Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re John J.

Court of Appeals of Tennessee, Nashville

February 17, 2017

IN RE JOHN J.

          Assigned on Briefs November 1, 2016

         Appeal from the Juvenile Court for White County No. 4151, JV820 Sam E. Benningfield, Jr., Judge[1]

         This is an appeal from an order terminating a Mother's parental rights to her son. The Department of Children's Services filed a petition to have the child declared dependent and neglected when he was observed with burn marks on his thigh and fingers. He was adjudicated to be dependent and neglected, and custody was given to the Department. A petition to terminate Mother's parental rights was subsequently filed and, following a trial, the court held that Mother had abandoned the child by failing to visit him and by engaging in behavior which exhibited a wanton disregard for the child's welfare; the court also determined that termination of Mother's rights was in the child's best interest. Mother appeals, contending that the court erred in holding that termination of her rights was in the child's best interest. After a thorough review of the record, we affirm the judgment of the trial court in all respects.

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

          Kelsey Austin Miller, Cookeville, Tennessee, for the appellant, Karrie S., also known as Karrie N.

          Herbert H. Slatery, III, Attorney General and Reporter; Alexander S. Rieger, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          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.

         John J. was born in November 2006 to Karrie S. ["Mother"] and Casey J. ["Father"]. The Department of Children's Services ["DCS"] received a referral on August 13, 2013, that John J. had burn marks from a cigarette on his inner thigh and fingers that were allegedly inflicted by Mother; at the time, Father was incarcerated. Pursuant to a petition filed by DCS on August 26, 2013 to have John J. declared dependent and neglected, a Kinship Protective Custody Order was entered in Juvenile Court of White County on August 27, in which John J. was brought into the protective custody of the court and placed with his maternal great-grandmother. The order was entered pending the preliminary hearing on DCS's petition to adjudicate John J. dependent and neglected. On September 5, a preliminary hearing order was entered, continuing the hearing on DCS's petition and granting temporary custody of John J. to his paternal grandparents, effective September 3.

         The hearing on the petition was held on October 8, 2013. Each parent stipulated that John J. was dependent and neglected, and by order entered October 10, he was so adjudicated. The order continued John J.'s placement with his paternal grandparents. In March 2014, based upon an incident with the paternal grandparents, DCS filed a petition for temporary legal custody of John J. and the court ordered him to be placed in foster care on March 18, where he has remained.[2] In April 2014, Mother was incarcerated and in August 2014 her probation on an eight year sentence imposed for a prior conviction was revoked; she remained incarcerated at the time of trial but was present in court during the termination hearing.

         On June 12, 2015, DCS filed a petition to terminate Mother and Father's parental rights to John J. on the grounds of abandonment by willful failure to visit or support in the four months preceding their incarceration and abandonment by wanton disregard for the welfare of the child, pursuant to Tennessee Code Annotated section 36-1-116(g)(1); - 102(1)(A)(iv).[3] The trial was held on April 15, 2016, at which the following witnesses testified: Mother, Father, DCS case manager Felicity Lankford, DCS case manager Jamesia Evans, and Claire Timland, a supervisor at Youth Villages, where John J. received counseling services while he was in foster care. The court issued an oral ruling at the conclusion of the trial, and a "Final Decree of Guardianship" was entered on May 12, 2016, terminating the parental rights of both parents on the ground of abandonment by wanton disregard and of Mother on the ground of abandonment by willful failure to visit, and upon a finding that termination of both parents' rights was in the child's best interest.

         Mother appeals, [4] articulating the following issues for our review:

1. Whether the Department of Children's Services provided reasonable efforts to the Mother, or in the alternative whether the Department of Children's Services should be relieved of reasonable efforts upon the incarceration of a parent.
2. Whether the Trial Court erred in determining there was clear and convincing evidence that the termination of Mother's parental rights was in the best interest 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. Tennessee Code Annotated section 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.

         III. Analysis

         A. Grounds for Termination

         Mother does not challenge the court's holdings that the grounds for termination were established by the proof. Nevertheless, mindful of the instruction set forth by our Supreme Court 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, " we proceed to address the sufficiency of the evidence to support the grounds for termination. In Re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016), cert. denied sub nom. Vanessa G. v. Tennessee Dep't of Children's Servs., 137 S.Ct. 44, 196 L.Ed.2d 28 (2016) (footnote omitted).

         As grounds for termination of Mother's rights, the petition asserted abandonment by willful failure to visit, by willful failure to support, and by engaging in conduct exhibiting a wanton disregard for the welfare of John J. The trial court made several factual findings relating to its determination that DCS had established that Mother abandoned John J. and held:

[T]he Respondent, [Mother], has willfully abandoned the minor child for more than four (4) consecutive months prior to her incarceration; that she failed to visit in the four months prior to her incarceration; that prior to incarceration she engaged in conduct exhibiting a wanton disregard for the welfare of the child; . . . . [5]

         Abandonment is identified as a ground for termination in Tennessee Code Annotated section 36-1-116(g)(1) and is defined in section 36-1-102(1)(A), which reads in pertinent part:

For purposes of terminating the parental or guardian rights of a parent or parents or a guardian or guardians of a child to that child in order to make that child available for adoption, "abandonment" means that:
(iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child.

Tenn. Code Ann. § 36-1-102(1)(A)(iv).[6]

         Evidence relating to Mother's visitation with John J. consisted of her testimony as well as that of Ms. Lankford. Mother testified that she had been incarcerated since April 11, 2014; that she had visited with John J. on one occasion in February 2014; that during her visits, she bought John. J. "food, drinks" and "would usually go to the Dollar Store and buy him a toy or whatever, coloring books, balls";[7] that between February and April 2014, she talked to him a couple of times when he was in foster care.

         Felicity Lankford, the DCS case manager who worked with John J.'s family from August 2013 until March of 2014, testified that Mother was not in jail during that time; that she "had trouble contacting [Mother] and locating her . . . [w]e just had trouble trying to get in touch with her"; that she set up two visits for Mother in February 2014, neither of which took place, [8] and that she was not aware of any visits Mother had with John J.

         While Mother testified that she had one visit in February 2014, Ms. Lankford testified that there were no visits at any time. Construing this evidence in favor of Mother, however, it shows that Mother engaged in no more than token visitation with the meaning of Tennessee Code Annotated section 36-1-102(1)(C)[9] in the relevant period and supports the court's determination that Mother abandoned John J. by willfully failing to visit during the four months preceding her incarceration.

         Evidence relating to Mother's conduct exhibiting a wanton disregard for John J.'s welfare prior to incarceration consisted of her testimony and the records of her convictions. Mother testified that she was convicted of possession of drug paraphernalia in November 2008; that in August 2010, she was convicted of criminal impersonation and delivery of more than half a gram of methamphetamine, for which she was given an eight year sentence to be served on probation; that in October 2012, she plead guilty to simple possession of a Schedule VI controlled substance; that her probation was revoked on August 11, 2014 for "driving on suspended [license] and theft under [$]500." Mother also testified that she was aware that she had a duty to support John J. but could not do so due to her drug and alcohol addiction; that she previously "s[old] drugs to make money"; and that prior to her incarceration, she drank six to twelve beers a day since she was 15, used methamphetamines off and on since she was 18 and was using daily prior to her incarceration, and abused prescription drugs by taking five to six Xanax a day since she was 29.[10] The order adjudicating John J. dependent and neglected also recites that Mother was involved in a domestic altercation with a paramour who lived in the home who had struck her and pushed her down; that paramour had been previously arrested for domestic assault.

         There is clear and convincing evidence supporting the court's factual findings and its holding that Mother abandoned John J. by exhibiting wanton disregard for his welfare.

         Accordingly, we affirm the trial court's holding that Mother abandoned John J. by failing to visit him in the four months preceding her incarceration and by engaging in conduct that exhibits a wanton disregard for his welfare.

         B. Best Interest

         Once a ground for termination has been proven by clear and convincing evidence, the trial court must then determine whether it is in the best interest of the child for the parent's rights to be terminated, again using the clear and convincing evidence standard. In re Valentine, 79 S.W.3d at 546. The Legislature has set out a list of factors at Tennessee Code Annotated section 36-1-113(i) for the courts to follow in determining the child's best interest.[11] The list of factors in the statute "is not exhaustive, and the statute does not require every factor to appear before a court can find that termination is in a child's best interest." In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing Tenn. Dept. of Children's Svcs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)). As we consider this issue, we are also mindful of the following instruction in White v. Moody:

[A]scertaining a child's best interests in a termination proceeding is a fact-intensive inquiry requiring the courts to weigh the evidence regarding the statutory factors, as well as any other relevant factors, to determine whether irrevocably severing the relationship between the parent and the child is in the child's best interests. The child's best interests must be viewed from the child's, rather than the parent's, perspective.

171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted).

         The court made findings of fact as to factors (4), (5), and (9) in holding that termination of Mother's parental rights was in the best interest of John J. Mother does not take issue with the specific findings but argues that, because DCS did not provide "reasonable efforts, " the court erred ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.