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In re J.N.G.

Court of Appeals of Texas, Fourth District, San Antonio

March 28, 2018

IN THE INTEREST OF J.N.G. and C.Y.G.

          From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-01667 Honorable Charles E. Montemayor, Associate Judge Presiding

          Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Karen Angelini, Justice.

         Michael G. appeals the trial court's order terminating his parental rights to his two children: C.Y.G., who is two years old, and J.N.G., who is one year old. He argues that the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights is in his children's best interest. With respect to C.Y.G., he argues the trial court erred in terminating his parental rights to C.Y.G. pursuant to section 161.002(b) because he clearly and unequivocally claimed to be the child's father at trial. We affirm.

         Background

         In late April 2016, the Department of Family and Protective Services received a referral alleging neglectful supervision of C.Y.G. C.Y.G.'s mother was pregnant and had been admitted to the hospital for cramping due to a ruptured placenta. Selene Mendez, a caseworker for the Department, testified at trial that C.Y.G.'s mother admitted to using heroin while pregnant. On May 1, 2016, C.Y.G.'s mother gave birth to J.N.G., whose meconium tested positive for opiates. According to Mendez, J.N.G. had significant withdrawal symptoms and had to go through "detox" at the hospital, suffering from shaking and an inability to sleep.

         Mendez testified that at first, family services were offered. Attempts were made to locate the father, Michael G. According to Mendez, in July 2016, Michael G. was found shoplifting from a store with his one-year-old child, C.Y.G., in his possession. When the police "attempted to arrest him, he ran from the police and left [C.Y.G.] in the store abandoned." Michael G. was arrested and "incarcerated for endangerment of a child and abandonment of a child without intent to return." On August 1, 2016, the underlying petition to terminate the parental rights of the mother and Michael G. was filed. Mendez testified the court-ordered service plan required Michael G. to "demonstrate stability of the home, employment, and to remain out of jail."

         Mendez testified Michael G. was not incarcerated continuously during the pendency of this case. Michael G. was "released in February of 2017" but "was incarcerated again in July of 2017." Mendez testified that on July 14, 2017, Michael G. "was arrested for possession of a controlled substance, less than one gram." He remained incarcerated at the time of trial. According to Mendez, Michael G. had not attempted to contact her to engage in any services:

The only time that I spoke to him or that he reached out to me was during the court hearing on May 30th of 2017. . . . I attempted to make contact with [Michael G.], but he left the courtroom without giving me any contact information. I contacted his attorney to see if maybe perhaps he gave her his contact information, but he did not. I reached out to him in June, again in July, and then that's when I found out that he had been incarcerated in August. He never reached out to me.

         Mendez testified she visited Michael G. in jail on August 8, 2017 and asked him if he had engaged in any services while incarcerated. He replied that he did not know there were any services available. "He hadn't looked into it." Michael G. had not engaged in any services. According to Mendez, he did not inform her that he had taken anger management classes or been enrolled in a 12-step program.

         Mendez testified the children were currently with foster parents who wished to adopt them. J.N.G. has a medical condition related to his esophagus, and has had a "triple procedure" in an attempt to correct his breathing. Mendez testified J.N.G.'s condition remains ongoing and requires many appointments with specialty providers. Mendez testified J.N.G.'s current foster parents are making sure that he is getting all the proper care he needs.

         According to Mendez, it would be in the best interest of the children to terminate Michael G.'s parental rights because he "has not demonstrated that he is able to take care of his children." "He has been in and out of jail throughout the whole legal case, and has never reached out to [Mendez] to see what he can do to regain custody of his children." Mendez testified Michael G. had not demonstrated he could provide a safe and stable home for the children. Nor had he demonstrated that he could refrain from illegal activity.

         Michael G. testified at trial that he is the father of J.N.G. and C.Y.G. He stated he had not received a copy of his service plan. He claimed that he had reached out to Mendez "several times" but said it had been "pretty difficult" to contact her because of his incarceration. Michael G. testified he was aware of what he needed to do in this case and claimed to have taken "it upon [himself] without the service plan to go get the psych evaluation." Michael G. was then asked why he did not visit the children during the time he was not incarcerated. He replied,

Due to the fact of the false allegations and the time that I spent in jail under that crime, or alleged crime, I lost everything and I was very unstable and I had to rebuild from ground zero, so it took me some time in order to build up some money, find ...

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