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In re Eve C.

Court of Appeals of Tennessee, Nashville

April 29, 2015

IN RE EVE C.[1]

Assigned on Briefs February 09, 2015.

Appeal from the Juvenile Court for Rutherford County No. TC2340 Donna Scott Davenport, Judge

Carla Kent Ford, Murfreesboro, Tennessee, for the appellant, Jenine M. C.

Herbert H. Slatery, III, Attorney General and Reporter; and Mary Byrd Ferrara, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee Department of Children's Services.

Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P. J., M. S., and W. Neal McBrayer, J. joined.

OPINION

RICHARD H. DINKINS, JUDGE.

Eve C. was born in August, 2011 to Jenine M. C. ("Mother") and Fortunato C. ("Father"); she was born at Vanderbilt Medical Center with a heart condition that required open heart surgery shortly after birth and constant monitoring and care during her stay at Vanderbilt and following her release. Three other children of Mother and Father had been removed from the family home and were in the custody of the Department of Children's Services ("DCS") at the time of Eve's birth. The day after her birth DCS received a referral raising concerns regarding the ability of Mother and Father to care for Eve and subsequently initiated a proceeding in Rutherford County Juvenile Court to have her declared dependent and neglected due to her medically fragile condition and the inability of Mother and Father to care for her. On September 20 the court entered a Protective Custody Order giving DCS temporary custody of Eve, and on November 16 the court entered an order approving a permanency plan for the four children.[2] Additional permanency plans were prepared on April 13, 2012, September 24, 2012, January 22, 2013, and August 22, 2013; each plan was approved by the court.

The permanency plans required Mother and Father to participate in a parenting assessment; complete a psychological evaluation and follow recommendations; complete anger management sessions; attend the children's medical appointments; develop and demonstrate appropriate parenting skills; regularly visit the children; provide a safe, stable, and clean home; and demonstrate financial stability and maintain a budget. As respects Eve's special needs, the plans required Mother and Father to: demonstrate the skills needed to monitor, track, adjust and administer treatments and care for Eve and otherwise show that they could consistently meet her needs; take all opportunities offered and independently seek out ways to learn how to care for her; and keep a clean, neat home free from health hazards or health concerns.

On October 2, 2013, DCS filed a Petition for Termination of Parental Rights and for Order of Full Guardianship, seeking to terminate Mother and Father's parental rights to Eve on the grounds of substantial noncompliance with the permanency plans (Tenn. Code Ann. § 36-1-113(g)(2)) and persistence of conditions (Tenn. Code Ann. § 36-1-113(g)(3)). Guardians ad litem were appointed for Eve and for Mother, and CASA was appointed special advocate for Eve; counsel was appointed Mother and Father.

A trial was held before the Juvenile Court of Rutherford County on seven days between March 12 and April 15, 2014.[3] The court heard testimony from Charles H., Mother's paramour; Amanda G., Eve's physical therapist; Ashley P., Eve's occupational therapist; Trisha H., Eve's speech and feeding therapist; Meredith W., family services worker with DCS; Courtney H., an LPN; Ebony L., Eve's DCS case manager; Amanda P, Lisa S., Hillard H., and Lori T., employees of Kids First, an agency which provided various services to Mother and Father; Gwen L., the children's resource parent; Rick H., home care nurse; and Mother. On May 19 the court announced its ruling from the bench, and on June 20 entered an order terminating Mother's parental rights to Eve on the grounds of substantial non-compliance with the permanency plans and persistence of conditions; the court also found that termination of Mother's rights was in Eve's best interest.

Mother appeals the termination of her rights, contending that she did not receive necessary assistance from DCS to allow her to comply with the permanency plans.

I. STANDARD OF REVIEW

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 (1982)). Our termination statues 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., 2005 WL 1021618, at *7 (citing Tenn. Code Ann. § 36-1-113(g)). A party seeking to terminate the parental rights of a biological parent must prove at least one of the statutory grounds for termination. Tenn. Code Ann. § 36-1-113(g); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Secondly, the party must prove that termination of the parental rights of the biological parent is in the child's best interest. Tenn. Code Ann. § 36-1-113(c)(2).

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 766-69; In re M. W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Thus, both the grounds 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. In light of the heightened standard of proof in these cases, a reviewing court must adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. ...


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