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In re Heaven J.

Court of Appeals of Tennessee, Jackson

December 22, 2016

IN RE: HEAVEN J.

          Assigned on Briefs December 2, 2016

         Direct Appeal from the Juvenile Court for Shelby County No. AA1900 Dan H. Michael, Judge

         This appeal involves the termination of a father's parental rights to his daughter. The trial court terminated the father's parental rights upon finding by clear and convincing evidence that several grounds for termination were proven and that termination was in the best interest of the child. We conclude that the record contains insufficient evidence to support the trial court's findings as to grounds for termination. We accordingly reverse and remand for further proceedings.

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

          Constance Andrielle Wooden Alexander, Memphis, Tennessee, for the appellant, Clarence D.

          Herbert H. Slattery III, Attorney General and Reporter and Ellison M. Berryhill, 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

         Heaven J. was born in March 2014 at a Memphis hospital. She was born at 33 weeks gestational age and tested positive at birth for cocaine and benzodiazepines. The Tennessee Department of Children's Services ("DCS") received a referral that Heaven was a drug exposed infant. Upon investigation, DCS learned that Heaven's mother ("Mother") had a long history of drug abuse and received no prenatal care while pregnant. No father was listed on Heaven's birth certificate.

         On April 1, 2014, DCS filed a petition in the juvenile court of Shelby County seeking an adjudication that Heaven was dependent and neglected and seeking temporary legal custody of her. According to the petition, Heaven weighed three pounds and twelve ounces at birth and remained in the neonatal intensive care unit. The petition alleged that Heaven was ready to be discharged from the hospital, and DCS was not aware of any relatives available to care for her. Mother was previously discharged from the hospital and had not returned to visit Heaven. According to the petition, Mother identified Clarence D. ("Father"), a resident of Kentucky, as Heaven's putative father and reported that he would like to obtain custody of her, but DCS had been unable to contact him.[1]The juvenile court entered an ex parte protective custody order awarding temporary legal custody of Heaven to DCS on or about April 1, 2014. Heaven was placed in a foster home.

         DCS conducted two child and family team meetings regarding Heaven on April 14, 2014. Father participated in both meetings by telephone. The record from the first meeting, regarding Heaven's intake, noted that Father was in Kentucky and that he needed to complete a DNA test. The second meeting was held to develop a permanency plan for Heaven. According to the notes from that meeting, Father reported that he wanted to legitimate Heaven as soon as possible. However, DCS also learned that Mother remained legally married to a man who was incarcerated, and therefore, Heaven already had a legal father. The April 14, 2014 permanency plan required Father to provide financial support to Heaven and attend supervised visits with her for four hours per month. It also required Father to legitimate Heaven.

         In May 2014, when Heaven was almost two months old, she was removed from her foster home and placed with Mother's cousin in Obion County, Tennessee. Another child and family team meeting was held on August 7, 2014. Father and Mother participated in the meeting via teleconference. Father and Mother indicated their agreement for Heaven to remain with the maternal relatives for the time being. According to the records from the meeting, Mother asked about visitation for Father and his adult children, and the guardian ad litem stated that Father's visitation could not be initiated until he established paternity. Mother informed DCS that a DNA test was scheduled for later that month.[2]

         On August 29, 2014, the juvenile court entered an adjudicatory order in the pending dependency and neglect proceeding. The court found that Heaven was dependent and neglected and the victim of severe child abuse as a result of Mother's use of cocaine while pregnant. Regarding Father, the court further found:

The child is also dependent and neglected as to [Father]. [Father] has not taken steps to legitimate this child despite knowing of her birth. Further, he and [Mother] have domestic violence issues. [Mother] testified that she and [Father] are no longer romantically involved but as recently as the week before trial she called the police on him because of these issues.

         Based on these findings, the court sustained the petition filed by DCS and ordered that Heaven remain in DCS custody.

         Another child and family team meeting was held via teleconference on September 4, 2014, in order to revise the permanency plan for five-month-old Heaven. Father participated and reported that he had taken the DNA test on September 2, 2014, and was awaiting the results. Father reported that he would be going to court to file a petition for custody of Heaven. DCS decided to complete an ICPC evaluation for Father, pursuant to the Interstate Compact on the Placement of Children, so that Heaven could be placed with him in Kentucky. In the meantime, however, Heaven would return to her previous foster home, as the maternal relatives reported that they could not continue with the placement in their home as planned.

         Another child and family team meeting was held one week later, and Father again participated by phone. Father shared that the DNA test was completed and received, and he indicated his intent to file a petition for custody as the biological father. The meeting summary reflects as a "strength" that Father was working toward regaining custody of Heaven, but it also reflected as a "need" or "concern" that Father would need to present the DNA test result to the court.

         A revised permanency plan was also developed during these September meetings. It contained the original requirements for Father to visit Heaven four hours per month, financially support her, and legitimate her. It also added new requirements for Father to comply with the ICPC requirements, provide DCS with an accurate criminal history, remain drug free, and submit to drug screenings.

         Father attended a hearing regarding the revised permanency plan on November 3, 2014. He also had a face-to-face visit with Heaven on that date either before or after the hearing for no more than one hour. DCS records indicate that Father informed his case manager that he did not know what he needed to do regarding filing a court petition. Father was instructed to go to a particular office in order to obtain assistance with filing a petition for legitimation.[3] He went to the office as instructed and inquired about the legitimation process. However, he did not complete the filing process on that date because he was told that he needed to submit a $100 filing fee, and he did not have the money that day. Father returned to Memphis on another date and went to the office with the money, but the office was closed.

         On November 17, 2014, the juvenile court entered an order ratifying the revised permanency plan and finding that Father was in substantial compliance with its requirements by working to legitimate the child, visiting, and supporting her. Days later, on November 20, 2014, Father was arrested in Kentucky in connection with a domestic altercation with Mother. He was charged with various offenses and remained in jail until March 27, 2015. All charges against Father were ultimately dismissed. Meanwhile, however, while Father was incarcerated, DCS held child and family team meetings in February and March 2015 and discussed Father's incarceration in Kentucky. The team also discussed that Father had not yet legitimated Heaven, who turned one year old in March 2015, despite his stated desire to do so. DCS decided to start the process of terminating Father's parental rights. They also discussed working with Heaven's legal father, Mother's husband, in order to accomplish a surrender of his parental rights.

         The juvenile court held a hearing regarding the permanency plan approximately one week after Father was released from jail, on April 6, 2015, and entered an order finding that Father was not in substantial compliance with the plan in that he had not legitimated Heaven, visited, provided financial support, or submitted to random drug tests. Heaven was assigned a new case manager in May 2015, but she admittedly did nothing to assist Father with the permanency plans because the decision had already been made to terminate his parental rights. Father attended a foster care review board hearing on June 23, 2015, and had a short face-to-face visit with Heaven that day. Father also passed a drug screen that day.

         On July 30, 2015, four months and three days after Father was released from jail, DCS filed a petition to terminate his parental rights. Heaven was sixteen months old. The petition alleged numerous grounds for termination, including abandonment by willful failure to visit and willful failure to support; substantial noncompliance with a permanency plan; persistent conditions; and numerous additional grounds applicable to non-legal fathers.[4] Father filed a petition to establish parentage on January 27, 2016. The termination trial was held on February 11, 2016, before a special judge. The special judge heard testimony from Father, Mother, Mother's mother, three DCS employees, and Heaven's foster mother. On March 10, 2016, the special judge entered an order terminating Father's parental rights based on all grounds asserted in the petition. Father timely filed a notice of appeal.

         II. Issues Presented

         On appeal, Father raises a single issue regarding whether the trial court erred in allowing questions to be asked of him and Mother regarding his prior crimes, wrongs, or acts, specifically in connection with his arrest for the domestic incident, in violation of Tennessee Rule of Evidence 404(b).[5] Father does not challenge the trial court's findings regarding the various grounds for termination or the best interest analysis. However, the Tennessee Supreme Court has stated unequivocally 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 interests, regardless of whether the parent challenges these findings on appeal." In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016). As a result, we have reviewed the trial court's findings regarding all grounds for termination and regarding the best interest analysis. For the following reasons, we reverse 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.

         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 at 524 (citing In re Bernard T., 319 S.W.3d at 596-97). "The trial court's ruling that the evidence ...


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