Opinion
NO. 14-17-00597-CV
01-04-2018
IN THE INTEREST OF L.M.R., A CHILD
On Appeal from the 314th District Court Harris County, Texas
Trial Court Cause No. 2016-05134J
MEMORANDUM OPINION
The trial court terminated the parental rights of Mother and Father (appellant N.R.) with respect to their daughter, Leah, and appointed the Texas Department of Family and Protective Services (the Department) to be Leah's managing conservator. On appeal, Father challenges the sufficiency of the evidence to support termination. We conclude legally and factually sufficient evidence supports the trial court's findings that Father endangered Leah and that termination of the parent-child relationship is in Leah's best interest. Therefore, we affirm the trial court's judgment.
Leah is a pseudonym. See Tex. R. App. P. 9.8(b)(2).
BACKGROUND
A. Removal
The following facts come from the affidavit of Department investigative caseworker Courtnae Milladge.
In July 2016, the Department received a referral alleging negligent supervision of two-year-old Leah by Mother. The reporter said Leah had abscesses on her left breast and right leg. Mother was said to be using drugs and was not providing Leah with a stable living environment. Father did not live with Mother or Leah at the time of the referral or at any time during the Department's investigation. The reporter noted a history of domestic violence in the relationship between Mother and Father.
Mother's parental rights had been terminated with respect to five other children. She relinquished her rights to four of them. Her rights with respect to the fifth child were terminated based on findings that Mother endangered and constructively abandoned that child.
Milladge visited Mother and Leah at the home of Leah's maternal grandfather, where the two had been living with the grandfather and his roommate. Leah's wounds appeared properly dressed and medicated. She seemed to feel fine and be in good spirits. Mother submitted to a urinalysis a few days later and tested negative for all drugs. However, she had tested positive in previous cases with the Department involving her other five children. Mother voluntarily placed Leah with a friend, S.G., on August 4.
On August 15, a hair follicle drug test revealed Mother was positive for marijuana and cocaine. Milladge contacted S.G. on August 29. S.G. said Mother occasionally texted her to check on Leah but otherwise had not made real contact.
The Department formally removed Leah from Mother's care on September 21, 2016 and filed this lawsuit the same day, attaching Milladge's affidavit to the original petition. The trial court signed an order allowing the removal and naming the Department as Leah's managing conservator. Leah remained living with S.G.
B. Family service plan
Following a full adversary hearing, the trial court signed an order requiring Father to comply with any family service plan by the Department. The service plan would identify the goals he needed to achieve and tasks and services he needed to complete before Leah could be placed in his care.
Mother was not given a service plan. Because her parental rights with respect to another child were previously terminated under subsection D or E of section 161.001(b)(1) of the Family Code, the trial court was permitted to and did find that Mother subjected Leah to "aggravated circumstances." See Tex. Fam. Code Ann. § 262.2015(b)(5) (West 2014 & Supp. 2017). That finding authorized the trial court to waive the requirements that the Department create a service plan for Mother and make reasonable efforts to return Leah to Mother. Id. § 262.2015(a).
The goals stated in the service plan included: (1) being willing and able to protect Leah from harm and to provide basic necessities such as food, clothing, shelter, and medical care for her; (2) accepting responsibility as a parent; and (3) showing concern for Leah's future safety.
So that he could accomplish those goals, the Department's service plan for Father required him to, among other things: (1) complete a substance abuse assessment and follow the assessor's recommendations; (2) submit to random drug testing and test negative at all times; (3) complete a psychosocial evaluation and follow the evaluator's recommendations; (4) obtain and maintain suitable employment and stable housing; and (5) attend all hearings, meetings, and scheduled visitations with Leah.
C. Trial
Trial was held in June 2017. The Department presented testimony from caseworker Leslie Mike; Anthea Christie, the volunteer court-appointed special advocate (CASA) who served as Leah's guardian ad litem; and Father. The Department's documentary evidence included Father's service plan, drug test results, and judgments of criminal convictions; the Department's final permanency report filed shortly before trial; and Christie's CASA report. Father did not call witnesses or offer evidence.
Just before trial began, Mother signed an irrevocable affidavit of voluntary relinquishment of her parental rights with respect to Leah. The affidavit was admitted into evidence, and her rights were terminated on that basis. See Tex. Fam. Code Ann. § 161.001(b)(1)(K). Mother did not attend trial personally.
1. Evidence about Leah
a. Condition during Department's investigation
There is scant evidence in the record about Leah's life before and just after she was removed. Milladge stated in her affidavit that Leah was too young to understand or respond to questions. The reported abscesses on Leah's breast and leg appeared properly dressed and medicated. Milladge said Leah seemed to feel fine and be in good spirits.
b. Progress with foster family
Leah was placed with her foster family in late January 2017, four months after she was removed. In her CASA report, Christie described her impressions of Leah's first meeting with the foster family as positive, noting Leah displayed "comfort and interaction with the family."
Leah thrived in her foster home in the five months leading up to trial. Christie wrote about the little girl's progress:
[Leah] has had no health issues including the eczema she had when she entered [Department] care until the time she was moved to her current placement. [Leah] takes no medication, is now accustomed to a healthy diet, and weaned off of sugar. This [guardian ad litem] had observed prior to her move she was consuming significant amounts of sugar. She is developmentally on target and is a good student at her daycare. [Leah] loves going to church with the family, is inquisitive, chatty, loves singing and dancing and likes to help her foster mom in the kitchen.Mike echoed those statements in her testimony:
[Leah] is in a great placement. She's stable. She's able to attend day care. She's well taken care of. There's no drugs and alcohol present, and she's thriving there. . . . They do take her to church all the time. She is involved in bible study. For her birthday they took her to Chuck-E-Cheese. They go to parks, and they do several different activities with the child.
c. Plans for the future
Christie and Mike both supported Leah's permanent placement with the foster family. Her foster parents planned to adopt her. Leah referred to her foster parents and their daughter as "mom," "dad," and "sister," and was said to be "inseparable" from her two-year-old foster brother. Christie wrote, "In meeting with the family and seeing how consistently intentional they were with [Leah], this [guardian ad litem] supports this placement long term."
Mike testified it was in Leah's best interest for Father's parental rights to be terminated so the foster family could adopt Leah. She said her opinion was based on Father's positive drug test results, as well as his failure to complete his services. Mike also commented on Father's recent statements that he could not attend certain appointments, including mandatory drug tests, because he had to work. She said, "I'm unsure if he did get [Leah] back, if he would be able to follow through with just regular care and daycare and appointments because of his job."
2. Evidence about Father
a. Drug use
Father was positive for drugs each of the five times he submitted to a drug test, once each month from November 2016 through March 2017. He failed to appear for two tests in April and May 2017; his failure to appear is considered a positive result under Department policy. He testified he could not appear at the April and May tests because he could not get away from work. Caseworker Leslie Mike testified she told Father the Department could provide an excuse note for his job if he so desired.
Father's drugs of choice were phencyclidine (PCP) and cocaine. Each hair follicle test was positive for PCP. Any amount greater than 300 picograms per milligram (pg/mg) is considered a positive result. Father's PCP levels were as follows: greater than 12,000 pg/mg; 9,860 pg/mg; 8,702 pg/mg; greater than 12,000 pg/mg; and 6,993 pg/mg. Additionally, Father's last two urinalyses were positive for PCP, which indicate more recent use.
Except one negative result in February 2017, Father's cocaine levels were consistently high. The baseline for a positive result for cocaine in a hair follicle test is 300 pg/mg. Father's results showed the following amounts of cocaine in his hair: 4,946 pg/mg; 6,441 pg/mg; 4,707 pg/mg; and 3,916 pg/mg.
Father tested positive once each for amphetamines, methamphetamines, and alcohol. He was positive twice for marijuana.
At trial, Father admitted using drugs in the past but said he had stopped once he met with Mike (sometime near the end of 2016) and learned how important it was for him not to take drugs. He said the positive results were due to residual drugs in his system.
b. Service plan
Father submitted to a psychosocial assessment in January 2017. Mike testified Father was working on fulfilling the assessor's recommendations. He also submitted to a substance abuse assessment. That assessor recommended a course of treatment. Father was discharged from treatment because he did not attend every session, but the treatment provider indicated Father could be re-admitted to the program. Father did not complete the required parenting classes or submit to a mental health evaluation.
Though he told Mike he lived with his grandmother, Father did not submit the required documentation to prove his residence. He gave Mike one paystub demonstrating his employment.
Father attended visitations when they occurred, but the trial court suspended visitation in January 2017 due to Father's positive results on his drug tests.
c. Criminal history
The record reflects Father was convicted of three crimes in the past twenty years, the most recent of which was fourteen years before trial. In 2003, Father pleaded guilty to possession of between one to four grams of a controlled substance. He was sentenced to three years' imprisonment. In 2002, he pleaded guilty to unlawfully carrying a weapon and was sentenced to six months' confinement in county jail. The earliest conviction in the record was from 1997, when he pleaded guilty to misdemeanor assault and was sentenced to serve ten days in county jail.
d. Relationship with Mother and Leah
Father testified Mother lived with him for her entire pregnancy with Leah. He knew Mother's parental rights had been terminated as to her five other children. He also knew Mother used drugs.
After Leah was born, Father said, she and Mother continued to live with him for an unspecified period of time, at which point Mother took Leah and left. Father did not know where Mother was, but he later learned Leah was staying with her maternal grandfather. Though Leah did not live with him, Father testified he "took care of [her] ever since she was born."
Father agreed he had "an obligation to know what's going on with [his] child." But he did not know about the abscesses Leah had when the Department received the referral in this case.
Mike testified Leah and Father had positive interactions during their visits but also noted Leah was "quite friendly to everybody." Mike did not perceive a unique bond between Leah and Father.
3. Trial court's findings
The trial court found that Father engaged in the conduct described in subsections D and E (both concerning endangerment of a child) and N (constructive abandonment) of section 161.001(b)(1) of the Family Code. The court additionally found termination of Father's parental rights was in Leah's best interest. The trial court appointed the Department to be Leah's managing conservator. Father timely appealed.
ANALYSIS
I. Burden of proof and standards of review
Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980); In re S.R., 452 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Although parental rights are of constitutional magnitude, they are not absolute. The child's emotional and physical interests must not be sacrificed merely to preserve the parent's rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001 (West 2014 & Supp. 2017); In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "'Clear and convincing evidence' means the measure or 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." Tex. Fam. Code Ann. § 101.007 (West 2014); accord J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review. S.R., 452 S.W.3d at 358.
Parental rights can be terminated upon clear and convincing evidence that (1) the parent committed an act described in section 161.001(b)(1) of the Family Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b). Only one predicate finding under section 161.001(b)(1) is necessary to support a decree of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
In reviewing the legal sufficiency of the evidence in a termination case, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. We assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence a reasonable fact finder could disbelieve. J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266.
In reviewing the factual sufficiency of the evidence, we consider and weigh all the evidence, including disputed or conflicting evidence. See J.O.A., 283 S.W.3d at 345. "If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." J.F.C., 96 S.W.3d at 266. We give due deference to the fact finder's findings, and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). The fact finder is the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109. We are not to "second-guess the trial court's resolution of a factual dispute by relying on evidence that is either disputed, or that the court could easily have rejected as not credible." In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
II. Predicate ground for termination: Endangerment (subsection E)
Father challenges the legal and factual sufficiency of the evidence to support the trial court's finding under subsections D, E, and N of section 161.001(b)(1) of the Family Code. We conclude the evidence is legally and factually sufficient to support the trial court's subsection E finding. Accordingly, we do not review the findings under subsection D or N. See A.V., 113 S.W.3d at 362.
A. Legal standards
Subsection E of Family Code section 161.001(b)(1) requires clear and convincing evidence that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(E). "To endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); S.R., 452 S.W.3d at 360. "Conduct" includes acts and failures to act. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
A finding of endangerment under subsection E requires evidence the endangerment was the result of the parent's conduct, including acts, omissions, or failures to act. Id. Termination under subsection E must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. Id. A court properly may consider actions and inactions occurring both before and after a child's birth to establish a "course of conduct." In re S.M., 389 S.W.3d 483, 491-92 (Tex. App.—El Paso 2012, no pet.). While endangerment often involves physical endangerment, the statute does not require that conduct be directed at a child or that the child actually suffer injury. Rather, the specific danger to the child's well-being may be inferred from the parent's misconduct alone. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.—Fort Worth 2004, pet. denied). A parent's conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. In re A.B., 412 S.W.3d 588, 599 (Tex. App.—Fort Worth 2013), aff'd, 437 S.W.3d 498 (Tex. 2014).
The parent's conduct both before and after the Department removed the child from the home is relevant to a subsection E inquiry. See Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no writ) (considering persistence of endangering conduct up to time of trial); In re A.R.M., No. 14-13-01039-CV, 2014 WL 1390285, at *7 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) (considering criminal behavior and imprisonment through trial).
B. Substance abuse
A parent's continuing substance abuse can qualify as a voluntary, deliberate, and conscious course of conduct endangering the child's well-being. See J.O.A., 283 S.W.3d at 345; In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); S.R., 452 S.W.3d at 361-62. By using drugs, the parent exposes the child to the possibility that the parent may be impaired or imprisoned and, therefore, unable to take care of the child. See Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Continued illegal drug use after a child's removal is conduct that jeopardizes parental rights and may be considered as establishing an endangering course of conduct. Cervantes-Peterson v. Tex. Dep't of Family & Protective Servs., 221 S.W.3d 244, 253-54 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (en banc).
C. Application
Father consistently tested positive for drugs from November 2016 through March 2017. He was presumed positive in April and May 2017 because he did not appear for those tests. His PCP levels were always high. His cocaine levels were also high, save for one negative result in February 2017. Father also tested positive on occasion for amphetamines, methamphetamines, marijuana, and alcohol.
Father admitted using drugs in the past but said he had stopped. He attributed his positive test results to residual drugs in his system. As the sole judge of credibility, the trial court could have chosen to disbelieve Father's account. See In re A.J.E.M.-B., Nos. 14-14-00424-CV, 14-14-00444-CV, 2014 WL 5795484, at *14 (Tex. App.—Houston [14th Dist.] Nov. 6, 2014, no pet.) (mem. op.) ("We acknowledge the Mother's testimony that she inadvertently used marijuana one time when she tested positive . . . . However, as the factfinder, the trial court was entitled to disbelieve the Mother's testimony and rely on the drug test results and other evidence.").
On appeal, Father describes his drug use as an "indisputable" exercise of "poor judgment." He contends, though, that Mother's conduct, not his, caused Leah to be removed. He also notes there is no evidence he endangered Leah's physical or emotional well-being before she came into Department care, so the trial court's endangerment finding cannot stand.
Father's argument is unpersuasive because a subsection E finding may be based on the parent's conduct both before and after the child is removed. Avery, 963 S.W.2d at 553. Continued illegal drug use after a child's removal jeopardizes parental rights and may demonstrate an endangering course of conduct. Cervantes-Peterson, 221 S.W.3d at 253-54. Father's drug use after Leah's removal exposed Leah to the possibility that he might be impaired or imprisoned and, therefore, unable to take care of her. Id.
D. Conclusion on endangerment
The evidence supports a finding of consistent substance abuse by Father. Considering all the evidence in the light most favorable to the endangerment finding, we conclude the trial court reasonably could have formed a firm belief or conviction that Father engaged in conduct described in subsection E. Further, in light of the entire record, we conclude the disputed evidence the trial court could not reasonably have credited in favor of its endangerment finding is not so significant that the court could not reasonably have formed a firm belief or conviction that Father endangered Leah. Accordingly, the evidence is legally and factually sufficient to support the trial court's finding under subsection E. We overrule Father's first three issues.
III. Best interest
Father's fourth issue challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of his parental rights is in Leah's best interest.
A. Legal standards
Termination must be in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(2). Prompt, permanent placement of the child in a safe environment is also presumed to be in the child's best interest. Id. § 263.307(a) (West 2014 & Supp. 2016). Texas courts presume that keeping children with their natural parent serves the children's best interest. In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The Department carries the burden of rebutting that presumption. Id.
Courts may consider the following non-exclusive factors, known as the Holley factors, in reviewing the sufficiency of the evidence to support the best-interest finding: the desires of the child; the physical and emotional needs of the child now and in the future; the physical and emotional danger to the child now and in the future; the parental abilities of the persons seeking custody; the programs available to assist those persons seeking custody in promoting the best interest of the child; the plans for the child by the individuals or agency seeking custody; the stability of the home or proposed placement; acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate; and any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). As noted, this list of factors is not exhaustive, and evidence is not required on all the factors to support a finding that termination is in the child's best interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The Family Code also sets out factors to be considered in evaluating a parent's willingness and ability to provide the child with a safe environment. See Tex. Fam. Code Ann. § 263.307(b). Finally, proof of acts or omissions under section 161.001(b)(1) is probative of the issue of the children's best interest. See In re S.R., 452 S.W.3d at 366.
B. Application
1. Leah
When a child is too young to express her desires, the fact finder may consider that the child has bonded with the foster family, is well cared for by them, and has spent minimal time with a parent. L.G.R., 498 S.W.3d at 205; In re J.D., 436 S.W.3d 105, 118 (Tex. App.-Houston [14th Dist.] 2014, no pet.).
The evidence is undisputed that Leah was bonded to her foster family and well cared for by them. She referred to the foster parents and their daughter as "mom," "dad," and "sister." She was inseparable from their two-year-old foster son. Leah's health had improved, and she had no health issues at the time of trial. She was accustomed to a healthy diet and no longer consumed "significant" amounts of sugar. Leah was developmentally on target.
2. The foster family
Mike described Leah's foster family as "great" and stable. Nobody used drugs or alcohol in the foster home. The foster parents took Leah to church and parks and did different activities with her. They planned to adopt her.
3. Father
Substance abuse. The evidence of Father's substance abuse, discussed above, is important to the best-interest analysis. See S.R., 452 S.W.3d at 366.
Minimal contact with Leah. Father said Mother lived with him during her pregnancy with Leah and for some unspecified amount of time after Leah was born. After that, though, Father had little to no contact with Leah other than knowing she was staying with her maternal grandfather. He did not know about Leah's health issues that began this case. The effect of Father's lack of contact with Leah is heightened because he knew Leah was left to be parented by only Mother, who has a history of drug abuse and whose parental rights had been terminated with respect to her five other children.
Stability. Mike worried Father could not provide Leah with a stable home. He had only recently provided proof of employment, and he did not submit the required documentation to demonstrate he had a stable home in which to care for Leah. Since Father alleged his job prevented him from attending mandatory drug tests, Mike wondered if the job would also prevent him from providing and arranging for the care Leah needs.
Failure to complete service plan. Father completed some but not all of the requirements of his service plan. He submitted to a psychosocial assessment in January 2017 and was reportedly working to fulfill the assessor's recommendations. He also submitted to a substance abuse assessment and was recommended treatment. However, he was discharged from treatment because he did not attend every session. Father did not undergo a mental health evaluation or take parenting classes. He did not prove that he had a stable residence, and he provided only one paystub. He attended visits with Leah for a couple of months, but his positive drug test results led to the suspension of his visitation rights in January 2017.
Leah had been in the Department's care for less than nine months, so the Department did not seek termination based on Father's failure to complete the service plan. Termination based on failure to comply with a court-ordered service plan requires that the child be in the Department's managing conservatorship for not less than nine months. See Tex. Fam. Code Ann. § 161.001(b)(1)(O). However, Father's failure to satisfy the requirements of his service plan is relevant to the best-interest analysis. See In re I.L.G., No. 14-17-00231-CV, ___ S.W.3d ___, 2017 WL 4182696, at *6 (Tex. App.—Houston [14th Dist.] Sept. 20, 2017, no pet. h.) ("[T]he evidence that Mother failed to complete her service plan, for purposes of subsection O, is relevant to the best-interest analysis.").
C. Conclusion on best interest
Considering all the evidence in the light most favorable to the best-interest finding, we conclude the trial court reasonably could have formed a firm belief or conviction that termination of Father's parental rights was in Leah's best interest. See J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. Further, in light of the entire record, we conclude the disputed evidence the trial court could not reasonably have credited in favor of its best-interest finding is not so significant that the court could not reasonably have formed a firm belief or conviction that termination of Father's rights was in Leah's best interest. Accordingly, the evidence is legally and factually sufficient to support the trial court's finding that termination is in Leah's best interest. We overrule Father's fourth issue.
IV. Conservatorship
In his fifth issue, Father complains the trial court should not have named the Department as Leah's sole managing conservator. He contends he "should have kept his parental rights and been named a possessory conservator with supervised visitation."
Father did not make this request in the trial court. Therefore, he has failed to preserve this issue for review. See Tex. R. App. P. 33.1(a)(1); In re U.P., 105 S.W.3d 222, 232 & n.4 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) ("Because appellant never presented this alternative to the trial court and raises it for the first time on appeal, his right to have this court rule on the trial court's failure to name him possessory conservator has been waived.").
We overrule Father's fifth issue.
CONCLUSION
We affirm the trial court's judgment.
/s/ Tracy Christopher
Justice Panel consists of Justices Christopher, Donovan, and Jewell