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In re Charles A.

Court of Appeals of Tennessee, Knoxville

March 24, 2017

IN RE CHARLES A.

          Assigned on Briefs March 1, 2017

          Appeal from the Circuit Court for McMinn County No. 2015-CV-158 Lawrence Howard Puckett, Judge

         This is a termination of parental rights case. Mother appeals the termination of her parental rights to the minor child on the grounds of abandonment and persistence of conditions. Because the record does not contain an adjudicatory order of dependency and neglect, we reverse the ground of persistence of conditions. We affirm the termination of Mother's parental rights on the ground of abandonment and on the trial court's finding that termination of Mother's parental rights is in the child's best interest. Reversed in part, affirmed in part, and remanded.

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

          Kathleen Hodge, Athens, Tennessee, for the appellant, Olivia B.

          Donald (Trey) Winder, III, Athens, Tennessee, for the appellees, Randy M. and Dawana M.

          Arnold B. Goldin, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and John W. McClarty, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         I. Background

         The minor child at issue in this case, Charles A. (d.o.b. May 2010), [1] was born to Appellant Olivia B. ("Mother") and Jeffrey A. ("Father").[2] Randy M. and Dawana M. (together, "Appellees") are Charles A.'s paternal aunt and uncle. Charles A. lived with Mother for the first year of his life. By May of 2011, however, the child was living with Appellees. In January of 2013, Mother regained custody, but Appellees remained deeply involved in the life of the child including the granting of visitation privileges.[3]

         In the Fall of 2014, Appellees petitioned the Juvenile Court of McMinn County for temporary custody of Charles A. On October 6, 2014 the juvenile court issued a "Temporary Order, " finding that Charles A. was dependent and neglected and, specifically, that Charles A. was "in need of a custodian due to the mother being arrest[ed] for DUI and presently incarcerated." The record shows that Mother was arrested for DUI while Charles A. was in the car. Based on Mother's arrest and incarceration, the trial court granted temporary custody of Charles A. to Appellees. Charles A. has lived with Appellees since that time.

         In April of 2015, Mother was found guilty of DUI in McMinn County. On May 7, 2015, Appellees filed a petition to terminate Mother and Father's parental rights on grounds of: (1) abandonment by willful failure to visit and support; and (2) persistence of the conditions that led to the child's removal from Mother's home. The trial court found that Mother was indigent and appointed an attorney to represent her; the trial court also appointed a guardian ad litem for Charles A. On November 13, 2015, Mother filed a response to Appellees' petition, wherein she demanded strict proof of abandonment and denied any drug abuse.

         The trial court heard the petition to terminate parental rights on May 23, 2016. By order of July 15, 2016 and amended order of July 21, 2016, the trial court terminated Mother's parental rights to Charles A. on grounds of abandonment by willful failure to support and visit and persistence of the conditions that led to Charles A.'s removal from Mother's home. The trial court also found that termination of Mother's parental rights is in Charles A.'s best interest. Mother appeals.

         II. Issues

         Mother raises five issues for review, which we state as follows:

1. Did the trial court err in finding that Appellees had proven, by clear and convincing evidence, the ground of persistence of the conditions that led to the child's removal from Mother's home.
2. Did the trial court err in finding that Appellees had proven, by clear and convincing evidence, the ground of abandonment by willful failure to support and willful failure to visit.
3. Did the trial court err in finding that Appellees had proven, by clear and convincing evidence, that termination of Mother's parental rights is in the child's best interest.
4. Did the trial court err in denying Appellant's motion to continue.
5. Did the trial court err in admitting inadmissible evidence.

         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 1021618, 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 children'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 children's best interests 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.

         In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review under Tennessee Rule of Appellate Procedure 13(d). As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). 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. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

         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) persistence of the conditions that led to the child's removal from Appellant's home, Tenn. Code Ann. § 36-1-113(g)(3); and (2) abandonment by willful failure to visit and willful failure to support, Tenn. Code Ann §§ 36-1-113(g)(1), 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). Accordingly, we will review both of the foregoing grounds.

         A. Persistence of Conditions

         As noted above, the trial court terminated Mother's parental rights on the statutory ground of persistence of the conditions that led to child's removal under Tennessee Code Annotated Section 36-1-113(g)(3). The statute defines persistence of conditions as follows:

(3) The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months:
(A) The conditions that led to the child's removal or other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect and that, therefore, prevent the child's safe return to the care of the parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child relationship greatly diminishes the child's chances of early integration into a safe, stable and permanent home.

         The purpose behind the "persistence of conditions" ground for terminating parental rights is "to prevent the child's lingering in the uncertain status of foster child if a parent cannot within a reasonable time demonstrate an ability to provide a safe and caring environment for the child." In re Arteria H., 326 S.W.3d 167, 178 (Tenn. Ct. App. 2010), overruled on other grounds by In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015). In In re Audrey S., 182 S.W.3d 838, 872 (Tenn. Ct. App. 2005), perm. app. denied (Tenn. Nov. 7, 2005), this Court held that "based on the statutory text and its historical development, [the ground of persistence of conditions found in Tennessee Code Annotated Section 36-1-113(g)(3)] applies as a ground for termination of parental rights only where the prior court order removing the child from the parent's home was based on a judicial finding of dependency, neglect, or abuse." In re Audrey S., 182 S.W.3d at 872. In In re Audrey S., this Court specifically concluded that a preliminary hearing order was not a sufficient adjudication of dependency and neglect so as to support the ground of persistence of conditions in a termination of parental rights case:

The March 28, 1996 temporary custody order and preceding restraining order were entered in a dependency and neglect proceeding, but they were not based on a judicial finding that Audrey S. was dependent, neglected, or abused. The statutes and rules governing procedure in the juvenile courts provide for three types of hearings in cases where a child is alleged to be dependent, neglected, or abused: (1) preliminary hearings; (2) adjudicatory hearings; and (3) dispositional hearings . . . . The function of the adjudicatory hearing is to determine whether the allegations of dependency, neglect, or abuse are true. Tenn. R. Juv. P. 27(b), 28(a), (f)(1). The Tennessee Rules of Evidence apply, Tenn. R. Juv. P. 28(c), and the juvenile court's finding that a child is dependent, neglected, or abused must be based on clear and convincing evidence, Tenn. Code Ann. 37-1-129(c); Tenn. R. Juv. P. 28(f)(1)(i)-(ii). The purpose of the dispositional hearing, which follows the adjudicatory hearing, is to determine the proper placement for a child who has been found to be dependent, neglected, or abused. Tenn. .Code Ann. § 37-113(a) (2001); Tenn. R. Juv. P. 32. As its name implies, a preliminary hearing occurs prior to both the adjudicatory hearing and the dispositional hearing. Tenn. Code Ann. § 37-1-117(c); Tenn. R. Juv. P. 6(c), 16(a). Its function is to allow the juvenile court to decide whether the child should be removed from the parent's custody pending the adjudicatory hearing. Tenn. Code Ann. § 37-1-117(c); Tenn. R. Juv. P. 16(c). The juvenile court is allowed to consider reliable hearsay in making its decision, Tenn. R. Juv. P. 16(a), and it can order the child removed from the parent's custody based on a finding of "probable cause" that the child is a dependent, neglected, or abused child, Tenn. Code Ann. § 37-1-114(a)(2) (2001).
The March 28, 1996 temporary custody order resulted from a preliminary hearing, not an adjudicatory hearing, and the restraining order was designed merely to preserve the status quo in advance of the preliminary hearing. The temporary custody order contains an implicit judicial finding of probable cause that Audrey S. was dependent, neglected, or abused. It does not contain a finding, either explicit or implicit, that Audrey S. was in fact dependent, neglected, or abused. The juvenile court never held an adjudicatory hearing on Wilma S.'s petition for temporary custody of Audrey S., and there is no other court order in the record prior to the filing of the joint termination petition that reflects a finding of dependency, neglect, or abuse with respect to Audrey S. Accordingly, the juvenile court erred in relying on Tenn. Code Ann. § 36-1-113(g)(3) as a ground for terminating Jamie F.'s parental rights to Audrey S.

In re Audrey S., 182 S.W.3d at 874-75 (some citations omitted). Likewise, in the instant case, the record contains only a "Temporary Order" from the Juvenile Court of McMinn County. While this "Temporary Order" concludes that Charles A. is dependent and neglected in that Mother had been arrested and incarcerated for DUI, it specifically holds that "temporary custody" will be given to Appellees "until the court date of October 21, 2014." In fact, at the hearing on the petition to terminate parental rights, Appellees' counsel refers to this order as "an emergency order based on [Mother's] arrest." The trial court then asks, "[I]t was an emergency order so I take it there was no . . . final disposition on the dependency and neglect." Appellees' counsel replies, "That's correct." We glean that the October 21, 2014 date, which is referenced in the "Temporary Order, " was set for the adjudicatory hearing on dependency and neglect; however, there is no indication that an adjudicatory hearing actually occurred. As such, we are left with only a "Temporary Order" entered after a preliminary hearing before the juvenile court. Under the holding of In re Audrey S., such temporary orders are not sufficient to support termination of parental rights on the ground of persistence of conditions. Accordingly, we reverse this ground for termination of Mother's parental rights.

         B. Abandonment

         The trial court also found, by clear and convincing evidence, that Mother's parental rights should be terminated on the ground of abandonment by willful failure to pay support and willful failure to visit pursuant to Tennessee Code Annotated Section 36-1-113(g)(1) and Tennessee Code Annotated Section 36-1-102(1)(A)(i). In pertinent part, Tennessee Code Annotated Section 36-1-113(g) provides:

(g) Initiation of termination of parental or guardianship rights may be based upon any of the grounds listed in this subsection (g). The following grounds are cumulative and non-exclusive, so that listing conditions, acts or omissions in one ground does not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred;

Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated Section 36-1-102 defines "abandonment, " in relevant part, as follows:

(1)(A) 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:
(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent or parents or the guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, that the parent or parents or the guardian or guardians either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child;

Tenn. Code Ann. § 36-1-102(1)(A)(i). As found by the trial court, the relevant, four-month time period in this case is February 7, 2015 to May 7, 2015.

         In In re Audrey S., this Court discussed willfulness in the context of termination of parental rights cases:

The concept of "willfulness" is at the core of the statutory definition of abandonment. A parent cannot be found to have abandoned a child under Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either "willfully" failed to visit or "willfully" failed to support the child for a period of four consecutive months.... In the statutes governing the termination of parental rights, "willfulness" does not require the same standard of culpability as is required by the penal code. Nor does it require malevolence or ill will. Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. Conduct is "willful" if it is the product of free will rather than coercion. Thus, a person acts "willfully" if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing ....
The willfulness of particular conduct depends upon the actor's intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into a person's mind to assess intentions or motivations. Accordingly, triers-of-fact must infer intent from the circumstantial evidence, including a person's actions or conduct.

In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (internal citations and footnotes omitted).

         1. Willful Failure to Support

         For purposes of Tennessee Code Annotated Section 36-1-102(1)(A)(i), "token support" means that the support, under the circumstances of an individual case, is not significant considering the parent's means. Tenn. Code Ann. § 36-1-102(1)(B). This Court has held that failure to pay support is "willful" if the parent "is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing the support." In re J.J.C., 148 S.W.3d 919, 926 (Tenn. Ct. App. 2004) (quoting In re Adoption of Muir, No. M2002- 02963-COA-R3-CV, 2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)).

         In its order terminating Mother's parental rights, the trial court made the following, relevant findings concerning the ...


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