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In re K.N.B.

Court of Appeals of Tennessee, Knoxville

September 30, 2014

In re K.N.B., et al.

Assigned on Briefs June 30, 2014

Appeal from the Juvenile Court for Sullivan County No. J38, 484 Mark Toohey, Judge

R.H.R. ("Father") appeals the trial court's judgment terminating his parental rights to his daughter, K.N.B., and to another child, S.M.J. (collectively "the Children"). Father is the putative biological father of S.M.J. The Department of Children's Services ("DCS") removed the Children and two half-siblings from their mother's home and placed them in protective custody after police discovered them living in deplorable conditions. They were placed in foster care and subsequently adjudicated dependent and neglected. A year and a half later, DCS filed a petition to terminate parental rights.[1] After a bench trial, the court terminated Father's parental rights to K.N.B. based on the court's finding that abandonment grounds were proven by clear and convincing evidence. As to S.M.J., the court terminated Father's rights based upon his failure to establish paternity. The trial court further found, also by clear and convincing evidence, that termination is in the best interest of the Children. Father appeals.[2] He argues, with respect to S.M.J., that the evidence is insufficient. With respect to K.N.B., he asserts that he was incarcerated during a portion of the four-month period immediately preceding the filing of the petition to terminate and, consequently, DCS and the trial court erred in relying upon that four-month period in assessing the grounds of willful failure to visit and willful failure to support. He does not contest the trial court's best-interest determination. We affirm as to the child S.M.J. and reverse as to K.N.B.

Tenn. R. App. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part and Reversed in Part; Case Remanded

Kenneth E. Hill, Kingsport, Tennessee, for the appellant, R.H.R.

Robert E. Cooper, Jr., Attorney General and Reporter, and Leslie Curry, Office of the Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

Polly A. Peterson, Johnson City, Tennessee, Guardian ad litem.

Charles D. Susano, Jr., C.J., delivered the opinion of the Court, in which D. Michael Swiney and John W. McClarty, JJ., joined.

OPINION

CHARLES D. SUSANO, JR., CHIEF JUDGE

I.

This appeal focuses on Father's parental rights to the oldest, i.e., K.N.B., born in 2005, and youngest, i.e., S.M.J., born in 2010, of Mother's four children. In a 2006 child support action, Father's paternity of K.N.B. was established, and he was ordered to pay child support of $306 a month. There is a question regarding the paternity of S.M.J. Despite signing her birth certificate, D.L.J., Sr., denied to DCS that he was the father of S.M.J. He never produced any evidence to corroborate his claim. Mother informed DCS that she told Father "from the beginning" that S.M.J. was his child.

DCS first became involved with the family in March 2010 after being advised that the infant, S.M.J., was born exposed to drugs and that K.N.B.'s education was being neglected. A non-custodial parenting plan was implemented that permitted the Children to remain at home while Mother sought alcohol and drug abuse treatment. On January 30, 2011, the police summoned DCS to the home. DCS arrived to find three of the children living with Mother in "deplorable conditions." S.M.J. was found in her crib drinking spoiled milk. Her hands and feet had turned purple. Two other children were confined to a bedroom where feces were smeared on the floor and walls. They allegedly had not eaten in days. When DCS arrived on the scene, K.N.B. was at the home of a family friend. Mother was arrested and charged with felony child neglect. All four children were taken into protective custody and placed in foster care. At the time of their removal, Father's whereabouts was unknown. Mother advised DCS that he had not been around and did not visit or provide support for K.N.B. In October 2011, the Children were adjudicated dependent and neglected.

Evidence of Father's criminal history indicates that he was most likely in jail when the Children entered state custody. Weeks earlier, on January 11, 2011, Father was convicted of two drug-related offenses and sentenced to 11 months, 29 days in jail, with all but 45 days suspended. DCS filed its petition to terminate Father's rights to the Children on June 7, 2012. In the months prior to the filing, Father made several more court appearances. On February 29, 2012, he was arrested on "several" outstanding warrants in Sullivan County and as a fugitive from justice based on papers out of Scott County, Virginia. On March 3, 2012, Father waived extradition, but the record does not reflect when he was taken to Virginia or whether he was incarcerated there. However, on March 8, 2012, Father was still in Sullivan County. He appeared in general sessions court on two counts of assault and a charge of vandalism stemming from a May 2011 altercation with his parents at their home. Father's parents informed police at that time that Father had "a very bad drug addiction." Father pleaded no contest to the charges and was sentenced to 11 months, 29 days, with all but 15 days suspended. In addition, he was restrained from having "violent contact" with his parents.

Trial on the petition to terminate was held over four days beginning in May 2013 and concluding in December 2013. Travis Sherfey was the Children's DCS case manager since 2010 and continued to handle their case after they came into state custody. At the initial DCS child and family team meeting on February 2, 2011, Mr. Sherfey received information that Father might be living with a girlfriend or with his Mother, but a specific street address was not given. Because Father could not be located, DCS was unable to investigate Father and his circumstances to determine whether he was a possible placement option for the Children.

In the days that followed, Father called Mr. Sherfey. Mr. Sherfey told Father "what was going on, that the [C]hildren were in State's custody and that he need[ed] to participate" in a child and family meeting scheduled for February 18, 2011. Mr. Sherfey informed Father that the purpose of the meeting was to "write the plan for how the [C]hildren were going to leave State's custody and what each . . . party's responsibilities are for that, " including visitation and child support. Before the meeting, Mr. Sherfey had pre-conference meetings with all three involved individuals – Mother, Father, and D.L.J., Sr., to be sure they could work together. Father appeared at DCS for the February 18 meeting.[3] During the meeting, Father became upset and walked out. Before he left, however, he was "very clear" that he wanted to pursue custody of K.N.B. As he was leaving, Father told Mr. Sherfey that he would call him within the next three days to work out his part of the permanency plan. Mr. Sherfey followed Father outside to talk with him further. He made sure that Father had his phone number. Mr. Sherfey told Father to contact him and he would schedule another child family team meeting so he could write Father's responsibilities into the plan. Thereafter, Father never contacted Mr. Sherfey, and Mr. Sherfey was never able to reach Father again.

Records obtained from the Child Support Enforcement Division reflect that Father's paternity of K.N.B. was established in a June 2006 child support case and Father was ordered to begin paying child support of $306 per month. The following month, Father made his first and only child support payment. From the time of the Children's removal until the filing of the termination petition, Father had no contact with the child. To Mr. Sherfey's knowledge, Father never provide anything, money or non-monetary items, toward K.N.B.'s support at any time since the child entered foster care. Mr. Sherfey questioned Father about his income and employment, and Father indicated that he had been looking, but was unable to find a job. Father provided nothing to show that he was disabled or otherwise unable to work, nor did he provide any proof to corroborate his claim that he was actively seeking employment.

DCS case manager Stacy Humphrey took over the Children's case in July 2012, after the termination petition was filed. In October 2012, Father's counsel contacted her to request that she arrange visits for Father with K.N.B. On November 30, 2012, Father met with Ms. Humphrey about visitation and other matters; Mother participated via telephone from jail. At the meeting, Ms. Humphrey scheduled weekly visits for Father with K.N.B. Father had his first visit with K.N.B. on December 6, 2012, and his next, and last, on January 24, 2013. After that, Father did not contact Ms. Humphrey again. Although she was unable to reach Father directly from that point on, she was able, a few times, to leave messages for him with his "paramour." Ms. Humphrey repeatedly left messages asking Father to contact her to discuss rescheduling or resuming his visits with K.N.B., but Father never responded.

As the November 30 meeting continued, the issue of S.M.J.'s paternity was discussed. According to Ms. Humphrey, Mother indicated that she had told Father from the beginning that S.M.J. was his child. Father had not filed a petition to establish paternity of the child and did not ask any questions or seek Ms. Humphrey's help in doing so. During the meeting, Ms. Humphrey brought up Father's lack of involvement in the Children's case to that point. Father explained that he had not maintained contact with DCS earlier because he had been "on the run" from the law. Ms. Humphrey reviewed with Father the criteria for termination based on abandonment. He had no questions and appeared to understand what was explained. Ms. Humphrey administered a drug screen at the meeting. Father tested positive for use of oxycodone.

At the time of trial, the Children, and their half-siblings, had been in foster care for two and a half years. They remained together in a foster home in Rogersville. When K.N.B. entered foster care she was "unprepared" for school and had to repeat kindergarten, but since then did "very well" in school. Although all four children continued to have behavior issues when they first came to foster care, but their case manager testified that they were improving. She observed that their foster mother was better able to parent and command the children's attention. In August 2012, K.N.B. began attending therapy sessions at Frontier Health. Her therapist testified that they mostly dealt with K.N.B.'s behavior at school and her habit of taking things that didn't belong to her. K.N.B. was diagnosed with attention deficit disorder, oppositional and defiant behavior and post traumatic stress disorder. She was prescribed medication and was receiving intensive in-home therapy both in her foster home and at school.

On February 1, 2013, Father participated in a DCS meeting to establish a new permanency plan. For the first time, Father and his specific responsibilities were included in the plan. Ms. Humphrey provided a copy of the revised plan to Father. By the time trial began some five months later, Father had not completed any of his required actions.

At the conclusion of the termination trial, Father moved to dismiss the case as to him in view of DCS's admitted failure to provide him with notice of the definition and consequences of abandonment prior to the filing of the petition for termination. After trial, the court withheld ruling to allow for further legal research on the law concerning the giving of notice to a parent as a pre-requisite to the filing of a petition to terminate.

On January 24, 2014, the trial court entered its order terminating Father's rights. The court found that DCS demonstrated that it made reasonable efforts to notify Father of the criteria and consequences of abandonment, but that Father had thwarted these efforts. On considering the substantive grounds for termination, the trial court found, as to K.N.B., that the grounds of abandonment by willful failure to visit and by willful failure to provide child support were proven by clear and convincing evidence. As to S.M.J., the trial court found clear and convincing evidence proving that Father failed to establish his paternity of the child. Lastly, the trial court found that termination is in the best interest of both children. This finding was said to be made by clear and convincing evidence. Father timely filed a notice of appeal.

II.

Father presents issues for our review that we have restated as follows:

1. The trial court erred in terminating Father's rights on grounds of abandonment because DCS failed to provide Father with the notice of the definition and potential consequences of abandonment as mandated by statute.
2. The trial court applied an erroneous standard of proof in determining whether DCS satisfied the statutory notice requirements concerning the ground of abandonment.
3. The petition to terminate relied upon the wrong four-month period in assessing whether Father willfully failed to visit and failed to support the Children.

III.

With respect to parental termination cases, this Court has observed:

It is well established that parents have a fundamental right to the care, custody, and control of their children. While parental rights are superior to the claims of other persons and the government, they are not absolute, and they may be terminated upon appropriate statutory grounds. A parent's rights may be terminated only upon "(1) [a] finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established; and (2) [t]hat termination of the parent's or guardian's rights is in the best interest[] of the child." Both of these elements must be established by clear and convincing evidence. Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.

In re Angelica S., E2011-00517-COA-R3-PT, 2011 WL 4553233 at *11-12 (Tenn. Ct. App. E.S., filed Oct. 4, 2011) (citations omitted).

"As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise." In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004); Tenn. R. App. P. 13(d). Our role is to determine "whether the facts, as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements necessary to terminate parental rights." Id. at 654. Great weight is accorded the trial court's determinations of witness credibility, which court findings will not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Questions of law are reviewed de novo with no presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741 (Tenn. 2002).

IV.

A.

In his first two issues, Father contends that the trial court erroneously terminated his parental rights despite undisputed proof that he was not provided with statutory notice of the definition and potential consequences of "abandonment" as a ground for termination. Father's argument is essentially two-fold. He asserts that the trial court (1) impermissibly accepted trial testimony in lieu of an affidavit from DCS detailing its efforts to provide Father with the required notice; and (2) applied the wrong standard of proof in evaluating DCS's efforts to provide the required notice. In this section, we address these related issues in turn.

Father's argument implicates provisions of Tenn. Code Ann. ยง 37-2-403 (2014). The statute provides, ...


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