In re ADDISON E. et al.
Assigned on Briefs September 1, 2017
from the Juvenile Court for Overton County No. 16-JV-41 Daryl
a termination of parental rights action involving two minor
children. In June 2015, temporary custody of the children was
granted to the Tennessee Department of Children's
Services ("DCS"), and the children were placed in
foster care. DCS subsequently filed a petition to terminate
the parental rights of the father on May 12, 2016, following
the mother's surrender of her parental rights. The trial
court conducted a bench trial on January 18, 2017. On
February 1, 2017, the court entered an order granting the
petition upon finding that DCS had proven by clear and
convincing evidence the ground of abandonment by the
father's engagement in conduct exhibiting a wanton
disregard for the welfare of the children prior to his
incarceration. The court also found clear and convincing
evidence that termination of the father's parental rights
was in the children's best interest. The father has
appealed. Discerning no error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
E. Myers, Livingston, Tennessee, for the appellant, Kerry E.
Herbert H. Slatery, III, Attorney General and Reporter;
Ellison M. Berryhill, Assistant Attorney General; 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 Andy D. Bennett, J., and J. Steven Stafford, P.J.,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
termination of parental rights action involves two children,
Addison E. and Ava E. ("the Children"), who were
born in 2009 and 2013, respectively, during the marriage of
Kerry E. ("Father") and Christina E.
("Mother"). Upon a finding of dependency and
neglect, the Overton County Juvenile Court ("trial
court") placed the Children in DCS custody on June 15,
2015. Mother surrendered her parental rights to the Children
on February 17, 2016. Therefore, the appeal before us
involves solely the termination of Father's parental
rights to the Children.
filed a termination petition in the trial court on May 12,
2016, seeking to terminate Father's parental rights to
the Children. In the petition, DCS averred that Father was
incarcerated at that time. DCS alleged as statutory grounds
for termination that (1) Father had abandoned the Children by
failing to provide a suitable home for them and (2) Father
had abandoned the Children by engaging in conduct exhibiting
a wanton disregard for the welfare of the Children prior to
Father's incarceration. DCS further alleged that
termination of Father's parental rights was in the best
interest of the Children.
proceeding self-represented, filed a response in opposition
to the termination petition on September 14, 2016. In his
response, Father asserted that he was released on parole in
2015 and attempted to arrange to communicate or visit with
the Children. Father maintained that he was prohibited from
doing so while he was on parole due to "overbroad"
stipulations of his parole supervision. Father sought a
continuance of the termination hearing date until after his
scheduled release from incarceration in November 2016 so that
he could attend the hearing.
trial court conducted a termination hearing on January 18,
2017. Although Father remained incarcerated at the time of
the hearing, he participated via teleconference. Upon
commencement of the hearing, counsel for DCS acknowledged
that DCS was proceeding solely on the statutory ground of
abandonment through wanton disregard. The trial court
considered testimony from several witnesses, including
Father. The court thereafter entered an order terminating
Father's parental rights to the Children on February 1,
2017. In its order, the court found that DCS had proven by
clear and convincing evidence the ground of abandonment
through conduct exhibiting wanton disregard for the
Children's welfare. With regard to the evidence
presented, the court determined that the witnesses for DCS
were credible but that Father was not. The court noted that
Father had been incarcerated in Indiana since September 2012,
having been convicted of sexual misconduct with a minor and
sentenced to six years' imprisonment.
the statutory ground alleged, the trial court found that
Father's conduct in 2012 and 2013 leading to his
conviction and incarceration, as well as his failure to
comply with the conditions of his recent parole, exhibited a
wanton disregard for the welfare of the Children. The court
also noted that upon his release from jail on parole, Father
chose to use illegal drugs and was thereafter reincarcerated.
Consequently, the court determined that the ground of
abandonment by conduct exhibiting wanton disregard for the
Children's welfare had been proven by clear and
trial court further found clear and convincing evidence that
termination of Father's parental rights was in the best
interest of the Children. The court specifically stated that
Father had not made an adjustment of circumstances, conduct,
or conditions as to make it safe and in the Children's
best interest to be in his home. The court determined that
Father had failed to effect a lasting adjustment after
reasonable efforts by available social services agencies for
such a duration of time that lasting adjustment did not
reasonably appear possible. The court also determined that
Father had not maintained regular contact or visitation with
and had no meaningful relationship with the Children. Based
on the evidence presented, the court found that a change of
caretakers would likely have a negative effect on the
Children, who needed permanency and removal of the
"stigma" of being foster children. The court
observed that the Children were doing well in school and that
they considered the foster parents to be their parents.
Moreover, the court noted that Father had not paid child
support consistent with the respective guidelines and had
shown little or no interest in the Children. The court
therefore terminated Father's parental rights. Proceeding
through counsel, Father filed a timely notice of appeal,
which bore only the signature of his attorney.
presents three issues for our review,  which we have
restated as follows:
1. Whether Tennessee Code Annotated § 36-1-124(d)
requires the signature of the appellant.
2. Whether the trial court erred by finding that DCS had
proven, by clear and convincing evidence, the statutory
ground of abandonment by demonstrating that Father had
engaged in conduct exhibiting a wanton disregard for the
welfare of the Children prior to Father's incarceration.
3. Whether the trial court erred by determining that
termination of Father's parental rights was in the
Children's best interest.
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, ...