Opinion
01-23-00693-CV
03-19-2024
IN THE INTEREST OF T.J.I.L., A CHILD
On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2022-00677J
Panel consists of Adams Chief Justice and Guerra and Farris, Justices.
MEMORANDUM OPINION
Terry Adams, Chief Justice.
This is a suit by the Texas Department of Family and Protective Services ("DFPS") to terminate a parent-child relationship. After a bench trial, the trial court terminated the parental rights of appellant T.L. ("Father") to his minor child, T.J.I.L. ("Theresa"), based on its findings under subsections 161.001(b)(1)(E), (N), (O), and (Q) of the Texas Family Code and its finding that termination of the parent-child relationship was in the child's best interest. The trial court appointed DFPS as the managing conservator of the child.
We use an alias to refer to the child, her parents, and her siblings. See TEX. R. APP. P. 9.8(b)(2) (in parental-rights termination cases, "the court must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor's identity, to the minor's parent or other family member"). In the briefs, the parties refer to the child as "Theresa." The parties also refer to Theresa's siblings, who are not subjects of this appeal, as "Thomas" and "Kurt."
See TEX. FAM. CODE § 161.001(b)(1)(E) (endangerment of child), (N) (constructive abandonment), (O) (failure to comply with terms of family service plan), (Q) (conviction of criminal offense and confinement and inability to care for child for two years).
In this accelerated appeal, Father challenges the trial court's order terminating his parental rights. In five issues, he contends that the evidence was legally and factually insufficient to support the trial court's findings that he engaged in the predicate acts set forth in subsections 161.001(b)(1)(E), (N), (O), and (Q), and that termination of his parental rights is in Theresa's best interest.
See id. § 263.405(a); TEX. R. APP. P. 28.4.
We reverse and remand in part and affirm in part.
Background
Father and Mother met when Father was 15 and Mother was in her early 20s. Father testified that he and Mother were never in a "relationship," but that Mother was living with Father for a short time when they first met. When Father met Mother, she already had two children. Theresa was born on March 30, 2016, while Father was incarcerated on a conviction for aggravated assault with a deadly weapon, for which he received a three-year sentence. At the time Theresa was born, Father and Mother were not together.
In the proceedings below, the trial court also terminated Mother's parental rights to three of her children, Thomas, Theresa, and Kurt. Mother did not appeal.
Father was released from prison on April 27, 2018, after serving his three-year sentence for aggravated assault. He was out of jail for four months when he was arrested for engaging in organized crime. He was convicted in April 2019 and received an eight-year sentence-which he was serving when Theresa was removed from Mother's care and at the time of trial.
Father also testified that he was also charged with burglary of a vehicle and evading arrest, but that those charges were dismissed.
With respect to Father's criminal history preceding Teresa's birth, the trial court admitted a November 24, 2015 judgment adjudicating his guilt for the offense of aggravated assault with a deadly weapon, for which Father received three years imprisonment. In that judgment, the trial court found that it had previously placed Father on community supervision for five years and that, Father had violated the terms of his community supervision by committing a new offense. The trial court also admitted an April 23, 2019 judgment of conviction for engaging in organized criminal activity, to which Father pleaded guilty and received eight years imprisonment.
In addition to these two convictions, the CASA report listed the following additional charges:
• 2014 - misdemeanor resisting arrest; guilty plea; three days in Harris County Jail
• 2014 - misdemeanor burglary of a vehicle; guilty plea; 150 days in Harris County Jail
• 2014 - felony assault bodily injury; dismissed (convicted in another case)
• 2015 - felony retaliation; dismissed (convicted in another case)
• 2018 - misdemeanor evading arrest; dismissed (convicted in another case)
Kristen Turnipseed, a conservatorship caseworker for DFPS, testified that, prior to this case being initiated in 2022, DFPS had received a report of Mother's neglectful supervision of Theresa and her older brother Thomas and of drug use. This resulted in a family-based services case, and Thomas and Theresa were placed with relatives and a safety plan was put into place. Turnipseed testified that Mother violated that safety plan, and, in April 2022, DFPS received another report of neglectful supervision of Thomas and Theresa. Turnipseed testified that DFPS investigated and, although Mother tried to hide Theresa in the back of her apartment, DFPS found both Thomas and Theresa in Mother's care. Thomas and Theresa were removed from Mother's care and placed into foster care. In September 2022, Thomas and Theresa moved from foster care into the care of Mother's cousin.
At the start of these proceedings, Father believed that Thomas was also his child. However, DNA testing conducted during the pendency of this case excluded Thomas as Father's child. In its reformed final decree for termination, the trial court found that Father was not the father of Thomas.
The safety plan was not introduced into evidence.
Mother's cousin also had custody of Kurt, another of Mother's children. Kurt was removed from Mother's care after he and Mother tested positive for illegal substances. Kurt is not Father's child.
Father testified that he was not aware that Theresa had gone to live with her current caregiver, Mother's cousin, until around February 2023, when he learned of this case. Father testified that, as far as he knew, Theresa had been residing with her godparents while he was incarcerated. He stated that he kept in touch with her godparents, that he connected with them, and that they brought Theresa to visit him while he was in prison. Father testified that although he had been incarcerated for much of Theresa's life, he tried to stay in contact with her, her godparents, and his grandmother. He testified that, while Theresa was living with her godparents, he would mail her cards, letters, and pictures "all the time." He testified that although he was not personally able to provide for Theresa while incarcerated, his mom, sister, and grandmother would "pick up what [he] couldn't . . . while [he] was incarcerated."
The specific timeline of where Theresa lived, with whom she lived, and when she lived there before DFPS became involved is not clear from the record. Father testified that Theresa lived with her godparents while he was incarcerated, until she was placed with her current caregiver. It is not clear if her godparents are familial relatives. The removal affidavit indicates that Theresa was not living with Mother from possibly as early as 2017, but it does not state with whom Theresa was living. The removal affidavit further states that "[Mother's] children" were placed with relatives after Kurt was removed from Mother's care in March 2021 after testing positive for drugs at birth, but it does not identify which children. But, according to the removal affidavit, Theresa was allowed to visit Mother on Spring Break in 2022 and was removed from her care in April 2022, after Mother refused to return her. Theresa was then placed into foster care and ultimately moved into Mother's cousin's home, where she currently resides.
Father further testified that he sent financial support every year to Theresa's godparents, who were raising her. He further stated that he has been taking care of his daughter since he has been "gone" and that his mother, sister, and grandmother have been "doing for [his] daughter." He also testified that he tried to send financial support to Mother, including offering to pay for a birthday party for Theresa, but that Mother did not accept it. He admitted that he had not sent any money to anyone for Theresa in 2022 or 2023.
Father admitted that the last time he saw Theresa was when his mother brought her to visit him in 2021. He testified that Theresa knows he is her father and calls him "dad."
Father testified that he was up for parole in November 2023, but that his release date was not until September 2, 2026. Father explained that while he is still in prison, he plans to get his GED so that when he is released, he can "get a job, [a] stable place to stay in, [and] continue to finish this process with getting [his] daughter."
Father acknowledged that, because he is incarcerated, he does not currently have a stable place for he and Theresa to live upon his release and that he is not currently employed. He stated, however, that he has done everything he can, given his circumstances, to try and better himself for Theresa.
For example, Father explained that he has taken three classes while incarcerated. The first, "Bridges to Life," is a course that explains how to forgive people and handle emotions such as anger. The second, "Quest for Authentic Manhood," is a cognitive intervention class that taught him how to conduct himself as a man in society and about the "four faces of a man: the king case, the warrior face, the love face, and the friend. They're the four faces that every man must have in order to become a successful man in today's society." And the third, a cognitive life skills class, taught him to adjust his thought patterns and belief system, so that on his release, he will know how to get out and do something productive with himself. Father testified that the Quest for Authentic Manhood class had a parenting skills component, which taught him the need to teach children things they should and should not do, and to correct them when they do something wrong. Father sent copies of his certificates of completion of these three classes to Turnipseed.
Father testified that he had completed the Bridges to Life class and was in the process of taking the other two classes before Turnipseed came to visit him and before he found out about this case. Father also explained that he had a mentor, field minister Adrian Lee, while in prison, who wrote a letter to the court in support of Father.
Father testified that, ideally, he would like to see Theresa placed with his aunt or grandmother, but that he "really [didn't] want to separate her from her brother." He agreed that it was a hard decision for him to make because he wanted Theresa to know his family, but also wanted her to be with her siblings.
Father testified that he understood that the goal of DFPS was to have Theresa remain with her current caregiver and, if his parental rights were terminated, to have her current caregiver adopt her. Father testified that he was concerned about this because he did not know the current caregiver and was concerned that he would not be able to have any contact with Theresa in the future. Father testified that he asked his family to have contact with Theresa's caregiver because he wanted his daughter to grow up and know her family and he wanted his family to be able to "stick in and provide for [her] in ways" while he is in prison.
Father testified that he did not want the trial court to terminate his parental rights because he wants a chance to be a father to Theresa and to remain in some type of relationship with her.
At trial, Turnipseed testified that Father has expressed interest in Theresa. Turnipseed acknowledged that she received copies of the certifications of completion of the classes Father took in prison, as well as the letter from his mentor, Lee. While these were positive steps taken by Father, Turnipseed testified that these were not all the steps Father needed to take to complete his family service plan ("FSP").
The trial court admitted into evidence Father's FSP, which listed the primary permanency goal as "relative/fictive kin, conservatorship" and the concurrent goal as "relative/fictive kin, adoption." Although the FSP included a number of actions for Father to take, it specifically recognized that Father could complete only those services available to him in prison, with the remainder to be completed upon release:
It is understood by the department that [Father] will complete any services he is available too [sic] while incarcerated and will mail the certificates and provide contacts for who provided the service to the caseworker. All other services will be expected to complete once he is released from prison.
One of the requirements of Father's FSP was to complete basic parenting classes and to submit a written report detailing, among other things, what he learned in those classes, why those classes were made a part of the service plan for Father, and how the completion of the class will affect the best interest of the child. The FSP also required Father to provide Turnipseed with a certificate of course completion and the written report within 14 days of completion of the class.
Turnipseed testified that none of the classes Father took were verified parenting classes, and she "wasn't able to verify with the providers that he did complete those classes past more than just receiving a certificate or what his education was in those classes, if he did learn anything from those classes." Turnipseed testified that his FSP asked for a written or verbal statement of what he learned in the classes "so that CPS can evaluate what he has learned and if he's able to show what he has learned once he's able to have contact with his child[]." Turnipseed agreed that the FSP requires a written statement related to what he has learned in the classes, but that she would have accepted either a written or verbal statement. She agreed that Father's testimony at trial was the first time he had given a statement on what he had learned in these classes.
Father testified that parenting classes were not available to him on his unit, but that he informed Turnipseed that he was taking classes that were available to him while he was incarcerated.
Turnipseed also testified that the FSP required Father to provide contact information for the providers of the classes, but that Father failed to provide that information. She testified that she tried to verify the information with the prison, but that she was not able to speak with the providers of the classes or with Father's mentor. Turnipseed also testified that although the prison verified that they provided the classes Father took, the prison could not provide any type of enrollment or participant lists.
Turnipseed testified that Theresa is doing great in her current placement with Mother's cousin. She testified that Theresa has always loved school and is doing very well, and that the caregiver has paid for tutoring services out of her own pocket to further her education. Turnipseed testified that neither Father nor his family members have provided Theresa any financial support. Turnipseed also testified that although the caregiver was initially open to having contact with Father's family, based on some interactions with his family she is no longer comfortable having contact. Turnipseed admitted she was not sure of the specifics of what occurred between the caregiver and Father's family members, but she testified that the caregiver is no longer comfortable having contact with them or with them knowing where she lives. Turnipseed stated that, to her knowledge, the caregiver did not change her mind about communication with Father based on anything Father did personally.
Turnipseed testified that DFPS was requesting termination of Father and Mother's parental rights as to Theresa so that the caregiver could adopt her. Turnipseed testified termination was in Theresa's best interest so that she could have permanency.
On cross-examination, Turnipseed testified agreed that Theresa was not brought into DFPS's care because of Father's actions, apart from his being "unable to provide care for his child[]" due to his incarceration. She also acknowledged that Father was the only parent who appeared at trial and the only parent who had attempted to "work services and provide anything to [DFPS]."
Turnipseed testified that she was able to have contact with Father and visit him throughout the case. According to Turnipseed, Father was receptive to her when she visited with him, and she did not have any concerns about Father based on their conversations.
Turnipseed agreed that although she was not able to verify that Father took any parenting classes or that the classes he took had a parenting component, she did receive the certificates of completion Father sent, and she had no reason to believe that those certificates were not authentic.
Turnipseed also agreed that Father provided a verbal statement, through his testimony at trial, articulating what he learned in the classes he took. She also agreed that Father had been in the Harris County jail for several months and that she had the opportunity to have conversations with him about what he had learned in the classes, but that she had not visited him. Turnipseed agreed that Father had completed what he could under his FSP, given his circumstances.
Turnipseed testified that the current caregiver wants to adopt Theresa, if it is an option, but that if adoption is not possible, the caregiver will continue to keep Theresa. Turnipseed agreed that Father was the only parent who has shown interest in the case; that it would be in Theresa's best interest to a have a positive relationship with a biological parent, if she could; and that if Father's rights were not terminated, the current caregiver would continue to provide and care for Theresa.
Turnipseed testified that she did not believe that Father had the current caregiver's contact information but that, if he wanted to contact Theresa, he would have to do so through CPS. Turnipseed testified that she was not sure whether she told Father he could contact Theresa through her and that it was possible that she did not.
Turnipseed testified that the current caregiver owns her own home, is gainfully employed, and is financially able to care for Theresa and her siblings. She testified that the children are bonded together and care for each other, and she did not believe that separating the children was a good idea. Turnipseed testified that, during her monthly evaluations, she asks Theresa, who was seven at the time of trial, where she would like to live. Theresa's first choice is "always to stay where she is." Turnipseed testified that when she asks Theresa what her second choice would be, and if she would like to live near her father, Theresa's response is "hesitantly, you know, yes; but she doesn't really know what that would look like . . . or what that would even mean."
Turnipseed further testified that Theresa is bonded with her caregiver, loves her, listens to her, and abides by her rules. The caregiver has the parental abilities to raise Theresa, and she is able to take her to all doctor, dentist, and other appointments. Turnipseed testified that there was no evidence of any drug usage or criminal activity in the caregiver's home.
Turnipseed testified that Father mentioned having contact with Theresa "long term," but she did not know whether Father had asked if he could send Theresa a picture or letter; if he had, Turnipseed testified she would have tried to help him.
Christa Maier, the court appointed special advocate (CASA) and guardian ad litem for Theresa, testified that her recommendation was for termination of Father's parental rights, that DFPS be named permanent managing conservator, and that Theresa stay with her current caregiver. Maier testified that Theresa wants to stay where she is and that she is thriving.
Maier testified that she has not had any contact with Father. She testified that she heard Father's desire to have Theresa placed with a member of his family, but she did not believe that would be in Theresa's best interest because she is bonded with her siblings, she is thriving where she is, and consistency is in her best interest.
Maier testified that the current caregiver would like to keep Theresa and her siblings long term, and Maier agreed that this could be accomplished by either terminating parental rights or by giving the caregiver custody. She stated that it was her understanding that the current caregiver would keep Theresa and her siblings even if parental rights were not terminated and the caregiver were appointed sole managing conservator.
Maier testified that Theresa remembers Father. She testified that Theresa is old enough to express her desires, but she has not expressed a desire to be adopted, in that specific language. Maier testified that Theresa has never specifically said that she did not want any contact with Father or that she wanted Father's parental rights to be terminated. Maier agreed that Theresa's desire to stay in her current placement could be accomplished by keeping her with her caregiver without terminating parental rights.
Maier provided similar testimony as Turnipseed that the caregiver no longer wanted to maintain contact with the paternal family after receiving an upsetting phone call from someone in Father's family. She also testified that after one court hearing, a bailiff escorted the caregiver out of the courtroom because she felt unsafe. However, Maier admitted that she had never spoken with Father and that there was no evidence that Father had done anything to make the caregiver feel unsafe.
Maier also testified that before Theresa came into DFPS's care, she was in school but "not so consistently" and had a lot of dental issues. She testified that if the family had really been around, they should have been aware of these issues, but no one stepped up to address them.
In its reformed order of termination, the trial court adjudicated Father as Theresa's biological father and found that Father had engaged in conduct or knowingly placed Theresa with persons who had engaged in conduct that endangered the physical or emotional well-being of Theresa; had constructively abandoned Theresa; had failed to comply with a court order establishing the actions necessary for him to obtain Theresa's return; and had knowingly engaged in criminal conduct that had resulted in Father's conviction and confinement and an inability to care for Theresa for not less than two years. It also found that termination of the parent-child relationship between Father and Theresa was in Theresa's best interest. The trial court terminated Father's parental rights and appointed DFPS as Theresa's sole managing conservator.
Termination of Father's Parental Rights
In five issues, Father argues that the evidence at trial was legally and factually insufficient to support the trial court's findings that he engaged in the predicate acts set forth in subsections 161.001(b)(1)(E), (N), (O), and (Q) and that termination of his parental rights was in Theresa's best interest. See TEX. FAM. CODE § 161.001(b)(1)(E), (N), (O), and (Q), (b)(2).
A. Standard of Review
A parent's "right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (internal quotations omitted). "When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it." Id. at 759. "A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one." Id. (internal quotations omitted). Thus, we strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
"[T]he rights of natural parents are not absolute," however, "protection of the child is paramount," and "[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). Recognizing that a parent may forfeit his parental rights based on his actions or omissions, the primary focus of a termination suit is protection of the child's best interests. Id.
Accordingly, "[i]n parental-rights termination cases, due process mandates a clear and convincing evidence standard of proof." In re N.G., 577 S.W.3d 230, 235 (Tex. 2019); see also TEX. FAM. CODE § 161.001(b). "Clear and convincing" 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." TEX. FAM. CODE § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). "This heightened burden of proof affects the standard of review in an evidentiary challenge on appeal." In re J.W., 645 S.W.3d 726, 741 (Tex. 2022).
"To that end, in reviewing a legal-sufficiency challenge, we must determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." Id. (internal quotations omitted). "[W]e look at all the evidence in the light most favorable to the finding, assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. (internal quotations omitted). We may not, however, "disregard undisputed facts that do not support the finding." Id. (internal quotations omitted).
In conducting a factual-sufficiency review in this context, we determine whether, considering the entire record, including evidence both supporting and contradicting the finding, a factfinder reasonably could have formed a firm belief or conviction that the finding was true. See In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). "If, in light of the entire record, 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 H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
Under these standards, the factfinder remains "the sole arbiter of the witnesses' credibility and demeanor." In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (quoting In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009)). In a bench trial, the trial court, as factfinder, weighs the evidence and resolves evidentiary conflicts. In re R.J., 579 S.W.3d 97, 117 (Tex. App.-Houston [1st Dist.] 2019, pet. denied).
B. Discussion
Section 161.001(b) of the Family Code authorizes an "involuntary termination of parental rights if a court finds by clear and convincing evidence both that a parent engaged in one or more enumerated predicate grounds for termination and that termination is in the best interest of the child." In re M.P., 639 S.W.3d 700, 701-02 (Tex. 2022); see TEX. FAM. CODE § 161.001(b)(1)(A)-(U), (b)(2). Generally, "[o]nly one predicate ground and a best interest finding are necessary for termination, so 'a court need uphold only one termination ground-in addition to upholding a challenged best interest finding-even if the trial court based the termination on more than one ground.'" In re M.P., 639 S.W.3d at 702 (quoting In re N.G., 577 S.W.3d at 232).
Here, the trial court found that Father:
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment;
(O) 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 who has been in the permanent or temporary managing conservatorship of [DFPS]. . . for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child; [and]
(Q) knowingly engaged in criminal conduct that has resulted in the parent's:
(i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition[.]TEX. FAM. CODE § 161.001(b)(1)(E), (N), (O), and (Q).
Father argues on appeal that the evidence at trial was legally and factually insufficient to support the trial court's finding on any of these predicate grounds and insufficient to support its finding that termination of his parental rights was in Theresa's best interest. Because we hold that the evidence is legally and factually sufficient to support termination under section 161.001(b)(1)(Q), we do not address the trial court's finding on any other predicate ground. See TEX. R. APP. P. 47.1.
Because there is legally sufficient evidence of at least one predicate ground for termination, but we ultimately reverse the trial court's final order of termination due to factually insufficient evidence of the best-interest finding, we do not review the sufficiency of the evidence to support the trial court's finding regarding section 161.001(b)(1)(E). See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (requiring courts of appeals to detail their analysis of section 161.001(b)(1)(D) or (E) "if the court of appeals affirms the termination"). Because we are reversing the order of termination for Father, he has no longer "had his or her parent-child relationship terminated." See TEX. FAM. CODE § 161.001(b)(1)(M). The due process concerns in In re N.G. are inapplicable. See In re A.J.A.R., No. 14-20-00084-CV, 2020 WL 4260343, at *4 n.3 (Tex. App.-Houston [14th Dist.] July 24, 2020, pet. denied) (mem. op.); In re M.A.J., 612 S.W.3d 398, 408 n.16 (Tex. App.-Houston [1st Dist.] 2020, pet. denied); In re D.T., No. 07-19-00071-CV, 2019 WL 3210601, at *5 n.6 (Tex. App.-Amarillo July 16, 2019, no pet.) (mem. op.).
1. Section 161.001(b)(1)(Q)
In his fourth issue, Father argues that the evidence was legally and factually insufficient to support termination under section 161.001(b)(1)(Q). Subsection (Q) permits termination of parental rights on clear and convincing evidence that a parent "knowingly engaged in criminal conduct that has resulted in the parent's: (i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition." TEX. FAM. CODE § 161.001(b)(1)(Q).
Subsection (Q) "fills a gap" in the bases for termination by allowing a prospective analysis of the anticipated care of a child while the parent is incarcerated and an opportunity for intervention to avoid neglect of a child during a prolonged incarceration. In re A.V., 113 S.W.3d at 360; In re J.G.S., 574 S.W.3d 101, 118 (Tex. App.-Houston [1st Dist.] 2019, pet. denied). The provision exists not to mete out additional punishment on parents for their criminal conduct, but to "ensure that the child will not be neglected" while his or her parent is away in prison. In re A.V., 113 S.W.3d at 360; In re J.G.S., 574 S.W.3d at 118. The primary focus of subsection (Q)-like section 161.001 generally-is the protection of the child's best interests. In re J.G.S., 574 S.W.3d at 118.
The requirement of clear and convincing evidence of an "inability to care for the child" is not met on the mere showing of prolonged incarceration. Id. "Otherwise, the termination of parental rights could become an additional punishment automatically imposed along with imprisonment for almost any crime." In re E.S.S., 131 S.W.3d 632, 639 (Tex. App.-Fort Worth 2004, no pet.); see Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Therefore, evidence of a two-year incarceration is only the first of a three-step analysis. In re J.G.S., 574 S.W.3d at 118.
During the first step, the party moving for termination must produce evidence of criminal conduct by the parent that results in confinement for two or more years. Id. The burden of production then shifts to the parent. Id.
In the second step, the parent must produce some evidence of how the parent will provide care for the child during the period of confinement or that the parent has arranged with another person for that person to provide care for the child during the period of confinement. Id. If the parent seeks to meet the burden of production with evidence that another person will care for the child during the period of confinement, the parent must prove the proposed caregiver's agreement to provide the care. Id.
The Texas Supreme Court has held that a parent relying on another's provision of care to avoid termination under subsection (Q) must demonstrate that the care is being provided on behalf of the parent, not out of an existing duty or inclination to care for the child. In re H.R.M., 209 S.W.3d at110. An incarcerated parent cannot meet his burden merely by producing evidence that there is an unincarcerated family member who is willing and able to care for the child; instead, the parent must present evidence that the alternative caregiver is providing care on behalf of the parent. See id.
See also In re D.L.A., No. 04-18-00182-CV, 2018 WL 4412506, at *9 (Tex. App.- San Antonio Sept. 18, 2018, pet. denied) (mem. op.) ("The care must be offered by a person who agrees 'to assume the incarcerated parent's obligation to care for the child' during the incarceration."); In re I.G., No. 13-18-00114-CV, 2018 WL 3062581, at *4 (Tex. App.-Corpus Christi-Edinburg June 21, 2018, no pet.) (mem. op.) (holding that grandparents' care as part of "working relationship" with incarcerated father met father's burden).
If the parent's burden of production is met, the third step shifts the burden to the party seeking to terminate parental rights. In re J. G. S., 574 S.W.3d at 119-20; In re S.R., No. 13-15-00114-CV, 2015 WL 3657747, at *2 (Tex. App.-Corpus Christi-Edinburg June 11, 2015, no pet.) (mem. op.). That party then has the burden of persuasion to show by clear and convincing evidence that the parent's provision or arrangement would not adequately satisfy the parent's duty to the child. In re J.G.S., 574 S.W.3d at 120.
Under the first step, DFPS had the initial burden to show that Father has been confined for more than two years since the date DFPS petitioned to terminate his parental rights. Under his judgment of conviction for engaging in organized crime, Father was ordered to be confined for eight years. His anticipated release date is September 2026. DFPS petitioned to terminate Father's parental rights in November 2022. Father still had almost four years of confinement remaining. Thus, we conclude that DFPS satisfied its initial burden of establishing a two-year period of confinement following a conviction.
Because DFPS met its initial burden, the burden then shifted to Father to produce some evidence of his ability to care for Theresa during his period of confinement or an agreement from another to provide care on his behalf. See id. at 121. Father argues he met this burden by providing for alternative care and financial support through his family. Father testified that he sent financial support every year to Theresa's godparents, who were raising her. He also testified that he tried to send financial support to Mother, including offering to pay for a birthday party for Theresa, but Mother did not accept it. He further stated that he has been taking care of his daughter since he has been "gone" and that his mother, sister, and grandmother have been "doing for [his] daughter." While Father admitted that he was not "personally" able to provide for Theresa while incarcerated, his mom, sister, and grandmother "would pick up what [he] couldn't."
But Father admitted that he had not sent any money to anyone for Theresa in 2022 or 2023 and that he did not know that Theresa was living with her current caregiver until February 2023. Further, Turnipseed testified that neither Father nor his family have provided financial support to the caregiver for Theresa. Although Father testified that his family members had been "doing for [his] daughter" since he was in prison, he did not specify how they had been taking care of her, what support they provided, or that any of the support they provided was on behalf of or for the benefit of Father. See In re H.R.M., 209 S.W.3d at 110-11; In re J.G.S., 574 S.W.3d at 121. And none of his family members testified at trial.
Father also asserts that he wanted Theresa placed with his aunt or grandmother, but that Turnipseed never asked Father for other possible placements. Turnipseed testified that Father failed to provide any contact information for these family members and that she was "aware of the paternal grandmother" but not Father's aunt. Although Turnipseed did not elaborate on whether DFPS considered the paternal grandmother as a possible placement, Father did not testify that there was an agreement with either his grandmother or aunt to provide care for Theresa on Father's behalf. Rather, he stated that, only that "[i]f it's a chance," he wanted Theresa placed with his aunt or grandmother. See In re J.G.S., 574 S.W.3d at 121 (stating that, in cases interpreting subsection (Q), courts have held that "merely identifying an alternate caretaker for a child is insufficient to meet the parent's burden;" instead, to meet his burden, parent must establish that alternate caregiver is caring for child on behalf of parent, not out of her own, personal obligations to child).
See also In re H.A., No. 01-22-00106-CV, 2022 WL 17813760, at *9-10 (Tex. App.-Houston [1st Dist.] Dec. 20, 2022, no pet.) (mem. op.) (holding father's testimony that family could provide for child "if need be" was insufficient to meet father's burden because father did not present any evidence of an agreement with another to provide care for child on father's behalf).
Based on the above, we conclude that Father has not met his burden to produce evidence of an ability to care for Theresa or an agreement of another person to care for Theresa and, therefore, we must conclude that the trial court did not err in concluding that the elements for termination of Father's parental rights under subsection (Q) have been met.
We conclude that there is legally and factually sufficient evidence to support the trial court's predicate finding under subsection (Q). Because at least one predicate has been affirmed, we turn next to the best-interest analysis.
2. Best Interest of the Child
In his fifth issue, Father contends that the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights is in Theresa's best interest.
In addition to a predicate violation, when seeking to terminate a parent's parental rights, DFPS 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 best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child."). There is a strong presumption that the child's best interest will be served by preserving the parent-child relationship. In re J.F.C., 96 S.W.3d at 294.
Because of the strong presumption that maintaining the parent-child relationship is in the child's best interest and the due process implications of terminating a parent's rights without clear and convincing evidence that termination 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." In re J.G.S., 574 S.W.3d at 121-22 (quoting In re W.C., 98 S.W.3d 753, 758 (Tex. App.-Fort Worth 2003, no pet.)). "Termination should not be used to merely reallocate children to better and more prosperous parents." Id. And in parental-termination proceedings, DFPS's burden is not simply to prove that a parent should not have custody of his children; DFPS must meet the heightened burden to prove, by clear and convincing evidence, that the parent should no longer have any relationship with his children whatsoever. In re M.A.J., 612 S.W.3d 398, 409-10 (Tex. App.-Houston [1st Dist.] 2020, pet. denied) (citations omitted).
A factfinder may consider a number of factors to determine the child's best interest, including: (1) the child's desires, (2) the child's present and future physical and emotional needs, (3) the present and future emotional and physical danger to the child, (4) the parental abilities of the people seeking custody, (5) whether programs are available to assist those people in promoting the child's best interest, (6) plans for the child by the people seeking custody or by the agency seeking custody, (7) the stability of the proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not appropriate, and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
Evidence establishing one of the predicates under section 161.001(b)(1) also may be relevant to determining the best interests of the child. In re S.C.F., 522 S.W.3d 693, 701 (Tex. App.-Houston [1st Dist.] 2017, pet. denied). The absence of evidence about some of the factors would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest. In re C.H., 89 S.W.3d at 27. Likewise, a lack of evidence on one factor cannot be used as if it were clear and convincing evidence supporting a termination finding. In re E. N.C. , 384 S.W.3d 796, 808 (Tex. 2012).
In some cases, undisputed evidence of only one factor may be sufficient to support a finding that termination is in the child's best interest; in other cases, there could be "more complex facts in which paltry evidence relevant to each consideration mentioned in Holley would not suffice" to support termination. In re C.H., 89 S.W.3d at 27. Our "best interest" analysis is not limited to these Holley factors; other factors, including the statutory factors set forth in section 263.307 of the Family Code, may be considered. See TEX. FAM. CODE § 263.307; In re A.C., 560 S.W.3d 624, 631 n.29 (Tex. 2018).
a. Child's desires
At the time of trial, Theresa was seven years old. Theresa, along with her two siblings, Thomas and Kurt, is living with Mother's cousin. Turnipseed testified that Theresa's first choice as to where she wants to live is "always to stay where she is." Turnipseed testified that when she asks Theresa what her second choice would be, and if she would like to live near her father, Theresa's response is yes, but she is not sure what that would mean.
Maier testified similarly. She stated that Theresa is old enough to express her desires, but she has not expressed a desire to be adopted, in that specific language. Rather, she has stated only that she wants to continue living with her current caregiver. Maier testified that Theresa has never said that she does not want any contact with Father or that she wants Father's parental rights to be terminated. Maier admitted that she had not discussed with Theresa what it means to have parental rights terminated.
Thus, the evidence is clear that Theresa wishes to stay with her current caregiver. But there was no evidence presented that Theresa desired the termination of her relationship with Father. See In re T.S., No. 01-22-00054-CV, 2022 WL 4474277, at *35-36 (Tex. App.-Houston [1st Dist.] Sept. 27, 2022, no pet.) (mem. op.) (noting that although children expressed desire to be adopted by grandparents, there was no evidence presented indicating implications of adoption had been explained to children or that children were told how adoption would affect their relationship with their father, and holding evidence factually insufficient to support trial court's finding that termination was in child's best interest).
See also In re M.A.A., No. 01-20-00709-CV, 2021 WL 1134308, at *35 (Tex. App.-Houston [1st Dist.] Mar. 25, 2021, no pet.) (mem. op.).
In addition, both of DFPS's witnesses testified that Theresa's desire to stay in her current placement could be accomplished without terminating Father's parental rights. Turnipseed and Maier testified that although the current caregiver wants to adopt Theresa, if adoption is not possible, the caregiver will continue to provide and care for Theresa, even if Father's parental rights are not terminated. Cf. In re F.M.E.A.F., 572 S.W.3d 716, 732 (Tex. App.-Houston [14th Dist.] 2019, pet. denied) (considering evidence that DFPS's goal for child to transition to independent living could be met even if trial court did not order termination and that relative could provide safe environment for child regardless of whether mother's parental rights were terminated).
b. Parenting abilities of people seeking custody
Theresa has been living with the current caregiver since August 2022. Turnipseed testified that the current caregiver owns her home, is gainfully employed, and is financially able to care for Theresa and her siblings. She testified that Theresa is bonded with her caregiver, loves her, listens to her, and abides by her rules. She testified that the caregiver has the parental abilities to raise Theresa, and she takes her to all doctor, dentist, and other appointments. Turnipseed testified that there was no evidence of any drug usage or criminal activity in the caregiver's home.
There was little evidence presented of Father's parental abilities. It is undisputed that Father was incarcerated when Theresa was born and was only out of prison for about four months before he was arrested again and began serving his current sentence. Although Father testified that he spent time with and got to know Theresa during the four months that he was out of prison, Theresa was living with her godparents during that time. Thus, he was not the sole parental figure in her life at that time, and there is no evidence of the level of care he provided to Theresa during that limited time frame.
Father testified that he did not want the trial court to terminate his parental rights because he wants a chance to be a father to Theresa and to have a relationship with her. Father testified that he completed three classes while incarcerated. One involved management of emotions, including anger, and another included parenting skills. Father explained that he planned to get his GED so that, upon release, he could get a job and stable home so he could be there for his daughter.
Father testified that he provided financial support to Theresa and regularly sent her letters, cards, and pictures when she was living with her godparents. He also stated that he regularly kept in touch with Theresa and her godparents, and that her godparents and his mother brought Theresa to visit him in prison. But he admitted that he was not aware that Theresa went to live with her current caregiver, Mother's cousin, until around February 2023 when he learned of this case, and he had not seen Theresa since 2021. Because it is clear from the record that Theresa was placed into foster care in April 2022, and then into her current placement with Mother's cousin in August 2022, we can presume that Father has not had contact with Theresa or her godparents since at least April 2022. Thus, this evidence does not establish a history of sustained parenting. See In re J.G.S., 574 S.W.3d at 124.
Based on the evidence introduced at trial, it is clear that Father's contact with Theresa has been limited during his incarceration. However, DFPS offered no explanation as to why continuing with the limited contact that has existed is against Theresa's best interest. There is no evidence that Father has discussed inappropriate or harmful subjects with Theresa in any letters or visits with her. Nor is there any evidence that Theresa is negatively affected by contact with Father. See id. at 124- 25 (acknowledging that incarcerated father had limited contact with child, but that DFPS introduced no evidence as to why continuing that limited contact was against child's best interest). Moreover, Turnipseed testified that it would be in Theresa's best interest to have a positive relationship with a biological parent, if she could.
We note that DFPS states in multiple places in its brief that Father has only seen Theresa "twice in her life." This is a misstatement of the evidence. Father testified that Theresa's godmother brought Theresa to visit with him, but at no point did Father testify that this occurred only once. Similarly, Father testified that the last time he saw Theresa was in 2021, when his mother brought Theresa to visit him. But again, he did not testify that this was the only time his mother brought Theresa to visit him, just that it was the last time he saw her. Furthermore, Father testified that he saw Theresa after he was released from prison in 2018.
c. Parties' plans for the child, available programs, and stability of placement
The stability of the proposed home environment is an important consideration in determining whether termination of parental rights is in a child's best interest. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). A child's need for permanence, with the establishment of a "stable, permanent home," has been recognized as the paramount consideration in a best-interest determination. Id.; In re J.D., 436 S.W.3d 105, 120 (Tex. App.-Houston [14th Dist.] 2014, no pet.) ("Stability and permanence are paramount in the upbringing of children.").
Turnipseed testified that Theresa is doing great in her current placement with Mother's cousin. She testified that Theresa has always loved school and is doing very well, and that the caregiver has paid for tutoring services out of her own pocket to further her education. She testified that the current caregiver owns her home, is gainfully employed, and is financially able to care for Theresa and her siblings. There was evidence introduced that Theresa is very bright, is doing well in school, and is involved in ballet and swimming.
Turnipseed further testified that if the caregiver adopts Theresa, there are programs to provide assistance and college money and that Theresa would receive Medicaid insurance. As to the caregiver's future plans for Theresa, Turnipseed testified that the caregiver treats Theresa as her own child, wants to take her on trips, and wants to allow Theresa to accomplish everything Theresa wishes- including extracurriculars, college, and ultimately in a career.
Both Turnipseed and Maier testified that termination of Father's parental rights was in Theresa's best interest "to establish permanency." And both testified to the caregiver's desire not to have contact with Father's family based on some previous interactions that made her feel uncomfortable and unsafe, though neither could testify to the specifics of those interactions. And the caregiver did not testify at trial. However, Turnipseed stated that, to her knowledge, the caregiver did not change her mind about communication with Father based on anything Father did personally. Maier testified similarly that she had never spoken with Father and that there was no evidence that Father had done anything to make the caregiver feel unsafe.
Father's testimony on these issues focused on his desire that Theresa be allowed to maintain a relationship with him in the future and on his concern that he would not have any contact with Theresa in the future if his parental rights were terminated. He also testified that he plans to get his GED so that when he is released, he can "get a job, [a] stable place to stay in, [and] continue to finish this process with getting [his] daughter." He also introduced a letter from his mentor who stated that they were working to "develop [Father's] work ethic and identifying what jobs would be suitable for his future." There was no testimony or other evidence regarding the existence or availability of programs to assist Father upon his release if such assistance became necessary.
d. Child's present and future physical and emotional needs and danger, and acts or omissions of the parent
There is no question that Father has a criminal history and that his repeated violations of the law and imprisonment weigh in favor of a finding that termination is in the best interest of a child. See In re F.M.E.A.F., 572 S.W.3d at 732-34.Father's conduct has caused his absence from much of Theresa's life.
See also Yonko v. Dep't of Fam. and Protective Servs., 196 S.W.3d 236, 246 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (reasoning that parent's incarceration threatened child's needs).
But incarceration alone is not a sufficient basis for termination of parental rights. Id.; see also Boyd, 727 S.W.2d at 533. "Termination of parental rights should not become an additional punishment for imprisonment for any crime." In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.-Houston [1st Dist.] 2002, pet. denied); see also In re E. N.C. , 384 S.W.3d at 805 (rejecting proposition that any offense committed by parent that could lead to imprisonment or confinement would automatically establish endangerment to children). In considering the acts and omissions of a parent leading to the parent's incarceration, we consider the expected length of imprisonment and whether it can be inferred from the criminal conduct that the parent has endangered the safety of the children. See In re C.T.E., 95 S.W.3d at 466.
In In re C.T.E., for example, this Court held that the evidence was insufficient to prove that termination was in the children's best interest because the father's criminal conduct of theft was "not the type from which it can be inferred that he has endangered the safety of his children." Id. The Court reached this conclusion despite the fact that the father had engaged in criminal conduct after signing his family service plan, and despite his prior convictions for possession of cocaine, burglary of a habitation, and assault against the children's mother. See id. at 464-47. The father was expected to be released from prison ten months after the final hearing. Id. at 466.
Similarly, in In re F.M.E.A.F., the Fourteenth Court of Appeals held that the evidence was insufficient to demonstrate that termination was in the child's best interest when the mother's criminal conduct, including convictions for theft, trespass, and resisting arrest, were not the type from which it could be inferred that she had endangered the child's physical safety. See 572 S.W.3d at 732-34. And the mother was expected to be released from jail only a few months after the final hearing. See id. at 733.
See also id. at 244-49 (factually insufficient evidence to support best interest finding although parent participated in aggravated assault and violated community supervision).
Here, Father has two convictions, one for aggravated assault with a deadly weapon (an offense that occurred when Father was 17) and one for engaging in organized criminal activity. We acknowledge that aggravated assault with a deadly weapon is unquestionably a violent crime, but there is no evidence in the record about the details of that, or any other, offense. Considering that the aggravated assault offense occurred in 2014, before Theresa was born, it is clear that the offense did not involve Theresa; and there is no evidence in the record that the assault was against Mother or another family member.
Thus, unlike most decisions upholding termination based on repeated criminal conduct, there is no evidence that Father has perpetrated violence in the home or has a substance abuse problem. See, e.g., In re F.M.E.A.F., 572 S.W.3d at 732-34 (insufficient evidence that termination was in children's best interest where mother's convictions did not endanger children's safety and there was no evidence mother had drug problem or was violent toward children); In re D.T., 34 S.W.3d at 636 (collecting cases involving sexual and physical abuse and drugs; "In the cases we have found involving termination of parental rights of imprisoned parents, endangerment to a child could easily have been inferred from the underlying conduct of the parent."). Although Father has a longer remaining sentence than the parents in the cases mentioned above, he has made strides while in prison to better himself for Theresa. He testified to plans to get his GED so that he can get a job upon release, and he has been working with a mentor to "develop his work ethic and identifying what jobs would be suitable for his future."
As additional evidence of the emotional or physical danger to Theresa, DFPS points to a 2014 CPS referral discussed in the removal affidavit containing an allegation of domestic violence between Father and Mother. The referral alleged that Father choked mother in front of one of Mother's children. That case was closed, however, as "unable to determine." Moreover, Father's FSP notes that "[t]here is no known history for DV [domestic violence]."
As evidence of physical or emotional danger, DFPS points to evidence that Theresa "had a rough start." DFPS notes that various caregivers have cared for Theresa at various times, she had no permanence, and her medical care was lacking. DFPS states that Mother, who has had consistent substance abuse problems, left Theresa at home for extended periods, without supervision and sometimes without food. Additionally, DFPS notes, Mother refused to return Theresa after a March 2022 visit, and the police were needed to retrieve her. DFPS argues that "neither Father nor his family were close enough to [Theresa] to protect [her] from these circumstances."
DFPS claims that Mother tested positive for "benzos at Theresa's birth," but this statement, again, misstates the record. The removal affidavit states that in July 2017, over a year after Theresa was born, DFPS received a referral alleging that Mother "tested positive for benzodiazepine" during the birth of a different child, A.T., who is not a subject of this case.
Notably, all this evidence points to actions taken by Mother, not Father. It is undisputed that Father has been incarcerated for much of Theresa's life, and DFPS presented no evidence that Father knew of Mother's drug addiction, Mother's actions in refusing to return Theresa, or that Theresa was neglected in her care.
Our focus must be on whether termination of Father's parental rights would advance Theresa's best interest. See TEX. FAM. CODE § 161.002(b)(2); In re J.G.S., 574 S.W.3d at 127. All evidence indicates that Theresa will retain a familial relationship with her current caregiver regardless of whether Father's parental rights are terminated. DFPS's only two witnesses testified that the caregiver is willing and able to continue caring for Theresa, even if Father's rights were not terminated. And Maier specifically admitted that Theresa's desire to stay with her current caregiver could be accomplished by giving the caregiver custody or terminating Father's parental rights.
Father admitted that he cannot provide a safe and stable home while incarcerated, but he testified that he has done what he can to try and better himself for Theresa while in prison. He testified that he wants to maintain a relationship with Theresa and have the chance to be a father to her. Turnipseed testified that Father was receptive to DFPS's requests, he was the only parent who showed interest in his child in this case, and he substantially completed what he could under his FSP considering his circumstances. In our view, on this record, the disputed evidence cannot support a rational factfinder's firm conviction or belief that the loss of Father's parental relationship adds to Theresa's best interest.
There is a strong presumption that a child's best interests are served by maintaining the parent-child relationship. Jordan v. Dossey, 325 S.W.3d 700,730 (Tex. App.-Houston [1st Dist.] 2010, pet. denied); In re L.M., 104 S.W.3d 642, 647 (Tex. App.-Houston [1st Dist.] 2003, no pet.). Parental rights are of constitutional magnitude, but they are not absolute. See In re C.H., 89 S.W.3d at 26. "Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right." Jordan, 325 S.W.3d at 729 (citing In re C.H., 89 S.W.3d at 26).
As noted above, DFPS's burden is not simply to prove that a parent should not have custody of his child; DFPS must meet the heightened burden to prove, by clear and convincing evidence, that the parent should no longer have any relationship with his child whatsoever. See In re M.A.J., 612 S.W.3d at 409-10. DFPS has not presented evidence that Theresa's emotional and physical interests would be sacrificed if Father were permitted to retain his parental rights, limited as they are considering that he is incarcerated. This case does not involve a challenge to DFPS's appointment as sole managing conservator. Thus, based on DFPS's evidence that the caregiver will continue to care for Theresa even if Father's parental rights are not terminated, Theresa will undoubtedly continue to live with the caregiver. Father merely seeks to retain the legally recognized, familial relationship he has had with Theresa and prevent himself from being excluded from Theresa's life permanently. DFPS has made no showing why Theresa's life without Father is better than life with him, even in a limited role with infrequent contact. See In re J.G.S., 574 S.W.3d at 128 (holding evidence was factually insufficient to support finding that termination was in child's best interest because there was no evidence that child's interests would be sacrificed by allowing father, who was incarcerated, to retain limited rights as possessory conservator with supervised visits).
We have given due consideration to the evidence that the trial court could have credited in support of its finding that termination of Father's parental rights was in Theresa's best interest. We recognize that the trial court reasonably could have determined that the caregiver has provided a safe and stable home for Theresa and that there is minimal evidence in the record of past, sustained periods of parenting by Father. Thus, we hold that there is legally sufficient evidence that termination of Father's parental rights is in Theresa's best interest. See id.
Nonetheless, weighing all the evidence and considering the Holley factors, giving due consideration to the disputed and undisputed evidence presented at the termination hearing, and giving deference to the trial court's role as factfinder and judge of witness credibility, we conclude that the evidence that a reasonable factfinder could not have credited in favor of the best-interest finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction that termination of Father's parental rights is in Theresa's best interest. See In re A.C., 560 S.W.3d at 630; In re J.G.S., 574 S.W.3d at 128.
See also In re C.T.E., 95 S.W.3d 462, 469 (Tex. App.-Houston [1st Dist.] 2002, pet. denied) (concluding evidence was factually insufficient to support best-interest finding); In re F.M.E.A.F., 572 S.W.3d at 732-34 (same).
As a result, we hold that there is factually insufficient evidence to support the trial court's finding that termination of Father's parental rights is in Theresa's best interest. We sustain Father's fifth issue.
Conclusion
Based on our review of the entire record and the applicable standard of review for this parental-rights termination case, we conclude there is (1) legally and factually sufficient evidence of the subsection (Q) predicate finding; (2) legally sufficient evidence that termination of Father's parental rights is in Theresa's best interest; but (3) factually insufficient evidence that termination is in Theresa's best interest.
We therefore reverse the portion of the trial court's reformed decree of termination terminating Father's parental rights and remand that portion of the decree to the trial court for a new trial. We affirm the portion of the trial court's reformed decree appointing DFPS as Theresa's sole managing conservator. See In re J.A.J., 243 S.W.3d 611, 612-13 (Tex. 2007).
Father did not challenge the portion of the trial court's reformed decree appointing DFPS as Theresa's sole managing conservator.