in the Interest of A.M.Q.

14-05-00578-CV | Tex. App. | Oct 10, 2006

Affirmed and Memorandum Opinion filed October 10, 2006

Affirmed and Memorandum Opinion filed October 10, 2006.



In The


Fourteenth Court of Appeals



NO. 14-05-00578-CV







On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 03-08836J



M E M O R A N D U M   O P I N I O N

Maria Contreras[1] appeals the termination of her parental rights with respect to her daughter, A.M.Q., arguing that (1) the evidence is legally insufficient to support the termination, (2) the evidence is factually insufficient to support the termination, (3) the termination violates her federal due process rights, and (4) the trial court erred in its appointment of joint managing conservators of A.M.Q.  We affirm.

A.M.Q. was born on June 1, 2003.  On June 19th, Children=s Protective Services (ACPS@) received a referral from hospital staff alleging Contreras abandoned her child and was mentally unstable.  CPS already had a history of neglectful supervision referrals against Contreras regarding her other child, E.M.  Contreras= sister and her husband, Josephine and Michael Zuniga, took A.M.Q. home from the hospital on June 23, 2003, while CPS conducted its investigation into the June 19th referral against Contreras.  The Zunigas were already caring for Contreras= son, E.M.  Although CPS Caseworker Creisha Lewis-Cotton testified that A.M.Q. was two weeks old when she came into care, CPS did not, at this time, seek temporary conservatorship of A.M.Q. 

Contreras was involuntarily committed to the Harris County Psychiatric Center (AHCPC@) on August 7th.  On August 12, 2003, CPS visited Contreras at HCPC and obtained her signature on a AChild Safety Evaluation and Plan,@ wherein Contreras agreed to: (1) participate in family-based safety services, (2) allow the Zunigas to care for E.M. and A.M.Q. until CPS completed its investigation, and (3) schedule visitation times with the Zunigas.  The bottom of this form contains the following printed text:  AConclusionBIdentify plans for further services.  When appropriate, describe the possible consequences if the family does not carry out this plan successfully.@  The following was written by hand:  AIf Maria Contraras [sic] does not comply possible custody of [E.M.] and [A.M.Q.].@  Contreras was released from HCPC on August 27th.  The Texas Department of Family Protective Services (ATDFPS@) sought temporary managing conservatorship of A.M.Q. on November 11, 2003, after Contreras was arrested for violating her probation.[2]

On October 21, 2004, following a two-day trial, the associate judge orally rendered judgment terminating the parent-child relationship between Contreras and A.M.Q., pursuant to A.M.Q.=s best interests and Texas Family Code section 161.001(E).[3]  However, on November 4, 2004, the associate judge signed a judgment including two additional grounds for terminating Contreras= parental rights.  See Tex. Fam. Code Ann. ' 161.001(E), (N), (O) (Vernon Supp. 2005) (establishing grounds for terminating the parent-child relationship based on child endangerment, constructive abandonment, and failure to comply with a court order).  Contrary to the recommendations of CPS, Child Advocates, and A.M.Q.=s attorney ad litem, the trial court awarded joint managing conservatorship of A.M.Q. to the Zunigas.[4]

We address Contreras= first and second issues together, just as she has  presented them to this court.  In these two issues, Contreras argues the evidence is legally and factually insufficient to support the trial court=s finding she engaged in conduct or knowingly placed A.M.Q. with persons who engaged in conduct that endangered A.M.Q.=s physical or emotional well-being, pursuant to section 161.001(E), or that termination serves A.M.Q.=s best interests.  Contreras does not challenge the trial court=s findings as to subsections AN@ or AO.@  Therefore, even if we found legally or factually insufficient evidence supports termination based on subsection AE,@ Contreras could not successfully challenge the court=s ultimate judgment because two unchallenged grounds remain to support that judgment.  Therefore, we do not address Contreras= evidentiary challenges to subsection AE.@  We focus, instead, on her argument that legally and factually insufficient evidence supports the trial court=s finding that termination is in A.M.Q.=s best interests.

The natural right existing between a parent and child involves fundamental federal Constitutional rights.  Holick v. Smith, 685 S.W.2d 18" date_filed="1985-02-06" court="Tex." case_name="Holick v. Smith">685 S.W.2d 18, 20 (Tex. 1985).  This natural right is Aessential,@ a Abasic civil right of man,@ and is Afar more precious than property rights.@  Id. (quoting Stanley v. Illinois, 405 U.S. 645" date_filed="1972-04-03" court="SCOTUS" case_name="Stanley v. Illinois">405 U.S. 645, 651 (1972)).  A termination decree is final and irrevocable.  Id.  It divests the parent-child relationship for all time, as well as all legal rights, privileges, duties, and powers between the parent and child, except for the child=s right to inherit.  Id.  There must, therefore, be clear and convincing evidence to support termination before a court may involuntarily sever this relationship.  Santosky v. Kramer, 455 U.S. 745" date_filed="1982-02-22" court="SCOTUS" case_name="Santosky v. Kramer">455 U.S. 745, 747 (1982);  Richardson v. Green, 677 S.W.2d 497" date_filed="1984-06-27" court="Tex." case_name="Richardson v. Green">677 S.W.2d 497, 500 (Tex. 1984).  AClear and convincing evidence@ means Athe 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. ' 101.001 (Vernon 2002).  Consequently, termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent.  Holick, 685 S.W.2d 18" date_filed="1985-02-06" court="Tex." case_name="Holick v. Smith">685 S.W.2d at 20B21. 

In a legal sufficiency review, we Alook at all evidence in a light most favorable to the finding and determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding is true.@  In re J.F.C., 96 S.W.3d 256" date_filed="2002-12-31" court="Tex." case_name="In Re JFC">96 S.W.3d 256, 266 (Tex. 2002).  We assume disputed facts were resolved in favor of the movant if it is reasonable to do so, and we disregard all evidence that could be reasonably disbelieved.  Id.  This does not mean we disregard all evidence that does not support the findingCdoing so could skew our analysis.  Id.  If we find no fact finder could have formed a firm belief or conviction that its finding is true, we must conclude the evidence is legally insufficient.  Id.

In a factual sufficiency review, we give due consideration to evidence the jury could reasonably have found to be clear and convincing, and we examine whether this evidence is such that a reasonable fact finder could form a firm belief or conviction the allegations are true.  Id.  We consider whether the disputed evidence is such that the jury could reasonably resolve it in favor of its finding.  Id.  If, in light of the entire record, the disputed evidence that cannot have reasonably been credited in favor of the finding is so significant that the fact finder could not have reasonably formed a firm belief or conviction in favor of termination, we must find the evidence is factually insufficient.  Id.

There is a strong presumption that a child=s best interests are served by staying with the natural parent, and the burden is on the State to rebut that presumption.  In re U.P., 105 S.W.3d 222" date_filed="2003-04-17" court="Tex. App." case_name="In Re UP">105 S.W.3d 222, 230 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).  For the trier of fact to determine whether this presumption has been rebutted, it must consider many issues, including:  (1) the child=s desires, (2) the present and future emotional and physical needs and dangers to the child, (3) parenting abilities involved, (4) programs available to help the parent, (5) the State=s plans for the child and the stability of the proposed placement, (6) any of the parent=s acts or omissions indicating the relationship is not a proper one, and (7) whether there is any excuse for those acts or omissions.  Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976).  This list is not exhaustive, and evidence is not required on each listed factor.  U.P., 105 S.W.3d 222" date_filed="2003-04-17" court="Tex. App." case_name="In Re UP">105 S.W.3d at 230.  With these factors in mind, we look to whether clear and convincing evidence supports the trial court=s finding that termination is in A.M.Q.=s best interests.

A.M.Q. was seventeen months old at the time of judgment, and was too young to express her wishes.  At trial, A.M.Q. was described as Aon target,@ happy and active, with no special needs.[5]  Therefore, A.M.Q. requires what any normal toddler requires from a caregiverCincluding a safe and stable home environment.  See In re M.S., 115 S.W.3d 534" date_filed="2003-07-03" court="Tex." case_name="In Re MS">115 S.W.3d 534, 548 (Tex. 2003) (stating a child is benefitted by preventing undue delay from adoption into a stable home or return to the parents).

Despite being diagnosed as bipolar in March of 2000, Contreras believes she is Anot mental@ and does not take medication for her disorder.  Contreras was involuntarily committed to HCPC on three occasions within the four years prior to trial, each commitment spanning from between two and twenty days long.  HCPC records[6] show Contreras was admitted involuntarily in late March of 2000, after her family reported that she had been pacing the floor all night, talking to herself, and saying that people were Aafter her.@[7]  She was held for two days, and was observed to be well-groomed, cooperative, and as having Asome grandiose beliefs@ and a Agenerally logical@ thought process.  The physician determined she was not aggressive or combative, and did not meet the criteria for involuntary commitment.  She was diagnosed with bipolar disorder and was Astrongly advised@ to take her medications and to follow up with state psychiatric services through the Harris County Mental Health and Mental Retardation Authority (MHMRA).

Contreras was involuntarily committed a second time on Christmas day of 2001, after allegedly threatening her brother with a knife, being hyperactive with Apressured@ speech, and experiencing paranoid delusions.  She had recently delivered her first child (A.M.Q.=s older brother, E.M.).  Contreras was held for eight days, and her condition upon release was described as follows:

She is still hypomanic, but less intrusive and giggly.  Her social judgment is intact.  Her prognosis is guarded due to less than perfect insight and past history of noncompliance with medication.

Contreras= third involuntary commitment lasted for twenty days, from August 7B27, 2003, just two months after A.M.Q.=s birth.  Contreras= brother filed a mental health warrant alleging she was verbally and physically aggressive, argumentative, that she punched holes in the walls, broke windows, and was incapable of taking care of herself.[8]  Contreras was placed on extended care at HCPC due to an unsatisfactory response to initial treatment.  At discharge, she was compliant with her medications and still exhibited Ahypomanic symptoms with mild flight of ideas and poor insight into her illness.@ 

At each discharge from HCPC, Contreras was advised to take her prescribed medication.  At trial, when asked whether she was taking any medications, Contreras replied, Aabsolutely not.@  When asked whether she knew if she has been diagnosed with a psychological Adeficiency,@ she replied, ABy jail doctors, Harris County jail doctors against my will.  They have to write diagnosis [sic] that I don=t know about.  I don=t even recall anything.@  She also testified she has never been prescribed medication and is not currently under a psychiatrist=s care because she is Anot mental.@ 

During trial, Contreras spoke out of turn at least twelve times.  She was escorted from the courtroom twice, and was constantly reprimanded by the trial judge (including threats of contempt of court, lockup and removal from the courtroom).  Her testimony was disjointed and rambling, as exemplified by the following excerpts.  After testifying that she lives at home with her mother and brother, the following exchange occurred:

ATTORNEY: And how old is your brother David?

CONTRERAS:        My brother is probably B I don=t really know too much of him because I=m very to myself and to my children.


JUDGE:                 What did you say?

CONTRERAS:        I=m to myself.  I don=t get into people=s business.

JUDGE:                 No.  The question was how old is your brother.  Isn=t that what your question was?

ATTORNEY: Yes, your Honor.

CONTRERAS:        I don=t know much about my brother.

The following exchange occurred when she was asked whether she received probation for aggravated assault:

CONTRERAS:        Can I ask you a question?  Was she white or Hispanic?  Is she a white female?

JUDGE:                 No.  You can=t ask a question.  How many times have I told you that.  Answer the question.

CONTRERAS:        Can B she needs to answer me if she was a white female that she=s being racist, biased.

At one point, when an attorney stated he was not clear in phrasing a question to Contreras, the trial judge stated:  AWell, none of us are very clear on any of [Contreras=] answers.@ 

When questioned about whether she signed the AChild Safety Evaluation and Plan@ agreeing to allow the Zunigas to care for her children until CPS completed its investigation, Contreras stated, AForced by CPS, yes.  Forced by CPS.  Didn=t have a choice, yes.  Forced by CPS behind my back.@  Contreras said she signed the agreement Abehind [her] will@ and was forced to sign Aor my children would be B my children were going to be placed in a foster home and I didn=t want my children to be taken into a foster home when I signed.@  CPS caseworker Creisha Lewis-CottonCone of three different caseworkers on this case between June of 2003 and the October of 2004 trialCcorroborated Contreras= statement to some extent when she testified that the prior caseworker Aobviously@ must have visited Contreras at HCPC in order to obtain her signature.  Cotton explained that CPS procured this Plan in order to Amonitor@ the situation while Contreras participated in services, and that the State only sought custody of A.M.Q. after Contreras was arrested for violating her probation, her noncompliance with the Plan by not taking parenting classes (Contreras had completed these classes at the time of trial), and by her showing up uninvited at the Zunigas= home several times.[9]

After reviewing the record, we find there is clear and convincing evidence that termination is in A.M.Q.=s best interests.  Contreras= mental instability, her refusal to accept her past diagnosis or to consistently take her medication, and her history of violence, threats and paranoia preceding her prior involuntary commitments reveal a high risk of danger to A.M.Q. if returned to her mother.  See In re E.L.T., 93 S.W.3d 372" date_filed="2002-09-12" court="Tex. App." case_name="In the Interest of E.L.T.">93 S.W.3d 372, 375B76 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (stating parent=s mental illness may serve as basis for involuntary termination of parent-child relationship); C.G.V. v. Tex. Dept. of Human Res., 663 S.W.2d 871" date_filed="1983-12-01" court="Tex. App." case_name="C.G v. v. Texas Department of Human Resources">663 S.W.2d 871, 874 (Tex. App.CBeaumont 1983, no writ) (finding termination of parental rights was supported by evidence that mother had frequently engaged in violent criminal conduct, had twice attempted suicide, had been in and out of mental health institutions since age 15, and was unable to care for children); see also Wetzel v. Wetzel, 715 S.W.2d 387, 390 (Tex. App.CDallas 1986, no writ) (reversing termination when evidence showed mental illness was cured).  Even though Contreras completed a parenting course, a CPR infant certification, called for an appointment for a psychiatric evaluation required by CPS, lived in a Astable@ home with her mother and brother, and participated in counseling with a priest, these facts do not overcome the real threat of physical and emotional harm to A.M.Q. in light of the well-known consequences of Contreras= refusal to accept her diagnosis or to take her medications.  Furthermore, although there are programs to help Contreras through MHMRA, such programs can be of no help when Contreras does not admit she needs such assistance.  We overrule Contreras= first and second issues.

In Contreras= third issue, she contends the trial court violated her right to due process by ordering termination of her parental rights.  Contreras argues that, because there was insufficient evidence to terminate her parental rights, the trial court violated her due process rights by ordering termination.  Because we have already found that legally and factually sufficient evidence supports termination (and because Contreras does not contest termination grounds AN@ or AO@), we overrule Contreras= third issue.

In her fourth issue, Contreras argues the court erred by appointing the Zunigas as joint managing conservators of A.M.Q. because the Zunigas failed to provide legally and factually sufficient evidence that such appointment was in A.M.Q.=s best interests.  Contreras= entire argument rests on the contention that the Zunigas cannot be appointed joint managing conservators because there was insufficient evidence with which to terminate Contreras= parental rights.  As discussed above, we have already found legally and factually sufficient evidence supports termination.  We therefore overrule Contreras= fourth issue.

Having overruled each of Contreras= issues on appeal, we affirm the trial court=s judgment.





/s/      J. Harvey Hudson






Judgment rendered and Memorandum Opinion filed October 10, 2006.

Panel consists of Justices Anderson, Hudson, and Guzman.

[1]  Contreras is also known as Mary Virginia Contreras.

[2]  Contreras pled guilty to aggravated assault on January 28, 2000, and received a five-year probated sentence (she was accused of pointing a handgun at a neighbor while stating that she knew how to use the weapon).  Although Contreras contends on appeal that records of her guilty plea were Aclearly hearsay,@ she admits they were entered into evidence without objection.  The CPS caseworker, Creisha Lewis-Cotton, testified that, from her review of the case file and from her discussions with a prior caseworker, she understood that Contreras was arrested in November of 2003, for violating her probation.  Contreras testified that she did not violate her probation, rather, she Ahalf completed it successfully.@  Contreras stated that, although ACPS Reyna is the one who violated me because she called it in[,]@ Contreras Acompleted@ her five-year probation in Atwo years and a half.@

[3]  See Tex. Fam. Code Ann. ' 161.001 (Vernon Supp. 2005) (allowing termination of the parent-child relationship if the court finds clear and convincing evidence that the parent has committed one of the statute=s enumerated acts and that termination is in the child=s best interests).

[4]  A.M.Q. was removed from the Zunigas= home in January of 2004, and placed in foster care after Josephine Zuniga had to be removed from a court hearing involving termination of parental rights to A.M.Q.=s brother, E.M.  Following the outburst, that court ordered all children in State custody who were housed with the Zunigas be removed into foster care.  After this order (but possibly before Josephine Zuniga was made aware of the order), Josephine Zuniga took A.M.Q. to Mexico for several days to attend a relative=s funeral without contacting TDFPS to obtain permission.

[5]  Although witnesses testified that A.M.Q. had delays (she was unable to sit on her own or crawl at seven months of age), everyone agreed these delays were resolved at the time of trial.  There was conflicting testimony as to whether or not A.M.Q. was born prematurely.

[6]  Although Contreras notes in her appellate brief that these records were admitted over the objection of counsel, she does not challenge their admission on appeal.

[7]  Contreras has always lived at home with her parents and brother.  Her father passed away after her first involuntary commitment.

[8]  Although HCPC records note allegations that Contreras was incapable of caring for herself or for her children, the record indicates that both of Contreras= children were in state custody at this time.

[9]  Although Cotton and the court-appointed child advocate both claim Contreras only had one visit with A.M.Q., they also claim she showed up unannounced at the Zunigas= home repeatedly in order to visit with A.M.Q.  Contreras testified that she visited with her children at the Zunigas= home before her arrest in November, and that she was allowed thereafter to see her children Awhenever Ms. Cotton said or I would go to jail . . . .@