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In re Catherine J.

Court of Appeals of Tennessee, Jackson

January 30, 2018

In re CATHERINE J.

          Assigned on Briefs July 3, 2017

         Appeal from the Juvenile Court for Shelby County No. CC0587 Harold W. Horne, Special Judge

         This is 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.[1] 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.

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

          James Franklin, Jr., Memphis, Tennessee, for the appellant, Clyde J.

          Herbert H. Slatery, III, Attorney General and Reporter, and Brian A. Pierce, 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 Richard H. Dinkins, J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         The 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.

         Latoya 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.

         Father 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 became incarcerated.

         Ms. 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.

         Ms. 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 Child's well-being.

         Ms. 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."[2] Ms. Greer also explained that the Child's care required training, which Father had never completed.

         Ms. 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.

         Tiara 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."

         Father 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 incarcerated.

         It is 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."

         Father 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.

         Although 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.

         According 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.

         The 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.

         Foster 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.

         According 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.

         Janis 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.

         The 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.

         Father 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 § 36-1-124(d).

         Father 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.

         II. Issues Presented

         Father presents three issues for our review, which we have restated as follows:

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 willful.
3. Whether Father's actions prior to incarceration demonstrated a wanton disregard for the welfare of the Child.

         DCS has 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.

         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, 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).

         IV. Authority of Special Judge

         As a 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 ...


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