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In re Miracle M.

Court of Appeals of Tennessee, Jackson

August 30, 2017

IN RE MIRACLE M. ET AL.

          Assigned on Briefs Date: July 3, 2017

         Appeal from the Juvenile Court for Shelby County No. AA6223 Dan H. Michael, Judge

         This is a termination of parental rights case. The trial court terminated Appellant Father's parental rights to two minor children. The trial court found that clear and convincing evidence supported termination based on the statutory grounds of abandonment by willful failure to support, abandonment by willful failure to visit, and persistence of the conditions that led to the children's removal to state custody. The trial court also found, by clear and convincing evidence, that termination of the Father's parental rights was in the children's best interests. Father appeals.[1] As to the ground of persistence of conditions, we conclude that the Department of Children's Services ("DCS") has not met its burden of proof, and therefore we reverse termination of Father's parental rights on this ground. The Court affirms the juvenile court's termination of Father's parental rights on the grounds of abandonment by willful failure to support and abandonment by willful failure to visit.

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

          James Franklin, Jr., Memphis, Tennessee, for the appellant, Jeremiah M.

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

          Arnold B. Goldin, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and John W. McClarty, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         I. Factual Background and Procedural History

         Jeremiah M. ("Father") is the legal father of Jerenikkia M. (d.o.b. October 2009) and the putative father of Miracle M. (d.o.b. July 2012) (together with Jerenikkia, "the Children"). [2]

         On August 5, 2014, Tonya M. ("Mother") brought Jerenikkia and Miracle to the hospital for immunizations. Mother reported that Jerenikkia had not been to a doctor since 2010, and Miracle had not been to a doctor since she was born. Medical staff reported that Jerenikkia was severely underweight, severely developmentally delayed, behind in immunizations, and suffering from a reflux issue that had not been addressed. Mother also reported that, since January 2014, she had neglected to give Jerenikkia eye drops prescribed to treat the child's glaucoma. Jerenikkia also required a leg brace due to a deformity in her leg; Mother reported the child had not worn the brace in two years. Miracle was also severely underweight and developmentally delayed. Furthermore, the Children were dirty, smelled of urine, and were covered in insect bites.

         On August 13, 2014, the juvenile court removed the Children from Mother's home due to medical neglect, malnourishment, and suspected child abuse. Father was incarcerated when the girls were initially placed into foster care and has an extensive arrest record dating back to 1984. Among other things, he has been arrested for domestic violence, burglary, malicious mischief, multiple DUIs, aggravated assault and battery, violation of child restraint laws, and felon in possession of a handgun. He currently has an income of $735.00 a month from Social Security disability.

         The Children have remained in DCS custody since August 2014. Although Father was incarcerated when DCS originally took custody of the Children, Family Service Worker Tramaine Lewis contacted Father and sent him a letter informing him that the Children had been taken into protective custody. Ms. Lewis did not receive a response. It was not until February of 2015, at a Child and Family Team Meeting, that Ms. Lewis met Father. Thereafter, Ms. Lewis testified that she attempted to contact Father through his sister, and she wrote him letters in an effort to update him on the case.

         In April 2015, the Children were adjudicated dependent and neglected due to environmental neglect, lack of supervision, nutritional neglect, and medical maltreatment. Father had a conference call with Ms. Lewis on July 9, 2015 to discuss a new permanency plan. Father testified that Ms. Lewis specifically informed him that his parental rights could be terminated if he did not exercise visitation with the Children during the next four months. Despite Ms. Lewis' admonition, Father still did not seek visitation with the Children. In fact, he repeatedly ignored Ms. Lewis' letters. While Father did attend some of Jerenikkia's medical appointments, he did not interact with the Children through therapeutic visitation. Nor did he provide any financial support. Indeed, Father admits that he has never provided financial support for the Children.

         On November 17, 2015, DCS filed a petition to terminate Father's parental rights. The trial court heard the petition on December 8, 2016. By order of December 16, 2016, the trial court terminated Father's parental rights on the grounds of abandonment by willful failure to support, abandonment by willful failure to visit, and persistent of the conditions that led to the Children's removal to state custody. The trial court also found that termination of Father's parental rights was in the Children's best interests. Father appeals.

         II. Issues

Father raises the following issues on appeal, which we restate as follows:
1. Whether sufficient statutory notice was provided for the grounds of abandonment for failure to support and failure to visit?
2. Whether the trial court erred in finding persistence of conditions when the children were not removed from Father's home?

         The Tennessee Supreme Court has directed this Court to consider the sufficiency of the trial court's findings with regard to each ground for termination and as to whether termination is in the child's best interest regardless of whether the parent challenges those findings on appeal. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016). Therefore, in addition to addressing Father's specific issues, we will also review the trial court's findings as to each of the grounds for termination.

         III. Standard of Review

         "A biological parent's right to the care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the Due Process Clauses of the federal and state constitutions." Carrington H., 483 S.W.3d at 522. Although constitutionally protected, parental rights are not absolute. Id. at 522. Tennessee law upholds the State's authority to terminate parental rights when necessary to prevent serious harm to children. Id. A decision terminating parental rights is final and irrevocable. See Tenn. Code Ann. § 36-1-113. Therefore, parents are constitutionally entitled to fundamentally fair procedures in termination proceedings. See Carrington H., 483 S.W.3d at 522.

          In order to ensure fundamental fairness in termination proceedings, Tennessee law imposes a heightened standard of proof-clear and convincing evidence-for the parent's benefit. See Tenn. Code Ann. § 36-1-113(c)(1); Carrington H., 483 S.W.3d at 522. The clear-and-convincing-evidence standard ensures that the facts supporting the statutory grounds for parental rights termination are highly probable before the State terminates a parent's fundamental rights. Carrington, 483 S.W.3d at 522.

         A court may terminate a person's parental rights only if the party seeking termination establishes: (1) the existence of at least one statutorily enumerated ground and; (2) that termination of parental rights would be in the best interest of the child. See Tenn. Code Ann. § 36-6-113(c). DCS bears the initial burden of establishing the statutorily enumerated grounds for termination by clear and convincing evidence. See Tenn. Code Ann. § 36-1-113(c)(1); In re Angela E., 303 S.W.3d 240, 251 (Tenn. 2010). Second, DCS must prove, by clear and convincing evidence, that the termination of the parent's rights is in the child's best interest. Tenn. Code Ann. § 36-1-113(c)(2); Angela E., 303 S.W.3d at 251.

         An appellate court applies the standard mandated by Tennessee Rule of Appellate Procedure 13(d) when reviewing a trial court's findings in termination proceedings. See Carrington H., 483, S.W.3d at 523; Angela E., 303 S.W.3d at 246. First, we review the trial court's specific factual findings de novo on the record with a presumption of correctness unless the evidence in the record preponderates otherwise. Tenn. R. App. P. 13(d); In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013). In light of the heightened burden of proof in termination proceedings, a reviewing court must then make its own determination as to whether the trial court's findings amount to clear and convincing evidence that the elements necessary to terminate parental rights have been established. Taylor B.W., 397 S.W.3d at 112. Whether the facts are sufficient to support termination ...


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