Summary
declining to review the trial court's temporary orders authorizing emergency removal after a final order of termination was entered
Summary of this case from In re K.S.Opinion
NO. 01-10-01148-CV NO. 01-10-01149-CV
05-03-2012
L.F., Appellant v. DEPARTMENT OF FAMILY & PROTECTIVE SERVICES, Appellee
On Appeal from the 311th Judicial District Court
Harris County, Texas
Trial Court Case Nos. 2008-53865, 2009-28149
MEMORANDUM OPINION
In this accelerated appeal, appellant, L.F., challenges the trial court's order, entered after a bench trial, terminating her parental rights to her two minor children. In seven of her sixteen issues, appellant contends that the evidence is legally and factually insufficient to support the trial court's findings that she knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children, she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children, she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of her children who had been in the temporary managing conservatorship of appellee, the Department of Family & Protective Services ("DFPS"), and termination of her parental rights was in the best interest of the children. In eight of her sixteen issues, appellant contends that she received ineffective assistance of counsel. In her eighth issue, appellant contends that there was "[n]o causal nexus between conditions in [her] household and imminent danger to health, safety or welfare of children" to justify "emergency removal" of children from the home.
See TEX. FAM. CODE ANN. § 263.045(a) (Vernon Supp. 2011).
See id. § 161.001(1)(D) (Vernon Supp. 2011).
See id. § 161.001(1)(E).
See id. § 161.001(1)(O).
See id. § 161.001(2) (Vernon 2008).
See TEX. FAM. CODE ANN. § 262.104 (Vernon 2008) (authorizing DFPS to take possession of child in emergency without court order in certain instances).
We affirm.
Background
On May 5, 2009, DFPS issued a "notice of removal of children," wherein, Yesenia Perez, the DFPS caseworker assigned to appellant and her children, noted that appellant suffered from "mental health instability" and Perez was "[u]nable to locate relatives or friends for voluntary placement." The trial court, on May 6, 2009, entered an "order for protection of a child in an emergency and notice of hearing" regarding appellant's children. The court recognized that DFPS had removed the children from appellant's custody, and it named DFPS the temporary sole managing conservator for both children pending a full adversary hearing.DFPS then filed a petition to terminate appellant's parental rights to both of her children.
See id.
See TEX. FAM. CODE ANN. § 262.201 (Vernon 2008).
DFPS attached to its petition the affidavit of Perez, in which she summarized events that took place before DFPS took emergency custody of the children. In her affidavit, Perez testified that on March 6, 2009, DFPS received a report describing appellant's behavior as manic and alleging that appellant had been neglectful in supervising her children. Appellant, who was a teacher, and her daughter had been absent from school on February 19 and February 20. Medical records indicated that, on February 21, 2009, a police officer took appellant to the Harris County Psychiatric Center, where she was placed in a four-point restraint due to "combative," "destructive," and "self-destructive" behavior and "poor impulse control." Test results indicated that appellant had amphetamines in her system. Although appellant was released on February 23, 2009 after being diagnosed with substance-induced "psychotic disorder," she was again hospitalized on March 2, 2009. Her behavior was characterized as "disoriented" and "more bizarre" than before, and her daughter was again absent from school on that date.
On April 13, 2009, DFPS received a referral alleging that appellant had physically abused both of her children. Appellant's mother had called for emergency assistance, stating that appellant had been "hitting and yelling at the children." Appellant "seemed delusional," and a police officer who had been dispatched to appellant's house remarked that officers had been called to the home "a couple of times because of disagreements between the grandmother and mother." Lenique Horace, a DFPS caseworker, interviewed appellant's daughter, who stated that appellant had spanked her and appellant's son had a "nickel-sized mark on his head" because he "was trying to pull himself up on the refrigerator and fell over." Horace also interviewed appellant, who stated that she merely had a "little argument" with her mother and she was "going to counseling."
Perez further testified that on April 22, 2009, DFPS received another referral alleging appellant's neglectful supervision of the children. When Perez arrived at appellant's house, she discovered that appellant was not there, and she called appellant on her cellular telephone. Appellant informed Perez that she had been at a bank and was on her way home. When appellant arrived at the home, she told Perez that her mother had left to pick up the children and they "probably went out to eat dinner." When Perez inquired about appellant's "mental health," appellant replied that her doctor had prescribed her medicine "for a psychiatric disorder" but the medicine "caused her to be ill." A police officer then arrived at appellant's house and explained that a bank employee "had called the police on [appellant] because of her behavior" as "she was apparently yelling in or near the bank."
Perez noted that appellant "appeared to make up elaborate stories," and Perez became "uneasy" due to appellant's "abrupt mood changes." Perez explained that "DFPS wanted [appellant] to participate in Family Based Safety Services," which "would possibly involve a psychological assessment and other services." Eventually, appellant "agreed to move out of the home and allow the children to stay with" her mother, but appellant continued to yell at Perez. When appellant's mother arrived, she "agreed and believed her daughter needed help." However, over the next few days, appellant's mother called Perez several times to inform her that appellant "had been trying to get into the home." At one point, appellant called Perez from a neighbor's home, stating "that she thought she should be able to go to her home," but Perez replied that DFPS "needed her to get some treatment."
On May 4, 2009, Perez learned that appellant's mother had been admitted to a hospital because she was "disoriented and not feeling well." Perez determined that appellant's mother "was not going to be able to handle fending off [appellant] in [her] current state." Because appellant's mother was hospitalized and appellant "had not received treatment for her mental health," DFPS took the children from the hospital and placed them in a foster home. Perez spoke to appellant, who "stated that she [did] not have anywhere for the children to go because they should be with her," and appellant did not "provide the agency with any information on possible voluntary placements." As a result, DFPS asked to be named Emergency Temporary Managing Conservator of both children, and Perez opined that there was "reasonable cause to believe that the children [would be] in imminent danger of physical abuse" if they remained with appellant.
On June 17, 2009, DFPS issued a Family Service Plan ("FSP") for appellant, requiring her to attend a parenting class, undergo a psychological evaluation "and follow all recommendations," visit the children twice a month, and "comply with all CPS approved services and follow all recommendations from the service providers." The trial court then conducted a full adversary hearing as a bench trial.
At trial, appellant testified that she gave birth to her daughter in January 2001 and her son in June 2008. Appellant admitted that in 2001, the Tennessee Department of Children's Services ("TDCS") took legal custody of her daughter for six months because she "allowed another person to hold [her] daughter and it was inappropriate." After DFPS obtained the emergency order naming it the temporary possessory conservator for both children in May 2009, appellant moved to Tennessee in August to live with friends, and she did not visit the children until February 2010, when she moved back to Texas. While in Tennessee, appellant attended parenting classes and received "treatment services" because of her "Bipolar disorder," which had first been diagnosed in 2001. She also voluntarily admitted herself to the Middle Tennessee Mental Health Institute ("MTMHI") because of "side effects" from a "drug called Cymbalta." After her discharge, and on the recommendation of the doctors at MTMHI, appellant went to the Centerstone Psychiatric Facility, where she took her parenting classes. In the report from Centerstone, appellant denied ever seeing a doctor, undergoing a psychiatric evaluation, or being diagnosed with "schizophrenia, paranoid type." When she returned to Houston, appellant began seeing Dr. Plummer, a psychiatrist, about once every two weeks, and he prescribed her "900 milligrams of Lithium."
Appellant explained that in April 2009, she told a DFPS caseworker that she had been prescribed a medicine that caused her "some ill effects," but she denied that a police officer had ever come to her home or she had ever told a caseworker any "elaborate stories." Appellant admitted that there had been an "incident" at her bank over her "mother's bills," but she denied "yelling" at anyone at the bank. Ultimately, appellant agreed to leave the house so that she could "keep [the children] in the home." She explained that, at the time of trial, she was employed at Rainbow Works, a "care facility," and living in her own apartment. Appellant believed that she had completed, "four or five months" before the trial, the requirement in her FSP to complete a "psychological evaluation," although she could not recall where she underwent the evaluation.
Patti Block, the court-appointed guardian ad litem for the children, testified that she conducted an independent review of DFPS's investigation. Block opined that appellant demonstrated a "lack of nurturing," was not "in touch" with her children's "day-to-day lives," and was not able to "take care" or "provide for them." Block felt that appellant's interactions with her daughter were "inappropriate," and she explained that the daughter would have "nightmares" and "sleep-walking issues" after meeting with appellant. Block was also concerned about appellant's "inconsistency," "highs and lows," and mental "instability." And she opined that appellant had "difficulty maintaining her touch with reality." Block explained that she had not heard of Dr. Plummer before the trial and never received any reports from Dr. Plummer. Block was also not aware that appellant had obtained a new job or apartment.
Block received a May 2010 psychological evaluation of appellant by Dr. Mandi Norris at West University Psychological Associates. Dr. Norris diagnosed appellant as having "delusional disorder," but she ruled out "schizophrenia/schizoaffective disorder." Among the recommendations in Dr. Norris's evaluation were that appellant be referred for a "psychiatric evaluation" and undergo "individual therapy." However, Block received only one telephone call from appellant in which she stated that she "was going to a therapist," and Block did not receive any records regarding such therapy. On cross-examination, Block explained that she met with DFPS caseworkers in the summer of 2010, and they informed her that appellant had been receiving "treatment." However, Block did not recall where appellant had received treatment, and she was not contacted by a psychiatrist or psychologist about any such treatment.
Chequetta Deadmon, a DFPS caseworker, testified that she was assigned to appellant's case since May 2009 and sent the FSP to appellant while she was residing in Tennessee. Appellant signed the FSP and sent it back to DFPS. Because Deadmon had received no evidence that appellant had attended "individual therapy" or undergone a "psychiatric evaluation" as recommended by Dr. Norris, Deadmon did not believe appellant had complied with the terms of the FSP.
Deadmon explained that when appellant made her first visit to the children in June 2009, she was "very dirty" and "had a lot of baggage with her." Once placed in the room with her children, appellant "started mumbling chants" and "telling [her daughter] that she belonged to God and when she turns 18 that God will take her away." Appellant also "whisper[ed] a chant" into her son's ear. Concerned that appellant was not "in her right state of mind," Deadmon called a security guard to escort her out of the office. One week later, appellant returned to the DFPS lobby, "throwing out random statements" and "demanding to see her children," despite the fact that the children were not in the building at that time. Deadmon next heard from appellant in September 2009, when appellant informed Deadmon that she had moved to Tennessee. Deadmon opined that appellant had "no bond with" her son, and she explained that, during visits, her "whole focus is mostly" on her daughter.
Deadmon further testified that although she received requested records from Centerstone, she never received any information or documentation regarding appellant's employment at Rainbow Works or the apartment where she testified that she had been living. Also, when she asked appellant what medication she was taking, appellant could not remember. On cross-examination, Deadmon admitted that DFPS did not provide appellant with a copy of Dr. Norris's psychological evaluation. However, she explained that although DFPS had referred appellant to undergo a psychiatric evaluation, appellant did not appear for the evaluation. Deadmon also explained that although she asked appellant to provide her with a release pertaining to her visits with Dr. Plummer, appellant would not agree to a release. Deadmon opined that appellant was "paranoid schizophrenic" and had failed "to get treatment for her medical condition."
During Deadmon's testimony, DFPS entered into evidence the discharge summary from appellant's stay at MTMHI and her psychiatric evaluation from Centerstone. The MTMHI discharge summary indicated that appellant had been admitted "for psychotic behavior" and had "suicidal ideation with unknown plans." Under "Mental Status Examination," the summary described appellant as "disheveled" and "disoriented" and her behavior as "uncooperative, hostile, and bizarre." Appellant was "delusional, with [a] disorganized thought process." She claimed she wanted to "die for Jesus," and, after two days, "continued to have delusional thoughts that she was dating Kenny Chesney." Appellant was then discharged to Centerstone, where she was diagnosed with "schizophrenia, paranoid type." During her last visit to Centerstone, she was prescribed Risperidone and Venlafaxine.
Perez testified about the incident in which a police officer, during one of Perez's visits to appellant's home, came to the door and explained that appellant's bank "had called the police on her because she was . . . being loud or yelling." After speaking with appellant for "a little bit," the police officer left the home. Perez explained that appellant "didn't seem to be stable" and told "elaborate stories about celebrities." When Perez mentioned her concern about appellant's mental health to appellant, she got "angry and . . . start[ed] to [raise] her voice," but then "change[d] her mood immediately" and acted "nice." Perez then recommended that appellant leave the house to get treatment. Although appellant initially refused, "after awhile she did agree to . . . move out of the home" because she could not provide information regarding another relative or friend's house that would be appropriate for the children to reside in. Afterwards, Perez received several calls from appellant's mother informing her that appellant had been trying to break into the house "through the window" or "through the garage." When Perez learned that appellant's mother had been hospitalized, Perez decided that she had to remove the children and requested an emergency order naming DFPS temporary managing conservators of the children. On cross-examination, Perez admitted that the children were not in the home at the time of the incident concerning the bank and her home did not appear "unlivable."
Dr. Glen McLure, a licensed psychologist, testified that he had evaluated appellant shortly before trial. He explained that appellant was referred to him by Dr. Plummer, a psychiatrist. McClure opined that appellant "indicated some depression," but it "wasn't severe." He did not believe that appellant suffered from paranoid schizophrenia or "any psychotic disorders," but he did diagnose her as having "Bipolar disorder, which at one time had some psychotic features to it." McClure explained that "a majority of people are able to function" with Bipolar treatment, provided they "stay in complian[ce] with their medication" and are "monitored by a mental health professional." McClure did "not see any reason" why appellant could not return to teaching, "work with children," or parent effectively.
On cross-examination, McClure explained that a "typical issue with Bipolar people" is that they sometimes "misperceive that they don't need" medication. He admitted that if her symptoms deteriorated so that she "was allowed to be admitted to a hospital for a mental health problem," then appellant "probably wasn't functioning very well as a parent." However, McClure opined that with adequate "monitoring" and continued medication, appellant could be a functional parent. Although he conceded that appellant had "some psychotic incidents," he did not believe that they "met the criteria for" paranoid schizophrenia. Ultimately, McClure noted that appellant "acknowledges that Bipolar is a legitimate diagnosis for her," but he also conceded that appellant had a history of discontinuing her medication. He also explained that "there's some evidence that giving a Bipolar person antidepressants . . . accelerates or causes them to go into a manic phase."
Appellant testified that she had medical issues when she was prescribed Cymbalta, an antidepressant, following the birth of her son, but she was, at the time of trial, taking Lithium instead. She noted that she had completed parenting classes and had been regularly attending therapy sessions with Dr. Plummer. She explained that she had moved to Tennessee to live with friends because she was "hoping to bring the children there" but "immediately came back to Texas" when she learned that was not an option.
Sufficiency of the Evidence
In her fourth and sixth issues, appellant argues that the evidence is legally and factually insufficient to support the trial court's finding that she endangered her children because "[c]lear and convincing evidence was not admitted at trial that [she] committed specific acts or omissions" constituting "endangerment." See TEX. FAM. CODE ANN. § 161.001(1)(E) (Vernon Supp. 2011). In her sixteenth issue, appellant argues that the evidence is insufficient to "prove [appellant's] failure to complete actions required by the Family Service Plan." In her fifth issue, appellant argues that the evidence is legally and factually insufficient to prove that termination of her parental rights was in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001(2).
A parent's right to "the companionship, care, custody, and management" of her children is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982) (internal citation omitted). The United States Supreme Court has emphasized that "the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas Supreme Court has also concluded that "[t]his natural parental right" is "essential," "a basic civil right of man," and "far more precious than property rights." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination proceedings should be strictly scrutinized. Id.
Because termination "is complete, final, irrevocable, and divests for all time that natural right . . . , the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights." Id. (citing Santosky, 455 U.S. at 747-48, 102 S. Ct. at 1391-92; Richardson v. Green, 677 S.W.2d 497, 500 (Tex. 1984)). 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 established." TEX. FAM. CODE ANN. § 101.007 (Vernon 2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the standard of proof is "clear and convincing," the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. In re J.F.C., 96 S.W.3d at 264-66.
In conducting a legal-sufficiency review in a parental-rights termination case, we must determine whether the evidence, viewed in the light most favorable to the finding, is such that the fact finder could reasonably have formed a firm belief or conviction about the truth of the matter on which DFPS bore the burden of proof. See id. at 266. In viewing the evidence in the light most favorable to the finding, we "must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so," and we "should disregard all evidence that a reasonable fact finder could have disbelieved or found to be incredible." In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
In conducting a factual-sufficiency review in a parental-rights termination case, we must determine whether, considering the entire record, including both evidence supporting and evidence contradicting the finding, a fact finder reasonably could have formed a firm conviction or belief about the truth of the matter on which the State bore the burden of proof. Id.; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should consider whether the disputed evidence is such that a reasonable fact finder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266-67. "If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited 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." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
In proceedings to terminate the parent-child relationship brought under section 161.001, DFPS must establish, by clear and convincing evidence, one or more of the acts or omissions enumerated under subsection (1) of section 161.001 and that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001. Both elements must be established, and termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). "Only one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Endangerment
A court may terminate the parent-child relationship if the court finds by clear and convincing evidence that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child. TEX. FAM. CODE ANN. § 161.001(1)(E). "Endanger" means to expose to loss or injury or to jeopardize. Boyd, 727 S.W.2d at 533. Although such endangerment requires more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffer injury. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). The specific danger to the child's well-being may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).
Here, there is evidence that appellant engaged in a course of unstable behavior. Records from TDCS indicate that, beginning in 2001 after the birth of appellant's daughter, TDCS had been concerned with appellant's ability to raise her because appellant was "bi-polar and ha[d] not been taking her medication as prescribed." These records also indicate that appellant was hospitalized, and other medical records described her as "severely mentally unstable" with suicidal thoughts. Also in 2001, TDCS received a telephone call from the manager of a Dillard's department store, explaining that appellant had entered the store with her daughter and "did not seem to know where she was," "appeared to be confused," "would ramble about different subjects," and would give her daughter to strangers and then leave the vicinity.
More recently, DFPS, in 2009, received two reports of appellant's neglectful supervision of her children. Her daughter was absent from school on February 19 and February 20, 2009. And medical records indicate that, on February 21, 2009, police officers took appellant to the Harris County Psychiatric Center because she was "out of control at home" and "acting bizarre." When taken to the Psychiatric Center, appellant had to be placed in a four-point restraint for being "combative," "self-destructive," and aggressive. The report, which was introduced into evidence, notes that appellant was screaming "obscenities," "racial epithets," and "hypersexual remarks" at the staff, and she had "very poor insight into the events . . . that prompted calling of the police." Appellant tested positive for amphetamines in her system, and she was ultimately discharged with a diagnosis of "substance-induced psychosis," which the attending physician opined was caused by her ingestion of diet pills.
One month later, after another allegation of neglectful supervision and an allegation of "physical abuse" from appellant's mother, DFPS caseworker Perez visited appellant's home, where a police officer arrived and explained that a bank had reported that appellant had been "yelling" at the bank. Perez noted that appellant told "elaborate stories about celebrities." Although appellant had agreed to leave the children with her mother and receive treatment for her mental illness, appellant's mother called DFPS several times afterwards, alleging that appellant was trying to break into the house.
Shortly thereafter, DFPS took custody of the children, and appellant admitted that she was homeless for "two or three months." During one visit with the children in June 2009, DFPS caseworker Deadmon explained that appellant was "very dirty" and carried "a lot of baggage with her." Deadmon testified that when appellant entered into the room to see her children, she was "mumbling chants" and "telling [her daughter] that she belonged to God and when she turns 18 that God will take her away." She eventually had to be escorted from the DFPS office.
In August 2009, after appellant had moved to Tennessee, she was admitted to MTMHI because of her "psychotic behavior." In the mental status examination, it was noted that appellant was "disheveled" with "poor hygiene" and "disoriented." Her behavior was described as "uncooperative, hostile, and bizarre," and it was noted that she possessed a "[p]oor insight into her current illness and situation." The examination also revealed that appellant had "thought content with suicidal ideation" and "religious delusions," and she claimed "she wanted to 'die for Jesus.'" On her second day at MTMHI, appellant "became very angry" and "[c]ontinued to have delusional thoughts." She was eventually discharged to Centerstone, where she was diagnosed with "schizophrenia, paranoid type."
In addition to appellant's history of unstable and delusional behavior, medical evaluations of her repeatedly express a concern that she does not understand the severity of her mental health problems. For example, in the MTMHI evaluation, it was noted that appellant had "[p]oor insight into her current illness and situation" and concern was expressed about possible "noncompliance with treatment." In her Centerstone evaluation, it was noted that appellant denied "any manic [symptoms] or ever being psychotic, which [was] contradictory" to the report from MTMHI. In the psychological evaluation from West University Psychological Associates, it was reported that "[appellant's] presentation during the course of [her] evaluation suggests that she has no meaningful insight into her history of psychological difficulties." And Dr. McClure noted that appellant's "episodic memory was below average," she could not "provide a reasonably accurate history of her mental health treatment," and she lacked "complete awareness of the severity of her mental health problems." Finally, Deadmon testified that although DFPS had twice referred appellant for a psychiatric evaluation, she did not attend either appointment.
In her reply brief, appellant "disputes that evidence" of incidents occurring "after the removal" of her children from her custody "can be used" to prove endangerment under sections 161.001(1)(D) or 161.001(1)(E). In support of this proposition, she cites In re J.K.F., 345 S.W.3d 706 (Tex. App.—Dallas 2011, no pet.). In J.K.F., the court noted that "[t]he relevant time frame within which to determine whether there is clear and convincing evidence of endangerment to the child is before the child was removed." Id. at 711. Here, however, as noted above, appellant's long history of mental illness included her inability to recognize the severity of her illness and properly medicate herself. Thus, the medical evidence and evidence of incidents occurring after the children had been removed from appellant's custody is relevant as establishing appellant's mental health problems and that she actually endangered her children before this removal.
Viewing the evidence in the light most favorable to the trial court's findings, we conclude that the trial court could have formed a "firm belief or conviction" that appellant's history of delusional behavior, together with multiple reports indicating that she lacked insight into the severity of her mental health condition, and her failure to properly seek treatment and take medication constituted a course of conduct that endangered the physical and emotional well-being of her children. See TEX. FAM. CODE ANN. § 161.001(1)(E); see also In re J.I.T.P., 99 S.W.3d 841, 845-46 (Tex. App.—Houston [14th Dist.] 2003, no pet.) ("[T]he trial court could have considered the mother's desire to hurt herself and her history of noncompliance with her medication schedule as factors endangering [her child's] well-being."); In re R.M., No. 14-02-00221-CV, 2003 WL 253291, at *3-4 (Tex. App.—Houston [14th Dist.] Feb. 6, 2003, no pet.) (mem. op.) (noting parent's "major depressive disorder which led to suicidal tendencies" and "failure to maintain a consistent therapy schedule" as significant factors indicating endangerment); In re C.D., 664 S.W.2d 851, 853-54 (Tex. App.—Fort Worth 1984, no pet.) (holding evidence sufficient to support finding of endangerment where mother was hospitalized over twenty times for paranoid schizophrenia, there was "testimony that the mother had been violent in the past because of her mental condition," and she had made several suicide threats) (citing Carter v. Dallas County Child Welfare Unit, 532 S.W.2d 140 (Tex. Civ. App.—Dallas 1976, no writ)). Considering the entire record, although appellant testified that she was receiving treatment at the time of trial, and Dr. McClure testified that he believed that appellant could parent effectively with consistent medication and therapy, we conclude that a reasonable fact-finder could have found that appellant's history of mental illness and failure to recognize its severity demonstrated that consistent improvement was unlikely. See In re A.M.C., 2 S.W.3d 707, 716-17 (Tex. App.— Waco 1999, no pet.) (holding that although several doctors testified that mother with mental illness "had made significant progress," jury could have resolved inconsistencies in favor of termination). Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court's finding that appellant engaged in conduct that endangered the physical or emotional well-being of her children. See TEX. FAM. CODE ANN. § 161.001(1)(E).
We overrule appellant's fourth and sixth issues.
Having held that the evidence is legally and factually sufficient to support the trial court's finding under section 161.001(1)(E), we need not address appellant's argument that the evidence is legally and factually insufficient to support the trial court's findings under section 161.001(1)(D) or her sixteenth issue, in which she argues that the evidence is legally and factually insufficient to "prove [appellant's] failure to complete the actions required by the Family Service Plan" under section 161.001(0). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) ("Only one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest.").
Best Interest
In determining whether the termination of appellant's parental rights was in the children's best interest, we may consider several factors, including (1) the children's desires, (2) the current and future physical and emotional needs of the children, (3) the current and future physical danger to the children, (4) the parental abilities of appellant, (5) whether programs are available to assist appellant in promoting the best interests of the children, (6) plans for the children by appellant, (7) the stability of the home, (8) acts or omissions of appellant that may indicate that the parent-child relationship is not proper, and (9) any excuse for acts or omissions of appellant. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The Holley factors are not exhaustive, and there is no requirement that DFPS prove all factors as a condition precedent to parental termination. See In re C.H., 89 S.W.3d at 27.
In regard to the parenting abilities of appellant, as noted above, appellant has been hospitalized for mental health issues on several occasions, beginning as early as 2001 after the birth of her daughter. Her daughter had previously been taken into custody by TDCS, and DFPS had received six referrals since the birth of her son. In regard to any acts or omissions that may indicate the existing parent-child relationship is not proper, Bock, the children's guardian ad litem, testified that appellant demonstrated a "lack of nurturing" and was not "in touch with [the children's] day-to-day lives." She also testified that appellant would make inappropriate comments during visitations and, with respect to her daughter, "[i]t's as if the roles were reversed and [her daughter] was taking on the mother's role." Bock, in her report to the court, stated that appellant's son "is not bonded to his mother." Deadmon also testified that appellant has "no bond" with her son and during visits her "whole focus" is on her daughter. In contrast, Bock testified that the foster family was a "loving family," the father was a pastor and often worked from home to look after the children, and both children had bonded with their foster parents and their two older biological children.
In regard to programs available to assist in the care of appellant, there is some evidence that appellant had been attending therapy sessions with Dr. Plummer in the four months before trial. However, there is also evidence that appellant had twice failed to show up for psychiatric evaluations set up by DFPS, and several notations from the medical records introduced into evidence indicate appellant's failure to acknowledge the severity of her mental illness. In regard to the stability of her home, appellant testified that, at the time of trial, she was working at a retirement home and had her own apartment. However, DFPS never received any documents pertaining to appellant's state of employment or her residence. Instead, appellant testified that in the summer of 2009, she was homeless for two or three months. She then moved into a friend's house in Tennessee. Bock, in her court report, stated that upon appellant's return to Texas, she lived with two "friends" but had "no established relationship with them . . . until moving into their home."
Viewing the evidence in the light most favorable to the trial court's findings, we conclude that the trial court could have formed a "firm belief or conviction" that termination of appellant's parental rights was in the children's best interests. Considering the entire record, appellant did provide evidence that she was attending therapy sessions, taking medication, and working at Rainbow Works at the time of trial. However, DFPS presented evidence that appellant had a long history of mental illness, failed to show up for scheduled psychiatric evaluations, and acted inappropriately at several visits, and her daughter missed school twice due to appellant's mental illness. Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court's finding that termination of appellant's parental rights was in the children's best interest.
We overrule appellant's fifth issue.
Ineffective Assistance of Counsel
We note initially that DFPS argues that because appellant retained counsel at trial, she cannot assert a claim of ineffective assistance of counsel on appeal because "the right to effective counsel" is based on the "statutory right to counsel for indigent parents." However, in a case where DFPS made the same argument and alleged that a parent had retained counsel at the trial level, this Court addressed the parent's claim of ineffective assistance of counsel. See In re V.V., 349 S.W.3d 548, 558-61 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
In her first, second, third, tenth, eleventh, thirteenth, fourteenth, and fifteenth issues, appellant argues that she received ineffective assistance of trial counsel because she was "prevented" from "carrying through with her request for a jury trial" and "submitting and offering testimony and other evidence which would have defeated the [DFPS's] claims"; her trial counsel "failed to object to unduly prejudicial information . . . and to appropriately respond to [DFPS's] objections to her evidence"; she was prevented from "presenting evidence of compliance with psychiatric or psychological evaluation and other service plan requirements" and "presenting evidence that the statutory basis for removal of children from home not met"; and she was prevented from presenting evidence that "she sought and received appropriate and effective treatment for her mental and physical illness sufficient to remove danger to the health, safety, and welfare of children," "making the Department the sole conservator was not in the children's best interest," and "the acts or omissions alleged were solely the acts or omissions of others."
Proving ineffective assistance of counsel requires a showing that (1) counsel made errors so serious that counsel was not functioning as "counsel" guaranteed by the Sixth Amendment and (2) the deficient performance of counsel prejudiced the defense in a manner "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." In re H.R.M., 209 S.W.3d at 111 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984); In re M.S., 115 S.W.3d 534, 545 (Tex. 2003)). In adopting the Strickland test for parental termination cases, the Texas Supreme Court has explained that, "taking into account all of the circumstances surrounding the case," a court "must primarily focus on whether counsel performed in a reasonably effective manner." Id. A court "must give great deference to counsel's performance, indulging a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, including the possibility that counsel's actions are strategic." Id. Challenged conduct constitutes ineffective assistance only when it is "so outrageous that no competent attorney would have engaged in it." Id.
Appellant first argues that her trial counsel "failed to file the required notice of points on appeal or a designation of matters to be included in the record" and that such a failure was "not a concession to any perceived lack of merit." See Act of June 15, 2001, 77th Leg., R.S., ch. 1090, 2001 Tex. Gen. Laws 1090 (amended 2011) (current version at TEX. FAM. CODE ANN. § 263.405 (Vernon 2008)) (requiring trial counsel to file within fifteen days of trial court's order "a statement of the points or points on which the party intends to appeal"); In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (holding failure of trial counsel to file statement of points within statutory time-period was "seriously deficient"). However, although trial counsel did not file a document entitled "statement of points," he did file a document entitled "motion for reconsideration if necessary motion for new trial/statement of parents notice of appeal (TFC 263.405)." In this document, trial counsel both moved for a new trial, citing section 263.405, and contended that the evidence is legally insufficient to support a finding that appellant violated section 161.001(1). Furthermore, appellant's counsel on appeal filed her own statement of points, also alleging legal insufficiency of the evidence, ineffective assistance of counsel, and other claims. Because the trial court considered all of these arguments in the hearing for a new trial, and because this court has received a full record on appeal, any error by trial counsel in failing to file a document entitled, "Statement of Points," would be harmless.
Appellant also raises several other claims of ineffective assistance of counsel, stating simply that it "was not reasonable" for trial counsel to "waive [appellant's] right to a jury trial"; "fail to seek to compel discovery or special exceptions regarding the grounds on which [DFPS] would be seeking to terminate [appellant's] rights; "fail to review [DFPS's] report prior to trial in order to be able to make objections to specific portions of the report on the basis of hearsay"; fail to "seek an appearance by the psychiatrist treating [appellant], Dr. Plummer"; "fail to present documentary or testimonial evidence to support [appellant's] testimony regarding her residence, employment, support system in Texas, or other evidence of her stability"; and fail "to seek to locate Donald Tenney or to determine whether Donald Tenney and [appellant] were married on the date" of the birth of appellant's son. However, there is no evidence in the record that appellant demanded a jury trial, any of the above documents or evidence that appellant claims should have been offered were available, or any of the above witnesses were available and willing to testify. Furthermore, appellant does not explain how the above actions prejudiced her case. Given the "strong presumption" that counsel's performance "falls within the wide range of reasonable professional assistance, including the possibility that counsel's actions are strategic," we cannot say on this record that counsel's performance was "so outrageous that no competent attorney would have engaged in it." See In re H.R.M., 209 S.W.3d at 111. Accordingly, we hold that appellant has not demonstrated that she received ineffective assistance of counsel.
We overrule appellant's first, second, third, tenth, eleventh, thirteenth, fourteenth, and fifteenth issues.
Emergency Removal
In her eighth issue, appellant argues that there was "[n]o causal nexus shown between conditions in [appellant's] household and imminent danger to health, safety, or welfare of children" and, as a result, there is insufficient evidence to support DFPS's emergency removal of the children from her custody. See TEX. FAM. CODE ANN. § 262.201 (Vernon 2008) (stating that, following an emergency removal, trial court must return children to parent's custody unless provisions of section 262.201 are satisfied). Here, the trial court, on May 6, 2009, entered an "order for protection of a child" for both of appellant's children, authorizing their emergency removal. However, since that date, the trial court has entered a final order terminating the parental rights of appellant to her children. Because a final order has been entered in the case, appellant's complaints regarding a temporary order are moot. See Rafferty v. Finstat, 903 S.W.3d 374, 378 (Tex. App.— Houston [1st Dist.] 1995, writ denied) ("In general, temporary orders of a trial court issued during the pendency of a proceeding are superseded by the trial court's final order."); Wright v. Wenzel, 749 S.W.2d 228, 234 (Tex. App.— Houston [1st Dist.] 1988, no writ) (declining to address issues related to temporary orders because trial court had entered final order).
We overrule appellant's eighth issue.
Remaining Issues
Under the section of her brief entitled, "Issues Presented," appellant contends in her seventh, ninth, and twelfth issues that the "final order in each case fails to expressly state the specific statutory basis for termination," the evidence is insufficient "to prove that the Department sought to accomplish reunification or relative placement," and "[d]enial of due process; termination based on improper factors." Although these issues are listed as "Issues Presented," there is no substantive discussion of these issues in the brief. Accordingly, we do not address these issues as they are inadequately briefed. See TEX. R. APP. P. 38.1.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.