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In re M.E.T.

Court of Appeals of Tennessee, Jackson

November 29, 2016

In re M.E.T.

          Assigned on Briefs Date: September 2, 2016

          Appeal from the Juvenile Court for Shelby County No. Z6581 Harold W. Horne, Special Judge

          The Department of Children's Services filed a petition in July 2015 to terminate the parental rights of M.G.H. (Father) with respect to his child, M.E.T. (the child).[1] The trial court found clear and convincing evidence of grounds supporting termination for Father due to abandonment by an incarcerated parent and persistence of conditions. The court also found, by the same standard of proof, that termination is in the best interest of the child. Father appeals. We affirm the trial court's holding as modified.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed as Modified; Case Remanded

          Evan Williams, Memphis, Tennessee, for the appellant, M.G.H.

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

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which Richard H. Dinkins, and Arnold B. Goldin, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         Father and Z.P.T. (Mother) were never married. They were in a relationship from about 2009 until late 2012. The child was born in July 2013. No father was listed on his birth certificate. After the child's birth, Mother left the hospital without the child. The trial court found her "mentally unstable, " noncompliant with medication for her schizophrenia diagnosis, and without stable housing or child care equipment. In August 2013, the child was placed in the custody of DCS. He was adjudicated dependent and neglected that November.

         At the outset of the case, Mother orally provided DCS with the name of the putative biological father. She did not provide any other credible information about him. She gave DCS two possible "endings" for Father's first name. A DCS caseworker recorded Father's first name as ending in "-ez" or "-el, " though, as it turned out, it actually ends "-al." Equipped with the two wrong endings and nothing more, DCS was unable to locate Father. In 2014, a DCS caseworker by the name of Melissa Justice, by chance, saw Mother at a McDonald's restaurant. Ms. Justice testified that she verified Mother's identity, after which she engaged her in conversation. In the course of their discussion, Mother wrongly identified others at the restaurant as her children when they were not. Mother spoke with Ms. Justice about the child's twin - Maxwell. In fact, the child had no twin. Ms. Justice wrote her telephone number on a piece of paper and gave it to Mother, asking her to contact DCS regarding the child's case. She did not hear from Mother for some time. About a year later, the child's paternal grandmother contacted Ms. Justice. The grandmother provided DCS with the correct spelling of Father's name. DCS was finally able to identify Father in March or April of 2015.

         On April 13, 2015, Ms. Justice met Father for the first time. At the time, he was incarcerated for assault. She testified that during the meeting she discussed with him the permanency plan and the criteria and procedures for termination of parental rights. By that time, two permanency plans had been developed, both of which listed an incorrect spelling of Father's name. Ms. Justice testified that at the April 2015 meeting Father "told [her] that he knew that [Mother] was pregnant and that she had named the baby [M]." At trial, Father denied having made that statement. Justice testified that the putative father registry revealed no other claims to paternity, no other man had held himself out as the father, and Mother had not identified another possible father. DCS arranged for Father to take a DNA test to address the issue of paternity. Father testified that he first learned of the existence of the child in April 2015. He said he did not know he was the father until he received the DNA test results in July 2015. On July 17, 2015, DCS filed a petition to terminate both parents' rights. DCS amended the petition in a filing on November 12, 2015. As to Father, the petition was amended to add the ground of persistence of conditions.

         Father has an extensive criminal history. By the time of trial on February 4, 2016, he had not met or paid any support for the child. He was then out of prison and living with his mother after a stint in a halfway house. The trial court found clear and convincing evidence of grounds to terminate Father's parental rights due to abandonment by an incarcerated parent, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) (2014) and -102(1)(A)(iv) (2014), and for persistence of conditions, pursuant to Tenn. Code Ann. § 36-1-113(g)(3). The trial court also found, by the same standard, that termination was in the child's best interests. Father appeals.

         II.

         Father raises two issues on appeal. (1) Whether the trial court erred in finding statutory grounds for termination due to abandonment and persistence of conditions. (2) Whether the termination of parental rights is in the best interests of the minor child.

         III.

         A parent has a fundamental right, based on both the federal and state constitutions, to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute. The State may interfere with a parent's rights in certain circumstances. In re Angela E., 303 S.W.3d at 250. Our legislature has listed the grounds upon which termination proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and a parent's rights may be terminated only where a statutory basis exists. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

         To terminate parental rights, a court must determine by clear and convincing evidence the existence of at least 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 Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). "Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings." In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted). Unlike the preponderance of the evidence standard, "[e]vidence satisfying the clear and convincing standard establishes that the truth of the facts asserted is highly probable." In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

         Once a ground for termination is established by clear and convincing evidence, the trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). "The best interest[ ] analysis is separate from and subsequent to the determination that there is clear and convincing evidence of grounds for termination." Id. at 254. The existence of a ground for termination "does not inexorably lead to the conclusion that termination of a parent's rights is in the best interest of the child." In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).

         We are required to review all of the trial court's findings with respect to grounds and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) ("[W]e hold that in 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 interest[ ], regardless of whether the parent challenges these findings on appeal.")

The Supreme Court has recently delineated our standard of review:
An appellate court reviews a trial court's findings of fact in termination proceedings using the standard of review in Tenn. R. App. P. 13(d). Under Rule 13(d), appellate courts review factual findings de novo on the record and accord these findings a presumption of correctness unless the evidence preponderates otherwise. In light of the heightened burden of proof in termination proceedings, however, the reviewing court must make its own determination as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights. The trial court's ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness. Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness.

Id. at 523-24 (internal citations omitted). "When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to . . . the trial court's factual findings." In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034, at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).

         IV.

         A.

         Tenn. Code Ann. §36-1-113(g)(1) permits the termination of parental rights when abandonment occurs as defined by Tenn. Code Ann. § 36-1-102(1). That statute provides ...


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