaged in attending family therapy with the children. See In re E.N.C., 384 S.W.3d at 808 (second Holley factor did not weigh in favor of termination where evidence did not show how children's needs differed from needs of any other children); In re J.K.V., 490 S.W.3d at 257–58 (same).

In regard to the current and future emotional and physical danger to the children, the majority states that “[t]he evidence of [F.C.]'s drug use and his history of domestic violence supports a finding that th[e] placement with [him] would put the children in emotional danger.” Notably, F.C. tested positive for cocaine use only once during the entire pendency of the case.11 Cf. In re J.N., 301 S.W.3d 429, 434–35 (Tex. App.—Amarillo 2009, pet. denied) (finding evidence insufficient to support trial court's finding termination of parental rights in best interest of child, despite parent testing positive for narcotics on two separate occasions). While any narcotics use by a parent is certainly not desirable, there is no evidence that F.C. was addicted to narcotics, had a history of narcotics use, or was ever convicted of a criminal offense related to the possession of or use of narcotics.12 Cf. In re G.N., No. 08-16-00077-CV, --- S.W.3d ---, 2016 WL 5121991, at *1, *4–5 (Tex. App.—El Paso Sept. 21, 2016, no pet.) (father had “history of substance abuse, including use of cocaine, marijuana, and opiates” and “a substantial criminal history which include[d] ․ four cases involving possession of drugs”; father did not address his “substance abuse issues” and “refused to be tested for drugs after a pipe containing cocaine was found in his vehicle”); In re A.C., 394 S.W.3d 633, 642 (Tex. App.— Houston [1st Dist.] 2012, no pet.) (“There is strong evidence in this case that the mother regularly used illegal drugs both during her pregnancy with the child and after undergoing a treatment program. ․ The mother admitted she had used drugs during her pregnancy even though she knew it might harm the child. She tested positive for drugs a month after the child was removed. And she used drugs even though that violated the conditions of her probation, resulting in her going to jail, away from the child.”). Further, Ramirez testified that the children had never seen F.C. use narcotics, and F.C. testified that he had “[n]ever [done] drugs in [his] life.” F.C.'s FSP also did not require him to participate in narcotics testing or treatment for narcotics use, nor did it indicate that narcotics use by F.C. was a concern of DFPS.

The majority also emphasizes that F.C.'s “history of domestic violence” indicates that the children will be placed in “danger.” However, again, there is little evidence in the record regarding the purported “domestic violence” that occurred at the hands of F.C. Ramirez testified that the children told her that they had seen F.C. “roll around the floor fighting” with their mother, and Ramirez stated that F.C. “ha[d] a protective order against him in 2013 from [the children's mother].” However, there is no evidence concerning the frequency or extent of the fighting between F.C. and the children's mother, there is little detail concerning the circumstances surrounding the protective order, and there are no allegations that F.C. ever violated the protective order or that the order is still in place. Nor is there evidence that F.C. has displayed violent tendencies, is aggressive, has anger issues, or that he has ever harmed a child. See In re J.N., 301 S.W.3d at 433–35 (evidence insufficient to support the trial court's best-interest finding where, although parent had history of being in abusive relationships, no evidence he physically abused child); cf. In re G.N., 2016 WL 5121991, at *1, *4–5 (evidence sufficient to support trial court's best-interest finding where father “violated protective orders,” became aggressive and angry when he did not take medication, and had criminal history, “which include[d] four assault charges, three of which involved injury to a family member”).

Further, while a trial court may measure a parent's future conduct based upon his conduct in the past, it is significant that DFPS has not presented any evidence of recent “domestic violence” issues that have plagued F.C. It is undisputed that F.C. has completed his FSP, with the exception of the family-therapy requirement, which required him to “create and maintain” a safe home for the children. And it is also significant to note that although F.C. may have engaged in a physical altercation with the children's mother in the past, F.C. and the children's mother are no longer in a relationship together, the children's mother suffers from schizophrenia, she is in Mexico receiving inpatient treatment at a mental hospital, and her parental rights to the children have been terminated. See In re J.K.V., 490 S.W.3d at 258 (despite father's admission of physical altercation with mother in past, finding evidence insufficient to support trial court's best-interest finding where parent's relationship had ended).

To the extent that the majority relies on the limited evidence of F.C.'s alcohol consumption to support the trial court's best-interest finding, it should be noted that the children only reported to Ramirez that, in their words, F.C. “toma mucho” and that he “smelt like alcohol” at “certain visits” with them. However, there is no evidence that F.C. was ever intoxicated around the children or has a history of alcohol abuse.13 See Laura T. v. Tex. Dep't of Protective & Reg. Servs., No. 05-98-00160-CV, 1999 WL 1095787, at *11 (Tex. App.—Dallas Dec. 6, 1999, pet. denied) (not designated for publication) (finding mother did not endanger child where no evidence her fiancé posed danger to child because of his drinking or was ever intoxicated around child); cf. In re D.V., 480 S.W.3d 591, 603–04 (Tex. App.—El Paso 2015, no pet.) (clear and convincing evidence supported trial court's best-interest finding where evidence clearly revealed mother's priorities as “drugs, alcohol, and an unstable and abusive environment”); In re I.G., 383 S.W.3d 763, 770, 773–74 (Tex. App.—Amarillo 2012, no pet.) (termination of parental rights in best interest of child where father “ticketed or arrested on at least ten occasions for public intoxication” and had history of alcohol abuse). Nor did Green or Ramirez testify that the children should not be returned to F.C. because of his purported alcohol use. See In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *4 (Tex. App.—Corpus Christi Feb. 28, 2013, pet. denied) (mem. op.) (counselor testified “no concerns about drugs or alcohol”). And F.C. specifically denied drinking when Ramirez raised her concern about his alcohol consumption.

In regard to F.C.'s parental abilities, F.C. has completed his FSP, with the exception of the family-therapy requirement, attended parenting classes, and participated in individual therapy.14 And at the time of trial, F.C. was actively engaged in family therapy with the children. In short, F.C. has availed himself of the services provided by DFPS and has “done everything” required of him. See In re J.A.S., Jr., 2013 WL 782692, at *9 (fourth Holley factor did not weigh in favor of termination where mother “availed herself of service provided by [DFPS], ․ set goals, and ․ bec[a]me motivated to accomplish those goals”).

In regard to the programs available to assist F.C., DFPS presented no evidence that F.C. would require assistance if the children were returned to him. In re E.N.C., 384 S.W.3d at 808 (“A lack of evidence does not constitute clear and convincing evidence.”); In re J.K.V., 490 S.W.3d at 258 (fifth Holley factor weighed against termination where DFPS presented no evidence father would require assistance if child were to live with him). Further, the record shows that F.C. had completed all the requirements of his FSP, with the exception of the family-therapy requirement. See In re M.W.H., 2012 WL 6808510, at *9 (“Mother's and Father's substantial compliance with the [FSP] shows a deep commitment to the goal of reunification, as opposed to parents who are non-compliant with their [FSPs] and termination is warranted.”); In re W.C., 98 S.W.3d at 766 (holding evidence insufficient to support trial court's best-interest finding where parent did “everything [DFPS] required of her”). And F.C. and the children were actively attending and participating in family-therapy sessions at the time of trial. Cf. In re B.J., No. 01-15-00886-CV, 2016 WL 1389054, at *12 (Tex. App.—Houston [1st Dist.] Apr. 7, 2016, no pet.) (mem. op.) (noting mother did not complete FSP requirements when considering programs available to assist mother); In re Z.B., No. 02-14-00175-CV, 2014 WL 5409103, at *9 (Tex. App.—Fort Worth Oct. 23, 2014, no pet.) (mem. op.) (finding mother's decision not to take advantage of DFPS services offered to her weighed in favor of termination being in child's best interest).

In regard to the plans for the children, Ramirez testified that the children's current placement is not “a long term placement” and she would like to find another placement for the children. Notably though, Ramirez provided no details regarding with whom or where that other placement might be or if a new placement for the children was even possible. See In re E.N.C., 384 S.W.3d at 808 (DFPS's only plan for children was “to leave [them] together with the same foster parents until they age out” and no evidence children's foster parents could provide for them in ways father could not); In re Z.B., 2016 WL 3922936, at *6 (trial court's best-interest finding not supported by clear and convincing evidence where counselor testified children needed permanent, stable home and could be adopted, but was unaware of any potential adoptive parents); In re J.A.S., Jr., 2013 WL 782692, at *10 (sixth Holley factor either neutral or weighed against termination of parental rights where DFPS's apparent plan was to leave child with same foster parents). In contrast, F.C. wants to care for the children with whom he has bonded and visits regularly. See In re J.N., 301 S.W.3d at 435 (“While [DFPS] need not prove definitive plans for the child's placement, ․ [there is] no compelling benefit that would be gained by severing the bond that exists between [the parent] and child at this time.”); In re W.C., 98 S.W.3d at 766 (“[T]he best interest standard does not permit termination merely because a child might be better off living elsewhere.”).

In regard to the stability of the proposed placement, the majority characterizes the children's current placement as “safe” and “drug-free,” and notes that “the children attend school.” Notably though, Ramirez testified that the children's placement is not “a long term placement” and she would like to find another placement for the children. Further, while the children's placement may be “safe” and “drug-free,” DFPS did not present evidence that the home the children would share with F.C. would be unsafe or not “drug-free.” And there is no evidence that the children would not attend school if they were to be returned to R.C. See In re E.N.C., 384 S.W.3d at 808 (“A lack of evidence does not constitute clear and convincing evidence.”); In re W.C., 98 S.W.3d at 766 (“[T]he best interest standard does not permit termination merely because a child might be better off living elsewhere.”). Further, it is undisputed in this case that F.C. completed all the requirements of his FSP, with the exception of the family-therapy requirement, and one of those requirements mandated that F.C. “create and maintain housing that is sanitary, safe, and free of hazards” for the children.

In regard to acts or omissions of F.C. that may indicate that the parent-child relationship is not proper, there is no evidence that F.C. has an unstable lifestyle, is an avid narcotics user, cannot provide a stable home for the children, is facing the potential of incarceration, or has wholly failed to comply with his FSP. See In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (listing considerations under “acts or omissions” prong of Holley factors); see also In re K.R.G., No. 01-16-00537-CV, 2016 WL 7368082, at *12 (Tex. App.—Houston [1st Dist.] Dec. 15, 2016, no pet.) (mem. op.) (same). Instead, here, the evidence shows that F.C. has complied almost entirely with his FSP, participated in individual therapy and family therapy, consistently attended visits with the children, and “create[d] and maintain[ed] housing that is sanitary, safe, and free of hazards” for the children. Cf. In re J.D., 436 S.W.3d 105, 121 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (mother convicted of narcotics possession, “jailed on more than one occasion,” failed to maintain stable housing, and child was victim of physical abuse while in mother's sole care); In re S.B., 207 S.W.3d at 887–88 (father potentially facing “long-term incarceration,” was an extensive narcotics user, had not completed any tasks on his FSP, and never attempted to contact children).

Finally, it is important to reemphasize that “[t]ermination of parental rights requires proof by clear and convincing evidence. [And] [t]his heightened standard of review is mandated not only by the [Texas] Family Code ․ , but also the Due Process Clause of the United States Constitution.”15 In re E.N.C., 384 S.W.3d at 802; see also In re J.F.C., 96 S.W.3d at 263–64. “[P]arental-rights termination impacts not only the fundamental liberty interests of the parent, but also the fundamental liberty interests of the child[ren] on whose behalf the State's action is initiated.” In re K.D., 471 S.W.3d 147, 167 (Tex. App.—Texarkana 2015, no pet.). “[U]ntil the State proves parental unfitness, the child[ren] and [their] parents share a vital interest in preventing erroneous termination of their natural relationship.” Santosky, 455 U.S. at 760, 102 S. Ct. at 1398. Simply put, while it is possible in this case that ultimately it is in the children's best interest for F.C.'s parental rights to be terminated, DFPS must “meet its burden of proof,” and here, “the evidence introduced at trial fails ․ to support” the trial court's best-interest finding. In re E.N.C., 384 S.W.3d at 809–10 (“[DFPS] is required to support its allegations against a parent by clear and convincing evidence; conjecture is not enough.”); see also In re R.N.G., No. 11-02-00084-CV, 2002 WL 32344622, at *5 (Tex. App.—Eastland Dec. 12, 2002, no pet.) (not designated for publication) (“[T]ermination of the parent-child relationship can only be justified by the most solid and substantial reasons.”).

It also must be noted that, at times during trial, DFPS stated that its goal was reunification of the children with F.C., not termination of F.C.'s parental rights. And at one point Child Advocates did agree with this goal. See In re M.W.H., 2012 WL 6808510, at *9. Further, the children's own ad litem expressed concern to the trial court that there was not “sufficient evidence to justify termination at this point.”

Viewing the evidence in the light most favorable to the trial court's finding, the trial court could not have formed a firm belief or conviction that termination of F.C.'s parental rights is in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001(b)(2). Accordingly, I would hold that the evidence is legally insufficient to support the trial court's finding that termination of F.C.'s parental rights is in the best interest of the children, sustain F.C.'s third issue in part, reverse the judgment of the trial court, and render judgment in favor of F.C. See id.; In re J.F.C., 96 S.W.3d at 266 (“Rendition of judgment in favor of the parent would generally be required if there is legally insufficient evidence.”). The majority errs in holding that the evidence is legally sufficient and affirming the trial court's judgment.

Further, to the extent that the majority holds that the evidence is factually sufficient to support the trial court's finding that termination of F.C.'s parental rights is in the best interest of the children, it fails to conduct a proper factual-sufficiency review of the evidence. The majority does not properly consider all of the evidence in a neutral light, including that which does not support the trial court's finding. See In re J.F.C., 96 S.W.3d at 266 (distinction in how evidence reviewed when appellate court is considering legal versus factual sufficiency of evidence); Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29 (Tex. 1993) (court of appeals must apply the correct legal standard in its review of evidence); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951) (courts of appeals commit reversible error in applying legal-sufficiency standard of review to answer questions of fact).

FOOTNOTES

1.   Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442 (1944).

2.   See TEX. FAM. CODE ANN. § 263.405(a) (Vernon 2014); TEX. R. APP. P. 28.4.

3.   See TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (Vernon Supp. 2016).

4.   See id. § 161.001(b)(1)(O).

5.   See id. § 161.001(b)(2).

6.   The majority also errs in holding that the evidence is legally and factually sufficient to support the trial court's finding that F.C. engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being. See id. § 161.001(b)(1)(E). However, the evidence is legally and factually sufficient to support the trial court's finding that F.C. failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the children. See id. § 161.001(b)(1)(O); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (“Only one predicate finding under section 161.001[ (b) ](1) is necessary to support a judgment of termination ․”); Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 618 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Thus, I address only the lack of evidence supporting the trial court's best-interest finding. See TEX. FAM. CODE ANN. § 161.001(b)(2).

7.   At the time of trial, S.C.F. was seven years old and L.C.F. was six years old.

8.   Although the majority implies that the protective order against F.C. remains in place, the record does not support the implication.

9.   Although the majority asserts that “the record shows [that F.C. provided] no employment or wage information ․ to [DFPS] in compliance with” his FSP, it is undisputed that F.C. completed his FSP, with the exception of the family-therapy requirement, and his FSP required him to provide DFPS with “[p]roof of income” and a list of “any and all sources of income for himself ․ each month.”

10.   The majority focuses on testimony that F.C. did not provide, noting he “did not testify about his means of supporting the children, his living situation, ․ his parenting abilities,” or “his decision to leave [the children] in their mother's neglectful care.” See In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012) (“A lack of evidence does not constitute clear and convincing evidence.”). However, F.C. did not have the burden to prove that his parental rights should not be terminated. Rather, DFPS had the burden to prove by clear and convincing evidence that F.C.'s parental rights should be terminated. See TEX. FAM. CODE ANN. § 161.001(b); see also In re K.A.S., 399 S.W.3d 259, 263 (Tex. App.—San Antonio 2012, no pet.) (“To terminate parental rights pursuant to section 161.001 of the Family Code, the Department has the burden to prove one of the predicate grounds in subsection [ (b) ](1) and that termination is in the best interest of the child.” (emphasis added)).

11.   The majority notes that F.C. “tested positive for marijuana” in August 2015. However, Ramirez testified that F.C. tested positive for “exposure” to marijuana.

12.   In fact, there is no evidence in the record that F.C. has ever been convicted of any crime.

13.   The majority refers to F.C.'s “positive tests for alcohol” as one of the justifications for the termination of his parental rights. However, Ramirez testified that F.C. only tested positive for alcohol once in September 2015, and the alcohol/narcotics-test results that were admitted into evidence at trial do not show that F.C. ever tested positive for alcohol use. And nothing in F.C.'s FSP shows that he was prohibited from consuming alcohol.

14.   The majority faults F.C. for not immediately completing the requirements of his FSP. However, the moment that F.C. completed his FSP seems irrelevant, especially considering that it is undisputed that he did complete his FSP, with the exception of the family-therapy requirement, by the time of trial.

15.   Again, it must be noted that the majority places great emphasis on what F.C. did not testify about, and in doing so, improperly implies that F.C. had the burden to prove that his parental rights should not be terminated. See In re E.N.C., 384 S.W.3d at 808 (“A lack of evidence does not constitute clear and convincing evidence.”); In re K.A.S., 399 S.W.3d at 263 (“To terminate parental rights pursuant to section 161.001 of the Family Code, the Department has the burden to prove one of the predicate grounds in subsection [ (b) ](1) and that termination is in the best interest of the child.” (emphasis added)).

Terry Jennings Justice

Jennings, J. dissenting.