In Re: S.S.G.

The Gurneys provide citations to the record noting that although several opportunities were presented, the mother failed to express her intention that she did not want to give up the baby or words of similar import. Even if these references would be relevant to the ground asserted per Texas Family Code �161.001(1)(B), which was not submitted to the jury, they do not constitute expressions of"intent not to returnunder �161.001(1)(A), which is the basis of the order of termination.

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Click here for the full text of this decision FACTS:Following a jury trial, Ashley Gutierrez and Joseph Alarcon Gonzalez, unmarried parents of their daughter S.S.G., appeal the trial court’s judgment terminating the parent-child relationship between them and S.S.G. and appointing Jeffrey Donald Gurney and Alicia Munoz Gurney managing conservators of S.S.G. HOLDING:Reversed and rendered. Ashley and Joseph contend the trial court erred in denying their motions for judgment notwithstanding the verdict because there was legally insufficient evidence to support the jury verdict, in that there was no evidence for the jury to properly form a firm belief or conviction that they voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return. The court focuses on whether Ashley or Joseph “expressed an intent not to return” per Texas Family Code �161.001(1)(A). Although the trial consumed the better part of three days, the record on this subject is scant. Although Ashley executed a revocable medical power of attorney authorizing Jeffrey or Alicia, as Ashley’s “agent,” to obtain health care for S.S.G., the power of attorney was silent on Ashley’s intent “not to return.” Jeffrey and Alicia admitted that neither Ashley nor Joseph signed an affidavit for voluntary relinquishment of parental rights or a consent for adoption. ��161.103 and 162.010. Moreover, the authorization for release of S.S.G. that Ashley signed in the hospital merely acknowledged her consent to hospital authorities to release S.S.G. into the custody of the Gurneys, and like the power of attorney, it did not specify the terms, purpose, or duration of the custodial arrangement or contain a statement that she did not intend to return. Alicia and Ashley both testified they were considering an “open” adoption. The briefs do not define the term “open adoption;” however, from the record, it appears that Alicia and Ashley contemplated that Ashley would be permitted certain visitation rights. After receiving a phone call advising them that Ashley was in labor, the Gurneys went to the hospital; however, they did not go into Ashley’s room and the record does not show any communication between Alicia and Ashley at the hospital. Also, Joseph was not at the hospital before, during, or after S.S.G.’s birth. Approximately 36 hours after the baby’s birth, the Gurneys were allowed to remove S.S.G. from the hospital and take her to their home in Amarillo. By their brief, the Gurneys provide citations to the record noting that although several opportunities were presented, Ashley did not express that she did not want to give up the baby or words of similar import. Even if these references would be relevant to the ground asserted per �161.001(1)(B), which was not submitted to the jury, they do not constitute expressions of “intent not to return” under �161.001(1)(A), which is the basis of the order of termination. References to the record regarding Joseph’s intent not to return are similar to those cited regarding Ashley. The Gurneys do not reference the record to show any direct evidence that Ashley or Joseph “expressed an intent not to return.” The court concludes there is no direct evidence to support a finding that the natural parents “expressed an intent not to return.” In Interest of R.D.S., 902 S.W.2d 714 (Tex.App. � Amarillo 1995, no writ), the Gurneys erroneously suggest that the prior decision is controlling. However, R.D.S. is not controlling because each of the natural parents in R.D.S. had executed affidavits relinquishing their parental rights, and this court held that notwithstanding revocation, the affidavits remained indicative of the parents pre-existing intention. The Gurneys suggest that the “intent not to return” can be implied from the actions of the parents for several reasons. First, Jeffrey and Alicia did not request that the trial court give an instruction that circumstantial evidence would be sufficient or otherwise define the term “express” as they suggest. Moreover, in Wells v. Texas Pac. Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660 (1942), the court held that the law does not permit the pyramiding of one assumption upon another because an ultimate fact thus arrived at is too conjectural and speculative to support a judgment. Later, in Schlumberger Well Sur. Corp. v. Nortex Oil & G. Corp., 435 S.W.2d 854 (Tex. 1968), noting that although probative circumstantial evidence may be sufficient, a vital fact, essential to establishing legal elements for recovery may not be established by “piling inference upon inference.” Even if the jury considered that Ashley “had an intent not to return,” having the intent and expressing that intent are not synonymous. Even if the consent authorizing the hospital to allow the Gurneys to take the child from the hospital and the medical power of attorney signed by Ashley may be circumstantial evidence that Ashley had an intent not to return, a question this court does not decide, any inference that Ashley expressed an intent not to return cannot be “piled upon the inference that Ashley had an intent not to return.” Further, because Joseph did not sign either instrument, no inference arises as to him. Finally, according to Jeffrey, Ashley only signed and returned the medical power of attorney, not the affidavit of relinquishment of parental rights. Thus, her actions in so doing cannot support any logical inference that she did not “intend to return.” Having found that there was no direct evidence that each natural parent expressed an “intent not to return,” the court concludes the evidence in its entirety is legally insufficient to support the jury verdict that the natural parents expressed an intent not to return. OPINION:Reavis, J.; Quinn, Reavis and Campbell, JJ.

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