## NO. 12-07-00196-CV
IN THE COUR T OF APP EALS
TWELFTH COURT OF APP EALS D ISTRICT

TYLER, TEX AS

IN THE INTERE

ST OF § APPEAL F ROM THE 307TH
A.T.S. A ND M.D.S., § JUDICIAL DISTRI CT COURT OF
MIN OR CHI LD REN § GR EG G C OU NTY, TE XAS

MEMORA NDUM OPIN ION Pa tr ic k S. and

Kr istin a D. appea l th e tr ia l c ourt ’s or de r t e rm inatin g the ir pa re nta l r ig hts to their sons, A.T.S. and M.D.S. I n five iss ues, t hey contend the evidenc e is insufficient to support the order , the trial cour

t used an improper

proce dure, imper

miss i b l y s h i ft ed the bur den of pr oof, and failed to make a necessar

y finding of ex traordina

ry circ umstances to extend the tempora ry manag ing

c on se rv a tor sh ip, and

Te xas F a mil y

Cod e Se c tio n 2 63 .4 05 (i ) i s unc on sti tut ion a l. We a ff ir m.

B ACKG ROUND The De partment of F amily and Protec tive Service s filed a petition f or protec tion of a child, for c onservatorship, and for te rmination of the par ent-c hild relationship on Febr uary 1, 2006. At the time, A.T.S. was one y ear and nine months old and M.D.S. w as eig ht months old. The pe tition was supported by

an af fidavit explaining that the c hildren had be en re moved from th e parents the day befor e d u e to th e ir h o me e n v ir o n me n t an d c o n c e r n s f o r th e ir p h y s ic a l c ar e
. T h e D e p artme nt was

a pp oin te d te mpo ra

ry so le mana g ingc on se rv a tor of the bo y s, and

the y we re pla c e d in

fo ste r h ome s. The pa rties ag ree d to a family

service plan, and the tr ial court notified Patric k and Kr istina that the fa ilure to c omp ly

c ou ld r e su lt i n th e re str ic tio n o r t e rm inatio n o f p are nta l r ig hts

.2

At a status hea

ring held Marc h 14, 2 0 0 6 , i t wa s shown that Patrick and K ristina wer e ho me le ss, te ste d p os iti ve fo r c oc a ine , a nd ne e de d p are nti ng c la sse s and ps y c ho log ic a l e va luatio ns
. A hea ring was he ld J une 13, 2006 for judicial revie w. Both pa rents had se cure d jobs but sti ll had

no ho me of

the ir ow n, c on tin

ue d to te st p os iti ve fo r d

ru g s, and ha d o the rw ise no t c omp lie d w iththe ir

se rv ic e pla

n. An oth e r j ud ic ial re vie w h e ari ngwa s h e ld N ov e mbe r 1 5, 20 06 . Patr ic k w a s n ot i n attendanc e. I t was reported that Kristina had completed parenting classes and a ninety day stay at Kirkpatric k Rehabilitation Center, pre viously tested neg ative for drug s, and g otten a job. H oweve r, she still ne ed ed to par

ticipate in a psy cholog ical eva luation, find a home of he r own, a nd attend

c ouns e lin g . T he c ourt

fo un d th a t ne ith e r p are nt h a d d e mon str a te d a de qu a te and a pp ro pr ia te compliance with the service plan. O nJ an u ar

y 1 8 , 2 0 0 7 , K

r i s t i n a an d P a t r i c k f i l e d a m o t i o nf o r e x t e n s i o no f

t i m e o f 1 8 0 d a ys from the curr ent di smissal date, which was Februa ry 5, 2007. They

asser ted that they

had complete d many of the re quirements of the ir fa m i l y s er v i ce pla n. They reque sted additional time for the Depa rtment to asce rtain that their ne w living a rra ng ement wa s a saf

e and suitable p l ac e fo r t he children a

nd t h en to beg in a monitored re turn of the c hildren. Evidenc e wa s prese nted on that motion at the hear ing on January 22, 2007. At the hearing , Kristina t estified that she had c omplied with the Family Service Plan. She

rec eived dr

ug assessment, c o u n s eli ng , and re habilitation. She got a job a s a ca shier and ha d

re ma ine d d

ru g fr e e
. She a dmi tte d tha t she ha d not co mpl e te d a nd re tur ne d s ome do c ume nts Chi ld Protective Servic es (CPS) asked for . She moved in with a man name d Courtney when she g ot out of Kirkpatrick. But she left hi m beca use he was abusive. O ther than that, she had stay ed aw ay from pe op le e ng a g e d in

c ri mi nal a c tiv ity . Sh e wa s li vin g in a ho me in L ibe rt

y City wi th P a tr ic k, his br oth e r D a mon , a

nd Da mon ’s g ir lf

ri e nd , D e ly

nd a . T he y

pla nn e d to sh are the ren t and ho us e ho ld

c ho re s. P at ri ckwa s re l ea s edfr o m a d ru g re h ab i l i t at i o n fa ci l i t y l es s t h an a we ek b ef o re t h e h ea ri n g. Kristina testified that an oilfie ld job was ava ilable for him to take. K ristina asked the court for an extension of six months so that she and Patrick could c ontinue to work towar d completing their plan and have a monitored re turn of the c hildren. On cr oss examination, Kristina s tated that she completed her psy cholog ical testi ng last May3

an d h adn o tp ar t i ci p at ed

i np s y ch o l o gi ca l ev al u at i o n s s i n ce t h en
. S h e ad m i t t ed t h at s h e d i d n o tgo t o co u n s el i n g that CPS arr ang ed. Instead, she a rra ng ed to g o to Kirkpatrick. Since leaving Kirkpatric k, she had not take n a drug test on the same da y she wa s reque sted to take it and ha d never submitt ed to a ha ir follicle test. She stated t hat s he did not work forty hours a wee k. She worke d about thirty

hours a we ek and was not se eking full time e mploy ment. Patrick had not g one to work even thoug h he had been out of reha bilitation for over a wee k. Kristina had not par ticipated in fa ce to fac e home visits with her ca seworke r. She said she had be en visiting he r childre n regularly and would be able to ge t insurance on them throug h her employ er. There was a phone at the r esidenc e, but she had no car and relied on Dely nda for transportation. I f g iven an e x tension, she would save money for da y car e, esta

blish her own re sidence , and g et a c ar. No furthe r evide nce w as off ere d on the m otion to ext end. The trial court c arr ied the motion, explaini n g t hat it would be consider ed as the rest of the evidenc e wa s hear d that day , leaving the option open as a possible r esult of that hear ing. The De partment then pr esente d its evidence on the motion for termination. Erica Ay ers, a Child Protective Servic es investig ator, a ccompa nied by a police of

fice r, we nt to Kristina’s a p ar tment on J anuar y 31, 2006 in response to a repor t the Depa

rtment had re ceive d. There was no elec tricity , the house wa s cluttered, a nd the kitchen surf

ace s were cover ed in leftove r fo od and tr a sh . T he a

pa rtme nt w a s unsa

nit ary . T he re wa s a

ba by c ri b, bu t it

wa s n ot i n a

us a ble condition. The childre n wore only diaper s and we re dirty ; the o l d er ch i l d appea red le tharg ic. Kristina looked as thoug h she had not bathed in sever al day s and appe are d to be under the influenc e
o f s o m e s u b s t an c e
. A ye r s r e m o v e d t h e c h i l dr e nf

r o m t h e h o m e th a td ay. A

. T

. S

. w a s s e e nb y a doctor a nd found to be de velopmentally delay ed, malnourished, and under the influenc e of c ocaine

. Both pa rents also tested positive f or drug s. Ba sed on the exist ence of some bruises on K ristina’s leg and Patrick’ s volatile temper, Ay ers suspec ted domestic violence

. Kristina took the stand ag ain and e x plained that she a n d Patrick had lived in a n apar tment in G la de wate r a

t th e ti me the c hil dr e n w e re take n. I n F e br ua ry , th e y liv e d w itha

fr ie nd in Gladew ater

and then lived with Patr ick’s cousin in K ilgor e. After leavingthe cousin’s home, the y rente d a room at a motel. I n J uly , she moved to Kirkpatrick Rehabilitation Center whe re she stay ed until the first week in Oc tober. She had worked at a department st ore in Gladew ater

. Other than odd4

jobs, Patrick did not work. After she g ot out of Kirkpatric k, she m oved in with another man, whom she re ported for

abusing her. She move d out of that home on De cembe r 20. Kr ist ina a dmi tte d th a t sh e and

Pa tr ic k h a d a

n a bu siv e re la tio ns hip . K

ri sti na did no t kn owif Patrick had g one to a

ny counseling

. As far as she knew , Patrick had not he ld a job since F ebrua ry 2006. She hear d Patrick threaten a CPS worker w hen they wer e not allowed to se e their c hildren. Kr i s t i n a h a d a h a i r f

o l l i c l e t e s t i n F e b r

u ar y 2 0 0 6 t h a t w a s p o s i t i v e f o r c o c a i n e
. S h e a lso tested p o s i t i v e fo r coc aine on Ma rch 22. A fter that, she took drug tests severa l day s after being asked to rather than w ithin twenty -four hours as re quested by

CPS . Since her

rele ase f rom Kirkpatric k in October , she had not attended any counseling sessions. She attended one Alcoholics Anony mous (AA) me eting . She had not paid any of the court order ed child support. She said she had bee n looking f

or a full time job but ha d not a ctually applied any wher e. Kristina explained that she w a s w o r

k in g w h e n A

. T

. S. in g e s te d c o c a in e s o s h e d id n o t h a v e an y e xp la n a ti o n for it. She testified that Patrick told her that L eona Me rrill, someone they did dr ug s with, came ove r the nig ht befor e CPS came to the house. Patric k told her Merrill broug ht some L ittle Debbie’s br ownies that had cr ack c ocaine in them and A.T.S. ate some of t he brow nies. When she came home fr om work, she noticed he had a f

ever and she thoug ht he was sick, but she did not take him to a doctor. Neither of her children ha d routine che ckups. Kristina said that Patric k provided he r with coc aine. On cross examination, Kristina admit ted t hat s he had not saved any money , and she had no plan in place for living arr ang ements if she a nd Patrick sepa

rate d. At t h e t i m e t h e children w ere taken a way , she wa s wo rk i n g as an exotic dance r. When she wor ked, Patrick took c are of the children. Patric k worke d at “odd jobs” a nd sometimes had a “ rea l job” for short pe ri o d s o f time. The nig ht A.T.S. had a hig h feve r, Kristina was worrie d about him, but she had no ve hicle or phone

and did no t take him to the ho sp ita l. She sa id that if the c ourt g a ve the m an e xten sio n of six mo nth s, they would establish t h ei r o wn residence a nd g et a ve hicle. Kr istina testified that, last March or April, they

went throug h psy chologi cal testing, and she stated that she ha d completed pa renting

c la sse s. P at ri ck admitted that he te sted positive for coc aine in F ebrua ry 2006 and at other

times betwee n Fe bruar

y and De cembe r. He said he us ed co ca ine on Dec ember 8 and che cked into Oak Have n Treatment Center for reha bilitation on December

10. He sa id he had joined the Navy in 19905

to avoid a convic tion for selling coca ine. Since then, the long est time he had be en “clean” was fr om 1995 to 1997. The we ek bef ore CPS took the children, he had spent $400.00 to $500.00 on coca ine

and sa id h e ha d p ro ba

bly sp e nt t hat amou nt o n c oc a ine e a c h w e e k s inc e the n. He ha d pa id no c hil d support since the c ase be g an. He hauled sc ra p i ro n , s o l d copper , and had a full time job for three

we e ks in Augus t. I n compliance with his service plan, he submitt ed to the psy cholog ical eva luation and a dr ug assessment, and completed the treatment at Oak Have n. He of fer ed no excuse for

not completing the plan’s requireme nts “other than [ he] was spun out on drug s.” He said there we re times whe n he tr ie d to have a

dr ugte st, bu t CPS h a d n ot p ro vid e d th e pa pe rw or k s o h e wa s n ot a

ble to h a ve the te st done. He had been t o two meeting s since leaving O ak Haven. Patrick summed up his position by

ex p l ai n i n g:

I know I ha ven’ t b een a go o d d ad

. I’ ve p rob ab l y b een t he wo rs t da d on t he p l anet

. I have
a d rug p rob l em , and I’ m t ry i ng t o wo rk t hrough my d rug p rob l em
. A nd I’ m go i ng t o be a goo d f at her, and I wan t m y ki ds back. I t hi nk I d es er ve my ki ds back. I ’ ve got a l ot o f m aki ng up t o do

. W hat eve r t he C o urt s ees f

i t t hat I need t o do , I’ m wi l l i ng t o do t hat t o get m y ki d s b ack.

On cr oss examination, P atrick e x plained that he w ent to Oak Have n beca use he r ealized that nothing in his lif

e wa s wo rk i n g. He ha s two teena g e sons from a previous mar

riag e. He was involved in supporting a

nd raising them, chang ing dia pers a nd coac hing little league. Howeve r, they have no t w ante d to se e him be c a us e of his dr

uga dd ic tio n. Th e old e r o ne ha d e xpre sse d in te re st i n
se e inghim

sin c e he we nt t o O a k H a ve n. Pa tr ick adm itted that he ha d n ot p a id t

he $2 50 .0 0 in monthly child support for them since 2005. Pa tr ic k e xpla ine d th a t, o n th e nig ht b e fo re the De pa rtme nt t oo k th e c hil dre n, tw o o f h is friends c ame ove r to smoke cr ack c ocaine with h i m wh i l e Kr i s t ina was at work. One of them broug ht some L ittle Debbie snac ks. A.T.S. ate par t of a brownie but w ould not finish it. A.T.S. had trouble sleepingthat night a nd was shaking

. Patrick di d not have a phone, so he did not call anyone for h el p . Patrick re g retted w hat had ha ppened a nd insinuated that the fr iend deliber ately g ave
c oc a ine to A .T .S. in o ne of the br ow nie s w ith ou t Patr ick’s kn ow le dg e . H e sa id h e wo uld c omp ly with c ourt order s, rema in c alm when the children do something wrong , help them with sc hool work, and re ad to them. He said the home he sha res with his brother

is a g ood, clea

n, safe environment for6

children. Patrick had a

job lined up in th e oilfield that would pay $15.00 an hour a

nd would require him to work seventy

or eig hty hours a we ek. He stated that he had the skills to g et and hold a job

and wa s lo ok ingfo rw ard

to r a isi nghis c hil dr e n. He sa id he wo uld be wo rk ing by F ri da y and wo uld be able t o pay

his bill s and provide f

or his family . Wit hin three months he would have his own residenc e. He explained that he and Kr istina had bee n eng ag ed for two and a half y ear s. He did not kn owwh y

the y ha d n ot g ott e n ma

rr ie d, bu t he pla

nn e d to g e t ma

rr ie d in the ne xt co up le of

mon ths

. He knows that children should not be ar ound drug s and said he was not going to do drug s any more. He a dmitted he had neve r take n his children to a doc tor or a c linic but s ai d that, in an

e me rg e nc y , h e kn e w h owto g e t he lp. He a dmi tte d th a t he and Kr ist ina ha d an a bu siv e re la tio ns hip and he ha d left bruises on he r. He explained that he did not pay the elec tric bill at the apa rtment beca use of his drugaddiction, but he wa s t u rning his life around. H e believe d that it was best for the childre n if they

lived with their pare nts. Martha Christian testified that she i s the C ASA volunteer gua rdian for the childre n. When she first met A.T.S., he was almost two y ear s old and could not speak. He exhibi ted a poor g ait and ha d e ig ht c a vit ie s. He ha s ha d ph y sic a l the ra py and sp e e c h the ra

py
. I nit ia lly , K

ri sti na and A. T. S. did no t se e m to have muc h o f a re la tio ns hip. Kri stina

did no t se e him

fr om F e br

ua ry un til July b ec au s e s h e di d n o t p as s h er dru g t es t s
. By t h e da t e of t h e h ea ri n g, t h ey

we re i n t er ac t i n g, al t h o u gh there was no bond betwee n them. They play ed together , Kristina was a ffe ctionate towa rd him, and he se e me d ha

pp y to se e he r. He c a lle d he r ma ma
. M. D. S. re a c te d to Kri sti na the wa y he re a c te d to others. Kr istina did not see him until she g ot out of Kirkpatric k in O ctober . Christian testified that she could not see that A.T.S. and M.D.S. wer e bonded in a ny way
. At visits, t hey

play ed side by

side but n o t i n t er ac t i v ely . When the visit was over, they happily went with the per son who took them back to their

respe ctive foster

pare nts. Si nce g etting out of Kirk p at ri ck , Kr istina had missed four vis its . Ch ri sti an s ta te d th at M. D. S.’ s f os te r m oth e r w ante d to a do pt h im. Chr ist ian w a s p re se nt o nce whe n Patr ic k v isi te d th e c hil dr e n. A. T. S. p ull e d a wa y and did not seem comfor

table. M.D.S. did not seem to have a ny rec ollection of Patrick. Chr ist ian e xpla ine d th a t in the ir No ve mbe r m e e tin g , Kr ist ina wa s told sh e c ou ld a sk fo r h e lp with housing and furnishing s, but by the December meeting nothing had been done . When she found7

out Kristina’s new a ddress, she did not visit. Kristina never invited her and she “did not fee l secure ” in goingthere . She was a fra id o f P at ri ck an d whoever lived there with them. Christi an did not believe Kristina completed a psy cholog ical evaluation or an outpatient treatment pr ogra m for substance a

buse. She testified that Kristina needed a lot of suppor t, which she ha d not had, and she had not had a

ny homemaking service s. Christian was conc erne d about the instability in Kristina and Patrick’s re lationship because the children neede d a stable home. She said they neede d a home of their own, not with other pe ople. Christian testified th at s he did not believe K ristina and Patrick could meet the ne eds of the c hildren an d i t would be in the childre n’s best intere st to have the pare nts’ rig hts terminated. Kristie Dew

berr y , a ca seworke r for

CPS , enac ted the fa

mily service plan f

o r Kr istina and P a t r i c k o nF e b r u ar y 9 , 2 0 0 6 an d

w o r k e d w i t h t h e m t o a c h i e v e t h o s e g o a l s
. A c c o r d i n g t o D e w b e r r y, Kristina did not complete and r eturn a ll of the nec essar y forms. She did c omplete pare nting c lasses at Kirkpatrick but not the pare nting c lasses at Pare nting Resour ce Ce nter as specifie d by the plan. Kristin a did participate in a drugassessment and e nrolled her self in Kirkpatrick Center for dr ug treatment. Howeve r, at times she did not submit to random drug testing within twenty -four hours

o f t h e r eq u es tas re qu i re d b y t h e p l an
. On e t i m e, Kr i s t i n a w en tt o t h e w r o n g ad dre s s ev en t h o u gh Dewbe rry had g iven her

the cor rec t addre ss. Contra

ry to K ristina’s testimony , Dewbe rry said she had the pr oper pa

perw ork on file at the drug testing f acility in a timely

manner
. I n October , Dewbe rry

told Kristina that she had not complete d the psy cholog ical eva luation

and Kr ist ina sa id s he tho ug ht s he ha d. Th e ps y c ho logis t’ s r e c or ds , w hic h w e re int ro du c e d in to

ev i d en ce , i n d i ca t e t h at Kr i s t i n a c an ce l l edal l ap p o i n t m en t s an d n ev er s h o we d u p fo r t es t i n g. Dewbe rry denied the possibility

that Kristina ac tually went for a psy cholog ical evaluation and the paper work g ot lost. Dewbe rry explained that Kristina had not enrolled in counseling since lea ving Kirkpatric k and counseling would have be en ava ilable to her if she had complete d her psycholog ical evaluation. Dewber

ry stated that, to her knowledg e, P atrick and Kristina had not worked tog ether in counseling on domestic violence issues. Kristina was to g et a job, which she had done, and utiliz e ag encie s such as Medica id, housing

a uth or ity , a

nd WI C, w hic h s he ha d n ot d on e . Sh e wa s to pa rt ic ipate in i nte ns e c hil d d e ve lop me nt, nutrition, and ag e appr opriate c lasses, but she had done none of t hat. The D epar tment was to provide8

her w ith homemaking se rvice s when she e stablished a home. De wber ry ad m i tted that, at the November

and De cembe r mee tings, she told Kr istin a t h at t h e Department c ould help her f ind suitable housing a

nd furnishing s. Dewbe rry repor ted that Kristina had not e stablished and maintained appropriate hous ing or sh ow n th e a

bil ity to b ud g e t f

or re nt a nd uti lit ie s on a monthly ba sis . Kr ist ina pr e vio us ly

liv e d w ith her a busive boy friend a

nd his mother and st epfather. Dewbe rry asser ted that this showed Kristina could not make g ood choice s. As of the date of the he ar i n g, Kr i s tina was stay ing w ith Patrick’s br oth e r. Dewb erry

te sti fi e d th a t li vin g wi th o the r p e op le in t ra ns ie nt s itu a tio ns did

no t c on sti tut e compliance with the plan. Dew berr y had not visited Kristina’s latest residenc e beca use Kristina had only rec ently g iven her the addr ess. Dewbe rry

said it was cr itical that she asse ss Kristina’s living

arr ang ements by

visiti ng the re sidence , but Kristina had d o n e n o thing to fa cilitate a visit by Dewbe rry . She explained that she had not receive d enoug h information about the pe ople Kristina was living with to know if they wer e saf e or a ppropriate to live with the children. Kristina had not g iven any indication that she wa s rea dy to establish her own r esidenc e. Dewbe rry testified that Patrick acc ompanied Kristina when she came to visitthe childre n on Dec ember

22. She did not know he was coming , and he was not a llowed to visit. He ha d done ver y littl e on his pla

n at that time, a lthough the prior summer he complete d a psy cholog ical examination. Dewbe rry stated there was nothing to show that Patrick was of f drug s, and it did n o t ap p ear that Kristina would be a

ble to avoid drugs while she was living with Patrick. De wber ry did not believe th e chil dren c ould safely

be re turned to either

pare nt. The De partment wa nted termination of the pa re nts ’ r ig hts . D e wb e rr

y did no t be lie ve Pa tr ic k and Kr ist ina c ou ld f ulf ill the re qu ir e me nts of

the ir family service plan if g iven an e x tra six m onths. She said it was in the children’ s best interest to not g ive the pa

re nts mor e tim e
. De wb e rr y te sti fi e d that CPS ha d p ut i nto pla c e a ll s e rv ic e s it ne e de d to

an d i twa s t h e p ar en t s ’ a ct i o n s t h at ar e l ac k i n g. Shuronda Thurmond, a CPS supervisor, wa s the ca seworke r on this case from F ebrua ry 2006 until August 2006. Patrick and Kristina wer e to start par enting classes at Parenting Resource Center in April 2006, but they

never showed up. Kr istina did a portion of the psy cholog ical eva luation and was supposed to set up a

n appointment to r eturn and finish but she never did. Every time Thurmond tested them for

drug s, they

both tested positive for coc aine. One time after t es t i n g p o s i tive and9

havin g his vis itatio n r ig hts su sp e nd e d, Pa tr ic k w e nt t o th e CPS o ff ic e “ ra nti ngand ra g ing .” He tol d her ove r the phone that somebody better ge t his “mother f

.....g kids” to the CPS office or somebody was g oing to g et hurt bec ause he was g oing to visit his kids that day

. I n the seve n months Thurmond

wa s in vo lve d wi th the c a se , ne ith e r K ri sti na no r P a tr ic k te ste d c le an f

or dr ug s o r e sta

bli sh e d a sta ble home. Thurmond, who kne w the fa mily Kristina moved in with afte r she lef t Kirkpatrick, stated that family was not a positive influenc e. At that point in the proce eding , the Depa rtment reste d its case, a

nd the cour

t denied Kr istina

and Pa tr ic k’ s mo tio n f

or dir e c te d v e rd ic t. K

ri sti na and Pa tr ic k th e n p re se nte d th e ir wi tne sse s. L aurie Bur

khart, a drug and alc ohol counselor at Kirkpatrick F amily Center, testified a

bout Kr ist ina ’s sta

y the re fr om Jul y

6, 20 06 un til Oct ob e r 1 1, 20 06 . A .T .S. sta y e d w ithKr ist ina

wh ile she wa s there

. Bur

khart said that Kr istina had an e x tensive treatment plan, rec eived c ounseling , and lear ned a lot of parenting skills. After about t wenty -five or thirty day s, Kristina told her she ma de a life c hang e in the ar eas of her life sty le, druguse, occupation, and spi rituality

. Bur khart testified th a t if K r is ti n a w o u ld c o n ti n u e to s ta y c le an an d d o th e r ig h t th in g s , an d if s h e wa s not being controlled by

any one in a r elationship capa city , s h e wo u ld have a chanc e at suc cess in the f uture. I f these othe r thing s were in p lace , she had the ability to provide for

the phy sical and e motional

s ec u ri t y fo r h er ch i l dre n
. Bu rk h ar ts t at edt h at Kr i s t i n a s h o u l d b e i ni n d i v i d

u al an d gro u p co u n s el i n g. Bur khart c ommented that it wa s “ver y positive” that Patrick we nt to Oak Have n. She stated that she

wo uld fi nd it s us pic iou s th a t K

ri sti na re fu se d a hai r fo lli c le te st a nd wo uld be c on c e rn e d if

sh e did

no t r e sp on d q

uic kly to re qu e sts fo r te sts

. She te sti fi e d that it take s thr e e to fi ve da y s f or c oc a ine to b e e l i m i n a t e d

f r o m t h e b o dy. Dely nda B altieria e x plained that her boy friend, D amon, is Patric k’s brother. She and Damon rente d a home in L iberty City

. Patrick and Kristina wer e living there with them, sharing expenses and house h o l d responsibilities. They had fa mily meeting s to work on conf licts. She and Damon both had full time jobs. She did not have a criminal rec ord. Damon had been in trouble wit h the law for possession of ma

rijuana. She ha d some experience wi t h l i t t l e children and having A .T.S. and M.D.S. in the house would not be a pr oblem for them or the landlord. I n the time she had know n Pa tr ic k , h e h a d n o t b e e n dr u g f r e e
. Sh e d id n o t k

n o w Patr ic k an d K

r is ti n a w e ll a t th e time the

c hil dr e n w e re take n a

wa y
. She ha d n e ve r b e e n to the ir a pa rtme nt a nd ha d n e ve r s e e n th e m w iththe ir10

children. H oweve r, Bal t i er i a v o wed to help Patric k g et his children ba ck and sa id that, no matter h o w l o n g i tt o o k

h i m t o g e ta

j o b , h e h a d

a p l a c e t o s t ay. Counsel for Patrick a

nd Kristina then re offe red K ristina’s testimony

on the motion to ex tend and the testimony

Patrick g ave w hen he wa s called by the State. Patrick a

nd Kristina then re sted. Both sides c losed. The c ourt found that the De partment prove d by clea r and convincingevidenc e that Kr istina and Patrick

kno wi ngl y placed or kno wi ngl y a l l o wed the chil d ren t o remain i n co nd i t i o ns o r s urr o und i ngs whi ch end anger t he p hy si cal or em o t i o nal wel l

- b ei ng of t he chi l d ren;

eng age d i n c onduct or kn owi ng l y pl ace d t he chi l dren wi t h per s ons wh o eng age d i n c onduct whi ch end angers t he p hy si cal or em o t i o nal wel l

- b ei ng of t he chi l d ren;

f ai l ed t o c o m p l y w i t h the p rovis i o ns o f a co urt ord er t hat s p eci f i cal l y est ab l i shed t he act i o ns n ec es s ar y f

or t h e [ par en t ] t o obt ai n t h e r et u r n of t h e ch i l dr en wh o h av e bee n i n t h e per manent or t empor ar y ma n ag i n g c on s er v at or s h i p of t h e D epa r t men t of

Pr ot ec t i v e an d Reg u l at or y Se r v i ce s f or n ot l ess t han ni ne m o nt hs as a r esul t of t he chi l d ren’ s rem o val f rom t he p arent unde r Cha p t er 26 2 f o r t he ab use or negl ect of t he chi l d ren. Those finding s were ref

lected in the c ourt’s orde r sig ned January 30, 2 007. Also in that order , the cour

t took the issue of best interest of the children under a dvisement and set a hear ing f or Ap ri l 27 , 20 07 fo r fu

rt he r c on sid e ratio n of that iss ue
. Th e c ourt name d the fol lo wi ng sp e c if ic

ma tte rs to b e re vie we d at th a t he ari ng : th e re su lts of dr ugtests, e mpl oy

me nt o f t

he pa rt ie s, counseling , attendanc e at AAor Nar cotics Anony mous (NA) me eting s, establishment of a r esidenc e and the a bility of the pa rties to budget for monthly expenses, and pay

ment of child support. The court orde red that the Depa rtment of Protec tive and Regulatory Se rv i ce s woul d continue as temporar y mana ging c onservator of the c hildren. F urther, pur suant to Section 263.401(b) of the family code, the court found that it ha d continuing jur isdiction of this sui t, the appointment of the Depa rtment as temporary manag ing conservator continued to be in the best interest of the children, extraordinary

circ umstances e x ist ed , an d an extension of the dismissal date should be g rante d. Acc ording ly , the cour

t ruled that the suit would be dis missed on Aug ust 4, 2007 unless a final orde r
was re ndere d befor e that date

. At the April 27, 2007 hea ring , the State ca lled Patrick to testif y
. He testified that he a

nd Kristina pre sently

resided in a rente d home wit h his brother and hi s brother’ s fianc é. His brother’s11

tw o c hil dr e n o nc e c a me to vis it, and the y sle pt i n th e thi rd

be dr oo m. T hat r oo m di d n ot h a ve be ds , but they slept on foam mattre sses. He started training to work for TCI M Services on A

pril 23. After his nin e ty da y pr ob a tio na

ry pe ri od , h e wo uld

be a ble to g e t in sura

nc e fo r h is c hil dren t

hr ou g h h is employ er. F or the thre e months befor e that, he worke d for a temporar y ag ency . He c laimed to have worke d “pra ctically

ever y day ” but had not paid a

ny child support. He a

nd Kristina had attende d

marr ia g e c ouns e lin g tw ic e
. He ha d b e e n to Oa k H a ve n tw ic e and

to A A o r N A m e e tin g s n ine tim e s. He testified that he did not attend meeting s from about mid-Fe bruar y to mid-March be cause he wa s work in g n ig h ts

. H o w e v e r , h e w a s n o t a b le to f in d h is p ay s tu

b s f o r th o s e w e e k s
. A b o u t a wee k befor e the he aring , they

purcha sed a 1992 Pontiac, w hich broke down two day s befor e the he aring and which he was unable to dr ive beca use his license ha d been suspe nded. Patrick e x plained that he opposed the dental surge ry A.T.S. had bec ause he did not want him “put to sleep” for a surg ery that w a s n ot n e c e ssa

ry . A lth ou g h h e we nt to th e lo cat ion wh e re the surg e ry

too k p la c e , h e ha d to leave to go to wor

k befor e A.T.S. wa s out of surg ery
. On cr oss examination, P atrick r eiterated that he we nt to work rig ht after the last hea

ring and had wor ked “consistently ” si nce then. Howeve r, hi s pay stubs indicated that he wor ked as little as twenty hours per wee k. He a lso ex plained that whe n he got an I D, he would be going to work for another company wher e he w ould work eig hty or ninety hours a we ek. He also stated that Kristina had a job. Patrick testified that, ove r the last thre e months, he and K ristina aver ag ed $1,600.00 ea ch month in income. Their monthly expenses totaled $1,485.00. He did not know how much f ood and

c lot hin g fo r t he c hil dr e n w ou ld c os t. T he y ha d sav e d $70 0. 00 to put do wn on the c ar. Th e y

pr e se ntl y had $315.00 save d and we re c ontinuing to save money to use as a deposit on a house of their own, which he hope d to be able to g et by the end of May

. Patrick testified that someone at the Vete rans As so c ia tio n to ld h im that be c a us e he is a ve te ra

n, he and his de pe nd e nts wo uld

have lif e tim e he a lth insurance . He ex plained that the m eeting he went to at Oak H aven w as like a N arc otics Anony mous meeting . He f

ound it benefic ial and intended to c ontinue to attend thos e meetings as well as the NA and AA me eting s. Patrick pre sented thre e lab repor ts indicating that on those three dates in Mar ch and April when he was tested, he was drug fre e. He vowed to r emain drug fre e for the rest of his life. He be lieved he ha d taken the ne cessa ry steps to show that he and Kristina wer e re ady to beg in the

re un if ic a tio n p ro c e ss w iththe ir c hil dr e n a

nd that r e un if

ic a tio n w a s in

the c hil dr e n’ s b e st inte re st.12

He wa s adama

nt that if the children c ame home with him, he would find a wa y to ge t a bed f

or them to sleep on. Kristina testified that she quit her job as a c ashier at Brookshire ’s in ear ly Marc h beca

use she

wa s n ot g e tti nge no ug h h ours . Sh e wa nte d to sta

y a t ho me and

g e t r e a dy to b e a ho us e wi fe . She did not work for

six wee ks, but beg an wor king at her prese nt job two wee ks befor e the he aring . She had not paid any

of the c ourt order ed child support. Kr istina thought Patrick wa s working ever y day fr om 6 :00 to 6 :00 e xce pt fo r on e nig ht job

. She ha d no t take n ill e g a l dr ug s si nc e July

20 06 . Sh e sti ll had to re ly o n o t h er people f or transpor

tation. On the day

A.T.S. had surg ery , she stay ed at the hospital until 12:15 p.m. but then left beca use she did not want to sit ther e worry ing. A.T.S. was not y et in re co v er y wh en she le ft, and she did not re turn to the hospital. She and Patrick attended

marr ia g e c ouns e lin g tw ic e
. She ne ve r h a d a ps y c ho log ic a l e va luatio n a nd ne ve r s ou g ht t o h a ve CPS

arr ang e counse ling f

or h er. She w ent with Patrick to NA mee tings, but they missed from Fe bruar y 12 until March 12 and from March 29 until April 20. She explained that, at one visitation, Patrick g ot upset and loud beca use M.D.S

. was late. Kristina denied that Patrick g ot upset or ra ised his voice at home. Kr ist ina sa id s he ha d no t mi sse d a ny vis its wi th h e r c hil dr e n a nd Pa tr ic k h a d mi sse d v isi ts

on ly wh e n he wa s un a

ble to g e t of

f w or k. She e xpla ine d th a t Patr ic k s inc e re ly wa nte d to vis it h is children a nd the foster pare nts w ere not a ble to resche dule. She testified that she thoug ht it was rig ht for the c hildren to come home when ther e we re no be ds for them be cause Patrick said they could g et a bed fo r t h em . She said Ba ltieria would baby sit for her w hile she works until she is able to find day car e for

them, but they

had not discussed whe ther Kr istina was to pay her f or baby sitti ng . She explained that Ba ltieria worke d at nig ht, ge tting off at 2:00 a. m . She clar ified that the budg et she and Patrick draf

ted ref lected their prese nt c ircumstance s and there fore did not include expenses for the childre n. Martha Christian te stified that her opinion ha d not c hang ed since the last hear ing, an d s he still believed that termination of the par ents’ rig hts was in the best intere st of the children. She was prese nt for all the visit s Patrick and Kr istina had with their childre n. Sometimes P atrick w as letharg ic and then ve ry

ener g etic. There was a lot of wre stling, roug h play , and cra wling around on the floor. The children laug hed and pla y ed with the par ents but then g ot very stimul ated a

nd hit the13

pare nts, climbed on the furniture , and threw things. Then the pa rents would issue a lot of r eprimands that th e c hil dr e n d id n ot r e sp on d to . In e ve ry on e ho ur vis it, the c hil dr e n ha d be e n pla c e d in tim e ou t. Rather than be ing nur

turing visits, t he visits wer e “wild” acc ording to Christian. She descr ibed an instance w here the ca seworke r aske d the parents not to let the children g et in one cor ner she felt wa s unsafe and Patrick responded by saying, “This is my visit. I ’ll do it my

way .” The next t ime they had a visit , Patrick enc ourag ed A.T.S. to hide in that same c orner during a g ame of

hide and se ek. Sin c e the la st h e ari ng , Patr ic k and Kr ist ina ha d no t so ug ht to i nte ra c t mo re a pp ro pr ia te ly

wi th the c hil dr e n. At

on e vis it, Pa tr ic k g ot v e ry lou d s a y inghe ha d d on e e ve ry

thi ngCPS a sk e d h im t o whi le CP S w o u ld

n o t c o o p e r a te w it

h h im a t a ll

. T h e f

o s te r p ar e n ts le f

t b e c a u s e th e y w e r e a fra id. Christian ex plained that A.T.S. really liked the wrestling, but Patrick’s a ctions evidently frig htened him at that visit and he shied awa y from Patrick. She e x plained that she pr eviously had a w orking relationship wit h Patrick and K ristina, but since the last hea ring they did not speak to her unle ss they had to. Christian stated that she ha d not been to their home . She exp l ained that A.T.S. had improved since be ing in f oster ca re, especia lly in the ar ea of ag g ression. He was much c almer a nd she fe lt the roug h play

was “ the kind of beha

vior that [he had] overcome.” Christian descr ibed M.D.S. as very

calm by nature and ver

y amena ble. She said that, at their visit the day befor e the hear ing, M.D .S. put a pillow between himself a nd Kristina, ac ted ver

y shy , and aske d for his brother

. The Depa rtment rested. Patrick took the stand and descr ibed his visits wi t h h i s chil dren, saying the y

play and roug hhouse. B ut he said Christian’s desc ri p t i o n o f the e x cessivene ss and di s p l ea s ure w as not ac curate. He sa id the play never g ot out of hand, althoug h they wre stled and A.T.S. might punch his mother

. Patrick would tell A .T.S. not to play as roug h with his mot her a s he did wi th h im. He te sti fi e d th a t wa s the e xten t of the kin d of re pr ima nd he g a ve his so n. He sa id A.T.S. loved playing hide and see k, and he de nied there was a ny thing da ng erous about the cor

ner of the room that he wa s warne d about. He e x plained that he ha d discussed child ca re w ith Baltieria , and she w ould watch the boy s while he a nd Kristina work. Howeve r, he felt t hat a mother’s place is at home with the children a nd did not expect her to have to work. He plans to “g et it so she won’t have to. ” He e xpla ine d tha t the c hil dr e n’ s th ing s w e re in s tor a g e , a nd he be lie ve d th e c ri b w a s a t hi s uncle’ s house. Counsel asked the c ourt to take judicial notice of Ba ltieria’s and B urkhar t’s testimony

at the14

previous hea

ring . All parties close d. The trial c ourt found that it was in the bes t i n t er es t o f the children to ter

minate the par ent child re lationship. The trial c ourt’s final or der of termination of par ental rig hts, sign ed by the trial cour

t on May 9, 2007, rec ited that the cour t hear d evidenc e on Janua ry 2 2 , 2 0 0 7 and Apr il 27, 2007 and incorpora ted the cour

t’s finding s of fac t pr onounced on J anuar y 22. The court a lso found by clea r and convinc ing e vidence that termination of t he parent-c hild relationship betwee n Kristina and the children w ho are the subject of this suit, and betwe en Patrick and the childre n who ar e the subjec t of thi s su it, wa s in

the c hil dr e n’ s b e st i nte re st.

T ER M INA TIO N O F P A R ENTA L R I GH TS I n the ir fi rs t iss ue , Kr ist ina and Pa tr ic k c on te nd the e vid e nc e is le g a lly and fact uall y ins uf fi c ie nt t o s up po rt

the te rm inatio n o rd e r. Spe c if ic a lly , the y a sse rt

the e vid e nc e is i ns uf

fi c ie nt t o show that termination is in the best interest of the children. A dditionally , within t h at i s sue, they complain t h at t h e trial court e rre d by ref using to make their re quested finding s of fa ct and conclusions of law . They also contest ce rtain finding s of fac t, inc luding the f ollowing f

indings that

are also set out in the court’s order : that they knowing ly

place d or knowing ly

allowed the c hildren to remain in conditions and surr oundings that endang ere d the phy sical and emotional well being of the childre n, that they

eng ag ed in conduc t or knowing ly place d the childr en wi t h persons who eng ag ed in conduc t that endang ere d the phy sical and e motional well being of the childre n, and that they failed to c omply with the provisions of a court order that established the actions nec essar y for them to obtain the return of the children. Additionally , they contest the c onclusion of law that the Depa rtment should be appointed mana g ing c onservator of the c hildren. Stand ard of Review I n revie wing the leg al suffic iency o f t he evide nce to support ter mination findings, an appellate court should look at all the evide nce in the lig ht most favorable to the finding to determine whether a re asonable trier of fac t could have formed a firm belief

or convic tion that its finding was true. In r eJ. F.C

. , 96 S.W .3d 256, 266 (Tex. 2002). In order that proper defe renc e is shown to the fac t finder’ s role, an a

ppellate c ourt must presume that the fac t f inder settled disputed fa cts in favor of its finding if a rea sonable fac t f inder could do so and disreg ard all evidenc e that a r easona ble fa ct15

finder could have disbelieved or f ound incre dible. Id

. Howeve r, a revie wing court is not require d to ignor e all evide nce not supporting the f inding be cause that might bias a clea r and c onvincing analy sis. Id

. The a ppropriate standard f

or re viewing a fa ctual sufficiency challeng e to the ter

mination finding s is whether the evidenc e is such tha t a fa ct fi n der c ould rea sonably form a f irm belief or conviction about the t ruth of the pe titioner’s alleg ations. In r eC.H
. , 89 S.W .3d 17, 25 (Tex. 2002). I n det er m i n i ng whether

the fa ct finder

has met this standard, a

n appellate court c onsiders all the evidenc e in the re cord, both that in support of and contra ry to the trial court’s finding s. Id . at 27-29. Fur ther, a n appellate court should consider whether disputed evidenc e is such that a r easona ble fa ct finder c ould not have re conciled that disputed ev i d en ce i n favor of its finding. In r eJ. F.C
. , 96 S.W .3 d at 266. I f, in light of the entire r ecor d, the disputed evidenc e that a r easona ble fa ct finder

c ou ld n ot have c re dit e d in fa vo r o f t he fi nd ingis s o s ig nif

ic ant t hat a fa c t f ind e r c ou ld n ot r e a so na

bly have f ormed a firm belief

or convic tion, then the evidenc e is fac tually insufficient. Id

. This sta n d ar d re t ai n s the defe renc e an a ppellate c ourt must have for the fa ct finder ’s role. In r eC.H
. , 8 9 S. W.3 d at 26 . A dd iti on a lly , th e tr ie r of fa c t is the e xclu siv e jud g e of the c re dib ili ty of the witnesses and the weig ht to be g iven their testimony

. Nordstrom v. Nordstrom , 965 S.W .2d 57 5, 58 0 ( Te x. Ap p. –H ou sto n [1s t D ist .] 19 97 , p e t. d e nie d) . T hu s, our r e vie w mus t no t be so rig orous that only

fac t findings e stablished bey ond a rea sonable doubt could withstand review

. In

re C.H
. , 89 S.W .3d at 26. Appli cable Law I nv olu nta ry te rm inatio n o f p are nta l r ig hts e mbo die s f un dame nta l c on sti tut ion a l r ig hts

. Hol ic k v . Smith , 6 85 S.W. 2d

18 , 2 0 ( Te x. 19 85 ). A t e rm inatio n de c re e is “ c omp le te , f ina l, irrevoc able [and] divests for all time the pare nt and child of a ll lega l rig hts, privilege s, duties, and power s with respec t t o ea ch o ther e x cept f or the c hild’s rig ht to inherit.” Wiley v. Spratlan , 543 S.W .2d 349, 352 (Tex. 1976). Be cause a ter mination a ct i on “per

manently sunders” the bonds betwee n a par ent and c hild, the proce eding s must be strictly scrutinized. Id . Howeve r, par ental rig hts are not a

bsolute, and it is vital that the emotional and phy sical intere sts o f t h e ch i ld not be

sacr ificed at the expense of pre servingthat rig ht. In r eC.H
. , 89 S.W .3d at 26. Section 161.001 of the Te x as Family Code permits a c ourt to order termination of par ental16

rig hts if two elements a

re e stablished. T EX
. F AM
. C ODE ANN . § 16 1. 00 1 ( Ve rn on Sup p. 20 07 ). F ir st, the par ent must have e ng ag ed in any one of the acts or omissi ons itemiz ed in the first subsec tion of the statute. T EX
. F AM
. C ODE ANN . § 16 1. 00 1( 1) ; Gre e n v . T e x. De p’ t of Pr ote c tiv e& Re

gul ato ry Se rv s. , 25 S.W .3d 213, 219 (Tex. App.–El Paso 2000, no pet.). Second, termination must be in the best interest of the child. T EX
. F AM
. C ODE ANN . § 16 1. 00 1( 2) ; Gree n , 2 5 S

. W

. 3 d a t2 1 9

- 2 0

. In deter mining the be st interest of the child, a number of factors have bee n considere d, including ( 1) the desires of the child; ( 2) the emotional and phy sical needs of the c hild now and in the future ; (3) the emotional and phy sical dange r t o the child now and in the future; (4) the pa renta l abilities of the individuals seeking custody ; (5) the pr og rams ava ilable to assist the se individuals; (6) the plans for the child by

these individuals; (7) the stability of t he home; (8) the acts or omissions of the pa rent that may indicate the e x isting pare nt-child relationship is not a prope r one; a nd (9) a ny excuse for the ac ts or omissions of the pa rent. H o l l e y v . A d a ms , 5 44 S.W. 2d

36 7, 37 1- 72 (T e x. 19 76 ). Th is list i s not ex haustive, but simply indicates c onsiderations that have been or could be pertinent. Id

. Additionally , both elements of Section 161.001 must be esta blished by

clea r and c onvincing evidenc e, and pr oof of one element doe s not a lleviate the petitioner’s burden of proving the other. T EX
. F AM
. C ODE ANN
. § 1 61 .0 01 ; Wiley , 543 S.W .2d at 351. Clear and convincingevidenc e mea ns “the mea sure or

deg ree of proof

that will produce in the mind of the t ri er o f fa ct a firm belief or conviction as to the truth o f t h e all eg ations sought to be e stablished.” T EX
. F AM
. C ODE ANN
. § 101.007 (Ve rnon 2002). The re is a strongpresumption that the best interest of the child i s serve d by prese rving the parent-child relationship. Wiley , 543 S.W .2d at 352. Thus, the burde n of proof is upon the person see king to de prive the pare nts of their par ental rig hts. He rre ra v . He rre ra , 409 S.W .2d 395, 396 (Tex. 1966). Ana lys is I n both it s Ja n u ar

y 3 0 an d M ay 9 o r d e r s , th e tr ia l c o urt f o u n d th a t K r is ti n a an d Patr ick eng ag ed in thr ee of the acts or omissions itemiz ed in Section 161.001(1). The court found that they knowing ly

place d or allowed the children to rema in in conditions and surroundings that endang ere d the phy sical and emotional well being of the c hildren, eng ag ed in conduc t or knowing ly place d the

c hi ldr e n w ithpe rs on s w ho e ng a g e d in c on du c t th a t e nd ang e re d th e ph y sic a l and e mot ion a l w e ll being of t he children, and failed to comply with the provisi ons of a c ourt order that established the17

actions nec essar

y to obta in the return of the children while the children had been in the temporar y manag ing c onservatorship of t he Department for not less than nine months. See T EX
. F AM
. C ODE ANN . § 161.001(1) (D), (E), (O). Kristina and Patric k complain of these finding s as well as the tria l court’s a ppointment of the Depa

rtment as mana g ing c onservator of their c hildren. Howe ver, w e ar e
un a ble to r e vie w the se c omp la int s. Sub c ha pte r E of

Cha pte r 2 63 of

the Te xas F a mil y

Cod e g ov e rn s f

ina l or de rs in

conser v atorship and termination procee dings in c ases involving children unde r the De partment’s

car e. In r eA.J

.K. , 116 S.W .3d 165, 169-70 (Tex. App.–Houston [14t h Dist.] 2003, no pet.). The Te xas F amil y

Cod e re qu ir e s an a

pp e lla nt se e kin gre vie w o f a

su bc ha pte r E fi na l or de r t o f

ile wi th the trial cour

t, no later than f

ifteen da y s after the final order is signe d, a st atement of points on which the appellant intends to appea l. Act of May 22, 2001, 77th L eg ., R.S., ch. 1090, § 9, 2001 Tex. Gen. L aws 23 95 , 2 39 7- 98 (c ur

re nt v e rs ion

a t T EX
. F AM
. C ODE ANN
. § 263.405(b) (Ve rnon Supp. 2007)). Secti o n2 6 3

. 4 0 5 w a s e n a c te d in 2 0 0 1 to r e d

u c e p o s tj u d g me n t d e la

y s an d s c r e e no u t f

r iv o lo us appea ls. See In r eR.J

.S. , 2 19 S.W. 3d

62 3, 62 5 (T e x. Ap p. –D a lla s 20 07 , pe t. de nie d) . A n a pp e llate court may not consider a

ny issue that was not spec ifically prese nted to the trial court in a timely filed statement of points. T EX
. F AM
. C ODE ANN . § 263.405(i) (V ernon Supp. 2007). Kristina and Patric k did not include in their statement of points or their motion for ne w trial complaints about the trial cour t’s deter mination that they

eng ag ed in Section 161 .001(1) a cts or omissions or the trial c ourt’s appointment of the D epar tment as p er m anent manag ing c onservator of the c hildren. Ac cording ly , we c annot consider t h es e co n t en t ions. See id. ; In r eR.J .S. , 219 S.W .3d at 625-26. Kristina and Patric k complain that the trial court erre d in ref using their reque st for a dditional finding s of fa ct and co n cl u sions of law. They do not elaborate on how it was e rror . Where a n
a pp e lla nt c omp la ins on

a pp e a l th a t th e tr ia l c ourt

re fu se d to make addit ion a l f ind ing s, bu t f

a ils to

a pp ri se the a

pp e llate c ourt of the sig nif ic anc e of su c h f ind ing s a nd ho w t he y re la te to s ome ult imate issue on appea l, the issue is waived. V ic ke ry v . Co mm ’n fo r L awy e r D isc ipl ine , 5 S.W .3d 241, 256

n. 9 ( Te x. Ap p. –H ou sto n [14 th D ist .] 19 99 , p e t. d e nie d) . H ow e ve r, be caus e we a re ins tr uc te d to strictly scrutinize te rmination proce eding s, we will consider the merits. See Wiley , 543 S.W .2d at 352.18

Patrick and K

ristina reque sted the trial cour t to make the additional find i n g o f fact that, at th e conc lusion of the J anuar y 22 hear ing, “ the Court did not find sufficient evide nce by clea r and convincingevidenc e that termination” of their parental rights was in the best interest of the children. They als o re q uested the tria l court to state the a dditional conclusion of law that, at the conclusion of the January

22 hear ing, “ the Court did n o t o rd er and decre e that ter mination” of their pa

renta l ri gh t s wa s i n t h e b es ti n t er es to f t h e c h i l dre n
. I nre s p o n s e, t h e t ri al co u rt fi l edi t s ad d i t i o n al fi n d i n gs of fact an d co n cl usions of law, which w e set out her e in their e ntirety : “At the conc lusion of the evidenc e on January

22, 2007, the Court, at the re quest of the Attorne y Ad L item for the c hildren, adjourne d the trial, and de fer red i t s fi n d ing a s to the best interest of the children, to a later date, April 27, 2007.” F urther, the trial court ha d found, in its findings of fac t f iled J une 11, 2007, that on J anuar y 22, 2007, “a tr ial for ter mination of pare ntal rig hts was hea rd” a nd the cour

t found that the issue of best interest would be de fer red until April 27, 2007. The tria l court has no duty to make additional finding s that are unnece ssary to its j udg ment. V

ic ke ry , 5 S.W .3d at 254. I t would be an

unnece ssary

duplication for the tr ial court to also include in its findings a statement that it did not fi nd su ff ic ie nt e vid e nc e that te rm inatio n w a s in the be st i nte re st o f t

he ch il dren or

inc lud e in i ts conclusions a state ment that it did not decr ee that termination was in the be st interest of the c hildren. We now consider w hether the evidence is leg ally sufficie nt to support the trial cour t’s finding that te rm inatio n is in the c hil dr e n’ s be st int e re st. Th e re c or d sh ow s that w he n th e c hil dr e n w e re in their pare nts’ car e, they

wer e found in a

n unsanitary

apar tment that did not have elec tricity or eve n a usable b ab y cr i b. The c hildren themselves w ere dirty . A.T.S. was deve lopmentally delay ed, malnourished, had e ight c avities, and wa s under the inf luence of coc aine. More than a

y ear befor e the ter

mination, the court orde red e ach of the par ents to pay

$200.00

eac h month in child support. The rec ord shows that neither pare nt pa id a ny child support during the pendenc y of this c ase. Nea rly a y ear afte r the children w ere taken a way , afte r what was desc ribed as a tra nsient lifesty le during which they did not alway s live toge ther, Patrick a nd Kristina moved int o a ho me the y

c on sid e r s ta

ble and se t up a bu dg e t to me e t th e ir

c ur re nt n e e ds . H ow e ve r, their work history

is spotty and both spoke of c hang ing jobs a g ain. Moreove r, they wer e not awa re of how much would be ne eded f

or the c hildren’s e x penses, a nd their budg et did not include expenses for the children. The trial court c ould have c oncluded that Patric k and Kr istina cann o t m eet the phy sical19

needs of the childre n, did not adequate ly plan for the children, a

nd cannot pr ovide a stable home. Although the family

service plan’s re quirements we re me ant to provide the pa rents with the edu cat ion a nd sk ill s th e y

ne e de d in

or de r t o b e g oo d p are nts , K ri sti na and Pa tr ic k b oth

fa ile d to

c omp ly wi th t he pla n in many re sp e c ts. Kr ist ina and Pa tr ic k did no t pa rt ic ipate in f

a c e to f a c e ho me
v is it s w it h th e c a s e w o rker , did not a tt e n d p ar e n ti n gc la s s e s s p e c if

ie d in th e p la n , d id n o t uti li ze ag encie s such as WI C an d M edica id to obtain community assistance for the w ell being of the ch i l dre n , a n d d i d

n o t p ar t i ci p at e i ncl as s es fo r i n t en s e c h i l d d ev el o p m en t , n u t ri t i o n , an d age appropr iate stimulation. Fifteen months af ter the c hildren we re r emoved f rom their home, Patrick

an d Kr i s t i n a s t i l l l ac k edp ar en t i n g s k i l l s
. T h ei r s u p er v i s ed v i s i t s wi t h t h e ch i l dre ni n v o l v edro u gh play and repr imands rathe r than nurturing

. They did not have beds, c lothing, or othe r items rea dy for the c hildren’s use. O t h er t h an rely ing on B altieria, w ho alre ady had a job wor

king until 2:00 a.m., they had no firm plans f

or childca

re
. T h er ef

o re , the trial cour

t could have c oncluded that Kr ist ina and Pa tr ic k d id n ot h a ve the ne c e ssa ry a bil iti e s to be pa

re nts

. Moreove r, there was no bond be tween K ristina and the c hildren. A.T.S. was af raid of Patr ick and M.D.S. did not remember Patrick. On the othe r hand, the children we re doing we ll in foster

c are . M .D .S. ’s fo ste r m oth e r w ante d to a do pt him . A .T .S. ha d im pr ov e d in many wa y s w hil e in foster c are . For

instance, he had bec ome ca lmer and le ss ag g ressive since he be g an living a way from his parents. Thus, the trial cour t could conclude that Kristina and Patric k wer e unable to meet the emotional needs of

the childre n. Th e e vid e nc e re latin g to t he pe rt ine nt Holley

fac tors, toget h er wi th the pare nts’ history of drug use and r elatively

short amount of time being drug fre e, is some evidenc e on w h i ch the trial

c ourt c ou ld h a ve ba se d a fi rm be lie f or c on vic tio n th a t te rm inatio n w ou ld b e in t he c hil dr e n’ s b e st interest. Thus, the e vidence is leg ally s u ff i cient to s upport the trial cour t’s deter mination that termination is in the best interest of the c hildren. See In r eJ. F.C
. , 96 S.W .3d at 266. We turn now to Patrick and Kr istina’s fac tual sufficie n cy ch al l enge. Patr ick and Kr istina prese nted evidenc e that they had a c lean, sa fe home for their children, jobs, and a monthly budg et based on c urre nt income and f inancial r esponsibiliti es. Howe ver, the Depa rtment pointed out that their l iving ar

r an g e me n ts mi g h t n o t b e s ta b le b e c a u s e , u n a b le to a f f o r d a p la c e o f th e ir o w n , the y would be shar ing a

rente d home with two other adults, on whom they must depend and ove r whom20

they had no contr ol. One of the ir roommates ha d previously b ee n i n v o l v ed with drug s. Furthe r, Pa tr ic k te sti fi e d th a t he int e nd e d to mov e his fa mil y to a dif fe re nt r e nt h ou se wh e n h e wa s f ina nc ia lly able. The Depa

rtment char acte rized their l iving arra ng ements as “tra

nsient situations” that did not comply w it h th e p la n ’ s r equire ment that they

establish appropr iate housing . Additionally , while ea ch of them had a

job, ne ither had a full time, pe rmane nt job with medical bene fits. Neither Patric k nor Kristina had ke pt a job for ve ry long, a nd their hours and rate of pay varie d. Fur ther, the rea son they

we re in a livi ng arr ang e me nt in whi c h the y sh are d a home wa s bec a us e the y c ou ld not a ff

or d a ho me of their own. N either Patric k nor Kristina was able to ide ntify costs associate d with raising children, and ther efor e those c osts were not included in the ir monthly budg et. Whil e they had clea rly made pr og re ss, a

re a so na ble fa c t f ind e r c ou ld h a ve se e n th is a s e vid e nc e of ins ta bil ity , r e c on cil in g thi s evidenc e in favor of its finding

. Simi larly , the fa ct that both pare nts co m p l et ed drug reha bilitation progra

ms and had be en drug fre e whe n tested is commendable . Howeve r, Patrick c ontinued to use drug s for more than ten months after the Depa

rtment took the children. Acc ording to his testimony at the fina l hear ing, he had bee n drug fre e for

less than five months. Althoug h they attended N A or AAmeeting s, they

m i s s edab o u ts ev en o f t h e w ee k l y m ee t i n gs b et we en t h e J an u ary h ea ri n g an d

t h e A p ri l h e ar i n g. Aga i n , t h e t ri al co u rt co u l d h av e r ec o n ci l edt h i s ev i d en ce i nfa v o r o f i t s fi n d i n g. Both p ar e n ts a d mi tt e d th a t th e y h a d an a b u s iv e r e lati o n s h ip b u t, b e tw e e n th e Ja nuary and April hea ring s, they

attended ma

rriag e counse ling twice . Whil e P at ri ck disputed Christian’s

c ha ra c te ri zat ion

of his vis its wi th h is c hil dr e n, he a dmi tte d that the y wr e stl e d a nd A. T. S. m ig ht h it his mot he r. I n li g ht o f t

he te sti mony

of pr e vio us vio le nc e a g a ins t K ri sti na and ang ry ou tbu rs ts ag ainst employ ees of

the Depa rtment, the trial cour

t could have c hosen no t t o believe Patr ick’s version of e vents or Kr istina when she t es t i fi ed that Patrick did not g et upset or r aise his voice a t ho me . T he tr ia l c ourt

c ou ld h a ve re c on c ile d th is e vid e nc e wi th its det erminatio n th a t a ho me provided by

Patrick and K

ristina would be emotionally dang erous to the c hildren. The De partment pre sented c onsiderable evidenc e that Patrick and Kristina lacke d pare ntal abilities, a stable home, a

nd the ability

to meet t he phy sical and e motional needs of the c hildren. The conflicting evidenc e that mig ht indicate otherwise i s not so signific ant t hat a reasona ble fa ct finder could not have f

ormed a firm belief

or convic tion that terminating K ristina an d P at ri ck’s parenta l21

rig hts would be in the children’s best interest. Thus, the evidence is fac tually sufficie nt to support th e t ri al co u rt’s finding

. See In r eC.H
. , 89 S.W .3d at 25. Acc ording ly , we ove rrule Patr ick and Kristina’s first issue.

H EA R ING O F A PRI L 27 I n their second issue, Patrick and K ristina asser

t that the trial court e rre d beca use it held two termination trials. They

argue that, while Sec tion 263.401(b)(3) of the fami l y

code pe rmits an extension of tim e to set a f inal hear ing, the hear ing of April 27 was a ctually a sec ond trial that is not contemplated by

the statute. They

contend t h at t h e Depa

rtment was imprope rly

g iven a se cond opportunity

to car ry its burden of proof

on the best intere st question, which it had failed to do at the first hea ring . I n their third issue, Patrick a nd Kristina contend the trial co u rt er re d in terminating the ir pa re nta l r ig hts be c a

us e the burd e n o f p ro of

wi th r e sp e c t to the Janu ary 30 or de r w a s v a g ue in its application and placed an unrea sonable burden of proof on them. They argue that the ter

mination trial was on January

22, at which the D epar

tment did not meet its burden of proof , and then the burd e n o f p ro of

sh if te d to the m to re tur

n to c ourt on Ap ri l 27 and sh ow ho w the y ha d c omp lie d w ith the Janu ary

30 or de r o n th e iss ue of

be st i nte re st. The Te x as F amily

Code anticipate s that suits in which the Depa rtment seeks termination of the par ent child re lationship shall be complete within one y ear afte r a te mporary

order app o i n t ing th e D e p artm e n t a s te mp o r ar y ma n a g in g c o n s e r

vator. See T EX
. F AM
. C ODE ANN . § 263.401(a) (Ve rnon Supp. 2007). Section 263.401(b) a uthorizes the trial court to re tain the ca se on its docket for a n additional period not to exc ee d 1 8 0 day s after that if the cour

t finds that ext raor dinary circ umstances ne cessitate the child’s remaining in the tempora ry manag ing c onservatorship of the Depa rtment and that c ontinuing the a ppointment of the Depa rtment as tempora

ry manag ing

conser vator is in the best intere st of the childre n. Act of Ma y 2 9 , 2 0 0 5 , 79th L eg ., R.S., C h. 268, § 1 .4 0, 20 05 Te x. Ge n. L aws 62 1, 63 6 ( c ur re nt v e rs ion

a t T EX
. F AM
. C ODE ANN . § 263.401(b) (Ve rnon Supp. 2007)). On Janu ary 18 , 200 7, Pa tr ic k a nd Kr ist ina fi le d a mot ion fo r e xten sio n o f t ime purs ua nt t o Section 263.401(b). The y prese nted evidenc e on their m otion at the January 22 hear ing. T he trial court c arr ied the motion while hear ing the Depa rtment’s evide nce. A t the end of t hat hearing , the22

trial court made finding s reg ardingthe ac ts and omissions i temized in S ection 161.001(1) and g ra nte d th e re qu e ste d e xten sio n. Thus , Patr ic k a nd Kr ist ina we re g ive n a dd iti on a l ti me to b e c ome fi t par e nts

. Th e De pa

rtme nt did no t re qu e st ad dit ion a l time and it wa s not g ive n ad dit ion a l time to pr o v e th a t te r

mi n a ti o n is in th e c h il dr e n ’ s b e s t in te r e s t. Patr ic k an d K r is ti n a mi s c o n s tr

u e the tria l

c ourt ’s a c tio ns
. Under the statutory

scheme , once the Depa rtment i s ap pointed temporar y manag ing

c on se rv a tor , th e pa

re nts are re qu ir e d to c omp le te sp e c if ie d a c ts a nd r e f r a i n f r o m c e rt a in s pe c if

ie d a c ts befor e they are deeme d fit to be pare nts. Kristina and Patrick reque sted an extension, and the trial court g ave the m an extension pursuant to Section 263.401(b). See id . At the April 27 hea ring , the burden w as st ill on the Department t o prove that termination was in the children’s best interest. See I n r e D. M. C. , 168 S.W .3d 319, 322 (Tex. App.–Texarkana 2005, no pet.) (Court disting uished betwee n the state’s e videntiary burden a n d m o t h er ’s actions, as proven by the state, holding that mother fa iled to demonstrate that she m et her burden as a par ent, to provide the r equire d protec tion and nurture the child.). One acc eptable me thod of proving its case i s t o p l ace the par ents on the wi tne ss s tand

and a sk the m qu e sti on s re la te d to the ir a bil iti e s to pa

re nt and the ir re so ur c e s, a nd

to

re ve a l th e ir

sh or tc omi ng s and

la c k o f r e so ur c e s. Th is i s what th e De pa rtme nt d id. We o ve rr

ule Kr ist ina and Pa tr ic k’ s se c on d a

nd thi rd iss ue s.

J ANUARY 30 O R D ER I n th e ir fo ur th i ssu e , K

ri sti na and Pa tr ic k c on te nd that th e tr ia l c ourt e rr e d in te rm inatin g the ir pare nta l r ig h ts b e c a

u s e th e o r d e r

o f Ja n u ar y 3 0 , 2 0 0 7 d id

n o t c o mp ly

w it h th e r e qu ir e me n ts of Section 263.401(b). The y argue that the J anuar y 30 order is defec tive and not suffic ient to ext end the ca se because it does not expressly identify the “e x traordina

ry circ umstances” that require d the children to re main in the temporar y manag ing c onservatorship of the De partment. We disag ree
. Se c tio n 2 63 .4 01 (b ) a

uth or ize s th e tr ia l court

to r e nd e r a

n e xten sio n o rd e r i n w hic h it schedule s the new dismissal date, makes further temporar y order s for the sa fety

and we lfare of the child, and sets a f

inal hear ing before the dismissal date. Act of Ma y 29, 2005, 79th L eg ., R.S., C h. 268, § 1.40, 2005 Tex. Gen. L aws 621, 636 (ame nded 2007). The statute does not re quire the c ourt to expl ain in the orde r what the extraordinary circ umstances a

re that ne cessitate the extension. The23

order need not e ven be in wr iting. See In r eJ. L. C. , 194 S.W. 3d 66 7, 67 2 (T e x. Ap p. –F or t Wor th 2006, no pet.). F urther, a

party who requests the trial cour t to reset the tria l date beyond the orig inal one y ear deadline h as ag ree d to an extension under Section 263.401(b). Id . at 673. Moreove r, a party who re quests relief

cannot c omplain on appea l if that relief is gr anted. Id . We ov e rr ule Kristina and Patric k’s fourth issue.

C O N STITU TIO N A LITY O F S E CT I ON 26 3. 40 5( i) I n their fifth issue, Kr istina and Patrick asse rt that Texas Family Code Section 263.405(i), in con ju n c ti o n w it

h s u b s e c ti o n ( b ) , is u n c o n s ti tuti o n a l in it s a p p li c a ti o n
. T h e y c o n te n d th at the statutory restric tion ag ainst appellate revie w of any issue not specifica lly

prese nted to the trial cour t in a timely

statement of points violates their Four teenth Amendme nt due proc ess rig hts and their due

course of law r ights unde r the Te x as C onstitut ion. As an ex ample, they complain that the fifte en day deadline f or filing the statement of points require s them to addre ss finding s of fact and c onclusions of l awth a t h a v e n o t y e t b e e nf il e d

. T h e y

f u rth e r a s s e rt t h a t r e s tr ic ti n g “ s u f

f ic ie n c y o f e v id ence ” points to t h o s e that are “ sufficie ntly specific ” unfa irly

impedes them, ar g uing that if they cannot complain of the sufficie ncy of the evidenc e, their pa renta l rig hts can be terminated w ithout judi cial revie w. We must avoid constitutional decisions unt il the i ssues are prese nted with clar ity , prec ision, and ce rtainty

. See Re

sc ue Army v

. M un. C ourt , 331 U.S. 549, 576, 67 S. C t. 1409, 1423, 91 L . Ed. 1666 (1947). Thus, we cannot de cide a bstract, hy

pothetical, or conting ent questions. The subjec t matter jurisdiction of cour ts rest s , i n p art, on the r ipeness of the issues. Patterson v. Plann ed Parenthood of Hou ston an d Se. Tex., Inc. , 971 S.W .2d 439, 442 (Tex. 1998). R ipeness is one of

s e v e r a l c a te g o r ie s o f ju s ti c ia b il it y
. See Pe rry

v . D e l Rio , 66 S.W .3d 239, 249 (Tex. 2001). Justi c ia bil ity re qu ir e s a

c on c re te inj ur

y , a re qu ir e me nt b a se d o n th e jud ici al pro hib iti on a g a ins t issuing advisory

opinions. See Patterson , 971 S.W .2d at 442-43. As explained above, the family code forbids an appellate court from considering any issue that was not spec ifically

prese nted to the t rial court in a timely filed statement of

points. See T EX
. F AM
. C ODE ANN . § 263.405(i). Kr istina and P atrick tim ely filed their state ment of points for appe al attacking , among other thing s, the sufficie ncy of the e vidence to support the trial court’ s finding that24

termination is in the children’s best interest. Be cause they identified the spec ific trial cour t finding they intended to attac k on appea l, their statement of points is sufficiently specific as re quired by Section 263.405(i). See In r eS.K. A. , 2 36 S.W. 3d 87 5, 89 9- 90 0 ( Te x. Ap p. –T e xar ka na 20 07 , p e t. denied) . Acc ording ly , t h ei r ar g ument that the statute’s re quirement that suff iciency issues be sufficie ntly specific rende rs t he st atute unconstit utional is a hy pothetical one in this ca se. We ca nnot decla re a statute invalid based on a hy pothetical possibility

that the law may

be unre asonable

. See United Stat

es v. Coastal Ref. & Mktg., Inc. , 911 F .2 d 103 6, 10 44 (5 th C ir . 1 99 0) . L ike wi se , th e ir g ener al complaint that the statute’s r estrictions ag ainst appellate revie w of issues not included in the statement of points violates due pr ocess f ails beca use it is not def

inite and conc rete

. See In re J.J. , No . 0 2- 06 -3 33 -C V, 20 08 Te x. Ap p. L EX I S 17 14 , at * 1 ( Te x. Ap p. –F or t Wor th M ar. 6, 20 08 , p e t. denied)

. We turn now to their argument that Section 263.405(i) is unconstitutional because it requires them to addre ss findings of fac t and conc lusions of law in the statement of points at a time when no findi n g s o r c o n c lu s io n s h a d b e e n f il e d

. I n c o n s tr

u in g s tatute s , w e a s c e rta in an d g iv e e f f e c t to the leg islature’s intent as e x presse d by the lang uag e o f t h e statute. City of Rockwall v. Hugh es , 246 S.W .3d 621, 625 (Tex. 2008). We construe the statute’s words acc ording to their plain and c ommon meaning , unless a contra

ry intention is appar ent from the c ontext

. Id . at 6 25 -2 6. Ho we ve r, we mus t not construe statutes in a way that would lead to an a

bsurd re sult. Ut

ts v . Sho rt , 81 S.W .3d 822, 832 (Tex. 2002). The fa mily code dictates that the statement of points for appea l is due fiftee n day s after the fi na l or de r o f te rm inatio n is sig ne d. Ho we ve r, purs ua nt to the ru le s of c ivi l pr oc e dure , th e pa re nts had until five day s after

their statement of

points for appe al was due to file a re quest for f indings of fac t and conc lusions of law. See T EX
. R. C IV
. P. 296. Once that r equest wa s filed, the court had twenty day s to file i ts finding s of fact and conclusions of law. See T EX
. R. A PP
. P. 29 7. Th e pa re nts ’ reque st f or additional finding s of fac t a nd conclusions of lawwas due ten day s after the cour t filed its original f

indings a nd conclusions. See T EX
. R. C IV
. P. 298. There fore , a re quest for a dditional finding s and conclusions could easily be timely under the rules of civil pr ocedur e althoug h filed af ter the date the pa

re nts ’ s ta te me nt of po int s wa s du e
. Mo re tha n lik e ly , a pp lic a tio n of the se ru le s w ill result in finding s and conclusions filed after the due date for the statement of points. To apply the25

restric t i v e l an guag e in Section 263.405(i) in this instance would mea n that the leg islature did not int e nd fo r p are nts to a

pp e a l any a lle g e d tr ia l c ourt

e rr or oc c ur ri nga fter th e date the y

fi le d th e ir statement of points for a

ppeal. This construc tion of t he st atute leads to an absurd result. See In r e D. W. , 249 S.W .3d 625, 643 (Tex. App.–For t Worth 2008, pet. denied) (In the context of discussing how Section 263.405(i) is void as a violation of the separ ation of power s provision o f t h e Tex as Constit ution, the c ourt stated that Section 263.405(b) cre ates a duplicative proc edura l hurdle over and above the long established proc edura l rules for pr eser vation of er

ror.) . Be cause interpre ting Section 263.405(i) to mean that Kristi na and Patr ick ca nnot complain of alleg ed er rors involving fi nd ing s of fa c t and c on c lus ion s of la w fil e d or omi tte d af te r S e c tio n 2 63 .4 05 (b )’ s d e a dli ne le a ds to an absur d result, we c onclude that Section 263.405(i) does not a pply to alleg ed er

rors oc curr ing a fter th e f i f t e e n d ay d e a d l i n e
. T h e r e f o r e , S e c t i o n 2 6 3

. 4 0 5 ( i ) i s n o t u n c o n s t i tu t i o n a l o n t h i s b a s i s
. We

overr ule Kristina and Patr ick’s fifth issue.

C ONCL US I ON The e vidence is leg ally

and fa ctually

sufficie nt to support the trial court’ s o rd er of termination of Kr istina’s and Patrick’ s pare ntal rig hts. The trial court did not hold two termination trials or improper ly

shift the burden of

proof. The J an uary

30, 2007 order

is not defec tive, and Pa tr ic k a nd Kr ist ina did no t sh owthat T e xas F a mil y Cod e Se c tio n 2 63 .4 05 (i ) i s unc on sti tut ion a l. We af fi rm the tr ia l c ourt ’s or de r o f t e rm inatio n o f p are nta l r ig hts

.



### S AM GRI FF I T H J ustice

Opinion delivere d J uly

31, 2008. Pane l co ns i s t ed of

Wor t hen , C. J. , Gri

f f i t h, J. , an d Hoyl e, J.

(PUBL I SH)