Texas Case Law

DOCKERY v. STATE, 03-05-00713-CV (Tex.App.-Austin [3rd
Dist.] 11-14-2006) Barry C. Dockery, Appellant v. The State
of Texas, Appellee. No. 03-05-00713-CV Court of Appeals of
Texas, Third District, Austin. Filed: November 14, 2006.

Appeal from the District Court of Travis County, 126th
Judicial District, No. FM204655, Honorable W. Jeanne
Meurer, Judge Presiding.

Affirmed on Motion for Rehearing.

Before Chief Justice LAW, Justices PATTERSON and PEMBERTON.



In response to the appellant’s motion for rehearing, we
withdraw our memorandum opinion and judgment of May 19,
2006, and substitute the following.
Barry C. Dockery appeals the denial by the trial court of his
petition for. See Tex. Fam. Code Ann. § 161.005 (West 2002).
In four issues, he seeks the appointment of an attorney on
appeal, the voluntary and permanent relinquishment of his
parental rights, and the release from any child support
arrearage owed by him. Because the trial court did not abuse
its discretion in finding that termination is not in the
child’s best interest, we affirm the judgment.

A 2002 judgment by a Travis County district court found
Dockery’s paternity and established the parent-child
relationship between Dockery and his son Phillip. The trial
court awarded retroactive child support and ordered Dockery
to pay current child support until the latter of the son’s
emancipation or graduation from high school. At the time of
the September 2005 hearing on Dockery’s termination action,
Phillip was almost nineteen years old, was not disabled,
and was enrolled in college. Dockery owed a significant
amount of child support arrearage. After a hearing on
Dockery’s petition to terminate, the trial court denied the
petition. Dockery appeals the denial of his petition to

Dockery seeks to terminate his parental responsibilities
under a rarely used provision of the family code. See
id.[fn1] To grant a petition to terminate, the court must
find that the termination is in the child’s best interest.
Section 161.005(a) of the family code provides: “A parent
may file a suit for termination of the petitioner’s
parent-child relationship. The court may order termination
if termination is in the best interest of the child.” Id.
§ 161.005(a). Although this provision was enacted in
1973,[fn2] it has not been widely invoked. In re T.S.S., 61
S.W.3d 481, 484 (Tex.App.-San Antonio 2001, pet. denied);
see also Nichols v. Nichols, 803 S.W.2d 484 (Tex.App.-El
Paso 1991, no writ); Linan v. Linan, 632 S.W.2d 155
(Tex.App.-Corpus Christi 1982, no writ).

In Nichols, three years after the divorce decree had found
that the parties were the parents of the child and had set
child support payments, the father filed a petition to
terminate his parent-child relationship, alleging that he
was not the biological father, that another man was, and
that voluntary termination of the current relationship was
in the best interest of the child. Nichols, 803 S.W.2d at
484-85. When the mother failed to appear at trial, the
trial court granted the father a default judgment. Id. at
485. The court of appeals reversed, finding the failure to
appoint an attorney ad litem to represent the best interest
of the child to be fundamental error. Id. Recognizing that
other legal doctrines such as res judicata and collateral
estoppel may operate to defeat termination, the court
reasoned that “the petition is to be granted only if the
court finds that the termination is in the best interest of
the child.” Id.

In Linan, the Linans had married, adopted a child, and then
divorced. Linan, 632 S.W.2d at 155-56. As here, the father
was in arrears on his child support payments when he filed
a motion to terminate parental rights. Id. at 156. The
motion to voluntarily terminate parental rights was heard
at the same time as the mother’s motion for contempt
concerning failure to make timely support payments. Id. The
trial court denied the motion for termination and found the
father in contempt, but reduced his payments by $10 a week.
Id. Claiming it was in his daughter’s best interest to
terminate because the mother prevented him from seeing his
daughter in accordance with the visitation rights afforded
him in the divorce decree, Linan appealed the denial of
termination. Id. In light of Linan’s admission that a
termination would leave his daughter without a father and
without financial support, the court found that it was not
an abuse of discretion to deny the petition to terminate.

Likewise in T.S.S., a divorce decree, approved by the
parents, recited that they were the child’s parents and that
the child was born of the marriage. T.S.S., 61 S.W.3d at
482. Ten years later when the mother sought an increase in
child support, the father sought to terminate the
parent-child relationship. Id. at 483. He claimed that he
was not the biological father and that the prior
adjudication of parentage in the decree of divorce resulted
from fraud. Id. The court rejected his fraud claim, meaning
that his contention that it was in his child’s best
interest for the parent-child relationship to be terminated
was based solely on his claim that he was not the
biological father; the court held: “That being the case,
and because the issue of parentage is precluded by
collateral estoppel, there is no other basis upon which to
support a best-interest determination.” Id. at 488.

Here, Dockery acknowledges in his petition that he is the
father of the child that is the subject of the suit. At the
hearing, he made it clear that one of his purposes in
seeking a termination was to eliminate his child support
arrearage. To support his allegation that the termination
served his son’s best interest, Dockery asserted only that
his son is now an adult and would have nothing to do with
him, and that Dockery did not want a relationship with his
son. Dockery testified that he had been in and out of
prison and that he had had minimal contact with his son. In
response to the court’s inquiry as to how “that is in his
best interest that I terminate your rights?”, Dockery
responded, “Why wouldn’t it be in his best interest if he
has a dad that doesn’t want to spend no time with him. He
don’t want to spend no time with me.” Dockery’s sister
testified that Dockery has not been employed since his
release from prison in 2002 and that he was seeking relief
from the child support arrearage because he had another
child to support. At the close of the hearing, the trial
court denied the petition to terminate.

The trial court did not abuse its discretion in denying
termination. Dockery provided no evidence that termination
was in the child’s best interest. Because his child is now
nineteen, Dockery argues that he should not have to prove
termination is in his son’s best interest. But this
contention is contrary to section 161.005(a), and the trial
court properly denied Dockery’s petition.

Dockery also seeks the appointment of counsel on appeal. He
did not seek appointment of counsel in the court below and
does not cite the basis for his request on appeal. In any
event, he has not shown any constitutional or statutory
right to counsel. This case is distinguishable from a case
in which the state seeks to involuntarily terminate a
parent’s rights.

Dockery also seeks relief from his child support
obligations. The family code expressly prohibits the
reduction or modification of child support arrearage,
except under circumstances not applicable here. Tex. Fam.
Code Ann. § 157.262(a) (West 2002). The code also
prohibits the retroactive modification of child support.
Id. § 156.401(b) (West Supp. 2006). Even if the
trial court were to grant Dockery’s voluntary termination,
that termination would not alter his child support

We overrule Dockery’s issues on appeal and affirm the trial
court’s judgment.

[fn1] In Texas, this provision is most commonly used when a
birth mother wants to place her baby for adoption. See
Robinson C. Ramsey, Termination of Parental Rights, in 4
Texas Family Law Service, § 33.8 (6th ed. 1997).

[fn2] Act of June 15, 1973, 63rd Leg., R.S., ch. 543,
§ 15.01, 1973 Tex. Gen. Laws 1411, 1426 (amended
1995) (current version at Tex. Fam. Code Ann. §
161.005(a) (West 2002)).