positive test in Texas

2020See In re J.L.B., 349 S.W.3d 836, 848 (Tex. App.—Texarkana 2011, no pet.) (“Drug use and its effect on a parent’s life and his ability to parent may establish an endangering course of conduct.”).

2019See In re J.L.B., 349 S.W.3d 836, 848 (Tex. App.—Texarkana 2011, no pet.) (“Drug use and its effect on a parent’s life and his ability to parent may establish an endangering course of conduct.”).

2013Somers v. State , 333 S.W.3d 747, 753 (Tex. App.—Waco 2010) (“As previously discussed, the EMIT test was positive for cocaine, but the confirmation [GCMS] test was negative.”), overruled on other grounds by 368 S.W.3d 528, 530 (Tex. Crim.

2013Somers v. State, 333 S.W.3d 747, 753 (Tex.App.-Waco 2010) ("As previously discussed, the EMIT test was positive for cocaine, but the confirmation [GCMS] test was negative.”), overruled on other grounds by 368 S.W.3d 528, 530 (Tex.Crim.App.2012) ("The [EMIT] results were positive for both cocaine and amphetamines.").

2023But no party here has asked us to revisit the Phillips factors, and we apply them in accordance with our precedent. 17 106 S.W.3d 705 . 18 903 S.W.2d 347 (Tex. 1995). 19 Id. at 348 . 6 laboratory improperly performed the test or reported an incorrect result but instead complained that it “should have informed her and her prospective employer that eating poppy seeds could cause a positive test result.”20 After concluding that no court had previously recognized such a duty,21 we considered the Phillips factors and concluded they did not support recognizing the duty the claimant proposed.22 Altho

2023But no party here has asked us to revisit the Phillips factors, and we apply them in accordance with our precedent. 17 106 S.W.3d 705 . 18 903 S.W.2d 347 (Tex. 1995). 19 Id. at 348 . 6 laboratory improperly performed the test or reported an incorrect result but instead complained that it “should have informed her and her prospective employer that eating poppy seeds could cause a positive test result.”20 After concluding that no court had previously recognized such a duty,21 we considered the Phillips factors and concluded they did not support recognizing the duty the claimant proposed.22 Altho

2022See In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (stating that factfinder “could reasonably infer that appellant’s failure to complete the scheduled screenings indicated she was avoiding testing because she was using drugs”); In re E.R.W., 528 S.W.3d 251 , 264–65 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“A parent’s decision to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of losing a child, may support a finding that the parent engaged in conduct that endangered the child’s physical or emotional well-being.”);

2022See In re C.J.Y., No. 04-20-00009-CV, 2020 WL 3441248 , at *5 (Tex. App.—San Antonio June 24, 2020, pet. denied) (mem. op.); see also In re E.R.W., 528 S.W.3d 251, 265 (Tex. App.— Houston [14th Dist.] 2017, no pet.) (a fact finder can reasonably infer that a parent’s failure to submit to court-ordered drug tests indicates the parent is avoiding testing because they were using illegal drugs).

2013Blood triggering a positive test in one of the EMIT screening classes must be further tested by the GCMS to determine “which type of analyte [sic], which type of drug, and how much of that drug.” Thus, while it is undisputed that Appellant’s blood triggered a positive response on the EMIT test in the cocaine and/or cocaine metabolites class, this positive result did not show whether the test was positive because of the presence of cocaine metabolite only or because of the presence of cocaine and cocaine metabolite, nor did it quantify the amount of cocaine and/or cocaine metabolite that trigge

2013Somers v. State, 333 S.W.3d 747, 753 (Tex.App.-Waco 2010) ("As previously discussed, the EMIT test was positive for cocaine, but the confirmation [GCMS] test was negative.”), overruled on other grounds by 368 S.W.3d 528, 530 (Tex.Crim.App.2012) ("The [EMIT] results were positive for both cocaine and amphetamines.").

1979The rule existed in Texas as a positive rule of law and not as a rule of construction, Sybert v. Sybert, 152 Tex. 106 , 254 S.W.2d 999, 1000 (1953), until the legislature abolished the rule effective 1 January 1964.

1979The rule existed in Texas as a positive rule of law and not as a rule of construction, Sybert v. Sybert, 152 Tex. 106 , 254 S.W.2d 999, 1000 (1953), until the legislature abolished the rule effective 1 January 1964.

2025A parent’s “failure to drug test is considered a positive test result under the law and supports an inference that she is still using drugs.” In re M.M., No. 04-21-00463-CV, 2022 WL 1096381 , at *4 (Tex. App.—San Antonio Apr. 13, 2022, no pet.); see also In re A.M.L., No. 04-19-00422-CV, 2019 WL 6719028 , at *4 (Tex. App.—San Antonio Dec. 11, 2019, pet. denied) (noting the trial court “could have reasonably inferred that [parent’s] failure to appear for drug testing indicated that [she] was avoiding testing because [she] was using drugs.”). “[T]he factfinder may conclude that a parent’s change

2023And although Father denied using cocaine when confronted with the positive test result, Bonaguro testified that Father’ statements about his drug use throughout the case had been consistently “inconsistent.” See In re A.B., 437 S.W.3d at 503 ; see also In re J.P.B., 180 S.W.3d at 573 (requiring deference to factfinder when assessing credibility and demeanor of witnesses).

2023See In re Z.C., 280 S.W.3d 470, 474 (Tex. App.—Fort Worth 2009, pet. denied) (stating that a parent’s illegal drug use and drug-related criminal activity may support a finding that the child’s surroundings endanger his physical or emotional well-being); In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied) (stating that a history of illegal drug use and drug-related criminal activity is conduct that subjects a child to a life that is uncertain and unstable, thus endangering his physical and emotional well-being); see also In re A.F., No. 10-19- 00335-CV, 2020 Tex. App. LEXI

2023See In re Z.C., 280 S.W.3d 470, 474 (Tex. App.—Fort Worth 2009, pet. denied) (stating that a parent’s illegal drug use and drug-related criminal activity may support a finding that the child’s surroundings endanger his physical or emotional well-being); In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied) (stating that a history of illegal drug use and drug-related criminal activity is conduct that subjects a child to a life that is uncertain and unstable, thus endangering his physical and emotional well-being); see also In re A.F., No. 10-19- 00335-CV, 2020 Tex. App. LEXI

2023Specifically, we concluded that the proposed duty could not be “readily defined” and was “unworkable”; that it would require the laboratory to fulfill responsibilities that, under its contractual agreement, belonged to the claimant’s employer; and that it would “impinge[] on the liability of other professionals for services rendered.”23 Importantly, we concluded our duty analysis in SmithKline by “emphasiz[ing] that we have not considered whether a drug testing laboratory . . . has a duty to use reasonable care in performing tests and reporting the results.”24 20 Id. 21 Id. at 351 . 22Id. at 3

2022See In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (stating that factfinder “could reasonably infer that appellant’s failure to complete the scheduled screenings indicated she was avoiding testing because she was using drugs”); In re E.R.W., 528 S.W.3d 251 , 264–65 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“A parent’s decision to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of losing a child, may support a finding that the parent engaged in conduct that endangered the child’s physical or emotional well-being.”);

2021We are not to “second-guess the trial court’s resolution of a factual dispute by relying on evidence that is either disputed, or that the court could easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).

2018See In re O.R.F., 417 S.W.3d 24, 38 (Tex. App.—Texarkana 2013, pet. denied) (explaining that drug addiction and its effect on a parent’s life and ability to parent may support a course of conduct by a parent that justifies a decision to terminate a parent’s rights); see also In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (explaining that a parent’s history of drug use is relevant to the trial court’s best-interest finding); Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ) (allowing a factfinder to give significant

2018See In re O.R.F., 417 S.W.3d 24, 38 (Tex. App.—Texarkana 2013, pet. denied) (explaining that drug addiction and its effect on a parent’s life and ability to parent may support a course of conduct by a parent that justifies a decision to terminate a parent’s rights); see also In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (explaining that a parent’s history of drug use is relevant to the trial court’s best-interest finding); Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ) (allowing a factfinder to give significant

2018See In re O.R.F., 417 S.W.3d 24, 38 (Tex. App.—Texarkana 2013, pet. denied) (explaining that drug addiction and its effect on a parent’s life and ability to parent may support a course of conduct by a parent that justifies a decision to terminate a parent’s rights); see also In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (explaining that a parent’s history of drug use is relevant to the trial court’s best-interest finding); Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ) (allowing a factfinder to give significant

2014In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013); see, e.g., In re J.S.G., No. 14–08–00754–CV, 2009 WL 1311986 , at *6–7 (Tex. App.—Houston [14th Dist.] May 7, 2009, no pet.) (mem. op.) (relying on caseworker’s affidavit in support of Department’s removal request, as well as trial court’s temporary orders concluding that children faced danger to their physical health or safety and substantial risk of continuing danger if returned home, to conclude that evidence established that children were removed “as a result of neglect specific to them by” mother); see also D.F. v. Tex. Dep’t of Family & Prot