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In re Anna B.

Court of Appeals of Tennessee, Nashville

February 1, 2017

IN RE ANNA B. ET AL.

          Assigned on Briefs: January 4, 2017

         Appeal from the Chancery Court for Rutherford County No. 14CV-1498 J. Mark Rogers, Judge.

         This is 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.

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

          Daniel Lyn Graves, II, Murfreesboro, Tennessee, for the appellant, Christopher B.

          Kirk D. Catron, Murfreesboro, Tennessee, for the appellees, Angela P. and David P.

          Kenny Armstrong, J., delivered the opinion of the court, in which Charles D. Susano, Jr. and W. Neal McBrayer, JJ., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         There 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").[1] 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.

         After 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 entered.

         Concurrent 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.

         Criminal 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.

         On 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.

         The 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 appeals.

         II. Issues

         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 best interests.

         III. Standard of Review

         Under 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 (Tenn. 2002).

         Because 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.

         On 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).

         IV. Grounds for Termination of Parental Rights

         As 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.

         A. Severe Child Abuse

         Tennessee Code Annotated Section 36-1-113(g)(4) provides that termination of parental rights may ...


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