                                   NO. 07-09-0019-CV

                               IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                    MARCH 19, 2009

                         ______________________________


                IN THE INTEREST OF C.H., T.H. AND S.H., CHILDREN

                       _________________________________

          FROM THE 395TH DISTRICT COURT OF WILLIAMSON COUNTY;

              NO. 07-1763-F395; HON. MICHAEL JERGINS, PRESIDING

                         _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               ORDER ABATING APPEAL


      This is an accelerated appeal from an order terminating the parental rights of both

parents to their three children. Both parents timely filed statements of points and notices

of appeal. The clerk’s record was filed on January 28, 2009, and the reporter’s record was

filed on February 26. Also on February 26, the mother of the children filed a motion

requesting abatement of the appeal and remand to the trial court for entry of findings of

fact and conclusions of law.
       The mother informs us she timely filed a request for findings of fact and conclusions

of law pursuant to Rule of Civil Procedure 296. See Tex. R. Civ. P. 296. She also informs

us she timely filed a notice of past due findings of fact and conclusions of law pursuant to

Rule 297. See Tex. R. Civ. P. 297. The clerk’s record supports the mother’s statements.

The trial court did not file findings or conclusions, and the mother now argues the appeal

should be abated and remanded for entry of findings of fact and conclusions of law.


       The termination order recites the trial court found four grounds for termination of the

mother’s parental rights, and found termination was in the best interest of the children.

See Tex. Fam. Code Ann. § 161.001 (Vernon 2008) (listing grounds for involuntary

termination).     Two of the grounds are those described in §§ 161.001(1)(D) and

161.001(1)(E). The termination order contains statements that the trial court found by clear

and convincing evidence that the mother “knowingly placed or knowingly allowed the

children to remain in conditions or surroundings which endanger the physical or emotional

well-being of the children” and that she “engaged in conduct or knowingly placed the

children with persons who engaged in conduct which endangers the physical or emotional

well-being of the children[.]” In support of her motion to abate, the mother cites Juan A__

v. Dallas County Child Welfare, 733 S.W.2d 559 (Tex.Civ.App.–Dallas 1986, no writ); W__

H__ v. Moore, 589 S.W.2d 830 (Tex.Civ.App.–Dallas 1979, no writ), and our opinion in In

re S__ H__, 548 S.W.2d 804 (Tex.Civ.App.–Amarillo 1977, no writ), for the proposition that

findings under subsections (D) and (E) of § 161.001(1)1 worded in the alternative are



       1
           In all the cited cases, the former termination statute, § 15.02 of the Family Code,
applied.

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improper because they do not state which of the alternatives occurred. See, e.g., In re S__

H__, 548 S.W.2d at 806 (stating a finding the parents engaged in endangering conduct or

knowingly placed the children with persons who engaged in such conduct is not a finding

that either occurred). By its use of such alternative wording, the mother asserts, the trial

court’s order does not state the facts on which the trial court relied to support its

termination order.


       It is not clear to us that In re S__ H__, Juan A__, and W__ H__ reflect current

requirements concerning the findings necessary to support an order terminating parental

rights. See Cervantes-Peterson v. Texas Dep’t of Family & Protective Services, 221

S.W.3d 244, 252 (Tex.App.–Houston [1st Dist.] 2006, no pet.) (distinguishing findings

required by rules of civil procedure and those required by Family Code § 161.206); In re

M.M.M., 229 S.W.3d 821, 823 (Tex.App.–Fort Worth 2007, no pet.) (best interest finding);

In re A.I.G., 135 S.W.3d 687, 694 (Tex.App.–San Antonio 2003, no pet.); cf. Texas Dep’t

of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (for jury charge purposes,

controlling question was whether parent-child relationship should be terminated).


       Nevertheless, we will grant the mother’s motion here, for two reasons. First,

appellee, the Texas Department of Family and Protective Services, has filed a response

stating it does not oppose the motion. Second, this case was transferred to us from the

Austin Court of Appeals District. A panel of the Austin court, as recently as 1998, cited

Juan A__ and In re S__ H__ in support of a statement that an endangering conduct finding

was “improperly phrased in the alternative.” Baetz v. Texas Dep’t of Protective and



                                             3
Regulatory Servs., No. 03-97-00222-CV, 1998 WL 849394 *1 n.2 (Tex.App.–Austin

Dec.10, 1998, no pet.). See Tex. R. App. P. 41.3.


       Accordingly, we abate the appeal and remand the cause to the 395th District Court

of Williamson County, Texas. We direct the judge of the trial court to execute findings of

fact and conclusions of law. Because the appeal is accelerated, we also direct the judge

to file the findings and conclusions with the trial court clerk on or before April 8, 2009, and

further direct the trial court clerk to prepare and file a supplemental clerk’s record,

containing the findings and conclusions, with the clerk of this Court immediately on their

filing with the trial court clerk. On the filing with this Court of the supplemental clerk’s

record containing the findings and conclusions, the appeal will be reinstated.


       It is so ordered.


                                                   Per Curiam




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