An extended number of factors are considered
by the courts in ascertaining the best interest of the child. HOLLEY v. ADAMS ,
544 S.W.2d 367, Tex.
1. A
father instituted an action for termination of the parent-child relationship
between his former wife and their son.
2. The
court held that there was no evidence that the mother had endangered the
emotional well being of her child. The court held that a review of the factors
presented in the record revealed only evidence that indicated that termination
was not in the best interest of the child and that the mother's failure to
support her child was excused.
3.
Factors to be considered:
a.
(A) the desires of the child;
b.
(B) the emotional and physical needs of the child now and in the
future;
c.
(C) the emotional and physical danger to the child now and in the
future;
d.
(D) the parental abilities of the individuals seeking custody;
e.
(E) the programs available to assist these individuals to promote the
best interest of the child;
f.
(F) the plans for the child by these individuals or by the agency seeking
custody;
g.
(G) the stability of the home or proposed placement;
h.
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
i.
(I) any excuse for the acts or omissions of the parent.
4. Termination
may not be based solely on the determination of best interest. There must also be an act or omission by the
parent as specified by §161.001(1).
--------------------------------------------------------------------------------
Holley v. Adams, 544 S.W.2d 367
Supreme Court of Texas
December 1, 1976
No. B-5880
Reporter: 544 S.W.2d 367
Prior History:
Prior History:
Core Terms
termination, best interests of the child, emotional, parent-child, trial court, well-being, endangered, omissions, custody, divorce, civil appeal, no evidence
Case Summary
Procedural Posture
Petitioner mother appealed a decision of the Texas Court of Appeals, Travis County (3rd District), which affirmed the trial court's order that granted respondent father's petition to terminate the parent-child relationship between the mother and her son pursuant to Tex. Fam. Code Ann. §15.02 (1973).
Overview
The father filed a lawsuit to terminate the parent-child relationship between the mother and the parties' son. The trial court ordered termination under Tex. Fam. Code Ann. §15.02 (1973) on grounds that the mother had failed to support the child, that her conduct endangered the emotional well-being of the child, and that termination of the parent-child relationship was in the best interest of the child. The lower appellate court affirmed and the mother sought further review. The court reversed and rendered judgment for the mother. The court held that there was no evidence that the mother had endangered the emotional well being of her child. The court held that a review of the factors presented in the record revealed only evidence that indicated that termination was not in the best interest of the child and that the mother's failure to support her child was excused.
Outcome
The court reversed the lower appellate court's order that affirmed the trial court's order terminating the parent-child relationship between the mother and the parties' son. The court held that there was no evidence that the mother endangered her child or that termination was in the child's best interest.
LexisNexis® Headnotes
Family Law > Parental Duties & Rights > Termination of Rights > General Overview
Family Law > Parental Duties & Rights > Termination of Rights > General Overview
Family Law > ... > Termination of Rights > Involuntary Termination > Best Interest of Child
HN2
Under Tex. Fam. Code Ann. §15.02 (1973), termination of a parent-child relationship may not be based solely upon what the trial court determines to be the best interest of the child. Shepardize - Narrow by this Headnote
Under Tex. Fam. Code Ann. §15.02 (1973), termination of a parent-child relationship may not be based solely upon what the trial court determines to be the best interest of the child. Shepardize - Narrow by this HeadnoteFamily Law > Parental Duties & Rights > Termination of Rights > General Overview
Family Law > ... > Termination of Rights > Involuntary Termination > General Overview
HN3 Involuntary termination of parental rights rests upon Tex. Fam. Code Ann. §15.02. Tex. Fam. Code Ann. §15.02(1) lists several acts or omissions, one or more of which must be proved in a termination case. Tex. Fam. Code Ann. §15.02(2) requires proof of a second element, that the termination is in the best interest of the child. Both elements must be established and the requirements of § 15.02(1) are not excused because a court may be of the opinion that § 15.02(2) has been proved. Shepardize - Narrow by this Headnote
Involuntary termination of parental rights rests upon Tex. Fam. Code Ann. §15.02. Tex. Fam. Code Ann. §15.02(1) lists several acts or omissions, one or more of which must be proved in a termination case. Tex. Fam. Code Ann. §15.02(2) requires proof of a second element, that the termination is in the best interest of the child. Both elements must be established and the requirements of § 15.02(1) are not excused because a court may be of the opinion that § 15.02(2) has been proved. Shepardize - Narrow by this HeadnoteCivil Procedure > ... > Standards of Review > Substantial Evidence > General Overview
HN4 With regard to disputes as to the sufficiency of the evidence, an appellate court, in reviewing the record, can only consider the evidence and the inferences tending to support the finding of the trial court and must disregard all evidence and inferences to the contrary. Shepardize - Narrow by this Headnote
With regard to disputes as to the sufficiency of the evidence, an appellate court, in reviewing the record, can only consider the evidence and the inferences tending to support the finding of the trial court and must disregard all evidence and inferences to the contrary. Shepardize - Narrow by this HeadnoteFamily Law > Adoption > Consent > General Overview
Family Law > Parental Duties & Rights > Termination of Rights > General Overview
HN5 The focus of a termination proceeding is twofold; first, on the acts or omissions of the parent and, second, upon the best interest of the child. Shepardize - Narrow by this Headnote
The focus of a termination proceeding is twofold; first, on the acts or omissions of the parent and, second, upon the best interest of the child. Shepardize - Narrow by this HeadnoteFamily Law > Parental Duties & Rights > Termination of Rights > General Overview
Family Law > ... > Termination of Rights > Involuntary Termination > Best Interest of Child
HN6 An extended number of factors are considered by the courts in ascertaining the best interest of the child. Included among these are the following: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent.
An extended number of factors are considered by the courts in ascertaining the best interest of the child. Included among these are the following: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent.
OPINION
David Adams instituted this suit for termination of the parent-child relationship between his former wife, Nanci Adams Holley, and their son. The trial court ordered termination under Section 15.02 of the Texas Family Code Annotated 1 on the grounds [368] that Nanci Holley had failed to support her child [Section 15.02(1)(E)], that her conduct endangered the emotional well-being of the child [Section 15.02(1)(D)], and that the termination of the parent-child relationship was in the best interest of the child [Section 15.02(2)]. The court of civil appeals affirmed. 532 S.W.2d 694. We reverse and render judgment denying termination of the parent-child relationship.
David and Nanci Holley were married in 1965. The only child of their marriage, David Christopher, was born the following year. The couple separated in 1968 and subsequently Nanci Holley filed a suit for divorce which was granted in 1969. During the pendency of the divorce action Nanci Holley voluntarily delivered the child to his father in Austin, Texas where he has remained at all times pertinent to this action.
Nanci Holley did not object to or contest the divorce decree awarding custody of the child to David Adams. The court decree did not require Nanci to pay child support. The court order did, however, designate David Adams as managing conservator and he has continuously retained custody and control of his son since Nanci Holley voluntarily delivered the child to him.
David married his present wife, Sharon, in 1970. The trial court found that David Christopher enjoyed a happy relationship with his father and stepmother. His health was good, he attended school regularly, made good grades, and engaged in athletic activities.
Shortly after the divorce Nanci Holley was arrested and jailed for a traffic offense. She was also committed to the Austin State Hospital by her mother during June and July of 1969 for treatment of mental illness which Nanci described as a depressive condition caused by the divorce. In August 1969 she left Austin, Texas where her husband and child resided. She traveled in the company of three men and made what the court of civil appeals termed a "rootless trek to the western states." By the end of that month she had settled in Seattle, Washington where she has remained.
Nanci Holley remarried in 1970 and one child, a daughter, was born of this second union. This marriage ended in divorce in 1973 and Nanci Holley has retained custody of her daughter. During 1973 Nanci declared bankruptcy and in March 1974 she married her present husband, Ricky Holley, who was a student at the University of Washington.
After leaving Austin in 1969 Nanci Holley returned there to visit her son, David Christopher, on three occasions between 1971 and 1974. With respect to her relationship with and support of her son, Nanci Holley testified to the following: she often contacted him through her mother by numerous letters and telephone calls; there exists a loving parent-child relationship between them; the termination of that relationship would not be in the best interest of the child; her three offers to pay her son's air fare to and from Seattle were refused; between 1970 and 1975 she sent a total of approximately $100 in cash to her son or to David and Sharon Adams for his use and benefit; she maintained a health insurance policy covering him; and she sent various gifts and toys to her son. The trial court found that at least one of her gift packages was returned to her unopened. As to Nanci's financial situation between 1970 and 1975, the trial court found that: (1) for two years following her remarriage in 1970 she was a housewife without outside employment; (2) in 1972 she obtained employment as a program adviser at the University of Washington, which position she has continued [369] to hold; (3) she earned a gross income in excess of $500 per month from this employment; (4) she declared voluntary bankruptcy in 1973; (5) her marriage to Ricky Holley has not resulted in any children; (6) Ricky Holley received Veterans Administration education benefits in excess of $300 per month and worked part-time; (7) his tuition averaged $125 per month; and (8) $117 per month was deducted from Nanci's salary to repay loans. Nanci testified that she had not received the child support payments her second husband was ordered to make.
David Adams instituted the instant suit for termination of the parent-child relationship between his former wife, Nanci Adams Holley, and their son, asserting as the only grounds therefor that Nanci Holley had "failed to support the child in accordance with her ability during a period of one year ending within six months of the date of filing of the petition, and she [had] emotionally and actually abandoned the child," and that termination "would be in the best interest of [the] child."
The court appointed a guardian ad litem to represent the child, David Christopher, and ordered the guardian ad litem to investigate the circumstances and submit a written report to the court. Such report was submitted and is part of the record before this court.
David testified that he brought this suit for termination because if he should die it would be better for his son to be raised by Sharon Adams rather than by Nanci Holley. In describing the relationship between Nanci and David Christopher, David Adams testified as follows:
"Q . . . do you feel that it's in the best interest of Christopher that he not ever see his natural mother again?"Q So -- All right. So don't you agree with me, sir, that a young man of this age should -- who -- who has known his mother and who has visited with her in -- and who has formed some affection for his mother should be allowed to continue seeing his mother?"A I do believe the child is happy the way he is. As far as -- Yes. He enjoys going over to see Nanci whenever she comes to town because he gets gifts and, you know, lots of love and care which, you know, he gets in the home too, but he gets it every day when he only gets it one -- once a year or whenever she comes to town.
1. ". . . [Nanci Adams Holley] has failed to support the child in accordance with her ability during a period of one year ending within six months of the date of filing of the petition, within the meaning of Article 15.02(1)(E) of the Texas Family Code";2. "By her conduct and virtual abandonment of the minor child, David Christopher Adams, for a period of six years, commencing some three to four months prior to her divorce from David E. Adams, Nanci Adams Holley has engaged in conduct which endangers the emotional well-being of the child within the meaning of Article 15.02(1)(E) of the Texas Family Code"; and
The trial court decree ordered termination of the parent-child relationship. Additionally, it appointed David Adams managing conservator of his son. The court of civil appeals affirmed, holding that there was sufficient evidence to sustain the trial [370] court's finding that Nanci Holley failed to support her son in keeping with her ability during a period of one year prior to the filing of this suit for termination [Section 15.02(1)(E)], and that termination of the parent-child relationship was in the best interest of the child. Having found evidence to support one of the provisions of Section 15.02(1) of the Family Code, namely, failure to support [Section 15.02(1)(E)], the court of civil appeals declined to consider the trial court's alternative finding that Nanci Holley had engaged in conduct which endangered the emotional well-being of her son [Section 15.02(1)(D)]. The only issue before this court is the correctness of the termination order. There is no challenge of the appointment of David Adams as managing conservator.
As this case involves the right of the child to the benefit of the home and environment which will probably best promote its interest and the right of the parent to surround the child with proper influences, Herrera v. Herrera, 409 S.W.2d 395 (Tex. 1966), Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894), and as Wiley v. Spratlan, 543 S.W.2d 349, 19 Tex.Sup.Ct.J. 385 (July 17, 1976), recognized the constitutional dimensions of these rights, this case must be strictly scrutinized.TERMINATION MAY NOT BE BASED SOLELY ON DETERMINATION OF BEST INTEREST UNDER SECTION 15.02
HN2
Under Section 15.02 termination of a parent-child relationship may not be based solely upon what the trial court determines to be the best interest of the child. In Wiley v. Spratlan, supra, this court wrote:
Under Section 15.02 termination of a parent-child relationship may not be based solely upon what the trial court determines to be the best interest of the child. In Wiley v. Spratlan, supra, this court wrote:"HN3
In affirming the trial court's decree terminating the parent-child relationship the court of civil appeals did not rely upon the trial court's finding that Nanci Holley's conduct endangered the emotional well-being of her child [Section 15.02(1)(D)]. Although it is not clear that Section 15.02(1)(D) was properly pleaded by the recitation in the petition that Nanci Holley "emotionally and actually abandoned the child," it does not appear to be an issue between the parties before the court and this court will, for the purposes of this case, treat it as properly pleaded.
Nanci Holley contends that there is no evidence to support the trial court's finding that her conduct endangered the emotional well-being of her child [Section 15.02(1)(D)]. HN4 With respect to this contention, this court in reviewing the record can only consider the evidence and the inferences tending to support the finding of the trial court and must disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965).
With respect to this contention, this court in reviewing the record can only consider the evidence and the inferences tending to support the finding of the trial court and must disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965).
We hold that there was no evidence to support the finding that Nanci Holley, by her conduct, endangered the emotional well-being of her child. The trial court's finding was apparently based in part upon the fact that she visited the child only three times during the five and one-half year period prior to the trial of this case. There was no evidence of any nature that the infrequency of the contacts endangered the child's emotional well-being in any way. Similarly, there was no evidence that Nanci's visits with her son endangered his emotional well-being in any way.
The trial court also may have based its conclusion that Nanci Holley endangered [371] the emotional well-being of her child upon the conduct previously recited that appeared to cast doubt on her competency as a parent: her arrest in 1969 for a traffic offense; her commitment to the Austin State Hospital by her mother for less than two months; her conduct while traveling to Seattle; her second divorce; and her voluntary declaration of bankruptcy. Again, however, there was no evidence of any nature that David Christopher's emotional well-being was endangered by this conduct in any way.
The foregoing is not to be understood as speaking to the quality of the testimony which might be required to establish that the emotional well-being of a child has been endangered. The instant record is merely devoid of any testimony or evidence of any nature which bears upon the bringing into danger or peril the emotional well-being of the child.
Both the trial court and the court of civil appeals found that Nanci failed to support her son within the meaning of Section 15.02(1)(E). There is an adequate basis in the record to sustain the finding of the courts below that Nanci Holley failed to support her child in accordance with her ability during a period of one year ending within six months of the date of the filing of this petition.
Nanci Holley contends, however, that Section 15.02(1)(E) is rendered inapplicable where a parent's duty of support has been excused, and that her duty of support was excused in the instant case.
An analogous contention was before this court in the context of determining whether the consent of a parent was a necessary prerequisite to the adoption of his child under Article 46a(6)(a), Texas Revised Civil Statutes Annotated, 2 Heard v. Bauman, 443 S.W.2d 715 (Tex. 1969). That statute provided that the consent of a parent to adoption of his child was not necessary where "such parent or parents shall not have contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability."
However the statutory scheme which was before this court in Heard v. Bauman, supra, is significantly different from Section 15.02 of the Texas Family Code and thus the case is not necessarily controlling. As noted in Wiley v. Spratlan, supra, HN5 the focus of the current termination proceeding is twofold; first, on the acts or omissions of the parent and, second, upon the best interest of the child. The emphasis of Article 46a(6)(a) was on whether the conduct of the parent justifies the waiver of the requirement that the parent consent to an adoption. This change demonstrates the intent of the Legislature to move from the concept that the parent cannot block the severance of the parent-child relationship through adoption when the parent has engaged in unexcused blameworthy conduct, to the idea that the parent cannot prevent termination (1) when there exist acts or omissions by the parent which may indicate that the existing parent-child relationship is not a proper one, and (2) when termination is indeed in the best interest of the child. The interpretation of Section 15.02 which will best fulfill the intent of the Legislature is that any "excuse" for the acts or omissions of the parent can be considered by the trial court only as one of the factors in determining the best interest of the child.
the focus of the current termination proceeding is twofold; first, on the acts or omissions of the parent and, second, upon the best interest of the child. The emphasis of Article 46a(6)(a) was on whether the conduct of the parent justifies the waiver of the requirement that the parent consent to an adoption. This change demonstrates the intent of the Legislature to move from the concept that the parent cannot block the severance of the parent-child relationship through adoption when the parent has engaged in unexcused blameworthy conduct, to the idea that the parent cannot prevent termination (1) when there exist acts or omissions by the parent which may indicate that the existing parent-child relationship is not a proper one, and (2) when termination is indeed in the best interest of the child. The interpretation of Section 15.02 which will best fulfill the intent of the Legislature is that any "excuse" for the acts or omissions of the parent can be considered by the trial court only as one of the factors in determining the best interest of the child.
Nanci Holley next argues that there is no evidence that termination of the parent-child relationship was in the best interest of David Christopher. HN6 An extended number of factors have been considered by the courts in ascertaining the best interest of the child. Included among these are the [372] following: (A) the desires of the child; 3 (B) the emotional and physical needs of the child now and in the future; 4 (C) the emotional and physical danger to the child now and in the future; 5 (D) the parental abilities of the individuals seeking custody; 6 (E) the programs available to assist these individuals to promote the best interest of the child; 7 (F) the plans for the child by these individuals or by the agency seeking custody; 8 (G) the stability of the home or proposed placement; 9 (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent.10 This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent. Only a limited number of factors listed above appear from the record to have been presented here.
An extended number of factors have been considered by the courts in ascertaining the best interest of the child. Included among these are the [372] following: (A) the desires of the child; 3 (B) the emotional and physical needs of the child now and in the future; 4 (C) the emotional and physical danger to the child now and in the future; 5 (D) the parental abilities of the individuals seeking custody; 6 (E) the programs available to assist these individuals to promote the best interest of the child; 7 (F) the plans for the child by these individuals or by the agency seeking custody; 8 (G) the stability of the home or proposed placement; 9 (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent.10 This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent. Only a limited number of factors listed above appear from the record to have been presented here.
OF THE PARENT: As stated earlier, the record does support the finding of the trial court and the court of civil appeals that Nanci failed to support her child in accordance with her ability and this failure to support is one of the factors that is to be considered in ascertaining the best interest of the child.
OMISSIONS: However, as previously noted, any excuse for this failure to support is to be considered under best interest. A comparison of the facts of this case to the circumstances ofHeard v. Bauman, supra, leads to the conclusion that the failure to support was excused. In the instant case David Adams testified that Nanci Holley voluntarily agreed to give him custody of the child during the course of the divorce proceedings in order to assure that the child would be provided adequate financial support. Nanci Holley was never ordered to make support payments. It was undisputed that the child had been properly cared for while in his father's custody and that David Adams and his wife never sought or wanted any financial support for the child from Nanci Holley. Therefore, Nanci Holley's duty to support her child was excused and the fact that the failure to support is excused is one of the factors to be considered in ascertaining the best interest of the child.
THE CHILD: With respect to the emotional needs of the child, the previously noted testimony of both Nanci Holley and David Adams indicates that there does exist an emotional relationship between the child and his mother, and also an emotional relationship between the child and his maternal grandmother, and that these relationships should continue. Furthermore, the evidence demonstrates that there is an emotional relationship between the child and his father and stepmother.
Only two reasons were given by David Adams for termination; first, that it was his desire to adopt his wife's child at the same time his wife adopted his child and, second, that he was fearful of what would happen if he should die and the child's mother should take him.
Particularly compelling is the direct testimony on the best interest of the child. [373] There is notestimony that the child's best interest would be served by termination of the child's relationship with his mother. The investigator's report gives no justification for termination and makes no suggestion that it would be in the child's best interest. On the other hand, the testimony of David Adams, the individual seeking termination here, clearly states that it would not be in the best interest of the child that he never see his mother again; that the best interest of the child would be served by continuing to see his mother.
A review of the factors presented in the record reveals only evidence that indicates that termination is not in the best interest of the child. There is no evidence that termination of the parent-child relationship is in the best interest of the child, David Christopher.
The judgments of the trial court and the court of civil appeals are reversed and judgment is hereby rendered denying termination of said parent-child relationship.