Anthony v. Mays
| Decision Date | 27 September 1989 |
| Docket Number | No. 04-88-00542-CV,04-88-00542-CV |
| Citation | 777 S.W.2d 200 |
| Parties | Timothy Kent ANTHONY, Jr. and Richard A. Lybarger, As Guardian Ad Litem, Appellants, v. Jeanie L. MAYS and Scott Adair Mays, Appellees. |
| Court | Texas Court of Appeals |
Stephen Miller, San Antonio, for appellant.
Richard A. Lybarger, guardian ad litem, San Antonio.
I. Blair McLeod, Jr., San Antonio, for appellees.
Before BUTTS, CARR and STEPHENS, JJ.
This appeal is prosecuted by the duly appointed guardian ad litem of Daniel Ray Anthony, the minor child of Timothy K. Anthony, Jr., from the grant of judgment non obstante veredicto, terminating the parent-child relationship of Daniel with his natural father, after a jury's verdict that termination was not in the best interest of the child.
In one point of error, the guardian ad litem contends that the trial court erred in entering judgment non obstante veredicto, because the evidence at trial was sufficient to support the jury finding that termination of the father's parental rights was not in the best interest of the child. We agree with the guardian ad litem, and accordingly we reverse the judgment of the trial court, and order the trial court to enter its judgment in accordance with the jury's verdict.
Jeanie L. Mays, the child's natural mother, and Scott Adair Mays, his stepfather, brought suit to terminate the parental rights of Timothy K. Anthony, Jr., the child's natural father, with his son, Daniel Ray Anthony, and to allow adoption of Daniel by his stepfather. Richard A. Lybarger, a licensed attorney, was appointed guardian ad litem of the child.
Appellees and the natural father of the child stipulated that the father had failed to support the child in accordance with his ability during a period of one (1) year ending within six (6) months of the date of filing of the petition.
The case proceeded to trial, and during closing arguments the trial judge asked for the guardian ad litem's recommendation as to termination. A single question was submitted to the jury, inquiring whether from clear and convincing evidence termination of the parent-child relationship was in the best interest of the child. The jury answered that termination of the father's parental rights was not in the best interest of the child.
Appellees filed their motion for judgment non obstante veredicto, and the guardian ad litem filed a brief in opposition. On July 7, 1988, when the father failed to appear at the hearing, the trial judge signed the judgment non obstante veredicto, terminating the parent-child relationship between Timothy Kent Anthony, Jr. and Daniel Ray Anthony. Thereafter, the father filed a motion for new trial and sought to perfect an appeal by filing a request for statement of facts, a request for transcript, and an affidavit of inability to pay cost bond, which was contested by appellees. On hearing of the affidavit of inability to pay costs, the trial judge ordered the father to post a cost bond or pay cash deposit in lieu of bond in the amount of Five Hundred Fifty Dollars ($550.00) in order to perfect his appeal. The guardian ad litem perfected this appeal independently of the father.
For involuntary termination of parental rights, the Texas Family Code requires a two-fold determination. First, it must be found that the parent has done or has failed to do one of the acts set forth in Section 15.02(1) of the Code. In addition to this finding, it must be found under Section 15.02(2), that termination of the parental rights is in the best interest of the child. TEX.FAM.CODE ANN. § 15.02 (Vernon 1986); Richardson v. Green, 677 S.W.2d 497, 499 (Tex.1984); In the Interest of S.H.A., 728 S.W.2d 73, 82 (Tex.App.--Dallas 1987, no writ). In the instant case, it was stipulated by the parties that the father, Timothy Anthony, Jr. failed to support the child in accordance with his ability during a period of one (1) year ending within six (6) months of the date of filing the petition. This stipulation, of course, conclusively established one of the conditions of section 15.02(1); however, the second condition, the finding that termination was in the best interest of the child, was the sole question submitted to the jury, which found that termination was not in the best interest of the child. Thus, for our court to uphold the trial court's entry of judgment non obstante veredicto, we must review the evidence, and determine that there was no evidence on which the jury could have based their answer that termination was not in the best interest of the child.
In Holley v. Adams, 544 S.W.2d 367 (Tex.1976), the Texas Supreme Court listed some nine factors to be considered in determining the best interest of a child. Although the court held that the list was by no means exhaustive, the nine factors listed were (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) parental abilities of the persons seeking custody; (5) programs available to assist these individuals to promote the best interest of the child; (6) plans for the child by these individuals; (7) stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.
In the present case the jury was instructed in the charge, as to five of these factors:
1. The emotional and physical needs of the child now and in the future;
2. Any emotional and physical danger to the child now and in the future;
3. The stability of the home;
4. The acts or omissions of the Respondent which may indicate that the existing parent-child relationship is not a proper one; and
5. Any legal excuse of Respondent for his acts or omissions.
The question submitted to the jury, was correct by inquiring whether from clear and convincing evidence termination of the parent-child relationship was in the best interest of the child. Clear and convincing evidence is defined as "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 846, 847 (Tex.1980); State v. Addington, 588 S.W.2d 569 (Tex.1979). This burden is heavy, and the jury found that the burden was not met.
As was held by the United States Supreme Court in Stanley v. llinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972):
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed 'essential,' ... 'basic civil rights of man,' ... and '[r]ights far more precious ... than property rights.' ... 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' ......
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B.T., In Interest of
...evidence, this court has previously held that the intermediate standard of review of clear and convincing will be used. See Anthony v. Mays, 777 S.W.2d 200, 204 (Tex.App.--San Antonio 1989, no writ); In re T.M.Z., 665 S.W.2d 184, 186 (Tex.App.--San Antonio 1984, no writ). 5 In reviewing a j......
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H.C., In Interest of
...of review of clear and convincing will be used when an appellant challenges the factual sufficiency of the evidence. See Anthony v. Mays, 777 S.W.2d 200, 204 (Tex.App.--San Antonio 1989, no writ); In Interest of T.M.Z., 665 S.W.2d 184, 186 (Tex.App.--San Antonio 1984, no writ). 2 In reviewi......
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In re Estate of Bean
...It is fundamental to our system of jurisprudence that the trial court may not substitute its judgment for that of a jury. Anthony v. Mays, 777 S.W.2d 200, 203 (Tex.App.-San Antonio 1989, no writ). The trial court's duty, and ours, is to ascertain the intention of the jury's answers and rend......
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D.L.B., In Interest of
...met the clear and convincing standard that the best interests of the child would be served by terminating Baker's rights. See Anthony v. Mays, 777 S.W.2d 200, 202 (Tex.App.--San Antonio 1989, no writ). They base this contention on Baker's violations under section 161.001 of the Texas Family......