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In re Steevie A.

Court of Appeals of Tennessee, Jackson

December 14, 2017


          Assigned on Briefs September 1, 2017

         Appeal from the Chancery Court for Henderson County No. 26646 James F. Butler, Chancellor

         The trial court terminated Father's parental rights on grounds of: (1) abandonment by willful failure to visit; (2) abandonment by willful failure to support; (3) abandonment by failure to establish a suitable home; and (4) persistence of conditions. We reverse the grounds of abandonment by failure to establish a suitable home and persistence of conditions. In all other respects, we affirm the judgment of the trial court, including the termination of Father's parental rights.

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

          William Milam, Jackson, Tennessee, for the appellant, Steven A.

          Sara E. Barnett and Charles H. Barnett, III, Jackson, Tennessee, for the appellees, Michael S., Latisha S., Derek Y., and Tiffany Y.

          John Andrew Anderson, Jackson, Tennessee, Guardian Ad Litem.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Richard H. Dinkins, J., joined.




         The child at issue was born in March 2013 to parents Casondra A. ("Mother") and Steven A. ("Father").[2] On September 10, 2014, the Tennessee Department of Children's Services ("DCS") received a referral alleging that the child at issue was in danger and drug exposed. The report alleged that Father had barricaded himself in his home and would not allow Mother custody of the child. When DCS and law enforcement arrived at the home, Father cooperated but admitted that he had used methamphetamines in the last week. Father tested positive for marijuana only. Father informed DCS workers that Mother had also recently abused drugs. An investigation of the home revealed that Father had no proper crib for the child. As a result, DCS removed the child from Father's home and placed her with the child's maternal aunt and uncle, Petitioners/Appellees Michael ("Maternal Uncle") and Latisha S. ("Maternal Aunt, " and together with Maternal Uncle, "Legal Guardians").[3] The next day, the Henderson County Juvenile Court ("the juvenile court") entered an order finding that there was probable cause to believe that the child was dependent and neglected and placing custody of the child with DCS. On September 17, 2014, the juvenile court entered an order transferring custody of the child from DCS to Legal Guardians. Although DCS did not appear to retain custody of the child, it remained involved in this case until April 2015.

         On the same day, DCS filed a petition to adjudicate the child dependent and neglected. On December 9, 2014, the juvenile court entered an order finding the child dependent and neglected upon Mother's and Father's stipulations. In this order, both parties were granted supervised visitation. There is no dispute that Father exercised visitation until December 2014, when he informed the juvenile court that his relapsed alcoholism required that he attend a rehabilitation program. After December 2014, there is no dispute that Father did not exercise any visitation with the child. Thereafter, on May 5, 2015, the juvenile court entered a dispositional order allowing the child to remain in Legal Guardians' custody.[4] The order specifically stated that all prior orders regarding visitation remained in effect and that parents could petition "for visitation/increase in visitation when they have complied with all prior court orders and can prove to the [c]ourt that they can provide a safe and suitable home for the children, free from drug use." Finally, the order relieved DCS of any involvement in the case.

          At some point in 2015, Legal Guardians came to believe that it was in the child's best interest to reside with family friends, Appellee/Petitioners Tiffany and Derek Y. (together "Prospective Adoptive Parents, " and with Legal Guardians, "Petitioners"). According to the testimony, Prospective Adoptive Parents hoped to adopt a child and the two families determined that the child was a good fit with Prospective Adoptive Parents. In making this decision, Maternal Aunt testified that the two families spent considerable amounts of time together, leading to the child spending weekends with Prospective Adoptive Parents, and finally transitioning to living with Prospective Adoptive Parents full-time in approximately October 2015. At this time, Legal Guardians executed a power of attorney for a minor child in favor of Prospective Adoptive Parents. Prospective Adoptive Parents retained physical custody of the child at the time of trial, and there was no dispute that Prospective Adoptive Parents, rather than Legal Guardians, wished to adopt the child.

         On June 17, 2015, Legal Guardians filed a petition to terminate the parental rights of both Mother and Father in the Henderson County Chancery Court ("the trial court").[5]On August 3, 2015, Legal Guardians filed a motion to suspend visitation with Mother and Father. With regard to Father, the motion alleged that Father had called Maternal Aunt several times while she was at work "wanting to speak with the [c]hild." Legal Guardians asserted that these calls were harassing and that contact with Father would harm the child due to Father's long absence from her life. No order is contained in the record adjudicating Legal Guardians' motion. Instead, on October 16, 2015, the termination petition was voluntarily dismissed without prejudice as to Father. The same day, however, a separate petition to terminate Father's parental rights was filed under a different docket number. The petition alleged grounds of: (1) abandonment by willful failure to visit; (2) abandonment by willful failure to support; (3) abandonment by failure to establish a suitable home; and (4) persistent conditions. Curiously, Legal Guardians later sought to consolidate the separate cases, which request was granted by the trial court by the consent of the parties on January 21, 2016. On June 20, 2016, the trial court granted Legal Guardians permission to file an amended petition to add as co-petitioners Prospective Adoptive Parents, who hoped to adopt the child. The amended petition was filed the same day.

         A trial was held over several days in June and July of 2016. Legal Guardians confirmed that the child was placed in their care in September 2014. At the time, Maternal Aunt testified that Father informed her that he would not stop drinking despite the removal of the child. After a period of time in Legal Guardians' home, they determined that the child should live with Prospective Adoptive Parents, who wanted to adopt the child. Legal Guardians and Prospective Adoptive Parents therefore spent time together to create a gradual transition for the child from one home to the other. Although the child lived with Prospective Adoptive Parents full-time by the time of trial, both families testified that they spend considerable amounts of time together. Moreover, both families testified that the child has made a marked improvement since being removed from parents' custody. For example, while the child was initially afraid of men, both Prospective Adoptive Parents and Maternal Uncle testified that she no longer exhibits fear around them. Prospective Adoptive Parents also testified that the child refers to them as her parents and that she does not have any relationship with Father. As such, Prospective Adoptive Parents testified that removing the child from their home and placing her with a parent she does not know would be "traumatic" for the child.

         Maternal Aunt confirmed through her testimony that Father's visitation generally went well for a time but was terminated in December 2014, after Father appeared in court and informed the court that his drinking had deteriorated so that "he was throwing up into a bottle and re-drinking it." At that point, Maternal Aunt testified that the juvenile court informed Father that visitation would be suspended and that Father could petition the court to renew visitation once he received help for his alcoholism.

         Maternal Aunt next testified as to the calls by Father that prompted Legal Guardians to file the motion to terminate all contact between Father and the child. According to Maternal Aunt, Father called her several times around June of 2015, asking how the child was doing. Although Maternal Aunt testified that Father asked what he could do for the child, she testified that he never specifically offered financial support for the child, nor did he ask to visit with the child. In response, Maternal Aunt testified that she informed Father than he should speak with his attorney. There was no dispute that Legal Guardians received no financial support from Father in the months prior to the filing of the October 16, 2015 termination petition.

         Two DCS workers testified about their involvement with the family. The DCS workers generally testified that Father's initial home did not have a proper crib for the child and that Father subsequently moved into a trailer that was also unsuitable. During the time that DCS was involved in the case, the DCS workers testified that they met several times with parents and developed a plan that required parents to obtain proper housing and employment. The DCS workers also provided drug testing for the parents in order to permit visitation and recommended a drug rehabilitation facility to Father. It also appears that DCS worked to allow Father to obtain supervised visitation.

         Father generally admitted that the child's removal was a result of his and Mother's alcohol and drug problems. Father also admitted that his drinking became so bad that the juvenile court suspended his visitation in December 2014 and required that Father establish that he was sober to renew visitation. Father did not deny that he had been charged with upwards of five crimes since the child's birth, ranging from violating community corrections to theft.[6] In addition, Father was also arrested three times for domestic violence toward Mother. For example, in January 2015, Father was arrested and pleaded guilty to domestic violence against Mother, in an altercation that left Mother severely injured. Father admitted that the child had been present when he had been violent toward Mother in the past.

         Father testified, however, that his issues with violence all occurred when he was under the influence of drugs or alcohol, and that he had not used drugs or alcohol since January 2015. Father also testified that he had completed a 21-day program of rehabilitation following his release from jail on the domestic violence charge and currently attended Alcoholics Anonymous meetings regularly. Father submitted documentary proof of his completion of rehabilitation and parenting classes, as well as records from his probation officer showing that Father passed drug and alcohol screenings in February 2016, April 2016, and May 2016. Father testified that he is no longer on probation, that he lives in housing that is appropriate for the child, and that he has an appropriate plan for the care of the child should she be returned to his care. Father also noted that although Mother lived in the home with him for a time, he was forced to evict Mother because she did not remain sober. Father testified that he intends to initiate divorce proceedings once the termination proceeding was completed. Father submitted the testimony of several individuals with knowledge of his living situation and sobriety to support his testimony.

         Father further testified that he obtained steady employment in early June 2015, making him capable of paying child support for the child as of that time. According to Father, in April or May 2015 and again in June 2015, he called Maternal Aunt to inquire about visitation and support for the child.[7] Father testified, however, that Maternal Aunt rebuffed his efforts, even threatening to file harassment charges against Father. Father also testified that he could not send funds to Legal Guardians because he did not have their address. According to Father, a few weeks after his June 2015 call to Maternal Aunt, he received notice that a child support proceeding had been initiated and that he was to appear in juvenile court in December 2015. As such, Father testified his counsel directed him to take no action until that hearing date, in which he was ordered to pay child support. There is no dispute that Father has paid regular child support since December 2015. Father admitted, however, that he did not initiate the child support proceeding, but that it was initiated either by Legal Guardians or the State.

         The trial court took the matter under advisement and issued a final judgment on October 27, 2016. Therein, the trial court found that Petitioners had shown clear and convincing evidence of all grounds for termination and that termination was in the child's best interest. Father now appeals.[8]

         Issues Presented

         Father raises two issues in this case, which are restated from his brief:

1. Whether the trial court erred in finding that Father abandoned his child by willfully failing to visit or support the child.
2. Whether the trial court erred in finding termination of Father's parental rights in the child's best interest.

         Standard of Review

         As explained by the Tennessee Supreme Court:

A parent's right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although fundamental and constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at 250. "'[T]he [S]tate as parens patriae has a special duty to protect minors . . . .' Tennessee law, thus, upholds the [S]tate's authority as parens patriae when interference with parenting is necessary to prevent serious harm to a child." Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d 507, 522-23 (Tenn. 2016) (footnote omitted).

         Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)). A person seeking to terminate parental rights must prove both the existence of 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 D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for termination and the best interest inquiry must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); 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 M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id. at 653.

As opined by the Tennessee Supreme Court:
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. In re M.L.P., 281 S.W.3d [387, ] 393 [(Tenn. Ct. App. 2009)] (quoting In re Adoption of A.M.H., 215 S.W.3d [793], 810 [(Tenn. 2007)]). Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness. In re Angela E., 303 S.W.3d at 246.

In re Carrington H., 2016 WL 819593, at *12.

         When the resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge, who has had the opportunity to observe the witnesses and their manner and demeanor while testifying, is in a far better position than this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and credit to be given to any witness's testimony lies in the first instance with the trier of ...

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