IN THE

TENTH COURT OF APPEALS

No. 10-08-00041-CV

IN THE INTEREST OF H.W., MINOR CHILD,

From the 413th District Court

Johnson County, Texas

Trial Court No. D200605788

MEMORANDUM OPINION

Appellant J.W. appeals from a final order terminating his parental rights to his 

daughter, H.W. In doing so, he challenges the legal and factual sufficiency of the 

evidence supporting the statutory grounds for termination, but he does not contest the 

decision that termination was in the best interest of the child. He also argues that the 

trial court failed to file findings of fact and conclusions of law. We will affirm the order 

of the trial court.

Procedural Background 

The petition of the Texas Department of Family and Protective Services

(Department) alleged that J.W. committed several predicate acts for termination under 
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Texas Family Code section 161.001(1), and that termination was in the best interest of 

H.W. See TEX. FAM. CODE ANN. § 161.001 (Vernon Supp. 2007). 

The Department first removed H.W. from J.W.’s care on July 25, 2006. The court 

appointed the Department temporary managing conservator and approved a family 

service plan outlining the Department’s requirements for reunification of J.W. and H.W.

After several permanency hearings in which J.W. showed no progress on his family 

service plan, the trial court ordered J.W. to mediation so that he and H.W.’s mother, 

L.F., could arrange for adoption of H.W. by L.F.’s husband. J.W. failed to attend.

A non-jury trial to involuntarily terminate J.W.’s parental rights was held on 

January 18, 2008. J.W. failed to attend but was represented by counsel. At that trial, the 

court appointed L.F. as sole permanent managing conservator and terminated J.W.’s 

parental rights.

Standard of Review 

Termination of parental rights is a drastic remedy and is of such weight and 

gravity that due process requires the petitioner to justify termination by “clear and 

convincing evidence.” Spangler v. Texas Dept. of Prot. & Reg. Servs., 962 S.W.2d 253, 256 

(Tex. App.—Waco 1998, no pet.). 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.

In a proceeding to terminate the parent-child relationship brought under section 

161.001 of the Texas Family Code, the movant must establish by clear and convincing 

evidence two elements: (1) one or more acts or omissions enumerated under subsection 
In the Interest of H.W. Page 3

(1) of section 161.001 (termed a predicate violation); and (2) that termination is in the 

best interest of the child. TEX. FAM. CODE ANN. § 161.001 (Vernon Supp. 2007); Swate v. 

Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied). The factfinder must 

find that both elements are established by clear and convincing evidence, and proof of 

one element does not relieve the petitioner of the burden of proving the other. Holley v. 

Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766.

Both legal and factual sufficiency reviews in termination cases must take into 

consideration whether the evidence is such that a factfinder could reasonably form a 

firm belief or conviction about the truth of the matter on which the petitioner bears the 

burden of proof. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal 

sufficiency review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual 

sufficiency review).

In a legal sufficiency review, a court should 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. 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 that the factfinder resolved disputed 

facts in favor of its finding if a reasonable factfinder could do so. A 

corollary to this requirement is that a court should disregard all evidence 

that a reasonable factfinder could have disbelieved or found to have been 

incredible. This does not mean that a court must disregard all evidence 

that does not support the finding. Disregarding undisputed facts that do 

not support the finding could skew the analysis of whether there is clear 

and convincing evidence.

If, after conducting its legal sufficiency review of the record 

evidence, a court determines that no reasonable factfinder could form a 

firm belief or conviction that the matter that must be proven is true, then 

that court must conclude that the evidence is legally insufficient.
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J.F.C., 96 S.W.3d at 266.

In a factual sufficiency review, a court of appeals must give due consideration to 

evidence that the factfinder could reasonably have found to be clear and convincing. Id.

[T]he inquiry must be “whether the evidence is such that a factfinder 

could reasonably form a firm belief or conviction about the truth of the 

State’s allegations.” A court of appeals should consider whether disputed 

evidence is such that a reasonable factfinder could not have resolved that 

disputed evidence in favor of its finding. 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. A court of appeals should detail in its opinion why 

it has concluded that a reasonable factfinder could not have credited 

disputed evidence in favor of the finding.

Id. at 266-67 (footnotes and citations omitted). We view the evidence in a neutral light 

when reviewing for factual sufficiency.

Only one predicate act under section 161.001(1) is necessary to support a 

judgment of termination when there is also a finding that termination is in the child's 

best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

Grounds for Termination 

The petition for termination alleged and the court found that J.W. knowingly 

placed or knowingly allowed H.W. to remain in conditions or surroundings that 

endangered her physical or emotional well-being and that he engaged in conduct or 

knowingly placed H.W. with persons who engaged in conduct that endangered her

physical or emotional well-being. TEX. FAM. CODE ANN. § 161.001(1)(D) (Vernon Supp. 

2007).
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Section 161.001(1)(D) of the Texas Family Code states that the court may order 

termination of the parent-child relationship if the court finds by clear and convincing 

evidence that the parent has knowingly placed or knowingly allowed the child to 

remain in conditions or surroundings which endanger the physical or emotional wellbeing of the child. Id. § 161.001(1)(D). “Endanger” means to expose to loss or injury or 

to jeopardize. Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). 

However, it is not necessary that the child actually suffer injury. Id. Although this 

provision addresses the child’s surroundings rather than the parent’s conduct, conduct 

by a parent or other resident of a child’s home can produce an environment that 

endangers the physical or emotional well-being of a child. In re C.L.C., 119 S.W.3d 382, 

392 (Tex. App.—Tyler 2003, no pet.).

Ninfa Torres, a Department supervisor, testified that she became involved with 

H.W.’s case when the Department received allegations of neglectful supervision and 

drug use. The Department sought emergency removal of H.W., who had a history of 

being in foster care, when a domestic violence incident over drugs occurred at J.W.’s 

home. During that incident, J.W. got high on cocaine and chased his wife (H.W.’s 

stepmother) around with a stick.

When J.W. was interviewed about the allegations, he tested positive for cocaine 

and admitted that he frequently left H.W. with his wife, who used methamphetamines 

and had issues with depression. Torres testified that this was particularly dangerous 

because H.W. was also diagnosed with clinical depression and self-harm behavior, 

which causes her to pull out her hair and pick at the skin on her stomach and arms. She 
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also testified that H.W. has a heart condition, due to her dependency on cocaine at birth, 

and that J.W. was not seeking appropriate medical attention for her. Torres reported 

that on visitation to H.W.’s home, which did not have electricity, H.W.’s appearance 

was dirty, her hair was unkempt, and the home did not have a place for her to sleep.

Dianne Ames, H.W.’s caseworker, outlined the family service plan created for 

J.W. to regain custody of H.W. For a year, the Department asked J.W. to demonstrate 

an ability to maintain a drug-free lifestyle, which included finding drug-free housing 

and taking random drug tests. J.W. was also asked to provide payment stubs indicating 

steady employment, utility receipts, and an updated address within 72 hours of any 

relocation. Finally, he was asked to participate in individual counseling, anger 

management, parenting skills classes, and to refrain from criminal behavior. Ames 

testified that at the time of trial, J.W. had not provided the Department with proof of 

completion of any of the Department’s requests. Ames tried to get in contact with J.W.

by telephone and with letters on numerous occasions, but he never responded. She also 

testified that of the eight court proceedings involving J.W.’s parental rights, he had only 

attended two. J.W. did not attend trial, and his counsel did not present any evidence 

contradicting the Department’s evidence.

Using the appropriate standards of review for legal and factual sufficiency, we 

conclude that "the evidence is such that a factfinder could reasonably form a firm belief 

or conviction" that J.W. knowingly placed or knowingly allowed H.W. to remain in 

conditions or surroundings that endangered her physical or emotional well-being and 

that J.W. engaged in conduct or knowingly placed H.W. with persons who engaged in 
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conduct that endangered her physical or emotional well-being. J.F.C., 96 S.W.3d at 266. 

The evidence is thus legally and factually sufficient to support the trial court’s findings 

on the endangerment grounds. We overrule J.W.’s first issue.

Remaining Grounds for Termination 

The trial court’s findings of fact contain affirmative findings on four predicate 

grounds for termination of J.W.’s parental rights. Because we have found the evidence 

legally and factually sufficient to support the finding that J.W. engaged in conduct that 

endangered H.W.’s physical and emotional well-being, we need not address the 

sufficiency of the evidence to support the other three predicate grounds. See In re 

T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet. denied).

For termination of the parent-child relationship, the factfinder must make an 

affirmative finding: (1) on at least one predicate ground for termination; and (2) that 

termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001. 

Because J.W. does not challenge the trial court’s best interest finding in his appellant’s 

brief, we do not address the sufficiency of the evidence to support the court’s bestinterest finding. See In re D.M., 244 S.W.3d 397, 403 (Tex. App.—Waco 2007, no pet.) 

(Reyna, J., concurring) (“It is well-settled that this Court cannot address an issue in a 

civil appeal which has not been raised as an issue or point of error in the appealing 

party’s brief.”).

Findings of Fact and Conclusions of Law

In his second issue, J.W. complains that the trial court failed to file findings of 

fact and conclusions of law. He claims that he timely requested findings of fact and 
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conclusions of law under Civil Procedure rules 296 and 297. Under Rule 296, a party 

may request the court to make written findings of fact and conclusions of law within 

twenty days after the judgment is signed. TEX. R. CIV. P. 296. However, the record

reflects that J.W. filed a Notice of Past Due Findings of Fact and Conclusions of Law on 

February 27, 2008, forty-one days after the termination order was signed.

The clerk’s record does not reflect that J.W. ever filed an initial request for 

findings of fact and conclusions of law. Because J.W. failed to formally request findings 

of fact and conclusions of law within twenty days of the trial court’s judgment, his 

notice of past due findings of fact and conclusions of law is untimely, and he has failed 

to preserve his claim regarding lack of such findings for appellate review. Strangel v. 

Perkins, 87 S.W.3d 706, 709 (Tex. App.—Dallas 2002, no pet.); DeMello v. NBC BankPerrin Beitel, 762 S.W.2d 379, 381 (Tex. App.—San Antonio 1988, no pet.). We overrule 

J.W.’s second issue.

Conclusion

Because we have found the evidence sufficient to support at least one predicate 

act under section 161.001(1) and J.W. failed to challenge the court’s best interest finding 

and make a timely request for findings of fact and conclusions of law, the trial court’s 

order is affirmed.

BILL VANCE

Justice
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Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed 

Opinion delivered and filed October 29, 2008

[CV06]