in the Interest of E.R., a Child , 555 S.W.3d 796 ( 2018 )

Affirmed and Opinion filed July 26, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00154-CV
IN THE INTEREST OF E.R., A CHILD
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 87661-F
OPINION
This accelerated appeal arises from a final decree in a suit seeking termination
of the parent-child relationship. See Tex. Fam. Code Ann. § 109.002(a-1) (West
2014 & Supp. 2017). Following a jury trial, the trial court terminated the parental
rights of appellant J.R. (Mother) with respect to her son, Enrique,1 as well as the
rights of Enrique’s unknown father. The court appointed the Texas Department of
Family and Protective Services (the Department) as Enrique’s managing
conservator.
1
We use pseudonyms or initials to refer to the children, parents, and other family members
involved in this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
On appeal, Mother challenges the sufficiency of the evidence to support the
jury’s finding that termination of Mother’s parental rights is in Enrique’s best
interest. Though she does not raise independent issues regarding the jury’s findings
on the predicate grounds for termination, within her best-interest argument she
contends the evidence was insufficient to support those findings. She also asserts the
trial court abused its discretion in naming the Department as Enrique’s managing
conservator.
We conclude legally and factually sufficient evidence supports the jury’s
verdict. The evidence supports findings that (1) Mother has a mental or emotional
illness or a mental deficiency that renders her unable to provide for Enrique’s
physical, emotional, and mental needs and that, in all reasonable probability, will
continue to render her unable to provide for Enrique’s needs until he turns eighteen;
and (2) termination of Mother’s parental rights is in Enrique’s best interest. We also
conclude the trial court did not abuse its discretion in naming the Department as
Enrique’s managing conservator. Therefore, we affirm the trial court’s judgment.
BACKGROUND
A. Removal
The Department received a referral on July 1, 2016, concerning one-day-old
Enrique. The referral indicated 38-year-old Mother was intellectually disabled and
the identity of Enrique’s father was unknown. Mother allegedly said she could not
return to her residence “due to her brother and nephew.” The person making the
referral was concerned Enrique did not have a safe home and Mother might not be
able to care for him adequately due to her intellectual disability.
Department investigator Jesse Dedman visited Mother and Enrique in the
hospital on July 2. Dedman characterized Mother as “confused” and noted Mother
said she did not know where she was going to go when she was discharged from the
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hospital. He spoke with Grandmother, Mother’s mother and guardian, who
confirmed Mother was not permitted to return to her home but said she did not know
why. Dedman discovered the Department had investigated Mother previously due
to allegations of negligent supervision and sexual abuse of her nephews. The
allegations were ruled “reason to believe.” Dedman’s primary concern was the
uncertainty of whether Mother and Enrique had a safe place to go. He ensured the
hospital would not release Enrique without knowing where he was going.
Department investigator Lesly Damian-Murray took over the case when
Enrique was one week old. A hospital social worker told Damian-Murray she “had
concerns” with releasing Enrique to Grandmother because Grandmother had
allowed Mother to “go out with guys” despite Mother’s intellectual disability. Over
the next few weeks, Damian-Murray learned Mother and Grandmother were living
in a car, did not have a safe home for Enrique, and did not know the identity of
Enrique’s father. At trial, though, Grandmother denied anyone from the Department
spoke with her about housing.
Enrique remained in the hospital until he was almost four weeks old. During
that time, he underwent hernia surgery and had a gastrostomy tube (also referred to
as a G-tube or feeding tube) placed. Hospital staff indicated Enrique would need
special care after discharge due to his feeding tube, among other things.
Grandmother and Damian-Murray agreed Mother would not be able to care for
Enrique due to Mother’s intellectual disability. Enrique’s nurses tried to teach
Grandmother to manage Enrique’s feeding tube, but she refused. She testified she
refused because she feared she would hurt Enrique by handling the tube improperly.
Because she had not found a suitable adult to care for Enrique, Damian-
Murray removed Enrique when he was discharged and placed him in a foster home.
The foster mother was a nurse specializing in pediatric gastroenterology, including
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feeding tubes.
The next day, the Department filed its petition for protection of a child, for
conservatorship, and for termination. The trial court signed orders naming the
Department as Enrique’s temporary sole managing conservator, appointing an
attorney ad litem for Mother, and setting a full adversary hearing. At the hearing,
Mother agreed to the Department’s continuing managing conservatorship of
Enrique. The trial court ordered Enrique to be removed from Mother’s care and
appointed the Department as his temporary managing conservator. The court signed
an order requiring Mother to comply with any service plan by the Department. The
service plan would identify the goals she needed to achieve and tasks and services
she needed to complete before Enrique could be returned to her care.
B. Trial
A jury trial was held in January 2018. Three Department employees, a
psychologist, Enrique’s foster mother, Grandmother, two of Mother’s siblings, and
a family friend testified. The documentary evidence includes Damian-Murray’s
affidavit concerning Enrique’s removal, Mother’s family service plan, several
pretrial orders, documents regarding Mother’s criminal history, and a psychological
evaluation of Mother.
1. Enrique
a. Feeding tube
Enrique’s foster mother, Molly, is a licensed vocational nurse (LVN) with
specialized knowledge regarding pediatric gastroenterology, including feeding
tubes. The trial court declared Molly to be an expert with regard to “treatment,”
“follow-up,” and “pediatrics and GI issues.”
As a newborn, Enrique was diagnosed with laryngomalacia, a softening of the
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tissues of the larynx (voice box). That condition prevented Enrique from swallowing
properly, which meant he could not receive his nutrition by mouth. As a result, the
hospital inserted a feeding tube into Enrique’s stomach. The tube was controlled by
a machine that nourished him on a continuous, slow drip.
The Department placed Enrique in Molly’s care when he was one month old.
At that time, he required almost constant care. Molly explained:
[W]e have to attach the feeding tube, an actual tube that connects. He
has a G-button—that’s gastrostomy tube—in his stomach. So, we have
to let the air back out, which this is frequently—when he first came, he
would cry a lot because he needed to let that gas out because he was
swallowing too much air. So, we would have to release that in order to
keep any food down. If we didn’t do that, he would usually vomit or be
crying because of pain.
Enrique could tolerate only one ounce of formula at a time, so he had to be
fed every two to three hours. Molly testified how difficult it was to feed him:
[W]hen he was one month, it was constant—constantly having to work
with him just to get in that one ounce. You put a little bit in and we
might have to let out some gas, try to put a little bit more in and let out
some gas.
And then the feeding machine itself, you have to clean out the feeding
bag, hook up the formula to the bag, set it to the proper setting that it’s
dripping in slowly, when he didn’t—when he could tolerate it. So, it
was pretty much every couple—two hours throughout the 24-hour
period. So, that could be up to 12 times a day.
And in between that, he may still be upset because his stomach was
hurting. So, we would have to feed him in between that. So, it was an
ongoing—an ongoing process.
Even Molly, who had the relevant expertise, found it challenging to take care
of Enrique in the beginning. Her husband and friend helped her. After several weeks,
Enrique was approved for 40 hours a week of in-home nursing care. He was five
5
months old before he regularly gained sufficient weight for his age.
Due to Enrique’s feeding tube, he has not been able to attend daycare. Molly
explained the daycare she used for her two sons will not accept high-risk children
with complex health issues.
Molly testified a person would need specialized training to care for a baby
with a feeding tube. In addition to knowing how to handle routine feedings, the
person would need to be able to address emergencies, such as correcting the
placement of the G-button if it gets dislodged. At the Department’s request, Molly
stood ready to teach Enrique’s family how to handle his feeding tube.
b. Progress through trial
Enrique’s ability to ingest nutrition improved significantly during the time he
was in Molly’s care. Roughly 18 months old at trial, Enrique could drink from a
bottle himself and ingest six to eight fluid ounces at a time. He was beginning to eat
solid foods. He received the rest of his nutrition overnight through his feeding tube.
The primary feeding challenge at the time of trial was preventing Enrique, a
curious and active toddler, from playing with his feeding tube and G-button. Molly
testified the formula can spill out and the G-button can become dislodged if Enrique
is able to access the tube.
At the time of trial, Enrique received regular treatment in seven specialties:
neurology, orthopedics, genetics, plastic surgery, otolaryngology, gastroenterology,
and nutrition. The neurologists were investigating what caused Enrique to hold his
breath for prolonged periods. The plastic surgeon monitored a hemangioma on his
head. Enrique saw an otolaryngologist for laryngomalacia. The gastroenterologist
monitored Enrique’s feeding tube and G-button, and the nutritionist monitored his
weight and adjusted his feedings if necessary. Molly took Enrique to all his medical
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appointments. A nurse usually accompanied them in case emergencies arose.
Enrique experienced some developmental delays but was catching up on his
milestones. Though he did not crawl until he was 11 months old, he was walking
independently at the time of trial. He could say around 10 words and communicate
well through sign language.
Leslie Hagemeier, a Department supervisor, and Molly both testified Enrique
is thriving in Molly’s home. Photos of Enrique at various ages show him smiling
and playing.
2. Mother
a. Intellectual disability
Psychological evaluation. Psychologist Frank Fee, Ph.D., evaluated Mother’s
“current intellectual abilities, emotional functioning, and parenting skills.” The
evaluation included interviews of Mother and Grandmother and administration of
several tests designed to assess Mother’s intellectual and emotional functioning.
Mother scored 52 on the Wechsler Abbreviated Scale of Intelligence, placing
her within the extremely low range of intelligence. She scored lower than the first
percentile on two other tests: the Verbal Comprehension Index, which measures
acquired knowledge, verbal reasoning, and attention to verbal information; and the
Perceptual Reasoning Index, which measures fluid reasoning, spatial processing,
attentiveness to detail, and visual motor integration. Her score of 16 out of 30 on the
Mini-Mental Status Examination indicates severe cognitive impairment. Fee
calculated Mother’s reading level to be that of a second grader. Taken together, these
results suggest Mother is generally incapable of reading and understanding most of
the materials associated with this case. Due to her low reading level and cognitive
impairment, Mother could not complete the two tests that measure emotional
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functioning. Fee attempted to administer the tests orally, but Mother did not
understand many of the words.
Fee asked Mother specific questions designed to elicit information about her
parenting style and parent-child attachment. Her answers were too vague to provide
meaningful information. For example, when asked what she thinks the most
important responsibilities of a parent are, Mother replied, “They should take care of
you like they are supposed to.” She could not elaborate with any details. Similarly,
when Fee asked her what would be the best thing she would do as a parent, she
answered, “Take care of them.” Mother reportedly did not know how to change a
diaper but said Grandmother would do it.
Based on his evaluation of Mother, Fee concluded in part:
As a parent, [Mother] does not appear [to] have even a basic
understanding of parenting strategies. Furthermore, she appears to lack
the capacity to develop such knowledge/skills. Given her
developmental history and extremely low intellectual capacity, she will
never be able to effectively parent a child.
....
[Mother] does not have the intellectual capacity to function as a parent,
and that status is not likely to improve given her lifelong intellectual
disability.
Other evidence about Mother’s intellectual disability. Grandmother believed
Mother’s intellectual disability is related to the seizures Mother suffered frequently
from infancy until age 17. According to Grandmother, Mother is too trusting and
needs constant supervision. Mother’s brother and sister both described Mother as
innocent and childlike. All three agreed Mother cannot care for Enrique by herself.
b. Service plan
The Department created a service plan for Mother. The plan set goals for
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Mother to: (1) address her own mental health needs; (2) demonstrate an ability to
put Enrique’s needs ahead of her own; (3) provide basic necessities such as food,
clothing, shelter, and medical care for Enrique; (4) actively cooperate to fulfill the
requirements of her service plan; and (5) assist in the identification of Enrique’s
father. So Mother could accomplish those goals, the plan required her to, among
other things:
1. identify any possible father of Enrique;
2. apply for mental health services;
3. initiate and participate in a psychiatric evaluation, a psychological
evaluation, and individual therapy, and follow all recommendations;
4. initiate and complete individualized parenting education;
5. provide clothing and basic necessities for Enrique throughout the case;
6. visit Enrique according to a schedule;
7. maintain a safe and stable home and provide the caseworker with a copy
of the lease agreement or ownership documents; and
8. attend all court hearings and permanency team meetings about Enrique.
Hagemeier testified Mother received services from the Gulf Coast Center, a
public agency that offers services for individuals with intellectual disabilities. She
said Mother participated in a psychological evaluation but did not follow the
evaluator’s recommendations, and she began but did not complete individual
therapy. According to Hagemeier, Mother visited Enrique “erratically” for the first
several months he was in Department custody. Mother reportedly did not complete
the other requirements of her service plan.
c. Relationship with Enrique
It was undisputed that Mother loves Enrique. Molly testified about Mother’s
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interaction with Enrique at visits:
She’s typically excited to see him. She loves him. But after maybe
about the first 15 minutes, she kind of passes him back. She never really
goes up to get him. We give him to her.
And then if he needs anything or if he cries or needs [a] diaper change
or feeding, he’ll get passed back to the nurse or [me].
Molly never saw Mother change Enrique’s diaper or feed him. Rather than
learning from Molly how to handle Enrique’s feeding tube, Mother, according to
Molly, “chose not to do that and went to the restroom for a half hour; and a CPS
worker that was there had to go find her.” When Molly showed Mother photos of
Enrique, Mother was at times “somewhat interested” and at times uninterested.
As he matured, Molly said, Enrique preferred to be around familiar people
during his visits with Mother:
[S]ince about when he was one, he’s gotten a little more—he wants to
be around people that are familiar. So, even though he’s active, he keeps
running back to the nurse or [me], who’s in the room. He doesn’t really,
I guess, want to interact that much.
d. Criminal history
In November 2015, a grand jury indicted Mother on eight counts of indecency
with a child as a criminal episode. The indicted offenses reportedly occurred on
several occasions in 2014 and 2015. Six counts alleged Mother intentionally or
knowingly, and with the intent to arouse or gratify her sexual desire, exposed her
genitals to one or more teenaged boys. The remaining two counts charged her with
touching the genitals of one of those boys. The indictment was later dismissed.
During her pregnancy, Mother spent more than six months in jail awaiting
trial for an October 2014 injury to a child, a third-degree felony. She pleaded guilty
to that offense in May 2016, about five weeks before Enrique was born. The trial
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court signed an order of deferred adjudication and placed Mother on community
supervision for four years.
3. Possible placements for Enrique
Enrique has lived with Molly, her husband, and their two sons for all but the
first month of his life. The record does not reflect whether Molly and her husband
plan to adopt Enrique.
Every witness who was asked agreed Mother cannot care for Enrique by
herself. Grandmother acknowledged she cannot take care of Enrique, either.
Hagemeier said the Department would be happy to place Enrique with a relative if
that person is trained to handle Enrique’s special needs. She believes it is in
Enrique’s best interest for the court to terminate Mother’s parental rights but keep
him with his family if possible. She testified she would continue to consider family
members as placements even if Mother’s parental rights were terminated. Two
relatives testified they were willing and able to care for Enrique: his maternal uncle
and his maternal aunt.
Uncle. Uncle is a father of 11 and a retired military combat medical specialist.
He did not know Mother was pregnant until after Enrique was born. The Department
conducted a home study on Uncle and approved him as a placement in the fall of
2016. However, for reasons not apparent from the record, Enrique was not placed
with Uncle.
Uncle typically drove Mother for her scheduled visits with Enrique. At one
visit, Molly began to teach him and Mother how to handle Enrique’s feeding tube.
Uncle joined Molly for roughly two of the 12 hours Enrique was in the hospital for
a laryngoscopy. Molly testified about Uncle’s demeanor at the hospital:
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Q. You did mention earlier that . . . [Enrique] was . . . undergoing a
procedure, and the uncle was there for two hours and you were there
for the whole time; is that correct?
A. Uh-huh; yes.
Q. . . . . [W]hy did you feel it was necessary to make that statement?
A. I guess just to say he checked in but wasn’t—I asked if he could
stay the whole time to kind of be a supporter for him, for [Enrique].
Q. And you didn’t know . . . whether or not he had an appointment
or anything.
A. Oh, I knew. He tells me everything, or he likes to talk about what
he does, so.
...
Q. Well, when he was there, did he seem concerned about
[Enrique]?
A. No. He was telling me about the barbecue he had to go to after.
In September 2017, Uncle withdrew himself as a possible placement for
Enrique because his wife had recently been diagnosed with cancer. At trial, Uncle
renewed his offer to take care of Enrique but admitted he had not communicated his
renewed offer to the Department. He said he knows “some” of Enrique’s medical
conditions.
Aunt. At the time of trial, Aunt worked the overnight shift as a cashier at a
gas station. She previously worked as a security guard for 15 years. She has no
children. She unequivocally expressed her willingness and desire to care for Enrique.
Aunt testified she was willing to do “everything,” including being trained to handle
Enrique’s special needs. The Department was conducting a home study on her at the
time of trial.
Aunt did not know much about Enrique before trial. She did not know Mother
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was pregnant, and she did not learn of Enrique’s existence until he was several
months old. Though she knew he had special medical needs, she did not know
Enrique cannot attend daycare. Aunt said her friends and family would help her take
care of Enrique.
4. Verdict and judgment
Question 1A of the jury charge asked whether Mother’s parental rights should
be terminated. The jury was instructed Mother’s rights could be terminated only if
it found by clear and convincing evidence that (1) termination would be in Enrique’s
best interest and (2) at least one of five stated grounds were true. The stated grounds
tracked section 161.001(b)(1)(D), (E), (L), and (O) and section 161.003 of the Texas
Family Code:
1. 161.001(b)(1)(E): [Mother] engaged in conduct or knowingly placed
the child with the persons who engaged in conduct which endangers the
physical or emotional well-being of the child; and/or
2. 161.001(b)(1)(D): [Mother] knowingly placed or knowingly allowed
the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child; and/or
3. 161.001(b)(1)(L): [Mother] has been convicted or has been placed on
community supervision, including deferred adjudication community
supervision, for being criminally responsible for the death or serious
injury of a child under the following sections of the Penal Code . . . :
. . . Section 22.04 (injury to a child, elderly individual, or disabled
individual); and/or
4. 161.001(b)(1)(O): [Mother] failed to comply with the provisions of a
court order that specifically established the action necessary for the
mother to obtain the return of the child who has been in the permanent
or temporary managing conservatorship of the [Department] for not
less than nine months as a result of the child’s removal from the parent
under Chapter 262 for the abuse and neglect of the child; and/or
5. 161.003: [Mother] has a mental or emotional illness or a mental
13
deficiency that renders her unable to provide for the physical,
emotional, and mental needs of the child, and the illness or deficiency,
in all reasonable probability, proved by clear and convincing evidence,
will continue to render the parent unable to provide for the child’s needs
until the 18th birthday of the child, and the [Department] has been the
temporary or sole managing conservator of the child of the parent for
at least six months preceding the date of the hearing on termination, and
the [Department] has made reasonable efforts to return the child to the
parent.
The jury unanimously found Mother’s parental rights should be terminated.2
The trial court incorporated the jury’s findings into its judgment of
termination. The trial court also appointed the Department to be Enrique’s managing
conservator. Mother timely appealed.
ANALYSIS
Mother raises two issues on appeal. First, she contends the evidence is
factually and legally insufficient to support a finding that terminating her parental
rights is in Enrique’s best interest. Second, she contends the trial court abused its
discretion in naming the Department as Enrique’s managing conservator.
I. Termination
A. Burden of proof and standards of review
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980);
In re J.E.M.M., 532 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). However, the child’s emotional and physical interests must not be sacrificed
to preserve parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
The Department bears the burden to prove the facts supporting termination by
2
The jury also found the parental rights of the unknown father should be terminated.
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clear and convincing evidence. “‘Clear and convincing evidence’ means the measure
or degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” Tex. Fam.
Code Ann. § 101.007 (West 2014).
The heightened burden of proof results in heightened standards of review for
evidentiary sufficiency:
 Legal sufficiency. We consider all the evidence in the light most
favorable to the finding to determine whether a reasonable fact finder
could have formed a firm belief or conviction that its finding was true.
We assume the fact finder resolved disputed facts in favor of its finding
if a reasonable fact finder could do so, and we disregard all evidence a
reasonable fact finder could disbelieve. In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002).
 Factual sufficiency. We consider and weigh all the evidence, including
disputed or conflicting evidence, to determine whether a reasonable fact
finder could have formed a firm belief or conviction that its finding was
true. We consider whether disputed evidence is such that a reasonable
fact finder could not have resolved that dispute in favor of its finding.
C.H., 89 S.W.3d at 25.
The fact finder is the sole arbiter when assessing the credibility and demeanor
of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re H.R.M., 209 S.W.3d
105, 109 (Tex. 2006) (per curiam). We may not second-guess the fact finder’s
resolution of a factual dispute by relying on disputed evidence or evidence the fact
finder “could easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003).
B. Inability to care for the child
The jury was presented with five statutory bases for termination of Mother’s
parental rights. The first four are subsections of section 161.001(b)(1) of the Family
Code; the fifth is section 161.003. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
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Only one statutory finding, along with the best-interest determination, is necessary
to support termination. We conclude the evidence is legally and factually sufficient
to support the finding on section 161.003. Accordingly, we do not review the
findings regarding section 161.001(b)(1). See id.
1. Legal standards
Parental rights may be terminated if the Department proves, by clear and
convincing evidence, the parent is unable to care for the child. Specifically, the
Department must prove:
1. the parent has a mental or emotional illness or a mental deficiency that
renders the parent unable to provide for the physical, emotional, and
mental needs of the child;
2. the illness or deficiency, in all reasonable probability, proved by clear
and convincing evidence, will continue to render the parent unable to
provide for the child’s needs until the 18th birthday of the child;
3. the department has been the temporary or sole managing conservator of
the child of the parent for at least six months preceding the date of the
hearing on the termination held in accordance with Subsection (c);
4. the department has made reasonable efforts to return the child to the
parent; and
5. the termination is in the best interest of the child.
Tex. Fam. Code Ann. § 161.003(a) (West Supp. 2017). The hearing on termination
may not be held earlier than 180 days after suit is filed. Id. § 161.003(c).
2. Application
161.003(a)(1): mental deficiency that renders Mother unable to provide
for Enrique’s needs. A mental illness or deficiency of a parent is not, in and of
itself, grounds for termination of the parent-child relationship. In re B.J.C., 495
S.W.3d 29, 36 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Liu v. Dep’t of
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Family & Protective Servs., 273 S.W.3d 785, 791 (Tex. App.—Houston [1st Dist.]
2008, no pet.). Evidence must support a determination that a parent’s mental illness
or deficiency prevents her from providing for her children now and in the future. See
B.J.C., 495 S.W.3d at 36; In re A.L.M., 300 S.W.3d 914, 928–29 (Tex. App.—
Texarkana 2009, no pet.).
With an IQ of 52, Mother has extremely low intelligence. She scored very low
on tests measuring her verbal comprehension and perceptual reasoning. A mental
status examination revealed severe cognitive impairment. She reads at a second-
grade level. Mother was unable to complete some psychological tests because she
could not read them and did not understand the questions when Dr. Fee attempted to
administer the tests orally.
Mother could not provide anything more than broad, vague statements about
her role as a parent. When asked what responsibility a parent has to her child, she
could say only, “They should take care of you like they are supposed to.”
Based on his evaluation, Dr. Fee concluded Mother does not appear to have
“even a basic understanding of parenting strategies” and she appears to “lack the
capacity to develop such knowledge/skills.” As a result of “her developmental
history and extremely low intellectual capacity,” he wrote, “she will never be able
to effectively parent a child.” Dr. Fee’s conclusions are clear and convincing
evidence that Mother has a mental deficiency that renders her unable to provide for
Enrique’s physical, emotional, and mental needs. See B.J.C., 495 S.W.3d at 37–38
(holding similar evidence of extremely low cognitive and reasoning abilities was
sufficient to satisfy section 161.003(a)(1)).
161.003(a)(2): deficiency will likely continue until Enrique turns 18.
“Section 161.003 does not require scientific certainty that [a parent’s] mental illness
[or deficiency] will continue until the children are eighteen; it only requires
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reasonable probability.” Salas v. Tex. Dep’t of Protective & Regulatory Servs., 71
S.W.3d 783, 791 (Tex. App.—El Paso 2002, no pet.). Dr. Fee opined Mother does
not have the intellectual capacity to function as a parent and is not likely to improve
given her lifelong intellectual disability. His opinion is clear and convincing
evidence that Mother’s mental deficiency probably will continue to render her
unable to meet Enrique’s needs until his 18th birthday. See B.J.C., 495 S.W.3d at 38
(recognizing psychologist’s testimony that parent’s intellectual disability was
“permanent and incapable of treatment” was among evidence satisfying section
161.003(a)(2)).
161.003(a)(3): Department was managing conservator for six months
before trial. A trial on termination must not have been held earlier than 180 days
after suit was filed, and the Department must have been Enrique’s managing
conservator for at least six months before trial began. See Tex. Fam. Code Ann. §
161.003(a)(3), (c).
Those requirements are satisfied in this case. The Department filed suit on
July 26, 2016. The trial court appointed the Department to be Enrique’s temporary
managing conservator the same day. The court signed orders on August 9, 2016, and
September 2, 2016, continuing the appointment. Trial on the petition for termination
began on January 16, 2018.
161.003(a)(4): Department made reasonable efforts to return Enrique to
Mother. Implementation of a family service plan by the Department is generally
considered a reasonable effort to return a child to the parent. In re A.L.H., 468
S.W.3d 738, 744 (Tex. App.—Houston [14th Dist.] 2015, no pet.). A family service
plan is designed to reunify a parent with a child who has been removed by the
Department. Liu, 273 S.W.3d at 795.
The Department created a service plan for Mother. The service plan alone is
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considered a reasonable effort to return Enrique to Mother. A.L.H., 468 S.W.3d at
744. Further, Hagemeier testified the Department’s original goal was to reunify
Enrique and Mother.
161.003(a)(5): Termination is in Enrique’s best interest. Texas courts
presume two conditions to be in a child’s best interest: (1) prompt, permanent
placement in a safe environment, Tex. Fam. Code Ann. § 263.307(a) (West 2014 &
Supp. 2017); and (2) remaining with the child’s natural parent. In re U.P., 105
S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
Courts may consider these non-exclusive factors, known as the Holley factors,
in a best-interest analysis: the desires of the child; the physical and emotional needs
of the child now and in the future; the physical and emotional danger to the child
now and in the future; the parental abilities of the persons seeking custody; the
programs available to assist those persons seeking custody in promoting the best
interest of the child; the plans for the child by the individuals or agency seeking
custody; the stability of the home or proposed placement; acts or omissions of the
parent that may indicate the existing parent-child relationship is not appropriate; and
any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976). This list of factors is not exhaustive, and evidence is not
required on all the factors to support a finding that termination is in the child’s best
interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012,
no pet.). The Family Code also identifies factors the court may consider in evaluating
a parent’s willingness and ability to provide the child with a safe environment. Tex.
Fam. Code Ann. § 263.307(b). Finally, evidence supporting the statutory predicate
of termination is relevant to the best-interest analysis. In re S.R., 452 S.W.3d 351,
366 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Enrique’s needs and desires. Enrique has significant medical needs due to
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his feeding tube. He is treated by specialists in seven medical fields. He requires
constant care. The complexity of managing his health and safety prevents him from
attending daycare.
Enrique is thriving in his foster home, the only home he has known. When a
child is too young to express his desires, the fact finder may consider that the child
has bonded with the foster family, is well cared for by them, and has spent minimal
time with a parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied); In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston
[14th Dist.] 2014, no pet.).
Mother’s parental abilities. As discussed above, the evidence shows Mother
is incapable of taking care of a child—particularly Enrique, who has special medical
needs. “The needier the child, the more able the parent must be.” A.L.M., 300 S.W.3d
at 919. Mother does not know how to handle Enrique’s feeding tube. When Molly
attempted to teach her, Mother left the room for 30 minutes until a Department
employee brought her back. Mother does not know how to change a diaper; she
relied on Molly or another adult to change Enrique’s diaper.
Resources available to assist Mother. Hagemeier testified Mother received
services from an agency that assists adults with intellectual disabilities. The record
does not reflect whether those services included parenting education. Such education
was a requirement of Mother’s service plan, but she did not complete it.
Grandmother testified she takes care of Mother, but also testified neither she nor
Mother can care for Enrique.
Proposed placement. Molly’s home and home life appear stable. However,
the record is silent as to whether or for how long Enrique will stay in his foster home
following termination of Mother’s parental rights. No evidence suggests the
Department plans to move him. Aunt also appears to be a stable placement. Unlike
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Molly, she does not know how to manage Enrique’s feeding tube, but she said she
would learn.
The lack of evidence about definitive plans for permanent placement and
adoption cannot be the dispositive factor in the best-interest analysis. Otherwise,
determinations regarding best interest would regularly be subject to reversal on the
sole ground that an adoptive family has yet to be located. C.H., 89 S.W.3d at 28.
“Instead, the inquiry is whether, on the entire record, a fact finder could reasonably
form a firm conviction or belief that termination of the parent’s rights would be in
the child’s best interest—even if the agency is unable to identify with precision the
child’s future home environment.” Id.
Acts or omissions and any excuses for them. Mother was indicted for eight
counts of indecency with a child, most of which charged her with exposing her
genitals to teenaged boys. The indictment was dismissed, though the record does not
reflect the reason for the dismissal. Further, Aunt testified the offense was “the other
way around,” meaning the boys sexually assaulted and/or acted indecently with
Mother. Though she is an adult, Mother’s diminished intellectual capacity supports
an inference that she lacked the ability to consent to sexual activity. See Tex. Penal
Code Ann. § 22.011(b)(4) (West 2011 & Supp. 2017) (an actor’s sexual conduct
with a person is without consent if the actor knows that “as a result of mental disease
or defect the other person is at the time of the sexual assault incapable either of
appraising the nature of the act or of resisting it”).
In 2016, Mother pleaded guilty to injuring a child in 2014. No further evidence
about the offense was offered into evidence.
3. Mother’s argument
Though Mother makes a blanket assertion of insufficient evidence to support
termination under section 161.003, she does not challenge the sufficiency of the
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evidence to support any element of that section. Rather, she appears to contend
section 161.003 is not a proper basis for termination because she does not seek to be
Enrique’s primary caregiver:
. . . . [Mother] has plead [by her counter petition regarding
conservatorship] to limit her own contact with [Enrique] and made a
conscious decision to allow him to be raised primarily by [Aunt]. All
the evidence the Department presented as it relates to this ground
assumed [Mother] would be primarily caring for [Enrique].
Mother cites no authority for her contention that section 161.003 applies only
if the parent seeks to be the child’s primary caregiver. By its plain language, section
161.003 applies to “a parent” without limitation. “[C]ourts should not insert words
into a statute except to give effect to clear legislative intent.” In re S.N., 287 S.W.3d
183, 188 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Laidlaw Waste
Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995)). We decline to infer
Mother’s suggested limitation because there is no indication the Legislature meant
to restrict application of section 161.003 to a parent seeking managing
conservatorship or other role as primary caregiver.
C. Conclusion on termination
The evidence supports findings that: (1) Mother has a mental deficiency that
prevents her from meeting Enrique’s physical, emotional, and mental needs; (2) the
deficiency will probably continue to render her unable to meet Enrique’s needs until
his 18th birthday; (3) the Department was Enrique’s managing conservator for at
least six months before the termination hearing; (4) the Department made reasonable
efforts to return Enrique to Mother; and (5) termination is in Enrique’s best interest.
Considering all the evidence in the light most favorable to those findings, we
conclude the jury reasonably could have formed a firm belief or conviction that
termination is warranted under Family Code section 161.003. Further, in light of the
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entire record, we conclude the disputed evidence the jury could not reasonably have
credited in favor of its findings is not so significant that the jury could not reasonably
have formed a firm belief or conviction that termination is warranted under section
161.003. Accordingly, the evidence is legally and factually sufficient to support
termination. We overrule Mother’s first issue.
II. Managing conservatorship
In her second issue, Mother contends the trial court abused its discretion in
appointing the Department, rather than Aunt, to be Enrique’s managing conservator.
We review a trial court’s appointment of a non-parent as sole managing conservator
for abuse of discretion and reverse only if we determine the appointment is arbitrary
or unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007).
A parent shall be named a child’s managing conservator unless, as relevant
here, the court finds that such appointment would significantly impair the child’s
physical health or emotional development. See Tex. Fam. Code § 153.131(a) (West
2014). The trial court made this finding, and it also found appointing the Department
as managing conservator was in Enrique’s best interest.
When the parents’ rights are terminated, as here, section 161.207 of the
Family Code controls the appointment of a managing conservator. See In re I.L.G.,
531 S.W.3d 346, 356–57 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
Section 161.207 states:
If the court terminates the parent-child relationship with respect to both
parents or to the only living parent, the court shall appoint a suitable,
competent adult, the Department of Family and Protective Services, or
a licensed child-placing agency as managing conservator of the child.
Tex. Fam. Code § 161.207(a) (West 2014 & Supp. 2017). The appointment may be
considered a “consequence of the termination.” L.G.R., 498 S.W.3d at 207.
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Because the trial court terminated both parents’ rights, its conservatorship
decision in this case was governed by section 161.207, not section 153.131. See
I.L.G., 531 S.W.3d at 357; L.G.R., 498 S.W.3d at 207. Accordingly, the trial court
was required to appoint the Department or another permissible adult or agency as
Enrique’s managing conservator. Tex. Fam. Code Ann. § 161.207.
Mother offers no argument regarding how the trial court abused its discretion
in naming the Department, rather than Aunt, to be Enrique’s managing conservator.
Instead, she “incorporates her argument as stated above as it relates to best interest
and again reiterate [sic] that [Aunt] was willing to care for [Enrique] and supervise
[Mother] at all times.”
Mother’s best-interest argument challenged evidentiary sufficiency. Our
review of a conservatorship decision is for abuse of discretion, not sufficiency of the
evidence. J.A.J., 243 S.W.3d at 616 (termination finding is reviewed for legal and
factual sufficiency, but conservatorship finding is reviewed for only abuse of
discretion). We cannot say the trial court’s decision to appoint the Department, an
agency statutorily identified as an eligible managing conservator, was arbitrary or
unreasonable. See id. We overrule Mother’s second issue.
CONCLUSION
We affirm the trial court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Busby, Brown, and Jewell.
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