Opinion
NO. 02-16-00284-CV
01-26-2017
IN THE INTEREST OF A.S., A CHILD
FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 324-575353-15 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellants R.S. (Father) and C.D. (Mother) appeal the termination of their parental rights to their daughter A.S. (Ann). Because we conclude that the evidence was legally and factually sufficient to support the required termination findings, we affirm the trial court's order of termination.
We use aliases to refer to the interested parties to this appeal. See Tex. Fam. Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8.
I. BACKGROUND
A. ANN'S FIRST TWO YEARS OF LIFE AND FATHER'S CONFINEMENT
Father, who was married, began an extramarital affair with Mother. Their daughter Ann was born in September 2010. Between Ann's birth and 2013, Father saw Ann every day and provided for her although Ann lived with Mother. Father believed he was Ann's sole support system. But on March 12, 2013, when Ann was two years old, Father committed aggravated robbery of a man Mother was living with, Dan Harper. This was not Father's first criminal offense: Father's criminal history stretched back to 1991 and included several felonies.
After Father was released on bond, he became concerned about Ann's living conditions because Mother lived with her brother David Durham and Harper, both of whom drank alcohol and used drugs, and because Father had been Ann's sole financial support. Father stated that he contacted a Department of Family and Protective Services (DFPS) investigator about these concerns but that DFPS did not respond. After Father's bond was increased four days after his release, he again was arrested, which was the last time Father saw Ann. Father pleaded guilty to the aggravated robbery with a deadly weapon of Harper and, on April 8, 2013, was sentenced to fifteen years' confinement.
While incarcerated, Father has participated in on-the-job training programs, attended Alcoholics Anonymous meetings, and enrolled in marriage and parenting classes. Father also became a "full-time church member" and began faith-based counseling.
B. DFPS INVESTIGATION AND PETITION TO TERMINATE
In May 2015, Keriann Wellinghoff, a DFPS investigator, began investigating a neglectful-supervision allegation involving Ann "by the hand of her mother and [Mother's] paramour at that time, due to concerns of methamphetamine use and sales." Wellinghoff could not locate Mother until June 18, 2015, when Mother was at the courthouse for an eviction proceeding. Mother told Wellinghoff that Ann was with Mother's sister-in-law and that Father would be in prison until 2028. Mother averred that she stopped using drugs in 2009, but refused to take a drug test when Wellinghoff requested one. Mother also provided information to Wellinghoff about two of her prior convictions and about her other children.
On June 9, 2014, Mother pleaded guilty to theft, with two prior theft convictions, and was sentenced to one year's confinement. On November 7, 2007, Mother pleaded guilty to possession with intent to deliver four or more grams but less than 200 grams of methamphetamine and was sentenced to five years' confinement.
Mother had had four children—two teenagers who lived with their father, a child who had been removed when Mother and the child's father were both incarcerated and who had since been adopted, and Ann.
Wellinghoff continued to have difficulty locating Mother and had to seek a court order to gain access to Ann through the appointment of an investigator to locate Mother. Once Wellinghoff located Mother and got access to Ann, she took Ann to the hospital to ensure that she was healthy. Ann tested positive for amphetamine and methamphetamine on July 10, 2015, when she was four years old. Wellinghoff had Mother agree to put Ann "in a . . . child safety placement" with Ann's great-aunt and -uncle. Although Mother told Wellinghoff she would "work[] [DFPS] services to ultimately get [Ann] returned back to her care," Mother did nothing. After Wellinghoff's investigation, she found there was reason to believe that Mother and her girlfriend neglectfully supervised Ann based on Mother's criminal history, Ann's positive drug test, and a lack of substantiation for Mother's assertion that she was not using drugs.
DFPS filed a petition to terminate on August 27, 2015. DFPS alleged several grounds in support of terminating both Mother's and Father's parental rights to Ann. After granting an emergency removal, the court appointed DFPS temporary managing conservator of Ann. In October 2015, Ann began living with Daria, Father's sister, and Daria's husband, Herbert.
Shortly after DFPS filed its petition, Mother called Wellinghoff and told her that she had separated from her girlfriend because she had choked Mother and dragged her down the street when Mother tried to escape. Mother said she had sought a protective order and wanted to focus on getting Ann back. Mother's service plan assigned her several tasks, including visitation with Ann, proof of her income, participation in individual counseling, random drug testing, and a substance-abuse assessment. Father also was assigned tasks to complete but many noted that they would be performed "[u]pon release from incarceration." The service plan also reflected that Father was "incarcerated and will be unable to work services outside of confinement" and that DFPS would "assist [Father] in establishing minimum safety and will schedule him for those services."
Brenda McDade, a DFPS caseworker assigned to Ann's case in January 2016, believed Mother had failed to show that she could provide Ann with a safe and stable place to live. Mother had not visited Ann at any time between January 2016 and July 2016 and had failed to stay in contact with McDade or Wellinghoff. McDade "did a finders search [for Mother] which helps the Department be able to locate missing parents" which proved unsuccessful. Accordingly, McDade could not determine whether Mother had a job, had an income source to provide for Ann, or understood Ann's needs. McDade was unable to arrange for any services for Father while in prison and agreed that he could not show that he could complete the assigned tasks in the service plan because he was incarcerated. Father attempted to send letters to Ann through McDade, but McDade delivered only "a couple" because she was waiting for a therapist to review the letters to Ann and introduce them to her in a therapeutic environment. Ann continued to live with Daria and Herbert through the date of trial. She bonded with her caregivers and formed a relationship with them in a stable environment.
C. THE TRIAL
The bench trial on DFPS's petition occurred on July 26 and 27, 2016. Although Mother was represented by counsel, Mother did not appear for the trial, nor could her counsel locate her. Father attended trial pursuant to a bench warrant and testified that he would be eligible for parole review in 2020.
Father stated that his rights should not be terminated because he loved Ann very much, wanted to start taking care of her "just where [he] left off," and wanted to provide her everything that she needed. Father said he was a recovering alcoholic and was on "step three," but he acknowledged that he did not know all of the steps. He also admitted that he had no money in savings. Upon his release from prison, which could be as early as 2020 or as late as 2028, Father's stated plan at trial was to resume caring for Ann, work for his brother Ian, and pay for Ann's college tuition.
Father acknowledged that it was unfair to Ann, who had not seen him since April 2013 when she was two years old, to have to wait until at least 2020 to have a father. He had no idea whether Ann was currently being well taken care of, what grade she was in, or what her favorite color was. Father stated that he would prefer for Ian or his other sister Rachel to care for Ann rather than his sister Daria and her husband. Father said that he was closer to Ian and Rachel, that he did not think Daria and Herbert were "good people," and that the termination trial was the first time he had seen Daria in "probably around 25 years." Father believed that Daria was unsupportive of him but that Ian, Rachel, and his parents were. He further believed that Daria was aligned with DFPS and against him, causing him to fear for Ann's safety.
Daria testified that she and Herbert wanted to adopt Ann. They had been married for thirty-six years and had three grown children. Daria had health problems, but several family members were willing to help her with Ann. When Ann came to live with Daria and Herbert, she was very timid, would not talk, would not let anyone touch her, hardly ate anything, and only wanted to eat ice cream and chips. Since living with Daria and Herbert during the nine months before trial, Ann had become more outgoing, more playful, and more willing to eat a varied diet. Daria testified that Ann did not know Father.
Rachel testified that she was willing to take care of Ann and that Ann would have her own room in Rachel's two-bedroom home. Rachel acknowledged that her long-term boyfriend had a criminal history. Rachel said that her concern if the court left Ann with Daria would be that Daria, who required dialysis, could die. Rachel said she would help Herbert take care of Ann if Daria had a kidney transplant, but she believed Ian was a better placement for Ann. Rachel was in favor of Father's retaining his parental rights to Ann "[b]ecause he was a wonderful father to her" when he was not incarcerated.
Ian also expressed concern about Daria's health and believed that Daria and Herbert were too strict with Ann. Ian testified that he would be willing to help Daria and Herbert with Ann. Ian said that he would hire Father when Father was released from prison, that Father could live with him, and that he would help support Father and Ann financially. Ian testified to his own criminal history, which included a "gun case," a conviction for the manufacture and delivery of a controlled substance, a DWI, and an arrest "for alcohol." Ian stated he has not been in any further trouble since his release from prison in July 2004 and that he and his wife were willing to take care of Ann. Like Rachel and Father, Ian did not think Father's parental rights should be terminated. But Ian agreed that it was unfair for Ann to wait at least until 2020 to have a father in her life.
McDade similarly testified that Ann should not have to wait for Father to be released from prison to have a father. She stated that despite knowing Daria had health issues that might require surgery, she did not believe Ann should be removed from her current home. Ann had bonded with Daria and Herbert, and McDade saw that their home was a stable environment. Removing Ann from Daria and Herbert's home would create upheaval for Ann. McDade believed it would be in Ann's best interest to terminate Father's and Mother's parental rights.
At the conclusion of the trial, Ann's attorney ad litem was asked by the trial judge to give a report as to the best interest of the child. The attorney ad litem expressed confidence that Daria and Herbert would receive support from the "huge family" in this case in the event that Daria's health issues necessitated help. She concluded that it was in the best interest of Ann that the parental rights of both parents be terminated so that she could be placed for adoption and that Ann should remain in the home of Daria and Herbert where she was "extremely happy."
D. GROUNDS TO TERMINATE
The trial court terminated both Mother's and Father's parental rights to Ann on July 27, 2016. It found that terminating Mother's parental rights was in Ann's best interest and that Mother had constructively abandoned her. See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (b)(2) (West Supp. 2016). It found that terminating Father's parental rights was in Ann's best interest and that he had endangered her (1) by knowingly placing or knowingly allowing her to remain in conditions or surroundings that endangered her physical or emotional wellbeing; (2) by engaging in conduct or knowingly placing her with persons who engaged in conduct that endangered her physical or emotional wellbeing; and (3) by knowingly engaging in criminal conduct that resulted in his conviction, imprisonment, and inability to care for Ann "for not less than two years from the date of filing the petition." Id. § 161.001(b)(1)(D), (E), (Q), (b)(2). The trial court appointed DFPS as Ann's permanent managing conservator.
Both Mother and Father appeal. Mother argues that the evidence was legally and factually insufficient to show that she constructively abandoned Ann or that termination was in Ann's best interest. Father argues that the evidence was legally and factually insufficient to support the trial court's finding that termination of his parental rights was in Ann's best interest. He also argues that the trial court abused its discretion by admitting Ann's drug-test results over his objection.
II. TERMINATION OF PARENTAL RIGHTS
A. STANDARDS AND SCOPE OF REVIEW
Parental rights implicate constitutional concerns; thus, we strictly scrutinize termination proceedings and strictly construe involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re E.R., 385 S.W.3d 552, 554-55 (Tex. 2012). We are cautioned, however, that although parental rights are of a constitutional dimension, we may not sacrifice the emotional and physical interests of the child on the altar of those parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Termination decisions must be supported by clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b), § 161.206(a) (West 2014); E.N.C., 384 S.W.3d at 802. 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 (West 2014); E.N.C., 384 S.W.3d at 802. As such, for a trial court to terminate a parent-child relationship, the party seeking termination must establish by clear and convincing evidence that the parent's actions satisfy one ground listed in family code section 161.001(b)(1) and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
1. Legal Sufficiency
In evaluating the evidence for legal sufficiency in parental-termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the challenged ground for termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the light most favorable to the finding and judgment. Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved. Id. We are to consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See id.
We cannot weigh witness credibility issues that depend on the appearance and demeanor of the witnesses because that is the factfinder's province. Id. at 573-74. And even when credibility issues appear in the appellate record, we defer to the factfinder's determinations as long as they are not unreasonable. Id. at 573.
2. Factual Sufficiency
We are required to perform "an exacting review of the entire record" in determining whether the evidence is factually sufficient to support the termination of a parent-child relationship under section 161.001(b). In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In reviewing the evidence for factual sufficiency, we give due deference to the factfinder's findings and do not supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Evidence is factually sufficient if "the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." C.H., 89 S.W.3d at 25. In reviewing that evidence, however, we must "fully account for the evidence that supported the [factfinder's] verdict" and may not "disregard[] evidence that the [factfinder] presumably considered clear and convincing." Id. at 27-28.
3. Sufficiency in the Context of the Best-Interest Finding
The sufficiency of the evidence to support a best-interest finding may include consideration of several nonexclusive factors, including (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 which 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. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (stating that in reviewing a best interest-finding, "we consider, among other evidence, the Holley factors"). These factors are not exhaustive, and some listed factors may be inapplicable to some cases. E.C.R., 402 S.W.3d at 250; C.H., 89 S.W.3d at 27. And "[w]hile it is true that proof of acts or omissions under section 161.001[(b)](1) does not relieve the petitioner from proving the best interest of the child [under section 161.001(b)(2)], the same evidence may be probative of both issues." C.H., 89 S.W.3d at 28.
B. MOTHER
1. Constructive Abandonment
In her first issue, Mother challenges the legal and factual sufficiency of the evidence to support the trial court's constructive abandonment finding under section 161.001(b)(1)(N). To establish constructive abandonment, DFPS had to prove by clear and convincing evidence that: (1) Mother had "constructively abandoned [Ann,] who ha[d] been in [DFPS's] permanent or temporary managing conservatorship . . . for not less than six months"; (2) DFPS made reasonable efforts to return Ann to Mother; (3) Mother had not regularly visited or maintained significant contact with Ann; and (4) Mother had demonstrated an inability to provide Ann with a safe environment. Tex. Fam. Code Ann. § 161.001(b)(1)(N).
The State's preparation and administration of a service plan for the parent constitutes evidence that the State made reasonable efforts to return the child to the parent. In re M.R.J.M., 280 S.W.3d 494, 505 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh'g). Therefore, the trial court could have reasonably formed a firm belief or conviction, based on DFPS's family service plan for Mother, that DFPS had made reasonable efforts to return Ann to her, satisfying the second element of constructive abandonment. See id.
McDade testified that Mother did not visit Ann at all during the six months before trial. Additionally, Ann tested positive for amphetamine and methamphetamine while in Mother's care, and Mother was involved in eviction proceedings. See In re K.G., 350 S.W.3d 338, 355 (Tex. App.—Fort Worth 2011, pet. denied) (holding that trial court could have chosen to believe that Mother's housing instability, among other things, supported the "safe environment" element of constructive-abandonment finding). Mother had also refused to take any drug tests after DFPS began investigating her for negligent supervision, and she essentially dropped out of the case by January 2016. She told Wellinghoff that her brother—who Father testified was into drugs and alcohol—was her sole support, and she was involved in an abusive relationship when Wellinghoff located her. Finally, Mother did not appear for the trial, and her counsel could not locate her. This evidence supported the remaining three statutory elements of constructive abandonment.
Viewed in the light most favorable to the finding and the judgment, we conclude that the evidence is legally sufficient to support the constructive-abandonment finding. See J.P.B., 180 S.W.3d at 573; In re H.R., 87 S.W.3d 691, 699 (Tex. App.—San Antonio 2002, no pet.). We also conclude that the evidence was factually sufficient to support the finding that Mother had constructively abandoned the child. See K.G., 350 S.W.3d at 353-55; In re R.M., No. 14-02-00221-CV, 2003 WL 253291, at *5 (Tex. App.—Houston [14th Dist.] Feb. 6, 2003, no pet.) (mem. op.). We overrule Mother's first issue.
2. Best Interest
In her second issue, Mother argues that the evidence was legally and factually insufficient to support the trial court's finding that termination of her parental rights was in Ann's best interest. She points to DFPS's failure to present any evidence of Ann's desires, failure to address which of Ann's emotional and physical needs Mother would be unable to meet, and failure to proffer any evidence that showed she was incapable of parenting the child.
However, the record reflects that Mother became aware of DFPS's investigation at least by June 18, 2015, when Wellinghoff spoke with her at her eviction proceeding. Mother then refused to make Ann available to DFPS until Wellinghoff secured a court order eight days later that appointed a special investigator to locate Mother and granted access to Ann. After Mother and Ann were located again, Ann tested positive for amphetamine and methamphetamine. After DFPS filed its petition, Mother told Wellinghoff that she had broken up with her girlfriend after she choked Mother and dragged her into the street. None of Mother's other children lived with her, and one of them had been adopted after her removal from Mother and that child's father while the parents were incarcerated.
Mother did not visit Ann at all during the six months before trial, and DFPS had been unable to locate Mother during that time. Because of Mother's absence, McDade had not been able to observe interactions between Mother and Ann that would show whether Mother understood Ann's present or future needs. Father testified that he had provided all of Ann's financial support until he was incarcerated because Mother did not work. Therefore, although Mother argues that "no evidence was offered to show that the child was ever physically abused, or ever less than clothed, fed, and happy while in [her] care and custody," the child's positive drug test, Mother's involvement with a violent domestic partner, and Mother's having gone through eviction proceedings only a month or so before the case began contradict her portrayal of Ann's first few years of life.
This evidence and Mother's failure to visit Ann during the six months preceding trial, contradict her assertion on appeal that she would be able to meet the child's emotional and physical needs in the future. See, e.g., In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.) ("A parent's drug use, inability to provide a stable home, and failure to comply with his family service plan support a finding that termination is in the best interest of the child."). The record, although limited with regard to Mother's parenting skills and her plans for the child—mostly due to Mother's own actions—shows sufficient evidence under both the appropriate legal and factual sufficiency standards to support the trial court's best-interest finding with regard to Mother. Therefore, we overrule Mother's second issue.
C. FATHER
In his appeal, Father does not challenge the three subsection (b)(1) grounds upon which the trial court terminated his parental rights—endangerment by knowingly placing or knowingly allowing Ann to remain in conditions or surroundings that endangered her physical or emotional well-being, endangerment by engaging in conduct or knowingly placing Ann with persons who engaged in conduct that endangered her physical or emotional well-being, and knowingly engaging in criminal conduct that resulted in his conviction and imprisonment for an offense and inability to care for the child for not less than two years from the date of filing the petition. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (Q). Instead, Father challenges the trial court's best-interest finding under section 161.001(b)(2) and directs us to evidence that he provided shelter, food, and necessities for Ann after she was born and prior to his latest convictions and imprisonment; that he spent every day with her before he was arrested; that he used the resources available to him in prison; and that he did not know Mother used drugs. He argues that there is no evidence relating to Ann's desires and contends that Daria's health concerns make her a less appropriate caregiver than Ian despite lan's criminal history.
Father participated in several self-improvement programs while incarcerated, including Alcoholics Anonymous and parenting classes, and began attending church. Father testified that before his most recent incarceration when Ann was two years old, he provided for her and saw her every day. Upon his release from prison, which could be as early as 2020 or as late as 2028, Father's stated plan at trial was to resume caring for Ann, work for his brother Ian, and pay for Ann's college tuition.
Father and Ian testified that while the family was divided on which household Ann should live in, they both agreed that it was not fair for Ann to wait until at least 2020 to have a father. The objective of the Texas child-protection system is to provide permanency and stability to some of our most vulnerable citizens. See Tex. Dep't of Family & Protective Servs. v. Dickensheets, 274 S.W.3d 150, 157-58 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Requiring Ann to wait at least three years before she has either does not promote that objective. See generally C.H., 89 S.W.3d at 26 ("Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.").
Father has an extensive and violent criminal history. Before Ann was born in September 2010 and beginning in 1991, Father had committed and been convicted of felony driving while intoxicated (DWI), two misdemeanor DWIs, possession of cocaine, and aggravated robbery with a deadly weapon. He also was indicted for a felony DWI that had occurred on November 7, 2009. After Ann's birth, Father believed he was her main support system. Even so, on March 12, 2013, Father committed aggravated robbery with a deadly weapon, using a knife and placing Harper, a man with whom Mother was residing, in fear of imminent bodily injury or death. Father pleaded guilty to this offense but testified at the termination trial that he did so "under duress." On the same day Father was sentenced to fifteen years' confinement for the aggravated robbery of Harper, he pleaded guilty to the 2009 felony DWI and was sentenced to a concurrent fifteen-year term.
Several witnesses testified that termination of Father's parental rights was in Ann's best interest: Daria, McDade, and Ann's attorney ad litem. During the nine months Ann had lived with Daria and Herbert, Ann had improved, becoming more outgoing and playful. Ann did not know Father but had bonded with Daria and Herbert. Daria and Herbert wanted to adopt Ann to allow her to "move on with her life" and "have a stable place."
Father does not dispute that clear and convincing evidence showed that his conduct regarding Ann was prohibited by section 161.001(b)(1)(D), (E), and (Q). See Tex. Fam. Code Ann. § 161.001(b)(1). These grounds are some evidence of the best-interest factor as well. See C.H., 89 S.W.3d at 28. Father committed his most recent aggravated robbery with a deadly weapon even though he believed he was Ann's sole support system, which could lead a factfinder to the reasonable conclusion that Father was incapable of escaping his historically proven pattern of criminal conduct and prioritizing Ann's needs above his own impulsive behaviors. And he continued to refuse to take responsibility for his actions leading to his most recent conviction. Further, while he was released on bond after his arrest for the aggravated robbery of Harper, he made no arrangements for Ann's care even though he was concerned about her living conditions at that time. Ann improved in Daria and Herbert's care and had bonded with them. Ann had not seen Father since she was two years old, and she would be nine years old at Father's earliest possible release date. McDade and Ann's attorney ad litem testified to the myriad benefits for Ann if she were adopted by Daria and Herbert.
The evidence, viewed in the light most favorable to the best-interest finding, could have reasonably allowed the factfinder to form a firm belief or conviction that termination of Father's parental rights would be in Ann's best interest. See J.P.B., 180 S.W.3d at 573-74; In re R.A.G., No. 08-16-00178-CV, 2017 WL 105131, at *4-5 (Tex. App.—El Paso Jan. 11, 2017, no pet. h.); In re D.S.O., No. 04-14-00061-CV, 2014 WL 2802931, at *7 (Tex. App.—San Antonio June 18, 2014, no pet.) (mem. op.). This same evidence, which the factfinder presumably considered clear and convincing, is factually sufficient to support the best-interest finding as to Father. See, e.g., In re K.W., No. 12-14-00327-CV, 2015 WL 881548, at *5 (Tex. App.—Tyler Feb. 27, 2015, pet. denied) (mem. op.); Gibbs v. Tex. Dep't of Family & Protective Servs., No. 03-11-00320-CV, 2012 WL 2979048, at *14 (Tex. App.—Austin July 19, 2012, no pet.) (mem. op.); In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.); In re N.S.G., 235 S.W.3d 358, 369 (Tex. App.—Texarkana 2007, no pet.); In re T.J.R., No. 2-06-345-CV, 2007 WL 614085, at *6-7 (Tex. App.—Fort Worth Mar. 1, 2007, no pet.) (mem. op.); In re S.M.L., 171 S.W.3d 472, 480-81 (Tex. App.—Houston [14th Dist.] 2005, no pet.). We overrule Father's second issue.
III. ADMISSION OF EVIDENCE
In his first issue, Father argues that the trial court abused its discretion by admitting Ann's medical records because they were insufficiently reliable and contained hearsay. At trial, DFPS offered Ann's medical records from the hospital visit into evidence. The records included Ann's positive drug test, which had been conducted by a third-party company. Father objected to their admission because the drug-test result included in the records was hearsay, lacked evidence showing the appropriate chain of custody, and was not sufficiently sponsored through expert testimony. The trial court overruled the objections and admitted the records, including the drug-test result.
But even assuming error in the admission of the drug-test result, we cannot conclude that its admission probably caused the rendition of an improper termination judgment against Father or that its admission probably prevented Father from properly presenting his appeal to this court. See Tex. R. App. P. 44.1(a). To determine harm under rule 44.1(a), we must review the entire record, "considering the 'state of the evidence, the strength and weakness of the case, and the verdict.'" Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008) (quoting Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 841 (Tex. 1979)). "[A]dmission . . . is likely harmless if the evidence was cumulative, or if the rest of the evidence was so one-sided that the error likely made no difference." Id. at 873 (footnotes omitted). In other words, a "successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence . . . admitted." Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).
Father recognizes that the drug-test result occurred during a period of time well after he was in prison and was not offered to prove a section 161.001(b)(1) ground or best interest under section 161.001(b)(2) as to Father. Nevertheless, Father asserts he was harmed because the test result factored into the trial court's best-interest determination and in the findings that Father's acts or omissions violated section 161.001(b)(1).
Father does not challenge the sufficiency of the evidence to support the trial court's findings under section 161.001(b)(1). Accordingly, we cannot conclude that the admission of the drug test probably caused the rendition of an improper judgment on those acts or omissions. Father concedes on appeal that the evidence supports those findings, preventing a conclusion that the drug test result probably led to an erroneous section 161.001(b)(1) finding. Similarly, we cannot conclude that the admission of the drug test probably caused the trial court to err by finding that termination of Father's parental rights was in Ann's best interest. We have detailed the sufficient evidence supporting this finding, all of which was separate and apart from Ann's positive drug test. In other words, the error, if any, likely made no difference to the trial court's best-interest determination as to Father. See In re C.C., 476 S.W.3d 632, 638 (Tex. App.—Amarillo 2015, no pet.); In re D.O., 338 S.W.3d 29, 37-38 (Tex. App.—Eastland 2011, no pet.); see also Nat'l Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 410 (Tex. App.—Amarillo 2003, pet. denied) (holding erroneous admission of evidence in bench trial does not warrant reversal when other record evidence supports trial court's decision). We overrule Father's first issue.
IV. CONCLUSION
Having overruled Mother's and Father's issues, we affirm the trial court's order of termination.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ. SUDDERTH, J., filed a concurring and dissenting opinion. DELIVERED: January 26, 2017