In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00133-CV
______________________________
IN THE INTEREST OF A.L.M. AND
S.M.M., MINOR CHILDREN
On Appeal from the 307th Judicial District Court
Gregg County, Texas
Trial Court Nos. 2007-2232-DR & 2008-721-DR
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
OPINION
K.M. and J.M. appeal the trial court's order terminating their parental rights to A.L.M. and
S.M.M. K.M. is the biological mother of B.L.S.,1 A.L.M., and S.M.M. J.M. is the biological father
of sons A.L.M., age seven, and S.M.M., age one.
The sole basis for termination in this case is based on the trial court's findings of the elements
of the rarely-utilized Section 161.003 of the Texas Family Code2 which, generally, provides as a
ground for termination a parent's mental illness or deficiency and the resulting inability to meet the
child's mental, physical, and emotional needs. See TEX . FAM . CODE ANN . § 161.003 (Vernon 2008).
The parents contend the evidence is legally and factually insufficient to satisfy the elements of
Section 161.003 of the Texas Family Code because the Texas Department of Family and Protective
Services (Department) did not prove by clear and convincing evidence that both K.M. and J.M. have
a mental or emotional illness or mental deficiency that in all reasonable probability will render both
of them unable to provide for both A.L.M.'s and S.M.M.'s physical, emotional, and mental needs
until the eighteenth birthday of each child. We agree.
1
K.M. signed an affidavit of relinquishment of her parental rights to B.L.S. to facilitate the
adoption of B.L.S. by one of K.M.'s sisters, not the one living with the accused abuser. The parents
concede that the termination of parental rights to B.L.S. is not at issue. She will be discussed only
as she relates to the initial removal of and termination of rights to the other children.
2
Section 161.003 of the Texas Family Code has some distinct elements, including timing
elements, not found in the more commonly-used grounds of Section 161.001 of the Texas Family
Code. See TEX . FAM . CODE ANN . § 161.001 (Vernon Supp. 2009).
2
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Leading up to Removal of Two Older Children
In 2000, the oldest daughter, B.L.S., began making outcries of sexual abuse by Berry
Robertson. Robertson is the common-law husband of K.M.'s sister Sonna and is also second cousin
to K.M. and Sonna. The Department ultimately ruled out these allegations. She again made outcries
in 2001 which the Department gave a "reason to believe" designation, but eventually dismissed. In
2007, B.L.S. again made outcries of sexual abuse by Robertson. At some later date, the family lived
with or near J.M.'s father, Reuben de la Rosa, a convicted sex offender. As a result, in October 2007,
the Department removed B.L.S. and A.L.M. and filed a petition for termination of parental rights on
four grounds under Section 161.001 of the Texas Family Code.3
B. A New Child and New Allegations
During the pendency of that suit, K.M. gave birth to another son, S.M.M., in January 2008.
Three months after his birth, the Department removed S.M.M. and filed a petition for termination
of parental rights in a new and separate cause number (2008-721-DR), seeking termination on the
same four grounds as were sought in the case involving B.L.S. and A.L.M. On September 18, 2008,
the Department amended its petition as to all three children and referencing one cause number (2007-
2232-DR), to add the ground for termination under Section 161.003 of the Texas Family Code. The
3
The Department sought termination as to the children based on Sections 161.001(1)(D), (E),
(N), and (O). Those grounds, generally, involve dangerous conditions, dangerous conduct,
constructive abandonments, and failure to comply with a court order, respectively.
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hearing was held, at the end of which the Department affirmatively abandoned its allegations of
constructive abandonment.
C. The Trial Court's Ruling
A trial to the bench on September 29–30, 2008, resulted in termination of parental rights as
to B.L.S. based on an affidavit of relinquishment and termination and as to A.L.M. and S.M.M.
based only on the mental illness/deficiency ground under Section 161.003 of the Texas Family Code.
The trial court explained it did not find that K.M. and J.M. knowingly put the children in dangerous
conditions. The trial court did not orally find that J.M. failed to pay ordered child support, but the
4
final order included that finding.4 The trial court signed its consolidated5 final order
November 20, 2008.
The parents filed a statement of points on appeal November 3. See TEX . FAM . CODE ANN .
§ 263.405(b) (Vernon 2008). At the Section 263.405 hearing, the trial court found that appellant
parents' appeal would not be frivolous and that they were indigent and, thus, entitled to a free record
and an appointed attorney for appeal. K.M. and J.M. filed their notice of appeal November 10, 2008,
and their amended notice of appeal November 24, 2008. TEX . FAM . CODE ANN . § 263.405(d), (e)
(Vernon 2008). The parents appeal the order as to A.L.M. and S.M.M., but not as to B.L.S.
4
Before a final order was signed, the attorneys and trial court realized that trial in regard to
S.M.M. started before the Department had been his managing conservator for six months, although
it did begin 181 (trial court says 182) days after the Department had filed its original petition as to
S.M.M. (on April 1, 2008). TEX . FAM . CODE ANN . § 161.003(a)(3), (c). In an attempt to cure the
error, on October 21, 2008, the trial court granted a new trial as to S.M.M., took judicial notice of
the testimony from the September 29–30 trial, then entered an order only as to S.M.M. and another
order as to the two older children. All parties appeared at that hearing and re-urged the evidence
presented three weeks earlier at the hearing. On the record, the trial judge stated she had found
earlier that J.M. had not paid child support as ordered. The trial court's ruling does not confirm that
statement.
5
Pursuant to the parents' motion to reform the order of termination and to combine the
separate orders as to S.M.M. and as to B.L.S. and A.L.M. for purposes of appeal, the trial court
reformed those two final orders into one final order November 20, 2008.
The trial court had earlier signed an order of consolidation November 7, 2008, to make clear
the two causes were combined. No written order consolidating the causes before trial appears in the
clerk's record, but the trial court makes reference in its written order to its June 11 oral declaration
that the two causes were to be consolidated. The docket sheet for the S.M.M. cause states it was
consolidated with the B.L.S. and A.L.M. cause, but no consolidation order was signed before trial.
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II. APPLICABLE LAW
A. The Family Code
Section 161.003 provides as follows.
(a) The court may order termination of the parent-child relationship in a suit filed
by the Department of Protective and Regulatory Services if the court finds that:
(1) the parent has a mental or emotional illness or a mental deficiency that
renders the parent unable to provide for the physical, emotional, and mental
needs of the child;
(2) the illness or deficiency, in all reasonable probability, proved by clear and
convincing evidence, will continue to render the parent unable to provide for
the child's needs until the 18th birthday of the child;
(3) the department has been the temporary or sole managing conservator of
the child of the parent for at least six months preceding the date of the
hearing on the termination held in accordance with Subsection (c);
(4) the department has made reasonable efforts to return the child to the
parent; and
(5) the termination is in the best interest of the child.
(b) Immediately after the filing of a suit under this section, the court shall appoint
an attorney ad litem to represent the interests of the parent against whom the suit is
brought.
(c) A hearing on the termination may not be held earlier than 180 days after the
date on which the suit was filed.
(d) An attorney appointed under Subsection (b) shall represent the parent for the
duration of the suit unless the parent, with the permission of the court, retains another
attorney.
TEX . FAM . CODE ANN . § 161.003.
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B. Standard of Review
In a termination of parental rights appeal, legal and factual insufficiency points require a
heightened standard of review. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re C.H., 89 S.W.3d
17, 25 (Tex. 2002). In reviewing the legal sufficiency, we view all the evidence in a light most
favorable to the finding to determine whether a trier of fact could reasonably have formed a firm
belief or conviction about the truth of the State's allegations. J.F.C., 96 S.W.3d at 266; In re T.H.,
131 S.W.3d 598, 602 (Tex. App.—Texarkana 2004, pet. denied). In reviewing the factual
sufficiency of the evidence, we must ask whether the evidence is such that a finder of fact could
reasonably form a firm belief or conviction about the truth of the State's allegations. C.H., 89
S.W.3d at 25.
C. Cases Addressing and Affirming Termination Under Section 161.003
If not all, then the vast majority of cases addressing Section 161.003 have affirmed the trial
court's judgment terminating parental rights.6 To illustrate the evidence necessary to affirm, we will
discuss some of those cases.
In Liu v. Department of Family and Protective Services, 273 S.W.3d 785 (Tex.
App—Houston [1st Dist.] 2008, no pet.), the mother suffered from schizophrenia and repeatedly
refused to take medicine. She was hospitalized several times and repeatedly engaged in
6
The Fort Worth court suggested that the evidence in In re J.P., No. 02-07-00026-CV, 2008
Tex. App. LEXIS 773 (Tex. App.—Fort Worth Feb. 4, 2008, no pet.) (mem. op.), would have been
insufficient. However, as the court noted, the Department did not allege Section 161.003 as grounds
for termination in that case.
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inappropriate and even violent behavior, from dancing nude through the house to attacking a grocery
clerk. Id. at 787, 792–93. She was reported as not changing her child's diaper properly; provision
of food was unknown. Id. at 787. She threatened to shoot Department employees and reported
hearing female voices telling her negative things. Id. at 793. The court concluded that the evidence
showed she could not properly care for her child without taking medication, which she refused to
do and, as a result, had a history of hospitalization and demonstrated inappropriate, dangerous
behavior. Id. at 794.
In Rodriguez v. Texas Department of Family and Protective Services, No. 03-05-00321-CV,
2006 Tex. App. LEXIS 4338 (Tex. App.—Austin May 19, 2006, no pet.) (mem. op.), the mother
challenged the factual sufficiency of the evidence that established that the mother had mild mental
retardation and dependent personality disorder. She suffered from seizures as well. Id. at *8. The
dependent personality disorder prevented her from functioning as an independent adult. Id. at *9–10.
Her child suffered from seizure disorder, brain encephalopathy, developmental delays, reflux
disorder, and reactive airway disease. Id. at *3. As a result, the child had to regularly visit a
neurologist, pediatrician, gastroenterologist, and ENT doctor. Id. Care for the "medically fragile"
child called for "strict seizure precautions," extensive and careful supervision, and medication
administration. Id. at *4, *19. The evidence showed the mother's low IQ and dependent personality
disorder prevented her from responding to the child's significant medical needs. Id. at *11, *13–14.
The mother's repeated failures to take her own medication reflected negatively on her ability to meet
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the child's medical needs. Id. at *12. She had limited ability to understand the child's medical needs
and limited ability to make independent decisions as to those needs. Id. at *10.
In Morales v. Texas Department of Family and Protective Services, No. 03-04-00003-CV,
2004 Tex. App. LEXIS 8752 (Tex. App.—Austin Sept. 30, 2004, no pet.) (mem. op.), a mildly
mentally retarded father challenged the factual sufficiency of the evidence. He suffered from short-
term memory loss, seizures, and impaired vision resulting from a brain injury sustained in a car
accident. Id. at *4. He also suffered from high blood pressure, diabetes, and dormant hepatitis C,
and he could not work or drive, and had extreme difficulty reading. Id. No personality disorder was
diagnosed, but the psychologist testified that he had antisocial and narcissistic tendencies. Id. at *5.
The child's prenatal drug addiction resulted in grand mal seizures, insomnia, and chronic reflux. The
child also had cerebral palsy, asthma, and delayed speech development. Id. at *2. Medical care
included one doctor's appointment per week, therapy twice a week, breathing treatments and multiple
medications twice a day, and "around the clock" care. Id. at *2–3. The father's low intellectual
functioning and personality traits prevented him from understanding or dealing with the child's
extensive medical needs; his deficiencies impaired his judgment and decision making. Id. at *13.
The court reviewed the legal and factual sufficiency that showed the mother was mentally
retarded and had a major depressive disorder with psychotic features. In re C.L., No. 04-03-00638-
CV, 2004 Tex. App. LEXIS 488, at *5 (Tex. App.—San Antonio Jan. 21, 2004, no pet.) (mem. op.).
She functioned as a pre-teen in her daily life and would do so for the rest of her life; she was not
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capable of meeting her children