in the Interest of S.J.S., a Child

• Court: Court of Appeals of Texas
• Decided: June 27, 2012
• Docket: 04-12-00067-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-12-00067-CV

IN THE INTEREST OF S.J.S., A Child

From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2010-PA-01703 Honorable Dick Alcala, Judge Presiding 1

Opinion by: Marialyn Barnard, Justice

Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Marialyn Barnard, Justice

Delivered and Filed: June 27, 2012

AFFIRMED

Appellant R.S. appeals the trial court’s judgment terminating her parental rights to her

child, S.J.S. Appellant contends the evidence is factually insufficient to establish the Texas

Department of Family and Protective Services (“the Department”) made reasonable efforts to

return S.J.S. to appellant. 2 We affirm.

1 The Honorable Janet Littlejohn is the presiding judge of the 150th Judicial District Court of Bexar County. However, the termination order was signed by the Honorable Dick Alcala, who is a senior district judge sitting by assignment in the 150th Judicial District Court. 2 In her brief, appellant recites the standard of review for both factual and legal sufficiency. However, in stating her issues, appellant twice states she is challenging the factual sufficiency of the evidence and from her argument it appears her complaint is limited to a factual sufficiency challenge. 04-12-00067-CV

BACKGROUND

Appellant has been diagnosed with several mental health disorders and in the past

exhibited violent, aggressive behavior toward others after the birth of her first child, M.J.S. She

was noted to have been neglectful toward M.J.S. and was found to have physically abused other

children. Ultimately, her parental rights to M.J.S. were terminated.

S.J.S. was born on July 29, 2010. The day after his birth, the Department received a

“priority one referral” alleging appellant had tested positive for benzodiazepines and opiates.

Although previously diagnosed with schizoid affective disorder with psychotic episodes as well

as bipolar disorder, appellant was not taking any prescribed medications at the time of the birth

of S.J.S. Despite the positive drug test, appellant denied using any drugs. Because of appellant’s

mental illness, previous history, current drug test results, and her financial inability to care for

S.J.S., the Department immediately removed S.J.S. from appellant the day after his birth. Eight

days later, the Department filed its petition for protection, conservatorship, and termination.

In its petition, the Department sought termination in the event reunification was not

possible. Among the grounds stated in the petition, the Department alleged termination was

appropriate because it was in the best interest of the child and appellant “has a mental or

emotional illness or a mental deficiency that renders [her] unable to provide for the physical,

emotional, and mental needs of [S.J.S.] and will continue to render [her] unable to provide for

[S.J.S.’s] needs until the eighteenth birthday of [S.J.S.].” See TEX. FAM. CODE ANN.

§ 161.003(a) (West 2008). The trial court awarded temporary custody of S.J.S to the

Department.

In December 2011, a bench trial was held regarding the Department’s request for

termination of appellant’s parental rights to S.J.S. After considering the evidence, the trial court

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signed a judgment terminating appellant’s rights to S.J.S. The trial court found: (1) termination

was in the best interest of the child, (2) appellant has a mental or emotional illness or a mental

deficiency that renders her unable to provide for S.J.S.’s physical, emotional, and mental needs,

(3) the illness or deficiency would in all probability continue until S.J.S.’s eighteenth birthday,

(4) the Department had been the temporary conservator of S.J.S. for at least six months, (5) and

the Department had made reasonable efforts to return S.J.S. to appellant. See id. After the trial

court signed the judgment of termination, appellant was appointed appellate counsel who

perfected this appeal.

ANALYSIS

A parent’s rights to a child may be terminated only upon proof by clear and convincing

evidence that the parent: (1) has committed an act prohibited by section 161.001(1) of the Texas

Family Code (“the Code”), or has a mental or emotional illness or mental deficiency as described

in section 161.003(a) of the Code; and (2) termination is in the best interest of the child. TEX.

FAM. CODE ANN. §§ 161.001, 161.003(a) (West 2008 & Supp. 2011); see In re J.O.A., 283

S.W.3d 336, 344 (Tex. 2009) (holding proceedings to terminate parental rights under Code

require proof by clear and convincing evidence); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980)

(adopting clear and convincing standard of proof for sufficiency review in termination of

parental rights cases). Clear and convincing evidence is proof that will produce a firm belief or

conviction in the mind of the fact finder that the allegations sought to be established are true.

TEX. FAM. CODE ANN. § 101.007 (West 2008).

Standard of Review

When we review whether the evidence is factually sufficient to support a challenged

finding in a termination case–here, whether the Department made reasonable efforts to return

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S.J.S. to appellant–we must consider, in light of the entire record, the evidence a trier of fact

could reasonably have found to be clear and convincing and determine “whether the evidence is

such that a factfinder could reasonably form a firm belief or conviction about the truth of the

[Department’s] allegations.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (quoting In re C.H.,

89 S.W.3d 17, 25 (Tex. 2002)). In reviewing termination findings for factual sufficiency, we

must give due deference to the trier of fact’s findings and must not supplant its judgment with

our own. In re H.R.M., 2009 S.W.3d 105, 108 (Tex. 2006). “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., 96 S.W.3d at 266.

Application

Appellant’s rights were terminated under section 161.003(a) of the Code. That section

permits a court to order termination of the parent child relationship if the court finds:

• 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;

• 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;

• 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);

• the department has made reasonable effort to return the child to the parent; and

• the termination is in the best interest of the child.

TEX. FAM. CODE ANN. § 161.003(a). The trial court found all the factors stated in section

161.003(a). In her single issue, appellant contends the evidence is factually insufficient to

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support the trial court’s finding that the Department made reasonable efforts to return S.J.S. to

her. Appellant does not challenge the sufficiency of the evidence to support the trial court’s

findings as to the other factors stated in section 161.003(a).

Appellant contends that because the Department proffered testimony from only one

witness associated with Child Protective Services, Nicole Curel, we have only this testimony to

determine if there is sufficient evidence that the Department made reasonable efforts to reunify

S.J.S and appellant. Appellant further contends that the testimony of one of the Department’s

experts, psychologist Russel Thompson, provides the only basis for the court to determine what

efforts might be deemed “reasonable” in this case. As we discuss below, we disagree that

Curel’s testimony is the only evidence before the court that would permit the court to find the

Department made reasonable efforts to reunite S.J.S. and appellant, and we further disagree that

Dr. Thompson’s testimony provides the standard for what constitutes a reasonable effort.

A family service plan is designed to reunify a parent with a child who has been removed

by the Department. Liu v. Tex. Dep’t of Family & Protective Servs., 273 S.W.3d 785 795 (Tex.

App.—Houston [1st Dist.] 2008, no pet.). Therefore, “[i]mplementation of a family service plan

by the Department is ordinarily considered a reasonable effort to return a child to its parent.” In

re N.R.T., 338 S.W.3d 667, 674 (Tex. App.—Amarillo 2011, no pet.); see also In re M.R.J.M.,

280 S.W.3d 494, 505 (Tex. App.—Fort Worth 2009, no pet.).

Here, the Department formulated a family service plan for appellant. In a status hearing

order, the trial court specifically stated it had reviewed the plan and further found appellant had

reviewed and understood the family service plan. The court also incorporated the plan into its

order. The plan described the goals appellant would have to achieve in order to be reunified with

S.J.S. The goals included:

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• Showing an ability to protect and parent S.J.S.;

• Demonstrating an ability to provide appropriate caregivers for S.J.S. in her absence;

• Addressing her own mental health needs;

• Demonstrating an ability to control her anger and express it in ways that do not hurt S.J.S. or others;

• Demonstrating an ability to provide basic needs for S.J.S. such as food, clothing, shelter, medical care, and supervision;

• Building a support network to help ensure the safety of S.J.S.;

• Maintaining housing that is safe and free of hazards; and

• Demonstrating an ability to change the pattern of behavior that resulted in the Department’s intervention.

The Department’s progress reports, which are part of the clerk’s record, as well as

testimony, established appellant completed several tasks required by the plan and the

Department, and was making progress with her parenting. However, the record also contains

evidence that appellant continued to be hospitalized several times a month for medical issues, to

display aggressive behaviors, and to go against doctor’s orders. Progress reports also stated the

Department had been working with appellant for several months and there was no progress made

in alleviating the issues that brought S.J.S. into the Department’s care initially.

Subsequent progress reports noted appellant’s failures to comply with the family service

plan. More specifically, she failed to provide the names of individuals who could serve as a

support system. Although she provided the names of eight individuals, all but one had a history

with the Department or Adult Protective Services. The few individuals the caseworker was able

to reach had been told by appellant the Department was involved because she was wheel-chair

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bound, not because her mental illness prevented her from caring for her child. Only one

individual seemed willing to help, but she had significant problems with the Department.

The progress reports also noted appellant’s refusal to stop smoking contrary to

physician’s orders and despite diagnoses of asthma and chronic pulmonary obstructive disorder

(“COPD”). Appellant continued to require hospitalization and refused to listen to or comply

with hospital discharge orders. She ultimately cancelled twelve visits with S.J.S. Appellant’s

own therapist described her behavior as “childlike,” first ranting and yelling, then wanting to

play games.

Subsequent progress reports further established appellant’s failure to achieve the

reunification goals set forth in the service plan. Although appellant continued her mental health

counseling, her therapist reported appellant’s attendance was inconsistent. The therapist

expressed deep concerns to appellant about her decision to continue smoking, despite

hospitalizations for pneumonia and a collapsed lung. Appellant’s continued, frequent

hospitalizations forced her to cancel visits with S.J.S. Appellant also advised a caseworker she

was currently homeless because she was evicted after moving into a larger apartment. She went

to live at Haven for Hope, but left for a hotel room allegedly paid for, in part, by her therapist.

Appellant advised she had no money and had not eaten in days despite the fact appellant was

receiving food stamps and other assistance. She ultimately found a new home after her landlord

was forced to refund her down payment.

Evidence in the record also showed the Department attempted to conduct a home study

for purposes of placing S.J.S. with a couple who were friends with appellant. However, when

contacted by a Department worker, the wife explained she had told appellant that it was unlikely

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she would accept placement of S.J.S as her husband was being transferred out of state. The wife

later confirmed she did not want to be studied as a possible placement for S.J.S.

There was also testimony about appellant’s failures to reach the goals required for

reunification. Curel, appellant’s caseworker, testified appellant had been hospitalized dozens of

times, which prompted the reunification goal that appellant provide a support network to care for

S.J.S. on those occasions when she was hospitalized. As noted in the progress reports, and as

testified to by Curel, appellant failed to provide appropriate or useful information about such a

support network. Instead, appellant provided names of individuals who had known appellant for

a short period of time–some she had met at a bus stop–and seemed to have no knowledge of her

mental problems.

As to addressing her mental health issues, Curel testified appellant was on medication for

her physical and mental well-being, but would often fail to take it. When Curel would visit,

appellant was unable to find her medication, leaving Curel to believe that she would not have

even bothered with it but for Curel’s prompting.

Appellant also failed to control her anger or find ways to express anger appropriately,

despite therapy and classes. Curel testified there were numerous incidents of appellant’s angry,

uncontrolled behavior, including at least one incident while appellant was holding S.J.S. during

visitation. Such incidents happened on a VIA transport vehicle, when appellant refused to exit

the vehicle, at the NICU of the hospital where S.J.S. was being treated, and in interactions with

doctors and other professionals attempting to help appellant.

As the Austin Court of Appeals found in Rodriguez v. Tex. Dep’t of Family & Protective

Servs., when the Department makes efforts to provide a parent with training, classes, assistance

with her medical or mental needs, and information to address those needs, the Department has

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made reasonable efforts at reunification even if the parent fails to make significant improvement

with regard to the goals of reunification. No. 03-05-00321-CV, 2006 WL 1358488, *7 (Tex.

App.—Austin May 19, 2006, no pet.) (mem. op.). Here, appellant was directed to classes, which

she completed, directed to services to assist her, and was under the care of a licensed therapist.

Curel, her caseworker, attempted to have appellant set up an appropriate support system so that

reunification might be achieved, yet appellant was unable to provide even one individual who

might fill that role. The individuals named by appellant were investigated and found

unsatisfactory by the Department. Curel visited appellant in her various homes, explaining to

appellant the need to make the home safe for S.J.S. Yet, the evidence shows appellant was at

times homeless and without food, despite the provision of public assistance.

After considering all the evidence, including the implementation of the family service

plan, we hold the evidence is such that the trial court could have reasonably formed a firm belief

or conviction that the Department made reasonable efforts to return S.J.S. to appellant. See In re

J.F.C., 96 S.W.3d at 266. The evidence simply shows those efforts were unsuccessful, due in

great part to appellant’s failures to deal with her physical and mental conditions.

Appellant seems to argue we cannot consider the implementation of a family service plan

in this case as evidence because the plan “was never admitted into evidence.” Appellant is

incorrect. The family service plan appears in the clerk’s record. The trial court’s failure to

affirmatively state on the record that it was taking judicial notice of the documents in the court’s

file, which included the plan and the Department’s progress reports, is not dispositive. This

court and at least one other court have held the trial court may be presumed to have taken judicial

notice of the records in the court’s file without any request being made and without an

announcement that it has done so. In re A.X.A., No. 04-09-00519-CV, 2009 WL 5150068, at *4

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n. 3 (Tex. App.—San Antonio Dec. 30, 2009, no pet.) (mem. op.) (citing Marble Slab Creamery,

Inc. v. Wesic, Inc., 823 S.W.2d 436, 439 (Tex. App.—Houston [14th Dist.] 1992, no pet.)

(presuming trial court took judicial notice of family service plan and order adopting plan; both

documents in clerk’s record)); In re A.W.B., 14-11-00926-CV, 2012 WL 1048640, at *3 (Tex.

App.—Houston [14th Dist.] Mar. 27, 2012, no pet.). As stated by the Fourteenth Court of

Appeals, a “trial court is presumed to judicially know what has previously taken place in the case

tried before it, and the parties are not required to prove facts that a trial court judicially knows.”

In re J.J.C., 302 S.W.3d 436, 446 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (internal

quotations and citation omitted). Accordingly, the trial court could consider the family service

plan as evidence, and as noted above, “[i]mplementation of a family service plan by the

Department is ordinarily considered a reasonable effort to return a child to its parent.” In re

N.R.T., 338 S.W.3d at 674; see also In re M.R.J.M., 280 S.W.3d at 505.

CONCLUSION

Based on the foregoing, we overrule appellant’s issue and affirm the trial court’s

judgment.

Marialyn Barnard, Justice

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