Assigned on Briefs July 3, 2017
from the Juvenile Court for Shelby County No. CC0587 Harold
W. Horne, Special Judge
a termination of parental rights case involving the parental
rights of the father, Clyde J. ("Father"), to his
minor child, Catherine J. ("the Child"). On October
27, 2015, the Shelby County Juvenile Court ("trial
court") placed the Child into the custody of the
Tennessee Department of Children's Services
("DCS"). The Child was immediately placed in foster
care, where she remained at the time of trial. Following a
hearing conducted on February 3, 2016, the trial court found
the Child to be dependent and neglected as to Father due to
improper guardianship. On August 4, 2016, DCS filed a
petition to terminate Father's parental
rights. Following a bench trial before a special
judge on January 26, 2017, the trial court found by clear and
convincing evidence that Father had abandoned the Child by
failing to visit the Child, failing to financially support
the Child, and exhibiting wanton disregard for the
Child's welfare prior to his incarceration. The trial
court also found clear and convincing evidence that
termination of Father's parental rights was in the best
interest of the Child. The trial court entered a final
judgment on February 13, 2017, terminating Father's
parental rights to the Child. Father has appealed. Discerning
no error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed; Case Remanded
Franklin, Jr., Memphis, Tennessee, for the appellant, Clyde
Herbert H. Slatery, III, Attorney General and Reporter, and
Brian A. Pierce, Assistant Attorney General, for the
appellee, Tennessee Department of Children's Services.
R. Frierson, II, J., delivered the opinion of the court, in
which Richard H. Dinkins, J., and J. Steven Stafford, P.J.,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
Child was born in July 2015 and remained hospitalized until
November 2, 2015 due to heart and thyroid medical conditions.
The trial court entered a protective custody order on October
27, 2015, ordering that the Child be placed into the care and
custody of the Tennessee Department of Children's
Services. The Child was immediately placed into foster care,
where she remained at the time of trial. The trial court
conducted a preliminary hearing on November 6, 2015, and an
adjudicatory hearing on February 3, 2016. The adjudicatory
hearing occurred before the Honorable Mitzi Pollard, a
magistrate of the Juvenile Court of Memphis and Shelby
County. Subsequently, Magistrate Pollard entered
"Findings and Recommendations of the Magistrate" on
February 3, 2016, which was filed on March 16, 2016, finding
by clear and convincing evidence that the Child was dependent
and neglected as to Father due to "improper
guardianship." On February 19, 2016, Father filed a
"Notice of Request for Hearing Before the Judge, "
which was ultimately denied when Father failed to appear
before the trial court on June 27, 2016. Additionally, the
trial court confirmed the February 3, 2016 adjudicatory
hearing order as the order of the court. Subsequently, DCS
filed a petition to terminate Father's parental rights on
August 4, 2016. The trial court conducted a bench trial on
January 26, 2017, regarding the termination petition with
Special Judge Harold W. Horne presiding.
Greer, the Child's DCS case manager since the Child
entered DCS custody, testified at trial. Ms. Greer explained
that she provided Father a copy of a document entitled,
"Criteria and Procedures for Termination of Parental
Rights, " on November 6, 2015, while she and Father were
present at court for the preliminary hearing in the
dependency and neglect action. According to Ms. Greer, after
Father read through the document at her request, she
presented Father with the option of speaking with his
attorney prior to signing the document. Ms. Greer indicated
that she explained the contents of the document to Father,
which included a definition of and description of the legal
consequences of abandonment. Ms. Greer also related that
Father had informed her at that time that he had no questions
regarding the document and signed it.
testified and the trial court found that he was arrested on
May 17, 2016. Father's criminal record reflects that
Father was incarcerated beginning on July 5, 2016. Father
pled guilty to a charge of aggravated burglary on September
14, 2016, and was sentenced to three years of incarceration.
Although Father remained incarcerated at the time of trial,
he had been granted parole and was scheduled to be released
in March 2017. According to Ms. Greer, she had limited
contact with Father throughout her involvement as case
manager but had experienced more contact with Father after he
Greer testified that the Child had been exposed to multiple
drugs at the time of her birth and manifested ongoing special
needs. The Child presented a heart condition at birth, which
required open-heart surgery, and the Child had a thyroid
condition. Because of the Child's health concerns, the
Child's physician restricted the Child from leaving the
foster home, except for medical appointments, from November
2015 through March 2016. According to Ms. Greer, Father was
provided with a list of all medical appointments and invited
to attend those appointments. Because of the Child's
condition and inability to leave the foster home except for
medical appointments, DCS treated Father's projected
attendance at those medical appointments as his visits.
Greer further testified that Father had not visited with the
Child since the Child entered DCS custody. According to Ms.
Greer, Father contacted her on one occasion, indicating that
he would be attending a medical appointment. Father, however,
failed to attend the appointment. Ms. Greer stated that
Father had never informed her that he had transportation
issues or that he was employed during the four months prior
to his incarceration. In March 2016, although the Child's
physician released her to leave the foster home for purposes
other than medical appointments, the Child was still limited
in terms of travel. Ms. Greer testified that Father had not
attended any medical appointments or visited with the Child
since she had been placed into DCS custody. Furthermore,
Father had never contacted Ms. Greer to inquire as to the
Greer articulated that although the Child maintained no bond
with Father, the Child was currently in a pre-adoptive home,
enjoyed a strong bond with the foster parents, and was doing
"very well." According to Ms. Greer, the Child
required twenty-four-hour care at the time of trial, and the
foster parents were able to provide such care. She stated
that the Child's conditions would require further
surgeries and regular "G-tube
feedings." Ms. Greer also explained that the
Child's care required training, which Father had never
Greer testified that although Father had not provided any
financial support for the Child since the Child had entered
DCS custody, if Father had provided gifts to the Child, DCS
would have considered them as support for the Child.
Concerning the issue, Ms. Greer indicated that while she had
requested that Father provide gifts for the Child, he had
failed to do so.
Martin, a Youth Villages foster care counselor, testified
regarding her involvement with the Child. She had been
assigned to the case in July 2016. Ms. Martin conducted
individual sessions with the Child once a week to address
developmental milestones. According to Ms. Martin, she had
experienced no contact with Father. Additionally, she did not
recount the exact number of medical appointments that the
Child attended from January through April 2016 but stated:
"It was several."
explained that by the time of trial, he had been incarcerated
for eight months. Father stated that he was arrested on May
17, 2016, for an aggravated burglary charge stemming from an
incident that occurred in August 2015. He admitted not
visiting the Child after she was discharged from the hospital
following her birth. According to Father, he never received a
copy of the Child's medical appointments, and although he
had Ms. Greer's phone number, he never requested that Ms.
Greer schedule a visit for him with the Child because he
thought he could not visit apart from attending medical
appointments. Father also indicated that Ms. Greer informed
him "about the doctors' appointments" but that
she "didn't give [him] the dates." According to
Father, notwithstanding that he had asked the foster mother
for the dates of the appointments, for which she had provided
him two, he did not attend either because he was
undisputed that Father signed the Criteria and Procedures for
Termination of Parental Rights on November 6, 2015. Father
testified that Ms. Greer hurriedly explained the form to him
on November 6, 2015, in the hallway of the courthouse prior
to the preliminary hearing. He further explained that the
area was noisy and busy and that they had barely located a
place to sit. According to Father, the explanation was
rushed, and he did not leave the meeting with an
understanding of the form he had signed. Father reported that
he believed he had to sign the form that day or
"something would happen."
admitted that he did not purchase any items for the Child
from April through July 2016, explaining that he was unaware
of the process to deliver the items to the Child. According
to Father, he did purchase some items for the Child following
her birth but never provided those items to DCS or the foster
mother. Father did relate that he took clothing to the
hospital when the Child was hospitalized following her birth.
Regarding expenses, Father testified that he paid
approximately $200 to his sister each month for rent and
provided her with $50 to $150 each month for the electricity
bill. Father also paid approximately $60 each month for his
cellular telephone bill. He claimed no additional expenses
other than food, hygiene items, and similar items.
Father testified that he was present during all court dates
in the juvenile court proceedings, he acknowledged that
except for the court hearings, he did not follow up with the
Child's condition after he lost his phone at the end of
2015. Father indicated that both Ms. Greer's and the
foster mother's telephone numbers were listed contacts in
his cellular telephone when it was lost. Father also
explained that he did not purchase another telephone, but
rather used his sister's telephone as needed.
to Father, he never received a copy of the December 9, 2015
permanency plan through the mail and was never invited to the
meetings to develop the permanency plan. Father offered that
he had completed a parenting class and a victim impact class
while incarcerated. For proof, he provided corresponding
completion certificates to the trial court. Father also
provided the trial court with a certificate of baptism.
foster mother, D. B. ("Foster Mother"), testified
that she had been a foster parent with Youth Villages for
thirteen years. The Child had been in Foster Mother's
home since November 2, 2015, shortly after the Child was
placed into DCS custody. Although the Child presented many
medical issues, Foster Mother reported that the Child was
thriving in her home. Foster Mother expressed her desire, as
well as that of her husband, to adopt the Child if that
opportunity arose. According to Foster Mother, she had never
met with Father but had spoken to him. Foster Mother stated
that when she had last spoken with Father on November 3,
2015, for approximately ten or fifteen minutes, she had
provided her telephone number to Father, indicating that he
was "welcome" to call her. Foster Mother further
related that the last time she communicated with Father was
in November 2015 through text messaging to inform Father of
the dates for the Child's medical appointments. She
stated that Father responded to her text message regarding
the medical appointments with a message reading,
"okay." According to Foster Mother, she provided
some dates to Father directly and provided the remaining
dates to Ms. Greer, who was to notify Father of the dates.
Foster Mother confirmed that the Child had several medical
appointments per month that occurred between the hours of
8:00 a.m. to 5:00 p.m.
Mother also indicated that Father never contacted her to
inquire about the Child's well-being or to schedule a
visit with the Child. Foster Mother described the Child's
medical conditions, which included Down syndrome and a
thyroid issue. According to Foster Mother, the Child had also
undergone surgery to repair her atrioventricular canal and
required a G-tube for feedings. The Child wore necessary foot
braces because of her left hip condition, with further
surgery expected. Foster Mother also explained that although
the Child experienced problems with the movement of her eyes,
the physicians were unsure whether surgery would be required.
The Child also had undergone tube placement into her ears.
to Foster Mother, the Child was eighteen months old at the
time of trial, developmentally delayed, and functioning on
the level of an eight-month-old child. Although the Child had
not begun walking and had only begun sitting approximately
three months prior to trial, she had recently demonstrated
the ability to pull herself up to stand and was
"cruising some." The Child had been teething, and
her teeth had "come in really rigid and sharp, "
requiring regular dental appointments. The Child could speak
only a few words. Although she continued to require feedings
though the respective tube, the Child had recently accepted
more food by bottle. Foster Mother explained that while she
had to complete a training class at LeBonheur Hospital for
the G-tube, she had worked for twenty-five years in patient
care and was familiar with its use. The Child also was
provided services in the foster home through Tennessee Early
Intervention System, which included developmental therapy
twice per month, physical therapy twice per month, and speech
therapy once per week.
Trent, employed by Shelby County Corrections, testified that
she was one of Father's counselors while he was
incarcerated. She confirmed that Father had recently been
granted parole, opining that Father had been a productive
inmate and had been rehabilitated to the point of being a
productive citizen in the community.
trial court entered a final judgment on February 13, 2017,
terminating Father's parental rights to the Child. The
court found by clear and convincing evidence that Father (1)
had abandoned the Child by willfully failing to support her
during the four months immediately preceding his
incarceration, (2) had abandoned the Child by willfully
failing to visit her in the four months immediately preceding
his incarceration, and (3) had engaged in conduct prior to
his incarceration that exhibited a wanton disregard for the
welfare of the Child. The trial court further found by clear
and convincing evidence that termination of Father's
parental rights was in the best interest of the Child.
filed a premature notice of appeal on February 7, 2017, which
this Court considered to have been timely filed upon entry of
the February 13, 2017 judgment. See Tenn. R. App. P.
4(d) ("A prematurely filed notice of appeal shall be
treated as filed after the entry of the judgment from which
the appeal is taken and on the day thereof."). Although
Father did not personally sign the notice of appeal, the
notice was signed by Father's trial attorney.
Subsequently, Father filed an amended notice of appeal
containing his signature on April 7, 2017. Relying on In
re Gabrielle W., No. E2016-02064-COA-R3-PT, 2017 WL
2954684 (Tenn. Ct. App. Apr. 20, 2017), this Court dismissed
Father's appeal in an opinion filed July 24, 2017, upon a
determination that this Court lacked jurisdiction to consider
the appeal pursuant to Tennessee Code Annotated §
filed with the Tennessee Supreme Court an application for
permission to appeal pursuant to Tennessee Rule of Appellate
Procedure 11. While Father's application was pending, our
Supreme Court conclusively resolved this issue in the case of
In re Bentley D., ___ S.W.3d ___, ___, No.
E2016-02299-SC-RDO-PT, 2017 WL 5623577, at *5 (Tenn. Nov. 22,
2017). In Bentley, the High Court determined that
Tennessee Code Annotated § 36-1-124(d) (2017) did not
require that a notice of appeal in a termination case be
signed personally by the appellant. See id. On
November 30, 2017, the Supreme Court remanded the appeal to
this Court for a decision on the merits.
presents three issues for our review, which we have restated
1. Whether Father was provided with sufficient notice of the
definition and consequences of abandonment pursuant to
Tennessee Code Annotated § 37-2-403(a)(2).
2. Whether Father's failure to visit and support the
Child during the statutorily determinative period was
3. Whether Father's actions prior to incarceration
demonstrated a wanton disregard for the welfare of the Child.
raised one additional issue on appeal, which we have
similarly restated as follows:
4. Whether Tennessee Code Annotated § 36-1-124(d)
requires the signature of Father on the notice of appeal.
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, rather
than as simply more probable than not. In re Audrey
S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
* * *
In light of the heightened burden of proof in termination
proceedings, however, the reviewing court must make its 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
Bernard T., 319 S.W.3d at 596-97.
In re Carrington H., 483 S.W.3d at 522-24.
"[P]ersons seeking to terminate [parental] rights must
prove all the elements of their case by clear and convincing
evidence, " including statutory grounds and the best
interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).
Authority of Special Judge
threshold issue, we first address, sua sponte,
whether the special judge, Harold W. Horne, was properly
appointed to adjudicate this matter. See Tenn. R.
App. P. 13(b); see, e.g., Cty. of Shelby v. City of
Memphis, 365 S.W.2d 291, 291 (Tenn. 1963). If Mr. Horne
were not properly appointed as a special judge, we must then
determine whether the finality and validity of the trial
court's judgment are affected. Father did not raise this
as an issue in his appellate brief, and the final order in
this matter states: "No party objected to the Special
Judge presiding over this matter." Upon our careful
review and because Father has acquiesced in the appointment
of Mr. Horne as ...