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In re Ke'Andre C.

Court of Appeals of Tennessee, Nashville

January 29, 2018

IN RE: KE'ANDRE C., [1] ET AL.

          Assigned On Briefs January 3, 2018

         Direct Appeal from the Juvenile Court for Maury County No. 2017-JV-4 George L. Lovell, Judge

         This is a termination of parental rights case concerning two minor children. Mother is the biological parent of both children. Father is the biological parent of the younger child only. The trial court found by clear and convincing evidence that multiple grounds existed to terminate Mother's parental rights to both children and Father's parental rights to his child. Mother and Father appealed. We reverse the trial court's finding as to one ground for termination asserted against Mother and one ground asserted against Father, but we otherwise affirm the termination of Mother's and Father's parental rights.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in part, Affirmed in part and Remanded

          Jennifer Lenore Fiola, Columbia, Tennessee, for the appellant, Kendra C.

          Shawn David Snyder, Columbia, Tennessee, for the appellant, Anthony H.

          Herbert H. Slatery III, Attorney General and Reporter, and Michael Collins Polovich, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          Branon O. Gibson, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and Richard H. Dinkins, J.J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         The minor children at issue in this case are Makaila, born in November 2008, and Ke'Andre, born in December 2015 (collectively the "Children"). Kendra C. ("Mother") is the biological mother of both Children. Makaila's biological father is deceased. Anthony H. ("Father") is the biological father of Ke'Andre. Accordingly, the petition at hand relates to the termination of Mother's parental rights to both Children and to Father's parental rights to Ke'Andre only.

         Mother has an extensive history of drug abuse and a relationship with the Department of Children's Services ("DCS") dating back nearly a decade. Her first interaction with DCS was in December 2008, which was one month after she gave birth to Makaila. At that time, Child Protective Services received information that Makaila was exposed to environmental neglect and drugs. Over the next few years, DCS was required to intervene on Makaila's behalf on multiple occasions. DCS eventually filed another dependency and neglect petition in 2014 when it learned that Mother, who was incarcerated, left Makaila in the care of a relative (with a known history of drug abuse) who had overdosed. In 2015, DCS filed another petition. Mother was pregnant with Ke'Andre by this time and tested positive for benzodiazepines, marijuana, opiates, and oxycodone. She failed additional drug tests in the months following Ke'Andre's birth. These positive drug tests also served as a basis for Mother to violate her probation, and she was incarcerated again in April 2016 and remained incarcerated throughout the termination proceedings. Both Children were immediately placed in DCS custody and have been together in the same foster home since that time.

         Father, the biological parent of Ke'Andre, has his own lengthy track record with the criminal justice system. Although Father testified that he and Mother were not in a monogamous relationship when Ke'Andre was conceived, Father was present for the birth of the child because he believed there was a 50/50 chance the child was his. During the pendency of the termination proceedings, Father wrote a letter to a DCS representative stating: "I was there when Ke'Andre was born and I want to continue to be there." Father's paternity was eventually established by DNA testing on June 21, 2016. Throughout Mother's pregnancy and Ke'Andre's life, Father has been incarcerated for violations of probation, tested positive for illegal drugs, and has established no relationship whatsoever with the child.

         On April 20, 2016, DCS filed the current petition to terminate parental rights against Mother and Father. As grounds for termination, DCS alleged that Mother's conduct constituted the following grounds for termination of her parental rights: (1) abandonment by an incarcerated parent, (2) abandonment for failure to provide a suitable home, (3) substantial noncompliance with the permanency plan, and (4) failure to assume legal and physical custody. Regarding Ke'Andre, DCS alleged that Father's rights should be terminated due to (1) abandonment by an incarcerated parent, (2) substantial noncompliance with the permanency plan, and (3) failure to assume legal and physical custody. The trial was held on May 24, 2017. The court heard testimony from Mother, Father, the DCS representative, and the court appointed special advocate for the Children, as well as arguments of counsel for all parties. Twenty-eight exhibits were entered into evidence. At the conclusion of the trial, the court determined that DCS had proven all grounds alleged against Mother and Father, and that terminating their parental rights was in the best interest of the Children. A written order terminating parental rights was subsequently entered by the court on June 20, 2017.

         II. Issues Presented

Mother presents the following issues, as slightly reworded, for review:
1. Whether the trial court erred in finding that the Department of Children's Services made a reasonable effort to provide services to Mother to substantially comply with the permanency plan?
2. Whether the trial court erred in determining that termination of Mother's parental rights is in the best interest of the children?
Father presents the following issues, as slightly reworded, for review:
3. Whether the trial court erred in determining that Father abandoned his child, pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(iv), by engaging in conduct that exhibited a wanton disregard for the health, safety, and welfare of the child?
4. Whether the trial court erred in determining that termination of Father's parental rights is in the best interest of the child?

         III. Standard of Review

         "In Tennessee, proceedings to terminate a parent's parental rights are governed by statute." In re Kaliyah S., 455 S.W.3d 533, 541 (Tenn. 2015). Tennessee Code Annotated section 36-1-113 sets forth the grounds and procedures for terminating the parental rights of a biological parent. Id. at 546. Pursuant to the statute, parties who have standing to seek termination of a biological parent's parental rights must prove two elements. Id. at 552. First, they must prove the existence of at least one of the statutory grounds for termination listed in Tennessee Code Annotated section 36-1-113. Id. Second, the petitioner must prove that terminating parental rights is in the child's best interest, considering, among other things, the factors listed in Tennessee Code Annotated section 36-1-113(i). Id. In light of the constitutional dimension of the rights at stake in a termination proceeding, the persons seeking to terminate parental rights must prove both of these elements by clear and convincing evidence. In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)). "Clear and convincing evidence" has been defined as "evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (citing In re Valentine, 79 S.W.3d at 546). It produces a firm belief or conviction in the fact-finder's mind regarding the truth of the facts sought to be established. In re Bernard T., 319 S.W.3d at 596.

         In sum, in order to terminate parental rights, a trial court must determine by clear and convincing evidence not only the existence of at least one of the statutory grounds for termination but also that termination is in the child's best interest. In re Adoption of Angela E., 402 S.W.3d at 639. Because of this heightened burden of proof in parental termination cases, on appeal we must adapt our customary standard of review as set forth in Tennessee Rule of Appellate Procedure 13(d). In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). First, we review each of the trial court's specific factual findings de novo in accordance with Rule 13(d), presuming the finding to be correct unless the evidence preponderates against it. In re Adoption of Angela E., 402 S.W.3d at 639. Second, we must make our 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 Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016) (citing In re Bernard T., 319 S.W.3d at 596-97)). "The trial court's ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness." Id. (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)).

         IV. Discussion

         The trial court relied on the following statutory grounds to terminate Mother's parental rights: (1) abandonment by an incarcerated parent, (2) abandonment for failure to provide a suitable home, (3) substantial noncompliance with the permanency plan, (4) failure to assume legal and physical custody. The trial court relied on the same statutory grounds to terminate Father's rights with the exception of failure to provide a suitable home. Mother and Father do not attempt to defend against each ground for termination of their parental rights found by the trial court. Mother's sole issue raised on appeal related to grounds for termination concerns the efforts made by DCS to enable her to comply with her permanency plan, and Father's sole issue related to grounds is whether he exhibited a wanton disregard for the welfare of his child. Although only one ground must be proven by clear and convincing evidence in order to terminate parental rights, due to the of the fundamental nature of the parental rights at stake in termination cases, the Tennessee Supreme Court has instructed that "in an appeal from an order terminating parental rights the Court of Appeals must review the trial court's findings as to each ground for termination and as to whether termination is in the child's best interests, regardless of whether the parent challenges these findings on appeal." In re Carrington H., 483 S.W.3d at 525-26. We will, therefore, review each ground for termination relied upon by the trial court.

         A. Grounds for Termination

         1. Abandonment by an Incarcerated Parent - Mother

         The trial court found that Mother engaged in conduct that constitutes abandonment of the Children by an incarcerated parent pursuant to Tennessee Code Annotated sections 36-1-113(g)(1) and 36-1-102(1)(A)(iv).

For purposes of terminating the parental or guardian rights of a parent or parents . . . "abandonment" means that:
(iv) A parent or guardian 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 or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either had willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's incarceration, or the parent or guardian has engaged in conduct prior to incarceration which exhibits a wanton disregard for the welfare of the child.

Tenn. Code Ann. § 36-1-102(1)(A)(iv). The trial court found that Mother had been in jail for part or all of the four (4) months preceding the filing of those proceedings based on the following evidence introduced at trial:

(a) [Mother] had been convicted of False Report and Conspiracy to False Report by the Circuit Criminal Court for ...

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