In re BROOKE E. et al.
Session August 24, 2017
from the Juvenile Court for Stewart County No.
81JC1-2015-JT-03 Andy Brigham, Judge
a termination of parental rights case involving an almost
nine-year-old child, who was removed from his parents'
custody after allegations of sexual abuse, physical abuse,
and a violation of the prior visitation order. On June 26,
2015, the Stewart County Juvenile Court ("trial
court") granted temporary legal custody of the child to
the Tennessee Department of Children's Services
("DCS"). The child was immediately placed in foster
care, where he has remained since that date. Following an
adjudicatory hearing, the trial court entered an order,
finding the child dependent and neglected as to both parents.
The father filed a notice of appeal from the adjudicatory
hearing order, which appeal was still pending during trial in
this matter. On September 1, 2015, DCS filed a petition to
terminate the parental rights of the father. Following a bench
trial, the trial court terminated the father's parental
rights to the child upon the grounds that (1) prior to
incarceration, the father had abandoned the child by
exhibiting a wanton disregard for the child's welfare,
(2) the conditions that led to the child's removal from
the parents' custody persisted, and (3) he had committed
severe abuse against a half-sibling of the child. The court
also found clear and convincing evidence that termination of
the father's parental rights was in the best interest of
the child. The trial court declined to terminate the
mother's parental rights after finding that said
termination was not in the best interest of the child. The
father has appealed. Having determined that there was not a
final adjudicatory hearing order for purposes of res
judicata due to a pending appeal, we reverse the trial
court's ruling regarding the statutory ground of
persistence of conditions. We conclude that the trial court
erred by including in its decision portions of evidence from
the adjudicatory hearing order, which was pending on appeal,
but we determine this error to be harmless. We affirm the
trial court's judgment in all other respects, including
the termination of Father's parental rights to the child.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed; Case Remanded
Elizabeth A. Fendley Hahn, Clarksville, Tennessee, for the
appellant, Toby E.
Herbert H. Slatery, III, Attorney General and Reporter, and
Kathryn A. Baker, Assistant Attorney General, for the
appellee, Tennessee Department of Children's Services.
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and W. Neal McBrayer, J.,
R. FRIERSON, II, JUDGE.
Factual and Procedural History
Child, Steven E. ("the Child") was born in October
2007 to Toby E. ("Father") and Kelly E.
("Mother"). The matter before us involves the
termination of Father's parental rights to the Child, who
was almost nine years old at the time of trial. Although the
Child's siblings were also removed from the parents'
home around the same time as the Child, this termination
proceeding involves solely the Child. This action began when DCS
filed a petition with the trial court on September 1, 2015,
seeking to terminate Father's and Mother's parental
rights to the Child. In its petition regarding Father, DCS
alleged as statutory grounds that (1) Father had abandoned
the Child by failing to provide a suitable home for him, (2)
Father had abandoned the Child by failing to support the
Child, (3) Father had abandoned the Child by engaging in
conduct exhibiting a wanton disregard for the welfare of the
Child prior to Father's incarceration, (4) Father had
committed severe child abuse against a half-sibling of the
Child, and (5) the conditions leading to the Child's
removal from Father's custody still persisted. DCS
further alleged that termination of Father's parental
rights was in the best interest of the Child.
to trial, DCS chose not to pursue the allegation regarding
the ground of abandonment by failure to support. The trial
court conducted a bench trial on October 24, 2016, during
which Mother, Father, Brooke, DCS representatives, and the
Child's foster parent testified. Dr. Victor Pestrak
presented testimony as an expert witness at the adjudicatory
hearing on October 29, 2012. Dr. Pestrak's previous
testimony was admitted at trial because he was deceased and,
therefore, unavailable at the time of the termination trial.
Father also appeared and testified during trial
notwithstanding the fact that he was incarcerated at the
trial testimony established that Mother and Father began
living together in April 2007 with Father's three
children, Brooke, Jacob, and Haley, and Mother's child,
Winter. The Child was born to Mother and Father in October
2007. Mother and Father subsequently married in March 2010.
After the children were removed from the parents'
custody, the parents had another child, Ethan, who remained
in Mother's custody. Mother and Father eventually
divorced in April or May of 2014. At trial, both
Mother and Father denied being together in an ongoing
relationship. Father testified that his children were
previously removed from his custody briefly for excessive
discipline to the child, Brooke. The trial court's
judgment reflects that Brooke was placed in her
grandfather's custody in 2005.
to the trial court record, Haley and Brooke had disclosed
sexual abuse by Father, and Jacob and Haley had disclosed
physical abuse by Father. Initially, the trial court entered
a temporary restraining order prohibiting all contact between
Father and the Child. Although Father's children were
placed into DCS custody, Mother was permitted to retain
custody of the Child and Winter. At some point, the trial
court modified its initial order to allow Father to exercise
four hours of therapeutic visitation with the Child each
month. On May 17, 2012, the trial court removed the Child
from Mother's custody and placed him into DCS custody.
According to Mother, the Child was removed from her custody
after Father came onto the premises where she and the Child
were residing, violating the trial court's visitation
trial court conducted an adjudicatory hearing on October 29,
2012, and subsequently entered an order on January 4, 2013,
finding, inter alia, that Haley, Brooke, Jacob,
Winter, and the Child were dependent and neglected and that
Haley and Brooke had been severely abused by both Father and
Mother. The dispositional hearing order, entered in March
2013, provided that it was in the Child's best interest
to remain in DCS custody and that DCS was relieved of its
statutory duty to provide reasonable efforts to reunite
Father with the Child. The adjudicatory and dispositional
hearing orders were appealed by Father to the Stewart County
Circuit Court, and that appeal was still pending at the time
of the hearing concerning the termination of parental rights
trial, Mother testified that Father had been emotionally and
verbally abusive to her since 2007 and that his behaviors had
later escalated to physical abuse. Mother described an
incident that occurred shortly before the children were
removed from the parents' custody when Father was
physically abusive to her. According to Mother, Father
grabbed her by the neck, causing her to fall to the floor.
Mother testified that she told Father to "get off of
[her]" but that he squeezed tighter and "told [her]
to shut the f*** up." Mother explained that Father
became angry when she informed him that she would take the
Child and leave. Father responded by saying, "he would
dump [her] in the well out back and nobody would ever
know." It is undisputed that both Haley and Brooke were
present at the time of this altercation. Brooke attempted to
intervene to pull Father off Mother. According to Father,
Mother was threatening to take the Child away from him when
he lost control of his temper and placed his hands around
Mother's neck for "a split second." Brooke
noted that she observed an incident when Father was on top of
Mother and choking her.
further related that Father arrived at their home in December
2011, saw her packed bag, and became angry. She observed
Father entering the home to retrieve a gun and heard him
mention something about ending his life. According to Mother,
Father thereafter "headed down the street with a
gun." Father testified that he had lost everything and
did not deny that he left his home with a weapon and
proceeded in the direction of the home of Latisha H., who is
the mother of Brooke, Haley, and Jacob. Father further
stated, "I was going to blow her head off."
also testified regarding an incident that occurred in May
2014, after the Child was placed into DCS custody, resulting
in Father's arrest for domestic assault against Mother.
According to Mother's account of the event, as Father
followed her in his truck while she was driving from his
home, he nearly caused her to crash into his vehicle. Mother
explained that Father "sped in front of [her], spun out,
[and] hit the guardrail, " forcing Mother to "slam
on [her] brakes to keep from hitting him." Mother then
returned Ethan to Father's home so that Father could tell
him goodbye. Once they arrived, Father opened the car door
and removed the keys from the ignition of Mother's
vehicle. According to Mother, Father also grabbed her
cellular telephone and broke it by throwing it upon the
ground, informing Mother that she was not leaving until they
"talked." Consequently, Mother ran to a
neighbor's home and contacted law enforcement.
recounted the incident differently. According to Father,
despite Mother's agreeing to talk, she decided to go out
with friends while Father kept Ethan. During the ensuing
argument, Mother left. Father then entered his truck and
"flashed her down." When Mother informed Father
that she had been dating another man, Father instructed her
to bring Ethan back to his house, which she did. Father
stated that he reached into Mother's open car door to
grab her cellular telephone and keys, and that Mother ran
toward him. Father confirmed that he broke the cellular
telephone but stated that it was his phone that was broken,
not Mother's, because he had given Mother a cellular
telephone to use. According to Father, he cautioned Mother
not to contact law enforcement, warning her that DCS would
become involved with Ethan. While Father instructed Mother to
take Ethan and leave, she ran to the neighbor's home and
called law enforcement. Father acknowledged that he was
Mother testified regarding a later incident in July 2014 when
Father pinned her against her vehicle so that she could not
move. Mother reported that she "laid on the horn"
to get the children's paternal grandfather's
attention inside the home. She eventually punched or kicked
Father and was able to escape. She, however, did not report
this incident to law enforcement. Mother testified that she
"led [Father] on to believe that [they] were still
together" because she was afraid of him.
articulated that she separated from Father a few times and
returned during their relationship because she did not wish
to leave Brooke, Haley, and Jacob alone with Father. She
explained that she feared for Haley's safety if left
alone with Father. Mother indicated that Father taught the
Child to call her "a b****" and curse at her.
Mother also testified regarding an incident when Father
washed Haley's and Brooke's hair in kerosene because
of lice. He ultimately shaved the girls' heads. Father
admitted that he used kerosene as a lice treatment but denied
pouring kerosene over their heads. Father explained that the
kerosene was in a towel that he placed on their heads.
testified during trial regarding the physical abuse she and
her siblings, Jacob and Haley, had experienced. Brooke
witnessed Father pushing Haley and Jacob against a wall and
hitting each of them with an open hand. She also observed
Father pushing Haley to the floor, leaning over her, yelling,
and holding her against the wall by her throat. Brooke
reported that she had several welts on her body resulting
from Father spanking her with a belt. According to Brooke,
Father "stomp[ed]" on both her and Haley. Brooke
also testified that Father choked her often, at times causing
her to "pass out." Brooke indicated that she
observed Father choking Haley and Jacob. In response, Father
denied ever choking or stomping the children.
related that Father had locked Haley out of the home on two
occasions. Father confirmed in his testimony that although he
had locked Haley out of the home because she had threatened
to run away, Haley could have knocked to gain entrance, which
she never did. Mother also testified that Father once locked
Haley in her bedroom closet as a form of discipline, leaving
her alone in the home. Mother stated that she had observed
Father hitting Haley and Jacob with an open hand but never
with objects. She also witnessed Father pushing Haley and
Jacob against a wall on separate occasions. According to
Mother, Father became angry with Haley once, grabbing Haley
by the throat. Mother described another incident when Father
had knocked Haley to the floor, pinned her down, and leaned
over while yelling at her. She stated that Father did not
touch Haley during this incident. Mother indicated that she
did not observe Father stomping the children. According to
Father, he had spanked the children and had previously
grabbed Jacob and placed him against a wall by his shirt.
Although Father acknowledged that the children may have
fallen to the ground when he whipped them, he denied stomping
continued to relate that Father once disciplined Haley and
her by driving them to a gas station and leaving them there.
According to Brooke, although Father eventually returned and
picked them up, he left them there long enough to cause them
worry. While Father acknowledged that he transported Haley
and Brooke to a gas station, he insisted that he only drove
around the building, never leaving the children alone at the
also testified at trial regarding sexual abuse perpetrated
against her by Father. She related that Father got into the
shower with her to wash lice from her hair while both of them
were naked. According to Brooke, Father stood behind her in
the shower. When she tried to pull away from Father, Father
attempted to draw her against him. Brooke indicated feeling
uncomfortable while in the shower with Father. She stated
that Mother was also present. In response, Father denied ever
being in the shower with Brooke and added that "she was
old enough to wash her own hair." Mother also denied
that Father ever entered the shower with Brooke, stating that
she was present in the bathroom the entire time during the
described another incident when Father picked her up from
school early and took her home when no one else was present.
According to Brooke, Father played a pornographic video in
her presence and removed his pants. Father directed her to
put a condom on him, which she did. Brooke reported that
after Father instructed her to go into the bedroom and remove
her clothing, he entered the room. Brooke explained that when
Father told her to get on the bed and attempted to have sex
with her, his private parts touched her private parts. Brooke
reported that when she voiced her refusal, Father told her
"that it was normal, that that's what parents and
kids do." According to Brooke, although she had
previously feared Father, by the time of trial she no longer
did because he was incarcerated and she was now in a safe
denied ever inappropriately touching any of the children.
According to Father, Brooke was motivated to voice complaints
against him because he maintained a strict home environment.
Conversely, Father stated that Brooke desired living with her
mother, Latisha H., where she was provided whatever she
wanted. Father also suggested that Latisha H. had coerced
Brooke into making sexual allegations against Father because
Latisha H. purportedly owed a child support arrearage to
Father of approximately $46, 000.
case managers, Alexandra Timberlake and Rebecca Monsue,
testified during trial. Neither of them were involved with
the case prior to 2014. Ms. Timberlake had been the case
manager from some time in 2014 until March 2015. According to
Ms. Timberlake, she was unable to contact Father except
through his attorney. DCS had previously been relieved of
making reasonable efforts to reunify Father with the Child
when she was assigned to the case. Ms. Timberlake opined that
she would be concerned for the Child if he were to return to
Father's home. The current case manager, Ms. Monsue,
having been assigned the case in March 2015, explained that
the Child had not seen Father in five years. According to Ms.
Monsue, inasmuch as the Child was thriving in his foster
home, it would be detrimental for him to be removed.
Dr. Pestrak had testified during the adjudicatory hearing on
October 29, 2012, he was deceased by the time of the
termination trial. Accordingly, the trial court permitted a
transcript of Dr. Pestrak's prior testimony to be
admitted into evidence in the instant case. Dr. Pestrak had
evaluated Father after his children were removed from
Father's care and had recommended that Father complete
mental health counseling or treatment and therapy to address
his anger issues. However, Dr. Pestrak had opined that Father
was a poor candidate for therapy because Father did not
believe he needed counseling.
Child's foster parent, Darryl H. ("Foster
Father"), testified that the Child had been residing in
his and his wife's home for approximately four years and
four months since first being placed into DCS custody.
According to Foster Father, although the Child was
rambunctious and disrespectful to the foster family when he
initially came into their home, the Child's behaviors had
improved. Foster Father indicated that the Child had been in
therapy the entire time he had resided with them and that the
therapy had helped the Child. Foster Father opined that the
Child was doing well in his home, and he expressed a desire
to adopt the Child if the Child were to become available for
the October 24, 2016 trial, the trial court granted the
termination of Father's parental rights on the statutory
grounds that (1) Father had abandoned the Child by engaging
in conduct that exhibited a wanton disregard for the Child,
(2) Father had committed severe child abuse against a
half-sibling of the Child (Brooke), and (3) the conditions
that led to the removal of the Child from Father's
custody still persisted. The trial court found insufficient
evidence to prove that Father abandoned the Child by failing
to provide a suitable home upon finding a lack of reasonable
efforts by DCS during the four months following removal. Upon
analyzing the statutory factors, the trial court determined
that it was in the best interest of the Child to terminate
Father's parental rights. The trial court also found that
grounds for termination existed against Mother but that
termination of her parental rights was not in the best
interest of the Child. Consequently, the trial court
terminated Father's parental rights to the Child but did
not terminate Mother's parental rights. Father timely
presents three issues for our review, which we have restated
Whether the trial court erred by relying on findings of fact
and conclusions of law contained in the dependency and
neglect adjudicatory hearing order when an appeal thereof was
Whether the trial court erred by terminating Father's
parental rights to the Child while not terminating
Mother's parental rights to the Child.
Whether the trial court erred by finding that DCS had met its
burden of proof to demonstrate grounds, warranting
termination of Father's parental rights.
Standard of Review
termination of parental rights case, this Court has a duty to
determine "whether the trial court's findings, made
under a clear and convincing standard, are supported by a
preponderance of the evidence." In re F.R.R.,
III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial
court's findings of fact are reviewed de novo
upon the record, accompanied by a presumption of correctness
unless the evidence preponderates against those findings.
Tenn. R. App. P. 13(d); see In re Carrington H., 483
S.W.3d 507, 524 (Tenn. 2016); In re F.R.R., III, 193
S.W.3d at 530. Questions of law, however, are reviewed de
novo with no presumption of correctness. See In re
Carrington H., 483 S.W.3d at 524 (citing In re
M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial
court's determinations regarding witness credibility are
entitled to great weight on appeal and shall not be disturbed
absent clear and convincing evidence to the contrary. See
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
have a fundamental constitutional interest in the care and
custody of their children under both the United States and
Tennessee constitutions." Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established,
however, that "this right is not absolute and parental
rights may be terminated if there is clear and convincing
evidence justifying such termination under the applicable
statute." In re Drinnon, 776 S.W.2d 96, 97
(Tenn. Ct. App. 1988) (citing Santosky v. Kramer,
455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). As our
Supreme Court has recently explained:
The parental rights at stake are "far more precious than
any property right." Santosky, 455 U.S. at
758-59. Termination of parental rights has the legal effect
of reducing the parent to the role of a complete stranger and
of ["]severing forever all legal rights and obligations
of the parent or guardian of the child." Tenn. Code Ann.
§ 36-1-113(1)(1); see also Santosky, 455 U.S.
at 759 (recognizing that a decison terminating parental
rights is "final and irrevocable"). In
light of the interests and consequences at stake, parents are
constitutionally entitled to "fundamentally fair
procedures" in termination proceedings.
Santosky, 455 U.S. at 754; see also Lassiter v.
Dep't of Soc. Servs. of Durham Cnty, N.C. , 452 U.S.
18, 27 (1981) (discussing the due process right of parents to
fundamentally fair procedures).
Among the constitutionally mandated "fundamentally fair
procedures" is a heightened standard of proof-clear and
convincing evidence. Santosky, 455 U.S. at 769. This
standard minimizes the risk of unnecessary or erroneous
governmental interference with fundamental parental rights.
Id.; In re Bernard T., 319 S.W.3d 586, 596
(Tenn. 2010). "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 at 596 (citations
omitted). The clear-and-convincing-evidence standard ensures
that the facts are established as highly probable, rather
than as simply more probable than not. In re Audrey
S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
* * *
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. In re
Bernard T., 319 S.W.3d at 596-97.
In re Carrington H., 483 S.W.3d at 522-24.
"[P]ersons seeking to terminate [parental] rights must
prove all the elements of their case by clear and convincing
evidence, " including statutory grounds and the best
interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).
contends that the trial court erred by relying on its
previous adjudicatory hearing order from a separate and
distinct matter. According to Father, DCS may not rely on
prior court orders from a separate action in a termination
trial. It is well settled that a trial court may rely on a
prior court order finding severe abuse and is not required to
re-litigate the issue of severe abuse at the termination
trial. See State, Dep't of Children's Servs. v.
M.S., No. M2003-01670-COA-R3-CV, 2005 WL 549141, at *10
(Tenn. Ct. App. Mar. 8, 2005). However, because the trial
court may not rely on a court order that is not final for
purposes of res judicata, such an order may not be
afforded preclusive effect. See Creech v. Addington,
281 S.W.3d 363, 377-78 (Tenn. 2009); In re Shyronne
D.H., No. W2011-00328-COA-R3-PT, 2011 WL 2651097, at *5
(Tenn. Ct. App. July 7, 2011). As this Court has explained:
Importantly, both res judicata and collateral
estoppel require a final judgment from which to take their
preclusive effect. State v. Thompson, 285 S.W.3d
[840, ] 847 [(Tenn. 2009)]; Richardson v. Tennessee Bd.
of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995).
* * *
[A] judgment may be considered "final" in order to
confer jurisdiction on an appellate court pursuant to
Tennessee Rules of Appellate Procedure Rule 3(a), while not
being "final" for purposes of res judicata
because such an appeal is pending.
This is, in fact, the rule in Tennessee, where a "'a
judgment is not final and res judicata where an
appeal is pending.'" Creech, 281 S.W.3d
377-78 (quoting McBurney [v. Aldrich], 816
S.W.2d [30, ] 34 [(Tenn. Ct. App. 1991)]); see also
Freeman v. Marco Transp. Co., 27 S.W.3d 909, 913 (Tenn.
2000). Our Supreme Court, citing the Restatement (Second) of
Judgments § 13 cmt. f, has noted that Tennessee's
rule is a minority position and that the predominant view in
other jurisdictions is that the "taking of an appeal
does not affect the finality of a judgment for res
judicata purposes." Creech, 281 S.W.3d at
378 n.17 (collecting cases from other jurisdictions).
However, it is an inescapable conclusion that, in Tennessee,
a judgment from a case in which an appeal is pending is not
final and cannot be res judicata until all appellate
remedies have been exhausted.
In re Shyronne D.H., 2011 WL 2651097, at *5-6
Court addressed a similar situation in the case of In re
Adriana L., No. M2013-00646-COA-R3-PT, 2013 WL 5434629,
at *3 (Tenn. Ct. App. Sept. 25, 2013), determining as
Mother asserts that the trial court erred in admitting two
prior orders that adjudicated the children dependent and
neglected and found the children were subjected to severe
abuse as exhibits at trial. Mother states that she filed an
appeal from those orders which was still pending at the time
of the termination hearing. She argues that because the
orders were being appealed, they were not final and should
not have been admitted or relied on by the trial court.
Mother also asserts that the trial court erred in using
"the findings and conclusions from those trials instead
of making findings based upon the evidence presented at the
termination of parental rights trial."
Mother cites In re Shyronne D.H. in support of her
contentions. In re Shyronne D.H., No.
W2011-00328-COA-R3-PT, 2011 WL 2651097 (Tenn. Ct. App. July
7, 2011). In In re Shyronne D.H., the trial court
held that a previous finding of severe child abuse from a
dependency and neglect proceeding was res judicata and
excluded all evidence and argument on the issue of severe
abuse at the termination of parental rights hearing.
Id. at *9. Mother appealed, and this Court
determined that the prior order the trial court relied on was
not yet a final judgment and that the trial court erred by
precluding Mother from asserting her defense. Id. at
* 10. In re Shyronne D.H. is distinguishable from
the instant case. Here, the trial court heard testimony from
eight witnesses regarding the parties' alleged child
abuse and made independent findings that the conduct of the
parties constituted severe child abuse. The trial court
recognized it could not solely rely on the prior order and
did not apply the doctrine of res judicata, nor did it
preclude Mother from presenting evidence on the issue of
severe abuse. Furthermore, we have carefully reviewed the
testimony and exhibits presented at trial and find that the
trial court did not adopt the findings of fact and
conclusions of law in the prior orders wholesale; rather, the
court allowed the parties to fully litigate the issues and
made independent findings based on the evidence presented.
The introduction of the prior orders is not reversible error.
In re Adriana L., 2013 WL 5434629, at *3 (footnotes
matter, the trial court admitted as an exhibit the previous
adjudicatory hearing order wherein the court found that the
Child was dependent and neglected and that Father had
committed severe abuse against two of the other children.
Following the testimony of several witnesses, the trial court
entered its order terminating Father's parental rights to
the Child. The trial court included in its decision portions
of evidence from the previous adjudicatory hearing order
presented in the prior trial, including testimony from Jacob
and Haley, who did not testify during the termination trial.
We determine that the trial court erred insofar as the court
relied on the evidence in the adjudicatory hearing order that
was not presented at the termination trial. See In re
Adriana L., 2013 WL 5434629, at *3.
error was harmless, however, because the trial court did not
apply res judicata or afford the findings in the
adjudicatory hearing order preclusive effect. The parties
were given the opportunity to re-litigate these issues during
the termination trial. In its order, the trial court provided
a summary of the evidence presented in the termination trial
upon which it had relied in making its decision regarding
termination of parental rights. The trial court further
stated regarding the severe child abuse finding: "While
the Adjudicatory Order was appealed to Circuit Court, this
appeal is still pending and this court further finds that the
proof introduced herein is sufficient, independent of the
Adjudicatory Order, to sustain such finding."
the trial court erred by relying on testimony supporting the
adjudicatory hearing order that was not presented during the
termination trial, we determine this error to be harmless
because the trial court did not apply preclusive effect to
the adjudicatory hearing order. Instead, the parties were
permitted to re-litigate the issues while the trial court
conducted its own independent analysis of the evidence
presented in this action. Furthermore, the clear and
convincing evidence presented to the trial court in the
termination trial supports the trial court's ultimate
findings concerning the ...