Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 158th District Court Denton County, Texas
Trial Court No. 17-2885-158
Kerr, Pittman, and Birdwell, JJ.
appeals the trial court's order terminating her parental
rights to her child Zane. 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.
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, 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.
April 2017, Zane was eleven months old and living with
Mother,  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
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
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.
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.
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,  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
Department also moved for a temporary restraining order
against Father because he had threatened the caseworkers with
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.
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.
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"
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.
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.
March 2018, Mother was placed on deferred adjudication
community supervision in Texas for felony child endangerment.
Thereafter, Mother moved to Wisconsin.
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.
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.
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
an October 2018 bench trial, the trial court terminated
Mother's and Father's rights to Zane. Father has not
Standard of Review
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.
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
factfinder is the sole judge of the witnesses'
credibility and demeanor. In re J.O.A., 283 S.W.3d
336, 346 (Tex. 2009).
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.
Drug-Testing Testimony Legally Sufficient
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. But she does specifically
argue that without the drug-test results, the Department
failed to prove the best-interest ground for termination.
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,  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.
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.
Evidence at Trial
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.
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.
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.
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
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.
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.
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
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.
and Zane's April 2017 tests were positive for cocaine and
benzoylecgonine, a cocaine metabolite,  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.
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. 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 ...