Opinion filed March 7, 2013




                                              In The


         Eleventh Court of Appeals
                                           __________

                                     No. 11-12-00273-CV
                                         __________

         IN THE INTEREST OF A.D.P., L.P., AND M.R.B., CHILDREN


                           On Appeal from the 106th District Court
                                    Dawson County, Texas
                             Trial Court Cause No. 10-10-18,468


                              M E M O RAN D U M O PI N I O N
       Appellant is the mother of A.D.P., L.P., and M.R.B.—girls born in 2005, 2008, and 2009.
The trial court entered an order terminating the parental rights of Appellant as to M.R.B. and the
parental rights of the fathers as to A.D.P., L.P., and M.R.B. In the same order, the trial court
awarded managing conservatorship of A.D.P. and L.P. to the Department of Family and
Protective Services and permitted Appellant to have supervised possessory conservatorship; it
did not terminate Appellant’s parental rights with respect to A.D.P. or L.P. Appellant filed a
notice of appeal; the fathers did not. We affirm in part and reverse in part.
                                               Issues
       Appellant presents six issues for review. In her first and second issues, Appellant asserts
that the evidence is legally and factually insufficient to support the finding that she
constructively abandoned M.R.B. In her third and fourth issues, Appellant challenges the legal
and factual sufficiency of the evidence supporting the finding that termination of her parental
rights is in the best interest of M.R.B. In the fifth and sixth issues, Appellant argues that the
evidence is legally and factually insufficient to support the trial court’s finding that appointing
either her or a relative as the managing conservator of A.D.P. and L.P. would not be in their best
interest.
                            Legal and Factual Sufficiency as to M.R.B.
         The termination of parental rights must be supported by clear and convincing evidence.
TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012). 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).
         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(1)(A)–(T) and that termination is
in the best interest of the child. Section 161.001. In this case, the trial court found that Appellant
had committed one of the acts listed in Section 161.001(1): that of constructive abandonment
pursuant to Section 161.001(1)(N). The trial court determined that Appellant had constructively
abandoned M.R.B. because M.R.B. had been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services or an authorized agency for
not less than six months and (1) the Department or authorized agency had made reasonable
efforts to return M.R.B. to Appellant, (2) Appellant had not regularly visited or maintained
significant contact with M.R.B., and (3) Appellant had demonstrated an inability to provide
M.R.B. with a safe environment. See id. § 161.001(1)(N). The trial court also found that
termination of Appellant’s rights was in the best interest M.R.B. See id. § 161.001(2).
         To support termination for constructive abandonment under Section 161.001(1)(N), it
must be shown that the Department or an authorized agency had been the managing conservator
of the child for not less than six months, that the Department or authorized agency had made
reasonable efforts to return the child, that the parent had not regularly visited or maintained
significant contact with the child, and that the parent had demonstrated an inability to provide the
child with a safe environment. In this case, the evidence showed that M.R.B. was born on
October 27, 2009. She had been under the managing conservatorship of the Department since
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December 10, 2010. M.R.B. had been placed in a foster home in the Dallas area in January
2011. The final hearing in this case was conducted on August 14, 2012. Appellant visited
M.R.B. only twice during this time period: once in December 2011 and once in January 2012.
Thus, Appellant failed to regularly visit or maintain significant contact with M.R.B. while she
was in the Department’s care. Evidence was introduced indicating that the Department made
reasonable efforts to work with Appellant. There was also evidence that Appellant allowed
“inappropriate” people around her children and was, thus, unable to provide M.R.B. with a safe
environment. The trial court’s finding under Section 161.001(1)(N) is supported by the record.
Appellant’s first and second issues are overruled.
       In her third and fourth issues, Appellant argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of Appellant’s parental rights to
M.R.B. is in M.R.B.’s best interest. 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.
       The record shows that the Department originally became involved in this case in
September 2010 based upon an allegation of neglectful supervision due to the environment in
Appellant’s home. According to the Department’s caseworker, there was no food, no water, and
no electricity in the home, and there was “drug use” by Appellant and other adults in the home.
The children were removed from Appellant’s care at that time. Prior to the final hearing in this
case, Appellant had completed her family service plan, had ceased testing positive for drugs, had
held a job almost three months, and had improved her housing situation. The home environment,

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however, was still concerning to the Department and to the children’s guardian ad litem because
Appellant continued to allow inappropriate people in her home and around her children.
       M.R.B. was born in October 2009. She was placed in a foster home in January 2011 and
remained in that same foster home at the time of the final hearing in August 2012. Appellant
saw M.R.B. only twice during this time period, and the children’s guardian ad litem noted the
lack of bonding between M.R.B. and Appellant. Testimony showed that M.R.B. had “a very
good bond” with her foster family and that her foster parents wanted to adopt M.R.B. The
guardian ad litem had observed M.R.B. in her foster home and believed that disruption of that
placement would not be in M.R.B.’s best interest.
       Based on the evidence presented at trial, the trial court could reasonably have formed a
firm belief or conviction that termination of Appellant’s parental rights would be in the best
interest of M.R.B. We cannot hold that the finding as to best interest is not supported by clear
and convincing evidence. The evidence is both legally and factually sufficient to support the
finding that termination of Appellant’s parental rights is in the best interest of M.R.B.
Appellant’s third and fourth issues are overruled.
                                Conservatorship of A.D.P. and L.P.
       In her final two issues, Appellant complains that the trial court erred in awarding sole
managing conservatorship of A.D.P. and L.P. to the Department because the evidence is legally
and factually insufficient to support the trial court’s finding under Section 263.404 of the Family
Code. TEX. FAM. CODE ANN. § 263.404 (West 2008). Section 263.404(a) provides that a trial
court may render a final order appointing the Department as a child’s managing conservator
without terminating parental rights if the court finds that (1) a parent’s appointment as managing
conservator “would not be in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional development” and (2) appointment
of a relative of the child or another person would not be in the child’s best interest. In deciding
whether to appoint the Department as a child’s managing conservator without terminating
parental rights, the trial court must take the following factors into consideration: (1) that the child
will reach eighteen years of age in not less than three years; (2) that the child is twelve years of
age or older and has expressed a strong desire against termination or being adopted; (3) that the
child has special medical or behavioral needs that make adoption unlikely; and (4) the needs and
desires of the child. Section 263.404(b).

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       The presumption that the best interest of a child is served by awarding custody to a
natural parent is deeply embedded in Texas law. Lewelling v. Lewelling, 796 S.W.2d 164, 166
(Tex. 1990). The statutory language found in Section 263.404(a), which requires a showing that
the appointment of a parent as managing conservator would significantly impair the child’s
physical health or emotional development, creates a strong presumption in favor of parental
custody and imposes a heavy burden on a nonparent. Id. at 167 (interpreting a different section
in the Family Code with the same language as Section 263.404(a)). Evidence showing that the
nonparent would be a better custodian of the child does not suffice. Id. The nonparent must
affirmatively prove by a preponderance of the evidence that appointing the parent as managing
conservator would significantly impair the child, either physically or emotionally. Id.; see also
In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Conservatorship determinations are subject to an
abuse of discretion standard on appeal. See J.A.J., 243 S.W.3d at 616.
       In this case, the Department offered no evidence that either A.D.P.’s or L.P.’s physical
health or emotional development would be significantly impaired if Appellant were appointed as
the managing conservator. Only three witnesses testified at trial: the Department’s caseworker,
the children’s guardian ad litem, and Appellant. The most damaging evidence against Appellant
related to the conditions in her home when this case was initiated and the fact that Appellant had
used drugs in the past. However, Appellant had remedied these issues long before the final
hearing in this case. From July 2011 (more than a year before trial) forward, all of Appellant’s
drug tests were negative. Appellant had completed all of the services required by her family
service plan and had obtained a job. She had rid herself of a violent boyfriend. Appellant had
rented a three-bedroom apartment with rooms and beds for A.D.P. and L.P.; she had lived there
for nine months at the time of trial.     The Department’s caseworker described Appellant’s
apartment as “decent”; the conditions and cleanliness of that apartment were acceptable. The
Department’s main concern in this case was that Appellant was involved with “inappropriate”
people. However, when the Department attempted a monitored return of A.D.P. and L.P. to
Appellant, the Department failed to have a safety plan in place regarding any such inappropriate
people or people with a criminal background being around Appellant and the children. After
three months, A.D.P. and L.P. were removed from the monitored return during a home visit by
the Department because there was not much food in the apartment and because there were
inappropriate people there. A man with a criminal history was in L.P.’s room with L.P. and was
unsupervised. The paternal grandmother of A.D.P. and L.P., who had a history involving drugs,
                                                5
and a paternal uncle were also at the apartment with Appellant and her children. The Department
belatedly had Appellant sign the safety plan for the monitored return on the same day as, and
immediately prior to, removal of A.D.P. and L.P. from the monitored return.
       The only evidence relating to the physical health of the children while in Appellant’s care
was that they had lice. The Department offered no evidence of any significant physical or
emotional impairment that would result from Appellant’s appointment as managing conservator.
While this case was pending, A.D.P. and L.P. were placed by the Department in seven different
homes or facilities and were ultimately placed in a “legal risk home” (a placement where the
foster parents desire to adopt foster children) in Austin, approximately 340 miles from
Appellant’s residence. The record shows that Appellant had no vehicle.
       The Department failed to offer legally or factually sufficient evidence to support the trial
court’s finding under Section 263.404(a) that the appointment of Appellant as the managing
conservator of A.D.P. and L.P. would significantly impair their physical health or emotional
development. Consequently, the trial court abused its discretion in rendering a final order
appointing the Department instead of Appellant as the managing conservator of A.D.P. and L.P.
Appellant’s fifth and sixth issues are sustained.
       We reverse the order of the trial court insofar as it awarded managing conservatorship of
A.D.P. and L.P. to the Department, and we remand the cause to the trial court for rendition of an
order appointing Appellant as the managing conservator of A.D.P. and L.P. and—unless
Appellant’s current circumstances have deteriorated to such a degree as to constitute a danger to
the health and safety of the children—returning A.D.P. and L.P. to Appellant’s care. See Shook v.
Gray, 381 S.W.3d 540, 543 (Tex. 2012) (remanding cause); Lewelling, 796 S.W.2d at 168-69 &
nn.9–10 (remanding for rendition). In all other respects, the order of the trial court is affirmed.
Any proceeding on remand to the trial court must be commenced within 180 days of this court’s
mandate. TEX. R. APP. P. 28.4.




                                                            JIM R. WRIGHT
March 7, 2013                                               CHIEF JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.


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