in the Interest of V.L.M, a Child ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00100-CV
IN THE INTEREST OF V.L.M., a Child
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2016PA02374
Honorable Barbara Hanson Nellermoe, Judge Presiding 1
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: July 25, 2018
AFFIRMED
This is an appeal from a trial court’s order terminating appellant mother’s (Mother) parental
rights to her child, V.L.M. On appeal, Mother argues the evidence is legally and factually
insufficient to support the trial court’s predicate findings under section 161.003(a) of the Texas
Family Code (“the Code”) under which her parental rights were terminated. We affirm the trial
court’s order of termination.
BACKGROUND
The record reflects V.L.M., who was born in January 2016, was diagnosed at birth with
dysmorphic facies and a chromosomal anomaly. The diagnosis suggested V.L.M.’s mother, was
1
The Honorable Rosie Alvarado is the presiding judge of the 438th Civil District Court, Bexar County, Texas. The
Honorable Barbara Hanson Nellermoe, retired, was sitting by assignment and signed the order that is the subject of
this appeal.
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a victim of incest. The hospital performed genetic testing, which confirmed V.L.M.’s father was
a first degree relative to Mother. The results were shared with the Texas Department of Family
and Protective Services (“the Department”), which had also received a referral, alleging Mother
had an intellectual disability and was negligently supervising V.L.M. Thereafter, the Department
attempted to visit Mother and V.L.M., but was unable to locate them. After approximately six to
seven months of searching, Department caseworker Anna Smith found the family, who was living
in a motel room.
According to Smith, Mother and V.L.M. were living in the motel room with Mother’s
parents and three siblings. The motel room was a single room with two beds and no proper
sleeping arrangement for V.L.M. In the room, Smith found a bag containing a large assortment of
prescription pills, which were not prescribed to anyone in the room. Smith also found a bottle of
medicine that was being administered to V.L.M. Smith testified the label was not legible. In
addition to finding medication, Smith stated Mother’s father was extremely hostile and
confrontational during her interaction with him. Smith claimed that during her visit, Mother’s
father threatened her, and as a result, she called 9-1-1.
Due to the concern that V.L.M. was not being properly cared for and potentially sleeping
in the same room as an alleged sexual abuser, the Department removed V.L.M. from Mother’s
care. V.L.M. was then placed with a foster family, and a service plan was prepared for Mother,
which included psychological counseling and parenting classes. According to Smith, the
Department focused on designing a plan that would help Mother gain a working understanding of
V.L.M.’s medical needs and teach Mother how to parent. During the course of the service plan,
Mother became pregnant with her current boyfriend S.C. and prenatal care was added to the plan.
Due to the lack of progress, the Department ultimately sought to terminate Mother’s
parental rights to V.L.M. At the bench trial, the trial court heard testimony from several witnesses,
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including Dr. Jennifer Beth Mazer, V.L.M.’s pediatrician; Brieanna Flowers, a pediatric nurse
practitioner who worked with V.L.M.; Dr. Ann Marie Hernandez, a clinical psychologist who
examined Mother; Brenda Martinez, Mother’s counselor; Department caseworkers, Anna Smith
and Lesley Oxendine; Mother; and S.C., Mother’s current boyfriend.
Dr. Mazer began seeing V.L.M. when she was eleven months old and under her foster
parents’ care. During the bench trial, Dr. Mazer testified V.L.M has a number of conditions that
require special care, including “developmental delay of speech, she has fine motor and gross motor
delays; she has scoliosis; she has what we call labial adhesions; she has dysphagia [which is a
problem with swallowing]; as well as obstructive sleep apnea; she has microencephaly, meaning
a small head; she’s had nasal lacrimal duct obstruction, which basically means the tear duct is
obstructed; and then, of course, chromosomal abnormalities.” As a result, V.L.M. sees several
specialists, including a speech therapist, a physical therapist, and an occupational therapist.
According to Dr. Mazer, she has seen V.L.M. approximately eighteen times; Mother attended
some of these appointments with V.L.M.’s foster mother. Dr. Mazer testified that although Mother
expressed interest in V.L.M., she believed Mother did not have a full understanding of V.L.M.’s
needs. Specifically, Mother could not answer pointed questions about V.L.M.’s needs or
development. For example, Mother did not know any of V.L.M.’s medical history or current
conditions, and she also did not know when V.L.M.’s surgery for correction of the blocked tear
ducts was scheduled. Dr. Mazer further testified it was important for a parent to understand
V.L.M.’s needs and be able to relay information about her progress at each appointment because
doctors rely on a parent to carry out the recommended medical plan and track progress. Dr. Mazer
continued, stating doctors base future plans on the information being relayed to them. In addition
to these concerns, Dr. Mazer also expressed concern about Mother’s own developmental delays,
emphasizing it was important for V.L.M. to have a model upon which to base her behavior. Dr.
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Mazer testified that if a parent was developmentally delayed herself, that could hinder a child’s
progress. Dr. Mazer added that in order for V.L.M. to grow and thrive properly, she needed
special, attentive care that involved seeing each of her specialists routinely and taking a number of
prescribed medications regularly.
The trial court also heard testimony from Brieanna Flowers, a pediatric nurse practitioner,
who works with V.L.M. In addition to describing V.L.M.’s special needs, Flowers explained it
was important for a parent to understand V.L.M.’s needs. Flowers testified “the role of the parent”
during each appointment is to relay information about how V.L.M. was doing and any specific
concerns the parent had. With regard to Mother, Flowers testified she met Mother during one of
V.L.M.’s appointments and Mother was unable to give any answers to her questions. Specifically,
Flowers testified she talked to Mother about the genetic testing results and asked her questions
about V.L.M.’s conditions and medical history, but Mother was unable to answer any of the
questions.
With regard to evidence regarding Mother’s abilities, the trial court heard testimony from
Dr. Ann Marie Hernandez, who conducted the initial evaluation on Mother when she was referred
for a psychological exam by the Department. The evaluation showed Mother has an IQ of 58.
According to Dr. Hernandez, Mother exhibited “a limited understanding” as to why V.L.M. was
removed from her care. Dr. Hernandez also indicated Mother was unable to complete the
evaluation without assistance, which concerned the doctor with respect to Mother’s ability to
parent and make independent decisions. Dr. Hernandez further testified Mother exhibited higher
than average stress when presented with certain parenting scenarios. Specifically, Mother’s
particular stressors were an “inability to kind of manage and control the child” as well as make
“some of the sacrifices that parents have to make on a day-to-day basis.” Dr. Hernandez continued,
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testifying she believed Mother would have issues understanding medical directions, problem-
solving, and dealing with unpredictable situations.
Brenda Martinez, Mother’s counselor, also testified as to Mother’s abilities to parent
V.L.M. Specifically, Martinez testified she began seeing Mother a few months after V.L.M. was
removed from her care. Martinez stated Mother is “fairly consistent” with her appointments, but
there were weeks when she failed to appear without explanation. Martinez testified that based on
a psychological exam she conducted, Mother has an intellectual delay and speech impediment.
Martinez explained Mother appeared to understand why the Department became involved with
V.L.M. and was making some progress with her “adulting” skills. Martinez added, however, that
Mother was unable to discuss V.L.M.’s medical issues, which indicated to her that Mother was not
participating in the doctor appointments and failing to ask necessary follow-up questions.
Specifically, Martinez testified, “it goes back to the decision-making skills and knowing when to
ask questions or knowing when to kind of pull back. It goes back to decision-making for me, that
she’s lacking some adaptive decision-making skills.” When asked about whether Mother could
care for two children, Martinez testified she did not believe Mother made enough progress to care
for two children, particularly V.L.M., who has special needs. Martinez stated that with respect to
a healthy child, she believed Mother was capable of making certain decisions, but “[f]or a child
that she doesn’t understand the medical conditions, I would be concerned.” Martinez added she
believed Mother would need some supervision to care for V.L.M.
With regard to whether she believed Mother could care for V.L.M. in the near future,
Martinez testified she did not think Mother could make enough progress in the next 90 days to
care for V.L.M. properly. Martinez described Mother’s cognitive abilities as “slow, but positive.”
Martinez further explained she believed Mother had “cognitive distortions like denial and
minimization,” which makes it challenging for a person to make the changes necessary for the
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future, specifically the future return of V.L.M. to her care. Martinez also added that she learned
Mother was a victim of past abuse, and she believed that as a result of the abuse she endured,
Mother’s ability to parent now and in the future was negatively impacted.
Martinez also provided testimony as to Mother’s judgment skills, specifically Mother’s
ability to identify who she should associate with. According to Martinez, she believed Mother
lacked good judgment with regard to identifying those she could trust. Martinez further testified
that at no point during her counseling sessions was Mother able to address the sexual abuse
allegations. Martinez testified that based on Mother’s disability and the fact that the genetic testing
showed V.L.M.’s parents were related by the first degree, it was highly likely Mother was
subjected to some sort of sexual abuse, but was unable to cope with it. With respect to Mother’s
current relationship, Martinez expressed concern that Mother was exhibiting “deviant behavior,”
particularly because her current boyfriend — who was the father of her second child — was
significantly older than her, and as a result, could manipulate her decision-making skills.
In addition to this testimony, the trial court heard testimony from Department caseworkers,
Anna Smith and Lesley Oxendine, who were each involved with the family and provided testimony
as to their interactions with Mother. Smith testified she was the initial caseworker assigned to the
case who contacted the family after the Department found them living in a motel room. Smith
described her initial meeting with the family as tense and stated Mother’s father did not allow
Mother to speak. According to Smith, she believed Mother’s father controlled the family,
including Mother, and that Mother was “a victim of her father.”
After V.L.M. was removed from Mother’s care, Oxendine began working with Mother and
designed Mother’s service plan. According to Oxendine, Mother did not complete either her
counseling services or parenting classes, but added that the parenting classes were ongoing until
the next year and Mother was attending them. Oxendine testified, however, that she believed
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Mother did not understand V.L.M.’s medical needs, and during her visits with V.L.M., Mother
struggled to care for V.L.M. properly. For example, if Mother would attempt to change V.L.M.’s
diaper, feed V.L.M., or put on V.L.M.’s shoes, and V.L.M. would not cooperate, then Mother
would give up. As a result, V.L.M. would remain in an unchanged diaper, unfed, or barefoot. The
evidence showed V.L.M. wore special shoes and braces, and thus, it was important for her to wear
her shoes properly. Oxendine also testified Mother had a delayed response when responding to
V.L.M. With respect to whether V.L.M. was bonded with Mother, Oxendine testified Mother and
V.L.M. did not hug, kiss, or cuddle during their interactions. Neither reacted to each other and
there did not appear to be any bond between them.
The trial court also heard testimony from Mother, who described V.L.M. as a healthy baby
at birth. According to Mother, V.L.M. exhibited no problems feeding, sleeping, or moving at birth,
and she believed the Department became involved with her family because she missed some doctor
appointments. When asked about the genetic testing, Mother testified she did not understand why
the “DNA came out the same.” She testified at no point did she ever sleep with a family member,
and her previous boyfriend, S.S., was V.L.M.’s father. Mother stated she met S.S. at a local
grocery store and he was her father’s friend. When asked to describe V.L.M.’s diagnoses, Mother
testified V.L.M. has a speech problem, but added that V.L.M. walks and runs. She did not know
how many prescriptions V.L.M. was taking, nor what the prescriptions were for. When asked
specifically about each of V.L.M.’s specialty doctors and surgeries, Mother was able to identify
what type of doctors V.L.M. saw and the reasons for V.L.M.’s surgeries; however, Mother also
testified she did not believe V.L.M. needed any special type of care. Mother stated that if V.L.M.
was returned to her, she would ask the doctor what to do with V.L.M.
When describing her visits with V.L.M., Mother stated she would play with the child and
sometimes feed her things like baby applesauce or cookies. As to whether she could handle two
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children, Mother testified she could put one to sleep and play with the other or have the children
play with each other. Mother stated she believed she could care for V.L.M. better than V.L.M.’s
current foster mother because she would give V.L.M. healthy food and make sure she did not miss
a doctor’s appointment. According to Mother, V.L.M.’s current foster mother fed V.L.M. too
many sweets. With regard to her parenting abilities, Mother testified she was receiving assistance
through the iParent program, a program that was recommend by the Department. Mother testified
she has been doing the iParent classes and she believes she has become a better parent. Mother
indicated she kept a notebook to keep track of her younger baby’s feeding schedule. Mother also
added she no longer interacts with her family, and she has been much happier not communicating
with them and living with her current boyfriend, S.C. Mother further stated that S.C., as well as
S.C.’s sister, could help her take care of V.L.M. and her other child.
S.C., Mother’s current boyfriend and father of her second child, also testified. S.C. testified
he was currently living with Mother and their baby. According to S.C., they both care for their
baby and help each other with the baby. S.C. also testified he was aware V.L.M. had health
problems, but he did not know how serious the problems were. S.C. stated, however, that he
believed Mother was a good person who deserved to have her baby back. He also added he was
Mother’s support system and that he would help her care for V.L.M. if V.L.M. was returned to
her.
After hearing the evidence, the trial court signed an order terminating Mother’s parental
rights to V.L.M. In the order, the trial court found by clear and convincing evidence that
termination of Mother’s parental rights was supported by section 161.003 of the Texas Family
Code. See TEX. FAM. CODE ANN. § 161.003(a)(1)-(5) (West Supp. 2017). Thereafter, Mother
filed this appeal.
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ANALYSIS
In her sole issue on appeal, Mother challenges the legal and factual sufficiency of the
evidence to support the trial court’s predicate findings that her parental rights should be terminated
pursuant to section 161.0003 of the Code. See id. Specifically, Mother argues the evidence was
legally and factually insufficient to support the trial court’s two findings under section 161.003(a)
that: (1) 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 V.L.M.; and (2) the illness or deficiency,
in all reasonable probability, proved by clear and convincing evidence, will continue to render her
unable to provide for V.L.M.’s needs until V.L.M.’s 18th birthday. See id. § 161.003(a)(1),(2).
Standard of Review
A parent’s rights to the care and custody of his or her child are constitutional in nature;
however, these rights are not absolute. In re E.A.G., 373 S.W.3d 129, 140 (Tex. App.—San
Antonio 2012, pet. denied) (citing Santosky v. Kramer, 455 U.S. 745, 758-59 (Tex. 2003)). In an
involuntary parental termination proceeding, the State can seek to permanently divest a parent of
all their legal rights and duties to his or her child. TEX. FAM. CODE ANN. § 161.206(b); E.A.G.,
373 S.W.3d at 140; In re L.G.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.).
Because the involuntary termination of parental rights raises due process concerns as it results in
permanent and unalterable changes for both parent and child, the State bears the burden of proving
the elements necessary for termination by clear and convincing evidence. In re F.E.N., 542 S.W.3d
752, 761 (Tex. App.—Houston [14th Dist.] 2018, no pet.). “Clear and convincing evidence” is
defined as “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.
When reviewing the legal and factual sufficiency of the evidence, we apply the well-
established standards of review. See id. §§ 101.007, 161.206(a); see also In re J.P.B., 180 S.W.3d
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570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual
sufficiency). Under these standards, we must determine whether the evidence is such that the trier
of fact could reasonably form a firm belief or conviction that termination was in the child’s best
interest. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “The trial court is the sole judge of the
weight and credibility of the evidence, including the testimony of the Department’s witnesses.” In
re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017,
no pet.) (mem. op.).
Applicable Law
Termination of the parent-child relationship is permitted under section 161.003(a) of the
Code. See TEX. FAM. CODE ANN. § 161.003(a). To support termination under this section, the
Department must prove by clear and convincing evidence 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.
Id.
As indicated above, Mother challenges the sufficiency of the evidence to support only the
trial court’s first two findings that (1) 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 V.L.M., and
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(2) the illness or deficiency, in all reasonable probability, proved by clear and convincing evidence,
will continue to render her unable to provide for V.L.M.’s needs until V.L.M.’s 18th birthday. See
id. § 161.003(a)(1),(2). With regard to the first finding, a parent’s mental illness or incompetence
is not, in and of itself, grounds for termination of the parent-child relationship. In re B.J.C., 495
S.W.3d 29, 36 (Tex. App.—Houston [14th Dist.] 2016, no pet.); In re E.R.N., No. 04-11-00161-
CV, 2011 WL 5069423, at *2 (Tex. App.—San Antonio Oct. 26, 2011, no pet.). However, when
a parent’s mental state causes him or her to engage in conduct that endangers the physical or
emotional well-being of the child, then the conduct has a bearing on the advisability of terminating
the parent’s rights. In re B.J.C., 495 S.W.3d at 36; In re E.R.N., 2011 WL 5069423, at *2. Thus,
“[t]here must be evidence to support a determination that a parent’s mental illness or deficiency
excludes her from providing for her children now and in the future.” In re B.J.C., 495 S.W.3d at
36. As to the second finding, “‘[i]n all reasonable probability’ does not mean beyond a reasonable
doubt and does not require ‘scientific certainty’ that the parent's mental illness will continue until
the child is [eighteen].” Liu v. Dep’t of Family & Protective Servs., 273 S.W.3d 785, 791 (Tex.
App.—Houston [1st Dist.] 2008, no pet.).
Application
In this case, the evidence shows Mother has an IQ of 58 and a limited understanding of
V.L.M.’s special medical needs. The trial court heard testimony from several witnesses, including
Mother’s counselor, Martinez, who expressed concern regarding Mother’s decision–making
abilities. Two witnesses — Martinez and Dr. Hernandez — testified they evaluated Mother and
believed Mother did not have the mental capacity to care for V.L.M. Each specifically testified as
to their concern regarding Mother’s ability to handle V.L.M.’s special needs, stressing Mother was
unable to describe V.L.M.’s current medical issues and provide a detailed medical history to
V.L.M.’s doctor. By Mother’s own testimony, she was unable to fully describe V.L.M.’s medical
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issues. When asked what she would do if V.L.M. was returned to her, Mother indicated she would
simply ask the doctor. However, the trial court heard testimony from V.L.M.’s pediatrician, Dr.
Mazer, who stated Mother did not participate in the appointments the way a parent should. Dr.
Mazer expressed concern regarding Mother’s abilities to parent V.L.M., highlighting that Mother
was unable to answer pointed questions about V.L.M.’s needs and development. Moreover, the
trial court heard evidence from Oxendine, a Department caseworker, who testified Mother
struggled to change V.L.M.’s diaper and feed V.L.M. There was further evidence Mother was not
bonded to V.L.M. and did not express emotion toward V.L.M. Accordingly, we hold that based
on the evidence, the trial court could have reasonably formed a firm belief or conviction that
Mother had a mental deficiency that rendered her unable to care for V.L.M.’s needs. See TEX.
FAM. CODE ANN. § 161.003(a)(1); In re B.J.C., 495 S.W.3d at 36.
In addition, the trial court also heard evidence regarding Mother’s ability to parent V.L.M.
in the future. The evidence showed that over the course of a year and after ongoing counseling
and parenting classes, Mother was unable to fully understand V.L.M.’s needs or identify V.L.M.’s
father. The evidence shows Mother exhibited cognitive distortions, such as denial and
minimization, making it challenging for her to change her behavior in anticipation of V.L.M.’s
possible return. Mother’s counselor described Mother’s progress as positive, but slow, and
indicated Mother would be unable to make enough progress to care for V.L.M. within the next 90
days. The trial court heard testimony from several witnesses, who stated Mother would need
assistance in caring for V.L.M. And although Mother and S.C. disagreed Mother needed help and
testified Mother was currently caring for her second child by keeping track of feedings in a
notebook, there was evidence that Mother’s developmental delays would continue to impede her
progress as well as V.L.M.’s development. Dr. Mazer specifically testified she was concerned
about Mother’s developmental delays because it was important for V.L.M. to have someone to
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model her behavior after. Accordingly, the trial court could have reasonably determined that in
all reasonable probability, Mother’s mental deficiency would render her unable to provide for the
V.L.M.’s needs from now until V.L.M. reached majority. See TEX. FAM. CODE ANN.
§ 161.003(a)(2); In re B.J.C., 495 S.W.3d at 36.
Based on the foregoing, we conclude the evidence is both legally and factually sufficient
to support the trial court’s findings that Mother’s mental deficiency renders unable to provide for
V.L.M.’s needs, and, in all reasonable probability, the mental deficiency from which Mother
suffers will continue to render her unable to provide for V.L.M.’s needs until her 18th birthday.
CONCLUSION
Based on the evidence before the trial court, we hold the trial court did not abuse its
discretion in finding termination was proper. Accordingly, we affirm the trial court’s order of
termination.
Marialyn Barnard, Justice
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