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Opinion issued December 21,
2006

In The

Court of
Appeals

For
The

First
District of Texas

NO. 01-04-01232-CV

NO.
01-04-01233-CV

NO.
01-05-00124-CV

NO.
01-05-00126-CV

NO.
01-05-00127-CV

ERICKA SHANETTE
COLBERT, Appellant

V.

DEPARTMENT OF FAMILY
& PROTECTIVE SERVICES, Appellee

On Appeal from the
314th District Court

Harris County,
Texas

Trial Court Cause
Nos. 1996-43960, 2002-25084,

2004-03601J,
2003-04414J, & 2003-14864

O P I N I O
N

Appellant, Ericka Shanette Colbert,
appeals five orders terminating her parental rights to her seven children,
T.J.C. and T.D.C. (the twins), and D.N.C., T.L.J., T.B.J., E.D.C., and
J.D.M (the five older children).
(1) In three issues, appellant challenges (1) the legal and
factual sufficiency of the evidence to support the trial
court's finding that she knowingly placed or allowed the twins to remain
in conditions or surroundings that endangered their physical or emotional
well-being, (2) the legal sufficiency of the evidence to support the
finding that the termination of parental rights was in the best interest
of the twins, and (3) the factual sufficiency of the evidence to support
the findings that the termination of parental rights was in the best
interest of all the children. We reverse the order relating to the twins
and render judgment in appellant's favor. We reverse the orders relating
to the five older children and remand those cases to the trial court.

Background Facts

In April 2003, appellant was living in a
three-bedroom house with her five children, ten-year-old D.N.C.,
eight-year-old J.D.M.,
(2) six-year-old E.D.C., five-year-old T.L.J., and
three-year-old T.B.J. The children's maternal grandmother, JoAnn Colbert
(the grandmother), and the grandmother's boyfriend, Kenneth Newman, also
lived in the home. In early April, Trenton Jackson, the father of T.L.J.
and T.B.J., moved into the household. On or about April 3, Jackson brought
T.J., his three-year-old daughter by another woman, into the home to
visit. On April 4, Jackson "spanked" or "whipped" T.J. with a leather belt
for wetting her pants. On April 5, Jackson again "whipped" T.J., this time
for defecating in her pants. In the early evening of April 5, T.J. was
found unconscious, and someone called 9-1-1. T.J. was taken to the
hospital by ambulance, and Jackson was arrested and charged with injury to
a child. T.J. died on April 9, and an autopsy showed that the cause of
death was a blunt-force head injury. In April 2004, Jackson was found
guilty of injury to a child and was sentenced to life in prison.

In May 2003, the Department of Protective
and Regulatory Services, the predecessor of the Department of Family and
Protective Services ("DFPS"), took possession of appellant's five children
and filed a petition for protection of a child, for conservatorship, and
for termination of appellant's parental rights with respect to each of her
five children.
(3) The petition also
sought termination of the parental rights of each of the children's
fathers.
(4) As grounds for the termination of appellant's rights, the
petition recited subsections (1)(A)-(G) and (J)-(S) and (2) of section
161.001 of the Family Code.
(5) DFPS did not remove the children from the home at that
time.
(6)

Jackson was
out of jail on bond while he awaited his trial, and DFPS had told
appellant not to allow Jackson to be around the children. However,
appellant did not believe that Jackson's actions had caused T.J.'s death,
and she let Jackson move back into the house. DFPS later learned that
Jackson was living in the house and removed the children from appellant.
DFPS placed J.D.M with his paternal grandfather and the other children
with the grandmother, who, along with Newman, still lived in appellant's
house. Appellant moved out of the house, stayed with a cousin, and visited
her children during the day.

After DFPS
took custody of the children, The Children's Crisis Care Center (the CCCC)
did a family evaluation, during which appellant revealed that the
grandmother had a history that included drug convictions, that she was
currently on parole, and that she no longer used drugs and had made a
better life for herself. DFPS learned that the grandmother also had
convictions for prostitution and burglary, and that Newman had convictions
for aggravated robbery, breaking and entering, and possession of cocaine.
In December 2003, DFPS took possession of the four children and put them
in substitute care. J.D.M. remained with his grandfather. At the time of
trial, the two boys were in the same foster home and the two girls were
each in different foster homes.

DFPS
offered various services to appellant and her family as a part of DFPS's
permanency planning. Appellant participated in therapy, parenting classes,
and anger management classes and was allowed supervised visits with the
children for one hour every two weeks. Appellant attended all the family
visits allowed by DFPS and made all her court appearances.

On January
30, 2004, appellant gave birth to T.D.C. and T.J.C., whose father was
Jackson. In April 2004, DFPS removed the two-and-one-half-month-old twins
from appellant's home. DFPS filed a petition for protection,
conservatorship, and termination of parental rights with respect to the
twins. The five cases, which included all seven children, were tried
together in November 2004.

The Evidence

1.
Appellant

At her
trial in November 2004, appellant testified that she saw Jackson spank
T.J. only one time--with a belt on April 5.
(7) Appellant further testified that she bathed T.J. after the
spanking and told Jackson that there were better ways to discipline a
child. Appellant said that, after bathing T.J., she left the house and
returned one and one-half to two hours later. Appellant testified that
when she returned home, the ambulance had gone and Jackson was sitting in
a police car.

2. The
Therapist

Brenda
Hornaday, the therapist who treated four of the five older children
beginning in about August 2003, testified that she visited with the
children in appellant's home weekly and that her primary focus with the
children was behavior modification. She said that the house was orderly,
but that there was chaos. She testified that there were a lot of people in
the house and that children were always present. She said that the
grandmother allowed her to conduct the therapy in the grandmother's
bedroom. Hornaday testified that, based on her visits, she could not
assess whether the home environment was conducive to the children's
return. She said that she had no opinion regarding the termination of
appellant's parental rights. She thought that the children would be able
to deal with never going back to their mother. She said that the children
needed consistency, stability, structure, and patience and were getting
some of those things at home, but that they need all of those things.

Hornaday
testified that all the children were very much bonded with their mother
and that they loved Jackson. She said that two of the children told her
that they got "whippings," but did not say by whom, and she did not ask.
She was not able to address the severity of the whippings, because the
children did not talk about that. She testified that the children would
need continuing therapy, and that, if they were returned to their mother,
Hornaday would continue to treat them. She also stated that, if stability,
consistency, patience, and structure could prevail in the chaos in
appellant's home, it would be in the best interest of the children to
return them to their mother. If not, returning them would not be in their
best interest. She stated that she did not have sufficient information on
appellant to assess whether appellant could develop the needed attributes.
She knew that family visitations were scheduled every two weeks, but she
had never observed one. In response to a hypothetical situation in which a
mother had one hour to visit with all her children, she responded that it
was possible that one child might feel neglected.

3. The
Grandfather

Kenneth
Williamson, J.D.M.'s paternal grandfather, testified that J.D.M. had been
living with him for about a year and had previously lived with him from
the ages of five months to eight or nine years. He testified that J.D.M.
lived with him because Williamson did not like the atmosphere at
appellant's home, with its "[i]n and out traffic," which he suspected was
drug trafficking, although he could not be sure. He said that appellant
visited J.D.M. "two, three, four times at the most" and that J.D.M. spent
some weekends with appellant. He testified that J.D.M. saw appellant as a
mother figure and that the two had a close bond. He opined that appellant
loved all her children, but made bad choices. He said he would not have
concerns if J.D.M. went back to appellant's home, but would have concerns
if the home had the same environment as before. He had attended the family
visits and thought that appellant treated all the children the same.

4. The
Guardian Ad Litem

David
Cooney, the children's guardian ad litem through Child Advocates, had been
involved in the case since August 2003. He testified that he visited the
home before the children were removed and had concerns about the presence
of Kenneth Newman, the grandmother's boyfriend, in the home because of his
criminal record. Cooney also testified that he had concerns about the
grandmother's extensive criminal history. He further testified that, in
December 2003, he recommended to the court that the children be removed
from the home because of his concerns about appellant's minimizing
Jackson's role in the death of T.J. and appellant's failure to acknowledge
her own responsibility to protect T.J. or to admit the severity of T.J.'s
bruises. However, he testified that, if appellant had recognized that
Jackson was responsible for T.J.'s death, he would not have changed his
mind about termination.

Cooney felt
that the 28 months of services appellant received after the death of her
infant son in 1998 had been ineffective because she had another child
after those services had been completed. However, he denied holding the
birth of that child against her, but explained that he saw a pattern in
her life of choosing men who wound up in prison. He testified that the
initial goal of Child Advocates in this case, like that of DFPS, was
family reunification, but that goal was changed in December 2003 to
reunification/adoption when they discovered that Newman was still living
in the house. However, Cooney could not recall telling appellant that
Newman should move out, and the record does not reveal how or when
appellant was told that Newman could not live in the home.

Cooney
testified that, during the family visits, which were customarily one hour
long, appellant gave most of her time to the twins; the other five did not
get equal time and would play with each other, sit by themselves, or play
games. He stated that he thought that appellant could ask for more time
and that she did ask for and receive an extra hour to visit T.L.J. when he
was in the hospital. He said he thought that the children love appellant,
but that they don't show affection as he thinks children would. He also
stated that he did not know whether it is normal for a mother to spend
more time with babies than with older children.

Cooney
testified that, when he visited the children in appellant's home, they
were exuberant and hard to settle down. In his opinion, appellant could
not give the structure that they needed, and he had not seen that she had
the will to change. He further testified that, since their placement in
substitute care, the children's school work had improved and that he
believed termination of appellant's parental rights was in the best
interest of the children.

5. The
Caseworker

Adrienne
Aiken, the DFPS caseworker, testified that the goal for services changed
from reunification to adoption first with the twins in the spring of 2004
shortly after they were removed from appellant's home on April 15. The
decision was formally made at a meeting of the Permanency Planning Team
(PPT) in May. She further testified that the goal for all the children
changed to adoption in June based on incidents over the period of
Jackson's trial and appellant's minimization of both Jackson's and
appellant's roles in the death of T.J.
(8) Aiken testified that comments appellant made in the spring
of 2003 to DFPS were contradictory to statements she made during Jackson's
criminal trial in April 2004. Aiken stated that she had not seen a great
deal of progress in appellant's recognizing her role in what happened to
T.J. Aiken stated that she believed that there was "overwhelming evidence"
to show that T.J. was abused in appellant's presence and that appellant
failed to be protective. She said that appellant's belief that Jackson was
not responsible for T.J.'s death affected appellant's parenting skills
because it affected her ability to be protective of her children. However,
Aiken also testified that if, just before the twins were removed,
appellant had conceded that Jackson had killed T.J., Aiken would still
recommend termination of appellant's parental rights.

Aiken
testified that appellant's rights should be terminated because Aiken
believed that all the children had been abused and neglected--physically
abused and neglected and emotionally neglected. She stated that she could
see the results of that abuse and neglect in the children's behavior, such
as the way they socialize and respond to people and the language they use,
telling teachers to "Kiss my butt" and using "more graphic language." As a
further example, she said that T.L.J. was hospitalized for threatening to
kill a child at school. But she also testified that when someone talked to
T.L.J. about the threat, he did not know that "killing" meant what had
happened to T.J., and, according to Aiken, he was "horrified" that he had
said that to someone.

Aiken also
testified that she had been at all of appellant's family visits with the
children and observed that there was not a "big bond" with the children
and not a "lot of nurturing" by appellant. Aiken stated that, when she
asked appellant to give special attention to E.D.C., appellant did not do
so. The twins got almost all the attention. She testified that she
believed that termination of appellant's rights was in the best interest
of the children because she believed that the children deserved an
opportunity for permanency, stability, and consistency in their lives. She
also stated that she believed the children were adoptable. She said that
she was not disputing that appellant had completed the services offered to
her.

Aiken
testified that, although appellant had made all the family visits and
court appearances, she had not done everything she was asked to do.
According to Aiken, appellant had not obtained appropriate housing, and
Aiken had not seen proof that appellant had a job and was making the wages
she claimed. Aiken said that the problem with the house appellant was
currently living in was that T.J.'s death had occurred there and the
children should not be living in that house. When asked whether Aiken had
told appellant that, if appellant got other housing, it would change
Aiken's opinion about termination, Aiken responded, "When the plan was
given to Miss Colbert that she signed, it was - - that's what it said."

The
attorney ad litem for the children asked Aiken how he could guarantee that
the children would get to see each other if appellant's parental rights
were terminated. Aiken testified that the children could visit while they
were in foster care and said, "And who is to [say] that somebody will not
adopt all of them?" She further testified that "we don't know that they're
going to be adopted in the homes that they're in particularly."

6. The
Grandmother

The
grandmother testified that the children had plenty of food, were
well-clothed, and were disciplined by taking away privileges. She said
that she did not spank the children, but disciplined them in the same way
as appellant. She said that she would be willing to move out of the house
if it would help appellant keep the children.

7.
Kenneth Newman

Kenneth
Newman, the grandmother's boyfriend, testified that he had lived in
appellant's house one or two years and had moved out in January 2004.
(9) He testified that appellant was not at the house when an
ambulance was called for T.J. and that she had been gone about two or
three hours. He further testified that, when appellant left the house,
T.J. was all right. He said that, after appellant left, he saw Jackson go
into the room where T.J. was, heard Jackson spanking or beating T.J., and
heard T.J. crying. Newman said he did not interfere because Jackson had
said he would discipline his child the way he wanted to.

Newman also
testified that he never saw appellant whip the children. She disciplined
them by sending them to their room or restricting their access to
television or their bicycles. Newman admitted that he had convictions for
the offenses of aggravated robbery, possession of drug paraphernalia, and
criminal trespass. He also admitted that he had used illegal drugs, but
said that he did not do so in the house.

8.
Other Evidence

The signed
Family Service Plan in the record shows, as one of four goals, that
"Ericka Colbert will maintain housing that is safe and free of
environmental hazards." In another section, it elaborates: "Ericka Colbert
will locate and maintain appropriate housing." The plan does not indicate
that appellant's three-bedroom home was unsafe or inappropriate, nor does
it indicate that finding other housing was a condition of retaining her
parental rights. Moreover, a February 2004 "Permanency Plan and Permanency
Progress Report," which was filed with the trial court, stated, "Erika
Colbert has located and maintained employment and has appropriate housing.
. . . Ms. Colbert has employment and has provided CPS with a statement of
earnings."

Aiken's
testimony that appellant did not give additional attention to E.D.C. as
requested was contradicted by Aiken's "CPS Monthly Summary/Assessment" for
September 2004. Her notes for September 20, 2004 state, "Ms. Hornaday
asked if [caseworker] could speak with mother about giving attention to
[E.D.C.]." Aiken's notes for September 28, 2004 state, "[Mother] gave more
attention to E.D.C. and held him on her lap for a few minutes."

The Orders

In all five
cases, the trial court entered a order terminating appellant's parental
rights to her children. Each order also terminated the father's parental
rights, but those terminations are not challenged in these appeals.
Because both the mother's and father's parental rights were terminated,
the trial court appointed DFPS as the sole managing conservator of the
children.

With
respect to appellant, each order provided as follows:

The Court
finds by clear and convincing evidence that termination of the
parent-child relationship between ERICKA SHANETTE COLBERT and the [child
or children], the subject of this suit is in the [child or children's]
best interest.

Further,
the Court finds by clear and convincing evidence that ERICKA SHANETTE
COLBERT has:

knowingly
placed or knowingly allowed the [child or children] to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the [child or children], pursuant to § 161.001 (1)(D)
of the Texas Family Code[.]

Appellant
challenges the legal and factual sufficiency of the evidence to support
these findings.

Standard of Review

"The
natural right that exists between parents and their children is one of
constitutional dimensions." In re J.W.T., 872 S.W.2d 189, 194-95
(Tex. 1994) (quoting Wiley v. Spratlan, 543 S.W.2d 349,
352 (Tex. 1976)). A parent's right to "the companionship, care, custody
and management" of her children is a constitutional interest "far more
precious than any property right." Santosky v. Kramer, 455 U.S.
745, 758-59, 102 S. Ct. 1388, 1397 (1982) (quoting Stanley v.
Ill., 405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1972)). "Due process
requires that the State support its allegations by at least clear and
convincing evidence" to reduce the risk of erroneous termination.
Id., 455 U.S. at 747-48, 102 S. Ct. at 1391-92; In re
B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003). Therefore, in a case
terminating parental rights, we strictly scrutinize the proceedings and
strictly construe the law in favor of the parent. Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985).

There is a
strong presumption that it is in the best interest of the child to keep
custody in the natural parent. In re K.C.M., 4 S.W.3d 392, 395
(Tex. App.--Houston [1st Dist.] 1999, pet. denied), disapproved on
other grounds, In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
DFPS has the burden to rebut this presumption by clear and convincing
evidence. Id. To be clear and convincing, the proof must produce
in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established. Tex. Fam. Code Ann. §
101.007 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 264 (Tex.
2002). The distinction, often fine, between a legal-sufficiency and a
factual-sufficiency review lies in how the evidence is viewed. In re
J.F.C., 96 S.W.3d at 266. In reviewing for legal sufficiency, we must
look at all the evidence in the light most favorable to the finding to
determine whether the evidence is such that a factfinder could reasonably
have formed a firm belief or conviction that the finding was true.
Id. We assume that the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so. Id.
We disregard evidence that a reasonable factfinder could have disbelieved,
but we do not disregard undisputed facts that do not support the finding.
Id.

In a
factual-sufficiency review, we consider the entire record to determine
whether a factfinder could reasonably form a firm belief or conviction
about the truth of the State's allegations. In re C.H., 89 S.W.3d
at 28. If, in light of all the evidence, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is
so significant that a factfinder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient. In
re J.F.C., 96 S.W.3d at 266. If a court of appeals determines that
the evidence is factually insufficient, it should detail in its opinion
why it has concluded that a reasonable factfinder could not have credited
disputed evidence in favor of the finding. Id. at 267.

Grounds for Termination

To
terminate the parent-child relationship, a court must find by clear and
convincing evidence that the parent has committed one of the acts listed
in section 161.001(1) of the Family Code and that termination is in the
best interest of the child. See Tex. Fam. Code Ann. § 161.001(1),
(2) (Vernon Supp. 2006). The failure to prove either of these elements
will prevent termination of a parent's rights. See In re U.P.,
105 S.W.3d 222, 229 (Tex. App.--Houston [14th Dist.] 2003, pet. denied)
("Proof of one element does not relieve petitioner from establishing the
other."). "[T]he best interest standard does not permit termination merely
because a child might be better off living elsewhere. Termination should
not be used to merely reallocate children to better and more prosperous
parents." In re D.M., 58 S.W.3d 801, 814 (Tex. App.--Fort Worth
2001, no pet.).

1.
Conditions or surroundings relating to the twins

In her
first issue, appellant challenges the legal and factual sufficiency of the
evidence to support the trial court's finding that she "knowingly placed
or knowingly allowed the twins to remain in conditions or surroundings
which endanger the physical or emotional well-being of the children" under
section 161.001(1)(D) of the Family Code. Appellant argues that subsection
(1)(D) requires the child to have actually been in conditions or
surroundings that threaten the child and that there is no evidence that
the twins were living in such conditions. Appellant also argues that
Jackson's presence in appellant's home eight months before the twins were
born cannot be the legal basis for the twins' removal from her custody.

We agree.
There is no evidence in the record to establish that the environment in
appellant's home posed a danger to the twins. See In re A.B., 125
S.W.3d 769, 775 (Tex. App.--Texarkana, 2003, pet. denied) ("Under this
section, we look to see if the environment itself poses a danger to the
child's physical or emotional well-being."). Appellant testified that DFPS
did not visit the home before taking the twins. That testimony is
uncontested. Therefore, DFPS had no basis on which to claim that the home
environment posed a danger to the twins.

Although
the grandmother was a part of that environment, and both Aiken and Cooney
made it clear that they did not think she should be with the children,
their opinions were not based on any evidence of harm or danger that she
posed. Rather, they were based on the fact of the grandmother's past
criminal record and did not take into account that there was no evidence
of current illegal activity and that she was a source of financial and
moral support for appellant. Cooney's child-advocate reports dated
February 24, 2004, July 22, 2004, and November 16, 2004 stated "There are
no present indications that Joann Colbert is currently involved with
drugs." Furthermore, appellant's statement to the interviewer for the
CCCC's family evaluation "that since her mother has been released from
prison, she earned a GED, goes to Church, has obtained employment and no
longer uses drugs" and "that her mother has changed and made a better life
for herself" is uncontested.

Aiken and
Cooney also objected to the grandmother's relationship with Newman, who
may or may not have lived with appellant and the grandmother for the two
and one-half months between the twins' birth and their removal from the
home. Newman had lived with the grandmother and appellant for one to two
years, and, although he admitted to drug use, he testified that he did not
use drugs at the home. No evidence contradicts this testimony.

Aiken
testified to the following reasons for taking the twins into custody: (1)
appellant's previous history with DFPS; (2) the fact that the five older
children were in custody; (3) appellant's testimony in the Jackson trial
which, according to Aiken, showed that appellant misstated to DFPS the
truth of what happened to T.J.; and (4) the fragility of the babies. These
reasons are not related to the environment in the home when the twins were
removed and therefore cannot support termination under subsection (1)(D).

DFPS does
not respond to appellant's arguments under her first issue. Instead, DFPS
urges that, because the trial court did not file findings of fact
separately, as required in rule 299a of the Texas Rules of Civil
Procedure, this Court must affirm the judgment if any legal theory pleaded
by DFPS is supported by the evidence.
(10)

We rejected
this same argument by DFPS in Cervantes-Peterson v. Texas Department
of Family & Protective Services, No. 01-05-00307-CV, 2006 WL
2195241, at *5 (Tex. App.--Houston [1st Dist.] Aug. 3, 2006, no pet.). In
Cervantes-Peterson, we pointed out that a trial court's
recitation in the judgment of its ground for termination of parental
rights is not a fact-finding that is prohibited under rule 299a of the
Texas Rules of Civil Procedure. Id. at *5 (citing In re
A.I.G., 135 S.W.3d 687, 693-94 (Tex. App.--San Antonio 2003, no
pet.). The trial court in the instant cases, as in
Cervantes-Peterson and A.I.G., was simply stating the
grounds for termination of parental rights, as required by section 161.206
of the Family Code.
(11) Accordingly, we overrule DFPS's issue.

Here, there
is no evidence favorable to the trial court's finding under subsection
(1)(D). In fact, there are undisputed facts that are against the
finding--the failure of DFPS to visit the home before deciding to remove
the twins; the report stating, "There are no present indications that
Joann Colbert is currently involved with drugs"; appellant's uncontested
statement that the grandmother had turned her life around; and the
grandmother's financial and moral support of appellant and her children.
Even considering all the evidence in the light most favorable to the trial
court's finding under subsection (1)(D), we hold that a factfinder could
not have reasonably formed a firm belief or conviction that the finding
was true with respect to the twins. Accordingly, we sustain appellant's
first issue.

2. Best
Interest of the five older children

In her
third issue, appellant challenges the factual sufficiency of the evidence
to support the trial court's finding that termination of appellant's
parental rights was in the best interest of D.N.C., E.D.C., J.D.M.,
T.L.J., and T.B.J. Texas courts have generally considered nine
nonexclusive, nonexhaustive factors set out in Holley v. Adams in
determining the best interest of the child. 544 S.W.2d 367 (Tex. 1976).
Those factors are (1) the desires of the child; (2) the emotional and
physical needs of the child now and in the future; (3) the emotional and
physical danger to the child now and in the future; (4) the parental
abilities of the individuals seeking custody; (5) the programs available
to assist these individuals to promote the best interest of the child; (6)
the plans for the child by these individuals or by the agency seeking
custody; (7) the stability of the home or proposed placement; (8) the acts
or omissions of the parent, which may indicate that the existing
parent-child relationship is not a proper one; and (9) any excuse for the
acts or omissions of the parent. Id. at 372. We will consider the
evidence as it relates to these factors.

1. The
desires of the children. Hornaday agreed that all the children loved
appellant. Hornaday further testified that the children were very much
bonded with their mother. On the other hand, Aiken testified regarding the
twice-monthly one-hour family visits, "My observation is that there's not
a big bond with the children. My observation is that there is not a lot of
nurturing that happens." When asked whether the children loved their
mother, Aiken responded, "I believe they do."

Hornaday
testified that D.N.C. wanted to come home. The CCCC's initial evaluation
report stated that D.N.C. wanted to live with her mother. DFPS asserts
that D.N.C.'s behavior following family visits--being "ugly to everyone"
and yelling and screaming until midnight--while otherwise doing well in
foster care is inconsistent with her stated desire to live with her
mother. However, D.N.C.'s foster mother reported to DFPS that D.N.C. got
angry and yelled that "no one" was helping her mother and that the foster
mother was not helping her mother. Thus, D.N.C.'s poor behavior following
family visits was more likely caused by her perception that her mother was
not getting the help that she needed. DFPS's summary reports also indicate
that, on one occasion, it was difficult to separate D.N.C. from her mother
at the end of a family visit.

Hornaday
testified that E.D.C. really loved his mother and that, although he was
getting the structure he needed at the foster home, he rejected it because
he wanted to be with his mother. Approximately one month before trial, a
DePelchin Children's Services report noted that E.D.C. had a strong bond
to his siblings and family. The report also noted that E.D.C. said he
loved his foster parents. The CCCC's initial evaluation report stated that
E.D.C. said that his mother is good, takes care of the children, and that
he loves her. He wished to be back with his family. DFPS asserts that
E.D.C. was depressed after a family visit because his mother did not talk
to him and that E.D.C. says he likes school and his foster parents are
good to him. These facts do not negate E.D.C.'s stated desire to live with
his mother.

Williamson
testified that, although J.D.M. lived with him most of the time, J.D.M.
saw appellant as a mother figure and they had a close bond. Williamson
testified that J.D.M. had gone back to live with appellant in September
2002 because he wanted to be with appellant and his brothers and sisters.
Williamson further testified that, at the time of trial, J.D.M. wanted to
live with Williamson but wanted to maintain contact with appellant and his
sisters and brothers and that he sometimes spent weekends with appellant.
Williamson testified that he felt that appellant and J.D.M. had a
mother-son relationship and that appellant treated all the children the
same.

There is
nothing in the record to indicate the desires of T.L.J. and T.B.J. DFPS
cites T.B.J.'s refusal to get dressed and her saying that she did not want
to go to the family visits as evidence of her desires. DFPS does not
speculate regarding what those desires are, nor do we.

2.
Emotional and physical needs of the children now and in the
future. The record does not indicate that any of the children have
special physical needs. There was evidence that the children were
appropriately clothed and well-fed. However, D.N.C., E.D.C., T.L.J., and
T.B.J. had some significant behavioral and emotional problems. Hornaday
testified that the house was orderly, but that there was chaos--a
"constant flow of traffic"--and that "there were always children present."

With
respect to the individual children, Hornaday testified that D.N.C. was
diagnosed as having attention-deficit-hyperactive disorder (ADHD) and was
borderline mentally retarded, that E.D.C. also had ADHD and oppositional
defiance, that T.L.J. was diagnosed as having ADHD, and that T.B.C. was
identified as having behavior problems that included tantrums, fighting,
and defiance of authority. Hornaday further testified that the children
needed consistency, stability, structure, and patience. She said that they
were getting some of those things at home, but that these children needed
all of those things. Hornaday said that she did not know whether appellant
could develop the necessary attributes to give the children the structure
they need. Hornaday also said she had no opinion regarding the termination
of appellant's parental rights. She expressed her opinion that the
children would adjust and thrive if they were removed from the home. But
Hornaday also testified that, if the children were returned home, she
would continue to see them.

Cooney
testified that appellant gave most of her time to the twins during family
visits and that the other five did not get equal time. But he admitted
that he did not know if it was normal for a mother to spend more time with
babies. Aiken testified that, from her observation of the family visits,
she did not think appellant was bonded with the children or nurturing to
them.

The
evidence shows that appellant has been able to take care of the children's
physical needs, but she will likely need some assistance in caring for
their emotional needs.

3.
Emotional and physical danger to the children now and in the
future. DFPS contends that Department personnel were concerned for
the safety of appellant's children. However, those concerns centered
around appellant's failure to recognize that Jackson was responsible for
T.J.'s death and Newman's presence in appellant's home. DFPS directs us to
a June 2003 evaluation by the CCCC expressing the concern that appellant's
"conflicted feelings regarding Mr. Jackson may prevent her from providing
a safe environment for her children." That evaluation was made less than
two months after DFPS became involved. Almost one year later, May 28,
2004, appellant's therapist sent a report to Aiken which showed that
appellant had made "good" progress in recognizing Jackson's role in T.J.'s
death and "moderate" progress in taking responsibility for her lack of
protectiveness. DFPS characterizes these statements as "self-serving."
However, they are not statements by appellant; they are the opinions of a
therapist to whom DFPS referred appellant.

Jackson is
no longer a threat to the children's safety, and there is no evidence that
Newman ever was. The May 28, 2004 monthly report by appellant's therapist
indicates that appellant had made good progress in understanding Jackson's
mistakes and his involvement in the death of T.J. Although Aiken and
Cooney both testified that, as late as May 2004, appellant did not believe
that Jackson was responsible for T.J.'s death, they did not testify that
she continued to believe so. At the termination trial, appellant testified
that she no longer had any contact with Jackson. She said that a lot of
"stuff" came out at his trial that she did not know and that she had to
get the information "secondhand" because she was not allowed to sit in the
courtroom.

Thus, there
is no evidence that the children will be emotionally or physically
endangered by being returned to appellant.

4.
Parental abilities. The testimony of Hornaday, Cooney, and Aiken
regarding the five older children when they were in appellant's home
indicated that the atmosphere was chaotic, hectic, and unstructured.
However, Newman testified that appellant was a good mother and that the
children were well-fed and clothed. Appellant had completed parenting
classes and said she no longer disciplined the children by spanking.

Hornaday
testified that the five older children were getting some of the things
they needed at home. She did not specify what needs were being met by
appellant. Significantly, Hornaday testified that she had no opinion
regarding the termination of appellant's parental rights. According to a
"Permanency Plan/Permanency Progress Report" filed with the court on
February 24, 2004, appellant was actively participating in individual and
group therapy, had completed parenting classes, and was making progress
toward alleviating the causes for the removal of the children. In
addition, according to her therapist's monthly reports for April and May,
appellant had made progress in the goals set for her. The only area in
which the report showed that she made no progress was the family's ability
to communicate effectively and demonstrating appropriate parenting skills.
However, this was not entirely within her control. Those skills were to be
worked on in family therapy, and, although appellant's therapist's report
dated May 28, 2004 shows the recommendation, "Begin Family Therapy," there
is no evidence that family therapy was ever provided to appellant. At
trial, Aiken testified that she was not disputing that appellant had
completed the services that she was offered, although she later stated
that appellant had not obtained appropriate housing--a claim that is
contradicted by DFPS records.

5.
Programs available to assist in promoting the best interest of the
children.

Appellant
had already taken advantage of all programs offered to her to increase her
ability to meet the needs of the children. These programs included
parenting classes, anger management classes, and individual and group
therapy. Aiken admitted that appellant had completed all the services she
was offered. Appellant's therapist reported that appellant was making
progress in all areas. Appellant also earned a GED and a license as a
nurse's aid and was employed in health care.

6.
Plans for the children. At trial, when asked about her plans for
the children, appellant stated, "I would do everything in my power to keep
all their fathers away from them." She testified that, if the children are
returned to her, the grandmother would move out to satisfy DFPS's
requirement.
(12)

DFPS's
plans are to place the children for adoption. Although Aiken testified
that the children were adoptable, she also said that she did not know that
they would be adopted into their foster homes, and she did not provide any
information regarding potential adoptive homes. In addition, she could not
assure that the children would be able to visit each other after adoption.

7.
Stability of the home or proposed placement. Appellant has
demonstrated her stability by living in the same residence for several
years, obtaining her GED and job training, and securing employment. In
spite of DFPS's objections to the grandmother, her presence in the home
appears to enhance the stability of the home because the grandmother
provides family support for appellant. DFPS produced no evidence regarding
the stability of any proposed placement for the children.

8. Acts
or omissions of the parent indicating parent-child relationship is not
proper. Knowing that Jackson was charged with injury to T.J., and
having agreed with DFPS that she would not allow Jackson to be around her
children, appellant let Jackson move into her home while he awaited
trial.
(13) DFPS also complains about appellant's failure to admit to
the severity of T.J.'s bruises.

9. Any
excuse for acts or omissions of the parent. Appellant testified that
she let Jackson live with her and be around the children after she agreed
that she would not because she did not think that Jackson was responsible
for T.J.'s death. Appellant said that she could not believe that Jackson
had severely beaten T.J. and that she was not allowed into the courtroom
during his trial and did not see the evidence presented. At the
termination hearing, appellant testified that she, at that time, believed
that Jackson was the cause of T.J.'s death. Moreover, contrary to Aiken's
statements, there is no evidence in the record that Jackson abused any of
appellant's children.

Appellant
contends that T.J. did not have severe bruising at the time appellant left
the house on the day T.J. was beaten. Newman testified that when appellant
left the house on that day, T.J. was "all right" and that appellant had no
knowledge of what happened to T.J. after appellant left the house. There
was no testimony establishing the extent of any bruising on T.J. after the
first spanking, but before the beating on April 5, 2003. If appellant did
not see T.J.'s bruises, she was not in a position to "admit" to the
severity of the bruising to comply with DFPS's demands.

Summary

In weighing
the Holley factors, we will necessarily consider some to be more
important than others, depending on the facts of a case. Here, it seems
clear that the three children who were old enough to express a preference
wanted to live with their mother, or at least to continue their
relationship with her, as is the case with J.D.M. Although DFPS may not
agree that this issue is undisputed, it presented no evidence that any of
the children did not want to return to their mother. Aiken admitted that
all the children love their mother. The desires of the children weigh in
favor of appellant.

It is
undisputed that appellant had completed all programs offered to her by
DFPS. The only evidence offered by DFPS that appellant had not done
everything she was asked to do was Aiken's testimony that appellant had
not obtained appropriate housing. That evidence was not credible because
it was contradicted by DFPS's records stating that appellant had
appropriate housing. Appellant admitted that she had not contacted any
agencies that could offer services for the children, but said she would if
the children were returned to her. Appellant's diligence in doing all that
DFPS asked of her weighs in her favor.

Neither
appellant nor DFPS dwelt on future plans for the children. Appellant said
she would try to keep the children's fathers away and would have her
mother move out of the house to satisfy DFPS's requirements, and DFPS
planned to place the children for adoption, although it did not yet have
adoptive homes for all the children. Thus, this factor does not weigh on
either side.

It is
undisputed that appellant provided for the physical needs of the children
by providing food, clothing, and shelter. However, the children have
significant emotional needs, some of which appellant has not been able to
fulfill. Three of the children were diagnosed as having ADHD, and they and
a fourth child had a variety of behavior problems. The children were
generally making better grades at school while in foster care. According
to Hornaday, most of the children's problems existed before DFPS became
involved with the children. But the evidence suggests that some of the
children's negative behavior was exacerbated by their separation from
their mother. Appellant's ability to take care of the children's physical
needs and some of their emotional needs weighs in her favor. However, her
difficulty in providing for all their emotional needs weighs in favor of
DFPS.

At the time
of trial, there was no evidence that the children would have been in any
danger by being returned to appellant because appellant and her mother
were the only ones living in appellant's house. Aiken's testimony that she
believed that all the children were abused and neglected, both physically
and emotionally, is without support in the record. When asked for
specifics, she said, "Well, their ability to socialize and how they
socialize tells a great deal about what they have been exposed to previous
to this. . . . [A]nd I believe they came to us with those types of
behavior . . . such as telling teachers to 'Kiss my butt' and using more
graphic language than that." Aiken also testified that the children had
nightmares, but those she discussed were related to the death of T.J. In
its brief, DFPS also cites the fact that the children were sometimes
disciplined by spanking and had various scars and old healed marks as
evidence of physical abuse. DFPS does not direct us to anything in the
record to show that these marks were the result of physical abuse, nor
does it inform us of how it distinguishes between permissible physical
punishment and physical abuse. Certainly, a child's use of somewhat crude
language is not a basis for terminating the parent-child relationship. The
physical-danger factor weighs in favor of appellant.

Relevant to
appellant's parental abilities, Hornaday testified that the home
atmosphere was chaotic, that appellant gave the children some of what they
needed, but not all, and that she did not know whether appellant was
capable of developing the attributes needed to parent the children.
Hornaday did not specify the needs that appellant was not meeting, and her
description of the chaos--that there were always children there--was
merely stating the obvious about a family having five (now seven)
children. Most important, Hornaday said she had no opinion regarding the
termination of appellant's parental rights and that she would continue to
work with the children if they were returned to their mother. Considering
the love and attachment between appellant and her children and her success
in complying with DFPS's requirements, appellant's parental abilities
weigh in her favor.

DFPS argues
that having eight children by four different fathers is an indication of
appellant's instability. DFPS does not consider appellant's recent
history. She has lived in the same house for several years and has
obtained her GED, a license as a nurse's-aid, and a job. It is evident
that she has worked on becoming more stable and capable of caring for her
children. The stability factor weighs in favor of appellant.

Appellant's
reason for allowing Jackson to be around the children while he waited to
go on trial was her belief that he was not the cause of T.J.'s death. Her
testimony that, after his conviction, she came to believe that Jackson
caused T.J.'s death was corroborated by her therapist's reports to DFPS.
This factor also weighs on the side of appellant.

Having
considered the Holley factors as they apply in this case, we hold
that the evidence in this case is factually insufficient to support the
orders terminating appellant's parental rights to D.N.C., E.D.C., J.D.M.,
T.L.J., and T.B.J. because, considering the entire record, a factfinder
could not reasonably form a firm belief that the termination of
appellant's parental rights was in the best interests of the children.
Accordingly, we sustain appellant's third issue.

DISPOSITION

1. The
five older children

Having
sustained appellant's third issue, we reverse the portion of the orders of
the trial court terminating appellant's parental rights and awarding DFPS
sole managing conservatorship in appeal numbers 01-04-01232-CV,
01-04-01233-CV, 01-05-00126-CV, and 01-05-00127-CV and remand those cases
to the court below for further proceedings consistent with this opinion.

2. The
twins

Having
sustained appellant's first issue and overruled DFPS's cross-issue, we
need not reach appellant's second issue regarding the best interest of the
twins. We reverse the portion of the order related to the termination of
appellant's parental rights in appeal number 01-05-00124-CV. Because the
trial court appointed DFPS as managing conservator of the children under
Family Code section 161.207 as a necessary consequence of the termination
of the parental rights of both appellant and each of the children's
fathers, and made no findings to support the appointment of DFPS as
managing conservator with the termination of appellant's parental rights
under Family code section 263.404, we also reverse the portion of the
order that appointed DFPS as the sole managing conservator.
(14) See Tex. Fam. Code Ann. § 263.404 (Vernon
2002) (allowing trial court to appoint DFPS as sole managing conservator
without termination of parental rights when trial court makes specific
findings).

When
reversing the trial court's judgment or appealable order, we usually
render the judgment or order that the trial court should have rendered.
Tex. R. App. P. 43.3. However, in a case involving the involuntary
termination of parental rights, if the trial court does not order
termination of the parent-child relationship, section 161.205 of the
Family Code requires that the trial court either (1) deny the petition for
termination or (2) render any order in the best interest of the child.
See Tex. Fam. Code Ann. § 161.205 (Vernon 2002). An
appellate court is not in a position to determine whether simply to deny
the petition for termination or to render some other order in the best
interest of the child. Circumstances concerning the child or parent may
have changed since the trial court rendered its order of termination, a
matter that requires a factfinder. We are therefore unable to render a
judgment that disposes of all remaining issues in the case and must remand
the case in part to the trial court for further proceedings under section
161.205.
(15) See Tex. R. App. P. 43.3(a).

Accordingly, we
render judgment in part in appeal number 01-05-00124-CV that appellant's
parental rights are not terminated, and we remand the case to the trial
court for the limited purpose of rendering an order, consistent with
Family Code section 161.205, disposing of the portion of the petition
relating to appellant.

Sam
Nuchia

Justice

Panel
consists of Justices Nuchia, Jennings, and Higley.

Justice
Jennings, concurring in part and dissenting in part.

1. D.N.C. is the
subject of appeal number 01-04-01232-CV, trial cause number 1996-43960;
T.L.J. and T.B.J. are the subjects of appeal number 01-04-01233-CV, trial
cause number 2002-25084; T.J.C. and T.D.C. are the subjects of appeal
nnumber 01-05-00124-CV, trial cause number 2004-03601J; E.D.C. is the
subject of appeal number 01-05-00126-CV, trial cause number 2003-04414J;
and J.D.M. is the subject of appeal number 01-05-00127-CV, trial cause
number 2003-14864.

2. J.D.M. actually lived more with his paternal
grandfather than with appellant. However, he was with appellant at the
time of this occurrence.

3. The Department of
Protective and Regulatory Services was renamed the Department of Family
and Protective Services effective February 1, 2004. 29 Tex. Reg. 3659
(2004) (notice of agency name change); see Act of June 2, 2003,
ch. 198, §§ 1.01(c), 1.18, 1.23, 1.26, 2003 Tex. Gen. Laws 611, 611, 623,
635, 640, 641, 642 (name change effective on date specified in transition
plan required by section 1.23 of act).

4. The fathers of D.N.C. and J.D.M. were in prison,
and the whereabouts of E.D.C.'s father were unknown.

5. See Tex. Fam. Code Ann. § 161.001
(1)(A)-(G), (J)-(S), (2) (Vernon 2002 & Supp. 2006).

6. Appellant had a history with DFPS. In 1998, after
being evicted from her apartment for non-payment of rent, appellant, her
cousin, and their children were staying in a motel room with only one bed.
Appellant, her two-week-old infant, and a couple of older children were
sleeping in the bed one night. When appellant woke up, the infant was not
breathing and blood was coming from his mouth. Appellant took the infant
to a fire station nearby, but he could not be resuscitated. The autopsy
report showed the cause of death as asphyxia, but the manner of death was
undetermined. DFPS investigated, but found no indication that appellant
was at fault. After this incident, DFPS provided services to appellant,
including parenting classes, which she completed. In four other referrals
to DFPS, allegations of abuse or neglect were resolved as "Ruled out" or,
in one instance, as "Unable to Determine/Factors controlled."

7. At Jackson's trial in April 2004, appellant
testified that she saw Jackson spank T.J. two times: once on April 4 and
once on April 5, 2003. At the termination trial, appellant said that she
knew about the April 4 spanking because Jackson told her.

8. Appellant's "role" in T.J.'s death, according to
Aiken, was her failure to protect T.J. from Jackson.

9. Newman also testified that he moved out of
appellant's house when Jackson's trial started, which was in April 2004.

10. A party need not file a notice of appeal to bring
a cross-point that presents alternate or additional grounds for affirming
a judgment. Helton v. R.R. Comm'n, 126 S.W.3d 111, 120 (Tex.
App.--Houston [1st Dist.] 2003, pet. denied).

11. "If the court finds by clear and convincing
evidence grounds for termination of the parent-child relationship, it
shall render an order terminating the parent-child relationship." Tex.
Fam. Code Ann. § 161.206(a) (Vernon Supp. 2006).

12. In addition,
the grandmother testified that, because Aiken and Cooney thought that she
should not live with the children, she would move out if the children were
returned. Aiken's and Cooney's
objections to the grandmother were based on her past criminal record and
her association with Newman, who, at the time of trial, was no longer
living with her. We note that, in spite of her criminal record, there is
no evidence in the record that the grandmother posed a danger to any of
the children or that she continued to be involved in any criminal
activity. DFPS knew at least by June 23, 2003 about the grandmother's
criminal record through a Family Evaluation conducted by the CCCC
approximately two weeks after DFPS took custody of the children. Yet DPFS
placed four of the children in the grandmother's possession and left them
there until December 2003.

13. In its brief, DFPS refers us generally to Section
I of its brief for other acts and omissions of appellant. Section I
comprises 27 pages of argument and authority relating to its section
161.001(1)(E) endangerment issue. However, DFPS does not direct us to any
specific acts or omissions stated within those pages, nor does it make any
specific argument with reference to such acts or omissions.

14. This Court is not reversing on unassigned error,
as asserted by the dissent. DFPS's appointment as managing conservator was
a consequence of the trial court's termination of both parents' rights.
See Tex. Fam. Code Ann. § 161.207 (Vernon 2002). Because we
have reversed the termination of appellant, the circumstances requiring
the appointment of a managing conservator under section 161.207 no longer
exist, and reversal of the appointment of DFPS as managing conservator is
a consequence of reversing the termination of appellant's parental rights.

15. The dissent states that Family Code sections
161.205 and 263.404 are inapplicable to this appeal because the trial
court "actually ordered the termination of Colbert's parental rights."
That was true at the time the trial court rendered it original order of
termination. However, section 161.205 becomes applicable on remand because
we have reversed the trial court order and have rendered judgment that
appellant's parental rights are not terminated. Section 161.205 is the
controlling authority for how the trial court must proceed on remand.
See Walker v. Department of Family and Protective Services, No.
01-06-00253-CV (Tex. App.--Houston [1st Dist.] December 21, 2006, no pet.
h.). Section 263.404 becomes applicable only if the trial court makes the
findings required by that section.