      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-10-00103-CV



                                    Tabitha LaRocca, Appellant

                                                   v.

                  Texas Department of Family and Protective Services, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
            NO. 231,242, HONORABLE RICK MORRIS, JUDGE PRESIDING



                               MEMORANDUM OPINION


                  Tabitha LaRocca appeals from the trial court’s order terminating her parental rights

to her son, R.W., after a jury found that her rights should be terminated.1 On appeal, LaRocca

challenges the legal and factual sufficiency of the evidence to support the jury’s finding. Because

we conclude that the evidence is legally and factually sufficient to establish (1) statutory grounds for

termination and (2) that termination is in the child’s best interest, we affirm the trial court’s order

of termination.


                                           BACKGROUND

                  The Department of Family and Protective Services (the “Department”) brought suit

against Tabitha LaRocca and Gregory Worley for termination of parental rights to their son, R.W.

R.W.’s foster parents, Virgil and Melody Cowger, intervened.

       1
         At some point after this suit was filed, LaRocca obtained a divorce and changed her name
to Tabitha Guerra. Because the trial court’s order of termination refers to her as Tabitha LaRocca,
we will do the same for the purposes of this opinion.
                   The Department first became involved in July 2008, when R.W., who was five weeks

old at the time, was brought to the emergency room by LaRocca and R.W.’s paternal grandparents,

Raymond and Rebecca Worley.2 R.W. suffered from a fractured skull, a hematoma on the right side

of his head, a “big subdural hematoma” on the left side of his head, and brain shearing.3 R.W.’s

injuries required several emergency surgeries and two-and-one-half weeks of hospitalization.

Emergency room doctors diagnosed the injuries as resulting from non-accidental trauma.

                   Shortly after the Department became involved, the Department’s investigator, Kecia

Amos-Folks, prepared an affidavit summarizing her investigation. LaRocca told Folks that the

injury occurred when she, Raymond, and Rebecca left R.W. with Worley to attend a doctor’s

appointment. LaRocca said that prior to leaving the house, she was holding R.W., who was awake

and uninjured. Approximately four hours later, Rebecca received a phone call from Worley

informing her that the baby had fallen off of the bed. LaRocca, Raymond, and Rebecca returned

home and drove R.W. to the fire station, where an ambulance took them to the hospital. Worley told

Folks that R.W. accidentally fell from his lap and hit his head on the side of the bed frame. R.W.’s

neurosurgeon, Dr. Patricia Aronin, testified at trial, however, that R.W.’s injuries could not have

occurred from falling off of a bed. She stated that the severity of R.W.’s brain shearing and skull

damage required a violent force, such as “violent shaking and then . . . being thrown down on

something that was pretty hard . . . or be[ing] hit with something.” Such an injury could occur from

a fall only “if you fell out of the fourth story window onto the pavement. . . . It would take that sort


         2
             For the sake of clarity, we will refer to R.W.’s grandparents and foster parents by their first
names.
         3
          Documents related to the Department’s investigation indicate that brain shearing occurs
when a body traveling at a certain velocity stops suddenly and the brain continues traveling forward
in the brain cavity, ripping blood vessels. It is most often seen in high speed car accidents.

                                                      2
of a distance and an impact.” Despite the severity of R.W.’s injuries, LaRocca testified at trial that

for nearly six months she continued to believe Worley’s claims that R.W. was accidentally injured

by falling from the bed.

                 The Department sought and obtained an order appointing it temporary managing

conservator in August 2008, while R.W. was still hospitalized, on the grounds that the Department

could discern no credible explanation for the cause of R.W.’s injuries and that LaRocca persisted in

her belief that the injury was an accident.4 Worley was later convicted of serious bodily injury to a

child with a deadly weapon in connection with R.W.’s injuries and was sentenced to twenty years

in prison.5 The Department sought termination of both Worley’s and LaRocca’s parental rights and

a jury trial was held in January 2010.


R.W.’s Condition

                 At trial, Dr. Aronin testified to R.W.’s current condition. She stated that R.W. has

sustained several long-term effects from his injuries and is considered a medically fragile child. In

addition to his initial surgeries, R.W. has had two other major surgeries in December 2008 and

July 2009. He is at risk for seizures and takes seizure medication twice a day. He also wears an

orthotic helmet 23 hours a day to protect the holes in his skull and shape his head as it grows.

Because of his helmet, R.W. can overheat easily, which may cause seizures. R.W.’s caretaker must

be diligent to prevent R.W. from becoming too hot, and remove his clothing and helmet if he starts

looking overheated. Additionally, R.W. has two fluid-draining shunt tubes in his head which must



       4
           The Department later ruled out the possibility that R.W.’s injuries were caused by LaRocca.
       5
           The court in Worley’s criminal proceeding found the bed to be a deadly weapon.

                                                   3
be constantly monitored, as a shunt malfunction may cause brain damage or death. Because R.W.

is too young to communicate discomfort, in order to discover a shunt malfunction, R.W.’s caretaker

must know R.W., understand his patterns and behaviors, and recognize small behavioral changes.

               Melody, R.W.’s foster mother, testified that as a result of R.W.’s medical conditions,

he sees a number of doctors on a regular basis. He attends physical, occupational, and speech

therapy four times per week for 30 minutes to an hour each, helmet fittings every two weeks for

30 minutes to two hours, and has appointments with his neurosurgeon every two to three months,

his neurologist every two to four months, his pediatric gastroenterologist every six months or as

needed, and his opthamologist every two months, as well as regular pediatric and dental

appointments. R.W.’s doctors are currently in Killeen, Austin, Round Rock, and Temple.

               According to Dr. Aronin, R.W. was nineteen months old at the time of trial but was

functioning at the level of a twelve-month-old, and will continue to have severely limited

development. She testified that, based on what she had seen so far, R.W. will forever have the

cognitive ability and motor skills of a young child and will need care into adulthood. Though his

body will grow into an adult, she stated that he will likely be unable to walk, his speech will be

limited, and he will never be “normal.” She was unsure whether he will ever learn to dress, bathe,

or feed himself.

               Upon R.W.’s release from the hospital, he was placed in foster care with the Cowgers

in Belton, where he still remains. Melody Cowger is a licensed vocational nurse employed with a

pediatric home health agency and has experience caring for medically fragile children. R.W.’s

neurosurgeon, pediatrician, physical therapist, caseworker, and guardian ad litem all testified to the




                                                  4
high quality of care the Cowgers have provided R.W. The Cowgers testified that they wish to adopt

R.W. following a successful termination.


The Guerras’ Home in Brownsville

               Shortly after the Department took custody of R.W., LaRocca chose to move into her

parents’ home in Brownsville, seven hours away. LaRocca testified that she and Worley had planned

on moving to Brownsville even before R.W. was born. Because she had no family, friends, job, or

car in Belton, LaRocca felt that “the only thing [she] could do was go home.” Though she looked

into housing at the Ronald McDonald house, LaRocca admitted she never looked into other housing

or employment options in Belton because she was told by the Department that she needed family

support, which was located solely in Brownsville. Christina Garcia, R.W.’s case worker, testified

that it was her understanding that Raymond and Rebecca offered LaRocca housing and transportation

at their home in Belton, which LaRocca did not accept. LaRocca disagreed, stating that Raymond

and Rebecca never made such an offer. LaRocca instead testified that they moved her and Worley’s

belongings out of their home because the Department told them that LaRocca and Worley could not

live with them if Raymond and Rebecca wished to be considered as a placement for R.W.6

               Shortly thereafter, the court ordered a home study on the home of LaRocca’s parents,

Gina and Javier Guerra, to evaluate their home as a possible placement option. According to Garcia,

the study was performed in December 2008, and the home was approved on the conditions that




       6
         Garcia testified that a home study was never completed on Raymond and Rebecca because
they kept a pet pit bull in their home.

                                                5
(1) R.W. be medically cleared to make the trip7 and (2) that the Guerras be able to prove to the

Department that they could provide for all of R.W.’s medical needs, including producing a list of

doctors in the Brownsville area that had agreed to take R.W. as a patient. Garcia testified that Gina

did not give her a list of proposed Brownsville doctors until nearly a year after the home study.

Garcia further testified to her concern that because Gina and LaRocca attended so few

doctor’s appointments and visitations, the Guerras were not equipped to provide R.W. with a safe

home environment.


Family Service Plan

               In September 2008, the court adopted a family service plan, developed by the

Department, LaRocca, and her family. With the goal of reunifying LaRocca and R.W., the plan set

out a number of tasks for her to accomplish before reunification could occur. The plan required her

to: (1) complete parenting classes; (2) continue taking classes toward her associate’s degree;

(3) participate in individual therapy; (4) take any and all necessary educational classes and obtain

advice from medical staff to educate, prepare, and implement the care needed to ensure R.W.’s

development and growth; (5) be sensitive to the special needs and care necessary for R.W.’s well-

being; (6) stay involved with the current care and progress of R.W. through constant contact and

communication with caregivers and medical staff; (7) participate in a psychological evaluation;

(8) demonstrate the ability to meet R.W.’s basic needs and ensure safety of the child; (9) maintain

a stable job; and (10) maintain a stable and safe home suitable for R.W. LaRocca testified that she

has followed the family service plan’s instructions and has done everything the Department has


       7
        According to Garcia, R.W. was not medically cleared to travel to Brownsville until the
week before trial.

                                                 6
asked her to do, including obtain a psychological evaluation and attend regular therapy sessions. At

trial, the Department took the position that LaRocca had failed to make satisfactory progress,

particularly with regard to providing for R.W.’s safety and medical needs.

               At an August 28, 2008 hearing, the court allowed LaRocca and her mother, Gina, one

hour per week of supervised visitation time and eventually allowed Melody to supervise visits. In

May 2009, LaRocca was allowed an unlimited number of visits and in June 2009 was granted

unsupervised visits.

               R.W. was in the Department’s custody for seventeen months before trial, during

which LaRocca visited him sixteen times, totaling approximately 30 hours. In that time, she also

attended one appointment with Dr. Asbury, R.W.’s pediatrician, one appointment with Dr. Aronin,

R.W.’s neurosurgeon, one helmet-fitting appointment, and one therapy appointment.              Gina

accompanied LaRocca to most of the visits and doctor’s appointments that LaRocca attended.

LaRocca did not visit R.W. in the hospital for either of his two major surgeries, nor did she call

anyone for an update on her son’s condition. According to Garcia, the only communication from

the Guerras regarding the surgeries was a call from Gina to Garcia four days after the July 2009

surgery. LaRocca testified that she visited R.W. as often as was possible, but could only afford the

$250-$300 trip approximately once a month. She also stated that it was difficult for her to get time

off from her job as a security guard, which she held from November 2008 to May 2009.

               Garcia testified that LaRocca called her for an update approximately once a month

for the first year R.W. was in foster care and began calling more frequently in August or

September 2009. While LaRocca claimed that problems contacting Melody and Garcia made it

difficult to schedule visits or receive updates, Garcia, Melody, and Shannon Bloxham, R.W.’s


                                                 7
guardian ad litem, all testified that they made deliberate efforts to communicate with LaRocca and

keep her informed. LaRocca also stated that she was not informed of medical appointments until

after they had occurred, though both Garcia and Bloxham testified to informing LaRocca of

numerous appointments ahead of time, many of which LaRocca did not attend. Garcia and Melody

expressed concern that despite their efforts, LaRocca did not reach out to them and did not initiate

contact every two weeks as the family service plan required, even when phone calls were

scheduled in advance.

                The family service plan also required LaRocca to take any classes necessary to learn

about R.W.’s medical needs and to “stay involved with current care and progress of R.W. through

constant contact with caregivers and medical staff.” Dr. Aronin testified that she gave LaRocca a

pamphlet and a website containing information about her son’s injuries when she came for R.W.’s

visit. Though LaRocca claims Dr. Aronin told her she could find all the information she needed

online, Dr. Aronin testified that the pamphlet and website were not enough to fully inform LaRocca.

She stated that parents learn how to care for a child like R.W. through attending the child’s doctor’s

appointments and asking questions, because there are no parenting classes available specific to

R.W.’s needs. Garcia testified that though neither the Department nor any doctors prevented

LaRocca from calling R.W.’s doctors directly or attending any of R.W.’s appointments, she attended

no more than one appointment with each doctor. LaRocca did not ask questions during any of the

four doctor’s visits she did attend.

               The Department alleges that because of this lack of commitment to learning about

R.W.’s condition and care, LaRocca does not have the knowledge or understanding necessary to

provide a safe home environment for her son. This inability to medically care for R.W. was


                                                  8
evidenced, according to the Department, during LaRocca and Gina’s first unsupervised visit with

R.W. in September 2009. During the visit, LaRocca and Gina changed R.W.’s clothes from a t-shirt,

shorts, and no socks to a t-shirt, jeans, and socks while at the mall. After the visit, Melody noticed

that R.W. was not acting himself, and his neurologist stated at trial that he believed R.W.

became overheated and suffered a seizure during LaRocca’s visit. Neither LaRocca nor Gina

noticed anything abnormal, and LaRocca testified that she did not think the seizure occurred

while in her care.

               Though Garcia stated that she had previously given instructions to LaRocca

emphasizing the importance of monitoring R.W. for overheating, LaRocca admitted that prior to the

September 2009 visit, which occurred over a year after R.W.’s injuries, she did not understand that

if R.W. got too hot, he may have a seizure. Garcia testified that LaRocca had not taken the necessary

steps to assure R.W.’s safety. She said that after the incident, LaRocca seemed very defensive,

stating, “I don’t know how jeans can cause a seizure. I can dress my child in whatever I want. If I

want him to run around naked, I’ll do that . . . .” After the visit and on R.W.’s neurologist’s

recommendation, the court reduced LaRocca’s visitation to one two-hour unsupervised visit per

month, with any additional supervised visits to be granted at the Department’s discretion.

               At the end of 2009, the Department modified its plans from reconciliation to

termination on the grounds that LaRocca knowingly placed R.W. in conditions which endangered

his physical or emotional well-being, constructively abandoned R.W., and failed to comply with the

family service plan. See Tex. Fam. Code Ann. § 161.001(D), (E), (N), (O) (West Supp. 2009). The

Department alleges that LaRocca failed to seek the information necessary to learn about R.W.’s

medical needs and proper care, failed to maintain constant contact and communication with R.W.’s


                                                  9
caregivers and medical staff, and did not demonstrate that she could meet R.W.’s basic needs or

create a safe home for him. The jury found that both LaRocca’s and Worley’s parental rights should

be terminated, and LaRocca appeals, challenging the legal and factual sufficiency of the evidence.


                                    STANDARD OF REVIEW

               In reviewing the evidence for legal sufficiency in parental termination cases, we must

look at all the evidence in the light most favorable to the jury’s finding and determine whether a

reasonable trier of fact could have formed a firm belief or conviction that the grounds for termination

were proven. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the factfinder

resolved any disputed facts in favor of its finding if a reasonable factfinder could have done so, and

disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible.

Id.   We may not substitute our judgment for the jury’s, and we must defer to the jury’s

determinations of the credibility of the witnesses, the weight to be given the testimony, and the

resolution of evidentiary conflicts. City of Keller v. Wilson, 168 S.W.3d 802, 819, 822 (Tex. 2005).

               Evidence is factually sufficient in termination cases if the evidence is such that a

factfinder could reasonably form a firm belief or conviction about the truth of the Department’s

allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). This standard “retains the deference an

appellate court must have for the factfinder’s role.” Id. at 26. In a factual-sufficiency review, we

may not pass upon the witnesses’ credibility or substitute our judgment for that of the jury, even if

the evidence would support a different result. Landry’s Seafood House-Addison, Inc. v. Snadon,

233 S.W.3d 430, 436 (Tex. App.—Dallas 2007, pet. denied).




                                                  10
                                          DISCUSSION

               In order for a court to terminate parental rights, the Department must show, by clear

and convincing evidence, that at least one of the twenty statutory grounds for termination applies and

that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001.

               The jury was asked whether LaRocca’s parental rights should be terminated under

sections 161.001(1)(D), (E), (N), or (O) of the Texas Family Code. Sections 161.001(1)(D) and (E)

allow for termination if it is found that the parent (1) knowingly placed the child or knowingly

allowed the child to remain in conditions which endanger the physical or emotional well-being of

the child, or (2) 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. Id. § 161.001(1)(D), (E).

Section 161.001(1)(N) sets out constructive abandonment as a ground for termination, requiring clear

and convincing evidence that a 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. Id. § 161.001(1)(N).

Section 161.001(1)(O) allows for termination for a parent’s failure to comply with the provisions of

a court order that established the actions necessary for the return of a child removed by the

Department due to abuse or neglect. Id. § 161.001(1)(O).

               In a termination case, it is appropriate to submit the termination question to the jury

in the form of a broad-form question. Trevino v. Texas Dep’t of Protective and Regulatory Servs.,

No. 03-01-00038-CV, 2002 Tex. App. LEXIS 1347, at *6 (Tex. App.—Austin 2002, pet. denied)


                                                 11
(citing Texas Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990)). When a broad-form

question is submitted, we must uphold the jury’s findings if any ground for termination

supports the findings. Id. (citing In re M.C.M., 57 S.W.3d 27, 32 (Tex. App.—Houston [1st Dist.]

2001, no pet.)).

               LaRocca argues that the evidence is neither legally nor factually sufficient to support

termination based on any of the grounds submitted to the jury, and that the evidence is insufficient

to support the finding that termination is in the best interest of R.W.


Constructive Abandonment

               Because the Department relied heavily on constructive abandonment as a ground for

termination both at trial and on appeal, we will address it first. To prove constructive abandonment,

the Department was required to show that it made reasonable efforts to return R.W. to LaRocca, that

LaRocca did not regularly visit or maintain significant contact with R.W., that she has demonstrated

an inability to provide R.W. with a safe home environment, and that R.W. was in the Department’s

custody for at least six months, a fact that is undisputed. See Tex. Fam. Code Ann. § 161.001(1)(N).

               The Department presented testimony suggesting that it made reasonable efforts to

return R.W. to LaRocca. Garcia testified that the Department gave LaRocca many chances to

become involved with R.W.’s medical care and learn the information needed to care for R.W. She

further testified that had LaRocca regularly visited R.W., she would have been given more time with

her son and may have been eligible for a “monitor and return,” when a child is placed back with the

parents while still in the Department’s custody and monitored for progress.




                                                 12
               To prove that LaRocca did not visit regularly or maintain significant contact with

R.W., the Department presented evidence that LaRocca visited R.W. only sixteen times in

seventeen months. She failed to visit R.W. after either of two major surgeries, attended four out of

over one hundred doctor’s appointments, and called for news of her son only once a month for an

entire year. Garcia testified that, in her opinion, LaRocca did not regularly visit R.W. nor did she

maintain significant contact with him. Bloxham agreed, testifying that LaRocca’s sixteen visits do

not constitute significant contact given the circumstances. The Department also presented the

testimony of an attachment expert, Janie Cravens, who stated that, based on the age of R.W. when

he was removed and the number and length of visits, not only is R.W. not emotionally attached to

LaRocca, he is likely not even familiar enough to recognize her. Cravens further testified that one

hour per week, LaRocca’s allotted visitation, would have created a familiarity in the relationship not

present in her less-than-monthly visits. While we acknowledge both the difficulties LaRocca faced

in visiting R.W. and her testimony that she saw her son as often as possible, we must conclude that

the evidence is legally and factually sufficient to find that LaRocca failed to regularly visit or

maintain contact with R.W.

               The Department also presented testimony suggesting that LaRocca demonstrated an

inability to maintain a safe home environment for R.W. Garcia testified that she felt reunification

risked physical harm to R.W. due to LaRocca’s lack of knowledge and understanding regarding his

care. Bloxham testified that she has not seen a dedication to R.W. in her interactions with LaRocca.

Dr. Aronin testified that R.W.’s caregiver “has to be knowledgeable enough and aware enough of

him to be able to know when things are going wrong. . . . You have to know [R.W.] and you have

to be aware of changes in his behavior.” She stated that R.W. needs a caregiver who will not only

                                                 13
get him to his various appointments, but will also practice his physical, occupational, and speech

therapy exercises at home. According to Dr. Aronin, R.W.’s progress is dependent on at-home

continuation of exercises done during therapy and requires assistance and stimulation because R.W.

is “starting out life with . . . maximum deficits . . . and so he can’t be just put in a crib and sat in a

corner and just fed when he cries and change his diaper. He needs somebody who is going to be

doing the things and following through with what the therapists are doing.” Dr. Aronin testified that

she was concerned that LaRocca and Gina did not fully understand the implications of R.W.’s

injuries and the significant care he will need for the rest of his life. The Department also presented

evidence that at the hearings prior to trial, the court ordered R.W. to remain in foster care because

“neither the child’s parent(s) nor any other person . . . is willing and able to provide the child with

a safe environment.”

                LaRocca cites In re A.S., 261 S.W.3d 76 (Tex. App.—Houston [14th Dist.] 2008, pet.

denied), in support of her claim that courts have been reluctant to find constructive abandonment

when parents make an effort to maintain contact with their children.                 A.S., however, is

distinguishable from the present situation because the mother in that case was prevented from seeing

her children due to incarceration. Id. at 89. While the mother in A.S. could not visit her children

from jail, she testified that she regularly visited them prior to becoming incarcerated, wrote to them

often while in jail, and provided the department with a list of alternate caregivers for the children.

Id. Despite her lack of contact with the children during her incarceration, the trial court found

insufficient evidence of constructive abandonment.8 Id. Here, LaRocca was not prevented from


        8
          The A.S. court found that the evidence was sufficient to support the trial court’s finding that
the father failed to maintain contact when he only visited his children once in three months before

                                                   14
seeing her son due to incarceration, nor did she exhibit the same level of persistence in maintaining

contact as that shown by the mother in A.S. Additionally, we can distinguish this case from A.S. in

that Dr. Aronin, Melody, and Garcia all testified that R.W.’s fragile medical state requires much

more parental involvement, attention, and training than a non-injured child. The children in A.S.

were healthy and did not require this heightened medical care.

               Though we recognize that LaRocca made what appear to be good-faith efforts to

comply with the family service plan and provide for the needs of her son, the jury was entitled to find

that these good intentions were outweighed by evidence that LaRocca is unable to provide for R.W.’s

medical needs and maintain a safe home environment. Looking at the evidence in the light most

favorable to the jury’s verdict, we conclude that the evidence was legally sufficient to support

constructive abandonment as a ground for termination. Viewing the evidence in a neutral light, as

we must in a factual-sufficiency review, the evidence in LaRocca’s favor—the sixteen visits and

four doctor’s appointments attended—would not prevent a reasonable factfinder from forming a firm

belief or conviction that LaRocca constructively abandoned R.W. As a result, we hold that the

evidence is factually sufficient to determine that statutory grounds exist for terminating LaRocca’s

parental rights under part (N) of family code section 161.001(1).

               As only one ground is required to support a termination of parental rights, we need

not address LaRocca’s arguments challenging the sufficiency of the evidence regarding subsections

(D), (E), and (O) of section 161.001(1) of the family code. See In re DM, 58 S.W.3d 801, 813 (Tex.




becoming incarcerated. In re A.S., 261 S.W.3d 76, 89 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied). The difference, it seems, lies in the amount of contact each parent had with the children
prior to incarceration.

                                                  15
App.—Fort Worth 2001, no pet.) (declining to address other grounds after upholding termination

on one ground under section 161.001(1)).


Best Interest of the Child

                In addition to a predicate ground for termination, the Department must also establish

by clear and convincing evidence that termination is in the best interest of the child. Tex. Fam. Code

Ann. § 161.001(2). Nonexclusive factors that the trier of fact may use in determining the best

interest of the child 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 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 which 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. Holley v. Adams, 544 S.W.2d

367, 371-72 (Tex. 1976). These factors are not exhaustive, and some may be inapplicable in certain

cases. Id. The Department need not prove all of these factors to prove by clear and convincing

evidence that termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27. Evidence of

one factor may be sufficient to support a finding of termination. In re J.O.C., 47 S.W.3d 108, 115

(Tex. App.—Waco 2001, no pet.).

                LaRocca argues that there is no evidence to support the jury’s finding that termination

was in R.W.’s best interest because LaRocca had taken a parenting class, obtained information

regarding R.W.’s special needs, and had created a plan to care for R.W. in Brownsville. Dr. Aronin,

                                                   16
Garcia, and Bloxham, however, all testified that termination of LaRocca’s parental rights was in

R.W.’s best interest. Dr. Aronin testified that the Cowgers are “outstanding,” very attentive and

involved, and that R.W. is happy in their care. She also testified that R.W.’s best chance of

obtaining his maximum potential would be in the care of the Cowgers. Garcia testified that

termination was in R.W.’s best interest because he has formed a bond with the Cowgers, that they

have always taken excellent care of him, and that he would be safe there. She further stated that she

gave LaRocca many chances to maintain contact, keep up with doctor’s appointments, and

become educated regarding R.W.’s condition, but that she failed to show progress in learning how

to properly care for R.W.

               Bloxham testified that she believed it was in R.W.’s best interest to terminate parental

rights because if he is adopted, he will receive Medicaid and special services. She further stated that

adoption would create permanency for R.W. that would not exist if R.W. remained in the custody

of the Department. She testified that she had not seen the commitment from LaRocca and Gina

necessary for reconciliation or placement in the Guerras’ home to be in R.W.’s best interest. Finally,

Janie Cravens, the attachment expert, testified that R.W. showed fourteen out of eighteen markers

of attachment with the Cowgers and that they are attuned and responsive to R.W.

               While the jury may not terminate parental rights merely because a child might be

better off living elsewhere, see D.M., 58 S.W.3d at 814, viewing the facts in the light most favorable

to the jury’s finding, evidence exists suggesting that LaRocca lacks the experience and knowledge

necessary to provide for R.W.’s needs and that termination is in R.W.’s best interest. Furthermore,

considering the evidence and leaving matters of credibility to the jury, a trier of fact could have



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reasonably found by clear and convincing evidence that termination was in R.W.’s best interest. For

these reasons, we cannot hold that the jury’s finding regarding R.W.’s best interest is unsupported

by the evidence.

               Having carefully reviewed the entire record, we conclude that the evidence is both

legally and factually sufficient to support the jury’s findings that (1) statutory grounds for

termination exist under section 161.001(1)(N) and (2) termination is in the child’s best interest.


                                         CONCLUSION

               Because the evidence is legally and factually sufficient to support the jury’s

finding terminating LaRocca’s parental rights, we affirm the trial court’s order of termination.



                                              __________________________________________

                                              Diane M. Henson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: November 4, 2010




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