      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00284-CV



                                   Moses Hernandez, Appellant


                                                  v.


              Texas Department of Protective and Regulatory Services, Appellee




 FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 198TH JUDICIAL DISTRICT
   NO. 2002009, HONORABLE ROBERT HOFFMANN, ASSOCIATE JUDGE PRESIDING



                             MEMORANDUM OPINION


               Moses Hernandez appeals a final decree terminating his parental rights to three

children, M.H., M.A.H., and A.L.H. See Tex. Fam. Code Ann. § 161.001(1), (2) (West 2002). On

appeal, he argues that the evidence is insufficient to support the statutory termination grounds on

which the trial court relied. Hernandez, who was incarcerated at the time of trial, also complains that

the trial court acted improperly in proceeding in his absence, that he was not properly served, and

that various inconsistencies between the filings in the Clerk’s Record and corresponding documents

introduced into evidence at trial demonstrate that his due process rights were violated. We affirm

the final decree.
                                        BACKGROUND

                M.H., M.A.H., and A.L.H. are the children of Hernandez and Christi Marie Silva.

Although Silva was still married to another man, she and Hernandez had a romantic relationship for

an approximately seven-year period ending in 2002. Although the pair often lived together, their

relationship was frequently interrupted by periods in which Hernandez was incarcerated. Silva later

estimated that Hernandez was behind bars for as much as six months out of each year of their

relationship.

                M.H. was born in November 1997, M.A.H. in March 1999, and A.L.H. in January

2000. In December 2001, during one of Hernandez’s periods of incarceration, Silva left the three

younger children at the house of her mother, Laura Aguilar, in Brady. Aguilar had previously gained

custody of three older children whom Silva had conceived with her estranged husband. Aguilar

eventually called the Department on January 30, 2002, explaining that she could not care for the

additional three children and expressing concern regarding their welfare with Silva and Hernandez.

The Department took emergency custody of M.H., M.A.H., and A.L.H. and placed them in foster

care.

                In February 2002, following a hearing, the district court entered a temporary order

appointing the Department temporary sole managing conservator, granting Silva and Hernandez

(who was then out of jail) limited supervised visitation rights, and mandating that each parent meet

certain requirements as a condition for possible reunification. Hernandez’s conditions included

undergoing psychological or psychiatric evaluation; completing counseling, parenting classes, and

substance abuse assessments and any recommended treatment; and complying with the Department’s



                                                 2
family service plan and any amendments thereto. In early March, the Department and Hernandez

agreed to a family service plan whereby he would obtain full-time employment and safe housing,

stay away from firearms, and attend scheduled visitations with the children.1 The trial court

approved this plan by order following a hearing later that month.

                In April 2002, Hernandez was incarcerated again after an incident in which he

assaulted Silva and gave her a black eye. After Hernandez was arrested for the assault, law

enforcement officials discovered several outstanding state and federal arrest warrants. From April

2002 through the time of trial, Hernandez remained incarcerated in various state and federal penal

institutions. In October 2002, the trial court appointed an attorney ad litem for Hernandez, who filed

a general denial on his behalf. An additional family service plan regarding Hernandez, similar to the

prior version, was filed at this time.

                In February 2003, the trial court entered an agreed final order appointing the

Department as permanent sole managing conservator and granting Silva and Hernandez limited

supervised visitation rights. The order expressly reserved the Department’s right to seek termination

of Silva and Hernandez’s parental rights without the need to prove change in circumstances and to

utilize evidence predating the order in support for such an action. After having explored various

relative placements, the Department placed the children with their maternal great-aunt and great-




        1
          As discussed below, the copy of the March 2002 family service plan in the Clerk’s Record
is signed by Hernandez, but the copy introduced into evidence at trial and included in the Reporter’s
Record is not signed by Hernandez.

                                                  3
uncle, Belinda and Johnny Culp. The Culps have cared for the children since February 2003 and

have expressed a desire to adopt them.

               In August 2003, the Department filed a new petition seeking termination of Silva and

Hernandez’s parental rights to enable the Culps to adopt the children. At an October hearing, the

trial court set the case for bench trial in February 2004. Hernandez was represented at this hearing

by his attorney ad litem, Stephen Harpold. Although Hernandez had not requested to be bench

warranted for trial, the trial court sua sponte addressed the issue of whether or how Hernandez would

participate in trial. The trial court determined that Hernandez’s physical presence at trial was not

essential to protect his rights and that his rights could be adequately protected (1) through Harpold’s

representation and (2) by allowing Hernandez, with Harpold’s assistance, to prepare an affidavit

containing the testimony he would have offered at trial. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex.

2003).

               The trial court also ordered the case to mediation in advance of trial. During the

mediation, Harpold understood that Hernandez would agree to an order terminating his parental

rights. Following the mediation, however, Hernandez refused to communicate with Harpold despite

numerous attempts to contact him by phone or mail. Harpold ultimately resorted to attempting to

contact Hernandez through Hernandez’s prison counselor. The counselor advised Harpold that

Hernandez would neither sign the termination agreement nor speak to Harpold or anyone else

regarding the case. Harpold continued attempting, without success, to contact Hernandez until trial.

               On the date of trial, Harpold moved for a continuance and to withdraw, citing his

inability to communicate with Hernandez and either to obtain an agreed order or to prepare an



                                                  4
affidavit for trial. The trial court denied these motions and proceeded to hear evidence. Silva

voluntarily relinquished her parental rights and testified at length that it was in the children’s best

interest that her own and Hernandez’s rights to the children be terminated so that the Culps could

adopt them. In particular, Silva testified that:


       •    Hernandez rarely worked and that the only money he ever had was what his
            father gave him.

       •    Hernandez used drugs while he lived with Silva and the children, that she
            witnessed him intoxicated in front of the children, and that he smoked marijuana
            in the presence of the children.

       •    Hernandez had a violent temper and he “routinely” blew up at her in front of the
            children. She described one incident in which he, while under the influence of
            drugs, pulled her hair and threw her across a room in the presence of the
            children.

       •    Hernandez had quarreled with her over money she needed for clothes and shoes
            for M.H. because he was starting HeadStart. Hernandez reacted by grabbing
            M.H. and leaving with him without Silva’s permission.

       •    Later, M.A.H., A.L.H., and another of Silva’s boyfriends were all waiting in a
            car outside a convenience store while Silva was inside using the restroom.
            Hernandez approached on the driver’s side and punched the boyfriend in the
            face, grabbed M.A.H. out of the back of the car and took her with him.
            Hernandez kept M.H. and M.A.H. away from Silva for two months until the
            place he was staying with the children was “busted” and Silva was able to
            retrieve them.


               One of the children’s caseworkers, Linda Scalf, testified that Hernandez admitted to

her that he was “involved with people who use drugs.” When they were removed, both M.H. and

M.A.H. reportedly asked the shelter staff and the foster mother for a “cold beer.” M.H. told them




                                                   5
that he and his sisters were allowed to drink beer and smoke cigarettes, but that marijuana was only

for grown ups.2

               In her investigation, Scalf said she learned that Hernandez “kept weapons and had

threatened people with weapons in the past.” Scalf testified that the children indicated to her several

times that they were scared of Hernandez and did not want to be returned to Silva and Hernandez.

Scalf explained that after removal the children demonstrated deviant behavior consistent with abuse

and neglect. She said that M.H. displayed angry outbursts, aggression towards his sisters, bed

wetting, aggression towards adults, and aggression towards his mother during her visits. The

children had nightmares and woke up expressing fears that Hernandez was coming after them.

               All three children acted out sexually. The foster mother found M.H. and M.A.H. in

bed together simulating a sex act. M.H. told the foster mother that they were having sex. M.H. told

his therapist that he witnessed Hernandez having sex with Silva and with other women; he also said

he saw Silva having sex with other men. He was able to describe the various sex acts that he

witnessed. M.H. was also able to describe the events of an arrest by the police. He described

incidents when Hernandez hurt Silva in front of him.

               All of the children described a chaotic, unstable lifestyle with their parents, having

to move from house to house and being left with numerous babysitters. M.H. also described being




       2
         On appeal, Hernandez suggests that it was improper for the trial court to admit testimony
recounting statements made by the children to caseworkers, therapists, and foster parents after their
removal. But these out-of-court statements were admitted without objection. See Tex. R. Evid. 802
(“Inadmissible hearsay admitted without objection shall not be denied probative value merely
because it is hearsay.”).

                                                  6
hungry and having to sleep in a car that did not run. The children reportedly improved dramatically

in the custody of the Culps and were thriving. Scalf testified that the children showed immediate

improvement when placed in a safe, stable environment.

               Scalf also testified about Hernandez’s failure to comply with the court’s conditions

for reunification. Scalf testified that both she and the court explained to Hernandez the importance

of satisfying these requirements within a certain time frame in order to have the children returned

to him. Scalf said that she spent one and a half to two hours explaining these requirements to

Hernandez on the day of the February 2002 hearing. She advised him that the Department would

pay for all the court-ordered services. To make it convenient for him, Scalf scheduled all of

Hernandez’s court-ordered services in Brownwood, where he was living at the time. Scalf provided

Hernandez with the name, address, and telephone numbers for the appropriate mental health

professionals and told him to make arrangements for both the psychological evaluation and

individual counseling.

               Nonetheless, between the time of the court’s order in February 2002 and his arrest

in April, Hernandez failed to comply with any of the conditions for reunification—he did not submit

to a psychological evaluation or to a substance abuse assessment, and he did not attend counseling,

parenting classes, or anger management classes. He had obtained a job but held it for only a few

weeks. Hernandez attended only one scheduled visit with his children in March 2002. He failed to

attend a status hearing for the children held on March 21. Scalf testified that Hernandez did not

accomplish even one of the requirements.




                                                 7
                Scalf detailed her efforts to assist Hernandez in satisfying the requirements. She said

she always notified him of hearings and appointments in letters and would enclose stamped, self-

addressed envelopes so that he could communicate with her and the children more easily. She sent

him photos of the children, as well as updated information about them. Hernandez sent the children

three or four letters and drawings by way of Scalf. However, he stopped corresponding to the

children a full year before trial. After Hernandez was incarcerated, Scalf continued to maintain

contact with him at the various penal facilities where he was placed. Scalf testified that she made

reasonable efforts to work with Hernandez towards reuniting with his children. She said that

Hernandez did not show actions consistent with his expressed desire to take care of his children.

                The trial court terminated Hernandez’s parental rights. It expressly found, by clear

and convincing evidence, that the Department had established statutory termination grounds and that

termination would be in the children’s best interests. See Tex. Fam. Code Ann. § 161.001(1), (2).

This appeal followed.


                                            DISCUSSION

                On appeal, Hernandez presents seven issues, alleging that the trial court lacked

personal jurisdiction because he had not been properly served with citation, that his due process

rights were violated because the trial court failed to issue a bench warrant and held the termination

trial in his absence, that the existence of discrepancies in the record demonstrates that his due process

rights were violated, and that there is legally and factually insufficient evidence to support the

statutory grounds for termination.




                                                   8
Proof of service

               In his first issue, Hernandez asserts that the trial court lacked personal jurisdiction

over him, alleging that the record contains no proof that he was properly served with citation upon

the filing of the Department’s current (August 2003) petition seeking termination. Although the

record as originally forwarded to this Court apparently did not include this information, the

Department supplemented the record upon discovering the omission. See Tex. R. App. P. 34.5(c).

The record before us contains a copy of the petition and citation issued on September 25, 2003, and

executed on Hernandez on October 10, 2003, in Pollock, Louisiana, the location of the federal prison

where he was incarcerated. The record thus demonstrated that the trial court had acquired personal

jurisdiction over Hernandez before it signed its judgment in March 2004. We overrule Hernandez’s

first issue.


Bench warrant

               In his second issue, Hernandez complains that the trial court did not issue a bench

warrant to enable him to attend trial and proceeded without him being present. Hernandez does not

dispute that he never requested to be bench warranted back to Brady for trial. Rather, he attacks the

trial court’s sua sponte application of the Z.L.T. factors, see 124 S.W.3d 163,165 (Tex. 2003),3 and


        3
           Although inmates cannot be denied access to the courts simply because they are
incarcerated, they do not have an absolute right to appear in person in every court proceeding.
Rather, courts must balance an inmate’s right of access to the courts against the efficacy of the
correctional system. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). A variety of factors are
considered in making this assessment, including: (1) the cost and inconvenience of transporting the
prisoner to the courtroom; (2) the security risk to the court and public posed by the inmate; (3)
whether the prisoner’s claims are substantial; (4) whether resolution of the litigation can reasonably
be delayed until the inmate’s release; (5) whether the inmate can and will offer admissible,

                                                  9
determination that his presence at trial was not essential to protect his rights and that his rights could

be adequately protected by allowing him to participate by affidavit.

                 Hernandez’s failure to request to be bench warranted is fatal to his complaint. In

Z.L.T., the supreme court held that trial courts do not have a duty to independently examine the

record and weigh the relevant factors when an inmate requests a bench warrant but fails to explain

why he or she is entitled to attend trial. 124 S.W.3d at 166. Instead, an inmate, like any other

litigant, has the burden to identify with sufficient specificity the grounds for the ruling he seeks. Id.

at 166 (“since a prisoner has no absolute right to be present in a civil action, it follows that the

prisoner requesting a bench warrant must justify the need for his presence”); see also Tex. R. Civ.

P. 21; Tex. R. App. P. 33.1(a)(1)(A). Here, Hernandez did even less than the inmate in Z.L.T.: he

did not make a request to the trial court that he be allowed to attend trial.4 We overrule Hernandez’s

second issue.5



noncumulative testimony that cannot be presented by deposition, telephone, or some other means;
(6) whether the inmate’s presence will facilitate judging of his or her demeanor or credibility; (7)
whether trial is to the court or a jury; and (8) the inmate’s probability of success on the merits. Id.
at 165-66.
        4
          Moreover, Hernandez brings forward nothing that might lead us to conclude that the trial
court abused its discretion in determining that Hernandez’s physical presence at trial was not
essential to protect his rights.
        5
           Hernandez briefly states, in the last sentence of his argument regarding his second issue,
that the trial court “abused its discretion in denying the defendant the right to be present at trial and
by denying the motion for continuance.” (Emphasis added.) This statement appears in the context
of an argument regarding the eighth element of the Z.L.T. test, potential for delay. Hernandez makes
no other mention of his motion for continuance, nor does he provide argument, legal authorities, or
record cites to support his sole assertion. Hernandez has thus waived any complaint regarding the
trial court’s denial of his motion for continuance. See Tex. R. App. P. 38.1(h); Trenholm v. Radcliff,
646 S.W.2d 927, 934 (Tex. 1983).

                                                   10
Sufficiency of the evidence

               In issues three through six, Hernandez challenges the sufficiency of the evidence to

support the trial court’s findings that Hernandez committed acts and omissions constituting statutory

termination grounds under subsections (D), (E), (N) and (O) of family code section 161.001(1).6

The court was authorized to terminate Hernandez’s parental rights if the Department proved and the

court found, by clear and convincing evidence, (1) that Hernandez engaged in conduct constituting

a statutory ground for termination and (2) that termination was in the children’s best interests. See

Tex. Fam. Code Ann. § 161.001 (West 2002); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Although

the trial court found several statutory grounds for termination, the Department was required to

establish only one to satisfy the first element of the termination standard. Green v. Texas Dep’t of

Protective & Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.—El Paso 2000, no pet.); In re

J.M.T., 39 S.W.3d 234, 237 (Tex. App.—Waco 1999, no pet.); In re D.G., 5 S.W.3d 769, 771 (Tex.

App.—San Antonio 1999, no pet.). Moreover, Hernandez has not challenged the trial court’s finding

regarding the second element of the termination test, that termination was in the best interest of the

children. Accordingly, to affirm we need only determine that there is sufficient evidence to support

one of the termination grounds found by the trial court.




       6
        Hernandez does not specify whether he is challenging the legal or factual sufficiency of the
evidence, or both. We will assume he is challenging both the legal and factual sufficiency of the
evidence.

                                                 11
     Standard of review

                To terminate parental rights, the Department must make its required showings by

clear and convincing evidence. “Clear and convincing” evidence is that degree of proof which will

produce in the mind of the trier of fact a firm belief or conviction in the truth of the proposition

sought to be established. Tex. Fam. Code Ann. § 101.007 (West 2002). Evidence is clear and

convincing if it “will produce in the mind of the trier of fact a firm belief or conviction as to the truth

of the allegations” supporting termination. C.H., 89 S.W.3d at 23 (quoting State v. Addington, 588

S.W.2d 569, 570 (Tex. 1979)).

                In reviewing the legal sufficiency of the evidence under the clear and convincing

standard, we consider all of the evidence in the light most favorable to the finding and determine

whether a reasonable trier of fact could have formed a firm belief or conviction that the finding was

true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We review the factual sufficiency of the

evidence under the clear and convincing standard by viewing all of the evidence and determining

whether a reasonable fact-finder could have resolved disputed evidence in favor of its finding. Id.

If the disputed evidence is such that a reasonable fact-finder could have formed a firm belief as to

the truth of the Department’s allegations, the evidence is factually sufficient. Id.; C.H., 89 S.W.3d

at 25. These standards of review maintain the appropriate deference to the fact-finder’s role by

assuming that it resolved evidentiary conflicts in favor of its finding when it was reasonable to do

so and by disregarding evidence that it could have disbelieved. J.F.C., 96 S.W.3d at 266-67.




                                                    12
    Endangerment

                  In issues three and four, Hernandez challenges the sufficiency of the evidence

supporting the trial court’s findings that he knowingly placed or allowed his children to remain in

conditions or surroundings that endangered their well-being or knowingly allowed his children to

remain with persons who engaged in conduct that endangered his children. See Tex. Fam. Code

Ann. § 161.001(1)(D), (E). To prove endangerment under subsection D, the Department had to

prove that Hernandez (1) knowingly (2) placed or allowed the children to remain (3) in conditions

or surroundings that endangered their physical or emotional well-being. Id. § 161.001(1)(D).7 Under

subsection E, the Department had to prove that Hernandez (1) engaged in conduct or knowingly

placed the children with persons who engaged in conduct (2) which endangered their physical or

emotional well-being. Id. § 161.001(1)(E). Under subsection D, the danger to the child results from

the child’s environment, while under subsection E, the parent’s conduct is the source of the danger

to the child. In re D.C., 128 S.W.3d 707, 715 (Tex. App.—Fort Worth 2004, no pet.); Robinson v.

Texas Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686 (Tex. App.—Houston [1st Dist.]

2002, no pet.).




       7
         The degree of endangerment required for involuntary termination is “more than a threat of
metaphysical injury or the possible ill effects of a less-than-ideal family environment,” but the child
does not need to suffer actual physical injury. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); Texas
Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Instead, “endanger” means to
“expose to loss or injury; to jeopardize.” Boyd, 727 S.W.2d at 533. Moreover, the parent need not
have actual knowledge of an injury or certain knowledge that an injury to the child will result; it is
enough that the parent is aware of the potential danger to the child and the parent disregards the risk.
In re S.G.S., 130 S.W.3d 223, 238 (Tex. App.—Beaumont 2004, no pet.).

                                                  13
               A parent’s failure to maintain a home and constantly moving and changing locations

may constitute conduct that endangers a child’s well-being. See In re S.G.S., 130 S.W.3d 223, 238

(Tex. App.—Beaumont 2004, no pet.). Stability and permanence are paramount in the upbringing

of children. See In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied); In

re M.A.N.M., 75 S.W.3d 73, 77 (Tex. App.—San Antonio 2002, no pet.); Salas v. Texas Dep’t of

Protective & Regulatory Servs., 71 S.W.3d 783, 792 (Tex. App.—El Paso 2002, no pet.); see

Lehman v. Lycoming County Children’s Servs. Agency, 458 U.S. 502, 513 (1982) (children need

stable, long-term relationships with caretakers). A fact-finder may infer from past conduct

endangering the well-being of a child that similar conduct will recur if the child is returned to the

parent. See In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, no pet.).

               Furthermore, a parent’s repeated criminal acts may constitute sufficient evidence of

conduct that endangers the well-being of a child. In re J.N.R., 982 S.W.2d 137, 143 (Tex.

App.—Houston [1st Dist.] 1998, no pet.), disapproved on other grounds by C.H., 89 S.W.3d at 24-

25; see also In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no pet.); Allred v. Harris

County Child Welfare Unit, 615 S.W.2d 803, 806 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d

n.r.e.). Illegal drug use in the child’s household constitutes surroundings that endanger the well-

being of the child under subsection D. D.C., 128 S.W.3d at 715-16; In re S.D., 980 S.W.2d 758, 763

S.W.3d 707, 715 (Tex. App.—San Antonio 1998, pet. denied). Violent or abusive conduct by

someone within the household also constitutes an environment that endangers children. K.A.S., 131

S.W.3d 215, 222 (Tex. App.—Fort Worth 2004, pet. denied); D.C., 128 S.W.3d at 715; Director of

Dallas County Child Protective Servs. Unit v. Bowling, 833 S.W.2d 730, 733 (Tex. App.—Dallas



                                                 14
1992, no writ); In re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied); Ziegler v.

Tarrant County Child Welfare Unit, 680 S.W.2d 674, 678-79 (Tex. App.—Fort Worth 1984, writ

ref’d n.r.e.).

                 The evidence at trial, summarized above, overwhelmingly demonstrated that

Hernandez failed to provide his children with a safe and stable environment. Hernandez subjected

the children to a chaotic and virtually nomadic lifestyle. By all accounts, he had a violent temper

and routinely screamed at Silva. He was physically violent towards Silva in the presence of the

children. The children also witnessed his alcohol and drug abuse; the adverse impact on the children

was demonstrated when the four-year-old attempted to order a cold beer at the emergency shelter and

by M.H.’s statements concerning the appropriateness of alcohol use by children. Evidence in the

record also supports the claim that Hernandez engaged in sexual activity in front of the children that

had an adverse affect on their psycho-social development. Hernandez also persisted in criminal

conduct that resulted in incarcerations that prevented him from properly supervising the children;

his criminal conduct continued even after the children were removed and his parental rights were at

stake. The evidence in this case constitutes clear and convincing proof that Hernandez knowingly

placed his children in harmful circumstances and engaged in conduct that endangered their physical

and emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D), (E). We overrule

Hernandez’s third and fourth issues.8


        8
          We have no need to address Hernandez’s fifth and sixth issues, in which he attacks the trial
court’s findings under subsections (N) and (O) because the evidence is sufficient to support at least
one of the termination grounds. See Robinson, 89 S.W.3d at 687; In re S.F., 32 S.W.3d 318, 320
(Tex. App.—San Antonio 2000, no pet.) (only one ground need be proved under section 161.001(1)
to support judgment of termination).

                                                 15
Due process

               In his seventh issue, Hernandez argues that he was deprived of his rights to due

process under the Fifth and Fourteenth Amendments by what he alleges to have been the

Department’s use of falsified or inaccurate documentary evidence at trial. He bases this complaint

on apparent inconsistencies between three of the Department’s trial exhibits, PX1, PX2, and PX4,

and corresponding documents in the clerk’s record.

               PX1 is a certified copy of the February 2002 temporary order setting forth conditions

for Silva and Hernandez to be reunified with the children. PX1 and its counterpart in the clerk’s

record differ with regard to the recitation concerning whether Hernandez attended the adversary

hearing that preceded the order. Although the clerk’s record version recites that Hernandez “is

incarcerated and did not appear in person,” PX1 contains handwritten alternations reflecting that

Hernandez “is incarcerated and did not appear in person.” PX1 is consistent with the trial testimony

of Department caseworkers that Hernandez did, in fact, attend this hearing.

               PX4 is a certified copy of the March order approving the family service plan. The

inconsistencies between PX4 and its counterpart in the Clerk’s Record are similar to those involving

PX1: PX4 contains handwritten modifications reflecting that Hernandez “did/did not appear in

person” at a March 21, 2002 hearing, but the corresponding document in the clerk’s record does not

indicate whether or not Hernandez appeared. Trial testimony reflected that, consistent with PX4,

Hernandez did not attend this hearing, although he had notice and was not incarcerated.




                                                16
               PX2 is a certified copy of the March 2002 family service plan. PX2 does not contain

Hernandez’s signature, but the corresponding document in the clerk’s record does contain

Hernandez’s signature.

               Hernandez’s counsel did not object to the admission of any of the challenged exhibits

at trial. In order to complain on appeal about the admission of evidence, an appellant must have

made a timely objection in the trial court specifying the grounds for the objection, otherwise error

is waived. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1; Bushnell v. Dean, 803 S.W.2d 711,

712 (Tex. 1991); In re C.Q.T.M., 25 S.W.3d 730, 733 (Tex. App.—Waco 2000, pet. denied). Error

in the admission of evidence cannot be raised for the first time on appeal. Tex. R. App. P. 33.1;

Bushnell, 803 S.W.2d at 712.

               Moreover, Hernandez has not demonstrated how the discrepancies in these exhibits

prejudiced him. He does not suggest that there are other inaccuracies in the documentary evidence

in this case. He argues only that the failure of the Department to “offer accurate copies” in trial or

the “failure of the clerk to maintain accurate copies of court record would seem to invoke issues of

due process and fundamental fairness in the proceeding before the court.” Based on this equivocal

suggestion, he asks this Court to hold that he was denied due process. He cites no authority for his

position.

               We hold that any discrepancies were not material to the judgment and that any error

in their admission was harmless. We overrule Hernandez’s seventh issue.




                                                 17
                                        CONCLUSION

               Having overruled Hernandez’s first, second, third, fourth, and seventh issues on

appeal, we have no need to consider his fifth or sixth issues. We affirm the decree of termination.




                                             __________________________________________

                                             Bob Pemberton, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: March 10, 2005




                                                18
