Appellant Mother and Appellant Father appeal the termination of their parental rights to G.C. We reverse the trial court's judgment, render judgment for Mother as to her parental rights, and remand the case to the trial court for a new trial as to Father's parental rights.

II. Factual and Procedural Background

A. Events before November 2015

Mother's and Father's history with the Department of Family and Protective Services (DFPS) began several years earlier, but DFPS initiated the first case involving their daughter G.C. after Father assaulted Mother on September 4, 2014. Although Mother and Father had lived together as a couple both before and after G.C. was born, in September 2014 they were no longer living together as a couple, but only as roommates.

In that case, which began in 2010, DFPS made "reason to believe" findings of medical neglect against Mother and Father and "refusal of parental responsibility" by Mother as to another child. Mother eventually relinquished her parental rights to that child, who lived with Mother's father and stepmother out of state. The record contains no other evidence about the child or that case.
At some point, Father had also given up his rights to his son from a different mother because he was not able to take care of him. A relative subsequently adopted that child. No other evidence was offered about that child.

When G.C. was born, Mother was married to someone else. The trial court later ordered Father to take a paternity test to determine if he was G.C.'s father.

At the time of the assault, Mother took G.C. with her to a women's shelter, where she reported the incident to Jared Green, a Hood County Sheriff's deputy. Mother told the deputy that Father had followed her into G.C.'s room while they argued and pushed her while she was holding G.C., who was not yet a year old. According to Mother, Father hit her on the arm, leaving a bruise, slapped her across the face, and hit her with a closed fist, breaking her glasses when she fell against G.C.'s crib. Mother also told the deputy that Father had threatened to leave the state with G.C. if she called the police. At the time, she told Deputy Green that she wanted to press charges against Father to protect her daughter and herself.

Mother gave both an oral statement and a handwritten statement to Deputy Green, who later testified at the termination trial. Over Mother's objection, the trial court admitted a copy of Mother's handwritten statement. Deputy Green read Mother's statement into the record as well. He also testified that he believed that family violence had occurred, that Father's conduct had endangered G.C.'s health and safety, that Mother had been upset and scared of Father, and that Mother had attempted to protect G.C.

Although at the time of the incident, Deputy Green gave Mother a document entitled, "NOTICE TO ADULT VICTIMS OF FAMILY VIOLENCE," which contained information about how to apply for a protective order, Mother did not apply for one. Instead, Mother and G.C. went home. Mother testified that she had continued to live with Father after the September 2014 incident because, financially, she had nowhere else to go, and they were both trying to support the baby. Deputy Green testified that in his eight years of experience in Hood County, it was common for a victim of family violence to return to her abuser.

Deputy Green contacted DFPS and, after investigating this incident, DFPS found "reason to believe" for neglectful supervision as to Mother and domestic violence as to Father. On September 12, Mother and Father entered into a safety plan whereby G.C. was placed with Father's aunt and uncle for a couple of months while Mother participated in services.

The record contains no further evidence about the 2014 DFPS case.

Approximately eight or nine months after the September 2014 assault, Father's paramour Katie moved into the home that he and Mother shared. Mother testified that her only relationship with Katie was as a roommate living in the same house. According to Mother, she was unaware of Katie's mental health issues, and she did not know that Katie smoked marijuana when she agreed that Katie could move in, nor did she ask Katie about her background before agreeing that Katie could move in.

We use pseudonyms to protect G.C.'s privacy.

According to what Katie told a DFPS investigator during a later investigation, a doctor had told Katie that she was bipolar and suffered from post-traumatic stress disorder (PTSD), depression, obsessive-compulsive disorder, battered woman's syndrome, and attention deficit hyperactivity disorder.

Mother testified that after the September 2014 incident and Katie's moving in, no further incidents of domestic violence occurred between her and Father. Mother also testified that she was unaware of any physical violence between Father and Katie after Katie moved in. Katie did not testify at the termination trial.

Mother denied being present in September 2015 when, according to Katie, Father pulled a gun on her.

B. DFPS's November 2015 Investigation

At the time of DFPS's November 2015 investigation, Father, Mother, and Katie were living in a one-bedroom apartment and taking care of G.C. Father and Katie shared the bedroom, and Mother and G.C. shared the living room, which they had converted into a second bedroom.

Father was working two jobs—one at Taco Casa and the other at Long John Silver's—and Mother worked six to eight hours a day at Taco Bell. Mother said that at some point she became aware that Katie was using marijuana but that Katie continued to live with them after she discovered this.

The DFPS investigation was triggered when it received information that G.C. had been left alone with Katie, who had been using drugs. However, at the time DFPS received this information, G.C. was not living with Mother and Father. A week earlier, Mother and Father had placed G.C. with a family friend because they were concerned about G.C.'s safety due to a different circumstance unrelated to Katie.

The record contains only meager information related to this other circumstance, which involved a complaint made by Father to DFPS relating to his other daughter. The ensuing DFPS investigation was considered a "sensitive" one that, according to Mother, caused "the news media and everybody" to try to stop them in the parking lot and to get into their apartment. Although Mother was not involved in any way in that case and testified that she had not seen any threats to harm G.C., she nevertheless agreed with Father that it was best for G.C. to live away from home during that time. G.C. stayed with the family friend for several months—until the end of January or beginning of February 2016.

DFPS's investigator Lorri Streiff made contact with the family on November 13, 2015. After Father reported to Streiff that he had suspected that Katie had been using drugs, all three adults agreed to take a drug test. Father and Mother tested negative, but Katie "failed for marijuana." Mother told Streiff that although she was aware that Katie had used marijuana in the past, she had not known about any recent use by Katie.

Streiff testified that she did not have a report on March 1, 2015 about domestic violence.

Because G.C. had already been placed outside the home, DFPS determined that a child safety placement was unnecessary. At the termination trial, Streiff testified that she believed that Father had taken safe and reasonable steps to protect G.C.'s well-being when he placed G.C. with someone outside of the home after receiving threats in the "sensitive" case.

Mother acknowledged that, including the time G.C. had been placed with Father's aunt and uncle after the September 2014 incident, two-year-old G.C. had been out of her home for a total of approximately six months since her birth.

DFPS asked Mother, Father, and Katie to participate in family-based safety services and cautioned that Katie should no longer babysit or be left unsupervised with G.C. DFPS ruled "reason to believe" for neglectful supervision as to Katie and Father. Nevertheless, during the course of its investigation, DFPS allowed G.C. to return home even though it was aware that Father and Katie still lived there.

Streiff testified that during the course of her investigation, she had learned that Katie was trying to get a protective order against Father, but no other evidence was offered related to this allegation. Mother did agree that although she was unsure of the number of times the police had been summoned to their apartment, this had occurred more than once. According to Mother, on these occasions, the police responded because someone had called the police complaining of Katie. She also admitted that G.C. was usually there when it occurred. Mother acknowledged that although she knew that Katie had threatened to hurt people, Katie had continued to live with them until March 2016. However, Mother stated that no domestic violence had occurred between Father and Katie from the time that Katie moved in until she moved out in March 2016.

Katie moved out following an alleged family violence incident between Katie and Father.

On January 21, 2016, Father told Streiff that he had kicked Katie out after he caught her using marijuana and making a drug deal at her uncle's home because he "was not going to allow anyone like that around his daughter, [G.C.]" Streiff acknowledged that removing Katie from the house protected G.C.'s well-being.

The next day, Streiff learned that Father had slit his wrists and had been taken to a mental hospital in Abilene. Mother testified that Father had done so in response to the "incident with his other daughter," apparently a reference to the "sensitive" DFPS case. No other evidence was offered to shed light on Father's motivations.

The record does establish that G.C. had been with Father at his friend's house when he took this action, but no one testified as to whether G.C. had witnessed the event or the aftermath. Mother, who had been at work at the time, left work to pick up G.C. after she learned what had occurred. Mother testified that up until that point, she had been unaware that Father had any mental problems or depression, and she said that he had not been on any medication. In subsequent testimony, however, Mother said that she knew of Father's mental health conditions and diagnoses in November 2015 and testified that he took medication for PTSD. Streiff testified that a parent's attempted suicide could emotionally damage a child.

C. The February 2016 Safety Plan

Pamela Gonzales, the family-based safety services worker, became involved with the family in February 2016 when Streiff transferred the case to her. On February 18, 2016, Gonzales created a child-safety evaluation and plan, which Mother, Father, and Katie signed. Under the plan, Father and Mother were to "supervise [Katie] at all times with the child" and contact their case worker with any changes. DFPS would monitor the supervising of Katie through announced and unannounced visits. At that time, Father did not have to be supervised with G.C.

Gonzales said that DFPS also asked the family to complete assessments at Mental Health Mental Retardation (MHMR), follow MHMR's recommendations, undergo drug assessments, and participate in counseling, parenting classes, and anger management classes, and she said that the family had started those services at that time. DFPS additionally asked that Katie "get back on her medications" for her mental health problems and, "since [Katie] was going to be a part of [Father's] life, therefore being a part of [G.C.'s] life," DFPS asked Katie to participate in the family-based safety services as well. According to Gonzales, at that point in time everyone understood the concerns that DFPS had about Katie.

Although Father's later DFPS service plan did not include anger management, Gonzales said that Father "somewhat completed" anger management "through Harold," a man she identified as a counselor at "the Christian place." Gonzales complained that Harold had never given her the curriculum to know what the "anger management program was based off of" or whether it was an appropriate curriculum. After repeated requests, Gonzales obtained curriculum materials and Harold's counseling notes in June 2016, "a little bit before [DFPS] put the [June 2016] safety plan in place."

D. The March 2016 Assault

Less than a month later, on March 1, 2016, Katie called the police to report that Father had assaulted Mother at the EZ Mart. The incident began when Mother, Father, Katie, and G.C. were on their way to dinner. Mother was driving, and Father and Katie started arguing. When Father tried to get out of the car while it was still moving, Mother pulled into the EZ Mart parking lot. But before Mother could stop the car, Father removed G.C.—who was almost three years old—from her car seat, jumped out of the car with her, and began walking away. Mother went after him.

When Mother tried to take G.C. from Father, he struck Mother in the face. G.C. was in his arms at the time. Father told Granbury Police Officer Keisha Watson, who was dispatched to investigate, that Mother had tried to attack him when she came to take G.C. from him and that Mother had struck him on the back.

Officer Watson said that she was familiar with Mother, Father, and Katie, knew which apartment complex they had lived in, and assumed that all three still lived there. She did not witness the incident and did not see any visible marks, redness, or bruising on Father but noted that Mother had redness and visible swelling to her left cheek. Officer Watson testified that based on her experience and the parties' versions of the events, she believed that Father was a danger to Mother and G.C. She arrested Father for assault-family violence, offered Mother "the family violence pamphlet," contacted DFPS, and—without consulting Mother—sought an emergency protective order against Father to protect Mother and G.C.

Officer Watson took three photographs of Mother's injuries, and these photographs were admitted into evidence. Each photo shows Mother's face with a slight redness and swelling on her left cheek.

Mother testified that she did not want the protective order.

Gonzales learned about the incident the next day. Because the protective order was in place for approximately 60 days, preventing Father from being around G.C., no new safety plan was entered into at that time. DFPS arranged for daycare for G.C. because Father and Katie had previously watched G.C. while Mother was at work. Two days after the protective order was issued, Mother tried to get it lifted, which Gonzales said created some concerns for DFPS about Mother's protective capacity.

Mother said that she wanted Father to come back home as soon as he could because Katie, who was still living in the home, had threatened to kill her when she tried to get Katie to leave. According to Mother, Katie had a history of making threats of harm not only to Mother but also to Father, and she was afraid of Katie. Mother eventually called the police for assistance in getting Katie removed.

Between March and May 2016, when the protective order ended, Mother asked DFPS several times about when Father would be allowed to come back home. Mother said that she asked because she was seeking clarification as to whether he would be allowed to return to the home or not. Mother said that she had no reason to believe that DFPS wanted her to stay away from Father, nor did she recall anyone from DFPS telling her that she needed to completely avoid him.

Gonzales acknowledged that there had been no concrete evidence of any wrongdoing by Mother during this time. She further acknowledged that DFPS's conclusion that Mother's asking if Father could come home evidenced that Mother was not being protective of G.C. was merely an assumption and that Mother's question could also have been Mother's way of asking about the legal status of their case. Gonzales testified that the safety plan itself had no legal effect and that DFPS at no point sought a court order to remove Katie or Father from the home, even though Katie was a problem and DFPS had reason to believe that she had committed domestic violence and had used drugs, and even though DFPS had reason to believe that Father had committed domestic violence.

After the protective order was lifted, DFPS allowed Father to have DFPS-supervised visitation with G.C. and eventually, after he completed his anger management classes, Father was permitted to visit G.C. while supervised by Mother. Between May 4—when the protective order ended—and June 13, 2016—when a new safety plan was put into place—DFPS had no safety plan in effect but rather had issued a verbal instruction to the parents that Father could not be in the home. Father complied with this verbal instruction.

Gonzales testified that after the protective order lapsed, Mother and Father "asked several times consistently if he could come home."

E. The June 2016 Safety Plan

Under the June 13, 2016 safety plan, Father was allowed to return home as long as he was supervised with G.C. at all times and with the caution that if he became violent, Mother was to immediately remove G.C. and herself from the home and to contact her caseworker if any new incident occurred or if anything happened to G.C. Although nothing in the written safety plan, which was admitted into evidence, addressed Katie, Gonzales testified that DFPS had specified to Mother and Father that Katie was not allowed to be around G.C. at all. Gonzales said that the safety plan was an opportunity for Mother and Father to show their protective capacity for G.C.

Gonzales said that she did not address Katie in the safety plan because Mother and Father had told her that they had stopped speaking to Katie after Katie had made several threats about harming Mother and G.C. Gonzales said that Father subsequently confirmed that Katie had threatened to harm Mother and G.C. in the past. But three days after the June 13, 2016 safety plan was put into place, DFPS received reports that Mother and Father had been allowing Katie back into the home.

On June 20, 2016, Gonzales requested that law enforcement perform a welfare check of the home, whereupon "it was discovered that [Katie] was actually in the apartment." On June 28, when DFPS found out that Mother, Father, and Katie were "purchasing [a] house or renting a house all together," DFPS immediately removed G.C. from her parents.

Gonzales testified that Katie told her that she had been hiding in the closet when the safety plan was put into effect. Mother denied knowing that Katie had hidden in the closet, saying, "I work during the day, so . . . if she was there, I didn't know. I'm sorry." Mother did not know if Father knew Katie had been there. Mother said that she did not know if Katie had a key to the apartment.

F. G.C.'s Removal

Following G.C.'s removal, DFPS filed its original petition seeking to terminate Mother's and Father's parental rights based on, among other grounds, endangerment and failure to comply with the provisions of a court order specifically establishing the actions necessary to obtain the child's return.

Gonzales testified that shortly after she went over the removal documents with Mother and Father, "apparently [Father] stated he was going to commit suicide out in the parking lot." According to Gonzales, at the adversary hearing that followed, Father told her that he wanted to relinquish his rights to G.C. Gonzales said that a family member later told her that Father only offered to relinquish "to get [DFPS] off his back," and Mother testified that Father had not made any more suicidal threats since DFPS filed its original petition.

On June 29, 2016, the case was transferred from Gonzales to DFPS conservatorship worker Corryn Sojourner.

G. Post-Removal Procedures and Service Plans

Sojourner created a service plan for each parent, copies of which were admitted into evidence. Trial counsel was appointed for Mother and Father on July 12, 2016, and they were ordered to have supervised visitation with G.C., pay child support, submit to a psychological or psychiatric evaluation, attend counseling and parenting classes, submit to drug and alcohol testing, obtain and maintain appropriate housing and employment, remain in contact with DFPS, and comply with their DFPS service plans. The service plans not only tracked the requirements of the order but also recited a number of goals that Mother and Father were expected to achieve, spelling out the skills they were expected to acquire by completing their service plans. For example, according to Sojourner, meeting the bare requirements to attend classes was insufficient; DFPS wanted to see the parents demonstrate what they had learned and the skills they had obtained in completing the classes. Mother and Father signed the order and their service plans, and Sojourner testified that when she went over the service plans with them, she believed that each parent understood what was being asked of them.

The trial court also ordered Father to undergo genetic testing to determine whether G.C. was his biological child. The DNA test resulted in a probability of paternity of 99.999998%.

On October 23, 2016, Father was arrested in response to an alleged domestic violence incident involving Katie. At trial, when Mother was initially asked whether she knew about an October 2016 assault charge filed against Father, she said she did not know about it. She later clarified, however, that she knew that Father had been arrested in October 2016, but did not know the specific charge. According to Mother, Father later told her that he had been "set up for something," but declined to provide details and did not tell her that it was related to a domestic violence incident with Katie. Mother told her caseworker that she would not have bailed him out of jail if she thought he had done it. Mother continued to share an apartment with Father after his October 2016 arrest.

Mother bailed Father out of jail on the day after he was arrested, yet she maintained that she did not learn why he was arrested until sometime later.

Sojourner testified that Mother was present when she talked to Father after his arrest and that Mother knew why he had been arrested.

At some point, Mother obtained an emergency protective order against Katie which enabled her to have Katie removed from their apartment's lease and evicted, and, according to Mother, Katie had not returned after that. Mother denied that she had ever allowed Katie to be around G.C. when DFPS had asked her not to. After the October 2016 arrest, Father ended his relationship with Katie, and by December 2016, he and Mother were in a relationship again. But by that time, DFPS's goal had changed from family reunification to termination of parental rights.

Mother testified that prior to obtaining her emergency protective order against Katie, her apartment management had told her that she would need to obtain a formal eviction notice "or something to that effect" to be able to remove Katie from the lease. We infer from this testimony, and Mother's testimony that she had no legal education, that Mother did not know how to obtain Katie's removal prior to the emergency protective order.

Father offered to relinquish his rights to G.C. at some point after a court hearing, according to Sojourner, but Sojourner told him to talk with his lawyer; she did not tell Father's lawyer or the attorney ad litem about Father's offer, despite her acknowledgment that it would have been pertinent, particularly to the child's ad litem, to know that one of the parents wanted to relinquish.

Mother and Father completed their service plans, including psychological evaluations. Those evaluations were not offered into evidence.

Sojourner was not present during visits by Jean Cate, G.C.'s court-appointed special advocate (CASA), and Cate did not testify at the trial. The record before us does not reflect that Cate submitted a CASA report to the trial judge.

H. Termination Trial

The trial on the termination of Mother's and Father's parental rights began on June 28, 2017, but after all parties had announced ready and the assembled witnesses had been administered the oath, the trial court continued the trial until "a later date."

Approximately one month later, not long after G.C. turned four years old, the trial resumed. All of the parties again announced ready, and the trial court took judicial notice of the contents of its file and all prior proceedings. Father did not appear at trial. Mother testified that she was not sure where Father was, but Sojourner stated that she had seen him in the courthouse parking lot in his car.

Although DFPS's brief states that this was a jury trial, the record does not reflect that the case was tried to a jury.

While the file contains DFPS's affidavit setting forth the facts supporting removal and DFPS's permanency reports to the court containing factual background about the parties, these are not facts that can be judicially noticed. See Tex. R. Evid. 201(b)(1)-(2) (stating that the court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the trial court's territorial jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned); In re T.G., No. 11-17-00026-CV, 2017 WL 3554623, at *2 (Tex. App.—Eastland Aug. 8, 2017, no pet.) (mem. op.) ("A trial court may take judicial notice of the contents of its file, but a trial court may not take judicial notice of the truth of any factual allegations contained in its file."); In re J.E.H., 384 S.W.3d 864, 870 (Tex. App.—San Antonio 2012, no pet.) ("[T]he trial court could not take judicial notice of the allegations the caseworker made in the family service plan."). We do not have a record of the prior proceedings in this case or any of the other cases referenced by the parties or other witnesses.

DFPS's first two witnesses were the law enforcement officers who investigated, respectively, the September 2014 and March 2016 assaults. Streiff, the DFPS investigator, identified Mother at trial, noted Father's absence, and testified about the November 2015 investigation as set out above. Gonzales, the family-based safety services worker, testified about her interaction with the family as set out above, from February 2016 to June 2016, when the case was transferred to Sojourner, the DFPS conservatorship worker, who also testified as set out above and below. Mother testified, and she called one witness, Yvette, an out-of-town friend who testified that she had known Mother for over nine months—since approximately November 2016—after meeting her through mutual friends. Yvette had met Father a month earlier and had known Katie since August 2016.

When Yvette was visiting the area in October, Katie had stolen a friend's social security card, and Yvette tried to get it back; that was when she met Father.

1. Endangerment

Both law enforcement officers testified that Father's conduct had endangered G.C.'s health and safety.

Sojourner testified that Father's actions had endangered G.C.'s physical or emotional well-being through "[t]he continued violence that has happened, and the fact that he will let someone that he knows that has mental health problems and is also violent be around the child." Sojourner acknowledged that Father had told her that since the October 2016 arrest, he was no longer in a relationship with Katie, and that he and Mother had been in a relationship since December 2016.

Mother denied that any incidents of domestic violence between Father and her had occurred since September 2014 except for the March 16, 2016 incident. Mother said that when Father was on his medication for PTSD, he was calmer, more coherent, and more controlled, and his anger issues were manageable. Mother claimed that Father regularly took his medication, and although she knew of two occasions when he had been off of his medication, those had occurred while he was waiting for refills. She testified that she did not know if Father had been off of his medication at the time of the September 2014 or March 2016 assaults.

When asked by DFPS's attorney whether Father's having punched her in the arm and in the face was violent, Mother replied, "[T]hat can be your opinion." When asked whether she thought Father was capable of protecting G.C. "from his impulse control and other people who have mental health problems that are in his life," Mother replied, "[T]o be completely honest, I would have to say, 'No.'"

Sojourner testified that she did not believe that Mother understood that those two acts were violent.

Mother agreed that given Katie's mental health problems and drug use, Katie's living in the same home as G.C. had endangered G.C.'s health and safety, but Mother also testified that no one had told her during the case that her own behavior was a problem. Sojourner testified that Mother's actions, by continuing to allow Father to be around the child even after he had physically assaulted her with the child present, and by allowing Katie to be around the child prior to the child's removal, had endangered G.C. While Sojourner opined that placing G.C. back with Mother and Father would continue to endanger the child's emotional or physical well-being, she admitted that she had never revealed to Mother that DFPS would not recommend returning the child to her as long as she and Father were together.

2. Court Order

Both parents completed their service plans.

Father's DFPS service plan did not include anger management because by the time the case started, Father was taking his medication. After Father's October 2016 family violence arrest, Sojourner told him that they would reevaluate the service plan if his anger showed up again. Sojourner never asked Father to move out of the home he shared with Mother.

Sojourner agreed that Father had completed all of his services but, based on his October 2016 arrest for domestic violence against Katie, she maintained that he had failed to refrain from criminal activity. Yet, Sojourner acknowledged that she did not know if the October 2016 allegations had been adjudicated, and she confirmed that Father was not in jail. She also admitted that she did not witness the alleged altercation between Father and Katie and acknowledged that it was possible that Katie's allegations against him were not true.

Except for Mother's having let Father and Katie be around G.C. when they were not supposed to be, Sojourner testified that from the beginning, Mother's behavior with DFPS had been cooperative. Sojourner acknowledged that Mother had completed all of the services but criticized Mother for not demonstrating what she had learned from the classes. Sojourner explained that she did not believe "that [Mother] understands the severity of why this case was open and the cases before," and that she knew that Mother "could have obtained skills through the parenting classes and counseling to better parent and have the ability to parent the child during visitations," but that DFPS had failed to see her demonstrate those skills.

Sojourner subsequently added that Mother had not attended all of her appointments and family team meetings that were part of her service plan, but she did not elaborate on how these items related to any of the specific court-ordered tasks.

When asked whether requiring Mother and Father to show what they had learned in the services was an objective or subjective standard, Sojourner replied that she did not know because she did not understand what the term "subjective" meant. Without further explanation or specificity, she explained that DFPS workers looked for what they were "trained to look for" during their job training. And she confirmed that Mother's and Father's failure to demonstrate what they had learned was merely her opinion. She also agreed that her opinion, even based on her "training," was not a very specific standard against which to determine whether someone has "demonstrate[d] compliance."

a. DFPS's Unstated Expectations for Safe and Appropriate Housing

Although she did not reveal this to Mother, Sojourner testified that DFPS did not believe the family would have safe and appropriate housing as long as Father lived there, given "his background." Sojourner visited Mother's home in April 2017 and at the end of May 2017 to see if the home was appropriate, and she acknowledged that the home was appropriate on those occasions. Mother testified that she had a bed and furniture for G.C. and that she had saved money to get an apartment that Father would not live in.

With regard to the link between Mother and Father's living together and the service plan's "appropriate housing" requirement, Sojourner admitted during cross-examination that she kept Mother in the dark regarding DFPS's expectations:

Q. . . . [Y]ou've testified the problem in the home is the domestic violence and [Father] being there. So you can't have it both ways. [DFPS] either expected him to get out or they didn't.

A. [DFPS] is not going to tell [Mother] to kick out the father of her child, especially if they were working services together. In the service plan, under the home environment, it says to have a safe and appropriate home.

Q. Did you discuss that sentence with [Mother]?

A. Yes.

. . . .

Q. . . . How much time did you spend explaining specifically that sentence so that [Mother] knew what [DFPS] expected?

A. I read it to her.

Q. So if she defined that phrase one way and you're thinking at the same time means something else, there was no meeting of the minds, you just assumed that she knew and intuited what you meant?

A. Yes.

. . . .

Q. . . . You stated that the mother failed to, you know, demonstrate protectiveness.

A. Yes.

Q. And that she failed to demonstrate her willingness and ability to protect the child because she didn't get the father out of the house.

A. [DFPS]'s not going to tell her to tell him to leave.

Q. Ma'am, I didn't ask what [DFPS] is going to tell her. I asked, is that how -- is that the failure of demonstration that you're talking about?

A. Yes.

Q. Okay. And that's a failure of demonstration of an action which you have repeatedly in this courtroom and in numerous hearings before this stated [DFPS] will not and does not ask for.

A. Yes.

Q. Okay. So you're expecting this person to know that [DFPS] wants something done just by, as you stated earlier, reading the service plan, that they're supposed to intuit that, even though you say [DFPS] will never ask them to do it.

A. The service plan states that the home environment needs to be safe and appropriate.

Q. And do you explain to the parents what "safe and appropriate" means?

A. Yes.

Q. Do you explain to the parents that "safe and appropriate" means keeping or removing dangerous elements from the home?

. . . .

A. Yes.

Q. Do you explain to the mother in this case that [Father] is a dangerous element?

A. No.

Q. So, then, based on what is she supposed to know that she is being judged based on whether or not he's still in the home?

When Sojourner began to answer with reference to domestic violence, Mother's attorney objected that her answer was non-responsive, and the trial court sustained the objection. The cross-examination continued:

Q. . . . I'm not asking about whether or not she's supposed to think he's a good or a bad guy. This is about why should she have any idea that she is going to be judged on whether or not she lets this person into the home when [DFPS] won't say a word to her about it.

A. Because in the service plan it says to have a safe and appropriate home. [Father] has more than once assaulted [Mother], so --

Q. So she's just supposed to know what you mean.

A. Well, [DFPS]'s not going to tell her that --

Q. [DFPS]'s not going to explain what it means in the service plan?

A. [DFPS]'s not going to tell her that she needs to remove [Father] if they are going to work services together.

. . . .

Q. . . . Would you please tell me, could he have been removed? I'm not asking whether or not you would do it, whether or not you would ordinarily do it or whether or not you would like to do it, I'm asking can you do it? Is it something that could have been done?

(Pause)

A. Yes.

. . . .

Q. . . . Would removing [Father] from the home have protected the child?

A. Yes.

Q. And based on your testimony and the testimony of other [DFPS] employees that you have witnessed and your review of the case records in this matter, did [DFPS] ever file any pleadings with this or any other court, seeing to remove [Father] from the home?

A. No.

Q. At any point, did you seek to modify the service plan for [Father]?

A. No.

Q. So even after the alleged incident in October, you still did not feel the need to go before the court and ask that the service plan be modified?

A. No.

b. DFPS's Vague Expectations for Demonstrating Parenting Skills

Sojourner testified that Mother had not shown what she had learned in her parenting classes. She elaborated, stating,

I talked to the counselor that she was seeing with [Father], and the counselor had -- had told me that he had given them very -- very in-depth instructions on how to parent a child and things that should be being done during the visitation to show that they're able to parent, and I did not see that during visits. And when I talked to the counselor again and told him the things that were happening during visitations, he seemed very upset, because that is not some of the things that they talked about in counseling, and he thought that [Mother] and [Father] were very receptive to what he was saying, but they were just not demonstrating what was being asked of them.

Sojourner did not testify about how many visits she observed, and she was not present during visits by the child's court-appointed special advocate.

Sojourner testified that when she told the counselor that Mother was not engaging with G.C. during visits, he "was going to discharge them and decided not to, and had them come in again to have another session so that they could talk about how she needed to engage, and after that session that he had, the next visit, she was still not really engaging much with [G.C.]." Sojourner said that when she tried to explain what DFPS wanted to see, Mother "was more argumentative about that she was engaging and what she was doing." Other than a vague reference about the need to "engage" more with G.C., Sojourner did not elaborate on what "things" apparently troubled the counselor, nor did the counselor, as he did not testify at trial and his counseling notes were not offered into evidence.

One of the items that Sojourner said she had expressed to Mother during visitations was that Mother needed to help G.C. with her physical therapy exercises. Father helped G.C. do some of the exercises, "along with bringing not age-appropriate exercises in," but Mother "just kind of sat there and watched as [G.C.] was trying to do some of the physical therapy exercises on her own." Sojourner acknowledged that Mother and Father had visitation together but said that they could have taken turns with G.C. to do the physical therapy exercises.

Sojourner did not elaborate on what she meant by "not age-appropriate," and she did not describe what kind of exercises G.C. had to perform or why they were necessary.

3. Best Interest

a. DFPS's Concern About Cognitive Delays and Lack of Bonding

Sojourner said that G.C. was behind both cognitively and behaviorally. DFPS had tested G.C. for fetal alcohol syndrome, but the child tested negative. An MRI of G.C.'s head, to see if her head was too small for her brain, was also negative. DFPS could not attribute any medical problem to neglect or maltreatment by the parents. Because G.C. had just turned four years old, she was not yet old enough for substantive testing to determine why she was cognitively delayed.

Sojourner testified that G.C. had improved cognitively—"her occupational therapist thinks she's come a long way, and . . . they're working on the fact that maybe she's not mentally held back, that it's more of a neglected parenting." Sojourner acknowledged that G.C. might have experienced parenting neglect when she was out of the home for six months when she was only a year old and that G.C. might have some mental issues that prevented her from responding to her parents. But she opined that G.C.'s lack of responsiveness to her parents was due to a lack of bonding and had "to do with a lot of the trauma and maltreatment that she's been through." Sojourner acknowledged that no psychologist had made any such determination, and she provided no details about the alleged "trauma and maltreatment." Sojourner said that G.C. did not seem to have an emotional, bonded relationship with her parents but that she had seen G.C. bond with her fictive kin placement of over a year, and she had observed G.C. in her current foster placement and said that G.C. had formed an emotional bond with the adults in that family.

Sojourner stated that G.C. was doing "extremely well" in her current placement but did not elaborate on the details of that placement or the ultimate plans for the child. Sojourner observed that when G.C. came for visits with Mother and Father, she wanted to play with toys instead of interacting with her parents. Instead, "[i]t's more of the parents begging for her attention." Sojourner described G.C. as not upset or distraught when she left a visit with Mother and Father. Sojourner stated that Father tried to show affection to G.C. but that a lot of the time G.C. would be unresponsive; "[Mother] more-so steps back and kind of lets [Father] run the show."

b. Mother's Plans

Mother testified that her plan was to have G.C. returned to her and to move. She said that she had saved money so that she would be able to move but that, as of the week before trial, she and Father still continued to reside in the same apartment and were still in communication with each other. Mother testified that it would be in G.C.'s best interest to come home with Mother to a completely different apartment separate from Father.

c. DFPS's Concerns about Mother's and Father's Ability to Care for G.C.

Sojourner testified that she believed that it was in G.C.'s best interest to terminate Mother's and Father's parental rights because of DFPS's concerns that if G.C. were returned to them, "the maltreatment would continue." Sojourner stated that there had "been several cases and lots of the same services worked over and over again, and still they have not demonstrated the ability to take care of this child."

I. Termination Order and Post-Trial Procedure

The trial court entered an order of termination as to both parents' rights to G.C. The order terminated Mother's parental rights upon finding that it was in the child's best interest to do so and that Mother had endangered the child and had failed to comply with the court order specifically establishing the actions necessary to obtain G.C.'s return to her. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (2) (West Supp. 2017). The order also adjudicated Father as G.C.'s parent, found that termination of his parental rights to her was in G.C.'s best interest, and found—as with Mother—that Father had endangered G.C. and had failed to comply with the court order specifically establishing the actions necessary to obtain G.C.'s return. See id. § 161.001(b)(1)(D), (E), (O), (2), § 160.201(b)(3) (West 2014). The trial court then relieved each parent's appointed counsel. Cf. id. § 107.016(3)(B)-(C) (West Supp. 2017) (requiring, in a termination-of-parental-rights suit filed by a governmental entity, that a parent's appointed attorney continue to serve in that capacity "until the earliest of . . . the date all appeals in relation to any final order terminating parental rights are exhausted or waived; or the date the attorney is relieved of the attorney's duties or replaced by another attorney after a finding of good cause is rendered by the court on the record").

After Mother filed a pro se notice of appeal requesting appointment of counsel, we abated the appeal to the trial court to conduct a hearing, appoint new counsel, and take any other measure necessary to insure that Mother did not forfeit her right to appeal. In the interim, Father also filed a pro se notice of appeal. The trial court appointed counsel for each parent.

III. Termination of Parental Rights

In a termination case, the State seeks not just to limit parental rights but to erase them permanently—to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except the child's right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West Supp. 2017); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, "[w]hen the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures." In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 1391-92 (1982)). We 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); E.R., 385 S.W.3d at 554-55; Holick, 685 S.W.2d at 20-21.

A. Mother's and Father's Issues

In her first issue, Mother argues that the evidence was not legally and factually sufficient to support the best interest finding, but in the summary of the argument section of her brief and in the conclusion of her brief, Mother also argues that the evidence was legally and factually insufficient to support the trial court's findings under section 161.001(b)(1)(D), (E), and (O). Accordingly, we will review the sufficiency of the evidence to support both the section 161.001(b)(1) grounds and the best interest finding with regard to Mother.

DFPS claims that Mother did not challenge the sufficiency of the evidence to support the endangerment or court-order grounds, ignoring the following from Mother in her brief, with regard to whether "on the entire record,"

i. Terminating of [Mother]'s parental rights should be reversed and rendered because the trial court erred in finding that [Mother] knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, that [Mother] engaged in conduct or knowingly placed the child with persons who engaged in conduct with [sic] endangers the physical or emotional well-being of the child, or that [Mother] failed to comply with the provisions of a court order that specifically established the actions necessary for [Mother] to obtain the return of the child who had been in the permanent or temporary managing conservatorship of the TDFPS as there was no clear and convincing evidence to support the same, in fact the evidence is contrary to the court terminating the rights as there was no clear and convincing evidence.

. . . .

The TDFPS failed to present sufficient evidence at trial to meet their burden of proof that the parental rights of [Mother] should be terminated pursuant to the Texas Family Code 161.001(b)[(1)](D), (E), and (O).

In his first four issues, Father argues that the evidence was not legally and factually sufficient to support the best interest finding or the section 161.001(b)(1) findings.

B. Standards of Review

Termination decisions must be supported by clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b), § 161.206(a); E.N.C., 384 S.W.3d at 802. Due process demands this heightened standard because "[a] parental rights termination proceeding encumbers a value 'far more precious than any property right.'" E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758-59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C., 384 S.W.3d at 802. Evidence is clear and convincing if it "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 Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d at 802.

For a trial court to terminate a parent-child relationship, DFPS must establish by clear and convincing evidence that the parent's actions satisfy one ground listed in family code section 161.001(b)(1) and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.).

1. Legal Sufficiency

In evaluating the evidence for legal sufficiency in parental termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that DFPS proved the challenged ground for termination. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). In this case, the trial court found

• under section 161.001(b)(1)(D) and (E) that Mother and Father had endangered G.C.;

• under section 161.001(b)(1)(O) that they had failed to comply with the provisions of a court order that specifically established the actions necessary for them to obtain G.C.'s return when the child had been in the managing conservatorship of DFPS for "not less than nine months as a result of the child's removal" under chapter 262 for the abuse or neglect of the child; and

• that termination of their parental rights would be in G.C.'s best interest.

See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (2).

We review all the evidence in the light most favorable to the finding and judgment. J.P.B., 180 S.W.3d at 573. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved. Id. We consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See id.

We cannot weigh witness credibility issues that depend on the appearance and demeanor of the witnesses because that is the factfinder's province. Id. And even when credibility issues appear in the appellate record, we defer to the factfinder's determinations as long as they are not unreasonable. Id.

If we determine that no reasonable factfinder could form a firm belief or conviction that DFPS proved one of the section 161.001(b)(1) grounds or that the termination of the parent-child relationship would be in the best interest of the child, then the evidence is legally insufficient, and we must generally render judgment for the parents. J.F.C., 96 S.W.3d at 266; see Tex. R. App. P. 43.3.

2. Factual Sufficiency

We are required to perform "an exacting review of the entire record" in determining whether the evidence is factually sufficient to support the termination of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In reviewing the evidence for factual sufficiency, we give due deference to the factfinder's findings and do not supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent violated the endangerment or court order subsections of section 161.001(b)(1) and that termination of the parent-child relationship would be in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (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 in the truth of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

C. Failure to Comply with Court Order

In his third issue, Father argues that the evidence is legally and factually insufficient to support the trial court's finding under subsection (O), arguing that he had completed "each and every item on his court ordered service plan." Sojourner testified that Father had violated the plan provision that required him to refrain from criminal activity, but Father contends that although he was arrested for domestic violence in October 2016, there was no evidence that he had been convicted or "even that charges were pending in relation to said arrest." He further argues that there was no testimony offered by anyone who had been a witness to the alleged incident. Father complains that his parental rights were terminated "due to the highly subjective opinions of the caseworker, and the parents' failure to read additional requirements into the service plan."

Mother argues in the body of the argument under her first issue, the summary of her argument, and in her brief's conclusion that DFPS failed to present sufficient evidence to support termination of her parental rights under subsection (O) when there was no evidence that she had violated her service plan and the primary testimony was that she had completed her service plan.

In its brief to this court, DFPS does not respond to the parents' subsection (O) sufficiency arguments.

The trial court may order termination of the parent-child relationship if it finds by clear and convincing evidence that the termination is in the child's best interest and the parent has

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[.]

Tex. Fam. Code Ann. § 161.001(b)(1)(O), (2).

The court order at issue incorporates the DFPS service plan created and filed for each parent. See id. § 263.106 (West 2014) (stating that after reviewing the original and any amended service plan and making any changes or modifications it deems necessary, the court shall incorporate the original and any amended service plan into the orders of the court and may render additional appropriate orders to implement or require compliance with an original or amended service plan); In re C.Y., No. 02-15-00152-CV, 2015 WL 6394559, at *1-2 (Tex. App.—Fort Worth Oct. 22, 2015, no pet.) (mem. op.).

Under family code section 263.102, the service plan must:

(1) be specific;

(2) be in writing in a language that the parent understands, or made otherwise available;

(3) be prepared by [DFPS] in conference with the child's parents;

(4) state appropriate deadlines;

(5) specify the primary permanency goal and at least one alternative permanency goal;

(6) state steps that are necessary to:

(A) return the child to the child's home if the placement is in foster care;

(B) enable the child to remain in the child's home with the assistance of a service plan if the placement is in the home under [DFPS's] supervision; or

(C) otherwise provide a permanent safe placement for the child;

(7) state the actions and responsibilities that are necessary for the child's parents to take to achieve the plan goal during the period of the service plan and the assistance to be provided to the parents by [DFPS] or other agency toward meeting that goal;

(8) state any specific skills or knowledge that the child's parents must acquire or learn, as well as any behavioral changes the parents must exhibit, to achieve the plan goal;

(9) state the actions and responsibilities that are necessary for the child's parents to take to ensure that the child attends school and maintains or improves the child's academic compliance;

(10) state the name of the person with [DFPS] whom the child's parents may contact for information relating to the child if other than the person preparing the plan; and

(11) prescribe any other term or condition that [DFPS] determines to be necessary to the service plan's success.

Tex. Fam. Code Ann. § 263.102(a)(1)-(11) (West Supp. 2017). DFPS must write the service plan in a manner that is clear and understandable to the parent in order to facilitate the parent's ability to follow the service plan's requirements. Id. § 263.102(d). That is, a DFPS service plan must be sufficiently transparent to allow the parents a fair opportunity to regain their child and avoid losing their parental rights. See, e.g., J.F.C., 96 S.W.3d at 277 (noting that as to section 161.001(b)(1)(O), "[e]ach order directed each parent to perform specific acts" and observing that it was undisputed that both parents failed to comply with numerous, material provisions of court orders that specifically required their compliance to avoid restriction or termination of their parental rights).

Whether a parent has done enough under the family-service plan to defeat termination under subsection (O) is ordinarily a fact question. In re S.M.R., 434 S.W.3d 576, 584 (Tex. 2014) (observing that "[p]arents frequently fall short of strict compliance with a family-service plan's requirements"). But see In re M.C., No. 02-15-00290-CV, 2016 WL 354186, at *4 n.8 (Tex. App.—Fort Worth Jan. 28, 2016, no pet.) (mem. op.) ("The family code does not provide for substantial compliance with a family service plan."); In re N.A., Nos. 02-13-00345-CV, 02-13-00346-CV, 2014 WL 814195, at *5 (Tex. App.—Fort Worth Feb. 28, 2014, no pet.) (mem. op.) (stating that subsection (O) looks only for a parent's failure to comply with a court order, without reference to quantity of failure or degree of compliance, and that it does not provide a means of evaluating partial or substantial compliance with a plan).

In the temporary orders following the parties' adversary hearing on July 12, 2016, the trial court included the following notice:

THE COURT FINDS AND HEREBY NOTIFIES THE PARENTS THAT EACH OF THE ACTIONS REQUIRED OF THEM BELOW ARE NECESSARY TO OBTAIN THE RETURN OF THE CHILD, AND FAILURE TO FULLY COMPLY WITH THESE ORDERS MAY

RESULT IN THE RESTRICTION OR TERMINATION OF
PARENTAL RIGHTS.

Below the notice, the trial court listed the following requirements: • Submit to and cooperate fully in the preparation of a court-ordered psychological or psychiatric evaluation; • Attend and cooperate fully in counseling sessions to address the specific issues that led to the removal of the child from the home and to address any additional issues arising from the psychological examinations or from the counseling sessions; • Attend, participate in, and successfully complete parenting classes and submit to DFPS or file with the court a certificate of completion; • Submit to and cooperate fully in the preparation of a court-ordered drug and alcohol dependency assessment and submit urine samples, saliva samples, or hair follicle samples, as directed by DFPS and at times to be determined by DFPS for analysis by a drug testing laboratory. • Comply with each requirement set out in DFPS's original, or any amended, service plan during the pendency of the suit. In a separate part of the order, the trial court required the parents to have visitation with G.C. "as set forth in Attachment A" and to pay child support "as set forth in Attachment B."

Mother's service plan, which she signed on August 9, 2016, listed nine "task/service" items and thirteen "goals." The tasks mirrored the trial court's order for drug-testing, substance abuse and mental health assessments, counseling, and scheduled visitation, which included the requirement that Mother "demonstrate attachment with [G.C.] by using skills she has learned in parenting classes and using discipline that is age appropriate." The service plan also required Mother to, among other things,

obtain and maintain clean, appropriate housing that provides a safe environment for [G.C.] [and] . . . maintain all working utilities, food, clothing, furniture, bedding, toys and anything else [G.C.] may require. [Mother] will not reside with any person(s) that uses drugs or are involved in any other illegal activities.

And the service plan required Mother to remain in contact with DFPS, to obtain employment "that effectively meets all needs for the family to maintain financial independence and show that ability to provide basic necessities such as food, clothing, and shelter for [G.C.]," and to participate in and successfully complete parenting classes and "show her ability to effectively parent [G.C.] through her actions during her scheduled family visits which will be monitored by the CPS Caseworker, CPS Case Aide and/or CASA." The service plan tasks were listed in a chart with boxes to indicate who was responsible for the assignment, whether the task had been completed or was no longer needed, and the date it was ordered.

Mother's thirteen service plan goals were to: • Demonstrate an ability to provide appropriate caregivers in the absence of the parents; • Demonstrate the willingness and ability to protect G.C. from harm; • Learn how her emotions and behavior may affect G.C.'s emotions and behaviors; • Obtain and complete education/training; • Manage income to meet the family's basic needs; • Demonstrate the ability to follow medical advice for G.C.; • Demonstrate the ability to provide G.C. with adequate care and nurturance; • Demonstrate the ability to protect the child from future abuse or neglect and show concern for G.C.'s future safety; • Understand the cycle of violence and learn how to protect herself and G.C.; • Demonstrate the ability to maintain supportive relationships that are beneficial to the family's situation; • Demonstrate an ability to use willing and appropriate friends and relatives to help with G.C.; • Understand the serious nature of the situation that placed G.C. in harm's way; and • Allow CPS caseworker access to G.C. Although no similar charting mechanism was set into place for the goals, the service plan itself included the following under "PARENT(S) ACKNOWLEDGMENT,"

4. I understand my progress on this plan will be evaluated as follows:

A) Have I completed my tasks in the plan?
B) Have I achieved my goals in the plan?
C) Can I provide for the ongoing safety and well-being of my child(ren)?

Sojourner testified that the goals were specialized for Mother but not custom-made, stating, "It's part of the . . . on our computer, it's part of our how to make a service plan, where there's different phrases that are ready for you to use for different cases." Sojourner said that the plan had to be edited to fit the case.

Father's service plan, which he signed on August 12, 2016, contained ten tasks and twenty-one goals. In addition to the same nine tasks that were assigned to Mother in her service plan, DFPS added that Father would "refrain from any criminal activity and will inform caseworker on any updates on pending criminal charges. [Father] will inform worker of anyone [sic] on his pending charges such as Attorneys, probation officer or parole officers."

Ten of Father's goals were the same as Mother's. Father's remaining eleven goals were to: • Demonstrate the ability to communicate with his spouse or support system to deal with everyday problems; • Learn to control angry feelings and actions to prevent harm to others; • Actively participate in therapy to understand how his own abuse/neglect as a child may impact his current parenting style; • Learn and use parenting practices that meet the emotional and developmental needs of the child; • Demonstrate an ability to express his anger in ways that do not hurt his children or others; • Address his own mental health needs; • Gain an understanding of how the family history of maltreatment has influenced the current situation; • Learn appropriate ways to deal with stress in order to reduce the level of stress and chaos in the home; • Stop participating in criminal acts and accept responsibility for prior criminal activities; • Demonstrate an ability to change the pattern of behaving that resulted in abuse/neglect; and • Demonstrate a willingness and ability to protect the child from people who may inflict serious harm.

These ten goals were to demonstrate the willingness and ability to protect the child from harm, to learn how his emotions and behaviors may affect G.C.'s emotions and behaviors, to obtain and complete "education/training," to manage income to meet the family's basic needs, to demonstrate the ability to follow medical advice for the child, to provide the child with adequate care and nurturance, to protect the child from future abuse or neglect and show concern for the child's future safety, to use willing and appropriate friends and relatives to help with the child, to understand the serious nature of the situation that placed the child in harm's way, and to allow the CPS caseworker access to the child.

On August 31, 2016, the trial court issued a status hearing order in which it stated that it had reviewed the service plans and found that Mother and Father had reviewed and understood the service plans and had "been advised that unless [the parents are] willing and able to provide the child with a safe environment, even with the assistance of a service plan, within the reasonable period of time specified in the plan, [their] parental and custodial duties and rights may be subject to restriction or to termination or the child may not be returned to [them]." On December 14, 2016, the trial court held a permanency hearing before the final order and found that Mother and Father had made progress on their service plans and that no further plans, services, or temporary orders were necessary to ensure that a final order would be rendered before the suit's dismissal date of July 3, 2017. On April 5, 2017, the trial court held a permanency hearing and noted that Mother and Father had demonstrated partial compliance with their service plans. Sojourner testified that Mother's service plan was never amended and that she was not asked to perform additional services.

At trial, no one disputed that Mother and Father had completed the tasks set out in their service plans, with one exception. Sojourner considered Father's October 2016 arrest for alleged domestic violence against Katie as a failure to comply with his plan. Yet, as to that arrest, Sojourner acknowledged it was a mere accusation of criminal activity for which she did not know if he had been adjudicated guilty. Further, Sojourner testified that after the October 2016 family violence arrest, she told Father that they would reevaluate the service plan if his anger showed up again. The record does not reflect that either parent's service plan was reevaluated or modified during the course of the case.

While Sojourner opined that she did not think Mother had met her service plan goals, she agreed that this was not the specific standard against which to determine whether Mother had demonstrated compliance with the service plan. Cf. N.A., 2014 WL 814195, at *6 (holding evidence sufficient to support finding that parent failed to comply with the court order when he did not provide child support or medical support, did not attend all of his required AA/NA meetings, did not establish suitable employment for six months, and did not establish safe, stable, and suitable housing for six months, all of which the court had ordered him to do); In re O.R.F., 417 S.W.3d 24, 38 (Tex. App.—Texarkana 2013, pet. denied) (holding evidence sufficient to support termination under subsection (O) when it was undisputed that parent failed to maintain regular contact with caseworker, did not submit to random drug testing, did not complete the required psychological evaluation, did not pay court-ordered child support, and did not maintain appropriate housing for at least four months). That is, the items set out for measurement are the tasks in the service plan.

We will consider the evidence as it relates to the service plans' goals in the best interest analysis. See, e.g., In re R.R.C., No. 04-17-00306-CV, 2017 WL 4413205, at *3 (Tex. App.—San Antonio Oct. 4, 2017, pet. denied) (mem. op.) ("A failure to complete service plans can be one of a number of the acts or omissions by a parent that are relevant to a best-interest analysis."); In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (stating that a parent's failure to comply with a family service plan can support a finding that termination is in the best interest of the child).

While completion of the tasks is supposed to demonstrate a parent's ability to achieve his or her plan's goals, see Tex. Fam. Code Ann. § 263.102, the tasks themselves must be specific. No one disputes that, contrary to the language in the termination order, Mother and Father completed the specific tasks required by DFPS and the court's order.

As to the appropriateness of the home Mother provided to G.C., Sojourner testified that Mother's home was appropriate except for Father's presence in it. Yet Sojourner readily admitted that she had never told either Mother or Father that Father's presence in the home would render it inappropriate. To terminate parental rights under subsection (O) after the failure to give the parents such express notice of "any other term or condition that [DFPS] determines to be necessary" to the success of the service plan and the failure to embody that term or condition in the court order is violative of the due process required by our standard of review. See Tex. Fam. Code Ann. § 263.102 (requiring service plan to be specific, to be written in a language that the parent understands, and to prescribe any term or condition that DFPS determines to be necessary to the plan's success); In re C.J.L., No. 01-17-00283-CV, 2017 WL 4366010, at *8 (Tex. App.—Houston [1st Dist.] Oct. 3, 2017, pet. denied) (mem. op.) ("[T]he Department must present evidence that the plan established specific actions the parent must take for the return of the child."); In re D.N., 405 S.W.3d 863, 878 (Tex. App.—Amarillo 2013, no pet.) (concluding that the court was "outside the bounds of a strict but reasonable application of subsection (O)" when it had "nothing which clearly and convincingly specifies what Martha was supposed to do to comply or indicates what she did or did not do to be considered noncompliant"); B.L.R.P., 269 S.W.3d at 711 ("Strictly scrutinizing the underlying proceedings, we decline to condone termination of W.B.'s parental rights on the basis of a violation of a court order that did not exist."); see also E.R., 385 S.W.3d at 554 (requiring the State to observe fundamentally fair procedures); E.N.C., 384 S.W.3d at 802 (requiring strict construction of termination statutes); Holick, 685 S.W.2d at 20 (requiring strict scrutiny of termination proceedings and termination statutes in the parent's favor).

In essence, in this situation Sojourner imposed a type of "double secret probation" upon the parents, and then criticized Mother and Father for violating expectations that were never communicated to them. See National Lampoon's Animal House (Universal Pictures 1978) ("Double secret probation"); Cleaning Up Bankruptcy's Reappointment Mess, 10 No. 6 Cons. Bankr. News 1 (Nov. 2, 2000) ("It's like double secret probation in [the movie] 'Animal House.' We're not telling you what the rules are, but when you violate them, you're out."). We consider the due process ramifications of DFPS's actions within our review of the parents' challenges to the sufficiency of the evidence to support the trial court's judgment. See In re N.K.T., No. 01-16-00439-CV, 2016 WL 6277415, at *7-10 & n.1 (Tex. App.—Houston [1st Dist.] Oct. 27, 2016, no pet.) (mem. op.) (reviewing evidence to support DFPS's "reasonable efforts" via the service plan to return the child under subsection (N) despite DFPS's argument that the parent had failed to preserve a due process complaint about the service plan's noncompliance with section 263.102); In re V.L.A., No. 02-13-00147-CV, 2013 WL 5434008, at *7 n.7 (Tex. App.—Fort Worth Sept. 26, 2013, no pet.) (mem. op.) (stating that under the case's facts, the parent's motion for new trial, in which she raised her claim that the evidence was insufficient to support termination, "adequately raised her claim in the trial court that the evidence was insufficient to support DFPS's decision to proceed to termination, rendering the termination a violation of her due-process rights"); In re B.L.R.P., 269 S.W.3d 707, 710 (Tex. App.—Amarillo 2008, no pet.) (agreeing with appellant's argument that the absence of a court order requiring him to comply with the Department's service plan per subsection (O) "is another facet of his factual sufficiency argument").

Finally, Father was arrested, allowing the trial court to reasonably conclude that he had failed to "refrain" from criminal activity after the court order was put into effect and making the evidence legally sufficient to support the trial court's subsection (O) finding. See, e.g., In re A.R.B., No. 14-14-00146-CV, 2014 WL 2936925, at *12 (Tex. App.—Houston [14th Dist.] June 26, 2014, no pet.) (mem. op.) (concluding that parent's arrest during pendency of the termination case showed that he failed to refrain from engaging in criminal activity because the trial court could have believed the police report indicating that the drugs belonged to him). But because Father was not actually charged with or convicted of having committed any crime by the time of the termination trial, and the record contains no other evidence about the arrest other than that it involved Katie and an alleged domestic violence incident, we think that the evidence is factually insufficient to terminate his parental rights on this ground. Cf. In re L.M., No. 02- 16-00127-CV, 2016 WL 5957030, at *15 (Tex. App.—Fort Worth Oct. 13, 2016, pet. denied) (mem. op.) (observing that the parent had been required to refrain from using drugs or drinking alcohol and to avoid engaging in any criminal behavior but "[b]y Father's own admission, he violated this requirement when he consumed alcohol in October 2015 and was subsequently arrested for DWI"); In re M.C., 482 S.W.3d 675, 682, 687 (Tex. App.—Texarkana 2016, pet. denied) (holding evidence legally and factually sufficient to support termination under subsection (O) when the testimony showed that in violation of the court's order, the parent—including by her own admission—continued to use illicit drugs, drink alcohol, and engage in criminal activity for which she had received deferred adjudication).

Accordingly, we sustain the legal sufficiency argument as to subsection (O) raised under Mother's first issue and the factual sufficiency argument as to subsection (O) raised under Father's third issue. We must next consider whether the trial court's judgment can be upheld under subsections (D) or (E).

D. Endangerment

Subsections (D) and (E) are the endangerment grounds for terminating a parent's rights to his or her child. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). The difference between these subsections is the source of the physical or emotional endangerment to the child. In re R.S., No. 02-15-00137-CV, 2015 WL 5770530, at *3 (Tex. App.—Fort Worth Oct. 1, 2015, no pet.) (mem. op.). Endangerment—defined as exposing the child to loss or injury or to jeopardy— under subsection (D) arises from the child's environment, while endangerment under subsection (E) must be a direct result of a parent's conduct, including acts, omissions, or failures to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). However, a parent's conduct can also contribute to an endangering environment under subsection (D) because "abusive or violent conduct by a parent or other resident of a child's home may produce an environment that endangers the physical or emotional well-being of a child." Id. (citing In re W.S., 899 S.W.2d 772, 776-77 (Tex. App.—Fort Worth 1995, no writ); Ziegler v. Tarrant Cty. Child Welfare Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ ref'd n.r.e.)). A parent or caregiver's illegal drug use and drug-related criminal activity also contribute to an endangering environment. Id. (citing In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied)).

In contrast, termination of parental rights under subsection (E) requires more than a single act or omission by the parent; rather, it requires a voluntary, deliberate, and conscious course of conduct by the parent that endangers the child, even though the conduct need not be directed at the child and the child need not actually suffer injury. In re L.M.F., No. 02-13-00459-CV, 2014 WL 2465137, at *13 (Tex. App.—Fort Worth May 29, 2014, no pet.) (mem. op.) (citing J.T.G., 121 S.W.3d at 125); see also In re R.W., 129 S.W.3d 732, 741 (Tex. App.—Fort Worth 2004, pet. denied) (stating that the factfinder was not required to ignore a long history of dependency and destructive behavior, including abusing drugs and alcohol, in considering endangerment). Furthermore, conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. L.M.F., 2014 WL 2465137, at *14; R.W., 129 S.W.3d at 739. And although mental incompetence or mental illness alone is not a basis for terminating the parent-child relationship, when a parent's mental state allows him or her to engage in conduct that endangers the child's physical or emotional well-being, "'that conduct has a bearing on the advisability of terminating the parent's rights.'" L.M.F., 2014 WL 2465137, at *14 (quoting Maxwell v. Tex. Dep't of Family & Protective Servs., No. 03-11-00242-CV, 2012 WL 987787, at *9 (Tex. App.—Austin Mar. 23, 2012, no pet.) (mem. op.)). Domestic violence and a propensity for violence may be considered as evidence of endangerment. Id. (citing In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.)).

Because, as demonstrated above, the evidence pertaining to subsections (D) and (E) is interrelated, we may conduct a consolidated review of the evidence. In re S.H., No. 02-17-00188-CV, 2017 WL 4542859, at *10 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem. op.).

1. Sufficiency of the Evidence as to Endangerment by Father

Father argues that although he is alleged to have committed domestic violence, no evidence was offered to show or suggest that he was ever convicted of having committed it. Notwithstanding the lack of any judgment of conviction offered during trial, viewed in the light most favorable to the finding and the judgment, the trial court had evidence before it that would have allowed it to reasonably form a firm belief or conviction that Father had assaulted Mother in September 2014 and March 2016—both times while G.C. was in the arms of one parent or the other. The trial court also had evidence before it that Father had invited Katie—a marijuana-using, mentally ill individual who allegedly made death threats and tended to lie—into the home with G.C. and allowed Katie to help take care of the child. And Father attempted suicide approximately a year and half before the trial by cutting his arms, and he threatened to commit suicide after G.C. was removed in June 2016. Streiff, the DFPS investigator, testified that a parent's attempted suicide could emotionally damage a child. Mother testified that she did not believe that Father was capable of protecting G.C. from his "impulse control and other people who have mental health problems that are in his life." And Father was arrested for allegedly assaulting Katie after G.C.'s removal.

We conclude that the trial court had legally sufficient evidence to reasonably form a firm belief or conviction that Father had endangered G.C. under both subsections (D) and (E). With regard to subsection (E), the record reflects evidence that the child's physical and emotional well-being was endangered as a direct result of Father's acts of harm to Mother and himself (and allegedly to Katie when he was arrested in October 2016). With regard to subsection (D), the record likewise reflects that Father knowingly placed or knowingly allowed G.C. to remain in conditions or surroundings that endangered her physical or emotional well-being by allowing Katie to live in the child's home and provide care for the child. Accordingly, we overrule the portion of Father's first and second issues pertaining to the legal sufficiency of the evidence to support termination of his parental rights on endangerment grounds.

DFPS argues that this evidence is also factually sufficient to support the termination of Father's parental rights on endangerment grounds. However, based on our exacting review of the entire record, we disagree. As pointed out by Father, no evidence was offered that he had ever been convicted of committing domestic violence. And notwithstanding the deference owed to the factfinder's findings, two isolated events of domestic violence and an alleged third incident over the course of three years—particularly when the issue of whether Father's anger problems arose when he ran out of medication for his PTSD was only alluded to but not otherwise developed in the record—do not demonstrate a deliberate and conscious course of endangering conduct. Mother testified that when Father took his medication, he was calmer and more coherent, and his anger issues were manageable, and she said that he only failed to take his medication when waiting for his prescription to be refilled. No one testified about what mental health issues Father suffered, other than a reference to PTSD, an attempt at suicide, and an alleged threat to commit suicide, and no one testified about what medication or medications Father was taking to treat his mental health issues. Cf. L.M.F., 2014 WL 2465137, at *14 (stating that mental illness alone is not a ground for terminating the parent-child relationship although a parent's endangering conduct that is related to the parent's mental state bears on the advisability of termination). Neither Father's psychological evaluation nor his counseling notes were offered into evidence, and—other than brief testimony about the two domestic violence incidents involving Mother, his attempted suicide, his alleged threat to kill himself, and his alleged assault of Katie in October 2016—no other evidence was presented about Father's allegedly endangering conduct or mental state. Cf. id. at *1, *15-16 (noting that although DFPS failed to offer parent's psychological exam into evidence, parent's MHMR and hospital records showed that she suffered from schizoaffective disorder and had been hearing voices, drinking alcohol with her medications, and skipping her medications, and other evidence showed that during the case she frequently appeared erratic and lacking in impulse control, would become overly emotional, incoherent, loud, and disruptive, and had difficulty drawing connections between her past and present behavior—including having previously relinquished her rights to five of her eight children—and the risks that her behavior presented to her child).

To the contrary, the evidence showed that when Father was concerned about G.C.'s safety, he and Mother placed the child with a family friend. And while Father allowed Katie to care for G.C. even when he suspected that she had been using drugs, because Father and Katie did not testify, the record is silent about the dynamics of their relationship other than what Mother recounted in her testimony and the evidence of Father's arrest for an alleged domestic violence incident involving Katie.

Other than oblique references to a "sensitive" case and news media coverage, no evidence was offered to explain what made Father think that G.C. might be endangered.

Had Mother and Father been able to keep Katie under constant surveillance, there would have been no need to rely upon her to care for G.C. Both Mother and Father worked a lot—in November 2015, Father was working two jobs, and Mother worked six to eight hours a day. Streiff testified that when Mother was not working, Mother "pretty much kept to herself" at home.

Nor does the record reveal anything about the child's living environment during November 2015 except that the family had a one-bedroom apartment in which Father and Katie shared the bedroom and Mother and G.C. shared the living room, which had been converted into a second bedroom. In April 2017 and May 2017, Sojourner testified that the home was appropriate except for Father's living there, although no one from DFPS ever told either parent that Father should not be living there if they wanted the child to come home. And no one from DFPS sought to remove Father from the home so that G.C. could return. The burden was on DFPS to prove endangerment, not upon Father to refute it. Based on the entire record, such a threadbare showing of endangerment does not meet the State's burden to prove facts sufficient to support a finding of endangerment by clear and convincing evidence. Accordingly, we conclude that the evidence is factually insufficient to support terminating Father's parental rights under either endangerment subsection, and we sustain the portion of Father's first and second issues pertaining to the factual sufficiency of the evidence to support termination of his parental rights on endangerment grounds.

2. Sufficiency of the Evidence as to Endangerment by Mother

For the same reasons as set out above, we cannot conclude that the evidence that Mother endangered G.C. is either legally or factually sufficient to support termination under subsections (D) or (E). Mother was the victim in the two domestic violence incidents about which testimony was presented and she knew less than Father about Katie's drug and mental health issues when Katie moved in. No evidence was presented about Mother and Father's relationship at the time of trial other than that they were living together but that Mother planned to move.

DFPS refers us to In re M.N.G., 147 S.W.3d 521, 538 (Tex. App.—Fort Worth 2004, pet. denied) (op. on reh'g), for the proposition that a parent's exposure of children to abusive partners is endangering conduct that supports a finding under subsection (E), and to In re M.V., 343 S.W.3d 543, 547 (Tex. App.—Dallas 2011, no pet.), and Phillips v. Texas Department of Protective and Regulatory Services, 149 S.W.3d 814, 819 (Tex. App.—Eastland 2004, no pet.), for the proposition that a parent's failing to end a relationship with an abusive partner and allowing children to remain in the abusive environment created by domestic violence supports termination under subsections (D) and (E).

While we do not disagree with these general propositions, the evidence to support the findings must still be clear and convincing. In M.N.G., for example, the mother's parental rights had already been terminated to four other children—her rights to the first child were terminated in 1990 based on endangerment, and termination of her rights to the other three children was pending when she gave birth to the child at issue in the suit in 2001. 147 S.W.3d at 526, 533. The mother in that case agreed at trial that she had endangered her other children by exposing them to abusive partners—plural—and that she had a pattern of conduct wherein she relied upon others to provide shelter and money for her, had difficulty maintaining a stable home, had been unable to remain employed for longer than a few months, and had difficulty providing food and medical care for her children when they were in her custody. Id. at 533.

As to the mother's oldest child in M.N.G., she had taken him to the hospital and did not return for him, and she admitted at trial that her relationship with her oldest child's father was abusive and controlling and that her rights to that child were terminated on endangerment and abandonment grounds in a default judgment. Id. at 536. Not long thereafter, she married someone who was violent and physically abused her during pregnancy and remained with him for a year after she gave birth to her second oldest child. Id. The mother subsequently left that abusive relationship and entered another one—she acknowledged at trial that she "saw a pattern developing wherein she would go from one abusive relationship to another seeking someone to support her" and her child. Id. at 536-37. By the time she gave birth to her third child, she was not allowed to use the phone or leave the house and she and the children were sometimes locked inside the home to keep them from leaving. Id. at 537. She stayed in that situation for six years despite the physical abuse that the paramour perpetrated on one of her children because her paramour told her he would kill himself if she left. Id. When DFPS investigated a physical neglect referral, someone at the house threatened to shoot the DFPS investigator, who returned with the police; the rat-infested house had feces all over the walls and was subsequently condemned. Id. During that case, the mother became homeless while her children were in foster care; she was living under a freeway overpass when she became pregnant with M.N.G. Id. at 538. The mother moved several more times and admitted at trial that she had opportunities to break out of her pattern of choosing abusive men and exposing her children to them but that she had chosen not to. Id.

In comparison to the facts in M.N.G., the paltry facts before us—two incidents of domestic violence over three years and very little other information about Mother's and Father's treatment of G.C. and each other and their mental health problems, or lack thereof—thus distinguish Mother's case.

Mother's case is likewise distinguishable from M.V. In that case, the father began verbally and physically abusing the child's mother during her pregnancy by pulling her hair, hitting her with his fists, and kicking her in the stomach area; the abuse continued after the child was born—on one occasion, after the mother spent $1.50 for soap for the baby without the father's permission, he hit her with a telephone, knocking out two of her front teeth and fracturing her jaw, while the baby was in his crib. 343 S.W.3d at 545, 547. The mother's parents and the child's father urged her to sign an affidavit of nonprosecution for the aggravated assault charge arising out of the phone incident and urged her to return home after DFPS offered her services, including shelter. Id. at 545-46. Other instances of domestic violence included the father's grabbing her by the throat and pushing her against the wall while she held the child and tried to call 911 and the father's slapping her violently while she fed the child. Id. at 547. She testified that she would obey the father if he told her to return to their apartment with the child and answered "yes" when asked if she did everything he told her to do. Id. When the mother signed an affidavit of voluntary relinquishment, child protective services personnel explained to her that because the father's rights had not been terminated, there was no assurance that the child could be kept out of his care. Id.

Our sister court concluded that the jury in that case could have found by clear and convincing evidence that the mother had endangered the child through conduct and through the creation of an endangering environment. Id. In contrast, the record before us contains no evidence about how Mother and Father interacted during her pregnancy with G.C. or any frequent instances of abuse, and it contains very little evidence about how Mother and Father interacted on a regular basis with each other and the child. And the record here contains an additional fact—that DFPS personnel failed to reveal to Mother that unless she stopped living with Father, G.C. would not be returned to her.

In Phillips, the mother only raised one issue—jurisdiction—with regard to the termination of her parental rights to the child, while the father challenged the findings of endangerment under subsections (D) and (E). 149 S.W.3d at 816, 817. As to environment, the evidence showed that during the opening investigation, the child lived in a very dirty roach-infested home, with broken windows covered with plastic and cardboard, and no water; on a cold day, the child and his siblings were "barely clothed" and the only heat in the house came from a gas heater in the front room that was an open flame without any type of grill on it. Id. at 818. The only edible food in the house was some eggs and beer. Id. In the first 40 months of the life of the child at issue, he lived in 13 different places. Id. The foster mother in Phillips testified that when she first received the child, he had lice and poor bathroom habits, was underweight, and anemic, and he cried frequently. Id. at 819.

Both parents used methamphetamine, heroin, cocaine, marijuana, and "a lot of crack" while the children were in the house. Id. The father would also drink "'a case, a case-and-a-half' of beer on an average day," and during his visits with the child, he smelled of alcohol and would end visits with the child "in such a manner as to bring fault upon A.P., and he would leave A.P. crying hysterically." Id. He stopped visiting the child at some point and did not appear at the termination trial. Id. at 818-19. He also had a reputation as a violent, abusive person, and he assaulted the father of one of the mother's other children with a motorcycle chain, splitting the man's eye and breaking his shinbone. Id. at 819. We think that the evidence in Phillips showed that the father endangered the child even before considering any domestic abuse involving the child's mother. All three of the cases DFPS relies upon are distinguishable based on the sheer amount of evidence—horrifying, graphically descriptive evidence—presented in those cases, as opposed to the one before us. Accordingly, we sustain Mother's legal sufficiency argument under her first issue.

The Eastland court recounted this description of the child's father: "Charley's nickname became 'Nasty' after he had been in a fight and had bitten off his opponent's nose and swallowed it; he had this nickname tattooed on his body." Phillips, 149 S.W.3d at 819.

The mother in Phillips testified that the child's father had physically abused her and had threatened her with a gun, had physically assaulted his other children, and had physically assaulted "business associates" at their home but that she had talked with him about getting back together, and she told the jury that she would love him until the day she died. 149 S.W.3d at 819.

E. Best Interest

Both parents challenge the legal and factual sufficiency of the evidence to support the trial court's best interest finding. Father argues that the only testimony on best interest was Sojourner's "nebulous concern that, if G.C. was returned, maltreatment would continue." The State argues that the same evidence that supports terminating the parents' rights on endangerment grounds—Father's domestic violence and lack of self-control, association with Katie, and suicidal tendencies, his arrest for assaulting Katie after completing an anger management program, and Mother's acknowledgment that Father was incapable of protecting G.C. from his lack of impulse control but continuing to live with him and bailing him out of jail after he was arrested for assaulting Katie—supports the trial court's best interest finding.

1. Presumption and Factors

There is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

We review the entire record to determine the child's best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative of both the subsection (1) grounds and best interest. Id. at 249; C.H., 89 S.W.3d at 28. Nonexclusive factors that the trier of fact in a termination case may also use in determining the best interest of the child include

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the future;

(C) the emotional and physical danger to the child now and in the future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote the best interest of the child;

(F) the plans for the child by these individuals or by the agency seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the

existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (citations omitted); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best interest finding, "we consider, among other evidence, the Holley factors"); E.N.C., 384 S.W.3d at 807. These factors are not exhaustive, and some listed factors may be inapplicable to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child. Id. On the other hand, the presence of scant evidence relevant to each factor will not support such a finding. Id.

2. Analysis

There was no evidence presented of the four-year-old child's desires and scant evidence of her emotional and physical needs other than Sojourner's testimony that the child was cognitively and behaviorally delayed and had to do physical therapy exercises. Sojourner testified that no medical problem could be attributed to any neglect or maltreatment by the parents. Some evidence was admitted that tended to indicate that when Father did not take his medication, he could be violent or suicidal, presenting an emotional or physical danger to the child, but no evidence was admitted that Mother presented an emotional or physical danger to G.C. other than her relationship with Father. Mother's decision to stay with Father during the case was attributed at least in part to economic necessity, and Mother testified that she had saved money so that she and G.C. could live together without him.

The legislature has recently amended section 161.001 to provide that a court may not make a finding under subsection (b) and order termination of the parent-child relationship based on evidence that the parent is economically disadvantaged and that a court may not order termination under subsection (O) based on the failure by a parent to comply with a specific provision of a court order if a parent proves by a preponderance of the evidence that he or she was unable to comply with the specific provisions and that he or she made a good faith effort to comply with the order and the failure to comply is not attributable to any fault of the parent. See Tex. Fam. Code Ann. § 161.001(c)(2), (d) (West Supp. 2017).

Sojourner claimed that she had seen G.C. bond with fictive kin and her current foster placement instead of her parents, but DFPS presented no evidence to show the parental abilities of the foster family and the stability of their home or whether adoption by the foster family was DFPS's goal for the child. Sojourner testified that Father had helped G.C. do some of her physical therapy exercises but that Mother had not and that the parents could have taken turns. Sojourner did not elaborate upon what kind of exercises G.C. had to do or why.

While Sojourner testified that Mother's and Father's parental rights should be terminated because the parents had had "several cases and lots of the same services worked over and over again," very little evidence of Mother's and Father's alleged repetition of DFPS services was presented at trial. To the contrary, with regard to the parents' service plan goals, the record reflects that when they thought G.C. might be in danger, they placed her with a family friend, they had jobs and maintained an apartment that was deemed "appropriate," and they allowed their caseworker access to G.C. With regard to the rest of the goals, there was no or little evidence offered to show what Mother and Father had learned or failed to learn from their services. No evidence about the content of the services provided to Mother or Father was offered. Little or no evidence was offered to show that they were unwilling or unable to protect G.C. from harm, that they were unable to follow medical advice, or that they were unable to provide the child with adequate care or nurturance—and there was no evidence about G.C.'s medical condition other than Sojourner's testimony that the child was "behind cognitively and behaviorally" and had physical therapy exercises. No evidence on these issues was presented as to G.C.'s foster family. Mother had been given a domestic violence handout by law enforcement officers after both incidents with Father. While Sojourner testified that she did not think that Mother understood that being punched in the arm or the face was violent, no evidence was offered about Mother's ability to comprehend "the cycle of violence" or whether this was an item discussed in her counseling and other services.

Reviewing all of the evidence, which was scant, in the light most favorable to the best interest finding, we cannot say that the trial court could have reasonably formed a firm belief or conviction that it would be in G.C.'s best interest to terminate Mother's and Father's parental rights. Cf. In re D.R.T., Jr., No. 02-11-00213-CV, 2012 WL 1868535, at *1-14, *18 (Tex. App.—Fort Worth May 24, 2012, no pet.) (mem. op.) (holding evidence sufficient to support best interest finding when record reflected that the mother not only failed to recognize how she had endangered her children through the domestic violence in her relationship with her paramour—who had a history of incarceration, of drug use, and of leaving her stranded—but also failed to complete her CPS service plan, failed to find stable housing and employment, and missed multiple visits with her children in contrast to other evidence showing that the children had stable, healthy homes away from her and that their caregivers had appropriate and protective plans for the children). Accordingly, we sustain Father's fourth issue and the remainder of Mother's first issue.

Based on our resolution of these dispositive issues, we do not reach Mother's second and third issues or Father's fifth issue. See Tex. R. App. P. 47.1.

IV. Conclusion

Having sustained Mother's first issue, we reverse the trial court's judgment terminating her parental rights to G.C. and render judgment in her favor. Having sustained Father's fourth issue with regard to the legal insufficiency of the evidence to support the best interest finding, and having sustained his first, second, and third issues pertaining to the factual insufficiency of the evidence to support termination of his parental rights on the endangerment and court-order grounds, we reverse the trial court's judgment terminating Father's parental rights to G.C. and remand the case for a new trial as to Father.

Mother does not address in her appellate brief the trial court's findings in the order terminating her parental rights to G.C. that appointing Mother as G.C.'s permanent managing conservator would not be in the child's best interest because the appointment would significantly impair G.C.'s physical health or emotional development and that appointing DFPS as the child's managing conservator would be in the child's best interest. Cf. Tex. R. App. P. 38.1(f), (i). Accordingly, in these circumstances, reversal of the trial court's termination judgment as to Mother does not affect the trial court's conservatorship appointment. See In re J.A.J., 243 S.W.3d 611, 612-13, 617 (Tex. 2007) (observing that the trial court continuously reviews the propriety of DFPS's conservatorship at placement-review hearings, which occur at least once every six months until the child becomes an adult).

/s/ Bonnie Sudderth

BONNIE SUDDERTH

CHIEF JUSTICE PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ. DELIVERED: January 25, 2018

In re G.C.

Summary

Opinion

I. Introduction

II. Factual and Procedural Background

A. Events before November 2015

B. DFPS's November 2015 Investigation

C. The February 2016 Safety Plan

D. The March 2016 Assault

E. The June 2016 Safety Plan

F. G.C.'s Removal

G. Post-Removal Procedures and Service Plans

H. Termination Trial

I. Termination Order and Post-Trial Procedure

III. Termination of Parental Rights

A. Mother's and Father's Issues

B. Standards of Review

C. Failure to Comply with Court Order

D. Endangerment

E. Best Interest

IV. Conclusion

In re G.C.

In re G.C.

Case Details

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In re G.C.

Summary

Opinion

I. Introduction

II. Factual and Procedural Background

A. Events before November 2015

B. DFPS's November 2015 Investigation

C. The February 2016 Safety Plan

D. The March 2016 Assault

E. The June 2016 Safety Plan

F. G.C.'s Removal

G. Post-Removal Procedures and Service Plans

H. Termination Trial

I. Termination Order and Post-Trial Procedure

III. Termination of Parental Rights

A. Mother's and Father's Issues

B. Standards of Review

C. Failure to Comply with Court Order

D. Endangerment

E. Best Interest

IV. Conclusion

In re G.C.

In re G.C.

Case Details

CitationsCopy Citation

Citing Cases

Citations