Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Kira G.

Court of Appeals of Tennessee, Knoxville

April 18, 2017

IN RE KIRA G.[1]

          Assigned on Briefs February 2, 2017

         Appeal from the Circuit Court for Greene County No. 12A027 Douglas T. Jenkins, Chancellor

         This case to terminate the parental rights of a father to his daughter is before the court for the second time. The case began when the mother and stepfather filed the petition to terminate the father's rights and for the stepfather to adopt the child. The petition alleged the grounds of abandonment by failure to visit and support and by engaging in conduct showing a wanton disregard for the welfare of the child, and asserted that termination was in the child's best interest. After a hearing, father's parental rights were terminated; Father appealed. This Court vacated the judgment terminating his rights and remanded the case for the trial court to include written findings of fact and conclusions of law and to consider the four months prior to the father's incarceration in the determination of whether the father had abandoned the child. On remand, the court entered an order which included findings of fact and conclusions of law, and terminated father's parental rights on the grounds alleged in the petition and upon a finding that termination was in the child's best interest. The father appeals. We affirm the judgment of the trial court.

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

          Jennifer Luther, Greeneville, Tennessee, for the appellant, Robert P. G., II.

          Roger A. Woolsey, Greeneville, Tennessee, for the appellees, Mikeal R. T. and Jennifer N. J. T.

          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 the second appeal brought by Robert P. G., II ("Father") in this termination of parental rights case. The salient facts are set forth in our previous opinion in In re K. J. G.:

The child was born [in 2008]. Father was listed as a parent on the child's birth certificate. [Jennifer N.J.T ("Mother")] and father were never married, though they were living together at the time of the child's birth. Mother testified that father moved out of the home in July 2008, leaving her with the child and the child's older sibling. The latter died in a tractor accident later that year. In May 2012, mother married [Mikeal R.T. ("Stepfather")].
Father admitted at trial that in about 2005 he began using illegal drugs. He testified that in 2009 he sought treatment for his drug use, but that he had begun using again by the summer of 2010. According to him, he last used drugs in May 2013. From April 2, 2012, until July 31, 2012, father was incarcerated for stealing from his father and grandmother. Mother and stepfather (collectively the petitioners) filed a petition to terminate father's parental rights on August 22, 2012.[2] In the same petition, the stepfather sought to adopt the child.
The trial court held a hearing on November 18, 2014.[3] The court found clear and convincing evidence (1) of grounds to terminate father's parental rights and (2) that termination was in the child's best interest. The trial court filed its judgment on January 13, 2015.
The trial court found three grounds for abandonment under Tenn. Code Ann. § 36-1-102(1)(A)-willful failure to visit, willful failure to support, and wanton disregard for the child's welfare.

No. E2015-00087-COA-R3-PT, 2016 WL 1203800, at *1, *2 (Tenn. Ct. App. Mar. 28, 2016).

         Father appealed; we vacated the judgment and remanded the case for the trial court to prepare written findings of fact and conclusions of law in the order in accordance with Tennessee Code Annotated section 36-1-113(k) and, in that regard, to consider the four months prior to Father's incarceration in its analysis of the evidence rather than the four month period prior to the petition being filed.[4] Following a hearing on April 20, 2016, the court entered Findings of Fact and Conclusions of Law on April 27; the Findings included a section of "findings which were uttered orally at the conclusion of the [November 18, 2014] hearing." Pursuant to the instruction in the order of remand, the April 27 Findings considered the four month period prior to Father's incarceration. On June 1, the court entered an order incorporating the findings set forth in the April 27 document and terminating Father's parental rights on the ground of abandonment by willful failure to visit, willful failure to support, and wanton disregard, and upon a finding that termination was in the child's best interest.

         Father appeals, challenging the holdings of abandonment by failure to visit and that termination was in Kira's best interest.

         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 Serv. 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. In this regard, clear and convincing evidence is "evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence" and which "produces a firm belief or conviction in the fact-finder's mind regarding the truth of the facts sought to be established." In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal citations omitted).

         II. Abandonment

         Father challenges only one of the three grounds for termination found by the court. Mindful of the instruction set forth by our Supreme Court that, "in an appeal from an order terminating parental rights[, ] the Court of Appeals must review the trial court's findings as to each ground for termination and as to whether termination is in the child's best interests, regardless of whether the parent challenges these findings on appeal, " we will address the sufficiency of the evidence to support each of the grounds for termination. In Re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016), cert. denied sub nom. Vanessa G. v. Tenn. Dep't of Children's Serv., 137 S.Ct. 44, 196 L.Ed.2d 28 (2016) (footnote omitted).

         Abandonment is identified as a ground for termination in Tennessee Code Annotated section 36-1-116(g)(1) and defined in section 36-1-102(1)(A), which reads in pertinent part:

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: ***
(iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child.

         Tenn. Code Ann. § 36-1-102(1)(A)(iv).

         A. Failure to Visit

         In the final order, the court made the following findings with respect to the ground of failure to visit:

It was shown to the Court that [Father] had, for the period December 1, 2011 to April 1, 2012, willfully failed to . . . visit the child. . . .
. . . [T]he Court finds that for the four month period agreed upon between the parties as the "relevant period", [Father] willfully failed to visit the subject child but may have had only had token visitation with the child. Further, during that period of time [Father] did not maintain any relationship other than visitor with the child. [Father] was very open and candid with the Court in this regard and the Court appreciates him telling the truth.

         The court then held:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Respondent, [Father], by clear and convincing evidence has willfully failed to . . . visit the child that is the subject of this Petition during the period of time between December 1, 2011 to April 1, 2012, the relevant four (4) month period of time agreed upon by counsel at the trial in this cause pursuant to T. C. A. § 36-1-102. . . .
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that during the relevant four (4) month period of time between December 1, 2011 to April 1, 2012, that the Respondent had only as what would best be described as token visitation with the child . . .

         Father does not argue that the above finding is unsupported by the record, and upon our review, we conclude that the record does contain evidence in support of this finding. Rather, Father argues that "the lack of significant visitation was brought about by a climate of hostility toward [Father] and was therefore not willful."

         In In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005), this Court discussed willfulness in the context of termination 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. . . . 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. . . . Failure to visit or support a child is "willful" when a person is aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing so. Failure to visit or to support is not excused by another person's conduct unless the conduct actually prevents the person with the obligation from performing his or her duty . . . or amounts to a significant restraint of or interference with the parent's efforts to support or develop a relationship with the child. The parental duty of visitation is separate and distinct from the parental duty of support. Thus, attempts by others to frustrate or impede a parent's visitation do not provide justification for the parent's failure to support the child financially.
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.