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In re Z.S.

Court of Appeals of Texas, Second District, Fort Worth

April 18, 2019

In the Interest of Z.S., Child

          On Appeal from the 158th District Court Denton County, Texas Trial Court No. 17-2885-158

          Before Kerr, Pittman, and Birdwell, JJ.


          Wade Birdwell Justice.

         Mother appeals the trial court's order terminating her parental rights to her child Zane.[1] She raises two issues on appeal: (1) expert testimony about her drug-testing results is conclusory, unreliable, and legally insufficient; and (2) the evidence is legally and factually insufficient to show that termination is in Zane's best interest. We affirm.

         I. Background

         Mother, who moved to Texas from Wisconsin, has a history of involvement with the Texas Department of Family and Protective Services, in part because of her drug abuse and in part because of an abusive relationship with her children's father, [2]who is also a drug user. The Department removed two of Zane's older siblings-- Rachel and Danny--from Mother's care before Zane was born because Danny had tested positive for drugs at birth. Mother admits she was using drugs during this time. She also tested positive for drugs after Danny's birth while pregnant with Zane; Mother denied using drugs then but has no explanation for the positive results.

         By April 2017, Zane was eleven months old and living with Mother, [3] and the Department had returned Rachel and Danny to Mother on a monitored return. At a Department and CASA visit with Mother and all three children, the caseworker noticed that Danny had a burn on his face. Mother explained that Danny had tried to drink boiling water that he had pulled off the counter where Mother had placed it to make tea. Mother was not in the room at the time. Mother told the caseworker that the burn had occurred the week before, on a Sunday; that the burn merely looked red that night, so she put some Neosporin on it; that the burn had "bubbled up" by the next morning; but that Mother had waited until after Rachel was finished with school that day before taking Danny to the emergency room because she had no one else to pick up Rachel from school and take care of her.[4] The caseworker found out later that the emergency room had Danny transported by ambulance to Parkland for treatment and that Danny had developed a throat infection as a result of the burn.

         The Department removed all three children from Mother's care and drug tested Mother and the children. All four, including Zane, tested positive for cocaine. The Department also discovered that Mother had been allowing Father's parents to have possession of Zane at least once per week even though they were prohibited from having access to Rachel and Danny in the monitored return.

         The trial court rendered temporary orders appointing the Department Zane's temporary managing conservator and ordering Mother to be drug and alcohol tested. Mother signed a service plan agreeing, among other things, (1) to submit to random drug testing, (2) to attend NA/AA meetings five times per week if she had a positive drug test, (3) to attend individual counseling and parenting classes, and (4) to maintain safe, stable, and appropriate housing for at least six months and for the rest of the case thereafter.

         While this case was pending, Mother moved for a temporary restraining order and permanent injunction against Father to restrain him from committing family violence against her, Zane, and Zane's siblings. Mother also filed an emergency motion to modify the trial court's temporary orders to remove the restriction that she not be in the presence of any child under sixteen because she had recently given birth to another child, Andy, [5] and the doctor would not release him to her care because of the restriction. The trial court denied the motion, and the Department placed Andy in foster care with Zane.

         The Department also moved for a temporary restraining order against Father because he had threatened the caseworkers with violence.

         Mother again tested positive for cocaine in December 2017, after Zane's case had been pending about eight months. Nevertheless, Mother once again moved to modify the temporary orders asking to move with Zane and Andy to Wisconsin so that they could all live with her mother (Grandmother) there.

         In January 2018, the Department changed its permanency goal to adoption by a relative because Mother had not alleviated the Department's initial concerns and had not fully participated in services. The trial court also permanently enjoined Father from, among other things, committing family violence against Mother or the children, threatening or stalking Mother and the children, or being within 500 yards of any of them.

         Also in January 2018, the trial court ruled in Rachel and Danny's case; it terminated Father's rights pursuant to an affidavit of relinquishment, but it did not terminate Mother's rights to the children. Instead, the trial court awarded joint managing conservatorship to Grandmother and Mother, ordered that the two would have possession of the children "at times mutually agreed to in advance" with Mother having no less than four hours of possession per week, and restricted the children's residence to their then-current school district until Mother and Grandmother could "properly and adequately transition the children to" Mother. The trial court also ordered Mother not to "allow any contact between the children and" Father.

         The trial court did not remove Zane and Andy from foster care to allow them to move to Wisconsin but increased Mother's weekly visitation to four hours per week--and up to eight hours if Mother chose to move to Wisconsin. Thereafter, she was to have Skype visitation with the children for fifteen minutes three times per week.

         Before the case had been pending a year, the trial court signed an order extending the statutory dismissal date for 180 days. See Tex. Fam. Code Ann. § 263.401.

         In March 2018, Mother was placed on deferred adjudication community supervision in Texas for felony child endangerment. Thereafter, Mother moved to Wisconsin.

         After moving back to Wisconsin, Mother never visited Zane and Andy in Texas; she was not able to find work until June or July 2018. Mother did not initiate her Skype calls with Zane and Andy before at least the end of April 2018, but by August 2018, she was making those calls on a regular basis.

         In July 2018, a Department caseworker and the CASA volunteer assigned to the case traveled to Wisconsin for a surprise visit to observe Mother's housing; Mother would not let them inside, went back inside for Rachel and Danny, told the worker and volunteer that she was on her way to the hospital to visit a friend, and left. Although Mother called several hours later to say that the landlord could let them inside, the caseworker and volunteer were already at the airport; they never saw Mother's apartment.

         In August 2018, CASA recommended that Mother's rights to Zane be terminated for her lack of progress on her service plan and for her "continued lack of accountability for her role in exposing [her children] to illegal narcotics."

         After an October 2018 bench trial, the trial court terminated Mother's and Father's rights to Zane. Father has not appealed.

         II. Standard of Review

         For a trial court to terminate a parent-child relationship, the Department must prove two elements by clear and convincing evidence: 1) that the parent's actions satisfy one ground listed in family code section 161.001(b)(1); and 2) that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b); In re E. N.C. , 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence is clear and convincing if it "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; E. N.C. , 384 S.W.3d at 802.

         To determine whether the evidence is legally sufficient in parental-termination cases, we look at all the evidence in the light most favorable to the challenged finding to determine whether a reasonable factfinder could form a firm belief or conviction that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume that the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved, and we consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to the finding if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See id.

         The factfinder is the sole judge of the witnesses' credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

         We must perform "an exacting review of the entire record" in determining the factual sufficiency of the evidence supporting the termination of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due deference to the factfinder's finding and do not supplant it with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide whether a factfinder could reasonably form a firm conviction or belief that termination of the parent-child relationship would be in the child's best interest. Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder reasonably could form such a firm conviction or belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18-19.

         III. Drug-Testing Testimony Legally Sufficient

         In Mother's first issue, she challenges the trial court's admission of John Tarver's testimony about the process used to perform her drug tests and the drug-test results, contending that both are conclusory and therefore legally insufficient evidence because the Department did not prove the reliability of the testing techniques under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). Mother does not independently challenge the sufficiency of the evidence to prove any of the conduct grounds for termination, presumably because the drug-test results, if valid, support all three conduct-related termination grounds.[6] But she does specifically argue that without the drug-test results, the Department failed to prove the best-interest ground for termination.

         A. Preservation

         The State proffered Tarver as "an expert as it pertains to the protocols of the lab, testing[, ] and the results of [the] drug testing." Although Mother's counsel objected to the timing of the State's calling Tarver as a witness, Mother did not object generally to Tarver's qualifications, [7] nor did she object to the reliability of Tarver's testimony or the drug-test results at trial. Mother contends on appeal that she did not need to object at trial to complain of the evidence's reliability because it is unreliable on its face.

         When a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by an expert, the challenging party must have timely objected at trial to raise the complaint on appeal. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). But when the party restricts its reliability challenge to the face of the record, "for example, when expert testimony is speculative or conclusory on its face," no objection is necessary to raise the issue on appeal. Id. Because Mother contends Tarver's testimony and the drug-test results are conclusory and speculative because they are facially unreliable, we will review her issue. See id.

         B. Evidence at Trial

         In his opening statement, Mother's counsel told the trial court that the testing results were inadequate to "really prove that she is either ingesting or maintaining a drug addiction problem" and that Mother would swear she had not ingested anything for over two years: "The testing will prove that that's accurate." Mother's explanation for the April 2017 drug-test results was that she was having sex with the children's father, that he was the one using drugs, and that she and the children must have tested positive because they had been around him. Mother also testified that her hair had always grown very slowly.

         Tarver testified that he was the lab manager in the employee-services business unit of Quest Diagnostics in Lenexa, Kansas, and was also an "alternate responsible person" for regulated samples. His unit had both federal and state accreditations and would have gone through twelve inspections that year. He at one time had been a diplomate of the American Board of Forensic Toxicology and has been doing drug screens since 1986. He had to complete continuing education every year. Tarver had "been bench tech all the way to technical director to . . . supervisor," and has bachelor's degrees in biology and chemistry, as well as a master's degree in biomedical sciences. At the lab, he was responsible for "everything in the laboratory operations . . . from extraction for a receipt [involving isolating a substance so that it can be tested on the machines] and chain of custodies and extractions." His lab ran "about 30, 000 samples a day." Tarver acknowledged that labs have small differences in the way they perform procedures but that they "have to be very close to the same." For instance, labs can use different types of mass spectrometers.

         Tarver explained that every day the lab calibrates every batch on an instrument using quality controls of known accurate samples. Although the acceptable range can vary for a quality control, the cutoff decision point for the presence of a substance does not change; for cocaine, the decision point is 300 picograms per milligram.

         Tarver testified about three of Mother's hair-strand specimens that the lab tested. He did not prepare all of the samples, but he did complete the final review of them, and he prepared the business-records affidavit for their admission. In his final review, he looks "to make sure that everything was done properly, that all the chain of custodies were kept, that [the sample's] being reported properly, where it's stored, everything in entirely the whole package."

         Tarver testified that the hair strands were screened first to

make sure that [the sample's] packaged like it's supposed to be. And if it's not, we will reject it at that point. But if it is, it goes on to testing. We -- initially, . . . first, we . . . measure 3.9 centimeters of hair, which would be the closest up to the scalp. So from there out, we do 3.9 centimeters. And then cut that up finer than that. Then we weigh that out, weigh parts of that out to -- so that we can go and take it into a screening procedure.

         Before testing the hair, the lab washes it to eliminate substances people put on their hair and environmental exposure because both can interfere with the testing instruments.

         After the lab prepares a hair sample, it uses CEDIA, an immunoassay, to test the hair strand, then "[i]f that testing comes back positive . . ., it's only presumptive[ly] positive." The lab does not report that result. If a hair tests presumptively positive, the lab takes another sample of the same hair, washes it, heats it, makes it a gel, and then "extract[s] it into solvents." Then, according to Tarver, "we take those solvents and we dry them down, and then we bring them back up because we concentrated it some doing that, and then we will run them on a mass spectrometer," which "gives us a specific result." The result the lab reports is from the mass spectrometer.

         Tarver's lab performed this procedure for all three of Mother's hair samples, which Tarver testified is a standard and accepted practice in the scientific community for testing for cocaine. All of the lab's technicians who performed the tests are properly trained to perform these procedures and receive ongoing and updated training. Tarver did not know of an acceptable rate of error for this type of test because the mass spectrometer gives "a very specific answer, as far as what compound is present." The lab's GC mass spectrometer used for all three tests is, according to Tarver, properly maintained and calibrated.

         Mother's and Zane's April 2017 tests were positive for cocaine and benzoylecgonine, a cocaine metabolite, [8] and Mother's November 2017 test was positive for cocaine. Specifically, Mother's April 2017 result contained 13, 247 picograms per milligram of cocaine and 829 picograms per milligram of benzoylecgonine, and her November 2017 result contained only 899 picograms per milligram of cocaine. Zane's April 2017 test showed 17, 780 picograms per milligram of cocaine and 2, 757 picograms per milligram of benzoylecgonine. Tarver did not know if a picogram was a standardized measure for hair tests in other labs.

         On cross-examination, Tarver testified that for a cocaine test result to be considered positive, it must also have at least 50 picograms per milligram of benzoylecgonine or another cocaine metabolite.[9] He acknowledged that errors are possible and that since 1985, "[j]ust about everything" in the industry had changed; for example, the technology had improved and different chemicals are used. Tarver acknowledged overhearing "things . . . in the industry that are giving hair results a . . . bad name," but qualified that "[i]t's usually things that are incorrectly . . . described or spoken." According ...

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