In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-14-00457-CV ____________________
IN THE INTEREST OF Z.L.M. __________________________________________________________________
On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. C-218,765 __________________________________________________________________
MEMORANDUM OPINION
The trial court terminated appellant S.M.’s parental rights to Z.L.M. In this
accelerated appeal, appellant presents two issues challenging the legal and factual
sufficiency of the evidence to support termination of her parental rights. See Tex.
Fam. Code Ann. § 263.405 (West 2014). We affirm the trial court’s order of
termination.
Factual Background
Lynda Porter, a foster care worker, testified that appellant’s involvement
with the Texas Department of Family and Protective Services (the “Department”)
predates this case. Porter testified that, in 2006, appellant’s infant daughter was
1 removed from appellant’s care, the daughter suffers from disabilities caused by her
abusive father, appellant’s former husband, and the daughter resides with
appellant’s sister. Appellant admitted that she was responsible for her daughter and
that her husband shook the child too hard after she swallowed a penny, but
appellant believed her husband was trying to help the child and accidentally caused
brain damage.
Appellant testified that she and her husband subsequently had a son. Porter
testified that, in 2008, appellant’s infant son was removed from her care because
appellant had left the child with a caregiver who had a history with the
Department, and the child had suffered some bruising that appeared to be from a
spanking or beating. This child now resides with his step-grandparents. Appellant
testified that she initially thought the bruising on her son was a rash and, although
she knew her husband had done something to her son, she did not know whether
the bruising was caused by abuse. Porter testified that appellant did not appear to
believe that the abuse of these children was severe enough to warrant the
Department’s involvement.
Robert Meier, a clinical psychologist, testified that he first met with
appellant in 2009 and she showed signs of paranoia and schizoid behavior. Meier
testified that appellant had poor judgment, seriously impaired social functioning,
2 and was not taking her medications correctly; thus, he did not believe that she had
the judgment necessary to raise a child. He diagnosed appellant with depressive
disorder not otherwise specified, paranoid schizophrenia, and possible schizoaffective
disorder.
In July 2013, appellant gave birth to Z.L.M. Porter testified that appellant
began exhibiting unusual and erratic behavior in the hospital, such as screaming,
not allowing the hospital staff to care for her medical needs, and not being able to
answer questions. Hospital staff members contacted the Department and Z.L.M.
was removed from appellant’s care. Porter testified that the Department originally
planned on family reunification, but the goal later changed to unrelated adoption.
Porter explained that the Department was concerned because, during appellant’s
pregnancy, appellant was in a violent relationship and had not taken the necessary
steps to protect herself or her unborn child. However, appellant testified that she
was no longer in a relationship with this person and that he had not been abusive.
Porter also testified that appellant had been found to be emotionally unstable
and incapable of caring for Z.L.M. Meier, who evaluated appellant again in 2013,
testified that appellant showed several symptoms of schizophrenia and was not
taking her medications as prescribed. Appellant testified that she has always
complied with her physician’s instructions regarding medication. According to
3 Meier, appellant did not appear capable of caring for herself, much less a child, and
he believed that someone needed to visit appellant two to three times a week to
ensure that appellant was functioning adequately and taking her medication
properly.
Porter testified that she had observed appellant during visits with Z.L.M. and
that appellant did some unusual things, but nothing Porter found necessary to
correct. Porter testified that Z.L.M. is one year old, is in a foster-to-adopt home,
and is happy and healthy. Porter opined that appellant allows her children to
remain in endangering surroundings and is not a protective caregiver. Porter
believed that appellant’s mental state would prevent her from providing for
Z.L.M.’s needs. Meier opined that appellant may need supervision to care for a
child and that it would be helpful if appellant had her psychiatric symptoms under
control before assuming the responsibility of a child’s primary caretaker. Porter
and Meier both believed that it was in Z.L.M’s best interest that appellant’s rights
be terminated.
Appellant testified that she has resided in an apartment for four years, she
has a room available for Z.L.M., and she has “childproofed” her home. She
testified that her driver’s license is suspended, she stays home, she receives income
disability from Social Security, she can apply for food stamps and place Z.L.M. in
4 the WIC Program, and she could financially provide for Z.L.M. She testified that
her current diagnosis is schizoid personality type disorder. Appellant explained that
she sees her doctor every three months, meets with her MHMR case manager once
or twice a month, and takes Prozac once daily for depression, Buspar three times
daily for anxiety, and Trazodone once every evening for sleeping. Appellant
testified that she thinks clearly when on her medication, she is mentally capable of
caring for Z.L.M. and providing for her physical, emotional, and mental needs, she
is willing to set aside her own needs to meet Z.L.M.’s needs, and she is able to
protect Z.L.M. from other people who may cause her harm. Despite the removal of
her two oldest children, appellant believed she could care for Z.L.M. Appellant
believed it is in Z.L.M.’s best interest that appellant’s rights not be terminated.
The trial court found that it was in Z.L.M.’s best interest for appellant’s
rights to be terminated. In its order of termination, the trial court found that
appellant: (1) knowingly placed or knowingly allowed Z.L.M. to remain in
conditions or surroundings which endanger Z.L.M.’s physical or emotional well-
being; and (2) engaged in conduct or knowingly placed Z.L.M. with persons who
engaged in conduct which endangers Z.L.M.’s physical or emotional well-being.
The trial court also found that (1) appellant has a mental or emotional illness or a
mental deficiency that renders her unable to provide for Z.L.M.’s physical,
5 emotional, and mental needs; and (2) appellant’s illness or deficiency, in all
reasonable probability, will continue to render her unable to provide for Z.L.M.’s
needs until Z.L.M.’s eighteenth birthday.
Legal and Factual Sufficiency
In issues one and two, appellant contends that the evidence is legally and
factually insufficient to support the trial court’s findings that termination is proper
under Texas Family Code sections 161.001(1)(D) and (E) and 161.003(a). Under
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-14-00457-CV ____________________
IN THE INTEREST OF Z.L.M. __________________________________________________________________
On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. C-218,765 __________________________________________________________________
MEMORANDUM OPINION
The trial court terminated appellant S.M.’s parental rights to Z.L.M. In this
accelerated appeal, appellant presents two issues challenging the legal and factual
sufficiency of the evidence to support termination of her parental rights. See Tex.
Fam. Code Ann. § 263.405 (West 2014). We affirm the trial court’s order of
termination.
Factual Background
Lynda Porter, a foster care worker, testified that appellant’s involvement
with the Texas Department of Family and Protective Services (the “Department”)
predates this case. Porter testified that, in 2006, appellant’s infant daughter was
1 removed from appellant’s care, the daughter suffers from disabilities caused by her
abusive father, appellant’s former husband, and the daughter resides with
appellant’s sister. Appellant admitted that she was responsible for her daughter and
that her husband shook the child too hard after she swallowed a penny, but
appellant believed her husband was trying to help the child and accidentally caused
brain damage.
Appellant testified that she and her husband subsequently had a son. Porter
testified that, in 2008, appellant’s infant son was removed from her care because
appellant had left the child with a caregiver who had a history with the
Department, and the child had suffered some bruising that appeared to be from a
spanking or beating. This child now resides with his step-grandparents. Appellant
testified that she initially thought the bruising on her son was a rash and, although
she knew her husband had done something to her son, she did not know whether
the bruising was caused by abuse. Porter testified that appellant did not appear to
believe that the abuse of these children was severe enough to warrant the
Department’s involvement.
Robert Meier, a clinical psychologist, testified that he first met with
appellant in 2009 and she showed signs of paranoia and schizoid behavior. Meier
testified that appellant had poor judgment, seriously impaired social functioning,
2 and was not taking her medications correctly; thus, he did not believe that she had
the judgment necessary to raise a child. He diagnosed appellant with depressive
disorder not otherwise specified, paranoid schizophrenia, and possible schizoaffective
disorder.
In July 2013, appellant gave birth to Z.L.M. Porter testified that appellant
began exhibiting unusual and erratic behavior in the hospital, such as screaming,
not allowing the hospital staff to care for her medical needs, and not being able to
answer questions. Hospital staff members contacted the Department and Z.L.M.
was removed from appellant’s care. Porter testified that the Department originally
planned on family reunification, but the goal later changed to unrelated adoption.
Porter explained that the Department was concerned because, during appellant’s
pregnancy, appellant was in a violent relationship and had not taken the necessary
steps to protect herself or her unborn child. However, appellant testified that she
was no longer in a relationship with this person and that he had not been abusive.
Porter also testified that appellant had been found to be emotionally unstable
and incapable of caring for Z.L.M. Meier, who evaluated appellant again in 2013,
testified that appellant showed several symptoms of schizophrenia and was not
taking her medications as prescribed. Appellant testified that she has always
complied with her physician’s instructions regarding medication. According to
3 Meier, appellant did not appear capable of caring for herself, much less a child, and
he believed that someone needed to visit appellant two to three times a week to
ensure that appellant was functioning adequately and taking her medication
properly.
Porter testified that she had observed appellant during visits with Z.L.M. and
that appellant did some unusual things, but nothing Porter found necessary to
correct. Porter testified that Z.L.M. is one year old, is in a foster-to-adopt home,
and is happy and healthy. Porter opined that appellant allows her children to
remain in endangering surroundings and is not a protective caregiver. Porter
believed that appellant’s mental state would prevent her from providing for
Z.L.M.’s needs. Meier opined that appellant may need supervision to care for a
child and that it would be helpful if appellant had her psychiatric symptoms under
control before assuming the responsibility of a child’s primary caretaker. Porter
and Meier both believed that it was in Z.L.M’s best interest that appellant’s rights
be terminated.
Appellant testified that she has resided in an apartment for four years, she
has a room available for Z.L.M., and she has “childproofed” her home. She
testified that her driver’s license is suspended, she stays home, she receives income
disability from Social Security, she can apply for food stamps and place Z.L.M. in
4 the WIC Program, and she could financially provide for Z.L.M. She testified that
her current diagnosis is schizoid personality type disorder. Appellant explained that
she sees her doctor every three months, meets with her MHMR case manager once
or twice a month, and takes Prozac once daily for depression, Buspar three times
daily for anxiety, and Trazodone once every evening for sleeping. Appellant
testified that she thinks clearly when on her medication, she is mentally capable of
caring for Z.L.M. and providing for her physical, emotional, and mental needs, she
is willing to set aside her own needs to meet Z.L.M.’s needs, and she is able to
protect Z.L.M. from other people who may cause her harm. Despite the removal of
her two oldest children, appellant believed she could care for Z.L.M. Appellant
believed it is in Z.L.M.’s best interest that appellant’s rights not be terminated.
The trial court found that it was in Z.L.M.’s best interest for appellant’s
rights to be terminated. In its order of termination, the trial court found that
appellant: (1) knowingly placed or knowingly allowed Z.L.M. to remain in
conditions or surroundings which endanger Z.L.M.’s physical or emotional well-
being; and (2) engaged in conduct or knowingly placed Z.L.M. with persons who
engaged in conduct which endangers Z.L.M.’s physical or emotional well-being.
The trial court also found that (1) appellant has a mental or emotional illness or a
mental deficiency that renders her unable to provide for Z.L.M.’s physical,
5 emotional, and mental needs; and (2) appellant’s illness or deficiency, in all
reasonable probability, will continue to render her unable to provide for Z.L.M.’s
needs until Z.L.M.’s eighteenth birthday.
Legal and Factual Sufficiency
In issues one and two, appellant contends that the evidence is legally and
factually insufficient to support the trial court’s findings that termination is proper
under Texas Family Code sections 161.001(1)(D) and (E) and 161.003(a). Under
legal sufficiency review, we review all the evidence in the light most favorable to
the finding to determine whether “a reasonable trier of fact could have formed a
firm belief or conviction that its finding was true.” In the Interest of J.F.C., 96
S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could and we disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible. Id. If no reasonable factfinder could form a firm belief or conviction
that the matter that must be proven is true, the evidence is legally insufficient. Id.
Under factual sufficiency review, we must 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. Id. We give due consideration to evidence
that the factfinder could reasonably have found to be clear and convincing. Id. We
6 consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor of its finding. 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.” Id.
The decision to terminate parental rights must be supported by clear and
convincing evidence, i.e., “the measure or degree of 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 (West 2014); In the
Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the
parent committed one or more predicate acts or omissions and that termination is in
the child’s best interest. See Tex. Fam. Code Ann. § 161.001 (West 2014); see also
J.L., 163 S.W.3d at 84. A judgment will be affirmed if any one of the grounds is
legally and factually sufficient and the best interest finding is also legally and
factually sufficient. In the Interest of C.A.C., No. 09-10-00477-CV, 2011 Tex.
App. LEXIS 3385, at *2 (Tex. App.—Beaumont May 5, 2011, no pet.) (mem. op.).
Section 161.001(1)(D) allows for termination if the trial court finds by clear
and convincing evidence that the parent has “knowingly placed or knowingly
7 allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child[.]” Tex. Fam. Code Ann. §
161.001(1)(D). The “endangerment analysis focuses on the evidence of the child’s
physical environment, although the environment produced by the conduct of the
parents bears on the determination of whether the child’s surroundings threaten his
well-being.” Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied). “Inappropriate, abusive, or unlawful conduct by persons
who live in the child’s home or with whom the child is compelled to associate on a
regular basis in the home is a part of the ‘conditions or surroundings’ of the child’s
home[.]” Id. (quoting In re C.L., No. 02-09-00126-CV, 2009 WL 3078588, at *2
(Tex. App.—Fort Worth Sept. 24, 2009, no pet.) (mem. op.)). The trial court may
consider parental conduct both before and after the child’s birth. Jordan, 325
S.W.3d at 721.
A trial court may examine a parent’s history with other children when
considering the risks or threats of a parent’s environment. In the Interest of E.A.F.,
424 S.W.3d 742, 751 (Tex. App.—Houston [14th Dist.] 2014, pet. filed). In this
case, the trial court heard evidence that, before Z.L.M. was born, appellant was
married to a man who abused their daughter, causing brain damage and resulting in
the child’s removal. The record indicates that appellant remained married to this
8 man and that the man subsequently abused their son, which resulted in that child’s
removal. While appellant was five months pregnant with Z.L.M., she was in a
violent relationship with another man, during which she was allegedly punched in
the stomach and burned with cigarettes, yet she remained in this relationship until
Z.L.M.’s removal. Porter expressed concern that appellant did not believe that the
abuse of her two oldest children was so severe as to require the Department’s
involvement and that appellant did not protect either herself or Z.L.M. while in an
abusive relationship during her pregnancy with Z.L.M. “[A]busive or violent
conduct by a parent or other resident of a child’s home may produce an
environment that endangers the physical or emotional well-being of a child.” In the
Interest of J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
The trial court was entitled to consider appellant’s exposure of Z.L.M. to domestic
violence, a danger that she disregarded, as evidence of endangerment. See Jordan,
325 S.W.3d at 721 (“[A] child is endangered when the environment creates a
potential for danger which the parent is aware of but disregards.”); see also J.T.G.,
121 S.W.3d at 125; In the Interest of J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—
Houston [14th Dist.] 2003, no pet.).
Additionally, “[a] parent’s failure to take medication can expose a child to
endangerment of her emotional or physical well-being.” In the Interest of M.P.,
9 No. 02-14-00032-CV, 2014 Tex. App. LEXIS 8689, at *55 (Tex. App.—Fort
Worth Aug. 7, 2014, no pet.) (mem. op.). Likewise, “[a] parent’s mental state may
be considered in determining whether a child is endangered if that mental state
allows the parent to engage in conduct that jeopardizes the physical or emotional
well-being of the child.” Jordan, 325 S.W.3d at 723. The trial court heard
testimony that appellant has been diagnosed with paranoid schizophrenia, has a
history of failing to properly take her medication, and her erratic behavior led to
the Department’s removal of Z.L.M. Meier opined that appellant needs supervision
two to three times weekly to ensure proper usage of medication and adequate
functioning. The trial court heard testimony from Porter and Meier that appellant is
unstable, incapable of caring for Z.L.M., and is not a protective caregiver. The trial
court was entitled to consider appellant’s mental state and history of non-
compliance with prescription medication as conduct subjecting Z.L.M. to a life of
uncertainty and instability. See id.
The trial court could reasonably conclude that appellant’s conduct created an
environment that endangers Z.L.M.’s physical and emotional well-being and could
infer from her past endangering conduct that similar conduct would recur should
Z.L.M. be returned to appellant. See In the Interest of M.R.J.M., 280 S.W.3d 494,
502 (Tex. App.—Fort Worth 2009, no pet.); see also J.T.G., 121 S.W.3d at 125.
10 The trial court could reasonably have formed a firm belief or conviction that
appellant knowingly placed or knowingly allowed Z.L.M. to remain in conditions
or surroundings which endangered her physical or emotional well-being. See Tex.
Fam. Code Ann. § 161.001(1)(D). We overrule issue one in part, need not address
appellant’s issue one argument regarding section 161.001(E), and need not address
issue two challenging termination pursuant to section 161.003(a). See C.A.C., 2011
Tex. App. LEXIS 3385, at *2; see also Tex. R. App. P. 47.1. Because S.M. does
not challenge the sufficiency of the evidence to support the trial court’s best
interest finding, we need not address this issue. See In the Interest of A.V., 113
S.W.3d 355, 362 (Tex. 2003); see also Tex. R. App. P. 47.1. We affirm the trial
court’s order of termination.
AFFIRMED.
___________________________ STEVE McKEITHEN Chief Justice
Submitted on December 29, 2014 Opinion Delivered February 5, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.