In re SJ, No. 14-07-00785-CV (Tex.App.- Houston [14th Dist.] Feb. 24, 2009)(Seymore)
(
termination of parental rights affirmed, lack of interest, medical neglect, etc.)
_______________

IN THE INTEREST OF S.J.
                                                                                                                                      
On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 2006-09754J
                                                                                                                                         
M E M O R A N D U M  O P I N I O N

Appellant, Q.J., appeals a decree terminating the parent-child relationship between appellant and
her minor daughter, S.J.  In her sole issue, appellant contends the evidence is factually insufficient to
support the trial court's findings that (1) appellant committed one of the
statutory grounds for
termination
and (2) termination is in the best interest of the child. Because all dispositive issues
are settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Background [1]  

S.J. was born in Houston on July 8, 2006, when appellant was seventeen years old.  On October 25,
2006, The Department of Family and Protective Services (“the Department") took possession of S.
J., based on "medical neglect," and filed a petition for protection, conservatorship, and termination of
appellant's parental rights if reunification were not possible.  On the same day, the trial court signed
an emergency order appointing the Department as temporary sole managing conservator and set a
hearing for November 7, 2006.  After the November 7 hearing, the trial court signed another order,
retaining the Department as temporary managing conservator, but placing S.J. temporarily with her
maternal grandmother, Bridgetta McCarthy, who then lived in Houston, and requiring that appellant
complete a family service plan.

On December 12, 2006, the trial court signed another temporary order, requiring appellant to
complete the service plan that had been outlined by the Department and other similar tasks specified
in the order.  Appellant never completed any tasks outlined in the service plan and order.  In January
2007, appellant left Texas to reside in Louisiana.  S.J. remained in McCarthy's temporary care.  In an
amended petition filed in March 2007, the Department renewed its request for termination if
reunification were not possible and requested McCarthy be named permanent managing
conservator.  However, S.J. was removed from McCarthy's care sometime in Spring of 2007 based
on the Department's determination of “neglectful supervision" and placed in foster care, where she
remained at the time of trial. [2]

On August 16, 2007, the court conducted a bench trial on the Department's request for termination of
parental rights.  At the beginning of trial, the Department orally non-suited its previous request that
McCarthy be named permanent managing conservator.  On August 30, 2007,  the trial court signed a
decree terminating the parent-child relationship between appellant and S.J. and appointing the
Department as sole managing conservator.  

II.  Standard of Review

To terminate a parent-child relationship, a trial court must find by clear and convincing evidence (1)
the parent has committed one or more of the acts outlined in Texas Family Code section 161.001(1)
as grounds for termination and (2) termination is in the best interest of the child.  Tex. Fam. Code
Ann.  § 161.001 (Vernon 2008).

Involuntary termination of parental rights involves fundamental constitutional rights.  Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985).  Due process requires application of the clear-and-convincing-
evidence standard in a termination trial.  In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see Tex.
Fam. Code Ann.  § 161.001.  “'Clear and convincing evidence' means the measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established."  Tex. Fam. Code Ann.  § 101.007 (Vernon 2008).

When reviewing factual sufficiency under the clear-and-convincing-evidence standard, we must
consider all the evidence equally, both disputed and undisputed, to determine whether a factfinder
could reasonably form a firm belief or conviction about the truth of the allegations.  See In re J.F.C.,
96 S.W.3d at 266.  We consider whether disputed evidence is such that a reasonable factfinder
could not have resolved that disputed evidence in favor of its finding.  Id.  “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 conviction,
then the evidence is factually insufficient."  Id.

III.  Analysis

In this case, the trial court found by clear and convincing evidence that appellant committed four acts
outlined in section 161.001(1) and termination of the parent-child relationship is in S.J.'s best
interest.  Appellant challenges all of these findings.  

A.        Statutory Ground for Termination under Section 161.001(1)(E)

We conclude the evidence is factually sufficient to support the trial court's finding on the statutory
ground for termination under section 161.001(1)(E).  The trial court found that appellant “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." See Tex. Fam. Code Ann.  § 161.001(1)(E).

Because the Department was required to prove only one ground outlined in section 161.001, see
Tex. Fam. Code Ann.  § 161.001, we will discuss only the  endangerment finding relative to the
statutory grounds for termination.[3]  Under section 161.001(1)(E), “endanger" means “to expose to
loss or injury; to jeopardize."  Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987);
see In re J.I.T.P., 99 S.W.3d 841, 844 (Tex. App.- Houston [14th Dist.] 2003, no pet.).

Pertinent to our review, at trial, the Department presented (1) testimony of Adwoa Yeboah, the
Department caseworker assigned to S.J.; and (2) a Permanency Plan and Permanency Progress
Report (“the report") prepared approximately a month before trial, explaining the Department's
involvement with S.J.[4]  Appellant did not appear at trial and presented only the testimony of her
mother, Bridgetta McCarthy.[5]

Yeboah's testimony and the Department's report showed that appellant engaged in conduct which
endangered S.J.'s physical well-being by neglecting necessary medical care for the child.  
Specifically, S.J. was born two months prematurely.  As a result, she suffered sleep apnea, severe
acid reflux, and respiratory distress.  She was placed in the neonatal intensive-care unit of the
hospital.  While S.J. was hospitalized, appellant visited sporadically and rarely called to check on
her.  S.J. was released from the hospital approximately three months after birth.  She required an
oxygen tank and apnea monitor for respiratory distress and was prescribed two medications for acid
reflux.  After S.J.'s release, appellant did not give S.J. the medication.  Without the medication, S.J.
could have asphyxiated on undigested milk.  Further, appellant did not take initiative to schedule S.
J.'s follow-up doctor's appointments.  Appellant also left S.J. at home alone with a ten-year-old aunt
who did not have the proper knowledge to care for a “medically fragile child."  Approximately three
weeks after S.J.'s release from the hospital, the Department took possession based on “medical
neglect."[6]

At trial, appellant did not controvert the evidence showing she neglected S.J.'s medical needs.[7]  On
appeal, appellant advances little argument to challenge the endangerment finding.  She merely
challenges the allegation she left S.J. alone with a ten-year-old and states there was no medical
evidence appellant's actions harmed S.J.

However, while “endanger" means "more than a threat of metaphysical injury or the possible ill
effects of a less than ideal family environment," the endangering conduct need not be directed at or
cause actual injury to the child.  Boyd, 727 S.W.2d at 533; see In re J.I.T.P., 99 S.W.3d at 844.  
Further, endangerment can be exhibited through actions and omissions.  In re J.I.T.P., 99 S.W.3d at
844.  Neglect of a child's physical needs “can be just as dangerous to the well-being of a child as
direct physical abuse."  In re M.C., 917 S.W.2d 268, 270 (Tex. 1996).

Appellant's failure to give S.J. medication prescribed for serious medical conditions-  to prevent her
from asphyxiating on milk - established that appellant exposed S.J. to physical harm.  Accordingly,
we conclude the trial court could have reasonably formed a firm belief or conviction appellant
engaged in conduct that endangered S.J.'s physical well-being.

B.        Best Interest of the Child

Appellant also contends the evidence is factually insufficient to support the trial court's finding that
termination is in S.J.'s best interest.  There is a strong presumption that preserving the parent-child
relationship is in the best interest of a child.  See In re J.I.T.P., 99 S.W.3d at 846 (citing Tex. Fam.
Code Ann.  §§ 153.131(b), 153.191, 153.252 (Vernon 2008)).  The Department bears the burden to
rebut this presumption.  Id. (citing Hall v. Harris County Child Welfare Unit, 533 S.W.2d 121, 122- 23
(Tex. Civ. App.- Houston [14th Dist.] 1976, no writ)).

The Texas Supreme Court has compiled non-exclusive factors to consider when determining the
best interest of a child including (1) the child's desires, (2) the child's emotional and physical needs
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 proper,
and (9) any excuse for the acts or omissions of the parent.  Holley v. Adams, 544 S.W.2d 367, 371-
72 (Tex. 1976); see In re J.I.T.P., 99 S.W.3d at 846.  In this case, the record contains evidence
pertinent to all factors except the first because S.J. was too young to express her desires.  We will
discuss together the evidence pertaining to these factors, rather than divide our discussion
according to each factor, because the evidence is overlapping relative to the various factors.

We have discussed the evidence showing appellant previously neglected S.J.'s medical needs.   
When deciding termination is in S.J.'s future best-interest, the trial court could have reasonably
considered that appellant neglected her newborn during such a critical time.  See In the Interest of C.
H., 89 S.W.3d 17, 28 (Tex. 2002) (recognizing evidence establishing statutory ground for termination
may also be probative of best-interest issue); In re B.K.D., 131 S.W.3d 10, 17 (Tex. App.- Fort Worth
2003, pet. denied) (recognizing fact finder may infer that past conduct endangering child's well being
may recur in the future if child is returned to parent).

On appeal, appellant seems to acknowledge her previous neglect of S.J.'s medical needs but
contends the evidence is nonetheless factually insufficient to support the best-interest finding.  
Appellant emphasizes (1) at the time of trial, S.J. was one year old, as opposed to a newborn, the
child no longer had special needs, and there was no evidence of any future special needs; (2)
appellant was only seventeen years old when S.J. was born and was living in an unfamiliar city
(Houston) after being displaced from New Orleans due to Hurricane Katrina; and (3) there was no
evidence appellant has substance-abuse issues, a history with the Department, or a criminal record.
[8]  Appellant also asserts the Department offered little evidence regarding its proposed plans for S.
J., whereas appellant requested a home study for her aunt, who lives in Louisiana, and appellant's
mother, Bridgetta McCarthy, testified she wishes to raise the child.

Citing all these factors, appellant contends she “would do much better" in the future, with support from
family members, despite her behavior when the child had special needs.  Appellant argues it would
be more beneficial for S.J. to be raised by appellant with assistance from relatives than be adopted
by a non-relative or face a “constant shuffle" between foster homes in the event of termination.

However, a child as young as S.J. obviously has regular needs requiring constant attention.  
Because appellant failed to appear at trial, she did not offer her age and post-Katrina difficulties as
purportedly sufficient excuses for the past neglect or assure the court she will be more attentive to S.
J.'s future needs.  Appellant merely suggests the trial court should have inferred that she will change
her behavior.  Nonetheless, the trial court could have decided that appellant's age and post-Katrina
difficulties were insufficient excuses for neglecting her newborn and questioned whether appellant,
who was only a year older at the time of trial, would repeat her behavior if a similar difficulty arose.[9]  
In fact, appellant's failure to appear at trial itself belies her claim that she intends to be more attentive
to S.J.

Moreover, the following uncontroverted evidence demonstrates appellant has consistently neglected,
and exhibited almost a complete lack of interest in, S.J. and supports the trial court's implicit finding
that appellant is not able or willing to properly care for S.J. in the future:

*                   McCarthy, appellant's mother, testified that, at the beginning, appellant indicated she did
not want to keep the baby;

*                  McCarthy actually opined that appellant's parental rights should be terminated so S.J.
could obtain a better home, preferably with McCarthy; because McCarthy's testimony was presented
to counter the Department's request for termination, she likely did not understand the ramifications of
termination, but she believed, at least, that appellant should not raise S.J.;

*                   for about three months after the Department took possession of S.J., appellant lived in
Houston before leaving for Louisiana; even when she resided in the same city as S.J., appellant did
not visit the child, pay support, or make any gifts to S.J., although Yeboah was unaware of any order
prohibiting such contact; see Dupree v. Texas Dept. of Protective and Regulatory Servs., 907 S.W.
2d 81, 87 (Tex. App.- Dallas 1995, no writ) (considering, relative to best-interest finding in
termination proceeding, father's
failure to visit child for six months after release from prison could
indicate lack of interest);

*                  appellant left Houston to live in Louisiana during the same month S.J. was declared a
“well child" by her doctors; although appellant was originally from Louisiana, she offered no
explanation for why she did not remain in Houston to maintain some relationship with her baby;

*                  even after appellant moved to Louisiana, she failed to visit or send money or gifts, and
her limited involvement with the child consisted of maintaining phone contact with Yeboah;

*                  appellant failed to complete any of the tasks outlined in the family service plan and the
trial court's temporary order, although the tasks were clearly designed to help appellant successfully
parent S.J. and the order reflected that completion of the tasks was required to obtain return of the
child; see In re M.R., 243 S.W.3d 807, 821 (Tex. App.- Fort Worth 2007, no pet.) (recognizing
parent's failure to comply with family service plan may be factor supporting best-interest finding);[10]

*                   when appellant called Yeboah after moving to Louisiana to inquire about completing the
family service plan, Yeboah presented two options: (1) return to Houston to obtain the services from
the Department; or (2) complete the services in Louisiana if appellant paid for them herself; although
appellant told Yeboah she could not come to Houston or afford the services, at trial, appellant offered
no reason she could not return to Houston to obtain the services;

*                   appellant had never shown Yeboah proof of stable employment, housing, and
environment and offered no plans on “what she would do" if S.J. were returned to her; when Yeboah
spoke with appellant within a week before trial, appellant said that she did not have a job or a place
to live and was thus staying with an aunt; see id. (recognizing parent's inability to maintain stable
home may be factor supporting a best-interest finding);[11] and

*                  although existence of substance-abuse issues, a Department history, or criminal record
might be pertinent in a termination proceeding, the lack of these problems in appellant's case did not
negate the evidence demonstrating she neglected and showed little interest in S.J.[12]

In addition, the trial court could have reasonably formed a firm belief or conviction that termination of
appellant's parental rights is in S.J.'s best interest despite appellant's claim that relatives would
support her in raising S.J., which is preferable to adoption by non-relatives or placement in foster
homes.  We initially note Yeboah testified the Department would consider a family member for
permanent placement.  A home study was in progress relative to appellant's aunt, who remained a
possibility for permanent placement, although, as we have mentioned, the Department had
eliminated McCarthy (appellant's mother) as a permanent placement.  Yeobah also testified S.J.'s
current foster parents wish to adopt her.  At the time of trial, S.J. had resided for about five months in
this foster home which provided a safe, structured, and nurturing environment where S.J.'s social,
emotional, and physical needs were met.  Yeboah visited S.J. in this home within a week before trial
and reported she was “doing very well."  Thus, there were options for a permanent home including a
relative or the foster home in which S.J. was thriving.  Even though the Department had not yet
decided on an option, appellant's proposal that relatives could help her raise the child does not
render the evidence factually insufficient to support the best-interest finding.

Appellant's contentions regarding the contemplated role of her relatives are somewhat inconsistent.  
On appeal, appellant primarily suggests she would raise S.J. jointly with relatives and focuses on her
own mother; appellant asserts S.J. would “most likely" be raised in a household with appellant and
McCarthy.  However, appellant presented no evidence that a joint arrangement with McCarthy or any
other relative was viable.  To the contrary, at the time of trial, appellant lived in Louisiana, and
McCarthy had moved to Austin.  Further, as we have mentioned, appellant previously returned to
Louisiana while S.J. was living in Houston with McCarthy, thus negating that appellant was interested
in such an arrangement Although appellant provided the Department with information to conduct a
home study on the referenced aunt, there was no evidence yet that the aunt was willing to help care
for S.J. Additionally, as we have discussed, appellant has implicitly and explicitly indicated she does
not even want the child; thus, mere availability of support from relatives does not solve the issue of S.
J.'s potentially being neglected by appellant.

At other points on appeal, appellant suggests S.J. be permanently placed with McCarthy in lieu of
termination.  In fact, the gist of McCarthy's testimony was that she wished to raise S.J. Herself - not
jointly with appellant.  As we have mentioned, McCarthy actually opined appellant's parental rights
should be terminated.  However, McCarthy had not filed a petition requesting to be named managing
conservator in the event of termination.  Instead, because her testimony was presented to counter the
Department's request for termination, she was apparently expressing her wish to raise S.J. in lieu of
termination.

We acknowledge McCarthy expressed devotion to S.J. because she, not appellant, appeared at trial
and testified she had cared for the child “since day one" and was protective of her.  McCarthy
indicated she generally maintains a stable lifestyle; she is employed as a medical assistant, has a
five-bedroom house, and five of her own children live with her.   

However, at trial, the Department articulated the reason it previously removed S.J. from McCarthy's
temporary care and no longer considered her a suitable permanent placement. According to the
Department's evidence, McCarthy left S.J. alone with McCarthy's eighteen-year-old daughter
(appellant's sister) while McCarthy went to Austin for a job interview.  The sister took S.J. to
Louisiana, and appellant called Child Protective Services in New Orleans.  Appellant reported that
her sister brought S.J. to Louisiana because McCarthy had not given the sister money to feed the
child.  The Department retrieved S.J., and she was placed in the foster home.

In contrast, McCarthy denied leaving S.J. in the temporary care of her eighteen-year-old daughter.  
Rather, McCarthy claimed that she went with her own sister and eighteen-year-old daughter to New
Orleans.  While there, McCarthy received a call requesting that she take a drug test in Austin related
to a job application.  She left S.J. with her sister who is thirty five years old.  McCarthy was away from
S.J. for only a day.

We find no reason to intrude on the trial court's implicit decision to believe the Department's account
of this incident. See In re C.L.C., 119 S.W.3d 382, 391 (Tex. App.- Tyler 2003, no pet.) (recognizing
factual-sufficiency standard applicable in termination proceeding retains deference for fact finder's
role as exclusive judge of the credibility of witnesses and weight to be given their testimony).  
Therefore, the trial court could have rationally questioned whether McCarthy was a suitable care giver
based on her failure to provide money for S.J.'s food while McCarthy was away.

Moreover, although McCarthy generally explained her living arrangements, she did not provide any
details on how she would care for such a young child while she was working.  Considering this
omission in her testimony and the above-cited incident, the trial court could have been concerned
that, when McCarthy needed to be away from S.J., the child might be shuffled back and forth
between Texas and Louisiana rather than remain in a permanent, stable home.  See Dupree, 907 S.
W.2d at 87 (recognizing, relative to best interest of child, need for permanence is paramount
consideration for child's present and future physical and emotional needs and goal of establishing
stable, permanent home for child is compelling interest of the government).[13]  Consequently, the
trial court could have found the Department articulated a sufficient reason for refusing permanent
placement with McCarthy in lieu of termination and her desire to raise the child did not outweigh the
ample evidence showing termination of appellant's parental rights is in S.J.'s best interest.  
Accordingly, we conclude the evidence is factually sufficient to support the best-interest finding.

We overrule appellant's sole issue and affirm the trial court's decree.

/s/        Charles W. Seymore

Justice

Panel consists of Justices Yates, Seymore, and Boyce.

--------------------------------------------------------------------------------

[1]  The proceeding below also pertained to the alleged father, to whom appellant was not married.  At the
termination trial, evidence was presented on his identity, there was evidence he has had no  involvement with
S.J., and his parental rights were also terminated. Because only appellant challenges termination, we set forth
the background and evidence solely as it pertains to appellant.

[2]  A Department caseworker testified, and McCarthy indicated, S.J. was removed from McCarthy's care in
March 2007; however, a report admitted at trial and other filings indicated this action occurred in May 2007.  
Regardless, S.J. was removed sometime in Spring of 2007.

[3]  The trial court also found that appellant committed the statutory grounds for termination set forth in
sections 161.001(1)(B), (C), and (N).  See Tex. Fam. Code Ann.  §§ 161.001(1)(B), (C), (N).

[4]  The other exhibits admitted at trial concerned the Department's service of citation on appellant and the
alleged father and attempts to determine paternity.

[5]  On appeal, appellant consistently refers to an affidavit of a Department representative which was attached
to the Department's initial petition and set forth facts to support the requested relief.  However, this affidavit is
contained only in the clerk's record and was not admitted at trial.  Therefore, we will limit our review to the
evidence admitted at trial.

[6]  In fact, appellant also neglected her own medical well-being because, against the advice of medical
personnel, she left the hospital one day after giving birth to S.J. by C-section.  

[7]  The testimony of appellant's mother concerned subjects arguably relevant to the “best interest"
determination but did not contradict the evidence that appellant neglected S.J.'s medical needs.  

[8]  Appellant also claims she did not have transportation to the hospital, but, in support, she cites the
Department's affidavit that was not admitted at trial.

[9]  Appellant cites the affidavit that was not admitted at trial to support her assertion that she was residing
temporarily in Houston after being displaced because of Katrina.  However, the Department does not seem to
dispute that appellant is from Louisiana.  Nevertheless, appellant did not offer to the trial court her post-
Katrina displacement as an excuse for neglecting S.J.

[10]  In summary, the plan and temporary order required appellant to participate in a psychological
examination and counseling, complete parenting classes, participate in drug assessment and remain drug
free, maintain stable housing, maintain stable employment, take classes to obtain a GED, visit S.J. weekly,
and attend all mandatory court hearings and “PPT's."

[11]  Appellant complains Yeboah did not explain how she knew appellant failed to complete her services and
lacked stable employment and housing. However, this contention would have more appropriately been raised
as a hearsay objection at trial, which appellant did not make, or by cross-examining Yeboah on the accuracy
of this information, which appellant did not do.  At trial, Yeboah's testimony on these subjects was not
controverted or otherwise challenged and thus factors into our review.

[12]  The Department presented evidence that appellant has another child, older than S.J., who also did not
live with appellant.  Because the Department presented no evidence showing why this other child did not live
with appellant, we have not considered this fact in our evaluation.

[13]  The dispute on whether McCarthy left S.J. alone with an eighteen year old seems immaterial absent
information regarding the capabilities of the particular eighteen year old.  It is McCarthy's failure to leave
money for food and the fact S.J. was taken to Louisiana which could have concerned the trial court.