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In re E.B.

Court of Appeals of Texas, Eleventh District

August 22, 2019

IN THE INTEREST OF E.B. AND M.B., CHILDREN

          On Appeal from the 326th District Court Taylor County, Texas Trial Court Cause No. 8773-CX

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [2]

          MEMORANDUM OPINION

          JOHN M. BAILEY CHIEF JUSTICE

         The trial court entered an order in which it terminated the parental rights of the parents of E.B. and M.B. The mother filed an appeal. On appeal, she presents one issue in which she challenges the sufficiency of the evidence to support the trial court's best interest finding and one issue in which she complains that drug-test results were improperly admitted into evidence. We affirm.

         Termination Findings and Standards

         Appellant argues that the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights was in the best interest of her children. Termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2018). To determine on appeal if the evidence is legally sufficient in a parental termination case, we review all of the evidence in the light most favorable to the finding and determine whether a rational trier of fact could have formed a firm belief or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is factually sufficient, we give due deference to the finding and determine whether, on the entire record, a factfinder could reasonably form a firm belief or conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).

         To terminate parental rights, it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in Section 161.001(b)(1)(A)-(U) and that termination is in the best interest of the child. Fam. § 161.001(b). In this case, the trial court found that Appellant had committed three of the acts listed in Section 161.001(b)(1)-those found in subsections (D), (E), and (O). Specifically, the trial court found that Appellant had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the children's physical or emotional well-being; that Appellant had engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being; and that Appellant had failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children, who had been in the managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parents for abuse or neglect. Appellant does not challenge these findings, but she does challenge the trial court's finding that termination is in the children's best interest. See id. § 161.001(b)(2). Accordingly, we will uphold the order of termination if the evidence is sufficient to support the best interest finding.

         With respect to the best interest of a child, no unique set of factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.-Eastland 2010, pet. denied). But courts may use the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These include, but are not limited to, (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the 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 these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id. Additionally, evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. C.J.O., 325 S.W.3d at 266.

         Background Facts

         The Department originally became involved with the children in this case after an intake that involved bruises and bug bites on the mother's youngest child, J.W., and allegations of drug use by the mother. At that time, J.W. tested positive for methamphetamine. Appellant had no explanation for J.W.'s test result and agreed to submit to drug testing herself and to take her other two children, nine-year-old E.B. and five-year-old M.B, for drug testing. Appellant failed to do so, and the trial court eventually ordered drug testing for E.B. and M.B. E.B. was positive for amphetamines and methamphetamine, and M.B. was positive for methamphetamine.

         E.B. and M.B. lived with Appellant, but Appellant denied that she had ever done drugs around the children. Appellant suggested that the children may have been exposed to drugs when she took the children with her to a friend's house. As a result of the children's positive drug tests, the children were removed from Appellant's care, and a court-ordered family service plan was instituted. We note that J.W. was no longer part of this suit at the time of the final hearing regarding E.B. and M.B.

         As part of the service plan, Appellant was required to submit to random drug testing. According to the conservatorship caseworker, the Department had requested that Appellant submit to a drug test ten to fifteen times, but Appellant did so only four times. And when Appellant did submit to testing, she tested positive for methamphetamine or for methamphetamine and amphetamines.

         Appellant testified that she had quit using drugs, but she acknowledged, however, that she did not do so until about one year after her children were removed from her care. Appellant disputed the caseworker's suggestion that Appellant had refused to drug test when requested; Appellant denied that she had ever refused to submit to a random drug screen. She testified that she had recently been submitting to random drug tests at Serenity House as part of an outpatient treatment program. Appellant's counselor at Serenity House told the conservatorship caseworker that Appellant had submitted to a urinalysis during the month before trial and that the results of that test were negative. The Department requested that Appellant submit to a hair follicle test, but according to the caseworker, Appellant did not comply with that request.

         The record reflects that Appellant completed some of the tasks in her service plan and had recently obtained a suitable home. The mother, however, had not communicated with the Department in several months and had not maintained suitable employment. Additionally, the mother had not visited the children in more than four months; ...


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