Reed v. Wormley

554 S.W.2d 254, 1977 Tex. App. LEXIS 3198
CourtCourt of Appeals of Texas
DecidedJuly 14, 1977
DocketNo. 5028
StatusPublished
Cited by2 cases

This text of 554 S.W.2d 254 (Reed v. Wormley) 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
Reed v. Wormley, 554 S.W.2d 254, 1977 Tex. App. LEXIS 3198 (Tex. Ct. App. 1977).

Opinion

McCLOUD, Chief Justice.

Robert and Gertrude Wormley, who will sometimes be referred to as the Wormleys, sued Linda Reed and their son, Rodney, seeking termination of the parent-child relationship between Linda and Rodney, and their daughter. Linda Reed, the mother of the child, and Rodney Wormley, the father, were never married. Rodney filed a statement of paternity as authorized by Sections 13.01 and 13.02 of the Texas Family Code. The court rendered judgment, based on jury findings, terminating the parental rights of Linda and Rodney, and appointing Robert and Gertrude Wormley permanent managing conservators of the child. Only the mother, Linda Reed, has appealed. We affirm.

The jury found that Linda knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child; Linda failed to support the child in accordance with her ability dur- ■ ing a period of one year before January 22, 1976; it would be in the best interest of the child to terminate the parent-child relationship between Linda and the child; and, Robert and Gertrude Wormley should be appointed managing conservators of the child.

Robert and Gertrude Wormley filed their original petition on May 28, 1975. At that time, the child was approximately eight months old. On January 22, 1976, the father, Rodney Wormley, filed an answer to his parents’ petition and also a cross claim against Linda, alleging she failed to support the child in accordance with her ability during a period of one year ending within six months of the date he filed his cross claim. Robert and Gertrude Wormley at no time alleged failure to support as a reason for termination. They contend, however, the issue was tried by implied consent. Linda does not refute that contention and no issue has been raised regarding pleadings. Section 15.02 of the Texas Family Code provides in part:

“A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
(E) 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; or
(F) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; or
(K) . . . and in addition, the court further finds that
(2) termination is in the best interest of the child.”

The child was born on September 15, 1974. At that time, Linda was eighteen and Rodney twenty-one. They started dating in 1971 while attending high school. Rodney moved to Temple, Texas, where he attended college. Linda followed and they were living together in Temple when she [256]*256became pregnant. Rodney married Gail Knox August 14, 1975. He and Gail testified, however, that he and Linda continued their affair until shortly before trial. Their relationship was frequently tumultuous with much arguing and fighting.

The mother first contends there is no evidence she failed to support the child in accordance with her ability during a period of one year before January 22, 1976. She argues the Wormleys have failed to meet the test announced in Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976). We disagree. In considering a no evidence point, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the jury finding, and reject the evidence and inferences contrary to the finding. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

From October 1974, to April 1975, Linda received $86 per month from the State Welfare Department as Aid to Families with Dependent Children. During the twelve month period under consideration, Linda worked for four different employers. She worked about a month to a month and a half for each employer and received approximately $2.10 per hour. She also received some money from her grandfather and Rodney.

On June 11, 1975, the trial court entered a temporary order appointing the Travis County Child Welfare Unit temporary managing conservator of the child. An agreement was reached by the parties whereby the child was placed in possession of the Wormleys during the week and the mother had possession of the child on weekends. The mother was never ordered by the court to pay the Wormleys any money for support of the child during this time. There is also evidence that Linda offered, on one occasion after the case was filed, to give Gertrude Wormley some money for the child, and the offer was refused.

A highly controverted issue in this case is whether the mother or Gertrude Wormley had actual physical possession of the child following her birth. There is much evidence that the mother essentially left the child with Gertrude Wormley who cared for her except for short periods when the child was with the mother. Linda contends that Gertrude Wormley kept the child at times during the day while Linda worked or looked for a job, and the baby occasionally spent the night at the Wormleys. Gertrude Wormley testified that Linda did not provide food and clothing for the child. She stated that the mother had only “bought one or two items.” Robert Wormley testified that since the birth of the child, he knew of nothing that Linda had done financially for the child in the way of clothing, food, or medicine. This is some evidence to support the jury finding.

The mother also argues she was “excused” from providing support for the child after June 11, 1975, since the court did not order her to make any child support payments, and furthermore, she offered support which was refused. The evidence shows the child was properly cared for while in the Wormleys’ possession and there is no evidence they sought or wanted any financial help from Linda. We think Linda Reed’s duty to support her child after June 11, 1975, was excused, but the fact that the failure to support is excused is only “one of the factors to be considered in asserting the best interest of the child.” Holley v. Adams, 544 S.W.2d 367 (Tex.1976).

The mother also asserts the finding that she failed to support her child in accordance with her ability for a period of one year prior to January 22, 1976, is factually insufficient. When passing on a factually insufficient evidence point, we must, and do, consider all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Linda testified that she spent the “AFDC” money on clothes and food for the child. The father, Rodney, testified that she spent the “welfare check” on clothes and food for the child and an occasional item for herself. He said she offered him some of the money, but he told her the money was supposed to be used for the child.

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Bluebook (online)
554 S.W.2d 254, 1977 Tex. App. LEXIS 3198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reed-v-wormley-texapp-1977.