Opinion issued December 4, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00460-CV
                           ———————————
                  IN THE INTEREST OF L.M.S. A/K/A L.S.



                   On Appeal from the 315th District Court
                           Harris County, Texas
                     Trial Court Case No. 2013-02617J


                          MEMORANDUM OPINION

      This is an accelerated appeal from the trial court’s judgment terminating the

parental rights of appellant mother, K.A.F., to her son, L.M.S. We affirm.

                                BACKGROUND

      Seven-month-old L.M.S. was removed from his mother’s care in April 2014

after doctors were not satisfied with her explanations about how L.M.S. incurred
certain injuries. Mother had taken L.M.S. to a CVS care clinic on the evening of

April 24, 2013 to have two swollen middle fingers on his left hand examined. The

CVS clinic referred them to an after-hours pediatric urgent care clinic. The doctor

at the pediatric clinic saw several indicators of non-accidental trauma, including a

fractured finger on the left hand, swollen fingers on the right hand, and multiple

bruises on the right leg. That doctor called Child Protective Services and sent them

to a branch of Texas Children’s Hospital. Later that night, L.M.S. was moved to

the main campus of Texas Children’s Hospital.          X-rays at Texas Children’s

additionally revealed that L.M.S.’s leg had a healed fracture.

      Of primary concern to each of the physicians that examined L.M.S. was that

mother was unable to account for some of the injuries, and that the explanations

that she did offer—i.e., that L.M.S. sometimes fell on heavy toys, L.M.S. once

rolled out of bed onto the carpeted floor, and that his mother sometime tickled

him—were not consistent with his injuries. Mother also gave inconsistent answers

about who cared for L.M.S. and with whom she lived.

         On April 26, 2013, the Department of Family and Protective Services

filed a petition seeking conservatorship of L.M.S. and termination of mother’s

parental rights.   The court appointed the Department as temporary managing

conservator, and L.M.S. was placed in a foster home. Mother signed a parenting

plan in June 2013, setting forth the steps she needed to accomplish towards


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providing L.M.S. with a safe environment within a reasonable time to avoid her

rights being restricted or terminated.

      Mother testified at trial that she was 18-years-old when she had L.M.S. She

was living with L.M.S.’s father at his mother’s home when she became pregnant.

Father testified at trial that Mother tried to commit suicide by overdosing on drugs

while she was pregnant. Both mother and father testified that father physically

abused mother before, during, and after her pregnancy with L.M.S. Mother and

father moved from father’s mother’s home to the home of mother’s mother before

L.M.S. was born. Sometime after L.M.S. was born, father moved out after one of

their altercations.   Mother and L.M.S. then moved in to a studio apartment

provided by a friend, Maria Arismendes.

      Mother conceived another child the month before L.M.S. was removed from

her care. She was sexually active with several men at that time, so she was unable

to identify the father. She testified at trial that most of her contact with these men

was at her apartment with L.M.S. present. In December 2013, mother gave birth to

a daughter, N.F., who was removed by the Department and placed in a foster care,

with different foster parents than L.M.S., as part of a separate case.

      L.M.S.’s case worker, Sarah Nash, testified at trial that L.M.S. was

developmentally delayed when he came into the Department’s care, and that he

exhibited behavior that is consistent with that of an abused or neglected child. The


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Department referred L.M.S. for occupational and physical therapy, as well as

follow up medical care for his broken finger.

      Although mother completed most of the requirements under her service

plan—including attending parenting classes, drug testing, obtaining employment

and housing, and attending visits with L.M.S.—Nash testified that she nonetheless

was still unable to demonstrate appropriate parenting techniques. Even during

supervised visits with her children, she could not supervise or care for L.M.S., nor

control her own emotions.

      Mother’s supervised visits with L.M.S. and N.F. ceased after February 5,

2014 because she was under court order prohibiting contact with L.M.S. (and any

other children under the age of 10) as part of a criminal proceeding related to the

same injuries to L.M.S. that gave rise to his removal. She was still subject to that

order at the time of the underlying trial in April 2014.

      L.M.S.’s original foster parents were unwilling to adopt him. In December

2013, when his sister N.F. was born, L.M.S. was moved from his first foster home

into the same foster home as his sister. They have thrived in that home, and the

foster parents are willing to adopt them both.

      At the close of trial, the jury found that the parent-child relationship between

mother and L.M.S. should be terminated and that the parent-child relationship




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between father and L.M.S. should be terminated. The trial court entered judgment

on the jury’s verdict, and mother appealed.

                              ISSUE ON APPEAL

      In a single issue, mother argues:

      There is legally and factually insufficient evidence to support the
      termination grounds and best interest and the State did not meet its
      burden of proof by clear and convincing evidence.

                  TERMINATION OF PARENTAL RIGHTS
A.    Applicable Law

      A strong presumption exists that a child’s best interest is served by

maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.

App.—Houston [1st Dist.] 2003, no pet.). In a case to terminate parental rights

under section 161.001 of the Family Code, the Department must establish, by clear

and convincing evidence, that (1) the parent committed one or more of the

enumerated acts or omissions justifying termination and (2) termination is in the

best interest of the child. TEX. FAM. CODE ANN. § 161.001 (West 2014).

      Relevant to this case, Section 161.001 lists the following as independent

grounds for involuntary termination:

            (D) knowingly placed or knowingly allowed the child to remain
      in conditions or surroundings which endanger the physical or
      emotional well-being of the child;

            (E) engaged in conduct or knowingly placed the child with
      persons who engaged in conduct which endangers the physical or
      emotional well-being of the child;
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             (F) failed to support the child in accordance with the parent’s
      ability during a period of one year ending within six months of the
      date of the filing of the petition;

             (N) constructively abandoned the child who has been in the
      permanent or temporary managing conservatorship of the Department
      of Family and Protective Services or an authorized agency for not less
      than six months, and:
                   (i) the department or authorized agency has made
             reasonable efforts to return the child to the parent;

                    (ii) the parent has not regularly visited or maintained
             significant contact with the child; and
                    (iii) the parent has demonstrated an inability to provide
             the child with a safe environment;
             (O) 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 of Family and Protective
      Services 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.
TEX. FAM. CODE ANN. § 161.001(1).

B.    Standard of Review

      Clear and convincing evidence is “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); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).

      In a legal-sufficiency review in a parental-rights-termination case, the

appellate court should look at all the evidence in the light most favorable to the

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finding to determine whether a reasonable trier of fact 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 that the factfinder resolved disputed facts in favor of its finding if a

reasonable factfinder could do so, disregarding all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible. Id. If, after

conducting a legal sufficiency review of the record, we determine that no

reasonable factfinder could form a firm belief or conviction that the matter that

must be proven is true, then we must conclude that the evidence is legally

insufficient. Id.

       In conducting a factual-sufficiency review in a parental-rights-termination

case, we must determine whether, considering the entire record, including evidence

both supporting and contradicting the finding, a factfinder reasonably could have

formed a firm conviction or belief about the truth of the matter on which the

Department bore the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

We should consider whether the disputed evidence is such that a reasonable

factfinder could not have resolved the disputed evidence in favor of its finding. In

re J.F.C., 96 S.W.3d at 267. “If, in light of the entire record, the disputed evidence

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

significant that a factfinder could not reasonably have formed a firm belief or




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conviction, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d

105, 108 (Tex. 2006).

C.    Grounds for Termination

      The jury was instructed on five potential grounds for termination, i.e.,

section 161.001(1)(D) (conditions or surroundings), (E) (conduct), (F) (failure to

support), (N) (constructive abandonment), and (O) (failure to complete service

plan). See TEX. FAM. CODE ANN. § 161.001(1). It rendered a general verdict that

the mother’s parental rights should be terminated. The same five grounds were

cited in the trial court’s final Decree for Termination.

      Mother’s appellant’s brief argues that she is “appealing the termination of

her parental rights under sections 161.001(1)(D),(E)” and her argument is limited

to challenging the sufficiency of the evidence to support termination only under

these two grounds. The Department argues that we “need not review [mother’s]

challenges to subsections (D) and (E), as her brief failed to challenge three other

statutory grounds for termination included in the trial court’s final decree.” We

agree with the Department. See, e.g., In re N.L.D., 412 S.W.3d 810, 818 (Tex.

App.—Texarkana 2013, no pet.) (holding that, because appellant failed to

challenge sufficiency of the evidence to support one of the three section 161.001(1)

grounds for termination found by the jury, the court on appeal “need not review her

challenges to the sufficiency of the evidence supporting the jury’s answers to the


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remaining questions because the jury’s finding on the first question is sufficient

under Section 161.001(1)(F)”); In re C.P.V.Y., 315 S.W.3d 260, 269 (Tex. App.—

Beaumont 2010, no pet.) (holding that, because appellant failed to challenge the

sufficiency of the evidence to support one of the five section 161.001(1) ground for

termination cited by the trial court’s judgment, he waived his sufficiency challenge

to the section 161.001(1) bases for termination); Toliver v. Texas Dep’t of Family

& Protective Servs., 217 S.W.3d 85, 102 (Tex. App.—Houston [1st Dist.] 2006, no

pet.) (holding that the court need not address appellant’s sufficiency challenge to

one section 161.001(1) finding in support of termination, because appellant failed

to challenge the sufficiency of the evidence supporting findings on three other

section 161.001(1) grounds).

D.    Best Interest

      Mother also challenges the sufficiency of the evidence that termination of

her parental rights was in L.M.S.’s best interest.

      In Holley v. Adams, the Texas Supreme Court provided a nonexclusive list

of factors that the factfinder in a termination case may use in determining the best

interest of the child. 544 S.W.2d 367, 371–72 (Tex. 1976). These factors include:

(1) the desires of the child; (2) the emotional and physical needs of the child now

and in the future; (3) the emotional and physical danger to the child now and in the

future; (4) the parental abilities of the individuals seeking custody; (5) the


                                          9
programs available to assist these individuals to promote the best interest of the

child; (6) the plans for the child by these individuals or by the agency seeking

custody; (7) the stability of the home or proposed placement; (8) the acts or

omissions of the parent that may indicate that the existing parent-child relationship

is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id.

These factors are not exhaustive, and the Department need not prove all factors as

a condition precedent to parental termination. In re C.H., 89 S.W.3d at 27; Adams

v. Tex. Dep’t of Family & Protective Servs., 236 S.W.3d 271, 280 (Tex. App.—

Houston [1st Dist.] 2007, no pet.).

       “[T]he prompt and permanent placement of the child in a safe environment

is presumed to be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a)

(West 2014). In determining whether a parent is willing and able to provide a safe

environment, we consider several additional factors, including (1) the child’s age

and vulnerabilities; (2) developmental evaluations of the child’s parents, other

family members, and others who have access to the child’s home; (3) whether

there is a history of substance abuse by the child’s family or others who have

access to the child’s home; (4) willingness and ability of the child’s family to seek,

accept, and complete counseling services and cooperate with agency supervision;

(5) the willingness and ability of the child’s family to effect positive changes

within a reasonable period of time; and (6) whether the child’s family demonstrates


                                         10
adequate parenting skills. In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston

[1st Dist.] 2012, no pet.) (citing TEX. FAM. CODE ANN. § 263.307(b)). Evidence

establishing one of the predicate acts under section 161.001(1) also may be

relevant to determining the best interest of the child. see In re C.H., 89 S.W.3d at

28. Termination of the parent-child relationship is not justified when the evidence

shows that a parent’s failure to provide a more desirable degree of care and support

of the child is due solely to misfortune or the lack of intelligence or training, and

not to indifference or malice. Clark v. Dearen, 715 S.W.2d 364, 367 (Tex. App.—

Houston [1st Dist.] 1986, no writ).

      Here, there is evidence that L.M.S. lacked a strong bond with mother, and

that his emotional and physical needs were not adequately being met in her care.

He was developmentally delayed when he was removed and exhibited signs

consistent with abuse and neglect. He suffered several unexplained injuries in her

care, including bruises, sprains, and broken bones. Mother was inconsistent in her

explanations about who cared for L.M.S.

      Despite having attended parenting classes, mother was not able to

demonstrate an ability to supervise L.M.S. during visits. Specifically, mother was

only attentive to him about half the time, failed to notice or intervene if he would

run out of the room, and would get very emotional about L.M.S.’s not wanting to

be held by her. Mother was unable to articulate what she had learned related to


                                         11
properly caring for a toddler, and had not formulated a plan for caring for L.M.S.

Nash, L.M.S.’s case worker, testified to her belief that mother is unable to provide

L.M.S. with a safe and stable environment. At the time of trial, as a condition of

her bond release on pending family violence charges, mother was prohibited from

seeing L.M.S.

      In contrast, L.M.S. had formed strong bonds with his foster parents. He

calls them “mama” and “dada.”           He is happy, thriving, and meeting his

developmental milestones. L.M.S. is also bonding with his sister, N.F., and his

foster parents are willing to adopt both children.

      Viewing all of this evidence in the light most favorable to the trial court’s

judgment and in consideration of the nonexclusive Holley factors, we conclude that

a reasonable trier of fact could have formed a firm belief or conviction that

termination of mother’s parental rights to L.M.S. was in his best interest. In re

J.F.C., 96 S.W.3d at 266. Accordingly, there is legally sufficient evidence to

support the best interest finding.

      In reviewing the factual sufficiency of the evidence, we also look to the

evidence that mother has completed numerous tasks from her service plan,

including attending parenting classes, passing drug tests, obtaining housing and

employment, and attending visits with L.M.S. and court hearings. While this

evidence exhibits some commitment by mother to completing her service


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obligations, we nonetheless conclude that—taken with the evidence in favor of

termination, especially evidence that she has been unable to demonstrate an ability

to care for L.M.S. and the court order prohibiting her from seeing L.M.S.—a

reasonable factfinder considering all the evidence could have formed a firm belief

or conviction that termination was in L.M.S.’s best interest. In re J.F.C., 96

S.W.3d at 266.

      We overrule appellant’s sole issue on appeal.

                                 CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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