in the Interest of B. W. ( 2004 )

Affirmed and Memorandum Opinion filed December 2, 2004

Affirmed and Memorandum Opinion filed December 2, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-00068-CV

_______________

IN THE INTEREST OF B.W.

__________________________________________________

On Appeal from the 328th District Court

Fort Bend County, Texas

Trial Court Cause No. 01-CV-118864

__________________________________________________

M E M O R A N D U M O P I N I O N

E.W. appeals the termination of her parental rights with regard to her daughter, B.W. (the Achild@)^[1], on numerous grounds.  We affirm.

                                                      Sufficiency of the Evidence

E.W.=s fourth and fifth issues challenge the legal and factual sufficiency of the evidence to support the trial court=s findings that: (1) she has a mental or emotional illness that renders her unable to provide for the physical, emotional, and mental needs of the child; (2) the illness or deficiency, in all reasonable probability, will continue to render her unable to provide for the child=s needs until her 18^th birthday; (3) the Department of Protective and Regulatory Services (the Adepartment@) has been the temporary or sole managing conservator of the child for at least six months preceding the date of the termination hearing;^[2] (4) the department has made reasonable efforts to return the child to E.W.; and (5) termination was in the best interest of the child.  See Tex. Fam. Code Ann. ' 161.003(a) (Vernon 2002).

                                                             Standard of Review

The conditions required for termination of a parent-child relationship must be established by clear and convincing evidence. Tex. Fam. Code Ann. ' 161.001 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).  Clear and convincing evidence is 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 proved.  Tex. Fam. Code Ann. ' 101.007 (Vernon 2002); J.F.C., 96 S.W.3d at 264.

When reviewing legal sufficiency where the underlying burden of proof is clear and convincing evidence, we look at all of the evidence in the light most favorable to the finding to determine whether the fact finder could have formed a firm belief or conviction that the finding was true. J.F.C., 96 S.W.3d at 266. In doing so, we: (1) assume the fact finder resolved disputed fact issues in favor of its finding if a reasonable fact finder could do so; (2) disregard all evidence that a reasonable fact finder could have disbelieved or found to have been incredible; but (3) do not disregard undisputed facts that do not support the finding.  Id.  Based on this review, if no reasonable fact finder could form a firm belief or conviction that the matter required to be proven is true, then the evidence is legally insufficient.  Id.

In conducting a factual sufficiency review of evidence under the clear and convincing standard, we: (1) give due consideration to evidence the fact finder could reasonably have found to be clear and convincing; and (2) consider whether the disputed evidence is such that a reasonable fact finder could not have resolved that evidence in favor of the finding.  Id. If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have resolved in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.  Id.

                                Illness and Inability to Provide for the Child=s Needs

E.W.=s brief acknowledges that she has: (1) a history of mental illness, including depression and bipolar disorder, that will require lifelong treatment; (2) been hospitalized for it numerous times; and (3) has attempted suicide four times and has had many other suicide threats, including two since this case began. The record further reflects that despite knowing the importance, for herself and her children, of staying on her medication for this condition, she often neglected to do so, but repeatedly used marijuana and cocaine, both during her pregnancy with the child and during the period of department intervention.

Unable to maintain a residence, E.W. has moved about among shelters, treatment centers, and other locations.  In this regard, E.W. testified that, just prior to and after the child=s birth, she lived in at least twenty different places, including her car and with people whose names she did not remember.  E.W. testified that at the time she began her relationship with the man with whom she was living at the time of trial, she was still married to the child=s father, but living with a different boyfriend.

E.W. was also not able to hold a job or provide for herself financially.  In 2001, she: (1) worked at a Wal-Mart store; (2) worked as a live-in nanny for a family with two children; (3) cleaned two houses; and (4) took a neighbor to medical appointments and ran errands for her.  In 2002, she: (1) worked at a McDonald=s restaurant from January to March, then quit that job; (2) was unemployed until August; (3) worked two weeks for ICM Telemarketing; (4) returned to McDonald=s until October; and (5) was again unemployed through the time of trial.

The evidence further reflects depressive periods in which E.W. slept all day, getting up only to change the child=s diapers and feed her.  There were also instances in which E.W. became angry with the child=s crying and would curse her, call her names, and jerk or slap the child.  E.W. admitted that she was afraid that she would hurt the child if she was not on her medication, yet sometimes just voluntarily went off it. E.W. also admitted putting the child in a closet, strapped into a car seat, when she became frustrated with her, and that it is not easy for her to stay sober in stressful situations.  A department caseworker testified that E.W. referred to the child as a Abitch@ and that E.W.=s behavior interfered with her ability to visit with the child.  E.W. stated numerous times that if the child were returned to her, she would leave Texas and never talk to another therapist again.  One of the doctors from whom E.W. received counseling testified that, in her opinion, E.W.=s parental rights should be terminated because of her mental illness for which the doctor had seen no signs of improvement.  This was the first time in seventy-five such cases the doctor had recommended termination.  The guardian ad litem and department caseworker also recommended termination. This evidence was legally sufficient to support the trial court=s mental illness and inability findings.

In challenging the factual sufficiency of the evidence to support termination on this ground, E.W. essentially asserts that: (1) she is able to provide for the needs of the child when she is treated; (2) she had sought, and was receiving, appropriate care for her illness; and (3) she had provided adequate care for the child during the seven months she had her. However, the portions of the record she cites to support these assertions so completely fail to do so that it is not even apparent which information therein she is even relying on. Even viewed in the light most favorable to E.W., the record reflects, at most, sporadic periods in which the turmoil in E.W.=s life briefly subsided somewhat, but in no way diminishes the fact or effects of her illness or her continuing failure and inability to provide for the needs of the child.

                                                     Reasonable Efforts to Return

Similarly, the trial court=s finding that the department made reasonable efforts to return the child to E.W. was based on the department=s service plan and its progress reports on E.W.=s compliance with the court=s temporary orders and the service plan.  In this regard, the actions to be completed by E.W. included: (1) participating in supervised visitations; (2) paying $10 per month child support; (3) releasing medical records; (4) completing psychological and psychiatric evaluations; (5) attending counseling; (6) undergoing a drug/alcohol assessment, following any recommendations from this assessment, and submitting to random tests; and (7) establishing safe and stable housing, stable employment, and appropriate child care prior to reunification.  The department=s final progress report summarized that, after thirteen months since the child=s removal from E.W.=s home, E.W. did not have stable housing or employment, continued to use drugs despite knowing it could affect reunification with the child, refused to comply with drug treatment programs, and appeared mentally unstable.  This evidence was legally sufficient to support the trial court=s finding of reasonable efforts by the department to return the child.

In challenging the factual sufficiency of this finding, E.W. asserts that the visitations were inconvenient, and the department refused to allow E.W. to enter a treatment facility where she could take the child with her.  However, even if true, these considerations do not render the department=s efforts unreasonable. E.W. also contends that, even though she had established a home and become regularly employed, the department did not visit her home or place of employment.  On the contrary, however, as outlined above, the record reflects no such lasting or stable employment or any likelihood of it in the future.  In addition, the most stable residence E.W. cited was sharing an apartment for several months with a boyfriend with whom E.W. would not even allow the child=s guardian ad litem to speak.

Lastly, E.W. argues that the department failed to consider an arrangement whereby a relative would be permanent managing conservator of the child and E.W. would maintain a possessory conservator relationship with her.  However, E.W.=s brief cites no portion of the record reflecting that any such willing relative existed or that this alternative was otherwise a possibility. Instead, E.W. testified that her support system consisted of: (1) the man with whom she lived; (2) several aunts, none of whom lived in the immediate area; (3) other single mothers with whom she had worked at McDonald=s; and (4) an ex-boyfriend=s girlfriend. There is, thus, no basis to sustain E.W.=s challenge to the factual sufficiency of the evidence that the department made reasonable efforts to return the child to her.

                                                                   Best Interest

Factors that a court should consider in determining the best interest of a child include such things as: (1) the child=s emotional and physical needs now and in the future; (2) the emotional and physical danger to the child now and in the future; (3) the parental abilities of the individuals seeking custody; (4) the plans for the child by the individuals seeking custody; (5) the stability of the home or proposed placement; (6) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (7) any excuse for the acts or omissions of the parent.  Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also Tex. Fam. Code Ann. ' 263.307 (Vernon 2002) (listing thirteen factors for determining a parent=s willingness and ability to provide a safe environment).

The evidence outlined in the preceding sections, supporting the termination of E.W.=s parental rights, is also probative of the trial court=s finding that the termination is in the child=s best interest based on the foregoing factors.  See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).  In addition, the department case worker testified that the child is confused and reaching an age where she needs to know she will stay in one place; and that putting her through further confusion will affect her emotionally and developmentally.  Moreover, the child=s foster, and prospective adoptive, parent testified that: (1) she and her husband had been married nearly three years, both were raised in the area where they currently lived, and they had many friends and family members nearby; (2) they both had stable jobs; (3) she worked at a day care facility where she was receiving training, and was working toward a bachelor=s degree in early childhood development; and (4) she and her husband were licensed through the department and a home study had been conducted on them.  This evidence is legally sufficient to support the trial court=s best interest finding.

The evidence not supporting the best interest finding includes: (1) the testimony of the child=s foster mother and the department caseworker that E.W. and the child shared an attachment; (2) the lack of records that the child was ever not well fed or taken care of; and (3) the attorney ad litem=s recommendation against termination.  However, despite this evidence, a fact-finder could reasonably form a firm belief or conviction that termination was in the child=s best interest.  Therefore, E.W.=s fourth and fifth issues fail to demonstrate that the evidence was legally or factually insufficient to support the trial court=s findings on termination and, accordingly, are overruled.^[3]

                                                                     Jury Trial

E.W.=s sixth issue argues that the trial court violated her rights under the Fourteenth Amendment to the United States Constitution by conducting a bench trial on the issue of termination without an express waiver of her right to a trial by jury. E.W. also claims that because this case is more like a criminal case than a civil case, the same requirement of an express waiver of jury trial that applies to criminal cases should be applied here.

Under the procedural rules governing a suit affecting a parent-child relationship, a jury is not required, but may, with exceptions not applicable here, be demanded.  Tex. Fam. Code Ann. ' 105.002(a) (Vernon Supp. 2004-05).  In addition, except as otherwise provided in Title 5 of the Texas Family Code, proceedings in such suits are as in civil cases generally.  Id. ' 105.003(a) (Vernon 2002).  In civil cases, a jury trial is required only if a written request is filed at least thirty days before the date set for trial.  See Tex. R. Civ. P. 216(a).  E.W. cites no legal authority that such rules and procedure are unconstitutional. Because it is undisputed that her request for a jury trial was not timely, E.W.=s sixth issue affords no basis for relief and is overruled.

                                                Ineffective Assistance of Counsel

E.W.=s seventh issue contends that her trial counsel was ineffective because he failed to timely demand a jury trial.  The statutory right to counsel in parental-rights termination cases embodies the same right to effective assistance of counsel as is applied in criminal cases.  In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003).  Under that standard, to establish ineffective assistance, an appellant must show that: (1) counsel=s performance was deficient, i.e., it fell below an objective standard of reasonableness, and (2) the appellant was prejudiced in that there is a reasonable probability that but for counsel=s errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687 (1984).  A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances.  Strickland, 466 U.S. at 689.

In this case, E.W. claims that her counsel=s Aduty to take any reasonable steps necessary to oppose the termination@ of her parental rights included requesting a jury trial.  However, she neither cites authority so providing, nor explains how the presumption of sound trial strategy would be overcome with regard to a decision whether to present a case to a judge or jury.  Nor does she attempt to show a reasonable probability that the result of the proceeding would have been different if it had been decided by a jury rather than a judge.  Because E.W.=s seventh issue thus fails to establish ineffective assistance of counsel, it is overruled.

                                                         Admission of Evidence

E.W.=s eighth issue asserts that the trial court erred in admitting business records and testimony based on them because they contained inadmissible hearsay and unreliable expert opinions and were not shown to be based on personal knowledge. E.W.=s ninth issue contends that the trial court erred by excluding evidence that: (1) it would be a hardship on the child if her adoptive parents divorced; (2) it could negatively impact the child if E.W.=s parental rights were terminated and the child later learned that E.W. was able to raise the child=s sibling; (3) the loss of contact between the child and her sibling could not be made up; and (4) a drug habit is hard to overcome and that many parents with drug problems are still fit to raise children.

To reverse a judgment based on a claimed error in admitting or excluding evidence, a party must ordinarily show that the judgment turns on the evidence admitted or excluded.  See Interstate Northborough P=ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).  In this case, apart from challenging the rulings on the admissibility of this evidence, E.W.=s eighth and ninth issues each summarily conclude that the admission of the evidence probably resulted in the rendition of an incorrect judgment without providing any elaboration whatever to support that assertion.  Because they therefore afford no basis for relief, E.W.=s eighth and ninth issues are overruled.  Accordingly, the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed December 2, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

---

^[1]           The child was born in November of 2000, and the termination order was entered in December of 2002.

^[2]           Although E.W.=s fourth issue recites this element, the body of her brief provides no support for any challenge to the evidence establishing the department=s conservatorship of the child for the requisite time period.  Therefore, this element of her fourth issue presents nothing for our review.

^[3]           Because we conclude that the evidence supporting termination on the mental illness ground is sufficient, we need not address E.W.=s challenges to the evidence supporting the alternative grounds for termination in her first through third issues.