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In re Renaldo M.

Court of Appeals of Tennessee, Nashville

December 30, 2016

IN RE RENALDO M. JR.[1], ET AL.

          Assigned on Briefs July 1, 2016

         Appeal from the Juvenile Court for Montgomery County No. MCJVDNCV104, MCJVDNCV105, MCJVDNCV106 Tim Barnes, Judge

         The trial court terminated the parental rights of a Mother to her three children on the grounds of abandonment by engaging in conduct evidencing a wanton disregard for the children's welfare and persistence of conditions. Mother appeals, contending that the evidence is insufficient to sustain the termination of her rights. Concluding that the evidence of Mother's pre-incarceration conduct does not clearly and convincingly prove a wanton disregard for the children's welfare, we reverse the trial court's finding in that regard. There is clear and convincing evidence supporting holding that the conditions which led to the children's removal from Mother's custody persisted and that termination of her rights is in the best interest of the children; accordingly, we affirm the termination of Mother's rights on that ground.

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

          Gregory D. Smith, Clarksville, Tennessee, for the appellant, Teresa K.

          Herbert H. Slatery, III, Attorney General and Reporter; and Alexander S. Rieger, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services

          Richard H. Dinkins, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Arnold B. Goldin, J., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual/Procedural History

         Three children, Renaldo M., Jr. (born February 2008), Brandon M. (born January 2009), and Bridgette K. (born March 2012), were born to Teresa K. ("Mother") and Renaldo M. ("Father"). In May 2012, a dependency and neglect proceeding based on allegations of environmental neglect was initiated in Montgomery County Juvenile Court by the Department of Children's Services ("DCS"), and on May 21 the children were placed into DCS custody.[2] At the adjudicatory hearing held on September 4, 2012, the children were found to be dependent and neglected due to environmental neglect and remained in DCS custody. On May 8, 2013, DCS filed a petition to terminate Mother's parental rights on the following grounds: (1) abandonment by failure to visit, (2) abandonment by failure to support, (3) abandonment by failure to provide a suitable home, (4) substantial non-compliance with the permanency plan, (5) persistence of conditions, and (6) mental incompetence.[3] DCS voluntarily dismissed the termination petition on February 19, 2014.

         On January 2, 2015, Mother was arrested on a theft of property charge and remained in jail until February 5, 2015. DCS filed a new petition to terminate Mother's and Father's parental rights on January 26, 2015, alleging as the grounds for termination abandonment by incarceration - wanton disregard and persistence of conditions.[4]

         The case was heard on July 27 and August 27, 2015. In an order entered on February 9, 2016, the trial court sustained the grounds of abandonment and persistence of conditions and, after finding that termination was in the children's best interest, terminated Mother's and Father's rights. Mother appeals, contending that "[t]he evidence of record is insufficient, as a matter of law, to sustain the Trial Court's finding that the State met the Tenn. Code Ann. § 36-1-113 criteria for terminating [Mother's] parental rights to [the children] by clear and convincing evidence."[5]

          II. Standard of Review

         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 (1972); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep't of Children's Services v. C.H.K., 154 S.W3d 586, 589 (Tenn. Ct. App. 2004). Our termination statues 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., IV, No. M2004-00999-COA-R3-PT, 2005 WL 1021618, *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A party seeking to terminate the parental rights of a biological parent must prove at least one of the statutory grounds for termination. Tenn. Code Ann. § 36-1-113(c)(1). In addition, the party must prove that termination of the parental rights of the biological parent is in the child's best interest. Tenn. Code Ann. § 36-1-113(c)(2).

         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 766-69. Thus, both the grounds for termination and the best interest inquiry must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Clear and convincing evidence eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence. Hodges v. S. C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992). In light of the heightened standard of proof in these cases, a reviewing court must adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must then determine whether the facts, as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements necessary to terminate parental rights. Id.

         III. Abandonment by Incarceration - Wanton Disregard

         Tennessee Code Annotated § 36-1-113(g)(1) designates abandonment, as defined at section 36-1-102, as a ground for terminating parental rights. Tennessee Code Annotated § 36-1-102 defines "abandonment" for this purpose as follows:

A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or . . . during all or part of the four (4) months immediately preceding the institution of such action or proceeding, . . . or the parent or guardian has engaged in conduct prior to incarceration that exhibits wanton disregard for the welfare of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2014). This court has stated that Tennessee Code Annotated § 36-1-102(1)(A)(iv) "reflects the commonsense notion that parental incarceration is a strong indicator that there may be other problems in the home that threaten the welfare of the child." In re Audrey S., 182 S.W.3d 838, 866 (Tenn. Ct. App. 2005). Although "[a] parent's decision to engage in conduct that carries with it the risk of incarceration is itself indicative that the parent may not be fit to care for the child, " incarceration alone does not satisfy the test for abandonment under section 36-1-102(1)(A)(iv). Id. To sustain the ground, the court must find "by clear and convincing evidence, that the parent's pre-incarceration conduct displayed a wanton disregard for the welfare of the child." Id. Accordingly, a parent's incarceration is "a triggering mechanism" that allows the court to "take a closer look at the child's situation to determine whether the parental behavior that resulted in incarceration is part of a broader pattern of conduct that renders the parent unfit or poses a risk of substantial harm to the welfare of the child." Id.

         The pre-incarceration conduct referred to in Tennessee Code Annotated § 36-1-102(1)(A)(iv) "is not limited to acts during the four-month period immediately preceding the incarceration." In re Jeremiah T., No. E2008-02099-COA-R3-PT, 2009 WL 1162860, at *8 (Tenn. Ct. App. Apr. 30, 2009) (citing In re Audrey S., 182 S.W.3d at 871). "It is well-established that probation violations, repeated incarceration, criminal behavior, substance abuse, and the failure to provide adequate support or supervision for a child can, alone or in combination, constitute conduct that exhibits a wanton disregard for the child's welfare." In re C.L.D., No. M2008-02805-COA-R3-PT, 2009 WL 1684667, at *6 (Tenn. Ct. App. June 15, 2009) (citing In re Audrey S., 182 S.W.3d at 868).

         It is undisputed that Mother was incarcerated at the time DCS filed the petition; the specific issue is whether Mother's conduct prior to incarceration exhibited a wanton disregard for the welfare of the children. Relative to this ground, the termination order concluded:

Subsequent to the children's placement in foster care, [Mother] . . . engaged in criminal behavior that led to [her] incarceration in January 2015 for charges related to burglary. [Mother was] ultimately convicted of theft for these charges. Additionally, thereafter [Mother . . . was] arrested, incarcerated, and convicted of contributing to the delinquency of a minor. . . . [Mother] knew that [her] children were in foster care and the tasks and requirements that needed to be completed in order to reunify with the children. [She] was also aware that [her] failure to do so could lead to termination of [her] parental rights. Despite this knowledge and the efforts of DCS to assist [her] in reunifying with the children, [Mother] . . . continued to fail to comply with the Department and the orders of the Juvenile Court as well as continued to engage in criminal activity which led to the delinquency of a minor. The Court finds that this conduct shows a disregard for the welfare of the children.
Additionally, the Court finds that the conduct of [Mother] in allowing unrelated adults in and out of the family home, which potentially led to the theft of [her] children's medication on two occasions, domestic violence incidents in the home, and drinking and partying in the home, shows the [Mother's] disregard for the welfare of [her] children. The Court finds that the [Mother] chose to engage in this conduct rather than concentrating on [her] parenting and reunifying with [her] children. In addition, the
[Mother's] continual violation of this Court's orders regarding unrelated adults and animals in the home exhibits a complete disregard of the children's welfare . . . .

         On November 23, 2014, Mother engaged in behavior that ultimately led to her arrest and class A misdemeanor convictions for theft of property valued at $500 or less and contributing to the delinquency of a minor.[6] Although the arrests for these offenses occurred on two separate occasions, the judgment sheets, admitted into evidence during the hearing, indicate that the conduct giving rise to each conviction occurred on November 23, 2014. The only additional evidence in the record that relates to the nature of these two convictions is the testimony of Mr. Ernest Williams, Social Service Family Service Worker employed by DCS, that the contributing to the delinquency of a minor conviction was the result of one of Mother's children, who is not subject to this proceeding, being present in the home in which the stolen property was located. The charges arising from this incident alone do not support the trial court's finding that Mother "continued to engage in criminal activity which led to the delinquency of a minor."

         In the termination order, the trial court also cites Mother's "continual violation of this Court's orders regarding unrelated adults and animals in the home" as showing wanton disregard for the children. As previously mentioned, only Mother's conduct prior to incarceration, which occurred on January 2, 2015, is relevant to the determination of whether Mother exhibited a wanton disregard for the children.

          The trial court entered an interim review order on December 8, 2014 (the "December 8th order"), stating that "[b]ased on a domestic violence incident in the home involving Donald Doss, who is reportedly residing in the home, the Court orders that the mother and father shall allow no contact, either direct or indirect, and the parents shall ensure that Mr. Doss shall not reside in the family home." Mr. Williams testified that on December 11, 2014, he "observed Mr. Doss exiting the bathroom" at the home. No other evidence was offered to show that Mr. Doss was in the home prior to Mother's arrest.

         The December 8th order also provided that "any person who is a frequent overnight guest in the home, must cooperate with and comply with all requests concerning drug screening and background checks." In the termination order, the trial court found that Mother did not comply with this provision because she allowed three unrelated adults into the home: "Ju-Ju, an underage male who [Father] was drinking and =partying' with; Gordo O'Connor, an individual who had previous ...


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