                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-18-00379-CV

                       IN THE INTEREST OF T.W. AND X.W.,
                                  CHILDREN



                               From the 85th District Court
                                   Brazos County, Texas
                             Trial Court No. 17-002245-CV-85


                               MEMORANDUM OPINION

        After a bench trial, the trial court rendered a final order terminating the parental

rights of Appellant R.W.1 to his children, T.W. and X.W. V.A., the children’s mother,

executed an affidavit of relinquishment of parental rights prior to trial and does not

appeal.

        Randy raises two issues on appeal: (1) the evidence is factually insufficient to

support the best-interest finding, and (2) the trial court erred in failing to allow him to

represent himself. We affirm the trial court’s termination order.




1
 We will refer to the father as “Randy,” to the children by their initials, and to other family members by
pseudonyms.
                                         Standard of Review

          In parental termination cases, due process requires the application of the clear and

convincing evidence standard of proof. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Both

legal and factual sufficiency reviews in termination cases require consideration of

whether the evidence is such that a factfinder could reasonably form “a firm belief or

conviction as to the truth of the allegations sought to be established.” Id. at 264.

          In a factual sufficiency review, a court of appeals must give due consideration to

evidence that the factfinder could reasonably have found to be clear and convincing. Id.

at 266.

           [T]he inquiry must be “whether the evidence is such that a factfinder could
          reasonably form a firm belief or conviction about the truth of the State’s
          allegations.” A court of appeals should consider whether disputed
          evidence is such that a reasonable factfinder could not have resolved that
          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.

Id. (footnotes and citations omitted); see also In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

          We give due deference to the factfinder’s findings and must not substitute our

judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The

factfinder is the “sole arbiter when assessing the credibility and demeanor of witnesses.”

In re A.B., 437 S.W. 3d 498, 503 (Tex. 2014). While the reviewing court must detail the




In the Interest of T.W. and X.W., Children                                                    Page 2
evidence relevant to the issue of parental termination when reversing a finding based

upon insufficient evidence, it need not do so when affirming a verdict of termination. Id.

        In a proceeding to terminate the parent-child relationship brought under Family

Code § 161.001, the Department must establish by clear and convincing evidence two

elements: (1) one or more acts or omissions enumerated under subsection (b)(1) of §

161.001, termed a predicate violation; and (2) that termination is in the best interest of the

child. TEX. FAM. CODE ANN. § 161.001(b)(1), (2); Swate v. Swate, 72 S.W.3d 763, 766 (Tex.

App.—Waco 2002, pet. denied).                The factfinder must find that both elements are

established by clear and convincing evidence, and proof of one element does not relieve

the Department of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370

(Tex. 1976); Swate, 72 S.W.3d at 766. Randy does not challenge the trial court’s findings

regarding the predicate violation under § 161.001(b)(1)(O), but only the finding that

termination is in the best interest of the children.

                                    Best Interest of the Children

        A strong presumption exists that maintaining the parent-child relationship is in a

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re L.M., 104 S.W.3d 642,

647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). But, it is also presumed that the

prompt and permanent placement of a child in a safe environment is in the child’s best

interest. See TEX. FAM. CODE ANN. § 263.307(a); In re D.S., 333 S.W.3d 379, 383 (Tex. App.—

Amarillo 2011, no pet.).



In the Interest of T.W. and X.W., Children                                               Page 3
        In determining the best interest of a child, a number of factors are considered,

including: (1) the desires of the child; (2) the emotional and physical needs of the child

now and in the future; (3) the emotional and physical danger to the child now and in the

future; (4) the parental abilities of the individual seeking custody; (5) the programs

available to assist this individual; (6) the plans for the child by this individual; (7) the

stability of the home; (8) the acts or omissions of the parent that may indicate the existing

parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions

of the parent. Holley, 544 S.W.2d at 372. This list is not exhaustive, but simply indicates

factors that have been or could be pertinent. Id. A single factor may be adequate in a

particular situation to support a finding that termination is in the best interest of a child.

See In re B.H.R., 535 S.W.3d 114, 123 (Tex. App.—Texarkana 2017, no pet.). We may also

consider evidence supporting violation of one or more of the predicate acts in the best-

interest analysis. In re A.M., 495 S.W.3d 573, 581 (Tex. App.—Houston [1st Dist.] 2016,

pet. denied) (citing C.H., 89 S.W.3d at 27-28).

        In regard to the desires of T.W. and X.W., all of the witnesses testified that T.W.

and X.W. love Randy and want to live with him. There were never any allegations that

Randy had physically harmed the children or that they were neglected.

        All other issues relevant to the best interest analysis are dominated by Randy’s

mental health issues—his failure to acknowledge his mental illness and his failure to

comply with his prescribed medication regimen. While mental illness by itself is not a

ground for parental termination, the impact of a parent’s mental illness on his ability to
In the Interest of T.W. and X.W., Children                                              Page 4
parent and the stability of the home are relevant factors in the best interest of the child

analysis. In re R.J., 568 S.W.3d 734, 756 (Tex. App.—Houston [1st Dist.] 2019, no pet.). A

trial court may consider a parent’s mental state as endangering to a child’s well-being,

and a parent’s lack of progress in managing his mental-health condition is relevant to the

best-interest determination. In re K.S.O.B., No. 01-18-00860-CV, 2019 WL 1246348, at *25

(Tex. App.—Houston [1st Dist.] Mar. 19, 2019, no pet.) (mem. op.); see also In re C.D., 664

S.W.2d 851, 853 (Tex. App.—Fort Worth 1984, no writ) (“While mental incompetence or

mental illness alone are not grounds for termination of the parent-child relationship,

when a parent’s mental state allows him to engage in conduct which endangers the

physical or emotional well-being of the child, that conduct has bearing on the advisability

of terminating the parent’s rights.”). Evidence that a parent is non-compliant with

prescribed psychiatric medication is not consistent with providing a safe and stable

environment for the children. In re J.-M.A.Y., No. 01-15-00469-CV, 2015 WL 6755595, at

*7 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, pet. denied) (mem. op.).

        Randy did not testify at the termination hearing. All of the witnesses who did

testify established that Randy has had psychiatric issues for most of his life. The trial

court heard the testimony of Randy’s mother, Peggy, Randy’s sister, Diana, and

employees from the Department of Family and Protective Services, including Christy

Gatlan, an investigative supervisor, Kelly Allen, a department supervisor for the

conservatorship division, and Lee Right, a CASA representative.




In the Interest of T.W. and X.W., Children                                           Page 5
        The investigation in this case began when the Department received a referral

regarding concerns for T.W. and X.W. due to Randy’s mental instability. Randy was

taken to the emergency room for evaluation after he alleged that his children had placed

objects in his rectum and glued his butt cheeks together. A medical evaluation did not

substantiate Randy’s claims, and the medical staff believed Randy should be seen by

MHMR. Randy was already an MHMR client and had been prescribed medication to

treat his schizophrenia. Randy had quit taking his medication, however, and there were

concerns that he was becoming aggressive. Gatlan testified that “[h]e would often yell,

throw things, fighting, making threats, and cursing in the home around the children.”

        When employees of the Department attempted to contact Randy at his residence,

Randy refused to provide access to the children. The Department then did welfare checks

of T.W. and X.W. at their schools and interviewed Peggy. While the investigation by the

Department was continuing, Randy was involuntarily hospitalized due to his mental

condition. The Department was given emergency custody of the children after a hearing.

T.W. and X.W. were first placed in foster care and then placed with Diana, who was

willing to care for the children on a long-term basis. When Randy was questioned on the

day the children were removed, he was not threatening or assaultive. Randy admitted

that he had been prescribed medication through MHMR, but was not taking the

medication because he did not feel that he needed it.




In the Interest of T.W. and X.W., Children                                        Page 6
        Randy first exhibited symptoms of mental illness in middle school when he told

Peggy that he had been hearing voices. As the voices did not tell Randy to do anything

bad, Peggy just “left it alone” because Randy did not want to attend counseling. Peggy

further testified that Randy’s first mental health hospitalization occurred when Randy

was in his twenties. At the time of the final termination hearing, Randy was forty-two

and had been involuntarily hospitalized as a result of his mental illness on at least three

occasions. Randy would not agree to the release of all of his medical records, and the

records that the Department did obtain from MHMR went back only to 2012. Randy’s

last diagnosis through MHMR was that he suffered from paranoid schizophrenia with

anti-social personality disorder.

        Peggy was familiar with Randy’s present situation because Randy has lived with

her for the past ten years. Peggy noted that when Randy is not taking his prescribed

medications, he will go to his room and talk to himself. Peggy also testified that T.W. and

X.W. were a “little nervous” and a “little frightened” when Randy was accusing the

children of harming him, but she did not believe that the children were afraid of him. She

noted, “They might have been just nervous of the situation. I don’t think they was afraid

that he was gonna do something to them.” Peggy also testified that when Randy takes

his medication, he is calmer with the children and not as agitated.

        The Department attempted to make a number of appointments with Randy, but

he failed to appear. The Department also made appointments for Randy with several


In the Interest of T.W. and X.W., Children                                           Page 7
mental health professionals that he also failed to keep, even though the Department was

paying for the services and providing transportation. Randy explained that he refused

mental health services because he did not believe he needed help. Randy did eventually

attend some counseling sessions through MHMR, but he failed to follow through with

the recommendations made by MHMR.

        Randy sent numerous texts to various individuals, including Department

employees, which included threats, flirtatious comments, and pornographic videos.

Randy also repeated the accusations against X.W. and T.W. that led to the Department’s

intervention, and he requested that the Department monitor his phones because he

believed someone had taken his money and damaged his computer.

        Allen testified that Randy has three misdemeanor convictions for violating

protective orders dating back to 2004. Allen further noted that Randy has been convicted

of harassment, assault/family violence, and assault/family violence with impeding

breath. The last family violence conviction involved a former girlfriend that Randy

choked as a result of delusions he had about her. Allen also testified that during the

investigation, Randy threatened to light the house on fire while the children were still

inside. Both Allen and Peggy testified regarding an additional incident when Randy

became physically aggressive with Peggy by kicking or banging on her bedroom door,

which frightened Peggy.




In the Interest of T.W. and X.W., Children                                        Page 8
        Allen testified that the Department feared that the children could be the targets of

Randy’s aggression because of his delusion that they had harmed him. This belief was

bolstered by the family violence conviction that was instigated by Randy’s delusions

regarding his ex-girlfriend. Allen also noted that Randy threatened to kill Peggy in one

of the many text messages he sent to various Department employees.

        Allen also testified that both T.W. and X.W. were prescribed psychotropic drugs.

She testified that the Department was concerned that the children would not be given

their medication appropriately if placed back with Randy because he refused to comply

with any medication in regard to his own mental health.

        Allen and others testified that granting Randy possessory conservatorship while

Peggy or Diana was granted managing conservatorship would not be in the best interest

of the children because of the danger that if something happened to the managing

conservator, custody would then revert back to Randy.

        After considering the testimony and evidence, the trial court entered an order that

terminated Randy’s rights and named Diana as the managing conservator of X.W. and

T.W. The ruling did not exclude Randy from communicating with X.W. and T.W., but

left the means and manner of such communications up to Diana.

        Viewing all of the evidence in a neutral light in relation to the Holley factors, the

trial court could have reasonably formed a firm belief or conviction that termination of

Randy’s parental rights was in the children’s best interest. See In re H.R.M., 209 S.W.3d


In the Interest of T.W. and X.W., Children                                             Page 9
at 108; In re C.H., 89 S.W.3d at 28; see also Holley, 544 S.W.2d at 371-72. Accordingly, the

evidence is factually sufficient to establish that terminating Randy’s parental rights is in

the best interest of T.W. and X.W. We overrule Randy’s first issue.

                                         Self-Representation

        In his second issue, Randy asserts that the trial court erred in failing to allow him

to represent himself during the termination proceeding. While a criminal defendant has

the right to waive counsel and represent himself, the same right does not exist in a

termination proceeding once counsel has been appointed. In re A.H.L., III, 214 S.W.3d 45,

51 (Tex. App.—El Paso 2006, pet. denied). See also In re H.M.P., No. 13-18-00387-CV, 2018

WL 5832099, at *5 (Tex. App.—Corpus Christi Nov. 8, 2018, pet. denied) (mem. op.); In re

R.H., No. 01-14-00874-CV, 2015 WL 4594557, at *7 (Tex. App.—Houston [1st Dist.] July

28, 2015, no pet.) (mem. op.).

        The United States Constitution does not require appointed counsel in all

termination proceedings, but Texas has adopted a statutory scheme that mandates “the

appointment of an attorney ad litem for an indigent parent who opposes the termination

of the parent-child relationship in a suit filed by a governmental entity.” In re E.A.F, 424

S.W.3d 742, 747 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (citing Lassiter v. Dep’t

of Social Servs., 452 U.S. 18, 27-32, 101 S.Ct. 2153, 2159-62, 68 L.Ed.2d 640 (1981)); TEX. FAM.

CODE ANN. § 107.013. “The plain language of the Code deprives the trial court of the

authority to permit the withdrawal of such attorney ad litem absent a finding of good

cause. . . .” E.A.F., 242 S.W.3d at 749; TEX. FAM. CODE ANN. § 107.016(3)(C). Additionally,



In the Interest of T.W. and X.W., Children                                              Page 10
a parent’s waiver of the right to counsel must, at the very least, be knowing and

intelligent. See In re C.L.S., 403 S.W.3d 15, 19-20 (Tex. App.—Houston [1st Dist.] 2012, pet.

denied); see also In re A.J., 559 S.W.3d 713, 717-18 (Tex. App.—Tyler 2018, no pet.).

        Randy cites to Rule 7 of the Rules of Civil Procedure in support of his argument

that the trial court erred in not allowing him to represent himself. Rule 7 provides “[a]ny

party to a suit may appear and prosecute or defend his rights therein, either in person or

by an attorney of the court.” TEX. R. CIV. P. 7. However, “[t]he right to self-representation

provided by Rule 7 is not absolute.” A.H.L., 214 S.W.3d at 52. The provisions of the

Family Code regarding appointment of counsel override any conflicting rule of

procedure. See Mooti v. Aldirawi, No. 10-12-00161-CV, 2014 WL 2719916, at *7 (Tex.

App.—Waco June 12, 2014, pet. denied) (mem. op.) (quoting Pena v. Garza, 61 S.W.3d 529,

531 (Tex. App.—San Antonio 2001, no pet.)) (“The rules of procedure are general rules;

statutes are specific. Thus, when the two conflict, the statute trumps the rule.”).

        Because of Randy’s mental health issues and his demeanor during the termination

proceeding, the trial court did not err in denying his request to represent himself. Randy

first requested leave to represent himself during the first day of the termination hearing,

but the trial court was able to persuade Randy to allow his attorney to continue

representing him. The trial court summarized his colloquy with Randy:

        All right. So I interpret all of this decision, all this dialogue that I’ve had
        with [Randy] as his decision that he’s going to relent and let Mr. Thomas
        represent him, and we’ll see what happens here today.

        During the second day of the termination hearing, Randy again requested leave to

represent himself. The trial court noted during the first day of the termination hearing:

In the Interest of T.W. and X.W., Children                                                Page 11
        Listen. Listen to yourself. You cannot stand in silence. You open your
        mouth and just a torrent of words start coming out that I can’t even follow,
        that don’t have anything to do with what we’re dealing with at the moment.

Randy’s behavior on the second day of the termination hearing was similar to that

exhibited on the first day—he attempted to raise collateral matters rather than focusing

on the issues central to the termination. Randy exhibited little self-control, talked about

the conspiracy against him, and accused the court of bias and prejudice.          Randy’s

behavior and his history of mental illness justified the trial court in determining that

Randy’s request to represent himself, and thereby waive appointed counsel, was not a

knowing and intelligent decision. We overrule Randy’s second issue.

                                             Conclusion

        Having overruled both issues presented, we affirm the judgment of the trial court.




                                                    REX D. DAVIS
                                                    Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed May 22, 2019
[CV06]




In the Interest of T.W. and X.W., Children                                             Page 12
