Choyce v. Dallas County Child Welfare Unit of Texas Dept. of Human Resources

• Decision Date: 12 November 1982
• Docket Number: No. 05-81-01259-CV,05-81-01259-CV
• Citation: 642 S.W.2d 559
• Parties: Linda Faye CHOYCE, Appellant, v. The DALLAS COUNTY CHILD WELFARE UNIT OF the TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellee.
• Court: Texas Court of Appeals

Page 559

642 S.W.2d 559

Linda Faye CHOYCE, Appellant, v. The DALLAS COUNTY CHILD WELFARE UNIT OF the TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellee.

No. 05-81-01259-CV.

Court of Appeals of Texas Dallas.

Nov. 12, 1982.

McCorkle, Westerburg & Felton, Michael R. Hoffman, Dallas, for appellant.

Stephen Buddy Luce, Franks & Luce, Irving, guardian ad litem.

Henry Wade, Dist. Atty., Anne Packer, Asst. Dist. Atty., Legal Clinic-SMU School of Law, Cynthia Hollingsworth, Dallas, for appellee.

Before CARVER, VANCE and GUILLOT, JJ.

GUILLOT, Justice.

This is an appeal from a case in which the Department of Human Resources sought permanent managing conservatorship of Maurice Lamond Choyce, Linda Wenona Choyce, and Tommie Jean Choyce, who were in the temporary custody of the Dallas County Child Welfare Unit of the Texas Department of Human Resources. The children's aunt intervened and also sought managing conservatorship. In accordance with the jury's findings, the trial court appointed the Department as the permanent managing conservator and both the mother and the aunt as permanent possessory conservators with visitation rights. The mother appeals. We affirm.

The mother's first contention is that the trial court erred in charging the jury as to the proper burden of proof. Section 11.15 of the Texas Family Code provides that the "preponderance of the evidence" standard is to be used in suits affecting the parent-child relationship under general rules applicable to civil cases. The trial court charged the jury in accordance with Section 11.15. The mother argues that due process under the Fourteenth Amendment of the United States Constitution requires a higher burden of proof. In this regard, the mother contends that section 11.15 is unconstitutional because the deprivation of custody and award of managing conservatorship to a non-parent is tantamount to termination of parental rights and is such a deprivation as to require "clear and convincing" proof. See In re G.M., 596 S.W.2d 846 (Tex.1980). We disagree.

In Wiley v. Spratlan, 543 S.W.2d 349, 351-5 (Tex.1976), the difference between suits for conservatorship and for termination was noted as follows Suits for conservatorship, possession, and support are governed by Chapter 14 of the Family Code and those matters are determined by the "best interest" test. Section 14.07. Those proceedings are different and have different purposes from termination cases. Decrees under Chapter 14 may be modified or changed from time to time, but the parent still retains some rights in and control over a child. A termination decree, on the other hand, is complete, final, irrevocable. It divests for all time the parent and child of all legal rights, privileges, duties, and powers with respect to each other except for the child's right to inherit. See Section 15.07. The difference in the proceedings justifies the caution with which courts have characteristically considered termination cases.

The present decree is not a termination decree. Since the mother still retains rights in her children, her claim to be appointed managing conservator can be relitigated upon the showing of a material and substantial change in circumstances. Tex.Fam.Code Ann. § 14.08 (Vernon Supp.1981).

The purpose of the decree was to reduce the mother's influence until she could rehabilitate herself and show that she has the ability to properly care for her children. We conclude that this revocable and less drastic deprivation is not such a serious loss of rights as to require a stricter burden of proof than that of a preponderance of the evidence set forth in section 11.15 of the Code. Consequently, we hold that the trial court properly charged the jury under the statutory standard.

In her second point of error, the mother challenges the sufficiency of the evidence which supported the finding that it would not be in the best interest of the children to appoint her as...