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In re K.M.K.

Court of Appeals of Tennessee, Knoxville

February 27, 2015

In re K.M.K. et al.

Session September 30, 2014

Appeal from the Juvenile Court for Bradley County No. J-11-120 Daniel R. Swafford, Judge

K.M.K. (Father) appeals the trial court's judgment terminating his parental rights to his son, K.M.K., and his daughter, K.M.K. (collectively, the Children). The petitioner, Department of Children's Services (DCS), removed the Children from their mother's home after it found them living in unsafe and unsanitary conditions. They were placed in foster care and subsequently adjudicated dependent and neglected. Nine months later, DCS filed a petition to terminate the parental rights of both parents.[1] The trial court terminated Father's rights based upon findings of (1) abandonment, (2) substantial noncompliance with a permanency plan, and (3) persistence of conditions. The trial court also determined that termination is in the best interest of the Children. Father appeals. We affirm the judgment of the trial court as modified in this opinion. Those modifications do not affect the trial court's decision to terminate Father's parental rights, which ultimate decision we affirm.

Barrett T. Painter, Cleveland, Tennessee, for the appellant, K.M.K.

Robert E. Cooper, Jr., Attorney General and Reporter, and Ryan L. McGehee, Assistant Attorney General, Office of the Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

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

OPINION

CHARLES D. SUSANO, JR., CHIEF JUDGE

I.

On February 11, 2011, DCS responded to a referral that alleged Children were living in unsafe and unsanitary conditions. Agents of DCS visited Mother's home where the Children were residing. Apparently, Father was not then living in the home. The parents had been living separate and apart since the fall of 2010. Their son was then two years and four months old, and their daughter was one year and three months. DCS discovered that the Children were living in an extremely dirty environment. There were large piles of clothing strewn about; several liquor bottles throughout the house, some of which were within reach of the children; bugs flying around the house; fleas jumping off the carpet; and a dog in the home. The smell of urine in the bedroom where Mother, her boyfriend, and the Children slept was "incredibly strong." There was little food in the house. DCS contacted Father. It determined that the Children could not be placed with him due to his admitted marijuana use, his statement that he was currently unable to care for them, and his belief that he had outstanding criminal warrants in states outside Tennessee. After a temporary, unsuccessful placement with the Children's grandparents, they were taken into DCS's custody on March 1, 2011.

A permanency plan was drafted on March 23, 2011. Father received and signed a copy of the plan on April 21, 2011. Previously, on April 7, 2011, DCS requested and obtained a no-contact order prohibiting Father's contact with the Children pending his resolution of any outstanding criminal warrants. Father later discovered that he had been mistaken and that there were no outstanding warrants. After Father provided DCS with evidence that he had no outstanding warrants, the no-contact order was lifted on May 18, 2011. Father then began supervised visitation with the Children.

Beginning on April 21, 2011, the Children were returned to Mother for a trial home visit. DCS's subsequent visits revealed, however, similar environmental neglect resulting from unsafe and unsanitary conditions in the home. The trial home visit with Mother ended May 17, 2011, the day before Father's no-contact order was lifted. DCS provided Father with a document setting forth and explaining the criteria, including the statutory grounds, and procedures for termination of parental rights. On April 25, 2011, Father signed the document, stating that he had "received a copy of Criteria & Procedures for Termination of Parental Rights and have been given an explanation of its contents."

After an adjudicatory hearing, the trial court entered an order on October 31, 2011, adjudicating the Children dependent and neglected. The only findings pertaining to Father in the order are as follows:

The children's biological father . . . was considered as a placement option but was deemed inappropriate due to his admitted drug use.
Despite the efforts of Case Manager Crook to persuade the father otherwise, he has adamantly refused to give up marijuana. The father has informed Case Manager Crook that he could take one of the children, but not both.

On December 1, 2011, the trial court ordered Father to pay child support of $215 per month per child. Father made sporadic payments thereafter, but never made a full payment in any month before the date of the final termination hearing. The Children's foster care worker, Blaze Crook, testified that he attended a permanency hearing on April 26, 2012, at which Father testified. Crook stated that, at that hearing, Father said that the Children were "better off with the State, where they were, " and that Father "didn't have any intention[] of completing" the requirements of the permanency plan. There is no transcript of this hearing in the record. Father was not questioned about these alleged statements at the termination hearing.

On July 24, 2012, DCS filed a petition to terminate parental rights. For grounds, DCS alleged: (1) abandonment by willful failure to visit;[2] (2) abandonment by willful failure to support;[3] (3) abandonment by failure to provide a suitable home;[4] (4) substantial noncompliance with the permanency plan;[5] and (5) persistence of conditions.[6] On April 1, 2013, DCS presented its evidence. On the second day of trial, August 19, 2013, Father presented his evidence. On October 30, 2013, the trial court entered an order finding that DCS had established, by clear and convincing evidence, all of the alleged grounds for termination except abandonment by failure to visit.[7] The trial court further found that termination was in the Children's best interest, and consequently terminated Father's parental rights. Father timely filed a notice of appeal.

II.

Father raises the following issues:

1. Whether the trial court erred in concluding that Father had abandoned the Children by failing to support them.
2. Whether the trial court erred in finding that Father had abandoned the Children by failing to provide a suitable home.
3. Whether the trial court erred in finding that Father was in substantial noncompliance with the permanency plan.
4. Whether the trial court erred in finding that, pertaining to Father, persistence of conditions existed that in all probability would cause the Children to be subjected to further abuse or neglect.
5. Whether the trial court erred in finding that termination of Father's parental rights was in the best interest of the Children.

III.

With respect to parental termination cases, this Court has observed:

It is well established that parents have a fundamental right to the care, custody, and control of their children. While parental rights are superior to the claims of other persons and the government, they are not absolute, and they may be terminated upon appropriate statutory grounds. 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." Both of these elements must be established by clear and convincing evidence. Evidence satisfying the clear and convincing evidence standard 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 Angelica S., E2011–00517–COA–R3–PT, 2011 WL 4553233 at *11–12 (Tenn. Ct. App. E.S., filed Oct. 4, 2011) (citations omitted).

On our review, this Court has a duty to determine "whether the trial court's findings, made under a clear and convincing standard, are supported by a preponderance of the evidence." In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial court's findings of fact are reviewed de novo upon the record accompanied by a presumption of correctness unless the preponderance of the evidence is against those findings. Id.; Tenn. R. App. P. 13(d). Great weight is accorded the trial court's judgment of witness credibility, which determinations will not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Questions of law are reviewed de novo with no presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741 (Tenn. 2002). We proceed mindful that only a single statutory ground must be clearly and convincingly established in order to justify a basis for termination. In re Audrey S., 182 S.W.3d 838, 862 (Tenn. Ct. App. 2005).

IV.

A.

Father argues that the trial court erred in finding that he abandoned the Children by failing to support them. As pertinent to this statutory ground, the ...


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