in the Interest of C.H., T.H. and S.H., Children ( 2009 )

NO. 07-09-0019-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 19, 2009
______________________________
IN THE INTEREST OF C.H., T.H. AND S.H., CHILDREN
_________________________________
FROM THE 395TH DISTRICT COURT OF WILLIAMSON COUNTY;
NO. 07-1763-F395; HON. MICHAEL JERGINS, PRESIDING
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ORDER ABATING APPEAL
This is an accelerated appeal from an order terminating the parental rights of both
parents to their three children. Both parents timely filed statements of points and notices
of appeal. The clerk’s record was filed on January 28, 2009, and the reporter’s record was
filed on February 26. Also on February 26, the mother of the children filed a motion
requesting abatement of the appeal and remand to the trial court for entry of findings of
fact and conclusions of law.
The mother informs us she timely filed a request for findings of fact and conclusions
of law pursuant to Rule of Civil Procedure 296. See Tex. R. Civ. P. 296. She also informs
us she timely filed a notice of past due findings of fact and conclusions of law pursuant to
Rule 297. See Tex. R. Civ. P. 297. The clerk’s record supports the mother’s statements.
The trial court did not file findings or conclusions, and the mother now argues the appeal
should be abated and remanded for entry of findings of fact and conclusions of law.
The termination order recites the trial court found four grounds for termination of the
mother’s parental rights, and found termination was in the best interest of the children.
See Tex. Fam. Code Ann. § 161.001 (Vernon 2008) (listing grounds for involuntary
termination). Two of the grounds are those described in §§ 161.001(1)(D) and
161.001(1)(E). The termination order contains statements that the trial court found by clear
and convincing evidence that the mother “knowingly placed or knowingly allowed the
children to remain in conditions or surroundings which endanger the physical or emotional
well-being of the children” and that she “engaged in conduct or knowingly placed the
children with persons who engaged in conduct which endangers the physical or emotional
well-being of the children[.]” In support of her motion to abate, the mother cites Juan A__
v. Dallas County Child Welfare, 733 S.W.2d 559 (Tex.Civ.App.–Dallas 1986, no writ); W__
H__ v. Moore, 589 S.W.2d 830 (Tex.Civ.App.–Dallas 1979, no writ), and our opinion in In
re S__ H__, 548 S.W.2d 804 (Tex.Civ.App.–Amarillo 1977, no writ), for the proposition that
findings under subsections (D) and (E) of § 161.001(1)1 worded in the alternative are
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In all the cited cases, the former termination statute, § 15.02 of the Family Code,
applied.
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improper because they do not state which of the alternatives occurred. See, e.g., In re S__
H__, 548 S.W.2d at 806 (stating a finding the parents engaged in endangering conduct or
knowingly placed the children with persons who engaged in such conduct is not a finding
that either occurred). By its use of such alternative wording, the mother asserts, the trial
court’s order does not state the facts on which the trial court relied to support its
termination order.
It is not clear to us that In re S__ H__, Juan A__, and W__ H__ reflect current
requirements concerning the findings necessary to support an order terminating parental
rights. See Cervantes-Peterson v. Texas Dep’t of Family & Protective Services, 221
S.W.3d 244, 252 (Tex.App.–Houston [1st Dist.] 2006, no pet.) (distinguishing findings
required by rules of civil procedure and those required by Family Code § 161.206); In re
M.M.M., 229 S.W.3d 821, 823 (Tex.App.–Fort Worth 2007, no pet.) (best interest finding);
In re A.I.G., 135 S.W.3d 687, 694 (Tex.App.–San Antonio 2003, no pet.); cf. Texas Dep’t
of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (for jury charge purposes,
controlling question was whether parent-child relationship should be terminated).
Nevertheless, we will grant the mother’s motion here, for two reasons. First,
appellee, the Texas Department of Family and Protective Services, has filed a response
stating it does not oppose the motion. Second, this case was transferred to us from the
Austin Court of Appeals District. A panel of the Austin court, as recently as 1998, cited
Juan A__ and In re S__ H__ in support of a statement that an endangering conduct finding
was “improperly phrased in the alternative.” Baetz v. Texas Dep’t of Protective and
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Regulatory Servs., No. 03-97-00222-CV, 1998 WL 849394 *1 n.2 (Tex.App.–Austin
Dec.10, 1998, no pet.). See Tex. R. App. P. 41.3.
Accordingly, we abate the appeal and remand the cause to the 395th District Court
of Williamson County, Texas. We direct the judge of the trial court to execute findings of
fact and conclusions of law. Because the appeal is accelerated, we also direct the judge
to file the findings and conclusions with the trial court clerk on or before April 8, 2009, and
further direct the trial court clerk to prepare and file a supplemental clerk’s record,
containing the findings and conclusions, with the clerk of this Court immediately on their
filing with the trial court clerk. On the filing with this Court of the supplemental clerk’s
record containing the findings and conclusions, the appeal will be reinstated.
It is so ordered.
Per Curiam
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