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In re Z.H.

Court of Appeals of Texas, Fourteenth District

June 27, 2019


          On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2018-00119J

          Panel consists of Chief Justice Frost and Justices Spain and Poissant.


          Kem Thompson Frost Chief Justice.

         Appellant A.H. ("Father") appeals the trial court's final order terminating his parental rights and appointing the Department of Family and Protective Services ("Department") as sole managing conservator of his child Z.H. ("Zach").[1] On appeal, Father challenges the legal and factual sufficiency of the evidence to support (1) the predicate grounds under which the trial court terminated his parental rights, and (2) the trial court's finding that termination was in Zach's best interest. We affirm.

         I. Factual and Procedural Background

         A. The Department's Investigation

         In January 2018, Mother gave birth to Zach while she was incarcerated for aggravated assault and injury to a child causing serious bodily injury. That charge arose out of another Department investigation concerning Mother's care of Zach's older brother. At the time of Zach's birth, Father denied paternity of Zach and requested a DNA test. The Department already was investigating Father in the case concerning Zach's older brother.

         During an interview with the Department's investigator after Zach's birth, Mother explained that before she was incarcerated she was living in a shelter with her two children. Mother told the investigator that she was not in a relationship at that time. The Department removed the two children when Mother was charged with physical abuse of one of them.

         The DNA test results indicated that Father was Zach's natural parent. Father has a criminal history spanning several years (2006 - 2013) consisting of the following:

• a May 2006 conviction of criminal trespass;
• a June 2007 conviction of possession of marijuana;
• a May 2012 deferred adjudication on a charge of burglary of a vehicle; and
• an April 2013 deferred adjudication on a felony charge of possession of a controlled substance.

         The Department gave Father a family service plan, which included the requirements that Father participate in random drug testing, complete eight weeks of parenting classes, complete a substance-abuse assessment and follow all recommendations from that assessment, complete a psycho-social assessment and follow all recommendations from that assessment, and maintain stable employment and housing. Father completed some requirements of the plan but did not maintain his sobriety and was discharged from a drug rehabilitation program after two months.

         During the investigation regarding Zach's older brother, Father tested positive for phencyclidine (PCP) and marijuana while Mother was pregnant with Zach and thereafter Father then refused drug tests.

         B. Trial

         Trial commenced eleven months after Zach's birth. Mother executed an affidavit of relinquishment before trial.

         The Department's Caseworker

         Felicia Huitt, the Department caseworker assigned in this matter, testified that Zach currently was living in an adoptive foster home with his two siblings. Huitt explained that the Department opened this case when Mother, while incarcerated for abusing one of her other children, gave birth to Zach. Huitt confirmed that Father had tested positive for PCP in August 2017, during Mother's pregnancy with Zach. Father also tested positive for PCP on two drug tests in February 2018. According to Huitt, Father refused drug tests in May and August of 2018. Father submitted another positive drug test for PCP in June 2018. Huitt testified that during the first permanency hearing in this case, Father admitted to using PCP at least twenty times since Zach's birth.

         According to Huitt, Father completed his individual and group therapy but was discharged as unsuccessful when he could not provide proof of sobriety. Father completed his substance-abuse assessment and psychosocial evaluation. Father provided proof of income during the investigation, maintained continued contact with the Department's case worker from February through August, but ceased communication thereafter. Over the course of the investigation Father had "a few" visits with Zach, but ultimately the Department suspended the visits because Father failed to submit a negative drug test.

         Huitt testified that Zach is in a potentially permanent adoptive placement with his siblings. Zach's current foster parents are meeting all of his needs. Zach is well-bonded with his siblings in this home. Huitt opined that the Department does not believe Father could provide similarly stable circumstances for Zach.

         Court ...

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