In the Interest of M.A.T.T., a Child v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00294-CV

IN THE INTEREST OF M.A.T.T., a Child

From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2024PA00066
Honorable Kimberly Burley, Judge Presiding

Opinion by: Lori Massey Brissette, Justice

Sitting: Irene Rios, Justice
Lori Massey Brissette, Justice
H. Todd McCray, Justice

Delivered and Filed: December 10, 2025

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

This case involves a final order that terminates Father’s 1 parental rights, names the
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Department as the child’s sole managing conservator, and names Mother and Foster Mother as

possessory conservators. Foster Mother and the child, through her attorney and guardian ad litem,

assert that Mother’s rights should have been terminated or, in the alternative, that Foster Mother

should have been named the child’s managing conservator. Father asserts that termination of his

1
To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to the child’s
mother as “Mother,” to the child’s father as “Father,” and to the child using her initials or as “the child.” See TEX.
FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). In this case, as the foster mother intervened seeking
conservatorship and is an appellant in this matter, we refer to her as Foster Mother.
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parental rights is not in the best interest of the child. While we affirm the trial court’s rulings as to

termination with regard to both parents’ parental rights, we hold the trial court abused its discretion

in naming the Department as the sole managing conservator of the child and remand for further

proceedings in light of our decision.

Procedural Background

On January 16, 2024, Mother was arrested on an active warrant for violation of community

supervision, based on a prior conviction for possession of a controlled substance. The Department,

after locating the child, filed its Original Petition for Protection of a Child, for Conservatorship,

and for Termination in Suit Affecting the Parent-Child Relationship. 2 1F

The Department was named temporary managing conservator of the child, and the child

was placed in the home of Foster Mother, where she remains today. A family service plan was

created for both parents and made an order of the court. Later, the child’s Foster Mother intervened

asserting that parental rights should be terminated as to both parents and seeking to adopt or, in the

alternative, for conservatorship of the child.

The final trial was originally set in December of 2024. However, it was reset to January of

2025 because Mother had just been released from incarceration a few days prior to the December

trial date. At the January trial setting, the Department again sought additional time for Mother to

complete services, and the trial was reset, over objection, for February of 2025. At the same time,

the trial court entered an Order Retaining Suit on Court’s Docket and Setting Court Proceeding

Dates. 3 In that Order, the trial court found that Mother had made a good faith effort to successfully
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complete the service plan, including a court ordered substance abuse treatment program, but

2
The Department did not elaborate at trial as to where the child was when Mother was arrested, when the petition was
filed, or how the child came into the Department’s care.
3
This Order was rendered on January 16, 2025 but was not signed until March 25, 2025, after the trial of the matter
had concluded but before the final order was rendered.

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needed additional time. The Order also stated that “on completion of the services plan the Court

intends to order the child returned to the parent.”

At the February trial setting, Mother again asked for more time to complete her services so

that she could maintain her parental rights. But the Department opposed continuance and changed

its position to recommend termination of both parents’ rights. Father sought only possessory

conservatorship. Foster Mother, as stated above, sought to adopt or, in the alternative, to be named

as the child’s managing conservator. The child, through her attorney and guardian ad litem,

requested that parental rights be terminated and to remain with Foster Mother.

After the nonjury trial concluded in February of 2025, the matter was taken under

advisement, and on April 18, 2025, the Associate Judge signed her report setting forth her findings

of fact and conclusions of law as to all issues before her. Specifically, the trial court found the

Department made reasonable attempts to reunite the child with her parents. The trial court found

there was clear and convincing evidence sufficient to support termination of Father’s rights under

Texas Family Code section 161.001(b)(1)(O) and (P), and that such termination is in the best

interest of the child. But, rather than terminate Mother’s parental rights, the trial court found that

the Department should be named sole managing conservator of the child and that Mother and

Foster Mother should be named possessory conservators. The trial court ordered the child to

remain in Foster Mother’s home but provided that Mother could continue visits. Further, the trial

court found that Mother should pay $100 per month in child support and follow a post-trial service

plan.

On June 20, 2025, a Final Order was rendered, signed by the Associate Judge, setting forth

the same rulings as those set forth in the report dated April 18, 2025. Father, Foster Mother, and

the child, through her attorney and guardian ad litem, all filed timely notices of appeal.

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Facts

Mother was incarcerated from the time the child was placed in the Department’s care,

because of Mother’s arrest, until she was released from incarceration on December 6, 2024. The

child was around eight months old when the arrest occurred and at the time of trial was almost two

years old. Mother acknowledged a long history of drug use and a criminal record as well as a

history with the Department, with three prior referrals being ruled out and one resulting in a

“reason to believe” for neglectful supervision of another child. 4 Father, too, has a long history of
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drug use and criminal activity. Thus, the Department testified of concerns regarding the parents’

drug use, domestic violence, and Mother’s mental health.

Mother

While incarcerated, a family service plan was created and made an order of the court.

Pursuant to that plan, Mother was required to complete a parenting class and a domestic violence

class, complete a psychological evaluation and follow all recommendations, complete a substance

abuse assessment and follow all recommendations, and find stable employment and housing.

Mother completed the parenting class and provided a certificate of completion to the Department.

While Mother claims she completed a domestic violence class while incarcerated, 5 she did not 4F

provide proof of same to the Department. Mother testified she had separated from Father and was

two sessions shy of completing counseling at the Battered Women’s Shelter in San Antonio when

she was arrested.

4
That child currently resides with her paternal grandparents and Mother does not have custody.
5
The Department caseworker testified there was a concern about domestic violence between Mother and Father but
the parents were not involved with each other at the time of removal and remain separated today.

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Since her release in December of 2024, Mother has resided at Austin Transitional Center,

a halfway house. In December, she requested her social security card and birth certificate, both of

which are required to obtain a valid identification card and employment, and she has researched

housing options in San Antonio. But, as of the trial date, two months post release, she had not

found a job or permanent residence. The case manager at the halfway house confirmed her efforts

to obtain identification and testified that it sometimes takes months for a person to get their social

security card and gain employment after release from incarceration. The case manager also

confirmed Mother’s attempts to find housing and that there are available “mommy and me” rooms

at Oxford House in San Antonio.

Mother testified that, during her incarceration, she participated in an anger management

class, a class on Addiction and Families, a 12-step class, counseling sessions, and a program called

Changes, which focused on improving her thinking patterns, decision making, and relationships.

She also attends Alcoholics Anonymous and Cocaine Anonymous three times a week at the

halfway house where she resides. As part of the requirements of residing at the halfway house and

of being on parole, Mother is subject to random drug testing and has been clean since her release.

She also participates in a program called ANEW, which her case manager at the halfway house

testified is a parole program focused on mental health. Further, Mother provided proof of sign-in

sheets documenting her attendance at weekly support groups. She has not, though, completed her

court-ordered substance abuse assessment or provided proof of a psychological evaluation. Her

case manager confirmed she is compliant with all programs at the halfway house, many of which

address the same issues as the family service plan.

Although Mother was released on December 6, 2024, she did not contact the Department

until the end of December, and she participated in only two visits with the child before trial

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commenced. Both Mother and the Department caseworker testified that it took a while for Mother

to obtain a phone to facilitate virtual visits.

Father

Father was incarcerated due to a charge of possession of a controlled substance and was

not aware of the child’s existence until he was released from jail in April of 2023. And, like Mother,

Father also acknowledged his long history of drug use and criminal activity. A service plan was

created and made an order of the court which required him to complete parenting classes, complete

a psychological evaluation and follow all recommendations, complete a substance abuse

assessment and follow all recommendations, submit to random drug testing, and demonstrate the

ability to maintain stable employment and safe housing for the child.

Father completed the psychological evaluation and substance abuse assessment, as well as

parenting classes. But, he did not complete a domestic violence class or the court-ordered

substance abuse treatment program. He testified that he had a hard time following the online class

and asked to be treated in an inpatient program but was told he did not qualify. The Department

disputed that Father requested additional treatment, with the caseworker testifying that Father

chose not to attend either inpatient or outpatient treatment. Father testified that he is homeless,

unstable, and if the child were returned to him he would not have a place to keep and care for her.

The Department testified that Father failed to comply with numerous requests for drug tests and

that he admitted on several occasions that he continues to use illegal drugs. Father admitted to

continued usage at trial. Finally, Father was arrested in August of 2024, during the pendency of

this termination proceeding, for possession of a controlled substance.

Even so, Father demonstrated his desire to parent, engaging with the child in weekly visits,

missing only a couple throughout the entire year. According to the Department, the visits were

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appropriate and a bond developed between Father and the child. Father, however, has no home, no

job, and no social support system to assist him in caring for the child and getting and staying clean.

Maternal Grandmother

The child’s maternal grandmother has been involved with the case from the beginning and

has attended hearings throughout. Originally, she was living in Ohio when she reported Mother’s

arrest to the Department because she did not know the whereabouts of the child. Based on the

grandmother’s desire to take the child, the Department, early on, performed a background check

and a home study on the home of the maternal grandmother, both of which came back approved.

But the child was not placed with her. The trial court heard evidence that Mother voiced concerns

to the Department about doing so. Mother stated she asked the Department to place the child with

her mother. But Foster Mother testified, without objection, that she was told otherwise.

In the early fall of 2024, the child’s maternal grandmother moved from Ohio to San Antonio

and, soon after, met with the caseworker to discuss taking the child. But, a new home study was

not requested until December 2024 when the second caseworker took over the handling of the file.

Grandmother admitted the Department had some concerns with the second home study,

specifically that she owned a firearm and the home was not childproofed. Grandmother testified

that she had addressed both issues. A dispute arose as to whether the grandmother refused

background checks on persons living in her home, to which grandmother responded by testifying

that she has lived alone for years.

Because maternal grandmother lived in Ohio until September 2024, she first met the child

four weeks before trial in a supervised visit and has had only four 15-minute visits. She testified

she was not allowed to see the child before then. She admitted her relationship with her daughter

has been tumultuous but testified they are in regular contact now. She testified of her desire to

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ensure the child is with family and that the child has an opportunity to know her older sister, who

also lives in San Antonio with her own grandparents. In fact, she said she would be willing to adopt

the child if parental rights were terminated.

Foster Mother

The child has been placed in intervenor Foster Mother’s home since the beginning of the

case and remains there. Foster Mother is a nurse practitioner and, with steady employment, is

financially secure. The caseworker testified there have been no concerns with that placement. In

fact, observations of the child with Foster Mother show a strong bond and a loving home. Foster

Mother testified that her bond with the child is indistinguishable from that of a biological mother

and that the child refers to her as “mama.”

Foster Mother testified that the child was small for her age but appeared to be in good

health apart from recurrent ear infections. Foster Mother was able to ensure the child received the

appropriate care, including surgical ear tubes.

Foster Mother’s sister is also an approved caretaker through 1Hope for Kids, the foster care

agency through which Foster Mother is licensed. To engage with the child, Foster Mother’s sister

also went through background checks, CPR training, and completed required courses. Foster

Mother testified that her extended family, as well, is available to support her.

Final Order Naming Department as Sole Managing Conservator, with Mother and Foster
Mother as Possessory Conservators

While the trial court clearly entered a final order in this case, it also—at the same time—

ordered the Department to create a post-trial service plan, ordered Mother to comply with same,

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and set a permanency hearing to review Mother’s compliance. 6 The trial court also stated, “The
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Department . . . may reserve the right to use any removal evidence or evidence from this trial, if

properly presented, at a modification trial.” Foster Mother and the child contend that, by doing so,

the trial court was attempting to provide Mother additional time to comply with her service plan,

with the ultimate goal of reunification in the event Mother was able to do so and with the intent to

reconsider termination, on the same evidence, if she was not. They urge that the trial court, in

essence, intended to circumvent the deadline imposed by Texas Family Code section 263.401.

They further contend the trial court erred by not terminating Mother’s parental rights and by

naming the Department, not Foster Mother, as the child’s managing conservator.

The Trial Court’s Authority Under Chapter 263

Under Texas Family Code section 263.401, a trial court can provide to a parent additional

time to comply with a service plan, but that section by its very terms only applies to pretrial

extensions of jurisdictional authority. Section 263.401(a) provides that a case is automatically

dismissed if the trial is not commenced within one year from the date the Department was named

temporary managing conservator, unless the court has granted an extension under section

263.401(b). TEX. FAM. CODE §263.401(a). An extension can be granted under section 263.401(b)

if the court finds that “extraordinary circumstances necessitate the child remaining in the

temporary managing conservatorship of the department and that continuing the appointment of the

department as temporary managing conservator is in the best interest of the child.” TEX. FAM.

CODE § 263.401(b) (emphasis added). Thus, while section 236.401 provides for the opportunity to

extend the dismissal date of the matter, and continue the Department’s role as temporary managing

6
Specifically, the trial court ordered Mother continued visits with the child twice per week virtually transitioning to
biweekly in person, ordered her to continue drug testing, and ordered that Mother’s service plan was to be revised to
include a parenting program, psychological evaluation and treatment, and a requirement that she be able to
demonstrate “stability.”

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conservator, it does not contemplate continued jurisdiction over the Department’s petition

requesting termination of Mother’s rights after the entry of a final order. TEX. FAM. CODE §

263.401. It is axiomatic that issues resolved by final order are just that—resolved.

Likewise, the court’s actions do not comport with Texas Family Code section 236.403

which would have allowed the court to order an extension of time for a monitored transitional

return of the child to Mother. That section also expressly allows for the entry of a temporary order

that provides a parent additional time to complete a service plan where the court has ordered either

the return or a scheduled transition of the child back to the parent. TEX. FAM. CODE § 263.403.

But, as stated above, here the trial court entered a final order, not a temporary one. And, there is

no indication that the trial court was ordering a monitored return of the child. Instead, it is clear

from the record that the trial court, despite entering a final order, was seeking to determine later

whether the child should be returned or Mother’s rights terminated.

Thus, the only statute that could apply here is Texas Family Code section 263.404, entitled

“Final Order Appointing Department as Managing Conservator Without Terminating Parental

Rights.” This statute allows for the trial court to “render a final order appointing the Department

as managing conservator of the child without terminating the rights of the parent of the child if the

court finds that: (1) appointment of a parent as managing conservator would not be in the best

interest of the child because the appointment would significantly impair the child’s physical health

or emotional development; and (2) it would not be in the best interest of the child to appoint a

relative of the child or another person as managing conservator.” TEX. FAM. CODE § 263.404. Here,

the trial court found that it was in the best interest of the child for the Department to be named as

the sole managing conservator. And, as required by Section 263.404, the trial court made the

following finding:

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The Court finds that the appointment of a parent or both parents as managing
conservator would not be in the best interest of the child [M.A.T.T.] because the
appointment would significantly impair the child’s physical health or emotional
development; and it would not be in the best interest of the child to appoint a relative
of the child or another person as managing conservator.

Regardless of the trial court’s intent, 7 by entering a final order that terminates only Father’s
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parental rights and names the Department the child’s sole managing conservator with Mother and

Foster Mother as possessory conservators, the trial court rejected the Department’s request to

terminate Mother’s parental rights.

Because it had the authority to enter such an order under Texas Family Code section

263.404, and because the trial court made the requisite findings, we are left with evidentiary

challenges brought by Foster Mother and the child as to the trial court’s actions. Specifically, they

challenge the evidentiary support for the trial court’s refusal to terminate Mother’s rights, making

her a possessory conservator, and the trial court’s finding that it would not be in the best interest

to name Foster Mother as the child’s managing conservator.

Trial Court’s Termination of Father’s Rights

While the trial court chose not to terminate Mother’s rights, it did terminate the rights of

Father. Father challenges that order, asserting that, while there may be evidence in the record

supporting termination under Texas Family Code subsection 161.001(b)(1), the record does not

support a determination that termination of his rights is in the best interest of the child under

subsection 161.001(b)(2).

7
There is no doubt the trial court can later terminate Mother’s rights on the same evidence as that presented in the
original trial in this matter. See TEX. FAM. CODE §161.004(b). But, it may do so only on the subsequent filing of a new
petition to terminate, not by continuing jurisdiction of the original matter. See TEX. FAM. CODE 161.004(a)(1); In re
K.G., 350 S.W.3d 338, 353 (Tex. App.—Fort Worth 2011, pet. denied).

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Standard of Review

“A parent’s rights to the ‘companionship, care, custody, and management’ of his or her

children are constitutional interests ‘far more precious than any property right.’” M.P. v. Texas

Dept. of Family & Protective Servs., No. 03-22-00163-CV, 2022 WL 4281617, *6 (Tex. App.—

Austin Sep. 16, 2022, pet. denied) (quoting Santosky v. Kramer, 455 U.S. 745, 758–59 (1982));

see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). An order terminating a parent’s rights to their

child is irrevocable and harsh. In fact, it has been called the “death penalty” of custody matters. In

re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (J. Lehrmann, concurring). Because of the

constitutional import of the rights in question, any petitioner seeking to terminate a parent’s rights

to their child must prove the basis for same by a meeting a heightened burden of proof—that being

clear and convincing evidence. In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002). “‘Clear and

convincing evidence’ means the measure or degree of proof that will produce in the mind of the

trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”

TEX. FAM. CODE § 101.007.

Here, because Father only challenges the best interest finding, we review the record to

determine whether any reasonable factfinder could form a firm belief or conviction that

termination was in the best interest of the child. J.F.C., 96 S.W.3d at 266; TEX. FAM. CODE §

101.007. In doing so, we apply well-established standards of review. See, e.g., In re H.R.M.,

209 S.W.3d 105, 108 (Tex. 2006) (conducting a factual sufficiency review); In re J.P.B.,

180 S.W.3d 570, 573 (Tex. 2005) (conducting a legal sufficiency review). In a legal sufficiency

review, we look at all the evidence in the light most favorable to the finding and assume the

factfinder resolved all disputed facts in favor of its finding, disregarding all evidence a reasonable

factfinder could have disbelieved. J.F.C., 96 S.W.3d at 266. Further, in a bench trial, the trial court

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is the sole judge of the credibility of witnesses and the weight to be given their testimony. See In

re J.F.-G., 627 S.W.3d 304, 312, 317 (Tex. 2021). This is because “the trial judge is best able to

observe and assess the witnesses’ demeanor and credibility, and to sense the ‘forces, powers, and

influences’ that may not be apparent from merely reading the record on appeal.” In re O.L.W., No.

04-24-00208-CV, 2024 WL 3588395, at *2 (Tex. App.—San Antonio July 31, 2024, pet. denied)

(quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.)). We,

therefore, defer to the trial court’s factual determinations. J.F.-G., 627 S.W.3d at 312; see also In

re R.R.A., 687 S.W.3d 269, 279 n.50 (Tex. 2024) (“Reviewing courts, however, must defer to the

factfinder’s judgment as to the credibility of the witnesses and the weight to give their testimony,

including reasonable and logical inferences from the evidence.”).

Analysis of Best Interest

In determining whether the evidence supports a best interest determination, we review the

Holley factors as well as the factors set out in Texas Family Code section 263.307(b). Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors are not exhaustive. C.H., 89 S.W.3d at

27. “The absence of evidence about some of these considerations would not preclude a factfinder

from reasonably forming a strong conviction or belief that termination is in the child’s best interest,

particularly if the evidence were undisputed that the parental relationship endangered the safety of

the child.” Id. In analyzing these factors, we must focus on the best interest of the child, not the

best interest of the parent. See in re J.P.H., No. 04-23-00131-CV, 2023 WL 5280376, at *3 (Tex.

App.—San Antonio Aug. 16, 2023, pet. denied) (citing Dupree v. Tex. Dep’t of Protective & Regul.

Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ)).

Evidence that proves one or more statutory grounds for termination may also constitute

evidence illustrating that termination is in the child’s best interest. C.H., 89 S.W.3d at 28 (holding

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the same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but

such evidence does not relieve the State of its burden to prove best interest). “A best-interest

analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence

as well as the direct evidence.” See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San

Antonio 2013, pet. denied). “A trier of fact may measure a parent’s future conduct by his past

conduct and determine whether termination of parental rights is in the child’s best interest.” Id.

Here, the evidence presented to the trial court raised the following concerns: (a) Father

failed to take any action to provide a more stable or safe home for the child or to obtain

employment; and (b) while Father demonstrated a desire to remain in the child’s life, making some

headway on the service plan and maintaining regular visits with the child, he admitted he remained

unstable and continued to use illegal drugs. Ultimately, the Department sought termination, and it

was granted by the trial court, under Texas Family Code subsections 161.001(b)(1)(O) and (P).

1. Desires of the Child

The Department elicited no testimony regarding the child’s desires. “When children are too

young to express their desires, the fact finder may consider that the children have bonded with the

foster family, are well-cared for by them, and have spent minimal time with a parent.” In re J.M.G.,

608 S.W.3d 51, 57 (Tex. App.—San Antonio 2020, pet. denied) (quoting In re S.J.R.-Z., 537

S.W.3d 677, 693 (Tex. App.—San Antonio 2017, pet. denied)). Here, the child has bonded with

Father during short weekly visits but has also bonded with Foster Mother, as any young child

would do with their primary caretaker. See In re I.D.G., 579 S.W.3d 842, 853–54 (Tex. App.—El

Paso 2019, pet. denied) (“Evidence that a child is well-cared for by the foster family, is bonded to

the foster family, and has spent minimal time in the presence of a parent is relevant to the best

interest determination under the desires of the child factor.”).

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2. Emotional and Physical Needs, Age and Physical and Mental Vulnerabilities

The child in this case has no special needs.

3. Emotional and Physical Dangers, History of Physical Abuse or Substance
Abuse, and Magnitude of Harm

Father admitted at trial that he continues to use illegal substances and is unstable in that he

has no home or employment. Further, while he has made great strides to check the boxes of items

on the family service plan, he did not complete the domestic violence class—which was of

particular concern given the domestic violence allegations relating to his relationship with Mother.

He also did not complete either inpatient or outpatient drug treatment, as recommended. See In re

O.N.H., 401 S.W.3d 681, 687 (Tex. App.—San Antonio 2013, no pet.) (“Non-compliance with a

service plan is probative of a child’s best interest.”).

4. Parental Abilities

Father demonstrates the desire to parent, through his efforts in short, weekly visits. And,

he has taken steps to complete aspects of the family service plan. But, in the end, his continued

use of illegal drugs and his inability to maintain employment or obtain housing impacts his ability

to put his child’s needs above his own and precludes him from demonstrating an ability to truly

parent.

5. Programs Available and Social Support System

The evidence demonstrated that Father has little to no social support or family support.

6. Plans for the Child

Father testified he had no ability to provide stability for the child in the event of a return.

7. Stability of the Home

Father testified he has no stable housing and no plans to obtain same.

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8. Acts or Omissions and Excuses

The record is clear, from Father’s own testimony, that he has failed to address his substance

abuse, continues to use actively, and has been unable to obtain housing or employment.

9. Frequency and Nature of Out-of-Home Placement

The child has been placed with Foster Mother since she came into the Department’s care.

This placement has been appropriate, stable, and loving, as discussed below.

10. Results of Psychiatric, Psychological, or Developmental Evaluations

The record does not demonstrate a concern with regard to Father’s mental health. And, in

fact, he did complete a psychological evaluation as requested.

11. Willingness and Ability to Complete Counseling and Cooperate with the
Department

Father demonstrated a desire to cooperate with the Department and a desire to complete

services. But even he admitted he was simply unable to do the things necessary to establish his

ability to parent this child in a safe, stable home unencumbered by his continued use of illegal

drugs.

Conclusion of Best Interest Analysis

Having reviewed the record and considered all the evidence under the appropriate standard

of review and given that these factors weigh in favor of termination, we conclude the trial court

could have reasonably formed a firm belief or conviction that termination of Father’s parental

rights was in the child’s best interests. See TEX. FAM. CODE § 161.001(b)(2); H.R.M., 209 S.W.3d

at 108; J.P.B., 180 S.W.3d at 573. Accordingly, we affirm the trial court’s order of termination of

Father’s rights.

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Trial Court’s Decision Not to Terminate Mother’s Rights

Standard of Review and Applicable Law

It is rare to review on appeal a trial court’s refusal to terminate a parent’s rights. But, when

that occurs, the standard of review is clear. M.P., 2022 WL 4281617, at *6; see also Burns v. Burns,

434 S.W.3d 223, 226–27 (Tex. App.—Houston [1st Dist.] 2014, no pet.). When reviewing the legal

sufficiency of evidence supporting the trial court’s denial of termination, a matter on which the

Foster Mother and/or the Department had the burden of proof by clear and convincing evidence,

we will only reverse where the evidence establishes, as a matter of law, all vital facts supporting

the grounds for termination. See M.P., 2022 WL 4281617, at *6; City of Keller v. Wilson, 168

S.W.3d 802, 827–28 (Tex. 2005). “Evidence is conclusive only if reasonable people could not

differ in their conclusions.” City of Keller, 168 S.W.3d at 816. Further, in determining how a

reasonable person would view the evidence, we must consider whether a factfinder would be

required to, as a matter of law, form “a firm belief or conviction” that termination must result. TEX.

FAM. CODE § 101.007.

While, to terminate Mother’s rights, the Department and/or Foster Mother were required

to prove a ground for termination under Texas Family Code section 161.001(b)(1) and prove

termination is in the best interest of the child under section 161.001(b)(2), we need only address

best interest, as it is dispositive. See M.P., 2022 WL 4281617, at *6 (citing In re A.V., 113 S.W.3d

355, 362 (Tex. 2003)). “[T]here is a strong presumption that the best interest of a child is served

by keeping the child with a parent.” In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (citing TEX. FAM.

CODE § 153.131(b)). “And because of the strong presumption in favor of maintaining the parent-

child relationship and the due process implications of terminating a parent’s rights to her minor

child without clear and convincing evidence, ‘the best interest standard does not permit termination

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merely because a child might be better off living elsewhere.’” In re D.L.W.W., 617 S.W.3d 64, 81

(Tex. App.—Houston [1st Dist.] 2020, no pet.) (quoting In re J.G.S., 574 S.W.3d 101, 121–22

(Tex. App.—Houston [1st Dist.] 2019, pet. denied)). As this Court has recognized, in a suit to

terminate a parent’s rights, the burden is “not to simply prove [Mother] should not have custody

of her child[],” but “to prove, by clear and convincing evidence, that it is not in the child[]’s best

interest for [her] to have any legal relationship with her whatsoever.” In re K.N.J., 583 S.W.3d 813,

827 (Tex. App.—San Antonio 2019, no pet.) (citing In re J.A.J., 243 S.W.3d 611, 614–17 (Tex.

2007) (distinguishing conservatorship from termination)).

Just as we did above, we look to the Holley factors when reviewing a trial court’s best

interest determination. Holley, 544 S.W.2d at 372; see also In re A.C., 560 S.W.3d 624, 631 (Tex.

2018); In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012). This list is not exclusive or exhaustive, and

not every factor must be proved to find termination is in the child's best interest. C.H., 89 S.W.3d

at 27.

Analysis of Best Interest

1. Desires of the Child

The Department elicited no testimony regarding the child’s desires. “When children are too

young to express their desires, the fact finder may consider that the children have bonded with the

foster family, are well-cared for by them, and have spent minimal time with a parent.” J.M.G.,

608 S.W.3d at 57 (quoting S.J.R.-Z., 537 S.W.3d at 693). Here, the child has bonded with Foster

Mother, as any young child would do with their primary caretaker. See I.D.G., 579 S.W.3d at 853–

54 (Tex. App.—El Paso 2019, pet. denied) (“Evidence that a child is well-cared for by the foster

family, is bonded to the foster family, and has spent minimal time in the presence of a parent is

relevant to the best interest determination under the desires of the child factor.”). While Mother

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had little opportunity to visit with the child during the proceeding, due to her incarceration, she

had begun visits prior to trial.

2. Emotional and Physical Needs, Age and Physical and Mental Vulnerabilities

The child in this case has no special needs.

3. Emotional and Physical Dangers, History of Physical Abuse or Substance
Abuse, and Magnitude of Harm

Mother’s drug use is of concern, but she has been clean and seems to be in strict compliance

with rules of parole and of the halfway house in which she resides with regard to the counseling

and drug testing. Further, she is actively engaged in support groups and programs designed to

change her decision making. While Mother cannot show proof that she completed a domestic

violence class, the evidence demonstrates that she is no longer in the relationship with Father,

which drove the concern about domestic violence.

4. Parental Abilities, Programs Available, and Social Support System

The record is void of any evidence of Mother’s parenting abilities with regard to this child,

as she has not had the opportunity given her arrest, incarceration, and the pending proceeding. As

to her other child, while Mother does not have managing conservatorship of her child, her rights

have not been terminated. The evidence did demonstrate that Mother is actively engaged in various

programs and support groups to address her issues and to make the very real change necessary for

her to parent this child.

5. Plans for the Child and Stability of the Home

Mother testified that she would like to move back to San Antonio and that there is a

“Mommy and Me” room available at an organization that could support her getting back on her

feet.

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6. Acts or Omissions and Excuses

Mother has a long history of drug use but has been clean since her release from

incarceration. While Mother has not satisfied all requirements of the family service plan, there is

evidence that she attempted to address the issues raised in the service plan through other programs.

7. Frequency and Nature of Out-of-Home Placement

The child has been placed with Foster Mother since she came into the Department’s care.

This placement has been appropriate, stable, and loving, as discussed below.

8. Results of Psychiatric, Psychological, or Developmental Evaluations

Mother testified she has engaged in multiple psychological evaluations, yet none were

produced. Even so, she testified and her caseworker at the halfway house confirmed that she is

engaged in a program that seeks to address mental health. She also testified she had maintained

her medication and had an appointment scheduled with a psychiatrist.

9. Willingness and Ability to Complete Counseling and Cooperate with the
Department

Mother demonstrated a desire to cooperate and to engage in services focused on the issues

raised by the Department.

Conclusion of Best Interest Analysis

While there is evidence in the record that demonstrates Mother’s failure to comply with

some of the requirements of the service plan, as well as a history of drug use, we cannot hold that

a factfinder viewing the record before us would be required, as a matter of law, to form a firm

belief or conviction that termination of Mother’s rights was in the child’s best interest. See TEX.

FAM. CODE § 101.007. We, likewise, cannot hold that the evidence supporting the trial court’s

decision not to terminate was so contrary to the overwhelming weight of the evidence as to be

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clearly wrong or unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). For those reasons, we

affirm the trial court’s decision not to terminate the parental rights of Mother.

Trial Court’s Decision to Name the Department as Managing Conservator

In the alternative, Foster Mother and the child, through her attorney and guardian ad litem,

contend the trial court erred by naming the Department, and not Foster Mother, as the child’s sole

managing conservator. Conservatorship determinations are not subject to a heightened standard of

review, as are termination decisions. Instead, we review a conservatorship determination only to

determine whether the trial court abused its discretion, reversing only if the decision is made

without reference to guiding rules or principles, that is, if the decision is arbitrary and

unreasonable. See J.A.J., 243 S.W.3d at 616; In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort

Worth 2010, no pet.). “An abuse of discretion does not occur when the trial court bases its decisions

on conflicting evidence,” nor does an abuse of discretion occur so long as there is some evidence

of substantive and probative character to support the trial court’s decision. M.M.M., 307 S.W.3d at

849 (citing In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding). But, while we keep

in mind that the trial court is in a better position to decide conservatorship because “it faced the

parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims

made by each parent,” where there is no evidence supporting the trial court’s decision, or where

the trial court erred in its application of its discretion, we will reverse. In re J.R.D., 169 S.W.3d

740, 743 (Tex. App.—Austin 2005, pet. denied); Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex.

App.—San Antonio 2007, no pet.).

The Family Code provides that a “court may render a final order appointing the department

as managing conservator of the child without terminating the rights of the parent of the child” if it

finds: “(1) appointment of a parent as managing conservator would not be in the best interest of

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the child because the appointment would significantly impair the child’s physical health or

emotional development; and (2) it would not be in the best interest of the child to appoint a relative

of the child or another person.” See TEX. FAM. CODE § 263.404(a) (emphasis added).

The trial court’s final order makes these findings in a single conclusory sentence. However,

we do not find in our review of the record any evidence supporting the second finding that “it

would not be in the best interest of the child to appoint a relative of the child or another person.”

Id. The parties presented no evidence depicting Foster Mother or the maternal grandmother as

“incapable of adequately exercising conservatorship over the child[,] [n]or did they present

evidence touching upon the impact, if any, that their appointment as [] managing conservator

would have on the child’s best interest.” In re N.A.O., No. 07-21-00247-CV, 2022 WL 518429, at

*3 (Tex. App.—Amarillo Feb. 18, 2022, no pet.). As in N.A.O., the parties at trial “were focused

on the termination of parental rights” rather than “who would serve as the child’s managing

conservator if complete termination never occurred.” Id. Because the trial court lacked the requisite

evidence to support the second finding, the trial court’s decision to appoint the Department as

M.A.T.T.’s sole managing conservator “constituted an abuse of discretion.” Id. We therefore

reverse that decision and remand for the trial court to reconsider conservatorship of the child. Id.

at *4 (reversing portion of judgment appointing Department managing conservator and remanding

for further proceedings).

Conclusion

While we affirm the trial court’s rulings terminating Father’s parental rights and denying

the termination of Mother’s parental rights, we reverse and remand the trial court’s conservatorship

findings and remand for further proceedings in accordance with our decision.

Lori Massey Brissette, Justice

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