                               COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                 NO. 02-12-00384-CV


In the Interest of K.R.G., A Child       §    From the 271st District Court

                                         §    of Wise County (CV10-07-592)

                                         §    March 21, 2013

                                         §    Opinion by Justice McCoy

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                      SECOND DISTRICT COURT OF APPEALS



                                      By_________________________________
                                        Justice Bob McCoy
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00384-CV


IN THE INTEREST OF K.R.G., A CHILD




                                       ------------

           FROM THE 271ST DISTRICT COURT OF WISE COUNTY

                                       ------------

                        MEMORANDUM OPINION1
                                       ------------

                                   I. Introduction

      Appellants Mother and Father separately appeal the termination of their

parental rights to K.R.G. We affirm.

                          II. Procedural Background

      K.R.G. was born on November 11, 2005, and her brother A.G. was born on

July 4, 2010. The Department of Family and Protective Services (DFPS) filed its
      1
       See Tex. R. App. P. 47.4.

                                            2
original petition in this case on July 29, 2010, with regard to both K.R.G. and

A.G., listing Mother and Father as the children’s parents. A few weeks later,

however, DFPS filed a first amended petition pertaining only to K.R.G., and it

filed a separate original petition pertaining to A.G. in trial court cause number

CV10-08-627.2

      Following a hearing on August 18, 2010, the trial court ordered DFPS to

conduct a home study on “Debra Roberts” (Mother’s mother) and “Tina Rogers”

(Father’s sister)3 and ordered Mother and Father to perform the following:

(1) submit to and cooperate fully in the preparation of a court-ordered

psychological or psychiatric evaluation and follow all recommendations outlined

in the evaluation; (2) attend counseling sessions to address the specific issues

that led to K.R.G.’s removal and any additional issues arising from the

psychological examinations or counseling sessions; (3) participate in and

successfully complete parenting classes; (4) submit and cooperate fully in the

preparation of a court-ordered drug and alcohol dependency assessment,

actively participate in any drug treatment program, and follow through with any

treatment plan recommended by the drug and alcohol dependency assessment;

      2
        We previously consolidated this appeal with cause number 02-12-00400-
CV, involving A.G., but we severed that appeal and dismissed it for want of
jurisdiction because the order terminating Mother’s and Father’s parental rights in
that case remained interlocutory. See Lehmann v. Har-Con Corp., 39 S.W.3d
191, 195 (Tex. 2001).
      3
       We use pseudonyms for the children’s caregivers and family members to
protect the children’s identities. See Tex. R. App. P. 9.8 & cmt.

                                        3
and (5) submit to random drug tests at DFPS’s request and submit urine, hair, or

blood samples within four hours of any such request by DFPS. The trial court

also ordered Mother and Father “to comply with each requirement set out in the

Department’s original, or any amended, service plan during the pendency of th[e]

suit.” Mother and Father both signed the order.

      At the January 26, 2011 permanency hearing, the trial court found that

both parents had shown “adequate and appropriate compliance with the service

plan,” but not to the extent that K.R.G. could be returned to them at that time.

The trial court left K.R.G. with “Micah Roberts” (Mother’s father) after Debra

died.4 The trial court also ordered both parents to submit immediately to hair

follicle drug exams.

      At the August 24, 2011 permanency hearing, the trial court again noted

that both parents had “demonstrated some adequate and appropriate compliance

with the service plan” but that neither parent was willing and able to provide

K.R.G. with a safe environment such that her current placement—foster care,

after K.R.G.’s (and A.G.’s) removal from Micah in May or June—remained the

most appropriate for K.R.G.’s needs.     The trial court made the same finding

about K.R.G.’s parents at the November 23, 2011 permanency hearing, and

ordered the parents to submit to hair follicle drug tests by December 7, 2011.




      4
       A.G. remained placed with K.R.G. in Micah’s home.

                                        4
      K.R.G.’s case was tried with A.G.’s case before an associate judge in June

2012, and the associate judge entered orders of termination of Mother’s and

Father’s parental rights to K.R.G. in August 2012. In the order, the associate

judge found by clear and convincing evidence that Mother and Father had

“[e]ngaged in conduct or knowingly placed the child with persons who engaged in

conduct which endangers the physical or emotional well-being of” K.R.G. and

that termination of the parent-child relationship between each parent and K.R.G.

was in K.R.G.’s best interest. See Tex. Fam. Code Ann. § 161.001(1)(E), (2)

(West Supp. 2012).

      Mother and Father filed separate requests for a de novo hearing and for

findings of fact and conclusions of law. On September 26, 2012, the associate

judge filed findings of fact and conclusions of law, which the presiding judge

adopted, finding that Mother and Father had both, by clear and convincing

evidence, engaged in endangering conduct or knowingly placed K.R.G. with

persons who engaged in such conduct; that termination of both parents’ rights to

K.R.G. was in the child’s best interest; and that appointment of DFPS as the

child’s managing conservator was in the child’s best interest. It also noted that

one of Father’s relatives “was afforded a reasonable opportunity to request

appointment” as the child’s managing conservator.5



      5
      The record reflects that the relative of Father’s mentioned in the findings
was most likely his sister Tina. However, because neither Mother nor Father
argues that K.R.G. should have been placed with Tina, we will not address the
                                       5
      The associate judge and presiding judge signed an amended order of

termination and findings of fact and conclusions of law with regard to K.R.G.—

setting out essentially the same information—on September 26, 2012. After the

presiding judge signed an order affirming the associate judge’s termination order,

these appeals followed.

                       III. Termination of Parental Rights

      Mother and Father both argue that the trial court improperly admitted their

hair follicle drug test results and that there is legally and factually insufficient

evidence to support the trial court’s endangerment or best interest findings.6

A. Standards of Review

      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163

S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may

not be based solely on the best interest of the child as determined by the trier of



portions of the record pertaining to her in as much detail as the rest of our
evidentiary recitation below.
      6
        In his first issue, Father also argues that the trial court erred by
proceeding to trial without the inclusion of A.G.’s putative father, P.A.P.,
“effectively den[ying] [P.A.P.] the chance to establish his paternity over the child.”
However, because we have severed the appeal that pertains to A.G. in cause
number 02-12-00400-CV, and no one argues that P.A.P. has any relation to
K.R.G., we need not reach this issue. See Tex. R. App. P. 47.1.

                                          6
fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987);

In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on

reh’g).

      Termination decisions must be supported by clear and convincing

evidence.    Tex. Fam. Code Ann. § 161.206(a) (West 2008); see also id.

§ 161.001. Evidence is clear and convincing if it “will produce in the mind of the

trier of fact a firm belief or conviction as to the truth of the allegations sought to

be established.”    Id. § 101.007 (West 2008).        Therefore, in evaluating the

evidence for legal sufficiency, we must determine in each appeal here whether

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

conviction that the endangerment ground in section 161.001(1)(E) and that best

interest under section 161.001(2) was proven. See In re J.P.B., 180 S.W.3d 570,

573 (Tex. 2005). To do so, we review all the evidence in the light most favorable

to the finding and judgment. Id. We resolve any disputed facts in favor of the

finding if a reasonable factfinder could have done so.        Id.   We disregard all

evidence that a reasonable factfinder could have disbelieved. Id. We consider

undisputed evidence even if it is contrary to the finding. Id. That is, we consider

evidence favorable to termination if a reasonable factfinder could, and we

disregard contrary evidence unless a reasonable factfinder could not. Id. We

cannot weigh witness credibility issues that depend on the appearance and

demeanor of the witnesses, for that is the factfinder’s province. Id. at 573, 574.



                                          7
And even when credibility issues appear in the appellate record, we defer to the

factfinder’s determinations as long as they are not unreasonable. Id. at 573.

      In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder’s findings and do not supplant the judgment with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record, a factfinder could reasonably form a firm conviction or belief that Mother

and Father each violated section 161.001(1)(E) and that termination of their

parent-child relationships would be in the best interest of the child. Tex. Fam.

Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (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 in the truth of its finding, then

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

      We will review Mother and Father’s hearsay challenges within the context

of their sufficiency challenges, noting that even when clear and convincing

evidence justifies termination, the judgment may nevertheless be reversed upon

a showing that admission of evidence was reversible error under rule of appellate

procedure 44.1. See Tex. R. App. P. 44.1 (stating that no judgment may be

reversed on appeal on the ground that the trial court made an error of law unless

the error complained of probably caused the rendition of an improper judgment or

probably prevented the appellant from properly presenting the case to the court

of appeals); Tex. Dep’t of Human Servs. v. White, 817 S.W.2d 62, 63 (Tex.

                                         8
1991). However, we review a trial court’s evidentiary rulings for an abuse of

discretion, and an erroneous admission of evidence is harmless if it is merely

cumulative. In re C.R., 263 S.W.3d 368, 370–71 (Tex. App.—Dallas 2008, no

pet.).

B. Endangerment Evidence

         1. 2007 CPS Case

         No one at trial disputed that in 2007, Tarrant County Child Protective

Services (CPS) removed eighteen-month-old K.R.G. from Mother and Father

because they had been using methamphetamine.7

              a. Methamphetamine Use

         Karon Taylor, Mother and Father’s Tarrant County CPS caseworker from

March 2007 to January 2008, testified that CPS became involved with the family

because someone had reported that both parents were using methamphetamine

and that their house was cluttered and dirty, constituting a hazard to K.R.G.

         Father admitted that he and Mother had used methamphetamine together

while K.R.G. “was in her room on the other side of the house” and that prior to

K.R.G.’s removal, they had been using drugs “the whole time [K.R.G.] was in the




         7
       During the 2007 CPS case, Mother married P.A.P. but then returned to
Father. Mother testified that Father was the biological father of both K.R.G. and
A.G. and that he had signed both children’s birth certificates. Mother said her
last contact with P.A.P. was in 2008 and that he had been redeployed to
Afghanistan after they married.

                                        9
house.”8 Mother also agreed that she and Father had used methamphetamine in

the home, and she pointed out that when they used it in the home, “it was in

[their] own personal bedroom, after [K.R.G.] was asleep at night.” Mother said

that she never used drugs without Father and that, to her knowledge, he never

used them without her, so they “mostly” used the drugs in the evenings, since

Father worked.

      Taylor stated that Mother and Father had never admitted to her that they

used illegal drugs; with regard to the drug use allegations, they instead told her

that their use of Sudafed “creat[ed] the positive . . . drug test for both

methamphetamine and amphetamine.”

             b. Mother and Father’s Home

      Taylor testified that when CPS opened the case, Mother and Father’s

home “was dirty and very cluttered with dog feces on the floor, scattered

newspapers, and it was just a—a cluttered environment” that she believed was

unsafe.

             c. CPS Service Plan

      Father had difficulty recalling the 2007 case or any of the services he had

been ordered to perform, but he acknowledged signing the participation orders,

which the trial court admitted as Petitioner’s Exhibits 1, 2, and 3 “strictly for the


      8
       Father denied that he had been selling drugs at the time but he admitted
that he and Mother never paid for the drugs they used. He claimed that the
drugs were given to them.

                                         10
purpose of the fact that they exist; not for the content of [them].”9 Mother recalled

that they had been asked to attend parenting and drug treatment classes and to

remain in contact with DFPS. Mother acknowledged that she and Father did not

complete their drug treatment classes during the 2007 case.

      Taylor said that her service plan for Mother and Father had included drug

assessment, drug treatment, parenting classes, and random drug testing and

that when Mother and Father failed to comply, DFPS petitioned for court-ordered

services, which the trial court then ordered. CPS placed K.R.G. with Mother’s

mother Debra.10 Taylor said that the case was closed in January 2008 when the

parents agreed to leave K.R.G. with Debra until they could present certificates of

completion and satisfactory participation in the parenting classes and drug

treatment.11 Wise County CPS investigator Amelia Torres testified that neither


      9
       Petitioner’s Exhibit 1 is the July 5, 2007 order for Mother and Father to
place K.R.G. with Debra and for Mother and Father to participate in CPS
services. Petitioner’s Exhibit 2 is the September 20, 2007 participation review
hearing order, and Petitioner’s Exhibit 3 is the November 8, 2007 participation
review hearing order.
      10
         Taylor testified that Debra’s house was clean, that K.R.G. had a separate
bedroom and toys, that no safety hazards were present to create a dangerous
environment, and that Debra had agreed that K.R.G. could stay for as long as it
was necessary. Debra supervised visits between Mother and Father and K.R.G.
until Father indicated that he was having difficulty with Debra and began having
his supervised visits at the CPS office. At the time CPS placed K.R.G. with
Debra, Debra was living with someone other than Mother’s father Micah; Mother
complained that this made it difficult to schedule visits. By the time Mother
became pregnant with A.G., Debra and Micah had resumed living together.
      11
       Father testified that Debra told him and Mother that they could not have
K.R.G. back but that he did not take any action to try to have K.R.G. returned to
                                         11
parent had completed the services in the 2007 case necessary for K.R.G.’s

return to them by the time she investigated after A.G.’s birth in July 2010.

        At some point, Father pleaded guilty to a charge of unlawful use of a motor

vehicle in exchange for deferred adjudication community supervision. At the time

of the 2012 termination trial, he was incarcerated and waiting to see if, in the

month following the termination trial, the trial court would reinstate or revoke his

deferred adjudication community supervision for failing to appear at a “probation

administrative hearing”; if revoked, he would start serving twelve months’

confinement in state jail in the month after the termination trial. Father denied

that his community supervision was being revoked for having had a positive drug

test.

        2. 2010 CPS Case

        Father and Mother were living together in Wise County when Mother

became pregnant with A.G.          Torres stated that the July 2010 neglectful

supervision allegation against Mother regarding A.G. after his premature birth

was found “reason to believe” because CPS “found that the mother was using

illegal drugs during her pregnancy.”12 Torres said that Mother denied any drug

use and told Torres that her drug test was positive because she had taken


them. Mother said that they were given the impression that K.R.G. had to stay
with Debra and that if they tried to remove K.R.G., Debra was to call the
authorities, and all of them—including Debra—would be arrested.
        12
       After A.G. was born two months prematurely, in July 2010, Mother
remained hospitalized for two or three weeks.

                                         12
Sudafed.13 Torres stated that when she talked with Father, he also denied using

drugs but “admit[ted] to pot smoking[,] and he asked if pot could cause the drug

test results.” Father also attributed his positive test results to a third person, Sara

Smith, who was living in the house with him and Mother during the month A.G.

was born and who had used drugs in their presence.

      A.G. remained hospitalized for two or three months after his premature

birth and then CPS placed him with K.R.G. at Debra’s house, where the two

children remained until Debra’s death. After Debra died, the children resided

with Micah for around four months before being placed into foster care. CPS

removed the children from Micah and placed them into the first of three foster

homes after Mother’s sister Nora, who had also been living in Micah’s house,

called Jennifer Ferrugia, the Wise County CPS caseworker, and “let [her] know

that her dad had hit her, and that she had fallen on top of the baby, [A.G.], while

they were doing a garage sale.”14 Nora told her that this was not the first time he

had hit her. Ferrugia, accompanied by police and another CPS worker, went to

Micah’s house and removed the children from him.


      13
        Torres said that when she asked Mother why K.R.G. had not been
returned to her, Mother told her that she knew K.R.G. was better off where she
was. Mother told Torres that the last time she had used illegal drugs was in 2008
but also told Torres that she had been clean since 2007.
      14
        Shelby Michaels, K.R.G.’s counselor, stated that K.R.G. told her that she
missed her grandfather Micah but that she could not be with him because of an
incident in which he hit her aunt and because he would spank and hit her and yell
at her.

                                          13
             a. Methamphetamine Use

        Father said that he had used methamphetamine at home while Mother was

pregnant with A.G. and while Mother was at home but that he “did not know for a

fact,” and had not suspected, that Mother had been using it too. Father admitted

that he had provided Mother with drugs when they had used them together in the

past.

        Mother denied using methamphetamine while pregnant with A.G. When

confronted with her responses to DFPS’s request for admissions, in which she

had admitted that she used illegal drugs while pregnant with A.G., Mother stated,

“I was around the drugs, but I didn’t use the drugs,” and said that her earlier

admission was untrue.15



        15
         Mother read into the record DFPS’s requests for admissions #5, #6, #12,
#13, #14, #15, #16, #21, and #25, and her responses to them. Question #5
asked, “Admit that you tested positive for illegal drugs in March of 2011,” and
Mother’s response was “Admit.” Question #6 asked, “Admit that you used illegal
drugs during the time you were pregnant with [A.G.],” and Mother’s response
was, “Admit.” Question #12 asked, “Admit that you tested positive for illegal
drugs in May of 2011,” and Mother’s response was “Admit.” Question #13 asked,
“Admit that you used illegal drugs in November of 2011,” and Mother’s response
was, “Deny.” Question #14 asked, “Admit that you used illegal drugs in
November of 2010,” and Mother’s response was, “Admit.” Question #15 asked,
“Admit that you’ve used illegal drugs since 2007,” and Mother’s response was,
“Admit.” Question #16 asked, “Admit that you used illegal drugs with [Father],”
and Mother’s response was, “Admit.” Question #21 asked, “Admit [you] used
illegal drugs during [your] CPS visit in 2007,” and Mother’s response was,
“Admit.” Question #25 asked, “Admit that [Father] knew you were using drugs
during the time you were pregnant with [A.G.],” and Mother’s response was,
“Admit.” Mother said that she was confused when she answered the requests for
admissions.

                                       14
      Mother testified that she did not use illegal drugs in July 2010, September

2010, or November 2010 but admitted that she had tested positive for illegal

drugs in November 2010, March 2011, May 2011, and November 2011. She

stated that her last drug use had probably been in October or November 2009

and that she had managed to stop using drugs on her own. However, she also

testified that between the end of the previous CPS case in 2008 and the

beginning of the 2010 case, she had used illegal drugs “off and on, but not very

often at all,” describing her usage as “[o]nce every couple of months.”

      Father said that he had stopped using drugs after A.G.’s birth and removal,

which was in July 2010; however, he also said that he had stopped using drugs

in the summer of 2011.        Father testified that after he completed a drug

assessment in 2011, he was told that he did not need to do drug treatment.

Father admitted that he had had more than three positive drug tests during the

pendency of the 2010 case, but, as in the 2007 CPS case, he blamed the

positive results on taking Sudafed for his allergies.     Father testified that he

believed Ferrugia when she told him that his drug tests were negative but not

when she told him that they were positive “[b]ecause there was no reason for it to

be showing positive.” Father said that Ferrugia told him that sinus medicine

would not show up positive on a drug test but that he did not believe her; he

nonetheless continued to take the sinus medication.

      Like Father, Mother testified that she had not used illegal drugs since

A.G.’s birth but that she had been told that some of her drug tests were positive.

                                        15
Mother also testified that she had explained to Ferrugia that when she tested

positive for drugs, it was because she was taking allergy medicine. And like

Father, Mother testified that although she did not believe Ferrugia when the

caseworker told her that over-the-counter drugs would not cause false positive

test results, she continued to take Sudafed for her allergies anyway.

      Mother said that she did her first drug assessment in this case on February

2011 and did not receive a treatment recommendation. After her second drug

assessment, she received a recommendation for outpatient treatment. Ferrugia

went over the recommendations with her, including the one for outpatient

treatment.     Ferrugia   said   that   Mother   seemed     to   understand   the

recommendations.     However, for her third assessment—which Mother had

requested—Mother went to Better Options, where she had completed her anger

management classes, even though Ferrugia had explained to her that doing the

coursework at Better Options would not satisfy the service plan requirements.

Mother insisted on going to Better Options instead of to outpatient drug

treatment. Mother told each treatment facility that assessed her that she had not

used illegal drugs since 2009.

      The trial court admitted Father’s drug assessment screening form from

Star Council and took judicial notice of everything that had already been filed in

the case, which included Mother’s Star Council drug assessment screening form.

At the February 15, 2011 Star Council intake, Father reported to the intake

worker that he had passed all of the drug screens given except for “one

                                        16
inclusive[16] mouth swab with CPS on 09/20/10.” At the second intake, which was

ordered by CPS and taken on July 14, 2011, the intake worker reported,

      Client states that he failed a hair strand test in February 2011 but
      has not used any drugs since the end of last year. He was given a
      drug screen in this office today and the results were negative. He
      does not qualify for Abuse or Dependence and will be referred back
      to CPS.

In both screenings, Father self-reported that he did not use drugs.

      Mother reported in her February 15, 2011 Star Council intake that she

“was given a UA by the hospital on 06/30/10 and was positive for Meth. She

reports that she was given a mouth swab by CPS on 09/20/10 and was positive

for Methamphetamine. Passed all others since then.”17 At the second, July 14,

2011, intake, the intake worker reported,

      Client answered ‘No’ to all the Screening questions and states that
      she has not used any drugs since November 2010. She was given
      a drug screen in this office today and the results were negative. At
      this time, client does not qualify for abuse or dependence and will be
      referred back to CPS.




      16
        During trial, the parties agreed that the meaning of “inclusive” was
“inconclusive.”
      17
        Mother also reported to the intake worker that she had experienced
depression and answered affirmatively to the questions about whether she had
ever thought of harming herself or killing herself or ever attempted to harm or kill
herself. The intake worker reported that Mother said that “[w]hen she was 14 she
over dosed [sic] on prescription medication and a friend of hers found her
unconscious and was taken to the ER. No attempts since then.” Mother replied,
“Yes,” to the question of whether she had used alcohol or drugs in the last thirty
days, and indicated that she had used alcohol.

                                        17
      Eric Werne, a certified licensed chemical dependence counselor at Better

Options, testified that he received a CPS referral for Father for substance abuse

counseling. The trial court admitted Father’s Exhibit 4, the “Addiction Severity

Index Narrative Report” completed by Werne on October 26, 2011, based on

Father’s self-reported information, and Father’s Exhibit 5, a letter from Werne to

Ferrugia.

      In the October 26, 2011 Better Options intake, Father reported that he had

lived at his current address, which neither he nor any of his family owned, for

approximately three months.         Father reported a history of using only

methamphetamine and alcohol. Werne reported,

      Client claims to have been clean and sober since March, 2011. He
      said he was tired of trying to stay out of trouble, so he quit. He
      reports to have had no use since this decision. He has had no
      positive drug screens through probation or CPS since this time.
      Counselor has no reason to believe the client misrepresented
      himself.

Father also reported to Werne that he was married and had been living with his

wife for around ten years and that he was employed; Werne noted that Father

appeared to have a viable income.

      Werne recommended that Father do the Better Options twelve-week

outpatient counseling services. Werne said that he met with Father for twelve

sessions over twelve weeks and that Father completed all of his sessions, some

of which Mother also attended. Werne said, “It’s hard to determine if they—if




                                       18
they really got anything out of it.    I mean, I didn’t have any problems with

[Father]. He seemed very defiant.”

        Werne also performed a drug and alcohol assessment on Mother and

referred her to the same twelve-week program, which she successfully

completed. Werne acknowledged that he did not do any drug testing in his

program, so he had no way of knowing—other than his clients’ self-reporting—

whether they were “clean” or “dirty.” He also acknowledged, as a former addict

himself, that drug addicts would “say anything to get themselves out of trouble.”

When asked about the percentage of people who could become and stay sober

after methamphetamine use without going through a treatment program, Werne

replied that it would be “pretty low,” and that those who have used

methamphetamine need some type of support system.

        Father’s Exhibit 5 contained the following undated letter that Werne wrote

to Ferrugia, which Ferrugia testified she had received sometime after October

2011:

        In regards to our phone discussion yesterday, I have reevaluated the
        assessment completed for [Mother] and [Father].

        It appears that [Father] and [Mother] were not completely accurate.
        Both clients reported that they had not used any drugs since March
        of this year. According to your knowledge, [Father] had a hair strand
        around two months after his last use, which showed large amounts
        of methamphetamines. You said you checked with the lab regarding
        this, and the levels of methamphetamines were as high as someone
        who was using, and using a lot. Both clients admitted to using
        methamphetamines over the period of a year, and you let me know
        that you have worked with this family since 2007, and
        methamphetamines has been an issue with them all along.

                                         19
         Another area of discrepancy has to do with their marital status.
         According to them, they are common law married. You alerted me
         yesterday that they are, in fact, not married, as [Mother] is married to
         another man.

         These issues would not change my recommendations, with the
         exception of addressing their minimization and/or denial of their
         issues.

         When asked whether she thought her drug use had ever put the children in

danger, Mother replied, “Absolutely not.” Mother then explained that she and

Father never used around K.R.G. or in front of her, even though K.R.G. may

have been home when they used drugs, stating, “We always made sure [K.R.G.]

was in a safe, secure, you know, sleep location before we ever did anything like

that.”    Mother said that she had never been given specific details on “how

anything that we’ve done has put the child in danger, or how she could have

been in danger.” When asked whether she thought that methamphetamine use

by a parent could put his or her children in danger, Mother replied, “I really don’t

have an opinion on that.” Mother said that she had never really thought about

whether it might be harmful to her children for her to use drugs. Mother said she

would not leave her children with someone who used methamphetamine not

because of drug use but because she would not leave her children with anyone

other than her family members.

               b. K.R.G.’s Special Needs

         Mother testified that K.R.G. had had no behavioral or developmental

problems before her removal.

                                           20
      Shelby Michaels, a licensed professional counselor and advanced certified

drug and alcohol prevention specialist, testified that she had provided therapy to

K.R.G. in June 2011, around six months after Debra died and after K.R.G. had

been removed from Micah and placed into her first foster home. Michaels noted

developmental delays when she first started working with K.R.G.; specifically,

she noticed an educational developmental delay and the need for speech

therapy. When she began therapy, it was hard for K.R.G., who was around age

five, to manipulate puzzle pieces that a three-year-old should have been able to

put together, and she did not know the alphabet or colors.

      Michaels testified,

             When I first met [K.R.G.], she had extreme problems with
      emotional angulation. And, obviously, the rules, following directions,
      setting physical boundaries. She was highly emotional. Fine, and
      then a very happy moment; and very sad the next.

            She had no idea about rules, boundaries, or anything. She
      had no rules or limitations. She was very easily agitated and irritated
      during our first couple of sessions.

Michaels said that K.R.G.’s temper tantrums and other behaviors were not typical

five-year-old behaviors. Specifically, when K.R.G. would go into a rage, she

would bang her head, scratch herself, hit A.G., hit the dog, and jump off her bed

“to the point where the foster parents had to remove the bed frame, and just set

the mattress in the room to keep her from hurting herself.”

      During her therapy with Michaels, K.R.G.’s behavior drastically improved,

although Michaels said that K.R.G. “still had a long way to go, but she no longer


                                        21
needed twice a week therapy for her anger, so that was definitely an

improvement.” Michaels worked with K.R.G. for over six months and said that

during that time period, K.R.G.’s diagnosis changed from adjustment disorder to

“reactive attachment disorders, marked disturbed.” She stated that K.R.G. “was

very hateful and mean to strangers, very active and hostile towards caregivers,”

and that K.R.G. continued to have problems relating and emotionally attaching to

significant people in her life.

      When asked whether K.R.G. could have been affected by her parents’

alleged drug use during the first eighteen months of her life, Michaels said that

K.R.G. could have been affected through developmental ways, from lack of

parenting skills and role modeling to “major implications on her social skills, and

her ability to relate socially and to relate to others.” Specifically, she stated that

based on her training in dealing with both drug and alcohol users,

      they cannot be emotionally there for their child. Most visibly, they’re
      not there for their child. . . .

            Meth, in particular, is going to stay in their system and have
      day—days of effects, where you may be functioning, but you’re not
      pleasant and in the moment.

            So they may not have been able to accurately identify her
      needs at the time. And she’s crying, is it because she was wet and
      needed changed? Was she hungry? Was she lonely? Did she
      need to be held and rocked?

             Then especially under crystal meth and the physical
      sensations that it gives, I—I can only form from research that holding
      a child when you’re having your own physical reaction to a drug in
      your system, could be too much for their system.


                                         22
             And if she wasn’t held enough, if she wasn’t rocked and cared
      for, then you’re going to have that have a lot to do with bonding, you
      know, how you take care of a child.

Michaels said that even occasional drug use could result in the child being

inadequately taken care of during the times of occasional use, and not meeting

the child’s physical, emotional, and social needs.

      When Michaels saw K.R.G. before visits with her parents, K.R.G. “was

normally upbeat, cheerful, and happy; ready to engage in a session,” but when

she saw her after visits with Mother and Father, K.R.G. would behave

inappropriately, including making prejudicial racial remarks, yelling, screaming,

and refusing to follow any therapy rules. Michaels said that there were times

when K.R.G. would have uncontrollable crying fits and that K.R.G. once threw a

pair of shoes at her after a visit with her parents. When visits with Mother and

Father were cancelled, K.R.G. would become sad and withdrawn and would not

engage in her therapy session.

      Michaels observed two visits between K.R.G. and her parents. The first

visit was at the foster home. K.R.G. played by herself, while her parents sat at

the table sending text messages, talking among themselves, and occasionally

feeding A.G.

      K.R.G. made an outcry of sexual abuse during the first visit that Michaels

observed. Michaels said that K.R.G. had originally made the outcry to her foster

mother and then to Michaels, and the allegation was investigated by CPS.

Michaels stated that she discussed this with Mother and Father and that Mother

                                        23
“had a lot of difficulty making eye contact; very scattered. She shifted the focus

to a blaming of [K.R.G.] and said that she was making it up and lying about it.”

Father was more appropriate in his reaction; although he did not want to believe

it, “he did not blame [K.R.G.].”

      When asked whether there was anything about the parents’ behavior

during the visits that concerned her, Michaels said that Mother’s behavior “was

really erratic, and very scattered; eyes were dilated and she couldn’t sit still and

focus, or concentrate, or stay on topic at all.” Michaels said that Father just

seemed sad and that he did not interact much during that visit.

      Michaels said that the other visit she observed was at the CPS office on

January 2, 2012. During that visit, K.R.G. was very distant and disinterested in

the family and sat and watched Michaels during the entire session. During most

of the visit, Mother was on her phone; Mother also talked with Father and played

with A.G.

      Michaels testified that under K.R.G.’s particular circumstances,

      Any caregiver who has a child with this diagnosis is going to have
      problems developing a relationship. This is not something that will
      go away overnight. She’s going to need years of therapy to help her
      make up her reattachments with her caregivers, and be able to
      relate with caregivers and authority figures in her life.

             She’s going to need someone who has a lot of patience and
      tolerance, and can handle high levels of stress, because in her
      reactivity she is going to cause a lot of stress.

            She’s also going to need somebody who can apply very
      clearcut rules and guidelines, and follow through with
      consequences; that would work for her and are not going to set that

                                        24
      reactivity off; is going to be loving and kind, an emotionally present
      person.

      Michaels testified that she thought termination of the parents’ rights to

K.R.G. and adoptive placement for K.R.G. would be in K.R.G.’s best interest

because K.R.G. had been through so much change during her six-year life and

was not fully attached to any one caregiver; she did not appear to be bonded to

her parents, and she was slowly making real connections with the foster home

that she was in. “[T]o remove her at this time would completely set back any

progress that she has made.” K.R.G. had told Michaels that she wanted to be

adopted by her current foster family, with whom she had been living for several

months by the time of the trial.

      Dr. Laura Hastings testified that she performed two psychological

evaluations on K.R.G., one in November 2010 and the other in December 2011.

The first evaluation, when K.R.G. was almost five years old, was based in part on

input from Debra. K.R.G.’s biggest fear at the time was that Debra would leave

her or die, and K.R.G. had intense separation anxiety. Dr. Hastings described

K.R.G.’s initial issues as:

            She had a lot of behavior issues that she would be intrusive
      and excessive efforts to seek attention.

             She had some anger issues; that means she had trouble
      tolerating limits that were set for her. She had some aggression
      towards others, including her grandmother. She continued to exhibit
      inappropriate behavior, despite interaction; meaning she would—she
      wasn’t really learning from consequences.

             She would do those things when she was told not to.

                                       25
            Hyper activity, trouble sustaining attention, and feeling and
      worries about being moved from her grandmother’s home.

      Dr. Hastings initially diagnosed K.R.G. as “ADHD, adjustment disorder with

a mixed disturbance of emotions and conduct, and rule out post-traumatic stress

disorder.” Debra had told Dr. Hastings that K.R.G. had been diagnosed with fetal

alcohol syndrome, and Dr. Hastings noted that hyperactivity, attention-deficit, and

lack of impulse control “can be complex and be hardwired, when there has been

exposure to drugs or alcohol.”

      When asked about whether K.R.G. said anything about her visits with her

parents, Dr. Hastings reported, “[K.R.G.] said she felt happy about seeing

biological parents at visits. At the same time acknowledged she would not object

to not seeing them if she was adopted by her foster parents.”

      Dr. Hastings performed additional testing in December 2011, including IQ

testing, achievement testing, and personality testing, and she interviewed K.R.G.

and her caregivers. She testified that her diagnostic impressions were ADHD-

combined type, oppositional defiant disorder, and lower level intellectual

functioning. Dr. Hastings said that as of the December 2011 testing, K.R.G. had

been in a foster home for “little more than a month,” so K.R.G. was under some

stress. She noted that K.R.G. had persistent boundary issues and depression,

which escalated K.R.G.’s aggression, based in part on Debra’s death.           Dr.

Hastings recommended continuing therapy, intensive structure and stability,



                                        26
psychiatric follow-ups, and close supervision because of K.R.G.’s aggression and

poor judgment and to prevent her from harming herself.

      Dr. Hastings opined that K.R.G. would need a lot of therapeutic

intervention to help her participate in relationships with caregivers, “assuming

that those caregivers are appropriate and attuned, and able to tolerate the ways

in which—[s]he can do a lot of alienating behaviors.” Dr. Hastings said that to

parent K.R.G., the person would need to be emotionally and behaviorally stable

and very tolerant “when it comes to the therapeutic guidance, because it would

require, you know, guidance and feedback about how to understand [K.R.G.] and

what she needs.”

      When asked what she thought might be the outcome for K.R.G. if she did

not receive stable and mature care and instead returned to an unstable home

situation, Dr. Hastings stated,

      Well, I think that her emotional behavior would—would escalate. I
      think it would interfere with functioning in all areas of her life,
      including at school.

              I think she would potentially become more aggressive, more
      difficult to manage, in terms of behavior; noncompliant, and more
      insecure, which, you know, would be, at this point—

             And if you look at the extremity of how insecure she was when
      she was four years old; at this time how bad—and that was extreme
      for four years old.

             ....

             She’s—she’s showing a tendency to kind of be indiscriminate
      and superficial in her attachments, and that’s—that’s pretty hard to
      turn around.

                                      27
            So I think, as is, you know, it’s—it’s going to be a challenge,
      and to experience more adversity and—

            Especially when she at first has to change caregivers again,
      could cause serious damage in her capacity to have relationships
      with people.

Dr. Hastings indicated that K.R.G.’s caregiver should “absolutely” be drug-free

and able to show a period of sobriety.

      The trial court asked Dr. Hastings what Mother and Father would need to

do if their rights to K.R.G. were not terminated, and Dr. Hastings responded,

             Well, I think they would need to make sure they are stable. I
      think they would need to know how absolutely critical it would be to
      make [K.R.G.] the entire focus, for her to be a priority.

            And how much reassurance she needs of—of her safety, and
      that her needs and her safety are the most important thing to her
      caregivers. And that the caregivers can guarantee that they can
      provide that for her.

            They would need to know that she is going to do things that
      are very frustrating, and very alienating. And that they’re going to
      need help knowing how to manage her, learning how; or maybe
      doing things differently than they’re used to.

             Learning—being open about it; being able to be taught how to
      interact with her, manage her behavior; and committing to, you
      know, just—it not being an option to make poor choices of—of their
      own.

The trial court asked Dr. Hastings what result poor parental choices could have

on K.R.G., and Dr. Hastings replied that K.R.G. would “have a real hard time

having relationships with anyone” throughout her life. Dr. Hastings stated that

what would be best for K.R.G. is to have no more changes.


                                         28
      c. Mother and Father’s Home

      Torres said that she told Mother and Father that A.G. could not come

home with them because of CPS’s concerns about their drug use, as well as the

parents’ lack of cooperation in allowing Torres to see the inside of their home.

Torres described the outside of the home as in “pretty bad condition,” with “a lot

of clutter,” and “lots of junk, and trash all around the home.” Torres said that she

could not get to the front door “because there was [sic] just boxes full of trash.”

      When Ferrugia visited Mother and Father’s home, she described it as

follows:

      The outside of the home was extremely cluttered; it was difficult to
      get to the staircase when we were inside the home.

             There was no place to sit down. She had laundry piled up on
      the couches. There were several—and by several, I mean, probably
      close to 10 or 12 televisions just all throughout the house; broken
      televisions in the house.

            The kitchen was probably the cleanest part of the house, but
      there was a—there were a lot of things on the floor, such as dog
      food, but their dog had recently passed away. And so I’m—I’m not
      sure how long that dog food had been laying out on the floor.

            Their bedroom was extremely cluttered and dirty. They were
      actually—There were actually sex toys scattered across the room.
      And there were—

             ....

            The bathroom was not cleaned at all. I couldn’t even see the
      counter; there was just stuff all over the counter.

             The bedrooms that were for the children did not have any type
      of children’s item[s] in—in the home, or in the bedrooms; it was


                                         29
        cluttered with motors and other various part[s] that [Father] uses for
        his employment.

Ferrugia acknowledged that after she discovered that Mother and Father had

moved, she visited their new home, and they had cleaned up.

        d. CPS Service Plan

        Ferrugia testified that she received the case at the end of July 2010.

Ferrugia said that at the beginning of the case, she was unable to get in contact

with Mother and Father; her first meeting with them took place in November

2010.

        When Ferrugia met with Mother—Father was at work and unable to attend

the meeting—she discussed the CPS service plan with Mother.                Ferrugia

described their conversation as follows:

              Initially, the appearance of the home was by far inappropriate
        for young children, so that was what we had discussed first and
        foremost.

              We also discussed with her giving an oral swab test. She was
        not able to produce—produce enough of saliva on a little swab that
        day, so I wasn’t able to get a reading on her oral swab.

             We discussed the parenting classes. We discussed anger
        management.       We discussed the counseling sessions, the
        psychological evaluation, and visits with the children.

Both parents agreed to perform the service plan. Ferrugia also asked them to do

a drug assessment, which they eventually did; however, although she spoke with




                                         30
Mother and Father in November 2010, she did not get their first drug and alcohol

assessment until February 2011.18

      Ferrugia testified that both Father and Mother completed their anger

management class and parenting classes, as well as their psychological

evaluations. However, although Ferrugia discussed the recommendations from

their psychological evaluations with them, Mother and Father did not follow up

with them. Mother always complied with Ferrugia’s requests for drug tests but

Father did not.19 Ferrugia stated that the last drug test was at the end of May

2012, and the last hair follicle test was in December 2011.

      Father testified that he had completed his parenting and anger

management classes20 required by his service plan, that he was able to maintain

housing21 and employment22—although he was unemployed at the time of the




      18
        Ferrugia testified that Mother and Father would not submit to urinalysis
for the first drug and alcohol assessment; she referred Mother for a second
assessment at a different facility. Ferrugia said that she only sent Mother
because she lost contact with Father after Mother moved out sometime before
May 2011.
      19
        Ferrugia said that she requested between ten and twelve hair follicle or
oral swab drug tests over the course of the case.
      20
        Father testified that he attended anger management classes to help him
deal with his “anger outbursts,” which were “mostly verbal.”
      21
        Father testified at the time of the termination trial that he would have
been living with Micah and Mother if he had not been incarcerated pending the
revocation hearing.

                                        31
trial—and that he had completed his psychological evaluation. He did not recall

when he completed his service plan. Father said that he had visited his children

“once every two weeks for two hours,” that he had missed two visits in 2012 due

to incarceration, and that he believed he had made it to all of his visits in 2011.

With regard to Father, Ferrugia said that when Mother moved in with her sister

sometime before May 2011, Ferrugia lost contact with him and that he had

stopped regularly visiting the children during that time.

      The trial court admitted Father’s certificates of completion of the Better

Options “Step-Parenting Program,” on March 10, 2011, and of the Better Options

“Anger Management for Substance Abusers,” on January 15, 2011 in Father’s

Exhibits 1 and 2, as well as Father’s letter to Ferrugia requesting to continue

individual and couples counseling, dated November 22, 2011. 23 Ferrugia said

that, unlike with Mother, CPS never recommended that Father complete an

intensive outpatient drug program, and she acknowledged that with regard to

what he had been told to do as far as having the drug assessment, Father had

complied.

      With regard to her service plan, Mother said that although she did not have

anger management issues, she attended the anger management workshop

      22
       Father testified that prior to his incarceration, he had worked for the same
employer for four years as a boat engine mechanic and had earned sufficient
income to support him, Mother, and the children.
      23
        Father said that he and Mother volunteered to do additional counseling
classes because they “had learned so much” from their previous classes.

                                         32
because her service plan required it.           Mother also had a psychological

evaluation. Mother testified that CPS did not ask her to maintain employment

because she had always been a homemaker; however, because Father might be

in jail for a year, she had started applying for jobs.

      Mother stated that she had done everything that was required of her under

her service plan, in addition to extra counseling sessions, but she acknowledged

that although her plan required her to maintain housing, she had been unable to

do that. She said that she and Father were closing on a house but that she

would be living with Micah until they did so. She indicated that her plan to pay for

the house was to complete an on-line course that she was enrolled in, describing

her employment plan as, “what it boils down to is what I’ll be doing is I’m being

paid to be a mediator between websites and ad sites. And I’ll be going in and

posting ads on other people’s websites and being paid to do so.” Mother said

that she would complete her training in two weeks, that she anticipated working

at least twenty hours per week, and that it would pay enough to take care of

herself and the children. Mother said that she had sufficient friends and family to

help her care for the children and that Micah was willing to help her financially.

Mother said that as soon as she could find P.A.P., she was getting a divorce.

      Father testified that during the first year after A.G. was removed from him

and Mother at the hospital, he and Mother had supervised visits with the children

every week at Debra’s house. However, Ferrugia said that she knew that Mother

and Father had not been visiting the children during that time because she had

                                          33
visited Debra’s home monthly to ensure the children’s safety and was in constant

telephone contact with Debra.

      Ferrugia testified that Mother and Father missed several visits with the

children—one that they tried to reschedule, one due to car trouble, one due to

oversleeping because their alarm clock did not go off, and the most recent one

due to Father’s incarceration.    They would also contact Ferrugia at the last

minute to cancel and showed up late to some of the visits that they tried to

attend.

      Ferrugia said that in the beginning, the missed visits had a negative effect

on K.R.G. and she would have tantrums, but towards the end of the case, they

did not have any effect on her. As an example, Ferrugia cited the last visit, which

Father was unable to attend: “[K.R.G.] didn’t even ask where he was.” Ferrugia

acknowledged that she had seen some visits in which K.R.G. appeared bonded

with her parents. Nonetheless, in the two-hour visits that occurred every other

week, Ferrugia said that most of the time, the parents were engaged in other

things.

      Sharon Word, who provided personal counseling for CPS clients at Better

Options, began meeting with Mother and Father in August 2011 for individual and

family counseling. They completed their twelve sessions in November 2011 and

then received an additional three sessions as an extension, which ended in

February 2012, based on Mother and Father’s request. Word stated that her

assignment was to work with them on their substance abuse, child neglect, and

                                        34
poor parenting skills issues, as well as to work with Father on his anger

management issues. Mother and Father told her that their children were in foster

care because of substance abuse and neglect, but Word did not recall any

specifics beyond that.

      When asked about whether she believed Father’s parenting skills were on

par with what they should be, Word stated, “Well, maybe a little less than—than

average awareness of things that could be done.” Word said that Father seemed

to grasp the concepts they discussed and did not seem resistant to making

changes in order to raise his children properly.

      Word said that Father had admitted to using drugs but that she believed

that Mother and Father were “clean” at the time of their sessions with her,

although she did not have access to their drug test results. Word clarified that

Mother and Father had indicated to her when she first met with them that they

had been clean for only a few months before August 2011.

      Word testified that Mother’s preliminary goals included to develop skills as

a mother and housekeeper, because at that point Mother was a stay-at-home

mother, and “there were some concerns about the condition of the household,”

as well as substance abuse issues, parenting skills, and “improving the situation

for children in her home.” She agreed that Mother initially appeared indifferent

and immature in her behavior and that Mother initially minimized the importance

of her substance abuse but that, as their sessions progressed, Mother passed

the point of denial and began to take more responsibility.      Word stated that

                                        35
Mother repeatedly expressed her desire to have her children returned to her and

completed all of her counseling sessions.

      When asked whether she thought Mother would have the skills necessary

to adequately care for her children if they were returned to her, Word stated, “I

believe that the material was presented, and I felt like she was ready to use

those skills.” When asked what Mother and Father’s primary problems were,

Word replied, “Well, obviously their past substance abuse was an issue,” as well

as their communication problems based on the couple’s different skills and ages.

      The following dialogue occurred between Word and the children’s ad litem

counsel:

            Q. Okay. Now, did you discuss with [Mother], in particular,
      potential dangers to her children because of the use of
      methamphetamine?

            A. I did.

            Q.    Was that part of your—of your regular counseling
      program?

            A. Yes.

            Q. Would you think it odd had she said she had never thought
      about the effects on—of any potential dangers to her children from
      the use of methamphetamine as a parent?

             A. It was probably not odd that people don’t see the whole
      picture when they’re using them.

           Q. So, if—if she still felt that way today, would you think that
      she had not gotten as much as she should have out of your
      counseling[?]

            A. I’d be surprised; yes.

                                        36
Word said that Mother and Father did not mention having taken drug tests that

had positive or false positive results during the same time that she was

counseling them.

      Father’s attorney asked Word whether she thought that Mother and Father

were capable of dealing with a child diagnosed with reactive attachment disorder,

and Word replied, “I think they are.” Word indicated that she felt like Father now

had the information, skills, and commitment to care for his children in a better

way, but she also admitted that she had never seen any interaction between the

parents and their children and that her recommendation was based only on her

interaction with Mother and Father. Word indicated that K.R.G.’s being moved

from the foster home to her parents’ home might be uncomfortable, with some

acting out problems on K.R.G.’s part, but that it would not be “un-resolvable” if

the parents were adequately educated on K.R.G.’s special needs, with an

appropriate adjustment period.

      Word acknowledged that she had not personally dealt with any children

with reactive attachment disorder “except in terms of discussing with parents,

or—you know, co-workers.” She acknowledged that a therapist or psychologist

who had been involved with the child would probably be more knowledgeable

about what would be in the child’s best interest as far as reuniting with her

parents or staying in the foster home.




                                         37
      When asked why CPS recommended terminating Mother’s parental rights,

Ferrugia testified that Mother had not completed or complied with her court-

ordered service plan—particularly intensive outpatient treatment—that CPS did

not believe that she could parent the children, that Mother had no means to

financially support the children with Father in jail, and that Mother had not

maintained housing or employment and was currently residing with her father

Micah, which CPS did not feel was a safe environment for the children. Ferrugia

acknowledged that if Father had not been incarcerated, CPS would not have

expected Mother to work as long as Father’s income was sufficient to support the

family. Ferrugia further testified that neither parent had maintained contact with

CPS throughout the case, that they had not apprised her that Father was on

probation, and that they had not informed CPS that they had moved in with

Micah.

      Ferrugia testified that Father’s parental rights should be terminated

because he had not obtained and maintained housing or employment and was

currently incarcerated. Ferrugia acknowledged that Father had been employed

prior to going to jail seventeen days before trial. Ferrugia testified that Mother

and Father had had several address changes during the case and had failed to

notify her and that there was a three-to-four-month period early in the case in

which she had not been able to get into contact with Father.

      With regard to endangerment, however, Ferrugia acknowledged that

during the pendency of the case, Father had not placed K.R.G. with someone

                                       38
who endangered her, although he had previously done so when Mother cared for

K.R.G. prior to K.R.G.’s initial removal and placement with Debra. Ferrugia also

acknowledged that Mother had not left K.R.G. with anyone who endangered her.

      e. Placement of the Children

      Father stated that Mother and Micah would take care of the children while

he was in jail. Father did not recall why the children had been removed from

Micah’s care and testified that Micah had visitation with the children every two

weeks.24


      24
        Father also testified that his sister Tina Rogers had said she was willing
to take the children and that he did not believe Ferrugia when she told him that
Tina had told her that she was not interested in taking them.

       Ferrugia testified that Tina was “on the fence” about taking the children
because she was concerned that the children did not really know her and that
they might be better off where they were. After a home study on Tina’s home,
where Tina, Tina’s husband, their adult daughter, and their two grandchildren
lived, Ferrugia testified that CPS had concerns about Tina’s husband’s criminal
history, which she said Tina and her husband denied having, and about proof of
income, which Tina would not provide. Ferrugia said that at the beginning of
March, Tina told Ferrugia that she just wanted to be the children’s aunt and that
she would like to see the foster parents adopt the children. Ferrugia testified that
CPS did not recommend placing the children with Tina because of their concerns
about her home study, because she had not had an ongoing relationship with the
children, and because she had previously indicated that she did not want to be a
placement for the children.

       Tina acknowledged that she had previously told CPS that she was
interested in being a placement for the children, stated that her feelings had not
changed, and explained that there had been a miscommunication with CPS.
With regard to her husband’s criminal history, Tina said that her husband had
been in a bar fight in 1999 but that during their thirteen years of marriage, there
had been nothing else. During cross-examination, when asked about some
assault charges and a DWI charge that CPS had found when it ran her
husband’s criminal history, Tina said that the first time she had heard of any of it
                                        39
        When asked whether, if the children were placed back with him and

Mother, Father was willing and committed to making sure that K.R.G. received

the treatment and therapy that she needed. Father replied, “A hundred and ten

percent.” When asked by DFPS’s attorney how Father would do that if he was in

jail, Father replied, “It’s not set that I am actually going again,” although he noted

that it was a possibility. Father said that if he went to jail, he was sure Mother

and his brother-in-law would make sure that K.R.G. would receive the care she

needed. When asked, “So, in other words, you can’t ensure that, because you’ll

be in jail, correct?” Father replied, “Correct.” Father told the trial court that he still

wanted his sister Tina to be considered as a placement for the children.

        Mother testified that she and A.G. were bonded and she and K.R.G. were

very close “until [CPS] picked up [her] children.” Mother also testified that the

children were bonded with her father Micah. Mother stated that Micah could help

her with the children and that there was nothing about him that would cause any

harm to the children. Mother testified that her understanding of why the children

had been removed from Micah was “[b]ecause he could not care for them on his

own.”

        When asked whether she was willing to do what it takes to care for K.R.G.

with regard to K.R.G.’s special needs, Mother replied, “Without a doubt.” On



was when they told her about it at the home study. Tina said that she did not
have a criminal history but acknowledged that she had been arrested for a bad
check in 2005; she said she had “gotten all that clear[ed] up.”

                                           40
cross-examination, when asked, with regard to K.R.G.’s needs and some of

A.G.’s medical issues, whether Mother believed she had the skills to provide the

children with everything they needed, Mother replied, “I believe I have the skills.

I believe it will take, you know, a little bit of extra help, but I don’t see a reason

why I couldn’t do it.”

      Ferrugia testified that the current foster family, with whom the children had

been living for seven and a half months, was prepared to adopt the children and

that the foster family had the skills and training to provide the children with what

they needed. Ferrugia acknowledged that with regard to K.R.G.’s behavior, most

of her behavioral problems started after Debra died.25 However, she also noted

that there was evidence that K.R.G. had had problems prior to Debra’s death too.

      Ferrugia described the changes she had seen in K.R.G. with regard to

K.R.G.’s current foster family, stating,

            When I first met [K.R.G.], she was very scattered. She would
      jump from one subject to—to the next; that really grabs for attention.

             ....

           I—I would like to describe when she was living with her
      grandmother as an old sole [sic]. I mean, she would—she had
      words that were far beyond what a four and five year old’s
      vocabulary should be; but yet her small words she didn’t know.



      25
        The first foster family requested that K.R.G. be removed because they
could not handle her, and Ferrugia had received reports that K.R.G. had started
acting out on A.G., covering his mouth and nose when he would cry and telling
him to shut up.

                                           41
            Now, that she is with this placement, she—she appears to
      smile more. She doesn’t have fits. She’s not as scattered. She’s
      more put together. She’s more well rounded. She just appears to
      be a typical six-year-old girl. Now, unfortunately, she’s still got some
      issues that she has to work through.

            But through therapy she’s learning how to cope with how she
      feels. How to understand her own feelings. There’s just a huge
      change in that child; huge change.

Ferrugia said that it was a change for the better.

      Marcia, K.R.G.’s and A.G.’s foster mother, testified that the children had

been in her home since November 6, 2011, and that she and her husband

planned to adopt them if the children became available for adoption. Marcia said

that K.R.G. was seeing a psychiatrist once a month, an occupational therapist

twice a week, and a play therapist once a week. The psychiatrist had prescribed

a daily dose of Adderall for K.R.G. for her ADHD.            K.R.G. was seeing an

occupational therapist because her motor skills were delayed, and she was

seeing a play therapist to help her learn how to interact with others and conduct

herself properly. Marcia stated that K.R.G. had been very aggressive with A.G.

and the foster family’s ten-year-old adopted daughter but that this behavior had

slowed quite a bit. Marcia also said that K.R.G. still constantly tells little lies and

that she and her husband had talked with her about the consequences of lying.

      Marcia said that A.G. had been sick a lot and had to have surgery to

correct his nose problems; he had had tubes in his ears and had his adenoids

removed. A.G.’s speech was delayed, but Marcia stated that every day, A.G.

would say more and they could understand him better.

                                          42
      Marcia testified that the family’s daughter considered K.R.G. to be her

sister and A.G. to be her brother and that she could relate to and talk with K.R.G.

about her prior foster experiences. Marcia said that K.R.G. only talked about her

parents before and after a visit; she and K.R.G.’s teachers had noticed that

K.R.G. would become withdrawn after a visit with them.

C. Hearsay

      In his second issue, Father complains that the trial court erred by admitting

the hair follicle drug tests and their results “because the business records

affidavits through which they were admitted did not meet the minimum

requirements necessary to obviate their preclusion as hearsay.” Likewise, in her

first point, Mother argues that admitting the results of the hair follicle tests “from a

laboratory in Ohio” was error.

      At the conclusion of the trial on June 22, 2012, the trial court stated that it

was going to “allow these tests and the hair follicles in” for the purposes cited in

In re K.C.P., 142 S.W.3d 574 (Tex. App.—Texarkana 2004, no pet.), before

Mother and Father made their additional objections. After Mother and Father

made their additional objections, however, the trial court stated, “Then I will not

admit them conditionally upon everybody going through these specifically with

this case,” and gave Mother and Father until July 10, 2012, to file their objections

to the “litigation packets.”

      Petitioner’s Exhibit 6 contained records from both Omega Laboratories and

Quest Diagnostics. The Omega documents reflect that hair was collected from

                                          43
both Mother and Father on July 19, 2010. 1.0–1.5 inches of hair was collected

from Father, corresponding to an “approximately 0–60, 90 day time frame,” and

1.5 inches of hair was collected from Mother, corresponding to an “approximately

0–90 day time frame.”        With a confirmation cutoff in the screening for

methamphetamine at 500 picograms per milligram (pg/mg) of hair, Father’s test

showed 1,942 pg/mg for amphetamine and 25,498 pg/mg for methamphetamine,

while Mother’s showed 1,691 pg/mg for amphetamine and 16,102 pg/mg for

methamphetamine.

      Other evidence already in the record, as set out above, showed that A.G.

was born July 4, 2010, and that Father admitted at trial that he had used

methamphetamine while Mother was pregnant with A.G. and said that he did not

stop using drugs until after A.G.’s birth. Therefore, because the complained-of

drug test evidence is cumulative of evidence already in the record that supported

Father’s drug use in and before July 2010, any error in the admission of this

evidence was harmless, and we overrule Father’s second issue. See C.R., 263

S.W.3d at 370–71 (overruling appellant’s complaint about the admission of her

drug test results when there was extensive other evidence that appellant had

used illegal drugs such that, even if the trial court considered the test results for

the truth of the matter, they were cumulative, rendering the error, if any,

harmless).

      Further, while Mother denied at trial that she had used methamphetamine

while pregnant with A.G., her responses to DFPS’s requests for admission

                                         44
contradicted this testimony.26 Mother also admitted that between the end of the

first CPS case in 2008 and the beginning of the instant one in 2010, she had

used illegal drugs, albeit “off and on, but not very often,” and “[o]nce every couple

of months,” and that she had not used illegal drugs since A.G.’s birth.

Furthermore, in her Star Council intake, Mother admitted that she had been given

a urinalysis at the hospital on June 30, 2010, and a mouth swab by CPS on

September 20, 2010, and that both tests were positive for methamphetamine.

Therefore, the July 19, 2010 results for Mother were also cumulative evidence

and harmless.27 See id. We overrule Mother’s first point.

D. Endangerment

      In his third issue, Father argues that K.R.G. was not in his possession

during the case and that he had testified that he was unaware that Mother had

been using drugs during her pregnancy with A.G.            He further argues that

      26
      In their briefing on the sufficiency issues, both Mother and Father
concede to having relapsed during the case.
      27
         We note that in her appellate brief, Mother only challenges the
documents from Omega Laboratories, Inc., which listed its address as 400 N.
Cleveland Ave., Mogadore, Ohio, on its drug test report. However, only Mother’s
July 19, 2010 sample was sent to Omega, and the portions of the record that
Mother refers us to in her appellate brief actually pertain to Father’s Omega
records. Mother made her objections at the conclusion of the trial, but she has
not briefed the admissibility of her February 11, 2011 and December 12, 2011
tests that were sent to Quest Diagnostics, Inc., a lab in Kansas, and which
showed a result of 19,450 pg/mg and 11,141 pg/mg for methamphetamine,
respectively. However, in light of her admissions that she had tested positive for
illegal drugs in November 2011 and March 2011, covering approximately the
same time periods, the effect of this evidence would also be cumulative even if it
had been briefed.

                                         45
because A.G. was removed at birth, his conduct could not have endangered the

child.28 In part of her second point, Mother also argues that she did not have

possession of K.R.G. and claims that she and Father’s temporary relapses were

“always followed by months of sobriety” and did not affect the child.

      1. Applicable Law

      Both parents’ rights were terminated under subsection (E) of family code

section 161.001(1), the endangerment-by-conduct ground. See Tex. Fam. Code

Ann. § 161.001(1)(E). Under subsection (E), the relevant inquiry is whether clear

and convincing evidence exists to show that the parent engaged in conduct or

knowingly placed the child with persons who engaged in conduct that

endangered the child’s physical or emotional well-being. Id. Termination under

this ground must be based on more than a single act or omission; it requires a

voluntary, deliberate, and conscious course of conduct. In re J.T.G., 121 S.W.3d

117, 125 (Tex. App.—Fort Worth 2003, no pet.). However, it is not necessary


      28
         Father admits that “it is undisputed” that he and Mother led an unstable
life prior to DFPS’s current involvement with them, that “[t]heir household was
unkempt and potentially dangerous to the children,” and that they “had
involvement with controlled substances and criminal convictions.” Nonetheless,
he contends that after DFPS removed K.R.G. and A.G., he and Mother “cleaned
up their act,” and that when they relapsed into drug use, “those instances never
affected the children,” who were in foster care. In part of her second point,
Mother concurs with Father’s assessment that prior to DFPS’s intervention, they
“lived in undesirable living conditions, had involvement with drugs and criminal
convictions,” but that DFPS’s intervention led to “numerous positive
improvements” and that their relapses did not affect the children. These
arguments, however, appear to have more to do with the trial court’s best interest
finding—which we address below—than its endangerment finding.

                                        46
that the parent’s conduct be directed at the child or that the child actually suffer

injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125.

        Further, we may look at parental conduct both before and after the child’s

birth to determine whether termination is necessary. In re D.M., 58 S.W.3d 801,

812 (Tex. App.—Fort Worth 2001, no pet.). Conduct that subjects a child to a life

of uncertainty and instability endangers the child’s physical and emotional well-

being. See In re E.A.W.S., No. 02-06-00031-CV, 2006 WL 3525367, at *10–11

(Tex. App.—Fort Worth Dec. 7, 2006, pet. denied) (mem. op.) (stating that

mother who took drug overdose while thirty-nine weeks’ pregnant endangered

unborn child’s physical well-being); see also In re U.P., 105 S.W.3d 222, 234

(Tex.    App.—Houston     [14th   Dist.]   2003,   pet.   denied)   (op.   on   reh’g)

(“Endangerment may include evidence of drug addiction and its effect on a

parent’s life and his ability to parent. Endangerment can also include knowledge

that a child’s mother abused drugs.” (citations omitted)). Evidence of how a

parent has treated another child is relevant to whether a course of conduct has

been established under subsection (E). See D.T., 34 S.W.3d at 637. And while

mere imprisonment will not, standing alone, constitute endangering conduct

under subsection (E), “if the evidence, including imprisonment, shows a course of

conduct that has the effect of endangering the physical or emotional well-being of

the children, a finding of endangerment is supportable.” In re C.D.E., No 02-12-

00021, 2012 WL 6632800, at *1, *5–6 (Tex. App.—Fort Worth Dec. 21, 2012, no

pet.) (reversing termination order when there was no evidence that Mother had

                                           47
had a drug problem when Father was incarcerated nine years before the

termination trial and Father had been incarcerated since then).

         2. Analysis

         In her responses to DFPS’s requests for admissions in which she admitted

that she had used drugs while pregnant with A.G., and in her testimony that she

had never thought about whether it might be harmful to her children for her to use

drugs, Mother provided the trial court with evidence of a continuation of the same

endangering course of conduct that she had previously engaged in when she

used methamphetamine at home prior to K.R.G.’s original removal in 2007.

Reviewed in the light most favorable to the endangerment finding and the

judgment, and deferring to the trial court’s credibility determinations, the trial

court could have reasonably concluded that Mother’s continuing course of

conduct, despite K.R.G.’s earlier removal and A.G.’s removal from her at birth,

endangered K.R.G.’s physical and emotional well-being, particularly in light of the

testimony by Shelby Michaels, about how drug users “cannot be emotionally

there for their child.” See J.P.B., 180 S.W.3d at 573. Therefore, we conclude

that the evidence is legally sufficient to support the trial court’s endangerment

finding with regard to Mother, and we overrule this portion of Mother’s second

point.

         Likewise, giving due deference to the trial court’s finding, on the entire

record—and despite Mother’s testimony that she had not used drugs while

pregnant with A.G.—we conclude that the trial court could have reasonably

                                         48
formed the same firm conviction or belief that Mother had engaged in

endangering conduct. See H.R.M., 209 S.W.3d at 108. Therefore, we conclude

that the evidence is also factually sufficient to support the trial court’s

endangerment finding with regard to Mother, and we overrule this portion of

Mother’s second point.

      Further, reviewed in the light most favorable to the endangerment finding,

although Father claimed at trial that he did not know Mother was using drugs

while pregnant with A.G., Mother admitted that he knew, and their prior pattern of

using methamphetamine together—as well as Father’s admission that a third

person had been living with them and using drugs in their presence while Mother

was pregnant with A.G.—gave the trial court sufficient evidence to conclude that

Father had also engaged in the same endangering course of conduct in 2010 as

had led to K.R.G.’s removal in 2007. See J.P.B., 180 S.W.3d at 573. Therefore,

we conclude that the evidence is legally sufficient to support the trial court’s

endangerment finding as to Father, and we overrule this portion of his third issue.

      And, giving due deference to the trial court’s finding, on the entire record—

despite Father’s argument that he could not have endangered K.R.G. because

she was never in his possession—we conclude that the trial court could have

reasonably formed the same firm conviction or belief that Father had engaged in

endangering conduct, particularly in light of his potential post-trial termination

incarceration. See H.R.M., 209 S.W.3d at 108. Therefore, we conclude that the

evidence is also factually sufficient to support the trial court’s endangerment

                                        49
finding with regard to Father, and we overrule the remainder of Father’s third

issue.

E. Best Interest

         There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). 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) (West 2008).

Factors to consider in evaluating the parent’s willingness and ability to provide

the child with a safe environment include the child’s age and physical and mental

vulnerabilities; the frequency and nature of out-of-home placements; the

magnitude, frequency, and circumstances of the harm to the child; the results of

psychiatric, psychological, or developmental evaluations of the child, the child’s

parents, other family members, or others who have access to the child’s home;

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; whether there is a history of

substance abuse 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; and whether an adequate social support system consisting of an extended

family and friends is available to the child. See id. § 263.307(b).

                                         50
      Further, we should consider whether the child’s family demonstrates

adequate parenting skills, including providing the child and other children under

the family’s care with, among other things, care, nurturance, and appropriate

discipline consistent with the child’s physical and psychological development;

guidance and supervision consistent with the child’s safety; a safe physical home

environment; protection from repeated exposure to violence even though the

violence may not be directed at the child; and an understanding of the child’s

needs and capabilities. Id. § 263.307(b); R.R., 209 S.W.3d at 116.

      Other, nonexclusive factors that the trier of fact in a termination case may

use in determining the best interest of the child include:

      (A)    the desires of the child;

      (B)    the emotional and physical needs of the child now and in the
             future;

      (C)    the emotional and physical danger to the child now and in the
             future;

      (D)    the parental abilities of the individuals seeking custody;

      (E)    the programs available to assist these individuals to promote
             the best interest of the child;

      (F)    the plans for the child by these individuals or by the agency
             seeking custody;

      (G)    the stability of the home or proposed placement;

      (H)    the acts or omissions of the parent which may indicate that the
             existing parent-child relationship is not a proper one; and

      (I)    any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).

                                         51
      These factors are not exhaustive; some listed factors may be inapplicable

to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of

just one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child.    Id.   On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

      Father argues that insufficient evidence was introduced that he would not

be able to adequately provide for K.R.G.’s emotional, physical, mental, or

spiritual needs now or in the future or that he would present an emotional or

physical danger to K.R.G. now or in the future.            He contends that “[t]he

commitment of the parents to acquire special education and training into the

needs of their children clearly controvert any possible danger to the children in

the future.” Mother makes essentially the same arguments, adding that both

parents had “participated in all services required of [sic] by the Department and

by the Court,” and that, based on “the entire record as a whole, and recognizing

the positive changes and commitments exhibited by [Mother] and [Father], a

reasonable fact finder could not form a firm conviction or belief” that termination

of her parental rights was in K.R.G.’s best interest. We disagree.

      First, during the pendency of the second CPS case brought with regard to

their parental rights to K.R.G., the record reflects that both parents failed to

maintain contact with CPS and to remain drug-free, or to engage K.R.G. at the

visits they attended, demonstrating their lack of willingness and ability to provide

                                        52
K.R.G. with a safe environment, particularly in light of the child’s mental

vulnerabilities.   See Tex. Fam. Code Ann. § 263.307(b).       Mother denied that

K.R.G. had had any developmental problems before her removal, which was

contradicted by the other evidence at trial provided by more than one of the other

witnesses who had interacted with the child. Both children were removed from

Micah based on his assaultive conduct; Mother’s response to K.R.G.’s outcry and

both parents’ plan for the children to be cared for by Micah if the children were

returned could have reinforced finding that both parents lacked the will and ability

to provide K.R.G. with a safe environment. See id. Father admitted that he

could not ensure that Mother would make sure K.R.G. received the treatment

and therapy she needed if he was in jail. See id.

       While both parents successfully completed their counseling services, the

record reflects that they were less than cooperative with regard to facilitating

CPS’s supervision, and the trial court could have found that their ability to effect

positive environmental and personal changes—particularly in light of the

descriptions of the various visits with the children that the parents attended—was

not enough to support a best interest finding in either parent’s favor. See id.

       Michaels testified that she thought termination of the parents’ rights to

K.R.G. and adoptive placement for K.R.G. would be in K.R.G.’s best interest in

light of K.R.G.’s reactive attachment disorder, because “to remove her at this

time would completely set back any progress that she has made.”             Further,

Michaels testified that K.R.G. had told her that she wanted to be adopted by her

                                        53
current foster family. Marcia, K.R.G.’s foster mother, testified that she planned to

adopt K.R.G. and A.G. if the children became available for adoption.              The

children had lived with her for over seven months by the time of trial. Ferrugia

testified that the foster family had the skills and training to provide K.R.G. and

A.G. with what they needed and described the positive changes she had seen in

K.R.G. during the time that K.R.G. had lived with Marcia.

      Viewed in the light most favorable to the best interest finding and the

judgment, we conclude that the trial court could have formed a firm belief or

conviction that termination of Mother’s and Father’s parental rights would be in

K.R.G.’s best interest. See J.P.B., 180 S.W.3d at 573. Likewise, on the entire

record, the disputed evidence contrary to the finding is not so significant that the

trial court could not have reasonably formed a firm belief or conviction in the truth

of its finding. See H.R.M., 209 S.W.3d at 108. Therefore, because the evidence

is legally and factually sufficient to support the trial court’s best interest finding,

we overrule Father’s fourth issue and the remainder of Mother’s second point.




                                          54
                               IV. Conclusion

      Having overruled Mother’s and Father’s dispositive issues, we affirm the

trial court’s judgment.



                                                BOB MCCOY
                                                JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.

DELIVERED: March 21, 2013




                                     55
