Stuart v. Tarrant County Child Welfare Unit

• Decision Date: 27 September 1984
• Docket Number: No. 2-84-102-CV,2-84-102-CV
• Citation: 677 S.W.2d 273
• Parties: Susan Marie STUART and Lloyd Leroy Stuart, Appellants, v. TARRANT COUNTY CHILD WELFARE UNIT, Texas Department of Human Resources, Appellees.
• Court: Texas Court of Appeals

Page 273

677 S.W.2d 273

Susan Marie STUART and Lloyd Leroy Stuart, Appellants, v. TARRANT COUNTY CHILD WELFARE UNIT, Texas Department of Human Resources, Appellees.

No. 2-84-102-CV.

Court of Appeals of Texas Fort Worth.

Sept. 27, 1984.

Alley & Alley and Richard Alley, Fort Worth, for appellants.

David L. Richards, Asst. Dist. Atty., Fort Worth, for appellees.

Before FENDER, C.J., and ASHWORTH and BURDOCK, JJ.

OPINION

FENDER, Chief Justice.

The Texas Department of Human Resources [hereinafter TDHR] instituted this action against Lloyd and Susan Stuart under TEX.FAM.CODE ANN. Sec. 15.02 (Vernon Supp.1984) in order to terminate their parental rights with regard to their natural son, Jeremy Duane Stuart. Violet and Freeman Gunter, the grandparents of the children and parents of Susan Stuart, intervened in the suit in order to petition the court for custody of the child in the event that the Stuarts' parental rights were terminated. Trial was to the court, which found that Lloyd and Susan Stuart had (1) been the major cause of Jeremy's failure to attend school as required by the Texas Education Code, TEX.EDUC.CODE ANN. Sec. 1.01 et seq. (Vernon 1972 and Supp.1984); (2) knowingly placed and knowingly allowed Jeremy to remain in conditions and surroundings which endangered his physical and emotional well being, and (3) engaged in conduct and knowingly placed Jeremy with persons who engaged in conduct which endangered his physical and emotional well being. The trial court further found that (4) it was in Jeremy's best interest to terminate the parent-child relationship and appoint the Tarrant County Child Welfare Unit of the TDHR as managing conservator with authority to place Jeremy for adoption, and (5) it was not in Jeremy's best interest to place him in the custody of the Gunters. As a result of these findings, the court entered a decree of termination from which Lloyd and Susan Stuart appeal.

We affirm.

In points of error one through five, the Stuarts attack the sufficiency of the evidence to support the trial court's findings and judgment terminating the parent-child relationship and appointing the TDHR as managing conservator. Specifically, the Stuart's claim that there is no evidence, or alternatively insufficient evidence, to support the findings of the trial court stated above. Before we address the Stuarts' arguments, however, we must first set forth the proof requirements and the standard of review for parental rights termination cases.

Section 15.02 TEX.FAM.CODE ANN. (Vernon Supp.1984) provides in pertinent part:

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, or ...

(J) been the major cause of:

(i) the failure of the child to be enrolled in school as required by the Texas Education Code....

and in addition the court further finds that:

(2) termination is in the best interest of the child. The statute makes clear that in order to have parental rights involuntarily terminated, the petitioner must establish one or more of the acts or omissions listed under subdivision (1), and must additionally prove, as required under subdivision (2), that termination is in the best interest of the child. In the Interest of S.K.S., 648 S.W.2d 402 (Tex.App.--San Antonio 1983, no writ). Both elements must be established and the requirements of subdivision (1) are not excused because the court is of the opinion that the subdivision (2) requirement has been proved. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976).

The standard of proof required in order to terminate the parent-child relationship is "clear and convincing evidence," In the Interest of G.M., 596 S.W.2d 846 (Tex.1980). This standard is defined as "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." In the Interest of G.M., supra. When the sufficiency of the evidence to support a termination is challenged, therefore, the appellate court must determine if there is "clear and convincing evidence" to support the required findings. See McAdoo v. Spurlock, 632 S.W.2d 224 (Tex.App.--Austin 1982, no writ).

In light of the above standards, we now turn to a consideration of the Stuart's first five points of error in which they attack the sufficiency of the evidence to support the findings and the judgment. The Stuarts first argue in all five points that there is no evidence, or alternatively insufficient evidence, to support the trial court's conclusion that they (1) knowingly placed and knowingly allowed Jeremy to remain in conditions and surroundings which endangered his physical and emotional well being, and (2) engaged in conduct and knowingly placed Jeremy with persons who engaged in conduct which endangered his physical and emotional well being. Thus, they claim, the trial court could not properly have relied on subdivision (1)(D) or (E) to establish the subdivision (1) requirement for termination under sec. 15.02.

It should be noted at this point that these sufficiency of the evidence challenges, as well as the other sufficiency of the evidence challenges contained in the first five points of error, are stated as "insufficient evidence" and "no evidence" points. As we have just discussed, however, we are bound to review the evidence using a "clear and convincing standard." In the Interest of G.M., supra. Therefore, we will uphold the trial court's findings challenged by the Stuarts only if those findings are supported by clear and convincing evidence. In order to make such a determination, we must briefly review the facts of this case.

The record in this case reveals that Lloyd Stuart is an auto mechanic and body work man by trade. For a number of years Mr. Stuart earned a living as an itinerant mechanic, moving his family weekly. Apparently six to nine months prior to the institution of this suit, however, Mr. Stuart began having eye trouble which prevented him from working as a mechanic. As a result he resorted to living with his wife and children in a camper truck, and driving the truck from town to town in order to sell tools at flea market sales. Since the filing of this action, however, Mr. Stuart's eyes have cleared and he is now employed at a stationary job.

Jeremy, the child who is the subject of this suit, is the only survivor of three children born to Lloyd and Susan Stuart. Jeremy's younger brother, Jamie, died at age ten months from what Mrs. Stuart described as "infant death syndrome." Jeremy's younger sister, Michelle, died at age three from severe burns sustained in a fire in the Stuart's camper, which was parked at "Trader's Village," a flea market located in Grand Prairie.

Much of the testimony at trial covered the events surrounding the death of Michelle Stuart. The morning after they arrived at the "Trader's Village" flea market, Lloyd and Susan Stuart left Michelle unattended in their camper while they took Jeremy out to help sell flea market goods. When the Stuarts left Michelle, she was sitting on a mattress located above a lighted gas stove. A few minutes later Jeremy returned to the camper to put away some money, and discovered a fire in the camper.

Apparently Michelle had climbed down onto the stove in an attempt to get from the mattress to the floor of the camper, and in the process caught her clothing in the stove's flame. Two paramedics were called to the scene, and they discovered that 90% of Michelle's body was covered with third degree burns. One of the paramedics also noticed a visible amount of dried blood in the child's mouth, a condition which could not have been caused by the fire. Both paramedics testified as to the visible lack of emotion on the part of Mr. and Mrs. Stuart, and one paramedic testified that Mrs. Stuart told him the child's name was "Perkins" and not Stuart.

In an effort to get Michelle to the hospital as quickly as possible, the paramedics called in a helicopter. While the paramedics were waiting for the helicopter to arrive, the Stuarts hastily began packing up their camper for a quick departure. When one of the other vendors at the flea market asked Mrs. Stuart if she wanted to ride with Michelle to the hospital, Mrs. Stuart responded "No, she won't be afraid. She can go by herself." The Stuarts then got in their camper and left the state with the intention of driving to Indiana to leave Jeremy with Mrs. Stuart's parents.

When Michelle arrived at the hospital, she was treated by a Dr. Ann Williams. Dr. Williams observed full thickness burns over the child's entire body, except under her armpits where the burns were only partial. Dr. Williams also noted that Michelle was in an extremely emaciated condition. Although Michelle was three and one-half years old, she weighed only seven and a half pounds, which is at the 50th weight percentile for a nine-months-old child and not even on the scale for a three year old. Further, Dr. Williams observed that the child's teeth had been loosened, and testified that neither the poor condition of the teeth nor the emaciation could have been caused by the fire.

As a result of the severity of her burns, Michelle died several hours after being admitted to the hospital. The Stuarts never went to the hospital to check on Michelle's condition, and they did not contact the hospital until two days later when Lloyd Stuart called under an assumed name to find out what had become of Michelle. After learning of the child's death, Mrs. Stuart called Grand Prairie Police Detective Harold...