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In re Tanya G.

Court of Appeals of Tennessee, Knoxville

July 7, 2017

IN RE TANYA G.

          Assigned on Briefs June 1, 2017 [1]

         Appeal from the Juvenile Court for Knox County No. 59186 Timothy E. Irwin, Judge.

         A mother's parental rights to her child were terminated on the ground of mental incompetence and upon the finding that termination was in the child's best interest. Mother appeals, contending that the ground is not supported by the evidence and that termination of her parental rights is not in the best interest of the child. Finding no error, we affirm the judgment of the trial court.

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

          Gregory E. Bennett, Seymour, Tennessee, for the appellant, LaToya G.

          Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Jordan K. Crews, Assistant Attorney General; and Kathryn A. Baker, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Christine L. Dummer, Knoxville, Tennessee, Guardian ad litem.

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

          OPINION

          RICHARD H. DINKINS, JUDGE.

         I. FACTUAL AND PROCEDURAL HISTORY

         This is an appeal from the order terminating the parental rights of LaToya G. ("Mother") to her daughter, Tanya. The Department of Children's Services ("DCS") received custody of Tanya as a result of a proceeding DCS initiated in Knox County Juvenile Court on February 22, 2016, two days after Tanya's birth, to have Tanya declared dependent and neglected because of the state of Mother's mental health, which had resulted in Mother's involuntary commitment. After issuing a Protective Custody Order granting temporary legal custody of Tanya to DCS, a hearing was held, and the court found Tanya to be dependent and neglected; an Interim Order allowing DCS to retain custody of Tanya was entered.

         On May 9, 2016, the court ratified a permanency plan and ordered that Mother be allowed supervised visitation with Tanya.[2] On October 20, 2016, DCS moved to suspend Mother's visitation due to Mother's inappropriate actions during visitation; the motion was granted. Of pertinence to the instant appeal, the Order noted:

Ms. Capps testified that the mother would tell the child to shut up and would call her names such as "bitch, " "whore, " and "rat." The mother would also refuse any help during her visits despite the fact that the child would cry for so long that she would start to hyperventilate. The mother would also act erratically during the visits and is typically finished with the visits before the entire scheduled time has elapsed. The Court finds from all of the above that the mother's use of profanity towards the child during visitation is indicative of the mother's mental state and the mother's refusal to allow the workers present at the visit to assist with the child is indicative of the mother's [in]stability.

         The instant case was initiated on March 2, 2016, when DCS filed a petition to terminate Mother's parental rights on the ground of mental incompetence; the petition alleged:

1.Respondent is incompetent to adequately provide for the further care and supervision of the child because Respondent's mental condition is presently so impaired and is so likely to remain so that it is unlikely that she will be able to assume the care of and responsibility for the child in the near future.
2.Tanya [G.] is the fifth child to be removed from Respondent's custody due to her mental condition. Following hearings that concluded on November 1, 2006, this Court found Respondent incompetent to parent and terminated her parental rights to two older half-siblings, []. Her parental rights to [] were terminated several years later on similar grounds. [] was placed in the custody of his paternal grandparents. Respondent's mental condition has not improved in any regard, and there is no reason to believe that she will ever be in a position to safely care for children.
3.Respondent gave birth to Tanya [G.] in a toilet at home and yelled for help from her boyfriend, James [O.]. They fished the baby out and then dropped her because she was slippery. They were brought to the hospital by ambulance. Respondent reported she had not known she was pregnant and Mr. O[.] agreed. He stated that he had taken her in off the street about three months before. She had received no prenatal care and had not been taking any prescribed psychotropic medication at least since he took her in. Respondent appeared confused, agitated, and delusional.
4. A psychiatric consultation resulted in Respondent's involuntary commitment. The evaluator noted that Respondent has a long history of mental illness including repeated emergency room treatment. She had been found on somebody's porch, had claimed twice to have been kidnapped, and on another occasion was found walking down the street without clothing. Her mental status examination concluded: "She is paranoid, disorganized, and irritable. Her conversation is loose. She contradicts herself. She has been talking to unseen others. She appeared to have chronic untreated mental illness. Her memory and concentration are poor. Her insight and judgment are currently impaired." The diagnostic assessment was Schizophrenia, untreated; currently delusional.
5. Respondent's history includes repeated hospitalizations and multiple psychological evaluations. According to such an evaluation in 2007, her "mental illness is severe, persistent and causing her to lack capacity/competence to understand facts and to make rational decisions based upon such facts." She has failed and refused to cooperate with treatment. She is often paranoid, easily angered, and her behavior is unpredictable.

         The termination hearing took place on November 14, 2016. On December 6 the court issued an order terminating Mother's parental rights.

         Mother filed her first Notice of Appeal on November 28, 2016, which was not signed by either Mother or her counsel. On February 7, 2017, this Court ordered Mother to file an amended notice of appeal; the trial court appointed appellate counsel for Mother, and an amended Notice of Appeal was filed on February 23, 2017. Mother presents the following issues for resolution:

I. Did the trial court err in finding by clear and convincing evidence, that the Mother was incompetent to adequately provide for the further care and supervision of the child because the Mother's mental condition was so impaired and was likely to remain impaired so that it is unlikely that the Mother may assume or resume the care and responsibility for the minor child as defined by Tennessee Code Annotated section 36-1-113(g)(8)(B)(i)?
II. Did the trial court err in finding by clear and convincing evidence, that termination of the parental rights of the Mother was in the best interest of the child as defined by Tennessee Code Annotated section 36-1-113(i)?

         II. STANDARD OF REVIEW

         Parents have a fundamental right to the care, custody, and control of their children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). However, that right is not absolute and may be terminated under certain circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep't of Children's Servs. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). However, because of the fundamental nature of parental rights, courts must apply a higher standard of proof when adjudicating termination cases. Santosky, 455 U.S. at 766-69. A court may terminate parental rights only if (1) the existence of at least one statutory ground is proved by clear and convincing evidence, and (2) it is shown by clear and convincing evidence that termination of parental rights is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         In light of the heightened standard of proof required, an appellate court must adapt the customary standard of review set forth by Rule 13(d) of the Tennessee Rules of Appellate Procedure. In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court's findings of fact, our review is de novo with a presumption of correctness, unless the evidence preponderates otherwise, in accordance with Rule 13(d) of the Tennessee Rules of Appellate Procedure. Id. We must then determine whether the facts, "as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements" necessary to terminate parental rights. Id. Clear and convincing evidence is "evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence, " which "produces a firm belief or conviction in the fact-finder's mind regarding the truth of the facts sought to be established." In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal citations omitted).

         III. ANALYSIS

         A. Jurisdiction

         We first address DCS' argument that the notice of appeal filed by Mother was "jurisdictionally deficient" because it was not signed by Mother, in violation of Tennessee Code Annotated section 36-1-124(d), or by her counsel, as required by Tennessee Rule of Civil Procedure 11.01(a), and that, because of this deficiency, the notice filed February 23, 2017, was untimely. We decline to dismiss this appeal on the basis urged.

         The technical record contains a form headed "IN THE JUVENILE COURT FOR KNOX COUNTY, TENNESSEE" and entitled "NOTICE OF APPEAL, " in which Mother's name is handwritten as the party taking the appeal and the name of this Court circled as the court to which the appeal is taken. The date of signature is written in as "the 28 day of November, 2016" and the form bears the Clerk's stamp as being filed at 10:19 a.m. on November 28, 2016. Next in the record appear two orders entered by the Juvenile Court on December 6, both of which reference a hearing on November 14; the first order was entered in the dependent and neglect proceeding and the second being the order terminating Mother's rights. Tennessee Rule of Appellate Procedure 4(d) allows that "a prematurely filed notice of appeal shall be treated as filed after the entry of the judgment from which the appeal is taken and on the day thereof." Thus, subject to DCS' contention that the November 28 notice was not signed, the notice was timely filed.

         The termination proceeding was initiated on March 2, 2016; Attorney Adam Moncier was appointed to represent Mother by order entered April 19;[3] there is no order relieving Mr. Moncier of his duties as counsel. The record does not reflect any other involvement by Mr. Moncier after the adjournment of the November 14 hearing. It is not disputed that Mother filled out and signed the form "NOTICE OF APPEAL" indicating a desire to have the termination of her rights reviewed. Under the circumstances presented, Mother's handwritten ...


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