Th e bio log ic a l f a the r of M. M. G. is Mic ha e l G a me z, G a me z’s hu sb and . H is p are nta l r ig hts 1 wer e also ter

minated in the district court’s or der. H e has not a ppeale d the termination orde r. 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 9 -00 190 -CV

P aul ine G am e z , A ppe lla nt

v. Texas Depart m ent of Fam ily and P rote ctive Service s , Appellee

F ROM THE DISTRICT CO URT OF TOM GREEN COUNTY , 119TH JUDICIAL DISTRICT NO. B -07 -01 93- CP S , HO NORAB LE JAY K. WEATH ERB Y , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
I n this acce lerated appe al, Pauline Game z appeals the district cour t’s order terminating her pa

rental ri gh t s to her biolog ical child, M.M.G., following a trial to the c ourt. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2009). I n nine poi nts of err or, Gamez challeng es the service of citation upon her , contends the evidenc e wa s leg ally and fa ctually

insufficient to support the district court’s f

ive pre dicate g rounds for te rmination of her pare ntal rig hts, a nd urg es the district court e rre d by admitting a f amily service plan without proper a uthentication. For

the re asons that fo llo w, we a ff

ir m th e dis tr ic t c ourt ’s or de r t e rm inatin g he r p are nta l r ig hts
. 1The termination order does not addre ss Gamez’s other child. The recor d shows that her 2 other c hild is l iving with Gamez’s mother in California. We r e fer to Mic ha e l G a me z an d h is p are nts , A ng e lit a and Carl os Ga

me z, b y the ir fi rs t 3 names. 2 BACK GR OUND Fr om March to June 2007, the Texas Depa rtment of Family and Protec tive Service s investigated alleg ations of domestic violence betwee n Pauline and Michae l G amez and neg lectful supervision of M.M.G. and a nother c hild. Th e De pa

rtme nt c los e d it s in ve sti g a tio n in June du e to 2 the family moving to California. The inve stigation was g iven a disposition of “Reason to B elieve for Phy sical A b u se” a

nd “Ne g lectful Supervision” w ith the Depar tment verify

ing a history of domestic violence to which M.M.G. was e x posed.

The De partment re newe d its investig ation afte r it r ece ived a repor t on J uly 20, 2007, that Gamez had a

rrived una nnounced at the home of Ang elita and Car los Gamez, M.M.G.’s pater nal g randpa rents, in San A ng elo. A ca seworke r for the Depa rtment visited with Gamez, Ang elita, 3 Carlos, and M.M.G. on J uly 24, 2007, at t heir home. Ang elita t old the case worke r that she be lieved that Michae l was li ving in a hotel in Dallas and she expressed saf ety conce rns for G amez and M.M.G. if they

reunited w ith Michael base d upon his past violent behavior. She state d that Gamez and Micha el had moved “ multipl e times” a nd eng ag ed in phy sical fig hts over t h e p as t t wo y ear s and that her

son had “be aten” Gamez up in the past. Afte r th e De p ar t m en t was notified on Aug ust 8, 2007, that Gamez was at the bus station and ha d purcha sed b u s t i ckets for herse lf and M.M.G. to return to Da llas to be with M i ch ael, the Depar tment filed its origina l petition forThe Depa rtment persona lly serve d Michae l in October 2007 when he was in ja il. Michael 4 also attende d a hea

ring in this case in Octobe r 2007. 3 protec tion of a child i n an eme rg ency , for c onservatorship, and for te rmination in suit affec ting the pare nt-child relationship wit h a supporting aff idavit from the investig ating case worke r. The district cour

t gr anted the e merg ency

order to remove M.M.G. a

nd n am ed the Depa rtment the tempora

ry sole manag ing c onservator of M.M.G. The case worke r re moved M.M.G. from Ga mez at the bus station and asked Gamez to provide a n addre ss or contac t information as soon as she ha d one in D allas. Gamez went to D allas, but she fa iled to provide conta ct information to the
case worke r. The D epar

tment placed M.M.G. with Ang elita and Car los and, shortly there afte r, obtained an or der f

or substituted service and serve d Gamez by publication in Aug ust 2007 in Tom Gre en County . The De partment obtaine d an additional orde r for substitut ed service a

nd serve d Gamez by

publication in Dallas County in November

2007. The De partment did not persona lly serve Gamez, and she did not attend any hear ing in this case. The district cour t appointed sepa

rate attorney s ad litem to repr es en t Michael a nd 4 Gamez in Fe bruar

y 2008. Gamez’s attorney filed an answe r in Marc h 2008, enter ing a g ener al denial
o f t h e De p ar tment’s alleg ations. Her attorney appea red at all hear ings a fter be ing a ppointed, including the trial on the merits in Fe bruar y 2009. At the trial, the attorney announce d “re ady .” Ang elita Game z and L aura Owens, a ca seworke r for

the Depa rtment, testified at the trial, and the district c ourt took judicial notice of the content of i ts file on t he ca se. Ang elita testified that she and he r husband planne d to adopt M.M.G. if the par ents’ rights were terminated and that she knew of no other re l at i v es wh o we re inter ested in ca ring for M.M.G. She testified c oncer ning4

M.M.G.’s ca

re and well-be ing both before and af ter M.M.G.’s r emoval fr om her pa rents and to the pare nts’ history of domestic violence. She testified that her home and tele phone number had stay ed the same a

nd that her son had called eight or nine t imes during the pendency of t he ca se to che ck on M.M.G., but that he had not spoken to M.M.G. or ha d any other contac t w ith M.M.G. or with her. She te sti fi e d th a t sh e sp ok e wi th G a me z on c e duri ngthe pe nd e nc y of the c a se and

that G a me z tol d her that she was looking for Michael and staying in a homeless shelter. Ex cept f or an a ddress a

nd te le ph on e numbe r in L ub bo c k tha t Mic ha e l ga ve to he r in May 20 08 , Ang e lit a te sti fi e d th a t sh e did not have a

n addre ss or contac t information for he r son or Ga mez. Owens, w ho was a ssigne d to the case beg inning in May 2008, testified conc erning the Depa rtment’s re commendation that the parents’ rights be terminated so that Ang elita and Car los could adopt M.M.G. Owe ns testified to the Depa rtment’s ef

fort s t o l o cate the par ents, including obtaining the addre ss for them in Lubbock in May or ea rly J une 2008. She testified that she spoke wi th M ic ha e l by

te le ph on e on c e in Jul y

and on c e in Au g us t 20 08 bu t th a t sh e did no t sp e a k w ith Gamez at any

time. When she spoke to Michae l, he told her that he and Gamez were living in an apar tment in L ubbock and that Gamez was wor king at a B ig L ots store. Ow en s arr ang ed for a courte sy case worke r in Lubbock. The case work e r ma il e d G amez and Micha el information of se rvice providers in the Lubbock are a and attempted to c ontact them at their apar tment, but the case worke r’s eff orts wer e unsucc essful. The c asew orker discovere d in October

2008 that Gamez and Micha el had
mov e d f ro m th e a pa rtme nt wit

ho ut le a vin g a fo rw ard ing a dd re ss. F ro m O c tob e r 2 00 8 f or wa rd , th e ir wher eabouts have re mained unknown.5 The co u rt file included the Depa rtment’s family

service plan alleg edly

signe d by Michae l and Game z in October 2007. The pla n set forth c ourt-orde re d t as k s an d service s for the pa re nts to u nd e rtake and co mpl e te . T he fi le a lso inc lud e d th e pe ri od ic pe rm ane nc y and pr og re ss repor ts filed by the Depa rtment. The De partment’s r eports show that Gamez and Micha el submitted to a random drug test, but that they did not otherwise comply with the Depa

rtment’s family

service plan or have any

contac t with M.M.G. after August 2007. At the conc lusion of the trial, the district court found in the De partment’s f avor a nd order ed the pa

rents’ r ights ter

minated. Game z filed a motion for new tria l, statement of points on ap p ea l , an d n o t i ce o f ap p ea l
. T h e di s t ri ct co u rt t h er ea ft er co n d u ct ed a s ec t i o n2 6 3
. 4 0 5 (d ) h ea ri n g. See Tex. F am. Code Ann. § 263.405(d) (West 2008)
. The district c ourt denied G amez’s motion for new tria l, but found her indig ent, her appea l not frivolous, and appointed he r new co u n s el for her appea l. This appeal f

ollowed.
AN AL YSI S To terminate pa

renta l rig hts, the Depa

rtment has t h e burden to prove one of the pr e dic a te g ro un ds in secti on 16 1. 00 1( 1) of the fa mil y c od e a nd that te rm inatio n w a s in

the be st interest of the child. See Te x. F a m. Cod e Ann. § 1 61 .0 01 (1 ), (2 ); In re A.V. , 113 S.W .3d 355, 362 (Tex. 2003) . The district cour t found five pr edicate g rounds supporting termination. See Te x. F a m. C o d e A n n . § 1 6 1
. 0 0 1 (1 ) ( D) , (E ), (F ), (N ), (O ). I n h er p o i n t s o f erro r, Ga m ez d o es n o tch al l en ge the district court’s f

inding that ter

mination was in M.M.G.’s best in tere st, but she urg es that the evidenc e wa s leg ally

and fa ctually

insufficient to support ea ch of the five predicate g rounds found by the district court. Se e id
. Gamez also contends that the Depa rtment’s servi ce o f c i t at ion6

was de fec tive and that the district cour t erre d in ad m i t t i ng the family service plan that she alleg edly signe d.
Stan dard of Revie w

The st an d ar d

o f p ro o f t o t er m i n at e p ar en t al ri gh t s i s t h e c l ea r a n d convincing standard. Te x. F a m. Cod e Ann. § 1 61 .2 06 (a ) ( Wes t 20 08 ); se e In re J .F .C. , 96 S.W .3d 256, 263 (Tex. 2002) (due pr ocess r equire s clea r and c onvincing standard of proof in pa

rent termination ca ses). The clea r and convinc ing sta

ndard is “‘that measure or degr ee of proof which will produce in the m ind of the trier of fac t a firm belief

or conviction as t o the t ruth of t he allegations soug ht to be esta blished.’” In re C.H., 8 9 S
. W
. 3 d

1 7 , 2 3 (T ex . 2 0 0 2 ) ( qu o t i n g S ta tev . A d

din gton , 5 8 8 S
. W
. 2d 569, 570 (Tex. 1979)). I nre v i ew i n g t h e l ega l s u ff i ci en cy o f th e e v i d en ce t o s u

p p o rt a t er m i n at i o nfi n d i n g, “a c ourt should look at all the evidenc e in the lig ht most favorable to the finding to determine whether a reasonable trier of fac t could have f ormed a firm belief

or convic tion that its finding was true.” In re J

.F .C. , 96 S.W .3d at 266. I n revie wing the fa ctual suff iciency of the e vidence to support
a te rm inatio n fi nd in g , a

c ourt “ mus t g ive du e c on sid e ratio n to e vid e nc e tha t th e fa c tf ind e r c ou ld
rea sonably have found to be clear and convincing .” Id
. (c i t i n g In re C.H. , 89 S.W. 3d a t 25 ); se e als o In re H.R.M. , 20 9 S.W. 3d 10 5, 10 8 (T e x. 20 06 ) (f a c tua l su ff

ic ie nc y sta nd ard of re vie w i n a

pp e a ls from ter mination orders discussed)
. We reviewa trial c ourt’s dec ision to ad m i t o r ex clude evidence for a n abuse of discretion. See I

n re J.P.B

. , 180 S.W .3d 5 7 0, 575 (Tex. 2005). A trial cour t abuses its discretionTe xas R ule of Civ il Pr oc e dure 10 9 p ro vid e s in re le va nt p art : 5 When a par

ty to a suit . . . shall make oath that the r esidenc e of any party defe ndant is unknown to aff

iant, . . . or that such de fenda nt is a transient per son, and that af ter du e dil ig e nc e su c h p art

y and the a ff iant h a ve be e n una

ble to loc a te the wh e re a

bo uts of such de fenda

nt, . . . the cler

k shall issue citation for such def endant f or ser vice by publication. I n such ca ses it shall be the dut y of t he court trying the case to inquire into the sufficienc y

of the diligenc e exercised in attempting to asc erta in the residenc e or whe rea bouts of the def

endant . . . be fore g ranting any judgme nt on such ser vice. Tex. R. C iv. P. 109. 7 when it ac ts without reg ard to any g uiding r ules or princ iples. Do wne r v . A qu am ar ineOp e ra tor s, Inc ., 701 S.W .2d 238, 241-42 (Te x . 1985).
Service of Citation

I n her f irst, second, a

nd third points of error , Gamez c h al l en ges the De partment’s
se rv ice of cit ati on . Sh e c on te nd s th a t: ( i) the e vid e nc e wa s le g a lly and fa c tua lly ins uf fi c ie nt t o support the di strict court’s finding that the D epar tment exercised suff

icient dilige nce in attempting to asce rtain Gamez’s where abouts pursuant to Texas Rule of Civil P ro ce d u re 1 09, (ii) the district court e rre d by

finding that Gamez was pr operly serve d with citation and that t he dis trict court ha d jurisdiction over her

to terminate he r par ental rig hts, and (iii) the district court erred by g ranting jud g me nt a g a ins t he r w ith ou t pr op e r s e rv ic e of c itatio n a s requ ir ed un de r T e xas R ule of Civ il Procedur e 124. See Tex. R. Civ. P. 109 (proc edure for c itation by publication), 12 4 (

jud g me nt s ha ll 5
no t be re nd e re d a g a ins t a de fe nd ant un le ss the re ha s be e n s e rv ic e , a c c e pta nc e or wa ive r o f p ro c e ss,
or an a pp e ara nc e by the de fe nd ant) ; see also Tex. Fam. Code Ann. § 161.107( b) (West 2008) (w hen pare nt has not been pe rsonally serve d in suit seeking to ter minate, “de partment must make a8

diligent e ffor

t to locate that par ent”) . Gamez’s primar y complaint is th at the Depa rtment had he r apar tment a ddress in L

ubbock from J une to October 2008 but did not attempt to personally serve her at that time. The De partment obtained two court orde rs authorizing substituted servic e and se rved Ga me z wi th c itatio n b y

pu bli c a tio n in To m Gr e e n County in Au g us t 20 07 and in D a lla s Co un ty

in November

2007. See Te x. R. C iv. P. 1 09 ; see also T e x. F a m. Co d e A n n . § 1 0 2
. 010 (West 2008) (a uth or izin g c itatio n b y

pu bli c a tio n in

su its a ff e c tin gpa re nt -child r e la tio ns hip s a s in oth e r c ivi l
case s). The D epar

tment supported its m o t i on for substituted service by an af fidavit dated Aug ust 9, 2007, from the De partment’s c asew orker at the time. The c asew orker aver red:
At the time Iremove d the child from he r possession, Ms. Gamez indicated to me that she wa s g etting on the bus and would be r eturning t o h er h usband Michae l Gamez today , but she could not or would not g ive any locating information for he rself or her hu sb and wh e n s he arr ive d in Da lla s. Ire qu e ste d th a t sh e c a ll a nd pr ov ide me wi th locating information when she does g et to Dallas. She stated that onc e she a rrived and chec ked into a hotel in D allas, she would call me with the locate [si c] and contac t information. However, at the t ime of t he writing of this Affidavit, the Depa rtment h a s h a d n o f u rth e r c o n ta c t w it

h Pa u li n e G a me z. Th e De pa rtme nt b e lie ve s th a t Pa

uli ne Ga me z may be liv in g s om e wh e re in D a lla s, T ex as , o r i s a transient at this ti me, and he r exact whe rea bouts are unknow n. The Depa rtment will continue it s eff orts to locate Pauline Ga

mez for per sonal servic e of citation, but until s he is locate d, substitut ed citation by publication throug h posting will be require d.
I n the Depa

rtment’s re port filed in J anuar y 2008, the Depa

rtment stated that Gamez’s loc ation
re ma ine d unk

no wn de sp ite its e ff

or ts t o lo c a te he r. Th e De pa rtme nt s ta te d th a t it

ha d atte mpt e d to contac t Gamez’s mother in California but t h er e wa s never an answ er a

nd that Michae l had not provided a

ny information re levant to locate Gamez.9 T h e d is tric t c o u

r t a p p o inte d an attorne y

ad litem for Ga

mez in Februa

ry 2008 pursuant to section 107.013 of the f amily code. See T ex . Fam. Code Ann. § 107.013 (West Supp. 2009) (district court sha ll appoint attorney ad li tem for parents served with citation by publication). The
a tto rn e y a d li te m f ile d a n a ns we r i n M arc h 2 00 8, g e ne ra lly de nyingthe De pa

rtme nt’ s a lle g a tio ns in the petition for ter

mination. In the Depa

rtment’s re ports filed with the district court a fter the attorney ad litem filed the a

nswer, the Depa

rtment states that all par

ties have be en ser

ved. The De partment c ontends that Game z waived any complaint that service was defe ctive whe n her attorney ad litem filed an a

nswer. See Tex. R. Civ. P. 121. Rule 121 provides that “ [a]n ans we r s ha ll c on sti tut e an a pp e ara nc e of the de fe nd ant s o a s to dis pe ns e wi th t he ne c e ssi ty for the issuanc e or se rvice upon him.” See id. ; I n r e B.P. , No. 04-07-00695- CV, 2008 Tex. App. L EXI S 2295, at *2-5 (Te x . App.—San Antonio April 2, 2008, no pet.) ( mem. op.) (attorney ad litem appointed by

the cour t to repre sent appe llant, “whose w here abouts have alway s been unk n o wn ,” waived a ny complaint that require ments of Texas R u l e of Civil Procedure 109 wer e not satisfied when the attorney

filed an answe r g ener ally denying the alleg ations in the petition for termination;
a pp e lla nt se rv e d by su

bs tit ute d s e rv ic e by

po sti ng ); Ph ill ips v . D all

as Cou nty Chi ld Pro te c tiv e Se rv

s. Un it , 197 S.W .3d 862, 865 (Tex. App.—Dallas 2006, pe t. denied) ( attorney ad litem appointed by
c ourt to r e pr e se nt a

pp e lla nt w a ive d a

ny c omp la int s a

bo ut d e fe c tiv e se r

v i c e b y f ili ngans we r g e ne ra lly denying the alleg ations in the petition for termination).

Although it is not clea

r fr om the rec ord the e x tent of conta ct betwe en Gamez and her appointed attorney , Gamez’s attorney attended eac h hear ing afte r her appointment and prior to theThe re cord shows that Gamez had conta ct with her attorney and knowledge of the 6 Depa rtment’s petition to terminate her pare ntal rig hts. Ac co rdi ng to the repor t filed by the Depa rtment with the district court in Novembe r 2008, the De partment wa s advised by her attorney that Gamez planned to sig n an af fidavit of re linquishm ent. The rec ord also shows that Gamez had contac t with the Depar

tment prior to and on the da y M.M.G. was remove d from her and whe n she sig ne d th e De pa

rtme nt’ s f

a mil y se rv ic e pla

n a nd su bmi tte d to a

dr ugte st. At

th e ti me of

tr ia l, howeve r, Gamez’s wher eabouts wer e unknown, and her attorney filed an a ffidavit of due diligenc e wi th t he dis tr ic t c ourt

in A pr il 2 00 9. She a ve rr e d th a t a me mbe r of he r sta ff ha d atte mpt e d to loc a te Gamez by telephone se arc hes without succe ss, other ef forts we re u

n s u c c e s sful, and she ha d “no other means to find out wher e she is.” The recor d shows that the Department m ailed a copy of i ts report in August 2008 to Gamez 7 at the L ubbock addr ess and a

copy to her attorney
.

10 tr ia l w ith ou t r a is ingc omp la int a s to se rv ic e on

he r c lie nt. At trial, she announc ed “r eady .” The

6 attorney first raise d any

complaint about servic e in Game z’s moti on for ne w trial. On this rec ord,
we c on cl u d e t h at Gamez waive d her c omplaints about service
. See I n Re B.P. , 2008 Tex. App. L EX I S 22 95 , at *2 -5 ; Phillips , 197 S.W .3d at 865.

Moreove r, eve n if Game z preserve d her c omplaints ab o u t service , the Depa rtment prese nted an a ffidavit in ac corda nce w ith rule 109 o f t h e rules of c ivil procedure with its m otions for substituted service that was not controve rted by Gamez. See Tex. R
. Civ. P . 109. The
case worke r assig ned to the case aver red to the Depa

rtment’s ef

forts to locate Gamez bef

ore se eking the or de rs fo r su

bs tit ute d se rv ic e . At tr ia l, Ow e ns te sti fi e d c on c e rn ingthe De pa rtme nt’ s e ff

or ts t o locate Gamez. Ang elita also testified that the only contac t inf ormation her son provided to her was in M ay 20 08 and tha t Ga me z did no t pr ov ide he r any c on ta c t inf or ma tio n. As to the pe ri od

of tim e in 2008 that the Depa

rtment had an addr ess for G amez in Lubbock, Gamez’s attorney had alr eady fi le d a n a ns we r g e ne ra lly

de nyingthe De pa

rtme nt’ s a lle g a tio ns . See T e x. R. Ci v . P. 1 2 1
. We 7
overr ule Game z’s first, second, and third points of e rror .11

Grounds for Term inati on

I nh er fo u rt h , fi ft h , s i x t h , s ev en t h , an d n i n t h p o i n t s o f e rr o r, Ga m ez d o es not chall en ge the district cou rt ’s fi n d i n g that termination was in the be st interest of M.M.G.; she c halleng es the fac tual and leg al suffic iency of the e v i d en ce to support the f ive pre dicate g rounds found by the district cou rt u n d er section 161.001(1) to support termination. See Tex. Fam. Code Ann. § 1 61 .0 01 (1 )( D) , ( E) , ( F ), (N ), (O ); In re J .F .C. , 96 S.W .3d at 266. I n its written order terminating Gamez’s parental rights, t he dis trict court found by clea r and c onvincing evidenc e:

• Pauline Surita Gamez knowing ly place d or knowing ly

allowed the c hild, M.M.G., to remain in conditions or surrounding s which enda ng ere d the phy sical or e motional well-being of the c hild, M.M.G., within t he mea ning of § 161.001(1) (D), T exas Family Code.

• Pauline Surita Gamez eng ag ed in conduc t or knowing ly place d the child, M.M.G., with persons w h o engag ed in conduc t which enda ng ere d the phy sical or e motional well-being of the c hild, M.M.G., within t he mea ning of § 161.001(1) (E), Te x as F amily Code.

• Pauli n e S urita Gamez failed to support M.M.G. in acc ordanc e with the pare nt’s ability

during a period of one y ear ending within six months of the date of the filing of the pe tition, wit hin the meaningof § 161. 0 0 1(1)( F) , Texas Family

Code.

• Pauline Surita Gamez construc tively abandone d M.M.G. who has been in the te mpo ra ry mana g ingc on se rv a tor sh ip o f t he De pa rtme nt f or no t le ss t

ha n s ix mon t h s and: (1) the Depa rtment has made rea sonable e ffor ts to return M. M. G. to Pa

uli ne Sur ita Ga

me z; (2 ) Pa

uli ne Sur ita

Ga me z ha s n ot r e g ula

rl y vis ite d or ma int a ine d sig nif ic ant c on ta c t w ithM. M. G. ; a nd (3 ) P a uli ne Sur ita Gamez has de monstrated an ina bility to provide M.M.G. with a sa fe environment, within the mea ning of § 161.001(1)(N), Te x as F amily Code.

• Pauline Surita Gamez fa i l ed to comply with the provisions of a cour t order that specific ally

established the a ctions nece ssary for Pauline Surita Gamez12 to obtain the return of

the ch i ld, M.M.G., who has bee n in the temporar y mana gi n g conser

vatorship of the D epar

tment for not less than nine months as a r esult o f M.M.G.’s re moval from Pauline Surita Gamez under Cha pte r 2 62 , T e xas F a mil y

Cod e , f or the a bu se or ne g le c t of M .M .G ., wi thi n the meaningof § 161.001(1) (O), T exas Family Code.
See Tex. Fam. Code Ann. § 161.001( 1)(D) , (E), ( F) , (N), ( O). When multipl e predicate g rounds for termin a ti o n ar e a ll e g e d u n d e r s e c ti o n 1 6 1
. 0 0 1 ( 1 ) , o n ly o n e g r o u n d is n e c e s s ar y to s u p p o rt the judgme nt when ther e is also a f inding that termination is in the child’s best interest. See I n re A.V. , 11 3 S. W.3 d at 36 2. B e c a

us e Ga me z do e s n ot c ha lle ng e the be st i nte re st f ind ingby the dis tr ic t c ourt , we must aff

irm the order

of termination if the e vidence was suff icient to support any

one of the g rounds found by

the district court. Se e id
. Th e De pa rtme nt a lso c on te nd s th a t G a me z did no t pr e se rv e he r s e ve nth o r n int h points of er ro r t hat cha lleng e the pr edicate g rounds found by the district court ba sed upon subsections (N) and (O ) of section 161.001(1) beca use Gamez failed to r aise these c halleng es in her statement of points on appe al in acc ordanc e with sec tion 263.405 of the fa mily code. See Te x. F a m. Code Ann. § 263.405.

Section 263.405 sets forth the s t ep s a p arty must take to appea l a final orde r terminating pare ntal rig hts. Se e id . A par ty must file with the trial court, no later than 15 day s after the orde r is signe d, a motion for new t ri al o r, if an a

ppeal is soug ht, a statement of the points on which the party intends to appea l. Se e id § 263.405(b). Pursuant to section 263.405(i), this C ourt “may not con s i d er any

issue that was not spec ifically prese nted to the trial cour t in a timely

filed statement of the points on which t h e party intends to appea l or in a statement c ombined with a motion for

new tria l.” Se e id . § 26 3. 40 5( i) ; Camarillo v. Texas Dep’t of Family & ProtectiveServs .,Gamez did not raise subsec tion (O) of se ct i o n 1 6 1
. 0 0 1 in her motion for ne w trial or 8 state me nt o f p oin ts o n a

pp e a l. A lth ou g h s he did

no t r a ise su

bs e c tio n (N) in h e r s ta te me nt o f p oin ts on appea l, she ref

ere nces the substance of

subsection (N) in her moti on for new t rial but identifies it as a complaint under

subsection (E) . Even if we we re t o co n clude that Gamez preser ved her complaint as to subsection (N) by raising its subst ance in her motion for new tria l, the unchalleng ed finding conce rning subsection (O) alone is suf ficient to suppor

t the district court’s orde r terminating Gamez’s par ental rig hts. See I n re A.V. , 113 S.W .3d 355, 362 (Tex. 2003).

13 No . 03- 07 -0 03 14 -C V, 20 08 Te x. Ap p. L EX I S 11 31 , at *1 -2 (T e x. Ap p. —A us tin F e b. 15 , 2 00 8, pe t. denied) (mem. op.) (held that appellate court prec luded from considering issues on ap p ea l ev en though timely

filed statement of

points on appea l beca

use appellant did not raise issues in statement of points on appea l to the trial court).

Gamez filed a

statement of points on ap p eal with the district cour t, but she did not
c ha lle ng e the dis tr ic t c ourt ’s fi nd ing s b a se d u po n s ub se c tio ns (N ) a

nd (O ) o f s e c tio n 1 61 .0 01 (1 ) i n he r state me nt of po int s on a pp e a l. Be cause Gamez failed to f ollow the proce dure se t forth in section 8 263.405 as to her seventh and ninth points of err or that challeng e the evidenc e to suppor t the district
c ourt ’s fi nd ing s o n th e se tw o g ro un ds , w e may no t c on sid e r t

he se tw o p oin ts o f e rr or

on a pp e a l. See Tex. F am. Code Ann. § 263.405. The unc halleng ed finding s are sufficie nt to support the district court’s order te rminating Gamez’s par ental rig hts. See I n re A.V. , 113 S.W .3d at 362; se e als o Toliver v. T

exas Dep’t of

Family &ProtectiveServs ., 21 7 S. W.3 d 8 5, 10 2 ( Te x. Ap p. —H ou sto n [1s t Di st. ] 200 6, no pe t.) (par ent challen g e d o nly on e of fo ur statut or y g ro un ds fo un d b y

tr ia l c ourt

to
su ppor t te rm inatio n “ and

thu s h e wa ive s a

ny c omp la int

a bo ut t he su ff ic ie nc y of the e vid e nc e to support these finding s”). We nee d not addre s s h er r emaining points of error then conc erningthe other pre dicate g rounds for te rmination found by the district court.14 Moreove r, even if Game z had satisfied the re quirements of se ction 263.405 as to ea ch of t he five predic ate g rounds found by the district court, we would conclude , based upon a revie w of the e ntire re cord, the evidenc e wa s leg ally and fa ctually

sufficie nt to support termination. Se e In re J

.F .C. , 96 S.W .3d at 266. As to the constructive abandonme nt g round in subse ction (N) of sec tion 160.001(1), the De partment’s re p orts showed a nd the ca seworke r Owe ns testified that Gamez fa iled to provide conta ct information to the De partment at any time and the De partment continually

tried to locate and provide service s to G amez during the pende ncy of the c ase. O wens also opined that Gamez could not take ca re of M.M.G. Ang elita testified that Game z’s last contact with M.M.G. was in Aug ust 2 0 0 7
. The e vidence also showed that Ga mez remained w ith her husband in a phy sically

violent relationship. This evidenc e was not controve rted and would produce
a fi rm be lie f o r c on vic tio n a s to the tr uth of the De pa

rtme nt’ s a lle g a tio n th a t G a me z co ns tr uc tiv e ly abandone d M.M.G. See Te x. F a m. C od e Ann. § 1 61 .0 01 (1 )( N) ; In re J

.F .C. , 96 S.W .3d at 266. Simi larly , the evidenc e conc erningthe Depa rtment’s other pr edicate g rounds for termination and that termination of Gamez’s pare ntal rig hts was in the best interest of M.M.G. w as larg ely uncontrove rt ed and would produce a firm belief

or convic tion as to the truth of the district court’s c orre sponding f indings. See Tex. F am. Code Ann. § 161.001(1)( D), (E ), (F ), (O) , (2); In re J .F .C. , 9 6 S. W.3 d at 26 6; Holley v . Adams , 544 S.W .2d 367, 372 (Tex. 1976) (listing fa ctors
c ourt s c on sid e r i n d e te rm ini ng be st inte re st of c hil d, inc lud ing sta bil ity of ho me , p are nta l a

bil iti e s, and the e motional and phy sical nee ds of the child). W e over rule Ga mez’s fourth, fifth, six th, seventh, a nd ninth points of er

ror.15

Adm ission of Fam ily Service Plan I n her e ighth point of e rror , Gamez contends that the di strict court erre d by admitting the family

servi ce plan alleg edly

signe d by

Gamez without proper a

uthentication. Game z did not raise this complaint in her points on appea l to the di strict court. For the same r eason the n that we may not consider he r seve nth and ninth points of error , we may not c onsider this pointof er ror. See Te x. F a m. C od e Ann. § 2 63 .4 05 ; In re E. M. C. , No. 11-08-00235- CV, 2009 Tex. App. L EXI S 4164, at *5, 12 (Tex. A

pp.—Eastland J une 11, 2009, no pet.) (mem. op.) (par ent’s evide ntiary challeng es not properly

prese rved b ecause fa iled to follow require ments of sec tion 263.405 of family code) ; In re K.C.B. , 2 80 S.W. 3d

88 8, 89 3 (T e x. Ap p. —A mari llo 20 09 , pe t. de nie d) (a pp e llate c ourt

c ou ld not consider pa

rent’s e videntiary

points of error

not raised in stateme nt of points on appea l). Game z
a lso fa ile d to ra ise c omp la int c on c e rn ingthe a

uth e nti c ity

of the se rv ic e pla

n w iththe dis tr ic t c ourt
. See Te x. R. A

pp . P. 33 .1 . F ur

the r, e ve n if we were to con sid e r t his po int of e rr or , w e wo uld conclude that the district c ourt did not abuse its discr etion by taking judicial notice of th e c o n t ent
o f i t s file that included the f amily service plan. See I

n re J.P.B

. , 1 80 S.W. 3d

a t 57 5; Downer , 701 S.W .2d at 241-42. We over rule Ga mez’s eig hth point of error
. CO NC LU SION For these re asons, we a ffirm the district c ourt’s orde r of ter mination.16 __________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and Pember

ton Affir med Filed: De cembe r 1, 2009