in the Interest of E.R.N. and A.A.N., Children

Opinion

MEMORANDUM OPINION No. 04-11-00161-CV

In the INTEREST OF E.R.N. and A.A.N., Children

From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2009-PA-01540 Honorable Solomon J. Casseb, III, Judge Presiding 1

Opinion by: Marialyn Barnard, Justice

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice

Delivered and Filed: October 26, 2011

AFFIRMED

This is an appeal from a trial court’s order terminating appellant mother’s parental rights

to her children, E.R.N., a child with special needs, and A.A.N. We affirm the trial court’s

judgment.

BACKGROUND

The Texas Department of Family and Protective Services (“the Department”) sought

termination of appellant’s parental rights to her children after appellant was charged with

assaulting her mother while A.A.N was in appellant’s arms. At the conclusion of the termination

hearing, the trial court terminated appellant’s parental rights, finding it was in the children’s best

1 The Honorable Solomon J. Casseb, III is the presiding judge of the 288th Judicial District Court, Bexar County, Texas. However, the Honorable Charles Montemayor signed the termination order at issue in this appeal. 04-11-00161-CV

interest and that appellant: (1) failed to comply with a court order that established the actions

necessary for her to gain custody of her children; and (2) had a mental or emotional illness that

rendered her unable to provide for the physical, emotional, and mental needs of her children.

The trial court found appellant’s illness would render her unable to provide for the children’s

needs until the children turned eighteen years old, the Department had been the temporary or

managing conservator of the children for the preceding six months, and the Department had

made reasonable efforts to return the children to appellant.

Appellant timely filed her motion for new trial, statement of appellate points, notice of

appeal, and affidavit of indigency. After a hearing, the trial court denied the motion for new

trial, ruled appellant was indigent for purposes of appeal, and found appellant’s points of appeal

were not frivolous. On appeal, appellant contends the evidence was legally and factually

insufficient to: (1) sustain a finding appellant did not comply with the provisions of the court

order; (2) sustain the finding that appellant’s emotional or mental illness rendered her unable to

meet the needs of her children; and (3) support the court’s finding that termination of appellant’s

rights was in the best interest of her children.

ANALYSIS

Parental rights may be terminated only upon proof of clear and convincing evidence that

the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code (“the

Code”), and that termination is in the best interest of the children. TEX. FAM. CODE ANN.

§ 161.001(1), (2) (West Supp. 2010); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). “[T]he

appellate standard for reviewing termination findings is whether the evidence is such that a

factfinder could reasonably form a firm belief or conviction about the truth of the State’s

allegations.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

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Standard of Review

When we review whether the evidence was legally sufficient, we view the evidence in a

light most favorable to the judgment and give due deference to the factfinder’s conclusions. In

re J.O.A., 283 S.W.3d at 344. We therefore assume the trial court resolved the disputed facts in

favor of its findings so long as a reasonable factfinder could do so, and disregarded all evidence a

reasonable factfinder could have disbelieved. Id. We do not disregard all evidence that does not

support the finding because doing so could skew our analysis, but if no factfinder could have

formed a firm belief that its findings are true, the evidence is legally insufficient. In re J.F.C., 96

S.W.3d 256, 266 (Tex. 2002).

To determine factual sufficiency, we consider, in light of the entire record, the evidence a

factfinder could reasonably have found to be clear and convincing, and the evidence must be

such that a reasonable factfinder could form a firm belief that its finding is true. Id. We will

sustain a factual sufficiency challenge only if the evidence is ‘“so weak or . . . so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust.”’ In re C.H., 89 S.W.3d

17, 24-25 (Tex. 2002) (quoting In re J.N.R., 982 S.W.2d 137, 143 (Tex. App.—Houston [14th

Dist.] 1998, no pet.)).

Finding of Mental or Emotional Illness or Deficiency

In her second and third issues, appellant complains the evidence was legally and factually

insufficient to support the trial court’s finding that she had a mental or emotional illness that

would prevent her from being able to provide for the children’s needs. Appellant also contends

the evidence was legally and factually insufficient to support the trial court’s finding that

termination of appellant’s rights was in the best interest of the children.

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Termination of the parent-child relationship is permitted under section 161.003(a) of the

Code if the court finds:

(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 . . . ;

(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.

TEX. FAM. CODE ANN. § 161.003(a).

“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 C.D., 664 S.W.2d 851, 853 (Tex.

App.—Dallas 1984, no writ); see also In re A.I.G., 135 S.W.3d 687, 692 (Tex. App.—San

Antonio 2003, no pet.).

As for the best interest of the child, there is a strong presumption that it is in the child’s

best interest to remain with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). A non-

exhaustive list of factors may be used to determine the best interest of a child. See In re J.F.C.,

96 S.W.3d at 261-62. The applicable factors include: (1) “the desires of the child,” (2) “the

emotional and physical needs of the child now and in the future,” (3) “any emotional and

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physical danger to the child now and in the future,” (4) “the parenting ability of the individuals

seeking custody,” (5) “the programs available to assist those individuals to promote the best

interest of the child,” (6) “the stability of the home or proposed placement,” and (7) “the acts or

omissions of the parent that may indicate that the existing parent-child relationship is not a

proper one.” Id. The factfinder is not required to consider every factor, and no single factor is

controlling. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

The Evidence

At trial, appellant admitted she had been diagnosed with bi-polar disorder and was

currently taking medication to treat the disorder. Appellant also admitted her children were

taken away after she assaulted her mother while A.A.N. was in appellant’s arms; appellant

received deferred adjudication for the assault. During the pendency of the case, appellant

admitted she was charged with assaulting the children’s father as well as another woman in a

parking lot, but stated those charges were dropped.

After the children were removed from appellant and placed in foster care, appellant was

ordered to undergo counseling sessions with Carlos Castillo, a counselor with the Department.

At the time of trial, Castillo had seen appellant every other week since October 2009. Castillo

testified bi-polar disorder can manifest itself with violent outbursts or increased irritability, and

he was worried about appellant’s tolerance level for E.R.N. because he has special needs.

Castillo was aware appellant was arrested for assaulting her mother, and that appellant was

involved in a physical altercation with the children’s father and another woman in a parking lot.

Along with the bi-polar disorder, Castillo opined appellant’s parenting was hindered because she

was border-line functioning and intellectually disabled.

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Castillo testified he had seen very minimal progress in appellant’s “insight to parenting”

and appellant did not make good parenting decisions. Castillo stated he did not believe appellant

understood the needs of a special needs child. Castillo then testified appellant had no capacity to

take care of the children and “that’s not going to change.”

Richard Lane, a psychotherapist for the children, was tasked with observing visitations

between appellant and her children. Lane testified E.R.N. has a delay in his speech, vocabulary,

cognitive reasoning, and social skills for his age group. E.R.N. was five and A.A.N. was three at

the time of trial. Along with these developmental problems, Lane testified E.R.N. also has a

seizure disorder. Because of these special needs, Lane testified E.R.N. can be very difficult to

handle at times, and therefore, needs a very structured home and school environment, as well as

a parent with a strong support system. Lane testified appellant’s support system—appellant’s

mother, brother, sister, and neighbor—would interfere with the type of structure E.R.N. requires

because the family has shown signs of physical, mental, and behavioral problems. Despite this,

Lane testified appellant loves her children, and they love her. Lane has never seen appellant in a

manic or depressive state and has never seen appellant acting violently with the children.

Finally, Lane testified he did not believe the children should be placed in long-term foster care,

but that after at least six more months of therapy, the children may be able to go home with

appellant. Lane qualified his answer by stating it could take much longer than six months or that

it might never happen. Lane believed the best situation would be for the children’s current foster

parents to adopt them while allowing appellant some visitation rights.

Furthermore, there was testimony that at the time of trial, the children had been placed in

the new foster parents’ home for about three weeks and Lane had noticed some recent progress

with E.R.N. The children’s foster mother testified she was a special needs teacher with the

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Liberty Hill Independent School District and was a Certified Nursing Assistant in Florida. She

testified that when the children were first placed in their home, E.R.N. would only grunt and

point to things he wanted, but eventually opened up and started asking for them. She attributed

E.R.N.’s progress to a stable and structured home life. She said a typical day consists of the

children dressing themselves, going to day care, having free time at home to play, having dinner,

then a bath, and finally bedtime. The foster mother testified if they were allowed to adopt the

children, E.R.N. would be transferred to her classroom for the morning session and then finish

out the day at a day care facility with A.A.N. She also testified if she and her husband were

allowed to adopt the children, they would be open to allowing visits with appellant as long as the

children’s therapist approved.

Keeping the standard of review in mind, we hold the above evidence was both legally and

factually sufficient to allow a reasonable factfinder to form a firm belief or conviction that: (1)

termination of appellant’s parental rights was in the children’s best interest; (2) appellant’s

mental or emotional deficiency renders her unable to provide for the physical, emotional, and

mental needs of E.R.N. and A.A.N.; and (3) appellant, in all reasonable probability, was unable

to provide for her children’s needs until their eighteenth birthdays.

Because we need to find only one of the stated grounds for termination, as well as the

best interest of the children, sufficient to uphold the trial court’s termination order, we need not

address appellant’s first issue. See In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth

2001, no pet.).

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CONCLUSION

Because we need not address appellant’s first issue, and we overrule appellant’s second

and third issues, the trial’s court judgment terminating appellant’s parental rights is affirmed.

Marialyn Barnard, Justice

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