in the Interest of A.E. and A.E., Children ( 2014 )

NUMBER 13-14-00124-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF A.E. AND A.E., CHILDREN
On appeal from the 135th District Court
of DeWitt County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Benavides
In this parental termination case, appellant N.E. (Father) challenges the trial court’s
order terminating his parental rights to his daughter, A.E.1, and son, A.E.2.1 By two
issues, Father asserts: (1) that his affidavit of voluntary relinquishment was insufficient
evidence to terminate his parental rights; and (2) that the admission of hearsay testimony
regarding the results of his drug tests constituted reversible error. We affirm.
1 We use initials for the family members to protect the children’s identities. See TEX. R. APP. P.
9.8.
I. BACKGROUND
The Texas Department of Family and Protective Services (the Department)
removed five-year-old A.E.1, a girl, and two-year-old A.E.2, a boy, from their parents’
home due to their mother, A.E.’s (Mother’s)2, and Father’s drug use.
Kendra Leazer, the children’s caseworker, testified that she informed Father that
he was going to have a drug test on August 8, 2012 and not to “cut, color, or alter” his
hair. On the day of the test, however, she reported that Father “had shaved his head
down just short enough where they could not collect a sufficient sample.” The drug testing
facility took a sample but then labeled it “Specimen Rejected by Lab” because “there was
[an] insufficient amount of specimen to complete the testing.” Leazer reported that the
Department presumes that a drug test would be positive when a person takes affirmative
action to thwart it: “if a client fails to show, alters their hair, cutting it, coloring it, trimming
it down, [the Department] presume[s] that it’s a positive.”
On February 22, 2013, Father, Mother, and the Department participated in a
mediation regarding the children’s conservatorship. At this mediation, both parents
signed an Affidavit of Voluntary Relinquishment. The affidavit provides as follows:
Rule 11 Agreement
1. [Mother] shall execute an affidavit of relinquishment of parental rights to the
Department as to A.E.[1] and A.E.[2].
2. The Department shall prove its case for termination of [Mother’s] rights,
based on the relinquishment of parental rights, plus best interest.
3. [Father] shall execute an affidavit of relinquishment of parental rights to the
department and this shall be held by the attorney ad litem for the children.
2 The trial court also terminated the Mother’s parental rights the children, but she did not appeal
the decision and is not a party to this appeal.
2
4. The parties shall prepare an agreed final order naming the department as
permanent managing conservator of [A.E.1 and A.E.2] and [Father] as
possessory conservator of the children. The order shall contain the required
findings under § 263.503(b), Texas Family Code.
5. [Father] shall obtain housing appropriate for himself and his children.
6. [Father] shall participate in services with a courtesy worker in Travis County,
to include ongoing counseling.
7. CPS shall make the referrals necessary to set up a local courts worker and
therapist in Travis County.
8. [Father] shall present a plan for reunification to CPS, CASA, and the
attorney for the children that includes the following elements:
(1) Appropriate housing for self and kids.
(2) A budget sufficient to meet the needs for food, clothing and shelter for
himself and the children.
(3) A list of persons willing to assist [Father] with care of the children if
needed (to include information sufficient for CPS to run background
checks).
(4) Car seats appropriate for use of the children.
9. [Father] shall report any significant change in his medical condition to the
Department, CASA, and attorney for the children.
10. Prior to actual placement of the children, [Father] shall submit an updated
letter from his primary care physician regarding his ability to care for the
children.
11. Upon completion of these requirements, the parties shall either set a
hearing on the next docket for placement of the children with [Father], or
shall submit an agreed order for placement of the children with [Father].
12. After a period of six months following placement of the children assuming
placement of the children remains with [Father], one of the parties shall file
a motion to modify to name [Father] as managing conservator of the
children.
13. Following placement of the children with [Father] and while the [D]epartment
remains managing conservator, the Department shall monitor the children’s
placement to ensure that the children are in a safe environment. [Father]
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shall allow unannounced visits with the children and shall comply with drug
[tests] as requested.
14. [Father] shall not allow [Mother] to have contact with or access to A.E.[1]
and/or A.E.[2].
15. If [Father] is unable or unwilling to provide a home and appropriate care for
the children under this agreement within the time frame laid out in
263.503(b), the attorney for the children shall file [Father’s] relinquishment,
and the Department shall seek a modification and termination of parental
rights based on relinquishment.
16. If [Father’s] parental rights are terminated, the Department shall diligently
seek an appropriate adoptive placement of the children looking first to family
members.
17. Upon entry of an order naming [Father] as managing conservator of the
children, the attorney ad litem shall tender [Father’s] relinquishment to
[Father] or [Father’s] counsel.
After this mediation, the court terminated Mother’s parental rights. The
Department was appointed permanent managing conservator of A.E.1 and A.E.2 and
Father was appointed possessory conservator of the children, with the intention to reunify
him with A.E.1 and A.E.2.
Leazer scheduled Father’s next drug test for April 15, 2013. She testified that
Father, again, had cut his hair too short to take an appropriate specimen, so the
Department noted the same presumption of a positive drug test in his record. Leazer
scheduled a follow-up drug screening for Father on June 26, 2013. This test revealed a
positive cocaine result. Leazer, along with a CASA volunteer, discussed the results of
this test with Father. Father denied ever using cocaine, but “stated the reason why
cocaine would possibly be in his system and test dirty would be from having sexual
intercourse with his wife.”
On September 19, 2013, Father requested a drug test at a lab not affiliated with
the Department, as he felt “there was something with the CPS labs.” Father’s subsequent
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drug test at his requested independent lab showed positive results for cocaine and
marihuana. On January 8, 2014, at a random home visit, the Department asked Father
to submit to an oral cheek swab, which tested positive for marihuana. In light of the
positive drug results, the Department filed a Modification of Final Order in Suit Affecting
the Parent Child Relationship and Order to terminate Father’s parental rights.
Father testified at the hearing. He said that no one told him he was not allowed to
cut his hair prior to the August 8, 2012 or April 15, 2013 drug tests. With regard to the
other drug tests, Father explained that he is on numerous medications to control his high-
blood pressure, HIV-positive status, and injured back. He explained that one of the
medications he takes to manage his HIV-positive status, Marinol, has THC, an active
chemical found in marihuana, which could trigger false positive results. Father testified
that he submitted a letter to the Department from his Family Nurse Practitioner, Tom Hull,
FNP, which stated that Father “is taking a prescribed medication that can frequently cause
‘false positive’ results for THC” and that “further testing may be required on [the
Department’s] part to delineate the source of the results.”
Father also posited that the positive June 26, 2013 drug result was inaccurate
because the lab took a pubic hair sample instead of a scalp hair sample, which, according
to his attorney, has “different reliability standards and tell[s] something different than
standard hair follicles.” Father, however, had no medical expert to substantiate this claim.
Father also testified that he has “never taken cocaine in his life,” explaining that his “blood
pressure is too high and the cocaine messes with your blood pressure.” Father claimed
that he gave a list of his medications to the persons who took his drug tests and asked
them to call him if they had any questions. According to Father, he was never contacted.
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Father explained that he completed all of his court-ordered counseling and
underwent two different psychological assessments to regain custody of his children. He
also found appropriate housing, even though he claimed it was difficult to do because the
Department refused to provide his children’s birth and social security records to secure
public housing. Father also testified that he was trying to finalize his divorce from Mother,
but could not with this open Department investigation. Finally, Father complained that
the Department unilaterally stopped his visits with his children after his first positive drug
test in June of 2013 without seeking a court order first.
The trial court, after hearing the testimony and considering the exhibits admitted
into evidence, made several findings on the record. The court noted that “the purpose of
the [Rule 11] agreement was to provide a window of opportunity to [Father] to perform in
compliance with agreements that he made with CPS to acquire access to his children and
maintain that access.” The trial court announced that Father violated the agreement. The
court explained that while the letter from Father’s family nurse practitioner “could explain
the marihuana positive results . . . it doesn’t even talk about the positive cocaine results,
and there are three positive cocaine tests on three different hair follicle tests.”3 The court
made a finding that Father “violated that part of the agreement that required him to not
take drugs.”
The trial court also noted that part of the agreement forbade Father from having
contact with Mother, but Father admitted on the record that he had had sexual relations
with Mother during this time and also saw her from time to time. The court explained that
it was Father’s responsibility to abide by the agreement he signed with the advice of
3 Only the June 26, 2013 and the September 19, 2013 drug tests were positive for cocaine. The
last test, performed on January 8, 2014, was positive only for marihuana.
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counsel, and Father did not do so. Accordingly, the court terminated Father’s parental
rights to A.E.1 and A.E.2. In its written order, the court found “by clear and convincing
evidence that [Father] executed before or after the suit is filed an unrevoked or irrevocable
affidavit of relinquishment of parental rights.” Father appealed.
II. APPLICABLE LAW
Parents' rights to "the companionship, care, custody and management" of their
children are constitutional interests "far more precious than any property right." Santosky
v. Kramer, 455 U.S. 745, 758–59 (1982); see In re E.R., 385 S.W.3d 552, 554 (Tex. 2012).
Due process requires the application of the clear and convincing evidence standard of
proof in parental termination cases. In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002);
see TEX. FAM. CODE ANN. § 161.001 (West, Westlaw through 2013 3d C.S.). "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. In re J.F.C., 96 S.W.3d at 264; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
A trial court may order termination of parental rights upon finding by clear and
convincing evidence that the parent has committed statutory violations enumerated in
section 161.001(1)(A) through (T) of the family code, and that termination is in the best
interest of the child. See TEX. FAM. CODE ANN. § 161.001(1), § 161.001(2). The following
non-exhaustive list is considered by courts in analyzing the best interests of a child: (1)
desires of the child; (2) emotional and physical needs of the child now and in the future;
(3) emotional and physical danger to the child now and in the future; (4) parental abilities
of individuals seeking custody; (5) programs available to assist individuals to promote the
best interest of the child; (6) plans for the child by these individuals or by the agency
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seeking custody; (7) stability of the home or proposed placement; (8) 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. Holley v. Adams, 544
S.W.2d 367, 372 (Tex. 1976); W. B. v. Tex. Dep't of Protective & Regulatory Servs., 82
S.W.3d 739, 742 (Tex. App.—Corpus Christi 2002, no pet.).
III. THE RULE 11 AGREEMENT
By his first issue, Father contends that his affidavit of voluntary relinquishment is
insufficient evidence to terminate his parental rights, because the affidavit was executed
prior to a previous final order denying termination and the trial court was aware of the
affidavit at the time the court found that reunification was in the best interest of the
children. In other words, Father argues that use of this affidavit should be barred by res
judicata. See Barr v. Resolution Trust Corp. ex. rel. Sunbelt Federal Savings, 837 S.W.2d
627, 628 (Tex. 1992) (defining res judicata as preventing the “relitigation of a claim or
cause of action that has been finally adjudicated”); see also TEX. FAM. CODE ANN. §
161.103 (West, Westlaw through 2013 3d C.S.) (discussing affidavits of voluntary
relinquishment of parental rights).
In support of his argument, Father cites In re D.N., 405 S.W.3d 863 (Tex. App.—
Amarillo 2013, no pet.). In D.N., the Department first attempted to terminate the parental
rights of Martha, the children’s mother, because of her illegal drug use, failure to provide
medical care for her critically ill youngest daughter, physical abandonment of her
daughters, and incarceration in January 2011. Id. at 867–68. However, despite these
serious issues, in August 2011, the Department chose to name both Martha and the
children’s father, Angel, possessory conservators with rights to access and possession
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and sought reunification of the children with their parents. Id. The next year, though, in
August 2012, the Department again sought to terminate both Martha and Angel’s parental
rights when Angel missed eight of ten visitations and failed to cooperate with the
Department. Id. at 868. Martha had remained incarcerated during this period of time.
The trial court terminated both parents’ parental rights. Id.
The Amarillo Court of Appeals held that the trial court erred in terminating Martha’s
parental rights because it considered evidence against Martha that had previously been
considered in a termination hearing, namely, her illegal drug use, failure to provide
medical care for her critically ill youngest daughter, abandonment of her children, and
incarceration. See id. at 871. The court concluded that the Department had not cited
section 161.004 of the Texas Family Code, which deals with “material and substantial
changes” in the circumstances of a child or parent, as a basis for termination. See id.;
TEX. FAM. CODE ANN. § 161.004 (West, Westlaw through 2013 3d C.S.). The court
concluded that it was “unable to consider the previously presented evidence of acts or
omissions occurring prior to the trial court’s order denying termination” because the
Department had not alleged that Mother’s circumstances had materially or substantially
changed. Id. Instead, Martha’s circumstances had remained exactly the same—she was
still incarcerated. Id.
Here, Father argues that the trial court in the underlying case should not have
considered Father’s voluntary affidavit of relinquishment because it occurred prior to the
court’s decision to attempt to reunify the children with Father. However, Father’s case is
easily distinguishable from In re D.N. because, here, the Department did prove material
and substantial changes in Father’s circumstances. Section 161.004 provides as follows:
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(a) The court may terminate the parent-child relationship after rendition of
an order that previously denied termination of the parent-child
relationship if:
(1) the petition under this section is filed after the date the order denying
termination was rendered;
(2) the circumstances of the child, parent, sole managing conservator,
possessory conservator, or other party affected by the order denying
termination have materially and substantially changed since the date
that the order was rendered;
(3) the parent committed an act listed under Section 161.001 before the
date the order denying termination was rendered; and
(4) termination is in the best interest of the child.
(b) At a hearing under this section, the court may consider evidence
presented at a previous hearing in a suit for termination of the parent-
child relationship of the parent with respect to the same child.
Id. § 161.004(a)–(b).
At the hearing, the Department cited Father’s three positive drug tests on June 26,
2013 (cocaine), September 19, 2013 (cocaine and marihuana), and January 8, 2014
(marihuana) as “material and substantial changes” in Father’s ability to parent his children
since he signed the affidavit. Accordingly, the trial court could properly consider the
affidavit under section 161.004(b).
We conclude that the trial court had clear and convincing evidence that Father
failed to pass three drug tests. See In re J.F.C., 96 S.W.3d at 264. The use of illegal
drugs constituted “material and substantial changes” in Father’s life, TEX. FAM. CODE ANN.
§ 161.004, which allowed the trial court to consider his previously executed affidavit of
relinquishment of his parental rights to his children. See id. § 161.004(b). Although
Father is correct in pointing out that the trial court’s written order only cites the affidavit as
grounds for termination, the trial court clearly stated on the record at the termination
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hearing that Father’s consistent illegal drug use and contact with Mother were also
reasons for termination. See id.; see also id. § 161.001(1)(E) (providing that engaging in
conduct that endangers the physical or emotional well-being of a child can be a ground
for termination); see also, e.g., State v. Davis, 349 S.W.3d 535, 538–39 (Tex. Crim. App.
2011) (holding generally that an oral pronouncement controls over a written
pronouncement). The trial court also pronounced that termination of Father’s parental
rights was in the children’s best interests. See TEX. FAM. CODE ANN. § 161.001(2).
Further, we note that the argument regarding res judicata was never presented to
the trial court and, instead, is presented for the first time in this appeal. See TEX. R. APP.
P. 33.1 (listing the means by which counsel must preserve error at the trial court level).
In light of the foregoing, we overrule Father’s first issue.
IV. THE ADMISSION OF THE DRUG TESTS
By his second issue, Father asserts that the admission of the drug tests into
evidence constituted reversible error because the results were offered through a witness
with no personal knowledge of the testing, there was no evidence that the results were
scientifically reliable, and the trial court relied almost exclusively on the evidence when
determining the outcome of the case.
The record shows that Father objected to both the June 26, 2013 and the
September 19, 2013 drug test results only after the trial court heard testimony about them.
For example, here is the exchange regarding the June 26th test:
[Counsel for the Department]: All right. Now, when is the next time you
attempted to take a test?
[Leazer]: The third time I sent him was June 26th
of 2013.
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....
[Counsel for the Department]: And what does that report say?
[Leazer]: It’s positive for cocaine.
When counsel for the Department attempted to admit the actual test into evidence,
Father then objected as follows: “Judge, I’m going to object to Petitioner’s Exhibit Number
2 on the grounds that they haven’t laid a predicate sufficient to establish that this is a
scientifically valid test, and that it contains hearsay.” The Department responded that “we
already have it in evidence what this report says, Your Honor.” The trial court overruled
Father’s objection and admitted the test into evidence.
To preserve error for appellate review, the complaining party must make a timely
objection specifying the grounds for the objection if the grounds are not apparent from the
context; further, the objection must be made at the earliest possible opportunity, and the
complaining party must obtain an adverse ruling from the trial court. See TEX. R. CIV. P.
33.1. Here, Father should have objected to the testimony of the drug test before Leazer,
the Department’s caseworker, testified about its results.
Similarly, with respect to the September 19, 2013 drug test, Leazer was asked,
“And what were the results of that test?” and she replied, “It was done at Texas Health
Center in Victoria and [Father] was positive for cocaine and marihuana.” After this
testimony, when counsel for the Department attempted to admit the actual test into
evidence, Father objected: “Judge, again I’m going to object to improper predicate. They
have not laid the scientific basis for this test, and hearsay.” Again, this objection was
untimely because the contents of the report had already been admitted into evidence
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through Leazer’s testimony. And with respect to the January 8, 2014 test that was positive
for marihuana, Father did not object to its admission.
Accordingly, we conclude that Father failed to preserve error on this issue because
his objections were untimely or he did not object. See TEX. R. APP. P. 33.1. We overrule
his second issue.
CONCLUSION4
Having overruled both of Father’s issues, we affirm the judgment of the trial court.
__________________________
GINA BENAVIDES
Justice
Delivered and filed the
21st day of August, 2014.
4On May 19, 2014, Father filed a motion for leave for an extension of time to file appellant’s brief.
We carried the motion with this case and now grant it.
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