R e versed and Rendered in Part and Affirmed in Part and M ajority and

Concurring Opinion s filed April 12 , 2022.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00590

- CV

IN THE INTEREST OF L .E.R., A CHILD

On Appeal from the 314th District Court

Harris Co unty, Texas Tr ial Court Cause No. 2018

- 03438J

M AJ O RITY OPINION
Appellant J.M.C. (“Mother”) appeals the trial court ’ s final order of termination of her parental rights to her child L.E.R. (“ Lori ”). 1 The trial court
terminated Mother ’ s parental rights on the predica te grounds of endangerment,
constructive a

bandonment , a nd failure to comply with the service plan for
reunification. See Tex. Fam. Code Ann. § 161.001(b)(1)( D ), ( N ), and (O). The
trial court also determined that termination of Mother ’ s parent al rights wa s in
Lori ’ s best interest. See id . § 16 1.001(b)(2). I n four issues, Mother challenges the

1 We use pseudonyms or initials to refer to the child, paren ts , a nd other family members involved in this case. See Tex . Fam. Code Ann. § 109.0 02(d); Tex. R. App. P. 9.8(b)(2).2

legal and factual sufficiency of the evidence to support the trial court ’ s finding s on the predicate ground s and the best interest fin di ng. We reve rse and render in part
and affirm in part

. B ACKGROUND This case began because the Department of Family and Protective Services (the “ Department ” ) received a referral on June 15, 2018
, alleg ing that during Lori ’ s delivery Mother was aggressive a nd erratic a nd a ssaulted nurses. The re ferral alleg ed that Mother had “ pressured speech
, ” “ d e monstrated poor impulse control, and delayed responses. ” 2 It alleged that Mother neither held Lori nor bond ed with
her since birth; and Mother ’ s primary care p hy s ician expre s sed concern about
Mother “ taking on the responsibility of c aring for an infant ch i ld without first receiving a psychological evaluation as soon as she delivered the child. ”

Because Moth e r was uncooperative during the investigation
, “ refuse d to participa t e i n ongoing CPS services
, ” and there w as concern for Lori ’ s safety, the Department filed an Original Peti tion f o r Protection of a Child for Conservatorship, and for Termination in Suit A ff ecting t he Parent

- Child
Rela tionship on June 21, 201 8

. The Depart m ent sought temporary managing conservatorship of Lori ; it also sought conservatorship and /or parental term ination
if reunification with Lori ’ s parents was not suitable. The trial court g ra nted the
D e partment m anaging conservatorship of Lori

. On July 7, 2 018 , L o ri was placed
with a foster parent , Mary

. After a full adversary hearing on J u ly 12, 2018 , the tr ial court appointed the
D e partment temporary managing conservator of L ori and fou nd , among other things, that (1) removal was in Lori ’ s b est interest ; (2 ) there is a “ continuing

2 While many of t he facts giving rise to this case appe a r to be conclusory
, we are limited to examining the arguments and objections made by Appellant a t the t rial cou rt and on appeal

.3

danger to the physical health or safety of the child and for the child to rema in in the home is contrary to the welfare of the child ; ” (3) “ reasonable efforts co nsistent
with the child ’ s health and safety have bee n made by the D epa rtment to prevent or eliminate the need for removal of the child ; ” and (4) “ appointment of the parent o r parents as managing conservator of the child is not in the best interest of the c hild because the appointment would significantly imp ai r the chil d ’ s ph ysical health or emotional development. ”
The Department filed a F amily Service Plan on August 3, 2018 , providing
the following service plan goals: Mother will (1) “ show the ability to p arent and protect her daughter ; ” (2) “ actively parti ci pate in ther a py to understand how her health can impact her current parenting style ; ” and (3) “ demonstr ate ability to

p rotect the child from harm

. ” The plan also set forth a list of tasks and service s Mother needed to complete:

• Participate in and comple te individual t her apy, and complete any

re commended family or group therapy;

• Cooperate with all tasks required by the a ge ncy;

• C omply with all visitation guidelines as arranged by the caseworker ;

• A ttend a ll court hearings, permanency conferences
, and sched ul ed family
vi s its ;

• Complete parenting classes;

• Maintain stable employment or income benefits for six months;

• Acquire and maintain stable housing for more than six months; housing must be safe, cle an , f

re e of hazards
, and it must have operating utilities;

• Pa rticipate in and complete a psycho

- social assessment and follow all4

recommendations which may include a psychiatric eva luation, individual therapy, family therapy, and/or group therapy ; and

• Participat e i n a psychological evaluation and follow all recomme nd ations
from t he service provi der

. After a status hearing on August 7, 2018, t h e trial court signed a n order finding, am ong other things, that (1) Mother had appeared in person and through her attorney a t the hearing; (2) Mother ’ s service plan is reasonab le ; (3) the go a l o f the service plan is to return Lori to Mother , and the plan adequately ensure s that
reasonable efforts are being made to enable Mother to provide a safe environment
for Lor i; ( 4) the pl an is reasonably tailored to address any specific is su es identifie d by the Department ; (5) Mother reviewed an d underst ood the service pl an, Mother
has been advised t h at unle ss she is willing and able to provide Lori with “ a safe environment, even with th e assistance of a service plan, within the reasonable

pe riod of time spe cified in the plan, her parental and custodial duties and rights may be subject to restriction or to te rmination or [ Lori ] may not be returned to her ; ” and (6) Mother signed the plan

. The trial court approved the servi ce plan and
made it a n order of t h e c ourt.

The D epartment filed a second service plan on September 10, 2018, expressing concerns that Mothe r had not started any of the requested services in
the first plan. Th e second pla n is identical to the first service plan except t hat i t added to the lis t of tasks and services that Mother was required to complete a psychiatric evaluation and to “ follow al l recommendations which may include a medicine regiment, individual therapy, f am i ly thera py, and/or group therapy. ”

O n June 13, 2019 , F at her executed an affidavit voluntarily relinquishing his parental rights to Lori

. On October 14, 2019, Mary (the foster parent) filed a
P et ition in Intervention in Suit Affecting the Parent

- Child Relationship
, request ing5

th at th e court (1 ) name her as Lo ri ’s sole or j oint managing conserv ator ; (2) grant her an order of adoption of Lori ; and (3) terminat e Mother ’ s and Father ’ s parental rights to L ori. Based on Father ’ s relinq uishment of parental rights, t he trial court sign ed an orde r terminating Father’s p arental righ ts t o Lori on January 26, 2021

. I n its August 25, 2021 permanency report to the court, the Department
recommended to the court tha t it be dismissed as t emporary m anaging c onservator of Lori and that the foster p are nt ad opt Lori. On Septembe r 10 , 2021, a benc h trial
was held to t erminate Mother ’ s parental rights.

F ive witnesses testified at trial: th e Department ’ s investigati on case worker Inger Smith (nee Barnaby), the Department ’ s conservatorship caseworker Lan a F ord
, C hild A dvocate s, Inc. re presen tative Bri ttany Swain, Lori ’ s f oster m other Mary, and Lori ’ s adult half

- sister Alexis . Even Father came to trial and was ready
to testif y. Mot her did not appear at trial, even though she was given the op tion to

appea r i n person or via Zoom

. Befo re any testimo ny , the trial court admit ted into
evidence , among other things, copies of the second family service plan
, Mother ’ s drug screening r esults, Smith ’ s affidavit
, the Child Advocates report, permanency reports, Mother ’ s psychological evaluation, a nd Mother ’ s ps ychi atric evaluation

. W e b e g i n w i t h a recitation of the testimony and evidence.

C aseworker Smith

Smith testified that she “ receiv ed an intake ” on June 15 , 2018 , for neglectful supervision of Lori , who was still i n the hospital at the time. T he referral i ncl uded allegations that M other was “ aggressive during delivery
, ” F ather “ denied that the
child was his and al so the mother ’ s beha vior was described as being just erratic
and that she was

. . . possibly using il lic it drugs. ” Smith testified t hat during h e r i nvestigation t he “ nur s ing staff said that [Mother] actually was kicking and assaulted the nurses during delivery. ” The nurses were concerned about how6

Mother “ treated the baby ” after she was born because Mot he r “ actually said she
wanted

— once the bab y wa s placed on her stoma c h during delivery, which is a normal practice, she stated to get the baby off her immediately. ” A nd a fte r Lori ’ s birth
, Mother did not bond with her.
Further, S mith ’ s investigation ( wh ich she a lso memorialized in a n affidavit )

c o nfi rm ed that Mother was v ery aggressive. “ There was a situation where during delivery she was kicking so much that her IV came ap art; and when the IV came apart, blood was gushing everywhere. ” The hospital sta ff told Smith that “ it was
abn or mal behavior for a person. They had n ever seen something like that. ” However, Mother denied “ be having erratically during the delivery of [Lor i] by physically assaulting the nurses. ” Mother told Smith that the nursing staf f d id not administer pain medi ca tion promptl y an d that the medicatio n was not administered
until af t er t he baby ’ s head w as ex posed during delivery. Mother claim ed “ s he was only re a ct ing to the pain

. ” Mother told Smith that when the nurse place d L ori on Mothe r ’ s chest, Mothe r was a fraid of droppin g Lor i because “ she felt numb, so she
d em anded the child be removed immediately. ”

Smith testified that she observed interactions between Mother and F a t her in
the hospital room. Smith described it as “ ki nd of an abusiv e s ituati on. [ Mother]

was s peaking to [ Fat he r] verbally in a way tha t, you know, you shouldn ’ t speak to

a person. They weren ’ t getting along very well. ” Smith ’ s investigatio n re vealed
that because of Mother ’ s beha vior, a n “ MAT ” evaluation was ord ered a ft er she
delivered Lori

. 3 Ac cording to t he eval uation, Mother “ d emons trat ed delays in

responses, poor focus , poor i mpul se control, delay in processing inform ation, and

poor atten tio n. ” S mith t estified that she spoke to Mot her ’ s nurse practitioner, who

3 Nothing in the record explains what an “ MAT evaluation ” is, why i t was ordered, un d er what authority it wa s order ed , or by wh o m it was performed.7

“ stated that before the c hild w ould ever b e ta ke n home, [she] recommende d t hat a psychiatric evalua t ion be done on ” M other.

After she spoke at the hospital with medical personnel , M oth er, and Father
, Smith visited the home in which Mother and Father lived. Smith testified that “ t he
hom e was not p r epa re d to receive a child. T he floor was missing. The a ir

con ditioning was not working. It was during the summertime so it was extremel y

w arm in the h ome. ”
On June 18, 2018, while Lori was still in the hospital, Smith contacted
Mother ’ s prim ary care ph y sic ia n to inquire whether he ha d any concerns regardi ng M other ’ s ability to care for Lori

. Mother ’ s physician recommended that she
should “ b e cleared by a psyc hiatrist , and receive a full psychiatric evaluation before being allowed to ca re for ” Lori. S mi th te stified that she contac ted Mother that same day to ask if Mother had a recommend ation regarding Lori ’ s plac ement because the Departm ent would not return L ori to h er or Father

. Mother
recommended her brother
, Steven , and sister

- in

- l aw , Sus an

. The D e p art me nt approved placement w ith Steven and Susan after c onducting a background check
for an y criminal history and CPS (Child Protective S e rv ices) history. When Smith

w ent to Mother ’ s and Father ’ s home on June 19, 2018, to have a meeting and

re view the p ap erw or

k, only Father was pres ent. Smith contacted Mothe r but
Mother refused to come home for the meeting and stated that “ she did not kno w

w hat she was going to do with ” Lori , she di d not want Steven and Susan to be
Lori ’ s caregivers , an d she w as thinkin g abo ut giving Lori up for ado ption

. The next day, Smith again co ntacted Mother about a relative placement for Lori but Mother yelled, scr eam ed, and stated she needed mo re time. Moth er stated
that she needed a couple of weeks before she coul d m ake a deci si on an d she would not sign an ything that would allow Lor i to be placed with relatives despite8

knowing the hospital intended to discharge L ori

. Lori was placed with Steven and
Sus a n b ut was shortly thereafter removed following an anonymou s call from a
rel at ive

. The relative was at a family function with Steven and Susan , and Susan
was intoxicated , and apparently told a sto ry to the crow d that earlier that morning
Lor i w as sleeping on Steven “ and during the time t he baby fell on the floor
, ” but
S teven did no t w ake up to notice that Lori was on the floor. Susan woke up and picked up Lori. While talking about the incident, Susan “ was laughing an d thought it was very fu nny that no one woke up t o see that the child wa s on the floor. ”
Smith t estifie d that the a non ymou s call er also told her that Steven and Susan kep t Lori “ in a n infant bathin g suit in the sweltering heat, w [ere ] pulling her up by her
arms and w [ere] just n ot appropriate with the care with the child. ”

As a result of the call, Sm ith spo ke to Mother an d testified that Mother
ad mitted knowing that Steven and Susan had a CPS his tory (but gave no f urther
de tails about Mother ’ s knowledge about the exten t of Steven ’ s and Susan ’ s history with CPS, and further testifi ed that the Departmen t did not previously f ind their CPS history because the earlier case wa s f il ed un der Susan ’ s maiden name , and
that the allegations behind the charges were unable to be determined )

. Smith

rem oved Lori from Steven ’ s and Susan ’ s home on J u ly 6, 2 018, and pla ced Lori the next day in foster mothe r Mary ’ s care. Lori lived w ith Mary since her removal
and was still in her care at trial.

Smith testified th at she investigated other possibl e family pla ceme nts

. Father had a 19

- year

- old son who had simila r hea lth iss ues as Fa ther; and th e only other per son Mother recommended for L ori ’ s placement did not pass CPS background checks. Smith testified that during the time she was assigned to the case, Mother was no t cooperative and Smith never found the pare nts ’ ho me to b e safe or sta ble

. Alt h ough Smith could n ot recall if Mother had prior CPS his tor y,9

Smith testified that Mother had APS (Ad ult Protective Services) history for allegedly attacking Father.

Caseworker Ford

Ford , who was the caseworker as signed t o the c a se aft er Lori w as placed
wi t h Mary
, testified at trial and requested on behalf of t he Department that the trial

court terminate Mother ’ s parental right s on grounds of endangerment, constructive

a bandonment , a nd failure to comply with the service pl an for r eu nifi cation an d in
the bes t interest of Lori

. Ford explained why she believed tha t M other had endangered Lori . Ford testified that Mother has a tendency to be violent and Ford is concerned about the safety in the home

. Ford re ceived several rep orts of
do mest ic violen ce in the h o m e and there have b een “ a lot of calls to law
enforcemen t t o [t he] home ” as recent ly as August 24, 2021

. 4 According to Ford,
Father has told her that M o ther is violent. Every month
, Father expresse d concern in con v er sat ions wi th F or d about M o ther ’ s state of mind, his safety, and the safety
of Lori because he did no t t hink M o ther could care for Lori. Fathe r has repeatedly tried to get Mother to leave his home and even called APS to “ get some relief from
her abusive behav ior
, ” b ut M ot h er refuse d to leave.

F ord testifie d that sh e had discuss ions w ith Mothe r about “ her violent

nature ” but Mother was unreceptiv e to Ford ’ s efforts to try to find a solution. Every time Ford offered Mother another place to live, she refused. F or exam ple
, F o rd offere d Mo ther a p l ace in a shelter at w hich she would “ work programs ” and
th e n “ have her own place
, ” but M o ther refused

. Ford testified that it is very hard
for her to work with M other because
, if Mother does not get or hear what she

wan ts , “ sh e ’ s ve r y aggress ive with [Fo r d] and then at that t ime, she ’ ll stop talking

to [Ford]. ” Mo ther only call ed Ford when she wa s upset w ith Father

. Mot h e r

4 T he t rial date below was September 10, 2021.10

would claim that Father w as harming her and that she wa s afraid for her lif e, but
when Ford asked Mother to mo v e out so she can be i n a safe environment
, Mother
did not want to leave.

Ford be lie ved tha t an unsafe home endangered Lori. Ford was also
concerned abo ut Mother ’ s lack of vi sitation with Lori a nd Mother ’ s behavior
d uring the visits she act uall y j oined. Mother w ould get ups et with Lori during
fa ce

- to

- face visits a nd wou ld just walk away, leave, and not attend to Lori ’ s needs.
Ford testified that Mot her was “ involved with [ Lori ] only when she f e [lt] that [Lori] is attentive to her; ” otherw ise, Mo th er would leave

. Ford testi fied that Moth er never stated she wanted to see L ori. It was Father
who always “ made sure and scheduled all ” the visits with Lori “ a nd Mother would show up and then when [Fat her] relinquished , [Ford] would contact [Mothe r]
dire ct ly ”
, but Mothe r would say she needed to talk to Father “ to see when was a

g ood time and then afterwards she just stopped responding to ” Ford. Ford testifi ed
that she had Z oom meetings with Mother fro m March 2020 to August 2020, when
Mot her “ sto pp e d par ticipating. ” Ford stated t hat Mo ther ’ s last visi t was on August 27, 2020, b ut M o ther did not show her face or respond. Thereaf ter , Ford called
Mother ev ery month to try to schedule a visit, but Mot her never called back or ever showed any interes t in see ing Lori. Ford further tes tified that Mother never made a child suppo rt payment to Mary ; Mother only gave a stuffed animal to Lori and two
outfits that w ere too small.

Ford expressed concern that Mo ther failed to comply with the tasks,
servi ces, and goal s set forth in t he service p lan For d dra fted for Mother

. Ford
testifie d t hat Mother signed and received a copy of the service plan

. Mother completed a psychological evaluation , a psychiatric evaluation, parenting classes,
and ind ividual ther apy ; she also showed Ford a d isability re ward le tter to prove11

stable inc ome. However, Mother neither complete d ad dition al therapy in June
2020 nor family therapy as required by her service plan

. Ford testified that Mother
and Father “ coul d no t even start that service because of the arguing with in the
home. ” Ford stated t hat she t old Mother at a permanency hearing t hat Mother should complete additional therapy

. Mother was required to provide stab le housing bu t failed to do so

. F ord testified that , in ad ditio n to not com pleting the required tas ks, Mot her did not achieve the goals of the service plan and (in her opinion) could not “ provide for the ongoing safety a nd we ll

- being of ” Lori

. Ford testified that she discussed every ite m on the service p lan wi th Mother

. She could not “ put a number on ” how ma ny times she discussed the plan with Mother, but stated that every time she spoke to Mot her, she would “ definitely go

o ver the plan ” with her. Ford stated that she spoke to Mothe r a t least twice a

mo nth

. Fo rd also offer ed to meet with Mother e very month

. Mother last responded to Ford ’ s request to mee t in August 2021, stating she ha d a sto mach bug
and that she was “ a lit tle upset b ecause a good friend of mine has cancer and she

pass ed away. ” Ford cl aim ed th at Mo ther ’ s s tate ments sounde d like a n ex cuse to not meet with Ford.

Ford expressed concern that Mother was not taking her Xanax prescription regular ly, causing her to become “ quite agitated, ” anxious, and very aggressive.
Ford testified that Mother to ld her Mother h ad bee n dia gnose d with Hunti ngton ’ s disease ; Huntington ’ s disease 5 does not have a cure and i s p rogre ssive in nature

.

5 “ Huntington ’ s disease is a rare, inherited dis ease t hat causes the progr essive breakdo wn (degeneration) of nerve cells in the brain

. Huntington ’ s disease has a broad impact on a person ’ s f unctional abilities and usually results in movement, thinking (cognitive) and psychiatric disorders. ” h ttps://www.may oclinic.org/diseases

- cond it i ons/huntingtons

- disease/symptoms

causes/syc

- 20356117

. “ No treatments can alter the course of Huntington ’ s disease. B ut medications can l essen some sym ptoms of movement and psychiatri c disorders. And multiple in terventions can help a person adapt to ch a nges in his or her abilities for a certain amount of time. ” https://www.mayoclinic .org/diseases

- conditions/huntingtons

- disease/ diagnosis

-12

Mother was also dia gnosed with adjustment disorder with anxiety

. With regard t o Lori ’ s life s ince her placement with Mary , Ford testifie d that
Lori was “ r eally f

lou rishing

. ” Ford stated Lori is in pre

- ki n dergarten, sh e is active
and friendly , s he is learning how to swim and speak Spani sh, she has “ a very good routine, ” and she is “ very much ” bond ed with Mary and Mary ’ s fami ly

. Lori also
visits with her ha lf

- sist er and hal f

- brother

— Mother raised neither of her two other
children , and Lori ’ s half

- si blings and Mother ’ s family desire for Lori to remain with Mary. Ford testified that Lori would not main tain a relationship wit h her half

siblin gs if she were t o be retur ne d to Mo ther because Mother does not have a relationship with her children an d her fa mily. Ford also stated that Mary has a

st able job and provides for Lori ’ s emotional needs

. Ford confirmed that it is also
Fath er ’ s desire for Lor i to remain with Mary.

Chi l d Ad vocates Representative S wain

Swain test ified that Child Adv ocates has been involved in Lori ’ s case si nce August 201 8 , and s he is the child advocate for Lori

. Swa in stat ed that terminat ion
of M o ther ’ s par ental rights would be in Lori ’ s bes t interest b ec au se : Lori is in a

s a fe and stable enviro nment ; Lori ’ s placement with Mary “ has been meeting all of
her needs, not just basic
, [but] exceeding her needs ” ; Lori is e xtremel y happy and her life is structured; there is no domest ic violence in M ary ’ s home; M a ry ’ s home is well kept; Lori is “

just very happy and she ’ s thriving; ” Lori recognizes Mary as her family ; Lori has made “ heal thy developmen tal progress ” in M ary ’ s ca re ; and
there is a bond between Lori and M ary

. Swain testifi ed that she has no
reservat i on s about Mary and her family . According to Swain, Mary pla ns to adopt
Lori whi ch is in Lori ’ s best inter est

.

treatment/drc

- 2 0356122

.13

Foster Mother M

ary Mary te stified that Lori has lived w ith he r for most of Lori ’ s life and that she plans to adopt Lori if the cour t terminate s M ot h e r ’ s parental rights. Mar y stated
that she developed relationships with Lori ’ s bi ological family, in particular with
Lor i ’ s half

- siblings, Alexis and Stan, and L ori ’ s s tep

- grandmother (M o ther ’ s stepmothe r who helped raise Mother). Mary t estified tha t Mo ther has not had any
visitation wi th Lori in well over a year and asked the court to terminate Mot her ’ s parental rights. Half

- sister A lex is
Finally, Alexis te stified at trial that it would be in Lor i ’ s be s t interest to

term inate Mother ’ s p arental rig h ts b ecause Mother “ is abusive and n egl ectful so

— which is not a good environmen t for children and I ’ ve seen [Mary] with L [ori] and she is a g ood environment. ” Al exis explained that s he had been raised by her

gr andparents , a lth ough M o ther “ was technically the re

. ” According to Alexis,
Moth er “ just didn ’ t seem very interested unless, you know, it was

— she was trying to make a statement somehow

. ” It was her grandp arents who provided
Alexis emot ional and finan c ial support. Alex is di d not belie ve that Lori wou ld be
safe if she were to be re tur ned to Mother. Based on past experience w ith Mary
, Alexis believed that she w ould have a positive rela tionship with Lori if the court

ter minates Mo ther ’ s parental rights. Alexis was doubtf ul that she woul d continue

t o ha ve a positive relationship wit h L ori if Lori were to live with Mother. Ale xis
also mentioned that M o ther wanted to move in with Alexis s o Alexis could take

c are of both Mother and Lori, but Alexis made cl ear she did not “ wa nt to do that ”
b ecause she “ live d with [Mother] enough

. ”

On Se pte mber 28, 20 21 , the trial court signed a F i nal Decree for Termination, finding by clear and convincing ev idence that terminati on of14

Mother ’ s parental rights was in Lo ri ’ s be st interest and war ranted under thr ee subsectio ns o f section 161.001(b)(1 ) of the Fa mily Code : (D) (endangerment by
envi r onme nt), (N) (constructive abandonment), and (O) (failure to compl y with

court

- ordered plan for reunification with the child )

. See Te x. Fam. Code Ann. § 161.001(b)(1)( D ), ( N ), and (O). The trial court appointed th e D epartment as Lori ’ s sole managing conserva tor. Mother filed a timely app eal.

A NALYSIS

Parent al rights can be termina ted upo n proof by clear and convincing
evidence that ( 1) the parent has c ommitted an act prohibited b y se ction 161.001(b)(1); and (2) t erm ination is in the best interest of the chi ld

. Tex. Fam. Code Ann. § 161.001(b)(1), (2) ; In re J.O.A. , 2 83 S.W.3d 336, 344 (T ex. 2009).
Mother raises four issues on appea l, challeng ing the le gal and factual sufficiency of

t he evidence support ing the tri al court ’ s (1) finding s under sections
161.00 1(b )(1)(D) , (N) , and (O) ; and (2) best interest findi ng.
I. St andards of Revi ew

Inv oluntary termination of parental rights is a se rious matter implic ating
fundamenta l constituti onal rights. Holick v. Smith , 685 S. W.2d 18, 20 (Tex. 1985);
In re J.E.M.M. , 5 32 S.W.3d 874, 879 (Tex. App.

— Houston [14th Di st.] 20 17, no

pe t.). However, a chil d ’ s emotional and physical interests sho uld not be sacrificed to p reserve parental rights. In re C.H. , 89 S.W.3d 17, 26 (Tex. 2 002 ).

Du e to the severity and permanency of t he termination of parental rights, the law imposes a heightene d burden of pro of, re quiring clear and convincing
evidence. See Tex . Fam. Code Ann. § 161.001; In re J .F.C. , 96 S. W.3d 256, 265

- 66 (Tex. 2002). “ Cl ear and convincing ” means “ the measure or deg ree of proof that will produce in the m ind of the tri er of fac t a firm belief or co nviction as to the15

truth of the allegati ons sou ght to be establish ed.” Tex. Fam. Code Ann. § 101. 007. This heightened burden of pr oof results in heightened standards of rev iew for evidentiary sufficiency. In re V.A. , 598 S.W .3d 317, 327 (Tex. App.

— Housto n [14th Dist.] 2020, pet. denied ). For a le gal suf ficiency challenge, we consider all
of the evid ence in the light most favorable t o t he finding to determine whether a
reasonab le fact finder could have formed a firm belief or conv icti on th at its finding

was tr ue. In re J.F.C. , 96 S.W.3d at 266

. We assume the fact finder res olved disputed f

acts in favo r of its finding if a reasonable f act finder could do so, and we disregard all c ont roverting evidence a reasonable fact fin der could d isbelieve

. Id

. For a fa ctual sufficiency challenge, we consider a nd w eigh al l the evidence,
inc luding disputed or conflicti ng evidence, to determine whether a r easonable
fact finder could have formed a f irm belief or conviction that its finding was true.
In re C.H

. , 89 S.W.3d at 25. We examine whether disputed evidence is such th at a reasonable fac t finder could no t have resol ved that dispute in favor of its f ind ing.
Id

. The fact finder is the sole arbit er when assessing the credibility and
demea nor of wit nesses. In re A.B. , 437 S.W.3 d 498, 503 (Tex. 2014). “We may

not sec ond

- gue ss the fact finder ’ s resolution of a factual di s pute by relying on disputed eviden ce or evidence the fact finder ‘could easily hav e rejected as not credible.’ ” In re V.A. , 598 S.W .3d at 32 8 (quoting In r e L.M. I. , 119 S.W.3d 707, 712 (Tex. 2003) ).

II

. Predi cate Findings

The t rial court made predicate t e rmination findings pursuant to Tex as Family Code section 161.001(b)(1)(D), ( N ), an d (O). In her first , second , and third issues, Mo ther chal lenges the lega l and factual sufficiency of the evidence to16

s upport the trial court ’ s f

inding s on the se predicate g round s

. Only one predicate find ing under section 161.001(b)(1) is necessary to support a judgment of termination when there also is a find ing that termina tion is
in the child ’ s best interest. S ee In re A.V

. , 113 S.W.3d 355, 362 (Tex. 2003) ; In re
V.A. , 598 S.W.3d at 327. D ue pro cess requires that when a parent has raise d t he issue of insufficiency of the evidence to suppo rt the tr ial court ’ s findi ngs under section 161.001(b)(1)(D) or (E) of the Fa mily Code, an appellate cou r t must address o ne of those endangerment findings to ens ure a meaningful appeal. In re
N.G. , 577 S.W .3d 230, 235 (Tex. 2019) (per curiam) ; In re P.W. , 579 S.W.3d 7 13, 720 ( Tex. App.

— Houston [1 4th Dist.] 2019, no pet.). Due process a nd due

course

- of

- law requirements a l so mandate th at an appellat e court detail its analys is for an appeal of termination of parental r igh ts under section 161.001(b)(1)(D) or (E) of the Fa mily Code

. In re P.W. , 579 S .W.3d at 720. In this case , Mot h er chall enges t he trial court ’ s finding of end angerment ; w e , therefore, address the trial

court ’ s e ndangerment finding under section 161.001( b)( 1)(D)

. A. Predicate Fin ding under Section 161.001(b)(1)(D)

In her first issue, Mo t h e r challenges the legal and fa ctual suf ficienc y of the evidence to support the trial cou rt ’ s finding o f endangerment under subs ection D.

Termina tion under subsection D requires clear and convincing evidence that the parent “knowingl y placed or knowingl y allowed the child to remain in
conditio ns or s urroundings which endanger t he physical or e motional wel l

- being of the child.” Te x. Fam. Code Ann. § 161. 001(b)(1)(D). “Endanger” means to expose a child to loss or injury or to jeopardize a child ’ s emotional or physical
health. See In r e M.C. , 917 S. W.2d 26 8, 269 (Tex. 19 96) (per curi am) ; In r e V.A. , 598 S.W .3d at 328

. Endangerment encom passes “more than a threat of metaphysical injury or the possible ill effects of a less

- than

- ideal family17

environme nt,” but i t is not necessary that the conduct was d irected at the child or
that the ch ild actua lly suf fered injury

. In re M.C. , 917 S.W.2d at 269. Endangerment under subsection D focuses on evidence related to the child ’ s environment
, i.e. , the acceptability of li ving conditions as well as the parent ’ s

c onduct in the home

. In re C.W.M.P. , No. 14

- 20

- 0057 1

- CV, 2021 W L 244865 , at *5 (Tex. App.

— H ouston [14th Dist.] Jan. 26, 2021, pet. denied) (mem. op.) ; In re
S.R. , 452 S.W.3d 351, 360 (Tex. App.

— H ouston [14th Dist.] 2014, pet. denied). A
chil d is endangere d when the environment creates a po tential f or dang er and the

p arent is aware of the danger yet consciously disregards it. In re V.A. , 598 S.W.3d
at 32 8

. Inappropriate, abusive, or unlawful con duct by a parent or other persons
who live in t he child ’ s hom e can c rea te an environment that en dangers t he phys ical

or emot ional well

- being of a child a s required for termination und er subsection D

. In re C.W.M.P. , 2021 WL 244865 , at *5 ; In re S.R. , 452 S.W.3d at 360.

Par ental rights may be termina ted under subs ection D based on a single act

or o mission. In re C.W.M.P. , 20 21 WL 244865 , at *5 ; In re V.A

. , 598 S.W.3d at 32 9

. In eval uating endangerment under subsection D, the court has to consider the
ch ild ’ s environment be fore the Department obtaine d custody

. In re C.W .M.P. , 2021 WL 244865 , at * 6 ; In re V .A. , 59 8 S.W.3d at 32 9

. Subsecti on D is not a ba sis for termination of parenta l rights if the parent was unaware of the endangering
environment. In r e V.A. , 598 S.W.3d a t 32 9

. There must be clear and convincin g evide nce of endangerment a s well as of the parent ’ s awareness of the endangering
envir onmen t. Id

. Mother conte nds t he judgment of the trial court terminating her parental rights under subsecti on D should be rever sed because Lori was never in M o ther ’ s
po ssessio n and was removed from Mothe r and Fat her at the time of birth while still in the hospi tal. Mother argues that t he “ relevant time frame in a subsection ( D )18

case to determine whether there is clear and convinc ing evidence of endangermen t is before ” a child ’ s removal by the Department

. Therefo re, Mot her ar gues,

“ [ b ] ecause Lori w as never in M other’s custody, it stands to reason that she could not have been responsible for knowingly placing or knowingly allowing the child
to remain in cond itions or surr ounding s which endangered the child ’s physic al or

e motional hea lth. ”
The Department counters that the trial court ’ s finding that Mother ’ s parental rights to Lori should be terminated under subse ction D is supported by le g a lly and factually s u fficient evid ence

. In particular , the D e partmen t points to the following

e v i d e n c e in support of its conte ntion: (1) Mother assaulted nurses during Lori ’ s delivery and jumped in the hospital bed w hich caused her IV to be dislod ged; (2)
Mother did not bon d with Lor i; (3) F ather denied p aternity and stat ed he wou ld

comm it suicide i f he lost his eye sight com pletely; (4) Mother did not eat a healthy
d iet during pregnancy and did not receive prenatal ca re; (5) Mother recommended pla cing Lori with relatives w h o had CPS history; (6) there was domestic violenc e in Moth er ’ s an d Father ’ s h ome; (7) the home was in disrepa ir , had a broken refrigerator and A/C and was thus unfit for a child ; (8) Mother had ab and oned her previous two children ; (9) Mother had health iss ues like H untingto n ’ s disease; (10) family member s repo rte d Mothe r was abusiv e and manipulative and none of her

“ ext ended family recommended that she maintain her parental right s to Lori ; ” and (11) M other did nothing to provide a safe environment for Lori as require d by the service plan

. We agree wi th Mo ther that there is legally i nsufficient evidence to support
th e trial court ’ s finding under subsection D. To begin with, Mother assaulting

nurses , ju mping on t he bed
, eating a n un healthy diet
, not receiving prenatal care ,

an d abandoning her two other chil dren as w ell as Mother ’ s fa ilure to bond with19

Lori and Father ’ s denial of paternity or threat o f suici de is not evidence of abusive
or unlawful conduc t that created a dangerous e nvironment in which Lori liv ed or
remai ned. Mo ther ’ s recommendatio n to place Lori with relat ives who h ad CPS history does not constitute ev idence that Mother k nowingly placed or knowingly allowed Lori to remain in a dangerous e nvironment because Lori was in the Department ’ s care

. I t is the Departm ent ’ s responsibility t o conduct competent b ackgro und checks a nd find any relevant CPS history to ensu r e appropriate placement of a child it removes from its natural parents

. Additionally, ther e wa s no evi d ence that Steven and Susan actuall y had a CPS history
, nor any evidence
that it was substa nti ated. This type o f inference

- upon

- inference does not rise to the level of clear and convincing evidence that can support a determination that a parent has enga ged in the conduct de scribe d in Famil y Code sectio n 161.0 01(b)(1)( D).
Further, domestic violence in Mo ther ’ s and F ather ’ s home , Mother ’ s health
issues
, the home being in disrepa ir
, Mother being abusive and not providing a safe environment per her service p lan, and her ext ended famil y not r eco mmend ing she
maintai n her parental right s to Lori is not ev idence in support of a finding under
subsectio n D. Lori was never in Mother ’ s home or care ; Lori never lived with
Mother . Therefore, Mother never placed or al lowed Lori to remain in con ditions

or surroundings which endanger ed Lori ’ s physical or emotional well

- being as

re q uired by subsection D. We conclude th e evidence is legally insuf ficient t o support the trial court ’ s finding that Mother engaged in the c ondu ct described in Family Code sectio n 1 61.001(b)(1)( D).

Acc ordingl y, we sustain Mother ’ s first iss ue on legal insuf f iciency and do not need to reach the question of factual insuffic iency.

B. Pr edicate Fin ding under Section 161.001(b)(1)( N )20

In her second issue, Mot h e r challenges the legal and fa ctu al sufficiency of
th e evidence to support the trial court ’ s findi ng of const r uctive abandonment under
subsection N

. Termina tion under subsec tion N re quires clear and convincing evidence that the parent has const ructiv ely abandoned the child who has be en in the permanent

or temporary managing conservatorship of t he Dep artment for not less than six

m on ths , and (1) the department has made reasona ble effo r ts to return the child to

t he parent; ( 2 ) the parent has not regular ly visited or maintained si gnifica nt contact with the chi ld; and ( 3 ) the parent has demons trated an in ability to p rovide the chil d
wit h a safe environment

. T ex. Fam. Code Ann. § 161. 0 01(b)(1)( N ). The first element focuses on the Department ’ s conduct; the seco nd and third elements foc us
on t he parent ’ s conduct. In re A.L.H. , 468 S.W.3d 738, 744 (Te x. App.

— Hou ston [14th D ist.] 2015, no pet.).

Mo ther does not challenge the sufficiency of the e vidence to support the finding that (1) Lori was in the Department ’ s care for more than six mon ths ; (2 )
Mother has not regula rly visit ed or ma intain ed signific ant contact with Lori; and (3) Mother has demonstrated an inability to provide Lori with a safe e nvironment. Therefore, we will focus on Mother ’ s argument that “ the first element of the (N)

g round w as not met b ecause it w as not supported by the evidence i n the recor d and

was n o t proven by clear and convincing evidence. ” In that regard, Moth er states :

“ Smith testified that she visited Mother’s home and that it was no t suitable for a
child but no te st imony was offered about the reasonable effo rts to place t he child in
her home. Ford testified that she spoke to Mother about moving to another p lace
but Mother was not receptive to moving

. This testimony is at best [] wea k and does
not rise to the le vel o f clear and convincing. ”

Under the first element, returni ng a child to a parent under section21

161.001 (b)(1)(N)(i) does not necessarily mean that the child must be physically delivered to the parent. In re A.M.T. , No. 14

- 1 8

- 01084

- CV, 2019 WL 2097541 , at

* 4 (Tex. App.

— Houston [14 th Dist.] May 14, 2019, pet. denie d) (mem. op .)

. Impleme n tation of a family servic e plan by the Department is considered a
reasonab le effort to return a child to its parent. Id .; In re A.L.H. , 468 S .W.3d at 744; In re K.G. , 3 50 S. W. 3d 338, 354 (Tex. App.

— Fort Worth 2011, pet. denied).
A f amily servi ce plan is d esigned to reunify a parent with a child who has been removed by the Depar tment. In re A.M.T. , 2019 WL 2097541, at * 4. A service plan must, among other things, (1) be speci fi c; (2) state the goal o f the plan, which may be the retur n of the ch ild to the c hild ’ s parents; and (3) state the actions and responsibilities ne cessary f or the child ’ s paren ts to take to achieve the plan goal.
Id .; s ee a lso Tex. Fam. Code Ann. § 2 63.10 2.
In this case, Ford cr eated a service plan for Mo ther wh ich require d Mot h e r
to (1) complete individual therapy and any recommended family or gro up therap y; (2) c ooperate with all tasks required by the agency; (3) c omply w ith all visitation guidelin es as a rranged by the casework er; (4) a ttend all court h earings,

permanency conference s , and scheduled family visits; (5) c omplete parenting classes; (6 ) m aintai n stable employment or income benefits for six months; (7)

a cquire a nd maintain stable and safe hous in g ; (8) c omplete a psych o

- social
assessment and follow all recommenda tions
, incl u d ing individua l and family therapy ; and (9) p articipate in a psyc hological evaluation and follow all recommendations from the service provider

. The record reflects a sta tus h ea ring order signed by th e trial court on Aug ust
7 , 2018 , i n which the court foun d that (1) Mother had appeared in person and through her attorney a t the he aring; (2) Mother ’ s service plan is reasonable ; (3) the goal of the service plan is to return L ori t o Mother , and the plan ad equately ensure s22

that reasonable e fforts are being made t o enable Mother to provide a safe
environment for Lor i; ( 4) the p l an is re asonably tailored to address any specific issues identified by the D epartment ; (5) Mother revie wed a n d underst ood the
service pl an, Mother has been advised t h a t unless sh e is willin g and able to provide
Lori with “ a safe environment, even with th e assistan ce of a service plan, within
the reasonable period of time specified in the plan, her parental and c us todial duties and right s may be subject to restriction or to termina tion or [ Lo r i ] may not be returned to her ; ” and (6) Mother signed the plan

. The trial court approved the
servi ce plan and made it an order of the court.

The record reflect s that Fo rd cr ea ted a nd filed a second service plan on September 10, 2018 , which was identical t o the first service plan except t hat it
added to the list of task s and ser vices that Mother was required to complete a psychiatric evaluation and to “ follow all recommen datio ns which may include a

me dicine regiment, individual therap y, f am ily t hera py, and / or group therapy. ” This service plan was admitted into evidence at trial
, and Ford testif ied that Mother
had received and signed the second s ervice plan. Ford te s tifie d tha t she discussed every ite m on the service plan with Mother

. Ford coul d not “ put a number on ” how many times she discussed the plan with Mother, bu t stated that every time she spoke to Mot her, she would “ definitely go over t he plan ” with Mother . Ford stat ed that she spoke to Moth e r at least twice a month and also offered to meet with
M other e very month

. Ford also offered Mother help to find stable and safe housing . For ex ample, Ford offered Mother a place in a shelter at which she would “w ork progr ams” and then “have her own pl ace,” but Mother refused. Ford st at ed she wa s concern ed
that Mo ther fai led to comply with the tasks, services, and goals set forth in the service plan she drafted for Mother

. According to Ford
, Mot her failed to comp lete23

fami ly th erapy and ad dition al indi vidual therapy as required by her service pla n

. Ford te s tified tha t she t old Mother at a permanency hearing t hat Mother should complete additional therapy
, a nd Mother acknowledged “ that she was told from a psychiatri st but sh e was not going to do it. ”
By implementing a family service p lan and rev iewing the p lan and the

con sequences of failure to comply with the plan, the Department met its burden regarding the first element. Thus, w e conclude a r easonable fact find er could have
formed a firm belief or c onviction that the Department made reasonable efforts to

return Lori to Mother. Accordingly, we ov errule Mother ’ s second issue.

C. Predicate Fin ding under Section 161.001(b)(1)( O )

In her thi rd issue, M other contends tha t the evi dence is le g a lly and factually
insufficient to support terminati on under s e ction 161.0 0 1(b)(1)(O) , which requires

a fact finder to find by clear and convincing evidence that the parent has failed to comply wi th th e provisio ns of a court order that specifica lly e stablished the actions

ne cessary for the parent to obtain t he return o f the child who has been in the permanent or temporary managing conservatorsh ip of the Department for n ot less
th an nine month s as a result of the child ’ s removal from the parent un der C hapter
262 for the abuse or neglect of the child

. See T ex. Fam. Code Ann. §
161. 001( b ) (1)(O)

. However, d espite Mother ’ s statement , she does not challenge the evidence supporting the trial court ’ s predicate finding. Instead, M ot her conte nds that a
prepo nderance of the evidence demon strates s he was unable, throu gh no fault of
h er own, to c omplete the service plan because o f “ a mental health disorder and an
abusive home

. ” That contention is an invocation of the stat utory defense to termina tion under subse ction O, codified in section 1 6 1.001(d). See id

. §
161. 001 ( d )

. The Texas Family Code establishes a single affirmative defense to24

termination for failure to comply with a court order:
A court may not order termination under Subs ection (b)( 1)(O) base d on t he failure by the parent to co mply with a specific provisio n of a court ord er if a par e nt proves by a preponderance of evidence that: (1) the parent was unable to comply with specific provisions of the court order; and (2) the pa rent made a good fait h effo rt to comply with the order

an d the failure to comply with the order is not attributab l e to any fault of the parent. Id

. The record before us supports the tr i a l court ’ s conclusion in its final
termination decre e that Mot her fai led to rais e a statut ory de fense to termination
based on failure to comply with a cour t order, and “ev en if prese n ted” it was not proven by a preponderance of the evidence. 6 Mother did not raise the defense in
the trial court nor did she satisfy h er burde n of proof and establ ish th e applicability
of the defense . Section 161.001(d) places the burden on th e parent to prove by a preponderance of the evidence that s he was unable to comply with the c ourt

ordered service plan, s he made a good faith effort to co mply with t he order, and
h e r failure to comply is not att ributable to any fault of h er own. Id

. Mothe r contends i n her brief that (1) there is no ev idence indicating that she

“ understood the service plan or that it was tailored to her mental health issues ; ” (2)

“ the court app ointed an attorney to serve as Mothe r’s guardian ad litem indicat ing
that Mother lacked some mental capacity ; ” ( 3 ) she tried to comply with the service plan “ to the extent that she could under the circumstances ; ” and (4) “ Mother ’ s
ment al health i ssues made compl et ion of the services virtuall y impossible. ” But

6 The Department argues that “ Mother failed to prese rv e subsection (d) affirmative defense fo r this Court ’ s review ” because she did not plead the defense
, and “ [ a ] n affirm ativ e defense must be pleaded. ” However, a ssuming witho ut deciding that Mot her did not waive the section 16 1.001(d) defense for failure to specifically plead it, we conclude s he failed to meet h er bur den of proof.25

Mother of

fered no evidenc e at trial t hat she was unable to comply with the specific provisions of the court order, that s he m ade a good faith effort to comply with the order, and that h er fa ilure to c omply with it is not attributable to h er fault

. Mother did not explain ( as she alleges now on appeal ) why “ mental health issues made complet ion of the services virtually impossible ” when she was able to

comp lete seve ral of the tasks and service s required by th e service plan. Contr ary to
M other ’ s assertion that there is no ev idence i ndicating t h at she understood the service plan or that it was tailored to her mental health issues , the trial court f ound
in its order t hat Mother understood the se rvice plan , the s ervice plan was
reasonable and accurate, and it was “ reason ably tailored to address an y specifi c issues identified by the Department. ” Mother does not challenge the se findings nor
does she point to evidence controverting the m

. Additionally, the service p lan specifically provided fo r tasks and services to addre ss concerns regard i ng Mother ’ s mental he alth by requiring her to participate in and complete (1) a psychiatric
evaluation and to “ follow all recommendations which may include a medicine regiment, ind ividual therapy, f am i ly ther a

py, and/or group therapy ” ; (2 ) individual
ther a py, and co m

plete any re commended family or group therapy ; (3) parenting classes; (4) a psycho

- social assessment and follow all recommendations which may include a psychiatric evalu ation, individual therapy, family therapy, and/or group th e rapy ; and (5) a p sychologic a l evaluation and follow all recommendations
from the service provi der

. Therefore, we conclude t hat the trial court ’ s findings that M o ther failed to raise and prove the statutory defense are supported by legally and factually

s ufficient eviden ce in the r e cord. Accordingly , w e overrule Mother ’ s thir d issue.

III. Best Interest
In her fourth issue, Mo ther challenges the legal and fa ctual sufficiency of the26

evidence to supp ort the trial court ’ s finding that termination of the paren t

- child
rela tion sh ip was in the best interest of Lori

. However, her brief contains no legal argument in support of th is iss ue. The Rules of Appellate Proce dure require that an appellant ’ s brief “c ontain a clear and concise argument for the contentions mad e, with appropri at e citatio n s to authorities and to the record.” Tex. R. App. P. 38.1(i). An appellate issue that is

unsup ported by arg ument or contain s a n argument lacking citation to the record or legal authority presents nothing for review. In re A. L.P. , No. 01

- 19

- 00 144

- CV,
2 0 19 WL 3949461, at *5 (Tex. App.

— Houston [1st D ist.] Aug. 22, 2019, pet. dism’d) (mem. op.) ; In r e B.T.D. , No. 01

- 16

- 00582

- CV, 20 17 WL 343613 , at *7 (Tex. App.

— Houston [1 st Dist.] Jan. 20, 2017, no pet.) (mem. op.). “ ‘ Bare

asser tions of error w it hout argu m ent or authority waive error. ’ ” In re A.L.P. , 2019 WL 3949461, at *5 (quoting In re J.A.M.R. , 303 S.W.3d 422, 425 (Tex. App.

— D allas 2010, no pet.); see also In re K.C. B. , 280 S.W.3d 888, 896 (Tex. App.

— Amari llo 2009, pet. deni ed) ( Mother waiv ed challeng e to sufficiency of evidence on best interest finding in parental termination case b ecause of ina dequate briefing).
Here, Mother neither provide d any substantive analysis of the evidence regarding the child ’ s best interest n or ap propriate citati on s to the r ecord to support
h er challeng e to the trial court ’ s best interest finding. Mother failed to dem onstrate how the evidence in thi s case is insu fficient to support the tri al court ’ s finding tha t termination of her parental rights was in Lori ’ s be st interest

. Her conclusory and
bare assertion that “ [a] n evaluation of [the Holley 7 ] f actors in this case reveals the legal and factual in sufficiency of the evidence to support th e judgment ” presents

7 Holley v. Adams , 544 S.W.2d 367 , 371

- 72 (Te x. 1976) (listing factors to consider when determining the best interest of a child).27

no legal argument.
Therefore, we con clude that Mothe r ’ s alleged issue is waived as inadequately briefed. See In re A.L.P. , 2019 WL 3949461, at *5 ; In re B.T.D. , 2017 WL 343613 , at *7

- 8 ( paren t waived challeng e to legal and factual s ufficiency of evidence supporting trial court ’ s best intere st finding becau se parent i n adequately briefed it ) ; I n r e S.H. , No. 02

- 17

- 00188

- CV, 2017 WL 4542859, at *14 n.17 (Tex. App.

— Fort Worth Oct. 12, 2017, no pet .) (mem. op.) (same); In re D.V. , No. 06

- 16

- 00065

- CV, 2017 WL 1018606, at *7 (Tex. App.

— Texarkana
M ar. 16, 2017, pe t. denied) ( me m. op.) (same) ; In re D.J.W. , 394 S.W.3d 210 , 223 (Tex. App.

— Houston [1st Dist.] 2012, pet. de nied) (same)

. Accordingly, we

o verrule Mother ’ s fourth issue.

C ONCLUSION

We reverse the Final D ecree for Termination only as to the trial court ’ s f in ding unde r section 161.001(b)(1)(D), and we render judgment de leting that finding

. See Tex. R. App. P. 43 .2(c). We affirm the decree in all other respects.

/s/ Meag a n Ha ssan Justice

Panel c o ns i sts of J ust i ce s Jewell, Zimmerer, and Hassan

. (Jewell, J., concurring)

.