
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-02-382-CV

  
IN THE INTEREST OF J.J.O.

  
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FROM THE 323rd DISTRICT COURT 
OF TARRANT COUNTY
 
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OPINION
 
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        Appellant 
C.O., appeals from the trial court’s order terminating her parental rights to 
her daughter J.J.O. In two points, Appellant challenges the legal and factual 
sufficiency of the evidence to support the termination of her parental rights. 
We affirm.
I. Factual and Procedural Background
        This 
case was tried to the bench on October 7, 2002. The evidence showed that the 
Texas Department of Protective and Regulatory Services (TDPRS)1 
first became involved with J.J.O. on January 28, 2002. On that date, the 
Arlington Police Department received a 911 call that a baby was crying in a room 
at a Days Inn and appeared to be unattended. Police arrived and obtained a key 
to Appellant’s room.2  Officer Neil Tarrant 
testified that the room was “completely blacked out” and that he found 
nineteen-month-old J.J.O. lying on the floor in a blanket.
        When 
Appellant returned to the hotel around 10:10 p.m., she was arrested on charges 
of abandonment and endangering a child for leaving J.J.O. alone for two to three 
hours.3  Officer Tarrant testified that, at the 
time of her arrest, Appellant did not seem concerned about the welfare of J.J.O., 
but instead only wanted to know whether she was being arrested for a felony. 
During trial, however, Appellant admitted that leaving J.J.O. alone was not a 
good decision. Because Appellant was taken to jail, J.J.O. was placed in a 
foster home.
        The 
next day, Child Protective Services (CPS) investigator Jill Johnson visited 
Appellant in jail and questioned her about allegations of neglectful 
supervision. According to Johnson, Appellant gave three inconsistent stories as 
to why she left J.J.O. unsupervised in the hotel room. In Appellant’s third 
story, which Johnson testified she believed, Appellant said she left the hotel 
room around seven o’clock p.m. with a friend named Curtis in a red truck. 
Appellant told Johnson that she asked Curtis to give her a ride to Pancho’s 
but that he could not help her out. Appellant then walked to Pancho’s, but she 
arrived after it closed. She told Johnson that she walked back to the hotel to 
get food from Wendy’s, which was inside the hotel.
        Appellant 
testified that all three stories were the same story and that she just gave 
different details. According to Appellant’s testimony at trial, she asked 
Curtis for a ride around 8:20, which he refused, and then walked to Pancho’s. 
Appellant further testified that, because she arrived at Pancho’s after nine, 
the restaurant was closed. Appellant stated that she went inside an open “exit 
door” and made a phone call. Appellant said she had called another friend; 
however, she could not remember why she made the phone call. Appellant testified 
that she took a taxi back to the Days Inn.
        Johnson 
testified that she was concerned about the inconsistencies in Appellant’s 
stories and Appellant’s lack of care for her child. Johnson also stated that 
she was concerned because of Appellant’s criminal history. Johnson questioned 
Appellant about her use and possession of controlled substances and 
Appellant’s prior arrest for prostitution. While Appellant told Johnson that 
she was not using drugs at that time, she admitted that she smoked and drank 
occasionally and that she had been caught offering oral sex to an undercover 
police officer. Appellant admitted during trial that she was arrested for 
prostitution in September 1999, which was roughly nine months before J.J.O. was 
born on May 31, 2000. Appellant initially named Jesse Anderson as J.J.O.’s 
father, but she later stated that she did not know the identity of J.J.O.’s 
father.
        As 
a result of the investigation, on January 30, 2002, TDPRS filed a petition for 
protection of J.J.O., for conservatorship, and for termination of Appellant’s 
parental rights. On February 2, 2002, Dawn Adkins, who is an ongoing caseworker 
for CPS, was assigned J.J.O.’s case. Adkins testified that in March 2002 TDPRS 
drew up service plans for Appellant with the goal of reuniting her with J.J.O. 
Appellant’s service plan was intended to stabilize her lifestyle by requiring 
that she obtain housing, maintain a job, participate in counseling and parenting 
classes, and undergo a psychological evaluation. Adkins worked with Appellant 
from February until her trial and testified about Appellant’s lifestyle and 
her efforts to comply with her service plan.
        At 
the time of her trial, Appellant was several months pregnant with her second 
child. Appellant testified that Julio Herrera was the father of the second child 
and that they had been in a relationship from April to June of 2002, when she 
lost contact with him. Appellant testified that Herrera moved to Laredo, Texas 
and that he did not know she was pregnant with his child.4
        Adkins 
testified that when she met Appellant, Appellant was working at K-Mart and at a 
dentist’s office as a dental assistant. She worked both jobs until she quit 
both of them in April 2002. When Adkins asked Appellant how she was supporting 
herself, Appellant said that her friends gave her money. During trial, Appellant 
testified that she had been unemployed since April but had a job “starting 
tomorrow” at Boston Market.
        Adkins 
also testified that Appellant never maintained a stable address. Appellant 
likewise testified that she had a hard time finding a place to live. After being 
released from jail in January, she stayed with Dennis Johnson until he “got 
promoted and . . . moved to a house.” She then lived with a friend named Al 
Davis at 3232 East Abrams for “about a week or so.” Appellant testified, 
“Since then, I’ve been just about everywhere.”
        She 
testified that she stayed in different friends’ apartments and in hotel rooms, 
but that she never stayed in a hotel more than one night. Appellant first 
testified that she paid for the hotel rooms herself. When asked where she got 
the money, Appellant answered, “The baby’s father used to give me money.” 
Appellant then clarified that she was referring to Herrera. TDPRS asked 
Appellant how she had any money after she lost contact with Herrera in June, and 
she stated that she had been saving some of the money he gave to her and that 
she sold his car. Appellant testified that she ran out of money in September 
2002. Appellant testified that, at the time of trial, she had found affordable 
housing with CPS’s assistance.
        Adkins 
testified that she scheduled a visit between Appellant and J.J.O. on February 
15, 2002. Adkins was present and observed the interaction between Appellant and 
J.J.O. Adkins testified that Appellant was waiting in her office when she came 
in with J.J.O. According to Adkins, Appellant was sitting on a couch, and she 
did not say hello to J.J.O. or get up to hug J.J.O. when she arrived. Adkins 
further testified that Appellant did not talk to or interact with J.J.O., who 
stood in the middle of the room staring at Appellant. Adkins testified that 
“this went on for an hour.” Adkins later expressed to Appellant her concerns 
about the lack of interaction during the visit, but Appellant “never expressed 
any concern for [J.J.O.] at all.” Adkins stated that the only response 
Appellant made with respect to her concerns about the interaction was to say, 
“I want her.”
        Adkins 
testified that from February through trial, Appellant did not regularly visit 
J.J.O. As discussed in greater detail below, Appellant intermittently visited 
with J.J.O. from February through June, when TDPRS lost contact with Appellant. 
Appellant later met with J.J.O. once on September 26. Adkins testified that 
Appellant came to twelve of the weekly-scheduled hour-long visits, but she also 
stated that Appellant was late to four of those visits. She also testified that 
while the visits “seemed to get better later on, . . . it was either hit or 
miss. Mom was either going to interact with her daughter slightly or not at 
all.” In fact, Adkins described the September 26 meeting as “horrible” and 
a “very bad visit.” Adkins testified that Appellant arrived ten minutes 
late, sat silently on the couch, and refused to play with J.J.O., even after 
Adkins encouraged her to do so. J.J.O. repeatedly asked “Where’s my 
momma,” and was looking for her foster mother and not Appellant. When they 
went back to the visitation room, “[J.J.O.] kept trying to get out of the 
room.”
        With 
respect to counseling, Adkins testified that Appellant did not engage in any 
counseling services. Because of her concerns about the lack of interaction, 
Adkins placed Appellant’s name on a waiting list to attend attachment therapy 
classes. Adkins stated that Appellant had problems with transportation, but she 
also stated that Appellant had disappeared by the time the classes were open to 
her. During trial, Appellant admitted that she needed attachment classes because 
she was not attached to J.J.O. Adkins also scheduled a psychological examination 
for Appellant in July, but that was also when TDPRS lost contact with her. 
Appellant testified that the reason she did not attend counseling was because 
there was no funding for counseling. Adkins testified that the State never ran 
out of funds to pay for counseling.
        Adkins 
also testified that she set up parenting classes for Appellant on Mondays from 
4:00 to 5:30 and that she made arrangements to drive Appellant to those 
meetings. Adkins drove her to the first meeting, but she did not drive Appellant 
to any other parenting classes after Appellant failed to show up for a ride to 
another class. Appellant testified that she attended eight meetings and that she 
had transportation on the bus. Appellant testified that there are eight 
parenting classes and that she took the first four and then repeated those same 
four classes. Adkins testified that Appellant attended a total of four parenting 
classes.
        During 
the time Adkins was working with Appellant, she asked Appellant to submit to a 
random urinalysis. Appellant tested positive for cocaine. Adkins testified that 
Appellant admitted that she used cocaine sometimes and was concerned because 
“she was living with no job and no place to live.” Adkins said, “It was 
the kind of lifestyle I see in a lot of drug parents that I work with.” 
Appellant admitted that she had used cocaine and that she was pregnant with her 
second child at the time she was using drugs. Appellant testified that she did 
not know she was pregnant at the time she used the cocaine and that she did not 
use drugs anymore.
        Because 
of Appellant’s drug use and her lack of any income or housing, Adkins offered 
to place Appellant in First Choice, an inpatient drug treatment program, 
beginning in June. Adkins testified that at First Choice, Appellant “would 
attend parenting classes there, she would get all kinds of counseling; group, 
individual, and the attachment therapy.” Additionally, the program would help 
Appellant get housing and job training when she completed the program, and First 
Choice would place J.J.O. with her there. Adkins testified that Appellant 
refused to participate in the First Choice program. At trial, Appellant gave the 
following reason for her refusal to be involved with the drug treatment program: 
“I was waiting for my housing. . . . They had already called my name for 
housing[,] and I was waiting for it.”5
        From 
June to August, TDPRS lost contact with Appellant and was unable to contact her, 
despite its efforts to do so. Appellant had never given any contact information 
to TDPRS concerning her location or anyone who could find her. Adkins testified 
that she went to some of the hotels where Appellant liked to stay, but she was 
unable to locate Appellant because the rooms “were never listed in her 
name.” Adkins learned toward the end of August that Appellant had been 
arrested for resisting arrest and for possession of drug paraphernalia, and she 
regained contact with Appellant while she was in jail on August 28.
        At 
trial, Appellant testified to the circumstances that led to her arrest in 
August. She testified that she was “checking” the car Herrera had left her 
and “dozed off” in the back seat. A police officer saw her sleeping in the 
car with both the driver’s door and a back door open. The officer began 
questioning her and asked her to get out of the car. Appellant admitted that as 
she reached down to pick up a shoe, “he came and I elbowed him,” which led 
to her arrest. While Appellant was sitting in the patrol car, another officer 
searched her car and found some crack pipes. Appellant remained in jail from 
August 20 to August 28, and she testified at trial that the charges had been 
dismissed.
        During 
the August 28 meeting, Adkins advised Appellant that TDPRS intended to terminate 
her parental rights to J.J.O. Adkins testified that, upon hearing TDPRS’s 
plan, Appellant did not ask about her daughter, but “[said] she wanted to see 
her.” Appellant was going to be released that night, so Adkins asked Appellant 
to contact her the next day. Despite Adkins’s request, Appellant waited a week 
before calling to schedule a visit with J.J.O. Appellant testified that she sold 
Herrera’s car and used the money to live in hotels throughout the month of 
September before she ran out of money.
        Appellant 
eventually visited J.J.O. on September 26, as described above. Adkins spoke with 
Appellant after J.J.O. left the room and again told Appellant that she would be 
recommending that Appellant’s parental rights to J.J.O. be terminated. Adkins 
testified that she told Appellant she would make the recommendation that she 
thought was in J.J.O.’s best interest. According to Adkins, she told 
Appellant, “I’m working with you, who hasn’t seen her daughter in three 
months and refused to do drug treatment or any other services, and I said, if 
you were in my shoes, what would you do? Would you recommend that your daughter 
be returned to you?” Adkins testified that Appellant said, “[N]o, I 
wouldn’t at this time.”
        On 
cross-examination, Adkins testified that J.J.O. was examined when she came into 
TDPRS’s care. She further testified that J.J.O. was in good health and agreed 
that she was “developmentally on-target.” On redirect, however, Adkins 
testified that J.J.O.’s caregivers initially observed that she was withdrawn 
and did not interact or play well. Adkins testified that, as time progressed, 
she noticed a “huge change” in J.J.O. In contrast, Adkins testified that, 
over the eight months she had been working with Appellant, Appellant had not 
changed and was still exhibiting the same behaviors that she had exhibited when 
Adkins first began to work with her.
        Adkins 
asked the court to terminate Appellant’s parental rights. CASA advocate Sandy 
Hage, who had visited with J.J.O. four to five times between April and October, 
also testified to the “vast change” in J.J.O. since she was placed in foster 
care. Hage testified to her contact with J.J.O., and she also recommended 
terminating Appellant’s parental rights and testified that termination would 
be in the best interest of J.J.O.
        After 
hearing and considering all of the evidence, the trial court entered a judgment 
terminating Appellant’s parental rights. The court made findings that 
termination was in J.J.O.’s best interest and that Appellant (1) knowingly 
placed or knowingly allowed the child to remain in conditions or surroundings 
which endangered the physical or emotional well-being of the child, (2) engaged 
in conduct or knowingly placed the child with persons who engaged in conduct 
which endangered the physical or emotional well-being of the child, and (3) 
constructively abandoned the child who had been in the permanent or temporary 
managing conservatorship of TDPRS or an authorized agency for not less than six 
months. See Tex. Fam. Code Ann. §§ 
161.001(1)(D), (E), (N), (2) (Vernon 2002).
II. Points on Appeal
        In 
two points, Appellant argues that the evidence is legally and factually 
insufficient to support the grounds for termination under section 161.001(1)(D), 
(E), and (N) and to support the trial court’s finding that termination of her 
parental rights was in the best interest of J.J.O. See id. The State 
argues that because Appellant failed to file a statement of points under family 
code section 263.405(b), she has forfeited her complaints on appeal. See id. 
§ 263.405(b). Alternatively, the State responds that the evidence is both 
legally and factually sufficient to support the challenged findings.
III. Effect of Section 263.405(b)
        We 
first address the State’s contention that Appellant waived her appellate 
points by failing to file a statement of points with the trial court in 
accordance with section 263.405(b) of the family code. See id. Family 
code section 263.405(b) provides that “[n]ot later than the 15th 
day after the date a final order is signed by the trial judge, a party intending 
to appeal the order must file with the trial court a statement of the point or 
points on which the party intends to appeal.” Id. It is undisputed that 
Appellant timely filed her notice of appeal, but she did not file a section 
263.405(b) statement of points. See id.
        In 
its brief, the State asks us to reconsider two of our opinions interpreting 
section 263.405. See id.; In re W.J.H., 111 S.W.3d 707 (Tex. 
App.—Fort Worth 2003, pet. denied); In re D.R.L.M., 84 S.W.3d 281 (Tex. 
App.—Fort Worth 2002, pet. denied). Neither of these cases, however, addresses 
the precise question before us: whether the absolute failure to file a statement 
of points would waive an appellant’s nonjurisdictional issues on appeal. 
During the pendency of this appeal, however, we have answered this question. See 
In re S.J.G., 124 S.W.3d 237, 240 (Tex. App.—Fort Worth 2003, pet. 
denied).
        In 
S.J.G., we examined section 263.405 in its entirety and observed that its 
“objectives are to address post-judgment delays, correct provisional 
inconsistencies, and provide a mechanism through which a party can compel the 
trial court to timely set the case for final trial.” Id. at 242 (citing 
D.R.L.M., 84 S.W.3d at 290). We determined that “[c]onstruing 
noncompliance with subsection (b) as a waiver of all nonjurisdictional appellate 
issues does not reduce any post-judgment appellate time period and does not weed 
out frivolous parental-termination appeals.” Id. at 243. Thus, we held 
that under the facts, “[a]ppellant’s failure to file a statement of points 
is not a jurisdictional defect that prevents this court from addressing his 
issues on appeal.” Id.
        After 
this case was submitted, we granted leave for TDPRS to file a supplemental 
brief, in which TDPRS asks us to reconsider S.J.G., arguing that our 
holding in S.J.G. renders the provision found in section 263.405 a 
nullity and is at odds with a decision from the Amarillo Court of Appeals. See 
In re T.C., No. 07-03-0077-CV, 2003 WL 21658314, at *2 (Tex. App.—Amarillo 
July 15, 2003, no pet.) (memo. op.) (declining to follow W.J.H. and 
holding that appellant waived point that was not included in her section 263.405 
statement of points). Under the doctrine of stare decisis, we decline to 
reconsider S.J.G. See Grapevine Excavation, Inc. v. Maryland Lloyds, 
35 S.W.3d 1, 5 (Tex. 2000) (“Adhering to precedent fosters efficiency, 
fairness, and legitimacy.”). Accordingly, we reaffirm and follow S.J.G.’s 
construction of section 263.405(b) of the family code, and we hold that 
Appellant’s failure to file a statement of points does not constitute a waiver 
of her nonjurisdictional issues on appeal. See Tex. Fam. Code Ann. § 263.405(b); S.J.G., 
124 S.W.3d at 243. We now turn to Appellant’s legal and factual sufficiency 
challenges.
IV. Termination of Parental Rights
        A 
parent’s rights to “the companionship, care, custody and management” of 
his or her children are constitutional interests “far more precious than any 
property right.” Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 
1388, 1397 (1982). “While parental rights are of constitutional magnitude, 
they are not absolute. Just as it is imperative for courts to recognize the 
constitutional underpinnings of the parent-child relationship, it is also 
essential that emotional and physical interests of the child not be sacrificed 
merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 
2002).
        In 
a termination case, the State seeks not just to limit parental rights but to end 
them permanently—to divest the parent and child of all legal rights, 
privileges, duties, and powers normally existing between them, except for the 
child’s right to inherit. TEX. FAM. CODE ANN. § 161.206(b) (Vernon 2002); Holick v. 
Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination 
proceedings and strictly construe involuntary termination statutes in favor of 
the parent. Holick, 685 S.W.2d at 20-21; In re D.T., 34 S.W.3d 
625, 630 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g).
        In 
proceedings to terminate the parent-child relationship brought under section 
161.001 of the family code, the petitioner must establish one or more of the 
acts or omissions enumerated under subdivision (1) of the statute and must also 
prove that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 
161.001; Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984); Swate 
v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied). Both 
elements must be established; termination may not be based solely on the best 
interest of the child as determined by the trier of fact. Tex. Dep’t of 
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
        A. 
Burden of Proof
        Termination 
of parental rights is a drastic remedy and is of such weight and gravity that 
due process requires the petitioner to justify termination by “clear and 
convincing evidence.” TEX. FAM. CODE ANN. §§ 161.001, 161.206(a); In re G.M., 
596 S.W.2d 846, 847 (Tex. 1980). This intermediate standard falls between the 
preponderance standard of ordinary civil proceedings and the reasonable doubt 
standard of criminal proceedings. G.M., 596 S.W.2d at 847; D.T., 
34 S.W.3d at 630. It is defined as 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.
        B. 
Standard of Review
        The 
higher burden of proof in termination cases alters the appellate standard of 
legal sufficiency review. In re J.F.C., 96 S.W.3d 256, 265 (Tex. 2002). 
The traditional no-evidence standard does not adequately protect the parent‘s 
constitutional interests. Id. In reviewing the evidence for legal 
sufficiency in parental termination cases, we must determine “whether the 
evidence is such that a factfinder could reasonably form a firm belief or 
conviction” that the grounds for termination were proven. Id. at 
265-66. We must review all the evidence in the light most favorable to the 
finding and judgment. Id. at 266. This means that we must assume that the 
factfinder resolved any disputed facts in favor of its finding if a reasonable 
factfinder could have done so. Id. We must also disregard all evidence 
that a reasonable factfinder could have disbelieved. Id. We must 
consider, however, undisputed evidence even if it does not support the finding. Id.
        The 
higher burden of proof in termination cases also alters the appellate standard 
of factual sufficiency review. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). 
“[A] finding that must be based on clear and convincing evidence cannot be 
viewed on appeal the same as one that may be sustained on a mere 
preponderance.” Id. In considering whether the evidence of termination 
rises to the level of being clear and convincing, we must determine “whether 
the evidence is such that a factfinder could reasonably form a firm belief or 
conviction” that the grounds for termination were proven. Id. Our 
inquiry here is whether, on the entire record, a factfinder could reasonably 
form a firm conviction or belief that Appellant violated section 161.001(1)(D), 
(E), or (N) and that the termination of the parent’s parental rights would be 
in the best interest of the child. Id. at 28.
        C. 
Constructive Abandonment
        Appellant 
challenges the legal and factual sufficiency of the evidence with respect to the 
constructive abandonment ground for termination. To establish constructive 
abandonment under section 161.001(1)(N), TDPRS must prove by clear and 
convincing evidence that: (1) Appellant constructively abandoned J.J.O. who had 
been in the temporary managing conservatorship of TDPRS for not less than six 
months; (2) TDPRS made reasonable efforts to return J.J.O. to Appellant; (3) 
Appellant has not regularly visited or maintained significant contact with J.J.O.; 
and (4) Appellant has demonstrated an inability to provide J.J.O. with a safe 
environment. Tex. Fam. Code Ann. 
§ 161.001(1)(N); In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 
2002, no pet.). Because Appellant concedes that TDPRS met its burden with 
respect to the first and second elements, we need only address whether there is 
legally and factually sufficient evidence that Appellant has not regularly 
visited or maintained significant contact with J.J.O. and that she has not 
demonstrated an ability to provide J.J.O. with a safe environment. See Tex. Fam. Code Ann. § 161.001(1)(N); In 
re K.M.B., 91 S.W.3d at 25.
        Appellant 
points to the fact that she made twelve visits with J.J.O. during the nine month 
service plan as evidence that she maintained significant contact with J.J.O. 
During trial, Appellant testified that TDPRS scheduled weekly hour-long visits 
with J.J.O. Appellant testified that she initially thought one hour was not long 
enough but, as time went on, she changed her mind. Appellant stated, “I had 
other things I was worrying about at that time,” and she agreed that, 
“[l]ater on,” the hour-long visitations became a burden. Appellant explained 
that she had difficulty visiting J.J.O. because she was sick and had found out 
that she was pregnant with her second child.
        In 
its brief, TDPRS presents a detailed chronology of the scheduled visits between 
Appellant and J.J.O. After TDPRS took J.J.O. into custody, Appellant first met 
with her on February 15, 2002. Appellant did not touch or speak to J.J.O. for 
the entire hour. On February 27, Appellant called and cancelled the visit 
forty-five minutes after it was to have started. Appellant was on time for 
visits on the first and eighth of March. On March 12, Appellant arrived thirty 
minutes late, but she was on time for the visit on March 19. Adkins testified 
that Appellant failed to show up for the visits on March 26 and April 2.
        Appellant 
then attended three visits in April before missing the scheduled April 30 visit. 
Appellant did not show up for the May 7 visit, but she attended the May 14 
visit. J.J.O. was sick on June 4, so that visit was cancelled. Adkins testified 
that, on June 11, Appellant was twenty minutes late, spent ten minutes in the 
bathroom, and left ten minutes early. Appellant failed to attend either the June 
18 or June 25 meetings and lost contact with TDPRS until Adkins found her in 
jail on charges of resisting arrest and possession of drug paraphernalia.
        When 
Appellant was released from jail, she waited a week before calling TDPRS to 
schedule another visit. Appellant testified that the appointment was scheduled 
for September 9, and “I was late.” Adkins testified that the visit was 
scheduled for September 11 and that she waited with J.J.O. for thirty minutes 
before leaving. Appellant waited until September 18 to contact TDPRS about 
setting up another visit, which was set for September 26. Appellant arrived ten 
minutes late for the September 26 visit, which was her first visit with J.J.O. 
since June 11. As mentioned above, Adkins testified that the September visit was 
“horrible” and “a very, very long hour.” Appellant also admitted that it 
was not a good visit. Adkins testified that “[t]he interaction was 
terrible,” and further testified that Appellant “did not say one word to 
that child,” even though “[she] hadn’t seen her child in three months.” 
Additionally, J.J.O did not did not recognize Appellant as her mother and, 
instead, referred to her foster mother as “momma.”
        After 
carefully reviewing and considering the evidence, we hold the evidence is both 
legally and factually sufficient to support the trial court’s finding that 
Appellant has not regularly visited or maintained significant contact with J.J.O. 
See Tex. Fam. Code Ann. § 
161.001(1)(N)(ii); In re R.M., No. 14-02-00221-CV, 2003 WL 253291, at *5 
(Tex. App.—Houston [14th Dist.] Feb. 6, 2003, no pet.) (memo. op.) 
(holding evidence legally and factually sufficient to show appellant did not 
regularly visit or maintain significant contact with child); In re H.R., 
87 S.W.3d 691, 699 (Tex. App.—San Antonio 2002, no pet.) (holding evidence was 
legally and factually sufficient to support constructive abandonment where 
evidence reflected intermittent visits); In re P.R., 994 S.W.2d 411, 416 
(Tex. App.—Fort Worth 1999, pet. dism’d w.o.j.) (holding evidence sufficient 
to support constructive abandonment finding where mother sporadically visited 
child, used drugs, and failed to comply with service plan), disapproved of on 
other grounds by J.F.C., 96 S.W.3d at 267.
        In 
regard to the fourth element of constructive abandonment, Appellant argues that 
she has a “proven history of taking care of her child considering that J.J.O. 
was considered healthy and developmentally on target” at the time TDPRS 
examined J.J.O. Appellant claims that, because she testified that she was living 
in an apartment and planned on finding child care for J.J.O., the evidence is 
legally and factually insufficient to support the fourth element of section 
161.001(1)(N). See Tex. Fam. Code 
Ann. § 161.001(1)(N)(iii). We disagree.
        We 
acknowledge that Appellant testified that she had recently found housing and 
that she planned on starting work on October 8, 2002. The record reflects, 
however, that TDPRS became involved with Appellant when she left her baby J.J.O. 
alone in a hotel room. During trial, Appellant admitted that she neglected J.J.O. 
by leaving her in the hotel room. Appellant also admitted that she had been 
arrested for prostitution. Throughout the time TDPRS was working with Appellant, 
she quit her jobs and lived predominantly in hotels and motels, which were paid 
for by people she described as “friends.” Thus, Appellant failed to maintain 
steady housing or employment. During that time Appellant—while pregnant with 
her second child—tested positive for cocaine and then refused available drug 
treatment. A few months later, she was arrested for possession of crack pipes. 
Further, Appellant only attended half of her parenting classes, and she missed 
the opportunity for counseling and a psychological evaluation when she 
disappeared for three months.
        We 
have carefully reviewed the entire record. Looking at all of the evidence in the 
light most favorable to the trial court’s findings, giving due consideration 
to evidence that the fact finder could reasonably have found to be clear and 
convincing, we hold that a reasonable trier of fact could have formed a firm 
belief or conviction that Appellant constructively abandoned J.J.O. under 
section 161.001(1)(N). See id.
        Appellant 
challenges the legal and factual sufficiency of all three of the statutory 
grounds for termination pleaded by TDPRS. However, only one finding under 
section 161.001(1) is necessary to support a judgment of termination. Id. 
§ 161.001(1); In re D.M., 58 S.W.3d 801, 813 (Tex. App.—Fort Worth 
2001, no pet.); In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 
2000, no pet.); see also Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 
647, 649 (Tex. 1990) (op. on reh’g). Accordingly, because we conclude there is 
both legally and factually sufficient evidence to support the trial court’s 
finding under family code section 161.001(1)(N), we need not address 
Appellant’s remaining points with respect to the trial court’s findings 
under section 161.001, subsections D and E. See Tex. Fam. Code Ann. § 161.001(1)(D), 
(E), (N); Tex. R. App. P. 47.1. We 
overrule Appellant’s first point.
        D. 
Best Interest of the Child
        Appellant 
also challenges the legal and factual sufficiency of the evidence with respect 
to the trial court’s finding that terminating her parental rights was in the 
best interest of J.J.O. Nonexclusive factors that the trier of fact in a 
termination case 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; some listed 
factors may be inapplicable to some cases; other factors not on the list may 
also be considered when appropriate. C.H., 89 S.W.3d at 27. Furthermore, 
undisputed evidence of just one factor may be sufficient in a particular case to 
support a finding that termination is in the best interest of the children. Id. 
On the other hand, the presence of scant evidence relevant to each Holley 
factor will not support such a finding. Id.
        Hage 
testified that it was in the best interest of J.J.O. to terminate Appellant’s 
parental rights. She testified that based on the information on file and her 
observations of Appellant and J.J.O., she “[did not] believe [Appellant] 
currently has any way to provide for [J.J.O.] or care for her.” In addition, 
Hage stated that “because of what I’ve seen in the visits and [J.J.O.’s] 
demeanor, I would have great concern for [J.J.O.’s] emotional health.” Thus, 
Hage recommended that the court terminate Appellant’s parental rights.
        Hage 
was present during Appellant and J.J.O.’s visit in June, and she testified 
that Appellant held then two-year-old J.J.O. for a while, but that J.J.O. “sat 
there with her fingers in her mouth” and did not interact. Hage later 
testified that during her last observation of Appellant and J.J.O. at their 
September 26 visitation, J.J.O.’s “body stiffen[ed]” when Appellant walked 
in the room. According to Hage, J.J.O. walked over to Appellant “like she had 
lead in her shoes, . . . and she kept looking for the foster mom.” She 
described how J.J.O. wanted to leave the room because she did not want to be in 
the room with Appellant. Adkins testified that J.J.O. asked for her foster 
mother “over and over.”
        Appellant 
refers to Adkins’s testimony that J.J.O. was healthy and developmentally 
on-target at the time TDPRS examined her. Adkins and Hage, however, testified 
that despite J.J.O.’s physical health, she was shy, withdrawn, and did not 
interact well with her care givers. Both Adkins and Hage attested to the changes 
in J.J.O., which resulted from her living in foster care. Adkins testified that, 
whereas J.J.O. was withdrawn and quiet at first, at the time of trial “[s]he 
smiles, . . . runs, and plays; . . . she can say her A-B-C’s; and she can sing 
songs.” Likewise, Hage testified that the first time she visited J.J.O. in 
foster care, J.J.O. “kept her fingers in her mouth the whole time, . . . 
didn’t talk, . . . [and] didn’t smile.” Since that meeting, Hage noticed a 
“vast change” in J.J.O. For example, on one of Hage’s visits, J.J.O. was 
smiling, laughing, swimming, and playing. J.J.O. also did not put her fingers in 
her mouth, and she was talking with her foster mother.
        Adkins 
testified that in the visits Appellant had with J.J.O. between January and June, 
the interaction was either “hit or miss.” Both Adkins and Hage testified 
that the final visitation between Appellant and J.J.O. in September was not a 
good visit and that there was no interaction between mother and daughter. During 
the trial, Adkins testified that, notwithstanding the fact that Appellant failed 
to complete counseling sessions, attend parenting classes, or obtain steady 
housing and employment, “there is an attachment issue. [Appellant and J.J.O.] 
just don’t appear to have a bond.” In contrast, Adkins testified that J.J.O. 
had bonded with her foster family.
        As 
described in greater detail above, Appellant has failed to stabilize her 
lifestyle. She admitted that she neglected J.J.O. by leaving her in the hotel 
room alone. She used cocaine not only at a time when she was supposed to be 
complying with TDPRS’s service plan, but also while she was pregnant with her 
second child. Appellant refused the opportunity to receive inpatient drug 
treatment, where she would have been reunited with J.J.O. because she claimed to 
be waiting on housing. Then, Appellant was arrested after the police found her 
sleeping in a car with drug paraphernalia. Until the time of trial, Appellant 
had failed to maintain steady housing or employment. When Adkins was asked 
whether she thought Appellant would do anything different if she was given 
additional time to work at her service plan, Adkins stated, “It’s been eight 
months. The child has been sitting and waiting on her for eight months, and I 
haven’t seen a difference, so I don’t know.” Adkins testified that she had 
not seen a change in Appellant’s behaviors.
        J.J.O.’s 
biological father was never identified or located. TDPRS attempted to locate men 
named Jesse Anderson and Al Smith, both of whom Appellant had identified as the 
possible biological father of J.J.O., but they were unsuccessful at finding the 
father. Further, Adkins testified that no one had registered with the paternity 
registry claiming to be the father of J.J.O. Adkins testified that TDPRS’s 
plan for J.J.O. was “[a]doption with the foster family she’s with now.” 
Adkins testified that the foster family was licensed to adopt and that they had 
expressed a desire to adopt J.J.O., with whom they had developed a bond.
        Appellant 
testified that she planned on working at Boston Market for seven dollars an 
hour, maintaining steady housing, and eventually putting J.J.O. in day care once 
her second child was born. Appellant’s case was tried to the bench; therefore, 
the trial court judged the credibility of the witnesses and determined the 
weight to be accorded to their testimony. See Davis v. Travis County Child 
Welfare Unit, 564 S.W.2d 415, 420-21 (Tex. App.—Austin 1978, no writ). A 
trial court can measure the future conduct of parents by their recent past 
conduct, but is not required to believe that there has been a lasting change in 
a parent’s attitude since his or her children were taken. Id. at 421. 
Here, the trial court, after considering and weighing all of the evidence, could 
have rejected Appellant’s claims that she intended to change her lifestyle to 
provide and care for J.J.O.
        Having 
carefully reviewed the entire record, we conclude that there is both legally and 
factually sufficient evidence to support the trial court’s finding under 
family code section 161.001(2) that termination of Appellant’s parental rights 
is in the best interest of J.J.O. See Tex. Fam. Code Ann. § 161.001(2). 
Accordingly, we overrule Appellant’s second point.
V. Conclusion
        Having 
overruled both of Appellant’s points, we affirm the trial court’s judgment.


  
                                                          ANNE 
GARDNER
                                                          JUSTICE

 
PANEL A:   CAYCE, 
C.J. and GARDNER, J.; and SAM J. DAY, J. (Retired, Sitting by Assignment)
 
DELIVERED: March 11, 2004


NOTES
1.  
Effective February 1, 2004, the legislature renamed TDPRS as the Texas 
Department of Family and Protective Services (TDFPS). See Act of June 6, 
2003, 78th Leg., R.S., H.B. 2292, §§ 1.27, 1.29(b) (stating that a 
reference in law to TDPRS also means TDFPS and providing the effective date of 
the name change). In this opinion, we will use TDPRS as the agency name.
2.  
Testimony revealed that Appellant’s room had been registered under the name of 
a man whom Appellant referred to as one of her friends, but who had only known 
Appellant for a week and was only able to identify Appellant by her first name 
and physical description.
3.  
According to Officer Tarrant, the criminal charges were later dropped.
4.  
Despite Appellant’s testimony that Herrera was unaware that she was pregnant 
with his child, Appellant also testified that “my baby’s father had left me 
some money for the second baby.”
5.  
When Appellant testified about waiting on “housing,” she was referring to 
low-income housing through CPS and the Arlington Housing Authority.
