In re Interest of J.F.-G.

• Decision Date: 21 May 2021
• Docket Number: No. 20-0378,20-0378
• Citation: 627 S.W.3d 304
• Court: Texas Supreme Court
• Parties: In the INTEREST OF J.F.-G., a Child

627 S.W.3d 304

In the INTEREST OF J.F.-G., a Child

No. 20-0378

Supreme Court of Texas.

Argued February 24, 2021

OPINION DELIVERED: May 21, 2021

Rehearing Denied September 3, 2021

Robert Earl Henneke, Kerrville, Andrew Brown, Austin, for Amicus Curiae.

Jonathan Sibley, Waco, for Other interested party Goonan, Mary J.

Bill Davis, Austin, Judd E. Stone II, Barry N. Johnson, Plano, Atty. Gen. W. Kenneth Paxton Jr., Austin, Sterling A. Harmon, Seminole, Brent Webster, Houston, Gabriel C. Price, for Respondent.

E. Alan Bennett, Waco, Maria Peña, for Petitioner.

Spring R. Thummel, for Other interested party F.-G., J.

Justice Bland delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Boyd, and Justice Huddle joined.

When Julie¹ was born, her father was a fugitive, having failed to report to prison to serve a four-year sentence for selling drugs. He previously had been convicted of other drug offenses. He reported to prison while Julie was an infant to serve his sentence. After eighteen months, he was released on parole. He then "almost immediately" committed robbery and was incarcerated for another seven-and-a-half years. Julie's father made almost no contact with Julie during his incarceration. He admittedly was unaware of concerning behavior by Julie's mother and the mother's boyfriend that put Julie at risk and eventually resulted in Julie's removal from the home.

Julie's father emerged from prison when Julie was a pre-teen, happily situated with her foster family and her half-sisters. And although Julie's father took strides to reintegrate into the community and Julie's life, the trial court shortly thereafter terminated his parental rights. The court found that Julie's father had "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."² It further found that termination of her father's parental rights was in Julie's best interest.³

The court of appeals affirmed, holding that sufficient evidence supports the trial court's decision.⁴ Julie's father petitioned this Court for review, contending that his incarceration, standing alone, is not legally sufficient evidence of endangering conduct. Because the evidence supports the trial court's finding that Julie's father engaged in conduct that endangered her physical or emotional well-being, we affirm.

I

A

Julie's father has spent much of his adult life in prison as a result of his escalating criminal activity. At seventeen, he was convicted of possession of marijuana, a minor drug offense. In June 2009, he was convicted of possession of a controlled substance—either hydrocodone or cocaine—and placed on probation for five years. Four months later, he was convicted of selling marijuana and sentenced to four years in prison. Rather than reporting to prison as required, Julie's father absconded, and he incurred a fugitive charge. After Julie's birth in March 2010, he turned himself in and served eighteen months. Upon his release from prison, her father "almost immediately" committed robbery and was jailed pending trial. He was convicted and sentenced to another eight years in prison.⁵ Julie was just shy of two years old when her father returned to prison.

During her father's prolonged absences, Julie grew up with her mother, her mother's boyfriend (whom Julie calls "dad"), and their two children, Julie's younger half-sisters. Over the years, the Department of Family and Protective Services investigated multiple reports of neglect. The Department ruled out some of these reports, but there was "reason to believe" several incidents of neglectful supervision. During this time, Julie's mother's boyfriend was on parole for drug distribution. Julie's father was unaware of the Department's concerns and investigations; during his incarceration, he communicated with Julie's mother only about three or four times a year.

Late one night in May 2017, Julie's "dad" (Julie's mother's boyfriend) drove Julie and his older son to buy food. Intoxicated and on drugs, he crashed his car, killing his son. Julie sustained severe facial injuries caused by sliding on gravel. A trial court sentenced Julie's "dad" to twenty years in prison on one count of intoxication manslaughter, to be served concurrently with ten-year sentences for two counts of intoxication assault.

During the Department's investigation following Julie's injuries, a hair follicle test confirmed that Julie's mother had been using cocaine. The Department quickly filed this suit to remove Julie and her half-sisters from the home, and the trial court granted temporary orders placing the children in foster care. The Department notified Julie's father (in prison) that Julie had been removed from her mother's care. Julie's father first learned of the circumstances surrounding the car accident when he was served with this suit.

About a year later, in May 2018, with the Department's agreement, the trial court permitted the Department to return Julie and her half-sisters to their mother on a monitored basis. The Department remained the children's temporary managing conservator. As part of the monitored return, the trial court ordered that Julie's mother's boyfriend, who was out on bond, be limited to twice-monthly supervised visitation in a public place. The trial court also ordered that he "not transport any of the children." When an investigator witnessed the boyfriend put the children in a car and get into the driver's seat, the trial court returned the children to their foster family, where they have remained since October 2018.

Meanwhile, still incarcerated, Julie's father appeared and answered the Department's suit in November 2017. Permanency reports to the trial court through November 2018 indicate that he had not engaged in services through the Department but had been in contact by letter. In February 2019, Julie's father moved to continue the final hearing, stating that he had "attended some classes while in prison" and anticipated that he would soon be released on parole. He was released on parole at the end of March 2019. The trial court granted the motion for continuance and set a new dismissal date.

Upon his release, Julie's father found employment. His mother offered him her residence in Tyler as a place to live. He also reconnected with Julie's mother, and she moved in with him at his mother's house. Julie's father planned for Julie and her half-sisters to live with them. In the six months between his release from prison and the final hearing, Julie's father tested negative for drugs and attended twice-monthly visitation with the children.

At the time of the final hearing, Julie's foster family had cared for her for over two years and wished to adopt Julie and her half-sisters.

B

At the final hearing, held in September 2019, the trial court heard testimony from Julie's mother and father, a Department caseworker, and a Department investigator. In addition, the trial court "at the request of [Julie's father], conferred with [Julie] with her attorney ad litem present."⁶ The mother's boyfriend, who is the father of Julie's two half-sisters, was incarcerated by that time and did not testify. The trial court admitted a psychological evaluation of Julie's mother as an exhibit.⁷

The caseworker recounted the events that took place after Julie's injuries in the car accident. She explained that Julie's mother allowed her boyfriend around the children, and one of the children indicated that the boyfriend drove them home from school, which disrupted the attempt at a monitored return in the summer of 2018. Later, the mother had "a few positive drug tests" for cocaine, namely a hair follicle test in November 2018 and a nail test in January 2019. The mother's boyfriend also had tested positive for cocaine.

The caseworker reported that Julie was "doing great" in her foster placement.

On cross-examination, the caseworker acknowledged that Julie's mother and father had attended two or three therapy sessions, which had "been positive," including one immediately before the hearing. Between May 2019 and the final hearing in September 2019, Julie's father had visited with Julie twice a month at the Department's offices. The home that Julie's father lived in was suitable.

The investigator also described the events leading to the disruption of the trial court's monitored return in August and September of 2018. After several failed attempts to contact Julie's mother, the investigator went to speak with Julie and her half-sister at school. They reported that their mother's boyfriend had dinner at their house on a Sunday and took them to school the next morning. The investigator also witnessed the boyfriend placing the children into a car and getting into the driver's seat with the mother in the passenger seat. The caseworker stated that, although Julie's mother initially denied it, she eventually "broke down and confessed to [the Department] that he had been around the children."

Julie's mother testified as well. She explained that she began a relationship with her boyfriend right after Julie's father was arrested for robbery and went to prison. She raised Julie from birth to age seven until the Department placed Julie and her half-sisters in foster care after the accident. Contrary to the caseworker's and investigator's accounts, she denied allowing her boyfriend around the children during the monitored return. She contested the results of her failed drug tests, stating that they were "not accurate." She admitted, however, that she knew that her boyfriend had "a cocaine issue" as early as 2016, before the car crash in 2017. She understood that he ultimately tested positive for cocaine at the time of the car accident and tested positive for cocaine after the Department removed the children from her care.

Julie's mother immediately reunited with Julie's father upon his release from prison in March 2019. She testified that he sent the...