
COURT OF 
APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-03-260-CV
  
  
IN 
THE INTEREST OF K.W.
  
   
------------
 
FROM 
THE 323RD DISTRICT COURT OF TARRANT COUNTY
 
------------
 
OPINION
 
------------
        This 
is a termination of parental rights appeal.  Following a bench trial on 
August 25, 2003, the trial court terminated the parental rights of Appellant 
Martha T. to her four-year-old son, K.W. The trial court also terminated the 
parental rights of Appellant Charles W., K.W.’s alleged biological father.1  We affirm the trial court’s judgment terminating 
the parental rights of Martha T.  We reverse that portion of the trial 
court's judgment terminating the parental rights of Charles W., and we render 
judgment that the Texas Department of Protective and Regulatory Services (TDPRS)2 take nothing on its claim seeking to terminate the alleged 
parental rights of Charles W. to his alleged son K.W.  We remand this cause 
to the trial court for further proceedings consistent with the establishment of 
the parent-child relationship between Charles W. and the minor child K.W.
Background
        Martha 
testified at trial. Charles was incarcerated in prison in New York and did not 
testify at trial; his court-appointed attorney was present on his behalf. Martha 
testified that she and Charles began a relationship in 1997 when they were both 
living in New York. When Martha told Charles that he was going to be a parent, 
he was happy. Charles was incarcerated in New York in November 1998. During her 
pregnancy, Martha was incarcerated for criminally negligent homicide, a charge 
for which she was later acquitted.  Several months after she was acquitted 
of this charge, Martha gave birth to K.W. on February 13, 1999.  At that 
time, Charles was still incarcerated and remained incarcerated at the time of 
this trial seeking to terminate his parental rights. Martha twice took K.W. to 
visit Charles in prison in New York.
        Martha 
left New York in August 1999 and moved to Texas.  She did not inform 
Charles that she was leaving the state of New York.  In October 1999 she 
sent a few letters to Charles in prison in New York, but after one and one-half 
months she ceased writing to him.  Over the next two and one-half years she 
had multiple residences, including family members’ residences, a trailer 
house, numerous motel rooms, and the Arlington Night Shelter.  To her 
knowledge, Charles had no idea where she and K.W. were residing after she ceased 
corresponding with him.
        In 
June 2001, Martha met Byron Keith Herford while she was living in Ennis, 
Texas.  In October 2001, Martha, K.W., and Herford moved to Fort 
Worth.  He was a user of crack cocaine and Martha began smoking crack; 
Martha acknowledged that they were both drug users and there was not a specific 
place where she, Herford, and K.W. were living.  Between October 2001 and 
February 2002, Martha left K.W. in the care of Herford.  Martha started 
noticing marks and bruises on K.W., and when she told Herford she and K.W. might 
go to a women’s shelter, he beat her up and told her that if she left she 
would be taken to jail because K.W. had bruises on him.  One time she saw a 
mark or welt on K.W.’s buttocks that was five to six inches long, and another 
time she saw marks on K.W. that were scratch marks.
        On 
February 24, 2002, Officer Brandy Albano responded to a report that a man was 
seen at a convenience store in Arlington leaning over a stroller and striking a 
child in the face.  When Albano arrived at the store, she made contact with 
Martha, Herford, and K.W.  Albano noticed a stench of urine coming from 
K.W. and the dirtiness of his clothing.  Albano removed a rag from K.W.’s 
head and saw several abrasions on his forehead that were open and fresh and 
oozing.  Albano pulled up K.W.’s shirt sleeves and pants legs and noticed 
various marks that appeared to possibly be burns, as well as bruises on K.W.’s 
legs, back, buttocks, and shoulder.  By the time Albano arrived at the 
hospital with K.W., a new injury had appeared on his jawline which had swelled 
up and turned purple.  In Albano’s opinion, these injuries were 
intentionally inflicted and were not consistent with normal childhood injuries.
        Chris 
Oliver, an investigator for TDPRS, testified that on February 24, 2002 he met a 
police officer at Cook’s Hospital and took photographs of K.W.’s 
injuries.  He discussed K.W.’s injuries with the police officers and the 
doctors at the hospital.  Based upon his investigation, it was his opinion 
that K.W.’s injuries were consistent with child abuse, and after K.W. was 
released from the hospital he was removed from Martha’s care and placed in the 
protective environment of a foster home.  Oliver went to the Arlington City 
Jail and discussed K.W.’s injuries with Martha, who said that Herford was 
abusive to her and to the child, she had concerns about Herford injuring K.W., 
and she had planned on leaving but Herford would not allow her to leave.
        Officer 
Albano filed felony criminal charges of endangerment to a child against both 
Martha and Herford.  On August 5, 2002, Martha pled guilty to the charge 
and received five years’ probation.  Her probation was revoked on July 7, 
2003 and Martha was sentenced to eight months in the State Jail Division of the 
Texas Department of Criminal Justice.  She was bench warranted back to 
Tarrant County for this trial involving the termination of her parental rights.
Burden Of Proof In Termination Proceedings
        A 
parent’s rights to “the companionship, care, custody, and management” of 
his or her children are constitutional interests “far more precious than any 
property right.” Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 
1388, 1397 (1982).  “While parental rights are of constitutional 
magnitude, they are not absolute. 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.”  In re C.H., 89 S.W.3d 
17, 26 (Tex. 2002).
        
In a termination case, the State seeks not just to limit parental rights but to 
end them permanently—to divest the parent and child of all legal rights, 
privileges, duties, and powers normally existing between them, except for the 
child’s right to inherit.  Tex. Fam. Code Ann. § 
161.206(b) (Vernon Supp. 2004); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 
1985).  We strictly scrutinize termination proceedings and strictly 
construe involuntary termination statutes in favor of the parent. Holick, 
685 S.W.2d at 20-21; In re D.T., 34 S.W.3d 625, 630 (Tex. App.—Fort 
Worth 2000, pet. denied) (op. on reh’g).
        In 
proceedings to terminate the parent-child relationship brought under section 
161.001 of the family code, the petitioner must establish one or more of the 
acts or omissions enumerated under subdivision (1) of the statute and must also 
prove that termination is in the best interest of the child.  TEX. FAM. CODE ANN. § 
161.001 (Vernon 2002); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 
1984); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. 
denied).  Both elements must be established; termination may not be based 
solely on the best interest of the child as determined by the trier of 
fact.  Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 
(Tex. 1987).
        Termination 
of parental rights is a drastic remedy and is of such weight and gravity that 
due process requires the petitioner to justify termination by “clear and 
convincing evidence.”  Tex. Fam. Code Ann. §§ 
161.001, 161.206(a); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).  
This intermediate standard falls between the preponderance standard of ordinary 
civil proceedings and the reasonable doubt standard of criminal 
proceedings.  G.M., 596 S.W.2d at 847; D.T., 34 S.W.3d at 
630.  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 2002).
Trial Court’s Findings
        Although 
requested, the trial court did not file findings of fact and conclusions of 
law.  In its judgment,3  the trial court 
found that both Martha and Charles: 1) knowingly placed or knowingly allowed 
K.W. to remain in conditions or surroundings which endangered K.W.’s physical 
or emotional well-being (section 161.001(1)(D)); 2) engaged in conduct or 
knowingly placed K.W. with persons who engaged in conduct which endangered his 
physical or emotional well-being (section 161.001(1)(E)); and 3) constructively 
abandoned K.W. (section 161.001(1)(N)).  The trial court also found that it 
is in K.W.’s best interest to terminate Appellants’ parental rights (section 
161.001(2)).4
Appellants’ Issues On Appeal
        Both 
Appellants challenge the legal and factual sufficiency of the evidence to 
support the trial court’s findings that they violated either of the two 
statutory grounds for termination concerning endangering K.W.  See id. 
§ 161.001(1)(D), (E).  They additionally challenge the legal and factual 
sufficiency of the evidence that they constructively abandoned K.W. who had been 
in the permanent or temporary managing conservatorship of TDPRS for not less 
than six months.  See id. § 160.001(1)(N). Lastly, Charles asserts 
the trial court erred in denying his motion to stay the proceedings for a 
three-month period after which time he was scheduled to be released from prison 
in New York and could have attended a trial in this case in Texas.
Standard Of Review
        In 
a trial to the court where no findings of fact or conclusions of law are filed, 
the trial court’s judgment implies all findings of fact necessary to support 
it.  Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 
1996).  Where a reporter’s record is filed, however, these implied 
findings are not conclusive and an appellant may challenge them by raising both 
legal and factual sufficiency of the evidence issues.  Roberson v. 
Robinson, 768 S.W.2d 280, 281 (Tex. 1989).  Where such issues are 
raised, the applicable standard of review is the same as that to be applied in 
the review of jury findings or a trial court’s findings of fact. Id.
        The 
higher burden of proof in termination cases alters the appellate standard of 
legal sufficiency review.  J.F.C., 96 S.W.3d 256, 265 (Tex. 
2002).  The traditional no-evidence standard does not adequately protect 
the parents’ constitutional interests.  Id. I n reviewing the 
evidence for legal sufficiency in parental termination cases, we must determine 
“whether the evidence is such that a factfinder could reasonably form a firm 
belief or conviction” that the grounds for termination were proven. Id. 
at 265-66.  We must review all the evidence in the light most favorable to 
the finding and judgment. Id. at 266.  This means that we must 
assume that the factfinder resolved any disputed facts in favor of its finding 
if a reasonable factfinder could have done so.  Id.  We must 
also disregard all evidence that a reasonable factfinder could have 
disbelieved.  Id.  However, we must consider undisputed 
evidence even if it does not support the finding.  Id.  If we 
determine that no reasonable factfinder could form a firm belief or conviction 
as to the truth of the allegations sought to be established, then the evidence 
is legally insufficient, and we must reverse and render. Id.
        The 
higher burden of proof in termination cases also alters the appellate standard 
of factual sufficiency review.  In re C.H., 89 S.W.3d at 25.  
“[A] finding that must be based on clear and convincing evidence cannot be 
viewed on appeal the same as one that may be sustained on a mere 
preponderance.”  Id.  In considering whether the evidence of 
termination rises to the level of being clear and convincing, we must determine 
“whether the evidence is such that a factfinder could reasonably form a firm 
belief or conviction” that the grounds for termination were proven.  Id.  
Our inquiry here is whether, on the entire record, a factfinder could reasonably 
form a firm conviction or belief that the parent violated one of the conduct 
provisions of section 161.001(1) and that the termination of the parent’s 
parental rights would be in the best interest of the child. Id. at 28.
        Because 
the facts of the situation are different for each Appellant, we will address 
their issues separately.
Termination Of Martha’s Parental Rights
        The 
court found that Martha violated two provisions of the family code dealing with 
endangerment of a child, and that she constructively abandoned K.W. for at least 
a six-month period during which K.W. was in the conservatorship of TDPRS.  See
Tex. Fam. Code Ann. § 
161.001(1)(D), (E), (N).
        Martha 
admitted that the endangerment and constructive abandonment allegations were 
accurate. She testified that after returning to Texas she served time in the 
Tarrant County Jail for “a lot” of speeding tickets and for two misdemeanor 
convictions for possession of marijuana, to which she pled guilty on December 2, 
1999 and November 10, 2000.  She admitted that she knew that Herford was 
physically abusing K.W. and that she did nothing to extricate herself or K.W. 
from the abusive situation.  She admitted that she pled guilty to the 
criminal endangerment charge concerning K.W. and was currently incarcerated in a 
state jail facility for this conviction.  She testified that she pled 
guilty to the criminal charge of endangering K.W. because she believed she had 
endangered him when she did not leave her relationship with Herford.  She 
admitted that she endangered K.W. by leaving him in Herford’s care after she 
realized that Herford was injuring K.W.  She acknowledged she was a drug 
user during the time she was caring for K.W., that she smoked crack cocaine and 
marijuana, and that she did not have a permanent place for K.W. to live.  
She agreed that she had not been able to provide K.W. with a safe and stable 
home.  Although she initially did not use drugs when she was released from 
jail and put on probation, she started using crack cocaine again in January 
2003.  Further, she agreed that she had constructively abandoned K.W. for 
at least a six-month period during which time K.W. was in the conservatorship of 
TDPRS.
        Martha 
explained that she and K.W. remained with Herford because on several occasions 
he threatened to kill her if she said anything about K.W.’s injuries, and she 
felt trapped.  She testified that she was trying to improve herself and 
that she got her GED when she was in the Tarrant County Jail. Martha 
acknowledged that she “was a drug addict, and I still fight that every day,” 
but said that when she gets out of the state jail facility she wants to check 
herself into a treatment center.  She loves K.W. and wants to see him after 
she is released from confinement.
        The 
arresting officer and the investigator for TDPRS both testified that in their 
opinions the injuries exhibited by K.W. were intentionally inflicted, were 
consistent with child abuse, and were not consistent with normal childhood 
injuries.
        On 
appeal, Martha asserts the evidence of endangerment is insufficient because the 
determination of whether K.W.’s injuries were accidental or intentionally 
inflicted requires scientific expertise, and neither the arresting officer nor 
the investigator for TDPRS were qualified under Rule 702 as experts. Tex. R. Evid. 702.  
Martha cites no cases in support of her theory that scientific evidence is 
required in order for the factfinder to determine whether the endangerment 
allegations of section 161.001(1)(D) or (E) were proven at trial.  We 
decline to hold that expert medical testimony is mandatory in a suit seeking to 
terminate parental rights under section 161.001(1)(D) or (E).  We note that 
the witnesses’ testimony was unobjected to by Martha at trial, and she herself 
testified that the evidence supported the two endangerment allegations.  
Additionally, she acknowledged pleading guilty to criminal endangerment because 
she was guilty of this offense.
        Applying 
the appropriate standards of review, we find that there is legally and factually 
sufficient evidence to support termination of Martha’s parental rights based 
upon the grounds listed in section 161.001(1)(D) and (E), that Martha knowingly 
placed or knowingly allowed K.W. to remain in conditions or surroundings which 
endangered his physical or emotional well-being, and that Martha knowingly 
engaged in conduct or knowingly placed K.W. with persons who engaged in conduct 
which endangered his physical or emotional well-being.
        If 
multiple conduct grounds are alleged for termination, the evidence is factually 
sufficient if it supports just one of the alleged conduct grounds.  In 
re W.J.H., 111 S.W.3d 707, 715 (Tex. App.—Fort Worth 2003, pet. denied) . 
Accordingly, we need not address whether the evidence is sufficient to establish 
termination pursuant to the constructive abandonment ground of section 
161.001(1)(N). We overrule both of Martha’s issues on appeal.
Termination Of Charles’ Parental Rights
        At 
the conclusion of the trial, the trial court stated:
 
Now 
as far as [Charles] is concerned, it would appear to me that his lack of concern 
about the child, about whether he had a child, and he knew he had a child, and 
where it went, whether it needed to be supported, what happened to the child, 
indicates a complete and total lack of responsibility on his part, and again, as 
has been pointed out, he’s never really acknowledged that it is his child as 
is set up under the law.
 
That 
being the case, I’m going to terminate whatever rights he might have had.

 
        Charles 
was served with the termination petition in April 2002 while he was incarcerated 
in prison in New York. Charles’ alleged parental rights were eventually 
terminated based upon: failure to file an admission of paternity 
(section161.002(b)(1)); failure to register with the paternity registry and his 
whereabouts cannot be determined (section 161.002(b)(2)); endangering a child 
(section 161.001(D)-(E)); and constructive abandonment for at least a six-month 
period when a child is in the conservatorship of TDPRS (section 161.001(N)).5
        Charles 
raises legal and factual sufficiency challenges to each of these grounds for 
termination. When a party presents multiple grounds for reversal of a judgment 
on appeal, the appellate court should first address those points or issues that 
would afford the party the greatest relief.  CMH Homes, Inc. v. Daenen, 
15 S.W.3d 97, 99 (Tex. 2000); Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. 
Co., 995 S.W.2d 675, 677 (Tex. 1999).  If disposition of one issue 
would result in a rendition, the court should consider that issue before 
addressing any issues that would only result in a remand.  Bradleys’
Elec., 995 S.W.2d at 677. Accordingly, we first address Charles’ legal 
sufficiency challenges.
Section 
161.002
        TDPRS’s 
petition requested the trial court terminate Charles’ rights as the alleged 
father under section 161.002(b) of the family code which provides, in pertinent 
part:
  
(b) 
The rights of an alleged father may be terminated if:
 
(1) 
after being served with citation, he does not respond by timely filing an 
admission of paternity or a counterclaim for paternity under Chapter 160;
 
(2) 
he has not registered with the paternity registry under Chapter 160, and after 
the exercise of due diligence by the petitioner:
 
(A) 
his identity and location are unknown; or
(B) 
his identity is known but he cannot be located.

Tex. Fam. Code Ann. § 
161.002(b).
 
Did Charles file an admission of paternity?
        The 
trial court’s judgment recites that Charles is the alleged biological father 
of K.W., and his alleged parental rights are terminated under section 
161.002(b)(1) because after being served with citation he “did not respond [to 
this termination suit] by filing an admission of paternity or by filing a 
counterclaim for paternity or for voluntary paternity to be adjudicated under 
chapter 160 of the Texas Family Code before the final hearing in this suit.”
        Charles 
did not file a counterclaim for paternity or for voluntary paternity under 
chapter 160 of the family code. However, he maintains that he did file several 
admissions of paternity; therefore, the trial court erred in terminating his 
alleged parental rights under section 161.002(b)(1).
        In 
April 2002, Charles was in prison in New York where he was served with TDPRS’s 
petition seeking to terminate his parental rights.  In early May 2002, 
Charles wrote a letter to TDPRS that begins: “I Charles [W.] am the biological 
father of [K.W.]. I am writing you and the courts to inform you’s [sic] that I 
am not giving up my parental rights.”  He then requested that K.W. be 
permitted to live with Charles’ aunt in New York.
        On 
May 9, 2002, the trial court filed a letter that Charles sent to the court 
coordinator. This letter recites: “I Charles [W.] am the biological father of 
[K.W.] age 3 born 2-13-99. In Erie County, City of Buffalo.”  Charles 
states that he is in prison in New York, he was completely unaware of his 
son’s whereabouts or of any alleged abuse, he is deeply concerned about his 
son, and concludes by stating “Also I would like to inform all parties that in 
no way do I wish to abandoned [sic] my parental rights.”
        In 
a December 2, 2002 letter to the court, Charles states that “I would also like 
to subject to an paternity test no because I wanna prove that [K.W.] is my son 
cause I know he is but so that I can file for visitation and partial custody 
seeing that I am all the way in New York state and my son is in Texas.”  
On July 29, 2003, the court received a letter from Charles that stated “I am 
the biological father incarcerated” and “I pray that this court take into 
consideration of my letter, and allow me to have my child upon my release.  
No person in their right human mind would want their child taken away from them 
when the[y] are trying everything to prove themselves as a parent.”
        We 
find guidance in the case of Estes v. Dallas County Child Welfare Unit of 
Texas Department of Human Services., 773 S.W.2d 800 (Tex. App.—Dallas 
1989, writ denied), which was decided under a former but very similar version of 
the family code.  In Estes, the court of appeals construed the 
requirements of former family code section 15.023.6  
Id. at 801.  The pertinent language of former section 15.023 is 
essentially identical to that of current section 161.002(b)(1).7  
Both sections specify that an alleged father’s parental rights may be 
terminated if, after being served with citation, he “does not respond by 
timely filing an admission of paternity.”8   
The Texas Department of Human Services took the position in Estes that an 
“admission of paternity” under section 15.023 must meet the stringent 
requirements of former sections 13.21-.22 of the family code dealing with a 
“statement of paternity.”9 Estes, 773 
S.W.2d at 801-02.  This is the same position that TDPRS makes in the 
instant case.  The Estes court concluded that:
  
[I]f 
the Texas Legislature had meant to require a statement of paternity under 
section 15.023, it would have used the words “statement of paternity” 
instead of “admission of paternity.” Since the Legislature did not use those 
words, it follows that Estes did not have to satisfy the requirements of section 
13.22 regarding statements of paternity.
 
 
773 
S.W.2d at 802. Estes contended that his pro se answer alleging he “is an 
‘indigent parent’” was a specific admission of paternity sufficient to put 
the trial court and the Texas Department of Human Services on notice that he 
admitted his paternity and wanted to oppose termination of any rights he might 
have with respect to the child. Id. at 801-02. The court of appeals 
agreed and held the trial court erred in terminating any rights that Estes might 
have with respect to the minor child. Id. at 802.
        TDPRS 
asserts that the Estes case was decided in 1989 under the former family 
code and therefore is not relevant.  We disagree. As noted, except for the 
substitution of “acknowledgment of paternity” for “statement of 
paternity” in the voluntary legitimation statute and the requirement that the 
applicant must now state whether genetic testing has been performed, the former 
family code contained essentially the same requirements as the current family 
code regarding establishing parentage and termination of parental rights of 
alleged parents.  See Tex. Fam. Code Ann. §§ 
160.301-.302.
        TDPRS 
argues that if we accept Charles’ argument that his letters to the trial court 
and to TDPRS constitute admissions of paternity under section 161.002(b)(1), 
this would “trump” the entirety of the Uniform Parentage Act, and render it 
useless.  We do not agree.  Chapter 160, the Uniform Parentage Act, 
sets out the mechanism by which parentage may be established.  Chapter 161 
sets out the mechanism by which a biological mother’s or alleged biological 
father’s parental rights may be terminated.  We do not find the two 
chapters to be inconsistent or in conflict; each serves a separate and distinct 
purpose.
        We 
hold that Charles’ letters to TDPRS and to the court constitute admissions of 
paternity sufficient to put TDPRS and the trial court on notice that Charles 
admitted his paternity and wanted to oppose termination of any rights he might 
have with respect to K.W.  See Estes, 773 S.W.2d at 802. The issue 
of whether Charles established his parentage was not before the trial court and 
is therefore not before this court.
        Because 
we conclude that Charles’ letters to TDPRS and to the court constitute 
admissions of paternity, we hold that there is no evidence to support the trial 
court’s finding under section 161.002(b)(1) that Charles’ alleged parental 
rights are terminated because he failed to file an admission of paternity.
Did TDPRS know Charles’ location?
        The 
court found that TDPRS had met the requirements for termination listed in 
section 161.002(b)(2) because Charles had not registered with the paternity 
registry “and after the exercise of due diligence by the Department, his 
identity is known, but he cannot be located” and that TDPRS “has exercised 
due diligence in attempting to identify, locate, and serve the alleged 
father.”  At trial, Charles’ counsel acknowledged that Charles did not 
register with the paternity registery, but on appeal Charles argues that there 
is no evidence to support the court’s finding that TDPRS used due diligence to 
locate him and that his location is unknown.
        Our 
record does not contain the sworn affidavit that must be filed by TDPRS and 
reviewed by the trial court, in which TDPRS is required to describe its efforts 
to locate the alleged father. See Tex. Fam. Code Ann. § 
161.002(e).  However, we note that the trial court’s judgment recites 
that Charles’ last known address is: P.O. Box 1186, Moravia, NY 13118. 
Additionally, Karolyn Adams, the TDPRS caseworker assigned to K.W.’s case, 
testified that she and Charles have “been corresponding ever since the 
beginning of this case.  I had an address for him in jail and we 
corresponded as often as possible.”  Further, the court’s file contains 
letters sent by Charles to the trial court on May 9, 2002, December 2, 2002, and 
July 29, 2003.  All three letters reflect Charles’ address at the prison 
in New York.  Therefore, it is uncontroverted that TDPRS and the court were 
aware of Charles’ exact address at the prison in New York at the time of the 
termination hearing and entry of the trial court’s judgment. Accordingly, we 
conclude that Charles’ alleged parental rights cannot be terminated based upon 
section 161.002(b)(2), because there is no evidence to support the trial 
court’s finding that TDPRS used due diligence in attempting to locate Charles 
but was unable to determine his location.
Sufficiency 
of endangerment findings
        We 
next address the legal sufficiency of the evidence to support the trial court's 
findings that Charles: 1) knowingly placed or knowingly allowed K.W. to remain 
in conditions or surroundings which endangered his physical or emotional 
well-being; or 2) engaged in conduct or knowingly placed K.W. with persons who 
engaged in conduct that endangered his physical or emotional well-being.  See
Tex. Fam. Code Ann. § 
161.001(1)(D), (E).  There must be evidence of endangerment to the child's 
physical or emotional well-being as the direct result of the parent's 
conduct.  D.T., 34 S.W.3d at 634.
        Charles 
was incarcerated in New York at the time of K.W.’s birth and remained 
incarcerated at the time of the termination trial.  TDPRS’s caseworker 
testified she began corresponding with Charles after he was served in this 
termination suit and that Charles said he knew Martha had moved to Texas, but he 
did not have any information on how to get in contact with her in Texas.  
The caseworker stated she continued to correspond with Charles and that he told 
her he was not aware of Martha’s situation or of the abuse that was going on 
while he was incarcerated in New York.
        Martha 
testified that Charles is K.W.’s father and that she did not tell him when she 
and K.W. moved from New York to Texas when K.W. was six months old.  After 
she moved, she wrote to Charles and told him that she was living in Texas at the 
house of her older son’s grandparents.  Charles and Martha wrote several 
times, but after one and one-half months she ceased writing to him.  She 
did not know if Charles continued to send her letters, but the older son’s 
grandparents did not forward her any letters.  She acknowledged that 
Charles knew she had previously smoked marijuana, but testified he did not know 
of her relationship with Herford or the instabilities in her life or of her use 
of drugs other than marijuana.  She said that Charles did not know of her 
whereabouts in Texas after she ceased writing to him, nor did he know of her 
relationship with Herford or that Herford was abusing her or K.W.
        TDPRS 
introduced copies of two documents entitled “Certificate of Conviction — 
Imprisonment” from the county clerk in Buffalo, New York, reflecting that 
Charles had been convicted of the felony offenses of attempted burglary and 
attempted criminal possession of a controlled substance.
        In 
a suit to involuntarily terminate the rights of an imprisoned parent, mere 
imprisonment will not, standing alone, constitute engaging in conduct which 
endangers the emotional or physical well-being of a child.  Boyd, 
727 S.W.2d at 533-34.  However, if the evidence, including the 
imprisonment, shows a course of conduct that has the effect of endangering the 
physical or emotional well-being of the child, a finding of endangerment is 
supportable. Id. at 534.
        Reviewing 
all the evidence in the light most favorable to the trial court’s findings of 
endangerment, we find no evidence that Charles knew of Martha’s living 
arrangements in Texas, her abuse situation with Herford or that he was abusing 
or endangering K.W., or that Martha was smoking crack cocaine.  Charles 
initially had an address where he could write to Martha, but that address 
changed after one and one-half months and Martha never again contacted 
him.  The first time he became aware of Martha’s or K.W.’s abusive 
situation was when he was served with citation in this termination of parental 
rights suit.
        Construing 
the evidence in the light most favorable to the trial court’s judgment, we 
hold there is no evidence from which a factfinder could reasonably form a firm 
belief or conviction that Charles knowingly placed K.W. or knowingly allowed 
K.W. to remain in conditions or surroundings which endangered K.W.’s physical 
or emotional well-being.  We further hold there is no evidence that Charles 
engaged in conduct or knowingly placed K.W. with persons who engaged in conduct 
that endangered K.W.’s physical or emotional well-being.
        Accordingly, 
we conclude that Charles’ parental rights cannot be terminated based upon 
section 161.001(1)(D) or (E) because there is no evidence to support the trial 
court’s findings on these grounds.
Sufficiency 
of finding of constructive abandonment
        Section 
161.001(1)(N) provides that a person’s parental rights may be terminated if 
he:
(N)constructively 
abandoned the child who has been in the permanent or temporary managing 
conservatorship of the Department of Protective and Regulatory Services or an 
authorized agency for not less than six months, and:
 
(i)the 
department or authorized agency has made reasonable efforts to return the child 
to the parent;
 
(ii)the 
parent has not regularly visited or maintained significant contact with the 
child; and
 
(iii)the 
parent has demonstrated an inability to provide the child with a safe 
environment.

Tex. Fam. Code Ann. § 
161.001(1)(N).
        The 
TDPRS caseworker acknowledged that the only problem with Charles being a 
possible placement for K.W. was Charles’ incarceration in New York.  Once 
Charles became aware of K.W.’s whereabouts and the alleged abusive situation 
K.W. had been placed in by Martha, he corresponded regularly with the caseworker 
to inquire about K.W.’s condition.  He expressed a desire to become more 
involved in K.W.’s life.  He requested that K.W. be placed with 
Charles’ aunt, a licensed foster parent in New York, and at his request a home 
study was conducted concerning such a possible placement.  He also sent 
several letters to the court expressing his concerns and desires about his son 
and the pending lawsuit. Additionally, he sent the caseworker a letter addressed 
to his son.
        Construing 
the evidence in the light most favorable to the trial court’s judgment, we 
hold there is no evidence from which a factfinder could reasonably form a firm 
belief or conviction that Charles constructively abandoned K.W. while K.W. was 
in the care of TDPRS.  Accordingly, we conclude that Charles’ parental 
rights cannot be terminated based upon section 161.001(1)(N) because there is no 
evidence to support the trial court’s finding on this ground.
Conclusion
        We 
sustain Charles’ first issue. Because of our disposition of this issue, it is 
unnecessary to address Charles’ other issues.  See Tex. R. App. P. 47.1.  
We affirm the trial court’s judgment terminating the parental rights of Martha 
T.  We reverse that portion of the trial court's judgment terminating the 
parental rights of Charles W., and we render judgment that the Texas Department 
of Protective and Regulatory Services take nothing on its claim seeking to 
terminate the alleged parental rights of Charles W. to his alleged son 
K.W.  We remand this cause to the trial court for further proceedings 
consistent with the establishment of the parent-child relationship between 
Charles W. and the minor child K.W.
 
  
                                                                  DIXON 
W. HOLMAN
                                                                  JUSTICE
  
 
PANEL 
B:   HOLMAN, GARDNER, and WALKER, JJ.
 
DELIVERED: 
April 15, 2004


NOTES
1.  
To protect the privacy of the parties involved in this appeal, we identify the 
child by initials only and the appellants by first names only. See Tex. Fam. Code Ann. § 
109.002(d) (Vernon 2002).
2.  
Effective February 1, 2004, the name of the agency changed to the Texas 
Department of Family and Protective Services.  However, for the sake of 
consistency in this case, we will continue to use TDPRS when we refer to the 
agency.
3.  
The petition filed by TDPRS sought termination of Appellants’ parental rights 
in K.W. as well as termination of Martha’s parental rights in K.W.’s older 
brother, B.T.  The trial court’s judgment is titled “Order Of 
Termination As To [K.W.] Only” and refers only to K.W.  Additionally, it 
is undisputed that the trial only dealt with K.W. However, the birth date that 
is recited in the trial court’s judgment as belonging to K.W. appears to 
actually belong to B.T.  Further, the social security number that is listed 
in the judgment as belonging to K.W. is the same number that TDPRS listed in its 
petition as belonging to B.T.
4. 
 Tex. Fam. Code Ann. §§ 
161.001(1)(D), (E), (N), 161.001(2) (Vernon 2002).
5.  
Tex. Fam. Code Ann. §§ 
161.001(1)(D), (E), (N), 161.002(b)(1)-(2) (Vernon 2002).
6.  
Act of May 27, 1987, 70th Leg., R.S., ch. 689, § 13, sec. 15.023, 1987 Tex. 
Gen. Laws 2550, 2550, recodified by Act of April 6, 1995, 74th Leg., R.S., 
ch. 20, § 1, sec. 161.002, 1995 Tex. Gen. Laws 113, 213 (current version at Tex. Fam. Code Ann. § 161.002 
(Vernon 2002)).
7.  
Section 15.023 dealt with involuntary termination of “the rights of an alleged 
or probable father with respect to an illegitimate child.” These rights could 
be terminated if, after being served with citation, “the alleged or probable 
father does not respond by timely filing an admission of paternity or by 
filing a counterclaim for paternity or for voluntary legitimation.”  See 
n.6. (emphasis added).
        Current 
section 161.002(b)(1) eliminates the words “probable” and “illegitimate 
child.”  This section provides that the alleged father’s rights may be 
terminated if, after being served with citation the alleged father “does not 
respond by timely filing an admission of paternity or a counterclaim for 
paternity.”  Tex. Fam. Code Ann. § 
161.002(b)(1) (emphasis added).
8.  
See n.7.
9.  
Act of May 29, 1975, 64th Leg., R.S., ch. 476, § 24, secs. 13.21-.22, 1975 Tex. 
Gen. Laws 1261, 1263, recodified by Act of April 6, 1995, 74th Leg., R.S., 
ch. 20, § 1, secs. 160.201-.202, 1995 Tex. Gen. Laws 113, 211-12, amended 
and recodified by Act of May 22, 2001, 77th Leg., R.S., ch. 821, § 1.01, 
secs. 160.301-.302, 2001 Tex. Gen. Laws 1610, 1613 (current versions at Tex. Fam. Code Ann. § 160.301 (Vernon 
Supp. 2004), § 160.302 (Vernon 2002)). (the former version used “statement of 
paternity,” whereas the current version, sections 160.301-.302, uses the term 
“acknowledgment of paternity.”).
