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In re Promise A.

Court of Appeals of Tennessee, Nashville

March 16, 2017

IN RE PROMISE A., ET AL.[1]

          Session August 18, 2016

         Appeal from the Juvenile Court for Montgomery County No. 151290, 151291 Timothy K. Barnes, Judge

         The Department of Children's Services received custody of two children as a result of a petition it filed to have the children declared dependent and neglected; the children's mother had died, and they were unable to be placed with their father due to uncertainty regarding his paternity of the children and housing arrangement. After custody was granted to the Department and a permanency plan developed, the father established his paternity; the permanency plan required that he continue to address his housing and employment situations, among other matters. Eleven months after the children came into custody, the Department filed a petition to terminate Father's rights on the grounds of abandonment by failure to visit or support, abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistence of conditions. After a trial, the court found that clear and convincing evidence existed as to all grounds and that termination was in the best interest of the children. Father appeals, contending that the evidence preponderates against various findings of the court, that the evidence does not support a conclusion that any of the grounds were established, or that termination is in the children's best interest. Inasmuch as the children were not removed from the Father's home at the time they came into the Department's custody, we reverse the judgment terminating the Father's rights on the grounds of persistence of conditions and abandonment by failure to provide a suitable home; in all other respects, the judgment is affirmed.

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

          Taylor R. Dahl, Clarksville, Tennessee, for the appellant, Raymond S. A., Sr.

          Herbert H. Slatery, III, Attorney General and Reporter; Brian A. Pierce, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE.

         I. Factual and Procedural History

         This is an appeal from the termination of Raymond A.'s ("Father") rights to his two children: Promise A., born September 2007, and Raymond A. Jr. born June 2008. The Department of Children's Services ("DCS") became involved in May 2014, when it received a referral that the children's mother had been hospitalized and, as a result, the children were unsupervised. On May 23 the children's mother passed away; that same day DCS filed a Petition to Adjudicate Dependency and Neglect. Pertinent to the instant appeal, the petition alleged:

The father to the two younger children is [Father] and he lives in Clarksville, Tennessee. It is unknown where the father lives, but it was reported he lives in a motel.
** *
[Father] reported that he was the father of Raymond Jr. and Promise. . . . [Father] stated that he was not in a relationship with [Mother], but he visited the children every other weekend. He reported seeing the children a month ago. [Father] stated there was no court order for visitation. [Father] reported that he moved to Clarksville, TN from Texas along with [Mother] and the children. He reported that he currently is staying with a friend and does not have a place of his own. . . .
** *
[Father] admitted to past prescription drug use, but denied current use. [Father] consented to a drug screen and tested negative for all substances tested for. [Father] admitted to past prescription drug use, but denied current use. . . .
** *
CPSA Williams contacted Texas Department of Family and Protective Services. Tamala with DFPS reported that [ ] was listed as being the father of [ ]; [Father] was listed as being the father of Raymond A. and that the father of Promise was not listed.
** *
[Mother's sister] stated that [Father] was good with children, but that he was not capable of providing for the children financially. She reported that [Mother] stated to her that [Father] was not the biological father of any of the children. She reported that according to [Mother], [Father] was aware that he was not the children's biological father. She reported that [Mother] stated that [Father] signed both Promise and Raymond Jr's birth certificate but she was not aware if this was true. She reported that . . . Promise and Raymond's father's name is Chris.
** *
[Father] reported that [Mother] . . . advised that he was not biological father of Promise. [Father] reported hearing in the past that he was not the biological father of Promise. [Father] asked the worker if he was able to take a paternity test to determine paternity.
** *
CPSA attempted to obtain the birth certificate of Promise and Raymond. [Father] nor any of the other family members were able to provide the department with definitive proof who the legal father of any children [sic] is. Due to all three children left without a caretaker, DCS placed them in state's custody.

         A protective custody order was entered placing the children in the custody of DCS and setting a preliminary hearing on the petition for May 27.[2] On October 2, 2014, a hearing was held on the dependent and neglect petition; the court found clear and convincing evidence that the children were dependent and neglected and continued custody with DCS.

         The first permanency plan was developed on June 20, 2014; the first permanency goal, with a target date of December 8, was "return to parent, " and the secondary goal was "exit custody with relative." The plan, inter alia, required Father to pay support for and attend all scheduled visits with the children; have a drug and alcohol assessment and comply with any recommendations; be subject to twice-monthly drug screens; demonstrate an ability to provide the children with a safe home environment and meet their basic, physical, and medical needs; have a legal source of income; and complete a paternity test. A second permanency plan was completed on October 22; the plan continued many of the requirements of the first plan, maintained the primary goal of return to parent, and changed the secondary goal to adoption. The second plan modified the first by adding the requirements that Father implement the recommendations from the alcohol and drug assessment he took, complete a psychiatric intake and assessment and random drug screens, and that he participate in the Parenting Education class through Family Support Services.

         DCS filed a petition to terminate Father's rights on April 9, 2015, alleging as grounds: persistence of conditions pursuant to Tennessee Code Annotated section 36-1-113(g)(3); abandonment by failure to visit, support, or to establish a suitable home pursuant to section 36-1-113(g)(1); and substantial non-compliance with permanency plans pursuant to section 36-1-113(g)(2). The petition also alleged that termination was in the children's best interest. Father was appointed counsel, and a guardian ad litem was appointed.

         A hearing was held over two days in September 2015, at which DCS family service worker Lawanna Hassan, the children's foster father, and Father testified. At the completion of the hearing, the court stated its factual findings and that termination of Father's parental rights was in the best interest of the children, and terminated his rights on the grounds of failure to visit or support, persistence of conditions, substantial noncompliance with the permanency plans, and failure to establish a suitable home; an order was entered on February 4, 2016, memorializing the oral ruling.

Father appeals, articulating the following issues for our review:
1. Whether there is clear and convincing evidence to support the termination of parental rights on any of the grounds enumerated, specifically whether there is clear and convincing evidence of substantial noncompliance with the permanency plan, abandonment by failure to provide a suitable home, abandonment by failure to visit and support, or persistence of conditions.
2. Whether there is clear and convincing evidence to support that termination of the Father's parental rights was in the best interests of the minor children.
3. Whether the Father's lack of counsel in the dependency and neglect adjudicatory hearing, which directly preceded the termination of parental rights proceeding, violated the Father's right to due process, as due process requires States to provide parents with fundamentally fair procedures.
4. Whether the Department of Children's Services provided reasonable efforts to reunify the children with their Father.

         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.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.

         III. Analysis

         A. Grounds for Termination

         The trial court found that the following statutory grounds for termination were established: abandonment by failure to visit, failure to support, and failure to provide a suitable home; that the conditions which led to the children's coming into DCS custody persisted; and that Father was in substantial noncompliance with the permanency plans. Father challenges the court's holdings with respect to each ground for termination.

         1. Substantial Noncompliance ...


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