IN THE INTEREST OF C.N AND V.N

Affirmed and Opinion filed November 30, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00467-CV
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IN THE INTEREST OF C.N AND V.N.
 
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On Appeal from the 330th District Court
Dallas County, Texas
Trial Court Cause No. 86-8690-Y
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O P I N I O N
Before Chief Justice Enoch and Justices Baker and Lagarde
Opinion By Chief Justice Enoch
        Appellants are the parents of C.N. and V.N., the children. After a non-jury trial, the court terminated parental rights and awarded custody of the children to the Dallas County Child Welfare Unit of the Texas Department of Human Resources. In four points of error, the mother, C.B., contends that there was no evidence, or alternatively, insufficient evidence to support the termination judgment, and that the trial court erred in denying due process. The father, L.N., in six points of error, also contends that the evidence is legally and factually insufficient to support the trial court's judgment terminating the parent-child relationship. We overrule all points of error and affirm the trial court's judgment.
        The record shows that appellants were married in 1964, separated in February 1986, and divorced in August 1986. Six children were born to that marriage. Four of the children are adults. The two minor children, C.N and V.N, are ages twelve and four, respectively. The minor children resided at home with their parents and with two older brothers, Omar and Jonathan, who are now adults. Omar has a history of drug use and burglaries and is currently in prison. A female cousin, who is now fourteen years of age, has also lived in the home for several years. C.B. remarried in 1987. The children's stepfather, Billy, has a history of criminal theft and is currently serving time in jail. An adult stepson, Ronald, who lived in the home with the minor children after the mother remarried, also has a criminal record.
C.B.'s Parental Rights
 
First report
        On April 9, 1986, Parkland Hospital contacted Child Welfare regarding V.N., who was nine months old. V.N. was brought into the hospital with an infected burn on her leg and a bruise on her forehead. When questioned, C.B. said that she was at work when the injury occurred and that L.N., who was drunk, was watching the children. According to C.B., she arrived home from work to find V.N. in her playpen, soaking wet and with a big welt on the back of her leg above the ankle. L.N. accused one of the older brothers of burning the child with a cigarette, but C.B. accused L.N. of lying and insisted the welt was a insect bite. C.B. treated V.N. herself for several days before seeking medical treatment at Parkland. C.B. then removed the child from Parkland against medical advice prior to completing the treatment explaining that she had to go on to work. Later, C.B., at least, obtained medication for her child.
Second report
        On September 22, 1986, the Dallas police referred C.N. and his cousin to Child Welfare. They had been caught shoplifting cigarettes and lighters from a nearby store. The children said that Omar sent them to the store to steal cigarettes for him. According to the referral, C.N. was about to cry when he thought the police were going to take him home. He said he was scared to go home without the cigarettes because his brother would beat him. C.N. also said that both his brothers would beat him if he refused to steal and, if he was caught, his parents would beat him. Additionally, C.N. reported that Omar would beat him, kick him, and throw him around the apartment, and that this happened all the time when his brother was mad at him. He said his mother left Omar to care for him when she worked. C.B. and Billy indicated to the caseworker that they were aware of the brothers coercing the children to steal and that it had not been the first time. During this referral, C.N. also reported abusive behavior by Omar toward V.N. He said that Omar would pour milk in V.N.'s mouth, and then hold her mouth and nose shut while she choked. The cousin reported that she had been sexually abused and hit by the older brothers, and that they were physically abusive toward V.N. She also said she saw C.N. sexually abuse V.N.
        When confronted, C.B. refused to believe these allegations. C.N. and his cousin were later released to C.B. As the family was leaving the emergency shelter, C.B. was observed whipping C.N. on the back side with a dog leash.
Follow up
        On October 9, 1986, a caseworker visited the home and described it as very messy and as a health hazard. However, C.B.'s home was noted as neat and clean on other visits. The caseworker and C.B. discussed the children's allegations of physical and sexual abuse by the older brothers. She testified that C.B. did not understand the significance of these allegations. C.B. accused the cousin of telling lies and asked C.N if he was a homosexual.
Third report
        On September 7, 1987, C.N. injured his arm when he fell off a swing in the school playground. His arm was bruised and swollen. The school nurse was unable to reach C.B., but left a message that the child had injured his arm. Observing the untreated injury, on September 16, 1987, the principal of the school contacted Billy at home and reported that C.N.'s arm needed medical attention. She told him she was concerned that the child was not using his arm and that he was in pain when he tried to turn it. Billy said that he would take the child to the doctor in a few weeks if the injury did not improve. In October of 1987, the school principal was notified by some of the other students' parents that C.N. was not using his arm when he played with their children. They were concerned that his arm was hurt. On October 19, 1987, C.N. went to school wearing an elastic bandage which his mother had wrapped around his arm. On October 22, 1987, C.B. called the school. She said that she took the child to a doctor who advised that C.N.'s arm needed to be re-broken in order to be properly set. C.B. said it was going to be expensive and inquired into whether the school would pay for this. On November 25, 1987, C.N. went to school wearing a cast on his arm.
        Billy called the principal on the day that C.N. was scheduled to see the doctor at Parkland hospital for his cast. The child was not at school that day. Billy inquired into C.N.'s grades and said he was going to "beat the daylights out of him" because he lied about his homework. The principal withheld the grades because she was fearful of what would happen to the child. She said she could hear the child in the background, through the telephone, screaming and yelling. The school informed Child Welfare of the situation.
Fourth report
        On March 28, 1988, the police brought C.N. to Child Welfare after they apprehended him for burglary. They believed he was in immediate danger of physical harm by his family. The child told the police that he was forced by Omar and Ronald to act as lookout during the burglary. He said that Ronald would hurt him if he refused. The child complained that Ronald would pinch and squeeze him in his crotch, and that it was very painful. The child had dark circles under his eyes, and he was afraid to go home because he feared retaliation from his family for talking with the police about the offense. When C.B. learned that C.N. was in custody for burglary of a habitation, a first degree felony offense, she appeared angry and asked the child what he told the police about the burglary. She also asked the child why he had talked with the police.
Follow up
        On March 30, 1988, and in a later interview, a child welfare intake worker talked to C.B. and Billy about the child's involvement in the burglary. At the time of the interview, Billy appeared to have been drinking heavily. The intake worker told them that C.N. indicated his brothers forced him to participate in the burglary. C.B. denied this and responded that the child was lying. She said that he probably committed the burglary by himself and that he was trying to cause trouble for Omar who already had a criminal record. C.B. protected the older brother rather than the child during the interviews.
        Concerning allegations of sexual abuse, C.B. said that she did not believe the cousin's allegations of sexual abuse by the older brothers. C.N. reiterated the cousin's allegations and said that his older brothers raped the cousin in the bathroom of their home. C.B. said the older brothers denied the allegations and she believed them. C.N. also admitted certain facts that established that he had sexually abused V.N. C.B., again, refused to believe this and she failed to ask V.N. or make any other inquiry.
Additional testimony
        The school psychologist testified that C.N. had an over-anxious disorder and responded to the world in a fearful manner. The child worried excessively and this interfered with his school performance. A psychologist evaluated V.N. on April 28, 1986. The child was depressed and withdrawn. She had been in a foster home for about a month, and had difficulty soliciting nurturing from the foster parents. She did not want to be picked up, held, or rocked and was unable to make attachments.
        A foster parent testified that C.N. wore a heavy jacket, even in very warm weather, and he would often cover his face. The child told his foster mother that his father would hit him with a board and that his stepfather would also whip him. He told her of being chased through the house by his mother and that he was very scared because she had a knife. He also described an incident where his mother had a gun and bullets. She had been drinking and she threatened to kill the stepfather. The child said his mother would whip him and that she would use a belt. He also told his foster mother that his older brothers would hit him before his mother got home from work and that he was whipped quite frequently.
        A volunteer for Foster Child Advocate Services talked with C.B. about caring for the children. C.B. said the children needed food, shelter, and caring, but C.B. did not address the children's need for protection. C.B. explained that she felt like she had no choice in allowing the older boys back into the home because they had nowhere else to stay. The volunteer testified that C.B. was unable to protect her children. She said she believed that C.B. knowingly allowed the children, on a repeated basis, to be placed in situations which endangered their mental health and well-being.
        In April of 1988, Child Welfare assigned an on-going caseworker to supervise the case. The children were in foster care at that time. The caseworker testified that C.B. denied responsibility for what happened to the children when she was at work and not at home. She said that C.B. failed to protect the children by consistently leaving them with persons who endangered them, particularly, the older brothers, the stepbrother, and the stepfather. She also said that C.B. deliberately subjected the children to situations where criminal acts were performed because C.B. continued to place the children in situations where she knew criminal acts happened in the past and would continue to happen. The caseworker testified that if the children were returned to either C.B. or their father, they would be endangered.
        A therapist at the Dallas Child Guidance Clinic had seen C.B. beginning July of 1988. C.B. quit therapy and walked out of the fourth session in anger. The therapist described C.B. as hostile and unresponsive during the sessions. She said that C.B. had a poor prognosis, was not motivated to change, and had no interest in therapy.
L.N.'s Parental Rights
 
Investigation
        On April 6, 1988, a Child Welfare intake caseworker talked with L.N. L.N. described Billy as a dangerous man who used a shop as a front for stolen merchandise. He said that Billy and Omar were heavily involved in major thefts and that they would use teenagers to steal things for them. L.N. testified that he did not trust Omar with the children. He also said that Omar is very abusive to the children and dangerous. He talked about the burn on the baby's leg and said that Omar is capable of anything when he is smoking or shooting up drugs. L.N. refused to believe the sex abuse allegations concerning the children's older brothers, although he did say that one of them once tried to rape an older sister.
Follow up
        In June of 1988, a caseworker for the Department of Human Services in Oklahoma evaluated L.N.'s home. He was living in a two bedroom trailer house in a rural area. There was no running water, no air conditioning or heat, no food, and only one bed. She said that the bathroom was in terrible condition and that it had no running water. In addition, L.N. had no verifiable means of support.
Additional testimony
        A psychologist at Dallas Child Guidance testified concerning the evaluation of L.N. L.N.'s profile was described as defensive and quite guarded. L.N. has a strong tendency to deny conflicts and is unable to recognize problems when they arise. The psychologist testified that, in certain circumstances, the children would be in a position of peril if L.N. continued to deny problems and conflicts. L.N. admitted to using a drug similar to opium from 1967 to 1969 and further admitted to being an alcoholic.
        C.B. testified that before the divorce, L.N. would drink all day and that the bills were not paid. She said that he had no parenting skills and she instructed the children to call her at work if he began bothering them when he was drunk. On one occasion, L.N. pulled a shotgun on the older brothers and threatened to "blow their brains out." On another occasion, the family had to rush out of the house because L.N. was firing a handgun inside. A second shooting incident occurred on a New Year's Eve when L.N. fired one of the shotguns through the kitchen wall. C.B. said that L.N. was abusive to the children and that she would be afraid for their safety if they were placed with him. She explained that, in the past, he has pointed a gun at the children and has chained some of them up for as much as two days as punishment.
Clear and convincing standard
        The natural right existing between parent and child is of constitutional dimension, and, consequently, involuntary termination proceedings must be strictly scrutinized. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re G.M., 596 S.W.2d 846 (Tex. 1980). For these reasons, the Texas Supreme Court has held that the evidence in support of termination must be clear and convincing before a court may render judgment for involuntary termination. Holick v. Smith, 685 S.W.2d at 20; Richardson v. Green, 677 S.W.2d 497, 500 (Tex. 1984). By clear and convincing evidence, we mean that measure or degree of proof which 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. In re G.M., 596 S.W.2d at 847.
        Section 15.02, which provides for involuntary termination of parental rights, states in pertinent part:
                A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
 
        (1) the parent has:
 
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                (D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
 
                (E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
 
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        and in addition, the court further finds that
 
        (2) termination is in the best interest of the child.
Tex. Fam. Code Ann. §15.02 (Vernon 1986). In order to terminate parental rights under section 15.02, there must be both a finding that the parent has committed one of the enumerated acts under section 15.02(1), and a finding that termination is in the best interest of the child. Richardson v. Green, 677 S.W.2d at 499.         
        In reviewing the sufficiency of the evidence under the clear and convincing standard, it is the duty of the appellate court to determine not whether the fact finder could reasonably conclude that the existence of a fact is more probable than not, as in ordinary civil cases, but whether the trier of fact could reasonably conclude that the existence of a fact is highly probable. Wetzel v. Wetzel, 715 S.W.2d 387, 389 (Tex. App.--Dallas 1986, no writ); Neiswander v. Bailey, 645 S.W.2d 835, 836 (Tex. App.--Dallas 1982, no writ).         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 must consider all of the evidence in favor of and contrary to the challenged finding to ascertain if the finding is supported by clear and convincing evidence. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980).
        Applying these principles, we must first determine if there is evidence of probative value to support the trial court's findings. 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).
        In her second point of error, C.B. asserts that there was no evidence, or alternatively, insufficient evidence to show that she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being. 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.
        C.B. argues that involuntary termination is frequently based on affirmative acts of parents committing physical or sexual abuse on the children. She contends that the proof fails to show that she performed such affirmative acts, under the clear and convincing standard. We interpret section 15.02(1)(E) to mean exactly what it says: that the parent engaged in conduct or knowingly placed the children with persons who engage in conduct which endangers the child's physical or emotional well-being. Tex. Fam. Code Ann. § 15.02(1)(E). Subsection (1)(E) does not require physical abuse by the parent directed toward the child.         In re S.H.A., 728 S.W.2d 73,86 (Tex. App.--Dallas 1987, no writ); In re C.D., 664 S.W.2d 851, 853 (Tex. App.--Fort Worth 1984, no writ).
        The evidence in the record shows that C.N. and V.N. were physically and sexually abused by others on a number of occasions. Evidence presented before the bench demonstrated that there was both emotional and physical danger to the children from the conduct of their older brothers. C.B. knew that the children were abused by their older brothers, but she failed to do anything substantive to stop it. C.B. continued to allow the children's abusive brothers to live in the home and babysit the children in her absence. C.B. failed to adequately protect her children from physical and sexual abuse by others even though she had been informed about the abuse by Child Welfare authorities and by the children.          Evidence of C.B.'s awareness of sexual abuse of her children and of her failure to adequately protect her children despite physical and emotional abuse by others is sufficient to warrant terminating C.B.'s parental rights. In re L.S., 748 S.W.2d 571, 575 (Tex App.--Amarillo 1988, no writ); In re A.C., 758 S.W.2d 390, 393 (Tex. App.--Fort Worth 1988, no writ).
        In addition, C.B. affirmatively engaged in conduct which endangered the physical well-being of the children in that she did not seek appropriate medical treatment for the children. "Conduct" under subsection 15.02(1)(E) may be supported by evidence of behavior which results in gross neglect of the child. In re S.H.A., 728 S.W.2d at 85; Melton v. Dallas County Child Welfare, 602 S.W.2d 119,121 (Tex. Civ. App.--Dallas 1980, no writ). C.B. removed V.N from Parkland hospital, against medical advice, before the child received complete medical treatment for a burn on her leg, a burn left untreated for several days. When C.N. injured his arm, C.B. waited six weeks before seeking medical attention for the child's injury. After considering only the above evidence and inferences therefrom, we conclude that the evidence is sufficient to support the trial court's finding, under subsection 15.02(1)(E), that C.B. engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children.
        We now turn to the task of deciding whether the evidence is factually sufficient to support the trial court's finding. In determining that question, this Court must consider and weigh all the evidence, including any evidence contrary to the trial court's judgment. Burnett v. Motyka, 610 S.W.2d at 735. The evidence in support of the trial court's finding is summarized above in our disposition of the "no evidence" point. Thus, we turn to the evidence contrary to the trial court's findings. C.B. testified that she would refuse to allow the older brothers back into the home, and that she would divorce her current husband, Billy because of his criminal record and its negative influence on the children. She also said that she would find a babysitter for the children when she was at work. The trial judge had the discretion to pass on the credibility of her words, in securing a future, stable environment for the children in light of her past actions. After reviewing the entire record, we conclude that the evidence is factually sufficient to support the trial court's finding.
        In her third point of error, C.B. contends that there was no evidence, or alternatively, insufficient evidence to show that it would be in the best interest of the children to terminate her parental rights. In making a determination of whether termination is in the best interest of the child, the fact finder may consider a number of factors, including, but not limited to: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist in promoting the best interest of the child; (F) the plans for the child by the individuals or agencies seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the act or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
        Evidence presented at trial demonstrated that C.B. failed to protect the children and knowingly allowed the children, on a repeated basis, to be placed with persons who endangered their mental health and well-being. A school psychologist testified that C.N. had an over-anxious disorder, that he worried excessively and responded to the world in a fearful manner. V.N. was described as depressed and withdrawn and had difficulty soliciting nurturing from others. In addition, C.B. failed to seek appropriate medical treatment for V.N's burned leg or C.N.'s injured arm. The record reflects that C.B. had no interest in therapy, and was not motivated to change. After considering only the above evidence and inferences therefrom, we conclude that the record contains clear and convincing evidence that termination of C.B.'s parental rights is in the best interest of the children.         
        We now decide whether the evidence is factually sufficient to support the trial court's findings that termination of C.B's parental rights is in the children's best interest. The evidence in support of the trial court's findings is summarized above in our disposition of the "no evidence" point. Thus, we turn to the evidence contrary to the trial court's findings. C.N.'s foster mother testified that C.N. loved his mother, and wanted to see her while in foster care. She admitted that termination of parental rights would not necessarily end C.N.'s problems, and that C.N. was involved in a possible arson and burglary with another boy while in foster care. C.B. testified she ejected Omar from the house after learning about the incident in which C.N. was coerced into a burglary. C.B also set forth her plans to provide the children with an appropriate babysitter in her absence.
        Considering 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, 653 (Tex. 1986). We conclude that the evidence is factually sufficient to support the trial court's findings that termination of C.B.'s parental rights is in the best interest of the children. Appellant's third point of error is overruled.         
        In her first point of error, C.B. asserts that there was no evidence, or alternatively, insufficient evidence to show that she knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being. Proof of just one of the acts enumerated in section 15.02, when coupled with sufficient proof that termination is in the best interest of the children, will sustain the proponent's burden of proof. Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex. 1976); Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 678 (Tex. App.--Fort Worth 1984, writ ref'd n.r.e.). We have determined that the evidence in this case is sufficient to support the trial court's findings under section 15.02(1)(E), as well as subsection 2 of 15.02. Therefore, even if the evidence is insufficient to support the trial court's finding under subsection 15.02(1)(D), this error would not require reversal of the trial court's judgment. See Tex. R. App. P.81(b)(1). Appellant's first point of error is overruled.
        In her fourth point of error, appellant claims that there was a denial of due process because the stepfather, who she claims is the biological father of V.N., was not given notice in this cause. We assume without deciding, that C.B. has standing to raise this issue, therefore, we will address the merits of her point of error.
        A child is rebuttably presumed to be the legitimate child of a man if the child is born during the marriage of or within the period of gestation following the dissolution of the marriage of the man and the mother of the child. Tex. Fam. Code Ann. §12.02(a) (Vernon Supp. 1989). The presumption is one of the strongest known to the law and can generally only be rebutted by clear and convincing evidence showing nonaccess by or impotency of the husband. D.W.L. v. M.J.B.C., 601 S.W.2d 475,477 (Tex. Civ. App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.). A blood test which positively excludes the alleged father is also clear and convincing evidence of non-paternity. In re S.C.V., 750 S.W.2d 762, 764 (Tex. 1988); Tex. Fam. Code Ann. § 12.06(b) (Vernon 1986); Tex. Fam. Code Ann. § 13.05(a) (Vernon 1986). In any suit in which a question of paternity is raised, the husband or wife who is denying the paternity of the child has the burden of rebutting the presumption of legitimacy. Tex. Fam. Code Ann. § 12.06(c) (Vernon Supp. 1989).
        The record reflects that appellant L.N. was married to C.B. at the time of the child's conception and birth and that appellants divorced about four months later. Therefore, V.N. is presumed to be appellants' legitimate child. L.N. testified he believed that V.N. was not his daughter. He said that C.B. had been having affairs with other men. C.B. also made a similar statement. The fact that they made these statements does not rebut the presumption of the child's legitimacy with clear and convincing evidence.
        C.B. should have filed suit to rebut the presumption of section 12.02(a) that V.N. is the legitimate child of the legal father. In re S.C.V., 750 S.W.2d at 764. Further, once the presumption had been rebutted, she should have established the paternity of the alleged biological father. Because C.B. failed to establish the alleged biological father's paternity, due process did not require that he have notice of the termination proceeding. C.B.'s fourth point of error is overruled.
        In his second and fifth point of error, L.N. asserts that the evidence is legally and factually insufficient to show that he engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being. Since L.N. raises both "no evidence" and "insufficient evidence" points of error, this Court shall rule upon the "no evidence" point first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d at 401. 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.
        The record reflects that L.N. had knowledge of actions by Omar and Billy which endangered the physical and emotional well-being of the children. Although L.N. and C.B. were separated in February 1986, they were not divorced until August 1986. L.N. was babysitting the children on April 9, 1986, at the time Omar burned V.N.'s leg. L.N. did not seek any medical treatment for the child's burn. He testified that he was aware of physical and mental abuse that the children were forced to endure. The father moved to California in August of 1986, and left the children. L.N. allowed the children to remain in the company of those he knew had abused the children, and this provides a basis for termination under subsection 15.02(1)(E). In re A.C., 758 S.W.2d at 393. In addition, L.N. affirmatively engaged in conduct which endangered the physical well-being of the children when he fired guns in the home. After considering only the above evidence and inferences therefrom, we conclude that there is clear and convincing evidence to support the trial court's finding terminating L.N.'s parental rights under subsection 15.02(1)(E). We overrule appellant's second point of error.
        We now decide whether the evidence is factually sufficient to support the trial court's finding terminating L.N.'s parental rights under subsection 15.02(1)(E). The evidence in support of the trial court's findings is summarized above in our disposition of the no evidence points. Thus, we turn to the evidence contrary to the trial court's findings. The record reflects that L.N. inquired about obtaining custody of C.N., but not of V.N., on one occasion but took no further action. In addition, L.N. testified that he was not permitted to contact the children because he had not paid child support. When we consider all the evidence under the applicable standard of review, we are unable to state in what regard the contrary evidence greatly outweighs the evidence in support of the findings. We hold that the evidence is sufficient to support the trial court's findings under section 15.02(1)(E), that L.N. engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children. We overrule appellant's fifth point of error.
        In his third and sixth points of error, L.N. contends that the evidence is legally and factually insufficient to show that it would be in the best interest of the children to terminate his parental rights. There are a number of factors which may be considered in ascertaining the best interest of the children. See Holly v. Adams, 544 S.W.2d at 372.
The court shall rule upon appellant's "no evidence" point first. 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.
        The record reflects that L.N.'s existing parental relationship with the children was not a proper one. He has a history of violence and lacks adequate parenting skills in that he has disciplined the children with guns and chains. L.N. has had no verifiable means of support for several years and he admitted that he is unable to properly care for V.N. He failed to protect the children and knowingly allowed them to remain with persons who engaged in conduct which endangered the children's physical and emotional well-being. In June of 1988, L.N. was living in a two bedroom trailer house with no running water, no air conditioning, no heat, no food, and only one bed. In addition, the children's older brother Jonathan, lives with L.N. in the two bedroom trailer. L.N. testified that Jonathan is dangerous to a certain extent. After considering only the above evidence and inferences therefrom, we conclude that the record contains clear and convincing evidence to support the trial court's finding that termination of L.N.'s parental rights is in the children's best interest. We overrule appellant's third point of error.
        Thus, we now decide whether the evidence is factually sufficient to support the trial court's finding that terminating L.N.'s parental rights is in the children's best interest. The evidence in support of the trial court's finding is summarized above in our disposition of the no evidence point. Thus, we turn to the evidence contrary to the trial court's findings. L.N. has been employed for two months. He has painted the trailer and hooked up the running water and heat. L.N. said he would attend support groups for his problem with alcoholism and that he would refuse to allow Jonathan reside in the home. After reviewing the entire record, we are unable to state in what regard the contrary evidence greatly outweighs the evidence in support of the findings. Considering all the evidence, we conclude that the evidence is factually sufficient to support the trial court's finding that termination of L.N.'s parental rights in the children's best interest. We overrule appellant's sixth point of error.
        In his first and fourth points of error, L.N. asserts that the evidence is legally and factually insufficient to show he placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being. Proof of just one of the acts enumerated in section 15.02, when coupled with sufficient proof that termination is in the best interest of the children, will sustain the proponent's burden of proof. Wiley v. Spratlan, 543 S.W.2d at 351; Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d at 678. We have determined that the evidence in this case is sufficient to support the trial court's findings under section 15.02(1)(E), as well as subsection 2 of 15.02. Therefore, even if the evidence is insufficient to support the trial court's finding under subsection 15.02(1)(D), this error would not require reversal of the trial court's judgment. See Tex. R. App. P. 81(b)(1). Appellant's first and fourth points of error are overruled. The trial court's judgment is affirmed.
 
 
                                                                                                                            CRAIG TRIVELY ENOCH
                                                          CHIEF JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
890467.U05
 
 
File Date[11-30-89]
File Name[890467]