Richardson v. Green
| Decision Date | 27 June 1984 |
| Docket Number | No. C-2366,C-2366 |
| Citation | 677 S.W.2d 497 |
| Parties | Wesley Dwight RICHARDSON, Petitioner, v. Priscilla Kay GREEN, Respondent. |
| Court | Texas Supreme Court |
Frank Maloney & Associates, Thomas A. Autry, Austin, for petitioner.
Zachry, Kearney, Hill, Shaw & Beatty, Tom L. Zachry, Fort Worth, for respondent.
Priscilla Kay Green brought suit and obtained a jury verdict terminating Wesley Dwight Richardson's parental rights to their son. The court of appeals in an unpublished opinion affirmed the judgment holding that hearsay statements of the child were admissible as exceptions to the hearsay rule and the evidence was sufficient to support the judgment. We reverse the judgments of the courts below and render judgment reinstating Richardson's parental rights.
Priscilla and Wesley, the parties to this action, were divorced in October 1979. Priscilla was appointed managing conservator of their son, and Wesley, as possessory conservator, was allowed visitation rights. Priscilla and Wesley had little trouble for more than two years in arranging the child's visits. In late January of 1982, however, Priscilla Green, then remarried, apparently suspected that Wesley had sexually abused the child during his weekend visits. Initially she obtained various equitable remedies to curtail Wesley's visitation rights, but after a hearing on the subject of sex abuse, Wesley's visitation rights were restored. In July 1982, Priscilla Green brought this action to terminate Wesley's parental rights, alleging that he had sexually abused his three-year-old son.
The child did not testify, but the evidence upon which the verdict was founded consisted wholly of what the child is reputed to have told his maternal grandmother, mother, stepfather, a caseworker for the Department of Human Resources, and an assistant county attorney. There is no corroboration of the testimony about abuse. Wesley, the father, made and preserved objections that the statements by the child to those who testified were hearsay. We agree.
The child's grandmother testified that in late December 1981, she noticed that the child's rectum was inflamed and at that time he said that it hurt when she put her finger in his rectum while cleaning him. The grandmother testified that on a later occasion, the child told her that he could not tell her what he and his father did during the weekend visits because it was a secret.
The mother and her husband testified that the child, after a visit with his father on January 24, told them that it hurt his rectum when his father put his finger in it. The mother testified that she found bloodstains on the boy's underwear, so she immediately took him to Dr. Jones, the child's pediatrician. The record showed that Wesley had told the mother on January 23 that the child had diarrhea and had messed in his clothes. Dr. Jones examined the child and found no evidence of sexual abuse and that the presence of blood was consistent with diarrhea.
On January 25, after leaving Dr. Jones' office, the mother and grandmother took the child to see Mrs. Adams, a caseworker at the Texas Department of Human Resources in Fort Worth. Mrs. Adams, over objection, was also permitted to testify about statements that the boy made to her. Wesley later consented to the admission of a videotape of a later interview of the child by Mrs. Adams. He consented because he wanted to use the tape to impeach Adams' testimony that she did not ask the child leading questions.
Additional testimony came from an assistant county attorney. She was also allowed to testify that the child had told her the father hurt him when he "stuck his finger up my bobo."
In addition to his expert testimony that his medical examinations showed no signs of abuse, Dr. Jones also testified that he asked the child, while examining his rectum, "if anyone had ever done this to him before, and he said no." Three clinical psychologists, Dr. Helge, Dr. Baker, and Dr. Bigler, were called as expert witnesses. Dr. Helge testified that although the young boy was nonresponsive to his questions regarding sexual abuse, he found nothing in the child's personality tests that indicated the child was a victim of sexual abuse. Dr. Baker interviewed and examined Wesley and found no sexual deviancy on the part of Wesley. At one point during his testimony Dr. Baker stated on the basis of his interviews with Priscilla, Wesley and the child, that he thought it was more probable than not that some abuse had occurred. Later, Dr. Baker admitted he had no firm belief that Wesley had abused the boy and that he was "not prepared to state Wesley had abused [the child]." Finally, Dr. Bigler testified that on the basis of his tests he found no tendency or inclination in Wesley toward sexual deviancy. He further testified that he had no reservations about allowing Wesley to retain his visiting privileges with the child. Like Dr. Baker, Dr. Bigler stated he had no firm belief that any abuse occurred. Dr. Bigler testified that "nothing that I saw in the test data or my interview with [Wesley]" justified terminating his parental rights.
Section 15.02 of the Family Code sets out the proof necessary for an involuntary termination of parental rights. First, there must be a finding that the parent has committed one of eleven enumerated acts and second, that the termination is in the best interest of the child. The trial court made those findings. The evidence in support of the findings must be clear and convincing before a court may render judgment for involuntary termination. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1980); In re G.M., 596 S.W.2d 846 (Tex.1980).
The mother, Priscilla Green, initially contends that the Texas Supreme Court does not have jurisdiction of this case, because the 1983 amendment of article 1821(3), Tex.Rev.Civ.Stat.Ann. makes judgments of the courts of appeals final in all cases of child custody, support or reciprocal support. Priscilla argues that actions to terminate parental rights are child custody cases.
There is a significant distinction between a custody suit and a termination action. Termination does not merely end the right of the parent to physical possession of the child, subject to modification; it is an action with constitutional dimensions, terminating forever the natural right which exists between parents and their children. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976). The substantial difference between suits for possession of children and those to terminate a parent-child relationship as well as "the difference in proceedings" justifies the caution with which courts have characteristically considered termination cases. Brokenleg v. Butts, 559 S.W.2d 853, 858 (Tex.Civ.App.--El Paso 1977, writ ref'd n.r.e.), cert. denied, 442 U.S. 946, 99 S.Ct. 2894, 61 L.Ed.2d 318 (1979). A judgment to terminate involuntarily a person's parental rights must be based on clear and convincing evidence and not on the Family Code standard of preponderance of the evidence applicable to custody cases. Santosky v. Kramer, 455 U.S. 745, 746, 747-48, 102 S.Ct. 1388, 1390, 1391, 71 L.Ed.2d 599 (1980); Note, Standard of Proof in Parental Rights Termination: Santosky v. Kramer, 36 Sw.L.J. 1069 (1982). See TEX.FAM.CODE ANN. § 11.15(b) (Vernon Supp.1984).
Custody and termination actions are governed by separate chapters in Title 2 of the Family Code. See TEX.FAM.CODE ANN. chs. 14, 15 (Vernon Supp.1984). If the legislature had intended the 1983 amendment to encompass all actions under Title 2 of the Family Code, it would have stated: "all cases of divorce, or suits affecting the parent-child relationship" instead of limiting the exclusion of jurisdiction to "or child custody, support, or reciprocal support." We therefore hold that Article 1821(3) does not include involuntary termination of parental rights actions and that the Supreme Court of Texas continues to have jurisdiction to review court of appeals' judgments in such cases.
The court of appeals determined the grandmother's statements of what the child told her were admissible as present bodily condition and state of mind exceptions to the hearsay rule. While denying the probative value of these statements, the father does not attack their admissibility. Wesley disputes the court's holding that the child's alleged statements to the mother were admissible under the res gestae exception. The court of appeals was convinced that upon the child's return from his weekend visit he did not have sufficient opportunity to fabricate his response to his mother's...
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