Sharon Fabian Matthies v. Joe Tom Hancock, et ux--Appeal from 87th District Court of Freestone County

AFFIRMED 2 AUGUST 1990

NO. 10-89-204-CV

Trial Court

# 87-417-B

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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SHARON FABIAN MATTHIES,

Appellant

v.

JOE TOM HANCOCK, ET UX,

Appellees

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From 87th Judicial District Court

Freestone County, Texas

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O P I N I O N

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This is an appeal by petitioner Sharon Matthies from denial of relief in her bill of review to set aside judgment terminating her parental rights and granting adoption by respondents Hancock of her two children, Holly, born February 24, 1977, and Michael, born April 6, 1981.

Sharon Matthies and her two children moved to Fairfield in 1983. She contacted April Hancock with whom she had gone to college. April helped Sharon financially and helped her obtain jobs. In December 1985 Ms. Matthies went to the hospital for treatment of a staff infection and placed the children with the Hancocks. In January 1986 Ms. Matthies advised the Hancocks that she was going to Brownwood and would send for the children in a couple of months. The Hancocks agreed to keep the children. In January 1986 the Hancocks were appointed temporary managing conservators of the children by agreement and Ms. Matthies was ordered to pay $100 per month in child support. Ms. Matthies left on January 6, 1986, and except for one two-hour visit, did not see the children again until April 14, 1989. Ms. Matthies wrote a few letters but never paid any child support. In February 1987 Matthies was arrested for forgery in Brown County and sentenced to three years and then sent to Taylor County where an earlier eight-year felony probation was revoked. Upon learning of the above, the Hancocks filed a petition for termination of parental rights and for adoption of the children on March 9, 1987. Ms. Matthies filed a pro se answer opposing the termination of her parental rights asserting she was indigent, incarcerated in Brown County Jail, and requested an appointed attorney and a bench warrant. On July 29, 1987, trial was held without Ms. Matthies presence and a judgment was rendered terminating her parental rights and granting adoption. Upon receiving the notice of the judgment, Ms. Matthies sent a pro se notice to the Freestone County District Clerk that she was indigent, wanted to appeal and requested a transcript. After Ms. Matthies arrived at TDC she contacted Staff Counsel who filed her transcript for appeal but it was filed too late.

On November 24, 1987, Matthies filed her petition for bill of review. On March 11, 1988, hearing was had on the bill of review and on April 6, 1988, judgment was rendered denying the bill of review. On June 28, 1988, an agreed order granting new trial on the bill of review was entered. Hearing was again held on the bill of review on April 14, 1989, and on July 31, 1989, the trial court rendered judgment denying relief sought by the bill of review.

The judgment, as well as findings of fact and conclusions of law filed by the trial court, found:

(1)The court finds by clear and convincing evidence that the petitioner furnished no support to the children for a period of more than one year ending within six months of the date of filing of petition for termination.

(2)The court finds by clear and convincing evidence that petitioner had the ability most of this time to furnish some support but failed to do so by conduct which displayed an indifferent and irresponsible attitude toward petitioner's parental duties.

(3)The court finds by clear and convincing evidence that termination of petitioner's parental rights would be in the best interest of the children.

Petitioner (appellant) Matthies appeals on three points:

Point one asserts "the fact found by the court that supported the only statutory ground for termination is not legally sufficient to support termination of parental rights".

Point two asserts "if it is assumed, without admitting, that the fact found by the court was legally sufficient to support the statutory ground for termination of appellant's parental rights, the evidence is insufficient to support the court's finding that appellant `clearly had the ability during most of this time to furnish some support', or the court's finding is against the overwhelming weight of the evidence".

Points one and two complain of the court's findings one and two, supra. Section 15.02 of the Family Code provides:

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

(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.

(2) termination is in the best interest of the child.

The petition here was filed on March 9, 1987; thus the alleged failure of appellant to support the child in accordance with her ability involves a period of one year ending six months of March 19, 1987.

The evidence is that no support was ever paid by appellant at any time beginning December 1985 when she turned custody over to the Hancocks. Appellant only claimed to have paid $100 during this period and the evidence was disputed whether she paid same and the trial court was authorized to believe that she did not.

The children were placed with the Hancocks in December 1985. The Hancocks were appointed temporary managing conservators of the children in January 1986 at which time the court ordered appellant to pay $100 per month child support.

Appellant went to Brownwood in January 1986 and while in Brownwood had four or five different jobs. From February 14 until April 1, 1986, she worked at Care and received $1,121.75; and worked thereafter at Plantation and received $105. She lived some three months with an ex-husband (father of one of the children here) and did not work but never asked the ex-husband for any money to send to the children. From August 1 until December 7, 1986, she worked as a live-in receiving room and board and $27.50 per month. Additionally she received $50 and $38 to make a down payment on a car and pay the insurance on same. She earned $75 in January 1987. She did not try to sell her furniture or other belongings to get money to pay her child support. She was arrested in February 1987 and thereafter sent to TDC. It may have been difficult for appellant to make child support payment but she could have paid something.

All of the evidence taken together is enough to support a clear and convincing finding of failure to support in accordance with ability. Brazier v. Brazier, CCA (Beaumont) NWH, 597 S.W.2d 442; Belitz v. Seekatz, CCA (Waco) Er. Dism'd, 570 S.W.2d 218.

Points one and two are overruled

Point three asserts "there is insufficient evidence to support the trial court's finding that termination of appellant's parental rights was in the best interest of the children or the court's finding is against the overwhelming weight of the evidence".

We think the evidence overwhelming that termination and adoption are in the best interest of the children. Appellant gave up another child for adoption. She testified she could not hold a job; that she moved frequently; that she did not keep the children in school on a regular basis; that she placed the children in Pleasant Hills Children's Home in Fairfield because she could not properly care for them; she admitted to felony convictions for welfare fraud and forgery and to other arrests for "petty thefts". She left the children with the Hancocks in December 1985, made one two-hour visit to them in February 1986, and never visited them again until April 14, 1989. The children were doing poorly in school until the Hancocks spent many hours working with them. Appellant is on parole from TDC and is working and living in older persons' homes and is unable to care for the children at this time.

Among the factors to be considered in ascertaining the best interest of the child are: //

(1)The emotional and physical needs of the children now and in the future.

(2)The emotional and physical damages to the children now and in the future.

(3)The parental abilities of the persons seeking custody.

(4)The plans for the children by the persons seeking custody.

(5)The acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and

(6)Any excuse for the acts or omissions of the parent.

Appellant did not and apparently cannot provide a stable motivated environment for the children. The Hancocks are definitely capable of and are providing such an environment for the children. Appellant has no parenting skills; the Hancocks have two children of their own about the ages of the children here, and have demonstrated ample parenting skills with all four children. Appellant at this time has no house or home for the children. The Hancocks will continue to provide the home they have provided since 1985. Appellant has been convicted of two felonies, served time in TDC and is at this time on parole. While appellant has excuses for her conduct, we think such are not viable.

The children have been with the Hancocks since 1985; escaped from a hopeless environment with appellant and have been given a family and a chance in life. It would be emotionally and physically devastating to shatter this new life.

There is sufficient evidence to support the trial court's finding that termination of appellant's parental rights are in the best interest of the children and such finding is not against the overwhelming weight of the evidence.

Point three is overruled.

AFFIRMED

FRANK G. McDONALD

DO NOT PUBLISHChief Justice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means and Chief Justice Frank G. McDonald (Retired)]