                                         In The

                                  Court of Appeals
                      Ninth District of Texas at Beaumont
                                _________________
                                  NO. 09-12-00314-CV
                                _________________

          IN THE INTEREST OF A.M.C., J.M.C. III, C.D.C. AND H.D.C.


________________________________________________________________________

                   On Appeal from the 258th District Court
                         San Jacinto County, Texas
                         Trial Cause No. CV12641
________________________________________________________________________

                             MEMORANDUM OPINION

       This is a parental-rights termination case. Following a bench trial, the trial court

signed a judgment terminating the rights of appellants, M.B. (Mother) and J.M.C. Jr.

(Father) to their minor children, A.M.C., J.M.C. III, C.D.C. and H.D.C. The trial court

found, by clear and convincing evidence, that statutory grounds existed for the

termination and that termination would be in the best interest of the children. See Tex.

Fam. Code Ann. § 161.001(1)(D), (E), (N), (O), (2) (West Supp. 2012). The trial court

signed the order terminating parental rights in July 2012, replacing an order signed over a




                                            1
year before that named the Department as the children’s permanent managing

conservator. See id. § 161.004 (West 2008).

       On appeal, the Department has agreed that Mother’s claim that she was not

properly served by publication requires that the order terminating her rights be reversed.

Although Father asserts the evidence is insufficient to support the trial court’s decision

terminating his rights, after carefully reviewing the evidence, we conclude that the

evidence is sufficient to support the trial court’s decision terminating Father’s parental

rights. Based on our review, we affirm the judgment terminating Father’s rights, but we

reverse the judgment terminating Mother’s rights and remand that part of the case to the

trial court for a new trial.

                                   Service on Mother

       In their first two issues, Mother and Father argue that Mother was not properly

served by publication. According to Mother, the record fails to establish that the

Department exercised diligence in its efforts to locate her or that the Department

complied with the provisions of section 161.208 of the Family Code. See id. § 161.208

(West 2008). In the absence of personal service on the missing parent, section 161.208,

requires the Department to show that it exercised diligence in locating a missing parent

and a relative of that parent before it can be named as the permanent managing

conservator of a child. See id. §§ 161.107, 161.208 (West 2008). “A lack of diligence




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makes service by publication ineffective.” In re E.R., No. 11-0282, 2012 WL 2617604, at

*8 (Tex. July 6, 2012).

       The Department concedes that no affidavit establishing due diligence exists in the

record. It has joined Mother’s request asking that we grant Mother a new trial. We sustain

Mother’s first issue; accordingly, we do not address the parties other arguments

concerning the termination of Mother’s parental rights. See Tex. R. App. P. 47.1.

                           Adequacy of Department’s Petition

       In addition to Father’s first two issues, which argue Mother was not properly

served with process reasonably calculated to give her notice of the Department’s petition,

Father’s third issue asserts the trial court admitted evidence that was not supported by the

Department’s petition. According to Father, the trial court erred in admitting evidence

that addressed Father’s conduct prior to March 2011, the date the trial court initially

entered a judgment denying the Department’s petition seeking to terminate Father’s

parental rights. According to Father, the Department could not rely on any of Father’s

conduct that occurred before March 2011 because the Department failed to specifically

plead section 161.004 of the Family Code as a ground on which it was seeking to

terminate Father’s rights. See Tex. Fam. Code Ann. § 161.004 (authorizing a court to

terminate a parent-child relationship after rendering an order that previously denied

termination).




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       While the Department’s live pleading does not expressly reference section

161.004 of the Family Code, the Department’s petition requesting termination alleges

that (1) the circumstances of the parents and the children had materially and substantially

changed since March 2011, (2) the parents’ rights should be terminated based on the

grounds stated in the petition, and (3) the best interest of the children would be served by

terminating Father’s and Mother’s parental rights.

       When the circumstances of a party affected by an order denying termination have

materially and substantially changed and termination is in a child’s best interest, section

161.004 allows a court to terminate a parent’s relationship with his child. See id. §

161.004(a)(2), (4). A substantial change requires a comparison of conduct that occurs at

different points in time. Although the Department’s petition did not specifically reference

section 161.004, we conclude that its petition sufficiently notified Father that his conduct

that occurred prior to March 2011 was relevant. In the absence of special exceptions,

which Father did not file, we conclude that the petition at issue was sufficient to notify

Father that the Department’s legal theories included section 161.004 of the Family Code.

Id.

       Additionally, at the conclusion of the prior proceedings in March 2011, the parties

expressly agreed that all evidence available to the Department during the March 2011

proceedings could be used in any future trial. Even absent that agreement, section

161.004(b) of the Family Code authorizes trial courts to “consider evidence presented at a


                                             4
previous hearing in a suit for termination of the parent-child relationship of the parent

with respect to the same child.” Id. § 161.004(b). During the trial that led to the order

now on appeal, Mother withdrew her objection to the admission of evidence from the

earlier proceeding and Father did not object to the admission of that evidence or claim

surprise. We conclude that the trial court properly admitted the evidence relating to

Father’s conduct that occurred before the March 2011 proceedings. We overrule issue

three.

                                      Sufficiency Issues

                                      Legal Sufficiency

         In issues four through eight, Father challenges the legal and factual sufficiency of

the evidence supporting the statutory grounds on which the trial court terminated Father’s

parent-child relationships. Father also challenges the trial court’s best interest finding.

         In a legal sufficiency review of an order terminating parental rights, we “look at

all the evidence in the light most favorable to the finding to determine whether a

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

true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Our factual sufficiency review is

only slightly less deferential to the factfinder, as under that standard we “give due

consideration to evidence that the factfinder could reasonably have found to be clear and

convincing.” Id. Under a factual sufficiency standard, the findings are sufficient unless,

based on the entire record, “the disputed evidence that a reasonable factfinder could not


                                              5
have credited in favor of the finding is so significant that a factfinder could not

reasonably have formed a firm belief or conviction[]” that the fact at issue was true. Id.

       Neither parent appeared in person for the trial. At the bench trial, the trial court

took judicial notice of the file, which included the Department’s progress reports, family

service plans, as well as the trial court’s status hearing, permanency hearing, and

placement review orders. See Tex. R. Evid. 201. During the trial that resulted in the

termination order at issue, two Department investigators and a Department caseworker

testified about their experience with the family and their efforts to reunify the family.

       When the Department took possession of the children, Mother was using drugs;

also, Mother and the children were homeless. Father was not living with them. The

removal affidavit, signed by one of the investigators, reflects that the family was referred

to the Department based on an allegation that Mother was not adequately supervising the

children. According to the Department’s investigator, the family was living in a small

camper on a friend’s property, Mother was trading her food stamps for

methamphetamine, and she allowed the children to stay with various individuals while

she was out at night using drugs. According to the investigator, Mother stated that she

was homeless and unemployed, admitted that she was using marijuana and

methamphetamine on weekends, and she agreed that she could not care for her children.

Mother indicated that she intended to leave the children with some friends; however, the

Department felt that the two persons Mother identified as possible caretakers were


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“unsuitable as a long-term placement.” Mother signed a note requesting that her children

receive a temporary placement with the Department.

      The evidence also reflects that in 2009, following an adversary hearing at which

both Mother and Father appeared, the trial court appointed the Department as the

temporary managing conservator of the children. The trial court also ordered that Mother

and Father comply with the requirements in the Department’s service plan and any

amended service plan during the pendency of the suit. Subsequently, the Department

offered the parents family service plans. The Department’s caseworker testified that

neither parent completed the respective plan. Father visited the children in the spring of

2011, but for months before and after those visits, Father was incarcerated. According to

the caseworker, during periods that Father was not in jail, he failed to (1) maintain

contact with the children’s caseworker, (2) pass a random drug test, (3) submit to a

psychological evaluation, (4) complete parenting classes, and (5) attend individual

counseling as required by the service plan. According to the caseworker, the counselor

stopped individual counseling because Father missed his appointments.

      The caseworker also testified that Father failed to obtain and maintain safe and

appropriate housing or stable employment, and he failed to visit the children after the

Department became their permanent managing conservator. The evidence shows that

Father was offered a new service plan after the trial in March 2011, but that service plan,

effective after March 2011, is not in the record. According to the caseworker, most of the


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services required by Father’s current plan were the same as those required by his initial

plan; however, Father never completed his plan. Additionally, the caseworker explained

that Father did not pay child support as required by the trial court’s order. Another

caseworker, who took over Father’s case, also testified that Father had not paid child

support. According to that caseworker, Father never contacted her to visit the children,

and Father had not contacted her in an effort to work on his service plan.

       The records before the trial court concerning Father’s incarceration do not present

a complete picture to show when he was incarcerated or when he was free. Neither the

Department’s records nor its witnesses confirm Father’s incarceration status immediately

before the Department removed the children from Mother’s possession. The records

before the trial court indicate that as of February 2010, Father had been incarcerated, and

that he had not made contact with the Department since his release. The Department’s

records reflect that Father signed a family service plan in October 2010, but he was

arrested and jailed the following week. According to the caseworker, at one point, Father

had pending criminal matters in two counties. The Department’s records also reflect that

in December 2010, the Department reported that Father was residing in the Liberty

County Jail on an accusation of a “shoplifting” offense. From the records before the trial

court, we are unable to determine with precision when Father was not in jail, as those

periods relate to Father’s failure to visit the children.




                                                8
       Two witnesses, a Department supervisor and the children’s foster mother, testified

about the children’s current placement and the Department’s future plans for the children.

The children, at the time of the 2012 trial, were between eight and fourteen years old. The

supervisor testified that the Department’s permanency goal is unrelated adoption. The

foster family went through the fostering process for these children. When the trial

occurred, the children had been living with the foster family for approximately one year.

The supervisor testified that the children had bonded with the foster family and expressed

a desire to be adopted by them. According to the supervisor, terminating the parents’

rights would serve the best interests of the children. The foster mother, a school teacher,

stated that the children came to her “highly unstructured.” She explained that she had set

boundaries and established consequences, with a goal to firmly instill self-esteem and

faith, which would allow the children to become independent and productive.

       Although Father groups his factual and legal sufficiency arguments together, we

will address Father’s legal sufficiency arguments first. In the case before us, none of the

details regarding Father’s incarceration are contained in the record. The record suggests

Father experienced pre-trial incarceration while the children were in the Department’s

custody; however, other than a mention of an October 2010 shoplifting accusation in the

December 2010 permanency report, the reasons that Father may have been incarcerated

are unknown, as the Department did not introduce the accusations nor did it present any

evidence regarding Father’s guilt. While Mother’s admitted drug use is a fact the trial


                                            9
court could consider in deciding that Mother had not been adequately supervising the

children, Father was not living with the children when Mother’s drug use allegedly

occurred, and the Department offered no evidence to show whether Father was aware of

the children’s living conditions or that Mother was using drugs when the children were

removed from Mother’s custody.

      The Department bears the burden of showing, by clear and convincing evidence,

that “the parent engaged in certain proscribed conduct, as specified in the Family Code,

and that termination is in the best interest of the children.” In re E.N.C., No. 11-0713,

2012 WL 4840710, at *1 (Tex. Oct. 12, 2012). Evidence of a parent’s awareness that the

children are being neglected or are living in unsanitary or dangerous conditions can

support a finding of endangerment. In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.—Tyler

2003, no pet.). To meet its burden of establishing grounds for Father’s termination by

clear and convincing evidence, the Department must do more than introduce evidence

creating a mere suspicion that would require us to guess that Father, even though he was

not living in the home with Mother and the children, must have known of Mother’s

alleged conduct. See In re E.N.C., 2012 WL 4840710, at *8.

      Additionally, incarceration accompanied by continued drug use when a parent has

agreed to comply with a family service plan can be evidence that allows a factfinder to

conclude that a parent has endangered a child. See Latham v. Dep’t of Family &

Protective Servs., 177 S.W.3d 341, 348 (Tex. App.—Houston [1st Dist.] 2005, no pet.).


                                           10
However, Father’s incarceration, standing alone, does not constitute endangerment. See

Robinson v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686 (Tex.

App.—Houston [1st Dist.] 2002, no pet.) (citing Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987)). In this case, it appears that Father was in jail at various

times because he had been accused of committing a crime; there is no evidence that he

committed the acts that resulted in his arrest or that a voluntary course of conduct had

resulted in his incarceration. Finally, while the testimony showed that Father failed to

pass a drug test, the test results are not in the record, nor does the evidence admitted

during the trial show that Father tested positive for an illegal substance. We recognize

that a parent’s use of narcotics and its effect on the parent’s abilities “to parent may

qualify as an endangering course of conduct.” In the Interest of J.O.A., 283 S.W.3d 336,

345 (Tex. 2009). Nevertheless, the record in this case fails to show narcotic use or how

the drug for which Father tested positive had the effect of endangering the child.

       The State did not fully develop the record regarding Father’s alleged drug use or

Father’s alleged criminal history. Considering the entire record in the light most

favorable to the Department, the factfinder could not reasonably have formed a firm

conviction or belief that Father endangered the children or knowingly allowed them to

remain in endangering conditions. See Tex. Fam. Code Ann. § 161.001(1)(D), (E). We

sustain issues four and five.




                                            11
      Nevertheless, legally sufficient evidence supports two of the grounds upon which

the trial court relied in terminating Father’s parental relationships with his children—

constructive abandonment and violating the family service plan. See id. § 161.001(1)(N),

(O). Constructive abandonment may be established by proof that the parents visited the

children infrequently while in the Department’s custody. See In re H.R., 87 S.W.3d 691,

699 (Tex. App.—San Antonio 2002, no pet.). After Father was released from

confinement, the evidence reflects that he saw the children infrequently. The evidence

regarding the Father’s lack of contact with the children allowed the trial court to

reasonably conclude that Father had failed to maintain contact with the children and the

Department as required by the family service plan. Failure to comply with each of the

conditions for return under a family service plan supports a trial court’s termination

finding. See In re T.T., 228 S.W.3d 312, 319-20 (Tex. App.—Houston [14th Dist.] 2007,

pet. denied). Additionally, the family service plan required Father to maintain contact

with the caseworker, submit to a psychological examination, obtain and maintain

appropriate housing, resolve any pending criminal matters, and comply with the child

support order. Father accomplished none of these requirements.

      Father argues that the evidence does not support the termination of his rights for

failing to comply with the family service plan because the children had been living with

Mother and she asked the Department to assume their care. The trial court’s order for

protection includes a finding that the children were removed pursuant to section 262.104


                                          12
of the Family Code. See Tex. Fam. Code Ann. § 262.104 (West 2008) (taking possession

of a child in emergency without a court order). Mother consented to the initial removal of

the children, but the fact that Mother admitted she could not adequately care for the

children does not preclude a finding that the children were removed due to neglect. See

generally id. § 161.001(1)(O). Moreover, the children need not be removed from the

parent who failed to comply with the court order. See In re S.N., 287 S.W.3d 183, 188-90

(Tex. App.—Houston [14th Dist.] 2009, no pet.), contra Tex. Dep’t of Family &

Protective Servs. v. Silva, No. 01-08-00195-CV, 2009 WL 276782, at *8 (Tex. App.—

Houston [1st Dist.] Feb. 5, 2009, no pet.) (mem. op.) (holding trial court did not err in

granting directed verdict for one parent when evidence established the child was removed

from the other parent). Here, the children were in Mother’s possession when the

Department intervened; by taking the children into its possession and by obtaining an

order for substitute care of the children after a full adversary hearing, the Department

effectively removed the children from both parents. See Tex. Fam. Code Ann. § 262.201

(West Supp. 2012).

      The evidence also allowed the trial court to conclude that Father made no effort to

provide a safe and stable home environment. The evidence further shows that for a year

the children had been living together and had bonded with a foster family, and that the

children and the foster family desired to make the arrangement permanent. See Holley v.

Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). There is some evidence from which the


                                           13
trial court could rationally form a firm belief or conviction as to at least one of the

grounds for termination. See Tex. Fam. Code Ann. § 161.001(1)(N), (O).

       Given all of the evidence before the trial court, and considering the evidence in the

light most favorable to the trial court’s order, we conclude that the trial court could

reasonably form a firm conviction that termination was in the best interest of the children.

See id. § 161.001(2). With respect to Father’s legal sufficiency arguments advanced in

issues six through eight, we hold the trial court’s findings are supported by legally

sufficient evidence.

                                       Factual Sufficiency

       Next, we address the factual sufficiency arguments that Father raises in his appeal

as those relate to Father’s having violated the family service plan and to his constructive

abandonment of the children. In reviewing the trial court’s termination findings, we are to

determine whether the evidence is such that a factfinder could reasonably form a firm

belief or conviction about the truth of the Department’s allegations. In re C.H., 89

S.W.3d 17, 25 (Tex. 2002). Father argues that the Department failed to establish that it

made reasonable efforts to return the children, a requirement necessary to establish a

claim of constructive abandonment. See Tex. Fam. Code Ann. § 161.001(1)(N).

       The February 2010 family service plan, which Father signed in October 2010, is

the only plan the trial court admitted into evidence. The caseworker testified that the

parents received new family service plans after the Department became the permanent


                                            14
managing conservator in March 2011, but the Department did not offer the new plans

into evidence during the trial. Although Father contends the record does not establish that

he received a copy of the new family service plan or that he knew of its existence, the

Department produced a permanency conference participation list dated March 31, 2011;

according to the caseworker, at that conference, the requirements of the new plan were

explained to the parents in detail. Thus, there is some support for the trial court’s implicit

finding that Father was aware of the terms of his family service plan.

       Father also challenges the trial court’s finding that he failed to visit his children on

a regular basis, arguing that he is excused from the requirement to have regular visits

because the record shows that he was incarcerated. However, the evidence shows that

Father was not incarcerated during some of the periods that the parents were no longer

the managing conservators of the children, and that he did not visit them regularly when

he was not incarcerated. The testimony at the termination hearing allowed the trial court

to conclude that Father failed to visit the children regularly, and failed to maintain contact

with the Department as required by the family service plan. Although the execution of a

new family service plan was disputed, the trial court could believe the caseworker when

she stated Father was offered a new family service plan that continued the requirements

of the previous plan, that Father was aware of the plan’s requirements because they were

discussed with Father, and that Father failed to complete the service plan.




                                              15
       Father also argues that without evidence in the record regarding his living

conditions at the time of trial, the Department failed to show that he was unable to

provide the children with a safe environment. Nevertheless, a parent’s inability to provide

a safe environment may be established through circumstances such as a vague and

unstable employment history, a lack of a permanent residence when a parent is out of

prison, and a parent’s drug use. See In re D.S.A., 113 S.W.3d 567, 573 (Tex. App.—

Amarillo 2003, no pet.). The caseworker testified that because Father did not obtain and

maintain safe and appropriate housing or stable employment after the children were

placed in the Department’s custody, he failed to comply with the family service plan’s

requirement that he obtain stable housing and employment. Additionally, there is no

evidence that Father made any effort to obtain housing or a caretaker for the children.

       In summary, the evidence that Father disputes is not so significant that the trial

court could not have reasonably formed a firm belief or conviction that Father

constructively abandoned his children and that Father failed to comply with the

provisions in the trial court’s orders as required to allow him to have the children

returned. See Tex. Fam. Code Ann. § 161.001(1)(N), (O).

       Father also challenges the factual sufficiency of the evidence supporting the trial

court’s best interest findings. Father notes that the children were well within the age

range required to be allowed to express their desired living arrangement with the court;

however, the trial court did not interview them in chambers and they were not called to


                                            16
testify. See Holley, 544 S.W.2d at 371-72. No party asked the trial court to interview the

children in chambers during the trial; even without an in chambers interview, the trial

court could accept as credible the supervisor’s unchallenged testimony that after living

together for a year the children had bonded with the foster family and had expressed a

desire to be adopted by them. The evidence regarding what the children desired was

sufficient to allow the trial court to conclude that the children desired to continue to

reside with their foster family.

       We conclude the record contains factually sufficient evidence from which the trial

court could form a firm conviction or belief that terminating Father’s parental rights is in

the best interest of the children. Regarding Father’s parental rights, the record contains

factually sufficient evidence to support at least one of the trial court’s termination

findings and its best interest finding. See J.F.C., 96 S.W.3d at 266.

                                      Endangerment Finding

       In Father’s ninth issue, he argues that we should remand the case to the trial court

to remove the endangerment findings. While we agree that the evidence is legally

insufficient to support a finding that Father’s conduct endangered the children, a remand

for entry of a new judgment is unnecessary. On sustaining a challenge to the legal

sufficiency of the evidence, we are allowed to remove the endangerment finding and

render the judgment the trial court should have rendered. See Tex. R. App. P. 43.3.




                                             17
                                        Conclusion

       We modify the trial court’s judgment to delete the findings that J.M.C. Jr.

“knowingly placed or knowingly allowed the children to remain in conditions or

surroundings which endanger the physical or emotional well-being of the children;” and

“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[.]” As

modified, we affirm the judgment terminating the parental rights of J.M.C. Jr. to his

minor children A.M.C., J.M.C. III, C.D.C. and H.D.C. We reverse the judgment

terminating the parental rights of M.B. to her minor children A.M.C., J.M.C. III, C.D.C.

and H.D.C. We remand the case to the trial court for a new trial on the Department’s

petition to terminate the parental rights of M.B.

       AFFIRMED AND MODIFIED IN PART; REVERSED AND REMANDED IN

PART.




                                                    ________________________________
                                                             HOLLIS HORTON
                                                                 Justice



Submitted on September 26, 2012
Opinion Delivered December 6, 2012
Before McKeithen, C.J., Gaultney and Horton, JJ.




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