Summary
upholding finding under subsection (N) and holding that mother was not prevented from regularly visiting or maintaining significant contact with her child where mother merely had to come to court to have an order denying contact lifted
Summary of this case from In re K.P.Opinion
No. 01-08-00548-CV
Opinion issued April 9, 2009.
On Appeal from the 314th District Court, Harris County, Texas, Trial Court Cause No. 2007-04365J.
Panel consists of Chief Justice RADACK, and Justices ALCALA and HANKS.
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. 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. 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. 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. 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. 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. 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. 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. 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.