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In re Jaden W.

Court of Appeals of Tennessee, Knoxville

December 26, 2014

In re JADEN W.

September 30, 2014 Session

Appeal from the Juvenile Court for Washington County No. J14348 Robert G. Lincoln, Judge

Charles G. Currier, Knoxville, Tennessee, for the appellants, Joe W. and Charlotte W.

Robert E. Cooper, Jr., Attorney General and Reporter; Alexander S. Rieger, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services

Michelle Lee Caggiano, Elizabethton, Tennessee, Guardian Ad Litem.

Kenny Armstrong, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and Thomas R. Frierson, II, J. joined.

OPINION

KENNY ARMSTRONG, JUDGE

I. BACKGROUND

The minor child at issue, Jaden W., [1] was born in December of 2012 to Joe W. ("Father") and Charlotte W. ("Mother, " and together with Father, "Parents"). The Tennessee Department of Children's Services ("DCS") first became involved in this case following an incident that occurred on August 15, 2013. That morning, Mother woke up and fed Jaden before going to work. Father then fed Jaden again, approximately three hours later, around 10:30 AM. Father allegedly took a nap after feeding Jaden, and woke up around noon to change Jaden's diaper and discovered at that time that Jaden was pale and unresponsive, and his leg was "twisted." Father contacted his wife to tell her something was wrong with Jaden, and she immediately contacted emergency medical services. An ambulance arrived at Parents' home shortly after Mother's call, and emergency medical personnel transported Jaden to Johnson City Medical Center ("JCMC"). Despite the severity of Jaden's condition at the time of transport, Father elected to not ride in the ambulance with his eight-month-old son to the hospital. Instead, he waited at home for his wife to arrive from work and drive him to the hospital.

The EMTs intubated Jaden during transport. Jaden presented at JCMC with bruising on his head, legs, and buttocks. Doctors at JCMC discovered a subdural hematoma on the left side of Jaden's head and decided that he would need to be monitored by a pediatric neurosurgeon. Jaden was then transported by air to the University of Tennessee Medical Center ("UTMC") so that he could undergo further treatment for his injuries. After Jaden was transported to UTMC, medical professionals discovered retinal hemorrhaging in both of Jaden's eyes and fractures in his left leg.

The Washington County Sheriff's Office and DCS personnel interviewed Parents at JCMC. Due to the severity of Jaden's injuries, the DCS investigator asked Parents to sign an Immediate Protection Agreement, which prohibited the Parents from having contact with Jaden for 48 hours. Parents voluntarily signed the agreement. On August 27, 2013, the Washington County Juvenile Court issued an emergency protective custody order placing Jaden in temporary state custody. Parents were arrested on charges of aggravated child abuse and neglect on September 11, 2013, and they have since been released on bail.

DCS filed a petition to terminate the Parents' parental rights on September 25, 2013. As grounds for its petition, DCS averred both severe child abuse pursuant to Tennessee Code Annotated Sections 36-1-113(g)(4) and 37-1-102(b)(23), and wanton disregard pursuant to Tennessee Code Annotated Sections 36-1-113(g)(1), 36-1-102(1)(A)(iv), -102(1)(C), -102(1)(E). The petition was heard by the Washington County Juvenile Court on December 3-6, 2013. At the trial, DCS presented testimony from medical experts, DCS employees, the Washington County Sheriff Office's criminal investigator, and an employee from Mother's former place of employment. In addition to their own testimony, Parents' evidence included the testimony of Mother's parents, Father's mother, and Parents' medical expert. The trial court entered its order on February 18, 2014 terminating Parents' parental rights on the grounds of severe child abuse and abandonment by wanton disregard. The trial court also found, by clear and convincing evidence, that termination was in Jaden's best interest. Parents appeal.

II. ISSUES

Parents raise several issues for review, which we consolidate and restate as follows:

1. Whether the trial court erred in entering a "no contact" order that prohibited visitation between the parents and the child?
2. Whether the trial court erred in finding that Mother severely abused Jaden?
3. Whether the trial court erred in finding that Mother exhibited a wanton disregard for Jaden's welfare?
4. Whether the trial court erred in finding that Father severely abused Jaden?
5. Whether the trial court erred in finding that Father exhibited a wanton disregard for Jaden's welfare?
6. Whether the trial court erred in finding that DCS provided reasonable efforts to assist Parents in remedying the issues that led to the removal of the child from their home?
7. Whether the trial court erred in determining that it was in the best interest of the child for Parents' parental rights to be terminated?

III. STANDARD OF REVIEW

Parents have a fundamental right to the care, custody, and control of their children. Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.1988). This right "is among the oldest of the judicially recognized liberty interests protected by the Due Process Clauses of the federal and state constitutions." In re M.J.B., 140 S.W.3d 643, 652–53 (Tenn. Ct. App.2004). "Termination of a person's rights as a parent is a grave and final decision, irrevocably altering the lives of the parent and child involved and 'severing forever all legal rights and obligations' of the parent." Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36–1–113(I)(1)). "'[F]ew consequences of judicial action are so grave as the severance of natural family ties.'" M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).

While parental rights are superior to the claims of other persons and the government, they are not absolute and may be terminated upon appropriate statutory grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing evidence of the existence of the grounds for termination of the parent-child relationship. In re Drinnon, 776 S.W.2d at 97. 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.

Tenn. Code Ann. § 36–1–113(c). "[A] court must determine that clear and convincing evidence proves not only that statutory grounds exist [for the termination] but also that termination is in the child's best interest." In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). The existence of at least one statutory basis for termination of parental rights will support the trial court's decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005).

The heightened burden of proof in parental termination cases minimizes the risk of erroneous decisions. In re C.W.W., 37 S.W .3d at 474; In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable. State v. Demarr, No. M2002–02603–COA–R3–JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.

In 2010, the Tennessee Supreme Court provided guidance to this Court in reviewing cases involving the termination of parental rights:

A reviewing court must review the trial court's findings of fact de novo with a presumption of correctness under [Rule 13(d) of the Tennessee Rules of Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793, ] 809 [(Tenn.2007)]. In light of the heightened burden of proof in proceedings under [Tennessee Code Annotated section] 36-1-113, the reviewing court must then make its own determination regarding whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, provide clear and convincing evidence that supports all the elements of the termination claim. State Dep't of Children's Servs. v. Mims, 285 S.W.3d [435, ] 447–48 [(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct. App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App.2004). Appellate courts conduct a de novo review of the trial court's decisions regarding questions of law in termination proceedings. However, these decisions, unlike the trial court's findings of fact, are not presumed to be correct. In re Angela E., 303 S.W.3d [240, ] 246 [(Tenn.2010)]; In re Adoption of A.M.H., 215 S.W.3d at 809.

In re Bernard T., 319 S.W.3d 586, 596–97 (Tenn. 2010).

IV. NO CONTACT ORDER

We first address Appellants' issue concerning whether it was proper for the trial court to enter a "no contact order" during these proceedings. In their brief, Appellants cite the law governing this issue; however, they failed to make any argument regarding how that law relates to the particular facts of this case. It is well settled that an appellate brief must contain an argument for each of the issues presented. See Tenn. R. App. P. 27. In other words, "an issue is waived where it is simply raised without any argument regarding its merits." Bean v. Bean, 40 S.W.3d 52 (Tenn. Ct. App. 2000). In that Appellants made no attempt to actually argue this issue in their brief, the issue is waived.

V. GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

A. Mother's Failure to Protect the Child

Appellants first assert that the trial court erred when it found that Mother committed severe child abuse when she failed to protect Jaden. Specifically, Appellants contend that the trial court's determination was not based on any scientific proof. In support of this argument, Appellants rely on the dissenting opinion in the United States Supreme Court case, Cavazos v. Smith, -- U.S. --, 132 S.Ct. 2 (2011). As correctly noted by the guardian ad litem, this Court has determined that the dissent in Cavazos is inapplicable in a termination of parental rights case. See In re Travion B., No. E2012-01673-COA-R3-PT, 2013 WL 4461903, at *6 (Tenn. Ct. App. Aug. 19, 2013) (noting that the Cavazos dissent "undertake[s] a review of developments in medical research in the context of criminal law"). Aside from Cavazos, Appellants have cited no authority, nor ...


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