In The Interest of R. M., a child--Appeal from 315th District Court of Harris County

Affirmed and Memorandum Opinion filed February 6, 2003

Affirmed and Memorandum Opinion filed February 6, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00221-CV

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IN THE INTEREST OF R.M., A CHILD

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On Appeal from the 315th District Court

Harris County, Texas

Trial Court Cause No. 00-07459J

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M E M O R A N D U M O P I N I O N

Appellant T.M. challenges the termination of parental rights to her child, R.M. The Texas Department of Protective and Regulatory Services ( the Department ) brought suit to terminate the parent-child relationship on October 16, 2000. The court terminated appellant s parental rights on February 26, 2002. On appeal, appellant contends the evidence was legally insufficient, or in the alternative, factually insufficient to support the trial court s findings. We affirm.

Background

R.M. was born on October 10, 2000, to appellant, T.M. Two days later, the Department received a referral concerning the child s safety. A subsequent investigation revealed appellant was suffering from major depressive disorder and contemplating suicide. Furthermore, appellant s four other children had been previously taken into custody by Child Protective Services ( CPS ), and appellant did not have appropriate living arrangements at the time for her and R.M. The Department was unsuccessful in its attempt to find a relative or friend for temporary placement of R.M. The Department filed suit to terminate the parent-child relationship on October 16, 2000, and R.M. was placed into protective custody.[1]

  The Department instructed appellant to seek psychological and psychiatric examinations and to follow the recommendations made after the examinations. Additionally, appellant was required to enroll in parenting classes, participate in individual counseling, and receive a drug assessment. Appellant completed the psychological and psychiatric evaluations, parenting classes, and the drug assessment. However, she failed to maintain a steady home, remain employed for six months, follow recommendations to undergo a medical examination, and participate regularly in individual and group therapy. The Department caseworker testified appellant was referred to individual therapy in May 2001, but did not attend her first therapy session until September 2001. She further testified that once appellant began therapy, her attendance was sporadic. The caseworker testified that appellant offered various excuses regarding her failure to attend therapy including she had a lot going on, she was sick, and it was too much of a hassle for her.

The caseworker also testified that in the seventeen months since R.M. s birth, appellant visited R.M. only six times once in January 2001, once in July 2001, twice in August 2001, once in September 2001, and once in October 2001. Appellant testified she also visited R.M. on December 18, 2001.[2] However, appellant later testified she did not attend the pre-placement visits because she could not get there on time. The caseworker testified that nothing prevented appellant from visiting R.M. According to the caseworker, appellant s occasional visits with R.M. went well. However, the caseworker testified that on one occasion appellant visited with R.M. for only five to ten minutes. Appellant told the caseworker that she was bored, and she sat in the caseworker s office for the remainder of the visit.

Furthermore, as late as December 2001, appellant continued to contemplate suicide. Although appellant initially denied suicidal thoughts, she later testified that when her therapist asked if she felt like killing herself, her response was, yes.

Finally, the caseworker testified R.M. had been placed with her paternal cousin and that the cousin wanted to adopt her. The caseworker opined that termination of appellant s parental rights and adoption of R.M. by the cousin would be in the child s best interest. The trial court found: (1) appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child; (2) appellant constructively abandoned the child; and (3) terminating the parent-child relationship between appellant and R.M. was in the best interest of the child.[3]

Standard of Review

  Before a parent s parental rights are terminated, the Department must first prove the parent committed one or more of the acts or omissions specifically named in the Family Code as grounds for termination. Tex. Fam. Code Ann. 161.001 (1) (Vernon 2002). The Department alleged: (1) appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child, and (2) she constructively abandoned the child. See Tex. Fam. Code Ann. 161.001 (1)(E),(N). Once a prohibited act is proved, the Department must then show termination of parental rights is in the best interest of the child. Tex. Fam. Code Ann. 161.001 (2) (Vernon 2002). Both elements must be proved by clear and convincing evidence. Tex. Fam. Code Ann. 161.001; see also Santosky v. Kramer, 445 U.S. 745, 768 70 (1982) (applying clear and convincing evidence standard in termination case). The trial court found clear and convincing evidence to support all three of these elements. Appellant challenges the legal and factual sufficiency of the evidence supporting each of these findings.

When reviewing the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the finding to determine whether the factfinder could have formed a firm belief or conviction that its finding was true. In re J.F.C., 46 Tex. Sup. Ct. J. 328, 2002 WL 31890913, at *6 (Dec. 31, 2002). To appropriately defer to the factfinder s conclusions, we must assume that it resolved disputed facts in favor of its finding. Id. We disregard all evidence that a reasonable trier of fact could have disbelieved or found to have been incredible. Id.

When reviewing factual sufficiency of the evidence in a termination proceeding, we apply the standard recently pronounced by the Texas Supreme Court. See In re C.H., 89 S.W.2d 17, 25 26 (Tex.2002). We review the evidence to determine whether a factfinder could reasonably form a firm belief or conviction about the truth of the allegations. Id. 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, then the evidence is factually insufficient. In re J.F.C., 2002 WL 31890913, at *6.

 

Discussion

I. Endangering the physical and emotional well-being of the child

Appellant first challenges the sufficiency of the evidence that appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child. See Tex. Fam. Code Ann. 161.001 (1)(E). Appellant claims she did not endanger R.M. during the few days she had possession of her after her birth. The term endanger as used in the Family Code does not require physical injury. In re M.C., 917 S.W.2d 268, 269 (Tex.1996). Endangerment may occur through acts or omissions of the parent; there is no requirement that the conduct in question be directed toward the child in order to endanger the child s emotional well-being. Id. However, there must be more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment. Id. (quoting Dep t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).

The Department contends appellant endangered R.M. because of her major depressive disorder, her suicidal ideations, and her failure to receive the proper therapy. Although several courts have considered a parent s suicide attempts as endangerment to a child s physical or emotional well-being, there typically have been other factors involved. See In re A.M.C., 2 S.W.3d 707, 716 17 (Tex. App. Waco 1999, no pet.) (noting appellant s mother s attempted suicide; the court also considered the appellant s failure to provide medical care, failure to supervise her child by a busy intersection, and admittance of an abusive relative into her home); In re B.R., 950 S.W.2d 113, 121 (Tex. App. El Paso 1997, no writ) (noting parent had killed child s mother, abused alcohol, cocaine, and marijuana, in addition to attempting suicide).

We employ such an analysis here. Although appellant s suicidal ideations alone may not have amounted to endangerment, the factors stated by the Department and other facts in the record provide sufficient evidence of endangerment. See Carter v. Dallas County Child Welfare Unit, 532 S.W.2d 140, 142 (Tex. Civ. App. Dallas 1975, no writ) ( A parent s mental state may allow or compel him to engage in conduct which endangers the physical or emotional well-being of his child, and in such event, that conduct is evidence bearing upon the advisability of terminating the parent-child relationship. )

Substantial evidence, including testimony, doctor s reports, and evaluations, indicated appellant suffered from a major depressive disorder. Appellant points to several instances where she attempted to seek treatment for her mental disorder. There was little dispute about appellant s completion of parenting classes and her psychological and psychiatric evaluations. However, a critical factor weighing against appellant is her failure to maintain a consistent therapy schedule. Because she did not seek care consistently, her mental condition continued to affect her, such as suicidal ideation a year after R.M. s birth.

Additionally, there was evidence appellant failed to establish a stable residence or maintain employment. At the time of trial, appellant claimed to be living with a woman she had met approximately one month prior to the trial. Before trial, the Department was unable to confirm any permanent residence. On one occasion in October 2001, appellant informed the caseworker she had an apartment. However, when the caseworker scheduled a meeting at the apartment, appellant never arrived. Appellant testified that she was only trying to live there and that it didn t work out. Regarding appellant s employment, the caseworker testified that the only record she had was of appellant s employment as a security guard from June 4, 2001 to August 10, 2001. Appellant testified she was employed at a security company during October 2001. However, the only proof of employment introduced into evidence was a computer input form.

Appellant contends she did not engage in any conduct that endangered R.M. because the child was taken into custody only three days after birth. She points out there were no signs of abuse or neglect and the child was born healthy. Appellant argues the child was taken away because of a risk of danger, not conduct. Although this argument may be a cause for concern, it is not novel. See In re B.B., 971 S.W.2d 160 (Tex. App. Beaumont 1998, pet. denied), disapproved on other grounds by In re C.H., 89 S.W.3d at 26. In B.B., one of appellant s two children was removed from her custody one week after the child s birth, despite the lack of physical abuse or neglect. Id. at 164. The child was removed because of the risk associated with the physical abuse of the appellant s other child. Id. The court explained, if the evidence shows a course of conduct which has the effect of endangering the physical or emotional well-being of the child, a finding of endangerment is supportable. Id. (quoting Boyd, 727 S.W.2d at 534). The court focused on two key factors demonstrating endangerment: (1) the appellant s drinking problem and tendency to become violent while intoxicated; and (2) the appellant s failure to seek the help recommended by CPS for her drinking problem. Id. Likewise, in this case, appellant: (1) suffered from a major depressive disorder which led to suicidal tendencies; and (2) failed to seek the help recommended by mental health professionals and the Department for her depression.

We do not believe the Department need await the occurrence of a tragic event before taking action in a termination case. Appellant s course of conduct sufficiently proved more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment. Boyd, 727 S.W.2d at 534; In re M.C., 917 S.W.2d at 269. We conclude there was more than a scintilla of evidence to support the trial court s finding that appellant engaged in conduct endangering the physical or emotional well-being of R.M. Furthermore, we conclude that a factfinder could reasonably form a firm belief or conviction that appellant s conduct endangered the physical or emotional well-being of R.M.

II. Constructive Abandonment

In her second issue, appellant contends the evidence is legally and factually insufficient to support the trial court s finding that appellant constructively abandoned R.M. Under the Family Code, to show constructive abandonment, the Department must prove by clear and convincing evidence that the child had:

been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services or an authorized agency for not less than six months, and: (i) the department or authorized agency has made reasonable efforts to return the child to the parent; (ii) the parent has not regularly visited or maintained significant contact with the child; and (iii) the parent has demonstrated an inability to provide the child with a safe environment.

Tex. Fam. Code 161.001 (1)(N).

R.M. was taken into protective custody by the Department shortly after her birth on October 13, 2000. She was placed in a foster home on October 16, 2000, and remained there until December 21, 2001, when she was subsequently placed with a family member. Appellant acknowledges the child was under the managing conservatorship of the Department, and there is no dispute that the Department made reasonable efforts to return the child to appellant.

Appellant argues her limited number of visits and attempts to visit her daughter negate any constructive abandonment. Appellant testified she made at least ten or more visits. However, the caseworker testified appellant visited her child only six times between R.M. s placement and the time of trial. Notwithstanding the dispute over the exact number of visits, we find the evidence is both legally and factually sufficient to show appellant had not regularly visited or maintained significant contact with R.M. See In re H.R., 87 S.W.3d 691, 699 (Tex. App. San Antonio 2002, no pet.) (finding sufficient evidence of constructive abandonment where parent s visits were intermittent); In re P.R., 994 S.W.2d 411, 416 (Tex. App. Fort Worth 1999, pet. dism d w.o.j.) (finding sufficient evidence of constructive abandonment where parent had numerous, yet sporadic visits).

Furthermore, there is legally and factually sufficient evidence demonstrating appellant s inability to provide a safe environment for the child. As indicated above, appellant failed to establish a permanent residence or maintain steady employment. Appellant also failed to attend the necessary therapy sessions recommended to her.

We find there is legally and factually sufficient evidence supporting the trial court s conclusion that appellant constructively abandoned R.M.

III. Best Interest of the Child

We now turn our focus to the second prong of our inquiry the best interest of the child. In her third issue, appellant argues the evidence was legally and factually insufficient to support the trial court s finding that terminating her parental rights was in R.M. s best interest.

The factors that may be considered when determining the best interest of the child include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371 72 (Tex.1976). This list is non-exclusive; a factfinder is not required to consider all of these listed factors. Id. at 372. Considering R.M. s emotional and physical needs and the danger to her now and in the future, appellant s parental abilities, the Department s plans for R.M., and the stability of the proposed placement options, we find the evidence is legally and factually sufficient to support the trial court s finding that termination of the parent-child relationship was in the best interest of the child.

A. The Emotional and Physical Needs of the Child and Danger to Her Now and In the Future

In October 2001, R.M. was evaluated by a psychologist, who noted that R.M. needed to receive warm, consistent, and attentive care. The caseworker testified R.M. was very social and interacted well with others. At the time of trial, R.M. was in generally good health and developing normally. However, regular examination by a pediatrician was recommended so that her respiratory problems and social and physical development could be monitored.

We recognize R.M. s physical and emotional needs appear to be relatively normal in comparison to other children her age. However, these basic needs viewed in context of the potential danger created by appellant then, now, and in the future, weigh in favor of termination. Appellant never provided R.M. consistent, warm, attentive care. Appellant maintained only incidental contact with her daughter. During appellant s few visits with R.M., R.M. did not recognize her. Further, the caseworker testified that a mother-daughter bond did not exist between appellant and R.M.[4] Additionally, appellant never received a physical examination as recommended by her psychologist and by the Department, despite concerns she had syphilis and had been affected by multiple head injuries. Appellant s failure to obtain appropriate medical care is some evidence of her inability to meet R.M. s physical and emotional needs. We find the trial court could have considered this evidence in finding termination was in the child s best interest.

B. The Parental Abilities of Appellant

In addition to R.M., appellant had four other children. All four had been removed from appellant s care and placed with other family members because of appellant s negligent supervision. Appellant testified she did not visit nor provide for those children. Although this history weighs heavily against appellant, we have considered testimony that appellant completed the recommended parenting classes. Appellant testified the parenting classes helped build her self-esteem and realize that she had the capacity to be a good mother. Despite the parenting classes, appellant still failed to visit R.M. consistently. As with her other children, appellant provided R.M. little, if any, support.

Lastly, we note appellant s lack of familial assistance. The caseworker testified appellant had little contact with relatives and no family support. Although a paternal cousin was caring for R.M. at the time of trial, appellant testified she and the cousin did not get along.

The trial court could have considered this evidence of appellant s parental abilities in determining whether termination was in the best interest of the child.

C. Plans for the Child by the Department and the Stability of the Proposed Placement Options

The caseworker testified that R.M. s paternal cousin wanted to adopt her. She further testified that R.M. adjusted well to living in the cousin s home, where a structured and nurturing environment was provided. Additionally, unlike with appellant, the caseworker witnessed a definite bond between the cousin and R.M. The caseworker explained the cousin wanted to provide R.M. with permanency. When determining the best interest of the child, the need for permanence is the paramount consideration for the child s present and future

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physical and emotional needs. Dupree v. Tex. Dep t of Protective and Regulatory Servs., 907 S.W.2d 81, 87 (Tex. App. Dallas 1995, no writ). The goal of establishing a stable, permanent home for a child is a compelling interest of the government. Id.

In contrast, appellant claimed to live with a woman she had met approximately one month prior to the trial. The Department was previously unable to confirm a permanent residence. Appellant admitted she lost jobs because she did not arrive on time. The only employment the Department confirmed lasted only two months. When asked about her future plans, appellant stated she was considering working on a ship and going overseas. Based on these factors, the trial court had sufficient evidence to find that appellant was unable to provide necessary permanency and stability for R.M.

Conclusion

We hold the evidence is both legally and factually sufficient to support the trial court s finding: (1) appellant engaged in conduct that endangered the physical or emotional well-being of R.M.; (2) appellant constructively abandoned R.M.; and (3) terminating appellant s parental rights was in the best interest of the child.

Accordingly, we overrule appellant s three issues and affirm the trial court s judgment.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed February 6, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

[1] In this Original Petition, the Department moved to terminate the parental rights of appellant and the presumed/alleged father, R.C. R.C. initially appeared with counsel during the early phase of the case, but was absent throughout the trial.

[2] Appellant notes in her brief that the CPS Monthly Summary/Assessment, admitted into evidence as part of the case file, states appellant visited with R.M. on 12-18-00, accounting for one additional visit. Appellant argues this contradicts the caseworker s testimony that no visits took place during October, November, or December 2000.

[3] The trial court also terminated the presumed/alleged father s parental rights.

[4] Appellant notes that the caseworker was not declared an expert. She apparently contends the Department failed to meet its burden because no mental health professionals, therapists, or other experts testified about the best interests of the child. Appellant, however, does not provide any authority that the testimony of a mental health professional, therapist, or other expert is required to prove that termination of parental rights is in the best interest of a child. The trial court, as the trier of fact, was entitled to determine the credibility and weight to give to the caseworker s testimony. See Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App. Houston [1st Dist.] 1997, pet. denied).