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In re Jayden R.

Court of Appeals of Tennessee, Nashville

August 11, 2017

IN RE JAYDEN R., ET AL.

          Assigned on Briefs July 3, 2017

          Appeal from the Juvenile Court for Warren County No. 16-JV-736 William M. Locke, Judge

         This appeal concerns termination of parental rights. The Tennessee Department of Children's Services ("DCS") filed a petition in the Juvenile Court for Warren County ("the Juvenile Court") seeking to terminate the parental rights of Dara C. ("Mother") to her minor children Jayden R., Kara C., and Jaxson C. (collectively, "the Children").[1]DCS also sought to terminate the parental rights of Jonathan C. ("Father") to Kara C. and Jaxson C.[2] After a trial, the Juvenile Court entered an order terminating Mother's parental rights to the Children and Father's parental rights to Kara and Jaxson. Mother and Father appealed. DCS argues that Mother's and Father's failure to sign their notices of appeal renders this appeal jurisdictionally deficient. We agree that Mother's and Father's failure to sign their notices of appeal as required by Tenn. Code Ann. § 36-1-124(d) renders this appeal jurisdictionally deficient, and it is dismissed on that basis. Even if the appeal were not jurisdictionally deficient, we would, given this record, affirm the Juvenile Court's judgment terminating Mother's and Father's parental rights. We dismiss this appeal for lack of jurisdiction.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed; Case Remanded

          Tammy H. Womack, McMinnville, Tennessee, for the appellant, Jonathan C. Christina S. Stanford, Manchester, Tennessee, for the appellant, Dara C.

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

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Kenny W. Armstrong, J., joined, and Andy D. Bennett, J., filed separate dissenting opinion.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         In April 2015, DCS received a report alleging child abuse concerning Jaxson, then two months old. Jaxson was admitted to the hospital owing to his insufficient weight gain. X-rays revealed a spiral fracture to the mid tibia. Investigators questioned Mother and Father about the injuries. Mother and Father blamed Jaxson's sister, Kara, for his injuries. The Children were removed from Mother's and Father's home and have remained continuously in foster care since then. In May 2015, Mother and Father were arrested for aggravated child neglect. In October 2015, Mother and Father were convicted of aggravated child neglect of a child eight years old or younger and were sentenced to fifteen years in prison. In November 2015, the Juvenile Court entered an order adjudicating the Children dependent and neglected. The Juvenile Court also found that Jaxson was the victim of severe child abuse by Mother and Father. This order apparently was not appealed. Permanency plans were entered for the parents.

         On June 9, 2016, DCS filed its petition seeking to terminate Mother's and Father's parental rights. This case was tried in September 2016. Neither Mother nor Father testified at trial. Several department workers testified to their knowledge of the case. Mother's and Father's convictions for aggravated child neglect were entered into the record and served as the main basis for DCS's case against the parents. The Children lived in multiple foster homes before arriving in their current home. The Children suffer from behavioral issues which have complicated their finding a permanent home.

         In October 2016, the Juvenile Court entered its final judgment terminating Mother's and Father's parental rights. The Juvenile Court found five identical grounds for each parent: wanton disregard, persistent conditions, severe child abuse, prior conviction of severe child abuse with a sentence of greater than two years, and incarceration on a sentence of ten or more years with the children being less than eight years of age. The Juvenile Court found also that termination of Mother's and Father's parental rights is in the Children's best interest. We quote as relevant from the Juvenile Court's order:

23. The Respondents, [Mother] and [Father], engaged in such conduct prior to incarceration as to exhibit a wanton disregard for the welfare of the children. [Mother] and [Father] have been convicted of aggravated child neglect of a child 8 years or less. Said Respondents' conduct in wanton disregard for the welfare of the children was to commit severe child abuse against [Jaxson], whereby he sustained injuries including a spiral fracture on the mid tibia, and failure to thrive.
25.The children have been removed from the custody of their parents for more than six (6) months; the conditions which led to the removal of the children from the home of [Mother] and [Father] still exist and other conditions exist which in all probability would cause the children to be subject to further abuse and/or neglect, making it unlikely that the children could be returned to [Mother] or [Father] in the near future; there is little likelihood that these conditions will be remedied at an early date so that the children can be returned to [Mother] or [Father] in the near future; and the continuation of the parent or guardian and child relationship greatly diminishes the children's chance of an early integration into a stable and permanent home.
26.The conditions that led to the removal of the children from the home of [Mother] and [Father] were their physical abuse and neglect of [Jaxson].
27. The conditions that prevent the children's return to the home of [Mother] and [Father] are as follows: [Mother] and [Father] are incarcerated. They did not complete the requirements of the permanency plans, including submitting to alcohol and drug consultations and following all recommendations including aftercare; completing forensic parenting assessments and following all recommendations; and having psychological evaluations with an approved provider and following all recommendations.
28.[Mother] and [Father] have committed severe child abuse as defined by Term. Code Ann. § 37-1-102(21) against [Jaxson], who is the subject of this Petition and who is a sibling to [Kara], a halfsibling to [Jayden], and who resided in the home of the Respondents.
29. On November 19, 2015 the Juvenile Court of Warren County, Tennessee found [Jaxson] to be a victim of severe child abuse as defined by Term. Code Ann. § 37-1-102(21), perpetrated by [Mother] and [Father].
30.[Mother] and [Father] have been sentenced to more than two (2) years imprisonment for conduct against [Jaxson], a child who is the subject of this Petition and who is a sibling to [Kara], a half-sibling to [Jayden], and who was residing permanently with [Kara] and [Jayden]. [Father] was convicted on October 14, 2015 of aggravated child neglect of a child 8 years of age or less and was sentenced to 15 years. On October 14, 2015, [Mother] was convicted of aggravated child neglect of a child 8 years of age or less and was sentenced to 15 years.
31. [Mother] and [Father] have been confined in a correctional or detention facility by Order of the Court as a result of a criminal act under a sentence of ten (10) or more years and the children who are the subject of this Petition were under eight (8) years of age at the time the sentence was entered by the Court. On October 14, 2015, [Mother] and [Father] were each convicted of aggravated child neglect of a child 8 years of age or less and were each sentenced to 15 years.
2. [Mother] and [Father] have committed physical abuse and neglect toward a child in the household. [Mother] and [Father] were found to be perpetrators of severe child abuse against [Jaxson] and were convicted of aggravated child neglect of a child 8 years of age or less.
3. The children are placed in a foster home that wishes to adopt the children.
4. The children have established a strong bond with the foster parents.
5. A change of caretaker and physical environment is likely to have a negative effect on the children's emotional, psychological and/or medical condition.
6. The children need stability of placement.

          Mother and Father appealed the termination of their parental rights to this Court.

         Discussion

         Neither Mother nor Father raise as issues on appeal each of the grounds found against them. We are, nevertheless, obliged to review all of the grounds found for termination of parental rights. Identical grounds were found for both parents. Therefore, we restate Mother's and Father's issues on appeal as follows: (1) whether the Juvenile Court erred in finding the ground of wanton disregard; (2) whether the Juvenile Court erred in finding the ground of persistent conditions; (3) whether the Juvenile Court erred in finding the ground of severe child abuse; (4) whether the Juvenile Court erred in finding the ground of prior conviction of severe child abuse with a sentence of greater than two years; (5) whether the Juvenile Court erred in finding the ground of incarceration on a sentence of ten or more years with the children under eight years of age; and, (6) whether termination of Mother's and Father's parental rights is in the best interest of the Children. DCS raises its own separate issue of whether Mother's and Father's unsigned notices of appeal render their appeal jurisdictionally deficient.

          We first address DCS's issue of whether Mother's and Father's failure to sign their notices of appeal renders this appeal jurisdictionally deficient. Tenn. Code Ann. § 36-1-124(d), which took effect July 1, 2016, provides: "Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant." In the very recent case of In re Gabrielle W., No. E2016-02064-COA-R3-PT, 2017 WL 2954684 (Tenn. Ct. App. July 11, 2017), no appl. perm. appeal filed as of Aug. 4, 2017, this Court considered the issue of whether an appellant's failure to sign the notice of appeal in a termination of parental rights action renders the appeal jurisdictionally deficient. After discussion of analogous laws and their interpretation in other states, we concluded:

In these cases, dealing with termination of parental rights, the courts strictly followed the language of the statutes and rules. This state's statute is just as unforgiving. Neither in the Tennessee Code Annotated nor in the Tennessee Rules of Appellate Procedure is there a safety valve or means of waiver for the requirement of the appellant's signature. Therefore, based on the language of the statute, the absence of Guardian's signature on the notice of appeal is a jurisdictional default, and the appeal must be dismissed.[3]
As the issue regarding the statute has not been previously ruled upon, in the event our holding is overturned on appeal, we note that even if the notice of appeal had been signed by Guardian in this case and the court had jurisdiction over the appeal and considered it on its merits, the evidence ...

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