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In re Maddox C.

Court of Appeals of Tennessee, Nashville

November 9, 2016

IN RE MADDOX C.

          Assigned on Briefs October 4, 2016

         Appeal from the Chancery Court for Dickson County No. 2014-CV-431 Suzanne Lockert-Mash, Judge

         This is a termination of parental rights case. Father/Appellant, who is incarcerated, appeals the termination of his parental rights to the minor child. The trial court terminated Father's parental rights on two statutory grounds: (1) abandonment, and (2) incarceration for more than ten years, see Tenn. Code Ann. §§ 36-1-113(g)(1) and (6), and on its finding that termination of Father's parental rights is in the child's best interest. Discerning no error, we affirm and remand.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

          Bradley Kyle Sanders, Dickson, Tennessee, for the appellant, Christopher H.

          Travis Nathaniel Meeks, Clarksville, Tennessee, for the appellees, Brittnie B., and Brandon B.

          Arnold B. Goldin, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and W. Neal McBrayer, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         I. Background

         The minor child, Maddox C., [1] was born in July of 2009. The child's mother, Brittnie B., and the child's father Christopher H. ("Father" or "Appellant") were never married. Brittnie B. and Christopher H.'s relationship ended in early 2011, and Brittnie B. married Brandon B. (together with Brittnie B., "Appellees") sometime in 2012. Appellees have one child together, Jackson B., who was two years old at the time of the hearing. At all relevant times, Maddox has lived with Appellees.

         On September 19, 2012, the Dickson County Juvenile Court entered an order, which was admitted as Trial Exhibit 4. The order established Appellant as Maddox's biological father and ordered Appellant to submit to random drug tests as ordered by the court. Concurrent with its September 19, 2012 order, the juvenile court entered a permanent parenting plan, which granted Appellant visitation with the child and ordered him to pay $305 per month in child support.

         On January 28, 2013, the juvenile court granted Brittnie B. a restraining order against Father. The restraining order, which was admitted as Trial Exhibit 5, suspended Appellant's visitation. Thereafter, Brittnie B. moved the juvenile court to order hair follicle testing on Father; this motion was heard on February 13, 2013. In its order of February 26, 2013, the juvenile court noted that Father "announced to the court that he had in fact been arrested on a new indictment and that he anticipated being arrested [for] violation of probation." The juvenile court found that the hair follicle test was unnecessary in light of Father's pending legal troubles, but ordered that the restraining order would "become permanent until further order of the court." On June 4, 2013, Father was incarcerated, where he remained during the pendency of the petition to terminate his parental rights.

         On December 11, 2014, Appellees filed a petition in the Chancery Court for Dickson County (the "trial court") to terminate Father's parental rights and for Brandon B. to adopt Maddox. As grounds for termination of Appellant's parental rights, Appellees averred: (1) abandonment pursuant to Tennessee Code Annotated Section 36-1-113(g)(1) as defined by Tennessee Code Annotated Section 36-1-102(1)(A)(iv); and (2) Father's being sentenced to ten or more years of incarceration when Maddox was less than eight years old pursuant to Tennessee Code Annotated Section 36-1-113(g)(6). On January 12, 2015, Appellees filed a motion for the appointment of a guardian ad litem to represent Maddox.

         On or about February 23, 2015, Appellant filed a handwritten document in the trial court. The document, which is titled "Certificate of Service" states, in relevant part, that:

I'm [Father] writing because I have no way of getting a lawyer . . . . There is a hearing scheduled [for] February 27, 2015. I'm not sure I will be brought to the hearing. I would like to let the Court know I will never sign my parental rights to . . . Brandon B[.]. I am the child's biological father . . . . I would like the Court to postpone this case, and appoint me a lawyer . . . .

         On March 16, 2015, the trial court entered an order, appointing an attorney to represent Appellant and appointing a guardian ad litem for the child.

         On September 22, 2015, Father filed a motion to dismiss the petition pursuant to Tennessee Rules of Civil Procedure 12.02(4) and (5). In his motion, Father averred that there was insufficient service of process because

the summons return in this case says, "Served to the IA office at the prison." Pursuant to TCA Section 41-21-301, "Process in a civil action against an inmate in the penitentiary may be served by the proper officer, in the presence of the warden or the assistant warden, and returned as in other cases." [Appellant] submits service of process was insufficient in this case, and that it should be dismissed.

         On September 28, 2015, Appellees filed a response in opposition to Father's motion to dismiss, wherein they noted that Father had "filed a pro se response to the petition on February [23], asking for an appointed attorney and responding to the petition for adoption." As such, Appellees argued that Appellant "ha[d] already acknowledge[d] service of process and waive[d] any issue that could be presented in a rule 12 motion."

         On January 5, 2016, Father filed an answer to Appellees' petition, wherein he reiterated the argument set out in his Rule 12 motion, supra. In addition to renewing his insufficient service of process argument, Appellant denied the material allegations set out in the petition and opposed termination of his parental rights and/or adoption by Brandon B.

         On January 6, 2016, the trial court heard Appellant's Rule 12 motion and the petition for termination of parental rights. On March 16, 2016, the trial court entered a memorandum opinion terminating Father's parental rights on the grounds set out in the Appellees' petition and on its finding that termination of Father's parental rights is in the child's best interest. On April 13, 2016, the trial court entered an order terminating Father's parental rights; the April 13, 2016 order incorporates the trial court's March 16, 2016 memorandum opinion. Father's timely appeal followed.

         II. Issues

         Father raises four issues for review as stated in his brief:

1. Whether the trial court erred in denying Appellant's motion to dismiss pursuant to Tennessee Rules of Civil Procedure 12.02(4) and (5) due to insufficient service of process?
2. Whether clear and convincing evidence supports the trial court's determination that Appellant abandoned the minor child?
3. Whether clear and convincing evidence supports the trial court's decision to terminate Appellant's parental rights based upon his incarceration of a sentence of ten years or more and that the child was under eight years of age at the time of the sentence?
4. Whether clear and convincing evidence supports the trial court's determination that termination of the parental rights of Appellant is in the best interest of the minor child?

         III. Standard of Review

         Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only when a compelling interest exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. Accordingly, both the grounds for termination and that termination of parental rights is in the child's best interest must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that the truth of the facts asserted is highly probable ... and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id. at 653.

         In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review in Tennessee Rule of Appellate Procedure 13(d). As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). We must then determine whether the facts, as found by the trial court or as supported by the preponderance of the evidence, ...


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