In re HALEY S. et al.
Session November 7, 2017
from the Juvenile Court for Rutherford County Nos. TC2277,
TC2278 Donna Scott Davenport, Judge
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. 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).
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,
R. Moore, Murfreesboro, Tennessee, for the appellee, Michael
Richardson, III, Murfreesboro, Tennessee, for the appellees,
Leroy W. and Tammie W.
R. Frierson, II, J., delivered the opinion of the court, in
which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.
R. FRIERSON, II, JUDGE
Factual and Procedural Background
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. 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.
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
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
3. That Mother is granted leave to amend her Petition.
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. 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
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.
raises two issues for our review, which we have restated as
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
2. Whether the trial court erred by finding that termination
of Mother's parental rights was in the best interest of
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
Standard of Review
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).
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 ...