in the Interest of O.G.H.D.

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00172-CV
__________________

IN THE INTEREST OF O.G.H.D.
__________________________________________________________________

On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 20-05-05971-CV
__________________________________________________________________

MEMORANDUM OPINION

After a bench trial, Appellant C.L.H. (“Chase”) 1 appeals the trial court’s order

terminating his parental rights to his minor child O.G.H.D. (“Olani”), a one-year-old

child. The trial court also terminated the parental rights of J.N.D., Olani’s mother

(“Janna”).2 For reasons explained herein, we affirm the trial court’s judgment.

1
To protect the identity of the minor, we use pseudonyms to refer to the child,
her parents, and others. See Tex. R. App. P. 9.8(b)(2).
2
Janna is not a party to this appeal, and we include limited details about her
only as necessary to explain the facts.
1
 Background

On May 21, 2020, the Department of Family and Protective Services (“the

Department”) filed an Original Petition for Protection of a Child, for

Conservatorship and for Termination in Suit Affecting the Parent-Child

Relationship. The petition named Olani as the subject of the suit, Janna as the child’s

mother, and Chase as the child’s father. At the time the petition was filed, Olani was

less than one-month old.

The petition was supported by an affidavit by a Child Protective Service (CPS)

worker and representative of the Department, and the affidavit stated that, on May

6, 2020, the Department received a report of neglectful supervision of the child.

According to the affidavit, Janna tested positive for cocaine at the time she delivered

Olani, Janna denied using drugs and knew nothing about the cocaine, and Janna

tested positive for cocaine twice during pregnancy. It was unknown whether Chase

knew of Janna’s drug use.

The affidavit stated that the CPS worker met with Chase and Janna at the

hospital and talked with Janna privately, and Janna told the CPS worker that she also

has a son who lives with Janna’s mother, her mother has permanent managing

conservatorship of her son, and Janna has both a prior CPS history and criminal

history. According to the affidavit, Janna told the CPS worker she has PTSD and

anxiety, for which she takes medication. Janna denied that either she or Chase use

2
drugs, and she stated she received prenatal care and was “a hermit” during her

pregnancy.

According to the affidavit, the CPS worker also talked with Chase at the

hospital, who stated he had “a little bit of criminal history[]” as a result of his brother

stealing his identity. Chase told the CPS worker he has CPS history because he is

adopted, he takes no medication except Ibuprofen, he does not use drugs, and he has

no other children.

According to the affidavit, later the CPS worker spoke with Janna’s mother

Sable, who stated she was unhappy that CPS was involved because the previous CPS

involvement had caused Sable and Janna a “large amount of stress[.]” Sable

explained that Janna was taking prescription medication, but that Sable would not

allow Janna to be around children if she were using drugs. Sable described Janna

and Chase as attached “like [V]elcro” because they were always together.

The affidavit reported that Janna and Chase were drug-tested on May 11, and

Chase’s urine test was negative, but his hair follicle test was positive for a cocaine

metabolite, and Janna’s hair follicle test was also positive for a cocaine metabolite.

The CPS worker learned that a previous CPS investigation involving Janna’s other

child resulted in a “Reason to Believe” that Sable was aware of Janna’s drug use but

did not take protective action to ensure Janna’s other child’s safety. In a previous

CPS case in 2014, Janna and her son Alden tested positive for cocaine and marijuana

3
when Alden was born. In 2015, CPS determined that Janna had held Alden while

attempting to run the father over in her car and Janna’s home was unsanitary. Alden

was removed and initially placed in a Parental Child Safety Placement with Sable,

and Janna was not allowed to have any access to the child.

In 2015, Janna tested positive for cocaine and marijuana, she lied about being

out of state, it was believed she lied to avoid a drug test, and Sable lied for Janna and

did not take protective action to ensure Alden’s safety. Janna was arrested for

possession and tampering with evidence and was arrested for violating her probation

because she tested positive for cocaine and opiates. The Department had temporary

managing conservatorship of Alden, and Alden was then placed with fictive kin.

Janna had numerous arrests that resulted in dismissal and one arrest for

misdemeanor driving while intoxicated that resulted in a conviction. Chase had a

conviction for misdemeanor possession of a controlled substance and three

convictions for misdemeanor theft of property.

The Department was appointed Temporary Managing Conservator of Olani.

Family service plans were developed for Janna and Chase. In an Order from the

August 2020 Status Hearing, the court found that Chase and Janna had reviewed and

understood the service plan but had not signed the plan. The court also found that

the parents’ visitation with Olani must be supervised to protect Olani’s health and

safety.

4
 Evidence at Trial

Testimony of Janna

Janna testified that her son Alden did not live with her because CPS became

involved due to her drug use and because Alden tested positive for drugs at birth.

Janna admitted she did not complete the drug treatment in the 2017 CPS case for

Alden. At the time of trial, Janna had been living with a friend for about five weeks,

and before that, she and Chase lived with her mother. Janna testified that she wanted

Olani home, but she thought Olani should go with her father because Janna said she

was “not stable[]” and did not have a permanent residence. Janna denied using drugs

and could not explain her positive drug test results. Janna agreed that Olani tested

positive for drugs at birth according to the medical records, but Janna did not believe

it was true. Janna also agreed that, at the time she began working on her required

services, the records showed she was still testing positive for cocaine.

Testimony of Chase

Chase testified that he and Janna were in a relationship for about five years

and they separated about two months before trial due to “differences[]” and issues

related to Olani being taken away. At the time of trial, Chase testified that he had

been living with a married couple in Houston for about two months, he was working

two jobs, and he stated his monthly income was about $8000. According to Chase,

when Olani was born, he and Janna were living with Janna’s mother in Magnolia.

5
 Chase testified that he has never used drugs or cocaine. When asked about his

positive hair follicle test for cocaine, Chase acknowledged that he tested positive for

cocaine but said he had no explanation for the result, he thought the test was

incorrect, he works with paints, and “paints show up for drugs.” Chase testified that

he was court-ordered to participate in parenting collaboration and a drug assessment,

and at the time of trial, he was participating in a drug and alcohol treatment program.

He further testified that the Department notified him about doing a drug and alcohol

evaluation about two months prior to trial and he had about eight classes of a total

of twenty-four left to complete. He agreed he took a drug test in April 2021, and he

said he had some paperwork showing he took the test, but he said he was not

surprised to learn there were no records of the test. According to Chase, he had

actively participated in the services the Department asked of him, but there was a

delay in getting started that was not his fault. He testified that he had maintained

visitation with Olani about every week except for “the last few weeks” when he was

working two jobs and due to transportation problems. He also testified that “many

times[]” the Department cancelled the visitation because someone had COVID. He

agreed that he had stayed in touch with the Department during the case and that he

had had “two or three[]” caseworkers during the case.

Chase testified that he wanted the court to give Olani to him or to her

grandmother so that Olani could be with her brother, Alden. Chase testified that he

6
has a bond with Olani, she loves him, he loves her, and he wants to be her father

“[f]orever[.]” According to Chase, he had housing that was appropriate for Olani to

live with him, and he had the means and ability to provide day care for her while he

was at work. Chase testified that during the case, he provided whatever he could for

Olani’s support, including diapers, formula, clothes, and toys, but he did not provide

financial support. Chase agreed that he was not working and did not have any income

at the beginning of the case.

After the Department rested, Chase testified again. Chase stated that he had

gone to a drug test in April and did not refuse to give a hair follicle, and he was told

his hair was too short. He denied that between May 2020 and January 2021 that he

was notified to take drug tests twice a month. He testified that he notified the first

caseworker of problems receiving notifications of drug testing in 2020, he denied

getting notifications to do drug testing in 2020, and he testified that the only

notification he received was in April 2021.

Chase testified that he missed three or four visits with Olani, he took a

parenting class and parent collaboration, and he submitted a certificate of completion

of both to the first caseworker. According to Chase, he took a drug and alcohol

assessment in November 2020, and he believed he had complied with all the service

plan requirements. Chase testified he could provide Olani a safe and stable home

7
environment, he was asking the court not to terminate his parental rights, and it was

in Olani’s best interest for him to remain her father.

Testimony of the Caseworker

The Caseworker testified that family service plans were created and approved

in June 2020, and she was assigned to the case January 15, 2021. According to the

Caseworker, she had tried to maintain contact with Chase, but he had not maintained

contact with her. The Caseworker agreed that Chase had attended “a majority of his

visits[]” with Olani.

The Caseworker testified that Janna had not completed substance abuse

treatment, individual therapy, or a psychiatric evaluation. The Caseworker agreed

that there were times when the Department had to cancel visitation during the case,

but there had been makeup visits. She testified that she learned that Chase was

employed when he said he was missing a visit due to work. She learned that Chase

had gotten a new phone number when she was talking with Janna.

The Caseworker agreed that the hospital records indicated drug use by Janna

at the time of Olani’s birth, and drug use has been an ongoing concern that had not

been alleviated by any actions by Janna or Chase. She testified that the parents were

notified to do drug testing twice a month since August 2020. The Caseworker

testified she had concerns about returning Olani to Janna because Janna’s hair

follicle and urinalysis drug test a month before trial was positive and because Janna

8
had not completed her service plan. According to the Caseworker the biggest

problem with returning Olani to either parent was “[t]he concern of drug use…in

both homes.” The Caseworker had concerns about returning Olani to Chase because

of concerns about drug use, his refusal a month prior to trial to do a hair follicle test

although he took a urinalysis, he had not completed his service plan, and he had only

been in his current home for a short time. In particular, the Caseworker testified that

Chase had not completed parenting classes or substance abuse therapy and he had

not provided proof of employment or documentation about his rent or housing.

According to the Caseworker, although Chase had not completed any of his services,

he had not reported to her any issues with being able to participate in services except

for one time, and the Caseworker then sent a new referral. The Caseworker was

unaware as to whether Chase provided any financial support to Olani during the

case. The Caseworker agreed that Chase’s urinalysis drug test in 2021 was negative,

she did not get drug test results for a hair follicle test, and on cross-examination, she

testified that she was not aware that there were no records of Chase’s drug test from

earlier in the year. 3

3
Results of drug testing for Chase were admitted into evidence that reflect he
tested positive for cocaine and cocaine metabolites on May 11, 2020.
9
Testimony of the Foster Mother

The Foster Mother testified that Olani was placed with her on May 21, 2020.

To alleviate Janna and Chase’s concerns, she and her husband maintained contact

with them, including making a journal with updates and pictures to send when Olani

had weekly visitations. According to the Foster Mother, Janna and Chase missed

some visitations—typically missing several consecutive weeks—but “they made

more than they missed.” The Foster Mother also testified that Janna and Chase had

sent clothes and baby food for Olani.

The Foster Mother testified that Olani had low birth weight and has remained

small, but she was happy, growing well, and walking. At Olani’s one-year checkup,

she was referred to audiology and ECI for a concern about speech development.

Olani has also had some issues with reflux, colic, and sleeping.

The Foster Mother also testified that “[i]f Olivia becomes available for

adoption, there’s nothing that we would love more.” She and her husband have three

young sons who love Olani, and Olani loves the boys. She testified that she would

do what she could to ensure Olani had a relationship with her brother.

Testimony of the Court Appointed Special Advocate (CASA)

The CASA testified that she was assigned to the case on June 5, 2020, and

most of her communication has been with Janna. The CASA did not believe that

Janna or Chase had proven sobriety or had a safe and stable environment for

10
reunification, and she believed it was in Olani’s best interest for Janna’s and Chase’s

parental rights to be terminated. According to the CASA, Janna’s and Chase’s

visitations with Olani had been inconsistent and at times they were not able to attend

or would not respond to messages confirming appointments. The CASA testified

that Chase did not participate in many group chats, he was not involved in most of

the communication outside of visits, but he engaged with Olani during visits.

According to the CASA, eight visits were cancelled by CPS, in part due to COVID,

and the parents cancelled “[c]lose to 30[]” visits.

The CASA testified that Olani was progressing well developmentally, she was

energetic and happy, and she seemed to be very healthy. The CASA thought the

foster home was a safe and stable environment, interaction in the foster home was

going very well, and Olani’s needs were being met.

A certified copy of a 2017 judgment against Janna for driving while

intoxicated was admitted into evidence. Results of drug testing were admitted into

evidence and showed the following positive drug tests for Janna:

• cocaine, cocaine metabolites, and marijuana on May 25, 2017;
• cocaine and cocaine metabolites on January 10, 2018;
• cocaine metabolites on January 31, 2018;
• cocaine and cocaine metabolites on May 11, 2018;
• cocaine and marijuana on May 14, 2018;
• cocaine and cocaine metabolites on May 11, 2020; and
• cocaine, cocaine metabolites, and marijuana on April 16, 2021.

11
Results of drug testing for Chase were admitted that reflect he tested positive for

cocaine and cocaine metabolites on May 11, 2020. Medical records for Olani were

admitted that reflect she tested positive for a cocaine metabolite at birth. Medical

records for Janna at the time of Olani’s birth were admitted that include diagnoses

of “drug use complicating childbirth” and “cocaine abuse[.]” Janna’s and Chase’s

family service plans were also admitted into evidence.

After the bench trial, on June 3, 2021, the court entered a final order

terminating Janna’s and Chase’s parental rights to Olani. The trial court found that

the Department had shown, by clear and convincing evidence, that it was in Olani’s

best interest to terminate Janna’s and Chase’s parental rights. The trial court found

that the Department had shown by clear and convincing evidence that Janna had

knowingly allowed Olani to remain in conditions that endangered her physical or

emotional well-being and engaged in conduct or knowingly left the child with

persons who engaged in conduct that endangered her physical or emotional well-

being. The trial court also found that the Department had shown by clear and

convincing evidence that Janna failed to comply with the provisions of a court order

that specifically established the actions necessary for Janna to obtain the return of

Olani, who had been in the permanent or temporary managing conservatorship of

the Department for not less than nine months as a result of the child’s removal from

her under Chapter 262 for the abuse or neglect of the child. The trial court also found

12
that the Department had shown by clear and convincing evidence that Chase had

knowingly allowed Olani to remain in conditions that endangered her physical or

emotional well-being and engaged in conduct or knowingly left her with persons

who engaged in conduct that endangered her physical or emotional well-being. The

trial court also found that the Department had shown by clear and convincing

evidence that Chase failed to comply with the provisions of a court order that

specifically established the actions necessary for Chase to obtain the return of Olani,

who had been in the permanent or temporary managing conservatorship of the

Department for not less than nine months as a result of the child’s removal from her

under Chapter 262 for the abuse or neglect of the child.

Chase filed a Request for Findings of Fact and Conclusions of Law and a

Notice of Appeal. The appellate record includes no Findings of Fact and Conclusions

of Law subsequent to Chase filing his request, nor any Notice of Past Due Findings

of Fact and Conclusions of Law filed by Chase. See Tex. R. Civ. P. 297.4 Janna did

not file a Notice of Appeal.

4
The failure to file a notice of past due findings of fact and conclusions of law
waives the right to complain on appeal about the trial court’s failure to file findings
and conclusions. In re G.M., No. 14-20-00044-CV, 2021 Tex. App. LEXIS 3610, at
*14 (Tex. App.—Houston [14th Dist.] May 11, 2021, no pet.) (citing Las Vegas
Pecan & Cattle Co., Inc. v. Zavala Cty., 682 S.W.2d 254, 255 (Tex. 1984)); In re
A.I.G., 135 S.W.3d 687, 694 (Tex. App.—San Antonio 2003, no pet.).
13
 Issues

Appellant raises the following issues on appeal:

[1] There is legally and factually insufficient evidence to support the
Trial Court’s finding that [Chase’s] rights were terminated under
Section 161.001(b)(1)(D) of the Texas Family Code.
[2] There is legally and factually insufficient evidence to support the
Trial Court’s finding that [Chase’s] rights were terminated under
Section 161.001(b)(1)(E) of the Texas Family Code.
[3] There is legally and factually insufficient evidence to support the
Trial Court’s finding that [Chase’s] rights were terminated under
Section 161.001(b)(1)(O) of the Texas Family Code.
[4] There is legally and factually insufficient evidence to support the
Trial Court’s finding that the termination of [Chase’s] parental
rights were in the best interest of [Olani.]
[5] The Trial Court erred in admitting Petitioner’s Exhibits 5 and 9 for
the reason that as business records they contained third-party
hearsay and were unreliable, which resulted in an erroneous
judgment.

Standard of Review

The decision to terminate parental rights must be supported by clear and

convincing evidence. Tex. Fam. Code Ann. § 161.001(b). Under the Family Code,

“‘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.” Id. § 101.007; In re J.L., 163 S.W.3d 79,

84 (Tex. 2005). The movant must show that the parent committed one or more

predicate acts or omissions and that termination is in the child’s best interest. See

Tex. Fam. Code Ann. § 161.001(b); In re J.L., 163 S.W.3d at 84.

14
 In reviewing the legal sufficiency of the evidence in a parental rights

termination case, we must consider all the evidence in the light most favorable to the

finding to determine whether a reasonable factfinder could have formed a firm belief

or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344-45 (Tex.

2009) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder

could do so, and we disregard all evidence that a reasonable factfinder could have

disbelieved. Id. In a factual sufficiency review, we “give due consideration to

evidence that the factfinder could reasonably have found to be clear and

convincing.” In re J.F.C., 96 S.W.3d at 266. We must determine “‘whether the

evidence is such that a factfinder could reasonably form a firm belief or conviction

about the truth of the State’s allegations.’” Id. (quoting In re C.H., 89 S.W.3d 17, 25

(Tex. 2002)). “If, in light of the entire record, the disputed evidence that a reasonable

factfinder could not have credited in favor of the finding is so significant that a

factfinder could not reasonably have formed a firm belief or conviction, then the

evidence is factually insufficient.” Id. In cases tried to the bench, the trial court in its

role as factfinder determines the credibility and weight of the witnesses’ testimony

and resolves any inconsistencies or conflicts in the evidence. See Webb v. Crawley,

590 S.W.3d 570, 578 (Tex. App.—Beaumont 2019, no pet.); In re R.J., 568 S.W.3d

734, 754 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).

15
 Admission of Business Records Evidence

On appeal, Chase argues that because Exhibits 5 and 9 are inconsistent and

there is no explanation for the inconsistency, there is a question about the reliability

of the records contained in these two exhibits. Appellant concedes that both exhibits

meet the formal requirements of Rule 803(6), but Appellant argues that the

“trustworthiness of the exhibits is not evident[] due to the discrepancies[,]” the

exhibits should not have been admitted, and the error resulted in an erroneous

judgment.

At trial, Chase objected to the admission of reports of drug testing results

based on hearsay and reliability. Exhibit 5 includes an Affidavit for Business

Records by the custodian of records for Texas Alcohol & Drug Testing Service, Inc.

dated May 26, 2020, and also includes a Test Results report that reflects that Chase

tested positive for cocaine and cocaine metabolites on May 11, 2020. Exhibit 9

includes a certification by the custodian of records for Texas Alcohol & Drug

Testing Service, Inc. dated April 23, 2021, that states a search of files revealed no

testing records for Chase. Chase argued at trial that the inconsistency between the

business records raises a question about the reliability of Exhibit 5. The Department

argued the exhibits were not inconsistent because Exhibit 9 was created after Exhibit

5, and Exhibit 9 merely reflected that “no further records were found to be within

the Texas Alcohol and Drug Testing Service.” Both exhibits were admitted. In

16
moving for a directed verdict at the end of the Department’s case in chief, Chase

argued in part that “there is evidence contrary to the affidavit submitted by the drug

testing company that my client did test…negative for cocaine and they have no

records of him taking a test. So[,] we have an inconsistency there.” The court denied

the motion for a directed verdict.

We review a trial court’s decision to admit evidence for an abuse of discretion.

Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014). A trial court

abuses its discretion when it acts without regard to guiding rules or principles. See

Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Even if

the trial court abused its discretion in admitting certain evidence, reversal is only

appropriate if the error was harmful—that is, it probably resulted in an improper

judgment. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012) (citing

Tex. R. App. P. 44.1, 61.1; Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131,

144 (Tex. 2004)). In determining whether an erroneous admission of evidence is

harmful, we review the entire record and require the complaining party to

demonstrate that the judgment turns on the particular evidence admitted. See

Armstrong, 145 S.W.3d at 144. The erroneous admission of evidence is harmless if

the evidence is merely cumulative of other evidence admitted at trial. See id.

When the opposing party timely voices a hearsay objection, the other party

offering the evidence bears the burden of showing that the evidence is either not

17
hearsay or that it fits within an exception to the general rule prohibiting the

admission of hearsay evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d

897, 908 n.5 (Tex. 2004); see also Tex. R. Evid. 802. Rules 803 and 804 outline

exceptions to the hearsay rule and 803 includes an exception for certain business

records. We conclude that the trial court did not abuse its discretion in admitting the

evidence because the trial court could have reasonably determined that the business

record exception applied to the drug testing records. For example, Texas Rule of

Evidence 803(6) provides an exception to the hearsay rule for business records if:

(A) the record was made at or near the time by - or from information
transmitted by - someone with knowledge;

(B) the record was kept in the course of a regularly conducted business
activity;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or
another qualified witness, or by an affidavit or unsworn declaration that
complies with Rule 902(10); and

(E) the opponent fails to demonstrate that the source of information or
the method or circumstances of preparation indicate a lack of
trustworthiness.

“Business” as used in this paragraph includes every kind of regular
organized activity whether conducted for profit or not.

Id.; see also Tex. R. Evid. 902(10) (providing that certain business records

accompanied by an affidavit as outlined in the rules are self-authenticating). Under

Rule 803(6), the records of a business may include records created by that business
18
and in some instances records from a third party that are incorporated into the records

of the other business if: (1) the document is incorporated and kept in the course of

the testifying witness’s business, (2) that business typically relies upon the accuracy

of the document’s content, and (3) the circumstances otherwise indicate the

document’s trustworthiness. See In re J.N.P., No. 09-20-00245-CV, 2021 Tex. App.

LEXIS 1827, at **20-21 (Tex. App.—Beaumont Mar. 11, 2021, no pet.) (mem. op.)

(collecting cases from the Courts of Appeal addressing the admissibility of third-

party documents as business records of a different business).

Because the report of the drug testing was accompanied by an affidavit that

complies with Texas Rule of Evidence 902(10)(B), the only question regarding its

admissibility was whether the drug test report showed sufficient indicia of

trustworthiness to bring it within the business-records exception to the hearsay rule.

See Tex. R. Evid. 803(6); F.C. v. Dep’t of Family & Protective Servs., No. 03-19-

00625-CV, 2020 Tex. App. LEXIS 119, at **16-17 (Tex. App.—Austin Jan. 9,

2020, no pet.) (mem. op.) (citing In re A.T., No. 2-04-355-CV, 2006 Tex. App.

LEXIS 1882, at **12-13 (Tex. App.—Fort Worth Mar. 9, 2006, pet. denied) (mem.

op.)). The business-records affidavit accompanying Chase’s May 2020 drug test

results states that the drug test “utilize[ed] strict chain of custody procedures” and

“was performed utilizing GC/MS (gas chromatography/mass spectrometry)

instruments by a certified scientist and reviewed by a licensed medical review

19
officer.” The affidavit further states that a record of the test result was kept in the

regular course of business of the Texas Alcohol and Drug Testing Service and that

it is in the regular course of business of that entity for an employee or representative

with knowledge of the act, event, condition, opinion, or diagnosis to record the

information at or reasonably near the time it occurred. The drug test itself was signed

by a Certified Medical Review Officer—an M.D.—verifying that the test was

positive. The test result identifies the collection site, date, type of panel test used,

and name of the lab that performed the test. Attached to the business-records

affidavit was (a) the laboratory report indicating the quantitative results, identifying

the lab as “DHHS Certified,” and (b) the “Forensic Drug Testing Custody and

Control Form” that accompanied the sample Chase provided as it was transported

from the testing facility to the laboratory. We conclude that the trial court did not

abuse its discretion in determining that the drug test and accompanying affidavit

showed sufficient indicia of trustworthiness to be properly admitted as a business

record. See F.C., 2020 Tex. App. LEXIS 119, at **16-18. Inconsistencies between

Exhibits 5 and 9—if any—were for the trial court to resolve in its role as factfinder.

See Webb, 590 S.W.3d at 578.

We also note that even if the court erred by admitting the exhibits, any such

error would be harmless because the same evidence was admitted elsewhere without

objection. See In re E.A.K., 192 S.W.3d 133, 148 (Tex. App.—Houston [14th Dist.]

20
2006, pet. denied) (Any error in the admission of evidence is harmless if the

objecting party permits the same or similar evidence to be introduced without

objection.). Chase acknowledged that his initial hair follicle test showed a positive

result for cocaine. Also, the family service plan, which was admitted without

objection as Petitioner’s Exhibit 11, stated that Chase’s hair follicle test at the outset

of the case was positive for “benzoylecgonine, cocaine metabolite and norcocaine.”

Therefore, even assuming the trial court erred in admitting the drug test reports, we

conclude any such error was harmless. See id.

Appellant also argues that there is no evidence establishing the reliability of

the third-party laboratory, citing to Philpot v. State, 897 S.W.2d 848, 852 (Tex.

App.—Dallas 1995, pet. ref’d). Appellant did not make this objection at trial.

Therefore, he has not preserved this argument for appeal. See Tex. R. App. P. 33.1;

Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex. App.—Houston [14th Dist.]

2005, pet. denied) (To preserve error, a party’s argument on appeal must comport

with its argument in the trial court.). We find no abuse of discretion by the trial court

in admitting Exhibits 5 and 9, and we overrule Appellant’s fifth issue.

Statutory Grounds D and E

We are required to consider the sufficiency of the evidence pursuant to

Sections 161.001(b)(1)(D) or (E) if challenged. In re N.G., 577 S.W.3d 230, 235-36

(Tex. 2019). If the evidence is sufficient as to one of these, it will not be necessary

21
to address the other predicate grounds because sufficient evidence as to only one

ground in addition to the best interest finding is all that is necessary to affirm a

termination judgment. Id. at 232-33. Because the evidence of statutory grounds D

and E is often interrelated, we may consolidate our review of the evidence supporting

these grounds. See In re J.L.V., No. 09-10-00316-CV, 2020 Tex. App. LEXIS 2070,

at *33 (Tex. App.—Beaumont Mar. 11, 2020, pet. denied) (mem. op.).

Endangerment arises when a parent’s conduct jeopardizes the child’s emotional or

physical health. See In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th

Dist.] 2014, pet. denied).

Under subsection D, parental rights may be terminated if clear and convincing

evidence supports that the parent “knowingly placed or knowingly allowed the child

to remain in conditions or surroundings which endanger the physical or emotional

well-being of the child[.]” Tex. Fam. Code Ann. § 161.001(b)(1)(D). Subsection E

allows for termination of parental rights if clear and convincing evidence supports

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[.]” Id. § 161.001(b)(1)(E).

Under subsection D, parental rights may be terminated based on a single act

or omission by the parent. In re L.E.S., 471 S.W.3d 915, 925 (Tex. App.—Texarkana

2015, no pet.) (citing In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003,

22
pet. denied)). Termination under subsection E requires more than a single act or

omission and a “‘voluntary, deliberate, and conscious course of conduct by the

parent is required.’” Id. at 923 (quoting Perez v. Tex. Dep’t of Protective &

Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004, no pet.)). As for

subsection D, we examine the time before the child’s removal to determine whether

the environment of the home posed a danger to the child’s physical or emotional

well-being. Id. at 925 (citing In re L.C., 145 S.W.3d 790, 795 (Tex. App.—

Texarkana 2004, no pet.)). “A finding of endangerment under subsection E,

however, may be based on conduct both before and after removal.” In re A.L.H., 515

S.W.3d 60, 93 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (citing In re

S.R., 452 S.W.3d at 360). “‘[E]ndanger’ means to expose to loss or injury[.]’” In re

N.S.G., 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.) (quoting Tex.

Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Under subsection

E, it is sufficient that the child’s well-being is jeopardized or exposed to loss or

injury. Boyd, 727 S.W.2d at 533; N.S.G., 235 S.W.3d at 367. “‘A child is endangered

when the environment creates a potential for danger that the parent is aware of, but

disregards.’” In re L.E.S., 471 S.W.3d at 925 (quoting In re N.B., No. 06-12-00007-

CV, 2012 Tex. App. LEXIS 3587, at **22-23 (Tex. App.—Texarkana May 8, 2012,

no pet.) (mem. op.)). Generally, subjecting a child to a life of uncertainty and

instability endangers the child’s physical and emotional well-being. See In re R.W.,

23
129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). Abusive or violent

conduct by a parent may produce a home environment that endangers a child’s well-

being. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003,

no pet.).

In addition, a pattern of drug abuse will also support a finding of conduct

endangering a child even if there is no evidence that such drug use caused a physical

or actual injury to the child. Vasquez v. Tex. Dep’t of Protective & Regulatory Servs.,

190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). A history

of illegal drug use is conduct that subjects a child to a life that is uncertain and

unstable, endangering the child’s physical and emotional well-being. In re S.D., 980

S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied); Dupree v. Tex. Dep’t

of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no

writ). A parent’s drug use, criminal history, and employment and housing instability

prior to and during the case create a course of conduct from which the factfinder

could determine the parent endangered the child’s emotional and physical well-

being. See In re M.C., No. 09-18-00436-CV, 2019 Tex. App. LEXIS 2961, at **15-

16 (Tex. App.—Beaumont Apr. 11, 2019, not pet.) (mem. op.); see also In re S.R.,

452 S.W.3d at 361-62 (parent’s drug use may qualify as a voluntary, deliberate, and

conscious course of conduct endangering the child’s well-being); Walker v. Tex.

Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston

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[1st Dist.] 2009, pet. denied) (illegal drug use may support termination under

subsection E because “it exposes the child to the possibility that the parent may be

impaired or imprisoned[]”). A parent’s continued drug use when the custody of his

or her child is in jeopardy supports a finding of endangerment. See In re S.R., 452

S.W.3d at 361-62 (citing 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.).

Chase testified that he and Janna lived with Janna’s mother when Olani was

born. Janna’s medical records from her delivery reflected a diagnosis of “drug use

complicating childbirth” and also “cocaine abuse[.]” Olani’s medical records from

birth reflect that when she was born, she tested positive for a cocaine metabolite.

Drug testing records for Janna showed positive drug tests for cocaine, cocaine

metabolites, or marijuana in May 2017, January 2018, May 2018, May 2020, and

April 2021—both before and after Olani was removed from the home. Chase tested

positive for cocaine and cocaine metabolites on May 11, 2020—around the time

Olani was removed from the home. Chase testified that he and Janna had been

together for about five years and at the time of Olani’s birth he and Janna were living

with Janna’s mother. Janna’s son Alden was removed from Janna’s home in 2017

due to Janna’s drug use and because Alden also tested positive for drugs when he

was born. Janna admitted she did not complete drug treatment in the 2017 case when

Alden was removed. The Caseworker in Olani’s case testified that Janna and Chase

25
were notified they should complete drug testing twice a month during the pendency

of the case, and according to the Caseworker, Chase refused to do a hair follicle test

in April 2021. The Caseworker also testified that neither Janna nor Chase had

completed substance abuse treatment and that drug use has been an ongoing concern

that had not been alleviated by any actions by Janna or Chase.

A parent’s refusal to submit to drug testing may be considered as evidence

that he or she is continuing to abuse drugs. In re T.R.L., No. 10-14-00290-CV, 2015

Tex. App. LEXIS 2178, at *14 (Tex. App.—Waco Mar. 5, 2015, no pet.) (mem. op.)

(“A factfinder may reasonably infer from a parent’s refusal to take a drug test that

the parent was using drugs.”); In re C.R., 263 S.W.3d 368, 374 (Tex. App.—Dallas

2008, no pet.) (trial court could reasonably infer parent avoided taking drug tests

because she was using drugs).

Despite the fact Janna and Chase both denied using drugs, neither had any

explanation for their positive drug tests during the pendency of this case, nor did

they have any explanation for the fact that the test confirmed that Olani was born

with cocaine in her system. Chase denied that he was notified he should submit for

drug testing twice a month, but the trial judge as the trier of fact was free to believe

the testimony of the Caseworker that Chase had been told to submit to drug testing

twice a month. And the trial court could have inferred that Chase avoided taking

drug tests because he was using drugs. Id. Based on the positive drug tests of Chase

26
and Janna, as well as the lengthy history of drug use by Janna, coupled with the

testimony that Chase and Janna had been together for approximately five years and

were always together, the trial court also could have concluded that Chase was aware

of Janna’s drug use before and while she was pregnant with Olani, that Chase

consciously disregarded the risk, and that both Janna and Chase used drugs while

Janna was pregnant with Olani.

Appellant argues that the evidence shows no causal connection between

Chase and any endangerment to Olani. Chase cites to In re L.C.L., 599 S.W.3d 79,

84-86 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). In L.C.L., the Fourteenth

Court stated that “drug use alone” would not be sufficient evidence of endangerment

under subsection P, and the court concluded that the statute requires evidence that a

parent used a controlled substance “in a manner that endangered the health and safety

of the child.” 5 In a divided en banc opinion, the court held that the evidence was

insufficient to support a finding of endangerment for lack of a causal connection

between the drug use and the endangerment of the child, but the evidence was

sufficient to support termination under subsection O. Nonetheless, the appellate

court remanded the case to the trial court for a new trial on best interest only. Id. at

5
Subsection P provides that the court may terminate the parent-child
relationship if the court finds by clear and convincing evidence that the parent used
a controlled substance “in a manner that endangered the health or safety of the
child[.]” Tex. Fam. Code Ann. § 161.001(b)(1)(P). In this case, the trial court did
not terminate Chase’s parental rights under subsection P.
27
90-91. Therefore, in L.C.L., the Fourteenth Court’s finding as to endangerment was

not outcome-determinative. See In re D.S., 333 S.W.3d 379, 388 (Tex. App.—

Amarillo 2011, no pet.) (an appellate court may affirm a trial court’s final order of

termination based on any one ground because only one statutory predicate is

necessary for termination of parental rights). In light of the record before us and the

guidance that has been provided by the Texas Supreme Court, we do not find In re

L.D.L. persuasive or controlling.

The Texas Supreme Court has stated that endangering conduct is not limited

to actions directed towards the child and may include actions before the child’s birth,

including evidence of drug abuse. See In re J.O.A., 283 S.W.3d at 345. This Court

has stated that a parent’s pattern of drug abuse supports a finding of endangerment

even if there is no evidence that such drug use actually injured the child. See In re

T.B., No. 09-20-00172-CV, 2020 Tex. App. LEXIS 8938, at *26 (Tex. App.—

Beaumont Nov. 19, 2020, no pet.) (mem. op.) (citing Vasquez, 190 S.W.3d at 196);

In re A.M., No. 09-19-00075-CV, 2019 Tex. App. LEXIS 7941, at *55 (Tex. App.—

Beaumont Aug. 29, 2019, pet. denied) (mem. op.). The Amarillo Court of Appeals

has also explained that “[t]his court and other courts have consistently found that a

parent’s decision to leave a child in the care of a known drug user is relevant to the

predicate acts or omissions outlined in [subsection] E.” In re T.C., Nos. 07-18-

00232-CV & 07-18-00233-CV, 2018 Tex. App. LEXIS 6768, at *8 (Tex. App.—

28
Amarillo Aug. 23, 2018, pet. denied) (mem. op.); see also S.R. v. Tex. Dep’t of

Family & Protective Servs., No. 03-21-00142-CV, 2021 Tex. App. LEXIS 6392, at

*12 n.3 (Tex. App.—Austin Aug. 6, 2021, no pet. h.) (mem. op.) (acknowledging

the outcome in In re L.C.L. but concluding that endangerment need not be

established as an independent proposition but may be inferred from parental

misconduct alone) (citing M.D. v. Tex. Dep’t of Family & Protective Servs., No. 03-

20-00531-CV, 2021 Tex. App. LEXIS 3310, at *18 n.4 (Tex. App.—Austin Apr.

30, 2021, no pet.) (mem. op.)).

The evidence in this case reflects that Olani was not merely exposed to drug

abuse. She was born with a cocaine metabolite in her system, the delivery was

complicated by Janna’s drug use, Chase and Janna lived together at the time Olani

was born, and Chase and Janna both tested positive for cocaine metabolites when

Olani was born and when Olani was removed by CPS. The record provides clear and

convincing evidence that Chase’s acts or omissions in using drugs and his other acts

or omissions allowing his unborn child to be subjected to Janna’s drug use while she

was pregnant with Olani, and while Chase was with Janna, endangered the health

and safety of Olani. See In re A.J.F., No. 07-20-00242-CV, 2021 Tex. App. LEXIS

947, at *1, **8-9 (Tex. App.—Amarillo Feb. 4. 2021, no pet.) (mem. op.) (finding

the evidence sufficient to support a finding of endangerment where, among other

29
things, both parents had a history of substance abuse, the parents lived together, and

both mother and child tested positive for drugs when the child was born).

Deferring to the trial court’s credibility determinations and reviewing all the

evidence in the light most favorable to the termination findings under subsections D

and E, the trial court could reasonably have formed a firm belief or conviction that

Chase, through his individual acts or omissions or a course of conduct, endangered

Olani’s physical or emotional well-being. We conclude that the Department

established, by clear and convincing evidence, that Chase committed the predicate

acts enumerated in subsections D and E. See Tex. Fam. Code Ann.

§ 161.001(b)(1)(D), (E). Further, considering the entire record, we conclude the

disputed evidence the trial court could not reasonably have credited in favor of its

endangerment findings is not so significant that the court could not reasonably have

formed a firm belief or conviction that Chase endangered Olani. See In re J.F.C., 96

S.W.3d at 266.

We need not address the sufficiency of the evidence to support a violation of

subsection O. See In re D.S., 333 S.W.3d at 388. We overrule issues one and two,

and we decline to address issue three.

Best Interest of the Child

Trial courts have wide latitude in determining a child’s best interest. See

Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). There is a strong

30
presumption that the best interest of a child is served by keeping the child with her

parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re D.R.A., 374 S.W.3d 528,

533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Prompt and permanent

placement of the child in a safe environment is also presumed to be in the child’s

best interest. Tex. Fam. Code Ann. § 263.307(a).

The Family Code outlines nonexclusive factors to be considered in

determining whether a parent is willing and able to provide a safe environment for a

child including: the child’s age and physical and mental vulnerabilities; whether

there is a history of abusive or assaultive conduct by the child’s family or others who

have access to the child’s home; the willingness and ability of the child’s family to

seek out, accept, and complete counseling services and to cooperate with and

facilitate an appropriate agency’s close supervision; the willingness and ability of

the child’s family to effect positive environmental and personal changes within a

reasonable period of time; whether the child’s family demonstrates adequate

parenting skills, including providing the child with minimally adequate health and

nutritional care, a safe physical home environment, and an understanding of the

child’s needs and capabilities; and whether an adequate social support system

consisting of an extended family and friends is available to the child. Id.

§ 263.307(b); see also In re R.R., 209 S.W.3d at 116. The Texas Supreme Court has

articulated several additional factors that may be considered when determining

31
whether termination of parental rights is in the best interest of the child, including:

the desires of the child, the emotional and physical needs of the child now and in the

future, the emotional and physical danger to the child now and in the future, the

parental abilities of the individuals seeking custody, the programs available to assist

these individuals to promote the best interest of the child, the plans for the child by

these individuals or by the agency seeking custody, the stability of the home or

proposed placement, the acts or omissions of the parent that may indicate that the

existing parent-child relationship is not a proper one, and any excuse for the acts or

omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)

(setting forth the “Holley factors” and noting “[t]his listing is by no means

exhaustive[]”). No particular Holley factor is controlling, and evidence of one factor

may be enough to support a finding that termination is in the child’s best interest.

See M.C. v. Tex. Dep’t of Family & Protective Servs., 300 S.W.3d 305, 311 (Tex.

App.—El Paso 2009, pet. denied) (“Undisputed evidence of just one factor may be

sufficient to support a finding that termination is in the best interest of a child.”)

(citing In re C.H., 89 S.W.3d at 27); In re A.P., 184 S.W.3d 410, 414 (Tex. App.—

Dallas 2006, no pet.). Because stability and permanence are important in a child’s

emotional and physical development, termination of parental interests may be in the

child’s best interest when a parent is unable to provide a stable environment or a

reliable source for food, clothing, shelter, and emotional support. See In re J.D., 436

32
S.W.3d 105, 119-20 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing In re

T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied)); In re

T.G.R.-M., 404 S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

A parent’s past conduct is relevant to determining the parent’s present and

future ability to care for a child. See In re C.H., 89 S.W.3d at 28 (parent’s past

performance as parent is relevant to determination of present and future ability to

provide for child); In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013,

pet. denied) (factfinder may measure a parent’s future conduct by past conduct);

Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 824 (Tex. App.—Fort Worth

2007, no pet.). The best-interest determination may rely on direct or circumstantial

evidence, subjective factors, and the totality of the evidence. In re N.R.T., 338

S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). If, in light of the entire

record, no reasonable factfinder could form a firm belief or conviction that

termination was in the child’s best interest, then we must conclude that the evidence

is legally insufficient to support termination. See In re J.F.C., 96 S.W.3d at 266.

The court heard evidence that Chase had tested positive for cocaine shortly

after Olani was removed from the home. Chase did not have an explanation for his

positive drug test except that he claimed that he works with paints and “paints show

up for drugs.” The Caseworker testified that Chase failed to submit to a hair follicle

test and had not complied with drug testing requirements. Although Chase stated he

33
was working at the time of trial, the Caseworker testified that he had not provided

proof of employment or proof of income. Chase stated he was staying with another

couple, and he had only been in his current home for about two months, and the

Caseworker testified that he had not provided proof of adequate housing, or of a

residence or rent paid.

The Caseworker also testified that Chase had not completed his service plan—

specifically, he had not completed parenting classes or substance abuse therapy, he

had not maintained contact with the Caseworker, and he had not provided proof of

housing or employment. According to the Caseworker, Chase provided no financial

support for Olani during the case. The CASA testified that Janna and Chase

cancelled “[c]lose to 30[]” visitations with Olani during the case. The Caseworker

and the CASA both testified that it was in Olani’s best interest for Janna’s and

Chase’s parental rights to be terminated. The Foster Mother testified that Olani is

happy, growing well, and that she and her husband would like to adopt Olani. The

CASA testified that Olani was progressing well in her foster placement and that the

foster placement was a safe and stable environment.

Having considered the evidence related to best interest and deferring to the

trial court’s determinations on witness credibility, the resolution of conflicts in the

evidence, and the weight to be given the testimony, we conclude that the statutory

and Holley factors weigh in favor of the trial court’s finding that termination is in

34
Olani’s best interest. See Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307(a); In re

J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371-72. We conclude that the

evidence is both legally and factually sufficient to support the trial court’s finding

that termination of Chase’s parental rights is in Olani’s best interest, and we overrule

issue four.

We affirm the trial court’s order of termination.

AFFIRMED.

_________________________
LEANNE JOHNSON
Justice

Submitted on September 8, 2021
Opinion Delivered September 30, 2021

Before Golemon, C.J., Horton and Johnson, JJ.

35