Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Preston L.

Court of Appeals of Tennessee, Nashville

September 27, 2017

IN RE PRESTON L.

          Session August 22, 2017

         Appeal from the Circuit Court for Sumner County No. 2015-CV-1102 Joe Thompson, Judge.

         Mother and stepfather filed a parental termination action against the father of a minor child, and the trial court terminated the father's parental rights on the following grounds: (1) incarceration under a sentence of ten years or more and the child was under the age of eight when the sentence was entered; (2) willful failure to support during the four months prior to incarceration; and (3) wanton disregard. We reverse the trial court's determination that the petitioners presented clear and convincing evidence to support grounds of willful failure to support and wanton disregard. We affirm as to the ground of incarceration under a sentence of ten years or more and as to the trial court's best interest determination.

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

          Michael Wilson Taylor, Gallatin, Tennessee, for the appellant, Landon J.L.

          Nancy Krider Corley, Nashville, Tennessee, for the appellees, Ashley K.R. and Nicholas C.R.

          Andy D. Bennett, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and W. Neal McBrayer, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         Factual and Procedural Background

         Landon J.L. ("Father") and Ashley K.R. ("Mother") are the parents of Preston, born in September 2003. Father is currently incarcerated in Ohio. On October 1, 2015, Mother and Stepfather, Nicholas C.R., filed a petition for termination of Father's parental rights and for step-parent adoption. In their petition, Mother and Stepfather alleged that Father abandoned the child in the following ways:

a. He is incarcerated for a period of more than ten (10) years and will not be released from prison until after the child reaches majority on September 23, 2021; thus the Father has willfully abandoned his child pursuant to T.C.A. § 36-1-113(g)(6).
b. He has willfully failed to pay child support for four (4) months prior to the time he was charged, convicted, and incarcerated; thus Father has abandoned this child pursuant to T.C.A. § 36-1-102(1)(A)(i) and (iv) by his willful failure to pay child support.
c. He has willfully failed to visit for four (4) months prior to the time he was charged, convicted, and incarcerated; thus Father has abandoned this child pursuant to T.C.A. § 36-1-102(a)(A)(i) and (iv) by his willful failure to visit his child.
d. He has engaged in conduct prior to his incarceration that showed a wanton disregard for the welfare of his child pursuant to T.C.A. § 36-1-102(1)(A)(iv).

         Father filed a response to the petition, and the trial court appointed counsel to represent him.

         In April 2016, Father filed a motion to dismiss the termination petition on the grounds that the petitioners had failed to respond to his request for discovery that was served on them in December 2015; and that more than six months had passed since the filing of the petition and the matter had not been heard, contrary to the provisions of Tenn. Code Ann. § 36-1-113(k). A few days later, the petitioners filed a motion to set the case for trial. The trial court heard Father's motion to dismiss in May 2016 and, in an order entered on May 19, 2016, denied the motion. In an order entered on May 23, 2016, the case was set for trial on September 16, 2016.

         On September 1, 2016, Father filed a motion to continue the final hearing to July 2017 on the grounds that he "may be eligible for release under Ohio 'Judicial Release'" in March 2017. Once released from incarceration in Ohio, Father would have to serve eighty-two (82) days in prison in Indiana. Father argued that, if he were released early, he would "be available to participate in person" in the termination proceedings; he, therefore, requested that the court "continue the matter so that he may have an opportunity to be present in court to defend his parental rights." Father's motion was heard on September 8, 2016, and the trial court denied the motion, reasoning that there was no guarantee that Father would be released early and that it was not in the child's best interest to continue the matter. Father would be allowed to participate by video conferencing, if possible.

         The case was heard over two days in September and October 2016. Father participated by telephone. The court heard testimony from Mother, Preston, Stepfather, and Father. The trial court determined that Mother and Stepfather had proven three of the four grounds by clear and convincing evidence: (1) incarceration with a sentence of ten years or more when the child is under eight (8) years old, pursuant to Tenn. Code Ann. § 36-1-113(g)(6); (2) willful failure to support during the four months preceding incarceration, pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i) and (iv); and (3) wanton disregard, pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(iv). The court further found that termination was in the best interest of the child. The court, therefore, ordered that Father's rights be terminated and that Stepfather be allowed to adopt the child.

         On appeal, Father raises the following issues:

(1)Whether the trial court erred in finding that Father willfully failed to pay child support in the four-month period immediately preceding his incarceration.
(2)Whether the trial court erred in finding that Father displayed wanton disregard for his child prior to his incarceration.
(3)Whether the trial court erred in allowing the termination petition to be heard beyond the six-month time frame contemplated in Tenn. Code Ann. § 36-1-113(k) and in denying Father's motion to dismiss; and whether the trial court erred in denying Father's motion for a continuance pending Father's possible early release.
(4)Whether the trial court erred in finding that termination of Father's parental rights was in the child's best interest.

         Standard of Review

         Under both the federal and state constitutions, a parent has a fundamental right to the care, custody, and control of his or her own child. Stanley v. Illinois, 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). This right is not absolute, however. If a compelling state interest exists, the state may interfere with parental rights. Nash-Putnam, 921 S.W.2d at 174-75 (citing Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)). Our legislature has enumerated the grounds upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g). A parent's rights may be terminated only where a statutory ground exists. In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

         Because terminating parental rights affects fundamental constitutional rights, termination cases require a court to apply a higher standard of proof. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn. Ct. App. 2006). First, a court must determine by clear and convincing evidence that at least one of the statutory grounds for termination exists. Tenn. Code Ann. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). After a court makes this determination, a court must find by clear and convincing evidence that termination is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c)(2); In re Valentine, 79 S.W.3d at 546. "Clear and convincing evidence 'establishes that the truth of the facts asserted is highly probable, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.'" In re Serenity B., No. M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations omitted)).

         Because of the heightened standard of proof required in termination cases, we must adapt the customary standard of review established by Tenn. R. App. P. 13(d). Id. In accordance with Tenn. R. App. P. 13(d), we review the trial court's findings of fact de novo with a presumption of correctness unless the evidence preponderates otherwise. Id. Next, we must determine whether the facts establish by ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.