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In re Hannah C.

Court of Appeals of Tennessee, Nashville

January 24, 2018

IN RE HANNAH C.

          October 3, 2017 Session

         Appeal from the Circuit Court for Montgomery County No. MCCCCVSA14-1256 William R. Goodman, III, Judge

         This is 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the trial court is Reversed in Part; Affirmed in Part, and Remanded.

          B. Nathan Hunt, Clarksville, Tennessee, for the appellant, Hector N.

          Sharon T. Massey, Clarksville, Tennessee, for the appellees, Natasha S. and Jason S.

          Kenny Armstrong, J., delivered the opinion of the court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Background

         This case concerns the minor child, Hannah C. (d.o.b. December 2009) ("the Child").[1] 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.

         In 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.

         On June 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.

         On 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.

         The 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.[2]

         II. Issues

         1. Whether the trial court erred in concluding that any grounds for termination of parental rights had been established by clear and convincing evidence.

         2. 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.

         Appellee 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.

         III. Standard of Review

         "A 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.

         In 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).

         The 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)).

         In 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)).

         IV. Analysis

         A. The Sufficiency of the Record on Appeal

         When 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, at *4.

         Here, 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.

         B. Grounds for Termination of Parental Rights

         Although 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 foregoing grounds.

         1. Abandonment

         Tennessee 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 another ground:
(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 36-1-102(1)(A)(iv)).

         Tennessee 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:
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(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 ...

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