Mayfield v. Smith, 1373

• Citation: 608 S.W.2d 767
• Decision Date: 30 October 1980
• Docket Number: No. 1373,1373
• Parties: Billy Charles MAYFIELD, Appellant, v. Romana A'nette SMITH et vir, Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 767

608 S.W.2d 767

Billy Charles MAYFIELD, Appellant, v. Romana A'nette SMITH et vir, Appellees.

No. 1373.

Court of Civil Appeals of Texas, Tyler.

Oct. 30, 1980.

Rehearing Denied Dec. 11, 1980.

Gerry MacCamy, East Texas Legal Service, Inc., Beverly Bass, Longview, for appellant.

James T. Foley, James R. Pierce, Tyler, for appellees.

McKAY, Justice.

This is a suit to terminate the parental rights of the natural father of two children whose ages were six years and five years at the time of trial.

The petition of the natural mother and her husband to terminate the parental rights of the father, appellant Billy Charles Mayfield, alleged that termination was in the best interest of the children; that 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, and that he failed to support the children in accordance with his ability during a period of one year ending within six months of the date of the filing of this petition. It was also alleged that it would be in the best interest of the children that the children be adopted by their stepfather, Johnny Smith, and that their names be changed to Smith. Appellant filed a general denial.

Trial was to the court, and judgment was rendered terminating the parent-child relationship between appellant and the children, and decreed that adoption of the children by Johnny Smith was granted and their names changed to Smith.

The trial court made and filed findings of fact that (1) Billy Charles Mayfield and Ramona A'nette Smith were married January 15, 1972, and two children were born to them; (2) that the parents were divorced on September 15, 1975, the mother being appointed managing conservator and the father possessory conservator, and the father was ordered to pay $80 per month for child support, with $40 to be paid on the first and fifteenth of each month until the youngest child reaches 18 years of age; (3) the clerk's records showed that the appellant paid the first payment of $70 on September 28, 1978, and payments since that date had been made on time but short some months and never any amount on the arrears; (4) petition for termination and adoption was filed on August 21, 1978, because appellant had failed to support the children in accordance with his ability during a period of one year beginning March 15, 1977, and ending March 15, 1978; (5) appellant's testimony and answers to interrogatories show that he received a five-year probated sentence for assault with intent to rob in June, 1971, and that he had consciously, deliberately and intentionally, by his own conduct, violated his probation by evading arrest and was arrested and confined in the Texas Department of Corrections from December 3, 1976, until August 8, 1978; (6) when appellant visited the children he would frighten them and cause them to cry and become upset by pulling on them and looking under their clothing to see if they were clean, or pulling on their hair to prevent them from running away from him, which acts upset the children and disrupted their emotional and physical well being; and (7) petitioners (appellees) testified that the step-father loved and cared for the children as his own, and that they had purchased a three bedroom home so each child could have a separate room, and that the family should all have the same surname and that adoption was in the best interest of the children.

Conclusions of law made by the trial court were:

"1.

When two parties are divorced and the court has considered the circumstances of the parents and finds the Respondent is able to make child support payments and that it is in the best interest of the children, the the (sic) Respondent is legally bound and subject to contempt for failure to pay if no court relief is sought 14.08(a) TEXAS FAMILY CODE 2.

Further if such parent fails to support the children in accordance with his ability during a period of one year ending within six months of the date of filing of this petition (§ 15.02(E) of the TEXAS FAMILY CODE); and 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 (§ 15.02(D) of the TEXAS FAMILY CODE); and the court finds that termination of the parent-child relationship between the children and the Respondent is in the best interest of the children (§ 15.02(2) of the TEXAS FAMILY CODE), then the court may grant the termination. 'In a suit to terminate the parent-child relationship, the broad rule which applies is that the best interest of the child shall always by the primary consideration of the court,' Wiley vs. Spratlan, 529 S.W.2d 616 (TEX.CIV.APP.1975). Section 15.02(1) (Supplement 1975), of the TEXAS FAMILY CODE, authorizes the court to terminate the parent-child relationship if the parent has engaged in the conduct specified in any of the various subparagraphs of that section, and if the court finds termination to be in the best interests of the children, H.W.J. Sr. Appelant (sic) vs. The State Dept. of Public Welfare, 543 S.W.2d 9 (TEXAS CIV.APP. 10-12-76)

3.

Neither would imprisonment of and by itself constitute the conduct described by subparagraph (E) of the TEXAS FAMILY CODE, § 15.02; But if such imprison-(sic) is the result of, or is coupled with, a voluntary, deliberate and conscious course of conduct which has the effect of placing or allowing the children to remain in conditions which endanger their physical or emotional well-being, a judgment terminating the parent-child relationship may be justified, H.W.J. Sr. vs. The State Department of Public Welfare, 543 S.W.2d 9 (TEX.CIV.APP.1976).

4.

If the Court also finds that the adoption of the children is in the best interest of the children and that all prerequisites and requirements for adoption have been met, then the Court may grant the adoption also, § 16.08(a) of the TEXAS FAMILY CODE."

Appellant brings points of error contending that the trial court erred in terminating the parent-child relationship because there is no evidence or insufficient evidence (1) that he had 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, or (2) that he had failed to support the children in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition. These points are directed to Tex.Fam.Code Ann. § 15.02(1)(D) & (E) (Vernon 1975); now § 15.02(1) (E) and (F) (1979). Section 15.02 (1975) 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:

(D) 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; or

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

* * * * and

(2) termination is in the best interest of the child."

This suit was filed August 21, 1978, but the trial was not held until September 19, 1979. Appellant had been incarcerated in the State prison system since some date in 1976, and he was released on August 9, 1978, twelve days before this suit was filed. After release appel...