       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-19-00625-CV


                                    F. C., Jr. and A. R., Appellants

                                                   v.

               Texas Department of Family and Protective Services, Appellee


                 FROM THE 146TH DISTRICT COURT OF BELL COUNTY
       NO. 295,562-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING



                            MEMORANDUM OPINION


               F.C., Jr. (Father) and A.R. (Mother) appeal the trial court’s final decree

terminating their parental rights to their triplets, who were almost two at the time of trial. Father

and Mother each assert that the trial court made erroneous evidentiary rulings and improperly

denied their motions for mistrial and that the evidence is legally and factually insufficient to

support the jury’s termination findings. For the following reasons, we will affirm the trial

court’s final termination decree.


                                           BACKGROUND

               The Department filed a petition to terminate Mother’s and Father’s parental rights

to the children in September 2017. An associate judge conducted a bench trial on August 28,

2018, after which it rendered a decree terminating both parents’ rights to the children. Mother

and Father each filed requests for a de novo hearing and jury trial. See Tex. Fam. Code

§§ 201.012 (providing for de novo hearing of associate judge’s order), .015(i) (providing for jury
trial in de novo hearing if jury trial did not occur in prior proceeding). The district court

conducted a four-day jury trial in July 2019, after which it rendered a final decree terminating

both parents’ rights to the children. Mother and Father filed motions for new trial, which were

denied by operation of law, and then notices of appeal.


                                   STANDARD OF REVIEW

               A trial court may terminate a parent’s rights to his or her child if clear and

convincing evidence shows: (1) the parent has committed conduct that amounts to a statutory

ground for termination, and (2) termination of the parent’s rights would be in the child’s best

interest. Id. § 161.001; In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). In reviewing the legal

sufficiency of the evidence in such a case, we look at all the evidence in the light most favorable

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

conviction that the finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume

that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could

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

to be incredible. Id.; see In re K.M.L., 443 S.W.3d 101, 112–13 (Tex. 2014). We “should not

disregard undisputed facts that do not support” the determination, and “even evidence that does

more than raise surmise and suspicion will not suffice unless that evidence is capable of

producing a firm belief or conviction that the allegation is true.” K.M.L., 443 S.W.3d at 113.

               In evaluating factual sufficiency, we view the entire record and uphold the finding

unless the disputed evidence that could not reasonably have been credited in favor of a finding is

so significant that the factfinder could not reasonably have formed a firm belief or conviction

that the Department’s allegations are true. In re A.B., 437 S.W.3d 498, 502–03 (Tex. 2014). We

defer to the factfinder’s reasonable determination on issues of credibility that involve an

                                                 2
evaluation of appearance or demeanor. J.P.B., 180 S.W.3d at 573; see A.B., 437 S.W.3d at 503

(requiring reviewing court to defer to “factfinder, who, having full opportunity to observe witness

testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses”).

               We review a trial court’s evidentiary rulings for abuse of discretion. Southwest

Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016). The appellate court may

reverse a trial court’s judgment based on an error in the admission or exclusion of evidence only

if the appellate court concludes that the trial court made an error of law that probably caused the

rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1). Similarly, we review a trial

court’s ruling on a motion for mistrial for abuse of discretion, upholding the ruling if it is within

the “zone of reasonable disagreement.” S.A., Jr. v. Texas Dep’t of Family & Protective Servs.,

No. 03-17-00790-CV, 2018 WL 1096012, at *2 (Tex. App.—Austin Mar. 1, 2018, no pet.)

(mem. op.).


                               SUMMARY OF THE EVIDENCE

               The testimony and other admitted evidence relevant to the jury’s statutory-

predicate and best-interest findings was as follows:


Testimony of CPS investigator

               The CPS investigator testified that she became involved with this case in

September 2017 after the Department received a report that Mother had been in a car accident

while pregnant with triplets, left the hospital after the accident against doctor’s orders, and had

reported use of methamphetamine and marijuana while pregnant. The investigator testified that

Mother told her at their initial meeting that she had used methamphetamine, marijuana, and

Adderall during her pregnancy even after she knew that she was pregnant.


                                                  3
Testimony of CPS conservator for the triplets

               The CPS conservator for the triplets testified that the court-ordered Family

Service Plan required Mother and Father to take any kind of drug test the Department required,

at any time. On several occasions Father refused to take the oral-swab drug tests that the

conservator required of him as a condition of having visitations with the triplets; his refusal

resulted in his being unable to have the corresponding visitation. The Department considers a

refusal to take a drug test a “positive” test, and the Department switched to having Father submit

to oral-swab tests because of its concerns about his continued drug use and his attempts to cheat

on the tests, which information the conservator obtained from the triplets’ caregivers. Father was

unable to demonstrate that he had a safe, suitable home for the triplets because he would not

allow the conservator to visit his home and did not complete his court-ordered counseling.

Mother did not complete her court-ordered counseling and did not stop using drugs, as required

by the Family Service Plan.

               At trial, it had been about a year since either Mother or Father had seen the

triplets. In February 2018 the Department’s permanency goal changed from family reunification

with a concurrent goal of relative placement to adoption after Mother tested positive a few times

for methamphetamine and Father had a methamphetamine-positive hair-follicle test. The change

to the adoption goal was an effort to provide the triplets more permanency and stability.


Testimony of the guardian ad litem

               The children’s guardian ad litem testified that she believed it was in their

best interest that the parental rights of Mother and Father be terminated. She explained that

permanency and stability is of the utmost importance to these young children and that Mother

had been unsuccessful after two attempts at outpatient drug rehabilitation during the pendency
                                                4
of this case.       She explained that the alternative to termination—permanent managing

conservatorship—was not a good option because it would not provide the triplets with the

stability that they need because of the potential for Mother and Father to “come and go” in the

children’s lives.


Testimony of triplets’ maternal great-grandmother

                The triplets’ maternal great-grandmother testified that she was concerned about

Mother’s and Father’s drug use, an example being when she saw what she understood to be an

attempt by Mother and Father to cheat on Father’s drug test. She decided that because of their

continuing drug use, Mother and Father could no longer have visits with the triplets at the foster

parents’ (her grandson and his wife’s) house, where she spent much time caring for the triplets.


Testimony of Mother

                Mother testified that she did not know that Father had been using

methamphetamine except for a period “way back” before he was placed on probation in 2015.

She said that she last used methamphetamine in October 2018. She explained that she was

“clean” at the time of the triplets’ birth but that the meconium1 test—which was positive for

methamphetamine—“goes back 6 months.” She said she had used methamphetamine while

pregnant only until she found out she was pregnant, at around three or four months along.

However, she continued to use marijuana during her pregnancy because she informed her

doctor about her use but the doctor did not tell her to stop. She admitted that the use of

methamphetamine and marijuana during pregnancy endangered the well-being of the babies.


       1
          Meconium is “a dark greenish mass of desquamated cells, mucus, and bile that
accumulates in the bowel during fetal life and is discharged shortly after birth.” Webster’s Third
New Int’l Dictionary 1401 (2002).
                                                5
                 She admitted to having taken two drug tests during the pendency of this case that

were positive for methamphetamine. She testified that she went into rehab three times since this

case began, the last time being inpatient treatment about a year after the triplets were removed.

The Family Service Plan allowed her to have visits with her children, supervised by her

grandmother, as long as she kept having clean drug tests; those visits ceased when she started

using drugs again and refused to take oral-swab tests required by the Department. She testified

that she has been continuing to submit to drug tests on her own initiative and at her own expense

since the Department ceased requiring them of her and that the tests have shown she is “clean.”

The trial court admitted into evidence some of her recent clean tests.

                 Mother testified that she has another child, age nine, of whom she lost custody to

the child’s father when the boy was two years old. She sees the boy a couple of times a year and

does not pay any child support. She did not pay any child support for the triplets over the last

year, claiming that she did not know how to reach their foster parents and did not know that she

was obligated to provide for the children.

                 Mother admitted that she stopped going to court-ordered therapy because she

believed her therapist was too judgmental.


Testimony of Father

                 Father testified that he was currently serving a ten-year term of probation after he

received a 2015 deferred adjudication for possession of methamphetamine and assault on a

public servant. He explained that he stopped using methamphetamine when Mother found out

she was pregnant, around mid-2017. He testified that he last used methamphetamine several

months before February 13, 2018, when he tested positive for methamphetamine through a hair-

follicle test.   He explained that he stopped taking the oral-swab drug tests that the CPS
                                                  6
conservator asked him to take because he did not trust her; he understood that his visitation with

the triplets would cease due to his refusal to take the oral-swab tests. He said that he last paid

child support about a year prior to the trial and that while he had offered to pay the foster parents

child support, they refused to accept anything from him. He admitted that he had not tried to

send money or any other form of support to the foster parents through his attorney. He also

admitted that he had failed to pay child support regularly for his three children from a prior

relationship and that their mother and the attorney general had filed an enforcement action

against him to collect the arrears.


Testimony of foster parents

                The foster parents (Mother’s cousin and his wife) both testified that they loved

and cared for the triplets as if they were their own children, wanted to adopt them, had cared for

them in their home since they were two weeks old, and had been the only parents they knew.

They had three children of their own—ages eleven through fifteen—who were bonded with the

triplets and played constantly with them. The foster father testified that he planned to ensure the

triplets have a good future, and he said that the triplets call him “Father.” He explained that his

home had a “nanny cam” set up in the kitchen and that he had observed through its live feed that

during a visitation supervised by the children’s great-grandmother, Father had covered up the

camera’s lens. One time when Mother was having a supervised visitation, the camera showed

her “cussing out” the triplets’ great-grandmother, which prompted him to leave work early to

attend to the situation.




                                                 7
Documentary evidence

       Removal affidavit

               The trial court admitted the Department’s removal affidavit, in which the CPS

investigator averred that on September 8, 2017, the Department received a report alleging

neglectful supervision of the triplets based on Mother’s leaving the hospital against medical

advice after her accident and returning to the hospital in labor some unspecified time thereafter.

The report the Department received indicated that Mother “admitted to using methamphetamine

and marijuana during her pregnancy” and that she “was aware of her pregnancy at the time of the

use of the illegal substances.”

               The investigator averred that she interviewed Mother on September 11, 2017, at

the hospital. In the interview, Mother “stated she was not using marijuana and methamphetamine

often” but “confirmed frequent use of marijuana throughout her pregnancy.” Mother also “stated

she has used methamphetamine maybe about eight to ten times during her pregnancy . . .

[and that] she was aware at the time of use . . . that she was pregnant” and that she has used

Adderall she obtained from a friend during her pregnancy. Mother stated that her last use of

methamphetamine was about four months prior. Mother agreed to take a drug test on September

15, which was negative.

               The investigator averred that she spoke with a medical professional at the hospital

on September 15, who stated that the triplets were doing better than expected and were not

experiencing withdrawals. The professional stated that the infants’ meconium tested positive for

methamphetamine and marijuana.

               The investigator averred that she contacted Father, who told her that he did not

know that Mother had been using methamphetamine and marijuana during her pregnancy and

                                                8
that he wanted his children and had family that could help him care for them. He admitted that

he was on probation and takes random monthly drug tests. He agreed to take a drug test for the

Department, the results of which the Department received on September 24. The test was

positive for methamphetamine. On the same day, the Department removed the triplets from their

parents’ home and placed them in the care of their maternal great-grandmother.


       Other evidence

               Other documentary evidence included drug-test results for Mother and Father.

Mother’s tests were taken January 2 and 23, 2018, and were positive for methamphetamine.

Father’s test was taken on February 13, 2018, and was positive for methamphetamine. The trial

court admitted into evidence various temporary orders of the trial court, the Department’s Family

Service Plan (which was adopted by reference into a temporary order by the trial court), and the

orders of deferred adjudication and probation documents relating to Father’s criminal history.

The trial court also admitted documents offered by Mother and Father, including a record of

Father’s completion of a parenting class, Father’s income statement, Mother’s therapy notes and

treatment summary from rehab, and Mother’s recent self-initiated drug tests.


                                          DISCUSSION

Admission of hair-follicle test results

               In his first issue, Father complains that the trial court abused its discretion in

admitting the February 13, 2018 hair-follicle test results (PX-7) indicating that he tested positive

for methamphetamine because it did not meet the standard for expert witness testimony under

E.I. du Pont de Nemours & Co. v. Robinson.           See 923 S.W.2d 549, 556–57 (Tex. 1995)

(outlining factors trial court may consider in determining whether underlying theories and


                                                 9
techniques of proffered scientific evidence are sufficiently reliable). He specifically contends

that (a) neither the business-records affidavit accompanying the test results nor any other

evidence demonstrates that the “devices used for testing were properly supervised or maintained”

and (b) expert witness testimony was required “to explain the science behind how the rate of hair

growth in an individual differs on various parts of the body, and therefore, has varying ranges of

time that it can test.”

                The Department responds that Father did not preserve these arguments for review

because the objection he made at trial is not the same as the arguments he raises on appeal. See

Tex. R. App. P. 33.1(a) (requiring objection to state grounds for ruling sought from trial court

with sufficient specificity to make trial court aware of complaint unless specific grounds are

apparent from context); Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP,

520 S.W.3d 145, 159 (Tex. App.—Austin 2017, pet. denied). We agree with the Department.

                Father’s objection at trial to the admission of PX-7 follows:


        The—the exhibit that the State would like to offer requires a predicate that has not
        been laid. It’s hearsay as it stands and the business records affidavit does not cure
        the hearsay within the document. Specifically, what we’re objecting to is their --
        the contents of the document, claiming the document is something that’s created
        in the ordinary course of business with a business of scientific analysis that
        requires expert testimony. [Father] does not have the ability or the personal
        knowledge to lay that predicate. They have failed to lay that predicate. They’re
        asking the court hold them to the admissibility standard under 705(b) case law
        provided previously to the court under Robinson. We’re objecting to this evidence
        on all of those basis [sic].


This objection raised the issues of claimed hearsay in PX-7 and the Department’s failure to “lay

a predicate” for the drug test by expert testimony. While his objection referred to Rule of




                                                 10
Evidence 705(b), Father did not specifically request a hearing thereunder,2 and while he referred

to Robinson, he did not specify how the exhibit was purportedly deficient and inadmissible, or

what predicate an expert was required to lay. In contrast, on appeal Father specifically complains

that the exhibit contained no evidence demonstrating that the scientific testing methods used

“were properly supervised or maintained” and that an expert witness was required to explain how

the “underlying facts and data . . . relate to the relevant time period of the hair follicle.” We

conclude that his objection at trial does not comport with the issues he raises on appeal and that

he has, accordingly, waived the issues. See Elness Swenson Graham Architects, 520 S.W.3d at 159.

               However, even if Father’s objection had preserved his appellate issues, we would

conclude that the trial court properly admitted PX-7 as a business record. See Tex. R. Evid.

803(6); In re E.B., No. 11-19-00001-CV, 2019 WL 3955974, at *3 (Tex. App.—Eastland Aug. 22,

2019, no pet.) (mem. op.) (rejecting appellant’s argument that drug tests admitted as exhibits

under business-records exception to hearsay rule required live testimony of expert witness as to

authenticity of test, process, and equipment used); In re Z.N.M., No. 14-17-00650-CV, 2018 WL

358480, at *6 (Tex. App.—Houston [14th Dist.] Jan. 11, 2018, no pet.) (mem. op.) (rejecting

appellant’s contention that drug tests properly admitted under business-records exception needed

expert testimony to interpret them); In re A.T., No. 2-04-355-CV, 2006 WL 563565, at *4 (Tex.

App.—Fort Worth Mar. 9, 2006, pet. denied) (mem. op.) (rejecting appellant’s argument that

drug tests admitted as business records needed to show type of equipment used, qualifications of

person conducting test, and that tests were standard ones as long as tests demonstrated they


       2
         Rule 705(a) provides that an expert may state an opinion and give the reasons therefor
without first testifying to the underlying facts or data, unless the court orders otherwise. See
Tex. R. Evid. 705(a). Subsection (b) of that rule provides an adverse party the opportunity to
conduct a voir dire examination of the expert before he or she states an opinion or discloses the
underlying facts or data supporting it. See id. (b).
                                               11
had “sufficient indicia of trustworthiness or reliability”); cf. In re K.C.P., 142 S.W.3d 574, 580

(Tex. App.—Texarkana 2004, no pet.) (concluding that drug tests were improperly admitted as

exhibits under business-records exception because they contained “no information as to the

qualifications of the person or the equipment used, the method of administering the test, and

whether the test was a standard one for the particular substance,” indicating lack of

trustworthiness).

               Because the hair-follicle test was accompanied by an affidavit that complies with

Rule of Evidence 902(10)(B), the only question regarding its admissibility was whether the drug

test result showed sufficient indicia of trustworthiness to bring it within the business-records

exception to the hearsay rule. See Tex. R. Evid. 803(6); A.T., 2006 WL 563565, at *4. The

accompanying business-records affidavit avers that the drug test “utilize[ed] strict chain of

custody procedures” and “was performed utilizing GC/MS (gas chromatography/mass

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

officer.” It further avers that a record of the test result was kept in the regular course of business

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

that entity for an employee or representative with knowledge of the act, event, condition,

opinion, or diagnosis to record the information at or reasonably near the time it occurred. The

drug test itself was signed by the medical review officer, an MD, verifying that the test was

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

the lab that performed the test. Attached also to the business-records affidavit within PX-7 was

(a) the laboratory report indicating the quantitative results, identifying the lab as “DHHS

Certified,” and (b) the “Hair and/or Urine Custody and Control Form” that accompanied the

sample Father provided as it was transported from the testing facility to the laboratory. We

                                                 12
conclude that the trial court did not abuse its discretion in determining that the drug test and

accompanying affidavit showed sufficient indicia of trustworthiness to be properly admitted as a

business record. Accordingly, we overrule Father’s first issue.


Admission of the removal affidavit

                 In her second issue, Mother complains that the trial court abused its discretion in

admitting the affidavit of removal offered by the Department because it contained hearsay. At

trial, Mother objected to three specific portions of the affidavit: (1) the first paragraph of page

two, (2) the third paragraph of page three, and (3) the last sentence of page five.3 See In re L.M.,

572 S.W.3d 823, 832 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (noting that objection to

hearsay within document must identify which specific parts contain hearsay to preserve error

as to those parts). The State responds that the challenged statements in the affidavit were

admissible under either the business-records or public-records exceptions to the hearsay rule.


       3
           Those portions of the affidavit averred:

       (1) On September 8, 2017, the Texas Department of Family and Protective Services
           received a report alleging Neglectful Supervision of [the triplets] by their mother[.]
           The report stated [that she] was in a car accident and was brought to the hospital for
           the incident. [The affidavit continues with several more sentences indicating what
           “the report stated.”]

       (2) On September 15, 2017 [the] Investigator spoke with a Medical professional[] who
           stated that the infants are doing better than expected considering the circumstances.
           The medical professional stated the children are not experiencing any withdrawals.
           The medical professional stated the triplet[s’] meconium was positive for
           methamphetamine and marijuana. [The affidavit continues with several more sentences
           indicating what “the medical professional” stated.]

       (3) It is the Department[’]s recommendation that the children remain in care of [the
           great-grandmother] until [Mother] can show she is not engaging in illegal drug
           abuse, and can provide a stable living environment, gets proper help from a drug
           rehabilitation program, and receives parenting classes to demonstrate a capability of
           providing care for the children.
                                                  13
See Tex. R. Evid. 803(6), (8). Mother counters that the first exception does not apply because

the affidavit was prepared specifically for litigation and therefore does not meet the

trustworthiness requirement of Rule 803(6). She also contends that neither exception applies

because the affidavit contains hearsay within hearsay. See id. R. 805.

               When a trial court admits evidence that is hearsay and admissible for a limited

purpose, a party may claim error only if the party requests the court to instruct the jury

accordingly. See id. R. 105(b)(1). While Mother requested that the trial court admit only a

redacted version of the affidavit—removing the challenged hearsay statements—she did not

request an instruction that the jury consider the affidavit for the limited purpose of proving that

the children were removed for abuse or neglect under Chapter 161, and not for the truth of the

matters asserted. See id. R. 801(d)(2) (defining hearsay as statement offered to prove truth of

matter asserted); see also Tex. Fam. Code § 161.001(b)(1)(O). Because the challenged out-of-

court statements were admissible for another purpose—to prove that the children were removed

for abuse or neglect—the trial court did not abuse its discretion by allowing them into evidence

for that purpose. Furthermore, absent a limiting instruction, the claim of error in the admission

of the hearsay evidence is not preserved for our review. See Tex. R. Evid. 105(b)(1); cf.

Ledesma v. State, No. 01-15-00534-CR, 2016 WL 2930438, at *3 (Tex. App.—Houston [1st Dist.]

May 17, 2016, no pet.) (mem. op.); Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App.

2007) (“Once evidence has been admitted without a limiting instruction, it is part of the general

evidence and may be used for all purposes.”). We overrule Mother’s second issue.


Denial of motion for mistrial

               Both Mother and Father contend that the trial court abused its discretion in

denying their motions for mistrial, which they requested after a witness for the Department
                                                14
testified allegedly in violation of a motion in limine. The witness was the triplets’ maternal

great-grandmother, with whom the triplets had lived after the Department removed them from

their parents’ care. The trial court had previously granted in part the parents’ motion in limine as

to the associate judge’s termination findings, noting: “ct grants w/ regard to [associate judge’s]

findings re termination.”

               On direct examination, the Department pursued the following line of questioning

with the great-grandmother:


       Department: Now, when they were—initially they were placed with you, correct?

       Witness: Right, for the first year.

       Department: And while they were placed with you, do you know a gentleman
       and a lady by the name of [the foster mother and foster father]?

       Witness: They’re the ones—they’re my grandson and my granddaughter that I
       moved in with.

       Department: Okay. Now, so initially they were—you had the triplets, but they
       were living with you.

       Witness: I was living with them in their house because my house has got four
       dogs in it and I didn’t want to take them there.

       Department: Okay. So you were technically in charge, but they were living—

       Witness: I was in charge, but I was living with my grandson. They built a room
       onto the—their house for me and the babies.

       Department: And at some point did it transition to they were officially in charge
       and you were still there?

       Witness: Yes. We went to several, I guess, hearings through court and their
       rights to the babies were terminated, and then that—at that point they told me I
       was too old to—to adopt the babies and I would have to find somebody else that
       would adopt them. So [the foster mother and foster father] had fallen in love with
       them—

       [Counsel for Mother asks to approach the bench.]


                                                15
               Mother and Father contend that the above testimony indicating that their rights to

the children had previously been “terminated” constituted an “impermissible comment on the

weight of the evidence by a judge who had presided over the same cause.” See Tex. R. Evid.

605; In re T.T., 39 S.W.3d 355, 358–59 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (holding

that trial court erred in admitting into evidence temporary order rendered by same judge

presiding over final termination proceedings where temporary order made same type of findings

that jury would be asked to make because order functioned as improper comment by judge on

weight of evidence). We disagree.

               Unlike in T.T., here the associate judge’s fact findings and termination order were

not admitted into evidence; rather, a third-party witness mentioned that Mother’s and Father’s

rights “were terminated,” without elaboration and in the context of explaining the triplets’ living

situation. The facts here, therefore, are distinguishable from those in T.T., wherein the appellate

court held that the admission of a temporary order by the judge who was presiding over the final

termination hearing—which order included specific findings that the parents had endangered

their children—was both hearsay and an impermissible comment on the weight of the evidence

by the judge. See 39 S.W.3d at 358–59. We believe that any prejudicial effect that may have

resulted from the great-grandmother’s testimony about the parents’ rights having been previously

“terminated” could have been cured by an instruction to disregard from the trial court. Mother

and Father, however, refused an instruction and instead sought a mistrial. When an instruction to

disregard could have cured an objectionable occurrence, the party must request such instruction

or will have forfeited appellate review of the issue. See In re B.W., 99 S.W.3d 757, 760 (Tex.

App.—Houston [1st Dist.] 2003, no pet.); S.A., 2018 WL 1096012, at *4.




                                                16
               A mistrial is an appropriate remedy only in “extreme circumstances” for “a

narrow class of highly prejudicial and incurable errors.” Archie v. State, 221 S.W.3d 695, 699

(Tex. Crim. App. 2007). The remedy “halts trial proceedings when error is so prejudicial

that expenditure of further time and expense would be wasteful and futile.” Ocon v. State,

284 S.W.3d 880, 884 (Tex. Crim. App. 2009). On this record, we cannot conclude that the great-

grandmother’s testimony was so prejudicial to Mother and Father that an instruction to disregard

could not have cured it, and Mother’s and Father’s respective counsels did not seek an

instruction to disregard. The trial court’s denial of Mother’s and Father’s motions for mistrial

was well within the “zone of reasonable disagreement,” see S.A., 2018 WL 1096012, at *4, and

the trial court therefore did not abuse its discretion in denying the motions for mistrial.

Accordingly, we overrule Mother’s and Father’s respective first issues.


Termination of Mother’s rights

               Mother contends that the evidence is legally and factually insufficient to support

the jury’s findings that (1) she engaged in conduct or knowingly placed the children with persons

who engaged in conduct that endangered the children’s physical or emotional well-being, (2) she

failed to comply with the provisions of a court order that specifically established the actions

necessary for her to obtain the return of the children who have been in the permanent or

temporary managing conservatorship of the Department for at least nine months as a result of

their removal from her by the Department for abuse or neglect, and (3) termination was in the

children’s best interests. See Tex. Fam. Code § 161.001(b)(1)(E), (O), (2).




                                               17
        Statutory-predicate finding

                 We first consider whether the evidence was legally and factually sufficient to

support the jury’s finding that Mother engaged in conduct that endangered the triplets’ physical

or emotional well-being.      See id. § 161.001(b)(1)(E).    Evidence showed that Mother used

methamphetamine and marijuana while she was pregnant with the triplets, even after she knew

that she was pregnant. Evidence showed that she continued to use methamphetamine after her

children had been removed, despite the requirement in the Family Service Plan that she abstain

from the use of illegal drugs and her knowledge that her visitation with the triplets would be

thereby jeopardized and that her visitations would cease upon her refusals to submit to oral-swab

testing. Mother had been using methamphetamine since she was 21 years old and was 28 at the

time of trial.

                 A mother’s use of illegal drugs during pregnancy is an act that jeopardizes a

child’s well-being because it exposes the child to the possibility of being born with adverse

medical conditions, even if there is no actual injury that results. See In re M.D.V., No. 14-04-

00463-CV, 2005 WL 2787006, at *3 (Tex. App.—Houston [14th Dist.] Oct. 27, 2005, no pet.)

(mem. op.). Furthermore, a parent’s continued use of illegal drugs after her children are removed

places her visitations and, thus, relationship with her children at risk. See In re J.S., 584 S.W.3d

622, 635 (Tex. App.—Houston [1st Dist.] 2019, no pet.); In re S.M.L.D., 150 S.W.3d 754, 757–

58 (Tex. App.—Amarillo 2004, no pet.).

                 Considering the evidence in the light most favorable to the jury’s subsection (E)

finding, we conclude that the jury could reasonably have formed a firm belief or conviction that

Mother engaged in conduct that endangered the triplets’ physical or emotional well-being. See

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Furthermore, there was no significant disputed

                                                18
evidence that would render such finding unreasonable. See id. Therefore, the evidence was

legally and factually sufficient to support the jury’s subsection (E) finding. Because only one

predicate finding is required to support termination, see In re A.V., 113 S.W.3d 355, 362 (Tex.

2003), we need not review the jury’s subsection (O) finding.


       Best-interest finding

               A factfinder’s best-interest determination is reviewed in light of the non-

exhaustive list of considerations set out in Holley v. Adams: the child’s wishes, if the child is of

an appropriate age to express such wishes; the child’s present and future emotional and physical

needs; present and future emotional and physical danger to the child; the parenting abilities of

the individuals seeking custody; programs available to assist those people to promote the child’s

best interest; plans for the child by the people or agency seeking custody; the stability of the

home or proposed placement; the parent’s acts or omissions that may indicate that the parent-

child relationship is improper; and any excuse for the parent’s acts or omissions. 544 S.W.2d

367, 371–72 (Tex. 1976).

               The Department is not required to prove all of the Holley factors “as a condition

precedent to parental termination,” and a lack of evidence of some of the factors does not

“preclude a factfinder from reasonably forming a strong conviction or belief that termination is

in the child’s best interest, particularly if the evidence were undisputed that the parental

relationship endangered the safety of the child.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

Evidence presented to satisfy a predicate statutory-ground finding may also be probative of the

child’s best interest. Id. at 28. We summarize the evidence bearing on only those Holley factors

on which there is relevant evidence in the record.



                                                19
                “The need for permanence is the paramount consideration when determining a

child’s present and future physical and emotional needs.” M.R. v. Texas Dep’t of Family &

Protective Servs., No. 03-17-00715-CV, 2018 WL 1023899, at *3 (Tex. App.—Austin Feb. 23,

2018, no pet.) (mem. op.). While there was no evidence about any physical and emotional needs

unique to the triplets, the guardian ad litem testified that permanence and stability were

especially important to them, considering the possibility of Mother’s and Father’s going in and

out of their lives.

                The jury heard evidence that Mother’s illegal drug use occurred while she knew

she was pregnant with the triplets and that she knew such behavior was endangering to them.

Mother continued to use illegal drugs during the pendency of this case, and although some

evidence indicated that she had abstained from drugs in the months leading up to trial, the jury

could have reasonably concluded that her long history of drug use was likely to pose future

physical and emotional danger to the children. Mother did not complete her court-ordered

therapy, nor did she submit to all of the Department’s requested drug tests.

                The foster parents had experience raising three children of their own and were

providing a loving, safe home for the triplets. They had plans to raise the triplets as their own

upon adoption and to ensure that they had a good future. They had provided the triplets with a

stable home since they were two weeks old. Mother did not identify her plans for the children or

explain how she would be able to provide them stability and hoped to remain in a relationship

with Father, despite their respective histories of drug use.

                Considering the evidence in the light most favorable to the jury’s best-interest

finding, we conclude that the jury could reasonably have formed a firm belief or conviction that

termination of Mother’s parental rights was in the triplets’ best interest. See J.F.C., 96 S.W.3d

                                                 20
at 266. Furthermore, there was no significant disputed evidence that would render such finding

unreasonable. See id. Therefore, the evidence was legally and factually sufficient to support the

jury’s best-interest finding, and we accordingly overrule Mother’s third and final issue.


Termination of Father’s rights

               Father contends that the evidence is legally and factually insufficient to support

termination of his parental rights on the basis of the trial court’s findings that (1) he engaged in

conduct or knowingly placed the children with persons who engaged in conduct that endangers

the physical or emotional well-being of the children, (2) he failed to comply with the provisions

of a court order that specifically established the actions necessary for him to obtain the return of

the children who have been in the permanent or temporary managing conservatorship of the

Department for at least nine months as a result of the children’s removal from him by the

Department for abuse or neglect, and (3) termination of his parental rights was in the best interest

of the children. See Tex. Fam. Code § 161.001(b)(1)(E), (O), (2).


       Statutory-predicate finding

               We first consider whether the jury’s subsection (E) finding was supported by

legally and factually sufficient evidence. See id. § 161.001(b)(1)(E). As noted above with

respect to Mother, a parent’s drug use that continues after a child is removed from the parent’s

care, in the face of periodic drug tests that place the parent’s relationship with his child in

jeopardy, is evidence of an endangering course of conduct. J.S., 584 S.W.3d at 635; S.M.L.D.,

150 S.W.3d at 758. A parent’s criminal history is also a factor that may be considered when

determining if the parent has engaged in an endangering course of conduct, because routinely




                                                21
subjecting a child to the probability that the child will be left alone because his parent is in jail

endangers the child’s physical and emotional well-being. J.S., 584 S.W.3d at 635.

               Father was in the first half of a ten-year term of probation for a drug and

assaultive offense at the time of trial and when he used methamphetamine and refused to take

drug tests. Evidence supported an inference that he attempted to cheat on drug tests. This

evidence shows that Father had a continuing problem with substance abuse that persisted

throughout the termination proceedings and that his drug use put him at a high risk of being

incarcerated. Texas courts have repeatedly held that a parent’s illegal drug usage, even after

removal of the child from the home and during the pendency of termination proceedings, may

establish an endangering course of conduct because it creates the possibility that the parent will

be impaired or imprisoned and thus incapable of parenting. Id. at 636. Additionally, Father

knowingly relinquished his limited visitation with the triplets by refusing to take oral-swab drug

tests, which put his relationship with the triplets—during the very time when that relationship

was in jeopardy by virtue of these proceedings—at further risk. See S.M.L.D., 150 S.W.3d

at 757–58.

               Considering the evidence in the light most favorable to the jury’s subsection (E)

finding, we conclude that the jury could reasonably have formed a firm belief or conviction that

Father engaged in conduct that endangered the triplets’ physical or emotional well-being. See

J.F.C., 96 S.W.3d at 266. Furthermore, there was no significant disputed evidence that would

render such finding unreasonable. See id. Therefore, the evidence was legally and factually

sufficient to support the jury’s subsection (E) finding.      Because the evidence supports the

subsection (E) finding, we need not review the jury’s subsection (O) finding. See A.V., 113 S.W.3d

at 362.

                                                 22
       Best-interest finding

               Father also challenges the legal and factual sufficiency of the jury’s best-interest

finding. Most of the evidence summarized above in our best-interest analysis as it pertains to

termination of Mother’s rights also pertains to termination of Father’s rights, and he similarly did

not present evidence of his plans for the children or of several other of the Holley factors.

Furthermore, the evidence relating to his endangering course of conduct weighs heavily in favor

of termination. Our review of the record demonstrates that the evidence is legally and factually

sufficient to support the jury’s best-interest finding. Accordingly, we overrule Father’s third issue.


                                          CONCLUSION

               Having overruled each of Mother’s and Father’s respective issues, we affirm the

trial court’s final decree terminating the parental rights of Mother and Father to their three

children.



                                               __________________________________________
                                               Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed

Filed: January 9, 2020




                                                  23
