IN THE

TENTH COURT OF APPEALS

No. 10-08-00151-CV

IN THE INTEREST OF W.O., A CHILD

From the 85th District Court

Brazos County, Texas

Trial Court No. 07-001152-CV-85

MEMORANDUM OPINION

The parental rights of M.H. to her child, W.O., were terminated after a trial to the 

court. M.H. appeals. Because the trial court’s best interest finding is supported by 

legally and factually sufficient evidence, we affirm.

BACKGROUND

W.O. was born premature at 26 weeks gestation in January of 2007. He had 

respiratory and digestive problems. His parents were given accommodations at the 

nearby Ronald McDonald House, but they did not visit W.O. regularly. The hospital 

staff was concerned. They offered classes to train W.O.’s parents to take care of W.O.’s 

medical condition. They did not avail themselves of this training. W.O.’s parents left 

the Ronald McDonald House during the night one night. The Department of Family 
In the Interest of W.O. Page 2

and Protective Services soon became involved. The Department took custody of W.O. 

in late April of 2007. M.H., W.O.’s mother, never saw the child again.

In one issue, M.H. argues that the evidence was both legally and factually 

insufficient to support the trial court’s finding that it was in the child’s best interest to 

terminate M.H.’s parental rights. See TEX. FAM. CODE ANN. § 161.001(2) (Vernon Supp. 

2008). She generally argues that there were less restrictive means than termination to 

protect W.O. 

LEGAL AND FACTUAL SUFFICIENCY REVIEW

In conducting a legal sufficiency review in a parental termination case: 

[A] court should look at 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. To give appropriate 

deference to the factfinder's conclusion and the role of a court conducting 

a legal sufficiency review, looking at the evidence in the light most 

favorable to the judgment means that a reviewing court must assume that 

the factfinder resolved disputed facts in favor of its finding if a reasonable 

factfinder could do so. A corollary to this requirement is that a court 

should disregard all evidence that a reasonable factfinder could have 

disbelieved or found to be incredible. This does not mean that a court 

must disregard all evidence that does not support the finding. 

Disregarding undisputed facts that do not support the finding could skew 

the analysis of whether there is clear and convincing evidence. 

In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d 

256, 266 (Tex. 2002)) (emphasis in J.P.B.).

In a factual sufficiency review,

[A] court of appeals must give due consideration to evidence that the 

factfinder could reasonably have found to be clear and convincing. . . . 

[T]he inquiry must be "whether the evidence is such that a factfinder 

could reasonably form a firm belief or conviction about the truth of the 

State's allegations." A court of appeals should consider whether disputed 
In the Interest of W.O. Page 3

evidence is such that a reasonable factfinder could not have resolved that 

disputed evidence in favor of its finding. 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. 

In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 

2002)) (internal footnotes omitted) (alterations added).

BEST INTEREST

An extended number of factors have been considered by the courts in 

ascertaining the best interest of the child. Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 

1976). The list is by no means exhaustive, but does indicate a number of considerations 

which either have been or would appear to be pertinent. Id.; see In re C.H., 89 S.W.3d 17, 

27 (Tex. 2003). "[S]ome of the listed factors may be inapplicable to some cases, while 

other factors not listed may also be considered when appropriate." In re S.A.P., 169 

S.W.3d 685, 707 (Tex. App.—Waco 2005, no pet.); see C.H., 89 S.W.3d at 27.

Factors

We review the evidence in light of the Holley factors.

Desire of the Child

W.O. was only 15 months old at the time of trial and had been in foster care since 

his release from the hospital.

The Emotional and Physical Needs of the Child Now and in the Future

W.O. was born premature at 26 weeks gestation. At the time of trial, he was still 

classified as a medically fragile child. He has a “trach” tube for respiratory support. He 
In the Interest of W.O. Page 4

requires 24-hour care in case the tube becomes blocked. If blocked, the tube needs 

timely suctioning or W.O. will die. W.O. may need the trach tube for at least four years. 

W.O. also needed a “g-button” to assist with digestion. However, shortly before trial, 

the g-button was removed to evaluate W.O.’s ability to digest.

Danger to the Child Now and in the Future

Training sessions to take care of W.O.’s trach and g-button were offered to M.H. 

up until the point of W.O.’s removal. M.H. availed herself of none of the training 

classes. M.H.’s mother, Deborah, whom M.H. argues on appeal could have been a 

placement option rather than having M.H.’s parental rights terminated, did not take the 

training classes either. Further, M.H. was placed on deferred adjudication community 

supervision for injury to a child. M.H. kicked a 12 year old for apparently trying to lift 

up M.H.’s skirt. M.H. admitted that at the time of the offense she was “on stones. I was 

on pills. I was drinking...earlier that day, I smoked embalming fluid. I smoked weed. 

I had always smoked weed....” M.H. claims she is now drug and alcohol free. M.H.’s 

community supervision was revoked and she was, at the time of trial, still incarcerated 

in SAFP, a substance abuse felony program.

The Parental Abilities of the Individual Seeking Custody/ Programs Available to Assist the 

Individual to Promote the Best Interest of the Children

Training sessions to take care of W.O.’s trach and g-button were offered to M.H. 

M.H. availed herself of none of the training classes. M.H.’s mother did not take the 

training classes either. The opportunity to transport M.H. to and from the hospital was 

offered by the Department to M.H. M.H. did not take advantage of the opportunity. At 
In the Interest of W.O. Page 5

least once, when transportation to the hospital was scheduled, M.H. was not at home at 

the time of the scheduled pick up and could not be located. M.H. has been in jail and 

SAFP since May of 2007. She only recently began parenting classes while in SAFP. 

Plans for the Children by the Individual or by the Agency Seeking Custody

Two relatives of M.H. were given an opportunity to be considered for placement 

of W.O. One was his maternal grandmother, Deborah. One of her strengths was that 

she had an extended family willing to assist her in caring for W.O. But the Department 

decided she was not an appropriate placement because she did not take the required 

training classes to learn how take care of W.O. Further, Deborah had a history with the 

Department. Some of her own children had been removed from her care. M.H. was 

actually in foster care during a time in her life. Deborah also did not take her own 

blood pressure medication on a regular basis. The other relative withdrew her name 

from consideration. 

The foster parents were not going to be an option for permanent placement of 

W.O. They took care of other medically fragile children on a temporary basis and 

wanted to continue that course of action.

M.H. generalized her plans for W.O. She agreed that she could not do anything 

while she was in SAFP, but she stated, “I’m going to do something when I get out.” She 

said that when she got out, she would keep in contact with the judge and the 

Department’s case workers, she would do some training, and she would do everything 

possible to get her son. She also stated that her “baby brother” would help her with 
In the Interest of W.O. Page 6

W.O. M.H. also envisioned herself tending to all of W.O.’s necessities, taking him to the 

doctor, and participating in therapy with him.

Stability of the Home or Proposed Placement

M.H. has never had a home of her own. She has always lived with someone. 

She has never had a job. She never finished school. At the time of the trial, M.H. was in 

SAFP. She had been on deferred adjudication community supervision when her 

community supervision was revoked. She was placed in the county jail in May of 2007 

until there was an opening in SAFP. 

Acts or Omissions of the Parent Which May Indicate that the Existing Parent-Child 

Relationship is not a Proper One

As stated earlier, M.H. had been placed on deferred adjudication community 

supervision for injury to a child. She failed to complete a number of her conditions of 

community supervision, and within two years, her community supervision was 

revoked. She was again placed on community supervision but was required to attend 

SAFP and was placed in the Brazos County Jail until she could attend SAFP. This 

occurred four months after W.O. was born. At the time of the trial, M.H. remained 

incarcerated in SAFP.

M.H. had not sought prenatal care prior to W.O.’s birth. Training sessions to 

take care of W.O.’s trach and g-button were offered to M.H. up until the point of W.O.’s 

removal. M.H. availed herself of none of the training classes. The opportunity to 

transport M.H. to and from the hospital was offered to M.H by the Department. M.H. 

did not take advantage of the opportunity. 
In the Interest of W.O. Page 7

M.H.’s visits to W.O. were irregular and became more sporadic as time passed. 

M.H. resided at the Ronald McDonald House in order to be close to W.O. but she often 

slept all day and then, when she visited W.O., she visited at night. Often, staff at the 

hospital could not contact M.H. at the Ronald McDonald House. She eventually left the 

Ronald McDonald House during the night and did not return. Authorities at the 

Ronald McDonald House would have asked M.H. to leave for not following the rules of 

the residence had M.H. decided not to leave on her own. After leaving the Ronald 

McDonald House, M.H. moved back to Bryan, Texas. W.O. was hospitalized in Temple.

M.H. did not ask the Department to help her find creative ways to follow the 

service plan while she was in jail and SAFP. The Department has previously had 

incarcerated clients ask for help. At one point, M.H.’s mother told a case worker that 

M.H. was lazy and just stayed around the house. M.H. did not want to get a job. 

Further, M.H. had never had a job. M.H.’s mother also stated to the case worker that 

M.H. wants to do things her way. M.H. had shown no motivation to care for W.O. 

And, since the Department took conservatorship of W.O., M.H. has not seen the child. 

M.H.’s mother has custody of M.H.’s three-year old daughter.

Any Excuse for the Acts or Omissions of the Parent

M.H. testified that she took at least two of the classes to learn how to take care of 

W.O. She explained that she did not take any more classes because she lost her means 

of transportation. She also explained that she did not visit W.O. regularly after she 

moved back to Bryan because she did not have child care. Even though her mother had 

custody of her other child, she took care of her child when her mother was at work. 
In the Interest of W.O. Page 8

M.H. testified that she visited W.O. day and night, every day while M.H. resided at the 

Ronald McDonald House. She speculated that the nurses did not always account for 

when she visited W.O. She explained the night-time visits as times when she could not 

sleep. She further explained that she did not visit W.O. for two weeks because she had 

severe hemorrhoids and had high blood pressure. 

She also stated that she left the Ronald McDonald House on her own because 

W.O.’s father had left the residence the day before which left M.H. to take care of her 

other child. She could not visit W.O. while keeping the other child. 

M.H. stated that once she moved to Bryan, she called “constantly” to check on 

W.O. She also stated that she had no transportation to be able to visit W.O. 

M.H. acknowledged that it was her own fault she had not worked the 

Department’s plan—she violated her “probation” and went to jail. But, she felt that she 

had not been given a chance to prove herself able to take care of W.O.

Application

After looking at the evidence in the light most favorable to the trial court's 

finding that termination of M.H.’s parental rights was in the best interest of W.O., we 

hold that a reasonable trier of fact could have formed a firm belief or conviction that the 

finding was true. The evidence that termination was in the best interest of W.O. was 

legally sufficient.

After giving due consideration to evidence that the trial court could reasonably 

have found to be clear and convincing, we hold that the evidence was such that the trial 

court could reasonably form a firm belief or conviction that termination of M.H.’s 
In the Interest of W.O. Page 9

parental rights was in the best interest of W.O. The evidence that termination was in 

the best interest of W.O. was factually sufficient.

M.H.’s sole issue is overruled.

CONCLUSION

Because we have found the evidence sufficient to support the finding that 

termination is in the child's best interest, the trial court’s judgment is affirmed. 

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurs in the judgment with a note) *

Affirmed

Opinion delivered and filed December 23, 2008

[CV06]

* “(The Texas Supreme Court says that the review of “best interest” findings 

should include the factors listed in section 263.307 of the Family Code, in addition to the 

Holley factors. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (“There are several factors 

that should be taken into account when determining whether termination of parental 

rights is in the best interest of the child, including the stability of a proposed placement 

and the willingness of a child’s family to effect positive changes. TEX. FAM. CODE § 

263.307; Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976).)”; see also, e.g., In re T.N.F., 205 

S.W.3d 625, 632-34 (Tex. App.—Waco 2006, pet. denied) (applying and analyzing 

applicable section 263.307 factors). In spite of this clear direction, the majority ignores 

the Family Code. Applying all the applicable factors, I agree that the evidence is 

sufficient to support the finding, so I concur in the judgment.)”