Affirmed as Modified and Dissenting Opinion filed June 27, 2019.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-18-01039-CV

              IN THE INTEREST OF L.A.J., A CHILD, Appellant

                    On Appeal from the 314th District Court
                             Harris County, Texas
                      Trial Court Cause No. 2017-05553J

                             DISSENTING OPINION

      Because I disagree that the Department met its burden of proving by clear
and convincing evidence that termination of Mother’s parental rights is in Levi’s
best interest, I respectfully dissent. We are to strictly scrutinize involuntary
termination proceedings and statutes in the parent’s favor. The majority fails to do
so here.

      The termination of parental rights involves fundamental constitutional rights.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Holick v. Smith, 685 S.W.2d 18, 20
(Tex. 1985). “Termination of parental rights, the total and irrevocable dissolution
of the parent-child relationship, constitutes the ‘death penalty’ of civil cases.” In re
K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring). We are
bound to strictly scrutinize termination proceedings and must strictly construe
involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d
796, 802 (Tex. 2012). Keeping in mind the elevated burden of proof, as well as the
non-exclusive factors enunciated in Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976), I would conclude the trial court’s finding that termination is in Levi’s
best interest is not supported by clear and convincing evidence. Considering, as we
must, evidence that both supports and contradicts the finding, I would conclude
there is not factually sufficient evidence to support the finding. See In re C.H., 89
S.W.3d 17, 25 (Tex. 2002).

      The Department first intervened in Levi’s life when he was born. There is
evidence in the record that he was born at 34 weeks gestation and evidence that he
was born at 37 weeks gestation. Therefore, there is contradicting evidence as to
whether Levi was born prematurely. There is no evidence that Levi was born
prematurely because of any actions by Mother. Mother told the investigator that
she had eaten cookies at a Halloween party that she later discovered were laced
with marijuana. Levi did not suffer from any withdrawal symptoms or
complications.

      Mother’s own involvement with the Department began at a similarly young
age. Although the specific circumstances are unknown, we do know that Mother
was in the foster care system as a young child, adopted into a family around the
age of two, and was diagnosed with post-traumatic stress disorder from her
experiences growing up in the foster care system.

      Mother has four other children who live with Father in Dallas. Although
Mother and Father are estranged, Mother maintains regular contact with the four
children. Financial circumstances have prevented her from visiting them in person.

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Throughout the pendency of the case, Mother provided the Department with
several phone numbers for Father. However, the Department was unable to make
contact with him. While the current case does not involve any of the four children,
the Department presented evidence that it had prior investigations concerning those
children. The record is unclear as to whether the prior investigations were closed
because they were resolved or unable to be completed. What is undisputed,
however, is that at the time of trial, the Department did not have a current open
case regarding the other four children.

      By the trial date, Mother had completed all of her court-ordered treatment
and therapy appointments except for one therapy session that had been rescheduled
because the therapist needed surgery. Mother had completed an additional class
that was not part of her plan but had been recommended by her counselor. She had
also discussed after-care appointments with her therapist so that she could continue
with her therapy and treatment after her court-ordered service plan was completed.

      Mother provided the court with proof of employment and with proof of
housing. Mother testified that she was planning to continue her education to better
herself and to help her children. Mother had stable employment, had explored
daycare options for Levi, had a stable support network, had attended therapy
beyond what was ordered on her family service plan, and had even planned to
continue after-care with her therapist. Despite Mother’s financial struggles, she
was able to set herself up with stable housing and employment. In short, Mother
exhibited both willingness and ability to improve her life for herself and for her
children.

      The Department was required to prove by clear and convincing evidence not
only that Mother engaged in an act or omission listed in subsection 161.001(b)(1)
but also that termination is in Levi’s best interest. See Tex. Fam. Code

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§ 161.001(b)(1)–(2); In re E.N.C., 384 S.W.3d at 802. Proof of one element does
not alleviate the Department’s burden of proving the other. Tex. Fam. Code
§ 161.001(b)(1)–(2). There is a strong presumption that preserving the parent-child
relationship is in the child’s best interest, and “the 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 W.C., 98 S.W.3d 753, 758 (Tex. App.—Fort Worth
2003, no pet.); see also In re J.F.C., 96 S.W.3d 256, 294 (Tex. 2002) (Hankinson,
J., dissenting).

         In reviewing all of the evidence, including evidence that is contrary to the
trial court’s findings, I consider the following evidence to be particularly
compelling:

         1. Mother’s marijuana levels steadily decreased, and she had no urinalysis
test results that were positive for marijuana after January of 2018;

         2. Mother regularly visited Levi, and her visits were appropriate;

         3. Mother actively engaged in her therapy sessions and completed classes
beyond what was ordered on her family service plan;

         4. Mother had provided proof of employment and proof of housing to the
court;

         5. Mother had explored daycare options for Levi; and

         6. Mother had plans to continue her education to better herself and her
children.

         Considering the Holley factors and reviewing all the evidence in the record
before us, I would conclude that the Department failed to meet its burden to
establish by clear and convincing evidence that termination of Mother’s parental
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rights is in Levi’s best interest. See Holley, 544 S.W.2d at 371–72 (listing factors).
I therefore disagree that the trial court could have reasonably formed a firm belief
or conviction that termination of Mother’s parental rights was in Levi’s best
interest. See Tex. Fam. Code. § 161.001(b)(2); In re E.N.C., 384 S.W.3d at 809; In
re J.F.C., 96 S.W.3d at 266, 272; see also In re K.C.M., 4 S.W.3d 392, 399 (Tex.
App.—Houston [1st Dist.] 1999, pet. denied) (holding evidence factually
insufficient to support trial court’s determination that termination was in child’s
best interest when it was undisputed that mother had been drug-free and sober for
10 months preceding trial and that she had “turned her life around” while in jail,
including completing her GED and parenting and life skills courses), disapproved
of on other groundsby In re C.H., 89 S.W.3d 17 (Tex. 2002).

      In examining the first Holley factor, the child’s desires, the majority
concludes that Mother’s visitation difficulties and the fact that she never had
custody of Levi weighs in favor of termination. I respectfully disagree. At the time
of trial, Levi was eleven months old and unable to communicate his wishes.
Mother did have some difficulty with her visitation schedule due to her
transportation issues and work schedule. However, she visited Levi regularly, and
the caseworker testified that the visits were appropriate. If we are to presume that
keeping a child with his natural parent is in the best interest of the child absent
clear and convincing evidence to the contrary, this factor is, at best, neutral.

      The next Holley factors are the emotional and physical needs of the child
now and in the future and the emotional and physical danger to the child now and
in the future. There was no evidence regarding any future danger that Levi would
suffer at the hands of his mother other than speculation by the Department that is
based, in large part, on Mother’s early drug test results and the Department’s
inability to contact Father and the four other children. Given the elevated burden of

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proof in termination cases, I cannot conclude that such testimony amounts to clear
and convincing evidence that Mother is unable to meet her child’s needs or that she
presents a danger to him. See Tex. Fam. Code § 161.001(b)(2) (trial court’s best-
interest finding must be supported by clear and convincing evidence in the record);
In re E.N.C., 384 S.W.3d at 808 (holding that lack of evidence cannot “contradict a
finding as if it were evidence supporting a finding”). Based on the lack of evidence
concerning any recent issues and the consistent strides Mother made to improve
her situation, the trial court could not reasonably infer that Mother’s past conduct
would reoccur in the future so as to prevent her from providing Levi with a stable
home. I would conclude that these factors weigh against the conclusion that
termination is in Levi’s best interest.

      Turning next to the parental abilities of the individuals seeking custody, the
Department failed to show that Mother would not be able to meet Levi’s needs.
Mother’s counselor told the caseworker that Mother was an active participant in
her therapy and that she had demonstrated significant progress in treatment, had
demonstrated values as a mother, and had gained the necessary tools to
successfully live a healthy lifestyle. I would conclude that this factor also weighs
against the conclusion that termination is in Levi’s best interest.

      The next Holley factors are Mother’s plans for Levi and the stability of the
proposed home. Mother provided evidence of employment and housing. She also
testified about her future plans to pursue higher education and demonstrated that
she had been planning ahead for Levi’s care. The Department did not present any
evidence to refute this testimony. Given that the Department failed to show that
either Mother’s future plans for Levi or her home were inappropriate or unsuitable,
I would conclude that these factors also weigh against termination.

      Next, we turn to the plans for the child by the agency seeking custody and

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the stability of the proposed placement. The evidence introduced at trial reflects
favorably on the foster care placement. The caseworker testified that Levi was
happy, bonded, and well-adjusted to his foster family and that the foster family
wished to adopt him if reunification was not achieved. Mother also presented
evidence of her rehabilitation, including therapy, housing, and employment.
Although these factors could be viewed as weighing in favor of termination, I
would consider them to be neutral given that the “best-interest standard does not
permit termination merely because a child might be better off living elsewhere.”
See In re M.G.D., 108 S.W.3d 508, 528 (Tex. App.—Houston [14th Dist.] 2003,
pet. denied) (Frost, J., concurring).

      Finally, we consider the acts or omissions of the parent that indicate the
parent-child relationship is improper, as well as any excuses for the behavior.
Mother recognized that her living situation, employment situation, and drug test
results were harmful to maintaining her relationship with Levi so she worked to
complete all of the court-ordered services, which included therapy, treatment, and
counseling. She participated in counseling services beyond what was ordered by
the court and provided the court with proof of employment and housing. When
considering the best interest of the child, evidence of a recent turnaround in
behavior by the parent does not totally offset evidence of a pattern of instability
and harmful behavior in the past. Id. at 513–14. Here, however, Mother steadily
improved and complied with the court-ordered plan for reunification; thus, I would
find this factor weighs against termination.




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      Considering the dramatic improvements that Mother made in terms of her
ability to care for Levi’s physical and emotional needs, I would find that there was
factually insufficient evidence to support the trial court’s finding that termination
was in Levi’s best interest.




                                       /s/       Frances Bourliot
                                                 Justice


Panel consists of Justices Christopher, Bourliot, and Zimmerer (Zimmerer, J.,
concurring as to result only) (Bourliot, J., dissenting).




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