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In re Tamera W.

Court of Appeals of Tennessee, Jackson

November 9, 2016

IN RE TAMERA W., ET AL.

          Session: August 16, 2016

         Appeal from the Circuit Court for Shelby County No. CT00379814 Gina C. Higgins, Judge

          Dennis J. Sossaman, Memphis, Tennessee, for the appellant, L. D. K., Jr.

          Theresa D. Childress, Memphis, Tennessee, for the appellant, L. K.

          Herbert H. Slatery, III, Attorney General and Reporter; M. Cameron Himes, Assistant Attorneys General, Nashville, Tennessee, for the appellant, State of Tennessee, Department of Children's Services.

          Elizabeth W. Fyke, Memphis, Tennessee, Guardian ad litem.[1]

          Arnold B. Goldin, J., delivered the opinion of the court, in which John W. McClarty and Brandon O. Gibson, JJ., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         BACKGROUND AND PROCEDURAL HISTORY

         In this appeal, we address the termination of parental rights of L.K. ("Mother") to her seven children-T.L.W. (d.o.b. 7/1999), A.E.W. (d.o.b. 1/2001), L.S.W. (d.o.b. 2/2002), Q.D.W. (d.o.b. 9/2003), J.S.W. (d.o.b. 2/2005), A.M.W. (d.o.b. 7/2006), and L.T.K. (d.o.b. 12/2011).[2] We also address the termination of parental rights of L.D.K. ("Father") to three of these children-A.M.W., Q.D.W., and L.T.K. Father is not a biological parent of T.L.W., A.E.W., L.S.W., or J.S.W.

         In October 2012, the Department received a referral alleging that one of the children, A.M.W., had been severely physically abused. When a Department investigator inquired about the allegations by showing up at A.M.W.'s school, A.M.W. reported that Mother had whipped her with an extension cord the previous evening. A.M.W. revealed that she was hurting, and her body had visible injury marks. Whereas some of A.M.W.'s wounds were fresh, others appeared to be old and healing. The wounds were evident on her legs, ankles, back, and buttocks.

         Subsequent interviews with some of the other children revealed that they too had been abused in the past. Among other things, they reported that Mother had duct taped their wrists, mouths, and eyes while whipping them. They also stated that Mother had required them to remain in squatting positions in the home hallway while they waited to receive their individual whippings. Like A.M.W., some of these children had visible injury marks. In forensic interviews that were later conducted, some of the children stated that Father had been present in the home when the whippings had taken place. Others claimed that Father had also whipped them directly, albeit with a belt instead of an extension cord.

         On October 19, 2012, Mother was arrested and charged with four counts of aggravated child abuse. Although the home of a maternal uncle was identified by the Department as a potential place for the children's placement, this placement did not materialize when the uncle reported that he was not able to provide adequate care. On October 26, 2012, the Shelby County Juvenile Court placed the children in the temporary custody of the Department. Approximately eleven months later, on September 13, 2013, the Juvenile Court found that the minor children were dependent and neglected.[3] As part of its findings, the Juvenile Court noted that Mother had severely abused the children. Although the matter came to be reheard by the Juvenile Court on March 10, 2014, the children were once again found to be dependent and neglected.[4] The Juvenile Court also relieved the Department from making reasonable efforts to reunite Mother with her children.

         Following the children's removal from Mother and Father's home, a number of family permanency plans were created. The first of these plans, which was created on November 19, 2012, had alternative permanency goals of "Return to Parent" and "Exit Custody with Relative." The record shows that on the same day that this plan was created, both Mother and Father received a copy of the "Criteria & Procedures for Termination of Parental Rights." Although the second permanency plan had alternative permanency goals of "Adoption" and "Return to Parent" when it was created on September 19, 2013, the Juvenile Court did not find these goals to be appropriate when it reviewed the plan in October 2013. Citing Mother's abuse of the children, the Juvenile Court changed the permanency goals to "Exit Custody with Relative" and "Adoption." These same goals were included as part of the final permanency plan created on September 17, 2014. Among other things, the permanency plans required Mother and Father to complete a mental health assessment and follow all treatment recommendations and to participate in counseling geared toward recognizing the effect of abuse on the children.

         On September 4, 2014, the Department filed a petition seeking to terminate Mother and Father's parental rights in the Shelby County Circuit Court.[5] With respect to Mother, the petition alleged that the following grounds for termination existed: (1) Mother had abandoned the children by failing to support them; (2) Mother had abandoned the children by engaging in conduct prior to incarceration that exhibited a wanton disregard for the children's welfare; (3) Mother had failed to substantially comply with the provisions of the permanency plans; and (4) Mother had committed severe child abuse against the children.[6] With respect to Father, the petition alleged two grounds for termination: (1) that Father had failed to substantially comply with the provisions of the permanency plans and (2) that Father had committed severe child abuse.

         A hearing on the termination petition occurred over several dates in July 2015, and on August 7, 2015, the trial court announced by oral ruling that it was terminating both Mother and Father's parental rights. A written order memorializing this ruling was later entered by the trial court on September 18, 2015. Pursuant to its September 18 order, the trial court determined that Mother had abandoned the children by willfully failing to support them, that Mother had abandoned the children as defined under Tennessee Code Annotated section 36-1-102(1)(A)(iv) by engaging in conduct prior to incarceration that exhibited a wanton disregard for the children's welfare, that Mother had failed to substantially comply with the provisions of the permanency plans, and that Mother had committed severe child abuse. As for the grounds supporting the termination of Father's parental rights, the trial court determined that Father had failed to substantially comply with the provisions of the permanency plans and that he had committed severe child abuse. The trial court further concluded that the termination of both Mother and Father's parental rights would serve the children's best interest. In support of its decision to grant the Department's termination petition, the trial court noted that its findings as to both the grounds for termination and the children's best interest were supported by clear and convincing evidence. This timely appeal followed.

         ISSUES

         Mother's appellate brief raises two issues for our review. Her first issue challenges the trial court's finding that the termination of her parental rights was in the children's best interests. Her second issue challenges the trial court's determination that she failed to substantially comply with the provisions of the permanency plans. Father's brief raises a single issue: whether he had the intellectual ability to have acted in conformity with the permanency plans or to have known that Mother inflicted abuse on the children.

         Our review on appeal is not limited by Mother's failure to address every ground for termination relied upon by the trial court to terminate her parental rights or by Father's failure to address the trial court's determination that termination of his parental rights was in the children's best interest. In order to help "ensure that fundamental parental rights are not terminated except upon sufficient proof, proper findings, and fundamentally fair procedures, " we are required to review the trial court's findings as to each ground for termination and as to whether termination is in the child's best interest. See In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016) ("[I]n an appeal from an order terminating parental rights the Court of Appeals must review the trial court's findings as to each ground for termination and as to whether termination is in the child's best interests, regardless of whether the parent challenges these findings on appeal.").

         STANDARD OF REVIEW

         "A biological parent's right to the care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the due process clauses of the federal and state constitutions." In re M.L.P., 228 S.W.3d 139, 142 (Tenn. Ct. App. 2007) (citations omitted). "Although this right is fundamental and superior to claims of other persons and the government, it is not absolute." In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App. 2007) (citation omitted). "It continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations omitted). In Tennessee, "[w]ell-defined circumstances exist under which a parent's rights may be terminated." In re Roger T., No. W2014-02184-COA-R3-PT, 2015 WL 1897696, at *6 (Tenn. Ct. App. Apr. 27, 2015), no perm. app. filed. Pursuant to the Tennessee Code, parties who have standing to seek the termination of a parent's parental rights must prove two things. They must first prove at least one of the statutory grounds for termination. In re J.C.D., 254 S.W.3d at 438 (citing Tenn. Code Ann. § 36-1-113(c)(1)). Then, they must prove that termination of parental rights is in the child's best interests. Id. (citing Tenn. Code Ann. § 36-1-113(c)(2)).

         Because the decision to terminate a parent's parental rights has "profound consequences, " trial courts must apply a higher standard of proof in deciding termination cases. In re M.L.P., 228 S.W.3d at 143. "To terminate parental rights, a court must determine that clear and convincing evidence proves not only that statutory grounds exist but also that termination is in the child's best interest." In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). "Clear and convincing evidence is evidence that eliminates any substantial doubt and that produces in the fact-finder's mind a firm conviction as to the truth." In re M.A.B., No. W2007-00453-COA-R3-PT, 2007 WL 2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007) (citation omitted). This heightened burden of proof "minimizes the risk of erroneous decisions." In re M.L.P., 228 S.W.3d at 143 (citations omitted).

         Due to the heightened burden of proof required under the statute, we must adapt our customary standard of review. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). "First, we must review the trial court's specific findings of fact de novo in accordance with Tenn. R. App. P. 13(d)." In re M.J.B., 140 S.W.3d at 654. "Second, we must determine whether the facts, either as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements required to terminate a biological parent's parental rights." Id. (citations omitted).

         DISCUSSION

         Consistent with the Tennessee Supreme Court's direction in In re Carrington H., we are required to review the trial court's findings as to each ground for termination. See In re Carrington H., 483 S.W.3d at 525-26. Accordingly, in the analysis that follows, we review each ground for termination relied upon by the trial court separately. However, notwithstanding the comprehensive nature of our review, we ultimately need only find that one ground for termination was established in order to uphold the trial court's decision. In re Valentine, 79 S.W.3d at 546.

         Abandonment

         The first ground for termination listed in our termination statute, and the most frequently relied on, is abandonment. In re Audrey S., 182 S.W.3d at 862 (citations omitted). The acts that constitute abandonment are outlined in Tennessee Code Annotated section 36-1-102, which provides five alternative definitions. In this case, the trial court determined that Mother abandoned the children pursuant to two of the five statutory definitions in section 36-1-102. We address each of these determinations in turn.

         Abandonment by Willful Failure to Support

         The first ground for termination cited in the trial court's September 18, 2015 order is the definition of abandonment provided for in Tennessee Code Annotated section 36-1-102(1)(A)(i). Pursuant to that definition, a parent's parental rights may be terminated when:

(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent or parents or the guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, that the parent or parents or the guardian or guardians either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i). For purposes of this definition of abandonment, "willfully failed to support" or "willfully failed to make reasonable payments toward such child's support" means the "willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child." Id. § 36-1-102(1)(D). Token support is defined as "support, [that] under the circumstances of the individual case, is insignificant given the parent's means." Id. § 36-1-102(1)(B).

         In concluding that Mother had abandoned the children by willfully failing to support them, the trial court found as follows:

[F]or a period of four (4) consecutive months immediately preceding the filing of the Petition for Termination of Parental Rights, [Mother] willfully failed to make any contribution whatsoever toward the support of the children, despite being able-bodied and capable of being employed. The petition was filed on September 4, 2014, and [Mother] failed to support the children from May 4, 2014, to the date the petition was filed. The testimony of [Mother] was that she was employed during the four months preceding the filing of the Petition, that she gave money to the children at the courthouse and perhaps during visits, and that she had purchased gifts for the children during the four months preceding the filing of the Petition, but had not delivered the gifts to the children. The Court finds that the monies [Mother] gave to the children were all token gifts and not consistent or adequate enough for the Court to find that she supported her children during the four months preceding the filing of the Petition. Additionally, the Court notes that [Mother] was required under the permanency [plan] to provide support for the children, that [Mother] was advised of her duty to provide support, and [Mother] understood her duty to support her children. Likewise, the Court finds that [Mother's] testimony that she . . . had purchased gifts, but not delivered them was not credible. The Court finds that there was no justifiable reason for [Mother] to not support the children and that she thereby willfully abandoned them.

         Having reviewed the record, we conclude that the evidence does not preponderate against the trial court's factual findings on this issue. Moreover, we agree with the trial court's conclusion that this ground for termination was established by clear and convincing evidence.

         Abandonment by ...


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