                                         NO. 07-02-0128-CV

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL E

                                    SEPTEMBER 24, 2002
                              ______________________________

                            IN THE INTEREST OF D. D. H., A CHILD

                            _________________________________

               FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                      NO. 62,405-D; HON. DON EMERSON, PRESIDING
                           _______________________________

                                    Memorandum Opinion
                              _______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ.1

        Nyleta Suzette Hocutt (Hocutt) appeals from an order terminating the parental

relationship between her and her three-year-old daughter, DDH.2 Through an amended

brief, Hocutt asserts five issues. Each involves the legal and factual sufficiency of the

evidence supporting the termination order. That is, she contends that the evidence is both

legally and factually insufficient to support the findings that 1) she engaged in conduct or

knowingly placed the child with persons who engaged in conduct which endangered the

physical and emotional well-being of the child, 2) she knowingly placed or knowingly


        1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. TEX. GOV’T
CODE ANN. § 75.002(a)(1) (Vernon Supp. 2002).
        2
        The parental rights of the father were also terminated, but that termination has not been challenged
on appeal.
allowed the child to remain in conditions or surroundings which endangered the physical

or emotional well-being of the child, 3) she constructively abandoned the child, 4) she

failed to comply with a court order necessary to obtain the return of the child, and 5)

termination of the parent-child relationship was in the best interest of the child. We affirm

the order of termination.

                                   Standard of Review

       The standard of review applicable to claims of legal insufficiency is discussed in

Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996), and need not be reiterated. That

applicable to claims of factual insufficiency is discussed in In re C.H., No. 00-0552, slip

op., 2001 WL 1903109 at 1 (Tex. July 3, 2002).

                                  Issues Four and Five

       We first address the last two issues mentioned above, i.e., compliance with a court

order and the best interest of the child, respectively. Appellant failed to brief them or

otherwise support her contentions with argument, analysis, and citation to authority or the

record. So, those issues were waived. TEX . R. APP . P. 38.1(h) (stating that a brief must

contain a clear and concise argument for the contentions made, with appropriate citation

to legal authority and the record); Goode v. Shoukfeh, 915 S.W.2d 666, 674 (Tex.App.--

Amarillo 1996), aff’d, 943 S.W.2d 441 (Tex. 1997) (holding that the failure to properly brief

an argument is grounds to conclude that the argument was waived); Dunlap v. Excel Corp.,

30 S.W.3d 427, 434 (Tex.App.--Amarillo 2000, no pet.) (holding that substantive analysis

and citation to authority must accompany an issue to avoid waiver).




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                                      Issue Three

      We next consider the issue of whether legally and factually sufficient evidence

supported the finding that Hocutt constructively abandoned DDH. And, though Hocutt

generally describes the contention as one involving the sufficiency of the evidence, she

actually asserts that her absence from DDH was involuntary and, being so, insufficient

basis to warrant termination. We overrule the issue for the following reasons.

      First, Hocutt again fails to accompany her argument with substantive analysis or

citation to legal authority and the record. Thus, the issue was improperly briefed and

waived.

      Second, Hocutt’s actions were allegedly involuntary because she left DDH and went

to Oklahoma due to her fear that the State would take her unborn child from her. That is,

at the time Hocutt left Texas for Oklahoma, she was pregnant. Fearing that the Texas

Department of Protective and Regulatory Services (DPRS) would take the child upon its

birth, she fled from its jurisdiction and left DDH behind. In short, she made a choice and,

sadly, chose one child over the other.

      It is provided by statute that the parent-child relationship may be terminated if the

parent constructively abandons the child. TEX . FAM . CODE ANN . §161.001(1)(N) (Vernon

Supp. 2002). The ground has four elements. That is, it must be shown by clear and

convincing evidence that 1) the child has been in the permanent or temporary managing

conservatorship of the DPRS for not less than six months, 2) DPRS 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



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inability to provide the child with a safe environment. Id. Omitted from that statute is any

proviso declaring that the parent-child relationship cannot be terminated due to

constructive abandonment if the elements of §161.001(1)(N) are satisfied but the parent

flees Texas to avoid the DPRS and leaves a child behind. Nor did the legislature state that

termination could be prevented if the parent fled due to his or her belief (whether justified

or not) that another child would be subjected to proceedings initiated by the DPRS. Simply

put, parents have a duty to care for all of their children, not just those they choose to

protect and nurture. Matter of Marriage of Chandler, 914 S.W.2d 252, 254 (Tex.App.--

Amarillo 1996, no writ) (stating that a parent has the duty to care for his or her child).

Because of that, we opt not to write into legislative directive a judicial proviso that bars the

DPRS from attempting to end the parent-child relationship under circumstances like that

at bar. If the legislature cares to create such a defense, it may. We cannot.

       Nor can Hocutt simply pick and choose which child to nurture and then leave the

other behind. That DDH had been in the conservatorship of the DPRS for the requisite

time is undisputed. In fleeing to Oklahoma instead of attempting to fulfill the plan created

by the DPRS to reunite Hocutt and DDH, in omitting to contact DDH for over six months

immediately prior to trial, and in failing to provide support for that child during those

months, Hocutt provided the remaining clear and convincing evidence needed to terminate

her parental relationship with DDH under §161.001(1)(N) of the Family Code.

       Since our resolution of issue three disposes of the appeal, we need not address the

remaining issues. Accordingly, we affirm the order of termination.




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                      Brian Quinn
                        Justice

Do not publish.




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