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In re A.B.

Court of Appeals of Tennessee, Knoxville

January 11, 2017

In re A.B. et al.

          Session October 19, 2016

         Appeal from the Juvenile Court for Cumberland County No. 2014-JV-4661 Larry M. Warner, Judge.

         This is a termination of parental rights case. On December 17, 2014, the Department of Children's Services filed a petition to terminate the parental rights of M.L.F. (Mother) and H.W.B. (Father) with respect to their two children, A.M.B. (Child 1) and O.R.F. (Child 2) (collectively the Children). As to Mother, the trial court found clear and convincing evidence of three grounds supporting termination - abandonment by failure to establish a suitable home, substantial noncompliance with permanency plans, and persistence of conditions.[1] By the same quantum of proof, the trial court found that termination of Mother's rights is in the best interest of the Children. As to Father, the trial court held that DCS had failed to prove, by clear and convincing evidence, the alleged grounds of abandonment by wanton disregard, substantial noncompliance with permanency plans, and grounds applicable to a putative father.[2] Consequently, the court declined to terminate Father's parental rights. Mother and DCS appeal. We reverse the trial court's holding as to Father and affirm the court's termination of Mother's rights.

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

          Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor General, and Kathryn A. Baker, Assistant Attorney General, Nashville, Tennessee, for the appellant, Tennessee Department of Children's Services.

          Sherrill Rhea, Crossville, Tennessee, for appellee, M.L.F.

          Jonathan R. Hamby, Crossville, Tennessee, for appellee, H.W.B.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         Child 1 was born on February 10, 2009, and Child 2 was born on July 9, 2010. In 2009, Father was on probation for a drug charge to which he had pleaded guilty. In July 2009, he was found guilty of violating his probation. In March 2010, Father was arrested for driving on a suspended license. When Father was arrested, he had $3, 795 in cash with him. After Father bonded out of jail, the police investigated him due to their belief that his cash was "drug money." This investigation led to the discovery of Oxycodone in a vehicle on his property. Father was arrested for violation of probation. He was charged with possession for sale of a schedule II drug and possession of a schedule II drug for delivery. He has been continuously incarcerated since April 5, 2010. On October 8, 2010, Father pleaded guilty to a January 2010 charge of theft of property over $1, 000. He also pleaded guilty to the charges of possession of a schedule II drug for sale and for delivery. The criminal court sentenced him to two years for the theft charge and six years for the drug offenses. In addition to the state charges, Father was indicted on federal charges for conspiracy to transport and deliver and trafficking of Oxycodone, Alprazolam, and Hydocodone. Father pleaded guilty to these federal charges, receiving a seventy-five month sentence.

         In January 2014, DCS received a referral that Mother was using drugs. Mother had previously been in a drug rehab program, and she agreed to return to the program. On February 6, 2014, DCS contacted a rehab program on Mother's behalf. That same day, Mother was arrested on charges of public intoxication, simple possession of a schedule IV drug, and the manufacture, delivery, and sale of methamphetamine.

         Following Mother's arrest, DCS filed a petition to declare the Children dependent and neglected and for emergency temporary legal custody. The trial court entered a protective custody order and placed the children in the custody of DCS due to dependency and neglect. The Children were placed with a foster family and have been with that family since their placement.

         DCS created multiple permanency plans for Mother and Father. The trial court ratified permanency plans on May 23, 2014, October 3, 2014, and January 9, 2015. Each plan had as its goal return to parents/adoption. These plans sought to ensure that, if the Children returned to Mother or Father, they would have a stable home environment, drug free parents, an environment free from legal stressors, and appropriate parenting.

         On December 17, 2014, DCS filed a petition to terminate the parental rights of both parents. In its petition, DCS alleged the following grounds for termination of Mother's rights: (1) abandonment due to her failure to support the Children pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A); (2) abandonment as a result of Mother's failure to provide a suitable home pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii); (3) Mother's substantial noncompliance with permanency plans pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and (4) persistence of conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). In the same petition, DCS alleged grounds for termination of Father's rights: (1) failure to establish paternity pursuant to Tenn. Code Ann. § 36-1-113(g)(9); (2) abandonment by wanton disregard pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and 36-1-102(1)(A)(iv); (3) substantial noncompliance with permanency plans pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and (4) persistence of conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). DCS asserted that termination of the parents' rights is in the best interest of the Children.

         On February 10, 2016, the trial court entered its order terminating Mother's parental rights after finding clear and convincing evidence supporting three grounds alleged by DCS. In addition, the trial court held that there was clear and convincing evidence that termination of Mother's rights was in the Children's best interest. As to Father, the trial court held that DCS failed to prove by clear and convincing evidence that one or more grounds existed to terminate his rights. Mother and DCS appeal.

         II.

         DCS filed a notice of appeal on March 8, 2016 raising the following issues, as taken verbatim from its brief:

1. Whether the juvenile court erred in finding that the Department of Children's Services had not proven by clear and convincing evidence that grounds exist to terminate Father's parental rights.
2. Whether the Department of Children's Services presented clear and convincing evidence that termination of Father's parental rights is in the best interest of the Children[.]

         Mother filed a notice of appeal on March 9, 2016 raising the following issues, as taken verbatim from her brief:

1. Whether the juvenile court erred in finding that the Department of Children's Services had proven by clear and convincing evidence that grounds exist to terminate Mother's parental rights.
2. Whether the juvenile court erred by finding clear and convincing evidence that termination of Mother's parental rights was in the Children's best interest.

         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.

         This court has previously stated that,

[t]he ultimate goal of every proceeding involving the care and custody of a child is to ascertain and promote the child's best interests. However, as important as these interests are, they do not dominate every phase of a termination of parental rights proceeding. The best interests of the child do not become the paramount consideration until the trial court has determined that the parent is unfit based on clear and convincing evidence of one or more of the grounds for termination listed in Tenn. Code Ann. § 36-1-113(g).

In re Audrey S., 182 S.W.3d at 877. In the present action, the trial court found, by clear and convincing evidence, three grounds to terminate Mother's rights. The trial court, however, determined that DCS failed to prove by clear and convincing evidence that Father's rights should be terminated. As previously stated in this opinion, we are required to review all of the trial court's findings with respect to grounds and best interest "regardless of whether the parent challenges the findings on appeal." In re Carrington, 483 S.W.3d at 525-26.

         V.

         A.

         When analyzing the first ground for terminating Mother's rights - failure to establish a suitable home - the ...


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