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In re G.L.

Court of Appeals of Tennessee, Knoxville

December 28, 2016

In re G.L.

          Assigned on Briefs October 4, 2016

         Appeal from the Juvenile Court for Greene County No. J26869 Kenneth N. Bailey, Jr., Judge

         This is a termination of parental rights case. The Department of Children's Services filed a petition to terminate the parental rights of C.L. (Mother)[1] to her child, G.L. (the Child). The trial court found clear and convincing evidence of grounds supporting termination due to severe child abuse and abandonment by an incarcerated parent. The court also found, by the same quantum of evidence, that termination is in the best interest of the Child. Mother appeals. We affirm.

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

          Sandy Phillips, Johnson City, Tennessee, for appellant, C.L.

          Herbert H. Slatery III, Attorney General and Reporter, and Brian A. Pierce, 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.

         The Child was born on October 23, 2003. In July 2011, Mother took photographs of the Child's genitals and of the Child while she was sleeping and only wearing a tee-shirt and underwear. Mother sent these photographs to her former boyfriend, M.F., via text messages upon his request. At the time, Mother knew that M.F. was a registered sex offender. During the course of their relationship, M.F. frequently discussed with Mother his sexual interest in the Child.

         After admitting to DCS in April 2014 that she had taken the photographs and sent them to M.F., law enforcement became involved. Mother signed a statement describing the photographs, admitting to sending them to M.F., and describing conversations she had with M.F. about his sexual interests in the Child. On April 25, 2014, the trial court entered an emergency protective custody order placing the Child in the temporary custody of DCS.

         On July 16, 2014, a federal grand jury indicted Mother on charges of producing, distributing, and possessing child pornography. Mother later signed an agreement on September 11, 2015, pleading guilty to knowingly distributing child pornography. She remains incarcerated on that charge.

         DCS filed its petition to terminate Mother's parental rights on April 22, 2015. It sought termination on two grounds - severe child abuse, pursuant to Tenn. Code Ann. § 36-1-113(g)(4) and abandonment by an incarcerated parent, pursuant to Tenn. Code Ann. § 36-1-113(g)(1).

         The case was heard before the trial court on January 26, 2016. Because Mother was in federal custody at the time of the hearing, she appeared via telephone. The trial court entered an order finding clear and convincing evidence to terminate Mother's parental rights on the grounds of severe child abuse and abandonment by an incarcerated parent. By the same standard of evidence, the trial court found that termination is in the Child's best interest. Mother appeals.

         II.

         Mother filed a notice of appeal on March 11, 2016, raising the following issue, as taken verbatim from her brief:

Were [Mother's] due process rights violated by not being able to meaningfully participate in the trial telephonically because the telephone was inadequate for her to hear?

         III.

         On appeal, Mother argues, as taken verbatim from her brief, that

[d]ue process requires that the court provide an incarcerated parent with meaningful access to the court. By not providing sufficient telephonic access, the court deprived [her] of meaningful access.

         After reviewing the trial transcripts, as well as the pleadings and exhibits in the record, we have found no indication that Mother raised due process concerns at the trial. Mother never raised the issue that she was deprived of meaningful access to the court during trial. Mother has waived her right to raise this issue on appeal by not raising it with the trial court. In re Johnny E.K., No. E2009-01634-COA-R3-PT, 2010 WL 550911, at *5 (Tenn. Ct. App., ...


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