Brokenleg v. Butts, 6638
| Decision Date | 16 November 1977 |
| Docket Number | No. 6638,6638 |
| Citation | 559 S.W.2d 853 |
| Parties | Bernadine Rose BROKENLEG, Appellant, v. Bernard C. BUTTS, Sr., et ux., Appellees. |
| Court | Texas Court of Appeals |
This appeal is from a judgment terminating the parental rights of a father and mother and awarding custody of their seven-year-old daughter to her paternal grandparents. The father voluntarily relinquished his rights to the child and there being no appeal from that part of the judgment terminating his rights, that part of the judgment has become final. The mother appeals from that part of the judgment terminating her rights and as to that part of the judgment we reverse and render. We affirm that part of the judgment which finds that the best interest of the child will be served by appointing the grandparents as managing conservators.
The marriage between Bernard C. Butts, Jr., and Bernadine Rose Brokenleg was annulled when their only child, Tiffany, was eighteen months old. The mother and child continued to live in California for several months and then in May, 1972, they moved to Parmelee, South Dakota, and since that time Bernadine has lived on the Rosebud Sioux Indian Reservation, she being a full-blooded Sioux Indian. In July, 1973, Mr. and Mrs. Bernard C. Butts, Sr., Appellees, and their son, Bernard C. Butts, Jr., went to South Dakota and visited Bernadine and Tiffany, whom they had asked to go with them on their vacation. Bernadine was unable to go but agreed that Tiffany could go with her relatives. There is a dispute in the testimony as to whether or not the grandparents were going to keep Tiffany after the vacation or whether she was to be returned to her mother on the Reservation. In fact, the Appellees took Tiffany to their home in Kermit, Texas, following the vacation and she has lived with them since that time.
Bernadine visited her daughter in Kermit in December, 1973, again in December, 1975, and in August, 1976. She also called and talked to Tiffany on the telephone several times each year, wrote to her occasionally, and left $50.00 for her support on the last visit. Bernadine was employed as a secretary at $2.00 per hour from November, 1973, until April, 1974. She was unemployed until going to work as a teacher's aide at $2.30 per hour in August, 1974, although there is some evidence in the record that that job did not begin until February, 1975. Following an accident, she was unemployed from May, 1975, through August, 1975. At the time of trial, she was continuing to work as a teacher's aide and also earned $200.00 per month as a part-time tutor of college students.
Mr. Butts, Sr., is a production foreman for an oil company and his wife is circulation manager for a weekly newspaper. Together they earn over $2,000.00 per month. They have a home in Kermit in which Tiffany has her own bedroom. She is doing well in school and attends church regularly. She is well-fed and clothed and receives good medical attention when needed. Apparently, she is a happy, well-adjusted child, who testified in camera that she desires to stay with her grandparents.
Although Bernadine testified that she had adequate housing for her daughter on the Reservation, Appellees said the house was dirty and without adequate bathroom facilities which resulted in the need for an outhouse, and that when Tiffany was bathed, the dogs were in and out of the water. They testified that when they picked Tiffany up in July, 1973, she had a cold, tonsillitis, and ticks in her hair.
A psychiatrist testified that Bernadine was a competent mother and the best interest of the child would be served by placing custody with the mother. Two tribal officers testified in behalf of Bernadine and said she had a good reputation and that Tiffany was a normal child while living on the Reservation and would be well accepted now.
The trial Court filed findings of fact and conclusions of law. It found that Bernadine left Tiffany in the possession of her grandparents in July, 1973, without expressing an intent to return, and that Bernadine at no time provided adequate support, although having adequate financial resources to do so. It also found that it would be detrimental and would endanger the physical and emotional well-being of the child to return her to her mother's custody to be reared on the Indian Reservation. He concluded that Bernadine had voluntarily left the possession of the child with one not a parent without expressing an intent to return and without providing adequate support of the child, and that she remained away for a period of at least three months. It also concluded that she failed to support her child in accordance with her ability during a period of one year ending within six months of the date of the filing of the petition; and further that it would be in the best interest of the child to terminate the parental rights between Bernadine and Tiffany.
The Appellant attacks each of the trial Court's findings which serve as a basis for the judgment terminating the parental rights of the mother. The Appellees have filed no brief. The conclusions of law reflect that the trial Court has used both Section 15.02(1)(B) and (F) 1 as a basis for its decision. By her first point of error, Appellant attacks the findings made under Section 15.02(1)(B). As noted in Schiesser v. State, 544 S.W.2d 373 (Tex.1976), there are four elements to this particular Section of the Family Code. They are: (1) voluntarily leaving the child; (2) without expressing an intent to return; (3) without providing for the adequate support of the child; and (4) remaining away for a period of at least three months. Of course, best interest of the child still remains an issue under Section 15.02(2). Although the Appellant attacks each of the findings as to the four elements mentioned above, we only need concern ourselves with the third one which is a failure to provide for the adequate support of the child. As noted in the commentary following this Section of the Family Code in 8 Tex.Tech.L.Rev. 93 (1976), the standard for determining nonsupport under Subparagraph (B) is whether or not there is provision for adequate support of the child, rather than the parent's ability to support the child as in Subparagraph (F). The evidence in this case all reflects that the grandparents were able to and did in fact adequately support the child from the day Bernadine turned Tiffany over to them in July, 1973, until the date of trial. They testified themselves that they provided for all of her physical and medical needs and that she was well-fed, clothed, and in good health during the time she remained in their custody. Since the test under this Subparagraph is not whether or not the parent actually supported the child, but whether or not arrangements were made for the adequate support of the child, and the evidence is undisputed that they were, we conclude that Section 15.02(1)(B) is not applicable and we sustain Appellant's Point of Error No. I.
The second point of error attacks the trial Court's finding that Appellant failed to support her child in accordance with her ability during a period of one year ending within six months of the date of the filing of the petition under Section 15.02(1)(F). The petition was filed on April 21, 1975. Obviously, one year means twelve consecutive months. Thus, it was necessary that there be a period of twelve consecutive months sometime between October 21, 1973, and April 21, 1975, when the Appellant failed to provide support in accordance with her ability. The evidence is without dispute that during that entire period she made no contribution. But under the evidence as set forth above, we find no period of twelve consecutive months where she had an ability to contribute to the support of her child. Although she worked from November, 1973, until April, 1974, without making any contribution, that period is far short of twelve consecutive months. If she did, in fact, go to work in August of 1974 and worked until April, 1975, the period of time is still short of twelve consecutive months. The evidence is without dispute that she was unemployed from April, 1974, at least until August, 1974, and perhaps even until February, 1975. There is no evidence that she had any ability to support her child during that period of time, and thus there...
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