Assigned on Briefs October 1, 2014.
Appeal from the Juvenile Court for Montgomery County Nos. TPDV133048, TPDV133049, TPDV133050 Wayne C. Shelton, Judge.
Nicole A. Williamson, Clarksville, Tennessee, for the appellant, Joseph H. A.
Robert E. Cooper, Jr., Attorney General and Reporter and Jason I. Coleman, Assistant Attorney General, for the appellee, State of Tennessee.
Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P. J., M. S., and W. Neal McBrayer, J. joined.
RICHARD H. DINKINS, JUDGE.
Joseph H. A. ("Father") and Juliette N. S. ("Mother") are the parents of three children, Joseph A., born 2007, Josie A., born 2009, and Jillian A., born 2010. On May 4, 2012, the Tennessee Department of Children Services ("DCS") received a referral that the children were being exposed to drugs; the children were placed in protective custody of DCS on May 5. On May 8 DCS filed a Petition for Temporary Legal Custody and Ex Parte Order in Montgomery County Juvenile Court; the court entered an order placing the children in DCS custody and setting a preliminary hearing for May 10. At the preliminary hearing, the court found that there was probable cause to believe the children were dependent and neglected and ordered that the children remain in DCS custody pending an effort to place them with their maternal aunt in Texas. On June 22 a permanency plan was prepared and signed by both parents; the plan was ratified by the court on July 26. The effort to place the children with their aunt was not fruitful and an adjudicatory hearing was held on August 21; at that hearing, the children were adjudicated to be dependent and neglected and ordered to remain in DCS custody.
On July 31, 2013, DCS filed a petition to terminate the parental rights of both parents on the grounds of abandonment by failure to visit, failure to support and wanton disregard; failure to provide a suitable home; substantial non-compliance with the permanency plan; and persistence of conditions. On January 9, 2014, Mother surrendered her parental rights to the children and was dismissed from the case. On January 22, 2014, a hearing was held and an order terminating Father's parental rights on the grounds of abandonment by failure to visit, support, and to provide a suitable home, as well as persistence of conditions, was entered on February 14. Father appeals, contending that the evidence does not clearly and convincingly establish the grounds upon which his rights were terminated or that termination of his rights was in the best interest of the children.
II. Standard of Review
A parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a compelling state interest. Nash-Putnam, 921 S.W.2d at 174–75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statues identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., 2005 WL 1021618, at *7 (Tenn. Ct. App. April, 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A party seeking to terminate the parental rights of a biological parent must prove at least one of the statutory grounds for termination. Tenn. Code Ann. § 36-1-113(c)(1); In re D.L.B., 118 S.W.3d 360, 366–67 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Secondly, the party must prove that termination of the parental rights of the biological parent is in the child's best interest. Tenn. Code Ann. § 36-1-113(c)(2).
Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 766–69; In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Thus, both the grounds for termination and the best interest inquiry must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c); In re Valentine, 79 S.W.3d at 546. In light of the heightened standard of proof in these cases, a reviewing court must adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must then 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.
Tenn. Code Ann. § 36-1-113(g)(1) establishes abandonment, as defined at Tenn. Code Ann. § 36-1-102, as a ground for terminating parental rights. Tenn. Code Ann. § 36-1-102 (1)(A)(i) and (ii) defines "abandonment", ...