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In re C.U.M.H.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 30, 2014

IN THE INTEREST OF C.U.M.H., A CHILD

On appeal from the County Court at Law No. 1 of Calhoun County, Texas.

Before Justices Rodriguez, Garza, and Perkes

MEMORANDUM OPINION

GREGORY T. PERKES Justice

Following a bench trial, the trial court terminated A.V. ("Mother") and J.A.'s ("Father") parental rights to their minor child, C.U.M.H. ("Charles").[1] By one issue, Mother argues the evidence is legally and factually insufficient to support the finding that termination of her parental rights is in Charles's best interest. By one issue, Father argues that termination of his parental rights for failure to comply with court-ordered services violates the equal-protection clause of the Fourteenth Amendment to the United States Constitution. See U.S. Const, amend. XIV. According to Father, he lacked the financial means necessary to comply with service-plan requirements, such as driving to scheduled visits with Charles and completing an anger-management course. We affirm.

I. FACTUAL AND BACKGROUND

A. Mother and Father's Four Children

Mother and Father had at least four children together. In August 2011, their eighteen-month-old son, C.H. ("Calvin"), was found dead in his crib. At the time of his death, Calvin had an empty stomach, a sunburn, and hard, dry stool in his bowels. Calvin had lost at least six pounds in the month preceding his death. The Department of Family and Protective Services (the "Department") concluded there was reason to believe Mother and Father's physical neglect of Calvin caused his death. On account of Calvin's death, the Department removed a younger son, C.H. ("Damien"), from Mother and Father's home in August 2011.

On August 17, 2012, Charles was born. The Department removed Charles from Mother and Father at birth, before Mother and Father could take him home from the hospital. The reason for removal was risk of physical neglect in light of Calvin's death. On August 20, 2012, the Department filed its petition for conservatorship and termination of parental rights. The Department created service plans for Mother and Father which the trial court adopted. Among other requirements, the service plans required Mother and Father to complete counseling and an anger-management course.

Between the initiation of this suit and the time of trial, Mother and Father moved to Atascosa County, Texas, and had another baby, A.H. ("Ann"). The Department removed Ann from Mother and Father at birth.

On August 22, 2013, the trial court held a bench trial on the termination of Mother's and Father's parental rights to Charles. The trial court thereafter entered judgment terminating their parental rights.[2] This appeal ensued.

B. The Evidence Adduced at the Termination Trial

1. Counselor Wendy Holder's Testimony

Wendy Holder is a licensed professional counselor. She provided individual counseling services to Mother and Father starting in December 2011.[3] Holder testified that Michelle Moran, Ph.D. diagnosed Father with schizophrenia and Mother with bipolar disorder in 2011 (after Calvin's death and Damien's removal from the home). Holder testified about her counseling relationship with Mother and Father. Holder concluded that Mother living with Father poses a danger to Charles. Holder explained that their mental illnesses make it unsafe for Charles to live with Mother and Father because there would not be an adult with sufficient mental health present to care for Charles.

Holder provided weekly counseling services to Mother and Father until their parental rights to Damien were terminated, after which their participation in counseling became inconsistent. Holder testified that Mother and Father scheduled fifteen sessions and missed seven in 2013 and that they were required to attend thirty-two sessions between January 2013—after their parental rights to Damien were terminated—to June 2013 when they decided to stop attending altogether.

Holder testified that during counseling, Father told her that he suffers from schizophrenia, post-traumatic stress disorder, hallucinations, and that he has multiple personalities. Holder related that during the counseling sessions, she met some of Father's "five different personalities, " one of which is violent. Holder explained:

It's been discussed in session, fearfulness of a particular personality being unleashed or getting out. Homicidal tendencies have been addressed in individual counseling sessions, and even [Father] has disclosed a fearfulness of letting—of one of his particular personalities loose, and what might happen if that—that happened.

Holder and Father spoke of his violent behavior in the home. Father stated there were: "Like holes punched in walls, anger outbursts that were uncontrollable, those type of things." Holder acknowledged that this behavior caused her concerns if a child were to be in the home. When asked if Father ever discussed any violent tendencies to people, she testified, "I do remember one incident that he had mentioned that he had followed some people with the thoughts of harm, and he was able to catch himself and make himself go home and knew that that was something that needed to be addressed and talked about."

Holder testified further that Father's schizophrenia includes hallucinations and mood swings, from having manic episodes to having depressive episodes. Holder explained these symptoms make it difficult for Father to maintain employment and to maintain a home. When asked why she was of the opinion that Father would be unable to care for Charles, Holder replied:

I have [concerns] about [Father]... if he begins to not have as much control over the personalities again and one of them comes out. He doesn't—you know, he has lapses in his memory when those things happen, and he can't tell you what happened sometimes. So, if he's in care of a child during that time, that's very concerning.

Holder also expressed concern that Father discontinued his counseling and medications, which might otherwise help him control his mental illness. Holder explained that in counseling, Father had started to make progress in processing Calvin's death. Father admitted to Holder that his difficulty with managing stress contributed to his missing the symptoms that Calvin was sick and needed medical help before his death.

Holder testified that, like Father, Mother might benefit from regular counseling indefinitely, but Mother stopped participating on a regular basis.[4] Holder described that Mother is bipolar and had "a very flat affect in her counseling, [and a] limited range of emotions." Holder explained that Mother "[t]ends to minimize, [and] dismiss things" and is very difficult to "read" because she does not show much emotion. Holder testified that she discussed with Mother the possibility that her parental rights might be terminated and that Mother demonstrated a "very constricted affect. Almost like it was just kind of dismissed and pushed aside." Mother also told Holder that "at times" she was experiencing some depression.

When asked how Mother's flat affect affects Mother's ability to parent Charles, Holder replied:

She doesn't readily express emotions. She also has a very limited capacity in her personal relationships, except those immediately around her—like she's very close to [Father]. She's very close with her mother. But due to the fact that she has difficulty with interpersonal relationships, and due to the fact that the children have been removed—[Charles] has been removed at birth—I would suspect that there's going to be some difficulty attaching—with some attachment issues with the child, which makes it difficult to parent. Any time there's attachment issues going on, it's going to make it more difficult to bond.

Holder testified that, in her professional opinion, Mother's inability to attach is potentially dangerous to Charles. She explained: "If you're not bonded to a child, it makes it more difficult to care for him. We've also, through her counseling, discussed situations that happened with [Calvin, their child who died]." According to Holder, Mother did not "process" Calvin's death in counseling and did not recognize any responsibility for Calvin's death. Mother admitted to Holder that "she lacked some bonding with [Calvin] due to some circumstances that surrounded the situation they were in at the time."[5]Holder also expressed concern over Mother's inability "to maintain a job, inconsistencies with being unable to maintain the household" and her "struggle to take care of herself."

When asked if Mother or Father expressed any "long-term goals for [Charles], " Holder testified that they did not. On cross-examination, Holder confirmed that "[i]t would be a struggle" for Mother and Father to put Charles's needs before their own. When pressed further regarding whether they would be able to do that, Holder replied, "Not consistently, no." Holder was then asked, "Would they be able to do it some of the time?" and she responded, "Not enough of the time to ensure the safety of the child."

2. Social Worker Joseph Smullen's Testimony

Joseph Patrick Smullen is a licensed master social worker who is a team leader of "Psychosocial Rehab Services" at Gulf Bend Center, the community mental health center at which Father was a patient. Smullen was Father's psychosocial rehabilitative case manager from November 2012 through late January 2013. Due to the magnitude of his condition, Father was authorized to receive weekly services from Gulf Bend Center in his own home.

Smullen explained that, "Psychosocial rehab consists of occupational, vocational, educational, and behavioral, and cognitive intervention to address deficits in functioning. Deficits in functioning . . . include independent living, employment, housing, and community integration." Smullen testified that Father's services focused on symptom management for his "schizoaffective disorder." Smullen primarily addressed Father's auditory hallucinations. Father had "five distinct voices that he was hearing, " one of which was a violent personality. Though Smullen saw Father for six of his ten appointments with Gulf Bend Center, Smullen testified he saw no improvements in Father's coping skills over the course of therapy.

3. Social Worker Shayla Sharon Prince's Testimony

Shayla Sharon Prince also served as a Case Manager for Father when he received services from Gulf Bend Center, and provided psychosocial rehab services to Father. She testified Father told her that he had hallucinations and "[h]e was just hearing different voices, different voices telling him different things." Prince testified that in April 2013, Father said he was no longer experiencing auditory hallucinations. She explained that services to Father stopped because "[h]e no longer wanted the services, and so he was discharged." Prince testified that based on her observations of Father between February and April 2013, Father is not "clean;" he does not regularly bathe and he does not maintain personal hygiene.

4. Department Case Worker Denise Marie Meza's Testimony

Denise Marie Meza has been the caseworker since "[t]he end of October" 2012. Meza developed the service plans for Mother and Father. She testified that she had no reason to believe that Mother and Father did not understand what was required of them. Mother and Father were required to participate in counseling with Holder; however, they stopped attending counseling in violation of their respective service plans. Both were unwilling to complete the counseling. Meza testified that neither Mother nor Father obtained stable employment, and that although they were required to obtain and maintain safe and stable housing, they did not. Meza attempted to visit Mother and Father's home once per month, but they were often out when Meza stopped by for a visit.[6] On multiple occasions when Meza did visit Mother and Father in their home [in Calhoun County], the home was in such a state of "disarray" that it would be dangerous for a young child like Charles.

Mother was court-ordered to go to Gulf Bend Center to participate in a psychiatric evaluation. Meza testified she never received any documentation that the evaluation happened. The psychiatric evaluation was ordered to determine whether Mother "needed medication for her mental illness." She related that Mother had worked ...


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