IN RE MIRACLE M. ET AL.
Assigned on Briefs Date: July 3, 2017
from the Juvenile Court for Shelby County No. AA6223 Dan H.
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. 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.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Reversed in Part, Affirmed in Part, and Remanded
Franklin, Jr., Memphis, Tennessee, for the appellant,
Herbert H. Slatery, III, Attorney General and Reporter; and
Jordan K. Crews, Assistant Attorney General, for appellee,
Tennessee Department of Children's Services.
B. Goldin, J., delivered the opinion of the Court, in which
Frank G. Clement, Jr., P.J., M.S., and John W. McClarty, J.,
B. GOLDIN, JUDGE
Factual Background and Procedural History
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
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.
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.
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.
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.
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.
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
2. Whether the trial court erred in finding persistence of
conditions when the children were not removed from
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.
Standard of Review
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.
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.
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.
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 ...