HAROLD BARNES AND NICOLASA BARNES, Appellant v. DALLAS COUNTY CHILD WELFARE UNIT OF THE TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellee

Affirmed and Opinion filed October 9, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00287-CV
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HAROLD BARNES AND NICOLASA BARNES, Appellant
V.
DALLAS COUNTY CHILD WELFARE UNIT OF THE
TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellee
 
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On Appeal from the 305th District Court
Dallas County, Texas
Trial Court Cause No. 87-811-X
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O P I N I O N
Before Justices Whitham, Baker and Ovard
Opinion By Justice Whitham
        The parent-appellants, Harold Barnes and Nicolasa Barnes, appeal from a judgment terminating the parent-child relationships between them and their daughter, Christina, born September 14, 1982. The judgment followed the filing of a petition for termination of parental rights by the appellee, Dallas County Child Welfare Unit of the Texas Department of Human Services, pursuant to the Texas Family Code, section 15.02(1)(D) and (E) and 15.02(2). The trial court found that each parent has knowingly placed or knowingly allowed Christina to remain in conditions or surroundings which endanger the physical or emotional well-being of Christina and has engaged in conduct and knowingly placed Christina with persons who engaged in conduct which endangers the physical or emotional well-being of Christina. See Tex. Fam. Code Ann. § 15.02(1)(D) and (E) (Vernon 1975). The trial court also found that termination of the parental-child relationship between each parent and Christina is in the best interest of the child. See Tex. Fam. Code Ann. § 15.02(2)(Vernon 1975). Subsumed in all of the above findings are perceived trial court findings that Christina's loss of weight was the result of neglect or intentional starvation and that it would be in Christina's best interest to have the Texas Department of Human Services named as her managing conservator. The principal issues are whether the evidence is legally and factually sufficient to support the trial court's findings. We find no merit in the parents' points of error raising these issues or in any of the other of the parents' points of error. Accordingly, we affirm.
        The father and mother have four children: Christina and her three brothers. Child welfare does not complain of the parents' treatment of the three boys. The father had been incarcerated in the Texas Department of Corrections until his release on June 26, 1987, at which time he returned to his home with the mother and his four children. The father testified that on or about July 16, 1987, he noticed that a cold sore that Christina had on her lip had moved from his daughter's lip and moved to inside her mouth. The father on that day took Christina to a doctor as more fully described below. That trip to the doctor set in motion this termination proceedings which was filed October 30, 1987. In January of 1988 the father fled the State of Texas because he had violated the terms of his parole from the Texas Department of Corrections by engaging in the criminal activity of delivering a controlled substance. The father voluntarily surrendered to authorities in Las Vegas, Nevada, and waived extradition. By June of 1988, the father was back in the Texas Department of Corrections where he remained at time of trial on November 14, 1988.
        A "legally insufficient" point is a "no evidence" point presenting a question of law. In deciding that question, we must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex. 1985). If a "no evidence" point is sustained and the proper procedural steps have been taken, the finding under attack may be disregarded entirely and judgment rendered for the appellant unless the interests of justice require another trial. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). It is fundamental that these fact findings must be upheld if there is more than a scintilla of evidence in support thereof. Stedman v. Georgetown Sav. & Loan Ass'n, 595 S.W.2d 486, 488 (Tex. 1979). In reviewing "factually insufficient" points, we consider all the evidence including any evidence contrary to the judgment. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980). A finding can be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Applying these principles, we must first determine if there is evidence of probative value to support the trial court's findings. A termination suit involves constitutional dimensions and therefore is not an ordinary civil suit. The burden of proof necessary to involuntarily terminate parental rights is proof by proof by clear and convincing evidence. In re G.M., 596 S.W.2d 846, 846-47 (Tex. 1980); Doria v. Texas Dep't of Human Resources, 747 S.W.2d 953, 955 (Tex. App.--Corpus Christi 1988, no writ). When both "no evidence" and "insufficient evidence" points of error are raised in the court of appeals, the court should rule upon the "no evidence" point first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981). We turn, therefore, to consider only the evidence and the inferences tending to support the trial court's findings disregarding all evidence and inferences to the contrary.
        On July 16, 1987, child welfare received a referral on Christina from the Freeman Clinic of the Children's Medical Center of Dallas noting that Christina was suffering from severe medical neglect and appeared to be developmentally delayed. Two child welfare caseworkers, Heather Sisler and Esmeralda Martinez, investigated this referral by proceeding immediately to the Children's Medical Center of Dallas. Upon reaching the Clinic, Ms. Sisler and Ms. Martinez located Christina and her father. Christina was observed to be very thin and frail, and listless and lethargic. Over the course of the next four hours, Christina spoke only once. Periodically, the two caseworkers noticed blood trickling from the corners of Christina's mouth. The father had no explanation for Christina's condition except that she had not eaten well over the past two weeks. An extensive examination of Christina ruled out leukemia, renal failure, tuberculosis, and diabetes among other diseases which could cause a child to appear in this condition. The examination revealed an extremely cachectic child. Christina's gums were edematous and bleeding, and her tongue and mouth was white and coated with oral mucosa. This condition is a result of a low albumin level which is indicative of malnutrition. Dr. Jill Roberson, who conducted the examination, stated to Ms. Sisler that Christina's condition had continued longer than two weeks and in all likelihood Christina had been starved. Dr. Roberson's medical diagnosis was failure to thrive.
        Dr. James Galbreth was child welfare's first witness. Dr. Galbreth testified that he examined Christina on July 16, 1987. Dr. Galbreth was then a physician at the Dallas Intertribal Center on a part time basis. Upon presentment of Christina at the Dallas Intertribal Center, Dr. Galbreth testified that the child was emaciated and looked as if she had been in a concentration camp. He described Christina as being tall enough, but with no muscle mass at all. Dr. Galbreth testified that Christina's mouth appeared to have a fungal disorder similar to thrush. Christina also had what Dr. Galbreth said appeared to be viral ulcers. Dr. Galbreth attributed the condition of Christina's mouth to be a compromised immune system, which in all likelihood was the result of a lack of oral intake. Further examination by Dr. Galbreth revealed that Christina weighed only 29 pounds, a weight which put her below the fifth percentile of other girls her age. Dr. Galbreth testified that it would have taken months for Christina to degenerate into the condition in which he found her. Based upon the serious condition of this child, Dr. Galbreth instructed the father to immediately take Christina to the Freeman Clinic of the Children's Medical Center of Dallas. There Christina was examined by Dr. Jill Roberson. Dr. Roberson was a pediatric resident at Children's Medical Center when Christina was brought to her on July 16, 1987. Dr. Roberson testified that upon presentment of the child, she believed that Christina could not talk. Dr. Roberson described Christina as lethargic and withdrawn. Dr. Galbreth had also noted the same concerns in his testimony calling Christina inappropriately withdrawn. Dr. Roberson testified that the child was suffering from what is commonly known as failure to thrive. Dr. Roberson conducted several tests. Dr. Roberson testified that she ruled out cystic fibrosis and diabetes among other diseases and believed Christina's decreased muscle mass and lack of subcutaneous tissue to be a result of simply not getting enough calories. Dr. Roberson testified that Christina's condition would have persisted longer than two weeks prior to her being brought in for examination.
        In addition to Drs. Galbreth and Roberson testifying to Christina's condition at this time, Heather Sisler also observed the child on July 16, 1987. Sisler testified that she was the intake caseworker for child welfare who investigated the referral that was received from Childrens Medical Center of Dallas. Upon locating Christina at the Freeman Clinic, Sisler described Christina as very thin with bony arms and legs. Sisler described Christina's eyes as being sunken in, and observed the child to be lethargic and listless having tremendous difficulty in even moving around. Sisler testified that during the course of her interview with the father, she observed blood trickling from the corners of Christina's mouth. Following Sisler's removal of Christina from parental custody, Christina appeared so weak that Sisler was concerned that the child would die. Like the other witnesses, Sisler also testified that Christina was quiet and withdrawn, appearing to not even have enough energy to speak. Rosa Bason was the child's foster mother from July of 1987 until November of 1987. Bason testified that the child was very weak upon moving into her home with the ability to only stagger around the house.
        We conclude that through the testimony of Dr. Galbreth, Dr. Roberson, Heather Sisler, and Rosa Bason, child welfare established that the child was in a very dangerous state of health at the inception of this case. A condition which Dr. Galbreth testified would definitely develop into a life threatening situation if not treated. We conclude that this evidence is legally sufficient to show that Christina's physical well-being was endangered. Hence, the issue becomes whether parental acts or omissions caused Christina's condition.
        On several occasions Christina revealed that food was being intentionally withheld from her. Sisler testified that Christina told her that she was not allowed to eat. Dr. Alfredo Tamez, the on-going caseworker for child welfare since September of 1987, testified that Christina told him that, "Mommy wouldn't feed me because I am too ugly and too dark and she wants me to die." Bason testified that Christina told her that her mother said she was not pretty, that her mother did not want her to eat so that she would die, and that her daddy got mad at her mommy for not giving her food. Eligio Ruiz, Jr., a caseworker for the Children and Adolescent Program for Dallas County Mental Health and Mental Retardation, provided counseling for Christina from February of 1988 through November of 1988. Ruiz testified that Christina was preoccupied with food and that she told him that food was not always readily available to her. Ruiz further testified that Christina told him that her mother would feed her brothers but not her. Dixie Bruce, an ordained methodist minister and past nurse for the Homeless Health Care Team for the City of Dallas Health Department, testified that in November of 1986 she had an occasion to provide physical examinations for the mother and her children through the Dallas Family Shelter. The mother permitted her three boys and herself to be examined, but refused for Christina to be examined. Bruce testified that even without formally examining Christina she could tell that Christina was suffering from impetigo as it was apparent from the skin condition on her face. Bruce also testified that she was very concerned that Christina was being neglected.
        "Endanger" as used in Texas Family Code section 15.02(1)(D) and(E) means to expose to loss or injury; to jeopardize. See Texas Dep't of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Specifically, it might appear at first glance that, as to the father, the evidence was legally insufficient to support the trial court's findings and that child welfare failed to meet its burden of proof by clear and convincing evidence. We refer to the fact that the father had been in prison for a period of time and had only been home about three weeks before he took Christina to the doctor. Thus, the question occurs as to the extent of the father's participation in endangering Christina. However, on close examination of the record, we note the unchallenged testimony of the witness Bason "that daddy got mad at mommy for not giving her [Christina] food." Therefore, we know that the father knew that the mother withheld food from the child, and yet did nothing about the matter but become angry with the mother. While endangerment means more than a threat of metaphysical injury or the possible ill effect of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at 533. Other cases have held that the conduct does not have to be directed at the child or cause him physical harm, as long as the conduct was committed in the child's presence and might endanger his physical or emotional well-being. See Stuart v. Tarrant County Child Welfare Unit, 677 S.W.2d 273, 279 (Tex. App.--Fort Worth 1984, writ ref'd n.r.e.); (Tex. App.--Austin 1983, no writ); Lane v. Jefferson County Welfare, 564 S.W.2d 130, 132-33 (Tex. App.--Beaumont 1987, writ ref'd n.r.e.). We conclude that the father's anger over food withheld from Christina, although not directed at Christina, was committed in the child's presence and might endanger Christina's emotional well-being. Thus, we conclude that "first glance" concerns as to the legal sufficiency of the evidence to support the trial court's adverse findings as to the father are unfounded. We reach the same conclusion as to "first glance" concerns as whether child welfare failed to meet its burden of proof by proof by clear and convincing evidence. Such concerns are likewise unfounded. Moreover, we conclude that evidence that Christina loved her father and was "bonded" to her father is of no import in considering whether the father's anger over food withheld from Christina by the mother might endanger Christina's emotional well-being. We reach this conclusion because the child might "love" the father or be "bonded" to the father all the while suffering the father's conduct endangering the child's emotional well-being. We reason that Christina might love and yet be dying inside emotionally from the father's conduct. "I love you father, why do you not feed me?" Significantly, the record is silent that the father actually took action to see that Christina obtained food. Hence, we conclude that the father's anger over food withheld is some evidence in support of the trial court's findings.
        After considering only the above evidence and inferences therefrom, we conclude that the evidence is legally sufficient to establish that (1) both the mother and father knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child and engaged in conduct which endangers the physical or emotional well-being of the child and that termination of the parent-child relationship between each parent and the child is in the best interest of the child. We overrule the mother's points of error one, three, five and six. Likewise, we overrule the father's points of error one, two, three, four and five insofar as they complain of the legal sufficiency of the evidence to support all challenged findings of the trial court. Moreover, we conclude that the above evidence and inferences therefrom constitutes proof by clear and convincing evidence. Therefore, we conclude that child welfare met its burden of proof necessary to involuntarily terminate both parents parental rights by clear and convincing evidence.
        Thus, we turn to our assigned task of deciding whether the evidence is factually sufficient to support the trial court's findings. In doing so, we must apply the instructions of Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980) as directed in Pool v. Ford Motor Co., 715 S.W.2d 629, 633-36 (Tex. 1986). We now provide the analysis of all the evidence which must be weighed and considered in deciding whether the evidence is factually sufficient to support the trial court's findings. The evidence in support of the trial court's findings is summarized above in our disposition of the no evidence points. On occasion we will repeat for background. Thus, we turn to the evidence contrary to the trial court's findings. In doing so, we first look to the evidence identified by the mother in her brief in support of her contention that the evidence is factually insufficient to support the trial court's findings. Second, we look to evidence identified by the father in his brief in support of his contention that the evidence is factually insufficient to support the trial court's findings.
        The facts in support of the mother's contentions begin with Dr. James Galbreth, a doctor who saw Christina on July 16, 1987, at the Dallas Intertribal Center, where the father took her because she had mouth sores. According to Dr. Galbreth, Christina looked malnourished and had a mouth problem that looked like thrush and viral ulcers. He testified that she was withdrawn, and that Christina's condition, in his opinion, was caused by lack of nutrition. This testimony was based merely on visual observations of Christina, not from any blood tests or lab work. Dr. Galbreth admitted that the father was very concerned for Christina when he brought her in for the initial visit. Dr. Roberson, a pediatric resident at Children's Medical Center, testified that Christina weighed 29 pounds the first time she saw her on July 16, 1987. The doctor concluded that Christina was malnourished because she wasn't taking in enough calories. Dr. Roberson admitted that he did not, however, know if Christina was deprived of food or just didn't want it. Dr. Galbreth stated that based on a reasonable medical probability, Christina should gain approximately 11 pounds from July 16, 1987 to March, 1988 (a period of eight months). However, after Christina had been in the care of child welfare for two weeks, there was no weight gain. At the end of three months, her weight was only up to 31 pounds--a net gain of only 2 pounds. Dr. Roberson testified that it was unusual that Christina didn't gain more weight once she was put in a situation where she received adequate nutrition. In fact, she gained only 8.8 pounds in more than a year and a half. Further, Christina, who had been borderline anemic in July of 1987, was more severely so in March of 1988. While Christina was in foster care, she had giardia, which can cause some weight loss through malabsorption. Dr. Roberson indicated that Christina's hygiene decreased during her first month in foster care--she had lice, scabies and a foul body odor. Dr. Roberson stated that Christina was not in immediate danger when she was removed from her home; that if she had been returned, the home situation could have been monitored, and that her condition wasn't serious enough to hospitalize her.
        There was testimony that Christina had always been thin and was a picky eater, but that she was adequately fed by her parents. The record shows that Christina always ate little, being very particular about her eating. The mother testified that after the father had gotten out of prison, she was "picking up aluminum" and that there was food for everyone to eat. During the last of June and the first part of July of 1987, when the sores came into her mouth, Christina became very weak and didn't want to eat. During this period, the mother fed everybody the same amount according to the food they had.
        Jose Diaz, a church caretaker who saw Christina weekly for the two to three months prior to her removal, testified that the mother had a normal relationship with her daughter--that she did not treat her any differently than she did her sons. He further testified that prior to Christina's removal, she was active and playful. Dillon Bowden testified that he had taken several meals with the family and that they always ate well. He went on to state that there was nothing to indicate that Christina was not being properly fed, that she was a picky eater, and that she had been thin since she was born. Bowden also stated that Christina was healthy and active, playing outside quite a bit and playing with her brothers.
        Dixie Bruce, an ordained United Methodist minister, worked as a nurse for the Homeless Health Care Team. In that capacity, she provided nursing services to the Dallas Family Shelter where she came into contact with Christina's family in October and November of 1986. As a matter of course, persons going into the shelter were to be examined. Bruce examined the mother's sons, but the mother stated that an examination of Christina was not necessary. The boys, when examined, had thrush. Christina also had thrush on her face. Christina was admitted to the shelter with the understanding that her facial condition would be treated along with the boys' conditions. At that time, Christina looked relatively normal, although withdrawn. She was weighed and no problems were noted in that regard--there was no indication that she was malnourished. Bruce stated that while she did not actually see Christina eat, she had food to eat. Further, although Bruce had made other referrals to child welfare, she did not believe Christina's condition was serious enough to warrant a referral.
        The father testified that, while he was in the Texas Department of Corrections for delivery of a controlled substance, his daughter had no idea that he was involved in drugs, and that he had never taken any drugs in her presence. The father took Christina to the doctor because of the sores in her mouth. He further testified that Christina had been slender all of her life, and that he had no knowledge that his wife had ever withheld food from her. Just prior to the time Christina was taken to the doctor, she was happy, and ran and played with her brothers. However, when she was taken to the doctor, she acted sick or "mopey." He went on to state that Christina would cry when her parents would leave after a visit; Dr. Tamez (the child's ongoing caseworker) had to "drag" her out of the room. The father also stated that child welfare did not offer any services to the parents, other than administering psychologicals. There were no parenting classes, no family training sessions and no joint therapy counseling, although the father offered to do whatever was necessary to get Christina back.
        Elena Argomaniz, a master's level psychologist, testified that she performed a psychological evaluation on Christina for Dallas County Mental Health and Mental Retardation. Argomaniz also testified that the results did not affirmatively indicate that food had been withheld. She went on to relate that there are possible explanations other than deprivation which could account for Christina's preoccupation with food, and that a slight developmental delay was not unusual in a bilingual child. Argomaniz went on to state that she would need to see the parents' tests in order to make a conclusion on whether Christina could have a healthy home environment.
        Eligio Ruiz, a case worker for Dallas County Mental Health and Mental Retardation with a bachelor's degree in psychology, was Christina's therapist. When Christina first came to therapy on February 4, 1988, she was withdrawn. When Christina would play with the dolls presented to her, she would place the different dolls in different rooms. Ruiz came to the conclusion that this indicated Christina felt isolated from her family members. He further assumed that her withdrawn behavior was due to inadequate stimuli when she was younger. However, Ruiz also admitted that Christina's withdrawnness, lack of openness and mistrust could possibly be due to the unfamiliar environment she had been in prior to seeing the therapist. Ruiz worked with Christina on "separation" issues to help her deal with her separation from her family. He indicated that once Christina bonds with someone, she has difficulty in not spending time with that person. Ruiz admitted that Christina does feel a bond with her mother and that she missed her brothers. He went on to note that Christina's psychologicals indicated that she was very well behaved, played in the playroom and was very verbal and expressive; that her behavior had taken a downturn from the time she went into foster care until she was put in therapy with him; and that she had gone from doing fair at the time of the testing in October of 1987 to doing badly in February of 1988. He further indicated that Christina appeared to be more open to trust a female.
        Sisler, the Texas Department of Human Services intake worker, recognized that there was an adequate amount of food in the home and that the other children were obviously well cared for in the home. However, Dr. Tamez admitted that he made no efforts to reconcile the family. Instead he decided to file for termination very quickly. This was because (1) of the child's age (Christina was of an age that there was an immediate need to secure an adoptive placement) and (2) because there were three male children who did not have weight problems, indicating that Christina was suffering from "maternal deprivation syndrome." Dr. Tamez further admitted that a large part of his determination that Christina would be endangered if returned home was based on Christina's statement that her mother had withheld food from her, and that if this were not true, then his assessment of the situation would be incorrect. Dr. Tamez admitted that Christina did not make any statements regarding nonfeeding to him. Dr. Tamez also expressed concern about the mother's reservedness with Christina during their visits and intimated that this indicated a problem between the mother and child. However, he also admitted that because he had taken Christina away, the mother might perceive the department and himself as enemies, which would have an adverse impact on her demeanor at the visits.
        Keeping the above-mentioned facts in mind, we now turn our consideration to the facts in support of the father's contentions. Dr. James Galbreth testified that the father brought Christina to his office on July 16, 1987. Dr. Galbreth stated that the father was genuinely surprised and concerned over his child's condition--immediately taking her to the hospital as instructed. The doctor asserted that there was nothing to indicate that the father had intentionally withheld food from his daughter. He went on to state that Christina was not in a life threatening situation and if her condition had remained the same it would have taken weeks or months before she would require hospitalization. Dr. Galbreth also testified that based on a reasonable medical probability, Christina should gain approximately 11 pounds if she were fed three times a day, seven days a week from the day she was taken, July 16, 1987, through March of 1988. Bason testified that she fed Christina five times a day when the child was placed in her care on July 16, 1987. Dr. Roberson testified that when she examined Christina in November of 1988, eight months after the March, 1988 date specified by Dr. Galbreth, she had gained only 8.8 pounds. Dr. Roberson agreed that it was unusual for Christina not to have gained more weight since she had been placed in an environment where the goal was for her to receive adequate nutrition. He also noted that the Christina's testing indicated that she suffered from more severe anemia in March of 1988 than she did in July of 1987. Bruce testified that she observed Christina and her family in October and November of 1986. Bruce, a qualified nurse with a B.S. in Nursing from West Texas State University, testified that she could not tell that Christina was malnourished by looking at her--there were no outward signs of malnourishment. Bruce also stated that she never observed Christina eat though food was provided.
        The father was incarcerated on December 9, 1986 for the delivery of a controlled substance, and did not see his daughter again until June of 1987. Dr. Galbreth testified that the father's incarceration was a remote factor, if any, as a reason for Christina's weight loss. The father testified that he visited with his children when possible and made arrangements to provide for his family. Dr. Tamez testified that there was no evidence that the father had ever withheld food from his daughter. Argomaniz, a master's level psychologist appointed to examine Christina, testified that her evaluation could not determine whether food was intentionally withheld or not. Dillon Bowden, a friend of the father for over fourteen years, testified that Christina had always been thin. The father has three sons in addition to Christina--two being younger than her. These children resided in the same conditions and surroundings as Christina. However, termination was never sought as to any of the other children. Dr. Tamez further testified that there was no evidence of abuse or neglect of Christina by the father.
        Dr. Tamez testified that the recommendation to terminate was made one month after taking Christina. He further testified that such recommendation was made even though there had been no efforts to return Christina to her home and no efforts to look at a possible family placement. Dr. Galbreth testified that Christina was very bonded to her father. Ruiz testified that Christina needed therapy to deal with her separation from her family. Ruiz further testified that Christina's mental condition deteriorated while she was in foster care. Argomaniz testified that Christina looked to her father as the provider for her family. Ms. Bason, Christina's foster parent, stated that Christina "really loved her daddy." Heather Sisler stated that the father and Christina were very well bonded and had a mutual good relationship.
        Considering all the evidence, we conclude that the evidence is factually sufficient to support the trial court's findings challenged by both the mother and the father. Considering and weighing all the evidence, we are unable to state in what regard the contrary evidence greatly outweighs the evidence in support of the findings. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). In the present case, therefore, we cannot hold that the trial court's findings challenged by both the mother and the father are factually insufficient. Moreover, we cannot hold that the trial court's findings challenged by both the mother and the father are so against the great weight and preponderance of the evidence as to be manifestly unjust, or that the trial court's findings challenged by the mother and father shock the conscience of this court or that the trial court's findings challenged by the mother and father clearly demonstrate bias. See Pool, 715 S.W.2d at 635. In short, we cannot agree to "unfind" the trial court's findings challenged by the mother and father and substitute our judgment for that of the trial court. We conclude, therefore, that the evidence is factually sufficient to support all of the trial court's findings challenged by the mother and father. We overrule the mother's points of error two, four and seven. We overrule the father's points of error one, two, three, four and five insofar as they challenge the factual insufficiency of the evidence in support of all challenged findings of the trial court.
        In her eighth point of error, the mother contends that the trial court erred in admitting into evidence hearsay statements made by Christina. The mother's complaint appears to focus upon two circumstances: first, evidence concerning Christina's attractiveness; and, second, evidence concerning the mother's appropriate feeding of Christina. First, the matter of Christina's attractiveness. Assuming that the mother complains that it was error to allow the witness Bason to testify that Christina at one time told her she was ugly, we note that there was no objection to this testimony. Hence, error, if any, was waived. Next, assuming that the mother complains that the witness Bason was allowed to testify over objection that the witness told Christina that Christina was not ugly, we fail to see that the witness is testifying to an out of court statement by Christina. Instead, the witness was testifying to what she, the witness, said to Christina. Therefore, in this respect, there was no hearsay testimony before the trial court. Second, the matter of the mother's appropriate feeding of Christina. The mother argues that it was error to allow the witness Cole to testify that the child told him: "Ah, [Christina] said that at time her mother would not, would feed her brothers, but not her. Would set a plate for her brothers but not for her, and she, the reason she told me was did not understand it, she didn't why that occurred." [Sic] For the purposes of this opinion, we assume, but do not decide, that the trial court erred in allowing Cole's testimony over the hearsay objection. Nevertheless, we conclude that the error did not amount to such denial of the rights of the mother as was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case. See Tex. R. App. P. 81(b)(1). We reach this conclusion because of the abundance of evidence from other witnesses that Christina said her mother would not feed her. We give some examples by quoting an earlier portion of this opinion:
        On several occasions the child revealed that food was being intentionally withheld from her. Sisler testified that the child told her that she was not allowed to eat. Dr. Alfredo Tamez, the on-going caseworker for child welfare since September of 1987, testified that the child told him that, "Mommy wouldn't feed me because I am too ugly and too dark and she wants me to die." . . . Eligio Ruiz, Jr., a caseworker for the Children and Adolescent Program for Dallas County Mental Health and Mental Retardation, provided counseling for the child from February of 1988 through November of 1988. Ruiz testified that the child was preoccupied with food and that she told him that food was not always readily available to her. Ruiz further testified that the child told him that her mother would feed her brothers but not her.
(emphasis added). The mother does not challenge the admissibility of this evidence. We overrule the mother's eighth point of error.
        In her ninth point of error, the mother contends that she was denied effective assistance of counsel. In doing so, the mother cites criminal cases grounded on Strickland v. Washington, 466 U.S. 668 (1984) and United States v. Cronic, 466 U.S. 648 (1984). The mother asks that we apply the principles enunciated in these and other criminal cases to this civil cause. The mother cites no authority holding that a parent may complain of ineffective assistance of counsel in a civil case such as the present case. We decline to so hold. We overrule the mother's ninth point of error.
        In his sixth point of error, the father contends that the trial court erred in admitting certain testimony which resulted in an improper judgment. The father's complaints center on: first, a witnesses' testimony concerning Christina's self-esteem allowed over objection; and second, witnesses' testimony concerning statements made to them by Christina. Nowhere does the father cite to the record as to where any evidence complained of may be found. Nowhere does the father cite to the record where any objection to the evidence complained of may be found. Rule 74(f) provides:
        A brief of the argument shall present separately or grouped the points relied upon for reversal. The argument shall include: (1) a fair, condensed statement of the facts pertinent to such points, with reference to the pages in the record where the same may be found; and (2) such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.
TEX. R. APP. P. 74(f) (emphasis added). In interpreting similar language in earlier rules of civil procedure, the courts have been specific as to the duty of the appellate courts to make an independent search of the statement of facts. It is not the duty of the court of appeals to make an independent search of the statement of facts. Saldana v. Garcia, 155 Tex. 242, 248, 285 S.W.2d 197, 201 (1955). This court is not required to search the record for evidence supporting a litigant's position under particular points of error, and in this case we refuse to so search. See Widmer v. Stamps, 663 S.W.2d 875, 880 (Tex. App.--Houston [14th Dist.] 1983, no writ). Because the father's statement of facts is not referenced to pages in the record concerning witness testimony and objections thereto, this court has no duty to independently search the statement of facts in an attempt to determine if the asserted error has merit. Crisp v. Southwest Bancshares Leasing Co., 586 S.W.2d 610, 614 (Tex. Civ. App.--Amarillo 1979, writ ref'd n.r.e.). The burden is on the litigant to show that the record supports its contentions and to point out the place in the record where matters complained of, or upon which the litigant relies, are shown. See Vapor Corp. v. Welker, 582 S.W.2d 858, 860 (Tex. Civ. App.--Beaumont 1979, no writ). "Rule 418(c) [a predecessor to current rule 74] makes plain the duty of counsel to support the points of error with a fair and condensed statement of facts pertinent thereto '. . . with references to the pages in the record where the same may be found. . . .'" Hale v. Ramsey, 524 S.W.2d 436, 438 (Tex. Civ. App.--Austin 1975, no writ) (emphasis in original). It is not the obligation of the appellate court to search out the statement of facts to discover the facts which might support a litigant's points of error. See Hale, 524 S.W.2d at 438. We conclude, therefore, that in the present case the references to certain errors are not supported by proper references to the record where evidence as to the grounds may be found. See Kropp v. Prather, 526 S.W.2d 283, 288 (Tex. Civ. App.--Tyler 1975, writ ref'd n.r.e.). The burden is on the litigant to show that the record supports its contentions and to point out the place in the record where the matters complained of are shown. See Kropp, 526 S.W.2d at 288. In the present case, as in Kropp, we do not believe that the rules require us to read through the entire record to determine whether the father's allegations have any validity. Kropp, 526 S.W.2d at 288. We conclude, therefore, that the father has failed to meet his burden. See Kropp, 526 S.W.2d at 288. See also Most Worshipful Prince Hall v. Jackson, 732 S.W.2d 407, 412 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). The majority (in Most Worshipful Prince Hall) correctly insist that appellee cannot thrust upon us the duty to search the record for evidence to support its position. Most Worshipful Prince Hall, 732 S.W.2d at 414 (Hecht, J., concurring). We overrule the father's sixth point of error. In doing so, we point out that we are not holding that the father waived his sixth point of error by failing to comply with the briefing requirements of rule 74. See Inpetco, Inc. v. Texas American Bank/Houston, 729 S.W.2d 300 (Tex. 1987). Furthermore, we point out that we are not reversing or affirming a trial court judgment for defects or irregularities in appellate procedure. See Inpetco, 729 S.W.2d at 300; Tex. R. App. P. 83. Therefore, we conclude that the Supreme Court's holding in Inpetco is inapplicable in the present case. We overrule the father's sixth point of error.
        Affirmed.
 
 
                                                          
                                                          WARREN WHITHAM
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
890287.U05
 
 
File Date[10-09-89]
File Name[890287]