in the Interest of J.H. and K.H., Children ( 2022 )

Opinion filed November 3, 2022
In The
Eleventh Court of Appeals
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No. 11-22-00122-CV
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IN THE INTEREST OF J.H. AND K.H., CHILDREN
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 10045-CX
MEMORANDUM OPINION
This is an appeal from an order entered by the trial court terminating the
parental rights of the mother and the father to their children, J.H and K.H. See TEX.
FAM. CODE ANN. § 161.001 (West 2022). The mother (Appellant) appeals in four
issues: (1) asserting that the trial court erred in admitting evidence of drug test
results, (2) claiming that without the drug test results the evidence was insufficient
to show she endangered the children, (3) challenging the sufficiency of the evidence
to support the termination of her parental rights, and (4) alleging that termination
was not in the best interest of the children. We affirm the trial court’s order.
I. Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. FAM. §§ 161.001(b), 161.206(a), (a-1). To terminate one’s parental rights
under Section 161.001, it must be shown by clear and convincing evidence that the
parent has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. FAM. § 161.001(b)(1). In this case,
the trial court found that Appellant had committed three of the acts listed in
Section 161.001(b)(1)—those found in subsections (D), (E), and (O). Specifically,
the trial court found that Appellant had knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endangered the children’s
physical or emotional well-being. See id. § 161.001(b)(1)(D). The trial court also
found that Appellant had engaged in conduct or knowingly placed the children with
persons who engaged in conduct that endangered the children’s physical or
emotional well-being. See id. § 161.001(b)(1)(E). Finally, the trial court found that
Appellant failed to comply with the provisions of a court order that specifically
established the actions that Appellant needed to take to obtain the return of her
children. See id. § 161.001(b)(1)(O). Ultimately, the trial court found that
termination of Appellant’s parental rights would be in the best interest of the
children. See id. § 161.001(b)(2).
To determine if the evidence is legally sufficient in a parental termination
case, we review all of the evidence in the light most favorable to the finding and
determine whether a rational trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
To determine if the evidence is factually sufficient, we give due deference to the
finding and determine whether, on the entire record, a factfinder could reasonably
form a firm belief or conviction about the truth of the allegations against the parent.
In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We note that the trial court is the sole
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arbiter of the credibility and demeanor of witnesses. In re A.B., 437 S.W.3d 498,
503 (Tex. 2014) (citing In re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (1) the desires of the child, (2) the emotional and physical needs of the
child now and in the future, (3) the emotional and physical danger to the child now
and in the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
II. Procedural and Factual Background
At issue in this appeal are the parental rights of Appellant to her children, J.H.
and K.H.—who at the time of trial were ten years old and seven years old,
respectively. The Department of Family and Protective Services became involved
with J.H. in June 2020 due to his behavioral issues. Appellant was unable to control
J.H., and she asked for help from the Department because she was struggling to get
the resources she needed to support J.H. during the pandemic. J.H. was ultimately
removed from Appellant’s home and placed in a residential treatment center (RTC).
The trial court ordered Appellant to comply with the requirements of her family
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service plan. She was generally compliant except for her use of marihuana as
demonstrated by positive drug test results.
Following an allegation that drugs were being used in Appellant’s home, the
Department conducted drug testing on K.H. After K.H. tested positive for
marihuana two separate times (several months apart), the Department removed K.H.
from Appellant’s home and placed her in foster care. Appellant was again court-
ordered to comply with the provisions of a family service plan, but the Department
case manager indicated that this time Appellant was not as successful. The case
manager testified that several of Appellant’s drug tests were positive, that Appellant
failed to provide a list of medical prescriptions, and that she did not attend all
scheduled appointments, did not complete a substance assessment, did not complete
weekly Narcotics Anonymous (NA) classes, did not comply with refraining from
bleaching or coloring her hair, did not maintain employment, and did not notify the
case manager of changes in a timely manner. Appellant admitted to changing
employers but denied that she failed to notify the case manager about these changes.
Appellant also explained that because she has no prescription for her back pain, she
self-medicates using CBD—either by smoking it or eating “gummies.”
The Department approved a monitored return of the children to Appellant in
2021. J.H. returned in June 2021, and K.H. returned in August 2021. The case
manager testified that Appellant was compliant with her services in both June and
August 2021. However, the monitored return ended in October 2021 when J.H.,
K.H., and Appellant all tested positive for marihuana. After the monitored return
ended, J.H. returned to RTC and K.H. returned to foster care.
The case manager for the Department testified that during the monitored
return, J.H. was again having behavioral issues. He had quit taking the medication
prescribed to him. Appellant claimed that this was because J.H. refused the
medication, not because she neglected to give it to him. However, after the
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monitored return, J.H.’s behaviors improved upon his return to RTC, and he began
taking his medication consistently.
Appellant maintained at trial that her children tested positive due to “passive
exposure.” According to the case manager, Appellant continued to test positive for
marihuana and did not utilize many of the services offered to her. Appellant testified
that she last smoked marihuana about two or three months before trial. She also
admitted at trial that her nephew lived with her and that he smokes marihuana.
The case manager testified that both children were doing well in school, and
the court-appointed special advocate (CASA) for both children testified that they
were doing very well in their respective placements. Appellant continued to
participate in in-person visits with both children, only missing when she was sick or
traveling. Appellant testified that she and the children have fun during the visits and
that the children miss her when she is not with them. When J.H. was informed that
Appellant’s parental rights could be terminated, J.H. was extremely upset and hurt
by this. Appellant testified that K.H. likes her foster home but also wants to come
home.
The Department requested that the trial court terminate Appellant’s parental
rights. Both the CASA representative and the case manager for the Department
testified that the termination of Appellant’s parental rights would be in the best
interest of J.H. and K.H. At the time of trial, the Department’s plan for J.H. was for
him to remain in RTC and, once released, to be placed in foster care. The
Department’s plan for K.H. at the time of trial was for her to be adopted by her foster
parents.1
1
We note that evidence presented at a hearing on Appellant’s motion for new trial revealed that the
Department’s plan for the children changed after the termination hearing and that the subsequent plan was
for the children to be adopted by or placed permanently with Appellant’s sister.
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III. Analysis
A. Evidentiary Ruling
In Appellant’s first issue, she contends that the trial court erred when it
admitted into evidence the drug test results of J.H., K.H., and Appellant at trial. The
drug test results were admitted into evidence as exhibits under the business records
exception to the hearsay rule. See TEX. R. EVID. 803(6), 902(10). Appellant objected
to the admission of these exhibits, arguing that they contain information outside the
scope of the hearsay exception for business record affidavits. The trial court
overruled Appellant’s objections to the exhibits and admitted them into evidence.
Attached to each of the complained-of exhibits in this case was an affidavit
by the custodian of records of Texas Alcohol and Drug Testing Service. The
affidavits pertained to hair, nail, urine, and oral fluid testing. The affidavits indicate
that “strict chain of custody procedures” were utilized and that the testing was
performed by a certified scientist utilizing GC/MS (gas chromatography/mass
spectrometry) instruments and reviewed by a licensed medical review officer. The
affidavits generally track the language of Rule 803(6), which sets out the
requirements for the hearsay exception for records of regularly conducted business
activity, and Rule 902(10), which sets out the requirements for authentication
purposes of an affidavit that accompanies business records. See TEX. R. EVID.
803(6), 902(10). The affidavits attached to the complained-of exhibits in this case
provide information regarding the chain of custody, the testing procedures, and the
qualifications of the analysts. The pages of the exhibits that show the “Test Results”
were signed by the medical doctor that was the certified medical review officer for
the tests.
The exhibits constitute an exception to the hearsay rule, and nothing in the
record indicates that they lack trustworthiness. See TEX. R. EVID. 803(6). We hold
that the trial court did not abuse its discretion in admitting the exhibits over
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Appellant’s hearsay objections. See F.C. v. Tex. Dep’t of Fam. & Protective Servs.,
No. 03-19-00625-CV, 2020 WL 101998, at *5–6 (Tex. App.—Austin Jan. 9, 2020,
no pet.) (mem. op.); In re E.B., No. 11-19-00001-CV, 2019 WL 3955974, at *3 (Tex.
App.—Eastland Aug. 22, 2019, no pet.) (mem. op.); In re Z.N.M., No. 14-17-00650-
CV, 2018 WL 358480, at *6 (Tex. App.—Houston [14th Dist.] Jan. 11, 2018, no
pet.) (mem. op.); In re A.T., No. 2-04-355-CV, 2006 WL 563565, at *4 (Tex. App.—
Fort Worth Mar. 9, 2006, pet. denied) (mem. op.).
Moreover, even if Appellant is correct in her contention that the trial court
abused its discretion in admitting the exhibits, we have held—as did the courts of
appeals in A.D.H.–G and K.C.P.—that the error, if any, in the admission of the drug-
test results was harmless. See In re E.B., No. 11-19-00001-CV, 2019 WL 3955974,
at *4 (Tex. App.—Eastland Aug. 22, 2019, no pet.) (mem. op.); In re A.D.H.–G.,
No. 12-16-00001-CV, 2016 WL 3182610, at *6 (Tex. App.—Tyler June 8, 2016, no
pet.) (mem. op.); In re K.C.P., 142 S.W.3d 574, 580–81 (Tex. App.—Texarkana
2004, no pet.); see also TEX. R. APP. P. 44.1(a)(1) (judgment may not be reversed
unless the error probably caused the rendition of an improper judgment). In this
case, other evidence at trial indicated that Appellant—during a monitored return with
the children—was self-medicating for pain with CBD by eating gummies or
smoking and that she would routinely allow the children to play outside where
marihuana was commonly being used. Appellant also admitted at trial that she had
smoked marihuana as recently as “two or three months” before the trial. Evidence
that Appellant’s children tested positive for marihuana was admitted without
objection during the trial—by Appellant during her own testimony. Appellant
confirmed that her nephew had been watching her children while she was at work
and that he had also been “using.” We note that, to support a finding that Appellant
endangered J.H. and K.H., Appellant’s offending conduct did not have to be directed
at them, nor did they actually have to suffer an injury. See In re J.O.A., 283 S.W.3d
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336, 345 (Tex. 2009). Thus, we conclude that any error in the admission of the
exhibits containing J.H.’s, K.H.’s, and Appellant’s drug-test results was harmless.
We overrule Appellant’s first issue.
B. Endangering Conduct
In Appellant’s second issue, she challenges the findings made by the trial
court under Section 161.001(b)(1)(D) and (E). We must address a parent’s challenge
to a trial court’s findings under subsection (D) or (E) because of the potential
consequences of these findings to the parent’s rights to a different child. See In re
N.G., 577 S.W.3d 230, 234–35 (Tex. 2019) (addressing due process and due course
of law with respect to appellate review of grounds (D) and (E) and holding that an
appellate court must provide a detailed analysis if affirming the termination on either
of these grounds).
Under subsection (D), termination is permitted when the parent has
“knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child.”
FAM. § 161.001(b)(1)(D). The relevant time frame for evaluating this ground is
before the removal of the child or during a monitored return, as the endangering
conditions must be experienced by the child, not anticipated. See In re J.W., 645
S.W.3d 726, 749 (Tex. 2022). “The suitability of a child’s living conditions and the
conduct of parents or others in the home are relevant to a Subsection (D) inquiry.”
Id. (citing In re R.S.-T., 522 S.W.3d 92, 108–09 (Tex. App.—San Antonio 2017, no
pet.)).
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 34 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and
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conscious course of conduct by the parent is required. In re D.T., 34 S.W.3d 625,
634 (Tex. App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228
(Tex. App.—Eastland 1999, no pet.). The offending conduct need not be directed at
the child, nor does the child actually have to suffer an injury. J.O.A., 283 S.W.3d at
345. With respect to the sufficiency of the evidence to support a finding under
subsection (E), “endangering conduct is not limited to actions directed towards the
child.” Id. (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987)).
The record shows that Appellant’s children were endangered as a direct result
of her conduct and because of their environment. Both children tested positive for
marihuana in October 2021 while under Appellant’s care during a monitored return.
This was the third time K.H. tested positive for marihuana, and the first time J.H.
tested positive. K.H. had previously tested positive while living with Appellant in
August 2020 and March 2021. Appellant continued to allow the children to play
outside even though she smelled marihuana in the area and saw others smoking.
“Every park” has people smoking there “every time” they go, Appellant testified.
When asked why she did not leave these areas when she knew people were smoking
marihuana, Appellant responded that the children wanted to play at the park.
Additionally, Appellant allowed her nephew to care for the children while she
worked. She later permitted him to live with her, despite knowing that he uses
marihuana. Nothing in the record suggests that either child had ever been prescribed
low-THC cannabis. See FAM. § 161.001(c)(4).
Based on the evidence presented, the trial court could have reasonably found
by clear and convincing evidence that Appellant had allowed the children to remain
in conditions or surroundings that endangered their physical or emotional well-being
and that she had engaged in a course of conduct that endangered J.H. and K.H. See
J.O.A., 283 S.W.3d at 345. The evidence is legally and factually sufficient to uphold
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the trial court’s findings under subsections (D) and (E). Accordingly, we overrule
Appellant’s second issue. Because only one statutory ground is necessary to support
termination and because we have upheld the trial court’s finding as to subsections
(D) and (E), we need not address Appellant’s third issue in which she challenges the
finding as to subsection (O). See FAM. § 161.001(b)(1); N.G., 577 S.W.3d at 234–
35; see also TEX. R. APP. P. 47.1.
C. Best Interest
In Appellant’s fourth issue, she challenges the sufficiency of the evidence to
support the trial court’s finding that termination of parental rights would be in the
best interest of J.H. and K.H.
The evidence referenced shows that, despite the Department’s previous efforts
to assist Appellant to appropriately parent the children, she failed to do so. Clear
and convincing evidence demonstrated that placing them in a home with Appellant
would create a risk of danger to J.H. and K.H. Even while this case was pending
below, Appellant continued to use marihuana and to place her children in
environments where marihuana was present, causing the children to test positive.
The permanency case manager and the CASA representative testified that it would
be in the children’s best interest to terminate the parental rights of Appellant.
The trial court, as the trier of fact, is the sole judge of the witnesses’
credibility. A.B., 437 S.W.3d at 503. In light of the deference to be given the trial
court in this regard, the evidence presented at trial, and the Holley factors, we
conclude that the trial court could reasonably have formed a firm belief or conviction
that termination of Appellant’s parental rights would be in the best interest of J.H.
and K.H. See Holley, 544 S.W.2d at 371–72. Upon considering the record as it
relates to the emotional and physical needs of the children now and in the future, the
emotional and physical danger to the children now and in the future, the desires of
the children, the plans for the children by the Department, and Appellant’s continued
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exposure of her children to marihuana, we hold that the evidence is legally and
factually sufficient to support the trial court’s finding that termination of Appellant’s
parental rights is in the best interest of J.H. and K.H. See id. We defer to the trial
court’s findings as to the children’s best interest, see C.H., 89 S.W.3d at 27, and we
cannot hold in this case that the trial court’s findings as to best interest are not
supported by clear and convincing evidence. Accordingly, we overrule Appellant’s
fourth issue.
IV. This Court’s Ruling
We affirm the order of the trial court.
W. BRUCE WILLIAMS
JUSTICE
November 3, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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