Holley v. Adams
| Citation | 544 S.W.2d 367 |
| Decision Date | 01 December 1976 |
| Docket Number | No. B--5880,B--5880 |
| Parties | Nanci Adams HOLLEY, Petitioner, v. David E. ADAMS, Respondent. |
| Court | Supreme Court of Texas |
Orr & Davis, Stephen M. Orr, Austin, for petitioner.
Rogan B. Giles, Austin, for respondent.
David Adams instituted this suit for termination of the parent-child relationship between his former wife, Nanci Adams Holley, and their son. The trial court ordered termination under Section 15.02 of the Texas Family Code Annotated 1 on the grounds David and Nanci Holley were married in 1965. The only child of their marriage, David Christopher, was born the following year. The couple separated in 1968 and subsequently Nanci Holley filed a suit for divorce which was granted in 1969. During the pendency of the divorce action Nanci Holley voluntarily delivered the child to his father in Austin, Texas where he has remained at all times pertinent to this action.
that Nanci Holley had failed to support her child (Section 15.02(1)(E)), that her conduct endangered the emotional well-being of the child (Section 15.02(1)(D)), and that the termination of the parent-child relationship was in the best interest of the child (Section 15.02(2)). The court of civil appeals affirmed. 532 S.W.2d 694. We reverse and render judgment denying termination of the parent-child relationship.
Nanci Holley did not object to or contest the divorce decree awarding custody of the child to David Adams. The court decree did not require Nanci to pay child support. The court order did, however, designate David Adams as managing conservator and he has continuously retained custody and control of his son since Nanci Holley voluntarily delivered the child to him.
David married his present wife, Sharon, in 1970. The trial court found that David Christopher enjoyed a happy relationship with his father and stepmother. His health was good, he attended school regularly, made good grades, and engaged in athletic activities.
Shortly after the divorce Nanci Holley was arrested and jailed for a traffic offense. She was also committed to the Austin State Hospital by her mother during June and July of 1969 for treatment of mental illness which Nanci described as a depressive condition caused by the divorce. In August 1969 she left Austin, Texas where her husband and child resided. She traveled in the company of three men and made what the court of civil appeals termed a 'rootless trek to the western states.' By the end of that month she had settled in Seattle, Washington where she has remained.
Nanci Holley remarried in 1970 and one child, a daughter, was born of this second union. This marriage ended in divorce in 1973 and Nanci Holley has retained custody of her daughter. During 1973 Nanci declared bankruptcy and in March 1974 she married her present husband, Ricky Holley, who was a student at the University of Washington.
After leaving Austin in 1969 Nanci Holley returned there to visit her son, David Christopher, on three occasions between 1971 and 1974. With respect to her relationship with and support of her son, Nanci Holley testified to the following: she often contacted him through her mother by numerous letters and telephone calls; there exists a loving parent-child relationship between them; the termination of that relationship would not be in the best interest of the child; her three offers to pay her son's air fare to and from Seattle were refused; between 1970 and 1975 she sent a total of approximately $100 in cash to her son or to David and Sharon Adams for his use and benefit; she maintained a health insurance policy covering him; and she sent various gifts and toys to her son. The trial court found that at least one of her gift packages was returned to her unopened. As to Nanci's financial situation between 1970 and 1975, the trial court found that: (1) for two years following her remarriage in 1970 she was a housewife without outside employment; (2) in 1972 she obtained employment as a program adviser at the University of Washington, which position she has continued David Adams instituted the instant suit for termination of the parent-child relationship between his former wife, Nanci Adams Holley, and their son, asserting as the only grounds therefor that Nanci Holley had 'failed to support the child in accordance with her ability during a period of one year ending within six months of the date of filing of the petition, and she (had) emotionally and actually abandoned the child,' and that termination 'would be in the best interest of (the) child.'
to hold; (3) she earned a gross income in excess of $500 per month from this employment; (4) she declared voluntary bankruptcy in 1973; (5) her marriage to Ricky Holley has not resulted in any children; (6) Ricky Holley received Veterans Administration education benefits in excess of $300 per month and worked part-time; (7) his tuition averaged $125 per month; and (8) $117 per month was deducted from Nanci's salary to repay loans. Nanci testified that she had not received the child support payments her second husband was ordered to make.
The court appointed a guardian Ad litem to represent the child, David Christopher, and ordered the guardian Ad litem to investigate the circumstances and submit a written report to the court. Such report was submitted and is part of the record before this court.
David testified that he brought this suit for termination because if he should die it would be better for his son to be raised by Sharon Adams rather than by Nanci Holley. In describing the relationship between Nanci and David Christopher, David Adams testified as follows:
'Q . . . do you feel that it's in the best interest of Christopher that he not ever see his natural mother again?
'A No, no, sir, not--
'A Yes, sir.
'Q--last February?
'A Yes, sir.
'A Yes, but I--I believe the way--the child is happy the way he is and--
'Q But you think he ought to continue to see Nanci, do you not?
'A Whenever she comes to town, yes.'
In its 'Conclusions of Law' the trial court found that:
1. '. . . (Nanci Adams Holley) has failed to support the child in accordance with her ability during a period of one year ending within six months of the date of filing of the petition, within the meaning of Article 15.02(1)(E) of the Texas Family Code';
2. 'By her conduct and virtual abandonment of the minor child, David Christopher Adams, for a period of six years, commencing some three to four months prior to her divorce from David E. Adams, Nanci Adams Holley has engaged in conduct which endangers the emotional well-being of the child within the meaning of Article 15.02(1)(E) of the Texas Family Code'; and
3. 'Termination of the parent-child relationship between the mother, Nanci Adams Holley, and the child, David Christopher Adams, is in the best interest of the minor child, David Christopher Adams . . ..'
The trial court decree ordered termination of the parent-child relationship. Additionally, it appointed David Adams managing conservator of his son. The court of civil appeals affirmed, holding that there was sufficient evidence to sustain the trial As this case involves the right of the child to the benefit of the home and environment which will probably best promote its interest and the right of the parent to surround the child with proper influences, Herrera v. Herrera,409 S.W.2d 395 (Tex.1966), Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894), and as Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976), recognized the constitutional dimensions of these rights, this case must be strictly scrutinized.
court's finding that Nanci Holley failed to support her son in keeping with her ability during a period of one year prior to the filing of this suit for termination (Section 15.02(1)(E)), and that termination of the parent-child relationship was in the best interest of the child. Having found evidence to support one of the provisions of Section 15.02(1) of the Family Code, namely, failure to support (Section 15.02(1)(E)), the court of civil appeals declined to consider the trial court's alternative finding that Nanci Holley had engaged in conduct which endangered the emotional well-being of her son (Section 15.02(1)(D)). The only issue before this court is the correctness of the termination order. There is no challenge of the appointment of David Adams as managing conservator.
Under Section 15.02 termination of a parent-child relationship may not be based solely upon what the trial court determines to be the best interest of the child. In Wiley v. Spratlan, supra, this court wrote:
543 S.W.2d...
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