Leslee Lanphier, R. N., and Rebecca Francis, R. N. v. Tania Avis, A/K/A Tania Greer

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-07-00074-CV ______________________________ LESLEE LANPHIER, R.N., AND REBECCA FRANCIS, R.N., Appellants V. TANIA AVIS, A/K/A TANIA GREER, Appellee On Appeal from the 5th Judicial District Court Cass County, Texas Trial Court No. 06-C-594 Before Morriss, C.J., Carter and Moseley, JJ. Opinion by Justice Moseley O P I N I O N Nurses Leslee Lanphier, R.N., and Rebecca Francis, R.N., appeal from the trial court's denial of their motion to dismiss Tania Avis's (a/k/a Tania Greer) claims against them. The nurses rely on Section 101.106(f) of the Texas Civil Practice and Remedies Code in maintaining that the trial court should have dismissed Avis's claims since those claims could have been brought against the nurses' employer, a governmental entity. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2005). We disagree with their position and affirm the trial court's order denying the nurses' motion to dismiss. I. JURISDICTION As a preliminary consideration, we note that the parties have raised the issue of this Court's subject-matter jurisdiction to review this interlocutory order. We also note an express disagreement exists among intermediate courts of appeals pertaining to the issue of whether this Court would possess the jurisdiction to review this order. The courts concluding that jurisdiction exists look to Section 51.014(a)(5) of the Texas Civil Practice and Remedies Code, which provides that "[a] person may appeal from an interlocutory order of a district court, county court at law, or county court that . . . denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state." Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon Supp. 2007). The concern surrounding the application of Section 51.014(a)(5) to the instant case is the obvious distinction between the procedural vehicles involved; this appeal does not come to us as an appeal from the denial of a motion for summary judgment, but as an appeal from an order denying a motion to dismiss. (1) The Houston-Fourteenth court addressed this issue and concluded that Section 51.014(a)(5) is not limited to cases involving only one specific procedural vehicle. See Phillips, 187 S.W.3d at 674. In arriving at this conclusion, Phillips relied on Texas Department of Criminal Justice v. Simons, 140 S.W.3d 338 (Tex. 2004). Simons construed a different subsection of Section 51.014(a), i.e., subsection (a)(8), which provided for interlocutory appeals in which a governmental unit's plea to the jurisdiction was denied. Id. at 349. The Simons court concluded that Section 51.014(a)(8) was not limited to the review of cases in which the trial court denied a claim of sovereign immunity through one particular procedural vehicle. In doing so, it stated that, "[A]n interlocutory appeal may be taken from a refusal to dismiss for want of jurisdiction whether the jurisdictional argument is presented by plea to the jurisdiction or some other vehicle, such as a motion for summary judgment." Id. Rather, Simons directed courts to look to the substance of the argument rather than the title of the procedural vehicle in a "substance over form" kind of reasoning. Id. Phillips pointed out the obvious distinctions between subsections (a)(5) and (a)(8), but noted that the fundamental issue was the same: essentially, whether jurisdiction over an interlocutory appeal was affected by the type of vehicle used to assert immunity. Simons appears to answer that question in the negative. This position is reflected elsewhere as well. The Texas Supreme Court interpreted Section 51.014 as granting jurisdiction for the appeal irrespective of the procedural vehicle employed in asserting a claim of immunity: "If the trial court denies the governmental entity's claim of no jurisdiction, whether it has been asserted by a plea to the jurisdiction, a motion for summary judgment, or otherwise, the Legislature has provided that an interlocutory appeal may be brought." Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Sister courts have expressly agreed with Phillips. See Kanlic v. Meyer, 230 S.W.3d 889 (Tex. App.--El Paso 2007, pet. filed); Tex. Dep't of Agric. v. Calderon, 221 S.W.3d 918 (Tex. App.--Corpus Christi 2007, no pet.); Walkup v. Borchardt, No. 07-06-0040-CV, 2006 Tex. App. LEXIS 10333, at *1 n.1 (Tex. App.--Amarillo Nov. 30, 2006, no pet.) (mem. op.). The Dallas court, however, has recently taken the opposite stance on this jurisdictional issue. See Hudak v. Campbell, 232 S.W.3d 930, 931 (Tex. App.--Dallas 2007, no pet.). First, the Hudak court correctly noted that Section 51.014(a), while granting limited jurisdiction to review interlocutory orders, should be strictly construed. The court then focused on the fact that the appellant sought review of a denial of a motion for summary judgment as specified in Section 51.014(a)(5). See id. In determining that the Phillips decision represented "an inappropriate extension" of the appellate court's statutory jurisdiction, the Dallas court emphasized that it looked beyond the simple title of the motion at issue in that case and examined "the nature of the motion," explaining that the motion at issue did not comply with the strict procedural safeguards associated with a motion for summary judgment. See id. We are more persuaded by the reasoning in Phillips and the Texas Supreme Court's position in Simons and Sykes. The substance of the nurses' argument is based on an assertion of immunity by individual employees of a governmental unit, precisely the substance at which Section 51.014(a)(5) aims. The fact that the nurses followed the directive of the applicable provision of the statute (as it is worded) by asserting that claim in the form of a motion to dismiss should not preclude review of their claim of immunity. We conclude that we have jurisdiction to consider the nurses' interlocutory appeal pursuant to Section 51.014(a)(5). II. FACTUAL AND PROCEDURAL HISTORY A. Identification of Parties Lanphier and Francis were nurses at Atlanta Memorial Hospital (AMH), a governmental entity. Avis was an expectant mother in September 2004. When, at full term, she began experiencing labor pains accompanied by a high fever and nausea, she sought treatment at AMH, was admitted to the labor and delivery department, and was administered antibiotics. The AMH staff ceased hearing fetal heart tones after five to six hours of labor. A sonogram and, according to medical records, a scalp electrode also failed to find any signs of fetal cardiac activity. (2) Approximately eight hours after Avis arrived at the hospital, a stillborn fetus was delivered by cesarean section. B. Claims Against the Nurses Avis filed suit against several parties on September 15, 2006, alleging healthcare liability claims pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code. Her petition set forth the following facts: Tania Greer was a 27 year old lady without any living children when she found out she was pregnant. She received her prenatal care at Ellington Memorial Clinic. On September 15, 2004, she was admitted to Atlanta Memorial Hospital because she was in labor and was leaking amniotic fluid. She was approximately 40 weeks gestation. She had vomited at home and had a fever of 100.6. Her fever went up to 103.7. Her physicians (Dr. Matthew Hogan and Dr. Richard Hozdic, II, M.D.) and nurses (Leslee Lanphier, R.N. and Rebecca Francis, R.N.) allowed her labor to proceed over the next eight (8) hours even though her fetal monitor strip showed that her baby was in distress. They never inserted a fetal scalp electrode. At approximately 8:50 a.m., the nurses were unable to locate fetal heart tones. A cesarean section surgery was performed by Dr. Hogan and Dr. Hozdic, and Tania Avis was informed that her baby was dead. A timely delivery would have allowed Tania Greer's baby to survive. In pertinent part, Avis sued Lanphier and Francis for damages based on alleged negligence and failure to properly carry out their nursing responsibilities. Specifically, Avis alleged: By reason of the facts set forth above, Defendant LANPHIER was negligent in failing to properly carry out her nursing responsibilities to Plaintiff and/or her baby in accordance with accepted standards of medical and/or nursing practice, thereby proximately causing injuries and damages to Plaintiff. Defendant LANPHIER'S negligence was solely due to her failure to act. . . . . By reason of the facts set forth above, Defendant FRANCIS was negligent in failing to properly carry out her nursing responsibilities to Plaintiff and/or her baby in accordance with accepted standards of medical and/or nursing practice, thereby proximately causing injuries and damages to Plaintiff. Defendant FRANCIS' negligence was solely due to her failure to act. The nature of the claims against Lanphier and Francis is important because it will become central to the question whether Avis could have brought those claims against AMH. C. Denial of Motion to Dismiss Pursuant to Section 101.106(f) On December 27, 2006, Lanphier and Francis filed their motion to dismiss based on Section 101.106(f). Avis responded to that motion on February 21, 2007. The trial court heard the motion on February 22, 2007. On May 18, 2007, the trial court signed its order denying the nurses' motion to dismiss; in the very comprehensive order, the trial court concluded that Avis had failed to allege facts which would invoke the waiver of AMH's sovereign immunity. Appealing that order, the nurses maintain that they are entitled to dismissal pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). III. APPLICABLE LAW A. Section 101.106(f) The section on which Lanphier and Francis rely in their position provides as follows: If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed. Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). To be entitled to dismissal under Section 101.106(f), a defendant must show that the plaintiff's suit both (1) was based on conduct within the general scope of the defendant's employment with a governmental unit and (2) could have been brought under the Texas Tort Claims Act (TTCA) against that governmental unit. (3) See Williams v. Nealon, 199 S.W.3d 462, 466 (Tex. App.--Houston [1st Dist.] 2006, pet. filed); Phillips, 187 S.W.3d at 675. Here, we focus on the latter of the two requirements of Section 101.106(f): whether Avis could have brought this suit against AMH. We must, therefore, examine the TTCA's application to these facts to determine whether Avis could have brought her suit against the nurses' employer, AMH. B. Connection to Texas Tort Claims Act: Section 101.021(2) Lanphier and Francis contend that Avis could have relied on Section 101.021 of the Texas Civil Practice and Remedies Code to bring these claims against AMH. They contend that Avis's allegations go to the nurses' improper reading and interpretation of the instruments, and, in doing so, allege misuse of tangible personal property, a misuse for which Avis could have sued AMH under the TTCA. Section 101.021 imposes liability against a governmental unit for personal injury or death caused by a condition or use of tangible or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2005). To best determine what qualifies as condition or use of tangible personal property, we have reviewed several cases that have examined Sections 101.021(2) and 101.106(f), observing that petitions seeking discretionary review of a number of those cases are pending in the Texas Supreme Court. C. Determining Whether Injury Was Caused by Use of Tangible Property Many cases examining Section 101.106(f) rely on Phillips, in which a breast cancer patient sued for breach of fiduciary duty, fraudulent concealment, and negligence. 187 S.W.3d at 672. The defendant physicians moved to dismiss pursuant to Section 101.106(f). Id. After concluding that Section 51.014(a) permitted the court to exercise jurisdiction over the appeal, the Houston-Fourteenth court reviewed the trial court's denial of the physicians' motion to dismiss by determining whether the plaintiff could have brought suit against University of Texas Medical Branch (UTMB) pursuant to Section 101.021(2)'s waiver of immunity for injuries caused by use of tangible property. Id. at 676. The court concluded that the substance of the plaintiff's claims was the physicians' intentional or negligent failure to communicate a diagnosis to her. Id. at 676-77. Relying on University of Texas Medical Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994), and Salcedo v. El Paso Hospital District, 659 S.W.2d 30, 33 (Tex. 1983), the court pointed out that information about a medical condition is not considered tangible property. Phillips, 187 S.W.3d at 677. Since the physicians failed to show that the plaintiff's suit could have been brought against the state hospital, the trial court did not err by denying their motion to dismiss. Id. In Williams, the Houston-First court reversed the trial court's order granting the physicians' motion to dismiss, concluding that the physicians failed to show that the plaintiff could have brought the suit against the physicians' employer, UTMB: In his petition, Williams alleges that "Defendants violated the duty owed to Plaintiff to exercise the ordinary care and diligence exercised by other physicians and/or health care providers in the same or similar circumstances in connection with the subject treatment and was [sic] negligent." Such a claim is, quite simply, a claim of medical negligence and is not encompassed by the Texas Tort Claim Act's limited waiver of sovereign immunity. 199 S.W.3d at 466 (emphasis added). Since medical negligence was the basis of the claims against the physicians, the plaintiff could not have brought the suit against UTMB under the TTCA. Id. In support of its conclusion, the Houston-First court expressly aligned its position with that of the Houston-Fourteenth court's position in Phillips. Id. at 467. The facts in Franka v. Velasquez, 216 S.W.3d 409, 410-11 (Tex. App.--San Antonio 2006, pet. filed), dealt with injuries sustained by an infant during a complicated delivery. After having reviewed the petition and the evidence presented, the San Antonio court affirmed the trial court's denial of the physicians' motion to dismiss pursuant to Section 101.106(f). Id. at 413. The court pointed to the expert report's note of specific departures from the standard of care in the following respects: (1) failure to recognize risks of disorder, (2) use of continuous traction after problems were detected, (3) failure to use proper maneuvers, and (4) failure to provide the mother with sufficient information regarding the risks in the use of a vacuum extractor. Id. at 411-12. Although the physicians argued that the child's injuries were caused by use of tangible personal property (i.e., the vacuum extractor), the court was unconvinced, due to the fact that the vacuum extractor was not used after the head was delivered and all of the evidence showed that the injuries to the child occurred after the head was delivered. Id. at 411. After the head was delivered using the vacuum extractor and during the time at which the injuries were sustained, the physicians used only their hands to deliver the infant. Id. Ultimately, the Franka court concluded that the claims against the physicians were claims of medical negligence and, therefore, could not be brought against the hospital under the TTCA; accordingly, the physicians were not entitled to dismissal under Section 101.106(f). Id. at 412. In Clark v. Sell, 228 S.W.3d 873 (Tex. App.--Amarillo 2007, pet. filed), the plaintiff sought damages on behalf of a patient who sustained injuries to his arm as he lay on that arm for a prolonged, drug-induced sleep. The plaintiff alleged that the injuries were caused because the three nurses in question did not "arouse," "fully assess," or "periodically turn" the patient. Id. at 875. The Amarillo court explained that the suit could not be brought under any available waiver provision of the TTCA: In other words, they supposedly neglected to perform certain medical services, and that neglect resulted in his injuries. Given the nature of her allegations, we see no nexus between the injuries in dispute and a premises defect, motor vehicle, or condition or use of property . . . . Id. Important in the Clark opinion is the apparent absence of a nexus between the use of tangible personal property and the injury which was sustained. It is not sufficient that a vehicle, premises defect, or piece of property simply be involved in some way; rather, one or another of these must be a proximate cause of the underlying injury. Id. at 874-75 (citing Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998), to support proposition that the property must proximately cause the injury for immunity to be waived). Since the nurses failed to satisfy the requirements of Section 101.106(f), the court affirmed the trial court's denial of the nurses' motion to dismiss. Clark, 228 S.W.3d at 875. When the parents of a deceased infant sued the physician, they alleged that the child's death was caused by the physician's failure to timely diagnose and treat the pulmonary hypertension which had been revealed by the diagnostic tests performed on the child. Turner, 232 S.W.3d at 418. They did not, as the Dallas court pointed out, contend that those tests were negligently performed. Id. The Dallas court rejected the physician's argument that, because he used tangible personal property in connection with the infant's diagnosis or treatment, the healthcare liability claim was caused by the use of tangible personal property such that it could have been brought against his employer under the TTCA. Id. at 418-19. The court concluded that the parents did not allege that their child was injured or killed by the physician's negligent use of tangible property. See id. at 419. Instead, the court concluded, the parents' allegations related only to the physician's diagnosis and treatment of the pulmonary hypertension. Therefore, the TTCA would not waive immunity for such claims to be brought against a governmental unit. Id. We see allegations that would fall within the TTCA's waiver in Tejada v. Rowe, 207 S.W.3d 920 (Tex. App.--Beaumont 2006, pet. filed), a case which involved medical care during the delivery of twins. Id. at 922. The trial court granted the physicians' motion to dismiss pursuant to Section 101.106(f). Id. During the thirty-fourth week of her pregnancy, Tejada was admitted into Park Place Hospital and diagnosed with pregnancy-induced hypertension and gestational diabetes. Id. Six days later, she was transferred to UTMB where she was given a drug to augment her labor. Id. Both children were delivered with the use of forceps and both were subsequently diagnosed with cerebral palsy. (4) Id. The mother's allegations were several: Tejada's petition asserted that Rowe and DeMay were negligent in failing to appropriately monitor and evaluate the fetal heart rates; failing "to accurately assess and intervene in a timely manner;" "failing to identify risk factors during labor;" "failing to monitor maternal and/or fetal condition;" "[i]nadequate patient assessment;" "failing to notify physician appropriately and/or in a timely manner;" "failing to properly and adequately supervise the nursing staff . . . ;" "failing to assign and provide an adequate nursing staff . . . ;" "failing to use sound nursing judgments;" and "permitting a resident or intern to deliver the bab[ies] without proper instruction, training or supervision[.]" Id. One expert report attributed the cerebral palsy to the "mechanical trauma and perinatal hypoxia suffered by them during delivery." Id. Another expert asserted that the physicians were negligent in performing a forceps rotation on [one infant]; failing to perform a cesarean section; failing to perform an episiotomy; failing to utilize appropriate anesthesia; performing a traumatic delivery; inappropriately responding to fetal heart decelerations and the presence of meconium; performing a breech extraction "with internal podalic version and forceps . . ." [on the other infant]; and augmenting Tejada's labor with Pitocin. . . . . The use of Pitocin increased the force of the uterine contractions to which these babies were being subjected. Pitocin should not have been used, nor should its dosage have been increased. In fact, its use should have been stopped. Id. at 922-23. The Corpus Christi court focused on the expert's assertions that the injuries were caused by the use of the drug Pitocin and by the use of forceps during the deliveries. Id. at 925. Both Pitocin and forceps are tangible personal property and, therefore, claims of injuries caused by them would fall within Section 101.021(2)'s waiver of sovereign immunity. Id. The trial court did not err by granting the physicians' motion to dismiss. Id. We also look to Kelso v. Gonzales Healthcare Systems, 136 S.W.3d 377 (Tex. App.--Corpus Christi 2004, no pet.). Kelso is in a different procedural posture than many of the preceding cases because it deals with a plea to the jurisdiction in a case brought against the governmental unit rather than its employees. 136 S.W.3d at 380. Kelso is valuable to our analysis, however, since we must determine, here, whether Avis could have brought suit against AMH. In dealing directly with Section 101.021(2), Kelso illustrates what must be alleged in order to bring a suit against a governmental unit under Section 101.021(2) for injuries allegedly caused by the condition or use of tangible property. The relevant claims in Kelso involved delayed treatment following results of an electrocardiograph (EKG) machine which indicated the patient was suffering from a heart attack. Id. The patient sued, alleging that the nearly two-hour delay in treatment caused permanent injuries and that the injuries were caused by the misuse of tangible personal property, i.e., the EKG machine. Id. After the trial court granted the hospital's plea to the jurisdiction, the patient appealed. The Corpus Christi court pointed out that, although "use" is undefined in the statute, the term "use" has been characterized as "to put or bring into action or service; to employ for or apply to a given purpose." Id. at 381-82 (citing Salcedo, 659 S.W.2d at 33). The court also discussed the Texas Supreme Court's distinctions between claims involving the failure to use tangible property and those involving the condition or use of tangible property. Id. at 382. Those claims involving failure to use tangible property will not waive sovereign immunity, while claims involving the condition or use of tangible property will effect a waiver. Id. (citing Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)). The Kelso court concluded that the allegations, as they were, did not bring the claims under the waiver provisions of the TTCA since the plaintiffs made no affirmative allegations that the EKG machine was incorrectly used or that its results were erroneous. Kelso, 136 S.W.3d at 382. The court reasoned that it was the misuse of the information produced by the EKG machine rather than misuse of the device itself that represents the proximate cause of the injury. Id. If the EKG machine is correctly used, any misuse of the information generated by it does not waive immunity under Section 101.021(2); information is not tangible property within the meaning of Section 101.021(2). Id. The suit could not be brought against the hospital under the TTCA, meaning that the trial court properly granted the hospital's plea to the jurisdiction. To illustrate the difficult distinctions to be made in this arena, we contrast Kelso with University of Texas Medical Branch Hospital at Galveston v. Hardy, 2 S.W.3d 607 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). In Hardy, the plaintiff alleged that the failure to properly monitor a cardiac monitor was the proximate cause of a patient's injuries and death. Id. at 608-09. While recovering from bypass surgery, the decedent "was connected to a cardiac monitor which was intended to monitor her heart's activity and signal an alarm if any problem occurred." Id. at 608. When the monitor signaled an alarm indicating heart stoppage, resuscitation efforts were not commenced until at least five minutes following the first alarm from the monitor. Id. at 608-09. The doctors were able to revive the patient, but not before oxygen deprivation left the patient on life support with severe brain damage. Id. at 609. The patient never regained consciousness and was eventually removed from life support systems. Id. The plaintiff brought a wrongful death and survival action against the hospital, alleging that the negligent use of the cardiac monitor was the proximate cause of the death of the decedent. Id. She alleged that the hospital's staff failed to properly oversee the monitor. Id. In affirming the trial court's denial of the hospital's plea to the jurisdiction, the court relied heavily on Salcedo, 659 S.W.2d at 33. The court concluded that the use of the cardiac monitor in Hardy, like the EKG machine in Salcedo, directly affected and impacted the person whose heart condition was being monitored. See 2 S.W.3d at 610. An important point seems to be that "[t]he cardiac monitor could only be effective . . . if it was properly monitored at all times." Id. The Hardy court continued: "Unfortunately, the person responsible for monitoring the cardiac monitor failed to do so, resulting in the death of the decedent from the very condition that the proper use of the cardiac monitor was intended to avoid." Id. A careful study of Kelso and Hardy reveals what may be the critical distinction between the two cases. In Kelso, the device generated information from which the doctor then had to make a diagnosis and plan a course of treatment. The apparent misinterpretation of the information would not qualify as use of tangible property within the TTCA. In Hardy, however, the purpose of the monitor was not necessarily limited to generating information. Rather, the monitor in Hardy was intended to signal complications and its purpose required that it be constantly monitored. In other words, the negligence in Kelso related to the proper interpretation, whereas the alleged negligence in Hardy was the failure to properly use the device for the very purpose it was intended. The distinction between the two fact circumstances seems so finite (an alarm on a monitor when a critical set of circumstances arises versus no alarm on an EKG machine to signal the examiner of the test results when irregularities are present) that the results appear to be in conflict. We believe the analysis in Kelso to be more persuasive. IV. ANALYSIS A. Standard and Scope of Review We apply a de novo standard of review because the issue in this case ultimately goes to the issue of sovereign immunity, a question of law. (5) See Sheth v. Dearen, 225 S.W.3d 828, 831 n.2 (Tex. App.--Houston [14th Dist.] 2007, no pet.); Sykes, 136 S.W.3d at 638. The burden is on the movant under Section 101.106(f) to point to facts evidencing that plaintiff's suit could have been brought against the governmental unit. Sheth, 225 S.W.3d at 830; Phillips, 187 S.W.3d at 677; Tejada, 207 S.W.3d at 923. The primary sources of those facts are the plaintiff's pleadings; however, other evidence is proper if relevant to the issue of waiver of sovereign immunity. Phillips, 187 S.W.3d at 676-77; Tex. Natural Res. Conservation Comm'n v.White, 46 S.W.3d 864, 868 (Tex. 2001); Franka, 216 S.W.3d at 412. In determining whether Avis has alleged facts that support a finding that sovereign immunity would be waived as to AMH, we look at the substance of the pleadings rather than Avis's characterizations of her pleadings. See Sheth, 225 S.W.3d at 830. B. The Substance of the Allegations Against the Nurses Avis's original petition claims that the nurses were negligent in failing to properly carry out their nursing responsibilities to Avis and her infant in accordance with accepted standards of medical and/or nursing practice. The petition limits the specific allegations against Lanphier and Francis to "negligence [as] solely due to [their] failure to act." Looking beyond these limitations and into the facts alleged in the petition (the record contains no expert report), we characterize the "real substance" of Avis's allegations against the nurses as follows: 1) "[the] nurses . . . allowed her labor to proceed over the next eight (8) hours even though her fetal monitor strips showed that her baby was in distress" Arguably, Avis comes closest here to alleging facts that would qualify as use of tangible property for purposes of the application of the TTCA. However, unlike the plaintiff in Hardy, Avis does not allege that the nurses failed to use the monitor. That is, Avis does not allege that the nurses failed to watch the monitor or that they used the monitor improperly. Nor does she allege that the injuries to her infant were caused by a device used during delivery. Rather, her allegations seem to fall more in line with those in Kelso in that she alleges that the nurses should have taken alternate actions based on the information generated by the monitor. No device used during the delivery is alleged to have caused the injury to Avis's infant, as was the case in Tejada. Since Avis's allegations here are more accurately characterized as allegations that the nurses took the wrong course of action based on the information from the monitor, we reiterate that information is not treated as tangible property under the TTCA: While the paper on which doctors and nurses may record information about a patient's condition is tangible in that paper can be seen and touched, information itself is an abstract concept, lacking corporeal, physical, or palpable qualities. Information thus, is intangible; the fact that information is recorded in writing does not render the information tangible property. York, 871 S.W.2d at 178-79; see Phillips, 187 S.W.3d at 676. Further, it is not enough that tangible property is simply involved in some way during the course of treatment; there must be a nexus between the injury and the property. See Miller, 51 S.W.3d at 588; Bossley, 968 S.W.2d at 342-43; Clark, 228 S.W.3d at 875; Kelso, 136 S.W.3d at 382. We find the following observation helpful: [T]he mere use of tangible personal property by [the doctor] in connection with his diagnosis and treatment of [the patient] does not mean the State has waived sovereign immunity for any health care liability claim arising from that diagnosis and treatment. To hold otherwise would render a governmental unit subject to suit any time a physician employed by it picked up a tongue depressor and examined a patient. Turner, 232 S.W.3d at 419. 2) the nurses "never inserted a fetal scalp electrode" There is a factual dispute here. The record suggests that AMH staff did use a fetal scalp electrode. The law is clear, nonetheless, that the failure to use a device is not misuse that would put the allegations within Section 101.021(2) of the TTCA. Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996); Miller, 51 S.W.3d at 587; Kelso, 136 S.W.3d at 382. 3) "[a] timely delivery would have allowed [the] baby to survive" Here, Avis seems to suggest that the staff should have performed a cesarean section sooner. This decision relates only indirectly to the use of any property and is similar in nature to the allegation examined in Williams and described as "quite simply, a claim of medical negligence . . . not encompassed by the [TTCA]'s limited waiver of sovereign immunity." Williams, 199 S.W.3d at 466. V. CONCLUSION The real substance of Avis's allegation against the nurses does not concern use of tangible property and, therefore, falls outside Section 101.021(2)'s waiver of sovereign immunity. That said, Avis could not have brought those claims against AMH, the nurses' employer. Since the nurses failed to establish that Avis could have done so, they failed to satisfy all elements of Section 101.106(f) and were not entitled to dismissal pursuant to that section. We overrule the nurses' contentions and affirm the trial court's denial of the nurses' motion to dismiss. Bailey C. Moseley Justice Date Submitted: October 31, 2007 Date Decided: January 10, 2008 1. The Houston-Fourteenth court also specifically addressed whether Section 101.106(f) confers immunity and concluded that it does. See Phillips v. Dafonte, 187 S.W.3d 669, 672-73 (Tex. App.--Houston [14th Dist.] 2006, no pet.) (relying on the reasoning in Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997) in which the Texas Supreme Court construed an earlier, differently-worded version of Section 101.106(f) as an immunity statute because it rendered a defendant immune from further action in matter). But see Rogers v. Bonnette, No. SA-04-CA-0118-XR, 2005 U.S. Dist. LEXIS 13497 (W.D. Tex. July 5, 2005, order), in which the court suggested that the rewriting of the statute eliminated the language from which the Newman court concluded that the statute conferred immunity to governmental employees. 2. Avis alleges that the staff failed to employ the use of a fetal scalp electrode. 3. Some cases have addressed Section 101.106(f) in three distinct parts: 1) was the individual an employee of a governmental unit, 2) was the employee acting within the scope of his or her employment, and 3) could the plaintiff have brought the suit against the employer. See Turner v. Zellers, 232 S.W.3d 414, 417 (Tex. App.--Dallas 2007, no pet.). Neither party challenges the issues concerning AMH's status as a governmental unit. Both parties seem to agree that AMH operates under Chapter 262 of the Texas Health and Safety Code and is a municipal hospital authority. The parties seem to passively agree on appeal that both Lanphier and Francis were acting within the scope of their employment. Although it appears the parties disagreed on this matter at trial, any argument on the issue is not well developed in the briefs to this Court. 4. In addition, there were other complications with the delivery of the second infant. The opinion explains that she was delivered "by internal podalic version, breech extraction and forceps for the aftercoming head." Tejada, 207 S.W.3d at 922. 5. Several courts of appeals have announced the general standard of review applicable to motions to dismiss: abuse of discretion. The Houston-Fourteenth court has taken issue with that standard. See Sheth v. Dearen, 225 S.W.3d 828, 831 n.2 (Tex. App. --Houston [14th Dist.] 2007, no pet.). Sheth concludes that the standard of review is dictated by the substance of the issue to be reviewed as opposed to the procedural vehicle through which that issue arrives at the court of appeals. See Kanlic, 230 S.W.3d at 892; Sheth, 225 S.W.3d at 831 n.2. e='mso-tab-count:1'> We affirm the judgment of the trial court. II. Analysis A. Did the Trial Court Err in Proceeding to Trial in Light of John’s Incompetence? John claims that his procedural due process rights under the United States and Texas Constitutions were violated when the trial court refused to continue the trial due to John’s alleged incompetence. As a result, the termination proceeding took place while John was incompetent to proceed with trial.[5] (1) Constitutionally Protected Interest The Fourteenth Amendment to the United States Constitution protects against deprivation of life, liberty, or property by the State “without due process of law.” U.S. Const. amend. XIV; Daniels v. Williams, 474 U.S. 327, 331 (1986). The Texas Constitution provides that “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Tex. Const. art. I, § 19. The Texas “due course” and federal “due process” provisions have been interpreted to be “without meaningful distinction.” Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995). Therefore, in matters of procedural due process, Texas courts have traditionally followed contemporary federal due process interpretations of procedural due process issues. See id. Procedural due process guarantees the right to a fair procedure. John maintains that he was denied fair procedure due to his alleged incompetence at the time of trial. Therefore, we must determine whether John has a liberty or property interest that is entitled to procedural due process protection, and if he does, what process is due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982). The United States Supreme Court has stated that a liberty interest under the Fourteenth Amendment denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). “[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000). A state’s attempt to terminate the parent-child relationship is governed by the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 753–54 (1982). Moreover, the Texas Supreme Court has recognized that the involuntary termination of parental rights implicates fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). In light of this weighty precedent, there can be no doubt that John’s right to retain custody of R.M.T. is a constitutionally protected liberty interest and must be afforded procedural due process. See Martinez v. Tex. Dep’t of Protective & Regulatory Servs., 116 S.W.3d 266 (Tex. App.—El Paso 2003, pet. denied); In re G.C., 66 S.W.3d 517, 525 (Tex. App.—Fort Worth 2002, no pet.). (2) Eldridge Balance The question then becomes one of what process is “due” before the attempted deprivation of parental rights as here. At a minimum, due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319 (1976). However, what process is due in any given situation is measured by a flexible standard that depends on the practical requirements of the circumstances. Id. at 334; Than, 901 S.W.2d at 930. “When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” Santosky, 455 U.S. at 753–54. “[T]he process due in parental rights termination proceedings turns on a balancing of the ‘three distinct factors’ specified in Mathews. . . .” Id. at 754; In re S.K.A., 236 S.W.3d 875, 892 (Tex. App.—Texarkana 2007, pet. denied). In conducting our due process analysis, we are cognizant of the fact that there is no Texas authority which would permit a trial court to halt termination proceedings due to the incompetency of the parent. In re E.L.T., 93 S.W.3d 372, 375, 377 (Tex. App.—Houston [14th Dist.] 2002, no pet.). In E.L.T, the court was confronted with the issue of whether an allegedly incompetent mother was entitled to a competency hearing prior to a proceeding on the merits to terminate her parental rights.[6] At the time of trial, counsel for the mother requested a competency evaluation and a continuance because the mother repeatedly asked, “What are we doing here?” The court ruled that the denial of the motion for continuance was not an abuse of discretion because the motion was not in writing and was unverified. Id. at 375; see Tex. R. Civ. P. 251. Counsel for the appealing parent in E.L.T further argued that because a termination proceeding is quasi-criminal, the trial should have been continued because the mother was mentally incompetent. The court summarily dismissed this argument because there was no written or oral request for the court to make such a competency finding and because there is no authority in which a family court proceeding can be halted due to a parent’s incompetency. E.L.T., 93 S.W.3d at 375. “The relevant sections of the Texas Family Code do not prescribe a competency standard that a parent must meet before participating in a hearing or trial.” Id.; see generally Tex. Fam. Code Ann. §§ 161.001–.210 (West 2008). “To the contrary, a parent’s mental illness may serve as a basis for involuntary termination of parental rights.” E.L.T., 93 S.W.3d at 375; Tex. Fam. Code Ann. § 161.003. Various procedural safeguards, such as the appointment of a guardian or other legal representative of the allegedly incompetent mother were not employed. The record, held the court, did not reflect an abuse of discretion in proceeding with the trial. E.L.T., 93 S.W.3d at 377. E.L.T. is factually distinguishable from this case in several respects. In E.L.T., the only motion for continuance was oral, not complying with Rule 251 of the Texas Rules of Civil Procedure, the parent was appointed no guardian ad litem or attorney ad litem, and there was no finding by any court that the parent was incompetent and there was no evidence introduced to support a claim that she was not competent. John’s case here is stronger because a sworn written motion was filed (which included affidavits concerning his competence), John was represented by a guardian ad litem and attorney ad litem, and another court had previously fairly recently found John to be incompetent (as that term is defined in the Texas Code of Criminal Procedure) to stand trial in his criminal case, and his incompetency persisted at the time of the parental rights termination proceeding;[7] in E.L.T, there was no guardian ad litem appointed for the parent whose rights were terminated E.L.T., 93 S.W.3d at 376. Due to the distinctions between these two cases, we do not believe E.L.T. offers concrete precedence. In his analysis of the Eldridge factors, as they apply here, John relies largely on Justice Guzman’s concurrence in E.L.T.[8] John argues that because a parental rights termination proceeding is a quasi-criminal proceeding, procedural due process requires (as in criminal cases), that he not be subjected to trial until such time as he is competent to do so. It is true that various courts have recognized termination proceedings to be quasi-criminal in nature. As explained by Justice Guzman, Notwithstanding the traditional classification of termination proceedings as civil in nature, some courts have recognized that in certain contexts such suits are quasi-criminal. In re B.L.D., 56 S.W.3d 203, 211–12 (Tex. App.—Waco 2001, pet. filed) (noting that statutory right to counsel in termination proceedings includes a due process right that counsel be effective); In re J.M.S., 43 S.W.3d 60, 63 n.1 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (arguing by analogy in termination case that certain other family law proceedings are quasi-criminal in nature); In the Matter of the Marriage of Hill, 893 S.W.2d 753, 755–56 (Tex. App.—Amarillo 1995, writ denied) (likening the procedural issues in parental termination cases to those of criminal cases as both implicate constitutional concerns); see also Edwards v. Texas Dep’t of Protective and Regulatory Servs., 946 S.W.2d 130, 135 (Tex. App.—El Paso 1997, no writ) (quoting approvingly of Hill). . . . E.L.T., 93 S.W.2d at 377 (Guzman, J., concurring). Further, [s]et apart from “mine run civil actions,” termination proceedings work a “unique kind of deprivation.” M.L.B. v. S.L.J., 519 U.S. 102, 127–28, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996); Santosky, 455 U.S. at 762, 102 S.Ct. 1388 (noting that the challenged state-initiated neglect proceeding bore “many indicia of a criminal trial”). Indeed, the removal of a child from the care of his parents is “a penalty as great, if not greater, than a criminal penalty.” Lassiter v. Dep’t of Soc. Servs. of Durham County, 452 U.S. 18, 39 n. 5, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (Blackmun, J., dissenting) (citations omitted). Texas commentators have gone so far as to call termination “the capital punishment of civil law.” Sampson & Tindall, Texas Family Code Annotated § 161, Introductory Comment p. 757 (2001). Such a characterization rings true considering that termination proceedings involve “the awesome authority of the State to destroy permanently all legal recognition of the parental relationship.” M.L.B., 519 U.S. at 128, 117 S.Ct. 555. Id. at 378 (Guzman, J., concurring). We do not believe, however, that classification of a termination proceeding as quasi-criminal can (or should) be a sole factor which is outcome determinative in resolving the question of whether John’s termination of parental rights proceeding should have been continued until such time as he regained competency. Rather, we look to and weigh the Eldridge factors to determine if the termination proceeding in this case afforded John the measure of procedural due process to which he was entitled—that is, whether he received a fair hearing. “In conducting an Eldridge due process analysis, we weigh three factors -- the private interests at stake, the government’s interest in the proceeding, and the risk of erroneous deprivation of parental rights -- and balance the net result against the presumption that our procedural rule comports with constitutional due process requirements.” In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (footnotes omitted). Under the first prong of the Eldridge balancing test, we are to evaluate the private interests affected by the termination proceeding. “In parental rights termination proceedings, the private interest affected is commanding.” Santosky, 455 U.S. at 758. The interest of a parent in such a proceeding has been declared to be “plain beyond the need for multiple citation” and a natural parent’s “desire for and right to ‘the companionship, care, custody and management of his or her children’” is an interest far more precious than any property right. Lassiter v. Dep’t of Soc. Servs. of Durham County N. Carolina, 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). The required standard of review in termination proceedings (strict scrutiny) and the high burden of proof (clear and convincing evidence) point to the enormity of the liberty interest at stake. E.L.T., 93 S.W.3d at 379. John’s liberty interest in the parent-child relationship is of fundamental significance under the first prong of the Eldridge balancing test and weighs heavily in favor of strong procedural protections. The State correctly recognizes, however, that while the constitutional underpinnings of the parent-child relationship are of fundamental significance, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). It is also essential that the child’s emotional and physical interests not be sacrificed in order to preserve the parent-child relationship. Id. The State maintains that the child’s interests are necessarily involved and must be considered in weighing the private interest at stake in accord with Eldridge. M.S., 115 S.W.3d at 547–48; In re J.F.C., 96 S.W.3d 256 (Tex. 2002). Indeed, the Family Code’s entire statutory scheme for protecting children’s welfare focuses on the child’s best interest. See, e.g., Tex. Fam. Code §§ 51.11(b); 153.001; 153.002; 161.001(2); 161.101. And, like their parents, children have an interest in an accurate resolution and just decision in termination cases. But children also have a strong interest in a final decision on termination so that adoption to a stable home or return to the parents is not unduly prolonged. In fact, it is this State’s express policy to provide a safe, stable, and nonviolent environment for the child. Tex. Fam. Code § 153.001(a)(2). And, if error is properly preserved, the Legislature has upheld this interest by requiring prompt appellate decisions: “An appeal in a suit in which termination of the parent-child relationship is in issue shall be given precedence over other civil cases and shall be accelerated by the appellate courts.” Tex. Fam. Code § 109.002(a). J.F.C., 96 S.W.3d at 304 (Schneider, J., dissenting); see also Lassiter, 452 U.S. at 32 (“[C]hild-custody litigation must be concluded as rapidly as is consistent with fairness. . . .”). Here, a situation is presented whereby the trial court could not accommodate R.M.T.’s interest in achieving permanency without proceeding to trial while John was incompetent. Because the trial court was acting in accord with a legislatively-mandated time frame[9] requiring that the case either be tried or dismissed, it was faced with the prospect of either dismissing the case by April 30, 2011 (the final deadline to try or dismiss the action), or proceeding on to trial, even though it apparently believed that John was incompetent. John argues that the trial court should, at the least, have postponed the trial until April 30, 2011, the absolute deadline for the case to be tried or dismissed, in order to afford him additional time to regain competency. Despite John’s request for a continuance in which he argued there was time to regain competency prior to the “drop dead date” of April 30, 2011, there is no evidence to indicate any likelihood or probability that John would regain competence by this time, if ever.[10] Under this scenario, the trial court could not protect the child’s interest in achieving permanency in a timely fashion and accommodate John’s request that the case not proceed to trial while incompetent.[11] Accordingly, the private interests of John and of R.M.T. under the first Eldridge factor “reflect a desire for an accurate and just decision, but one that does not unduly prolong a final decision about the child’s permanent home.” J.F.C., 96 S.W.3d at 304. In other words, the interests of the child appeared to be in direct conflict with the interests of the parent. In such a head-to-head conflict, one person’s interest must trump the other; here, the interest of the child is the trump card. The State’s interest in the proceeding includes protecting the best interest of the child, an interest which is “served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home.” M.S., 115 S.W.3d at 548–49 (quoting Santosky, 455 U.S. at 767); see also In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003) (the State “parens patriae interest in promoting the welfare of the child” aligns with the parent’s interest in a just and accurate decision). The State also has an interest in an accelerated timetable and a final decision that is not “unduly prolonged” with negative psychological effects on the children left in limbo. See M.S., 115 S.W.3d at 548; B.L.D., 113 S.W.3d at 353. “But the State’s interests in economy and efficiency pale in comparison to the private interests at stake, and to the risk that a parent may be erroneously deprived of his or her parental rights and the child may be erroneously deprived of the parent’s companionship.” M.S., 115 S.W.3d at 548. In this case, however, the State’s interest in economy and efficiency were urgent. The State had a strong interest in conducting the termination proceeding in a timely fashion, in light of the fact that the deadline to try or dismiss the case was looming on the horizon like a harbinger of doom, as previously discussed. The stark reality of the situation left the State with a Hobson’s choice—to either dismiss the case, which would result in R.M.T. living in limbo (as her father was hospitalized for mental problems) or proceed to trial while John remained incompetent. Here, the State’s interest in economy, efficiency, and finality were strong. In light of the fact that the Texas Family Code does not allow for extensions beyond what was already given, this factor weighs in favor of conducting the termination proceeding forthwith. “The parent’s, child’s, and government’s interest in a just and accurate decision dovetails with the third Eldridge factor -- that of the risk of erroneous deprivation” of the parent-child relationship. Id. at 549; In re S.K.A., 236 S.W.3d at 893. As previously noted, the Texas Family Code does not provide for a parental competency hearing in any type of case. However, the Code does provide for the appointment of an attorney ad litem for a parent who is the subject of a termination proceeding if the parent suffers from a mental or emotional illness or from a mental deficiency which renders the parent unable to provide for the physical, mental, and emotional needs of the child. Tex. Fam. Code Ann. § 161.003(b).[12] The Texas Family Code also allows for the discretionary appointment of an attorney ad litem for a person who is incapacitated. Tex. Fam. Code Ann. § 107.010 (West 2008). Other procedures designed to reduce the risk of an erroneous deprivation include the requirement that grounds for termination, including the best interest of the child, must be proved by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001. Further, appellate courts are to strictly scrutinize decisions to terminate parental rights. See Troxel, 530 U.S. at 80 (Thomas, J., concurring); Holick, 685 S.W.2d at 20–21 (“[T]ermination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent.”). John was represented in the termination proceeding by his attorney ad litem, who did all that one might anticipate could be done to guard against a trammeling of his rights and his concerns. John’s interests were protected at trial as evidenced by his counsel’s (1) timely assertion in his motion for continuance, statement of points, and closing argument of the precise due process issues now before this Court, (2) ensuring that the motion for continuance was heard in a timely fashion, (3) cross-examination of witnesses at trial, (4) actively asserting objections at trial, (5) advising John to assert his Fifth Amendment right against self-incrimination, and (6) providing an affidavit in support of the motion for continuance. John contends that the procedural safeguards as outlined above were nevertheless inadequate to prevent the risk of an erroneous deprivation of his parental rights. He urges this Court to adopt the additional procedural safeguard utilized in criminal cases—to prevent the government from subjecting him to trial at a time when he lacked “the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense.” See Alcott v. State, 51 S.W.3d 596, 598 (Tex. Crim. App. 2001). John argues that his lack of competence caused him to be unable to assist his attorney by providing information to rebut evidence offered by the State and to provide information generally helpful to defend against the termination proceeding. Here, John had already been determined to be mentally incompetent; thus, John maintains, there remained the risk of erroneous deprivation of his rights. Because termination is “traumatic, permanent, and irrevocable,” “any significant risk of erroneous deprivation is unacceptable.” M.S., 115 S.W.3d at 549. Given that John was provided with the full panoply of constitutional safeguards provided by the Texas Family Code, we cannot conclude the risk of erroneous deprivation in this case was significant. When the Eldridge factors are balanced against the presumption that our procedural rules[13] comport with constitutional due process requirements, we find that presumption has not been overcome. See id. at 547 (net result of Eldridge factors must be balanced against presumption that procedural rules comport with constitutional due process requirements). A calibration of the Eldridge factors in this case reveals that John was accorded all process due him in the parental rights termination hearing.[14] Moreover, the imposition of a requirement that John’s termination trial be delayed indefinitely until a return of competence would contravene the State’s and the child’s interest in a final decision so that the child’s adoption or placement in a stable home or return to the parent is not unduly prolonged. The trial court was given no indication of when John might regain competency, if ever. There is no indication that any magic potion was available to restore him to sanity before the “drop dead” date prescribed by statute. Given the exigent circumstances presented here, and in weighing the practical requirements of the circumstances, we find that John was accorded due process in his parental rights termination hearing. See Mathews, 424 U.S. at 334 (“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.”). Having so determined, we address the issue of the requested continuance. The decision to grant or deny a motion for continuance is within the trial court’s sound discretion. See Tex. R. Civ. P. 251. Unless the record discloses a clear abuse of discretion, the trial court’s denial of a motion for continuance will not be disturbed. State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex. 1988); E.L.T., 93 S.W.3d at 374. This Court cannot substitute its judgment for that of the trial court, but must only determine whether the trial court’s action was so arbitrary as to exceed the bounds of reasonable discretion. Philipp Bros., Inc. v. Oil Country Specialists, Ltd., 709 S.W.2d 262, 265 (Tex. App.—Houston [1st Dist.] 1986, writ dism’d). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to any guiding rules and principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). In this regard, the trial court stated, [T]he Court is of the opinion that the procedures set forth in the Texas Family Code related to the termination of parental rights in those cases meet the minimum due process requirements of the constitution. And that at this juncture, the Court has been presented [with] no binding legal authority where any termination case has been halted or continued on the basis of the respondent parent’s mental incompetency. For the reasons articulated in this opinion, we find that the trial court did not abuse its discretion in denying John’s motion for continuance. B. Did the Trial Court Err When It Allowed John to Testify Over Counsel’s Objection? In his final issue, John complains that the trial court erred when it allowed him to testify over his attorney’s objection that he was not competent, in reliance on Rule 601 of the Texas Rules of Evidence. Tex. R. Evid. 601.[15] Rule 601 creates a general presumption of witness competency and provides, in pertinent part: (a) General Rule. Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules: (1) Insane persons. Insane persons who, in the opinion of the court, are in an insane condition of mind at the time when they are offered as a witness, or who, in the opinion of the court, were in that condition when the events happened of which they are called to testify. Tex. R. Evid. 601. Witness competency is a threshold question for the trial court to determine, and the trial court’s ruling will not be disturbed on appeal unless an abuse of discretion is shown. Tex. R. Evid. 104(a); Kokes v. College, 148 S.W.3d 384, 389 (Tex. App.—Beaumont 2004, no pet.). The burden of proof rests on the party who claims the witness is incompetent due to insanity to show the existence of insanity by a preponderance of the evidence. Handel v. Long Trusts, 757 S.W.2d 848, 854 (Tex. App.—Texarkana 1988, no pet.) (per curiam). In order to demonstrate incompetency under Rule 601, it must be shown that the witness lacked the ability to perceive the relevant events, recall and narrate those events at the time of trial, or that the witness lacked the capacity to understand the obligation of the oath. Mobil Oil Corp. v. Floyd, 810 S.W.2d 321, 323 (Tex. App.—Beaumont 1991, orig. proceeding). Moreover, the adjudication of insanity creates a rebuttable presumption of insanity. Id. at 324; Elliott v. Elliott, 208 S.W.2d 709 (Tex. Civ. App.—Fort Worth 1948, writ ref’d n.r.e.). The evidence attached to John’s motion for continuance indicates that John could not rationally or factually discuss his case with his attorney, could not rationally communicate with his attorney, and could not discuss his legal situation. John suffered from schizoaffective disorder, polysubstance dependence, cognitive disorder, and personality disorder with paranoid and antisocial traits. In October 2010, it was reported that John “has been unable to achieve competency to stand trial during this hospitalization” and that in the physician’s opinion, “the patient’s condition . . . is expected to continue for more than 90 days.” In February 2011, John’s attorney ad litem and guardian ad litem both opined that John lacked the capacity to understand the nature and objective of the proceeding against him and to consult with his attorney ad litem in preparing a defense to the allegations made by the Department. This evidence was not disputed at trial.[16] Further, the trial court stated on the record that based on its own observations during the course of the trial, John would not be able to testify. The trial court further indicated that while it would attempt to swear the witness (John) in, “I’m almost confident he will not comprehend what I’m asking.” Finally, after swearing the witness in, the trial court stated, “I want the record to reflect that the witness was unable to follow the instruction to keep his hand held up. He indicates he understands the oath that he’s taken, although the Court doubts that to be the case.” John had previously been judicially declared incompetent to stand trial in another case based on medical evidence. While the prior judgment of incompetence does not disqualify John from testifying, it does create a presumption of incompetency. See Floyd, 810 S.W.2d at 323–24.[17] This presumption, together with the records of John’s incompetency, the appointment of a guardian ad litem for John,[18] and the comments of the trial court[19] are solid evidence that John was incompetent at the time of trial. Because the State did nothing to rebut the presumption of John’s incompetence, the trial court acted outside of its discretion when it permitted John to testify over the objection of counsel. On appeal, the State concedes John was incompetent to testify at trial, but maintains that because John has not demonstrated, argued, or even contended that the admission of his testimony resulted in an improper judgment, his Rule 601 argument must fail. We agree. In order to reverse a judgment based on an error in the admission of evidence, the complaining party must not only show that the trial court committed an error, but also that the error was reasonably calculated to cause, and probably did cause, rendition of an improper judgment. See Tex. R. App. P. 44.1; State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). John has not argued that this error has precipitated any harm and we do not perceive that any harm was occasioned by the fact that John was permitted to testify, despite his apparent incompetency. It is apparent that his appearance on the stand as a witness likely confirmed the lack of competency under which he was suffering and we see nothing he stated while testifying which would have damaged his case. As a result, our review of the record does not lead us to believe that an improper judgment probably resulted due to the admission of John’s brief testimony.[20] John testified that he knew his daughter is R.M.T., and related that “[s]he’s very smart.” While many of John’s answers were unintelligible, he testified that he lives at 414 South Jean in Longview and that he wants the best for R.M.T. John did not know when he would get out of jail, but was told it would be a couple of weeks. He believes that his ex-wife, Cindy, will help take care of R.M.T. John’s parental rights were terminated under subsections 161.001(1)(D) and (E) of the Texas Family Code.[21] John’s abbreviated testimony does not touch on the grounds for termination presented by the State. If anything, his testimony indicates that he cares about R.M.T. and wants what is best for her. It is not probable that the erroneous admission of John’s testimony resulted in the rendition of an improper judgment. We overrule this issue. III. Conclusion We affirm the judgment of the trial court. Bailey C. Moseley Justice CONCURRING OPINION The trial court needs the authority to exercise discretion and judgment in setting a hearing to terminate parental rights. Here, the primary rationale for proceeding with this termination hearing was that the state-mandated dismissal sword was hanging over the head of the trial court and the parties. Failure to conduct the hearing would require a dismissal of the case which might produce negative consequences for the child. To comply with the statute, the trial court had to proceed to trial regardless that the father was legally incompetent to understand the proceedings or assist his lawyer. Often this occurs in criminal cases, and generally the defendant is treated at a state hospital and regains competency and then the trial is conducted. But in termination of parental rights cases, the “capital punishment of civil law,” the judge’s discretion is effectively removed by the statute requiring dismissal of the case if it has not been resolved within the statutory limitation. This is unfair not only to the parent, who does not understand what is happening, but also the State may prematurely seek termination if the only other option is dismissal of the case. Finally, the ultimate concern should be with the child. Is it probable the child will be adopted? Is the child thriving in the present environment? Is resolving the parental right immediately necessary for the well-being of the child? These matters are swept aside in a rush to conclude the case. The Legislature should amend the statute and allow the trial judges to exercise their good judgment and discretion in setting final termination hearings. I concur in the judgment. Jack Carter Justice Date Submitted: September 28, 2011 Date Decided: October 5, 2011 [1]For purposes of confidentiality, the parents are referred to only by their first names, and the child is identified only by initials. See Tex. R. App. P. 9.8. [2]The competency evaluation was performed by Dr. Thomas Allen on February 23, 2010, concluding John was unable to rationally or factually discuss his case with his attorney, could not rationally communicate with his attorney, and could not discuss his legal situation. On March 4, 2010, the trial court presiding over a criminal case pending against John (Gregg County cause number 38,590-A) found John incompetent to stand trial. John was committed to a mental health facility for a period not to exceed 120 days, with the specific objective of attaining competency to stand trial. John was subsequently interviewed September 29, 2010, by Gary Holly, M.Ed., LPC, who formed the opinion that John remained incompetent to stand trial. [3]On October 8, 2010, John was evaluated by Joseph L. Black, M.D., at North Texas State Hospital who concluded that John suffered from schizoaffective disorder, polysubstance dependence, cognitive disorder, and personality disorder with paranoid and antisocial traits. The report states that John “has been unable to achieve competency to stand trial during this hospitalization” and that in the physician’s opinion, “the patient’s condition . . . is expected to continue for more than 90 days.” A civil commitment hearing was held on October 28, which resulted in John’s civil commitment for “not longer than 12 months.” On December 20, 2010, it was determined that John was not manifestly dangerous, and he was transferred to Rusk State Hospital. On February 16, 2011, both John’s attorney and his guardian ad litem visited him at Rusk State Hospital. John’s guardian ad litem averred in an affidavit that “I seriously doubt if my Client has the capacity to understand the nature and objective of the proceedings against him and to consult with his Court appointed attorney ad litem in preparing a defense to the allegations made by the Department.” John’s counsel averred in his affidavit that John was unable to communicate with him, answer questions relevant to the suit, provide any facts to rebut allegations made by the Department, and was unable to assist in establishing a tactical goal for the termination case. The Department concedes that John was incompetent to testify at trial. [4]The referenced exhibits consist of the reports discussed in the previous footnotes, as well as the affidavits of John’s guardian ad litem and of his trial counsel. The definition of “competency” as discussed in the various reports is taken from the Texas Code of Criminal Procedure: (a) A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person. (b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46B.003 (West 2006). [5]John’s first point of error technically complains of the trial court’s refusal to grant his motion for continuance; his second point of error complains that the trial took place at a time when he was incompetent. Both points of error allege John was deprived of his procedural due process rights under the United States and Texas Constitutions. Because these points of error largely overlap, we address both together. [6]Here, John does not complain of not having received a competency hearing; rather, he complains of being forced to trial while incompetent. [7]The affidavit evidence in support of John’s incompetency was not contested. At trial, the court commented that it was inclined to make a finding based upon not only the reports that were filed with the motion for continuance in this case that we heard last week, but also based on the Court’s own observation of [John] throughout the course of this trial, he’s not going to be able to testify. The trial court further indicated that it did not believe John would comprehend the process of being sworn in to testify. Later, the trial court stated, “I want the record to reflect that the witness was unable to follow the instruction to keep his hand held up. He indicates he understands the oath that he’s taken, although the Court doubts that to be the case.” [8]Justice Guzman concurred in the result, but wrote separately to address what she perceived to be “the failure of Texas law to adequately address parental competency in the context of termination of parental rights.” E.L.T., 93 S.W.3d at 377 (Guzman, J., concurring). [9]Section 263.401of the Texas Family Code provides, [O]n the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court shall dismiss the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child. Tex. Fam. Code Ann. § 263.401(a) (West 2008). Subsection (b) allows for one extension not to exceed 180 days, if the court finds that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department and such continuing appointment is in the best interest of the child. Tex. Fam. Code Ann. § 263.401(b) (West 2008). The trial date in this case was set after a 180-day extension was granted. [10]John was found incompetent to stand trial in his criminal case on March 4, 2010. On September 29, 2010, Dr. Stacey Shipley, a licensed psychologist, reported that John remained incompetent to stand trial. In her report, Shipley concluded that “Restoration of [John’s] trial competency is very unlikely in the near future.” In October 2010, John’s records from North Texas State Hospital indicate that he “has been unable to achieve competency to stand trial during this hospitalization” and that incompetency was expected to continue for more than ninety days. [11]This conundrum is one which is properly acted on by the Legislature, rather than the courts. By the very nature of his request, John is asking for an extension of the deadline in which to try or dismiss the case. As currently drafted, the statute does not permit any extension whatsoever beyond one 180-day extension, then given only if good cause is shown and the extension would be in the best interest of the child. See Tex. Fam. Code Ann. § 263.401(a). [12]This provision applies when termination is based on the mental or emotional illness or mental deficiency of the parent that renders the parent unable to provide for the physical, emotional, and mental needs of the child. Tex. Fam. Code Ann. § 161.003. [13]The primary procedural rule at issue is Section 263.401 of the Texas Family Code, which imposes strict deadlines for resolution of termination cases. See Tex. Fam. Code Ann. § 263.401. [14]We further note that the statute does not provide for an extension of the deadline for resolution of termination cases beyond what was given in this case. See Tex. Fam. Code Ann. § 263.401. [15]At trial, counsel for the State called John as a witness. Counsel for John objected, [Counsel]: . . . . I’m going to object under Rule . . . 601. This witness is not competent to testify. If she wants to try to produce evidence that he is competent to testify, that’s fine, but, you know, we’ve got reports from - - psychological reports that have been admitted as a prior motion that indicate - - motion for continuance, the reports that were attached that indicate he’s not competent to testify. And I believe under Rule 601 . . . . . . . . THE COURT: The Court is inclined . . . to make a finding based upon not only the reports that were filed with the motion for continuance in this case that we heard last week, but also based on the Court’s own observation of [John] throughout the course of this trial, he’s not going to be able to testify. . . . . THE COURT: . . . . Ms. Russell, you want to ask this gentleman questions, I’m going to let you ask questions. . . . [16]There was some indication at trial that the exhibits attached to John’s motion for continuance were not independently introduced, and, thus, John could not rely on them to support his claim of incompetency. Because the State did not raise this issue on appeal, we do not address it. [17]As a general rule, a person is presumed to be sane until such time as he is found to be insane, but once found to be insane, he is presumed to be insane until such time as he is found to be sane. Floyd, 810 S.W.2d at 324. [18]The appointment of a guardian creates a presumption of incompetency in other proceedings. Barker v. Roelke, 105 S.W.3d 75, 85 (Tex. App.––Eastland 2003, pet. denied). [19]The comments of the trial court indicate that John may well have lacked the capacity to understand the obligation of the oath. [20]In reviewing a matter tried before the court, the appellate court generally assumes that the trial court disregarded any incompetent evidence. Gillespie v. Gillespie, 644 S.W.2d 449, 450 (Tex. 1982). The admission of such evidence generally does not require reversal of the judgment where there is competent evidence to authorize its rendition. Id. Moreover, no reversible error exists unless the entire case turns on the evidence improperly admitted. Roberts v. Clark, 188 S.W.3d 204, 208 (Tex. App.––Tyler 2002, no pet.). [21]The pertinent sections of the Texas Family Code provide that a parent-child relationship may be terminated if the court finds by clear and convincing evidence that the parent has: (D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; (E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; . . . . Tex. Fam. Code Ann. § 161.001(1)(D), (E). In addition, Section 161.001(2) requires clear and convincing evidence that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(2).