E. E. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00282-CV
E. E., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 299,334-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING
DISSENTING OPINION
Although I agree with the legal sufficiency review performed by the Court, I
respectfully disagree with the factual sufficiency. Accordingly, I dissent from the Court’s opinion
and judgment.
In this case, the trial court was not confronted with a situation in which a parent
simply tested positive for illegal drug use; on the contrary, evidence was presented establishing
that Mother and Son both tested positive for amphetamines shortly after Son was born and that
Mother admitted to using illegal drugs while pregnant with Son. As the Court points out in its
Background section, Mother admittedly used illegal drugs “two to three days prior to coming in
for delivery.”
Unlike for simple drug use, the legislature has specifically addressed
circumstances like these and determined that consuming illegal drugs while pregnant in an
amount sufficient to show up in testing performed on the baby to be an act so serious as to
qualify as a ground for termination on its own accord. See Tex. Fam. Code § 161.001(a),
(b)(1)(R) (explaining that parental rights may be terminated if parent caused child to be born
addicted to controlled substance and that child being born addicted to controlled substance
is evidenced by being born to mother who used controlled substance and “exhibit[ing] the
demonstrable presence of . . . a controlled substance in the child’s bodily fluids”); see also
In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (providing that evidence pertaining to statutory ground
for termination may also be probative of best-interest prong). In addition to the evidence
establishing this type of behavior, other evidence showed that Mother tested positive for illegal
drug use multiple times through the pendency of this case, missed multiple drug tests, and had a
negative diluted test.
The Court correctly highlights in its sufficiency analysis that Mother had shown
improvement, been drug-free for a significant period of time, and completed most of the services
required by the Department. However, given the very concerning nature of Mother’s conduct
while pregnant and her continued drug use after giving birth to Son, I cannot agree with the
Court’s determination that weighing the disputed evidence contrary to the trial court’s best-
interest determination against the evidence favoring that determination leads to a conclusion that
the court could not have formed a firm belief that termination of Mother’s parental rights was in
the best interest of the children. See In re S.S., No. 04-18-00325-CV, 2018 WL 6182852, at *6
(Tex. App.—San Antonio Nov. 28, 2018, no pet.) (mem. op.) (determining that evidence was
sufficient to support termination order where evidence showed, among other things, that mother
used drugs before and after children’s birth and that mother tested positive for drugs on more
than one occasion during pendency of case).
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For these reasons, I respectfully dissent from the Court’s opinion and judgment.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Smith
Filed: October 29, 2021
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