                                  NUMBER 13-14-00124-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI – EDINBURG

                 IN THE INTEREST OF A.E. AND A.E., CHILDREN


                        On appeal from the 135th District Court
                              of DeWitt County, Texas.


                              MEMORANDUM OPINION
                Before Justices Rodriguez, Garza, and Benavides
                  Memorandum Opinion by Justice Benavides

       In this parental termination case, appellant N.E. (Father) challenges the trial court’s

order terminating his parental rights to his daughter, A.E.1, and son, A.E.2.1 By two

issues, Father asserts: (1) that his affidavit of voluntary relinquishment was insufficient

evidence to terminate his parental rights; and (2) that the admission of hearsay testimony

regarding the results of his drug tests constituted reversible error. We affirm.


       1   We use initials for the family members to protect the children’s identities. See TEX. R. APP. P.
9.8.
                                             I. BACKGROUND

        The Texas Department of Family and Protective Services (the Department)

removed five-year-old A.E.1, a girl, and two-year-old A.E.2, a boy, from their parents’

home due to their mother, A.E.’s (Mother’s)2, and Father’s drug use.

        Kendra Leazer, the children’s caseworker, testified that she informed Father that

he was going to have a drug test on August 8, 2012 and not to “cut, color, or alter” his

hair. On the day of the test, however, she reported that Father “had shaved his head

down just short enough where they could not collect a sufficient sample.” The drug testing

facility took a sample but then labeled it “Specimen Rejected by Lab” because “there was

[an] insufficient amount of specimen to complete the testing.” Leazer reported that the

Department presumes that a drug test would be positive when a person takes affirmative

action to thwart it: “if a client fails to show, alters their hair, cutting it, coloring it, trimming

it down, [the Department] presume[s] that it’s a positive.”

        On February 22, 2013, Father, Mother, and the Department participated in a

mediation regarding the children’s conservatorship.                 At this mediation, both parents

signed an Affidavit of Voluntary Relinquishment. The affidavit provides as follows:

                                     Rule 11 Agreement

    1. [Mother] shall execute an affidavit of relinquishment of parental rights to the
       Department as to A.E.[1] and A.E.[2].

    2. The Department shall prove its case for termination of [Mother’s] rights,
       based on the relinquishment of parental rights, plus best interest.

    3. [Father] shall execute an affidavit of relinquishment of parental rights to the
       department and this shall be held by the attorney ad litem for the children.


        2  The trial court also terminated the Mother’s parental rights the children, but she did not appeal
the decision and is not a party to this appeal.


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4. The parties shall prepare an agreed final order naming the department as
   permanent managing conservator of [A.E.1 and A.E.2] and [Father] as
   possessory conservator of the children. The order shall contain the required
   findings under § 263.503(b), Texas Family Code.

5. [Father] shall obtain housing appropriate for himself and his children.

6. [Father] shall participate in services with a courtesy worker in Travis County,
   to include ongoing counseling.

7. CPS shall make the referrals necessary to set up a local courts worker and
   therapist in Travis County.

8. [Father] shall present a plan for reunification to CPS, CASA, and the
   attorney for the children that includes the following elements:

   (1) Appropriate housing for self and kids.

   (2) A budget sufficient to meet the needs for food, clothing and shelter for
       himself and the children.

   (3) A list of persons willing to assist [Father] with care of the children if
       needed (to include information sufficient for CPS to run background
       checks).

   (4) Car seats appropriate for use of the children.

9. [Father] shall report any significant change in his medical condition to the
   Department, CASA, and attorney for the children.

10. Prior to actual placement of the children, [Father] shall submit an updated
    letter from his primary care physician regarding his ability to care for the
    children.

11. Upon completion of these requirements, the parties shall either set a
    hearing on the next docket for placement of the children with [Father], or
    shall submit an agreed order for placement of the children with [Father].

12. After a period of six months following placement of the children assuming
    placement of the children remains with [Father], one of the parties shall file
    a motion to modify to name [Father] as managing conservator of the
    children.

13. Following placement of the children with [Father] and while the [D]epartment
    remains managing conservator, the Department shall monitor the children’s
    placement to ensure that the children are in a safe environment. [Father]

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       shall allow unannounced visits with the children and shall comply with drug
       [tests] as requested.

   14. [Father] shall not allow [Mother] to have contact with or access to A.E.[1]
       and/or A.E.[2].

   15. If [Father] is unable or unwilling to provide a home and appropriate care for
       the children under this agreement within the time frame laid out in
       263.503(b), the attorney for the children shall file [Father’s] relinquishment,
       and the Department shall seek a modification and termination of parental
       rights based on relinquishment.

   16. If [Father’s] parental rights are terminated, the Department shall diligently
       seek an appropriate adoptive placement of the children looking first to family
       members.

   17. Upon entry of an order naming [Father] as managing conservator of the
       children, the attorney ad litem shall tender [Father’s] relinquishment to
       [Father] or [Father’s] counsel.
       After this mediation, the court terminated Mother’s parental rights.              The

Department was appointed permanent managing conservator of A.E.1 and A.E.2 and

Father was appointed possessory conservator of the children, with the intention to reunify

him with A.E.1 and A.E.2.

       Leazer scheduled Father’s next drug test for April 15, 2013. She testified that

Father, again, had cut his hair too short to take an appropriate specimen, so the

Department noted the same presumption of a positive drug test in his record. Leazer

scheduled a follow-up drug screening for Father on June 26, 2013. This test revealed a

positive cocaine result. Leazer, along with a CASA volunteer, discussed the results of

this test with Father. Father denied ever using cocaine, but “stated the reason why

cocaine would possibly be in his system and test dirty would be from having sexual

intercourse with his wife.”

       On September 19, 2013, Father requested a drug test at a lab not affiliated with

the Department, as he felt “there was something with the CPS labs.” Father’s subsequent

                                             4
drug test at his requested independent lab showed positive results for cocaine and

marihuana. On January 8, 2014, at a random home visit, the Department asked Father

to submit to an oral cheek swab, which tested positive for marihuana. In light of the

positive drug results, the Department filed a Modification of Final Order in Suit Affecting

the Parent Child Relationship and Order to terminate Father’s parental rights.

       Father testified at the hearing. He said that no one told him he was not allowed to

cut his hair prior to the August 8, 2012 or April 15, 2013 drug tests. With regard to the

other drug tests, Father explained that he is on numerous medications to control his high-

blood pressure, HIV-positive status, and injured back. He explained that one of the

medications he takes to manage his HIV-positive status, Marinol, has THC, an active

chemical found in marihuana, which could trigger false positive results. Father testified

that he submitted a letter to the Department from his Family Nurse Practitioner, Tom Hull,

FNP, which stated that Father “is taking a prescribed medication that can frequently cause

‘false positive’ results for THC” and that “further testing may be required on [the

Department’s] part to delineate the source of the results.”

       Father also posited that the positive June 26, 2013 drug result was inaccurate

because the lab took a pubic hair sample instead of a scalp hair sample, which, according

to his attorney, has “different reliability standards and tell[s] something different than

standard hair follicles.” Father, however, had no medical expert to substantiate this claim.

Father also testified that he has “never taken cocaine in his life,” explaining that his “blood

pressure is too high and the cocaine messes with your blood pressure.” Father claimed

that he gave a list of his medications to the persons who took his drug tests and asked

them to call him if they had any questions. According to Father, he was never contacted.



                                              5
       Father explained that he completed all of his court-ordered counseling and

underwent two different psychological assessments to regain custody of his children. He

also found appropriate housing, even though he claimed it was difficult to do because the

Department refused to provide his children’s birth and social security records to secure

public housing. Father also testified that he was trying to finalize his divorce from Mother,

but could not with this open Department investigation. Finally, Father complained that

the Department unilaterally stopped his visits with his children after his first positive drug

test in June of 2013 without seeking a court order first.

       The trial court, after hearing the testimony and considering the exhibits admitted

into evidence, made several findings on the record. The court noted that “the purpose of

the [Rule 11] agreement was to provide a window of opportunity to [Father] to perform in

compliance with agreements that he made with CPS to acquire access to his children and

maintain that access.” The trial court announced that Father violated the agreement. The

court explained that while the letter from Father’s family nurse practitioner “could explain

the marihuana positive results . . . it doesn’t even talk about the positive cocaine results,

and there are three positive cocaine tests on three different hair follicle tests.”3 The court

made a finding that Father “violated that part of the agreement that required him to not

take drugs.”

       The trial court also noted that part of the agreement forbade Father from having

contact with Mother, but Father admitted on the record that he had had sexual relations

with Mother during this time and also saw her from time to time. The court explained that

it was Father’s responsibility to abide by the agreement he signed with the advice of


       3    Only the June 26, 2013 and the September 19, 2013 drug tests were positive for cocaine. The
last test, performed on January 8, 2014, was positive only for marihuana.

                                                  6
counsel, and Father did not do so. Accordingly, the court terminated Father’s parental

rights to A.E.1 and A.E.2. In its written order, the court found “by clear and convincing

evidence that [Father] executed before or after the suit is filed an unrevoked or irrevocable

affidavit of relinquishment of parental rights.” Father appealed.

                                     II. APPLICABLE LAW

       Parents' rights to "the companionship, care, custody and management" of their

children are constitutional interests "far more precious than any property right." Santosky

v. Kramer, 455 U.S. 745, 758–59 (1982); see In re E.R., 385 S.W.3d 552, 554 (Tex. 2012).

Due process requires the application of the clear and convincing evidence standard of

proof in parental termination cases. In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002);

see TEX. FAM. CODE ANN. § 161.001 (West, Westlaw through 2013 3d C.S.). "Clear and

convincing evidence" means the measure or degree of proof that will produce in the mind

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

established. In re J.F.C., 96 S.W.3d at 264; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

       A trial court may order termination of parental rights upon finding by clear and

convincing evidence that the parent has committed statutory violations enumerated in

section 161.001(1)(A) through (T) of the family code, and that termination is in the best

interest of the child. See TEX. FAM. CODE ANN. § 161.001(1), § 161.001(2). The following

non-exhaustive list is considered by courts in analyzing the best interests of a child: (1)

desires of the child; (2) emotional and physical needs of the child now and in the future;

(3) emotional and physical danger to the child now and in the future; (4) parental abilities

of individuals seeking custody; (5) programs available to assist individuals to promote the

best interest of the child; (6) plans for the child by these individuals or by the agency



                                               7
seeking custody; (7) stability of the home or proposed placement; (8) acts or omissions

of the parent which may indicate that the existing parent-child relationship is not a proper

one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544

S.W.2d 367, 372 (Tex. 1976); W. B. v. Tex. Dep't of Protective & Regulatory Servs., 82

S.W.3d 739, 742 (Tex. App.—Corpus Christi 2002, no pet.).

                               III. THE RULE 11 AGREEMENT

       By his first issue, Father contends that his affidavit of voluntary relinquishment is

insufficient evidence to terminate his parental rights, because the affidavit was executed

prior to a previous final order denying termination and the trial court was aware of the

affidavit at the time the court found that reunification was in the best interest of the

children. In other words, Father argues that use of this affidavit should be barred by res

judicata. See Barr v. Resolution Trust Corp. ex. rel. Sunbelt Federal Savings, 837 S.W.2d

627, 628 (Tex. 1992) (defining res judicata as preventing the “relitigation of a claim or

cause of action that has been finally adjudicated”); see also TEX. FAM. CODE ANN. §

161.103 (West, Westlaw through 2013 3d C.S.) (discussing affidavits of voluntary

relinquishment of parental rights).

       In support of his argument, Father cites In re D.N., 405 S.W.3d 863 (Tex. App.—

Amarillo 2013, no pet.). In D.N., the Department first attempted to terminate the parental

rights of Martha, the children’s mother, because of her illegal drug use, failure to provide

medical care for her critically ill youngest daughter, physical abandonment of her

daughters, and incarceration in January 2011. Id. at 867–68. However, despite these

serious issues, in August 2011, the Department chose to name both Martha and the

children’s father, Angel, possessory conservators with rights to access and possession



                                             8
and sought reunification of the children with their parents. Id. The next year, though, in

August 2012, the Department again sought to terminate both Martha and Angel’s parental

rights when Angel missed eight of ten visitations and failed to cooperate with the

Department. Id. at 868. Martha had remained incarcerated during this period of time.

The trial court terminated both parents’ parental rights. Id.

       The Amarillo Court of Appeals held that the trial court erred in terminating Martha’s

parental rights because it considered evidence against Martha that had previously been

considered in a termination hearing, namely, her illegal drug use, failure to provide

medical care for her critically ill youngest daughter, abandonment of her children, and

incarceration.   See id. at 871. The court concluded that the Department had not cited

section 161.004 of the Texas Family Code, which deals with “material and substantial

changes” in the circumstances of a child or parent, as a basis for termination. See id.;

TEX. FAM. CODE ANN. § 161.004 (West, Westlaw through 2013 3d C.S.). The court

concluded that it was “unable to consider the previously presented evidence of acts or

omissions occurring prior to the trial court’s order denying termination” because the

Department had not alleged that Mother’s circumstances had materially or substantially

changed. Id. Instead, Martha’s circumstances had remained exactly the same—she was

still incarcerated. Id.

       Here, Father argues that the trial court in the underlying case should not have

considered Father’s voluntary affidavit of relinquishment because it occurred prior to the

court’s decision to attempt to reunify the children with Father. However, Father’s case is

easily distinguishable from In re D.N. because, here, the Department did prove material

and substantial changes in Father’s circumstances. Section 161.004 provides as follows:



                                             9
        (a) The court may terminate the parent-child relationship after rendition of
            an order that previously denied termination of the parent-child
            relationship if:

           (1) the petition under this section is filed after the date the order denying
               termination was rendered;

           (2) the circumstances of the child, parent, sole managing conservator,
               possessory conservator, or other party affected by the order denying
               termination have materially and substantially changed since the date
               that the order was rendered;

           (3) the parent committed an act listed under Section 161.001 before the
               date the order denying termination was rendered; and

           (4) termination is in the best interest of the child.

        (b) At a hearing under this section, the court may consider evidence
            presented at a previous hearing in a suit for termination of the parent-
            child relationship of the parent with respect to the same child.

Id. § 161.004(a)–(b).

       At the hearing, the Department cited Father’s three positive drug tests on June 26,

2013 (cocaine), September 19, 2013 (cocaine and marihuana), and January 8, 2014

(marihuana) as “material and substantial changes” in Father’s ability to parent his children

since he signed the affidavit. Accordingly, the trial court could properly consider the

affidavit under section 161.004(b).

       We conclude that the trial court had clear and convincing evidence that Father

failed to pass three drug tests. See In re J.F.C., 96 S.W.3d at 264. The use of illegal

drugs constituted “material and substantial changes” in Father’s life, TEX. FAM. CODE ANN.

§ 161.004, which allowed the trial court to consider his previously executed affidavit of

relinquishment of his parental rights to his children. See id. § 161.004(b). Although

Father is correct in pointing out that the trial court’s written order only cites the affidavit as

grounds for termination, the trial court clearly stated on the record at the termination

                                               10
hearing that Father’s consistent illegal drug use and contact with Mother were also

reasons for termination. See id.; see also id. § 161.001(1)(E) (providing that engaging in

conduct that endangers the physical or emotional well-being of a child can be a ground

for termination); see also, e.g., State v. Davis, 349 S.W.3d 535, 538–39 (Tex. Crim. App.

2011) (holding generally that an oral pronouncement controls over a written

pronouncement). The trial court also pronounced that termination of Father’s parental

rights was in the children’s best interests. See TEX. FAM. CODE ANN. § 161.001(2).

       Further, we note that the argument regarding res judicata was never presented to

the trial court and, instead, is presented for the first time in this appeal. See TEX. R. APP.

P. 33.1 (listing the means by which counsel must preserve error at the trial court level).

       In light of the foregoing, we overrule Father’s first issue.

                          IV. THE ADMISSION OF THE DRUG TESTS

        By his second issue, Father asserts that the admission of the drug tests into

evidence constituted reversible error because the results were offered through a witness

with no personal knowledge of the testing, there was no evidence that the results were

scientifically reliable, and the trial court relied almost exclusively on the evidence when

determining the outcome of the case.

        The record shows that Father objected to both the June 26, 2013 and the

September 19, 2013 drug test results only after the trial court heard testimony about them.

For example, here is the exchange regarding the June 26th test:

        [Counsel for the Department]:      All right. Now, when is the next time you
                                           attempted to take a test?

        [Leazer]:                          The third time I sent him was June 26th
                                           of 2013.



                                             11
                                          ....

       [Counsel for the Department]:      And what does that report say?

       [Leazer]:                          It’s positive for cocaine.

       When counsel for the Department attempted to admit the actual test into evidence,

Father then objected as follows: “Judge, I’m going to object to Petitioner’s Exhibit Number

2 on the grounds that they haven’t laid a predicate sufficient to establish that this is a

scientifically valid test, and that it contains hearsay.” The Department responded that “we

already have it in evidence what this report says, Your Honor.” The trial court overruled

Father’s objection and admitted the test into evidence.

       To preserve error for appellate review, the complaining party must make a timely

objection specifying the grounds for the objection if the grounds are not apparent from the

context; further, the objection must be made at the earliest possible opportunity, and the

complaining party must obtain an adverse ruling from the trial court. See TEX. R. CIV. P.

33.1. Here, Father should have objected to the testimony of the drug test before Leazer,

the Department’s caseworker, testified about its results.

       Similarly, with respect to the September 19, 2013 drug test, Leazer was asked,

“And what were the results of that test?” and she replied, “It was done at Texas Health

Center in Victoria and [Father] was positive for cocaine and marihuana.” After this

testimony, when counsel for the Department attempted to admit the actual test into

evidence, Father objected: “Judge, again I’m going to object to improper predicate. They

have not laid the scientific basis for this test, and hearsay.” Again, this objection was

untimely because the contents of the report had already been admitted into evidence




                                            12
through Leazer’s testimony. And with respect to the January 8, 2014 test that was positive

for marihuana, Father did not object to its admission.

        Accordingly, we conclude that Father failed to preserve error on this issue because

his objections were untimely or he did not object. See TEX. R. APP. P. 33.1. We overrule

his second issue.

                                           CONCLUSION4

        Having overruled both of Father’s issues, we affirm the judgment of the trial court.



                                                                   __________________________
                                                                   GINA BENAVIDES
                                                                   Justice

Delivered and filed the
21st day of August, 2014.




        4On May 19, 2014, Father filed a motion for leave for an extension of time to file appellant’s brief.
We carried the motion with this case and now grant it.

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