Marriage of Hill, Matter of

• Decision Date: 23 February 1995
• Docket Number: No. 07-94-0206-CV,07-94-0206-CV
• Parties: In the Matter of the MARRIAGE OF Marvin Marshall HILL and Anita Mae Hill and in the Interest of Jason Harlan Hill, Jennifer Marie Hill, Heidi Frances Hill, and Hannah Mae Hill, Minor Children.
• Court: Texas Court of Appeals

Page 753

893 S.W.2d 753

In the Matter of the MARRIAGE OF Marvin Marshall HILL and Anita Mae Hill and in the Interest of Jason Harlan Hill, Jennifer Marie Hill, Heidi Frances Hill, and Hannah Mae Hill Minor Children.

No. 07-94-0206-CV.

Court of Appeals of Texas Amarillo.

Feb. 23, 1995.

Rehearing Overruled March 22, 1995.

William L. Rivers, Amarillo, for appellant.

Randall L. Sherrod, Dist. Atty., John L. Owen, Asst. Dist. Atty., Canyon, for Texas Dept. of Protective and Regulatory Services.

William E. Kelly, Canyon, Attorney Ad Litem.

Law Offices of Karon K. Connelly, Karon K. Connelly, Amarillo, for intervenors James O. Osteen and Dee Ann Osteen.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

BOYD, Justice.

In two points of error, appellant Anita Mae Hill challenges the trial court's decree terminating her parental rights to her minor children: Jason Harlan Hill, Jennifer Marie Hill, Heidi Frances Hill, and Hannah Mae Hill. She asserts that 1) the trial court's judgment is not in conformity with the pleadings, and 2) the trial court erred in instructing the jury that it could terminate appellant's parental rights on grounds without foundation in the pleadings. For reasons later stated, we affirm the judgment of the trial court.

Inasmuch as appellant's challenge is a purely procedural one and does not dispute the sufficiency of the evidence, extensive reference to the facts is unnecessary. Suffice it to say, in its judgment terminating appellant's parental rights to her minor children Jason, Jennifer, Heidi and Hannah, and in accordance with a jury verdict, the trial court appointed appellee Texas Department of Protective and Regulatory Services (TDPRS) as managing conservator of all of the children except Hannah. Appellees Buddy Osteen and Dee Ann Osteen intervened in the suit seeking termination and, again in accordance with the jury verdict, were appointed as managing conservators of Hannah.

In the relevant portions of its active pleading, its second amended original petition, TDPRS pled:

Petitioner would show that termination of any parent-child relationship alleged herein is in the best interest of the children, and further as grounds, would show that:

....

2) The mother of above named children, Anita Mae Hill, has:

a) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children, and

b) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangers the physical or emotional well-being of the children.

In its charge, the trial court instructed the jury:

For the parent-child relationship existing between ANITA MAE HILL and the child the subject of each question to be terminated it must be proved by clear and convincing evidence that ANITA MAE HILL:

1. 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

2. knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; and

3. that termination of the parent-child relationship would be in the best interest of the child.

The gist of appellant's argument under both points of error is that TDPRS, having conjunctively pled as a basis for termination that appellant both engaged in conduct which endangered the physical or emotional well-being of the children or knowingly placed the children with persons who engaged in such conduct, see Tex.Fam.Code Ann. § 15.02(a)(1)(E) (Vernon Supp.1995), and knowingly placed the children in conditions or surroundings which endangered the emotional or physical well being of the children, see id. § 15.02(a)(1)(D), was required to obtain a favorable jury finding on both counts. However, in the charge, the jury was instructed that it might authorize termination upon a finding that appellant engaged in either one of the counts. That being so, although she does not challenge the sufficiency of the evidence per se, appellant concludes that by instructing the jury that it could authorize termination by finding only one, rather than both, of the alleged delinquencies as they were conjunctively pled, the court allowed the termination of her parental rights "upon a ground which ha[d] no foundation in the pleading." She also argues that the trial court's instruction lessened TDPRS's burden of proof from that required by its pleading. In support of that position, appellant cites the rule recognized by us in the case of In the Interest of S.R.M., 601 S.W.2d 766, 767 (Tex.Civ.App.--Amarillo 1980, no writ), that parental rights, being of constitutional dimension, may not be terminated on unpled grounds.

In considering appellant's challenge, we note that under section 15.02(1)(D) of the Texas Family Code, the proof must show the parent knowingly placed or permitted the child to remain in an environment that endangers the child's physical or emotional...