NO. 07-01-0336-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 16, 2002
______________________________
IN THE INTEREST OF B.L.W. and R.S.W.
_________________________________
FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
NO. 20,312; HON. TOM NEELY, PRESIDING
_______________________________
Before BOYD, C.J., QUINN and REAVIS, J.J.
Appellant Daryla Jo Woolf Piper (Daryla) appeals from a final order terminating the
parental relationship between her and her biological children, BLW and RSW. The five
issues presented to us involved the sufficiency of the evidence underlying the decision to
terminate. We overrule each and affirm the judgment.
Background
Ricky Allan Woolf (Ricky) and Daryla were married on or about September 14,
1990. Two children, BLW and RSW, were born of the marriage. Subsequently, Ricky
petitioned for a divorce from Daryla on August 16, 1993. The divorce was granted.
Furthermore, the trial court designated Ricky the managing conservator of the two children
and Daryla, the possessory conservator.
Later, upon motion filed by Ricky, the court ordered that Daryla pay Ricky child
support of $239.36 per month. The order was signed on April 10, 1997. Daryla did not
make the payments as ordered. Indeed, the only sum she paid between the date of the
order and the time the court convened trial upon the motion to terminate (i.e. July 6, 2001)
was $8.32.
Ricky thereafter filed his petition to terminate the parent child relationship between
Daryla and the children on June 2, 2000. He alleged that she had
(a) voluntarily left the children alone or in the possession of another without
providing adequate support for the children and remained away for a period
of at least six (6) months; and (b) failed to support the children in accordance
with her ability during a period of one (1) year ending within six (6) months
of the date of the filing of [the termination] petition.
Upon convening a trial and receiving evidence from Ricky, Karen Woolf (Ricky’s wife of
four years) and Daryla, the trial court found, by “clear and convincing evidence,” that 1)
Daryla had “failed to support the children in accordance with her ability during a period of
one year ending within six months of the date of the filing of the petition” and 2) the best
interests of the children supported termination of the parent child relationship between
Daryla, BLW and RSW. It then ordered that the relationship be terminated. It is from that
order which Daryla now appeals.
Standards of Review
The applicable standard of review is discussed in In re M.D.S., 1 S.W.3d 190 (Tex.
App.--Amarillo 1999, no pet.) and In re R.D.S., 902 S.W. 2d 714 (Tex. App. --Amarillo
1995, no writ). We refer the litigants to same.
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Next, a trial court may terminate the parent child relationship for various statutory
reasons. Those relied upon here involved the parent’s failure to support the child in
accordance with the parent’s ability during a period of one year ending within six months
from the date of the filing of the petition and the best interests of the child. TEX . FAM . CODE
ANN . §161.001(1)(F) & (2) (Vernon Supp. 2002).
Issues One and Two – Failure to Support Children
Through issues one and two, Daryla claims that the evidence was both legally and
factually insufficient to support the findings that she 1) failed to support the children for one
year ending within six months of the date the petition was filed and 2) had the ability to
support the children. We disagree and overrule the issues.
Of record is evidence that: 1) Daryla was ordered to pay a monthly child support
payment of $239.30 beginning April 15, 1997; 2) the only support payment she paid since
April 1997 was $8.32; 3) Daryla admitted that she had not financially supported the
children from January 5, 1998 through July 6, 2001; 4) Daryla stated she had worked at
times and was capable of working but chose to quit her various jobs and not pursue further
employment; 5) Daryla understood her legal obligation to support the children and had no
excuse for not doing so; 6) Daryla admitted that she “ha[d] not given any support of the
children during the period of one year ending within six months from the date of the filing
of this [termination] petition”; 7) Ricky stated that Daryla had not provided the children with
any support for one year ending within six months of the date he initiated suit to terminate
the parent child relationship; and, 8) counsel for Daryla represented to the trial court that
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the petition to terminate the relationship was filed on June 2, 2002.1 The preceding
constitutes legally sufficient evidence upon which a trial court could hold that Daryla
clearly and convincingly failed to support her children as contemplated by §161.001(1)(F)
of the Texas Family Code. And, when the record is considered in its entirety, we cannot
but find that the determination also enjoys the support of factually sufficient evidence.
Issues Three, Four and Five – Best Interests of the Children
Through her remaining issues, Daryla claims that the evidence was legally and
factually insufficient to support the finding that the best interests of each child would be
furthered by termination of the parental relationship. We disagree and overrule the
issues.2
Of record is evidence that: 1) Daryla had no contact (be it by mail, phone or
personal appearance) with either child between April 1997 and July 2001 (the time of trial);
2) Daryla had not mailed the children cards during that time period nor provided them with
any gifts; 3) save for $8.32, Daryla had not provided financial support for her children
during that period despite her ability to work and her recognition of her duty to support; 4)
1
While unsworn testimony of counsel usually constitutes no evidence, it may if no one objects to the
factual representations. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). Here, no one objected to the
factual representations of counsel for Daryla regarding the date on which the petition was filed. Thus, it is
some evidence of the date on which the petition to terminate was filed.
2
For the most part, Daryla’s contentions are founded upon the opinion in Holley v. Adams, 544
S.W.2d 367 (Tex. 1976). There, the court listed a number of indicia which “have been or would appear to
be pertinent” in assessing the best interests of the child. Id. at 371-72. Furthermore, Daryla suggests that
the findings at bar are deficient because Ricky failed to present evidence developing each factor. However,
nowhere does the court in Holley say that each indicia must be addressed before the trial court can make
a legitimate determination regarding best interests. Nor does it hold that the indicia mentioned are exclusive.
Indeed, quite the opposite is true given the court’s statement that “[t]his listing is by no means exhaustive.”
Id. at 372. In other words, the factors mentioned in Holley are simply examples of things worthy of
consideration; they are by no means the only ones to consider. Nor must each be considered as long as the
factors actually developed support the decision that termination is in the best interest of the child.
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Daryla explained her failure to retain employment by simply stating that she made “bad
choices in life”; 5) Daryla conceded that the children’s step-mother (Karen) had “taken
good care of [the] kids”; 6 ) the children developed a mother / daughter and mother / son
relationship with Karen, are “real close” to her, and treat her as their mother; 7) Karen
wishes to adopt the children and had been their mother figure for the last four years; 8) the
children do not know their biological mother or what she looks like; 9) BLW does not want
to see Daryla while RSW may; and, 10) both Ricky and Karen believe termination of the
parent child relationship was in the best interests of the children.3 Combined, this
evidence provides ample basis upon which a trial court could have found, clearly and
convincingly, that termination of the parent child relationship was in the best interests of
the children, BLW and RSW.4 See Fite v. Nelson, 869 S.W.2d 603, 607-608 (Tex.
App.–Houston [14th] 1994, no pet.) (holding that the best interests of the child supported
termination where the father rarely visited his son, failed to write or call the boy, gave him
no Christmas gifts or cards for five years, never contacted the boy’s teachers or doctors,
3
Daryla did state that she loved the children and had attempted to see them once after Ricky initiated
the termination proceedings. Karen disputed the allegation that Daryla had even attempted to see them
once. Furthermore, the trial court could well have concluded that a profession of love is hollow when made
by one who did not attempt (even on holidays and birthdays) to interact with the children, offered no
substantive explanation for her failure to contact them or act like a caring mother, offered them neither
physical, emotional nor financial support, allowed another to act as her substitute, deigned to contact them
only once and only after termination proceedings began, and who is all but unknown to the children she
supposedly loves.
4
We reject Daryla’s suggestion that the trial court must enter separate findings regarding the best
interests of the child with regard to each child before its decision can be deemed legitimate. It is true that
the trial court must find that termination is in the best interests of the child. Yet, when there are multiple
children involved and the acts and indicia warranting termination are the same as to each child (as they are
here), we see nothing wrong in the court wording its order so as to find that the “best interests of the children”
support termination.
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the boy feared being taken away, and the boy’s grandparents provided the boy a home,
education, and religious foundation).
In short, Ricky presented evidence touching upon many of the factors itemized in
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) and justifying termination of the parent child
relationship. Those factors included the desires of the child, the parental ability of the
mother, the stability of the home, the relationship between mother and child, the
relationship between the children and those meeting their current physical, emotional, and
financial needs, the emotional stability of the children, the acts or omission of the parent
made subject of the suit and any excuses for that parent undertaking those acts and
omissions. While not each of the criteria alluded to in Holley may have been addressed,
nonetheless, enough evidence was presented to illustrate why termination was in the best
interests of each child, and trial court’s decision to that effect finds both legally and
factually sufficient evidentiary support.
Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Justice
Do not publish.
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