F. C., Jr. and A. R. v. Texas Department of Family and Protective Services ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00625-CV
F. C., Jr. and A. R., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 295,562-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING
MEMORANDUM OPINION
F.C., Jr. (Father) and A.R. (Mother) appeal the trial court’s final decree
terminating their parental rights to their triplets, who were almost two at the time of trial. Father
and Mother each assert that the trial court made erroneous evidentiary rulings and improperly
denied their motions for mistrial and that the evidence is legally and factually insufficient to
support the jury’s termination findings. For the following reasons, we will affirm the trial
court’s final termination decree.
BACKGROUND
The Department filed a petition to terminate Mother’s and Father’s parental rights
to the children in September 2017. An associate judge conducted a bench trial on August 28,
2018, after which it rendered a decree terminating both parents’ rights to the children. Mother
and Father each filed requests for a de novo hearing and jury trial. See Tex. Fam. Code
§§ 201.012 (providing for de novo hearing of associate judge’s order), .015(i) (providing for jury
trial in de novo hearing if jury trial did not occur in prior proceeding). The district court
conducted a four-day jury trial in July 2019, after which it rendered a final decree terminating
both parents’ rights to the children. Mother and Father filed motions for new trial, which were
denied by operation of law, and then notices of appeal.
STANDARD OF REVIEW
A trial court may terminate a parent’s rights to his or her child if clear and
convincing evidence shows: (1) the parent has committed conduct that amounts to a statutory
ground for termination, and (2) termination of the parent’s rights would be in the child’s best
interest. Id. § 161.001; In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). In reviewing the legal
sufficiency of the evidence in such a case, we look at all the evidence in the light most favorable
to the finding to determine whether a reasonable factfinder could have formed a firm belief or
conviction that the finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume
that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could
do so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found
to be incredible. Id.; see In re K.M.L., 443 S.W.3d 101, 112–13 (Tex. 2014). We “should not
disregard undisputed facts that do not support” the determination, and “even evidence that does
more than raise surmise and suspicion will not suffice unless that evidence is capable of
producing a firm belief or conviction that the allegation is true.” K.M.L., 443 S.W.3d at 113.
In evaluating factual sufficiency, we view the entire record and uphold the finding
unless the disputed evidence that could not reasonably have been credited in favor of a finding is
so significant that the factfinder could not reasonably have formed a firm belief or conviction
that the Department’s allegations are true. In re A.B., 437 S.W.3d 498, 502–03 (Tex. 2014). We
defer to the factfinder’s reasonable determination on issues of credibility that involve an
2
evaluation of appearance or demeanor. J.P.B., 180 S.W.3d at 573; see A.B., 437 S.W.3d at 503
(requiring reviewing court to defer to “factfinder, who, having full opportunity to observe witness
testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses”).
We review a trial court’s evidentiary rulings for abuse of discretion. Southwest
Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016). The appellate court may
reverse a trial court’s judgment based on an error in the admission or exclusion of evidence only
if the appellate court concludes that the trial court made an error of law that probably caused the
rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1). Similarly, we review a trial
court’s ruling on a motion for mistrial for abuse of discretion, upholding the ruling if it is within
the “zone of reasonable disagreement.” S.A., Jr. v. Texas Dep’t of Family & Protective Servs.,
No. 03-17-00790-CV, 2018 WL 1096012, at *2 (Tex. App.—Austin Mar. 1, 2018, no pet.)
(mem. op.).
SUMMARY OF THE EVIDENCE
The testimony and other admitted evidence relevant to the jury’s statutory-
predicate and best-interest findings was as follows:
Testimony of CPS investigator
The CPS investigator testified that she became involved with this case in
September 2017 after the Department received a report that Mother had been in a car accident
while pregnant with triplets, left the hospital after the accident against doctor’s orders, and had
reported use of methamphetamine and marijuana while pregnant. The investigator testified that
Mother told her at their initial meeting that she had used methamphetamine, marijuana, and
Adderall during her pregnancy even after she knew that she was pregnant.
3
Testimony of CPS conservator for the triplets
The CPS conservator for the triplets testified that the court-ordered Family
Service Plan required Mother and Father to take any kind of drug test the Department required,
at any time. On several occasions Father refused to take the oral-swab drug tests that the
conservator required of him as a condition of having visitations with the triplets; his refusal
resulted in his being unable to have the corresponding visitation. The Department considers a
refusal to take a drug test a “positive” test, and the Department switched to having Father submit
to oral-swab tests because of its concerns about his continued drug use and his attempts to cheat
on the tests, which information the conservator obtained from the triplets’ caregivers. Father was
unable to demonstrate that he had a safe, suitable home for the triplets because he would not
allow the conservator to visit his home and did not complete his court-ordered counseling.
Mother did not complete her court-ordered counseling and did not stop using drugs, as required
by the Family Service Plan.
At trial, it had been about a year since either Mother or Father had seen the
triplets. In February 2018 the Department’s permanency goal changed from family reunification
with a concurrent goal of relative placement to adoption after Mother tested positive a few times
for methamphetamine and Father had a methamphetamine-positive hair-follicle test. The change
to the adoption goal was an effort to provide the triplets more permanency and stability.
Testimony of the guardian ad litem
The children’s guardian ad litem testified that she believed it was in their
best interest that the parental rights of Mother and Father be terminated. She explained that
permanency and stability is of the utmost importance to these young children and that Mother
had been unsuccessful after two attempts at outpatient drug rehabilitation during the pendency
4
of this case. She explained that the alternative to termination—permanent managing
conservatorship—was not a good option because it would not provide the triplets with the
stability that they need because of the potential for Mother and Father to “come and go” in the
children’s lives.
Testimony of triplets’ maternal great-grandmother
The triplets’ maternal great-grandmother testified that she was concerned about
Mother’s and Father’s drug use, an example being when she saw what she understood to be an
attempt by Mother and Father to cheat on Father’s drug test. She decided that because of their
continuing drug use, Mother and Father could no longer have visits with the triplets at the foster
parents’ (her grandson and his wife’s) house, where she spent much time caring for the triplets.
Testimony of Mother
Mother testified that she did not know that Father had been using
methamphetamine except for a period “way back” before he was placed on probation in 2015.
She said that she last used methamphetamine in October 2018. She explained that she was
“clean” at the time of the triplets’ birth but that the meconium1 test—which was positive for
methamphetamine—“goes back 6 months.” She said she had used methamphetamine while
pregnant only until she found out she was pregnant, at around three or four months along.
However, she continued to use marijuana during her pregnancy because she informed her
doctor about her use but the doctor did not tell her to stop. She admitted that the use of
methamphetamine and marijuana during pregnancy endangered the well-being of the babies.
1
Meconium is “a dark greenish mass of desquamated cells, mucus, and bile that
accumulates in the bowel during fetal life and is discharged shortly after birth.” Webster’s Third
New Int’l Dictionary 1401 (2002).
5
She admitted to having taken two drug tests during the pendency of this case that
were positive for methamphetamine. She testified that she went into rehab three times since this
case began, the last time being inpatient treatment about a year after the triplets were removed.
The Family Service Plan allowed her to have visits with her children, supervised by her
grandmother, as long as she kept having clean drug tests; those visits ceased when she started
using drugs again and refused to take oral-swab tests required by the Department. She testified
that she has been continuing to submit to drug tests on her own initiative and at her own expense
since the Department ceased requiring them of her and that the tests have shown she is “clean.”
The trial court admitted into evidence some of her recent clean tests.
Mother testified that she has another child, age nine, of whom she lost custody to
the child’s father when the boy was two years old. She sees the boy a couple of times a year and
does not pay any child support. She did not pay any child support for the triplets over the last
year, claiming that she did not know how to reach their foster parents and did not know that she
was obligated to provide for the children.
Mother admitted that she stopped going to court-ordered therapy because she
believed her therapist was too judgmental.
Testimony of Father
Father testified that he was currently serving a ten-year term of probation after he
received a 2015 deferred adjudication for possession of methamphetamine and assault on a
public servant. He explained that he stopped using methamphetamine when Mother found out
she was pregnant, around mid-2017. He testified that he last used methamphetamine several
months before February 13, 2018, when he tested positive for methamphetamine through a hair-
follicle test. He explained that he stopped taking the oral-swab drug tests that the CPS
6
conservator asked him to take because he did not trust her; he understood that his visitation with
the triplets would cease due to his refusal to take the oral-swab tests. He said that he last paid
child support about a year prior to the trial and that while he had offered to pay the foster parents
child support, they refused to accept anything from him. He admitted that he had not tried to
send money or any other form of support to the foster parents through his attorney. He also
admitted that he had failed to pay child support regularly for his three children from a prior
relationship and that their mother and the attorney general had filed an enforcement action
against him to collect the arrears.
Testimony of foster parents
The foster parents (Mother’s cousin and his wife) both testified that they loved
and cared for the triplets as if they were their own children, wanted to adopt them, had cared for
them in their home since they were two weeks old, and had been the only parents they knew.
They had three children of their own—ages eleven through fifteen—who were bonded with the
triplets and played constantly with them. The foster father testified that he planned to ensure the
triplets have a good future, and he said that the triplets call him “Father.” He explained that his
home had a “nanny cam” set up in the kitchen and that he had observed through its live feed that
during a visitation supervised by the children’s great-grandmother, Father had covered up the
camera’s lens. One time when Mother was having a supervised visitation, the camera showed
her “cussing out” the triplets’ great-grandmother, which prompted him to leave work early to
attend to the situation.
7
Documentary evidence
Removal affidavit
The trial court admitted the Department’s removal affidavit, in which the CPS
investigator averred that on September 8, 2017, the Department received a report alleging
neglectful supervision of the triplets based on Mother’s leaving the hospital against medical
advice after her accident and returning to the hospital in labor some unspecified time thereafter.
The report the Department received indicated that Mother “admitted to using methamphetamine
and marijuana during her pregnancy” and that she “was aware of her pregnancy at the time of the
use of the illegal substances.”
The investigator averred that she interviewed Mother on September 11, 2017, at
the hospital. In the interview, Mother “stated she was not using marijuana and methamphetamine
often” but “confirmed frequent use of marijuana throughout her pregnancy.” Mother also “stated
she has used methamphetamine maybe about eight to ten times during her pregnancy . . .
[and that] she was aware at the time of use . . . that she was pregnant” and that she has used
Adderall she obtained from a friend during her pregnancy. Mother stated that her last use of
methamphetamine was about four months prior. Mother agreed to take a drug test on September
15, which was negative.
The investigator averred that she spoke with a medical professional at the hospital
on September 15, who stated that the triplets were doing better than expected and were not
experiencing withdrawals. The professional stated that the infants’ meconium tested positive for
methamphetamine and marijuana.
The investigator averred that she contacted Father, who told her that he did not
know that Mother had been using methamphetamine and marijuana during her pregnancy and
8
that he wanted his children and had family that could help him care for them. He admitted that
he was on probation and takes random monthly drug tests. He agreed to take a drug test for the
Department, the results of which the Department received on September 24. The test was
positive for methamphetamine. On the same day, the Department removed the triplets from their
parents’ home and placed them in the care of their maternal great-grandmother.
Other evidence
Other documentary evidence included drug-test results for Mother and Father.
Mother’s tests were taken January 2 and 23, 2018, and were positive for methamphetamine.
Father’s test was taken on February 13, 2018, and was positive for methamphetamine. The trial
court admitted into evidence various temporary orders of the trial court, the Department’s Family
Service Plan (which was adopted by reference into a temporary order by the trial court), and the
orders of deferred adjudication and probation documents relating to Father’s criminal history.
The trial court also admitted documents offered by Mother and Father, including a record of
Father’s completion of a parenting class, Father’s income statement, Mother’s therapy notes and
treatment summary from rehab, and Mother’s recent self-initiated drug tests.
DISCUSSION
Admission of hair-follicle test results
In his first issue, Father complains that the trial court abused its discretion in
admitting the February 13, 2018 hair-follicle test results (PX-7) indicating that he tested positive
for methamphetamine because it did not meet the standard for expert witness testimony under
E.I. du Pont de Nemours & Co. v. Robinson. See 923 S.W.2d 549, 556–57 (Tex. 1995)
(outlining factors trial court may consider in determining whether underlying theories and
9
techniques of proffered scientific evidence are sufficiently reliable). He specifically contends
that (a) neither the business-records affidavit accompanying the test results nor any other
evidence demonstrates that the “devices used for testing were properly supervised or maintained”
and (b) expert witness testimony was required “to explain the science behind how the rate of hair
growth in an individual differs on various parts of the body, and therefore, has varying ranges of
time that it can test.”
The Department responds that Father did not preserve these arguments for review
because the objection he made at trial is not the same as the arguments he raises on appeal. See
Tex. R. App. P. 33.1(a) (requiring objection to state grounds for ruling sought from trial court
with sufficient specificity to make trial court aware of complaint unless specific grounds are
apparent from context); Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP,
520 S.W.3d 145, 159 (Tex. App.—Austin 2017, pet. denied). We agree with the Department.
Father’s objection at trial to the admission of PX-7 follows:
The—the exhibit that the State would like to offer requires a predicate that has not
been laid. It’s hearsay as it stands and the business records affidavit does not cure
the hearsay within the document. Specifically, what we’re objecting to is their --
the contents of the document, claiming the document is something that’s created
in the ordinary course of business with a business of scientific analysis that
requires expert testimony. [Father] does not have the ability or the personal
knowledge to lay that predicate. They have failed to lay that predicate. They’re
asking the court hold them to the admissibility standard under 705(b) case law
provided previously to the court under Robinson. We’re objecting to this evidence
on all of those basis [sic].
This objection raised the issues of claimed hearsay in PX-7 and the Department’s failure to “lay
a predicate” for the drug test by expert testimony. While his objection referred to Rule of
10
Evidence 705(b), Father did not specifically request a hearing thereunder,2 and while he referred
to Robinson, he did not specify how the exhibit was purportedly deficient and inadmissible, or
what predicate an expert was required to lay. In contrast, on appeal Father specifically complains
that the exhibit contained no evidence demonstrating that the scientific testing methods used
“were properly supervised or maintained” and that an expert witness was required to explain how
the “underlying facts and data . . . relate to the relevant time period of the hair follicle.” We
conclude that his objection at trial does not comport with the issues he raises on appeal and that
he has, accordingly, waived the issues. See Elness Swenson Graham Architects, 520 S.W.3d at 159.
However, even if Father’s objection had preserved his appellate issues, we would
conclude that the trial court properly admitted PX-7 as a business record. See Tex. R. Evid.
803(6); In re E.B., No. 11-19-00001-CV, 2019 WL 3955974, at *3 (Tex. App.—Eastland Aug. 22,
2019, no pet.) (mem. op.) (rejecting appellant’s argument that drug tests admitted as exhibits
under business-records exception to hearsay rule required live testimony of expert witness as to
authenticity of test, process, and equipment used); 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.) (rejecting
appellant’s contention that drug tests properly admitted under business-records exception needed
expert testimony to interpret them); 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.) (rejecting appellant’s argument that
drug tests admitted as business records needed to show type of equipment used, qualifications of
person conducting test, and that tests were standard ones as long as tests demonstrated they
2
Rule 705(a) provides that an expert may state an opinion and give the reasons therefor
without first testifying to the underlying facts or data, unless the court orders otherwise. See
Tex. R. Evid. 705(a). Subsection (b) of that rule provides an adverse party the opportunity to
conduct a voir dire examination of the expert before he or she states an opinion or discloses the
underlying facts or data supporting it. See id. (b).
11
had “sufficient indicia of trustworthiness or reliability”); cf. In re K.C.P., 142 S.W.3d 574, 580
(Tex. App.—Texarkana 2004, no pet.) (concluding that drug tests were improperly admitted as
exhibits under business-records exception because they contained “no information as to the
qualifications of the person or the equipment used, the method of administering the test, and
whether the test was a standard one for the particular substance,” indicating lack of
trustworthiness).
Because the hair-follicle test was accompanied by an affidavit that complies with
Rule of Evidence 902(10)(B), the only question regarding its admissibility was whether the drug
test result showed sufficient indicia of trustworthiness to bring it within the business-records
exception to the hearsay rule. See Tex. R. Evid. 803(6); A.T., 2006 WL 563565, at *4. The
accompanying business-records affidavit avers that the drug test “utilize[ed] strict chain of
custody procedures” and “was performed utilizing GC/MS (gas chromatography/mass
spectrometry) instruments by a certified scientist and reviewed by a licensed medical review
officer.” It further avers that a record of the test result was kept in the regular course of business
of the Texas Alcohol and Drug Testing Service and that it is in the regular course of business of
that entity for an employee or representative with knowledge of the act, event, condition,
opinion, or diagnosis to record the information at or reasonably near the time it occurred. The
drug test itself was signed by the medical review officer, an MD, verifying that the test was
positive. The test result identifies the collection site, date, type of panel test used, and name of
the lab that performed the test. Attached also to the business-records affidavit within PX-7 was
(a) the laboratory report indicating the quantitative results, identifying the lab as “DHHS
Certified,” and (b) the “Hair and/or Urine Custody and Control Form” that accompanied the
sample Father provided as it was transported from the testing facility to the laboratory. We
12
conclude that the trial court did not abuse its discretion in determining that the drug test and
accompanying affidavit showed sufficient indicia of trustworthiness to be properly admitted as a
business record. Accordingly, we overrule Father’s first issue.
Admission of the removal affidavit
In her second issue, Mother complains that the trial court abused its discretion in
admitting the affidavit of removal offered by the Department because it contained hearsay. At
trial, Mother objected to three specific portions of the affidavit: (1) the first paragraph of page
two, (2) the third paragraph of page three, and (3) the last sentence of page five.3 See In re L.M.,
572 S.W.3d 823, 832 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (noting that objection to
hearsay within document must identify which specific parts contain hearsay to preserve error
as to those parts). The State responds that the challenged statements in the affidavit were
admissible under either the business-records or public-records exceptions to the hearsay rule.
3
Those portions of the affidavit averred:
(1) On September 8, 2017, the Texas Department of Family and Protective Services
received a report alleging Neglectful Supervision of [the triplets] by their mother[.]
The report stated [that she] was in a car accident and was brought to the hospital for
the incident. [The affidavit continues with several more sentences indicating what
“the report stated.”]
(2) On September 15, 2017 [the] Investigator spoke with a Medical professional[] who
stated that the infants are doing better than expected considering the circumstances.
The medical professional stated the children are not experiencing any withdrawals.
The medical professional stated the triplet[s’] meconium was positive for
methamphetamine and marijuana. [The affidavit continues with several more sentences
indicating what “the medical professional” stated.]
(3) It is the Department[’]s recommendation that the children remain in care of [the
great-grandmother] until [Mother] can show she is not engaging in illegal drug
abuse, and can provide a stable living environment, gets proper help from a drug
rehabilitation program, and receives parenting classes to demonstrate a capability of
providing care for the children.
13
See Tex. R. Evid. 803(6), (8). Mother counters that the first exception does not apply because
the affidavit was prepared specifically for litigation and therefore does not meet the
trustworthiness requirement of Rule 803(6). She also contends that neither exception applies
because the affidavit contains hearsay within hearsay. See id. R. 805.
When a trial court admits evidence that is hearsay and admissible for a limited
purpose, a party may claim error only if the party requests the court to instruct the jury
accordingly. See id. R. 105(b)(1). While Mother requested that the trial court admit only a
redacted version of the affidavit—removing the challenged hearsay statements—she did not
request an instruction that the jury consider the affidavit for the limited purpose of proving that
the children were removed for abuse or neglect under Chapter 161, and not for the truth of the
matters asserted. See id. R. 801(d)(2) (defining hearsay as statement offered to prove truth of
matter asserted); see also Tex. Fam. Code § 161.001(b)(1)(O). Because the challenged out-of-
court statements were admissible for another purpose—to prove that the children were removed
for abuse or neglect—the trial court did not abuse its discretion by allowing them into evidence
for that purpose. Furthermore, absent a limiting instruction, the claim of error in the admission
of the hearsay evidence is not preserved for our review. See Tex. R. Evid. 105(b)(1); cf.
Ledesma v. State, No. 01-15-00534-CR, 2016 WL 2930438, at *3 (Tex. App.—Houston [1st Dist.]
May 17, 2016, no pet.) (mem. op.); Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App.
2007) (“Once evidence has been admitted without a limiting instruction, it is part of the general
evidence and may be used for all purposes.”). We overrule Mother’s second issue.
Denial of motion for mistrial
Both Mother and Father contend that the trial court abused its discretion in
denying their motions for mistrial, which they requested after a witness for the Department
14
testified allegedly in violation of a motion in limine. The witness was the triplets’ maternal
great-grandmother, with whom the triplets had lived after the Department removed them from
their parents’ care. The trial court had previously granted in part the parents’ motion in limine as
to the associate judge’s termination findings, noting: “ct grants w/ regard to [associate judge’s]
findings re termination.”
On direct examination, the Department pursued the following line of questioning
with the great-grandmother:
Department: Now, when they were—initially they were placed with you, correct?
Witness: Right, for the first year.
Department: And while they were placed with you, do you know a gentleman
and a lady by the name of [the foster mother and foster father]?
Witness: They’re the ones—they’re my grandson and my granddaughter that I
moved in with.
Department: Okay. Now, so initially they were—you had the triplets, but they
were living with you.
Witness: I was living with them in their house because my house has got four
dogs in it and I didn’t want to take them there.
Department: Okay. So you were technically in charge, but they were living—
Witness: I was in charge, but I was living with my grandson. They built a room
onto the—their house for me and the babies.
Department: And at some point did it transition to they were officially in charge
and you were still there?
Witness: Yes. We went to several, I guess, hearings through court and their
rights to the babies were terminated, and then that—at that point they told me I
was too old to—to adopt the babies and I would have to find somebody else that
would adopt them. So [the foster mother and foster father] had fallen in love with
them—
[Counsel for Mother asks to approach the bench.]
15
Mother and Father contend that the above testimony indicating that their rights to
the children had previously been “terminated” constituted an “impermissible comment on the
weight of the evidence by a judge who had presided over the same cause.” See Tex. R. Evid.
605; In re T.T., 39 S.W.3d 355, 358–59 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (holding
that trial court erred in admitting into evidence temporary order rendered by same judge
presiding over final termination proceedings where temporary order made same type of findings
that jury would be asked to make because order functioned as improper comment by judge on
weight of evidence). We disagree.
Unlike in T.T., here the associate judge’s fact findings and termination order were
not admitted into evidence; rather, a third-party witness mentioned that Mother’s and Father’s
rights “were terminated,” without elaboration and in the context of explaining the triplets’ living
situation. The facts here, therefore, are distinguishable from those in T.T., wherein the appellate
court held that the admission of a temporary order by the judge who was presiding over the final
termination hearing—which order included specific findings that the parents had endangered
their children—was both hearsay and an impermissible comment on the weight of the evidence
by the judge. See 39 S.W.3d at 358–59. We believe that any prejudicial effect that may have
resulted from the great-grandmother’s testimony about the parents’ rights having been previously
“terminated” could have been cured by an instruction to disregard from the trial court. Mother
and Father, however, refused an instruction and instead sought a mistrial. When an instruction to
disregard could have cured an objectionable occurrence, the party must request such instruction
or will have forfeited appellate review of the issue. See In re B.W., 99 S.W.3d 757, 760 (Tex.
App.—Houston [1st Dist.] 2003, no pet.); S.A., 2018 WL 1096012, at *4.
16
A mistrial is an appropriate remedy only in “extreme circumstances” for “a
narrow class of highly prejudicial and incurable errors.” Archie v. State, 221 S.W.3d 695, 699
(Tex. Crim. App. 2007). The remedy “halts trial proceedings when error is so prejudicial
that expenditure of further time and expense would be wasteful and futile.” Ocon v. State,
284 S.W.3d 880, 884 (Tex. Crim. App. 2009). On this record, we cannot conclude that the great-
grandmother’s testimony was so prejudicial to Mother and Father that an instruction to disregard
could not have cured it, and Mother’s and Father’s respective counsels did not seek an
instruction to disregard. The trial court’s denial of Mother’s and Father’s motions for mistrial
was well within the “zone of reasonable disagreement,” see S.A., 2018 WL 1096012, at *4, and
the trial court therefore did not abuse its discretion in denying the motions for mistrial.
Accordingly, we overrule Mother’s and Father’s respective first issues.
Termination of Mother’s rights
Mother contends that the evidence is legally and factually insufficient to support
the jury’s findings that (1) she engaged in conduct or knowingly placed the children with persons
who engaged in conduct that endangered the children’s physical or emotional well-being, (2) she
failed to comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of the children who have been in the permanent or
temporary managing conservatorship of the Department for at least nine months as a result of
their removal from her by the Department for abuse or neglect, and (3) termination was in the
children’s best interests. See Tex. Fam. Code § 161.001(b)(1)(E), (O), (2).
17
Statutory-predicate finding
We first consider whether the evidence was legally and factually sufficient to
support the jury’s finding that Mother engaged in conduct that endangered the triplets’ physical
or emotional well-being. See id. § 161.001(b)(1)(E). Evidence showed that Mother used
methamphetamine and marijuana while she was pregnant with the triplets, even after she knew
that she was pregnant. Evidence showed that she continued to use methamphetamine after her
children had been removed, despite the requirement in the Family Service Plan that she abstain
from the use of illegal drugs and her knowledge that her visitation with the triplets would be
thereby jeopardized and that her visitations would cease upon her refusals to submit to oral-swab
testing. Mother had been using methamphetamine since she was 21 years old and was 28 at the
time of trial.
A mother’s use of illegal drugs during pregnancy is an act that jeopardizes a
child’s well-being because it exposes the child to the possibility of being born with adverse
medical conditions, even if there is no actual injury that results. See In re M.D.V., No. 14-04-
00463-CV, 2005 WL 2787006, at *3 (Tex. App.—Houston [14th Dist.] Oct. 27, 2005, no pet.)
(mem. op.). Furthermore, a parent’s continued use of illegal drugs after her children are removed
places her visitations and, thus, relationship with her children at risk. See In re J.S., 584 S.W.3d
622, 635 (Tex. App.—Houston [1st Dist.] 2019, no pet.); In re S.M.L.D., 150 S.W.3d 754, 757–
58 (Tex. App.—Amarillo 2004, no pet.).
Considering the evidence in the light most favorable to the jury’s subsection (E)
finding, we conclude that the jury could reasonably have formed a firm belief or conviction that
Mother engaged in conduct that endangered the triplets’ physical or emotional well-being. See
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Furthermore, there was no significant disputed
18
evidence that would render such finding unreasonable. See id. Therefore, the evidence was
legally and factually sufficient to support the jury’s subsection (E) finding. Because only one
predicate finding is required to support termination, see In re A.V., 113 S.W.3d 355, 362 (Tex.
2003), we need not review the jury’s subsection (O) finding.
Best-interest finding
A factfinder’s best-interest determination is reviewed in light of the non-
exhaustive list of considerations set out in Holley v. Adams: the child’s wishes, if the child is of
an appropriate age to express such wishes; the child’s present and future emotional and physical
needs; present and future emotional and physical danger to the child; the parenting abilities of
the individuals seeking custody; programs available to assist those people to promote the child’s
best interest; plans for the child by the people or agency seeking custody; the stability of the
home or proposed placement; the parent’s acts or omissions that may indicate that the parent-
child relationship is improper; and any excuse for the parent’s acts or omissions. 544 S.W.2d
367, 371–72 (Tex. 1976).
The Department is not required to prove all of the Holley factors “as a condition
precedent to parental termination,” and a lack of evidence of some of the factors does not
“preclude a factfinder from reasonably forming a strong conviction or belief that termination is
in the child’s best interest, particularly if the evidence were undisputed that the parental
relationship endangered the safety of the child.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
Evidence presented to satisfy a predicate statutory-ground finding may also be probative of the
child’s best interest. Id. at 28. We summarize the evidence bearing on only those Holley factors
on which there is relevant evidence in the record.
19
“The need for permanence is the paramount consideration when determining a
child’s present and future physical and emotional needs.” M.R. v. Texas Dep’t of Family &
Protective Servs., No. 03-17-00715-CV, 2018 WL 1023899, at *3 (Tex. App.—Austin Feb. 23,
2018, no pet.) (mem. op.). While there was no evidence about any physical and emotional needs
unique to the triplets, the guardian ad litem testified that permanence and stability were
especially important to them, considering the possibility of Mother’s and Father’s going in and
out of their lives.
The jury heard evidence that Mother’s illegal drug use occurred while she knew
she was pregnant with the triplets and that she knew such behavior was endangering to them.
Mother continued to use illegal drugs during the pendency of this case, and although some
evidence indicated that she had abstained from drugs in the months leading up to trial, the jury
could have reasonably concluded that her long history of drug use was likely to pose future
physical and emotional danger to the children. Mother did not complete her court-ordered
therapy, nor did she submit to all of the Department’s requested drug tests.
The foster parents had experience raising three children of their own and were
providing a loving, safe home for the triplets. They had plans to raise the triplets as their own
upon adoption and to ensure that they had a good future. They had provided the triplets with a
stable home since they were two weeks old. Mother did not identify her plans for the children or
explain how she would be able to provide them stability and hoped to remain in a relationship
with Father, despite their respective histories of drug use.
Considering the evidence in the light most favorable to the jury’s best-interest
finding, we conclude that the jury could reasonably have formed a firm belief or conviction that
termination of Mother’s parental rights was in the triplets’ best interest. See J.F.C., 96 S.W.3d
20
at 266. Furthermore, there was no significant disputed evidence that would render such finding
unreasonable. See id. Therefore, the evidence was legally and factually sufficient to support the
jury’s best-interest finding, and we accordingly overrule Mother’s third and final issue.
Termination of Father’s rights
Father contends that the evidence is legally and factually insufficient to support
termination of his parental rights on the basis of the trial court’s findings that (1) he engaged in
conduct or knowingly placed the children with persons who engaged in conduct that endangers
the physical or emotional well-being of the children, (2) he failed to comply with the provisions
of a court order that specifically established the actions necessary for him to obtain the return of
the children who have been in the permanent or temporary managing conservatorship of the
Department for at least nine months as a result of the children’s removal from him by the
Department for abuse or neglect, and (3) termination of his parental rights was in the best interest
of the children. See Tex. Fam. Code § 161.001(b)(1)(E), (O), (2).
Statutory-predicate finding
We first consider whether the jury’s subsection (E) finding was supported by
legally and factually sufficient evidence. See id. § 161.001(b)(1)(E). As noted above with
respect to Mother, a parent’s drug use that continues after a child is removed from the parent’s
care, in the face of periodic drug tests that place the parent’s relationship with his child in
jeopardy, is evidence of an endangering course of conduct. J.S., 584 S.W.3d at 635; S.M.L.D.,
150 S.W.3d at 758. A parent’s criminal history is also a factor that may be considered when
determining if the parent has engaged in an endangering course of conduct, because routinely
21
subjecting a child to the probability that the child will be left alone because his parent is in jail
endangers the child’s physical and emotional well-being. J.S., 584 S.W.3d at 635.
Father was in the first half of a ten-year term of probation for a drug and
assaultive offense at the time of trial and when he used methamphetamine and refused to take
drug tests. Evidence supported an inference that he attempted to cheat on drug tests. This
evidence shows that Father had a continuing problem with substance abuse that persisted
throughout the termination proceedings and that his drug use put him at a high risk of being
incarcerated. Texas courts have repeatedly held that a parent’s illegal drug usage, even after
removal of the child from the home and during the pendency of termination proceedings, may
establish an endangering course of conduct because it creates the possibility that the parent will
be impaired or imprisoned and thus incapable of parenting. Id. at 636. Additionally, Father
knowingly relinquished his limited visitation with the triplets by refusing to take oral-swab drug
tests, which put his relationship with the triplets—during the very time when that relationship
was in jeopardy by virtue of these proceedings—at further risk. See S.M.L.D., 150 S.W.3d
at 757–58.
Considering the evidence in the light most favorable to the jury’s subsection (E)
finding, we conclude that the jury could reasonably have formed a firm belief or conviction that
Father engaged in conduct that endangered the triplets’ physical or emotional well-being. See
J.F.C., 96 S.W.3d at 266. Furthermore, there was no significant disputed evidence that would
render such finding unreasonable. See id. Therefore, the evidence was legally and factually
sufficient to support the jury’s subsection (E) finding. Because the evidence supports the
subsection (E) finding, we need not review the jury’s subsection (O) finding. See A.V., 113 S.W.3d
at 362.
22
Best-interest finding
Father also challenges the legal and factual sufficiency of the jury’s best-interest
finding. Most of the evidence summarized above in our best-interest analysis as it pertains to
termination of Mother’s rights also pertains to termination of Father’s rights, and he similarly did
not present evidence of his plans for the children or of several other of the Holley factors.
Furthermore, the evidence relating to his endangering course of conduct weighs heavily in favor
of termination. Our review of the record demonstrates that the evidence is legally and factually
sufficient to support the jury’s best-interest finding. Accordingly, we overrule Father’s third issue.
CONCLUSION
Having overruled each of Mother’s and Father’s respective issues, we affirm the
trial court’s final decree terminating the parental rights of Mother and Father to their three
children.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Kelly
Affirmed
Filed: January 9, 2020
23