Quiroz v. DFPS (Tex.App.- Houston [1st Dist.] Apr. 9, 2009)(Alcala)(involuntary termination of
parental rights)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justice Alcala
01-08-00548-CV Alejandra Quiroz v. Department of Family and Protective Services
Appeal from 314th District Court of Harris County
Trial Court Judge: Hon. John Phillips
MEMORANDUM OPINION
Appellant, Alejandra Quiroz, brings this accelerated appeal to challenge a judgment that involuntarily
terminated her parental rights to her daughter S.M., and awarded managing conservatorship of S.M. to
appellee, the Department of Family and Protective Services (DFPS). In three issues on appeal,
appellant contends the evidence is legally and factually insufficient to support (1) termination of
parental rights for constructive abandonment, (2) the finding that termination of parental rights was in
the child's best interest, and (3) the appointment of DFPS as the sole managing conservator of the
child. We conclude the evidence is legally and factually sufficient to support the termination of parental
rights and that termination is in the child's best interest. Therefore, we do not reach the award of
conservatorship to DFPS. We affirm.Background S.M. suffers from numerous health conditions,
including respiratory disease, chronic lung disease, cerebral palsy, muscle spasticity, vocal cord
paralysis, convulsions, seizures, gastro-electro-reflux disease, speech disorders, and mixed
incontinence. S.M.'s health conditions require special machinery and a feeding tube. At the time of trial,
S.M., who was born September 29, 2005, was two years old, functioned as a one-year-old, and
required a wheel chair.
A. The Places Where S.M. Has Lived
On October 19, 2006, several reports were made to DFPS regarding Quiroz's care of S.M. At that time,
S.M. had been admitted to Memorial Hermann Hospital because Quiroz could not afford to have the
electricity turned on at her trailer and S.M. required electricity for her feeding pump and oxygen.
Subsequently, DFPS opened a case for Family Based Safety Services. As part of the Family Based
Safety Services, DFPS provided Quiroz with a home-based therapist and daycare for Quiroz's two older
children, a four-year-old and a three-year-old.
Three months after the initial referral, DFPS received another referral on January 15, 2007 when S.M.
was readmitted to Memorial Hermann with a 106-degree fever. The doctors stated that when S.M.
arrived at Memorial Hermann, she was dehydrated and lacking oxygen because Quiroz delayed getting
prompt medical attention for S.M. S.M.'s brain was damaged as a result of the lack of oxygen and she
had to be placed on a ventilator. The doctors at Memorial Hermann, who were concerned about
Quiroz's ability to properly care for S.M. if S.M. was returned to Quiroz because Quiroz had missed
multiple medical appointments, admitted S.M. into Memorial Hospital for four months, from January 15
to May 3, 2007.
Following the discharge from Memorial Hospital, S.M. was admitted into Health Bridge Hospital, a
special needs hospital for children, from May 3, 2007 to August 9, 2007. Officials at Health Bridge also
had concern that it would be medically unsafe for S.M. to return home due to the lack of follow-up care
and living conditions. Health Bridge personnel noted that Quiroz had previously failed to bring S.M. to
important doctor appointments at Health Bridge and that S.M. had repeatedly been returned to both
Memorial Hermann and Health Bridge for the same symptoms that may have been avoided with proper
medical follow-up. Health Bridge also noted that it had difficulty contacting Quiroz.
S.M. was released from Health Bridge to reside in a therapeutic foster home, where she lived for about
nine months from August 9, 2007 to the time of trial on May 1, 2008, except for a two-week period of
hospitalization from August 13 to 28, 2007. According to DFPS, the therapeutic foster home met all of
S.M.'s needs. The foster home was run by a single mother who was a nurse at Health Bridge. S.M's
foster mother arranged for other nurses to take care of S.M. while she was at work since S.M. required
full-time nursing care.
B. The Court Intervention for the Care of S.M.
DFPS filed an original petition in May 2007 seeking emergency relief for it to be temporary sole
managing conservator of S.M. At the conclusion of the emergency hearing, the court granted the
petition. Later that month, the trial court held an adversarial hearing, where Quiroz was present with
counsel. The trial court ordered Quiroz to participate in a psychiatric evaluation and to continue
participating in home-based therapy.
In June 2007, DFPS prepared a service plan in writing that was agreed to by Quiroz. The plan required
Quiroz to continue to participate in home-based therapy with home enrichment, participate in
counseling, psychiatric evaluations, contact and utilize available community resources, keep all
appointments with the therapist and the DFPS worker, and follow all recommendations and services
offered by DFPS. Later that month, at a status hearing attended by Quiroz, her attorney, and a
translator, the court ordered Quiroz to abide by the service plan. The court also ordered Quiroz to
complete a psychological examination, to maintain stable housing and employment, and to provide
DFPS with her address and phone numbers.
Four months later, when Quiroz failed to appear at a permanency hearing, the trial court ordered that
she was "not to have access to [S.M.] until she comes to court." That October 30, 2007 order was lifted
four months later on February 26, 2008, when Quiroz presented herself at another permanency
hearing. The court also ordered that all previous orders issued by the court continue without
modification.
Around April 2009, DFPS filed a First Amended Petition for Protection of a Child and a Permanency
Plan and Permanency Progress Report. The section of the report concerning Quiroz's compliance with
temporary orders and the service plan stated that Quiroz "has not completed any services at this time."
C. The Evidence Introduced at Trial
At the bench trial on May 1, 2008, DFPS sought to terminate Quiroz's parental rights to S.M. for
constructive abandonment and failure to comply with the court's order specifying the actions she had to
take for DFPS to return S.M. to her. See Tex. Fam. Code Ann. § 161.001(1)(N), (O) (Vernon 2002).
The trial consisted of evidence from two witnesses, DFPS caseworker Sarah Panetski and Quiroz.
Panetski's testimony described DFPS's plan that was designed to correct the conditions of medical
neglect that had brought S.M. into care. DFPS invited Quiroz to attend medical appointments and do
other things that were necessary for her to learn how to properly care for S.M. Panetski said that, in her
opinion, the plan was reasonable, but Quiroz did not participate in any of the services.
Panetski told the court that Quiroz had not visited S.M., nor maintained significant contact with S,M. in
the year since S.M. was taken into care. Panetski testified that Quiroz made no attempt to visit S.M. for
a five to six month period between May 2007 to October 30, 2007, when the trial court allowed Quiroz
to visit S.M. Quiroz also did not have contact with S.M. during the four month period of time from
October 30, 2007 to February 26, 2008, when the trial court have a no-contact order in place. The trial
court issued the no-contact order because Quiroz failed to appear in court and DFPS was unable to
find Quiroz and her two other children in her care, who were subsequently taken into DFPS care.
Although the no-contact order was in place for four months, it would have been lifted earlier than that
had Quiroz simply presented herself to the court. Moreover, Quiroz did not try, either through her
attorney or through Panetski directly, to get in contact with the court to say she wanted to visit S.M.,
even though Quiroz told Panetski that Quiroz was in constant contact with Quiroz's attorney. When the
trial court lifted the no-contact order in February 2008, the trial court gave Quiroz the right to see S.M.
during doctor appointments, but Quiroz did not show up for a doctor's appointment.
Panetski testified that Quiroz was unable to provide a safe environment and that she believed it was
dangerous to return S.M. to Quiroz because she did not have the medical training needed to care for
S.M. Panetski noted that even with DFPS help through Family Based Services, Quiroz had not been
able to provide S.M. with a safe environment. Specifically, Quiroz was invited to attend medical
appointments and do other things necessary to learn how to care for S.M., but she did not participate in
those opportunities. Additionally, S.M. came into DFPS care because Quiroz was not taking adequate
care of her even with Family Based Services providing nurses in Quiroz's home for up to one hundred
hours a week.
Panetski told the court that DFPS was familiar with Quiroz's first residence. This residence was found
not suitable for S.M. and was the reason for S.M.'s removal. Panetski was never able to locate Quiroz
to conduct a second home study after S.M. was taken into care because she was not given a valid
telephone number or address for Quiroz. Panetski testified she believed S.M. to be adoptable and that
the current foster caregiver was considering adopting S.M. The only other witness to testify was Quiroz.
Quiroz testified that she did not want her rights to S.M. terminated. In describing the events leading to
S.M.'s hospital admission in May 2007, Quiroz stated she had been caring for S.M. without a nurse on a
Sunday when S.M. came down with a fever. When she took S.M. to the hospital she was told by a
doctor that she had not brought her to the hospital quickly enough. Quiroz testified inconsistently
concerning whether she visited S.M. in the hospital. At one point Quiroz said that, after DFPS took
custody of S.M., she attempted to see S.M. at the hospital without success. However, at another point
Quiroz testified that she had seen S.M. at the hospital but could not remember on how many occasions.
Quiroz stated she asked the caseworker if she could see S.M. Quiroz had gone to a medical
appointment for S.M. that the caseworker had told her about, but S.M. was never brought to the
doctor's office.
With regard to her two other children in DFPS care, Quiroz testified that she placed these children with
a sister-in-law when she lost her job in August 2007 because she had no other place to leave them.
Quiroz testified that she subsequently obtained other employment and secured housing. However,
when she tried to pick up her children in January 2008, Quiroz learned that DFPS had taken them into
custody. Quiroz stated that DFPS informed her she would not be able to visit or speak with her children
until she spoke with the caseworker.
Quiroz testified that she was living in the same place as she did when S.M. was taken into custody, and
that no one from DFPS had been to her residence in the last 11 months to check on her living
arrangements. However, Quiroz also testified that she was living with the father of her unborn child for
the last three months, and that she did not know the address of this residence. Quiroz claimed she did
not receive any paperwork from DFPS until two months before trial. Quiroz stated she had not done
any of the services on the service plan because she did not know what to do until the new DFPS
caseworker told her.
Quiroz claimed she did have the knowledge to care for S.M. because she took classes at the hospital.
Quiroz stated she had participated in ongoing training to care for S.M. since S.M.'s birth, but had not
taken any training since DFPS had taken S.M. Quiroz told the court that she knew how to run all the
machines necessary to care for S.M. Finally, Quiroz testified that she could care for S.M. if S.M. were
returned to her.
At the conclusion of the bench trial, the trial court ordered Quiroz's parental rights to S.M. terminated
for constructive abandonment, found that termination was in S.M.'s best interest, and awarded sole
managing conservatorship to DFPS. See Tex. Fam. Code Ann. §161.001(1)(N), (2). The court declined
to grant termination under Texas Family Code section 161.001(1)(O). The trial court also made an
independent finding that awarding conservatorship to DFPS was in the best interest of S.M.
Quiroz timely filed a motion for new trial, a statement of appellate points, and a notice of appeal. Among
the issues Quiroz identified in her statement of points were legal and factual sufficiency challenges to
the predicate and best-interest findings supporting termination. The trial court denied Quiroz's motion
for new trial and found Quiroz's appeal not to be frivolous. See Tex. Fam. Code Ann. § 263.405(d)
(Vernon Supp. 2008).
Sufficiency of Evidence
Appellant contends the evidence is legally and factually insufficient to terminate her parental rights to
S.M.
A. Standards of Review
The burden of proof at trial in a termination-of-parental-rights case is by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001; In the interest of J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).
"'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 2002); In re J.F.C., 96 S.W.3d at 264. This heightened
burden of proof results in a heightened standard of review. In re S.M.L., 171 S.W.3d 472, 476 (Tex.
App.--Houston [14th Dist.] 2005, no pet.).
When determining legal sufficiency, we review all the evidence in the light most favorable to the finding
"to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its
finding was true." In re J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder's
conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could
have disbelieved or found to have been incredible. Id. This does not mean that we must disregard all
evidence that does not support the finding. Id. Disregarding undisputed facts that do not support the
finding could skew the analysis of whether there is clear and convincing evidence. Id. Therefore, in
conducting a legal-sufficiency review in a termination-of-parental-rights case, we must consider all of
the evidence, not only that which favors the verdict. See City of Keller v. Wilson, 168 S.W.3d 802, 817
(Tex. 2005). In determining a factual-sufficiency challenge, the higher burden of proof in termination
cases also alters the appellate standard of review. In re C.H., 89 S.W.3d 17, 26 (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. at 22. In considering whether evidence rises to
the level of being clear and convincing, we must consider whether the evidence is sufficiently
reasonable to form in the mind of the factfinder a firm belief or conviction as to the truth of the
allegation sought to be established. Id. at 23. We consider whether disputed evidence is such that a
reasonable factfinder could not have resolved that disputed evidence in favor of its finding. In re J.F.C.,
96 S.W.3d at 266. "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.
B. Constructive Abandonment
A court may base a termination of parental rights upon findings that the parent engaged in constructive
abandonment of the child and that termination is in the best interest of the child. See Tex. Fam. Code
Ann. § 161.001; In re L.M., 104 S.W.3d 642, 647 (Tex. App.--Houston [1st Dist.] 2003, no pet.). In order
to prove constructive abandonment, DFPS must prove that (1) it had a permanent or temporary
managing conservatorship of the child for at least six months; (2) it made reasonable efforts to return
the child to the parent; (3) the parent did not regularly visit or maintain significant contact with the child;
and (4) the parent demonstrated an inability to provide the child with a safe environment. See Tex.
Fam. Code Ann. § 161.001(N). If no evidence exists for one or more of the above-mentioned elements,
then the finding of constructive abandonment fails. In re D.T., 34 S.W.3d 625, 633 (Tex. App.--Fort
Worth 2000, pet. denied); see also In re H.R., 87 S.W.3d 691, 699 (Tex. App.--San Antonio 2002, no
pet.).
Quiroz challenges only two of the four requirements for proving constructive abandonment. It is
undisputed that DFPS had been the temporary managing conservator of S.M. for well over six months
and that DFPS made reasonable efforts to return S.M. to Quiroz. Quiroz challenges only the
determinations that she did not regularly visit or maintain significant contact with S.M., and that she
demonstrated an inability to provide S.M. with a safe environment. See Tex. Fam. Code Ann. § 161.001.
1. Regular Visits or Maintaining Significant Contact with S.M.
Quiroz contends that the evidence is legally and factually insufficient to show that she did not maintain
regular or significant contact with S.M. Specifically, Quiroz asserts that her failure to visit S.M. was
beyond her control because she had no capability to visit S.M. from May 2007 through February 2008.
In support of this, Quiroz explains, (1) S.M. was hospitalized from May to August of 2007 and Quiroz
thought she could not visit S.M. in the hospital, and (2) from October 2007 until February 2008, there
was a court order in place that prohibited Quiroz from having any contact with S.M.
At the outset, we note that Quiroz only claims an inability to see S.M. from May to August 2007 and
October 2007 to February 2008. Quiroz provides no excuse or explanation for failing to see S.M. for
the three months of September 2007, March 2008, and April 2008.
The evidence fails to show that Quiroz could not have visited S.M. while she was in the hospital for the
four months of May through August 2007. No evidence in the record supports the suggestion that
Quiroz was prohibited from visiting S.M. during S.M.'s stay at the hospital. Panetski's testimony that she
had no knowledge as to whether Quiroz was allowed to visit S.M. in the hospital is not evidence that
Quiroz was prohibited from visiting S.M.; it is only evidence of Panetski's lack of knowledge as to
whether Quiroz was allowed to visit S.M. at that time. Moreover, Quiroz testified that she visited S.M. in
the hospital, but could not remember how many times. This testimony belies Quiroz's contention that
she did not believe she had the right to visit S.M. and that she was prohibited from visiting S.M.
However, Quiroz later contradicted her own testimony when she stated she had not seen S.M. Finally,
Panetski testified that neither Quiroz nor her attorney contacted her indicating that Quiroz wanted to
visit S.M. until January or February of 2008, which was approximately eight or nine months after S.M.
was in the care of DFPS.
The evidence does not support Quiroz's contention that her failure to visit S.M. for the approximately
four month from October 2007 to February 2008 was due to the court's order prohibiting the contact.
Panetski testified that from October 30, 2007 until February 2008, a court order was in place
prohibiting Quiroz from visiting S.M. The court ordered no contact between Quiroz and S.M. until such
time as Quiroz's other two children were brought into DFPS custody because DFPS had been unable to
locate the children and was concerned for their safety. Specifically, the court conditioned Quiroz's
access to S.M. "until [Quiroz] comes to court." This condition does not support Quiroz's contention that
she could not see S.M. based on factors beyond her control, because, by the very nature of the order,
Quiroz only had to come to court in order to have the order lifted. Additionally, Panetski testified that
when Quiroz contacted her in January or February about visitation, Panetski advised her that she
needed to present herself to the court, resulting in the court lifting the order to allow Quiroz to visit S.M.
at doctor appointments. Although the court expressly allowed Quiroz to visit S.M. during the doctors'
appointments, Quiroz did not attend appointments because Panetski had no valid contact information
for Quiroz. Panetski testified that when she was finally able to contact Quiroz, Quiroz did not ask about
visiting S.M.
The factfinder was free to disbelieve Quiroz's testimony given the inconsistencies concerning whether
she visited S.M. in the hospital. The factfinder could reasonably believe Panetski's testimony that in the
year since S.M. was taken into DFPS's care, Quiroz had not visited S.M. nor had she attempted to
maintain significant contact with her. Viewing the evidence in the light most favorable to the verdict, we
hold that the fact finder reasonably could have formed a belief that Quiroz did not regularly visit or
maintain contact with S.M. See in re B.S.T., 977 S.W.2d 481, 486 (Tex. App.--Houston [14th Dist.]
1998, no pet.) (holding evidence sufficient to support termination of parental rights on basis of
constructive abandonment where parent was advised of his right to visit, visited twice, but made no
further visitation efforts). In so holding, we distinguish In the interest of D.T., 34 S.W.3d 625, 633 (Tex.
App.--Fort Worth 2000, pet. denied), upon which Quiroz relies. In D.T., the termination of an
incarcerated parent's rights for constructive abandonment was reversed because it was DFPS's own
policy that denied the parent visitation with the child. In re D.T., S.W.3d at 629. In the instant case, the
record reveals no such policy on the part of DFPS denying Quiroz access to her child. On the contrary,
Quiroz merely had to come to court in order to have the temporary order denying her access to S.M.
lifted. The record reveals that when Quiroz did that, she was allowed to visit S.M. Moreover, although
the court's order denied contact for the five months of October 2007 to February 2008, the court
allowed Quiroz to have contact for the seven months from May to September 2007 and March to April
2008, and Quiroz did not maintain contact with S.M. during that time either.
Quiroz also asserts that the evidence is factually insufficient to show that she did not maintain regular
or significant contact with S.M. Based on the foregoing reasons, we likewise hold the evidence is
factually sufficient for an order of termination of parental rights. In re B.S.T., 977 S.W.2d at 486.
Considering all of the evidence in the record concerning Quiroz's contact with S.M., the fact finder
reasonably could have formed a firm conviction or belief that Quiroz lacked regular visitation or
significant contact with S.M. In re J.F.C., 96 S.W.3d at 264.
2. Inability to Provide a Safe Environment
DFPS was required to prove that Quiroz demonstrated an inability to provide a safe environment for
S.M. Quiroz contends that DFPS failed to offer any evidence regarding the state of Quiroz's residence
and its adequacy for S.M.'s needs. In support of this, Quiroz notes that Panetski testified that no home
study had ever been conducted on Quiroz's residence and that DFPS did not present a medical
professional to testify regarding the circumstances surrounding S.M.'s admission to the hospital in May
2007, S.M.'s needs since the hospitalization, S.M.'s current condition, or S.M.'s current and future
needs.
When viewing the evidence in a light most favorable to the verdict, the fact finder could reasonably find
that Quiroz was unable to provide S.M. with a safe environment. Quiroz acknowledged her living
situation was unstable during the year S.M. was in her care. For instance, when asked whether she was
living in the same residence where S.M. was initially taken into DFPS care, she claimed that she was.
However, Quiroz contradicted this testimony when she testified that she had recently moved into a
man's residence. Assuming Quiroz was still in the same residence where S.M. was first taken into DFPS
care, Panetski testified that DFPS was very familiar with the residence because Quiroz was receiving
family-based therapy there and that the residence was not suitable. Even if Quiroz had moved from the
house where S.M. had lived with her, the evidence supports the implied determination that Quiroz could
not provide a safe environment for S.M. Quiroz's testimony at trial revealed that she did not know her
own address and that she had to place her two other children with an aunt when she "didn't have
anywhere to leave them." Moreover, Panetski testified that she never received a valid address for
Quiroz and that she had to search to find her.
Although she did not have stable housing, Quiroz claimed she was capable of caring for S.M. and
Quiroz testified she had knowledge of how to care for S.M.'s medical conditions. Quiroz testified that
she knew how to take care of S.M. because she received classes on how to run the machines at the
hospital. Quiroz also stated that she had electricity in her home and had a job. Quiroz did admit,
however, that she did not do anything outlined in her service plan to get S.M. back "until now."
In contrast to Quiroz's claim that she could care for S.M., Panetski testified that S.M. came into care
because Quiroz delayed seeking prompt medical attention for S.M., and S.M. was dehydrated and
lacking oxygen. Moreover, the Permanency Progress Report introduced into evidence by DFPS reveals
that the doctors at Memorial Hermann Hospital were concerned about Quiroz's ability to properly care
for S.M. and that Quiroz repeatedly missed medical appointments. The Permanency Report also
indicated that officials at Health Bridge Hospital felt that it would be medically unsafe for S.M. to return
home after her initial hospitalization due to the lack of follow-up care and living conditions. Finally,
Panetski testified that, during the time Quiroz was receiving Family Based Safety Services through
DFPS, S.M. had to be hospitalized for dehydration and severe malnutrition. Panetski concluded that
Quiroz was not able to provide a safe environment for S.M. in the past and, in her opinion, would not be
able to in the future. Panetski also testified that Quiroz had not made any progress in learning how to
care for S.M. Additionally, the service plan also reflected a concern that Quiroz was unable to provide a
safe environment for S.M. because she could not adequately address S.M.'s medical needs. Panetski
testified that this plan was designed to correct the conditions of medical neglect that brought S.M. into
care. Panetski explained that Quiroz did not participate in the plan, failed to go to S.M.'s medical
appointments, and failed to learn how to properly care for S.M.
Based on the entirety of the testimony, the trier of fact could have reached a firm belief or conviction
that Quiroz lacked the ability and resources to provide a safe environment for S.M. during the year S.M.
was in DFPS care. While Quiroz testified at trial that she was capable of caring for S.M., a reasonable
trier of fact was entitled to disbelieve that testimony in light of the evidence that indicated she had been
medically neglectful before, demonstrated a lack of resources and an inability to maintain a safe
environment while S.M. was in care, and received no medical training since S.M. was taken into care.
Thus, combining all of the evidence in the record, we hold that the fact finder could have formed a firm
belief or conviction that Quiroz was unable to provide a safe environment for S.M. We hold that the
evidence of Quiroz's inability to provide S.M. a safe environment is legally and factually sufficient for the
finding of termination of parental rights. In re J.F.C., 96 S.W.3d at 264.C. Best Interest of the Child
In order to show that Quiroz's parental rights should be terminated, DFPS was also required to prove
by clear and convincing evidence that termination was in the best interest of S.M. See Tex. Fam. Code
Ann. § 161.001(2). Quiroz asserts that DFPS failed to present competent evidence to support its
contention that termination of Quiroz's parental rights was in S.M.'s best interests. This assertion is not
supported by the record.
In determining whether termination of Quiroz's parental rights was in S.M.'s best interest, we may
consider several factors, including (1) the child's desires, (2) the current and future physical and
emotional needs of the child, (3) the current and future physical danger to the child, (4) the parental
abilities of the persons seeking custody, (5) whether programs are available to assist the persons
seeking custody in promoting the best interests of the child, (6) plans for the child by the persons
seeking custody, (7) the stability of the home, (8) acts or omissions of the parent that may indicate that
the parent-child relationship is not proper, and (9) any excuse for acts or omissions of the parent.
Adams v. Tex. Dep't of Family & Protective Servs., 236 S.W.3d 271, 280 (Tex. App.--Houston [1st Dist.]
2007, no pet.) (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)). Not all of these factors
need be decided against the parent in order to find that termination is in the child's best interest. Id.
1. The current and future physical and emotional needs of the child
Quiroz argues that she has a stable home and that she has shown her ability to care for S.M. by taking
care of S.M.'s special medical needs. Moreover, Quiroz argues that simply because S.M. experienced
multiple hospitalizations under Quiroz's care does not mean that Quiroz was incapable of caring for her.
Contrary to this assertion, there was significant evidence that Quiroz could not provide a safe
environment for S.M.'s medical needs, as explained in more detail above. For example, the
Permanency Progress Report ,which was introduced into evidence, noted that officials at both Memorial
Hermann Hospital and Health Bridge Hospital were concerned about Quiroz's abililty to care for S.M.
The report noted that because Quiroz delayed seeking prompt medical attention for S.M., S.M.
received brain damage resulting from lack of oxygen. Id. Furthermore, the report noted that S.M.
repeatedly returned to the hospital for the same symptoms that might have been avoided with proper
medical follow-up and that Quiroz continuously missed important medical appointments for S.M. Id.
Additionally, even when DFPS was providing Quiroz with family-based services, Quiroz missed multiple
medical appointments and S.M. had to be hospitalized due to dehydration and malnutrition.
Failure to provide medical care, alone, has been found to support termination of the parent-child
relationship. See In the Interest of S.H.A., 728 S.W.2d 73, 87 (Tex. App.--Dallas 1987, writ ref'd n.r.e.).
Moreover, inability or failure to provide medical attention to the child, much like food deprivation, could
sustain a charge of parental neglect. Mitchell v. Davis, 205 S.W.2d 812-14 (Tex. Civ. App.--Dallas
1947, writ ref'd).
2. The current and future physical danger to the child
Quiroz asserts that DFPS introduced no competent evidence on this issue, and therefore there is no
evidence that supports the proposition that Quiroz is a danger to S.M. Again, as previously discussed,
there was ample evidence that Quiroz is unable to provide proper medical care for S.M. and, therefore,
S.M.'s placement with Quiroz constitutes a danger to S.M., both now and in the future.
3. The Desires of the Child
The record does not reflect that S.M. is able to articulate a desire with respect to her caregiving
situation. However, Panetski testified that S.M. was doing well in her therapeutic foster home placement
and that all of her needs were being met.
4. Possibility of Emotional and Physical Danger
As discussed previously, S.M. is a special-needs child and the evidence in the record indicates that
Quiroz repeatedly failed to attend the necessary doctors' appointments for S.M. or to promptly seek
medical care for her daughter. Such failure to provide medical attention to S.M. could sustain a charge
of parental neglect. See id.
5. Acts or Omissions Indicating Improper Parent-Child Relationship
From the minimal amount of parental visitation by Quiroz, as discussed earlier, the finder of fact
reasonably could have concluded that Quiroz was unstable and lacked interest in S.M. Moreover, these
factors could sustain a charge of parental neglect. See id.
6. Stability of the Home or Proposed Placement
As previously discussed, the testimony revealed that Quiroz's home environment was historically
unstable and unsafe. Thus, the fact finder reasonably could have concluded that Quiroz was unable to
provide stability for S.M.'s life, which has been found to be of paramount importance in a child's
emotional and physical well-being. See Hann v. Tex. Dept. of Protective and Regulatory Servs., 969
S.W.2d 77, 83 (Tex. App.--El Paso 1998, pet. denied).
On the other hand, the record shows that S.M. has resided continuously in a therapeutic foster home
since August 28, 2007. Panetski testified that S.M. was adoptable and that the current foster caregiver
was considering adopting her. Panetski testified that the current placement was meeting all of S.M.'s
needs. Thus, the judge reasonably could have concluded that S.M.'s new living arrangement provides
stability to S.M.'s upbringing.
7. Summary
Viewing the evidence in the light most favorable to the verdict, we hold that the fact finder reasonably
could have formed a firm belief that termination of Quiroz's parental rights was in the best interest of
S.M.
Quiroz also asserts factual insufficiency in finding that termination is not in the best interest of S.M.
Considering all of the evidence in the record, we hold that the trier of fact reasonably could have
formed a firm belief that termination of Quiroz's parental rights was in the best interest of S.M. See id.;
see White v. Tex. Dept. of Family and Protective Servs., No. 01-04-00221-CV, 2005 WL 174546, at *9
(Tex. App.--Houston [1st Dist.] Jan. 27, 2005, no pet.).
We overrule Quiroz's first and second issues. Given our disposition of Quiroz's first two issues, we do
not reach Quiroz's third issue challenging the sufficiency of the evidence supporting DFPS's
appointment as sole managing conservator. Likewise, we do not address DFPS's cross-point of error,
that the trial court erred in refusing to find that Quiroz failed to comply with the provisions of a court
order necessary for her to obtain the return of S.M. See Tex. Fam. Code Ann. § 161.001(1)(O).
Conclusion
We affirm the trial court's judgment.
Elsa Alcala
Justice
Panel consists of Chief Justice Radack, and Justices Alcala and Hanks.