In the Interest of J.M.T.

39 S.W.3d 234, 1999 Tex. App. LEXIS 8955
Court of Appeals of Texas·Decided December 1, 1999·No. No. 10-99-276-CV·Published·Cited by 51 cases

Opinion

OPINION

GRAY, Justice.

A father’s parental rights were terminated. In a bench trial the court determined he had failed to support the child in accordance with his abilities and also found that termination was in the best interest of [237]*237the child. We are called upon to decide whether the evidence supported the termination and whether the trial court erred in not entering a judgment for the arrearage that resulted in the termination. Although the trial was very short, we hold that the trial court’s findings are based upon clear and convincing evidence and accordingly we affirm the judgment.

BACKGROUND FACTS

Sonja Word and Robert Thomas were divorced. They were named joint managing conservators of their child, J.M.T. Thomas was ordered to pay child support. Thomas paid child support for about two years. However, from March 1996 until February 1998, no child support was paid.

In February of 1998, Word filed a pleading entitled “Original Petition to Terminate Parent-Child Relationship; Alternatively, For Enforcement of Child Support Order.” A guardian ad litem was appointed to represent the interest of the child. After a relatively short proceeding, lasting approximately two hours, the trial court terminated the parental rights of Thomas. Thomas’s motion for new trial was denied and he perfected this appeal.

ISSUES ON APPEAL

Thomas challenges the termination of his parental rights claiming that there was no evidence, or alternatively, insufficient evidence to support the findings that he failed to support the child in accordance with his ability and that termination was in the best interest of the child. The burden of proof and the standard of review are the same for each of these findings. Thus, we will discuss the burden of proof at trial and our standard of review and then apply the standard to the evidence presented at trial on each of the challenged findings.

Additionally, Word has filed a notice of appeal and by one issue complains that the trial court erred when it did not reduce the child support arrearage to judgment.

THE TWO PRONG TEST FOR TERMINATION OF PARENTAL RIGHTS

The natural right existing between a parent and child is of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). The right to raise one’s child has been characterized by the United States Supreme Court as essential, as a basic civil right, and as a right far more precious than property rights. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (1972). A termination decree is complete, final, irrevocable, and divests for all time that natural right as well as all legal rights, privileges, duties, and powers with respect to each other except for the child’s right to inherit. Holick, 685 S.W.2d at 20. Termination is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by “clear and convincing evidence.” Spangler v. Texas Dept. of Protective and Regulatory Services, 962 S.W.2d 253, 256 (Tex.App.—Waco 1998, no pet.). Thomas does not challenge any aspect of these proceedings on constitutional bases. His complaint is that there is no evidence, or alternatively insufficient evidence, of the elements required for termination under the applicable statute.

In proceedings to terminate the parent-child relationship brought under Section 161.001 of the Family Code, the petitioner must establish two elements. First, petitioner must prove one or more acts or omissions enumerated under the first subsection of the statute. Second, petitioner must prove that termination of the parent-child relationship is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon 1995 & Supp. 1998); Richardson v. Green, 677 S.W.2d 497, 499 (Tex.1984). The fact finder must find both elements are established by clear and convincing evidence, and proof of one element does not reheve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); [238]*238Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex.1976).

BURDEN OF PROOF: CLEAR AND CONVINCING EVIDENCE

Termination of parental rights requires the petitioner to justify termination by clear and convincing evidence of each element. In re G.M., 596 S.W.2d 846, 847 (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.” Spangler, 962 S.W.2d at 256.

LEGAL SUFFICIENCY: STANDARD OF REVIEW ON APPEAL

We use the traditional “no-evidence” standard of review in reviewing a legal sufficiency complaint of a finding which must be established by clear and convincing evidence. We consider only the evidence which tends to support the fact finder’s findings and disregard all evidence and inferences to the contrary. Lucas v. Texas Dep’t of Protective and Regulatory Services, 949 S.W.2d 500, 502 (Tex.App.—Waco 1997, writ denied). An appellate court will review a “no-evidence” or legal sufficiency complaint by considering only the evidence and inferences tending to support the finding to determine if there is more than a scintilla of probative evidence in the record to support the decision. In the Interest of D.L.N., 958 S.W.2d 934, 936 (Tex.App.—Waco 1997, pet. denied, pet rehear’g denied); See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996); Lucas, 949 S.W.2d at 502. If there is any evidence in the record to support the finding of the trial court, we will overrule the appellant’s legal sufficiency complaint. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951).

FACTUAL SUFFICIENCY: STANDARD OF REVIEW ON APPEAL

“When the trier of fact is required to make a finding by clear and convincing evidence, the court of appeals will only sustain an issue alleging factually insufficient evidence if the trier of fact could not reasonably find the existence of the fact to be established by clear and convincing evidence. Spangler, 962 S.W.2d at 257.

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In the Interest of J.M.T., 39 S.W.3d 234, 1999 Tex. App. LEXIS 8955 (Tex. Ct. App. 1999).

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