Hаrris County Child Welfare Unit (HCCWU) and Mildred Rebstock (Appellants) bring this appeal from a judgment terminating the parent-child relationship between Mildred Rebstock and her minor daughter, Cindy Rebstock, (Cindy) and further allowing George and Beverly Caloudаs (Appellees) to adopt the minor child. The questions before this court are whether the appellees, as foster parents, have standing to petition for termination of parental rights and adoption and whеther the district court has jurisdiction to decide such a suit. We hold that the appellees have the standing to bring their petition and that the district court in which it was filed has exclusive jurisdiction to determine the issues raised.
We affirm.
Cindy was born to Mildred Rebstock in Harris County, Texas, on October 21, 1975. It is undisputed that at the time of her birth appellant had been using drugs and the child suffered some withdrawal symptoms. Approximately four months later, February 1976, Cindy was taken into custody by HCCWU pursuant to the emergency provisions of the Texas Family Code § 17.-01. Thereafter, HCCWU was appointed temporary managing conservator of the child and by agreement with Christian Child Help Foundation, (CCHF) Cindy was placed in the foster home of George and Beverly Caloudas. In March 1976, HCCWU filed a petition to terminate appellant Mildred Rebstock’s parental rights alleging she had allowed the child to remain in dangerous surroundings; she had engaged in conduct endangering the child; and she had failed to support the child. No further action was taken in this cause. In October 1976, appellant was convicted of possession of drugs and was given a ten year probated sentence, conditiоned, among other terms, upon her participation in the Alternative Drug Abuse Program. Appellant participated in the program for two years. During the first year, she was not allowed to visit her child, but in the second year, HCCWU initiated visitation between appellant and Cindy as a preliminary step in a program to eventually reunite Cindy and her mother. While appellant continued her rehabilitation, Cindy remained in the appel-lees’ home. In Marсh 1978, appellees instituted a suit to terminate the parent-child relationship between appellant and Cindy, and two men, each of whom' was alleged to be Cindy’s father. Both men filed waivers disclaiming any interest in the proсeedings and the matter went to trial without them as parties. Appellees further prayed that they be allowed to adopt Cindy. Appellees’ suit was consolidated with the original suit *598 filed by HCCWU. In May, 1978, HCCWU amended their original petition for termination to a suit seeking managing conserva-torship so that'it could supervise the return of the child to her mother.
Trial was to a jury in October 1978, with the jury answering four special issues. By a preponderance of the evidence, the jury found:
1. Mildred Rebstock knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical and emotional well being of the child.
2. Mildred Rebstock engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical and emotional well being of the child.
3. The termination of the parent-child relationship between Mildred Reb-stock and Cindy would be in the best interest of the child.
4. The best interests of the child would be served by appointing George and Beverly Caloudas as managing conservator.
The court entered judgment on the jury verdict and allowed appellees to аdopt the child.
Harris County Child Welfare Unit presents four points of error; appellant Mildred Rebstock presents one.
By their first two points of error, HCCWU complains the trial court erred in denying appellants’ motions to dismiss aр-pellees’ suit on grounds of appellees’ lack of standing, and further that appellees had violated a contract they executed upon being designated a foster home, which expressly forbids the adoрtion of any child in their care.
In the instant case, the court docket sheet does state “Motions denied (1-2 & 3).” It does not state if these are the same motions, and the record before this court does not show any judiciаl order regarding these motions, or whether appellant excepted to the judge’s order. The docket sheet cannot stand as an order or substitute for such record.
Kollman Stone Industries, Inc. v. Keller,
On appeal, HCCWU asserts the violation of a contract, specifically forbidding this аdoption. At the trial level, however, HCCWU filed no pleadings alleging this theory. An appellant is limited to the theories upon which the case is tried and he may not appeal the case on new or different theories.
Brown-McKee, Inc. v. Western Beef, Inc.,
By points of error three and four, HCCWU generally contends that the district court had no authority to terminate the parental rights of appellant Mildred Rebstock without its concurrence, since it was the agency mandated by statute to determine and provide fоr the best interest of a child such as Cindy. It further argues that the right of natural parents to their *599 children is paramount and that once it had begun a program to reunite child and mother, public policy demanded that it be allowed discretion to pursue its objective and that the trial court erred in terminating the parental rights of Mildred Rebstock and appointing appellees managing conservator, since they were foster parents and lacked standing to bring their suit.
HCCWU cites many cases from foreign jurisdictions involving foster care contracts with state agencies and individuals. No guidance can be gathered from such references as each state follows its own stаtutory authority in these matters. Texas is no exception and pursuant to the constitutional mandate set forth in Art. V, § 8, the district courts have always exercised original jurisdiction and general control over minor children “under such rеgulations as may be prescribed by law.” Consequently, with the enactment of the Texas Family Code, the rights, privileges, duties and responsibilities of agencies and persons dealing with minor children have been set out and defined in minute dеtail. No distinction is made between an authorized agency and a person. Tex.Fam.Code Ann. § 14.-02(b), 14.02(c) (Yernon 1975). Section 11.03 (1974) of the Code provides that any interested person may bring a suit affecting the parent-child relationship as such suit has been defined in Sec. 11.01(5) (1975) of the Code. It must be conceded that for the purposes of petitioning for managing conservator or adoption, there are no such entities as “legal strangers.” Section 16.02 (1975) of the Code provides that any adult is eligible to adopt a child who is eligible to be adopted. Indeed, it has been recently held, as pointed out in appellees’ excellent brief, that:
“The express purpose of the statutory scheme of adoption is to create a parental relationship with the rights, powers, and responsibilities pertaining thereto between persons who prior to the adoption were genеrally legal strangers.”
The foregoing excerpt is from the majority opinion in the case of
In the Interest of an Unnamed Child,
We have examined all authorities submitted by the parties and conclude that the trial court had the jurisdiction and duty to carry out its responsibility to enter judgment based upon the best interest of the child. The appellees had standing to bring their petition. Points of error three and four are overruled.
By her one point of error, appellant Mildred Rebstock objects to jury finding number 3, contending that evidence of the best interest of the child was legally insufficient to terminate her parental rights. • Where appellant directs her point to the legal sufficiency of the evidence, this is considered a no evidence рoint and as such the court must look to see if there is evidence to support the finding and disregard all inferences to the contrary.
Garza v. Alviar,
While there is no statutory definition of “best interest of the child,” Tex.Fam.Code Ann. § 14.07(a) (Vernon 1975), appellant cites the case of
Holley v. Adams,