Reversed and Rendered in Part and Affirmed in Part and Majority and 

Concurring Opinions 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 County, Texas

Trial Court Cause No. 2018-03438J

MAJORITY 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 predicate grounds of endangerment, 

constructive abandonment, and 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 parental rights was in 

Lori’s best interest. See id. § 161.001(b)(2). In four issues, Mother challenges the 

1 We use pseudonyms or initials to refer to the child, parents, and other family members involved 

in this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
2

legal and factual sufficiency of the evidence to support the trial court’s findings on 

the predicate grounds and the best interest finding. We reverse and render in part 

and affirm in part.

BACKGROUND

This case began because the Department of Family and Protective Services 

(the “Department”) received a referral on June 15, 2018, alleging that during Lori’s

delivery Mother was aggressive and erratic and assaulted nurses. The referral 

alleged that Mother had “pressured speech,” “demonstrated poor impulse control, 

and delayed responses.”

2

 It alleged that Mother neither held Lori nor bonded with 

her since birth; and Mother’s primary care physician expressed concern about 

Mother “taking on the responsibility of caring for an infant child without first 

receiving a psychological evaluation as soon as she delivered the child.” 

Because Mother was uncooperative during the investigation, “refused to 

participate in ongoing CPS services,” and there was concern for Lori’s safety, the 

Department filed an Original Petition for Protection of a Child for 

Conservatorship, and for Termination in Suit Affecting the Parent-Child 

Relationship on June 21, 2018. The Department sought temporary managing 

conservatorship of Lori; it also sought conservatorship and/or parental termination 

if reunification with Lori’s parents was not suitable. The trial court granted the 

Department managing conservatorship of Lori. On July 7, 2018, Lori was placed 

with a foster parent, Mary. 

After a full adversary hearing on July 12, 2018, the trial court appointed the 

Department temporary managing conservator of Lori and found, among other 

things, that (1) removal was in Lori’s best interest; (2) there is a “continuing 

2 While many of the facts giving rise to this case appear to be conclusory, we are limited to 

examining the arguments and objections made by Appellant at the trial court and on appeal.
3

danger to the physical health or safety of the child and for the child to remain in the 

home is contrary to the welfare of the child;” (3) “reasonable efforts consistent 

with the child’s health and safety have been made by the Department to prevent or 

eliminate the need for removal of the child;” and (4) “appointment of the parent or 

parents as managing conservator of the child is not in the best interest of the child 

because the appointment would significantly impair the child’s physical health or 

emotional development.”

The Department filed a Family Service Plan on August 3, 2018, providing 

the following service plan goals: Mother will (1) “show the ability to parent and 

protect her daughter;” (2) “actively participate in therapy to understand how her 

health can impact her current parenting style;” and (3) “demonstrate ability to 

protect the child from harm.” The plan also set forth a list of tasks and services 

Mother needed to complete:

• Participate in and complete individual therapy, and complete any

recommended family or group therapy;

• Cooperate with all tasks required by the agency;

• Comply with all visitation guidelines as arranged by the caseworker;

• Attend all court hearings, permanency conferences, and scheduled family

visits;

• 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, clean, free of hazards, and it must have operating utilities;

• Participate in and complete a psycho-social assessment and follow all 
4

recommendations which may include a psychiatric evaluation, individual 

therapy, family therapy, and/or group therapy; and

• Participate in a psychological evaluation and follow all recommendations

from the service provider.

After a status hearing on August 7, 2018, the trial court signed an order

finding, among other things, that (1) Mother had appeared in person and through 

her attorney at the hearing; (2) Mother’s service plan is reasonable; (3) the goal of 

the service plan is to return Lori to Mother, and the plan adequately ensures that 

reasonable efforts are being made to enable Mother to provide a safe environment 

for Lori; (4) the plan is reasonably tailored to address any specific issues identified

by the Department; (5) Mother reviewed and understood the service plan, Mother 

has been advised that unless she is willing and able to provide Lori with “a safe 

environment, even with the assistance of a service plan, within the reasonable 

period of time specified in the plan, her parental and custodial duties and rights 

may be subject to restriction or to termination or [Lori] may not be returned to 

her;” and (6) Mother signed the plan. The trial court approved the service plan and 

made it an order of the court.

The Department filed a second service plan on September 10, 2018, 

expressing concerns that Mother had not started any of the requested services in 

the first plan. The second plan is identical to the first service plan except that it

added to the list of tasks and services that Mother was required to complete a 

psychiatric evaluation and to “follow all recommendations which may include a 

medicine regiment, individual therapy, family therapy, and/or group therapy.”

On June 13, 2019, Father executed an affidavit voluntarily relinquishing his

parental rights to Lori. On October 14, 2019, Mary (the foster parent) filed a 

Petition in Intervention in Suit Affecting the Parent-Child Relationship, requesting
5

that the court (1) name her as Lori’s sole or joint managing conservator; (2) grant

her an order of adoption of Lori; and (3) terminate Mother’s and Father’s parental

rights to Lori. Based on Father’s relinquishment of parental rights, the trial court 

signed an order terminating Father’s parental rights to Lori on January 26, 2021. 

In its August 25, 2021 permanency report to the court, the Department 

recommended to the court that it be dismissed as temporary managing conservator

of Lori and that the foster parent adopt Lori. On September 10, 2021, a bench trial 

was held to terminate Mother’s parental rights.

Five witnesses testified at trial: the Department’s investigation caseworker 

Inger Smith (nee Barnaby), the Department’s conservatorship caseworker Lana

Ford, Child Advocates, Inc. representative Brittany Swain, Lori’s foster mother

Mary, and Lori’s adult half-sister Alexis. Even Father came to trial and was ready 

to testify. Mother did not appear at trial, even though she was given the option to 

appear in person or via Zoom. Before any testimony, the trial court admitted into 

evidence, among other things, copies of the second family service plan, Mother’s 

drug screening results, Smith’s affidavit, the Child Advocates report, permanency 

reports, Mother’s psychological evaluation, and Mother’s psychiatric evaluation. 

We begin with a recitation of the testimony and evidence.

Caseworker Smith

Smith testified that she “received an intake” on June 15, 2018, for neglectful 

supervision of Lori, who was still in the hospital at the time. The referral included 

allegations that Mother was “aggressive during delivery,” Father “denied that the 

child was his and also the mother’s behavior was described as being just erratic

and that she was . . . possibly using illicit drugs.” Smith testified that during her 

investigation the “nursing staff said that [Mother] actually was kicking and 

assaulted the nurses during delivery.” The nurses were concerned about how 
6

Mother “treated the baby” after she was born because Mother “actually said she 

wanted — once the baby was placed on her stomach during delivery, which is a

normal practice, she stated to get the baby off her immediately.” And after Lori’s 

birth, Mother did not bond with her.

Further, Smith’s investigation (which she also memorialized in an affidavit)

confirmed that Mother was very aggressive. “There was a situation where during 

delivery she was kicking so much that her IV came apart; and when the IV came 

apart, blood was gushing everywhere.” The hospital staff told Smith that “it was 

abnormal behavior for a person. They had never seen something like that.” 

However, Mother denied “behaving erratically during the delivery of [Lori] by 

physically assaulting the nurses.” Mother told Smith that the nursing staff did not 

administer pain medication promptly and that the medication was not administered 

until after the baby’s head was exposed during delivery. Mother claimed “she was 

only reacting to the pain.” Mother told Smith that when the nurse placed Lori on 

Mother’s chest, Mother was afraid of dropping Lori because “she felt numb, so she 

demanded the child be removed immediately.”

Smith testified that she observed interactions between Mother and Father in

the hospital room. Smith described it as “kind of an abusive situation. [Mother]

was speaking to [Father] verbally in a way that, you know, you shouldn’t speak to 

a person. They weren’t getting along very well.” Smith’s investigation revealed

that because of Mother’s behavior, an “MAT” evaluation was ordered after she

delivered Lori.

3

 According to the evaluation, Mother “demonstrated delays in

responses, poor focus, poor impulse control, delay in processing information, and 

poor attention.” Smith testified that she spoke to Mother’s nurse practitioner, who 

3 Nothing in the record explains what an “MAT evaluation” is, why it was ordered, under what 

authority it was ordered, or by whom it was performed.
7

“stated that before the child would ever be taken home, [she] recommended that a 

psychiatric evaluation be done on” Mother.

After she spoke at the hospital with medical personnel, Mother, and Father, 

Smith visited the home in which Mother and Father lived. Smith testified that “the 

home was not prepared to receive a child. The floor was missing. The airconditioning was not working. It was during the summertime so it was extremely 

warm in the home.”

On June 18, 2018, while Lori was still in the hospital, Smith contacted 

Mother’s primary care physician to inquire whether he had any concerns regarding 

Mother’s ability to care for Lori. Mother’s physician recommended that she

should “be cleared by a psychiatrist, and receive a full psychiatric evaluation 

before being allowed to care for” Lori. Smith testified that she contacted Mother 

that same day to ask if Mother had a recommendation regarding Lori’s placement 

because the Department would not return Lori to her or Father. Mother 

recommended her brother, Steven, and sister-in-law, Susan. The Department 

approved placement with Steven and Susan after conducting a background check

for any criminal history and CPS (Child Protective Services) history. When Smith 

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

review the paperwork, only Father was present. Smith contacted Mother but 

Mother refused to come home for the meeting and stated that “she did not know 

what she was going to do with” Lori, she did not want Steven and Susan to be 

Lori’s caregivers, and she was thinking about giving Lori up for adoption.

The next day, Smith again contacted Mother about a relative placement for 

Lori but Mother yelled, screamed, and stated she needed more time. Mother stated

that she needed a couple of weeks before she could make a decision and she would 

not sign anything that would allow Lori to be placed with relatives despite 
8

knowing the hospital intended to discharge Lori. Lori was placed with Steven and 

Susan but was shortly thereafter removed following an anonymous call from a

relative. The relative was at a family function with Steven and Susan, and Susan

was intoxicated, and apparently told a story to the crowd that earlier that morning 

Lori was sleeping on Steven “and during the time the baby fell on the floor,” but 

Steven did not wake up to notice that Lori was on the floor. Susan woke up and 

picked up Lori. While talking about the incident, Susan “was laughing and thought 

it was very funny that no one woke up to see that the child was on the floor.” 

Smith testified that the anonymous caller also told her that Steven and Susan kept 

Lori “in an infant bathing suit in the sweltering heat, w[ere] pulling her up by her 

arms and w[ere] just not appropriate with the care with the child.”

As a result of the call, Smith spoke to Mother and testified that Mother 

admitted knowing that Steven and Susan had a CPS history (but gave no further 

details about Mother’s knowledge about the extent of Steven’s and Susan’s history

with CPS, and further testified that the Department did not previously find their 

CPS history because the earlier case was filed under Susan’s maiden name, and 

that the allegations behind the charges were unable to be determined). Smith

removed Lori from Steven’s and Susan’s home on July 6, 2018, and placed Lori 

the next day in foster mother Mary’s care. Lori lived with Mary since her removal 

and was still in her care at trial.

Smith testified that she investigated other possible family placements.

Father had a 19-year-old son who had similar health issues as Father; and the only 

other person Mother recommended for Lori’s placement did not pass CPS 

background checks. Smith testified that during the time she was assigned to the 

case, Mother was not cooperative and Smith never found the parents’ home to be 

safe or stable. Although Smith could not recall if Mother had prior CPS history, 
9

Smith testified that Mother had APS (Adult Protective Services) history for 

allegedly attacking Father.

Caseworker Ford

Ford, who was the caseworker assigned to the case after Lori was placed 

with Mary, testified at trial and requested on behalf of the Department that the trial 

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

abandonment, and failure to comply with the service plan for reunification and in 

the best interest of Lori. Ford explained why she believed that Mother had 

endangered Lori. Ford testified that Mother has a tendency to be violent and Ford 

is concerned about the safety in the home. Ford received several reports of

domestic violence in the home and there have been “a lot of calls to law 

enforcement to [the] home” as recently as August 24, 2021.

4

 According to Ford, 

Father has told her that Mother is violent. Every month, Father expressed concern

in conversations with Ford about Mother’s state of mind, his safety, and the safety 

of Lori because he did not think Mother could care for Lori. Father has repeatedly 

tried to get Mother to leave his home and even called APS to “get some relief from 

her abusive behavior,” but Mother refused to leave.

Ford testified that she had discussions with Mother about “her violent

nature” but Mother was unreceptive to Ford’s efforts to try to find a solution. 

Every time Ford offered Mother another place to live, she refused. For example,

Ford offered Mother a place in a shelter at which she would “work programs” and 

then “have her own place,” but Mother refused. Ford testified that it is very hard 

for her to work with Mother because, if Mother does not get or hear what she 

wants, “she’s very aggressive with [Ford] and then at that time, she’ll stop talking 

to [Ford].” Mother only called Ford when she was upset with Father. Mother 

4 The trial date below was September 10, 2021.
10

would claim that Father was harming her and that she was afraid for her life, but 

when Ford asked Mother to move out so she can be in a safe environment, Mother

did not want to leave.

Ford believed that an unsafe home endangered Lori. Ford was also 

concerned about Mother’s lack of visitation with Lori and Mother’s behavior 

during the visits she actually joined. Mother would get upset with Lori during 

face-to-face visits and would just walk away, leave, and not attend to Lori’s needs.

Ford testified that Mother was “involved with [Lori] only when she fe[lt] that 

[Lori] is attentive to her;” otherwise, Mother would leave.

Ford testified that Mother never stated she wanted to see Lori. It was Father 

who always “made sure and scheduled all” the visits with Lori “and Mother would 

show up and then when [Father] relinquished, [Ford] would contact [Mother] 

directly”, but Mother would say she needed to talk to Father “to see when was a

good time and then afterwards she just stopped responding to” Ford. Ford testified 

that she had Zoom meetings with Mother from March 2020 to August 2020, when 

Mother “stopped participating.” Ford stated that Mother’s last visit was on August 

27, 2020, but Mother did not show her face or respond. Thereafter, Ford called 

Mother every month to try to schedule a visit, but Mother never called back or ever 

showed any interest in seeing Lori. Ford further testified that Mother never made a 

child support payment to Mary; Mother only gave a stuffed animal to Lori and two 

outfits that were too small.

Ford expressed concern that Mother failed to comply with the tasks, 

services, and goals set forth in the service plan Ford drafted for Mother. Ford 

testified that Mother signed and received a copy of the service plan. Mother 

completed a psychological evaluation, a psychiatric evaluation, parenting classes,

and individual therapy; she also showed Ford a disability reward letter to prove 
11

stable income. However, Mother neither completed additional therapy in June 

2020 nor family therapy as required by her service plan. Ford testified that Mother 

and Father “could not even start that service because of the arguing within the 

home.” Ford stated that she told Mother at a permanency hearing that Mother 

should complete additional therapy. Mother was required to provide stable 

housing but failed to do so. Ford testified that, in addition to not completing the

required tasks, Mother did not achieve the goals of the service plan and (in her 

opinion) could not “provide for the ongoing safety and well-being of” Lori.

Ford testified that she discussed every item on the service plan with Mother. 

She could not “put a number on” how many times she discussed the plan with 

Mother, but stated that every time she spoke to Mother, she would “definitely go 

over the plan” with her. Ford stated that she spoke to Mother at least twice a 

month. Ford also offered to meet with Mother every month. Mother last 

responded to Ford’s request to meet in August 2021, stating she had a stomach bug 

and that she was “a little upset because a good friend of mine has cancer and she 

passed away.” Ford claimed that Mother’s statements sounded like an excuse to

not meet with Ford.

Ford expressed concern that Mother was not taking her Xanax prescription 

regularly, causing her to become “quite agitated,” anxious, and very aggressive. 

Ford testified that Mother told her Mother had been diagnosed with Huntington’s

disease; Huntington’s disease5 does not have a cure and is progressive in nature. 

5

“Huntington’s disease is a rare, inherited disease that causes the progressive breakdown 

(degeneration) of nerve cells in the brain. Huntington’s disease has a broad impact on a person’s 

functional abilities and usually results in movement, thinking (cognitive) and psychiatric 

disorders.” https://www.mayoclinic.org/diseases-conditions/huntingtons-disease/symptomscauses/syc-20356117. “No treatments can alter the course of Huntington’s disease. But 

medications can lessen some symptoms of movement and psychiatric disorders. And multiple 

interventions can help a person adapt to changes in his or her abilities for a certain amount of 

time.” https://www.mayoclinic.org/diseases-conditions/huntingtons-disease/diagnosis-
12

Mother was also diagnosed with adjustment disorder with anxiety.

With regard to Lori’s life since her placement with Mary, Ford testified that 

Lori was “really flourishing.” Ford stated Lori is in pre-kindergarten, she is active

and friendly, she is learning how to swim and speak Spanish, she has “a very good 

routine,” and she is “very much” bonded with Mary and Mary’s family. Lori also 

visits with her half-sister and half-brother—Mother raised neither of her two other 

children, and Lori’s half-siblings and Mother’s family desire for Lori to remain 

with Mary. Ford testified that Lori would not maintain a relationship with her halfsiblings if she were to be returned to Mother because Mother does not have a 

relationship with her children and her family. Ford also stated that Mary has a 

stable job and provides for Lori’s emotional needs. Ford confirmed that it is also 

Father’s desire for Lori to remain with Mary.

Child Advocates Representative Swain

Swain testified that Child Advocates has been involved in Lori’s case since 

August 2018, and she is the child advocate for Lori. Swain stated that termination 

of Mother’s parental rights would be in Lori’s best interest because: Lori is in a

safe and stable environment; Lori’s placement with Mary “has been meeting all of 

her needs, not just basic, [but] exceeding her needs”; Lori is extremely happy and 

her life is structured; there is no domestic violence in Mary’s home; Mary’s home 

is well kept; Lori is “just very happy and she’s thriving;” Lori recognizes Mary as 

her family; Lori has made “healthy developmental progress” in Mary’s care; and

there is a bond between Lori and Mary. Swain testified that she has no 

reservations about Mary and her family. According to Swain, Mary plans to adopt 

Lori which is in Lori’s best interest.

treatment/drc-20356122.
13

Foster Mother Mary

Mary testified that Lori has lived with her for most of Lori’s life and that she 

plans to adopt Lori if the court terminates Mother’s parental rights. Mary stated 

that she developed relationships with Lori’s biological family, in particular with 

Lori’s half-siblings, Alexis and Stan, and Lori’s step-grandmother (Mother’s 

stepmother who helped raise Mother). Mary testified that Mother has not had any 

visitation with Lori in well over a year and asked the court to terminate Mother’s

parental rights.

Half-sister Alexis

Finally, Alexis testified at trial that it would be in Lori’s best interest to 

terminate Mother’s parental rights because Mother “is abusive and neglectful so —

which is not a good environment for children and I’ve seen [Mary] with L[ori] and 

she is a good environment.” Alexis explained that she had been raised by her

grandparents, although Mother “was technically there.” According to Alexis, 

Mother “just didn’t seem very interested unless, you know, it was — she was 

trying to make a statement somehow.” It was her grandparents who provided 

Alexis emotional and financial support. Alexis did not believe that Lori would be 

safe if she were to be returned to Mother. Based on past experience with Mary, 

Alexis believed that she would have a positive relationship with Lori if the court 

terminates Mother’s parental rights. Alexis was doubtful that she would continue 

to have a positive relationship with Lori if Lori were to live with Mother. Alexis 

also mentioned that Mother wanted to move in with Alexis so Alexis could take 

care of both Mother and Lori, but Alexis made clear she did not “want to do that”

because she “lived with [Mother] enough.”

On September 28, 2021, the trial court signed a Final Decree for

Termination, finding by clear and convincing evidence that termination of 
14

Mother’s parental rights was in Lori’s best interest and warranted under three 

subsections of section 161.001(b)(1) of the Family Code: (D) (endangerment by 

environment), (N) (constructive abandonment), and (O) (failure to comply with 

court-ordered plan for reunification with the child). See Tex. Fam. Code Ann. §

161.001(b)(1)(D), (N), and (O). The trial court appointed the Department as Lori’s 

sole managing conservator. Mother filed a timely appeal.

ANALYSIS

Parental rights can be terminated upon proof by clear and convincing 

evidence that (1) the parent has committed an act prohibited by section 

161.001(b)(1); and (2) termination is in the best interest of the child. Tex. Fam. 

Code Ann. § 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). 

Mother raises four issues on appeal, challenging the legal and factual sufficiency of 

the evidence supporting the trial court’s (1) findings under sections 

161.001(b)(1)(D), (N), and (O); and (2) best interest finding.

I. Standards of Review

Involuntary termination of parental rights is a serious matter implicating 

fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); 

In re J.E.M.M., 532 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2017, no 

pet.). However, a child’s emotional and physical interests should not be sacrificed 

to preserve parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

Due to the severity and permanency of the termination of parental rights, the 

law imposes a heightened burden of proof, requiring 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). “Clear and convincing” means “the measure or degree of proof 

that will produce in the mind of the trier of fact a firm belief or conviction as to the 
15

truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007.

This heightened burden of proof results in heightened standards of review

for evidentiary sufficiency. In re V.A., 598 S.W.3d 317, 327 (Tex. App.—Houston 

[14th Dist.] 2020, pet. denied). For a legal sufficiency challenge, we consider all

of the evidence in the light most favorable to the finding to determine whether a 

reasonable factfinder could have formed a firm belief or conviction that its finding 

was true. In re J.F.C., 96 S.W.3d at 266. We assume the factfinder resolved 

disputed facts in favor of its finding if a reasonable factfinder could do so, and we 

disregard all controverting evidence a reasonable factfinder could disbelieve. Id.

For a factual sufficiency challenge, we consider and weigh all the evidence, 

including disputed or conflicting evidence, to determine whether a reasonable 

factfinder could have formed a firm 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 that a 

reasonable factfinder could not have resolved that dispute in favor of its finding. 

Id.

The factfinder is the sole arbiter when assessing the credibility and 

demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). “We may 

not second-guess the fact finder’s resolution of a factual dispute by relying on 

disputed evidence or evidence the fact finder ‘could easily have rejected as not 

credible.’” In re V.A., 598 S.W.3d at 328 (quoting In re L.M.I., 119 S.W.3d 707, 

712 (Tex. 2003)).

II. Predicate Findings

The trial court made predicate termination findings pursuant to Texas 

Family Code section 161.001(b)(1)(D), (N), and (O). In her first, second, and third 

issues, Mother challenges the legal and factual sufficiency of the evidence to 
16

support the trial court’s findings on these predicate grounds.

Only one predicate finding under section 161.001(b)(1) is necessary to 

support a judgment of termination when there also is a finding that termination is 

in the child’s best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re 

V.A., 598 S.W.3d at 327. Due process requires that when a parent has raised the 

issue of insufficiency of the evidence to support the trial court’s findings under 

section 161.001(b)(1)(D) or (E) of the Family Code, an appellate court must 

address one of those endangerment findings to ensure 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 713, 

720 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Due process and duecourse-of-law requirements also mandate that an appellate court detail its analysis 

for an appeal of termination of parental rights under section 161.001(b)(1)(D) or 

(E) of the Family Code. In re P.W., 579 S.W.3d at 720. In this case, Mother 

challenges the trial court’s finding of endangerment; we, therefore, address the trial 

court’s endangerment finding under section 161.001(b)(1)(D).

A. Predicate Finding under Section 161.001(b)(1)(D)

In her first issue, Mother challenges the legal and factual sufficiency of the 

evidence to support the trial court’s finding of endangerment under subsection D. 

Termination under subsection D requires clear and convincing evidence that 

the parent “knowingly placed or knowingly allowed the child to remain in

conditions or surroundings which endanger the physical or emotional well-being of 

the child.” Tex. 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 re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam); In re V.A.,

598 S.W.3d at 328. Endangerment encompasses “more than a threat of 

metaphysical injury or the possible ill effects of a less-than-ideal family
17

environment,” but it is not necessary that the conduct was directed at the child or 

that the child actually suffered 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 living conditions as well as the parent’s 

conduct in the home. In re C.W.M.P., No. 14-20-00571-CV, 2021 WL 244865, at 

*5 (Tex. App.—Houston [14th Dist.] Jan. 26, 2021, pet. denied) (mem. op.); In re 

S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). A 

child is endangered when the environment creates a potential for danger and the 

parent is aware of the danger yet consciously disregards it. In re V.A., 598 S.W.3d

at 328. Inappropriate, abusive, or unlawful conduct by a parent or other persons 

who live in the child’s home can create an environment that endangers the physical 

or emotional well-being of a child as required for termination under subsection D. 

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

Parental rights may be terminated under subsection D based on a single act 

or omission. In re C.W.M.P., 2021 WL 244865, at *5; In re V.A., 598 S.W.3d at 

329. In evaluating endangerment under subsection D, the court has to consider the 

child’s environment before the Department obtained custody. In re C.W.M.P.,

2021 WL 244865, at *6; In re V.A., 598 S.W.3d at 329. Subsection D is not a basis 

for termination of parental rights if the parent was unaware of the endangering 

environment. In re V.A., 598 S.W.3d at 329. There must be clear and convincing 

evidence of endangerment as well as of the parent’s awareness of the endangering 

environment. Id.

Mother contends the judgment of the trial court terminating her parental 

rights under subsection D should be reversed because Lori was never in Mother’s

possession and was removed from Mother and Father at the time of birth while still 

in the hospital. Mother argues that the “relevant time frame in a subsection (D)
18

case to determine whether there is clear and convincing evidence of endangerment 

is before” a child’s removal by the Department. Therefore, Mother argues,

“[b]ecause Lori was never in Mother’s custody, it stands to reason that she could 

not have been responsible for knowingly placing or knowingly allowing the child 

to remain in conditions or surroundings which endangered the child’s physical or 

emotional health.”

The Department counters that the trial court’s finding that Mother’s parental 

rights to Lori should be terminated under subsection D is supported by legally and 

factually sufficient evidence. In particular, the Department points to the following

evidence in support of its contention: (1) Mother assaulted nurses during Lori’s 

delivery and jumped in the hospital bed which caused her IV to be dislodged; (2) 

Mother did not bond with Lori; (3) Father denied paternity and stated he would 

commit suicide if he lost his eye sight completely; (4) Mother did not eat a healthy

diet during pregnancy and did not receive prenatal care; (5) Mother recommended 

placing Lori with relatives who had CPS history; (6) there was domestic violence

in Mother’s and Father’s home; (7) the home was in disrepair, had a broken 

refrigerator and A/C and was thus unfit for a child; (8) Mother had abandoned her 

previous two children; (9) Mother had health issues like Huntington’s disease; (10) 

family members reported Mother was abusive and manipulative and none of her

“extended family recommended that she maintain her parental rights to Lori;” and 

(11) Mother did nothing to provide a safe environment for Lori as required by the

service plan.

We agree with Mother that there is legally insufficient evidence to support 

the trial court’s finding under subsection D. To begin with, Mother assaulting 

nurses, jumping on the bed, eating an unhealthy diet, not receiving prenatal care, 

and abandoning her two other children as well as Mother’s failure to bond with 
19

Lori and Father’s denial of paternity or threat of suicide is not evidence of abusive 

or unlawful conduct that created a dangerous environment in which Lori lived or 

remained. Mother’s recommendation to place Lori with relatives who had CPS 

history does not constitute evidence that Mother knowingly placed or knowingly 

allowed Lori to remain in a dangerous environment because Lori was in the

Department’s care. It is the Department’s responsibility to conduct competent 

background checks and find any relevant CPS history to ensure appropriate 

placement of a child it removes from its natural parents. Additionally, there was 

no evidence that Steven and Susan actually had a CPS history, nor any evidence 

that it was substantiated. This type of inference-upon-inference does not rise to the 

level of clear and convincing evidence that can support a determination that a 

parent has engaged in the conduct described in Family Code section 

161.001(b)(1)(D).

Further, domestic violence in Mother’s and Father’s home, Mother’s health 

issues, the home being in disrepair, Mother being abusive and not providing a safe 

environment per her service plan, and her extended family not recommending she 

maintain her parental rights to Lori is not evidence in support of a finding under 

subsection D. Lori was never in Mother’s home or care; Lori never lived with 

Mother. Therefore, Mother never placed or allowed Lori to remain in conditions

or surroundings which endangered Lori’s physical or emotional well-being as 

required by subsection D. We conclude the evidence is legally insufficient to 

support the trial court’s finding that Mother engaged in the conduct described in 

Family Code section 161.001(b)(1)(D).

Accordingly, we sustain Mother’s first issue on legal insufficiency and do 

not need to reach the question of factual insufficiency.

B. Predicate Finding under Section 161.001(b)(1)(N)
20

In her second issue, Mother challenges the legal and factual sufficiency of 

the evidence to support the trial court’s finding of constructive abandonment under 

subsection N. 

Termination under subsection N requires clear and convincing evidence that 

the parent has constructively abandoned the child who has been in the permanent 

or temporary managing conservatorship of the Department for not less than six 

months, and (1) the department has made reasonable efforts to return the child to 

the parent; (2) the parent has not regularly visited or maintained significant contact 

with the child; and (3) the parent has demonstrated an inability to provide the child 

with a safe environment. Tex. Fam. Code Ann. § 161.001(b)(1)(N). The first 

element focuses on the Department’s conduct; the second and third elements focus

on the parent’s conduct. In re A.L.H., 468 S.W.3d 738, 744 (Tex. App.—Houston 

[14th Dist.] 2015, no pet.). 

Mother does not challenge the sufficiency of the evidence to support the 

finding that (1) Lori was in the Department’s care for more than six months; (2) 

Mother has not regularly visited or maintained significant contact with Lori; and 

(3) Mother has demonstrated an inability to provide Lori with a safe environment. 

Therefore, we will focus on Mother’s argument that “the first element of the (N) 

ground was not met because it was not supported by the evidence in the record and 

was not proven by clear and convincing evidence.” In that regard, Mother states:

“Smith testified that she visited Mother’s home and that it was not suitable for a 

child but no testimony was offered about the reasonable efforts to place the child in

her home. Ford testified that she spoke to Mother about moving to another place 

but Mother was not receptive to moving. This testimony is at best[] weak and does 

not rise to the level of clear and convincing.”

Under the first element, returning a child to a parent under section 
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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. 14-18-01084-CV, 2019 WL 2097541, at 

*4 (Tex. App.—Houston [14th Dist.] May 14, 2019, pet. denied) (mem. op.). 

Implementation of a family service plan by the Department is considered a

reasonable effort to return a child to its parent. Id.; In re A.L.H., 468 S.W.3d at 

744; In re K.G., 350 S.W.3d 338, 354 (Tex. App.—Fort Worth 2011, pet. denied). 

A family service plan is designed to reunify a parent with a child who has been 

removed by the Department. In re A.M.T., 2019 WL 2097541, at *4. A service 

plan must, among other things, (1) be specific; (2) state the goal of the plan, which 

may be the return of the child to the child’s parents; and (3) state the actions and 

responsibilities necessary for the child’s parents to take to achieve the plan goal. 

Id.; see also Tex. Fam. Code Ann. § 263.102.

In this case, Ford created a service plan for Mother which required Mother

to (1) complete individual therapy and any recommended family or group therapy;

(2) cooperate with all tasks required by the agency; (3) comply with all visitation 

guidelines as arranged by the caseworker; (4) attend all court hearings,

permanency conferences, and scheduled family visits; (5) complete parenting 

classes; (6) maintain stable employment or income benefits for six months; (7) 

acquire and maintain stable and safe housing; (8) complete a psycho-social 

assessment and follow all recommendations, including individual and family 

therapy; and (9) participate in a psychological evaluation and follow all 

recommendations from the service provider.

The record reflects a status hearing order signed by the trial court on August 

7, 2018, in which the court found that (1) Mother had appeared in person and 

through her attorney at the hearing; (2) Mother’s service plan is reasonable; (3) the 

goal of the service plan is to return Lori to Mother, and the plan adequately ensures
22

that reasonable efforts are being made to enable Mother to provide a safe 

environment for Lori; (4) the plan is reasonably tailored to address any specific

issues identified by the Department; (5) Mother reviewed and understood the 

service plan, Mother has been advised that unless she is willing and able to provide 

Lori with “a safe environment, even with the assistance of a service plan, within 

the reasonable period of time specified in the plan, her parental and custodial

duties and rights may be subject to restriction or to termination or [Lori] may not

be returned to her;” and (6) Mother signed the plan. The trial court approved the 

service plan and made it an order of the court.

The record reflects that Ford created and filed a second service plan on 

September 10, 2018, which was identical to the first service plan except that it

added to the list of tasks and services that Mother was required to complete a 

psychiatric evaluation and to “follow all recommendations which may include a 

medicine regiment, individual therapy, family therapy, and/or group therapy.” 

This service plan was admitted into evidence at trial, and Ford testified that Mother 

had received and signed the second service plan. Ford testified that she discussed

every item on the service plan with Mother. Ford could not “put a number on”

how many times she discussed the plan with Mother, but stated that every time she 

spoke to Mother, she would “definitely go over the plan” with Mother. Ford stated

that she spoke to Mother at least twice a month and also offered to meet with 

Mother every month. 

Ford also offered Mother help to find stable and safe housing. For example, 

Ford offered Mother a place in a shelter at which she would “work programs” and 

then “have her own place,” but Mother refused. Ford stated she was concerned

that Mother failed to comply with the tasks, services, and goals set forth in the 

service plan she drafted for Mother. According to Ford, Mother failed to complete
23

family therapy and additional individual therapy as required by her service plan. 

Ford testified that she told Mother at a permanency hearing that Mother should 

complete additional therapy, and Mother acknowledged “that she was told from a 

psychiatrist but she was not going to do it.” 

By implementing a family service plan and reviewing the plan and the 

consequences of failure to comply with the plan, the Department met its burden 

regarding the first element. Thus, we conclude a reasonable factfinder could have 

formed a firm belief or conviction that the Department made reasonable efforts to

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

C. Predicate Finding under Section 161.001(b)(1)(O)

In her third issue, Mother contends that the evidence is legally and factually

insufficient to support termination under section 161.001(b)(1)(O), which requires 

a factfinder to find by clear and convincing evidence that the parent has failed to 

comply with the provisions of a court order that specifically established the actions 

necessary for the parent to obtain the return of the child who has been in the 

permanent or temporary managing conservatorship of the Department for not less 

than nine months as a result of the child’s removal from the parent under Chapter 

262 for the abuse or neglect of the child. See Tex. Fam. Code Ann. § 

161.001(b)(1)(O). 

However, despite Mother’s statement, she does not challenge the evidence 

supporting the trial court’s predicate finding. Instead, Mother contends that a

preponderance of the evidence demonstrates she was unable, through no fault of 

her own, to complete the service plan because of “a mental health disorder and an 

abusive home.” That contention is an invocation of the statutory defense to

termination under subsection O, codified in section 161.001(d). See id. § 

161.001(d). The Texas Family Code establishes a single affirmative defense to 
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termination for failure to comply with a court order:

A court may not order termination under Subsection (b)(1)(O) based 

on the failure by the parent to comply with a specific provision of a 

court order if a parent proves by a preponderance of evidence that:

(1) the parent was unable to comply with specific provisions of 

the court order; and

(2) the parent made a good faith effort to comply with the order 

and the failure to comply with the order is not attributable to 

any fault of the parent.

Id. The record before us supports the trial court’s conclusion in its final 

termination decree that Mother failed to raise a statutory defense to termination

based on failure to comply with a court order, and “even if presented” 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 her burden of proof and establish the applicability 

of the defense. Section 161.001(d) places the burden on the parent to prove by a 

preponderance of the evidence that she was unable to comply with the courtordered service plan, she made a good faith effort to comply with the order, and 

her failure to comply is not attributable to any fault of her own. Id.

Mother contends in her brief that (1) there is no evidence indicating that she

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

“the court appointed an attorney to serve as Mother’s guardian ad litem indicating 

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 

mental health issues made completion of the services virtually impossible.” But 

6 The Department argues that “Mother failed to preserve subsection (d) affirmative defense for

this Court’s review” because she did not plead the defense, and “[a]n affirmative defense must be 

pleaded.” However, assuming without deciding that Mother did not waive the section 

161.001(d) defense for failure to specifically plead it, we conclude she failed to meet her burden 

of proof.
25

Mother offered no evidence at trial that she was unable to comply with the specific 

provisions of the court order, that she made a good faith effort to comply with the 

order, and that her failure to comply with it is not attributable to her fault. 

Mother did not explain (as she alleges now on appeal) why “mental health 

issues made completion of the services virtually impossible” when she was able to 

complete several of the tasks and services required by the service plan. Contrary to 

Mother’s assertion that there is no evidence indicating that she understood the 

service plan or that it was tailored to her mental health issues, the trial court found

in its order that Mother understood the service plan, the service plan was 

reasonable and accurate, and it was “reasonably tailored to address any specific 

issues identified by the Department.” Mother does not challenge these findings nor 

does she point to evidence controverting them. Additionally, the service plan 

specifically provided for tasks and services to address concerns regarding Mother’s

mental health by requiring her to participate in and complete (1) a psychiatric 

evaluation and to “follow all recommendations which may include a medicine 

regiment, individual therapy, family therapy, and/or group therapy”; (2) individual 

therapy, and complete any recommended family or group therapy; (3) parenting 

classes; (4) a psycho-social assessment and follow all recommendations which 

may include a psychiatric evaluation, individual therapy, family therapy, and/or 

group therapy; and (5) a psychological evaluation and follow all recommendations

from the service provider.

Therefore, we conclude that the trial court’s findings that Mother failed to 

raise and prove the statutory defense are supported by legally and factually 

sufficient evidence in the record. Accordingly, we overrule Mother’s third issue.

III. Best Interest

In her fourth issue, Mother challenges the legal and factual sufficiency of the 
26

evidence to support the trial court’s finding that termination of the parent-child 

relationship was in the best interest of Lori. However, her brief contains no legal 

argument in support of this issue.

The Rules of Appellate Procedure require that an appellant’s brief “contain a 

clear and concise argument for the contentions made, with appropriate citations to 

authorities and to the record.” Tex. R. App. P. 38.1(i). An appellate issue that is

unsupported by argument or contains an argument lacking citation to the record or 

legal authority presents nothing for review. In re A.L.P., No. 01-19-00144-CV, 

2019 WL 3949461, at *5 (Tex. App.—Houston [1st Dist.] Aug. 22, 2019, pet. 

dism’d) (mem. op.); In re B.T.D., No. 01-16-00582-CV, 2017 WL 343613, at *7

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

assertions of error without argument 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.—

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

Amarillo 2009, pet. denied) (Mother waived challenge to sufficiency of evidence 

on best interest finding in parental termination case because of inadequate 

briefing).

Here, Mother neither provided any substantive analysis of the evidence 

regarding the child’s best interest nor appropriate citations to the record to support 

her challenge to the trial court’s best interest finding. Mother failed to demonstrate

how the evidence in this case is insufficient to support the trial court’s finding that 

termination of her parental rights was in Lori’s best interest. Her conclusory and 

bare assertion that “[a]n evaluation of [the Holley7] factors in this case reveals the 

legal and factual insufficiency of the evidence to support the judgment” presents 

7 Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (listing factors to consider when 

determining the best interest of a child).
27

no legal argument. 

Therefore, we conclude that Mother’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 (parent waived challenge to legal and factual sufficiency 

of evidence supporting trial court’s best interest finding because parent

inadequately briefed it); In re 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 

Mar. 16, 2017, pet. denied) (mem. op.) (same); In re D.J.W., 394 S.W.3d 210, 223

(Tex. App.—Houston [1st Dist.] 2012, pet. denied) (same). Accordingly, we 

overrule Mother’s fourth issue.

CONCLUSION

We reverse the Final Decree for Termination only as to the trial court’s 

finding under section 161.001(b)(1)(D), and we render judgment deleting that 

finding. See Tex. R. App. P. 43.2(c). We affirm the decree in all other respects.

/s/ Meagan Hassan

Justice

Panel consists of Justices Jewell, Zimmerer, and Hassan. (Jewell, J., concurring).