Jacquelyn Layne WILEY, Petitioner, v. Kelly SPRATLAN, Respondent, 543 S.W.2d 349

POPE, Justice. The courts below ordered the termination of the parent-child relationship between Mrs. Jacquelyn Wiley and her four-year-old daughter. Tex.Civ.App., 529 S.W.2d 616. We reverse the judgments of the courts below and render judgment denying the termination. Kelly Spratlan, as the Supervisor of Welfare of Smith County, instituted this termination suit against both the father and mother, but the father filed an affidavit of relinquishment and defaulted. Only Mrs. Wiley, the mother, has contested the suit for termination. The only basis for termination asserted by Spratlan for the Welfare Department is this part of

Section 15.02 of the Family Code: “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) 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; * * * and (2) termination is in the best interest of the child.” The trial court found that the mother failed to comply with

Section 15.02(1)(

E) during the period from July 17, 1973, to July 16, 1974, and that it was in the best interest of the child to terminate the parent-child relationship under

Section 15.-02(2). Both elements are essential to the judgment. The findings of fact and the evidence do not support the judgment of termination. In February of 1973 the Wileys were engaged in a divorce proceeding. On February 22, 1973, they delivered the temporary possession of their child to the Child Welfare Unit and the Unit then requested each parent to contribute $33.00 toward the support of the child while she lived in a foster home. According to the findings, Mrs.

Wiley became delinquent in the amount of $273.00 during the one-year period but during that same time she was able to earn a total of only $1050.00 plus an unknown amount of tips for an additional two weeks. The undisputed proof shows additionally that during January, February, and March of 1974 she obtained lodging in exchange for her services as a cleaning woman in an apartment complex. She borrowed sums of money from her sisters for sustenance and her parents brought her canned goods and clothing. She was able to keep a small savings account of $500.00. The trial court found as a fact that Mrs.

Wiley paid $33.00 in August, 1973, during the first month of the one-year period after her agreement with the Welfare Unit. She attempted to make a payment of $30.00 by money order in April of 1974 which was not received, and she paid $30.00 in May and $30.00 in July. It was during January, February, and March that she earned only her rent as a cleaning lady. The undisputed proof further showed that she sent Easter, Christmas, and birthday gifts, as well as some clothes to her baby. This proof of income and contributions is all of the evidence in support of the sole basis for termination, namely, Mrs.

Wiley “failed to support the child in accordance with her ability during a period of one year ending within six months of the date of the filing of the petition.” The required period of nonsupport commenced not sooner than some time after August 6, 1973, which defeats the one-year period mandated by the Family Code. This was the holding in our recent decision in Cawley v. Allums, 518 S.W.2d 790 (Tex.1975). In that case the question was whether a father had failed to support his child during a period of two years which was required before a child could be taken from a parent for adoption under

section 6(

a) of

article 46a, Tex.Rev.Civ.Stat.Ann. This is the provision interpreted in Cawley: . . or if such parent or parents shall have not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability, . We ruled that two years meant twenty-four months and not nineteen months, and the new Family Code has carried forward this

interpretation of the former law.

Section 15.02(1)(

E) of the Family Code provided for termination if: (1) the parent . (

E) 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. The new Family Code omits the words “contributed substantially” found in

Section 6(

a) of

Article 46a, and it reduced the time period of nonsupport from twenty-four months to one year. The substitution of the new phrase “in accordance with his ability” for the words “commensurate with his financial ability” does not support an

interpretation that the Legislature intended to change the rule which was announced in Cawley. The words “commensurate with” mean “in accordance with.” An extensive treatment of the Family Code is found in the

article by Eugene L. Smith, Termination of the Parent-Child Relationship, 5 Tex.Tech.L.Rev. 437 (1974). The

article is one of several submitted by the scholars who drafted the code. Professor Smith writes at p. 440: “Phrase (

E) is derived from Tex.Rev.Civ.Stat.Ann. art. 46a, Sec. 6, which authorized dispensation with a parent’s consent to adoption upon failure to support the child for an extended period of time.” There is no mention of an intent to do more than reduce the time. Just as two years did not mean nineteen months in Cawley, so also one year does not mean eight months in this case. The proof is that Mrs. Wiley provided or offered support for four of the twelve months and that she was living at a poverty level during the entire one-year period. Involuntary termination of parental rights rests upon

Section 15.02. Subdivision (1) of that

Section lists several acts or omissions, one or more of which must be proved in a termination case. The list may not be an exclusive one, but so far as this case is concerned, the Welfare Unit relied only upon

Section 15.02(1)(E). Subdivision (2) of the same

Section 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 Subdivision (1) are not excused because a court may be of the opinion that Subdivision (2) has been proved. Suits for conservatorship, possession, and support are governed by

Chapter 14 of the Family Code and those matters are determined by the “best interest” test.

Section 14.07. Those proceedings are different and have different purposes from termination cases. Decrees under

Chapter 14 may be modified or changed from time to time, but the parent still retains some rights in and control over a child. A termination decree, on the other hand, is complete, final, irrevocable. It divests for all time the parent and child of all legal rights, privileges, duties, and powers with respect to each other except for the child’s right to inherit. See

Section 15.07. The difference in the proceedings justifies the caution with which courts have characteristically considered termination cases. Actions which break the ties between a parent and child “can never be justified without the most solid and substantial reasons.” State v. Deaton, 93 Tex. 243, 54 S.W. 901 (1900). Particularly in an action which permanently sunders those ties, should the proceedings be strictly scrutinized. This court has always recognized the strong presumption that the best interest of a minor is usually served by keeping custody in the natural parents. Herrera v.

Herrera, 409 S.W.2d 395 (Tex.1966); Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965); Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963). Mumma says: The presumption is based upon a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible, and, as well, the best atmosphere for the mental, moral and emotional development of the child. The natural right which exists between parents and their children is one of constitutional dimensions. Wisconsin v.

Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The presumptive right of parents is grounded on good policy considerations. Although “natural right” has developed firm roots in family law, the mere label obviously provides little concrete justification for protecting parents’ interests.

Modern theories of child welfare, however, offer persuasive support to parental rights, and suggest that the legal system should generally defer to the wishes of a child’s parents, obliging the state to bear a serious burden of justification before intervention. State Intrusion into Family Affairs: Justification and Limitations, 26 Stanford L.Rev. 1383, 1385 (1974). Mrs. Wiley proved that by the time of the trial in January, 1975, her financial condition had improved to the point that she had taken a training course to prepare herself for permanent employment which she had already obtained.

She undertook the training so she could get out of bars as a cocktail waitress. According to the testimony of a welfare worker at the time of trial, Mrs. Wiley was living alone in a “real cute” apartment. When the welfare worker visited Mrs. Wiley, unannounced, she found her apartment was clean, uncluttered and well-kept. She said that Mrs. Wiley should be commended for improving her working conditions. We conclude that there is no evidence to support the findings or the conclusion that Mrs. Wiley failed to support her child in accordance with her ability for the period of time required by the Family Code.

The judgments of the courts below are reversed and judgment is rendered that the termination of the parent-child relationship is denied. Dissenting Opinion by McGEE, J., in which GREENHILL, C. J., and DENTON and SAM D. JOHNSON, JJ., join. Concurring Opinion by STEAKLEY, J. .

Section 15.02(1)(

E) was changed to 15.02(1)(

F) effective September 1, 1975. Unless otherwise noted all statutory references are to Tex.Fam. Code Ann. (1975). . “2. During the one year period between July 17, 1973 and July 16, 1974, JACQUELYN LAYNE WILEY paid support for JAMIE LEIGH WILEY as follows: August 6, 1973 $33.00 May 14, 1974 30.00 July 2, 1974 30.00 TOTAL $93.00 During the same one year period between July 17, 1973, and July 16, 1974, JACQUELYN LAYNE WILEY attempted to make support payments as follows: April's; 1974 ' “ $30.00 3.

During the one year period between July 17,1973, and July 16,1974, JACQUELYN LAYNE WILEY had employment which produced salary or wages as follows: Employment Salary October, 1973, one to one and a half weeks at a ‘U-Totem’. Not stated. December, 1973, and January, 1974, more than one month at ‘The Other Place’. $50 per week, plus tips. March, 1974, and April, 1974, two months at ‘Golden Girl Enterprises’. Between $300 and $400 a month.

During the same on [sic] year period between July 17, 1973, and July 16, 1974, JACQUELYN LAYNE WILEY had lump sum savings accumulated as follows: August, 1973 $500 or more.” [TR. 55-56],