NUMBER 13-13-00032-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF C.R.T.H., A CHILD

On appeal from the County Court at Law No. 1

of Calhoun County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Longoria

Memorandum Opinion by Justice Longoria

This is a termination of parental rights case involving both parents. See TEX.

FAM. CODE ANN. § 161.001 (West Supp. 2011). By one issue, appellant A.V. (“mother”) 

challenges the sufficiency of the evidence to support the trial court’s finding that her 

mental illness will render her unable to provide for the needs of her biological son, C.H., 

until his eighteenth birthday. By two issues, appellant J.A (“father”) argues that the trial 

court’s termination order must be reversed for the following reasons: (1) termination of 

his parental rights violates his right to equal protection under the law pursuant to the 
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Fourteenth Amendment; and (2) the evidence was insufficient to prove that his mental 

illness will render him unable to provide for the needs of his biological son, C.H., until 

his eighteenth birthday. For the reasons set forth below, we affirm. 

I. BACKGROUND

On August 5, 2011, the State of Texas, through its Department of Family and 

Protective Services (“the Department”), filed a petition to terminate the parental rights of 

father and mother to “C.H.,” who was less than six months old at the time of the filing. 

Father and mother came to the Department’s attention after the unexplained and

unexpected death of the couple’s other, slightly older child, “Crow.” On August 4, 2011, 

Crow was discovered lifeless in his crib by father and mother in their rented home, 

which was warehouse or office space converted to a living space. Police investigated 

father and mother, but neither has been arrested or charged with any crime related to 

Crow’s death. Crow was one and a half years old at the time of his death. The State 

suspects that Crow died from starvation, dehydration, or neglect of other vital needs, but 

the medical examiner listed the cause of death as “undetermined.” Father and mother 

argue that the circumstances of Crow’s death are consistent with that of infants who die 

as a direct result of sudden infant death syndrome. 

The Department removed C.H., who was four to five months old, due to the 

circumstances involving Crow’s death. The Department’s special investigator, Brandon 

Avant, believed that C.H. was not being sufficiently cared for by father and mother. He 

described their home as being in disarray, with dirty dishes, piles of clothes, bottles, a 

soiled mattress, and a foul odor. C.H. was described as having a sour odor, with dirty 

fingernails and toenails. With regard to Crow’s death, the Department’s special 
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investigator reported that mother had a flat affect and was not crying or showing any 

emotion. Mother appeared to be in a state of shock, while father was crying and 

vomiting. Both parents had to be awakened several times while law enforcement and 

the Department were investigating Crow’s death, which was a “huge concern for the 

Department.” The Department was also concerned with the “poor condition” of C.H. 

and “that the home environment seemed inappropriate.”

Both parents agreed to service plans. Father did not complete anger 

management counseling, allegedly because he was unable to pay the $50 enrollment 

fee. On appeal, father notes that he was indigent throughout this cause and was 

appointed counsel at trial and on appeal. Other than the failure to complete anger 

management classes, father states that he completed all the requirements of his service 

plan. On appeal, mother states that she completed all required classes for her service 

plan and visited C.H. when permitted by the Department. However, at the termination 

hearing, the Department offered testimony that mother had not successfully 

demonstrated parenting skills during her parent-child visits with C.H. and had not 

bonded with C.H.

At the termination hearing, the Department offered testimony from Wendy Orsak, 

a licensed professional counselor, that mother has been diagnosed with schizotypal 

personality disorder, a type of schizophrenia. Orsak testified that as a result of her 

mental condition, mother has very little ability to attach to other people and form strong 

bonds outside the immediate family. Orask voiced concern about mother’s inability to 

bond with C.H. and other oddities in her behavior. Orask testified that she is not an 
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expert in the treatment of schizotypal personality disorder. Orask also testified that 

mother’s personality disorder does not include violent behavior. 

The Department also offered testimony from Orask that father suffers from 

mental illness, specifically, schizoaffective disorder. According to Orask, father also has 

“alternate personalities,” which is “concerning” and a “serious mental-health issue.” 

Orask testified that this condition is extremely rare and renders father “incapable of

raising his children.” Furthermore, according to Orask, father’s mental-health issues 

“create safety issues for his children.” Although Orask testified that father had a good 

attitude with his therapist and that he was making progress on his mental issues in 

therapy, Orask also explained that “schizophrenia doesn’t go away” and “[t]here’s no 

magic pill.”

On December 28, 2012, the trial court entered an order terminating mother and 

father’s parental rights. In its order, the trial court stated the following with respect to 

mother’s parental rights:

The Court finds by clear and convincing evidence that termination of the 

parent-child relationship between [mother] and . . . [C.H.] is in the child’s 

best interest.

Further, the Court finds by clear and convincing evidence that [mother] 

has:

knowingly placed or knowingly allowed the child to remain in 

conditions or surroundings which endanger the physical or 

emotional well-being of the child;

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;

failed to comply with the provisions of a court order that specifically 

established the actions necessary for the mother to obtain the 

return of the child who has been in the permanent or temporary 
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managing conservatorship of the Department . . . 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;

The Court finds that [mother] has a mental or emotional illness or a mental 

deficiency that renders the mother unable to provide for the physical, 

emotional, and mental needs of the child.

The Court finds by clear and convincing evidence that the illness or 

deficiency, in all reasonable probability, will continue to render the 

mother unable to provide for the child’s needs until the 18th birthday 

of the child.

The Court finds that the Department has been the temporary or 

permanent managing conservator of the child for the six months 

preceding the date of the termination hearing . . . .

The Court finds that the Department made reasonable efforts to return the 

child to the mother.

In its order, the trial court made the same findings and conclusions with respect to 

father’s parental rights. This appeal ensued.

II. APPLICABLE LAW

Under Texas law, the parent-child relationship may be terminated upon a finding 

supported by clear and convincing evidence that the parent engaged in certain conduct 

specified in section 161.001 and termination is in the child’s best interest. In re C.H., 89 

S.W.3d 17, 23 (Tex. 2002). Both elements must be established; termination may not be 

based solely on the best interest of the child as determined by the trier of fact. Tex.

Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). 

Section 161.001 of the Texas Family Code provides that a court may terminate 

the parent-child relationship if it determines termination is in the child’s best interest and 

the parent has done one of the following:
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(D) knowingly placed or knowingly allowed the child to remain in 

conditions or surroundings which endanger the physical or emotional wellbeing of the child;

(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;

. . . 

(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[.]

TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (O) (West Supp. 2011).

Additionally, section 161.003(a) provides for termination as follows:

The court may order termination of the parent-child relationship in a suit 

filed by the Department of Protective and Regulatory Services if the court 

finds that:

(1) the parent has a mental or emotional illness or a mental 

deficiency that renders the parent unable to provide for the 

physical, emotional, and mental needs of the child;

(2) the illness or deficiency, in all reasonable probability, proved by 

clear and convincing evidence, will continue to render the parent 

unable to provide for the child’s needs until the 18th birthday of the 

child;

(3) the department has been the temporary or sole managing 

conservator of the child of the parent for at least six months 

preceding the date of the hearing on the termination held in 

accordance with Subsection (c);

(4) the department has made reasonable efforts to return the child 

to the parent; and

(5) the termination is in the best interest of the child.

Id. § 161.003(a) (West 2008).
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III. STANDARD OF REVIEW

The Texas Supreme Court outlined the procedure for conducting a legal 

sufficiency review of parental-rights termination cases as follows:

In a legal sufficiency review, a court should look at all the evidence in the 

light most favorable to the finding to determine whether a reasonable trier 

of fact could have formed a firm belief or conviction that its finding was 

true. To give appropriate deference to the factfinder’s conclusions and the 

role of a court conducting a legal sufficiency review, looking at the 

evidence in the light most favorable to the judgment means that a 

reviewing court must assume that the factfinder resolved disputed facts in 

favor of its finding if a reasonable factfinder could do so. A corollary to this 

requirement is that a court should disregard all evidence that a reasonable 

factfinder could have disbelieved or found to have been incredible. This 

does not mean that a court must disregard all evidence that does not 

support the finding. Disregarding undisputed facts that do not support the 

finding could skew the analysis of whether there is clear and convincing 

evidence.

If, after conducting its legal sufficiency review of the record evidence, a 

court determines that no reasonable factfinder could form a firm belief or 

conviction that the matter that must be proven is true, then that court must 

conclude that the evidence is legally insufficient. Rendition of judgment in 

favor of the parent would generally be required if there is legally 

insufficient evidence.

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (citations omitted); see also In re J.L., 163 

S.W.3d 79, 85 (Tex. 2005) (stating that the reviewing court must “look at all the 

evidence in the light most favorable to the finding to determine whether a reasonable 

trier of fact could have formed a firm belief or conviction that its finding was true”).

In a factual sufficiency review, “[w]e must determine whether, on the entire 

record, a fact-finder could reasonably form a firm conviction or belief that the parent 

violated a provision of section 161.001(1) and that the termination of the parent’s 

parental rights would be in the best interest of the child.” In re M.C.T., 250 S.W.3d 161, 
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168 (Tex. App.—Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d at 28). Under 

this standard, we must consider:

[W]hether the disputed evidence is such that a reasonable factfinder could 

not have resolved the disputed evidence in favor of its finding. If, in light 

of the entire record, the disputed evidence that a reasonable factfinder 

could not have credited in favor of the finding is so significant that a 

factfinder could not reasonably have formed a firm belief or conviction, 

then the evidence is factually insufficient.

In re J.F.C., 96 S.W.3d at 266 (citations omitted). An appellate court’s review must not 

be so rigorous that the only findings that could withstand review are those established 

beyond a reasonable doubt. See In re C.H., 89 S.W.3d at 26.

IV. MOTHER’S APPEAL

In one issue, mother argues that the evidence is insufficient to support the trial 

court’s finding that her mental illness will render her unable to provide for C.H.’s needs 

until his eighteenth birthday. See TEX. FAM. CODE ANN. § 161.003(a). Mother’s 

sufficiency challenge relates to involuntary termination under section 161.003(a). See 

id. However, as noted above, the trial court also made three predicate findings under 

section 161.001(1). See id. § 161.001(1)(D), (E) & (O). The trial court also found that 

termination was in C.H.’s best interest. See id. § 161.001(2). On appeal, mother has 

not challenged the three predicate findings or the best interest finding. Therefore, 

mother has waived any complaint about the sufficiency of the evidence to support these 

findings. See Toliver v. Tex. Dep't of Family & Protective Servs., 217 S.W.3d 85, 102 

(Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that parent who challenged only 

one of four statutory grounds found by trial court to support termination “waive[d] any 

complaint about the sufficiency of the evidence to support the[ unchallenged] findings”).
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“Only one predicate finding under section 161.001(1) is necessary to support a 

judgment of termination when there is also a finding that termination is in the child’s best 

interest.” In re E.A.G., 373 S.W.3d 129, 141 (Tex. App.—San Antonio 2012, pet. 

denied). “Therefore, to mount a successful challenge on appeal based on evidentiary 

insufficiency, a party must challenge each affirmative finding of a predicate ground for 

termination or at minimum challenge the best interest finding.” In the Interest of S.N., 

272 S.W.3d 45, 49 (Tex. App.—Waco 2008, no pet.). In this case, because the trial 

court found that termination was in the best interest of the child, any of the three 

unchallenged predicate findings will support the order of termination. See In re E.A.G., 

373 S.W.3d at 141. Accordingly, we overrule mother’s sole issue on appeal. See In re 

A.V., 113 S.W.3d 355, 362 (Tex. 2003) (“[B]ecause Puig does not challenge the 

sufficiency of the evidence supporting subsection Q or the finding that termination was 

in his children’s best interest, we need not reach any other issues raised by Puig.”); 

Perez v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427, 434 (Tex. 

App.—El Paso 2004, no pet.) (“Because any of the three unchallenged findings will 

support the order of termination, it is unnecessary to review Saenz’s factual sufficiency 

arguments.”).

V. FATHER’S APPEAL

In two issues, father argues that the termination order must be reversed for the 

following reasons: (1) termination of his parental rights violates his right under the 

Fourteenth Amendment; and (2) the evidence was insufficient to prove that his mental 

illness will render him unable to provide for his son’s needs until his eighteenth birthday. 

We will address each issue in turn.
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A. Equal Protection

In his first issue, father argues that the trial court violated his Fourteenth 

Amendment right to equal protection under the law by terminating his parental rights to 

C.H. based on his inability to pay the $50 registration fee for the anger management 

classes he was required to attend as part of the Department’s service plan. This relates 

to the trial court’s predicate finding under subsection (O) of Texas Family Code Section 

161.001(1). See TEX. FAM. CODE ANN. § 161.001(1)(O). However, as set forth above, 

the trial court also made two other predicate findings under subsections (D) and (E) of 

Texas Family Code Section 161.001(1). See id. § 161.001(1)(D), (E). In addition, the 

trial court found that termination of father’s parental rights was in the best interest of the 

child. See id. § 161.001(2). Furthermore, “[o]nly one predicate finding under section 

161.001(1) is necessary to support a judgment of termination when there is also a 

finding that termination is in the child’s best interest.” In re E.A.G., 373 S.W.3d at 141. 

Father has not challenged the sufficiency of the evidence to support the two predicate 

findings under subsections (D) and (E) or the trial court’s finding that termination of 

father’s parental rights was in C.H.’s best interest. See TEX. FAM. CODE ANN. § 

161.001(1)(D)–(E), (2). Therefore, father has waived any complaint about the 

sufficiency of the evidence to support these findings. See Toliver, 217 S.W.3d at 102. 

Furthermore, because the trial court found that termination was in the best interest of 

the child, either of these two unchallenged predicate findings will support the order of 

termination. See Perez, 148 S.W.3d at 434. Therefore, even assuming father 

established error with respect to the trial court’s predicate finding under subsection (O), 

the error is not reversible because it did not “probably cause[] the rendition of an 
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improper judgment” or “probably prevent[ father] from properly presenting the case to 

the court of appeals.” TEX. R. APP. P. 44.1(a). Accordingly, father’s first issue is 

overruled. 

B. Sufficiency of the Evidence

In his second point, father argues that the evidence is insufficient to support the 

trial court’s finding that his mental illness will render him unable to provide for C.H.’s 

needs until his eighteenth birthday. Father’s sufficiency challenge relates to involuntary 

termination under section 161.003(a). See TEX. FAM. CODE ANN. § 161.003(a). As set 

forth above, the trial court also made two other predicate findings under subsections (D) 

and (E) of Texas Family Code Section 161.001(1). See id. § 161.001(1)(D), (E). Father 

has not challenged the sufficiency of the evidence to support the two predicate findings 

under subsections (D) and (E) or the trial court’s finding that termination of father’s 

parental rights was in C.H.’s best interest. Therefore, father has waived any complaint 

about the sufficiency of the evidence to support these findings. See Toliver, 217 

S.W.3d at 102. Furthermore, either of the two unchallenged predicate findings will 

support the order of termination. See Perez, 148 S.W.3d at 434. Accordingly, we 

overrule father’s second issue. See In re A.V., 113 S.W.3d at 362; Perez, 148 S.W.3d 

at 434.

VI. CONCLUSION

The order of the trial court is affirmed.

_______________________

NORA L. LONGORIA

Justice

Delivered and filed the

2nd day of May, 2013.