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In re Wesley P.

Court of Appeals of Tennessee, Jackson

May 12, 2017

IN RE: WESLEY P.

          Assigned on Briefs April 3, 2017

         Direct Appeal from the Chancery Court for Weakley County No. 23320 W. Michael Maloan, Chancellor

         This is the second appeal regarding the termination of Father's parental rights with respect to this child. On October 22, 2014, the trial court entered an order terminating both Mother's and Father's rights to their son based on a finding of severe abuse and a determination that it was in the child's best interest that both parents' rights be terminated. Mother and Father appealed that determination to this Court. On May 29, 2015, this Court issued an opinion, In re Wesley P., No. W2014-02246-COA-R3-PT, 2015 WL 3430090 (Tenn. Ct. App. May 29, 2015), affirming the trial court's finding of severe abuse but reversing the termination of parental rights on the basis that it was not in the best interest of the child to do so at that time. On January 12, 2016, DCS filed another petition to terminate Mother's and Father's parental rights, alleging several grounds for termination. Mother subsequently surrendered her parental rights to the child voluntarily, and her rights are not subject to this appeal. After a full hearing, the chancery court found by clear and convincing evidence that all grounds for termination alleged against Father existed and that termination of Father's parental rights was in the best interest of the child. Father appeals. We affirm.

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

          Anthony L. Clark, Paris, Tennessee, for the appellant, Father. [1]

          Herbert H. Slatery III, Attorney General and Reporter, and Ellison M. Berryhill, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Richard H. Dinkins and Thomas R. Frierson, II, JJ., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE.

         I. Facts & Procedural History

         Appellant ("Father") is the biological father of Wesley P., born July 2006 (the "Child"). The Child was first removed from the custody of his biological mother ("Mother")[2] and Father in April 2011 because the Department of Children's Services ("DCS") determined that the use and manufacturing of methamphetamine was taking place in the family's home. Both parents and the Child subsequently tested positive for methamphetamine. On October 4, 2011, the juvenile court entered an agreed order adjudicating the Child dependent and neglected and severely abused based on Mother's and Father's stipulations of the same. The Child was restored to Mother's and Father's custody on April 17, 2012.

         In 2013, DCS received another referral alleging that parents were again manufacturing methamphetamine in their home. After a visit to parents' home, DCS filed a petition with juvenile court on April 29, 2013, requesting the court to order Mother and Father to comply with a non-custodial permanency plan. Mother and the Child submitted to hair follicle drug tests in March 2013, and both tested positive for methamphetamines. DCS then filed an amended petition on May 31, 2013, alleging that there had been substantial non-compliance with the non-custodial permanency plan, and that the Child should therefore be removed from Mother's and Father's custody and placed in the custody of DCS. That same day, an ex parte order of protective custody was entered, and the Child was placed into the custody of DCS.

         After the Child was removed from the parents' home on May 31, 2013, a permanency plan was developed on June 20, 2013. The goal of this plan was for the parents to provide the Child with a safe and drug-free home, and Father signed in agreement with this plan. Thereafter, Mother and Father continued to cohabitate while Mother attempted to achieve sobriety, and they eventually married during the pendency of the juvenile court proceedings. On July 19, 2013, DCS filed a petition in chancery court to terminate Mother's and Father's parental rights to the Child on the sole ground of severe abuse. On December 9, 2013, the Child's permanency plan was revised and the goal of the plan was changed to adoption. The plan listed as desired outcomes for Father to maintain sobriety and once again to establish and maintain a safe and drug-free home. In order to achieve those outcomes, the plan required Father to pay twenty-five dollars ($25.00) per month in child support, visit regularly with the Child, cooperate with and participate in in-home and supervised visitation services, complete and pass a hair follicle drug screen and other random drug screens, and to attend alcoholics anonymous/narcotics anonymous meetings and follow their recommendations. The plan was again revised on June 2, 2014, and generally reiterated the same requirements of Father set forth in the prior plans. Father admitted that he again used methamphetamine in August 2014. In all, approximately nine (9) permanency plans have been developed during the course of this case.

         The hearing on the initial petition to terminate Mother and Father's parental rights to the child was held on September 18, 2014. The chancery court found that the parents had severely abused the Child in 2011 based on their stipulation to said abuse. Further, the court found that the parents again severely abused the Child in 2013 when the Child ingested methamphetamine and Mother was using methamphetamine in the presence of the Child in a structure where the manufacture of methamphetamine was occurring. Ultimately, the chancery court held that DCS had proven the ground of severe abuse and that termination of Mother's and Father's parental rights was in the best interest of the Child. Mother and Father appealed the chancery court's termination of their parental rights. On May 29, 2015, this Court issued an opinion affirming the finding that the Child was severely abused by the parents, but held that terminating Mother's and Father's parental rights was not in the best interest of the Child at that time. See In re Wesley P., No. W2014-02246-COA-R3-PT, 2015 WL 3430090 (Tenn. Ct. App. May 29, 2015). After their parental rights were reinstated, Mother and Father resumed visitation with the Child, and DCS included them in the Child's permanency plans once again.

         On January 12, 2016, DCS filed a second petition to terminate Mother's and Father's parental rights to the Child, which is the petition subject to this appeal (the "Petition"). Mother voluntarily surrendered her parental rights to the Child before the Petition was heard. The Petition alleged the following grounds for termination of Father's rights to the Child: abandonment by an incarcerated parent; abandonment by failure to provide a suitable home; substantial noncompliance with permanency plans; persistent conditions; and severe child abuse. DCS further alleged that terminating Father's parental rights was in the Child's best interest. The hearing on the Petition against Father was held on August 12, 2016. Father was incarcerated on charges unrelated to the Child at the time the Petition was filed and throughout the pendency of the proceedings. On September 13, 2016, the trial court entered an order terminating Father's parental rights to the Child based on findings that DCS had proven each of the alleged grounds for termination by clear and convincing evidence and that termination was in the best interest of the Child. Father timely appealed to this Court.

         II. Issues Presented

         Father presents the following issues for review on appeal:

1. Whether the trial court erred in finding by clear and convincing evidence that Appellant abandoned the minor child by his incarceration?
2. Whether the trial court erred in finding by clear and convincing evidence that Appellant abandoned the minor child by failing to provide a suitable home for minor child?
3. Whether the trial court erred in finding by clear and convincing evidence that Appellant committed substantial non-compliance with family permanency plans?
4. Whether the trial court erred in finding by clear and convincing evidence that persistent conditions exist as grounds for termination of Appellant's parental rights?
5. Whether the trial court erred in finding by clear and convincing evidence that severe abuse exists as grounds for termination of Appellant's parental rights?
6. Whether the trial court erred in finding by clear and convincing evidence that termination of the Appellant's parental rights is in the best interest of the minor child?

         III. Standard of Review

         In Tennessee, proceedings to terminate a parent's parental rights are governed by statute. In re Kaliyah S., 455 S.W.3d 533, 541 (Tenn. 2015). Tennessee Code Annotated section 36-1-113 sets forth the grounds and procedures for terminating the parental rights of a biological parent. Id. at 546. Pursuant to the statute, parties who have standing to seek termination of a biological parent's parental rights must prove two elements. Id. at 552. First, they must prove the existence of at least one of the statutory grounds for termination listed in Tennessee Code Annotated section 36-1-113. Id. Second, the petitioner must prove that terminating parental rights is in the child's best interest, considering, among other things, the factors listed in Tennessee Code Annotated section 36-1-113(i). Id. In light of the constitutional dimension of the rights at stake in a termination proceeding, the persons seeking to terminate parental rights must prove both of these elements by clear and convincing evidence. In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)). "Clear and convincing evidence" has been defined as "'evidence in which there is no serious or substantial doubt about the ...


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