In re Interest of P.R.W.

• Decision Date: 17 May 2016
• Docket Number: NUMBER 13–15–00552–CV
• Citation: 493 S.W.3d 738
• Parties: In the Interest of P.R.W., a Child
• Court: Texas Court of Appeals

493 S.W.3d 738

In the Interest of P.R.W., a Child

NUMBER 13–15–00552–CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed May 17, 2016

Jacqueline A. Del Llano Chapa, Attorney at Law, Corpus Christi, TX, for Appellant.

Leslie Capace, Texas Department of Family and Protective Services, Austin, TX, for Appellees.

Before Justices Benavides, Perkes, and Longoria

MEMORANDUM OPINION

Memorandum Opinion by Justice Longoria

Appellant B.W. (“Mother”)¹ challenges the legal and factual sufficiency of the evidence supporting an order terminating her parental rights over her child, P.R.W. (“Child”), in a single issue. We affirm.

I. Background

A. 2014

On January 20, 2014, police in Corpus Christi responded to reports of a woman, Mother, slapping passing cars and yelling at the drivers not to go into an apartment building because of a gas leak. During this time, Mother was allegedly holding Child upside down by the ankles. The police detained Mother and involuntarily committed her to the hospital for a mental health evaluation. On that day, Mother tested positive for amphetamines. The Texas Department of Family and Protective Services (“the Department”) filed its original petition seeking conservatorship over Child.

Mother was discharged from the hospital several days later. Her discharge reports described her as being “grossly psychotic” at the time of her arrival. The discharge papers reflect that she was diagnosed with schizophrenia

and bipolar disorder, and referred to local mental health services for continued treatment. Mother testified at trial that she was diagnosed with bipolar disorder but denied having a diagnosis of schizophrenia.

Child was initially placed in foster care until M.S. and J.S. requested that the Department consider them for placement. M.S. and J.S. are the grandparents of C.B., who was Mother's boyfriend at one time.² Mother and Child had previously lived with C.B., but he was incarcerated during the entire pendency of this case. The Department approved M.S. and J.S.'s application, and Child resided with them for the majority of the proceedings in the trial court.

Throughout the remainder of 2014 the trial court issued several orders finding that Mother did not substantially comply with the service plans setting out the conditions necessary for her to regain custody of Child. In September of 2014—shortly after Mother was allowed unsupervised visitation—Mother tested positive for methamphetamine and marijuana. Mother testified at trial that she knew at the time that Child would not be returned to her if she used illegal drugs, but could not remember why she took the drugs. At a hearing on November 5, 2014, the trial court ordered Mother to submit to further drug screenings and that her visitation rights with Child would cease if a test was positive. Mother admitted that a drug screening that day would return positive for methamphetamine. However, the court excluded that screening from the reach of the order. Mother tested positive for marijuana again in December of 2014, but her visitation rights were not curtailed. Mother tested positive for drugs a total of four times in 2014.

Lisa Cardenas, the Department caseworker assigned to Mother's case, testified that she visited Mother on August 26, 2014. During that visit, Cardenas asked to see Mother's medications. Cardenas testified that it took Mother an unusually long amount of time to find the medication and that the dates on the medication bottles were older than she expected. Cardenas also observed that the medication bottles contained unequal amounts of medication even though Mother was supposed to take the medication on a daily basis.

B. 2015

In January of 2015 the trial court found extraordinary circumstances to permit Child to continue in the Department's care beyond the statutory deadline to dismiss the case. See Tex. Fam.Code Ann. § 263.401(b)

(West, Westlaw through 2015 R.S.).

Mother tested negative for drugs in early 2015. In March of 2015, the trial court found that Mother had substantially complied with her service plan. The trial court ordered Child returned to her custody during the week, but that Child would continue to spend the weekends with M.S. and J.S. The trial court also directed Mother to inform the Department if anyone moved into her apartment so that the Department could run a background check. Mother did not actually regain custody until April of 2015 because she took a trip to visit extended family in Boston.

During a home visit on April 23, 2015, Cardenas requested that Mother take a drug test. Mother initially agreed, but never complied with the request. Cardenas testified that she did not follow up because she did not realize until May that Mother missed her appointment for the test.

Police responded to an “overdose call” on June 2, 2015 involving Child. Police observed Mother telling a paramedic that she had given Child “gum” the night before and was subsequently “unable to walk or stand.” Paramedics examined Child and cleared him of any medical problems. According to the paramedics' report, Mother insisted that Child “isn't fine.” On the same day, Cardenas received phone calls from M.S. and a person at Child's daycare saying that Mother was acting erratically.³

Cardenas made an unannounced home visit to Mother's apartment on the same day. She found Mother there with M.L., a man unknown to the Department. Mother told Cardenas that M.L. had been living with her, but did not specify for how long. Cardenas testified at trial that M.L. was behaving erratically and asked if the Department “was programming the children.” Cardenas further testified that M.L. gestured with her arms in such a manner as to cause her to fear for her safety, and that M.L. refused to state his full name.

Cardenas then asked Mother why she did not have Child's asthma

medication earlier that day even though M.S. filled the prescription and gave it to Mother the day before. Cardenas testified that Mother became agitated and accused Cardenas of having already received permission from the trial court to remove Child from her custody. Mother also stated that she believed Cardenas and M.L. were somehow involved because she had seen the two of them “together on the street.” Cardenas asked Mother if she would consent to M.S. and J.S. taking care of Child for the next few days. Still agitated, Mother agreed because Cardenas allegedly already had permission to remove Child.

At Cardenas' request, M.S. and her daughter came to Mother's apartment to pick up Child. By this time, Mother's adult daughter had arrived and she and Mother were shouting at each other. Mother then asked M.S. to drive her somewhere, but Cardenas said that she would drive Mother wherever she needed to go. Cardenas testified that when they entered the car, Cardenas' phone made a “beep” noise and Mother said: “are you recording me? You're recording me. I'm not going to say anything.”

Mother also said that she had recently been beaten with a bat and was “black and blue” because of it, but Cardenas testified that Mother had no visible injuries. Cardenas offered to take Mother to a woman's shelter, but Mother requested that they drive back by Mother's apartment. Cardenas then dropped Mother off by the side of the road at her request because Mother saw someone that she apparently knew.

Following a bench trial, the trial court found by clear and convincing evidence that Mother had committed three statutory grounds for termination and that termination was in the best interests of Child. See Tex. Fam.Code Ann. § 161.001(b)(1)(D), (E), (N)

, (b)(2) (West, Westlaw through 2015 R.S.). Mother asserts in a single issue on appeal that the evidence was legally and factually insufficient to support the trial court's judgment.

II. Standard of Review and Applicable Law

The natural right between a parent and her child is of constitutional dimensions, and courts strictly scrutinize proceedings to terminate that right. In re K.M.L., 443 S.W.3d 101, 112 (Tex.2014)

. Because of the magnitude of the right at issue, due process requires that courts apply the clear and convincing standard of proof to termination proceedings. Id. ; In re J.F.C., 96 S.W.3d 256, 263 (Tex.2002). The Texas Family Code defines clear and convincing evidence as “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, Westlaw through 2015 R.S.).

The clear-and-convincing standard heightens a court's review of the legal and factual sufficiency of the evidence. Determining whether the evidence is legally sufficient under this standard requires us to look “at 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 re J.F.C., 96 S.W.3d at 266

. This review requires us to assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. As a corollary, we must disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. “This does not mean we must disregard all evidence that does not support the finding, but if we determine that no reasonable fact finder could have formed a firm belief or conviction that the matter to be proven is true, then the evidence is legally insufficient.” In re L.J.N., 329 S.W.3d 667, 671 (Tex.App.—Corpus Christi 2010, no pet.).

In a factual sufficiency review, the reviewing court asks “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 J.F.C., 96 S.W.3d at 266

(quoting In re C.H., 89 S.W.3d 17, 25 (Tex.2002) ). The distinction with a legal sufficiency review is that courts consider whether the disputed evidence is such that a reasonable factfinder could not have...