L.R.M., In Interest of

• Decision Date: 12 January 1989
• Docket Number: No. 2-87-247-CV,2-87-247-CV
• Parties: In the Interest of L.R.M. and J.J.M., Children.
• Court: Texas Court of Appeals

Page 64

763 S.W.2d 64

In the Interest of L.R.M. and J.J.M., Children.

No. 2-87-247-CV.

Court of Appeals of Texas,

Fort Worth.

Jan. 12, 1989.

Harry Ward, Jr., Fort Worth, for appellant.

Beverly Fisher, Asst. Dist. Atty., Tarrant County Child Welfare, Chris Marshall, Asst. Dist. Atty., Fort Worth, for respondent.

Before FENDER, C.J., and KELTNER and LATTIMORE, JJ.

OPINION

LATTIMORE, Justice.

This is an appeal from a decree terminating the parental rights of appellant, K.M., under TEX.FAM.CODE ANN. sec. 15.02 (Vernon 1986). Trial was to the jury. K.M. has perfected this appeal.

Appellant is the biological mother of two girls: L.R.M., age six, and J.J.M., age five. The two girls have different fathers; neither father provided financial support for the children. On August 23, 1986, the Fort Worth Police Department investigated a complaint that appellant's boyfriend, O.D., sexually abused L.R.M. On August 25, 1986, the Juvenile Court of Tarrant County ordered the children placed under the temporary managing conservatorship of the Texas Department of Human Services. On September 21, 1987, the controversy was submitted to a jury on special issues and the trial court terminated the parent-child relationships between the children and appellant as well as the relationships between the children and their respective fathers.

Appellant raises two points of error. Both points of error, one for each child, allege insufficient evidence to support the jury's finding appellant engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children.

The natural right existing between parents and their children is of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). The rights to conceive and raise one's own children have been deemed "essential," "basic civil rights 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, 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.

In proceedings to terminate the parent-child relationship brought under TEX.FAM.CODE ANN. sec. 15.02, the petitioner must establish one or more of the acts or omissions enumerated under subdivision (1) of the statute and must additionally prove, as required under subdivision (2) that termination of the parent-child relationship is in the best interest of the child. Richardson v. Green, 677 S.W.2d 497, 499 (Tex.1984). Both elements must be established and proof of one of the two elements does not relieve the petitioner of the burden of proving the other element. See Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex.1976).

Termination of parental rights 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." 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 or the allegations sought to be established." Id. Early Texas cases held "[n]o doctrine is more firmly established than that issues of fact are resolved from a preponderance of the evidence, and special issues requiring a higher degree of proof than a preponderance of the evidence may not be submitted to a jury." Sanders v. Harder, 148 Tex. 593, 598, 227 S.W.2d 206, 209 (1950); see also Newland v. Newland, 529 S.W.2d 105, 108 (Tex.Civ.App.--Fort Worth 1975, writ dism'd); Boenker v. Boenker, 405 S.W.2d 843, 847-48 (Tex.Civ.App.--Houston [14th Dist.] 1966, writ dism'd); 35 Tex.Jur.3d Evidence sec. 106 (1984). That is no longer the law. As in the instant case, juries may be instructed to determine special issues by clear and convincing evidence. State v. Addington, 588 S.W.2d 569, 570 (Tex.1979) (per curiam).

The clear and convincing standard of proof required at the trial level is well settled, but the standard of appellate review to be applied by this court is not as well defined. The State argues we should overrule appellant's point of error if the trial court's judgment is "supported by some evidence of probative value and is not against the great weight and preponderance of the evidence." To support this point, the State cites this court's opinion in City of Arlington v. Wayland, 711 S.W.2d 234 (Tex.App.--Fort Worth 1985), aff'd in part, rev'd in part per curiam, 711 S.W.2d 232 (Tex.1986). In Wayland, the trial court applied the preponderance of the evidence standard of proof, so this court was considering whether the evidence at trial was sufficient to satisfy the preponderance of the evidence standard. Id. at 237. The other cases cited by the State are also preponderance of the evidence cases: Garza v. Alviar, 395 S.W.2d 821, 822 (Tex.1965) (personal injury action); Simmons v. Jackson, 653 S.W.2d 935, 936 (Tex.App.--Fort Worth 1983, no writ) (wrongful death action).

Other states have considered whether a different standard of appellate review should apply when reviewing a case decided using the clear and convincing standard of proof. Some courts have held the appellate court should apply the same standard of review regardless which standard of proof was required at trial. Webber v. Smith, 129 Ariz. 495, 632 P.2d 998, 1001 (App.1981); Utica Mutual Ins. Co. v. Monarch Ins. Co. of Ohio, 250 Cal.App.2d 538, 58 Cal.Rptr. 639, 642 (1967); Gold v. Maxwell 176 Cal.App.2d 213, 1 Cal.Rptr. 226, 230 (1959); Duke City Lumber Co., Inc. v. Terrel, 88 N.M. 299, 540 P.2d 229, 231 (1975). The Arizona Court of Appeals reasoned that "[s]ince the weight to be given to evidence is peculiarly within the province of the trial court, it is the trial court and not the appellate court which draws a distinction between evidence which is clear and convincing and evidence which merely preponderates." Webber, 632 P.2d at 1001. Decisions of other states, including earlier Arizona decisions, have held appellate courts should determine whether the trial court adhered to the clear and convincing standard. Washington Nat'l Ins. Co. v. Dale Benz, Inc., Contractors, 94 Ariz. 204, 382 P.2d 678, 679 (1963); Poley v. Bender, 87 Ariz. 35, 347 P.2d 696, 698 (1959); Murillo v. Hernandez, 79 Ariz. 1, 281 P.2d 786, 791 (1955); Fox v. Wilson, 211 Kan. 563, 507 P.2d 252, 265 (1973); In re Shirk's Estate, 194 Kan. 671, 401 P.2d 279, 280-81 (1965); In re Dodge, 50 N.J. 192, 234 A.2d 65, 91 (1967); Ayres v. Cook, 140 Ohio St. 281, 43 N.E.2d 287, 291 (1942); Hickey v. Ross, 197 Okla. 543, 172 P.2d 771, 773 (1946); Brown v. Warner, 78 S.D. 647, 107 N.W.2d 1, 5 (1961); Paulsen v. Coombs, 123 Utah 49, 253 P.2d 621, 624 (1953). The Kansas Supreme Court explained a "finding that evidence is sufficient to be clear and convincing should not be disturbed unless it may be said as a matter of law that no one could reasonably find the evidence to be clear and convincing." In re Shirk's Estate, 401 P.2d at 281 (quoting 5A C.J.S. Appeal and Error sec. 1656(9), p. 519 (1958)). The court reasoned "this court does not lay down a rule of law for the guidance of the trial courts without reserving the right to review and police their actions should they be charged with erroneous or arbitrary application or misapplication of the rule." Id.

Texas law requires this court to determine if the trial court adhered to the clear and convincing standard of proof. Baxter v. Tex. Dept. of Human Resources, 678 S.W.2d 265, 267 (Tex.App.--Austin 1984, no writ). The Texas Supreme Court has held termination proceedings should be "strictly scrutinized." Holick, 685 S.W.2d at 20: In re G.M., 596 S.W.2d at 846. "In reviewing the factual sufficiency of the record in a termination suit, [the court of appeals] 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." G.M. v. Texas Dept. of Human Resources, 717 S.W.2d 185, 187 (Tex.App.--Austin 1986, no writ). However, it is imprecise to say the appellate court should apply the clear and convincing standard of proof because the standard of proof must, by definition, be applied in the trial court. The Dallas Court of Appeals recognized this distinction in Neiswander v. Bailey, 645 S.W.2d 835, 835-36 (Tex.App.--Dallas 1982, no writ) (citing Beeler v. American Trust Co., 24 Cal.2d 1, 147 P.2d 583, 600 (1944) (Traynor, J., dissenting) and Comment, Evidence: Clear and Convincing Proof: Appellate Review, 32 CALIF.L.REV. 74 (1944)). In Neiswander, the court held:

[I]t is the duty of the appellate court in reviewing the evidence to determine, not whether the trier of fact could reasonably conclude that the existence of a fact is more probable than not, as in ordinary civil cases, but whether the trier of fact could reasonably conclude that the existence of the fact is highly probable.

Neiswander, 645 S.W.2d at 835-36. This standard of appellate review recognizes the trier of fact judges the credibility of witnesses. Wayland, 711 S.W.2d at 237; see also Brown, 107 N.W.2d at 5 (appellate court determines if evidence meets minimum standards of clear and convincing, bearing in mind the trier of fact determines credibility of witnesses). However, using the term "highly probable" is an unnecessary complication because, in this context, "highly probable" is merely a synonym for "clear and convincing." Therefore, we prefer to state the rule as follows. When the trier of fact is required to make a finding by clear and convincing evidence, the court of appeals will only sustain a point of error alleging insufficient evidence if the trier of...