Ziegler v. Tarrant County Child Welfare Unit

• Decision Date: 29 November 1984
• Docket Number: No. 2-84-159-CV,2-84-159-CV
• Citation: 680 S.W.2d 674
• Parties: Diana ZIEGLER, Appellant, v. TARRANT COUNTY CHILD WELFARE UNIT, Texas Department of Human Resources, Appellee.
• Court: Texas Court of Appeals

Page 674

680 S.W.2d 674

Diana ZIEGLER, Appellant, v. TARRANT COUNTY CHILD WELFARE UNIT, Texas Department of Human Resources, Appellee.

No. 2-84-159-CV.

Court of Appeals of Texas Fort Worth.

Nov. 29, 1984.

Mark S. Cochran, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, for appellee.

Before JORDAN, BURDOCK and HILL, JJ.

OPINION

JORDAN, Justice.

The Child Welfare Unit of the Texas Department of Human Resources brought this action against the natural mother of five children to terminate her parental relationship with her children. The suit also sought to terminate the parental rights of three different fathers of the five children. The mother's rights were terminated under TEX.FAM. CODE ANN. sec. 15.02 (Vernon Supp.1984), the trial court finding that she knowingly placed or knowingly allowed the children to remain in conditions and surroundings which endangered their physical and emotional well-being and engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical and emotional well-being of the children. The court also found that termination would be in the best interest of the children. The court also terminated the parental rights of Larry Keith McKinney, father of three of Ziegler's children, and of Henry Clay Ziegler, father of Crystal Lynn Ziegler. The court further found in its judgment that the alleged father of Rex Allen Thompson was Ray Smith who had failed to establish any right or interest in or to the child, Rex Allen Thompson, and that the parent-child relationship between Ray Smith and Rex Allen Thompson does not exist in law or in fact.

Only the natural mother, Diana Lynn Ziegler, appeals from the decision terminating the parental rights.

We affirm.

There are general principles which apply to all parent-child termination proceedings. There is a strong presumption that the children's best interest is usually served by keeping them with their natural parents. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976). Once evidence is produced, however, to support a finding that that presumed fact does not exist, the case will proceed as if no presumption exists. In Interest of Guillory, 618 S.W.2d 948, 951 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ). In involuntary parent-child termination proceedings, the essential facts must be proved by "clear and convincing evidence." In Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980). The clear and convincing 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." State v. Addington, 588 S.W.2d 569, 570 (Tex.1979).

This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal cases.

Diana Lynn Ziegler raises fifteen points of error in her appeal. By her first six points of error, it is her position that there was no evidence, or in the alternative insufficient evidence, to support the trial court's findings that she knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children; or that she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; or that termination of the parent-child relationship between Ziegler and her children would be in the best interest of the children. These six points of error will be grouped and discussed together.

In determining a "no evidence" point, we may consider only the evidence and inferences which tend to support the finding of the jury and must disregard all evidence and inferences to the contrary. Stodghill v. Texas Emp. Ins. Ass'n, 582 S.W.2d 102, 103 (Tex.1979); In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If there is any evidence of probative force to support the trial court's finding, the point must be overruled and the finding upheld. In Re King's Estate, 244 S.W.2d at 661-62.

Where the challenge to a jury finding or a finding of the court is framed as an "insufficient evidence" point, we are to consider all the evidence in the case, both that in support of and that contrary to the finding, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If the appellate court so determines, the finding must be set aside and a new trial ordered. Id.

This action to terminate the natural mother's parental rights to her five children was brought under TEX.FAM. CODE ANN. sec. 15.02(1)(D), (E), and subsection 2 of sec. 15.02. Under 15.02(1)(D), the parental rights may be terminated if the court finds that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child. Section 15.02(1)(E) permits termination if the parent 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. Subsection 2 of sec. 15.02 requires that termination be in the best interest of the child. Both elements of subdivision 1 and subdivision 2 must be established before parental rights may be terminated. Termination may not be based on a finding of the best interest of the child alone. Finding of violation or infringement of some of the provisions of subdivision 1 is also required. Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); Wiley, 543 S.W.2d at 351.

Diana Lynn Ziegler, both in her original brief and in a reply brief, argues that the Child Welfare Unit has failed to meet its burden of proof as to her children: Rex Thompson; Keith McKinney; Jessica McKinney; and Crystal Lynn Ziegler. Ziegler claims that there was not clear and convincing evidence that she had either placed or allowed these four children to remain in conditions or surroundings which endangered their physical or emotional well-being. She also maintains that as to these four children the proof was insufficient to show she had engaged in conduct or knowingly placed these children with persons who engaged in conduct which endangered their physical or emotional well-being. Additionally, she contends that there was a complete lack of evidence, or insufficient evidence that it would be in the best interest of the four above-named children to terminate her parental rights.

We shall recite only enough facts to portray the surroundings and home environment of these five children for approximately one and half to two years prior to the time this case was tried in February of 1984. The record shows a young woman, in her late 20's, married twice, with five children ranging, at time of trial, in ages from three to eight, who had held nine or ten jobs in the year or year and a half preceding the trial, and who had had many residences during that time. The first husband, Lawrence McKinney, father of three of her children, beat her and their oldest boy, Kelly, and on one occasion McKinney allegedly held Kelly out of a window at their home. Diana Lynn, though she eventually divorced McKinney, lived with him for sometime after these instances of brutality to their son.

She next married Henry Clay Ziegler, who, the record shows on one occasion, placed Kelly in scalding bathtub water as punishment. Both of Kelly's feet, top and bottom, were badly burned. Ziegler was convicted of the offense of injury to a child for this offense and received a ten-year probated sentence. Diana continued to live with Ziegler even after he got out of jail for the offense of injury to a child and once lived with him in Illinois shortly before this trial. Moreover, she failed to obtain medical treatment for Kelly's badly burned feet for two full days after that incident.

Diana Ziegler was convicted of the offense of failure to report child abuse involving the burning of Kelly's feet in October of 1982. In October of 1983, Diana pled guilty to possession of amphetamines, a controlled substance.

The Child Welfare Unit eventually took possession of all five children in either late 1982 or early 1983. In addition to the scalding incident, there was evidence of severe bruises, of different ages, on Kelly's back, thigh, and chest, which suggested battered child syndrome to the doctor at John Peter Smith Hospital who examined Kelly. There was also evidence that at different times Diana Ziegler was associated with, and on occasion lived with, people who had criminal records for child abuse. She once lived with a woman, Barbara Pruitt, who had received a 20-year sentence for child abuse, and once permitted a man named Herman "Hawkeye" Rogers, who had previously molested a three-year-old child, to live in her home. "Hawkeye" beat her and at one point, imprisoned her in her own home. Some of these incidents occurred when all of her children lived with her, and before they were removed by the Child Welfare Department. On one occasion when Diana Lynn had an unsupervised visit with Kelly in her home after the children had been removed by the Child Welfare, Diana Lynn Ziegler spanked Kelly hard enough to leave bruises from one side to the other, from...