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In re Lydia N.-S.

Court of Appeals of Tennessee, Nashville

January 31, 2017

IN RE LYDIA N.-S. [1]

          Assigned on Briefs October 4, 2016

         Appeal from the Chancery Court for Williamson County No. 1805A Deanna B. Johnson, Chancellor

         The minor child at the center of this appeal was born on April 3, 2012, in El Paso, Texas. Mother and child moved to Nashville, Tennessee, three months later. Father subsequently moved to Delaware. While living in Delaware, Father pled guilty to two counts of rape and was sentenced to concurrent twenty-five year sentences beginning June of 2013. Mother married Stepfather in late 2013, and in October 2014, Stepfather and Mother filed a petition to terminate Father's parental rights and to allow Stepfather to adopt the child. The petition, as amended, alleged abandonment by failure to visit and failure to support, abandonment by failure to visit or support in the four months prior to Father's incarceration, and Father's incarceration under a sentence of ten or more years with the child being under eight years of age as grounds for termination. Following a trial at which Father, who was incarcerated, participated by telephone, the court terminated Father's parental rights on the grounds of abandonment and incarceration under a sentence of ten years or more and upon a finding that termination was in the child's best interest; the petition for adoption was also granted. Father appeals the termination of his rights, stating that the court erred in denying a motion to continue so he could appear in person and in determining that termination of Father's parental rights was in the best interest of the minor child. Discerning no reversible error, we affirm the judgment of the trial court as modified.

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

          Matthew J. Crigger, Brentwood, Tennessee, for the appellant, Jorge N.-S.

          Jonathan L. Miley, Nashville, Tennessee, for the appellee, Loren A. K. and Dillon D. K.

          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

         II. Factual & Procedural History

         Lydia N.-S. ["Lydia"] was born on April 3, 2012, to Loren K. ["Mother"] and Jorge N.-S. ["Father"] in El Paso, Texas; Mother and Father were not married. When Lydia was approximately three months old, she and Mother moved to Nashville, Tennessee. Mother and Father remained in contact, and Father saw Lydia twice when Mother returned to El Paso to visit family.

         Early in 2013, Father moved to Delaware. In June 2013, Father pled guilty to two counts of third degree rape and was sentenced to concurrent 25 year sentences that would be suspended after two years of mandatory incarceration "at supervision level 5, " followed by six months of work release "at supervision level 4, " six months of home confinement "at supervision level 4, " and two years "at supervision level 3."[2] Father was also required to register as a sex offender.

         Mother met Dillon K. ["Stepfather"] in January 2013, and they married in November 2013. On October 3, 2014, Mother and Stepfather filed a "Petition for Termination of Parental Rights and Adoption." As grounds for the termination of Father's rights, the petition alleged abandonment by willful failure to visit and willful failure to support, pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(i), as well as abandonment by failure to visit or support during the four months preceding his incarceration, pursuant to section 36-1-102(1)(A)(iv). The petition was amended to add that Father was confined in a correctional facility under a sentence of ten or more years when Lydia was under eight years of age, in accordance with Tennessee Code Annotated section 36-1-113(g)(6).

         On October 20, 2015, an agreed order was entered setting the trial for April 5, 2016. In the week preceding the hearing, Father filed a motion to continue the hearing until October 2016, at which time he expected to be out of prison and able to participate in the trial in person. As grounds for his motion, Father stated that he had been moved to a "less well-equipped" correctional facility and would only be able to participate by telephone for a two-hour time period. The motion was denied.

         At the trial on April 5, Father participated by telephone, and he, along with Mother, and Stepfather, testified. Four exhibits were entered into evidence, including Father's "Corrected Sentence Order, " Lydia's birth certificate, Mother and Stepfather's marriage certificate, and a photo album.[3] Father's counsel as well as the Guardian ad litem, were present during the trial.

         On April 20, the court entered a memorandum and order terminating Father's parental rights to Lydia on the ground of abandonment by willful failure to support during the four months preceding Father's incarceration and the ground of Father's confinement in a correctional facility under a sentence of ten years or more, and upon a finding that termination was in Lydia's best interest. The order also granted the petition for adoption.

         Father appeals, raising the following issues for our review:

1.Whether the trial court erred in denying [Father]'s motion to continue the final hearing?
2. Whether the trial court erred in determining that the termination of [Father]'s parental rights was in the best interests of the minor child?

         II. Standard of Review

         Parents have a fundamental right to the care, custody, and control of their children. 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). The statutes on termination of parental rights provide the only authority for a court to terminate a parent's rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be terminated only where a statutorily defined ground exists. Tennessee Code Annotated section 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one ground need be proved, so long as it is proved by clear and convincing evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

         Because the decision to terminate parental rights affects fundamental constitutional rights and carries grave consequences, courts must apply a higher standard of proof when adjudicating termination cases. Santosky, 455 U.S. at 766-69. A court may terminate a person's parental rights only if (1) the existence of at least one statutory ground is proved by clear and convincing evidence and (2) it is shown, also by clear and convincing evidence, that termination of the parent's rights is in the best interest of the child. Tenn. Code Ann.§ 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). 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.

         II. Analysis

         A. Motion to Continue

         Father first contends that the court erred in denying his motion to continue the trial. The motion was filed five days before trial and stated that Father had been transferred to a lower security facility that was "less well-equipped" and would only permit Father to participate by telephone during a two-hour time period; he argued that this made "conducting a termination hearing via telephone . . . very difficult logistically."

The court held a hearing on the motion and denied it, holding:
2. Pursuant to T.C.A. § 36-1-124, the Court has a statutory obligation to set termination of parental rights hearings, consistent with due process, expeditiously and at the earliest possible date to be given priority over all other civil litigation other than child protection services to provide permanency for children.
3. Pursuant to T.C.A. §36-1-113(k), [4] the Court may only extend a hearing for a termination of parental rights if the Court deems a delay is in the best interests of the minor child to do so, and the Court does not make such a finding in this case.[5]
4. The Father's right and opportunity to participate in the termination of parental rights trial by telephone is in compliance with T.C.A. 36-1-113 (f)(3)[6] and relevant case law in Tennessee and such telephonic participation protects his due process rights.
5. If and only if the father's participation in the termination of parental rights hearing by telephone is impossible or is not reasonable under the telephonic connection at the circumstances on the date of the trial shall this matter be continued to another date set by the Court.

         "The granting or denial of a motion for a continuance lies in the sound discretion of the court." Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997) (citing Moorehead v. State, 219 Tenn. 271, 409 S.W.2d 357, 358 (1966)). The court's ruling on such a motion will not be disturbed on appeal "unless the record clearly shows abuse of discretion and prejudice to the party seeking a continuance." Id. (citing State v. Strouth, 620 S.W.2d 467, 472 (Tenn. 1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982)). In In re Elizabeth D., this Court addressed whether a trial court abused its discretion in denying a motion to continue filed by a father who was incarcerated in another state and participated by phone in the hearing on the petition to terminate his parental rights. In that case, we noted that:

The standard to be applied in ruling on a motion to continue, as well as this court's review of the ruling was recently set forth in Tidwell v. Burkes:
Continuances are governed by Tennessee Code Annotated 20-7-101 (2009), which provides in pertinent part that continuances "may always be granted by the court, upon good cause shown, in any stage of the action." A ruling on a motion for continuance is a matter of discretion for the trial court and will not be disturbed absent a clear showing of abuse of that discretion. Decisions regarding the granting or denial of a continuance are fact-specific and should be viewed in the context of all existing circumstances present at the time of the party's request for continuance. In order to prove that a requested continuance is justified, the party requesting the continuance "must supply some „strong excuse' for postponing the trial date." When considering a motion for continuance, the following factors are relevant to the trial court's decision: "„(1) the length of time the proceeding has been pending, (2) the reason for the continuance, (3) the diligence of the party seeking the continuance, and (4) the prejudice to the requesting party if the continuance is not granted.'"
Tidwell v. Burkes, No. M2015-01270-COA-R3-CV, 2016 WL 3771553, at *5 (Tenn. Ct. App. July 8, 2016) (internal citations omitted).

No. E2015-02097-COA-R3-PT, 2016 WL 5334800, at *5 (Tenn. Ct. App. Sept. 23, 2016).

         Tennessee Code Annotated section 36-1-113(f)(3) vests the trial court with the responsibility to make arrangements for the trial to be conducted with or without the physical presence of an incarcerated parent and gives the court considerable discretion in that regard. Father has not cited to any evidence that the arrangements did not satisfy section 113(f)(3) or that the logistics caused any problems in the conduct of the trial. The transcript reflects that the proceedings were transmitted via telephone to Father; that the court instructed Father to let the court know if for any reason he could not hear; that Father participated and was able to respond to questions as they were asked; that Father's counsel was present and participated fully in the proceeding; and that Father was able to communicate with the court when he was unable ...


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