in the Interest of A.L., E.G., C.S. and B.S. ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00090-CV
____________________
IN THE INTEREST OF A.L., E.G., C.S., AND B.S.
_______________________________________________________ ______________
On Appeal from the 163rd District Court
Orange County, Texas
Trial Cause No. B-120756-D
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MEMORANDUM OPINION
In this parental-rights termination case, a jury found that Mother’s parent-
child relationships to her children, A.L., E.G., C.S., and B.S., should be
terminated.1 See Tex. Fam. Code Ann. §§ 161.001 (1)(D), (E), (O), (2), 161.003(a)
(West 2014). The trial court’s judgment terminates Mother’s parent-child
relationship to her four children.2
1
We identify the minors by their initials to protect their identities. See Tex.
R. App. P. 9.8. Other family members are identified, as necessary, based on their
respective relationships to the specific child who is being discussed.
2
The trial court also terminated the parental rights of the respective fathers of
E.G., C.S., and B.S.; however, their respective fathers did not appeal.
1
In her appeal, Mother challenges the legal and factual sufficiency of the
evidence supporting the trial court’s best interest findings on her three youngest
children, E.G., C.S., and B.S. Also, Mother complains that the trial court, over her
objection, admitted a report and the testimony of a psychologist. We affirm the
trial court’s judgment.
In reviewing legal sufficiency complaints that relate to orders terminating a
parent’s rights, we review all the evidence admitted in the trial “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 256, 266 (Tex. 2002). With respect to Mother’s factual sufficiency
argument, we “give due consideration to evidence that the factfinder could
reasonably have found to be clear and convincing.” Id. Under a factual sufficiency
standard, the findings the trial court made are sufficient unless, based on the entire
record, the disputed evidence that could not have been credited in favor of the
finding is so significant that the trial court could not have reasonably formed a firm
belief or conviction that the finding at issue was true. See id.
Several factors apply to reviewing a court’s decision to terminate a parent’s
relationship with a child. “[T]here is a strong presumption that the best interest of a
child is served by keeping the child with a parent.” In re R.R., 209 S.W.3d 112,
116 (Tex. 2006). Nevertheless, a prompt and permanent placement of the child in a
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safe environment is also presumed to be in the child’s best interest. Tex. Fam.
Code Ann. § 263.307(a) (West 2014). In reviewing the trial court’s best interest
findings, we consider:
(1) the child’s desires;
(2) the child’s emotional and physical needs now and in the future;
(3) any emotional and physical danger to the child now and in the future;
(4) the parental abilities of the parent that is seeking custody;
(5) the programs available to assist the parent who is seeking custody to
promote the best interest of the child;
(6) the plans for the child by the parent or the agency that seeks custody;
(7) the stability of the home or the proposed placement;
(8) the parent’s acts or omissions which may indicate that the existing
parent-child relationship is improper; and,
(9) any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see Tex. Fam. Code Ann. §
263.307(b) (West 2014).
Mother contends the evidence fails to sufficiently establish that she is
incapable of properly caring for the children or providing them a safe and
appropriate home environment. A.L., E.G., and C.S. were removed from the home
in August 2012. Mother tested positive for amphetamines and methamphetamines
on the date of an adversary hearing; over the following sixteen months, Mother
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was tested and failed seven drug tests. On twenty other occasions, Mother
presented a diluted sample or refused to submit to testing. Mother denied that she
took drugs, other than marijuana. To explain the positive tests, she claimed her
boyfriend slipped drugs into her food. Mother insisted that the test results in
evidence contain false results, although the test results were confirmed by hair
follicle testing. Additionally, Mother failed another drug test during her pregnancy
with B.S., who was born in August 2013. A few days after B.S. was born, B.S. was
removed from Mother’s care.
During the termination hearing, Mother’s thirteen-year-old daughter, A.L.,
gave testimony that sheds insight into the family environment. A.L. explained that
as a ten-year-old, she was usually responsible for feeding herself and her younger
sister because Mother slept most of the day. She also explained that she went
hungry at times when they did not have sufficient food for everyone. A.L.
explained that if she disturbed her mother while she slept, Mother hit and punched
her. According to A.L., Mother and her boyfriends fought, and, at times, they used
physical force against her.
There was also other testimony reflecting that the children faced potential
dangers while living in the environment that Mother provided. After taking
temporary custody of the children, the Department placed E.G. and C.S. with
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Grandmother.3 Before E.G. and C.S. were removed, Mother, A.L., and E.G. lived
with Grandmother while Mother was pregnant. Grandmother had these children
because Mother’s boyfriend had beaten her.
Other evidence admitted during the termination hearing shows that Mother
exhibited erratic behavior and acted in a hostile manner when interacting with the
Department’s employees. During the hearing, Mother admitted that she had made
threats to Department employees and to Grandmother. Mother also admitted that
she was experiencing mental health issues, but she attributed her problems to being
separated from her children. Mother testified that she had used profanity around
her children. The testimony indicates that although Mother was referred to
individual and anger management counseling through Family Services, she
attended these sessions sporadically. However, there is evidence in the record
showing that Mother completed a parenting class.
Additional evidence supporting the trial court’s judgment consists of the
testimony of a psychologist who examined Mother and performed a psychological
evaluation on her. The psychologist characterized Mother as mentally ill and
potentially dangerous; he stated that Mother was suffering from a “major
depressive disorder, recurrent, severe with psychotic features.” Although the
3
Grandmother is married to A.L.’s grandfather; she explained at the trial that
she is not biologically related to any of Mother’s children.
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psychologist stated that Mother had performed in the average range on intelligence
and achievement tests, he also noted that Mother appeared to be very distraught
and was unable to control herself emotionally. The psychologist expressed
significant concern about the frequency of Mother’s disputes with her boyfriends
as well as concern regarding her disputes with Department employees. The
psychologist expressed his opinion that Mother’s children could be in danger
because outbursts of anger “do not usually stop with one or two people.”
According to the psychologist, the violent nature of Mother’s relationships
potentially threatens the children.
The trial court’s judgment finds additional support in testimony from a
licensed professional counselor employed by Family Services of Southeast Texas.
The counselor testified that she provided Mother with individual counseling, group
anger management, and parenting classes. Mother saw the counselor in November
2012 when she had a psychosocial assessment, but then Mother failed to return
until April 2013. According to the counselor, Mother was often confused, did not
have a good grip on reality, believed the Department tampered with her drug tests,
and said that her own mother’s arrest for distributing methamphetamines was part
of a plot by the Department to take her children away from her. The counselor
explained that Mother told her that upon the Department’s removal of B.S., Mother
bit the case manager. The counselor testified that Mother admitted to her that she
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had threatened Department employees with physical violence. The counselor
indicated that Mother felt that her father, who had been released from prison, could
assist her in carrying out her threats. The counselor expressed her opinion that
Mother failed to take responsibility for her own actions, including her drug use.
The record indicates that Mother missed bi-weekly counseling sessions with her
counselor for six weeks at a time. In July 2013, Mother told the counselor that “she
had completed her anger management, and she was done.” The counselor’s
testimony as well as additional evidence shows that Mother self-terminated her
anger management and domestic abuse counseling.
Mother also testified during the termination hearing. According to Mother,
she planned to live with the children at her mother’s home. Mother also addressed
her prospects for earning a living. Although Mother stated that she had tried to find
a job at a neighboring restaurant, Mother never presented any other evidence that
she had any realistic prospect of employment. With respect to Mother’s claim that
she completed her classes, Mother did not produce a completion certificate for
these courses.
With respect to Mother’s plans, testimony reflects that a house that Mother
indicated was appropriate for her children was deemed inappropriate by the
Department because the house was used as a location for the distribution of
methamphetamine. After the children were removed, this house was inspected by a
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Department caseworker; the caseworker found that the windows to the home were
completely blacked out, the coffee table was littered with cigarette butts and
prescription bottles, dirty dishes filled the kitchen sink, and the rooms were
cluttered and unsanitary. The caseworker attempted to visit the home on several
other occasions; due to death threats that Mother made against Department
employees, the caseworker did not go visit the home again. The caseworker
concluded that, based upon Mother’s lack of cooperation with the family service
plan and her failure to maintain housing and an income, Mother would not be able
to raise four children in a safe and appropriate environment.
Other evidence was introduced showing the Department’s plan for the
children. The evidence shows that the Department wanted Grandmother and her
husband to adopt E.G., C.S., and B.S. Grandmother expressed a desire to adopt the
children. Also, according to Grandmother, E.G. wants to live with her and is
terrified of Mother.
When viewed in the light most favorable to the verdict, the jury’s decision
terminating Mother’s rights is a decision supported by clear and convincing
evidence. See J.F.C., 96 S.W.3d at 266. There was testimony that E.G. did not
want to live with Mother, and the evidence showed that C.S. and B.S. had been
placed with Grandmother in foster care for most of their lives. A.L.’s testimony
shows that Mother failed to adequately care for her, E.G., and C.S. As the
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factfinder, the jury could have reasonably chosen to reject Mother’s claim that she
never used methamphetamines as a claim that was not credible. The jury was also
entitled to accept the psychologist’s opinion that Mother is mentally ill and could
conclude that Mother presents a danger to her children. From the evidence, the jury
could reasonably conclude that Mother was unable to provide a safe and stable
home for her children, and decide that the placements of the children by the
Department provided the children with more safety and security. The evidence
before the jury, in our opinion, was sufficient to allow the jury to form a firm belief
or conviction that the best interest of each child was served by a decision to
terminate Mother’s parental rights.
Although some of the evidence in the record does not support the jury’s
verdict, it was all evidence the jury could have reasonably given little weight or
determined that it was not credible. See id. The jury could have chosen to reject
Mother’s explanations for her drug use, her claim that she could provide stable
housing, and her claim that she would obtain a job providing an income sufficient
to support her children. Because the evidence that weighs against the jury’s
findings is not so significant that the jury could not have reasonably formed a firm
belief or conviction that termination was in the best interest of each child, the
evidence, when viewed as a whole, provides legally and factually sufficient
support for the jury’s verdict. We overrule issue one.
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In her second issue, Mother contends that the trial court erred by admitting
the testimony and report of the psychologist who examined her. According to
Mother, the testimony by the psychologist and the admission of the report violate
Rule 510 of the Texas Rules of Evidence. Rule 510 provides that communications
between a patient and a professional is confidential and shall not be disclosed in a
civil case. See Tex. R. Evid. 510(b)(1).
In this case, the communications at issue occurred in a court-ordered
evaluation that related to Mother’s mental or emotional condition. The evidence
shows that Mother was informed that her communications with the psychologist
would not be privileged. See Tex. R. Evid. 510(d)(4). And, the evaluation of the
psychologist was relevant; it shows how Mother’s mental or emotional condition
impacts her abilities to parent, and it shows how Mother’s psychological condition
affected and would continue to affect the safety and welfare of the children. See
R.K. v. Ramirez, 887 S.W.2d 836, 843 (Tex. 1994) (the patient-litigant exception
applies when the records are relevant to the condition at issue and the patient’s
mental or emotional condition carries legal significance to a party’s claim or
defense); In re G.B., No. 07-01-0210-CV, 2003 WL 22327191, at **6-7 (Tex.
App.—Amarillo Oct. 10, 2003, no pet.) (mem. op.); see also Tex. R. Evid.
510(d)(5). Because Mother’s communications with the court-ordered psychologist
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were not privileged, we overrule issue two. Having overruled both of Mother’s
issues, we affirm the trial court’s judgment.
AFFIRMED.
________________________________
HOLLIS HORTON
Justice
Submitted on May 12, 2014
Opinion Delivered June 26, 2014
Before Kreger, Horton, and Johnson, JJ.
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