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In re James V.

Court of Appeals of Tennessee

May 31, 2017

IN RE: JAMES V., ET AL.

          Assigned on Briefs May 1, 2017

         Direct Appeal from the Juvenile Court for Overton County No. 16-JV-23 Daryl A. Colson, Judge

         This appeal involves the termination of a mother's parental rights to her two sons. The trial court found by clear and convincing evidence that four grounds for termination were proven and that it was in the best interest of the children to terminate parental rights. Mother appeals but only challenges the best interest determination. We have also reviewed the evidence regarding each ground for termination. We vacate the trial court's finding regarding one ground for termination but otherwise affirm the trial court's order and affirm the termination of the mother's parental rights.

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

          Joshua Vernon Hoeppner, Kingsport, Tennessee, for the appellant, Virginia V.G.

          Herbert H. Slatery III, Attorney General and Reporter, Alexanders S. Rieger, Assistnat Attorney General and Martha A. Campbell, 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

         Virginia V.G.[1] ("Mother") gave birth to a son, James V., in December 2006. The child was born out-of-wedlock. The Tennessee Department of Children's Services ("DCS") became involved with James in 2009 due to allegations of abandonment and nutritional neglect. Mother was released from jail around this time and admitted that she could not care for James, so DCS placed him with his grandparents. Mother gave birth to a second son ("Brother") in July 2010.[2] James remained with his grandparents until 2012, when DCS investigated the grandmother for alleged abuse of James. At that point, James was placed back in Mother's home. However, Mother's involvement with DCS continued.

         Over the years, DCS conducted ten separate investigations of Mother's home. The reasons for these investigations included physical abuse, unexplained bruises on the children, environmental neglect, drug use by Mother, homelessness, and inability to establish a suitable home. DCS developed a non-custodial permanency plan for Mother that included in-home counseling, parenting education, and other services. Still, on April 21, 2015, the juvenile court adjudicated James and Brother dependent and neglected after James came to school with extensive bruising, scratches, and "slash marks" on his arm and reported that Mother "beat" him with a plastic strip off of their refrigerator. During the investigation, DCS workers observed that Mother's home was cluttered with clothes and scattered garbage. The juvenile court found that the children's safety could not be adequately protected in the home and that there was no less drastic alternative than removing the children from the home. The court granted temporary legal custody to DCS, and the children entered foster care on April 21, 2015.

         DCS developed a permanency plan for Mother on May 6, 2015, which required her to complete numerous tasks to work toward the goal of returning the children to her home. Mother completed some tasks but failed to comply with many others. In December 2015, Mother's supervised visits with the children were stopped due to adverse behavioral reactions the children were experiencing in connection with the visitation, in addition to the facts that a case worker observed what appeared to be drugs during a visit to Mother's home, and Mother failed a drug screen at a visit with the children later that day.

         Ten months after the children entered foster care, on March 8, 2016, DCS filed a petition to terminate Mother's parental rights based on the statutory grounds of abandonment by failure to pay child support, abandonment by failure to establish a suitable home, substantial noncompliance with the permanency plan, and persistent conditions. Counsel was appointed for Mother, and a bench trial was held on June 28, 2016. By that time, Mother was pregnant with a third child. James was nine years old, and Brother was five. The trial court heard testimony from eight witnesses presented by DCS, including the children's family service workers from DCS, an investigator for child protective services, various counselors, the family service coordinator who provided in-home parenting education, and an in-home case manager. Mother did not testify or call any witnesses.

         On July 14, 2016, the trial court entered its written order. The court found by clear and convincing evidence that all four grounds for termination were proven and that termination of Mother's parental rights was in the best interest of the children. Mother timely filed a notice of appeal.[3]

         II. Issues Presented

         The only issue raised by Mother on appeal is whether the trial court erred in concluding that termination of parental rights was in the children's best interest. She does not challenge the trial court's findings regarding the existence of four grounds for termination. Nevertheless, we must address these issues. The Tennessee Supreme Court has stated unequivocally 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." In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016). As a result, we have reviewed the trial court's findings regarding all grounds for termination and regarding the best interest analysis. For the following reasons, we affirm the trial court's order as modified and remand for further proceedings.

         III. Discussion

         In Tennessee, proceedings to terminate 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(g). 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.

          Because of the constitutional dimension of the rights at stake in a termination proceeding, 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)). "The purpose of this heightened burden of proof is to minimize the possibility of erroneous decisions that result in an unwarranted termination of or interference with these rights." Id. (citing In re Tiffany B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005)). "Clear and convincing evidence" has been defined as "'evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.'" In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (quoting In re Valentine, 79 S.W.3d at 546). It produces a firm belief or conviction in the fact-finder's mind regarding the truth of the facts sought to be established. In re Bernard T., 319 S.W.3d at 596.

         Due to this heightened burden of proof in parental termination cases, on appeal we adapt our customary standard of review set forth in Tennessee Rule of Appellate Procedure 13(d). In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). First, we review each of the trial court's factual findings de novo in accordance with Rule 13(d), presuming the finding to be correct unless the evidence preponderates against it. In re Adoption of Angela E., 402 S.W.3d at 639. Then, we make our own determination regarding "whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights." In re Carrington H., 483 S.W.3d at 524 (citing In re Bernard T., 319 S.W.3d at 596-97). "The trial court's ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness." Id. (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)).

         1. Grounds ...


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