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In re P.T.F.

Court of Appeals of Tennessee, Knoxville

June 12, 2017

In re P.T.F.

          Session January 24, 2017

         Appeal from the Juvenile Court for Knox County No. 148322 Timothy E. Irwin, Judge.

         In this termination of parental rights case, the Department of Children's Services filed a petition to terminate the parental rights of T.W.B. (mother) with respect to her child, P.T.F.[1] The trial court found clear and convincing evidence of two grounds supporting termination. By the same quantum of proof, the trial court held that termination of mother's parental rights is in the best interest of the child. Mother appeals. We affirm.

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

          Sherif Guindi, Knoxville, Tennessee, for the appellant, T.W.B.

          Herbert H. Slatery III, Attorney General and Reporter, and Brian A. Pierce, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         During mother's pregnancy, mother failed three drug screens, testing positive for marijuana on two occasions and twice for opiates. Mother admitted at trial that she used oxycodone without a prescription several times a week during the first three months of her pregnancy. On July 3, 2014, DCS sent an investigator for the Office of Child Safety to the hospital to observe the child and interview mother. Following the investigation, DCS had concerns about the safety of the child. It determined that she needed to be placed with a care-provider. On July 4, 2014, the trial court entered a protective custody order finding the child to be dependent and neglected. The court awarded temporary custody to DCS. The child has remained in foster care since that date.

         On October 15, 2014, the trial court entered a child support order requiring mother to pay child support in the amount of $100 per month. The court also found that mother owed a child support arrearage of $225, which included retroactive support to July 3, 2014. The court ordered mother to pay $10 per month toward the arrearage for a total monthly child support obligation of $110.

         On October 13, 2015, DCS filed a petition to terminate mother's parental rights. In the petition, DCS alleged the following grounds for termination: (1) severe child abuse pursuant to Tenn. Code Ann. §§ 36-1-113(g)(4) and 37-1-102(b)(22); (2) abandonment by willful failure to support pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i); (3) abandonment by failure to provide a suitable home pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii); (4) persistence of conditions pursuant to Tenn. Code Ann. §§ 36-1-113(g)(3); and (5) substantial noncompliance with a permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2). DCS also asserted that termination of mother's parental rights is in the best interest of the child.

         On August 31, 2016, the trial court entered its final judgment terminating mother's parental rights, finding that there was clear and convincing evidence of severe child abuse and abandonment by mother's willful failure to support. However, the court determined that DCS had not met its burden of proving abandonment by failure to provide a suitable home, persistence of conditions, or substantial noncompliance with a permanency plan. The court found clear and convincing evidence that termination is in the child's best interest. Mother appeals.

         II.

         Mother raises the following issues on appeal, as taken verbatim from her brief:

Did the [trial] court err in finding that the termination of parental rights ground of severe child abuse has been established?
Did the [trial] court err in finding that the termination of parental rights ground of abandonment by failure to support has been established?
Did the [trial] court err in finding that termination of [mother's] parental rights is in the best interest of her child?

         III.

         A parent has a fundamental right, based on both the federal and state constitutions, to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute. The State may interfere with a parent's rights in certain circumstances. In re Angela E., 303 S.W.3d at 250. Our legislature has listed the grounds upon which termination proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and a parent's rights may be terminated only where a statutory basis exists. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

         To terminate parental rights, a court must determine by clear and convincing evidence the existence of at least 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 Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). "Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings." In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted). Unlike the preponderance of the evidence standard, "[e]vidence satisfying the clear and convincing standard establishes that the truth of the facts asserted is highly probable." In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

         Once a ground for termination is established by clear and convincing evidence, the trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). "The best interest[ ] analysis is separate from and subsequent to the determination that there is clear and convincing evidence of grounds for termination." Id. at 254. The existence of a ground for termination "does not inexorably lead to the conclusion that termination of a parent's rights is in the best interest of the child." In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).

         We are required to review all of the trial court's findings with respect to grounds and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) ("[W]e hold 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 interest[ ], regardless of whether the parent challenges these findings on appeal.")

         The Supreme Court has stated our standard of review:

An appellate court reviews a trial court's findings of fact in termination proceedings using the standard of review in Tenn. R. App. P. 13(d). Under Rule 13(d), appellate courts review factual findings de novo on the record and accord these findings a presumption of correctness unless the evidence preponderates otherwise. In light of the heightened burden of proof in termination proceedings, however, the reviewing court must make its own determination as to 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. 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. Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness.

Id. at 523-24 (internal citations omitted). "When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to . . . the trial court's factual findings." In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034, at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).

         IV.

         A.

         i.

         As previously noted, DCS sought to terminate mother's parental rights based upon severe child abuse. In its petition, DSC alleged that

[t]his child was removed from the parents' custody due to unresolved substance abuse issues, domestic violence in the home, and mental health issues. During the pregnancy [mother] had taken opiates, without a prescription, despite knowing that such use was dangerous and could cause harm to her baby.

         The trial court found clear and convincing evidence that mother had taken drugs during her pregnancy, despite knowing the adverse effects that it could have on the child. In making its ruling, the trial court stated the following:

[T]aking drugs in six months of pregnancy knowing the adverse effects that it could have[.] It doesn't have to have [adverse effects], it just could have. You got lucky here. You stopped it, sounds like, which is great. But is that still severe child abuse? Yeah it is. Absolutely severe abuse. . . . [T]he questions that were posed to the doctor, she's trying to answer from a scientific basis. She doesn't even know or understand the legal ramifications or issues. She doesn't know about the precedence . . .; a year, and it's April 9th, and full term for using July, and you still tested positive for opiates? In this court, that's enough.

         The trial court's final decree of termination explained that

[the expert] testified that opiates or marijuana by themselves are not dangerous, but that there are potential long-term neurological consequences and the possibility of growth retardation from the use of opiates during pregnancy. . . . She also testified that, in her experience, among the population of drug abusing women that she sees in her practice, other risks attend the drug use, including not knowing what you are putting in your body when you buy drugs off the street; risking overdose when not taking medication under a doctor's care; short of overdose, risking impairment that could cause accidental injury to the fetus if the mother falls or drives impaired; and risks associated with taking the drugs in a manner not prescribed such as snorting or IV use. Nothing in [the expert's] testimony causes this [c]ourt to deviate from the long history of appellate cases in Tennessee that set forth the requirements for making a finding that the mother severely abused her child by her abuse of drugs in pregnancy, knowing that such abuse presented a risk of harm to her child.
The mother's own testimony revealed that she used drugs during the first trimester of her pregnancy, and taking her testimony in the most favorable light to the mother, she used during the first month following her knowledge that she was pregnant. She used Oxycodone and marijuana during that time frame.
***
The mother knew the risk of harm associated with her abuse of drugs during this pregnancy and continued to use such drugs exposing her child to the risk of serious bodily injury or death.

(Paragraph numbering in original omitted.) The court concluded that mother committed severe child abuse ...


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