









Motion for Rehearing overruled








 
Motion for Rehearing overruled. Opinion
of January 23, 2003 withdrawn.
Affirmed and Opinion on Motion for Rehearing and
Concurring Opinion filed 
April 17, 2003.





 





In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-02-00126-CV
____________
 
IN THE INTEREST OF U.P., A CHILD 
 
 

 
On Appeal from the 328th District Court
Fort Bend County, Texas
Trial Court Cause No. 115,213
 

 
O P I N I O N   ON   M O T I O N  
F O R   R
E H E A R I N G
We withdraw our opinion issued January 23, 2003, substitute
the following opinion in its place, and overrule appellant=s motion for rehearing.
Following a bench trial, appellant=s parental rights over daughter U.P.
were terminated.  On appeal, appellant
argues improper termination.  Because the
record supports the findings that termination is in the best interest of the
child and appellant committed acts listed in the Family Code as grounds for
termination, we affirm.




PROCEDURAL BACKGROUND 
On September 1, 2000, the Texas Department of Protective and
Regulatory Services (“TDPRS”) filed suit to terminate appellant=s parental rights.  The one-year dismissal date for this suit was
September 3, 2001.  On June 21, 2001, on
a motion by the TDPRS, the trial court extended the dismissal date to February
25, 2002, pursuant to ' 263.401 of the Texas Family Code.  
On January 2, 2002, U.P.=s foster parents filed a petition to
intervene seeking to adopt U.P.  After a
bench trial, the trial court entered a written order terminating appellant=s parental rights.  Appellant=s motion for a new trial was
overruled.  Appellant made a timely
request for findings of fact and conclusions of law, which the trial court
made, and gave timely notice of appeal.[1]  
FACTUAL BACKGROUND
TDPRS took U.P. into protective custody a week after she was
born on August 30, 2000, addicted to cocaine and barbiturates.  During her short life, the child has suffered
from numerous medical problems, including intrauterine growth retardation, an
umbilical hernia, sleep apnea or Sudden Infant Death Syndrome (SIDS), reflux,
reactive airway disease, a crossed eye, and severe developmental delays.  She was premature at birth and had below
average birth weight.  She has undergone
surgery without the benefit of anesthetics because of her cocaine addiction.
She currently resides with foster parents with expertise in caring for children
with special needs. 




U.P. was homebound for the first twelve months of her
life.  She was on a SIDS monitor for
seven months, continues to require frequent medications, and has severe
digestive problems.  At nine months of
age, she underwent surgery for an umbilical hernia.  The surgery was unsuccessful; the child will
undergo a second operation as soon as medically practicable.   At the time of trial, U.P. was 16 months old
and required (1) feedings every two hours to reduce regurgitation due to
reflux, (2) medication to keep her lungs clear, and (3) constant comforting to
enable her to sleep.  She awakens almost
every hour throughout a typical night and must be held in order to fall back
asleep.  U.P.=s pediatrician testified that U.P. is
likely to suffer from developmental delays, emotional instability, and
attention deficit disorder (ADD) for life. 

Prior to U.P.=s birth, appellant and U.P.=s mother used illegal drugs
together.  Although appellant claims he
did not know U.P.=s mother could get pregnant and denies ever having given the
mother crack cocaine after learning of her pregnancy, evidence suggests he
provided the mother with drugs even after knowing of her pregnancy.  
It is uncontroverted that appellant supplied her with illegal
drugs before being aware of her pregnancy and that he knew she used illegal
drugs while pregnant.  Although appellant
states he attempted to stop U.P.=s mother from using cocaine during
her pregnancy, he never called the police, never sought to have the mother
admitted into drug rehabilitation, and never reported the drug abuse to Child
Protective Services (CPS).    
Appellant admits to his own personal drug abuse before and
after U.P.=s mother became pregnant.  Appellant agrees with expert testimony that
U.P.=s physical disabilities and difficulties are directly related
to her having been subjected to drug abuse in utero.  Appellant agrees that the actions of U.P.=s mother, combined with his own inaction, placed the child in
grave danger.  
On September 15, 2000, two weeks after U. P.=s birth, appellant was arrested for,
and ultimately convicted of, the manufacture and delivery of cocaine.  He served a one-year prison sentence and was
released on September 14, 2001.  This was
appellant=s seventh conviction since 1970.  His 30-year criminal history includes felony
theft, armed robbery and credit card abuse. 
His sentences have ranged from one to eighteen years in length.  At the time of trial, appellant was on parole
for the manufacture and delivery of a controlled substance. He has three parole
violations. 




Although appellant called family members the day of U.P.=s birth to announce he had a
daughter, paternity of U.P. was not firmly established until February 1, 2001,
when appellant was in prison.  In
addition to U.P., appellant is the father of three sons, two of whom have been
incarcerated following conviction for narcotics-related crimes.  Although appellant admits he “wasn=t around” much while his sons were
growing up, he was around enough in 1994 to be charged with “physical neglect”
and “neglectful supervision” of two of the sons. Though never proved, the
charges included offering his sons crack cocaine and failing to provide
adequate sleeping arrangements and food. 

Appellant has repeatedly been notified via court order and
receipt of TDPRS petitions that he might lose parental rights if he failed to
comply with court-ordered counseling and evaluations.  As early as September, 2000, he was ordered
to undergo paternity testing, psychological testing, counseling, drug abuse
evaluation/assessment, and parenting classes. 
He was also told at that time that he would have to pay child support if
it was determined that he was U.P.=s father. 
Appellant=s compliance with the trial court=s orders has been minimal. He
submitted to paternity testing in the months immediately following U.P.=s birth, attended voluntary drug
abuse classes while in prison, and underwent psychological evaluation, drug and
alcohol assessment, and parenting classes after his release, but it was several
weeks after his prison release before appellant began complying with the court
order.  He did not appear for
psychological evaluation or counseling sessions until after the court-ordered
dates, and, at the time of trial, had not completed all required services. 




Appellant=s contact with U.P. has been minimal.  Appellant does not correctly state her
birthday.  He has not consulted with a
doctor about her medical condition.  He
has not demonstrated concern or affection for her by sending her cards or
letters or by making attempts to see her at holidays, nor has he made inquiries
about visiting her when she was ill. 
Despite the child=s poor health, none of appellant=s requests for visitation has ever been
denied by CPS or the foster parentsCand despite a court order allowing
him weekly visitation, appellant has seen his daughter on only four occasions:
once in the hospital the day following her birth and three times during the
four-month period following his release from prison in September, 2001.  One visit was in October, 2001, and two were
in November, 2001.  He made no visits or
attempts to see his daughter in December, 2001, or January, 2002.
Appellant acknowledges that he cannot personally care for his
child, provide the 24-hour-per-day supervision required for her care, or take
time off to visit doctors or obtain U.P.=s necessary medical treatment. He has
a new common-law wife who neither wants the child nor has an interest in caring
for her.  He admits to a criminal history
that raises credibility issues as to his fitness as a parent.  He has no health insurance and paid no child
support while incarcerated.  
The trial court ordered appellant to send $10.00 a month in
child support to U.P. while in prison. 
Though he earned $50.00 a month in commissary money while incarcerated,
he did not comply with the order.  He
states the reason for his failure to pay child support was a misunderstanding
of the order; he thought he was not required to make payments until his release
and subsequent employment.  Nonetheless,
appellant acknowledges he could have made arrangements to make the payments had
he understood the order and that being in jail was no excuse for failure to
provide financially for U.P.  
At the time of trial, appellant was working full-time and
earning approximately $1,000 per month. 
After his release from prison, appellant paid $30.00 in child support on
November 29, 2001, as a three-month advance payment.  He has since made no other child support
payments and has made no attempt to pay past child support. His last known
illegal drug use was September 15, 2000, the day of his arrest.  Appellant states he wants to be in the child=s life, wants to see her, and has
genuine concern for her. 




Testimony indicates that it has always been appellant=s intention that U.P. be placed with
appellant=s mother or sister.  Neither appellant=s mother nor his sister has filed a
petition in intervention or a petition to adopt U.P., however, and neither is a
party to this suit.  Neither one of these
women has expertise in caring for a child with severe medical problems and,
after home studies performed by CPS, neither one is deemed a suitable CPS
placement option for U.P.  Both appellant=s mother and sister indicate that, if
given custody of U.P., they intend to turn the child over to appellant as soon
as he is able to care for her.
Appellant=s mother is 74 years old and in poor health.  She has seen U.P. once.  Appellant=s sister is 43 years old and is a
single mother of four.  She has visited
or attempted to visit with U.P. four times and, during each encounter,
confrontation has ensued with either U.P.=s foster mother or a CPS
official.  Evidence of her parenting
skills raise credibility issues regarding her care-giving effectiveness: she
helped raise two of appellant=s other childrenCthe two who have criminal
histories.  When asked how she plans to
provide for U.P.=s special needs, she responds that
things will “work out on their own.”
U.P.=s foster parents are the only parents
the child has ever known.  They took over
U.P.=s care when she was five days old and carry U.P. on their
health insurance.  Married 21 years, U.P.=s foster parents have experience in caring for and adopting
babies born addicted to cocaine.  U.P.=s foster mother has a master=s degree in education and has taken
child development classes.  While in the
care of her foster parents, U.P. has received medical care from a pediatrician,
ophthalmologist, pulmonologist, nutritionist, and physical therapist.  A nebulizer has been provided to help deal
with her reactive airway disease.  In
addition, U.P. has been enrolled in a special school that provides a
stimulating educational environment. 
Evidence indicates U.P. has bonded with her foster parents and the
couple intends to make her a permanent part of their family.




At trial, appellant readily admitted all evidence related to
his criminal history and no evidence controverted his record.  In addition, no expert testified that
placement with appellant was in the best interest of the child. See Tex. Family Code Ann. ' 161.001(2) (Vernon 2000).  A CPS caseworker and Court-Appointed Special
Advocate (CASA) volunteer, on the other hand, recommended that U.P. be made
available for adoption and placed with her foster parents.  U.P.=s pediatrician stated that the foster
family gives “excellent” care to U.P. and that the Abest environment@ for the child is with her foster
family.  
ISSUES ON APPEAL
Appellant asserts six points of error challenging the order
terminating his parental rights.  In his
first three points, he argues there is no evidence or factually insufficient
evidence to establish by clear and convincing evidence that he (1) voluntarily
left U.P. alone or in the possession of another without providing adequate
support for her and remained away for a period of at least six months; (2)
knowingly placed or knowingly allowed U.P. to remain in conditions or
surroundings that endangered her physical or emotional well-being; or (3)
engaged in conduct or knowingly placed U.P. with persons who engaged in conduct
that endangered her physical or emotional well-being.  
In point of error four, appellant contends there is no
evidence or factually insufficient evidence to establish by clear and
convincing evidence that termination of U.P.=s relationship with appellant is in
her best interest.  In points of error
five and six, appellant asserts the Family Code time limits for disposition of
termination cases are unconstitutional as applied to him, and the trial court
erred in denying appellant the opportunity to make final argument.
We begin by addressing appellant=s points three and four, challenging
the sufficiency of the evidence to support the trial court=s findings of conduct under the Texas
Family Code ' 161.001(1) and best interest of the
child under ' 161.001(2).
LEGAL AND FACTUAL INSUFFICIENCY
A.        Standard
of Review




The burden of proof at trial in parental termination cases is
by clear and convincing evidence.  Tex. Fam. Code ' 161.001 (Vernon 2002); In the Interest of
J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002).  “Clear and convincing evidence” means 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.  In re.
C.H., 89 S.W.3d 17, 25B26 (Tex. 2002).
When reviewing a “no evidence” or legal sufficiency of the
evidence point, therefore, we 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 the Interest of
J.F.C., 96 S.W.3d at 266.  If,
after conducting our review of the record evidence, we determine that no
reasonable factfinder could form a firm belief or conviction that the matter
that must be proven is true, then we conclude that the evidence is legally
sufficient.  Id.
When reviewing a challenge to the factual sufficiency of the
evidence, we give due consideration to evidence that the factfinder could
reasonably have found to be clear and convincing.  Id.; In re.
C.H., 89 S.W.3d at 25B26. 
We determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State=s allegations.  In re.
J.F.C., 96 S.W.3d at 266.  We consider whether disputed evidence is such
that a reasonable factfinder could not have resolved that disputed evidence in
favor of its finding.  Id.  If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction, then the evidence is factually
insufficient.  Id. 
The natural right that exists between parents and their
children is one of constitutional dimension. 
In the Interest of J.W.T., 872 S.W.2d 189, 194B95 (Tex. 1994).  A parent=s right to “the companionship, care,
custody and management” of his or her children is a constitutional interest “far
more precious than any property right.”  Santosky v. Kramer, 455 U.S. 745, 758B59 (1982) (quoting Stanley v. IL,
405 U.S. 645, 651 (1972)).  Therefore, in
a case terminating parental rights, proceedings should be strictly scrutinized
and the involuntary termination statutes strictly construed in favor of the
parent.  Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985).




B.  Discussion 

In Texas, to terminate a parent-child relationship, a trial
court must find by clear and convincing evidence that (1) termination is in the
best interest of the child, and (2) the parent committed one or more of the
acts specifically named in the Texas Family Code as grounds for termination. Tex. Fam. Code Ann. ' 161.001 (Vernon 2002).  Richardson v. Green,
677 S.W.2d 497, 499 (Tex. 1984).[2]  Proof of one element does not relieve
petitioner from establishing the other.  Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). It
is inconsequential that the actions occurred before or after birth.  In re.
S.F., 32 S.W.3d 318, 322 (Tex. App.CSan Antonio 2000, no pet.); Avery
v. State, 963 S.W.2d 550, 553 (Tex. App.CHouston [1st Dist.] 1997, no
writ).  
In this case, the trial court found three grounds under ' 161.001 for supporting
termination.  First, it found appellant
had voluntarily left the child alone or in the possession of another without
providing adequate support and had remained away for a period of at least six
months; second, it found appellant had engaged in conduct, or knowingly placed
U.P. with persons who engaged in conduct, that endangered U.P.=s 
physical or emotional well-being; and third, it found appellant
knowingly placed or knowingly allowed U.P. to remain in conditions or
surroundings that endangered her physical or emotional well-being.  See Tex.
Fam. Code Ann. '' 161.001(1)(C), (D), and (E) (Vernon
2002).  The court also found termination
was in the best interest of the child.  Id. at '
161.001(2).[3]





1.         Child=s Best Interest 
In his fourth point, appellant argues the evidence is legally
and factually insufficient to satisfy the requirement of '161.001(2) that clear and convincing
evidence supports the finding that termination of his relationship with U.P. is
in her best interest.  He asserts there
is an alternative to termination mandated by the evidenceCnamely, to appoint TDPRS or the
foster parents as sole managing conservator and appellant as a possessory
conservator with court-set possession and access rights.
There is a strong presumption that the best interest of a
child is served by keeping the child with the natural parent. Tex. Fam. Code Ann. '' 153.131(b), 153.191, and 153.252 (Vernon 1996); Landry
v. Nauls, 831 S.W.2d 603, 604B05 (Tex. App. B Houston [14th Dist.] 1992, no writ).  It is the burden of TDPRS to rebut this
presumption. Hall v. Harris County Child Welfare Unit, 533 S.W. 2d 121,
122B23 (Tex. App.CHouston [14th Dist.] 1976, no
writ).  In order to rebut this
presumption, there must be clear and convincing evidence of the natural parents= present unfitness. 
Id. at 123.
To overcome the presumption that the best interest of a child
is served by keeping the child with its natural parent, the Texas Supreme Court
has examined several factors, namely: (1) the desires of the child; (2) the
present and future physical and emotional needs of the child; (3) the present
and future emotional and physical danger to the child; (4) the parental
abilities of the person seeking custody; (5) the programs available to assist
those persons seeking custody in promoting the best interest of the child; (6)
plans for the child by the individuals or agency seeking custody; (7) the
stability of the home or proposed placement; (8) acts or omissions of the
parent that indicate the existing parent-child relationship is not appropriate;
and (9) any excuse for the parent=s acts or omissions.  Holley, 544 S.W.2d
at 372.  This list is not
exhaustive, nor is evidence required on all nine factors for the court=s finding. Id.  




To determine the legal and factual sufficiency of the
evidence supporting termination as it relates to the best interest of the
child, we examine the evidence in light of the Holley factors: 
(1)       Desires
of the child.  Because U.P. is a
toddler and unable to articulate her wishes, we cannot with certainty determine
her desires.  However, testimony
indicates that U.P. has been well-cared for by her foster family, that she has
bonded with her foster family, and that she has spent minimal time in the
presence of appellant and his family. 
While the foster parents seek permanent adoption, appellant seeks
temporary placement with his mother or sister. 
Thus, evidence supports the trial court=s best interest finding.   
(2)       Present
and future physical and emotional needs of the child.  Children need permanency and security.  It is uncontroverted that U.P. has serious
medical problems resulting from her cocaine addiction at birth.  She follows a strict diet, is on medication
to keep her lungs clear, and has difficulty sleeping.  Her present and future needs are many and
weigh heavily in favor of the court=s finding.  See e.g. In the Interest of J.N.R., 982
S.W.2d 137, 143B44 (Tex. App.CHouston [1st Dist.] 1998, no pet.) (finding under a different standard of review that evidence
was sufficient to establish termination of parental rights was in the best
interest of the child where child had a number of problems, including ADD,
sleepwalking, and bedwettingCrequiring constant adult super-visionCand father would be in and out of
child=s life due to arrests). 




(3)       Present
and future emotional and physical danger to the child.  Appellant acknowledges both his own and U.P.=s mother=s drug abuse endangered his child.  He has been convicted of armed burglary, a
violent crime, and has been charged with “neglectful supervision” of two other
children.  The evidence supports the
trial court=s finding that termination is in the
best interest of the child.  
(4)       Parental
abilities of the person(s) seeking custody.  It is uncontroverted that appellant is unable
to provide a safe and secure home for his child.  Home studies by CASA and CPS representatives
indicate placement with appellant=s mother or sister to be
inappropriate.  In addition, neither
appellant nor his mother or sister possess expertise in caring for a child with
U.P.=s special needs and evidence suggests
appellant and his mother have difficulty following directions.  Evidence pertaining to appellant=s parental abilities thus favors the
trial court=s finding.
(5)       Available
assistance programs.   Appellant
is currently attending parenting classes and counseling.  His mother and sister are not.  While neither appellant nor his mother or
sister have discussed how they intend to care for U.P.=s special medical needs, U.P.=s foster parents demonstrate they can
provide U.P.=s necessary care.  This evidence supports the trial court=s best interest finding.
(6)       Plans
for the child by those individuals or by the agency seeking custody.  Neither appellant nor his sister or mother
has outlined permanent plans for the child=s future other than an intention to
reunite U.P. with her father.  Both TDPRS
and CASA recommend the foster family permanently adopt U.P., as the foster
parents have expressed a desire to do in their intervention in this case.  This evidence supports the trial court=s best interest finding.  
(7)       Stability
of home or proposed placement. 
Appellant acknowledges he and his new common-law wife cannot yet provide
a permanent home for U.P.  U.P.=s foster parents, on the other hand, have been married 21
years, have cared for U.P. since she was five days old, and seek to make U.P. a
permanent part of their family.  This
evidence supports the trial court=s best interest finding.




(8)       Acts or
omissions of the parent.  Appellant
has abused drugs for years and was arrested for the manufacture and delivery of
cocaine just two weeks after U.P. was born. 
That alone is legally sufficient to support a finding that termination
is in the child=s best interest. 
See In the Interest of K.C.M., 4 S.W. 3d 392, 398 (Tex. App.CHouston [1st Dist.] 1999, pet. denied) (applying the legal
sufficiency standard approved by the Texas Supreme Court in In
the Interest of C.H., the court held evidence of drug addiction=s impact on mother=s ability to parent was legally
sufficient to prove termination of parental rights was in child=s best interests).  Additionally, appellant has been convicted of
theft and burglary, has periodically failed to provide child support, and has
failed to visit his daughter more than four times in 16 months.
(9)       Any
excuse for the acts or omissions of the parent.  Appellant claims he did not understand he was
required to pay child support while in prison; that he attempted to stop U.P.=s mother from taking drugs after
learning she was pregnant; and that he failed to visit U.P. only because of her
ill health.  However, appellant admits
incarceration was no excuse for failure to pay child support and that he knew
U.P.=s mother continued to use drugs after becoming pregnant.  Thus, there is no excuse for appellant=s acts or omissions.  
After weighing the evidence as it relates to the nine Holley
factors, we conclude there is legally and factually sufficient clear and
convincing evidence to support the trial court=s finding that termination of the
parent-child relationship is in U.P.=s best interest.  We therefore overrule appellant=s fourth point of error.[4]




2.         Endangerment
In point of error three, appellant argues the trial court
erred in finding appellant engaged in conduct or knowingly placed U.P. with
persons who engaged in conduct that endangered U.P.=s physical or emotional
well-being.  See Tex. Fam. Code Ann. ' 161.001(1)(E)
(Vernon 2002).  He argues that he did not
endanger U.P. because the relevant time frame for determining whether
endangerment has occurred is before the child is removed from the parent=s care.  See Ybarra v. Texas Dept. of Human Serv.,
869 S.W.2d 574, 577 (Tex. App.CCorpus Christi 1993, no writ).  He also argues that his behavior towards U.P.
personally has always been appropriate and deferential to her health needs.
Appellant=s arguments are without merit.  Although the Texas Family Code does not
define “endanger” as it applies to ' 161.001, the Texas Supreme Court
defines endangerment as “to expose to loss or injury, to jeopardize.”  Tex. Dep’t of Human
Svcs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  We find appellant engaged in such conduct.
A.        Scope of
Endangerment
Endangerment encompasses the following:




(1)       Endangerment
can be exhibited by both actions and failures to act.  Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990) (finding
parent should be named managing conservator unless nonparent offers evidence of
“specific actions or omissions” that demonstrate awarding custody to parent
would physically or emotionally harm child); Ybarra, 869 S.W.2d at 577 (finding
there must be “specific actions or omissions” by parent resulting in physical
or emotional harm for endangerment); and In the Interest of D.T., 34
S.W.3d 625, 634 (Tex. App.CFort Worth 2000, pet. denied) (finding
parent=s endangering conduct may include “actions
or omissions or failures to act”); In the Interest of D.M.,58 S.W.3d
801, 812 (Tex. App.CFort Worth 2001, no pet.) (finding
that termination under ' 161.001(1)(E) must be based on more than a single “act or
omission”).
(2)       Endangering
acts need not be directed at the child or cause actual injury or threat of
injury to the child.  In the Matter of
W.A.B., 979 S.W.2d 804, 807 (Tex. App.CHouston [14th Dist.] 1998, pet.
denied) (finding ' 161.001(1)(E) does not require causal connection between
parent=s misconduct and actual harm to the
child resulting from that misconduct).  See
also Boyd, 727 S.W. at 533; In the Interest of S.F., 32 S.W.3d 318, 321 (Tex. App. C San Antonio 2000, no pet.).




(3)       Endangerment
may be satisfied by showing a parent engaged in a “course of conduct” that
endangered the child=s physical or emotional well-being.  In re.
S.F., 32 S.W.3d at 321 (holding father=s criminal behavior before
imprisonment and continued misbehavior during prison term showed course of
conduct detrimental to child); In the Interest of D.T., 34 S.W.3d 625,
634 (Tex. App.CFort Worth 2000, pet. denied)
(holding that leaving child in foster care while jumping bail, writing bad
checks, and being incarcerated was legally sufficient to establish endangering
course of conduct); In re. J.O.C., 47 S.W.3d 108, 113 (Tex. App.CWaco 2000, no pet.) (holding that not learning proper feeding
techniques, failure to follow CPS plan, avoidance of face-to-face contact, and
a mere four visits with child in 1.5 years was enough to establish endangering
course of conduct).
(4)       Endangerment
may include evidence that a parent has been imprisoned.  Boyd, 727 S.W.2d at 533 (holding that “imprisonment
is certainly a factor to be considered by the trial court on the issue of
endangerment”); Avery, 963 S.W.2d at 553 (holding that, though
imprisonment alone is not sufficient to constitute endangerment, it can be
demonstrative of a course of conduct that endangers the emotional well-being of
a child); In the Interest of K.M.M., 993 S.W.2d 225, 228 (Tex. App.CEastland 1999, no pet.) (finding that imprisonment based on a
“certain type of voluntary, deliberate and conscious course of conduct” may be
considered conduct endangering a child under '' 161.001(1)(D)
or (E)); In the Interest of J.J. and K.J., 911 S.W.2d 437, 440 (Tex. App.CTexarkana 1995, writ denied)
(affirming termination of parental rights of father who was frequently jailed,
used crack cocaine, and abused wife in presence of children). 
(5)       Endangerment
may include evidence of drug addiction and its effect on a parent=s life and his ability to
parent.  Dupree v. Texas Dep’t of
Protective and Regulatory Svcs, 907 S.W.2d 81, 84 (Tex. App.CDallas 1995, no writ). 
See also Tex. Dep’t. of Human Svcs. v. White, 817 S.W.2d 62, 63 (Tex.
1991) (finding child=s addiction to drugs at birth, combined with evidence of
mother=s substance abuse and its effect on
her parent-child relationship, to be sufficient evidence of endangerment).  Endangerment can also include knowledge that
a child=s mother abused drugs.  In the Interest of M.J.M.L., 31 S.W.
3d 347, 351B52 (Tex. App.CSan Antonio 2000, pet. denied)
(finding evidence legally sufficient for endangerment where father knew mother
was a drug addict and that she abused drugs while pregnant, even though father
attempted to get mother to stop taking drugs). 




(6)       Endangerment
may include what a parent does both before and after birth of a child.  In re.
M.D.S., 1 S.W.3d 190, 198B99 (Tex. App.CAmarillo 1999, no pet.) (holding that
sentences for burglary and sex with a minor, as well as prior convictions of
marijuana possession, established endangering course of conduct); In re.
S.F., 32 S.W.3d at 322 (holding that criminal behavior before child=s birth, coupled with misbehavior
during imprisonment, provided sufficient basis to establish course of conduct
that endangered child); Avery, 963 S.W.2d at 553 (holding parent=s criminal record and previous child
abandonment behavior before child=s birth were admissible to establish
grounds for termination of parental rights.); In the Interest of W.A.B.,
979 S.W.2d at 807 (holding, under different standard of review, that mother=s criminal history, imprisonment, and
illegal drug use during and after pregnancy constituted basis for termination
of parental rights.).
B.        Appellant=s Conduct Endangering U.P.’s Physical Well-Being 
(1)       Appellant was responsible for his conduct while his child was in
utero.
 




Under the Texas Family Code, a “child” is defined as a person
under 18 years of age who is not and has not been
married or who has not had the disabilities of minority removed.  Tex. Fam. Code Ann. ' 101.003 (Vernon 2002).   However, harm done to a child in utero has
generally been recognized in Texas when the child has been born alive.[5]  See e.g. Witty v. Amer. Gen. Capital Distrib., Inc., 727 S.W.2d 503, 506 (Tex. 1987)
(holding parent cannot bring a claim for fetus’ in utero injuries under
Texas Wrongful Death or Survival Statute unless child is born alive); Brown
v. Shwarts, 968 S.W.2d 331, 334 (Tex. 1998)
(holding fetus can be a patient before birth under the Texas Medical Liability
Act if child is born alive); Cuellar v. State, 957 S.W.2d 134, 140 (Tex.
App.CCorpus Christi 1997, pet. ref=d) (holding person can be guilty of
manslaughter under Texas intoxification manslaughter statute for death
resulting from in utero injuries as long as child is born and lives for
a period of time before death.); Leal v. C.C. Pitts Sand and Gravel, Inc.,
419 S.W.2d 820, 822 (Tex. 1967) (holding child has right to recover for
prenatal injuries if subsequently born alive).
Several Texas statutes recognize the rights of unborn
children who are born alive.  See e.g.
Tex. Prob. Code Ann. '' 34A and 37A (Vernon 2002) (allowing unborn
children to be represented in probate matters and to disclaim property
inheritances); Tex. Prop. Code Ann. '' 112.010(C)(2)
and 115.014B.015 (Vernon 1995) (allowing unborn
children to disclaim trust interests and to have guardians ad litem appointed);
and Tex. Fam. Code Ann. ' 160.001 (1)(R) (Vernon 2002)
(allowing for termination of the parent-child relationship when there is clear
and convincing evidence that termination is in the best interest of the child
and parent has caused the child to be born addicted to alcohol or
illegally-obtained controlled substance).[6]
(2)       Appellant=s conduct endangered his child before
birth.
Prior to U.P.=s birth, appellant and U.P.=s mother used illegal drugs
together.  Although appellant now claims
he discontinued providing drugs to U.P.=s mother after learning of her
pregnancy, there is evidence to suggest he continued to provide the mother with
illegal drugs even after knowing of her pregnancy.  Because the judge is the exclusive trier of
the facts, the credibility of the witnesses, and the weight to be given to each
witness= testimony, the trial court was free
to believe or disbelieve appellant=s claim that he stopped providing
illegal drugs to U.P.=s mother after discovering she was
pregnant.




Additionally, appellant freely admits to his own personal
drug abuse before and after U.P.=s mother became pregnant; he admits
he knew U.P.=s mother continued to use illegal
drugs; he admits he failed to report her to the CPS or police; he acknowledges
he did not seek assistance or drug counseling on her behalf; and he agrees that
his inaction, combined with the actions of U.P.=s mother, placed his child in grave
danger and caused her health problems.
Appellant=s actions demonstrate appellant engaged in conduct that
endangered U.P.=s physical well-being.  Indeed, under almost identical facts, the San
Antonio Court of Appeals reached a similar conclusion.  See In the Interest of M.J.M.L., 31
S.W.3d 347 (Tex. App.CSan Antonio 2000, pet. denied).  In M.J.M.L., a child born addicted to
drugs was taken at birth by CPS and placed with a foster family.  When the child=s father challenged the right of the
court to consider conduct occurring before the child=s birth, the court found legally
sufficient evidence of an endangering course of conduct when the father knew
the mother was a drug addict, knew she had left a drug clinic to return to a
life of drug abuse, and knew his own absence would mean his soon-to-be-born
child would be left in the care of a drug-addicted mother.  Id. at 352.  
Appellant nevertheless contends his physical endangerment of
U.P. was done unknowingly and so cannot be used against himCindeed, he says he personally stopped
giving U.P.=s mother drugs once he knew she was
pregnant and that he did not know U.P.=s mother could become pregnant.  Scienter, however, is not required for
appellant=s own acts under ' 161.001(1)(E);
scienter is required only under subsection (E) when a parent places his child with
others who engage in endangering acts.[7]




Appellant claims he has changed and that his past
indiscretions should not be held against him. 
Appellant=s track record, however, raises doubt as to his ability to
change: he continued to commit crimes even after the birth of his other
children; he violated parole three times; and he abused and sold illegal drugs
even after knowing of U.P.=s problems at birth.  As the trier of fact, the trial court was
allowed to believe or disbelieve appellant=s testimony.
WeClike our sister court in M.J.M.L.Chold evidence that a parent provided
a controlled substance to the mother while the child was in utero,
resulting in health problems emanating solely from the presence of that
substance in the child=s blood during gestation, is clear and convincing evidence of
conduct endangering the physical well-being of a child under Family Code ' 161.001(1)(E).
C.        Appellant=s Conduct Endangering U.P.=s Emotional Well-Being
Appellant also engaged in conduct that endangered U.P.=s emotional well-being. 
Specifically, he sold illegal drugs two weeks after her birth and was
arrested and incarcerated for one year for the offense.  This resulted in appellant being absent from
U.P.=s life for more than twelve months.  Because U.P.=s mother was also absent, appellant=s conduct led to U.P.=s not knowing either of her
biological parents.  A factfinder could
reasonably conclude from the evidence that this created an emotional vacuum in
U.P.=s life.
The evidence of appellant=s conduct after U.P.=s birth was legally and factually
sufficient to support the trial court=s finding of endangerment to U.P.=s emotional well-being.  Thus, we affirm the court=s finding of physical or emotional
endangerment under ' 161.001(1)(E).  Accordingly, we overrule point of error
three.
Because appellant=s parental rights can be terminated
with a finding of best interest of the child and any one of the three ' 161.001(1) grounds challenged by
appellant, we need not address points of error one or two.  




CONSTITUTIONALITY OF STATUTORILY-REQUIRED
TIME LIMITS IN PARENTAL TERMINATION CASES
 
In his fifth point of error, appellant challenges the
constitutionality of the deadline requiring a parental termination suit to be
dismissed if the court has not rendered a final order or granted an extension
by the first Monday after the first anniversary of issuance of a temporary
order.  Tex.
Fam. Code Ann. ' 263.401(a) (Vernon 2002).  Appellant argues that he was harmed because
enforcement of the statutory deadline forced him to go to trial before he could
complete his services and establish a better track record.  He asserts he was deprived of substantive due
process and due course of law and harmed under the open courts and separation
of powers provisions of the Texas Constitution. 
As a prerequisite to presenting a complaint for appellate
review, the record must show that the complaint was made to the trial court by
a timely request, objection, or motion.  Tex. R. App. P. 33.1(a)(1).  A
constitutional challenge not raised properly in the trial court is waived on appeal.  Dreyer v. Greene,
871 S.W. 2d 697, 698 (Tex. 1993); Segovia v. Texas Dep=t. of Protective and Regulatory Serv.,
979 S.W.2d 785, 788 (Tex. App. C
Houston [14th Dist.] 1998, pet denied). 

Although appellant made no constitutional challenge during
trial, he argues that waiver does not apply in his case because of the
heightened standard of review required in parental rights termination
cases.  In the Interest of A.P. and
I.P., 42 S.W.3d 248, 256 (Tex. App.CWaco 2001, no pet.).  The A.P. case, however, deals with a
sufficiency challenge, not a constitutional challenge.  Id. at 255.  Hence, A.P. is inapplicable.  We find appellant waived his complaint and
overrule point of error five. 
FAILURE TO ALLOW FINAL ARGUMENT
In his sixth point of error, appellant argues that the trial
court erred in denying him final argument. Appellant relies on the Texas Rules
of Civil Procedure, which state that after presentation of evidence is
concluded and the charge read, parties may argue a case to the jury.  Tex. R. Civ. P. 269(a).





However, appellant failed to preserve error.  As a prerequisite to presenting a complaint
for appellate review, the record must show that: (1) the complaint was made to
the trial court by a timely request, objection or motion and (2) the trial
court ruled on the request, objection, or motionCeither expressly or implicitlyCor refused to rule on it and the
complaining party objected to the refusal. 
Tex. R. App. P. 33.1(a)(1) and (2).  
Here, the trial court pronounced its judgment immediately
after both sides restedCthus neither plaintiff nor defendant had the
opportunity to make a closing argument. 
Instead of objecting to this apparent denial of a final summation,
defense counsel requested the trial court state its specific grounds for the judgment.  
This the trial court didCat which point, defense counsel noted
that not all of the grounds found by the trial court for its judgment appeared
in the State=s pleadings.  The trial court then responded:
Court:                         If they
weren=t in the pleadings, then . . . the decree cannot be
based on those grounds. . . . To the extent they are, I order that they be put
into the decree.
Defense Counsel:      If given a chance to do an argument, that
is what I was going to point out in my opinion. 
I don=t think any of the things they pled were proven by
clear and convincing evidence.  They are
stuck with their pleadings.
 
At this point, the trial court and both trial counsels
discussed the content of the State=s pleadings and the content of the
court=s final decree. At no time did defense
counsel return to the subject of his right to closing argumentCeither through a formal objection or
through a request for a ruling. 
Consequently, appellant waived his objection to the court=s denial of final summation.  See Tex.
R. App. P. 33.1(a); Butler
v. State, 872 S.W.2d 227, 236 (Tex. (Tex. Crim. App. 1994).  Accordingly, we overrule appellant=s final point of error.




CONCLUSION
Having overruled
all of appellant=s points of error, we affirm the trial court=s order terminating appellant=s parental rights.
 
 
/s/        John
S. Anderson
Justice
 
 
 
Judgment rendered and Opinion on Motion for Rehearing and Concurring
Opinion filed on April 17, 2003.
 
Panel consists of Justices Yates,
Anderson, and Frost.  (Frost, J.
concurring.)




[1]  The
trial court also terminated the parental rights of U.P.=s 
mother; however, she has not filed an appeal. 


[2]  AClear and convincing evidence@ is defined as the Ameasure
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).


[3]  Although
requested, the trial court did not file its findings of fact as a separate
document pursuant to Rule 299a of the Texas Rules of Civil Procedure.  See Tex.
R. Civ. P. ' 299a.  Rather,
the trial court recited its findings in its judgment.  No findings were made in a separate
document.  Although the trial court=s findings were erroneously included in its order of
termination, they still have probative value as long as they do not conflict
with those in a separate document.  See
Hill v. Hill, 971 S.W.2d 153, 157 (Tex. App.CAmarillo 1998, no pet.); Martinez v. Molinar, 953 S.W.2d 399, 401 (Tex. App.CEl Paso 1997, no writ).  Absent findings in a separate document made
pursuant to Rules 297 and 298, which conflict with the findings set out in the
judgment, the findings in the judgment will not be denied probative value.  Hill, 971 S.W.2d at
157.


[4]  Appellant
argues that even if it is not in U.P.=s best interest to grant appellant full custody, the
trial court should have named him possessory conservator.  However, appellant cites no place in the
record, pleadings, or his request for findings of fact and conclusions of law
where he requested a finding on the issue of appellant being named possessory
conservator.  As a prerequisite to
presenting a complaint for appellate review, the record must show that the
complaint was made to the trial court by a timely request, objection, or
motion.  Tex. R. App. P. 33.1(a)(1); Schafley v. Schafley,
33 S.W.3d 863, 867 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (party
complaining on appeal must make trial court aware of complaint and obtain
ruling prior to appeal).  Because
appellant never presented this alternative to the trial court and raises it for
the first time on appeal, his right to have this court rule on the trial court=s failure to name him possessory conservator has been
waived.  See London v. London, 94
S.W.3d 139, 143 (Tex. App.CHouston [14th Dist.] 2002, no pet. h.)(finding wife
waived issue that trial court erred in restricting children=s primary residence to one county, rather than one
county and contiguous county, where wife failed to raise argument orally or in
writing to trial court); In the Interest of T.J.S., 71 S.W.3d 452, 458
(Tex. App.CWaco 2002, pet. denied) (finding father waived any
error in trial court=s failure to instruct jury on rebuttable parental
presumption regarding appointment as managing conservator.); Connors v.
Connors, 796 S.W.2d 233, 236 (Tex. App.CFort
Worth 1990, writ denied) (finding father=s
failure to present issue of appointment as managing conservator waived alleged
error). 
Appellant argues that because both the
State and adoptive parents pleaded, in the alternative, that appellant be named
possessory conservator with limited access in the event the trial court failed
to terminate appellant=s parental rights, there were sufficient pleadings to
support his request for possessory conservatorship;
however, appellant fails to cite authority for this proposition.


[5]  See Aaron
Wagner, Texas Two-Step: Serving Up Fetal Rights by Side-Stepping Roe v.
Wade Has Set the Table for Another Showdown on Fetal Personhood in Texas and
Beyond, 32 Tex. Tech.
L. Rev. 1085, 1100 (2001).  According to Wagner, the Alive birth@
requirement or Aborn alive@ rule
for claims in Texas civil suits and criminal prosecutions evolved from English
common law.  Id.
at 1100.  See Magnolia
Coca-Cola Bottling Co. v. Jordan, 78 S.W.2d 944, 945 (1935) (holding that
because the common law does not recognize the existence of a fetus prior to
birth, no cause of action exists for prenatal injuries to a fetus unless it is
born alive.).    


[6]  It is unclear
why TDPRS did not pursue termination of appellant=s rights
under ' 160.001 (1)(R), as well as
under subsections (C), (D) and (E). 
Section 161.001(1)(R) was in effect before U.P.
was born.  In any case, the trial court
did not include such a finding in its findings of fact and conclusions of law. 


[7]  Subsections
(D) and (E) differ in the source of the physical and emotional endangerment to
the child.  See In the Interest
of S.H.A., 728 S.W.2d 73, 83B84
(Tex. App.CDallas 1987, writ ref=d
n.r.e.).  Under (D), the environment, as
opposed to conduct, must be the source of endangerment to the child.  Id. at 84.  Under (E), the cause of the danger must be
the parent=s or another=s
actions or failures to act.  Id. at 83B84. 
Although both subsections reference knowledge on the part of the parent
that there is a danger, subsection (E) requires only that the parent know others
are engaging in endangering conduct; it does not require the parent to know
that his own conduct is dangerous. Tex.
Fam. Code Ann. ' 161.001(1)(E) (Vernon 2002). 
 


