              In the
         Court of Appeals
 Second Appellate District of Texas
          at Fort Worth
        ___________________________
             No. 02-19-00231-CV
        ___________________________

IN THE INTEREST OF J.S. AND R.S., CHILDREN




     On Appeal from the 325th District Court
             Tarrant County, Texas
         Trial Court No. 325-645471-18


  Before Sudderth, C.J.; Womack and Wallach, JJ.
    Memorandum Opinion by Justice Wallach
                           MEMORANDUM OPINION

      After a bench trial, the trial court terminated the parent-child relationships

between T.S. (Mother) and J.S. (Father) and their teenaged daughters J.S. (Jackie) and

R.S. (Rachel) (collectively, the girls).1 Only Mother appeals. In two issues, she

contends that the termination order was void because the girls were not before the

court and that the evidence is legally and factually insufficient to support the

constructive abandonment findings. Because we hold that the termination order is

not void and that the evidence is legally and factually sufficient to support the

constructive abandonment findings, we affirm the trial court’s termination order.

                     FACTS AND PROCEDURAL HISTORY

      Jackie and Rachel’s paternal aunt (Aunt) filed a petition for sole managing

conservatorship of the girls and their two younger siblings in April 2018. By June

2018, Aunt had decided that she no longer wanted custody of the girls and wanted

them out of her home, and the girls alleged that they were being abused and also

requested to be removed from Aunt’s home. Aunt dropped the girls from her

pleadings with an amended petition, and the Texas Department of Family and

Protective Services (Department) filed a petition seeking conservatorship of the girls


      1
        We use aliases to refer to the subject children and their family. See Tex. R.
App. P. 9.8(b)(2) (requiring courts to use aliases to refer to minors in parental-rights
termination cases and, if necessary to protect the minors’ identities, to also use aliases
to refer to their family members); see also Tex. Fam. Code Ann. § 109.002(d).



                                            2
and termination of their parents’ rights, followed by a motion to sever the suit

involving the girls from the suit involving their siblings. The associate judge severed

the suit involving the girls from the suit involving their siblings and ordered in writing

“that the clerk shall assign a new cause number to the severed cause of action, and

shall notify each party of the new cause number. All future filings relating to the suit

affecting the [girls] shall be made in the new cause number.” The severance order

also ordered the clerk to place copies of the following documents into the new case

file:

        l.    the live pleadings;

        2.    any interlocutory judgments of termination with respect to the
              above-named child[ren];
        3.    copies of documents relating to service of process on the parents
              of said child[ren];
        4.    and any other document requested by a party or attorney to be
              included in the severed file as relevant to an interlocutory decree
              of termination.
Nevertheless, the parties and the trial court continued to use the cause number from

the siblings’ case (the old trial court cause number) on documents in the girls’

termination case instead of the new cause number.

        The Department pursued termination of Mother’s parental rights to the girls

based on the girls’ best interests and the constructive abandonment ground. Mother

was in prison and did not personally appear at the termination trial, but her appointed

counsel did appear.


                                            3
Only the caseworker testified. She stated:

•     The girls had lived “with various friends and relatives and then wound
      up with . . . [A]unt in April of 2018”;

•     The girls had “significant behavioral problems” involving self-harm and
      aggression, and Aunt did not want them in the home with the younger
      children she was raising;

•     The Department tried to find a family placement for the girls, reaching
      out to family members and family friends, to no avail;

•     When the caseworker received the case in June 2018, Aunt and the girls
      did not know where Mother was;

•     Aunt had not seen Mother in several years;

•     Aunt told the caseworker that Mother was a drug addict and was
      “usually on and off homeless”;

•     Mother “had not been involved in the girls’ lives very consistently for
      quite some time”;

•     The girls had not lived with Mother for about six years;

•     A “pretty bare minimum” service plan was created for Mother; the
      Department planned to tailor it to meet her needs when she was located
      and met with the caseworker;

•     Mother called the caseworker after she was released from Tarrant
      County Jail in August 2018;

•     Mother and the caseworker set an appointment to meet about the
      service plan and visits with the girls;

•     The caseworker gave Mother the address of the CPS office;

•     Mother did not give the caseworker any contact information;

•     Mother did not appear for the appointment or otherwise contact the
      caseworker;



                                    4
      •      In March 2019, the caseworker discovered that Mother was back in
             Tarrant County Jail and visited her;

      •      Mother expressed an interest in voluntarily relinquishing her parental
             rights and intended to do so;

      •      The girls requested to visit Mother in jail and did so one time in April
             2019;

      •      Mother never otherwise visited the girls during the pendency of the case,
             nor did she ask to;

      •      In April 2019, Mother was convicted of three felonies, including
             possession of four or more but less than 200 grams of heroin;

      •      The Department made reasonable efforts to return the girls to Mother;

      •      Mother did not regularly visit or maintain significant contact with the
             girls;

      •      Mother did not show that she could provide the girls with a safe and
             stable environment; and

      •      Mother’s parental rights should be terminated on the constructive
             abandonment ground.
      The three exhibits admitted show that all three of Mother’s convictions were

for drug-related felonies. The exhibits also show that Mother was in jail from mid-

July 2018 to mid-August 2018, from mid-September 2018 to mid-October 2018, and

from mid-January 2019 until she was sentenced to prison in April 2019.

      Based on the caseworker’s testimony and the three exhibits, the trial court

granted the Department’s termination petition.

      The trial court’s original termination order, signed May 31, 2019, bears the old

trial court cause number, as do Mother’s original notice of appeal, the original clerk’s


                                           5
record, and the original reporter’s record. On July 2, 2019, after Mother filed her

notice of appeal and after the original clerk’s record and reporter’s record were filed in

this court, the trial court signed a nunc pro tunc order of termination bearing the new

trial court cause number. Mother’s notice of appeal and the record have subsequently

likewise been amended to reflect this change.

                                    DISCUSSION

I.    Using the wrong cause number did not void the termination proceedings
      or the termination order.

      In her first issue, Mother contends that the termination order is void because

the girls were not before the court and that the nunc pro tunc order of termination

could not cure this alleged judicial error. We hold that the trial court’s using the

wrong cause number in the girls’ termination case, both in the proceedings and on the

documents, was a clerical error cured by the nunc pro tunc order of termination; the

termination order is therefore not void.

      Mother argues that the girls were not before the court after the severance, but

the severance order split a single case into two cases in the same court. The record

does not reflect that either case was transferred out of the 325th District Court. Thus,

the girls remained before the court. Mother also asserts that the severance order was

a proper judicial act and not a clerical error. We agree with Mother that nothing

about the severance appears improper. Mother argues, though, that the nunc pro

tunc order of termination



                                            6
      was not merely to correct a clerical error regarding the final order’s cause
      number. . . . The [order] was attempting to correct an oversight by
      everyone but ultimately a judicial error. The fatal judicial error being
      that the trial court presided over numerous hearings and a final trial
      where the subject children had been judicially severed from the case.

She cites no support for these assertions, and we reject them.

      Whether an error corrected by a nunc pro tunc order is clerical or judicial is a

legal issue that we review de novo. Escobar v. Escobar, 711 S.W.2d 230, 232 (Tex.

1986); In re M & O Homebuilders, Inc., 516 S.W.3d 101, 109 (Tex. App.—Houston [1st

Dist.] 2017, orig. proceeding). When making our decision, we look at the trial court’s

actual rendition, not what it could or should have rendered. Escobar, 711 S.W.2d at

231; M & O Homebuilders, Inc., 516 S.W.3d at 109. A judicial error stems from a legal

or factual mistake that requires judicial reasoning to correct; a clerical error involves

an incorrect transcription or entry of the judgment.        M & O Homebuilders, Inc.,

516 S.W.3d at 109. The trial court’s mistaken use of the old trial court cause number

instead of the new trial court cause number was a clerical error remedied by the nunc

pro tunc order of termination.             See In re N.S., No. 04-14-00291-CV,

2015 WL 4932850, at *4 (Tex. App.—San Antonio Aug. 19, 2015, no pet.) (mem. op.)

(holding “omission of [a] . . . cause number from [an] order was clerical and could be

corrected by judgment nunc pro tunc”); Meeks v. Meeks, 783 S.W.2d 823, 823–24 (Tex.

App.—Fort Worth 1990, no writ) (characterizing the filing of an order under the

wrong cause number as clerical and noting that the appellee “caused nunc pro tunc

orders to be filed” to correct it). Mother’s reliance on a case reversing based on

                                           7
judicial error is misplaced. See Finlay v. Jones, 435 S.W.2d 136, 138–39 (Tex. 1968)

(orig. proceeding) (holding the trial court’s changing service facts in its nunc pro tunc

judgment was judicial error invalidating that judgment).

      Further, using the old trial court cause number did not cause any confusion to

the parties. All the parties and the trial court operated under the same misconception

regarding the cause number.       The trial court rendered one final judgment—the

termination order, and Mother appealed that termination order, no matter what cause

number the written judgment bore. See, e.g., LaGoye v. Victoria Wood Condo. Ass’n,

112 S.W.3d 777, 782 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“[W]e find

that the misnumbering caused no confusion regarding the judgment from which

LaGoye seeks to appeal.”).

      As other courts have rationalized, “A party should not be punished for failure

to comply with the terms of an order of severance ignored by both the opposing party

and the court.” Blankenship v. Robins, 878 S.W.2d 138, 139 (Tex. 1994) (citations and

internal quotation marks omitted) (holding the motion for new trial and appeal bond

filed in the severed cause number instead of the original cause number invoked

appellate court jurisdiction of the appeal of the judgment in the original cause

number); Windsor v. Fleming, No. 10-14-00392-CV, 2019 WL 3804484, at *11 n.3 (Tex.

App.—Waco Aug. 7, 2019, no pet. h.) (mem. op.) (noting that Windsor’s filing several

documents in the original cause number instead of the new cause number “d[id]

not . . . affect [the Waco court’s] analysis” of his appellate issues). “Instead, the

                                           8
decisions of the courts of appeals should turn on substance rather than procedural

technicality.” Blankenship, 878 S.W.2d at 139 (citations and internal quotation marks

omitted); Windsor, 2019 WL 3804484, at *11 n.3.; cf. Alaimo v. U.S. Bank Trust Nat’l

Ass’n, 551 S.W.3d 212, 218, 219 (Tex. App.—Fort Worth 2017, no pet.) (holding the

judgment from the underlying action void because it was signed after the expiration of

the trial court’s plenary power and declining to treat that judgment as if it were

correctly filed in the bill of review proceeding because “[W]e see a difference between an

inadvertent error in the numbering or styling of documents and pleadings and what occurred here,”

which was “[w]illful disregard of the law”) (emphasis added).

         Because the trial court had jurisdiction over the girls and the termination suit

and properly rendered an appealable termination order, we overrule Mother’s first

issue.

II.      Clear and convincing evidence supports the constructive abandonment
         findings.

         In Mother’s second issue, she contends that the evidence is legally and factually

insufficient to support the trial court’s constructive abandonment findings.

                                 A. Standards of Review

         For a trial court to terminate a parent–child relationship, the Department must

prove two elements by clear and convincing evidence: 1) that the parent’s actions

satisfy one ground listed in family code section 161.001(b)(1); and 2) that termination

is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re E.N.C.,



                                               9
384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). 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 sought to be established.” Tex. Fam.

Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802.

      Mother does not challenge the trial court’s best-interest finding. She challenges

only the constructive abandonment findings. To determine whether the evidence is

legally sufficient to support the constructive abandonment findings, we look at all the

evidence in the light most favorable to the challenged findings to determine whether a

reasonable factfinder could form a firm belief or conviction that the findings are true.

In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); see Tex. Fam. Code Ann.

§ 161.001(b)(1)(N). We assume that the factfinder settled any evidentiary conflicts in

favor of its findings if a reasonable factfinder could have done so. J.P.B., 180 S.W.3d

at 573. We disregard all evidence that a reasonable factfinder could have disbelieved,

and we consider undisputed evidence even if it is contrary to the findings. Id. That is,

we consider evidence favorable to the findings if a reasonable factfinder could, and we

disregard contrary evidence unless a reasonable factfinder could not. See id. The

factfinder is the sole judge of the witnesses’ credibility and demeanor. In re J.O.A.,

283 S.W.3d 336, 346 (Tex. 2009).

      We must perform “an exacting review of the entire record” in determining the

factual sufficiency of the evidence supporting the constructive abandonment findings.

In re A.B., 437 S.W.3d 498, 500 (Tex. 2014); see Tex. Fam. Code Ann.

                                           10
§ 161.001(b)(1)(N). Nevertheless, we give due deference to the factfinder’s findings

and do not supplant them with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex.

2006). We review the whole record to decide whether a factfinder could reasonably

form a firm conviction or belief that Mother constructively abandoned the girls. See

Tex. Fam. Code Ann. § 161.001(b)(1)(N); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If

the factfinder reasonably could form such a firm conviction or belief, then the

evidence is factually sufficient. C.H., 89 S.W.3d at 18–19.

                        B. Constructive Abandonment Law

        To establish constructive abandonment under Section 161.001(b)(1)(N), the

Department had to prove by clear and convincing evidence that: (1) Mother had

“constructively abandoned the [girls,] who ha[d] been in [the Department’s]

permanent or temporary managing conservatorship . . . for not less than six months”;

(2) the Department made reasonable efforts to return the girls to Mother; (3) Mother

had not regularly visited or maintained significant contact with the girls; and

(4) Mother had demonstrated an inability to provide the girls with a safe environment.

Tex. Fam. Code Ann. § 161.001(b)(1)(N); see In re A.S., No. 02–16–00284–CV,

2017 WL 371496, at *5 (Tex. App.—Fort Worth Jan. 26, 2017, pet. denied) (mem.

op.).

                                     C. Analysis

        Mother contends that the trial court’s constructive abandonment findings

“were vague, speculative and remote and that there was not clear and convincing

                                          11
evidence of constructive abandonment.” Mother does not contest that the girls were

in the Department’s care for six months, but she (1)“strongly challenges the finding

that the Department made reasonable efforts to return the [girls] to [her]”; (2) asserts

“that there can be no finding that she failed to maintain visitation or . . . contact”; and

(3) claims that “[t]here was little or no evidence of whether she had demonstrated an

inability to provide the [girls] with a safe environment.”

                                1. Reasonable Efforts

      Mother challenges the evidence supporting the “reasonable efforts” element.

Tex. Fam. Code Ann. § 161.001(b)(1)(N). She contends that the record does not

show any effort by the caseworker to find her after the caseworker received the case

in June 2018 until Mother called the caseworker in August 2018 or after that

telephone call until the caseworker learned Mother was in jail in March 2019. Mother

further contends that there is no evidence that any Department employee ever

presented a service plan to her, explained the available services, or discussed what

Mother was expected to do.         However, the trial court heard the caseworker’s

testimony that

      •      The Family Based Safety Services caseworker who previously staffed the
             case attempted to locate Mother but could not;

      •      When the current caseworker received the case in June 2018, she asked
             Aunt and the girls about Mother’s whereabouts and contact information,
             and they did not know where Mother was or how to reach her;




                                            12
      •      A minimal service plan had been created for Mother and would be
             tailored for her specifically when Mother was found and the caseworker
             met with her;

      •      Mother called the caseworker in August 2018, and they scheduled a
             meeting at the CPS office to go over the service plan and set up
             visitation;

      •      The caseworker gave Mother the address of the office, but Mother did
             not give the caseworker any contact information;

      •      Mother did not appear for the meeting or otherwise contact the
             caseworker;

      •      The caseworker saw Mother for the first time in March 2019 after
             discovering that she was in Tarrant County Jail, and Mother
             communicated her intention to sign an affidavit of relinquishment;

      •      The Department tried without success to find a family placement for the
             girls; and

      •      The Department made reasonable efforts to return the girls to Mother.
      Applying the appropriate standards of review, we hold that the evidence is

legally and factually sufficient to support the trial court’s finding that the Department

made reasonable efforts to return the girls to Mother. See C.G. v. Tex. Dep’t of Family

& Protective Servs., No. 03-18-00852-CV, 2019 WL 3367524, at *7 (Tex. App.—Austin

July 26, 2019, no pet.) (mem. op.) (“The caseworker persisted in trying to set up

appointments and assist Chad with work on his parenting service plan, and a lack of

communication was not the Department’s fault.”); In re G.T., No. 02-17-00279-CV,

2017 WL 6759036, at *4 (Tex. App.—Fort Worth Dec. 28, 2017, no pet.) (mem. op.)

(“A reasonable factfinder could form a firm conviction or belief that [the minor



                                           13
parent’s] running away [a few weeks after the service-plan discussion] did constitute

an unwillingness to complete the service plan as well as a rejection of the services

offered in the plan.”); Gamez v. Tex. Dep’t of Family & Protective Servs., No. 03-09-00190-

CV, 2009 WL 4456150, at *7 (Tex. App.—Austin Dec. 1, 2009, no pet.) (mem. op.)

(concluding in dicta that a parent’s failure to provide contact information and the

Department’s trying to find her and provide services to her while the case was

pending supported the “reasonable efforts” element of constructive abandonment).

              2. Lack of Regular Visitation and Significant Contact

       Regarding the visitation element, Mother alleges that the Department never

made her aware of the visitation and communication guidelines for the girls and that

besides the visit initiated by the girls in April 2019, there is no evidence that access to

the girls or any visits were offered to Mother. A parent fails to regularly visit or

maintain significant contact with children when “visits are intermittent or sporadic.”

C.G., 2019 WL 3367524, at *7. The evidence shows that Mother had not been a

consistent figure in the girls’ lives for several years and that they did not know how to

reach her when the caseworker received the case in June 2018. The evidence also

shows that Mother knew that the August 2018 meeting she chose not to attend with

the caseworker concerned visitation. Further, the evidence reveals that Mother never

asked to visit the girls; in fact, she expressed an intent to sign an affidavit of

relinquishment of her parental rights to the girls in March 2019, before the April

2019 visit between Mother and the girls that occurred because the girls requested it.

                                            14
Finally, the caseworker testified that Mother had not regularly visited or maintained

contact with the girls. Applying the appropriate standards of review, we hold that the

evidence is legally and factually sufficient to support the trial court’s finding that

Mother had not regularly visited or maintained significant contact with the girls. See

Tex. Fam. Code Ann. § 161.001(b)(1)(N); C.G., 2019 WL 3367524, at *7 (upholding

the finding that the father failed to visit regularly or maintain significant contact when

he left, slept, or used his phone during visits and there was no evidence that he

otherwise tried to phone or correspond with the children); In re T.T., No. 11-18-

00291-CV, 2019 WL 1716416, at *2–3 (Tex. App.—Eastland Apr. 18, 2019, no pet.)

(mem. op.) (upholding the constructive abandonment finding when evidence showed

that the father had not seen his child for years and that he did not try to contact the

child while the case was pending despite being informed how); In re C.J.B., No. 07-17-

00069-CV, 2017 WL 2822512, at *2 (Tex. App.—Amarillo June 28, 2017, pet. denied)

(mem. op.) (“[W]hile [the father] may not have been allowed visitation until he

fulfilled his service plan, that did not prevent him from communicating with the child

through other means.”); In re K.G., 350 S.W.3d 338, 355 (Tex. App.—Fort Worth

2011, pet. denied) (upholding the trial court’s finding on the visitation element based

on testimony that the parent visited once between September and December

2009 and did not visit between February and May 2010 or accept an alternative

visitation schedule); Gamez, 2009 WL 4456150, at *7 (concluding in dicta that

evidence that the parent’s last contact with the child had occurred more than a year

                                           15
before the trial and the parent’s failure to provide contact information supported the

visitation element of the constructive abandonment ground).

                     3. Inability to Provide Safe Environment

      Mother contends that the only evidence of her inability to provide the girls with

a safe environment was secondhand hearsay that she was often homeless and the

evidence of her confinement in jail and prison. Evidence a factfinder may consider in

deciding whether a parent has shown that she cannot provide her children with a safe

environment includes the parent’s failures to participate in services and to visit with

the children, the parent’s lack of stable housing, and past substance abuse, C.G.,

2019 WL 3367524, at *7; the parent’s lack of stable employment, see A.K. v. Tex. Dep’t

of Family & Protective Servs., No. 03-14-00450-CV, 2014 WL 6612609, at *4 (Tex.

App.—Nov. 21, 2014 no pet.) (mem. op.); and actions that led to the initial removal,

see In re M.R., J., No. 07-13-00440-CV, 2014 WL 2591616, at *5 (Tex. App.—Amarillo

May 9, 2014, no pet.) (mem. op.).

      The caseworker testified that the girls had not been in Mother’s care in the six

years before the removal and that the one time the girls visited with Mother during

the case had been at their request. The caseworker also stated that Mother did not

stay in contact with the caseworker or even begin services and had not shown an

ability to keep stable housing or stable employment. Additionally, the caseworker

stated that none of the girls’ other family members would let the girls live with them

after their removal from Aunt’s home. The evidence shows that Mother had been in

                                          16
jail at least three times during the pendency of the case and that she had recently been

sentenced to three years in prison for offenses related to her drug use. Finally, the

caseworker testified that Mother had not shown that she could provide the girls with a

safe, stable environment. Applying the proper standards of review, we hold that the

evidence is legally and factually sufficient to support the trial court’s finding that

Mother demonstrated that she could not provide the girls with a safe, stable

environment. See In re T.M., No. 2-09-145-CV, 2009 WL 5184018, at *5 (Tex. App.—

Fort Worth Dec. 31, 2009, pet. denied) (mem. op.) (“[T]he evidence establishes

Father’s inability to provide the children with any environment . . . much less a safe

environment, and the evidence is therefore legally and factually sufficient as to the

safe environment element of constructive abandonment.” (citations and internal

quotation marks omitted)).

                                     D. Resolution

         Having held that the evidence is legally and factually sufficient to support the

challenged findings on the elements of the constructive abandonment ground, we

overrule Mother’s second issue.

                                    CONCLUSION

         Having overruled Mother’s two issues, we affirm the trial court’s termination

order.




                                            17
                                   /s/ Mike Wallach
                                   Mike Wallach
                                   Justice


Delivered: October 31, 2019




                              18
