in the Interest of J.S., a Child

Opinion filed February 7, 2019
In The
Eleventh Court of Appeals
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No. 11-18-00213-CV
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IN THE INTEREST OF J.S., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 8866-CX
MEMORANDUM OPINION
The trial court entered an order in which it terminated the parental rights of
J.S.’s parents. The mother filed an appeal. On appeal, she complains of the
admission of two exhibits into evidence; those exhibits contain the results of drug
tests. We affirm.
In this case, the trial court found that Appellant had engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangered
the child’s physical or emotional well-being and that she had failed to comply with
the provisions of a court order that specifically established the actions necessary for
her to obtain the return of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E),
(O) (West Supp. 2018). The trial court also found that termination of Appellant’s
parental rights would be in the child’s best interest. See id. § 161.001(b)(2).
Appellant does not challenge those findings in this appeal.
In her sole issue on appeal, Appellant argues that the trial court abused its
discretion by failing to follow the “correct” standard for the admission of drug-test
results in a parental termination case. The drug-test results about which Appellant
complains were admitted into evidence as Exhibit Nos. 5 and 6. Exhibit No. 5
contains the results of Appellant’s drug tests, all of which were positive for
marihuana. Exhibit No. 6 contains the results of J.S.’s drug test, which also came
back positive for marihuana. The Department of Family and Protective Services
offered these exhibits into evidence as business records. See TEX. R. EVID. 803(6)
(providing that records of a regularly conducted business activity may be admissible
as an exception to the hearsay rule). The first page of each exhibit is an affidavit for
business records that was sworn to by Terri B. Holstead, as custodian of records for
Texas Alcohol & Drug Testing Service, Inc. See TEX. R. EVID. 902(10) (providing
that a business record accompanied by an appropriate affidavit is self-
authenticating).
Appellant asserts that Exhibit Nos. 5 and 6 should not have been admitted into
evidence because they lacked trustworthiness. Appellant points out that the tests
were performed at Quest Diagnostic’s lab in Lenexa, Kansas, and that the tests were
not performed by Texas Alcohol & Drug Testing Service, Inc.: the company in
Houston, Texas, whose custodian of records signed the business records affidavit.
Appellant also argues that the standard that applies in criminal cases with respect to
the admissibility of drug-test results applies in parental termination cases. She relies
on In re K.C.P., 142 S.W.3d 574, 580 (Tex. App.—Texarkana 2004, no pet.); In re
A.D.H.–G., No. 12-16-00001-CV, 2016 WL 3182610, at *5–6 (Tex. App.—Tyler
June 8, 2016, no pet.) (mem. op.); and the authorities cited therein to support her
contention.
2
Assuming that Appellant is correct in her contention that the trial court abused
its discretion in admitting the exhibits, we hold—as did the courts of appeals in
A.D.H.–G and K.C.P.—that any error in the admission of the drug-test results was
harmless. See A.D.H.–G., 2016 WL 3182610, at *6; K.C.P., 142 S.W.3d at 580–81;
see also TEX. R. APP. P. 44.1(a)(1) (judgment may not be reversed unless the error
probably caused the rendition of an improper judgment). Other evidence at trial
indicated that Appellant no-showed nine times for drug testing while this case was
pending, and Appellant admitted that she had attempted to cheat on a hair follicle
drug test by using a wig. Furthermore, one of Appellant’s other children, a young
child that had previously been removed from Appellant’s care by the Department
but had been placed back in Appellant’s care for a monitored return, tested positive
for marihuana while in Appellant’s care during the monitored return. That child’s
positive drug test precipitated the removal of J.S., who was an infant at the time. We
note that, to support a finding that Appellant endangered J.S., Appellant’s offending
conduct did not have to be directed at J.S., nor did J.S. actually have to suffer an
injury. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Because we conclude
that any error in the admission of Exhibit Nos. 5 and 6 was harmless, we overrule
Appellant’s sole issue on appeal.
We affirm the trial court’s order of termination.
February 7, 2019 JIM R. WRIGHT
Panel consists of: Bailey, C.J., SENIOR CHIEF JUSTICE
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3