1 John T. Boyd, Chi ef Ju stice (Ret.), Sevent h Court of Appeals, s itting by

assignment . Tex. Gov ’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003). NO. 07-02-0371 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E MARC H 17, 2003

______________________________ IN THE INTE REST OF A MBE R L. CAS TILLO AND AL BERT E DDIE CA STILLO

_________________________________ FROM THE 320 TH DISTRICT COURT OF POTTER COUN TY; NO. 54,157-D; H ONORAB LE DON E MERS ON, JUDGE

_______________________________ Before JOHNSON, C.J., REAVIS, J., and BOYD, S.J. 1
OPINION
Presen ting two p oints of error, ap pellant Ed die Cast illo challenges th e trial court judgm entte rmi na ti ng hi s pa re nt al ri gh ts to hi s two children, A m ber and A lbertCastillo. In his points, appellant argues thatthe termination judgment must be set aside because th ere2 Th e Departm ent also sought the term ination of Christina’s parental rights based

upon her voluntary relinquishment of tho se rights. She is not a party to this appeal. 2 is no clear and convincing evidence, or in the alternative, insufficient clear and convincing evidence, justifying the trial court’s findings that: 1) appellant know ingly placed or allowed the ch i l dr en to re ma in in condi tions or surroundings that endangered the phys ical or emot ional well-being of the children; and 2) he engaged in conduct or knowingly placed the children with persons w ho engaged in conduct that endan g ered the physical or emot ional wel l- be in g o f th e ch il dr en . F or re as on s we s ta te be lo w, we affirmthe judgm ent of the trial court.
The Te xa s D ep ar tme nt of Protective and Regulatory Services (the Departm ent) soughtterm ination of appellant’s parental rights based upon the 1995 death of another of his children, Eddie Castillo, Jr. In 1997, appellant and his wife Christina agreed to the appointment

of the Departm ent as sole m anaging cons e rvator of Am ber and Albert. Appellant was conv icted of m urdering his son Eddie, Jr. and was sentenced to 99 years penal confinemen t. We affir med that conviction on direct appeal. See Castillo v. State, No. 07- 97-0047- CR (Tex . App. –Am arillo 1998, no pet.).
In February 2000, the Departm ent filed a petition seeking terminati on of appel lant’s parental rights based upon his murder conviction. 2 In its petition, the Departm ent alleged four grounds for term ination under Chapter 161 of the Fam ily Code. Tex. Fam . Code Ann. § 161.001(1) (Vernon 2002). Thosegrounds we re: 1) knowingly placing or allowing h is children to r

em ain in conditions which endangered their physical or em otional well-being,3

§ 161.001(1)(D); 2) engaging in conduct or placing the children with people w ho engaged in conduct endangering the physical or em otion al well-being of the children, § 161.001 (1)(E); 3) that appellant had been convicted for being criminally responsible for the death or serious injury of achild, specifically murder, § 161 .00 1(1 )(L ); a nd 4 ) kn ow ingly engaging in criminal conduct that resulted in his imprisonm ent and inability to care for the children for not less than tw o years , § 161. 001(1)(Q)

. After a two-day

bench trial beginning July 31, 2002, the tria l court rendered a judgm entterm inating appellant’s parental rights to both children. In its judgm ent, the trial court recited it found by clear and con vin cing evid ence th at a ppe llant had know ingly placed or allowed the c hild ren to rem ain in conditions or surroundings that endangered the ir physical or emot ional well-being and engaged in conduct, or placed the children with persons whoengaged in conduct, which endange red their well-bei ng. It also found that termination w

as in the best interest of thechildren. No findings of fact or conc lusions of law were requested or filed.
The nature of appel lant’s challenges requires an exam ination of the trial evidence. The Departm ent’s m ain witness w as its case worker, David Freem an. Through Freeman, the Dep art m ent

intr odu ced thej udg m ent

con victin g appell ant of murder and this cour t’s opinion affirm ing that conviction. Freem an also te stified tha t Albert had ex pre sse d a desire to rem ain w it h his fos ter paren ts and to be ad opted by them . The trial court sustained a hearsay obj ection to testim ony concerning Am ber’s w ish in that regard. The4

evidence was t hat the children had not had any contact with appellant forthepre viou s s ix years.
Freeman also averred that the Departm ent had conducted ho me studies on all but one of app ellan t’s

rela tive s an d did not find any of themsuitable to care for the children. The remai ning rela tive, Minerva Gonzalez, w as not considered suitable because of a previous investigation of abuse concerning another m ember of her h ousehold. W hen
cross-exam ined, Freeman admitted th at in that investigation, the Departm ent had failed to determ ine whether the abus e or neglect had occurred. The De partme nt’s only ot he r witness was a fingerprint exam iner, who m atched a print taken fromappellant during the trial to that

with the prior j udgm ent con victing himof m urder. Appellant testified and adm itted causing the death of Edd ie, Jr., but averred that the death w as t he r

esu lt of an a cci den t. He s aid he was continuing to contest the conviction byseeking habeas corpus relief in feder al co urt . A ppe llant ack now ledg ed t hat

if h is federal court effort w

as not succes sfu l, he would not be e ligibl e for parole until his childr en were in their 30's. How ever, he said his sister, Minerva, w as willing and ableto care for the children. Minerva had four children of her own and, he thought, she w as a good mot he r t o t he m.
Minerva testified that she possessed theability and had the willingness to care for the chil dre n. S he a ver red theDep art m ent had m adean in it ial visit to her hom e and
re co mme nded som e changes to the hous e, which she m ade. However, she said, the5

Departm entnever returned and term inated its consideration of her for pla cement because of the report to the Department about her. Her family’s onl y other co ntact w ith th e Departm entwas a report that her niece was an unfit person, which the Departm ent found
waswithout basis. W hen cross-exa mined, M inerva admitted the Departm ent investigated
a report of physical ab use b y he r hu sba nd a gain st o ne of th eir c hildr en b ut, shesaid , it closed that investigation on thebas is t hat it could not determ ine the truth of the allegation. She a lso said she had seen appellant’s children at church, but their foster p arents discouraged the children from s peaking with appellant’s fam ily mem bers.
Atthe conclusion of the hearing, the trial court entered the term ination order giving rise to t his appea l. As we havenoted, in its order, the trial court recited that it found by clear and convincing evidence that appellant had know ingl y pl aced, or allowed the children to remain, in conditions endangering their well-being (subsection D of § 161.001(1)), and that he engaged in, or placed the children with persons w ho engaged in conduct endang ering thei r well-bei ng (subsecti on (E)). The tri al court made no specif ic fact findings concerning the other term ination allegati ons m ade by the Departm ent. Appellant
now challenges the legal and factual sufficiency of the evidence supporting each of t he grounds for term ination found by the trial court.
Termination requires the Dep artm ent to a llege and prove one of the statutory grounds fo r t ha t a ct io n b y cl ea r a nd con vi nc in g e vi de nc e. Te x. Fam. Code Ann. § 161. 001 (Vernon 2002); Richardson v. Green , 677 S .W.2d 497, 499 (Tex. 1 984). This heightened6

standa rd is require d by the fundam ental constitutional rights affected in a termination proceeding. Holi

ck v. Smi

th , 685 S.W.2d 18, 20 (Tex. 1985). The c lear and convincing standa rd is met when the proof is of such a measure or degree as to produ ce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. In the I

nterest of G.M. , 596 S.W.2d 846, 847 (Tex. 1980).
To d ete rm ine whet her

the re islegally suff

icient eviden ce, all the record evidence and infer ences therefrommu st be viewed in a light m ost favorable to the findings

. Formosa Plastics Corp., USA v. Presidio E ngineers & Contractors, Inc. , 960 S.W.2d 41, 48 (T ex. 1998); In the Interest of L. S., 748 S.W.2d 571, 572 (Tex. Ap p.–Am arillo 1988, no writ). An yth ing m oretha n a s cint illa of evidence is legally sufficient to support the findi ngs. Formosa Plastics , 960 S.W.2d at 48.
In consider ing appel lant’s factual sufficie ncychallenge, our supremecourt, In the Interest of C.H. , 8 9 S. W .3 d 1 7 ( Te x. 2002), recently resolved the split previously existing among the courts of appeal asto the standard to be used in determ ining factual sufficie ncy chall enges. Itexplicated that in cases s uch as this in which the b urden is to establish a right to judgm ent by “clear and convincing evidence” rather than the preponderance of the evidence sta nda rd t rad ition ally use d in civil cases, “the appellate standard for reviewing termination find ingsis w het her theevid ence is suc h th at afac tfin der cou ld reasona bly form
a firm belief or conviction about the truth of the State’ s allegations .” Id. at 25. That standa rd foc use s on w het her a re aso nab le factfinder could form a firm co nviction or belief7

w hile retaining the deference that an appellate court m ust have for the fac tfi nder’ s role. Id. at 26.
The Department argues that a co urt m ay ter minate parental rights if it finds “the parents engaged in any of the specific grounds enum erat ed in th e Family Code,” and termination is in the best i nterest of the child. How

ever, term ination proceedings ar e governed by the rules of civil procedure in the sam e m anner as other civ il proceedi ngs. Texas Dept. of Human Services v. E.B. , 802 S.W.2d 647, 649 (Tex. 1990). Those rules require a party seeking relie f to plea d w ith s uff

icien t sp ecif

icity togivefair

notice to those concerned of the claims asserted. SeeTex. R. Civ. P. 47. A trial court m ay not grant greater reli ef than requeste d by a party. Tex. R. Civ. P. 301. In a termination proceeding, these rules prohibit a trial court from term inating a per son’sparenta l rights on astatutory ground not pled by the Departm ent.
As we havenoted, in its judgm ent, the trial court recited that it found the Departm ent established subsections (D) (relating to conditions) and (E) (relating to cond uct ) of Fam ily Code section 161.001(1) b y clear and con vincin g evidence. It di d not make any express findings as to the other grounds al leged by the Department. Because of the trial court’s recitation, both parti es’ briefs on ap peal addr ess the suffici ency of the evidence supporting those grounds for term ination.
Howeve r, becaus e term ination may be aff irmed on any ground set out in section 161.001(1) that wa s properly pled and pr ov ed , to ge th er wit h a fi nd in g o f b es t i nt er es t, we8

mus t also consider the other grounds ass ert ed b y th e De par tm ent . I t isthegen era l rule that when findings of fact and conclusions of law are not requested or filed, a reviewing court presum es the trial court m ade all findings necessary to support the j udgme nt. Worford v. Stamper

, 801 S .W.2d 108, 109 (Tex. 1 990). Where, as h ere, a re port er’ s record is included in the appellate reco rd, implied findings may be challenged for legal and/or factual insufficiency the sam e as jury or trial court fact findings. See Roberson v. Robinso n , 768 S. W .2d 280, 281 (Tex . 1989). Texas Rule of Civil Procedure 299a , adopted in 1990, expressly prohibits the inclusion of findings of fact in a judgm ent. It also provides tha t if the re isa conflict between f indings recited in a judgm entin violation of the rul e and separ ately filed findings of fact, the separately filed findings of fact govern. If there are no findings of fact, a jud gm ent w ill be upheld on an y legal theo ry that has su pport in the evidence. Worford , 801 S.W.2d at 109.
Several courts have hel d Ru le 299a re quires any findings of fact set out in a judgm ent be disregarded. See, e.g., Frommer v. Frommer , 9 81 S.W .2 d 8 11 , 8 14 (T ex. App.–Houston [ 1 stDist.] 1998, pet. dism ’d); Sutherland v. Cobern, 843 S.W.2d 127, 137 n.7 (Tex. Ap p.–Texarkana 1992, writ denied). I n Hill v. Hill, 9 71 S.W .2 d 1 53 (T ex. Ap p.– Am arillo1 998, no pet.), we had occasion to consider th e effect of find ings of fact contained in a judgm ent decree. At issue in Hill was whether findi ngs of fac t and conclusions of law

con tain ed in a j udg m ent cou ld support a claim o n appeal, even though the trial court made s eparate find ings at the request of a party. See i d. at 155-56. Although the trial court had m ade find ings of fact, it failed to m ake any specific findings9

concerning t he se parate and com munity es tates of the litigants, but m erely referred the parties to the findings contained in the judgm ent. We hel d that the finding s in the judgm entcou ld begive n ef fec t be cau se n o on e co m plain ed of th e er ror , th e j udg m ent its elf confirmed the property was the husband’s separate prop erty, and the j udgme nt did not conflict with any of theform al findings in the judgm ent. See also K ondos Entertai

nment, Inc. v. Qui

nney Elec., Inc. , 948 S .W.2d 820,826 (Te x. A pp.–S an Antonio 1997), reversed by Quinney Elec. v. Kondos Ent

ertainment, Inc., 988 S.W.2d 212 (Tex. 1999) (discussion of “legislative hi story” of Rule 299a in dissenting opinion). In this case, i n which there w ere no sep ara te f

indin gs of fa ct r

equ ested o r m ade , th e fa ct t hat the re w erein com ple te findings in the judgm ent, as we have noted, does not for eclose our oblig ation to add ress the other grounds pled bythe Departm ent and wh ether the record supports t he term ination on any of the grounds p led by the Departm ent.
The un disputed evidence of appellant’s conviction for the m urder of one of hi s children is sufficient to support an implied finding by the trial court under subsection L of the term ination statute. Tex. Fam . Code Ann. § 1 61. 001 (1) (L)(V ern on 2 002 ). T his evidence, in addition to Alber t’s de sire to rem ain with his foster parents, and the fact that appellant had not seen thechildren for the previous six years, is suf ficient to sustain the trial court finding that term ination was in the best i nterest of each chi ld. The evi dence was legally sufficient to support the trial court’s judgm ent.10

The un disputed evid ence th at a ppe llant had bee n co nvic

ted of t he m urd er o f his child is f act ually sufficient to sustain the term ination. W ith regard to appellant’s continuing efforts to ove rturn his conviction, Subsection L does not required a retrial of the conviction, itis sufficient that the conviction has becom e final. The mere factthat appellant denies his guilt is not sufficient to require reversal of the trial court’s judgm ent. Although appellant presented ev idence that the children m ight be placed with a relative, it was the t rial judge’s duty as the trier of fact to resolve issues of credibi lity. Undert he standard by w hich we review his finding, we cannot say he erred in hi s resoluti on of those issue s. Accordingly, appellant’s points are overruled and the j udgme nt of the trial cou rt is affirmed.
John T. Boyd Senior Justi ce