In the Interest of C.R.

263 S.W.3d 368, 2008 Tex. App. LEXIS 3269
CourtCourt of Appeals of Texas
DecidedMay 7, 2008
DocketNo. 05-07-00503-CV
StatusPublished
Cited by106 cases

This text of 263 S.W.3d 368 (In the Interest of C.R.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of C.R., 263 S.W.3d 368, 2008 Tex. App. LEXIS 3269 (Tex. Ct. App. 2008).

Opinion

OPINION

Opinion by

Chief Justice THOMAS.

Following a bench trial, the trial court terminated Ruby Davis’s parental rights to C.R. On appeal, Davis challenges the trial court’s judgment, contending the trial court erred in admitting Davis’s drug test results and the evidence is legally and factually insufficient to support the trial court’s termination order. We affirm.

Background

C.R. was born to Davis and Phillip Riddle on February 3, 1998. Both Riddle and Davis used “pseudoephedrine 60” or a “controlled substance” after C.R. was born. Davis obtained the drugs from Riddle, who owned a drug paraphernalia store.

In 2001, Davis and Riddle separated, and Davis and C.R. began living with Davis’s mother in Royse City. Davis’s mother is legally blind and has cancer. On March 9, 2006, Michelle Chanslor from the Texas Department of Family and Protective Services (the Department) responded to a complaint that Davis had left C.R. with his grandmother and C.R. was not being adequately supervised. Although C.R. was not removed from the home in response to the complaint, Chanslor requested that Davis take a drug test.

On March 28, 2006, the Department removed C.R. from Davis’s home. Davis admitted she failed the drug test due to using methamphetamine and believed C.R. was removed because she failed the test. Following the removal, the trial court ordered Davis to participate in parenting classes, visit C.R. once per week, and undergo a psychological evaluation, counseling, a drug assessment, and random drug testing. Although the Department initially planned to return C.R. to Davis, it subsequently sought to terminate Davis’s paren[370]*370tal rights.1 After a bench trial, the trial court terminated Davis’s parental rights under sections 161.001(1)(E) and (0) of the Texas Family Code and named the Department C.R.’s sole managing conservator. Davis appealed.

Admission of Drug Test Results

In her first point of error, Davis contends the trial court erred in admitting Davis’s drug test results because the sponsoring witness was not qualified to give an expert opinion and the test results were not the business records of the lab that collected the test samples. The trial court’s evidentiary rulings will not be overturned absent an abuse of discretion. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007) (per cu-riam). To be entitled to reversal due to the erroneous admission of evidence, an appellant must not only show the trial court erred in admitting the evidence, but that the error was reasonably calculated to cause and probably did cause the rendition of an improper verdict. Tex.R.App. P. 44.1; McShane, 239 S.W.3d at 234. “We review the entire record and require the complaining party to demonstrate that the judgment turns on the particular evidence admitted.” McShane, 239 S.W.3d at 234.

The trial court admitted the drug test results for the limited purpose of establishing Davis’s and the Department’s states of mind. Accordingly, the evidence showed only that Davis and the Department were working on the premise Davis failed a drug test. The record does not reflect the trial court relied on the test results to establish Davis failed the test or was using illegal drugs. See Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 410 (Tex.App.-Amarillo 2003, pet. denied) (“It is clear that when a dispute is tried to the court, as opposed to a jury, we presume that the trial judge disregarded inadmissible testimony, unless the record discloses otherwise.”).

Further, there was extensive evidence of Davis’s use of illegal drugs. Davis admitted she had used a “controlled substance” or pseudoephedrine 60 since 1994. She admitted to criminal charges in 1994 for which she received a “deferred” and that she was incarcerated in Oklahoma in 2001 due to the possession of a controlled substance. Davis admitted she failed a drug test due to using methamphetamine and believed C.R. was removed because she failed the test. In May 2006, Davis told Randel Rubenstein, a licensed chemical dependency counselor who performed a substance abuse evaluation of Davis, that she had used methamphetamine consistently, and sometimes heavily, for several years. Davis also failed to take seven of nine requested drug tests, allowing the trial court to infer the test results would be positive, In re J.T.G., 121 S.W.3d 117, 131 (Tex.App.-Fort Worth 2003, no pet.), and told Debra Pendergrass, a caseworker for the Department, that one of the requested tests would be positive. Finally, Davis invoked her rights under the Fifth Amendment to the United States Constitution when questioned about a friend who purchased drugs for Davis less than two months prior to the termination trial, again allowing the trial court to infer Davis continued to use illegal drugs after C.R. was removed. In re C.J.F., 134 S.W.3d 343, 352-53 (Tex.App.-Amarillo 2003, pet. denied) (“Refusal to answer questions by asserting the privilege is relevant evidence from which the finder of fact in a civil action may draw whatever inference is reasonable under the circumstances.”). Because the actual drug test results, even if considered by the trial court for the truth [371]*371of the matter, were cumulative of other evidence Davis used illegal drugs, any error by the trial court in admitting the results was harmless. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex.2004) (“Clearly, erroneous admission is harmless if it is merely cumulative.”). We overrule Davis’s first point of error.

Termination of Parental Rights

In points of error two through five, Davis contends the evidence is legally and factually insufficient to support the trial court’s finding Davis’s parental rights should be terminated and termination is in the best interest of C.R.

A. Standard of Review

A trial court may terminate the parent-child relationship if the fact finder finds by clear and convincing evidence (1) a parent committed one or more of the enumerated statutory acts in section 161.001(1) of the family code, and (2) termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001(1) (Vernon Supp.2007). Clear and convincing evidence is “the measure or 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.” Tex. Fam.Code Ann. § 101.007 (Vernon 2002); see In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). On appeal, we apply a standard of review that reflects this burden of proof. In re J.F.C., 96 S.W.3d at 264-66.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Baby Girl H., a Child v. the State of Texas
Court of Appeals of Texas, 2023
in the Interest of A.R. Jr.
Court of Appeals of Texas, 2023
in the Interest of P.W. and E.W., Children
Court of Appeals of Texas, 2023
in the Interest of A.O. and C.O., Children
Court of Appeals of Texas, 2022
in the Interest of E.C.R. and K.F., Children
Court of Appeals of Texas, 2021
in the Interest of E. S., a Child
Court of Appeals of Texas, 2021
in the Interest of S.B. and K.B., Children
Court of Appeals of Texas, 2021
in the Interest of S.R.L., a Child
Court of Appeals of Texas, 2020

Cite This Page — Counsel Stack

Bluebook (online)
263 S.W.3d 368, 2008 Tex. App. LEXIS 3269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-cr-texapp-2008.