In re Interest of M.W.

IN THE INTEREST OF M.W., A CHILD

NUMBER 13-19-00593-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

April 16, 2020

On appeal from the County Court at Law No. 5 of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Hinojosa

Memorandum Opinion by Justice Hinojosa

Appellant L.W. (Mother) appeals a judgment terminating her parental rights to her child M.W.¹ In three issues, Mother argues that: (1) her due process rights were violated because she did not appear for part of the termination trial; (2) her service plan was nottailored for a mentally ill parent, in violation of the equal protection clause; and (3) there is legally insufficient evidence supporting termination.² We affirm.

I. BACKGROUND

A. Petition and Removal

Appellee, the Department of Family and Protective Services (the Department), filed a petition seeking to terminate Mother's parental rights to her newborn son M.W. The petition was accompanied by an affidavit in support of removal alleging that Mother's mental health issues prevented her from caring for a newborn child.

B. Mother's Presence at Trial

When the case was called for trial on August 26, 2019, Mother was not present. The trial court discussed with the parties whether to continue the termination hearing. During this discussion, Mother appeared in the courtroom, and a brief recess followed. When the hearing resumed, the parties announced that they reached an agreement whereby the bench trial would commence that day and then recessed for thirty to forty-five days in light of a recently prepared psychosocial assessment which indicated potential family placements for M.W. The trial court indicated its approval, and the trial commenced. After the examination of the first witness, the trial court recessed the hearing. When the trial resumed on October 10, Mother was not present. However, her attorney did not object to proceeding.

C. Trial Record

Nelva Perez, Mother's conservatorship caseworker, testified that the Department removed M.W. from Mother's care due to an allegation that Mother was experiencing mental health issues. Through Perez, the Department introduced the affidavit in support of removal and Mother's psychological evaluation, which the trial court admitted over Mother's objection.³ The trial court also admitted the family service plan prepared by the Department for Mother, Mother's mental health treatment records, and a prior termination decree.

In the service plan, the Department identified the following reasons for removing M.W. from Mother's care: Mother's current mental health issues; a pattern of "maltreatment" resulting in five previous terminations of her parental rights; and M.W.'s vulnerable condition. Specifically, the plan noted that Mother was diagnosed with bipolar disorder, schizophrenia, and depression, and that she was suffering from delusions. Forinstance, Mother believed that she was being monitored by a camera connected to her thumb and that M.W. was talking to her from the womb. The plan noted that M.W. was born with bilateral retinoblastoma, a cancer of the eyes, which contributed to his vulnerability. This information was gathered through Mother's interactions with Department and mental health caseworkers.

The service plan required Mother to perform the following tasks: provide the Department with a psychiatric evaluation report from MHMR⁴ and continue attending appointments with her mental health providers; attend and successfully complete an individual counseling program and follow through on counselor recommendations; cooperate with random drug screens; participate in supervised visitation; actively participate in dialogue with the Department caseworker; and pay minimum wage child support.

Perez testified that Mother completed a psychiatric evaluation, but she failed to complete the program that was recommended as a result of the evaluation. Perez testified that Mother visited M.W. only twice during the pendency of the case, despite having the opportunity for weekly visits in the months following removal and monthly visits when M.W. was moved from Corpus Christi, Texas to his current foster placement in Houston, Texas. The Department provided Mother bus passes to attend the visits in Houston. On one occasion, Perez drove Mother to Houston to visit M.W. Mother made varying excuses for missing scheduled visits, including that she had forgotten, missed her alarm, or had car problems. According to Perez, Mother made no efforts to learn about M.W.'s condition and care. Perez stated that Mother's last known residence was a motel.

Perez testified that M.W. was currently placed in foster care with P.F. and her husband M.F. The couple previously adopted M.W.'s half-sibling. Perez maintained that the couple has provided for M.W.'s basic needs and that it was in M.W.'s best interests to terminate Mother's parental rights.

Mother's mental health treatment records from Behavioral Health Center of Nueces County indicated that Mother was being treated for schizoaffective disorder and depression. Mother reported that she was "still hearing things, seeing things." The records indicate Mother has received inpatient treatment at Behavioral Health Center on thirty-one occasions. Mother reported to her caseworker that "there was a camera placed inside her thumb by a Lieutenant William, who raped her at age 4, and sees her every move."

P.F., M.W.'s foster mother, testified that, along with M.W., she lives with her husband M.F. and her adopted son and M.W.'s half-sibling, N.W. At the time of trial, M.W. had resided in her home for over a year. P.F. stated that M.W. was diagnosed with retinoblastoma when he was two months old, which resulted in the removal of M.W.'s right eye. M.W. received several rounds of chemotherapy treatment for the condition. P.F. stayed with M.W. for thirty days in the hospital during his treatment. P.F. stated that M.W. receives weekly speech and physical therapy, and bi-weekly occupational therapy. She explained that M.W., who was a year old at the time of trial, will require surgery in the future for a condition called hypospadias.

P.F. testified that M.W. is "intellectually challenged" and he requires "constant therapy." M.W. receives early childhood intervention services to prepare him for preschool. P.F. stated that Mother has not contacted her to ask about M.W., and Mother has only visited him once in the past year. P.F. and her husband intend to adopt M.W.

D. Trial Court's Ruling

The trial court signed an order terminating Mother's rights, finding, as statutory grounds for termination, that Mother had:

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;

(M) had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state; [and]

(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child[.]

See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (M) & (O). The trial court further found that termination of Mother's parental rights was in M.W.'s best interests. See id. § 161.001(b)(2). This appeal followed.

II. DUE PROCESS

In her first issue, Mother asks the following: "What is required of the trial court to sustain a finding that a mentally ill parent 'failed to appear' status [sic] thus waiving due process rights[?]" We construe Mother's issue as arguing that her due process rights were violated when the second half of the termination trial was held in her absence.

We first note that, beyond the quoted language above, Mother provides no further argument or authorities. Rule 38.1 of the Texas Rules of Appellate Procedure requires that an appellant's brief "contain a clear and concise argument for the contentions made, with appropriate citations to authorities." TEX. R. APP. P. 38.1(i). "Bare assertions of errorwithout argument or authority waive error." In re J.A.M.R., 303 S.W.3d 422, 425 (Tex. App.—Dallas 2010, no pet.).

In addition, Mother did not raise the issue in the trial court by a timely request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1). A parent's right to retain custody of her children is a constitutionally protected liberty interest that must be afforded procedural due process. In re J.P.-L., 592 S.W.3d 559, 574-75 (Tex. App.—Fort Worth 2019, pet. denied). However, complaints about due process violations must be raised and ruled on in the trial court in order to be preserved for appeal. In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003); see TEX. R. APP. P. 33.1(a). We also note that Mother's mere absence without a reasonable excuse would not entitle her to a continuance of the trial. See Ngo v. Ngo, 133 S.W.3d 688, 693 (Tex. App.—Corpus Christi-Edinburg 2003, no pet.); see also In re F.R.G., No. 12-18-00131-CV, 2018 WL 5812532, at *8 (Tex. App.—Tyler Nov. 5, 2018, no pet.) (mem. op.). Here, Mother's counsel did not provide a reasonable excuse for her absence, move for a continuance, or otherwise object to proceeding in Mother's absence. Therefore, she has not preserved this issue for appellate review. We overrule Mother's first issue.

III. EQUAL PROTECTION

In her second issue, Mother argues the following: "The trial court erred because a mentally ill parent is entitled to tailored service plans and should be judged using a balancing test of behavior when stable vs. behavior unmedicated: failing to do so is a violation of of [sic] the equal protection clause."

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