Affirm and Opinion Filed August 31, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00340-CV
IN THE INTEREST OF A.E.J., L.S.J., AND D.M.J., CHILDREN
On Appeal from the 301st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-17-19493
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Molberg, and Justice Nowell
Opinion by Justice Molberg
Father challenges the legal and factual sufficiency of the evidence supporting
a divorce decree which terminated his parental rights to three children, and also
contends the trial court abused its discretion in failing to appoint an amicus attorney
or attorney ad litem in connection with the termination suit. We affirm the trial
court’s judgment.
BACKGROUND
Father and mother have three children, A.E.J., L.S.J., and D.M.J. (collectively
“father’s children”), who at the time of trial were approximately ten, eight, and five
years old. Mother also has an older daughter, Z.W., who was five or six years old
when father and mother married and began living together, and seventeen at the time
of trial.1
When Z.W. was fourteen, mother noticed changes in father’s behavior,
including staying up late at night, during which time father claimed he was searching
for a job on a computer. Believing father was unfaithful, mother secretly installed
an application on his cell phone that monitored how and where his phone was used.
Using software connected to the application, mother viewed photos on father’s
phone that he had taken of Z.W.’s genitalia while Z.W. was asleep. To obtain the
photos of Z.W.’s genitals, father had to have undressed Z.W. while she slept. Mother
was able to identify Z.W. as the subject of the photos because of a blanket and Z.W.’s
clothing visible in the photos, and she knew father took the photos because she could
see his hand in some of the photos, and the photos were on his phone. The app also
disclosed sexually explicit internet searches made by father between August and
September 2016 specifically related to child pornography, and sex between a father
and a daughter and a step-father and a step-daughter. Mother saved the photos and
the internet search history on a thumb drive.
1
Because Z.W. is not father’s child, her interests are not in issue.
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At trial, mother introduced a copy of the spyware report she had printed,
which included copies of the photos of Z.W and the printed browser history from
father’s phone.
When mother confronted father about her discoveries, father apologized,
admitted to a lapse in judgment, and although father also claimed he had never
touched Z.W., agreed he needed help. Mother demanded he leave the home and she
filed for divorce. Initially, the parties agreed father could remain in the home during
the day, but would leave at night. One night shortly after the parties reached this
agreement, in late September 2016, father refused to leave the house and mother
called the police. Although father left the house before the police arrived, mother
told the police about the photos father had taken and delivered a thumb drive with
thirty-five sexually explicit photos, as well as “selfies” also from father’s phone, to
the police the next day.
The Glen Heights Police Department referred indecency and possession of
child pornography charges to the Dallas County District Attorney. After the district
attorney opened a criminal case, father was arrested.2 Mother testified that during
the criminal investigation, Z.W. was interviewed by the Children’s Advocacy Center
and shown the photos taken of her. Learning about the photos “devastated” Z.W.,
2
CPS also opened an investigation, but our record does not disclose the disposition of that matter.
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and she threw up when leaving the interview. The criminal charges against father
were later dismissed without prejudice.3
Once, while father and mother were separated, father called his father-in-law
to ask where mother and the children were. At trial, father-in-law said at the time of
the call he did not know why the parties had separated and asked father what had
happened. Father-in-law testified father admitted that he had taken inappropriate
photographs of Z.W.
Mother also testified about and introduced documentary evidence
demonstrating her completion and transmission of the forms necessary for father to
have supervised visits with the children, but she asserted father had failed to
complete the same forms. Father admitted he had not had any visitation with the
children, but he testified he had not been contacted with instructions to complete the
required paperwork.
Mother also established that despite temporary orders requiring father to pay
$368 in monthly child support and $150 per month for medical insurance
commencing April 2019, father had not paid any child support. Mother testified she
was employed full-time, and she introduced evidence showing medical insurance
coverage for all of the children through her employment. Mother described her
3
The police report, introduced into evidence by mother, reflects the dates, manner, and reason for several
instances the thumb drive was accessed while in police’s custody. A report by a computer forensic examiner
also included in our record suggests the thumb drive should have been copied rather than accessed directly.
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flexible work hours, which generally required her to leave home at approximately
7 a.m. and allowed her to return home by 3 p.m., which in turn allowed her to
transport her children to and from school.
Father claimed mother’s contentions about his conduct, admissions, and any
agreement that he would sleep outside of the house were fabricated. Father asserted
mother was having an affair and had contracted a sexually transmitted disease, which
prompted him to sleep outside the house. After the criminal charges against him
were dismissed, father reported mother to the FBI, alleging her possession of the
photographs of Z.W. was illegal possession of child pornography, which father
asserted was evidence manufactured by mother. Father also filed a complaint with
the State Bar of Texas against mother’s attorney regarding “misconduct” in using
manufactured evidence. Father further testified that although he had been
unemployed at the time the photographs of Z.W. were taken, at the time of trial, he
was employed and generally worked weekdays, 8 a.m. though 6 p.m., with additional
occasional overtime on evenings and weekends.
The trial court ordered a child custody evaluation, and appointed E. Justin
Ezeoha to prepare the report.4 According to her interview with the custody evaluator
4
Mr. Ezeoha was not called as a witness, but at trial the court took judicial notice of his report. Although
facts included in documents which are judicially noticed are generally not evidence, custody evaluations—
which are the equivalent of social studies— and the facts upon which they rely, are evidence the trial court
and we may consider. Green v. Remling, 608 S.W.2d 905, 909 (Tex. 1980) (trial court may consider
conclusory findings and conclusions in social study); In Interest of B.H.W., No. 05-15-00841-CV, 2017
WL 2492612, at *8 (Tex. App.—Dallas June 9, 2017, pet. denied) (mem. op.).
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appointed by the trial court, Z.W. recognized father’s hand in the photos. She also
recalled one evening in August 2016, when father had given her pills he said were
to relax her muscles after an athletic tryout at school, and Z.W. recalled that she fell
asleep after taking the pills.
The custody evaluator concluded that although it was possible mother had
fabricated the photographs, mother’s claims were supported by other information.
For instance, as the custody evaluator observed, in early September after mother
claimed she discovered the photos, she printed information regarding meeting times
and locations for Sex Addicts Anonymous meetings,5 which was unnecessary unless
she was truthful about the photographs. Likewise, in the same early September
period, mother consulted a spiritual advisor about how to deal with her discovery of
the photographs and father’s actions. Mr. Ezeoha reported mother had followed the
spiritual advisor’s advice to call the police, and provided copies of her texts with the
spiritual advisor to him.
In his report, Mr. Ezeoha observed what would also have been obvious to the
trial court as the factfinder: the photos had to have been taken by either mother or
father, as no evidence suggested any other adult had access to Z.W. while she was
home sleeping. Likewise, Mr. Ezeoha also recognized Z.W. had unquestionably
been violated, and other female children in the home required protection, but
5
The printed pages were attached to Mr. Ezeoha’s report.
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nonetheless he recommended the court appoint mother managing conservator,
appoint father possessory conservator, and if the court credited the allegations
against father regarding photographing Z.W., grant father only supervised visits.
Father sought “custody” of his children.6 In the final decree of divorce entered
following a bench trial, the court found clear and convincing evidence that father
had engaged in conduct that endangered the emotional and physical well-being of
the children and determined that terminating father’s parental rights to all of father’s
children was in the children’s best interest. At father’s request, the trial court also
filed Findings of Fact and Conclusions of Law (FFCL) in which it determined
appointment of an ad litem attorney for the children was unnecessary and made
numerous subsidiary factual findings relating to father’s conduct, but no specific
findings relating to the ultimate issues, namely the predicate ground for termination
of the father-children relationship and the determination of the best interest of the
children. Father filed a motion for new trial and requested additional or amended
findings of fact and conclusions of law. Both motions were denied. In two issues,
father challenges the judgment.
6
Father was pro se until after the final decree was entered. Neither his answer nor his arguments or
testimony during trial specified whether he was requesting designation as managing conservator or
possessory conservator.
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DISCUSSION
A. The burden of proof and standard of review
When the movant provides clear and convincing evidence that a parent has
committed one predicate act prohibited by section 161.001(1) of the family code and
termination is in the best interest of the child, parental rights are appropriately
terminated. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In re A.V., 113 S.W.3d
355, 362 (Tex. 2003); TEX. FAM. CODE § 161.001(1), (2). Clear and convincing
evidence means that “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 § 101.007; In re K.L.B., No. 05-01-01924-CV,
2002 WL 31388776, at *1 (Tex. App.—Dallas Oct. 24, 2002, no pet.) (mem. op.).
The heightened burden of proof informs the standard we utilize in reviewing
the trial court’s decision. In reviewing termination findings, we determine whether
“the evidence is such that a factfinder could reasonably form a firm belief or
conviction about the truth of the . . . [movant’s] allegations.” In re C.H., 89 S.W.3d
17, 25 (Tex. 2002). In determining whether the evidence is factually sufficient to
support the termination of a parent-child relationship, we perform “an exacting
review of the entire record.” In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Although
we appreciate the “constitutional magnitude” afforded parental rights, we also
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recognize the imperative that the “emotional and physical interests of the child not
be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d at 26.
B. Legal and factual sufficiency
In his first issue, father contends the evidence is legally and factually
insufficient to support termination of his parental rights. When evaluating evidence
for legal sufficiency under a clear and convincing standard, we review all the
evidence in the light most favorable to the finding to determine whether a reasonable
factfinder could have formed a firm belief or conviction that the finding was true.
See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We resolve disputed fact
questions in favor of the finding if a reasonable factfinder could have done so, and
we disregard all contrary evidence unless a reasonable factfinder could not have
done so. City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex.2005); In re J.F.C., 96
S.W.3d at 266.
In conducting a factual sufficiency review, we consider the evidence that the
factfinder could reasonably have found clear and convincing, and based on the entire
record, we determine whether the factfinder could reasonably have formed a firm
belief or conviction that the allegations in the application were proven. In re J.F.C.,
96 S.W.3d at 266; In re J.O.A., 283 S.W.3d at 345. We also recognize that only the
trier of fact may judge the witnesses’ credibility, and resolves any conflicts between
testimony of different witnesses. City of Keller, 168 S.W.3d at 819; In re R.W., 129
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S.W.3d 732, 742–43 (Tex. App.—Fort Worth 2004, pet. denied) (jury was free to
disbelieve father’s assertion that he did not sexually abuse child at issue).
1. Findings of fact
As an initial matter, we must address father’s contention that despite his
timely and proper request, the trial court failed to file separate, post-judgment
findings of fact to support endangerment and best interest determinations and, as a
result, we may not imply or presume such findings on this record. See Tex. R. Civ.
P. 299 (“judgment may not be supported upon appeal by a presumed finding upon
any ground of recovery or defense, no element of which has been included in the
findings of fact; but when one or more elements thereof have been found by the trial
court, omitted unrequested elements, when supported by evidence, will be supplied
by presumption in support of the judgment”).
Here, the trial court’s finding of the predicate act of endangerment and its
best-interest-of-the-child finding are embodied in the final decree, not in separately
filed post-judgment findings of fact, as father requested.
Thus, father implicitly argues that because the trial court’s findings are
contained in the final decree, they must be disregarded as in violation of rule 299a,
which provides that findings of fact following a bench trial “shall not be recited in a
judgment.” Tex. R. Civ. P. 299a. Father also argues that because the only post-
judgment findings made by the trial court following his request related to the
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appointment of an attorney ad litem and concerned a variety of subsidiary, non-
controlling facts related to father’s conduct, we may not imply or presume
endangerment and best interest findings in support of the final decree terminating
his parental rights.7
Texas Rule of Civil Procedure 299a provides that a trial court’s findings of
fact following a bench trial “shall not be recited in a judgment,” but that if they are,
separately filed “findings of fact made pursuant to Rules 297 and 298 will control”
to the extent of any conflict between the two. Tex. R. Civ. P. 299a. We acknowledge
we have not been consistent in our interpretation of rule 299a. For example, in R.S.
v. B.J.J., 883 S.W.2d 711, 715 n.5 (Tex. App.–Dallas 1994, no writ), we concluded
that findings in the body of a judgment “are inappropriate and may not be considered
on appeal.”8 Other courts are in accord with this view. See, e.g., Sutherland v.
7
The only post-decree findings and conclusions made by the trial court related to the non-appointment of
an attorney ad litem, followed by a collection of subsidiary, non-controlling facts relating to father’s
conduct, mislabeled “conclusions of law.” As to the latter, we have recently noted, “A trial court should
make findings as to only disputed facts significant to the case’s ultimate issues. Findings that a jury would
be asked to make in a case may be an appropriate guide.” Guillory v. Dietrich, 598 S.W.3d 284, 290 (Tex.
App.—Dallas 2020, pet. denied); see also Watts v. Lawson, No. 07-03-0485-CV, 2005 WL 1241122, at *3
(Tex. App.—Amarillo May 25, 2005, no pet.); Stuckey Diamonds, Inc. v. Harris Cty. Appraisal Dist., 93
S.W.3d 212, 213 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Although there is generally no penalty
for superfluous findings, they often “make judgments unnecessarily difficult for litigants to appeal and
appellate courts to review.” Guillory, 598 S.W.3d at 290.
8
See also In re J.S., No. 05-16-00138-CV, 2017 WL 894541, at *7 n.4 (Tex. App.—Dallas Mar. 6, 2017,
no pet.) (mem. op.); Griffin v. Griffin, No. 05-06-00935-CV, 2007 WL 1413350, at *1 n.1 (Tex. App.—
Dallas May 15, 2007, no pet.) (mem. op.); Youngstown Area Jewish Fed’n v. Dunleavy, 223 S.W.3d 604,
610 (Tex. App.—Dallas 2007, no pet.); Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 802 (Tex.
App.—Dallas 2006, pet. denied); LaFrensen v. LaFrensen, 106 S.W.3d 876, 878 (Tex. App.—Dallas 2003,
no pet.); Casino Magic Corp. v. King, 43 S.W.3d 14, 19 n.6 (Tex. App.—Dallas 2001, pet. denied); FDIC
v. Morris, 782 S.W.2d 521, 523–24 (Tex. App.—Dallas 1989, no writ).
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Cobern, 843 S.W.2d 127, 131 n.7 (Tex. App.—Texarkana 1992, writ denied) (fact
findings contained in judgment may not be considered on appeal); Boland v. Natural
Gas Pipeline Co., 816 S.W.2d 843, 844 (Tex. App.—Fort Worth 1991, no writ)
(same).
More recently, however, we have said that “[b]ecause the record does not
contain any additional findings of fact or conclusions of law, the findings in the
judgment have probative value and will be treated as valid findings.” Lee v. Paik,
No. 05-17-01406-CV, 2019 WL 1033869, at *2 (Tex. App.—Dallas Mar. 5, 2019,
no pet.) (mem. op.) (citing George Joseph Assets, LLC v. Chenevert, 557 S.W.3d
755, 764 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)). Accord, In re
J.P.M., No. 05-18-00548-CV, 2019 WL 6768763, at *2 (Tex. App.—Dallas Dec.
12, 2019, no pet.) (mem. op.); In re E.A.C., 162 S.W.3d 438, 443 (Tex. App.—Dallas
2005, no pet.). Lee, In re J.P.M., and In re E.A.C. appear consistent with other
appeals courts that have considered the issue. See, e.g., Chenevert, 557 S.W.3d at
764; In re Sigmar, 270 S.W.3d 289, 295 n.2 (Tex. App.—Waco 2008, orig.
proceeding); Hill v. Hill, 971 S.W.2d 153, 156–57 (Tex. App.—Amarillo 1998, no
pet.). Still other authorities indicate that predicate-termination and best interest
findings are not the type of fact findings to which rule 299a applies and that it is
proper to include them in the final decree. See, e.g., Cervantes-Peterson v. Tex.
Dep’t of Family & Protective Servs., 221 S.W.3d 244, 252 (Tex. App.—Houston
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[1st Dist.] 2006, no pet.) (citing In re A.I.G., 135 S.W.3d 687, 693–94 (Tex. App.—
San Antonio 2003, no pet.); see also Colbert v. Dep’t of Family & Protective Servs.,
227 S.W.3d 799, 809 (Tex. App.—Houston [1st Dist.] 2006), pet. denied sub nom.
In re D.N.C., 252 S.W.2d 317 (Tex. 2008).
The obvious conflict in our own cases and among the courts of appeals
generally, however, is no impediment here because whatever the proper view, the
record before us shows that the trial court’s action was not erroneous for two reasons.
First, in a formal, post-trial “Memorandum Ruling” filed prior to entry of the
final decree, the trial judge divided the parties’ property, ordered child and medical
support, and terminated Father’s parental rights to his three children as follows:
The court finds that [Father] has engaged in conduct that
endangers the emotional and physical wellbeing of the
children and that termination of his parental rights is in the
children’s best interest.
This formal finding, filed with the clerk and encompassing both the predicate
ground for termination under family code section 161.001(b)(1)(E), and a best-
interest determination under family code section 161.001(b)(2), is fully consistent
with the findings contained in the final decree that followed, which found those
controlling facts were established “by clear and convincing evidence.” By use of
the term “[t]he court finds,” the memorandum manifests an intent that it should be
relied upon by the parties and the appellate court, see, e.g., Kendrick v. Garcia, 171
S.W.3d 698, 702 (Tex. App.—Eastland 2005, pet. denied), and it provides an
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extensive explanation for the trial court’s ruling. See In re Estate of Miller, 446
S.W.3d 445, 450–452 (Tex. App.—Tyler 2014, no pet.) (distinguishing Cherokee
Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d 872(Tex. 1990)); see also
Moore v. Jet Stream Invs., Ltd., 315 S.W.3d 195, 208 (Tex. App.—Texarkana 2010,
pet. denied.) (findings of fact and conclusions of law need not be in any particular
form so long as they are in writing and filed with the clerk) (citing Villa Nova Resort,
Inc. v. State, 711 S.W.2d 120, 124 (Tex. App.—Corpus Christi 1986, no writ)). The
trial court’s memorandum ruling is sufficient to comply with rules of civil procedure
296, 297 and 299a.
Second, even if we are mistaken in this view, there has been no harm to father
from the trial court’s failure to make post-decree findings and conclusions on the
endangerment and best interest issues. Tellingly, father points to no harm, but
merely assumes that the trial court’s failure to file findings of fact in response to his
request automatically places him in a strategic procedural position so as to entitle
him to the relief he seeks in this appeal. While harm to the complaining party is
generally presumed when a trial court fails to file fact findings on the controlling
issues of a case following a proper and timely request, that is only true so long as the
absence of harm does not appear on the face of the record. Tenery v. Tenery, 932
S.W.2d 29, 30 (Tex. 1996) (per curiam) (citing Cherne Indus. v. Magallanes, 763
S.W.2d 768, 722 (Tex. 1988); see also Ad Villarai, LLC v. Pak, 519 S.W.3d 132,
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135 (Tex. 2017); Ramer Concrete, Inc. v. Cardona, No. 05-17-01435-CV, 2018 WL
5724617, at *1 (Tex. App.—Dallas Nov. 1, 2018, pet. denied) (mem. op.). The
primary purpose of findings of fact is to narrow the basis of the judgment and
“thereby reduce the number of contentions the appellant must make on appeal.”
Guillory, 598 S.W.3d at 290. In this way, an appellant is not left to guess the basis
of the trial court’s final determination. Indeed, in assessing harm, we look to whether
the trial court’s failure to make findings and conclusions prevents the complaining
party from properly presenting its issues on appeal. Id. Error in failing to make
findings is harmful “if it prevents an appellant from properly presenting a case to the
appellate court.” Tenery, 932 S.W.2d at 30; see also Graham Cent. Station, Inc. v.
Peña, 442 S.W.3d 261, 263 (Tex. 2014). Put another way, our inquiry is whether,
because of the absence of findings, the party “must guess at the reason the trial court
ruled against it.” Ramer Concrete, Inc., 2018 WL 5724617, at *1.
On the record before us, there is no reason to guess about the basis of the trial
court’s final decree terminating father’s parental rights to his three children. Father
does not argue otherwise. Here we have a full reporter’s record of the trial
proceedings that reveals the evidence on the parental-rights termination issue was
focused on child endangerment and best interest issues. Moreover, father’s principal
brief aims directly at the endangerment and best interest issues. In addition, the trial
court was not presented with a complex proceeding relating to termination. The
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dispute was straightforward, not involving multiple grounds, alternative claims, or
different theories relating to relief sought or defenses thereto. Too, father had the
benefit of the trial court’s memorandum ruling and the final decree, both of which
are consistent in their findings relating to child endangerment and the best interest
of the children. And finally, in this case the remedy for a failure to make findings
would be to abate the appeal and direct the trial judge to file findings on
endangerment and best interest—presumably the very findings she has already made
twice.9
Accordingly, we reject father’s complaint that the trial court failed to make
proper and timely findings of fact or that such were necessary in this case.
2. Endangerment
Father argues that based on the language in the decree, the trial court premised
termination on a finding that his conduct endangered father’s children’s physical or
emotional well-being. This is consistent with the trial court’s memorandum ruling,
and five post-decree factual findings (mislabeled as conclusions of law) in the FFCL
also suggest the same basis for termination.10 Father asserts that even if these factual
findings were supported by clear and convincing evidence, they do not support
9
See, e.g., Ad Villarai, LLC, 519 S.W.3d at 136 (“When the trial court’s failure is harmful, the preferred
remedy is for the appellate court to direct the trial court to file the missing findings.”) (citing Magallanes,
763 S.W.2d at 722–23).
10
We may, of course, disregard the label used by the trial court and construe findings and conclusions in
whichever category they appropriately belong. Ray v. Farmers’ State Bank of Hart, 576 S.W.2d 607, 608
(Tex. 1979) (trial court’s designation of factual finding or conclusion of law not controlling).
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termination of his parental rights to any of his children, arguing, “engaging in
conduct that endangered some other child, somewhere, at some time is not a ground
for termination pursuant to § 161.001(b)(1)(E). . . .” Father’s argument, however,
divorces his conduct from the risk to his children, and ignores ample authority
supporting the conclusion that termination was necessary and appropriate.
The evidence supports and the trial court specifically found that father (1) took
sexually inappropriate photos of Z.W.; (2) initially admitted to mother that he took
the photos and acknowledged that he needed help; (3) took no steps to ensure he
would not do this again and instead subsequently denied that he took the pictures;
(4) began advancing the theory that mother had framed him; and (5) took no steps
to mitigate the damage his acts caused to his stepdaughter or his three biological
children. We conclude these findings, additional findings filed after trial but prior
to entry of the final decree, and the evidence presented, appropriately support
termination of father’s parental rights to father’s children, who were at risk for the
same conduct, on the predicate ground of endangerment.
We begin with the premise that, as required by the family code in termination
of parental rights cases, sexual abuse of a child endangers that child’s physical or
emotional well-being. TEX. FAM. CODE § 161.001(b)(1)(E) (termination permissible
where a parent “engages in conduct or knowingly places the child with persons who
engage in conduct which endangers the physical or emotional well-being of the
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child.”); In re M.J.P., No. 05-16-01293-CV, 2017 WL 655955, at *6 (Tex. App.—
Dallas Feb. 17, 2017, no pet.) (mem. op.). One single act or omission, however, fails
to justify termination. The statute requires instead “a voluntary, deliberate, and
conscious course of conduct by the parent.” In re T.L.E., 579 S.W.3d 616, 624 (Tex.
App.—Houston [14th Dist.] 2019, pet. denied).
The family code does not require that the endangering conduct be directed at
the child subject to the termination suit. In re J.O.A., 283 S.W.3d at 345 (“We have
previously said that endangering conduct is not limited to actions directed towards
the child.”). Indeed, predatory or harmful conduct directed at one child will support
termination of parental rights as to a different child, because all children at risk for
the same conduct by the same predator are endangered. In re T.L.E., 579 S.W.3d at
625 (“Evidence of sexual abuse of one child is sufficient to support a finding of
endangerment with respect to other children.”) (internal quotation and alteration
omitted); In re S.H., No. 02-17-00188-CV, 2017 WL 4542859, at *10 (Tex. App.—
Fort Worth Oct. 12, 2017, no pet.) (mem. op.) (“a parent’s endangering conduct
toward other children is relevant to a determination of whether the parent engaged
in behavior that endangered the child that is the subject of the suit”); In re S.G., No.
01-18-00728-CV, 2019 WL 1448870, at *1 (Tex. App.—Houston [1st Dist.] Apr. 2,
2019, pet. denied) (mem. op.) (termination premised on physical and emotional
danger posed by parent convicted of aggravated assault of a different child); In re
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E.A.G., 373 S.W.3d 129, 143 (Tex. App.—San Antonio 2012, pet. denied) (“Sexual
assault of a child in the home is conduct we may infer will endanger the physical
and emotional well-being of other children in the home who may either discover the
abuse or be abused themselves.”).
Here, the trial court determined father took sexually inappropriate photos of
Z.W., which also required that he undress her while she was sleeping. Thus, father’s
conduct was far from a passive lapse in judgment. Further, the evidence
demonstrates that rather than one isolated incident, father photographed Z.W. on
several different days, and searched on the internet for incestuous and pornographic
materials of children, and children and their fathers, as well. Father’s conduct
occurred while mother was present but sleeping, as were presumably each of father’s
children who were equally at risk from father’s conduct. Father was arrested on the
criminal charges while attempting to visit Z.W. at her school, although mother
testified he had no reason to be at the school. Father initially admitted to taking the
pictures (despite minimizing what he had done by clarifying that he had not touched
Z.W.), but subsequently lied about his conduct, blamed mother instead, and failed
to seek any treatment, therapy, or counseling to address and correct his behavior.
In crediting the trial court’s factual findings regarding father’s conduct despite
dismissal of the criminal charges against him, we do not, as father asserts, doom him
to termination “the minute” he was accused of inappropriate conduct. Father was
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not exonerated; the criminal charges were dismissed “without prejudice.” Thus, as
the factfinder, the trial court was free to reject father’s protestations of innocence,
which were premised solely on dismissal of the criminal charges and father’s
unsupported and implausible argument that mother manufactured pornographic
evidence reflecting his hand in the photos.11 Based on the evidence in the record,
the trial court could reasonably have formed a firm belief or conviction that father
engaged in a course of conduct that endangered not only Z.W., but also demonstrated
an unremitted predatory course of conduct endangering each of his own children.
See, e.g., In re S.R., 452 S.W.3d 351, 365 (Tex. App.—Houston [14th Dist.] 2014,
pet. denied) (parent’s failure to comply with services to improve mental health and
parenting relevant to endangerment); In re E.A.G., 373 S.W.3d at 143.
3. Best interests of the children
Father’s first issue also asserts the trial court abused its discretion because no
evidence supports any finding that termination was in the best interests of his
children.
“‘[B]est interest’ is a term of art encompassing a much broader, facts-and-
circumstances based evaluation [than a finding of harm or neglect, and] . . . is
11
We also reject father’s contention that termination premised on dismissed criminal charges denied father
an opportunity to present a hypothetically successful defense. Father could have contested the allegations
against him in numerous credible ways, for instance by producing and allowing examination of the phone
on which mother contends the photos were taken, or by calling as a witness someone from the investigating
police department to explain why the charges were dismissed.
–20–
accorded significant discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013).
Evidence demonstrating endangerment may also inform whether termination serves
the best interest of the child. In re C.H., 89 S.W.3d at 28; Holley v. Adams, 544
S.W.2d 367, 370 (Tex.1976). A parent’s best interest has no role in this analysis. In
re K.L.B., 2002 WL 31388776, at *2. Factors informing whether termination serves
the child’s best interest 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) these individuals’ or the agency’s plans for the child; (7) the
home’s or proposed placement’s stability; (8) the parent’s acts or omissions that
indicate an improper parent-child relationship; and (9) any excuse for the parent’s
acts or omissions. See Holley, 544 S.W.2d at 371–72; In re D.W., 445 S.W.3d 913,
925 (Tex. App.—Dallas 2014, pet. denied). These non-exclusive factors provide
guidance, rather than a checklist. In re C.H., 89 S.W.3d at 27. Some may be
inapplicable, and the absence of evidence supporting some will not preclude the
factfinder from forming a strong conviction that termination is in the child’s best
interest “if the evidence was undisputed that the parental relationship endangered
the safety of the child.” Id. Of course, a parent’s past conduct provides a persuasive
measure for future conduct regarding a child’s best interest. In re M.F., No. 01-17-
–21–
00835-CV, 2018 WL 1630180, at *6 (Tex. App.—Houston [1st Dist.] Apr. 5, 2018,
pet. denied) (mem. op.).
Father’s only discussion regarding the children’s best interests relies on the
custody evaluator’s recommendation that father receive supervised visitation.
Father’s argument thus ignores significant evidence supporting the judgment and
invites us to violate our obligation to review only the evidence supporting the
judgment with respect to the legal sufficiency, and to review all of the evidence with
respect to factual sufficiency. We accordingly consider each applicable factor in
turn.
i. The children’s desires
Our record does not include specific evidence regarding any of the children’s
desires regarding their placement or father’s continued role in their lives, although
the custody evaluator observed that each of father’s children appeared bonded to
father, and that he appropriately engaged with each. Nonetheless, the children’s
apparent love for father would merit little weight, particularly given their young age
and thus vulnerability, and his conduct endangering their well-being. In re J.J.S.,
No. 14-17-00359-CV, 2017 WL 4518595, at *11 (Tex. App.—Houston [14th Dist.]
Oct. 10, 2017, pet. denied) (mem. op.); In re J.M.T., 519 S.W.3d 258, 270 (Tex.
App.—Houston [1st Dist.] 2017, pet. denied) (noting that young age of child
weighed in favor of trial court’s finding that termination was in child’s best interest).
–22–
In re D.W., 445 S.W.3d at 926 (“evidence that a child loves a parent and enjoys visits
is only marginally relevant to a best interest finding.”).
ii. The children’s emotional and physical needs and
emotional and physical danger, now and in the future
Mother’s argument couples the second and third factors, the present and future
emotional needs of and danger to the children, asserting both underlie the basis for
terminating father’s rights. We agree. Father’s sexually predatory behavior
regarding Z.W. created the same danger to all the children who lived with him. His
conduct in denying any wrongdoing and blaming mother for fabricating evidence
further evidences the danger he presents to his children and their need for protection
from future conduct. See In re A.L., 545 S.W.3d 138, 149 (Tex. App.—El Paso
2017, no pet.) (factfinder may infer parent’s inability to improve unacceptable
conduct from failure to utilize available programs). Comparatively, mother’s
testimony and the custody evaluator’s report and opinion demonstrated the children
received from mother the love, care, nurturing and stable environment necessary for
their emotional and physical well-being. And no evidence suggested mother
presented any emotional or physical danger to the children. We conclude these
factors support termination.
While compelling evidence supporting just these two factors suffices to
demonstrate termination was in the best interests of the children, see In re C.H., 89
S.W.3d at 27 (“undisputed evidence of only one factor may be sufficient to support
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a finding that termination is in the best interest of the child”), ample additional
evidence supports termination here.
iii. The parties’ respective parenting abilities
The fourth factor, the relative parenting abilities of the parties, likewise
supports termination. Several considerations inform this factor, including parenting
skills and judgment. In re J.D., 436 S.W.3d 105, 119 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). The custody evaluator’s opinion references positive attributes
of both parents’ parenting abilities, for instance with respect to discipline, education,
and consistency. We cannot view that opinion in a vacuum, however, by ignoring
the evidence that father used Z.W. as the subject of child pornography. Although
father asserted mother instead engaged in that conduct, a reasonable factfinder could
have resolved this conflict against father, and concluded, as we do, that this factor
favors mother.
iv. Programs available to assist the parties to promote the
children’s best interests
With respect to the fifth factor, mother testified that she sought out and took
Z.W. to therapy, as well as having searched for sex addiction treatment programs for
father, which he chose to ignore. In comparison, father denied engaging in harmful
behavior necessitating assistive programs. Accordingly, this factor supports
termination. See In re A.F.J., 576 S.W.3d 743, 754 (Tex. App.—El Paso 2019, pet.
denied); In re W.E.C., 110 S.W.3d 231, 245 (Tex. App.—Fort Worth 2003, no pet.).
–24–
v. The parties’ respective plans for the children and stability of
proposed placement
We consider the sixth and seventh factors collectively, acknowledging the
importance of a stable home environment and whether a party’s parenting and
supervision plans are realistic and well-defined. In re J.D., 436 S.W.3d 105, 120
(Tex. App.—Houston [14th Dist.] 2014, no pet.). The custody evaluator inspected
the parties’ homes,12 which were both clean, well-furnished, and well-supplied with
food and other essentials. At the time of trial, father’s youngest child was in
kindergarten and daycare, with the older two in school full time. Mother testified
she had been steadily employed, personally cared for the children, and her work
schedule allowed flexibility to pick them up when school concluded. Father testified
he also planned to personally care for the children, but he did not identify any plan
enabling him to provide that care in light of his work schedule. The trial court also
heard testimony regarding father’s failure to comply with temporary orders requiring
father to pay child and medical support during the pendency of the divorce, and his
recent periods of unemployment and homelessness.
Given the trial court’s role in judging the witnesses’ credibility and evaluating
the parties’ respective plans, as well as father’s recent history of unemployment and
12
Although father lives with his girlfriend in her home, for some period after mother filed for divorce but
before the custody evaluator was appointed, father had lived in the homeless shelter at the VA hospital.
The custody evaluator also noted that the girlfriend was aware of the abuse allegations against father but
believed mother had fabricated those allegations.
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homelessness, we conclude the trial judge may have reasonably determined father’s
plan was not realistic and his home situation was less stable than mother’s, and
resolved this factor in favor of mother. See id.; see also In re M.F., No. 01-17-
00835-CV, 2018 WL 1630180, at *6 (Tex. App.—Houston [1st Dist.] Apr. 5, 2018,
pet. denied) (mem. op.) (court may consider “circumstantial evidence, subjective
factors, and the totality of the evidence” as well as evaluating parent’s future conduct
by comparing it with past conduct).
vi. Parent’s acts or omissions relevant to existing parent-child
relationship and any related excuses
We also consider the final two factors together. The same facts relevant to
endangerment, as well as the evidence related to factors two and three above, inform
this factor. See In re J.D., 436 S.W.3d at 121 (discussing endangering child abuse
by mother regarding this factor). We conclude father’s actions in taking photographs
of Z.W. for pornographic purposes, his internet searches for similar incestuous
materials, his denial of those activities and efforts to blame mother instead, and his
failure to seek out help for himself regarding that conduct support termination
pursuant to these factors.
Utilizing the appropriate standards and considering the appropriate evidence
for both father’s legal sufficiency challenge and his factual sufficiency challenge,
we conclude that a reasonable factfinder could have formed a firm belief or
–26–
conviction that each of the findings informing and supporting termination was true.
We resolve father’s first issue against him.
C. Failure to appoint an ad litem13
In his second issue, father complains that the trial court failed to appoint an
ad litem attorney as required by family code section 107.021(a–1). See TEX. FAM.
CODE § 107.021(a–1). He also argues that although the trial court found appointment
of an ad litem was unnecessary, no evidence supports that finding. Mother responds
that in failing to raise this argument until his motion for new trial, father waived it.
If not waived, however, mother asserts no appointment was necessary.
Generally, we will not consider errors not timely raised in the trial court. TEX.
R. APP. P. 33.1(a). Although father contends he preserved his objection to the trial
court’s failure to appoint an ad litem by raising it in his motion for new trial, we
disagree. Any conflict between mother’s interests and the children’s which
precluded mother from adequately representing the children’s interests was present
from the inception of the case. Thus, father’s objection raised after trial was
untimely and failed to preserve the error, if one existed. Vaughan v. Walther, 875
S.W.2d 690, 690-91 (Tex. 1994) (disqualification of opposing counsel waived
because complaining party failed to object as soon as conflict of interest became
apparent); Crews v. Dkasi Corp., 469 S.W.3d 194, 201 (Tex. App.—Dallas 2015,
13
Our references to an ad litem attorney include an amicus attorney.
–27–
pet. denied) (“‘[T]imely’ objection for purposes of rule 33.1 is one interposed at a
point in the proceedings which gives the trial court the opportunity to cure any
alleged error.”) (internal quotation omitted).
Even if not preserved, father contends he may raise his objection for the first
time on appeal, relying on Turner v. Lutz, 654 S.W.2d 57, 58 (Tex. App.—Austin
1983, no writ) (“[A] court’s error in failing to appoint a guardian ad litem can be
raised, as it was in this case, for the first time on appeal”). We conclude, however,
that the due process analysis mandated by In re B.L.D., 113 S.W.3d 340, 351 (Tex.
2003), compels the opposite conclusion. Based on our analysis below, we thus
conclude that father’s failure to raise a timely objection to the trial court’s refusal to
appoint an ad litem attorney waived the issue. See also In re L.F., No. 02-19-00421-
CV, 2020 WL 2201905, at *11–13 (Tex. App.—Fort Worth May 7, 2020, no pet. h.)
(applying B.L.D. analysis to unpreserved error regarding trial court’s failure to
appoint counsel for indigent parent in adoption proceeding following termination,
and finding no “fundamental unfairness”); see also, e.g., Baize v. Baize, 93 S.W.3d
197, 203 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (“When there are no
circumstances causing a trial court to believe an ad litem is necessary, a party who
does not request appointment of an ad litem and does not object to the failure to
appoint one waives any error regarding the trial court’s failure to appoint an ad
litem.”).
–28–
In rejecting Turner and its progeny, we observe neither it nor the cases that
follow it rest on the analysis provided by B.L.D., or, indeed, even contemplate that
analysis. Instead, in each case in which the failure to appoint an ad litem was
considered on appeal despite failure to raise the error in the trial court, at most, the
right to an ad litem was simply described as one of constitutional magnitude with no
analysis regarding whether due process rights were unfairly restricted by enforcing
our waiver rules. See In re D.M.O., No. 04-17-00290-CV, 2018 WL 1402030, at *2
(Tex. App.—San Antonio Mar. 21, 2018, no pet.) (mem. op.) (“[W]e conclude a
complaining party may raise a trial court’s failure to appoint an attorney ad litem or
amicus attorney when required by Section 107.021(a–1) for the first time on
appeal.”); In re K.M.M., 326 S.W.3d 714, 715 (Tex. App.—Amarillo 2010, no pet.)
(“Simply put, the failure to comply with § 107.021 is error that cannot be treated as
harmless due to the serious nature of the proceedings involved.”); Turner, 654
S.W.2d at 59–60 (“The issues involved in the termination of parental rights action
are of such a serious nature that the trial court’s error cannot be treated in any other
way [i.e., excepted from waiver rules]”); Arnold v. Caillier, 628 S.W.2d 468, 469
(Tex. App.—Beaumont 1981, no writ) (“Cases involving termination of parental
rights present issues of constitutional dimensions.”).
In B.L.D., the Texas Supreme Court considered whether a parent subject to a
termination proceeding waived charge error by failing to timely object. 113 S.W.3d
–29–
at 340. The court first recognized the important prudential considerations underlying
preservation of error rules, including fairness among litigants and conserving
“judicial resources by giving trial courts an opportunity to correct an error before an
appeal proceeds.” Id. at 350. It also determined that despite the constitutional
importance of parental rights, those rights did not implicate the fundamental error
doctrine, which provided an exception to our preservation of error rules. Id. at 350–
51. Because termination cases nonetheless implicate “fundamental liberties,” the
court acknowledged the due process—fundamental fairness—requirements inherent
in the proceedings. It observed the presumption that “our rules governing
preservation of error in civil cases comport with due process,” id. (citing Lassiter v.
Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981), and Whitworth v. Bynum, 699 S.W.2d
194, 197 (Tex.1985) (“A court begins by presuming a statute’s constitutionality,
whether the basis of the constitutional attack is due process or equal protection”)),
and embraced its prior determinations that unpreserved complaints regarding
constitutionally protected parental rights were subject to waiver. Id. (citing Tex.
Dep’t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001)
(concluding constitutional right to assert paternity claim, not raised in trial court,
was waived)); see also In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005) (“We have
held that the rules governing error preservation must be followed in cases involving
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termination of parental rights, as in other cases in which a complaint is based on
constitutional error.”).
The court then evaluated whether due process nonetheless required review of
an unpreserved complaint regarding charge error in that termination case, by
identifying and balancing the three factors delineated in Mathews v. Eldridge, 424
U.S. 319, 335(1976)14, and as required by Lassiter, 452 U.S. at 27, balancing the
“net weight” of those factors against the presumption that our preservation law does
not permit review of unpreserved error in civil cases. In re B.L.D., 113 S.W.3d at
352. The court concluded that the three factors in play—the private interest, the risk
of erroneous deprivation of that private interest through the procedures at issue, and
the competing governmental interest—did not rebut the presumption that “our error
preservation rules comport with due process.” Id. at 354.
Although we examine waiver of a different error—failure to appoint an ad
litem—we follow the same analysis. As in B.L.D., father’s “fundamental liberty
interest in the care, custody and control of his children” favors reviewing
unpreserved error. Similarly, we recognize the state’s dual, but competing interests.
The best interest of the child—the State’s foremost interest in termination suits, see
14
These factors are: “[f]irst, the private interest that will be affected by the official action; second, the risk
of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute procedural requirement
would entail.” Eldridge, 424 U.S. at 335.
–31–
TEX. FAM. CODE § 153.001(a)—also favors reviewing unpreserved error if necessary
to ensure an “accurate and just decision.” In re B.L.D., 113 S.W.3d at 353. The best
interest of the child, however, also requires a heightened concern for judicial
economy manifested as a prompt and final resolution of termination cases.15 And
the State’s interests here, as in every case, includes ensuring trial courts have an
opportunity to correct their own errors. Those competing interests weigh against
allowing review of unpreserved error, and equalize the State’s and father’s interests.
The final Eldridge factor, the risk of an erroneous deprivation of parental
rights arising from application of our preservation of error rules, weighs against
disregarding our error preservation rules. A comprehensive, belt-and-suspenders
process guards against erroneous decisions in parental termination cases. Indeed,
the appointment of an ad litem is but one of those protections. See TEX. FAM. CODE
§§ 107.013, 107.021. The process includes an extensive statutory scheme intended
to minimize the risk of erroneous deprivation. See TEX. FAM. CODE §§ 102.008,
161.101 (petition seeking termination of parental rights must provide full notice to
all parties involved and prove statutory grounds for termination and that termination
15
Termination cases mandate judicial economy. “To ensure that children’s lives are not kept in limbo while
judicial processes crawl forward, the Legislature requires that termination proceedings conclude at the trial
level within a year and a half from the date of a child’s removal from the parent.” In re B.L.D., 113 S.W.3d
at 353 (citing TEX. FAM. CODE § 263.401 (providing that a trial court must dismiss a case within one year,
but permitting one 180-day extension)). Additionally, appellate review of these cases must conclude within
180 days, TEX. R. JUD. ADMIN. 6.2(A), and the order rendered is subject to direct or collateral attack for
only six months after it is signed. Id. at § 161.211.
–32–
is in the child’s best interest); id. at § 107.013(a)(1) (trial court must appoint counsel
for indigent parents opposing termination); id. at § 161.001(b) (involuntary
termination permitted only if clear and convincing evidence satisfies statutory
requirements). Additionally, the heightened burden of proof mandates a heightened
standard of review for both legal and factual sufficiency challenges. In re B.L.D.,
113 S.W.3d at 353–54. These protections accordingly suggest a low risk of an
erroneous deprivation of parental rights if our preservation rules are enforced with
respect to the additional safeguard provided by appointment of an ad litem attorney.
We conclude father’s private interest is offset by the State’s competing interests, and
the risk of deprivation favors enforcing our preservation rules. Thus, the weight of
these factors demonstrates that enforcing our preservation rules does not violate
father’s due process rights.
Moreover, in the event the fact-specific analysis also conducted in Lassiter
and considered in B.L.D. is necessary,16 we conclude the facts here do not alter the
net weight of the factors described above. We thus also reject as inapplicable the
holding of In re M.S., 115 S.W.3d 534, 548 (Tex. 2003) (due process precludes
waiver of factual insufficiency argument not raised in parental termination case
where appointed counsel was ineffective). As discussed below, mother’s interests
were aligned with father’s children’s interests and she accordingly represented their
16
See Lassiter, 452 U.S. at 31; B.L.D., 113 S.W.3d at 354.
–33–
interests so as to negate the need for an ad litem. We conclude father waived any
complaint regarding the trial court’s failure to appoint an ad litem by failing to raise
it prior to trial, and that by following our error preservation rules, we do not deprive
father of any due process right.
But even if we did not find waiver, we would affirm the trial court’s factual
finding because the exceptions included in the statute abrogate the requirement of
an ad litem here. With respect to appointing an ad litem when the government is not
a party, the family code provides:
(a–1) In a suit requesting termination of the parent-child relationship
that is not filed by a governmental entity, the court shall, unless the
court finds that the interests of the child will be represented adequately
by a party to the suit whose interests are not in conflict with the child’s
interests, appoint one of the following:
(1) an amicus attorney; or
(2) an attorney ad litem.
TEX. FAM. CODE §107.21(a–1). Thus, the statute contemplates one party in a private
suit may adequately represent the child’s interests, so long as that party’s interests
are not in conflict with those of the child.
In the FFCL, the trial court found an ad litem was unnecessary:
Prior [sic] at the pretrial hearing,17 the Court considered whether the
appointment of an Ad Litem for the three children was necessary and
17
Our record does not include any evidence that mother requested that the trial court determine whether an
ad litem was unnecessary, and as noted above, father made no request for appointment of an ad litem until
after trial. We observe, however, that the statute does not preclude a court making the determination sua
sponte.
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concluded per 107.021 that it was not necessary because their interests
would be adequately represented by a party whose interests were not in
conflict with the children’s. In making this determination, the Court
considered the limited resources of the parties and the complexity of
the litigation and that the primary issue in this case would be the
credibility of the evidence presented at trial. Consequently, no
appointment was made.
Nonetheless, father relies on cases which essentially reject the facial import
of the statute by holding “a trial court can seldom find that one party adequately
represents the interests of the children involved or that their interests are not
adverse.” In re K.M.M., 326 S.W.3d at 715; see also Chapman v. Chapman, 852
S.W.2d 101, 102 (Tex. App.—Waco 1993, no writ) (concurrent ability to adequately
represent child’s needs while also seeking to terminate other party’s parental rights
would be “rare situation”). Contrary to the implicit premise of these decisions, here
we are not presented with any reason mother sought to terminate father’s rights
except for the best interests of all her children. We see no conflict between Z.W.’s
interests and those of her siblings, and thus no conflict between mother’s interests in
protecting Z.W. and protecting father’s children. See In re B.W., No. 02-19-00009-
CV, 2019 WL 2041808, at *7 (Tex. App.—Fort Worth May 9, 2019, no pet.) (mem.
op.) (mother’s testimony that she sought to protect child from father with a history
of family violence demonstrated mother’s interests aligned with child’s); In re
C.A.P., No. 04-12-00553-CV, 2013 WL 749825, at *2 (Tex. App.—San Antonio
Feb. 27, 2013, pet. denied) (mem. op.) (no error in refusal to appoint ad litem in
–35–
private termination case where mother sought to terminate father’s rights following
his conviction for sexual assault of a different child); In re T.L.W., No. 12-10-00401-
CV, 2012 WL 1142475, at *3 (Tex. App.—Tyler Mar. 30, 2012, no pet.) (mem. op.)
(no error in refusing to appoint ad litem where record reflected mother’s primary
interest in seeking father’s termination was in best interest of her child); In re R.J.C.,
No. 04–09–00106–CV, 2010 WL 816188, at *2 (Tex. App.—San Antonio Mar. 10,
2010, no pet.) (mem. op.) (no error in refusal to appoint ad litem and concurrent
findings that mother adequately represented child’s interest in termination
proceeding premised on father’s sexual assaults of mother’s other children).
Finally, although the trial court made its determination at an unspecified
pretrial hearing for which no record was made, father waived any error arising from
the court reporter’s failure to transcribe the hearing. See Kohler v. M & M Truck
Conversions, No. 02-08-00332-CV, 2009 WL 2579639, at *1 (Tex. App.—Fort
Worth Aug. 21, 2009, no pet.) (mem. op.) (absent express agreement to waive
record, reporter’s failure to transcribe constitutes error subject to complaining
party’s burden to raise timely objection regarding such error). We accordingly
presume any evidence considered at the hearing supports the finding. Michiana
Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 783 (Tex. 2005).
–36–
We resolve father’s second issue against him. We affirm the trial court’s
judgment.
/Ken Molberg/
KEN MOLBERG
JUSTICE
200340f.p05
Burns, C.J., dissenting
–37–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF A.E.J., On Appeal from the 301st Judicial
L.S.J., AND D.M.J., CHILDREN District Court, Dallas County, Texas
Trial Court Cause No. DF-17-19493.
No. 05-20-00340-CV Opinion delivered by Justice
Molberg. Chief Justice Burns and
Justice Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee recover her costs of this appeal from
appellant.
Judgment entered this 31st day of August, 2020.
–38–
in the Interest of A.E.J., L.S.J., and D.M.J., Children
Combined Opinion