Opinion
NO. 02-16-00091-CV
07-21-2016
IN THE INTEREST OF L.W., A CHILD
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-100660-14 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant P.M. (Mother) appeals from a final order appointing Appellee Department of Family and Protective Services (DFPS) permanent managing conservator of her son, L.W. We will affirm.
Mother has four children, ages thirteen, nine, six, and seventeen months. L.W. is the youngest.
Mother is diagnosed with paranoid schizophrenia. Father is also schizophrenic. Mother and Father are not married, but they are friends and help each other.
Mother experienced her first psychotic episode at age twenty-four. At the time of trial, at age thirty-one, she had suffered several other episodes, including one in 2012 and another in 2013, each of which led to DFPS taking possession of her three oldest children for a period of time. Mother had another episode in August 2014, DFPS once again took possession of her three oldest children, and she gave birth to L.W. while she was admitted at JPS Trinity Springs, a psychiatric hospital. DFPS consequently filed a petition for protection of L.W., for conservatorship, and for termination in suit affecting the parent-child relationship regarding L.W. The trial court named DFPS temporary managing conservator of L.W., and DFPS entered into a family service plan with Mother.
Mother's three oldest children were placed with her sister—"the plan being that [Mother] could then still have a relationship with them but they would be cared for by another adult"—and in March 2015, under a similar arrangement, L.W. was placed with his paternal great aunt, S.J. L.W. attended visits with his Mother, Father, and siblings during the pendency of the suit, and S.J. intended that L.W. would continue to maintain a relationship with his family members if she remained L.W.'s possessory conservator after trial.
In February 2016, the trial court conducted a final bench trial on DFPS's petition to be named L.W.'s permanent managing conservator and Mother's competing motion for a monitored return. The trial court found that appointing one or both of L.W.'s parents as managing conservator would not be in L.W.'s best interest because the appointment would "significantly impair the child's physical health or emotional development." It signed an order appointing DFPS permanent managing conservator and S.J. possessory conservator of L.W.
DFPS did not seek to terminate Mother's parental rights to L.W at trial.
In her interrelated first and second points, Mother argues that the trial court abused its discretion by failing to appoint her either sole or joint managing conservator of L.W. because DFPS presented legally and factually insufficient evidence to rebut the presumption that the best interest of a child is served by awarding custody to the parent. See Tex. Fam. Code Ann. § 153.131 (West 2014). DFPS responds that it presented ample evidence to rebut the parental presumption.
We review a trial court's conservatorship determination for an abuse of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). A trial court abuses its discretion if the court acts without reference to any guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).
Legal and factual sufficiency are not independent grounds of error in conservatorship cases but are relevant factors in deciding whether an abuse of discretion occurred.In re W.M., 172 S.W.3d 718, 725 (Tex. App.—Fort Worth 2005, no pet.). To determine whether the trial court abused its discretion because the evidence was insufficient to support its decision, we consider whether the trial court (1) had sufficient evidence upon which to exercise its discretion and (2) erred in its exercise of that discretion. In re B.P., Jr., No. 02-07-00251-CV, 2008 WL 2639264, at *2 (Tex. App.—Fort Worth July 3, 2008, no pet.) (mem. op.). We conduct the applicable sufficiency review with regard to the first question. Id. We then determine whether, based on the elicited evidence, the trial court made a reasonable decision.Id.
Therefore, unlike Mother, we do not segregate our sufficiency and abuse-of-discretion analyses.
We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
A court's primary consideration in determining the issue of conservatorship must always be the best interest of the child. Tex. Fam. Code Ann. § 153.002 (West 2014). There is a strong presumption that the best interest of a child is served by appointing a parent a managing conservator. Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990); see Tex. Fam. Code Ann. § 153.131. However, the presumption may be rebutted by showing that appointment of a parent as a managing conservator would not be in the child's best interest because the appointment "would significantly impair the child's physical health or emotional development." Tex. Fam. Code Ann. § 153.131(a). Family code section 263.404(a) utilizes the same standard for determining when the "court may render a final order appointing [DFPS] as managing conservator of the child without terminating the rights of the parent of the child," as happened in this case. Id. § 263.404(a) (West Supp. 2015) (providing that such an order is permitted when "appointment of a parent as managing conservator would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development").
Impairment must be proved by a preponderance of the evidence indicating that some specific, identifiable behavior or conduct of the parent, demonstrated by specific acts or omissions of the parent, will probably cause that harm. Lewelling, 796 S.W.2d at 167. Acts or omissions that constitute significant impairment include, but are not limited to, physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral behavior by the parent. In reDe La Pena, 999 S.W.2d 521, 528 (Tex. App.—El Paso 1999, no pet.). While evidence of past misconduct alone may not be sufficient to show present unfitness, "we recognize that an adult's future conduct may be somewhat determined by recent past conduct." Id.
The record leaves no doubt that DFPS's primary concern with Mother is her schizophrenia. In 2012, Mother was discovered in the upstairs bedroom of a stranger's house. Mother's three children were with her, and when the police arrived, they were unable to communicate with her. Authorities determined that Mother had experienced a psychotic break, and the children were placed in foster care.
Mother acknowledged that the 2012 episode was the result of a "mental breakdown."
In January 2013, soon after the children were returned to Mother, DFPS received a report that she had suffered another psychotic episode—she was hallucinating, hearing voices, and threatening the children, whom she claimed were possessed by demons. The children were returned to foster care.
A DFPS affidavit stated that Mother would not allow the children to eat and that she made them drink from their cupped hands.
Mother placed the blame for the 2013 episode on a lady who lived around the corner and who "started offering [her] all these different kinds of pills" because Mother's hip hurt.
The children were returned to Mother in May 2014, but this time, she had the support of several women from church, and her oldest child learned how to use the telephone so that she could call for help if necessary. Nevertheless, soon thereafter, Mother suffered another psychotic episode. Her oldest child called one of the women from church, who found Mother in her bedroom with her three children, whom she would not allow off of the bed. The house smelled of urine, there was a hole in the wall, and it looked like the children had been urinating in a bucket. Mother was admitted to JPS Trinity Springs. She had another psychotic episode at the hospital when L.W. was born.
Gladys Demus, Mother's caseworker, expressed concern about what she described was a recurring pattern involving Mother's mental health: Mother does well and does not experience any episodes when the children are in foster care, but when they are returned to her, she has a psychotic break. Demus was specifically concerned for L.W.'s well-being because he is a baby and "can't pick up the phone and call anyone like the other children could." Demus opined that Mother does not have the ability to self-report, and she was unsure if Mother was compliant with her medication; sometimes she thinks Mother is compliant and other times she does not. After her episode in August 2014, Mother admitted that she had not been taking her medication. Demus also recalled that when Mother was admitted at JPS Trinity Springs, she did not understand why she was there. Overall, Demus was concerned with Mother's "inability to manage her mental health."
Mother testified that her psychiatrist had told her to stop taking her medication.
Vance Marshall of MHMR Arlington counseled Mother for four years. He testified that he had no concern with Mother not taking her medications, but he also opined that Mother's illness is "not very predictable" and that medication is no guarantee that she will not experience a psychotic episode. He said that he would be concerned if Mother had acknowledged not taking her medication and if she had an episode when anyone, including an infant, was around her.
Amanda Spharler, the CASA representative, did not recommend a monitored return of L.W. to Mother because she was concerned that Mother did not have her mental health issues under control.
In In re L.D.F., the court of appeals looked in part to evidence of appellant's bipolar disorder and related hospitalization five times in five years to support the "significant impairment" requirement, reasoning:
The Court is sensitive to the issues surrounding mental health in the family law context, and we recognize that a parent's mental illness diagnosis alone does not necessarily demonstrate that a child's physical health or emotional development will be significantly impaired by parental custody. However, we also recognize that "the trial court is in the best position to observe the witnesses and 'feel' the forces, powers, and influences that cannot be discerned by merely reading the record[,]" and therefore defer to its assessments, particularly in mental health cases, where those findings are not an abuse of discretion.445 S.W.3d 823, 831 (Tex. App.—El Paso 2014, no pet.) (citations omitted). We certainly agree that a mental-illness diagnosis alone may be insufficient to demonstrate significant impairment, but the record here contains evidence of much more than a mere diagnosis; as to Mother, there is evidence of multiple involuntary hospitalizations, noncompliance with medication, a lack of personal insight into her illness and behavior, and endangering conduct on several occasions. Mother points out that she takes her medication, sees a psychiatrist, and can recognize the stressors that lead to a psychotic episode, but her multiple psychotic episodes have occurred notwithstanding those purported preemptive measures.
Our opinion in In re S.T., No. 02-15-00203-CV, 2015 WL 9244913, at *12 (Tex. App.—Fort Worth Dec. 17, 2015, no pet.), upon which Mother relies, is therefore inapposite. --------
In addition to the concerns about Mother's mental health, Demus expressed concern that Mother and Father were using illegal drugs. Mother and Father tested positive for cocaine at one point during the case, and on another occasion, Father smelled of marijuana, but when Demus asked for a drug test, "all of [a] sudden they had somewhere that they needed to be." At a visit between Mother and her children, Spharler recalled that Mother appeared impaired:
Her eyes were bloodshot and constricted. She had difficulty walking and speaking and when I handed her my card, I laid it on the table, and [she] had great difficulty lifting my card off the table. She also appeared to have difficulty [focusing] on our conversation, making eye contact. She also had difficulty responding to one of her children [who] was at the visit with her who was asking to be fed.
We conclude that all of these specific acts and behaviors could have reasonably convinced the trial court that the placement of L.W. with Mother was not in L.W.'s best interest because it would significantly impair L.W.'s physical health or emotional development. See Tex. Fam. Code Ann. §§ 153.131(a), 263.404(a); Lewelling, 796 S.W.2d at 167. The trial court therefore had sufficient evidence upon which to exercise its discretion. Because the evidence is sufficient to support the trial court's significant impairment finding, we hold that the trial court did not abuse its discretion by not appointing Mother either sole or joint managing conservator of L.W. We overrule Mother's first and second points and affirm the trial court's final order appointing DFPS permanent managing conservator of L.W.
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: GARDNER, WALKER, and MEIER, JJ. DELIVERED: July 21, 2016