### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00597- CV

C. S. F ., Appellan t

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -F M- 13- 0029 17, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n ear ly September 2014, a jury deter mined appellant C.S.F.’s pare ntal rig hts should

be ter minated under section 161.003 of the family code, which provides that a pare nt’s rig hts may

be terminated if it is shown that: (1) the pare nt has a mental or emotional illness that rende rs the 1

pare nt unable to proper ly car e for her child’s needs; (2) the illness will, in all rea sonable probability , continue to rende r the pare nt unable to car e for her child’s needs until the child’s eig hteenth birthday ; (3) the Depa

rtment has been the child’s manag ing conser vator for at l ea s t six months prior to the

termination hear ing; (4) the Depa rtment has made rea sonable eff orts to reunite the pare nt and child; and (5) termin at i o n i s i n t he child’s best interest. Tex. Fam. Code § 161.003(a)

. I n three issues, 2

Section 1 6 1

. 0 0 3 (a) also allows for termination if the parent has m ental deficienc ies that 1 rende r her unable to car e for her child, Tex. Fam. Code § 161.003(a) , but there are no alleg ations that C.S.F. suffer s from a me ntal defic iency

. N.E.’s father’s r ights we re a lso terminated, but he ha s not appea led from that de cision. 2C.S.F. attacks the leg al and fac tual sufficien cy of the evidenc e supporting the jury ’s verdic t. She

contends the evidenc e is insufficient to support finding s: (1) that she suff ers f rom a menta l illness

that rende rs her u n ab l e t o ca re for N.E. and that any such illness will likely persist until N.E. is eig hteen y ear s old, (2) that the Depa rtmen t m ad e re asonable eff orts to reunite her with N.E., or (3) that ter

mination is i n N.E.’s be st interest. We aff irm the trial cour

t’s decr ee of

termination.

F actual and Proc edural Backgroun d

Acc ording to the Depa

rtment’s pleading s and supporting af fi d av its, in mid-April
2013, N.E., who wa s at the time thirteen y ear s old, was hospitaliz ed for six day s due to suicidal

ideation. On April 24, the Tex as Department of Family and P rotec tive Service s rec eived a re p o rt
of m edica l neg lect alleging that C.S.F. was refusing to seek medic al ca re for N.E.’s mental health

issues. M ar cy Hannum, a Depa rtment case worke r, met with N.E., who repor ted having suicidal thoughts “due to her mother’s i n s t ab i l i ty ” but said she did not actua lly want to commit suicide.

N.E. also expressed conce rn that C.S.F. might not help with N.E.’s mental h ea l t h i ssues. N.E.’s

school counselor told Hannum that she had conce rns about C.S.F.’s menta l health and that C.S.F.

was uncooper ative and rea cte d inappropria tely when approa ched about N.E.’s mental health

conce rns. Finally , Hannum spoke to C.S.F., who insisted that N.E. “wa s being ‘put u p ’ t o t his

behavior ” and was “ac ting this way due to her fathe r say ing horrible things about her.” Hannum said

C.S.F. “did not make sense ” during the interview and fr equently

chang ed the subjec t.

On May 9, the Depa

rtment rec eived another repor t tha t N .E. was suicidal when she

was a round C.S.F. Hannum a g ain met with N.E., who said that C.S.F. was unstable and that N.E.

“did not fee l safe at home” and “wa s g oing to hurt herse lf” if she was returne d to her mother’s car e.

2Hannum reque sted an emer g ency mental health assessment, which deter mined it would not be safe

to return N.E. to C.S.F.’s ca re

. N.E. was ag ain hospitaliz ed for approximately one wee k for

trea tment of depre ssion and suicidal thoughts. During that time, hospital s t af f m em bers repor

ted

that C.S.F. was ag itated, disorg anized, repe titive, “tang ential with her speec h,” seeming ly para noid,

and possibly delusional. Staff members also expressed conce rn that C.S.F. did not want N.E. to be

trea ted and would not provide adeq u at e ca re o r t rea tment upon N.E.’s release

. N.E. was rele ased

into the car e of L ara

Bur nett, C.S.F.’s ac quaintance from chur ch, ra ther than to C.S.F.’s c are

.
I n late May , the De p ar t m en t soug ht and was g rante d conser vatorship of N.E., and

N.E. wa s s o o n moved from Bur nett’s car e to the home of Denise and Richard Ketcha m, another

f a mi ly C. S. F

. k

n e w f r o m c h u r c h

. A mo n g o th e r th in g s , C. S. F

. w a s o r d e r e d to c o mp le te a p s y c h o lo g ic a l

evalua tion and follow all rec ommendations, participa te in individual thera py , and take a protec tive

pare nting class. C.S.F. was order ed not t o co n t act N.E. other than in their supervised visitations,

to only contac t the Ketcha ms via email, to stay awa

y from the Ketcha

ms’ house and N.E.’s school,

and not to contac t the attorney s or other profe ssionals in v o l v ed in the case

. N.E. stay ed with the

Ketcha ms until she was ag ain hospitaliz ed for sever al day s in late October 2013. I n November 2013,

soon afte r her rele ase from the hospital, N.E. was moved to Settlement Home, a residential trea tment

cente r, whe re she was still livi ng at the time of trial.

Summ ary of the Testim ony at Trial

The following witnesses testified a bout N.E.’s mental he alth issues, treatment, a nd

pro gress: Dr. Asif Siddiqui , N.E.’s psy chiatrist from April throug h October 2013; Dr. J essica
Tsourmas, a child psy chiatrist who worke d with N.E. while she was hospitaliz ed in April and May

32013; Musara t Yusufali, a hospital social worke r who worke d with N.E. in April 2013; L ace y Evans,

N.E.’s supervising thera

pist at Settlement Home for the first eig ht months of her stay ; A my Bla ke,

N

. E

. ’ s CA SA v o lu

n te e r ; D e n is e K e tc h a

m; Ca r me n B o li c h , th e f

a mi ly ’ s c a s e w o r

k e r ; a n d N

. E

. h e r s e lf

. Their testimony

is summariz ed as f

ollows:

• N.E. was hospitaliz ed due to suicidal thoughts three times betwee n Ap ri l and November 2013. After numerous attempts to stabiliz e her moods and thoughts throug h medication and chang ed dosag es, Dr. Siddiqui rec ommended she be place d in a residential trea tment cente r.

• N.E. wa s first hospitaliz ed due to de pressive sy mptoms and suicidal thoughts; her pr imary stressors wer e being bullied at school and C.S.F.’s “mental illness.” N.E. told Dr. Siddiqui that she had had hallucinations since she was seven y ear s old, some times he ard voices that told her to kill herse lf, and suffe red from mood swing s, depre ssion, sleep disruptions, ang er, the desire to c ut he rself, and suicidal thoughts. N.E. said she w as depr essed whe n she wa s with C.S.F. and did not want to live with her, but C.S.F. denied any role in N.E.’s problems
an d t o ld Dr. Siddiqui that they wer e the result of N.E.’s being bullied and manipulated at school. Dr. Siddiqui said that if N.E. was inventing sy mptoms to avoid living with C.S.F., that would still indicate a serious problem. N.E. was diag nosed with “major depre ssive disorder w ith psy chotic fe ature s” and “ may have unde rly ing bipolar

sy mptoms.”

• N.E. was rea dmitted in May 2013 due to “ stress at home with he r mother” and “the mental state of her mom.” When N.E. was to be rele ased the second time, she was “pre tty adama nt” that s h e did not want to return to C.S.F.’s car e, said she felt unsafe returning to C.S.F.’s home, and se emed r elieved w hen she le arne d she would be g oing to stay with Burne tt.

• Following her third hospitaliz ation in October 2013, N.E. was admitted to Settlement Home due to de pression, suicidal ideation, and self-ha rming behavior s or ideation. N.E. was still at Settlement Home at the time of trial , d u ri n g wh i ch time Evans said her behavior and ability to handle her emotions ha s improved. N.E. has become more stable a nd better a

ble to acc ept fee dback and talk things throug h and can be redire cted. N.E. loves C.S.F. but does not fee l understood or hear d by her and does not fee l that C.S.F. can keep her safe

. Despite her prog ress, N.E.’s diag noses will not disappea r, and she will need thera

py for a long time.

• N.E. was often anxious b efore and afte r her unsupervised visits with C.S.F. at Settlement Home. Those vis its we re stopped by Settlement Home in the S pring of 2014, afte r C .S.F. lear ned that N.E. had been communicating with Rebec ca Bu rtt, N.E.’s sister and C.S.F.’s older daug hter, and y elled at N.E., said neg ative things about Bur tt, a nd ref used to listen to N.E. N.E. returne d from that visit sobbing and require d “a lot of attention throug hout the night to manag e.” C.S.F. also beg an sending the profe ssionals involved in the case numerous

4emails and phone calls that “we re long, repe titive, and extremely inappropria te,” including

calling Bur

tt a “deme nted human being .”

• Asked why N.E. has d epre ssive disorder and border line persona lity traits, Evans said, “I don’t think that I can say why she has cer tain diag noses. What I can say is that h er

— the behavior s that we see and the way that she perc eives the world and h er d i ff i cu l ty in reg ulating can—c an be at least partially contributed to her development and her exposure to having her primary car eg iver being very impulsi ve and being exposed to situations wher e she d i d n ’t have adequate supervision and structure and she wasn’t taug ht how to calm and self-soothe.

. . . [N.E.] didn’t have that. And so when she is separ ate from adults, she can’ t reg ulate herse lf and she doesn’t fee l—didn’t fee l safe enoug h to c ome back to a dults to g et that reg ulation. So we had to teac h her that as a teena g er. And that’s hard for a teena g er to lear n, rig ht, beca

use she’ s g ot all this ot her nor mal teena g er stuff g oing on. So helping her throug h all of that wa s a big part of he r treatment.”

• Evans testified that N.E. needs “an extremely healthy pare nt who is high enoug h functioning and attentive to be able to help [N.E.] navig ate life with the supports in place so that she can be both emotionally reg ulated enough to make s ound decisions and be supported and held
acc ountable to be able to function and be healthy as a y oung adult.” I f N.E. continues to be in a structure d and nurturing environment and to make g ood prog ress, she “is totally capa ble of being a healthy , thriving succe ssful y oung adult.” Evans also said that beca use of C.S.F.’s “dy sreg ulated behavior s,” C.S.F. was unable to meet N.E.’s needs and “could cause a hug e reg ression” f

or N.E.

• Bla k e t es tified that N.E. has g rown more mature and can be redire cted in a more positive direc tion if she is in a bad mood. Bla ke did not believe N.E. should be returne d to C.S.F.’s
car e beca use Bla ke did not believe that N.E. would g et the car e and support she needs or that C.S

. F. could be empathetic, understanding , or nurturing

. N.E. has spoken to Bla ke about g etting emanc ipated when she turns six teen in the event that C.S.F.’s rig hts wer e not terminated, but shortly

befor e trial, N.E. told Bla ke she wanted to re turn home, explaining that she wa

nted to be with her

friends a g ain.

• Early in N.E.’s time with th e Ketcha m family , N.E. said she was “sca red of her mother’s temper.” After N.E. had supervised visits with C.S.F., N.E. was usually “ver y ag itated and emotional” and wou l d b e “too emotionally overw roug ht or worn out from the visits.” Ketcha m said that N.E. has made g ood prog ress at Settlement Home as far as seeming more emotionally stable. Ketcha m al so testified that C.S.F. seeme d “er ratic” and that Ketcha

m had conc erns a

bout C.S .F.’ s mental hea lth.

• Bolich said that the Depa rtment intended to seek an adoptive h ome for N.E., and sever al
w it n e s s e s te s ti f

ie d th a t N

. E

. w a s a d o p ta

b le d e s p it e h e r a g e

. T h e y a ls o te s ti f ie d th a t Se tt le me n t Home has a foster- to-adopt prog ram that allows children to “roa d-test potential place ments.”

5Asked whether C.S.F. and N.E. would be allowe d t o h ave continued communication if

C

. S .F.’ s rig hts wer e terminated, Bolich answe red, “[I ]f rig hts wer e terminated and s h e i s adopted by a family , it would depend on the family

. I f they are willing to continue to have contac t with [C .S.F.], then that would be allowed.

. . . I believe with [C

. S

. F. ] ’s previous behavior with the place ments, that is why we are wanting to terminate, so the place ment can have that decision to say , all rig ht, the visits have g otten o u t o f h an d o r, y ou know, it’s inappropria te so we ne ed to cut them off .”

• N

. E

. te s ti f

ie d th a t s h e lo v e d h e r mo th e r a

n d w is h e d C. S. F

. h a d g o tt e n h e lp f o r h e r o w n me n ta l h e a lt h p r o b le ms

. Sh e s a id th a t if h e r mo th e r had e n g a g e d in th e r a p y o r s e e n a p s y

c h ia tr is t, including taking any presc ribed medications, she would want to live with C.S.F. Howeve r, she did not believe that she could be healthy living with he r mother if C.S.F. did not see to her own mental health. She had seen some improvement in C .S.F.’s behavior, say ing that “occa s i o n al l y it will fall back, so it’s like two steps forwa rd, one step back.” N.E. said Bla ke, her case worke r, and her attorney had told her that she could s ee C .S.F. even if her rig hts wer e terminat ed , an d later clar ified that she had been told that such visits would be subject to permission by

her ma nag ing c onserva tor.

I n addition to the prec eding witnesses, who primarily testified about N.E.’s problems

and needs but also provided some information about C.S.F.’s behavior and appar ent mental health,

the foll owing experts testified about their w ork with and obser vations of C.S.F.: Dr. Ke lly Ahr, a

psy cholog ist who perf

ormed a psy cholog ical evalua tion of C.S.F. in Fe bruar y 2007; Marissa Eng el,

a social worke r who worke d with C.S.F. from J uly 2013 until ear ly October 2013; Dr

. J essica Thompson, a psy chiatrist who evalua ted C.S.F. in October 2013; Tammi Schrag er, a thera pist who

saw C.S.F. four times in October 2013; Dr. Dale Hsieh, a psy chiatrist who conducte d a psy chiatric

exam of C.S.F. in November 2013; Amanda Ramirez, a counselor who provided family thera py for

C.S.F. and N.E. from J anu ar y 2014 throug h May 2014; Dr. Ericka Br others, a psy cholog ist who perf ormed C.S.F.’s psy cholog ical evalua tion in May 2014; Celina McAlister, a counselor who had

eleve n sessions with C.S.F. from ear ly November 2013 until F ebrua ry 2014; a nd Edwar d Saddy , a
counselor who started working with C.S.F. in J une 201 4

. T he Depa rtment also introduced a

6psy cholog ical evalua tion done by Dr. Andre a Sprag gi n s i n J uly 2013. The leng thy and detailed

testimony of those experts, as well as the rele vant testimony of the witnesses previously discussed,

is summariz ed and g rea tly condense d for br evity ’s sake as follows: 3

• Throug hout this proce eding , C.S.F. fre quently g rew dissatisf ied with her thera

pists, counselors, and doctors, filing complaints ag ainst their licensing authorities and threa tening to sue or actua lly filing suit. She has diffi culty keeping appropr iate boundarie s and 4 sometimes resor

ted to using inappropria te lang uag e, emailing or calling too often, and being impatient in g ener al. She told more than one profe ssional that she hoped they would “rot in hell” for their actions in the case , and she pref ace d one evalua tio n b y s ay i n g that “any one who say s any

thing wr ong about me is g oing to be sued.”

• Whil e N.E. was in the hospital, C.S.F. was sent home more th an o n ce beca use of her behavior and beca

use N.E. ref

used to see her. Family thera py sessions and visitations wer e repe atedly ended ear ly , and eventua lly terminated, beca use of C.S.F.’s ref

usal or inability to stop disparag ing pe ople involved in the ca se or discussing inappropria te topics.

• Most of the experts testified that C.S.F. display ed a lack of empathy , explaining that she had trouble rec og nizi ng other people’ s emotions a nd understanding why

they might fee l ha

ppy or sad. She was also descr ibed as potentially manipulative in her interper sonal rela tionships. I n her evalua tions and thera py sessions, C.S.F. consistently denied that she had any failing s, denied having any mental health problems of her own, minimi zed or utterly denied any role i n N.E.’s mental health issues, and blamed other people for N.E.’s problems. C

. S

. F. fre quently denied any unhappiness or dissatisfaction with her life, despite N.E. having been hospitaliz ed due to suicidal ideation and other mental problems and remove d from her car e.

• Although C.S.F. broug ht N.E. for follow-up c a r e and obtained N.E.’s presc ribed medications afte r her rele ase from the hospita l i n Ap ri l , she also downplay ed N.E.’s problems or even denied that N.E. had mental issues. C.S.F. was descr ibed as seeming not to understand what she was told about N.E.’s condition and needs, and many of the experts wer e conce rned that C.S.F. would not rec og nize if N.E. was in distress and would be unwilling to g et her the help she nee ded.

See Tex. R. App. P . 47.1 (appe llate cour t’s opinion should be “as brie f as pr actica ble”)

. 3

Dr. Siddiqui testified that he repe atedly ref used C.S.F.’s reque sts to evalua te her or provide 4 her with a diagnosis, e x p l aini ng that it was a conflict of interest because he was trea ting N.E. He also h ad t o t el l C.S.F. to stop telling people that he was her doctor, and in response , C.S.F. g rew ang ry and thre atene d to sue and file a complaint with the medical boa rd.

7• Multipl e doctors, so ci al wo rkers, and thera pists noted that C.S.F. spoke rapidly and was tang ential in her speec h. She was descr ibed as defe nsive, repe titive, and disorg anized in her t h inking. Multipl e witnesses saw signs of paranoid delusi ons, including alleg ations about
a “maf ia/drug car

tel” involving N.E. ’s fa ther. C.S.F. was descr ibed by two doctors of “per serve rating ,” meaning she would g et “hy perf ocused” on cer

tain topics, such as all of the things she had done for N.E., and could not be redire cted. Severa l experts testified that they believed C.S.F. was not truthful in her answers an d t h at they there fore could not g ive definitive diag noses.

• I n 2007, Dr. Ahr made a provisional diag nosis of bipolar disorder . I n 2013, Dr. Sprag g ins made a provisional diag nosis of “Schizoaffe ctive Disord er, Bipolar Ty pe” and also said, “Rule Out Personalit y Disorder NOS (B order line and Histrionic Traits).” Also in 2013, 5 Eng el diag nosed her with “schizoaff ective diso rd er , b i p o lar ty pe.” I n 2014, Dr. Br others
arr ived at diag noses of “ Schizoaffec tive Disorder , bipolar ty pe (pr ovisional)” and possible “Adjustment Disorder with anxiety ,” “Na rcissistic Personality Disorder with Histrionic and Obsessive-Compulsive fe ature s,” and “ Unspec ified Ne urocog nitive Disorder.” 6

• Dr. Sprag g ins rec ommended further thera py and psy chiatric consultation, noting that C.S.F. might “show resistanc e to rec eiving service s, as she show[s] a signific ant lack of insight into her mental health functioning and denies any mental health difficulties.” L ikewise, Dr. Br others said that psy cholog ical and psy chiatric trea tment with m ed i ca tion was “pre tty imperative” for trea

tment of schizoaffe ct i v e disorder, bipolar ty pe but that it was “ver

y

The doctors explained that a “provisional diag nos i s ” m eans the doctor needs more 5 information and/or time to work with the patient befor e making a more definitive diag nosis. Severa l
o f t he ex perts in this case stated t hat t heir short time to interview C.S .F., coupled wit h her refusa l to g ive truthful answe rs, defe nsiveness, and tange n t i al t h o ug ht proce ss, made it impossibl e to do
more than g ive a provisional diag nosis. “Rule out” in a diag nosis means th at t h e d o ct or sees indications of that disorder that require further exploration. Dr. Br others summarized, “I think it’s clea r that we’ re dealing with some ty pe of mental health issue here

. J ust defining which one is the bigg er c hore.”

Drs. Thompso n an d Hs i eh wer e unable to rea ch definitive diag noses based on C.S.F.’s 6 interviews. Thompson diag nosed her with “adjustment disorder,” meaning she seeme d to be having “some diff

iculty g oing throug h a stressful situation, ha ving some difficulty adjusting to it.” H sieh
rea ched “ver

y tentative” diag noses of “mood disorder NOS,” meaning “ther e’s something g oing on, she’s not fee ling well, doesn’t fit into a cate g ory very clea rly ,” and “per sonality d i sorder NOS,” meaning “[s] he didn’t fit a criter ia ag ain of a very specific persona lity diag nosis, but

. . . there could be elements of differ ent diag noses in there .” (“N OS is an abbre viation for Not Otherw ise Specified, indicating a cluster of sy

mptoms that do not clea

rly fit in any single diag nostic cat ego ry

. NOS is ofte n a p r o v is io n a l diag nosis pending additional information or testing.” Wiki pedia, DSM-I V codes, h tt p :/ /e n .wikipedia.o r g/w

/i n d e x. p h p ?ti tl e = D SM

- IV

_ c o d e s & o ld id

= 6 4 2 5 3 1 6 9 6 ( a s o f F e b

. 1 9 , 2 0 1 5 )

. )
8common” for someone with such an illness to deny having any mental illness, which makes

“[t] rea tment compliance ” much more difficult. Eng el conclude d that further counseling was contra indicated, explaining, “Due to her lack of understanding of her own mental illness and due to her lack of willingness to addre ss it, counseling actua lly seeme d to inflame the issue and cr eate more proble ms for her than it solved.” Eng el said that schizoaffe ctive disorder , bipolar ty p e was difficult to trea t, particula rly if the person did not rec og nize or admit to having the illness and re fused to take medication.

• Dr. Siddiqui believed C.S.F. was in need of psy chiatric assista nce and testified that living with C.S.F. had adver sely aff ecte d N.E. Dr. Tsourmas could not say whether C.S.F.’s mental health was the ca

use of N.E .’s April and Ma y crises but testified tha t “it was a big stressor for her, and it was a big focus of her trea tment while in the hospital.” Dr. Br others ag ree d 7 that a pare nt’s ref

usal to deal with her own m en t al health issues, when those issues wer e neg atively aff

ecting her child, would endang er the child. Dr. Sprag g ins said, “Reg ardle ss of whether [C .S.F.] is experiencing mental health conce rns, the fac t rema ins tha t she takes no responsibility as a pare nt for her daug hter’s b ehavior , and instead blames her daug hter’s behavior on my

riad external source s, including peer s at school, so ci al m ed ia, and other family members. Reg ardle ss of the cause of her daug hter’s issues, her daug hter’s rec overy i s l i k el y t o be neg atively impacted by [C .S.F.]’s failure to consider how she may have
c o n tr ib u te d to h e r d a

u g h te r ’ s d is tr e s s

. ” A s k e d w h e th e r C. S. F

. ’ s me n ta l h e a lt h w a s d e tr im e n ta l to N .E., Ramirez sa id, “ That’s such a broad state ment. I think that under the curr ent stress that she’s under, she hasn’t been able to de monstrate ong oing safe interac tion, emotionally
s a f e in te r a c ti o n w it

h h e r d a u g h te r

. I d o n ’ t k

n o w w h a t th in g s lo o k li k e in a d if

f e r e n t s it u a ti o n

. ”

• Schrag er testified that C.S.F. showed no signs of understanding that she might play a role in N.E.’s issues. Schrag er said, “The only thing t h at I am terrif ied about is that [C .S.F.] is a person who did nothing but want for reve ng e. Not for [N.E.] , but for herse lf.” Schrag er also said that when a child attempts suicide three times and her pare nt still repor ts being entirely 8 satisfied with her ow n life, that par ent should not care for that c hild.

• Asked whether she had deter mined whether C.S.F.’s emotional state harme d N.E.’s welfa re, McAlister said, “I was not able to deter mine that in our sessions.” She believed that C.S.F.’s mental and emotional issues might have contributed to N.E.’ s depre ssion and anx iety

. By the end of their sessions, C.S.F. was “starting t o re co g nize that [N.E.] may have been
overw helmed” and rec ently stated that she wanted to lear n how t o h el p N.E. with that. M c A li s te r s a

w s o me im

p r o v e me n t in C. S. F

. ’ s a

b il it y to r e s p e c t b o u

n d a r ie s w it h p r o f e s s io n a ls ,

Dr. Tsourmas also said that the fac t that N.E. has continued to suffe r from p s y ch i at ri c 7 problems to such a de g ree that she has been place d in a residential tre atment ce nter ra ises conce rn that N.E. has sig nificant stre ssors other than C.S.F.’ s mental hea lth. Schrag er testified that C.S.F. told her that N.E. had actua lly attempted suicide three times. 8

9“[n] ot all of the time, but a lot more of the time than p re v i o u s l y ,” and to rec og nize and

u n d e r s ta n d o th e r p e o p le ’ s f

e e li n g s

. Sh e b e li e v e d C. S. F

. c o u ld c o n ti n u e to ma k e s lo w p r o g r e s s if she continued w ith therapy

.

• McAlister believed C.S.F. might have a “per vasive developmenta l disorder,” perha ps along the autism s pectr

um, and her end-of

-treatment repor

t diag nosed C.S.F. as follows: “[rule out] Pervasive Deve lopmental Disorder NOS,” “Adjustment Disorder w/Anxi ety ,” and “Pare ntChild Relational Problem.” M cAlister rec ommended that C.S.F. continue thera py and consider further testing to deter mine whether she has a d e v e lopmental disorder that interfe res with her re cog nition of emotion.

• Saddy testified that C.S.F. was extremely motivated to g et N.E. back and that her repe titive and tang ential speec h might be “ADH D-ty pe sy mptoms.” Asked whether C.S.F. had made prog ress “[g]iven the limit ed scope of what [C .S.F.] has wanted to work on” in their sessions, Saddy said, “Oh, a littl e bit.” Saddy said he was willing to continue working with her “to the extent that I ’m capa

ble,” explaining that his clinic did not do long- term, in-depth thera py

. Saddy believed C.S.F. suffe red from “anxiety , if any thing,” and did not s ee an y rea son to ref er her for more intensive psy cholog ical or psy chiatric care. He s ai d that her “big g est
conce rns wer e anxiety over wanting to g et her daug hter back.” He also said that he did not “badg er” his patients or acc use them of ly ing about sy mptoms and that he “just sort of take[s] y our word f

or it.”

Discussion

I n arg uing that the evidenc e is insufficient to show she suffe rs from a mental illness

that makes her unable to car e for N.E., C.S.F. notes that the doctors do not seem to have diag nosed exactly what disorder or disorders she suffe rs from and asser ts that beca

use the experts only talked

about “b es t g uesses” and testified that C.S.F. could make prog ress in addre ssing her mental problems, t heir testim ony cannot support finding s under section 161.003(a) (1) and (2). S ee Tex. 9

The standards for revie wing whether clea r and convincing evidenc e supports a termination 9 d e c r e e a r e w e ll e s ta

b li s h e d

. S e e T e x. F a m. Co d e § 1 0 1

. 0 0 7 ( d e f

in in g c le a r a n d c o n v in c in g e v id e n c e ) ; In re J.P.B. , 180 S.W .3 d 5 7 0, 573 (Tex. 2005) (defer to jury ’s credibility decisions); In re J.F.C. , 96 S.W .3d 256, 266 (Tex. 2002) (re view of evidenc e); In re C.H. , 89 S.W .3d 17, 25-26 (Tex. 2002) (re view of e vidence ).
10Fam. Code § 161.003(a)

. C.S.F. essentially seems to arg ue that bec ause no expert direc tly stated,

“ D u e to me n ta l il ln e s s X , C. S. F

. is a n u n f it p a r e n t a n d w il l n e v e r r e c o v e r , ” th e e v id e n c e is in s u f f ic ie n t to support the jury ’s ver dict. We disag ree

.

I n addition to the testimony summarized above, Bolich said she believed C.S.F. had

mental illnesses that made h er unable to car e for N.E., basing that conclusion on the various profe ssionals’ repor

ts and diag noses and on her own observa tions of C.S.F. an d N. E

. She also

believed C.S.F.’s mental illness was likely to persist until N.E. was eig hteen, say ing, “I believe that
[C .S.F.] has had this mental health issue for sever al y ear s, and she continues to have it, and she’s not

rec og nizi ng it. And so I believe she would continue to not addre ss it, and deny these mental health
issues, and it would not be appropr iate for [N.E.] to be in her car e.” N.E. testified that she loved her

mother but did not believe that she could be healthy living with her if C.S.F. did not see to her own
mental health. Numerous mental health experts have evalua ted and worke d with C.S.F., the majority

of those expert s b el i ev e t h at C.S.F. suffe rs from some form of mental illness, and three of them

believed she h as schizoaffe ctive disorder, bipolar ty pe. Others said they could not specify what

illness or illnesses are involved beca use C.S.F. did not answe r their questions honestly or fully

. Most

of the experts testified that, no matter what the exact illness is, and despite her ability to provide for

N.E.’s materia l needs, C.S.F.’s lack of empathy and inability to rec og nize and addre ss her own issues

has b ee n d et ri mental to N.E.’s emotional well-be ing and rende rs C.S.F. unable to be an adequate

pare nt. Fur

thermore , sever al experts testified that schizoaffe ctive disorder, bipolar ty pe, the illness they believe C.S.F. suffe rs from, is difficult to trea t under the best of circ umstances and that C.S.F.’s unwillingness or inability to rec og nize her own mental issues will make trea tme n t more difficult and slow any

prog ress.

11The fac t that some experts did not believe C.S.F.’s mental condition w as as serious

as others believed it to be does not invalidate the evidenc e supporting the jury ’s finding s. Multipl e
experts provided testimony that C.S.F. suffe red from some form of serious mental illness, multipl e
wi t n esses testified about C.S.F.’s unusual or inappropria te behavior and the distress her behavi o r

cause d N.E., and C.S.F. utterly denied that she had mental issues and was tang ential and r ambling

in her testimony

. Having car efull y re v i ew ed the entire rec ord, we hold that the jury could have
found, by clea

r and convincing evidenc e, (1) that C.S.F. suffe red from a mental or emotional illness

that made her unable to proper ly car e for N.E.’s needs and (2) that her illness will, in all rea sonable probability , continue to rende r her unable to car e for N.E. unt il N.E. i s at l east eighte en y ear s old.

See id. § 161.003(a) (1), (2); Salas v. Texas Dep’ t of Protective & Regulatory Servs. , 71 S.W .3d 783,

790 (Tex. App.—El Paso 2002, no pet.) (“Sec tion 161.003 does not require scientific cer tainty that

Salas’s mental illness will continue until the children are eig h t ee n ; i t o nly require s rea sonable probability .”); Spurlock v. Texas Dep’ t of Prot ec t i ve & R egulat ory Servs. , 904 S.W .2d 152, 158 (Tex. App.—Austin 1995, writ denied) (“The statute does not require scientific cer tainty , but rathe r

rea sonable proba

bility .”). We ove rrule C.S.F.’ s first issue on appea l.

C.S.F. next arg ues that beca use the Depa

rtment was unable to provide C.S.F. with a
th e r a p is t w h o c o u ld me e t C. S. F

. ’ s n e e d s , in s u f f ic ie n t e v id e n c e s u

p p o r ts a f in d in g th a t th e D e p a r tm e n t
made r easona

ble ef forts to reunite the family

. See Tex. Fam. Code § 161.003(a )(4)

. Acc ording to Bolich, C.S.F. started thera py in J uly 2013, shortly afte r N.E. was

remove d, and m o v ed from thera pist to thera

pist until she was “unsucc essfully discharg ed” in
May 2014 by Katie Pendelton, who saw her afte r McAlister stopped seeing patients. At that point,

12Bolich trie d to refe r C.S.F. t o two other therapists, neither of whom had ava ilable opening s, and a

third ref used to take C.S.F. as a patient, say ing she did not want to risk being sued or having a complaint filed ag ainst her. C.S.F. then found Saddy on her own. Bolich said, “[W ]i th the service plan, we’ ve provided her with sever al providers that could help her with thera py , her psy cholog ical,

psy chiatric evalua tions. Given her visits. [si c] I believe that, y ou know, we have tried to return her.
But [C.S .F.] is unable to, I g uess, appr opriately addre ss her ne eds.” 1 0

C.S.F. was allowed visitation, both supervised and unsupervise d , which was often

cut short and eventua lly halted altog ether beca use of her re fu s al or inability to stop bring ing up inappropria te subjects, making derog atory rema rks about other people involved i n t h e case , or
otherwise causing N.E. distress. Her family thera py wi t h N. E. was stopped for the same rea son.
C.S.F. was provided with numerous thera pists, psy cholog ists, and psy chiatrists so she could addre ss
her own mental health issues, but when they made statements or diag noses that she did not like,

her pattern seeme d t o b e to stop seeing the profe ssional, file complaints with his or her licensing
board, threa ten to sue, and sometimes file suit. Severa l e x perts believed C.S.F. was not tr uthful in

her answe rs during evalua tions and thera py , and she did n ot comply with rec ommendations that

she seek psy chiatric car e; indeed, C.S.F. ref used to admit she had any disorder that m i ght require

such care. Although some thera pists saw some prog ress, there was littl e evidence that C.S.F. had

made signific ant improvement in addre ssing (or even acknow ledg ing) her mental issues during this

Bolich was asked why C.S.F.’s having g one to see three psy ch i at ri s t s did not satisfy 1 0 the Depa rtment’s require ments, and she answe red, “I d o n ’t b eli eve that she was g iving enoug h information to the psy chiatrists to do an acc urate evalua tion, and so I don’t believe she fully eng ag ed in those service s.”
13proce eding

. Ba sed on this rec ord, the jury could h ave found by clea r and convincing evidenc e
that the Depa

rtment made rea sonable eff orts to reunite her with N.E. See id .; Liu v. Departme nt of Family & Protective Servs. , 273 S.W .3d 785, 795 (Tex. A pp.—Houston [1st Dist.] 2008, no pet.); Rodrigue z v. Texas Dep’ t of Family & Protective Servs., No. 03-05-00321- CV, 2006 WL 1358488, at *7 (Te x . App.—Austin 2006, May 19, 2006, no pet.) (me m. op.). We overr ule C.S.F.’s sec ond

issue.

I n her third issue, C.S.F. arg ues that the evidenc e is insufficient to support the jury ’s finding that termination was in N.E.’s best interest, pointing to uncer tainty about whether and when

N.E. might be adopted, N.E.’s wishes to cont i n u e a rela tionship with her mother, evidenc e that

C.S.F. broug ht N.E. to her thera py appointments and obtained her medications as direc ted, and

sever al witnesses’ testimony that C.S.F. loved and c are d for N.E . and that they appea red to ha ve a
close re lationship.

To be sure, there was considera ble evidenc e that C.S.F. dear ly lo v es N. E

. and has

worke d hard to provide her w ith all her mater ial needs. N .E. did testify that she l oved her mother

and wanted to continue to have a rela tionship wi t h h er no matter the outcome of this proce eding

. Many witnesses testified that, in the y ear s leading up to N.E.’s hospitaliz ation, N.E. and C.S.F.

seeme d to have a very close and loving rela tionship. Howeve r, as deta iled above, there wer e

numerous witnesses who testified that C.S.F.’s mental issues had contributed to N.E.’s mental health

crises and that C.S.F. would be unable to car e for N.E. proper ly as long as she ref used or was unable

to addre ss her issues. N.E., who has require d ho s p i t al i z ati on three times due at least in part to
suicidal ideation, did not believe it would be safe for her to live with C.S.F. while C.S.F. ref used to

14addre ss her mental health concer ns and often beca

me di stressed or anxious befor e and aft er v isits

with C.S.F. The evidenc e was that N.E. require s a specia l kind of car e and pare nting, and numerous
wi t n es s es t estified that C.S.F. was and continues to be unable to provide that kind of g uidanc e.
Acc ording to sever al witnesses, N.E. has made g ood prog ress at Settlement Home; is lea rn i n g t o
self-r eg ulate, rea ct more appropr iately , and proce ss emotions; and continues to benefi t fr om the

on-g oing support she rec eives from living at Settlement H ome. The De partment eventua lly hopes

to place her with an adoptive family or a family that is participa ting in Settlement Home’s foster- toadopt prog ram. Ba sed on thi s re co rd an d t h e fac tors we are to consider when weig hing a bestinterest deter

mination, see Holley v. Adams , 544 S.W .2d 367, 371-72 (Tex. 1976 ), we h old that

sufficie nt evidenc e supports the j u ry ’s finding that termination is in N.E.’s best interest, see Liu , 273 S.W .3d at 797-98. We over rule C.S.F.’s third a

nd final issue.

Conclusion Having considere d and overr uled C.S.F.’s appellate issues, we aff irm the trial court’s

decr ee te rminating C.S.F.’s pare ntal rig hts.

__________________________________________ David Pury ear , J ustice

Be fore J ustices Pury ear , Pemberton, and B ourland

Affir med

Filed: Mar ch 13, 2015

15