IN RE ANNA B. ET AL.
Assigned on Briefs: January 4, 2017
from the Chancery Court for Rutherford County No. 14CV-1498
J. Mark Rogers, Judge.
a termination of parental rights case. Father appeals the
termination of his parental rights, to two minor children, on
the grounds of: (1) severe child abuse, Tenn. Code Ann.
§§ 36-1-113(g)(4) and 37-1-102(22)(C); and (2)
abandonment by willful failure to support and willful failure
to visit, Tenn. Code Ann. §§ 36-1-113(g)(1) and
36-1-102(1)(A)(i). Father also appeals the trial court's
finding that termination of his parental rights is in the
children's best interests. Because Appellees did not meet
their burden to show that Father willfully failed to provide
support for the children, we reverse the trial court's
finding as to the ground of abandonment by willful failure to
support. The trial court's order is otherwise affirmed.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Reversed in Part, Affirmed in Part, and Remanded.
Lyn Graves, II, Murfreesboro, Tennessee, for the appellant,
D. Catron, Murfreesboro, Tennessee, for the appellees, Angela
P. and David P.
Armstrong, J., delivered the opinion of the court, in which
Charles D. Susano, Jr. and W. Neal McBrayer, JJ., joined.
are two minor children at issue in this case, Anna B. (d.o.b.
October of 2002) and Ella B. (d.o.b. August of 2004)
(together, the "Children"). The Children's parents
are Appellant Christopher B. ("Father") and Angela
P. ("Mother"). Mother and Father were married when
the Children were born. As discussed below, Mother and Father
are divorced, and Mother has remarried David P. (together
with Mother, "Appellees"). At the time Mother and
Father were married, Mother had a child from a previous
relationship, Jenna B., who is now an adult.
discovering that Father had sexually abused Jenna B., who was
approximately eleven years old at the time of the abuse,
Mother filed a petition for an order of protection on May 24,
2010. The trial court issued an ex parte order, enjoining
Father from having any contact with the Children, Jenna B.,
or Mother. O n May 25, 2010, Mother filed a complaint for
divorce and for a temporary restraining order against Father;
the trial court issued a temporary restraining order, which
prohibited Father from having any contact with the Children.
Thereafter, on July 27, 2010, Mother and Father entered into
an agreed order, which allowed Father supervised visitation
with the Children for four hours per month. On August 11,
2011, the parties were granted a divorce. The trial court
also extended its order of protection until November 6, 2013;
after that date, no further orders of protection were
with their divorce, Mother and Father entered into a Marital
Dissolution Agreement and an agreed Permanent Parenting Plan.
The parenting plan named Mother as the Children's primary
residential parent, and Father was prohibited from any
contact with the Children. Father was ordered to pay $415 per
month in child support. At the time the parenting plan was
entered, the trial court found that Father owed $4, 140 in
child support arrears.
charges were brought against Father stemming from the sexual
abuse against Jenna B. Father was charged with five counts of
rape of a child in Cannon County and three counts of
soliciting sexual exploitation of a minor in Rutherford
County. As to the Cannon County charges, Father entered a
best interest plea to two reduced charges of attempted
aggravated sexual battery, a Class C Felony. Tenn. Code Ann.
§39-13-504. Under his plea agreement, Father received a
suspended sentence of six years for each count, to run
consecutively. As part of his Cannon County plea agreement,
Father agreed that he would "have no contact with [the]
victim or [the] victim's family." Concerning the
Rutherford County charges, Father pled guilty to one count of
soliciting sexual exploitation of a minor, a Class B Felony.
Tenn. Code Ann. §39-13-529. Father was sentenced to ten
years, with one year of incarceration in Rutherford County,
which he served from October of 2010 to July of 2011.
Father's remaining sentence was suspended, and he was
placed on probation for nine years. As a condition of his
Rutherford County plea agreement, Father agreed that "he
will have no unsupervised contact with any minor children,
including his own, the supervisor will be approved by the
mother of the children prior to any visitation." Father
was still on probation at the time of the hearing in this
case. As a condition of his pleas, Father was required to
register as a sex offender.
October 16, 2014, Appellees filed a petition to terminate
Father's parental rights to the Children and for
step-parent adoption. As grounds for termination of
Father's parental rights, Appellees alleged abandonment,
by willful failure to visit and willful failure to support,
and severe child abuse. On November 14, 2014, Father filed an
answer, wherein he contested Appellees' petition for
termination of his parental rights. Thereafter, the matter
was continued for purposes of appointing a guardian ad litem
for the Children; the guardian ad litem was appointed on May
8, 2015. Immediately before the appointment of the guardian
ad litem, on May 6, 2015, Father filed a motion for
supervised visitation with the Children. By order of
September 18, 2015, the trial court denied Father's
motion for supervised visitation, finding that it did not
have jurisdiction over modification of the parenting plan.
trial court heard the petition to terminate Father's
parental rights on December 7, 2015. Final arguments were
heard on February 17, 2016. By order of March 21, 2016, the
trial court terminated Father's parental rights on
grounds of abandonment, by willful failure to support and
willful failure to visit, and severe child abuse. The trial
court also found that termination of Father's parental
rights is in the Children's best interests. Father
raises two issues as stated in his brief:
1.Whether the trial court erred in finding grounds to
terminate Biological Father's parental rights.
2. Whether the trial court erred in finding that termination
of Biological Father's rights was in the child[ren]'s
Standard of Review
both the United States and Tennessee Constitutions, 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); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174 (Tenn. 1996). Thus, the state may interfere with parental
rights only when a compelling interest exists.
Nash-Putnam, 921 S.W.2d at 174-75 (citing
Santosky v. Kramer, 455 U.S. 745 (1982)). Our
termination statutes 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., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1
021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn.
Code Ann. § 36-1-113(g)). A person seeking to terminate
parental rights must prove both the existence of 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 D.L.B., 118 S.W.3d 360, 367
(Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546
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 769.
Accordingly, both the grounds for termination and that
termination of parental rights is in the child's best
interest must be established by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re
Valentine, 79 S.W.3d at 546. Clear and convincing
evidence "establishes that the truth of the facts
asserted is highly probable . . . and eliminates any serious
or substantial doubt about the correctness of the conclusions
drawn from the evidence." In re M.J.B., 140
S.W.3d 643, 653 (Tenn. Ct. App. 2004), perm. app.
denied (Tenn. July 12, 2004). Such evidence
"produces in a fact-finder's mind a firm belief or
conviction regarding the truth of the facts sought to be
established." Id. at 653.
appeal, we review the trial court's findings of fact
"de novo on the record, with a presumption of
correctness of the findings, unless the preponderance of the
evidence is otherwise." In re Taylor B.W., 397
S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P. 13(d). We then
make our "own determination regarding whether the facts,
either as found by the trial court or as supported by a
preponderance of the evidence, provide clear and convincing
evidence that supports all the elements of the termination
claim." In re Bernard T., 319 S.W.3d 586,
596-97 (Tenn. 2010). We review the trial court's
conclusions of law de novo with no presumption of
correctness. In re J.C.D., 254 S.W.3d 432, 439
(Tenn. Ct. App. 2007).
Grounds for Termination of Parental Rights
noted earlier, the trial court relied on the following
statutory grounds in terminating Appellant's parental
rights: (1) Severe Child Abuse under Tennessee Code Annotated
Section 36-1-113(g)(4); (2) abandonment by willful failure to
pay support and willful failure to visit, Tenn. Code Ann.
§§ 36-1-113(g)(1) and 36-1-102(1)(A)(i). Although
only one ground must be proven by clear and convincing
evidence in order to terminate a parent's rights, the
Tennessee Supreme Court has instructed this Court to review
every ground relied upon by the trial court to terminate
parental rights in order to prevent "unnecessary remands
of cases." In re Angela E., 303 S.W.3d 240, 251
n.14 (Tenn. 2010). Here, we note that, although Appellant
states his first issue broadly, i.e., "[w]hether the
trial court erred in finding grounds to terminate
[Father's] parental rights, " his appellate brief
fails to address the severe child abuse ground. Tennessee
Rule of Appellate Procedure 13(b) provides that appellate
review will generally only extend to those issues presented
for review. Although an issue may have been presented at
trial, "a party's failure to brief it ordinarily
constitutes waiver or abandonment of the issue."
Mosby v. Colson, No. W2006-00490-COA-R3-CV, 2006 WL
2354763, at *10 (Tenn. Ct. App. August 14, 2006) (other
citations omitted); see also Newcomb v. Kohler Co.,
222 S.W.3d 368, 401 (Tenn.Ct.App.2006) (failure "to cite
to any authority or to construct an argument regarding [a]
position on appeal" constitutes a waiver of the issue);
Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn.Ct.App.2000)
("Courts have routinely held that the failure to make
appropriate references to the record and to cite relevant
authority in the argument section of the brief as required by
Rule 27(a)(7) constitutes a waiver of the issue.").
However, in the recent case of In re Carrington H.,
the Tennessee Supreme Court carved an exception to the
general rule of waiver, which exception is applicable in
termination of parental rights cases, to wit:
Although . . . issues not raised in the Court of Appeals
generally will not be considered by this Court, there are
exceptions to this general rule. Indeed, we recognized
recently that "Rules 13(b) and 36(a) of the Tennessee
Rules of Appellate Procedure, considered together, give
appellate courts considerable discretion to consider issues
that have not been properly presented in order to achieve
fairness and justice." In re Kaliyah, 455
S.W.3d at 540 (footnote omitted). We exercised this
discretion in that case to consider an issue that DCS had not
raised in either the trial court or the Court of Appeals.
Id. DCS's argument on this point is
unpersuasive. Therefore, consistent with our statement in
In re Angela E., we 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 interests, regardless of whether the parent
challenges these findings on appeal. 303 S.W.3d at 251 n. 14.
In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn.
2016). Accordingly, this Court will address both of the
statutory grounds that the trial court relied on in
terminating Father's parental rights.
Severe Child Abuse
Code Annotated Section 36-1-113(g)(4) provides that
termination of parental rights may ...