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In re Bentley D.

Court of Appeals of Tennessee, Knoxville

March 21, 2018

IN RE BENTLEY D.

          Assigned on Briefs February 2, 2018

          Appeal from the Circuit Court for Washington County No. 34545 James E. Lauderback, Judge

         Father appeals the trial court's termination of his parental rights on the ground of wanton disregard for the child's welfare prior to the father's incarceration. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Lawrence Scott Shults, Johnson City, Tennessee, for the appellant, David D.

          Andy D. Bennett, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and John W. McClarty, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         Melissa R. ("Mother") and David D. ("Father") are the biological parents of Bentley D., who was born in June 2012. Father was incarcerated with the Tennessee Department of Correction at the time of the child's birth. Mother married Aurelio G. ("Stepfather") in February 2014.

         On June 26, 2015, Mother and Stepfather filed a petition to terminate Father's parental rights and to allow Stepfather to adopt Bentley. The petition alleged as grounds:

[F]ather has never paid support for the child within the prior four months of this petition, nor has he ever paid any support although he has been incarcerated from the date of the child's birth to the present time, and that respondent within the prior four months has not attempted to call petitioner mother to check as to the welfare of this child nor has he ever sent this child a letter or card for petitioner mother to read to the child since an October 2013 letter and a drawn picture for Bentley to color in June, 2013. Although respondent did ask about this child to petitioner Melissa [R.] on February 24, 2014, he stated on that date that he wished to surrender his parental rights to the child. Grounds exist for termination of the father's parental rights on the basis of abandonment.

         Father filed an answer opposing the termination of his parental rights in which he alleged that Mother told him to stop writing and that he "made several attempts to check on my child" but the mail came back "return to sender" or he never received a response from Mother. Father further stated that Mother "moved four times in two years." The trial court appointed a guardian ad litem for the child and an attorney for Father.

         In an amended answer filed on October 23, 2015, Father raised a number of defenses, including the defense that Mother's petition failed to state a claim upon which relief could be granted. Father filed a motion to dismiss on October 29, 2015, based upon Mother's failure to state a claim upon which relief could be granted. Mother filed a response in opposition to the motion to dismiss. The motion was heard on May 23, 2016. The trial court found that Mother's petition did not comply with Tenn. Code Ann. § 36-1-113(d)(3)(A)(i)[1] or Tenn. Code Ann. §§ 36-1-113(d)(3)(C)(ii) and (iii).[2] Although the trial court found that, when taken together, these defects made the petition defective, the trial court determined that the defects were not fatal. Upon Mother's oral motion, the trial court gave her additional time to file an amended petition to correct the defects. The trial court further stated: "The petitioners are also ORDERED to amend their Petition to more fully state, describe and allege the ground of abandonment, with particular reference to the definition of abandonment set out in T.C.A. § 36-1-102."

         On March 27, 2016, Mother filed a pleading entitled "Amendments to Petition" that included the omitted provisions specified by the trial court and the following paragraph regarding grounds:

Petitioners further allege an additional act of abandonment of the child by the respondent, that being that prior to his incarceration in the Tennessee Department of Corrections, respondent committed acts in wanton disregard for the rights of this child. Specifically, respondent had just served thirty days upon a violation of probation for his prior Washington County Tennessee felony convictions, when he embarked on an additional crime spree involving eight auto burglaries and credit card fraud, knowing at the time that petitioner . . . was pregnant with his child the subject of this petition. Therefore he was sentenced on the prior felonies and the new felonies to incarceration in the Tennessee Department of Corrections, wherein he still resides serving the sentences in one of their facilities wherein he was incarcerated when this cause was initially filed. Petitioners as well rely on their prior allegation of abandonment that respondent failed to send mail on a regular basis to the child or to inquire about the child on a regular basis within four months of the petition being filed.

On June 22, 2016, Father filed an answer denying these allegations and demanding strict proof; he stated that he was scheduled to be released from prison before June 30.

         The final hearing was held on October 27 and 28, 2016. The court heard testimony from Mother, Stepfather, a friend, maternal aunt, maternal grandmother, Father, and paternal great-grandmother. The trial court discussed the statutory ground of failure to pay child support during the four months preceding the parent's incarceration pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(iv). Because the child in this case was not born until after Father's incarceration, the trial court determined that this ground was not applicable. The trial court then found that Father's parental rights were subject to termination for abandonment by wanton disregard prior to incarceration pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(iv) and that termination was in the best interest of the child. After the expiration of any appeal, the court stated, the petitioners could proceed with their adoption petition. Father appealed.

         Father argues on appeal that the trial court erred: (1) in failing to find Mother's petition deficient under the Rules of Civil Procedure, (2) in using an improper time window when considering the ground of wanton disregard, and (3) in finding sufficient evidence to justify termination for wanton disregard.

         Standard of Review

         Under both the federal and state constitutions, a parent has a fundamental right to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 249-50 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (quoting Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)). This right is not absolute, however. If a compelling state interest exists, the state may interfere with parental rights. Nash-Putnam, 921 S.W.2d at 174-75 (quoting Nale, 871 S.W.2d at 678). Our legislature has enumerated the grounds upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g). The existence of any one of the enumerated grounds will support a termination of parental rights. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Because terminating a parent's fundamental parental rights has severe consequences, termination cases require a court to apply a higher standard of proof. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn. Ct. App. 2006). Consequently, a court must determine by clear and convincing evidence both that grounds for termination exist and that termination is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); 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 Serenity B., No. M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations omitted)).

         In light of the heightened standard of proof required in termination of parental rights cases, we must adapt the customary standard of review established by Tenn. R. App. P. 13(d). Id. In accordance with Tenn. R. App. P. 13(d), we review the trial court's findings of fact de novo with a presumption of correctness unless the evidence preponderates otherwise. Id. Next, we must determine whether the facts establish the existence of one or more grounds for termination by clear and convincing evidence. In re M.J.B., 140 S.W.3d at 654.

         Analysis

         Sufficiency ...


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