John Arthur Rodda v. Jill C. Persichetti, et vir--Appeal from 247th District Court of Harris County

NO. 10-89-112-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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JOHN ARTHUR RODDA,

Appellant

v.

JILL C. PERSICHETTI,

Appellees

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From 247th Judicial District Court

Harris County, Texas

Trial Court #87-36571

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O P I N I O N

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Daniel Rodda was born to Jill Persichetti during her marriage to John Rodda. Jill's current husband, Luigi, petitioned for adoption of Daniel, but the court terminated John's parental rights and permitted Luigi to adopt Daniel. We must decide whether clear and convincing evidence supports the termination. We will affirm.

In a bench trial, the court found that: (1) Jill and John were divorced in 1981; (2) Daniel was born to Jill during her marriage to John; (3) Luigi is Daniel's biological father and is now married to Jill; (4) John has repeatedly exposed his genitals to young children; (5) John was expelled from a religious commune for fondling young children and exposing himself to them; (6) John was convicted of indecency with a child in 1982 and placed on probation, which was revoked for a similar event four months later; (7) John was convicted again in 1986 of indecency with a child and sentenced to ten years in prison, where he is currently incarcerated; (8) Luigi has supported Daniel since he was born; (9) Jill, Luigi, and Daniel have lived as a family unit since 1985; (10) Luigi and Daniel have a close and loving "father and son" relationship; (11) John has visited Daniel infrequently and never supported him; and (12) it would be humiliating and emotionally disturbing for Daniel to know that his legal father is a convicted sex offender. Based on these findings the court concluded that: (1) John had engaged in conduct that endangered the emotional well-being of Daniel; (2) John's imprisonment is the result of a voluntary, deliberate and conscious course of conduct which endangered Daniel's present and future emotional well-being; and (3) termination of the parent-child relationship between John and Daniel was in Daniel's best interest.

John alleges in three points of error that no evidence or insufficient evidence supports the court's finding that his conduct endangered Daniel's emotional well-being, that he failed to financially support the child in accordance with his ability, and that the termination was in Daniel's best interest. Although John admitted that he did not financially support Daniel, having never been ordered to do so, we overrule point number two because the court neither found that John had the ability to support Daniel nor based its judgment of termination on that ground under Section 15.02 of the Family Code. See Tex. Fam. Code Ann. 15.02(1)(F) (Vernon 1986).

Section 15.02 of the Family Code, as it applies to this case filed prior to the 1989 amendments, 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:

(E) engaged in conduct . . . which endangers the . . . emotional well-being of the child; . . . and in addition, the court further finds that

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

See id. at 15.02(1)(E), (2) (Vernon 1986).

Actions which permanently sever family ties between a parent and child can never be justified without the most solid and substantial reasons and should be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). A strong presumption exists that the best interest of a minor is usually served by keeping custody in the natural parents. Id. The natural right which exists between parents and their children is one of constitutional dimensions. Id. Clear and convincing evidence is necessary to justify an involuntary termination of the parent-child relationship. In the Interest of G. M., 596 S.W.2d 846, 847 (Tex. 1980). Clear and convincing evidence is 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. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).

That a parent is confined to the penitentiary does not, by and of itself, constitute conduct authorizing termination under the Family Code. In the Interest of Guillory, 618 S.W.2d 948, 950 (Tex. Civ. App.--Houston [1st Dist.] 1981, no writ). Nevertheless, a voluntary, deliberate, and conscious course of conduct can qualify as conduct which endangers the emotional well-being of the child. Id. The conduct need not necessarily be directed at the child nor must the child actually suffer injury. Id. at 951.

The evidence must be evaluated as though John is Daniel's natural father. Although the evidence supports the finding that Luigi, not John, is Daniel's biological father, the evidence is not clear and convincing on that point. John's persistent course of criminal conduct in exposing himself to minors with its attendant convictions, his general attitude toward Daniel by failing to support and visit him, and the prospect of his continued imprisonment offer clear and convincing evidence that he has engaged in conduct which endangered Daniel's emotional well-being. These same facts, coupled with Luigi's support of Daniel since his birth and his relationship with Daniel since marrying Jill, constitute clear and convincing evidence that the termination of John's parental rights was in Daniel's best interest. See Interest of G. M., 596 S.W.2d at 847; Guillory, 618 S.W.2d at 950-51.

We overrule points one and three and affirm the judgment of the trial court.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings

and Justice Vance

Affirmed

Opinion delivered and filed April 25, 1991

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