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In re S.P.

Court of Appeals of Tennessee, Nashville

January 25, 2017

In re S.P . et al.

          Assigned on Briefs November 1, 2016

         Appeal from the Juvenile Court for Rutherford County No. TC2520T Donna Scott Davenport, Judge.

         In this 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.[1] 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.

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

          Carl 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 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 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 her husband.

         In 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.

         In 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.

         On 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.

         On 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.

         II.

         Mother 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 conditions.

Whether the [c]ourt below erred in finding that termination is in the children's best interest.

(Paragraph numbering in original omitted.)

         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. ...


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