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In re Alexis B.

Court of Appeals of Tennessee, Knoxville

April 14, 2015

In re ALEXIS B.

Assigned on Briefs January 16, 2015.

Appeal from the Probate and Family Court for Cumberland County No. 2013-PF-3498 Larry Michael Warner, Judge.

John R. Williams, Crossville, Tennessee, for the appellant, Katie R.

Jonathan R. Hamby, Crossville, Tennessee, for the appellees, Johnny B. and Deborah B. Sherrill Beard, Crossville, Tennessee, Guardian Ad Litem.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which Charles D. Susano, Jr., C.J., and D. Michael Swiney, J., joined.

OPINION

THOMAS R. FRIERSON, II, JUDGE

I. Factual and Procedural Background

Mother and Father were never married, but they resided together with the Child in the Grandparents' home following the Child's birth in April 2011. The relationship between Mother and Father subsequently disintegrated, and Mother moved out of the Grandparents' residence in November 2012 when the Child was nineteen months old. Mother does not dispute that she was addicted to controlled substances during the period that she resided with the Grandparents and that this problem contributed to the Grandparents' asking her to leave. It is also undisputed that the Grandparents were the Child's primary caregivers even when both parents resided in the Grandparents' home. When Mother relocated, the Child continued to reside with the Grandparents. Father also continued to live in the Grandparents' home.

The Grandparents filed a petition for termination of both parents' parental rights and for adoption of the Child on August 26, 2013. As to Mother, they alleged that in the four months preceding the filing of the petition, she had abandoned the Child by willfully failing to provide financial support and willfully failing to engage in more than token visitation with the Child.[1] Upon Mother's subsequent affidavit, the trial court found her to be indigent and appointed counsel to represent her on September 30, 2013.

On November 8, 2013, the Grandparents filed a motion to restrain Mother from exercising visitation, averring that Mother had not sought to exercise alternate-week visitation until she was served with the petition to terminate her parental rights. The Grandparents further averred that visitation with Mother was not in the Child's best interest, inter alia, because the Child no longer knew Mother and no bond had been established.

On November 1, 2013, the Grandparents filed a motion, inter alia, requesting that the trial court require Mother to undergo "hair follicle drug testing." In a response filed November 6, 2013, Mother agreed to submit to a drug screen. Mother alleged, however, that Father was abusing controlled substances in the Grandparents' home. She requested that the court order hair follicle drug screens to be performed on Father, both Grandparents, and the Child.

Mother filed an answer to the petition on November 22, 2013. Mother again alleged that Father was continuing to abuse controlled substances while residing in his parents' home. She also averred that the Grandparents had prevented her from exercising her visitation with the Child. Mother subsequently filed two separate motions to set visitation: the first on December 4, 2013, and the second on January 20, 2014, upon her assertion that she had tested negative for controlled substances after submitting to hair follicle drug screening.

The trial court conducted a hearing regarding the Grandparents' motion to restrain visitation on November 13, 2013, and subsequently held a bench hearing upon Mother's motion for hair follicle drug screens of the other parties on December 12, 2013. In an order entered January 22, 2014, the trial court suspended Mother's visitation with the Child and directed that Mother, Father, both Grandparents, and the Child would undergo hair follicle drug screens. Following a subsequent hearing conducted on February 6, 2014, the trial court found that it was in the Child's best interest to deny Mother's motion for visitation pending the outcome of the case. The court entered an order to this effect on February 18, 2014, and set the date for final hearing on the termination petition. The court also appointed attorney Sherrill Beard as guardian ad litem ("GAL") to represent the Child.

Following a trial conducted on March 31, 2014, the trial court entered an order on April 22, 2014, finding by clear and convincing evidence that Mother had abandoned the Child by willfully failing to support or make reasonable payments toward support of the Child and by willfully failing to visit the Child during the four months preceding the filing of the petition for termination. The court further found by clear and convincing evidence that it was in the best interest of the Child for Mother's parental rights to be terminated. Mother appealed the order to this Court on May 15, 2014.

At the beginning of trial, Father had announced through his counsel that he would be voluntarily surrendering his parental rights to the Child. For this reason, the court heard evidence only as to the petition to terminate Mother's parental rights. After Mother filed her notice of appeal, this Court entered an order on July 8, 2014, directing Mother to show cause why the appeal should not be dismissed as premature due to the outstanding issue of Father's parental rights. The trial court subsequently entered an order on August 22, 2014, terminating Father's parental rights to the Child upon his voluntary surrender of those rights and certifying the August 2014 order as final pursuant to Tennessee Rule of Civil Procedure 54.02. This Court thereafter treated Mother's appeal as timely pursuant to Tennessee Rule of Appellate Procedure 4(d).

II. Issues Presented

Mother presents four issues on appeal, which we have restated slightly:

1. Whether the constitutional requirements applicable to an action for termination of parental rights can be achieved without a substantially verbatim transcript or otherwise sufficiently complete record upon which an appeal can be based and reviewed.
2. Whether the trial court erred by finding that there was clear and convincing evidence of the statutory ground of abandonment by willful failure to support the Child.
3. Whether the trial court erred by finding that there was clear and convincing evidence of the statutory ground of abandonment by willful failure to visit the Child.
4. Whether the trial court erred by finding clear and convincing evidence that termination of Mother's parental rights was in the Child's best interest.

III. Standard of Review

In a termination of parental rights case, 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 evidence preponderates against those findings. Id.; Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no presumption of correctness. In re Bernard T., 319 S.W.3d 586, 597 (Tenn. 2010). The trial court's determinations regarding witness credibility are entitled to great weight on appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

"Parents have a fundamental constitutional interest in the care and custody of their children under both the United States and Tennessee constitutions." Keisling v. Keisling, 92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that "this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). As our Supreme Court has instructed:

In light of the constitutional dimension of the rights at stake in a termination proceeding under Tenn. Code Ann. § 36-1-113, the persons seeking to terminate these rights must prove all the elements of their case by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). The purpose of this heightened burden of proof is to minimize the possibility of erroneous decisions that result in an unwarranted termination of or interference with these rights. In re Tiffany B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005). Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005), and eliminates any serious or substantial doubt about the correctness of these factual findings. In re Valentine, 79 S.W.3d at 546; State, Dep't of Children's Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447 (Tenn. Ct. App. 2008).

In re Bernard T., 319 S.W.3d at 596.

IV. Sufficiency of the Record on Appeal

Mother contends that the record on appeal is insufficient for appellate review primarily because the record contains no verbatim transcript of the final hearing. The record does contain a five-page statement of the evidence, which was approved by the trial court on June 26, 2014, pursuant to Tennessee Rule of Appellate Procedure 24(c), (e). Mother argues that this statement of the evidence is an insufficient record of the testimony presented at trial. The Grandparents assert that the statement of the evidence is a complete record of the testimony presented at trial and that, coupled with the trial court's specific findings of fact and conclusions of law, the evidence in the record is sufficient for appellate review. As Mother notes, this Court has explained that "a parental rights termination case where a Statement of the Evidence would be sufficient would be extremely rare . . . ." See L.D.N. v. R.B.W., No. E2005-02057-COA-R3-PT, 2006 WL 369275 at *5 (Tenn. Ct. App. Feb. 17, 2006). However, having carefully reviewed the record, we determine that the case at bar constitutes such a "rare occasion" in which the evidentiary record is sufficiently complete for appellate review in a parental rights termination case despite the absence of a verbatim transcript. See, e.g., In re Austin C., No. M2013-02147-COA-R3-PT, 2014 WL 4261178 at *6 (Tenn. Ct. App. Aug. 27, 2014) (affirming the termination of the mother's parental rights following review of an evidentiary record comprised in part of a statement of the evidence).

It is well settled that "in cases involving the termination of parental rights, a record of the proceeding of sufficient completeness to permit proper appellate consideration of the parent's claims must be made in order to preserve that parent's right to an effective appeal." In re Adoption of J.D.W., No. M2000-00151-COA-R3-CV, 2000 WL 1156628 at *4 (Tenn. Ct. App. Aug. 16, 2000). As this Court explained in In re Adoption of J.D.W., the United States Supreme Court has held that "a parent's interest in defending against a state's action in terminating parental rights require[s] a record complete enough to allow fair appellate consideration of the parent's claims." Id. at *3 (citing M.L.B. v. S.L.J., 519 U.S. 102, 121-22 (1996)). If the trial court has determined that the parent is indigent, the court must "ensure there is a record of trial evidence that is sufficiently complete to allow an appellate court to review the evidence in accordance with applicable standards, even when the petition to terminate parental rights is filed by a private party." In re Austin C., 2014 WL 4261178 at *4 (quoting In re Adoption of J.D.W., 2000 WL 1156628 at *4 n.5); see also M.L.B., 519 U.S. 102, 116 n.8 (1996) (explaining that state action is invoked when a private party asks the state to terminate a parental relationship).

Regarding whether an appellate record missing a verbatim transcript of the termination proceeding may constitute a record sufficiently complete for appellate consideration, this Court has recently explained:

[W]e noted in L.D.N. that "a parental rights termination case where a Statement of the Evidence would be sufficient would be extremely rare." L.D.N. v. R.B.W., 2006 WL 369275, at *5. However, no Tennessee court has held that an evidentiary record that is based solely on a statement of the evidence would automatically constitute an insufficient record. Id. More specific to the evidence in this record, our courts have not held that an evidentiary record that is based, in part, on a statement of the evidence is automatically insufficient. To the contrary, our courts have "stopped just short of holding that a Statement of the Evidence never will be sufficient for proper appellate review in a parental rights termination case and that a transcript always must be provided." Id. Nevertheless, the best way to proceed in a termination of parental rights case is by providing the appellate court with a complete transcript of all evidence. Id.
What is required in appeals of parental termination cases is an evidentiary record of sufficient completeness to permit proper appellate review of the parent's claims. See In re J.M.C.H., 2002 WL 31662347, at *4; see ...

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