author: SAM GRIFFITH, Justice.

text:
    In re Lynwood T. MOORE, Relator.
    No. 12-03-00290-CV.
    Court of Appeals of Texas, Tyler.
    March 24, 2004.

      Robert R. Foster, for relator.
    Paul T. Fanning, The Law Office of Paul T. Fanning, P.C., Tyler, John Alan Goren, Dallas, for real party in interest.
    Randall L. Rogers, Pro se.
    Panel consisted of WORTHEN, C.J., SAM GRIFFITH, J., and DeVASTO, J.
   OPINION

SAM GRIFFITH, Justice.

Robert R. Foster (“Foster”) asserted his Fifth Amendment privilege during his testimony at a hearing on a motion to disqualify him from representing Lynwood T. Moore (“Moore”) in a divorce action. The trial court entered an order disqualifying Foster and disgorging him of all sums in excess of $10,000 that he received as payment for representing Moore. In this original proceeding, Moore, as relator, challenges the trial court’s order. We conditionally grant the petition for writ of mandamus, in part.

Background

Moore filed the underlying divorce action on May 2, 2003. Moore’s wife, Celeste (“Mrs Moore”), sought temporary orders, which were rendered and reduced to writing after a hearing. The trial court signed the temporary orders on May 19 (the “May 19 order”). On August 20, Mrs. Moore filed a motion to disqualify Foster. In her motion, Mrs. Moore pointed out that Foster had filed two previous, mandamus petitions on Moore’s behalf, one in this Court and one in the Texas Supreme Court. See In re Moore, 108 S.W.3d 581 (Tex.App.-Tyler 2003, orig. proceeding [mandamus denied]). She further averred that Foster had verified the petitions stating that he had personal knowledge of the factual matters stated in the petitions. See Tex.R.App. P. 52.3 (factual statements in mandamus petition must be verified by affidavit made on personal knowledge by affiant competent to testify to matters stated). By so doing, she concluded, Foster became a fact witness in the divorce action and must be disqualified. Mrs. Moore also alleged that she

suspected that Mr. Foster accepted payment in [the] form of diverted community property funds of this marriage from a third party for his representation of Lynwood T. Moore in this cause of action without the prior written permission of this Court in direct violation of the Temporary Orders of this Court [signed on May 19, 2003], thus making himself a party to the conspiracy to defraud the community property estate of the parties. For these and other reasons it has become evident that Mr. Foster may, and probably will, be called as a material fact witness in the subject litigation.

Mrs. Moore also sought disgorgement of any payment Foster received in violation of following provision in the trial court’s May 19 order:

It is FURTHER ORDERED, ADJUDGED AND DECREED that legal counsel for Lynwood T. Moore, Petitioner, (and any and all successor counsel or co-counsel) as agents of Petitioner and as officers of this Court, be and they are hereby ORDERED to refrain from accepting any sums of money or thing of value from or for Lynwood T. Moore or on Lynwood T. Moore’s behalf or account, directly or indirectly, for attorneys’ fees or costs of court in this cause in excess of such additional sums as may hereafter be approved in advance by the written order of this Court.

On September 4, 2003, the trial court conducted a hearing on the motion to disqualify. Mrs. Moore’s counsel, Paul Fanning (“Fanning”), called Foster as a witness and asked Foster how much he had been paid to represent Moore. Foster invoked the attorney-client privilege. Fanning disputed Foster’s claim of privilege, and the following exchange occurred:

THE COURT: If Mr. Foster has disobeyed a court order and took money he’s not supposed to, wouldn’t that be a crime?
FANNING: I don’t know. I don’t think so. I think it would be contemptuous, but not-
THE COURT: Wouldn’t I have to warn him of his constitutional rights if he’s about to testify, to something that could be used against him?
FANNING: If he was subject to a motion for contempt, I believe that’s true. So I think if he wants to assert his Fifth Amendment privilege, that’s fine. But I don’t think there’s any attorney-client communication privilege involved.
THE COURT:... .All right. Your objection is overruled, and you will answer the question that was asked.

Foster then testified that he had been paid $20,000 to represent Moore. He also stated that $10,000 of that sum was paid by a check from Moore sometime after May 27.

Upon further questioning, Foster stated that Moore did not pay the additional $10,000, that he did not know who else had paid him, and that he was not sure in what form the other funds were paid. The trial court asked Foster to explain how he could not know who paid him, and Foster again asserted the attorney-client privilege. A protracted discussion ensued in which Fanning argued that Foster’s claim of privilege could not be sustained. In his argument, Fanning made several references to alleged fraudulent conduct by Moore and Foster. For example, Fanning stated that Foster’s testimony was not privileged, and cited two exceptions that pertain to fraudulent acts by a client. See Tex. DisCiplinaey R. Peof’l Conduct 1.05(c)(7), (8), reprinted in Tex. Gov’t Code Ann., tit 2, subtit. G app. A (Vernon 1998) (Tex. State BáR R. art. X, § 9) (lawyer may reveal confidential information where necessary to prevent client from committing fraudulent act or to rectify consequences of client’s fraudulent act in which lawyer’s services have been used). Fanning also stated that

the Court can take it as a given that if Mr. Moore violates [the attorney’s fee provision of the May 19 order] through anyone, through himself or anyone acting in active concert with him-and I think anybody who would pay an attorney’s fee to his lawyer is acting in active concert with him-if he violates this Court’s order, then that is automatically fraud upon the Court, and it’s fraud upon my client.

Moreover, Fanning informed the court that “Mr. Foster is the person who is acting in active concert with Mr. Moore.”

In response to Fanning’s assertions, the trial judge stated that the cited exceptions were relevant “presuming I find it’s a fraudulent act.” The discussion continued as follows:

FANNING: Well, it’s a fraudulent act for Mr. Moore or his confederates to pay more than what the Court allowed to Mr. Foster and thus tilt the playing field in this case completely lopsided.
FANNING: Your Honor, I object to Mr. Foster invoking the [attorney-client] privilege. The privilege belongs to Mr. Moore, not Mr. Foster.
THE COURT: We’re here on the question right now that was asked on whether or not you can give me an attorney-client objection that prevents that answer... .Objection overruled. Answer the question.
FOSTER: I’m sorry, Your Honor. I can’t do it. And I want to further state in the record on my own defense that the only basis for which I can possibly establish a source of those funds would be from communications with my client. They are privileged and I cannot, absent waiver from my client, answer it without the peril of a grievance myself of having to reveal an attorney-client privilege.
And given the circumstances ... of where this is going, where he’s trying to turn this into sqme fraud that I have committed, I’m going to add the Fifth Amendment at this time, too.
It seems to me there is a potential, at least, for Mr. Fanning to leave here and go back and now sue me for fraud or somehow say I’ve defrauded the community or participated in a conspiracy which could be contemptuous and therefore quasi criminal in nature, and I, therefore, raise the Fifth Amendment in my own defense in addition to-without waiving the attorney-client privilege.

Fanning argued to the court that by invoking the Fifth Amendment, Foster had “again and independently disqualified himself.” Fanning further pointed out that both Foster and Moore had knowledge of the trial court’s order preventing Foster from accepting fees above the amount authorized by the court and “went against” the order. Therefore, Fanning argued, the court had no alternative but to disqualify Foster and order disgorgement of the unauthorized $10,000 payment.

The trial court ruled that Foster’s invoking the Fifth Amendment “by itself’ disqualified him as Moore’s attorney. However, the court recessed the hearing for the attorneys to research the issue. When the hearing resumed, Fanning and Foster presented their arguments and authorities to the court. After a second recess and the conclusion of further argument, the trial court restated its ruling that by invoking his Fifth Amendment rights, Foster had disqualified himself as Moore’s attorney. The court also ordered Foster to pay into the registry of the court all funds in excess of $10,000 that he received for representing Moore. These orders were reduced to writing and signed on September 5, 2003 (the “September 5 order”).

On September 8, Moore filed a petition for writ of mandamus with this Court complaining of the September 5 order. In his petition, Moore requested emergency relief and an order vacating the order. We stayed the September 5 order pending our consideration of Moore’s mandamus petition.

Prerequisites to Mandamus

Mandamus is an extraordinary remedy available “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding). To obtain mandamus relief, the relator must demonstrate a clear abuse of discretion for which there is no adequate remedy at law. Id. at 839-40. Mandamus is appropriate to review the alleged improper disqualification of counsel. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex.2002). A party generally lacks an adequate appellate remedy if its counsel is disqualified. Mendoza v. Eighth Court of Appeals, 917 S.W.2d 787, 789-90 (Tex.1996) (citing NCNB Texas Nat’l Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989)). Therefore, in considering the disqualification issue, we need only determine whether the trial court abused its discretion in disqualifying Foster. The general rule is that a relator challenging an incidental pretrial ruling by mandamus must demonstrate that appeal is an inadequate remedy. Walker, 827 S.W.2d at 842. We have found no exception that renders this general rule inapplicable to disgorgement orders. Consequently, Moore must satisfy both prerequisites to mandamus with respect to the disgorgement provisions of the May 19 order.

A trial court clearly abuses its discretion if “it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). This standard has different applications in different circumstances. Walker, 827 S.W.2d at 839. When reviewing factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. Id. The relator must establish that the trial court could reasonably have reached only one result. Id. at 840. The reviewing court cannot set aside the trial court’s decision unless it is shown to be arbitrary and unreasonable. Id.

Review of a trial court’s determination of the legal principles controlling its ruling is much less deferential. Id. A trial court has no discretion in determining what the law is or applying the law to the facts. Id. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.

Disqualification of Counsel

“Disqualification is a severe remedy.” Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex.1990). Texas courts have long held that the right to be represented by counsel of choice is a valuable one. Keller Indus., Inc. v. Blanton, 804 S.W.2d 182, 185 (Tex.App.-Houston [14th Dist.] 1991, orig. proceeding) (citations omitted). The unwarranted denial of that right can result in immediate and palpable harm. Nitla, 92 S.W.3d at 422; Keller, 804 S.W.2d at 185. Although the right is not absolute, a court should not grant a motion to disqualify counsel unless a compelling reason exists. See id.

Here, the trial court disqualified Foster because he invoked the Fifth Amendment during his testimony at the hearing on the motion to disqualify. The September 5 order contains the following provision:

[T]he Court finds that Robert R. Foster during the course of the hearing claimed a personal Fifth Amendment privilege against self-incrimination rather than reveal the identify [sic] of the person or entity which transferred the sum of $10,000.00 to him in violation of this Court’s Temporary Orders in this case and which Robert R. Foster was forbidden by this Court’s Temporary Orders from accepting. The Court is of the opinion and finds that this disqualifies Robert R. Foster from representing Petitioner, Lynwood T. Moore, independently of any of the yrounds pled in the motion and that Robert R. Foster is so disqualified. (Emphasis added).

In reviewing the merits of Moore’s petition, we focus solely on the trial court’s ruling. See In re Meador, 968 S.W.2d 346, 350 (Tex.1998). Consequently, we do not consider whether Foster could have been disqualified on the grounds alleged in Mrs. Moore’s motion.

Moore contends that mandamus should issue because case law does not support Foster’s disqualification. He also argues, at least implicitly, that we should not draw a negative inference from Foster’s assertion of the Fifth Amendment “given the allegations and tenor of accusations of [Mrs. Moore’s] attorney, made personally against [Foster].” Mrs. Moore counters that the trial court did not abuse its discretion in disqualifying Foster and, as support for her position, relies upon Contico Int’l, Inc. v. Alvarez, 910 S.W.2d 29 (Tex.App.-El Paso 1995, orig. proceeding), mand. granted sub. nom., Mendoza v. Eighth Court of Appeals, 917 S.W.2d 787 (Tex.1996). Unlike this case, the trial court in Contico refused to disqualify an attorney who asserted his Fifth Amendment privilege. However, the analyses in Contico and Mendoza, when read together, are pertinent here.

Contico and Mendoza

In Contico, the plaintiffs attorney in the underlying proceeding (“Scherr”) was accused of stealing Contico’s investigation file. The accusation was made after Conti-co’s attorney noticed during a discovery hearing that Scherr appeared to possess a notebook and a videotape from Contico’s file. Scherr made no response to the accusation and left the courtroom. Criminal charges were filed against Scherr, and the defendants joined in a motion to disqualify Scherr and his law firm on the ground that Scherr had obtained possession of privileged materials in violation of the Texas Disciplinary Rules of Professional Conduct. Prior to the healing on the motion to disqualify, Scherr, through counsel, tendered his notebook and videotape to the trial court for in camera inspection. Mendoza, 917 S.W.2d at 788-89. At the hearing on the motion, Scherr was called as a witness. When asked precisely what he possessed and how he obtained it, Scherr refused to answer and invoked his Fifth Amendment privilege. Contico, 910 S.W.2d at 82-33. Conflicting evidence was introduced concerning whether the materials Scherr possessed were identical to the notebook and videotape in question. At the conclusion of the hearing, the trial court denied the motion to disqualify. Mendoza, 917 S.W.2d at 789.

The defendants sought a writ of mandamus requiring the trial court to vacate its order and enter an order disqualifying Scherr. Contico, 910 S.W.2d at 31. The court conditionally granted the writ, but emphasized that Scherr was not being penalized for invoking a constitutional right. Id. at 43, 45. Rather, the court noted that Scherr’s refusal to answer when serious charges were first leveled against him and his later assertion of the Fifth Amendment created a “permissible presumption” that Scherr was in possession of Contico’s confidences. Id. at 37. However, the court applied the presumption conclusively because the issue related to “the ethical conduct of the legal profession when such conduct directly impacts on the relationship of a lawyer, as an officer of the court, and the bench.” Id. at 37. Stated another way, Scherr was penalized “for obstructing an inquiry into the performance of his lawyerly duties and for the merely presumptive possession of confidential information.” Id. at 43. Whether he engaged in actual wrongdoing was not a consideration. See id. at 37. “The presumption ... [was] not based on the truth or falsity of the allegations against Scherr and require[d] no final determination of the information he possessed or how he obtained it.” Id.

Scherr and his clients filed a petition for writ of mandamus in the supreme court challenging the issuance of the writ. Mendoza, 917 S.W.2d at 787. In contrast to the San Antonio court’s approach, the court did not address Scherr’s duty as a lawyer. Instead, it considered the trial court’s ruling in light of the record and focused on the evidence relating to Scherr’s alleged wrongdoing. Id. at 790. First, the court stated that, without more, evidence Scherr possessed Contico’s confidential information along with Scherr’s assertion of the Fifth Amendment could justify a negative inference that Scherr acquired the information by unauthorized means. Id. Second, the court noted that the record contained conflicting evidence on whether the information in Scherr’s possession was actually a copy of Conti-co’s file. The trial court resolved the conflict in Scherr’s favor, and those factual determinations could not be disturbed by mandamus review. Id. Consequently, the supreme court concluded that the trial court did not abuse its discretion in denying the motion to disqualify and mandamus by the court of appeals was improper. Id.

From our reading of Contico and Mendoza, we conclude that resolution of the issue before us turns on whether the trial court could have reasonably concluded that Foster had participated in a conspiracy to defraud the Moores’ community estate.

Application of Law to Facts

The record accompanying Moore’s mandamus petition establishes the following:

1. The May 19 order prohibited Moore’s counsel, including any successor counsel, from accepting payment for Moore’s attorney’s fees or costs of court except as approved in advance by written order of the trial court.
2. Foster was Moore’s successor counsel.
3. Moore and Foster both had actual knowledge of the contents of the May 19 order.
4. Foster accepted $10,000 from a third party as payment for Moore’s attorney’s fees.
5. Both Moore and Foster knew the identity of the third party.
6. Foster asserted his Fifth Amendment privilege in response to the trial court’s ruling that he must disclose the identity of the third party.

The record is replete with references to Foster’s participation in a conspiracy with Moore. However, those references are found only in Mrs. Moore’s motion to disqualify and in Fanning’s arguments. Mere allegations of unethical conduct are not evidence. See Spears, 797 S.W.2d at 656. As such, the record does not contain any evidence that Foster engaged in the alleged conduct. Nevertheless, Mrs. Moore maintains that because Foster asserted his Fifth Amendment privilege, the trial court could have inferred Foster’s participation in the alleged conspiracy.

A fact finder may draw an adverse inference against a party who pleads the Fifth Amendment. Texas Capital Securities, Inc. v. Sandefer, 58 S.W.3d 760, 779 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (citing Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976)); see also Tex.R. Evid. 513(c). Refusal to answer questions by asserting the privilege is relevant evidence from which the finder of fact in a civil action may draw whatever inference is reasonable under the circumstances. Lozano v. Lozano, 983 S.W.2d 787, 791 (Tex.App.-Houston [14th Dist.] 1998), rev’d on other grounds, 52 S.W.3d 141 (Tex.2001).

In essence, Mrs. Moore argues that the trial court could reasonably infer from Foster’s Fifth Amendment assertion (1) that Moore diverted community funds to a third party; (2) that those funds were diverted for the purpose of paying Foster’s attorney’s fees for representing Moore; and (3) that Foster knew of Moore’s course of action at its inception. See Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex.1995) (parties must be aware of harm or wrongful conduct at inception of conspiracy); Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983) (meeting of the minds on object or course of action is an element of civil conspiracy). However, such inferences would be no more than pure speculation and are not reasonable based solely upon Foster’s refusal to identify the third party. Furthermore, even if such inferences could be drawn, it is equally plausible to infer the opposite. See Sandefer, 58 S.W.3d at 780 (when defendant asserts Fifth Amendment, inference that codefendant collaborated with him is just as reasonable as inference that codefendant was unaware of illegal activity). When two equally consistent inferences can be made from an assertion of the Fifth Amendment so that neither inference is more probable than the other, neither inference can be made. See id. (citing Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 278 (Tex.1995)). Therefore, the trial court could not have inferred that Foster engaged in the conduct alleged.

Disgorgement

Moore also contends that the trial court abused its discretion by ordering the disgorgement of the third-party payment. We disagree.

The May 19 order, in pertinent part, prohibits Moore’s counsel from accepting payment on Moore’s behalf, directly or indirectly, for attorneys’ fees or costs of court without advance written approval by the trial court. The September 5 order states that a third party “transferred the sum of $10,000.00 to [Foster] in violation of this Court’s Temporary Orders in this case and which Robert R. Foster was forbidden by this Court’s Temporary Orders from accepting.”

The record reflects that Foster represented Moore at a hearing on May 27, 2003 when the trial court considered Moore’s motion to vacate the May 19 order. The court denied the motion by written order signed on May 30. At the hearing on the motion to disqualify, Foster testified that he had been paid $20,000, of which $10,000 was paid by someone other than Moore. Foster also testified that he received the third-party payment after May 27, the date of the hearing on Moore’s motion to vacate the May 19 order. This evidence supports the trial court’s finding.

Conclusion

Based upon our review of the record and the foregoing analysis, we conclude that the trial court could not have reasonably concluded that Foster conspired with Moore to defraud the Moores’ community estate. Therefore, we hold that the trial court abused its discretion in disqualifying Foster. We also hold that the trial court did not abuse its discretion in ordering disgorgement of the third-party payment in the amount of $10,000. Because Moore has shown no abuse of discretion in ordering the disgorgement, we do not address whether Moore has an adequate remedy by appeal. We conditionally grant mandamus relief only as to Foster’s disqualification. We trust that the trial court will vacate the portion of its September 5 order disqualifying Foster. The writ will issue only if it fails to do so. The stay of the underlying proceeding granted on September 9, 2003 is lifted.

Writ conditionally granted, in part.

      . This is a reference to Fanning’s complaint that Moore had failed to pay Fanning $55,000 in interim attorney's fees, forensic accounting fees, and appraisal and miscellaneous fees as required by the May 19 order.


source: Caselaw Access Project

author: DON H. REAVIS, Justice.

license: Public Domain

text:
    In the Interest of Z.J., a Minor Child.
    No. 07-03-0401-CV.
    Court of Appeals of Texas, Amarillo.
    March 29, 2004.
    Rehearing Overruled May 5, 2004.

      Lisa D. Ratzke, Law Office of Lisa D. Ratzke, Lubbock, for Appellant.
    Duke Hooten, Texas Department of Protective & Regulatory Services, Special Litigation, Austin, for Appellee.
    Cindy Hill, Lubbock, Ad litem.
    Before JOHNSON, C.J., and DON H. REAVIS and CAMPBELL, JJ.
   OPINION

DON H. REAVIS, Justice.

Colleen Jiminez appeals from an order following a bench trial terminating her parental rights to her son, Z.J., a minor child. No findings of fact and conclusions of law were requested, and none were signed and filed in the proceeding commenced by the Department of Protective and Regulatory Services. Presenting two issues, Colleen contends (1) the trial court committed reversible error by not assuring that the court appointed attorney ad litem for the child performed her duties according to section 107.014 of the Texas Family Code Annotated (Vernon 2001) and the American Bar Association Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases, and (2) there was no evidence or insufficient evidence to support the trial court’s findings that she knowingly placed or allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child, or termination of her parental rights was in the best interest of the child. We affirm.

Colleen is the natural mother of Z.J., who was born on November 26, 1995, and was six years old when the trial court appointed an attorney ad litem to represent his interest. Z.J.’s natural father is deceased.

By her first issue, Colleen contends the trial court committed reversible error by not assuring that the court appointed attorney ad litem for Z.J. performed her duties according to section 107.014 of the Code and the American Bar Association Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases. We disagree. Colleen asserts the record does not demonstrate that the court appointed attorney ad litem for Z.J. ever reviewed any of his relevant medical, psychological, or school records, or that she interviewed him or any of the parties prior to trial. Although section 107.014 prescribes seven specific duties to be performed by the ad litem, it does not require that evidence be presented so the record will show that the ad litem performed the statutory duties and does not authorize or direct the trial court to supervise or monitor the ad litem’s services. Further, the statute does not authorize either a parent or another party to present any challenge to the services rendered by the ad litem or provide that the failure of an ad litem to perform the seven duties constitutes reversible error of a judgment terminating parental rights.

Although section 107.014 is not implicated, in D—F v. State, 525 S.W.2d 933 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref'd n.r.e.), among other points of error, the child’s mother contended the evidence was legally and factually insufficient to support the termination of the rights of the natural father. After noting that the mother’s attorney did not represent the father, the court held the mother did not have any standing to present any contentions as to the child’s father. Because Colleen’s attorney does not make any appearance here on behalf of Z.J., and section 107.014 does not authorize a parent to challenge an order of termination of parental rights on the ground that the ad litem did not comply with section 107.014, we hold that Colleen has no standing to present her first issue.

Moreover, as argued by DFPS, neither party may take a position on appeal that was not presented to the trial court. McDuffie v. Blassingame, 883 S.W.2d 329, 335 (Tex.App.-Amarillo 1994, writ denied). In order to preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion, state the specific grounds thereof, and obtain a ruling. Tex.R.App. P. 33.1(a)(1). If however, the matter would not otherwise appear in the record, then a party may preserve an appellate complaint by a formal bill of exception as allowed by Rule 33.2 of the Texas Rules of Appellate Procedure. McDuffie, 883 S.W.2d at 335. Here, however, Colleen’s complaint was not presented to the trial court and thus, the issue presents nothing for review. Colleen’s first issue is overruled.

By her second issue, Colleen contends there was no evidence or insufficient evidence to support the trial court’s finding that she knowingly allowed Z.J. to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child, or that termination of her parental rights was in the best interest of her child. Tex. Fam.Code Ann. § 161.01(d), (e). We disagree.

Standard of Review

The natural right existing between parents and their children is of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). Consequently, termination proceedings must be strictly scrutinized. In Interest of G.M., 596 S.W.2d 846 (Tex.1980). A termination decree is complete, final, irrevocable, and divests for all time that natural right as well as all legal rights, privileges, duties, and powers with respect to each other except for the child’s right to inherit. Holick, 685 S.W.2d at 20. In proceedings to terminate the parent-child relationship brought under section 161.001 of the Family Code, the petitioner must establish one or more acts or omissions enumerated under subsection (1) of the statute and must additionally prove that termination of the parent-child relationship is in the best interest of the child. Both elements must be established and proof of one element does not relieve the petitioner of the burden of proving the other. See Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976).

Because termination of parental rights is of such weight and gravity, due process requires the petitioner to justify termination by clear and convincing evidence. § 161.001; In Interest of G.M., 596 S.W.2d at 847. This standard is defined as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id. Although the clear and convincing burden of proof required at the trial level is well settled, appellate courts have struggled to reconcile this burden of proof with the standard for appellate review of challenges to the sufficiency of evidence. As this Court has previously noted, the clear and convincing standard does not alter the rules generally applicable when appellate courts review factual findings. In Interest of R.D.S., 902 S.W.2d 714, 716 (Tex.App.-Amarillo 1995, no writ).

That being said, we turn to the standards of review for challenges to sufficiency of the evidence. In a legal sufficiency review of the evidence to support an order terminating parental rights, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). To give appropriate deference to the factfinder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume the factfin-der resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. Thus, we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id.

The standard for reviewing the factual sufficiency of termination findings is whether the evidence is such that a reasonable factfinder could form a firm belief or conviction about the truth of DFPS’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.2002). Under that standard, we consider whether the disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

According to an offense report of the Texas Department of Public Safety, on April 13, 2001, Colleen and Z.J. were passengers in a pickup driven by Colleen’s paramour, Summerford. After Summer-ford was stopped for a traffic violation, the DPS trooper discovered a parole warrant was outstanding for Summerford’s arrest. He and Colleen were taken to Tahoka and arrested for possession of a controlled substance with intent to deliver. The arresting officer made arrangements for the placement of Z.J. with relatives.

The offense report also indicated that Summerford had six prior arrests for narcotics, including delivery of a controlled substance and possession with intention to deliver, and three prior charges for burglary. During a search of the pickup, in addition to a substantial quantity of methamphetamine, the officer found a set of scales, baggies, and syringes. The report further indicated that Colleen had told the officer she knew Summerford had a criminal record and she had recently used drugs.

The evidence is replete with instances of Colleen’s drug use. However, Colleen admitted at trial that she was an addict and had been using methamphetamine “all of [Z.J.’s] life.” In addition, Colleen admitted it was not a good thing for her to take Z.J. out with a drug dealer and that she knew Summerford was selling drugs.

Upon being notified of the events of April 13, 2001, the DFPS commenced an investigation and Z.J. was placed with relatives under a safety plan on June 6, 2001. Among other things, the safety plan required Colleen to refrain from drug or alcohol use. However, she did not comply with the plan and a drug assessment found her to be chemically dependent. Based on that determination, she was referred to outpatient drug and alcohol treatment and failed to show up for many appointments.

Despite Z.J.’s relatives’ admission that they violated the safety plan by allowing Z.J. to stay with Colleen, he was again placed with them upon their agreement not to allow Colleen to have contact with Z.J. without the consent of DFPS. Colleen and her relatives, however, violated the plan and resultantly, Z.J. was placed in foster care. At trial, Colleen admitted she did not visit with her son between August 15, 2002 and June 2003.

A DFPS caseworker testified that Colleen’s continued drug use and her failure to seek treatment and participate in any services offered to help her quit using drugs endangered Z.J.’s well being and prevented her from providing a safe environment for him. A licensed professional counselor worked with Z.J. for several months. According to her testimony, initially he was overactive, impulsive, and defiant; however, while in foster care and under her counseling, he exhibited “excellent progress overall.” The counselor further testified that Z.J. responded very well to his placement at Boys Ranch and, in her opinion, he “could be adoptable.”

Where, as here, findings of fact or conclusions of law were not requested and none were filed, we must presume that every disputed fact issue was found by the trial court in support of the judgment rendered. Fields v. Texas Emp. Ins. Ass’n, 565 S.W.2d 327, 329 (Tex.Civ.App.-Amarillo 1978, writ ref'd n.r.e.). In the summary of her argument, Colleen contends there was no evidence or insufficient evidence that (1) Z.J. was placed in a dangerous situation, (2) Z.J. was placed with persons who were engaging in conduct that could jeopardize his welfare, and (3) there was no evidence that Z.J. was in danger while in her care and custody. The evidence, however, presents a history of continuous drug abuse and addiction, criminal activity by Colleen, and placement of Z.J. in an environment with a known drug dealer with a criminal record. Contrary to Colleen’s argument, the record contains both direct and circumstantial evidence of a probative nature from which the factfinder could have formed a firm belief or conviction that the allegations of DFPS were true. In re J.F.C., 96 S.W.3d at 266. Thus, we conclude the evidence is legally and factually sufficient to support the trial court’s termination order. Moreover, considering that (1) Z.J.’s father is deceased, (2)his relatives were unable to abide by the service plans, and (3) Colleen’s lifestyle, the evidence is also sufficient to support the trial court’s presumed finding that removal of Z.J. from the environment was in his best interest. Colleen’s second issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

      . Now referred to as the Department of Family and Protective Services (DFPS).

      . Circumstantial evidence may be used to establish any material fact, but it must transcend mere suspicion, provided the material fact must be reasonably inferred from the known circumstances, and circumstantial evidence often involves linking what may be apparently insignificant and unrelated events to establish a pattern. Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex.2001).


author: JAMES T. CAMPBELL, Justice.

text:
    In the INTEREST OF J.W.M., Jr. and L.P.M., Children.
    No. 07-03-0308-CV.
    Court of Appeals of Texas, Amarillo.
    March 29, 2004.
    Rehearing Overruled April 29, 2004.

      Lisa D. Ratzke, Law Office of Lisa D. Ratzke, Lubbock, for Appellant.
    Lucynda Wood, Texas Dept, of Family & Protective Serv., Amarillo, and Lana S. Shadwick, Texas Dept, of Family & Protective Serv., Houston, for Appellee.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

Appellant Daphne Mayo, the biological mother of minor twins J.W.M., Jr. and L.P.M., appeals the judgment, entered after a non-jury trial, terminating her parental relationship with her children. Four issues are presented to us. We affirm the judgment.

In her first issue, appellant contends the trial court committed reversible error when it rendered an order of termination beyond the time allowed by Texas Family Code Section 263.401. The Family Code limits the length of time a suit affecting the parent-child relationship, in which the Department of Family and Protective Services is named temporary managing conservator of children, can remain on a court’s docket. Unless the court has rendered a final order, or granted an extension, the suit must be dismissed on the first Monday following the first anniversary of the date the court rendered the order naming the Department as temporary managing conservator. Tex. Fam.Code Ann. § 263.401(a) (Vernon 2002).

The court may maintain the suit on its docket and grant an extension of 180 days if the court finds that it is in the best interest of the child to continue the appointment of the Department as temporary managing conservator. Tex. Fam. Code Ann. § 263.401(b). The court is required to dismiss the suit when the additional 180 days has expired, if it has not rendered a final order or dismissed the suit prior to that date. Tex. Fam.Code Ann. § 263.401(c). The court may not grant an additional extension that extends the suit beyond the required dismissal date. Tex. Fam.Code Ann. § 263.401(c). The time restraints imposed by Section 263.401 are mandatory and not subject to modification by agreement. Tex. Fam. Code Ann. § 263.402.

The Family Code provides an exception if the court renders a temporary order returning the child to a parent, under the Department’s supervision. Tex. Fam. Code Ann. § 263.403. This is referred to as a “monitored return” of the child. When this occurs, the court sets a new dismissal date no more than 180 days from the date of the order returning the child to the parent. If, however, the Department removes the child from the parent before the new dismissal date, the dismissal date is reset to 180 days from the date of the removal. Section 263.403(a) reads:

(a) Notwithstanding Section 263.401, the court may retain jurisdiction and not dismiss the suit or render a final order as required by that section if the court renders a temporary order that:
(1) finds that retaining jurisdiction under this section is in the best interest of the child;
(2) orders the department to return the child to the child’s parent;
(3) orders the department to continue to serve as temporary managing conservator of the child; and
(4) orders the department to monitor the child’s placement to ensure that the child is in a safe environment.

Here, on May 14, 2001, the Department filed an Original Petition for Protection of a Child, For Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. The Department requested that the court immediately appoint the Department temporary sole managing conservator of Mayo’s children. The court did so on May 18, 2001, and set an original dismissal date of May 20, 2002, in accordance with Section 263.401.

On May 17, 2002, counsel for the children’s father filed a motion requesting the court retain the suit on its docket and set a new dismissal date. On the same day, the court granted the motion, retained the suit on its docket and set a dismissal date of November 13, 2002, pursuant to Section 263.401(b). A final hearing was set for November 1, 2002, and all parties were notified.

In October of 2002 the court ordered all parties to attend and participate in mediation, scheduled for October 24, 2002. Appellant did not attend. The parties who were present at the mediation reached an agreement whereby the children would be returned to their father under supervision of the Department. They also agreed the Department would be allowed to file a supplemental petition, adding the children’s foster parents as parties to the suit. At a hearing held on November 1, 2002, the court found it was in the children’s best interest to be placed in the father’s home and ordered them returned to the father on a monitored return. Although notified, appellant was not present at the hearing. The children were returned to the care of their father on November 5, 2002. Pursuant to Section 263.403(b), the dismissal date was reset for April 30, 2003, 180 days from the date the temporary order was rendered.

The monitored placement ended on December 17, 2002, when the court signed an order returning the children to the care of the Department. The order contained findings that the children’s father had failed to attend BIPP classes, left the children with individuals not approved by the Department, used alcohol, and left the children with inappropriate care givers. The court reset the final date for dismissal to June 15, 2003, in accordance with Section 263.403(c).

On June 9 and 13, 2003, the court held a hearing to determine whether the parental rights of appellant and the father of the children should be terminated. The court ordered termination of both parents’ parental rights on the 13th, and signed a written judgment to that effect on June 16, 2003. Jeffrey Wayne Mayo, Sr., father of J.W.M., Jr. and L.P.M., filed a notice of appeal, but has not filed a brief or otherwise pursued his appeal.

Appellant relies on In re T.M., 33 S.W.3d 341 (Tex.App.-Amarillo 2000, no pet.), to support her contention that the dismissal deadline was improperly extended pursuant to a mediated agreement. The parties in In re T.M. attempted to bypass the deadline imposed by Section 263.401 by executing a written agreement to postpone a final hearing and dismissal date. This court held that an agreement to extend the Section 263.401 dismissal date was unenforceable. Id.

Appellant is incorrect in her assertion that the court here extended the deadline for a final hearing in order to comply with terms of the mediation agreement. The court followed the agreement to the extent it returned the children to the possession of their father, but the terms of the agreement were not binding on the court, and the deadline for a final order was extended not by the agreement, but by the provisions of Section 263.403. Tex. Fam.Code Ann. § 263.403(b)(2). In re T.M. noted that the “deadlines imposed by Section 263.401 may be avoided via an order directing, among other things, the DPRS to relinquish actual physical custody of the child to a parent.” 33 S.W.3d at 346, n. 4 (citing former Tex. Fam.Code Ann. § 263.402(a), currently § 263.403).

Appellant asserts that allowing additional extensions under Section 263.403, when the 18-month maximum case duration under Section 263.401 has expired, defeats the legislative intent that child custody issues be resolved speedily. But when a statute is clear and unambiguous, we give the statute its common meaning. One 1985 Chevrolet v. State, 852 S.W.2d 932, 935 (Tex.1993); Call v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983). We must presume that the legislature chose its words carefully, that every word in a statute was included for some purpose and that every word excluded was omitted for a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981); In re M.J.M.L., 31 S.W.3d 347, 354 (Tex.App.-San Antonio 2000, pet. denied). If the legislature intended that Section 263.403 be subject to the time restraints of Section 263.401, we presume that it would have worded the statute to that effect. Instead, the first sentence of Section 263.403 plainly states that it is effective, “Notwithstanding Section 263.401, ...” Appellant’s first issue is overruled.

Appellant, in her second issue, complains that counsel was appointed for her only 21 days before the termination hearing. She couches her complaint as one of ineffective assistance of counsel, arguing, by analogy to the requirement of Rule 245 of the Rules of Civil Procedure that a party be given 45 days notice of a trial setting, that appointment of counsel 21 days before the hearing necessarily rendered counsel’s assistance ineffective.

As the Department points out, appellant did not request a continuance or otherwise raise any objection at the termination hearing that her counsel had insufficient time or opportunity to prepare for trial. The Department urges that appellant has not preserved the complaint for appellate review. Appellant argues she is entitled to raise the issue for the first time on appeal. We express no opinion on that question, but will overrule the issue.

The Texas Supreme Court has adopted the Strickland test as the appropriate standard for evaluating ineffective assistance of counsel claims in civil parental-rights termination proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); In re M.S., 115 S.W.3d 534, 544-45 (Tex.2003). Under Strickland, appellant must first show that her counsel’s performance was deficient. 466 U.S. at 687, 104 S.Ct. 2052. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id. Second, she must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors deprived her of a fair trial, a trial whose result is rehable. Id.

Appellant does not assert that she was ineffectively represented. She asserts that the short time provided counsel “greatly affected” her ability to prepare properly for trial of the case, but she does not point to any act or omission of counsel that rendered the representation ineffee-tive. Appellant’s second issue is overruled.

Appellant’s third issue alleges the trial court erred in allowing the joinder of the foster parents, Ivan and Becky Sharp, and their subsequent appointment as pos-sessory conservators under a mediation agreement. Appellant, although given notice, did not attend a mediation session ordered by the court. An agreement was reached by those attending the mediation that the Sharps should be added as parties to the suit and be named as possessory conservators of the children. The Department filed a supplemental petition in November 2002 naming the foster parents as parties. Appellant contends that the foster parents do not meet the requirements for joinder in Texas Rule of Civil Procedure 39(a) and that their participation in mediation, and presence in the courtroom during the trial, prejudiced appellant, causing an improper judgment.

The Department contends appellant waived her complaint over joinder of the foster parents, and we agree. A complaint about the joinder of a party is waived if not timely raised with the trial court. Rosales v. H.E. Butt Gro. Co., 905 S.W.2d 745, 751 (Tex.App.-San Antonio 1995, writ denied); University of Tex. at Austin v. Hinton, 822 S.W.2d 197, 200 (Tex.App.-Austin 1991, no writ); see Tex.R. Civ. P. 41. Appellant did not challenge the joinder of the Sharps, or their presence in the courtroom, at the time of trial. Appellant waived her right to complain of the joinder on appeal.

Moreover, the Sharps expressed a desire to adopt the children. With the exception of five weeks the children resided with their father in the fall of 2002, they were the sole care givers of the children from December of 2001 until the final hearing in June of 2003. Under Section 102.004 of the Family Code, the court may grant a person, deemed by the court to have had substantial past contact with the child, leave to intervene in a pending suit filed by a governmental entity such as the Department. Tex. Fam.Code Ann. § 102.004(b); In re M.T., 21 S.W.3d 925 (Tex.App.-Beaumont 2000, no pet.); see In re A.M., 60 S.W.3d 166, 169 (Tex.App.-Houston [1st Dist.] 2001, no pet.). The Sharps’ joinder in the suit as parties accomplished the same result. Appellant’s third issue is overruled.

Appellant’s fourth issue challenges the sufficiency of the evidence to support the judgment of termination under Section 161.001. The judgment may be affirmed if it is supported by evidence sufficient to establish that one of the grounds listed in Section 161.001(1) exists and that termination is in the best interest of the children, as required by Section 161.001(2). In re A.V., 113 S.W.3d 355, 362 (Tex.2003); In re P.E.W., 105 S.W.3d 771, 777 (Tex.App.-Amarillo 2003, no pet.).

The trial court found that appellant knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children, Section 161.001(1)(D); that appellant engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children, Section 161.001(1)(E); and that termination of parental rights between appellant and her children was in the best interest of the children. Because we find the evidence sufficient to support the finding under Section 161.001(1)(E), we consider only the evidence addressing that ground. Appellant does not tell us if she challenges the legal sufficiency or factual sufficiency of the evidence. We consider the evidence under both standards.

Findings under Section 161.001 must be based on clear and convincing evidence. Tex. Fam.Code Ann. § 161.001. Clear and convincing evidence is the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex. Fam.Code Ann. § 101.007. The clear and convincing evidence burden of proof requires a higher level of appellate scrutiny in reviewing the legal and factual sufficiency of the evidence. In re J.F.C., 96 S.W.3d 256 (Tex.2002); In re C.H., 89 S.W.3d 17, 19 (Tex.2002).

In reviewing legal sufficiency, we look at all the evidence, in the light most favorable to the judgment, to determine if the trier of fact could reasonably have formed a firm belief or conviction that grounds existed for termination under the Family Code. In re J.F.C., 96 S.W.3d at 265-66. When there is a factual sufficiency challenge, we consider only evidence the fact finder could reasonably have found to be clear and convincing. Id. at 266. The evidence must be such that a fact finder could reasonably form a firm belief or conviction that grounds exist for termination under Texas Family Code Sections 161.001 and 161.206(a). In re C.H., 89 S.W.3d at 18-19. In the context of our review of the evidence that appellant’s conduct, or that of persons with whom she knowingly placed the children, endangered their physical or emotional well-being, to “endanger” means to expose to loss or injury; to jeopardize. Texas Dep’t of Human Services v. Boyd, 121 S.W.2d 531, 533 (Tex.1987).

The twins were born in May 2000. The record reflects that appellant had little involvement with their care after April 2001, so the evidence with regard to her conduct focuses on the children’s first year.

Appellant testified to a history of drug problems. She began using illegal drugs when she was sixteen, beginning with marijuana and later involving cocaine and methamphetamines. Her methamphetamine use began several years before the twins’ birth. She testified that she stopped using methamphetamines before she became pregnant with the twins, but resumed use of the drugs within three months after their birth. She used the drugs while caring for the children. Her testimony was that her children were in danger when they were in her care after her drug use resumed. At the hearing, appellant and the twins’ father presented a united front on the question of termination, both of them testifying that the parental rights of neither should be terminated. The father testified, though, that appellant’s drug use led him to contact the Department as early as January 2001 with regard to the care she was giving the children.

During periods that appellant and her husband were separated after the twins’ birth, she also left them in the care of acquaintances she admittedly knew were using drugs. A caseworker testified that appellant admitted leaving the infants for as long as a month. On another occasion to which appellant testified, she went to Florida, leaving her children with a friend who was arrested while caring for the children. The friend’s fifteen-year-old daughter took care of the children until appellant returned. Appellant also left the children at home with their father when he was unconscious from drinking.

The record contains sufficient uncontro-verted, clear and convincing evidence, much of it fi'om appellant’s own testimony, for the court to have reasonably formed a firm belief or conviction that appellant engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical and emotional well-being of the children. Tex. Fam.Code Ann. § 161.001(1)(E).

We next consider whether the evidence is sufficient to demonstrate that termination of appellant’s parental rights was in the children’s best interest. The evidence offered to prove the grounds for termination is also relevant in determining if termination is in the children’s best interest. In re C.H., 89 S.W.3d at 28; In re P.E.W., 105 S.W.3d at 779. See also Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976).

Appellant’s pattern of absence from her young children continued after the Department assumed responsibility for their care. The record reflects little contact between appellant and those responsible for her children’s care for a period of eighteen months beginning about the time of their first birthday. At one point appellant left a halfway house, without notifying the Department of her whereabouts, for approximately nine months. She then had contact with the Department, but a short time later disappeared again for six months. She did not provide financial support for the children. Appellant testified to several reasons for her absence, including concerns for her own physical health, her belief that her parental rights had already been terminated and her knowledge that she was not capable at the time of taking care of the children. Regardless of the reasons for her separation from them, though, the twins were without contact with their mother for a significant part of them lives.

During her absence, the twins had bonded with the Sharps, with whom they had resided since December 2001 except for the five weeks of the failed monitored placement with their father. Even during those weeks, the Sharps had regular contact with the children, sometimes picking them up from day care at their father’s request. All parties acknowledged the quality of care the Sharps had given the children, and that the children were thriving under their care. Becky Sharp testified to their eagerness to adopt the children.

Appellant argues that the court should not base a finding on the best interest of the children simply on the conclusion that the foster parents would be a “better” placement for the children. While the prospect of adoption into a stable home cannot alone be said to be a determinative factor, it clearly is among the factors the court properly could consider in this case. See In re C.H., 89 S.W.3d at 28; Holley, 544 S.W.2d at 372. The twins’ guardian ad litem cited their need for certainty and stability, and the prospect of an adoptive placement with the Sharps, in recommending termination.

Appellant’s case emphasized the improvement in her behavior and circumstances during the months prior to the June 2003 final hearing. She presented undisputed evidence that weighs against a finding that termination was in the children’s best interest, including evidence that she had completed an inpatient drug treatment program and CPS parenting classes, and, for a period of time, attended AA meetings on a weekly basis. She also indicated that she relocated to a smaller town in March of 2003, partly to avoid former acquaintances who were involved in drug use. She testified to her desire to raise her children, and to her plans to marry, after her divorce from the twins’ father became final, the man with whom she was living. The testimony of that man and of other family members was supportive.

Appellant also testified that she had not used drugs since November 2002. The Department presented a urinalysis report based on a sample taken in late May shortly before trial that was positive for methamphetamine use. Appellant disputed the correctness of that report, and presented both a urinalysis report and a ham follicle analysis report from samples taken a few days later, both indicating no drug use. There was testimony that a hair follicle analysis will reveal drug use within ninety days of the test; there also was testimony, though, that hair follicle analysis may not reveal very recent drug use.

Appellant does not directly make the argument, but her emphasis on evidence of improvements in her life during the months just before trial suggests greater weight should be given that evidence, mandating the conclusion that the evidence in favor of the best interest finding is factually insufficient. See, e.g., In re K.C.M., 4 S.W.3d 392 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). But see In re M.G.D., 108 S.W.3d 508, 513-14 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Such an analysis is not appropriate in this case. Appellant’s long absence from the twins’ lives at a tender age and their bonds with prospective adoptive parents provide support for the trial court’s finding. Further, although there was evidence that appellant’s own prospects for stability had improved before trial, it cannot be said that her rehabilitation was free from doubt. Finally, although the evidence of appellant’s resumption of drug use was controverted, the trial court was not required to disregard it. The law observes a strong presumption that a child’s best interest is usually served by maintaining the parent-child relationship. See In re M.D.S., 1 S.W.3d 190, 197 (Tex.App.Amarillo 1999, no pet.). In this case, evidence was both legally and factually sufficient to permit the trial court, as fact finder, reasonably to form the firm belief or conviction that these young children’s best interest called for termination of that relationship with their mother.

Appellant’s fourth issue is overruled. The judgment of the trial court is affirmed.

      . Unless otherwise indicated, all references to sections are to the Texas Family Code.

      . BIPP is a "batterer’s intervention program” designed to help prevent domestic violence.

      . Cf. Tex.Code Crim. Proc. Ann. art. 1.051(e) (Vernon Supp.2004) (appointed counsel entitled to ten days preparation time).

      . Nor do we express an opinion on appellant’s contention that the trial court was obligated to appoint counsel for her before she requested counsel or demonstrated indigency.

      . Appellant is represented on appeal by the same counsel who represented her by appointment at the termination hearing.

      . Joinder of the Sharps was among the grounds mentioned in appellant’s motion for new trial. Presentation of the objection in that motion, though, did not preserve it for appellate review. See St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 53 (Tex.1998); Hoxie Implement Co. v.

        Baker, 65 S.W.3d 140, 145 (Tex.App.-Amarillo 2001, pet. denied)

      . At the time of the final hearing appellant was twenty-eight years of age.


author: BRIAN QUINN, Justice.

text:
    Lester Murl NIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 07-03-0072-CR.
    Court of Appeals of Texas, Amarillo.
    April 8, 2004.
    Discretionary Review Refused Aug. 31, 2004.
    Artie Aguilar, Law Office of Artie Aguilar, Lubbock, for appellant.
    Ricky B. Smith, District Attorney, Lamesa, for appellee.
    Before QUINN and REAVIS, JJ., and BOYD, S.J.

      . John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon Supp.2004).

   Opinion

BRIAN QUINN, Justice.

Appellant Lester Murl Nixon challenges his conviction for driving while intoxicated (DWI) “with two or more previous convictions for the same offense.” His sole issue involves whether the evidence was legally sufficient to support his conviction. Specifically, appellant contends the State failed to prove that both prior convictions alluded to in the indictment were final. We reverse the judgment.

Background

Appellant was indicted in January 2002 for DWI. Included in the indictment was the allegation that he previously had been convicted of DWI by the County Court of Real County in 1995 (Cause No. 903) and by the County Court of Randall County in January of 1984 (Cause No. 20,900-L). It is the latter offense which underlies the dispute at bar. The parties stipulated that the offense resulting in the January 1984 conviction actually occurred in September of 1983. Furthermore, and as reflected by the judgment that the State submitted into evidence at trial, the trial court suspended the one year sentence levied against appellant in Cause No. 20,900-L and placed him on probation for two years. No evidence was presented at trial illustrating that his probation was ever revoked.

Authority

Statute provides that one commits an offense if he is intoxicated while operating a motor vehicle in a public place. Tex. Pen.Code Ann. § 49.04(a) (Vernon 2003). Though the offense is generally a class B misdemeanor, id. § 49.04(b), it becomes a felony of the third degree “if it is shown ... that the person has previously been convicted ... two times of any other offense relating to the operating of a motor vehicle while intoxicated.... ” Id. § 49.09(b)(2) (Vernon Supp.2004). In other words, statute permits the enhancement of the charge to a felony if the accused was twice finally convicted of DWI before.

Generally, a conviction wherein the defendant’s sentence was suspended and he was placed on probation is not final until probation has been revoked. Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App.1992); Ex parte Murchison, 560 S.W.2d 654, 656 (Tex.Crim.App.1978). And, given that such a conviction is not final, it normally cannot be used for enhancement purposes. Therein lies the heart of the dispute before us. We must determine whether appellant’s conviction in January of 1984 was final for purposes of elevating his latest DWI charge from a class B misdemeanor to a felony of the third degree. Normally, the answer would be an easy one for we would need only apply the general rule described in Langley and Murchison. However, via art. 67011 — 1(h) of the Texas Revised Civil Statutes, the legislature modified the general rule. Through it, the legislature declared that “a conviction for an offense that occurs on or after January 1, 1984, is a final conviction, whether or not the sentence for the conviction is probated.” Act of May 27, 1983, 68th Leg., R.S. ch. 303 § 3, 1983 Tex. Gen. Laws 1574, 1576. Given this and the fact that the offense ultimately resulting in the Randall County conviction occurred in September of 1983 but appellant was not convicted until January of 1984, the question before us is whether art. 67011-1 serves to prevent application here of the general rule mentioned in Langley and Murchison. To resolve it, we must construe whether the phrase “that occurs on or after January 1, 1984” modifies the word “conviction” or “offense.” Appellant contends that it modifies the latter while the State argues that it refers to the former.

When interpreting a statute, we attempt to effectuate the collective intent or purpose of the legislature. Griffith v. State, 116 S.W.3d 782, 785 (Tex.Crim.App.2003). This requires us to interpret an unambiguous statute literally, unless doing so would lead to an absurd result. Id. And, only when a literal reading of the statute leads to an absurd result will we resort to the use of extratextual factors to determine legislative intent. Id. Finally, authority obligates us to assume not only that every word contained in the statute has been used for a purpose but also that each word, phrase, and clause should be given effect. Campbell v. State, 49 S.W.3d 874, 876 (Tex.Crim.App.2001). Application of these rules leads us to but one conclusion.

Article 67011 — 1(h) is not ambiguous and, when literally read, means that the offense must occur after January 1, 1984. This is clear given the legislature’s placement of the phrase “that occurs on or after January 1, 1984” after the word “offense.” Indeed, to read the phrase as referring to “conviction,” as suggested by the State, would not only change the location of the phrase in the statute but also render the word “offense” meaningless. Simply put, there would be no reason to include the term if the date of conviction was all that mattered. Yet, the legislature included the term, and we must give it meaning. Campbell v. State, supra.

So, upon reading the statute literally and giving effect to each word contained in it, we hold that before a probated 1984 conviction can be deemed final under art. 67011-l(h), the offense must occur after January 1, 1984. And, the record discloses that such was not the case viz the Randall County conviction at bar. Though appellant was convicted of the offense in January of 1984, he actually committed it several months earlier, that is, in September of 1983. Consequently, art. 67011 — 1(h) does not apply while the general rule in Langley and Murchison does, and the State could not use the Randall County conviction to elevate the 2001 DWI charge to a felony.

There being no evidence that appellant was twice convicted of DWI before his trial upon the 2001 charge, the verdict of the jury is legally insufficient. Consequently, we reverse the judgment of the trial court and remand for further proceedings. See Ex parte Arnold, 574 S.W.2d 141, 142 (Tex.Crim.App.1978) (instructing the trial court to enter a judgment of conviction for a misdemeanor and remanding for a new punishment hearing).

      . At a pretrial hearing on appellant’s motion to quash the indictment, the trial court received a copy of an order entered in Cause No. 20,900-L. As evinced in that order, the County Court for Randall County set aside the finding of guilt, dismissed the complaint and information, and discharged appellant from probation.

      . This article was subsequently repealed and replaced by § 49.09(d) of the Texas Penal Code.

      . The statute became effective on January 1, 1984.

      . The State’s reliance on Ex parte Serrato, 3 S.W.3d 41 (Tex.Crim.App.1999), Vrba v. State, 69 S.W.3d 713 (Tex.App.-Waco 2002, no pet.) and Williamson v. State, 46 S.W.3d 463 (Tex.App.-Dallas 2001, no pet.) is misplaced. None involved a prior DWI conviction wherein the offense actually occurred before January 1, 1984.

      .Given that the 1984 judgment offered by the State itself revealed that the 1984 conviction was probated, we reject the State’s comment that there was no evidence illustrating the conviction was not final.


text:
    Banks WINN and Felicia Winn, Appellants, v. MARTIN HOMEBUILDERS, INC., Appellee.
    No. 07-03-0031-CV.
    Court of Appeals of Texas, Amarillo.
    April 29, 2004.
    Rehearing Overruled June 23, 2004.

      Donald E. Sample, Beaumont, for appellants.
    C. Thomas Valentine, Daw & Ray, Houston, for appellee.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

Appellants Banks and Felicia Winn appeal a summary judgment in favor of the builder of their residence, appellee Martin Homebuilders, Inc. They present two issues, contending that the trial court erred first in rehearing and granting the motion for summary judgment without adequate notice to appellants that the motion would be reheard; and secondly in granting summary judgment based on limitations. We affirm.

The Winns bought their home from Martin in March 1992, and occupied it at that time. The home was newly constructed, and its construction was complete when the Winns bought it. Within two to three months after moving into the house, the Winns began to notice what they considered to be problems with the construction, first indicated by cracks in their driveway and patio. They also noticed that the Sheetroek was cracking and doors would not close. They notified Martin, whose representative told the Winns the damage was due to normal settling of the house. Martin made repairs to the Sheetroek and filled the crack in the patio. In March 1994 the Winns submitted a claim to Home Owners Warranty Corp. (HOW) under a warranty contract they had purchased. Among other defects, the Winns there referred to a “deep, long and severe crack in concrete on patio” and a one-inch drop of the back door. In August of 1997 the Winns again contacted HOW regarding severe cracking in the Sheetroek, Sheetroek separating from baseboards, separation of a window ledge from the window, water leaks on the window ledge, cracking in mortar and tile, and cabinet, room, and closet doors that would not close.

The Winns filed this suit on September 9, 2001, alleging failure of the foundation of the residence, and claiming damages pursuant to the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA), and for breach of warranty and negligence. After taking the Winns’ depositions, Martin filed a motion for summary judgment asserting that the Winns’ claims were barred by the two-year statutes of limitations associated with the DTPA and negligence causes of action, and the four-year limitation period for the warranty claims. The Winns’ response contended that their time period for bringing suit was governed by Section 16.009 of the Civil Practice & Remedies Code.

The Honorable Robert Walker, visiting judge in the 172nd District Court, presided over the summary judgment hearing. He requested the parties file briefs. After the briefs were filed, the sitting judge, the Honorable Donald Floyd, returned and ruled, denying the motion for summary judgment on August 20, 2002. Martin filed a motion for rehearing on September 13, 2002, requesting the opportunity to present oral argument to Judge Floyd. The record does not contain an order setting a hearing on the motion for rehearing or otherwise provide documentation of the notice of hearing given the parties. In any event, the court held a hearing on September 26, 2002, thirteen days after Martin’s motion for rehearing was filed. The record before us contains no reporter’s record of that hearing, but it is undisputed that appellants appeared at the hearing, and that the court heard arguments on the motion for summary judgment and granted it. The written judgment was signed the same day.

In support of their first issue, the Winns correctly cite Chadderdon v. Blaschke, 988 S.W.2d 387 (Tex.App.-Houston [1st Dist.] 1999, no pet.) for the proposition that Rule of Civil Procedure 166a(e) requires at least 21 days’ notice of the hearing on a motion for summary judgment, regardless how far in advance of the hearing the non-movant receives the motion itself. Id. at 388. Chadderdon and other cases establish the non-movant’s entitlement to 21 days’ notice of the initial hearing on a motion for summary judgment. See, e.g., Lewis v. Blake, 876 S.W.2d 314 (Tex.1994) (per curiam); Birdwell v. Texins Credit Union, 843 S.W.2d 246, 250 (Tex.App.-Texarkana 1992, no writ). But from that proposition, the Winns contend they were entitled to 21 days’ notice “before the motion for summary judgment was heard a second time.” Case law does not support the contention. The trial court’s reconsideration of its ruling denying Martin’s motion did not make necessary a second 21-day notice. Denial of a motion for summary judgment is not a final adjudication, but an interlocutory ruling that may be changed or modified until a final judgment is rendered. See Villages of Greenbriar v. Torres, 874 S.W.2d 259, 262 (Tex.App.-Houston [1st Dist.] 1994, writ denied); see generally 3 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 18:30 (2d ed.2000). A motion for summary judgment previously denied may be granted without a further motion or prior notice to the parties. Rush v. Barrios, 56 S.W.3d 88, 98 (Tex.App.-Houston [14th Dist.] 2001, pet. denied); H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872 (Tex.App.-Corpus Christi 1996, writ denied). The notice received by the Winns before the hearing at which the trial court reconsidered Martin’s motion did not violate any summary judgment notice rule.

The notice provisions of Rule 166a are intended to prevent rendition of summary judgment without the non-movant having full opportunity to respond on the merits of the motion. Williams v. City of Angleton, 724 S.W.2d 414, 417 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.). Martin’s motion for summary judgment was filed June 26, 2002. The Winns filed a response on July 25. It appears a hearing on the motion was held on August 2. The record does not reflect notice of the hearing, but the Winns do not contest Martin’s statement that they received the required 21 days’ notice. Both sides submitted the briefs requested by the visiting judge. The briefs addressed the only ground raised in the Winns’ response to Martin’s motion for summary judgment, that being the Winns’ contention based on Section 16.009 of the Civil Practice & Remedies Code. The record reflects the Winns were afforded, and exercised, full opportunity to respond on the merits of the motion. Their first issue is overruled.

By their second issue the Winns assert summary judgment should not have been granted against them because Martin “did not establish that every exception to the statute of limitations was eliminated.” Martin points out the issue as stated in the Winns’ brief in this court is not the same issue as that presented to the trial court in their response to its motion for summary judgment and the brief they filed at the trial court’s request. We must agree. The Winns argued in the trial court that they were entitled to a period of at least ten years from their purchase of the residence to file suit against Martin, under the provisions of Section 16.009 of the Civil Practice & Remedies Code. In the context of that argument, they referred to their deposition testimony that á representative of Martin told them there was nothing wrong with the construction of their home and the defects they observed were due to natural settling of the foundation. The Winns argued the statements constituted “willful misconduct and concealment in connection [with] the construction.” The Winns’ brief in this court does not cite or make mention of Section 16.009. Instead, citing Al Parker Securities Co. v. Owen, 1 S.W.2d 271, 272 (Tex. Comm’n App.1928, judgm’t adopted) and Johnson v. Buck, 540 S.W.2d 393, 413 (Tex.Civ.App.-Corpus Christi 1976, writ ref'd n.r.e.), they contend Martin’s willful misconduct and concealment raised an exception to the statutes of limitations, and Martin was not entitled to summary judgment because it failed to negate that exception. Issues not expressly presented to the trial court are not to be considered on appeal as grounds for reversal of a summary judgment. Tex.R. Civ. P. 166a(c); see Casso v. Brand, 776 S.W.2d 551, 553 (Tex.1989) (all theories in support of a summary judgment, as well as all opposing issues, must be presented in writing to the trial court). Our consideration of the theory the Winns’ now argue in their second issue is precluded because it was not expressly presented to the trial court.

Moreover, even if the Winns had properly preserved a contention that Martin fraudulently concealed actionable conduct so as to toll limitations, the contention would not call for reversal of Martin’s summary judgment. As noted, the Winns’ pleadings asserted claims based on negligence, deceptive trade practices and breach of warranty. The applicable statutes of limitations are two and four years.

Fraudulent concealment is based on the.doctrine of equitable estoppel, and where applicable, estops a defendant from relying on the statute of limitations as an affirmative defense to the plaintiffs claim. Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex.1983); Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 439 (Tex.App.-Fort Worth 1997, pet. denied). The elements of fraudulent concealment are: (1) the existence of the underlying tort; (2) the defendant’s knowledge of the tort; (3) the defendant’s use of deception to conceal the tort; and (4) the plaintiffs reasonable reb-anee on the deception. Mitchell Energy Corp., 958 S.W.2d at 439. For purposes of this discussion, we will assume that the summary judgment evidence raised an issue of material fact on each of those elements. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 749 (Tex.1999) (in summary judgment proceeding, party asserting fraudulent concealment as affirmative defense to limitations must raise issue and come forward with summary judgment evidence raising fact issue on each element).

Fraudulent concealment tolls or suspends the running of limitations because the defendant has concealed from the plaintiff facts necessary for the plaintiff to know that he has a cause of action against the defendant. DiGrazia v. Old, 900 S.W.2d 499, 504 (Tex.App.-Texarkana 1995, no writ). The estoppel effect ends, and the statute of limitations begins to run when a plaintiff has knowledge of facts, conditions or circumstances that would cause a reasonable person to make an inquiry, which, if pursued, would lead to discovery of the concealed cause of action, because such knowledge is the equivalent for limitations purposes of knowledge of the cause of action itself. Bayou Bend Towers Council of Co-Owners v. Manhattan Constr. Co., 866 S.W.2d 740, 746 (Tex.App.-Houston [14th Dist.] 1993, writ denied); Stephens v. James, 673 S.W.2d 299, 303 (Tex.App.-Dallas 1984, writ ref'd n.r.e.).

Banks Winn testified that his first indication the foundation was failing occurred prior to 1995. He testified that in March of 1994 he sent a letter to Martin and HOW requesting Martin to repair, among other things, the crack in the concrete on the patio and the one-inch drop in the back door. He testified:

Q: If you had to tell me what gave you your first indication that the foundation was bad, what would it be?
A: My first indication was when the hairline split was on the patio, you know, when it kept growing, and then we start having trouble with some of the windows and the door drop.
Q: Okay.
A: And then he [Mr. Martin] came out there and told us that it was just the house settling. And then after they done that minor repair, it kept having problems and then that’s when I figured we had a problem with the patio. I’m going to say with the foundation.
Q: With the foundation?
A: Yes
Q: And all that happened before 1995?
A: Before '95.

Banks Winn’s deposition testimony also contains this exchange:

Q: [By counsel for the Winns] All right. Now, when Mr. Martin was out there telling you that it was settling, was he just telling you that’s normal to expect that?
A: He said that was normal to expect a house to have some settling when you first get in it.
Q: [By counsel for Martin] When did you start to fear that your house was experiencing settlement that was not normal?
A: When the door dropped some, and that shouldn’t happen. And then when Mr. Martin would refuse to come out. We called him quite a few times, and he seemed to avoid the questions. I figured we had a problem at the house.
Q. That was before 1995?
A: Yes, sir.
Felicia Winn’s testimony was similar:
Q: At what time prior to August 20th of 1997 did you, yourself, not you and your husband together, but you personally become concerned about the foundation of the house?
A: In 1994.
Q: You thought that it was failing?
A: Yes.

Viewing the summary judgment evidence in the Winns’ favor, their testimony nonetheless conclusively established that, no later than 1995, they were aware of damages and defects to their home that, despite Martin’s representations to the contrary, could not be explained by “normal” settling of the foundation. Even assuming Martin’s statements amounted to fraudulent concealment of a cause of action against the homebuilder, the Winns’ knowledge of those facts and circumstances was sufficient to put a reasonable person on inquiry, and thus sufficient to end any tolling of limitations due to the estoppel effect of the statements. See Bayou Bend, 866 S.W.2d at 746-47. Neither of the cases the Winns cite require a different conclusion. The Winns’ second issue is overruled. The trial court’s judgment is affirmed.

      . The Winns purchased the HOW homeowner’s warranty through the real estate agent. They received no payment from the company issuing the warranty. Banks Winn testified he believed HOW was no longer in business.

      . Tex. Bus. & Com.Code Ann. §§ 17.41-.506, .55-63 (Vernon 2002).

      .The Winns’ brief on appeal states that they received notice from Martin that the court would hear ‘‘Defendant’s Motion for ReHearing on its Motion for Summary Judgment ... on Thursday, September 26, 2002.” The record does not reflect that notice, but Martin does not dispute the Winns’ account.

      . They also argued that the ten-year period was further extended by virtue of written claims submitted to Martin in 1997 and 1998. Cf. Tex. Civ. Prac. & Rem.Code Ann. § 16.009(c) (Vernon 2002). Martin has contended in the trial court and on appeal that the ten-year statute of repose provided by Section 16.009 of the Civil Practice & Remedies Code has no application at all to this case. The issues presented on appeal do not require us to address its application.

      . Cf. Tex. Civ. Prac. & Rem.Code Ann. § 16.009(e)(3) (Vernon 2002), providing that the statute does not bar an action based on wilful misconduct or fraudulent concealment in connection with the performance of the construction or repair.

      . Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (two-year statute applicable to claims based on negligence); Tex. Civ. Prac. & Rem.Code Ann. § 16.051 (Vernon 1997); Rickman v. Watel, 565 S.W.2d 101, 102 (Tex.Civ.App.-Waco, 1978, writ ref’d n.r.e.) (claims based on an alleged breach of implied warranty must be brought within four years of the injury); Tex. Bus. & Com.Code Ann. § 17.565 (cause of action under the DTPA must be brought within two years of the injury or within two years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice). The Winns do not contend that limitations was extended under the discovery rule. See generally HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex.1998).


text:
    In the Interest of an Unborn Child.
    No. 07-03-0187-CV.
    Court of Appeals of Texas, Amarillo.
    May 11, 2004.
    Rehearing Overruled June 17, 2004.
    Wes Wester, Mallett and Wester Law Offices, Amarillo, for Appellant.
    Michael J. Sharpee, Mayfield, Crutcher & Sharpee, L.L.P., Amarillo, for Appellee.
    Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
   OPINION

DON H. REAVIS, Justice.

In Sims v. Adoption Alliance, 922 S.W.2d 213, 214 (Tex.App.—San Antonio 1996, writ denied), after expressing its concern for the conflicting interests of the parties affected by its decision, recognizing its duty to render its opinion based on the clear language of a statute, the court held that an affidavit of relinquishment per section 106.103(a) of the Texas Family Code, signed by the mother 26 hours after the birth of her child was invalid. Now, we are presented with a question regarding the validity of an affidavit of waiver of interest in an unborn child per section 161.106 of the Code signed by appellant G.W.B. By this appeal, G.W.B. seeks reversal of the judgment of the trial court declaring that the waiver of an interest in child which he signed on September 30, 2002, complied with section 161.106 and that the waiver is irrevocable. By his first issue, G.W.B. contends the trial court erred in finding that appellees A.M.B., J.B. and V.B., individually and as next friends of A.M.B. (hereafter A.M.B.) established by clear and convincing evidence that the affidavit complied with section 161.106. By his second issue, he contends the trial court erred in finding that the affidavit was executed voluntarily. We reverse and render.

Standard of Review

Findings of fact in a bench trial have the same force as a jury’s verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.). However, the findings are not conclusive when a complete statement of facts appears in the record if the contrary is established as a matter of law or if there is no evidence to support the findings. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.—Houston [14th Dist.] 1985), writ ref'd n.r.e., 699 S.W.2d 199 (Tex.1985) (per curiam). Findings of fact are reviewable for factual and legal sufficiency under the same standards that are applied in reviewing evidence supporting a jury’s answer. Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.—Houston [14th Dist.] 1990, no writ); see also W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 ST. MARY’S L.J. 1045, 1145 (1993).

Our review of trial court conclusions of law is de novo. In re Humphreys, 880 S.W.2d 402, 403 (Tex.1994), cert. denied, 513 U.S. 964, 115 S.Ct. 427, 130 L.Ed.2d 340 (1994). However, as noted above, although findings of fact are reviewable for legal and factual sufficiency, an attack on the sufficiency of the evidence must be directed at specific findings of fact rather than at the judgment as a whole. In re Interest of M.W., 959 S.W.2d 661, 664 (Tex.App.-Tyler 1997, writ denied).

By his first issue, G.W.B. contends the trial court erred in finding that A.M.B. established by clear and convincing evidence that the affidavit of waiver of interest in child complied with section 161.106. As sub-issues, he argues that the uncon-troverted evidence established he was not provided with a copy of the affidavit at the time he executed it as required by section 161.106(i), and the Gladney Center, an adoption facility, was not named managing conservator of the child. Therefore, the affidavit was subject to revocation. We agree.

Our decision is based on a de novo review of the trial court’s conclusions of law that the affidavit signed by G.W.B. complies with section 161.106 and is irrevocable. Thus, we limit our review of the evidence necessary to develop that analysis. Although A.M.B. learned she was pregnant and informed her parents • on September 17, 2002, G.W.B., however, was never informed by A.M.B. of the pregnancy. Instead, on September 30, 2002, G.W.B., a high school student, was escorted from class by the assistant principal to his office. Also in the assistant principal’s office were two uniformed liaison officers and a school secretary. G.W.B. was informed by the assistant principal that a “lady in Fort Worth had some information to give him.” The assistant principal telephoned a paralegal at the Gladney Center and handed the phone to G.W.B. In a three to five minute telephone conversation, the paralegal informed him that A.M.B. was pregnant, he was the probable father, and he needed to sign an affidavit of waiver of interest in the child that had been faxed to the assistant principal’s office from the Gladney Center. Following the telephone conversation, the assistant principal and uniformed officers provided unsolicited advice of the consequences of him signing the affidavit. After approximately ten to fifteen minutes, G.W.B. signed the affidavit and was excused to return to class. G.W.B. was not provided with a copy of the affidavit at that time.

The following day the principal of the high school spoke to G.W.B. in his office after which G.W.B. was asked to notify his mother of the events of the previous day. After learning of the situation, G.W.B.⅛ mother called the paralegal at the Gladney Center and informed her that she wanted to revoke the affidavit and also requested that a copy be sent to her.

On October 30, 2002, G.W.B. commenced the underlying action by filing a petition to establish parentage of the child naming A.M.B. as the mother. A.M.B.’s parents and the Gladney Center were also named as parties. After G.W.B. and A.M.B. filed requests for declaratory relief and upon the severance of the parentage issue from the validity of the affidavit of waiver of interest, the court proceeded to consider the request for declaratory relief by an evidentiary hearing. By its judgment, among other things, without making any specific declarations, the judgment recites that the court finds (emphasis added)

• the Waiver of Interest in Child as defined in § 161.106 of the Texas Family Code, which was signed by G.W.B. on September 30, 2002 complies with § 161.106 of the Texas Family Code;
• such waiver was executed voluntarily by G.W.B.; and
• such waiver is irrevocable.

Even though the order does not make a declaration, determination of law, or expressly grant any relief, because no particular form is prescribed for a declaration of rights in a declaratory judgment action, see 46933, Inc. v. Z & B Enterprises, Inc. 899 S.W.2d 800, 808 (Tex.App.-Amarillo 1995, writ denied), and matters of statutory construction are questions of law for the court, see Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989), we will construe the word “finds” to constitute a declaration based upon facts found from the evidence.

Upon request per Rule 296 of the Texas Rules of Civil Procedure, the trial court signed findings of fact and conclusions of law. However, the court did not designate which of the 42 statements were findings of fact or conclusions of law. Moreover, even where the trial court designates some matters findings of fact and others to be conclusions of law, the designation is not controlling on appeal. See Ray v. Farmers State Bank of Hart, 576 S.W.2d 607, 608, n. 1 (Tex.1979); McAshan v. Cavitt, 149 Tex. 147, 229 S.W.2d 1016, 1020 (1950). Because G.W.B.’s execution of the affidavit before two witnesses and its verification were not disputed, and the questions of its validity and revocability per section 161.106 are questions of law, we will conduct a de novo review. See Hydrocarbon Mgt. v. Tracker Exploration, 861 S.W.2d 427, 431 (Tex.App.-Amarillo 1993, no writ). Also, because the judgment and the findings/conclusions of the trial court found that the affidavit complied with section 161.106, we will conduct our review based on the provisions of that section.

We begin our analysis' by recognizing that the natural right existing between parents and their children is of constitutional dimension and termination proceedings are strictly scrutinized. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). Also, where, as here the relevant statute is clear and unambiguous, rules of statutory construction are inappropriate and the statute should be given its plain meaning. Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983); Sims v. Adoption Alliance, 922 S.W.2d 213, 215 (Tex.App.-San Antonio 1996, writ denied). Chapter 161 of the Family Code contains the legislative authority and procedures for proceedings to terminate the parent-child relationship. As material to our re-' view, section 161.106, entitled Affidavit of Waiver of Interest in Child, authorizes “revocable” or “irrevocable” affidavits for purposes of proceedings under chapter 161.

Irrevocable Affidavit

Subsection (f) provides that an affidavit is irrevocable if it designates the Department of Protective and Regulatory Services or a licensed child-placing agency managing conservator of the child. Because the affidavit signed by G.W.B. did not designate the Department of Protective and Regulatory Services nor the Glad-ney Center or any other licensed child-placing agency to serve as managing conservator of the child, the affidavit which G.W.B. signed' does not satisfy the requirements of (f) and is not irrevocable under the subsection.

Revocable Affidavit

Under the last sentence of subsection (f) any other affidavit under section 161.106 is revocable unless it expressly “provides that it is irrevocable for a stated period not to exceed 60 days after the date of execution.” Here, however, G.W.B.’s affidavit provided that it was “final and irrevocable,” contrary to the 60 day maximum period allowed for an irrevocable affidavit.

In addition, subsection (h) also addresses revocable affidavits and provides:

(h) An affidavit under this section that contains a waiver that is revocable must contain:
(1) a statement in boldfaced type concerning the right of the person who executed the affidavit to revoke the affidavit only if the revocation is made before the 11th day after the date the affidavit is executed; and
(2) the name and address of the person to whom the revocation is to be delivered.

(Emphasis added). Notwithstanding this provision, the affidavit signed by G.W.B. did not contain any reference to revocation before the 11th day following the execution of affidavit or state the name or address of the person to whom notice of revocation should be delivered.

Under section 161.106(i), a copy of the affidavit shall be provided to the affiant when it is signed. However, it is undisputed that G.W.B. was not provided with a copy of the affidavit at the time it was executed. Counsel for A.M.B. argues that G.W.B. was furnished a copy of the affidavit the day after it was signed. Even if the 11 day period for revocation did not commence to run until October 1, 2002, a question we do not decide, nevertheless the affidavit was defective because it did not inform G.W.B. of the 11 day deadline for revocation required under subsection (h).

As used in section 161.106(h) and (i), the terms must and shall have particular legal meaning. According to section 311.016 of the Code Construction Act, the term shall imposes a duty, and the term must creates or recognizes a condition precedent. Tex. Gov’t Code Ann. Annotated § 311.016(1) and (2) (Vernon 1998). Considering that parental rights are of constitutional dimension, that the proceeding is to be strictly scrutinized, Holick, 685 S.W.2d at 20, and applying the plain meaning of section 161.106, we sustain G.W.B.’s first issue and his two sub-issues and hold that the affidavit he signed did not comply with section 161.106 of the Code and was not irrevocable under section 161.106. Our disposition of G.W.B.’s first issue pretermits consideration of his second issue.

Accordingly, the judgment of the trial court is reversed and judgment is rendered that the affidavit signed September 30, 2002, by G.W.B. is invalid because it does not comply with section 161.106. Tex. R.App. P. 43.2(c).

      . According to Rule 299a of the Texas Rules of Civil Procedure, findings of fact should be separately filed. See also 4 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice 20:8 (2d ed.2001), suggesting that findings and conclusions should be separately filed, divided between the factual propositions and the legal results deemed to flow therefrom.

      . In its findings/conclusions, the trial court found that A.M.B. had established by clear and convincing evidence that the affidavit of waiver of interest in child complied with section 161.106; by (26) that she had established by clear and convincing evidence that the affidavit complied with section 161.106 and (27) that under section 161.106 the affidavit was irrevocable.

      . The trial court found that G.W.B. was furnished with a copy of the affidavit the day after he signed the affidavit.