                                  NO. 07-01-0222-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  OCTOBER 19, 2001

                         ______________________________

               IN THE INTEREST OF K.B. AND J.B., MINOR CHILDREN
                       _________________________________

             FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                NO.59,921-D; HONORABLE DON EMERSON, JUDGE

                        _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Appellant Margaret Baca1 appeals a bench trial judgment involuntarily terminating

her parental rights to her two minor children, K.B. and J.B. By four points of error, she

contends the trial court erred in finding by clear and convincing evidence that (1) she

engaged in conduct or knowingly placed the children with persons who engage in conduct

which endangers the physical and emotional well-being of the children because the

evidence was legally or factually insufficient, (2) the termination of the parent-child

relationship was not in the best interest of the children because the evidence was legally

      1
       Although the order also terminated the parental rights of the father, he did not
appeal.
or factually insufficient, (3) she knowingly placed or allowed the children to remain in

conditions or surroundings which endanger their physical or emotional well-being because

the evidence was legally or factually insufficient, and (4) she constructively abandoned the

children because the evidence was legally or factually insufficient. Based on the rationale

expressed herein, we affirm.


       Although Margaret’s brief does not include a fact statement supported by record

references as required by Rule 38.1(f) of the Texas Rules of Appellate Procedure, in the

interest of justice, we have reviewed the entire record for disposition of this appeal. After

receiving a report of abuse and neglect, the Texas Department of Protective and

Regulatory Services (TDPRS) removed eight-year-old K.B. and two-year-old J.B. from

Benny and Margaret Baca’s custody and was appointed temporary managing conservator

on February 25, 1999. Shortly thereafter, on March 10, 1999, TDPRS was appointed

managing conservator and Margaret Baca was given the rights of possessory conservator,

which entitled her to scheduled visitations.


       Prior to being in custody of TDPRS, the children and Margaret Baca had been living

in a one-bedroom hotel room with Margaret’s fiancé.2 During this time, although Margaret

was on probation and had failed two urinalyses tests, she used other rooms at the hotel

to use and deliver drugs. Shortly after TDPRS was appointed managing conservator of



       2
           Not the natural father.

                                               2
the children, Margaret was offered the opportunity to participate in a Substance Abuse

Felony Treatment Program, but refused. TDPRS then developed a service plan in an

attempt to reunite the children with Margaret, whereby she would find employment,

maintain proper housing for the children, and attend a parenting class. On seven of

Margaret’s visits with the children, she was provided with a written copy of the plan and

oral explanations. However, even though she was informed that the services were free,

she made no effort to comply with the plan and failed to attend several scheduled

appointments. Margaret’s visits with her children became sporadic. She consistently

arrived late or did not attend at all. In response, TDPRS changed the visitation schedule

from one time per week to every other week. After December 1999, Margaret no longer

attended any scheduled visits with her children. Due to this lack of visitation and other

observations, TDPRS caseworkers testified, without objection, that it would be in the best

interest of the children to terminate the parent-child relationship as to both parents.


       In its judgment, the trial court made the following three findings as grounds for its

conclusion that termination of the parent-child relationship was justified:


       1. knowingly placed or knowingly allowed the children to remain in
       conditions or surroundings which endanger the physical or emotional well-
       being of the children;

       2. engaged in conduct or knowingly placed the children with persons who
       engaged in conduct which endangers the physical or emotional well-being
       of the children; and



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       3. constructively abandoned the children who have been in the permanent
       or temporary managing conservatorship of the Department of Protective and
       Regulatory Services or an authorized agency for not less than six months
       and: (1) the Department or authorized agency has made reasonable efforts
       to return the children to the parent; (2) the parent has not regularly visited
       ormaintainedsignificantcontactwiththechildren;and(3)theparenthasdemonstratedaninabilitytoprovidethechildwithasafeenvironment.



       The natural right existing between parents and their children is one of constitutional

dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination

proceedings must be strictly scrutinized. In Interest of G.M., 596 S.W.2d 846, 846 (Tex.

1980). A termination decree is complete, final, irrevocable, and divests for all time that

natural right as well as all legal rights, privileges, duties, and powers with respect to each

other except for the child’s right to inherit. Holick, 685 S.W.2d at 20. In proceedings to

terminate the parent-child relationship brought under section 161.001 of the Family Code,

the petitioner must establish one or more acts or omissions enumerated under subsection

(1) of the statute, and must additionally prove that termination of the parent-child

relationship is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon

Supp. 2001). Both elements must be established, and proof of one element does not

relieve the petitioner of the burden of proving the other. See Holley v. Adams, 544 S.W.2d

367, 370 (Tex. 1976).


       Because termination of parental rights is of such weight and gravity, due process

requires the petitioner to justify termination by clear and convincing evidence. Tex. Fam.

Code Ann. § 161.001 (Vernon Supp. 2001); In Interest of G.M., 596 S.W.2d at 847. This

                                                               4
standard is defined as that measure or degree of proof which will produce in the mind of

the trier of fact a firm belief or conviction as to the truth or the allegations sought to be

established. Id. Although the clear and convincing burden of proof required at the trial

level is well settled, appellate courts have struggled to reconcile this burden of proof with

the standard for appellate review of the sufficiency of evidence. As this Court has

previously noted, the clear and convincing standard does not alter the rules generally

applicable when appellate courts review factual findings. In Interest of M.D.S., 1 S.W.3d

190, 197 (Tex.App.–Amarillo 1999, no pet.).


       Standards of Review--Legal and Factual Sufficiency of the Evidence


       When presented with a challenge to the legal sufficiency of the evidence, the

reviewing court must consider all of the evidence in a light most favorable to the party in

whose favor the finding was rendered indulging every reasonable inference in that party's

favor. Associated Indem. Corp. v. Cat Contracting, 964 S.W.2d 276, 285-86 (Tex. 1998).

If there is any evidence of probative force to support the finding, the finding must be

upheld. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). In

reviewing a challenge to the factual sufficiency of the evidence the court must consider,

weigh, and examine all of the evidence of record. Plas-Tex, Inc. v. U.S. Steel Corp., 772

S.W.2d 442, 445 (Tex. 1989). The court should only set aside a finding if the evidence

which supports the finding is so weak as to be clearly wrong and manifestly unjust. Cain

v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

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       In the present case, the trial court ordered termination under sections

161.001(1)(D), (E), and (N) of the Family Code. These subsections provide for termination

if the court finds by clear and convincing evidence that the parent has:


       (D) knowingly placed or knowingly allowed the child to remain in conditions
       or surroundings which endanger the physical or emotional well-being of the
       child;
       (E) engaged in conduct or knowingly placed the child with persons who
       engaged in conduct which endangers the physical or emotional well-being
       of the child;
       (N) constructively abandoned the child who has been in the permanent or
       temporary managing conservatorship of the Department of Protective and
       Regulatory Services or an authorized agency for not less than six months,
       and:
              (i) the department or authorized agency has made reasonable
              efforts to return the child to the parent.
              (ii) the parent has not regularly visited or maintained
              significant contact with the child; and
              (iii) the parent has demonstrated an inability to provide the
              child with a safe environment.


Tex. Fam. Code Ann. § 161.001(1)(D), (E) & (N) (Vernon Supp. 2001). The Code also

requires that termination be in the best interest of the child. § 161.001(2) (Vernon Supp.

2001). In sum, a finding of a violation of either sections (D), (E), or (N), and a finding that

termination is in the best interest of the child will support a judgment terminating the

parent-child relationship.




                                              6
       We will first consider Margaret’s fourth point, which challenges the legal and factual

sufficiency of the evidence that she constructively abandoned her children in temporary

or permanent managing conservatorship of the TDPRS. In order to involuntarily terminate

parental rights under section 161.001(N), the evidence must show : (1) the child has been

in the permanent or temporary managing conservatorship of TDPRS for not less than six

months; (2) the department has made reasonable efforts to return the child to the parent;

(3) the parent has not regularly visited or maintained significant contact with the child; and

(4) the parent has demonstrated an inability to provide the child with a safe environment.

In re D.T., 34 S.W.3d 625, 633 (Tex.App.–Fort Worth 2000, pet. denied).


       On March 10, 1999, after a brief period as temporary managing conservator,

TDPRS was named permanent managing conservator. At the time of the hearing in

January of 2001, TDPRS had been the temporary or permanent managing conservator for

at least six months, meeting the requirements of the first element. Element two requires

that the department make reasonable efforts to return the children. From February 17,

1999 until October 22,1999, the first case worker for TDPRS attempted to return the

children by creating a service plan which detailed the requirements that Margaret should

complete in order to have her children returned. Margaret was given seven copies of the

plan, each with an oral explanation. The case workers testified that TDPRS had made

more than sufficient efforts to return the children and that Margaret made no effort to have

the children returned. Margaret never completed the service plan even after she was


                                              7
informed that the services were scheduled and paid for and all she had to do was keep the

appointments. Included in the service plan was an assessment to be completed by Leta

Acker. Acker contacted the case worker for TDPRS and stated she would no longer work

with Margaret because she had missed two four-hour scheduled assessments. From this

evidence, the trial judge could have concluded that the department made reasonable

attempts to return the children as required by the second element.


       The next element of constructive abandonment is that the parent has failed to visit

or maintain regular contact with the child. Margaret was incarcerated in April 2000 and

remained in jail at the time of the hearing. We recognize this period alone is not sufficient

to establish constructive abandonment, id. at 634; however, before she was incarcerated

Margaret did not regularly visit the children. When the children were taken into custody,

Margaret was allowed weekly visits. She began to miss visits and arrive thirty to forty-five

minutes late when she did attend. TDPRS then changed the visitation schedule to every

other week. Margaret’s visitation was sporadic and in December 1999, she admittedly

made her last visit four months prior to her incarceration. The only contact Margaret

claims occurred after this date is through her sister. The trial judge could have found that

Margaret did not regularly visit her children.


       The final element necessary in finding constructive abandonment is failure to

provide the child with a safe environment. In her brief, Margaret admits that she “made

error in judgment and has on isolated occasion engaged in conduct that she regrets.”

                                             8
Further, soon after Margaret’s children were placed with TDPRS, she was asked to

complete a Substance Abuse Felony Treatment Program as an alternative to incarceration

for probation violation, but she refused and was incarcerated. As a result of her failure to

utilize treatment, the children remained in the custody of the TDPRS while she was

incarcerated.    Margaret also failed two urinalyses while she was on probation.

Accordingly, her violation of the terms of her probation created an unsafe environment for

her children and we conclude that evidence is legally and factually sufficient to establish

that Margaret constructively abandoned her children. Margaret’s fourth point of error is

overruled.


       By her second point of error, Margaret contends the evidence was legally and

factually insufficient to support a finding that termination was in the best interest of her

children.3   Factors to be considered when making the determination as to whether

termination is in the child’s best interest include: the desires of the child, the emotional and

physical needs of the child now and in the future, the emotional and physical danger to the

child now and in the future, parenting abilities, acts or omissions indicating the existing

parent-child relationship is not a proper one, and any excuse for the acts or omissions.



       3
        TDPRS contends that Margaret waived this point by failing to cite to authorities to
support her proposition. However, the Supreme Court’s policy is to construe the Texas
Rules of Appellate Procedure liberally so that decisions turn on substance rather than
procedural technicality. Motor Vehicle Bd. of Tex. v. EPIADA, 1 S.W.3d 108, 111 (Tex.
1999). Thus, because termination of parental rights is a right of constitutional dimension,
we will consider Margaret’s contention. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

                                               9
In Interest of B.S.T., 977 S.W.2d 481, 485 (Tex.App.--Houston [14th Dist.] 1998, no pet.).

Without any objection, the two case workers for TDPRS testified that in their opinion,

termination of parental rights was in the best interest of the children and that the children

expressed desires to be adopted and live in new homes. Because evidence of a parent’s

history, admissions, and conduct relating to drug abuse, and her inability to maintain a

lifestyle free from arrests and incarcerations is also relevant to a best interest

determination, see Holley, 544 S.W.2d at 370, the evidence establishing that Margaret

violated probation, refused drug treatment, and used and delivered drugs can also be used

to support the court’s finding. We therefore conclude that the evidence was legally and

factually sufficient to support a finding that termination was in the best interest of the

children. Margaret’s second point of error is overruled. Our disposition of points of error

two and four pretermits consideration of points one and three. Tex. R. App. P. 47.1.


       Accordingly, the judgment of the trial court is affirmed.



                                          Don H. Reavis
                                            Justice



Do not publish.




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