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In re Ja'Miya T.

Court of Appeals of Tennessee, Jackson

March 28, 2017

IN RE JA'MIYA T.

          Assigned on Briefs February 2, 2017

         Appeal from the Juvenile Court for Shelby County No. AA1036 David S. Walker, Special Judge

         This is a termination of parental rights case. The trial court terminated Appellant/Father's parental rights on the grounds of: (1) abandonment by willful failure to support; and (2) persistence of conditions. Because the grounds for termination of Father's parental rights are met by clear and convincing evidence, and there is also clear and convincing evidence that termination of Father's parental rights is in the best interest of the child, we affirm and remand.

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

          James Franklin, Jr., Memphis, Tennessee, for the appellant, Derrick T.

          Herbert H. Slatery, III, Attorney General and Reporter, and Rachel E. Buckley, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Kenny Armstrong, J., delivered the opinion of the court, in which Charles D. Susano, Jr. and W. Neal McBrayer, JJ., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         This case concerns one minor child, Ja'Miya T. (d.o.b July 2008).[1] Derrick T. ("Father, " or "Appellant") and Jennifer B. ("Mother") are Ja'Miya T.'s parents.[2] The Tennessee Department of Children's Services ("DCS, " or "Appellee") first became involved with this family on October 9, 2013, when DCS received a local referral, reporting abuse of Ja'Miya T. and drug use in the home. A DCS investigator visited the home and found that the family had been evicted. DCS located Ja'Miya T., Father, Mother, and Mother's other children at a motel. Ja'Miya T. was reported to be unkempt; she was also not enrolled in school. Mother stated that the family was living in various motels. Mother also admitted to using cocaine and having several untreated mental illnesses, including bipolar disorder and schizophrenia. In a drug screen, Father tested positive for marijuana and cocaine. Father and Mother stated that they did not have stable housing or employment. Ja'Miya T. reported that Father whipped her with extension cords, and a physical examination revealed new and old bruises.

         In an order entered on February 17, 2014, the Shelby County Juvenile Court ("trial court") adjudicated Ja'Miya T. dependent and neglected, finding, in relevant part, that:

Child Protective Services investigator Julianka Jackson testified. Upon arriving at the family's residence to investigate a referral received by [DCS], Ms. Jackson found the family's household items on the street. After speaking with the property's manager, Ms. Jackson found the family at a local motel. Upon further investigation, the mother, Jennifer B[.], admitted to not having a home for the child[], admitted to the use of cocaine and marijuana, and admitted to having prior mental health issues…. At this meeting, Derrick T[.] tested positive for controlled substance use. The mother was asked but declined to take a drug test. There were also allegations of physical abuse of the child[] on the part of the father, Derrick T[.] Ms. Jackson spoke with the child[] who advised that [she] had been whipped by the father with extension cords. Ms. Jackson observed new and old marks on the child[] which were consistent with being beaten with extension cords.
Family Services worker Tiffany Robinson testified. A Child and Family Team Meeting was conducted on October 14, 2013. At this meeting the father tested positive for cocaine and marijuana. The mother refused to take a drug test…. Ms. Robinson testified that the father is also not in compliance with the tasks listed in the Permanency Plan. The father has failed to participate in or complete an alcohol and drug assessment, a mental health assessment, domestic violence counseling, and a parenting assessment. Furthermore, the father has failed to obtain and maintain a stable source of income, obtain and maintain stable housing, and legitimate the children. Lastly, the father has only visited with the child[] one time since [she] entered [DCS] custody. Ms. Robinson testified that she had difficulty maintaining contact with the father as his phone had been disconnected.
* * *
By clear and convincing evidence, the minor child[] [is] dependent and neglected within the meaning of the law pursuant to Tenn. Code Ann. 37-1-102(b)(12)(F) and 37-1-102(b)(12)(G). Based on the assessment of the family and the child[]'s circumstances, it was reasonable not to make efforts to maintain the child[] in the home due to allegations of drug exposure and physical abuse.

         After working with Father for over a year, on July 28, 2015, DCS filed a petition to terminate Mother and Father's parental rights. As grounds for termination of Father's parental rights to Ja'Miya T., DCS asserted: (1) abandonment by willful failure to support; and (2) persistence of the conditions that led to the child's removal from Father's home. On May 19 and 23, 2016, the trial court heard the petition to terminate Father's parental rights. On June 16, 2016, the trial court entered an order terminating Father's parental rights to Ja'Miya T. on the grounds of abandonment by willful failure to support, persistent conditions, and on its finding that termination of Appellant's parental rights is in the child's best interest. Appellant appeals.

         II. Issues

In his brief, Appellant raises three issues for review:
1. Whether DCS presented clear and convincing evidence in regard to failure to support?
2. Whether DCS made reasonable efforts in regard to the ground of persistence of conditions?
3. Whether it is reversible error for Special Judge Walker to sit as a substitute [j]udge, though the procedures set forth in Tennessee Code Annotated Section 17-2-118 have not been followed?

         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 child'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 child's best interest 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 in 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). Furthermore, when the resolution of an issue in a case depends on the truthfulness of witnesses, the trial judge, who has had the opportunity to observe the witness and his or her manner and demeanor while testifying, is in a far better position than this Court to decide those issues. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App.1997). The weight, faith, and credit to be given to any witness' testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court. See Whitaker, 957 S.W.2d at 837; see also Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997). Accordingly, appellate courts will not re-evaluate a trial judge's assessment of witness credibility absent clear and convincing evidence to the contrary. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn. 1987); Bingham v. Dyersburg Fabrics Co., Inc., 567 S.W.2d 169, 170 (Tenn. 1978); Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).

         IV. Authority of the Trial Court

         In his third issue, Appellant alleges that Special Judge Walker was not properly appointed as a substitute judge, pursuant to Tennessee Code Annotated Section 17-2-118, so as to have authority to terminate Appellant's parental rights. From our review of the record, Appellant failed to raise this issue or object in the trial court. In fact, the trial court's order specifically states that, "No party objected to the Special Judge presiding over this matter." "[T]he issue of whether a magistrate has been properly appointed to serve as a special judge in juvenile court has been thoroughly litigated and has never been deemed to constitute an issue of subject matter jurisdiction" and, therefore, may not be raised for the first time on appeal. In re Marcell W., No. W2014-02120-COA-R3-CV, 2015 WL 4396261, at *9 (Tenn. Ct. App. July 16, 2015); see also State Dept. of Children's Servs. v. A.M.H., 198 S.W.3d 757, 764 (Tenn. Ct. App. 2006) (declining to consider appellant's argument concerning a special judge's authority because "issues not raised at trial generally will not be considered for the first time on appeal."). Because the special judge issue does not raise a question concerning subject matter jurisdiction, the issue cannot be raised for the first time on appeal. Tenn. R. App. P. 13(b). Accordingly, Appellant's argument that Special Judge Walker lacked the authority to preside over the proceeding for termination of parental rights is waived.

         V. Grounds for Termination of Parental Rights

         As noted above, the trial court relied on two statutory grounds in terminating Appellant's parental rights: (1) abandonment by willful failure to pay support; and (2) persistence of conditions. See Tenn. Code Ann. §§ 36-1-102(1)(A)(i); 36-1-113(g)(1), (3). 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 grounds.

         A. Abandonment

         The trial court found, by clear and convincing evidence, that Father's parental rights should be terminated on the ground of abandonment by willful failure to pay support 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… 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 March 28, 2015 until July 27, 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).

         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. ...


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