In re U.P.

• Decision Date: 17 April 2003
• Docket Number: No. 14-02-00126-CV.,14-02-00126-CV.
• Citation: 105 S.W.3d 222
• Parties: In the Interest of U.P., a Child.
• Court: Texas Court of Appeals

105 S.W.3d 222

In the Interest of U.P., a Child.

No. 14-02-00126-CV.

Court of Appeals of Texas, Houston (14th Dist.).

April 17, 2003.

COPYRIGHT MATERIAL OMITTED

Danny Lynn Hoke, Stephen A. Doggett, Richmond, for appellants.

David Christopher Newell, Richmond, Ellen Yarrell, Houston, Marlene M. Zinsmeister, Teana V. Watson, Sugar Land, Walter G. Armatys, Richmond, for appellees.

Panel consists of Justices YATES, ANDERSON and FROST.

OPINION ON MOTION FOR REHEARING

JOHN S. ANDERSON, Justice.

We withdraw our opinion issued January 23, 2003, substitute the following opinion in its place, and overrule appellant's motion for rehearing.

Following a bench trial, appellant's parental rights over daughter U.P. were terminated. On appeal, appellant argues improper termination. Because the record supports the findings that termination is in the best interest of the child and appellant committed acts listed in the Family Code as grounds for termination, we affirm.

PROCEDURAL BACKGROUND

On September 1, 2000, the Texas Department of Protective and Regulatory Services ("TDPRS") filed suit to terminate appellant's parental rights. The one-year dismissal date for this suit was September 3, 2001. On June 21, 2001, on a motion by the TDPRS, the trial court extended the dismissal date to February 25, 2002, pursuant to § 263.401 of the Texas Family Code.

On January 2, 2002, U.P.'s foster parents filed a petition to intervene seeking to adopt U.P. After a bench trial, the trial court entered a written order terminating appellant's parental rights. Appellant's motion for a new trial was overruled. Appellant made a timely request for findings of fact and conclusions of law, which the trial court made, and gave timely notice of appeal.¹

FACTUAL BACKGROUND

TDPRS took U.P. into protective custody a week after she was born on August 30, 2000, addicted to cocaine and barbiturates. During her short life, the child has suffered from numerous medical problems, including intrauterine growth retardation, an umbilical hernia, sleep apnea or Sudden Infant Death Syndrome (SIDS), reflux, reactive airway disease, a crossed eye, and severe developmental delays. She was premature at birth and had below average birth weight. She has undergone surgery without the benefit of anesthetics because of her cocaine addiction. She currently resides with foster parents with expertise in caring for children with special needs.

U.P. was homebound for the first twelve months of her life. She was on a SIDS monitor for seven months, continues to require frequent medications, and has severe digestive problems. At nine months of age, she underwent surgery for an umbilical hernia. The surgery was unsuccessful; the child will undergo a second operation as soon as medically practicable. At the time of trial, U.P. was 16 months old and required (1) feedings every two hours to reduce regurgitation due to reflux, (2) medication to keep her lungs clear, and (3) constant comforting to enable her to sleep. She awakens almost every hour throughout a typical night and must be held in order to fall back asleep. U.P.'s pediatrician testified that U.P. is likely to suffer from developmental delays, emotional instability, and attention deficit disorder (ADD) for life.

Prior to U.P.'s birth, appellant and U.P.'s mother used illegal drugs together. Although appellant claims he did not know U.P.'s mother could get pregnant and denies ever having given the mother crack cocaine after learning of her pregnancy, evidence suggests he provided the mother with drugs even after knowing of her pregnancy.

It is uncontroverted that appellant supplied her with illegal drugs before being aware of her pregnancy and that he knew she used illegal drugs while pregnant. Although appellant states he attempted to stop U.P.'s mother from using cocaine during her pregnancy, he never called the police, never sought to have the mother admitted into drug rehabilitation, and never reported the drug abuse to Child Protective Services (CPS).

Appellant admits to his own personal drug abuse before and after U.P.'s mother became pregnant. Appellant agrees with expert testimony that U.P.'s physical disabilities and difficulties are directly related to her having been subjected to drug abuse in utero. Appellant agrees that the actions of U.P.'s mother, combined with his own inaction, placed the child in grave danger.

On September 15, 2000, two weeks after U. P.'s birth, appellant was arrested for, and ultimately convicted of, the manufacture and delivery of cocaine. He served a one-year prison sentence and was released on September 14, 2001. This was appellant's seventh conviction since 1970. His 30-year criminal history includes felony theft, armed robbery and credit card abuse. His sentences have ranged from one to eighteen years in length. At the time of trial, appellant was on parole for the manufacture and delivery of a controlled substance. He has three parole violations.

Although appellant called family members the day of U.P.'s birth to announce he had a daughter, paternity of U.P. was not firmly established until February 1, 2001, when appellant was in prison. In addition to U.P., appellant is the father of three sons, two of whom have been incarcerated following conviction for narcotics-related crimes. Although appellant admits he "wasn't around" much while his sons were growing up, he was around enough in 1994 to be charged with "physical neglect" and "neglectful supervision" of two of the sons. Though never proved, the charges included offering his sons crack cocaine and failing to provide adequate sleeping arrangements and food.

Appellant has repeatedly been notified via court order and receipt of TDPRS petitions that he might lose parental rights if he failed to comply with court-ordered counseling and evaluations. As early as September, 2000, he was ordered to undergo paternity testing, psychological testing, counseling, drug abuse evaluation/assessment, and parenting classes. He was also told at that time that he would have to pay child support if it was determined that he was U.P.'s father.

Appellant's compliance with the trial court's orders has been minimal. He submitted to paternity testing in the months immediately following U.P.'s birth, attended voluntary drug abuse classes while in prison, and underwent psychological evaluation, drug and alcohol assessment, and parenting classes after his release, but it was several weeks after his prison release before appellant began complying with the court order. He did not appear for psychological evaluation or counseling sessions until after the court-ordered dates, and, at the time of trial, had not completed all required services.

Appellant's contact with U.P. has been minimal. Appellant does not correctly state her birthday. He has not consulted with a doctor about her medical condition. He has not demonstrated concern or affection for her by sending her cards or letters or by making attempts to see her at holidays, nor has he made inquiries about visiting her when she was ill. Despite the child's poor health, none of appellant's requests for visitation has ever been denied by CPS or the foster parents — and despite a court order allowing him weekly visitation, appellant has seen his daughter on only four occasions: once in the hospital the day following her birth and three times during the four-month period following his release from prison in September, 2001. One visit was in October, 2001, and two were in November, 2001. He made no visits or attempts to see his daughter in December, 2001, or January, 2002.

Appellant acknowledges that he cannot personally care for his child, provide the 24-hour-per-day supervision required for her care, or take time off to visit doctors or obtain U.P.'s necessary medical treatment. He has a new common-law wife who neither wants the child nor has an interest in caring for her. He admits to a criminal history that raises credibility issues as to his fitness as a parent. He has no health insurance and paid no child support while incarcerated.

The trial court ordered appellant to send $10.00 a month in child support to U.P. while in prison. Though he earned $50.00 a month in commissary money while incarcerated, he did not comply with the order. He states the reason for his failure to pay child support was a misunderstanding of the order; he thought he was not required to make payments until his release and subsequent employment. Nonetheless, appellant acknowledges he could have made arrangements to make the payments had he understood the order and that being in jail was no excuse for failure to provide financially for U.P.

At the time of trial, appellant was working full-time and earning approximately $1,000 per month. After his release from prison, appellant paid $30.00 in child support on November 29, 2001, as a three-month advance payment. He has since made no other child support payments and has made no attempt to pay past child support. His last known illegal drug use was September 15, 2000, the day of his arrest. Appellant states he wants to be in the child's life, wants to see her, and has genuine concern for her.

Testimony indicates that it has always been appellant's intention that U.P. be placed with appellant's mother or sister. Neither appellant's mother nor his sister has filed a petition in intervention or a petition to adopt U.P., however, and neither is a party to this suit. Neither one of these women has expertise in caring for a child with severe medical problems and, after home studies performed by CPS, neither one is deemed a suitable CPS placement option for U.P. Both appellant's mother and sister indicate that, if given custody of U.P., they intend to turn the child over to appellant as soon as he is able to care for her.

Appellant's mother is 74 years old and in poor health. She has seen U.P. once. Appellant's sister is 43 years old and is a single mother of four. She...