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In re Addison E.

Court of Appeals of Tennessee, Nashville

January 17, 2018

In re ADDISON E. et al.

          Assigned on Briefs September 1, 2017

         Appeal from the Juvenile Court for Overton County No. 16-JV-41 Daryl Colson, Judge

         This is 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court

          Bruce 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.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Andy D. Bennett, J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         This 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.[1]

         DCS 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.

         Father, 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.

         The 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.

         Concerning 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 convincing evidence.

         The 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.

         II. Issues Presented

         Father presents three issues for our review, [2] 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.

         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, ...

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