Smith v. McLin

• Decision Date: 22 April 1982
• Docket Number: No. 13385,13385
• Citation: 632 S.W.2d 390
• Parties: Patricia SMITH, Appellant, v. Otis McLIN, et ux., Appellees.
• Court: Texas Court of Appeals

Page 390

632 S.W.2d 390

Patricia SMITH, Appellant, v. Otis McLIN, et ux., Appellees.

No. 13385.

Court of Appeals of Texas, Austin.

April 22, 1982.

Rehearing Denied May 19, 1982.

Regina Rogoff, Legal Aid Society of Central Texas, Austin, for appellant.

William W. Rittenthouse, Austin, for appellees.

PHILLIPS, Chief Justice.

This is a termination of parental rights case. Appellant, Patricia Smith, is the subject child's natural mother. Appellees, Otis and Deanna McLin, petitioned the trial court for termination of appellant's parental rights and sought to adopt the child. Deanna McLin is the child's great aunt. Trial to the court consumed three days; the trial court entered a decree terminating appellant's parental rights and granting adoption. ¹

We affirm the trial court's decree.

Section 15.02 of the Texas Family Code sets out the circumstances under which parental rights may be terminated. The statute, as pertinent to this case, provides:

§ 15.02 Involuntary Termination of Parental Rights

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:

(A) voluntarily left the child alone or in possession of another not the parent and expressed an intent not to return;

and in addition, the court further finds that

(2) termination is in the best interest of the child. Tex.Fam.Code Ann. § 15.02 (Supp.1982). (Emphasis added)

The provisions of § 15.02(1)(A) comprise one of eleven categories of parental misconduct or other action which may justify terminating a parent-child relationship, provided termination is "in the best interest of the child," an additional requirement Appellant, on both no evidence and insufficient evidence points, challenges the trial court's findings with respect to § 15.02(1)(A) and the best interest of the child.

set forth in § 15.02(2). Proof must be by clear and convincing evidence and this Court must strictly scrutinize the proceeding below. In re G.M., 596 S.W.2d 846 (Tex.1980).

After carefully considering the record in this case, we conclude that appellees did prove by clear and convincing evidence that appellant voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return. Appellees also proved by clear and convincing evidence that termination would be in the best interest of the child.

In late December 1977, appellant gave her six month old son to the appellees along with his clothes, his bed, and his immunization record. Appellant now claims that she felt the arrangement was temporary. Both appellees testified that they told appellant they would take the boy only if the arrangement were permanent. According to appellees' testimony, appellant orally assented to the permanent arrangement. Hence, in our view, there is some direct evidence that appellant expressed an intent not to return, and accordingly, her no evidence contention is overruled.

With respect to appellant's claim of factual insufficiency, there is in addition to the direct evidence referred to above, circumstantial evidence consistent with an expressed intention not to return. In March 1978, appellees provided appellant with an affidavit of relinquishment. The instrument, which appellant signed before a notary, manifested a clear intent to completely sever her ties with the child. Because the instrument was defective it could not, standing alone, serve as the proof necessary for termination. It is, however, evidentiary as to appellant's expressed intent not to return. Appellant testified that she did not read the document and believed it was a form allowing the child to benefit from appellees' health insurance. This testimony was directly contradicted by the family member, one E. J. Lott, who actually delivered the instrument to appellant and accompanied her to the notary. Mr. Lott testified that appellant knew the instrument could end her relationship with the child and that appellant was happy with the decision.

The Waco Court considered an affidavit of relinquishment which had been revoked as evidence in support of the requirement of § 15.02(1)(A). Diaz v. Beyer, 611 S.W.2d 726 (Tex.Civ.App.-Waco 1981, writ ref'd n. r. e.). In Diaz, a revoked affidavit of relinquishment coupled with no attempts to see the subject child was considered to be clear and convincing evidence that the parent "voluntarily left the child in the possession of another not the parent and expressed an intent not to return." 611 S.W.2d at 731. Appellant, in this case, had no contact with the child between December 1977 and April 1980.

In this record, there is additional circumstantial evidence consistent with an expressed intent not to return. In June 1978, appellant telephoned appellees. The McLins testified that appellant did not initiate any inquiry about the boy during the call. Finally, in May 1979, appellant wrote the appellees a letter expressing warm feelings for the child, but stressing that she made "the right decision" in giving him up. Appellant explained the letter by testifying that she felt her rights had already been terminated and there was nothing she could do to get the boy back.

Circumstantial evidence may be sufficient to prove grounds under § 15.02. Higgins v. Dallas County Child Welfare Unit, 544 S.W.2d 745 (Tex.Civ.App.-Dallas 1976, no writ). Also, courts may look to a combination of direct and circumstantial evidence. Gonzalez v. Texas Department of Human Resources, 581 S.W.2d 522 (Tex.Civ.App.-Corpus Christi 1979, writ ref'd n. r. e.). Finally, a trial judge is not required to accept the truth or accuracy of a mother's testimony as to her past actions or her future intentions. D---- F---- v. State, 525 S.W.2d 933 (Tex.Civ.App.-Houston (1st Dist.)

1975, no writ); see also In re E.S.M., 550 S.W.2d 749 (Tex.Civ.App.-Houston (1st Dist.) 1977, writ ref'd n. r. e.).

Under the above authorities, this Court has followed the Supreme Court's instruction from In re G.M., supra, and carefully scrutinized the proceeding below. The weight and probative force of evidence, of course, is entirely for the trier of fact. Likewise, the trier of fact, the district court in this instance, is the exclusive judge of the credibility of the witnesses, and the weight to be attached to their testimony. Harrell v. Sunylan Co., 128 Tex. 460, 97 S.W.2d 686 (1936). The trier of fact may believe a witness although he has been contradicted, and, likewise, it may believe the testimony of one witness and reject the testimony of other witnesses. The court may accept part of the testimony of one witness and disregard the remainder. There is clear and convincing evidence that appellant left the child, expressing an intent not to return.

In Holley v. Adams, 544 S.W.2d 367 (Tex.1976), the Supreme Court compiled a list of factors which may be considered in determining the best interest of the child. Several are relevant to this case:

1. the emotional and physical needs of the child now and in the future;

2. the parental abilities of the individuals seeking custody;

3. the plans for the child by the individuals seeking custody;

4. the stability of the home;

5. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one;

6. any excuse for the acts or omissions of the parent. 544 S.W.2d at 372.

The evidence as to best interest in this case supports the trial court's decree. In December 1977, when appellant turned the child over to appellees, she was in financial difficulty and in a depressed state. She gave her other two children to relatives at that time also. There was testimony that appellant did not properly nourish and clothe the boy during the six months she had him. His immunizations were not current and he spent most of his time being cared for by an infirm, eighty year old woman. Appellant had no contact with the boy between December 1977 and April 1980 and personally contributed nothing to his support during that period.

At all times relevant to this case, appellant has been married to Charles Ernest Smith. For most of this time, Smith has been either a prisoner or a fugitive from justice. Appellant expresses no intent to divorce Smith and has resided with him whenever he is at liberty. She has, however, been involved with other men during his absences. Because appellant intends to remain married to Smith and because he faces lengthy penitentiary time, it is unlikely that appellant will be able to provide a "two parent" family life for the boy for the foreseeable future.

During the few months before trial, appellant did add structure to her life. She is working steadily and living with her mother in Fort Worth. Her other children are with her. She sought counseling and medication for her depression, but the record clearly indicates that appellant's mother is supplying the bulk of the stability and structure.

The McLins offer a more "traditional" family unit having been married for sixteen years at the time of trial. Otis McLin is a community college professor; his class schedule is flexible so that he is able to spend time with the boy during the day. Deanna McLin is a school teacher. The McLins are in their forties and are dedicating much of their energy and attention to the boy. Deanna McLin did testify, however, that two of the children she has raised have had trouble with the law.

Finally, the child has been with the McLins since December 1977, when he was six months old. He has grown up knowing only them as his parents.

Applying the relevant Holley criteria to the facts of this case, it would appear that appellant acted as a poor mother while she had the boy. She has been away from him The McLins, on the other hand, have provided a stable home for over four years and have demonstrated the desire to do so in the future. We conclude that the best interest of the child is served by not...