Session: August 16, 2016
from the Circuit Court for Shelby County No. CT00379814 Gina
C. Higgins, Judge
J. Sossaman, Memphis, Tennessee, for the appellant, L. D. K.,
Theresa D. Childress, Memphis, Tennessee, for the appellant,
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
B. Goldin, J., delivered the opinion of the court, in which
John W. McClarty and Brandon O. Gibson, JJ., joined.
B. GOLDIN, JUDGE
AND PROCEDURAL HISTORY
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). 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.
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.
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.
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. 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. The Juvenile Court also relieved the
Department from making reasonable efforts to reunite Mother
with her children.
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
September 4, 2014, the Department filed a petition seeking to
terminate Mother and Father's parental rights in the
Shelby County Circuit Court. 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. 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
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.
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.
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
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)).
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).
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).
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
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.
by Willful Failure to Support
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. §
concluding that Mother had abandoned the children by
willfully failing to support them, the trial court found as
[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.
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.