                                      NO. 07-09-0166-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL B

                                  NOVEMBER 23, 2009
                            ______________________________

                            IN THE INTEREST OF J.N., A CHILD
                          _________________________________

             FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

                    NO. 24,589; HONORABLE DAN MIKE BIRD, JUDGE
                          _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                           OPINION


       Appellant, Samantha Bradford, appeals a Final Order in Suit Affecting the Parent-

Child Relationship in which the trial court terminated the parent-child relationship between

Bradford and her daughter, J.N.1 By four issues, Bradford contends that there is legally

and factually insufficient evidence to support the judgment of termination. Concluding that

the record contains factually insufficient evidence that termination of Bradford’s parental

rights is in the best of the child, we will reverse the judgment and remand the cause.




       1
           See TEX . R. APP. P. 9.8(b)(1)(A).
                                         Background


        Bradford is the biological mother of J.N. (the child). In April of 2007, the Department

of Family and Protective Services (Department), appellee, received a report that the child

was extensively bruised. The Department investigated the report and discovered that the

child had a three to four inch, red and purple bruising in her vaginal and rectal area as well

as approximately five quarter-sized bruises on her chest. The child was taken to a hospital

for evaluation, which confirmed that the child’s condition was, in fact, bruising.


        On the evening during which the child sustained the bruising, Bradford indicated that

she had left the child with her boyfriend, Shaun McGee, when she went to work. Before

Bradford left for work, the child did not have any bruising or diaper rash in her vaginal or

rectal areas. According to the report received by the Department, McGee called Bradford

at work to inform her that the child was red. Bradford assumed that it was diaper rash so

she told McGee to put ointment on it. When Bradford returned home from work, she

checked on the child’s condition, but, due to it being dark at that time, she continued to

believe that the child simply had a bad case of diaper rash. While Bradford had previously

taken the child to the hospital for bad diaper rash, she did not seek medical attention on

this occasion because she was afraid that the Department would become involved in the

case.


        The Department filed suit to terminate the parental rights of Bradford due to

violations of Texas Family Code section 161.001(1)(D), (E), and (O) and because

termination would be in the best interest of the child. See TEX . FAM . CODE ANN . § 161.001


                                               2
(Vernon Supp. 2009).2 At the beginning of the resulting trial, genetic testing established

that Jeremy Cook was the biological father of the child. The trial court signed an order

establishing that Cook is the child’s father and the Department expressly indicated that it

was not seeking termination of Cook’s parental rights. After a bench trial, the trial court

found, by clear and convincing evidence, that Bradford had (1) knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which endangered the

physical or emotional well-being of the child; (2) engaged in conduct or knowingly placed

the child with persons who engaged in conduct which endangered the physical or

emotional well-being of the child; and (3) failed to comply with the provisions of a court

order that specifically established the actions necessary for Bradford to obtain the return

of the child. See § 161.001(1)(D), (E), (O). In addition, the trial court found, by clear and

convincing evidence, that termination of Bradford’s parental rights would be in the best

interest of the child. See § 161.001(2). On the basis of these findings, the trial court

ordered termination of the parent-child relationship between Bradford and the child.


       Bradford appeals the trial court’s order terminating her parental rights contending

that each of the trial court’s findings under section 161.001 is not supported by legally and

factually sufficient evidence.




       2
        Further references to the Texas Family Code will be by reference to “section ___”
or “§ ___.”

                                             3
                              Termination of Parental Rights


       Parents’ rights to “the companionship, care, custody and management” of their

children are constitutional interests “far more precious than any property right.” Santosky

v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In a termination

case, the State seeks not merely to limit those rights, but to end them finally and

irrevocably–to divest the parent and child of all legal rights, privileges, duties, and powers

normally existing between them, except for the child’s right to inherit. See § 161.206;

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).


       Because termination of parental rights is such a drastic act, due process requires

that the petitioner justify termination by clear and convincing evidence. See § 161.206(a);

In re G.M., 596 S.W.2d 846, 846-47 (Tex. 1980). Clear and convincing evidence is “the

measure or degree of proof that will 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.” § 101.007. Because

of the severity and permanency of the termination of a parent-child relationship, termination

proceedings should be strictly scrutinized and involuntary termination statutes are strictly

construed in favor of the parent. Holick, 685 S.W.2d at 20-21.


       Section 161.001 sets out a two-pronged test for the involuntary termination of a

parent-child relationship. See § 161.001. The trial court must find, by clear and convincing

evidence, that the parent has engaged in one of the grounds for termination found in

section 161.001(1) and that termination of the parent-child relationship is in the best

interest of the child. See § 161.001; Horvatich v. Tex. Dep’t of Protective & Regulatory


                                              4
Servs., 78 S.W.3d 594, 596 (Tex.App.–Austin 2002, no pet.). The trial court must find both

a statutory ground for termination and that termination would be in the best interest of the

child before it may terminate the parent’s rights. See Holley v. Adams, 544 S.W.2d 367,

370 (Tex. 1976); Horvatich, 78 S.W.3d at 596. While the trial court must find both prongs

to terminate, often, evidence of statutory grounds for termination will be relevant to the

determination of whether termination is in the best interest of the child. See In re M.A.N.M,

75 S.W.3d 73, 79 (Tex.App.–San Antonio 2002, no pet.); In re D.M., 58 S.W.3d 801, 814

(Tex.App.–Fort Worth 2001, no pet.).


                                    Standard of Review


       When both legal and factual sufficiency challenges are presented, the reviewing

court first reviews the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co.,

619 S.W.2d 400, 401 (Tex. 1981). Because termination requires that each of the two

prongs be established by clear and convincing evidence, review of the legal and factual

sufficiency of the evidence is necessarily affected by the burden of proof required at trial.

In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). As such, we review the legal sufficiency of

the evidence in a termination proceeding by considering all of the evidence in the light most

favorable to the prevailing party, indulging every reasonable inference in that party’s favor,

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

that its finding was true. Id. at 266. In a factual sufficiency review of a termination

proceeding, we review all of the evidence in a neutral light to determine whether the

evidence is such that the finder of fact could reasonably form a firm belief or conviction

about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

                                              5
                            Statutory Grounds for Termination


       By her second, third, and fourth issues, Bradford challenges the legal and factual

sufficiency of each of the statutory grounds for termination found by the trial court. Only

one finding alleged under section 161.001(1) is necessary to support a judgment of

termination. In re D.M., 58 S.W.3d at 813.


       In reviewing the legal sufficiency of the evidence, we will consider the evidence that

supports the trial court’s findings of the statutory grounds for termination and the

undisputed evidence. In re J.F.C., 96 S.W.3d at 268. We do not consider evidence that

the trial court could have reasonably disbelieved. Id.


       The trial court found that Bradford failed to comply with the provisions of a court

order that specifically established the actions necessary for the parent to obtain the return

of the child under section 161.001(1)(O). In an order entered on August 20, 2007, the trial

court ordered Bradford to pay $50 per month to the Department for child support, submit

to a psychological or psychiatric evaluation, attend and cooperate in counseling sessions,

successfully complete parenting classes, submit to a drug and alcohol dependency

assessment, submit to random drug testing, comply with each requirement in the

Department’s original or amended safety plan, and notify the Department and trial court

of her current residence address. The Department’s safety plan clarified some of the

requirements under the trial court’s order and, additionally, required Bradford to obtain and

maintain employment or show a means of providing financial support for the child and

obtain appropriate housing and maintain a safe and sanitary home. While there is some


                                             6
undisputed evidence that Bradford complied with certain portions of the trial court’s order,

there is evidence in the record that Bradford did not complete the ordered parenting

classes, failed to notify the Department of residence address changes, did not make any

monthly child support payments, and tested positive for marijuana on two occasions.


       Considering all of the evidence in the light most favorable to the trial court’s finding

and indulging every reasonable inference in favor of that finding, we conclude that the trial

court could reasonably have formed a firm belief or conviction that Bradford failed to

comply with the provisions of a court order that specifically established the actions

necessary for Bradford to obtain the return of the child. Thus, the evidence is legally

sufficient to support the trial court’s finding of a statutory ground for termination.


       Considering the evidence in a neutral light, we are still presented with

uncontroverted evidence that Bradford failed to comply with the provisions of the trial

court’s order. While it is true that Bradford completed about half of the parenting classes

she was ordered to complete, submitted to a psychological evaluation, attended counseling

until terminated by the counselor, and was evaluated and tested for drugs, Bradford still

failed to comply with all of the provisions of the trial court’s order.3 Considering this


       3
         Bradford contends that the statutory ground for termination based on the failure
to comply with a court order requires proof of a contumacious failure to comply. However,
the authority cited by Bradford to support this position does not support the position.
Bradford cites In re J.R., 171 S.W.3d 558 (Tex.App.–Houston [14th Dist.] 2005, no pet.),
in support of her contention that the statutory ground requires contumacious violation of
a court order, but the opinion in no way attempts to establish such a standard. In fact, the
court expressly states that the issue of whether proof of section 161.001(1)(O) had been
presented was not before it. See id. at 570 n.5. Further, the legislature included a
statutory ground for termination based on a contumacious refusal to comply with a court
order in section 161.001(1)(I). Clearly, if the legislature had intended for the failure to

                                              7
undisputed evidence, we cannot say that the trial court could not have reasonably formed

a firm belief or conviction of the statutory ground for termination found in section

161.001(1)(O). See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).


       Because only one statutory ground for termination under section 161.001(1) is

necessary to support a judgment of termination, we need not address Bradford’s

challenges to the sufficiency of the evidence supporting the findings under section

161.001(1)(D) and (E). See TEX . R. APP. P. 47.1; In re D.M., 58 S.W.3d at 813.


       We overrule appellant’s second, third, and fourth issues.


                                  Best Interest of the Child


       By her first issue, Bradford contends that the evidence is legally and factually

insufficient to support the trial court’s conclusion that termination is in the best interest of

the child. To terminate a parent’s rights, the evidence must establish by clear and

convincing evidence that termination is in the best interest of the child. See Holley, 544

S.W.2d at 370; Horvatich, 78 S.W.3d at 596. There is a strong presumption that the best

interest of a child is served by keeping custody in the natural parent. In re D.T., 34 S.W.3d

625, 641 (Tex.App.–Fort Worth 2000, pet. denied). Termination should not be used to

merely reallocate children to better and more prosperous parents. In re D.M., 58 S.W.3d

at 814.



comply with a court order under section 161.001(1)(O) to have required a contumacious
failure, it could have easily expressed that intent. Compare § 161.001(1)(I) with §
161.001(1)(O).

                                               8
       In determining whether termination of a parent-child relationship would be in the

best interest of the child, courts may consider a number of factors, including: the desires

of the child, the present and future physical and emotional needs of the child, the present

and future emotional and physical danger to the child, the parental abilities of the person

seeking custody, programs available to assist those persons in promoting the best interest

of the child, plans for the child by those individuals or by the agency seeking custody, the

acts or omissions of the parent that may indicate that the existing parent-child relationship

is not appropriate, and any excuse for the acts or omissions of the parent. Holley, 544

S.W.2d at 371-72. We will review the evidence under each of the Holley factors to

determine the sufficiency of the evidence to support the trial court’s best interest

determination.


       At the time of trial, the child was two and a half years old. As such, the child was

not able to express her desires. However, the evidence establishes that Bradford regularly

visited the child, interacted appropriately with the child during these visits, and had bonded

with the child. There is no evidence that the child has any greater physical or emotional

needs than any other two year old child. The Department presented evidence that

Bradford has a history of being involved in abusive relationships, however, the caseworker

testified that the Department does not believe that Bradford physically abused the child.

Additionally, the caseworker expressly testified that Bradford would pose no danger to the

child during supervised visitation. Bradford’s failure to comply with all provisions of the trial

court’s order, as discussed above, gives rise to a reasonable inference that Bradford may

not have the parental abilities to put the best interest of the child first. In addition,


                                               9
Bradford’s testing positive for drugs on two separate occasions, even though both

occasions occurred at times when Bradford did not have possession of the child, is

significant when considering Bradford’s parental abilities. While there are programs

available to assist Bradford in promoting the best interest of the child, Bradford’s failure to

comply with the trial court’s order and the Department’s service plan and avail herself of

such programs renders the availability of such programs less significant. As to Bradford’s

acts or omissions that affect whether the parent-child relationship is proper, there was

undisputed evidence that Bradford continued her relationship with McGee after she was

aware that the Department suspected that McGee had caused the child physical injuries.

While there is no direct evidence that Bradford allowed McGee to have contact with the

child after this incident, she maintained the relationship with McGee after the incident and

it is reasonable to infer that she allowed McGee to have contact with the child during the

time that Bradford had custody of the child. The Department indicated that its plans for the

child were to terminate Bradford’s parental rights so that the child could be adopted. The

Department also indicated that it would first attempt to place the child with her biological

father.     However, termination of Bradford’s parental rights is not justified by the

Department’s plan for adoption of the child so long as the biological father retains his

parental rights.


          Considering this evidence in the light most favorable to the trial court’s determination

that termination would be in the child’s best interest, we conclude that the evidence of

Bradford’s history of abusive relationships, positive drug tests, failure to comply with the

trial court’s order and avail herself of programs that could assist her in promoting the best


                                                 10
interest of the child, combined with the reasonable inference that she allowed McGee to

have contact with the child after she was aware that McGee was suspected of having

injured the child is sufficient evidence to allow the finder of fact to have formed a firm belief

or conviction that termination of Bradford’s parental rights would be in the child’s best

interest. See In re J.F.C., 96 S.W.3d at 266.


       However, when the totality of the evidence is reviewed in a neutral light, we

conclude that the evidence is insufficient to establish that termination of the parent-child

relationship would be in the best interest of the child. The Department’s plans for the child

are to attempt to place the child with her biological father and, if those attempts fail, to

attempt to place the child with an adoptive family. Because the Department cannot adopt

the child so long as the biological father retains his parental rights, termination of

Bradford’s parental rights will not necessarily advance the goal of prompt and permanent

placement of the child in a safe environment. See § 263.307(a). Further, termination of

Bradford’s parental rights would remove Bradford’s duty to support the child. See §

161.206; Holick, 685 S.W.2d at 20. The child’s biological father testified that he does not

believe that it would be in the child’s best interest for Bradford’s rights to be terminated.

Bradford and the child have developed a bond. The Department’s caseworker conceded

that Bradford would pose no threat to the child during supervised visits. The child’s

biological father testified that he would be willing to comply with any court orders that

allowed Bradford to have supervised visitation with the child.


       We must remain mindful that there is a strong presumption that the best interest of

a child is served by keeping custody in the natural parent. In re D.T., 34 S.W.3d at 641.

                                               11
While the Department need not prove definitive plans for the child’s placement, see In re

C.H., 89 S.W.3d at 28, we can see no compelling benefit that would be gained by severing

the bond that exists between Bradford and the child at this time, especially in light of the

Department’s current plans to attempt to place the child with her biological father. The

evidence established that the child was doing well in the temporary managing

conservatorship of the Department with Bradford visiting the child under supervision. As

the evidence establishes that Bradford poses no threat to the child during supervised visits

and since the Department’s goal of providing the child stability and permanence through

adoption cannot currently be accomplished, we cannot see how the finder of fact could

form a firm belief or conviction that the drastic act of termination would be in the best

interest of the child.4 Consequently, we conclude that the evidence is factually insufficient

to support the trial court’s determination that termination of Bradford’s parental rights is in

the best interest of the child.


       We sustain Bradford’s first issue.




       4
          Our conclusion that the Department has failed to present factually sufficient
evidence regarding the best interest of the child is not based on the Department’s inability
to identify its definitive plans for the child. Rather, our conclusion is based, in large part,
on the Department’s reliance on benefits that the child will only obtain if the child is
permanently placed in a stable environment. Since the Department will first attempt to
place the child with her biological father, termination of Bradford’s parental rights will not
significantly advance the Department’s plans and the maintenance of Bradford’s parental
rights will not significantly impede the Department’s plans.

                                              12
                                         Conclusion


       Because we hold that the record contains factually insufficient evidence that

termination of Bradford’s parental rights is in the best interest of the child, we reverse the

trial court’s order and remand the cause for a new trial on all issues.




                                           Mackey K. Hancock
                                                Justice




                                             13
