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In re Destaney D.

Court of Appeals of Tennessee, Knoxville

June 23, 2015

In re DESTANEY D. et al.

May 14, 2015 Session

Appeal from the Juvenile Court for Rhea County No. 11-JV-39 James W. McKenzie, Judge

Larry G. Roddy, Dayton, Tennessee, for the appellant, William D.

Randy Sellers, Cleveland, Tennessee, for the appellees, Amy M. and Jeremy M.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney and John W. McClarty, JJ., joined.

OPINION

THOMAS R. FRIERSON, II, JUDGE

I. Factual and Procedural Background

William D. ("Father”) is the biological father of two children: Destaney D., now age fourteen, and Rebekah D., now age twelve. In April 2012, while the Children were in the legal custody of their mother, DCS received a referral regarding allegations of drug abuse by the mother. Upon investigation, those allegations were sustained. The Children's mother had also been arrested, apparently leaving the Children with no caretaker. As a result, the Children had been residing with the Petitioners, with whom the Children had become acquainted at church.

Upon learning of DCS's involvement with the Children, Father and Laura D., Father's current wife, picked up the Children from school and transported them to the home that Father and Laura D. shared. Because the DCS caseworker had received information that Father might also be involved with drugs, she visited Father's home and sought drug tests from both Father and Laura D. Father admitted to the caseworker that he had been receiving unprescribed hydrocodone from a co-worker on a regular basis for approximately one year. Father claimed that he was taking the hydrocodone to treat back pain. In turn, the caseworker performed a drug screen, which confirmed that opiates existed in Father's system. In addition, Laura D. submitted to a drug screen and tested positive for amphetamines, opiates, methadone, propoxyphene, and marijuana. Consequently, DCS returned the Children to the Petitioners' home. An immediate protection agreement was entered on April 16, 2012, wherein the parents consented to allow the Children to remain in the custody of the Petitioners until the parents could complete the requirements of their permanency plans.

Over the course of the next two years, the Children resided with the Petitioners and participated in some co-parenting time with Father. Father acknowledged at trial that he was employed throughout most of this time period and had been ordered to pay child support of fifty dollars per week directly to the Petitioners. During a hearing held in June 2013, Destaney testified, inter alia, that she had witnessed the presence of drugs inside Father's home. At the conclusion of the June 2013 hearing, the trial court ordered Father to submit to a drug and alcohol assessment within fifteen days. The court also ordered Father to submit to a weekly drug screen at the DCS office.

The Petitioners filed their termination of parental rights petition on February 21, 2014. The Petitioners alleged that Father had abandoned the Children by willfully failing to support them for more than four months preceding the date of the filing of the petition. In their amended petition, filed on March 4, 2014, the Petitioners alleged the additional statutory ground of persistence of conditions leading to removal of the Children. Following a bench trial conducted on July 9, 2014, the court terminated the parental rights of Father based on abandonment for failure to support and persistence of conditions. Father has appealed.

II. Issues Presented

Father presents the following issues for our review, which we have restated slightly:

1. Whether DCS made reasonable efforts to reunite the Children with Father.
2. Whether the trial court erred in terminating the parental rights of Father based on abandonment for failure to support.
3. Whether the trial court erred in terminating the parental rights of Father based on persistence of conditions leading to the Children's removal.
4. Whether the termination of Father's parental rights is in the best interest of the Children.

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. Tenn. R. App. P. 13(d); In re F.R.R., III, 193 S.W.3d at 530. 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. Reasonable Efforts Toward Reunification

Father asserts that the Petitioners failed to demonstrate that DCS had expended reasonable efforts to reunite him with the Children. As our Supreme Court has recently elucidated, however:

[I]n a termination proceeding, the extent of DCS's efforts to reunify the family is weighed in the court's best-interest analysis, but proof of reasonable efforts is not a precondition to termination of the parental rights of the respondent parent. As with other factual findings made in connection with the best-interest analysis, reasonable efforts must be proven by a preponderance of the evidence, not by clear and convincing evidence. In re Audrey S., 182 S.W.3d at 861. After making the underlying factual findings, the trial court should then consider the combined weight of those facts to determine whether they amount to clear and convincing evidence that termination is in the child's best interest. See In re Adoption of Kleshinski, No. M2004-00986-COA-R3-CV, 2005 WL 1046796, at *17 (Tenn. Ct. App. May 4, ...

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