Smallwood v. Swarner

• Decision Date: 16 May 1974
• Docket Number: No. 18329,18329
• Court: Texas Court of Appeals
• Parties: Kay SMALLWOOD et vir, Appellants, v. Max J. SWARNER et ux., Appellees.

Page 156

510 S.W.2d 156

Kay SMALLWOOD et vir, Appellants, v. Max J. SWARNER et ux., Appellees.

No. 18329.

Court of Civil Appeals of Texas,

Dallas.

May 16, 1974.

Rehearing Denied June 6, 1974.

John A. Pace, Pace & Chandler, Dallas, for appellants.

George M. McDonald, Kelsoe & Paternostro, Dallas, for appellees.

CLAUDE WILLIAMS, Chief Justice.

This appeal is from a judgment of adoption of Susan Ann Smallwood granted to Max J. Swarner, and his wife Marguerite Swarner, the child's maternal grandparents. Kay Smallwood, the child's natural mother, and her husband B. Stanley Smallwood, Jr., the adoptive father, did not consent to the adoption and they appeal from the decree.

Kay Smallwood was first married to Hugh Tankersley. Of that marriage two children were born: Stephen, on January 31, 1959, and Susan Ann, the subject of the present adoption, on September 9, 1961 . Stephen was adopted in 1967 by his maternal grandparents, with his mother's consent. In 1966 Kay married B. Stanley Smallwood, Jr., and a year later she consented to the adoption of Susan Ann by Smallwood. Susan Ann continued to live in the home of her natural mother and adoptive father until on or about May 27, 1971, when she was placed in the home of her maternal grandparents. On June 4, 1973, Mr. and Mrs. Swarner filed their petition for adoption in which they alleged that for more than two years the natural mother and stepfather of said child had not contributed substantially to the support of Susan Ann and for that reason written consent of the natural mother and stepfather was not necessary. Petitioners also alleged that it would be for the best interest of the minor child to live permanently in their home and with her natural brother. The Smallwoods filed an answer contending that custody of the minor child had been placed with the Swarners only temporarily in 1971 solely for the purpose of permitting the child to attend a particular school. The trial judge appointed an attorney ad litem to represent the interests of the minor and also requested and received a report from the chief probation officer of the juvenile department. After hearing lengthy testimony from witnesses, including the minor child and her natural brother, the trial court concluded that it would be in the best interest of said minor child that the petition for adoption be granted. The court made findings of fact and conclusions of law supporting the judgment.

In their second point of error appellants complain of the action of the trial court in refusing to grant them a trial by jury. Appellants argue that by authority of the Seventh Amendment to the Constitution of the United States of America and Article I, Section 15 of the Constitution of Texas, Vernon's Ann.St., they were guaranteed a right of trial by jury. We overrule this contention. In Hickman v. Smith, 238 S.W.2d 838 (Tex.Civ.App.--Austin 1951, writ ref'd), the court correctly stated that the right to trial by jury guaranteed by the Constitution is limited to the right of trial by jury as it existed at common law or as provided by statutes in effect at the adoption of our Constitution in 1876. Adoption was unknown to the common law. Neither the statutes pertaining to the adoption in 1876 nor the present adoption statutes had or have any provision for a jury trial. Tex.Rev.Civ.Stat.Ann. art. 46a (Vernon 1969) provides that the trial judge, as distinguished from a jury, shall grant or deny a petition for adoption, as in his discretion the rights and welfare of the child may require. Accord Fearrington v. Wright, 410 S.W.2d 855 (Tex.Civ.App.--Waco 1967, writ ref'd n.r.e.); In re Adoption of Pate, 449 S.W.2d 372 (Tex.Civ.App.--El Paso 1969, no writ); In re Jones, 475 S.W.2d 817 (Tex.Civ.App.--Eastland 1972, writ ref'd n.r.e.).

While the pleadings originally contained matters relating to custody such issues were severed by the trial court prior to the trial of the issues on adoption. In such a posture of the case the court correctly denied a jury trial.

In their first and sixth points of error appellants argue that the court erred in granting the adoption because there was no evidence or insufficient evidence to support the judgment as required by Tex.Rev.Civ.Stat.Ann. art. 46a, § 6(a) (Vernon 1969). Under these points appellants argue primarily that absent the consent of the natural parents the adoption statute does not grant authority to the juvenile court to award adoption based upon the best interests of the minor. They contend that there was no evidence or insufficient evidence to support the finding that for two years prior to the petition for adoption, they did not contribute substantially to the support of said minor and therefore the statutory exception concerning consent of the natural parents had not been met. We overrule these points.

Petitioners in the lower court sought adoption of the minor child pursuant to the authority of Tex.Rev.Civ.Stat.Ann. art. 46a, § 6(a) (Vernon 1969). ¹ The statute makes two separate exceptions to the general rule that natural parents must consent to the adoption. One exception is abandonment or desertion; the other is failure to support for a period of two (2) years commensurate with financial ability. The first exception is not applicable here. Our question is whether the natural mother and adoptive father have failed to contribute substantially to the support of the minor child for a period of two years so that their written consent is no longer a prerequisite to the child's adoption by petitioning grandparents. The trial court in appropriate findings of fact and conclusions of law found that Mr. and Mrs. Smallwood had not contributed substantially to the support of the child commensurate with their financial ability for a period of two years and that there was no legal arrangement sufficient under the law concerning the placing of the child with the grandparents which would excuse Mr. and Mrs. Smallwood from providing such support and maintenance. The court concluded that it is in the best interest of said child that the petition for adoption be granted and as judge of the juvenile court of Dallas County, Texas he consented to the decree.

We look to the record to determine whether there was evidence to support the findings. We consider it unnecessary to unduly lengthen this opinion by a detailed recitation of the voluminous testimony both verbal and documentary, presented to the trial judge. We summarize the essential and material testimony, as follows: Both Mr. and Mrs. Smallwood testified that during the period between May 1971 and May 1973 they were both employed and had a combined gross income of over $10,000 per year. They each testified that during that two-year period while Susan was living in the home of her grandparents they did not pay anything for the cost and care of maintaining the minor child. Mr. Smallwood testified that during that period of time he and his wife offered to give the Swarners some money to help support the minor but that such offer had been refused. When pressed concerning this matter, Smallwood admitted that he did not have any checks to evidence any money that he had tendered to the Swarners which they had refused to accept. Mrs. Smallwood said that at one time she asked her father Mr. Swarner, if he needed financial help to take care of Susan and was told that such help was not needed.

In justification for that admitted failure to contribute to the support of Susan during the two-year period both the Smallwoods testified that early in 1971 they entered into an agreement with Mr. and Mrs. Swarner whereby the Swarners would take Susan into their home temporarily and send her to a school in the Highland Park Independent School District. As a part of this arrangement they were not to be obligated for any part of Susan's care and maintenance since the Swarners were well able to take care of the child without their help. They testified that Susan was to return to their home each weekend and it was never their intention nor part of the arrangement that Susan was to remain permanently in the Swarner home.

Both Mr. and Mrs. Swarner testified that they...