Opinion issued May 03, 2012.
In The
Court of Appeals
For The
First District of Texas
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No. 01-11-00763-CV
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E.J., Appellant
V.
Department of Family & Protective Services, Appellee
On Appeal from the 315th Judicial District Court
Harris County, Texas
Trial Court Case No. 2010-02284J
MEMORANDUM OPINION
In this accelerated appeal,[1] appellant, E.J., challenges the trial court’s order, entered after a bench trial, terminating her parental rights to her legally-adopted, minor grandson. In her first through third issues, appellant contends that the evidence is legally and factually insufficient to support the trial court’s findings that she engaged in conduct or knowingly placed the child with others who engaged in conduct that endangered the physical or emotional well-being of the child,[2] she has a mental or emotional illness or a mental deficiency that renders her unable to provide for the physical, emotional, and mental needs of the child,[3] and termination of her parental rights was in the best interest of the child.[4] In her fourth and fifth issues, appellant contends that the trial court abused its discretion in granting the request of appellee, the Department of Family and Protective Services (“DFPS”), for an oral trial amendment to include an additional ground for termination and her trial counsel provided her with ineffective assistance of counsel.
We affirm.
Background
Cimberli Darrough, the caseworker assigned to assist the child, testified that the child, who had been diagnosed with “bipolar, ADHD, maybe depressive disorder with psychotic features,” was currently taking the medications Focalin and Invaegar. She explained that the child had been living with appellant, his biological grandmother and adoptive mother, since he was an infant. At the time of trial, the child was 11 years old, and appellant was almost 81 years old. DFPS took custody of the child after he had “attacked his grandmother on two occasions.” During the second attack, the child had assaulted appellant “with a knife and threatened to cut off his penis.” Darrough was also concerned about “threatening letters” left in appellant’s home “that were written about killing [appellant] and [the child] and ghosts.” Appellant told Darrough that the notes came from her son, D.B., the child’s biological father, but Darrough opined that appellant’s explanation was not possible because D.B. was incarcerated at the time. Darrough also testified that appellant “was not properly administering [the child’s] medication.”
Darrough further testified that appellant would often forget her appointments to visit the child and “regularly frequents the CPS office demanding to have visits . . . even when visits are not scheduled.” On three occasions, appellant “had to be escorted out by the CPS officer.” Darrough also noted “inappropriate actions” during appellant’s visits, such as “one occasion where [the child] was too close and was almost sitting on [appellant’s] lap.” On another occasion, appellant “became irate” and approached Darrough “in a defensive manner,” so Darrough “exited the room to avoid . . . confrontation and [a] security officer was called.” Pursuant to DFPS’s request, appellant underwent a psychological examination, and the psychologist recommended that “if dementia was found,” the child “should be removed from [appellant].” Appellant also underwent a psychiatric evaluation, after which she was prescribed Arocet for “mild cognitive impairment” and assigned to take parenting classes, which she completed. On cross-examination, Darrough admitted that the psychological assessment revealed that appellant “would be capable of taking care of [the child] if she had some assistance.”
Dr. Jenny Stadler, a clinical psychologist, testified that she performed a psychological evaluation of appellant. She noted that appellant “was exhibiting signs of adjustment disorder” because of stress related to the child being taken from her home. Stadler explained that because appellant demonstrated “some pretty significant impairments in memory and some slight impairments in visual conception,” she recommended that appellant see a neuropsychologist to examine her for possible dementia. Stadler’s final diagnosis was that appellant showed “evidence of mild cognitive impairment that can indicate possible dementia.” She thought that appellant’s symptoms could make parenting the child “difficult if she couldn’t remember when to give [him] medication or how to treat him consistently.” Based on appellant’s statements to her, Stadler “firmly” believed that D.B. “had been in [appellant’s] home” until Stadler was later informed that D.B. was actually incarcerated. On cross-examination, Stadler explained that, looking at the medical records, appellant had never been diagnosed with dementia.
Appellant testified that she first started caring for the child when he was “a few months old” because D.B. refused to care for him. Appellant asserted that the child did not attack her but “was attacking himself” because “his father came and put notes under the doors.” She noted that she had seen D.B. on several occasions since Hurricane Ike in September 2008. On cross-examination, appellant further asserted that she had once called for emergency assistance upon finding D.B. in her home, but the police officer who responded did not arrest D.B.
Sufficiency of the Evidence
In her first issue, appellant argues that the evidence is legally and factually insufficient to support the trial court’s finding that she engaged in conduct that endangered the physical or emotional well-being of the child because “DFPS has not shown any course of conduct by [appellant] to prove endangerment.” See Tex. Fam. Code Ann. § 161.001(E) (Vernon Supp. 2011). In her second issue, appellant argues that the evidence is legally and factually insufficient to support termination of her parental rights on the ground of her mental deficiency because “DFPS has not proven the element of mental deficiency by clear and convincing evidence” and “DFPS did not make reasonable efforts to return the child.” See id. § 161.003 (Vernon 2008). In her third issue, appellant argues that the evidence is legally and factually insufficient to support the trial court’s finding that termination of her parental rights was in the best interest of the child because the child has lived with appellant “almost his entire life,” the child and appellant are “close and bonded,” and “[n]o expert testimony was offered to link the child’s needs with any alleged neglect on [appellant’s] part.” See id. § 161.001(2).
Standard of Review
Because termination of parental rights “is complete, final, irrevocable, and divests for all time that natural right . . . , the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent’s rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Santosky v Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982); Richardson v. Green, 677 S.W.2d 497, 500 (Tex. 1984)). Clear and convincing evidence is “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 (Vernon 2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the standard of proof is “clear and convincing,” the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. In re J.F.C., 96 S.W.3d at 264–66.
In conducting a legal-sufficiency review in a parental-rights termination case, we must determine whether the evidence, viewed in the light most favorable to the finding, is such that the fact finder could reasonably have formed a firm belief or conviction about the truth of the matter on which DFPS bore the burden of proof. See id. at 266. In viewing the evidence in the light most favorable to the finding, we “must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so,” and we “should disregard all evidence that a reasonable fact finder could have disbelieved or found to be incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing In re J.F.C., 96 S.W.3d at 266).
In conducting a factual-sufficiency review in a parental-rights termination case, we must determine whether, considering the entire record, including evidence both supporting and contradicting the finding, a fact finder reasonably could have formed a firm conviction or belief about the truth of the matter on which the State bore the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should consider whether the disputed evidence is such that a reasonable fact finder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266–67. “If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
Endangerment
In proceedings to terminate the parent-child relationship brought under section 161.001, DFPS must establish, by clear and convincing evidence, one or more of the acts or omissions enumerated under subsection (1) of section 161.001 and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001. Both elements must be established, and termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). “Only one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Under section 161.001(1)(E), a court may terminate the parent-child relationship if the court finds by clear and convincing evidence that the parent has engaged in conduct, or knowingly placed the child with persons who engaged in conduct, that endangers the physical or emotional well-being of the child. Tex. Fam. Code Ann. § 161.001(1)(E). “Endanger” means to expose to loss or injury or to jeopardize. Boyd, 727 S.W.2d at 533. Although such endangerment requires more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffer injury. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). The specific danger to the child’s well-being may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).
While mental incompetence or mental illness alone are not grounds for termination of the parent-child relationship, when a parent’s mental state allows her to engage in conduct that endangers the physical or emotional well-being of the child, that conduct has bearing on the advisability of terminating the parent’s rights. In re C.D., 664 S.W.2d 851, 853 (Tex. App.—Fort Worth 1984, no pet.) (citing Carter v. Dallas County Child Welfare Unit, 532 S.W.2d 140 (Tex. Civ. App.—Dallas 1976, no writ)).
Here, Darrough testified,
[The child] came into care after he had attacked his grandmother on two occasions. There was a second occasion where he attacked her with a knife and threatened to cut off his penis. HPD was called out and there were two adult protective cases involving [the child] and grandmother. His grandmother was not properly administering his medication.
In addition to her testimony regarding the child’s two attacks and the determination that appellant “was not properly administering” the child’s medication, Darrough testified that appellant “forgets her appointments” and “regularly frequents the CPS office demanding to have visits with [the child] even when visits are not scheduled.” Darrough also noted that although appellant asserted that D.B. had visited her apartment and left various threatening notes, Adult Protective Services informed Darrough that appellant’s son was incarcerated at those times.
In regard to the child, Darrough testified that he suffered from “bipolar, ADHD, maybe depressive disorder with psychotic features.” In her psychological evaluation, Dr. Stadler noted,
[The child] has been diagnosed with severe mental illness, including Bipolar Disorder and Attention-Deficit/Hyperactivity Disorder, and [the child] acknowledged that when he does not take his prescribed medication he can become violent with [appellant].
In regard to appellant’s mental faculties, Dr. Stadler, in her psychological evaluation, reported that appellant demonstrated “Severe Impairment” in memory, and she, at trial, testified that appellant demonstrated “some pretty significant impairments in memory and some slight impairments in visual conception.” She determined that appellant’s “profile suggests Mild Cognitive Impairment, although accurate diagnosis of MCI must be made via a neurological evaluation.” In the psychological evaluation, Dr. Stadler recommended that appellant
participate in a neuropsychological evaluation regarding the possibility of Mild Cognitive Impairment, and any possible dementia process. If dementia of any kind is diagnosed, it is recommended that [the child] be placed out of [appellant’s] sole custody.
(emphasis in original). Dr. Stadler further testified that “[t]here is evidence of mild cognitive impairment that can indicate possible dementia” and mild cognitive impairment “can be a progressive illness” that “can get worse.” She also noted that a psychiatric report of appellant included “a diagnosis of mild cognitive impairment.” Stadler explained that mild cognitive impairment “is generally related to memory issues” and “[i]f a person can’t remember to take a child to a doctor’s appointment, give them medication, those kinds of things, that is a concern.”
Finally, the record reveals that appellant’s testimony was occasionally incoherent or non-responsive to counsel’s questioning. For example, she was non-responsive to her own counsel’s questions regarding whether she would cooperate with the court in the future to receive possession of the child, as indicated in the following exchange,
[Appellant’s Counsel]: But if the Judge decided that he couldn’t come back with you today, would you be willing to work with CPS more?
[Appellant]: I will tell you the truth. When I needed CPS eleven years ago – and ten years ago, when my son went to Canada and came back, I would have appreciated what I received otherwise. I can handle [the child] now. I can show you his works now that he has done.
[Appellant’s Counsel]: But if the Judge says, no, he can’t come live with you, if that is what the Judge says. Would you be willing to work with CPS and do some therapy with him and do the things necessary to get him home?
[Appellant]: I would need [the child] as soon – before the sun sets this evening. Because I get to know him and I’ve gotten him to counselors and the school when he was old enough. Also used to visit, take him to the doctor and everything was working fine. He was really changing.
[Appellant’s Counsel]: When we talked outside, you agreed that you would work with CPS some more to get him back if that is what the Judge said you needed to do?
[Appellant]: If CPS can tell me what they have or do better than what was done by the other group, I might say yes.
[Appellant’s Counsel]: But you would do it if the Judge said so, wouldn’t you?
[Appellant]: The Judge is the Judge, you know.
In addition, appellant’s testimony indicated that she may not fully appreciate the severity of the child’s mental illnesses. For example, when asked what the child’s “medical needs” were, she responded, “they gave him medication for the ADD thing, the pills.” When further pressed to describe the child’s “diagnoses” or “diseases,” she responded, “Today I am here, so I wouldn’t know.”
In sum, viewing the evidence in the light most favorable to the verdict, the evidence indicates that the child suffers from bipolar disorder and ADHD and could become violent when not given his medication. DFPS presented evidence that the child attacked appellant on at least two occasions, and Darrough opined that appellant was not properly administering the child’s medication. The medical testimony and psychological evaluation provides evidence that appellant has “severe” memory impairment and suffers from mild cognitive impairment and possible dementia. Darrough also testified that although appellant claimed that D.B. had visited her home recently, he was incarcerated at the time. And appellant’s own testimony demonstrates some evidence of her mental illness. From this evidence, the trial court could have reasonably formed a firm conviction or belief that appellant suffers from a mental illness that caused her to improperly administer the child’s medication, which, considering the child’s attacks on appellant, threats to harm himself, and his own mental illness, endangered the child’s physical and emotional well-being. See In re C.D., 664 S.W.2d at 853. Accordingly, we hold that the evidence is legally sufficient to support termination of appellant’s parental rights under section 161.001(1)(E).
In conducting our factual-sufficiency review, we consider the entire record, including evidence both supporting and contradicting the finding. In re C.H., 89 S.W.3d at 25. Despite her testimony regarding appellant’s memory impairment, Dr. Stadler, in her evaluation, stated that appellant’s “abilities in reasoning and judgment appeared to be intact.” At trial, Dr. Stadler testified that she thought that appellant could meet the child’s needs, but she was not sure whether appellant could do so on a “consistent basis without support.” She also explained that, after reviewing appellant’s psychiatric evaluation, appellant “seems to be responding” to medication and “[i]f she continues to respond . . . there is a possibility that [appellant’s condition] can improve.”
Despite some favorable testimony from Dr. Stadler, the trial court could have noted that she last evaluated appellant one year before the trial. In addition, from appellant’s own testimony and behavior at trial, and her continued belief that she had seen D.B. in her apartment when other evidence indicated that he was incarcerated, the trial court could have reasonably concluded that appellant’s mental illness endangered the child. And, from appellant’s assertion that the child had hid medication under his tongue, the trial court could have reasonably concluded that appellant could not properly give the child his medication, prompting the two attacks. See In re J.F.C., 96 S.W.3d at 266–67. Thus, considering the entire record, the trial court could have reasonably formed a firm conviction or belief that appellant had engaged in conduct that endangered the child’s physical and emotional well-being. Accordingly, we hold that the evidence is factually sufficient to support the termination of appellant’s parental rights under section 161.001(1)(E).
We overrule appellant’s first issue.
Best Interest of the Child
In determining whether the termination of appellant’s parental rights was in the child’s best interest, we may consider several factors, including (1) the child’s desires, (2) the current and future physical and emotional needs of the child, (3) the current and future physical danger to the child, (4) the parental abilities of the person seeking custody, (5) whether programs are available to assist the person seeking custody in promoting the best interests of the child, (6) plans for the child by the person seeking custody, (7) the stability of the home, (8) acts or omissions of the parent that may indicate that the parent-child relationship is not proper, and (9) any excuse for acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The Holley factors are not exhaustive, and there is no requirement that DFPS prove all factors as a condition precedent to parental termination. See In re C.H., 89 S.W.3d at 27.
In regard to the child’s desires, the child did not testify or speak directly to the trial court. Darrough admitted that the child was “bonded” to appellant, “loves her very much,” and “still expresses a desire to have a relationship with her.” Darrough also explained that although the child had expressed a desire to live with appellant “many months ago,” the child, more recently, “has asked his foster mother if she would adopt him.” In regard to the child’s current and future physical and emotional needs, there is substantial evidence that the child had pressing and significant needs. Darrough testified that the child suffers from “bipolar, maybe depressive disorder with psychotic features.” In her psychological evaluation of appellant, Dr. Stadler noted that the child “has been diagnosed with severe mental illness, including Bipolar Disorder and Attention-Deficit/Hyperactivity Disorder, and [the child] has acknowledged that when he does not take his prescribed medication he can become violent.” Dr. Stadler explained that the child “clearly has a need for medication and consistent behavior.” In regard to current and future physical danger to the child, Darrough testified that the child had twice attacked appellant and threatened to harm himself as a result of appellant improperly administering his medication. She also described “threatening letters” found around the house “written about killing [appellant] and [the child] and ghosts.” And, in her psychological evaluation, Dr. Stadler noted that Adult Protective Services had concluded that the letters were “most likely written by [the child].”
In regard to the parental abilities of the parties seeking custody, as stated above, there is significant evidence regarding appellant’s mild cognitive impairment, “significant” memory impairment, possible dementia, and possible hallucinations involving D.B. Dr. Stadler testified that she believed that appellant could meet the child’s needs with “support,” but “it could be difficult if she couldn’t remember when to give medication or how to treat him consistently because she couldn’t remember what she’d done the day before.” In contrast, Darrough testified that the child’s foster parent treats the child’s mental illness “appropriately” and “does very, very well with” him. She concluded that the foster mother could meet “all of [the child’s] physical and emotional needs.” In regard to the programs available to assist appellant, Darrough testified that appellant did complete parenting classes, undergo psychological and psychiatric evaluations, and attend supportive counseling, pursuant to her Family Service Plan. However, the trial court could have reasonably discounted the efficacy of these programs by noting her behavior and testimony during trial. Darrough also explained that the child’s therapist advised against family therapy because the child “has some psychological issues” that he felt needed to be under control before he engaged in family therapy with appellant.
In regard to the plans for the child and stability of the home, Darrough testified that the foster mother stated “that she loves [the child] and he is a part of her family already.” Darrough explained that it was not “typical” for a foster parent to be willing to adopt “a child that age with his conditions.” She also indicated that the foster parent would allow the child to “continue to have a relationship” with appellant. On the other hand, the two reported attacks on appellant by the child, the “threatening letters” found in appellant’s home, and appellant’s own mental condition indicate instability in her home. In regard to any act or omissions that may indicate that the existing parent-child relationship is not proper, Darrough testified that at one visit, “[the child] was too close [to appellant] and was almost sitting on her lap,” and appellant later became “belligerent.” At another visit, appellant “became irate,” approached Darrough “in a defensive manner,” and had to be escorted from the room by a security officer.
In sum, the evidence demonstrates that appellant suffers from her own mental illnesses, which make caring for the child’s significant physical and emotional needs extremely difficult. Although there is some evidence that appellant’s condition was “improving,” the trial court could have discounted this claim, observing appellant’s non-responsive testimony at trial. And, although there is evidence that appellant and the child are bonded, the trial court could have reasonably concluded that the child’s health would be in significant danger if he were to continue living with appellant. It could also have taken into account the foster parent’s assertion that she would allow the child and appellant to continue to have a relationship. Accordingly, we hold that the evidence is legally and factually sufficient for the trial court to reasonably form a firm belief or conviction that termination of appellant’s parental rights was in the child’s best interest.
We overrule appellant’s third issue. [5]
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
[1] See Tex. Fam. Code Ann. § 263.045(a) (Vernon Supp. 2011).
[2] See id. § 161.001(1)(E) (Vernon Supp. 2011).
[3] See id. § 161.003 (Vernon 2008).
[4] See id. § 161.001(2).
[5] Having concluded that the evidence is legally and factually sufficient to support termination of appellant’s parental rights under section 161.001(1)(E), we need not address appellant’s second issue in which she challenges the sufficiency of the evidence under section 161.003. See In re A.V., 113 S.W.3d at 362. Furthermore, we need not address appellant’s fourth issue, in which she argues that the trial court erred in granting DFPS’s request for an oral trial amendment to include section 161.003 as an additional ground for termination, or her fifth issue, in which she argues that she received ineffective assistance of counsel because her trial counsel failed to preserve error regarding the oral trial amendment.