Opinion
NO. 02-18-00004-CV
05-21-2018
IN THE INTEREST OF R.M. AND S.M., CHILDREN
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-104335-17 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
In this ultra-accelerated appeal, Mother and Father appeal the trial court's order appointing the Department of Family and Protective Services (the Department) as permanent managing conservator of John, the child subject of this appeal, and restricting Mother's and Father's access to John. In one issue, Mother argues that the trial court abused its discretion by appointing the Department as permanent managing conservator of John instead of her. Father's court-appointed appellate attorney has filed a motion to withdraw as counsel and an Anders brief in support of that motion. We will affirm.
Mother and Father are actually John's biological grandparents who adopted John and his siblings several years before this suit.
We use pseudonyms where possible to protect the identity of the minor child in this case.
Mother is only appealing the trial court's order regarding John and not the trial court's order regarding the other minor child subject of this suit. All parties agreed at the trial that the Department would remain permanent managing conservator of John's sibling, who was also part of this suit in the trial below.
II. BACKGROUND
John was thirteen years old at the time of trial. He has end stage renal disease which requires him to attend dialysis treatment three days a week—his kidneys have been removed. Doctors have also prescribed a strict diet and numerous medications in an effort to prevent him from suffering extreme hypertension, something that occurred regularly before John was removed from his parents' care and placed in foster care. Because of Mother's and Father's lack of compliance with doctors' recommendations and with the Department's family service plans, the Department sought permanent managing conservatorship of John. The trial court held a trial on December 14, 2017.
At the trial, Investigator Nicole Weber of Child Protective Services (CPS) testified that she first learned of John and his medical needs when she was contacted by Cook Children's Hospital after Mother brought John to the hospital in April 2015. John was experiencing kidney failure and was ten years old at the time. Weber averred that she spoke with Mother about John and inquired whether Mother had brought John into the special clinic at any time during the previous year. Mother had not. According to Weber, Mother explained that John had been doing well, did not look as sick as usual, and that she had been "using prayer and church" to make John better. Mother also informed Weber that John had not been taking any medication in the past year. While at the hospital, Weber conferred with Mother to ensure that John would be brought to all necessary doctor appointments, take all necessary medications, follow all doctor recommendations, and receive all necessary dialysis treatments. A week later, as John was being discharged, Weber said that she again spoke with Mother and Father concerning John's medical needs. The couple entered into a safety plan with CPS. The safety plan specified that Mother and Father were to follow all doctor recommendations, ensure that John was taking his medications, and ensure that he made it to his dialysis treatments.
Weber averred that her investigation resulted in Mother receiving a "reason to believe" disposition from CPS. Specifically, Mother received a "[m]edical neglect, reason to believe" because John had improperly been off his medications for the previous year and because John had missed numerous appointments to his endocrine and nephrology specialists.
Stacy Lloyd, a Family Based Safety Services (FBSS) worker for CPS, testified that CPS assigned her to John's case in January 2016. Lloyd averred that her assignment was unrelated to the April 2015 hospitalization; rather, CPS referred John's case to FBSS after investigation into possible abuse of John's sibling resulted in doctors expressing concerns to investigators that John's medical needs were not being met. Lloyd said that she met with Mother, Father, and John on January 26, 2016. By Lloyd's account, John was familiar with the medications that he needed to be taking. He also understood what level his blood pressure should be and how to measure his own blood pressure. Having learned from a previous investigator that Mother and Father were supposed to be keeping a blood-pressure log for John, Lloyd said that she asked Mother to see the log. Mother was unable to produce a log, which concerned Lloyd because, given that John's blood pressure was to be measured every four to six hours, Lloyd believed that the log should have been readily available. Lloyd also became concerned because she believed that Mother and Father left John to monitor and take his own medications.
According to Lloyd, a month later, she again visited with Mother and Father because the social worker at Cooks had expressed difficulty in coordinating in-house nursing assistance for John. Lloyd said that Mother and Father agreed to allow the nurse to come to the house to treat John. Many months later, in August 2016, Lloyd met with Mother and Father, a Cooks social worker, and John's nephrologist at Cooks because John had again been admitted to the hospital for high blood pressure. The purpose of this meeting was to address belief that the blood-pressure logs that Mother and Father had presented to doctors had been falsified and because one of John's blood-pressure medications, administered through a patch, was falling off, resulting in John's blood pressure being dangerously high. The meeting was also to address John having had his kidneys removed and his need of a kidney transplant, but John was not eligible for a transplant, Lloyd said, because of "a lack of compliance by the family."
Lloyd averred that she believed that Mother and Father either did not understand the severity of John's conditions or that they did not take them seriously. She also said that she could not determine whether Mother and Father had been administering John's medications appropriately but that at one point Mother and Father were instructed to bring non-used medications to the hospital for appropriate disposal. Doctors also expressed concerns that John was not adhering to his restricted diet, one designed to help control his blood pressure. Despite all of these things, Lloyd said that CPS was preparing to close the case but that she made a recommendation that if CPS received another referral, CPS should intervene and seek a proper placement for John for his safety. CPS received another referral, and John was placed in foster care.
Dr. Jennifer Willis, John's pediatric nephrologist at Cooks, testified that she had been treating John for years. Willis averred that John had end stage kidney disease and severe and/or malignant hypertension. Willis said that she referred John's case to CPS when she, the home health nurse who sometimes visited John's home, and two other doctors had expressed concerns about Mother's and Father's lack of compliance in treating John's conditions.
According to Willis, under her treatment, John was first hospitalized for his kidney disease in April 2015 and while under Mother and Father's care, he had been hospitalized fifteen times between then and January 2017—all related to hypertension. But since his time in foster care, Willis said that John had only been hospitalized once between January and November of 2017, and that hospitalization was in part a scheduled procedure to have a catheter removed.
Willis averred that several, if not most, of the fifteen hospitalizations under Mother and Father's care were preventable. Specifically, Willis said that several of his hospitalizations were due to John not having taken his medications and his fluids not being properly restricted. She also said that she believed that Mother and Father were not properly logging John's blood pressure and that they had delayed taking him to the hospital even after him having experienced seizures. She also averred that at one point Mother and Father did not even have a blood pressure machine and that the home health nurse had to purchase one for John. Willis stated that the last of John's hospitalizations while still in Mother and Father's care resulted in John going temporarily blind and that this could have been prevented had John been brought to the hospital earlier or had been medically compliant with his treatments. Willis averred that on that occasion, John's blood pressure was the worst she had ever seen in him. Willis further averred that Mother and Father had been provided a wealth of assistance to help them keep John medically compliant but that they had still not complied.
By contrast, Willis said that since John had been in foster care, he is clinically much safer, his diet is significantly better, and his blood pressure is improving. She said that in foster care John is "doing awesome," that his "labs look great," and that he is "better and safer because he's not being admitted on[c]e or twice a month" to the hospital. But Willis did state that John sometimes sabotaged his dialysis treatments by drinking too much fluid. Willis surmised that John was either doing this to extend the treatments because he liked the nurses or that he was trying to show that even in foster care he could still end up in the hospital. Willis said that she believed that the parents loved John.
Willis also said that John needed a kidney transplant and that if he remained in his current foster care and the foster parents continued to remain compliant, as they had been since his removal to their care, John could be eligible for a transplant in "a year or so." She further stated that she did not believe that John would ever be eligible for a transplant if he was returned to Mother and Father's care because of their lack of compliance with his treatments and medications. When asked what she believed would have happened to John had he remained in Mother and Father's care instead of having been removed to foster care, Willis averred that her concerns were that John "was going to have an[other] event whether it be another admission, stroke, [or] death." Willis also said that she believed that it would be dangerous to John's health if he were returned to Mother and Father's care and that she would not recommend that he receive a kidney transplant while in their care. She further said that if John ever received a transplant, his medical appointments and treatments would remain intensive.
Willis also testified regarding John's CPS file, which had references to Mother not wanting to give John his blood-pressure medicine but rather wanting the "Lord to handle it." The file also indicated that the home health nurse was rarely permitted into the family's home, that Mother had either presented no blood-pressure log or a fraudulent one to the home health nurse, that Mother preferred to let John sit and calm down rather than give him his medications, and that Mother was uncooperative with keeping scheduled home-health-nurse appointments for John.
Ivan Morales, a conservatorship worker for the Department who is also the family's caseworker, also testified at the trial. Morales said that he attended supervised visits between John and his parents after John had been removed to foster care and that on at least three occasions he had to discuss with Mother and Father the importance of John's diet because Mother and Father would bring John foods that were noncompliant with his diet. Morales recalled how visitations were modified because Mother and Father continued to bring unhealthy food to John.
Morales said that Mother and Father did not follow instructions or listen to medical or Department staff and that he did not believe it was in John's best interest to be returned to their care. By contrast, Morales averred that John was doing "excellent" in foster care and that he was getting the proper medical and dietary care that he needed. He also said that the foster parents have expressed a willingness to care for John as long as needed. Morales did state that John has expressed missing his parents and a desire to return home.
Mother testified through an interpreter. Mother said that she never told Weber that she was leaving John's medical needs to prayer and that what she told Weber is that she was dispensing John's medications according to the doctors' recommendations. She averred that she followed everything that she was told to do by doctors, including feeding John his strict diet. Mother said that the reason she did not have a blood-pressure machine on the occasion she could not produce it for the home health nurse was because a social worker had taken it to be repaired and did not give her a replacement. By Mother's account, she never falsified John's blood-pressure logs and never prevented a home health nurse from coming to her house. She also said that Willis was lying about John's medications being noncompliant.
Father testified that he and Mother had adhered to the doctors' recommendations and that John's frequency of hospitalization while under their care was the "doctor[s'] fault" because the doctors kept continuously changing his medications. Father also averred that he could comply with John's strict diet and medication needs because he himself had received a kidney transplant and was familiar with what was necessary.
The trial court later appointed the Department as John's permanent managing conservator and found that Mother's and Father's access to John should be restricted. This appeal followed.
III. DISCUSSION
A. Mother's Appeal
In one issue, Mother argues that the evidence is legally and factually insufficient to establish, and thus the trial court abused its discretion by, appointing the Department as permanent managing conservator of John above her. We disagree.
1. Standard of Review and Applicable Law
When a trial court determines issues related to conservatorship and possession of and access to a child, its primary consideration must be the child's best interest. Tex. Fam. Code Ann. § 153.002 (West 2014); see id. § 153.001(a)(1) (West 2014) (stating that Texas's public policy is to assure that children will have frequent and continuing contact with parents "who have shown the ability to act in the best interest of the child").
a. Abuse of Discretion
Trial courts have broad discretion to determine what is in the child's best interest. In re P.M., No. 02-14-00205-CV, 2014 WL 8097064, at *30 (Tex. App.—Fort Worth Dec. 31, 2014, pet. denied) (mem. op. on reh'g). A trial court abuses its discretion if it acts arbitrarily and unreasonably or without reference to guiding principles. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011); Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). A trial court also abuses its discretion by ruling without supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But an abuse of discretion does not occur when the trial court bases its decision on conflicting evidence and some evidence of substantive and probative character supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh'g). And an appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620. An abuse of discretion is not shown if a court reaches the right result but for the wrong reason. In re J.M., No. 07-15-00438-CV, 2016 WL 6024279, at *2 (Tex. App.—Amarillo Oct. 13, 2016, no pet.) (mem. op.); Chenault v. Banks, 296 S.W.3d 186, 190 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
Legal and factual sufficiency are not independent grounds of error in conservatorship cases but are relevant factors in deciding whether an abuse of discretion occurred. In re L.W., No. 02-16-00091-CV, 2016 WL 3960600, at *2 (Tex. App.—Fort Worth July 21, 2016, no pet.) (mem. op.). To determine whether the trial court abused its discretion because the evidence was insufficient to support its decision, we consider whether the trial court (1) had sufficient evidence upon which to exercise its discretion and (2) erred in its exercise of that discretion. Id. We conduct the applicable sufficiency review with regard to the first question. Id. We then determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id.
b. Best Interest Considerations and Presumptions
Nonexclusive factors that the trier of fact in a termination case may use in determining the best interest of the child include the following,
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (citations omitted). We consider the above factors as to a child's best interest in conservatorship, possession, and access decisions. See In re D.M., No. 02-16-00473-CV, 2017 WL 1173847, at *1 (Tex. App.—Fort Worth Mar. 30, 2017, no pet.) (mem. op.) (citing Holley and family code section 263.307 with regard to making a conservatorship best-interest determination). These factors are not exhaustive, and some listed factors may be inapplicable to some cases. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
There is a strong presumption that the best interest of a child is served by appointing a parent as managing conservator, but that presumption may be rebutted by showing that such an appointment would not be in the child's best interest because such an appointment "would significantly impair the child's physical health or emotional development." Tex. Fam. Code Ann. § 153.131 (West 2014); see Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990) ("The presumption that the best interest of a child is served by awarding custody to a natural parent is deeply embedded in Texas law."). It is the Department's burden to rebut this presumption. In re A.J.I.L., No. 14-16-00350-CV, 2016 WL 6110450, at *4 (Tex. App.—Houston [14th Dist.] Oct. 18, 2016, pet. denied) (mem. op.). Family code section 263.404(a) uses the same standard for determining when a trial court may "render a final order appointing the [D]epartment as managing conservator of the child without terminating the rights of the parent of the child." Tex. Fam. Code Ann. § 263.404(a) (West Supp. 2017).
To overcome the statutory parental presumption, the evidence must support the logical inference that some specific, identifiable behavior or conduct of the parent, demonstrated by specific acts or omissions, will probably cause significant impairment to the child's physical health or emotional development if the court appoints the parent as managing conservator. In re M.L., No. 02-15-00258-CV, 2016 WL 3655190, at *4 (Tex. App.—Fort Worth July 7, 2016, no pet.) (mem. op.). Acts or omissions that constitute significant impairment include but are not limited to physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral behavior by the parent. Id. Other considerations may include parental irresponsibility, a history of mental disorders, frequent moves, bad judgment, child abandonment, and an unstable, disorganized, chaotic lifestyle that has and will continue to put the child at risk. Id.
c. The Trial Court Did Not Abuse Its Discretion
When assessing the Holley factors and looking at all the evidence the trial court had before it, we conclude that the trial court did not abuse its discretion by appointing the Department as permanent managing conservator above Mother.
As to the desires of John, the record supports that he would like to return home and to Mother's care. Morales testified that John misses his parents, and there is some evidence in the record that John sabotages his health and treatments by over-consuming liquids in an effort to demonstrate that he still will end up in the hospital despite being in foster care. This factor weighs against the trial court's appointing the Department permanent managing conservator of John above Mother.
As to the emotional and physical needs and emotional and physical dangers to John now and in the future, the trial court had before it ample evidence that while John remained in Mother's care, he repeatedly was hospitalized because of noncompliance with his medications, diet, and care. Indeed, during the year prior to John's removal from Mother and Father's care, John was hospitalized fifteen times for hypertension. Willis testified that several of these, if not most, hospitalizations could have been prevented had the parents kept John compliant with his medications, fluid intake, and diet. In one instance, John's lack of compliance with his medical treatments caused him temporary blindness due to extreme hypertension. The trial court also had before it evidence that Mother and Father failed to immediately take John to the hospital even after he experienced seizures. These two factors weigh heavily in favor of the trial court's appointing the Department permanent managing conservator of John above Mother.
As to the parental abilities of those seeking conservatorship, the programs available to assist the foster parents, the Department's plans for John, and his proposed placement, since John's removal from Mother and Father's care, the Department placed John in foster care, where he is doing "excellent," his labs are consistently appropriate, and he has only been hospitalized once during the year he has been in foster care, a hospitalization that was partially planned. Further, both Willis and Morales testified that John's health was significantly improved being in foster care, that John has remained mostly compliant with his treatments and medications, and that Willis is willing to refer John for a kidney transplant if he continues to remain in foster care and compliant. Further, Morales averred that the foster parents are willing to take care of John's medical needs for as long as needed, including the different treatments and medications he will need if he does get a kidney transplant. These factors weigh heavily in favor of the trial court's appointing the Department permanent managing conservator of John above Mother.
As to the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one and any excuses for the acts or omissions, the record indicates that Mother has repeatedly failed to comply with John's medications, diet, and care. Indeed, while under Mother's care, John was hospitalized numerous times prior to being removed to foster care. Willis testified that the majority of these hospitalizations could have been prevented had John remained compliant with his medications and diet. One of these hospitalizations resulted in John suffering from temporary blindness. The trial court had before it evidence that Mother and Father failed to take John to the hospital after he experienced seizures. The trial court also had before it evidence that Mother or Father would falsify his blood-pressure logs, prevent John's home health nurse from accessing him and their home, and that at one point the family did not have a blood-pressure machine even though John's blood-pressure is to be measured every four to six hours. The trial court also had before it evidence that instead of giving John his medications and adhering to his strict diet, Mother believed that letting him sit on the couch and calm down and her praying and attending church would make him healthier. The only explanation Mother gave for these acts of omissions was to deny them and accuse Willis of lying. These factors also weigh heavily in favor of the trial court's appointing the Department permanent managing conservator of John above Mother.
It is a logical inference from all this evidence that Mother severely and irresponsibly neglected John's medical needs by not complying with his medications, diet, and care. These specific acts and omissions by Mother had a great probability to cause significant impairment to John's physical health; indeed, Willis testified that if John remained in Mother's care, he could die. See In re M.L., No. 02-15-00258-CV, 2016 WL 3655190, at *4. Thus, the trial court had before it sufficient evidence to support its ruling and did not abuse its discretion by determining that appointing Mother as permanent managing conservator would not have been in John's best interest and instead that the Department should be appointed permanent managing conservator. See In re L.W., 2016 WL 3960600, at *2. We overrule Mother's sole issue.
B. Father's Appeal
Father appeals the trial court's order appointing the Department as permanent managing conservator of John and restricting Father's access to John. Father's court-appointed appellate attorney has filed a motion to withdraw as counsel and a brief in support of that motion, averring that after diligently reviewing the record, he believes that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 1400 (1967); see also In re K.M., 98 S.W.3d 774, 776-77 (Tex. App.—Fort Worth 2003, no pet.) (reasoning that Anders procedures apply in non-criminal appeals where appointment of counsel is mandated by statute). The brief meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced on appeal. Although given the opportunity, Father did not file a response. The Department filed a letter stating that it would not be submitting a brief.
As the reviewing appellate court, we must independently examine the record to decide whether an attorney is correct in determining that the appeal is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); In re K.R.C., 346 S.W.3d 618, 619 (Tex. App.—El Paso 2009, no pet.). Having carefully reviewed the record and the Anders brief, we agree that the appeal is frivolous. We find nothing in the record that might arguably support Father's appeal. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).
Therefore, we affirm the trial court's order appointing the Department as permanent managing conservator and restricting Father's access to John. But we deny the motion to withdraw because it does not show "good cause" separate and apart from its accurate determination that there are no arguable grounds for appeal. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016), cert. denied, No. 17-7908, --- S. Ct. ---, 2018 WL 1786045 (Apr. 16, 2018); In re C.J., 501 S.W.3d 254, 255 (Tex. App.—Fort Worth, 2016, pets. denied).
"[A]ppointed counsel's obligations can be satisfied by filing a petition for review that satisfies the standards for an Anders brief." P.M., 520 S.W.3d at 27-28.
IV. CONCLUSION
Having overruled Mother's sole issue on appeal, having held that nothing in the record might arguably support Father's appeal, and having denied Father's court-appointed attorney's motion to withdraw, we affirm the trial court's judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: MEIER, KERR, and PITTMAN, JJ. DELIVERED: May 21, 2018