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In re E.C.

Court of Appeals of Tennessee, Knoxville

June 6, 2017

IN RE E.C.

          Assigned on Briefs May 1, 2017

         Appeal from the Juvenile Court for Washington County No. 47-409 Sharon M. Green, Judge

         In this termination of parental rights action, Father's parental rights were terminated based on the following grounds: (1) failure to manifest an ability and willingness to assume legal and physical custody of the child; (2) that placing the child in Father's legal and physical custody would pose a risk of substantial harm to the child's physical and psychological welfare; (3) failure to establish or exercise paternity; and (4) abandonment by wanton disregard for the welfare of the child. We affirm the grounds of failure to manifest an ability and willingness to assume legal and physical custody of the child and failure to establish or exercise paternity. However, we reverse with respect to the remaining grounds. We also affirm the trial court's determination that termination of Father's parental rights is in the best interest of the child. Affirmed in part, reversed in part, and remanded.

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

          Rachel Ratliff, Johnson City, Tennessee, for the appellant, Michael B.

          Herbert H. Slatery, III, Attorney General and Reporter; Jordan K. Crews, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Andy D. Bennett, J., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         Michael B. ("Father") is the biological father of E.C. ("the child"), born in February 2015, who is the subject of this termination proceeding.[1] The child's mother, Crystal C. ("Mother") has previously surrendered her parental rights to the child. As a result, Mother is not a party to this appeal.

         Prior to the child's birth, on January 23, 2014, Father pled guilty to two counts of promotion of methamphetamine manufacture and one count of initiating the process to manufacture methamphetamine in the Carter County Criminal Court ("criminal court"). The offense dates for these convictions occurred on March 30, 2013; April 5, 2013; and May 4, 2013. With respect to the conviction of two counts of promotion of methamphetamine manufacture, Father was sentenced to two years of supervised probation. With respect to the conviction of one count of initiating the process to manufacture methamphetamine, Father was sentenced to nine years of supervised probation to run concurrently with his other convictions.

         On February 28, 2014, Father was released from jail and began serving his fully probated sentence for the aforementioned convictions. As a condition of his probation, Father was required to participate in drug testing. At some point after being placed on probation but prior to the child's birth, Father violated his probation by testing positive for cocaine and opiates. It appears that Father evaded law enforcement for a time; accordingly, an order revoking Father's probation based on his positive drug screen for cocaine and opiates was not entered until May 27, 2015, over a year later. The order revoking his probation was therefore also based on the fact that Father had absconded. Father was subsequently released from incarceration on house arrest and remained out of jail for thirty-five days.[2] As a condition of both his release and probation, Father was to report to community corrections for intake on June 3, 2015; however, Father failed to do so. On June 22, 2015, a warrant was issued for Father's arrest for his failure to report to community corrections and for absconding. On July 9, 2015, Father was arrested on the warrant. On October 12, 2015, the criminal court revoked the community corrections sentence because Father was found to have violated his probation for "fail[ure] to report for intake on June 3, 2015" and for "abscond[ing] from community corrections." As a result, Father was sentenced to serve his nine-year sentence in the Tennessee Department of Corrections as a standard offender at thirty-percent. The Tennessee felony offender registry lists Father's next parole hearing for December 2018, with a release date of October 1, 2023.

         In the meantime, the child was born in February 2015. During the period of time that Father was evading law enforcement on his first probation violation, the record is unclear as to his knowledge of the conception and birth of the child. The child's birth certificate does not list a father. The Tennessee Department of Children's Services ("DCS") filed a petition for temporary legal custody of the child on August 24, 2015, based on allegations of "drug-expos[ure], lack of supervision, and physical abuse." On August 25, 2015, while Father was incarcerated, the Johnson City Juvenile Court ("trial court") issued an emergency protective custody order, removing the child from Mother's home and placing her into the custody of DCS for foster care. On December 11, 2015, DNA testing was completed, confirming Father as the child's biological parent, but no order establishing paternity was entered until August 5, 2016. The child was adjudicated dependent and neglected on December 16, 2015, based on Father's stipulation.

         On June 29, 2016, DCS petitioned to terminate Father's the parental rights to the child. The petition alleged the following grounds for termination: (1) persistence of conditions; (2) abandonment by wanton disregard; and (3) failure to establish/exercise paternity.[3] On September 13, 2016, Father filed an answer to the petition to terminate parental rights, denying all material allegations. A bench trial was conducted on November 22, 2016, with Father participating by telephone.

         Jacosha Alexander, a DCS caseworker assigned to the matter, testified that, prior to the filing of the termination petition, Ms. Alexander consulted the putative father registry and confirmed that only Father claimed paternity to the child. According to Ms. Alexander, the child had been in DCS custody continuously for sixteen months as of the date of trial. Ms. Alexander testified that two child protective services cases were initiated prior to the removal of the child from the home and that Father was incarcerated at the time of both referrals.[4]

         Ms. Alexander also testified that Father had not yet completed any substance abuse treatment because he was still on the waiting list but conceded on cross-examination that there was nothing Father could do to expedite the process. As of the date of the filing of the termination petition, Ms. Alexander testified that Father had not been visiting with the child, had not manifested a willingness and ability to take custody of the child, and did not file a petition to establish paternity after he claimed to be the child's father. When asked whether Ms. Alexander had concerns that placing the child in Father's custody would pose a risk of substantial harm to the child's physical and psychological welfare, Ms. Alexander responded in the affirmative. Ms. Alexander also expressed concerns that Father "may [have] two holds in Florida" and that Father would not be released until December 2018 at the earliest, when the child would be turning four years old. Ms. Alexander testified that she kept Father updated on how the child was doing and sent him pictures of the child. Ms. Alexander conceded on cross-examination that Father had repeatedly told her that he would like to have custody of the child upon his release.

         Ms. Alexander testified that the child was currently in a pre-adoptive home and had been in the same foster home the entire duration of her stay in DSC custody. Based on Ms. Alexander's observations of the foster home, which she visits twice a month, the child is "very happy, healthy[, ] and bouncing around, " the child is "doing really well, " and the child has bonded with the foster parents. According to Ms. Alexander, the child would be negatively impacted if she were to be moved from the foster home.

         Brittany Killebrew, the foster mother for the child, testified that the child had been in her home for sixteen months, the amount of time that the child had been in DCS custody. According to Ms. Killebrew, the child is doing very well in her and her husband's care and has her own room and toys in their home. Ms. Killebrew testified that the child attends day care, never misses any of her various medical appointments, and spends time with their extended family. Ms. Killebrew also testified that the child calls her and her husband mom and dad and that they love the child very much. If the child were made available for adoption, Ms. Killebrew testified that she and her husband would move forward with adopting the child.

         Father testified that he first violated his probation "several days" after he was first released from jail on February 28, 2014, for failing a drug screen. Although this first violation occurred a year before the child was even born, Father was not charged with the violation until May 27, 2015, three months after the child's birth. According to Father, the only bad conduct that occurred after he learned of the child's birth was the violation of his house arrest subsequent to his release on May 27, 2015, based on his failure to report for intake on June 3, 2015. Father explained that he already filled out a home plan for his parole to be served at his parents' house, and his mother had already given her permission. However, Father testified:

The only . . . thing I violated was the house arrest when I got out [o]n May 27th, I believe, and that's only because I didn't have nowhere to go because . . . my mom and dad were on vacation at the time and me and [Mother] were no longer together and I couldn't go there, but I did go over and visit the [child] every day and make sure she had diapers and bought her a swing and brought her clothes and, and whatever else she needed, up until that point where they violated my house arrest for not reporting.

         Father admitted on cross-examination that he knew the child was his daughter at this time. According to Father, he and Mother planned to go to city hall to get the child's birth certificate "straightened out" but never had the chance because the warrant was issued for his failure to report for intake. Father admitted that he knew that failing to report to his probation officer would result in his incarceration; however, Father maintained that his "hands were tied" because he "had nowhere to go."

         Father testified that, upon his release, he would automatically receive a check for his disability and would be allowed to work a part-time job. According to Father, he would stay with his parents in their four-bedroom house. Father testified that he was informed he would make parole if he received no write-ups and maintained good behavior.[5] Father testified that he wants to be a father to the child and that he will have the ability to do so upon his release from incarceration. Father asserted that he wrote letters to the foster parents asking for updates and pictures of the child; however, other than the one picture that Ms. Alexander sent to him, Father had not received any correspondence from the foster parents.

         The court issued an oral ruling at the conclusion of trial and subsequently memorialized its ruling in a written order on December 13, 2016. Therein, the trial court first dismissed the ground of persistence of conditions because Father was incarcerated when the child was removed from Mother's home into DCS custody. The trial court then terminated Father's parental rights on the following grounds: (1) failure to manifest an ability and willingness to assume legal and physical custody of the child; (2) that placing the child in Father's legal and physical custody would pose a risk of substantial harm to the child's physical and psychological welfare; (3) failure to establish or exercise paternity; and (4) abandonment by wanton disregard for the welfare of the child.[6] The trial court also determined that termination was in the child's best interest. Father appealed.

         Issues

         Father raises the following issues for our review, which we have slightly restated:

         1. Whether the trial court properly determined that grounds existed to terminate Father's parental rights.

A. Father failed to manifest an ability and willingness to assume legal and physical custody of the child.
B. Placing the child in Father's legal and physical custody would pose a risk of substantial harm to the child's physical and psychological welfare
C. Father failed to establish or exercise paternity.
D. Father abandoned the child by wanton disregard.

         2. Whether the trial court properly determined that termination of Father's parental rights was in the best interests of the minor child.

         Standard of Review

         As explained by the Tennessee Supreme Court:

A parent's right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although fundamental and constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at 250. "'[T]he [S]tate as parens patriae has a special duty to protect minors . . . .' Tennessee law, thus, upholds the [S]tate's authority as parens patriae when interference with parenting is necessary to prevent serious harm to a child." Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d 507, 522-23 (Tenn. 2016) (footnote omitted).

         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 Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting 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)). 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. Consequently, both the grounds for termination and the best interest inquiry 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. ...


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