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In re J.H.G.

Court of Appeals of Texas, First District

June 1, 2017

IN THE INTEREST OF J.H.G., A CHILD

         On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2015-05800J

          Panel consists of Justices Jennings, Huddle and Lloyd.

          MEMORANDUM OPINION

          Russell Lloyd Justice

         Father is appealing the termination of his parental rights with regard to his son, J.H.G., and argues that there is legally and factually insufficient evidence to support the trial court's findings that he endangered J.H.G. and that termination of his parental rights is in J.H.G.'s best interest. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(E), (b)(2) (West Supp. 2016).[1] We affirm the trial court's judgment.

         Background

         J.H.G. came to the Texas Department of Family and Protective Services's attention following a report of neglectful supervision made on May 28, 2015. The report alleged that J.H.G.'s mother regularly left him and his two young siblings unattended in order to use illegal drugs. After Mother tested positive for cocaine in July 2015, DFPS placed the children with their maternal aunt. Although Mother agreed to complete a substance abuse program in September 2015, she was arrested before being accepted into the program, and was subsequently incarcerated. The record reflects that around the time Mother was arrested, the maternal aunt informed DFPS that she could no longer care for J.H.G. According to DFPS, J.H.G.'s father was incarcerated and there were no other viable relatives available to care for the boy.

          On October 12, 2015, DFPS filed a petition for protection of a child for conservatorship, and for termination in suit affecting the parent-child relationship. On the same day, the trial court signed an order placing J.H.G. in DFPS's emergency custody.

         After an adversary hearing on October 22, 2015, the court found there was a continuing danger to J.H.G., and appointed DFPS as J.H.G.'s temporary managing conservator. The record reflects that Father attended the October 22 hearing and was ordered to provide samples for DNA and drug testing. The DNA test result showed that he was J.H.G.'s father. The drug test showed that Father was positive for cocaine, marijuana, amphetamine, and methamphetamine.

         The record reflects that Mother participated in a pre-trial family evaluation and provided some history regarding her relationship with Father. According to Mother, she was fourteen years old when she met Father and became pregnant with J.H.G. Mother told the evaluator that she told Father that he was J.H.G.'s father "when [Father] was released from jail" in 2010. According to Mother, "[Father] has met J.H.G. but is not involved in his life."

         The record reflects that Father was ordered to submit to drug testing in December 2015 and that, although he reported to a drug testing agency, Father walked out without providing a sample. Father's lack of participation is considered a positive drug test. Father also tested positive for cocaine and marijuana on April 1, 2016 and June 28, 2016. Father's wife, J.H.G.'s stepmother, also participated in a drug test on June 28, 2016, and she also tested positive for cocaine and marijuana. Father's drug tests in July and August 2016 were both negative.

         On October 4, 2016, the first day of trial, J.H.G.'s caseworker testified that Father completed his family service plan, completed a psychosocial assessment, individual counseling, and outpatient substance abuse treatment, maintained contact with his caseworker, provided proof of stable housing and employment, participated throughout the case, and provided for J.H.G. Despite his general compliance with the family service plan, however, Father had not refrained from using drugs, as evidenced by his positive tests in October 2015 (cocaine, amphetamine, methamphetamine, and marijuana) and June 2016 (cocaine). The caseworker further noted that Father's wife had also tested positive for cocaine in June 2016. She also testified that Father's drug tests in July and August 2016 were both negative. She explained, however, that despite Father's recent negative tests, DFPS was still concerned about Father's drug use because he had been unable to demonstrate sobriety for a period of at least six months.

         In addition to his drug usage, J.H.G.'s caseworker also testified about Father's extensive criminal history. Father's criminal records, which were admitted into evidence at trial, reflect that Father has committed violent and non-violent crimes before and after J.H.G. was born in late 2004.

          Specifically, the record reflects that Father pleaded guilty to possession of marijuana in January 2004. In February 2006, Father pleaded guilty to aggravated assault with a deadly weapon and was sentenced to five years' incarceration. He also pleaded guilty to harassment of a public servant on the same date and he received another five-year sentence. Both offenses occurred in September 2005-less than a year after J.G.H.'s birth. Father was released from prison in 2010.

         In March 2012, Father was charged with robbery after he and three women allegedly stopped the car that Father's ex-girlfriend was driving and pulled the woman out of the car, and the women "began to kick her in her head and body." They then stole the victim's purse and cell phone. The charge, however, was dismissed in January 2013, because Father pleaded guilty to the offense of assaulting a public servant in an unrelated case, and he was sentenced to two years' incarceration.

         Father also pleaded guilty to stealing another ex-girlfriend's cell phone and laptop in January 2014, and was sentenced to eighty days in jail. In March 2014, Father was charged with possession of cocaine and attempting to escape a correctional facility. He subsequently pleaded guilty to the possession charge, was sentenced to eight months' incarceration on that offense, and the attempted escape charge was dismissed.

          Father's most recent criminal offenses occurred a little over a month before DFPS received the neglectful supervision report on May 28, 2015. Father was charged with terroristic threat for threatening to assault Father's mother in April 2015. He also pleaded guilty to failing to stop and give information after driving his car into an electric pole, and leaving his burning vehicle at the scene of the accident. He was found at his residence four blocks from the accident, and he subsequently admitted that he had used cocaine earlier that day. Father was serving a sixty-day jail sentence for this offense when DFPS received the neglectful supervision report.

         The caseworker testified that Father visited J.H.G. and brought the boy shoes and clothes. She said that J.H.G. enjoys the visits, but denied that there was a strong bond between J.H.G. and Father. [Id.] She stated the lack of bond was because "[J.H.G.] didn't have a relationship with his father until this case." When asked about Father's relationship with Mother, the caseworker testified that Father and Mother "would go back and forth. Mother would not tell the truth. And then once we did the DNA testing, he found out that he was indeed [the] father and he wanted to be a part of [J.H.G.]'s life full time."

         The caseworker also testified that J.H.G. has been diagnosed with ADHD and bipolar disorder and was currently placed in a residential treatment center. Although J.H.G. does well in the treatment center most of the time, he still has anger issues and gets into fights, and this behavior prevents him from being placed in a foster home.

         DFPS's Permanency Plan and Progress Report, which was admitted into evidence, states:

[J.H.G.] is a healthy and active 11 year old boy. [J.H.G.] has displayed and been observed with negative behaviors at his placement and at school. [J.H.G.] is physically and verbally aggressive. [J.H.G.] requires Special Education. [J.H.G.] participates in therapy weekly and also receives general tutoring for his school work. [J.H.G.] is diagnosed with ADHD and Bipolar.

         The report also reflects that, after being taken into DFPS's custody, J.H.G. now receives weekly therapy to address his behavioral issues, general tutoring to assist him with his school work, and he is on medication to treat his ADHD and his impulse control issues. The report also includes several recommendations for J.H.G.'s care based on his psychological evaluation.

• [J.H.G.] will function best in well-structured, consistent and predictable environments. He will need considerable structure and supervision as well as a support[ive] and nurturing environment where limits are clear. He will require a lot of positive reinforcement for even the ...

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