B. J. B., In Interest of, 8427

• Decision Date: 25 January 1977
• Docket Number: No. 8427,8427
• Citation: 546 S.W.2d 674
• Parties: In the Interest of B. J. B. and C. E. B., children.
• Court: Texas Court of Appeals

Page 674

546 S.W.2d 674

In the Interest of B. J. B. and C. E. B., children.

No. 8427.

Court of Civil Appeals of Texas,

Texarkana.

Jan. 25, 1977.

Rehearing Denied Feb. 22, 1977.

Gary E. Conrad, Dallas, for appellant.

Thomas Wuntch, Wuntch & Wuntch, Dallas, for appellee.

CHADICK, Chief Justice.

This appeal is from a judgment decreeing termination of the parent-child relationship existing between a father and his two infant daughters and appointing such children's maternal grandparents their managing conservators. The judgment is affirmed.

The father and mother of the children were separated and the mother and children lived with and in the home of the wife's parents . On February 14, 1974, the father visited with his wife and children. On that occasion, while the children were in a bedroom playing and the husband and wife were in the kitchen, an argument between the parents erupted. The husband killed his wife by stabbing her with a butcher knife. He was convicted October 18, 1974, of voluntary manslaughter and sentenced to confinement in the penitentiary for not less than two nor more than twenty years.

As a prelude to this appeal, a request by the father was made pursuant to Tex.R.Civ.P. 295 for findings of fact and conclusions of law. The request was honored. The court's finding of fact numbered eight ¹ and conclusion of law numbered one ² are challenged on the ground that no evidence supports them or that the evidence is insufficient for such purpose and that such determinations are contrary to the great weight and preponderance of the evidence. In addition, the court's two conclusions of law are each challenged as an abuse of discretion because such determinations are contrary to the great preponderance of the evidence.

The trial court's response to the request did not include an express finding of fact that termination of the parent-child relationship was in the best interests of the children. The first numbered conclusions of law nevertheless stated that the relationship 'be and the same is terminated.' The father urges points of error that the trial court erred in finding, for reasons earlier noticed, the termination would be in the best interest of the children. Though the finding thus challenged was not expressly made, under Tex.R.Civ.P. 299, this Court may presume that the trial court found that termination was in the children's best interest as an omitted unrequested finding of an element of the action pled. See Hodges v. Hodges, 207 S.W.2d 943 (Tex.Civ.App. Fort Worth 1948, no writ).

Involuntary termination of the parent-child relationship is governed by Texas Family Code Ann., Sec. 15.02. This section authorizes a court, having jurisdiction, to enter such order when the evidence is sufficient to show termination is in the best interest of the child, if coupled with such finding an additional determination is made that there exists one of the several other grounds listed in Section 15.02. In this instance Section 15.02(1)(E) (Supp.1976--1977) is relied upon. To be sustained as a companion ground, such subdivision requires proof that a parent engaged in conduct which endangers the physical or emotional well-being of a child. The children's best interests and the father's conduct endangering their physical or emotional well-being combined to form the gravamen of this action for termination. Holley v. Adams, 544 S.W.2d 367 (Tex.1976); Wiley v. Spratlan, 543 S .W.2d 349 (Tex.1976). The trial court having expressly found as a fact one element of such cause of action, that is, conduct that endangers the children's physical and emotional well-being, then the other element of the action, the children's best interests, may be presumed as found in support of the judgment rendered.

The best interest of the children is not a concept which lends itself to easy definition. In Holley v. Adams, supra, the Supreme Court made a partial list of factors to be considered. Those which have bearing on this case are (1) the present emotional and physical needs of the children and such needs in the future, (2) the parental abilities of the individuals seeking custody, and (3) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one.

The father stipulated to the grandparents' good character. Extensive testimony, sufficient in all material detail, was introduced to establish the grandparents possessed the abilities requisite to custody and the...