in the Interest of D.R. and C.R., Children ( 2021 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00019-CV
IN THE INTEREST OF D.R. AND C.R., CHILDREN
On Appeal from the 102nd District Court
Bowie County, Texas
Trial Court No. 20C0411-102
Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Stevens
OPINION
In a suit brought by the Texas Department of Family and Protective Services (the
Department), the trial court terminated Mother’s parental rights to her children on three grounds
specified in Section 161.001, subsections (b)(1)(D), (O), and (P), of the Texas Family Code. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (O), (P).1 On appeal, Mother argues that the
evidence is legally and factually insufficient to support the trial court’s findings on the statutory
grounds and its finding that termination of her parental rights was in the children’s best interests.
Mother also argues that the trial court erred by failing to hold statutory hearings before the final
hearing, by failing to grant the motion for a 180-day extension based on extenuating
circumstances, and by admitting drug test results over Mother’s objection.
We find that the evidence is sufficient to support the trial court’s Ground D finding and
its conclusion that terminating Mother’s parental rights was in the children’s best interests. We
also find that Mother’s complaint about statutory hearings is moot, the trial court did not abuse
its discretion in overruling the motion for a 180-day extension, and any error in admitting drug
test results was rendered harmless by substantially similar testimony admitted without objection.
As a result, we affirm the trial court’s judgment.
I. Legally and Factually Sufficient Evidence Supports the Trial Court’s Findings
A. Standard of Review
“The natural right existing between parents and their children is of constitutional
dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting
1
To protect the confidentiality of the children, we refer to the appellant as Mother and to the children by initials. See
TEX. R. APP. P. 9.8(b)(2).
2
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to
make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel
v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates
fundamental interests, a higher standard of proof—clear and convincing evidence—is required at
trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). “‘Clear and convincing
evidence’ is that ‘degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.’” Id. (quoting TEX. FAM.
CODE ANN. § 101.007) (citing In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). Based on this
standard, we are required to “engage in an exacting review of the entire record to determine if the
evidence is . . . sufficient to support the termination of parental rights.” Id. (quoting In re A.B.,
437 S.W.3d at 500).
“In our legal sufficiency review, we consider all the evidence in the light most favorable
to the findings to determine whether the fact-finder reasonably could have formed a firm belief
or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920
(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)
(per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We
assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a
reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have
reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re
J.P.B., 180 S.W.3d at 573).
3
“In our review of factual sufficiency, we give due consideration to evidence the trial
court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209
S.W.3d 105, 109 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder
reasonably could have found to be clear and convincing and determine ‘whether the evidence is
such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the
. . . allegations.’” Id. (quoting In re H.R.M., 209 S.W.3d at 109 (quoting In re C.H., 89 S.W.3d
17, 25 (Tex. 2002)) (citing In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002))). “If, in light of
the entire record, the disputed evidence that a reasonable factfinder could not have credited in
favor of the finding is so significant that a factfinder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.” Id. (quoting In re J.F.C., 96
S.W.3d at 266).
“Despite the profound constitutional interests at stake in a proceeding to terminate
parental rights, ‘the rights of natural parents are not absolute; protection of the child is
paramount.’” Id. (quoting In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T.,
872 S.W.2d 189, 195 (Tex. 1994)) (citing In re M.S., 115 S.W.3d 534, 547 (Tex. 2003))). “A
child’s emotional and physical interests must not be sacrificed merely to preserve parental
rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.)
(citing In re C.H., 89 S.W.3d at 26)).
B. The Evidence at Trial
At trial, Cherrell Stuart, a conservatorship worker with the Department, testified that she
became involved in the case in March 2020, after Mother admitted to using methamphetamine
4
and to having an unstable and unsafe environment for the children. According to Stuart, the
children were living in surroundings with exposed wires and boards, and their room had graffiti
on the walls and no beds. Stuart testified that she had visited the home after Mother had covered
the exposed wires but noticed that there were still safety concerns for the children in the home.
Stuart testified that, although Mother completed some of her family-based services, she
did not submit to several random drug testing requests. Stuart said that, even after Mother was
released from inpatient drug treatment in May 2020, she failed to submit to six drug tests
between June 2020 and February 2021 and tested positive for methamphetamine on August 11,
October 8, and November 30, 2020, and January 13, 2021. Stuart testified that Mother admitted
that she was using drugs when her drug test results were positive. Over Mother’s objection, the
trial court admitted drug test results attached to a business records affidavit, which showed that
Mother tested positive for methamphetamine on February 18 and 28, April 15, August 11,
October 8, and November 30, 2020.
Stuart also said that Mother was dating a man that was in a treatment facility until
December 2020. Stuart told Mother that any person she was dating would also have to work
family-based services, but the boyfriend never did, and Stuart believed they were still dating
because Mother said that, “once he got out of jail they were trying to get a house together.”
Stuart testified that Mother was living with the boyfriend’s father or grandfather.
Stuart testified that the children had behavioral issues that were improving with therapy.
She believed that it was in their best interests to remain in their foster placement, which was a
stable environment. During cross-examination, Stuart admitted that nothing prevented the foster
5
parents from entering a discharge notice, that D.R. was very attached to Mother and was missing
her, and that traumatized children can exhibit negative behavior. Stuart also testified that Mother
had communicated with the children regularly during her weekly visitation.
Patricia Smith, the Court Appointed Special Advocate, testified that she regularly saw the
children and visited with Mother. Smith said Mother’s progress was “very slow” and that, even
though Mother had completed some services, she was not “very consistent in those services.”
According to Smith, the children did not really ask about Mother and were doing well in their
short-term placement.
Smith testified that D.R. was seven years old and had attention deficit and hyperactivity
disorder (ADHD) and other behavioral issues but was showing improvement with therapy and
medication. Smith also said that C.R., who was five years old, had a speech delay that was
improving with therapy. During cross-examination, Smith agreed that the children were not in
an adoptive home and did not have permanency, but still felt that it was in the best interests of
the children to find permanency after Mother’s parental rights were terminated.
C. Sufficient Evidence Supports the Ground D Predicate Finding
“Only one predicate finding under Section 161.001[b](1) is necessary to support a
judgment of termination when there is also a finding that termination is in the child’s best
interest.”2 In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (quoting
In re A.V., 113 S.W.3d at 362) (citing In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana
2011, no pet.)). Yet, because the trial court’s finding under Ground D “may have implications
2
Mother also challenges the trial court’s Ground P and Ground O findings. Because we find that sufficient evidence
supported the Ground D finding, we need not address these points.
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for . . . parental rights to other children,” due process demands that we review the trial court’s
findings under this ground. In re N.G., 577 S.W.3d 230, 234 (Tex. 2019) (per curiam).
Termination under Ground D is proper when there is clear and convincing evidence that a
parent has “knowingly placed or knowingly allowed the child[ren] to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child[ren].” TEX. FAM.
CODE ANN. § 161.001(b)(1)(D). Ground D focuses on the children’s environment, and the
Department had the burden of proving by clear and convincing evidence that that environment
endangered their physical or emotional well-being. See In re L.C., 145 S.W.3d 790, 796 (Tex.
App.—Texarkana 2004, no pet.). “In evaluating termination under [G]round (D), however, we
are to examine the time prior to [the children’s] removal to determine whether the environment
of the home posed a danger to [their] physical or emotional well-being.” In re L.E.S., 471
S.W.3d at 926 (citing In re L.C., 145 S.W.3d at 795); see In re Y.Z., No. 04-20-00429-CV, 2021
WL 469014, at *3 (Tex. App.—San Antonio Feb. 10, 2021, no pet.) (mem. op.).
“A child is endangered when the environment creates a potential for danger that the
parent is aware of, but disregards.” In re N.B., No. 06-12-00007-CV, 2013 WL 1605457, at *9
(Tex. App.—Texarkana May 8, 2012, no pet.) (mem. op.). Ground “(D) permits termination [of
parental rights] based on a single act or omission [by the parent].” In re L.C., 145 S.W.3d 790,
797 (Tex. App.—Texarkana 2004, no pet.); see In re A.B., 125 S.W.3d 769, 777 (Tex. App.—
Texarkana 2003, pet. denied). “[U]nlawful conduct by a parent . . . can create an environment
that endangers the physical and emotional well-being of a child as required for termination under
[Ground] (D).” In re C.J.B., No. 05-19-00165-CV, 2019 WL 3940987, at *6 (Tex. App.—Dallas
7
Aug. 21, 2019, no pet.) (mem. op.). “Endanger,” as used in the definition of Ground D, “means
to expose to loss or injury; to jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,
533 (Tex. 1987); see In re L.E.S., 471 S.W.3d at 923. “Although ‘endanger’ means more than a
threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it
is not necessary that the conduct be directed at the child or that the child actually suffers injury.”
In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam) (quoting Boyd, 727 S.W.2d at 533).
“[I]llegal drug use by a parent . . . supports the conclusion that the children’s
surroundings endanger their physical or emotional well-being.” In re K.B., No. 06-20-00074-
CV, 2020 WL 7702179, at *4 (Tex. App.—Texarkana Dec. 29, 2020, no pet.) (mem. op.)
(quoting In re L.E.S., 471 S.W.3d at 925) (citing In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—
Fort Worth 2003, no pet.); In re N.B., No. 06-12-00007-CV, 2012 WL 1605457, at *9 (Tex.
App.—Texarkana May 8, 2012, no pet.) (mem. op.) (“unlawful conduct by persons who live in
the child’s home or with whom the child is compelled to associate on a regular basis in his home
is a part of the ‘conditions or surroundings’ of the child’s home under [Ground] D”). The
evidence admitted at trial established that Mother was using methamphetamine before the
Department filed its petition to terminate her parental rights in March 2020.
Also, Stuart testified that the children were living in surroundings with exposed wires and
boards. Although Mother covered the exposed wires during the pendency of the case, “[t]he
time period relevant to a review of conduct and environment under statutory [G]round D is prior
to the children’s removal,” and Stuart said the surroundings still posed safety concerns for the
8
children. In re R.W., No. 06-21-00012-CV, 2021 WL 2370618, at *5 (Tex. App.—Texarkana
June 10, 2021, no pet.) (quoting In re Y.Z., 2021 WL 469014, at *3).
According to Stuart, Mother admitted to the methamphetamine use and to having an
unstable and unsafe environment for the children before their removal. We find that legally and
factually sufficient evidence, including Mother’s drug use and the home’s exposed wires and
boards, established by clear and convincing evidence that Mother placed or knowingly allowed
the children to remain in conditions or surroundings that endangered their physical well-being.
As a result, we overrule Mother’s first point of error.
D. Sufficient Evidence Supports the Best-Interests Finding
Next, Mother challenges the sufficiency of evidence supporting the trial court’s best-
interests finding. In determining the best interests of a child, courts consider the following
Holley factors:
(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, (6) the plans for the child by these
individuals, (7) the stability of the home, (8) the acts or omissions of the parent
that may indicate the existing parent-child relationship is not a proper one, and
(9) any excuse for the acts or omissions of the parent.
In re N.L.D., 412 S.W.3d 810, 818–19 (Tex. App.—Texarkana 2013, no pet.) (citing Holley v.
Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)); see In re E.N.C., 384 S.W.3d 796, 807 (Tex.
2012); see also TEX. FAM. CODE ANN. § 263.307(b). Further, “we may consider evidence used to
support the grounds for termination of parental rights in the best-interest analysis.” In re L.W.,
609 S.W.3d 189, (Tex. App.—Texarkana 2020, no pet.) (citing In re C.H., 89 S.W.3d at 28).
9
“There is no requirement that the party seeking termination prove all nine factors.” In re J.S.,
No. 06-20-00084-CV, 2021 WL 1286570, at *5 (Tex. App.—Texarkana Apr. 7, 2021, no pet.)
(mem. op.) (quoting In re N.L.D., 412 S.W.3d at 819).
Here, the evidence showed that D.R. was very attached to Mother and missed her and that
Mother communicated with the children on a regular basis. Although there was evidence in the
record that the children were doing well in their placement, there was no evidence that they were
bonded to their foster family, who had no intent to adopt them. As a result, we find that the first
Holley factor weighs against termination of Mother’s parental rights.
Even so, we find that the remaining Holley factors weigh in favor of terminating
Mother’s parental rights. The record shows that D.R., who was seven, had ADHD and
behavioral issues that required therapy and that C.R., who was five, also required therapy for a
speech impediment. As a result, the needs of these young children were great and it was unlikely
that Mother would be able to meet their needs because of her drug use, which “suggest[ed] a
substantial likelihood that [she] would be a danger to the children in the future or put them in a
possibly harmful situation.” In re X.R.L., 461 S.W.3d 633, 640–41 (Tex. App.—Texarkana
2015, no pet.); see In re J.S., 2021 WL 1286570, at *5 (“Parental drug abuse is also a factor to be
considered in determining a child’s best interests.”) (quoting In re N.L.D., 412 S.W.3d 810, 819
(Tex. App.—Texarkana 2013, no pet.)). Mother’s use of methamphetamine during the pendency
of the case, even after being released from inpatient treatment, showed that she lacked the
parental abilities necessary to care for the children, that she failed to learn from the programs
available to assist her, and that the existing parent-child relationship was not a proper one.
10
Mother’s boyfriend was currently in a treatment facility, and the only plan introduced by Mother
involved the children moving into either the boyfriend’s family’s home or a new home that
would be occupied by boyfriend after his release from jail. Given the boyfriend’s failure to
participate in family-based services, Mother’s continued drug use, and her prior admissions that
her home was an unstable and unsafe environment for the children, the Department showed that
Mother could not provide D.R. and C.R. with a stable environment. Although the Department
did not yet have a permanent plan for the children, they were in a stable foster home, and the
Department sought to terminate Mother’s parental rights so the children could have permanency
in the future.
After weighing all the Holley factors, we conclude that the trial court had legally and
factually sufficient evidence to find that termination of Mother’s parental rights was in the
children’s best interests. As a result, we overrule Mother’s second point of error.
II. Mother’s Complaint About Statutory Hearings Is Moot
Mother complains that the trial court failed to hold statutory hearings after it entered
temporary orders in this case. Instead, the trial court entered status hearing and permanency
hearing orders by agreement due to the COVID-19 emergency, but Mother argues that her
signature did not appear on those orders. We find Mother’s complaints moot.
Mother’s complaints relate to temporary orders. See In re K.E., No. 02-20-00045-CV,
2020 WL 4360493, at *3 (Tex. App.—Fort Worth July 30, 2020, pet. denied) (mem. op.) (a
“Status Hearing Order is a temporary order”). “[A] temporary order is superseded by entry of a
final order of termination, rendering moot any complaint about the temporary order.” In re
11
J.F.G., III, 500 S.W.3d 554, 559 (Tex. App.—Texarkana 2016, no pet.) (quoting In re A.K., 487
S.W.3d 679, 683 (Tex. App.—San Antonio 2016, no pet.)); In re C.R.J., No. 06-13-00053-CV,
2014 WL 199209, at *2 (Tex. App.—Texarkana Jan. 17, 2014, no pet.) (mem. op.) (complaints
regarding temporary hearings or temporary orders rendered moot when final termination order
was entered). Because a final order terminating Mother’s parental rights was entered in this
case, we overrule Mother’s third point of error as moot.
III. Overruling the Motion For a 180-day Extension Was Not an Abuse of Discretion
A trial court can grant a 180-day extension of the dismissal deadline in a suit to terminate
a parent-child relationship filed by the Department on a showing that “extraordinary
circumstances necessitate the child[ren] remaining in the temporary managing conservatorship of
the department and that continuing the appointment of the department as temporary managing
conservator is in the best interest of the child.” TEX. FAM. CODE ANN. § 263.401(b) (Supp.).3
“We review a trial court’s decision to grant or deny an extension of the dismissal date under an
abuse of discretion standard.” In re A.B., No. 06-20-00073-CV, 2021 WL 1216884, at *8 (Tex.
App.—Texarkana Apr. 1, 2021, no pet.) (mem. op.) (citing In re A.S., No. 12-16-00104-CV,
2016 WL 5827941, at *1 (Tex. App.—Tyler Sept. 30, 2016, no pet.) (mem. op.) (citing In re
A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth 2012, pet. denied)). “The focus on
granting this extension ‘is on the needs of the child.’” Id. (quoting In re A.S., 2016 WL 5827941,
at *2).
3
The Texas Legislature recently amended this statute, and the amendment will take effect on September 1, 2021.
See Act of May 15, 2021, 87th Leg., R.S., ch. 8 (H.B. 576) (to be codified at TEX. FAM. CODE § 263.401).
12
The final hearing in this case was set for March 4, 2021, which was also the one-year
dismissal date under Section 263.401 of the Texas Family Code. At trial, Mother orally moved
for a continuance and extension of the dismissal date. She argued that she had provided the
name of a family member as a potential placement for the children and would agree to sign over
permanent managing conservatorship to that family member. Mother argued that the dismissal
date should be extended “so that family placement [could] be fully explored prior to termination
of parental rights.” The trial court denied Mother’s motion after the Department’s counsel
stated, “It’s my understanding the paternal aunt was supposed to be in contact with the
[D]epartment, was supposed to do some address changes. She had multiple months to do this,
that has not occurred.”
On appeal, Mother argues that D.R. wanted to be placed with her, that she completed
services offered by the Department, that the Department did not amend the service plan to
address Mother’s continued needs, and that it was not in the best interests of the children to be
placed with foster parents that did not want to adopt them. Mother does not argue on appeal that
any family member sought to take the children in.
We find no extraordinary circumstances in this case that required the trial court to extend
the dismissal deadline. Mother argues that the Department’s service plan should have done
something more to ensure that she remained drug free during the pendency of the case. Yet,
“when a parent, through her own choices, fails to comply with a service plan and then requests
an extension of the statutory dismissal date in order to complete the plan, the trial court does not
abuse its discretion by denying the extension.” In re A.B., 2021 WL 1216884, at *8 (quoting
13
In re A.S., 2016 WL 5827941, at *2). Even though D.R. loved Mother and the foster family was
not willing to adopt the children, the trial court could have found that Mother’s drug use was
unlikely to improve and that her continued interaction with the children was not in their best
interests.
We conclude that the trial court could have determined that Mother failed to show how
granting the extension would have been in the children’s best interests. The “clear preference is
to complete the process within the one-year period.” Id. (quoting In re A.J.M., 375 S.W.3d at
605). “Because the statutory language prefers finality to suit and because we cannot say the trial
court abused its discretion in denying [the] extension,” we overrule Mother’s point of error. Id.
(quoting In re A.J.M., 375 S.W.3d at 605).
IV. Any Error in Admitting Drug Test Results Was Rendered Harmless by
Substantially Similar Testimony Admitted Without Objection
We have previously decided that the drug test results were improperly admitted as
exhibits under the business-records exception in a parental-rights termination case because they
indicated a lack of trustworthiness where the affidavit 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.” In re K.C.P., 142 S.W.3d 574,
580 (Tex. App.—Texarkana 2004, no pet.). Relying on K.C.P., Mother argues that the trial court
erred in admitting the drug test results because the Department’s business record affidavit in this
case lacked the same information as the affidavit in K.C.P. The Department argues that any
error in admitting the drug test results was rendered harmless by substantially similar testimony
admitted without objection. We agree.
14
The Department’s petition was filed on March 4, 2020, and Stuart testified that the case
was assigned to her because mother had admitted to methamphetamine use. Without objection,
Stuart testified to the following drug test requests and results:
June 11th [Mother] didn’t go. June the 17th she went and it was negative and that
was a UA. July 13th she didn’t go. July 27th she went -- no, I’m sorry, July 27th
she didn’t go. I sent her for a hair/UA. August the 11th she went. She had -- hair
was positive for meth and her UA was negative. August the 24th she didn’t go.
September 11th she didn’t go. September 21st she went and it was a dilute
negative. October the 8th she went. It was negative UA, positive hair.
October 22nd she did not go. November 12th she did not go. November 30th her
UA was positive for meth. December 10th she was negative. December 28th she
was negative. January 13th her UA was negative and her hair was positive.
January 21st her UA was negative and she was sent twice in February, February
22nd and February 25th, and she didn’t go neither day.
Stuart also testified, without objection, that Mother admitted to using drugs when her test results
were positive.
A judgment may not be reversed “on the ground that the trial court made an error of law
unless the court of appeals concludes that the error complained of: (1) probably caused the
rendition of an improper judgment; or (2) probably prevented the appellant from properly
presenting the case to the court of appeals.” TEX. R. APP. P. 44.1(a). The general rule is “[e]rror
in the admission of testimony is deemed harmless and is waived if the objecting party
subsequently permits the same or similar evidence to be introduced without objection.” In re
K.R., No. 13-17-00281-CV, 2017 WL 4837850, at *5 (Tex. App.—Corpus Christi Oct. 26, 2017,
pet. denied) (mem. op.) (quoting Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex.
2004)). Because Stuart’s testimony contained substantially the same information that was shown
on the drug test results attached to the business records affidavit and Mother failed to object to
15
this testimony, we find that the admission of the drug test results was harmless. As a result, we
overrule Mother’s last point of error.
V. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens
Justice
Date Submitted: July 28, 2021
Date Decided: August 5, 2021
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