In the Interest of E. S. M

550 S.W.2d 749, 1977 Tex. App. LEXIS 2910
CourtCourt of Appeals of Texas
DecidedApril 21, 1977
Docket16812
StatusPublished
Cited by26 cases

This text of 550 S.W.2d 749 (In the Interest of E. S. M) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of E. S. M, 550 S.W.2d 749, 1977 Tex. App. LEXIS 2910 (Tex. Ct. App. 1977).

Opinion

PEDEN, Justice.

Wendy Golden appeals from a decree terminating her parental rights in favor of the petitioners, Lydia and William Baxter. Appellant contends that later decrees entered in this case ineffectively attempted to correct judicial errors and that the termination was unsupported by any evidence or was contrary to the great weight of the evidence.

Mr. and Mrs. Baxter, the appel-lees, brought this suit to terminate the parental rights of the appellant and of Lawrence Hue McClain to E.S.M., the child in question, so they could adopt him. By the time of the hearing they had kept him at the mother’s request for more than two years. The trial judge announced his decision of termination of parental rights after a trial on the merits and appointed the appellees as managing conservators of the child. The written judgment subsequently entered, however, mistakenly decreed that “the parent-child relationship between Lawrence Hue McClain and Wendy Celeste Golden, a/k/a Angelina McClain be and is hereby terminated . . . .” It also failed to recite that the defendant-appellant had been cited and had appeared. The appellant asserts that these two errors made the judgment invalid. We hold that the omission of a recital that the defendant had been cited and had appeared did not constitute error. It is clear that she did appear and participate fully in the hearing. The appellees filed a motion to enter a judgment nunc pro tunc reciting that the parent-child relationship between Lawrence Hue McClain and the appellant as parents and E.S.M., the child, was terminated; the trial court granted this motion on May 17, 1976, and the appellant perfected this appeal from that date under Rule 306b, Texas Rules of Civil Procedure. That purported nunc pro tunc decree was defective, however, because it contained no indication that it was being entered nunc pro tunc or that *752 the first judgment was being vacated, reformed, corrected, or amended. See City of West Lake Hills v. State ex rel City of Austin, 466 S.W.2d 722 at p. 726 (Tex.1971). A third decree has been signed while this case was on appeal; it contains recitals that the previous two judgments are vacated, and it corrects the errors noted in the first one. We base our review of this case on the third decree.

The appellant contests the validity of the original termination decree and the subsequent decrees in her first and second points of error. She also complains that the judgment was based on unverified pleadings, citing Tex.Pam.Code § 11.08(b). We hold that she waived this defect by not pointing it out by special exception or by filing a plea in abatement. Hays v. Old, 385 S.W.2d 464, 465 (Tex.Civ.App.1964, writ ref. n. r. e.); Rule 90, T.R.C.P.

Appellant argues that the mistakes in the original judgment constituted judicial errors, so they could not be corrected by a nunc pro tunc judgment entered more than 30 days after the entry of the original judgment.

A judicial error is one made in the rendition of the judgment, whereby an improper judgment is rendered; a clerical error occurs where the minutes of the court do not correctly recite the judgment actually rendered. A clerical error may be corrected at a subsequent term of court. Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819 (1936); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912). When the rendition of judgment is valid, the court has the power to correct any mistake or omission in the record of the judgment by entering a judgment nunc pro tunc. Rules 316 and 317, T.R.C.P.; Reavley & Orr, Trial Court’s Power To Amend Its Judgments, 25 Baylor L.Rev. 191, 194 (1973).

In our case the trial judge rendered judgment at the close of. the termination hearing when he said: “The parent-child relationship is terminated. The Petitioners are appointed managing conservators of the child.” The failure of the original decree to correctly recite this was simply a clerical error made in the entry of the decree on the minutes of the court. It is clear that the parent-child relationship was terminated by the court’s oral rendition at the end of the trial. We overrule the appellant’s first two points of error.

In her third and fourth points the appellant complains that the trial court erred in terminating her parent-child relationship with E.S.M. because there is no evidence and insufficient evidence to sustain the trial court’s findings in support of the order. These points are multifarious, but we will consider them. In deciding no evidence points, we view the evidence in a light most favorable to support the trial court’s findings. Fisher Constr. Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959). Great weight points require a consideration of all the evidence.

The trial court made findings (under the numbers shown) that the appellant and the child’s father had:

5. voluntarily left the child alone or in the possession of another, not the parent, without expressing an intent to return.
6. voluntarily left the child alone or in possession of another not the parent without expressing an intent to return, without providing for adequate support of the child and remained away for a period of at least three months.
7. knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.
8. 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.
9. failed to support the child in accordance with their ability during a period of at least one year.
10.and that the termination would be in the best interest of the child.

*753 Findings 7, 8, and 10 correspond with provisions (1) D, E, and (2), respectively, of the involuntary termination statute of the Texas Family Code, § 15.02 (1974). We review all of the evidence pertaining to these findings.

The termination hearing began on July 31, 1975. The first witness was the appellant, Wendy Golden, age 24. She is also known as Wendy Doherty and Angelina McClain. She identified Lawrence Hue McClain as father of her child, E.S.M. She describes her relationship with McClain as a common law marriage but says she also had a previous common law marriage to Henry Golden and has never been divorced. She has lived alone for the past four months after having lived with one Thomas Cox. Before that she was in the county jail for three months on a charge of criminal trespassing in a store; the charge was burglary, but she pleaded guilty to the reduced charge of trespassing. She has also been in jail twice for prostitution, once for carrying a pistol, once for theft, once for possession of marijuana, and once for possession of narcotics paraphernalia.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

in the Interest of C.I.B., a Child
Court of Appeals of Texas, 2020
in the Interest of J.N.G. and C.Y.G.
Court of Appeals of Texas, 2018
in the Interest of S.M.R., S.L.R. and S.I.R.
Court of Appeals of Texas, 2018
in the Interest of J. M., a Minor Child
Court of Appeals of Texas, 2014
State v. Richard B. Smith
Court of Appeals of Texas, 2010
in the Interest of E.A.G
Court of Appeals of Texas, 2002
Matter of W.A.B.
979 S.W.2d 804 (Court of Appeals of Texas, 1998)
In the Interest of R.D.S.
902 S.W.2d 714 (Court of Appeals of Texas, 1995)
In the Interest of McAda
780 S.W.2d 307 (Court of Appeals of Texas, 1989)
In the Interest of P.S.
766 S.W.2d 833 (Court of Appeals of Texas, 1989)
Doria v. Texas Department of Human Resources
747 S.W.2d 953 (Court of Appeals of Texas, 1988)
Boyd v. Texas Department of Human Services
715 S.W.2d 711 (Court of Appeals of Texas, 1986)
Smith v. McLin
632 S.W.2d 390 (Court of Appeals of Texas, 1982)
Allred v. Harris County Child Welfare Unit
615 S.W.2d 803 (Court of Appeals of Texas, 1980)
Harris County Child Welfare Unit v. Caloudas
590 S.W.2d 596 (Court of Appeals of Texas, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
550 S.W.2d 749, 1977 Tex. App. LEXIS 2910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-e-s-m-texapp-1977.