
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-211-CV
 
IN THE INTEREST OF
E.D.L., A CHILD
------------
FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
------------
OPINION
------------
I. INTRODUCTION
Appellant K.B.P. appeals the trial court's
judgment terminating her parental rights to her daughter E.D.L. In three issues,
Appellant presents an issue of first impression regarding the trial court's
subject matter jurisdiction over the case, and she challenges the legal and
factual sufficiency of the evidence to support the court's finding that
terminating her parental rights to E.D.L. was in the child's best interest. We
affirm.
II. BACKGROUND FACTS AND
PROCEDURAL HISTORY
E.D.L. was born on August 17, 1998, when
Appellant was seventeen years old. Appellant has struggled with substance abuse
problems since she was eleven or twelve years old. Since that time she has often
surrounded herself with friends who have contributed to her drug problem, for
which she has sought help and relapsed more than ten times.
Appellant continued to use drugs after
E.D.L. was born. In April 2000, the Texas Department of Protective and
Regulatory Services ("TDPRS") investigated an allegation of child
abuse or neglect involving Appellant and E.D.L. Appellant tested positive for
cocaine and marijuana, and she agreed to undergo inpatient treatment; however,
she failed to complete the program.
On November 5, 2000, TDPRS investigated
another allegation of abuse after receiving information that Appellant had
intentionally burned the back of E.D.L.'s hand with a curling iron and that
Appellant was regularly using drugs. TDPRS investigator Derek Andrews found a
burn mark on E.D.L.'s hand, and he also detected the scent of marijuana when he
went to Appellant's home. Appellant claimed that E.D.L. had burned herself
either when she grabbed the curling iron or when Appellant was not in the
bathroom. Appellant admitted to smoking marijuana, but she refused TDPRS's
requests that she submit to a drug test. Appellant later admitted that she was
on pills the day E.D.L. was burned.
Investigator Andrews next visited
Appellant's residence on November 14, after Appellant accused her sister of
trying to kidnap E.D.L. Andrews asked Appellant to leave E.D.L. in the care of a
relative because the floor in her residence was littered with trash, numerous
cigarette butts, and an open bottle of pills. Andrews again asked Appellant to
take a drug test, but she did not comply with the request. Appellant did leave
E.D.L. with her great-grandmother, but the next day Appellant advised TDPRS of
her intent to leave E.D.L. with her sister, who also used cocaine and had a
prior history with TDPRS. The child was eventually removed from Appellant's
sister on November 29, 2000.
The following day, TDPRS filed its
original petition requesting an ex parte order naming the agency as the
temporary managing conservator of E.D.L. A full adversary hearing was scheduled
for December 12, 2000, but because TDPRS was unable to locate and serve
Appellant until January 11, 2001, the hearing was delayed until January 19,
2001. Initially, TDPRS's plan for E.D.L. was one of family reunification, but
TDPRS's position eventually changed due to Appellant's inability and
unwillingness to comply fully with TDPRS's service plan. Despite agreeing to
comply with the plan, Appellant failed to do so. Consequently, TDPRS changed its
plan from reunification to termination.
On September 10, 2001, TDPRS filed a first
amended petition, alleging that termination was in the best interest of E.D.L.
and that Appellant's actions constituted grounds for termination under
subsections D, E, K, N, O, and/or P of section 161.001(1) of the Texas Family
Code. Tex. Fam. Code Ann. § 161.001(1)(D), (E), (K), (N), (O), (P) (Vernon
2002).(1) After a bench trial on May 7, 2002, the
court entered a decree of termination in which it found that TDPRS had proven
subsections D, E, N, O, and/or P as grounds for terminating Appellant's parental
rights to E.D.L. and further determined that termination was in the best
interest of E.D.L.
III. TRIAL COURT'S SUBJECT
MATTER JURISDICTION
In her first issue, Appellant contends
that the trial court erred in concluding that it had subject matter jurisdiction
over the case because the court lost jurisdiction when it failed to hold an
adversary hearing within fourteen days after TDPRS took possession of the child
as required by sections 262.201(a) and (b) of the Texas Family Code. Appellant
thus argues that every order entered after the trial court lost jurisdiction,
including the termination decree, was void. TDPRS responds that the trial court
did not lose jurisdiction because the legislature did not intend that section
262.201(a) be jurisdictional; rather, TDPRS contends that section 262.201(a) is
procedural. We agree with TDPRS's position.
Section 262.201 provides, in pertinent
part:

Unless the child has already been
    returned to the parent, managing conservator, possessory conservator,
    guardian, caretaker, or custodian entitled to possession and the temporary
    order, if any, has been dissolved, a full adversary hearing shall be
    held not later than the 14th day after the date the child was taken into
    possession by the governmental entity.
   
  At the conclusion of the full adversary
    hearing, the court shall order the return of the child to the parent,
    managing conservator, possessory conservator, guardian, caretaker, or
    custodian entitled to possession unless the court finds sufficient evidence
    to satisfy a person of ordinary prudence and caution that:
   
  
there was a danger to the physical
      health or safety of the child which was caused by an act or failure to act
      of the person entitled to possession and for the child to remain in the
      home is contrary to the welfare of the child;



the urgent need for protection
      required the immediate removal of the child and reasonable efforts,
      consistent with the circumstances and providing for the safety of the
      child, were made to eliminate or prevent the child's removal; and



reasonable efforts have been made to
      enable the child to return home, but there is a substantial risk of a
      continuing danger if the child is returned home.
     
  

Tex. Fam. Code Ann. § 262.201(a), (b)
(Vernon 2002) (emphasis added).
A. Facts Relevant to
Appellant's Adversary Hearing
TDPRS removed E.D.L. from Appellant's
possession on November 29, 2000. Appellant's full adversary hearing was set for
December 12, 2000, but TDPRS had trouble locating and serving Appellant. On
December 1, 2000, TDPRS attempted service on Appellant, but it came back
"returned, unable to locate."
As a result, on December 12, TDPRS made an
oral motion to extend the emergency order and to reschedule the full adversary
hearing for December 22, 2000, which the court granted. When the date of the
second hearing arrived, Appellant still had not been located and served, so the
court again granted TDPRS's oral motion to extend the emergency order and to
reschedule the full adversary hearing. This time, the hearing was set for
January 5, 2001.
On January 3, 2001, TDPRS requested
service on Appellant, and it was yet again "returned, unable to
locate." At the third attempted hearing, on January 5, TDPRS made another
oral motion for continuance and to extend the emergency order, which the trial
court granted, rescheduling the full adversary hearing for January 19, 2001.
TDPRS finally located and served Appellant on January 11, and the court
conducted the full adversary hearing on January 19, 2001.(2)
At the hearing, along with TDPRS and E.D.L.'s guardian ad litem, Appellant
appeared pro se. All agreed to TDPRS's proposed temporary orders that E.D.L.
should remain in foster care.
Appellant filed a motion to dismiss for
lack of subject matter jurisdiction on March 4, 2002 raising the same argument
she does now concerning the fourteen-day time frame under section 262.201. The
trial court conducted a hearing on Appellant's motion and denied her requested
relief.
B. Statutory Construction
We are faced with an issue of first
impression in Texas regarding this question of statutory interpretation. See
Wichita County v. Hart, 917 S.W.2d 779, 783 (Tex. 1996) ("If a
statute's wording does not indicate whether the legislature intended to make a
provision jurisdictional, we must resolve the issue by applying the rules of
statutory construction."); State v. Gracia, 56 S.W.3d 196, 199
(Tex. App.--Fort Worth 2001, no pet.) (same). In determining whether the
Legislature intended a provision to be jurisdictional, courts have historically
looked to two factors: "(1) the presence or absence of specific
consequences for noncompliance and (2) the consequences that result from each
possible interpretation." Helena Chem. Co. v. Wilkins, 47 S.W.3d
486, 495 (Tex. 2001) (citations omitted).
We are to strictly construe statutes
concerning involuntary termination of parental rights in favor of parents. Holick
v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re A.V., 849 S.W.2d
393, 400 (Tex. App.--Fort Worth 1993, no writ). Our primary objective in
construing a statute, however, is to determine and give effect to the
legislature's intent. Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.
1999). In determining the legislature's intent, we first look to the statute's
plain and common meaning and presume that the legislature intended the plain
meaning of its words. Fleming Foods v. Rylander, 6 S.W.3d 278, 282
(Tex. 1999). Further, in construing a statute, whether or not the statute is
considered ambiguous on its face, we may consider among other matters the: (1)
object sought to be attained; (2) circumstances under which the statute was
enacted; (3) legislative history; (4) common law or former statutory provisions,
including laws on the same or similar subjects; (5) consequences of a particular
construction; (6) administrative construction of the statute; and (7) title
(caption), preamble, and emergency provision. Tex. Gov't Code Ann. § 311.023
(Vernon 1998); see also Brown v. Owens, 674 S.W.2d 748, 750
(Tex. 1984) (In determining the legislature's intent, "we must consider the
entire Act, its nature and object, and the consequences which follow from each
construction.").
We also determine legislative intent from
the entire act and not just from isolated portions. State Dep't of Highways
& Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). We must
presume that the legislature chose its words carefully, recognizing that every
word in a statute was included for some purpose and that every word excluded was
omitted for a purpose. In re M.J.M.L., 31 S.W.3d 347, 354 (Tex.
App.--San Antonio 2000, pet. denied); Renaissance Park v. Davila, 27
S.W.3d 252, 256 (Tex. App.--Austin 2000, no pet.). Likewise, we presume the
legislature intended a just and reasonable result in enacting a statute. Tex.
Gov't Code Ann. § 311.021(3) (Vernon 1998). We will not construe a statute in a
manner that will lead to a foolish or absurd result when another alternative is
available. S.W. Bank v. Info. Support Concepts, Inc., 85 S.W.3d 462,
464 (Tex. App.--Fort Worth 2002, pet. filed).
C. Application of Law to
the Facts
Appellant focuses on the language in
section 262.201(a), which states that the full adversary hearing "shall be
held not later than the 14th day after the child was taken into
possession." Tex. Fam. Code Ann. § 262.201(a). Appellant argues that once
TDPRS initially takes possession of a child, the trial court has subject matter
jurisdiction over the case only for fourteen days until the adversary hearing.
Appellant contends that TDPRS must meet its burden of proof under section
262.201(b) at the hearing; otherwise, the court loses jurisdiction over the
lawsuit. Appellant argues that because TDPRS did not meet its burden of proof at
the first scheduled adversary hearing-because the hearing was postponed-the
court lost jurisdiction over the lawsuit and all subsequent orders were void.
Appellant further argues that the language of the statute concerning the
fourteen-day time frame is mandatory and that subsection (f) of section 262.201
provides a mechanism for dealing with a parent whose location is unknown.(3)
By Appellant's reasoning, because the
court did not conduct the adversary hearing on December 12, 2000, TDPRS failed
to meet its burden of proof, the trial court lost jurisdiction over the case,
and the case was therefore dismissed by operation of law, which should have
allowed Appellant to regain possession of E.D.L. Appellant voices her concern
that TDPRS's position in this case is ripe for abuse. She argues that, with
wrong motives, TDPRS could unilaterally postpone or otherwise delay the
adversary hearing by purposefully being unsuccessful in serving a parent and
then by claiming that the hearing was not needed as a result.
(4) We are not persuaded by Appellant's position.
The code construction act defines
"shall" as follows: "'Shall'" imposes a duty." Tex.
Gov't Code Ann. § 311.016(2) (Vernon 1998). Courts generally construe
"shall" as mandatory; however, it "may be and frequently is held
to be merely directory." Chisholm v. Bewley Mills, 155 Tex. 400,
287 S.W.2d 943, 945 (Tex. 1956); see also Albertson's, Inc. v. Sinclair,
984 S.W.2d 958, 961 (Tex. 1999). The specific issue with which we are
confronted, however, is not which of these two labels, "mandatory" or
"directory," we should affix to the fourteen-day hearing provision in
section 262.201(a). See State v. $435,000, 842 S.W.2d 642, 644
(Tex. 1992). Rather, as the supreme court has stated, "More precisely the
issue is not whether 'shall' is mandatory, but what consequences follow a
failure to comply." Id.(5)
Section 262.201 does not contain specific
consequences for noncompliance with the fourteen-day limitation. See
Tex. Fam. Code Ann. § 262.201; Helena Chem. Co., 47 S.W.3d at 495.
Despite language stating that the hearing "shall be held not later than the
14th day after the date the child was taken into possession,"
the statute has no corresponding provision dictating dismissal for
noncompliance. Tex. Fam. Code Ann. § 262.201(a); see also Helena Chem. Co.,
47 S.W.3d at 495 (citing $435,000, 842 S.W.2d at 644 ("If the
Legislature had intended dismissal to be the consequence of a failure to hear a
forfeiture case within the prescribed period, it could easily have said
so.")); Sinclair, 984 S.W.2d at 961 ("[J]ust because a
statutory requirement is mandatory does not mean that compliance with it is
jurisdictional.").
In support of its position, TDPRS directs
us to several cases in which courts have determined that compliance with
mandatory statutory language is not jurisdictional. See $435,000, 842
S.W.2d at 644; Fountain v. Knebel, 45 S.W.3d 736, 739 (Tex.
App.--Dallas 2001, no pet.); Honts v. Shaw, 975 S.W.2d 816, 820 (Tex.
App.--Austin 1998, no pet.); Ex parte Brown, 875 S.W.2d 756, 760 (Tex.
App.--Fort Worth 1994, orig. proceeding).
In $435,000, the supreme court
analyzed a statute that "'a time for hearing on forfeiture shall be set
within 30 days' of the filing of [a verified] answer." 842 S.W.2d at 642.
The court stated, "The purpose of the provision appears to have been to
ensure a prompt resolution of forfeiture actions," but concluded that
dismissal was not the intended consequence of a failure to hear a forfeiture
case within the prescribed period. Id. at 643. Instead, the court
stated that while "shall" in the context of the statute was
"plainly mandatory," the remedy for noncompliance with the provision
"afford[ed] the parties the right [to seek mandamus relief] to compel the
trial court to hear the case promptly." Id. at 644.
Similarly, Fountain also
addressed a timing provision in the family code relating to a hearing following
the issuance of an associate judges's ruling. 45 S.W.3d at 739. The court
interpreted section 201.015(f) of the family code, which states, "The
referring court . . . shall hold a hearing on all appeals not later than the
30th day after the date on which the initial appeal was filed with the referring
court." Tex. Fam. Code Ann. § 201.015(f) (Vernon 2002); Fountain,
45 S.W.3d at 739. Under the court's rationale, "the referring court does
not lose jurisdiction if it fails to hear an appeal within thirty days after the
appeal is filed. . . . Rather, the thirty-day provision affords a party the
right to compel the district court to hear the case promptly." Fountain,
45 S.W.3d at 739.
Likewise, in Brown, we
interpreted the predecessor to section 201.015(f), which was formerly found in
section 54.012(h) of the government code.(6) 875
S.W.2d at 760. We stated that the purpose of this statutory deadline was
"to require the prompt resolution of appeals from masters' rulings"
and held that, while the word "shall," used in the statute was
mandatory, it did not automatically follow that a district court lost
jurisdiction if the parties failed to comply with the timing provision. Id.
Instead, Brown held that "the mandatory provision affords the
parties the right to compel the district court to hear the case promptly, . . .
[and] [i]f the district court refuses, [the statute] provides a basis for relief
by mandamus, but not for dismissal for want of jurisdiction." Id.
The Austin Court of Appeals also followed $435,000
when interpreting section 232.012(d) of the election code, which states,
"The judge shall set the contest for trial for a date not later than the
fifth day after the date by which the contestee must answer." Tex. Elec.
Code Ann. § 232.012(d) (Vernon 1986); Honts, 975 S.W.2d at 820. The Honts
court concluded that this timing provision "compel[led] the trial court to
set the election contest for trial within a specific period of time." 975
S.W.2d at 820. Because the court reasoned, however, that the purpose of the
statute would not be served if noncompliance resulted in dismissal of an
election contest, the court held that the failure to comply with the statute did
not deprive the trial court of subject matter jurisdiction. Id.
We are persuaded that the same reasoning
in $435,000, Fountain, Honts, and Brown
applies to the language in section 262.201(a) of the family code. We agree with
TDPRS that the purpose of section 262 is to afford parents the opportunity to
challenge TDPRS's right to retain any children whom TDPRS has taken into custody
under an ex parte order from the court. See Tex. Fam. Code Ann. §
262.201(c). A full adversary hearing thereby requires that the court enter
temporary orders governing any children taken into custody, pending a full
adjudication of parental rights at the termination hearing. See id. §
262. As one commentary has noted:

       
  The term "full adversary hearing" terminology appears nowhere else
  in the Family Code, nor anywhere else in Texas law for that matter. The term
  appears to be intended to contrast the ex parte hearings described earlier in
  this chapter. Practitioners sometimes refer to these as the "fourteen
  day" hearing, as it is mandated to be held within 14 days after the child
  is taken into possession. Sometimes, the mandate is delayed and the full
  adversary hearing must be continued thanks to difficulties with achieving
  service on respondent parents or the natural delay caused by the appointment
  of counsel for indigent parents.

John T. Sampson & Harry L. Tindall,
Texas Family Code Ann. § 262.201 cmt. (12th ed. 2002) (emphasis
added).
The fourteen-day limitation affords
parents a prompt, orderly procedure by which they can present their case and
hold TDPRS to its evidentiary burden. See Chisholm, 287 S.W.2d
at 945. In the event a full adversary hearing is not held within fourteen days,
section 262.201 provides both the parents and TDPRS the right to compel the
trial court by mandamus to conduct the adversary hearing promptly. See
$435,000, 842 S.W.2d at 644; Fountain, 45 S.W.3d at 739; Honts,
975 S.W.2d at 820; Brown, 875 S.W.2d at 760.
We hold that the trial court did not err
in denying Appellant's motion to dismiss because the fourteen-day requirement is
not jurisdictional. Accordingly, we overrule Appellant's first issue.
IV. SUFFICIENCY OF THE
EVIDENCE
In her second and third issues, Appellant
complains that the trial court erred in terminating her parental rights because
the evidence was legally and factually insufficient to establish that
termination of the parent-child relationship was in the best interest of E.D.L.
We disagree.
A. Standards Applicable in
Termination Proceedings
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).
Termination may not be based solely on the best interest of the child as
determined by the trier of fact; rather, both elements must be established. Tex.
Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
Termination of parental rights must be
established by clear and convincing evidence. Tex. Fam. Code Ann. § 161.206(a)
(Vernon 2002). The higher burden of proof in termination proceedings alters the
appellate standards of review for both legal and factual sufficiency challenges.
In re J.F.C., 96 S.W.3d 256, 264-65 (Tex. 2002); In re C.H.,
89 S.W.3d 17, 25 (Tex. 2002). With respect to a legal sufficiency issue, we must
"look at all the evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true." In re J.F.C., 96 S.W.3d at
266. In determining a factual sufficiency issue, our inquiry is whether, based
on the entire record, a fact finder could reasonably form a firm conviction or
belief that the parent violated one of the provisions of section 161.001 and
that the termination of the parent's parental rights would be in the best
interest of the child. In re C.H., 89 S.W.3d at 25.
B. Best Interest of the
Child
Appellant does not challenge the legal or
factual sufficiency of the five grounds for termination, which the trial court
enumerated in the termination decree. We, therefore, are only reviewing the
legal and factual sufficiency of the evidence supporting the court's finding
that termination of Appellant's parental rights was in E.D.L.'s best interest. See
TEX. FAM.
CODE ANN.
§ 161.001; Richardson, 677 S.W.2d at 499.
Factors we consider in deciding whether
termination is in a child's best interest include: the desires of the child; the
present and future physical and emotional needs of the child; the present and
future emotional and physical danger to the child; the parental abilities of the
person seeking custody; programs available to assist those persons in promoting
the best interest of the child; plans for the child by those individuals or by
the agency seeking custody; the acts or omissions of the parent that may
indicate that the existing parent-child relationship is not appropriate; and any
excuse for the acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976); In re D.T., 34 S.W.3d at 641. Proof of
acts or omissions under section 161.001(1) may also be probative of whether
termination is in the child's best interest. In re C.H., 89 S.W.3d at
27.
C. Application of Law to
the Facts
In addition to the above mentioned conduct
and events concerning Appellant and E.D.L., the evidence in the record shows:
During trial, Appellant admitted to having a drug problem and stated that she
struggles with sobriety every day. She admitted to having been a heavy cocaine
user and to smoking marijuana every day, but she also claimed that she never did
drugs in front of her daughter. Further, Appellant admitted to leaving E.D.L.
with people whom she knew were drug users, but she stated that she trusted them
and knew they would not hurt E.D.L. Appellant testified that while she talked on
the phone with people whom she knew used drugs, she did not see them anymore.
Appellant also testified that she was not presently in any sort of treatment or
counseling programs for her drug addiction, but that she was looking for a
Narcotics Anonymous group.
At the time of Appellant's trial,
Appellant had moved to Arkansas to live with her mother to lead a more stable
life. She testified that since moving to Arkansas, she had quit smoking
marijuana and had been sober for two months. When questioned about whether she
thought she should regain custody of E.D.L. based on her two-month period of
sobriety, Appellant responded: "No, I don't." TDPRS then asked,
"You don't think you want custody?" Appellant replied, "I -- I do
not -- I'm not stable. I cannot have -- I cannot raise my daughter. Not right
now." Appellant later testified, "I want what's best for my daughter,
which is not with me." When asked why she appeared for trial, Appellant
testified: "They sent me papers to come to court. From Arkansas. Telling me
I'm going to go to jail if I don't show up for court. I'm here because I have to
be here." Appellant admitted that she could not presently take care of her
daughter, but that she wanted to be able to be in contact with E.D.L. in the
future.
TDPRS also offered the testimony of
numerous workers at Child Protective Services ("CPS"), who were
involved with Appellant and E.D.L. Toni Loving, a CPS caseworker, testified
that, upon TDPRS's recommendation, the trial court ordered Appellant to submit
to random drug tests, attend counseling, complete parenting classes, complete
her GED, attend Narcotics Anonymous meetings, obtain employment, and allow TDPRS
to have announced and unannounced home visits. Loving stated that Appellant did
attend and complete parenting classes. Loving also testified, however, that
Appellant attended less than half of the counseling sessions set up by CPS and
characterized her compliance with TDPRS's service plan as minimal as it
pertained to employment, drug testing, and counseling.
June Davison, who worked with Appellant
after Loving, testified that while Appellant made efforts to comply with TDPRS's
service plan, they were not substantial efforts. Davison also testified that
Appellant had failed to submit to drug testing and that she had moved at least
six times between October 2001 and May 2002. According to Davison, when
Appellant left Texas for Arkansas, she did not inform CPS. Davison did state
that Appellant had obtained her GED.
Another CPS worker, Melynn Conway,
testified that, in the event Appellant's parental rights to E.D.L. were
terminated, TDPRS intended either to unite E.D.L. with her natural father or to
find a family who was willing to adopt her. Additionally, CPS worker Marilyn
Morgan testified that E.D.L. and her father were bonding during visits arranged
by TDPRS. In contrast, Morgan testified that while the bond between Appellant
and E.D.L. used to be strong, "E.D.L. no longer [asked] about her
mother," and she testified that she thought E.D.L. saw Appellant "more
as a big sister or friend; not really as a mother."
Loving, Davison, Conway, and Morgan all
testified that termination was in the best interest of E.D.L. During closing
arguments, E.D.L.'s guardian ad litem suggested that the court might be able to
place appropriate limitations and restrictions on Appellant, without terminating
her parental rights, but he also stated that he did not have any concrete
recommendations for the court.
We have reviewed the record extensively,
and under the applicable standards of review, we hold that the evidence was both
legally and factually sufficient to constitute clear and convincing evidence to
support the trial court's finding that termination was in E.D.L.'s best
interest. See In re J.F.C., 96 S.W.3d at 265-66; In re C.H.,
89 S.W.3d 25-26. Accordingly, we overrule Appellant's second and third issues.
V. CONCLUSION
Having overruled all of Appellant's
issues, we affirm the trial court's judgment.
 
                                                           ANNE
GARDNER
                                                           JUSTICE
 
PANEL B: LIVINGSTON, GARDNER, and WALKER,
JJ.
 
DELIVERED: April 10, 2003

1. Section 161.001(1) provides, in pertinent part:

       
  The court may order termination of the parent-child relationship if the court
  finds by clear and convincing evidence:

(1) that the parent has:
       
    . . . .
    (D) knowingly
    placed or knowingly allowed the child to remain in conditions or
    surroundings which endanger the physical or emotional well-being of the
    child;
       
    (E) engaged in conduct or knowingly placed the child with persons who
    engaged in conduct which endangers the physical or emotional well-being of
    the child;
       
    . . . .
       
    (K) executed before or after the suit is filed an unrevoked or irrevocable
    affidavit of relinquishment of parental rights as provided by this chapter;
       
    . . . .
       
    (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;

       
    (O) failed to comply with the provisions of a court order that specifically
    established the actions necessary for the parent to obtain the return of the
    child who has been in the permanent or temporary managing conservatorship of
    the Department of Protective and Regulatory Services for not less than nine
    months as a result of the child's removal from the parent under Chapter 262
    for the abuse or neglect of the child; [or]
       
    (P) used a controlled substance, as defined by Chapter 481, Health and
    Safety Code, in a manner that endangered the health or safety of the child,
    and:

       
      (i) failed to complete a court-ordered substance abuse treatment program;
      or
       
      (ii) after completion of a court-ordered substance abuse treatment
      program, continued to abuse a controlled substance; [and]

(2) that termination is in the best
    interest of the child.


Id.
2. We note that throughout the time TDPRS was trying to
serve Appellant, she contacted TDPRS personnel on several occasions, but she
would not tell them where she was living.
3. Section 262.201(f) of the family code provides:

       
  When citation by publication is needed for a parent or alleged or probable
  father in an action brought under this chapter because the location of the
  parent, alleged father, or probable father is unknown, the court may render a
  temporary order without delay at any time after the filing of the action
  without regard to whether notice of the citation by publication has been
  published.

Id.
4. Appellant does not argue, however, that TDPRS acted
with wrong motives in this case.
5. TDPRS cites case law in which courts have applied Chisholm
and construed statutory timing provisions as being directory in nature. See,
e.g., Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d
307, 311 (Tex. 1976); Tex. Dep't of Pub. Safety v. Whitefield, 59
S.W.3d 294, 296 (Tex. App.--Waco 2001, no pet.); Tex. Dep't of Pub. Safety
v. Gratzer, 982 S.W.2d 88, 91 (Tex. App.--Houston [1st Dist.]
1998, no pet.); see also Helena Chem. Co., 47 S.W.3d
at 498 (holding court had jurisdiction over claims under the Seed Arbitration
Act because, while the Act's timing requirement was not mandatory, submission to
the Act was mandatory, absent waiver by the seller). Perhaps, as the supreme
court has suggested, courts have interpreted "shall" to be directory
to avoid the consequences of dismissal. See $435,000, 842 S.W.2d at
644. Rather than engaging in this seeming exercise in semantics, we agree with $435,000
that our focus should be on the consequences that follow noncompliance. See
id.
6. See Act of Apr. 30, 1987, 70th
Leg., R.S., ch. 148, § 2.74(a), 1987 Tex. Gen. Laws 534, 567, repealed by
Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen.
Laws 113, 241 (current version at Tex. Fam. Code Ann. § 201.015(f)).
