                               Fourth Court of Appeals
                                      San Antonio, Texas
                                     DISSENTING OPINION
                                          No. 04-17-00666-CV

                       IN THE INTEREST OF R.M.P. and J.A.P., Jr., Children

                      From the 224th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016-PA-00286
                           Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: June 13, 2018

           Because I believe the Department failed to meet its burden of proving by clear and

convincing evidence that termination of Appellant’s parental rights was in the best interest of the

children, I respectfully dissent.

                                          EVIDENCE AT TRIAL

           I believe a thorough review of the evidence presented at trial is necessary to analyze the

best interest issue and to determine whether the Department met its requisite burden.

Removing Caseworker

           Bianca Martinez, an investigator for the Department, testified that on February 4, 2016,

she investigated an allegation that the children did not have appropriate supervision. She testified
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Appellant, their father, had been arrested 1 at his home at about 3:45 p.m. and there was no other

caregiver at the house to wait for the children to get off the school bus. Martinez spoke to

Appellant at the Bexar County Central Magistrate’s Office and asked him if there were other

relatives who could help with the children. Appellant did not know the whereabouts of his ex-

wife and the mother of his children, Roseanna. He told Martinez Roseanna was a drug addict and

that she was not involved with the children. Appellant told Martinez the children suffered from

seizures and required medication. He gave Martinez the keys to his house so that the medication

could be obtained. When Martinez arrived at the home, it appeared to have been broken into.

Roseanna was in the house. She refused to speak to Martinez and appeared to be intoxicated and

was very aggressive. Appellant was released from custody the same day and immediately picked

up the children. He agreed to not take the children home since Roseanna was there. The next day,

Martinez returned to the house to meet with Appellant. She observed Roseanna in front of the

house, yelling and screaming and throwing items at Appellant and Ruth.                            Appellant was

cooperative and answered Martinez’s questions. Appellant reiterated that Roseanna did not live

in the home, but the children told Martinez that Roseanna did live there and some of her belongings

were in the home. Martinez spoke to Ruth individually. Ruth told Martinez that her father tried

to touch her and according to Martinez she “made a statement involving rape.” Ruth also said she

had been touched inappropriately by a neighbor. At that time, Martinez obtained “exigent

removal” of the children due to Ruth’s allegation against her father.

        Martinez testified the Department has been involved with the family since 2008, and twice

offered family-based services, but did not find cause to remove the children.



1
 Appellant testified the charge was dismissed and there is nothing in the record to show he has any charges pending.
Appellant further stated he was “falsely arrested” because the authorities were looking for another man by the same
name. The Department offered no evidence regarding Appellant’s arrest or criminal record, if any.

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Father

           Appellant testified he has taken care of Ruth and John by himself since they were born.

Ruth started having “light seizures” when she was three or four years old. John also has “light

seizures” and has been diagnosed as autistic. Appellant has always taken the children to doctor’s

appointments and followed the doctors’ directions regarding administration of medication. Ruth

is in special education classes; Appellant was not sure why the school put her in special education

classes. Appellant raised five other children by himself; they are now grown. He denied using

drugs or alcohol. He stated that Roseanna has not been very involved with the family since their

divorce. She sees the kids once or twice a year, and Appellant does not allow her to visit if she is

“behaving bad.” He admitted that he allowed Roseanna to stay at his house one week after she

had surgery because she did not have anywhere else to go. He occasionally gives her a ride when

she needs one. While the children were in the Department’s care, he once took Roseanna on a

visit with John. Appellant testified the Department did not inform him that the children were not

permitted to have contact with Roseanna while in the Department’s care. 2

           On three to four occasions, Ruth claimed she was assaulted by other men. Each time,

Appellant took her to the hospital to be examined. No physical evidence of abuse was detected.

In 2008, when Ruth was about five years old, she was taken from Appellant’s fenced-in yard by a

“guy” or a neighbor in a van while Appellant was at the store and Roseanna was watching the

children. Appellant called the police and Ruth could not be found for two or three hours. In 2009,

the Department investigated an allegation that Appellant left Ruth unsupervised for an extended

period of time. In 2015, Appellant took Ruth to the hospital because he was informed that someone

had assaulted Ruth. Again, no physical evidence of abuse was revealed. Appellant was unaware



2
    The record is void of evidence that Appellant was ordered to avoid contact with the children’s mother.

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of the medical diagnoses made while the children were in the Department’s care; he stated he had

not spoken with the children’s current physicians.

        Appellant stated he believed Ruth falsely accused him of sexual abuse to get back at him

for trying to discipline her. He explained that he had threatened to call the Department when Ruth

was not behaving and that Ruth told Appellant that if he did, she would say that he had abused her.

Appellant testified he is not under a criminal investigation and has not been contacted by law

enforcement regarding the allegations made by Ruth.

        Appellant was concerned about the children’s placements by the Department after they

were removed from his care. According to Appellant, Ruth is not in good health, her hair is messy

and she has broken teeth. John gained a lot of weight while in the Department’s care, which made

it hard for him to breathe, and also has broken teeth. Appellant did not believe the residential

treatment center was a good environment for a child.

        Appellant stated he is in good health and does not use drugs; he last drank alcohol 40 years

ago. He is retired and receives a pension. The children each receive approximately $1,000 per

month from Appellant’s Social Security. Appellant stated he did not need that money for living

expenses because he received his own check. After the children were removed, Appellant was

forced to move to a trailer home because he could no longer afford rent for the house where he and

the children were living. If the children are returned to him, he plans to move to Bakersfield,

California where he has numerous cousins. He planned to stay at his cousin’s house until he could

find a house to rent.

Child’s Counselor

        LaDonna Harris, Ruth’s counselor, testified she sees Ruth weekly, and sometimes twice a

week, for counseling. Harris diagnosed Ruth with post-traumatic stress disorder, including



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depression and anxiety; depressive disorder with psychotic features; intellectual disability; and

bipolar disorder. Ruth takes medication for these disorders that was prescribed by her psychiatrist

but is still having problems. Harris explained that Ruth has the maturity of a seven-year-old.

Harris was not certain, but she believed Ruth had an IQ of 60. Ruth does not understand that

strangers can be dangerous and often engages in attention-seeking behavior. Because of this, Ruth

needs to be constantly supervised.

          Ruth has only had one visit with her father since she was removed from the home. She has

been able to talk to her father on the phone. Harris noticed that after a phone call with her father,

Ruth would start urinating on herself. When Harris asked Ruth why that happened, she said she

was nervous, or just forgot to go to the restroom. Ruth also told Harris “that she was scared

because she had said so many bad things that her dad did that wasn’t true.” Harris noted that Ruth

also urinates on herself at other times not related to phone calls with her father. But Harris clarified

that the first time she noticed the urination was after Ruth received a phone call from her father.

          When asked if Ruth suffers seizures, Harris stated, “Ruth tells me that she fakes the seizures

for attention.” Harris has asked Ruth what her fake seizures look like, and Ruth will demonstrate

on the spot, “fluttering her eyes and dazing off.” “And she’ll say, ‘Just like this, Ms. Harris.’”

Harris was then asked, “has [Ruth] indicated that she has faked or made up or lied about anything

else?” Harris answered, “she said that she lied about her dad touching her. And she said it wasn’t

true. She was mad at him.” Harris stated that in her opinion, Ruth “has not experienced sexual

abuse.”

          Harris opined that Ruth needs to have more visits with her father. Ruth told Harris she

wants to go home with her brother. In Harris’s opinion, Ruth is not ready to go home. Harris




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could not answer whether it was in Ruth’s best interest to have her father’s parental rights

terminated because “I don’t know anything about the dad.”

Father’s Counselor

        Victoria Caylor, a mental health counselor, testified that Appellant was referred to her for

individual therapy. Caylor is a Licensed Sex Offender Treatment Provider who offers counseling

to both victims and sex offenders. Caylor stated Appellant denied assaulting his daughter and said

that Ruth fabricated the story because she was mad at him because he would not allow her to see

her mother. Caylor discharged Appellant after nine sessions because she did not think he was

making any progress because he was in constant denial of the sexual assault allegation. Caylor

could not answer whether Appellant would be able to successfully and efficiently parent his

children because she had never seen him with his children.

Department Caseworker

        There was only one caseworker, Jennifer Munoz, assigned to the family for the entire 18-

month pendency of the case. Munoz testified that Ruth is currently 13 years old and placed in a

foster home in Killeen, Texas. The Department had only allowed Ruth to visit Appellant once

during the 18 months prior to trial. John is nine years old and is currently living in a residential

treatment center in Spring, Texas. She explained that a residential treatment center is a facility

where children with special needs who are on psychotropic medications are sent. Since his

removal, John has been in five placements in five cities, including a psychiatric hospital. John

showed a lot of aggression, including hitting other students and destroying property. John was

taking medication for seizures, ADHD, and autism at the time of removal. He is now on more

medication and has recently shown vast improvement in his behavior. At the time John was

brought into care, he was having trouble in school, including hitting others and throwing items.



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He was hospitalized at Clarity [Child] Guidance Center in 2014. Munoz stated that John would

react aggressively when told, “no.” Ruth’s issues in school were related to her “pseudo seizures”

and trouble focusing and concentrating. The school believed Ruth would benefit from counseling,

but to Munoz’s knowledge, Appellant did not engage a counselor for Ruth.

        Appellant visited his son monthly, often traveling hours to see John for a visit lasting only

30 minutes or one hour. Appellant only missed one visit, when he experienced car trouble. Munoz

stated the visits between Appellant and his son went well and there were no concerns. The

caseworker testified that the Department’s plan was for both Ruth and John to be adopted by Ruth’s

current foster mother. The current placement would like to keep the children long term but had

“not indicated a willingness to adopt the children.” John had not lived with a family since removal,

and it was unknown how he would adjust once placed in the foster home with Ruth. The

Department initially attempted to place John in the Killeen foster home, but he was removed after

one day because of his aggressive behavior.

        While in the Department’s care, the children experienced health problems. John gained a

lot of weight because he was overmedicated and the Department did not reassess his medical plan

until ordered to do so by the trial court. 3 Ruth exhibited self-harming behaviors such as cutting

herself. She also picked her nails and toenails to the point of bleeding. While in the Department’s

care, Ruth made an outcry of sexual abuse against a boy at the YMCA, but it was “ruled out.”

Both children would urinate on themselves at random times.

        A family service plan was created for Appellant. The goals of the service plan were for

Appellant to learn to use appropriate parenting practices and to meet the special needs of his

children. He was also to demonstrate the ability to provide the children a home free of abuse and


3
 The Honorable Associate Judge Richard Garcia, presiding judge of Bexar County Children’s Court, oversaw the
case and ordered the medical review.

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neglect and show future concern for their safety. According to Munoz, the Department did not ask

Appellant to admit to the allegations made by Ruth but expected him to “process that information.”

Munoz opined that although Appellant did complete all services, he did not meet the goal of

“process[ing] that information” and thus the Department alleged Appellant did not complete his

family service plan. He was unsuccessfully discharged from individual counseling by three

therapists, including Caylor. He attended all required therapy sessions but continued to deny the

allegations against him and was angry with the Department for taking his children away. He also

successfully completed two parenting courses, including a course on children with mental health

needs, and submitted to random drug tests, all of which were negative. Munoz stated Appellant

“was not able to verbalize what he learned” in the parenting courses. The caseworker had not

visited Appellant’s home since removal. She tried to schedule one visit but the date was not

amenable to her. Munoz acknowledged that Appellant was present at every court hearing.

        Munoz believed Appellant’s parental rights should be terminated because, in her opinion,

he has no knowledge of the mental health needs of the children; he lacks the knowledge of how to

properly care for the children; he has not demonstrated that he is able to meet the children’s special

needs; and he was discharged from three different professional counselors because he did not want

to address the reason why the children were removed. Munoz stated, “I believe it would pose a

threat to [Ruth] and [John] if they were placed with [Appellant.]” She stated there were several

instances in the past where Appellant was not supervising Ruth, which caused Ruth to engage in

“these alleged sexual behaviors with other individuals.” She continued, “there’s no doubt that

[Appellant] does love his children and the children love him, but it’s not in their best interest to be

placed with [Appellant].” When asked if her opinion had “something to do with” Appellant’s age

of 77, Munoz answered, “that can play a factor.”



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           On cross-examination, Munoz elaborated on her opinion that Appellant’s parental rights

should be terminated. She agreed that inadequate supervision had been an ongoing issue with the

family since 2008 and that Appellant believes his children are normal and do not require constant

supervision. Munoz believed that Roseanna was a danger to the children and that Appellant

allowed Roseanna to have contact with the children during the pendency of the case. 4 She stated

that in a few instances Roseanna was participating in the phone contact between Appellant and

Ruth.       She did not provide details, but merely stated “those phone contacts were very

inappropriate.” Roseanna also accompanied Appellant on a visit to John in Spring, Texas. Munoz

believed Appellant did not understand that the children should not be around Roseanna. She did

not believe Appellant had demonstrated that he could protect the children from future abuse or

neglect. She agreed that Appellant lacks a supportive network. The Department was unable to

find any of Appellant’s relatives who could help with the children. Munoz was surprised by

Appellant’s testimony that he planned to take the children to California if they were returned to

him. Appellant had never provided any information on relatives in California to the Department.

Munoz agreed that Appellant did not understand the nature of the conduct that placed his children

in harm’s way and had not met the goals of his service plan.

           When asked about the children’s desires, Munoz testified that John told her he wanted to

live with his sister and that his visits with his father go well. Ruth went back and forth as to

whether she wanted to visit with her father. Ruth told Munoz she wants to be with her brother.

Ruth said she loves to live with her foster mom, but Munoz also agreed Ruth was easily influenced

by “whoever’s paying attention to her at that time period.” Munoz did not believe Ruth had the




4
    Appellant’s service plan does not include a provision prohibiting the children to have contact with Roseanna.

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capacity to decide what was in her best interest. Munoz agreed that the children’s mother was not

currently a danger to the children since she was incarcerated and in failing health.

Children’s Pediatrician Prior to Removal

        Dr. Rebecca Houston is a pediatrician who saw each child on seven to eight occasions

between March 2014 and December 2015 prior to their removal by the Department. Dr. Houston

testified she never felt the need to contact the Department regarding the children’s welfare. The

children were well-kept and appeared to be sanitary. Dr. Houston treated John for significant

behavioral issues related to his autism and ADHD; she also addressed healthy eating due to his

obesity. She prescribed a medication for John’s autism and consulted with a neurologist on Ruth’s

seizures.   Dr. Houston also consulted with a psychologist regarding Ruth’s pseudo-seizure

disorder.   Dr. Houston believed Appellant was following her recommendations regarding

administration of the medication. When Dr. Houston recommended speech therapy for John,

Appellant was initially hesitant, but did decide to proceed with the therapy. Appellant regularly

maintained the children’s doctor visits and accompanied them to every visit. Dr. Houston agreed

that she would describe the children’s relationship with their father as caring and loving; she was

never concerned about their interactions. It appeared to Dr. Houston that the children’s medical

needs were being taken care of by Appellant. She believed Appellant recognized his children had

special needs and that he was addressing those needs as best he could.

Children’s Neurologist Prior to Removal

        Dr. August Saravia is a pediatric neurologist. He testified that he saw the children on

almost 40 occasions prior to their removal by the Department. He first saw Ruth for seizures in

July 2007, when she was four years old. In 2014, she was also diagnosed with pseudo-seizures.

Dr. Saravia prescribed multiple seizure medications to Ruth. Ruth was accompanied by her father



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to the visits. Dr. Saravia never saw anything during the visits that would have caused him to call

the Department. Appellant did not miss any appointments with Dr. Saravia and followed his

treatment recommendations. He believed Appellant was aware of and dealing with Ruth’s medical

needs; he was unable to say whether Appellant was aware that Ruth had “special needs.” Dr.

Saravia also treated John in 2015 and prescribed medication which can have behavioral side

effects, including aggression.

                                            ANALYSIS

        A trial court may order termination of the parent-child relationship only if the court finds

by clear and convincing evidence one or more statutory ground for termination and that

termination is in the children’s best interest. TEX. FAM. CODE ANN. §§ 161.001(b)(1), (2);

161.206(a) (West Supp. 2017). There is a strong presumption that keeping a child with a natural

parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re G.M., 596

S.W.2d 846, 846-47 (Tex. 1980). “Termination of parental rights is serious business. The law

requires clear and convincing evidence to sever the relationship between a parent and child and

due process demands that the State document a sufficient measure of evidence in the record to

support that outcome.” In re J.E.M.M, 532 S.W.3d 874, 891 (Tex. App.—Houston [14th Dist.]

2017, no pet.).

        In reviewing the legal sufficiency of the evidence to support the termination of parental

rights, the court must “look at all the evidence in the light most favorable to the finding to

determine whether a reasonable trier of fact could have formed a firm belief or conviction that its

finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re J.P.B., 180 S.W.3d 570,

573 (Tex. 2005). “[A] reviewing court must assume that the factfinder resolved disputed facts in

favor of its finding if a reasonable factfinder could do so.” In re J.F.C., 96 S.W.3d at 266. “A



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corollary to this requirement is that a court should disregard all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible.” Id.

        In determining whether the evidence in this case would permit a reasonable factfinder to

form a firm belief or conviction that termination of Appellant’s parental rights was in the children’s

best interest, we consider the nonexclusive Holley factors. These factors include: (1) the child’s

desires; (2) the child’s present and future emotional and physical needs; (3) any present or future

emotional and physical danger to the child; (4) the parental abilities of the individuals seeking

custody; (5) the programs available to assist the individuals seeking custody to promote the child’s

best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the

stability of the home or proposed placement; (8) the parent’s acts or omissions which may indicate

that the existing parent-child relationship is improper; 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 E.C.R., 402 S.W.3d

239, 249 n.9 (Tex. 2013). The Department was not required to prove all of these factors, and the

absence of evidence about some factors would not preclude the factfinder from reasonably forming

a strong conviction that termination is in the children’s best interest, particularly if the evidence

was undisputed that the parental relationship endangered the safety of the child. See In re C.H.,

89 S.W.3d 17, 27 (Tex. 2002). “Some cases, however, will present complex facts in which ‘paltry

evidence’ relevant to each Holley factor would not suffice to uphold a factfinding that termination

is required.” In re B.D.A., --- S.W.3d ---, No. 01-17-00065-CV, 2018 WL 761313, at *14 (Tex.

App.—Houston [1st Dist.] Feb. 8, 2018, no pet. h.) (Massengale, J., dissenting on reh’g) (citing In

re C.H., 89 S.W.3d at 27).




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Desires of the Children

        At the time of trial, Ruth was thirteen years old and John was nine. Neither child testified,

and according to the Department and the ad litem, Ruth was not competent to testify. The evidence

showed the children wanted to be with each other at all costs, whether that meant returning to

Appellant or staying in the Killeen foster home. But the Department could not guarantee that both

children would be adopted by the Killeen foster parent. The caseworker stated the children loved

their father and Ruth’s counselor stated she loved her father and needed family. I would conclude

this factor is neutral, weighing neither in favor of nor against termination of parental rights.

Children’s present and future emotional and physical needs and any present or future emotional
and physical dangers

        It was undisputed that both children suffer from physical and psychological disorders.

Both children have seizures; Ruth has a low IQ and many psychological conditions; John has

autism and behavioral challenges. Although the Department argued Appellant failed to recognize

that his children had “special needs,” two of the children’s physicians testified that Appellant

sought medical treatment for the children and followed doctors’ orders as far as medicating the

children and attending appointments for a significant period of time prior to removal. The

caseworker testified that on the day the children were removed, Appellant alerted the Department

his children needed their medications and allowed them to enter his house to retrieve the

medications.

        With regard to present and future emotional and physical danger to the children, the jury

heard evidence that Appellant once left the children with Roseanna and during that time, Ruth was

temporarily abducted. In addition, even though she later recanted, the jury was also presented with

evidence that Ruth had alleged Appellant assaulted her. Ruth’s counselor did not believe Ruth

had been sexually assaulted, and first noticed Ruth would urinate on herself after a phone call from

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her father, although she also noted Ruth did so at other unrelated times. According to Ruth, she

did so because she was nervous or just forgot to go to the restroom. John also urinated on himself

but there was also no evidence as to the cause. The Department presented evidence that it had

been involved with the family since 2008 due to concerns that Appellant did not know how to

“manage” his children, but the only allegation termed “reason to believe” was that Appellant’s

home was unsanitary. Nonetheless, the Department presented no evidence at trial about the

condition of Appellant’s home and no caseworker visited the home during the pendency of the

case. The Department generally alluded to Appellant being unable to handle John’s outbursts but

did not elaborate further. Neither Ruth’s counselor nor Appellant’s counselors offered evidence

of best interest since no one observed the children with Appellant. It was undisputed that Appellant

had sought treatment for the children’s physical and mental health needs since at least July 2007

when Ruth was first treated as a four year old. Given the paucity of evidence demonstrating that

conduct by Appellant would endanger the children, I would conclude this factor weighs against

termination of parental rights.

Parental abilities of the individuals seeking custody

        The Department hoped that both children would be adopted by Ruth’s foster mother but

admitted that the foster mother had not yet agreed to adopt either child. Ruth’s foster mother did

not testify and there was no testimony regarding her parenting abilities. Appellant testified that he

had cared for the children since they were infants and would continue to do so. He completed

parenting courses, including a course for special needs children. Evidence was presented from

Drs. Houston and Saravia that Appellant had and was able to take care of the children’s medical

and psychological needs and that there was no cause for concern regarding Appellant’s relationship




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with his children. By all accounts, Appellant’s visits with John were proper. This factor also

weighs against termination of parental rights.

Programs available to assist the individuals seeking custody to promote the child’s best interest

        It is undisputed that Appellant completed the requirements of his service plan, but the

Department claimed he was just going through the motions and did not “verbalize what he learned”

in the parenting courses and did not “process” the reasons for the Department’s involvement in

individual therapy. Appellant testified that he refused to admit he assaulted Ruth. Ruth’s therapist

testified that more visits between Ruth and her father would have been beneficial; however, the

Department did not allow for that to occur. Given the caseworker’s conclusory testimony, I believe

this factor also weighs against termination of parental rights.

Plans for children by those seeking custody / Stability of home or proposed placement

        Again, the Department hoped that both children would be adopted by Ruth’s foster mother

but admitted that the foster mother had not yet agreed to adopt either child. John had been housed

in a residential treatment center since he was removed from Appellant’s care, and there was no

testimony regarding the likelihood of him being adopted. Appellant testified he planned to take

the children to California where he has relatives to help him. Given the lack of evidence

demonstrating the children’s interests will be better served outside the family home, this factor

weighs against termination of parental rights.

Summation

        Reviewing the record in the light most favorable to the jury’s findings, I would conclude

the Department failed to meet its burden to establish by clear and convincing evidence that

termination of Appellant’s parental rights is in the children’s best interest. The record contains

undisputed evidence that Appellant completed his service plan, was drug-free, and maintained



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contact with the children, even traveling for hours to visit John. He visited Ruth on the one

occasion allowed him by the Department. Although the Department claimed Appellant’s failure

to “process” the reasons for the removal of his children meant that he did not meet the goals of his

service plan, I do not believe that such conclusory testimony from the caseworker amounts to clear

and convincing evidence of failure to complete a service plan. See In re A.H., 414 S.W.3d 802,

807 (Tex. App.—San Antonio 2013, no pet.) (“conclusory testimony, such as the caseworker’s,

even if uncontradicted does not amount to more than a scintilla of evidence”).

         The majority states that Appellant “failed to demonstrate he understood the children’s

special needs and was not able to verbalize what he learned in parenting classes.” It was not,

however, Appellant’s burden to prove anything at trial; to the contrary, the burden remained with

the Department to show by clear and convincing evidence that placing the children with Appellant

would harm or endanger them. See In re E.N.C., 384 S.W.3d at 808 (a lack of evidence

contradicting a finding does not constitute evidence supporting the finding).

         The evidence at trial did not conclusively establish actual emotional or physical danger to

the children, or that the parent-child relationship was improper. In fact, because the Department

did not allow Ruth to have but one visit with Appellant during the 18 months she was in the

Department’s care, there was little evidence about Ruth’s relationship with or interactions with her

father. Ruth’s counselor could not say whether it was in her best interest to terminate Appellant’s

parental rights because she had not been able to see Ruth interact with her father. The counselor

recommended that Ruth be permitted to have more visits with her father, but it does not appear

that the Department made reasonable efforts to facilitate the parent-child relationship. 5 Again, at

no time did the Department visit Appellant’s home after the children were removed.


5
 There is a strong presumption that a child’s best interests are served by maintaining the parent-child relationship.
See In re G.M., 596 S.W.2d 846, 846-47 (Tex. 1980).

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        In addition, it appears that the Department held Appellant responsible for the shortcomings

of his ex-wife. Almost all the exhibits proffered by the Department and admitted at trial pertained

to Roseanna’s criminal history. In addition, many of the Department’s prior interventions with the

family were precipitated by Roseanna’s actions or inactions; the other interventions were ruled out

due to cooperation by Appellant. In May 2008, Ruth was wandering around unsupervised and was

picked up by two teenagers when “[t]he mother was supposed to [be] watching the child.” In June

2008, family-based services were offered for two months but the case was closed because

Appellant “was able to provide his children with their medical and basic needs.” In 2009, a report

was made regarding neglectful supervision of Ruth, but the case was ruled out and closed. A

January 2014 complaint regarding Ruth’s acting out and seizure disorder was ruled out after Dr.

Saravia confirmed that Appellant made the effort to secure a psychologist for Ruth; Dr. Saravia

also confirmed there were no concerns and that Appellant has shown up to all appointments and

gave Ruth her medication regularly. A March 2014 complaint regarding John was ruled out after

it was recognized that John suffers from a behavior issue linked to cognitive processing. Appellant

let John “ride out” his tantrums and did not use physical discipline. A 2015 complaint regarding

unsanitary living conditions in the home was substantiated. The Department repeatedly criticized

Appellant for allowing Roseanna to participate in telephone conversations with the children or for

allowing her to accompany him on a visit with John. Appellant’s service plan, however, contains

no provision prohibiting Roseanna to have contact with the children.           In any event, the

Department’s fears of Roseanna spending time with the children are unfounded because she is

incarcerated and terminally ill. In sum, it appears that Appellant is parenting two children with a

host of health and behavioral problems. This would be a challenging task for any parent, let alone

a single parent.



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Dissenting Opinion                                                                    04-17-00666-CV


        Most troubling of all is that the Department did not establish that it has a permanency plan

in place for the children. “It was the Department’s burden to prove by clear-and-convincing

evidence that termination of the father’s rights was in the children’s best interests, but it ‘offered

no evidence regarding its plan for placement of the children,’ suggesting ‘it is as likely as not that

the children will remain in long-term foster care or even be separated’ if their father’s rights are

terminated.” In re B.D.A., 2018 WL 761313, at *14 (Massengale, J., dissenting on reh’g) (quoting

Horvatich v. Tex. Dep’t of Protective & Regulatory Srvcs., 78 S.W.3d 594, 602 (Tex. App.—

Austin 2002, no pet.)); see also In re A.J.L., No. 04-14-00013-CV, 2014 WL 4723129, at *1-5

(Tex. App.—San Antonio Sept. 24, 2014, no pet.) (mem. op.) (reversing on best interest where

Department admitted it had no definitive placement plans for the children); In re D.M., No. 04-14-

00858-CV, 2015 WL 3398379, at *5 (Tex. App.—San Antonio May 27, 2015, no pet.) (mem. op.)

(same). Ruth’s foster mother did not testify, and John had spent the entirety of the case living in

a psychiatric hospital and various residential treatment centers. The siblings desperately want to

be together, but the Department was unable to establish that such an outcome will occur.

                                           CONCLUSION

        Given that most of the Holley factors weigh in Appellant’s favor, I would conclude the

evidence presented at trial was insufficient to support the jury’s best interest findings. “The law

sets a high evidentiary bar for termination of parental rights. We do not alleviate the plight of

Texas foster children by lowering that bar and perpetuating diminished judicial expectations of the

proof that must be presented by the Department.” In re B.D.A., 2018 WL 761313, at *14

(Massengale, J., dissenting on reh’g). Accordingly, I would reverse the judgment of the trial court

and remand for further proceedings.

                                                   Rebeca C. Martinez, Justice



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