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In re Jayden B.T

Court of Appeals of Tennessee, Knoxville

June 23, 2015

In re JAYDEN B.T.

Session April 13, 2015.

Appeal from the Juvenile Court for Roane County No. 2013-JC-200 Dennis W. Humphrey, Judge.

This is a termination of parental rights case, focusing on Jayden B.T., the minor child (“the Child”) of Jayson T. (“Father”) and Britney B. (“Mother”). On July 2, 2013, the Child's maternal aunt and her husband, with whom the Child had been residing, filed petition to terminate the parental rights of both parents. Following a bench trial, the trial court found that grounds existed to terminate the parental rights of both parents upon its finding, by clear and convincing evidence, that the parents had abandoned the Child by willfully failing to visit the Child, willfully failing to support the Child, and failing to provide a suitable home. The trial court also found clear and convincing evidence as to both parents of the statutory ground of persistence of the conditions that led to removal of the Child. The court further found, by clear and convincing evidence, that termination of Father's and Mother's parental rights was in the Child's best interest. Father has appealed.[1] We conclude that the evidence was insufficient to support a finding that Father abandoned the Child through failing to visit him and therefore reverse the trial court's finding as to that ground. In addition, we determine that the statutory grounds of persistence of the conditions leading to removal and abandonment through failure to provide a suitable home are not applicable to Father, and we therefore reverse the trial court's findings regarding those two grounds. We affirm the trial court's judgment in all other respects, including the termination of Father's parental rights upon the ground of abandonment through willful failure to support the Child.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part, Reversed in Part; Case Remanded

Cashauna Lattimore, Knoxville, Tennessee, for the appellant, Jayson T.

Browder G. Williams and Julianna J. Loden, Kingston, Tennessee, for the appellees, Cassie L. and James L.

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

OPINION

I. Factual and Procedural Background

THOMAS R. FRIERSON, II, JUDGE.

Father and Mother were never married. The Child, a son, was born to them in August 2011. Following the Child's birth, he resided for five months with both parents and the maternal grandmother at the maternal grandmother's home in Kingston. The maternal grandmother testified at trial that both Father and Mother provided care to the Child during those early months of the Child's life. She acknowledged, however, that she and both parents were "doing drugs" during the time that they lived with her.

When the Child was approximately five months old, he and both parents left the maternal grandmother's home and moved in with Father's grandparents, the Child's paternal great-grandparents, at their home in Harriman. The parents subsequently relocated with the Child to reside with Father's parents, the Child's paternal grandparents, also in Harriman.

In July 2012 when the Child was eleven months old, Mother and Father separated, apparently ending their relationship. Mother and the Child moved in with the Petitioners, Mother's aunt, Cassie L., and her husband, James L. According to Cassie L.'s and the maternal great-grandmother's respective testimonies, Cassie L. had cared for the Child at her home on Sunday night through Monday afternoon nearly every week from the Child's birth through the time that Mother and the Child moved in with the Petitioners. In September 2012, Mother vacated the Petitioners' home without explanation for several days, leaving the Child with the Petitioners. Although Mother subsequently reappeared, Cassie L. filed a petition for temporary emergency custody of the Child, which the trial court granted in an order entered on October 31, 2012. Cassie L. was in communication with Father a few days after entry of the emergency custody order. She testified at trial that Father told her on November 5, 2012, that he was glad the Petitioners "got custody" of the Child.

Upon entry of the October 31, 2012 order, the trial court directed the parties to mediation, but mediation never occurred due to, inter alia, both parents' respective periods of incarceration. During a hearing conducted on April 10, 2013, the parents stipulated that the Child was dependent and neglected while in their care. One year later on April 29, 2014, the trial court entered an agreed order adjudicating the Child dependent and neglected as to Father and Mother. The court concomitantly preserved custodial care of the Child with the Petitioners.[2]

On July 2, 2013, the Petitioners filed a petition to terminate both parents' rights to the Child. As relevant to Father's appeal, the Petitioners alleged grounds of "abandonment as defined by T.C.A. §36-1-113(g)(1) and as defined by T.C.A. §36-1-102, " as well as the statutory ground of persistence of conditions leading to removal of the Child from a parent's home, pursuant to Tennessee Code Annotated § 36-1-113(g)(3). The Petitioners also averred that Father was incarcerated in the Roane County Jail at the time of the petition's filing. Upon consideration of the Petitioners' request, the trial court appointed attorney Katherine Parks as guardian ad litem to represent the Child in an order entered July 2, 2013. Father filed an answer to the petition on July 31, 2013.

It is undisputed that Father was incarcerated during much of the Child's life prior to the filing of the termination petition. According to Father's testimony, the following is a delineated timeline of his relevant incarceraton episodes and other whereabouts:

• November 13, 2012: Father was arrested and charged with violation of probation after undergoing a drug screen and testing positive for cocaine, marijuana, and oxycodone. He was incarcerated in the Roane County Jail for seventy-eight days through approximately the end of January 2013.
• On or about January 31, 2013: Father was transferred into the custody of Knox County to face a felony charge of theft of property.
• February 2013 through June 18, 2013: Father resided in Roane County. For two and one-half weeks in March 2013, he was employed at a restaurant in Harriman.
• June 19, 2013: Father was arrested in Roane County on a Knox County warrant for violation of probation after he submitted to a drug screen and tested positive for cocaine and oxycodone. He then served a six-month sentence, effectively 155 days, in the Roane County Jail through November 21, 2013.
• November 21, 2013: Father was transferred to the Knox County Jail to serve two days for failing to appear in court.
• Father was released on or about November 23, 2013, and at the time of trial, was on unsupervised probation in Knox County. He had completed his probation requirements for charges incurred in Roane County.

Father testified that at the time of trial, he was residing with his mother at her home in Harriman. He acknowledged that he sometimes stayed overnight with his girlfriend, B.H., who lived in a housing project in Lenoir City, but he denied residing with B.H. Father was unemployed. He did not own a vehicle or possess a valid driver's license. He testified that he had been interviewing for potential employment and had secured a position with "Access" in Knoxville. He stated that he could not begin this new position until January 2014 and that in the meantime, he had a "second interview" scheduled with a fast-food restaurant in Lenoir City.

Following a bench trial conducted on December 19, 2013, the trial court entered a final judgment on January 31, 2014, terminating the parental rights of both parents to the Child. Father timely appealed. This Court subsequently entered an order directing the trial court to enter an amended final judgment making specific findings of fact and conclusions of law pursuant to Tennessee Code Annotated § 36-1-113(k). Complying with this order, the trial court entered specific findings of fact and conclusions of law on September 4, 2014.

As to Father, the trial court found by clear and convincing evidence that Father had abandoned the Child by willfully failing to visit him, willfully failing to support him or make reasonable payments toward support, and failing to provide a suitable home. The trial court also found by clear and convincing evidence that conditions leading to the Child's removal from Father's home persisted, preventing the return of the Child to Father. The court further found by clear and convincing evidence that termination of Father's parental rights was in the Child's best interest. The court also noted that the Petitioners had expressed their intention to adopt the Child.

II. Issues Presented

Father presents five issues on appeal, which we have restated slightly as follows:

1. 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.
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 visit the Child.
3. Whether the trial court erred by finding that there was clear and convincing evidence of the statutory ground of abandonment through failure to provide a suitable home for the Child.
4. Whether the trial court erred by finding that there was clear and convincing evidence of the statutory ground of persistence of the conditions leading to removal of the Child from Father's home.
5. Whether the trial court erred by finding clear and convincing evidence that termination of Father'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. 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 ...

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