In the Interest of J.S., a Child v. the State of Texas

Opinion

Affirm and Opinion Filed September 6, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00898-CV

IN THE INTEREST OF J.S., A CHILD

On Appeal from the County Court at Law No. 1 Kaufman County, Texas Trial Court Cause No. 104418-CC

OPINION ON REMAND Before Justices Partida-Kipness, Carlyle, and Breedlove1 Opinion by Justice Breedlove Mother appeals the trial court’s judgment terminating her parental rights to

J.S. On original submission, this Court concluded that the trial court lost jurisdiction

when it failed to make a finding of “extraordinary circumstances” required by

section 263.401 of the Texas Family Code to extend the automatic dismissal

deadline.2 The Texas Supreme Court, however, reversed and concluded that section

263.401’s requirements were mandatory rather than jurisdictional. In re J.S., 670

1 Justice Lana Myers was a member of the panel at the time the case was submitted. Justice Myers has now retired. Justice Maricela Breedlove has succeeded Justice Myers as a member of the panel and has reviewed the briefs and record. 2 In re J.S., 663 S.W.3d 784, 786 (Tex. App.—Dallas 2022), rev’d, 670 S.W.3d 591 (Tex. 2023). S.W.3d 591, 606 (Tex. 2023). The court remanded the case for us to consider

Mother’s appellate issues. Id.

We now consider whether there was legally and factually sufficient evidence

to support termination of Mother’s parental rights to J.S. under family code

subsections 161.001(b)(1)(D), (E), and (O), and to support the jury’s findings that

termination of Mother’s parental rights was in J.S.’s best interest. We also consider

whether the trial court abused its discretion by admitting certain exhibits into

evidence. We conclude the evidence was sufficient to support the jury’s findings and

the trial court’s judgment. We further conclude the trial court did not abuse its

discretion in its evidentiary rulings. Accordingly, we affirm the trial court’s

judgment terminating Mother’s parental rights to J.S.

BACKGROUND

Two days after J.S. was born in December 2018, the Texas Department of

Family and Protective Services (Department) received a report of abuse or neglect

by Mother, who had tested positive for methamphetamines at a prenatal visit. In re

J.S., 670 S.W.3d at 594. Although both Mother and J.S. tested negative at J.S.’s

birth, both of J.S.’s parents have a significant history of drug use and had previously

lost custody of another child due to their drug use. Id. While Mother was in the

hospital, the Department proposed placing J.S. with Mother’s grandmother

(Grandmother), and Mother agreed. The Department was aware of Mother’s

–2– methamphetamine use and her history of substance abuse, and it was concerned

about her taking J.S. home.

In August 2019, J.S.’s parents were ordered to complete services through the

Department, including substance abuse and psychological assessments, parenting

classes, and random drug testing. Id. From August 2019 until February 2020, J.S.’s

parents refused to participate in those court-ordered services despite many reminders

and encouragements to do so from the Department’s caseworker. Id.

In December 2019, Mother stated she wanted Grandmother to be J.S.’s legal

guardian. The Department arranged for a home study on a home Grandmother

planned to move into with J.S. The Department determined the home was not

suitable and it would be dangerous for J.S. to reside there.3

At the end of one year of the parents’ refusal to participate in services and the

fact that Grandmother’s home would no longer be suitable, the Department sought

3 Cassie McCray, a Family Based Safety Service worker who testified at trial, later obtained access to the house and described it: I observed the outside of the home to have trash and miscellaneous items out. There was a space heater in one of the rooms. Also, there was electrical outlets that were hanging from the wall. There were also, like, a phone charger that was holding the door closed and there was also—it looked as if it was the aftermath of a fire that was in the kitchen area of the wall where the stove was. Also, there was old, standing water that was in one of the bathrooms. In one room, the window was missing. There were cigarette butts on the floor. Some of the light switches were taped to the wall. There was a plastic bag that was hanging over the ceiling in one bedroom. In the hallway, one of the bathrooms, like I said, it looked like it had not been utilized and it had old, standing water in the sink. McCray testified that the contractor performing the home study notified her of “concerns of the environment for the child, it being unsafe.”

–3– a court order to remove J.S. and to place him in foster care. On February 4, 2020,

the Department filed its initial petition to remove J.S. from Mother and Father’s

custody, terminate their parental rights, and appoint the Department as J.S.’s

permanent sole managing conservator. Id. The trial court signed temporary orders

the same day appointing the Department as temporary managing conservator, and

the Department then took possession of J.S., who required urgent treatment for an

ear infection. Id. The day after J.S. came into the Department’s custody, his hair

follicle4 sample tested positive for methamphetamines and marijuana, with the

methamphetamine test recording more than thirteen times the level needed to obtain

a positive result. Id. J.S. also showed symptoms of withdrawal from

methamphetamine, including sores on his face and itchy skin. Erika Anderson, the

Department’s caseworker who testified at trial, described J.S. as “wanting to come

out of his skin.” She also testified that J.S. would scream when put into water.

Anderson testified J.S. was developmentally delayed for a thirteen-month-old

child when he came into the Department’s conservatorship and that he exhibited

behaviors that were not normal for a child his age. He had no words. He would not

respond to his name. He would not make eye contact or reach for objects. He would

not cry when he was hungry or when his diaper needed changing. He had a flat affect,

no emotion. The foster parents got J.S. into the Green Apple program, which is for

4 In this opinion, we refer to hair strand testing in the layman’s terms used by the witnesses and in the relevant case law, not in scientific terms. –4– children suffering trauma and exposure to controlled-substance abuse. With speech,

occupational, and physical therapy, J.S. improved. At the time of trial in June 2021,

J.S. had been in a foster-to-adopt home for six months and had improved

substantially since being removed from the custody of his parents. Id.

Although J.S. improved, the parents did not. Mother and Father received a

family service plan, which the trial court incorporated into court orders. The plan

required the parents to lead a drug-free lifestyle, not cut or dye their hair, not live

with or care for any children under the age of 18 years old, submit to random drug

tests, make a written acknowledgement of any recent illegal substance use, obtain

individual counseling, complete parenting classes, obtain a psychological

evaluation, obtain mental health services, initiate inpatient drug treatment, and

attend AA/NA meetings.

Except for one drug test and two written acknowledgements of

methamphetamine use, one on February 19, 2020 and another on March 1, 2020,

Mother participated in none of the services. She told the caseworkers that

transportation was a problem and that there was no public transportation where she

lived. Anderson testified the Department provided Mother with information and

vouchers for transportation, but Mother did not use them. Anderson also testified

that she offered to personally transport Mother to drug testing, but Mother refused.

Mother then did not go to drug testing. Mother also dyed her hair in violation of the

court’s order that prohibited her from doing so.

–5– A visitation schedule was prepared, but the parents were sporadic in following

it. They sometimes arrived for the visits after having used methamphetamine. After

they kissed J.S., he would get red bumps on his face. Due to the COVID pandemic,

the visits moved online, and the parents missed some visits. They appeared to be

under the influence during at least one visit. Anderson testified that initially, J.S. was

responding to the visits, but “because the visits were so sporadic, the bond was

slowly unbonding.”

The parents requested a jury trial, and the deadline for the case was extended

to accommodate that request. The parents were notified of the date and time of the

jury trial but did not appear. At the end of the trial, the jury found the Department

had proved paragraphs (D), (E), (N), (O), and (P) of family code section

161.001(b)(1) as to both parents and that termination was in J.S.’s best interest. The

trial court’s judgment terminated the parent–child relationship between both parents

and J.S. and appointed the Department as J.S.’s permanent managing conservator.

Only Mother appeals. In six issues, Mother complains the trial court erred by

terminating her parental rights to J.S. In her first four issues, Mother challenges the

legal and factual sufficiency of the evidence to support termination of her parental

rights under family code subsections 161.001(b)(1)(D), 161.001(b)(1)(E),

161.001(b)(1)(O), and 161.001(b)(1)(P).5 In her fifth issue, Mother contends the

5 Mother has not challenged the sufficiency of the evidence to support the jury’s finding on paragraph (N) of section 161.001(b)(1) in this appeal. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N) (constructive abandonment of a child in the Department’s conservatorship). –6– evidence was legally and factually insufficient to support a finding that termination

of her parental rights was in J.S.’s best interest. In her sixth issue, Mother contends

the trial court abused its discretion by admitting three exhibits into evidence.

STANDARD OF REVIEW

The Texas Family Code provides that a court may order termination of a

parent–child relationship if the court finds by clear and convincing evidence that the

parent engaged in conduct prohibited by section 161.001(b)(1) and that termination

is in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1), (2).

Because the fundamental liberty interest of parents in the care, custody, and control

of their children is of constitutional dimensions, involuntary parental terminations

must be strictly scrutinized. In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In such

cases, due process requires the petitioner to justify termination by clear and

convincing evidence. TEX. FAM. CODE ANN. § 161.001(b); In re E.N.C., 384 S.W.3d

796, 802 (Tex. 2012). “Clear and convincing evidence” is that “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; In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam); In re N.T.,

474 S.W.3d 465, 475 (Tex. App.—Dallas 2015, no pet.).

On appeal, we apply a standard of review that reflects the elevated burden at

trial. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014); In re A.T., 406 S.W.3d 365, 370

(Tex. App.—Dallas 2013, pet. denied). Under both legal and factual sufficiency

–7– standards, we consider all the evidence, defer to the factfinder’s credibility

determinations, and determine whether the factfinder could reasonably form a firm

belief or conviction that the grounds for termination were proven. In re N.T., 474

S.W.3d at 475. “The distinction between legal and factual sufficiency lies in the

extent to which disputed evidence contrary to a finding may be considered.” In re

A.C., 560 S.W.3d 624, 630 (Tex. 2018).

In conducting a legal sufficiency review of an order terminating parental

rights, the reviewing court cannot ignore undisputed evidence contrary to the finding

but must otherwise assume the factfinder resolved disputed facts in favor of the

finding. Id. We “consider all the evidence, not just that which favors the verdict,”

and we assume the factfinder resolved disputed facts in favor of its finding if a

reasonable factfinder could do so. In re N.T., 474 S.W.3d at 475 (internal quotation

omitted). We disregard all evidence that a reasonable factfinder could have

disbelieved or found to have been incredible. Id.

When reviewing the factual sufficiency of the evidence supporting a

termination finding, we ask whether, in light of the entire record, the evidence is

such that a factfinder could reasonably form a firm conviction about the truth of the

allegations against the parent. Id.; In re J.D.B., 435 S.W.3d 452, 463 (Tex. App.—

Dallas 2014, no pet.). We must consider whether the disputed evidence is such that

a reasonable factfinder could not have reconciled that disputed evidence in favor of

its finding. In re N.T., 474 S.W.3d at 475. If the disputed evidence is so significant

–8– that a factfinder could not reasonably have formed a firm belief or conviction, then

the evidence is factually insufficient. Id.

In this case, the jury found Mother engaged in conduct prohibited by

paragraphs (D), (E), (N), (O), and (P) of section 161.001(b)(1), and that termination

was in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),

(E), (N), (O), (P); id. § 161.001(b)(2). When, as in this case, a trial court terminates

a parent’s rights based on section 161.001(b)(1)(D) or (E) and the parent challenges

that finding on appeal, due process requires the appellate court to review the finding

and detail its analysis even if it affirms the termination order based on other grounds

under section 161.001(b)(1). In re C.W., 586 S.W.3d 405, 407 (Tex. 2019) (per

curiam); In re N.G., 577 S.W.3d at 235.

ENDANGERMENT

In her first issue, Mother contends the evidence was legally and factually

insufficient to support the jury’s finding under section 161.001(b)(1)(D). That

provision requires the jury to find by clear and convincing evidence that a 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 ANN. § 161.001(b)(1)(D). “‘[E]ndanger’ means more than a threat

of metaphysical injury or the possible ill effects of a less-than-ideal family

environment, [but] it is not necessary that the conduct be directed at the child or that

–9– the child actually suffers injury.” Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d

531, 533 (Tex. 1987).

While paragraph (D) concerns endangerment due to the child’s environment,

parental conduct is relevant. See In re J.D.B., 435 S.W.3d at 463. A parent’s drug

use, violence, or other abuse may make the child’s environment endangering to the

child. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). A

parent acts “knowingly” when the parent is aware that the environment creates a

potential danger to the child but the parent disregards that risk. See In re P.N.T., 580

S.W.3d 331, 355 (Tex. App.—Houston [14th Dist.] 2019, pet. denied); In re L.M.M.,

522 S.W.3d 34, 44 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

Mother argues it was impossible for her to have endangered J.S. because she

placed J.S. with Grandmother shortly after J.S. was born and Mother was allowed

only supervised visits with J.S. for a year. However, Cassie McCray, a Family Based

Safety Service worker who visited the family in that time period, testified that she

believed the family was still living together.6 When J.S. was placed into foster care,

he tested positive for ingestion of methamphetamine within the preceding three

months and was suffering symptoms of withdrawal. Mother knew she should not use

methamphetamine because she was required to do drug testing and ordered to lead

6 McCray testified that there were two homes on the property, both were used by the family, and at the time a home study was to be conducted on Grandmother’s home, the family was all living in the same home. –10– a drug-free lifestyle. Yet she lived with J.S. and Grandmother and continued to use

drugs even though that conduct created an environment where J.S. was exposed to

methamphetamine, leading to his suffering withdrawal symptoms.

Considering all the evidence, we conclude the evidence is both legally and

factually sufficient to produce in the minds of the jurors a firm belief or conviction

as to the truth of the allegation that Mother knowingly placed or knowingly allowed

J.S. to remain in conditions or surroundings which endangered his physical or

emotional well-being. See In re N.G., 577 S.W.3d at 235. We overrule Mother’s first

issue.

In her second issue, Mother contends the evidence was legally and factually

insufficient to support the jury’s finding to prove by clear and convincing evidence

that Mother engaged in conduct or knowingly placed J.S. with persons who engaged

in conduct which endangered his physical or emotional well-being. See TEX. FAM.

CODE ANN. § 161.001(b)(1)(E). This paragraph addresses parental misconduct.

Drug use during pregnancy, which Mother engaged in, may amount to

conduct that endangers the physical and emotional well-being of the child. In re

C.J.B., No. 05-19-00165-CV, 2019 WL 3940987, at *7 (Tex. App.—Dallas Aug.

21, 2019, no pet.) (mem. op.). And continued illegal drug use after a child’s removal

is conduct that jeopardizes parental rights and may be considered as establishing an

endangering course of conduct. Id.

–11– The jury could find that Mother’s drug use during pregnancy endangered the

unborn J.S. The jury could also find that Mother continued to live with Grandmother

and J.S. after J.S. was placed with Grandmother and that Mother endangered J.S. by

using methamphetamine around him, leading to J.S.’s testing positive for

methamphetamine and suffering withdrawal symptoms. Finally, the jury could find

Mother’s continued drug use after J.S.’s placement in foster care endangered him by

jeopardizing the parent–child relationship.

The evidence also showed that Mother did not attend all the visits with J.S.,

even when they were virtual due to the COVID pandemic. From June to October

2020, the Department provided Mother at least thirteen opportunities for visits with

J.S.; Mother attended nine of them. Anderson testified she sent Mother the links and

times for logging in for the visits. The visits were all for the same time on the same

day of the week. When Mother would fail to log in, Anderson would text Mother to

remind her. Mother sometimes responded to these texts, but not until hours later.

Sometimes, Mother requested an unscheduled visit. Anderson would arrange it and

send Mother the link, but Mother “would never log on to the visit.” Mother’s last

visit with J.S. was October 28, 2020, more than seven months before the trial on

June 14 and 15, 2021. About three weeks before trial, Mother contacted Anderson

asking to restart the visits.7 Anderson testified that due to the sporadic nature of

7 Anderson did not testify expressly whether any visits were arranged after October 28, 2020, and, if so, whether Mother attended them; however, she did testify that Mother’s last visit with J.S. was October 28, 2020. –12– Mother’s visits with J.S., the bond between them “was slowly unbonding.” The jury

could find Mother’s sporadic visits followed by her failure to visit J.S. for months

endangered him. See In re C.Y., No. 02-21-00261-CV, 2022 WL 500028, at *6 (Tex.

App.—Fort Worth Feb. 18, 2022, pet. denied) (mem. op.) (parent’s inconsistent

participation in visitation can endanger child’s well-being).

Considering all the evidence, we conclude the evidence is both legally and

factually sufficient to produce in the minds of the jurors a firm belief or conviction

as to the truth of the allegation that Mother knowingly engaged in conduct or

knowingly placed J.S. with persons who engaged in conduct that endangered his

physical or emotional well-being. See In re N.G., 577 S.W.3d at 235. We overrule

Mother’s second issue.

Having concluded that the evidence is sufficient to support the jury’s findings

under paragraphs (D) and (E), we need not address Mother’s third and fourth issues

contending the evidence was legally and factually insufficient to support the jury’s

findings under paragraphs (O) and (P). See In re N.G., 577 S.W.3d at 232 (appellate

court need uphold only one termination ground and best interest finding to affirm

termination, but due process requires appellate court to provide details of its analysis

under paragraphs (D) and (E) because of potential consequences for parental rights

to a different child under paragraph (M)).

–13– BEST INTEREST OF THE CHILD

In her fifth issue, Mother contends the evidence is legally and factually

insufficient to support the jury’s finding that termination of the parent–child

relationship was in J.S.’s best interest. The supreme court has set forth a list of non-

exclusive factors to be considered in determining whether termination is in a child’s

best interest:

(1) the child’s desires; (2) the child’s emotional and physical needs now and in the future; (3) any 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 the individuals seeking custody to promote the best interest of the child; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement;

(8) the parent’s acts or omissions which may indicate that the existing parent–child relationship is improper; and

(9) any excuse for the parent’s acts or omissions.

In re E.N.C., 384 S.W.3d at 807 (quoting Holley v. Adams, 544 S.W.2d 367, 371–

72 (Tex. 1976)). This list is not exclusive, and the State need not prove all of the

factors as a condition precedent to termination. In re C.H., 89 S.W.3d 17, 27 (Tex.

2002). We will review the evidence supporting each factor.

–14– 1. The child’s desires: There was no direct evidence of J.S.’s desires. He was

about two-and-a-half years old at the time of trial. However, Anderson testified that

due to the sporadic nature of Mother’s visits with J.S., they were “slowly

unbonding.”

2. The child’s emotional and physical needs now and in the future:

Anderson testified that J.S. appeared to have been neglected before he was placed in

foster care. He was developmentally delayed for a thirteen-month-old, including

“having no words,” making no eye contact, having no socialization skills, still

drinking out of a bottle, and having limited balance “so it was as if he just learned to

walk.” He had a flat affect, showed no emotion, and could not engage with adults or

children. Anderson testified that J.S.’s “tantrums were more than what a 13-month-

year-old [sic] should have been at that developmental point.” J.S.’s physicians are

also concerned he may have autism. J.S. receives speech therapy and cognitive

behavioral therapy three times per week.

3. Any emotional or physical danger to the child now or in the future: The

record supports a finding J.S. would be endangered if placed in Grandmother’s or

Mother’s care. McCray testified she did not believe Grandmother was properly

supervising Mother’s visits with J.S. McCray also suspected that Mother was living

with Grandmother and J.S. While J.S. was in Grandmother’s care, he was neglected,

and he ingested methamphetamine. He also requires regular therapy sessions, but

the record supports a finding Mother would be unlikely to ensure he attended them.

–15– Mother failed to attend her own drug tests and therapy, even when the Department

arranged free transportation for her.

Anderson also testified about the house in which Mother lived at the time of

trial. She was not allowed to enter the house, but she could smell a strong odor of

urine, feces, and mold coming from the house. An extension cord ran to the house,

which the jury could conclude indicated a lack of proper electricity provision. The

grounds surrounding the house had broken-down cars that were open with exposed

car parts. Anderson agreed that it was a home “that proposes [sic] a danger to a

child.”

A finding of further danger to J.S. is supported by evidence that both Mother

and Father were addicted to methamphetamine and have done nothing during J.S.’s

life to overcome their addiction. J.S. had already ingested methamphetamine at least

once and suffered painful withdrawal symptoms. The evidence supported no reason

to believe it would not happen again if J.S. were returned to Mother, Father, or

Grandmother’s care.

4. The parental abilities of the individuals seeking custody: J.S. is currently

placed with a foster family who hopes to adopt him. The evidence shows the foster

parents are providing J.S. the services he requires. In their care, J.S. is progressing.

Anderson testified J.S. is doing better at engaging with other people and making eye

contact. He has made a significant amount of progress based on how delayed he was

and the health problems he had.

–16– The evidence does not show Mother has any significant parenting ability.

Mother used methamphetamine while pregnant with J.S. She used

methamphetamine before visiting him. She was required to attend parenting classes

but did not. Mother’s attendance at visits with J.S. was sporadic at best and

concluded with her not visiting J.S. in the months before trial. McCray testified that

Mother said “she was going to go down to the courthouse to give legal custody to

her grandmother.” McCray said Mother’s attitude was that she was not going to do

drug testing or the other services and that the Department should give custody to

Grandmother.

5. The programs available to assist the individuals seeking custody to

promote the best interest of the child: Anderson testified that there is a program

called the Green Apple program that provides the therapy sessions J.S. needs.

Anderson also testified that these services were readily available near the foster

parents and that they took J.S. to his therapy sessions.

6. The plans for the child by the individuals or agency seeking custody:

Anderson testified that the Department’s plan was for the foster family to adopt J.S.

after the biological parents’ parental rights were terminated. There is limited to no

evidence of Mother’s intentions because she did not attend the trial. The only

evidence in the record is that she at some point wanted Grandmother to have custody

of J.S. The Department presented evidence that while J.S. was placed with

Grandmother, she did not provide proper care for him, she did not properly supervise

–17– visits between J.S. and Mother and Father, and the home she was moving to was not

appropriate for a young child.

7. The stability of the home or proposed placement: Anderson testified that

J.S. “is in a foster-to-adopt home, so the goal is for [J.S.] to be adopted.” The

evidence concerning the foster home shows the placement is stable; J.S. is receiving

the health care and therapy he requires and is overcoming his developmental delays

while in his foster parents’ care.

8. The parent’s acts or omissions that may indicate the existing parent–child

relationship is improper: Mother’s conduct demonstrates the existing parent–child

relationship is improper. Mother used methamphetamine while pregnant with J.S.

Although Mother was informed repeatedly of the steps needed to regain custody of

J.S. and to avoid termination of the parent–child relationship, she made almost no

effort to comply with them. She participated in almost none of the services.

Repeatedly, she agreed to get drug tested but then failed to show up for the testing.

The drug test she did take showed she had used methamphetamine. Mother admitted

to using methamphetamine. She scheduled psychological evaluations four times but

did not appear for them. The caseworkers provided her with vouchers for free

transportation to get to the services, yet she did not attend them. Mother was not

working at the time, so the services did not conflict with her employment. McCray

testified she believed Mother did not intend to complete the drug testing or the other

services and that Mother wanted the Department to give custody to Grandmother.

–18– Mother did not regularly attend the scheduled visits with J.S., even when the

visits were online. Mother used methamphetamine before some of the visits, and at

least one of the visits ended early because Mother appeared to be under the influence.

Mother’s last visit with J.S. was more than seven months before the trial. Neither

Mother nor Grandmother with whom Mother wanted J.S. to be placed provided a

home safe for J.S. after December 2019. Mother was informed of the date when her

parental rights would be determined, yet she did not appear on either day of the two-

day trial.

9. Any excuse for the parent’s acts or omissions: The caseworkers testified

that Mother made excuses for her failures, such as she did not feel well, she did not

have a car at her disposal, or she did not want to ride in a car with other people.

On appeal, Mother argues “it is in her child’s best interest that her parental

rights not be terminated and that her child be placed with her or someone in her

family.” The caseworkers testified about the steps they took to place J.S. with a

family member or friend of Mother, but they were unable to locate anyone who

wanted to raise J.S. or whom the Department determined to be suitable.

The evidence shows Mother is a methamphetamine addict. The Department

provided Mother with access to services that would help her overcome her addiction

and remain the legal mother of her child. Mother, however, failed to participate in

services that would have helped her. When J.S. was in Grandmother’s care, he

became so developmentally delayed that Anderson described him as neglected. The

–19– Department required Mother to participate in services to improve her parenting, but

Mother did not participate in them. When J.S. was removed from Grandmother’s

care, he was suffering painful withdrawal symptoms from exposure to

methamphetamine. After being placed with a foster family, J.S. received therapy to

overcome the developmental deficits, and his condition improved. Mother was

scheduled to have weekly visits with J.S., but her attendance was sporadic. She did

not have any visits with J.S. for seven months before the trial. Finally, Mother did

not appear at the trial to defend her parental rights.

After considering all the evidence, we conclude the evidence is both legally

and factually sufficient to produce in the minds of the jurors a firm belief or

conviction that termination of the parent–child relationship between Mother and J.S.

was in J.S.’s best interest. TEX. FAM. CODE ANN. § 161.001(b)(2). We overrule

Mother’s fifth issue.

ADMISSION OF EVIDENCE

In her sixth issue, Mother contends the trial court abused its discretion by

admitting the written results of drug tests. In State’s Exhibit 1, the drug test showed

that a sample of J.S.’s hair collected on February 5, 2020, tested positive for

methamphetamine and marijuana. In State’s Exhibit 5, the drug tests showed that

samples of Father’s urine collected on October 2, 2020, tested positive for

amphetamine, methamphetamine, and marijuana. In State’s Exhibit 6, the drug tests

showed that a sample of Mother’s urine collected on October 2, 2020, tested positive

–20– for amphetamine, methamphetamine, and the benzodiazepines nordiazepam,

oxazepam, and temazepam, and that a sample of her hair collected the same day

tested positive for amphetamine and methamphetamine.

We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (per curiam). A trial

court abuses its discretion if it acts in an arbitrary or unreasonable manner without

reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241–42 (Tex. 1985); In re A.C.M., No. 05-15-01069-CV, 2016 WL

692827, at *2 (Tex. App.—Dallas Feb. 22, 2016, no pet.) (mem. op.).

The written results for each of the tests were attached to an affidavit stating:

My name is [affiant]. I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated, which are true.

I am the custodian of records of Texas Alcohol & Drug Testing Service, Inc., located at [address]. Attached hereto are [3, 7, or 8, depending on the exhibit] pages of records from Texas Alcohol & Drug Testing Service, Inc. regarding hair/urine/oral fluid testing utilizing strict chain of custody procedures, which was performed utilizing GC/MS (gas chromatography/mass spectrometry) instruments by a Certified Scientist and reviewed by a licensed Medical Review Officer. These said [3, 7, or 8] pages of records are kept by Texas Alcohol & Drug Testing Service, Inc., in the regular course of business, and it was the regular course of business of Texas Alcohol & Drug Testing Service, Inc. for an employee or representative of Texas Alcohol & Drug Testing Service, Inc., with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record, and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original.

–21– The test results were signed by the medical review officer, an M.D., verifying

that the test was positive. The test results in each of the three exhibits identify the

collection site, date, type of panel test used, and name of the lab that performed the

test. Included in each of the exhibits was the laboratory report indicating the

quantitative results, identifying the lab as “DHHS Certified.” Also attached to each

exhibit was the Forensic Drug Testing Custody and Control Form for the samples.

Mother’s counsel objected to State’s Exhibit 1, the drug-test results for J.S.:

Your Honor, I’m going to object to hearsay. While there’s a business record affidavit, there’s not a litigation packet that’s attached to this, and the person who has signed for the business record affidavit has not been verified as an expert to be able to talk to the scientific formula behind these drug tests. I would say while the business record affidavit, on its face is fine, this witness is not trustworthy because this witness doesn’t have the scientific knowledge to prepare that to the Court.

Mother’s counsel also objected to State’s Exhibits 5 and 6, the drug test results for

her and for Father, stating:

Your Honor, I’m going to object as to hearsay and reflect my objection to the earlier drug test. I believe that this witness has not been proven up as an expert and the business record affidavit is not trustworthy in that the person who is in control of the business records is not an expert as to scientific methods to drug testing.

The trial court overruled Mother’s objections, stating the objections went to the

weight of the evidence and not the admissibility of the exhibits.

–22– Mother’s objection is that the sponsoring witnesses for the exhibits, neither of

whom was a scientist,8 were not qualified to testify about the reliability of the drug

tests. However, there is no requirement in termination cases that the sponsoring

witness be capable of testifying about the reliability of the test when the documents

establish the reliability. See, e.g., In re S.W.W., No. 14-22-00503-CV, 2022 WL

17982904, at *7 (Tex. App.—Houston [14th Dist.] Dec. 29, 2022, pet. denied)

(mem. op.) (noting court has “consistently rejected” argument that expert testimony

was necessary for admission of drug test results).

Other appellate courts have found practically identical documents sufficient

to establish the reliability and admissibility of the tests. See id.; see also F.C. v. Tex.

Dep’t of Fam. & Protective Servs., No. 03-19-00625-CV, 2020 WL 101998, at *6

(Tex. App.—Austin Jan. 9, 2020, no pet.) (mem. op.). In F.C., the court concluded

that because the hair follicle test was accompanied by an affidavit that complied with

evidence rule 902(10)(B), “the only question regarding its admissibility was whether

the drug test showed sufficient indicia of trustworthiness to bring it within the

business-records exception to the hearsay rule.” F.C., 2020 WL 101998, at *6 (citing

TEX. R. EVID. 803(6)); see also TEX. R. EVID. 902(10)(B) (requirements for self-

authentication of business records accompanied by affidavit). The business records

8 McCray, the Family Based Safety Service worker for the Department, was the sponsoring witness for State’s Exhibit 1. She described her position as working with families of children who are not in the care and custody of the Department. Anderson, the caseworker for the Department working with Mother and Father in this case, was the sponsoring witness for State’s Exhibits 5 and 6. –23– affidavit in F.C. contained identical language to the affidavits in this case, averring

that the drug testing “utilize[ed] strict chain of custody procedures” and “was

performed utilizing GC/MS (gas chromatography/mass spectrometry) instruments

by a certified scientist and reviewed by a licensed medical review officer.” F.C.,

2020 WL 101998, at *6. As in F.C., Exhibits 5 and 6 also included testimony to

establish the requirements for a self-authenticating business record under evidence

rule 902(10)(B). See id. Further, the court in F.C. relied on other indicia of

trustworthiness that are also included in Exhibits 5 and 6 in this case:

The drug test itself was signed by the medical review officer, an MD, verifying that the test was positive. The test result identifies the collection site, date, type of panel test used, and name of the lab that performed the test. Attached also to the business-records affidavit within PX-7 was (a) the laboratory report indicating the quantitative results, identifying the lab as “DHHS Certified,” and (b) the “Hair and/or Urine Custody and Control Form” that accompanied the sample Father provided as it was transported from the testing facility to the laboratory.

Id. The court concluded that the trial court did not abuse its discretion in determining

that the drug test and accompanying affidavit showed sufficient indicia of

trustworthiness to be properly admitted as a business record. Id.; see also In re

O.G.H.D., No. 09-21-00172-CV, 2021 WL 4466002, at *7 (Tex. App.—Beaumont

Sept. 30, 2021, no pet.) (mem. op.) (affidavit from Texas Alcohol and Drug Testing

Service and the attached documents established reliability of drug test results); In re

E.B., No. 11-19-00001-CV, 2019 WL 3955974, at *3 (Tex. App.—Eastland Aug.

22, 2019, no pet.) (mem. op.) (same). We reach the same conclusion here.

–24– Even if the trial court erred by admitting the exhibits, we cannot reverse unless

the record establishes that the evidence probably caused the rendition of an improper

verdict. TEX. R. APP. P. 44.1(a); see In re A.H.J., No. 05-15-00501-CV, 2015 WL

5866256, at *5 (Tex. App.—Dallas Oct. 8, 2015, pet. denied) (mem. op.). We review

the entire record to determine if the error was harmful. In re B.K.G.D., No. 01-20-

00057-CV, 2020 WL 3821086, at *15 (Tex. App.—Houston [1st Dist.] July 2, 2020,

pet. denied) (mem. op.). A successful challenge to a trial court’s evidentiary rulings

usually requires the complaining party to show that the judgment turns on the

particular evidence admitted or excluded. Id. “The general rule is error 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.” Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004);

see also In re D.R., 631 S.W.3d 826, 838 (Tex. App.—Texarkana 2021, no pet.)

(admission of drug test results was harmless where mother failed to object to

testimony containing substantially the same information).

Concerning State’s Exhibit 1, the test results of J.S.’s hair sample collected

on February 5, 2020, although Mother objected to the admission of the written test

results, witnesses testified about the test results without Mother objecting. McCray

testified without objection that J.S. “was tested by hair follicle and was found to

have—his body had somehow ingested quite a bit of methamphetamine.” Anderson

testified without objection that when J.S. came into the Department’s care, the level

–25– of methamphetamine in his hair was “quite high.” We conclude the admission of

State’s Exhibit 1, if erroneous, was harmless because Mother did not object to other

evidence proving the same or similar facts.

Concerning State’s Exhibits 5 and 6, the test results of Mother’s and Father’s

hair and urine samples collected October 2, 2020, Mother does not explain why the

admission of these test results was likely to result in the rendition of an improper

judgment. The evidence that Mother and Father used methamphetamine during the

pendency of the case was relevant to several of the statutory factors for termination.

See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), and (P). Other evidence that

Mother and Father used methamphetamine during the pendency of the case was

admitted without objection. Mother signed forms acknowledging she used

methamphetamine on February 19, 2020, and March 1, 2020. Father signed forms

acknowledging he used methamphetamine on February 14, 2020, and March 4,

2020, and that he tested positive for methamphetamine from an oral swab collected

on March 6, 2020. These forms were admitted without objection. Also, Anderson

testified without objection that both parents admitted at a previous hearing that they

were addicted to methamphetamine, that they moved to get away from drugs, but

Father knew where to get drugs in the area they moved to, and that they used drugs

the day before the hearing. We conclude the admission of State’s Exhibits 5 and 6,

even if erroneous, was harmless because similar evidence was admitted without

objection. See In re D.R., 631 S.W.3d at 838.

–26– We overrule Mother’s sixth issue.

CONCLUSION

We affirm the trial court’s judgment.

/Maricela Breedlove/ 210898f.p05 MARICELA BREEDLOVE JUSTICE

–27– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF J.S., A On Appeal from the County Court At CHILD Law No. 1, Kaufman County, Texas Trial Court Cause No. 104418-CC. No. 05-21-00898-CV V. Opinion delivered by Justice Breedlove. Justices Partida-Kipness and Carlyle participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 6th day of September, 2023.

–28–