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In re Kayden H.

Court of Appeals of Tennessee, Knoxville

June 23, 2015

In re KAYDEN H.

Assigned on Briefs April 30, 2015

Appeal from the Circuit Court for Blount County No. E-25400 Tammy M. Harrington, Judge.

Gina M. Jenkins, Maryville, Tennessee, for the appellant, Kristy L.

Lance A. Evans, Maryville, Tennessee, for the appellees, Linda H. and Donald H.

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. The Child, a daughter, was born to them in April 2006. According to Mother's testimony at trial, Mother, Father, and the Child resided together in a home owned by Father's grandmother, the Child's paternal great-grandmother, until early 2011. During the years that the parents resided together, Grandparents paid expenses related to the home. At some point prior to March 2011, Mother and Father separated. Mother and the Child then resided with the maternal grandmother.

In March 2011, the Department of Children's Services ("DCS") removed the Child from Mother's home and obtained a protective custody order from the Blount County Juvenile Court. As Mother acknowledged at trial, DCS removed the Child due to Mother's substance abuse. DCS placed the Child with Grandparents, with whom she resided continuously from March 2011 through trial in the instant action. During dependency and neglect proceedings in the Juvenile Court, Mother and Father respectively waived their rights to an adjudicatory hearing. Mother and Father stipulated to allegations contained in the dependency and neglect petition previously filed by DCS, specifically that the parents had both abused controlled substances and that Father had abandoned the Child. In an order entered October 17, 2011, the Juvenile Court adjudicated the Child dependent and neglected as to both Mother and Father.[1] The Juvenile Court placed legal and physical custody of the Child with Grandparents and ordered that each parent be permitted at least two hours per week of supervised visitation and two fifteen-minute telephone calls per week with the Child. DCS relinquished temporary custody of the Child, and the Juvenile Court closed the dependency and neglect proceedings with entry of the adjudicatory order.

On January 28, 2014, Grandparents filed a petition to terminate Mother's parental rights and adopt the Child. Father joined in the action as a co-petitioner in order to consent to the termination of his parental rights. As relevant to Mother's appeal, Grandparents alleged grounds of abandonment through willful failure to visit, willful failure to support, and Mother's conduct prior to her incarceration exhibiting wanton disregard for the Child's welfare. See Tenn. Code Ann. §§ 36-1-113(g)(1) (2014); 36-1-102(1)(A) (2014).

Since the Child's birth in 2006 and subsequently as the Child was in Grandparents' care, Mother had faced several criminal charges and periods of incarceration or probation. According to Mother's testimony and certified copies of criminal warrants and judgments presented by Grandparents and admitted into evidence by the trial court, the following is a delineated timeline of Mother's relevant criminal history, incidents, and incarceration:

• July 17, 2008: Mother pled guilty in Blount County General Sessions Court to a traffic violation and a charge of driving with a license that had been revoked due to a previous conviction of driving under the influence of a controlled substance. Mother was sentenced to two days of time served in incarceration, six months of supervised probation, and a $50 fine.
• August 23, 2011: Mother pled guilty in Blount County General Sessions Court to charges of driving under the influence of a controlled substance and violation of the implied consent law. According to the arresting officer's affidavit, he had found Mother intoxicated and in a parked car with the engine running. Mother pled guilty and was sentenced to supervised probation.
• October 9, 2011, through November 25, 2011: Mother was incarcerated in the Sevier County Jail. Mother pled guilty in the Sevier County General Sessions Court on November 18, 2011, to violation of probation. According to the warrant issued against her and her testimony at trial in the instant action, she incurred new criminal charges in October 2011 of manufacturing methamphetamine, possession of a Schedule II controlled substance, and possession of a Schedule IV controlled substance. The criminal court found Mother in violation of probation, reinstated her probation for eleven months and twenty-nine days, and ordered her to participate in a residential treatment program.
• October 2, 2012, through December 12, 2012: Mother was incarcerated in the Sevier County Jail. Mother was convicted on November 26, 2012, on the above-listed charges incurred in October 2011, including one count of manufacturing methamphetamine, one count of possession of a Schedule IV controlled substance, and two counts of possession of a Schedule II controlled substance. Mother incurred an effective sentence of three years of incarceration as a range one offender at thirty percent, with the balance to be served on supervised probation, and $3, 500 in fines.
• Mother was incarcerated from September 22, 2013, through December 17, 2013, in the Sevier County Jail. Mother was convicted on December 10, 2013, of violation of probation. In the resultant order, the criminal court directed that Mother "do long term inpatient treatment" and be "transported to Center of Hope by Sevier County Sheriffs Dept."
• December 17, 2013, through trial on October 27-28, 2014: Mother participated in court-ordered residential treatment at the Center of Hope, with a projected graduation date of December 17, 2014.

In their petition to terminate Mother's parental rights, Grandparents stated that Mother was residing at the Center of Hope ("the Center") at the time of the petition's filing. At trial, the Center's former program director, Barbara Ellison, and current program director, Tanna Leatherman, testified on behalf of Mother. Ms. Ellison explained that the Center is a "12- to 18-month faith-based recovery program for women." According to Ms. Ellison, Center residents complete a twenty-eight day orientation and four consecutive phases within the program. During orientation, residents are not allowed off the Center campus, may not visit the Center's store, and are not allowed to use the phone. Residents then progress through the following four phases: (1) a six-week phase during which residents are not allowed off the Center campus but are allowed to use a telephone for ten minutes five nights a week; (2) a fourteen-week phase in which residents begin mandatory employment in the Center's thrift store and are allowed one forty-eight hour pass to leave campus once a month; (3) a third phase in which residents continue their work at the store and are allowed to leave on Sundays for two and one-half hours after church; and (4) the final phase in which residents continue their work at the store and are allowed to leave in the evenings and request a pass to leave each weekend. Ms. Elliott explained that each time a resident leaves the Center campus, she must submit to a drug screen upon her return. In addition, Ms. Leatherman testified that the Center has a "zero-tolerance policy" for substance abuse, meaning that if a resident fails a drug screen, she is required to leave the program. Ms. Ellison stated that residents participate in approximately fifty hours of "biblical teaching" each week. Ms. Leatherman acknowledged that although residents participate in "Celebrate Recovery" meetings, the Center does not engage licensed substance abuse counselors or refer residents to licensed counselors.

Mother testified that by the time of trial, she had participated in the Center's program for ten and one-half months. She stated that she was in the fourth phase of the program and had experienced success there in remaining drug-free. Ms. Ellison and Ms. Leatherman both testified that Mother had never violated the rules of the Center and that she had been one of the better employees in the Center's thrift store during her work there. Ms. Ellison acknowledged that had Mother violated the rules of the Center, Mother would have been returned to incarceration.

Following the filing of the termination petition in January 2014, Grandparents filed a motion for default judgment on May 13, 2014, averring that Mother was served with a summons and complaint on March 19, 2014, and had failed to plead or otherwise defend against the action. Upon Grandparents' request, the trial court entered an order on May 13, 2014, appointing attorney C. John Chavis as guardian ad litem ("GAL") to represent the Child. Upon Mother's filing an affidavit of indigency, the court subsequently entered an order on June 10, 2014, finding Mother to be indigent and appointing counsel to represent her.

Mother testified at trial that she had written a letter to Grandparents and mailed it in late March or early April 2014. Mother stated that her purpose in writing the letter was to reestablish visitation with the Child. Ms. Elliott corroborated this testimony and stated that she had urged Mother to write a letter to Grandparents explaining Mother's situation and that she had mailed the letter herself. Ms. Elliott, however, was unsure of the date the letter was mailed. Grandparents, each testifying individually, stated that they had not received the letter. Regarding the timing of Mother's attempt to reestablish visitation, the trial court expressly found in remarks made at the close of trial that Mother's credibility regarding the timing of the letter was questionable. The court specifically found that Mother did not request visitation until after she was served with the termination petition.

On June 13, 2014, Grandparents and Father filed an amended petition, amending their previous allegation as to Mother's abandonment through willful failure to visit and support to specify the determinative period of four months prior to Mother's incarceration on September 22, 2013. See Tenn. Code Ann. 36-1-102(1)(A)(iv). Mother subsequently filed an answer to the amended petition on August 8, 2014. It is undisputed that Mother did begin regularly exercising visitation with the Child in August 2014 when she was in the fourth phase of the Center's program.

Following a trial conducted over the course of two days on October 27 and 28, 2014, the trial court found by clear and convincing evidence that Mother had abandoned the Child by willfully failing to visit her, willfully failing to support or make reasonable payments toward support, and by exhibiting wanton disregard for the Child's welfare prior to incarceration. 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. Having noted in its order that Father had not appeared at trial and had previously signed a consent to the termination of his parental rights and adoption of the Child by Grandparents, the court also terminated Father's parental rights to the Child.

The trial court entered the final judgment memorializing its findings on November 25, 2014. One day prior to this entry, Mother filed a premature notice of appeal. Following the entry of the final judgment, this Court 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 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 visit 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 support the Child.
3. Whether the trial court erred by finding that there was clear and convincing evidence of the statutory ground of abandonment based on wanton disregard for the welfare of the Child prior to Mother's incarceration.
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. 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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