Opinion filed November 3, 2022

In The

Eleventh Court of Appeals __________

No. 11-22-00122-CV

__________

IN THE INTEREST OF J.H. AND K.H., CHILDREN

On Appeal from the 326th District Court

Taylor County, Texas

Trial Court Cause No. 10045-CX

M E M O R A N D U M O P I N I O N

This is an appeal from an order entered by the trial court terminating the 

parental rights of the mother and the father to their children, J.H and K.H. See TEX.

FAM. CODE ANN. § 161.001 (West 2022). The mother (Appellant) appeals in four 

issues: (1) asserting that the trial court erred in admitting evidence of drug test 

results, (2) claiming that without the drug test results the evidence was insufficient 

to show she endangered the children, (3) challenging the sufficiency of the evidence 

to support the termination of her parental rights, and (4) alleging that termination 

was not in the best interest of the children. We affirm the trial court’s order. 
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I. Termination Findings and Standards

The termination of parental rights must be supported by clear and convincing 

evidence. FAM. §§ 161.001(b), 161.206(a), (a-1). To terminate one’s parental rights 

under Section 161.001, it must be shown by clear and convincing evidence that the 

parent has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that 

termination is in the best interest of the child. FAM. § 161.001(b)(1). In this case, 

the trial court found that Appellant had committed three of the acts listed in 

Section 161.001(b)(1)—those found in subsections (D), (E), and (O). Specifically, 

the trial court found that Appellant had knowingly placed or knowingly allowed the 

children to remain in conditions or surroundings that endangered the children’s 

physical or emotional well-being. See id. § 161.001(b)(1)(D). The trial court also 

found that Appellant had engaged in conduct or knowingly placed the children with 

persons who engaged in conduct that endangered the children’s physical or 

emotional well-being. See id. § 161.001(b)(1)(E). Finally, the trial court found that 

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

established the actions that Appellant needed to take to obtain the return of her 

children. See id. § 161.001(b)(1)(O). Ultimately, the trial court found that 

termination of Appellant’s parental rights would be in the best interest of the 

children. See id. § 161.001(b)(2).

To determine if the evidence is legally sufficient in a parental termination 

case, we review all of the evidence in the light most favorable to the finding and 

determine whether a rational trier of fact could have formed a firm belief or 

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

To determine if the evidence is factually sufficient, we give due deference to the 

finding and determine whether, on the entire record, a factfinder could reasonably 

form a firm belief or conviction about the truth of the allegations against the parent. 

In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We note that the trial court is the sole 
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arbiter of the credibility and demeanor of witnesses. In re A.B., 437 S.W.3d 498, 

503 (Tex. 2014) (citing In re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).

With respect to the best interest of a child, no unique set of factors need be 

proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied). 

But courts may use the non-exhaustive Holley factors to shape their analysis. 

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not 

limited to, (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 parental abilities of the individuals seeking custody, (5) the 

programs available to assist these individuals to promote the best interest of the 

child, (6) the plans for the child by these individuals or by the agency seeking 

custody, (7) the stability of the home or proposed placement, (8) the acts or 

omissions of the parent that 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. Id.

Additionally, evidence that proves one or more statutory grounds for termination 

may also constitute evidence illustrating that termination is in the child’s best 

interest. C.J.O., 325 S.W.3d at 266.

II. Procedural and Factual Background

At issue in this appeal are the parental rights of Appellant to her children, J.H. 

and K.H.—who at the time of trial were ten years old and seven years old, 

respectively. The Department of Family and Protective Services became involved 

with J.H. in June 2020 due to his behavioral issues. Appellant was unable to control 

J.H., and she asked for help from the Department because she was struggling to get 

the resources she needed to support J.H. during the pandemic. J.H. was ultimately

removed from Appellant’s home and placed in a residential treatment center (RTC). 

The trial court ordered Appellant to comply with the requirements of her family 
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service plan. She was generally compliant except for her use of marihuana as 

demonstrated by positive drug test results. 

Following an allegation that drugs were being used in Appellant’s home, the 

Department conducted drug testing on K.H. After K.H. tested positive for 

marihuana two separate times (several months apart), the Department removed K.H. 

from Appellant’s home and placed her in foster care. Appellant was again courtordered to comply with the provisions of a family service plan, but the Department 

case manager indicated that this time Appellant was not as successful. The case 

manager testified that several of Appellant’s drug tests were positive, that Appellant 

failed to provide a list of medical prescriptions, and that she did not attend all 

scheduled appointments, did not complete a substance assessment, did not complete 

weekly Narcotics Anonymous (NA) classes, did not comply with refraining from 

bleaching or coloring her hair, did not maintain employment, and did not notify the 

case manager of changes in a timely manner. Appellant admitted to changing 

employers but denied that she failed to notify the case manager about these changes. 

Appellant also explained that because she has no prescription for her back pain, she

self-medicates using CBD—either by smoking it or eating “gummies.”

The Department approved a monitored return of the children to Appellant in 

2021. J.H. returned in June 2021, and K.H. returned in August 2021. The case 

manager testified that Appellant was compliant with her services in both June and 

August 2021. However, the monitored return ended in October 2021 when J.H., 

K.H., and Appellant all tested positive for marihuana. After the monitored return 

ended, J.H. returned to RTC and K.H. returned to foster care.

The case manager for the Department testified that during the monitored 

return, J.H. was again having behavioral issues. He had quit taking the medication 

prescribed to him. Appellant claimed that this was because J.H. refused the 

medication, not because she neglected to give it to him. However, after the 
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monitored return, J.H.’s behaviors improved upon his return to RTC, and he began 

taking his medication consistently. 

Appellant maintained at trial that her children tested positive due to “passive 

exposure.” According to the case manager, Appellant continued to test positive for

marihuana and did not utilize many of the services offered to her. Appellant testified 

that she last smoked marihuana about two or three months before trial. She also 

admitted at trial that her nephew lived with her and that he smokes marihuana. 

The case manager testified that both children were doing well in school, and 

the court-appointed special advocate (CASA) for both children testified that they 

were doing very well in their respective placements. Appellant continued to 

participate in in-person visits with both children, only missing when she was sick or

traveling. Appellant testified that she and the children have fun during the visits and 

that the children miss her when she is not with them. When J.H. was informed that 

Appellant’s parental rights could be terminated, J.H. was extremely upset and hurt

by this. Appellant testified that K.H. likes her foster home but also wants to come 

home. 

The Department requested that the trial court terminate Appellant’s parental 

rights. Both the CASA representative and the case manager for the Department 

testified that the termination of Appellant’s parental rights would be in the best 

interest of J.H. and K.H. At the time of trial, the Department’s plan for J.H. was for 

him to remain in RTC and, once released, to be placed in foster care. The 

Department’s plan for K.H. at the time of trial was for her to be adopted by her foster 

parents.

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We note that evidence presented at a hearing on Appellant’s motion for new trial revealed that the 

Department’s plan for the children changed after the termination hearing and that the subsequent plan was 

for the children to be adopted by or placed permanently with Appellant’s sister. 
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III. Analysis

A. Evidentiary Ruling

In Appellant’s first issue, she contends that the trial court erred when it 

admitted into evidence the drug test results of J.H., K.H., and Appellant at trial. The 

drug test results were admitted into evidence as exhibits under the business records 

exception to the hearsay rule. See TEX.R.EVID. 803(6), 902(10). Appellant objected 

to the admission of these exhibits, arguing that they contain information outside the 

scope of the hearsay exception for business record affidavits. The trial court 

overruled Appellant’s objections to the exhibits and admitted them into evidence.

Attached to each of the complained-of exhibits in this case was an affidavit 

by the custodian of records of Texas Alcohol and Drug Testing Service. The 

affidavits pertained to hair, nail, urine, and oral fluid testing. The affidavits indicate 

that “strict chain of custody procedures” were utilized and that the testing was 

performed by a certified scientist utilizing GC/MS (gas chromatography/mass 

spectrometry) instruments and reviewed by a licensed medical review officer. The 

affidavits generally track the language of Rule 803(6), which sets out the 

requirements for the hearsay exception for records of regularly conducted business 

activity, and Rule 902(10), which sets out the requirements for authentication 

purposes of an affidavit that accompanies business records. See TEX. R. EVID. 

803(6), 902(10). The affidavits attached to the complained-of exhibits in this case 

provide information regarding the chain of custody, the testing procedures, and the 

qualifications of the analysts. The pages of the exhibits that show the “Test Results” 

were signed by the medical doctor that was the certified medical review officer for 

the tests. 

The exhibits constitute an exception to the hearsay rule, and nothing in the 

record indicates that they lack trustworthiness. See TEX. R. EVID. 803(6). We hold

that the trial court did not abuse its discretion in admitting the exhibits over 
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Appellant’s hearsay objections. See F.C. v. Tex. Dep’t of Fam. & Protective Servs., 

No. 03-19-00625-CV, 2020 WL 101998, at *5–6 (Tex. App.—Austin Jan. 9, 2020, 

no pet.) (mem. op.); In re E.B., No. 11-19-00001-CV, 2019 WL 3955974, at *3 (Tex. 

App.—Eastland Aug. 22, 2019, no pet.) (mem. op.); 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.); 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.). 

Moreover, even if Appellant is correct in her contention that the trial court 

abused its discretion in admitting the exhibits, we have held—as did the courts of 

appeals in A.D.H.–G and K.C.P.—that the error, if any, in the admission of the drugtest results was harmless. See In re E.B., No. 11-19-00001-CV, 2019 WL 3955974, 

at *4 (Tex. App.—Eastland Aug. 22, 2019, no pet.) (mem. op.); In re A.D.H.–G., 

No. 12-16-00001-CV, 2016 WL 3182610, at *6 (Tex. App.—Tyler June 8, 2016, no 

pet.) (mem. op.); In re K.C.P., 142 S.W.3d 574, 580–81 (Tex. App.—Texarkana 

2004, no pet.); see also TEX. R. APP. P. 44.1(a)(1) (judgment may not be reversed 

unless the error probably caused the rendition of an improper judgment). In this 

case, other evidence at trial indicated that Appellant—during a monitored return with 

the children—was self-medicating for pain with CBD by eating gummies or 

smoking and that she would routinely allow the children to play outside where 

marihuana was commonly being used. Appellant also admitted at trial that she had 

smoked marihuana as recently as “two or three months” before the trial. Evidence 

that Appellant’s children tested positive for marihuana was admitted without 

objection during the trial—by Appellant during her own testimony. Appellant 

confirmed that her nephew had been watching her children while she was at work

and that he had also been “using.” We note that, to support a finding that Appellant 

endangered J.H. and K.H., Appellant’s offending conduct did not have to be directed 

at them, nor did they actually have to suffer an injury. See In re J.O.A., 283 S.W.3d 
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336, 345 (Tex. 2009). Thus, we conclude that any error in the admission of the 

exhibits containing J.H.’s, K.H.’s, and Appellant’s drug-test results was harmless. 

We overrule Appellant’s first issue.

B. Endangering Conduct

In Appellant’s second issue, she challenges the findings made by the trial 

court under Section 161.001(b)(1)(D) and (E). We must address a parent’s challenge 

to a trial court’s findings under subsection (D) or (E) because of the potential 

consequences of these findings to the parent’s rights to a different child. See In re 

N.G., 577 S.W.3d 230, 234–35 (Tex. 2019) (addressing due process and due course 

of law with respect to appellate review of grounds (D) and (E) and holding that an 

appellate court must provide a detailed analysis if affirming the termination on either 

of these grounds).

Under subsection (D), termination is permitted when the parent has 

“knowingly placed or knowingly allowed the child to remain in conditions or 

surroundings which endanger the physical or emotional well-being of the child.” 

FAM. § 161.001(b)(1)(D). The relevant time frame for evaluating this ground is 

before the removal of the child or during a monitored return, as the endangering

conditions must be experienced by the child, not anticipated. See In re J.W., 645 

S.W.3d 726, 749 (Tex. 2022). “The suitability of a child’s living conditions and the 

conduct of parents or others in the home are relevant to a Subsection (D) inquiry.” 

Id. (citing In re R.S.-T., 522 S.W.3d 92, 108–09 (Tex. App.—San Antonio 2017, no 

pet.)).

Under subsection (E), the relevant inquiry is whether evidence exists that the 

endangerment of the child’s well-being was the direct result of the parent’s conduct, 

including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 34 (Tex. 

App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must 

be based on more than a single act or omission; a voluntary, deliberate, and 
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conscious course of conduct by the parent is required. In re D.T., 34 S.W.3d 625, 

634 (Tex. App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 

(Tex. App.—Eastland 1999, no pet.). The offending conduct need not be directed at 

the child, nor does the child actually have to suffer an injury. J.O.A., 283 S.W.3d at

345. With respect to the sufficiency of the evidence to support a finding under 

subsection (E), “endangering conduct is not limited to actions directed towards the 

child.” Id. (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 

1987)).

The record shows that Appellant’s children were endangered as a direct result 

of her conduct and because of their environment. Both children tested positive for 

marihuana in October 2021 while under Appellant’s care during a monitored return.

This was the third time K.H. tested positive for marihuana, and the first time J.H. 

tested positive. K.H. had previously tested positive while living with Appellant in 

August 2020 and March 2021. Appellant continued to allow the children to play 

outside even though she smelled marihuana in the area and saw others smoking. 

“Every park” has people smoking there “every time” they go, Appellant testified. 

When asked why she did not leave these areas when she knew people were smoking 

marihuana, Appellant responded that the children wanted to play at the park. 

Additionally, Appellant allowed her nephew to care for the children while she 

worked. She later permitted him to live with her, despite knowing that he uses

marihuana. Nothing in the record suggests that either child had ever been prescribed 

low-THC cannabis. See FAM. § 161.001(c)(4). 

Based on the evidence presented, the trial court could have reasonably found 

by clear and convincing evidence that Appellant had allowed the children to remain 

in conditions or surroundings that endangered their physical or emotional well-being 

and that she had engaged in a course of conduct that endangered J.H. and K.H. See

J.O.A., 283 S.W.3d at 345. The evidence is legally and factually sufficient to uphold 
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the trial court’s findings under subsections (D) and (E). Accordingly, we overrule 

Appellant’s second issue. Because only one statutory ground is necessary to support 

termination and because we have upheld the trial court’s finding as to subsections 

(D) and (E), we need not address Appellant’s third issue in which she challenges the 

finding as to subsection (O). See FAM. § 161.001(b)(1); N.G., 577 S.W.3d at 234–

35; see also TEX. R. APP. P. 47.1.

C. Best Interest

In Appellant’s fourth issue, she challenges the sufficiency of the evidence to 

support the trial court’s finding that termination of parental rights would be in the 

best interest of J.H. and K.H. 

The evidence referenced shows that, despite the Department’s previous efforts 

to assist Appellant to appropriately parent the children, she failed to do so. Clear 

and convincing evidence demonstrated that placing them in a home with Appellant

would create a risk of danger to J.H. and K.H. Even while this case was pending 

below, Appellant continued to use marihuana and to place her children in 

environments where marihuana was present, causing the children to test positive.

The permanency case manager and the CASA representative testified that it would 

be in the children’s best interest to terminate the parental rights of Appellant. 

The trial court, as the trier of fact, is the sole judge of the witnesses’ 

credibility. A.B., 437 S.W.3d at 503. In light of the deference to be given the trial 

court in this regard, the evidence presented at trial, and the Holley factors, we 

conclude that the trial court could reasonably have formed a firm belief or conviction 

that termination of Appellant’s parental rights would be in the best interest of J.H. 

and K.H. See Holley, 544 S.W.2d at 371–72. Upon considering the record as it 

relates to the emotional and physical needs of the children now and in the future, the 

emotional and physical danger to the children now and in the future, the desires of 

the children, the plans for the children by the Department, and Appellant’s continued 
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exposure of her children to marihuana, we hold that the evidence is legally and 

factually sufficient to support the trial court’s finding that termination of Appellant’s

parental rights is in the best interest of J.H. and K.H. See id. We defer to the trial 

court’s findings as to the children’s best interest, see C.H., 89 S.W.3d at 27, and we 

cannot hold in this case that the trial court’s findings as to best interest are not 

supported by clear and convincing evidence. Accordingly, we overrule Appellant’s 

fourth issue.

IV. This Court’s Ruling

We affirm the order of the trial court. 

W. BRUCE WILLIAMS

JUSTICE

November 3, 2022

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.