
Opinion issued December 21, 2006









In The
Court of Appeals
For The
First District of Texas



NO. 01-04-01232-CV
NO. 01-04-01233-CV
NO. 01-05-00124-CV
NO. 01-05-00126-CV
NO. 01-05-00127-CV



ERICKA SHANETTE COLBERT, Appellant

V.

DEPARTMENT OF FAMILY & PROTECTIVE SERVICES, Appellee



On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause Nos. 1996-43960, 2002-25084,
2004-03601J, 2003-04414J, & 2003-14864



O P I N I O N
	Appellant, Ericka Shanette Colbert, appeals five orders terminating her parental
rights to her seven children, T.J.C. and T.D.C. (the twins), and D.N.C., T.L.J., T.B.J.,
E.D.C., and J.D.M (the five older children). (1)  In three issues, appellant challenges (1)
the legal and factual sufficiency of the evidence to support the trial court's finding
that she knowingly placed or allowed the twins to remain in conditions or
surroundings that endangered their physical or emotional well-being, (2) the legal
sufficiency of the evidence to support the finding that the termination of parental
rights was in the best interest of the twins, and (3) the factual sufficiency of the
evidence to support the findings that the termination of parental rights was in the best
interest of all the children.  We reverse the order relating to the twins and render 
judgment in appellant's favor.  We reverse the orders relating to the five older
children and remand those cases to the trial court. 
Background Facts

	In April 2003, appellant was living in a three-bedroom house with her five
children, ten-year-old D.N.C., eight-year-old J.D.M., (2) six-year-old E.D.C., five-year-old T.L.J., and three-year-old T.B.J.  The children's maternal grandmother, JoAnn
Colbert (the grandmother), and the grandmother's boyfriend, Kenneth Newman, also
lived in the home.  In early April, Trenton Jackson, the father of T.L.J. and T.B.J.,
moved into the household.  On or about April 3, Jackson brought T.J., his three-year-old daughter by another woman, into the home to visit.  On April 4, Jackson
"spanked" or "whipped" T.J. with a leather belt for wetting her pants.  On April 5,
Jackson again "whipped" T.J., this time for defecating in her pants.  In the early
evening of April 5, T.J. was found unconscious, and someone called 9-1-1.  T.J. was
taken to the hospital by ambulance, and Jackson was arrested and charged with injury
to a child.  T.J. died on April 9, and an autopsy showed that the cause of death was
a blunt-force head injury.  In April 2004, Jackson was found guilty of injury to a child
and was sentenced to life in prison.  
	In May 2003, the Department of Protective and Regulatory Services, the
predecessor of the Department of Family and Protective Services ("DFPS"), took
possession of appellant's five children and filed a petition for protection of a child,
for conservatorship, and for termination of appellant's parental rights with respect to
each of her five children. (3)  The petition also sought termination of the parental rights
of each of the children's fathers. (4)  As grounds for the termination of appellant's
rights, the petition recited subsections (1)(A)-(G) and (J)-(S) and (2) of section
161.001 of the Family Code. (5)  DFPS did not remove the children from the home at
that time. (6) 
	Jackson was out of jail on bond while he awaited his trial, and DFPS had told
appellant not to allow Jackson to be around the children.  However, appellant did not
believe that Jackson's actions had caused T.J.'s death, and she let Jackson move back
into the house.  DFPS later learned that Jackson was living in the house and removed
the children from appellant.  DFPS placed J.D.M with his paternal grandfather and
the other children with the grandmother, who, along with Newman, still lived in
appellant's house.  Appellant moved out of the house, stayed with a cousin, and
visited her children during the day.
	After DFPS took custody of the children, The Children's Crisis Care Center
(the CCCC) did a family evaluation, during which appellant revealed that the
grandmother had a history that included drug convictions, that she was currently on
parole, and that she no longer used drugs and had made a better life for herself.  DFPS
learned that the grandmother also had convictions for prostitution and burglary, and
that Newman had convictions for aggravated robbery, breaking and entering, and
possession of cocaine.  In December 2003, DFPS took possession of the four children
and put them in substitute care.  J.D.M. remained with his grandfather.  At the time
of trial, the two boys were in the same foster home and the two girls were each in
different foster homes. 
	DFPS offered various services to appellant and her family as a part of DFPS's
permanency planning.  Appellant participated in therapy, parenting classes, and anger
management classes and was allowed supervised visits with the children for one hour
every two weeks.  Appellant attended all the family visits allowed by DFPS and made
all her court appearances.  
	On January 30, 2004, appellant gave birth to T.D.C. and T.J.C., whose father
was Jackson.  In April 2004, DFPS removed the two-and-one-half-month-old twins
from appellant's home.  DFPS filed a petition for protection, conservatorship, and
termination of parental rights with respect to the twins.  The five cases, which
included all seven children, were tried together in November 2004.  
The Evidence

1.	Appellant
	At her trial in November 2004, appellant testified that she saw Jackson spank
T.J. only one time--with a belt on April 5. (7)  Appellant further testified that she bathed
T.J. after the spanking and told Jackson that there were better ways to discipline a
child.  Appellant said that, after bathing T.J., she left the house and returned one and
one-half to two hours later.  Appellant testified that when she returned home, the
ambulance had gone and Jackson was sitting in a police car.  
2.	The Therapist
	Brenda Hornaday, the therapist who treated four of the five older children
beginning in about August 2003, testified that she visited with the children in
appellant's home weekly and that her primary focus with the children was behavior
modification.  She said that the house was orderly, but that there was chaos.  She
testified that there were a lot of people in the house and that children were always
present.  She said that the grandmother allowed her to conduct the therapy in the
grandmother's bedroom.  Hornaday testified that, based on her visits, she could not
assess whether the home environment was conducive to the children's return.  She
said that she had no opinion regarding the termination of appellant's parental rights. 
She thought that the children would be able to deal with never going back to their
mother.  She said that the children needed consistency, stability, structure, and
patience and were getting some of those things at home, but that they need all of those
things.  
	Hornaday testified that all the children were very much bonded with their
mother and that they loved Jackson.  She said that two of the children told her that
they got "whippings," but did not say by whom, and she did not ask.  She was not
able to address the severity of the whippings, because the children did not talk about
that.  She testified that the children would need continuing therapy, and that, if they
were returned to their mother, Hornaday would continue to treat them.  She also
stated that, if stability, consistency, patience, and structure could prevail in the chaos
in appellant's home, it would be in the best interest of the children to return them to
their mother.  If not, returning them would not be in their best interest.  She stated that
she did not have sufficient information on appellant to assess whether appellant could
develop the needed attributes.  She knew that family visitations were scheduled every
two weeks, but she had never observed one.  In response to a hypothetical situation
in which a mother had one hour to visit with all her children, she responded that it
was possible that one child might feel neglected.  
3.	The Grandfather
	Kenneth Williamson, J.D.M.'s paternal grandfather, testified that J.D.M. had
been living with him for about a year and had previously lived with him from the ages
of five months to eight or nine years.  He testified that J.D.M. lived with him because
Williamson did not like the atmosphere at appellant's home, with its "[i]n and out
traffic," which he suspected was drug trafficking, although he could not be sure.  He
said that appellant visited J.D.M. "two, three, four times at the most" and that J.D.M.
spent some weekends with appellant.  He testified that J.D.M. saw appellant as a
mother figure and that the two had a close bond.  He opined that appellant loved all
her children, but made bad choices.  He said he would not have concerns if J.D.M.
went back to appellant's home, but would have concerns if the home had the same
environment as before.  He had attended the family visits and thought that appellant
treated all the children the same.  
4.	The Guardian Ad Litem
	David Cooney, the children's guardian ad litem through Child Advocates, had
been involved in the case since August 2003.  He testified that he visited the home
before the children were removed and had concerns about the presence of Kenneth
Newman, the grandmother's boyfriend, in the home because of his criminal record. 
Cooney also testified that he had concerns about the grandmother's extensive
criminal history.  He further testified that, in December 2003, he recommended to the
court that the children be removed from the home because of his concerns about
appellant's minimizing Jackson's role in the death of T.J. and appellant's failure to
acknowledge her own responsibility to protect T.J. or to admit the severity of T.J.'s
bruises.  However, he testified that, if appellant had recognized that Jackson was
responsible for T.J.'s death, he would not have changed his mind about termination. 
	Cooney felt that the 28 months of services appellant received after the death
of her infant son in 1998 had been ineffective because she had another child after
those services had been completed.  However, he denied holding the birth of that
child against her, but explained that he saw a pattern in her life of choosing men who
wound up in prison.  He testified that the initial goal of Child Advocates in this case,
like that of DFPS, was family reunification, but that goal was changed in December
2003 to reunification/adoption when they discovered that Newman was still living in
the house.  However, Cooney could not recall telling appellant that Newman should
move out, and the record does not reveal how or when appellant was told that
Newman could not live in the home.    
	Cooney testified that, during the family visits, which were customarily one
hour long, appellant gave most of her time to the twins; the other five did not get
equal time and would play with each other, sit by themselves, or play games.  He
stated that he thought that appellant could ask for more time and that she did ask for
and receive an extra hour to visit T.L.J. when he was in the hospital.  He said he
thought that the children love appellant, but that they don't show affection as he
thinks children would.  He also stated that he did not know whether it is normal for
a mother to spend more time with babies than with older children.  
	Cooney testified that, when he visited the children in appellant's home, they
were exuberant and hard to settle down.  In his opinion, appellant could not give the
structure that they needed, and he had not seen that she had the will to change.  He
further testified that, since their placement in substitute care, the children's school
work had improved and that he believed termination of appellant's parental rights was
in the best interest of the children.  
5.	The Caseworker
	Adrienne Aiken, the DFPS caseworker, testified that the goal for services
changed from reunification to adoption first with the twins in the spring of 2004 
shortly after they were removed from appellant's home on April 15.  The decision
was formally made at a meeting of the Permanency Planning Team (PPT) in May. 
She further testified that the goal for all the children changed to adoption in June 
based on incidents over the period of Jackson's trial and appellant's minimization of
both Jackson's and appellant's roles in the death of T.J. (8)  Aiken testified that
comments appellant made in the spring of 2003 to DFPS were contradictory to
statements she made during Jackson's criminal trial in April 2004.  Aiken stated that
she had not seen a great deal of progress in appellant's recognizing her role in what
happened to T.J.  Aiken stated that she believed that there was "overwhelming
evidence" to show that T.J. was abused in appellant's presence and that appellant
failed to be protective.  She said that appellant's belief that Jackson was not
responsible for T.J.'s death affected appellant's parenting skills because it affected
her ability to be protective of her children.  However, Aiken also testified that if, just
before the twins were removed, appellant had conceded that Jackson had killed T.J.,
Aiken would still recommend termination of appellant's parental rights.  
	Aiken testified that appellant's rights should be terminated because Aiken
believed that all the children had been abused and neglected--physically abused and
neglected and emotionally neglected.  She stated that she could see the results of that
abuse and neglect in the children's behavior, such as the way they socialize and
respond to people and the language they use, telling teachers to "Kiss my butt" and
using "more graphic language."  As a further example, she said that T.L.J. was
hospitalized for threatening to kill a child at school.  But she also testified that when
someone talked to T.L.J. about the threat, he did not know that "killing" meant what
had happened to T.J., and, according to Aiken, he was "horrified" that he had said
that to someone. 
	Aiken also testified that she had been at all of appellant's family visits with the
children and observed that there was not a "big bond" with the children and not a "lot
of nurturing" by appellant.  Aiken stated that, when she asked appellant to give
special attention to E.D.C., appellant did not do so.  The twins got almost all the
attention.  She testified that she believed that termination of appellant's rights was in
the best interest of the children because she believed that the children deserved an
opportunity for permanency, stability, and consistency in their lives.  She also stated
that she believed the children were adoptable.  She said that she was not disputing
that appellant had completed the services offered to her. 
	Aiken testified that, although appellant had made all the family visits and court
appearances, she had not done everything she was asked to do.  According to Aiken,
appellant had not obtained appropriate housing, and Aiken had not seen proof that
appellant had a job and was making the wages she claimed.  Aiken said that the
problem with the house appellant was currently living in was that T.J.'s death had
occurred there and the children should not be living in that house.  When asked
whether Aiken had told appellant that, if appellant got other housing, it would change
Aiken's opinion about termination, Aiken responded, "When the plan was given to
Miss Colbert that she signed, it was - - that's what it said."  
	The attorney ad litem for the children asked Aiken how he could guarantee that
the children would get to see each other if appellant's parental rights were terminated. 
Aiken testified that the children could visit while they were in foster care and said,
"And who is to [say] that somebody will not adopt all of them?"  She further testified
that "we don't know that they're going to be adopted in the homes that they're in
particularly."  
6.	The Grandmother
	The grandmother testified that the children had plenty of food, were well-clothed, and were disciplined by taking away privileges.  She said that she did not
spank the children, but disciplined them in the same way as appellant.  She said that
she would be willing to move out of the house if it would help appellant keep the
children.  
7.	Kenneth Newman
	Kenneth Newman, the grandmother's boyfriend, testified that he had lived in
appellant's house one or two years and had moved out in January 2004. (9)  He testified
that appellant was not at the house when an ambulance was called for T.J. and that
she had been gone about two or three hours.  He further testified that, when appellant
left the house, T.J. was all right.  He said that, after appellant left, he saw Jackson go
into the room where T.J. was, heard Jackson spanking or beating T.J., and heard T.J.
crying.  Newman said he did not interfere because Jackson had said he would
discipline his child the way he wanted to. 
	Newman also testified that he never saw appellant whip the children.  She
disciplined them by sending them to their room or restricting their access to television
or their bicycles.  Newman admitted that he had convictions for the offenses of
aggravated robbery, possession of drug paraphernalia, and criminal trespass.  He also
admitted that he had used illegal drugs, but said that he did not do so in the house.  
8.	Other Evidence
	 The signed Family Service Plan in the record shows, as one of four goals, that
"Ericka Colbert will maintain housing that is safe and free of environmental hazards." 
In another section, it elaborates:  "Ericka Colbert will locate and maintain appropriate
housing."  The plan does not indicate that appellant's three-bedroom home was
unsafe or inappropriate, nor does it indicate that finding other housing was a
condition of retaining her parental rights.  Moreover, a February 2004 "Permanency
Plan and Permanency Progress Report," which was filed with the trial court, stated,
"Erika Colbert has located and maintained employment and has appropriate housing. 
. . .  Ms. Colbert has employment and has provided CPS with a statement of
earnings."  
	Aiken's testimony that appellant did not give additional attention to E.D.C. as
requested was contradicted by Aiken's "CPS Monthly Summary/Assessment" for
September 2004.  Her notes for September 20, 2004 state, "Ms. Hornaday asked if
[caseworker] could speak with mother about giving attention to [E.D.C.]."  Aiken's
notes for September 28, 2004 state, "[Mother] gave more attention to E.D.C. and held
him on her lap for a few minutes." 
The Orders

	In all five cases, the trial court entered a order terminating appellant's parental
rights to her children.  Each order also terminated the father's parental rights, but
those terminations are not challenged in these appeals.  Because both the mother's
and father's parental rights were terminated, the trial court appointed DFPS as the
sole managing conservator of the children.  
	With respect to appellant, each order provided as follows:
	The Court finds by clear and convincing evidence that termination of the
parent-child relationship between ERICKA SHANETTE COLBERT and
the [child or children], the subject of this suit is in the [child or
children's] best interest.  

	Further, the Court finds by clear and convincing evidence that ERICKA
SHANETTE COLBERT has:

		knowingly placed or knowingly allowed the [child or children] to
remain in conditions or surroundings which endanger the physical
or emotional well-being of the [child or children], pursuant to
§ 161.001 (1)(D) of the Texas Family Code[.]

Appellant challenges the legal and factual sufficiency of the evidence to support these
findings.
Standard of Review

	"The natural right that exists between parents and their children is one of
constitutional dimensions."  In re J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1994)
(quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)).  A parent's right to
"the companionship, care, custody and management" of her children is a
constitutional interest "far more precious than any property right."  Santosky v.
Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982) (quoting Stanley v. Ill.,
405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1972)).  "Due process requires that the State
support its allegations by at least clear and convincing evidence" to reduce the risk
of erroneous termination.  Id., 455 U.S. at 747-48, 102 S. Ct. at 1391-92; In re
B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003).  Therefore, in a case terminating
parental rights, we strictly scrutinize the proceedings and strictly construe the law in
favor of the parent.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).  
	There is a strong presumption that it is in the best interest of the child to keep
custody in the natural parent.  In re K.C.M., 4 S.W.3d 392, 395 (Tex. App.--Houston
[1st Dist.] 1999, pet. denied), disapproved on other grounds, In re C.H., 89 S.W.3d
17, 26 (Tex. 2002).  DFPS has the burden to rebut this presumption by clear and
convincing evidence.  Id.  To be clear and convincing, the proof must produce in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegations
sought to be established.  Tex. Fam. Code Ann. § 101.007 (Vernon 2002); In re
J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).  The distinction, often fine, between a legal-sufficiency and a factual-sufficiency review lies in how the evidence is viewed.   In
re J.F.C., 96 S.W.3d at 266.  In reviewing for legal sufficiency, we must look at all
the evidence in the light most favorable to the finding to determine whether the
evidence is such that a factfinder could reasonably have formed a firm belief or
conviction that the finding was true.  Id.  We assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so.  Id.  We
disregard evidence that a reasonable factfinder could have disbelieved, but we do not
disregard undisputed facts that do not support the finding.  Id.  
	In a factual-sufficiency review, we consider the entire record to determine
whether a factfinder could reasonably form a firm belief or conviction about the truth
of the State's allegations.  In re C.H., 89 S.W.3d at 28.  If, in light of all the evidence,
the disputed evidence that a reasonable factfinder could not have credited in favor of
the finding is so significant that a factfinder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.  In re J.F.C., 96
S.W.3d at 266.  If a court of appeals determines that the evidence is factually
insufficient, it should detail in its opinion why it has concluded that a reasonable
factfinder could not have credited disputed evidence in favor of the finding.  Id. at
267.  
Grounds for Termination

	 To terminate the parent-child relationship, a court must find by clear and
convincing evidence that the parent has committed one of the acts listed in section
161.001(1) of the Family Code and that termination is in the best interest of the child. 
See Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon Supp. 2006).  The failure to
prove either of these elements will prevent termination of a parent's rights.  See In re
U.P., 105 S.W.3d 222, 229 (Tex. App.--Houston [14th Dist.] 2003, pet. denied)
("Proof of one element does not relieve petitioner from establishing the other."). 
"[T]he best interest standard does not permit termination merely because a child
might be better off living elsewhere.  Termination should not be used to merely
reallocate children to better and more prosperous parents."  In re D.M., 58 S.W.3d
801, 814 (Tex. App.--Fort Worth 2001, no pet.).  
1.	Conditions or surroundings relating to the twins
	In her first issue, appellant challenges the legal and factual sufficiency of the
evidence to support the trial court's finding that she "knowingly placed or knowingly
allowed the twins to remain in conditions or surroundings which endanger the
physical or emotional well-being of the children"  under section 161.001(1)(D) of the
Family Code.  Appellant argues that subsection (1)(D) requires the child to have
actually been in conditions or surroundings that threaten the child and that there is no
evidence that the twins were living in such conditions.  Appellant also argues that
Jackson's presence in appellant's home eight months before the twins were born
cannot be the legal basis for the twins' removal from her custody.  
	We agree.  There is no evidence in the record to establish that the environment
in appellant's home posed a danger to the twins.  See In re A.B., 125 S.W.3d 769, 775
(Tex. App.--Texarkana, 2003, pet. denied) ("Under this section, we look to see if the
environment itself poses a danger to the child's physical or emotional well-being."). 
Appellant testified that DFPS did not visit the home before taking the twins.  That
testimony is uncontested.  Therefore, DFPS had no basis on which to claim that the
home environment posed a danger to the twins.  
	Although the grandmother was a part of that environment, and both Aiken and
Cooney made it clear that they did not think she should be with the children, their
opinions were not based on any evidence of harm or danger that she posed.  Rather,
they were based on the fact of the grandmother's past criminal record and did not take
into account that there was no evidence of current illegal activity and that she was a
source of financial and moral support for appellant.  Cooney's child-advocate reports
dated February 24, 2004, July 22, 2004, and November 16, 2004 stated "There are no
present indications that Joann Colbert is currently involved with drugs." 
Furthermore, appellant's statement to the interviewer for the CCCC's family
evaluation "that since her mother has been released from prison, she earned a GED,
goes to Church, has obtained employment and no longer uses drugs" and "that her
mother has changed and made a better life for herself" is uncontested.  
	Aiken and Cooney also objected to the grandmother's relationship with
Newman, who may or may not have lived with appellant and the grandmother for the
two and one-half months between the twins' birth and their removal from the home. 
Newman had lived with the grandmother and appellant for one to two years, and,
although he admitted to drug use, he testified that he did not use drugs at the home. 
No evidence contradicts this testimony.  
	Aiken testified to the following reasons for taking the twins into custody: (1)
appellant's previous history with DFPS; (2) the fact that the five older children were
in custody; (3) appellant's testimony in the Jackson trial which, according to Aiken,
showed that appellant misstated to DFPS the truth of what happened to T.J.; and (4)
the fragility of the babies.  These reasons are not related to the environment in the
home when the twins were removed and therefore cannot support termination under
subsection (1)(D).  
	DFPS does not respond to appellant's arguments under her first issue.  Instead,
DFPS urges that, because the trial court did not file findings of fact separately, as
required in rule 299a of the Texas Rules of Civil Procedure, this Court must affirm
the judgment if any legal theory pleaded by DFPS is supported by the evidence. (10) 
	We rejected this same argument by DFPS in Cervantes-Peterson v. Texas
Department of Family & Protective Services, No. 01-05-00307-CV, 2006 WL
2195241, at *5 (Tex. App.--Houston [1st Dist.] Aug. 3, 2006, no pet.).  In Cervantes-Peterson, we pointed out that a trial court's recitation in the judgment of its ground
for termination of parental rights is not a fact-finding that is prohibited under rule
299a of the Texas Rules of Civil Procedure.  Id. at *5 (citing In re A.I.G., 135 S.W.3d
687, 693-94 (Tex. App.--San Antonio 2003, no pet.).  The trial court in the instant
cases, as in Cervantes-Peterson and A.I.G., was simply stating the grounds for
termination of parental rights, as required by section 161.206 of the Family Code. (11) 
Accordingly, we overrule DFPS's issue.  
	Here, there is no evidence favorable to the trial court's finding under
subsection (1)(D).  In fact, there are undisputed facts that are against the finding--the
failure of DFPS to visit the home before deciding to remove the twins; the report
stating, "There are no present indications that Joann Colbert is currently involved
with drugs"; appellant's uncontested statement that the grandmother had turned her
life around; and the grandmother's financial and moral support of appellant and her
children.  Even considering all the evidence in the light most favorable to the trial
court's finding under subsection (1)(D), we hold that a factfinder could not have
reasonably formed a firm belief or conviction that the finding was true with respect
to the twins.  Accordingly, we sustain appellant's first issue.  
2.	Best Interest of the five older children
	In her third issue, appellant challenges the factual sufficiency of the evidence
to support the trial court's finding that termination of appellant's parental rights was
in the best interest of D.N.C., E.D.C., J.D.M., T.L.J., and T.B.J.  Texas courts have
generally considered nine nonexclusive, nonexhaustive factors set out in Holley v.
Adams in determining the best interest of the child.  544 S.W.2d 367 (Tex. 1976). 
Those factors are (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 a
proper one; and (9) any excuse for the acts or omissions of the parent.  Id. at 372.   
We will consider the evidence as it relates to these factors.  
	1.  The desires of the children.  Hornaday agreed that all the children loved
appellant.  Hornaday further testified that the children were very much bonded with
their mother.  On the other hand, Aiken testified regarding the twice-monthly one-hour family visits, "My observation is that there's not a big bond with the children. 
My observation is that there is not a lot of nurturing that happens."  When asked
whether the children loved their mother, Aiken responded, "I believe they do."
	 Hornaday testified that D.N.C. wanted to come home.  The CCCC's initial
evaluation report stated that D.N.C. wanted to live with her mother.  DFPS asserts
that D.N.C.'s behavior following family visits--being "ugly to everyone" and yelling
and screaming until midnight--while otherwise doing well in foster care is
inconsistent with her stated desire to live with her mother.  However, D.N.C.'s foster
mother reported to DFPS that D.N.C. got angry and yelled that "no one" was helping
her mother and that the foster mother was not helping her mother.  Thus, D.N.C.'s
poor behavior following family visits was more likely caused by her perception that
her mother was not getting the help that she needed.  DFPS's summary reports also
indicate that, on one occasion, it was difficult to separate D.N.C. from her mother at
the end of a family visit.  
	Hornaday testified that E.D.C. really loved his mother and that, although he
was getting the structure he needed at the foster home, he rejected it because he
wanted to be with his mother.  Approximately one month before trial, a DePelchin
Children's Services report noted that E.D.C. had a strong bond to his siblings and
family.  The report also noted that E.D.C. said he loved his foster parents.  The
CCCC's initial evaluation report stated that E.D.C. said that his mother is good, takes
care of the children, and that he loves her.  He wished to be back with his family. 
DFPS asserts that E.D.C. was depressed after a family visit because his mother did
not talk to him and that E.D.C. says he likes school and his foster parents are good to
him.  These facts do not negate E.D.C.'s stated desire to live with his mother.  
	Williamson testified that, although J.D.M. lived with him most of the time,
J.D.M. saw appellant as a mother figure and they had a close bond.  Williamson
testified that J.D.M. had gone back to live with appellant in September 2002 because
he wanted to be with appellant and his brothers and sisters.  Williamson further
testified that, at the time of trial, J.D.M. wanted to live with Williamson but wanted
to maintain contact with appellant and his sisters and brothers and that he sometimes
spent weekends with appellant.  Williamson testified that he felt that appellant and
J.D.M. had a mother-son relationship and that appellant treated all the children the
same.  
	There is nothing in the record to indicate the desires of T.L.J. and T.B.J.  DFPS
cites T.B.J.'s refusal to get dressed and her saying that she did not want to go to the
family visits as evidence of her desires.  DFPS does not speculate regarding what
those desires are, nor do we.  
	2.  Emotional and physical needs of the children now and in the future.  The
record does not indicate that any of the children have special physical needs.  There
was evidence that the children were appropriately clothed and well-fed.  However,
D.N.C., E.D.C., T.L.J., and T.B.J. had some significant behavioral and emotional
problems.  Hornaday testified that the house was orderly, but that there was chaos--a
"constant flow of traffic"--and that "there were always children present."  
	With respect to the individual children, Hornaday testified that D.N.C. was
diagnosed as having attention-deficit-hyperactive disorder (ADHD) and was
borderline mentally retarded, that E.D.C. also had ADHD and oppositional defiance,
that T.L.J.  was diagnosed as having ADHD, and that T.B.C. was identified as having
behavior problems that included tantrums, fighting, and defiance of authority. 
Hornaday further testified that the children needed consistency, stability, structure,
and patience.  She said that they were getting some of those things at home, but that
these children needed all of those things.  Hornaday said that she did not know
whether appellant could develop the necessary attributes to give the children the
structure they need.  Hornaday also said she had no opinion regarding the termination
of appellant's parental rights.  She expressed her opinion that the children would
adjust and thrive if they were removed from the home.  But Hornaday also testified
that, if the children were returned home, she would continue to see them.  
	Cooney testified that appellant gave most of her time to the twins during family
visits and that the other five did not get equal time.  But he admitted that he did not
know if it was normal for a mother to spend more time with babies.  Aiken testified
that, from her observation of the family visits, she did not think appellant was bonded
with the children or nurturing to them.  
	The evidence shows that appellant has been able to take care of the children's
physical needs, but she will likely need some assistance in caring for their emotional
needs.  
	3.  Emotional and physical danger to the children now and in the future.  DFPS
contends that Department personnel were concerned for the safety of appellant's
children.  However, those concerns centered around appellant's failure to recognize
that Jackson was responsible for T.J.'s death and Newman's presence in appellant's
home.  DFPS directs us to a June 2003 evaluation by the CCCC expressing the
concern that appellant's "conflicted feelings regarding Mr. Jackson may prevent her
from providing a safe environment for her children."  That evaluation was made less
than two months after DFPS became involved.  Almost one year later, May 28, 2004,
appellant's therapist sent a report to Aiken which showed that appellant had made
"good" progress in recognizing Jackson's role in T.J.'s death and "moderate"
progress in taking responsibility for her lack of protectiveness.  DFPS characterizes
these statements as "self-serving."  However, they are not statements by appellant;
they are the opinions of a therapist to whom DFPS referred appellant.
	Jackson is no longer a threat to the children's safety, and there is no evidence
that Newman ever was.  The May 28, 2004 monthly report by appellant's therapist
indicates that appellant had made good progress in understanding Jackson's mistakes
and his involvement in the death of T.J.  Although Aiken and Cooney both testified
that, as late as May 2004, appellant did not believe that Jackson was responsible for
T.J.'s death, they did not testify that she continued to believe so.  At the termination
trial, appellant testified that she no longer had any contact with Jackson.  She said that
a lot of "stuff" came out at his trial that she did not know and that she had to get the
information "secondhand" because she was not allowed to sit in the courtroom.  
	Thus, there is no evidence that the children will be emotionally or physically
endangered by being returned to appellant.  
	4.  Parental abilities.  The testimony of Hornaday, Cooney, and Aiken
regarding the five older children when they were in appellant's home indicated that
the atmosphere was chaotic, hectic, and unstructured.  However, Newman testified
that appellant was a good mother and that the children were well-fed and clothed. 
Appellant had completed parenting classes and said she no longer disciplined the
children by spanking.  
	Hornaday testified that the five older children were getting some of the things
they needed at home.  She did not specify what needs were being met by appellant. 
Significantly, Hornaday testified that she had no opinion regarding the termination
of appellant's parental rights.  According to a "Permanency Plan/Permanency
Progress Report" filed with the court on February 24, 2004, appellant was actively
participating in individual and group therapy, had completed parenting classes, and
was making progress toward alleviating the causes for the removal of the children. 
In addition, according to her therapist's monthly reports for April and May, appellant
had made progress in the goals set for her.  The only area in which the report showed
that she made no progress was the family's ability to communicate effectively and
demonstrating appropriate parenting skills.  However, this was not entirely within her
control.  Those skills were to be worked on in family therapy, and, although
appellant's therapist's report dated May 28, 2004 shows the recommendation, "Begin
Family Therapy," there is no evidence that family therapy was ever provided to
appellant.  At trial, Aiken testified that she was not disputing that appellant had
completed the services that she was offered, although she later stated that appellant
had not obtained appropriate housing--a claim that is contradicted by DFPS records. 
	5.  Programs available to assist in promoting the best interest of the children.
Appellant had already taken advantage of all programs offered to her to increase her
ability to meet the needs of the children.  These programs included parenting classes,
anger management classes, and individual and group therapy.  Aiken admitted that
appellant had completed all the services she was offered.  Appellant's therapist
reported that appellant was making progress in all areas.  Appellant also earned a
GED and a license as a nurse's aid and was employed in health care.  
	6.  Plans for the children.  At trial, when asked about her plans for the children,
appellant stated, "I would do everything in my power to keep all their fathers away
from them."  She testified that, if the children are returned to her, the grandmother
would move out to satisfy DFPS's requirement. (12) 
	DFPS's plans are to place the children for adoption.  Although Aiken testified
that the children were adoptable, she also said that she did not know that they would
be adopted into their foster homes, and she did not provide any information regarding
potential adoptive homes.  In addition, she could not assure that the children would
be able to visit each other after adoption. 
	7.  Stability of the home or proposed placement.  Appellant has demonstrated
her stability by living in the same residence for several years, obtaining her GED and
job training, and securing employment.  In spite of DFPS's objections to the
grandmother, her presence in the home appears to enhance the stability of the home
because the grandmother provides family support for appellant.  DFPS produced no
evidence regarding the stability of any proposed placement for the children.  
	8.  Acts or omissions of the parent indicating parent-child relationship is not
proper.  Knowing that Jackson was charged with injury to T.J., and having agreed
with DFPS that she would not allow Jackson to be around her children, appellant let
Jackson move into her home while he awaited trial. (13)  DFPS also complains about
appellant's failure to admit to the severity of T.J.'s bruises.  
	9.  Any excuse for acts or omissions of the parent.  Appellant testified that she
let Jackson live with her and be around the children after she agreed that she would
not because she did not think that Jackson was responsible for T.J.'s death.  Appellant
said that she could not believe that Jackson had severely beaten T.J. and that she was
not allowed into the courtroom during his trial and did not see the evidence presented. 
At the termination hearing, appellant testified that she, at that time, believed that
Jackson was the cause of T.J.'s death.  Moreover, contrary to Aiken's statements,
there is no evidence in the record that Jackson abused any of appellant's children.  
	Appellant contends that T.J. did not have severe bruising at the time appellant
left the house on the day T.J. was beaten.  Newman testified that when appellant left
the house on that day, T.J. was "all right" and that appellant had no knowledge of
what happened to T.J. after appellant left the house.  There was no testimony
establishing the extent of any bruising on T.J. after the first spanking, but before the
beating on April 5, 2003.  If appellant did not see T.J.'s bruises, she was not in a
position to "admit" to the severity of the bruising to comply with DFPS's demands.
Summary
	In weighing the Holley factors, we will necessarily consider  some to be more
important than others, depending on the facts of a case.  Here, it seems clear that the
three children who were old enough to express a preference wanted to live with their
mother, or at least to continue their relationship with her, as is the case with J.D.M. 
Although DFPS may not agree that this issue is undisputed, it presented no evidence
that any of the children did not want to return to their mother.  Aiken admitted that
all the children love their mother.  The desires of the children weigh in favor of
appellant.
	It is undisputed that appellant had completed all programs offered to her by
DFPS.  The only evidence offered by DFPS that appellant had not done everything
she was asked to do was Aiken's testimony that appellant had not obtained
appropriate housing.  That evidence was not credible because it was contradicted by
DFPS's records stating that appellant had appropriate housing.  Appellant admitted
that she had not contacted any agencies that could offer services for the children, but
said she would if the children were returned to her.  Appellant's diligence in doing
all that DFPS asked of her weighs in her favor.  
	Neither appellant nor DFPS dwelt on future plans for the children.  Appellant
said she would try to keep the children's fathers away and would have her mother
move out of the house to satisfy DFPS's requirements, and DFPS planned to place the
children for adoption, although it did not yet have adoptive homes for all the children. 
Thus, this factor does not weigh on either side.  
	It is undisputed that appellant provided for the physical needs of the children
by providing food, clothing, and shelter.  However, the children have significant
emotional needs, some of which appellant has not been able to fulfill.  Three of the
children were diagnosed as having ADHD, and they and a fourth child had a variety
of behavior problems.  The children were generally making better grades at school
while in foster care.  According to Hornaday, most of the children's problems existed
before DFPS became involved with the children.  But the evidence suggests that some
of the children's negative behavior was exacerbated by their separation from their
mother.  Appellant's ability to take care of the children's physical needs and some of
their emotional needs weighs in her favor.  However, her difficulty in providing for
all their emotional needs weighs in favor of DFPS.  
	At the time of trial, there was no evidence that the children would have been
in any danger by being returned to appellant because appellant and her mother were
the only ones living in appellant's house.  Aiken's testimony that she believed that
all the children were abused and neglected, both physically and emotionally, is
without support in the record.  When asked for specifics, she said, "Well, their ability
to socialize and how they socialize tells a great deal about what they have been
exposed to previous to this. . . .  [A]nd I believe they came to us with those types of
behavior . . . such as telling teachers to 'Kiss my butt' and using more graphic
language than that."  Aiken also testified that the children had nightmares, but those
she discussed were related to the death of T.J.  In its brief, DFPS also cites the fact
that the children were sometimes disciplined by spanking and had various scars and
old healed marks as evidence of physical abuse.  DFPS does not direct us to anything
in the record to show that these marks were the result of physical abuse, nor does it
inform us of how it distinguishes between permissible physical punishment and
physical abuse.  Certainly, a child's use of somewhat crude language is not a basis for
terminating the parent-child relationship.  The physical-danger factor weighs in favor
of appellant.  
	Relevant to appellant's parental abilities, Hornaday testified that the home
atmosphere was chaotic,  that appellant gave the children some of what they needed,
but not all, and that she did not know whether appellant was capable of developing
the attributes needed to parent the children.  Hornaday did not specify the needs that
appellant was not meeting, and her description of the chaos--that there were always
children there--was merely stating the obvious about a family having five (now
seven) children.  Most important, Hornaday said she had no opinion regarding the
termination of appellant's parental rights and that she would continue to work with
the children if they were returned to their mother.  Considering the love and
attachment between appellant and her children and her success in complying with
DFPS's requirements, appellant's parental abilities weigh in her favor.  
	DFPS argues that having eight children by four different fathers is an
indication of appellant's instability.  DFPS does not consider appellant's recent
history.  She has lived in the same house for several years and has obtained her GED,
a license as a nurse's-aid, and a job.  It is evident that she has worked on becoming
more stable and capable of caring for her children.  The stability factor weighs in
favor of appellant.  
	Appellant's reason for allowing Jackson to be around the children while he
waited to go on trial was her belief that he was not the cause of T.J.'s death.  Her
testimony that, after his conviction, she came to believe that Jackson caused T.J.'s
death was corroborated by her therapist's reports to DFPS.  This factor also weighs
on the side of appellant.
	Having considered the Holley factors as they apply in this case, we hold that
the evidence in this case is factually insufficient to support the orders terminating
appellant's parental rights to D.N.C., E.D.C., J.D.M., T.L.J., and T.B.J. because,
considering the entire record, a factfinder could not reasonably form a firm belief that
the termination of appellant's parental rights was in the best interests of the children. 
Accordingly, we sustain appellant's third issue.  
DISPOSITION

1.	The five older children
	Having sustained appellant's third issue, we reverse the portion of the orders
of the trial court terminating appellant's parental rights and awarding DFPS sole
managing conservatorship in appeal numbers 01-04-01232-CV, 01-04-01233-CV, 01-05-00126-CV, and 01-05-00127-CV and remand those cases to the court below for
further proceedings consistent with this opinion. 
2.	The twins
	Having sustained appellant's first issue and overruled DFPS's cross-issue, we
need not reach appellant's second issue regarding the best interest of the twins.  We
reverse the portion of the order related to the termination of appellant's parental rights
in appeal number 01-05-00124-CV.  Because the trial court appointed DFPS as
managing conservator of the children under Family Code section 161.207 as a
necessary consequence of the termination of the parental rights of both appellant and
each of the children's fathers, and made no findings to support the appointment of
DFPS as managing conservator with the termination of appellant's parental rights
under Family code section 263.404, we also reverse the portion of the order that
appointed DFPS as the sole managing conservator. (14) See Tex. Fam. Code Ann.
§ 263.404 (Vernon 2002) (allowing trial court to appoint DFPS as sole managing
conservator without termination of parental rights when trial court makes specific
findings).  
	When reversing the trial court's judgment or appealable order, we usually
render the judgment or order that the trial court should have rendered.  Tex. R. App.
P. 43.3.  However, in a case involving the involuntary termination of parental rights,
if the trial court does not order termination of the parent-child relationship, section
161.205 of the Family Code requires that the trial court either (1) deny the petition
for termination or (2) render any order in the best interest of the child.  See Tex. Fam.
Code Ann. § 161.205 (Vernon 2002).  An appellate court is not in a position to
determine whether simply to deny the petition for termination or to render some other
order in the best interest of the child.  Circumstances concerning the child or parent
may have changed since the trial court rendered its order of termination, a matter that
requires a factfinder.  We are therefore unable to render a judgment that disposes of
all remaining issues in the case and must remand the case in part to the trial court for
further proceedings under section 161.205. (15) See Tex. R. App. P. 43.3(a). 
	Accordingly, we render judgment in part in appeal number 01-05-00124-CV
that appellant's parental rights are not terminated, and we remand the case to the trial
court for the limited purpose of rendering an order, consistent with Family Code
section 161.205, disposing of the portion of the petition relating to appellant.  
 


							Sam Nuchia
							Justice

Panel consists of Justices Nuchia, Jennings, and Higley.  

Justice Jennings, concurring in part and dissenting in part.  
1. 	D.N.C. is the subject of appeal number 01-04-01232-CV, trial cause number
1996-43960;  T.L.J. and T.B.J. are the subjects of appeal number 01-04-01233-CV, trial
cause number 2002-25084;  T.J.C. and T.D.C. are the subjects of appeal nnumber 01-05-00124-CV, trial cause number 2004-03601J; E.D.C. is the subject of appeal number 01-05-00126-CV, trial cause number 2003-04414J; and J.D.M. is the subject of appeal number 01-05-00127-CV, trial cause number 2003-14864.
2. 	J.D.M. actually lived more with his paternal grandfather than with appellant. 
However, he was with appellant at the time of this occurrence.
3. 	The Department of Protective and Regulatory Services was renamed the
Department of Family and Protective Services effective February 1, 2004.  29 Tex. Reg. 3659
(2004) (notice of agency name change); see Act of June 2, 2003, ch. 198, §§ 1.01(c), 1.18,
1.23, 1.26, 2003 Tex. Gen. Laws 611, 611, 623, 635, 640, 641, 642 (name change effective
on date specified in transition plan required by section 1.23 of act). 
4. 	The fathers of D.N.C. and J.D.M. were in prison, and the whereabouts of
E.D.C.'s father were unknown. 
5. 	See Tex. Fam. Code Ann. § 161.001 (1)(A)-(G), (J)-(S), (2) (Vernon 2002
& Supp. 2006).
6. 	Appellant had a history with DFPS.  In 1998, after being evicted from her
apartment for non-payment of rent, appellant, her cousin, and their children were staying in
a motel room with only one bed.  Appellant, her two-week-old infant, and a couple of older
children were sleeping in the bed one night.  When appellant woke up, the infant was not
breathing and blood was coming from his mouth.  Appellant took the infant to a fire station
nearby, but he could not be resuscitated.  The autopsy report showed the cause of death as
asphyxia, but the manner of death was undetermined.  DFPS investigated, but found no
indication that appellant was at fault.  After this incident, DFPS provided services to
appellant, including parenting classes, which she completed.  In four other referrals to DFPS,
allegations of abuse or neglect were resolved as "Ruled out" or, in one instance, as "Unable
to Determine/Factors controlled."
7. 	At Jackson's trial in April 2004, appellant testified that she saw Jackson spank
T.J. two times: once on April 4 and once on April 5, 2003.  At the termination trial, appellant
said that she knew about the April 4 spanking because Jackson told her.  
8. 	Appellant's "role" in T.J.'s death, according to Aiken, was her failure to protect
T.J. from Jackson.
9. 	Newman also testified that he moved out of appellant's house when Jackson's
trial started, which was in April 2004. 
10. 	A party need not file a notice of appeal to bring a cross-point that presents
alternate or additional grounds for affirming a judgment.  Helton v. R.R. Comm'n, 126
S.W.3d 111, 120 (Tex. App.--Houston [1st Dist.] 2003, pet. denied).  
11. 	"If the court finds by clear and convincing evidence grounds for termination
of the parent-child relationship, it shall render an order terminating the parent-child
relationship."  Tex. Fam. Code Ann. § 161.206(a) (Vernon Supp. 2006).
12. 	In addition, the grandmother testified that, because Aiken and Cooney thought
that she should not live with the children, she would move out if the children were returned. 
Aiken's and Cooney's objections to the grandmother were based on her past criminal record
and her association with Newman, who, at the time of trial, was  no longer living with her. 
We note that, in spite of her criminal record, there is no evidence in the record that the
grandmother posed a danger to any of the children or that she continued to be involved in any
criminal activity.  DFPS knew at least by June 23, 2003 about the grandmother's criminal
record through a Family Evaluation conducted by the CCCC approximately two weeks after
DFPS took custody of the children.  Yet DPFS placed four of the children in the
grandmother's possession and left them there until December 2003.  
13. 	In its brief, DFPS refers us generally to Section I of its brief for other acts and
omissions of appellant.  Section I comprises 27 pages of argument and authority relating to
its section 161.001(1)(E) endangerment issue.  However, DFPS does not direct us to any
specific acts or omissions stated within those pages, nor does it make any specific argument
with reference to such acts or omissions. 
14. 	This Court is not reversing on unassigned error, as asserted by the dissent. 
DFPS's appointment as managing conservator was a consequence of the trial court's
termination of both parents' rights.  See Tex. Fam. Code Ann. § 161.207 (Vernon 2002). 
Because we have reversed the termination of appellant, the circumstances requiring the
appointment of a managing conservator under section 161.207 no longer exist, and reversal
of the appointment of DFPS as managing conservator is a consequence of reversing the
termination of appellant's parental rights. 
15. 	The dissent states that Family Code sections 161.205 and 263.404 are
inapplicable to this appeal because the trial court "actually ordered the termination of
Colbert's parental rights."  That was true at the time the trial court rendered it original order
of termination.  However, section 161.205 becomes applicable on remand because we have
reversed the trial court order and have rendered judgment that appellant's parental rights are
not terminated.  Section 161.205 is the controlling authority for how the trial court must
proceed on remand.  See Walker v. Department of Family and Protective Services, No. 01-06-00253-CV (Tex. App.--Houston [1st Dist.] December 21, 2006, no pet. h.).  Section
263.404 becomes applicable only if the trial court makes the findings required by that
section.  
