Affirmed and Memorandum Opinion filed July 16, 2019.




                                             In The

                        Fourteenth Court of Appeals

                                    NO. 14-19-00062-CV

           IN THE INTEREST OF L.C.L. AND M.E.M., CHILDREN


                       On Appeal from the 315th District Court
                                Harris County, Texas
                         Trial Court Cause No. 2016-03785J

                              MEMORANDUM OPINION

       Appellant F.L. (“Mother”) appeals the trial court’s final decree terminating
her parental rights with respect to her children L.C.L. (“Lorenzo”) and M.E.M.
(“Melissa”).1 The trial court terminated Mother’s parental rights on predicate
grounds of endangerment and failure to comply with the service plan for
reunification. See generally Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), and (O).
The trial court further found that termination of Mother’s rights was in the children’s

       1
         Lorenzo and Melissa are pseudonyms. Pursuant to Texas Rule of Appellate Procedure
9.8, we use fictitious names to identify the minors and other family members involved in this case.
See Tex. R. App. P. 9.8.
best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). In six issues, Mother
contends (1) the trial court erred in failing to file findings of fact and conclusions of
law; (2) the trial court violated Mother’s equal protection rights under the Texas and
United States constitutions; (3) the trial court erred in admitting evidence in violation
of the Texas and United States constitutions; and (4) the evidence is legally and
factually insufficient to support the trial court’s findings of endangerment, failure to
follow a family service plan, and that termination is in the best interest of the
children. We affirm.

                                    BACKGROUND

I.    Pretrial Proceedings

      A.     Pretrial Removal Affidavit

      On March 22, 2016, the Department received a referral alleging neglectful
supervision of Lorenzo, Melissa, and their older sister A.M. (“Andrea”). The report
stated that all three children were found home alone. Electricity to the home had
been inoperable for three days. None of the children knew where Mother was. The
referral noted that Mother “sleeps all day” and had been absent from the home
overnight at least twice. The report further noted that “there is food all over the floor
and by the front door.” The children were described as “very skinny.” At the time of
the removal Andrea was fifteen years old, Lorenzo was five, and Melissa was four.

      Over the course of a three-month investigation Mother and the children
moved. When the investigator located the family, Mother reported that she was from
Honduras and had lived in the United States for five years. Mother had five children,
the three who lived with her, and two others who lived in Honduras. Mother
submitted to a drug screening at the Department’s request. Urine analysis was
negative for all substances. A hair follicle analysis was positive for cocaine.


                                           2
      The investigator met Mother at her home and explained that due to the positive
drug test Mother would need to place the children outside the home. The investigator
provided Mother with a child caregiver resource form to be filled out with names of
potential caregivers. Mother never completed the form for possible placement
options.

      B.     Department History

      One year earlier, on January 17, 2015, the Department received a referral that
the three children had been left home unsupervised while Mother was at work. The
family was living in a trailer with a front door that could not be secured. The trailer
had no running water. The case was closed with a disposition of “ruled out.”

      Four months after the first referral, on April 24, 2015, the Department
received a referral in which Andrea stated that she did not want to return home to
Mother. It was reported that Mother was abusive toward the children and had
withdrawn Lorenzo from school because “they have threatened to take her to truancy
court.” It was also reported that Mother had threatened to take the younger children
to Honduras to live with Melissa’s father, who was described as a “known drug
addict.” It was also reported that Mother frequented clubs and may have been
working as a prostitute. A concern was noted about domestic violence “with the
mother’s husband who lives in McAllen.”

      C.     Criminal History

      Five years before the referral in the current case, in 2011, Mother was
convicted of misdemeanor driving while intoxicated and received nine months’
probation.

      The Department requested emergency custody due to Mother’s positive drug
test and leaving the children alone.

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      D.      Family Service Plan

      The Department was named temporary managing conservator and a family
service plan was put in place with the goal of returning the children to Mother. The
trial court incorporated the plan into an order of the court and required Mother to:

            Complete a psychosocial assessment conducted by the
             Children’s Crisis Care Center and follow all recommendations
             made by the evaluator;
            Provide her caseworker with a signed release of confidential
             information;
            Attend, actively participate in, and successfully complete six- to
             eight-week parenting classes with Parenting Partnership;
            Participate in domestic violence classes through Aid to Victims
             of Domestic Abuse and present certificate of completion to the
             caseworker no later than 30 days from the last class;
            Demonstrate an understanding of the adverse effects of substance
             abuse on herself and her children;
            After referral by the caseworker for substance abuse services,
             Mother is responsible for completing a substance-abuse
             assessment and completing all recommendations;
            Complete random urine drug tests throughout the duration of the
             case;
            Maintain suitable housing that is clean, stable, and free from
             safety hazards for a period of six consecutive months;
            Address and work on a realistic education and/or job skill plan,
             budget and future plans to care and protect her children;
            Actively participate in all permanency conferences, court
             hearings, family visits and activities that are centered for her
             children;
            Visit her children at the Department office twice per month; and
            Abstain from engaging in criminal conduct.



                                          4
      E.     Abandonment of Termination Petition for Andrea

      While the case was pending the trial court signed a partial nonsuit reflecting
the Department’s abandonment of its termination grounds as to Andrea. Testimony
at trial reflected that Andrea was the respondent in a parental termination case for
her own child. Trial proceeded on Mother’s rights to Melissa and Lorenzo.

II.        Trial

      Victoria Palmer, the caseworker, testified that the children were placed in
foster care that was meeting their physical and emotional needs. The foster family
was willing to adopt the children.

      Palmer testified that of the services Mother was required to complete she
completed a substance abuse assessment, a psychosocial evaluation, and parenting
classes. Mother was “very infrequent” with drug testing and failed to submit to
several tests. Mother did not maintain stable housing or stable employment. Mother
did not attend domestic violence classes or complete the recommendations from her
psychosocial evaluation. The recommendations from the psychosocial evaluation
included individual therapy. The recommendations from the substance-abuse
assessment included individual and group substance-abuse counseling. Despite the
Department’s efforts to arrange service providers, Mother did not attend individual
therapy or substance-abuse counseling.

      Mother’s drug screening results were admitted into evidence without
objection. Those results showed positive results for cocaine in the hair follicle on
May 26, 2016, October 21, 2016, November 4, 2016, November 2, 2017, November
8, 2017, and February 9, 2018. Due to Mother’s continued positive drug test results
Mother was unable to provide the children with a safe and stable environment.
Therefore, the Department stopped permitting visits with the children in May 2018.


                                         5
Palmer testified that Mother’s drug use and failure to provide a safe environment
endangered the children’s physical health and safety.

      In testifying to Mother’s positive drug tests Palmer noted that the amounts
registered in Mother’s hair fluctuated. The tests did not show a decline in use over
the two-year period the case was pending. To Palmer’s knowledge, Mother had not
attended substance-abuse treatment. Palmer spoke with Mother about the importance
of completing the family service plan. Palmer attempted to visit Mother at the
address Mother provided but Mother was never available when Palmer visited.

      At the time the children were removed Lorenzo was six years old but was not
enrolled in school. As a result, Lorenzo had to repeat first grade twice. Palmer
testified that at the time of trial both children were in a home that met all of their
needs and both children had expressed desires to stay in the foster home and to be
adopted by the foster parents.

      Mother expressed to her attorney that she did not want to testify. Mother rested
after the Department’s last witness. However, counsel for Melissa’s alleged father
called Mother to testify.

      On cross-examination Mother testified that she had not used cocaine for five
to six months before trial. Despite claiming she had not used cocaine since May
2018, Mother admitted that she did not appear for requested drug tests in June, July,
August, or September of 2018, the four months immediately before trial. Mother
was aware that a refusal to appear for a drug test would be considered a positive
result. Mother had tested positive for cocaine at the May 2018 test. Despite positive
drug tests in March and April 2018 Mother denied using cocaine. Mother admitted
using cocaine once per month, sometimes once every two months.

      As excuses for not completing the services in the family service plan Mother


                                          6
testified that she did not fully understand the services that were required. Mother
said she sought clarification from the caseworker, but the caseworker did not
respond to her messages. Mother further did not understand when she appeared at
court hearings what services she was being asked to complete. Mother did not visit
her children due to transportation and work issues.

      Mother testified that she had been living in the same apartment for
approximately ten months. Mother was working for a shipping company making
about $2,000 per month. Mother was attending school to obtain her General
Equivalency Diploma. Mother denied that the home from which the children were
removed lacked electricity.

      Mother testified that her relationship with her caseworker was “bad” because
she and the caseworker did not speak the same language. Mother used her mobile
phone to translate the caseworker’s messages. Mother testified that when she asked
to see her children the caseworker did not answer her messages. Mother testified that
she asked for a caseworker who spoke her language. A copy of a text message
conversation between Palmer and Mother was admitted into evidence. Mother
testified the following messages were exchanged in May 2018, approximately five
months before trial began:

      Caseworker: At this we are not setting up visitation.
      Mother:      Why. You gave them to adoption or what?
      Caseworker: No they haven’t been adopted.
      Mother:      Then? You know I haven’t seen them.
      Caseworker: We aren’t doing visitation because you haven’t done
      enough on your service plan, you haven’t gone to drug test when we
      request you, and the goal is unrelated adoption.
      Mother:     Every time you send me to do my test I go so I don’t know
      what you talking about. I’m done with my service plan.


                                         7
       Mother:     I need to see my children you have to teach them it is a
       long time without seeing them. You are a bad person because you have
       not shown me since January.

In the middle of Mother’s testimony trial was recessed for one month. When trial
resumed Mother testified that she had begun attending classes to address substance
abuse. Mother testified that she regretted not taking the case seriously from the
beginning.

       The trial court terminated Mother’s parental rights on the predicate grounds
of endangerment and failure to follow a service plan. See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E), and (O).

                                STANDARDS OF REVIEW

       The involuntary termination of parental rights implicates fundamental
constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A.,
374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Because of
the severity and permanency of terminating the parental relationship, Texas requires
clear and convincing evidence to support such an order. See generally Tex. Fam.
Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).

       Mother challenges on appeal the legal and factual sufficiency of the evidence
supporting the trial court’s order terminating Mother’s parental rights pursuant to
Texas Family Code section 161.001(b). Section 161.001(b) permits the termination
of a parent-child relationship if the trial court finds by clear and convincing evidence
that (1) one or more predicate acts enumerated in section 161.001(b)(1) was
committed, and (2) termination is in the best interest of the child. “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; In re J.F.C., 96 S.W.3d

                                             8
at 264.

      Reviewing Mother’s legal sufficiency challenge under the clear-and-
convincing evidentiary standard, we “should look at all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true.” In re J.O.A., 283 S.W.3d
336, 344 (Tex. 2009). We assume that the fact finder resolved disputed facts in favor
of its finding if a reasonable fact finder could do so, and we disregard all evidence
that a reasonable fact finder could have disbelieved. In re G.M.G., 444 S.W.3d 46,
52 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

      In reviewing termination findings for factual sufficiency of the evidence, we
consider and weigh all the evidence, including disputed or conflicting evidence. In
re 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.” Id. We give due deference to
the fact finder’s findings and we do not substitute our judgment for that of the fact
finder. In re H.R.M., 209 S.W.3d. 105, 108 (Tex. 2006) (per curiam).

                                      ANALYSIS

      Mother raises three issues that, if sustained, would result in rendition of
judgment. Mother’s second, third, and fifth issues read as follows:

      II.    Appellant’s 14th amendment and 5th amendment due process
      right to her fundamental liberty interest in the care, custody, and control
      of her children pursuant to Troxel v. Granville, 530 U.S. 57 (2000) and
      Art. 1 section 19 of the Texas constitution were violated when the
      District Court ordered the Termination of her parental rights without
      subjecting the State to prove its case by a “clear and convincing
      evidence” standard.
      III.   The Trial Court committed fundamental error by not following
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       the requirement established by Texas Family Code, § 161.001(b) that
       allows for termination of the parent-child relationship upon a “clear and
       convincing evidence” standard which places the burden of proof in the
       Texas Department of Family and Protective Services.
       V.     The Trial Court committed fundamental error when it terminated
       Appellant’s “parental rights” pursuant to Texas Family Code, §
       161.001(b)(1),(D),(E),(O) without legally and factually sufficient
       evidence as required by In re G. M., 596 S. W. 2d 846 (Tex. 1980) and
       In the Interest of J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
 We construe issues two, three, and five as challenges to the legal and factual
 sufficiency of the evidence to support the trial court’s findings on the predicate
 grounds for termination and the trial court’s finding that termination is in the best
 interest of the children. If disposition of an issue would result in a rendition of
 judgment, we consider that issue before addressing any issues that would result only
 in remand for a new trial. Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188,
 201 (Tex. 2003); In re S.R., 452 S.W.3d 351, 359 (Tex. App.—Houston [14th Dist.]
 2014, pet. denied).

I.     Predicate Termination Findings

       The trial court made predicate termination findings pursuant to Texas Family
 Code section 161.001(b)(1)(D), (E), and (O). Under section 161.001(b)(1), parental
 rights may be terminated if the fact finder finds by clear and convincing evidence
 that the parent has (inter alia):

       (D) knowingly placed or knowingly allowed the child to remain in
       conditions or surroundings which endanger the physical or emotional
       well-being of the child;
       (E) 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;
       . . . [or]
       (O) failed to comply with the provisions of a court order that

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      specifically established the actions necessary for the parent to obtain
      the return of the child who has been in the permanent or temporary
      managing conservatorship of the Department of Family and Protective
      Services for not less than nine months as a result of the child’s removal
      from the parent under Chapter 262 for abuse or neglect of the child[.]

Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), & (O).

      Courts have long recognized that due process “guarantees more than fair
process” and “provides heightened protection against government interference with
certain fundamental rights and liberty interests.” Troxel v. Granville, 530 U.S. 57,
65 (2000). One of the most fundamental liberty interests recognized is the interest
of parents in the care, custody, and control of their children. See id. 530 U.S. at 65–
66 (“[T]he custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can
neither supply nor hinder.”).

      In parental termination cases, due process mandates a clear and convincing
evidence standard of proof. See In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). “Due
process compels this heightened standard because terminating the parent-child
relationship imposes permanent, irrevocable consequences.” In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007).

      Only one predicate finding under section 161.001(b)(1) is necessary to
support a judgment of termination when there also is a finding that termination is in
the children’s best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Due
process requires, however, that when a parent has raised the issue of insufficiency
of the evidence to support the trial court’s findings under section 161.001(b)(1)(D)
or (E) of the Family Code, an appellate court must address at least one of those
endangerment findings to ensure a meaningful appeal. In re N.G., — S.W.3d — No.
18-0508, 2019 WL 2147263, at *3 (Tex. May 17, 2019). Due process and due course

                                          11
of law requirements also mandate that an appellate court detail its analysis for an
appeal of parental termination rights under section 161.001(b)(1)(D) or (E) of the
Family Code. Id. at *4. Following the supreme court’s mandate, we address the trial
court’s endangerment finding under subsection 161.001(b)(1)(E).

      Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s physical and emotional well-being was the direct result
of the parent’s conduct, including acts, omissions, or failure to act. In re J.T.G., 121
S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see also In re S.M.L., 171
S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Children are
endangered when the environment creates a potential for danger of which the parent
is aware but disregards. In re S.M.L., 171 S.W.3d at 477. Termination under
subsection (E) must be based on more than a single act or omission — the evidence
must demonstrate a voluntary, deliberate, and conscious course of conduct by the
parent. In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009,
no pet.).

      While endangerment under subsection (E) often involves physical
endangerment, the statute does not require that the conduct be directed at a child or
that the child actually suffer physical injury; rather, the specific danger to the child’s
well-being may be inferred from the parent’s misconduct alone. See In re S.R., 452
S.W.3d at 360; see also Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987) (“‘[E]ndanger’ means to expose to loss or injury; to jeopardize”). As a
general rule, subjecting a child to a life of uncertainty and instability endangers the
child’s physical and emotional well-being. In re J.O.A., 283 S.W.3d at 345. This
satisfies this subsection’s requirement of endangering the emotional well-being of
the child.

      A parent’s decision to engage in illegal drug use during the pendency of a

                                           12
termination suit may support a finding that the parent engaged in conduct that
endangered the child’s physical or emotional well-being. See In re A.H.A., No. 14-
12-00022-CV, 2012 WL 1474414, at *7 (Tex. App.—Houston [14th Dist.] Apr. 26,
2012, no pet.) (mem. op.). “Additionally, a fact finder reasonably can infer that a
parent’s failure to submit to court-ordered drug tests indicates the parent is avoiding
testing because they were using illegal drugs.” In re E.R.W., 528 S.W.3d 251, 265
(Tex. App.—Houston [14th Dist.] 2017, no pet.). Here, Mother asserts that the
evidence does not support the finding that she endangered Lorenzo and Melissa. We
disagree.

      The record establishes a voluntary, deliberate, and conscious course of
conduct by Mother that endangered the children’s emotional and physical well-
being. See In re C.A.B., 289 S.W.3d at 883; In re S.M.L., 171 S.W.3d at 477. Over
the course of two years Mother tested positive for cocaine six times and failed to
attend at least four additional drug screenings scheduled during the pendency of the
underlying action, allowing the presumption that Mother continued to use illegal
drugs. See In re E.R.W., 528 S.W.3d at 265. Continued illegal drug use after
children’s removal is conduct that jeopardizes parental rights and may be considered
as establishing an endangering course of conduct. In re A.A.Z., No. 14-17-00276-
CV, 2017 WL 3612259, at *9 (Tex. App.—Houston [14th Dist.] Aug. 22, 2017, pet.
denied) (mem. op.).

      Mother argues in her appellate brief that evidence showing that she continued
to use drugs while this case was pending is unreliable because “the record is devoid
of any expert testimony about how these tests are conducted.” Mother cites no
authority requiring expert testimony to allow a fact finder to infer cocaine use based
on positive hair follicle drug test results, such as Mother’s, in parental termination
cases. This court has considered this argument before and rejected it. See In re

                                          13
Z.N.M., No. 14-17-00650-CV, 2018 WL 358480, at *6 (Tex. App.—Houston [14th
Dist.] Jan. 11, 2018, no pet.) (mem. op.) (rejecting the argument that an expert was
necessary to interpret drug testing results); In re C.M.-L.G., No. 14-16-00921-CV,
2017 WL 1719133, at *10 (Tex. App.—Houston [14th Dist.] May 2, 2017, pet.
denied) (mem. op.) (same).

      Each of the drug tests was admitted into evidence and the caseworker testified
that the tests showed continual use of cocaine. A reasonable fact finder could find
that an individual repeatedly testing positive for a controlled substance during a two-
year period did so because that individual continued using drugs during those two
years. Accordingly, we conclude the trial court reasonably could have relied on the
drug test results in terminating Mother’s parental rights under section
161.001(b)(1)(E) without accompanying expert witness testimony.

      Mother further argues that she was impeded in her attempts to comply with
the family service plan because she did not receive a copy of the plan written in
Spanish and the caseworker would not communicate with her in Spanish or locate a
translator. We disagree that inability to comply with an agency’s family service plan
renders termination impossible. While it is true that in many cases failure to comply
with a family service plan is cited as evidence favoring termination, the converse is
not always true. See In re J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.—Houston [14th
Dist.] 2003, no pet.) (affirming termination despite belated parental attempts to
better their parenting abilities). “There are limits to what government programs can
do. The elements of a safe, stable, and happy childhood cannot all be reduced to a
checklist in a service plan.” In re M.G.D., 108 S.W.3d 508, 514 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied). A reasonable fact finder could have credited
Mother’s obstacles to completion of the service plan and still found sufficient
evidence of endangerment to terminate Mother’s parental rights.

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        When viewed in the light most favorable to the trial court’s finding, the
  evidence is legally sufficient to support the trial court’s determination that
  termination of Mother’s parental rights was justified under section 161.001(b)(1)(E)
  of the Family Code. See In re J.O.A., 283 S.W.3d at 344. Further, in view of the
  entire record, we conclude the disputed evidence is not so significant as to prevent
  the trial court from forming a firm belief or conviction that termination was
  warranted under section 161.001(b)(1)(E). See id. at 345. The evidence therefore
  was factually sufficient to support the trial court’s section 161.001(b)(1)(E) finding.
  See id.

        Because we conclude the evidence is legally and factually sufficient to support
  the trial court’s finding pursuant to Family Code section 161.001(b)(1)(E), we need
  not address Mother’s issues challenging the other bases for termination of her
  parental rights under section 161.001(b)(1)(D) and (O). See In re A.V., 113 S.W.3d
  at 362 (“Only one predicate finding under section [161.001(b)(1)] is necessary to
  support a judgment of termination when there is also a finding that termination is in
  the child’s best interest.”). We overrule Mother’s issue challenging the trial court’s
  finding of endangerment under subsection (E) and do not address Mother’s issues
  challenging endangerment under subsection (D) or her failure to comply with the
  family service plan under subsection (O).

II.     Best Interest of the Children

        Mother also challenges the legal and factual sufficiency of the evidence to
  support the trial court’s finding that termination of her parental rights is in the
  children’s best interest.

        The fact finder may consider the following factors to determine the best
  interest of the children: (1) the desires of the children; (2) the present and future
  physical and emotional needs of the children; (3) the present and future emotional
                                            15
and physical danger to the children; (4) the parental abilities of the persons seeking
custody; (5) the programs available to assist those persons seeking custody in
promoting the best interest of the children; (6) the plans for the children by the
individuals or agency seeking custody; (7) the stability of the home or proposed
placement; (8) acts or omissions of the parent that may indicate the existing parent-
child relationship is not appropriate; and (9) any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also Tex.
Fam. Code Ann. § 263.307(b) (Supp.) (listing factors to consider in evaluating
parents’ willingness and ability to provide the children with a safe environment); In
re E.R.W., 528 S.W.3d at 266.

       Courts apply a strong presumption that the best interest of the children is
served by keeping the children with their natural parents and the burden is on the
Department to rebut that presumption. In re D.R.A., 374 S.W.3d at 531. Prompt and
permanent placement in a safe environment is also presumed to be in the children’s
best interest. Tex. Fam. Code Ann. § 263.307(a).

       Multiple factors support the trial court’s finding that termination of Mother’s
parental rights is in the children’s best interest.

       A.     Desires of the Children

       The children were eight and six years old at the time of trial. Palmer testified
that both children were in the same foster home and the foster parents were meeting
all of the children’s physical and emotional needs. The foster parents were willing
to adopt both children. According to Palmer both children wanted to stay in the foster
home and had expressed desires to be adopted by their foster parents.

       This factor supports the trial court’s finding that termination of Mother’s
rights is in the children’s best interest.


                                             16
        B.    Present and Future Physical and Emotional Needs of the Children
        Our analysis of the present and future physical and emotional needs of the
children focuses on the children’s innate need for permanence. See In re D.R.A., 374
S.W.3d at 533. The goal of establishing a stable, permanent home for children is a
compelling government interest. See id.

        The record reflects that at the time of removal the children were not in a safe
stable home. A pattern of illegal drug use by the parent suggests that the parent is
“not willing and able to provide the child with a safe environment—a primary
consideration in determining the child’s best interest.” In re A.C., 394 S.W.3d 633,
642 (Tex. App.—Houston [1st Dist.] 2012, no pet.); see In re E.R.W., 528 S.W.3d
at 266 (“A parent’s drug use supports a finding that termination is in the best interest
of the child.”). Mother’s history of drug use and her unwillingness to seek treatment
for her use is relevant to physical danger to the children. See Holley, 544 S.W.2d at
372 (listing current and future physical danger to child as factor relevant to best-
interest determination); In re E.R.W., 528 S.W.3d at 266 (“Mother’s history of drug
abuse bespeaks a course of conduct that the fact finder reasonably could conclude
endangers [the child’s] well-being.”); see also Tex. Fam. Code Ann. § 263.307(b)(8)
(considering whether children’s family has history of substance abuse).

        This evidence also weighs against Mother under the eighth, eleventh, and
twelfth statutory factors, which consider whether Mother has a history of substance
abuse, whether Mother is willing and able to effect positive environmental and
personal changes within a reasonable period of time, and whether Mother
demonstrates adequate parenting skills. Tex. Fam. Code Ann. § 263.307(8), (11),
(12).

        This factor supports the trial court’s best-interest finding.


                                            17
      C.     Acts or Omissions of the Parent that May Indicate the Existing
             Parent-Child Relationship is Not Appropriate
      Mother’s inability to provide a safe home or enroll Lorenzo in school also
support the trial court’s best interest determination. See In re M.R., 243 S.W.3d 807,
821 (Tex. App.—Fort Worth 2007, no pet.); see also In re S.R., 452 S.W.3d at 366
(the fact finder may infer from past conduct endangering the children’s well-being
that similar conduct will recur if the children are returned to the parent).

      The record shows that Mother tested positive for several drug tests and failed
to complete at least four scheduled drug screenings during the pendency of the
underlying suit to terminate parental rights. Additionally, Mother did not take
advantage of opportunities and services provided by the Department to treat her
substance abuse. This factor weighs in favor of the trial court’s best-interest finding.

      D.     Parental Abilities of Those Seeking Custody, and Stability of the
             Home or Proposed Placement
      The factors concerning the parental abilities of those seeking custody, and the
stability of the home or proposed placement compare the Department’s plans and
proposed placement of the children with the plans and home of the parent seeking to
avoid termination. See In re D.R.A., 374 S.W.3d at 535.

      Palmer testified that both children are in the same foster home with parents
that are meeting their physical and emotional needs. The foster parents are willing
to adopt both children and the children have expressed desires to stay with the foster
parents and be adopted by them.

      On the other hand, the record does not contain any evidence suggesting that
Mother would be able to provide a long-term safe and stable environment. This
consideration strongly supports the trial court’s best interest determination.

      Viewing the evidence in the light most favorable to the judgment for our legal

                                          18
sufficiency analysis and all the evidence equally for our factual sufficiency analysis,
we conclude that a reasonable fact finder could have formed a firm belief or
conviction that termination of Mother’s parental rights was in the children’s best
interest. See Tex. Fam. Code Ann. § 161.001(b)(2). We overrule Mother’s challenge
to this finding.

       Having determined that Mother is not entitled to rendition of judgment based
on legally-insufficient evidence, we turn to Mother’s complaints that, if sustained,
would result in remand for a new trial.

III.   Finding of Fact and Conclusions of Law

       In her first issue on appeal, Mother contends reversal of the trial court’s order
is required because the trial court failed to file findings of fact and conclusions of
law. When the circumstances of a case require an appellant to guess the reason the
court ruled as it did, harm in the failure to file findings of fact may exist. In re
J.I.T.P., 99 S.W.3d 841, 848–49 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

       In a termination case such as this, the parent does not have to guess the reasons
for the trial court’s termination order because they are clearly stated in the order. In
re D.H., No. 2-05-179-CV, 2006 WL 133523, at *2 (Tex. App.—Fort Worth Jan.
19, 2006, no pet.) (mem.op.). A trial court generally must file findings of fact
separately rather than recite them in the trial court’s judgment. See Tex. R. Civ. P.
299a; In re A.A.M., No. 14-05-00740-CV, 2007 WL 1558701, at *3, n.3 (Tex.
App.—Houston [14th Dist.] May 31, 2007, no pet.) (mem. op.). But, Texas Rule of
Civil Procedure 306, entitled “Recitation of Judgment,” requires that the trial court
state in its final termination order the specific grounds for termination. See Tex. R.
Civ. P. 306. In today’s case, the trial court recited in its Final Order that the grounds
for termination were the trial court’s findings by clear and convincing evidence that
Mother engaged in the conduct described in subsections (D), (E), and (O) of section
                                           19
161.001(b)(1) and based on the court’s finding that termination of Mother’s parental
rights was in the children’s best interest. See Tex. Fam. Code § 161.001(b); Tex. R.
Civ. P. 306. Because trial courts must recite the specific grounds for termination in
their final termination orders, parties properly may assert appellate complaints
against these grounds, and an appellate court has the power to grant appropriate
appellate relief if, for example, the appellate court concludes that the trial evidence
is legally insufficient to support a finding that was a ground for termination of the
appellant’s parental rights. See Tex. Fam. Code § 161.001(b); Tex. R. Civ. P. 306;
In re P.W., — S.W.3d — No. 14-18-01070-CV, 2019 WL 2352443 at *4 (Tex.
App.—Houston [14th Dist.] June 4, 2019, no pet. h.); In re C.M.C., 554 S.W.3d 164,
173 (Tex. App.—Beaumont 2018, no pet.).

      Mother contends she cannot know upon what facts the trial court relied.
However, as this court held in In re J.I.T.P., 99 S.W.3d at 848–49, because a
complete reporter’s record was filed, Mother was able to fully brief, and we were
able to fully review, whether the judgment is supported by legally and factually
sufficient evidence. See also Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.
1989) (holding that, when reporter’s record is filed, trial court’s findings may be
challenged on both legal and factual sufficiency grounds). Therefore, the record
affirmatively shows that Mother was not harmed by the trial court’s failure to file
findings of fact and conclusions of law. We overrule Mother’s first issue.

IV.   Citizenship Status

      In Mother’s fourth issue she argues that the trial court violated her rights to
equal protection under the 14th amendment to the United States Constitution and
Article 1, section 3a of the Texas Constitution when the trial court “terminated
[Mother’s] parent-child relationship after testimony by a case worker of the
[Department] that a parent would be unfit if the parents’ country of origin was not

                                          20
the United States.” Mother raised this issue in her motion for new trial by asserting
that the trial court “impermissibly considered testimony about [Mother]’s legal
immigration status to terminate her parental rights.”

      We first note that the record does not reflect evidence, or even mention, of
Mother’s immigration status during the trial. There were two alleged fathers of the
children who did not appear at trial but were represented by counsel. On cross-
examination, counsel for Lorenzo’s alleged father asked the caseworker the
following:

      Q.     And Mr. [M.] did not do anything to bring his children – or his
      child into care, did he?
      A.     No[t] to my knowledge, no.
      Q.     And would it be your opinion that if he is found to be the father
      of his child, that he should have an opportunity to parent this child?
      [Objection overruled]
      A.     I believe there are concerns with citizenship status.
                                        *****
      THE COURT:          What kind of concerns?
      THE CASEWORKER: Mr. [M.] is not of American status and the
      children were born here, so.
      [“Nonresponsive” objection sustained]
      A.    Based on his completion of the family plan, I don’t know
      anything about this individual and his life in Honduras. It’s possible.
In subsequent cross-examination, counsel asked Palmer the following:

      Q.     Is it your knowledge that if a parent is not a citizen of the United
      States that they won’t have the ability to parent their children if the
      children are – were born in the United States, is that –
      A.     No.
      Q.     Okay. So, that wouldn’t be a deterrent; is that what you’re
      stating?

                                          21
      A.    If reunification was possible with Mr. [M.], I’d have to staff that
      with my supervisor because I don’t know how cross borders work when
      one’s – they’re of different citizenship statuses. I don’t know what
      works.

The record does not reflect Mother’s immigration status and does not reflect that the
trial court considered her “country of origin” in making its findings.

      The Equal Protection Clause provides that no state shall “deny to any person
within its jurisdiction the equal protection of the laws,” which is essentially a
directive that all persons similarly situated should be treated alike. U.S. Const.
amend. XIV, § 1; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985). The same requirements are applied under the Texas Constitution as under
the United States Constitution. Reid v. Rolling Fork Pub. Util. Dist., 979 F.2d 1084,
1089 (5th Cir.1992); Rose v. Doctors Hosp., 801 S.W.2d 841, 846 (Tex.1990). To
assert an equal-protection claim, however, a party must establish that the challenged
statute resulted in her being treated differently than other similarly situated parties.
In re J.M.C., 109 S.W.3d 591, 597 (Tex. App.—Fort Worth 2003, no pet.); Sanders
v. Palunsky, 36 S.W.3d 222, 225 (Tex. App.—Houston [14th Dist.] 2001, no pet.).

      Immigration status, standing alone, is not probative of a parent’s fitness to be
a parent to her children so as to deny her joint managing conservatorship. See
Turrubiartes v. Olvera, 539 S.W.3d 524, 529 (Tex. App.—Houston [1st Dist.] 2018,
pet. denied) (citing TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 241–42 (Tex. 2010)
(immigration status was collateral matter “not relevant to proving a material issue in
the case”)). However, Mother has presented no evidence that her immigration status
was considered by any representative of the Department or the trial court during the
pendency of the parental termination case.

      In addition to the testimony about the immigration status of one of the alleged
fathers Mother argues that her ability to complete the service plan was hampered by

                                          22
her inability to communicate with the caseworker in Spanish. The record contains a
copy of Mother’s family service plan written in English. The record does not contain
a service plan written in Spanish. The record reflects, however, that each time
Mother appeared in court a Spanish-language interpreter was employed to interpret
the proceedings. Mother claims that she was unable to complete her service plan due
to her inability to communicate effectively with the caseworker. Mother
demonstrated that she understood the tasks required by the service plan because she
completed some of them. Mother admitted into evidence an English-language text
message exchange between her and the caseworker in which they discussed
visitation. As the finder of fact and sole judge of the credibility of the witnesses, the
trial court was free to believe that Mother was able to effectively communicate with
the caseworker, and disregard any or all of Mother’s self-serving testimony. See In
re S.A.H., 420 S.W.3d 911, 927 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
We overrule Mother’s fourth issue.

IV.   Admission of Drug Screening Evidence

      In Mother’s sixth issue she contends the trial court committed fundamental
error by allowing evidence of her drug screening results in violation of the Fourth
and Fifth Amendments to the United States Constitution and Article 1, section 9 of
the Texas Constitution. Mother argues that evidence of her drug screening results
should have been excluded because the Department did not produce a warrant or
reasonable suspicion to request that she take a drug test.

      At trial the Department called the custodian of records for the Texas Alcohol
and Drug Testing Service who testified that the drug test results were records made
in the ordinary course of business by a person with personal knowledge of the
information. The custodian of records further testified that the records were made at
the time the specimens were collected. The Department introduced the results into

                                           23
evidence, Mother’s attorney reviewed them, and stated that he had no objection. By
failing to object to the drug test results Mother failed to preserve this issue for
review.

      To preserve a complaint for appellate review, an appellant must show (1) she
made the complaint to the trial court by a timely request, objection, or motion, and
(2) the trial court ruled on the request or refused to rule on the request and appellant
objected to the refusal. See Tex. R. App. P. 33.1(a); In re A.L.H., 515 S.W.3d 60, 82
(Tex. App.–Houston [14th Dist.] 2017, pet. denied). Mother did not object to the
admission of the drug test results. To the contrary, her lawyer affirmatively said he
had no objection to the admission of the results. Accordingly, Mother has not
preserved error regarding admission of the drug screening evidence. See In re W.T.,
III, No. 14-17-00136-CV, 2017 WL 3567786, at *5 (Tex. App.—Houston [14th
Dist.] Aug. 17, 2017, no pet.) (mem. op.).

      Even if Mother preserved error at trial, the evidence is not subject to exclusion
under the United States or Texas Constitutions. The United States Supreme Court
has repeatedly declined to extend the exclusionary rule to proceedings other than
criminal trials. Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363
(1998) (declining to apply rule in parole-revocation hearing); United States v. Leon,
468 U.S. 897, 909 (1984); INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984)
(declining to apply rule in civil-deportation proceeding); United States v. Janis, 428
U.S. 433, 447 (1976) (declining to apply rule in civil-tax proceeding); United States
v. Calandra, 414 U.S. 338, 343–46, 349–50 (1974) (declining to apply rule in grand-
jury proceeding). The exclusionary rule has been described as “a judicially created
remedy designed to safeguard Fourth Amendment rights generally through its
deterrent effect, rather than a personal constitutional right of the party aggrieved.”
Calandra, 414 U.S. at 348.

                                          24
      The Texas Supreme Court has likewise declined to extend the exclusionary
rule beyond criminal trials. State v. One (1) 2004 Lincoln Navigator, 494 S.W.3d
690, 694 (Tex. 2016) (“Both the Fourth Amendment to the United States
Constitution and Article I, section 9 of the Texas Constitution prohibit unreasonable
searches and seizures and require the exclusion of evidence obtained in violation of
that prohibition in criminal trials.”) (emphasis added).

      Mother further argues that the trial court should not have admitted evidence
of the drug screening results because she was not given Miranda warnings before
she submitted to a drug test. In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the
United States Supreme Court held that “the prosecution may not use statements,
whether exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to secure
the   privilege   against   self-incrimination.”   The     Court   defined   “custodial
interrogation” as “questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any
significant way.” Id. There is no evidence that Mother was taken into custody before
submitting to drug screening or that she was deprived of her freedom of action in
any significant way. Therefore, the Department was not required to issue Miranda
warnings to Mother before asking her to submit to a drug test.

      The trial court did not err in admitting evidence of Mother’s drug test results
in this civil proceeding. See One (1) 2004 Lincoln Navigator, 494 S.W.3d at 694.
We overrule Mother’s sixth issue.

                                    CONCLUSION

      The evidence is legally and factually sufficient to support the trial court’s
predicate termination finding under section 161.001(b)(1)(E) and the finding that
termination was in the best interest of the children. We overrule Mother’s challenges
                                          25
to the sufficiency of the evidence, the failure to file findings of fact and conclusions
of law, and Mother’s evidentiary challenges. We affirm the trial court’s “Final
Decree of Termination.”




                                        /s/    Ken Wise
                                               Justice



Panel consists of Justices Wise, Jewell, and Hassan (Hassan, J., dissenting opinion
to follow).




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