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In re C.J.B.

Court of Appeals of Tennessee, Nashville

June 28, 2017

In re C.J.B., et al.

          Assigned on Briefs February 2, 2017

         Appeal from the Juvenile Court for Franklin County No. 2015-JV-115 Thomas C. Faris, Judge

         This is a termination of parental rights case. The Department of Children's Services filed a petition to terminate the parental rights of C.F.B. (mother) and J.W.B (father) with respect to their two children, C.J.B. and C.C.B. As to mother, the trial court found clear and convincing evidence of four grounds supporting termination. By the same quantum of proof, the trial court found that termination of mother's rights is in the best interest of the children. As to father, the trial court found clear and convincing evidence of three grounds supporting termination. By the same standard of evidence, the trial court found that termination of father's rights is in the best interest of the children. Mother and father appeal. As modified, we affirm.

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

          Robert Floyd Davis, Winchester, Tennessee, for the appellant, C.F.B. Glen A. Isbell, Winchester, Tennessee, for the appellant, J.W.B.

          Herbert H. Slatery III, Attorney General and Reporter, and W. Derek Green, 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 W. Neal McBrayer and Arnold B. Goldin, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

          I.

         The children were born in 2006 and 2009 respectively, and each child is autistic. In 2011, the children were first removed from the parents' home into DCS custody. The trial court found the children to be dependent and neglected due to lack of supervision, domestic assault, and alcohol abuse. The children eventually returned to the parents' home.

         In July 2014, the children were again removed from the parents' home. At that time, DCS responded to a referral that the children had been locked in their bedroom for hours. Upon investigation, DCS found the children locked in their room with human feces on the floor and the walls. On July 17, 2014, the trial court entered a protective custody order and placed the children in the temporary legal custody of DCS.

         On August 7, 2014, DCS developed the first of four permanency plan for the parents. Each plan required the parents to do the following: (1) resolve all current legal charges and not acquire any new charges; (2) get an alcohol and drug assessment and follow recommendations; (3) gain knowledge on services to assist with the children's developmental delay; (4) submit to random drug screens; (5) get mental health assessments and follow all recommendations; and (5) gain knowledge on the effects of domestic violence.

         Based on the events leading to the last removal of the children, the parents were charged with aggravated child abuse. On August 28, 2014, due to those pending charges, the trial court entered an order suspending the parents' visitation with the children. In September 2015, mother and father each pleaded guilty to two counts of felony child neglect. Mother was sentenced to four years to be served in community corrections. Father was sentenced to six years and ordered to serve eighteen days in jail and the remainder in community corrections.

         In October 2014, the trial court found the children to be dependent and neglected. On December 17, 2015, DCS filed a petition to terminate the parents' parental rights. In its petition, DCS alleged ground for termination of mother's rights: (1) abandonment by incarcerated parent pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv); (2) severe child abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(5) and 37-1-102(b)(22); (3) substantial noncompliance with the permanency plans pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2); (4) persistence of conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3); and (5) failure to provide a suitable home pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii). In the same petition, DCS alleged grounds for terminating father's rights: (1) severe child abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(5) and 37-1-102(b)(22); (2) substantial noncompliance with the permanency plans pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2); (3) persistence of conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3); and (4) failure to provide a suitable home pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii). DCS also asserted that termination of mother's rights and father's rights is in the best interest of the children.

         On June 29, 2016, the trial court entered a final judgment terminating mother's and father's parental rights. As to mother, the court found that there is clear and convincing evidence of abandonment by an incarcerated parent, severe child abuse, substantial noncompliance with the permanency plans, and persistence of conditions. As to father, the court found clear and convincing evidence of severe child abuse, substantial noncompliance with the permanency plans, and persistence of conditions. However the court determined that DCS had not met its burden of proving failure to provide a suitable home by mother or father. The court found clear and convincing evidence that termination of mother's and father's rights is in the best interest of the children. Mother and father appeal.

         II.

         On appeal, mother and father each challenge the trial court's finding of clear and convincing evidence supporting grounds for terminating their rights. They also challenge the trial court's finding, said to be made by clear and convincing evidence, that termination of their parental rights is in the best interest of the children.

         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.

         As previously noted, DCS sought to terminate mother's parental rights on the basis of abandonment by an incarcerated parent. Tenn. Code Ann. § 36-1-113(g)(1) allows a court to terminate a parent's rights when the parent has abandoned the child as defined in Tenn. Code Ann. § 36-1-102. Abandonment by an incarcerated parent occurs when

[a] parent . . . 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 . . . 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 make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's . . . incarceration, or the parent . . . 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).

         The trial court found clear and convincing evidence supporting this ground for termination. In its ruling, the trial court stated as follows: "I find that there was eight months of jail on the part of the mother and I find that that fits and I uphold that ground." In the final judgment of termination, the court concluded that

[mother] abandoned her children . . . . Evidence was introduced of criminal convictions of [mother] in 2013, 2014, and 2015, in three separate counties due to her willful criminal acts. Her testimony was that she was in jail too long to undertake compliance with the permanency plan until June 22, 2015, when she was released from her most recent incarceration.

         In its brief, DCS concedes that this ground is not applicable to mother. DCS notes that, because the termination petition was filed on December 17, 2015, the relevant four-month period began on August 17, 2015 and continued until December 16, 2015. DCS acknowledges that the trial court found that mother's most recent incarceration ended on June 22, 2015. Because mother was not incarcerated during the period from August 17, 2015 to December 16, 2015, the ground of abandonment by incarcerated parent is not implicated by the facts. We hold, as a matter of law, that there is not clear and convincing evidence to support termination of mother's rights due to abandonment by an incarcerated parent. We modify the trial court's order to delete the ground of abandonment by an incarcerated parent.

         B.

         The trial court found clear and convincing evidence supporting termination of mother's and father's parental rights on the ground of severe child abuse. Tenn. Code Ann. § 36-1-113(g)(4) provides that a court may terminate a parent's rights based upon the following:

The parent . . . has been found to have committed severe child abuse as defined in § 37-1-102, under any prior order of a court or is found by the court hearing the petition to terminate parental rights . . . to have committed severe child abuse against the child who is the subject of the petition or against any sibling or half-sibling of such child, or any other child residing temporarily or permanently in the home of such parent . . . .

Tenn. Code Ann. § 37-1-102(b)(22) defines severe child abuse as

(A)(i) The knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect that is likely to cause serious bodily injury or death and the knowing use of force on a child that is ...

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