In the Interest of M.C., Minor Child v. <<

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Court of Appeals of Texas, Fort Worth.

In the Interest of M.C., Minor Child

NO. 02-15-00290-CV

Decided: January 28, 2016

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

MEMORANDUM OPINION 1

I. Introduction

Appellee Department of Family and Protective Services (DFPS) investigated two referrals that it received in March and July 2013 involving then three-year-old M.C., Appellant Mother's daughter.  In February 2014—after M.C. had been placed in a foster home and after Mother had failed to complete a number of Family Based Safety Services and refused to address her mental health issues—DFPS filed a petition for protection of the child, for conservatorship, and for termination of the parent-child relationship between Mother and M.C. Eighteen months later, following a final bench trial, the trial court signed a decree terminating Mother's parental rights to M.C., finding by clear and convincing evidence that she had failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain M.C.'s return and that termination was in M.C.'s best interest.  See Tex. Fam.Code Ann. § 161.001(b)(1)(0), (2) (West Supp.2015).  In two issues, Mother challenges the legal and factual sufficiency of the evidence to support the trial court's subsection 161.001(b)(1)(O) and best interest findings.  We will affirm.

II. Burden of Proof and Standards of Review

Termination decisions must be supported by clear and convincing evidence.  See Tex. Fam.Code Ann. §§ 161.001(b), 161.206(a) (West 2014);  In re E.N.C., 384 S.W.3d 796, 802 (Tex.2012).  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.”  Tex. Fam.Code Ann. § 101.007 (West 2014);  E.N.C., 384 S.W.3d at 802.

In evaluating the evidence for legal sufficiency in parental termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the challenged ground for termination was proven.  In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005).  We review all the evidence in the light most favorable to the finding and judgment. Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so.  Id. We disregard all evidence that a reasonable factfinder could have disbelieved.  Id. We consider undisputed evidence even if it is contrary to the finding.  Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not.  See id.

In reviewing the evidence for factual sufficiency, we give due deference to the factfinder's findings and do not supplant the verdict with our own.  In re H.R.M., 209 S.W.3d 105, 108 (Tex.2006).  We determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that Mother violated subsection (O) of section 161.001(b)(1) and that termination of the parent-child relationship would be in M.C.'s best interest.  See Tex. Fam.Code Ann. § 161.001(b);  In re C.H., 89 S.W.3d 17, 28 (Tex.2002).

III. Family Code Subsection 161.001(b)(1)(0) Finding

Subsection 161.001(b)(1)(O) permits a court to order termination of the parent-child relationship if the parent has

failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.

Tex. Fam.Code Ann. § 161.001(b)(1)(O).

A. Court Order

Mother argues in part of her first issue that the evidence is legally and factually insufficient to support the trial court's subsection 161.001(b)(1)(O) finding because DFPS never offered into evidence a court order establishing the actions necessary for Mother to obtain the return of M.C. Mother acknowledges that the trial court took judicial notice of the contents of its file, which includes Mother's service plan and a court order making the service plan an order of the court, but she contends that “taking judicial notice of the trial court's file does not magically transform the temporary orders into evidence.”

Appellate courts have routinely overruled evidentiary sufficiency challenges to an affirmative subsection 161.001(b)(1)(0) finding when, although the order described by the statute was not admitted into evidence, the trial court took judicial notice of the contents of its file without objection, and the file contained a court order as described by the statute.  See, e.g., In re K.F., 402 S.W.3d 497, 504–05 (Tex.App.—Houston [14th Dist.] 2013, pet. denied) (“Because we may presume the trial court took judicial notice of its own records, the evidence is legally and factually sufficient to support a finding that the Department proved there is an order that specifically established the actions necessary for Harrison to obtain the return of her children.”);  In re J.E.H., 384 S.W.3d 864, 870 (Tex.App.—San Antonio 2012, no pet.)  (”[T]he trial court could properly take judicial notice that it signed an order adopting the family service plan and what the plan listed as the necessary requirements Clifton B. was required to complete before J.E.H. would be returned to him.”);  In re R.W., No. 01–11–00023–CV, 2011 WL 2436541, at *7 (Tex.App.—Houston [1st Dist.] June 16, 2011, no pet.) (mem.op.)  (“The trial court announced that it was taking judicial notice of the orders [requiring mother to comply with the family service plan].  The mother did not challenge its decision.  Accordingly, the trial record contains the order that established the actions necessary for the mother to obtain the return of her children as 161.001(1)(O) requires.”);  In re No. 13–08–00643–CV, 2010 WL 40124, at *12 (Tex.App.—Corpus Christi Jan. 7, 2010, no pet.) (mem.op.) (holding similarly).  Judicial notice is adequate because, although a court may not take judicial notice of the truth of the allegations in its records, it may take judicial notice of the existence of its own orders, and subsection 161.001(b)(1)(O)'s plain language requires a showing that a court order establishing the actions necessary for the parent to obtain the child's return existed.  See Tex. Fam.Code Ann. § 161.001(b)(1)(0);  K.F., 402 S.W.3d at 505;  J.E.H., 384 S.W.3d at 869–70;  H.M.P., 2010 WL 40124, at *12.

Here, DFPS did not offer Mother's service plan or the trial court's order into evidence, but it did ask the trial court to take judicial notice of the contents of its file, which the trial court did without any objection by Mother.  Like our sister courts have concluded under similar circumstances, we conclude that the order described by subsection 161.001(b)(1)(O) is therefore part of the record that we may consider on appeal for purposes of Mother's sufficiency argument, and the evidence is not legally or factually insufficient to support the trial court's subsection 161.001(b)(1)(O) finding for failure to meet the statute's court order element.2  See K.F., 402 S.W.3d at 504–05;  R.W., 2011 WL 2436541, at *7; 2010 WL 40124, at *12.  We overrule this part of Mother's first issue.

B. Abuse or Neglect

Mother argues in the next part of her first issue that the evidence is legally and factually insufficient to support the trial court's subsection 161.001(b)(1)(O) finding because DFPS failed to prove that M.C. was removed from Mother for abuse or neglect.  The supreme court has clarified that we interpret the words “abuse” and “neglect” broadly to necessarily include the risks or threats of the environment.  See In re E.C.R., 402 S.W.3d 239, 248 (Tex.2013).  “If a parent has ․ endangered her child's physical health or safety, such that initial and continued removal are appropriate, the child has been ‘remov[ed] from the parent under Chapter 262 for the abuse or neglect of the child.’ ”  Id.

The evidence supporting DFPS's removal of M.C. for abuse or neglect includes Mother's refusal to acknowledge and treat her mental illness and her erratic, sometimes dangerous behavior.  Linda Johnson, the first caseworker assigned to M.C.'s case, testified that M.C. was removed from Mother's care because of concerns about Mother's mental health.  Likewise, Desiree Bernal, the second caseworker assigned to M.C.'s case, opined that “the issue is, among other things, [Mother's] mental health.”  Several sources diagnosed Mother with Schizoaffective Disorder or Paranoid Features, but the consensus at trial was that Mother had not done anything to address her mental health issues—including by taking medication—primarily because she denied suffering from any mental illness whatsoever.3

It is well established that untreated mental illness can expose a child to endangerment.  In re S.R., 452 S.W.3d 351, 363 (Tex.App.—Houston [14th Dist.] 2014, pet. denied);  In re T.G.R.–M., 404 S.W.3d 7, 14 (Tex.App.—Houston [1st Dist.] 2013, no pet.).  In 2012, Mother stabbed her mother's husband because, according to Mother, her “family had been plotting to kill her.” 4  In 2011, then one-year-old M.C. was found wandering the street unsupervised;  Mother told Johnson that M.C. had an implant in her head that caused her to behave poorly.5  Johnson testified that Mother claimed to be “automated,” meaning that she “had something implanted in her brain that was causing her problems” and that it was “exercising some sort of control.” 6  On another occasion, Mother went to the home of M.C.'s foster parents and yelled from the front yard that the foster mother was a whore;  M.C. was inside the house.7  All of this is evidence of endangerment.  Cf. In re J.P., No. 02–07–00026–CV, 2008 WL 283295, at *12 (Tex.App.—Fort Worth Feb. 4, 2008, no pet.) (mem.op.) (holding that evidence of mother's mental instability did not rise to the level of endangerment when, among other things, mother admitted that she suffered from a mental illness and always sought help with her condition when she experienced problems associated therewith).  We hold that the evidence is legally and factually sufficient to support the abuse or neglect element of the trial court's subsection 161.001(b)(1)(O) finding.  See E.C.R., 402 S.W.3d at 248.  We overrule this portion of Mother's first issue.

C. Compliance

Mother argues in the final part of her first issue that the evidence is legally and factually insufficient to support the trial court's subsection 161.001(b)(1)(O) finding because she complied with parts of her service plan.8  See Tex. Fam.Code Ann. § 161.001(b)(1)(O).  Johnson, Bernal, and Katherine Smith, the CASA and M.C.'s guardian ad litem, each testified that Mother had failed to comply with her service plan.  Specifically, the evidence demonstrated that (1) Mother did not comply with Johnson's request to complete a new assessment at Helen Farabee;  (2) Mother missed numerous counseling sessions at Madden Counseling Services and was never successfully discharged therefrom;  (3) Mother never gave Johnson a budget or proof of a legal income;  (4) Mother did not give DFPS access to her home when she moved to 10th Street in November 2014;  (5) Mother did not give DFPS information about her roommates;  and (6) Mother did not submit to a drug test when she was asked to do so on one occasion.  Giving due deference to the trial court's finding, a reasonable trier of fact could have formed a firm belief or conviction that Mother failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain M.C.'s return.  Therefore, the evidence is legally and factually sufficient to support the trial court's subsection 161.001(1)(b)(O) finding.  We overrule the remainder of Mother's first issue.

IV. Best Interest Finding

Mother argues in her second issue that the evidence is legally and factually insufficient to support the trial court's best interest finding.  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).  We review the entire record to determine the child's best interest.  E.C.R., 402 S.W.3d at 250.  The same evidence may be probative of both the subsection (1) ground and best interest.  Id. at 249;  C.H., 89 S.W.3d at 28.  Nonexclusive factors that the trier of fact in a termination case may also 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;

(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) (citations omitted);  see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best interest finding, “we consider, among other evidence, the Holley factors”);  E.N.C., 384 S.W.3d at 807.  These factors are not exhaustive, and some listed factors may be inapplicable to some cases.  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. That is, “[a] lack of evidence does not constitute clear and convincing evidence.”  E.N.C., 384 S.W.3d at 808.

The record certainly contains evidence that is contrary to the trial court's finding—Mother loves M.C. and spending time with her, she worked parts of her service plan, she does not have a drug or alcohol problem, she is employed, she has a place to live, and she opined that it would not be in M.C.'s best interest to terminate her parental rights.  But there is also a substantial amount of evidence that supports the trial court's best interest finding—Mother refuses to acknowledge and treat her ongoing mental health issues, which is DFPS's primary concern;  Mother has acted out aggressively in the past, likely due in part to her mental illness;  Mother did not completely avail herself of the services provided by DFPS;  when asked what her plans were for M.C. if the trial court returned M.C. to her, Mother said that she had not “thought about those possibilities”;  M.C. is bonded with her foster parents but not with Mother;  since being removed from Mother's care, M.C. has become less anxious and her speech and behavior have improved;  M.C.'s foster parents have an appropriate home, want to adopt her, and can provide an environment that is more stable than the environment that Mother can provide;  and Bernal and Smith both reasoned that termination was in M.C.'s best interest.

Viewing the evidence under the appropriate standards of review, and considering any relevant nonexclusive Holley factors—including the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, the parental abilities of those seeking custody, the plans for the child by these individuals and by the agency seeking custody, and the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one—we hold that the evidence is legally and factually sufficient to support the trial court's finding that termination of the parent-child relationship between Mother and M.C. is in M.C.'s best interest.  See Tex. Fam.Code Ann. § 161.001(b)(2);  Holley, 544 S.W.2d at 371–72.  We overrule Mother's second issue.

V. Conclusion

Having overruled Mother's issues, we affirm the trial court's judgment terminating Mother's parental rights to M.C.

FOOTNOTES

1.   See Tex.R.App. P. 47.4.

2.   We note that DFPS questioned Mother at length during trial about her compliance or noncompliance with the numerous requirements contained in the service plan, which Mother expressly acknowledged became an order of the trial court.  Thus, even if the trial court had not taken judicial notice of its file, Mother's argument would be unpersuasive.

3.   Mother said that if anyone had ever diagnosed her with paranoid features, schizoaffective disorder, or schizophrenia, then that person “would be wrong.”

4.   The case was later no-billed.

5.   Bernal testified that M.C. can be endangered if Mother is suffering from a delusion that a chip has been implanted in M.C.'s head.

6.   lt appears that Mother's comments about being “automated” occurred after M.C. was removed, but they are nevertheless indicative of Mother's mental health condition before the removal.

7.   Mother has accused several people of molesting M.C. No one has ever been charged.

8.   The family code does not provide for substantial compliance with a family service plan.  See In re M.C.G., 329 S.W.3d 674, 676 (Tex.App.—Houston [14th Dist.] 2010, pet. denied).  Moreover, insofar as Mother complains that her service plan was not admitted into evidence, as we explained earlier, the contents of the plan, and Mother's compliance or noncompliance with its terms, were discussed at length throughout trial.

BILL MEIER, JUSTICE