Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Maya R.

Court of Appeals of Tennessee, Knoxville

April 4, 2018

IN RE MAYA R. ET AL.

          Assigned on Briefs January 3, 2018

          Appeal from the Juvenile Court for Knox County No. 161765 Timothy E. Irwin, Judge

         Mother appeals the trial court's decision to terminate her parental rights to two children on the grounds of (1) persistence of conditions, (2) substantial noncompliance with the requirements of the permanency plan, and (3) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the children. She further challenges the trial court's finding by clear and convincing evidence that termination of her parental rights was in the best interest of the children. We reverse in part and affirm in part.

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

          Gregory E. Bennett, Seymour, Tennessee, for the appellant, Bettina T.

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

          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

         Bettina T. ("Mother") and Richard R. ("Father") are the biological parents of Maya R., born in April 2008, and Nickolas R., born in June 2010. Mother and Father never married, but Father was listed on the birth certificates of both children and he did not dispute being the children's father. Mother also has three older children who are not involved in this case.

         The family resided in Ohio until moving to Tennessee in 2011. Mother and Father had a tumultuous, on-again-off-again relationship riddled with domestic violence. While living in Ohio, Mother underwent surgery to have a rod inserted into her arm after Father broke her arm. He also caused injuries to her mouth that required stitches. Before moving to Tennessee, Mother lost custody of her three older children due to domestic violence in the home. She sent two of the children to live with an aunt and uncle in North Carolina. Ohio's child protective agency removed the third child from the home after Mother's family reported that she failed to protect the child from Father. That child was adopted by a family in Ohio. In addition to the domestic violence in the home, Mother had a substance abuse problem. She admitted to using crack cocaine while living in Ohio.

         The domestic violence and substance abuse continued when the family moved to Tennessee. The Tennessee Department of Children's Services ("DCS") first became involved with the family in 2014 due to allegations of domestic violence and drug use in the home. DCS investigated the family on six or seven occasions for domestic violence or drug use. In regard to the domestic violence issue, Mother called the police in April 2015 after an altercation between her and Father regarding his use of her car. A few months later, she made Father move out of the home because "he put his hands around her throat." Mother allowed Father to return to the home and, in October 2015, the manager of her apartment complex placed him on the no-trespass list after he caused a domestic disturbance. In January 2016, police responded to yet another domestic disturbance in the home. On this occasion, the altercation between Mother and Father escalated to the point that Mother barricaded herself and the children in the children's bedroom. The police helped Mother and the children escape through a window and transported Father to his sister's residence in Anderson County.

         On April 20, 2016, another altercation occurred between Mother and Father. He stole her car after breaking the windshield and repeatedly punching her in the head and face. Nearly a month later, on May 13, Mother filed a petition for an order of protection against Father based on the events that occurred on April 20. In the petition, Mother stated that "[t]here hasn't been a day that I am not scared he will hurt me or get someone to hurt me. [Father] threatened to kill or hurt me everyday." The trial court issued an ex parte temporary order of protection three days later, ordering Father to have no contact with Mother and to immediately move out of the home. On June 23, 2016, the trial court granted Mother an order of protection that was effective until June 22, 2017.

         Although the order of protection was in effect, Father contacted Mother on May 31, 2016, requesting a visit with the children. Mother disregarded the order of protection and agreed to meet Father with the children at the auto shop where he worked and temporarily resided in his van. Mother and the children spent the night with him in his van and, upon waking the following morning, Father "began to accuse [Mother] of stealing his crystal-meth." He then stabbed her in the thigh with his pocket knife while the children were outside playing. Thereafter, he drove Mother and the children to his sister's home and fled the scene. Police arrested Father later that day and charged him with two counts of aggravated assault. After pleading guilty to both charges, he received a sentence of four years, with ninety days to be served in jail.

         On June 10, 2016, DCS obtained an ex parte restraining order against Mother and Father. The restraining order prohibited Father from having any contact with the children and ordered Mother not to permit Father to have contact with the children. The trial court scheduled a preliminary hearing on the matter for June 14, 2016, but Mother failed to appear. The trial court found probable cause to believe that the children were dependent and neglected due to "domestic violence in [the] home, substance abuse issues, and inability to provide appropriate care and supervision" for the children and awarded temporary custody of the children to DCS. The children have continuously remained in foster care since that time.

         Father was released from jail on August 7, 2016. At the time of his release, he signed a conditional release order mandating that he have no contact with Mother. Shortly thereafter, despite the order of protection and conditional release order, Mother again reunited with Father. Mother met with a DCS case manager on August 22, 2016 to discuss her attending non-offender domestic violence classes. The case manager noted that Mother had a black eye, which Mother reported was the result of her windshield breaking and hitting her in the eye when she drove over a pothole. Two days later, on August 24, 2016, a police officer stopped Father for several traffic violations, and Mother was a passenger in the vehicle. She reported to the police officer that three days earlier, Father "assaulted [her] by striking [her] in the right eye with his elbow." The police officer observed that Mother also had an abrasion inside her left ear. Father was arrested and, on October 28, 2016, he pled guilty to aggravated assault, resulting in the revocation of his probation and a sentence of five years' incarceration.[1]

         The trial court held a hearing on September 13, 2016, and on October 25, 2016, it entered an order adjudicating the children dependent and neglected due to Mother's "[a]lcohol and [d]rug issues, her mental health issues, her failure to comply with the [r]estraining [o]rder, and the domestic violence in the home with the father, and failure to provide for the appropriate care and supervision of the children." Mother was allowed supervised visitation with the children. Initially, her visitation was scheduled for once a week for one hour. After she missed some of her scheduled visits, however, she requested that visitation be every other week for two hours because "she felt that might make it so that she was able to attend more visits."

         On March 27, 2017, DCS filed its petition to terminate Mother's parental rights.[2]DCS alleged four grounds for termination: (1) abandonment by willfully failing to engage in more than token visitation, (2) persistence of conditions, (3) substantial noncompliance with the permanency plan, and (4) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the children. The trial court heard the matter on July 26, 2017, and determined there was clear and convincing evidence to support three of the four grounds alleged: persistence of conditions, substantial noncompliance, and failure to manifest an ability or willingness to assume legal and physical custody or financial responsibility. The court did not find that clear and convincing evidence supported the ground of abandonment by willfully failing to engage in more than token visitation.[3] The trial court then concluded that it was in the best interest of the children for Mother's rights to be terminated. Mother timely appealed.

         We consolidate and restate the issues raised by Mother on appeal as follows: (1) whether the trial court erred in finding by clear and convincing evidence that grounds existed to terminate Mother's parental rights, and (2) whether the trial court erred in determining that termination of Mother's parental rights was in the best interest of the children.

         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) (citing Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)). Although this right is fundamental, it is not absolute. The state may interfere with parental rights in certain situations. In re Angela E., 303 S.W.3d at 250. Our legislature has identified "'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 Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting 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)). The existence of any one of the statutory 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)).

         We review the trial court's findings of fact de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re Serenity B., 2014 WL 2168553, at *2. In light of the heightened standard of proof, we must then determine whether the facts, as found by the trial court or as supported by a preponderance of the evidence, 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

         I. Grounds ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.