Opinion
No. 04-18-00635-CV
05-22-2019
In the INTEREST OF E.F., J.P.V., V.J.V., and R.J.V., Children
Appellant mother ("Mother") appeals the trial court's order terminating her parental rights. On appeal, Mother contends the evidence is legally and factually insufficient to support the grounds upon which her rights were terminated as well as the best interests finding. We affirm the trial court's order.
BACKGROUND
The Texas Department of Family and Protective Services ("the Department") became involved with Mother and her children when Mother left the children alone at the Haven for Hope shelter. When the shelter was unable to contact Mother, the Department removed the children and placed them in foster care.
Ultimately, the Department moved to terminate Mother's parental rights on numerous grounds. After the August 2018 final hearing, the trial court terminated Mother's parental rights on two grounds and found termination would be in the children's best interests. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(O), (P), 161.001(b)(2). Mother appealed.
The trial court also terminated the parental rights of the children's respective fathers. The fathers, however, did not appeal.
ANALYSIS
Mother challenges the legal and factual sufficiency of the evidence in support of the trial court's findings with regard to the grounds for termination and best interests. See TEX. FAM. CODE §§ 161.001(b)(1)(O), (P), 161.001(b)(2).
The trial court took judicial notice of pleadings, service of process documents, orders, service plans, and CASA reports. A trial court may take judicial notice of its own records in matters that are generally known, easily proven, and not reasonably disputed. In re A.R.R. , No. 04-18-00578-CV, 2018 WL 6517148, at *1 (Tex. App.—San Antonio Dec. 12, 2018, pet. denied) (mem. op.); In re B.R. , 456 S.W.3d 612, 618 n.4 (Tex. App.—San Antonio 2015, no pet.). Thus, a court may, for example, take judicial notice that a pleading has been filed, of its own orders, or that it signed an order adopting a service plan and the plan's requirements. In re B.R. , 456 S.W.3d at 618 n. 4. However, a court may not take judicial notice of allegations contained in such documents and the allegations cannot be used to support a termination order, i.e., a court may not take judicial notice of the truth of allegations in its records. In re A.R.R. , 2018 WL 6517148, at *1 ; In re B.R. , 456 S.W.3d at 618 n.4. Thus, in our sufficiency review, we will not consider allegations in the documents the trial court judicially noticed.
Standard of Review
Clear and convincing evidence must support a trial court's findings under section 161.001(b)(1) and (b)(2) of the Texas Family Code ("the Code"). See TEX. FAM. CODE § 161.001(b). "Clear and convincing evidence" is "proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Id. § 101.007. Courts require this heightened standard because termination of parental rights implicates due process. In re A.B. , 437 S.W.3d 498, 502 (Tex. 2015). When reviewing the legal and factual sufficiency of the evidence, we apply the well-established standards of review. See TEX. FAM. CODE §§ 101.007, 161.206(a) ; In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency). These standards require that we determine whether the evidence is such that the trier of fact could reasonably form a firm belief or conviction that termination is in the child's best interest. In re J.F.C. , 96 S.W.3d 256, 263 (Tex. 2002).
In conducting a sufficiency review, we may not weigh a witness's credibility because it depends on appearance and demeanor, and these are within the domain of the trier of fact. In re J.P.B. , 180 S.W.3d at 573. Even when such issues are found in the appellate record, we must defer to the fact finder's reasonable resolutions. Id.
Sufficiency of the Evidence — Grounds for Termination
Although we recognize the trial court and the parties in this proceeding had many hearings before the date of trial, we emphasize that none of the previous hearings constitute evidence that can support the trial court's order terminating a parent's rights. The only evidence that can support the trial court's order is that evidence admitted at trial. The reporter's record in this case is 53 pages total, including the cover, list of appearances, table of contents, and certification (4 pages), announcements and information about service on the fathers (3 pages), substantive evidence about the fathers (4 pages), and the closing arguments and court's pronouncements (8 pages). That leaves 34 pages of evidence to establish, by clear and convincing evidence, not only the grounds for termination but also that it is in the best interests of these children to permanently sever their relationship with their mother. We are mindful of the extraordinary burdens placed on all participants in this system. Given the constitutional rights of the parents in these proceedings, the future placement of the children involved, and the effect such placement will have on their lives, however, we urge the trial court and the parties to more completely develop the evidence at trial, so the appellate record is commensurate with the finality of parental termination.
Applicable Law
Only one predicate finding under section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in a child's best interest. In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003) ; In re A.R.R. , 2018 WL 6517148, at *1. If multiple predicate grounds are found by the trial court, we will affirm based on any one ground supported by sufficient evidence, assuming a proper best interest finding. In re A.R.R. , 2018 WL 6517148, at *1 ; see In re A.A.T. , No. 04-16-00344-CV, 2016 WL 7448370, at *10 (Tex. App.—San Antonio Dec. 28, 2016, no pet.) (mem. op.).
The trial court found Mother's parental rights should be terminated on two statutory grounds, subsections (O) and (P) of section 161.001(b)(1). See TEX. FAM. CODE §§ 161.001(b)(1)(O), (P). Thus, if we determine the evidence is sufficient to support either ground — and that the evidence is sufficient to support the trial court's best interests finding — we must affirm the termination. See In re A.R.R. , 2018 WL 6517148, at *1.
To terminate parental rights based on section 161.001(b)(1)(O), the trier of fact must find by clear and convincing evidence that the parent:
[F]ailed 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 the Department ... for not less than nine months as a result of the child's removal from the parent ... for the abuse or neglect of the child.
TEX. FAM. CODE 161.001(b)(1)(O). Mother does not challenge the fact that the Department removed the children for abuse or neglect or that the Department had temporary managing conservatorship of the children for more than nine months. These unchallenged findings are binding on this court if supported by the record. See In re E.C.R. , 402 S.W.3d 239, 242 (Tex. 2013).
Application
The record supports the unchallenged findings. The Department removed the children in May 2017, which was more than nine months before the August 2018 final hearing. During that time, the Department was the temporary managing conservator for the children. The Department case worker, Dietra Marquez, testified the children were removed because they were left alone at the Haven for Hope shelter. The children were dirty and had been urinating in cups because they were afraid to leave the room. Representatives of Haven for Hope tried to contact Mother, but the attempts were unsuccessful. Thus, the record shows the children were removed for neglect and were in the Department's care for more than nine months. See TEX. FAM. CODE 161.001(b)(1)(O).
The court approved Mother's service plan and ordered compliance with its terms. Mother signed the service plan, and the trial court took judicial notice of its requirements. The service plan required Mother to: (1) engage in visitation with her children; (2) complete parenting classes; (3) submit to a psychological evaluation before beginning individual counseling; (4) refrain from illegal drug use and submit to random drug tests; and (5) maintain stable housing and employment.
The evidence shows Mother did not complete all of the court-ordered services, which provides a basis for termination under subsection (O). See In re I.L.G. , 531 S.W.3d 346, 354 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). Mother was required to attend parenting classes. Mother was twice referred to the VENT Program, which included parenting classes mandated by the service plan. Mother attended a single session and was discharged for non-attendance. Mother testified she did not attend because the instructor continually cancelled classes and she believed she would be able to re-engage at some point. However, the evidence shows Mother signed her service plan in June 2017, yet she did not begin the program until April 2018. She never re-engaged in the VENT Program nor did she complete any other parenting class as required by the service plan.
Additionally, the service plan mandated that Mother not engage in drug use and submit to random drug testing. The evidence shows Mother engaged in drug use, and tested positive for methamphetamine at a March 2018 hair follicle exam. Not long after this exam, Mother began shaving her head, precluding further hair follicle exams. Mother testified she shaved her head because a mental illness causes her to pull her hair out, leaving bald spots. Ms. Marquez said she was aware of Mother's condition, but never saw any bald spots before Mother shaved her head.
Furthermore, the service plan provided that any missed tests would constitute a positive drug test. Mother missed a requested test sometime after July 2018. Mother testified she missed the test because when she arrived at LabCorp, there was no paperwork authorizing the test. Ms. Marquez stated there was no paperwork because Mother appeared the day after the test was scheduled, explaining paperwork is only good for the day the test is actually to take place. Mother stated she did not go on the originally scheduled date because she had to work.
Pointing to the foregoing evidence, Mother argues she established by a preponderance of the evidence that she: (1) was unable to comply with specific provisions of the court-ordered service plan, and (2) made a good-faith effort to comply and her failure to comply was not her fault. See TEX. FAM. CODE § 161.001(d) (stating it is a defense to termination for failure to comply with court order if parent proves by preponderance of evidence that she was unable to comply with specific provision and she made good-faith effort to comply and failure to do so was not her fault). Thus, Mother contends the trial court was precluded from terminating her parental rights based on section 161.001(b)(1)(O). Mother argues her mental health issues precluded her ability to complete all of the requested hair follicle exams. Mother testified she shaved her head in an effort to deal with bald spots resulting from a mental condition that caused her to pull her hair out. This might show an inability to comply with hair follicle tests after March 2018, but it does not explain or excuse prior positive results.
In addition, the evidence relied upon by Mother would excuse only her failure to submit to random drug testing; it would not excuse her failure to complete the mandated parenting classes or the requirement that she remain drug free. We have found no evidence, nor does Mother point to any, regarding her inability to comply with the requirement that she complete the mandated parenting classes. Mother references her mental health issues, but there is nothing in the record to suggest these issues, for which Mother is medicated, precluded completion of her parenting classes. Moreover, the service plan required that Mother not only submit to drug testing, but that she remain drug free. Neither the evidence pointed to by Mother nor any other evidence in the record shows her mental health condition made her unable to comply with the requirement that she not engage in illegal drug use.
Mother refers to completed portions of her service plan, e.g., stable housing, employment, as well as services in which she continued to engage up to the time of the final hearing, including outpatient drug treatment and individual counseling. Even if there is evidence supporting completion or good faith engagement in these services, the evidence still shows an unexcused failure to complete other service plan requirements.
Reviewing the evidence under the applicable standards, we conclude the evidence is legally and factually sufficient to support the trial court's finding that Mother failed to comply with the provisions of a court order establishing the actions necessary for her to obtain the return of her children and that Mother failed to prove by preponderance of evidence that she was unable to comply with specific provisions and she made a good-faith effort to comply and failure to comply was not her fault. See TEX. FAM. CODE §§ 161.001(b)(1)(O), 161.001(d). Having concluded the evidence is sufficient to support the trial court's finding under subsection (O), we need not review the sufficiency of the evidence to support the subsection (P) finding. In re A.V. , 113 S.W.3d at 362 ; In re A.R.R. , 2018 WL 6517148, at *1.
Subsection (P) provides that a parent's rights may be terminated if the parent used an illegal controlled substance in a manner that endangered the health and safety of her child and: (1) failed to complete a court-ordered substance abuse program, or (2) after completion of a program, continued to abuse a controlled substance. Tex. Fam. Code § 161.001(b)(1)(P).
Sufficiency of the Evidence — Best Interests
Applicable Law
In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v. Adams , 544 S.W.2d 367, 371–72 (Tex. 1976). We recognize 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). However, promptly and permanently placing a child in a safe environment is also presumed to be in the child's best interest. TEX. FAM. CODE § 263.307(a). Thus, we also consider the factors set forth in section 263.307(b) of the Code. Id. § 263.307(b). Additionally, evidence that proves one or more statutory grounds for termination may be probative of a child's best interest, but it does not relieve the State of its burden to prove best interest. In re C.H. , 89 S.W.3d 17, 28 (Tex. 2012).
In conducting a best interest analysis, we consider direct evidence, circumstantial evidence, subjective factors, and the totality of the evidence. In re E.D. , 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). Additionally, a trier of fact may measure a parent's future conduct by her past conduct in determining whether termination of parental rights is in the child's best interest. Id. In analyzing the evidence within the Holley framework, evidence of each Holley factor is not required before a court may find that termination is in a child's best interest. C.H. , 89 S.W.3d at 27. Moreover, in conducting our review of a trial court's best interest determination, we focus on whether termination is in the best interest of the child, not the best interest of the parent. In re D.M. , 452 S.W.3d 462, 468–69 (Tex. App.—San Antonio 2014, no pet.).
Application
The Department removed the children from Mother after she left them alone at Haven for Hope. See TEX. FAM. CODE § 263.307(b)(12) (whether child's family demonstrates adequate parenting skills); Holley , 544 S.W.2d at 371–72. When found, the children were dirty and "[w]ere basically hiding in their room," refusing to leave for fear they would be locked out. See TEX. FAM. CODE § 263.307(b)(12) ; Holley , 544 S.W.2d at 371–72. They were urinating in cups to avoid leaving the room. Haven for Hope representatives attempted to contact Mother, but could not reach her. See TEX. FAM. CODE § 263.307(b)(12) ; Holley , 544 S.W.2d at 371–72. Mother stated she left the shelter for a day job, but her car broke down. The evidence suggests — given the children's condition and their need to urinate in cups — that Mother was gone for a significant amount of time without contacting either her children or the shelter. See TEX. FAM. CODE § 263.307(b)(12) ; Holley , 544 S.W.2d at 371–72.
The evidence shows Mother engaged in drug use, testing positive on several hair follicle tests. See TEX. FAM. CODE §§ 263.307(b)(8) (whether there is history of substance abuse by child's family), 263.307(b)(12); Holley , 544 S.W.2d at 371–72. After she tested positive for methamphetamine at a March 2018 hair follicle exam, she began shaving her head, which precluded further hair follicle exams. Mother testified she shaved her head because a mental illness causes her to pull her hair out, but Ms. Marquez stated she never saw any bald spots. See Holley , 544 S.W.2d at 371–72. Sometime after the July 10, 2018 permanency hearing, Mother's outpatient treatment facility requested a drug test, and Mother tested negative.
March 2018 was the last time Mother affirmatively tested positive, but she missed a requested test sometime after July 2018, which qualifies as a positive result. See TEX. FAM. CODE §§ 263.307(b)(8), 264.307(b)(12); Holley , 544 S.W.2d at 371–72. Mother provided an excuse for the missed test, testifying there was no paperwork authorizing the test. See Holley , 544 S.W.2d at 371–72. However, Ms. Marquez testified there was no paperwork because Mother appeared the day after the test was scheduled. See TEX. FAM. CODE §§ 263.307(b)(10) (willingness and ability of child's family to seek out, accept, and complete services and to cooperate with agency's close supervisions); Holley , 544 S.W.2d at 371–72. Mother stated she did not go on the scheduled date because she had to work. See Holley , 544 S.W.2d at 371–72.
During an unannounced visit to Mother's apartment, Ms. Marquez found "a pipe with a plate with very distinguished lines on the plate." See TEX. FAM. CODE §§ 263.307(b)(8), 264.307(b)(12); Holley , 544 S.W.2d at 371–72. The items were found in a closet, and according to Ms. Marquez, the pipe looked as if it could be used for smoking. Mother denied any knowledge of the items and stated she did not have a roommate.
Despite Mother's contention, during that same visit, Ms. Marquez found men's clothing, including underwear, in the apartment. See TEX. FAM. CODE § 263.307(b)(12) ; Holley , 544 S.W.2d at 371–72. Mother stated she had collected the clothes because she thought her children might be able to use them. See Holley , 544 S.W.2d at 371–72. Ms. Marquez also testified it appeared as if people had been sleeping in the twin beds designated for the children. See TEX. FAM. CODE § 263.307(b)(12) ; Holley , 544 S.W.2d at 371–72. The beds were pushed together. A representative for SAMMinistries testified Mother was being evicted from the apartment for, among other things, having unauthorized tenants in the apartment. See TEX. FAM. CODE § 263.307(b)(10) ; Holley , 544 S.W.2d at 371–72. Although the eviction was imminent at the time of trial, the representative testified SAMMinistries would rehouse Mother in a different apartment complex and support her with full rent and utilities. See Holley , 544 S.W.2d at 371–72.
With regard to her service plan, Mother knew the actions she was required to take in June 2017. However, it was not until April 2018 that Mother attended a session of the VENT Program, which including parenting classes mandated by the service plan. See TEX. FAM. CODE §§ 263.307(b)(10), 263.307(b)(11) (willingness and ability of child's family to effect positive changes within reasonable time); Holley , 544 S.W.2d at 371–72. She attended a single session and was discharged for non-attendance. See TEX. FAM. CODE §§ 263.307(b)(10), 263.307(b)(11) ; Holley , 544 S.W.2d at 371–72. Mother also failed to complete her outpatient drug treatment prior to the final hearing. See TEX. FAM. CODE §§ 263.307(b)(10), 263.307(b)(11) ; Holley , 544 S.W.2d at 371–72. She also missed mandated drug tests, shaved her head precluding hair follicle tests, and tested positive on several drug tests. See TEX. FAM. CODE §§ 263.307(b)(8), 263.307(b)(10), 263.307(b)(11) ; Holley , 544 S.W.2d at 371–72.
The evidence shows Mother has housing through SAMMinistries, but has issues with following program rules, resulting in a pending eviction. See TEX. FAM. CODE §§ 263.307(b)(10), 263.307(b)(11) ; Holley , 544 S.W.2d at 371–72. Although Mother will be rehoused in a new apartment complex through the SAMMinistries program, she will need to follow program requirements to maintain her housing, which she was not previously able to do. See In re E.D. , 419 S.W.3d at 620 (holding trier of fact may measure parent's future conduct by past conduct in determining best interest). Mother has stable employment as a notary public and certified tax preparer — she has an associate's degree in accounting — and recently qualified for disability payments due to her "Bipolar with mixed episode III, mania" diagnosis. See TEX. FAM. CODE §§ 263.307(b)(10), 263.307(b)(11) ; Holley , 544 S.W.2d at 371–72. Thus, Mother may be able to provide housing and support for the children, but the evidence suggests she has issues staying within the mandates of her housing program, which prohibited unauthorized tenants. See TEX. FAM. CODE §§ 263.307(b)(10), 263.307(b)(11) ; Holley , 544 S.W.2d at 371–72.
Mother attended visitation with her children, but initially had issues arriving on time. As for the children's desires, the two oldest children testified they want to remain in their current placements. See Holley , 544 S.W.2d at 371–72. E.F., who is in high school, is currently in a supervised independent living program. According to Ms. Marquez, E.F. wants to remain in the program until she graduates from high school and begins college. See Holley , 544 S.W.2d at 371–72. J.P.V., a thirteen-year-old boy, has requested that he be permitted to remain in the care of the Department. See Holley , 544 S.W.2d at 371–72. The two youngest children are in foster care. No evidence was presented as to their conservatorship desires. The Department is exploring potential foster-to-adopt homes. According to Ms. Marquez, all of the children are doing well in their current placements. See Holley , 544 S.W.2d at 371–72.
Based on the relevant Holley factors, the factors set out in section 263.307(b) of the Code, the applicable standard of review, and the evidence, we conclude the trial court could have reasonably determined termination of Mother's parental rights is in the children's best interests. See J.P.B. , 180 S.W.3d at 573 ; H.R.M. , 209 S.W.3d at 108.
CONCLUSION
We hold the evidence is legally and factually sufficient to have permitted the trial court, in its discretion, to conclude:
(1) Mother failed to comply with one or more provisions of her court-ordered service plan, see TEX. FAM. CODE § 161.001(b)(1)(O) ;
(2) Mother failed to prove she was unable to comply with her service plan, made a good-faith effort to comply, and failure to comply was not her fault, see TEX. FAM. CODE § 161.001(d) ; and
(3) termination is in the children's best interests. See id. § 161.001(b)(2).
Accordingly, we overrule Mother's sufficiency complaints and affirm the trial court's termination order.
DISSENTING OPINION
Dissenting Opinion by: Luz Elena D. Chapa, Justice
I respectfully dissent. I would reverse and render an order denying the Department's request for termination because there is legally insufficient evidence that termination is in the children's best interest. I begin, however, with expressing my concerns about the proceedings in this case.
CONCERNING PROCEEDINGS IN THIS CASE
I am encouraged by the shift in making mental health awareness a priority by our two higher courts and state legislature. But I express my concerns to emphasize our work as members of the judiciary and society is far from over when it comes to eliminating the innate bias against those who are mentally ill.
See Tex. Jud. Comm. on Mental Health – About Us Commissioners , http://texasjcmh.gov/about-us/comissioners (last visited May 9, 2019) (noting the commission is co-chaired by Justice Jeff Brown and Judge Barbara Hervey).
A. Although perhaps unintentional, the record discloses an underlying, innate bias against those with mental illness.
As shown by the record, appellant has been medically diagnosed with bipolar disorder that at times causes her to pull out her hair. She explained this condition leaves her with bald spots, so she shaves her head. It is undisputed appellant proactively and effectively manages her condition with medication, counseling, and a therapy dog. But in explaining its decision to terminate appellant's parental rights, the trial court brought attention to appellant's bipolar disorder :
I think the one thing to keep in mind here is there's a lot of things in the law that are significant here. There's a case: In RE A.L.M., 300 S.W.3d 914 that has a quote I think is pretty important.
"The needier the ... child, the more able the parent must be."
In re A.L.M. involved termination of a parent's rights based on "a parent's mental illness or deficiency and the resulting inability to meet the child's mental, physical, and emotional needs." 300 S.W.3d 914, 915 (Tex. App.—Texarkana 2009, no pet.) (citing Tex. Fam. Code § 161.003 ).
The trial court then noted appellant's bipolar disorder and further stated:
There's nothing wrong with that, and the disability she receives and she's managing it. But then it's hard to say that three children should be part of this when they've been through so much.
The shaving of the head. I understand the hair thing, but these things ... affect ... children. I'm looking at [V.J.V.]. And again, I'm reading from the CASA report.
"When his mother shaved her head, it deeply affected him. He could not participate for the first 20 minutes of the visit, because he could not stop crying."
That's the CASA report. These things have [e]ffects on children and best interest. So one would say that you don't have permanency for these children, so why discontinue the relationship with mother.
Well, because I don't know that there will be progression or see any hope for progression . And I have, you know, a 14, 12, and nine year old, and I'm not going to give up on them. (emphasis added).
However, the Department's caseworker Dietra Marquez testified one child takes psychotropic medication but the children have no "specialized medical needs," and there is no evidence showing appellant is not "able" as a parent. It is undisputed appellant made significant strides to manage her bipolar disorder, and her visits with her children "go well" and are "appropriate." The trial court's remarks suggest that merely having bipolar disorder and a shaved head makes a parent less able, makes children "needier," or both, and so much so that depriving a parent and her children of a relationship is warranted.
Marquez also testified at trial:
So my concern would be if something were to happen to the dog, especially because the dog is often left off of the leash when she's on her property, then what happens next? If the dog were to be hit by a car, would she still be able to perform these daily functions and would she be able to care for her children in the absence of a dog?
The Department reiterates this speculative concern in its argument on appeal. The trial court's comments and the Department's lack of understanding raise serious concerns and are inconsistent with the should-be-intended goal of reunification. More importantly, however, innate biases might have played a role in the termination of the appellant's parental rights. See Nicole E. Negowetti, Navigating the Pitfalls of Implicit Bias: A Cognitive Science Primer for Civil Litigators , 4 ST. MARY'S J. LEGAL MAL. & ETHICS 278, 284 (2014) (stating judges are human beings susceptible to having implicit biases).
When a parent with a diagnosed mental health condition undisputedly manages her condition proactively and effectively, the mere existence of the mental health diagnosis should play no role in a trial court's decision to terminate a parent's rights. In re G.C. , No. 02-17-00259-CV, 2018 WL 547784, at *20 (Tex. App.—Fort Worth Jan. 25, 2018, no pet.) (mem. op.) ("[M]ental illness alone is not a basis for terminating the parent-child relationship"). Of course, if a parent does not accept her diagnosis or does not seek treatment, such a refusal may be considered in determining whether the parent–child relationship should be terminated. See, e.g. , TEX. FAM. CODE 161.003. Here, however, the trial court ignored undisputed evidence establishing appellant manages her condition proactively and effectively and it expressly relied on appellant's mental health diagnosis as a reason for terminating her parental rights.
B. The trial court should not have relied on facts not in evidence.
It is gravely concerning that—on the record—the trial court expressly relied on facts not in evidence to terminate appellant's parental rights. The trial court directly read from a CASA report, revealing the trial court considered the statements in the filings for their truth. However, this court has repeatedly stated, and the majority correctly states again, a trial court "may not take judicial notice of the truth of the allegations in its records." In re J.E.H. , 384 S.W.3d 864, 869 (Tex. App.—San Antonio 2012, no pet.). By violating this rule, the trial court denied appellant her clearly established due process rights and impaired the integrity of the court's truth-seeking function. See TEX. R. EVID. 102 ; In re J.A.J. , 243 S.W.3d 611, 616 (Tex. 2007).
When reviewing the sufficiency of the evidence, appellate courts indulge a legal fiction that the factfinder actually considered only the evidence admitted at trial—even when, as here, the record affirmatively shows the factfinder improperly considered facts not in evidence. Cf. In re W.E.R. , 669 S.W.2d 716 (Tex. 1984) (per curiam) (precluding courts of appeals from "look[ing] to any comments that the judge may have made at the conclusion of a bench trial" as forming a basis for the judgment). As I view the record, the only way the trial court could have reasonably reached its decision to terminate appellant's parental rights is by improperly considering the contents of court filings for their truth. It is particularly concerning in this case because other factual allegations in court filings were contradicted by undisputed evidence at trial.
The trial court's express reliance on facts not in evidence underscores the need for better efforts to protect parents' due process rights. In some termination proceedings, such as the underlying case, the trial court must consider evidence and make factfindings on various pretrial matters that significantly overlap with disputed fact issues to be decided at trial. Understandably so, it is challenging for a trial court that has made pretrial factual determinations to disregard all prior proceedings at a trial on the merits. But when a trial court acts as a factfinder at trial and at pretrial hearings involving related factual disputes, the trial court should make extraordinary efforts to consider only the evidence admitted at trial. This challenge was not met in this case.
C. The Department's strongest evidence at trial was inadmissible hearsay.
The strongest evidence presented at trial was that appellant (1) on one occasion a year and a half before trial, left the children unattended at the Haven for Hope shelter; and (2) tested positive for drugs in March 2018. Without the evidence of these two facts, there would be no question that the evidence is legally insufficient to permanently sever the parent–child relationship between appellant and her children.
The only evidence about the children being dirty and urinating in cups at Haven for Hope was the testimony of caseworker Marquez. Marquez's testimony was not based on personal knowledge, but on statements contained in an affidavit sworn to by a different caseworker, Boryana Trautmann. Trautmann's affidavit states "shelter staff informed" her of many of the facts included in the affidavit. The record appears to show Marquez's testimony was hearsay, if not double hearsay. See TEX. R. EVID. 801 – 03. Trial counsel did not object to Marquez's testimony.
During direct examination, Marquez testified appellant's only drug test, a "UA," came back negative, but appellant had missed a random drug test, and hair follicle testing was unavailable because appellant had shaved her head. On cross-examination, appellant's trial counsel elicited Marquez's testimony about the positive hair follicle drug test. Although Marquez's testimony was responsive to the question trial counsel had asked, she did not explain the results and trial counsel did not object to the testimony being hearsay. See id. ; In re K.C.P. , 142 S.W.3d 574, 580 (Tex. App.—Texarkana 2004, no pet.).
D. Conclusion
An extraordinary number of parental termination cases are filed in counties in this court's jurisdiction. These cases are not easy for parents, children, the Department, attorneys, or the courts because these cases involve fundamental rights of parents and important public concerns for child welfare. Although our primary concern is the children's welfare, parental termination cases are not made easier when innate bias negatively influences how some parents are treated in court. Looming deadlines and overcrowded dockets cannot justify shortcuts that undermine the truth-seeking function of our courts. Protecting this truth-seeking function is just as crucial in cases involving a parent who has a mental illness.
INSUFFICIENT EVIDENCE SHOWS TERMINATION IS IN THE CHILDREN'S BEST INTEREST
I generally agree with the majority's recitation of the applicable law. However, I provide additional fundamental principles. First, the standard of review precludes us from disregarding undisputed evidence contrary to the trial court's findings; doing so "could skew the analysis of whether there is clear and convincing evidence." In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002). A factfinder "may not disregard uncontroverted evidence." W. Wendell Hall, Standards of Review in Texas , 29 ST. MARY'S L.J. 351, 482 (1998). Similarly, in reviewing the legal sufficiency of the evidence, we "must consider undisputed or uncontradicted evidence" and cannot "disregard the undisputed evidence." Id. (internal quotation marks omitted). Second, in parts of its analysis, the majority focuses on "conservatorship." But the Department's burden was not to simply prove appellant should not have custody of her children; its heightened burden was to prove, by clear and convincing evidence, appellant should not have any relationship with her children whatsoever. See J.A.J. , 243 S.W.3d at 614–17 (distinguishing conservatorship from termination). The evidence must therefore permit a factfinder to reasonably form a firm conviction or belief that appellant should no longer be in the children's lives as their mother, not merely that appellant should not have custody. See id. at 616.
Third, "[t]ermination is a drastic remedy and is of such weight and gravity," that "termination proceedings must be strictly scrutinized." In re K.M.L. , 443 S.W.3d 101, 112 (Tex. 2014) ; In re G.M. , 596 S.W.2d 846, 847 (Tex. 1980). We must strictly scrutinize whether the evidence is clear and convincing in support of termination. K.M.L. , 443 S.W.3d at 112. Evidence can be "too vague to constitute clear and convincing evidence" to terminate parental rights. See In re C.C., III , 253 S.W.3d 888, 894 (Tex. App.—Dallas 2008, no pet.) ; see, e.g. , In re K.M.J. , No. 04-18-00727-CV, 2019 WL 1459565, at *7–8 (Tex. App.—San Antonio Apr. 3, 2019, no pet. h.) (mem. op.) (holding testimony offered without any factual support was conclusory). Additionally, we cannot rely on evidence that requires speculation or piling inferences upon inferences. See K.M.J. , 2019 WL 1459565, at *7–8 ; San Antonio Credit Union v. O'Connor , 115 S.W.3d 82, 92 (Tex. App.—San Antonio 2003, pet. denied).
The majority primarily relies on the Haven for Hope incident, appellant's drug use, and the housing issue. But, as explained below, the actual testimony is too vague and impermissibly requires speculation and piling inferences upon inferences. I address each of these concerns in turn, and then consider the evidence of the Holley v. Adams factors. 544 S.W.2d 367 (Tex. 1976).
A. The Haven for Hope Incident
The evidence. Marquez testified the reason the children came into the Department's care was because the children were left at Haven for Hope, and they were "very dirty." According to Marquez, the children "basically were hiding in their room, because they would get locked out and [appellant] wasn't around. They were urinating in cups so they would not have to leave the room. They attempted to call [appellant], and no one was able to reach her." Appellant testified she had left the children at Haven for Hope to go to work, but did not make it back in time because her car broke down. Marquez admitted on cross-examination that the Haven for Hope incident occurred "during the investigation stage," so she "did not know whether or not" appellant's explanation was true. She did not dispute appellant's explanation or provide a basis for discrediting appellant's explanation. Thus, appellant's explanation is undisputed.
Analysis. Marquez's testimony is vague and does not support the majority's suggestion that appellant neglected the children. Marquez testified "the children" came into care because "the children" were left alone. She testified only that appellant "wasn't around," but provided no basis to believe she intended to exclude E.F., who was seventeen years old at the time. Thus, assuming the trial court credited this testimony, appellant left the younger children who were thirteen, eleven, and eight with E.F., who was seventeen at the time. No evidence suggests appellant knew E.F. was unable to adequately supervise the three younger children while appellant was at work. Thus, a factfinder could not reasonably conclude appellant neglected the children by leaving them entirely unsupervised or anticipated the children would get "very dirty" and start urinating in cups.
The Department presented no evidence showing the length of time the children were left alone. Appellant's undisputed explanation was that she went to work, her car broke down, and she did not "make it back on time." The majority states the circumstantial evidence of the children being "very dirty" and urinating in cups "suggests" the children were alone for "a significant amount of time." But a factfinder would be forced to speculate as to what length of time "a significant amount of time" was. No evidence provides a basis to suggest the children were left alone for such a long period of time that appellant's explanation could not be credible. Instead, Holley requires us to consider the parent's explanations for their acts and omissions, and our standard of review precludes us from disregarding undisputed evidence. J.F.C. , 96 S.W.3d at 266 ; Holley , 544 S.W.2d at 371–72.
See, e.g. , In re A.G.K. , No. 04-16-00315-CV, 2016 WL 6775590, at *11 (Tex. App.—San Antonio Nov. 16, 2016, no pet.) (mem. op.) (excusing parents' conduct when undisputed evidence provided a reasonable explanation); In re C.T.E. , 95 S.W.3d 462, 464 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (noting appellant gave "undisputed explanation for the assault ... that it resulted from an argument he had with the children's mother who he was trying to prevent from going into a drug place").
In its analysis of the evidence supporting the trial court's finding of a ground to terminate appellant's parental rights, the majority characterizes this evidence as showing "the children were removed for neglect." But while the evidence shows the basis for removal was alleged neglect under subsection (O), the evidence does not show—for purposes of the best interest finding—appellant actually neglected the children or left them alone for an unreasonably long period of time under the circumstances. Cf. Garcia v. State , 367 S.W.3d 683, 689 (Tex. Crim. App. 2012) (holding evidence insufficient to support endangerment of a child when "[n]o evidence show[ed] how long appellant had been outside with the child" in inclement weather). Because Marquez did not dispute appellant's explanation, and no evidence indicates appellant actually neglected the children, the substantive law and our standard of review preclude us from weighing the Haven for Hope incident in favor of termination.
B. Drug Use
The evidence. Marquez testified appellant had a positive hair follicle drug test in March 2018. Marquez did not testify about the particulars of the results. But, as noted above, during cross-examination, appellant answered a question that assumed the results were positive "for meth" without correcting the assumption. Marquez also testified she saw a plate and a "makeshift pipe" in "a closet" in appellant's apartment, the plate had "distinctive lines," and the pipe looked like it could be used for smoking. She further testified appellant had missed one random drug test, and had "shaved her head so no further hair follicles could be done." Appellant denied using drugs and otherwise provided explanations.
Marquez and appellant both testified appellant was in an outpatient drug program. Appellant testified without contradiction that her last appointment for the program was the same day as trial. Marquez testified she was aware appellant was being drug tested as part of her outpatient program, she was aware appellant's drug test two weeks before was negative, and Marquez sent appellant to have UA tests, but Marquez did not know the results of those tests.
Analysis. Based on the positive drug test in March 2018, a factfinder reasonably could have discredited appellant's testimony and explanations about the results and other suggestive evidence of any drug use. However, while the trial court found appellant used a controlled substance in a manner that endangered the children, it is undisputed the children were removed from appellant in 2017. There is no evidence showing appellant appeared to be on drugs during any of her visits with the children, or did anything to endanger the children during those visits. The undisputed evidence establishes appellant's visits "go well" and are "appropriate," and the Department allowed appellant to continue visiting the children after March 2018.
There is also no evidence showing appellant used drugs before the children were removed or in the children's presence. Marquez's testimony about the plate and the pipe is suggestive, but there was no evidence that "testing was conducted to confirm that [the lines] ... [were] in fact an illegal drug." See K.M.J. , 2019 WL 1459565, at *1. Additionally, Marquez did not give the date she found the pipe and plate in appellant's apartment. Without this date, a factfinder would have to speculate as to whether the evidence of the pipe and plate was duplicative of the evidence showing appellant used drugs in March 2018 or the missed drug test sometime after July. Testimony that requires a factfinder to engage in such speculation is not competent evidence of probative force. See id.
Our standard of review also precludes us from disregarding the undisputed evidence that appellant was being drug tested in her outpatient program, had a negative drug test, and the Department made no efforts to determine whether appellant's other drug tests were positive or negative. See J.F.C. , 96 S.W.3d at 266. The majority notes appellant shaved her head, the Department was then unable to conduct hair follicle tests, and appellant "tested negative, but the test was a urinalysis test as opposed to a hair follicle test." The majority suggests hair follicle tests are more effective than urinalysis tests, but no evidence was admitted at trial to support this suggestion. Furthermore, this suggestion gives undue weight to appellant shaving her head because Marquez admitted she sent appellant to have UA tests, but never determined the results of those tests. The majority's suggestion that urinalysis tests were inadequate is not based on the evidence. And, while the majority characterizes the evidence as showing appellant "failed to complete" her outpatient program, the undisputed fact we cannot disregard is that appellant's last appointment to complete her outpatient program was the same day as trial. See id.
Certainly, the evidence of appellant's drug use weighs against appellant. But this is not a case where the evidence shows the parent is drug-addicted or had used drugs around the children or in a manner that endangered them. Thus, given Marquez's admission that she did not determine the result of any of appellant's UA test results, appellant's negative drug test two weeks before trial, and the undisputed evidence that appellant had only one remaining appointment for her outpatient drug program, the evidence of appellant's drug use weighs against appellant moderately, but not heavily. See K.M.J. , 2019 WL 1459565, at *7.
C. Stable Housing
The evidence . Marissa Mueller, a case manager for SAMMinistries' housing program, testified appellant had "been given some lease violations and a 30-day notice to vacate" by the end of the month, and appellant "received violations in regards to her dog, and also having unauthorized tenants." Mueller testified, "We are rehousing her in another complex." She also testified appellant had "permanent supportive housing" assistance that provides "full rent and utilities while [appellant's] in the program." Mueller did not testify about any of the program's requirements. She testified she did not "ever find out who the unauthorized tenants were." Marquez testified about her observations of appellant's apartment, but the trial court sustained an objection to that testimony. Appellant explained she collects discarded clothing when other tenants move out, she keeps the clothes for the children, and a woman named Cindy helps her clean the apartment and dishes.
Analysis . The majority states, "Despite Mother's contention, ... Ms. Marquez found men's clothing, including underwear, in the apartment.... Ms. Marquez also testified it appeared as if people had been sleeping in the twin beds designated for the children ... The beds were pushed together." But the trial court excluded all of this evidence:
Q And to your knowledge, does mom have a roommate?
A She states that she does not. However, there was men's clothing found in one of the rooms. It looked like people had been sleeping in the beds that were designated for the children. The twin beds were pushed together –
MS. HANSON: Objection, nonresponsive.
THE COURT: Just be careful. It's getting a little narrative. Sustained .
(emphasis added). This court has held that in a bench trial, "testimony ... not admitted as evidence before the trial court ... cannot be considered in our sufficiency review." EZ Auto, L.L.C. v. H.M. Jr. Auto Sales , No. 04-01-00820-CV, 2002 WL 1758315, at *4 (Tex. App.—San Antonio July 31, 2002, no pet.) (mem. op.) (op. on reh'g).
Without this evidence, the only evidence raising a concern about appellant's housing is that appellant received a "notice to vacate" due to lease violations of having unauthorized tenants and her therapy dog. The majority states, "A representative for SAMMinistries testified Mother was being evicted from the apartment for, among other things, having unauthorized tenants in the apartment.... the eviction was imminent at the time of trial." The majority also states there is a "pending eviction," suggesting there is a pending forcible detainer proceeding or a writ of possession has been issued. See BLACK'S LAW DICTIONARY 594 (8th ed. 2006) ("eviction" n. ). There is no evidence of a "pending eviction." And, although the majority states an "eviction was imminent," the undisputed evidence establishes SAMMinistries was rehousing appellant before the deadline for her to vacate.
Mueller testified appellant received a "notice to vacate" for having a dog and "unauthorized tenants." This is evidence of alleged lease violations, not evidence of actual lease violations. Appellant's lease was not admitted into evidence. No evidence provided any factual details underlying the allegations of lease violations for "unauthorized tenants." These vague allegations would be insufficient to support terminating appellant's lease under a "preponderance of the evidence" standard. See Moon v. Spring Creek Apts. , 11 S.W.3d 427, 433–34 (Tex. App.—Texarkana 2000, no pet.). Thus, these vague allegations are necessarily insufficient to support terminating appellant's parental rights under a "clear and convincing evidence" standard. See In re A.C. , 560 S.W.3d 624, 630 (Tex. 2018) ("[A] finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.").
There is no evidence showing the actual basis for the notice to vacate. Although the evidence supports a reasonable inference that the notice to vacate was based on the stated lease violations because Mueller testified there were no other violations, it is unclear whether appellant received the notice solely for having a therapy dog, solely for having unauthorized tenants, or a combination of both. The majority states "the evidence suggest she has issues staying within the mandates of her housing program." But because Mueller's testimony is so vague, I would not go so far as to suggest appellant cannot maintain stable housing because her disability required her to have a therapy dog, or to suggest appellant displayed a propensity for committing lease violations.
Furthermore, our standard of review precludes us from disregarding the undisputed evidence that appellant has permanent housing assistance through a SAMMinistries program that pays her entire rent and all utilities. See J.F.C. , 96 S.W.3d at 266. The majority suggests appellant is at risk of losing her housing assistance through SAMMinistries, stating appellant "has issues with following program rules," "will need to follow program requirements to maintain her housing," and "has issues staying within the mandates of her housing program , which prohibited unauthorized tenants" (emphasis added). But Mueller never testified about the requirements of the SAMMinistries housing program. She testified appellant had "lease violations," providing circumstantial evidence about the lease requirements. Without any evidence explaining the program or giving further details, the evidence permits an equally probable inference that SAMMinistries simply chose to rehouse appellant rather than dispute the notice to vacate. Mueller's testimony therefore requires speculation that appellant "has issues" with following lease or program requirements. See K.M.J. , 2019 WL 1459565, at *7.
Because appellant is moving to a new apartment complex, the factor of "stable housing" technically weighs against appellant. But no evidence shows appellant's new apartment would be inappropriate for the children, and undisputed evidence establishes SAMMinistries was continuing to provide appellant with housing assistance, and fully pay her rent and utilities. Thus, as a pure technicality, the "stable housing" factor weighs in favor of termination because appellant was about to move from one apartment to another. But given the lack of factual detail in Mueller's testimony, and the undisputed evidence that appellant was to continue receiving full housing assistance through SAMMinistries after she moved, the weight of this factor is very slight.
D. Children's Desires
The evidence. Marquez testified J.P.V. "requested to stay in care" and E.F. "stated that she is willing to stay in the SIL program." Marquez did not testify what the "SIL program" is.
Analysis . The only evidence relevant to the children's desires is Marquez's above-quoted statements. There is no evidence showing when E.F. and J.P.V. expressed these desires. This evidence is also mitigated by the undisputed evidence that, although the children were living at the Haven for Hope shelter when they were removed, at the time of trial, appellant had permanent housing assistance and was living in an apartment. See In re J.I.T. , No. 01-17-00988-CV, 2018 WL 3131158, at *17 (Tex. App.—Houston [1st Dist.] June 27, 2018, pet. denied) (mem. op.) (considering undisputed facts that mitigate evidence in support of a finding). And, there is no evidence of the other two children's desires, rendering Marquez's testimony insufficient to support this factor. In re K.F. , 402 S.W.3d 497, 506 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (holding this factor does not weigh in favor of termination when evidence shows only one child's desires, but not others).
We also cannot disregard the undisputed evidence that the children have a good relationship with appellant and appellant's visits with the children "do go well" and are "appropriate." And while the evidence of E.F.'s and J.P.V.'s desires to remain at their current placements relates to their primary residence, an issue of managing conservatorship, there is no evidence showing they had no desire to have any relationship with appellant, which is the relevant inquiry. See J.A.J. , 243 S.W.3d at 614–17. This factor does not weigh in favor of termination. See id. ; M.C. , 482 S.W.3d at 688–89 ; K.F. , 402 S.W.3d at 506.
E. Current and Future Emotional and Physical Needs
There is no evidence showing the children have any unique emotional or physical needs. See Holley , 544 S.W.2d at 371–72. Instead, the Department's caseworker testified the children have no specialized medical needs, but J.P.V. is taking a single prescription. This factor does not weigh in favor of termination.
F. Current and Future Emotional and Physical Danger
Notably, there is a total absence of evidence that appellant ever physically or emotionally abused the children or subjected them to any physical or emotional danger. There is also no evidence that allowing appellant access to the children would place the children in emotional and physical danger. Although there is evidence suggesting appellant had used drugs several months before trial, there is no evidence appellant ever used drugs before the children were removed, attended a visit under the influence of drugs, or was using drugs at the time of trial. This factor does not weigh in favor of termination. See id.
G. Parental Abilities of the Individuals Seeking Custody
There is no evidence that anyone other than appellant and the Department was seeking custody of the children. See id. Marquez expressed no concern about appellant's parental abilities. Appellant testified she had a good relationship with the children, and she described the children's relationship with one another and what they each wanted to be when they grew up. And while there is evidence showing the children's needs were being met in foster care, there is no evidence showing the children's needs would not be met in appellant's care. Our standard of review precludes us from disregarding undisputed evidence that in the year and half before trial, the Department had not yet found possible adoptive parents for the children, and appellant's visits with the children "go well" and are "appropriate." See id. Although Marquez testified appellant arrived late, she provided no details of how often appellant arrived late, or whether appellant was two minutes late or an hour late. Given the vagueness of Marquez's testimony and undisputed evidence favoring appellant, this factor weighs slightly against termination.
H. Programs Available to Assist Appellant
Marquez testified appellant did not complete her parenting, domestic violence, and anger management courses, and the majority weighs this against appellant. While this evidence might support a finding of a ground for termination under subsection (O) for failing to comply with court-ordered provisions of a service plan, there is no evidence showing appellant lacked parenting skills, engaged in domestic violence in any of her relationships, or had anger management issues. I respectfully disagree with the majority's suggestion that it is against the children's best interest if a parent has yet to complete courses, which the parent has shown no signs of needing.
What is more significant is that undisputed evidence establishes appellant successfully took advantage of programs she did need. The evidence shows appellant had used drugs several months before trial, was living at the Haven for Hope shelter when the children were removed, and has bipolar disorder. But undisputed evidence establishes appellant proactively and effectively manages her bipolar disorder with medication, attends counseling, and has a therapy dog; appellant sought and was approved for disability income; appellant had successfully engaged in outpatient drug treatment up until the time of trial and had her last outpatient drug appointment the same day as trial; and appellant obtained permanent housing assistance through SAMMinistries. See J.F.C. , 96 S.W.3d at 266. Because undisputed evidence shows progression and appellant successfully took advantage of programs available to assist her where she actually needed improvement, this factor weighs moderately against termination. See Holley , 544 S.W.2d at 371–72.
I. Plans for the Children
Appellant testified she wanted the children to have her as their mother because she was "the only one they have." The Department's plans for the children are to keep J.P.V. in a group foster home, and to continue seeking foster–adopt homes for the two younger children. There was no evidence that the Department found foster parents willing to adopt any of the children, or that finding foster parents was even likely. Undisputed evidence establishes the Department did not find potential adoptive families for any of the children. See J.F.C. , 96 S.W.3d at 266. Because the evidence establishes the Department sought to deprive the children of a relationship WITH the only parent they would likely ever have, and keep the children in foster care without parents until they aged out, this factor weighs slightly against termination.
J. Another Factor—Financial Support
It is undisputed appellant has an associate's degree in accounting, has been a licensed tax preparer for several years, renews her license every year, has several clients, earns between $ 350 to $ 400 a week in income, has no rent or utilities to pay, and gave money to the children during visits. This undisputed evidence shows appellant has the ability and willingness to provide financial support to the children, whether they are in her care or in foster care. See J.I.T. , 2018 WL 3131158, at *18 (considering undisputed evidence of parent's employment and education weighing against termination). This factor weighs slightly against termination. See id.
K. Conclusion
There is no evidence of several of the most significant Holley factors. No evidence shows the children's desires as to the specific issue of termination. There is no evidence of actual neglect. There is no evidence of abuse. There is no evidence of endangerment. There is no evidence that appellant could not meet the children's needs. Appellant's parental rights appear to have been terminated because:
• Appellant went to work on Mother's Day in 2017, her car broke down, and as a result, her children were left alone for some unspecified amount of time, became "very dirty," and urinated in cups;
• the Department removed the children the following day based on a concern of neglect and appellant was required to comply with her family service plan requirements;
• after the children were removed, appellant used methamphetamine in March 2018, and likely used drugs sometime after July 2018, and violated her family service plan by not fully completing all of her courses;
• Appellant got a therapy dog that, together with a dispute with her landlord over whether she had an unauthorized tenant, caused her housing assistance program to relocate her to a different apartment; and
• Appellant has bipolar disorder and shaved her head.
Considering the heightened standard of proof required to protect appellant's constitutional rights, and the severe lack of evidence that is not conclusory, vague, or speculative, I would hold that the evidence does not permit a reasonable factfinder to form a firm belief or conviction that termination of the parent–child relationship between appellant and her children is in the children's best interest. Even without the evidence against the finding, given the heightened standard of proof designed to protect parent's fundamental rights, this evidence is legally insufficient to support permanently severing a parent's relationship with her children. See J.F.C. , 96 S.W.3d at 266 ; Holley , 544 S.W.2d at 371–72.
And, the undisputed evidence establishes the children are being deprived of their mother, who they have known their entire lives and with whom they have a good relationship. The children are facing the prospect of spending up to a decade in foster care without ever being adopted, and losing the financial support their mother is willing and able to provide.
The fact the children's mother has bipolar disorder is of no consequence here.
Because there is legally insufficient evidence showing termination of appellant's parental rights is in the children's best interest, I would reverse and render an order denying the Department's request for termination. I would not disturb the order appointing the Department as the children's managing conservator. Because the majority affirms the order of termination, I respectfully dissent.