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In re Nevaeh B.

Court of Appeals of Tennessee, Jackson

February 14, 2018

IN RE NEVAEH B.

         Assigned on Briefs June 1, 2017

         Appeal from the Juvenile Court for Chester County No. 2015-JV-1323 Van McMahan, Judge.

         This is a termination of parental rights case. The trial court terminated Mother/Appellant's parental rights on the grounds of: (1) abandonment by an incarcerated parent for willful failure to visit, willful failure to support, and wanton disregard; (2) failure to substantially comply with the requirements of the permanency plan; and (3) persistence of the conditions that led to the Child's removal. The trial court also found, by clear and convincing evidence, that termination of Appellant's parental rights is in the child's best interest. Because the proof is not sufficient to establish that the child was removed from Appellant's home, we reverse the ground of persistence of conditions. The trial court's order is otherwise affirmed.

         On Remand from the Supreme Court; Judgment of the Juvenile Court Reversed in Part, Affirmed in Part, and Remanded

          William Johnson Milam, Jackson, Tennessee, for the appellant, Makayla B.

          Lanis L. Karnes, Jackson, Tennessee, for the appellees, James G. and Missy G.

          Arnold B. Goldin, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and John W. McClarty, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE.

         I. Background

         This termination of parental rights case is on remand from the Tennessee Supreme Court for consideration on the merits. In our initial review of the case, we determined that this Court lacked subject-matter jurisdiction over the appeal based on Appellant/Mother's failure to sign the notice of appeal. In its recent decision, In re Bentley D., No. E2016-02299-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, her attorney did. As such, under the holding in In re Bentley D., this Court has jurisdiction to adjudicate the appeal on its merits. We now turn to that task.

         In March of 2013, Nevaeh B. was born to Appellant Makayla B. ("Mother").[1] On January 8, 2014, the Tennessee Department of Children's Services ("DCS") received a referral that Nevaeh, who was nine months old at the time, had been exposed to drugs. Specifically, DCS was contacted after Mother tested positive for methamphetamine and cocaine. On January 10, 2014, DCS filed a petition for adjudication of dependency and neglect in the Juvenile Court of Chester County. As grounds for its petition, DCS averred that the Child was: (1) without a parent, guardian or legal custodian, Tenn. Code Ann. § 37-1-102(b)(12)(A); (2) in such a condition of want or suffering or [was] under such improper guardianship or control as to injure or endanger the morals or health of the [child], Tenn. Code Ann. § 37-1-102(b)(12)(F); and (3) suffering from abuse or neglect, Tenn. Code Ann. § 37-1-102(b)(12)(G). DCS further averred that Mother "has a reported history of drug use, including methamphetamine and cocaine. [Mother's] whereabouts are currently unknown." DCS noted that, at the time of removal and "during [DCS's] investigation, " the child "was at the home of the maternal grandparents." Custody was initially awarded to the Child's maternal grandparents. On January 13, 2014, the juvenile court appointed an attorney for Mother and a guardian ad litem for the Child. By order of March 4, 2014, the juvenile court granted custody to the Child's paternal aunt and uncle, James and Missy G. (together, "Appellees"). The Child has remained with Appellees since that time.

         By order of July 3, 2014, the juvenile court adjudicated the Child to be dependent and neglected. The court noted that Mother "stipulate[s] that the Child is dependent and neglected and stipulate[s] that the court may adopt the facts of the petition as its findings of fact." On September 4, 2014, the juvenile court granted Mother supervised visitation, to-wit:

Visitation for the mother is to be supervised by Kelly [C., James G.'s sister] . . . . The visits should be two hours a week, on the same day each week and same time, unless mutually agreed upon by the parties with twenty-four (24) hour advance notice. . . . If mother is ten (10) minutes late without communicating in advance or good cause, the supervisor will leave with the child (Not having transportation is not good cause since Mother will know when her visitation is every week). . . . If mother misses three (3) visits in a row without communicating or without good cause, the visits will stop completely until she returns to court for the Judge to review the situation.

         The juvenile court's order further provided that Mother could petition for an increase or change in visitation/custody once she had: (1) resolved all criminal charges; (2) completed parenting classes; (3) procured stable housing and employment; and (4) shown proof of a negative hair/nail follicle drug screen.

         On March 10, 2014, Mother participated in a Child and Family Team Meeting with DCS. Thereafter, on June 11, 2014, DCS and Mother entered into a permanency plan for the Child. Mother's requirements, under the plan, were to: (1) provide a safe, stable, and drug-free home environment; (2) participate in alcohol and drug assessment and follow all recommendations thereof; (3) submit to random drug tests; (4) resolve all legal issues and follow all rules of probation; (5) participate in parenting classes and anger management classes.

         From the record, Mother's criminal history dates back to at least August of 2013. As is relevant to this appeal, on May 18, 2014, Mother was arrested for theft under $500. On or about September 25, 2014, while the May 18, 2014 charges were pending, Mother was arrested for violation of her parole and was incarcerated until March of 2015. While she was incarcerated, on January 14, 2015, Mother was convicted of the May 18, 2014 theft charge and was sentenced to 11 months and 29 days. Mother was placed on probation and did not initially serve jail time for that conviction. However, on August 21, 2015, Mother's probation officer conducted a random drug screen, and Mother tested positive for methamphetamine. On August 26, 2015, her parole was revoked and a warrant was issued for her arrest.

         Following Mother's January 14, 2015 conviction, Appellees filed a petition to terminate Appellant's parental rights on February 17, 2015. As grounds for termination of Mother's parental rights, Appellees alleged: (1) abandonment by willful failure to visit or support, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(a)(i); (2) substantial noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and (3) persistence of the conditions that led to the Child's removal from Mother's custody, Tenn. Code Ann. § 36-1-113(g)(3). Appellant filed her answer on April 21, 2015, wherein she denied the material allegations made in the petition.

         The hearing on the petition to terminate Mother's parental rights was scheduled for August 27, 2015. However, Mother failed to appear. Mother's August 26, 2015 warrant, discussed supra, had been issued the previous day. In her testimony, Mother stated that, when she learned that there was an outstanding warrant for her arrest, she chose not to attend the hearing on the termination of her parental rights, fearing that she would be arrested. On December 25, 2015, Mother was arrested on the outstanding warrant and taken into custody.

          The petition to terminate Mother's parental rights was heard on March 9, 2016. Although Mother was incarcerated at that time, she attended the hearing and testified. By order of July 15, 2016, the trial court terminated Appellant's parental rights on the grounds of: (1) abandonment by an incarcerated parent for willful failure to visit, willful failure to support, and wanton disregard; (2) failure to substantially comply with the requirements of the permanency plan; and (3) persistence of the conditions that led to the Child's removal. The trial court also found, by clear and convincing evidence, that termination of Mother's parental rights is in the Child's best interest. Mother appeals

         II. Issues

         Mother raises two issues for review as stated in her brief:

1. Whether the Appellant . . . abandoned the child pursuant to T.C.A. § 36-1-113(g)(1) and § 36-1-102(a)(1).
2. Whether the court's termination of Appellant's parental rights is in the best interest of the child.

         As set out in her statement of the issues, Mother appeals only the ground of abandonment. However, as noted above, the trial court relied on three grounds: (1) abandonment, (2) failure to substantially comply with the permanency plan, and (3) persistence of conditions. 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.

         III. Standard of Review

         Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only when a compelling interest exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds for termination and that termination of parental rights is in the child's best interest must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that the truth of the facts asserted is highly probable ... and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004), perm. app. denied (Tenn. July 12, 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id.

         In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review in Tennessee Rule of Appellate Procedure 13(d). As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). We must then determine whether the facts, as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

         IV. Grounds for Termination of Parental Rights

         A. Abandonment

         The trial court found, by clear and convincing evidence, that Mother's parental rights should be terminated on the ground of abandonment by willful failure to visit and willful failure to support. In pertinent part, Tennessee Code Annotated Section 36-1-113(g) 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). As noted above, Mother was incarcerated from approximately September 25, 2014 until March of 2015; the petition to terminate her parental rights was filed on February 17, 2015. Tennessee Code Annotated Section 36-1-102(1)(A) 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 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 has 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 that exhibits a wanton disregard for the welfare of the child.

         Tenn. Code Ann. § 36-1-102(1)(A)(iv). Accordingly, the relevant time period in this case is from May 25, 2014 until September 25, 2014.

         In In re Audrey S., this Court discussed willfulness in the context of termination of parental rights cases:

The concept of "willfulness" is at the core of the statutory definition of abandonment. A parent cannot be found to have abandoned a child . . . unless the parent has either "willfully" failed to visit or "willfully" failed to support the child for a period of four consecutive months. . . . In the statutes governing the termination of parental rights, "willfulness" does not require the same standard of culpability as is required by the penal code. Nor does it require malevolence or ill will. Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. Conduct is "willful" if it is the product of free will rather than coercion. Thus, a person acts "willfully" if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing. . . .
The willfulness of particular conduct depends upon the actor's intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into a person's mind to assess intentions or motivations. Accordingly, triers-of-fact must infer intent from the circumstantial evidence, including a person's actions or conduct.

In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (internal citations and footnotes omitted). This Court has held that failure to pay support is "willful" if the parent "is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing the support." In re J.J.C., 148 S.W.3d 919, 926 (Tenn. Ct. App. 2004) (quoting In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)).

         For purposes of termination of parental rights, "token visitation" "means that the visitation, under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child." Tenn. Code Ann. § 36-1-102(1)(C). Likewise, "token support" means that the support, under the circumstances of an individual case, is not significant considering the parent's means. Tenn. Code Ann. § 36-1-102(1)(B).

         In its order terminating Mother's parental rights, the trial court made the following, relevant findings concerning abandonment by willful failure to visit:

Arrangements were made by [DCS] and Wolf Counseling for regular visitation with the child. [Mother] only made six of those visits. [Mother] was provided with a cell phone number to contact the custodians regarding visitation . . . and still failed to communicate. [Mother's] last visit was July, 2014.

         The record indicates that Mother visited Nevaeh during the relevant time period. Specifically, Mother visited on May 31, 2014, June 6, 2014, June 25, 2014, July 10, 2014, July 17, 2014, and July 30, 2014. However, in its order, the trial court found that these visits were merely token as Mother did not engage fully in the process of bonding and interacting with the child. Furthermore, the court was troubled by the fact that Mother did not demonstrate appropriate parenting skills during these visits, to-wit:

5/29/14 Mother was a no show.
5/31/14 Mother visited but the counselor was concerned due to lack of interest, mother's issues with controlling anger, ...

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