Holick v. Smith, s. C-3261

Decision Date06 February 1985
Docket NumberC-3262,Nos. C-3261,s. C-3261
Citation685 S.W.2d 18
PartiesMable Jo David HOLICK, Petitioner, v. Danny Eugene SMITH Et ux., Respondents. * .
CourtTexas Supreme Court

Thomas T. Tatum, Whitehouse, for petitioner.

Bain, Files, Allen & Caldwell, Jerry Bain, Tyler, for respondents.

SPEARS, Justice.

This case involves the involuntary termination of the parent-child relationship between Mable Jo Holick and two of her children. Mr. and Mrs. Danny Eugene Smith brought suit for termination and for adoption of the two Holick children. After a non-jury trial, the court ordered termination of the parent-child relationship and granted the adoption. The court of appeals, in an unpublished opinion, affirmed. We reverse the judgments of the courts below.

In early March 1982, Ms. Holick left the children with the Smith family. Ms. Holick had been unable to financially support herself or the children. Although she was able to keep them clothed and fed, they sometimes had no place to sleep but the car. The children were behind on their immunizations and had head lice when Ms. Holick's niece, Mrs. Smith, offered to take care of them until Mrs. Holick could get on her feet.

After leaving the children with the Smiths, Ms. Holick went to Dallas with her youngest child to live with her boyfriend. There, she obtained employment as a waitress. She sent no money to the Smiths, nor did they expect her to send money for the children's support. She did not visit or write the children for over six months, although she did call and talk to them once during that period.

The Smiths have two children of their own, are very active in the church, and are able to financially support the children. The social worker's report concludes that the Smiths are excellent role models, express love for the children, and appear to want to adopt them.

The issue presented on appeal is whether the Texas Family Code authorizes termination under these circumstances. We are called upon to construe section 15.02 of the Family Code, which provides in part:

A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:

(1) the parent has:

(A) voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; or

(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months; or

(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; or

(F) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;

* * *

* * *

and in addition, the court further finds that termination is in the best interest of the child.

Tex.Fam.Code Ann. § 15.02 (Vernon Supp.1984).

The trial court terminated the parent-child relationship based on subsection (1)(C). There are five requirements for termination under subsection (1)(C):

(1) voluntarily left the child,

(2) alone or in the possession of another,

(3) without providing adequate support of the child,

(4) remained away for at least six months, and

(5) termination is in the best interest of the child.

It is undisputed that Ms. Holick voluntarily placed the children in the possession of the Smiths and that she remained away for at least six months, even though she had expressed an intent to return for the children. It is undisputed that Ms. Holick made no support payments but was not expected to by the Smiths, and she did not contest the trial court's finding that the termination and adoption would be in the best interest of the children. She contends, however, that she was not required to actually support the children, but only make arrangements for their adequate support.

The natural right existing between parents and their children is of constitutional dimensions. In re G.M., 596 S.W.2d 846, 846 (Tex.1980); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976). Indeed, "involuntary termination of parental rights involves fundamental constitutional rights." In re G.M., 596 S.W.2d at 846. This natural parental right has been characterized as "essential," "a basic civil right of man," and "far more precious than property rights." See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1976). A termination decree is complete, final, irrevocable and divests for all time that natural right as well as all legal rights, privileges, duties and powers with respect to each other except for the child's right to inherit. Wiley, 543 S.W.2d at 352; Tex.Fam.Code Ann. § 15.07 (Vernon 1975). Moreover, the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights. Santosky v. Kramer, 455 U.S. 745, 747, 102 S.Ct. 1388, 1391, 71 L.Ed.2d 599 (1980); Richardson v. Green, 677 S.W.2d 497, 500 (Tex.1984). Consequently, termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent. See Cawley v. Allums, 518 S.W.2d 790, 792 (Tex.1975); Heard v. Bauman, 443 S.W.2d 715, 719 (Tex.1969).

The Smiths seek a construction of subsection (1)(C) that would require Ms. Holick to have personally sent them "adequate support" for the children; however, they never expected such support. The Smiths took the children because Ms. Holick could not adequately support them. The Smiths, nevertheless, argue that the legislature intended to require parents to personally "provide adequate support" under (1)(C) because (1)(B) contains the language "provide for the adequate support." In Brokenleg v. Butts, 559 S.W.2d 853 (Tex.Civ.App.--El Paso 1977, writ ref'd n.r.e.) cert. denied 442 U.S. 946, 99 S.Ct. 2894, 61 L.Ed.2d 318 (1979) the court construed subsection (1)(B), the three-month provision. The court held that subsection (1)(B) requires the parent to make arrangements for the adequate support of the child rather than personally send support.

We believe that subsection (1)(C) is capable of two interpretations. "Provide" is defined to mean "to furnish; supply" or "to fit out with means to an end." Webster's New International Dictionary (2nd ed. 1960). Thus, subsection (1)(C) is susceptible to an interpretation which would merely require that the parent make arrangements for adequate support rather than personally support the child.

The Smiths would have us adopt an interpretation which would allow the termination based on whether the parent is acutely indigent, not whether the parent intended to abandon the child nor whether the parent's conduct endangers the physical or emotional wellbeing of the child. Under such an interpretation a parent's rights could be terminated if he placed his child with another who promised to provide support, even though he expressed an intent to return as soon...

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