Opinion issued March 26, 2019




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-18-00729-CV
                            ———————————
                 IN THE INTEREST OF R. J., JR., A CHILD



                    On Appeal from the 344th District Court
                          Chambers County, Texas
                        Trial Court Case No. CV29910


                            DISSENTING OPINION

      Before the Texas Department of Family and Protective Services intervened

in E.M.’s and her husband R.J.’s lives, and the lives of their children, the family’s

circumstances were untenable. E.M. and R.J. struggled with homelessness and

finding steady employment. R.J. had the additional barriers of debilitating mental

illness resulting in multiple suicide attempts since childhood and a long-standing
history   of   drug    use,   including       benzodiazepines,   amphetamine,   and

methamphetamine. After E.M. and R.J. failed to discontinue the use of drugs and

to participate in services in 2015, the Department asked them to leave their son

“Ray” with his grandmother and to find somewhere else to live. Ray was just nine

months old when he was removed from his parents.

      E.M. and R.J. moved to a small town about five hours from where the

Department eventually placed their son. E.M. began working as a floor manager at

the local Denny’s, and R.J. eventually worked as a cook. They were able to stagger

their shifts so that they did not require outside child care. They had health

insurance.

      They lived with their youngest son, Alex, and E.M.’s three children from a

prior relationship came to live with them in 2017. They lived in a house that they

wanted to buy someday. Under the parents’ supervision, the children were reading

35 to 40 minutes per day. Shortly before the hearing that terminated their parental

rights, E.M. and R.J. were able to obtain a vehicle.

      While E.M. and R.J. worked imperfectly at putting their lives together, the

Department was successful in terminating their parental rights as to Ray’s younger

sister, Jane. That termination was used as a predicate finding to terminate their

rights as to Ray in this case. Ray’s case lasted 28 months. Although under current

law, if Ray’s case had remained unresolved as long as it did, the court would have


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lost jurisdiction to terminate parental rights, that law was not in effect when this

case began. Because the case lasted most of Ray’s life, it is not surprising that he

bonded with his foster placement.

      Although he had been in therapy for two years by the time of the termination

hearing and intended to continue it, R.J. reported that he had reduced or eliminated

his psychiatric medications by the time of the termination hearing. When he was

not taking his medications in 2016, he used cocaine and attempted to commit

suicide shortly after Jane was born. E.M. saved his life.

      R.J. continued to struggle. In April 2018, after consuming alcohol, he

allegedly pushed E.M. into a chair, prompting a Department investigation into the

welfare of their youngest child after police were called. R.J. was required to move

out of the house. He moved back in shortly before Ray’s termination hearing.

      In addition to a predicate violation, the party seeking to terminate another’s

parental rights must establish by clear and convincing evidence that termination is

in the child’s best interest. TEX. FAM. CODE § 161.001(b)(2); see id. § 153.002. The

clear and convincing standard is the 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 proved. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980) (quotation and

citation omitted). There is a strong presumption that the child’s best interest will be




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served by preserving the parent-child relationship. In re J.F.C., 96 S.W.3d 256,

294 (Tex. 2002). To prevail, the Department must rebut this presumption.

      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).

Accordingly, appellate courts strictly scrutinize termination proceedings and

strictly construe involuntary termination statutes in favor of the parent. In re

E.N.C., 384 S.W.3d 796, 802 (Tex. 2012).

      Because of the strong presumption that maintaining the parent-child

relationship is in the child’s best interest, “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.) (citation omitted); see In re E.N.C., 384 S.W.3d at 809.

      Courts may consider the following non-exclusive factors in reviewing the

sufficiency of the evidence to support the best-interest finding: the desires of the

child; the physical and emotional needs of the child now and in the future; the

emotional and physical danger to the child now and in the future; the parental


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abilities of the persons seeking custody; the programs available to assist those

persons seeking custody in promoting the best interest of the child; the plans for

the child by the individuals or agency seeking custody; the stability of the home or

proposed placement; acts or omissions of the parent that may indicate the existing

parent-child relationship is not appropriate; and any excuse for the parent’s acts or

omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

      The Holley factors are non-exclusive. See id. at 372. In evaluating Ray’s best

interest, it would seem proper to take account of the significant strides E.M. and

R.J. made. See In re K.C.M., 4 S.W.3d 392, 399 (Tex. App.—Houston [1st Dist.]

1999, pet. denied) (reversing parental termination where mother “turned her life

around” in jail because a “firm belief or conviction” that the best interest of the

child required termination of mother’s rights “could not be fairly reached”),

disapproved of on other ground by In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). To

rise from being unstable in housing, transportation, and employment to obtaining

stable full-time work with benefits and being able to rent a three-bedroom home

and reunite with children who had to be placed with relatives is noteworthy. The

parents have become able to provide for the physical needs of their children,

including Ray. See Holley, 544 S.W.2d at 372. Spending time daily reading and

playing with their children and thinking about the children’s college education is

tending to the emotional needs of the children now and in the future. See id.


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      Once a family is under the Department’s microscope and one child is

removed for neglect or endangerment, return of other children can become a

Herculean task. This is especially so where the family suffers from addiction,

mental illness, housing instability, poverty, or, in this case, all four. When the

proceedings take more than two years and parent-child visits are logistically

difficult, it is very easy to find that a child too young to state his preferences has

bonded to his new caretakers. E.M. and R.J. have improved dramatically in two

years. But as the pushing incident shortly before trial demonstrates, R.J. is not

completely recovered.1 In looking at all the evidence, not just the evidence



1
      Although under different circumstances this Court has concluded that “[e]vidence
      that a person has engaged in abusive conduct in the past permits an inference that
      the person will continue violent behavior in the future,” Jordan v. Dossey, 325
      S.W.3d 700, 724 (Tex. App.—Houston [1st Dist.] 2010, pet. denied), using R.J.’s
      2013 conviction to permit an inference that he will be abusive toward E.M. or his
      children in the future is not well supported. First, the offense occurred before R.J.
      sought treatment for his PTSD and two years before Ray was born. Second, there
      is no information that the offense was directed toward E.M. or any other details
      about the offense. Third, in Jordan, the father was a sex offender, had pushed,
      kicked, and punched the mother in the face while she was pregnant with the child
      on at least 10 occasions, and, after the child was born, the mother saw blood and
      bruises on the child after the child was in the father’s care. Id. at 707. The facts in
      Jordan were sufficient to show a course of conduct that would permit an inference
      about future conduct. Without knowing more, one assault conviction before Ray
      was born and one incident with the mother four years later does not give a factual
      trajectory that would support an inference of future violent conduct here. Assault,
      even felony assault, may be committed by offensive touching or reckless conduct.
      TEX. PENAL CODE § 22.01(a)–(b). The inference here is also less well founded
      because R.J. has engaged in prolonged therapy and medication to address his
      mental health. The inference is not the kind that “will produce in the mind of the
      trier of fact a firm belief or conviction as to the truth of the allegations.” See In re
      J.O.A. 283 S.W.3d 336, 344 (Tex. 2009) (citing TEX. FAM. CODE § 101.007).
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supporting the termination decision, In re J.F.C., 96 S.W.3d at 264, E.M. and R.J.

are not perfect parents; given their improvements, however, the evidence was not

factually sufficient to conclude that termination would be in Ray’s best interest.

                                      Conclusion

      In light of the dramatic improvements that E.M. and R.J. made in terms of

their ability to care for the physical and emotional needs of their children,

including Ray, there was factually insufficient evidence that termination was in

Ray’s best interest. I respectfully dissent.




                                                   Sarah Beth Landau
                                                   Justice

Panel consists of Justices Keyes, Higley, and Landau.

Justice Landau, dissenting from the judgment.




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