Smith v. Sims

• Decision Date: 13 December 1990
• Docket Number: No. A14-89-00925-CV,A14-89-00925-CV
• Parties: Archie SMITH, Appellant, v. Luella SIMS, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 247

801 S.W.2d 247

Archie SMITH, Appellant, v. Luella SIMS, Appellee.

No. A14-89-00925-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Dec. 13, 1990.

Steven R. Rosen, Houston, for appellant.

Charles M. Kinsey, Pearland, Edward E. Lindsay, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and JUNELL and MURPHY, JJ.

OPINION

JUNELL, Justice.

This is an appeal from an order terminating the parent-child relationship between appellant, Archie Smith, and his two natural children. The trial court granted the petition of appellee, Luella Sims, for termination and adoption. Appellant brings six points of error alleging: (1) insufficient evidence to support the trial court's finding that appellant knowingly engaged in a course of conduct which endangered the physical or emotional well-being of the children; (2) insufficient evidence to support the trial court's finding that appellant knowingly placed or allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children; (3) insufficient evidence to support the trial court's finding that appellant endangered the physical or emotional well-being of the children; (4) insufficient evidence to support the trial court's finding that termination was in the best interest of the children; (5) insufficient evidence to indicate that appellant constitutes a present or future danger to the children; and (6) the trial court's findings of facts are not in comprehensible form, preventing appellant from knowing which facts the trial court relied upon in making its decision. We affirm.

In May of 1985, appellant murdered his estranged wife and a man. He also wounded two others. Appellant then went to the home of Luella Sims, the mother of his wife. Appellant's children, ages five and two, were staying at the home with Mrs. Sims. Appellant held Mr. and Mrs. Sims and the children in the house at gun point for approximately three days. Ultimately, the Houston Police Department SWAT team rescued the hostages and apprehended the appellant. Appellant was convicted of murdering his wife and the other man. He is currently serving two life sentences in the Texas Department of Correction.

After the death of their mother, the children continued to reside with Mrs. Sims, their maternal grandmother. At all times after her daughter's death Mrs. Sims has cared for her grandchildren. On April 27, 1988, Mrs. Sims instituted an action to terminate appellant's parental rights under TEX.FAM.CODE ANN. § 15.02 and to legally adopt her grandchildren. After a bench trial, the court granted the application for termination of parental rights and adoption. Appellant appeals from that action.

TEX.FAM.CODE ANN. § 15.02(1) sets forth the grounds which can be used to terminate the parent-child relationship. In this case the court used the grounds found in 15.02(1)(D) and (E):

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:

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or (E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.

Further, 15.02(2) requires that the termination be in the best interest of the child. Thus, in order for a petition requesting termination to be granted, one or more of the grounds set forth in 15.02(1) must be proved and it must be proved that such termination would be in the best interest of the child. Texas law requires such proof to be by clear and convincing evidence. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). The Supreme Court of Texas has defined clear and convincing evidence as:

... that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction of the truth of the allegations sought to be established. This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings.

State v. Addington, 588 S.W.2d 569, 570 (Tex.1979).

In his first and third points of error, appellant complains there was insufficient evidence under TEX.FAM.CODE ANN. § 15.02(1)(E) to prove that he endangered the physical or emotional well-being of his children. In reviewing the sufficiency of the evidence to support a finding that must be supported by clear and convincing proof, we must view all the evidence and determine whether the trier of fact could have reasonably concluded from the evidence that the existence of the fact to be proved is highly probable. Wetzel v. Wetzel, 715 S.W.2d 387, 388 (Tex.App.--Dallas 1986, no writ).

Appellant first argues that in order to use 15.02(1)(E), appellee must show that he engaged in a "course of conduct" which endangered his children. He contends there is insufficient evidence to show a "course of conduct" in that appellee's evidence consisted of only the May 1985 incident.

We agree that it is necessary under 15.02(1)(E) to show that there was a course of conduct which endangered the physical or emotional well-being of the children before termination can occur. Texas Department of Human Services v. Boyd, 727 S.W.2d 531, 534 (Tex.1987). We do not agree, however, with appellant's contention that the evidence was insufficient in this case to show such a course of conduct. It is undisputed that appellant has been convicted of and is serving a life sentence for murdering his wife, the mother of his children. It has been held that the murder of the child's other parent constitutes conduct sufficient to warrant termination under 15.02(1)(E). In the Interest of S.K.S., 648 S.W.2d 402, 404 (Tex.Civ.App.--San Antonio 1983, no writ) (murdering child's mother constitutes conduct described in 15.02(1)(E)); In the Interest of B.J.B. and C.E.B., 546 S.W.2d 674, 677 (Tex.Civ.App.--Texarkana 1977, writ ref'd n.r.e) (fears and anxieties of children showed emotional damage due to father murdering mother). Further, the court in Boyd held that evidence of imprisonment can be used to show a course of conduct. Boyd, 727 S.W.2d at 534. While the murder and imprisonment are sufficient to terminate under 15.02(1)(E), it is clear from the record that appellant went further. After the murder appellant fled to the place where his children were and kept them and their maternal grandparents as hostages for three days. To say that this is not a "course of conduct" simply because it arose out of the same incident and occurred within a single three day period is an untenable position. The evidence that appellant murdered the mother of the children, was imprisoned for the murder, coupled with the evidence of his acts following the murder constitute a course of conduct more than sufficient to satisfy 15.02(1)(E).

Appellant further attacks the trial court's finding of termination under 15.02(1)(E) contending that since there was no medical evidence to show that his children's physical or emotional well-being was endangered the evidence was insufficient. In support of this argument appellant cites a case from this court, Hall v. Harris County Child Welfare Unit, 533 S.W.2d 121 (Tex.Civ.App.--Houston [14th Dist.] 1976, no writ). That case states that whenever a cause relies heavily on proof of medical facts, then the party with the burden of proof must come forward with medical testimony or records, or some evidence other than hearsay or the unsubstantiated opinion of witnesses not qualified as medical experts. Hall, 533 S.W.2d at 123. However, that case was recognized by the court to be very fact specific in that the grounds for termination were a lack of inadequate care by the parents which caused medically recognizable problems. The court went on to specifically say that the case relied heavily on medical facts. This case does not. Here, appellant, after murdering two people, voluntarily went to the place where he knew his two small children were staying. He went with a loaded weapon which he proceeded to exhibit in front of his children. He threatened Mr. and Mrs. Sims with this weapon in front of his children. This alone is sufficient to show that appellant endangered the physical and emotional well-being of his children. But beyond this, appellant, by remaining at the home and holding hostages, forced a confrontation with the Houston Police Department SWAT team, frightening his children and putting them in physical danger. Several witnesses, including Mrs. Sims, testified that since the incident the children have had problems such as nightmares, hallucinations, and feelings of aggression toward their father. The record reflects that neither child wishes to have any further contact with their biological father.

The trial court's finding that appellant engaged in conduct that endangered the physical or emotional well-being of the children was supported by sufficient evidence. Appellant's points of error one and three are overruled.

In his second point of error appellant contends there is insufficient evidence to prove that appellant knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being. Appellant argues that TEX.FAM.CODE ANN. § 15.02(1)(D) refers to the environment in which the children are placed and not the conduct of the parent. He contends that since the children were with appellee in a "loving and caring" environment his parental rights cannot be terminated under 15.02(1)(D). We find that appellant misconstrues the intent of 15.02(1)(D).

Unlike 15.02(1)(E), which addresses parental conduct, 15.02(1)(D) addresses the child's surroundings and environment. In re S.H.A., 728 S.W.2d 73, 84 (Tex.App.--Dallas 1987, no writ). However, both subsections...