in the Interest of A.E.J., L.S.J., and D.M.J., Children

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

–23–
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.

–25–
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

–30–
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.

–34–
 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–