in the Interest of L.E.R., a Child

Reversed and Rendered in Part and Affirmed in Part and Majority and
Concurring Opinions filed April 12, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00590-CV
IN THE INTEREST OF L.E.R., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2018-03438J
MAJORITY OPINION
Appellant J.M.C. (“Mother”) appeals the trial court’s final order of
termination of her parental rights to her child L.E.R. (“Lori”).1 The trial court
terminated Mother’s parental rights on the predicate grounds of endangerment,
constructive abandonment, and failure to comply with the service plan for
reunification. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (N), and (O). The
trial court also determined that termination of Mother’s parental rights was in
Lori’s best interest. See id. § 161.001(b)(2). In four issues, Mother challenges the
1
We use pseudonyms or initials to refer to the child, 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).
legal and factual sufficiency of the evidence to support the trial court’s findings on
the predicate grounds and the best interest finding. We reverse and render in part
and affirm in part.
BACKGROUND
This case began because the Department of Family and Protective Services
(the “Department”) received a referral on June 15, 2018, alleging that during Lori’s
delivery Mother was aggressive and erratic and assaulted nurses. The referral
alleged that Mother had “pressured speech,” “demonstrated poor impulse control,
and delayed responses.”2 It alleged that Mother neither held Lori nor bonded with
her since birth; and Mother’s primary care physician expressed concern about
Mother “taking on the responsibility of caring for an infant child without first
receiving a psychological evaluation as soon as she delivered the child.”
Because Mother was uncooperative during the investigation, “refused to
participate in ongoing CPS services,” and there was concern for Lori’s safety, the
Department filed an Original Petition for Protection of a Child for
Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship on June 21, 2018. The Department sought temporary managing
conservatorship of Lori; it also sought conservatorship and/or parental termination
if reunification with Lori’s parents was not suitable. The trial court granted the
Department managing conservatorship of Lori. On July 7, 2018, Lori was placed
with a foster parent, Mary.
After a full adversary hearing on July 12, 2018, the trial court appointed the
Department temporary managing conservator of Lori and found, among other
things, that (1) removal was in Lori’s best interest; (2) there is a “continuing
2
While many of the facts giving rise to this case appear to be conclusory, we are limited to
examining the arguments and objections made by Appellant at the trial court and on appeal.
2
danger to the physical health or safety of the child and for the child to remain in the
home is contrary to the welfare of the child;” (3) “reasonable efforts consistent
with the child’s health and safety have been made by the Department to prevent or
eliminate the need for removal of the child;” and (4) “appointment of the parent or
parents as managing conservator of the child is not in the best interest of the child
because the appointment would significantly impair the child’s physical health or
emotional development.”
The Department filed a Family Service Plan on August 3, 2018, providing
the following service plan goals: Mother will (1) “show the ability to parent and
protect her daughter;” (2) “actively participate in therapy to understand how her
health can impact her current parenting style;” and (3) “demonstrate ability to
protect the child from harm.” The plan also set forth a list of tasks and services
Mother needed to complete:
• Participate in and complete individual therapy, and complete any
recommended family or group therapy;
• Cooperate with all tasks required by the agency;
• Comply with all visitation guidelines as arranged by the caseworker;
• Attend all court hearings, permanency conferences, and scheduled family
visits;
• Complete parenting classes;
• Maintain stable employment or income benefits for six months;
• Acquire and maintain stable housing for more than six months; housing must
be safe, clean, free of hazards, and it must have operating utilities;
• Participate in and complete a psycho-social assessment and follow all
3
recommendations which may include a psychiatric evaluation, individual
therapy, family therapy, and/or group therapy; and
• Participate in a psychological evaluation and follow all recommendations
from the service provider.
After a status hearing on August 7, 2018, the trial court signed an order
finding, among other things, that (1) Mother had appeared in person and through
her attorney at the hearing; (2) Mother’s service plan is reasonable; (3) the goal of
the service plan is to return Lori to Mother, and the plan adequately ensures that
reasonable efforts are being made to enable Mother to provide a safe environment
for Lori; (4) the plan is reasonably tailored to address any specific issues identified
by the Department; (5) Mother reviewed and understood the service plan, Mother
has been advised that unless she is willing and able to provide Lori with “a safe
environment, even with the assistance of a service plan, within the reasonable
period of time specified in the plan, her parental and custodial duties and rights
may be subject to restriction or to termination or [Lori] may not be returned to
her;” and (6) Mother signed the plan. The trial court approved the service plan and
made it an order of the court.
The Department filed a second service plan on September 10, 2018,
expressing concerns that Mother had not started any of the requested services in
the first plan. The second plan is identical to the first service plan except that it
added to the list of tasks and services that Mother was required to complete a
psychiatric evaluation and to “follow all recommendations which may include a
medicine regiment, individual therapy, family therapy, and/or group therapy.”
On June 13, 2019, Father executed an affidavit voluntarily relinquishing his
parental rights to Lori. On October 14, 2019, Mary (the foster parent) filed a
Petition in Intervention in Suit Affecting the Parent-Child Relationship, requesting
4
that the court (1) name her as Lori’s sole or joint managing conservator; (2) grant
her an order of adoption of Lori; and (3) terminate Mother’s and Father’s parental
rights to Lori. Based on Father’s relinquishment of parental rights, the trial court
signed an order terminating Father’s parental rights to Lori on January 26, 2021.
In its August 25, 2021 permanency report to the court, the Department
recommended to the court that it be dismissed as temporary managing conservator
of Lori and that the foster parent adopt Lori. On September 10, 2021, a bench trial
was held to terminate Mother’s parental rights.
Five witnesses testified at trial: the Department’s investigation caseworker
Inger Smith (nee Barnaby), the Department’s conservatorship caseworker Lana
Ford, Child Advocates, Inc. representative Brittany Swain, Lori’s foster mother
Mary, and Lori’s adult half-sister Alexis. Even Father came to trial and was ready
to testify. Mother did not appear at trial, even though she was given the option to
appear in person or via Zoom. Before any testimony, the trial court admitted into
evidence, among other things, copies of the second family service plan, Mother’s
drug screening results, Smith’s affidavit, the Child Advocates report, permanency
reports, Mother’s psychological evaluation, and Mother’s psychiatric evaluation.
We begin with a recitation of the testimony and evidence.
Caseworker Smith
Smith testified that she “received an intake” on June 15, 2018, for neglectful
supervision of Lori, who was still in the hospital at the time. The referral included
allegations that Mother was “aggressive during delivery,” Father “denied that the
child was his and also the mother’s behavior was described as being just erratic
and that she was . . . possibly using illicit drugs.” Smith testified that during her
investigation the “nursing staff said that [Mother] actually was kicking and
assaulted the nurses during delivery.” The nurses were concerned about how
5
Mother “treated the baby” after she was born because Mother “actually said she
wanted — once the baby was placed on her stomach during delivery, which is a
normal practice, she stated to get the baby off her immediately.” And after Lori’s
birth, Mother did not bond with her.
Further, Smith’s investigation (which she also memorialized in an affidavit)
confirmed that Mother was very aggressive. “There was a situation where during
delivery she was kicking so much that her IV came apart; and when the IV came
apart, blood was gushing everywhere.” The hospital staff told Smith that “it was
abnormal behavior for a person. They had never seen something like that.”
However, Mother denied “behaving erratically during the delivery of [Lori] by
physically assaulting the nurses.” Mother told Smith that the nursing staff did not
administer pain medication promptly and that the medication was not administered
until after the baby’s head was exposed during delivery. Mother claimed “she was
only reacting to the pain.” Mother told Smith that when the nurse placed Lori on
Mother’s chest, Mother was afraid of dropping Lori because “she felt numb, so she
demanded the child be removed immediately.”
Smith testified that she observed interactions between Mother and Father in
the hospital room. Smith described it as “kind of an abusive situation. [Mother]
was speaking to [Father] verbally in a way that, you know, you shouldn’t speak to
a person. They weren’t getting along very well.” Smith’s investigation revealed
that because of Mother’s behavior, an “MAT” evaluation was ordered after she
delivered Lori.3 According to the evaluation, Mother “demonstrated delays in
responses, poor focus, poor impulse control, delay in processing information, and
poor attention.” Smith testified that she spoke to Mother’s nurse practitioner, who
3
Nothing in the record explains what an “MAT evaluation” is, why it was ordered, under what
authority it was ordered, or by whom it was performed.
6
“stated that before the child would ever be taken home, [she] recommended that a
psychiatric evaluation be done on” Mother.
After she spoke at the hospital with medical personnel, Mother, and Father,
Smith visited the home in which Mother and Father lived. Smith testified that “the
home was not prepared to receive a child. The floor was missing. The air-
conditioning was not working. It was during the summertime so it was extremely
warm in the home.”
On June 18, 2018, while Lori was still in the hospital, Smith contacted
Mother’s primary care physician to inquire whether he had any concerns regarding
Mother’s ability to care for Lori. Mother’s physician recommended that she
should “be cleared by a psychiatrist, and receive a full psychiatric evaluation
before being allowed to care for” Lori. Smith testified that she contacted Mother
that same day to ask if Mother had a recommendation regarding Lori’s placement
because the Department would not return Lori to her or Father. Mother
recommended her brother, Steven, and sister-in-law, Susan. The Department
approved placement with Steven and Susan after conducting a background check
for any criminal history and CPS (Child Protective Services) history. When Smith
went to Mother’s and Father’s home on June 19, 2018, to have a meeting and
review the paperwork, only Father was present. Smith contacted Mother but
Mother refused to come home for the meeting and stated that “she did not know
what she was going to do with” Lori, she did not want Steven and Susan to be
Lori’s caregivers, and she was thinking about giving Lori up for adoption.
The next day, Smith again contacted Mother about a relative placement for
Lori but Mother yelled, screamed, and stated she needed more time. Mother stated
that she needed a couple of weeks before she could make a decision and she would
not sign anything that would allow Lori to be placed with relatives despite
7
knowing the hospital intended to discharge Lori. Lori was placed with Steven and
Susan but was shortly thereafter removed following an anonymous call from a
relative. The relative was at a family function with Steven and Susan, and Susan
was intoxicated, and apparently told a story to the crowd that earlier that morning
Lori was sleeping on Steven “and during the time the baby fell on the floor,” but
Steven did not wake up to notice that Lori was on the floor. Susan woke up and
picked up Lori. While talking about the incident, Susan “was laughing and thought
it was very funny that no one woke up to see that the child was on the floor.”
Smith testified that the anonymous caller also told her that Steven and Susan kept
Lori “in an infant bathing suit in the sweltering heat, w[ere] pulling her up by her
arms and w[ere] just not appropriate with the care with the child.”
As a result of the call, Smith spoke to Mother and testified that Mother
admitted knowing that Steven and Susan had a CPS history (but gave no further
details about Mother’s knowledge about the extent of Steven’s and Susan’s history
with CPS, and further testified that the Department did not previously find their
CPS history because the earlier case was filed under Susan’s maiden name, and
that the allegations behind the charges were unable to be determined). Smith
removed Lori from Steven’s and Susan’s home on July 6, 2018, and placed Lori
the next day in foster mother Mary’s care. Lori lived with Mary since her removal
and was still in her care at trial.
Smith testified that she investigated other possible family placements.
Father had a 19-year-old son who had similar health issues as Father; and the only
other person Mother recommended for Lori’s placement did not pass CPS
background checks. Smith testified that during the time she was assigned to the
case, Mother was not cooperative and Smith never found the parents’ home to be
safe or stable. Although Smith could not recall if Mother had prior CPS history,
8
Smith testified that Mother had APS (Adult Protective Services) history for
allegedly attacking Father.
Caseworker Ford
Ford, who was the caseworker assigned to the case after Lori was placed
with Mary, testified at trial and requested on behalf of the Department that the trial
court terminate Mother’s parental rights on grounds of endangerment, constructive
abandonment, and failure to comply with the service plan for reunification and in
the best interest of Lori. Ford explained why she believed that Mother had
endangered Lori. Ford testified that Mother has a tendency to be violent and Ford
is concerned about the safety in the home. Ford received several reports of
domestic violence in the home and there have been “a lot of calls to law
enforcement to [the] home” as recently as August 24, 2021.4 According to Ford,
Father has told her that Mother is violent. Every month, Father expressed concern
in conversations with Ford about Mother’s state of mind, his safety, and the safety
of Lori because he did not think Mother could care for Lori. Father has repeatedly
tried to get Mother to leave his home and even called APS to “get some relief from
her abusive behavior,” but Mother refused to leave.
Ford testified that she had discussions with Mother about “her violent
nature” but Mother was unreceptive to Ford’s efforts to try to find a solution.
Every time Ford offered Mother another place to live, she refused. For example,
Ford offered Mother a place in a shelter at which she would “work programs” and
then “have her own place,” but Mother refused. Ford testified that it is very hard
for her to work with Mother because, if Mother does not get or hear what she
wants, “she’s very aggressive with [Ford] and then at that time, she’ll stop talking
to [Ford].” Mother only called Ford when she was upset with Father. Mother
4
The trial date below was September 10, 2021.
9
would claim that Father was harming her and that she was afraid for her life, but
when Ford asked Mother to move out so she can be in a safe environment, Mother
did not want to leave.
Ford believed that an unsafe home endangered Lori. Ford was also
concerned about Mother’s lack of visitation with Lori and Mother’s behavior
during the visits she actually joined. Mother would get upset with Lori during
face-to-face visits and would just walk away, leave, and not attend to Lori’s needs.
Ford testified that Mother was “involved with [Lori] only when she fe[lt] that
[Lori] is attentive to her;” otherwise, Mother would leave.
Ford testified that Mother never stated she wanted to see Lori. It was Father
who always “made sure and scheduled all” the visits with Lori “and Mother would
show up and then when [Father] relinquished, [Ford] would contact [Mother]
directly”, but Mother would say she needed to talk to Father “to see when was a
good time and then afterwards she just stopped responding to” Ford. Ford testified
that she had Zoom meetings with Mother from March 2020 to August 2020, when
Mother “stopped participating.” Ford stated that Mother’s last visit was on August
27, 2020, but Mother did not show her face or respond. Thereafter, Ford called
Mother every month to try to schedule a visit, but Mother never called back or ever
showed any interest in seeing Lori. Ford further testified that Mother never made a
child support payment to Mary; Mother only gave a stuffed animal to Lori and two
outfits that were too small.
Ford expressed concern that Mother failed to comply with the tasks,
services, and goals set forth in the service plan Ford drafted for Mother. Ford
testified that Mother signed and received a copy of the service plan. Mother
completed a psychological evaluation, a psychiatric evaluation, parenting classes,
and individual therapy; she also showed Ford a disability reward letter to prove
10
stable income. However, Mother neither completed additional therapy in June
2020 nor family therapy as required by her service plan. Ford testified that Mother
and Father “could not even start that service because of the arguing within the
home.” Ford stated that she told Mother at a permanency hearing that Mother
should complete additional therapy. Mother was required to provide stable
housing but failed to do so. Ford testified that, in addition to not completing the
required tasks, Mother did not achieve the goals of the service plan and (in her
opinion) could not “provide for the ongoing safety and well-being of” Lori.
Ford testified that she discussed every item on the service plan with Mother.
She could not “put a number on” how many times she discussed the plan with
Mother, but stated that every time she spoke to Mother, she would “definitely go
over the plan” with her. Ford stated that she spoke to Mother at least twice a
month. Ford also offered to meet with Mother every month. Mother last
responded to Ford’s request to meet in August 2021, stating she had a stomach bug
and that she was “a little upset because a good friend of mine has cancer and she
passed away.” Ford claimed that Mother’s statements sounded like an excuse to
not meet with Ford.
Ford expressed concern that Mother was not taking her Xanax prescription
regularly, causing her to become “quite agitated,” anxious, and very aggressive.
Ford testified that Mother told her Mother had been diagnosed with Huntington’s
disease; Huntington’s disease5 does not have a cure and is progressive in nature.
5
“Huntington’s disease is a rare, inherited disease that causes the progressive breakdown
(degeneration) of nerve cells in the brain. Huntington’s disease has a broad impact on a person’s
functional abilities and usually results in movement, thinking (cognitive) and psychiatric
disorders.” https://www.mayoclinic.org/diseases-conditions/huntingtons-disease/symptoms-
causes/syc-20356117. “No treatments can alter the course of Huntington’s disease. But
medications can lessen some symptoms of movement and psychiatric disorders. And multiple
interventions can help a person adapt to changes in his or her abilities for a certain amount of
time.” https://www.mayoclinic.org/diseases-conditions/huntingtons-disease/diagnosis-
11
Mother was also diagnosed with adjustment disorder with anxiety.
With regard to Lori’s life since her placement with Mary, Ford testified that
Lori was “really flourishing.” Ford stated Lori is in pre-kindergarten, she is active
and friendly, she is learning how to swim and speak Spanish, she has “a very good
routine,” and she is “very much” bonded with Mary and Mary’s family. Lori also
visits with her half-sister and half-brother—Mother raised neither of her two other
children, and Lori’s half-siblings and Mother’s family desire for Lori to remain
with Mary. Ford testified that Lori would not maintain a relationship with her half-
siblings if she were to be returned to Mother because Mother does not have a
relationship with her children and her family. Ford also stated that Mary has a
stable job and provides for Lori’s emotional needs. Ford confirmed that it is also
Father’s desire for Lori to remain with Mary.
Child Advocates Representative Swain
Swain testified that Child Advocates has been involved in Lori’s case since
August 2018, and she is the child advocate for Lori. Swain stated that termination
of Mother’s parental rights would be in Lori’s best interest because: Lori is in a
safe and stable environment; Lori’s placement with Mary “has been meeting all of
her needs, not just basic, [but] exceeding her needs”; Lori is extremely happy and
her life is structured; there is no domestic violence in Mary’s home; Mary’s home
is well kept; Lori is “just very happy and she’s thriving;” Lori recognizes Mary as
her family; Lori has made “healthy developmental progress” in Mary’s care; and
there is a bond between Lori and Mary. Swain testified that she has no
reservations about Mary and her family. According to Swain, Mary plans to adopt
Lori which is in Lori’s best interest.
treatment/drc-20356122.
12
Foster Mother Mary
Mary testified that Lori has lived with her for most of Lori’s life and that she
plans to adopt Lori if the court terminates Mother’s parental rights. Mary stated
that she developed relationships with Lori’s biological family, in particular with
Lori’s half-siblings, Alexis and Stan, and Lori’s step-grandmother (Mother’s
stepmother who helped raise Mother). Mary testified that Mother has not had any
visitation with Lori in well over a year and asked the court to terminate Mother’s
parental rights.
Half-sister Alexis
Finally, Alexis testified at trial that it would be in Lori’s best interest to
terminate Mother’s parental rights because Mother “is abusive and neglectful so —
which is not a good environment for children and I’ve seen [Mary] with L[ori] and
she is a good environment.” Alexis explained that she had been raised by her
grandparents, although Mother “was technically there.” According to Alexis,
Mother “just didn’t seem very interested unless, you know, it was — she was
trying to make a statement somehow.” It was her grandparents who provided
Alexis emotional and financial support. Alexis did not believe that Lori would be
safe if she were to be returned to Mother. Based on past experience with Mary,
Alexis believed that she would have a positive relationship with Lori if the court
terminates Mother’s parental rights. Alexis was doubtful that she would continue
to have a positive relationship with Lori if Lori were to live with Mother. Alexis
also mentioned that Mother wanted to move in with Alexis so Alexis could take
care of both Mother and Lori, but Alexis made clear she did not “want to do that”
because she “lived with [Mother] enough.”
On September 28, 2021, the trial court signed a Final Decree for
Termination, finding by clear and convincing evidence that termination of
13
Mother’s parental rights was in Lori’s best interest and warranted under three
subsections of section 161.001(b)(1) of the Family Code: (D) (endangerment by
environment), (N) (constructive abandonment), and (O) (failure to comply with
court-ordered plan for reunification with the child). See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (N), and (O). The trial court appointed the Department as Lori’s
sole managing conservator. Mother filed a timely appeal.
ANALYSIS
Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section
161.001(b)(1); and (2) termination is in the best interest of the child. Tex. Fam.
Code Ann. § 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
Mother raises four issues on appeal, challenging the legal and factual sufficiency of
the evidence supporting the trial court’s (1) findings under sections
161.001(b)(1)(D), (N), and (O); and (2) best interest finding.
I. Standards of Review
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re J.E.M.M., 532 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). However, a child’s emotional and physical interests should not be sacrificed
to preserve parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due to the severity and permanency of the termination of parental rights, the
law imposes a heightened burden of proof, requiring clear and convincing
evidence. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265-
66 (Tex. 2002). “Clear and convincing” 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
14
truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007.
This heightened burden of proof results in heightened standards of review
for evidentiary sufficiency. In re V.A., 598 S.W.3d 317, 327 (Tex. App.—Houston
[14th Dist.] 2020, pet. denied). For a legal sufficiency challenge, we consider all
of the evidence in the light most favorable to the finding to determine whether a
reasonable factfinder could have formed a firm belief or conviction that its finding
was true. In re J.F.C., 96 S.W.3d at 266. We assume the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so, and we
disregard all controverting evidence a reasonable factfinder could disbelieve. Id.
For a factual sufficiency challenge, we consider and weigh all the evidence,
including disputed or conflicting evidence, to determine whether a reasonable
factfinder could have formed a firm belief or conviction that its finding was true.
In re C.H., 89 S.W.3d at 25. We examine whether disputed evidence is such that a
reasonable factfinder could not have resolved that dispute in favor of its finding.
Id.
The factfinder is the sole arbiter when assessing the credibility and
demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). “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 V.A., 598 S.W.3d at 328 (quoting In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003)).
II. Predicate Findings
The trial court made predicate termination findings pursuant to Texas
Family Code section 161.001(b)(1)(D), (N), and (O). In her first, second, and third
issues, Mother challenges the legal and factual sufficiency of the evidence to
15
support the trial court’s findings on these predicate grounds.
Only one predicate finding under section 161.001(b)(1) is necessary to
support a judgment of termination when there also is a finding that termination is
in the child’s best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re
V.A., 598 S.W.3d at 327. Due process requires that when a parent has raised the
issue of insufficiency of the evidence to support the trial court’s findings under
section 161.001(b)(1)(D) or (E) of the Family Code, an appellate court must
address one of those endangerment findings to ensure a meaningful appeal. In re
N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam); In re P.W., 579 S.W.3d 713,
720 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Due process and due-
course-of-law requirements also mandate that an appellate court detail its analysis
for an appeal of termination of parental rights under section 161.001(b)(1)(D) or
(E) of the Family Code. In re P.W., 579 S.W.3d at 720. In this case, Mother
challenges the trial court’s finding of endangerment; we, therefore, address the trial
court’s endangerment finding under section 161.001(b)(1)(D).
A. Predicate Finding under Section 161.001(b)(1)(D)
In her first issue, Mother challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding of endangerment under subsection D.
Termination under subsection D requires clear and convincing evidence that
the parent “knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of
the child.” Tex. Fam. Code Ann. § 161.001(b)(1)(D). “Endanger” means to
expose a child to loss or injury or to jeopardize a child’s emotional or physical
health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam); In re V.A.,
598 S.W.3d at 328. Endangerment encompasses “more than a threat of
metaphysical injury or the possible ill effects of a less-than-ideal family
16
environment,” but it is not necessary that the conduct was directed at the child or
that the child actually suffered injury. In re M.C., 917 S.W.2d at 269.
Endangerment under subsection D focuses on evidence related to the child’s
environment, i.e., the acceptability of living conditions as well as the parent’s
conduct in the home. In re C.W.M.P., No. 14-20-00571-CV, 2021 WL 244865, at
*5 (Tex. App.—Houston [14th Dist.] Jan. 26, 2021, pet. denied) (mem. op.); In re
S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). A
child is endangered when the environment creates a potential for danger and the
parent is aware of the danger yet consciously disregards it. In re V.A., 598 S.W.3d
at 328. Inappropriate, abusive, or unlawful conduct by a parent or other persons
who live in the child’s home can create an environment that endangers the physical
or emotional well-being of a child as required for termination under subsection D.
In re C.W.M.P., 2021 WL 244865, at *5; In re S.R., 452 S.W.3d at 360.
Parental rights may be terminated under subsection D based on a single act
or omission. In re C.W.M.P., 2021 WL 244865, at *5; In re V.A., 598 S.W.3d at
329. In evaluating endangerment under subsection D, the court has to consider the
child’s environment before the Department obtained custody. In re C.W.M.P.,
2021 WL 244865, at *6; In re V.A., 598 S.W.3d at 329. Subsection D is not a basis
for termination of parental rights if the parent was unaware of the endangering
environment. In re V.A., 598 S.W.3d at 329. There must be clear and convincing
evidence of endangerment as well as of the parent’s awareness of the endangering
environment. Id.
Mother contends the judgment of the trial court terminating her parental
rights under subsection D should be reversed because Lori was never in Mother’s
possession and was removed from Mother and Father at the time of birth while still
in the hospital. Mother argues that the “relevant time frame in a subsection (D)
17
case to determine whether there is clear and convincing evidence of endangerment
is before” a child’s removal by the Department. Therefore, Mother argues,
“[b]ecause Lori was never in Mother’s custody, it stands to reason that she could
not have been responsible for knowingly placing or knowingly allowing the child
to remain in conditions or surroundings which endangered the child’s physical or
emotional health.”
The Department counters that the trial court’s finding that Mother’s parental
rights to Lori should be terminated under subsection D is supported by legally and
factually sufficient evidence. In particular, the Department points to the following
evidence in support of its contention: (1) Mother assaulted nurses during Lori’s
delivery and jumped in the hospital bed which caused her IV to be dislodged; (2)
Mother did not bond with Lori; (3) Father denied paternity and stated he would
commit suicide if he lost his eye sight completely; (4) Mother did not eat a healthy
diet during pregnancy and did not receive prenatal care; (5) Mother recommended
placing Lori with relatives who had CPS history; (6) there was domestic violence
in Mother’s and Father’s home; (7) the home was in disrepair, had a broken
refrigerator and A/C and was thus unfit for a child; (8) Mother had abandoned her
previous two children; (9) Mother had health issues like Huntington’s disease; (10)
family members reported Mother was abusive and manipulative and none of her
“extended family recommended that she maintain her parental rights to Lori;” and
(11) Mother did nothing to provide a safe environment for Lori as required by the
service plan.
We agree with Mother that there is legally insufficient evidence to support
the trial court’s finding under subsection D. To begin with, Mother assaulting
nurses, jumping on the bed, eating an unhealthy diet, not receiving prenatal care,
and abandoning her two other children as well as Mother’s failure to bond with
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Lori and Father’s denial of paternity or threat of suicide is not evidence of abusive
or unlawful conduct that created a dangerous environment in which Lori lived or
remained. Mother’s recommendation to place Lori with relatives who had CPS
history does not constitute evidence that Mother knowingly placed or knowingly
allowed Lori to remain in a dangerous environment because Lori was in the
Department’s care. It is the Department’s responsibility to conduct competent
background checks and find any relevant CPS history to ensure appropriate
placement of a child it removes from its natural parents. Additionally, there was
no evidence that Steven and Susan actually had a CPS history, nor any evidence
that it was substantiated. This type of inference-upon-inference does not rise to the
level of clear and convincing evidence that can support a determination that a
parent has engaged in the conduct described in Family Code section
161.001(b)(1)(D).
Further, domestic violence in Mother’s and Father’s home, Mother’s health
issues, the home being in disrepair, Mother being abusive and not providing a safe
environment per her service plan, and her extended family not recommending she
maintain her parental rights to Lori is not evidence in support of a finding under
subsection D. Lori was never in Mother’s home or care; Lori never lived with
Mother. Therefore, Mother never placed or allowed Lori to remain in conditions
or surroundings which endangered Lori’s physical or emotional well-being as
required by subsection D. We conclude the evidence is legally insufficient to
support the trial court’s finding that Mother engaged in the conduct described in
Family Code section 161.001(b)(1)(D).
Accordingly, we sustain Mother’s first issue on legal insufficiency and do
not need to reach the question of factual insufficiency.
B. Predicate Finding under Section 161.001(b)(1)(N)
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In her second issue, Mother challenges the legal and factual sufficiency of
the evidence to support the trial court’s finding of constructive abandonment under
subsection N.
Termination under subsection N requires clear and convincing evidence that
the parent has constructively abandoned the child who has been in the permanent
or temporary managing conservatorship of the Department for not less than six
months, and (1) the department has made reasonable efforts to return the child to
the parent; (2) the parent has not regularly visited or maintained significant contact
with the child; and (3) the parent has demonstrated an inability to provide the child
with a safe environment. Tex. Fam. Code Ann. § 161.001(b)(1)(N). The first
element focuses on the Department’s conduct; the second and third elements focus
on the parent’s conduct. In re A.L.H., 468 S.W.3d 738, 744 (Tex. App.—Houston
[14th Dist.] 2015, no pet.).
Mother does not challenge the sufficiency of the evidence to support the
finding that (1) Lori was in the Department’s care for more than six months; (2)
Mother has not regularly visited or maintained significant contact with Lori; and
(3) Mother has demonstrated an inability to provide Lori with a safe environment.
Therefore, we will focus on Mother’s argument that “the first element of the (N)
ground was not met because it was not supported by the evidence in the record and
was not proven by clear and convincing evidence.” In that regard, Mother states:
“Smith testified that she visited Mother’s home and that it was not suitable for a
child but no testimony was offered about the reasonable efforts to place the child in
her home. Ford testified that she spoke to Mother about moving to another place
but Mother was not receptive to moving. This testimony is at best[] weak and does
not rise to the level of clear and convincing.”
Under the first element, returning a child to a parent under section
20
161.001(b)(1)(N)(i) does not necessarily mean that the child must be physically
delivered to the parent. In re A.M.T., No. 14-18-01084-CV, 2019 WL 2097541, at
*4 (Tex. App.—Houston [14th Dist.] May 14, 2019, pet. denied) (mem. op.).
Implementation of a family service plan by the Department is considered a
reasonable effort to return a child to its parent. Id.; In re A.L.H., 468 S.W.3d at
744; In re K.G., 350 S.W.3d 338, 354 (Tex. App.—Fort Worth 2011, pet. denied).
A family service plan is designed to reunify a parent with a child who has been
removed by the Department. In re A.M.T., 2019 WL 2097541, at *4. A service
plan must, among other things, (1) be specific; (2) state the goal of the plan, which
may be the return of the child to the child’s parents; and (3) state the actions and
responsibilities necessary for the child’s parents to take to achieve the plan goal.
Id.; see also Tex. Fam. Code Ann. § 263.102.
In this case, Ford created a service plan for Mother which required Mother
to (1) complete individual therapy and any recommended family or group therapy;
(2) cooperate with all tasks required by the agency; (3) comply with all visitation
guidelines as arranged by the caseworker; (4) attend all court hearings,
permanency conferences, and scheduled family visits; (5) complete parenting
classes; (6) maintain stable employment or income benefits for six months; (7)
acquire and maintain stable and safe housing; (8) complete a psycho-social
assessment and follow all recommendations, including individual and family
therapy; and (9) participate in a psychological evaluation and follow all
recommendations from the service provider.
The record reflects a status hearing order signed by the trial court on August
7, 2018, in which the court found that (1) Mother had appeared in person and
through her attorney at the hearing; (2) Mother’s service plan is reasonable; (3) the
goal of the service plan is to return Lori to Mother, and the plan adequately ensures
21
that reasonable efforts are being made to enable Mother to provide a safe
environment for Lori; (4) the plan is reasonably tailored to address any specific
issues identified by the Department; (5) Mother reviewed and understood the
service plan, Mother has been advised that unless she is willing and able to provide
Lori with “a safe environment, even with the assistance of a service plan, within
the reasonable period of time specified in the plan, her parental and custodial
duties and rights may be subject to restriction or to termination or [Lori] may not
be returned to her;” and (6) Mother signed the plan. The trial court approved the
service plan and made it an order of the court.
The record reflects that Ford created and filed a second service plan on
September 10, 2018, which was identical to the first service plan except that it
added to the list of tasks and services that Mother was required to complete a
psychiatric evaluation and to “follow all recommendations which may include a
medicine regiment, individual therapy, family therapy, and/or group therapy.”
This service plan was admitted into evidence at trial, and Ford testified that Mother
had received and signed the second service plan. Ford testified that she discussed
every item on the service plan with Mother. Ford could not “put a number on”
how many times she discussed the plan with Mother, but stated that every time she
spoke to Mother, she would “definitely go over the plan” with Mother. Ford stated
that she spoke to Mother at least twice a month and also offered to meet with
Mother every month.
Ford also offered Mother help to find stable and safe housing. For example,
Ford offered Mother a place in a shelter at which she would “work programs” and
then “have her own place,” but Mother refused. Ford stated she was concerned
that Mother failed to comply with the tasks, services, and goals set forth in the
service plan she drafted for Mother. According to Ford, Mother failed to complete
22
family therapy and additional individual therapy as required by her service plan.
Ford testified that she told Mother at a permanency hearing that Mother should
complete additional therapy, and Mother acknowledged “that she was told from a
psychiatrist but she was not going to do it.”
By implementing a family service plan and reviewing the plan and the
consequences of failure to comply with the plan, the Department met its burden
regarding the first element. Thus, we conclude a reasonable factfinder could have
formed a firm belief or conviction that the Department made reasonable efforts to
return Lori to Mother. Accordingly, we overrule Mother’s second issue.
C. Predicate Finding under Section 161.001(b)(1)(O)
In her third issue, Mother contends that the evidence is legally and factually
insufficient to support termination under section 161.001(b)(1)(O), which requires
a factfinder to find by clear and convincing evidence that the parent has failed to
comply with the provisions of a court order that specifically established the actions
necessary for the parent 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 or neglect of the child. See Tex. Fam. Code Ann. §
161.001(b)(1)(O).
However, despite Mother’s statement, she does not challenge the evidence
supporting the trial court’s predicate finding. Instead, Mother contends that a
preponderance of the evidence demonstrates she was unable, through no fault of
her own, to complete the service plan because of “a mental health disorder and an
abusive home.” That contention is an invocation of the statutory defense to
termination under subsection O, codified in section 161.001(d). See id. §
161.001(d). The Texas Family Code establishes a single affirmative defense to
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termination for failure to comply with a court order:
A court may not order termination under Subsection (b)(1)(O) based
on the failure by the parent to comply with a specific provision of a
court order if a parent proves by a preponderance of evidence that:
(1) the parent was unable to comply with specific provisions of
the court order; and
(2) the parent made a good faith effort to comply with the order
and the failure to comply with the order is not attributable to
any fault of the parent.
Id. The record before us supports the trial court’s conclusion in its final
termination decree that Mother failed to raise a statutory defense to termination
based on failure to comply with a court order, and “even if presented” it was not
proven by a preponderance of the evidence.6 Mother did not raise the defense in
the trial court nor did she satisfy her burden of proof and establish the applicability
of the defense. Section 161.001(d) places the burden on the parent to prove by a
preponderance of the evidence that she was unable to comply with the court-
ordered service plan, she made a good faith effort to comply with the order, and
her failure to comply is not attributable to any fault of her own. Id.
Mother contends in her brief that (1) there is no evidence indicating that she
“understood the service plan or that it was tailored to her mental health issues;” (2)
“the court appointed an attorney to serve as Mother’s guardian ad litem indicating
that Mother lacked some mental capacity;” (3) she tried to comply with the service
plan “to the extent that she could under the circumstances;” and (4) “Mother’s
mental health issues made completion of the services virtually impossible.” But
6
The Department argues that “Mother failed to preserve subsection (d) affirmative defense for
this Court’s review” because she did not plead the defense, and “[a]n affirmative defense must be
pleaded.” However, assuming without deciding that Mother did not waive the section
161.001(d) defense for failure to specifically plead it, we conclude she failed to meet her burden
of proof.
24
Mother offered no evidence at trial that she was unable to comply with the specific
provisions of the court order, that she made a good faith effort to comply with the
order, and that her failure to comply with it is not attributable to her fault.
Mother did not explain (as she alleges now on appeal) why “mental health
issues made completion of the services virtually impossible” when she was able to
complete several of the tasks and services required by the service plan. Contrary to
Mother’s assertion that there is no evidence indicating that she understood the
service plan or that it was tailored to her mental health issues, the trial court found
in its order that Mother understood the service plan, the service plan was
reasonable and accurate, and it was “reasonably tailored to address any specific
issues identified by the Department.” Mother does not challenge these findings nor
does she point to evidence controverting them. Additionally, the service plan
specifically provided for tasks and services to address concerns regarding Mother’s
mental health by requiring her to participate in and complete (1) a psychiatric
evaluation and to “follow all recommendations which may include a medicine
regiment, individual therapy, family therapy, and/or group therapy”; (2) individual
therapy, and complete any recommended family or group therapy; (3) parenting
classes; (4) a psycho-social assessment and follow all recommendations which
may include a psychiatric evaluation, individual therapy, family therapy, and/or
group therapy; and (5) a psychological evaluation and follow all recommendations
from the service provider.
Therefore, we conclude that the trial court’s findings that Mother failed to
raise and prove the statutory defense are supported by legally and factually
sufficient evidence in the record. Accordingly, we overrule Mother’s third issue.
III. Best Interest
In her fourth issue, Mother challenges the legal and factual sufficiency of the
25
evidence to support the trial court’s finding that termination of the parent-child
relationship was in the best interest of Lori. However, her brief contains no legal
argument in support of this issue.
The Rules of Appellate Procedure require that an appellant’s brief “contain a
clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.” Tex. R. App. P. 38.1(i). An appellate issue that is
unsupported by argument or contains an argument lacking citation to the record or
legal authority presents nothing for review. In re A.L.P., No. 01-19-00144-CV,
2019 WL 3949461, at *5 (Tex. App.—Houston [1st Dist.] Aug. 22, 2019, pet.
dism’d) (mem. op.); In re B.T.D., No. 01-16-00582-CV, 2017 WL 343613, at *7
(Tex. App.—Houston [1st Dist.] Jan. 20, 2017, no pet.) (mem. op.). “‘Bare
assertions of error without argument or authority waive error.’” In re A.L.P., 2019
WL 3949461, at *5 (quoting In re J.A.M.R., 303 S.W.3d 422, 425 (Tex. App.—
Dallas 2010, no pet.); see also In re K.C.B., 280 S.W.3d 888, 896 (Tex. App.—
Amarillo 2009, pet. denied) (Mother waived challenge to sufficiency of evidence
on best interest finding in parental termination case because of inadequate
briefing).
Here, Mother neither provided any substantive analysis of the evidence
regarding the child’s best interest nor appropriate citations to the record to support
her challenge to the trial court’s best interest finding. Mother failed to demonstrate
how the evidence in this case is insufficient to support the trial court’s finding that
termination of her parental rights was in Lori’s best interest. Her conclusory and
bare assertion that “[a]n evaluation of [the Holley7] factors in this case reveals the
legal and factual insufficiency of the evidence to support the judgment” presents
7
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (listing factors to consider when
determining the best interest of a child).
26
no legal argument.
Therefore, we conclude that Mother’s alleged issue is waived as
inadequately briefed. See In re A.L.P., 2019 WL 3949461, at *5; In re B.T.D.,
2017 WL 343613, at *7-8 (parent waived challenge to legal and factual sufficiency
of evidence supporting trial court’s best interest finding because parent
inadequately briefed it); In re S.H., No. 02-17-00188-CV, 2017 WL 4542859, at
*14 n.17 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem. op.) (same); In re
D.V., No. 06-16-00065-CV, 2017 WL 1018606, at *7 (Tex. App.—Texarkana
Mar. 16, 2017, pet. denied) (mem. op.) (same); In re D.J.W., 394 S.W.3d 210, 223
(Tex. App.—Houston [1st Dist.] 2012, pet. denied) (same). Accordingly, we
overrule Mother’s fourth issue.
CONCLUSION
We reverse the Final Decree for Termination only as to the trial court’s
finding under section 161.001(b)(1)(D), and we render judgment deleting that
finding. See Tex. R. App. P. 43.2(c). We affirm the decree in all other respects.
/s/ Meagan Hassan
Justice
Panel consists of Justices Jewell, Zimmerer, and Hassan. (Jewell, J., concurring).
27