Osvaldo N. Chapa v. Brad Livingston

IN THE TENTH COURT OF APPEALS No. 10-09-00273-CV Osvaldo N. Chapa, Appellant v. Brad Livingston, Appellee From the 278th District Court Walker County, Texas Trial Court No. 24,673 MEMORANDUM Opinion Osvaldo N. Chapa, a Texas inmate, filed an in forma pauperis application for writ of mandamus against Brad Livingston, executive director of the Texas Department of Criminal Justice, for violations of the Public Information Act. The Texas Attorney General filed an amicus curiae advisory requesting dismissal of the suit. The trial court dismissed the suit under Chapter 14 of the Civil Practice and Remedies Code. Chapa challenges: (1) the dismissal of his lawsuit; (2) TDCJ’s failure to post Chapter 14’s requirements in the prison law library; (3) the trial court’s failures to conduct a hearing before dismissal and give him an opportunity to amend his pleadings; (4) violations of his right to access the courts; and (5) the trial court’s failures to conduct a hearing on his motion for new trial and file findings of fact and conclusions of law. We affirm. DISMISSAL In point one, Chapa contends that the trial court improperly dismissed his lawsuit, with prejudice, under Chapter 14 of the Civil Practice and Remedies Code. A trial court may dismiss a suit under Chapter 14 if it is frivolous, considering whether: (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2), (b) (Vernon 2002). When, as here, the trial court determines without a hearing that a claim is frivolous, that decision may be affirmed on appeal only if the claim has no arguable basis in law. Long v. Tanner, 170 S.W.3d 752, 754 (Tex. App.—Waco 2005, pet. denied) (citing Retzlaff v. Tex. Dep’t of Crim. Justice., 94 S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)). We review this issue de novo. Id. We take the allegations of the plaintiff’s petition as true. Id. (citing Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 272 (Tex. App.—Texarkana 2003, no pet.)). We examine the claims asserted and the relief requested “to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief.” Id. (quoting Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App.—San Antonio 2002, no pet.)). The trial court dismissed Chapa’s lawsuit for failure to comply with both the procedural and substantive requirements of Chapter 14. Chapter 14 requires an inmate to file (1) an affidavit or unsworn declaration providing information regarding any previous filings; and (2) an affidavit or unsworn declaration that states the “date that the grievance was filed and the date the written decision…was received by the inmate.” Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a) (Vernon 2002); Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a) (Vernon 2002). Neither document was filed with Chapa’s original petition, but Chapa moved to supplement his petition with the required affidavits. However, Chapa’s affidavit of previous filings fails to state the “operative facts for which relief was sought.” Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a)(2)(A). Chapter 14 also requires an inmate to file a claim “before the 31st day after the date the inmate receives the written decision from the grievance system.” Tex. Civ. Prac. & Rem. Code § 14.005(b). Chapa received a response to his step 2 grievance on March 20, 2009, but filed suit on May 18, more than thirty-one days later. See id. Dismissal was proper for failure to comply with the procedural requirements of sections 14.004(a) and 14.005(b). See Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex. App.—Houston [1st Dist.] 2000, pet. denied); see also Allen v. Tex. Dep’t of Crim. Justice-Institutional Div., 80 S.W.3d 681, 683 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Dismissal was also proper for failure to comply with Chapter 14’s substantive requirements. Chapa alleged that TDCJ violated the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution by ignoring his request for information under the Public Information Act. While a governmental body need not comply with a request for information from an incarcerated individual, it is not prohibited from disclosing information that pertains to the inmate. See Tex. Gov’t Code Ann. § 552.028(a), (b) (Vernon 2004); see also Hickman v. Moya, 976 S.W.2d 360, 361 (Tex. App.—Waco 1998, pet. denied). Because section 552.028 is not mandatory, but gives the governmental body discretion to disclose or not disclose the requested information, Chapa’s claim under the Texas Public Information Act has no arguable basis in law. See Hickman, 976 S.W.2d at 361; see also Harrison v. Vance, 34 S.W.3d 660, 663 (Tex. App.—Dallas 2000, no pet.). Because the trial court properly dismissed Chapa’s lawsuit for failure to comply with the procedural and substantive requirements of Chapter 14, we overrule point one. POSTING REQUIREMENTS In point two, Chapa contends that the TDCJ failed to post the requirements of Chapter 14 in the prison law library. The 1995 session law enacting Chapter 14 required TDCJ to “post notice of the provisions of this Act in each law library maintained by the department or under contract with the department.” See Act of May 19, 1995, 74th Leg., R.S., ch. 378, § 9, 1995 Tex. Gen. Laws 2921, 2926-27. “[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries…” Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d 72 (1977) (emphasis added). “‘[M]eaningful access to the courts is the touchstone’…and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606 (1996) (quoting Bounds, 430 U.S. at 823, 97 S. Ct. at 1495). Even had Chapa complied with Chapter 14’s procedural requirements, his asserted claim has no arguable basis in law. Accordingly, Chapa cannot show that TDCJ’s failure to post notice of Chapter 14’s requirements rendered the prison law library so subpar as to hinder his efforts to pursue a legal claim. See Lewis, 518 U.S. at 351, 116 S. Ct. at 2180. We overrule point two. ABSENCE OF HEARING BEFORE DISMISSAL FAILURE TO ALLOW OPPORTUNITY TO AMEND In point three, Chapa contends that the trial court violated his rights to due process, equal protection, and access to courts by failing to hold a hearing before dismissing his lawsuit and failing to allow him an opportunity to amend. Because the decision to hold a hearing on the dismissal of inmate litigation is within the trial court’s discretion, the trial court did not err by dismissing Chapa’s lawsuit without a hearing. See Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see also Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c); Long, 170 S.W.3d at 754. Moreover, Chapa’s claim has no arguable basis in law; thus, dismissal with prejudice was appropriate. See Nabelek v. Dist. Attorney of Harris County, 290 S.W.3d 222, 233 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); see also Williams v. Ballard, No. 10-08-00378-CV, 2009 Tex. App. LEXIS 9246, at *4 (Tex. App.—Waco Dec. 2, 2009, no pet.) (mem. op.). We overrule point three. ACCESS TO COURTS In point four, Chapa contends that the trial court violated his right to open courts by dismissing his lawsuit. However, Chapter 14 does not violate the constitutional right to access the courts. See Sanders v. Palunsky, 36 S.W.3d 222, 226-27 (Tex. App.—Houston [14th Dist.] 2001, no pet.); see also Hughes v. Massey, 65 S.W.3d 743, 745 (Tex. Sapp.—Beaumont 2001, no pet.); Guynes v. Texas Bd. of Pardons & Paroles, No. 03-99-00767-CV, 2000 Tex. App. LEXIS 3193, at *13 (Tex. App.—Austin May 18, 2000, no pet.) (not designated for publication). We overrule point four. ABSENCE OF HEARING ON MOTION FOR NEW TRIAL FAILURE TO FILE FINDINGS OF FACT AND CONCLUSIONS OF LAW In point five, Chapa challenges the trial court’s failure to hold a hearing on his motion for new trial and denial of his motion for findings of fact and conclusions of law. Because Chapa’s lawsuit was dismissed without a jury, the trial court did not err by denying Chapa’s motion for new trial without a hearing. See Hamilton v. Williams, 298 S.W.3d 334, 338 (Tex. App.—Fort Worth 2009, pet. filed); see also Jefa Co. v. Mustang Tractor & Equip. Co., 868 S.W.2d 905, 909 (Tex. App.—Houston [14th Dist.] 1994, writ denied). Nor was the trial court required to file findings of fact and conclusions of law when dismissing Chapa’s lawsuit under Chapter 14. See Retzlaff, 94 S.W.3d at 655. We overrule point five. We affirm the trial court’s judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis (Chief Justice Gray concurring with note)* Affirmed Opinion delivered and filed August 25, 2010 [CV06] * (Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not issue.) name="_ftnref3" title="">[3] C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child. Id. On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding. Id. The Holley factors focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dept. Prot. & Reg. Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ) (citing D.O. v. Tex. Dep’t of Human Servs., 851 S.W.2d 351, 358 (Tex. App.—Austin 1993, no writ)). But there is a strong presumption that the best interest of the child will be served by preserving the parent-child relationship. Swate, 72 S.W.3d at 767. “The presumptive right of parents is grounded in good policy considerations.” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). It is the public policy of Texas to “assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.” Tex. Fam. Code Ann. § 153.001(a)(1) (Vernon 2002). On the other hand, the goal of establishing a stable permanent home for a child is a compelling state interest. Dupree, 907 S.W.2d at 87. Barbara’s mother Lillian testified, stating that Barbara had made a “total turn around” and that after Barbara finished her treatment program at the Oxford House, Barbara and the children could stay in their Connecticut home and Lillian and Barbara’s father would financially support Barbara and the children, including paying for a nanny, if necessary. Barbara’s brother, who now runs the family kennel, has offered Barbara a job there. Lillian said that if Barbara were to relapse in her drug addiction, she and her husband would take care of the children financially. Barbara explained to the trial court why it would not be in the children’s best interest for her rights to be terminated: Because I have changed my life. I have – I have never worked a program before. Although I have been in treatment, I have never worked a program before and this time I have. I have a sponsor who I meet with weekly. I am – this was a totally different kind of treatment. It was very intense, very get rid of all the crap that make people use drugs. I mean, a lot of stuff is emotional and from your background and what happened when you were a child. And this place made me go through all of that and deal with all of that. . . . I’m just not feeling that I’m the same person anymore. I have changed a lot. I love my kids and I want to be with them. She later testified: I have always taken care of these girls. I have been there for them. I have had the means to take care of them to the best of my ability to take care of them and raise them. They are everything to me. They are all I want in life is to take care of my girls and raise my girls. I don’t want them to never know who I am or just to have memories of me. My girls are everything to me. And I know that I have done wrong. I know that I have screwed up in the past. But I also know that I am capable of doing this; that I have gone through such a change that it’s amazing the things I can do in my life now. And I know I can do them. And I don’t – I don’t get upset if somebody says, “There’s no way you can do that,” because I prove them wrong, that I can. I’m very good at what I do in my grooming. And I’m very good at taking a dead job that had nothing – that had no – and raised it. And I’m now making $300 a week. And I did this in a month and a half or less time. I know I can provide for my children. I know I can take care of them. And I know I can give them a good place and a good and safe home to live in. . . . I want my kids. Barbara admitted that her past drug use had not been in the children’s interest, but she said she always made sure that they were taken care of, housed, clean, clothed, and had what they needed. Barbara did not have an opinion on whether termination of Charles’s parental rights would be in the children’s best interest, but she did not want any type of relationship with him. She did not want Charles to have possession of the children, and if the court ordered that Charles have no contact with the children, Barbara would comply. Christina Corwin, a counselor assigned to Barbara by CPS, provided her with therapy from September 2003 until January 2004, dealing with drug issues, coping skills, and depression. Her main concern during therapy was Barbara’s relapses, and she recommended residential treatment, which Barbara sought and completed. Corwin noted that Barbara really cared for her children, strove to be a good parent, asked for help and advice, and took responsibility for her mistakes. Corwin had no criticism of Barbara during the time that she treated her; she thought Barbara was a good person. Corwin felt that, with additional time (six months) and supervision, Barbara could meet the requirements to have the children returned, noting that the children had never been injured and that Barbara’s issues were drugs and bad choices in men. She recommended reunification under the right circumstances. Because she had not seen Barbara in over a year, Corwin would not opine on termination. Wesley Walker, the children’s counselor through CPS, provided them therapy for thirty-three weeks. He attributed their behavioral difficulties to their removal and their foster care experiences. He said that much of A.H.W.’s acting out was the result of being separated from Barbara. Walker described the children as very bonded to Barbara; she was the central focus of their attention and play, they always talked positively about her, and they felt they would be reunited. The girls were always very positive after their visits with Barbara, and they never talked negatively or acted out. They did not react well to talk of termination; rather, they showed significant anxiety. Walker thought that it could be extremely detrimental for the children if Barbara were removed from their lives; he also said it would be just as detrimental if Barbara’s rights were not terminated and she went back to using drugs. He knew of no clear and convincing evidence that Barbara’s rights should be terminated, and he thought that, if Barbara got the children back, stayed clean for six more months, and got the children more counseling, it would have a good effect on the children. Mark Van Dusen was Barbara’s counselor at the Central Texas Treatment Center, a long-term treatment center, and treated her from June 2004 to December 2004. Barbara’s treatment method was based on “cognitive restructuring,” where the patient learns to change the way she thinks in order not to have the behaviors that get her in trouble. He said that after a slow start, Barbara grasped recovery—particularly the 12-step program—and made a dramatic change. She became very attentive and was “dead set” on getting her children back. He observed her visits with the children, noticing that they were loving, happy, and responsive with Barbara and were fairly well adjusted. Van Dusen thought that Barbara should have a chance to have the children in a structured environment like Oxford House and that her rights should not be terminated. If Barbara returned to using cocaine, Van Dusen thought that the children should not be with her. Katherine Davis, a probation officer and licensed chemical dependency counselor at the Central Texas Treatment Center, treated Barbara there in a program that emphasized mother/daughter issues, relationships, chaos and conflict avoidance, and self-esteem. In this program Barbara was able to rebuild her relationship with her mother. After her discharge in December 2004, Barbara was to be in Davis’s women’s skills group for a year. Davis confirmed the adequacy of Oxford House, which she said had a high success rate. She said that Barbara and the children could stay there as long as Barbara wanted, though Davis recommended against immediate placement of the children with Barbara because planning for such a change would be needed. She envisioned Barbara’s long-term recovery plan to take three to five years. Davis told the court, “Professionally, I think that Barbara has what it takes, with some services, with a plan that she can do this.” Debbie Miller, the director of Waco Child Care, a daycare facility where Barbara had the children at one point (when Barbara was struggling financially and using), saw nothing that concerned her about the girls’ condition. Barbara appeared to Miller to put the children’s needs first. Based on her past interaction with and observations of Barbara and the children, Miller did not believe that Barbara’s rights should be terminated. Jill McCall was executive director of Compassion Ministries and testified that Barbara’s history of hard work and honest self-disclosure and her loving and close relationship with her daughters warranted giving Barbara a second chance. James Lawson, a counselor at the Freeman Center, where he became acquainted with Barbara and the children, said that Barbara should be given another chance, based on her recovery and progress to date on her depression and codependent behavior problems. Ella Pearl Foster, the foster parent who cared for the children in the year before trial, said that they were always happy talking about Barbara, had good memories of her, and loved her. A.H.W. wanted to stay with Barbara and was angry when she could not. Katy Capp Hays, a CPS supervisor, opined that Barbara’s parental rights should be terminated because of her long history of drug abuse and relapse, her history of involvement with abusive men, and the need for the children to have a safe and permanent home. Hays did not think that a drug rehab home like Oxford House was appropriate for the children, but she had never visited it. Also, Hays and the Department did not have any of Barbara’s treatment records for the year before trial, and she had not communicated with Barbara’s providers for the prior year. Hays believed that Barbara’s prognosis for avoiding a relapse was poor, but she conceded that Barbara’s drug counselors were in a better position to judge Barbara’s success potential. Jamie Grohoske, who was the children’s current CPS caseworker, said that termination was appropriate because of her past reluctance to leave Charles when he sold drugs out of their home and was violent in the children’s presence, and because Barbara’s continued need for restrictive supervision was not healthy for the children. She felt that Barbara would continue to put the children at risk and was concerned of a relapse in the future. Grohoske thought that, after three years in institutional or foster care, the children need stability. According to Grohoske, Barbara had done what was on her service plan, but she had not proved to Grohoske that she could provide a safe and stable home for the children. Grohoske also said that Barbara had not paid court-ordered child support, but Grohoske admitted not setting up the account for Barbara and that there was a good chance Barbara did not even know about it. Grohoske described Barbara’s relationship with the children as more like peers than parent-child and that the children did not see Barbara as an authority figure. Grohoske admitted that she had little information on Barbara for the six-month period before trial, but she nevertheless recommended termination. She also admitted that if it were not for the Family Code’s dismissal deadline in this case, she would be staffing with her supervisor for possible reunification. We will evaluate the legal and factual sufficiency of the evidence primarily in the context of the Holley factors, but also with consideration of the Family Code’s best interest factors found in section 263.307. See In re J.I.T.P., 99 S.W.3d 841, 846-48 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (applying Holley factors and section 263.307 factors in best interest analysis); see also Lana S. Shadwick, Duke Hooten, & Charles G. Childress, Grounds for Termination of Parental Rights, in 2005-4 State Bar Section Report: Family Law 9, 10 (Fall 2005) (noting additional factors for determining best interest in section 263.307 when Department is a party). (1) Desires of the children There was no evidence that the children did not want to reunite with Barbara; in fact, the evidence was overwhelmingly to the contrary. CPS acknowledged the strong bonds between Barbara and the children and their love for her. See Yonko, --- S.W.3d at ---, 2005 WL 3500775, at *7 (“While [it] is true that the child’s desire to remain with his parents is only one factor to consider among many, his love for his parents cannot be ignored as a reflection of the parent’s ability to provide for the child’s emotional needs. Where the evidence of the parent’s other failures is not overwhelming, the desires of the child weigh against termination of parental rights.”). The evidence on this factor strongly weighs against a finding that termination was in the children’s best interest. (2) Emotional and physical needs of the children now and in the future Barbara believed that the children needed to continue counseling with Walker or another counselor. Walker, the children’s counselor, said that termination could be “extremely detrimental” to the girls, whose behavior he said improved after visits with Barbara. CPS agreed that Barbara had met A.H.W.’s medical needs in the past for her seizure disorder, and Barbara tried to assist CPS and the girls’ foster parents in how to care for them. CPS found the girls to be healthy and in good condition when they were removed. Despite her drug addiction, the evidence indicated that Barbara always provided the children with food, clothing, shelter, medical care, and love while they were in her care. Barbara admitted that she could go to prison if her parole was revoked. Nevertheless, the evidence on this factor weighs against a finding that termination was in the children’s best interest. (3) Emotional and physical danger to the children now and in the future There was evidence of one remote violent act by Charles against Barbara in the children’s presence, and that was when the children were very young. But because Charles’s parental rights were also terminated, he is effectively out of the children’s lives.[4] Barbara and her counselors discussed Barbara’s realization in her recovery program that she did not have to have a man in her life, which indicates that she was breaking through her cycle of abusive men. There was no evidence that the children have been emotionally scarred by any event, and there was no evidence that Barbara had ever used drugs in the children’s presence in the past. There was no evidence that the children were ever physically abused or that Barbara ever neglected their physical and medical needs. CPS caseworkers were primarily concerned with the risk that Barbara could relapse in the future, despite her two lengthy periods of sobriety and the progress she had made in the year before trial. We acknowledge—as Barbara has—the evidence of her lengthy scourge of drug addiction. But we also acknowledge the undisputed evidence about Barbara’s success in her drug rehabilitation program in the year before trial and her counselors’ supportive testimony. See, e.g., Horvatich, 78 S.W.3d at 598-99 (in reversing termination on best interest, court discussed mother’s rehab success). Notably, CPS had not even obtained Barbara’s treatment records for the prior year. Certainly there is the theoretical possibility that Barbara, like any alcoholic or drug addict, could relapse, but there was no showing by direct evidence of a present or future danger; rather, it was the speculative opinions of the CPS caseworkers—who had not even obtained and reviewed Barbara’s recovery records for the prior year—that this “could” happen in the future and that therefore Barbara’s rights should be terminated. However, “acts done in the distant past, without showing a present or future danger to a child, cannot be sufficient to terminate parental rights.” Wetzel v. Wetzel, 715 S.W.2d 387, 391 (Tex. App.—Dallas 1986, no writ) (evidence didn’t support termination of mother's rights based on finding mother engaged in conduct that endangered physical or emotional well-being of children because evidence showed mother had been cured of mental problems that caused her to abuse children). We conclude that a reasonable factfinder could not have credited the disputed evidence in favor of finding that emotional or physical danger to the children now and in the future would result from allowing Barbara to retain her parental rights. The evidence on this factor weighs against a finding that termination was in the children’s best interest. (4) Parental abilities of the individuals seeking custody: Grohoske testified that Barbara’s relationship with the children was more peer-like than parent-child and that she was not an authority figure to the children, while other witnesses testified that Barbara and the children were very loving and bonded with each other and that Barbara appeared to be a good parent. We conclude that this factor does not weigh strongly in favor of or against termination of Barbara’s parental rights. (5) Programs available to assist these individuals to promote the best interests of the children Barbara had complied with or performed all of the counseling, parenting classes, evaluations, and other tasks required by the Department. There was no evidence that she would not avail herself of additional programs in the future, and on her own she had looked into available programs and therapy for the children at and near Oxford House, which offers Alanon and Alatot programs for children. She had checked into the schools in the Cedar Park area and after-school programs at the YMCA. Barbara’s parents offered financial assistance if needed. Other than counseling, the Department offered no evidence of other programs for the children, including assistance for treating the girls’ trauma and anxiety upon termination of Barbara’s parental rights. The evidence on this factor weighs against a finding that termination was in the children’s best interest. (6) Plans for the children by these individuals or by the agency seeking custody Barbara’s short-term plan was for the children to live with her at Oxford House while she finished her program. She has reconciled with her family in Connecticut; her parents would let her and the children live in their home, and her brother had offered her a job at the family’s kennel, which is on the same property as the family home. The Department’s plan was to place the children for adoption, but its witnesses admitted that children as old as A.M.W. and A.H.W. are statistically harder to have adopted. They also admitted that because the children are bi-racial (Barbara is white and Charles is black), that too will make it harder for them to be adopted. The Department had no one waiting in the wings to adopt them. The evidence on this factor weighs against a finding that termination was in the children’s best interest. (7) Stability of the home or proposed placement Barbara had obtained permission for the children to move in with her at Oxford House, which is a residential house in a residential neighborhood, and they could stay there as long as they wanted. The caseworkers were critical of having the children in a residence with other recovering addicts, but they had not complained when Barbara lived with the children at the Freeman Center and Compassion Ministries. If she went to Connecticut with the children, they would live in Barbara’s childhood home where Barbara would work with her brother at the family kennel located on the same property. Her parents would be living there half of the year (they spend the winter in Florida), and they would pay for a nanny if necessary. At the time of trial, the Department still had the children in foster care, and it had no prospective adoptive family. The evidence on this factor weighs against a finding that termination was in the children’s best interest. (8) Acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one Barbara’s past drug use and addiction and her history of abusive relationships are detailed above, as is her recovery from those problems. We conclude that because of the passage of time, this factor does not weigh strongly in favor of or against termination. (9) Any excuse for the acts or omissions of the parent Barbara took full responsibility for her drug usage and criminal conduct; she did not offer excuses for her past behavior, though she pointed to financial stress and trouble with Alton as triggers for her relapse after Compassion Ministries. We conclude that this factor does not weigh strongly against or in favor of termination. Section 263.307 factors Of these thirteen factors, evidence on only two factors weighs in favor of termination: subsection (7) history of abusive or assaultive conduct by child’s family or others who have access to child’s home; and subsection (8) history of substance abuse. Tex. Fam. Code Ann. § 263.307(b)(7), (8). But the compelling evidence of Barbara’s recovery and its mitigating effect on these factors lead us to conclude that these two factors do not weigh strongly in favor of termination. The evidence on the other eleven factors in section 263.307 weigh termination. See id. § 263.307(b)(1-6), (9-13). Application Hays and Grohoske of CPS both testified that termination would be in the children’s best interest because of Barbara’s history of drug addiction and abusive relationships. On the trial court’s findings that termination of Barbara’s parent-child relationships with her two children would be in their best interest, and considering this evidence in relation to the best interest factors in the light most favorable to the trial court’s findings, we hold that a reasonable trier of fact could have formed a firm belief or conviction that termination was in the children’s best interests. Yonko, --- S.W.3d at ---, 2005 WL 3500775, at *11 (finding evidence legally (but not factually) sufficient on best interest); Horvatich, 78 S.W.3d at 601-04 (same); In re K.C.M., 4 S.W.3d 392, 398-99 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (same), overruled in part on other grounds, In re C.H., 89 S.W.3d 17 (Tex. 2002). We overrule Barbara’s no-evidence complaint in her fourth issue. But given the presumption that children should remain with their parents and the high evidentiary standard the Department must meet, and viewing all the evidence in a neutral light in relation to the best interest factors, we hold that a reasonable trier of fact could not have found factually sufficient evidence exists to form a firm belief or conviction that termination of Barbara’s parent-child relationships with A.M.W. and A.H.W. was in their best interest.[5] See, e.g., Yonko, --- S.W.3d at ---, 2005 WL 3500775, at *5-11 (reversing termination because of factually insufficient evidence on best interest); S.A.P., 169 S.W.3d at 706-11 (same); In re C.T.E., 95 S.W.3d 462, 467-69 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (same); Horvatich, 78 S.W.3d at 600-04 (same); In re D.T., 34 S.W.3d 625, 641-42 (Tex. App.—Fort Worth 2000, pet. denied); K.C.M., 4 S.W.3d at 398-99 (same). The evidence is factually insufficient on the best interest findings against Barbara. We sustain Barbara’s factual sufficiency complaint in her fourth issue. Conclusion We reverse the trial court’s termination order and remand this cause to the trial court for a new trial. We set a new dismissal date at 180 days after the issuance of our mandate in this cause. See In re J.B., 93 S.W.3d 609, 626 (Tex. App.—Waco 2002, pet. denied). The trial court may not extend this deadline. “If the [trial] court ... does not render a final order or dismiss the suit on or before the required date for dismissal . . . , the court shall dismiss the suit.” Tex. Fam. Code Ann. § 263.401(c) (Vernon Supp. 2005). BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissenting) Reversed and remanded Opinion delivered and filed February 22, 2006 [CV06] [1] The trial court terminated Charles’s parental rights with two findings of statutory violations under subsections 161.001(1)(D) and (E). [2] On Barbara’s second issue, we find that the evidence is legally sufficient to support the trial court’s finding that she engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children. See Tex. Fam. Code Ann. § 161.001(1)(E). The following is evidence on which a reasonable trier of fact could have formed a firm belief or conviction that Barbara engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children: Barbara’s cocaine use during her pregnancy with A.H.W., she remained with Charles despite his pattern of abuse, and she used cocaine before and after CPS became involved. Because of this legal sufficiency holding, the most relief that Barbara can obtain is a remand for a new trial. We thus need not address her other two legal sufficiency complaints. [3] In the context of permanency hearings, the Family Code identifies the following factors to consider in a best interest determination: (a) In considering the factors established by this section, the prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest. (b) The following factors should be considered by the court, the department, and other authorized agencies in determining whether the child’s parents are willing and able to provide the child with a safe environment: (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the department or other agency; (5) whether the child is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with: (A) minimally adequate health and nutritional care; (B) care, nurturance, and appropriate discipline consistent with the child’s physical and psychological development; (C) guidance and supervision consistent with the child’s safety; (D) a safe physical home environment; (E) protection from repeated exposure to violence even though the violence may not be directed at the child; and (F) an understanding of the child’s needs and capabilities; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. Tex. Fam. Code Ann. § 263.307(a, b) (Vernon 2002). [4] We note ironically that, despite Barbara’s written request to the contrary, CPS sent legal papers to Charles that revealed Barbara’s physical address. Barbara subsequently received a note from Charles that stated that he knew where she was but would leave her alone. [5] We question whether the evidence would even meet the lesser standard of preponderance of the evidence, much less the clear and convincing standard, in favor of a finding that termination was in the children’s best interest. See Horvatich, 78 S.W.3d at 601 (stating evidence didn’t even meet preponderance standard on best interest and reversing for factual insufficiency under clear and convincing standard).