Hodsoll Skipper and Nancy Skipper v. Texas Department of Human Services--Appeal from 126th District Court of Travis County

SKIPPER-final IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-117-CV
HODSOLL SKIPPER AND NANCY SKIPPER,

APPELLANTS

 
vs.
TEXAS DEPARTMENT OF HUMAN SERVICES,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. 494,316, HONORABLE PETE LOWRY, JUDGE PRESIDING

Hodsoll Skipper appeals from a final judgment terminating his parental rights with respect to his two children, Charlie and Rhiana. The trial court also terminated the parental rights of the children's mother, Nancy Skipper, and named the Texas Department of Human Services permanent managing conservator for the two children. We will affirm the trial court's judgment.

Nancy Skipper perfected an appeal in this cause; however, she subsequently filed, in the district court, a motion to dismiss the appeal and to withdraw her affidavit of inability to pay costs. See Tex. R. App. P. 59(a)(1)(B) (voluntary dismissal of appeal). Ms. Skipper has neither filed a brief in this cause nor raised any points of error. Accordingly, on our own motion, we dismiss Nancy Skipper's appeal.

BACKGROUND

In February 1987, the Texas Department of Human Services (1) (the "Department") received a referral regarding an incident of family violence in the Skipper home. The incident involved alleged physical violence and threats of violence by Mr. Skipper toward his wife and his daughter. Allegedly, Mr. Skipper had struck his daughter in the face, had beaten Ms. Skipper, had threatened to kill himself and the children in a car accident, and had made other threats toward his daughter. The Department investigator observed a volatile argument between the parents and bizarre behavior by Mr. Skipper, including another threat of suicide. The parents admitted prior use of heroin, cocaine, and other drugs. The investigator was also told that the children had been previously removed temporarily when the family lived in South Carolina. The Department placed the children in protective custody.

The Department then initiated this cause in Williamson County. A show-cause hearing was conducted, and the Department was named temporary managing conservator for the children. An attorney ad litem was appointed to represent the interests of the children. Upon the Skippers' agreement to work with the Department and to follow its service plan and recommendations, the Department returned the children to the home.

Approximately one month later, in March 1987, the mother requested that the children be placed in foster care to protect them from their father's violence. The mother's request came after she had fled to a center for battered women because of another violent incident initiated by Mr. Skipper. The Department placed the children in a foster home. After further counseling work with the Skippers, the Department returned the children to the home in June 1988.

In June 1989, the Department received another referral after Ms. Skipper had been admitted to Brackenridge Hospital because of injuries allegedly inflicted by Mr. Skipper and an overdose of drugs. There were also allegations that a boyfriend of Mr. Skipper's sister had sexually abused Rhiana. The children were again removed from the home and have since remained in foster care. The parents were allowed supervised visitation and ordered to pay twenty-five dollars per month in child support.

In November 1990, Ms. Skipper filed for divorce in Travis County. In January 1991, on the Department's motion, this cause was transferred to Travis County and consolidated with the divorce cause. In September 1991, after a non-jury trial, the trial court terminated the parental rights of both parents and named the Department permanent managing conservator of the children. The trial court also granted a decree of divorce to the parents. Mr. Skipper appeals the order of termination and urges five points of error.

 
DISCUSSION
Findings of Fact and Conclusions of Law

In his first point of error, Mr. Skipper contends the trial court erred in failing to file findings of fact and conclusions of law. At the time Mr. Skipper filed his brief, the trial court had not filed findings of fact and conclusions of law. Subsequently, however, the trial court cured this omission.

Mr. Skipper requested findings of fact and conclusions of law on January 27, 1992, and filed a notice of past due findings of fact and conclusions of law on February 20, 1992. See Tex. R. Civ. P. 296, 297. On February 27, 1992, Mr. Skipper perfected this appeal. At some point, the Department sent proposed findings of fact and conclusions of law to the trial court. However, the trial court did not act on these until November 19, 1992. These findings and conclusions have been forwarded to this Court by supplemental transcript. See Tex. R. App. P. 55(b). Mr. Skipper did not object to the Department's proposed findings of fact and conclusions of law or submit alternative findings and conclusions to the trial court. Mr. Skipper has neither moved to strike these findings and conclusions from the record nor amended his brief to address any inaccuracies in the findings and conclusions.

The failure to file findings of fact and conclusions of law, if properly requested, is reversible error, unless the record shows no harm resulted. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). However, an appellate court may consider late findings of fact and conclusions of law absent a motion to strike and a showing of harm. Narisi v. Legend Diversified Invs., 715 S.W.2d 49, 50 n.2 (Tex. App.--Dallas 1986, writ ref'd n.r.e.); see also Summit Bank v. The Creative Cook, 730 S.W.2d 343, 345 (Tex. App.--San Antonio 1986, no writ).

In this case, findings of fact and conclusions of law were filed after Mr. Skipper filed his brief. Mr. Skipper has taken no action to strike these findings and conclusions or to challenge, in an amended brief, the late filing or the substance of the findings and conclusions. Accordingly, we conclude that these findings and conclusions are properly before this Court for consideration and that the record shows no harm to Mr. Skipper because of their late filing. See Ford v. Darwin, 767 S.W.2d 851, 856 (Tex. App.--Dallas 1989, writ denied); Morrison v. Morrison, 713 S.W.2d 377, 381 (Tex. App.--Dallas 1986, writ dism'd); Labar v. Cox, 635 S.W.2d 801, 803 (Tex. App.--Corpus Christi 1982, writ ref'd n.r.e.); Gomez v. Gomez, 577 S.W.2d 327, 330 (Tex. Civ. App.--Corpus Christi 1979, writ ref'd n.r.e.); see also Anderson v. Smith, 635 S.W.2d 204, 206-07 (Tex. App.--Houston [1st Dist.] 1982, no writ) (point of error complaining of trial court's failure to file findings and conclusions moot after late filing of findings and conclusions). We overrule Mr. Skipper's first point of error.

 
Sufficiency of the Evidence

In his fourth and fifth points of error, Mr. Skipper contends that the evidence was legally and factually insufficient to support termination of his parental rights under section 15.02 of the Texas Family Code or to support a determination that termination was in the best interest of the children.

A court may terminate a parent-child relationship if it finds that the parent engaged in any of the specified conduct set out in section 15.02(1) and that termination is in the best interest of the child. Tex. Fam. Code Ann. 15.02 (West Supp. 1993); Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Smith v. Sims, 801 S.W.2d 247, 251-52 (Tex. App.--Houston [14th Dist.] 1990, no writ).

The trial court found that:

 

72. HODSOLL M. (BUDDY) SKIPPER knowingly placed or allowed the child, CHARLIE SKIPPER to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, CHARLIE SKIPPER.

 

73. HODSOLL M. (BUDDY) SKIPPER engaged in conduct or knowingly placed the child, CHARLIE SKIPPER with persons who engaged in conduct which endangered the physical or emotional well-being of the child, CHARLIE SKIPPER.

 

74. HODSOLL M. (BUDDY) SKIPPER failed to support the child, CHARLIE SKIPPER in accordance with his ability during a period of one year ending within six months of filing of the petition.

 

75. Termination of the parent-child relationship between HODSOLL M. (BUDDY) SKIPPER and CHARLIE SKIPPER is in the best interest of the child, CHARLIE SKIPPER.

 

76. HODSOLL M. (BUDDY) SKIPPER knowingly placed or allowed the child, RHIANA SKIPPER to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, RHIANA SKIPPER.

 

77. HODSOLL M. (BUDDY) SKIPPER engaged in conduct or knowingly placed the child, RHIANA SKIPPER with persons who engaged in conduct which endangered the physical or emotional well-being of the child, RHIANA SKIPPER.

 

78. HODSOLL M. (BUDDY) SKIPPER failed to support the child, RHIANA SKIPPER in accordance with his ability during a period of one year ending within six months of filing of the petition.

 

79. Termination of the parent-child relationship between HODSOLL M. (BUDDY) SKIPPER and RHIANA SKIPPER is in the best interest of the child, RHIANA SKIPPER.

 

See Tex. Fam. Code Ann. 15.02(1)(D), (E), (F), (2) (West Supp. 1993).

If a party believes findings of fact filed in support of a judgment to be incorrect or incomplete, the party should request specified, additional, or amended findings. Tex. R. Civ. P. 298; James Holmes Enters., Inc. v. John Bankston Constr. Equip. Rental, Inc., 664 S.W.2d 832, 834 (Tex. App.--Beaumont 1983, writ dism'd); Lettieri v. Lettieri, 654 S.W.2d 554, 556 (Tex.App.--Fort Worth 1983, no writ). If the findings of fact are not excepted to and assigned as erroneous, the findings will constitute undisputed facts binding on all parties and will be sustained if there is any evidence in the record to support them. James Holmes Enters., 664 S.W.2d at 834; Payne v. City of Tyler, 379 S.W.2d 373, 376 (Tex. Civ. App.--Tyler), writ ref'd n.r.e., 383 S.W.2d 804 (Tex. 1964).

The trial court's findings of fact reflect a history of violent behavior and threats by Mr. Skipper toward Ms. Skipper and the children, threats of suicide by Mr. Skipper, and threats against third parties. The trial court found that Mr. Skipper had a history of severe drug abuse, that he had failed to complete programs designed to cure his drug problems, and that he would continue to use methadone for the rest of his life. The trial court found indications that Mr. Skipper continued to use illegal drugs after the Department intervention and that he evaded drug tests. The trial court found Mr. Skipper made statements to the children that endangered them emotionally, including disparaging comments about their mother and instructions not to tell Department caseworkers about problems in the home. The court found that Mr. Skipper had a history of unstable residency, including a period of living in his car, and that he had not made progress in improving stability in his lifestyle. Based on these underlying facts, the trial court found that Mr. Skipper had "knowingly placed or knowingly allowed [the children] to remain in conditions or surroundings which endangered the physical or emotional well-being" of the children, and had "knowingly 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. The court also found that terminating Mr. Skipper's parental rights would be in the best interest of the children. We conclude that these unchallenged findings are sufficient to support the trial court's conclusion that Mr. Skipper's parental rights should be terminated pursuant to section 15.02.

However, in light of the late-filed findings of fact, it may be appropriate that we consider Mr. Skipper's fourth and fifth points of error as challenges to the sufficiency of the evidence to support the individual findings of fact.

Section 11.15(b) of the Texas Family Code requires that in a suit to terminate the parent-child relationship, each required finding must be based on clear and convincing evidence. Tex. Fam. Code Ann. 11.15(b) (West 1986); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); Neal v. Texas Dep't of Human Servs., 814 S.W.2d 216, 222 (Tex. App.--San Antonio 1991, writ denied). This standard requires a "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. The clear and convincing standard of proof to terminate parental rights, however, does not alter the appropriate standard of appellate review. We recently rejected an intermediate standard of appellate review in a termination-of-parental-rights case. See D.O. v. Texas Dep't of Human Servs., 851 S.W.2d 351, 354 (Tex. App.--Austin 1993, no writ).

We attach to findings of fact the same weight that we attach to a jury's verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex. Civ. App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.). Findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards used to review jury findings. Okon v. Levy, 612 S.W.2d 938, 941 (Tex. Civ. App.--Dallas 1981, writ ref'd n.r.e.) (citing Hall v. Villareal Dev. Corp., 522 S.W.2d 195 (Tex. 1975)). In reviewing the sufficiency of the evidence, we shall not substitute our judgment for that of the fact finder. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984). When both no-evidence and factual insufficiency complaints are raised, we must first examine the legal sufficiency of the evidence. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981).

In deciding a no-evidence point, we must consider only the evidence and inferences tending to support the findings of the trier of fact and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986), cert. denied, 111 S. Ct. 135 (1990); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); see generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991).

When reviewing the factual sufficiency of the evidence to support the findings of the trier of fact, we must consider and weigh all the evidence and should set aside the judgment 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); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951); see also Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986). See generally Powers & Ratliff, supra.

As stated above, section 15.02(1) lists specific types of parental conduct which are sufficient grounds to terminate the parent-child relationship. The supreme court has set out a non-exhaustive list of factors which may be considered in determining when termination is in a child's best interest:

 

(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 these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency 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 acts or omissions of the parent.

 

Holley, 544 S.W.2d at 372 (footnotes omitted).

The evidence reflects that the family's problems and Mr. Skipper's violence and threats were at least partly the result of extensive abuse of drugs, including heroin, cocaine, and prescription painkillers. Ms. Skipper also abused some of these drugs. Although Mr. Skipper disavowed any current drug use other than methadone, supplied as part of his drug treatment program; other drugs prescribed to treat his back injury; and occasional marijuana use, other witnesses disputed this testimony. The evidence shows the Skippers failed and refused drug tests and failed to complete or were expelled from many of the drug treatment and counseling sessions recommended by Department caseworkers.

The evidence shows inconsistent attendance by the Skippers at their visitation with the children and continued family conflict. Although ordered to do so, the Skippers have completely failed to make any child support payments during the pendency of this cause.

The evidence shows that the parents continue to live a very unstable life and that neither has maintained a residence sufficient for the children. At the time of trial, Mr. Skipper lived in a one-bedroom apartment. Mr. Skipper admitted that he would need a larger home to care for the children, but that he had made no effort to secure larger accommodations. He proposed continuing foster care of the children for several months until he could make these arrangements. Ms. Skipper was incarcerated for a probation violation at the time of trial.

Mr. Skipper was in a methadone program at the time of trial. He stated that he took methadone for his back injury because other pain medication had caused him adverse side effects. There was expert testimony that methadone is generally used in drug-abuse treatment programs as a substitute for abused drugs and not as a pain medication, that methadone is itself addictive, and is usually gradually phased down in dosage. The evidence showed Mr. Skipper maintained a high methadone dosage with no reduction during his time in the program. Moreover, evidence shows that Mr. Skipper continued to abuse illegal drugs after the Department's intervention.

Mr. Skipper made comments to the children that undermined their development and progress in dealing with their situation, including threats against caseworkers, threats of suicide, and derogatory comments about Ms. Skipper and the foster parents.

Several mental health professionals testified as experts at trial. These included, in addition to the Department caseworkers, the supervisor of Mr. Skipper's methadone program, a therapist who provided marital, parenting, and group chemical dependency counseling to the Skippers, and two psychologists who examined the family members. All the experts agreed that the children should ultimately be placed together if possible.

Janie Hailey was the initial Department investigator. She testified about the initial referral, her observations, and statements made by the parents and the children in the course of her investigation. She related the bases for the decisions of the Department. She also stated her opinion that the Skippers had engaged in conduct that endangered the children and that the children were adoptable.

Audrey Deckinga was also involved in the Department's conservatorship of the children. She testified as to the Skippers' inconsistent visitation and its effect on the children, the children's adjustment to foster care, the parents' failure to complete recommended treatment programs, and Mr. Skipper's inappropriate behavior at visitation. She stated her opinion that Rhiana had been sexually abused while in the Skippers' care, and that the Skippers knew of this and failed to prevent the abuse. She stated her opinion that the Skippers had engaged in conduct that endangered the children and that termination was in the children's best interest.

Janice Brown was a Department caseworker in this matter. She testified that it was her opinion that the Skippers had knowingly placed or allowed the children to remain in conditions or surroundings that endangered them and that termination would be in the children's best interest. She indicated that she believed the children to be adoptable, although Charlie would need additional residential care to assist in his adjustment. The evidence showed that Charlie's behavior worsened during foster care and that, at the time of trial, he was in a residential treatment facility.

Dr. Jeff Ezell testified as to his evaluation of the children and Ms. Skipper. Mr. Skipper refused to be examined by Dr. Ezell. Dr. Ezell stated that Charlie was not a good candidate for immediate adoption and would have problems adjusting to a termination and that, if Mr. Skipper became a responsible parent, it would be in the children's best interest to stay with him. Dr. Ezell admitted, however, that Charlie's expectation that he could be reunited with his father was unrealistic.

Dr. David Poole examined Mr. Skipper, Ms. Skipper, and Charlie and testified as to his clinical diagnosis. Dr. Poole testified that the parents' relationship with one another was pathological and unlikely to improve. He testified that, in addition to his drug problems, Mr. Skipper exhibited a personality disorder that could adversely affect the care of his children and that Mr. Skipper would be unlikely to improve without intensive therapy.

John Westlund is the supervisor of Mr. Skipper's methadone treatment program. He testified that Mr. Skipper kept his appointments or called in if he was going to miss an appointment. He testified that the program included monthly drug testing and that Mr. Skipper was on a high methadone dosage that had not been reduced. He confirmed that Mr. Skipper had been removed from a prior methadone program for hostile behavior, but that Mr. Skipper had no problems in the current program.

Russell Scheinberg provided the marital counselling, parent education, and group chemical dependency counselling programs recommended to the Skippers. He testified that the Skippers failed to complete marital counselling because of poor attendance, but that they had completed the parent education program. He stated that, in his opinion, the Skippers were not committed to completing the treatment programs.

The evidence shows a family history of drug abuse, spousal abuse, child abuse, and general instability. The record reflects little improvement since the original referral and little commitment by Mr. Skipper toward improvement. While the evidence was conflicting on some issues, this Court may not substitute its opinion on the credibility of witnesses and weight of the evidence for that of the trial court. Pool, 715 S.W.2d at 634; Benoit v. Wilson, 239 S.W.2d 792, 797 (Tex. 1951). We conclude that there is more than a scintilla of evidence to support the trial court's determination that there were grounds for termination and that termination would be in the children's best interest. We also conclude that this determination was not so against the overwhelming weight of the evidence as to be clearly wrong and unjust. For the above reasons, we overrule points of error four and five.

 
Motion for Continuance and Jury Demand

In his second point of error, Mr. Skipper contends the trial court erred in failing to grant his motion for continuance and in denying him a jury trial. This point of error is multifarious because it asserts error in two separate rulings in a single point. Clancy v. Zale Corp., 705 S.W.2d 820, 823 (Tex. App.--Dallas 1986, writ ref'd n.r.e.). Accordingly, we may disregard this point of error. Id.; Tex. R. App. P. 74(d). However, in the interest of justice, we will address the merits of the claimed errors.

Apparently, this case was set on the jury docket in Williamson County; however, upon transfer to Travis County, the case was not automatically set for a jury trial. The record does not indicate whether a written jury demand was ever filed in Williamson County. Mr. Skipper did not file a written jury demand in Travis County until August 13, 1991. Mr. Skipper also filed a motion for continuance on August 20, 1991. Apparently, two non-jury settings were made, the first for August 26, 1991, and the second for September 3, 1991. There is a notice of the second setting in the record, but no notice of the first setting. In his motion for continuance, Mr. Skipper urged separate grounds for postponing each setting. As to the August 26th setting, he asserted a scheduling conflict of his attorney and the lack of notice of the setting. As to the September 3rd setting, he argued for a continuance because of his jury demand. The motion also stated that a jury setting had been obtained for January 6, 1992.

By written order, the trial court granting the motion for continuance of the August 26th setting. However, the court found that no timely jury demand had been filed and that further delay would be to the extreme detriment of the children. The court concluded that Mr. Skipper was not entitled to a jury trial and struck the jury setting; the court also found that the September 3rd non-jury setting was properly noticed and in the best interest of the children. The cause proceeded to trial on September 3, 1991, at which time Mr. Skipper objected to the non-jury trial.

A jury trial is not available in a civil suit unless a party files a written request for a jury trial within a reasonable time, not less than thirty days, before the date set for a non-jury trial and pays the jury fee. Tex. R. Civ. P. 216(a), (b). In the immediate case, Mr. Skipper filed his request and paid the jury fee less than thirty days before both of the non-jury trial settings.

Furthermore, Mr. Skipper not demonstrated his compliance with Rule 216 in Williamson County. He calls our attention to references in motions filed in Williamson County to a jury-trial setting that Ms. Skipper's attorney apparently requested. However, the record does not include a written demand for a jury trial in Williamson County. Accordingly, Mr. Skipper has not shown that this cause was properly set for a jury trial in Williamson County.

Mr. Skipper also cites a docket notation in Travis County district court that, on July 2, 1991, at a hearing on a motion to withdraw of Mr. Skipper's then attorney, an oral jury demand was made and granted. An oral jury request does not satisfy Rule 216. Mr. Skipper did not satisfy this rule until August 13, 1991, when he filed his written demand and paid his jury fee. This demand was made within thirty days of the non-jury trial setting. We conclude that Mr. Skipper has failed to demonstrate that he took proper "affirmative actions" to preserve his right to a jury trial. See Walker v. Walker, 619 S.W.2d 196, 197-98 (Tex. Civ. App.--Tyler 1981, writ ref'd n.r.e.).

The decision whether a late jury demand should be granted is reviewed under an abuse of discretion standard. Turk v. First Nat'l Bank, 802 S.W.2d 264, 267 (Tex. App.--Houston [1st Dist.] 1990, writ denied); Forscan Corp. v. Dresser Indus., Inc., 789 S.W.2d 389, 392 (Tex. App.--Houston [14th Dist.] 1990, writ denied); Brawner v. Arellano, 757 S.W.2d 526, 529 (Tex. App.--San Antonio 1988, writ dism'd by agr.); Walker, 619 S.W.2d at 198. The trial court was apparently concerned with the effect of any further delay on the children. Indeed, the children had been in and out of foster care for over four years by the time of trial. Mr. Skipper proposed a further delay of four months for a jury trial. In light of these circumstances, we conclude that the trial court did not abuse its discretion in refusing a jury trial.

Mr. Skipper argues that the court allowed removal of the case from the jury docket over his objection in violation of Rule 220 of the Texas Rules of Civil Procedure. Rule 220 provides that "[w]hen any party has paid the fee for a jury trial, he shall not be permitted to withdraw the cause from the jury docket over the objection of the parties adversely interested." Tex. R. Civ. P. 220. However, as discussed above, Mr. Skipper has failed to demonstrate that this cause was ever properly placed on the Williamson County jury docket by any party. Accordingly, Rule 220 does not apply, and it was not error to set the cause for a non-jury trial over Mr. Skipper's objection.

Mr. Skipper also complains that the trial court erred in refusing to continue the September 3, 1991 setting. A ruling on a motion for continuance rests within the trial court's sound discretion and is to be reviewed in light of the facts before the court at the time the motion is presented. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988); Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986). From the trial court's order, it is apparent that the court was concerned with the best interest of the children, who had been in foster care for over four years during the pendency of this cause. Based on our conclusion that Mr. Skipper did not comply with Rule 216 and upon consideration of the best interests of the children, we conclude that the trial court did not err in refusing to continue this cause beyond the September 3rd setting. For the above reasons, we overrule Mr. Skipper's second point of error.

 
Hearsay

In his third point of error, Mr. Skipper contends the trial court erred in allowing the admission of hearsay evidence by a Department witness.

Mr. Skipper complains that Department witness Ms. Hailey was allowed to testify regarding hearsay statements. Mr. Skipper complains of her testimony that he had been in federal prison, that he had struck his daughter in the face, that he had threatened to harm his daughter, that he had attacked Ms. Skipper with a knife and had stabbed through a closet door behind which Ms. Skipper was hiding, that he had continued to use drugs after the Department intervened, that he had faked drug tests, that he got into altercations with Ms. Skipper and a therapist, that the Skippers had poor attendance at therapy sessions, and that his daughter had demonstrated inappropriate sexual behavior.

Ms. Hailey was the first caseworker assigned to the Skippers. She testified regarding the history of the referrals to the Department, the Department's actions, and her expert opinion whether Mr. Skipper and Ms. Skipper engaged in conduct that endangered the children. The bases of her opinion included, in addition to her first-hand observations, out-of-court statements made by Mr. Skipper, Ms. Skipper, the children, relatives, other caseworkers, and professionals involved in this matter. Generally, hearsay evidence may be relied upon by an expert in forming an opinion that is relevant to the disposition of the case. Tex. R. Civ. Evid. 703. Mr. Skipper did not object to Ms. Hailey's testimony as an expert. Additionally, Mr. Skipper agreed the evidence of threats toward the children before the first referral was admissible for the limited purpose of showing the basis of Ms. Hailey's decision to remove the children and her expert opinion on termination. We conclude that the hearsay was admissible as the partial basis for Ms. Hailey's opinion.

Moreover, to the extent the trial court may have relied on Ms. Hailey's testimony as evidence of the events related, we conclude it is admissible. The vast majority of the alleged hearsay consists of statements the parents made to Ms. Hailey during the course of the Department's investigation about Mr. Skipper's violent action and threats, drug use, evasion of drug tests, and prison history. We believe these statements are admissible as admissions of a party opponent or as statements against interest. See Tex. R. Civ. Evid. 801(d)(2), 803(24). The grounds for termination asserted by the Department and found by the court were (1) knowingly placing or knowingly allowing the children to remain in conditions or surroundings that endangered the physical or emotional well-being of the children; (2) knowingly placing the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children; and (3) failing to support the children in accordance with their ability during a period of one year ending within six months of the date of the petition. Tex. Fam. Code Ann. 15.02(1)(D), (E), (F) (West Supp. 1993). Because the first two grounds could be shown by the failure of one parent to protect a child from the other parent, evidence of dangerous conduct of one parent is adverse to the interest of the other parent. See D.O., 851 S.W.2d at 354; In re B.R., 822 S.W.2d 103, 106 (Tex. App.--Tyler 1991, writ denied). Indeed, allowing a child to remain in the care of an abusive parent may subject the passive parent to criminal liability. See Tex. Penal Code Ann. 22.04, 22.041(c) (West 1989 & Supp. 1993); Chapa v. State, 747 S.W.2d 561, 563 (Tex. App.--Amarillo 1988, pet. ref'd); cf. Florio v. State, 784 S.W.2d 415, 417 (Tex. Crim. App. 1990).

Additionally, much of the Skippers' testimony at trial confirmed the alleged hearsay. Mr. Skipper admitted in his testimony to altercations with Ms. Skipper, to his use of cocaine, marijuana, and heroin, to being under the influence of cocaine while in the presence of his children, to being violent toward Ms. Skipper in the children's presence, to holding a knife to Ms. Skipper's throat, and to unintentionally cutting Ms. Skipper's hand in an altercation. Ms. Skipper also testified as to violent acts by Mr. Skipper and to the Skippers' drug use. Other alleged hearsay testimony of altercations at therapy and poor attendance and inappropriate comments at visitation was confirmed by other witnesses.

Mr. Skipper complains that the hearsay evidence, although admissible as the basis of an expert opinion, should have been excluded because of its highly prejudicial nature. Mr. Skipper did not object to the prejudicial nature of the hearsay evidence at trial. Accordingly, he has waived any complaint. Tex. R. Civ. Evid. 103(a)(1).

If any inadmissible evidence was admitted, however, we conclude its admission was harmless. To show reversible error in the admission of testimony, Mr. Skipper must show that the admission was erroneous and was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex. R. App. P. 81(b)(1); McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 75 (Tex. 1989); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). In reviewing a cause tried before the court, the appellate court may assume the trial court disregarded any inadmissible evidence, if there is sufficient admissible evidence to support the judgment. Gillespie v. Gillespie, 644 S.W.2d 449, 450 (Tex. 1982); United Interest, Inc. v. Brewington, Inc., 729 S.W.2d 897, 902 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.); Fletcher v. Travis County Child Welfare Dep't, 539 S.W.2d 184, 186 (Tex. Civ. App.--Austin 1976, no writ). As discussed above, we find extensive admissible evidence in the record to support the trial court's judgment. We overrule point of error three.

 
CONCLUSION

Having overruled all points of error, we affirm the trial court's judgment.

 

Jimmy Carroll, Chief Justice

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed; Appeal of Nancy Skipper Dismissed

Filed: June 30, 1993

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