In re S.S.
| Decision Date | 30 November 2012 |
| Docket Number | NO. 12-12-00119-CV,12-12-00119-CV |
| Parties | IN THE INTEREST OF S.S., K.S., AND R.W., JR., CHILDREN |
| Court | Texas Court of Appeals |
APPEAL FROM THE 173RD
JUDICIAL DISTRICT COURT
HENDERSON COUNTY, TEXAS
S.S. and S.S.1,1 K.S., and R.W., Jr. (the children) appeal the termination of S.S.'s parental rights. On appeal, S.S. presents three issues, and the children present four issues. We affirm.
S.S. is the mother of three children, S.S.1, born October 10, 2006, K.S., born January 1, 2008, and R.W., Jr., born February 7, 2009. L.W. is the father of S.S.1, M.C.M. is the father of K.S., and R.L.W. is the father of R.W., Jr.2 None of the fathers are a party to this appeal. On June 18, 2009, the Department of Family and Protective Services (the Department) filed an original petition for protection of the children, for conservatorship, and for termination of S.S.'s parental rights. The Department was appointed the children's temporary managing conservator, and S.S. was appointed their temporary possessory conservator.
After a jury trial, the jury found, by clear and convincing evidence, that S.S. had engaged in one or more of the acts or omissions necessary to support termination of her parental rights,and that termination of the parent-child relationship between S.S. and the children was in the children's best interest. Further, the jury found that the Department should be appointed managing conservator of the children. Based on these findings, the trial court ordered that the parent-child relationship between S.S. and the children be terminated. Moreover, the trial court ordered that the Department be appointed permanent managing conservator of the children. S.S. filed a motion for new trial, which was denied. This appeal followed.
In the children's first and second issues, they argue that the trial court erred by improperly admitting hearsay evidence, business records affidavits, and scientific, technical, and specialized knowledge without expert testimony concerning drug test results in violation of the Texas Rules of Evidence. Further, the children contend that the resulting harm from improperly admitting this testimony and evidence was substantial and probably caused the rendition of an improper judgment.
We review a trial court's evidentiary rulings for abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if it acts without reference to any guiding rules or principles or if its actions are arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp., 972 S.W.2d at 43.
"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). The proponent of hearsay has the burden of showing that the testimony fits within an exception to the general rule prohibiting the admission of hearsay evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004). However, the following exception applies for business records:
A . . . record . . . made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or byaffidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
TEX. R. EVID. 803(6); Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240 (Tex. App.— Houston [1st Dist.] 2010, no pet.). The predicate for admission of the business records may be established "by [an] affidavit that complies with Rule 902(10)." TEX. R. EVID. 803(6).
Rule 902(10) provides that business records "shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6)." TEX. R. EVID. 902(10)(a). The predicate witness does not have to be the record's creator or have personal knowledge of the contents of the record. Brooks v. State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995, pet. ref'd). The witness need only have personal knowledge of the manner in which the records were prepared. Id. Rule 902(10) also provides a form for the affidavit and states that the affidavit "shall be sufficient if it follows this form though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice . . . ." TEX. R. EVID. 902(10)(b).
On the first day of trial, but before voir dire, the children's counsel objected to the admission of the results of hair follicle drug testing through the introduction of business records, asserting that the Department had not designated any experts who could satisfy the standards set forth in Texas Rule of Evidence 702. Further, counsel objected that the Department intended to rely upon these business records to show, by clear and convincing evidence, that S.S. and R.L.W. engaged in one or more of the acts or omissions necessary to support termination of their parental rights, more specifically, the conduct described in subsections 161.001(1)(D) and (E) of the Texas Family Code.3 S.S.'s counsel joined in the children's objections. The trial court overruled the objections "to the extent of the results themselves of drug tests contained in business records." Before trial, and before the testimony began, counsel for the children and for S.S. renewed their objections. They also requested a running objection regarding both businessrecords affidavits. The trial court denied their objections, but granted them a running objection to the affidavits.
At trial, Angie Hope, a collector with Drug Test Services of East Texas, testified that she collects urine, hair, and nail specimens for drug testing. She stated that she collected hair samples from the children on three separate occasions, from S.S. on approximately ten occasions, and from R.L.W. on two occasions. Hope testified that when she collects a hair sample for drug testing, she collects approximately 120 strands of hair from an individual, folds the hair in an envelope, seals the envelope, completes a "chain-of-custody" form, and ships the sample by FedEx to a laboratory in Ohio. However, she stated that she did not have any personal knowledge about what happens to a hair sample after she ships it to Ohio.
On the third day of trial, counsel for the children and for S.S. objected again, citing In re K.C.P.4 for the proposition that the business records regarding the drug test results should not be admitted. The trial court overruled their objections. Paige Jones, a caseworker with the Department, testified that she was a conservatorship caseworker in 2009 when she was assigned to the children. During her testimony, the Department offered into evidence Exhibits 8 and 9, i.e., two affidavits of business records from the Texas Alcohol and Drug Testing Service. Counsel for the children and for S.S. renewed their previous objections, and stated that Jones was not the proper witness to authenticate or lay the foundation for these exhibits. The trial court noted their previous objections, overruled them, and admitted the exhibits. On cross examination, Jones testified that she received the drug test results from the Texas Alcohol and Drug Testing Service, that she did not have any familiarity with the methodology for testing, that she could not state that the testing is reliable, and that she had no personal knowledge that testing was done in accordance with industry standards.
Exhibits 8 and 9 are business records affidavits from the Texas Alcohol and Drug Testing Service. The affidavits are signed by Vicki S. Phelps, the custodian of records, and are substantially the same as the form provided in Texas Rule of Evidence 902(10)(b). Exhibit 8 included reports of the results of thirteen hair follicle drug tests and Exhibit 9 included a report of the result of one hair follicle drug test. Each exhibit included a drug testing custody and control form for each report. The following are the results of the drug tests:
• June 17, 2009—S.S.1 and R.W., Jr. tested positive for cocaine, but S.S. and K.S. tested negative.
• June 26, 2009—R.L.W. tested positive for cocaine.
• October 12, 2010—K.S. and R.L.W. tested positive for cocaine and S.S. tested positive for marijuana.
• July 13, 2011—S.S. and K.S. tested positive for marijuana, R.W., Jr. tested positive for cocaine, and S.S.1 tested negative.
• S. S. tested positive for marijuana on two other occasions (December 9, 2009 and April 8, 2010).
The records complained of clearly are business records from the Texas Alcohol and Drug Testing Service. The children contend, however, that the critical question is whether the statements, i.e., the drug test results, showed sufficient indicia of trustworthiness or reliability to bring them within an exception to the hearsay rule. See In re K.C.P., 142 S.W.3d 574, 579 (Tex. App.—Texarkana 2004, no pet.); see also TEX. R. EVID. 803(6) (). As pointed out in In re K.C.P., some civil cases have found business records containing laboratory test results admissible by showing where the specimen was drawn, that it was sent to a laboratory, and that a medical doctor analyzed it and reported the results. See id. (citing March v. Victoria...
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