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In re Kaliyah S.

Supreme Court of Tennessee, Knoxville

January 22, 2015

IN RE KALIYAH S. ET AL

Session: September 4, 2014.

Page 534

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed; Judgment of the Trial Court Reinstated. Appeal by Permission from the Court of Appeals, Eastern Section Juvenile Court for Bradley County. No. J-08-435. Daniel Ray Swafford, Judge.

Robert E. Cooper, Jr., Attorney General & Reporter; Joseph E. Whalen, Acting Solicitor General; Alexander S. Rieger, Assistant Attorney General; and Kathryn A. Baker, Assistant Attorney General, for the appellant, Tennessee Department of Children's Services.

Wilton Marble, Cleveland, Tennessee, for the appellee, Rontez L.

HOLLY KIRBY, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and CORNELIA A. CLARK, GARY R. WADE, and JEFFREY S. BIVINS, JJ., joined.

OPINION

Page 535

HOLLY KIRBY, JUSTICE.

In this petition to terminate the parental rights of a biological parent, we granted permission to appeal to address whether the State is required to prove that it made reasonable efforts to reunify the parent with the child as a precondition to termination. We hold that it is not. An action to terminate the parental rights of a biological parent is governed by Tennessee Code Annotated § 36-1-113. The language of Section 36-1-113 makes the State's efforts to assist the respondent parent one of the factors to be considered in determining whether termination of the parent's rights is in the child's best interest. After reviewing the language of Section 36-1-113, other pertinent statutes, the legislative history, and caselaw interpreting Section 36-1-113, we hold that, in a termination proceeding, the extent of the efforts made by the State is weighed in the court's best-interest analysis, but the State need not prove that it made reasonable efforts as an essential component of its petition to terminate parental rights. In so doing, we overrule In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326 (Tenn. Ct. App. Mar. 9, 2004), and its progeny to the extent that those cases required the State to prove reasonable efforts as an essential component of the termination petition. Accordingly, we reverse the decision of the Court of Appeals and reinstate the judgment of the juvenile court terminating the parental rights of the respondent father.

OPINION

Facts and Proceedings Below

Kayla S. (" Mother" ) is the biological mother of two children, the child at issue in this appeal, Kaliyah S., born in July 2008, and Kaliyah's younger sister Jaya P., born in January 2010. Respondent/Appellee Rontez L. (" Father" ) is Kaliyah's biological father. Josh P. (" Josh" ) is the biological father of the younger child, Jaya. This appeal reviews only the termination of Father's parental rights as to the older child, Kaliyah.

Factual Background

By the time Kaliyah was born, Mother and Father were no longer together, and Mother had begun a relationship with Josh. Mother, Josh, and Father all knew that Father, and not Josh, is Kaliyah's biological father. Despite this knowledge, Mother listed Josh as Kaliyah's father on the child's birth certificate. After Kaliyah's birth, Mother, Josh, and Kaliyah lived together as a family in Bradley County, Tennessee.

In October 2008, when Kaliyah was about three months old, the Petitioner/Appellant State of Tennessee, Department of Children's Services (" DCS" or " the State" ) responded to a call from the home of Mother and Josh and found suspicious bruises on Kaliyah. DCS filed a dependency and neglect petition in the Juvenile Court for Bradley County (" Juvenile Court" ) against both Mother and Josh. The Juvenile Court entered an order finding

Page 536

Kaliyah dependent and neglected and removed the child from the home. The order included a no-contact provision that prohibited Josh from having any contact with Kaliyah. Kaliyah was placed in a foster home.

The permanency plan DCS subsequently developed for Mother and Josh referenced its ongoing child abuse investigation and the no-contact order against Josh. Despite this, Mother continued her relationship with Josh. The younger child, Jaya, was conceived while Kaliyah was in DCS custody.

On June 25, 2009, DCS returned Kaliyah to Mother's custody. At the time, it appeared to DCS that it was safe to return the child to Mother's care because Josh was no longer living with Mother and the no-contact order against Josh remained in effect. Not long after that, Josh moved back in with Mother and Kaliyah.

Jaya was born in January 2010. By October 2010, Mother, Josh, Kaliyah, and Jaya had moved into an extended-stay motel room in Cleveland, Tennessee. Mother attended school and worked one or two jobs. While Mother was away, Josh was the caregiver for two-year-old Kaliyah and infant Jaya.

Meanwhile, Father spent a significant amount of time in jail. From February 2009 to August 2009, Father was incarcerated on several drug offenses. In December 2009, Father was convicted on a domestic assault charge. Shortly after that, he was convicted on a vandalism charge and returned to jail in February 2010 for violating parole. He was again released on probation in July 2010. A short time later, he was re-arrested for domestic assault. He pleaded guilty and received a 364-day sentence. Father was released on November 29, 2011, just a week before commencement of the trial in this case.

When Father was not in jail, Mother occasionally brought Kaliyah to visit Father at his home.[1] At times when Kaliyah was in foster care and Father was not in jail, he visited her occasionally in her foster home. At no point, however, did Father seek or have custody of Kaliyah. He never had any regular structured parenting time with the child, and he never paid any child support for her.

In May 2010, during one of Father's prison stays, the State of Tennessee filed a petition on Mother's behalf to establish Father's paternity as to Kaliyah. In response, Father waived his right to a DNA test and admitted that he is Kaliyah's biological father.[2] On May 6, 2010, the Juvenile Court entered an order establishing Father as Kaliyah's biological father and ordering him to make child support payments. Father made no support payments according to that order or otherwise.

On the morning of November 22, 2010, eleven-month-old Jaya began having seizures. Emergency medical personnel were called and Jaya was air-lifted to a local hospital. Once there, the child was found to have suffered a horrifying array of injuries, including intracranial hemorrhaging, retinal bleeding in both eyes, and fractures in both legs. Some of the injuries were old, and others had occurred within seventy-two hours before the child was admitted to the hospital. DCS received a report diagnosing infant Jaya with

Page 537

possible shaken baby syndrome.[3] DCS concluded that Jaya's injuries resulted from abuse by either Mother, Josh, or both.

In the wake of the diagnosis of Jaya's injuries, DCS took both Kaliyah and Jaya into emergency protective custody. Both were placed in foster care.

Termination Proceedings

On November 30, 2010, about a week after the children were taken into DCS protective custody, DCS filed a combined petition in the Juvenile Court, asserting that Kaliyah and Jaya were dependent and neglected and seeking termination of the parental rights of both Mother and Josh. The petition alleged that Mother and Josh had committed severe abuse against both children.[4] Severe abuse was the basis for DCS's request for a declaration of dependency and neglect as well as the statutory ground for termination of the parental rights of Mother and Josh.[5] See Tenn. Code Ann. § 36-1-113(g)(4) (2014) (listing severe abuse in dependency and neglect proceedings as ground for termination of parental rights); id. § 37-1-102(b)(21) (2014) (defining severe abuse, which is a basis for a finding of dependency and neglect). The Juvenile Court gave DCS temporary protective custody of both children pending a hearing.

On December 2, 2010, after a preliminary hearing, the Juvenile Court found probable cause to conclude that both children were dependent and neglected by reason of severe abuse. Based on this finding, it excused DCS from making reasonable efforts to reunify the children with either Mother or Josh.[6] See Tenn. Code Ann. § 37-1-166(g)(4)(A) (2014).

When DCS filed its Juvenile Court petition against Mother and Josh, it was laboring under the mistaken belief that Josh, listed as the father on Kaliyah's birth certificate, was Kaliyah's biological father. Eventually, DCS discovered that Father had been determined to be Kaliyah's biological father in separate paternity proceedings. A DCS caseworker then located Father, who was incarcerated at the time. In December 2010, DCS prepared a permanency plan for Father and brought it to him in jail. Father signed the plan and mailed it back to DCS.

Page 538

On May 25, 2011, while Father was still incarcerated, DCS amended its Juvenile Court petition to include Father as a respondent and to seek termination of his parental rights as to Kaliyah. In the amended petition, the ground for termination of Father's parental rights was abandonment by engaging in conduct prior to incarceration that exhibited wanton disregard for the child's welfare.[7] Tenn. Code Ann. § § 36-1-113(g)(1), -102(1)(A)(iv). In apparent reliance on the aggravated-circumstances exception in Section 37-1-166(g)(4)(A),[8] DCS averred: " Reasonable efforts [to reunify] are not required in the termination grounds against [Father]." DCS also asserted in the amended petition that Kaliyah's best interest would be served by terminating Father's parental rights.

Beginning on December 5, 2011, the Juvenile Court conducted a trial in this matter on six, non-consecutive days over the course of some fifteen months, concluding on March 11, 2013. Much of the testimony at trial centered on the abuse of the children by Mother and Josh. The evidence related to Father was undisputed in all relevant respects. It included Father's October 2012 testimony that he was again incarcerated, this time on additional charges of aggravated assault and aggravated domestic assault, and that he would not be eligible for release from prison until early 2013.

On the last day of trial, at the end of the State's case-in-chief, Father's attorney made an oral motion to dismiss the termination petition against Father. As the basis for the motion, counsel for Father stated: " [N]othing in the file . . . indicates the State made any reasonable efforts with respect to [Father]. And I think what had happened was because [Father] had been lumped in with two potential abusers, and in severe abuse cases [DCS does not] have to make reasonable efforts." Counsel for Father noted that the termination petition did not even allege that DCS had made reasonable efforts as to Father, but instead maintained that reasonable efforts were not required. The Juvenile Court reserved its ruling on Father's motion.

On May 30, 2013, the Juvenile Court entered an order terminating the parental rights of Mother, Josh, and Father. Termination as to Mother and Josh was based on the ground of severe abuse. As to Father, the Juvenile Court held that DCS had proven the ground of abandonment by engaging in conduct prior to incarceration that exhibited wanton disregard for Kaliyah's welfare. Because it had proven that ground for termination, the Juvenile Court held that DCS was " therefore absolved of the requirement of making reasonable efforts" as to Father. The Juvenile Court also found that termination was in Kaliyah's best interest, so it granted DCS's petition to terminate Father's parental rights.

Father appealed the termination of his parental rights as to Kaliyah. Mother and Josh did not appeal.

Intermediate Appellate Court Decision

The Court of Appeals issued a divided decision reversing the Juvenile Court's termination

Page 539

of Father's parental rights. In re Kaliyah S., No. E2013-01352-COA-R3-PT, 2014 WL 819419 (Tenn. Ct. App. Feb. 28, 2014). The majority disagreed with the trial court's holding that proving the ground of abandonment absolved DCS of its duty to make reasonable efforts as to Father. Interpreting the aggravated-circumstances exception in Section 37-1-166(g)(4)(A), the majority held that DCS is not relieved of its duty to make reasonable efforts until after a court of competent jurisdiction has made an adjudication that the alleged aggravating circumstances exist, and not before. [WL] at *9 (citing In re B.L.C., No. M2007-01011-COA-R3-PT, 2007 WL 4322068, at *9 (Tenn. Ct. App. Dec. 6, 2007)). Consequently, the majority concluded that, until the time at which the Juvenile Court made an actual finding of aggravated circumstances with respect to Father, DCS was required to make reasonable efforts to assist Father. Because such reasonable efforts were not made, the majority reversed the termination of Father's parental rights. [WL] at *9-10.

In a dissenting opinion, Judge D. Michael Swiney expressed the view that, when aggravated circumstances are present, DCS is relieved of its duty to make reasonable efforts to reunify from the time the child is removed from the home. [WL] at *11 (Swiney, J., dissenting). The dissent reasoned that, under the statutory definition of aggravated circumstances, abandonment is treated the same as the other more severe aggravated circumstances. Id. (citing Section 36-1-102(9)). Under the majority's holding, the dissent argued, DCS would be required to make reasonable efforts at reunification pending a hearing even where more egregious aggravated circumstances were involved, such as where the parent had perpetrated severe sexual abuse or rape against the child. Interpreting Section 37-1-166(g)(4)(A), Judge Swiney argued that this result was not intended by the Tennessee Legislature and concluded that he would affirm the trial court's termination of Father's parental rights. Id.

Both the majority and dissent noted a split of authority within the Court of Appeals regarding the point at which DCS is relieved of its duty to make reasonable efforts when aggravated circumstances are involved. Based on this split, both viewed the instant case as appropriate for this Court's consideration. See id. at *9 (majority opinion); [WL] at *12 (Swiney, J., dissenting).

The State appealed the decision of the intermediate appellate court. We granted the State's application for permission to appeal.

Issue on Appeal

The issue as framed by the Court of Appeals presupposes that, in this proceeding to terminate Father's parental rights, DCS must prove that it made reasonable efforts as to Father unless and until a court of competent jurisdiction finds aggravated circumstances. The majority and dissent disagreed only on ...


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