Opinion
No. 04-06-00562-CV.
Delivered and Filed: May 9, 2007.
Appealed from the 408th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-PA-01851, Honorable John D. Gabriel, Jr., Judge Presiding.
Sitting: PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice.
Opinion by: PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
AFFIRMED
Jenia K. Silver appeals the trial court's judgment terminating her parental rights to her infant daughter, B.G.S., asserting that the evidence is factually insufficient to establish that: (1) she constructively abandoned B.G.S.; (2) she has a mental disability rendering her incapable of caring for B.G.S.; and (3) termination is in the best interest of B.G.S. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.
Analysis
To terminate a parent's right to her child, the Texas Department of Family and Protective Services ("the Department") must prove and the trial court must find by clear and convincing evidence both of the following statutory requirements: (1) that the parent has engaged in one of the statutory grounds for termination; and (2) that termination is in the child's best interest. Tex. Fam. Code. Ann. § 161.001, § 161.003 (Vernon Supp. 2006 Vernon 2002); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). In reviewing termination findings, we must determine 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 at 25.
After the jury returned its verdict terminating Silver's parental rights, the trial court found the following two statutory grounds in support of termination: (1) constructive abandonment of a child; and (2) inability to care for a child due to a mental or emotional illness or a mental deficiency rendering the parent unable to care for the child until the child's 18th birthday. In addition, the trial court found termination was in the best interest of B.G.S.
Constructive Abandonment
To terminate the parent-child relationship on the ground of constructive abandonment, clear and convincing evidence must establish that the child has been in the custody of the Department for at least six months and: (1) the Department has made reasonable efforts to return the child to the parent; (2) the parent has not regularly visited or maintained significant contact with the child; and (3) the parent has demonstrated an inability to provide the child with a safe environment. Tex. Fam. Code Ann. § 161.001(1)(N). The Department removed B.G.S. from Silver's care shortly after her birth on September 1, 2005 because of an open case involving Silver's second son. Silver argues that she could not have abandoned her child because the baby was taken from her at the hospital on or about September 4, 2005 and never returned to her; therefore, she was never given an opportunity to demonstrate her ability, or lack thereof, to provide B.G.S. with a safe environment. Silver does not contest the fact that the Department made reasonable efforts to return the child to her.
At trial, Sandra Jenkins, a Department caseworker assigned to B.G.S.'s case, testified that the Department presented Silver with a family service plan designed to reunify Silver with B.G.S.; Silver signed the service plan and was told that her parental rights could be terminated if she did not comply with the plan. Jenkins also stated that Silver had been given service plans in the past for her sons, and at that time opted to choose her own service providers, but never did. All of the services offered by the Department were free to Silver. The current plan required Silver to attend parenting classes, an anger management program, individual counseling, nutrition classes, and empowerment classes; she was also required to undergo a psychological and psychiatric evaluation and follow doctor's recommendations, including taking medication, if prescribed. Additionally, Silver was required to maintain a safe home environment and stable employment and to maintain contact with her caseworker. Silver successfully completed the parenting and empowerment classes. She also underwent the psychological evaluation, and attended five sessions with a psychologist, but did not follow the doctor's recommendations, including refusing to take prescribed medication for her mental illness. She failed to complete the other requirements of the service plan, and also failed to maintain a stable home or employment.
Jenkins further testified that although she believed Silver "genuinely loved her child," she did not maintain consistent contact with B.G.S. and that Silver only attended about half of her visits with B.G.S., some of which she missed because she had overslept. The Department allowed Silver to visit with B.G.S. twice a month for two hours. At the time of trial in August 2006, Silver had visited with B.G.S. nine times since September 2005. Silver had moved to Las Vegas at the end of May 2006 and had not seen B.G.S. since; she was not present at trial. Jenkins noted that at many of the visits, Silver would spend time talking to her caseworker and complaining that she was a victim and was not being protected; she did not want to discuss the service plan and what she needed to do to get her child back.
Melissa Kennedy, a chemical dependency counselor, testified that Silver attended an out-patient drug treatment program on April 19, 2006. Silver admitted a history of polysubstance abuse, including use of marijuana, alcohol, cocaine, LSD, and Ecstacy. Silver did not return for further treatment. Nelda Ellerbee, Silver's mother, testified that Silver moved to Las Vegas in May 2006 to find work as an exotic dancer. Ellerbee last spoke to her daughter two weeks before trial when Silver called her from Las Vegas; Silver was evicted from her apartment and did not have any money, a job, or a place to live. Ellerbee has custody of Silver's two year-old son and is in the process of adopting him. Ellerbee stated that she does not think Silver is able to care for B.G.S. at this time.
In light of the aforementioned testimony, we hold that the record contains sufficient evidence to support the trial court's finding that Silver constructively abandoned her child. See In the Interest of J.J.O., 131 S.W.3d 618, 628-29 (Tex.App.-Fort Worth 2004, no pet.) (holding evidence sufficient to support finding of constructive abandonment where mother did not regularly visit or maintain contact with child during nine-month service plan and where mother missed several visits, was late for others, and went three months without visiting child); see also In the Interest of H.R., 87 S.W.3d 691, 699 (Tex.App.-San Antonio 2002, no pet.) (holding evidence sufficient to support finding that mother constructively abandoned child where mother failed to fulfill requirements of court-ordered service plan to regain custody of child and rarely visited child). Accordingly, Silver's issue is overruled.
Mental Illness
Silver next contends the evidence is insufficient to terminate her parental rights to B.G.S. under section 161.003(a) of the Family Code. Termination of the parent-child relationship is permitted under section 161.003(a) 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). Silver contends that the evidence introduced at trial was factually insufficient to support a finding that she had a mental disability, that the alleged mental disability rendered her incapable of caring for B.G.S., and that the alleged disability would persist until the child's 18th birthday. We disagree.
John Bateman, Ph.D., a clinical psychologist who administered a psychological evaluation to Silver and met with her five times, also testified at the termination proceeding. Bateman stated that Silver suffers from bipolar disorder with moderate manic episodes and borderline personality disorder with antisocial and narcissistic tendencies. Bateman testified that bipolar disorder severely affects a patient's ability to function without medication; that medication is required to give the patient clarity, and to help change the patient's behavior to make their environment safer for themselves and for others. Bateman stated that although Silver's bipolar condition is highly treatable with medication, Silver refused to take medication and Bateman was never able to observe Silver in a medicated state. Bateman testified that Silver often arrived to sessions forty-five minutes late and did not complete her assigned homework. Silver was defensive and aggressive; she filed a complaint against Bateman with the State Board of Psychologists regarding his "ability to be therapeutic with her." Although Bateman impressed upon her the importance of taking medication for her bipolar disorder at every session, Silver did not take her medication and became angry when Bateman asked her why she was not taking her medication. Silver admitted to Bateman that she used cocaine in the previous three weeks. Bateman described Silver's thinking as illogical, disorganized, and irrational, and stated that she had no ability to make proper decisions using her judgment. It was clear to Bateman that Silver saw herself as a victim and she never mentioned her children during their sessions. Bateman did not believe that Silver is able to care for B.G.S. and noted in his report that Silver is "not emotionally or mentally stable enough at the present time to provide a stable and safe environment for her child." Ellerbee further testified that Silver was diagnosed with bipolar disorder at age 14 and began taking medication, but stopped taking it two years later. Ellerbee stated that she was concerned about Silver's mental capacity and recounted that within the last year, Silver left a dog in her apartment for two and a half weeks without food or water. Caprice Kelly, a mental health therapist, testified that Silver attended four out of six required group anger management classes and appeared to have a mental illness marked by paranoia and delusions. During her last session, Silver became agitated and thought the other group members were threatening her life. Caseworker Jenkins stated that she was most concerned with Silver's mental health; she also doubted Silver's ability to normalize her behavior with medication, given that after each of Silver's three children were born she stated she would take medication, but never did. Silver also told Jenkins that taking medication was against her civil rights.
The evidence overwhelmingly established that Silver suffers from a mental illness. In fact, during closing argument, Silver's counsel stated that "there's no doubt from all the evidence that Ms. Silver has a mental illness." However, mental illness of a parent is not, in and of itself, grounds for termination of the parent-child relationship. See Carter v. Dallas County Child Welfare Unit, 532 S.W.2d 140, 141-42 (Tex.Civ.App.-Dallas 1975, no writ). The issue is whether the mental illness renders Silver unable to provide for B.G.S. now and, with reasonable probability, until her 18th birthday. See Salas v. Tex. Dep't of Protective and Regulatory Services, 71 S.W.3d 783, 790 (Tex.App. — El Paso 2002, no pet.) (section 161.003 does not require "scientific certainty" that parent's mental illness will continue until child is 18; it only requires "reasonable probability"). Bateman testified that bipolar disorder can be controlled with medication, but that Silver did not follow his recommendations and refused to take medication. Ellerbee testified that Silver stopped taking medication for her bipolar disorder at the age of 16. Jenkins similarly testified that Silver promised to take her medication after each of her children were born, but never did.
Given Silver's refusal to control her bipolar disorder with medication, we hold there was sufficient evidence to support the trial court's findings under section 161.003(a). Silver had refused to take medication since her first son was born, and had not shown any willingness to control her condition in the following years. See In the Interest of B.L.M., 114 S.W.3d 641, 645-47 (Tex.App.-Fort Worth 2003, no pet.) (holding evidence was sufficient to support trial court's finding that father's mental illness rendered him unable to care for his children until they reached the age of 18 where psychologist testified that father suffered from paranoid schizophrenia, that schizophrenia was a prolonged illness, that consistent treatment and medication was essential to stabilize the disease, and that the unpredictability of the disease put the children at risk, and where father testified that he would never take medication for his illness in future); see also Sawyer v. Tex. Dep't of Protective and Regulatory Services, No. 03-02-00286-CV, 2003 WL 549216, at *8 (Tex.App.-Austin Feb. 27, 2003, no pet.) (holding evidence supported finding that mother constructively abandoned her children where she failed to take prescribed medications for her mental health conditions that would enable her to comply with the responsibilities of parenthood). Accordingly, Silver's issue is overruled.
Best Interest of Child
Finally, Silver argues that the evidence introduced at trial was factually insufficient to support a finding that termination of her parental rights was in the best interest of B.G.S. In evaluating whether termination would be in the best interest of the child, the trial court may consider many factors, including: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re D.G., 5 S.W.3d 769, 772 (Tex.App.-San Antonio 1999, no pet.).
Here, B.G.S. was too young to have a stated desire with regard to her mother. See In re D.G., 5 S.W.3d at 772. As an infant, B.G.S. has special emotional and physical needs that Silver cannot meet while unmedicated. At the time of the termination trial, Silver had moved to Las Vegas and had not seen B.G.S. in over two months and had no plans to return to San Antonio. Ellerbee testified that Silver had recently been evicted from her apartment and did not have a place to live or any money. Considering the entire record, we hold that the evidence is sufficient for the trial court to have reasonably formed a firm belief or conviction that termination of Silver's parental rights was in the best interest of B.G.S. Silver's issue is overruled.
Based on the foregoing reasons, the trial court's judgment is affirmed.