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In re Haley S.

Court of Appeals of Tennessee, Nashville

March 29, 2018

In re HALEY S. et al.

          Session November 7, 2017

          Appeal from the Juvenile Court for Rutherford County Nos. TC2277, TC2278 Donna Scott Davenport, Judge

         This appeal arises from a juvenile proceeding wherein the mother, Heather P. ("Mother") filed a petition to modify her visitation with her two children, Haley S. and Leila P. ("the Children"), who were eleven and four years old, respectively, at the time of trial. Haley's father, Michael S. ("Father"), remained incarcerated during the entire action. Leila's father was deceased prior to the commencement of this proceeding. The paternal grandparents of Leila, Leroy W. and Tammie W. ("Grandparents"), who had legal custody of both children, subsequently filed a counter-petition to terminate Mother's parental rights to the Children and Father's parental rights to Haley. The magistrate of the juvenile court entered a pre-trial order, stating, inter alia, that if Grandparents were successful in terminating the parents' rights, Mother's petition to modify visitation would be dismissed but that if Grandparents were not successful, Mother's petition would be scheduled for hearing. The magistrate's order further allowed Mother to amend her original petition to modify visitation. Following a bench trial regarding the termination action, the trial court granted Grandparents' petition to terminate the parents' parental rights to the Children. The trial court found by clear and convincing evidence that the conditions leading to the removal of the children from Mother's custody still persisted. The trial court further found that grounds existed regarding Father because he had abandoned Haley by failing to visit her and because he had failed to establish parentage. Mother appealed the trial court's decision.[1] Because no adjudicatory hearing order exists in the record finding the Children to be dependent, neglected, or abused, we reverse the ground of persistence of conditions as to Mother. We further determine that the trial court failed to make sufficient findings of fact to support its determination that statutory grounds for termination existed regarding Father. Therefore, we vacate the portion of the judgment terminating Father's parental rights and remand to the trial court for sufficient findings of fact and conclusions of law pursuant to Tennessee Code Annotated § 36-1-113(k) (2017).

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

          Whitney H. Raque, Murfreesboro, Tennessee, for the appellant, Heather P.

          Carl R. Moore, Murfreesboro, Tennessee, for the appellee, Michael S.

          J. Leo Richardson, III, Murfreesboro, Tennessee, for the appellees, Leroy W. and Tammie W.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         In May 2013, the trial court placed the Children into the custody of Grandparents. On November 14, 2013, the trial court entered an "Order for Disposition, " establishing a transitory visitation schedule for Mother in preparation for the Children's return to the custody of Mother. On June 13, 2014, the trial court entered an "Amended Final Disposition Order, " finding that it was in the Children's best interest to remain in the custody of Grandparents and granting to Mother two, four-hour unsupervised visits with the Children per month to occur at Grandparents' home.[2] In its amended dispositional hearing order, the trial court noted that an adjudicatory hearing had been conducted and a resultant order entered on October 24, 2013; however, that order is not contained within the record on appeal. We further note that only the dispositional hearing orders concerning Leila appear in the record.

         On November 3, 2015, Mother filed a petition to modify the visitation schedule established by the juvenile court, alleging that a change in circumstance existed warranting modification. Subsequently, on January 7, 2016, Grandparents filed a counter-petition for termination of parental rights, requesting that Mother's parental rights to the Children be terminated and that Father's parental rights to Haley be terminated. On August 25, 2016, Mother filed a motion requesting additional visitation with the Children, a continuance of the trial in the matter, and an amendment of her petition to modify the visitation schedule. Following a hearing regarding Mother's motion, Magistrate Adam T. Dodd entered an interim order, which stated in pertinent part:

Based upon the argument of counsel and the entire record as a whole, this Honorable Court finds as follows:
1. That due to the Termination of Parental Rights trial taking place next week on September 22, 2016, this Court is of the opinion that this motion is not timely;
2. That the Termination of Parental Rights trial takes priority over the Mother's original Petition and shall be heard first. If Petitioner[s] are successful, the Mother's Petition is dismissed. If Petitioner[s] are not successful, then Mother's Petition shall be set for hearing; and
3. That Mother is granted leave to amend her Petition.

         Following a subsequent bench trial regarding the termination petition, the trial court entered an order on December 27, 2016, finding clear and convincing evidence that grounds existed to terminate both Mother's and Father's parental rights to the Children. See generally Tenn. Code Ann. § 36-1-113(g) (providing grounds for termination of parental rights). The trial court terminated Mother's parental rights to the Children on the statutory ground that the conditions leading to the removal of the Children from her home still persisted. Regarding Father's parental rights to Haley, the trial court terminated Father's rights on the statutory grounds that Father had abandoned Haley by failing to visit her prior to his incarceration and that he had failed to establish parentage. The trial court determined that clear and convincing evidence did not exist to terminate Mother's parental rights on the grounds of abandonment for failure to support the Children, abandonment for failure to provide a suitable home for the Children, or substantial noncompliance with the permanency plan.[3] The trial court further found by clear and convincing evidence that termination of both Mother's and Father's parental rights was in the best interest of the Children.

         The trial court's judgment did not address Mother's pending original petition to modify visitation or the statutory ground for termination that Father was incarcerated subject to a ten-year sentence that was imposed when Haley was under the age of eight. Mother subsequently filed a notice of appeal. Father has participated in the appeal as an appellee and raised additional issues regarding the termination of his parental rights to Haley.

         II. Issues Presented

         Mother raises two issues for our review, which we have restated as follows:

1. Whether the trial court erred in terminating Mother's parental rights to the Children by finding that the statutory ground of persistent conditions had been proven by clear and convincing evidence.
2. Whether the trial court erred by finding that termination of Mother's parental rights was in the best interest of the Children.

         Father raises three additional issues for appellate review, which we have restated as follows:

3. Whether the trial court erred by finding that Father failed to establish parentage of Haley.
4. Whether the trial court erred by terminating Father's parental rights to Haley based on his incarceration subject to a sentence of ten or more years.
5. Whether the trial court erred by finding that termination of Father's parental rights was in the best interest of Haley.

         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 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 ...


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