







Affirmed and Opinion filed February 27, 2003














Affirmed and
Opinion filed February 27, 2003.
 
 
In The
 
Fourteenth Court of Appeals
_______________
 
NO. 14-02-00389-CV
______________
 
 
IN THE
INTEREST OF J.I.T.P
 
 
_____________________________________________
 
On Appeal from
the 313th District Court
Harris County, Texas
Trial Court
Cause No. 01-00690J
_____________________________________________
 
O P I N I O N
            Heather T. and Tim P., the parents
of J.I.T.P., appeal the termination of their parental rights in four issues,
contending the evidence was legally and factually insufficient to terminate
their parental rights; the evidence was legally and factually insufficient to
prove such termination was in J.I.T.P.’s best
interest; and the trial court’s failure to file findings of fact and
conclusions of law requires reversal.  We
affirm.
 




                                                               Background
            Heather gave birth to J.I.T.P., a
boy, on November
 23, 2000.  On January 26, 2001, the Texas
Department of Protective and Regulatory Services (the Department) removed
J.I.T.P. from his parents’ custody and placed him in foster care.  Initially, the Department established a
service plan to reunify the family. 
However, when Heather and Tim failed to complete the services and
maintain a stable home and employment, the Department sought to terminate their
parental rights.  Trial was held in March
2002, when J.I.T.P. was sixteen months old. 
In its judgment, the trial court found that the parents had engaged in
conduct or knowingly placed J.I.T.P. with persons who engaged in conduct which
endangered him.  Further, the trial court
found that termination of parental rights was in the J.I.T.P.’s
best interest. 
                                                       Standard
of Review
            A parent’s parental rights can be
involuntarily terminated only by a showing of clear and convincing evidence,
not just a preponderance of the evidence. 
In re G.M., 596 S.W.2d 846,
847 (Tex. 1980); Robinson v. Dep’t of Protective &
Regulatory Servs., 89 S.W.3d 679, 685 (Tex. App.—Houston [1st
Dist.] 2002, no pet.).  Clear and
convincing evidence is the 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 proved. 
Tex. Fam.
Code Ann. § 101.007 (Vernon 2002); In
re C.H., 89 S.W.3d 17, 25–26 (Tex.
2002).  
            When reviewing legal sufficiency of
the evidence, we look at all the evidence in the light most favorable to the
finding to determine whether the fact finder could have formed a firm belief or
conviction that its finding was true.  In re J.F.C., 46 Tex. Sup. Ct.
J. 328, 2002 WL 31890913, at *6 (Dec. 31, 2002).  To
appropriately defer to the fact finder’s conclusions, we must assume that the
fact finder resolved disputed facts in favor of its finding, if a reasonable
fact finder could do so.  Id.  We disregard all evidence that a reasonable
fact finder could have disbelieved or found to have been incredible.  Id.  
            When reviewing factual sufficiency
of the evidence, we determine whether the fact finder could reasonably form a
firm belief or conviction based on the evidence about the truth of the State’s
allegations.  Id.  “We consider whether disputed evidence is
such that a reasonable fact finder could not have resolved that disputed
evidence in favor of its finding.”  In re U.P., No. 14-02-00126-CV, slip op.
at 8, 2003 WL 152346, at *5 (Tex. App.—Houston [14th
Dist.] Jan. 23, 2003, no pet.
h.).  “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.”  In re
J.F.C., 2002 WL 31890913, at *6.
                                                                  Discussion
            To terminate parental rights, a
trial court must find by clear and convincing evidence that (1) termination is
in the child’s best interest and (2) the parent committed one or more of the
acts specifically named in the Family Code as grounds for termination.  Tex. Fam. Code Ann. § 161.001 (Vernon 2002).  In this case, the trial court found that
termination was in J.I.T.P.’s best interest and that
the parents “engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being of the
child.”  Tex. Fam. Code Ann. §
161.001(1)(E).
                    A.  Termination of Parental
Rights under Section 161.001(1)(E)
            In their first and second issues,
Heather and Tim contend there is legally and factually insufficient evidence
that they endangered J.I.T.P. and failed to comply with court-ordered service
plans for J.I.T.P.’s reunification with them.  
            “Endanger,” under section 161.001(1)(E),
means to jeopardize or expose the child to loss or injury.  Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex.
1987).  Endangerment can be exhibited
through actions and omissions.  See Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990); In re D.T., 34 S.W.3d 625, 634 (Tex.
App.—Fort Worth 2000, pet. denied). 
Further, the endangering acts need not be directed at or cause actual
injury to the child.  In re W.A.B., 979 S.W.2d 804, 807 (Tex.
App.—Houston [14th Dist.] 1998, pet. denied). 
Acts of endangerment may precede the child’s birth.  See In
re M.D.S., 1 S.W.3d 190, 198–99 (Tex. App.—Amarillo 1999, no pet.). 
            The Department argues that the trial
court’s endangerment finding is primarily supported by evidence of family
violence.  The testimony at trial
revealed that J.I.T.P.’s parents had a history of
violence in their three-year relationship. 
When J.I.T.P. was a newborn, Tim accidentally hit him during a fight
with Heather.  At trial, Heather agreed
that such behavior endangers a child. 
Additionally, although both parents testified that the fighting between
them had lessened or abated since the Department removed J.I.T.P. from their
care, their last physical altercation took place just a few weeks before
trial.  Tim “backhanded” Heather in the
face, and she retaliated by scratching him across his face.  Because her mouth was “busted” and she was
four months pregnant, Heather went to the emergency room by ambulance.  Later in her testimony, Heather admitted that
she and Tim were still fighting, but the domestic violence was no longer as bad
as it had been in the past.  Both parents
stated they were working on resolving disagreements without violence.  Tim testified that he and Heather fought
eight or nine times in the last year.  He
admitted in his testimony that it is not in a child’s best interest to live
with caregivers who hurt each other, unless the caregivers can “get it worked
out.”  Further, both parents were asked
to attend anger management classes, but neither complied.  Tim testified that three months before trial
(almost a year after J.I.T.P. was removed from their custody), he reapplied for
classes, but no one returned his call.
            A parent’s abusive or violent
conduct can produce a home environment that endangers a child’s
well-being.  In re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ
denied).  Domestic violence, want of self
control, and propensity for violence may be considered as evidence of
endangerment.  See In re B.J.B., 546 S.W.2d 674, 677 (Tex. App.—Texarkana 1977,
writ ref’d n.r.e.)
(considering father’s lack of self control and violent propensities); see also Sylvia M. v. Dallas County Welfare Unit, 771 S.W.2d 198, 204 (Tex. App.—Dallas 1989, no writ)
(considering “volatile and chaotic” marriage, altercation during pregnancy, and
mother’s repeated reconciliation with abusive spouse).  Thus, the trial court could have considered
the domestic violence, especially the blow that hit J.I.T.P. and the parents’
altercation during Heather’s pregnancy, as evidence of endangerment to J.I.T.P.
            Additionally, the trial court could
have considered Heather’s mental state as endangering J.I.T.P.’s
well-being.  Heather testified that she
has recurrent depression, borderline personality disorder, post-traumatic
stress disorder, ADHD, and partial complex seizures.  She relinquished parental rights to her first
child four years earlier because she was suicidal, though she denied suicidal
thoughts in the ensuing years.  She
testified, however, that her therapist wants to address issues carefully
because he is scared she might hurt herself. 
She testified that she thought about hurting herself a few days before
trial, and she explained that she wanted to physically hurt a body part so the
pain in her heart would subside.  Heather
further testified that when she is with J.I.T.P., she does not think about
hurting herself.  She testified, “I
haven’t sliced or diced or anything in three or four years.”  Additionally, she compared her symptoms to
those of Andrea Yates, a woman in a highly publicized case who killed her
children.  She then distinguished herself
from Andrea Yates, “I don’t believe in spanking kids, much less murdering
them.”  Lastly, Heather testified that,
until four months before trial, she was not compliant with her medications.  She explained that failure to take her
medications could result in her death. 
“[W]hen a parent’s mental state allows [her] to engage in conduct which
endangers the physical or emotional well-being of the child, that conduct has
bearing on the advisability of terminating the parent’s rights.”  In re
C.D., 664 S.W.2d 851, 853 (Tex. App.—Fort Worth 1984, no writ) (considering
mother’s schizophrenia and resulting suicidal thoughts, hospitalizations, and
violence).  Thus, the trial court could
have considered the mother’s desire to hurt herself and her history of
noncompliance with her medication schedule as factors endangering J.I.T.P.’s well-being.
            After considering the entire record,
we hold that there is legally and factually sufficient evidence to support a
finding that J.I.T.P.’s parents engaged in conduct
that endangered his physical or emotional well-being.  Because there is sufficient evidence of
endangerment, we need not address the parents’ arguments regarding their
compliance with court-ordered service plans. 
See Tex. Fam. Code Ann. § 161.001(1)
(violation of only one subsection is necessary; subsection E is endangerment,
and subsection O is failure to comply with court orders necessary to obtain
return of the child).  Accordingly, we
overrule parents’ issues one and two.
                                               Best
Interest of the Child
            In their third issue, the parents
contend there is legally and factually insufficient evidence that termination
of their parental rights was in J.I.T.P.’s best
interest.
            There is a strong presumption that
preserving the parent-child relationship is in the best interest of a
child.  See Tex. Fam.
Code Ann. §§ 153.131(b), 153.191, & 153.252  (Vernon 2002).  It is the Department’s burden to rebut this
presumption.  Hall v. Harris County Child Welfare Unit, 533 S.W.2d 121, 122–23
(Tex. Civ. App.—Houston [14th Dist.] 1976, no
writ).  The Texas Supreme Court has
compiled factors to consider when determining the best interest of a
child.  Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex.
1976).  These factors include (1) the
child’s desires; (2) the child’s emotional and physical needs now and in the
future; (3) the emotional and physical danger to the child now and in the
future; (4) the parental abilities of the individuals seeking custody; (5) the
programs available to assist these individuals to promote the best interest of
the child; (6) the plans for the child by these individuals or by the agency
seeking custody; (7) the stability of the home or proposed placement; (8) the
acts or omissions of the parent which may indicate that the existing
parent-child relationship is not proper; and (9) any excuse for the acts or
omissions of the parent.  Id.  Additionally, the Family Code lists thirteen
similar factors for determining the parents’ willingness and ability to provide
a safe environment.  Tex. Fam. Code Ann.
§ 263.307 (Vernon 2002).
            In deciding J.I.T.P.’s
best interest, the trial court could have considered the following:  (1) physical and emotional danger to
J.I.T.P.; (2) parental inabilities; (3) the parents’ unwillingness to accept
and complete counseling services; (4) the parents’ unwillingness and inability
to effect positive changes within a reasonable time; and (5) stability of the
proposed homes for J.I.T.P.  
            First, the Department contends that
physical and emotional danger to J.I.T.P. is the most prominent factor in this
case, given the history of domestic violence between the parents.  Such abuse is a factor under Holley and section 263.307(b)(7).  The Department argues it is more difficult to
protect a child when both parents are violent. 
It notes Heather’s testimony that domestic violence has always been a
part of her life and that she believes domestic violence is a personal matter,
not the court’s concern.  The parents
counter that J.I.T.P. was never the intended victim of their domestic
violence.  However, J.I.T.P. was hit by a
misdirected blow during one fight.  See Tex.
Fam. Code Ann. § 263.307(b)(12)(E) (protection
from repeated exposure to violence although violence may not be directed at the
child).  Further, the parents’ fight
shortly before trial, despite Heather’s pregnancy, shows that they are mindless
of their children’s safety when angry with each other.
            Second, the Department urges that
neither parent has the ability to care for J.I.T.P. in a stable
environment.  See Holley, 544 S.W.2d at 372; Tex.
Fam. Code Ann. § 263.307(b)(12).  Heather still desires to hurt herself, has
only recently complied with her medication schedule, and spent four days in a
psychiatric hospital shortly before trial. 
Additionally, she admitted there was much she did not understand about
children.  See Tex. Fam.
Code Ann. § 263.307(b)(12)(F) (an understanding of child’s needs and
capabilities).  Further, neither parent
has consistently maintained a safe physical home environment.  Id. §
263.307(b)(12)(D).  At the time of trial,
Heather was living for two weeks with her parents.  Tim moved to his parents’ house the Friday
before trial.  Although Heather testified
that she and J.I.T.P. would stay with her parents until “we found a place to
go,” Heather’s parents are disinclined to assist with J.I.T.P.  See
id. § 263.307(b)(13) (whether
extended family is available as support system).  Since J.I.T.P. was removed from their
custody, Heather and Tim have lived in at least five different places,
including in a drug-infested trailer park and in a home the city condemned
despite the parents’ efforts to fix it. 
The Child Advocate testified that they also called her from various
hotels, where they stayed for a night or two. 
In her opinion, there was no indication that either parent has ever had
a stable home.  Lastly, neither parent
has worked consistently.  In her most
recent job, Heather worked as a waitress for only three days before she fainted
with a threatened miscarriage. 
Previously, she had sporadically worked as a waitress or a school
aide.  Her main source of income is her
Social Security check, on which she and Tim live.  Tim recently began working as a security
guard.  Previously, he worked only odd-jobs,
such as landscaping and painting.  
            Next, the trial court could have
considered the parents’ unwillingness to accept and complete counseling
services and their unwillingness and inability to effect positive changes
within a reasonable time.  See id. § 263.307(b)(10)–(11); see also Holley, 544 S.W.2d at 372
(listing as a factor programs available to assist in the best interest of the
child).  The evidence reveals that the
Department offered the parents drug assessments, psychological evaluations, anger
management classes, parenting classes, and couples’ counseling.  In the fourteen months since J.I.T.P.’s removal, Heather and Tim completed only the drug
assessments and psychological evaluations. 
Additionally, Heather was to undergo “intensive” therapy.  Instead, she saw her therapist only three
times, waiting until a trial date was set to begin such therapy.  Heather refused to attend parenting classes
arranged by the Department because she thought she did not need them.  Shortly before trial, Heather began
parenting/infant care classes at a local hospital in anticipation of her third
child’s birth.  Tim testified that he
originally started parenting classes, but “got kicked out” for missing them.  The caseworker testified that Tim asked to
enroll in such classes again after the trial date had been set.  Because the parents failed to attend the
first classes paid for by the Department, the caseworker told Tim they would
need to pay for services on their own. 
The caseworker characterized Heather and Tim as uncooperative.  Both parents admitted that though they were
warned they might lose J.I.T.P. if they did not complete the services, they
chose not to attend.  The Child Advocate
testified that she believed neither parent would change.
            Fifth, the trial court could have
considered the stability of the proposed homes in deciding J.I.T.P.’s
best interest.  Holley, 544 S.W.2d at 372. 
Heather had no definite plans for J.I.T.P., though she hoped her parents
would help her care for him and eventually help pay tuition for a Christian
school.  Heather testified that she
planned to leave for Oklahoma when trial
ended. When asked his plans for J.I.T.P., Tim responded, “Getting another place
to live and getting him whatever he needs.” 
The evidence also showed that J.I.T.P. had been living with his fourth
foster family for eight or nine months. 
He had his own room in their well-kept house.  He regarded the foster parents and their
sixteen-year-old son as his family, and the Child Advocate testified that the
foster parents interacted wonderfully with him. 
The foster mother testified that they wanted to adopt him.
            The parents testified that they
observed bruises on J.I.T.P.  They
believe the foster family abuses him. 
They further argue that no evidence was offered regarding several of the
Holley factors, such as the child’s
desires and whether the parents could meet his physical and emotional
needs.  However, these factors are not
exhaustive, nor is proof required on all nine to support the trial court’s finding.  In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002); In re U.P., 2003 WL 152346, at *6.  Additionally, the parents strongly protest
that the Department refused to help them, failed to pay for services, and
failed to visit them in their homes. 
However, the evidence shows that the Department did arrange and pay for
such services, but the parents failed to attend.  When the parents sought a second round of
services after a trial date was set, the Department gave them information on where
to find the classes.  Further, the Child
Advocate visited the home in which the parents resided for the longest amount
of time; she found it unfit for a child.
            Lastly, the parents contend that
many of the factors in section 263.307 weighed in their favor or were not
supported by any evidence.  For instance,
no evidence showed that sixteen-month-old J.I.T.P. had physical or emotional
vulnerabilities; had been subject to another out-of-home placement; had been
actually harmed by his parents; or was fearful of Heather and Tim.  Heather and Tim argue that they were very
willing to accept services, after initial reluctance, and to cooperate with the
Department.  They urge that no evidence
shows they could not provide J.I.T.P. care, nutrition, guidance, and protection.  We do not believe, however, that the State
must prove all thirteen factors in section 263.307 to determine the best
interest of the child.  Cf. In re C.H., 89 S.W.3d at 27.
            Further, in reviewing the trial
court’s decision for factual sufficiency, we have considered evidence of the parents’
love of and desire to raise J.I.T.P. and their belated attempts to better their
domestic violence and parenting abilities. 
Nonetheless, we hold that the trial court’s determination of J.I.T.P.’s best interest is supported by clear and
convincing proof that is legally and factually sufficient.  Accordingly, we overrule issue three.
                                         Findings of Fact and Conclusions of Law
            In their final issue, the parents
contend that the trial court reversibly erred in failing to file findings of
fact and conclusions of law.  If findings
of fact and conclusions of law are properly requested, the trial court must
prepare them.  Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); see Tex.
R. Civ. P. 296.  The trial court’s failure to do so is
presumed harmful 

 class=Section3>

unless
the record affirmatively shows no harm resulted to the requesting party.  Cherne Indus., Inc. v.
Magallanes, 763 S.W.2d 768, 772 (Tex. 1989).
            Because Tim failed to properly
request findings and conclusions, he has waived this issue.  Curtis
v. Comm’n for Lawyer Discipline, 20 S.W.3d 227,
232 (Tex. App.—Houston [14th
Dist.] 2001, no pet.) (waiver on appeal due to failure to file notice of past
due findings and conclusions).  To
determine whether Heather was harmed, we consider whether the failure to file
findings and conclusions prevented her from properly presenting her case on
appeal.  See Tenery, 932 S.W.2d at 30.  Harm may exist when the circumstances of a
case require an appellant to guess the reason the court ruled as it did.  Beard
v. Beard, 49 S.W.3d 40, 52 (Tex. App.—Waco 2001, pet. denied).  Under the circumstances of this case, we hold
that Heather has not been prevented from properly presenting her case on
appeal.  Because there is a complete
reporter’s record, Heather was able to fully brief, and we were able to fully
review, whether the judgment is supported by legally and factually sufficient
evidence.  See Hatteberg v. Hatteberg,
933 S.W.2d 522, 529 (Tex. App.—Houston [1st Dist.] 1994, no writ) (when the
record includes a full reporter’s record, a trial court’s findings of fact are
not conclusive in appellate review of evidentiary sufficiency).[1]  Accordingly, we overrule issue four.
            Having overruled the parents’ four
issues, we affirm the trial court’s judgment. 
 
                                                                                    
                                                                        /s/        Charles W. Seymore
                                                                                    Justice
 
Judgment
rendered and Opinion filed February
 27, 2003.
Panel
consists of Justices Anderson, Seymore, and Guzman.
 




            [1]  See, e.g.,
Stubbs v. Stubbs,715 S.W. 2d. 373,374 (Tex App.—Houston [1st Dist.]
1986, no writ) (no harm where record was adequate for review of evidentiary
sufficiency)


