SAM D. JOHNSON, Justice.
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
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
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:
In its "Conclusions of Law" the trial court found that:
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
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 (Tex.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
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:
CONDUCT WHICH ENDANGERS EMOTIONAL WELL-BEING
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 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)]. 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
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.
FAILURE TO SUPPORT
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.
THE FACTOR OF EXCUSE
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,
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, 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.
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. An extended number of factors have been considered by the courts in ascertaining the best interest of the child. Included among these are the
ACTS OR OMISSIONS 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.
EXCUSE OF ACTS OR 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 of Heard 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.
EMOTIONAL NEEDS OF 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.
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.
"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: