D_______ F_______ v. State

• Decision Date: 17 July 1975
• Docket Number: No. 16478,16478
• Citation: 525 S.W.2d 933
• Parties: D F , Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 933

525 S.W.2d 933

D F , Appellant, v.The STATE of Texas, Appellee.

No. 16478.

Court of Civil Appeals of Texas, Houston (1st Dist.).

July 17, 1975.

Rehearing Denied Aug. 14, 1975.

Bounds, Fitzgerald, McGilvray & Grimm, Martin J. Grimm, Houston Legal Foundation, Ronnie E. Bounds, Jr., Ronald G. Fitzgerald, James L. McGilvray, Houston, for appellant.

Carol S. Vance, Dist. Atty., Joseph T. Terracina, Chris Hanger, Kay L. Burkhalter, Asst. Dist. Attys., Houston, for appellee.

On Motions for Rehearing

PEDEN, Justice.

Our opinion filed on May 1, 1975, in this cause is withdrawn and the opinion that follows is substituted for it.

This suit was brought by the State to have an infant girl declared dependent and neglected, to terminate parental rights, and to place her with Harris County Child Welfare Unit as managing conservator with authority to place her for adoption.The mother appeals from a judgment in favor of the State entered after a non-jury trial.

Appellant complains that there was no evidence to sustain the trial court's finding that termination of her parental rights would be in the best interest of the child and says that such finding was so against the great weight of the evidence as to be clearly wrong.No findings of fact or conclusions of law were requested or filed in this case.In determining 'no evidence' points of error we view the record in the light most favorably in support of the findings of the trial court.Fisher Construction Co. v. Riggs,160 Tex. 23, 325 S.W.2d 126(1959).Great weight points require us to consider all the evidence.

The court's 'paramount concern is with the best interests of the children. . . .There is a presumption that the interests of a young child are best served by award of its custody to its natural parents.The presumption is based upon a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible . . .'Mumma v. Aguirre, 364 S.W.2d 220(Tex.1963).

The burden of proof on the issue of the best interest of the child is upon the one seeking to deprive the natural parent of custody.Herrera v. Herrera, 409 S.W.2d 395, 396(Tex.1966).Before the drastic remedy of declaring a child dependent and neglected can be applied, the unfitness of the parent should clearly appear from the evidence.Martin v. Cameron County Child Welfare Unit, 326 S.W.2d 31, 36(Tex.Civ.App.1959, writ ref'd n.r.e.).The evidence must be clear and convincing to give custody to another who is not the natural parent.Calhoun v. Ruffer, 425 S.W.2d 50(Tex.Civ.App.1968, no writ).The evidence in the record authorizes the trial court to measure the appellant's future conduct by her recent deliberate past conduct as it may be related to the same or a similar situation.De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359, 361(1960).

We review all the evidence.The appellant, D F , was called as an adverse witness.She is 19 years old and is the mother of T F , an infant born on October 21, 1973.The father is H B , Jr.She has never been married to him and she only lived with him for about a month.He has never contributed to the baby's support.At the time of trial, September 18, 1974, she had had six or seven jobs in the last nine months, working two or three weeks at each, and had lived in six different places.She was living with James Thompson when her daughter was placed in foster care.He had been put in jail and she had gone to see him when she was picked up by the police.She had just gotten over pneumonia.She lived with David Thomas for about six months, but is no longer doing so.They plan to marry.

She said she has been in Rusk State Hospital because her father beat her up and she though she needed a rest.She stayed four days once and eight days the other time.She said she had a nervous breakdown the second time.She went there a third time and stayed three months.Her health is now excellent.

She plans to finish Career Academy, where she is studying to be a dental assistant, in six more months.She has been there three weeks.She is supposed to get food stamps right away.She said she works about three days a week and makes $35 from Mrs. Elnora Thomas, but she has no income now and no money in the bank.She borrowed $100 from Mrs. Thomas.She spent $45 of it to get into school and paid a $50 deposit on her apartment.Her rent is $140 per month.David Thomas' sister is helping her out with food until she can get food stamps.

If her daughter is returned to her she plans to continue in the academy, where she will attend from eight until one, then work from two until eight or ten.One of David's sisters will keep the appellant's daughter while the appellant works and goes to the academy.She would be with her daughter on weekends and would later get a nine-to-five job.

Appellant admitted she had sometimes left her baby alone for a long time.She said she didn't know what to do with her baby, since she had not had one before and didn't have any kind of help.She couldn't recall having been referred to Jeff Davis for child-rearing classes, but would be willing to do anything she was asked to do.She admitted refusing to cooperate with the Child Welfare Unit in some things but said she has been to the Family Service Bureau five or six times.She denied leaving her baby alone longer than about ten minutes.Mrs. Price's daughter wanted her baby, but she refused and they kept bothering her.

Appellant said the apartment she lived in with James Thompson was junky, but not dirty.She had just gotten over pneumonia and was sick and weak.She thinks she can give her baby security, love and a good home, the most important things to her, by staying in school and getting a good job.She said she would die and go to hell for her baby; that she may have been immature, but she thinks she has learned from her experience and should be given a second chance.

She testified that she has a job where she can start tomorrow, making $3 an hour.Mrs. Thomas will help her get furniture for her apartment.After five months' more training she will be able to earn $500 to $600 per month.She said she has not missed a visit with her child.Her child is clean and healthy at present but cries during each visit.Admitting that in less than four weeks at the academy she has missed four or five days, she explained that she had to find an apartment, find a lawyer, and come to court.

Concerning her condition when she and her child were picked up by the police, she testified:

'Q.Do you recall Officer Craddock of the Houston Police Department coming up to assist you at that time?

'A.All I remember was that this young white man came up and asked me if I was hurt, and he had this lady with him, and I said no, I was just weak because I hadn't eaten, and I asked him would they carry me home, and the lady didn't know where this place was, and she stopped a policeman, and I was real upset, so he carried me to the Police Station and they took the baby, because she was sick.Her milk had soured on her and I didn't know it.I know that was kind of dumb not to check the milk and everything, because it could have messed up her health.

'Q.Do you recall that T was vomiting and had diarrhea at that time?

'A.Yes.I had been trying to feed her, you know, and I had asked that lady that had checked the baby at the hospital if I could feed her baby food and the baby food, I guess it hadn't adjusted to her stomach, but her milk had soured, but I didn't know it.'

Officer Craddock testified that he was in the 1200 block of Congress across the street from the Courthouse when it was brought to his attention that 'the woman was in a bad way and had a small baby with her.'He said when he first saw relator she was on the sidewalk sitting down on the curb and had a baby in her arms.He described her condition as:

'Well, the baby seemed . . . well, the baby had . . . the mother was carrying a little bottle of milk.It must have had about a third of the milk in it was left in there, and the milk had . . . I looked inside, because the nipple had kind of gotten stuck together, and as I looked inside the bottle, I noticed that the milk inside the bottle had clabbered.It was, you know, that old.And the baby's diapers were pretty dirty.In fact, them diapers was hard, they had been on the diaper so long.

'Q.It had crusted up?

'A.Yes, sir.Sure had.And this was what prompted my attention.I talked to the mother about it, and she couldn't seem to come up with any kind of particular answers as to where she lived and you asked her her name and she hesitated and asked her why she was up in this vicinity and she said she had been up to see a boy friend of hers in the County Jail at that time.'

Mrs. Sandra Price, the owner of an apartment building in which appellant had lived with several different tenants, testified that she knows the child was left alone for four hours on one occasion in November, 1973.When appellant moved in with one James Thompson the apartment was a total wreck; it was filthy, with dirty diapers and dirty clothes all over the place.Mrs. Price called Child Welfare because of complaints from her tenants about the baby's being left alone.

Mr. Wm. Eignus, a Welfare worker, testified that when he visited the apartment where appellant was living he found it in disarray, with piles of clothing on the floor and the odor of soured milk in the air.The oven was on, and the handle of a fork in the oven had melted.

He discussed with the appellant the possibility of her getting her baby back and told her that she would need to show some stability as to a place to live, income from Welfare or a job and to show that she was able to take care of the child herself.She said she would do what was needed, and he gave her a list of places where she might get help...