Opinion filed February 13, 2020




                                        In The


        Eleventh Court of Appeals
                                     __________

                                  No. 11-19-00259-CV
                                      __________

                  IN THE INTEREST OF T.J., A CHILD

                      On Appeal from the 91st District Court
                             Eastland County, Texas
                       Trial Court Cause No. CV1844944


                      MEMORAND UM OPI NI ON
      This is an appeal from an order terminating the parental rights of T.J.’s mother.
On appeal, the mother presents two issues in which she challenges the legal and
factual sufficiency of the evidence. We reverse and remand.
                        Termination Findings and Standards
      In the cause below, the Department of Family and Protective Services sought
to terminate the parents’ rights to T.J. and R.S. R.S.’s parents have not appealed, and
this opinion does not affect the order of termination as to R.S. T.J.’s father is
deceased. The trial court terminated the parental rights of T.J.’s mother, Appellant,
based upon findings made pursuant to Section 161.001(b) of the Texas Family Code.
See TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2019).1 The trial court found
that Appellant had committed five of the acts listed in Section 161.001(b)(1)—those
found in subsections (A), (C), (D), (E), and (O). Specifically, the trial court found
that Appellant had voluntarily left the child alone or in the possession of another not
the parent and expressed an intent not to return; had voluntarily left the child alone
or in the possession of another without providing adequate support of the child and
remained away for a period of at least six months; had knowingly placed or
knowingly allowed the child to remain in conditions or surroundings that endangered
the child’s physical or emotional well-being; had engaged in conduct or knowingly
placed the child with persons who engaged in conduct that endangered the child’s
physical or emotional well-being; and had failed to comply with the provisions of a
court order that specifically established the actions necessary for her to obtain the
return of the child, who had been in the managing conservatorship of the Department
of Family and Protective Services for not less than nine months as a result of the
child’s removal from the parent for abuse or neglect. The trial court also found,
pursuant to Section 161.001(b)(2), that termination of Appellant’s parental rights
would be in the best interest of the child. The trial court appointed the Department
as T.J.’s permanent managing conservator.
        In her first issue, Appellant challenges the sufficiency of the evidence to
support the findings made by the trial court pursuant to subsections (A), (C), (D),
(E), and (O). In her second issue, Appellant challenges the sufficiency of the
evidence with respect to the trial court’s best interest finding.

        1
         We note that the Department did not request that Appellant’s parental rights be terminated under
Section 161.004 of the Family Code. That section sets out the requirements for termination of “the parent-
child relationship after rendition of an order that previously denied termination of the parent-child
relationship.” FAM. § 161.004(a) (West 2014). Section 161.004 has been regarded as a mechanism through
which the Department may, upon proving a material change in the circumstances of an affected party, defeat
a parent’s claim of res judicata when the Department seeks termination after a prior petition seeking
termination was denied. In re K.G., 350 S.W.3d 338, 349 (Tex. App.—Fort Worth 2011, pet. denied).

                                                    2
      To terminate parental rights, it must be shown by clear and convincing
evidence that the parent has            committed     one of     the   acts   listed   in
Section 161.001(b)(1)(A)–(U) and that termination is in the best interest of the child.
Id. To determine if the evidence is legally sufficient in a parental termination case,
we review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the
evidence is factually sufficient, we give due deference to the finding and determine
whether, on the entire record, a factfinder could reasonably form a firm belief or
conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002).
      With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (1) the desires of the child, (2) the emotional and physical needs of the
child now and in the future, (3) the emotional and physical danger to the child now
and in the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.


                                           3
                                 Background Facts
      In August 2018 in the 91st District Court of Eastland County, the Department
filed an original petition for the protection of T.J. The Department subsequently
filed a motion to transfer the proceedings from another district court in which
continuing exclusive jurisdiction over T.J. had previously been established. The
91st District Court granted the Department’s motion and ordered that Cause
No. CV0504157 from the 35th District Court of Brown County be transferred to the
91st District Court of Eastland County. The appellate record, however, does not
contain any documents or orders regarding T.J. that may have been filed in Brown
County.
      At the time the Department filed the original petition in the 91st District Court
(the trial court), T.J.’s maternal grandmother was T.J.’s legal guardian and permanent
managing conservator. The record reflects that the Department removed T.J. from
the grandmother’s home after the grandmother overdosed on methamphetamine
while T.J. was in the grandmother’s care. Appellant had a strained relationship with
her mother and did not live in the home from which T.J. was removed. After T.J.’s
removal from the grandmother’s home, the trial court entered a temporary order,
which, among other things, set out certain requirements and services that Appellant
was required to perform in order to have T.J. returned to her care.
      Only three witnesses testified at the final hearing: the Department’s
conservatorship caseworker, the kinship provider with whom T.J. had been placed,
and the CASA supervisor. No exhibits were offered or admitted into evidence at the
final hearing. The caseworker testified about the grandmother’s overdose and about
the grandmother subsequently testing positive for methamphetamine while this
cause was pending in the trial court.         The caseworker also testified that the
grandmother failed to comply with the provisions of her court-ordered service plan.


                                          4
The Department requested that the trial court remove the grandmother as T.J.’s
permanent managing conservator.
      With respect to Appellant, the caseworker testified that Appellant also failed
to comply with the provisions of her court-ordered service plan. Appellant submitted
to two drug screens: one of which was negative and the other of which was unable
to be tested as it was “damaged in transport.” According to the caseworker,
Appellant had previously been in an abusive relationship, and the caseworker
expressed some reservations about the man with whom Appellant was “in a new
relationship” because he had been charged twice in the past with assaulting a family
member. Additionally, Appellant had moved twice while these proceedings were
pending, but the caseworker acknowledged that, at the time of the final hearing,
Appellant lived in a home that was appropriate for T.J. The caseworker requested
that the trial court terminate Appellant’s parental rights because T.J., who was then
fourteen years old, needed permanency.
      When he was removed from the grandmother’s home, T.J. was placed in a
kinship home. T.J. had done very well in that home. T.J. had previously expressed
a desire to stay in that home; however, as the date of the final hearing neared, T.J.
told the caseworker that he “might want to go live with his mother.” The caseworker
implied that T.J.’s change of heart may have had something to do with the
cancellation of the football program at the school in the town in which the placement
lived. The week before the final hearing, T.J. told the caseworker that he wanted to
live with Appellant. T.J. indicated that everything was good with the placement
family but that he “just wants a relationship with his mom.” The caseworker did not
believe that Appellant, “with her history,” was “appropriate”; she feared that placing
T.J. with Appellant would be detrimental to T.J. Appellant’s “history” was not
further detailed at the hearing. The caseworker recommended termination of
Appellant’s parental rights, but she did not advocate ceasing all communication
                                          5
between Appellant and T.J. because T.J. missed his mother and wanted to have a
relationship with her.
      Throughout the case below, Appellant had kept in contact with the Department
and had expressed a desire to regain custody of T.J. However, neither T.J. nor his
counselor had consented to Appellant exercising any visitation with T.J. until less
than three months prior to the final hearing. At that time, the counselor believed that
it was appropriate for T.J. to start having visitations with Appellant. Visitations
between Appellant and T.J. began less than three months before the final hearing.
Appellant subsequently asked the trial court for an extension of time to work her
services. The trial court denied Appellant’s request.
      The placement family expressed an interest in adopting T.J. but indicated that
they were willing to be T.J.’s permanent managing conservators and to continue to
foster “relationship building” between T.J. and Appellant if the trial court did not
terminate Appellant’s parental rights. The CASA supervisor testified that CASA was
not opposed to parental termination with respect to Appellant but that CASA’s
recommendation with respect to the relationship between T.J. and Appellant “would
more likely be PMC to the kinship placement and allow the family to facilitate that
relationship.”
                                       Analysis
      As we stated above, the termination of parental rights must be supported by
clear and convincing evidence. FAM. § 161.001(b). We note that, in its brief in this
court, the Department refers to matters included in an affidavit that was attached to
the Department’s original petition in this cause. That affidavit, however, was not
offered or admitted into evidence in this cause, nor did the affiant testify at the
hearing on termination. The affidavit cannot be considered by this court, nor could
it have been considered by the trial court, as evidence in this case. See In re M.G.,
585 S.W.3d 51, 57 (Tex. App.—Eastland 2019, no pet.); In re J.E.H., 384 S.W.3d
                                          6
864, 870 (Tex. App.—San Antonio 2012, no pet.). The evidence that was presented
in this case was lacking insofar as it related to Appellant. “Parental rights are ‘far
more precious than any property right,’ and when the State initiates a termination
proceeding, ‘it seeks not merely to infringe that fundamental liberty interest, but to
end it.’” In re E.R., 385 S.W.3d 552, 563 (Tex. 2012) (quoting Santosky v. Kramer,
455 U.S. 745, 758–59 (1982)). We carefully scrutinize termination proceedings, and
we strictly construe involuntary termination statutes in the parent’s favor. Id.
      The Department failed to present any evidence that Appellant voluntarily left
T.J. alone or in the possession of another, that Appellant expressed an intent not to
return, or that Appellant did not provide adequate support for T.J. Thus, the evidence
is legally insufficient to support the trial court’s findings under subsections (A) and
(C). See FAM. § 161.001(b)(1)(A), (C). With respect to subsection (D), the
Department failed to present any evidence that Appellant knowingly placed or
knowingly allowed T.J. to remain in conditions or surroundings that endangered T.J.
The Department also failed to present any evidence to support a finding under
subsection (E); nothing in the record indicates that Appellant engaged in any conduct
that endangered T.J. or that Appellant knowingly placed T.J. with someone who
engaged in conduct that endangered T.J. Accordingly, we hold that the evidence is
legally insufficient to support the trial court’s findings under subsections (D) and
(E). See id. § 161.001(b)(1)(D), (E).
      And, finally, the Department also failed to prove by clear and convincing
evidence that T.J. had been in the conservatorship of the Department “as a result of
[T.J.’s] removal from the parent under Chapter 262” for abuse or neglect. See id.
§ 161.001(b)(1)(O); see also id. §§ 262.001–.352 (West 2019). The record before
us reflects that T.J. was removed from his grandmother, who at that time was T.J.’s
legal guardian and permanent managing conservator. No evidence was offered to
show that T.J. was removed from a parent under Chapter 262 as required by
                                          7
subsection (O). While a parent whose rights are terminated based upon a finding
under subsection (O) need not be the offending parent, M.G., 585 S.W.3d at 57,
subsection (O) seems to require evidence that, at some point, the child was removed
from a parent under Chapter 262.         The language used by the legislature in
subsection (O) does not cover the situation in which a child is removed from a
conservator or a legal guardian who is not a parent. We note that, in other sections
of the Family Code, the legislature distinguished a “parent” from a conservator or
legal guardian. See, e.g., FAM. § 161.004 (permitting termination of parental rights
after rendition of an order that previously denied a request to terminate parental
rights if, among other things, the circumstances of the child, “parent, sole managing
conservator, possessory conservator,” or other affected party have materially and
substantially changed), § 262.109(a) (requiring notice “to each parent of the child or
to the child’s conservator or legal guardian” when the Department takes possession
of a child under Chapter 262).
      The Department cites In re B.C. as support for its assertion that the evidence
supports a finding under subsection (O). In re B.C., No. 04-14-00744-CV, 2015 WL
1938679, at *3–4 (Tex. App.—San Antonio Apr. 29, 2015, no pet.) (mem. op.). In
that case, the court found that the evidence was legally and factually sufficient to
support a finding under subsection (O) because, although the children were
subsequently removed from an aunt that was the children’s managing conservator at
the time of removal from the aunt, the “record and testimony at the termination
hearing reflect the children were originally removed from Mother pursuant to
Chapter 262 due to neglect because she left them home alone.” Id. at *3. Unlike the
record in B.C., the record in the present case does not contain any evidence about
any previous removal from Appellant under Chapter 262. We can find no authority
that would support a finding under subsection (O) based upon the record and the
circumstances in the case before us.
                                          8
        Because the evidence in this case is insufficient to support the findings made
by the trial court pursuant to Section 161.001(b)(1), we sustain Appellant’s first issue
on appeal. We do not address Appellant’s second issue as it is not dispositive of this
appeal. See TEX. R. APP. P. 47.1. This court’s ruling does not alter the trial court’s
appointment of the Department as T.J.’s managing conservator. See In re J.A.J., 243
S.W.3d 611, 615–17 (Tex. 2007).
                                          This Court’s Ruling
            We reverse the trial court’s order insofar as it terminated the parental rights
 of T.J.’s mother, and we remand this cause to the trial court for further proceedings.
 Any proceeding on remand must be commenced within 180 days of this court’s
 mandate. TEX. R. APP. P. 28.4(c).




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


February 13, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

                                                      9
