                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00046-CV




       IN THE INTEREST OF N.L.D., A CHILD




         On Appeal from the 354th District Court
                 Hunt County, Texas
                Trial Court No. 75,763




       Before Morriss, C.J., Carter and Moseley, JJ.
                Opinion by Justice Carter
       Dissenting Opinion by Chief Justice Morriss
                                            OPINION
        After a jury trial, the 354th Judicial District Court of Hunt County terminated Tamara

Haines’ parental rights to N.L.D. and appointed Jimmy and Angela Black, N.L.D.’s paternal

great uncle and great aunt, as N.L.D.’s sole managing conservators. Haines appeals the lower

court’s judgment and argues that the trial court erred (1) because Jimmy and Angela lack

standing and (2) because there is insufficient evidence to support the jury’s findings upon which

the termination and conservatorship orders were based. We affirm the trial court’s ruling that

Jimmy and Angela have standing and find that sufficient evidence supported the jury’s verdict

appointing Jimmy and Angela as managing conservators; however, we reverse the judgment

terminating Haines’ parental rights because the evidence was legally insufficient to support the

jury’s finding that termination was in N.L.D.’s best interest.

I.      Factual and Procedural Background

        N.L.D. was born December 20, 2008, and lived with her mother, Haines, until 2010. In

2010, Jimmy and Angela, jointly with Geraldine Black, N.L.D.’s paternal great grandmother,

filed a child custody action seeking the managing conservatorship of N.L.D. 1 Their petition

alleged that Haines had neglected and physically abused N.L.D. Haines appeared at the first

setting of a hearing on preliminary orders. The trial court reset the matter for August 12, 2010,

at which time Haines failed to appear. A hearing was conducted on August 12, 2010, and the

trial court appointed Geraldine, Jimmy, and Angela as temporary managing conservators of the



1
N.L.D.’s father, Robert Lee Dobbins, who was incarcerated at the time the petition was filed, consented to the
Blacks’ petition.

                                                      2
child, allowing Haines visitation with N.L.D. at such times as might be agreed between the

parties.

           Although Haines had been duly served with citation, she filed no written response to the

petition, and, after she failed to appear at the August 25, 2010, hearing, the trial court entered a

default judgment, taking judicial notice of the testimony from the August 12, 2010, hearing. An

order entered August 25, 2010, named Jimmy, Angela, and Geraldine sole managing

conservators of N.L.D. 2 Haines appealed the trial court’s order.

           On appeal, this Court reversed the trial court’s order and remanded the case for a new

hearing because Jimmy and Angela lacked standing as they were not related to N.L.D. within

three degrees of consanguinity and because Haines was not given notice of the August 25, 2010,

hearing. See In re N.L.D., 344 S.W.3d 33 (Tex. App.—Texarkana 2011, no pet.).

           On November 28, 2011, Haines answered the original petition. She also filed a counter-

petition against Geraldine seeking possession of N.L.D., managing conservatorship, and a

temporary restraining order. Haines alleged that Geraldine had a history of family violence

during the two-year period preceding the suit.                 In her attached affidavit, she alleged that

Geraldine had not allowed her to visit N.L.D. or speak with her on the telephone.

           Jimmy and Angela filed a petition to intervene, seeking conservatorship of N.L.D.

Jimmy and Angela alleged that they had standing because they had possession of N.L.D. in

excess of six months. Haines moved to strike the petition to intervene, arguing, in part, that

Jimmy and Angela lacked standing because they had no substantial past contact with the child.


2
    The order also named Dobbins the possessory conservator.
                                                          3
The trial court denied Haines’ motion to strike and held that Jimmy and Angela had standing to

intervene under Section 102.004(b) of the Texas Family Code.

       The case was ultimately tried to a jury, which resolved all questions regarding

termination and conservatorship in favor of Jimmy and Angela and against Haines. Geraldine

was not named as managing conservator. The trial court entered orders in accordance with the

jury’s findings.

II.    Standing to Intervene

       Haines contends that Jimmy and Angela lacked standing to intervene in this matter and

consequently, that the trial court erred in refusing to strike their petition to intervene.

Specifically, Haines argues that Jimmy and Angela “should not be allowed to bootstrap their

standing claim through the complicity and with the consent of one whose figurehead status as

Temporary Managing Conservator is adversarial to the mother, and whose status as Temporary

Managing Conservator is being actively contested.” We conclude the trial court did not abuse its

discretion in finding that Jimmy and Angela had standing.

       In determining whether the trial court improperly denied Haines’ motion to strike Jimmy

and Angela’s petition to intervene, we must decide if the trial court abused its discretion. See

Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990); In re

N.L.G., 238 S.W.3d 828, 829 (Tex. App.—Fort Worth 2007, no pet.) (per curiam). A trial court

abuses its discretion if it acts without reference to any guiding rules or principles or if it acts in

an arbitrary or unreasonable manner. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v.

Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). However, to the extent the trial court’s ruling

                                                  4
depends on an issue of statutory interpretation, we review de novo the court’s ruling. State v.

Shumake, 199 S.W.3d 279, 284 (Tex. 2006). “In construing a statute, our objective is to

determine and give effect to the Legislature’s intent.” See Harris Cnty. Hosp. Dist. v. Tomball

Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009) (citations omitted).

       As a general rule, an individual’s standing to intervene is commensurate with that

individual’s standing to file an original lawsuit. Whitworth v. Whitworth, 222 S.W.3d 616, 621

(Tex. App.—Houston [1st Dist.] 2007, no pet.). A party’s standing to file an original suit

affecting the parent-child relationship is governed by Sections 102.003 (general standing) and

102.004(a) (additional standing for grandparent/close relative) of the Texas Family Code. See

TEX. FAM. CODE ANN. § 102.003 (West Supp. 2012), § 102.004(a) (West 2008). Section

102.004(b) of the Texas Family Code provides a relaxed standing rule through which an

individual without standing to file an original suit for managing conservatorship may nonetheless

intervene in an ongoing suit. See TEX. FAM. CODE ANN. § 102.004(b) (West 2008); see also

Whitworth, 222 S.W.3d at 621 (noting Section 102.004(b) “applies to interventions seeking

managing conservatorships as well as those seeking possessory conservatorships”).             Under

Section 102.004(b),

       the court may grant a grandparent or other person deemed by the court to have
       had substantial past contact with the child leave to intervene in a pending suit
       filed by a person authorized to do so under this subchapter if there is satisfactory
       proof to the court that appointment of a parent as a sole managing conservator or
       both parents as joint managing conservators would significantly impair the child’s
       physical health or emotional development.

TEX. FAM. CODE ANN. § 102.004(b).


                                                5
        Haines does not contest that Jimmy and Angela had substantial past contact 3 with the

child; instead, she argues that they only have substantial past contact with N.L.D. because

Geraldine “simply left the child in the possession of Jimmy Black and Angela Black.” N.L.D.

had lived with Jimmy and Angela for at least one year prior to their petition to intervene, and

“satisfactory proof” supported a finding of impairment should Haines be appointed managing

conservator. 4 See TEX. FAM. CODE ANN. § 102.004(b). At the time of the intervention, the

“satisfactory proof” that appointment of the mother as managing conservator would impair the

child was on record with the trial court and had been approved by this Court in a prior appeal.

See N.L.D., 344 S.W.3d at 38–39. Much of that evidence was ultimately challenged during this

trial. While it would be preferable to conduct a hearing to develop more current information, the

finding that the parent’s appointment would impair the development of the child does not require

an “immediacy” determination. In re Vogel, 261 S.W.3d 917, 921 (Tex. App.—Houston [14th

Dist.] 2008, orig. proceeding). We do not believe the trial court abused its discretion in deciding

that Jimmy and Angela had standing. That finding, based on historical information, does not

affect our current decisions regarding termination and conservatorship; these latter decisions are

based on the evidence presented at the jury trial.

3
 The “substantial past contact” standard is not defined by statute or caselaw. In re C.M.C., 192 S.W.3d 866, 871
(Tex. App.—Texarkana 2006, no pet.). Our inquiry is fact-intensive and should focus on the amount of actual
contact. Id.; see also Chavez v. Chavez, 148 S.W.3d 449, 456 (Tex. App.—El Paso 2004, no pet.) (grandparents had
standing to intervene when children lived with them for over a year); In re A.M., 60 S.W.3d 166, 168 (Tex. App.—
Houston [1st Dist.] 2001, no pet.) (foster parents had standing when seventeen-month-old child resided with them
for fourteen months); In re M.T., 21 S.W.3d 925, 926 (Tex. App.—Beaumont 2000, no pet.) (foster parents had
standing to intervene after children lived with them for fourteen months); In re Hidalgo, 938 S.W.2d 492, 495–96
(Tex. App.—Texarkana 1996, no writ) (step-grandmother had standing to file petition for managing conservator
when she and child were close since child’s birth and child resided with her).
4
 A parent appointed as managing conservator of a child has numerous rights.        See TEX. FAM. CODE ANN.
§§ 153.073, 153.132 (West 2008).
                                                       6
        Haines’ primary argument concerning standing is that the trial court should not have

allowed conspiracy or conservatorship-by-proxy to establish standing under Section 102.004(b).

However, there is no good-faith requirement in the rules on standing or intervention. Haines

fails to cite any caselaw supporting her interpretation of the rules, and we are aware of none.

Accordingly, we overrule this point of error.

III.    Termination and Conservatorship—Standards of Proof and Appellate Review

        Conservatorship of a child includes the day-to-day management of the child. Many

decisions must be made by a parent or conservator on behalf of a child. Sometimes more than

one person shares these duties, particularly after a divorce when both parents are often named as

joint managing conservators. If circumstances require it, conservatorship of the child may be

changed. Even if one parent is not the named managing conservator, that parent generally has

access to and a relationship with the child. On the other hand, the decision to terminate parental

rights is final and permanent—the parent is completely excised from the child’s life and, of

course, the child has no relationship with the parent. The law sets a much higher evidentiary

requirement to authorize the termination of parental rights than for the selection of a conservator

of a child.

        In order to terminate the parent-child relationship, Section 161.001(1) of the Texas

Family Code requires a court to find that at least one of the nineteen criteria listed in that section

is satisfied. TEX. FAM. CODE ANN. § 161.001(1) (West Supp. 2012). Section 161.001(1) defines

with some precision parental conduct amounting to abandonment, neglect, or endangerment that




                                                  7
may justify termination. 5 Id. Additionally, there must be proof that termination is in the best

interest of the child. TEX. FAM. CODE ANN. § 161.001(2) (West Supp. 2012). In contrast,

Section 153.131(a) of the Texas Family Code, regarding conservatorship, imposes a more

general standard that does not enumerate specific acts or omissions by the parent, but instead

requires the court to find that appointing a parent would not be in the child’s best interest

because it would “significantly impair the child’s physical health or emotional development.”

TEX. FAM. CODE ANN. § 153.131(a) (West 2008). Clearly, the fundamental concern underlying

both conservatorship and termination proceedings are the same: the child’s ultimate well-being.

However, the evidence could be insufficient to support termination under the specific criteria of

Section 161.001 while at the same time supporting the determination that appointment of a

parent as conservator would impair the child’s physical health or emotional development for

reasons unrelated to the Section 161.001(1) criteria.

        Moreover, the quantum of proof required to support a termination decision differs from

the level necessary to support a conservatorship appointment. Termination decisions must be

supported by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp.

2012). Due process compels this heightened standard because terminating the parent-child

relationship imposes permanent, irrevocable consequences. Santosky v. Kramer, 455 U.S. 745,

759, 769–70 (1982); see also In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002). On the other

hand, a finding that appointment of a parent as managing conservator would significantly impair

5
 Termination may be justified if a parent voluntarily leaves the child in a nonparent’s possession with an expressed
intent not to return, TEX. FAM. CODE ANN. § 161.001(1)(A), if the parent has failed to support the child in
accordance with the parent’s ability for a specified period, TEX. FAM. CODE ANN. § 161.001(1)(F), or has engaged in
conduct that endangers the child’s physical or emotional well-being, TEX. FAM. CODE ANN. § 161.001(1)(E).
                                                         8
the child’s physical health or emotional development is governed by a preponderance-of-the-

evidence standard. TEX. FAM. CODE ANN. § 105.005 (West 2008); see Lewelling v. Lewelling,

796 S.W.2d 164, 167 (Tex. 1990). These differing proof standards, in turn, affect the method of

appellate review, which is more stringent for termination decisions than for those regarding

conservatorship. See J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

       A.      Standard of Review—Termination

       In evaluating the legal sufficiency of evidence supporting a termination, appellate courts

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.

J.F.C., 96 S.W.3d at 266. Appropriate deference to the fact-finder’s conclusions requires a court

conducting a legal sufficiency review to view the evidence in the light most favorable to the

judgment, assuming that the fact-finder resolved disputed facts in favor of its finding if a

reasonable fact-finder could do so. Id. A corollary to this requirement is that a court should

disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been

incredible. Id. This does not mean that a court must disregard all evidence that does not support

the finding. Id. Disregarding undisputed facts that do not support the finding could skew the

analysis of whether there is clear and convincing evidence. Id. The method employed to review

the evidence may be the major distinction between a legal versus a factual sufficiency review of

evidence when the standard is by clear and convincing evidence. In a legal sufficiency review,

we must consider the evidence in the light most favorable to the judgment, whereas, in a factual

sufficiency review we must review the evidence in a neutral light.

                                                9
        B.       Standard of Review—Conservatorship

        In contrast with termination, conservatorship determinations are subject to review only

for abuse of discretion and may be reversed only if the decision is arbitrary and unreasonable.

Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). 6                       Jury findings underlying a

conservatorship appointment are subject to ordinary legal and factual sufficiency review. See,

e.g., Corrales v. Dep’t of Family & Protective Servs., 155 S.W.3d 478, 488 (Tex. App.—El Paso

2004, no pet.). Under a legal sufficiency review, we consider only the evidence and inferences

that support a factual finding in favor of the party having the burden of proof in a light most

favorable to such findings and disregard all evidence and inferences to the contrary to determine

whether there is any probative evidence which supports the finding. Id. at 488. When reviewing

a claim of factually insufficient evidence, we must consider all of the evidence and determine

whether the jury finding or verdict is so contrary to the great weight and preponderance of the

evidence as to be manifestly unjust. Id. at 488–89.

        Because different standards apply, evidentiary review that results in reversal of a

termination order may not yield the same result for a conservatorship appointment. As the Texas

Supreme Court has said, 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.” C.H., 89

S.W.3d at 25.




6
 In a jury trial, a trial court may not render an order in contravention of the jury’s findings. TEX. FAM. CODE ANN.
§ 105.002(c)(1)(A) (West 2008).
                                                        10
IV.    Sufficiency of Evidence—Termination and Conservatorship

       In its answer to questions one through three, the jury found by clear and convincing

evidence that (1) Haines failed to support N.L.D. in accordance with her ability during a one-

year period ending within six months of the date of the filing of the petition for termination,

(2) Haines voluntarily left N.L.D. alone or in the possession of another without providing

adequate support for her and remaining away for a period of at least six months, and (3) Haines

knowingly placed N.L.D. in conditions or surroundings that endangered N.L.D.’s physical or

emotional well-being and knowingly allowed her to remain in such conditions or surroundings.

See TEX. FAM. CODE ANN. §161.001(1)(F), (C), (D). The jury also found that termination of

Haines’ parental rights and appointment of Jimmy and Angela as sole managing conservators

was in N.L.D.’s best interest.

       “Along with a best interest finding, a finding of only one ground alleged under Section

161.001(1) is sufficient to support a judgment of termination.” In re D.W., 353 S.W.3d 188, 194

(Tex. App.—Texarkana 2011, pet. denied) (citing In re A.V., 113 S.W.3d 355, 362 (Tex. 2003);

In re K.G., 350 S.W.3d 338 (Tex. App.—Fort Worth 2011, pet. denied)). Here, Haines fails to

challenge the jury’s finding regarding her failure to support N.L.D. in accordance with her ability

during a one-year period ending within six months of the date of the filing of the petition for

termination; therefore, we need not review her challenges to the sufficiency of the evidence

supporting the jury’s answers to the remaining questions because the jury’s finding on the first

question is sufficient under Section 161.001(1)(F) of the Texas Family Code. See TEX. FAM.

CODE ANN. § 161.001(1)(F).       However, Haines separately challenges the legal and factual

                                                11
sufficiency of the evidence supporting the jury’s finding that termination of her parental rights

and the appointment of Jimmy and Angela as sole managing conservators are in N.L.D.’s best

interest.   With one ground for termination being unchallenged (TEX. FAM. CODE ANN.

§ 161.001(1)(F)), we must affirm the termination if it is in the best interest of N.L.D. Because

Haines also challenges the sufficiency of the evidence supporting the trial court’s appointment of

Jimmy and Angela as sole managing conservators, we address the two issues together.

        Even though termination and conservatorship are reviewed under different standards, as

detailed above, the same factors apply when determining the best interests of the child. In

determining the best interests of the child, a number of factors have been considered, including

(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,

(6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or

omissions of the parent that may indicate the existing parent-child relationship is not a proper

one, and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d

367, 371–72 (Tex. 1976). 7

        The list is not exhaustive, but simply indicates considerations that have been or could be

pertinent. Id. However, the best-interest determination neither requires proof of any unique set

of factors nor limits proof to any specific factors. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—
7
 Some of these factors are more applicable to the issue of conservatorship than termination. For example, the
stability of the parent’s home is much more relevant to determining if the child should live in that home than to
deciding whether the parent-child relationship should be permanently severed. Brokenleg v. Butts, 559 S.W.2d 853,
857 (Tex. Civ. App.—El Paso 1977, writ ref’d n.r.e.). Often there is no relevant evidence presented that directly
addresses all of these issues.
                                                       12
Fort Worth 2001, no pet.). There is no requirement that the party seeking termination prove all

nine factors. C.H., 89 S.W.3d at 27. The analysis of evidence relating to one single factor may

be adequate in a particular situation to support a finding that termination is in the best interests of

the child. In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet.). Evidence

supporting the termination of parental rights is also probative of best interest. C.H., 89 S.W.3d at

28. A parent’s inability to provide adequate care for her child, lack of parenting skills, and poor

judgment may be considered when looking at the child’s best interests. In re C.A.J., 122 S.W.3d

888, 893 (Tex. App.—Fort Worth 2003, no pet.). Parental drug abuse is also a factor to be

considered in determining a child’s best interests. In re M.R., 243 S.W.3d 807, 820 (Tex.

App.—Fort Worth 2007, no pet.).

       Angela testified that N.L.D. had lived with them from August 2010, when N.L.D. was

about nineteen months old, through the time of trial in the spring of 2013. Jimmy and Angela

frequently had the child prior to August 2010 as well. Angela’s trial testimony raised several

significant issues/allegations that are relevant to both the issue of termination and

conservatorship. A summary of these issues/allegations follows:

       •   There was a span of one year and three months where Haines did not see N.L.D. at
           all, and she missed five visits with N.L.D. between November 2012 and the March
           2013 trial date. Haines answers that her visitation was limited to “mutual agreement
           only” and that she was refused any visitation for over a year. (CR at 34.)

       •   Haines contributed no money at all to N.L.D.’s support since August 2010.

       •   Haines threatened to knock out Jimmy and Angela’ car windows with a baseball bat.

       •   While Haines had the child, N.L.D. was frequently dirty or filthy. Haines denies this
           allegation.

                                                  13
       •   Haines allowed a person who had been incarcerated to babysit N.L.D.

       •   Angela has seen Haines with drugs or drug paraphernalia four or five times.

       •   Haines used fish hooks as ornaments on her Christmas tree in 2009.

       •   Haines allowed smoking around N.L.D. even though N.L.D. had cardiovascular and
           respiratory issues.

       •   Haines has a history of domestic violence with N.L.D.’s father, though Haines
           disputes the details of these episodes.

       •   Haines canceled and missed doctor’s appointments for N.L.D., though the medical
           records do not show a need for medical or surgical therapy.

       On cross-examination, Angela admitted that she did not call the Texas Department of

Family and Protective Services (Department) until Haines denied her access to the child. She

testified that Haines had a history of drug use and violence, but she did not know whether Haines

had “cleaned up.” Angela had never seen Haines smoke marihuana, but several times she had

seen Haines high on marihuana. Haines smokes tobacco products indoors; while Jimmy is also a

smoker, he does so outside.     Angela, herself, did not graduate from high school, but she

homeschools her sixteen-year-old son, and her twenty-four-year-old son still lives with them.

       Angela testified that when Haines refused her visitation with N.L.D. around February

2010, she called the Department and reported the marihuana use, drug paraphernalia, and

condition of the home.     Herbert Brister, a department employee, investigated Haines for

allegations of neglectful supervision and medical neglect as a result of the call from Angela. He

found her home to be clean, saw no drugs or paraphernalia, and opined that Haines was not high

at the time of his visit. According to Brister, her son seemed healthy, well-mannered, and well


                                               14
groomed. Brister also interviewed N.L.D.’s pediatrician. Brister’s investigation did not validate

any of Angela’s allegations, and the Department did not remove the children from Haines’

custody. Brister closed the department’s case in May 2010. This suit was originally filed in

August 2010.

       Following the August 25, 2010, hearing, for which Haines had no notice, Haines’

visitation with N.L.D. was restricted to “‘such times as might be mutually agreed between the

parties.’” N.L.D., 344 S.W.3d at 36. Haines asserts that Jimmy and Angela prohibited her from

visiting N.L.D. for over a year. In her testimony, Haines admitted to a drug history, caring for

N.L.D. after using a controlled substance, and encountering domestic violence problems with

N.L.D.’s father. She testified that she has been drug free for three and one-half years, that she

was in a good, stable relationship, and that she had successfully taken steps to handle her prior

legal troubles. Haines has another child, a thirteen-year-old son who is in fifth grade, for whom

she neither sought nor obtained child support. Even though she and her current boyfriend were

employed, she said she did not pay support to Jimmy and Angela because she felt like it was

paying ransom.

       On cross-examination, Haines admitted that she lied to a Department investigator about

cutting herself in the past, a prior arrest for marihuana use, and the existence of an arrest warrant

for failing to appear in California. She also told the investigator that she did not and would not

communicate with N.L.D.’s incarcerated father, but she admitted on the stand that she had

written him several letters telling him she wanted to reunite with him when he got out of jail.




                                                 15
She further admitted that in those letters, she lied to N.L.D.’s father about a miscarriage she

never had.

        Nancy Stark, an independent contractor appointed by the trial court, performed a social

study in this case. 8 Haines told Stark that she (Haines) loved marihuana. Stark testified that

Haines had chosen to have drugs as a part of her life and that she chose men with histories of

using and selling drugs. Stark was concerned that “after this is all over,” Haines would start

using again, though her current live-in boyfriend said he did not use drugs. Stark had no reason

to dispute Haines’ claim of being drug-free for three and one-half years, but Haines’ dishonesty

throughout the process did concern Stark. According to Stark, Haines missed about one out of

every four scheduled visits with N.L.D. Stark opined that this showed a lack of commitment on

Haines’ part.

        At the time of trial, Haines was living with her boyfriend, Stephen Van Dusen, and they

were expecting a child soon. In terms of space, their home could easily accommodate both

N.L.D. and the new child. Stark noted that Van Dusen “has been a positive force in Ms. Haines’

life.” Haines told Stark that she knew it would not be good for N.L.D. if she (Haines) got

pregnant, and Stark was disappointed to learn that Haines did get pregnant because it showed

insensitivity to N.L.D. and her needs.

        Stark pointed out numerous problematic factors with Haines that did or would have a

negative impact on N.L.D.’s physical and emotional development. Stark testified,

8
 The study is focused on the background of the parties to assist the trial court in determining conservatorship and
possession of the minor child. Recommendations were made on those issues, but the study did not specifically
address whether termination of parental rights was in the best interest of the child. In her courtroom testimony,
Stark opined that termination of Haines’ parental rights was not in the best interest of the child.
                                                        16
       Well, drugs foremost. Criminal behavior. Hooking up with men who are drug
       addicts, drug users, drug sellers. Both men that she was involved with before had
       a criminal history. Frequent moves from place to place. Living in different
       places, even in the same town a lot. [Haines’ son’s] lack of education. I mean,
       neglecting that education. Lack of child support, just to help support her. Not
       getting child support for [her son]. Just a history of bad decisions.

She recommended that Haines take random drug tests and, depending on the results of those

tests, Stark also recommended that Haines be appointed possessory conservator and be given a

gradually increasing amount of visitation.

       Jimmy and Angela have a history of being stable, healthy, and law-abiding. Haines

agreed that N.L.D. is “very bonded” with Jimmy and Angela, and Stark testified that Jimmy and

Angela are N.L.D.’s psychological parents. Haines and Stark agreed that it would be traumatic

to N.L.D. to take her away from Jimmy and Angela. Stark testified that Jimmy and Angela

“have made steady, stable kind of decisions for their family.”      Stark further testified that

“[Jimmy and Angela] were scared that [Haines] would take off with [N.L.D].”

       In Stark’s opinion, it was in N.L.D.’s best interest that Jimmy and Angela be named sole

managing conservators because of a “culmination of a lot of things that make me feel like . . .

[N.L.D.] would be compromised by going back to [Haines].” However, Stark did not believe

terminating Haines’ parental rights was in N.L.D.’s best interest because N.L.D. has a brother

and would soon have a sister as well, and a relationship with her biological siblings would be

meaningful to her life and important to her future development.

       A.      Conservatorship Decision

       As a parent, Haines is entitled to appointment as sole managing conservator of N.L.D. in

the absence of a finding that such would not be in N.L.D.’s best interest because it would
                                               17
significantly impair her physical health or emotional development. See TEX. FAM. CODE ANN.

§ 153.131(a). “[I]n an original proceeding for a conservatorship determination, even ‘evidence

that the nonparent would be a better custodian’ is insufficient to support the appointment of a

nonparent as managing conservator in preference to a parent.” In re M.T.C., 299 S.W.3d 474,

481 (Tex. App.—Texarkana 2009, no pet.) (quoting Lewelling, 796 S.W.2d at 167). “Rather, the

nonparent is required to ‘affirmatively prove by a preponderance of the evidence that

appointment of the parent as managing conservator would significantly impair the child, either

physically or emotionally.’” Id. (quoting Lewelling, 796 S.W.2d at 167).

       Here, there is sufficient evidence supporting the jury’s finding that Jimmy and Angela

should be appointed sole managing conservators. N.L.D., who was born December 20, 2008,

has lived the last three of her approximate five-year life with Jimmy and Angela. Together with

Haines’ history of drug use, irresponsibility, frequent moves, and bad judgment, the evidence is

sufficient for a reasonable jury to find by a preponderance of the evidence that appointing Haines

as the sole managing conservator, and thereby granting her the right to designate N.L.D.’s

primary residence, would significantly impair N.L.D.’s physical or emotional development. In

contrast, there is substantial evidence that Jimmy and Angela are stable, loving parents to N.L.D.

and that removing her from their care would be very detrimental to her health and well-being.

Therefore, we overrule Haines’ point of error as to conservatorship.

       B.      Termination Decision

       The more difficult issue in this case is whether it is in N.L.D.’s best interest that Haines’

parental rights be terminated. We are to strictly scrutinize termination proceedings in favor of

                                                18
the parent. In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (citing

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). Termination “‘can never be justified without

the most solid and substantial reasons.’” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)

(quoting State v. Deaton, 54 S.W. 901, 903 (Tex. 1900)); In re Shaw, 966 S.W.2d 174, 179 (Tex.

App.—El Paso 1998, no pet.). Again, in evaluating the propriety of the termination decision in

this case, we examine all the evidence in both the light most favorable to the jury’s finding (legal

sufficiency) and in a neutral light (factual sufficiency) to determine whether a reasonable trier of

fact could have formed a firm belief or conviction that termination of Haines’ parental rights was

in N.L.D.’s best interest. TEX. FAM. CODE ANN. § 101.007 (West 2008); see J.F.C., 96 S.W.3d

at 266; C.H., 89 S.W.3d at 25.

        Prior to August 2010, the Department investigated Haines based upon allegations that

largely match the testimony produced at trial, including Haines’ drug use, domestic violence,

neglect of N.L.D.’s medical condition and physical health, and provision of an unsafe home

environment. Whereas most termination cases result from such an investigation and involve the

Department, which has standards and guidelines to follow prior to attempting termination, this

case was not accepted by that agency and is a private dispute. 9 N.L.D. was neither removed

from the home by the Department, nor was she placed under governmental supervision, because

the investigation did not validate the allegations; rather, the investigator found no evidence of

drugs, a clean house, and healthy, well-groomed children. N.L.D.’s physician was interviewed,

and no medical neglect was noted by the investigator.

9
 Additionally, no attorney ad litem, guardian ad litem, amicus attorney, or Court-Appointed Special Advocate
volunteer was appointed on behalf of N.L.D. in this case.
                                                    19
        There is no evidence of domestic violence or arrests after August 2010; the primary

evidence favoring termination of Haines’ parental rights is her admitted history of drug use.

Haines testified that she has been drug free for more than three years, and while a jury might be

skeptical of that testimony, there was no evidence contrary to Haines’ testimony. Angela did not

know whether Haines remained drug free after August 2010, and Stark had no reason to dispute

Haines’ claim. Evidence that a person has recently improved her life weighs against a finding

that termination is in the best interest of the child. In re K.C.M., 4 S.W.3d 392, 396–39 (Tex.

App.—Houston [1st Dist.] 1999, pet. denied). Stark’s report confirms that Haines is employed,

has a decent home life, a home environment that can accommodate more children, and an

employed, live-in boyfriend that is a positive influence on her life.                        The social study

acknowledged Haines’ history of marihuana usage and raised a concern that it might recur;

however, the study did not recommend termination. According to Stark’s testimony and her

social study, termination was not in N.L.D.’s best interest because N.L.D.’s emotional and

psychological development would benefit from knowing and having contact with her mother,

brother, and soon-to-arrive baby sister. 10

        We recognize that the evidence supporting a ground of termination may also support a

finding that termination is in the best interest of the child. In re D.M., 58 S.W.3d 801, 814 (Tex.

App.—Fort Worth 2001, no pet.). It is undisputed that Haines did not support the child while

she was in the custody of Jimmy and Angela; accordingly, the jury finding on that issue is

10
  “However, the Blacks cannot ignore or dismiss the fact that [N.L.D.] has a biological family. For [N.L.D.’s] sake
they need to try and work with Ms. Haines in a respectful and cordial manner so that [N.L.D.] can live in peace
between the two families. No matter the outcome of this lawsuit[, N.L.D.] loves everyone and deserves the
opportunity to have a safe and happy relationship with all the important people in her life.”
                                                        20
sufficient to satisfy the grounds for termination. Haines testified that she did not financially

support N.L.D. because she felt as if she were paying ransom. For this, we agree that Haines

acted irresponsibly and perhaps without good judgment or even advice, but this ground alone

would not be sufficient to justify a finding that termination was in the best interest of the child.

Id. (“there are also those cases where the best interest determination must have a firm basis in

facts standing apart from the offending behavior”); In re M.A.N.M., 75 S.W.3d 73, 79 (Tex.

App.—San Antonio 2002, no pet.) (finding of failure to support child not so egregious, on its

own, to warrant finding that termination is in child’s best interest).

         The jury found that Haines voluntarily left the child alone or in the possession of another

without providing adequate support for the child and remaining away for a period of at least six

months. There is no evidence to support a finding that Haines “voluntarily” left her child with

Jimmy and Angela. Jimmy and Angela obtained possession of the child as a result of court

intervention; Haines has objected to Jimmy and Angela’s continued possession of the child. This

finding yields no support to the jury determination that termination was in the best interest of the

child.

         The jury also found that Haines placed the child in conditions or surroundings that

endangered N.L.D.’s physical or emotional well-being. There is disputed testimony that Haines

failed to take N.L.D. to needed medical appointments, that three and one-half years ago she used

marihuana, and that she formerly lived with an abusive husband. While this evidence provides

minimal support for the grounds for termination, it does not add additional information not

already considered on the issue of best interest. Further, the evidence supporting this violation is

                                                 21
not so egregious that it should deprive N.L.D. of the benefits she will receive from a continued

relationship with her biological family. The trial court has broad discretion to specify the rights

of conservators as well as appropriate levels of possession and access to the child.

       Even when viewing all the evidence in the light most favorable to the finding, we deem

the evidence insufficient to allow a reasonable trier of fact to form a firm belief or conviction,

based on clear and convincing evidence, that termination of Haines’ parental right was in

N.L.D.’s best interest.    We affirm the trial court’s appointment of Jimmy and Angela as

managing conservators, but having found the evidence legally insufficient to support

termination, we reverse the trial court’s order terminating Haines’ parental rights and remand the

case for determination of possible managing conservatorship, possessory conservatorship,

visitation, child support, and any other necessary orders.



                                               Jack Carter
                                               Justice




                                     DISSENTING OPINION

       While I agree with the majority opinion in most respects, I would hold that legally and

factually sufficient evidence supports the jury finding that termination was in the best interest of

the child. For that reason, I respectfully dissent.

       Certainly, the determination by the Department of Family and Protective Services

(Department) not to remove N.L.D. from Haines’ home rests on its conclusion that removal was

                                                  22
not necessary and is evidence that weighs against a best-interest finding, but that determination

does not require a jury to agree with the Department’s conclusion. The jury is entitled to weigh

all the evidence here, evidence which stands on both sides of the best-interest issue.

       I agree that, alone, Haines’ failure to support N.L.D. would not support a best-interest

finding. But it is some evidence that, with the other evidence, supports a best-interest finding.

       While the evidence of Haines’ failure to take N.L.D. to needed medical appointments, her

drug use, and her having been in an abusive relationship are historical and, thus, not necessarily

controlling, the jury is entitled to consider those things in its best-interest deliberations and to

weigh such evidence within the purview of its responsibility. The question of whether Haines is

to be disqualified from having an ongoing parental relationship with N.L.D. is not based just on

evidence mentioned in this paragraph, but, as the Legislature has decided, is a two-part decision:

one or more substantive grounds for termination, not here contested, and the best-interest issue,

which is to be determined by the fact-finder based on all the evidence.

       I would conclude that a reasonable trier of fact could, based on this evidence, form a firm

belief or conviction, based on clear and convincing evidence, that termination of Haines’

parental rights to N.L.D. was in N.L.D.’s best interest.




                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:        September 26, 2013
Date Decided:          October 23, 2013


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