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 L.M.H.

Court of Appeals of Tennessee, Knoxville

September 28, 2017

In re L.M.H., et al.

          Assigned on Briefs August 1, 2017

         Appeal from the Juvenile Court for Knox County No. 139836 Timothy E. Irwin, Judge

         In this termination of parental rights case, the Department of Children's Services filed a petition to terminate the parental rights of J.M.F. (father) with respect to L.M.H. and K.K.F. (the children).[1] DCS alleged the following grounds for termination: (1) persistence of conditions; and (2) substantial noncompliance with the permanency plan. DCS also sought to terminate father's rights with respect to L.M.H. on the ground of severe child abuse. The trial court entered an order finding clear and convincing evidence supporting each ground for termination. By the same quantum of proof, the trial court found that termination of father's rights is in the best interest of the children. Father appeals. We affirm.

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

          Ben H. Houston II, Knoxville, Tennessee, for the appellant, J.M.F.

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

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which W. Neal McBrayer and Arnold B. Goldin, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         L.M.H. was born in February 2011. On February 12, 2015, K.K.F. tested positive for drugs at birth. On March 20, 2015, DCS filed a petition for a restraining order, asking the court to find the children dependent and neglected. Following a hearing on March 30, 2015, the court found the children to be dependent and neglected due to mother's substance abuse issues. The trial court also found K.K.F. to be the victim of severe child abuse by the mother based on her prenatal drug use. The trial court allowed the children to remain in father's custody and ordered that mother would have no contact with the children.

         On May 12, 2015, the guardian ad litem filed an emergency motion to review the children's placement. The GAL alleged that father had no income to support the children because he had lost his job; that he was providing inappropriate care to the children; and that he was not participating in court-ordered services. On June 16, 2015, the court found probable cause that the children were dependent and neglected. The court found that father was not complying with K.K.F.'s need for physical therapy; that he was not cooperating with the GAL; and that he was allowing mother to have contact with the children in violation of the court's order. As a consequence, the court placed the children in the temporary custody of DCS for foster care.

         When the children entered foster care, they had considerable problems. K.K.F. suffered from torticollis, a condition affecting her neck and rendering her unable to hold up her head. She was in need of physical therapy to avoid surgery. Also, her head was misshaped, and she had an unhealed sore on her head that left a scar. With respect to L.M.H., the foster mother testified that he "had a lot of trouble attaching to anyone really, he had a lot of anger, he had a lot of behavioral issues." She stated that he "could be extremely violent and destructive" and was behind educationally.

         On June 26, 2015, a permanency plan was developed for father. The plan required father to do the following: (1) complete a mental health evaluation and provide accurate and thorough information; (2) cooperate with DCS and all service providers; (3) provide a stable and safe home environment; and (4) maintain a legal source of income sufficient to provide for the family. The court later modified the plan to add two requirements, i.e., that father complete basic parenting classes and complete an alcohol and drug assessment if he fails a drug screen. On September 16, 2015, the court ratified the permanency plan.

         The trial court held a permanency hearing and found father to be noncompliant. The court found that father had failed to complete a mental health assessment until September 8, 2015, despite knowing that this had been a requirement since June 2015. Additionally, the court found that father was not providing an appropriate home for the children because he was living with mother who suffered from substance abuse issues. The court ordered that the children would remain in the temporary custody of DCS.

         L.M.H. and his half-brother[2] disclosed to the foster parents that father had been abusive. L.M.H. reported that father hit him with a hanger and threw him off a bunk bed. On October 8, 2015, L.M.H. began treatment with a therapist. L.M.H. reported to the therapist that father was verbally and physically aggressive with him. L.M.H. and his half-brother both reported to the therapist that L.M.H. was hit with a belt, hit in the genitals, kicked, thrown to the floor, and thrown up against a wall. Early in therapy, the therapist diagnosed L.M.H. with post-traumatic stress disorder (PTSD). The therapist testified that "when they came for therapy, their behavior was very poor, and that's typically a true reflection of kids who have experienced trauma." She reported that L.M.H. "will need therapy for a very long time to address the significant trauma symptoms he has exhibited." Based on her treatment of L.M.H., she could not recommend that L.M.H. be returned to father's home. She found that it "would be psychologically damaging to remove [L.M.H.] from the current foster home . . . and would disrupt the progress he is making and return him to a state of fear and anxiety."

         On November 4, 2015, DCS filed a motion to suspend father's visitation with the children based upon the recommendation of the therapist. DCS asserted that "it appears that the children have significantly worse behavior after visits with their parents and this behavior can last for several days after visits." DCS asked the court to suspend visitation until the therapist "is of the opinion that the children can initiate supervised contact with their parents without the likely danger of psychological harm which will also necessitate progress for the parents on their issues as well." The court entered an order suspending visitation.

         After father's visitation with the children was suspended, he failed to maintain contact with DCS. On July 6, 2016, DCS filed a petition to terminate father's parental rights to the children. DCS alleged the following grounds to terminate father's rights: (1) persistence of conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3); and (2) substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-112(g)(2). DCS also alleged that L.M.H. is the victim of severe child abuse pursuant to Tenn. Code Ann. §§ 36-1-113(g)(4) and 37-l-102(b)(22). The trial court found clear and convincing evidence supporting each ground for termination. The court also found that termination of father's rights is in the best interest of the children. He appeals.

         II.

         Father raises the following issues on appeal as taken verbatim from his brief:

Did the trial [c]ourt err by allowing hearsay statements made by the children into evidence under circumstances that did not indicate trustworthiness?
Was [DCS] barred by the doctrine of res judicata as well as by the plain language of Tenn. Code Ann. § 37-1-129(b)(2) from pursuing a case of severe abuse against [f]ather?
Did the trial [c]ourt err by terminating the parental rights of [f]ather for severe abuse pursuant to Tenn. Code Ann. §§ 36-1-113(g)(4); 37-l-102(b)(22)(B); and 37-l-102(b)(22)(C)?
Did the trial [c]ourt err by terminating the parental rights of [f]ather for substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2)?
Did the trial [c]ourt err by terminating the parental rights of [f]ather for persisten[ce of] conditions pursuant to Tenn. Code Ann. §36-1-113(g)(3)?
Did the trial [c]ourt err by finding that . . . termination of [f]ather's parental rights was in the best interest[] of his children . . . ?

(Italics in original; paragraph numbering in original omitted.)

         III.

         A parent has a fundamental right, based on both the federal and state constitutions, to the care, custody, and control of his or her child. Stanley v. Ill. 405 U.S. 645, 651 (1972); In re Angela K, 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute. The State may interfere with a parent's rights in certain circumstances. In re Angela E., 303 S.W.3d at 250. Our legislature has listed the grounds upon which termination proceedings maybe brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, In re Angela E, 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and a parent's rights may be terminated only where a statutory basis exists. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

         To terminate parental rights, a court must determine by clear and convincing evidence the existence of at least one of the statutory grounds for termination and that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). "Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings." In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted). Unlike the preponderance of the evidence standard, "[e]vidence satisfying the clear and convincing standard establishes that the truth of the facts asserted is highly probable." In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

         Once a ground for termination is established by clear and convincing evidence, the trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). "The best interest[ ] analysis is separate from and subsequent to the determination that there is clear and convincing evidence of grounds for termination." Id. at 254. The existence of a ground for termination "does not inexorably lead to the conclusion that termination of a parent's rights is in the best interest of the child." In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).

         We are required to review all of the trial court's findings with respect to grounds and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) ("[W]e hold that in an appeal from an order terminating parental rights the Court of Appeals must review the trial court's findings as to each ground for termination and as to whether termination is in the child's best interest[ ], regardless of whether the parent challenges these findings on appeal.")

The Supreme Court has stated our standard of review:
An appellate court reviews a trial court's findings of fact in termination proceedings using the standard of review in Tenn. R. App. P. 13(d). Under Rule 13(d), appellate courts review factual findings de novo on the record and accord these findings a presumption of correctness unless the evidence preponderates otherwise. In light of the heightened burden of proof in termination proceedings, however, the reviewing court must make its own determination as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights. The trial court's ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness. Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness.

Id. at 523-24 (internal citations omitted). "When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to . . . the trial court's factual findings." In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034, at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).

         IV.

         A.

         In his brief, father asserts that the trial court erred in allowing the foster mother to testify about statements that L.M.H. made to her regarding father's abuse. Father objected to the testimony on the basis of hearsay, but the court overruled the objection. The court found that the statements were a "child's unsolicited statement regarding ...


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.