In the Interest of E.A.G.C. v. the State of Texas ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-24-00322-CV
IN THE INTEREST OF E.A.G.C.
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2022PA01121
Honorable Monique Diaz, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Luz Elena D. Chapa, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: October 30, 2024
AFFIRMED
Melissa G. appeals from the trial court’s order terminating her parental rights to her two-
year-old daughter E.A.G.C. 1 On appeal, she argues the evidence is legally and factually
insufficient to support the trial court’s findings under section 161.001(b)(1)(D), (E), and (P). She
further argues that the trial court erred in appointing the Department of Family and Protective
Services as permanent managing conservator of E.A.G.C. We affirm.
1
To protect the identity of the minor child, we refer to the child and the parties by fictitious names, initials, or aliases.
See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
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STANDARD OF REVIEW
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the
Department has the burden to prove by clear and convincing evidence that parental rights should
be terminated pursuant to one of the predicate grounds in subsection 161.001(b)(1) and that
termination of parental rights is in the best interest of the child. TEX. FAM. CODE § 161.001(b)(1),
(2). In reviewing the legal sufficiency of the evidence to support these findings, we look “at all the
evidence in the light most favorable to the finding to determine whether a reasonable trier of fact
could have formed a firm belief or conviction that its finding was true.” In re J.O.A., 283 S.W.3d
336, 344 (Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). In reviewing the
factual sufficiency of the evidence, we consider disputed or conflicting evidence. Id. at 345. “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). Under these standards, the factfinder is the sole judge of the weight and
credibility of the evidence. Id.
SUBSECTIONS (D) AND (E)
Subsection (D) allows termination of parental rights if, along with a best-interest finding,
the factfinder finds by clear and convincing evidence that the parent “knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which endanger the physical
or emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(D). “A child is endangered
when the environment creates a potential for danger that the parent is aware of but consciously
disregards.” In re C.J.G., No. 04-19-00237-CV, 2019 WL 5580253, at *2 (Tex. App.—San
Antonio Oct. 30, 2019, no pet.) (quoting In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston
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[14th Dist.] 2014, pet. denied)). Subsection (E) allows termination of parental rights if the trial
court finds by clear and convincing evidence that the parent “engaged in conduct or knowingly
placed the child with persons who engaged in conduct which endangers the physical or emotional
well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(E). Under subsection (E), the trial court
must determine “whether there is evidence that a parent’s acts, omissions, or failures to act
endangered the child’s physical or emotional well-being.” In re C.J.G., 2019 WL 5580253, at *2.
Under both subsections (D) and (E), “endanger” means “to expose a child to loss or injury,
or to jeopardize a child’s emotional or mental health.” Id. at *3 (citing In re M.C., 917 S.W.2d
268, 269 (Tex. 1996)). “[A] parent need not know for certain that the child is in an endangering
environment; awareness of such a potential is sufficient.” Id. at *2 (quoting In re R.S.-T., 522
S.W.3d 92, 109 (Tex. App.—San Antonio 2017, no pet.)) (alteration in original). “Under
subsection (D), a trial court considers ‘evidence related to the environment of the children to
determine if the environment was the source of endangerment to the children’s physical or
emotional well-being.’” In re J.A.B., No. 04-23-00907-CV, 2024 WL 1421986, at *2 (Tex. App.—
San Antonio Apr. 3, 2024, pet. denied) (quoting In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—
Fort Worth 2003, no pet.)). “Conduct of a parent in the home can create an environment that
endangers the physical and emotional well-being of a child.” Id. (quoting In re J.T.G., 121 S.W.3d
at 125). “For example, abusive or violent conduct by a parent or other resident of a child’s home
may produce an environment that endangers the physical or emotional well-being of a child.” Id.
(quoting In re J.T.G., 121 S.W.3d at 125). “Parental and caregiver illegal drug use and drug-related
criminal activity likewise supports the conclusion that the children’s surroundings endanger their
physical or emotional well-being.” Id. (quoting In re J.T.G., 121 S.W.3d at 125). “Similarly, under
subsection (E), ‘[a]n endangerment finding often involves physical endangerment, but the statute
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does not require that the parent’s conduct be directed at the child or that the child suffer actual
injury.’” Id. (quoting In re K.J.G., No. 04-19-00102-CV, 2019 WL 3937278, at *5 (Tex. App.—
San Antonio Aug. 21, 2019, pet. denied)) (alteration in original). “Rather, the specific danger to
the child’s well-being may be inferred from the parent’s misconduct alone.” Id. (quoting In re
K.J.G., 2019 WL 3937278, at *5). “Conduct that subjects a child to a life of uncertainty and
instability endangers the physical and emotional well-being of a child.” Id. (quoting In re K.J.G.,
2019 WL 3937278, at *5). “Thus, evidence of illegal drug use by a parent and its effect on a
parent’s life and her ability to parent may establish an endangering course of conduct under
subsection (E).” Id. (quoting In re K.J.G., 2019 WL 3937278, at *5).
“While ‘endanger’ has the same definition under both subsections (D) and (E), ‘there are
some distinctions in the application of subsections (D) and (E).’” Id. at *3 (quoting In re C.J.G.,
2019 WL 5580253, at *3). “Termination under subsection D may be based upon a single act or
omission.” Id. “In contrast, termination under subsection E ‘may not rest on a single act or
omission; it must be a voluntary, deliberate, and conscious course of conduct.’” Id. (quoting In re
C.J.G., 2019 WL 5580253, at *3). Additionally, “[i]n evaluating endangerment under subsection
D, we consider the child’s environment before the Department obtained custody of the child.” In
re C.J.G., 2019 WL 5580253, at *3 (quoting In re S.R., 452 S.W.3d at 360) (emphasis added).
“Under subsection E, however, courts may consider conduct both before and after the Department
removed the child from the home.” Id. (quoting In re S.R., 452 S.W.3d at 360) (emphasis added).
The supreme court has explained that “the endangering conduct may include the parent’s
actions before the child’s birth, while the parent had custody of older children, including evidence
of drug usage.” In re J.O.A., 283 S.W.3d at 345. Thus, “a parent’s use of narcotics and its effect
on his or her ability to parent may qualify as an endangering course of conduct.” Id. “While illegal
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drug use alone may not be sufficient to show endangerment, a pattern of drug use accompanied by
circumstances that indicate related dangers to the child can establish a substantial risk of harm.”
In re R.R.A., 687 S.W.3d 269, 278 (Tex. 2024) (emphasis in original). “A reviewing court should
not evaluate drug-use evidence in isolation; rather, it should consider additional evidence that a
factfinder could reasonably credit that demonstrates that illegal drug use presents a risk to the
parent’s ‘ability to parent.’” Id. (quoting In re J.O.A., 283 S.W.3d at 345).
Here, there was evidence presented from which the trial court could conclude Melissa F.
had a pattern of illegal drug use, both before and after removal of E.A.G.C., that presented a risk
to her ability to parent. Department caseworker Leah Jarma testified Melissa F. had a history of
substance abuse in two previous cases involving Melissa F.’s other children. Prior to E.A.G.C.’s
removal, Melissa F.’s parental rights had been terminated with respect to a fifteen-year-old son
and a seven-year-old son. According to Jarma, with respect to the two prior terminations, Melissa
F. said “she had completed some of her services. However, she admitted to relapsing prior to the
ter—terminations happening.”
Indeed, Melissa F. testified that E.A.G.C. was her third child and that her rights to her two
other children had been terminated. According to Melissa F., she had completed her service plan
for her oldest child and was supposed to be reunified when Melissa F.’s sister died. Melissa F. said
that as a result of her sister’s death, she “lost it” and relapsed. With respect to her second child,
Melissa F. admitted that she had been “using while [she] was pregnant” and that both she and her
child tested positive for illegal drugs at the birth of her second child. Melissa F. testified that she
had been “tricked” into signing her rights away to this second child, stating that she had completed
all her services when a new caseworker said she had not. According to Melissa F., the Department
“used my—my ex-husband for shooting and killing my dad against me to terminate my rights to
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my daughter.” Melissa F. testified she “was clean at that time” and that her “lawyer tricked [her]
into signing [her] rights by telling [her] if [she] had another kid, CPS was going to take them
away.”
Jarma testified that Melissa F.’s “drug use was the main concern. She was caring for
[E.A.G.C.] while she was using substances.” When Jarma interviewed Melissa F., Melissa F. said
it had been something she had been struggling with for a long time. She has periods
of her life where she could stay clean, but there were periods where she would
experience stressors and relapse. And she was in current relapse at that time and
was using when [E.A.G.C.] was removed.
Jarma testified that Melissa F. said her drug of choice was methamphetamine. During her
testimony, Melissa F. testified that she told Jarma her drug of choice was heroin.
E.A.G.C. was removed in July 2022 when she was six months old. Melissa F. testified that
E.A.G.C. was in her care for six months and that during that time, she had placed E.A.G.C. with
her mom at various times. Melissa F. testified, “[E.A.G.C.] was back and forth with me and my
mom, because I was—when I was using, I was staying at my mom’s.” Melissa F. testified that at
the time E.A.G.C. was removed, she had relapsed and her probation officer was helping her get
into the methadone program. According to Melissa F., her relapse is what led to E.A.G.C. being
removed by the Department.
Jarma testified that in September 2022, results of Melissa F.’s hair follicle test showed that
“she had used within the last month of that test.” Jarma testified that Melissa F. “was doing a drug
treatment program with parole, so she was doing individual and group counseling for drug
treatment.” Melissa F. was also in “a medication-assisted treatment program, more commonly
known as a methadone clinic.” Melissa F.’s drug tests were consistent with her being on
methadone.
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Department supervisor Tamatha Burnett testified that when Jarma was Melissa F.’s
caseworker, the Department’s goal was family reunification because Melissa F. was making
progress. According to Burnett, the Department’s goal changed to termination when Melissa F.’s
drug tests started to come back positive. Burnett testified that termination was in E.A.G.C.’s best
interest because of Melissa F.’s pattern of substance abuse:
The history of Ms. Melissa’s involvement with the agency, and all those [prior]
cases have been drug related. She has completed the majority of her services on
each one of those cases and it’s a pattern. This—this would be a pattern for her and
so that’s concerning.
Plaintiff’s Exhibit 5, which was admitted into evidence, contains Melissa F.’s drug test
results from various days. A hair follicle taken from Melissa F. on December 23, 2022 was positive
for amphetamine, methamphetamine, and opiates (morphine). It contained a notation that the
certified medical review officer’s “DETERMINATION/VERIFICATION IS: POSITIVE UNTIL
FURTHER VERIFICATION OF PRESCRIPTIONS.” A hair follicle taken from Melissa F. on
April 24, 2023 was positive for amphetamine and methamphetamine. The certified medical review
officer’s “DETERMINATION/VERIFICATION IS: POSITIVE UNTIL FURTHER
VERIFICATION OF PRESCRIPTIONS.” A hair follicle taken from Melissa F. on September 1,
2023, was positive for methamphetamine. The certified medical review officer’s
“DETERMINATION/VERIFICATION IS: POSITIVE.” A hair follicle taken from Melissa F. on
November 1, 2023, was positive for methamphetamine. The certified medical review officer’s
“DETERMINATION/VERIFICATION IS: POSITIVE.”
Burnett testified that when asked what caused these positive drug tests, Melissa F. said her
psychotropic prescription medications were causing the positive results. According to Melissa F.,
since January 25, 2023, she had been taking Fluoxetine. Since June 5, 2023, she had been taking
Alprazolam, Venlafaxine, Aripiprazole, and Trazadone. Burnett testified that she then contacted
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the Department’s substance abuse person and asked whether Melissa F.’s prescription medications
could cause the positive test results and determined the medications were not the cause.
Sherrell Gibbs, a substance use program specialist with the Department, testified that her
“day-to-day activities consist of assisting the field, specifically CPS field workers, to assess the
clients’ substance use issues, and interpret drug test results.” She acts as a liaison between health
and human services and treatment providers. She was qualified as an expert witness “in the area
of the ability to determine drug test results and interpret levels and interpret the results of whether
they could be from a valid prescription or just from illegal” substances. Gibbs testified she was
familiar with the psychotropic medications prescribed to Melissa F. According to Gibbs, none of
those prescribed medications would result in a positive methamphetamine drug test. Gibbs
explained that there were three prescription medications that would produce a positive
methamphetamine result: one with a brand name of “Digoxin,” one called
“Levomethamphetamine,” and one called “Benzphatamine.” Gibbs testified that other than those
three prescription medications, any positive methamphetamine result would be caused by “[i]Illicit
methamphetamine[].” From this testimony, the trial court could reasonably conclude that because
Melissa F. was not prescribed Digoxin, Levomethamphetamine, or Benzphatamine, her positive
results for methamphetamine were caused by illegal methamphetamine use.
Gibbs then continued to discuss Melissa F.’s drug test results. Gibbs was asked whether
she could determine if a positive result was from “illicit drugs” or prescribed drugs. Gibbs testified
that when there is a methamphetamine positive result “and the client disputes it,” the Department
then does “isomer testing.” Gibbs explained that methamphetamine “has two isomers”: “a
D/Isomer, dextro-methamphetamine[], and an L/Isomer, level-methamphetamine[].” The sample
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in question is “retested at the lab to break down what has caused the positive.” Gibbs was asked
whether “an isomer test done in this particular case.” Gibb replied, “Yes, there was.”
Gibbs explained that the first test at the “collection site” is performed by Texas Alcohol
and Drug Testing Service. According to Gibbs, the first result can determine whether
methamphetamine was ingested. To confirm the results with an isomer test, the sample is sent to
Quest. The “D/L Isomer test will [determine] whether it is illicit versus prescription.” In looking
at Melissa F.’s methamphetamine and amphetamine positive results for a hair follicle collected on
December 23, 2022, Gibbs testified the first test and the second isomer test had the same results.
Similarly, when asked to look at positive methamphetamine and amphetamine results for a
specimen collected on April 24, 2023, Gibbs testified her interpretation of the first report by Texas
Alcohol was “[t]hat methamphetamine was used.” She further testified that when the second Quest
isomer test was done, the results were the same as the first test. Gibbs was then asked about a
positive methamphetamine result for a hair follicle collected on September 1, 2023. Gibbs
concluded from the result that because only methamphetamine was present, the positive result was
either “due to exposure, the client was either in an environment where methamphetamine[] was
present on a daily basis and its—the environment is contaminated, or that methamphetamine[] was
ingested but the amphetamine[] level went below the threshold of the 500 cutoff mark.” The
methamphetamine result for the September 1, 2023 hair follicle was 19886 pg/mg. Gibbs was
asked whether she would expect to have a methamphetamine positive result of the levels of 19886
if it was an isolated incident. Gibbs replied, “The environment would have to be significantly
contaminated and be in that environment on a day-to-day basis—a daily living environment.”
Gibbs then testified about a sample collected from Melissa F. on December 26, 2023. She
testified that an isomer test was conducted on this hair follicle sample and that “[t]he test result
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showed a D and an L Isomer. The D was at the 90 percent and L was at 9 which would indicate
methamphetamine[].” Gibbs again testified that the only prescription drugs that could give this
result are Digoxin, Levomethamphetamine, and Benzphetamine.
Gibbs further testified about hair follicle tests, explaining that the ends of the hair follicle
are not tested. Instead, the hair follicle is collected an inch and a half from the scalp and that inch
and a half is tested. According to Gibbs, the hair an inch and a half from the scalp gives a timeframe
for the past ninety days. Gibbs testified that hair follicle tests “can detect the use as early as fourteen
days after the use has occurred.” Gibbs was asked, hypothetically, about a client who stopped
taking a prescribed medication in March 2023. Would that medication show up on a hair follicle
test conducted in December 2023? Gibbs replied that it would not because the hair follicle test
would capture only the previous ninety days, or “from December back to September.”
In looking at all this evidence in the light most favorable to the trial court’s findings, the
trial court could have reasonably formed a firm belief or conviction that even before E.A.G.C. was
removed, Melissa F. had a pattern of illegal drug use, a pattern that had previously led to the
termination of her rights to two previous children, which contributed to an environment that
endangered E.A.G.C. See In re J.A.B., 2024 WL 1421986, at *2. We therefore hold the evidence
is legally sufficient to support the trial court’s finding under subsection (D). Similarly, with regard
to factual sufficiency, we conclude that in considering the entire record, the disputed evidence that
a reasonable factfinder could not have credited in favor of the finding was not so significant that
the trial court could not reasonably have formed a firm belief or conviction under subsection (D).
See In re J.O.A., 283 S.W.3d at 345. Therefore, we hold the evidence is also factually sufficient to
support the trial court’s finding under subsection (D).
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With regard to subsection (E), we conclude that in looking at all this evidence in the light
most favorable to the trial court’s findings, the trial court could have reasonably formed a firm
belief or conviction that before and after the time E.A.G.C. was removed, Melissa F. had a pattern
of illegal drug use, a pattern that had previously led to the termination of her rights to two previous
children, which endangered E.A.G.C.’s physical or emotional well-being under subsection (E).
See In re J.A.B., 2024 WL 1421986, at *2 Therefore, we hold the evidence is legally sufficient to
support the trial court’s findings under subsection (E).
Melissa F. argues that the finding under subsection (E) is factually sufficient by arguing
that Gibbs’s testimony was not sufficiently specific and by pointing to evidence that Melissa F.
had not relapsed during the pendency of this case. As explained above in detail, Gibbs’s testimony
was sufficient for the trial court to reasonably conclude that Melissa F.’s hair follicle positive test
results were a result of illicit drug use and not because of prescription use. As for her second point,
Melissa F. testified she believes her positive results were caused by her prescription medications.
Christopher Lopez, a program director and addiction counselor at New Season San Antonio
Treatment Center, testified Melissa F. had perfect attendance in the program and her last positive
urine drug screen was on February 15, 2023 for opioids. He testified Melissa F.’s urine drug tests
with Cordant, a lab used by New Season San Antonio Treatment Center, had been negative since
February 15, 2023. In considering this evidence, however, we note that the trial court, as factfinder,
is the sole judge of the weight and credibility of the evidence. See In re J.O.A., 283 S.W.3d at 345.
Thus, the trial court could have found it significant that the Cordant testing results relied on by
Melissa F. were urine drug tests and not hair follicle tests. The trial court could have concluded
that the follicle screening as explained by Gibbs was more accurate of detecting drug use. The trial
court also could have not found Melissa F. to be a credible witness. Therefore, in looking at all the
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evidence, including the disputed or conflicting evidence, we hold the evidence was factually
sufficient to support the trial court’s finding under subsection (E). 2
CONSERVATORSHIP
Melissa F. further argues that the trial court abused its discretion by appointing a nonparent
as managing conservator. An order terminating the parent-child relationship divests the parent and
the children of all legal rights and duties with respect to each other. TEX. FAM. CODE § 161.206(b).
Because we have overruled Melissa F.’s complaints about the parts of the judgment terminating
her parental rights, Melissa F. has been divested of her legal rights and duties related to E.A.G.C.
See In re A.K.B., No. 04-23-00154-CV, 2024 WL 3056663, at *27 (Tex. App.—San Antonio June
20, 2024, no pet.) (citing TEX. FAM. CODE § 161.206(b)). Accordingly, Melissa F. lacks standing
to challenge the portion of the judgment appointing the Department as E.A.G.C.’s managing
conservator. See id.; In re R.J., 579 S.W.3d 97, 120-21 (Tex. App.—Houston [1st Dist.] 2019, pet.
denied) (holding father did not have standing to challenge the portion of the judgment appointing
a conservator for the child after overruling father’s challenge to the portion of the judgment
terminating his parental rights); E.A. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-15-00811-
CV, 2016 WL 1639847, at *4 (Tex. App.—Austin Apr. 21, 2016, pet. denied) (affirming judgment
terminating parental rights and holding that parents, who had been divested of their legal rights to
child, could not challenge conservatorship determination).
2
Having determined there is legally and factually sufficient evidence to support the trial court’s findings under
subsections (D) and (E), we need not consider Melissa F.’s argument that there was legally and factually insufficient
evidence to support the trial court’s finding under subsection (P). See In re D.J.H., 381 S.W.3d 606, 611-12 (Tex.
App.—San Antonio 2012, no pet.) (explaining that when the trial court terminates the parent-child relationship on
multiple grounds under section 161.001(1), we may affirm on any one ground because, in addition to finding that
termination is in the child’s best interest, only one predicate violation under section 161.001(1) is necessary to support
a termination decree).
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COUNSEL COMPENSATION
Finally, Melissa F.’s appointed appellate counsel “requests that this court order that he be
compensated for his services in excess of the maximum out-of-court hours allowed in the Joint
Order Adopting Ad Litem Fee Schedule.” Melissa F.’s appointed counsel does not cite any legal
authority that would allow this court to issue such an order, and we decline to do so.
CONCLUSION
For the reasons stated above, the trial court’s order terminating Melissa F.’s parental rights
is affirmed.
Liza A. Rodriguez, Justice
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