### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00103- CV

Tabi tha LaRocca, Appellant

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 146 TH JUDICI AL DISTRICT NO. 231 ,242 , H ONO RAB LE RICK MO RRIS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
Tabitha L aRocc a appea ls from the trial court’s order terminating her pare ntal rig hts to her son, R.W ., afte r a jury found th at h er ri g hts should be terminated. On appea l, L aRocc a 1 challeng es the leg al and f actua l sufficienc y

of the e vidence to support the jury ’s finding
. Be cause
we conclude that the evidenc e is leg ally and fac tually sufficie nt to establish (1) statutory g rounds for termination and (2) that termination is in the child’s best interest, we aff irm the t rial court’s order of termination.
BACK GR OUND

The Depa rtment of Family and Protective Service s (the “De partment” ) broug ht suit ag ainst Tabitha L aRocc a and Gre g ory Worley for termination of pare ntal rig hts to their son, R.W
. R.W .’s foster

pare nts, Virg il and Melody Cowg er, inter

vened.
At some point afte r this suit was filed, L aRocc a obtained a divorce and chang ed her name 1 to Tabitha Guer

ra. Be cause the trial court’s order of termination ref ers to her as Tabitha L aRocc a, we will do the same for the pur poses of this opinion.The Depa rtment first beca

me involved in J uly 2008, when R.W ., who was five wee ks old at the time, was broug ht to the emer g ency room by L aRocc a and R.W .’s pater nal g randpa

rents, Ray mond and Rebec ca Worley
. R.W
. suffe red from a fra cture d skull, a hematoma on the rig ht side 2 of his head, a “big sub d u ra l h em atoma” on the left side of his head, and brain shear ing. R.W .’s 3 injurie s require d sever al emer g ency surg erie s and two-and- one-ha lf wee ks of hospitaliz ation. Emerg ency

room doctors diag nosed the injuries a s resulting from non-a ccide ntal trauma. Shortly afte r the Depa

rtment beca

me involved, the Depa

rtment’s investiga tor, Kec ia Amos-Folks, prepa

red an aff idavi t s u m marizing her investiga tion. L aRocc a told Folks that the injury occur

red when she, Ray

mond, and Rebec ca left R.W
. with Worley t o attend a doctor’s appointment. L aRocc a said that prior to leaving the house, she was holding R.W ., who was awake and un i n j u re d
. Approx imately four hours later, Rebec ca rec eived a phone call from Worley informing her that the baby had fallen off of the bed. L aRocc a, Ray mond, and Rebec ca returne d home and drove R.W
. to the fire station, wher e an ambulance took them to the hospital. Worley told Folks that R.W
. acc identally fell from his lap and hit his head on the side of the bed fra me. R.W .’s
neurosur g eon, Dr. Patricia Aronin, testified at t ri al, howeve r, that R.W .’s injuries could not have
occur red from falling off of a bed. She stated t hat t he severity of R .W.’s brain shearing and skul l damag e require d a violent forc e, such as “violent s h ak i n g an d t hen
. . . being thrown down on something that was pretty hard
. . . or be[ing] hit with something.” Such an injury could occur from
a fall only “if y ou fell out of the fourth story window onto the paveme nt.
. . . I t would take that sort
For the sake of clar ity , we will ref er to R.W .’s g randpa

rents and foster pare nts by their first 2 names. Documents related to the Department’s investigation i ndicate that b ra i n shear ing occur s

3 when a body trave ling at a cer tain velocity stops suddenly and the brain continues trave ling forwa rd in the brain c avity , ripping blood vessels. I t is most often see n in high spe ed ca r ac cidents. 2of a distance and an impact.” Despite the sever ity of R.W .’s injuries, L aRocc a testified at trial that

for near ly six months she continued to believe Worley ’s claims that R.W
. was acc identally injured by falling from the be d.

The Depa rtment soug ht and o b t ained an order appointing it temporar y manag ing
conser vator in Aug ust 2008, while R.W
. was still hospitaliz ed, on the g rounds that the Depa rtment could discern no cre dible explanation for the cause of R.W .’s injuries and that L aRocc a persisted in her belief that the injury was an acc ident. Worley was later convicted of serious bodily injury to a 4 child with a dea dly

wea pon in connec tion with R.W .’s i njuries and was sentenced to twe nty y ear s in prison. The Depa

rtment soug ht termination of both Worley ’s and L aRocc a’s pare ntal rig hts and 5 a jury trial was he ld in J anuar

y 2010.
R.W.’s Con dition

At trial, Dr. Ar onin testified to R.W .’s cur rent c ondition. S he stated tha t R.W
. has sustained sever al long- term eff ects from his injuries and is considere d a medically fra g ile child. I n addition to his initial surg erie s, R.W
. has had two other m aj o r s u rgeries in Dec ember 2008 and J uly 20 0 9. He is at risk for seizures and takes seizure medication twice a day
. He also wea rs an
o rt h o t i c helmet 23 hours a day to protec t the holes in his skull and shape his head as it g rows. Be cause of his helmet, R.W
. can overhe at easily , which may cause seizures. R.W .’s car etake r must be diligent to preve nt R.W
. from becoming too hot, and remove his clothing and helmet if he starts looking overhe ated. Additionally , R.W
. has two fluid-dra ining shunt tubes in his head which must

The Depa rtment later ruled out the possibili ty that R.W .’s injuries wer e cause d by L aRocc a. 4 The c ourt in Worley ’s cr iminal procee ding f ound the bed to be a

deadly wea pon. 5 3be consta

ntly monitored, as a shunt ma lfunction may cause brain damag e or death. Be cause R.W
. is too y oung to communicate discomfort, in order to discover a shunt malfunction, R.W .’s car etake r must know R.W ., understand his patterns and behavior s, and rec og nize small behavior al chang es.

Melody , R.W .’s foster mother, testified that as a result of R.W .’s medical conditions, he sees a number of doctors on a reg ular basis. He attends phy sical, occupa tional, and speec h therap y fo u r times per wee k for 30 minutes to an hour eac h, helmet fittings ever y two wee ks for 30 minutes to two hours, and has appointm ents with his neurosur g eon every two to three months, his neurolog ist ever

y two to four mon t h s , his pediatric g astroente rolog ist ever y six months or as neede d, and his opthamologist ever y two months, as well as reg ular pediatric and dental appointments. R.W .’s doctors a re c urre ntly

in Killeen, Austin, Round Rock, and Temple. Acc ording to Dr. Aronin, R.W
. was nineteen months old at the time of trial but was functioning at the lev el o f a t welve- month-old, and will continue to have sever ely limit ed development. She testified that, based on wh at she had seen so far , R.W
. will fore ver have the cog nitive ability and mot or ski lls of a y oung child an d will need car e int o adulthood. Thoug h his b o d y will g row into an adult, she stated that he will likely be unable to walk, his speec h wi l l b e limit ed, and he will ne ver be “norma l.” She was unsure whether he will ever lear n to dress, bathe, or fe ed himself.

Upon R.W .’s rele ase from the hospital, he was place d in foster car e with the Cowg ers in Be lton, where he still remains. Melody Cowg er is a licensed voc ational nurse e mploy ed with a pediatric home health ag ency and has experienc e ca ring for medically fra g ile children. R.W .’s
neurosur g eon, pediatric ian, phy sical thera pist, case worke r, and g uardia n ad litem all testified to the

4high quality of car e the Cowg ers have provided R.W
. The Cowg ers testified that they wish to adopt

R.W . following a succ essful termination.
The Guerras’ Hom e in Brow nsville

Shortly afte r the Depa

rtment took custody of R.W ., L aRocc a chose to move into her pare nts’ home in Br ownsville, seven hours awa y . L aRocc a testified that she and Worley had planned
on moving to Br ownsville even befor e R.W
. was born. Be cause she had no family , friends, job, or
car in B elton, L aRocc a fe lt that “the only thing [she] could do was g o home.” Thoug h she looked into housing at the Ronald McDona ld house, L aRocc a admitted she never looked into other housing
or employ

ment options in Be lton beca use sh e was told by the Depa rtment that she neede d family support, which wa s located solely in Brow nsville. Christi na Ga rcia , R.W .’s case worke r, testified th a t it was her understanding that Ray mond and Rebec ca offe red L aRocc a housing and tr a n s p o r ta ti o n at their home in B elton, which L aRocc a did not acc ept. L aRocc a disag ree d, stating tha t Ra y mond and Rebec ca never made such an offe r. L aRocc a instead testified that they moved her and Worley ’s belong ings out of their home beca use the Depa

rtment told them that L aRocc a and Worley could not live with them if Ray

mond and Rebec ca w ished to be consider ed as a place ment for R.W. 6 Shortly there afte r, the court order ed a home study on the home of L aRocc a’s pare nts, Gina and J avier Guer

ra, to evalua te their home as a possible place ment option. Acc ording to Gar cia, the study was perf

orm ed i n De ce m b er 2008, and the home was approve d on the conditions that

Gar cia testified that a home study was never completed on Ray mond and Rebec ca beca

use 6 they kept a pe t pit bull in their home. 5(1) R.W
. be medically cl ea re d t o m ake the trip and (2) that the Guer ras be able to prove to the 7 Depa rtment that they could provide for all of R .W.’s medical needs, i ncludin g p ro d u ci n g a li st of doctors in the Br ownsville are a that had ag ree d to take R.W
. as a patient. Gar cia testified that Gina did not g ive her a list of proposed Br ownsville doctors until n ea rl y a y ea r afte r the home study
. Gar cia further testified to h er co n ce rn that beca use Gina and L aRocc a attended so few doctor’s a ppointments and visitations , the Guer ras we re not e quipped to provide R.W
. with a safe home environme nt.
Fam ily Service

Plan I n September 2008, the court ad o p t ed a family service plan, develope d by the Depa rtment, L aRocc a, and her family
. Wit h the g oal of reunify ing L aRocc a and R.W ., the plan set out a number of tasks for her to acc omplish befor e reunific ation could occur . The plan require d her to: (1) compl et e p ar enti ng classes; (2) continue taking classes toward her associate ’s deg ree ; (3) participate in individual thera py ; (4 ) t ak e any and all nece ssary educational classes and obtain advice from m ed i ca l s t aff to educate, prepa re, and implement the car e neede d to ensure R.W .’s development and g rowth; (5) be sensitive to the specia l needs a nd car e nec essar

yfor R.W.’s wellbeing ; (6) stay involved with the curr ent car e and p ro gre s s of R.W
. throug h constant contac t and communication with car eg ivers and medical staff; (7) p ar t i ci p ate in a psy cholog ical evalua tion; (8) de monstrate the a

bility to meet R.W.’s basic needs a nd ensure safe ty of the child; ( 9) maintain
a stable job; and (10) maintain a stable and safe home suitable for R.W
. L aRocc a testified that she has followed the family service plan’s instructions and has don e ever y thing the Depa

rtment has
Acc ording to Gar cia, R.W
. was not medically cleare d t o t ra v el to Br ownsville until the 7 wee k befor e trial. 6asked her to do, including obtain a psy cholog ical evalua tion and attend reg ular thera py sessions. At trial, the Depa

rtment took t h e position that L aRocc a had failed to make satisfac tory prog ress, particula rly with reg ard to providing for R.W.’s safe ty and medica l needs. At an Aug ust 28, 2008 hear ing, the court allowed L aRocc a and her mother, Gina, one hour per wee k of supervised visitation time and eventua lly allowed Melody to supe rvise visits. I n May 2009, L aR o cc a wa s allowed an unlimit ed number of visits and in J une 2009 was g rante d unsupervised visits.

R.W
. was in the Depa

rtment’s custody for sevente en months befo re trial, during which L aRocc a vis ited him six teen tim es, t otaling approxim ately 30 hours. I n t h at t i m e, she also attended one appointment with Dr. Asbury , R.W .’s pediatric ian, one appointment with Dr. Aronin, R
. W
. ’s n eurosur g eon, one helmet-fitting appointment, and one thera py appointment. Gina
acc ompanied L aRocc a to most o f t h e visits and doctor’s appointments that L aRocc a attended. L aRocc a did not visit R.W
. in the hospital for either of his two major surg erie s, nor did she call any one for an update on her son’s condit i o n . Acc ording to Gar cia, the only communication from the Guer ras reg arding the surg erie s was a call from Gina to Gar cia four day s afte r the J u ly 2009 surg ery . L aRocc a testified that she visited R.W
. as often as was possible, but could only aff ord the $250-$300 trip approximately once a month. She also stated that it was difficult for her to g et time off f rom her job a s a sec urity

g uard, w hich she he ld from Novembe r 2008 to May 2009. Gar cia testified that L aRocc a called her for a n update a

pproxi mately

once a m onth fo r t h e fi rst y ear R.W
. was in foster car e and beg an calling more fre quently in Augus t o r September 2009. Whil e L aRocc a claimed that problems co n t acting Melody and Gar cia made it difficult to schedule visits or rec eive updates, Gar cia, Melody , and Shannon Bloxham, R
. W.’s
7g uardia

n ad litem, a ll testified that they made delibera te eff orts to communicate with L aRocc a and keep her in fo rm ed. L aRocc a also stated t hat s he was not informed of medical appointments until afte r they had occur

red, though both Gar cia and Bloxham testified to informi n g L aR o cca of
numerous appointments ahea d of time, many of which L aRocc a did not attend. Gar cia and Melody expressed conce rn that despite their eff orts, L aRocc a did not rea ch out to them and did not initiate contac t ever

y two wee ks as the family s er v i ce p l an require d, even when phone calls wer e schedule d in advanc e.

The family service plan also require d L aRocc a to take any classes nece ssary to lear n about R.W.’s medical needs and to “ stay involved with c urre nt c are and prog ress of R.W. throug h constant contact with car eg ivers and medical staff.” Dr. Aronin testified that she g ave L aRocc a a pamphlet and a website containing information about her son’s injuries when she came for R.W .’s
v i s i t
. Thoug h L aRocc a claims Dr. Aronin told her she could find all the information she nee d ed online, Dr. Aronin testified that the pamphlet and website wer e not enoug h to fully inform L aRocc a. She stated that pare nts lear n how to car e for a child like R.W
. throug h attending the child’s doctor’s appointments and asking questions, becaus e t h er e are no pare nting classes available specific to R.W .’s needs. Gar cia testified that though neither t h e De p ar t ment nor any doctors preve nted L aRocc a from calling R.W .’s doctors direc tly or attending any of R.W .’s appointments, she attended no more than one appointment with e ach doctor. L aRocc a did not ask questions during any of the four doc tor’s visits she did attend.

The Depa rtment allege s that beca

use of this lack of commitment to learning about R.W .’s condition and car e, L aRocc a d o es n ot have the knowledg e or understanding nece ssary to provide a safe home environment for her son. This inability to m ed i cally car e for R.W
. was 8evidenc ed, accor ding to the Department, during L aRocc a and Gi n a’ s fi rst unsupervised visit with

R.W
. in September 2009. During the visit, L aRocc a and Gina chang ed R.W .’s clothes from a t-shirt, shorts, and no socks to a t-shirt, jeans, and socks while at the mall. After the visit, Melody noticed t h at R
. W
. wa s not acting himself, and his neurolog ist stated at trial that he believed R.W
. beca me overhe ated and suffe red a seizure during L aRocc a’s visit. Neither L aRocc a n o r Gina noticed any

thing abnorma l, and L aRocc a testified that she did not think the seizure o cc u rr ed while in her c are .

Thoug h Gar cia stated that she had previously g iven instructio n s t o L aRocc a emphasizing the importance of monitoring R.W
. for overhe ating , L aRocc a admitted that prior to the September 2009 visit, which occur red over a y ear afte r R.W .’s injuries, she did not understand that if R.W
. g ot too hot, he may have a seizure. Gar cia testified that L aRocc a had not taken the nece ssary steps to assure R.W .’s safe ty
. She said that afte r t h e incident, L aRocc a seeme d very defe nsive, stating, “I don’t know how jeans can cause a seizure. I can dress my child in whateve r I want. I f I want him to run around naked, I ’ll do that
. . . . ” After the visit and on R.W .’s neurolog ist’s
rec ommendation, the court reduc ed L aRocc a’s v i s i t ati on to one two-hour unsupervised visit per month, with any

additional supervised visits to be g rante d at the De partment’s discr etion. At the end of 2009, the Depa rtment modified its plans fr o m rec onciliation to termination on the grounds that L aRocc a knowing ly place d R.W . in conditions which endang ere d his phy sical or emotional well-be ing, constructively abandone d R.W ., and failed to comply with the family service plan. See Tex. Fam. Code Ann. § 161.001(D), (E), (N), (O) (West Supp. 2009). The De p artment alleg es that L aRocc a failed to seek the information nece ssary to lear n about R.W .’s medical needs and proper car e, failed to maintain constant contac t and communication with R.W .’s
9car eg ivers and medical staff, and did not demonstrate that s h e co u l d meet R.W .’s basic needs or

cre ate a safe home for him. The jury found that both L aRocc a’s and Worley ’s pare ntal rig hts should be terminated, and L aRocc a appea ls, challeng ing the leg al and fac tual sufficie ncy of the evidenc e.
STANDARD OF REVIEW I n revie w in g the evidenc e for leg al sufficie ncy in pare ntal termination case s, we must look at all the evidenc e in the light most favorable to the jury ’s finding and deter mine whether a
rea sonable trier of fac t could have formed a firm belief or conviction that the g rounds for termination
wer e proven. In re J.F.C. , 9 6 S
. W
. 3 d 256, 266 (Tex. 2002). We must assume that the factfinder resolved any disputed fac ts in favor of its finding if a rea sonable fac tfinder could have done so, and disreg ard all evidenc e that a rea sonable fac tfinder could have disbelieved or found to be incre dible. Id. We may not substitut e our j u d gm en t fo r the jury ’s, and we must defe r to the jury ’s deter minations of the cre dibilit y o f t h e witnesses, the weig ht to be g iven the testimony , and the resolution of evidentiar

y conflicts. City of

Keller v. W

ilson , 168 S.W .3d 802, 819, 822 (Tex. 2005). Evidence is fac tually sufficie n t i n termination case s if the evidenc e is such that a fac tfinder cou l d rea sonably form a firm belief or conviction about the truth of the Depa rtment’s alleg ations. In re C.H. , 89 S.W .3d 17, 25 (Tex. 2002). T h i s s t an dard “re tains the defe renc e an appellate court must have for the fac tfinder’ s role.” Id. at 26. I n a factual-suf ficienc y revie w, we may not pass upon the witnesses’ cre dibilit y or substitut e our judgme nt f or that of the jury , even if the evidenc e would support a differ ent result. Landry’s S ea f ood House-A ddison, Inc. v. Snadon , 233 S.W .3d 430, 436 (Tex. App.—Dallas 2007, pe t. denied).

10DISCUSSIO N I n order for a court to terminate pare ntal rig hts, the Depa rtment must show, by clea r and convincing evidenc e, that at least one of the twenty statutory g rounds for termination applies and that termination is in the best interest of the c hild. Tex . Fam. Code Ann. § 161.001.

The jury was asked whether L aRocc a’s pare ntal rig hts should be terminated under sections 161.001(1)( D), (E), (N), or (O) of the Texas Family Code. Sections 161.001(1)( D) and (E) allow for termination i f i t is found that the pare nt (1) knowing ly place d the child or knowing ly allowed the child to remain in conditions which endang er the phy sical or emotional well-be ing of t he child, or (2) eng ag ed in conduct or knowing ly place d the child with persons wh o en gage d i n conduct which endang ers the phy sical or emotional wel l- b e in g of the child. Id
. § 161.001(1)( D), (E). Section 161.001(1)( N) sets out constructive abandonme nt a s a g r o u n d f o r te r mi n a ti o n , r e q u ir ing clea

r and convinc ing e vidence that a par ent has constructively abandone d the child who has be en in the perma nent or temporar

y manag ing conser

vatorship of the Depa

rtment for not less than six months, and (1) the Depa

rtment has made r easona

ble ef forts to retur

n the child to the pare nt, ( 2) the pare nt h as not reg ularly visited or maintained signific ant contac t with the child, and (3) the pare n t h as demonstrated an inability to provide the ch ild with a safe environment. Id. § 161.001(1)( N). Section 161.001(1)( O) allows for termination for a pare nt’s failure to comply with the provisions of
a court o rd er t h at est ablished the actions nece ssary for the return of a child remove d by the Depa rtment due to abuse or neg lect. Id . § 161.001(1)( O). I n a termination case , it is appropr iate to submit the termination question to the jury in the form of a broad- form question. Trevino v. Texas Dep’ t of Protective and Regulatory Servs. , No. 03-01-00038-CV, 2002 Tex. App. L EXI S 1347, at *6 (Tex. App.—Austin 2002, pet. denied)
11(citing Texas Dep’ t of Human Servs. v. E.B. , 802 S.W .2d 647, 649 (Tex. 1990)). When a broad- form question is submitt ed, we must uphold the jury ’s fin d i n g s if any g round for termination supports the finding s. Id. (citing In re M.C.M. , 57 S.W .3d 27, 32 (Tex. App.—Houston [1st Dist.] 2001, no pet.)).

L aRocc a arg ues that the evidenc e is neither leg ally nor fac tually sufficie nt to support termination based on any of the g rounds submitt ed to the jury , and that the evidenc e is insufficient to support the finding that termination is in the best interest of R.W.
Const ructive Abandonm ent Be cause the Depa

rtment relied heavily on constructive abandonme nt as a g round for termination both at trial and on appea l, we will addre ss it first. To prove constructive abandonme nt, the Depa rtment was require d to show that it made rea sonable eff orts to return R.W
. to L aRocc a, that L aRocc a did not reg ularly visit or maintain signific ant contac t with R.W ., that she has demonstrated
an inability to provide R.W
. with a safe home environment, and that R.W
. was in the Depa rtment’s custody for at least six months, a fac t that is undisputed. See Tex. Fam. Code Ann. § 161.001(1)( N).

T h e Depa rtment prese nted testimony sug g esting that it made rea sonable ef fo rt s t o
re t u rn R.W
. to L aRocc a. Gar cia testified that the Depa rtment g ave L aRocc a many chanc es t o become involved with R.W .’s medical car e and lear n the information neede d to car e for R.W
. She further testified that had L aRocc a reg ularly visited R.W ., she would have been g iven more time with her son and may have been elig ible for a “monitor and return,” when a child is place d back with the pare nts while still in the Depa rtment’s custody

and monitored for

prog ress.

12To prove that L aRocc a did not visit reg ularly or maintain s i gn i fi cant contac t with

R.W ., the Depa

rtment prese nted evidenc e t h at L aR o cca visited R.W
. only six teen times in sevente en months. She failed to visit R.W
. afte r either of two major surg erie s, attended four out of
over one hundred doc tor’s appointm ents, and called for news of her son only once a month for an entire y ear . Gar cia testified that, in her opinion, L aRocc a did not reg ularly visit R.W
. nor did she maintain signific ant contac t with him. Bloxham ag ree d, testify ing that L aRocc a’s six teen visits do not constitute signific ant contac t g iven the circ umstances. T h e Depa rtment also prese nted the testimony of an attachme nt e x pert, J anie Cravens, who stated that, based on the ag e of R.W
. when he wa s removed a

nd the number a

nd leng th of visits, not only is R.W . not emotionally attache d to L aRocc a, he is likely not e ven familiar enoug h to r ecog nize he r. Cravens further testified that one hour per wee k, L aRocc a’s allotted visitation, would have cre ated a familiarity in the rela tionship not prese nt in her less-than-monthly visits. Whil e we acknow ledg e both the difficulties L aRocc a fac ed in visiti ng R.W
. and her testimony that she saw her son as often as possible, we must conclude that the evidenc e is leg ally and fa ct u al l y sufficie nt to find that L aRocc a failed to reg ularly visit or maintain contac t with R.W
.

The Depa rtment also prese nted testimony sug g esting that L aRocc a demonstrated an inability to ma intain a safe home environment for R.W . Gar cia testified tha t she felt re unification risked phy sical harm to R.W
. due to L aRocc a’s lack of knowledg e and understanding reg arding his
car e. Bloxham testified that she has not seen a dedica tion to R.W
. in her interac tions with L aRocc a. Dr. Ar onin testified t hat R .W.’s car eg iver “has t o be knowledge able enoug h and aw are enoug h of him to be able to know whe n things a re g oing w rong . . . . You have to know [R .W.] and y ou have to be awa re of chang es in his behavior .” She stated that R.W
. needs a car eg iver who will not only 13g et him to his various appointments, but will also prac tic e h i s p h y sical, occupational, and speec h

thera p y ex er cis es at home. Acc ording to Dr. Aronin, R.W .’s prog ress is depende nt on at-home continuation of exercises done during thera py and require s assistance and stimul ation beca use R.W
. is “starting out life with . . . max imum deficits . .
. and so he can’t be just put i n a cr ib and sat in a
corne r and just fed wh en h e cr i es and chang e his diaper
. He needs somebody who is g oing to be doing the things and following throug h with what the thera pists are doing.” Dr. Aronin testified that she was conce rned t h at L aR occa and Gina did not fully understand the implications of R.W .’s injuries and the signific ant car e he will need for the rest of his life. The Depa rtment also prese nted evidenc e that at the he aring s prior to trial, the cour t ordere d R.W . to remain in foster car e bec ause “neither the child’s pare nt(s) nor any other pe rson . . . is willing and a ble to provide the child with a saf e envir onment.”

L aRocc a cites In re A.S. , 261 S.W .3d 76 (Tex. App.—Houston [14t h Dist.] 2008, pet. denied) , in support of her claim that courts have been reluc tant to find constructive aband o n ment when pare nts make an eff ort to maintain contac t wi t h their children. A.S. , howeve r, is distinguishable from the prese nt situation beca use the mother in that case was preve nted from seeing her children due to incar ce ra t i o n . Id
. at 89. Whil e the mother i n A.S. could not visit her children from jail, she testified that she reg ularly visited them prior to becoming incar cer ated, wrote to them often while in ja il, a

nd provided the depar

tment with a list of alterna te car eg ivers for the children. Id
. De s p ite her lack of contac t with the children during her incar cer ation, the trial court fo u n d insufficient evidenc e of constructive abandonme nt. Id
. Her e, L aRocc a was not preve nted from 8

The A.S. court found that the evidenc e was sufficie nt to support the trial court’s finding that 8 the fa ther fa iled to maintain contact whe n he only visited his children once in three months bef ore 14seeing her son due to incar cer ation, nor did she exhibi t the same level of persistenc e in maintaining

contac t as that shown by the mother in A.S. Additionally , we can distinguish this case from A.S. in that Dr. Aronin, Melody , and Gar cia all testified that R.W
. ’s fr ag ile medical state require s much
more pare ntal involvement, attention, and training than a non-injured child. The children in A.S.
wer e hea lthy

and did not require this heighte ned medica l car e. Thoug h we rec og nize that L aRocc a made what appear to be g ood-fa ith eff orts to comply with the family service plan and provide for the needs of her son, the jury was entitled to find that these g oo d intentions wer e outweig hed by evidenc e that L aRocc a is unable to provide for R.W .’s medical needs and maintai n a s af e h o me environment. L ooking at the evidenc e in the light most fa v o ra b le to the jury ’s verdic t, we conclude that the evidenc e was leg ally sufficie nt to support constructive abandonme nt as a g round for termination. Viewing the evidenc e in a neutra l light, as
we must in a fac tual-suffic iency revie w, the evidenc e in L aRocc a’s favor —the six teen visits and f o u r d o c to r ’s appointments attended—w ould not preve nt a rea sonable fac tfinder from forming a f ir m belief or conviction that L aRocc a constructively abandone d R.W
. As a result, we h o l d that the evidenc e is fac tually sufficie nt to deter mine that statutory g rounds exis t for terminating L aRocc a’s pare ntal rig hts under par

t (N) of family code se ction 161.001(1). As only one g round is require d to support a termination of pa renta l r ights, we need not addre ss L aRocc a’s arg uments challeng ing the sufficie ncy of the evidenc e reg arding subsections (D), (E), and (O) of section 161.001(1) of the family code. See In re DM , 58 S.W .3d 801, 813 (Tex.

becoming incar cer ated. In r e A

. S. , 261 S.W .3d 76, 89 (Tex. App.—Houston [14t h Dist.] 2008, pet. denied)
. The differ ence , it seems, lies in the amount of contac t eac h pare nt had with the children prior to incar cer ation. 15App.—For t Worth 2001, no pet.) (decl i n i n g t o addre ss other grounds after upholding termination on one g round under

section 161.001(1) ).
Best Int erest of the Child I n addition to a predic ate g round for termination, the Depa rtment must also establish by clea r and convincing evidenc e that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(2). Nonexclusive fac tors that the trier of fac t may use in deter m i n i n g the best interest of the child include: (1) the desires of the child; (2) the emotional and phy sical needs of the child now and in the future; (3) the emotional and phy sical dang er to the child now and in the future; (4) the pare ntal abilities of the individuals seeking custody ; (5) the prog rams available to assist these individuals to pr omote the best interest of the child; ( 6) the plans for the child by these individuals
or by the ag ency

seeking custody ; (7) the stability of the home or proposed place ment; ( 8) the acts
or omissions of the pare nt which may in dicate that the exis ting pare nt-child rela tionship is not a proper one; and (9) any excuse for the acts or omissions of the pare nt. Holley v. Adams , 544 S.W .2d 367, 371-72 (Tex. 1976). These fac tors are not exhaustive, and some may be inapplicable in cer tain
case s. Id. The Depa

rtment need not prove all of these fac tors t o p rove by clea r and convincing evidenc e that ter

mination is i n the child’s best interest. In re C.H. , 89 S.W .3d at 27. Evidenc e of
one fac tor may be sufficie nt to support a finding of termination. In re J.O.C. , 47 S.W .3d 108, 115 (Tex. App.—Waco 2001, no pet.).

L aRocc a arg ues that there is no evidenc e to support the jury ’s fi n d in g that termination
wa s in R.W .’s best interest beca use L aRocc a had taken a pare nting class, obtained informatio n reg arding R.W .’s specia l needs, and had cre ated a plan to car e for R.W
. in Br ownsville. Dr. Aronin, 16Gar cia , an d Bloxham, howeve r, all testified that termination of L aRocc a’s pare ntal rig hts was in

R.W .’s best int er es t
. Dr. Aronin testified that the Cowg ers are “outstanding ,” very attentive and involved, and that R.W
. is happy in t h ei r ca re . She also testified that R.W .’s best chanc e of obtaining his maxi mum potential would be in the car e of the C o wger s. Gar cia testified that termination was in R.W.’s best inter est beca use he has formed a

bond with the Cowg ers, that they have alway s taken excellent car e of him, and that he would be safe there
. She further stated that she g ave L aRocc a many chances t o m aint ain contac t, keep up with doctor’s appointments, and become educated reg arding R.W .’s condition, but that she failed to show prog ress in le arning how to properly

car e for R.W
. Bloxham testified that she believed it was in R.W. ’ s b e s t inte rest to terminate pare ntal rig hts beca

use if he is adopted, he will rec eive Medica id and specia l service s. She further stated that adoption would cre ate pe rmane ncy for R.W. that would not exis t if R.W . rema ined in the custody of the Depa

rtment. She testified that she had not seen the commitment from L aRocc a and Gina
nece ssary for rec onciliation or place ment in the Guer ras’ home to be in R.W .’s best interest. Finally , J anie Cra vens, the a ttachment expert, testified that R.W
. showed fourtee n out of eig hteen mar

kers of attac hment with the Cowg ers a nd that they

are attuned and r esponsive to R.W. Whil e the jury may no t terminate pare ntal rig hts mere ly beca use a child might be better off living elsewhe re, see D.M. , 58 S.W .3d at 814, viewing the fac ts in the light most favor able to the jury ’s finding , evidenc e exis ts sug g esting that L aRocc a lacks the experience and knowledg e
nece ssary to provide for R.W .’s needs and that termination is in R.W .’s best interest. Fur thermore , considering the evidenc e and l ea ving matters of cre dibilit y to the jury , a trier of fac t could have

17rea sonably found by clea r and convincing evidenc e that termination was in R.W .’s best interest. For these rea sons, w e cannot hold tha t the jury ’s finding reg arding R.W .’s best intere st is unsupported by the evidenc e.

Having car efully revie we d the entire rec ord, we conclude that the evidence is both leg ally and fac tually sufficie nt to support the jury ’s finding s that (1) statutory g rounds for termination exist under se ction 161.001(1)( N) a nd (2) ter mination is i n the child’s best intere st.
CONCLUSION Be cause the evidenc e is leg ally and fa ctually

sufficie nt to support the jury ’s finding terminating L aRocc a’s pa renta l rig hts, we af

firm the trial c ourt’s orde r of ter mination.

__________________________________________ Diane M. H enson, Jus tice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: Nove mber 4, 2010

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