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Click here for the full text of this decision FACTS:Sabrina Yonko gave birth to V.Y. in August 1995 after having been raped at age 17. In 1996, Yonko began a relationship with Sam Perez, the man who Yonko later came to consider her husband and V.Y.’s father. Yonko testified that their families did not approve of their relationship and did not get along with each other. She testified that in one incident, her father went to jail and Perez’s father went to the hospital after the two men had a fight, and in another, Perez’s father showed up at her father’s house with gang members and guns. As a result, Yonko and Perez traveled wherever they thought they could find work and avoid problems with their families. She further testified that V.Y. never witnessed any of the violence between their families. Yonko estimated that during V.Y.’s childhood, they spent about a year to a year-and-a half in San Diego, a month to month-and-a-half in Las Vegas, four months in Phoenix, a couple of months in Detroit, a couple of months in Houston, two years in Chicago, and a couple of months in Hammond, Ind. Yonko stayed either in motels or with family members, and V.Y. was with Yonko at all times during this period. Yonko never enrolled V.Y. in school. During this period, she worked as an auto body repair technician, and sold potpourri and roses at flea markets. During one visit to Houston in March 2002, Yonko was arrested and charged with aggravated assault. Yonko testified that Perez was actually responsible for the assault, but that she pleaded guilty because she faced imprisonment. The criminal trial court sentenced Yonko to three years’ probation. She left Harris County soon thereafter to visit with her grandfather, who she claimed was having heart surgery. As a result, the court revoked Yonko’s probation, and sentenced her to two years’ imprisonment. Upon her incarceration, Yonko placed her son in her mother’s care. Yonko testified that she believed her brother, Angelo, and his wife, Debbie, would also help her mother (“Betty”) take care of V.Y. Yonko gave her mother $4,400, which she had saved from working, to care for V.Y. and to pay for an attorney. In May 2004, the Department of Family and Protective Services received a referral of neglectful supervision of V.Y. when he was found taking cookies from an apartment complex leasing office. V.Y. told police he had been staying with his maternal uncle, Angelo Yonko, in the complex, and that his mother and father were on vacation in Las Vegas. Apartment personnel told police that the padlocked apartment where V.Y. claimed he had been living had not been occupied by Angelo and that no one named Yonko occupied any apartment in the complex or in the surrounding area. DFPS observed that V.Y.’s clothing was dirty and torn, and that he had dirt caked in his nails, and took him into custody. Although he was 8 years old, V.Y. could not write his name, nor could he identify much of the alphabet or some numbers. A week later, Angelo contacted DFPS and provided them with inconsistent stories about why V.Y. was in his care. Angelo claimed V.Y. had been staying with Perez in Arizona, and that he went to get V.Y. in October 2003, but the DFPS caseworker testified that she had some concerns about his honesty. After performing a home study, DFPS determined that V.Y. should not live with Angelo because Angelo had been evicted in the past; V.Y. was seen roaming the streets at 1 in the morning; V.Y. shot someone’s window out with a BB gun while in Angelo’s care; Angelo could not produce proof of income; Angelo and his wife already had two children with a third on the way; and Angelo’s wife told DFPS that V.Y. would not follow her instructions. Yonko learned that her son was in DFPS’ custody from a social worker, and was then served in prison with the suit to terminate her rights. Yonko testified that she was shocked by what happened to V.Y. because Betty, Yonko’s mother, loved V.Y. as much as she did, and she did not know the reason for Angelo leaving V.Y. unsupervised. Upon learning about V.Y., Yonko had a “nervous breakdown,” meaning she started shaking, would not eat and had to be put on medication for a period of time. Yonko wrote about 200 letters to V.Y. after she learned what had happened. V.Y. wrote her back six or seven times. After being served, Yonko wrote numerous letters to the district and county court clerks requesting an attorney. The trial court appointed counsel for Yonko about a month before trial. In accordance with the family service plan created for her by DFPS, Yonko completed classes in prison on parenting, anger management and life skills, and participated in counseling. Yonko testified that upon her release from prison, scheduled to occur less than 30 days after the trial of this case, she would find employment, enroll V.Y. in school, and establish suitable housing. She testified that she had learned the importance of an education, exemplified by her earning her G.E.D. in prison, and that she regretted not enrolling V.Y. in school when he became eligible. Yonko testified that she believed it was a responsible decision to leave V.Y. with Betty because Betty was his grandmother and loved him. Betty herself was not available to testify because, according to the guardian ad litem’s testimony, Yonko believed Betty was living in California at the time of the trial. The DFPS caseworker testified that she believed termination was in V.Y.’s best interests, but admitted that V.Y. had expressed a strong preference to be with his mother. The caseworker opined that V.Y. would be “heartbroken” if his mother’s rights were terminated and would need counseling to support him if the court permanently separated him from his mother. The guardian ad litem supported termination based on reading reports, meeting with the foster parents and meeting V.Y. The guardian also testified that she met with Yonko for 45 minutes in jail, and that Yonko was cooperative in providing information. The attorney ad litem opposed termination, stating that it would be in V.Y.’s best interests to remain in contact with Yonko and that she believed V.Y. would suffer permanent damage if not allowed to remain in contact with his mother. The trial court terminated Yonko’s rights and appointed DFPS the sole managing conservator. HOLDING:Reversed and remanded for a new trial. The evidence was legally sufficient to support termination of Yonko’s rights based in her failure to enroll V.Y. in school and her failure to provide V.Y. with a stable home environment, and that termination was in V.Y.’s best interest. The court holds that the evidence was factually insufficient to support termination, however, because in weighing all of the Holley factors, a reasonable fact-finder could not have formed a firm belief or conviction that termination of Yonko’s parental rights was in V.Y.’s best interest. The evidence is factually insufficient to support termination of Yonko’s parental rights under the clear and convincing evidence standard because 1. the caseworker’s opinion supporting termination is substantially undermined by her further assessment of the psychological and emotional damage she concedes would result to the child from termination; and 2. the state presented scant evidence the trial court could credit as to Yonko’s future inability to meet the needs of the child under the Holley factors so as to overcome the caseworker’s assessment of the emotional risk to the child � an assessment supported by the attorney appointed to represent the child. Given the presumption that children should remain with their parents, and given the high evidentiary standard that the statute requires the state to meet, a reasonable fact-finder could not have found factually sufficient evidence exists to form a firm belief or conviction thattermination in this case is in V.Y.’s best interest, the court concludes. OPINION:Bland, J.; Radack, CJ, Alcala and Bland, JJ.

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