Session Date December 02, 2014
Appeal from the Juvenile Court for Rutherford County No. TC2023T Donna Scott Davenport, Judge
Brandon M. Booten, Murfreesboro, Tennessee, for the appellant, Delton C.
Robert Cooper, Jr. Attorney General and Reporter; and Rebekah A. Baker, Senior Counsel, for the appellee, State of Tennessee, Department of Children's Services.
Sally Schneider, Murfreesboro, Tennessee, Guardian Ad Litem.
Kenny Armstrong, J. delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.
KENNY ARMSTRONG JUDGE
The child at issue in this case, Robert C.,  was born in February, 2012, to Shannon M., ("Mother"), and Delton C. ("Father" or "Appellant"). Mother surrendered her parental rights and is not a party to this appeal. At the time of his birth, Robert C. was drug-exposed and medically fragile. He was diagnosed with Hypoplastic Heart Syndrome and remained hospitalized for several weeks following delivery. He has required multiple surgeries as well as ongoing feeding, speech, and occupational therapies.
On March 23, 2012, the Tennessee Department of Children's Services ("DCS" or "Appellee") received a referral from the hospital. The referral was based on the fact that the parents' whereabouts were unknown, and hospital staff believed that they had left the state and abandoned the child. On April 4, 2012, DCS filed a dependency and neglect petition and requested an emergency protective custody order. A protective custody order was entered on April 4, 2012, finding Robert C. dependent and neglected pursuant to statute based on probable cause that Robert C.'s health and safety was in immediate danger and delay was likely to result in severe or irreparable harm. This finding was based on the abandonment of the drug-exposed medically fragile infant by the parents when they went to Florida without informing the hospital of their whereabouts and leaving no guardian for the child. Over the ensuing months, both the maternal and paternal grandmothers filed intervening petitions for custody, which were eventually denied. On August 27, 2013, DCS filed a petition to terminate Father's parental rights to Robert C. This petition to terminate parental rights was heard over two days in February 2014.
The evidence at trial reflects that the child has never lived with Father, and that Father has been incarcerated for most of the child's life. Specifically, Father was arrested and incarcerated from May 2012 to June 2012 for violation of probation; he was incarcerated again from October 2012 through December 2012 for another probation violation. Father's original charge of reckless aggravated assault occurred before the child's birth. In March 2013, Father was again incarcerated for the sale of a counterfeit controlled substance. He was still incarcerated at the time of the trial of this matter in February 2014. Father testified that he could be released as early as 90 days from the trial date; however, if he serves his full sentence, he will not be released until June 3, 2016.
Father testified that upon his release from prison, he plans to live with his aunt, and that he has a job opportunity. He further testified that he has stopped smoking, that he has no plans to violate his probation or be incarcerated again, that he is committed to learning about the child's medical needs, and that he will take Robert C. to all necessary medical appointments.
Despite the fact that Father had some seasonal employment when he was not incarcerated, the record shows that he has never provided any child support for Robert C. Likewise, the record reveals that Father has not made any effort to visit the child on any regular basis, even during those periods when he has not been incarcerated. In the twenty-two (22) months since the child came into DCS custody, Father has visited only a few times. Typically, supervised visitation was scheduled at the hospital or concurrent with the child's medical appointments in order for the father to become familiar with the child's medical needs. Although the operative permanency plan allotted Father a minimum of four hours of visitation per month, Father was incarcerated the majority of the time and was, therefore, unable to exercise even this minimal amount of visitation.
The child's foster mother, Tanasi O. (Ms. O.), a speech pathologist, first met Robert C. in May 2012 when he was just three months old. At that time, he was in the home of another foster family, and Ms. O. was visiting the home providing therapy to another child in the home. Although not specifically assigned to provide therapy to Robert C., Ms. O began sharing tips with Robert C.'s foster family to help with the child's feeding. Robert C. was eventually assigned to Ms. O's caseload. She and her husband developed a bond with the child and sought to become his foster parents with the ultimate hope of adopting him. Ms. O testified that since Robert C. came into their home in 2013, she and her husband have developed a parent-child relationship with him. She testified that she has been working with the child on his occupational, physical, and speech therapy needs, and he is thriving.
By order of March 10, 2014, the trial court terminated Father's parental rights on grounds of (1) abandonment; (2) substantial non-compliance with the permanency plan; and (3) persistence of conditions, and upon its finding that termination of Father's parental rights was in the child's best interest. Father appeals.
Father raises only one issue for review as restated from his brief:
Whether the trial court erred in determining that clear and convincing evidence exists such that termination of the Father's parental rights is in the best interest of the child?
Father has only raised the question of best interest, however, we cannot reach that issue without first determining whether at least one ground for termination is proved by clear and convincing evidence. Pursuant to section 36-1-113(c), "[t]ermination of parental or guardianship rights must be based 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) that termination of the parents or guardian's rights is in the best interest of the child." Although only one ground for termination of parental rights must be met, the Tennessee Supreme Court has directed this Court to review the findings of fact and conclusions of law as to each of the trial court's grounds for termination in order to avoid unnecessary remand. See In re Angela E., 303 S.W.3d 240, 251 n. 14 (Tenn. 2010). Therefore, we will consider each of the grounds for termination before addressing whether the evidence clearly and convincingly supports the trial court's finding that termination of Father's parental rights is in the best interest of the child.
III. Standard of Review
Under both the United States and Tennessee Constitutions, 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, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Our termination statutes 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., Nos. M2004–00999–COA–R3–PT, M2004–01572–COA–R3–PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36–1– 113(g)). A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child's best interest. Tenn.Code Ann. § 36–1–113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
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 769. Consequently, both the ground(s) for termination and the best interest inquiry must be established by clear and convincing evidence. Tenn. Code Ann. § 36–3– 113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "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 M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id. at 653.
In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review as set forth in Tennessee Rule of Appellate Procedure 13(d). As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). 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. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Furthermore, when the resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge, who has had the opportunity to observe the witnesses and their manner and demeanor while testifying, is in a far better position than this Court to decide those issues. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and credit to be given to any witness's testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court. See id.; see also Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997). Accordingly, appellate courts will not re-evaluate a trial judge's assessment of witness credibility absent clear and convincing evidence to the contrary. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315–16 (Tenn. 1987); Bingham v. Dyersburg Fabrics Co., Inc., 567 S.W.2d 169, 170 (Tenn. 1978); Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
IV. Grounds for Termination of Father's Parental Rights
As noted earlier, the trial court relied on three of the statutory grounds in terminating Father's parental rights: (1) abandonment; (2) substantial noncompliance with the permanency plan; and (3) persistence of conditions. See Tenn.Code Ann. § 36–1–113(g)(1), (2), (3). We will review each of these grounds.
A. Abandonment by Wanton Disregard
Tennessee Code Annotated Section 36-1-113(g)(1) provides that termination of parental rights may be based upon the ground of "[a]bandonment by the parent or guardian, as defined in § 36-1-102...." Tennessee Code Annotated Section 36-1-102(1)(A)(iv) defines abandonment, in relevant part, as follows:
(iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's ...