Marriage of Linan v. Linan

632 S.W.2d 155, 1982 Tex. App. LEXIS 4092

• Court: Court of Appeals of Texas
• Decided: February 25, 1982
• Docket: 1912
• Status: Published

Opinions

OPINION

NYE, Chief Justice.

This is an appeal from an order denying appellant’s Motion to Terminate His Parental Rights. Miguel Linan, Jr., the appellant herein, is the adoptive father of the child, Mary Yvonne Linan. Appellee, Elizabeth Linan, is the adoptive mother of the child. In 1978, appellant and appellee were granted a divorce in which the appellee wife was named Managing Conservator of the child and appellant was ordered to make child support payments. Appellant was in arrears on his child support payments when, on March 7, 1980, he filed his motion to Terminate Parental Rights. A hearing was had on this termination motion and on ap-pellee’s motion to hold appellant in contempt due to past-due child support payments. After a hearing before the court, the trial judge denied the motion for termination, found appellant to be in contempt, but reduced appellant’s child support payments by $10.00 a week. Appellant appeals only from the trial court’s denial of his Motion to Terminate His Parental Rights.

Appellant brings forth four points of error, all of which complain of the trial court’s denial of his Motion for Termination of Parental Rights. Points of error one and two allege that the trial court erred or abused its discretion in failing to grant the motion to terminate. The other two points of error are evidentiary points of no evidence or against the great weight and preponderance of the evidence concerning the trial court’s ruling. We will discuss all of these points together.

Tex.Fam.Code Ann. § 15.01 (Vernon 1975), provides that “a parent may file a petition requesting termination of the parent-child relationship with his child. The petition may be granted if the court finds that termination is in the best interest of the child.” (Emphasis added)

In reviewing appellant’s evidentiary points of error, we follow the established rules set forth in Garza v. Alviar, 395 S.W.2d 821 (Tex.1965), and in Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In the present case, the only evidence as to whether or not termination would be in the best interest of the child was given by the appellant himself. He stated that appellee would not allow him to visit with the child as the divorce decree provided. He contends that it would therefore be a “burden for her (the child) to see me just because she can’t go with me.” When asked why it would be in the best interest of the child to terminate his parental rights, appellant responded as follows: “Why? Because — I mean I didn’t — I mean I couldn’t see her. I mean if I — it would twist her mind.” He testified that, in his opinion, it would be in the child’s best interest to terminate his parental relationship because appellee spends more time with the child and that he was not able to see the child per the visitation rights. The remainder of appellant’s testimony centered on his financial ability and his health. Appellee’s refusal to allow appellant to see the child is not in itself justification for termination.

We find after a careful review of all of the evidence in this case that the trial court did not err in denying appellant’s Motion to Terminate His Parental Rights. See Saathoff v. Wilcox, 562 S.W.2d 18 (Tex.Civ.App.—San Antonio, 1978, no writ); Wiley v. Spratlan, 529 S.W.2d 616 (Tex.Civ.App.—Tyler, reversed on other grounds 543 S.W.2d 349 [Tex.1976]).

We have considered all of appellant’s points of error, and they are overruled. The judgment of the trial court is affirmed.