                               NUMBER 13-09-00276-CV

                               COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


                  IN THE INTEREST OF A.M., A MINOR CHILD


                On appeal from the County Court at Law No. 5
                          of Nueces County, Texas.


                            MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez

       Appellant A.T. challenges the trial court's termination of her parental rights to A.M.,

a minor child. By two issues, A.T. complains that: (1) the evidence was legally and

factually insufficient to support the trial court's findings justifying termination, see TEX . FAM .

CODE ANN . § 161.001 (Vernon Supp. 2009); and (2) the trial court erred in admitting a

doctor's report, over appellant's hearsay objection, which was used to support the court's

finding that A.T. caused A.M. to be born addicted to drugs. We affirm.
                                              I. BACKGROUND

         Appellee Texas Department of Family and Protective Services (TDFPS) first

became involved with A.M. in January 2007, when A.M. tested positive for cocaine at birth.

After further investigation, TDFPS removed A.M. from A.T.'s custody in March 2007, and

placed the child in foster care. Although A.M. was temporarily returned to A.T. in June

2008, custody remained with TDFPS. In September 2008, A.T. was arrested for driving

while intoxicated and child endangerment. As a result, A.M. was again removed by

TDFPS. A.M. was placed with the same foster family who cared for her following her birth,

after a TDFPS investigator determined that it would be unsafe to place A.M. with any

member of A.T.'s family. The foster family intervened in the termination action and

expressed a desire to adopt A.M. In February 2009, following a bench trial, the trial court

signed an order terminating A.T.'s parental rights with respect to A.M.

                                               II. DISCUSSION

A. Legal and Factual Sufficiency

         By her first issue, A.T. challenges the legal and factual sufficiency of the evidence

supporting the trial court's findings that were used to justify parental termination.1

Specifically, A.T. alleges that the evidence was insufficient to prove that A.M. was born


         1
             The following are the findings on which the trial court based term ination of A.T.'s parental rights:
(1) term ination of the parent-child relationship is in the best interest of the child; (2) the m other knowingly
placed or allowed the child to rem ain in conditions or surroundings that endangered the physical or em otional
well-being of the child; (3) the m other has been convicted or placed on com m unity supervision for being
crim inally responsible for the death or serious bodily injury of a child; (4) the m other constructively abandoned
the child; (5) the m other failed to com ply with a court order establishing actions necessary for the parent to
obtain return of the child; (6) the m other used a controlled substance in a m anner that endangered the health
or safety of the child and failed to com plete a court ordered treatm ent program or, after com pletion of a
program , continued to abuse a controlled substance; and (7) the m other has been the cause of a child being
born addicted to a controlled substance. See T EX . F AM . C OD E A N N . § 161.001(1)(D), (1)(L), (1)(N)-(P), (1)(R),
(2) (Vernon Supp. 2009).

                                                          2
addicted to cocaine and that termination of her parental rights was in A.M.'s best interest.

See id. § 161.001(1)(R), (2).

       1. Standard of Review

       Before terminating parental rights, the trial court must make a finding that the parent

committed an act prohibited by section 161.001(1) of the family code and that termination

is in the best interest of the child. Id. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005);

see also In re C.W., No. 13-08-00112-CV, 2009 WL 140524, at *2 (Tex. App.–Corpus

Christi Jan. 22, 2009, no pet.) (mem. op.). Involuntary termination of parental rights

involves fundamental constitutional rights and divests the parent and child of all legal

rights, privileges, duties, and powers normally existing between them, except for the child's

right to inherit from the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re

D.S.P., 210 S.W.3d 776, 778 (Tex. App.–Corpus Christi 2006, no pet.). For this reason,

termination must be supported by clear and convincing evidence. TEX . FAM . CODE ANN .

§ 161.001; In re J.L., 163 S.W.3d at 84; In re D.S.P., 210 S.W.3d at 778.                  This

intermediate standard falls between the preponderance of the evidence standard of civil

proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596

S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.–Fort Worth 2006,

pet. denied). It is defined as the “measure or degree of proof that will produce in the mind

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

established.” TEX . FAM . CODE ANN . § 101.007 (Vernon 2008).

       In reviewing the legal sufficiency of the evidence supporting parental termination,

we must “look at all the evidence in the light most favorable to the finding to determine



                                               3
whether a reasonable trier of fact could have formed a firm belief or conviction that its

finding was true.” In re J.L., 163 S.W.3d at 85. We must assume that the trier of fact

resolved disputed facts in favor of its finding if it was reasonable to do so. Id. We must

also consider undisputed evidence, if any, that does not support the finding. Id. at 86.

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

fact finder's findings and not supplant its judgment with our own. In re H.R.M., 209 S.W.3d

105, 108 (Tex. 2006). We review the entire record to determine whether a fact finder could

reasonably form a firm conviction or belief that the parent violated the relevant conduct

provisions of section 161.001(1) and that termination of the parent-child relationship would

be in the best interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex. 2005). If, in light of

the entire record, the disputed evidence unfavorable to the finding is so significant that a

reasonable fact finder could not have credited it and thereby formed a firm belief or

conviction in the truth of the finding, then the evidence is factually insufficient. In re

H.R.M., 209 S.W.3d at 108.

       2. Drug-Positive Birth

       Section 161.001 of the family code provides that a court may base an order

terminating the parent-child relationship on clear and convincing evidence that the parent

has "been the cause of the child being born addicted to alcohol or a controlled substance,

other than a controlled substance legally obtained by prescription . . . ." TEX . FAM . CODE

ANN . § 161.001(1)(R). Here, the trial court's termination order included a finding that

tracked this language, stating that A.T. has "been the cause of [A.M.] being born addicted




                                              4
to alcohol or a controlled substance . . . as defined by § 261.001(8), Texas Family Code."

Section 261.001(8) defines "born addicted to alcohol or controlled substance" as a child:

       (A)    who is born to a mother who during the pregnancy used a controlled
              substance . . . and
       (B)    who, after birth as a result of the mother's use of the controlled
              substance or alcohol:
              (i)    experiences observable withdrawal from the alcohol or
                     controlled substance;
              (ii)   exhibits observable or harmful effects in the child's physical
                     appearance or functioning; or
              (iii)  exhibits the demonstrable presence of alcohol or a controlled
                     substance in the child's bodily fluids.

Id. § 261.001(8) (Vernon 2008).

       The undisputed evidence at trial showed that A.T. used cocaine during her

pregnancy and that A.M. suffered observable withdrawal effects. See id. § 261.001(8)(A),

(B)(i)-(ii). A.T. admitted at trial that she had a history of drug abuse, including cocaine, and

that she used cocaine during at least the first three-and-a-half months of her pregnancy

with A.M. There was testimony at trial by both A.T. and A.M.'s foster mother that A.M.

exhibited noticeable withdrawal symptoms immediately following her birth.                When

questioned by TDFPS, A.T. generally acknowledged that A.M. had suffered withdrawal

symptoms. A.M.'s foster mother described the symptoms in detail. She stated that when

A.M. first came to their home, she was approximately six weeks old, she was frail and tiny,

and she was shaking from withdrawal. The foster mother stated that she took A.M. to the

doctor because she was concerned about the shaking. Based on this testimony and giving

due deference to the trial court's observation of the witnesses and weighing of the

evidence, we determine that a reasonable fact finder could have concluded that there was




                                               5
clear and convincing evidence that A.T. caused A.M. to be born addicted to a controlled

substance. See In re H.R.M., 209 S.W.3d at 108.2

        3. Best Interest of Child

        A.T. also challenges the sufficiency of the evidence to support the trial court's

finding that termination of her parental rights is in A.M.'s best interest. Although it is true

that keeping a child with a parent is often in the child's best interest, see In re R.R., 209

S.W.3d 112, 116 (Tex. 2006), it is also presumed that prompt and permanent placement

of the child in a safe environment is in the child's best interest. TEX . FAM . CODE ANN . §

263.307(a) (Vernon 2008). When considering whether parental termination is in the child's

best interest, the following non-exhaustive list of factors should be considered: (1) the

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

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

abilities of the parties seeking custody; (5) the programs available to assist the parties

seeking custody; (6) the plans for the child by the parties seeking custody; (7) the stability

of the home or proposed placement; (8) the acts or omissions committed by the parent

which may indicate that the existing parent-child relationship is not proper; and (9) any

excuse for the acts or omissions committed by the parent. Holley v. Adams, 544 S.W.2d

367, 372 (Tex. 1976). The party seeking parental termination is not required to prove all

nine factors. See In re C.H., 89 S.W.3d at 27 (providing that these considerations are not

exhaustive nor must “all such considerations . . . be proved as a condition precedent to


        2
             Because a trial court can involuntarily term inate parental rights based on any one predicate ground
plus a finding of the child's best interest, see In re A.V., 113 S.W .3d 355, 362 (Tex. 2003), we need not
address A.T.'s rem aining contentions regarding the trial court's findings on the other predicate grounds. See
T EX . R. A PP . P. 47.1; see also In re J.T., No. 13-08-00652-CV, 2009 W L 2077184, at *12 (Tex. App.–Corpus
Christi July 16, 2009, no pet.) (m em . op.).

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parental termination”). Moreover, in some cases, undisputed evidence of just one factor

may be sufficient to support a finding that termination is in the best interest of the child.

Id. Accordingly, we will now examine the evidence in light of these factors, as they are

relevant to this case.

              a. The desires of the child.

       Even though A.M. is a very young child, there is evidence that she has shown a

preference for being with her foster parents rather than A.T. Both TDFPS case workers

and the foster mother testified that A.M. clung to her foster mother when A.T. picked the

child up for visits and appeared uncomfortable with A.T. There was testimony that the

child cried for extended periods of time during the visits. The evidence also indicated that

A.M. was very happy every time she was returned to the care of her foster parents, she

calls her foster parents "mommy" and "daddy," and she has close relationships with her

foster parents' extended family.

              b. The emotional and physical needs of the child now and in the future;
              the emotional and physical danger to the child now and in the future;
              the parental abilities of the individuals seeking custody; the acts or
              omissions of the parent which may indicate that the existing parent-
              child relationship is not a proper one.

       Evidence of the above factors is substantial. Testimony at trial indicated that A.T.

had difficulty connecting with A.M.; the foster mother testified that she had to show A.T.

how to hold A.M. and how to comfort the child. Our review of the record reveals evidence

that A.T. only sporadically visited A.M. and could not be reliably reached by TDFPS. A.T.

was jailed twice in the year and a half after A.M. was born—once for assaulting a police

officer and once for driving while intoxicated and child endangerment. A.T. pleaded no

contest to assaulting the police officer and was convicted for child endangerment. The


                                             7
child-endangerment conviction arose from a September 2008 incident in which A.T. left

A.M. in her car at 2:00 a.m. while she went into the babysitter’s house to pick up her other

child after attending a party. When she returned to the car, the police were waiting for A.T.

and arrested her for driving while intoxicated. As a result, A.M. was returned to her foster

parents. Upon the child's return, her foster parents discovered that A.M. had a severe

diaper rash and an ear infection. The evidence showed that the ear infection was so

severe and untreated that A.M.'s ears were filled to the brim with yellow, foul-smelling pus

that contained gnats. In short, there is clear and convincing evidence that A.T. lacks

appropriate parenting skills, places A.M. in physical and emotional danger, and does not

make responsible, or even lawful, decisions that would indicate she could sustain a proper

parent-child relationship.

              c. The programs available to assist these individuals to promote the
              best interest of the child.

       In May 2007, while A.M. was in the custody of her foster parents for the first time,

the trial court ordered A.T. to complete a service plan to facilitate the return of A.M. to her

custody. A.T. completed a video parenting course and drug assessment; however, she

failed to comply with the remainder of her plan, which included regular random drug

screenings, paying child support, and attending anger management classes and individual

counseling. There was testimony that A.T. generally procrastinated in performing the goals

of her plan and seemed to prioritize her own social life over accomplishing the tasks

necessary to regain custody of A.M. And although A.T. insisted at trial that she made

every effort to attend her scheduled visits with A.M., the evidence nonetheless indicates

that her visits with A.M. were sporadic and that A.T. was unreliable in contacting TDFPS

to inform the caseworker of her whereabouts.

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              d. The plans for the child by these individuals or by the agency seeking
              custody and the stability of the home or proposed placement.

       Our review of the record indicates that A.M.'s foster parents plan to adopt her and

that TDFPS has already initiated the procedures to make that happen. A.T. testified at trial

that she is now living with her father and is in the process of obtaining her GED. A.T.

insists that she can provide a stable environment for A.M. The trial court disagreed. First

and foremost, it is undisputed that A.T.'s ability to care for A.M. is directly inhibited by the

conditions of her probation for her child endangerment conviction, conditions which

expressly forbid her to have contact with A.M. Moreover, there is evidence that A.T.'s

father has a criminal record and that A.T., herself, was in and out of foster care as a child

because of possible abuse by her parents.

       In the event that the trial court decided to terminate or deny placement with A.T.,

she also urged the court to place A.M. with one of her family members. We note that the

family members A.T. had in mind, although scheduled to testify at the bench trial, failed to

appear. Furthermore, there is evidence that these family members had criminal records

and that when TDFPS attempted to place A.M. with them after her birth, they were not

reachable and later informed TDFPS that they were unwilling to take the child. Thus, there

was sufficient evidence for the trial court to conclude that TDFPS's plan for A.M.'s adoption

by her foster parents is superior to placement with A.T. or her family.

              e. Any excuse for the acts or omissions of the parent.

       Counsel for A.T. asserted at trial that the situation has been blown out of proportion

by TDFPS, which planned from the very beginning for A.M. to be adopted by her foster

parents. A.T. also testified that she had made mistakes and assured the trial court that she

was trying to change. As previously described, however, the evidence indicates otherwise.

                                               9
Moreover, we give deference to the trial court's determination regarding the credibility of

the witnesses and will not substitute our own judgment. See In re H.R.M., 209 S.W.3d at

108. The evidence is abundant that termination of A.T.'s parental rights is in A.M.'s best

interest, and we will not second-guess the trial court's decision based on our secondary

review of the record.

       4. Conclusion

       Viewing the evidence in the light most favorable to the findings, we conclude that

a reasonable fact finder could have formed a firm belief that A.T. caused the drug-positive

birth of A.M. and that termination was in the child's best interest. See In re J.L., 163

S.W.3d at 85. Moreover, we conclude that the evidence was factually sufficient because

the disputed evidence contrary to the findings was not so significant that the trial court

could not have formed such a firm conviction or belief. See In re H.R.M., 209 S.W.3d at

108. By our holding today, we are mindful that "[w]hile parental rights are of constitutional

magnitude, they are not absolute." In re C.H., 89 S.W.3d at 26. "Just as it is imperative

for courts to recognize the constitutional underpinnings of the parent-child relationship, it

is also essential that emotional and physical interests of the child not be sacrificed merely

to preserve that right." Id. As such, we conclude that the trial court did not err in

terminating A.T.'s parental rights. A.T.'s first issue is overruled.

B. Admission of Evidence

       By her second issue, A.T. complains that the trial court erred in admitting the report

of Miguel DeLeon, M.D. over her objection that the report was hearsay. A.T. contends that

the admission of the report harmed her because it was the only evidence that A.M. was

born addicted to cocaine. Assuming without deciding that the medical record did contain


                                             10
inadmissible hearsay, we nonetheless conclude that any erroneous admission was

harmless because, as previously discussed, there was other evidence of A.M.'s drug-

positive birth introduced to the trial court, without objection, after admission of Dr. DeLeon's

record—specifically, A.T.'s admission that she used drugs during the first three and a half

months of her pregnancy and testimony by both A.T. and the foster mother that A.M.

suffered observable withdrawal symptoms immediately following her birth. See TEX . R.

APP. P. 44.1; Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989) (holding

that error in admission of evidence is not reversible unless it was reasonably calculated to

and probably did cause rendition of improper judgment); see also Volkswagen of Am., Inc.

v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (holding that error in the admission of

testimony is deemed harmless and is waived if the objecting party subsequently permits

the same or similar evidence to be introduced without objection). A.T.'s second issue is

overruled.3

                                             III. CONCLUSION

         The judgment of the trial court is affirmed.


                                                                  NELDA V. RODRIGUEZ
                                                                  Justice

Memorandum Opinion delivered and
filed this 5th day of November, 2009.


        3
            Although A.T. states in her brief that the report was inadm issible because it contained hearsay
statem ents, she also appears to m ake a cursory attack on the qualifications of the doctor and reliability of the
report. To the extent A.T. is m aking an expert challenge, however, she has not preserved this issue for our
review. Counsel for A.T. objected at trial to the content of the hospital records and the qualifications of the
record's custodian to testify as to the contents of the records but did not obtain a ruling from the trial court.
See T EX . R. A PP . P. 33.1(a). Rather, the only tim ely objections related to the challenged report that were ruled
upon by the trial court were based on hearsay and im proper predicate for a business record. Accordingly,
A.T.'s second issue in so far as it challenges the qualifications of Dr. DeLeon and the reliability of the report
is waived.

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