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Reversed and Rendered in Part, and = Reversed and=20 Remanded in Part, and Opinion filed March 4, 2008.

 

 

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-07-00140-CV

____________

 

IN THE=20 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=20 O N

This is an=20 appeal from a judgment terminating appellants=3D = parental=20 rights to their minor children.  In five issues each, = appellants=20 challenge the legal and factual sufficiency of the evidence = underlying the=20 findings in the termination order and the appointment of appellee=20 Department of Family & Protective Services (Athe=20 Department@) as sole=20 managing conservator.  We reverse and render in part, and = reverse and=20 remand in part.

I. Factual=20 and Procedural Background

Veronica=20 is the mother of A.S., D.S., and L.A.S.[1] =20 Alan is the father of A.S. and D.S.[2]=20 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=20 marijuana.  The hospital social worker who reported=20 L.A.S.=3Ds positive=20 test result for marijuana to the Department stated that L.A.S.=20 Awas doing=20 fine and not showing any signs of health problems.@  On=20 March 13, 2006, the trial court named the Department as emergency=20 temporary managing conservator of A.S., D.S., and L.A.S.  At = this=20 time, A.S. was 3 years old, D.S. was 2 years old, and L.A.S. was 3 = days=20 old.

Veronica=3Ds=20 childhood was traumatic due to domestic violence and her=20 parents=3D = alcohol=20 and drug use.  She became pregnant with L.P. when she was 13 = years=20 old.[3] =20 After L.P. was born, Veronica met and married Martin De Leon = (ADe=20 Leon@). =20 Veronica remained married to De Leon for approximately one year = during=20 which time De Leon physically abused her.  When De Leon tried = to harm=20 L.P., Veronica left with L.P. and went to her mother=3Ds=20 home.  In 2001, she spent three months at a women=3Ds shelter=20 where she obtained domestic violence = counseling.

In January=20 2002, Veronica began a relationship with Alan.  In October = 2002,=20 Veronica gave birth to their son, A.S.  In October 2003, = their second=20 son, D.S., was born.  From 2002 to 2005, Veronica, Alan, = L.P., A.S.,=20 and D.S. lived together in Beaumont.  During this time, three = referrals were made to Child Protective Services (ACPS@).[4] =20 In April 2003, CPS received a referral alleging neglectful = supervision of=20 L.P. by Veronica and Alan.  The report, however, was = apparently never=20 validated because the family moved.  In July 2004, Alan = spanked L.P.,=20 who was four years old at the time, for wetting his pants.  = Though=20 the spanking left no marks or bruises, Veronica went to a shelter = with=20 L.P. where she spoke with a police officer and a CPS = officer.  After=20 this incident, Veronica spoke with Alan about the spanking.  = Their=20 relationship was not abusive at that time and Alan had never=20 inappropriately disciplined A.S. or D.S.

In 2005,=20 after Veronica and Alan=3Ds home in=20 Beaumont was destroyed by Hurricane Rita, the family moved to = Houston and=20 stayed with Alan=3Ds=20 mother.  According to the 4 C=3Ds report,=20 Veronica filed a police complaint that Alan had again = over-disciplined=20 L.P.  The Department investigated the complaint and advised = Veronica=20 to move into a shelter.  Veronica stayed in a shelter for two = or=20 three weeks and only returned home after Alan convinced her that = he would=20 never again harm L.P. or any of their children.[5] =20 Veronica later decided to send L.P. to live with his great-aunt in = El=20 Campo because the aunt loved L.P. and wanted to care for him, not = because=20 she feared that Alan would harm him.  During this time, = Veronica was=20 pregnant with L.A.S.  She saw a gynecologist in Beaumont = while=20 pregnant with L.A.S. but was unable to obtain pre-natal care once = the=20 family relocated to Houston.[6]

<= SPAN=20 style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 150%; FONT-FAMILY: = Shruti">

Veronica=20 testified that Alan pushed her and pulled her hair on two = occasions early=20 in their relationship, but she denied that he ever struck = her.  While=20 it is unclear when these incidents occurred, the record indicates = that the=20 children did not witness them.  On occasion, she and Alan = raised=20 their voices while arguing, and she said it is possible that the = children=20 overheard these arguments.  The only other evidence of = domestic=20 violence was from the Department=3Ds case=20 worker, Kateika Bonner (ABonner@), who=20 testified that Veronica told her that she and Alan had = Agot[ten]=20 into it one night.@

In April=20 2006, following removal of the children from the family home, the=20 Department prepared a family service plan (Athe=20 plan@) with a=20 long-term goal of family reunification.  Bonner met with = Veronica to=20 discuss the steps that she needed to complete to be reunified with = her=20 children.[7] =20 Veronica began immediately working toward completion of the=20 requirements.  She visited A.S. and D.S. every two weeks and = L.A.S.=20 weekly.  Bonner testified that the visits went well and that = Veronica=20 bonded with all three children during these visits.  Veronica = wrote=20 often to Aher child=20 with whom she had contact.@[8] =20 Alan visited his children once but Bonner was unable to observe = the visit=20 because she was in a training class at the = time.

In June=20 2006, Veronica and Alan were indicted on charges of aggravated=20 robbery.   The Department subsequently placed the = children in=20 foster homes.[9] =20 Bonner spoke with several of Veronica and Alan=3Ds=20 relatives regarding placement of the children, including=20 Veronica=3Ds mother=20 (AMs.=20 Pena@) and=20 Alan=3Ds=20 mother.  According to Bonner, her supervisor told her that = placing=20 the children with Ms. Pena would be problematic because of her = criminal=20 history.[10] =20 Placement of the children with the paternal grandmother was not an = option=20 because the grandmother=3Ds=20 boyfriend did not have a social security number.  However, = the=20 Department did not conduct a home study on either grandmother to = determine=20 whether placement of the children would be otherwise=20 appropriate.

A bench=20 trial was held on January 18, 2007.[11] =20 At the time of trial, the children remained in foster care and no=20 prospective adoptive homes had been identified.  In closing=20 arguments, both Veronica=3Ds attorney=20 and the guardian ad litem requested that the trial court order the = Department to complete a home study on Ms. Pena.  The = guardian ad=20 litem informed the trial court that she did not believe the = Department had=20 met its evidentiary burden supporting termination of Veronica and=20 Alan=3Ds parental=20 rights.  Upon recessing the proceedings for one week, the = trial court=20 directed the Department to conduct a home study on Ms. Pena.  = However, no home study was ever conducted.  On January 25, = 2007, the=20 trial court terminated Veronica=3Ds parental=20 rights to A.S., D.S., and L.A.S., and Alan=3Ds rights=20 to A.S. and D.S.  The court also appointed the Department as = sole=20 managing conservator of the children.

II.=20 Standard of Review

Involuntary=20 termination of parental rights is a serious matter implicating = fundamental=20 constitutional rights.  Holick v. Smith, 685 S.W.2d = 18, 20=20 (Tex. 1985).  Due to the severity and permanency of the = termination=20 of parental rights, the burden of proof at trial is heightened to = the=20 clear and convincing standard.  See Tex. Fam. Code = ' = 161.001;=20 In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). A>Clear and=20 convincing evidence=3D = means the=20 measure or degree of proof that will produce in the mind of the = trier of=20 fact a firm belief or conviction as to the truth of the = allegations sought=20 to be established.@ =20 Tex. Fam. Code = ' = 101.007; In re J.F.C., 96 S.W.3d at 264.

When=20 reviewing factual findings required to be made by clear and = convincing=20 evidence, we apply a standard of review that reflects this burden = of=20 proof.  In re S.M.L., 171 S.W.3d 472, 476 (Tex.=20 App.CHouston=20 [14th Dist.] 2005, no pet.).  When reviewing the legal = sufficiency of=20 the evidence, we consider all of the evidence in the light most = favorable=20 to the finding to determine whether a reasonable factfinder could = have=20 formed a firm belief or conviction that the finding was = true. =20 Id. (citing In re J.F.C., 96 S.W.3d at 266).  = In doing=20 so, we assume the factfinder resolved disputed facts in favor of = the=20 finding if a reasonable factfinder could do so, and we disregard = all=20 evidence that a reasonable factfinder could have disbelieved or = found to=20 have been incredible.  Id.  However, because of = the=20 heightened standard, we must also be mindful of any undisputed=20 evidence contrary to the finding and consider that evidence in = our=20 analysis.  In re J.F.C., 96 S.W.3d at 266 = (ADisregarding=20 undisputed facts that do not support the finding could skew the = analysis=20 of whether there is clear and convincing evidence.@).

Under a=20 factual sufficiency review, we also must determine whether a = factfinder=20 could reasonably form a firm belief or conviction about the truth = of the=20 allegations.  In re S.M.L., 171 S.W.3d at 476.  = When=20 reviewing a factual sufficiency challenge, the analysis is = somewhat=20 different in that we must consider all of the evidence equally, = both=20 disputed and undisputed.  In re J.F.C., 96 S.W.3d at=20 266.  If, in light of the entire record, the disputed = evidence=20 that a reasonable factfinder could not have credited in favor of = the=20 finding is so significant that a factfinder could not have = reasonably=20 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=20 re J.F.C., 96 S.W.3d at 266).

III.=20 Analysis

In order=20 to terminate parental rights in Texas, the State bears the burden = to prove=20 the following: (1) the parent committed one or more acts = specifically=20 listed in section 161.001(1) of the Texas Family Code as grounds = for=20 termination; and (2) termination is in the child=3Ds best=20 interest.  = See=20 Tex. Fam. Code=20 ' = 161.001;=20 In re J.L., 163 S.W.3d 79, 84 (Tex. 2005);  In re = U.P.,=20 105 S.W.3d 222, 229 (Tex.App.CHouston=20 [14th Dist.] 2003, pet. denied).  Here, the trial court found = that=20 termination was warranted under three separate statutory grounds = and that=20 termination would be in the children=3Ds best=20 interest.  The trial court also appointed the Department as = sole=20 managing conservator of appellants=3D = children.  In their first three issues, Veronica and Alan = challenge=20 the legal and factual sufficiency of the evidence of the statutory = grounds=20 for termination.  In their fourth issue, they challenge the = legal and=20 factual sufficiency of the evidence that termination is in the=20 children=3Ds best=20 interest.  In their fifth issue, Veronica and Alan challenge = the=20 appointment of the Department as sole managing conservator of = their=20 children.

A.     =20 Statutory Grounds for Termination

The=20 Department sought to terminate appellants=3D = parental=20 rights under subsections (D), (E), and (N) of section 161.001 of = the=20 Family Code, which provide for termination if the trial court = finds by=20 clear and convincing evidence that the parent has done the=20 following:

(D) knowingly = placed or=20 knowingly allowed the child to remain in conditions or = surroundings which=20 endanger the physical or emotional well‑being of the = child;

(E) engaged in = conduct or=20 knowingly placed the child with persons who engaged in conduct = which=20 endangers the physical or emotional well‑being of the child; = [or]

. . . .=20

(N) constructively = abandoned=20 the child who has been in the permanent or temporary managing=20 conservatorship of the Department of Family and Protective = Services or an=20 authorized agency for not less than six months, and:

(i) the department = or=20 authorized agency has made reasonable efforts to return the child = to the=20 parent;

(ii) the parent has = not=20 regularly visited or maintained significant contact with the = child;=20 and

(iii) the=20 parent has demonstrated an inability to provide the child with a = safe=20 environment.

Tex.=20 Fam. Code ' = 161.001(1)(D), (E) & (N).

Subsections=20 (D) and (E) both focus on endangerment, but they differ with = regard to the=20 source and proof of endangerment.  In re S.M.L., 171 = S.W.3d at=20 477.  Subsection (D) concerns the child=3Ds living=20 environment, rather than the parent=3Ds conduct,=20 though parental conduct is certainly relevant to the = child=3Ds=20 environment.  Id; In re J.T.G., 121 S.W.3d 117, = 125=20 (Tex. App.CFort Worth=20 2003, no pet.).  Although the parent need not have certain = knowledge=20 that an actual injury is occurring, the parent must at least be = aware of=20 the potential for danger to the child in such an environment and = must have=20 disregarded that risk.  In re C.L.C., 119 S.W.3d 382, = 392=20 (Tex. App.CTyler=20 2003, no pet.).  Living conditions that are merely = Aless-than-ideal@ = do not=20 support a finding under this section.  Texas=20 Dep=3Dt of Human=20 Svcs. v. Boyd, 727=20 S.W.2d 531, 533 (Tex. 1987).  Under subsection (E), the cause = of the=20 endangerment must be the direct result of the parent=3Ds conduct=20 and must be the result of a conscious course of conduct rather = than a=20 single act or omission.  In re J.T.G., 121 S.W.3d at=20 125.  Endangerment can be exhibited by both actions and = failures to=20 act.  In re U.P., 105 S.W.3d at 233.  We look = first at=20 subsection (D).

1.      =20 Subsection (D)

(a)    =20 Veronica

In her=20 first issue, Veronica argues that the evidence is legally and = factually=20 insufficient to terminate her parental rights under subsection (D) = because=20 (1) the Department offered no evidence of the environment in which = A.S.=20 and D.S. lived; (2) she never had custody of L.A.S. and, = therefore, could=20 not have exposed him to an environment that endangered his = physical or=20 emotional well-being; and (3) the evidence of domestic violence = was=20 insufficient to show that she knowingly placed her children in an=20 endangering environment.

The=20 Department introduced no evidence of the actual physical = surroundings or=20 conditions of the children=3Ds=20 environment.  It is also undisputed that the Department took = L.A.S.=20 into custody shortly after he was born because he tested positive = for=20 marijuana.  However, the Department argues that termination = is=20 supported by the following evidence: (1) prior to her relationship = with=20 Alan, Veronica lived with an abusive husband, thereby exposing her = son,=20 L.P., to an abusive environment; (2) Alan pushed Veronica and = pulled her=20 hair on two occasions; (3) Alan over-disciplined L.P. twice; and = (4)=20 Veronica engaged in criminal activity after the Department took = her=20 children into custody.

First, the=20 evidence of domestic violence committed by Veronica=3Ds first=20 husband toward Veronica and L.P. does not support the termination = of=20 Veronica=3Ds parental=20 rights to A.S., D.S., and L.A.S. under subsection (D).  The = abuse=20 directed toward Veronica and L.P. by her first husband, with whom = she no=20 longer lived, occurred before A.S., D.S., and L.A.S. were born, = and in a=20 living environment to which they were never exposed. =20

The=20 Department next contends that evidence that Alan pushed Veronica = and=20 pulled her hair on two occasions, and over-disciplined L.P. twice, = demonstrates that Veronica provided an unsafe home = environment. =20 Abusive or violent conduct by a parent or other resident of a=20 child=3Ds home may=20 produce an environment that endangers the physical or emotional = well-being=20 of a child.  In re D.C., 128 S.W.3d 707, 715 (Tex.=20 App.CFort Worth=20 2004, no pet.); In re C.L.C., 119 S.W.3d at 392B93. =20 With regard to Alan=3Ds conduct=20 toward Veronica, the evidence was undisputed that the incidents = did not=20 occur when the children were around and that the children never = witnessed=20 Alan=3Ds anger=20 toward her.  Regarding the occasions when Alan disciplined = L.P., the=20 first instance involved spanking the child after he wet his = pants. =20 Veronica testified that the spanking left no marks.  The = second=20 instance occurred when Alan over-disciplined L.P. due to stress = over=20 losing the family home during Hurricane Rita.  The record is = silent,=20 however, as to how Alan disciplined him or whether A.S. and D.S. = witnessed=20 the discipline.  Veronica went to a shelter after the first = incident=20 and later spoke to Alan about the spanking.  Following the = second=20 incident, Veronica stayed in a shelter for several weeks and only = returned=20 home after Alan assured her that he would never again harm L.P. or = any of=20 their children.  There is no evidence that any subsequent = incidents=20 occurred.  Therefore, even assuming Alan=3Ds behavior=20 was abusive and occurred in front of the children, Veronica took=20 responsive action to protect A.S. and D.S. by taking them out of = the=20 environment.

Third, the=20 Department also asserts that Veronica=3Ds actual=20 and alleged criminal activity after her children were taken into = custody=20 demonstrates that she placed them in an endangering = environment. =20 Specifically, the Department refers to one week in April 2006 = during which=20 Veronica was incarcerated for hindering the apprehension of a = felon, and=20 to her indictment for aggravated robbery and subsequent = incarceration in=20 June 2006.

Imprisonment=20 of a parent, standing alone, does not constitute endangerment of a = child=3Ds=20 emotional or physical well-being.  In re S.M.L., 171 = S.W.3d at=20 478.  Nonetheless, imprisonment is a factor the trial court may = consider.=20  See Boyd, 727 S.W.2d at 533; In re S.M.L., 171 = S.W.3d=20 at 478.  As for her indictment, Veronica had not been = convicted of=20 any crime at the time of trial and, therefore, what confinement = she might=20 serve, if any, is speculative.  See In re D.T., = 34=20 S.W.3d 625, 638B39 (Tex.=20 App.CFort Worth=20 2000, pet. denied) (finding appellant=3Ds pending=20 charges in other states amounted only to Apossibilities@ = as to her=20 future incarceration).

We find=20 the evidence legally and factually insufficient to support = terminating=20 Veronica=3Ds parental=20 rights under section 161.001(1)(D) of the Family Code.  = Accordingly,=20 Veronica=3Ds first=20 point of error is sustained. 

(b)    =20 Alan

In his=20 first issue, Alan contends that the evidence is legally and = factually=20 insufficient to support termination of his parental rights under=20 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=3Ds=20 environment caused their physical and emotional well-being to be=20 endangered; and (3) his acts or omissions which allegedly placed = the=20 children in a dangerous environment.

As=20 previously noted, the Department did not present any evidence of = the=20 actual physical surroundings of the children=3Ds=20 environment prior to their being taken into custody.  In = support of a=20 finding under subsection (D), the Department proffered evidence = that Alan=20 pushed Veronica and pulled her hair on two occasions and = over-disciplined=20 L.P. twice.  However, as discussed above, no evidence showed = that=20 A.S. and D.S. witnessed any of these events.  We do not find = such=20 evidence to be of a clear and convincing nature so as to support a = finding=20 of endangerment under subsection (D).

The=20 Department also contends that Alan=3Ds criminal=20 activity before and after the births of his children supports = termination=20 of his parental rights under subsection (D).  Specifically, = the=20 Department refers to his probationary status for a burglary = offense=20 committed in September 2001 and his indictment on charges of = aggravated=20 robbery in June 2006.  Several Texas courts have recognized = that the=20 possibility of a parent=3Ds=20 incarceration can negatively impact a child=3Ds living=20 environment and well-being and may be sufficient to show=20 endangerment.  In re S.M.L., 171 S.W.3d at 479 = (AWhen=20 parents are incarcerated, they are absent from the = child=3Ds daily=20 life and are unable to provide support, and when parents like = appellant=20 repeatedly commit criminal acts that subject them to the = possibility of=20 incarceration, that can negatively impact a child=3Ds living=20 environment and emotional well‑being.@); In=20 re C.L.C., 119 S.W.3d at 393; In re S.D., 980 S.W.2d = 758, 763=20 (Tex.App.CSan=20 Antonio 1998, pet. denied).  Alan=3Ds criminal=20 acts, however, do not support a finding under subsection (D) for = several=20 reasons.  First, Alan was given probation for his burglary=20 conviction, not imprisonment.  Second, as to his indictment = on=20 charges of aggravated robbery, although he was incarcerated while = awaiting=20 trial on that charge, there was no conviction at the time of the=20 termination hearing and, thus, the length of imprisonment, if any, = was=20 speculative.  See In re D.T., 34 S.W.3d at=20 638B39. =20 In the absence of other endangering conduct, Alan=3Ds=20 incarceration while awaiting trial is insufficient to support = termination=20 under subsection (D).  In re S.M.L., 171 S.W.3d at 478 = (noting=20 imprisonment, alone, does not suffice to support termination under = subsection (D)).

We find=20 the evidence legally insufficient to support the termination of=20 Alan=3Ds parental=20 rights under section 161.001(1)(D) of the Family Code.  = Accordingly,=20 his first issue is sustained.

2.      =20 Subsection (E)

(a)    =20 Veronica

In her=20 second issue, Veronica argues that the evidence is legally and = factually=20 insufficient to terminate her parental rights under subsection (E) = because=20 (1) the evidence of domestic violence is insufficient to = demonstrate that=20 she engaged in conduct that endangered her children=3Ds=20 well-being; and (2) her use of marijuana while pregnant with = L.A.S. does=20 not constitute the requisite continuing course of = conduct.

The=20 Department argues that evidence of Veronica=3Ds abuse at=20 the hands of her former husband and Alan, in addition to her = criminal=20 activity after her children were taken into custody, support = termination=20 under subsection (E).  Our previous discussion of this = evidence under=20 subsection (D) is applicable here.  First, the abuse directed = toward=20 Veronica and L.P. by her former husband occurred before A.S., = D.S., and=20 L.A.S. were born and, therefore, does not demonstrate that = Veronica=20 knowingly placed her children with someone whose conduct = endangered their=20 well-being.  Second, as to the evidence that Alan pushed her = and=20 pulled her hair on two occasions, it is uncontroverted that the = children=20 did not witness this conduct.  Moreover, we do not find that = these=20 two incidents, as reflected in this record, constitute the type of = continuing course of conduct contemplated by the statute.  = Finally,=20 Veronica=3Ds=20 incarceration while awaiting trial, standing alone, is = insufficient to=20 support termination of parental rights.  In re S.M.L., = 171=20 S.W.3d at 478.

The=20 Department also contends that Veronica=3Ds use of=20 marijuana during her pregnancy with L.A.S. endangered him as well = as her=20 older children because her conduct could have impaired her = judgment and=20 exposed her to incarceration.  The use of illegal drugs = during=20 pregnancy may be considered endangering conduct that supports = terminating=20 parental rights.  In re J.T.G., 121 S.W.3d at = 125. =20 Veronica asserts, however, that a single use of marijuana does not = constitute a Avoluntary,=20 deliberate, and conscious course of conduct@ = sufficient to support a termination finding under subsection = (E).[12] =20 We agree. 

While=20 unquestionably, an exercise of poor judgment, Veronica=3Ds use of=20 marijuana on a single occasion, standing alone, does not rise to = the level=20 of a conscious course of conduct.  See Ruiz v. = Texas=20 Dep=3Dt of=20 Family and Protective Svcs., 212=20 S.W.3d 804, 818 (Tex. App.CHouston=20 [1st Dist.] 2006, no pet.) (noting termination under subsection = (E) must=20 be based on more than single act or omission); In re = S.M.L., 171=20 S.W.3d at 477 (same); In re J.T.G., 121 S.W.3d at 125 = (same).  According to the 4 C=3Ds report,=20 the hospital social worker who first reported L.A.S.=3Ds positive=20 test result for marijuana to the Department also stated that = L.A.S.=20 Awas doing=20 fine and not showing any signs of health problems.@ =20 Further, Veronica testified that she smoked marijuana only in an = attempt=20 to alleviate severe back pain and after her friend assured her = that it=20 would not harm her unborn child, and that she regretted it = afterwards.[13] =20 While the trial court could have chosen to disbelieve this = testimony, we=20 are mindful that under a factual sufficiency review we must = consider all=20 of the evidence equally.  See In re J.F.C., 96 S.W.3d = at=20 266.  Moreover,=20 the undisputed evidence that Veronica took pre-natal vitamins = during her=20 pregnancy undermines the argument that she consciously engaged in = a course=20 of conduct that endangered her children=3Ds=20 well-being.

We find=20 the evidence both legally and factually insufficient to support=20 termination of Veronica=3Ds parental=20 rights under section 161.001(1)(E) of the Family Code.  = Accordingly,=20 her second issue is also sustained.

(b)    =20 Alan

In his=20 second issue, Alan argues that the evidence is legally and = factually=20 insufficient to support termination under subsection (E) because = (1)=20 spanking L.P. does not constitute endangering conduct; and (2) he = had no=20 knowledge of Veronica=3Ds use of=20 marijuana during her pregnancy and, therefore, did not knowingly = place his=20 child with someone who engaged in endangering conduct.[14] =20 In support of termination under subsection (E), the Department = argues that=20 Alan=3Ds physical=20 abuse of Veronica and L.P. as well as his criminal activity = constitute=20 evidence of a course of conduct that endangered the physical and = emotional=20 well-being of his children. 

As=20 discussed above, we do not find that Alan=3Ds conduct=20 toward Veronica, as reflected in this record, constitutes the type = of=20 continuing course of conduct required under this section. =20 Furthermore, the undisputed evidence reflects that the children = did not=20 witness Alan=3Ds=20 conduct.  The Department also urges us to consider = Bonner=3Ds=20 testimony that Veronica told her that she and Alan had = Agot[ten]=20 into it one night.@ =20 This conduct, however, does not demonstrate that Alan engaged in = conduct=20 that endangered his children=3Ds=20 well-being.  Bonner admitted on cross-examination that she = did not=20 know how Veronica and Alan Agot into=20 it,@ = or=20 whether the incident involved a physical altercation.  = Moreover, this=20 single incident does not demonstrate the type of conduct = contemplated by=20 the statute.

The=20 Department also contends that the two occasions when Alan = over-disciplined=20 L.P.  support the trial court=3Ds finding=20 of termination under subsection (E).  The Department does not = contend, nor does the record reflect, that Alan inappropriately=20 disciplined A.S. or D.S.  Rather, it is the = Department=3Ds position=20 that by excessively disciplining L.P., Alan engaged in conduct = that=20 endangered A.S. and D.S.=3Ds=20 well-being.  The first incident occurred in 2004 when Alan = spanked=20 L.P. after the child wet his pants.  Veronica testified that = the=20 spanking left no marks and no criminal complaint appears to have = been=20 filed.  This court has held that infrequent spankings of a = child that=20 leave Amarks@ = or=20 visible bruises 24 hours after the spanking do not constitute = sufficient=20 evidence to demonstrate that a parent has engaged in conduct that=20 endangered a child=3Ds physical=20 or emotional well-being.  In re J.A.J., 225 S.W.3d = 621,=20 629B31 (Tex.=20 App.CHouston=20 [14th Dist.] 2006), aff=3Dd in part,=20 rev=3Dd in part=20 on other grounds, __ S.W.3d __, No. = 07-0511, 2007=20 WL 3230169 (Tex. Nov. 2, 2007).  Here, the=20 record shows that Alan spanked L.P. on one occasion, and = Veronica =20 testified that the spanking did not leave any marks or = bruises.  If=20 the spanking would be insufficient evidence of endangering conduct = toward=20 L.P., it is similarly insufficient, if not more so, as to A.S. or=20 D.S.

According=20 to the 4 C=3Ds report,=20 the second incident occurred in 2005 when Alan over-disciplined = L.P. due=20 to his stress over losing the family home during Hurricane = Rita. =20 There is, however, no evidence as to how Alan disciplined = him.  We=20 also find no evidence to indicate whether A.S. or D.S. witnessed = the=20 discipline.  Although the decision to terminate the = parent-child=20 relationship under subsection (E) does not require that the = conduct be=20 directed toward the child, it does require that it be committed in = the=20 presence of the child.  See Ziegler v. Tarrant Co. Child = Welfare=20 Unit, 680 S.W.2d 674, 678 (Tex. App.CFort Worth=20 1984, writ ref=3Dd n.r.e.);=20 see also In re U.P., 105 S.W.3d at 233 (noting that=20 parent=3Ds conduct=20 need not be directed at child or that child actually be injured to = support=20 finding of endangerment).

The=20 Department also argues that Alan=3Ds=20 probationary status in 2001 and his indictment on charges of = aggravated=20 robbery in 2006 constitute conduct sufficient to support = termination under=20 this section.  We disagree for several reasons.  First, = Alan was=20 given probation for his burglary conviction, not = incarceration. =20 Second, he was indicted on charges of aggravated robbery, not = convicted,=20 and, thus, confinement, if any, is speculative.  See = In re=20 D.T., 34 S.W.3d at 638B39. =20 Third, absent other evidence of endangering conduct, mere = imprisonment=20 will not constitute conduct which endangers the emotional or = physical=20 well-being of a child.  See Boyd, 727 S.W.2d at=20 534.

Finally,=20 we also reject the Department=3Ds argument=20 that, by engaging in conduct he knew could result in his = imprisonment and=20 separation from his children, Alan engaged in a voluntary, = deliberate, and=20 conscious course of conduct that endangered his children.  To = accept=20 such a premise would effectively nullify the longstanding rule = against=20 terminating the parental relationship based solely on = imprisonment. =20 See In re D.T., 34 S.W.3d at 635.

We find=20 the evidence legally and factually insufficient to support = termination of=20 Alan=3Ds parental=20 rights under section 161.001(1)(E).  Accordingly, his second = issue is=20 sustained.

3.      =20 Subsection (N)

In their=20 third issue, Veronica and Alan contend that the evidence is = legally and=20 factually insufficient to support the termination of parental = rights under=20 section 161.001(1)(N) of the Family Code.  Under this ground, = the=20 Department must prove that (1) the parent has constructively = abandoned the=20 child who has been in the permanent or temporary managing = conservatorship=20 of the Department or an authorized agency for not less than six = months;=20 (2) the department or authorized agency has made reasonable = efforts to=20 return the child to the parent; (3) the parent has not regularly = visited=20 or maintained significant contact with the child; and (4) the = parent has=20 demonstrated an inability to provide the child with a safe=20 environment.  Tex. = Fam. Code=20 ' = 161.001(1)(N).  If there is legally insufficient evidence of = any of=20 the four elements, the complaint will be sustained.  See = In re=20 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=20 subsection (N).  To determine whether termination was = warranted under=20 this provision, we turn to the record before us.

(a)    =20 Veronica

After the=20 Department took her children into custody, Veronica visited A.S. = and D.S.=20 every two weeks and L.A.S. weekly until she was jailed in June = 2006. =20 Bonner testified that  the visits went well and that Veronica = was=20 bonding with all three of them during their visits.  After = she was=20 incarcerated, however, she was no longer able to visit them due to = the=20 seriousness of the offense with which she was charged.  = Veronica=20 testified that she wrote often to her child with whom she had=20 contact.  Bonner testified that Veronica did not contact her = during=20 her incarceration, and there is no evidence that she had any = contact with=20 A.S., D.S., or L.A.S. during the six-month period preceding = trial. =20 Veronica provided the Department with a list of her sisters who = could care=20 for her children during her incarceration.  She also asked = that her=20 mother be permitted to care for her children, but the Department = would not=20 approve the placement due to Ms. Pena=3Ds criminal=20 history.  At the conclusion of the proceedings on January 18, = 2007,=20 the trial court instructed the Department to perform a home study = on the=20 maternal grandmother, but it never conducted one.

  =20        In light of the entire = record, we do=20 not believe that the Department has satisfied its burden under = subsection=20 (N) as to Veronica.  We find the evidence factually = insufficient to=20 enable a reasonable factfinder to form a firm belief or conviction = that=20 Veronica did not regularly visit or maintain significant contact = with her=20 children.  We also find the evidence to be factually = insufficient to=20 show that Veronica demonstrated an inability to provide her = children with=20 a safe environment.  Although the Department may have been=20 justifiably concerned at the outset as to whether Ms. Pena would = prove an=20 appropriate care provider for her grandchildren in light of her = criminal=20 history, it conducted no home study on her, even after being = directed to=20 do so by the trial court.  The record is also silent as to = why no=20 home study was performed on the maternal aunts other than the one = with=20 whom A.S. and D.S. spent one month.  In re D.S.A., 113 = S.W.3d=20 567, 573 (Tex. App.CAmarillo=20 2003, no pet.) (noting that incarcerated parent can provide safe=20 environment for child through identification of friend, relative, = or=20 spouse as care provider).  The Department had the burden to = satisfy=20 all of the elements under subsection (N) by clear and convincing=20 evidence.  We conclude that it has not done so.  = Accordingly,=20 Veronica=3Ds third=20 issue is sustained.

(b)    =20 Alan

Regarding=20 Alan, the record reflects that during the three-month period = between the=20 time the Department took custody of his children in March 2006 = until he=20 was incarcerated in June 2006, Alan visited his children only = once. =20 Bonner testified that she was in a training session during this = one visit=20 and was unable to observe Alan=3Ds=20 interaction with his children.  She also testified = that=20 Alan=3Ds brother=20 came often to visit the children.  No evidence = indicates=20 whether Alan made any attempts to communicate with his children = after he=20 was incarcerated.  Bonner testified that she spoke with=20 Alan=3Ds mother=20 and sister regarding alternative placement of the children.  = The=20 Department ruled out Alan=3Ds mother=20 after she was unable to provide a social security number for her=20 boyfriend, and it did not conduct a home study on her.  The = record is=20 silent as to whether Alan=3Ds sister=20 or brother were considered for placement.

We find=20 the evidence sufficient to support the trial court=3Ds finding=20 that Alan did not attempt to visit his children regularly or = maintain=20 significant contact with them.  Other than one visit during = the=20 three-month period after they were placed in the = Department=3Ds custody=20 and before he was incarcerated, the record does not reflect any = other=20 attempt by Alan to contact them.  We find that the Department = has=20 satisfied its burden with regard to the third element.

However,=20 we do not believe the Department has met its burden for the fourth = elementCthat the=20 parent has demonstrated an inability to provide the child with a = safe=20 environment.  Although Bonner spoke with Alan=3Ds sister=20 about placing the children with her, the record does not reflect = whether=20 the Department rejected her as a potential placement and, if so,=20 why.  There is also no mention whether the Department = considered=20 Alan=3Ds brother=20 as a relative placement.  Further, although the Department = initially=20 ruled out the paternal grandmother because she did not provide the = Department with a social security number for her boyfriend, no = follow-up=20 or home study appears to have been done to determine whether she = was an=20 otherwise appropriate relative to care for the children.  The = Department asserts that Alan Adid not=20 suggest that he could do anything to provide the children with a = safe=20 environment.@ =20 However, as the party seeking the termination of parental rights, = the=20 Department bears the burden of proof under section 161.001(1)(N) = to show=20 that he was unable to do so.  See In re D.T., 34 = S.W.3d at 641=20 (noting caseworker=3Ds=20 statement at trial that appellant had not shown she could provide = safe,=20 stable home for child improperly reversed burden of=20 proof).

We find=20 the evidence factually insufficient to support termination of=20 Alan=3Ds parental=20 rights under section 161.001(1)(N) of the Family Code.  = Accordingly,=20 Alan=3Ds third=20 issue is sustained.[15]=20

B.     =20 Sole Managing Conservatorship

In their=20 fifth issue, Veronica and Alan contend that, if we reverse that = portion of=20 the trial court=3Ds order=20 terminating their parental rights, we must also reverse the = portion=20 appointing the Department as sole managing conservator of the=20 children.  This is so, they argue, because the trial=20 court=3Ds=20 conservatorship appointment was a direct consequence of the = termination of=20 their parental rights, and, therefore, reversal of the termination = of=20 their parental rights necessitates reversal of the appointment of = the=20 Department as sole managing conservator.  The Department, = however,=20 contends that we are precluded from considering this issue because = appellants did not include it in their statement of appellate = points=20 presented to the trial court pursuant to Texas Family Code section = 263.405.  See Tex.=20 Fam. Code ' = 263.405(b).  In the alternative, the Department argues that = the trial=20 court=3Ds=20 conservatorship appointment was based on a ground independent from = its=20 decision to terminate appellants=3D = parental=20 rights and, therefore, should be upheld.

The Texas=20 Supreme Court recently issued two decisions that bear directly on = our=20 disposition of this issue.  In In re = J.A.J., __ S.W.3d __, No. = 07-0511,=20 2007 WL 3230169 (Tex. Nov. 2, 2007), the Court resolved a split = among=20 appellate courts regarding whether it is necessary to specifically = assign=20 error to the Department=3Ds appointment as = conservator=20 when a judgment terminating parental rights is reversed.  = Id.=20 at *2.  In that case, the Department sought termination of = the=20 mother=3Ds parental rights to = her child=20 and requested conservatorship pursuant to sections 153.005 and=20 153.131.  Id. at *1.[16] =20 The trial court terminated the mother=3Ds parental rights and = appointed=20 the Department the child=3Ds sole managing=20 conservator.  Id.

On appeal, the mother = claimed=20 that the evidence was insufficient to support the termination = decision,=20 but she did not assign error to the conservatorship = appointment. =20 Id.  The court of appeals determined that the evidence = was=20 insufficient to support termination under Texas Family Code = section=20 161.001(1)(D) and (E) and reversed the trial court=3Ds judgment, including = that=20 portion appointing the Department as the child=3Ds conservator. =20 Id.

In its=20 petition for review, the Department challenged only the portion of = the=20 court of appeals=3D = judgment=20 that reversed its appointment as the child=3Ds managing=20 conservator.  Id. at *2.  In its analysis, the = Court=20 noted that the trial court found that (1) appointment of the = parent as=20 conservator would not be in the child=3Ds best=20 interest because it would significantly impair his physical health = or=20 emotional development, and (2) appointment of the Department as = managing=20 conservator was in the child=3Ds best=20 interest.  Id. at *3.  The Court concluded that=20 A[t]hese=20 findings satisfy not only the fundamental requirement that the = court=20 consider the best interest of the child, ... but also the more = specific=20 findings necessary to justify the Department=3Ds=20 appointment under section 153.131.@ =20 Id.  In light of the differing elements and standards = of=20 review applied to conservatorship and termination orders, the = Court=20 concluded that a challenge to the Department=3Ds=20 appointment as the child=3Ds=20 conservator was not subsumed in the appellant=3Ds=20 challenge to the termination order.  Id.  In the = absence=20 of assigned error, the Court reversed the portion of the court of=20 appeals=3D = judgment=20 that reversed appointment of the Department as the = child=3Ds sole=20 managing conservator.  Id. at = *6.

In In=20 re D.N.C., __ S.W.3d __, 2008 WL 344806 (Tex. Feb. 8, 2008) = (per=20 curiam), the Court considered a similar challenge to a court of=20 appeals=3D = reversal=20 of a trial court=3Ds=20 conservatorship order.  In the case reviewed in = D.N.C.,=20 styled below as Colbert v. Department of Family & = Protective=20 Services, the Department sought termination of the = mother=3Ds parental=20 rights to her seven children.  See 227 S.W.3d 799, 802 = (Tex.=20 App.CHouston=20 [1st Dist.] 2006), pet. denied, In re D.N.C., __ = S.W.3d __,=20 2008 WL 344806 (Tex. Feb. 8, 2008).  The trial court found = that the=20 mother had endangered her children and terminated her parental = rights=20 under section 161.001(1)(D).  Id. at 807.  = Without=20 making any additional findings, the trial court appointed the = Department=20 as the children=3Ds managing=20 conservator.  Id.

On appeal,=20 the mother challenged the sufficiency of the evidence supporting = the=20 termination order, but she did not separately challenge the = appointment of=20 the Department as the children=3Ds managing=20 conservator.  Id.  The court of appeals reversed = the=20 termination order on factual insufficiency grounds and reversed = the=20 conservatorship appointment.  Id. at 816.  = Reasoning that=20 no findings had been made under Family Code section 153.131 that = would=20 independently support the conservatorship order, the appeals court = concluded that the Department=3Ds=20 appointment was solely the consequence of the trial = court=3Ds=20 termination decision under section 161.207 and had to be reversed = as=20 well.  Id.[17]

=

In a per=20 curiam decision, the Court addressed the Department=3Ds argument=20 that reversal of the conservatorship order was erroneous in light = of its=20 recent decision in J.A.J.  In re D.N.C., 2008 = WL=20 344806, at *1.  The Court emphasized that while the = Department in=20 J.A.J. had requested conservatorship pursuant to Family = Code=20 section 153.131 and the trial court had made the specific findings = the=20 statute requiresCi.e., that=20 appointment of a parent as managing conservator would not be in = the=20 child=3Ds best=20 interest because it would significantly impair his physical health = or=20 emotional development, and that appointment of the Department was = in the=20 child=3Ds best=20 interestCthe only=20 available statutory mechanism for the Department=3Ds=20 appointment in the instant case was as a consequence of the = termination=20 pursuant to Family Code section 161.207.  Id. at = *1.  It=20 therefore concluded that J.A.J. did not apply, and that the = mother=3Ds=20 challenge to the conservatorship appointment was subsumed in her = appeal of=20 the termination order.  Id.  With these = guidelines in=20 mind, we consider Veronica and Alan=3Ds=20 challenge to the appointment of the Department as sole managing=20 conservator of A.S., D.S., and L.A.S.

On March=20 13, 2006, the Department filed its AOriginal=20 Petition for Protection of a Child, for Conservatorship, and for=20 Termination in Suit Affecting the Parent-Child = Relationship.@  In=20 section 13 of the complaint, the Department requested that it be = appointed=20 the children=3Ds sole=20 managing conservator A[p]ursuant=20 to '' = 153.005=20 and 263.404.@  It=20 further stated that A[a]s=20 grounds for appointment of the Department ... as Managing = Conservator, the=20 Department alleges pursuant to ' = 153.131=20 of the Texas Family Code that the appointment of the parent or = parents=20 would not be in the best interest of the children because the = appointment=20 of the parent or parents would significantly impair the=20 children=3Ds physical=20 health or emotional development.@  In=20 its Final Decree for Termination, under the section entitled = AConservatorship=20 of the Children,@ = the trial=20 court ordered that the Department be appointed sole managing = conservator=20 of A.S., D.S., and L.A.S. and found Athis=20 appointment to be in the best interest of the = children.@  No=20 additional findings were made.

Because=20 the trial court made no findings under section 153.131 that would=20 independently support the conservatorship order, we conclude that = the=20 Department=3Ds=20 appointment was solely the consequence of the trial = court=3Ds=20 termination decision under Family Code section 161.001(1).[18] =20 In accordance with D.N.C., we conclude that Veronica and=20 Alan=3Ds=20 challenge to the conservatorship appointment was subsumed in their = appeal=20 of the termination order.  Because we reverse the portion of = the=20 trial court=3Ds order=20 terminating Veronica and Alan=3Ds parental=20 rights under section 161.001(1), we also reverse the portion of = the order=20 that appointed the Department as the sole managing = conservator.  We=20 sustain appellants=3D = fifth=20 issue.

IV. = Conclusion

Accordingly, we = reverse that=20 portion of the trial court=3Ds decree = terminating=20 Veronica=3Ds parental rights = to A.S.,=20 D.S., and L.A.S., and render judgment denying the = Department=3Ds request to = terminate=20 Veronica=3Ds rights to A.S., = D.S., and=20 L.A.S.  We reverse that portion of the decree terminating=20 Alan=3Ds parental rights = to A.S. and=20 D.S., and render judgment denying the Department=3Ds request to = terminate=20 Alan=3Ds rights to A.S. = and=20 D.S.  In addition, because it was not supported by findings = separate=20 and apart from the findings supporting the termination, we also = reverse=20 that portion of the decree appointing the Department as the sole = managing=20 conservator of A.S., D.S., and L.A.S., and remand the case to the = trial=20 court for the limited purpose of rendering an order, consistent = with=20 Family Code section 161.205.[19]

 

 

 

/s/     =20 Wanda McKee Fowler

Justice

 

Judgment=20 rendered and Opinion filed March 4, 2008.

Panel=20 consists of Justices Yates, Fowler, and Guzman.


[1]  To protect the privacy of the = parties in=20 this case, we identify the parents by fictitious names, and we = identify=20 the children by their initials.  See Tex. Fam. Code = ' 109.002(d).

[2]  A paternity test revealed that = Alan is not=20 the biological father of L.A.S.  In its final order, the = trial court=20 also terminated the parental rights of L.A.S.=3Ds unknown father.

[3]  L.P. is not a = subject of this=20 suit.

[4]  This evidence was = presented=20 through a family evaluation report prepared by the = Children=3Ds Crisis Care = Center on April=20 24, 2006 (A4 C=3Ds = report@).

[5]  The 4 C=3Ds report also reflects that, in February = 2006, CPS=20 received a referral alleging physical abuse and neglectful = supervision of=20 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=20 incident in its brief.

[6]  The evidence is conflicting as to = why=20 Veronica was unable to obtain pre-natal care for L.A.S. in = Houston. =20 The 4 C=3Ds report reflects that she was unable to = get her=20 medical records from Beaumont.  However, at trial she = testified that=20 no physician was willing to take her as a new patient because of = her=20 advanced pregnancy.  Notwithstanding, she continued to take = pre-natal=20 vitamins throughout her pregnancy.    =

[7]  Veronica=3Ds plan required that she complete = parenting=20 classes, participate in therapy, submit to drug assessments, = maintain=20 stable housing and employment, and attend court hearings. =20 Alan=3Ds plan required that he submit to = paternity=20 testing, inform the case worker of his intentions and desires with = respect=20 to permanency of the children, provide documentation demonstrating = stable=20 housing and employment, allow access to his home for home study,=20 participate in individual counseling, cease criminal activity, and = attend=20 court hearings.

[8]  We presume that she was referring = to her=20 oldest child, L.P., who was being cared for by his=20 great-aunt.

[9]  During = Veronica=3Ds incarceration, = one of her=20 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=20 creating problems in her marriage.

[10]  Ms. Pena testified that she had = been=20 convicted of forgery in 1978, making a terroristic threat in 1985, = and=20 theft by check in or around 1999.

[11]  Although awaiting = trial in=20 the Harris County jail on charges of aggravated robbery, both = Veronica and=20 Alan appeared and testified at the termination hearing. =20

[12]  The 4 C=3Ds report states that Veronica admitted=20 Ato trying marijuana a few times in her=20 life,@ although it is unclear when those = occasions=20 occurred.  Moreover, Alan=3Ds uncontroverted testimony that he had = no=20 knowledge that Veronica had used drugs and that he had never = smelled the=20 substance on her suggests that her prior usage occurred before the = birth=20 of her children.  In any case, there is no direct = evidence=20 that Veronica had an ongoing narcotics problem that would support = a=20 finding under this section.  See Ruiz v. Texas=20 Dep=3Dt of Family and = Protective=20 Svcs., 212=20 S.W.3d 804, 818 (Tex. App.CHouston [1st Dist.] = 2006, no=20 pet.).

[13]  We are unaware of = any cases=20 in which a single use of marijuanaCor any = drugCduring pregnancy = has, alone,=20 been held sufficient to constitute a Acourse of = conduct@ to support = termination under=20 subsection (E).  Cf. In re M.D.V., No. 14-04-00463-CV, = 2005 WL=20 2787006, at *5 (Tex. App.CHouston [14th = Dist.] Oct. 27,=20 2005, no pet.) (mem. op.) (finding appellant engaged in course of = conduct=20 that endangered child in light of her extensive drug use for ten = years,=20 particularly while pregnant and while caring for her children, her = inability or unwillingness to abstain from drug use after child = was born=20 marijuana positive, and her relapse after children were returned = to her);=20 In re S.M.L.D., 150 S.W.3d 754, 757B58 (Tex. = App.CAmarillo 2004, no = pet.)=20 (holding mother=3Ds drug use during pregnancy and after = child was=20 removed from her care, in face of random drug testing that placed = her=20 relationship with child at risk, was legally and factually = sufficient=20 evidence that she engaged in course of conduct which endangered = her=20 child).

[14]  The Department does not attempt = to argue=20 that Veronica=3Ds use of marijuana during her pregnancy = is=20 evidence that Alan knowingly placed his children with someone who = engaged=20 in endangering conduct.  Thus, we need not address this=20 argument.

[15]  Having found the evidence = insufficient=20 under section 161.001(1)(D), (E), and (N), we need not address=20 appellants=3D fourth issue challenging the trial=20 court=3Ds conclusion that termination was in the = children=3Ds best interest.

[16]  Section 153.005 provides = generally that in=20 a suit affecting the parent-child relationship, Athe court may appoint a sole managing = conservator=20 or may appoint joint managing conservators.@  Tex. Fam. Code = ' 153.005.  Section 153.131 creates = a=20 rebuttable presumption that a parent should be appointed the=20 child=3Ds managing conservator Aunless the court finds that appointment = of the=20 parent or parents would not be in the best interest of the child = because=20 the appointment would significantly impair the child=3Ds physical health or emotional=20 development.@  Id. ' 153.131(a).

[17]  Section 161.207 provides that the = court=20 shall appoint a suitable managing conservator A[i]f the court terminates the = parent-child=20 relationship with respect to both parents or to the only living=20 parent.@  Tex. Fam. Code = ' 161.207(a).

[18]  We note that while the Department = in=20 D.N.C. did not request conservatorship under section = 153.131, the=20 Department in this case did make such a request.  The = Department=20 relies on this fact to argue that although the trial court did not = specify=20 the statutory basis on which it relied to appoint the Department = as=20 conservator, or issue any findings of fact, we may nonetheless = infer that=20 the court made the necessary findings to support the = conservatorship=20 appointment under section 153.131.  We disagree.  In=20 J.A.J., the Court emphasized that the trial = court=3Ds specific finding that appointment of a = parent as=20 the child=3Ds conservator would not be in his best = interest=20 because it would significantly impair his health or emotional = development=20 was necessary to justify the Department=3Ds appointment under section = 153.131.  2007 WL=20 2320169, at *3.  In the absence of such a finding by the = trial court=20 here, we will not infer one.

[19]  When reversing the trial = court=3Ds judgment or appealable order, we = ordinarily=20 render the judgment or order that the trial court should have=20 rendered.  See Tex. R.=20 App. P. 43.3; Colbert, 227 S.W.3d at 816.  = However, in=20 a case involving the involuntary termination of parental rights, = if the=20 trial court does not order termination of the parent-child = relationship=20 (which becomes the case here because we have reversed the trial = court=20 order and have rendered judgment that appellants=3D parental rights are not terminated), = Family Code=20 section 161.205 requires that the trial court either (1) deny the = petition=20 for termination, or (2) render any order in the best interest of = the=20 child.  See Tex. Fam.=20 Code ' 161.205.  As an appellate court, = we are not=20 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=20 child.  Colbert, 227 S.W.3d at 816.  = Circumstances=20 concerning the child or parent may have changed since the trial = court=20 rendered its final order, a matter that requires a = factfinder. =20 Id.  We are therefore unable to render a judgment that = disposes of all remaining issues in the case and must remand the = case in=20 part to the trial court for further proceedings under section=20 161.205.  See id. & n.15 (A[S]ection 161.205 becomes applicable on = remand=20 because we have reversed the trial court order and have rendered = judgment=20 that appellant=3Ds parental rights are not = terminated. =20 Section 161.205 is the controlling authority for how the trial = court must=20 proceed on remand.@).

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