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In re R.M.

Court of Appeals of Texas, Fourth District, San Antonio

August 7, 2019

IN THE INTEREST OF R.M., a Child

          From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2018PA01262 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          SANDEE BRYAN MARION, CHIEF JUSTICE

         Appellant Tiffany files this accelerated appeal from the trial court's order terminating her parental rights to her child, R.M. Tiffany challenges the sufficiency of the evidence to support the trial court's finding that termination is in R.M.'s best interest. Because we conclude the evidence is legally and factually insufficient to support the trial court's best interest finding, we reverse the trial court's order of termination and remand the cause for a new trial. Because Tiffany does not challenge the appointment of the Texas Department of Family and Protective Services ("the Department") as managing conservator, we affirm that portion of the trial court's order.

         Background

         The Department removed R.M. from Tiffany's custody based on allegations that while Tiffany and R.M. were living at Haven for Hope shelter in San Antonio, Tiffany "was cursing and yelling at" R.M., R.M. was "seen wearing dirty clothes, dirty diapers," R.M. was seen "walking down the hallway by himself with Tiffany not around," and "there [were] also concerns with [Tiffany's] mental health." There is no evidence in the record indicating who made these allegations or whether and, if so, how the Department investigated them.

         The Department filed a petition in June 2018 to terminate Tiffany's and the alleged father's parental rights to R.M. On April 2, 2019, the trial court held a bench trial. At the time of trial, R.M. was two years old. The alleged father did not appear for trial, and Tiffany appeared with counsel and announced "ready." The Department elicited testimony from two witnesses, and Tiffany and her mother also testified.

         A. The Department's first witness

         The Department's first witness, Gina Evans, testified by telephone from Houston. Evans testified she is familiar with Tiffany because Tiffany "came into my agency to complete a court mandated psychological evaluation." There is nothing in the record, however, establishing Evans' job title, qualifications, or employer, nor whether Evans personally performed the psychological evaluation.

         Evans testified she prepared a report, but it was not offered or admitted into evidence. According to Evans, Tiffany's "report was somewhat inconclusive, but she had major depressive disorder and post-traumatic stress symptoms."[1] Evans did not testify whether she or anyone else actually diagnosed Tiffany with any particular mental illness. Instead, referring to Tiffany's symptoms, the Department asked Evans: "[H]ow could these diagnoses impact [Tiffany's] life?" Evans responded: "They can impact [Tiffany's] life by poor symptom management. And if her symptoms are poorly managed, then they would impact her judgment and her decision making." Evans agreed poor symptom management "could interfere with [Tiffany's] ability to parent a young child." Evans also testified that "if [Tiffany] does not follow [Evans'] recommendations" to have psychiatric care and appropriate medication management and monitoring, then Evans would have "severe concerns about [Tiffany's] parenting." Nothing in the record establishes that Evans communicated her recommendations to Tiffany.

         Also, nothing in the record demonstrates whether Evans has any personal knowledge of Tiffany's failure to manage her symptoms. While Evans testified Tiffany "didn't have a habit of taking [medication] consistently," nothing in the record establishes that Tiffany had been prescribed any particular medication that she refused to take. Evans testified Tiffany "didn't seem to understand the severity that her symptoms could play out in her decision making," explaining: "In discussing her decision making, and instability, and moving, and thought process, [Tiffany] did not think to articulate the importance of staying stable on medication, and the importance of making sound decisions, and the importance of staying on a regular medication regimen, and that being an aid to making sound decisions." Evans did not testify whether she or anyone else explained to Tiffany "the importance of staying on a regular medication regimen." Evans acknowledged that Tiffany stated she was seeing a psychiatrist.

         B. The Department caseworker

         The Department's second witness was the caseworker assigned to R.M.'s case approximately four months after his removal. The caseworker testified she prepared a service plan for Tiffany that required her to "engage in parenting, individual therapy, a psychological, maintain her mental health needs, maintain contact with the caseworker, randomly drug test, and maintain stable housing and employment." Tiffany submitted to a psychological examination in February 2019 but did not provide proof that she completed parenting classes and individual therapy. Tiffany was compliant with drug testing before September 2018 and tested negative each time, but she refused to submit to urinalysis in September and November 2018. There is no other evidence in the record indicating Tiffany used or was suspected of using illegal drugs before or during the pendency of this case. At the time of trial, Tiffany was living at Star of Hope shelter in Houston. While the case was pending, Tiffany also resided at Haven for Hope, a boyfriend's home in Universal City, and the home of a relative in Houston. Tiffany moved to Houston in or around November 2018 and had only three of her allowed weekly visits with R.M. between then and trial. The caseworker testified she was concerned Tiffany was pregnant and would not be permitted to live with more than one child at Star of Hope. Tiffany was not employed at the time of trial and had not been employed during the pendency of the case.

         The caseworker testified if R.M. were returned to Tiffany's custody, she believes "there's a danger of [R.M.] being left alone, with [Tiffany's] inconsistency with her treatment, not being able to take care of herself or [R.M.], taking him to his doctors' appointments, dental appointments, therapy appointments. [Tiffany's] ability to successfully manage [R.M.'s] basic needs, such as housing, employment." The caseworker opined: "[W]ith [Tiffany's] decision-making ...


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