In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-23-00386-CV
IN THE INTEREST OF T.W., A CHILD
On Appeal from the 320th District Court Potter County, Texas Trial Court No. 96596-D-FM, Honorable Carry Baker, Presiding
April 2, 2024 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Appellant, S.W. (Mother) appeals from the trial court’s final order terminating her
parental rights to T.W., a child.1 Mother contends the trial court violated her Sixth
Amendment right to confrontation2 by admitting drug test results via a business record
affidavit instead of through a sponsoring witness. We affirm.
1 To protect T.W.’s privacy, we will refer to S.W. as “Mother,” and the child by her initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). The parental rights of T.W.’s father, R.W. or “Father,” were terminated in the same proceeding. Father did not appeal from the judgment. 2 See U.S. CONST. amend. VI. Background
In March 2022, the Texas Department of Family and Protective Services became
involved due to a domestic violence incident in T.W.’s presence in which Father
eventually pleaded guilty to assaulting Mother, causing bodily injury; he received twelve
months of deferred adjudication community supervision. The Department required that
Father find separate living arrangements.
The evidence shows Mother’s 17-year struggle with methamphetamine use. She
had previously forfeited her parental rights to seven other children due to alleged
methamphetamine use, as well as concerns about sexual abuse and domestic violence.
After Father left the household in April 2022, Mother became depressed and doubted her
abilities to care for T.W. alone. Mother admitted a history of using methamphetamine to
a Department investigator and expressed concern that she would relapse. The
Department initially permitted Mother to have supervised visitation with T.W. through a
family friend, but the friend was instructed to leave the residence after using
methamphetamine. Although the Department advised Mother the friend should not be
around T.W., the investigator returned less than 24 hours later and found the friend in the
residence again.
Meanwhile, Mother’s behaviors became more erratic, as she admitted to the
investigator to suffering from untreated depression, anxiety, and bipolar disorder. When
no one else came forward to assist Mother with T.W.’s care, the Department removed the
child and placed her in foster care. At removal, T.W. was less than a year old.
2 Mother admitted in testimony that throughout the history of the 18-month case,
methamphetamine use had been a problem for Mother. She acknowledges that
methamphetamine is harmful to the child. In April 2022, the investigator sent Father3 and
Mother to undergo a follicle drug screen. The investigator testified without objection that
Mother tested positive for the presence of substances in the following quantities:
• Methamphetamine: 41,462
• Amphetamine 4,111
Four months later, Mother was charged with endangering T.W. by possessing
methamphetamine. Mother pleaded guilty and was placed on three years of probation.
Mother agreed she tested positive for drug use throughout the proceedings. She
completed some services but not others. Mother twice attempted treatment in
rehabilitation to quit drugs but began using methamphetamine again thereafter. Mother
admitted to using methamphetamine as recently as two to three months before final
hearing. She described her addiction as a “daily struggle.”4 Over Mother’s objections,
the trial court admitted Exhibits 2 and 4, which contained results of drug tests performed
on Mother and Father while the case was pending.
On October 31, 2023, the trial court signed an order terminating Mother’s parental
rights to T.W. The court found by clear and convincing evidence that predicate grounds
3 Father’s test results indicated the presence of methamphetamine, amphetamine, and cocaine in
high quantities. 4 Mother does not challenge whether the State’s evidence to terminate her parental rights is sufficient.
3 existed to support termination of parental rights, per Texas Family Code section 161.001
(D), (E), (O) and (P), and that termination was in T.W.’s best interest.
Analysis
We articulate the sole issue on appeal in the manner framed by Appellant:
“Whether [Mother’s] Sixth Amendment right to confrontation [was] violated as the trial
court admitted drug test results by business record affidavit without a sponsoring expert
witness.”5 We answer that question, “No.” The Sixth Amendment to the United States
Constitution provides, in relevant part: “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against [her] . . . .”6 (emphasis
added). Consistent with the text, the United States Supreme Court has previously held
that “[t]he protections provided by the Sixth Amendment are explicitly confined to ‘criminal
prosecutions.’” Austin v. United States, 509 U.S. 602, 608, 113 S. Ct. 2801, 125 L. Ed.2d
488 (1993). Our state Supreme Court has held that parental termination cases are civil
in nature because “[i]n securing what is in the best interests of the child, the State is not
pursuing a retributive or punitive aim, but a ‘purely remedial function: the protection of
minors. It does not aim to punish or to impose retribution.’” In re A.V., 113 S.W.3d 355,
361 (Tex. 2002) (quoting Ex parte Cantu, 913 S.W.3d 701, 706 (Tex. App.—San Antonio
5 She similarly asserts in her Conclusion: “Appellant’s Sixth Amendment Constitutional rights to due
process to confrontation were violated in this case as her legal counsel was denied the right to confront an expert witness regarding S.W.’s hair follicle drug test results as the trial court admitted drug test results by business record affidavit only.” We review this issue de novo because it presents a question of law. See Cisneros v. State, No. 07-18-00260-CR, 2019 Tex. App. LEXIS 10424, at *9 (Tex. App.—Amarillo Dec. 2, 2019, no pet.); Scally v. Tex. State Bd. of Med. Examiners, 351 S.W.3d 434, 446 (Tex. App.—Austin 2011, pet. denied). 6 Article I, section 10 of the Texas Constitution similarly provides that “[i]n all criminal prosecutions[,]
the accused . . . shall be confronted by the witnesses against him . . . .” TEX. CONST. art. I, § 10.
4 1995, pet. ref’d), cert. denied, 515 U.S. 1145, 115 S. Ct. 2584, 132 L. Ed. 2d 833 (1995)).
Because parental termination cases lack the purpose to punish and are designed to
protect the best interests of the child, parental termination proceedings are, by their
nature, civil, not criminal.
Appellant’s brief does not discuss the holdings in Austin or A.V. Rather, she
misplaces reliance on In the Interest of K.C.P., 142 S.W.3d 574 (Tex. App.—Texarkana
2004, no pet.) for her Confrontation Clause argument. In that case, the term “confront”
appears in a single instance, and only in a parenthetical discussion of how the Court of
Criminal Appeals uses a balancing test for disallowing confrontation in parole revocation
proceedings.7 Instead, the issue before the Texarkana court involved a mother’s
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-23-00386-CV
IN THE INTEREST OF T.W., A CHILD
On Appeal from the 320th District Court Potter County, Texas Trial Court No. 96596-D-FM, Honorable Carry Baker, Presiding
April 2, 2024 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Appellant, S.W. (Mother) appeals from the trial court’s final order terminating her
parental rights to T.W., a child.1 Mother contends the trial court violated her Sixth
Amendment right to confrontation2 by admitting drug test results via a business record
affidavit instead of through a sponsoring witness. We affirm.
1 To protect T.W.’s privacy, we will refer to S.W. as “Mother,” and the child by her initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). The parental rights of T.W.’s father, R.W. or “Father,” were terminated in the same proceeding. Father did not appeal from the judgment. 2 See U.S. CONST. amend. VI. Background
In March 2022, the Texas Department of Family and Protective Services became
involved due to a domestic violence incident in T.W.’s presence in which Father
eventually pleaded guilty to assaulting Mother, causing bodily injury; he received twelve
months of deferred adjudication community supervision. The Department required that
Father find separate living arrangements.
The evidence shows Mother’s 17-year struggle with methamphetamine use. She
had previously forfeited her parental rights to seven other children due to alleged
methamphetamine use, as well as concerns about sexual abuse and domestic violence.
After Father left the household in April 2022, Mother became depressed and doubted her
abilities to care for T.W. alone. Mother admitted a history of using methamphetamine to
a Department investigator and expressed concern that she would relapse. The
Department initially permitted Mother to have supervised visitation with T.W. through a
family friend, but the friend was instructed to leave the residence after using
methamphetamine. Although the Department advised Mother the friend should not be
around T.W., the investigator returned less than 24 hours later and found the friend in the
residence again.
Meanwhile, Mother’s behaviors became more erratic, as she admitted to the
investigator to suffering from untreated depression, anxiety, and bipolar disorder. When
no one else came forward to assist Mother with T.W.’s care, the Department removed the
child and placed her in foster care. At removal, T.W. was less than a year old.
2 Mother admitted in testimony that throughout the history of the 18-month case,
methamphetamine use had been a problem for Mother. She acknowledges that
methamphetamine is harmful to the child. In April 2022, the investigator sent Father3 and
Mother to undergo a follicle drug screen. The investigator testified without objection that
Mother tested positive for the presence of substances in the following quantities:
• Methamphetamine: 41,462
• Amphetamine 4,111
Four months later, Mother was charged with endangering T.W. by possessing
methamphetamine. Mother pleaded guilty and was placed on three years of probation.
Mother agreed she tested positive for drug use throughout the proceedings. She
completed some services but not others. Mother twice attempted treatment in
rehabilitation to quit drugs but began using methamphetamine again thereafter. Mother
admitted to using methamphetamine as recently as two to three months before final
hearing. She described her addiction as a “daily struggle.”4 Over Mother’s objections,
the trial court admitted Exhibits 2 and 4, which contained results of drug tests performed
on Mother and Father while the case was pending.
On October 31, 2023, the trial court signed an order terminating Mother’s parental
rights to T.W. The court found by clear and convincing evidence that predicate grounds
3 Father’s test results indicated the presence of methamphetamine, amphetamine, and cocaine in
high quantities. 4 Mother does not challenge whether the State’s evidence to terminate her parental rights is sufficient.
3 existed to support termination of parental rights, per Texas Family Code section 161.001
(D), (E), (O) and (P), and that termination was in T.W.’s best interest.
Analysis
We articulate the sole issue on appeal in the manner framed by Appellant:
“Whether [Mother’s] Sixth Amendment right to confrontation [was] violated as the trial
court admitted drug test results by business record affidavit without a sponsoring expert
witness.”5 We answer that question, “No.” The Sixth Amendment to the United States
Constitution provides, in relevant part: “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against [her] . . . .”6 (emphasis
added). Consistent with the text, the United States Supreme Court has previously held
that “[t]he protections provided by the Sixth Amendment are explicitly confined to ‘criminal
prosecutions.’” Austin v. United States, 509 U.S. 602, 608, 113 S. Ct. 2801, 125 L. Ed.2d
488 (1993). Our state Supreme Court has held that parental termination cases are civil
in nature because “[i]n securing what is in the best interests of the child, the State is not
pursuing a retributive or punitive aim, but a ‘purely remedial function: the protection of
minors. It does not aim to punish or to impose retribution.’” In re A.V., 113 S.W.3d 355,
361 (Tex. 2002) (quoting Ex parte Cantu, 913 S.W.3d 701, 706 (Tex. App.—San Antonio
5 She similarly asserts in her Conclusion: “Appellant’s Sixth Amendment Constitutional rights to due
process to confrontation were violated in this case as her legal counsel was denied the right to confront an expert witness regarding S.W.’s hair follicle drug test results as the trial court admitted drug test results by business record affidavit only.” We review this issue de novo because it presents a question of law. See Cisneros v. State, No. 07-18-00260-CR, 2019 Tex. App. LEXIS 10424, at *9 (Tex. App.—Amarillo Dec. 2, 2019, no pet.); Scally v. Tex. State Bd. of Med. Examiners, 351 S.W.3d 434, 446 (Tex. App.—Austin 2011, pet. denied). 6 Article I, section 10 of the Texas Constitution similarly provides that “[i]n all criminal prosecutions[,]
the accused . . . shall be confronted by the witnesses against him . . . .” TEX. CONST. art. I, § 10.
4 1995, pet. ref’d), cert. denied, 515 U.S. 1145, 115 S. Ct. 2584, 132 L. Ed. 2d 833 (1995)).
Because parental termination cases lack the purpose to punish and are designed to
protect the best interests of the child, parental termination proceedings are, by their
nature, civil, not criminal.
Appellant’s brief does not discuss the holdings in Austin or A.V. Rather, she
misplaces reliance on In the Interest of K.C.P., 142 S.W.3d 574 (Tex. App.—Texarkana
2004, no pet.) for her Confrontation Clause argument. In that case, the term “confront”
appears in a single instance, and only in a parenthetical discussion of how the Court of
Criminal Appeals uses a balancing test for disallowing confrontation in parole revocation
proceedings.7 Instead, the issue before the Texarkana court involved a mother’s
complaint that the State’s admitted drug test results were improperly admitted as business
records because they lacked a showing of trustworthiness. Id. at 580.8
In addition, we note that testimony of Mother’s alleged methamphetamine use
during the pendency of this case was presented without objection throughout the entirety
7 See id. at 584 n.1 (citing Ex parte Taylor, 957 S.W.2d 43, 46 (Tex. Crim. App. 1997)).
8 After posing the question, “Were records of drug tests improperly admitted as business records,”
(id. at 578), the court answered:
It is uncontradicted that no evidence was presented regarding the qualifications of the persons who tested the specimens, the types of tests administered, or whether such tests were standard for the particular substance. We believe that admitting drug tests in a termination of parental rights case with no information as to the qualifications of the person or equipment used, the method of administering the test, and whether the test was a standard one for the particular substance indicates a lack of trustworthiness of the tests and that admission of such evidence is an abuse of discretion.
Id. at 580. Even so, however, the court held that any error was harmless because other evidence of drug use, including mother’s admissions, was properly admitted. Id. at 581. In the present case, evidence was presented without objection regarding Mother’s methamphetamine use during the pendency of the case, including Mother’s admissions to the same.
5 of the final hearing. Even if Mother possessed a right of confrontation, the trial court’s
admission of Exhibits 2 and 4 is cumulative of the other admitted evidence regarding
Mother’s drug use during this same period. See McNac v. State, 215 S.W.3d 420, 424–
25 (Tex. Crim. App. 2007); Dixon v. State, No. 07-16-00058-CR, 2022 Tex. App. LEXIS
268, at *16 (Tex. App.—Amarillo 2022, pet. ref’d). We overrule Appellant’s sole issue.
Conclusion
The trial court’s judgment is affirmed.
Lawrence M. Doss Justice