

 
Reversed
and Rendered in Part, and Reversed and Remanded in Part, and Opinion filed
March 4, 2008.
 
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-07-00140-CV
____________
 
IN THE INTEREST OF A.S., D.S., AND
L.A.S.
 

 
On Appeal from the 314th
District Court
Harris County, Texas
Trial Court Cause No. 2006-02662J
 

 
O P I N I O N
This is an appeal from a judgment terminating appellants= parental rights
to their minor children.  In five issues each, appellants challenge the legal
and factual sufficiency of the evidence underlying the findings in the
termination order and the appointment of appellee Department of Family &
Protective Services (Athe Department@) as sole managing
conservator.  We reverse and render in part, and reverse and remand in part.




I. Factual and Procedural Background
Veronica is the mother of A.S., D.S., and L.A.S.[1] 
Alan is the father of A.S. and D.S.[2]
On March 10, 2006, a day after the birth of L.A.S., the Department received
information that Veronica and L.A.S. had tested positive for marijuana.  The
hospital social worker who reported L.A.S.=s positive test
result for marijuana to the Department stated that L.A.S. Awas doing fine and
not showing any signs of health problems.@  On March 13,
2006, the trial court named the Department as emergency temporary managing
conservator of A.S., D.S., and L.A.S.  At this time, A.S. was 3 years old, D.S.
was 2 years old, and L.A.S. was 3 days old.
Veronica=s childhood was traumatic due to domestic
violence and her parents= alcohol and drug use.  She became
pregnant with L.P. when she was 13 years old.[3] 
After L.P. was born, Veronica met and married Martin De Leon (ADe Leon@).  Veronica
remained married to De Leon for approximately one year during which time De
Leon physically abused her.  When De Leon tried to harm L.P., Veronica left
with L.P. and went to her mother=s home.  In 2001,
she spent three months at a women=s shelter where
she obtained domestic violence counseling.




In January 2002, Veronica began a relationship with Alan. 
In October 2002, Veronica gave birth to their son, A.S.  In October 2003, their
second son, D.S., was born.  From 2002 to 2005, Veronica, Alan, L.P., A.S., and
D.S. lived together in Beaumont.  During this time, three referrals were made
to Child Protective Services (ACPS@).[4] 
In April 2003, CPS received a referral alleging neglectful supervision of L.P.
by Veronica and Alan.  The report, however, was apparently never validated
because the family moved.  In July 2004, Alan spanked L.P., who was four years
old at the time, for wetting his pants.  Though the spanking left no marks or
bruises, Veronica went to a shelter with L.P. where she spoke with a police
officer and a CPS officer.  After this incident, Veronica spoke with Alan about
the spanking.  Their relationship was not abusive at that time and Alan had
never inappropriately disciplined A.S. or D.S.
In 2005, after Veronica and Alan=s home in Beaumont
was destroyed by Hurricane Rita, the family moved to Houston and stayed with
Alan=s mother. 
According to the 4 C=s report, Veronica filed a police
complaint that Alan had again over-disciplined L.P.  The Department
investigated the complaint and advised Veronica to move into a shelter. 
Veronica stayed in a shelter for two or three weeks and only returned home
after Alan convinced her that he would never again harm L.P. or any of their
children.[5] 
Veronica later decided to send L.P. to live with his great-aunt in El Campo
because the aunt loved L.P. and wanted to care for him, not because she feared
that Alan would harm him.  During this time, Veronica was pregnant with L.A.S. 
She saw a gynecologist in Beaumont while pregnant with L.A.S. but was unable to
obtain pre-natal care once the family relocated to Houston.[6]




Veronica testified that Alan pushed her and pulled her hair
on two occasions early in their relationship, but she denied that he ever
struck her.  While it is unclear when these incidents occurred, the record
indicates that the children did not witness them.  On occasion, she and Alan
raised their voices while arguing, and she said it is possible that the
children overheard these arguments.  The only other evidence of domestic
violence was from the Department=s case worker,
Kateika Bonner (ABonner@), who testified
that Veronica told her that she and Alan had Agot[ten] into it
one night.@
In April 2006, following removal of the children from the
family home, the Department prepared a family service plan (Athe plan@) with a long-term
goal of family reunification.  Bonner met with Veronica to discuss the steps
that she needed to complete to be reunified with her children.[7] 
Veronica began immediately working toward completion of the requirements.  She
visited A.S. and D.S. every two weeks and L.A.S. weekly.  Bonner testified that
the visits went well and that Veronica bonded with all three children during
these visits.  Veronica wrote often to Aher child with
whom she had contact.@[8]  Alan visited his
children once but Bonner was unable to observe the visit because she was in a
training class at the time.




In June 2006, Veronica and Alan were indicted on charges of
aggravated robbery.   The Department subsequently placed the children in foster
homes.[9] 
Bonner spoke with several of Veronica and Alan=s relatives
regarding placement of the children, including Veronica=s mother (AMs. Pena@) and Alan=s mother. 
According to Bonner, her supervisor told her that placing the children with Ms.
Pena would be problematic because of her criminal history.[10] 
Placement of the children with the paternal grandmother was not an option
because the grandmother=s boyfriend did not have a social security
number.  However, the Department did not conduct a home study on either
grandmother to determine whether placement of the children would be otherwise
appropriate.
A bench trial was held on January 18, 2007.[11] 
At the time of trial, the children remained in foster care and no prospective
adoptive homes had been identified.  In closing arguments, both Veronica=s attorney and the
guardian ad litem requested that the trial court order the Department to
complete a home study on Ms. Pena.  The guardian ad litem informed the trial
court that she did not believe the Department had met its evidentiary burden
supporting termination of Veronica and Alan=s parental
rights.  Upon recessing the proceedings for one week, the trial court directed
the Department to conduct a home study on Ms. Pena.  However, no home study was
ever conducted.  On January 25, 2007, the trial court terminated Veronica=s parental rights
to A.S., D.S., and L.A.S., and Alan=s rights to A.S.
and D.S.  The court also appointed the Department as sole managing conservator
of the children.
II. Standard of Review




Involuntary termination of parental rights is a serious
matter implicating fundamental constitutional rights.  Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985).  Due to the severity and permanency of the
termination of parental rights, the burden of proof at trial is heightened to
the clear and convincing standard.  See Tex. Fam. Code ' 161.001; In re
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). A>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.@  Tex. Fam. Code ' 101.007; In re
J.F.C., 96 S.W.3d at 264.
When reviewing factual findings required to be made by
clear and convincing evidence, we apply a standard of review that reflects this
burden of proof.  In re S.M.L., 171 S.W.3d 472, 476 (Tex. App.CHouston [14th
Dist.] 2005, no pet.).  When reviewing the legal sufficiency of the evidence,
we consider all of the evidence in the light most favorable to the finding to
determine whether a reasonable factfinder could have formed a firm belief or
conviction that the finding was true.  Id. (citing In re J.F.C.,
96 S.W.3d at 266).  In doing so, we assume the factfinder resolved disputed
facts in favor of the finding if a reasonable factfinder could do so, and we
disregard all evidence that a reasonable factfinder could have disbelieved or
found to have been incredible.  Id.  However, because of the heightened
standard, we must also be mindful of any undisputed evidence contrary to
the finding and consider that evidence in our analysis.  In re J.F.C.,
96 S.W.3d at 266 (ADisregarding undisputed facts that do not
support the finding could skew the analysis of whether there is clear and
convincing evidence.@).
Under a factual sufficiency review, we also must determine
whether a factfinder could reasonably form a firm belief or conviction about
the truth of the allegations.  In re S.M.L., 171 S.W.3d at 476.  When
reviewing a factual sufficiency challenge, the analysis is somewhat different
in that we must consider all of the evidence equally, both disputed and
undisputed.  In re J.F.C., 96 S.W.3d at 266.  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 have reasonably formed a firm belief or conviction, then the evidence is
factually insufficient.  In re S.M.L., 171 S.W.3d at 476 (citing In
re J.F.C., 96 S.W.3d at 266).
III. Analysis




In order to terminate parental rights in Texas, the State
bears the burden to prove the following: (1) the parent committed one or more
acts specifically listed in section 161.001(1) of the Texas Family Code as
grounds for termination; and (2) termination is in the child=s best interest.  See Tex. Fam. Code ' 161.001; In re
J.L., 163 S.W.3d 79, 84 (Tex. 2005);  In re U.P., 105 S.W.3d 222,
229 (Tex.App.CHouston [14th Dist.] 2003, pet. denied).  Here, the
trial court found that termination was warranted under three separate statutory
grounds and that termination would be in the children=s best interest. 
The trial court also appointed the Department as sole managing conservator of
appellants= children.  In their first three issues, Veronica and
Alan challenge the legal and factual sufficiency of the evidence of the
statutory grounds for termination.  In their fourth issue, they challenge the
legal and factual sufficiency of the evidence that termination is in the
children=s best interest. 
In their fifth issue, Veronica and Alan challenge the appointment of the
Department as sole managing conservator of their children.
A.      Statutory
Grounds for Termination
The Department sought to terminate appellants= parental rights
under subsections (D), (E), and (N) of section 161.001 of the Family Code,
which provide for termination if the trial court finds by clear and convincing
evidence that the parent has done the following:
(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; [or]
. . . . 
(N) constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of the Department of Family and Protective
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 ' 161.001(1)(D),
(E) & (N).
Subsections (D) and (E) both focus on endangerment, but
they differ with regard to the source and proof of endangerment.  In re
S.M.L., 171 S.W.3d at 477.  Subsection (D) concerns the child=s living
environment, rather than the parent=s conduct, though
parental conduct is certainly relevant to the child=s environment.  Id;
In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.CFort Worth 2003,
no pet.).  Although the parent need not have certain knowledge that an actual
injury is occurring, the parent must at least be aware of the potential for
danger to the child in such an environment and must have disregarded that
risk.  In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.CTyler 2003, no
pet.).  Living conditions that are merely Aless-than-ideal@ do not support a
finding under this section.  Texas Dep=t of Human Svcs.
v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  Under subsection (E), the cause of
the endangerment must be the direct result of the parent=s conduct and must
be the result of a conscious course of conduct rather than a single act or
omission.  In re J.T.G., 121 S.W.3d at 125.  Endangerment can be
exhibited by both actions and failures to act.  In re U.P., 105 S.W.3d
at 233.  We look first at subsection (D).
1.       Subsection
(D)
(a)     Veronica
In her first issue, Veronica argues that the evidence is
legally and factually insufficient to terminate her parental rights under
subsection (D) because (1) the Department offered no evidence of the
environment in which A.S. and D.S. lived; (2) she never had custody of L.A.S.
and, therefore, could not have exposed him to an environment that endangered
his physical or emotional well-being; and (3) the evidence of domestic violence
was insufficient to show that she knowingly placed her children in an
endangering environment.




The Department introduced no evidence of the actual
physical surroundings or conditions of the children=s environment.  It
is also undisputed that the Department took L.A.S. into custody shortly after
he was born because he tested positive for marijuana.  However, the Department
argues that termination is supported by the following evidence: (1) prior to
her relationship with Alan, Veronica lived with an abusive husband, thereby
exposing her son, L.P., to an abusive environment; (2) Alan pushed Veronica and
pulled her hair on two occasions; (3) Alan over-disciplined L.P. twice; and (4)
Veronica engaged in criminal activity after the Department took her children
into custody.
First, the evidence of domestic violence committed by
Veronica=s first husband
toward Veronica and L.P. does not support the termination of Veronica=s parental rights
to A.S., D.S., and L.A.S. under subsection (D).  The abuse directed toward
Veronica and L.P. by her first husband, with whom she no longer lived, occurred
before A.S., D.S., and L.A.S. were born, and in a living environment to which
they were never exposed.  




The Department next contends that evidence that Alan pushed
Veronica and pulled her hair on two occasions, and over-disciplined L.P. twice,
demonstrates that Veronica provided an unsafe home environment.  Abusive or
violent conduct by a parent or other resident of a child=s home may produce
an environment that endangers the physical or emotional well-being of a child. 
In re D.C., 128 S.W.3d 707, 715 (Tex. App.CFort Worth 2004,
no pet.); In re C.L.C., 119 S.W.3d at 392B93.  With regard
to Alan=s conduct toward
Veronica, the evidence was undisputed that the incidents did not occur when the
children were around and that the children never witnessed Alan=s anger toward
her.  Regarding the occasions when Alan disciplined L.P., the first instance
involved spanking the child after he wet his pants.  Veronica testified that
the spanking left no marks.  The second instance occurred when Alan
over-disciplined L.P. due to stress over losing the family home during
Hurricane Rita.  The record is silent, however, as to how Alan disciplined him
or whether A.S. and D.S. witnessed the discipline.  Veronica went to a shelter
after the first incident and later spoke to Alan about the spanking.  Following
the second incident, Veronica stayed in a shelter for several weeks and only
returned home after Alan assured her that he would never again harm L.P. or any
of their children.  There is no evidence that any subsequent incidents
occurred.  Therefore, even assuming Alan=s behavior was
abusive and occurred in front of the children, Veronica took responsive action
to protect A.S. and D.S. by taking them out of the environment.
Third, the Department also asserts that Veronica=s actual and
alleged criminal activity after her children were taken into custody
demonstrates that she placed them in an endangering environment.  Specifically,
the Department refers to one week in April 2006 during which Veronica was
incarcerated for hindering the apprehension of a felon, and to her indictment
for aggravated robbery and subsequent incarceration in June 2006.
Imprisonment of a parent, standing alone, does not
constitute endangerment of a child=s emotional or
physical well-being.  In re S.M.L., 171 S.W.3d at 478.  Nonetheless, imprisonment is a factor the trial
court may consider.  See Boyd, 727 S.W.2d at 533; In re S.M.L.,
171 S.W.3d at 478.  As for her indictment, Veronica had not been convicted of
any crime at the time of trial and, therefore, what confinement she might
serve, if any, is speculative.  See In re D.T., 34 S.W.3d 625,
638B39 (Tex. App.CFort Worth 2000,
pet. denied) (finding appellant=s pending charges in other states amounted
only to Apossibilities@ as to her future
incarceration). 
We find the evidence legally and factually insufficient to
support terminating Veronica=s parental rights under section
161.001(1)(D) of the Family Code.  Accordingly, Veronica=s first point of
error is sustained.  
(b)     Alan
In his first issue, Alan contends that the evidence is
legally and factually insufficient to support termination of his parental
rights under subsection (D) because the record is silent as to (1) the physical
environment in which A.S. and D.S. lived prior to being taken into custody; (2)
how the children=s environment caused their physical and
emotional well-being to be endangered; and (3) his acts or omissions which
allegedly placed the children in a dangerous environment.




As previously noted, the Department did not present any
evidence of the actual physical surroundings of the children=s environment
prior to their being taken into custody.  In support of a finding under
subsection (D), the Department proffered evidence that Alan pushed Veronica and
pulled her hair on two occasions and over-disciplined L.P. twice.  However, as
discussed above, no evidence showed that A.S. and D.S. witnessed any of these
events.  We do not find such evidence to be of a clear and convincing nature so
as to support a finding of endangerment under subsection (D).
The Department also contends that Alan=s criminal
activity before and after the births of his children supports termination of
his parental rights under subsection (D).  Specifically, the Department refers
to his probationary status for a burglary offense committed in September 2001
and his indictment on charges of aggravated robbery in June 2006.  Several
Texas courts have recognized that the possibility of a parent=s incarceration
can negatively impact a child=s living environment and well-being and
may be sufficient to show endangerment.  In re S.M.L., 171 S.W.3d at 479
(AWhen parents are
incarcerated, they are absent from the child=s daily life and
are unable to provide support, and when parents like appellant repeatedly
commit criminal acts that subject them to the possibility of incarceration,
that can negatively impact a child=s living
environment and emotional well‑being.@); In re C.L.C.,
119 S.W.3d at 393; In re S.D., 980 S.W.2d 758, 763 (Tex.App.CSan Antonio 1998,
pet. denied).  Alan=s criminal acts, however, do not support a
finding under subsection (D) for several reasons.  First, Alan was given
probation for his burglary conviction, not imprisonment.  Second, as to his
indictment on charges of aggravated robbery, although he was incarcerated while
awaiting trial on that charge, there was no conviction at the time of the
termination hearing and, thus, the length of imprisonment, if any, was
speculative.  See In re D.T., 34 S.W.3d at 638B39.  In the
absence of other endangering conduct, Alan=s incarceration
while awaiting trial is insufficient to support termination under subsection
(D).  In re S.M.L., 171 S.W.3d at 478 (noting imprisonment, alone, does
not suffice to support termination under subsection (D)).




We find the evidence legally insufficient to support the
termination of Alan=s parental rights under section
161.001(1)(D) of the Family Code.  Accordingly, his first issue is sustained.
2.       Subsection (E)
(a)     Veronica
In her second issue, Veronica argues that the evidence is
legally and factually insufficient to terminate her parental rights under
subsection (E) because (1) the evidence of domestic violence is insufficient to
demonstrate that she engaged in conduct that endangered her children=s well-being; and
(2) her use of marijuana while pregnant with L.A.S. does not constitute the
requisite continuing course of conduct.
The Department argues that evidence of Veronica=s abuse at the
hands of her former husband and Alan, in addition to her criminal activity
after her children were taken into custody, support termination under
subsection (E).  Our previous discussion of this evidence under subsection (D)
is applicable here.  First, the abuse directed toward Veronica and L.P. by her
former husband occurred before A.S., D.S., and L.A.S. were born and, therefore,
does not demonstrate that Veronica knowingly placed her children with someone
whose conduct endangered their well-being.  Second, as to the evidence that
Alan pushed her and pulled her hair on two occasions, it is uncontroverted that
the children did not witness this conduct.  Moreover, we do not find that these
two incidents, as reflected in this record, constitute the type of continuing
course of conduct contemplated by the statute.  Finally, Veronica=s incarceration
while awaiting trial, standing alone, is insufficient to support termination of
parental rights.  In re S.M.L., 171 S.W.3d at 478.




The Department also contends that Veronica=s use of marijuana
during her pregnancy with L.A.S. endangered him as well as her older children
because her conduct could have impaired her judgment and exposed her to
incarceration.  The use of illegal drugs during pregnancy may be considered
endangering conduct that supports terminating parental rights.  In re J.T.G.,
121 S.W.3d at 125.  Veronica asserts, however, that a single use of marijuana
does not constitute a Avoluntary, deliberate, and conscious
course of conduct@ sufficient to support a termination
finding under subsection (E).[12] 
We agree.  




While
unquestionably, an exercise of poor judgment, Veronica=s use of marijuana
on a single occasion, standing alone, does not rise to the level of a conscious
course of conduct.  See Ruiz v. Texas Dep=t of Family and
Protective Svcs., 212 S.W.3d 804, 818 (Tex. App.CHouston [1st
Dist.] 2006, no pet.) (noting termination under subsection (E) must be based on
more than single act or omission); In re S.M.L., 171 S.W.3d at 477
(same); In re J.T.G., 121 S.W.3d at 125 (same).  According
to the 4 C=s report, the hospital social worker who first
reported L.A.S.=s positive test result for marijuana to
the Department also stated that L.A.S. Awas doing fine and
not showing any signs of health problems.@  Further,
Veronica testified that she smoked marijuana only in an attempt to alleviate
severe back pain and after her friend assured her that it would not harm her
unborn child, and that she regretted it afterwards.[13] 
While the trial court could have chosen to disbelieve this testimony, we are
mindful that under a factual sufficiency review we must consider all of the
evidence equally.  See In re J.F.C., 96 S.W.3d at 266.  Moreover, the undisputed evidence that Veronica took
pre-natal vitamins during her pregnancy undermines the argument that she
consciously engaged in a course of conduct that endangered her children=s well-being.
We find the
evidence both legally and factually insufficient to support termination of
Veronica=s parental rights
under section 161.001(1)(E) of the Family Code.  Accordingly, her second issue
is also sustained.
(b)     Alan
In his second
issue, Alan argues that the evidence is legally and factually insufficient to
support termination under subsection (E) because (1) spanking L.P. does not
constitute endangering conduct; and (2) he had no knowledge of Veronica=s use of marijuana
during her pregnancy and, therefore, did not knowingly place his child with
someone who engaged in endangering conduct.[14] 
In support of termination under subsection (E), the Department argues that Alan=s physical abuse
of Veronica and L.P. as well as his criminal activity constitute evidence of a
course of conduct that endangered the physical and emotional well-being of his
children.  
As discussed
above, we do not find that Alan=s conduct toward Veronica, as reflected in
this record, constitutes the type of continuing course of conduct required
under this section.  Furthermore, the undisputed evidence reflects that the
children did not witness Alan=s conduct.  The Department also urges us
to consider Bonner=s testimony that Veronica told her that
she and Alan had Agot[ten] into it one night.@  This conduct,
however, does not demonstrate that Alan engaged in conduct that endangered his
children=s well-being. 
Bonner admitted on cross-examination that she did not know how Veronica and
Alan Agot into it,@ or whether the
incident involved a physical altercation.  Moreover, this single incident does
not demonstrate the type of conduct contemplated by the statute. 




The Department
also contends that the two occasions when Alan over-disciplined L.P.  support
the trial court=s finding of termination under subsection
(E).  The Department does not contend, nor does the record reflect, that Alan
inappropriately disciplined A.S. or D.S.  Rather, it is the Department=s position that by
excessively disciplining L.P., Alan engaged in conduct that endangered A.S. and
D.S.=s well-being.  The
first incident occurred in 2004 when Alan spanked L.P. after the child wet his
pants.  Veronica testified that the spanking left no marks and no criminal
complaint appears to have been filed.  This court has held that infrequent spankings
of a child that leave Amarks@ or visible
bruises 24 hours after the spanking do not constitute sufficient evidence to
demonstrate that a parent has engaged in conduct that endangered a child=s physical or
emotional well-being.  In re J.A.J., 225 S.W.3d 621, 629B31 (Tex. App.CHouston [14th
Dist.] 2006), aff=d in part, rev=d in part on other
grounds, __ S.W.3d
__, No. 07-0511, 2007 WL 3230169 (Tex. Nov. 2, 2007).  Here, the record
shows that Alan spanked L.P. on one occasion, and Veronica  testified that the
spanking did not leave any marks or bruises.  If the spanking would be
insufficient evidence of endangering conduct toward L.P., it is similarly
insufficient, if not more so, as to A.S. or D.S.
According to the 4
C=s report, the
second incident occurred in 2005 when Alan over-disciplined L.P. due to his
stress over losing the family home during Hurricane Rita.  There is, however,
no evidence as to how Alan disciplined him.  We also find no evidence to
indicate whether A.S. or D.S. witnessed the discipline.  Although the decision
to terminate the parent-child relationship under subsection (E) does not
require that the conduct be directed toward the child, it does require that it
be committed in the presence of the child.  See Ziegler v. Tarrant Co. Child
Welfare Unit, 680 S.W.2d 674, 678 (Tex. App.CFort Worth 1984,
writ ref=d n.r.e.); see
also In re U.P., 105 S.W.3d at 233 (noting that parent=s conduct need not
be directed at child or that child actually be injured to support finding of
endangerment).




The Department
also argues that Alan=s probationary status in 2001 and his
indictment on charges of aggravated robbery in 2006 constitute conduct
sufficient to support termination under this section.  We disagree for several
reasons.  First, Alan was given probation for his burglary conviction, not
incarceration.  Second, he was indicted on charges of aggravated robbery, not
convicted, and, thus, confinement, if any, is speculative.  See In re
D.T., 34 S.W.3d at 638B39.  Third, absent other evidence of endangering
conduct, mere imprisonment will not constitute conduct which endangers the
emotional or physical well-being of a child.  See Boyd, 727 S.W.2d at
534.
Finally, we also
reject the Department=s argument that, by engaging in conduct he
knew could result in his imprisonment and separation from his children, Alan
engaged in a voluntary, deliberate, and conscious course of conduct that
endangered his children.  To accept such a premise would effectively nullify
the longstanding rule against terminating the parental relationship based
solely on imprisonment.  See In re D.T., 34 S.W.3d at 635. 
We find the
evidence legally and factually insufficient to support termination of Alan=s parental rights
under section 161.001(1)(E).  Accordingly, his second issue is sustained.
3.       Subsection (N)
In their third
issue, Veronica and Alan contend that the evidence is legally and factually
insufficient to support the termination of parental rights under section
161.001(1)(N) of the Family Code.  Under this ground, the Department must prove
that (1) the parent has constructively abandoned the child who has been in the
permanent or temporary managing conservatorship of the Department or an
authorized agency for not less than six months; (2) the department or
authorized agency 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.  Tex.
Fam. Code ' 161.001(1)(N).  If there is legally
insufficient evidence of any of the four elements, the complaint will be
sustained.  See In re D.T., 34 S.W.3d at 633.  Veronica and Alan argue
that the Department has failed to satisfy the third and fourth elements of
subsection (N).  To determine whether termination was warranted under this
provision, we turn to the record before us.
(a)     Veronica




After the
Department took her children into custody, Veronica visited A.S. and D.S. every
two weeks and L.A.S. weekly until she was jailed in June 2006.  Bonner
testified that  the visits went well and that Veronica was bonding with all
three of them during their visits.  After she was incarcerated, however, she
was no longer able to visit them due to the seriousness of the offense with
which she was charged.  Veronica testified that she wrote often to her child
with whom she had contact.  Bonner testified that Veronica did not contact her
during her incarceration, and there is no evidence that she had any contact
with A.S., D.S., or L.A.S. during the six-month period preceding trial. 
Veronica provided the Department with a list of her sisters who could care for
her children during her incarceration.  She also asked that her mother be permitted
to care for her children, but the Department would not approve the placement
due to Ms. Pena=s criminal history.  At the conclusion of
the proceedings on January 18, 2007, the trial court instructed the Department to
perform a home study on the maternal grandmother, but it never conducted one.
          In light
of the entire record, we do not believe that the Department has satisfied its
burden under subsection (N) as to Veronica.  We find the evidence factually
insufficient to enable a reasonable factfinder to form a firm belief or
conviction that Veronica did not regularly visit or maintain significant
contact with her children.  We also find the evidence to be factually
insufficient to show that Veronica demonstrated an inability to provide her
children with a safe environment.  Although the Department may have been
justifiably concerned at the outset as to whether Ms. Pena would prove an
appropriate care provider for her grandchildren in light of her criminal
history, it conducted no home study on her, even after being directed to do so
by the trial court.  The record is also silent as to why no home study was
performed on the maternal aunts other than the one with whom A.S. and D.S.
spent one month.  In re D.S.A., 113 S.W.3d 567, 573 (Tex. App.CAmarillo 2003, no
pet.) (noting that incarcerated parent can provide safe environment for child
through identification of friend, relative, or spouse as care provider).  The
Department had the burden to satisfy all of the elements under subsection (N)
by clear and convincing evidence.  We conclude that it has not done so. 
Accordingly, Veronica=s third issue is sustained.
(b)     Alan




Regarding Alan,
the record reflects that during the three-month period between the time the
Department took custody of his children in March 2006 until he was incarcerated
in June 2006, Alan visited his children only once.  Bonner testified that she
was in a training session during this one visit and was unable to observe Alan=s interaction with
his children.  She also testified that Alan=s brother came
often to visit the children.  No evidence indicates whether Alan made
any attempts to communicate with his children after he was incarcerated. 
Bonner testified that she spoke with Alan=s mother and
sister regarding alternative placement of the children.  The Department ruled
out Alan=s mother after she
was unable to provide a social security number for her boyfriend, and it did
not conduct a home study on her.  The record is silent as to whether Alan=s sister or
brother were considered for placement.
We find the
evidence sufficient to support the trial court=s finding that
Alan did not attempt to visit his children regularly or maintain significant
contact with them.  Other than one visit during the three-month period after
they were placed in the Department=s custody and
before he was incarcerated, the record does not reflect any other attempt by Alan
to contact them.  We find that the Department has satisfied its burden with
regard to the third element.
However, we do not
believe the Department has met its burden for the fourth elementCthat the parent
has demonstrated an inability to provide the child with a safe environment. 
Although Bonner spoke with Alan=s sister about placing the children with
her, the record does not reflect whether the Department rejected her as a potential
placement and, if so, why.  There is also no mention whether the Department
considered Alan=s brother as a relative placement. 
Further, although the Department initially ruled out the paternal grandmother
because she did not provide the Department with a social security number for
her boyfriend, no follow-up or home study appears to have been done to
determine whether she was an otherwise appropriate relative to care for the
children.  The Department asserts that Alan Adid not suggest
that he could do anything to provide the children with a safe environment.@  However, as the
party seeking the termination of parental rights, the Department bears the
burden of proof under section 161.001(1)(N) to show that he was unable to do
so.  See In re D.T., 34 S.W.3d at 641 (noting caseworker=s statement at
trial that appellant had not shown she could provide safe, stable home for
child improperly reversed burden of proof).




We find the
evidence factually insufficient to support termination of Alan=s parental rights
under section 161.001(1)(N) of the Family Code.  Accordingly, Alan=s third issue is
sustained.[15]

B.      Sole Managing Conservatorship 
In their fifth
issue, Veronica and Alan contend that, if we reverse that portion of the trial
court=s order
terminating their parental rights, we must also reverse the portion appointing
the Department as sole managing conservator of the children.  This is so, they
argue, because the trial court=s conservatorship appointment was a direct
consequence of the termination of their parental rights, and, therefore,
reversal of the termination of their parental rights necessitates reversal of
the appointment of the Department as sole managing conservator.  The
Department, however, contends that we are precluded from considering this issue
because appellants did not include it in their statement of appellate points
presented to the trial court pursuant to Texas Family Code section 263.405.  See
Tex. Fam. Code ' 263.405(b).  In
the alternative, the Department argues that the trial court=s conservatorship
appointment was based on a ground independent from its decision to terminate
appellants= parental rights and, therefore, should be upheld.




The Texas Supreme
Court recently issued two decisions that bear directly on our disposition of
this issue.  In In re
J.A.J., __ S.W.3d
__, No. 07-0511, 2007 WL 3230169 (Tex. Nov. 2, 2007), the Court resolved a
split among appellate courts regarding whether it is necessary to specifically
assign error to the Department=s appointment as conservator when a judgment terminating parental
rights is reversed.  Id. at *2.  In that case, the Department sought
termination of the mother=s parental rights to her child and requested conservatorship
pursuant to sections 153.005 and 153.131.  Id. at *1.[16] 
The trial court terminated the mother=s parental rights and appointed the
Department the child=s sole managing conservator.  Id.
On appeal, the mother claimed that
the evidence was insufficient to support the termination decision, but she did
not assign error to the conservatorship appointment.  Id.  The court of
appeals determined that the evidence was insufficient to support termination
under Texas Family Code section 161.001(1)(D) and (E) and reversed the trial
court=s judgment, including that portion
appointing the Department as the child=s conservator.  Id.
In its petition
for review, the Department challenged only the portion of the court of appeals= judgment that
reversed its appointment as the child=s managing
conservator.  Id. at *2.  In its analysis, the Court noted that the
trial court found that (1) appointment of the parent as conservator would not
be in the child=s best interest because it would
significantly impair his physical health or emotional development, and (2)
appointment of the Department as managing conservator was in the child=s best interest.  Id.
at *3.  The Court concluded that A[t]hese findings
satisfy not only the fundamental requirement that the court consider the best
interest of the child, ... but also the more specific findings necessary to
justify the Department=s appointment under section 153.131.@  Id.  In
light of the differing elements and standards of review applied to
conservatorship and termination orders, the Court concluded that a challenge to
the Department=s appointment as the child=s conservator was
not subsumed in the appellant=s challenge to the termination order.  Id. 
In the absence of assigned error, the Court reversed the portion of the court
of appeals= judgment that reversed appointment of the Department
as the child=s sole managing conservator.  Id. at *6.




In In re D.N.C.,
__ S.W.3d __, 2008 WL 344806 (Tex. Feb. 8, 2008) (per curiam), the Court
considered a similar challenge to a court of appeals= reversal of a
trial court=s conservatorship order.  In the case reviewed
in D.N.C., styled below as Colbert v. Department of Family &
Protective Services, the Department sought termination of the mother=s parental rights
to her seven children.  See 227 S.W.3d 799, 802 (Tex. App.CHouston [1st
Dist.] 2006), pet. denied, In re D.N.C., __ S.W.3d __, 2008 WL
344806 (Tex. Feb. 8, 2008).  The trial court found that the mother had
endangered her children and terminated her parental rights under section
161.001(1)(D).  Id. at 807.  Without making any additional
findings, the trial court appointed the Department as the children=s managing
conservator.  Id.
On appeal, the
mother challenged the sufficiency of the evidence supporting the termination
order, but she did not separately challenge the appointment of the Department
as the children=s managing conservator.  Id.  The
court of appeals reversed the termination order on factual insufficiency
grounds and reversed the conservatorship appointment.  Id. at 816. 
Reasoning that no findings had been made under Family Code section 153.131 that
would independently support the conservatorship order, the appeals court
concluded that the Department=s appointment was solely the consequence
of the trial court=s termination decision under section
161.207 and had to be reversed as well.  Id.[17]




In a per curiam
decision, the Court addressed the Department=s argument that
reversal of the conservatorship order was erroneous in light of its recent
decision in J.A.J.  In re D.N.C., 2008 WL 344806, at *1.  The
Court emphasized that while the Department in J.A.J. had requested
conservatorship pursuant to Family Code section 153.131 and the trial court had
made the specific findings the statute requiresCi.e., that appointment
of a parent as managing conservator would not be in the child=s best interest
because it would significantly impair his physical health or emotional
development, and that appointment of the Department was in the child=s best interestCthe only available
statutory mechanism for the Department=s appointment in
the instant case was as a consequence of the termination pursuant to Family
Code section 161.207.  Id. at *1.  It therefore concluded that J.A.J.
did not apply, and that the mother=s challenge to the
conservatorship appointment was subsumed in her appeal of the termination order. 
Id.  With these guidelines in mind, we consider Veronica and Alan=s challenge to the
appointment of the Department as sole managing conservator of A.S., D.S., and
L.A.S.
On March 13, 2006,
the Department filed its AOriginal Petition for Protection of a
Child, for Conservatorship, and for Termination in Suit Affecting the
Parent-Child Relationship.@  In section 13 of the complaint, the
Department requested that it be appointed the children=s sole managing
conservator A[p]ursuant to '' 153.005 and
263.404.@  It further
stated that A[a]s grounds for appointment of the Department ... as
Managing Conservator, the Department alleges pursuant to ' 153.131 of the
Texas Family Code that the appointment of the parent or parents would not be in
the best interest of the children because the appointment of the parent or
parents would significantly impair the children=s physical health
or emotional development.@  In its Final Decree for Termination,
under the section entitled AConservatorship of the Children,@ the trial court
ordered that the Department be appointed sole managing conservator of A.S.,
D.S., and L.A.S. and found Athis appointment to be in the best
interest of the children.@  No additional findings were made.
Because the trial
court made no findings under section 153.131 that would independently support
the conservatorship order, we conclude that the Department=s appointment was
solely the consequence of the trial court=s termination
decision under Family Code section 161.001(1).[18] 
In accordance with D.N.C., we conclude that Veronica and Alan=s challenge to the
conservatorship appointment was subsumed in their appeal of the termination
order.  Because we reverse the portion of the trial court=s order
terminating Veronica and Alan=s parental rights under section
161.001(1), we also reverse the portion of the order that appointed the
Department as the sole managing conservator.  We sustain appellants= fifth issue.




IV. Conclusion
Accordingly, we reverse that
portion of the trial court=s decree terminating Veronica=s parental rights to A.S., D.S., and L.A.S., and render
judgment denying the Department=s request to terminate Veronica=s rights to A.S., D.S., and L.A.S.  We reverse that portion
of the decree terminating Alan=s parental rights to A.S. and D.S., and render judgment denying the
Department=s request to terminate Alan=s rights to A.S. and D.S.  In
addition, because it was not supported by findings separate and apart from the
findings supporting the termination, we also reverse that portion of the decree
appointing the Department as the sole managing conservator of A.S., D.S., and
L.A.S., and remand the case to the trial court for the limited purpose of
rendering an order, consistent with Family Code section 161.205.[19]
 
 
 
/s/      Wanda
McKee Fowler
Justice
 
Judgment rendered
and Opinion filed March 4, 2008.
Panel consists of
Justices Yates, Fowler, and Guzman.




[1]  To protect the privacy of the parties in this case,
we identify the parents by fictitious names, and we identify the children by
their initials.  See Tex. Fam.
Code ' 109.002(d).


[2]  A paternity test revealed that Alan is not the
biological father of L.A.S.  In its final order, the trial court also
terminated the parental rights of L.A.S.=s
unknown father.


[3]  L.P. is not a subject of this suit.


[4]  This evidence was presented through a family evaluation report prepared
by the Children=s Crisis Care Center on April 24,
2006 (A4 C=s report@).


[5]  The 4 C=s
report also reflects that, in February 2006, CPS received a referral alleging
physical abuse and neglectful supervision of A.S., D.S., and L.P. by Veronica
and Alan.  However, the word AUnknown@ appears under the box entitled AValidated?@,
and the Department does not discuss this incident in its brief.


[6]  The evidence is conflicting as to why Veronica was
unable to obtain pre-natal care for L.A.S. in Houston.  The 4 C=s report reflects that she was unable to get her medical records from
Beaumont.  However, at trial she testified that no physician was willing to
take her as a new patient because of her advanced pregnancy.  Notwithstanding,
she continued to take pre-natal vitamins throughout her pregnancy.    


[7]  Veronica=s
plan required that she complete parenting classes, participate in therapy,
submit to drug assessments, maintain stable housing and employment, and attend
court hearings.  Alan=s plan required that he submit to paternity testing,
inform the case worker of his intentions and desires with respect to permanency
of the children, provide documentation demonstrating stable housing and
employment, allow access to his home for home study, participate in individual
counseling, cease criminal activity, and attend court hearings.


[8]  We presume that she was referring to her oldest
child, L.P., who was being cared for by his great-aunt.


[9]  During Veronica=s incarceration, one of her sisters
cared for A.S. and D.S. for approximately one month.  However, her sister was
unable to continue caring for them because it was creating problems in her
marriage. 


[10]  Ms. Pena testified that she had been convicted of
forgery in 1978, making a terroristic threat in 1985, and theft by check in or
around 1999.


[11]  Although awaiting trial in the Harris County jail on charges of
aggravated robbery, both Veronica and Alan appeared and testified at the termination
hearing.  


[12]  The 4 C=s
report states that Veronica admitted Ato
trying marijuana a few times in her life,@
although it is unclear when those occasions occurred.  Moreover, Alan=s uncontroverted testimony that he had no knowledge
that Veronica had used drugs and that he had never smelled the substance on her
suggests that her prior usage occurred before the birth of her children.  In
any case, there is no
direct evidence that Veronica had an ongoing narcotics problem that would
support a finding under this section.  See Ruiz v. Texas Dep=t of Family and Protective Svcs., 212 S.W.3d 804, 818 (Tex. App.CHouston [1st Dist.] 2006, no pet.).


[13]  We are unaware of any cases in which a single use of marijuanaCor any drugCduring pregnancy has, alone, been
held sufficient to constitute a Acourse of conduct@ to support termination under subsection (E).  Cf. In re
M.D.V., No. 14-04-00463-CV, 2005 WL 2787006, at *5 (Tex. App.CHouston [14th Dist.] Oct. 27, 2005,
no pet.) (mem. op.) (finding appellant engaged in course of conduct that
endangered child in light of her extensive drug use for ten years, particularly
while pregnant and while caring for her children, her inability or
unwillingness to abstain from drug use after child was born marijuana positive,
and her relapse after children were returned to her); In re S.M.L.D.,
150 S.W.3d 754, 757B58 (Tex. App.CAmarillo 2004, no pet.) (holding mother=s
drug use during pregnancy and after child was removed from her care, in face of
random drug testing that placed her relationship with child at risk, was
legally and factually sufficient evidence that she engaged in course of conduct
which endangered her child).


[14]  The Department does not attempt to argue that
Veronica=s use of marijuana during her pregnancy is evidence
that Alan knowingly placed his children with someone who engaged in endangering
conduct.  Thus, we need not address this argument.


[15]  Having found the evidence insufficient under section
161.001(1)(D), (E), and (N), we need not address appellants= fourth issue challenging the trial court=s conclusion that termination was in the children=s best interest. 


[16]  Section 153.005 provides generally that in a suit
affecting the parent-child relationship, Athe
court may appoint a sole managing conservator or may appoint joint managing
conservators.@  Tex. Fam.
Code ' 153.005.  Section 153.131 creates a rebuttable
presumption that a parent should be appointed the child=s managing conservator Aunless the court finds that appointment of the parent or parents would
not be in the best interest of the child because the appointment would
significantly impair the child=s physical
health or emotional development.@  Id.
' 153.131(a). 


[17]  Section 161.207 provides that the court shall
appoint a suitable managing conservator A[i]f
the court terminates the parent-child relationship with respect to both parents
or to the only living parent.@  Tex. Fam. Code ' 161.207(a).


[18]  We note that while the Department in D.N.C. did
not request conservatorship under section 153.131, the Department in this case
did make such a request.  The Department relies on this fact to argue that
although the trial court did not specify the statutory basis on which it relied
to appoint the Department as conservator, or issue any findings of fact, we may
nonetheless infer that the court made the necessary findings to support the
conservatorship appointment under section 153.131.  We disagree.  In J.A.J.,
the Court emphasized that the trial court=s
specific finding that appointment of a parent as the child=s conservator would not be in his best interest
because it would significantly impair his health or emotional development was
necessary to justify the Department=s
appointment under section 153.131.  2007 WL 2320169, at *3.  In the absence of
such a finding by the trial court here, we will not infer one.


[19]  When reversing the trial court=s judgment or appealable order, we ordinarily render
the judgment or order that the trial court should have rendered.  See Tex. R. App. P. 43.3; Colbert,
227 S.W.3d at 816.  However, in a case involving the involuntary termination of
parental rights, if the trial court does not order termination of the
parent-child relationship (which becomes the case here because we have reversed
the trial court order and have rendered judgment that appellants= parental rights are not terminated), Family Code
section 161.205 requires that the trial court either (1) deny the petition for
termination, or (2) render any order in the best interest of the child.  See
Tex. Fam. Code ' 161.205.  As an appellate court, we are not in a
position to determine whether to simply deny the petition for termination or to
render some other order in the best interest of the child.  Colbert, 227
S.W.3d at 816.  Circumstances concerning the child or parent may have changed
since the trial court rendered its final order, a matter that requires a
factfinder.  Id.  We are therefore unable to render a judgment that
disposes of all remaining issues in the case and must remand the case in part
to the trial court for further proceedings under section 161.205.  See id. &
n.15 (A[S]ection 161.205 becomes applicable on remand because
we have reversed the trial court order and have rendered judgment that
appellant=s parental rights are not terminated.  Section 161.205
is the controlling authority for how the trial court must proceed on remand.@).


