Neiswander v. Bailey, 05-81-01238-CV

Decision Date21 October 1982
Docket NumberNo. 05-81-01238-CV,05-81-01238-CV
Citation645 S.W.2d 835
PartiesOscar Franklin NEISWANDER, Appellant, v. Larry Leon BAILEY, et ux, Appellee.
CourtTexas Court of Appeals

James F. Newth, Dallas, for appellant.

Johnny W. Mims, Dallas, for appellee.

Before CARVER, STEPHENS and GUILLOT, JJ.

STEPHENS, Justice.

This is an appeal from a judgment of the district court in which appellant's parental rights to Robert Berry Neiswander and Jennifer Dee-Ann Neiswander were terminated under section 15.02(1)(F) of the Texas Family Code. In his sole point of error, appellant attacks the sufficiency of the evidence showing him to have failed to pay child support in accordance with his ability during a period of one year ending within six months of the date of filing the petition for termination. We overrule this point and affirm.

Termination of parental rights requires, in addition to proof of failure to pay child support in accordance with ability, proof that it is in the best interest of the child. Tex.Fam.Code Ann. §§ 15.02(1)(F), 15.02(2) (Vernon Supp.1982); Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex.1976). Both elements must be proven by clear and convincing evidence. In re G.M., 596 S.W.2d 846 (Tex.1980).

We are unaware of any Texas case setting forth the standard of review to be afforded by an appellate court to those cases which require a fact to be proven by clear and convincing evidence, and none has been called to our attention. The standard of proof is an intermediate one, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., supra, at 847.

We are persuaded that the standard of review should likewise be an intermediate one. Consequently, we hold that in such cases, it 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. 1

The appellant does not challenge the sufficiency of the evidence as to whether termination was in the best interest of the children involved. Thus, that point will not be considered.

The evidence as to appellant's failure to pay in accordance with his ability reveals that appellant was ordered to pay twenty dollars per week as child support pursuant...

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35 cases
  • Clewis v. State
    • United States
    • Texas Court of Appeals
    • 15 Marzo 1994
    ...one, have done this in civil cases by changing the standard of review to track the burden of proof at trial. See, e.g., Neiswander v. Bailey, 645 S.W.2d 835, 835-36 (Tex.App.--Dallas 1982, no writ) (where burden of proof is clear and convincing evidence, standard of review is whether jury c......
  • In re J.F.C.
    • United States
    • Texas Supreme Court
    • 31 Diciembre 2002
    ...Paso 1987, no writ); Subia v. Tex. Dep't of Human Servs., 750 S.W.2d 827, 831 (Tex.App.-E1 Paso 1988, no writ); Neiswander v. Bailey, 645 S.W.2d 835, 836 (Tex.App.-Dallas 1982, no writ). 41. 89 S.W.3d at 25. 42. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685-86, 109 S.Ct......
  • In the Interest of K.R.
    • United States
    • Texas Court of Appeals
    • 8 Junio 2000
    ...in the mind of the fact finder a firm belief or conviction as to the truth of the allegations sought to be established); Neiswander v. Bailey, 645 S.W.2d 835, 836 (Tex. App.-Dallas 1982, no writ) (holding that when assessing legal sufficiency, the standard is not whether the trier of fact c......
  • In re C.H.
    • United States
    • Texas Supreme Court
    • 3 Julio 2002
    ...other jurisdictions, the Fifth Court of Appeals was the first to require an intermediate standard of appellate review. See Neiswander v. Bailey, 645 S.W.2d 835 (Tex.App.-Dallas 1982, no writ) (citing Beeler v. American Trust Co., 24 Cal.2d 1, 147 P.2d 583, 600 (1944) and Comment, Evidence: ......
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