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In re H.O.

Court of Appeals of Texas, First District

June 21, 2018


          On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2016-00350J

          Panel consists of Justices Keyes, Brown, and Lloyd.



         We withdraw our February 6, 2018 opinion and judgment and issue this opinion and judgment in their stead.[1] Our disposition remains unchanged.

          In this parental-rights termination case, appellant W.H.O. (Father) appeals the trial court's decree terminating his parental rights to his daughter, H.O. In two issues, Father contends that the Department of Family and Protective Services (DFPS) presented factually insufficient evidence to support the trial court's statutory predicate findings under Family Code sections 161.001(b)(1)(E) and (Q).

         We affirm.


         M.H. (Mother) gave birth to H.O. on December 26, 2015.[2] Mother had overdosed on Nyquil during her pregnancy, which led to a placenta abruption and H.O.'s premature birth. Both Mother and H.O. tested positive for amphetamines at the time of birth, and H.O. was diagnosed with metabolic acidosis and respiratory distress. DFPS received a referral concerning this case two days after H.O.'s birth.

         On January 22, 2016, nearly one month after H.O.'s birth, DFPS filed suit seeking emergency possession of H.O., appointment as H.O.'s temporary sole managing conservator, adjudication of Father's parentage, and termination of Mother's and Father's parental rights to H.O. DFPS initially sought termination of Father's parental rights under Family Code section 161.001(b)(1)(D), (E), (N), and (O). DFPS's petition was accompanied by an affidavit completed by caseworker Danielle Prejean, who set out facts relevant to H.O.'s initial referral to DFPS. Prejean also averred that Father admitted to her that he had a criminal history, including a burglary conviction in Illinois, but he denied using illegal drugs. She averred that she repeatedly told Father that he and Mother needed to take a drug test before the hospital would discharge H.O. to their care, but Father refused to take a drug test. The trial court appointed DFPS as H.O.'s temporary managing conservator, and H.O. was placed with foster parents.

         On March 2, 2016, and March 14, 2016, the trial court ordered both Mother and Father to provide a sample for a drug screening. Records from the laboratory conducting the drug test reflected that Father "walked out" before a sample could be collected on March 2, 2016, which DFPS considered to be a "positive" result.[3]Father did submit to drug testing on March 14, 2016, and his hair sample tested positive for amphetamines, cocaine, cocaine metabolites, marijuana, and marijuana metabolites. Another sample, collected the same day, tested positive for amphetamine and methamphetamine, but tested negative for all other drugs.[4] The trial court also ordered Father to submit to a DNA test, which he did, and which confirmed H.O.'s parentage.

         On June 6, 2017, more than a year after the initial referral of H.O., DFPS amended its petition to allege an additional predicate act supporting the termination of Father's parental rights. Specifically, DFPS alleged that Father had knowingly engaged in criminal conduct resulting in his conviction for an offense and confinement and an inability to care for H.O. for not less than two years from the date of the filing of the petition, pursuant to section 161.001(b)(1)(Q).

         The trial court held a bench trial on July 17, 2017. H.O. was approximately eighteen months old at the time of trial. The trial court admitted Mother's affidavit voluntarily relinquishing her parental rights, and Mother testified that she freely executed that affidavit and that she believed giving up her parental rights was in H.O.'s best interest. The trial court also admitted several orders from various status hearings that occurred during the pendency of the case. These orders included findings by the trial court that DFPS had made sufficient efforts to notify relatives of H.O. that she had been removed from her home and that the court had reviewed DFPS's efforts to identify relatives of H.O. who could provide a safe environment from her if she were not returned to Mother and Father. See Tex. Fam. Code Ann. § 262.1095(a) (West Supp. 2017) (requiring DFPS to notify child's relatives within third degree of consanguinity when DFPS takes possession of child).

         Father appeared at the trial and testified that he was arrested for possession of methamphetamine on January 25, 2016, three days after H.O. first came into DFPS's custody.[5] Father pleaded guilty to that offense, and the criminal court signed a judgment of conviction on April 28, 2017, and assessed his punishment at four years' confinement. Father testified that he was "under the impression that non-aggravated cases only do 25 percent [of the assessed sentence] and [that he is] eligible for parole immediately once [he] enter[s] TDC." Father acknowledged, however, that his parole eligibility was not guaranteed and that, hypothetically, he could serve the entire four-year sentence. The trial court entered his judgment of conviction into evidence, and this judgment reflected that Father had credit for time served from January 25, 2016, to February 10, 2016, and from July 20, 2016, to April 28, 2017, or approximately nine and a half months' worth of time credited against his sentence.

         Father testified that he had previously been incarcerated in Illinois for three years for a burglary conviction before he was released on parole for that offense. Father's parole was revoked in September 2016, and he stated that he would be discharged from that offense approximately one month from the date of trial, or on August 14, 2017. Father agreed that he was not in a position to take care of H.O. until such time as he obtained parole for the possession of a controlled substance conviction.

         On cross-examination, Father testified that he has another child who is in the care of a family friend in Illinois and that he has contact with that child when not incarcerated. He stated that he believed he would "make parole once [he] reach[es TDCJ] because [he has] not caused any problems since [he has] been [in custody] and it is a minor drug offense." Father also testified that he had lived in the Houston area for around three years and, at the time of his arrest, he had a job in construction putting up drywall. He stated that his mother had told him that he can live with her after he is paroled, and while his mother will not raise H.O. on her own, she will help him raise H.O.

         Brian Johnson, the DFPS caseworker assigned to H.O.'s case at the time of trial, testified that H.O. was currently in a foster home placement that was going "very well" and that was meeting her physical and emotional needs. He testified that DFPS's long-term goal for H.O. was unrelated adoption. He stated that DFPS ...

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