N.S.M. v. Dallas County Child Welfare Unit

747 S.W.2d 814, 1987 Tex. App. LEXIS 9286, 1988 WL 33705
CourtCourt of Appeals of Texas
DecidedFebruary 10, 1987
DocketNo. 05-85-01411-CV
StatusPublished
Cited by1 cases

This text of 747 S.W.2d 814 (N.S.M. v. Dallas County Child Welfare Unit) 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
N.S.M. v. Dallas County Child Welfare Unit, 747 S.W.2d 814, 1987 Tex. App. LEXIS 9286, 1988 WL 33705 (Tex. Ct. App. 1987).

Opinion

HOWELL, Justice.

D.L.M. (Father) and N.S.M. (Mother) appeal from the trial court’s order terminating their parental rights with respect to their daughter (Child). We agree with the parents’ contention that the evidence adduced is factually insufficient to support termination. Therefore, we reverse the trial court’s judgment and remand the cause.

This case is burdened by a complicated procedural and factual history. Child was born in August 1980. Father and Mother separated in 1982, with Mother retaining custody of the child and Father visiting the child. Father became concerned that Child was suffering physical abuse, including being bitten. A complaint was made to child welfare personnel who failed to confirm the abuse charges. During 1983, Father began to suspect sexual abuse. On several occasions, he took the child to hospitals for examination, but the physicians found no physical evidence of abuse. Mother and Father were divorced in June 1984. Father was named managing conservator and [815]*815Mother was made possessory conservator. That month, an examining physician found tear spots in Child’s hymenal ring, indicative of at least some penetration. The tom spots were inconsistent with self-inflicted or accidental penetration. Child Welfare personnel interviewed the child on videotape. Child stated that during the prior week her maternal grandfather had placed his “pony” (penis) in her vagina and in her mouth. She also related that he had previously inserted his fingers in her vagina. She stated that Mother was present at the time of the incident.

Throughout the summer of 1984, accusations continued. The attomey-ad-litem filed a motion for new trial and petition to terminate the parental rights of both parents. In October 1984 the parents were made joint temporary managing conservators. In January 1985 the child again stated in a child welfare interview that the maternal grandfather had placed his finger in her vagina. Presented with this evidence, the trial court named appellee, the Dallas County Child Welfare Unit of the Texas Department of Human Resources, as temporary managing conservator and the child was placed in a foster home. A trial of the motion for conservatorship and termination was held in July 1985. Subsequently, the court rendered the decree of termination for both parents which is now before us.

The trial record is voluminous, including the testimony of the witnesses, depositions, case notes, medical records, psychological evaluations, diaries, and three videotaped interviews of the child herself. Regrettably, the abundance of evidence failed to illuminate a very murky factual situation. We appreciate the trial court’s efforts to grapple with this case, but we are unable to find that the decree of termination is adequately supported by the evidence.

Parental rights may only be terminated involuntarily if the court finds that the parent has engaged in conduct described in section 15.02(1) of the Family Code and also that termination of parental rights is in the best interest of the child. Termination is one of the most intrusive actions available to the State, completely and irrevocably severing the parent-child relationship. For this reason, due process demands that the State establish its case by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 768-69, 102 S.Ct. 1388, 1402-03, 71 L.Ed.2d 599 (1982); In re G.M., 596 S.W.2d 846, 847 (Tex.1980). Clear and convincing evidence has consistently been 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 re C.D., 664 S.W.2d 851, 852 (Tex.App.—Fort Worth, 1984, no writ); Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803, 805 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.).

The next proposition to be examined is the proper scope of this court’s review. The Beaumont court of appeals has emphasized that “district courts are vested with discretion in determining child custody cases, including situations which involve the removal of a minor from his or her parent’s custody” because “the trial court is in the best position to observe the demeanor and personalities of the witnesses and can feel the forces, powers, and influences that cannot be discerned by merely reading the record.” In re J.D.H., 661 S.W.2d 744, 746 (Tex.App.—Beaumont 1983, no writ). The Austin court has stated:

Once made the decision of the trial court will not be disturbed unless it appears from the record that there was an abuse of discretion. Normally, as a corollary to this rule of broad discretion, it would matter not what this Court might have done under the circumstances had we heard the evidence; we would only be permitted to determine whether such broad discretion had been abused.

Turner v. Lutz, 685 S.W.2d 356, 359 (Tex.App.—Austin 1984, no writ). See also In re R.L., 620 S.W.2d 249, 252-53 (Tex.Civ.App.—Amarillo 1981, no writ) (holding that although some probative evidence supported termination, such evidence was not [816]*816on balance clear and convincing). We apply the test set forth by this court in Neiswander v. Bailey, 645 S.W.2d 835, 836 (Tex.App.—Dallas 1982, no writ) (the task of the appellate court is to determine “whether the trier of fact could reasonably conclude that the existence of the fact is highly probable ”) (emphasis added). With this test in mind, we review the evidence to determine whether the trial court could reasonably have concluded that the facts underlying the termination were highly probable.

EVIDENCE CONCERNING THE MOTHER

The trial court found that Mother had engaged in conduct detrimental to Child’s physical and emotional well being. It found that Mother’s father had sexually abused the Child and that Mother had failed to move from the grandparent’s house, where Mother had been living after her separation, or to take any other steps to protect Child from the grandfather.

There is some evidence of probative force to support these conclusions. The physical examinations of Child in June 1984 establish a high probability that Child had been sexually abused. Dr. Paul Prescott of the Children’s Medical Center estimated that Child’s hymenal ring had been damaged some two to four weeks before the examination. During this period, Child was primarily in Mother’s care.

Dr. Billy Clifford Roland, a professor of psychology at East Texas State University interviewed Child on several occasions. He reported that Child related that she had been sexually abused by Mother and by the maternal grandfather. He further testified that he believed Child had actually been abused because she was able to relate her experiences in a sequential and coherent manner and because she displayed sexual knowledge far beyond that expected of a child her age.

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Bluebook (online)
747 S.W.2d 814, 1987 Tex. App. LEXIS 9286, 1988 WL 33705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nsm-v-dallas-county-child-welfare-unit-texapp-1987.