












In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-01-00854-CV
____________

IN THE INTEREST OF C.T.E. AND D.R.E.




On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 88992




O P I N I O N
          The Texas Department of Protective and Regulatory Services (TDPRS) filed
suit to terminate the parent-child relationship between C.T.E. and D.R.E., minor
children, and appellant, Terrell Green.  After finding that appellant  endangered the
physical or emotional well-being of his children and that termination was in the
children’s best interests, the trial court terminated appellant’s parental rights.  We
reverse and remand.
The Facts
          The evidence showed that appellant was convicted of possession of cocaine on
June 8, 1990, before either of his children was born.  He was paroled in 1991.  In
1993, after the first child was born, appellant was convicted of burglary of a coin-
operated machine and served 100 days in county jail.  His parole was not revoked. 
In 1994, after the second child was born, appellant’s parole was revoked after he pled
guilty to a misdemeanor assault committed against the children’s mother.  Appellant’s
undisputed explanation for the assault was that it resulted from an argument he had
with the children’s mother who he was trying to prevent from going into a drug place. 
D.R.E. has been in TDPRS’s care since December of 1994 and C.T.E. has been in
TDPRS’s care since February of 1995 with the exception of five months they spent
with their aunt in 1996.  Appellant was released from prison in April of 1999.  In
October of 1999 his parole was revoked again after he pled guilty to a Class B
misdemeanor, theft by receiving.  Although he was incarcerated during the June 4,
2001 trial, appellant had a parole review in October 2001 and would be mandatorily
released without parole in April 2002.
Procedural History
          On March 22, 1996, the trial court appointed Debra Evans, the children’s
paternal aunt, as sole managing conservator of appellant’s two children.  The trial
court found that appointing the parents as managing conservator would not be in the
children’s best interest.  
          In January of 1998, TDPRS filed a motion to modify the trial court’s order of
March 22, 1996.  TDPRS requested the termination of the parental rights of the
children’s mother and father.  TDPRS also requested that it be appointed as the
children’s sole managing conservator.  On June 10, 1998, the trial court terminated
the parental rights of the children’s mother, but it did not terminate the father’s
parental rights.  The trial court also removed Debra Evans and appointed TDPRS as
managing conservator.  
          On June 29, 2000, TDPRS filed a second motion to modify, requesting the trial
court terminate appellant’s parental rights.  After a trial to the bench, the trial court
terminated appellant’s parental rights.  
          In three points of error, appellant argues the following: (1) the trial court
improperly admitted evidence of appellant’s conduct that occurred prior to June 10,
1998; (2) the evidence was legally and factually insufficient to support the finding
that appellant  engaged in conduct which endangered the physical or emotional well-being of his children; (3) the evidence was legally and factually insufficient to find
that the termination of appellant’s parental rights was in the best interest of the
children.
Legal and Factual Sufficiency
          In his third point of error, appellant contends that the evidence is legally and
factually insufficient to show that termination of his parental rights was in the best
interest of his children.  When presented with legal and factual sufficiency challenges,
the reviewing court first reviews the legal sufficiency of the evidence.  Glover v.
Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981) (per curiam).  We follow
the usual standard in reviewing the legal sufficiency of the evidence.  Formosa
Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998)
(op. on reh’g). In re C.H., 45 Tex. Sup. Ct. J. 1000 (July 3, 2002), sets forth the
factual sufficiency standard of review for termination of the parent-child relationship
cases.  We determine whether the evidence is such that a fact-finder could reasonably
form a firm belief or conviction about the truth of the State’s allegations. Id. at 1005.
          Legal Sufficiency
          The applicable law in this case provides that the trial court can terminate
parental rights after a denial of a prior petition to terminate if:
(1) the petition under this section is filed after the date the order denying
termination was rendered,
 
(2) the circumstances of the child, parent, sole managing conservator,
possessory conservator, or other party affected by the order denying
termination have materially and substantially changed since the date that
the order was rendered, 
 
(3) the parent committed an act listed under Section 161.001 before the
date the order denying termination was rendered, and

                    (4) termination is in the best interest of the child.

Tex. Fam. Code Ann. 161.004(a)(1)-(4) (emphasis added). In his third point of
error, appellant takes issue with the trial court’s ruling regarding the fourth element.
          The law recognizes a strong presumption that the best interest of a child is
served by preserving the parent-child relationship.  Wiley v. Spratlan, 543 S.W.2d
349, 352 (Tex. 1976).  TDPRS has the burden to prove by clear and convincing
evidence that termination is in the children’s best interest.  In the interest of G.M.,
596 S.W.2d 846, 847 (Tex. 1980).  The Texas Supreme Court has provided a non-exclusive list of factors that may be considered in determining whether the
termination of a parent’s rights is in a child’s best interest. Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976).  These factors include (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 which may indicate that
the existing parent-child relationship is not proper, and (9) any excuse for the acts or
omissions of the parent.  Id. 
          The Holley factors are not exhaustive.  C.H., 45 Tex. Sup. Ct. J. at 1006. 
Moreover, the State need not prove all of the factors as a condition precedent to
parental termination, “particularly if the evidence were undisputed that the parental
relationship endangered the safety of the child.”  Id.  For legal sufficiency purposes,
we will consider only those factors that support the finding that termination was in
the children’s best interest.
          1. Acts and Omissions of the Parent

          TDPRS argues that the eighth Holley factor—acts or omissions of the parent
which may indicate that the existing parent-child relationship is not proper—is the
most compelling factor in this case.  TDPRS argues that the fact that appellant has
engaged in a continuous course of criminal activity shows that the existing parent-child relationship is not proper. As a result, appellant has been unable to raise his
children for the majority of their lives due to his confinement.
          Although appellant’s criminal history is a factor in determining the best interest
of the children, it is not dispositive.  Termination of parental rights should not
become an additional punishment for imprisonment for any crime.  In re D.T., 34
S.W.3d 625, 635 (Tex. App.—Fort Worth 2000, pet. denied).  Thus, in determining
the weight of this factor, we consider the expected length of appellant’s imprisonment
and whether it can be inferred from appellant’s criminal conduct that he has
endangered the safety of the children.  See id; see also In re C.H. at 1007 (holding
that proof of acts or omissions under section 161.001(1) of the Texas Family Code
may also be probative in determining the best interest of the child).  In the present
case, appellant expected to be mandatorily released without parole 10 months after
the trial, and appellant’s criminal conduct is not the type from which it can be inferred
that he has endangered the safety of his children.  Accordingly, it is necessary to
consider other Holley factors relevant to this case.
          2.  Programs Available to Assist Appellant That Will Promote the Best
Interest of His Children
          The fifth Holley factor—programs available to assist appellant to promote the
best interest of the child—also supports the finding that termination is in the best
interest of the children.  TDPRS argues that there are no effective programs that will
incentivize appellant to stay out of jail.  TDPRS argues that after appellant was
paroled in 1999 and signed a family service plan, he engaged in criminal behavior
thereby risking the opportunity for reunification with his children.  We agree that
ultimately, it is solely up to appellant to stay out of jail.
          3.  The Children’s Emotional Needs Now and in the Future
          In its third and final argument, TDPRS argues that appellant has never taken
care of the children’s special needs.  Appellant’s children have severe behavioral
problems that developed after they were placed in TDPRS’s care.  The children
receive weekly therapy and medication to modify their behaviors.  Both children are
being treated for attention deficit disorder.  One child is on an anti-depressant and a
mood stabilizer.  Because appellant has been unable to provide for the children’s
needs due to his imprisonment, it is uncertain whether he will be able to satisfy these
needs in the future.
          Viewing the evidence in the light most favorable to the decree, there is legally
sufficient evidence that the best interests of C.T.E. and D.R.E. would be served by
termination of appellant’s parental rights.
          Factual Sufficiency
          We review the factual sufficiency of termination findings by determining
whether the evidence is such that a fact-finder could reasonably form a firm belief or
conviction about the truth of the State’s allegations.  In re C.H., 45 Tex. Sup. Ct. J.
at 1005.  In determining whether the fact-finder has met this standard, we consider
all the evidence in the record, evidence in support of and contrary to the trial court’s
findings.  Id. at 1007-08.  Thus, we balance the factors presented in the legal
sufficiency argument against the evidence that militates against finding that
termination is in the children’s best interest.  In reviewing all the evidence, we also
keep in mind that TDPRS has the burden of proof in termination proceedings.   In the
interest of G.M., 596 S.W.2d at 847. We now consider the Holley factors that militate
against the trial court’s findings.  
          1.  TDPRS’s and Appellant’s Plan for the Children
          The sixth Holley act—TDPRS’ and appellant’s plans for the children—weighs
against termination of appellant’s parental rights.  Tanya Bryant, a caseworker for
TDPRS, testified that TDPRS’ long-term goal for the children was adoption.  
However, the children were not in an adoptive placement, and there was no evidence
to show that these children, given their behavioral problems and special needs, were
adoptable.  Moreover, TDPRS presented no evidence about the likelihood that the
children would be adopted by the same family.  
          The children’s situation in the case at bar is distinguishable from the child’s
situation at issue in C.H.  In C.H., the evidence showed that the child, C.H., had a
successful experience in foster care.  In re C.H., 45 Tex. Sup. Ct. J. at 1002. C.H. had
remained in the same foster home the entire time he had been in TDPRS care.  25
S.W.3d 38, 46 (Tex. App. – El Paso 2000), rev’d on other grounds, 45 Tex. Sup. Ct.
J. 1000 (Tex. 2002). Dr. Parks and Court Appointed Special Advocate volunteers
reported that C.H. was developing normally and was an emotionally stable, happy
baby.  45 Tex. Sup. Ct. J. at 1002.  Dr. Parks recommended that the parental rights of
C.H.’s father be terminated.  Id.  In addition, at the time the termination suit was filed,
C.H. was only two years old.  25 S.W.3d at 42.  The caseworker in charge of C.H.
testified that “C.H.’s age was the predominant permanency factor because a child his
age is very adoptable.”  Id. at 47.
          In contrast, C.T.E. and D.R.E. have been in and out of six and nine different
foster homes, respectively.  Appellant’s children were eight and 10 at the time of trial
and were suffering from severe emotional and behavioral problems.  Although Bryant
responded affirmatively to the question of whether children with special needs ever
get adopted, she clearly did not claim to have the same positive outlook as C.H.’s
caseworker.  
          Moreover, while in prison, appellant has taken steps to prepare himself to
reunite his family .  For example, he has completed two parenting courses, a drug
program, anger management classes, and job training classes in welding.  One of the
parenting classes, entitled “Papas and their Children,” is a participation program that
is designed to teach incarcerated parents how to interact with their children upon their
release.  Appellant sent a letter to Bryant asking her to allow his children to
participate, but received no response.  Appellant has also worked with inmates’
families and town children in various programs without supervision.
          2.  Stability of the Home
          Bryant testified that the children have been in a stable home since they have
been in the care and supervision of TDPRS.  Yet, it is undisputed that D.R.E. has
been in nine different foster homes in approximately six years.  Similarly, C.T.E. has
been in and out of six different foster homes in the approximately five years he has
been in TDPRS’ care.  The children do not have the stability that comes from being
with each other because TDPRS has placed them in separate homes.  While appellant
has not been able to provide a stable home for his children due to his imprisonment,
it is evident that TDPRS has likewise not been able to achieve this goal.
          3.  Emotional and Physical Danger to the Children
          The third Holley factor—emotional and physical danger to the
children—weighs against termination of appellant’s parental rights.  TDPRS has
failed to adequately protect the children from emotional and physical danger. 
Evidence presented at trial indicated that D.R.E. was sexually abused while in
TDPRS’s care.  And, as stated above, the children have been in and out of numerous
foster homes.
          There was no evidence that the children would be in emotional or physical
danger if appellant’s parental rights were not terminated.  Appellant’s criminal
behavior is not the type from which it can be inferred that the children will be in
emotional or physical danger.  Appellant’s criminal history is distinguishable from
the father in C.H. in three important respects. First, the father in C.H. was convicted
of a felony approximately two years before the termination suit was filed.  In re C.H.,
45 Tex. Sup. Ct. J. at 1002.  In contrast, 11 years had passed between appellant’s
felony conviction and the time this termination suit was filed.  Since his children’s
birth, appellant has been convicted of only misdemeanors.  He has been convicted of
only one offense, a Class B misdemeanor, since the trial court’s June 10, 1998 order
that did not terminate his rights.  Secondly, unlike the father in C.H., there is no
evidence that appellant is a drug addict or has dealt in drugs since his children’s
births.  Id.  This a not a situation where the evidence is undisputed that the parental
relationship endangered the safety of the children.  Id. at 1006.  Lastly, appellant,
unlike the father in C.H., is not serving a long prison sentence as to clearly not be
available to parent his children for several years.  Appellant expected to be
mandatorily released without parole just 10 months after the trial.  
          4.  The Children’s Desires
          TDPRS presented no evidence of the first Holley factor—the desires of the
children.
          5.  Appellant’s Relationship with his Children
          In addition to the Holley factors, the children’s relationship with their father
should be considered.  Appellant testified that he tried to set up visitation with his
children at least four or five times while he was on parole.  He stated that on several
occasions, Bryant was unavailable and, on one occasion, the foster mother was
unavailable.  Thus, appellant visited with his children only two times in 1999.  Bryant
testified that at least one of appellant’s children did not recognize him during the first
visit.  However, it is undisputed that Bryant told appellant that his children responded
better to him than to any other person.
Conclusion
          After considering all the evidence in relation to the Holley factors, we conclude
that the fact-finder could not have reasonably formed a firm belief or conviction that
termination of appellant’s parental rights was in the best interest of his children.  We
recognize that appellant’s criminal history is problematic and that there are no
effective programs that will teach appellant how to stay out of jail.  However, given
appellant’s progress, plans, and the nature of his criminal history, coupled with the
children’s unfortunate experience in TDPRS’s care, the fact-finder could not have
reasonably formed a firm belief that terminating the parental rights of the person with
whom the children have the best chance at a family, is in their best interests at this
time.  Accordingly, the evidence was factually insufficient to establish that the
termination was in the best interests of the children.
          We sustain appellant’s third point of error. Because our holding on appellant’s
third point of error is dispositive, we decline to address his other points.
          We reverse the judgment of the trial court and remand the cause to the court
below for further proceedings consistent with this opinion.  
 
                                                                                  Adele Hedges
                                                                                  Justice
 
Panel consists of Justices Hedges, Keyes and Duggan.

Publish.  Tex. R. App. P. 47.4.
