Summary
considering mother's failure to take medication for her mental health condition and her failure to provide adequate health care for her child in determining evidence was sufficient that mother created endangering environment for child
Summary of this case from In re Interest of A.K.L.Opinion
NUMBER 13–15–00552–CV
05-17-2016
In the Interest of P.R.W., a Child
Jacqueline A. Del Llano Chapa, Attorney at Law, Corpus Christi, TX, for Appellant. Leslie Capace, Texas Department of Family and Protective Services, Austin, TX, for Appellees.
Jacqueline A. Del Llano Chapa, Attorney at Law, Corpus Christi, TX, for Appellant.
Leslie Capace, Texas Department of Family and Protective Services, Austin, TX, for Appellees.
Before Justices Benavides, Perkes, and Longoria
MEMORANDUM OPINION
Memorandum Opinion by Justice Longoria
Appellant B.W. (“Mother”) challenges the legal and factual sufficiency of the evidence supporting an order terminating her parental rights over her child, P.R.W. (“Child”), in a single issue. We affirm.
We utilize aliases for the parties and the persons involved to protect the minor's privacy. See Tex.R.App. P. 9.8(b).
I. Background
A. 2014
On January 20, 2014, police in Corpus Christi responded to reports of a woman, Mother, slapping passing cars and yelling at the drivers not to go into an apartment building because of a gas leak. During this time, Mother was allegedly holding Child upside down by the ankles. The police detained Mother and involuntarily committed her to the hospital for a mental health evaluation. On that day, Mother tested positive for amphetamines. The Texas Department of Family and Protective Services (“the Department”) filed its original petition seeking conservatorship over Child.
Mother was discharged from the hospital several days later. Her discharge reports described her as being “grossly psychotic” at the time of her arrival. The discharge papers reflect that she was diagnosed with schizophrenia and bipolar disorder, and referred to local mental health services for continued treatment. Mother testified at trial that she was diagnosed with bipolar disorder but denied having a diagnosis of schizophrenia.
Child was initially placed in foster care until M.S. and J.S. requested that the Department consider them for placement. M.S. and J.S. are the grandparents of C.B., who was Mother's boyfriend at one time. Mother and Child had previously lived with C.B., but he was incarcerated during the entire pendency of this case. The Department approved M.S. and J.S.'s application, and Child resided with them for the majority of the proceedings in the trial court.
C.B. is not Child's father. The identity and location of Child's father is unknown. The court also terminated the father's rights at trial, and he is not a party to this appeal.
Throughout the remainder of 2014 the trial court issued several orders finding that Mother did not substantially comply with the service plans setting out the conditions necessary for her to regain custody of Child. In September of 2014—shortly after Mother was allowed unsupervised visitation—Mother tested positive for methamphetamine and marijuana. Mother testified at trial that she knew at the time that Child would not be returned to her if she used illegal drugs, but could not remember why she took the drugs. At a hearing on November 5, 2014, the trial court ordered Mother to submit to further drug screenings and that her visitation rights with Child would cease if a test was positive. Mother admitted that a drug screening that day would return positive for methamphetamine. However, the court excluded that screening from the reach of the order. Mother tested positive for marijuana again in December of 2014, but her visitation rights were not curtailed. Mother tested positive for drugs a total of four times in 2014.
Lisa Cardenas, the Department caseworker assigned to Mother's case, testified that she visited Mother on August 26, 2014. During that visit, Cardenas asked to see Mother's medications. Cardenas testified that it took Mother an unusually long amount of time to find the medication and that the dates on the medication bottles were older than she expected. Cardenas also observed that the medication bottles contained unequal amounts of medication even though Mother was supposed to take the medication on a daily basis.
B. 2015
In January of 2015 the trial court found extraordinary circumstances to permit Child to continue in the Department's care beyond the statutory deadline to dismiss the case. See Tex. Fam.Code Ann. § 263.401(b) (West, Westlaw through 2015 R.S.).
Mother tested negative for drugs in early 2015. In March of 2015, the trial court found that Mother had substantially complied with her service plan. The trial court ordered Child returned to her custody during the week, but that Child would continue to spend the weekends with M.S. and J.S. The trial court also directed Mother to inform the Department if anyone moved into her apartment so that the Department could run a background check. Mother did not actually regain custody until April of 2015 because she took a trip to visit extended family in Boston.
During a home visit on April 23, 2015, Cardenas requested that Mother take a drug test. Mother initially agreed, but never complied with the request. Cardenas testified that she did not follow up because she did not realize until May that Mother missed her appointment for the test.
Police responded to an “overdose call” on June 2, 2015 involving Child. Police observed Mother telling a paramedic that she had given Child “gum” the night before and was subsequently “unable to walk or stand.” Paramedics examined Child and cleared him of any medical problems. According to the paramedics' report, Mother insisted that Child “isn't fine.” On the same day, Cardenas received phone calls from M.S. and a person at Child's daycare saying that Mother was acting erratically. Cardenas made an unannounced home visit to Mother's apartment on the same day. She found Mother there with M.L., a man unknown to the Department. Mother told Cardenas that M.L. had been living with her, but did not specify for how long. Cardenas testified at trial that M.L. was behaving erratically and asked if the Department “was programming the children.” Cardenas further testified that M.L. gestured with her arms in such a manner as to cause her to fear for her safety, and that M.L. refused to state his full name.
The Department's counsel did not ask Cardenas to explain the content of the phone calls with any more specificity after Mother's counsel made a hearsay objection.
Cardenas then asked Mother why she did not have Child's asthma medication earlier that day even though M.S. filled the prescription and gave it to Mother the day before. Cardenas testified that Mother became agitated and accused Cardenas of having already received permission from the trial court to remove Child from her custody. Mother also stated that she believed Cardenas and M.L. were somehow involved because she had seen the two of them “together on the street.” Cardenas asked Mother if she would consent to M.S. and J.S. taking care of Child for the next few days. Still agitated, Mother agreed because Cardenas allegedly already had permission to remove Child.
At Cardenas' request, M.S. and her daughter came to Mother's apartment to pick up Child. By this time, Mother's adult daughter had arrived and she and Mother were shouting at each other. Mother then asked M.S. to drive her somewhere, but Cardenas said that she would drive Mother wherever she needed to go. Cardenas testified that when they entered the car, Cardenas' phone made a “beep” noise and Mother said: “are you recording me? You're recording me. I'm not going to say anything.”
Mother also said that she had recently been beaten with a bat and was “black and blue” because of it, but Cardenas testified that Mother had no visible injuries. Cardenas offered to take Mother to a woman's shelter, but Mother requested that they drive back by Mother's apartment. Cardenas then dropped Mother off by the side of the road at her request because Mother saw someone that she apparently knew.
Following a bench trial, the trial court found by clear and convincing evidence that Mother had committed three statutory grounds for termination and that termination was in the best interests of Child. See Tex. Fam.Code Ann. § 161.001(b)(1)(D), (E), (N), (b)(2) (West, Westlaw through 2015 R.S.). Mother asserts in a single issue on appeal that the evidence was legally and factually insufficient to support the trial court's judgment.
II. Standard of Review and Applicable Law
The natural right between a parent and her child is of constitutional dimensions, and courts strictly scrutinize proceedings to terminate that right. In re K.M.L., 443 S.W.3d 101, 112 (Tex.2014). Because of the magnitude of the right at issue, due process requires that courts apply the clear and convincing standard of proof to termination proceedings. Id. ; In re J.F.C., 96 S.W.3d 256, 263 (Tex.2002). The Texas Family Code defines clear and convincing evidence as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.Code Ann. § 101.007 (West, Westlaw through 2015 R.S.).
The clear-and-convincing standard heightens a court's review of the legal and factual sufficiency of the evidence. Determining whether the evidence is legally sufficient under this standard requires us to look “at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d at 266. This review requires us to assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. As a corollary, we must disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. “This does not mean we must disregard all evidence that does not support the finding, but if we determine that no reasonable fact finder could have formed a firm belief or conviction that the matter to be proven is true, then the evidence is legally insufficient.” In re L.J.N., 329 S.W.3d 667, 671 (Tex.App.—Corpus Christi 2010, no pet.).
In a factual sufficiency review, the reviewing court asks “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations.” In re J.F.C., 96 S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.2002) ). The distinction with a legal sufficiency review is that courts consider whether the disputed evidence is such that a reasonable factfinder could not have resolved that evidence in favor of its finding. Id. The evidence is factually insufficient if the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant a factfinder could not have reasonably formed a firm belief or conviction that the allegation is true. In re H.R.M., 209 S.W.3d 105, 108 (Tex.2006) (per curiam).
Courts apply these standards to determine whether the Department proved by clear and convincing evidence: (1) the parent committed one or more of the statutory acts or omissions set out in section 161.001(b)(1) of the Texas Family Code and (2) termination is in the best interest of the child. See Tex. Fam.Code Ann. § 161.001(b)(1), (2).
III. Discussion
A. Section 161.001(b)(1)(D)
1. Applicable Law
Subsection D permits termination of parental rights if the parent “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.” Id. § 161.001(b)(1)(D). Evidence of endangerment under subsection (D) is established by evidence related to the child's environment. In re S.R., 452 S.W.3d 351, 360 (Tex.App.—Houston [14th Dist.] 2014, pet. denied). The child's “environment” refers to the suitability of the child's living conditions as well as the conduct of parents or others in the home. Id. Living conditions that are merely “less-than-ideal” do not support a finding under subsection (D). In re A.S., 261 S.W.3d 76, 83 (Tex.App.—Houston [14th Dist.] 2008, pet. denied) (citing Tex. Dep't. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987) ). However, “[i]nappropriate, abusive, or unlawful conduct by a parent or other persons who live in the child's home can create an environment that endangers the physical and emotional well-being of a child” as required under this subsection. In re S.R., 452 S.W.3d at 360.
2. Analysis
We agree with the Department that the record revealed Mother subjected Child to an endangering environment. Mother has a serious mental illness which caused her to endanger Child during the incident which began this case. Further, Cardenas' testimony permits an inference that Mother took medication for the illness only sporadically after her hospitalization. While mental illness alone is not grounds for termination, failure of a parent to take prescribed medication is relevant to endangerment. SeeIn re S.R., 452 S.W.3d at 363 ; see alsoMaxwell v. Tex. Dep't of Family & Protective Servs., No. 03–11–00242–CV, 2012 WL 987787, at *10 (Tex.App.—Austin Mar. 23, 2012, no pet.) (mem.op.). More significantly, Cardenas' testimony permits an inference that Mother had stopped taking her medication by the time of the second removal; her behavior on that day was similar to her actions on the day she was involuntarily committed. Mother admittedly improved enough in the time between these two events to briefly regain custody of Child, but even strong evidence of improvement cannot conclusively negate past history. In re J.O.A., 283 S.W.3d 336, 346 (Tex.2009) ; In re G.M.G., 444 S.W.3d 46, 60 (Tex.App.—Houston [14th Dist.] 2014, no pet.).
Also relevant is Mother's failure to retain Child's asthma medications and nebulizer. Mother did not have Child's medication even though M.S. had given it to her the day before, and Mother permitted her adult daughter to take Child's nebulizer. The trial court could have viewed this conduct as endangering Child's physical health because M.S. testified that Child had gone to the doctor a few days before because of trouble breathing. SeeIn re S.R., 452 S.W.3d at 360.
The trial court could also consider that Mother allowed Child to live with C.B. as evidence of subjecting him to dangerous conditions. Mother testified that C.B. was so aggressive towards other persons that he frequently caused the loss of their housing. Even though there is no evidence regarding C.B.'s treatment of Child, the conduct which creates a dangerous environment need not be directed at the Child. SeeP.A.G. v. Tex. Dep't. of Family & Protective Servs., 458 S.W.3d 595, 600 (Tex.App.—El Paso 2014, no pet.).
Based on all of the foregoing, we conclude that the evidence is legally sufficient because a reasonable trier of fact could form a firm belief or conviction that Mother placed Child in dangerous conditions or surroundings. SeeIn re J.F.C., 96 S.W.3d at 266. The evidence is factually sufficient because the disputed evidence regarding endangerment is not so significant it would prevent a factfinder from reasonably forming a firm belief or conviction that Mother placed Child in dangerous conditions or surroundings. See In re H.R.M., 209 S.W.3d at 108.
We do not address whether the evidence is legally and factually insufficient under subsections (E) and (N) because the Department must prove only one statutory act or omission. SeeIn re E.N.C., 384 S.W.3d 796, 803 (Tex.2012).
B. Best Interest Analysis
1. Applicable Law
This best interest analysis requires courts to decide how best to reconcile a parent's desire to raise her child with the State's responsibility to promote the child's best interest. In re E.R., 385 S.W.3d 552, 555 (Tex.2012). There is a strong presumption that the child's best interest is served by retaining the parent-child bond, but the Department may rebut that presumption by clear and convincing evidence. In re O.R.F., 417 S.W.3d 24, 39 (Tex.App.—Texarkana 2013, pet. denied) (op. on reh'g). The Texas Supreme Court has articulated a list of non-exclusive factors for courts to consider in this analysis:
1. the child's desires,
2. the emotional and physical needs of the child now and in the future,
3. the emotional and physical danger to the child now and in the future,
4. the parental abilities of the individuals seeking custody,
5. the programs available to assist these individuals to promote the best interest of the child,
6. the plans for the child by these individuals or by the agency seeking custody,
7. the stability of the home or proposed placement,
8. the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and
9. any excuse for the acts or omissions of the parent.
In re E.N.C., 384 S.W.3d 796, 807 (Tex.2012) (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.1976) ). The list of Holley factors is not exhaustive, and some factors will not be applicable in a particular case. In re C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of a single factor may be sufficient to support a finding that termination is in the best interests of the child. In re D.C., 128 S.W.3d 707, 716 (Tex.App.—Fort Worth 2004, no pet.).
2. Analysis
a. The Desires of the Child
At the time of trial, Child was three and a half years old. There is no evidence that Child expressed an opinion on returning to Mother's care or that Child is mature enough to form one. Some courts have concluded in similar circumstances that this factor is neutral. SeeIn re D.W., 445 S.W.3d 913, 926 (Tex.App.—Dallas 2014, pet. denied) (concluding that this factor was neutral because the child was not mature enough to express an opinion). Nevertheless, evidence that the child “loves a parent, enjoys visits, and shows affection is marginally relevant.” In re A.M., 385 S.W.3d 74, 82 (Tex.App.—Waco 2012, pet. denied). The first factor weighs marginally against termination. See Id.
b. The Present and Future Emotional and Physical Needs of the Child; the Emotional and Physical Danger to the Child Now and in the Future.
Under these factors the Department primarily points to Mother's mental illness and its effect on her parenting. A parent's mental illness or incompetence alone is not grounds for termination, but we may consider endangering conduct caused by a parent's mental state. In re C.M.B., 204 S.W.3d 886, 895 (Tex.App.—Dallas 2006, pet. denied).
There is no dispute that Mother's mental illness led her to endanger Child when she held Child upside down by the ankles while slapping passing cars and yelling at the drivers. As we described in greater detail above, there is strong evidence that Mother inconsistently took her medication after she was hospitalized over this incident. The trial court did find that Mother complied with her medication requirements at one point during the pendency of this case, but the trial court's finding does not mean that Mother's past conduct would not reoccur. SeeIn Interest of X.R.L., 461 S.W.3d 633, 640 (Tex.App.—Texarkana 2015, no pet.) (holding that “evidence of past misconduct or neglect can be used to measure a parent's future conduct”). Mother's behavior on the day that Child was removed for the second time supports that her past conduct informs her future behavior. It was reasonable for the trial court to infer from Cardenas' testimony regarding Mother's behavior on that day that she was no longer taking her medication and becoming delusional and paranoid as a result. Given the danger Child was in at the beginning of this case and the evidence that Mother took her medications inconsistently throughout the pendency of this case, the trial court could properly infer that there was a likelihood that Mother's mental health issues would reoccur and endanger Child. SeeIn re S.R., 452 S.W.3d at 367 ; Adams v. Tex. Dep't of Family & Protective Servs., 236 S.W.3d 271, 280 (Tex.App.—Houston [1st Dist.] 2007, no pet.).
The trial court could also consider Mother's history of four positive drug tests during the pendency of the case. That Mother continued to abuse drugs for almost a year after Child was initially removed when she knew that remaining drug free was one of the conditions of regaining custody weighs in favor of termination. SeeIn Interest of X.R.L., 461 S.W.3d at 640.
Mother had been earlier convicted in federal court for a conspiracy involving marijuana.
I agree with the facts as set out in the majority opinion.
Furthermore, there is strong evidence that exposing Child to C.B. was inappropriate. Mother testified that C.B. often cared for Child because she was at work for most of the day. She also testified that C.B. frequently caused them to lose their housing because of C.B.'s aggressive behavior towards other residents. At one point, Mother decided to give up a trailer that she owned so that she, C.B., and Child could move in with M.S. and J.S. rather than require C.B. to leave. The trial court could weigh her frequent moves and inability to provide a stable home in favor of termination. SeeIn re S.R., 452 S.W.3d at 367 (“Lack of stability, including a stable home, supports a finding that the parent is unable to provide for a child's emotional and physical needs.”); In re G.M.G., 444 S.W.3d at 60. The trial court could also consider that Mother was unable to find Child's asthma medications on the day of the second removal. Mother's failure to have Child's asthma medication or nebulizer present in the house supports an inference that meeting Child's physical needs was not a priority for Mother. See In re D.W., 445 S.W.3d at 927 (considering a parent's refusal to have her children take medically necessary medication in the best interest analysis).
The second and third Holley factors weigh in favor of termination.
c. Parental Abilities of the Individuals Seeking Custody
Under this factor, the trial court could consider that Mother did not seem to appreciate the danger of her behavior as evidence of her parenting abilities. The instability of her home life with C.B. and her use of drugs for almost a year after Child was removed from her care are also relevant to her parenting abilities. SeeIn Interest of X.R.L., 461 S.W.3d at 640 (holding that evidence of drug use during the course of termination proceedings is relevant to parenting abilities); see alsoIn re D.W., 445 S.W.3d at 926 (holding that the evidence of the second Holley factor is also relevant under the fourth). The fourth Holley factor weighs in favor of termination.
d. The Stability of the Home or Proposed Placement
The Department's only proposed placement for Child was with M.S. and J.S. However, M.S. testified that she and J.S. could not commit to caring for Child until he reached adulthood because she was seventy-five years old at the time of trial. The fifth Holley factor is neutral regarding termination.
e. Programs Available to Assist the Individuals Seeking Custody to Promote the Best Interest of the Child
There was no evidence in the record of the programs available to assist Mother in promoting Child's best interest if her parental rights were not terminated. The record reveals only that Mother was previously ordered to attend counseling and MHMR, and that she apparently made use of those services at some point during the case. The sixth Holley factor is neutral regarding termination.
f. Plans for the Child of the Individuals or the Agency Seeking Custody
When asked about her plans for caring for Child and ensuring his safety in the future, Mother replied that she would care for him “[t]he same way I've been doing, and the way I do for my other kids.” This statement does not mean that Mother is incapable of properly parenting Child, but the trial court could still properly consider it as supporting termination. By this statement, and her testimony in general, Mother did not seem to appreciate that her mental illness caused her to engage in behavior which was dangerous to Child. The seventh Holley factor weighs in favor of her termination.
g. The Acts or Omissions of the Parent that May Indicate that the Existing Parent–Child Relationship is not a Proper one and any Excuse for the Acts or Omissions of the Parent.
The Department argues that the record contains several acts and omissions which indicate that the relationship between Mother and Child might be improper. We agree. As we explained in greater detail under the second and third factors, Mother subjected Child to a series of unstable residences where they lived with an extremely aggressive man. She continued to test positive for drugs almost a year after Child was first removed from her care. And, despite the role of mental illness in the incident which began this case, Cardenas' testimony suggests that Mother took her medications only sporadically.
Regarding Mother's excuses, if any, she certainly needs no excuse for having a severe mental illness. We find the efforts she made to treat her illness to be laudable. Nonetheless, we cannot ignore that Mother has also not explained how her care of Child will likely be any different going forward. The eighth and ninth factors weigh in favor of termination.
h. Summary
Looking at the evidence of the Holley factors in the light most favorable to the trial court's verdict, we conclude that the evidence is legally sufficient because a reasonable trier of fact could form a firm belief or conviction that termination was in the best interest of Child. SeeIn re J.F.C., 96 S.W.3d at 266. We conclude the evidence is factually sufficient because the disputed evidence regarding the Holley factors is not so significant it would prevent a reasonable factfinder from forming a firm belief or conviction that termination was in Child's best interests. SeeIn re H.R.M., 209 S.W.3d at 108.
We overrule appellant's sole issue.
IV. Conclusion
We affirm the judgment of the trial court.
Dissenting Memorandum Opinion by Justice Benavides1
Appellant B.W. (“Mother”) challenges the legal and factual sufficiency of the evidence terminating her parental rights of her child, P.R.W. (“Child”). The majority concludes the evidence is legally and factually sufficient to support the termination of Mother's parental rights. I respectfully dissent.
In reviewing parental termination cases, we must start our analysis by keeping in mind that “parental rights are far more precious than any property right, and when the State initiates a termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.” In re E.R., 385 S.W.3d 552, 563 (Tex.2012).
After removing the child on January 21, 2014, in March 2015, the trial court found the Mother to be in compliance with the conditions required by the Department and ordered Child to be returned to Mother. The reunification took place in April 2015.
In June 2015, however, the Department became concerned by behavior Mother displayed during a home visit, as well as Mother having an unknown man, M.L., residing in her apartment. The trial court held an emergency hearing and ordered Child to be returned to M.S. and J.S. for the pendency of the case through termination.
I. Termination of Mother's Parental Rights
A. Statutory Acts or Omissions
I agree with the majority that there is legally and factually sufficient evidence to establish that Mother knowingly placed or allowed Child to remain in conditions or surroundings that endangered his physical or emotional well-being. See Tex. Fam.Code Ann. § 161.001(b)(1)(D). Since only one statutory act or omission is required to terminate parental rights, I agree that the majority does not need to address the other statutory acts referenced by the trial court. SeeIn re E.N.C., 384 S.W.3d 796, 803 (Tex.2012).
B. Best Interest of the Child
I likewise agree with the majority that the standard must decide how to “reconcile ‘a parent's desire to raise [the] child with the State's responsibility to promote the child's best interest.’ ” In re O.R.F., 417 S.W.3d 24, 39 (Tex.App.—Texarkana 2013, pet. denied) (citing In re E.R., 385 S.W.3d at 555 ). Most importantly, “there is a strong presumption that a child's interest is best served by preserving the conservatorship of the parents; however, clear and convincing evidence to the contrary may overcome that presumption.” Id.
In deciding what is in the “best interest of the child,” we look at factors known as the Holley factors to make a proper determination. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.1976). However in my analysis of these factors, I find that the Department has failed to meet its burden by clear and convincing evidence to terminate Mother's parental rights.
(1) the desires of the child
“When children are too young to express their desires, the factfinder may consider whether the children have bonded with their foster family, are well-cared for by them, and have spent minimal time with the parent.” In re S.R., 452 S.W.3d 351, 369 (Tex.App.—Houston [14th Dist.] 2014, pet. denied). “A child's need for permanence through the establishment of a ‘stable permanent home’ has sometimes been recognized as the paramount consideration in a best-interest determination.” Id. “Therefore, evidence about the present and future placement of the children is relevant to the best-interest determination.” Id.
At the time of trial, Child was a toddler, approximately three and a half years old. His wishes and desires directly were unknown to the court. While the majority states Child did not express or was not mature enough to have an opinion on returning to Mother's care, the testimony presented differs. M.S. testified that Child would ask M.S. about Mother. M.S. stated that “sometimes he [Child] asks me do you like my mother? And, of course, I'll tell him yes and he cries and he wants to see his mama. And then he says, my mama has this, my mama has that, and then he'll forget about that.” Additionally, M.S. testified, “At one time, he [Child] got so mad about one of our incidents there that he couldn't see his mama, and he went in behind the commode and wouldn't come out.” The Department's witnesses also testified that Mother was loving towards Child and would bring him food and interact appropriately with Child during their visitations. It stands to reason based that on M.S.'s testimony, that Child was bonded with Mother, even at his young age.
Even though Child is young, it is clear from his statements that Child desires reunification with Mother. This factor weighs against termination.
(2) the emotional and physical needs of the child now and in the future
(3) the emotional and physical danger to the child now and in the future
(8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one
These three factors will be addressed together. The majority points to Mother's mental health issues as the main reason to support termination under these best interest factors but also refers to “inappropriate relationships,” substance abuse, and the inability to find Child's medications when asked.
“Mental illness or incompetence of a parent alone are not grounds for terminating the parent-child relationship.” In re C.M.B., 204 S.W.3d 886, 895 (Tex.App.—Dallas 2006, pet. denied). “However, if a parent's mental state causes her to engage in conduct that endangers the physical or emotional well-being of the child, that conduct can be considered in a termination proceeding.” Id. It is undisputed that Mother suffers from mental illness that requires medication and was the triggering factor for the Department to remove Child initially.
According to the medical records submitted into evidence, Mother was diagnosed with schizophrenia at the time of her commitment.
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Regarding Mother's mental health treatment, the majority finds that Mother inconsistently treated her illness. However, the Department presented no evidence to support its assertion. No past or present medical records or testimony from treating providers was introduced into evidence by the Department, except for the medical records from the date of removal. The majority relies on the testimony of the caseworker alone to find that Mother was not medically compliant during the June 2015 removal, even though Mother testified she complied with her medications throughout the pendency of the termination case. Also, the majority disregards the fact the trial court agreed Mother was compliant with the parenting service plan, which included medication compliance, in March 2015 when it returned Child to Mother's custody. Therefore, all the evidence the Department presented of non-compliance was from opinions and speculation. I would weigh this factor against termination.
Another major issue Mother faced during the removal of Child from her custody was positive drug tests. As the Department points out, Mother tested positive for amphetamines on the date of the initial removal of Child. Again in September and November, Mother tested positive for methamphetamines. In December 2014, Mother tested positive for marijuana. It is worth noting, however, that there were also times in 2014 that Mother tested negative for drugs.
Mother had a negative drug test result in early 2015. Although the Department states Mother was asked to take a drug test in April 2015 and did not comply, Cardenas admitted that she never followed up regarding the test and did not ask Mother for any other drug screens once Child was removed from Mother a second time. Therefore, even though Mother tested positive for drugs prior to 2015, she nevertheless showed progress when she tested negative in 2015. I would weigh this factor against termination.
Additionally, no evidence was presented to show that Child had ever been exposed to “drug-using, inappropriate boyfriends” or “inappropriate caregivers” at any point in his life. The only evidence regarding boyfriends came from Mother's testimony about C.B. Mother testified C.B. and her were in a relationship and lived together. Prior to the Department's involvement, Mother testified that C.B. was the cause of Mother's frequent relocations. Mother testified that C.B. was “like, 6'2‘, and when he talks, people get offen [ded].” C.B. was the only person Mother stated she left Child with other than M.S. while she worked. There were no allegations of abuse, neglect, or drug use made by the Department against C.B. Additionally, there was no evidence of domestic violence or any assaultive charges ever filed against C.B. The only information regarding C.B. came from Mother's testimony. Mother also testified that C.B. was incarcerated at the time of the trial on an unrelated gun charge and did not indicate to the trial court that she would continue her relationship with him after his release. The Department did not question Mother about the future of the relationship with C.B. either.
The Department also referred to M.L. as Mother's boyfriend, contrary to her testimony. Mother stated that M.L. was a “friend” and they did not have a violent relationship. Cardenas testified that M.L. seemed to have a mental illness or be under the influence of drugs in her opinion, but no evidence was presented supporting Cardenas's statement. However, the Department alleged that Mother did not have Child's best interest in mind when she left Child with “inappropriate caregivers” without specifying whom. No other evidence was presented that Mother had left Child with persons that caused concern. This weighs against termination.
However, I believe that an important factor to consider from the record is that in March 2015, the trial court found that Mother had substantially complied with her parenting service plan and returned Child to Mother's custody. The trial court's decision was based on the recommendations from the Department and Child's attorney ad litem, and shows that Mother was in compliance with all the requirements listed on her parenting plan, as well as medications. According to Cardenas, reunification was the ultimate goal in this case. With the trial court returning Child to Mother, I would conclude that Mother was in compliance with the parenting services plan.
I believe that the incident that triggered the June 2015 removal of Child is concerning because the Department should have done more to help Mother. The Department calls a police report admitted into evidence where Mother called earlier in the day a “senseless emergency call” instead of the more positive interpretation: Mother was concerned about Child's health and called for help. Due to the reports received, Cardenas visited Mother and discovered M.L. in Mother's home. Cardenas did not know who M.L. was or if he was residing in the home. Cardenas testified that M.L. was behaving erratically, but on cross-examination, she agreed M.L. was gesturing with his arms which made Cardenas afraid for her safety. Without any additional information, Cardenas told the trial court she believed that M.L. had some sort of mental illness, was on drugs, or both. However, other than Cardenas's opinions based on her observations, there was no other evidence offered.
Cardenas also testified that she believed Mother “was a danger to herself and others that day.” But when asked why she did not report the incident, Cardenas stated, “When I was there, I was concerned that she [Mother] was a danger to at least herself or others, but I just was trying to get [Child] out of there.” During follow-up questions, Cardenas admitted once Child was safe, she did not report anything. Cardenas does not further describe why or how Mother was a danger to herself or Child; she just said Mother was agitated, making confusing statements, and acting erratically. Knowing Mother's complete situation and why Child had initially been removed, Cardenas could have provided additional help instead of dropping Mother off on a street corner. I would hold that the factors presented above do not favor termination.
(4) the parental abilities of the individuals seeking custody
(5) the stability of the home or proposed placement
The majority holds that Mother does not seem to appreciate the dangers of her behavior and its effect on her parenting ability. They point to her relationship with C.B. and her drug use. Mother's drug use is very concerning; but her ability to test negative for drugs is a positive factor that shows an ability to change. I do not believe her relationship with C.B. is as troubling as the majority states it to be. Although Mother testified she moved frequently because C.B. “spoke his mind” and “offended people,” Mother made efforts to keep her family unit together. Mother also testified that she moved into M.S. and J.S.'s home with C.B., which all parties agree is a stable home environment. Mother also is no longer in a relationship with C.B., so his impact on Mother's life would be minimal at best. I would not factor C.B. into any analysis involved in this case. Mother did not articulate what specifics would be changed in her parenting of Child, but Mother was not pressed during her testimony as to what she can change or what programs she was given access to in order to make changes.
Most concerning is that even though the Department seeks long-term placement with M.S. and J.S., there is no indication M.S. and J.S. would be able to keep Child during the time necessary for the Department to find permanent placement for Child. At trial, M.S. testified that she thinks they can be a long term placement for Child if the trial court terminated Mother's rights. M.S. also stated she has an adult daughter with a terminal illness. M.S. testified to the following:
M.S.: We do have other family members and other children and stuff, so I can't forget them either. So, when we say long term, are we talking years? Are we talking months?
Dept.: When I'm asking long-term, I'm asking can do you do it to age 18?
M.S.: I don't think so. I'm 75 years old. He'll be taking care of me in ten years.
Dept.: Okay. And no one's saying that you have to take care of him until age 18. I'm trying to see what his long term options are. You're saying you would take care of him for now, but there's going to come a time when you can't?
M.S.: Yes.
However, during the pendency of this case, M.S. had to ask for Child to be removed from her home due to her daughter's medical emergency. Even with M.S.'s best intentions, there is no guarantee that M.S. would be able to house Child in the long term. These factors likewise weigh against termination.
(6) the programs available to assist these individuals to promote the best interest of the child
Mother was ordered to attend counseling and MHMR services as part of her parenting plan. The particulars of what specific treatment providers or programs, however, were not presented to the trial court during the termination hearing. In September 2014, it appears that the trial court ordered Mother to take a parenting class as well. The only information given to the trial court, however, was Cardenas's opinion that Mother did not comply with the services and the prior orders issued by the trial court finding Mother to not be in compliance with the parenting service plan. Additionally, what future programs would be available for Child in his placement home were not discussed. The lack of information presented weighs against termination.
(7) the plans for the child by these individuals or by the agency seeking custody
Next, the Department argues that Mother is not consistently stable and this pattern of instability will continue, thus affecting Child. While this argument is worth considering, the Department cannot justify removing a child solely because Mother has a mental illness. SeeIn re C.M.B., 204 S.W.3d at 895. Mother showed compliance with the parenting services plan shortly before the trial was held. In addition, she was testing negative for drugs in 2015. Although Mother stated on the record she would care for Child the same way she had, this statement does not mean she is not capable of being a proper parent. Throughout the time of the termination proceedings, Mother went from testing positive for drugs to testing negative. In addition, she finally was able to comply with the parenting services plan, which we must assume means she complied with the therapies and services required. M.S. testified that when Mother is on her medication for her mental illness, she is fine. Mother testified she was medication compliant and no evidence presented affirmatively disputed this information. Mother's efforts to change is relevant to this analysis.
Additionally, the Department has no long-term plans for Child established. The Department is relying on M.S. and J.S. to keep Child while they try to find a permanent placement. Evidence was presented that shows that M.S. and J.S. will not be able to keep Child in the long term. Mother, on the other hand, made efforts to change her life to keep her son and it should be noted. The evidence shows that Mother has shown she can change out of concern for the best interest of her child by complying with therapy and medications. This factor also weighs against termination.
(9) any excuse for the acts or omissions of the parent
From the outset of this case, the Department's main concern has been Mother's mental illness. Mother's commitment and diagnosis for mental illness is concerning, but parental rights cannot be terminated due to mental illness alone and without considering any progress made by the parent in managing her illness. See id. Mother voluntarily stayed at the hospital following her initial mental health commitment. Mother testified she was taking her medication and the trial court found she was compliant in her parenting services plan in March 2015, which included counseling services and MHMR treatment. This factor weighs against termination.
II. Conclusion
In reviewing the evidence presented under the Holley factors, I would agree that the evidence is legally sufficient. SeeIn re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). However, I would hold that the evidence is factually insufficient to support the trial court's finding that termination was in the child's best interest. SeeIn re H.R.M., 209 S.W.3d 105, 108 (Tex.2006) (per curium). For this reason, I respectfully dissent and would reverse the trial court's judgment and remand this case for a new trial.