D.L.B., In Interest of

• Decision Date: 02 April 1997
• Docket Number: No. 04-96-00778-CV,04-96-00778-CV
• Citation: 943 S.W.2d 175
• Parties: In the Interest of D.L.B.
• Court: Texas Court of Appeals

Page 175

943 S.W.2d 175

In the Interest of D.L.B.

No. 04-96-00778-CV.

Court of Appeals of Texas San Antonio.

April 2, 1997.

Scott R. Donaho, Kirk Dockery, Donaho & Dockery, P.C., Floresville, for appellant.

Gary W. Shank, Floresville, Paul A. Finley, Reagan, Burrus, Dierksen, Lamon & Bluntzer, P.C., New Braunfels, for appellee.

Before RICKHOFF, LOPEZ and ANGELINI, JJ.

LOPEZ, Justice.

Appellants, Gary L. Hartman and Diane J. Hartman, bring this appeal from an adverse finding in their suit to terminate the parental rights of Brian Dwayne Baker (Baker), appellee. Appellants are the maternal grandparents of D.L.B. and have raised the child in their home since his birth on August 26, 1989. They were named sole managing conservators of D.L.B. in October of 1991. Baker, the father of the child, has been incarcerated since September of 1991.

In 1994, the paternal grandmother of D.L.B., Patsy Hornsby, filed a petition for grandparent access. After a psychological evaluation was done of Hornsby and D.L.B., the court set temporary scheduled visitation for Ms. Hornsby. In July of 1995, appellants filed a petition to terminate the parental rights of Baker and later filed a motion that the court sever the issue of grandparent visitation from the termination trial. The issues were not severed and the case was tried before a jury. The jury was asked only whether the parent-child relationship between Baker and D.L.B. should be terminated and they answered "no."

In their first two points of error, appellants contend that the trial court erred in denying their motion for judgment notwithstanding the verdict. They claim that the evidence presented 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 Code: 1) leaving the child with a non-parent [Hartmans] and expressing his intent not to return; 2) failure to provide adequate support for the child; 3) failure to provide adequate support for the mother during pregnancy; and 4) engaging in conduct that places the child in physical or emotional danger. TEX.FAM.CODE ANN. § 161.001 (Vernon 1996).

To terminate parental rights, there must be a finding that the parent has committed one of the acts in section 161.001, that termination is in the best interest of the child, and that evidence to support the findings is clear and convincing. See Richardson v. Green, 677 S.W.2d 497, 500 (Tex.1984). The fact that the parent is incarcerated can contribute to a finding that the parent engaged in a course of conduct which endangered the child's physical or emotional well-being. In re J.J., 911 S.W.2d 437, 440 (Tex.App.--Texarkana 1995, writ denied). If the conduct for which the parent is incarcerated shows voluntary and deliberate actions, it qualifies as conduct endangering the emotional well-being of a child. In re Guillory, 618 S.W.2d 948, 950 (Tex.App.--Houston [1st Dist.] 1981, no writ); cf. Trevino v. Department of Prot. & Reg. Serv., 893 S.W.2d 243, 247 (Tex.App.--Austin 1995, no writ). Termination cannot be based on failure to support the child unless there is also evidence of the ability to pay support. In re Z.W.C., 856 S.W.2d 281, 283 (Tex.App.--Fort Worth 1993, no writ); In re Guillory, 618 S.W.2d at 951 (no evidence of ability to pay); Mayfield v. Smith, 608 S.W.2d 767, 769 (Tex.Civ.App.--Tyler 1980, no writ) (incarcerated parent unable to pay support).

The appellate court must uphold the trial court's judgment if the evidence, when considered in the light most favorable to the jury verdict, is adequate to support the jury's answer. Dodd v. Texas Farm Prod. Co., 576 S.W.2d 812, 814 (Tex.1979); Briercroft Serv. Corp. v. De Los Santos, 776 S.W.2d 198, 204 (Tex.App.--San Antonio 1988, writ denied).

Baker explained that he was living with D.L.B.'s mother at the time of D.L.B.'s birth and they were all staying with the Hartmans. Because Baker was in school, and worked for the Hartmans, the Hartmans were paying all of the expenses. He also stated that he was asked to leave the house when a dispute arose over baptizing the baby. He never expressed that he would not return. Baker claims that when the Hartmans were granted conservatorship of the child they obviated any requirement for him to support D.L.B. He expressed concern for his son and a desire to maintain the relationship. The court appointed psychologist testified that termination would not be in the child's best interest and could cause feelings of abandonment and depression to the child.

We find that the evidence was sufficient to support the jury's verdict. Although there is evidence of non-support, we found no evidence that Baker was able to support the child and he gave reasonable explanations for his lack of support. Although the evidence regarding Baker's conviction could be considered endangering the child's welfare, the jury was allowed to weigh all of the evidence, including the testimony of the psychologist that termination was not in the child's best interest. In reviewing all of the evidence in a light favorable to the verdict, we find that the jury's verdict, finding a lack of clear and convincing evidence to terminate Baker's rights, must be upheld. We point out that although the Hartmans provided sufficient evidence that they would make excellent adoptive parents, the issue was whether all of Baker's rights should be terminated, not whether the Hartmans would be better parents for D.L.B. Points of error one and two are overruled.

Appellants challenge, in point of error three, the trial court's exclusion of any evidence on the child's wishes in the suit. Appellants assert that the child expressed a desire to be adopted by appellants and this was relevant evidence for the trier of fact. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976).

The trial court is afforded broad discretion to determine the admissibility of evidence at trial. Tracy v. Annie's Attic, Inc., 840 S.W.2d 527, 531 (Tex.App.--Tyler 1992, writ denied). The decision will not be overturned absent an abuse of discretion. Testimony regarding a declarant's state of mind is an exception to the hearsay rule in a termination proceeding where evidence of the child's desire can be considered. Melton v. Dallas County Child Welfare Unit, 602 S.W.2d 119, 121 (Tex.Civ.App.--Dallas 1980, no writ). However, the party calling the witness must make a bill of exception of the excluded testimony. TEX.R.APP.P. 52(b); Connell v. Connell, 889 S.W.2d 534, 545 (Tex.App.--San Antonio 1994, writ denied).

Although appellants are correct in their assertion that Mr. Hartman's testimony would have fallen under an exception to the hearsay rule, we were unable to find anything in the record to indicate that the wishes of the child would have been favorable to appellants. No bill of exception was entered summarizing what the testimony would have been. At trial, the child was only seven years old and the attorney ad litem did indicate that the child was not comfortable discussing the issue with him. The only attempt to testify regarding the child's wishes was from Mr. Hartman, but no statement was made when the judge sustained an objection as to hearsay. Under these circumstances, we are unable to find that the trial court abused its discretion in excluding the testimony of the Hartmans as to D.L.B.'s desires. Point of error three is overruled.

Appellants challenge, in their fourth point of error, the trial court's denial of their motion for new trial. They contend that a new trial was necessitated because the evidence to support the judgment was insufficient. This point of error is essentially a challenge to the factual sufficiency of the evidence to support the judgment.

In order to prevail on this point, appellants must show us that the verdict is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). If the evidence is conflicting on the material fact issues, the jury's decision should remain intact. Connell v. Payne, 814 S.W.2d 486, 489 (Tex.App.--Dallas 1991, writ denied).

Appellee asserts that the evidence does not support any statutory act or omission under section 161.001 of the Texas Family Code or that termination would be in the best interest of D.L.B.

We again point out that although Baker's conviction can be considered endangering the physical or emotional well being of the child, a violation of Family Code section 161.001 does not mandate termination. The jury weighed all of the evidence, as set forth above, and failed to find it adequate to terminate Baker's rights. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and the appellate court should not act as a thirteenth juror in assessing the evidence and the credibility of the witnesses. Mohnke v. Greenwood, 915 S.W.2d 585, 589-90 (Tex.App.--Houston [14th Dist.] 1996, no writ); Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).

Because the evidence was conflicting on whether the best interests of D.L.B. would be served by terminating Baker's rights, we cannot say that the verdict was so against the great weight of the evidence as to be unjust. Point of error four...