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In re Brianna B.

Court of Appeals of Tennessee, Jackson

December 15, 2017

IN RE BRIANNA B.

          Assigned on Briefs November 1, 2017

         Appeal from the Juvenile Court for Hardin County No. 2017-JV-2051 Daniel L. Smith, Judge

         This appeal involves the termination of a father's parental rights to his minor child. The father is currently serving an eleven-year prison sentence after pleading guilty to vehicular homicide, with the victim being the child's mother. The child's maternal aunt and uncle, who had been granted custody of the child, filed a petition to terminate the father's parental rights. The trial court terminated the father's parental rights upon finding by clear-and-convincing evidence that four grounds for termination were proven, and that termination was in the child's best interest. The father appeals. We reverse the decision of the trial court as to three of the grounds for termination. However, we affirm the trial court's decision as to one ground, and that termination of the father's parental rights is in the child's best interest.

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

          Terry Lee Dicus, Jr., Savannah, Tennessee, for the appellant, Shane B.

          Chadwick G. Hunt, Savannah, Tennessee, for the appellees, Waylon M. and Nicole M.

          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

         BACKGROUND AND PROCEDURAL HISTORY

         Shane B. ("Father, " or "Appellant") is the legal father of Brianna B. (d.o.b October 2014) (the "child").[1] On May 28, 2015, Brianna B.'s biological mother Wyndy H. ("Mother") was killed in a motor vehicle accident, in which Mother was a passenger in the vehicle and Father was the driver. Father was also seriously injured in the accident, and unable to care for the child. Accordingly, on the same day of the accident, Father gave physical custody of Brianna B. to the child's maternal grandfather Keith M. ("Grandfather") and his wife Jennifer M. ("Grandmother").

         According to the trial court's order of August 22, 2017, on June 15, 2015, the child was placed in the legal custody of Grandfather and Grandmother.[2] Father was arrested for his role in Mother's death on October 27, 2015, and ultimately he pled guilty to vehicular homicide and DUI. On June 21, 2016, Father was sentenced to eleven years of imprisonment.

         Also, according to the trial court's order of August 22, 2017, on August 22, 2016, [3]the child was adjudicated dependent and neglected, and legal custody was awarded to Mother's brother Waylon M. ("Uncle") and his wife Nicole M. ("Aunt"). The child has resided with them since that date at their home in Florida.

         On February 13, 2017, Aunt and Uncle filed a petition seeking the termination of Father's parental rights on the following grounds: (1) abandonment by failure to visit; (2) abandonment by failure to support; (3) abandonment by failure to establish a suitable home; (4) abandonment by incarceration; (5) persistence of conditions; (6) incarceration with a child under age eight and a sentence over ten years; (7) wrongful death of the other parent; (8) parental incompetence; and (9) failure to assume responsibility. Moreover, the petition stated that termination of Father's rights would be in the best interest of the child.

         After Father was provided notice, a hearing was held on the petition to terminate his parental rights on May 15, 2017. Father was represented by appointed counsel at the hearing, and the child was represented by an appointed guardian ad litem. At the hearing, Aunt, Uncle, Father, and Grandfather testified. On May 22, 2017, the trial court entered an order terminating Father's parental rights on the following grounds: (1) incarceration with a child under age eight and a sentence over ten years;[4] and (2) persistence of conditions. The trial court also found that it was in the child's best interest to terminate Father's parental rights.

         On June 8, 2017, Father timely appealed. However, on August 7, 2017, because the trial court failed to rule on all claims asserted in the petition, this Court ordered Father to obtain a final order. On August 22, 2017, the trial court entered an "Amended Order Terminating Parental Rights and Final Decree of Guardianship, " holding that Aunt and Uncle had established the following grounds for termination of Father's parental rights: (1) incarceration with a child under age eight and a sentence over ten years;[5] (2) incarceration at the time of the institution of the termination proceedings when the parent has engaged in conduct prior to incarceration exhibiting a wanton disregard for the welfare of the child;[6] (3) abandonment by failure to establish a suitable home;[7] and (4) persistence of conditions.[8] On August 24, 2017, Father filed an amended notice of appeal. The appeal is now properly before this Court.

         ISSUES PRESENTED

         Father raises a single issue on appeal:

I. Whether the trial judge erred in determining that termination of Father's parental rights is in the best interest of the child.

         The Tennessee Supreme Court has directed this Court to consider the sufficiency of the trial court's findings in regards to each statutory ground upon which termination is granted and as to whether termination is in the child's best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016). We must consider the sufficiency of these findings regardless of whether the parent challenges those findings on appeal. Id. Therefore, in addition to addressing the sole issue raised by Father, we will also review the trial court's findings as to the following statutory grounds upon which the trial court granted termination of Father's parental rights:

1. Incarceration under the circumstances described in Tennessee Code Annotated Section 36-1-113(g)(6).[9]
2. Abandonment by incarceration under the circumstances described in Tennessee Code Annotated Section 36-1-102(1)(A)(iv).
3. Abandonment by failure to establish a suitable home, as described in Tennessee Code Annotated Section 36-1-102(1)(A)(ii).
4.Persistence of the conditions that led to the removal of the child from the parent's custody, as described in Tennessee Code Annotated Section 36-1-113(g)(3).

         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." In re Carrington, 483 S.W.3d at 522. Although constitutionally protected, parental rights are not absolute. Id. at 522. Tennessee courts are vested with the 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 In re Carrington, 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); In re Carrington, 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 right. In re Carrington, 483 S.W.3d at 522. Such evidence "produces in a fact-finder's ...


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