In the Interest of B.L.M.

It cannot be said that pleading the parent-child relationship should be terminated under the mental-health grounds found in Texas Family Code �161.003 anticipates the defense of a possible ADA violation. J.M. did not offer any evidence at trial concerning what accommodations or special services he contends should have been provided to him. There is simply no comparison between the present facts and the situations in Phillips and Shoemake.

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Click here for the full text of this decision FACTS:Following a bench trial, the trial court found that the appellant J.M.’s parent-child relationship with his daughter, B.L.M., and son, J.L.M., should be terminated and entered judgment accordingly. J.M. complains that the evidence is factually insufficient to support the statutory grounds relied upon by the trial court to terminate his parental rights and that the Texas Department of Protective and Regulatory Services violated the Americans With Disabilities Act in the course of its treatment of him. HOLDINGAffirmed. The evidence presented is such that a fact-finder could reasonably form a firm belief or conviction that in all reasonable probability J.M. will be unable to provide for the children’s physical, emotional and mental needs until their 18th birthdays. J.M. himself testified that he did not intend to take medication for his disease. He denied that he had a disease. Cheryl Polly, a licensed professional counselor, and Dr. David Sabine testified that paranoid schizophrenia is a life-long illness requiring consistent treatment and medication to enable an individual with the disease to function at a high level. They stressed that a person suffering from paranoid schizophrenia must take medication in order to maintain a lifestyle conducive to parenting children. They testified that the likelihood of a noncompliant paranoid schizophrenic consistently functioning at a high level is extremely low. Sabine explained the grave risks medication noncompliant paranoid schizophrenics create for those around them. J.M. contends that the ADA applies to termination proceedings and that TDPRS violated the ADA in the course of its treatment of J.M. Specifically, J.M. asserts that TDPRS violated the ADA by failing to accommodate his mental deficiencies and provide him with services designed for his special needs as a schizophrenic. TDPRS responds that J.M.’s ADA complaint is in the nature of an affirmative defense and that J.M. has waived this complaint by failing to plead it and prove it in the trial court. The court agrees with TDPRS that J.M.’s ADA complaint is in the nature of an affirmative defense. In Re: C.M., 996 S.W.2d 269 (Tex. App. � Houston [1st Dist.] 1999, no pet.). A defendant, however, must plead, prove and secure findings sustaining an affirmative defense. Woods v. William M. Mercer Inc., 769 S.W.2d 515 (Tex. 1988). J.M. did not plead or prove his contention that TDPRS violated the ADA by failing to accommodate his mental deficiencies and provide him with services designed for his special needs as a schizophrenic. Accordingly, J.M.’s ADA complaint was waived. J.M. contends that, although he failed to plead this affirmative defense, “there is no doubt that [TDPRS] anticipated it under its pleadings by alleging termination under the ‘mental health’ ground” and that he established this defense as a matter of law at trial. J.M. relies upon Shoemake v. Fogle, Ltd., 826 S.W.2d 933 (Tex. 1992), and Phillips v. Phillips, 820 S.W.2d 785 (Tex. 1991), for the proposition that even if a defendant does not plead an affirmative defense the defendant may raise the defense on appeal when the plaintiff anticipated the defense in its pleading and the defense is established at trial as a matter of law. The reasoning set forth in Phillipsand Shoemakeis inapplicable to this case. The court in Phillipsheld that the plaintiff’s pleading that an agreement was illegal on its face anticipated the defense of illegality. Similarly, in Shoemake, the court concluded that “[i]f a child sued a parent for the negligent performance of parental duties, the pleading would effectively anticipate the defense of parental immunity.” Here, it cannot be said that, pleading the parent-child relationship should be terminated under the mental health grounds found in family code �161.003 anticipates the defense of a possible ADA violation. Additionally, J.M. did not offer any evidence at trial concerning what accommodations or special services he contends should have been provided to him. There is simply no comparison between the present facts and the situations in Phillipsand Shoemake. OPINION:Walker, J.; Day, Livingston and Walker, JJ.

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