in the Interest of S.A.G., E.J.G., and N.S.G., Children ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-125-CV
IN THE INTEREST OF S.A.G.,
E.J.G., AND N.S.G., CHILDREN
------------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
Introduction
Appellant A.G. appeals the trial court’s order terminating her parental
rights to her children S.A.G., E.J.G., and N.S.G. 2 In two points, A.G. contends
that the evidence presented at trial was legally and factually insufficient to
support two of the trial court’s three statutory termination findings and was
1
 See Tex. R. App. P. 47.4.
2
 To protect the privacy of the parents and children involved in this
appeal, we identify them by initials only. See Tex. R. App. P. 9.8(b); Tex. Fam.
Code Ann. § 109.002(d) (Vernon 2008).
factually insufficient to prove that termination of the parent-child relationship
was in the children’s best interests. See Tex. Fam. Code Ann.
§ 161.001(1)(D), (E), (M) & (2) (Vernon Supp. 2009). We affirm.
Background Facts
Appellant A.G. (Mother) is the biological mother, and her husband C.S.G.
(Father) is the presumed biological father, of S.A.G., E.J.G., and N.S.G., the
three children who are the subject of this suit. Mother and Father were married
on March 20, 2005. Daughter S.A.G. was born on August 18, 2005, son
E.J.G. was born on June 8, 2006, and son N.S.G. was born on September 22,
2008, after this suit had been filed.
In March 2008, the Texas Department of Family and Protective Services
(the Department) received allegations that Mother and Father had neglectfully
supervised and physically abused S.A.G. and E.J.G. A Department caseworker
investigated and observed S.A.G. and E.J.G. strapped to and hanging over their
high chairs, screaming and crying. Mother admitted to the caseworker that she
had left both children in their high chairs while she and Father slept and that
she has screamed and cursed at the children. Mother told the caseworker that
she was not able to care for S.A.G. and E.J.G. at their current ages but that
she was able to take care of babies. Mother was the children’s sole care
2
provider for six to eight hours per day while Father worked outside the home
as a driver and helper at Pizza Hut.
Mother’s extensive history with the Department began when she was a
child. In 1988, Mother was removed from her mother and placed in foster care
after being physically abused by her mother and sexually abused by her
mother’s boyfriends. Mother became involved with the Department in 2000
regarding her own children. In November 2003, a court involuntarily terminated
Mother’s parental rights to her third child, born in April 2003, based on child
endangerment findings under Texas Family Code section 161.001(1)(D), (E),
and (N). Mother testified that she was dealing with “mental issues” at the
time, was not taking her medications, and alternated between living on the
streets and in her own apartment.
The Department removed S.A.G. and E.J.G. from Mother and Father’s
home, placed them in foster care, and filed suit in April 2008 for the children’s
protection, for temporary managing conservatorship, and for termination of
Mother’s and Father’s parental rights.
In September 2008, N.S.G. was born prematurely at thirty-three weeks.
The Department became involved with N.S.G. because S.A.G. and E.J.G. had
been removed and due to concerns about Mother’s abuse of prescription
3
medications. At the time, Mother was taking hydrocodone 3 every four to six
hours for back pain and Tegretol for her seizure and bipolar disorders. During
the investigation, Mother reported that a nurse had been concerned with her
abuse of hydrocodone during her pregnancy, but Mother denied the abuse.
Mother also stated that Tegretol caused sleepiness, and that she planned to use
a baby monitor to hear the baby crying and an alarm clock to time her naps
while the baby was sleeping. Also during the Department’s investigation,
Mother admitted that she and others called law enforcement to her home
approximately twenty to thirty times due to arguments with her husband,
among other reasons.
At the end of its investigation regarding N.S.G., the Department found
reason to believe the allegation of neglectful supervision but ruled out the
allegation of physical neglect. The Department amended its petition regarding
S.A.G. and E.J.G. to add N.S.G. Upon Father’s motion, the trial court ordered
S.A.G., E.J.G., and N.S.G. placed with the children’s paternal grandmother,
M.L.
3
 We take judicial notice that hydrocodone is “a potent analgesic
derivative of codeine.” Stedman’s Medical Dictionary 911 (28th ed. 2006); see
Tex. R. Evid. 201(b), (c) (stating that a court may take judicial notice of
adjudicative facts, including facts that are “not subject to reasonable dispute”
in that they are “capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned”).
4
In June 2008, the trial court approved and adopted the Department’s
service plan for Mother and Father. Under the service plan, Mother and Father
were required to maintain safe and appropriate housing, submit to a screening
conducted by the Texas Mental Health and Mental Retardation (MHMR)
Department and follow all recommendations from the screening, attend couples’
counseling sessions and parenting classes, submit to random drug screenings,
participate in a psychological evaluation and follow all recommendations from
the evaluation, and visit the children weekly.
Child Protective Services (CPS) ongoing caseworker Elizabeth Bowlen
reviewed Mother’s service plan with her on multiple occasions. Although
Mother began parenting classes, she did not complete them because she was
unable to make her appointments while in the hospital giving birth to N.S.G.
Mother completed her MHMR screening and MHMR made no recommendations.
Mother and Father maintained safe and appropriate housing. They both
attended couples’ counseling sessions and submitted to random drug screenings
when requested and no illegal drug use was indicated. Mother also participated
in a psychological evaluation as required under her service plan. Following the
psychological evaluation, Bowlen met with Mother and encouraged her to
continue to attend therapy to address issues surrounding the abuse and neglect
Mother experienced as a child and to address anger management issues.
5
In November 2008, after N.S.G.’s birth, Mother told Bowlen on two
separate occasions that she might want to relinquish her parental rights to the
children because she did not think that she could care for them. Mother
maintained her opposition to termination, however, based on her belief that she
and her children deserved to be together as a family. Also in November 2008,
Mother called Bowlen stating that she had sought help with postpartum
depression at the Women’s Center but that the doctor would not prescribe her
medication.
On February 9, 2009, approximately one month before trial, Mother
sought treatment at Parkland Hospital in Dallas after being referred there by her
neurologist. At Parkland, she was told that her blackouts were caused by
psychotic episodes, not epilepsy as previously diagnosed. After receiving this
revised diagnosis, Mother thought about taking her life by driving Father’s car
into the river but changed her mind because she loved her children and believed
they and Father needed her. Mother did not seek mental health services
following her thoughts of suicide, and she disagreed with the diagnosis that she
was suffering from depression at the time of trial.
This case was tried to the bench on March 10, 2009. The evidence
indicated that, in addition to the diagnosis of having blackouts caused by
psychotic episodes, Mother previously had been diagnosed with bipolar
6
disorder, sleep disorder, depression accompanied by thoughts of suicide,
scoliosis, asthma, high blood pressure, a heart murmur, and seizures. At the
time of trial Mother was taking Cymbalta for depression and bipolar disorder,
Ambian CR for a sleep disorder, Albuterol for asthma, and high blood pressure
medication. Mother testified that she had been prescribed Tegretol and Keppra
for seizures in the past but that she no longer was diagnosed with a seizure
disorder and was no longer taking seizure medication. Mother also had taken
prescription hydrocodone, Ibuprofen, Tylenol, and Excedrin for pain
management, Zoloft, Paxil, Depakote, Dilantin, and Pulmicort.
Father testified that Mother’s IQ is not very high. 4 Mother admitted
problems with memory lapses, but she did not recall when they began. She
stated that her memory problems did not affect her parenting and that she has
never forgotten to feed her children or change their diapers. Mother reported
becoming agitated during her psychological evaluation because she was not
able to remember instructions and perform the assigned tasks.
Mother admitted that she experienced blackouts, but disagreed with the
diagnosis that they were caused by psychotic episodes. She did not recall
blacking out while caring for S.A.G. and E.J.G. by herself. Mother also testified
4
 No evidence was introduced regarding the administration of any formal
IQ testing or any such test’s results.
7
that she only knew when she had blacked out if Father told her, and that
otherwise she was not aware of blacking out in the past. Mother stated that
her blackout spells would not impact her ability to take care of her three
children because she would be able to rely upon Father’s support.
Mother testified that she has been depressed in the past and that she had
fallen short as a parent due to her depression; specifically, she had yelled and
cussed at her children. Mother testified that she was working on this issue and
doing better.
Mother denied abusing prescription drugs, stating that she always took
her medication as prescribed. She testified that she had a history of taking
hydrocodone as frequently as every four to six hours for back pain. Mother
admitted that, in the months before trial, she had obtained more than three
prescriptions for hydrocodone for her back pain and finished a one-month
supply of hydrocodone in fifteen days. Mother also stated that she discussed
this case with her family physician, and he stated that they would “lower [her]
medication to where [she is] more stable enough to care for the children” if they
were returned to her.
Father never knew Mother to harm the children and had no concerns
about her ability to provide for their physical needs. He stated, however, that
he thought she was in need of counseling for depression as recently as one
8
month before trial. Father also stated that, if the children were returned to him
and Mother, he would seek help from a nanny so that they can work
themselves back into caring for small children. Mother also told the court that
she would prefer to have a nanny with her when her husband was at work.
At trial, the Department also introduced a certified copy of the November
2003 order of termination of Mother’s parental rights to her third-born child,
K.L.J. Mother’s rights to K.L.J. were terminated involuntarily upon court
findings that Mother had knowingly placed or knowingly allowed her to remain
in conditions or surroundings which endangered her physical or emotional
well-being, engaged in conduct or knowingly placed her with persons who
engaged in conduct which endangered her physical or emotional well-being, and
constructively abandoned her. 5 See Tex. Fam. Code Ann. § 161.001(1)(D), (E),
& (N) (Vernon 2008 & Supp. 2009).
At the end of this trial, the court terminated Mother’s parental relationship
with the children. 6 The trial court found that Mother (1) knowingly placed or
knowingly allowed the children to remain in conditions or surroundings which
5
 In March 2002, Mother voluntarily relinquished her rights to her first
child, born in November 2000. In December 2002, Mother voluntarily
relinquished her rights to her second child, born in April 2002, because Mother
did not think that she could meet the child’s daily needs.
6
 The trial court did not terminate Father’s parental rights.
9
endangered their physical or emotional well-being, (2) engaged in conduct or
knowingly placed the children with persons who engaged in conduct which
endangered their physical or emotional well-being, and (3) had previously had
her parent-child relationship terminated with respect to another child based on
an adverse finding regarding these previous two standards. Id.
§ 161.001(1)(D), (E), & (M). The court also found that termination of Mother’s
parental relationship with the children was in their best interests. Id.
§ 161.001(2). The court named the Department managing conservator, Father
joint possessory conservator with right of reasonable access and possession,
and M.L. and C.L. (Father’s parents) joint possessory conservators with primary
right of possession. The trial court also ordered Father, M.L., and C.L. not to
allow Mother to have contact with the children or allow the children to enter
Father’s residence while he resided with Mother. Mother timely filed this
appeal.
Standard of Review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745,
758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547
(Tex. 2003). “While parental rights are of constitutional magnitude, they are
10
not absolute. Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional
and physical interests of the child not be sacrificed merely to preserve that
right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the
State seeks not just to limit parental rights but to erase them permanently—to
divest the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child’s right to inherit. Tex.
Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick v. Smith, 685 S.W.2d 18,
20 (Tex. 1985). We strictly scrutinize termination proceedings and strictly
construe involuntary termination statutes in favor of the parent. Holick, 685
S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort Worth
2008, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination
is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established;
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).
11
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (Vernon 2008).
Evidence is clear and convincing if it “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.” Id. § 101.007 (Vernon 2008). Due process demands this
heightened standard because termination results in permanent, irrevocable
changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex.
2002); see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting
standards for termination and modification).
Endangerment
In her first issue, Mother contends that the evidence is legally and
factually insufficient to support the trial court’s endangerment findings under
subsections 161.001(1)(D) and (E) of the Texas Family Code.
Along with a best interest finding, a finding of only one ground alleged
under family code section 161.001(1) is sufficient to support a judgment of
termination. In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth
2007, no pet.). Although Mother appeals the court’s findings under
subsections (D) and (E), she fails to challenge its finding under subsection (M)
that her parental rights to a different child had previously been terminated under
subsection (D) or (E). The record includes a certified copy of the November 25,
12
2003, Order of Termination of Mother’s parental rights to K.L.J., the children’s
half-sister, based on endangerment findings under subsections (D), (E), and (N).
Therefore, we hold that the trial court had a legally sufficient basis to support
termination under section 161.001(1)(M), and we need not address Mothers’
challenge to the findings under (D) and (E). See Fletcher v. Dep’t of Family &
Protective Servs., 277 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.] 2009,
no pet.); see also In re B.K.D., 131 S.W.3d 10, 16 (Tex. App.—Fort Worth
2003, pet. denied) (explaining that “to be successful on appeal, the appellant
must establish that the . . . findings on all of the [Department’s] pleaded
grounds are unsupported by the evidence”); Green v. Tex. Dep’t of Protective
& Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.—El Paso 2000, no pet.)
(holding that, because the appellant “failed to challenge the legal or factual
sufficiency of the evidence with regard to [one of the statutory provisions], the
first element of involuntary termination c[ould] be affirmed based on th[at]
provision”). We overrule Mother’s first issue.
Best Interests of the Children
In her second issue, Mother contends that the evidence is factually
insufficient to support the trial court’s finding that termination of her parental
rights was in the children’s the best interests under subsection 161.001(2) of
the Texas Family Code.
13
Factual Sufficiency Review
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a factfinder could reasonably form a firm
conviction or belief that the parent violated at least one conduct provision of
section 161.001(1) and that the termination of the parent-child relationship
would be in the best interest of the child. Tex. Fam. Code Ann. § 161.001;
C.H., 89 S.W.3d at 28. If, in light of the entire record, the disputed evidence
that a reasonable factfinder could not have credited in favor of the finding is so
significant that a factfinder could not reasonably have formed a firm belief or
conviction in the truth of its finding, then the evidence is factually insufficient.
H.R.M., 209 S.W.3d at 108.
Best Interest Factors
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt
and permanent placement of the child in a safe environment is also presumed
to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (Vernon
2008). The following factors should be considered in evaluating the parent’s
willingness and ability to provide the child with a safe environment:
14
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm
to the child;
(4) whether the child has been the victim of repeated harm
after the initial report and intervention by the department or other
agency;
(5) whether the child is fearful of living in or returning to the
child’s home;
(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members,
or others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive
conduct by the child’s family or others who have access to the
child’s home;
(8) whether there is a history of substance abuse by the
child’s family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is
identified;
(10) the willingness and ability of the child’s family to seek
out, accept, and complete counseling services and to cooperate
with and facilitate an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect
positive environmental and personal changes within a reasonable
period of time;
(12) whether the child’s family demonstrates adequate
parenting skills, including providing the child and other children
under the family’s care with:
15
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline
consistent with the child’s physical and psychological
development;
(C) guidance and supervision consistent with the child’s
safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and
(F) an understanding of the child’s needs and
capabilities; and
(13) whether an adequate social support system consisting
of an extended family and friends is available to the child.
Id. § 263.307(b); R.R., 209 S.W.3d at 116.
Other, nonexclusive factors that the trier of fact in a termination case
may use in determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and
in the future;
(C) the emotional and physical danger to the child now and
in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to
promote the best interest of the child;
16
(F) the plans for the child by these individuals or by the
agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate
that the existing parent-child relationship is not a
proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
Although termination may not be based solely on the best interest of the
child as determined by the trier of fact, Boyd, 727 S.W.2d at 533, the same
evidence may prove both a subsection 161.001(1) endangerment finding and
a finding under subsection 161.001(2) that termination is in the best interest
of the child. C.H., 89 S.W.3d at 28; see Tex. Fam. Code Ann. § 161.001.
17
Analysis
Mother’s parental abilities
CPS caseworker Bowlen testified that Mother and Father’s “physical
house was safe and appropriate.” See Tex. Fam. Code Ann. §
263.307(b)(12)(D) (considering a parent’s ability to provide a “safe physical
home environment”). Father testified that he thought Mother was an able
parent, he never knew Mother to harm their children, and he had no concerns
about her ability to provide for their physical needs. He handled most of the
cooking, he and Mother shared responsibilities for washing and bathing the
children, and Mother was disciplined about washing their clothes, sterilizing
their bottles, and measuring their bottles.
However, evidence indicates that Mother did not demonstrate adequate
parenting skills. See id. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72.
Mother has a past history of not being able to provide her children with a safe
environment, as established by the termination of her parental rights to another
child based on endangerment and abandonment findings. Mother also
voluntarily relinquished her parental rights to her first two children, in one
instance because she did not think that she could meet the child’s daily needs.
Additionally, Mother’s recent history establishes that her parental abilities are
deficient, including her use of hydrocodone more frequently than prescribed and
18
the fact that she told a Department caseworker that she had left both children
in their high chairs while she and Father slept, that she screamed and cursed
at the children, and that she was not able to care for S.A.G. and E.J.G. at their
current ages.
Mother also failed to take steps toward improving her parenting skills by
completing the parenting classes required under her service plan. According to
Father, Mother’s pregnancy with N.S.G. prevented her from attending the
classes. Neither Father nor Mother, however, offered any reason why Mother
was not able to resume and complete parenting classes in the months between
N.S.G.’s birth and the trial date.
Emotional and physical needs of and danger to the children
Mother admitted to having blackouts but stated that her blackouts would
not impact her ability to take care of her three children. However, the trial
court reasonably could have concluded that Mother had blacked out while
acting as the children’s sole care giver and that these occurrences put the
children in danger.
Mother told the court that she had thought about committing suicide in
the weeks before trial. She also admitted that she was depressed in the past
and that she yelled and cussed at S.A.G. and E.J.G. while dealing with her
depression. Mother told the court that she was working on her yelling and
19
cussing and doing better. Father testified that Mother sometimes cussed when
frustrated at the children but he did not think Mother had a “serious” anger
management problem.
Mother also had an ongoing pattern of memory problems that impacted
her parenting in the past. Mother told the court that there were a “lot of times”
when Father reminded her of things she seemed to have forgotten. She
testified, however, that she has never forgotten to feed her children or change
their diapers when wet and that she did not remember experiencing any
problems remembering things regarding her care for S.A.G. and E.J.G. Yet
Mother voluntarily relinquished parental rights to her second-born child, J.J.,
after she “accidently forgot” to give him medication. More recently, Mother
admitted that she became agitated and frustrated during her psychological
evaluation because she was not able to remember the instructions given and
perform the tasks assigned.
Mother denied abusing prescription drugs. However, she told the court
that she had a history of taking hydrocodone as frequently as every four to six
hours for back pain; that, in the months before trial, she had obtained more
than three prescriptions for hydrocodone for her back pain; and that she
finished one prescription for a month’s supply of hydrocodone in fifteen days.
20
Mother also reported that a nurse talked to her about concerns that Mother
abused hydrocodone while pregnant with N.S.G.
Mother contends that there was no evidence introduced at trial that
S.A.G., E.J.G., or N.S.G. were harmed by her or as a result of her mental health
issues. The evidence indicated, however, that Mother’s blackouts, thoughts of
suicide, depression, memory problems, and prescription drug use hindered her
ability to care for the emotional and physical needs of, and posed emotional and
physical danger to, the children now and in the future. See Holley, 544 S.W.2d
371–72; see also In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston
[14th Dist.] 2003, no pet.) (“[T]he trial court could have considered [the
mother’s] mental state [recurrent depression, thoughts of hurting herself,
borderline personality disorder, post-traumatic stress disorder, attention deficit
hyperactivity disorder, and seizures] as endangering [the child’s] well-being.”);
In re C.D., 664 S.W.2d 851, 853 (Tex. App.—Fort Worth 1984, no writ)
(“While mental incompetence or mental illness alone are not grounds for
termination of the parent-child relationship, when a parent’s mental state allows
him to engage in conduct which 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 E.A.W.S., No. 02-06-00031-CV, 2006 WL 3525367,
at *18 (Tex. App.—Fort Worth Dec. 7, 2006, pet. denied) (mem. op.) (holding
21
that mother’s “instances of mental instability and agitation, including
threatening behavior and suicidal ideation” supported termination).
Any excuse for Mother’s acts or omissions and Mother’s willingness and ability
to effect positive environmental and personal changes
Mother did not offer any evidence by way of an excuse for her acts or
omissions, stating on appeal that her mental condition is involuntary. See
Holley, 544 S.W.2d 372. Mother did not offer any excuse for her history of
failing to seek or accept assistance for her mental health condition and
repeatedly discounting the harm her mental condition posed to her
children. See id.
Mother has a history of refusing help for her mental condition.
Approximately one year before trial, Mother declined mental health services and
medication offered by Adult Protective Services (APS). At trial, Mother stated
that she declined APS’s offer because she did not feel that she would benefit
from the services provided, but that she later had come to regret that decision
and that she “probably” had problems seeing after her own needs.
Mother also showed a pattern of minimizing the severity of her own
mental condition. She stated that she did not believe she suffered from
“psychotic spells” despite receiving that diagnosis approximately one month
before trial. And, although Mother contemplated suicide in the weeks before
22
trial, she said that she did not seek professional medical attention afterward
because, in her words, “I’ve been told I’m crazy and I’m not.” Mother denied
that she suffered from depression at the time of trial.
Mother also minimized the harm that her mental health condition had on
the care she was able to provide her children. She denied the possibility of ever
blacking out while the children were in her care. Even though she admitted to
memory problems, Mother testified that she did not remember experiencing any
problems remembering things regarding her care for S.A.G. and E.J.G. and that
she never forgot to feed her children or change their diapers when wet.
Testimony established that Mother had taken some steps to address her
mental health condition. At the time of trial, Mother was taking her depression,
bipolar, and sleep disorder medication as prescribed and had attended therapy
sessions as part of her service plan. But Mother did not accept that she was
depressed at the time of trial, did not seek help after contemplating suicide less
than one month before trial, did not accept that her blackouts were caused by
psychotic episodes as diagnosed, and did not take steps to address the danger
posed to her children in the event she blacked out while caring for them.
Accordingly, evidence supported the conclusion that Mother was unwilling and
unable to effect positive environmental and personal changes regarding her
mental health and parenting. See Tex. Fam. Code Ann. § 263.307(b)(11).
23
Children’s desires
The children were three years, two years, and five months old at the time
of the termination trial and did not specifically express their desires. Testimony
at trial indicated that the older two children had bonded with Mother and that
Mother was working toward building a bond with the youngest, N.S.G., despite
the fact that they never lived together.
Stability of the home
Evidence indicated that Mother was not able to offer the children a stable
home until after receiving adequate mental health care. CPS caseworker
Bowlen testified without objection that Mother had not yet worked through
issues of her own abuse and neglect as a child, that Mother could not take care
of small children without twenty-four-hour help, and that, if Mother’s parental
rights were not terminated, she still probably would need “many years to work
through a lot of her childhood issues” before being able to care for the children.
Plans for the children
Father thought that, if the children were returned to him and Mother, they
would seek help from a nanny so that they could work themselves back into
caring for small children. Mother similarly testified that she would prefer to
have a nanny with her when she cared for the children while Father was at
work. Father stated that they were able to afford paying a nanny $100 to
24
$150 per week; Father earned approximately $470 per week in wages plus
tips.
The Department planned to have the children’s paternal grandparents,
M.L. and C.L., eventually adopt all three children. M.L. had agreed to take early
retirement to care for them. Mother herself recommended that M.L. adopt the
children if Mother could not keep them, stating that M.L. is a “very good person
and she’s been doing it.” Father also preferred that the children be placed with
M.L. if they could not be returned to him, and he was confident that M.L. was
doing a good job with them.
Our holding
On the entire record and considering Mother’s history of blackouts, her
rejection of the diagnosis that they are caused by psychotic episodes, her denial
that she ever blacked out while caring for her children, and her failure to
address the danger to her children in the event she blacks out while they are in
her care; Mother’s depression and thoughts of suicide less than one month
before trial, her failure to seek medical attention for depression and suicidal
thoughts thereafter, her refusal to accept the diagnosis that she was suffering
from depression at the time of trial, and the testimony from CPS caseworker
Bowlen that Mother may not be able to care for her children for some time even
if she diligently works toward addressing her mental health issues; and the
25
children’s need for stability and the stability offered by the Department’s plans
for the children to be adopted by their paternal grandparents, we conclude that
the trial court could have reasonably formed a firm belief or conviction that
termination of Mother’s parental rights was in the children’s best interests.
Giving due deference to the trial court’s determination, we hold that the
evidence is factually sufficient to support the trial court’s judgment that
termination of Mother’s parental rights was in the children’s best interests. See
C.H., 89 S.W.3d at 28. We overrule Mother's second issue.
Conclusion
Having overruled both of Mother’s issues on appeal, we affirm the trial
court’s order terminating Mother’s parental rights to S.A.G., E.J.G., and N.S.G.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, GARDNER, and MEIER, JJ.
DELIVERED: March 18, 2010
26