### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00531
- CV

M. D., Jr. and C. A. , Appellant s

v. Texas Department of Family and Protective Services , Appellee

FROM THE 2 74 TH DISTRICT COURT OF HAYS COUNTY NO. 18
- 0752 , THE HONORABLE DAVID JU N K IN , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Following a bench trial, the trial court signed a final order terminating the parental rights of C.A. (Mother) and M.D., Jr. (Father) to their daughter , A.A

. 1 Mother and Father have
each fil e d a notice of appeal asserting that the evidence is in suff ic ient to support the tr ial court’s finding s that statutory grounds for term i nation exist , see Tex. Fam. Code § 161.001(b)(1)(E), (N), (O) , and that termination of their parental rights is in th eir child ’ s best interest, see id. § 161.001(b)(2)

. Mother and Father also contend that the trial court abused its discretion in appointing the Department o f F amily an d Protective Services (the Department) as A.A. ’ s sole permanent managing conservator

.

B e ca use we conclude that the evidence is insufficient to support t he trial court ’ s findings as to statutory grounds for termination , we will reverse that port ion of the tri al court ’ s

1 We w ill refer t o th e chil d and other family membe rs involve d in this cas e using p seudonyms o r by their in itials

. See Tex. Fam. Code § 10 9.002(d) ; Tex. R. App. P. 9.8(b) (2)

.2

order terminating the parental r ig hts of Mother and Father

. We will affirm , however, th at porti on of the trial court ’ s order appointing the D epartment as A.A. ’ s man aging conservator

.

B ACKGROUND
On D e cember 14 , 20 1 7 , Mother gav e birth to A.A. at Seton Hospital i n Austin. Because she was born eleven weeks premature, A.A. was i mm ediately placed in the hospital ’ s neonatal intensive care unit (NICU)

. On March 14 , 2018, the Department received a referral from the hospital alleging t hat Moth er an d Fa ther h ad faile d to “ engage w ith medical staff ” for the purpose of learning how to p ro perly care for A.A. and that hospital staff w ere concerned about discharging the child to her parents ’ care.

On March 2 9 , 2018, the Depa rtment filed a n ori gi nal petition in a suit aff ecting the parent

- child relationshi p, see k ing tempora ry managing con s er vatorship of A.A. and to terminate Mother’s and Father’s parental rights to A.A. in the event reunification could not
be achieved . That same day , the Dep art ment sought and obt ained emerg ency man aging conservatorship over A.A. and placed her with a foste r fa mily. Following an adversary hearing,

t he trial court appointe d Mother a nd Father temporary possess ory cons ervators with visitation supervised by the D epa rt m ent. The trial court also ordered the Department to conduct a hom e

s tu dy on the parents and d i rected the pa rents to comply with the Department’s family

- service plans duri ng the pendency of the suit.

B eginning on September 11, 2019, the case to te rmi nat e Moth e r’s and F ather’s parental rights proceeded to a bench trial befo re an associate judge

. S ee Tex. Fam. Code § 201.201 (power s of associate judge in child

- protection cases). During the pro ceedings, which
lasted six days, the associate judge hear d the following :3

• Mot her has a reported history of having sustained multiple he ad injur ies. For s ev er al years, Mother h as suffered from seizures and has been unable to drive. Mo ther has also been diagnosed with migraines, blood clots, and post

- traumati c st r ess disorder (PTSD) , and in the past, she has suffered from depression and relat ed an xiety. Ac co rd ing to
Moth er’s primary ca re physician, she takes a variety of medications to tre at h er conditions, including seve ral prescription s containing amphetamines.

• Mo ther a nd Father started dating in 2017, and the couple live s next door to Fathe r’s
p arents

. Fa t h er o wns a waste disposal c ompany and works approxim ately 1 2 hours a day.
Mothe r i s not employed but somet imes helps Father with his busines s
.

• On October 21, 2017, M ot her , who was four

- months pregnant with A.A. , was i nvo lved in

a c ar acc iden t as a pa s s en g er
. She was admitted to Set on Hospital in Ky le , then to Seton
Ho spital in Austin , and eve n tually to a rehabilitation center for physical and o ccup ational therapy. F ollowing a month

- long stay in the rehab ili tatio n cent er, an d af te r her seizures

worsene d a nd her ove rall health conti n ued to decline, Mother was hospitalized again a t Seton Hospital in Austin in early December

.

• S oon after her birth , A.A. was diagnosed with Down Syndrome, and due to difficulties
wit h feeding, a nas ogastric tube ( “NG tube”) wa s use d t o supplemen t her feedings in the
N IC U

. Due to c ompli cations from delivery, Mother was ini tially pl aced in the inten sive

c are uni t and due to an infection, u nder wen t an additional s urger y and rec eived two
blood tr ansfusion s
.

• H ospital social worke r , Beth Bishop, first met with Mot her in the hospital on D ecember 15, 2017. Bishop made a referral for the famil y t o D own Sy ndrome of Central Texas and arranged for Mot her to stay in the R onald McDonald house in January 201 8 so that4

Mother , who lived 25 m il e s aw a y , could see A.A. more oft en . Bishop testifi ed th at on one occasion, she received a phone call from the Rona ld M c D onald House stating that
staff there had “ not seen [ Mother] much this week ” and “ want [ed] to check on her plans. ” Bishop r eported at t r ial that during the mon th of January, Mot her or Fath e r visit ed A. A. in the NICU on thirteen days; on fift een o the r d ays , M other or Father ca lled
the NICU unit to check on A.A. The parents disputed the accuracy of the vis itation
numbers reported by Bish op
.

• Dur ing the mo nth of F ebru ary 2018, neither M other nor Father visite d A.A. in the NICU

. A ccord ing t o Mothe r a nd Father, they were unabl e to visit in Feb ruary because they were
both sick

— first, Mother with pneumonia , and then Father with influ e nza. Pu r su ant to hospit al p olicy, Mother and F ather were told by hospi tal staff that they could not c ome t o
t he NICU u ntil everyone i n the ho usehold was well. On fifteen days in Feb ruary , Mother
or Father called t he NICU to check on A.A. and to update staff o n th ei r ongo ing illness es.

• I n March 2018, the hospital be gan to prepare for A. A.’s dis ch a rge. On March 8, Bi shop spoke with Father about the parents ’ plans for A.A. once she went home with the family. Specifically, Bis hop t o ld Fathe r that, given M othe r’s sei zu re hist ory and Father’s work schedule, someone would need to stay wit h Mother and A .A. at all times when Father

was unable to do so. Bishop also explained that before A.A. c ould be discharged, this design ated family member, along w ith M o ther and Father, w ould ne ed to be trained on
h ow to care for A.A., in particular, on how to feed A.A. usin g t he NG tub e
.

• On March 14, d uring a “ care meeting ” with Mother at the hospital , the NICU doctor
emp h asized to M o ther that she a n d A.A. ’ s other car e takers needed to c o m mit to “ coming
this weekend to learn how to feed, ins e rt, a nd cl e an the tube ” and tha t th ey should expect5

to stay for three to s ix hours each visit. Mother responded that she would call th e NICU by March 1 6, 2021, with d a tes and t i mes t hat she and other f amil y m ember s wou ld come to the NICU for training

.

• B ish o p testified that , in her opinion, Mot he r and Father needed to meet with A.A. five days per week to establish “ fee ding success ” but that, according to her record s , duri n g the

mon th of March , t he pa r en ts visit ed A.A. on only nine days and c alled the NIC U on twelve day s . In addition, th ere were seven days in M arch with no calls and no visits. Bishop testified that Mother and Father also missed or were late to several sch e d u led
fee dings at the hospit a l in March

. W hile the parent s ’ designated family member ( A.A

. ’s paternal gr andfat h er) successf ully dem onstrated thr ee N G tube placements by March 23 , Father and Mother attempted but were unable to do so
.

• According to Bishop ’ s notes , t h ere was “ much concer n that moth er of the baby [ was] still

not coming [to the NICU ] con sistent ly , ” and t he “ [d]octor [ was ] concerned t hat baby [ was] not doing well ” and did not “ ha ve confide nce that mother o f the baby [was] going
to cha nge her behavio r
. ” Bishop t estified that h er i nitia l concerns for Mother ’ s mental
health a n d family s u ppo r t were somewh at a ll eviated du e to pa tern al grandfather’s involvement, but “the primary concern of cons istent care for the baby [had] still not been
ameliorated due to inc o n s iste nt in volvem en t f rom pare nts ” and because it was not clea r i f
the g r a nd p arent s were “ will in g, able to take [ A .A. ] home. ”

• In his testimony, Father disputed Bishop’s account of how oft en he visited A.A. at
the NIC U , but acknow ledged he m i s sed “qui te a bit. ” Father also re called tha t both he
and his father demonstrat ed t hree successful N G placements

. In he r te stimony, Mother described the training she received on carin g for A.A. on feeding A.A., and on placing6

the NG tube. Acc ording to M o t her, she successf ully place d the N G tube at least two
times

. By the time of tr ial , A.A. was no long er using the NG tub e , a nd Mother was feeding A.A. during supervised visits with A.A.

A s to e vents occurring after A.A

. ’ s removal on March 29, 20 1 8 , t h e associa te judge he ard, in part, evi de nce o f th e f

ollowing :

• As required by her famil y - serv i ce p lan, Mother u nderwent a p syc hol o gic al evalua tion
in January 2017 and again in August 2018, and both psycholog ists t estified at trial. According to their testimony, Moth er repo rte d t o both psychol og ists that approximately

ten ye ars ago , she had b een abduc ted and he l d captive in the Uni ted Kingdo m for a year by a former boyfriend , tha t he attempted to kill her, and that, in doing so, he caused her to
suffer a head i nj ury and PTSD

. In additio n, both ps ychologi s ts test ifi e d that testing had
indicated that M o ther’s in tell ect u al function is below average. The psychologist who
conducted t he J a nuary 2017 evaluation explained that Mother’s “ab st raction scor es” are particularly low an d that thi s would m ake it dif f i c u l t for Mother to complete comple x tasks an d le arn new informat ion. In addition, both psychologists t estified that Mot h er engaged in “positive impression management during the e va luation” and that her
motivation for tr eatment wa s below a vera ge. F i n a lly, b o th psychologists diagnosed
Mother wi th P TSD and major de pressive disorder, in remission, and re commended tha t
sh e receive parenting education, consultation with a doctor regardin g her medica tions, individual therap y, an d an evalu ation by a neuro lo g i s t

.

• In addition, the psychologis t who con duct ed M oth er’s Augu st 2018 evaluation explained
at trial t hat testing o f Mo t her’s psychopathology revealed concerns about her physical7

func ti oning and whether her health probl ems w ere, in fa ct, a res ult of ps y c h o logical
p roblems. The psychologi s t suggest ed t hat whi le Mother ’s reports of “peculiar experiences,” i ncluding her repo r ted abduction, indicate that she might be experiencing
delusion s, additiona l “outside data” would b e nee ded to con firm this

.

• A psy ch o l o g ical eva l uation was performed on F ather in Augu st 2 018 . Accord ing to the psychologist’s testimony at trial, testin g re v ealed that Father’s IQ is 63 and that this is
“in the impaired ra nge of fun ctioning,” meaning that Fathe r’s reason ing and e xec utiv e f u n c tioning is impaired. Assessment o f Father’ s ps ych o pat hology re vealed only that
Father had low to aver age distress, and based on this distress, the psychologist diagnosed
Father with “a djustment disorder unspecified.” The p sychologis t explain ed at t ri a l t hat
thi s means that there is a cu r rent stre ssor “t h at’ s going o n in his life that is causing problems”

— li kely the Depa rtme n t’s case to terminate his parental rights

— but no specific depre ss ion, anxie ty, or behavioral issues

. Fa th er has n o history of dru g u s e or o t her criminal activity. The p sychologi st r eco m men ded paren t coaching and parent services
for Fath er.

• I n Februa ry 2 01 9, Mother gave birth to ano ther child, N.A. Like A.A ., N.A. was born
p remature a nd, consequent ly, spent app ro ximately a month in the N IC U , fi rst at Dell
Children’s a nd then at Set on Hosp ita l in Hays C ounty . According to the soci al work er a t
Se ton Hays, Amy Mitchell, h ospital staff was concerned tha t Mother was visiting N.A. in the hospital “s porad ically

. ” How ev er, on cross
- exami n ation, M it chell ack nowledged tha t
th e notes from st aff in the NIC U at Seton Hays indicated Mother was at th e hos pit a l mo s t
da ys and that it was unclear from the notes how often Father , grandparents, or other family members visited. In additio n, although N.A. d id no t re quir e an N G tube, Mother8

h ad to be instructed s everal times o n h ow t o h old N .A. when s he was feeding her so that
th e child di d not get “ apnei c, ” which Mitchel l described as “c hoked up

. ” Ho spital staff report ed tha t Mothe r b e came “ t earful and fr u s t rate d ” by thi s in s tructio n. Upon hospital
staff’s r eq u e st, Mother roome d wi th N.A. for two days to d e monstrate to staff that she
could p roperly position and f e ed N.A. without incident. Upon s uccessful completion of
Mother’s st ay at the ho spital, N.A. w a s dis ch arged fr om t he hospital and pla ced in the
care of F ather’s parents , next door to Mother and Father

. Nothing i n the record suggests
that N.A. has been neglected or is otherwise not d o ing well in her grandparent ’ s care.
F ather testified that N.A. is doi n g well and is curr en t o n all her me di cal v i si ts.

At the c onc lusion of th e proceedings, the ass oci ate j udge signed a n order
recommend ing termination of Mother ’ s and Father ’ s parental rights. After Mother and F ather
aff irmat ively waived the ir right to a d e novo hea rin g , the t e rmination o rder beca me the judg ment of the referring trial co urt, and t his app eal follo wed

. 2 S e e Tex. F am. Code § 201.204 1(a)

.

I n their appellant ’ s briefs, Father and Mother each raise four issues chall eng ing the legal and fact ual s uffici enc y o f eviden c e supporti ng the t ri al court ’ s decision to termina te their parental rights

. I n a fifth is sue, M o ther and Father each contend tha t th e trial court erre d

2 Mo t her and Father init i a lly ti me l y fi led a reques t f or de n o vo hearing an d th e n, b e fore a de nov o hea ring was held, filed a noti ce of appea l in this C ourt. Because “ no thing in the rec ord indi cate [d] that the right to a de novo hearin g h ad been aff i rmativ el y waived ” and, theref o r e, bec au s e th e re was no f ina l j udgm e nt in the matte r , we d i smissed the app e al for want of jurisdict ion

. See C.A. v. Texas Dep ’ t of Fam

. & Protective Se rvs. , No

. 03

- 20

- 0015 8

- CV , 2020 Tex. App. LEXIS 6615 , at * 2

- 3 (T ex. A p p.

— Aust in Aug

. 18, 20 20, no pet.) ( m em. o p. )

. After affirmat iv ely wai v ing thei r rig ht to a de no vo appeal, M o th e r and F ather then f iled the notice s of appeal that are the basis of this appeal. In t his opinion, we will also refer to the assoc iate judge as the “ trial cou r t. ”9

in “ i gnoring th e p ar ental presumption ” when it appoin ted the Departm ent as A.A

. ’ s ma nagin g

con servator

. 3

STAN DA RD OF REVIEW

“ While parental ri ghts are o f co nst it uti onal ma gni tu de, they are not ab solute. ” In
re C .H. , 89 S.W.3d 17, 23 (Te x. 2002)

. To terminate a parent

- child relationshi p, the Department

m ust prov e by cle ar and con v i ncing evi den ce tha t ( 1 ) the p ar ent’s acts o r omissions constitut e
at least one of the enumer a ted statu to ry grounds for termination and (2) it is in the c hild’s
best interest to terminate the parent’s rights. Tex. Fam . Code § 1 6 1.00 1(b ) ( 1), (2) . Clear a nd
convinc i ng eviden ce i s “the me asure or deg r ee of proof that wil l produce in t he mind of the trier
of fa ct a firm belief or conviction as to the truth of the allegat ions sought to be established.”
Id. § 101.007

. “ Thi s heighte n ed p roo f standar d carries t h e weight and gra vi ty d u e proc es s requires

t o protect the fundame ntal right s at st ake. ” In r e A.C. , 560 S.W.3d 624, 6 30 (Tex. 2018)

.

In reviewing the sufficiency of the evidence in parental

- termination cases, we apply a sta n dard of r eview on appeal t hat reflect s thi s he igh tened s t an dard o f proof , see In re
J .F.C. , 96 S.W.3d 25 6, 26 4 (Tex. 200 2 ) , focusing on whether the evidence is such tha t a
reasonabl e factfinder could form a firm belief or conviction that the challenged fi n ding wa s true,

3 In what she i denti f

ie s as a six th issu e , Mot her s tates that the tr ial c our t erred in admi tting certain evidence at tr ial and , in a seventh issu e, that her trial attorneys pr ov ided ine ffective a ssistance of counsel

. In t he body of he r b r ief , howev e r , Mot her provides n o subst an t ive an a l ysis or arg ume nts o n these issues an d , in s te ad, “ r e quests l eave to file a supplemental brief to address ” these is sues. In her subsequently fil ed supplemen tal brief, these issues are not di s cussed. Conseque ntl y, we c o nclude that they ha v e been in a d e quately briefe d a nd ther e fore are waive d. See Tex . R. App. P. 38 .1 (f ), (i) (appellant ’ s brie f must “ state concisely all issues or points pre served fo r review ” and “ contain a clear and con cise ar g u ment for the con t entions ma d e , wit h appropriate c itatio n t o authoritie s a nd t o t he r ecord ” ) ; see also Vala d ez v. Avit ia , 238 S.W.3d 843, 845 (Tex. App.

— El Paso 2007, no p et.) ( “ An appellate court has no duty

— o r even ri ght

— to perform an independent review o f the record and applicable law to determine wh e t her th er e was error. ” ).10

In re J.P.B

. , 1 80 S.W. 3d 57 0, 5 73 (Tex. 2 0 05 )

. W e defer to the decisi ons of the factfi nder , w hi ch ,

“ havin g full opportunity to obs erve witne ss t estimony firs t

- ha nd, is the sole arbiter when ass essi ng the cr edib ili ty and demeanor of witne sse s
. ” In re A.B ., 437 S .W .3 d 4 9 8, 503 (T ex. 201 4)

.

“ T he d is ti n ction betw een legal and fac tua l suffici e ncy lie s in the ext ent to which
dis pu ted evidence contrary t o the finding may b e considered. ” In re A.C. , 560 S.W.3d at 6 30

. In

e v aluating the legal suf

fici ency of the evidence , t h e reviewin g court “c ann ot i gnor e u ndisputed

ev idence c ontr ary t o t he findin g , b ut must other wise a ssume the fact finder resol ved disputed
fac ts in favo r of the fi nding.” Id

. at 630

- 31 ; In re J.F.C

. , 96 S.W.3d at 2 66

. “A coro l lary to this requir emen t is th at a court should dis regard ev idence that a reas o nab le factfinder could have
disbelieved or found to h ave been incredible.” In re J.F.C. , 96 S.W.3d a t 266 . Evi dence is leg ally suf

fi cient if, vie wing all the evid enc e in the l ight mo st favorable to the fin ding and considering undis p u ted contrary evid enc e, a reasonable factfinder could have fo rmed a f i r m belief or conviction tha t the finding was true

. In re A. C. , 560 S .W. 3d at 63 1 ; In re J.F.C. , 96 S.W.3d at 26 6

.

A fac t ual

- suf

ficiency rev iew , in contrast, re q uires “weighing d isp u t ed evidence

contr ary to the finding against all the evidence favorin g the finding.” In re A .C. , 560 S.W.3d

at 631 . “ In a factua l

- suffici enc y review , the appellate court must consi der whether t he d isp uted
evidenc e is suc h that a rea s onable factfind er co u l d not have resolv ed it in favor of the finding.”
Id. “Evid ence is f

a ctually insu fficient i f, i n light of the entire record, the disputed ev idence a factfi nder could not ha ve cre dited in f a vor of a finding i s so signific ant that t he f actfinder coul d

n ot h ave formed a firm be lief or conviction t hat the f i nding was true.” Id.11 DISCUSSION
Sta t utory F indings

In this c ase, the trial court affirmatively found that the Depa r t ment met its bur den

a s to t he three statutory grounds alle g ed b y the Dep art ment

— subse c tions ( E) , ( N) , and (O) of
S ection 161.001(b)( 1)

— and that termination of M o ther ’ s and Father ’ s parent al rights was in
A. A

. ’ s best interest. On appeal, Father and Mother chall e nge the le gal and fac tual suf ficiency
of the evidenc e sup por ting the t r ia l court’s fin d ings a s to each stat u t ory ground, along with the
trial court’s b est

- interest f inding

. We will begin our r eview b y determini ng whether the evidence
is legally and factu a lly suffic ient to support the trial court’s finding o f en dan germent u n d er subsection ( E )

. Se e In re N.G. , 57 7 S.W.3d 230, 237 (Tex. 2019) (per curiam) ( holding that due process requires appellate courts to review challenged subsection (D) and subse ction (E) findings,
even when t rial court made anot her find i ng u pon which the te r mination coul d be uphel d).

Subse ction (E

) , En da ngerment The trial court may order ter m ination o f the paren t

- child relationsh ip under

s ubse ctio n ( E) if clear and convi ncing evidence estab lis hes that t he pare nt “engaged in conduct

o r kno wingly placed th e chi l d wi th p ers ons who engaged i n conduct w hich endangers the physical or emotional w ell

- being of t he child.” Tex. Fam. Code § 1 61.001 ( b )(1) (E)

. I n this context, end ang erment mea ns “mor e th a n a thr eat of metaphysical injury or the p oss i b le
ill effects o f a less

- than

- id eal fa mily enviro nment

. ” Te xas Dep ’ t of Human S erv s. v. Boyd , 727 S.W .2d 531, 533 (Tex. 1 98 7)

. In st ead , a c hild is “en da n ge red ” if the child is exposed to loss or injury or if her emotional or physical healt h is jeop a rdiz ed. A.S. v. Tex a s Dep’t of Fa m ily &
Prot e ctive Se rvs. , 394 S .W.3d 703 , 711 (Tex. App.

— E l P aso 2012 , no pet.)

. “ As a general r ule,12

conduct that sub

ject s a child to a lif

e of uncer tainty and instabil ity endange rs the ph ysical and

em otiona l well

- being o f a child. ” In re J

. O .A ., 28 3 S .W .3d 33 6, 3 36 (Tex. 2 009)

. Whe n ev alu ating the evidence with respect to subsec tion (E), the focu s is on the parent’s cond u ct

— including acts , omi ssio n s , o r failures to act

— and, mor e s pecifi c ally, whether
evidence exists t h at t he ch ild ’s phys i c a l or em otion a l wel l

- being was en dangered a s a d i re ct

res ult of the parent’s conduct. A.S

. , 394 S.W.3d at 711

. T ermina t ion under subsection (E) requires more th an a single a c t or omissio n ; instead, the evidence must d emo nst rate a “v o lunt ary, deliberate, and consci ous cours e of condu ct” by the pare nt. In re M.L .L. , 573 S

. W.3 d 353, 365 (T ex. App.

— El P aso 2019, no pet.) ; In re M.E.

- M.N. , 342 S.W.3d 254 , 2 62 (Tex. A p p.

— Fort
Wort h 2011, pet. den ied)

. S u bse ction ( E) does not require , how e ver , th at the conduc t be directed

at the child or that the chil d a c t ually suffe r injury

. In re S.R ., 45 2 S.W. 3d 351, 3 60 (Tex. A pp.

— Houston [14t h D i st.] 2014, pet

. denied )

. Fu r t her , to determine whethe r a parent e ng ag ed i n an

e ndange rin g course of condu c t, t he factfin der ma y consi der con duct t hat occurred b oth b efore
and after the child was bo rn , including conduct that occurred after t he child was removed from
her par ent ’ s cust ody

. In re J .O.A

. , 283 S. W .3d at 345 ; In re S.R. , 4 52 S.W.3d at 360

. In th is ca s e, A.A. was r em ov ed from her parent s’ custody whi le she was s till in
the c a re of the NICU. There is no allegatio n or e vidence sugg estin g that a n y act or omi s si on by
the parents cause d A.A. to be bor n premature o r that A.A. suffer ed any ph ysical harm w hil e she

was in the N ICU. Inst ea d, at tr ial and n ow on appeal, the Depar tment argues tha t Mother and
F ather both engaged in “endan gering con duct” by (1) fai l i ng to visit th e NICU wi t h e nough
regu larity to pro per l y bond with A.A. ; (2) failing to complete t he h ospital’s requi re ments for
le arning h ow to insert an d mainta in the NG tube ; and (3) failing to at t e nd a m ajority of A .A. ’ s medical ap pointments durin g the pend e n cy of this cas e. Conse q ue n tly, a lar ge portion of th e13

evidence pr esented at trial c onc erne d t h e frequency of th e parents’ v isit at ion at t he NICU , inc luding undi sputed evidence that the pa r e nts failed to visit the NICU during the entir e month
of Febru ar y 2018, as well as th e reasons off ere d by the pare nts for their fail ure to visit more frequent ly. Th e Depar tmen t a lso pre sented evid enc e, although di sputed b y M other and Father , that they both failed to c om plete th ree s uccessf u l p lac emen ts o f the NG t u be, as requi red by the
NICU st aff. Fin ally, social worker Bishop testified that while A.A . was i n t h e N ICU , she was

c oncerned and remai ned c o n cerned abo ut whe th er the parents could adequ ately bo nd w ith A .A.
and whe ther t h ey c ou ld provi d e “consis te nt care for the baby” due to what she considered to
be their “i nconsistent involvement.”

While we agre e th a t t he trial cou rt , as the trier of fac t, could ha ve reason ab l y infer red f rom t h e evidence before it that Mother and F ather fai led , wit hout a suff icientl y v a l i d

reason , to regula rl y v isit the neon at al unit an d that th ey failed to learn how to insert and ma i n ta in
the N G tu be , we disagree that th is conduct , st anding a lone, supports termination under
subse c tion (E)

. 4 For example, to the extent Bishop suggested that the parents irregular visitation was generally inadequate for proper bo n ding and to learn to ca r e for A.A., t h e r ecord doe s n ot
include an y evidence as to w hat m inimum visitation schedule wou ld ha ve b een necess ary for
Mother and Father to “ prop erl y bond ” with A.A. or how a fail ur e t o “ p roper ly bond ” i n the
N ICU was enda ngering to A.A

. See C.L.J. v. Texas Dep’t of F am . & Protectiv e Se rvs. , No. 03

- 13

- 00646

- CV, 2014 Tex. App. LEXIS 3146 , at *13

- 14 (Tex. App

. — Aus tin Mar. 20, 2 014, pet.
den ied ) (mem. op. ) (concl uding tha t e vid ence of parents’ rate of visitation t o NI CU was leg ally

4 W e r e co g nize that “endan g erment” does not ne ed t o be establ ish ed as an independent propo siti o n bu t may, i nste ad, be inf e rre d from the parental misconduct alon e. Texas Dep’t of Human Servs

. v. B o yd , 727 S. W. 2d 531, 5 33 (Te x. 19 87 )

. On this record, how e ver, we ca n not conclude that a reaso nable factfinde r could infer enda ngerment based solely on the pare nt s ’ fail u re to visit the NICU and to dem ons tr ate pr oficiency with the NG tube

.14

insufficient to su pp ort ter mination bas e d on endangerme n t a nd noting that there was no evidence
“of some objec tive, re liab le standa rd re lat e d to NIC U visit ation th at co uld le ad a reason able
pers on to belie ve [parents’] rate of visitation ” en dangered t heir child). Finally , wh ile we

r ecognize th e NIC U staff’s co n c e rns with d ischarging an infant to par ent s who, in th eir prof essi onal opi nion, la c k the skill s necessary t o c are fo r a spe cial

- n eeds inf an t, th e pr imary

concern at the time of di scharge was the parents’ ability t o prof ici e ntly use the NG t u be. The
undi sputed evi dence shows tha t both Mother a nd Fathe r at tempted to dem ons t r ate place me nt of
th e N G tube a t the ho s pi tal , a nd nothin g i n the record suggest s that their inability to demonst rate prof iciency

— as meas ured by thr ee su c c essful p laceme nt s

— w a s a “ voluntary , deliberate , and
consci ou s course of condu ct

. ” 5 See In re M.L.L. , 573 S.W.3d a t 365

.

B ased on the recor d be f

or e us, w e conclude th at the evidence demonstrating that the p ar ents faile d to visit A.A . at the NICU w ith a f requ en c y sat i sfa ctory to NICU sta ff a nd th at the paren ts fa iled to demonstrate pro fi ci ency w it h A.A.’s NG tube before the sc hedul ed date o f
he r d i scharg e is legally insufficient, standing alone, to supp ort a finding b y clea r and co nv incing
evidence th a t th e p arents e ngage d in an “volunta ry, delib erate , and consci ous c ourse of condu ct”

t hat en da ngered A

. A. See In re C. L.J ., 2 014 Tex. App. LEX IS 3146, at *13

- 14

. Moreov er, even upon considerin g this ev i de n ce along with evidence concer ning the pare nt s’ f a ilu r e to attend all
of A.A.’s medic al appo i n t me nt s during the pendency of t his ca se, we c annot conclude that the
evidence is le ga lly su ffic ie nt to suppo rt the trial court’s fin ding regarding subsection (E)

. See id

.

5 We are no t suggesti n g that a p arent

- chi l d relat io n sh ip cannot be term in a te d based on a parent ’ s ina bi l i ty t o care for his or her child , see Tex . Fam. Code § 161.003(a)(1) ( providing for termi nation upon finding that parent has mental or emotional illness or me ntal de fici ency t h at renders parent u n a ble to p r ovide for ph ysical , em otional , and mental needs o f chil d until child i s eighteen ) , only th at under the evidence presented in this case, the failu re to demonstrate proficiency with the NG tube , although cr itical , by a c er t ain deadline does n o t cons titute endangering condu ct u nder subs e ctio n (E)

.15

(con cluding tha t evidence was legally i n s uff icient to s uppor t ter minat ion bas ed on endangerment ,

even when it considere d “ the tes timony about appellants ’ mari huana use during this c ase o r the fact that department was involved with [ appellant mot her ] with respect to her o lder children ” )

. In oth e r wor ds, even v iewing th is evi de nc e in the light most favorable to the fin d i ng , w e cannot
conclude that a reas onable fac tf in der could h ave forme d a firm bel i ef or con v ic t ion th at the parent s e ngaged in a course of conduct that enda ngered A .A .’s physical o r emot ional well

bein g. See Tex. Fam. Code § 161.001(b)( 1) (E)

. B e c au se this i s t he only evide nc e identif ied as

e ndangering conduct a s to Father, we r everse the t rial court’ s endangerme nt finding a s to Fath e r.

As to Mother, ho we ver, the evidenc e p re sente d at tri al rele vant to th e issue of
end angerment was not l imi ted t o her c onduct during A.A.’s time in th e NICU or to her failure

to atte n d some of A. A .’s m edic al appointmen ts during the pendency of this case

. A t trial, the Depar tme nt als o p r esente d eviden ce s h owi ng that M other had previous invol vement with the
D epa rtm ent a s to an older son, J .A , who is unre lat ed to Father

. 6 In January 20 15, before she was dat ing Fathe r , Mother was r efe rred to the Department bas ed on allegations tha t she had used
d r ugs and tha t sh e had m ed ically neglected J. A

. After Mother o btai ned me dical care for J

. A. and
sub mi tted to a d rug test , which was negative , th e refer ral wa s ru le d out.

In October 20 15, th e Department receiv ed a se cond r eferral fo r Mot her as t o J.A.
A fter being arr e st ed for t heft arising from a car rental , Mother l eft J

. A ., who was then three years old , in the care of a non
- relative f riend. Th at friend l at er felt un able to meet J.A.’s n ee ds and,

con s eq uently, cont acted the D epartment. While Mother w a s incarcer at e d , t he De par tment place d

6 Mo t her also admitte d at tri al that she had a not her child , G. L. , who a t the time of trial was ninet een ye ars old and live d in Colorado . M o ther testified that she was G

. L

. ’ s ca ret a ker u ntil he was si x ye a rs ol d , but i t is unclear fr o m the rec o rd w ho had legal custody o f G. L. aft er th at ti m e , and ther e is n o evidence of Department invol vement as to G.L.16

J.A. with foster parents a n d s ubse quently sought to terminate Mo ther’s ri ghts to J .A. Mother
was release d from incarce ratio n in March 2016, and a jury tr ia l to t ermi nate her paren tal rights to
J.A. wa s held i n Marc h 2 0 17 . At t he c o n c lusion o f the trial, the jury denied the Departm ent ’s request for t e rmin ation. Mot her was app ointed J. A

. ’ s possessory conserv ator, and J.A. ’s f o ster parents w er e appointed his p erma nent manag ing conse rvat ors
.

J.A.’s f oster father and th e De part me nt c ase w or ker t hat investigated the claims agains t Mo the r invol ving J.A. bot h test ified at the t ria l to term inate Mother’s a nd Fath er’s rights

to A.A. J.A.’s foster father testified that whe n J. A. initi all y b eg an living with h im and h is wife , J.A

. was ph y sic a lly and ver bally aggressive and that he had m ade pro gress w ith these b ehavioral
iss u es s i nce be ing in th eir home. In addition, J.A. h ad to h ave “ fairl y ma jor den tal work” to
add ress denta l problems tha t arose b efor e his re mov al bu t was no w re ceiving r egu l ar ca re. Ac co rding to J.A.’s foster fath er’s t es tim ony, Moth er failed to attend app ro x i m ately half of h er scheduled visits wit h J.A

. after s he w a s rel ease d from pri son but while the case involving J.A.

was st il l pe nding

. S i n ce being appo i nted possesso ry c o nservator of J.A., Mother has be en i n
cont act w ith J.A., but she has not had in

- p e r s on contac t.

The Department caseworke r t es ti fied that t he D ep artm ent’s i nve stigation of
Mother’s c are of J.A. re vealed th at, due to n egl ec t , J.A.’s teet h were severel y de c ayed, and a majority of his baby teet h ha d to e ven tually be r emoved or “c apped.” She a l s o te stified t hat J.A.’s therapist ha d diagn os ed hi m wit h PTSD a nd with re active

- at tachment dis or der and that
th is di agnosis indi cated to her that J. A . “had no one t o run to or t o mee t his needs.” Final ly,
the case wor ker testif

i e d that, during the p endency of the case invo lv ing J.A., M other fail ed to
p art icipa te in or complete services required by th e De partment , i nc l ud ing failing to attend multiple r a ndom d rug tes ts a nd miss ing numero us therapy app ointments.17 In ad dition , t he trial c o u rt heard ev idence that , in the De partm en t’s view, s how s

a pat tern of dr ug use by Mot her. F irst, the Department prese nted evidenc e, an d M other
ack nowledged in her tes t imony, th at in 200 8 she plead ed guil ty to the offense of po ssession of a controlled s u b stance. A lso , accor ding to a p sycho lo gical evalu ati on perf orme d on M ot he r in
J anuary 2017, Mot her admitted to t he p sycholog ist t h at she had once used marijuana a nd cocain e “a long ti me a go.” F inal ly, th e trial court heard tha t while the D epar t m ent ’s case invol ving J.A.

w as pendin g , Moth er failed to sub mit t o approxi mately f iv e drug tests in 20 16 , des pite the fac t
tha t the Depart ment offered to t ransport Mother to those te s ts , a nd in May 2019, while t h i s case involving A.A. was pe n di ng, Mot her produced a p ositive r esult for m ethamphet amine using a
ha ir

- fo l licle test.

Howev er, the tr ial cour t also he ard that in June 2018, a month a fter testin g
p osi tive for meth a mphetamine , Mother prod u ced a cl ean ha ir

- follicle test for methamphet amine
and t hat a hair

- follicle test can tr ace the use o f substa nces as far ba c k as 90 day s . In a ddi tion , in

a psychological evaluation conducted in August 2018, Moth e r rep orted to the psycho logist t hat
sh e had nev er u sed alcoho l o r illegal drug s, and at t r ial, Mothe r d e nied having ever tak en a ny i lle gal dru gs . Mother’s therapist , a tr auma an d substa nce
- abuse special ist who be gan tre ating
Mother whil e th is case w a s pendin g , tes tifi e d at tria l that M o ther has ma de e xcellent progr es s in her therapy for PTSD , that she h a d not seen any evidence that Mother is us ing illegal drugs , and
tha t she attributes Mo th er ’ s posi tive d rug test to her pre scription f or Af rin . Simil a rl y, Fathe r testif ie d t hat he did no t use drugs and that he had no t seen any evidence of drug u se by Mot h er. Final ly, the tr ial c ou rt hear d conflicti ng testimony ab o u t whet h er some of the me d ic ations that
Mot her takes to control her seizur es could h ave pr oduced a posit ive test fo r m eth amphe t amine.
Mot he r ’ s primary care p hysician told the trial cou rt that s e veral of t he medicat ions th at Moth er18

has been prescribed cou l d have r esulted in positi v e hair follicle t est f or methamphetam ine,
wher eas a toxic o lo gist emplo yed by t he lab that pr oce ssed M other’s p osit iv e dru g t es t expl ained
tha t they would not h ave.

A p arent’s m istreatment of o ther childr en may be considered in deciding w h ether that pare n t engaged in a co urse of conduct that endanger ed t he physi ca l or emotiona l wel l

- being
of a c hil d. C e rv antes

- Pete r so n v. Tex as De

p’t of Fam

. & Protective Ser vs. , 221 S.W .3d 244, 253 (Tex. A pp.

— Housto n [ 1 st Dist.] 2006, no pet. )

. In ad d ition, evidence o f a parent ’ s crimi nal history , convict ions, and r esulting i mprisonment may esta blish an en d a n ger ing cou r se of conduct

. In re J.S ., 584 S.W.3 d 622, 635 (Tex. Ap p.

— Housto n [ 1st Dist.] 2019, n o p et

. ) . Sim ila r ly , b e ca use it exposes the chil d to the possibi lity t hat the parent ma y be impaired o r imp risoned, a
p arent ’ s i llegal dru g use and d rug
- related c rim inal activity ma y s u p po rt terminatio n under subsection (E). See A.C. v. Texas Dep’ t of Fam

. & Pr otectiv e Se rvs. , 577 S.W.3d 689, 6 9 9 (Tex. App.

— Austin 2019, p et. denied) ; In r e M.C. , 482 S.W.3d 675 , 685 (Tex . App.

— T exark ana 2016, pet. d enied)

. Bu t se e In re L .C.L. , 599 S.W

. 3d 79, 85 (Te x. A pp.

— Houston [1 4th Dist. ] 2020, pet. filed) (en banc) ( explain ing that “ [s]ome wher e along t he way , [th at court of appeals ]

co nfl ated drug use wi th child end anger ment such that mere d rug use b ecame conc lusive evidence
that a c hild was e n d a n g ere d ” )

.

Assumi n g tha t the trial c o ur t resolve d disp uted facts in favor of the finding of endang e rm ent and t h at it d i sregar ded all evid ence that a re a s onabl e f actfinder could have
disbeliev ed, we conclude t h at evi dence shows that bef ore A. A

. ’s birth in 2 0 17 , Mother neglec ted

an older chil d; th at she wa s con victed of criminal activity in 2008 a nd incar cer a ted for criminal
activi ty i n 2 01 5 ; that Mot her fail ed to appear for drug tests in 2016 because she was using drugs;
and that , based on her most recen t p o s iti ve drug test, Mo the r has use d ill egal drugs as rec ently as19

2 01 9

. Co nsequentl y, a ft er v iewing t he e vidence in the l igh t in the most favorable to t he t rial

cour t ’s f inding a nd considering the un disp uted evidence to the contra ry to the fin d ing un der
subs e cti on (E) , we co n clude that a reasonable f a c t finder coul d have formed a firm beli ef or

co n viction th a t Mot her engaged in a cours e of conduct tha t endang ered A.A.’s physi cal and
emoti o na l well

- bei ng.

Upon considerin g the entire record, ho w ever , i ncludin g th e dispu ted evi den ce
cont rary to the findi ng t hat M oth er en ga ged in conduct endanger ing to A

. A.

— incl udi ng her pri mar y care phys ician ’s t estimon y that M other’s positive test for methamph e ta mi ne in Ma y 2019 was caused by her prescriptions, h er negat ive dr u g t est the fo llow ing month, and the
testimon y o f her the rapis t stating that Mother had mad e signif ican t pr ogress in he r t her apy a nd
th at she had no t s een an y signs of dr ug use by Mothe r

— and weighin g t hi s evidence against
al l the evidence fa v oring the fi nd i ng of enda ngermen t

— including evidence of criminal act ivity , the details of which are unknown , and neg l ect occurri ng se v eral y ears befo re A.A.’s birth

— we conclude that the ev i d ence is factually insufficien t t o supp ort the t rial court’s fin ding t h at Moth er
enga g e d in a co urse of conduct t hat , at the time of A.A. ’ s birth, was end a ngering to A.A. In
oth e r wo rds, we conclude, in light o f the entire of record, tha t the dis p uted evidence co ntrary to
the finding is so sig ni f

i can t that a reasonable fact f i nder coul d not ha v e fo rm ed a fi rm beli ef or

conv iction that M other enga ged in c onduct which endan gered A.A.’s p hy si cal or emo tional well

bein g
. T he evi denc e is fa ctually insuf ficient to su p p ort the trial court’s finding th at ter mination of Mother’s pare n tal rights wa s warr ante d u nder s ubsectio n (E)

.20

Subsec tion O

, Comp liance with Family
- Service Plans Next, we consider M othe r ’ s and Fath er ’ s legal and fa ctua l

- suf fici en cy challen ges
to the trial c ourt ’ s determination that termination of their parental r i ghts was warran t ed un der

s u bs ection ( O ). To termina te parental righ ts under subsectio n (O) , the Department must show by

c le ar and conv i n cing evide nce th at (1) the c hi ld was remov ed u nder Chapte r 2 62 of the Texas Family Code f

or a buse or negl ect , (2) the c hild has been i n the cons erva torship of the Department for at least nin e months , and (3) th e parent “ failed to comply with t he pro vision s o f a

cour t order that spec ifica lly establishe d the actions nece ssary for t he parent to obtain return of
the child

. ” S ee Tex. Fam. Cod e § 161 .0 0 1( b)( 1)( O)

.

In their briefs , Mother and Fa ther d o not dispute t hat A.A. was in t he
conservatorsh ip of the Department f or a t le ast n ine month s or that their fam ily

- serv ice plan

cons ti tutes “ a court order that specifically establ i sh ed the action s nec ess ary for [ A.A. ’ s return ]

. ”
I n s tead , Mother an d Fathe r contend th at t he evidence is legally and factua ll y in sufficient to

su pport fi nding s th at th e y failed to comply with their f amily

- service plans and that A.A. was

remo ved for “ unde r Chapter 262 fo r abu se or negle c t. ”

W h e ther a child was remove d for “ ab u se or neglect ” depends on the surround ing
facts an d ci rcum stances and is gener ally determ ined o n a ca s e
- by

- case ba s is. I n re S .M.R. , 434 S.W.3d 576, 583 ( Tex. 2014) ; D.F. v. T exa s Dep ’ t of F

am. & Pr otec tive S ervs. , 393 S.W.3 d 82 1,
8 30 (Tex. Ap p.

— E l Paso 2012 , no pe t.)

. The phrase “ abuse o r neglect ” is n ot define d in C hapter
262 , and the c h apter d o es not indic ate any special or te chni cal mean ing for th e phr ase
. I n r e S.M. R

. , 434 S .W.3d at 58 2

- 83

. T he Texas S uprem e C ourt has recognized , however , t hat the phrase “ a buse or neglect ” i s n ot l imited to allegations o f act ua l a buse or neglect in flict ed on a child but, in s t e ad, necessaril y i n cl u de s the ri sk o r th reats posed by the en viron m ent in whic h th e21

ch ild is placed

. S e e I

n re E.C .R ., 402 S.W. 3d 2 39, 2 4 6 ( Tex. 201 3)

. “ Thus, we are to consider

‘ neglect ’ as used in [subsection ( O)] in a broad sense , w hi ch may encompass th e r i sk of futu re

ne glect , and ask whet her a person of reas onable prudence co uld hav e found that [ th e child ] fa ce d
an imm ediate dan ger to [her ] heal th o r safety. ” In re C. L.J

. , 2014 Tex . App. L EXIS 3146, at *1 6 (citing In re E.C.R. , 402 S .W.3 d at 248 ).

A t trial, t he Departme nt presented little ev idence co ncerning it s initial dec isi o n
to rem ove A.A. I n fact, no De partment i nvestig ator or casew orker ass igned to A.A. ’ s case
t estified at tria l. Howeve r, t he clerk ’s record reveals that i n s u ppo rt of its petiti on for em ergenc y

remov al , the Departme nt submitted the affida v i t of Kelly J ohn son, a Depar tment c asew orker
sup ervisor

. In her affi davit, Johnso n sum marized a discussion she had with s ocial worker Bish op and the NICU staff ’ s con cern s th at “ the parent s of [ A.A .] had not followed through with
engag ing with medica l sta f f to learn h ow t o ca re for their ba by , ” who “ was born premature and

r e quire s feedin g thr ough a specialized tube. ” 7 Ba se d on the factual a ll eg ation s presented in
J ohnson ’ s affid avit , along with the trial court ’ s finding in its removal ord er that A.A. was i n

“ imme d iate dan ger , ” the Departmen t argu es that th e record is suffic ient to es tab lish that A.A.

7 According to the affidavit, Bishop told J o hnson that (1 ) Mother had self

- r e ported tha t she suf f e re d fr o m a t raumatic brain i nj u ry and sei zu r es, alon g with PT SD , “ whic h may i mpac t h e r abilit y to care for A.A. ” ; (2) “the parents have not engaged wi th [A.A.’s] care and have not demonstra ted t he ab ility to f e ed [A .A.] or pr ovid e f or he r n eed s”; ( 3 ) in Jan ua ry 2018, the parents vis ited A

. A

. thirteen time s , and there wer e five days w ith n o contac t; ( 4 ) in Febr uar y 201 8, the parents did not visi t A.A., but called nine tim es to che ck on her; ( 5 ) Mother repor ted o n F ebruar y 22 , 2018, that fa ther h ad t he flu a n d w as tol d by hos pi ta l staff tha t t hey could not r etu r n to the NICU unt il Ma r ch 1; ( 6 ) hos pita l staff i nformed t he parent s that t hey need to “have an i ncreas ed pre sence at hosp ita l to lear n how to care for A.A.”; ( 7 ) the pare n ts visite d A.A. n in e times b e t wee n Ma rch 5 and Ma rc h 29 , 2018, an d ( 8 ) the parents d i d no t pre sent fo r an over ni g ht vi sit unt il th e week of Ma rch 2 9, 20 18, “ but this was not enou gh t ime f o r the p aren ts to d emonstra te the ability to care for A.A. conti nuously or co nsistentl y.”22

was removed for risk of neglect. 8 That is, t h e Department suggests that the tri al c ourt could have

reason ably concluded fr om the cir cu mstanc e s as presented in the removal aff idav it , inclu d ing
A .A. ’ s special ized medical needs an d Mother ’ s seizu re hi story , that A.A. ’ s release from the
NIC U to her par e nts ’ c ustody posed an immediate dan ger to her health o r safet y
. Base d on the
record before us, we agree with the D epartment ’ s con t ent i on
. See In r e E.C.R. , 402 S.W.3 d

at 248

- 49 ( rel ying on casework er ’ s affidavit submitted in support of removal and fi ndin gs in
removal order to suppor t find ing that child was r em oved for abuse or ne g lect). Applying t he applica ble sta n d ards for le gal and factual suffic i ency , we conclude that the trial c ourt could have

re as o nably formed a firm belief or conviction that A

. A. w as removed due to a risk of neglect

.

Next, we consid e r whether t he evidenc e is sufficient to show that Mother a n d
Father fai led to c omply with t hei r family

- service plans

. Partial o r substa ntial compliance with a
court

- ordered family

- servic e pl an is not enough t o avoid a term ina t ion finding u nde r subsection (O ). W. C. v. Texas Dep ’ t of Fam. & Protective S e rvs. , No. 03

- 19

- 00 7 13

- CV, 2020 Tex. App.
L EXI S 2226, at * 10 (Tex. App.

— Austin Mar. 18, 2020, pet. den ied) (mem. op.)

. On the other hand, partial or substantial compliance with a court

- order ed family

- service plan does not
establish non

- compliance as a matter of law

. See In re S. M.R. , 434 S.W.3d a t 584 ( “ But when questions o f com pliance and degree [under subsection O ] are raised, and the trial court declin es
t o terminate on t his ground, the ev i dence is not conclu sive; it is disputed. ” )

. Instead, w hether a parent ha s d o ne e no ugh u nder t he family

- se rvice pl a n to avoid term i nation u nder sub section (O)
is or dinarily a fact question and decided on a case

- b y - case bas is. Id. ; In re J.S. , 291 S.W.3d 60,
6 7 (Tex. App.

— Eastland 2009, no pet.) (ana lyzing subs tan tial

- compli a nce argument as factual

8 In it s e m ergency order for p rot ection, th e trial court s t a te d t hat it c ons ider ed the e vidence, includ ing Jo hnson ’ s s worn affidavi t , a nd found that A.A. ’ s re mova l was j ustified because “ the re is an i mmediate dan ger to the phy sical heal t h or safet y of [A.A

. ]

. ”23

sufficie nc y challenge ))

. In addition, the s e rvic e plan must be s pecific enough to allow for the parent ’ s compliance to be obje ctively measured

. In re C.A.W. , No. 01

- 16

- 00 719

- CV, 2017 Tex. App . LEXIS 6767, at * 12 (Tex. App.

— Housto n [ 1st Dist.] 20 17, pet. denied ). ( m em. op.). Finally, a cour t may n o t or der term ination under subsection ( O) if the parent pro ves by a
pre ponderance o f t he e vid ence that the parent was unable to comply wi th a s peci fi c provision
and the parent made a good

- f a ith ef fort t o c omp l y a nd failure t o do so was no t the parent ’ s fault

. Se e Tex. Fam. Code § 161.001(d)

.

A s previously discussed, no one from the De part men t testified at trial as to what
Mother ’ s and Father ’ s f

am ily

- service plans re quir e d and whether M o ther a nd Father c omplied
with thes e re q uirements. Nevertheless , Mot h er’s a nd Fath er’s se r vice plans w ere a dmi tte d
into evi de nce a nd e st ablish that the par ent s were both required , in part, to “ att end medical

a ppoi nt ments for [A.A.] or make sure that one p e rson f rom [the] family t ha t will b e a primary
caretake r attend the a p po in tment

. ” O n appe al, t he Departmen t asser ts that the u ndis puted

test imony o f A. A. ’s fo s ter mot her e stablishes that both Moth er and Fa ther fai le d to c omply with
this re q uireme n t

.

A t trial , A .A. ’ s fos ter moth er expla ined that while t his case was pend i ng, A.A.
had a t otal of fifty

- two medical a p p o i ntment s ; that Mother and Father were notif ied of thirty

- n ine
of th e a ppointm ents ; and tha t Mo the r at tended fifte en and F ather att ended ten of A.A

. ’ s medical

a ppo i ntment s
. When asked about whether othe r family m embers attended A. A

. ’ s m edical appoint me nts , A.A. ’ s foster m other sta ted, “ So, for a while when [Mothe r] was having a h igh

risk pregnancy in and out of the hospital , [Father ’ s] parents were co ming to som e a p pointments.
I can ’ t te ll y ou how many, but I think it was like four or f ive maybe. The n they had one family friend, Walter, I believe came to one. I know [Father ’ s sister ] came to on e eye appointment . So,24

there ’ s been several p eople th at ha ve come, bu t it ’ s not b een, like, c onsi stent p eople coming, if that makes any se n se. ” The foster mot her also testified that A.A. had b een hos pit a l i zed four
times dur ing the pendency of the case, and that the parents had vi sited A.A. in the ho spit al w hen given th e o p p ortun ity.

In his testimon y, Fathe r ac k n owledged that he likely miss ed about half of A. A. ’ s medical appoi ntment s but explained that either Mo ther or another famil y member that would
be a primary caretaker for A.A. attended any med i cal appointments th a t he missed

. S imilarly,
Mother te stified th at she be lieved tha t she had attended most o f A.A.’s medical appoint ments and
that she only failed to attend when she was s i ck o r in the hospital. Finally, A.A. ’ s ped i atrici an testified tha t , a t the tim e of tri a l , he ha d seen A.A. approximate ly eight t ime s and that each of
those appo intments w as att ende d by one or both of the foster parents, one o r b oth of the parents , and a casew orker fro m the Department.

Contrary to the Department ’ s sugg e s t ion , we do not r e ad the parents ’ family

service pl a ns a s specif

ically requiring b oth p aren ts t o atten d all of A.A. ’ s me dica l appointment s
. In fact, nothing in the language of the serv ice plans require s either parent to attend to A.A. ’ s medical appoint ment s, so long as th e app ointment is attend ed by a “ per son f rom [the ] family
tha t will be a pr imary caretake r
. ” Nevertheless , v iewing the e vidence as to A.A. ’ s medica l appointments in the light most fa vorable to the trial court ’ s find i ng und er subsection
161. 001(b ) (1)(O ), we con clude that t h e trial court cou l d have reaso nably formed a fi rm be li ef o r

co nviction tha t neither Mo ther, no r Father , n or any other “ person from [the] family that wil l be a primar y caretake r , ” such as Father ’ s parents, attended A.A. ’ s me dical appoint men t s , as required by the parents ’ se rv ice plans

.25 Upon consideri ng t he e ntire recor d , however, and w eig h ing t he disputed evidence contrary to the trial court ’ s finding

— including evidence on th e issu e of whether other fam ily
members att en de d A.A. ’ s medical appoi ntments , w e conclude that the cont rary evi dence is so signifi can t t h at the trial cou rt could not have reasonably formed a firm belie f or conviction that
Mother and Father failed to c omply with their ob ligations under the ir service plan s to attend
A.A. ’ s me dical appoi ntments

. T his is the o nly ba sis for non
- co mplianc e w i th the family

- se rvi ce plan that has be en asserted by the Department, and the record does not affir ma ti vely reveal any
other basis. Consequently , w e conclude that , al thou gh t he e vi dence i s le gally suffi cient , it is not
factua lly s uffic ient to support find ings that Mother and Fat h er f aile d to com ply with “ a court
ord er that specifically establish ed the actions necess ary for [ A.A. ’ s return ] ” and , consequently,
that terminati on of t heir p are n tal rights was warranted under subsect ion ( O).

S ubse ction (N) , C

onstructi ve A bandonm ent
F inally, we c onsider Mother ’ s and Father ’ s challenges to the trial court ’ s finding
under subsection (N) of Section 161. 001(b )(1)

. Subsecti on (N) pr o v ides t h at t he tr ia l court may order term i na tion of t h e parent

- c hild rela tio ns hi p if it f inds by c l e ar a nd conv incing ev idence that the paren t has con s truc tively ab and oned a child who h a s bee n in the perman ent or t e mporar y managing co nservatorsh i p of the D e part ment o f Family and Pro tecti ve Services for not l e ss than six mon th s, an d ( i ) th e D ep artment has ma d e rea sonable eff orts to return the ch ild to t he
p arent; (i i) the parent ha s not regul a rly v isited or m aintained conta ct wit h the child; and ( iii) t he
p a r e nt has de m ons trat e d an in ability t o p r ovide the c hi l d with a safe e n v ir on ment. See Tex

. Fam. Code § 1 61.001(b)(1)(N)

. O n appeal, Mother and Father a sse rt tha t the Department failed

t o meet its burden t o establish tha t (1) they have not regularly v i sit ed or mainta in ed con tact with26

A.A. and (2) they have d emonstr ated an ina bi l ity to provide a sa fe env i ron me nt for A.A. The Depar tment has not respond ed to the parents ’ arguments regardin g subsection (N).

The undi sputed evide n c e shows tha t , following A.A

. ’ s removal, Mother a nd
Fat her atte nded supervised vi si ts with A.A. , as r eq u ired by their f am ily

- service pl an s
. A lthough
Fa t her conceded t hat he missed four visits and M other ac knowledged missing at least some visits due to il l n e ss or hosp i talization , the Department did not p resent any evi dence as to wh at
p er centage of all vis it s Mother and Fathe r actually miss ed

. I n add ition , the trial cou rt heard that

at least on one occasion , the paren ts met with A.A. ’ s speech p athologist d u r i ng a super v ised visit
with A.A. to learn about A.A. ’ s feeding challenges and th at , as pr eviously di sc u ssed , th e parents
attended at le ast s o me of A.A. ’ s medical appo intments and visited A.A. when she was hosp i talized duri ng the pendency of thi s suit. View i n g the ev i dence in the li ght most favorable

to the findi ng o f constructive aba nd onment unde r subsec t io n (N), we conclude t hat a rea sonabl e factfinder could not have formed a firm b elief o r conviction th at Mothe r and Father have “ not

re gular ly visited o r maintained s ignificant cont act ” with A.A. during the pende ncy of th is suit.
Con seq uently, th e eviden c e is legal ly insuffici ent to support the trial co urt ’ s finding under subsection (N)

.

I n summary, based on the unique facts presented by the record in this case, w e have conclude d that the evidence is l egally insuffi cient t o suppor t ter mination of Fathe r ’ s
pare ntal rights under s ubsection (E) and subs ection ( N ) and that t he evidence is factual ly insufficient to support ter mination of Father ’ s pare ntal rights under s ubsection (O)

. As to Mother,
we have d etermin ed that the evidence i s leg ally insufficient to support termina tion under

s ubsection (N) and that t he evidence is fac tu ally insufficient to support termination under

s ub section (E) and subsection (O)

. B ecause the evidence is insufficient to support all of the27

st atutory predica te fi ndings on which the trial court reli ed , we will reverse that porti on of th e tr ia l

court ’ s termination order termina t ing Mother ’ s and F at her ’ s parental rights and re mand for a new
tri a l. W e need not decide F a ther ’ s and Mot he r ’ s rem aining challenge s to t he trial court ’ s best

interest finding

. See Tex. R. Ap p. P. 47.1

.

C onservat orsh ip F in ding

In a separate is sue, Mother an d Fath er challeng e the t rial court ’ s dec ision to
ap point the De p artment as A.A. ’ s man agi n g conservat or. 9 Spec ifical ly, Mother and F at her

c hallenge the trial court ’ s finding tha t appointm ent of Mother and Fath er as ma na ging

conservators or as join t managing conservators “ w ould n o t be in the best inte rest o f the
child b ecause the appo intment w o uld sign ifi cantly imp air th e child ’ s ph ysic al or emotional
de velopment. ”

“ The best inte rest of th e child shall always b e the pr im ary consideration of
the court in d etermining the issu es of c onservatorship [.] ” Tex. F am. C ode § 1 5 3.002

. When a
trial cou r t terminat es both par ents ’ rights to their chi ld , t he court must appoint “ a suitable ,

co mpetent ad ult, the Departm en t , o r a li ce ns ed child

- placing ag e ncy , as the child ’ s managing

conse rvator

. See id. § 161.207

. In ad diti on , inde p endent of a tri al court ’ s decision on a reques t
for termination , t he Te xas Family Code creates a rebut ta b le pr esump tion that it is in a child ’ s bes t inte re st for his parents to be name d as joint managing conserv ators. See i d

. § 15 3.131( b) ;
In re J. A.J. , 2 43 S.W.3d 6 11, 616 (Tex. 2007)

. To r ebut this presu mption , the cour t m ust find , as

9 T he Texas Supreme Co urt has recogni zed th at the t e rmination of par ental rig ht s a nd the appointm ent of the D epartment as managing conservator are two dis tinct issues , e ach of which must be i ndividually challenged on app eal. In re J.A .J. , 2 43 S

. W. 3d 6 11 , 615

- 17 (Tex. 2007)

.28

it did here, that ap p ointment of a parent or parents “ would s igni fi cantly i mp air the child ’ s phys ical or emotional development. ” T e x. F a m
. Code § 15 3 .1 31(a ).

C o n servat o rship decisions are govern ed b y a prepo nderance

- o f

- t he

- evidence

stan dard , which is less stringent than the clear

- and

- co nv incing

- e vid ence standard for d e cisio ns

o n t ermination of pa rental rights

. In re J.A.J. , 243 S.W.3 d at 616

. Likewi se, the sta ndard of
review for the appointment o f non
- paren t so le mana ging conservator i s les s str ingent tha n the
standard of review for terminatio n of parent rights. I d. We r ev iew a trial court ’ s decision regarding conservatorship f or a n abuse of disc retion

. Id. A trial court abuses it s discretion i f its
deci sion is arb i tra ry and unreaso nable

. Id.

A t t rial, the court h eard evidence concernin g Mothe r ’ s physical an d emot io na l
health and A.A. ’ s specialized medical needs and coul d have rea sonabl y inferred from th is
evide n ce that , in the absen ce of a n other proper ly traine d fami ly member be ing pre sent at all times, it would be unsa fe for Mother to care fo r A.A. In addi tion , th e factfinder heard evi dence that Father, who works at le ast tw e lve hours a day , would be u nav ailab l e most of the t i me to
assist Mothe r and t hat , a ltho ugh h is parent s l ive nea rby and have offered to h e lp with A.A. , at the
time o f tria l they were also carin g fu ll time f or N.A

. Fi nally , al though we have concluded that

t h e evidence regarding M other ’ s p o si t ive drug test a nd prior mistr e atment of J .A . does n ot

co n stitute cle ar and conv incing evidence of endangerment , we rec ognize tha t this evidence is
als o rele va nt to the iss ue of con s ervatorship. In re R.W. , No. 01

- 1 1

- 0002 3

- CV, 2011 Tex. App. LEXIS 4556, a t *12

- 14 (Tex. A pp
. — Houston [ 1s t Dist.] Ju ne 16, 2011 , no pe t.) (mem. op.) ( holding that evidence was factually i nsuffic ient to support finding that ter minati on w as in
childr en ’ s bes t interest but that trial court di d not a buse its discretion in appoi nting D epartm ent

as s ole managing co n servat or).29 Under the abu se
- of

- discre tion st andard an d the less stringent evid entiary st andard applicable to conservator ship, t h e trial court could ha ve reasonably concluded that appoi ntment
of Mothe r and Father as A.A. ’ s ma n aging c onser vat ors “ would sign i ficantly i mpair the c hild ’ s ph ysical or em ot ional development. ” See Tex. Fam. Code § 15 3 .1 31(a ). C onseq uently, the tri al

cou rt d id not abuse its dis cretion in appointing the D epartme nt , an d not the parents, as A.A. ’ s sole m anaging conserv ator. 10 See In r e J.A.J. , 243 S.W. 3d at 6 16 (explaini ng that “ [b]ecause
differen t sta ndar d s apply, evide ntiary review that re sults in a revers al o f a t ermination orde r may not y ield the same result fo r a co n servators hip appointment ” )

. We o v errule issue fi ve.

C ONCLUSION
We affi rm that p or tion o f the tria l court ’ s order app oint ing the Department as
p erman ent managing conserva tor of A.A. W e r ev er se that p ortion of t he trial court ’ s o rder
termin ating the pare ntal rights of F a ther to A.A. , r ender judgment deleting th ose portion s of the judgme nt r egardi ng s ub section s ( E) and (N) as to Father, and remand for a ne w trial as to
whet her termina tion of F a t her ’ s parental righ ts is warranted under s ubsection (O)

. See In re
J .O .A

. , 418 S.W.3d 625, 6 2 6 (Tex

. App.

— Am arillo 2009 , no pet.) ( not ing that remand for new
tri al is a pp r opriate when appellate court determines that evidence is factually insufficient to

su pport ter m i n ation) ; see also Tex. R. App. P. 47.1, 47.4

. W e also reverse that portion of th e trial court ’ s or de r te rminating the pare n tal right s of Mother , ren d er judg ment deleting the portion of the judgment r egardi ng s ubsection (N) as to Mother, and r emand the case to the

t rial court for a new trial a s to whet h e r termination of Mo ther ’ s parent a l rights is war ra nted u nder

10 The trial cour t retain s ju r i sdiction to modi fy a conservato rship order if it is in t h e child ’ s best interest , and the parent ’ s or child ’ s circums tances have materially and subst antially change d since th e order was render ed. I d. a t 6 17 (citing Tex. Fam . C ode § § 156.00 1 , .101)

.30

s ubsection ( E ) and subsectio n (O)

. See In re J .O .A. , 418 S.W.3d at 626

. W e instruct the
trial court to commence the trial no later than 180 day s after th e mand at e is issued by this Court.
S e e Tex. R. A pp. P. 28.4 (c)

.

_______________ ___________________ ________ Chari L. Kel ly, Justice
Be fo re Just ices Goodwin, T riana , a nd Ke l ly
A f fir m e d in P art; Reversed and Rendered in Part; Reversed an d Re m anded in P a rt Filed: April 30 , 2021