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In re Victoria H.

Court of Appeals of Tennessee, Nashville

February 27, 2018

IN RE VICTORIA H.

          Assigned on Briefs February 2, 2018

         Appeal from the Juvenile Court for Marion County No. 23-112A Ronnie J. T. Blevins, II, Judge

         This is a termination of parental rights case. Appellant/Father appeals the trial court's termination of his parental rights on the grounds of: (1) failure to establish/exercise paternity; (2) abandonment by willful failure to support; and (3) abandonment by an incarcerated parent for wanton disregard. Appellant also appeals the trial court's finding that termination of his parental rights is in the child's best interest. Because Appellee Tennessee Department of Children's Services did not meet its burden to show that Father has the ability to pay support, we reverse the trial court's termination of Father's parental rights on the ground of abandonment by willful failure to support. The trial court's order is otherwise affirmed.

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

          Robert Floyd Davis, Winchester, Tennessee, for the appellant, Shaun P.

          Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Kenny Armstrong, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and W. Neal McBrayer, J., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Backgrounds

         Appellant Shaun P. ("Father") is the father of the minor child, Victoria H. (the "Child").[1] In September of 2015, approximately four days before Victoria was born, Jacqueline H. ("Mother") was arrested for manufacturing methamphetamine.[2] Mother tested positive for methamphetamine, and her three older children, who are not the subject of this appeal, were placed in the custody of the Tennessee Department of Children's Services ("DCS, " or "Appellee"). When Victoria H. was born, she tested positive for methamphetamine and was placed in the neonatal intensive care unit due to withdrawal symptoms. At trial, the Child's foster mother testified that Victoria continues to suffer the effects of being born addicted to methamphetamine, see further discussion infra. Before Victoria was released from the hospital, the juvenile court granted temporary custody to DCS. The Child was placed in foster care, and she has lived with the same foster family since that time. On December 10, 2015, the trial court entered an order adjudicating the Child to be dependent and neglected due to neglect and severe child abuse on the part of Mother. Mother is married to Jonathan H.[3]

         Father has a long criminal history. In February of 2003, he pled guilty to: (1) four counts of burglary of an automobile; two counts of theft over $1, 000; (3) two counts of theft over $500; (4) four counts of theft under $500; and (5) two counts of vandalism under $500. He received an effective sentence of sixteen years and was released from prison in March of 2015, six months before Victoria H. was born. Father was incarcerated again in March of 2016, see infra.

         After he was released from prison in 2015, Father moved into Mother's home. At trial, Father testified that he was aware that methamphetamine was being manufactured in the home and conceded that "there [were] a lot of drugs coming in and out of the house." At some point, Father learned that Mother was pregnant with Victoria H. There were questions concerning paternity. Father testified that, when the Child was born, Mother was married to Jonathan H., but she was having an affair with another man, whom Father described as a "meth cook." Despite Mother's activities, Father testified that he thought he was Victoria H.'s biological father "from the very beginning." Father further stated that Mother told him, during the pregnancy, that he was the Child's father, see infra. Despite his belief that he was the Child's biological father, Appellant did not take action to establish paternity until DCS filed the petition to terminate his parental rights in September of 2016. At that point, Father submitted to DNA testing, which revealed that he was, in fact, the Child's father. On November 10, 2016, the trial court entered an order establishing Appellant as the Victoria's legal father.

         As mentioned above, Father's criminal activity continued after his initial release from jail in March of 2015. The same month he was released, Father was charged with shoplifting and aggravated stalking of Mother. Father was convicted of shoplifting and phone harassment and received probation for each offense. In March of 2016, Father violated his probation for failure to report and a drug-paraphernalia charge. Father was released from jail in November of 2016. On or about February 12, 2017, Father was incarcerated again for violating his probation by failing to report.

         On September 1, 2016, [4] DCS filed its petition to terminate Father's parental rights to Victoria H. As grounds, DCS averred: (1) failure to establish/exercise paternity; (2) abandonment by willful failure to support; and (3) abandonment by an incarcerated parent for wanton disregard. The trial court appointed an attorney to represent Father and a guardian ad litem for the Child. The trial court heard the petition on March 21, 2017. Although Father remained incarcerated at the time of the hearing, he was allowed to attend and testify. By order of May 1, 2017, the trial court terminated Father's parental rights to Victoria H. on the grounds of: (1) failure to establish paternity or exercise paternity pursuant to Tennessee Code Annotated Sections 36-1-113(g)(9)(A); (2) abandonment by willful failure to support pursuant to Tennessee Code Annotated Sections 36-1-113(g)(1) and 36-1-102(1)(A)(iv); and (3) abandonment by an incarcerated parent for wanton disregard pursuant to Tennessee Code Annotated Section 36-1-113(g)(1) and 36-1-102(1)(A)(iv). The trial court also found, by clear and convincing evidence, that termination of Father's parental rights was in the Child's best interest. Father appeals.

         II. Issues

         Appellant raises two issues for review, which we restate as follows:

1. Whether there is clear and convincing evidence to support the trial court's termination of Appellant's parental rights on any statutory ground.
2. Whether there is clear and convincing evidence that termination of Appellant's parental rights is in the child's best interest.

         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. at 653.

         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

         As noted earlier, the trial court relied on the following statutory grounds in terminating Appellant's parental rights: (1) failure to establish/exercise paternity; (2) abandonment by willful failure to support; and (3) abandonment by an incarcerated parent for wanton disregard. 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.

         A. Failure to Establish/Exercise Paternity

         Tennessee Code Annotated Section 36-1-113(g)(9)(A) provides, in relevant part:

(9)(A) The parental rights of any person who, at the time of the filing of a petition to terminate the parental rights of such person, . . . is the putative father of the child may also be terminated based upon any one (1) or more of the following additional grounds:
(iii) The person has failed to seek reasonable visitation with the child . . . . (iv) The person has failed to manifest an ability and willingness to assume legal and physical custody of the child;
(v) Placing custody of the child in the person's legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child; or
(vi) The person has failed to file a petition to establish paternity of the child within thirty (30) days after notice of alleged paternity, or as required in § 36-2-318(j), or after making a claim of paternity pursuant to § 36-1-117(c)(3)[.]

Tenn. Code Ann. § 36-1-113(g)(9)(A). For purposes of Section 36-1-113(g)(9)(A)(vi), "notice" "means the oral statement to an alleged biological father from a biological mother that the alleged biological father is believed to be the biological father of the biological mother's child." Tenn. Code Ann. § 36-1-113(g)(9)(B)(ii).

         The grounds set out in Section 36-1-113(g)(9)(A) are only applicable to putative fathers. As ...


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