S. R. M., In Interest of, 9150

• Decision Date: 28 May 1980
• Docket Number: No. 9150,9150
• Citation: 601 S.W.2d 766
• Parties: In the Interest of S. R. M., a child.
• Court: Texas Court of Appeals

Page 766

601 S.W.2d 766

In the Interest of S. R. M., a child.

No. 9150.

Court of Civil Appeals of Texas, Amarillo.

May 28, 1980.

John W. Kennedy, West Texas Legal Services, Lubbock, for appellant.

Lewis P. Terrell, Lubbock, for appellees.

DODSON, Justice.

This is an action to terminate a parent-child relationship and to adopt the child. The child is S. R. M. The appellant is L. M. S., the natural mother of the child. The appellees are E. E. O. and wife N. L. O. The appellees were the petitioners for termination and adoption in the trial court. After a bench hearing, the trial court granted the appellee's petition for adoption. The natural mother appeals from this judgment. On appeal, the natural mother maintains, inter alia, that the judgment should be reversed because the trial court terminated her parental rights to the child upon unpled grounds and that the evidence is legally insufficient to support the trial court's findings on the unpled grounds for termination. Sustaining these contentions of the appellant, we reverse and render.

By court decree, the appellant and W. F. M., Jr., were divorced on 17 June 1977. During the marriage the appellant gave birth to two male children. Prior to the divorce, the appellant and W. F. M., Jr., had been living apart for approximately eighteen months. The appellant had been living with a male companion for several months before the divorce proceeding. S. R. M. was born on 9 March 1977.

By the divorce decree, W. F. M., Jr., was appointed managing conservator of the two children and the appellant was appointed possessory conservator. Shortly after the divorce the appellant and her male companion went to Minnesota. They remained in Minnesota for approximately two and one-half months. Upon returning to Lubbock, Texas, in September of 1977, they moved into the house with W. F. M., Jr. and the two children. During this period, the appellant cared for the children while W. F. M., Jr., was at work. Within two or three weeks the appellant and her male companion moved out.

After the divorce proceedings, and at other various times, W. F. M., Jr.'s mother kept the children while he was at work. Also, the appellees' teenage daughter baby-sat with the children. In late September or early October of 1977, E. E. O. went to W. F. M., Jr.'s residence, found the father sick and attempting to care for the children by himself. At this time E. E. O. obtained permission from W. F. M., Jr., to take the children home with him. After W. F. M., Jr., recovered from his illness, he picked up the oldest boy, but left S. F. M. with E. E. O. W. F. M., Jr., instructed E. E. O. that the appellant was not to visit with the child without his prior consent. In December of 1977, the appellant determined from W. F. M., Jr. that S. F. M. was living with the appellees. At Christmas time, she visited S. F. M. and gave him presents.

In early January of 1978, W. F. M., Jr., took both of the children to the appellant and left them with her. He, however, did not want the managing conservatorship changed. The appellant testified that he wanted to have the right to determine where the children would be but that he did not want to pay child support. Sometime later in the month of January 1978, E. E. O. went to the appellant's house, found her sick and obtained her permission to take S. F. M. home with him.

The appellees have five children ranging in age from approximately 14 years of age to 26 years of age. Among their children is an unmarried daughter who was approximately twenty-two years of age at the time of the trial. This young woman was employed in an administrative position at a nursing home in Rotan, Texas.

After E. E. O. obtained S. F. M. from the appellant in January of 1978, the unmarried daughter took S. F. M. to Rotan, Texas to live with her. The child remained with the young lady in Rotan until approximately October of 1978. During this period, the young daughter brought the child to Lubbock almost every week-end, and the appellant visited with the child on the week-ends and provided some clothes for him. The appellant and E. E. O. discussed the matter of monetary support for the child. E. E. O. told her that he did not want and would not take any money for keeping the child because the appellant needed the money to support herself and the other child.

On 1 September 1978, the appellant married R. L. S., and on 2 November 1978, the appellant filed a motion to have herself appointed managing conservator of the two children. The appellees filed a petition on 5 January 1979, to terminate the parent-child relationship of the appellant and W. F. M., Jr., with S. F. M. In the same cause, the appellees also filed a petition to adopt S. F. M.

In the petition for termination, the appellees allege that:

Termination of the parent-child relationship between L. F. M. S. and the child is in the best interest of the child, and such termination is requested. As further grounds for termination, Petitioners allege that this parent voluntarily left the child alone or in the possession of another not the parent and, although expressing an intent to return, failed to do so without providing adequate support of the child and remained away for a period of at least six months.

Termination of the parent-child relationship between W. F. M. and the child is in the best interest of the child, and such termination is requested. As further grounds for termination, Petitioners allege that this parent has executed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by section 15.02 of the Texas Family Code. This affidavit or relinquishment is attached to this petition or will be filed herein. ¹

No other grounds for termination are alleged in the petition.

By the first quoted paragraph from appellees' petition, they purport to allege grounds for termination under section 15.02(1)(C) of the Texas Family Code. Tex.Fam.Code Ann. § 15.02(1)(C) (Vernon Supp.1980). This subsection provides that the parent-child relationship may be terminated when the parent "voluntarily (leaves) the child alone or in the possession of another without providing adequate support of the child and remain(s) away for a period of at least six months." The undisputed evidence shows that the appellant did not remain away from the child for a period of at least six months. In fact, appellee E. E. O. admitted by his testimony at the trial that the appellant did not remain away from the child for that long. Thus, the trial court refused to find the grounds pled in support of the judgment. Accordingly, under rule 299 of the Texas Rules of Civil Procedure, we may not supply the omitted finding.

Nevertheless, the trial court did find, inter alia, that the appellant (1) voluntarily left the child alone, and in the possession of Mr. and Mrs. E. E. O., and expressed an intent not to return; (2) voluntarily left S. F. M. in the possession of Mr. and Mrs. E. E. O., without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months; (3) engaged in conduct and knowingly placed the child with A. G., who engaged in conduct which would endanger the physical or emotional well-being of S. F. M.; and (4) from the date of the divorce, until October, 1978, failed to support S. F. M. in accordance with her ability. None of the above findings are supported by the pleadings.

The appellant maintains that the judgment should be reversed because the trial court terminated her parental rights to the child upon unpled grounds. In this connection, the appellees contend that the appellant impliedly consented to a trial upon the unpled grounds by not excepting to the pleadings and by not objecting to the introduction of evidence related to the unpled grounds. In support of their position, the appellees rely on Robinson v. Reliable Life Insurance Co., 554 S.W.2d 231 (Tex.Civ.App. Dallas 1977), aff'd, 569 S.W.2d 28 (Tex.1978), and Adcock v. King, 520 S.W.2d 418 (Tex.Civ.App. Texarkana 1975, no writ). We do not consider these cases controlling in this instance. The issues tried by consent in these cases do not involve the same mandatory statute nor are they of the same constitutional dimension as the issues present in the case before us.

We agree that the judgment should be reversed because the trial court terminated the appellant's parental rights to the child upon unpled grounds. Section 11.07(a) of the Texas Family Code provides that "A suit affecting the parent-child relationship shall be commenced by the filing of a petition as provided in this chapter" (emphasis added). Tex.Fam.Code Ann. § 11.07(a) (Vernon Supp.1980). Section 11.08(b)(10) of the Texas Family Code further provides that "The petition must include: (10) a statement describing what action the court is requested to make concerning the child and the statutory grounds on which the request is made" (emphasis added). Tex.Fam.Code Ann. § 11.08(b)(10) (Vernon Supp.1980). In a juvenile transfer proceeding, the Supreme Court of Texas determined, among other things, that the word "must" as used in section 53.04 of the Texas Family Code and other sections set forth therein denotes mandatory statutory requirements. In the Matter of D. W. M., 562 S.W.2d 851, 852 (Tex.1978); In the Matter of H. S., Jr., 564 S.W.2d 446, 448 (Tex.Civ.App. Amarillo 1978, no writ). Accordingly, we conclude that the word "must" as used in section 11.08(b)(10) denotes a mandatory statutory requirement; and therefore, the statutory grounds for termination must be stated in the petition.

Furthermore, with good reason, the legislature mandatorily required that the statutory...