in the Interest of U. G. G. a Child

Court of Appeals of Texas

in the Interest of U. G. G. a Child

573 S.W.3d 391

CourtCourt of Appeals of Texas

DecidedFebruary 26, 2019

Docket08-18-00163-CV

StatusPublished

Cited by7 cases

This text of 573 S.W.3d 391 (in the Interest of U. G. G. a Child) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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in the Interest of U. G. G. a Child, 573 S.W.3d 391 (Tex. Ct. App. 2019).

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Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ No. 08-18-00163-CV § IN THE INTEREST OF Appeal from § U.G.G., A CHILD. 109th District Court § of Winkler County, Texas § (TC # DC17-17073) §

OPINION

This appeal is from a judgment terminating the parental rights of Appellant, S.P.G., to his

son, U.G.G. We affirm.

FACTUAL SUMMARY

On July 20, 2016, the Texas Department of Family and Protective Services became

involved with eight-month-old U.G.G. based on a report of negligent supervision by D.M., the

child’s seventeen-year-old mother.1 The Department caseworker could not locate Mother, so she

instructed S.P.G. (Father) to obtain legal custody of U.G.G. and to not allow Mother to have

access to the child if Father believed it was unsafe to do so. Father did not follow through with

obtaining custody of U.G.G. and later returned the child to Mother. At trial, Father explained

that he returned U.G.G. to Mother because they had agreed each parent would have custody on

1 To protect the identity of the children, the opinion will refer to various individuals by either initials or an alias. See TEX.R.APP.P. 9.8. U.G.G. and A.N.A. will be referred to by their initials, S.P.G. will be referred to as “Father”, and the children’s mother, D.M., will be referred to as “Mother”. Additionally, the foster parents, R.H. and A.H., will be referred to by their initials. alternating months.

Less than three months later, the Department received a Priority 1 intake regarding

physical injuries to ten-month-old U.G.G. which occurred while in his Mother’s care. Mother

and U.G.G.’s maternal grandmother took him to the emergency room with a black eye, ruptured

blood vessel in his eye, busted lip, and scratches on his neck and back. Mother stated that her

boyfriend, J.A., had physically abused the child while she was in the shower. The injuries were

two days old when Mother took U.G.G. to the emergency room. At trial, Mother testified that

the Department became involved because of a “misunderstanding” about U.G.G. being abused.

Caseworker Kelli Cantrell met with Mother on November 14, 2016. By that time, Mother had

reunited with J.A., and Mother reported to Cantrell that she was five months pregnant. The

Department provided Family Based Safety Services (FBSS) to Mother and it implemented a

safety plan requiring U.G.G. to be placed with Father and restricted Mother to supervised

visitation. Father again agreed to seek legal custody of U.G.G. but he failed to do so. In late

February 2017, Cantrell attempted to make a home visit with U.G.G., but Father had returned

U.G.G. to Mother. Father asserted that he had undergone an appendectomy and did not have

anyone else he could ask to care for the child. At Cantrell’s insistence, Father picked up U.G.G.,

but he returned the child to Mother the following day in violation of the safety plan. Mother

gave birth to her second child, A.N.A., in March 2017 and tested positive for methamphetamine.

Mother admitted using methamphetamine while she had U.G.G. in her care.

On March 23, 2017, the Department filed a petition seeking to terminate the parental

rights of both Mother and Father to U.G.G.2 Following a hearing in May 2017, the trial court

appointed the Department as the temporary managing conservator of both U.G.G. and A.N.A.

and placed them with the foster parents, A.H. and R.H.

2 Father is not the biological father of A.N.A. The trial court terminated Mother’s parental rights to both U.G.G. and A.N.A. Mother has not appealed. -2- Joy Welch Miller, a Department caseworker, discussed the service plan requirements

with Father. The service plan required Father to complete individual counseling with Lee West

and to complete parenting classes. Father attended his first counseling session, but missed the

second session because it snowed. Father testified that the second session was rescheduled but

he again missed it. Father explained that he “lost track” of the counseling sessions and did not

attend them because he was busy performing other parts of the service plan. Father attended

eight out of the twelve or fourteen parenting classes he was required to complete. He testified

that he could not complete his service plan requirements because of his work hours.

Father completed a drug and alcohol assessment on June 21, 2017. He testified positive

for methamphetamine on hair follicle tests done in September and November 2017, and on

December 16, 2017.3 Father also tested positive for methamphetamine on a hair follicle test

done on December 16, 2017. After the first positive test for methamphetamine, Father was asked

to undergo a second assessment in January 2018, but Father failed to do so. Joy Welch Miller, a

Department conservatorship caseworker, discussed the positive test results with Father. Father

told her that he suspected he would test positive because someone at work had been giving him

drugs. Miller emphasized that Father must remain drug free if he wanted U.G.G. returned to

him. On February 28, 2018, which was less than two weeks before trial, Father had another hair

follicle test, and he tested positive for methamphetamine and amphetamine. Father testified that

he did not start using drugs until after U.G.G. was removed from his care, and he last used

methamphetamine on December 24, 2017. Consistent with what he told Miller, Father claimed

that his boss gave him pills to boost his energy at work and he did not find out until later what

the pills were. Despite having multiple positive drug tests, Father did not stop taking the pills

until January 2018 when he left the job.

3 According to testimony at trial, hair follicle tests can remain positive for up to three months after drug use. -3- On March 8, 2018, an associate judge heard the case and determined that Father’s

parental rights should be terminated. Father exercised his right to a de novo hearing. At the de

novo hearing, the District Court considered the record from the trial conducted before the

associate judge as well as additional evidence introduced by Father and the attorney ad litem for

the child. See TEX.FAM.CODE ANN. § 201.015(c). The District Court found that the Department

had proven by clear and convincing evidence that Father had: (1) knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which endanger the

physical or emotional well-being of the child, pursuant to § 161.00l(b)(l)(D), Texas Family

Code; (2) engaged in conduct or knowingly placed the child with persons who engaged in

conduct which endangers the physical or emotional well-being of the child, pursuant to §

161.00l(b)(l)(E), Texas Family Code; and (3) failed to comply with the provisions of a court

order that specifically established the actions necessary for the father to obtain the return of the

child who has been in the permanent or temporary managing conservatorship of the Department

of Family and Protective Services for not less than nine months as a result of the child’s removal

from the parent under Chapter 262 for the abuse or neglect of the child, pursuant to §

161.001(b)(l)(O), Texas Family Code. The court also found by clear and convincing evidence

that termination of Father’s parental rights was in the child’s best interest, and it appointed the

Department as the permanent managing conservator of the child.

TERMINATION GROUNDS AND BEST INTEREST UNDER SECTION 161.001

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