In the Interest of J.M.T.

• Decision Date: 01 December 1999
• Docket Number: No. 10-99-276-CV,10-99-276-CV
• Citation: 39 S.W.3d 234
• Parties: (Tex.App.-Waco 1999) IN THE INTEREST OF J.M.T., A CHILD, Appellant
• Court: Texas Court of Appeals

Page 234

39 S.W.3d 234 (Tex.App.-Waco 1999)

IN THE INTEREST OF J.M.T., A CHILD, Appellant

No. 10-99-276-CV

COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO

December 1, 1999.

Appeal from 220th District Court, Bosque County, James Morgan, Judge. [Copyrighted Material Omitted] Before Chief Justice Davis, Justice Vance, and Justice Gray.

OPINION

GRAY, Justice.

A father's parental rights were terminated. In a bench trial the court determined he had failed to support the child in accordance with his abilities and also found that termination was in the best interest of the child. We are called upon to decide whether the evidence supported the termination and whether the trial court erred in not entering a judgment for the arrearage that resulted in the termination. Although the trial was very short, we hold that the trial court's findings are based upon clear and convincing evidence and accordingly we affirm the judgment.

BACKGROUND FACTS

Sonja Word and Robert Thomas were divorced. They were named joint managing conservators of their child, J.M.T. Thomas was ordered to pay child support. Thomas paid child support for about two years. However, from March 1996 until February 1998, no child support was paid.

In February of 1998, Word filed a pleading entitled "Original Petition to Terminate Parent-Child Relationship; Alternatively, For Enforcement of Child Support Order." A guardian ad litem was appointed to represent the interest of the child. After a relatively short proceeding, lasting approximately two hours, the trial court terminated the parental rights of Thomas. Thomas's motion for new trial was denied and he perfected this appeal.

ISSUES ON APPEAL

Thomas challenges the termination of his parental rights claiming that there was no evidence, or alternatively, insufficient evidence to support the findings that he failed to support the child in accordance with his ability and that termination was in the best interest of the child. The burden of proof and the standard of review are the same for each of these findings. Thus, we will discuss the burden of proof at trial and our standard of review and then apply the standard to the evidence presented at trial on each of the challenged findings.

Additionally, Word has filed a notice of appeal and by one issue complains that the trial court erred when it did not reduce the child support arrearage to judgment.

THE TWO PRONG TEST FOR TERMINATION OF PARENTAL RIGHTS

The natural right existing between a parent and child is of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). The right to raise one's child has been characterized by the United States Supreme Court as essential, as a basic civil right, and as a right far more precious than property rights. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972). 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. Holick, 685 S.W.2d at 20. Termination is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by "clear and convincing evidence." Spangler v. Texas Dept. of Protective and Regulatory Services, 962 S.W.2d 253, 256 (Tex. App.--Waco 1998, no pet.). Thomas does not challenge any aspect of these proceedings on constitutional bases. His complaint is that there is no evidence, or alternatively insufficient evidence, of the elements required for termination under the applicable statute.

In proceedings to terminate the parent-child relationship brought under Section 161.001 of the Family Code, the petitioner must establish two elements. First, petitioner must prove one or more acts or omissions enumerated under the first subsection of the statute. Second, petitioner must prove that termination of the parent-child relationship is in the best interest of the child. TEX. FAM. CODE ANN. 161.001 (1), (2) (Vernon 1995 & Supp. 1998); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). The fact finder must find both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex. 1976).

BURDEN OF PROOF: CLEAR AND CONVINCING EVIDENCE

Termination of parental rights requires the petitioner to justify termination by clear and convincing evidence of each element. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). This standard is defined as "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. " Spangler, 962 S.W.2d at 256.

LEGAL SUFFICIENCY: STANDARD OF REVIEW ON APPEAL

We use the traditional "no-evidence" standard of review in reviewing a legal sufficiency complaint of a finding which must be established by clear and convincing evidence. We consider only the evidence which tends to support the fact finder's findings and disregard all evidence and inferences to the contrary. Lucas v. Texas Dep't of Protective and Regulatory Services, 949 S.W.2d 500, 502 (Tex. App.--Waco 1997, writ denied). An appellate court will review a "no-evidence" or legal sufficiency complaint by considering only the evidence and inferences tending to support the finding to determine if there is more than a scintilla of probative evidence in the record to support the decision. In the Interest of D.L.N., 958 S.W.2d 934, 936 (Tex. App.--Waco 1997, pet. denied, pet rehear'g denied); See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996); Lucas, 949 S.W.2d at 502. If there is any evidence in the record to support the finding of the trial court, we will overrule the appellant's legal sufficiency complaint. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951).

FACTUAL SUFFICIENCY: STANDARD OF REVIEW ON APPEAL

When the trier of fact is required to make a finding by clear and convincing evidence, the court of appeals will only sustain an issue alleging factually insufficient evidence if the trier of fact could not reasonably find the existence of the fact to be established by clear and convincing evidence. Spangler, 962 S.W.2d at 257. Thus, in a case where the burden of proof at trial is clear and convincing, an issue complaining that the evidence is factually insufficient will be sustained only when: (1) the evidence is factually insufficient to support a finding by clear and convincing evidence; or (2) a finding is so contrary to the weight of contradicting evidence that no trier of fact could reasonably find the evidence to be clear and convincing. Id.

APPLICATION OF THE TWO PRONG TERMINATION TEST

Termination of parental rights involves an application of a two prong test. There must be a predicate act which constitutes a violation of one of the provisions listed in the Family Code. Additionally, it must be in the best interest of the child that the parent-child relationship be terminated.

ACTS OR OMISSIONS UNDER THE FAMILY CODE

In order to terminate Thomas's parental rights, Word was required to prove at least one of the acts or omissions enumerated in the Family Code. TEX. FAM. CODE ANN. 161.001 (1) (Vernon 1995 & Supp. 1998). One of the acts upon which termination can be based is a showing of failure to support the child in accordance with one's ability for a period of one year ending within six months of the date of the filing of the petition. Id. at 161.001(1)(F).

The Evidence

It was undisputed at trial that Thomas had paid no child support for two years. Evidence of failure to pay alone is not adequate to support a violation of the statute. There must be some evidence of ability to support, and that the support was not provided.

Thomas was ordered to pay support in the amount of $ 276 per month. At no point does Thomas claim that he attempted to have the amount modified because his ability to pay had changed. Indeed, Thomas admitted that he did not pay and acknowledged that he was $ 7,290 in arrears.

When the trial court establishes the amount of child support to be paid by a parent, the court must consider the ability to contribute to the child's support. In the Interest of R.R.F., 846 S.W.2d 65, 68 (Tex. App.--Corpus Christi 1992, writ denied). The child support order includes within it an implied finding that the obligor has the means or ability to pay the amount ordered. Id.

At the time of trial Thomas was employed by a paging company and was willing to have his wages garnished in order to make up the arrearage. He testified that he had been working in a family business which was not making any profit. However, at no point during the trial did he attempt to prove what his income was nor did he seek to introduce into evidence any records of the business which might have shown that the business was failing. Indeed, when asked why he did not seek more financially rewarding work, he replied that his needs were being met. The trial court could assume that "his needs" included enough income to pay his court ordered child support but was not used for that purpose, or that he did not view his obligation to support as essential.

More importantly, it is not just that he failed to pay the court ordered child support, although that alone may have been enough, but he did not offer any financial support of his child whatsoever during this two year period.

The evidence included a review of Thomas's work history. Basically, Thomas had paid child support regularly until he moved back to Amarillo to live with his mother and work for her in her flower shop. He ceased to draw regular checks, because as he testified, "his needs were met" and they were putting everything he made back into the flower shop to try to make it survive. The evidence also...