in the Interest of C.C.G., Child ( 2016 )

Memorandum Opinion filed November 10, 2016, Withdrawn; Affirmed and
Substitute Memorandum Opinion filed May 17, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00015-CV
IN THE INTEREST OF C.C.G., A Child
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2013-03557J
SUBSTITUTE MEMORANDUM OPINION
We deny the motion for rehearing en banc as moot, withdraw our
memorandum opinion filed November 10, 2015, and issue the following substitute
memorandum opinion.
This appeal arises from an order signed by the trial court on December 17,
2014. The underlying suit was initiated by the Texas Department of Family and
Protective Services and sought termination of the parental rights of M.L.G. (the
mother) and S.G., (the Father), as joint managing conservators and gave the Father
the right to establish the Child’s primary residence. From that order, Mother brings
this appeal.
In her brief, appellant contends reversal of the trial court’s order is required
because the trial court failed to file findings of fact and conclusions of law. As this
court has noted, “a trial court must file written findings of fact and conclusions of
law when timely requested by a party.” Baltzer v. Medina, 240 S.W.3d 469, 474–
75 (Tex.App.—Houston [14th Dist.] 2007, no pet.) (citing Tex. R. Civ. P.
296, 297; Cherne Indus. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989)). “The
trial court’s failure to respond to a timely request constitutes error and is presumed
harmful unless the record affirmatively shows that the complaining party has
suffered no harm.” Id. If there are two or more possible grounds on which the
court could have ruled, and the appellant is left to guess the basis of the trial court's
ruling, an appellant is harmed. Id. (citing Goggins v. Leo, 849 S.W.2d 373, 379
(Tex.App.—Houston [14th Dist.] 1993, no writ)). The trial court’s error in failing
to file findings of fact and conclusion of law is harmful if it prevents an appellant
from properly presenting a case to the appellate court. Rumscheidt v. Rumscheidt,
362 S.W.3d 661, 665 (Tex.App.—Houston [14th Dist.] 2011, no pet.). When the
circumstances of a case require an appellant to guess the reason the court ruled as it
did, harm may exist. In re J.I.T.P., 99 S.W.3d 841, 848-49 (Tex.App. — Houston
[14th Dist.] 2003, no pet.).
In this case, as in Baltzer, the trial court did not set forth findings in a
separate document but erroneously included findings in its order modifying the
parent-child relationship. Baltzer, 240 S.W.3d at 474. “These findings have
probative value as long as they do not conflict with those in a separate document.”
Id. (citing In re U.P., 105 S.W.3d 222, 229, n. 3 (Tex.App.—Houston [14th Dist.]
2003, pet. denied)). In its final order the trial court found “the material allegations
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in the Department’s Third Amended Motion to Modify are true and that the
following orders are in the best interest of the child.” Further, the trial court found
that circumstances “have materially and substantially changed since the rendition
of the order to be modified.” Because there are no findings in a separate document
that conflict with these findings, they will not be denied probative value. Id. (citing
U.P., 105 S.W.3d at 229, n. 3). Thus, the trial court’s failure to enter findings of
fact or conclusions of law did not leave appellant to guess the basis for the trial
court’s ruling and did not prevent her from making a proper presentation of her
case to this court. Id. (citing Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex.1996)).
Mother contends she cannot know upon what facts the trial court relied.
However, as this court held in In re J.I.T.P., 99 S.W.3d at 848-49, because a
complete reporter’s record was filed, appellant was able to fully brief, and we were
able to fully review, whether the judgment is supported by legally and factually
sufficient evidence. Moreover, appellant does not identify any issue that she was
unable to brief as a result of the trial court’s failure to make findings of fact and
conclusions of law. See Watts v. Oliver, 396 S.W.3d 124, 131 (Tex.App. —
Houston [14th Dist.] 2013, no pet.).
For these reasons, we conclude the trial court’s error in failing to file
findings of fact and conclusions of law was harmless. Accordingly, we overrule
appellant’s sole issue and affirm the trial court’s judgment.
PER CURIAM
Panel consists of Justices Jamison, McCally and Wise.
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