B.T., In Interest of

• Decision Date: 23 April 1997
• Docket Number: No. 04-96-00109-CV,04-96-00109-CV
• Parties: In the Interest of B.T., A Child.
• Court: Texas Court of Appeals

Page 44

954 S.W.2d 44

In the Interest of B.T., A Child.

No. 04-96-00109-CV.

Court of Appeals of Texas,

San Antonio.

April 23, 1997.

Michael D. Robbins, San Antonio, for Appellant.

Thomas J. Crane, Daniel Thornberry, Assistant Criminal District Attorney, San Antonio, for Appellee.

Before STONE, GREEN and DUNCAN, JJ.

OPINION

GREEN, Justice.

Michael Thomas appeals from a jury verdict terminating the parent-child relationship between Thomas and his son, B.T. Thomas brings forward two points of error contesting the legal and factual sufficiency of the evidence.

Facts

The Texas Department of Protective and Regulatory Services (the Department) first became involved in this case shortly after B.T.'s birth in September of 1989. ¹ B.T. was born four months premature at home in San Antonio. The mother, Wendolyn Perryman, ² and newborn son had to be rushed to Santa Rosa Hospital. B.T., weighing only two pounds, six ounces at birth, suffered from various medical problems. On September 30, 1989, the Department received a referral from the hospital concerning B.T.; it was reported that B.T. needed an emergency blood transfusion but the hospital initially could not locate the parents for their consent, and when it did contact Perryman, Perryman refused to give her consent until she spoke with Thomas. B.T. eventually received the transfusion, but only after an emergency court order was obtained. Neither parent visited B.T. while he was in the hospital. In November 1989, B.T. was discharged from the hospital and into the Department's care. The Department placed B.T. into a foster home in December 1989. The foster parents, Dan and Vicki Danielak, have cared for B.T. since then.

In May 1994, the Department filed a petition seeking to terminate the parent-child relationship between Thomas and B.T. Trial was by jury. In the court's charge, the court instructed the jury:

For the parent-child relationship between [B.T.] and MICHAEL THOMAS to be terminated, it must be proved by clear and convincing evidence that the parent has:

(1) Voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six (6) months;

(2) Knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; and

(3) 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 the filing of this petition.

For the parent-child relationship ... to be terminated, it must be proved by clear and convincing evidence that the termination of the parent-child relationship is in the best interest of the child.

To the question "Should the parent-child relationship between MICHAEL THOMAS and [B.T.] be terminated?", eleven jurors responded "yes." As a result of the jury's finding, the court entered a decree ordering the termination of the parent-child relationship; in the decree, the court specifically noted:

The Court finds MICHAEL C. THOMAS has:

(1) Voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six (6) months.

The Court also finds termination of the parent-child relationship between the father, MICHAEL C. THOMAS, and the child, [B.T.], the subject of this suit, is in the best interest of the child. ³

Thomas filed a motion for new trial, which was overruled by operation of law. He then filed notice of appeal.

Discussion

In two points of error, Thomas argues that the evidence was both legally and factually insufficient ⁴ to establish that Thomas voluntarily left B.T. alone or in the possession of another without providing adequate support of B.T. and remained away for at least six months.

Standard of Review

Involuntary termination proceedings must be strictly scrutinized. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). Parental rights can only be terminated by a showing of clear and convincing evidence. See TEX.FAM.CODE ANN. § 161.001 (Vernon 1996); In re G.M., 596 S.W.2d 846, 847 (Tex.1980). When an appellant challenges the factual sufficiency of the 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 jury's findings based on a clear and convincing standard, we ask ourselves whether sufficient evidence was presented to produce in the mind of a rational factfinder a "firm belief or conviction as to the truth of the allegations sought to be established." TEX.FAM.CODE ANN. § 101.007 (Vernon 1996); In re G.M., 596 S.W.2d at 847.

In reviewing a legal sufficiency challenge, we must view the evidence in the record in a light which tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). The judgment will be reversed only when the evidence offered to prove a vital fact constitutes no more than a mere scintilla. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983); see In re Baby Girl Rodriguez, 940 S.W.2d 265, 270 (Tex.App.--San Antonio 1997, n.w.h.).

Involuntary Termination

The trial court terminated Thomas' parental rights under section 161.001(1)(C) of the Family Code. ⁶ To terminate the parental relationship on this ground, the State must prove by clear and convincing evidence that Thomas (1) voluntarily left the child, (2) alone or in the possession of another, (3) without providing adequate support of the child, (4) remained away for at least six months, and (5) termination is in the best interests of the child. TEX.FAM.CODE ANN. *47s 161.001(1)(C), (2) (Vernon 1996); Holick, 685 S.W.2d at 20. In his brief, Thomas only contests the first three elements. He asserts that for the first three years of B.T.'s life he believed that Perryman had custody of B.T. and was preventing him from seeing his son. He contends that after 1992, he involuntarily left B.T. in the Department's custody because he was incarcerated during most of that time. He also claims that element three cannot be met since he was not court-ordered to pay child support and because he was unable financially to provide any support to B.T., especially while he was incarcerated.

At trial, the State first called Darlene Blaylock, a case worker for the Department, to the stand. Blaylock testified that after the Department began working on this case, on October 6, 1989 she went to visit Perryman concerning the allegations of medical neglect. She stated that Thomas was present at this meeting, but he refused to engage in conversation; nevertheless, she encouraged both parents to keep in contact with B.T. She also testified that neither parent visited B.T. while he was in the hospital nor were the parents available when B.T. was discharged.

The second witness for the State, Bonnie Doss, testified that she worked on the case from October 5, 1990 to June 17, 1991. During that time, Thomas did not contact the Department nor B.T. On behalf of the Department, she phoned Thomas and wrote to him several times to arrange a visitation schedule. Some of the letters were returned. Although the phone was working, she was only able to get through to someone once; a lady answered the phone and verified that Thomas did live at that number. Doss left a message for Thomas concerning B.T., but Thomas never returned the phone call.

Next, Marjorie Georg testified on behalf of the Department. She was the case worker from June 1991 to June 1993. She continued the Department's efforts to contact Thomas. Some of her letters were eventually returned stating that Thomas was not at that address. She then conducted a diligent search to find Thomas' address. After obtaining an address for Thomas from the Houston Police Department, she began sending letters to the newer address. She also called and spoke with Thomas' wife, Kathryn Thomas. Eventually, she was able to speak with Thomas over the phone in May of 1992; during the course of this conversation, Thomas related that he wanted his son and asked what he needed to do to get him. A visitation was scheduled and Thomas visited B.T. around July 13, 1992. At this visit, Thomas promised to visit B.T. every two weeks and to attend physical therapy with his son. Thomas' next visit did not occur until September when Thomas made an unscheduled visit to one of B.T.'s Easter Seal therapy sessions. After that, Thomas had no other contact with his son.

Georg also testified that Thomas attended a staffing meeting held by the Department. Georg claimed that termination of Thomas' parental relationship was discussed at the meeting. During the meeting, Thomas then requested that his home be studied for permanent placement of B.T. Later, a home study was attempted but Thomas asked the Department to postpone the study until January because it was not a good time in his life right then. Georg sent Thomas a letter confirming the cancellation of the study and requested that he seek a home study no later than January 31, 1993. Thomas also had suggested to Georg that the Department consider placing B.T. with Thomas' father; the Department contacted Thomas' father but he refused the home study and argued that he was automatically entitled to custody of B.T. since he was the grandfather. Georg sent Thomas a letter regarding his father's refusal to permit a home study. Thomas never responded to these letters and never requested another home study.

Georg also swore that the foster parents, the Danielaks, had given their phone number to Thomas and had encouraged him to call and speak with B.T. She opined that Thomas knew that B.T. was in the State's custody,...