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In re A.G.

Court of Appeals of Texas, Fourteenth District

June 6, 2019

IN THE INTEREST OF A.G., A CHILD

          On Appeal from the 310th District Court Harris County, Texas Trial Court Cause No. 2018-00408J

          Panel consists of Justices Christopher, Bourliot, and Zimmerer.

          MEMORANDUM OPINION

          FRANCES BOURLIOT JUSTICE.

         T.D.G. (Father) appeals from a final decree terminating his parental rights and appointing the Department of Family and Protective Services (the Department) as sole managing conservator of his son, A.G. (Alex).[1] On appeal, Father challenges the legal and factual sufficiency of the evidence to support (1) the predicate grounds under which his parental rights were terminated and (2) the finding that termination was in Alex's best interest. We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         I. The Department of Family and Protective Services Investigation

         A.G. (Mother) gave birth to Alex in late October 2017. Two months after his birth, the Department received notification that Mother was caring for Alex while under the influence of drugs. At that time, the Department had already removed Mother's three older children from her custody.[2] It took the Department three weeks to make contact with Mother after receiving the initial notification because Mother was not answering her telephone and the Department did not have a reliable address for the family. Once the Department was finally able to reach the family, the Department discovered they were staying at the Baytown Inn and did not have a permanent residence. Father told the Department investigator that they had been moving back and forth in between the hotel and his "homeboy's" house. Neither parent had stable employment. The couple admitted they had not taken Alex for any doctor's visits since they moved from Port Arthur where Alex was born.

         Mother informed investigators that she and Father had been in a committed relationship for three years. Father said that he did not have any mental health or medical issues. However, Father said he was taking norcos for back pain, but was unable to provide the prescription. Father informed the investigator that he had other children who were living with their mother outside of Texas.

         The Department concluded it was necessary to remove Alex from his parents' care due to the unstable living conditions. The Department filed a petition requesting termination of Mother's and Father's parental rights. The trial court appointed the Department as Alex's temporary managing conservator and placed Alex in a foster home. The trial court ordered Father to complete a family service plan, which included Father undergoing psychological evaluations, submitting to random drug test, refraining from participating in illegal activities, and acquiring and maintaining housing that was stable for more than six months.

         II. Trial Proceedings

         Bruce Jeffries of the National Screening Center testified as an expert in drug testing results. Jeffries reviewed Father's drug test results dating back to February 2018. Father's first drug test returned positive for cocaine, methamphetamine, and marijuana on the outside of his hair. Jeffries explained that the levels of marijuana on the outside of Father's hair were "extremely high," indicating that he was living in an environment "that is small in nature where the air is full of THC." Jeffries confirmed that Father's outside hair exposure dated back to shortly before Alex was born and the following months. Jeffries further testified that Father's April 2018 drug test results returned positive for cocaine in his urine. Jeffries confirmed that Father must have still been using cocaine after Alex was removed from his care due to the timing of the testing. Hair from Father's underarm was also tested in April 2018, and those test results came back positive for methamphetamine, cocaine, and marijuana on the inside and outside of the hair. In July 2018, Father's urine tests returned negative, but his underarm hair test came back positive for cocaine and marijuana on the inside and outside of the hair. Jeffries explained that underarm hair can show usage as far as four to six months back. Jeffries further testified, that the amount of cocaine in Father's hair test results diminished significantly between the April and July tests. However, Jeffries explained that Father's initial amounts of cocaine were "off the charts." According to Jeffries, Father's cocaine amounts indicated at least daily use. Jeffries explained that cocaine usage at that level can damage the right side of a person's heart and cause a heart attack even years after that person has stopped using.

         Next, the Department's caseworker, Lakeela Caraway, testified that she has been working with Mother since the Department's investigation into Mother's three other children began. Caraway testified that she reviewed the service plan with Father and confirmed that he understood it. Father's service plan required him to complete drug counseling services. Caraway explained that the only portion of that requirement that Father completed was a drug assessment and drug test, which returned positive for cocaine. Caraway testified that the court did not allow for visitation between Father and Alex because of the positive drug test results. According to Caraway, Father only contacted her two times between when Alex was removed and trial-approximately eight months. Nor did Father provide any gifts or financial support for Alex while he was in the Department's custody. Upon questioning, Caraway confirmed that Father's attorney provided her with a copy of a paycheck stub from Father's employment at Pizza Hut.

         Caraway explained that Alex was doing very well in an adoptive foster home, despite not hitting his developmental milestone of crawling by the age of one. According to Caraway, Alex's foster parents ensure he makes all his doctor's appointments. Caraway further explained that Alex is very spoiled by his foster parents because he is the only child in the home. The foster parents also take Alex to visit his biological siblings and intend to adopt Alex. Caraway testified that she believes it is in Alex's best interest to terminate Father's parental rights based on his "excessive" drug use, his failure to remove Alex from a home where drug use was present, and his failure to complete his family service plan.

         Next, Mother testified on her own behalf. Mother said she did not use drugs while she was pregnant, nor did she use drugs after she brought Alex home from the hospital. According to Mother, the last time she used marijuana was two months prior to trial. She testified that the last time she used cocaine was "probably after [her other] child was taken from [her]."

         Finally, Father testified. Father explained that he was unable to complete much of his service plan because he had vehicle problems that he could not afford to have repaired. Father testified that he has been working to attain sobriety and believed he would test negative for illegal substances if he was tested that day.

         After Father's testimony, the court announced it was terminating both Mother's and Father's parental rights to Alex. As to Father, the trial court terminated on the predicate grounds found in Family Code sections 161.001(b)(1)(D), (E), (N), and (O). The trial court further found that termination of Father's parental rights was in Alex's best interest. The trial court signed a final ...


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