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In re Delilah G.

Court of Appeals of Tennessee, Knoxville

February 22, 2017

IN RE DELILAH G. [1]

          Assigned on Briefs October 4, 2016

         Appeal from the Juvenile Court for Knox County No. 145643 Timothy E. Irwin, Judge

         This is an appeal from an order terminating a mother's parental rights to her daughter, of whom the Department of Children's Services acquired custody following a referral of a drug exposed child and two referrals for medical maltreatment and nutritional neglect. The child's parents were later adjudicated to have committed severe abuse on the child. The Department subsequently petitioned to terminate the parental rights of both parents, and the court granted the petition on the ground of severe child abuse and after holding that termination of the parents' rights was in the best interest of the child. 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

          Gregory E. Bennett, Seymour, Tennessee, for the appellant, Sheena W.

          Herbert H. Slattery, III, Attorney General and Reporter; and M. Cameron Himes, for the appellee, the 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

         Delilah G. was born in June of 2012 to Sheena W. ["Mother"] and Mar-Ques G. ["Father"].[2] The Department of Children's Services ["DCS"] first became involved with Delilah at her birth, when DCS received a referral of a drug exposed infant, due to mother's use of marijuana during her pregnancy. Mother agreed to undergo treatment for substance abuse but failed to follow through, and the case was closed. In July of 2013, DCS received a referral based on medical maltreatment and nutritional neglect of Delilah; services were placed in the home, and the case was closed.

         On February 4, 2014, DCS initiated a proceeding in the Knox County Juvenile Court pursuant to Tennessee Code Annotated section 37-1-129-130, seeking to have Delilah determined to be dependent and neglected as a result of an inability to gain weight during her life and a diagnosis of severe failure to thrive "due, in large part, to the parents' failure to comply with medical providers and by the parents providing inaccurate information regarding [Delilah's] symptoms and intake while at home." A Protective Custody Order was entered, and DCS was awarded custody. On April 29 an adjudicatory hearing was held, wherein Mother and Father stipulated that Delilah was dependent and neglected within the meaning of the statute "due to substance abuse issues for both parents"; the court, inter alia, continued custody with DCS, approved a permanency plan which had been developed on February 28, and set the severe abuse hearing for June 5.[3]On December 17, 2014, the court entered an order setting forth its ruling from June 5 hearing; pertinent to the issues in this appeal, the court stated:

Based on all of the foregoing, the Court finds, by clear and convincing evidence, that the child, Delilah [G.], is the victim of Severe Abuse at the hands of her parents for their failure to provide sufficient calories to Delilah, failure to follow medical direction for Delilah, and failure to attend appointments as recommended by the child's medical providers; Delilah's subsequent failure to thrive; and the risk of developmental delay, brain damage or death to which the parents subjected Delilah. She is also dependent and neglected based on the foregoing, by clear and convincing evidence.

         The court continued her custody with DCS; Mother and Father were ordered to comply with a permanency plan which had been ratified on April 29.[4]

         DCS filed a petition to terminate both parents' rights to Delilah on June 9, 2015, alleging severe child abuse, substantial noncompliance with the permanency plan, and persistence of conditions. The court heard the matter over the course of four days: November 9, 2015, and February 25, March 7, and April 21, 2016. On May 24 the court entered an order terminating Mother's rights on the ground of severe child abuse and upon the holding that termination of her rights was in in Delilah's best interest; the court held that DCS had not sustained its burden of proof to establish persistence of conditions or non-compliance with the permanency plans. The court also found that it was in the best interest of Delilah that Mother's parental rights be terminated.

         Mother appeals, articulating the following issues:

I. Did the trial court err in finding by clear and convincing evidence that the Mother had committed severe abuse by her knowing exposure of a child to abuse or neglect or knowingly failing to protect a child from abuse or neglect that was likely to cause serious bodily injury or death as defined by Tennessee Code Annotated, Sections 36-1-113(g)(4) and 37-1-102(b)(21)(A)(i)?
II. Did the trial court err in finding by clear and convincing evidence that termination of the parental rights of the Mother was in the best interest of the child as defined by Tennessee Code Annotated, Section 36-1-113(c)?

         DISCUSSION

         I. 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.W.3d 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. Tenn. Code Ann. ' 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.

         Neither party appeals the trial court's dismissal of the grounds of substantial non-compliance with the permanency plan or persistence of conditions.[5] Accordingly, we proceed to review the ...


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