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In re Addison B.

Court of Appeals of Tennessee, Knoxville

November 30, 2016

IN RE: ADDISON B.

          Assigned on Briefs November 1, 2016

         Direct Appeal from the Juvenile Court for Jefferson County No. 15-00336 Dennis Roach, II, Judge

         This appeal involves the termination of a father's parental rights. The father is currently serving an eight-year sentence after pleading guilty to two counts of attempted child rape, with the victims being the child at issue and her older half-sister. The trial court terminated the father's parental rights upon finding by clear and convincing evidence that six grounds for termination were proven and that termination was in the best interest of the child. We vacate the trial court's findings as to three grounds but affirm the trial court's findings regarding the remaining three grounds and affirm the best interest finding. We accordingly affirm the trial court's order as modified and uphold the termination of the father's parental rights.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated in Part, Affirmed as Modified, and Remanded

          Kimberly Ruth Grace, Jefferson City, Tennessee, for the appellant, R.B.

          Herbert H. Slatery III, Attorney General and Reporter, and Rachel Erin Buckler, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and John W. McClarty, J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         Addison B. was born in 2007 to married parents, A.B.[1] ("Mother") and R.B. ("Father"). The Tennessee Department of Children's Services ("DCS") became involved with the family in 2012 after receiving a referral of possible sexual abuse. During interviews with DCS case managers, five-year-old Addison and her fifteen-year-old half-sister both disclosed that they had been touched inappropriately by Father on more than one occasion. On December 3, 2012, DCS filed a "Petition for Restraining Order and Petition for Order Controlling Conduct" in the juvenile court of Jefferson County. DCS sought an order declaring the children dependent and neglected and a restraining order preventing Father from having any contact with the children. The juvenile court entered an ex parte restraining order that same day, prohibiting Father from having any contact, personally or through third parties, with the children.

         On April 16, 2013, Father was arrested and charged with five counts of rape of a child, with the victims being Addison and her half-sister. On November 15, 2013, the juvenile court entered a "Final Order Restraining Contact between [Father] and Children, " which stated that all parties agreed that the children were dependent and neglected. According to the order, Father waived his right to a hearing and stipulated that if DCS presented its proof to support the allegations, it would meet its burden of proof by clear and convincing evidence. The order states that Father agreed to have "absolutely no contact" with the children until they reached the age of eighteen unless the order was modified. Because Mother had successfully completed all court-ordered services, the order provided that the case was closed, but the children would remain within the protective jurisdiction of the court.

         Six months later, in May 2014, DCS became involved with the family again. DCS received a referral that Addison was acting out sexually with another child at school. Upon investigation, DCS learned that Father had posted a $350, 000 bond and was released from jail in January 2014. He was ordered to remain at home or at his mother's house and was required to wear an ankle monitor. During an interview with Addison, she disclosed that she and Mother were visiting with Father, sometimes overnight, and during those overnight visits Addison would share a bed with Mother and Father. Mother initially denied such contact but was later arrested and pled guilty to making a false report based on her statements to the investigating officer. Based on these developments, DCS filed a "Petition for Temporary Legal Custody and Ex Parte Order" seeking legal custody of Addison. The juvenile court entered a protective custody order placing temporary legal custody of Addison with DCS effective May 3, 2014, and she was placed in foster care. On May 9, 2014, Father was again ordered to have no contact with Addison and was ordered to pay child support in the amount of $100 per week. This amount was later reduced to $60 per month effective July 14, 2014.

         Father attended a child and family team meeting with DCS on May 29, 2014, but he refused to sign the permanency plan and related documents. The permanency plan required Father to complete sex offender training, complete a psychosexual evaluation, follow all court orders, resolve all current legal matters and refrain from incurring additional charges, contact DCS twice monthly, pay child support, apply for insurance, sign releases, provide proof of reliable transportation, adequate income, and a stable home, and ensure that Addison was safe from abuse and attending school, medical appointments, and counseling.

         On August 11, 2014, Father returned to jail upon the revocation of his bond due to his aforementioned violation of the no-contact order regarding Addison. That same day, his first child support payment was made, for the sum of $60. To resolve the charges pending against him for five counts of child rape, in December 2014, Father pled guilty to two counts of attempted child rape and was sentenced to eight years in the custody of the Tennessee Department of Correction. His orders of conviction provided that he was also sentenced to community supervision for life, required to register as a sex offender, and ordered to have no contact with the victims, Addison and her half-sister.

         On April 28, 2015, DCS filed a petition to terminate Father's parental rights. By that time, Addison was almost eight years old, and she had been in foster care for just shy of one year. The termination petition alleged that six grounds existed for terminating Father's parental rights: abandonment by an incarcerated parent by failure to pay support; abandonment by an incarcerated parent due to wanton disregard; substantial noncompliance with the permanency plan; persistent conditions; severe child abuse; and sentenced for child abuse. It also alleged that termination was in the best interest of Addison.

         The termination case was tried on April 1, 2016. The only witnesses were Father and the DCS family service worker assigned to Addison's case. On April 13, 2016, the trial court entered an order terminating Father's parental rights on all grounds asserted in the petition. Father timely filed a notice of appeal.

         II. Issues Presented

         On appeal, Father challenges the trial court's findings regarding all six grounds for termination and its conclusion regarding Addison's best interest. For the following reasons, we affirm the decision of the juvenile court as modified and remand for further proceedings.

         III. Standard of Review

         "In Tennessee, proceedings to terminate [a] parent's parental rights are governed by statute." In re Kaliyah S., 455 S.W.3d 533, 541 (Tenn. 2015). Tennessee Code Annotated section 36-1-113 "sets forth the grounds and procedures for terminating the parental rights of a biological parent." Id. at 546. Pursuant to the statute, parties who have standing to seek termination of a biological parent's parental rights must prove two elements. Id. at 552. First, they must prove the existence of at least one of the statutory grounds for termination listed in Tennessee Code Annotated section 36-1-113(g). Id. Second, the petitioner must prove that terminating parental rights is in the child's best interest, considering, among other things, the factors listed in Tennessee Code Annotated section 36-1-113(i). Id. In light of the constitutional dimension of the rights at stake in a termination proceeding, the persons seeking to terminate parental rights must prove both of these elements by clear and convincing evidence. In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)). "Clear and convincing evidence" has been defined as "evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (citing In re Valentine, 79 S.W.3d at 546). It produces a firm belief or conviction in the fact-finder's mind regarding the truth of the facts sought to be established. In re Bernard T., 319 S.W.3d at 596.

         In sum, in order to terminate parental rights, a trial court must determine by clear and convincing evidence not only the existence of at least one of the statutory grounds for termination but also that termination is in the child's best interest. In re Adoption of Angela E., 402 S.W.3d at 639. Because of this heightened burden of proof in parental termination cases, on appeal we must adapt our customary standard of review as set forth in Tennessee Rule of Appellate Procedure 13(d). In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). First, we review each of the trial court's specific factual findings de novo in accordance with Rule 13(d), presuming the finding to be correct unless the evidence preponderates against it. In re Adoption of Angela E., 402 S.W.3d at 639. Second, we must make our 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." In re Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016) (citing In re Bernard T., 319 S.W.3d at 596-97). "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." Id. (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)).

         IV. Discussion

         A. Grounds ...


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