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In re Grace Y.

Court of Appeals of Tennessee, Nashville

September 30, 2014

IN RE: GRACE Y.

Session Date September 17, 2014

Direct Appeal from the Juvenile Court for Coffee County No. 13J-0315 Timothy Brock, Judge

Peter Trenchi, III, Sewanee, Tennessee, for the appellant, Roy Y.

John Edward Nicoll, Clarksville, Tennessee, for the appellees, Bonnie B. & Larry B.

Brandon O. Gibson, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and John W. McClarty, J., joined.

OPINION

BRANDON O. GIBSON, JUDGE

I. Facts & Procedural History

Grace Y. was born out-of-wedlock in August 2008. Around April 2010, the Department of Children's Services ("DCS") removed Grace from her parents' custody and filed a petition to adjudicate her dependent and neglected. Grace's parents waived their right to an adjudicatory hearing and consented to entry of an order finding that Grace was dependent and neglected due to their substance abuse. At the time, Grace's father ("Father") was incarcerated in the county jail. The juvenile court's adjudicatory order granted temporary legal custody of one-year-old Grace to Father's mother and stepfather ("the Grandparents").

The following year, when Grace was two years old, the juvenile court held another hearing and granted a motion filed by DCS to close the case. Father appeared at the hearing and agreed that Grace should remain in the custody of the Grandparents because he was unable to care for her due to a lack of income and stable housing. The juvenile court's order provided that Father could have unsupervised "day-time visits" with Grace, and it ordered him to pay the Grandparents $25 per week in child support.

In March 2013, when Grace was four years old, the Grandparents filed a petition to terminate Father's parental rights.[1] The Grandparents' petition alleged that they had acquired custody of Grace from her parents in April 2010, and it stated that the juvenile court had formally awarded them temporary custody in May 2011. The Grandparents asserted that statutory grounds for termination existed due to abandonment, Tenn. Code Ann. § 36-1-113(g)(1), and persistent conditions, Tenn. Code Ann. § 36-1-113(g)(3). They also asserted that termination of Father's parental rights was in Grace's best interest. The Grandparents sought complete guardianship of Grace so they could proceed with the filing of an adoption petition. The juvenile court appointed a guardian ad litem and appointed counsel for Father, who was incarcerated.

The juvenile court conducted a bench trial on the petition against Father on November 15, 2013. Father was transported from prison to the juvenile court for trial. At the beginning of the trial, counsel for the Grandparents informed the trial judge that the Grandparents were withdrawing their allegations pertaining to the ground of abandonment and proceeding solely on the ground of persistent conditions. Counsel for Father orally moved for bifurcation of the hearing, asking the trial court to first hear evidence pertaining to grounds for termination before considering evidence pertaining to best interest. The trial judge denied the motion, stating that he expected the proof to overlap and that he did not want "to hear things twice." During the trial, the court heard testimony from the Grandparents and from Father.

The trial judge announced his decision at the conclusion of the trial and entered a written order on December 3, 2013. For reasons that will be discussed in detail below, the trial judge found, by clear and convincing evidence, that the ground of persistent conditions had been established and that termination of Father's parental rights was in Grace's best interest. Consequently, the trial court terminated Father's parental rights and awarded guardianship of Grace to the Grandparents, as prospective adoptive parents. Father timely filed a notice of appeal.

II. Issues Presented

Father presents the following issues, which we have slightly reworded, for review on appeal:

1. Whether the trial court erred in finding that Father made no substantial change in the conditions that led to removal of the child and other conditions in his life;
2. Whether the trial court erred by projecting that future change was unlikely;
3. Whether the trial court's best interest analysis failed to consider the Grandparents' ...

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