In re Interest of D.R.

631 S.W.3d 826

In the INTEREST OF D.R. and C.R., Children

No. 06-21-00019-CV

Court of Appeals of Texas, Texarkana.

Date Submitted: July 28, 2021

Date Decided: August 5, 2021

Cade Mayo, Civil - Ad Litem for D.R. and C.R., Children.

Bradley Akins, Jerry D. Rochelle, Texarkana, Michael D. Becker, for Appellee.

Cyndia Hammond, for Appellant.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Opinion by Justice Stevens

In a suit brought by the Texas Department of Family and Protective Services (the Department), the trial court terminated Mother's parental rights to her children on three grounds specified in Section 161.001, subsections (b)(1)(D), (O), and (P), of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (O), (P).¹ On appeal, Mother argues that the evidence is legally and factually insufficient to support the trial court's findings on the statutory grounds and its finding that termination of her parental rights was in the children's best interests. Mother also argues that the trial court erred by failing to hold statutory hearings before the final hearing, by failing to grant the motion for a 180-day extension based on extenuating circumstances, and by admitting drug test results over Mother's objection.

We find that the evidence is sufficient to support the trial court's Ground D finding and its conclusion that terminating Mother's parental rights was in the children's best interests. We also find that Mother's complaint about statutory hearings is moot, the trial court did not abuse its discretion in overruling the motion for a 180-day extension, and any error in admitting drug test results was rendered harmless by substantially similar testimony admitted without objection. As a result, we affirm the trial court's judgment.

I. Legally and Factually Sufficient Evidence Supports the Trial Court's Findings

A. Standard of Review

"The natural right existing between parents and their children is of constitutional dimensions." In re E.J.Z. , 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985) ). "Indeed, parents have a fundamental right to make decisions concerning ‘the care, custody, and control of their children.’ " Id. (quoting Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof—clear and convincing evidence—is required at trial." Id. (quoting In re A.B. , 437 S.W.3d 498, 502 (Tex. 2014) ). " ‘Clear and convincing evidence’ is that ‘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.’ " Id. (quoting TEX. FAM. CODE ANN. § 101.007 ) (citing In re J.O.A. , 283 S.W.3d 336, 344 (Tex. 2009) ). Based on this standard, we are required to "engage in an exacting review of the entire record to determine if the evidence is ... sufficient to support the termination of parental rights." Id. (quoting In re A.B. , 437 S.W.3d at 500 ).

"In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven." In re L.E.S. , 471 S.W.3d 915, 920 (Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) ; In re J.L.B. , 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.) ). "We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted." Id. (citing In re J.P.B. , 180 S.W.3d at 573 ).

"In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing." Id. (citing In re H.R.M. , 209 S.W.3d 105, 109 (Tex. 2006) (per curiam) ). "We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine ‘whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the ... allegations.’ " Id. (quoting In re H.R.M. , 209 S.W.3d at 109 (quoting In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002) ) (citing In re J.F.C. , 96 S.W.3d 256, 264, 266 (Tex. 2002) )). "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. (quoting In re J.F.C. , 96 S.W.3d at 266 ).

"Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, ‘the rights of natural parents are not absolute; protection of the child is paramount.’ " Id. (quoting In re A.V. , 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T. , 872 S.W.2d 189, 195 (Tex. 1994) ) (citing In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003) )). "A child's emotional and physical interests must not be sacrificed merely to preserve parental rights." Id. (quoting In re C.A.J. , 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing In re C.H. , 89 S.W.3d at 26 )).

B. The Evidence at Trial

At trial, Cherrell Stuart, a conservatorship worker with the Department, testified that she became involved in the case in March 2020, after Mother admitted to using methamphetamine and to having an unstable and unsafe environment for the children. According to Stuart, the children were living in surroundings with exposed wires and boards, and their room had graffiti on the walls and no beds. Stuart testified that she had visited the home after Mother had covered the exposed wires but noticed that there were still safety concerns for the children in the home.

Stuart testified that, although Mother completed some of her family-based services, she did not submit to several random drug testing requests. Stuart said that, even after Mother was released from inpatient drug treatment in May 2020, she failed to submit to six drug tests between June 2020 and February 2021 and tested positive for methamphetamine on August 11, October 8, and November 30, 2020, and January 13, 2021. Stuart testified that Mother admitted that she was using drugs when her drug test results were positive. Over Mother's objection, the trial court admitted drug test results attached to a business records affidavit, which showed that Mother tested positive for methamphetamine on February 18 and 28, April 15, August 11, October 8, and November 30, 2020.

Stuart also said that Mother was dating a man that was in a treatment facility until December 2020. Stuart told Mother that any person she was dating would also have to work family-based services, but the boyfriend never did, and Stuart believed they were still dating because Mother said that, "once he got out of jail they were trying to get a house together." Stuart testified that Mother was living with the boyfriend's father or grandfather.

Stuart testified that the children had behavioral issues that were improving with therapy. She believed that it was in their best interests to remain in their foster placement, which was a stable environment. During cross-examination, Stuart admitted that nothing prevented the foster parents from entering a discharge notice, that D.R. was very attached to Mother and was missing her, and that traumatized children can exhibit negative behavior. Stuart also testified that Mother had communicated with the children regularly during her weekly visitation.

Patricia Smith, the Court Appointed Special Advocate, testified that she regularly saw the children and visited with Mother. Smith said Mother's progress was "very slow" and that, even though Mother had completed some services, she was not "very consistent in those services." According to Smith, the children did not really ask about Mother and were doing well in their short-term placement.

Smith testified that D.R. was seven years old and had attention deficit and hyperactivity disorder (ADHD) and other behavioral issues but was showing improvement with therapy and medication. Smith also said that C.R., who was five years old, had a speech delay that was improving with therapy. During cross-examination, Smith agreed that the children were not in an adoptive home and did not have permanency, but still felt that it was in the best interests of the children to find permanency after Mother's parental rights were terminated.

C. Sufficient Evidence Supports the Ground D Predicate Finding

"Only one predicate finding under Section 161.001 [b](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest."² In re O.R.F. , 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (quoting In re A.V. , 113 S.W.3d at 362 ) (citing In re K.W. , 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.) ). Yet, because the trial court's finding under Ground D "may have implications for ... parental rights to other children," due process demands that we review the trial court's findings under this ground. In re N.G. , 577 S.W.3d 230, 234 (Tex. 2019) (per curiam).

Termination under Ground D is proper when there is clear and convincing evidence that a parent has "knowingly placed or knowingly allowed the child[ren] to remain in conditions or surroundings which endanger the physical or emotional well-being of the child[ren]." TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Ground D focuses on the children's environment, and the Department had the burden of proving by clear and convincing evidence that that environment endangered their physical or emotional well-being. See In re L.C. , 145 S.W.3d 790, 796 (Tex. App.—Texarkana...