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In re Brooke E.

Court of Appeals of Tennessee, Nashville

December 22, 2017

In re BROOKE E. et al.

          Session August 24, 2017

         Appeal from the Juvenile Court for Stewart County No. 81JC1-2015-JT-03 Andy Brigham, Judge

         This is 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.[1] 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.

         Tenn. 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.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and W. Neal McBrayer, J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE.

         I. Factual and Procedural History

         The 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.[2] 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.

         Prior 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 time.

         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.

         According 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 order.

         The 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 petition.

         At 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.

         Mother 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."

         Mother 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.

         Father 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 subsequently arrested.

         Additionally, 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.

         Mother 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.

         Brooke 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.

         Mother 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 them.

         Brooke 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 establishment.

         Brooke 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 lice incident.

         Brooke 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 place.

         Father 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.

         Two DCS 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.

         Although 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.

         The 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 adoption.

         Following 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 appealed.

         II. Issues Presented

         Father presents three issues for our review, which we have restated as follows:

         1. 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 pending.

         2. Whether the trial court erred by terminating Father's parental rights to the Child while not terminating Mother's parental rights to the Child.

         3. 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.

         III. Standard of Review

         In a 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).

         "Parents 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).

         IV. Evidentiary Issues

         Father 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 (footnotes omitted).

         This 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 follows:

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 omitted).

         In this 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.

         Such 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."

         Although 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 ...


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