October 3, 2017 Session
from the Circuit Court for Montgomery County No.
MCCCCVSA14-1256 William R. Goodman, III, Judge
a termination of parental rights case. The trial court
terminated Appellant's parental rights to the minor child
on the grounds of: (1) abandonment by willful failure to
support or visit; (2) abandonment by an incarcerated parent
by wanton disregard; and (3) on grounds codified at Tennessee
Code Annotated Section 36-1-113(g)(9)(A) et seq.
Because Appellees did not meet their burden to show that
Father willfully failed to support or visit the child, and
because Appellees did not meet their burden to show that
Father had the financial means to pay for his reasonable
share of prenatal and postnatal support, we reverse the trial
court's findings as to these grounds. We affirm as to the
other grounds found by the trial court. We also affirm the
trial court's finding that termination of Appellant's
parental rights is in the best interest of the minor child.
R. App. P. 3 Appeal as of Right; Judgment of the trial court
is Reversed in Part; Affirmed in Part, and Remanded.
Nathan Hunt, Clarksville, Tennessee, for the appellant,
T. Massey, Clarksville, Tennessee, for the appellees, Natasha
S. and Jason S.
Armstrong, J., delivered the opinion of the court, in which
Richard H. Dinkins and W. Neal McBrayer, JJ., joined.
case concerns the minor child, Hannah C. (d.o.b. December
2009) ("the Child"). Although he is not listed on the
birth certificate, Hector N. ("Appellant, " or
"Father") is the Child's alleged biological
father. At age 21, Father raped the Child's mother,
Ashley M. ("Mother"), who was only 13 at the time.
On March 4, 2010, Appellant was convicted of two counts of
statutory rape, one against Mother and one against another 14
year-old girl. He received two years' probation for the
statutory rape convictions. Subsequent to his statutory rape
convictions and placement on probation, he continued to have
communication with Mother, including sending her sexually
explicit photos. As a result, Appellant was convicted of
Especially Aggravated Exploitation of a Minor in April of
2011 and was sentenced to 8 years' imprisonment. He was
released in 2016 after serving 6 years of his sentence.
January of 2014, Mother and the Child moved into the home of
Jason and Natasha S. (together "Appellees"). Mother
had been diagnosed with stage-4 ovarian cancer and could no
longer care for the Child. Mother died in October of 2014.
20, 2014, Appellees and Mother filed a joint Petition for
Adoption and Termination of Parental Rights and listed, as a
Respondent, the Child's "Unknown Biological
Father." On September 12, 2014, the Child's maternal
grandmother filed an Intervening Petition for Custody of the
Child. In her petition, grandmother alleged that Appellant
was the biological father of the Child. On September 16,
2014, Appellees filed an Amended Petition for Adoption and
Termination and specifically named Appellant as the
Child's alleged birth father. Appellees sought
termination of Father's parental rights on the grounds
of: (1) abandonment by willful failure to visit or support;
and (2) pursuant to the grounds listed under Tennessee Code
Annotated Section 36-1-113(g)(9)(A). On the same day, Mother
filed an Affidavit, wherein she stated that Appellant was the
Child's father. Mother's deposition was taken in
September of 2014, and she testified that Appellant was the
Child's father by virtue of the statutory rape.
September 29, 2014, Appellant filed a Notice of Intent to
Claim Paternity with the Tennessee Department of
Children's Services. On December 11, 2014, all visitation
issues relating to the maternal grandmother were resolved by
Agreed Order between Appellees and grandmother.
trial court heard the petition to terminate Father's
parental rights and for adoption on September 14, 2016. On
September 16, 2016, the trial court terminated
Appellant's parental rights, approved the adoption, and
entered a Final Decree of Adoption. Specifically, the trial
court terminated Appellant's parental rights on three
grounds: (1) abandonment by willful failure to support or
visit; (2) abandonment by an incarcerated parent by wanton
disregard; and (3) on grounds codified at Tennessee Code
Annotated Section 36-1-113(g)(9)(A), et seq. The
trial court also found that termination of Father's
parental rights was in the Child's best interest. On
September 27, 2016, the trial court entered its Findings of
Fact and Conclusions of Law. Appellant filed his Notice of
Appeal on October 4, 2016.
Whether the trial court erred in concluding that any grounds
for termination of parental rights had been established by
clear and convincing evidence.
Whether clear and convincing evidence supports the trial
court's determination that termination of Appellant's
parental rights is in the Child's best interest.
raises the additional issue of whether this Court has
subject-matter jurisdiction to hear the appeal because Father
did not personally sign the Notice of Appeal. In its recent
decision, In re Bentley D., No.
E1016-02299-SC-RDO-PT, 2017 WL 5623577 (Tenn. Nov. 22, 2017),
the Tennessee Supreme Court held that the signature
requirement contained in Tennessee Code Annotated Section
36-1-124(d), requiring the appellant to sign the notice of
appeal, was satisfied by the appellant's attorney's
signature on the notice of appeal. Here, appellant did not
sign the notice of appeal; however, his attorney did. As
such, under the holding in In re Bentley D., this
Court has jurisdiction to adjudicate the appeal on its
merits, and this issue is rendered moot.
Standard of Review
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
H., 483 S.W.3d 507, 522 (Tenn. 2016). 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 H., 483 S.W.3d at 522.
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 H., 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 H.,
483 S.W.3d at 522. Such evidence "produces in a
fact-finder's mind a firm belief or conviction regarding
the truth of the facts sought to be established." In
re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004).
heightened burden of proof applies to both the initial
determination of whether statutory grounds for termination
have been established and whether termination is in the best
interest of the child. Id. First, the petitioner
must establish, by clear-and convincing evidence, at least
one of the statutory grounds for termination of the
parent's rights. See Tenn. Code Ann. §
36-1-113(c)(1); In re Angela E., 303 S.W.3d 240, 251
(Tenn. 2010). Second, the petitioner must prove, by
clear-and-convincing evidence, that termination of the
parent's rights is in the child's best interest.
Tenn. Code Ann. § 36-1-113(c)(2); In re Carrington
H., 483 S.W.3d at 523 ("The best interests analysis
is separate from and subsequent to the determination that
there is clear-and-convincing evidence of grounds for
termination.") "These requirements ensure that each
parent receives the constitutionally required
'individualized determination that a parent is either
unfit or will cause substantial harm to his or her child
before the fundamental right to the care and custody of the
child can be taken away.'" See In re Carrington
H., 483 S.W.3d at 523 (quoting In re Swanson, 2
S.W.3d 180, 188 (Tenn. 1999)).
light of the heightened standard of proof, an appellate court
must modify the customary standard of review mandated by
Tennessee Rule of Appellate Procedure 13(d) when reviewing a
trial court's findings in termination proceedings.
Id. at 523; In re Angela E., 303 S.W.3d at
246. First, we review the trial court's specific factual
findings de novo upon the record with a presumption
of correctness. Tenn. R. App. P. 13(d); In re Taylor
B.W., 397 S.W.3d 105, 112 (Tenn. 2013). We will not
disturb the trial court's findings unless the evidence in
the record preponderates otherwise. Tenn. R. App. P. 13(d).
However, in termination proceedings, a reviewing court must
then make its own determination as to whether
clear-and-convincing evidence supports termination. In re
Taylor B.W., 397 S.W.3d at 112. Whether the facts are
sufficient to support termination of parental rights is a
conclusion of law, which this Court reviews de novo
with no presumption of correctness. In re Adoption of
A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007) (citing In
re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002)).
The Sufficiency of the Record on Appeal
there is no transcript for us to review on appeal, it is
necessary that we address the sufficiency of the record
presented so we may determine whether we are able to come to
a conclusion on the underlying issues based on the record
presented. A record of sufficient completeness is required to
permit proper appellate review of a parent's claims in
termination of parental rights proceedings. See In re Ian
B., M2015-01079-COA-R3-PT, 2016 WL 2865875 (Tenn. Ct.
App. May 11, 2016); In re Austin C., No.
M2013-02147-COA-R3-PT, 2014 WL 4261178 (Tenn. Ct. App. Aug.
27, 2014); L.D.N. v. R.B.W.,
No.E2005-02057-COA-R3-PT, 2006 WL 369275 (Tenn. Ct. App. Feb.
17, 2006); In re J.M.C.H., No.
M2002-01097-COA-R3-JV, 2002 WL 31662347 (Tenn. Ct. App. Nov.
26, 2002); In re Adoption of J.D.W., No.
M2000-00151-COA-R3-CV, 2000 WL 1156628 (Tenn. Ct. App. Aug.
16, 2000). While we always prefer having a transcript of the
underlying proceeding, it is not specifically required;
instead, a "record of sufficient completeness" is
required. See In re Adoption of J.D.W., 2000 WL
1156628, at *3 (citing M.L.B. v. S.L.J., 519 U.S.
102, 128 (1996)). Therefore, the issue here is whether the
evidentiary record before this Court, one that is mostly
based on a Statement of the Evidence and Mother's
deposition testimony, is sufficiently complete to permit this
Court to conduct the appropriate review of Appellant's
claims in order to preserve his rights to an effective
appeal. See In re Austin C., 2014 WL 4261178, at *5;
see also In re Adoption of J.D.W., 2000 WL 1156628,
the Statement of the Evidence lists every witness'
testimony. Importantly, the Statement of the Evidence details
Appellant's testimony about his statutory rape
convictions as well as his guilty plea of Especially
Aggravated Exploitation of a Minor. Additionally, the
statement describes Appellant's testimony that, prior to
filing a petition to establish paternity on July 23, 2015,
Appellant had never taken any steps to become the biological
father of the Child even after he was provided notice that he
was the father. Further, the statement indicates that
Appellant testified that he has no relationship with the
Child and that she does not know him. The Statement of the
Evidence also details the testimony of Appellees.
Specifically, the statement reflects that Appellees testified
that the Child has lived in their home since early January of
2014 and that the Child is happy and well-adjusted in their
home. The statement also describes how Appellees are
financially stable and able to care for the Child. In
addition to the Statement of the Evidence, we also have
Mother's full deposition testimony which was admitted
into evidence at the trial. This deposition includes specific
testimony about Appellant and his rape of Mother. This
testimony, along with the thorough Statement of the Evidence,
provides us with a sufficient evidentiary record to permit
appropriate review by this Court.
Grounds for Termination of Parental Rights
only one ground must be proven by clear and convincing
evidence in order to terminate a parent's rights, the
Tennessee Supreme Court has instructed this Court to review
every ground relied upon by the trial court to terminate
parental rights in order to prevent "unnecessary remands
of cases." In re Angela E., 303 S.W.3d 240, 251
n.14 (Tenn. 2010). Accordingly, we will review all of the
Code Annotated Section 36-1-113(g)(1) provides:
(g) Initiation of termination of parental or guardianship
rights may be based upon any of the grounds listed in this
subsection (g). The following grounds are cumulative and
non-exclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within
(1) Abandonment by the parent or guardian, as defined in
§ 36-1-102, has occurred;
Tenn. Code Ann. § 36-1-113(g)(1). From the record, we
glean that Father was incarcerated from mid-2010 until
September of 2016. Because Father was incarcerated at the
time the petition to terminate his parental rights was filed
on June 20, 2014, the abandonment definition at Tennessee
Code Annotated Section 36-1-102(1)(A)(iv) is applicable in
this case. See In re Navada N., 498 S.W.3d 579,
598-600 (Tenn. Ct. App. 2016) (describing incarceration
within the four months preceding the filing of the
termination petition as a "condition precedent" to
the application of the abandonment definitions under section
Code Annotated Section 36-1-102(1)(A)(iv) defines
"abandonment, " in relevant part as follows:
(1)(A) For purposes of terminating the parental or guardian
rights of a parent or parents or a guardian or guardians of a
child to that child in order to make that child available for
adoption, "abandonment" means that:
(iv) A parent . . . is incarcerated at the time of the
institution of an action or proceeding to declare a child to
be an abandoned child, or the parent . . . has been
incarcerated during all or part of the four (4) months
immediately preceding the institution of such action or
proceeding, and either has willfully failed to visit or has
willfully failed to support . . . for four (4) consecutive
months immediately preceding such parent's . . .
incarceration, or the parent ...