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In re A.J.R.

Court of Appeals of Texas, Fourteenth District

April 9, 2019


          On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2017-04707J

          Panel consists of Justices Wise, Zimmerer, and Spain.



         This accelerated appeal arises from a final order in a suit in which termination of the parent-child relationship was at issue. See Tex. Fam. Code Ann. § 109.002(a-1). The child is Alex; his parents are L.D.J. (Mother) and appellant A.R. (Father).[1]The trial court terminated each parent's rights and appointed the Texas Department of Family and Protective Services (the Department) to be Alex's managing conservator.

         On appeal, Father challenges the sufficiency of the evidence to support termination. We conclude legally and factually sufficient evidence supports the trial court's findings that Father endangered Alex and that termination of his parental rights is in Alex's best interest. Therefore, we affirm the trial court's final order.


         A. Removal

         The following facts come from the affidavit of Department caseworker Michael Ejeh, which was admitted into evidence at trial.

         Alex was born prematurely at 35 weeks' gestation. Both he and Mother tested positive for amphetamines at his birth. When Alex was 10 days old, the Department received a referral of neglectful supervision of him by Mother. The reporter alleged Mother had been diagnosed with, among other things, bipolar disorder. Mother was also said to suffer from suicidal ideation.

         Ejeh visited Alex in the hospital the next day. No family member was with Alex at that time. Ejeh spoke with Mother in the hospital and noticed she had a black eye-an injury she claimed resulted from playing baseball with her nephews but Ejeh later learned may have been the product of an assault by Father. Mother claimed she was prescribed various medications, including an antipsychotic and a stimulant, but could not provide proof of those prescriptions when asked.

         Father was not at the hospital when Ejeh visited. Ejeh first spoke with Father two days later. Father said he was from California but had lived in Texas for two years. He said he had two children in California, ages nine and two, both of whom he said lived with their mother. Father denied any history of criminal activity, mental illness, domestic violence, drug use, or being abused as a child. He also alleged he had no history with the Department.

         That day, Mother and Father agreed to a Parental Child Safety Plan (PCSP) with the Department. Under the PCSP, Alex and both parents would move in with Alex's paternal grandmother when he was discharged, and both parents would submit to a drug test. Neither Mother nor Father appeared for the drug test. For various reasons, including reported drug use by the grandmother, the PCSP became unsustainable.

         Alex suffered a serious health scare a few days later. His blood had been drawn at a doctor's appointment. After he left, tests run on the blood revealed he suffered from low hemoglobin levels and direly needed a blood transfusion. Clinic staff attempted to contact Mother and Father several times that day but could not reach them. Ejeh eventually tracked the parents down the following day, by which time Alex was said to be at risk of death if he did not receive a blood transfusion immediately. Mother took Alex to the hospital; he was admitted for four days and successfully treated.

         Shortly after Mother arrived at the hospital with Alex, Department supervisor Debra Reyna talked with her about implementing another PCSP. Mother rejected the idea, insisting Alex stay with her. In support of her contention she could take care of Alex, Mother offered explanations for her and Father's failures to submit to drug testing as they had agreed and her failure to submit evidence of prescriptions for the psychotropic medications she said she was taking. Reyna offered to conduct a family team meeting with the Department and the parents. Mother agreed and "very much" wanted to have such a meeting to "explain everything going on."

         Despite Mother's professed enthusiasm about a family team meeting, neither Mother or Father contacted the Department to schedule the meeting. Neither parent proposed another person for a PCSC. Neither parent visited Alex during his hospital stay. Neither parent was seen after the day Mother took Alex to the hospital.

         Alex would need close medical supervision upon discharge, according to his doctor. Because the Department could not locate Mother or Father, the Department formally removed Alex and placed him in foster care. The Department then filed its petition for protection of a child, conservatorship, and termination, attaching Ejeh's affidavit.

         B. Pretrial proceedings

         Following a full adversary hearing, the trial court found Alex was in such danger due to his parents' acts or failures to act that he needed to be removed from their care immediately for his protection. The court appointed the Department to be Alex's temporary managing conservator and ordered the parents to comply with any family service plan by the Department. The service plan would identify the goals they needed to achieve and tasks and services they needed to complete before Alex could be placed in their care.

         Father's service plan required him to, among other things: complete a psychological evaluation and follow the evaluator's recommendations; support Alex, financially and otherwise; complete a substance abuse assessment; complete individual counseling to develop his parenting skills; maintain stable employment and provide the caseworker with appropriate documentation; maintain contact with the Department; and attend all visits with Alex, court dates, and meetings.

         C. Hearing

         Father did not appear at trial; he was in jail in California at the time. He was represented by counsel.

         1. Evidence about Father

         a. Drug use

         Drug tests conducted immediately after the emergency hearing in this case, at the beginning of October 2017, revealed Father was positive for alcohol, marijuana, amphetamines, and methamphetamines. His levels for each substance were multiple times higher than the minimum level that will yield a confirmed positive result. For example, the minimum level for a confirmed positive result for methamphetamine is 500 nanograms per milliliter [ng/mL] by urinalysis and 300 picograms per microgram [pg/mg] by hair follicle test. Father's levels were 52, 200 ng/mL and greater than 50, 000 ng/mg. The two components considered in alcohol testing, ethyl glucuronide and ethyl sulfate, both have a confirmed positive level of 250 ng/mL. Father's levels were 40, 100 ng/mL and 6, 860 ng/mL, respectively.

         Two weeks later, the trial court ordered Father to remain in the courtroom following the full adversary hearing for drug testing. Father left the courtroom without submitting to the test. His leaving is considered a positive drug test result under Department policy. Three more drug tests were scheduled through the end of February 2018, but Father failed to appear for any of them. Like walking out before being tested, failing to appear for a drug test is deemed a positive result.

         Father was extradited to California on a theft charge sometime after the scheduled February test. No further drug tests ...

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