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In re Hailey O.

Court of Appeals of Tennessee, Knoxville

March 23, 2017

IN RE: HAILEY O., ET AL. [1]

          Assigned on Briefs January 4, 2017

         Appeal from the Juvenile Court for Knox County No. 157161 Timothy E. Irwin, Judge

         The father of two children appeals the termination of his parental rights on the grounds of abandonment by failure to visit them within the four month period preceding his incarceration and by engaging in conduct prior to his incarceration that exhibits a wanton disregard for the welfare of the children. Finding no error, we affirm the judgment in all respects.

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

          Anna Renee East Corcoran, Knoxville, Tennessee, for the appellant, Derrick E.T.

          Herbert H. Slatery, III, Attorney General and Reporter; Rachel E. Buckley, 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 J. Steven Stafford, P.J., W.S., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         This is an appeal from the order terminating the parental rights of Derrick E. T. ("Father") to his children Hailey O., born in 2008, and Holly T., born in 2010. The petition to terminate Father's rights was initiated by the Department of Children's Services ("DCS"), which had received custody of the children as a result of a petition it filed to have them declared dependent and neglected. At the time the children came into DCS custody on October 8, 2015, both of their parents were incarcerated, and they were living with their maternal grandmother and her boyfriend. In due course the children were determined to be dependent and neglected; the order of adjudication states:

[T]he children [Hailey] and [Holly] are dependent and neglected within the meaning of the law due to the parents' inability to provide appropriate care and supervision because of their incarcerations, and due to their failure to provide for an appropriate caretaker for the children while they were incarcerated. The person selected to care for the children, maternal grandmother, . . . failed to provide for the children's medical, dental and educational needs while she was providing for the children, and the children suffered medically, dentally, and educationally because of her failures.

         The children were placed in foster care, where they have remained.[2]

         DCS filed the petition to terminate Father's parental rights on February 24, 2016, asserting as grounds that, prior to his incarceration, Father engaged in conduct exhibiting a wanton disregard for the welfare of the children and that he had abandoned the children by failing to visit them in the four months immediately preceding his incarceration.[3]Trial was held on July 14, 2016; Father was incarcerated and participated by phone while his counsel participated in person. On July 21, 2016, the court entered an order terminating the Father's rights to both children on the grounds asserted in the petition.

Father appeals, stating the following issues:
1.Whether the evidence presented at trial supports a finding by clear and convincing evidence that the Appellant, prior to incarceration, engaged in conduct which exhibits a wanton disregard for the welfare of the children.
2.Whether the evidence presented at trial supports a finding by clear and convincing evidence that the Appellant has abandoned the children in that he has willfully failed to visit for four (4) consecutive months immediately prior to incarceration.
3.Whether the evidence presented at trial supports a finding by clear and convincing evidence that termination of the Appellant's parental rights is in the best interest of the children.

         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.

         II. Analysis

         Tennessee Code Annotated section 36-1-113(g)(1) provides that abandonment, as defined at section 36-1-102(1)(A), constitutes a ground for termination; subsection (iv) of the latter statute sets out definitions of abandonment which apply when the parent whose rights are sought to be terminated is incarcerated when the proceeding is instituted. Pertinent to this case, the ground applies where the parent is alleged to have failed to visit the child in the four months immediately prior to incarceration or to have "engaged in ...


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