in Interest of S.R., a Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00153-CV

IN INTEREST OF S.R., A CHILD

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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MEMORANDUM OPINION ON REHEARING1

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After considering Appellant A.R.’s motion for rehearing, we deny the

motion but withdraw our prior opinion and judgment of July 26, 2012, and

substitute the following.

1
See Tex. R. App. P. 47.4(b).
 I. Introduction

Appellant A.R. (Mother) appeals the judgment terminating her parental

rights to her daughter S.R. She argues in three issues that the evidence is

legally and factually insufficient to support the jury’s verdict and that the trial court

abused its discretion by appointing the Department of Protective and Regulatory

Services (the Department) as S.R.’s managing conservator. We affirm.

II. Background

Mother was nineteen years old at the time of trial in March 2011, and she

has three children. Mother’s middle child, S.R., was born November 15, 2009.2

S.R. was born prematurely, developed respiratory syncytial virus (RSV), and was

in and out of the hospital for several months following her birth. She was again

admitted to the hospital in March 2010 and underwent a tracheotomy to help her

breathe.

The Department received a report on April 2, 2010, that S.R. was ready for

discharge from Cook Children’s Hospital but did not have properly trained

caregivers to whom she could be released. Department investigator Shelby

Cozart conducted the investigation and learned that S.R. needed two “trach-

trained” caregivers before she could be released. Cozart’s understanding was

that S.R. would not survive without a trach3 because she “had a floppy airway,”

2
S.R.’s presumed father, R.G., did not appear for trial, and his parental
rights were terminated. R.G. is not a party to this appeal.
3
Trach is short for tracheostomy.

2
and the trach “kept her airway open so she could breathe.” S.R.’s caregivers had

to know how to properly and timely change and suction the trach because S.R.

could die without appropriate care.

Cozart testified that hospital personnel were not willing to release S.R. to

go home without trach-trained caregivers available to care for her. Cozart also

testified that hospital personnel had previously asked Mother “to stay at the

hospital 24/7 in order to be trach train[ed], and . . . to complete some CPR

trainings before they would allow the child to go home with her.” Cozart testified

that Mother’s mother, J.R., had also said that she would undergo the trach

training. Cozart testified that Mother and J.R. would often leave and go home

rather than stay at the hospital with S.R.

Cozart also testified about a calendar that had been prepared to show the

dates of S.R.’s hospital stay and the dates that Mother stayed at the hospital with

S.R.4 S.R. was admitted on March 3, and Mother remained at the hospital every

day between March 3 and March 12. Mother left the hospital on March 13 and

did not return until March 18. Mother was not at the hospital between March 19

and 21. Mother was at the hospital on March 22 but did not return again until

March 26. S.R. underwent her first tracheotomy procedure on March 27, and

she was transferred to the transitional care unit that same day. Mother was not,

4
Cozart acknowledged having not personally prepared the calendar and
testified that it was possible that Mother was at the hospital on dates where the
calendar reflected otherwise.

3
however, at the hospital between March 28 and 31. A nurse contacted the

Department on April 2, 2010, because Mother did not appear for a scheduled

training session. When Cozart met with the nurse on April 5, she learned that

Mother had not been to the hospital at any time the previous three days.

Cozart first met with Mother on April 5 or 6 and discussed the need for

Mother to stay at the hospital for training. Mother said that she understood what

the hospital was asking her to do and that she would stay at the hospital. Mother

remained at the hospital through April 10, but she left the morning of April 11 and

did not return until the afternoon of April 13. Mother remained at the hospital

from April 14 through 16 but left again on April 17. Mother returned to the

hospital on April 19 but did not stay.

On April 20, the Department removed S.R. and placed her with a trach-

trained foster family. The Department’s decision to seek removal was based, in

part, on a “care conference” at the hospital on April 16. At the meeting, Cozart,

the Department liason from the hospital, and S.R.’s doctors and nurses

discussed with Mother and J.R. the necessity of completing the trach training and

the high likelihood that S.R. would die if her trach was not suctioned and

changed timely and properly. Mother was also informed that she would have to

wake up regularly to suction S.R.’s trach.

Mother reported at the meeting that she did not have a telephone and that

she did not have her own transportation in case S.R. had to be rushed to the

hospital. Mother also said that she was not able to stay at the hospital as she

4
had been asked because she did not have enough gas money to drive back and

forth from Granbury, and the hospital staff informed her that Medicaid would pay

for her transportation. The Medicaid representative at the meeting, however,

said that Mother had been using the Medicaid money to pay for meals at the

hospital instead of gas. Medicaid had actually expired before the meeting but

had been extended because S.R. could not yet leave the hospital. Cozart also

testified that Mother reported having to return to Granbury because the person

she was living with had threatened to throw her things away.

Cozart testified that there was a danger to S.R.’s physical health or safety

when she was removed by the Department. Mother was not completing the

required trach training, and Cozart testified that Mother “was sleeping through

alarms at the hospital, the alarms would be going off saying that the baby needed

to be suctioned, and the hospital reported to me that she was sleeping through

those alarms.” Cozart testified that the alarms only go off when there is “a critical

situation at hand” and that they go off to indicate “that the trach had mucus or

saliva in it[,] and it had to be suctioned because [S.R.] couldn’t breathe.” Cozart

testified that, in addition to sleeping through the trach alarms, the Department

was concerned about Mother not having a telephone or her own transportation in

case of an emergency involving S.R.

Cozart testified upon questioning by the ad litem attorney that S.R.’s foster

parents underwent tracheotomy training for six or seven days and that they

began their training by “rooming-in” with S.R. at the hospital beginning the

5
weekend after she was removed by the Department. She testified that Mother

had had ample time to complete the same training before removal and that

Mother’s lack of trach training was the Department’s primary concern. S.R. could

die without proper care, Mother did not have a plan for ensuring proper care for

S.R., Medicaid had expired so the hospital could not keep her any longer, and

there was not anyone else with whom S.R. could live. Asked whether Mother

comprehended the severity of S.R.’s condition, Cozart responded, “At times I felt

like she did, but the overall picture of things, I don't think that she really

understood how serious it was.” Cozart testified that, from her investigation,

Mother and J.R. were the only people willing and able to care for S.R. and that

S.R.’s presumed father was not involved in her life and did not respond to the

Department’s attempts to contact him.

Cozart acknowledged that Mother had appropriately taken S.R. to the

hospital for her respiratory problems before her admission in March 2010 and

that Mother had arranged for transportation when doing so. She also testified

that she thought that Mother and J.R. had completed CPR training. Cozart

reiterated that the concern was whether she would be able to care for S.R. upon

S.R.’s discharge from the hospital. But Cozart acknowledged that Mother had

appropriately cared for S.R. before her March 2010 hospital admission and that

Mother was not unfit to parent a normal child, noting that Mother also had an

older child who lived with the child’s father and that she was pregnant with her

youngest child at the time of the investigation.

6
 Stephanie Sherwood is a certified pediatric nurse at Cook Children’s

Medical Center, and she works in the transitional care unit into which S.R. was

transferred after her tracheotomy. She testified that the transitional care unit’s

“main goal is education for the families on stabilizing the children and getting

them home with the families in a safe environment.”

Sherwood testified,

A trach is an artificial airway, and it is used to keep the airway open.
It is the only source of an airway for these pulmonary compromised
children. There are different reasons why you would get a trach. In
[S.R.]’s case, she had pharyngeal hypoplasia, which in layman’s
terms, a floppy airway; and also stenosis, which is closing or
stricturing of the airway, so her airway was closed and smaller than it
should be and it was also floppy. So it was not a very viable airway
for her, so, therefore, she had a trach placed, which is something
that will keep it open and will be firm there for her. So it’s an airway
that she [can] rely on.

Describing S.R.’s medical condition that led to her March 2010 hospital

admission, Sherwood testified,

[S.R.] had a history of PDA, which is a patent ductus arteriosus, is a
hole in the heart which normally closes at birth or after birth, but
since she was a premie hers did not close so she had a ligation
which is where they go in and they close that hole, and that’s pretty
typical for premies. With that operation you get mechanically
ventilated, and that sometimes can cause a little trauma to the
airway. She had this procedure done and went home and was doing
well, and then she came back to us with RSV, it’s a respiratory virus,
and that can range anywhere from just a runny nose to wheezing,
respiratory distress and respiratory failure.

....

So she came in with RSV, she was wheezing, having respiratory
distress, trouble breathing, and already with her history of her PDA.
Upon further investigation, diagnostic testing, they found this

7
 subglottic stenosis, which is the stricturing or the narrowing of the
airway, and also the floppy airway or hypertonia of her airway. With
those things and her continued respiratory distress, that all led to her
getting a trach.

Sherwood further testified that irritants or smoke in the air exacerbates

RSV, making the condition worse, and that S.R.’s medical records indicate that

she had been exposed to smoking in Mother’s home. She explained that the

hospital requests that parents avoid exposing these children to irritants such as

smoking, perfume, and animals that shed to avoid problems with compromised

airways and that not keeping the child away from irritants can be a dangerous

situation for the child.

Sherwood also described a common complication for children with a trach

and the need for the children’s caregivers to be properly trained. She testified

that the “airway is only about the size of a drinking straw” and can be closed off

very quickly. She also explained,

You can get a plug, which basically -- an easy way to think about it is
if you have -- you know, all of a sudden your nose gets stopped up,
you want to blow your nose so you can breathe. Well, they can’t
clear that airway, so they can get a mucus plug in there, and it can
totally cut off their airway literally in seconds, so you have to attend
to those monitors.

....

If [S.R.] was alarming, her oxygen levels went low, her color
changed, she had a mucus plug, what would have to happen is the
caregivers would need to do a trach change, take out her trach, and
put in a new one, and then be able to make sure that that is snugly
fit and secure, then secure her airway and make sure that she’s
doing well. If she’s still not doing well, then be able to administer
CPR. These are all expectations that the family members or

8
 caregivers are expected to be able to do by themselves because if
the situation were to come up when they were at home, they would
have to be able to do that.

Sherwood also described the need to suction the trach to clear the airway, even

when there is not complete blockage.

Sherwood testified that the nurses are required to document what occurs

during the child’s hospitalization, that the nurses’ notes would reflect whether a

parent was present, and that the notes would sometimes reflect when a parent

was not present. Sherwood then read the following excerpt from the March 28,

2010 nurses’ notes:

On March 28th, mother and grandmother came to visit. They both
informed the nurse that night that they were going to stay with [S.R.]
all night. Mother held her and learned a few things about her care.
She seemed very attentive. Mother stated she was going to go for a
walk with grandmother out to the car and would be coming right back
to patient’s room, and mother never returned.

Sherwood testified that Mother was at the hospital for one and one-half hours on

March 28.

Sherwood testified that she spoke with Mother and J.R. on April 1, that she

told them that they needed to have trach training every day, and that they agreed

to come to training from twelve to two on weekdays and any time on weekends.

Sherwood testified that the trach training is “very intense” but that the length of

the training varies with the specific medical needs of each child. In general,

though, parents must be able to independently and without prompting perform

tasks such as suctioning the trach, changing the trach ties, changing the trach,

9
feeding, and responding to hypothetical emergency scenarios at least three times

before the “rooming-in” process starts.

After the conversation with Mother and J.R. on April 1, they did not return

to the hospital until April 6. Sherwood testified that the hospital contacted the

Department on April 2 because Mother had set a time to come in but did not

show up or contact the hospital to make other arrangements. She testified that

contacting the Department is not aimed at taking the child away from a parent but

is instead an additional resource for teaching the parents how to provide a safe

environment for the affected child.

Mother remained at the hospital from April 6 through 11, and Sherwood

testified that she would have received some training during that time. However,

she also testified that a week is not enough time to become trach trained.

The nurses’ notes from April 19 state that S.R. was “alarming” on two

separate occasions—meaning S.R.’s “oxygen saturation is low, her heart rate is

elevated or low, or her respirations are low or elevated”—but that Mother was on

the computer, and J.R. was texting on her phone. Neither responded to S.R.’s

trach alarm on either occasion, even though they were in the same room and had

been instructed that they must respond when the alarms go off.

Sherwood testified that Mother and J.R. always had to be prompted and

told what to do next and were not demonstrating the ability to “critically think and

answer to the alarms themselves.” And Sherwood reiterated that the alarms

mean that S.R. required intervention because she was having trouble breathing

10
and that the required intervention could range from needing CPR to “coding,”

which she described as “need[ing] either life support or she’s going to die.” S.R.

might also suffer brain injury.

Sherwood testified that S.R.’s foster parents participated in training shortly

after removal. They were already trach-trained, but the hospital required that

they demonstrate their competence through successful trach changes and

responses to certain hypothetical scenarios. Sherwood testified that the family

was able to demonstrate their skills very quickly because they had previous

training. The hospital would not have released S.R. to the foster parents had

they not demonstrated their ability to care for her.

Sherwood also described some of the challenges parents face as children

with trachs grow and become more active. As the children grow, they explore

and try to pull out the trach. The trach must be replaced immediately

because the stoma, the hole where it’s placed, can close up very
quickly, within minutes, maybe even faster. And if that were to close
up and if she didn’t have a very viable or a working airway, then she
would not be able to breathe, and at that point CPR would also have
to be administered. So there still needs to be at least one caregiver
with her at all times who is trained and able to help her, especially
now that she’s a toddler and pulling on things and exploring things,
and more active.

Sherwood testified that S.R., at sixteen months old, could go into respiratory

distress within two or three minutes if her trach were removed or plugged. She

also testified that several children had died after discharge from the hospital

11
because their caregivers did not follow hospital directives, did not stay with their

children at all times, or did not keep the children on monitors.

Sherwood testified, based on her observation of Mother and J.R. and her

review of the records, that she did not believe S.R. could be safely released to

Mother and J.R. She said that they did not grasp that S.R. faces a life-or-death

situation each time her alarms go off or that immediate action is required.

Sherwood testified that Mother and J.R. “were given the opportunity to have the

training, but they were lacking the critical skills and evaluation skills to do so,”

and she cited several factors involved, including not being at the hospital to train;

sleeping, texting, or using the computer when they were at the hospital; and not

comprehending the training that they received when they participated, with all

three being equally important.

On cross-examination, Sherwood agreed that she had personally shown

Mother how to change S.R.’s trach and that Mother had learned some of the

skills for changing and suctioning the trach. She also agreed that the nurses’

notes reflect that Mother on April 17 “prepared all bottles, provided all feeds,

changed all diapers, gave patient a bath, did a successful trach change, provided

trach cares, repositioned patient as needed, and attended to all alarms.”

Sherwood acknowledged that Mother was, on that day, doing what the hospital

staff was asking her to do, but she said that there were still concerns and that

Mother never had a “clear breakthrough” in her ability to care for S.R.

12
 Sherwood testified that Mother was not completely unable to care for S.R.

but that she provided inconsistent care. She said the hospital was attempting “an

extended kind of intense rooming-in” training with Mother, which required Mother

to be at the hospital twenty-four hours per day, seven days per week for as long

as possible because S.R. was medically ready for discharge. But Sherwood

testified that Mother and J.R. had not satisfactorily completed the training, and

S.R. could not be discharged to Mother, even if she completed the training,

because S.R. needed a second, trained caregiver.

Sherwood testified that, moving forward, it is important that S.R. live in a

clean environment. The home evaluation is part of that process. Looking at

photographs of Mother’s one-room residence, Sherwood testified that it did not

appear to be a safe environment for S.R. From the pictures, Sherwood

expressed concern about Mother’s ability to provide for S.R.’s nutritional and

medical needs because there was no working refrigerator, which would be used

to store food and medicine, and because there could be a problem with

temperature control, which would exacerbate S.R.’s breathing problems.

Sherwood acknowledged, however, that parents with little income might often live

in small places with others and that doing so does not equate to being a bad

parent or unsafe living conditions. Even so, Sherwood testified that the hospital

staff was concerned about what would happen to S.R. if she were allowed to go

home with Mother.

13
 Dianna Cook served as the primary Department caseworker for S.R. and

Mother from the time of S.R.’s removal through January 2011. Cook testified that

the Department’s initial plans were family reunification and offering services to

Mother to achieve reunification. Cook testified that Mother was pregnant during

the pendency of the case, that she did not finish high school, and that she was

also caring for her older child at some point after the case began.

Cook testified that there was a group conference in June 2010. Mother

attended the meeting and signed off on the “Family Group Conference – Plan”

developed at the meeting. On the plan document is a list of family strengths.

Included in the list are that there is “[a] lot of support from [J.R.],” that the “family

loves and cares about [S.R.],” that the “family is able to have a good relationship

with the foster parent,” that the “family is able to rely on [the] foster family” for

support, that it is a “[r]eally close family,” and that the “family wants what is best

for [S.R.].”

Also on the plan document is a list of the tasks Mother was required to

complete from her service plan to regain custody of S.R. First on the list is to

receive medical training to care for S.R., and Cook advised Mother that she could

visit S.R. any time she was in the hospital and that Mother could receive

additional training when doing so. Cook said that S.R. was hospitalized “a

couple of times” after her removal and that she contacted Mother each time to let

her know, but Mother did not visit the hospital at any times other than the

regularly-scheduled bi-weekly visitations. Mother did not “room-in” with S.R. at

14
the hospital to receive trach training, and Cook testified that Mother had not given

her any other indication that she and J.R. had completed, or even attempted,

trach training after S.R.’s removal in April 2010.

Cook also testified about a permanency plan progress report dated

September 30, 2010. The report states that, as of September 25, 2010,

[S.R.] continues to be medically fragile and requires caregivers who
are appropriately trained to care for her. Failure to do so could result
in her death. [Mother] does not seem to understand the serious
nature of [S.R.]’s condition. She has not shown an interest in
participating in services that will provide the skills necessary to
properly care for [S.R.]. [Mother] has not provided evidence that she
has the skills necessary to provide the quality of care that [S.R.]
requires. [Mother] has not provided the Department with any
evidence that she has completed training and/or that she is capable
of providing the medical attention that [S.R.] requires. [Mother] does
not seem to realize the amount of attention that [S.R.]’s condition
requires. [Mother] has not kept in regular communication with her
caseworker or the Department. She does not seem to be taking her
service plan seriously as very little effort has been made towards
completion of services. [Mother] has minimally participated in
services and she has not shown the initiative to learn about [S.R.]’s
special medical needs.

By the time of this permanency plan, the Department’s permanency goal for S.R.

had changed to adoption by a non-relative.

Cook also testified about the permanency plan progress report dated

January 19, 2011. Mother had completed parenting classes by that time but had

not completed other parts of her service plan. The progress report states:

“Although [Mother] has completed parenting classes, she has not provided

evidence of the medical training necessary to properly care for [S.R.]. She has

not participated in other services besides the parenting classes.”

15
 Cook testified that Mother did not maintain regular contact with her as

required by her service plan and that Mother affirmatively contacted her only one

or two times. Mother also did not attend counseling, obtain employment, or

locate stable housing. Cook explained that Mother was repeatedly informed at

court hearings and in the service plan itself that her failure to complete her

service plan could lead to the termination of her parental rights to S.R.

Cook visited Mother’s home in October 2010. Cook described the home

as “a single room that had a bathroom adjoined to it. But there w[ere]n’t any

kitchen facilities or . . . bedding that would be appropriate for a baby, and it

just . . . really wasn’t a home,” and she testified that she “wouldn’t call it a home

where you would have, you know, appropriate places for children.” Cook further

testified that although Mother had not informed her each time she moved, Mother

had lived in at least two other places during the pendency of the case. She said

this is not stable for S.R. compared to the permanency S.R. would experience if

she were adopted. Cook said that she did not know whether Mother was able to

afford different housing.

Cook said that S.R. is currently in foster care in Royse City, approximately

sixty miles east of Dallas, and that Mother did not have her own transportation

but was transported to visitations by the Department. When S.R. was

hospitalized after removal, she was at Children’s Medical Center in Dallas, which

is an hour or hour and one-half drive from Granbury. Mother visited S.R. at the

hospital during regularly-scheduled visitation times but did not otherwise visit the

16
hospital. Cook testified, however, that the Department would have honored

Mother’s reasonable requests for transportation to the hospital outside scheduled

visitations had she requested it.

Cook testified that the Department intends to seek adoption for S.R. and

that she believes S.R. is adoptable.5 She further testified that if Mother’s parental

rights were not terminated, that outcome would not be in S.R.’s best interest

because the Department would likely be named managing conservator, meaning

S.R. would remain in the foster care system until she was eighteen years old.

Cook testified that Mother had been given “every opportunity” to complete her

service plan but acknowledged that Mother might have completed parts of her

service plan after she was no longer working on the case.

Rebecca Farquhar is a Department caseworker and was assigned this

case two months before trial and after Jennifer Bond served as caseworker for

about one month. Describing her activity as caseworker, including a meeting

with Mother just before trial, Farquhar testified,

I made a home visit to her home in March and spoke with [Mother]
about what services she had done. She had recently asked me to
set her up with a brand new counselor as well as to re-get the
number to do a drug and alcohol assessment, neither of which she
had done. I did give her a new number for a counselor as well as a
number to do the drug and alcohol assessment, and she had just set
those up when I went out for the home visit in March.

5
S.R.’s nurse and S.R.’s court-appointed special advocate each testified
that “several” people had expressed interest in adopting S.R., but Cook agreed
that adoptive placements at this point are speculative and that there is no
guarantee S.R. would be adopted.

17
 Farquhar described Mother’s home as “very, very small” and said that it is

“a trailer with four homes in it, I guess you would call them apartments.” The

room is “approximately 10-by-10, maybe 12-by-12, has a double bed in it, a

couch, a coffee table, and a pack and play for [her three-year-old son K.R.].” The

refrigerator is not working, and the microwave is the only way to cook food.

Mother, K.R., and J.R. live in the home, and J.R.’s daughter lives there every

other weekend. Mother’s youngest child, born during the pendency of the case,

also lives there “every week or two.” Thus, even without S.R., there might be five

people living in Mother’s home at certain times. Farquhar testified that Mother’s

home is not a safe living environment for a child with S.R.’s special medical

needs because S.R. needs cleanliness, safety, and a place to sleep. She stated,

however, that the home’s size is not necessarily the concern because the

Department routinely works with families without the resources to afford large

homes.

Concerning Mother’s incomplete service plan, Farquhar testified that

Mother had not made any of her $100 per month child support payments and

also had not maintained appropriate and safe housing, obtained a legal source of

income for at least six months,6 completed medical training, maintained regular

contact with the Department, or consistently attended parental visitations.

Farquhar testified that Mother missed several visitations and that Mother’s

6
Farquhar testified that Mother “had one job and [was] let go after about a
week.”

18
excuses included forgetting about the regularly-scheduled visit and oversleeping.

Farquhar also testified that Mother had not provided doctors’ reports following

her prenatal visits for her pregnancy with her youngest child.

Mother had previously completed parenting classes and had undergone a

substance abuse assessment just before trial. Mother had also started attending

counseling a few weeks before trial but had not completed it, and Mother had

been discharged by her first counselor because she had missed several

sessions.

Farquhar also testified that she was concerned about S.R.’s safety when

she is around K.R. because K.R. had attempted to pull S.R.’s trach out during

visitations. Farquhar said that K.R. is “a rowdy little child” with “a lot of energy,”

and Mother is his primary caregiver.

Tori Foster is a Department case aide who assists with transportation for

parents to attend visitations with their children. Foster transported Mother to the

majority of the visitations. The visitations were scheduled for every other Friday,

and Foster testified that she texted Mother the night before to remind her of the

visitations, even though she was not required to do so.

Foster said that she and Mother talked during the drives between

Granbury and Dallas. She testified that from her perspective, Mother feels that

she is “doing wonderful on her services,” does not understand why S.R. has not

been returned to her, and feels that she is ready to have S.R. back in her home.

Foster also testified that there is a disconnect between what needs to be done for

19
S.R. and what Mother believes should be done and that Mother’s maturity level

could be contributing to the disconnect.

Foster testified about a calendar that she prepared to show the visitation

schedule and the visitations that Mother attended or missed. Of twenty-five

possible visits, Mother attended fifteen. One visit was cancelled because S.R.

was sick, two were cancelled because K.R. was sick, one was cancelled

because Mother was sick, two others were cancelled because Mother gave birth

to her youngest child, one was cancelled because of weather, and another was

cancelled for a reason unknown to Foster. Foster agreed that S.R. could not

have people around her who were sick and that cancellations for sickness were

appropriate. Mother also missed a visitation in August 2010 because she

overslept and a visitation the month of trial because she was tired and forgot

about the visitation.

Foster testified that she observed the visitations each time that she

transported Mother. Beginning with the July 9, 2010 visitation, Mother had K.R.

with her at most of the visitations. Mother also had her youngest child with her at

the last visitation before trial, and Mother asked Foster to take pictures of her

with her children for use in court.7

7
Foster said that Mother had always taken pictures, but this was the first
visit that her youngest child attended, so she wanted pictures of all her children
together.

20
 Foster also testified that she took a video of the last visitation because

K.R.’s behavior was very problematic.8 Foster testified that K.R. is a “very high-

strung child, and [Mother] has had a lot of problems in the past with him trying to

keep him calmed down so she could visit with [S.R.].” Foster testified that K.R.

“was extremely, extremely bad” at this particular visit, saying, “He was throwing

toys, he was jerking bins off of the toy box, cutting lights off, running down the

hallway, so I just decided, you know, that I needed to record those.”

During this particular two-hour visitation, Mother held S.R. for

approximately ten minutes. Near the end of the visitation, Mother picked S.R. up,

and S.R. began crying. While S.R.’s reaction was not necessarily abnormal,

Mother just handed S.R. back to her foster mother rather than caring for her or

trying to calm her. Mother also had the nurse or foster mother suction S.R.’s

trach the majority of the time. Foster testified that there is “very little” bond

between S.R. and Mother; that S.R., now that she is crawling, does not allow

Mother to hold her very much; and that S.R. is, in contrast, very bonded with her

nurses and foster mother. Mother also does not show emotion when the

visitations are over. Foster acknowledged, however, that Mother had only seen

S.R. for approximately four hours each month for the previous year.

Foster testified that the visitations revolve mostly around K.R. because his

behavior takes Mother away from interacting with and caring for S.R. Foster also

8
Portions of the video were played for the jury.

21
testified that S.R.’s nurse had intervened in a prior visitation because K.R. was

trying to take out S.R.’s trach. Foster said that she had also intervened during

visitations because K.R. was throwing toys near S.R. and reaching for her trach.

Mother does not, however, redirect K.R. to let him know that he cannot touch the

trach. Even so, Foster said she does not believe K.R. is deliberately trying to

hurt S.R. Foster testified that it is good for K.R. to attend the visitations so that

he can bond with S.R., but she also said that Mother was warned that he would

not be able to attend future visitations if he remained aggressive toward S.R.

Foster was asked, based on her observations of Mother and S.R. and

Mother’s home, what could happen to S.R. if she were returned to Mother, and

Foster testified,

From my own personal opinion and watching the visits,
looking, I’ve been in [Mother’s] home, the conditions that she lives in
and stuff, I personally believe that [S.R.] would not live for a month if
she was returned home. And I truly in my heart believe that. I know
that [Mother] loves [S.R.], I mean I have no doubt that she loves
[S.R.], but she did not do the training that she needed. I do not think
she has the capability to take care of [S.R.].

[S.R.] is a very special little girl that needs a lot of love, a lot of
help, and I just do not believe that [Mother] could do that for her.

Foster testified that termination of Mother’s parental rights is in S.R.’s best

interest, and she expressed concern for S.R.’s safety if she were returned to

Mother.

Cheri Locke is a licensed vocational nurse who practices pediatric home

health. She provides care to S.R. every other Friday and has done so for the two

22
or three months before trial. Locke testified that she is very attached to S.R.

because she spends the entire day with S.R. and takes her to visitations.

Locke described S.R. as a very friendly baby, but she testified that there is

no bond between her and Mother. S.R. allows Mother to play with her, though,

and Locke testified that Mother seems to genuinely care about S.R.

Locke also described an incident involving K.R. at one visitation when he

grabbed S.R.’s trach. She described K.R.’s action as “a grab with the intent to

pull it out and so it was to where I couldn’t pull his hand off of the trach, I had to

hold his hands stable to keep him from being able [to] pull the trach out.” Locke

continued,

If [K.R.] pulled the tube out, [S.R.] would go into respiratory
distress really quickly, so it would be a matter of getting that new
trach back in as quickly as possible. And you’re working against the
fact that [S.R.] is very feisty and she’s fighting against you, too. So
she’s going to be moving all around because she doesn’t want you
messing with it, and then you have to get this back in. And on the
trach there’s two holes on the end where you have to -- they’re ties,
that actually holds it around her neck. You’re doing all of this one-
handedly, and it’s difficult for me, as a nurse, and I’ve been trained
to do it. But all of this has to happen very quickly because [S.R.]
goes from one extreme to another very quickly.

Locke testified that there have been occasions when S.R. had pulled out

her own trach, but that if the trach is pulled out, the trach must be replaced within

minutes. Locke said that this emergency situation will happen and that it is a

question of how often it will happen, and she testified that it may occur more

often as S.R. ages because older children get curious about the trach and try to

23
pull it out themselves. Locke also testified that Mother’s failure to get the proper

training was neglectful.

Locke testified that K.R.’s rambunctious behavior complicated the situation

and that his natural, two-year-old curiosity presented a danger to S.R. She

expressed concern about Mother’s failure to intervene when K.R. acted

inappropriately toward S.R. and said that Mother only told K.R. that his action

might “hurt sissy.” Locke said that Mother’s attention is generally directed toward

K.R. during visitations because he is “running around,” and she has to “make

sure he’s not going out the door.” Locke explained that S.R. could die if

something were to happen to her trach and that she is concerned that Mother

“would ignore how important this trach is, this is how the baby’s breathing, and

not really understand that you have to be very mindful of everything about this

trach because she doesn’t have a choice, she has to have it.” Locke

acknowledged, however, that the danger of someone pulling out S.R.’s trach,

whether it be K.R. or S.R., would remain an ongoing danger for S.R. Her

concern for S.R., though, is that Mother would not be attentive to the danger.

Bob Marston is a court-appointed special advocate (CASA), and he and

his wife served as S.R.’s co-CASAs. Marston described his CASA role as

conducting an investigation by talking to the parties involved, writing reports for

the court based on the information gathered, and “try[ing] to determine what is

the best interest of [S.R.].”

24
 Mother told Marston in June 2010 that she had never been employed. She

also said that she did not have a driver’s license or a car. Marston also testified

that he had visited Mother’s home, and he expressed concern about having

sufficient space for S.R. and her necessary medical equipment.

Marston also testified about what he believes is in S.R.’s best interest,

saying that he

formed a very strong opinion based on the entire investigation, and
that’s -- I’ve talked to a lot of people during the months since we’ve
got the case, and I feel strongly that it would not be in [S.R.]’s best
interest to be returned to [Mother]. I think it would be extremely
detrimental to her health, and I do not believe she would survive if
she were returned.

Marston testified that termination of Mother’s parental rights to S.R. is in

S.R.’s best interest. Marston discussed the reasons for his opinion, specifically

citing Mother’s failure to complete medical training and her inability to

appropriately care for S.R. Marston testified that he does not doubt Mother’s

love for S.R., but he said that he does not believe S.R. will live if Mother’s

parental rights are not terminated and that, to him, seeing S.R. survive overrules

other concerns he has about the consequences of terminating Mother’s parental

rights to S.R.

Mother testified that she completed tenth grade but did not have a high

school diploma or GED. Her third child was born in October 2010 during the

pendency of this case, and she was two-months pregnant with that child during

25
S.R.’s hospitalization in March 2010. Mother testified that being pregnant hurt

her ability to find a job.

Mother testified that she was happy when she learned she was pregnant

with S.R. and that she regularly attended her prenatal visits. Mother testified that

S.R. was born six weeks prematurely and that she did not know before S.R.’s

birth that she had a heart defect. She first learned of S.R.’s heart murmur when

S.R. was hospitalized at three and one-half months old for RSV. Mother took

S.R. to the hospital in Granbury, but S.R. was transferred to Cook Children’s in

Fort Worth. Mother testified that S.R. was hospitalized for two weeks for heart

surgery and that she developed the floppy airway because the tube in her throat

was not properly lubricated, and tissue grew around it. Mother testified that she

slept in S.R.’s room during that hospitalization and that she never left the

hospital.

Mother said that she took S.R. to the hospital again a few weeks later

because she was breathing sporadically. Regarding the calendar prepared to

reflect her absences from the hospital, Mother denied being absent as much as

had been represented, testifying that she was at the hospital around the clock

beginning at the first of April. She testified that she was always in S.R.’s room

other than when she went to get something to eat or to visit her grandmother in a

nearby hospital. It was during this hospitalization that S.R. had the tracheotomy,

and Mother testified that she began the training to learn to suction S.R.’s trach.

Mother described the process of suctioning the trach, changing the ribbon around

26
the trach, and changing the trach, and she testified that she performed those

tasks multiple times at the hospital. Mother testified that she completed the

training other than the rooming-in portion.

Mother admitted knowing that she had to complete the medical training to

care for S.R., but she said that she never had the gas money to go to Fort Worth

for the training. She also testified that no one informed her of the option of

training with S.R. each time S.R. was hospitalized. Mother testified that J.R.

would be S.R.’s second caregiver, but she admitted that J.R. had also not

completed the medical training. In a different part of her testimony, Mother

claimed that she and J.R. should have certificates of completion at Cook

Children’s Hospital because they had completed all the training offered by the

hospital. Mother said she is capable of caring for S.R., even without further

training, but she later testified that it is best for S.R. to be with someone who

knows how to care for her and that she did not presently know how to care for

S.R. In yet another part of her testimony, Mother said that she thought she

should have more medical training, saying that she had “done the training. I just

haven’t done the rooming-in.” But Mother also testified that she blamed herself

for not going to the hospital during S.R.’s two most recent hospitalizations to

complete additional training.

Mother expressed understanding that the primary issue with S.R. is her

“very serious medical condition” and that whoever cares for her must be able to

react quickly and know exactly what to do because S.R. could die. Mother said

27
that she knows what to do if S.R.’s trach were pulled out and that she could

provide S.R. with her undivided attention twenty-four hours per day, seven days

per week. She testified that this would be possible because she has J.R. to help

her. Mother specifically disagreed with Sherwood’s testimony about her not

responding to S.R.’s alarms at the hospital and testified that she had suctioned

S.R.’s trach during visitations every time it was needed.

Mother also testified that she understood S.R. to have major respiratory

problems, but she denied that she had been told not to smoke around her. After

initially denying that J.R. smoked around S.R., Mother admitted that J.R. had

sometimes smoked inside the house. Mother acknowledged smoking but denied

ever smoking in the house or around S.R.

Mother testified that she did not pay child support for S.R. as required by

her service plan because she was unemployed, even though she knew that

finding employment was another requirement of her service plan. Mother

testified that she had submitted about twenty applications for employment but

had only had the one job for eight days. Mother also acknowledged past

marijuana use and a marijuana-related conviction, but she denied current use of

marijuana or other controlled substances.

Mother acknowledged that her home is small and said she was not sure

how she would accommodate S.R.’s medical equipment in the small space, but

she testified that she planned to find a larger place by using public assistance.

28
Mother admitted, however, that she had not given the housing authority the

information needed to apply for housing.

Mother denied that S.R. cries when she holds her during visitations and

testified that she does not hold S.R. the entire visitation because she is “a very

busy little girl. I’m not going to sit there and hold her down to where she can’t

play.” Mother also testified that although K.R. is two years old and active, she is

able to sufficiently concentrate on all of her children, including S.R., at the same

time. Mother acknowledged that K.R. “can be a handful,” but she said that he is

trying to be affectionate toward S.R. and that she has talked with him about not

touching S.R.’s trach.

Mother said that she has a lot of family in the area to provide her with

assistance and support, especially J.R., her brother, sister, and sister-in-law.

Mother testified that J.R. wanted to attend the visitations with S.R. but was

unable to because of her work schedule. Mother also said that K.R. primarily

lives with her and that her youngest child is with her about half of the time.

Mother testified that she submitted to the required drug and alcohol

assessment the month before trial but agreed that she did not do so within the

time frame mandated by her service plan. She said that she attended parenting

classes and that she had started counseling, but she denied that she was at fault

for being discharged by her first counselor.

Mother testified that she loves S.R. and that she has tried to provide her

with appropriate care the best that she can. She testified that it is not in S.R.’s

29
best interest for her parental rights to be terminated and that she wants to have

S.R. grow up with her and to know her biological family. Mother testified that she

hopes S.R. will again live with her in the future.

J.R. is Mother’s mother and S.R.’s grandmother. J.R. testified that Mother

did everything that was required to care for S.R. before her hospitalization in

March 2010 and subsequent removal. J.R. described Mother as a loving mother

who cares for her child. J.R. testified that she and Mother completed their

medical training except for the rooming-in, but she admitted in later testimony

that she and Mother had not completed the training.

The trial court instructed the jury, in part, as follows:

For the parent-child relationship to be terminated in this case, it must
be proved by clear and convincing evidence either –

1. That [Mother] engaged in conduct that endangered the
physical or emotional well-being of [S.R.]; or[9]

2. That [Mother] failed to comply with the provisions of a court
order that specifically established the actions necessary for
[Mother] to obtain the return of [S.R.] who has been in the
permanent or temporary managing conservatorship of the
[Department] for not less than nine months as a result of

9
Family code section 161.001(1)(E) states in full that termination of
parental rights may be ordered if there is clear and convincing evidence that the
parent “engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being of the
child.” Tex. Fam. Code Ann. § 161.001(1)(E) (West Supp. 2012) (emphasis
added). However, the trial court granted Mother a directed verdict concerning
her knowing placement of S.R. with others who had engaged in endangering
conduct and thus did not instruct the jury as to that portion of section
161.001(1)(E).

30
 [S.R.]’s removal from [Mother] for the abuse or neglect of
[S.R.].

The jury unanimously answered “yes” to the broad-form question that

inquired whether the parent-child relationship between Mother and S.R. should

be terminated. The trial court entered judgment accordingly.

III. Statement of Points for Appeal

In 2008, in an en banc decision, this court held that former family code

section 263.405(i) is “void as a violation of the separation of powers provision of

the Texas constitution.” In re D.W., 249 S.W.3d 625, 645 (Tex. App.—Fort

Worth) (en banc), pet. denied, 260 S.W.3d 462 (Tex. 2008) (per curiam).

Specifically, we held in D.W. that section 263.405(i)

is void because it violates the Separation of Powers Clause of the
constitution to the extent that it forecloses our power to review
issues properly preserved for appeal because the statute unduly
interferes with our substantive power as an appellate court to rehear
and determine issues on the merits that were decided in the court
below.

Id. at 640; see also In re A.J.M., No. 02-11-00137-CV, 2012 WL 2877457, at *1

(Tex. App.—Fort Worth July 16, 2012, pet. denied) (op. on reh’g) (en banc).10

Thus, if an issue was properly preserved for appellate review in the trial court in

compliance with the rules of civil and appellate procedure, section 263.405(i)

unconstitutionally interferes with our constitutionally conferred power to review

10
Section 263.405(i) was repealed effective September 1, 2011, but it
technically applies in this case because the trial court signed the judgment before
September 1, 2011. Litigants whose parental rights are terminated by final
orders rendered on or after that date need no longer file statements of points.

31
the issue on the merits on appeal. D.W., 249 S.W.3d at 640, 645. Therefore,

because Mother’s complaints were properly preserved in the trial court by

including them in her timely motion for new trial, we decline the Department’s

request that we summarily overrule them for failure to include them in a timely-

filed statement of points under section 263.405(i).

IV. Standards of Review

A parent’s rights to “the companionship, care, custody, and management”

of his or her children are constitutional interests “far more precious than any

property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,

1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “While parental rights

are of constitutional magnitude, they are not absolute. Just as it is imperative for

courts to recognize the constitutional underpinnings of the parent-child

relationship, it is also essential that emotional and physical interests of the child

not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26

(Tex. 2002). In a termination case, the State seeks not just to limit parental rights

but to erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except for the

child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination

proceedings and strictly construe involuntary termination statutes in favor of the

parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex.

App.—Fort Worth 2009, no pet.).

32
 In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163

S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may

not be based solely on the best interest of the child as determined by the trier of

fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In

re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on

reh’g).

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001; see also id. § 161.206(a). Evidence

is clear and convincing if it “will produce in the mind of the trier of fact a firm belief

or conviction as to the truth of the allegations sought to be established.” Id.

§ 101.007 (West 2008). Due process demands this heightened standard

because termination results in permanent, irrevocable changes for the parent

and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243

S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and

modification).

In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the grounds for termination were

proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the

33
evidence in the light most favorable to the finding and judgment. Id. We resolve

any disputed facts in favor of the finding if a reasonable factfinder could have

done so. Id. We disregard all evidence that a reasonable factfinder could have

disbelieved. Id. We consider undisputed evidence even if it is contrary to the

finding. Id. That is, we consider evidence favorable to termination if a

reasonable factfinder could, and we disregard contrary evidence unless a

reasonable factfinder could not. Id.

We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573,

574. And even when credibility issues appear in the appellate record, we defer

to the factfinder’s determinations as long as they are not unreasonable. Id. at

573.

In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder’s findings and do not supplant the verdict with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record, a factfinder could reasonably form a firm conviction or belief that the

parent violated subsections (E) or (O) of section 161.001(1) and that the

termination of the parent-child relationship would be in the best interest of the

child. Tex. Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28. If, in light of the

entire record, the disputed evidence that a reasonable factfinder could not have

credited in favor of the finding is so significant that a factfinder could not

34
reasonably have formed a firm belief or conviction in the truth of its finding, then

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

V. Endangerment

In part of her first issue, Mother argues that the evidence is legally and

factually insufficient to support termination under family code section

161.001(1)(E) and (O).11

“Endanger” means to expose to loss or injury, to jeopardize. Boyd, 727

S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,

no pet.). Under section 161.001(1)(E), the relevant inquiry is whether evidence

exists that the endangerment of the children’s physical well-being was the direct

result of the parent’s conduct, including acts, omissions, or failures to act. See

J.T.G., 121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E).

Additionally, termination under (E) must be based on more than a single act or

omission; the statute requires a voluntary, deliberate, and conscious course of

conduct by the parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann.

§ 161.001(1)(E). It is not necessary, however, that the parent’s conduct be

directed at the children or that the children actually suffer injury. Boyd, 727

S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the children’s

well-being may be inferred from parental misconduct standing alone. Boyd, 727

11
Mother preserved this part of her first issue by raising it in her first motion
for new trial.

35
S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004,

pet. denied).

Mother argues that she did not cause S.R. to need the tracheotomy and

that the danger to S.R. arises from S.R. “now being medically fragile as a result

of the tracheotomy.” Mother also argues that she is not the source of the danger

to S.R. and that she did not engage in a course of conduct as required for there

to be endangerment under section 161.001(1)(E). Mother also argues that “[t]he

evidence at trial was uncontroverted that [she] had made significant efforts to

learn each of the trach skills needed to care for S.R. and had been able to

demonstrate those skills in the hospital.” She further contends that the fears

expressed by trial witnesses that she cannot properly care for S.R. are “the type

of abstract fear of what might happen, i[.]e. ‘metaphysical injury’ which is an

impermissible basis under subsection E.” While the evidence presented at trial

was largely contested and conflicting, Mother focuses only on evidence favorable

to her position and minimizes the other evidence supporting the jury’s verdict.

We do not repeat it at length here, but the evidence presented to the jury

rises above abstract concepts of danger or metaphysical injury to S.R. The jury

heard detailed testimony about the severity of S.R.’s medical condition, the

distinct possibility that S.R. could go into respiratory distress (and possibly die)

within minutes if her trach were not suctioned or changed timely and

appropriately, and Sherwood’s recitation of other children with similar medical

conditions who had died after being discharged from the hospital because their

36
caregivers did not properly care for them. The jury also heard evidence that

Mother, despite being repeatedly informed by hospital personnel of the need to

be properly trained to care for S.R., went days without returning to the hospital

and failed to engage in training or otherwise attend to S.R.’s needs when she

was not absent from the hospital, failing to respond to S.R.’s alarms even when

she was in the same room. Department personnel also discussed the need for

medical training with Mother, including the medical training in both the initial

family group conference plan and the formal service plan.

Mother was also warned at each court hearing that her failure to complete

medical training (and all other parts of her service plan) could lead to termination

of her parental rights. Cook, Sherwood, and Foster each testified that Mother

does not comprehend the severity of S.R.’s medical condition, and although

eleven months had passed since S.R.’s removal, Mother did not complete or

even attempt any additional medical training. There was also testimony that

Mother’s older child is rambunctious, active, and curious, and that he presents a

danger to S.R., the severity of which Mother does not seem to comprehend.

Contrary to Mother’s contentions, the jury heard evidence by which it could

have determined that Mother engaged in a course of conduct that endangers

S.R.’s physical or emotional well-being. In that regard, the evidence in this case

is similar to that presented in In re J.O.C., 47 S.W.3d 108, 110–11, 113–14 (Tex.

37
App.—Waco 2001, no pet.), disapproved by J.F.C., 96 S.W.3d at 267 & n.39.12

The J.O.C. court summarized the evidence concerning endangerment under

section 161.001(1)(E) as follows:

[T]he jury could conclude that Stephanie engaged in a similar course
of conduct. First, testimony showed that Stephanie’s conduct
endangered the physical well-being of the child. Stephanie’s child
was medically fragile, with feeding difficulties, a propensity to stop
breathing, and susceptibility to infection. However, she did not
prepare for the hospital’s release of her child by learning basic
feeding techniques. A caseworker testified that Stephanie acted as
if she “didn’t really care” to learn about the sleep apnea monitor (an
alarm that warned when the child had stopped breathing). She did
not attend the CPR class that is required for all parents of premature
babies. She did not learn preventive care to counter the respiratory
infections that her child is susceptible to. The child’s doctor wrote in
his chart: “It is clear to me at this time that mom cannot care for this
infant. Unless something changes drastically, I cannot medically
discharge this infant to mom’s care. Mom must show some initiative
that she will be able to cope with the obstacles involved in caring for
this preemie infant.”

Testimony indicated that Stephanie had several opportunities
to show some initiative. The hospital offered to provide room and
board and to pay for her transportation to Waco. She did, in fact,
accept the offer of help on three occasions, but chose to watch
television in her room most of the time rather than work with her
child. Stephanie signed a safety plan with the Child Protective
Services caseworker agreeing to visit the child for at least one
feeding on a daily basis while the child remained in the hospital.
She did not follow through with the plan. Dr. Shinder, a licensed
clinical psychologist, testified that he asked Stephanie to complete
several small tasks for the benefit of the child, such as to check out a
library book on child care and to call the government program

12
We recognize that the supreme court disapproved of J.O.C. for its
“articulation of the standard of review on appeal.” J.F.C., 96 S.W.3d at 267 &
n.39. The supreme court did not otherwise disapprove of J.O.C., however, and
we believe that the evidence in J.O.C. was nevertheless sufficient under the
properly articulated standard of review.

38
 Chronically Ill and Disabled Children for referrals. Stephanie failed
to comply with any of his requests. Although Stephanie did not
actually injure the child physically, her conduct put him at great risk
of physical harm had he been released to her. Dr. Shinder
commented that had the child been sent home from the hospital with
Stephanie, he would not have survived.

Second, Stephanie exhibited a course of behavior showing
her inability to deal with J.O.C.’s emotional and developmental
needs. The unrebutted testimony is that bonding between parent
and child is essential to the emotional health and development of the
child. Stephanie visited her child three times while he was in the
hospital and showed up for only about half of the scheduled visits
after he was moved to a foster home. Three witnesses, all
employees of Child Protective Services who had observed
Stephanie’s visits with the child, testified that Stephanie had little
interaction with her child. According to the visitation supervisor,
Stephanie spoke to her child four times over a period of one and a
half years: “Come here;” “Don’t throw that;” “Quit hitting yourself in
the head;” and “Do you want that?” Other testimony revealed that
Stephanie kept J.O.C.’s body away from her own. She avoided
face-to-face contact with him. J.O.C. exhibited no reaction to
Stephanie when she entered the room for her visitation, and
Stephanie did nothing to elicit any response from her child.
According to Dr. Shinder, Stephanie could not answer his questions
about her child and has not bonded with J.O.C.

J.O.C., 47 S.W.3d at 113–14. While Mother did not cause S.R. to need a

tracheotomy, the jury could have determined, as the jury did in J.O.C., that

Mother endangered S.R. through her failure to obtain the appropriate medical

training despite repeated admonitions, instructions, and warnings during the

eleven months following S.R.’s removal.

Viewing all the evidence in the light most favorable to the termination

judgment, and disregarding all contrary evidence that a reasonable factfinder

could disregard, we hold that the evidence is legally sufficient to support a

39
factfinder’s firm conviction or belief that Mother engaged in conduct that

endangered S.R.’s physical or emotional well-being. See Tex. Fam. Code Ann.

§ 161.001(1)(E); J.P.B., 180 S.W.3d at 573. Likewise, giving due deference to

the factfinder, we hold that the evidence is also factually sufficient to support the

jury’s finding that Mother engaged in conduct that endangered S.R.’s physical

well-being.13 We therefore overrule this part of Mother’s first issue.

VI. Best Interest

In the remainder of her first issue, Mother argues that there is legally and

factually insufficient evidence that termination of her parental rights is in S.R.’s

best interest.14

A. Applicable Law

There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and

permanent placement of the child in a safe environment is also presumed to be

13
Along with a best interest finding, a finding of only one ground alleged
under section 161.001(1) is sufficient to support a judgment of termination. In re
E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). We thus
need not address the sufficiency of the evidence under section 161.001(1)(O).
See id.; see also Tex. R. App. P. 47.1.
14
The Department argues that Mother has not preserved her legal and
factual sufficiency challenges to the best interest ground. We, however, do not
read Mother’s first, timely motion for new trial as narrowly as the Department.
We thus decline the Department’s invitation to find waiver under these
circumstances. See T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d
218, 220 (Tex. 1992) (listing five ways to preserve a legal sufficiency challenge);
see also Tex. R. Civ. P. 324(b)(2) (requiring a motion for new trial to preserve
complaint that evidence is factually insufficient).

40
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008).

Nonexclusive factors that the trier of fact in a termination case may use in

determining the best interest of the child include:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the
future;

(C) the emotional and physical danger to the child now and in the
future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote
the best interest of the child;

(F) the plans for the child by these individuals or by the agency
seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).

These factors are not exhaustive; some listed factors may be inapplicable to

some cases; other factors not on the list may also be considered when

appropriate. 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 factor will not support such a

finding. Id.

41
B. Analysis

Mother points to the strong presumption that keeping a child with her

parent is in the child’s best interest, and she argues that the evidence does not

present a causal connection between her conduct and the danger to S.R.’s

health or welfare. Mother further contends that termination of her parental rights

is based on speculation about possible harm to S.R. and is merely an attempt to

relocate S.R. to more educated, prosperous caregivers. Finally, Mother points to

evidence that S.R. was removed from her care after S.R. was hospitalized for

only one month despite testimony that the hospital works with other parents on

medical training for as long as a year. Again, however, Mother’s arguments

largely ignore contradictory evidence.

As before, we generally discuss without repeating the evidence at length.

S.R. is too young to have expressed any desire concerning the termination of

Mother’s parental rights, but the jury heard testimony that she is a friendly child

who bonds easily with others. Witnesses testified, however, that Mother and

S.R. are not bonded despite Mother’s unquestioned love for S.R. The lack of a

bond is somewhat explained by Mother’s limited access to S.R. given the

visitation schedule and physical distance between their homes. But Mother did

not seek additional time with S.R. when she was hospitalized, was not emotional

at the end of visitations, and did not contact the Department to inquire about

S.R.’s well-being between visitations. Mother also did not attend to S.R.’s needs

during the visitations or hospitalizations, requiring others to care for S.R. instead.

42
 Moreover, S.R. is medically fragile and requires constant, undivided

attention from caregivers qualified to provide appropriate and timely medical

intervention when necessary. Thus, she has unique physical needs and faces

unique dangers. If her trach were to become plugged, or if she or K.R. were to

pull out her trach, she could go into respiratory distress, and possibly die, within

minutes. Mother was repeatedly informed of the dangers that S.R. faces and the

need for Mother to be appropriately trained and attentive so that S.R. would not

be harmed, but Mother did not take the action necessary to regain custody

although it was made available to her by the hospital and Department. In

contrast, the Department plans to place S.R. for adoption, and two witnesses

reported that several people had expressed interest in adopting S.R.

Mother was nineteen at the time of trial and has two other children. She

also lives in a home that is not appropriate for S.R., and although Mother testified

that she would like to access a larger place through public assistance, she has

not taken the steps necessary to accomplish that goal. Mother has only been

employed once in her life, and that job lasted only eight days. J.R. is available to

assist Mother with her children and finances, but returning S.R. to Mother would

present additional challenges unique to S.R. that are complicated by also having

Mother’s other children in the same home.

While many of Mother’s hardships are attributable to her impoverishment

and were compounded by her third pregnancy (such as her inability to freely

travel to the hospital and visitations and her lack of employment), Mother did not

43
take action to avail herself of the services offered to her by the hospital, the

Department, and governmental authorities that might have helped her gravitate

toward better living conditions appropriate for S.R. See generally In re T.T.F.,

331 S.W.3d 461, 483–84 (Tex. App.—Fort Worth 2010, no pet.) (discussing

parent’s conduct, not best interest, but noting the difference between

impoverishment and failure to avail herself of available resources). At the time of

trial, however, S.R. would, if returned to Mother, live with as many as five other

people in a one-room, twelve foot by twelve foot apartment without a working

refrigerator or way of cooking food other than by microwave. As with the

endangerment ground discussed above, the jury unquestionably heard conflicting

evidence but could have determined that termination of Mother’s parental rights

is in S.R.’s best interest.

Viewing the evidence in the light most favorable to the verdict, we

conclude that the evidence is such that the factfinder could reasonably form a

firm belief or conviction that termination of Mother’s parental rights is in S.R.’s

best interest. See J.P.B., 180 S.W.3d at 573. We also conclude, viewing all the

evidence in a neutral light, that the factfinder could reasonably form a firm

conviction or belief that termination is in S.R.’s best interest. See H.R.M., 209

S.W.3d at 108. We therefore hold that the evidence of S.R.’s best interest is

legally and factually sufficient to support the judgment, and we overrule the

remainder of Mother’s first issue.

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 VII. Mother’s Remaining Issues

A. Alleged Violation of Constitutional Rights

Mother argues in her second issue that termination of her parental rights

under the circumstances of this case violates her constitutional right to due

process under the Fourteenth Amendment to the United States Constitution. 15

Specifically, Mother argues that termination of her parental rights under the facts

of this case would violate her due process rights because

[i]t is impossible to ignore that the harsh and irrevocable remedy of
termination of [Mother]’s parental rights was imposed not because of
parental conduct but due to her young age, lack of intelligence (in
the form of her perceived inability to quickly grasp specialized
medical skills), and her lack of financial resources, criteria that do
not justify termination under Texas law.

Mother’s argument, however, assumes that termination of her parental rights to

S.R. was based solely on a determination that termination would be in S.R.’s

15
Mother preserved her second issue by raising it in her second motion for
new trial. Although the trial court had, at the time Mother filed her second motion
for new trial, previously denied her first motion for new trial, Mother’s second
motion for new trial was filed within thirty days of the trial court’s judgment and
sought additional modification of the trial court’s judgment, meaning that it is a
permissible avenue to preserve complaints for appeal in that the substantive
content of the second motion for new trial qualifies as a motion to modify, correct,
or reform the judgment under rule of civil procedure 329b. See In re Brookshire
Grocery Co., 250 S.W.3d 66, 69–70, 72 (Tex. 2008) (orig. proceeding); see also
Tex. R. Civ. P. 329b. Specifically, the Brookshire court held that “a party whose
motion for new trial is overruled within thirty days of judgment may still file a
motion to modify, correct, or reform the judgment—provided it is filed within thirty
days of judgment—and thereby extend the trial court’s plenary power.” 250
S.W.3d at 72; see Tex. R. Civ. P. 329b(e), (g).

45
best interest16 and ignores that the Department presented clear and convincing

evidence that supports the jury’s determination that Mother engaged in conduct

that endangered S.R.’s physical or emotional well-being. See Tex. Fam. Code

Ann. § 161.001(1)(E).

The Texas Supreme Court has held that “[d]ue process requires the

application of the clear and convincing evidence standard of proof in parental

termination cases.” J.F.C., 96 S.W.3d at 263. In that regard, the family code

requires that there be clear and convincing evidence that the parent committed

one or more of the acts specifically set forth in family code section 161.001(1)

and that termination is in the child’s best interest. See Tex. Fam. Code Ann.

§§ 161.001, .206(a). Both elements must be established; termination may not be

based solely on the best interest of the child as determined by the trier of fact.

Boyd, 727 S.W.2d at 533. And Texas courts have repeatedly stated that the

family code codifies the due process standard. See, e.g., Perez v. Tex. Dep’t of

Protective & Regulatory Servs., 148 S.W.3d 427, 432 (Tex. App.—El Paso 2004,

no pet.) (“Codifying the constitutional requirement, the Family Code provides that

the burden of proof in termination cases is clear and convincing evidence.”).

16
For example, Mother cites Clay v. Tex. Dep’t of Human Resources, 748
S.W.2d 598, 601 (Tex. App.—Waco 1988, no writ); and In re R.E.W., 545 S.W.2d
573, 582 (Tex. Civ. App.—Houston [1st Dist.] 1976, writ ref’d n.r.e.) (both holding
that termination of the parent-child relationship may not be based only on the
child’s best interest and that there was insufficient evidence of statutory
endangerment).

46
Courts have also held that while a parent’s rights are of constitutional magnitude,

they are not absolute. See C.H., 89 S.W.3d at 26.

Given our holdings above that there is legally and factually sufficient

evidence under the clear and convincing evidence standard that Mother engaged

in conduct that endangered S.R.’s physical or emotional well-being and that

Mother did not take the steps to avail herself of the services offered to her by the

hospital, the Department, and governmental authorities that might have helped

her learn to appropriately care for S.R.’s medical needs and gravitate toward

better living conditions appropriate for S.R., we hold that termination of Mother’s

parental rights to S.R. was not based solely on Mother’s youth, impoverishment,

or alleged lack of intelligence and that it was instead based on sufficient, clear

and convincing evidence as required by the family code and the Due Process

Clause of the United States Constitution. Thus, under the circumstances of this

case, the termination of Mother’s parental rights to S.R. does not violate Mother’s

due process rights, and we overrule Mother’s second issue.

B. Appointment of the Department as Managing Conservator

In her third issue, Mother argues that the trial court erred by appointing the

Department as S.R.’s managing conservator. Her third issue, however, is

contingent upon success on her first issue. See In re D.N.C., 252 S.W.3d 317,

318 (Tex. 2008); Melton v. Tex. Dep’t of Fam. & Protective Servs., No. 03-08-

00168-CV, 2010 WL 668917, at *11 (Tex. App.—Austin Feb. 25, 2010, no pet.)

47
(mem. op.). Because we overruled her first issue, we likewise overrule her third

issue.

VIII. Conclusion

Having overruled each of Mother’s issues, we affirm the trial court’s

judgment.

ANNE GARDNER
JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: September 27, 2012

48