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In re E.R.

Court of Appeals of Texas, First District

November 30, 2017

IN THE INTEREST OF E.R., A CHILD

         On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2016-02731J

          Panel consists of Chief Justice Radack and Justices Higley and Bland.

          MEMORANDUM OPINION

          LAURA CARTER HIGLEY, JUSTICE

         Following a bench trial, the trial court signed a judgment terminating the parent-child relationship between C.P. ("Mother") and her four-year-old daughter, E.R. The trial court also appointed the Department of Family and Protective Services ("the Department") as E.R.'s sole managing conservator. In five issues, Mother contends that the evidence was not legally or factually sufficient to support termination of her parental rights or to support appointment of the Department as E.R.'s sole managing conservator.

         We affirm.

         Background

         In July 2015, Mother believed that E.R.'s father ("Father") was sexually abusing E.R. Mother limited Father's contact with E.R. Then, in September 2015, Mother formed the belief that E.R.'s step-grandfather was sexually abusing E.R. Mother took E.R. to the hospital where she saw a forensic nurse, who ruled out sexual assault but also noted that E.R. had impacted stool, which could possibly be caused by anal penetration or by the diet of fast food that Mother admitted to feeding E.R.

         Not believing the hospital's assessment, Mother contacted CPS. Based on the allegations of sexual abuse, Mother and E.R. were admitted into a domestic abuse shelter. Two days later, the Department was notified that Mother was behaving in a paranoid manner at the shelter. Mother admitted that she had hit another shelter resident because she believed that the resident had sexually assaulted E.R. As a result of Mother's behavior, Mother and E.R. were required to leave the shelter.

         Mother then took E.R. to a CPS medical clinic. After doctors there determined that the child had not been molested, Mother insisted that a CPS staff member at the clinic had sexually abused E.R. Based on her behavior, CPS told Mother that she needed a psychiatric evaluation.

         The doctor who performed the psychiatric evaluation certified under oath that there was a reasonable medical probability that Mother suffered from psychosis. Citing Mother's claims that several different people had sexually abused E.R. and Mother's assault on the resident at the shelter, the doctor further attested that Mother presented "a substantial risk of serious harm to others." An application was filed for Mother's involuntary commitment in which it was asserted that Mother should be "immediately restrained" based on her assault of the shelter resident and her accusations of sexual abuse of E.R. against several people. The application stated that Mother had "paranoid delusions of cameras filming [E.R.] and people molesting [E.R.]."

         A judge signed commitment papers involuntarily admitting Mother to the Harris County Psychiatric Center ("the Psychiatric Center") for 12 days. The Psychiatric Center's medical records indicate that Mother was involuntarily admitted "due to reported acute psychosis with agitation, paranoid delusions, and aggressive behavior." Mother was "clearly paranoid and psychotic with evidence of hypervigilance and prominent paranoid and persecutory delusions." The records indicate that Mother was admitted after CPS had become "concerned about [Mother's] repeated claims that her 3 year old daughter was being 'sexually molested' by several different individuals over the prior week including the patient's stepfather, a resident at a domestic abuse shelter, and then the staff at the Children's Protective Services office." The medical records noted that E.R. had been "examined by medical staff after each allegation but there was reportedly no evidence supporting [Mother's] claims." Mother "continued to assert that her daughter was being abused, despite evidence to the contrary." Mother "admitted that she had attacked her roommate at the shelter but felt that her actions were justified" because she believed that the roommate had molested E.R.

         The medical records note that Mother's brother was contacted by medical staff. The brother stated that Mother had "experienced paranoia since childhood" and that Mother's paranoia had been more severe in the previous four or five months.

         The brother said that Mother had a history of getting into fights and that she had spent time in jail. The brother also stated that Mother drank, smoked marijuana, and possibly used cocaine.

         The brother reported that, after she "took [E.R.] to doctor to check for abuse, " Mother went to Dallas to "start a new life"; however, once there, Mother called her brother, saying she was being followed "by a number of cars." She told him that people were "out to get her" and that "someone in Houston had paid the people in [the] cars to follow her." When he and another sister suggested that Mother seek professional help for her paranoia, Mother "blew up, " indicating that she does not believe that she is paranoid.

         During her stay at the Psychiatric Center, Mother was prescribed an antipsychotic medication, which had an "effective response." When the involuntary commitment ended, Mother refused to remain voluntarily hospitalized and was discharged. At that time, Mother's "psychotic symptoms did show some improvement"; however, Mother "continued to have persistent delusional thoughts and also was largely devoid of insight concerning her mental illness and/or need for treatment including medication."

         After Mother's discharge, the Department offered Mother Family Based Safety Services, which included developing a "safety plan" for E.R. Under the safety plan, Mother agreed that E.R. would live with her maternal grandmother, and Mother and Father were not permitted to have unsupervised visits with E.R. However, Mother and Father violated the safety plan on May 4, 2016. On that day, Mother was stopped by the police while she was driving. Father was in the passenger seat, and four-year-old E.R. was sitting unrestrained in the backseat.

         During the stop, the police officer determined that Mother and Father each had an outstanding arrest warrant. The officer also found methamphetamines in the car near Father and a syringe in a backpack in the backseat where E.R. was sitting. Both Mother and Father were arrested at the scene. Mother called CPS and informed a caseworker that she was being arrested. At the direction of the caseworker, the police brought E.R. to the Children's Assessment Center. The Department tried to contact E.R.'s grandmother to care for E.R., but she did not respond. Mother was unable to provide the name of any other suitable caretaker.

         The next day, the Department filed suit, requesting temporary managing conservatorship and seeking emergency orders. Based on the request, the trial court appointed the Department as E.R.'s temporary managing conservator. In its petition, the Department also sought to terminate Mother's and Father's parental rights and to obtain sole managing conservatorship of E.R. if family reunification could not be achieved.

         The Department prepared a family service plan for Mother and for Father. Mother's service plan provided that the Department had the following concerns: "[Mother] is unable to meet [E.R.'s] immediate needs, due to [Mother's] untreated mental health [issues]." "[Mother] is diagnosed as bipolar and also displays paranoid, out-of-control behavior at times. [Mother] has refused treatment for her mental health, and has been arrested for assault." "[Mother] is hostile, at times to DFPS, her attorney and other parties involved, due to her untreated mental health. [Mother] denies the severity of her mental health, denies diagnoses and denies that she has been prescribed medication."

         The family service plan also indicated that the Department was concerned because Mother does "not have stable housing and has a history of criminal involvement." The Department noted that Mother and Father were arrested with E.R. in the car and that methamphetamines were found in the vehicle.

         The service plan set out several tasks and services for Mother to complete before reunification with E.R. could occur, including the following: (1) participate in a psychosocial evaluation and follow all recommendations resulting from the evaluation; (2) participate in a psychiatric evaluation and follow all recommendations resulting from the evaluation; (3) complete parenting classes; (4) participate in a drug and alcohol assessment and follow all recommendations resulting from the assessment; (5) provide urine samples for random drug testing and not test positive for illegal drugs; (6) maintain suitable housing and employment; (7) refrain from engaging in any illegal and criminal activities; and (8) attend all court hearings.

         While the case was pending, in June 2016, Mother assaulted a woman exiting a bank by tackling the woman from behind, grabbing her hair, and hitting her in the face with a closed fist. Mother pleaded guilty to the assault offense and was sentenced to 45 days in jail. However, this was not the first time that Mother was convicted of assault. In 2006, she had pleaded guilty to assault and was sentenced to 75 days in jail.

         In November 2016, Mother committed the third-degree felony offense of evading arrest with a motor vehicle. She pleaded guilty and was placed on deferred adjudication community supervision for three years in January 2017. As a term of her community supervision, Mother was prohibited from using, possessing, or consuming illegal drugs. However, in February 2017, Mother tested positive for cocaine.

         The case was tried to the bench beginning in April 2017 and continuing in May 2017. The Department sought to terminate the parent-child relationship between Mother and E.R., asserting that Mother had engaged in conduct that endangered E.R. and that she had failed to comply with the family service plan. Among the documentary evidence offered by the Department was Mother's family service plan, her medical records from her involuntary psychiatric stay at the Psychiatric Center, the 2006 and June 2016 judgments of conviction for assault, the January 2017 order for deferred adjudication for evading arrest, and Mother's positive drug test from February 2017.

         In conjunction with the documentary evidence, the Department offered the testimony of the police officer who stopped Mother's car in May 2016. The police officer testified that, during the stop, she discovered methamphetamines and a syringe in the car, belonging to Father. The officer also discovered that both Mother and Father had outstanding arrest warrants. Mother and Father were arrested, and E.R. was transported to the Children's Assessment Center.

         The Department also presented the testimony of the assigned caseworker, L. Carroll, who testified that CPS first became involved with the family when it received a report that E.R. had been sexually abused by her father and step-grandfather. Carroll stated that Mother then took E.R. to a domestic abuse shelter where Mother had a physical altercation with another resident, who Mother accused of sexually assaulting E.R. The Department developed a safety plan, and E.R. was placed with her grandmother. Under the safety plan, Mother and Father were not to have unsupervised visits with E.R. However, the parents violated the safety plan at the time Mother and Father were arrested in conjunction with the traffic stop in May 2016.

         Carroll testified that the Department had concerns about Mother's mental health. She stated that Mother was diagnosed by the Harris County Psychiatric Center with schizoaffective disorder. She described Mother's behavior as "delusional" and "erratic" during the case. Carroll stated that Mother was calm during most of her visits with E.R. at CPS's office "but there were a few times that she was upset and would have delusions and just act very erratic and we would have to end the visit." Carroll described one visit as follows:

[W]e were in the bathroom with the child and the mom was alone with the child for . . . not even a full minute, and [Mother] began yelling that the child had been sexually assaulted by the foster parents. . . . I was unable to calm her down. She started trying to call the foster parents on the phone, and then she was holding the child and would not give the child back to me. We were asking her to give the child to us so that we could sit down and talk about it and the mom refused to. Then, eventually, she just kind of pushed the child at me and she was still yelling and very upset and erratic; so, we ended up calling security, and she would not leave the building so we had to call [the Houston Police Department].

         As a result of the psychosocial assessment required by the family service plan, Mother was referred to individual counseling. Mother completed the counseling, but Carroll testified that Mother had not completed the counselor's recommendations. Because the she had concerns about Mother's mental health, the counselor referred Mother to the Mental Health and Mental Retardation Authority (MHMRA). Carroll testified that Mother went ...


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