G.M. v. Texas Dept. of Human Resources

• Decision Date: 17 September 1986
• Docket Number: No. 14448,14448
• Citation: 717 S.W.2d 185
• Parties: G.M., Appellant, v. TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellee.
• Court: Texas Court of Appeals

Page 185

717 S.W.2d 185

G.M., Appellant, v. TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellee.

No. 14448.

Court of Appeals of Texas Austin.

Sept. 17, 1986.

Art Keinarth, Reynolds & Keinarth, Smithville, for appellant.

Jim Mattox, Atty. Gen., Edwin N. Horne, Asst. Atty. Gen., Austin, for appellee.

Before SHANNON, C.J., and EARL W. SMITH and GAMMAGE, JJ.

GAMMAGE, Justice.

G.M. appeals from the trial court's judgment based on a jury verdict, terminating her parental relationship with the child J.J.M. This Court will set aside the judgment of termination and remand the cause to the trial court.

The Texas Department of Human Services (formerly the Texas Department of Human Resources, see 1985 Tex.Sess.Law Serv., ch. 264, at 2157) petitioned for involuntary termination of the parental rights of appellant and P.M., parents of J.J.M., under Tex.Fam.Code Ann. § 15.02 (Supp.1986).

J.J.M. was born to appellant on December 19, 1981, in a Giddings hospital. The birth was several weeks premature, and shortly thereafter the child was transferred by her physician to the neo-natal unit at Seton Hospital in Austin because of respiratory problems. The medical evidence indicates that appellant had type B or serum hepatitis when J.J.M. was born. Although the baby did not show signs of infection at birth, she was later diagnosed as being a carrier of hepatitis.

Appellant required further hospitalization in Giddings. Her husband, who was unhappy with her treatment, became angry with the hospital staff and tried to secure her release from the hospital. Appellant's treating physician, Dr. Vocal, was reluctant to allow her to leave because she had poor physical resistance, was very fatigued and was "overextended physically." He finally agreed, however, and she was advised to get bed rest and proper nutrition at home with follow-up clinic appointments. Appellant left the hospital on Christmas Eve 1981 and went to Austin to visit her daughter.

Appellant saw Dr. Cullen on January 6, 1982. The following evening, appellant called an ambulance to her home. Her stated reason for doing so was to take both her and her husband to the hospital for treatment of hepatitis. Her husband became angry with the emergency medical personnel and refused to cooperate or to allow his wife to leave. Sheriff's deputies were called and persuaded him to let his wife go to the hospital. After one day of treatment, appellant again left the hospital.

On January 8, 1982, a social worker at Seton Hospital contacted the Department because of a lack of hospital visits by the M's. Wanda Pace, a Department case worker, went to appellant's home and was told by the parents that they did not intend to remove J.J.M. from the hospital at that time because it would be contrary to medical advice. Appellant was taken by her husband to his parents' home in Louisiana later that day. She was admitted to a Louisiana hospital for three days and then to a psychiatric institution where she remained until at least February 1982. On January 11, Pace was informed by appellant's mother-in-law that appellant was in Louisiana. The next day, Pace spoke by telephone with appellant's husband who made angry remarks about getting all his children and shooting anyone who tried to come after them.

On January 14, 1982, the Department filed its original petition in this cause, and obtained an emergency ex parte order giving it temporary managing conservatorship of J.J.M. This status was continued through temporary orders of the court dated March 25, 1982, and August 27, 1982. After appellant's release from the psychiatric institution, she corresponded with Pace regarding what the Department would require in order to return J.J.M. These negotiations were unsuccessful, and in December 1982 the Department determined to pursue termination against the M's.

At the close of the evidence, the case was submitted to the jury on special issues to determine if termination of each parent-child relationship was in the best interest of the child, § 15.02(2), and whether each parent had

(C) 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 months; or

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

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child ...

§ 15.02(1). The jury answered "yes" to each of the special issues.

By six points of error, appellant challenges the legal and factual sufficiency of the evidence offered to prove the grounds for termination under § 15.02(1)(C), (D) & (E). When confronted with a legal sufficiency or "no evidence" point of error, we are required to consider only that evidence which supports the finding and then in its most favorable light. Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984); Shaefer v. Texas Employers' Insurance Association, 612 S.W.2d 199, 201 (Tex.1981). In reviewing the factual sufficiency of the record in a termination suit, this Court must consider all of the evidence as required by In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), while applying the "clear and convincing evidence" standard of proof. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985); Richardson v. Green, supra. "Clear and convincing" refers to "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980), quoting State v. Addington, 588 S.W.2d 569, 570 (Tex.1979). Termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent. Holick v. Smith, supra at 20.

Appellant's first two points of error challenge the legal and factual sufficiency of the evidence for termination under § 15.02(1)(C). The first requirement for termination under subsection (C) is that the parent voluntarily left the child. Holick v. Smith, supra.

There is no evidence that appellant voluntarily left J.J.M. anywhere or with anyone as that term is contemplated in the statute. In her report to the court of January 15, 1982, Pace indicated that appellant's husband had "threatened to remove [J.J.M.] from Seton Hospital on two occasions against medical advice which would have prevented [J.J.M.] from receiving needed medical treatment." The evidence indicates that the treating physician transferred the baby to Seton Hospital, and that prior to January 14, 1982, appellant had no choice but to leave the child in the hospital or risk jeopardizing her health. On that date, the Department was granted temporary managing conservatorship of J.J.M. and has since maintained continuous possession of J.J.M. Appellant no longer had the power...