In re S.P . et al.
Assigned on Briefs November 1, 2016
from the Juvenile Court for Rutherford County No. TC2520T
Donna Scott Davenport, Judge.
termination of parental rights case, the Department of
Children's Services filed a petition to terminate the
rights of S.J.C.P. (Mother) with respect to her children,
S.D.P. and C.D.P. The trial court found clear and convincing
evidence of four grounds supporting termination. By the same
quantum of proof, the trial court held that termination of
Mother's rights is in the best interest of the children.
Mother appeals. We modify the trial court's judgment. As
modified, the judgment is affirmed.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed as Modified; Case Remanded
Moore, Murfreesboro, Tennessee, for appellant, S.J.C.P.
Herbert H. Slatery III, Attorney General and Reporter, and
Rachel E. Buckley, Assistant Attorney General, Nashville,
Tennessee, for the appellee, Tennessee Department of
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which Richard H. Dinkins and Arnold B. Goldin, JJ.,
CHARLES D. SUSANO, JR., JUDGE.
children were born in 2004 and 2008 respectively. In May
2013, Mother ceased living with Father. Thereafter, they
shared responsibility for the children. Mother lived out of
her car or with friends. Father was evicted from his home.
Later, the children lived with their maternal grandmother and
August 2014, DCS received a referral that the grandparents
had physically and psychologicially abused the children. Due
to Mother's drug use and her failure to provide housing
and basic necessities for the children, DCS filed a petition
to declare the children dependent and neglected and for
emergency temporary legal custody. The trial court entered a
protective custudy order, awarding custody of the children to
DCS. The children have remained in foster care since their
placement on August 27, 2014.
January 2015, the trial court entered an order, adjudicating
the children dependent and neglected. The court found that
Mother had abandoned the children by (1) failing to provide
for the care and necessities of the children, (2) failing to
provide a residence for the children, and (3) failing to
ensure that the children had a proper caretaker.
August 18, 2015, DCS filed a petition to terminate
Mother's parental rights. DCS alleged the following
grounds for termination: (1) abandonment by failure to visit
pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and
36-1-102(1)(A)(i), -102(1)(C), and -102(1)(E); (2)
abandonment by failure to provide a suitable home pursuant to
Tenn Code Ann. §§ 36-1-113(g)(1) and
36-1-102(1)(A)(ii); (3) substantial noncompliance with
permanency plan pursuant to Tenn. Code Ann. §§
36-1-113(g)(2) and 37-2-403(a)(2); and 4) persistence of
conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3).
DCS also asserted that termination of Mother's rights is
in the best interest of the children.
March 30, 2016, the trial court entered a final decree of
full guardianship terminating Mother's rights. The trial
court found clear and convincing evidence supporting each of
the four grounds alleged by DCS. The trial court also found
by the same standard of proof that termination is in the
children's best interest. Mother appeals.
filed a notice of appeal raising the following issues, as
taken verbatim from her brief:
Whether the [c]ourt below erred in finding abandonment [by]
failure to visit.
Whether the [c]ourt below erred in finding abandonment by
failure to provide a suitable home.
Whether the [c]ourt below erred in finding substantial
noncompliance with the Permanency Plan(s).
Whether the [c]ourt below erred in finding persistence of
Whether the [c]ourt below erred in finding that termination
is in the children's best interest.
(Paragraph numbering in original omitted.)
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).
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).
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).
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
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
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.