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In re Roderick R.

Court of Appeals of Tennessee, Knoxville

April 11, 2018

IN RE RODERICK R. ET AL.

          Assigned on Briefs February 2, 2018

          Appeal from the Circuit Court for Sevier County No. 16-TM-2-II Telford E. Forgety, Jr., Chancellor.

         This is a termination of parental rights case. Upon the petition of the Tennessee Department of Children's Services, the trial court terminated the parental rights of both the mother and father of two children. Clear and convincing evidence supports each ground relied upon by the trial court and the trial court's conclusion that termination of both parents' parental rights is in the children's best interest. Accordingly, we affirm.

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

          Gregory E Bennett, Seymour, Tennessee, for the appellant Rodrick R. Samantha A McCammon, Sevierville, Tennessee, for the appellant, Elisabeth R.

          Herbert H. Slattery, III, Attorney General and Reporter; Brian A. Pierce Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Robert L. Huddleston, Maryville, Tennessee, Guardian Ad Litem for J.R. and R. R., appellees.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which Andy D. Bennett and Thomas R. Frierson, II, JJ., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         Factual Background and Procedural History

         In this appeal, we address the termination of the parental rights of Elisabeth R. ("Mother") and Roderick R. ("Father") to their two minor children, J.R. (born January 2010) and R.R. (born July 2008) (together, the "Children).

         Father and Mother met in 2005 when they were both serving on active duty in the military. In 2010, Mother and Father were married and living in California where Mother was stationed at Camp Pendleton.[1] On April 6, 2010, Father was arrested after bringing J.R. to the hospital with severe injuries.[2] Father pled guilty to three counts of inflicting serious corporal injury upon J.R., and he was sentenced to serve a total of six years in the California Department of Corrections where he remained until his release on July 17, 2015. Sometime after the April 6, 2010 incident, Mother filed for divorce. As a result of the injuries inflicted during the incident that led to Father's convictions, [3] J.R. is permanently mentally handicapped, mostly wheel-chair bound, and extremely limited in his ability to speak.

         In December 2012, Mother was discharged from the military and moved to Tennessee with the Children. The Tennessee Department of Children's Services ("DCS") first became involved with the Children in August 2014. Shortly after midnight on August 6, 2014, Sergeant Rebecca Cowan of the Sevierville Police Department was dispatched to Mother's apartment building in response to a noise complaint. Sergeant Cowan testified that when she arrived, Mother was outside in the parking lot, and she was talking to a ball, which she addressed as her "happy ball." Mother appeared disoriented and was not wearing shoes. When Sergeant Cowan approached Mother, she began yelling at the officer and attempted to run away. Based upon Mother's behavior, Sergeant Cowan testified that she decided to arrest Mother for disorderly conduct.[4] Once Mother was in the patrol car and had been informed that she would be going to jail, Mother told the officer that she could not leave because the Children were in her apartment alone. According to Sergeant Cowan, Mother refused to provide information identifying a possible relative or friend to temporarily take care of the Children. Mother continued to behave erratically, and Sergeant Cowan decided to call EMS rather than taking Mother directly to jail. EMS directed the officer to bring Mother to the hospital for further evaluation, and DCS took the Children into custody.

         On August 7, 2014, DCS filed a "Petition for Temporary Legal Custody and Ex Parte Order, " seeking temporary custody and requesting that the trial court adjudicate the Children to be dependent and neglected. The petition averred that Mother remained under observation due to mental health concerns, but DCS had not yet been able to get in touch with Mother. On August 8, 2014, the trial court entered an emergency protective custody order, appointed a guardian ad litem for the Children, and set a preliminary hearing date for August 20, 2014. Mother did not appear at the preliminary hearing, [5] but she was represented by counsel. The trial court found probable cause that the Children were dependent and neglected and determined that the Children would remain in DCS's custody pending the adjudicatory hearing scheduled to take place on October 29, 2014.

         On October 29, 2014, an adjudicatory hearing was held.[6] Mother appeared at the hearing and stipulated that she had "ongoing mental health concerns associated with PTSD from military service." The trial court adjudicated the Children to be dependent and neglected and ratified the permanency plan submitted by DCS with the permanency goals of "return to parent" or "exit custody to relative."

         Mother participated in the development of the initial permanency plan. Among other things, the permanency plan directed Mother to "identify and address all mental health needs [by taking the following steps]: . . . (1) [Mother] will schedule a mental health assessment with a parenting component at the VA; (2) [Mother] will sign a release with the VA for DCS to obtain a copy of the assessment and any recommendations; (3) [Mother] will follow all recommendations from the assessment." The permanency plan also directed Mother to maintain safe and suitable housing, provide proof of legal income, and attend all of the Children's doctor's appointments.

         On January 15, 2015, a dispositional hearing was held. The trial court judge entered a no-contact order against Father. The trial court also found that Mother was making progress, but it determined that visitation would remain supervised. A letter from a clinical psychologist employed by the VA was filed with the trial court on January 15, 2015. The letter indicated that Mother was participating in counseling for her PTSD and taking her medications as prescribed.

         On March 6, 2015, Mother participated in the development of a second permanency plan. On March 25, 2015, a permanency plan hearing was held, and the trial court entered an order titled "Permanency Hearing Order and Adjudication (adverse to Father), " which ratified the second permanency plan. The order also stated:

[p]rogress toward resolving the reasons the [children are] in foster care has been made but the following barriers still exist: Mother has to eliminate safety concerns from the home, namely 1) secure firearms, 2) obtain suitable beds; and 3) declutter the household.

         The court also noted that DCS was assisting Mother to achieve the permanency plan goals by making home visits to Mother's home and supervising those visits.

         A third permanency plan was created on August 7, 2015, shortly before the trial court approved a trial home placement. The permanency plan directed Mother to continue taking her medications as prescribed and attending her weekly support group for PTSD. Because Mother appeared to be making progress towards the permanency goals, on September 9, 2015, the Children were returned to Mother's physical custody for a ninety-day trial home placement. DCS retained legal custody.

         On November 23, 2015, DCS filed a "Motion and Notice Disrupting Trial Home Placement." The motion averred that events occurring on November 20, 2015 had compelled DCS to disrupt the trial home placement and return the Children to foster care. Specifically, DCS reported that Mother had displayed bizarre behavior in public which had led to her detention by military police, arrest, and involuntary commitment to a VA hospital. The motion explained that, "prior to [Mother's] arrest, [she] was observed at a mall in Knoxville acting erratically. [Mother] was seen speaking to a cat (as though it was a person); attempting to drag the cat by a leash-clearly choking the cat." The motion also reported that Mother had refused to allow DCS personnel to enter Mother's apartment to retrieve necessary medication and medical supplies for J.R. during her hospitalization.

         On January 13, 2016, a hearing was held and the trial court entered a "Permanency Hearing Order and Preliminary Hearing on Disruption of Trial Home Placement." Once again, the trial court ordered Mother to execute a release form so that DCS could access her VA medical and mental health records. The trial court also added the permanency goal of "adoption" and removed the permanency goal of "return to parent" from the permanency plan. Mother objected to the permanency goal changes and continued to refuse to sign the necessary medical releases.

         After a hearing on March 2, 2016, the trial court entered an "Adjudicatory Order on Disruption of Trial Home Placement." Mother stipulated that the trial home placement disruption was for just cause, and the Children were returned to foster care. Once more, the trial court ordered Mother to sign the necessary medical release forms so that DCS could obtain her health records from the VA. Eventually, Mother executed the release forms, but DCS was unable to obtain the VA records until November 2016.[7]

         On March 3, 2016, DCS filed a petition to terminate Mother and Father's parental rights on multiple grounds. DCS retained a licensed clinical psychologist, Dr. Shannon Wilson, and sought to have Mother evaluated prior to trial. On July 14, 2016, the trial court entered an order titled, "Motion and Order to Allow Access to Records and Comply with Psychological Evaluation." Mother was ordered to cooperate with Dr. Wilson in the evaluation and to sign all necessary releases so that Dr. Wilson could access her records. Mother was evaluated by Dr. Wilson over three days in September and October of 2016; however, Dr. Wilson testified that she was never provided Mother's VA records.

         Hearings were held on February 9, 2017 and May 24, 2017. Three DCS employees testified at the hearings: Seth Gilliam, Lynn Eggers-Bentley, and Jan Gardner. Mother, Father, [8] Sergeant Cowan, and Ronald C., Mother's character witness, also testified. DCS also submitted the depositional testimony of Dr. Wilson. The trial court did not credit Mother's testimony; however, the court placed "great weight" on the opinion of Dr. Wilson.

         Dr. Wilson testified that Mother's testing revealed she "appears to be rather emotionally unstable and may behave in negative, unpredictable, and aggressive ways." Dr. Wilson found that Mother exhibited hostility and mistrust towards authority figures, and she was unwilling to admit to the existence of her problems. Dr. Wilson's analysis indicated that Mother exhibited several symptoms associated with post-traumatic stress disorder (PTSD), paranoid personality disorder, borderline personality disorder, and narcissistic personality. Ultimately, Dr. Wilson opined that she was confident Mother's mental impairments rendered her unable to serve as the Children's caregiver.

         On June 28, 2017, the trial court entered an order terminating Mother's parental rights on the grounds of mental incompetence, abandonment by failure to establish a suitable home, and persistence of the conditions that led to the Children's removal. The trial court terminated Father's parental rights on the grounds of severe abuse and incarceration for child abuse with a sentence of two years or more. The trial court also concluded that there was clear and convincing evidence that termination of both parents' rights would be in the Children's best interest. Mother and Father timely appealed.

         Issues Presented

         Mother presents four issues for our review, which we have restated as follows:

1. Whether the trial court erred in terminating Mother's parental rights based upon the statutory ground of mental incompetence.
2. Whether the trial court erred in terminating Mother's parental rights based upon the statutory ground of persistence of conditions.
3. Whether the trial court erred in terminating Mother's parental rights based upon the statutory ground of abandonment by failure to establish a suitable home.
4. Whether the trial court erred in determining that termination of Mother's parental rights is in the best interest of the Children.
Father presents three issues for our review, which we have restated as follows:
1. Whether the trial court erred in terminating Father's parental rights based upon the statutory ground of severe child abuse.
2. Whether the trial court erred in terminating Father's parental rights based upon the statutory ground of imprisonment with a sentence of two years or more for abusive conduct against a child.
3. Whether the trial court erred in determining that clear and convincing evidence supports DCS's position that termination of Father's parental rights is in the best interest of the Children.

         Standard of Review in Termination Proceedings

         Both the Tennessee and United States Constitutions protect a parent's fundamental liberty interest in the care, custody, and control of his or her children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996); In re Navada N., 498 S.W.3d 579, 590 (Tenn. Ct. App. May 23, 2016) (citations omitted). However, a parent's rights are not absolute, and the State, as parens patriae, has the authority to interfere when a compelling interest exists to prevent serious harm to a child. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)).

         By setting forth specific grounds upon which termination proceedings may be initiated, our termination statutes identify the circumstances which indicate that the State's compelling interest in the welfare of a child may justify termination of a parent's constitutionally protected rights. In re Navada N., 498 S.W.3d at 590. Thus, when DCS seeks to terminate a biological parent's rights to his or her child, it must prove two things. In re Audrey S., 182 S.W.3d 838, 860 (Tenn. Ct. App. Nov. 7, 2005). First, DCS must prove the existence of at least one of the statutory grounds for termination. Tenn. Code Ann. § 36-1-113(c)(1); In re Audrey S., 182 S.W.3d at 860. Second, DCS must prove that termination of the biological parent's rights is in the child's best interest. Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182 S.W.3d at 860.

         "No civil action carries with it graver consequences than a petition to sever family ties irretrievably and forever." In re Audrey S., 182 S.W.3d at 860 (citation omitted). In light of these profound repercussions, Tennessee courts impose a heightened standard of proof-clear and convincing evidence-in the biological parent's favor. See Tenn. Code Ann. § 36-1-113(c)(1); In re Carrington H., 483 S.W.3d 507, 522 (Tenn. 2016). Both the grounds for termination and the best-interest conclusion must be established by clear and convincing evidence. See In re Carrington H., 483 S.W.3d at 523 ("The best interest analysis is separate from and subsequent to the determination that there is clear and convincing evidence of grounds for termination."); In re Navada N., 498 S.W.3d at 590. "These requirements ensure that each parent receives the constitutionally required 'individualized determination that a parent is either unfit or will cause substantial harm to his or her child before the fundamental right to the care and custody of the child can be taken away.'" In re Carrington H., 483 S.W.3d at 523 (quoting In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999)). 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." Id. (quoting In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 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.

         The heightened burden of proof in termination of parental rights cases also requires this Court to adapt the customary standard of review that we typically apply in an appeal from a bench trial. See Tenn. R. App. P. 13(d); In re Audrey S., 182 S.W.3d at 861. First, we must review the trial court's factual findings de novo on the record, presuming the trial court's factual findings to be correct. See Tenn. R. App. P. 13(d); In re Audrey S., 182 S.W.3d at 861. "Second, we must determine whether the facts either as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements required to terminate a biological parent's parental rights." See In re Audrey S., 182 S.W.3d at 861 (citations omitted).

         Because a trial court judge is able to observe the witnesses, their manner, and their demeanor when testifying, the trial judge is far better situated than we are to make credibility determinations. In re Navada N., 498 S.W.3d at 591 (citations omitted). Accordingly, when the resolution of an issue in a case depends upon the truthfulness of ...


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