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 Kah'Nyia J.

Court of Appeals of Tennessee, Nashville

April 30, 2018

IN RE KAH'NYIA J., ET AL.[1]

          Session: January 10, 2018

          Appeal from the Circuit Court for Robertson County No. 74CCI-2015-CV-617 Ross H. Hicks, Judge

         A Mother and Father appeal the termination of their parental rights to their son on the grounds of abandonment by failure to support, substantial noncompliance with a permanency plan, and persistence of conditions. Father also appeals the termination of his rights on the ground of failure to provide prenatal support, and Mother also appeals the termination of her rights to her daughter on the grounds of abandonment by failure to support, substantial noncompliance with a permanency plan, and persistence of conditions. Upon a thorough review of the record, we reverse the termination of both parents' rights on the ground of persistence of conditions, and the Father's rights on the ground of failure to provide prenatal support; we affirm the trial court in all other respects.

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

          H. Garth Click, Springfield, Tennessee, for the appellant, Darroll L.

          Ami L. Brooks, Springfield, Tennessee, for the appellant, Rhonda J. L.

          John E. Evans, Springfield, Tennessee, for the appellees, Brett K. and Tisha K.

          Susan R. Mader, Nashville, Tennessee, as the Guardian ad Litem.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE.

         I. Factual and Procedural History

         Rhonda L. ("Mother") is the biological mother of Kah'nyia J., born in October 2011. On September 13, 2013, Mother was arrested and charged with the sale of drugs in a school zone;[2] at the time she was arrested she gave Ashley S. her friend and neighbor (herein "Ms. S."), what has been characterized as a "power of attorney" for Kah'nyia so that Ms. S could care for Kah'nyia while Mother was incarcerated.

         Mother gave birth to Darroll L., Jr. ("Darroll Jr."), in January 2014, while she was incarcerated; Ms. S also took Darroll Jr. into her home, although the manner in which this happened is not clear in the record. Darroll L. ("Father") is the biological father of Darroll Jr.; although the record is not clear, it appears that Father was arrested at or about the same time as Mother on the same charge and was also incarcerated on the date Darroll Jr. was born.

         On March 11, 2014, the Tennessee Department of Children Services ("DCS") received a report that Ms. S. was physically abusing the children. On March 12, a representative or representatives of an organization known as Jonah's Journey came to the jail, and Mother executed a document, also characterized in the record as a power of attorney, agreeing to place Kah'nyia and Darroll Jr. with Brett and Tisha K. ("Petitioners").[3] At some point DCS filed an Emergency Petition in Davidson County Juvenile Court to have the children declared dependent and neglected, and Petitioners entered into an immediate protection agreement with DCS, resulting in the children being placed in Petitioners' physical custody on March 13, where they have remained.[4] At a hearing on May 19, the court granted temporary legal custody of the children to Petitioners. On September 2, Petitioners filed an intervening petition in the dependent and neglect proceeding. On October 3, 2014, a child and family team meeting was held, and a permanency plan was developed (the "permanency plan"), setting out Mother and Father's responsibilities and the tasks they needed to complete during and after incarceration to regain custody of the children.

         A hearing was held in the dependent and neglect proceeding on December 9, 2014, and the court entered an order on December 18 (the "December 18 Order"), stating in part:

         Upon agreement of the parties in open court and the record the Court made the following findings of fact:

1. Kah'nyia J[.] and Darroll L[.], (hereafter the "Minor Children"), were originally placed in the home of the Intervening Petitioners on March 13, 2014 pursuant to an immediate protection agreement from the Department of Children's Services after their investigation regarding physical abuse.
2. On May 19, 2014, this Court granted temporary custody to the Intervening Petitioners based on agreement reached by the parties and a positive report by the Department concerning the Intervening Petitioners.
3.On September 2, 2014, the Intervening Petitioners filed their intervening petition.
4. Since having custody, the Intervening Petitioners have taken care of all medical and health needs Darroll [ ], Jr. He currently is in the eighty-fifth (85th) percentile for his weight, is able to pull himself up, and his fractures are healing. Also, Kah'nyia is participating in speech therapy and preschool.
5. The Mother has an extensive criminal history including convictions for robbery, driving on suspended license, use of stolen plate, facilitation of sale of drugs, etc. She is currently incarcerated on a violation of probation charge. On August 29, 2014 the Mother pled guilty to the sale of a controlled substance and received a three (3) year sentence. The Mother stated she expected to be released from prison within a few days within December 2014.
6. The Father has an extensive criminal record including convictions for criminal trespass, drug possession with intent to sell cocaine, sale of cocaine, drug free school zone, unlawful use of drug paraphernalia, theft of merchandise, theft of vehicle, criminal impersonation, kidnapping risk of bodily injury, burglary. The Father remains incarcerated, but stated he expected his release date to be sometime in December 2015.
7. Neither parent has stable housing or stable employment.
8. The Minor Children have a strong bond with the Intervening Petitioners due to the Intervening Petitioners being the primary caregivers.
9. On October 3, 2014 a child and family team meeting was held and a noncustodial permanency plan developed to provide guidance on services and actions steps the Mother and Father need to complete before regaining custody of the Minor Children.
10. The Intervening Petitioners have cooperated with the Court and the Department of Children's Services. They continue to facilitate agreed upon visitation with the Minor Children and the Father and Mother.
11. It is the desire of the Intervening Petitioners to be granted full legal custody of the Minor Children. The Intervening Petitioners have been married for eight (8) years. They both have full-time stable jobs ..... They have a spacious . . . home that provides the Minor Children with their own space. The Intervening Petitioners are active [church] members . . . and have no criminal history. The Intervening Petitioners have a strong family support group that can assist with the Minor Children. Therefore, the Intervening Petitioners are fit and able to provide to permanency for the Minor Children.

         Based on these findings, the court: (1) adjudicated the children to be dependent and neglected, (2) ordered that Petitioners retain custody of the children, (3) incorporated the Permanency plan, and (4) ruled that Mother would have until September 2, 2015, and Father would have until September 2, 2016 "to work services and action steps outlined in the non-custodial permanency plan to regain custody" of their respective children.

         Mother was released from prison on July 29, 2015, and Father was released on August 13, 2015; on August 24, Mother filed a pro se motion in Davidson County Juvenile Court, requesting full custody of the children. A hearing on the motion was continued several times; on December 14, before Mother's motion was heard, Petitioners filed the petition to terminate the parental rights of Mother and Father in Robertson County Circuit Court that is at issue in this appeal, and the juvenile court stayed the dependent and neglect proceeding.

         As grounds for termination of both parents' rights, the petition alleged abandonment by failure to provide support or visit the children, substantial noncompliance with the permanency plan, and persistence of conditions; in addition the petition alleged failure to provide prenatal support as a ground for termination of Father's rights to Darroll Jr.[5] Mother and Father both filed pro se answers; in due course, the trial court found them to be indigent, appointed counsel for each, and amended answers were filed on behalf of both. The court also appointed a Guardian ad Litem.

         The case proceeded to trial, and the court entered an order on March 7, 2017, terminating Mother's and Father's rights to both children on the grounds of abandonment by failure to support (Tenn. Code Ann. § 36-1-113(g)(1)), substantial noncompliance with the permanency plan (Tenn. Code Ann. § 36-1-113(g)(2)), and persistence of conditions (Tenn. Code Ann. § 36-1-113(g)(3)); further, the court terminated Father's rights to Darroll Jr. on the ground of failure to provide prenatal support (Tenn. Code Ann. § 36-1-113(g)(9)). The court also found that termination of Mother's and Father's rights was in the children's best interest.

         Mother and Father appeal; each contends that neither the grounds for termination found by the court nor the finding that termination of their rights is in the children's best interest is supported by clear and convincing evidence.

         II. Standard of Review

         Parents have a fundamental right to the care, custody, and control of their children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep't of Children's Services v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on termination of parental rights provide the only authority for a court to terminate a parent's rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one ground need be proved, so long as it is proved by clear and convincing evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

         Because the decision to terminate parental rights affects fundamental constitutional rights and carries grave consequences, courts must apply a higher standard of proof when adjudicating termination cases. Santosky, 455 U.S. at 766-69. A court may terminate a person's parental rights only if (1) the existence of at least one statutory ground is proved by clear and convincing evidence and (2) it is shown, also by clear and convincing evidence that termination of the parent's rights is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of proof in these cases, a reviewing court must adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must then determine whether the facts, "as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements" necessary to terminate parental rights. Id.

         In the Memorandum Opinion and Order, the court made credibility findings as to Mother and Father and Petitioners. As noted in Kelly v. Kelly, deference to a trial court's determination of witness credibility is substantial, and our review of those determinations is substantially limited:

When it comes to live, in-court witnesses, appellate courts should afford trial courts considerable deference when reviewing issues that hinge on the witnesses' credibility because trial courts are uniquely positioned to observe the demeanor and conduct of witnesses. Appellate courts will not re-evaluate a trial judge's assessment of witness credibility absent clear and convincing evidence to the contrary. In order for evidence to be clear and convincing, it must eliminate any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. Whether the evidence is clear and convincing is a question of law that appellate courts review de novo without a presumption of correctness.

445 S.W.3d 685, 692-93 (Tenn. 2014) (citations omitted).

         III. Analysis

         A. Abandonment by Failure to Support

         Abandonment is identified as a ground for termination in Tennessee Code Annotated section 36-1-116(g)(1) and defined at section 36-1-102(1)(A), which reads in pertinent part:

For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent or parents or the guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, that the parent or parents or the guardian or guardians either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child[.]

         The court made the following findings relative to the ground of abandonment by failure to support:

i. The Mother and Father never paid any financial support in August-December 2015, which were the four (4) months preceding the filing of the petition.
ii. Tenn. Code. Ann. § 36-1-102(1)(H) states "Every parent who is eighteen (18) years of age or older is presumed to have knowledge of a parent's legal obligation to support such parent's child or children."
iii. The Father testified he was already paying child support on a previous child, so he had direct knowledge of his responsibility to pay child support for any child. Neither the Mother nor the Father presented any testimony or evidence that they did not know they needed to pay child support.
iv. The Mother and Father both testified that they had no issues obtaining employment. Also, they testified they had no physical ailment or disability that prevented them from working and earning money. Although, their work history appears to be unstable by the number of jobs they held in a short amount of time, it is clear to the Court that the Mother and Father had no trouble finding work and there was no reason they could not provide financial support to their children. The parents testified that they were working and saving money not only for obtaining lodging, but also to get necessary furnishings, clothing, incidentals and an automobile to reestablish themselves. While it is understandable that these things were indeed necessary for them to reestablish themselves, they nonetheless chose not to devote any of their financial resources to the support of the children. It is clear the Mother and Father willfully chose not to support their Minor Children despite the ability to do so.
v. The Mother and Father admitted they paid no child support during this time period. They stated they offered, but were told by the Petitioners no money was needed.
vi. The Petitioners testified that the testimony of the Mother and Father was not truthful. The Petitioners testified that Father and Mother never offered to pay any financial support for the Minor Children. The Mother and Father's testimony was contradicted on many issues, including this issue, and the Court finds Petitioners testimony on this issue to be more credible than that of Mother and Father.

         On the basis of these findings, the trial court ruled that Mother and Father:

[A]bandoned the Minor Child as defined in Tenn. Code Ann. § 36-1-102(1)(A) as they have never been a source of financial, physical, or emotional support for the Minor Children. For a period of four (4) consecutive months immediately preceding the filing of the original petition, as well as immediately preceding the filing of the amended petition, the Respondents willfully failed to provide monetary support of any kind for the Minor Children.

         Mother and Father argue that the court erred in finding that their failure to pay support was willful and that their attempts to provide support were rejected by Petitioners.

         A failure to provide support is not sufficient, on its own, to establish abandonment; that failure to support must be willful. A failure to support is "'willful' when a person [1] is aware of his or her duty to visit or support, [2] has the capacity to do so, [3] makes no attempt to do so, and [4] has no justifiable excuse for not doing so." In re Audrey, 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005) (footnote omitted). Further, this court has recognized:

Willfulness of a parent's conduct depends on the parent's intent, and intent is seldom capable of direct proof. In re Audrey S., 182 S.W.3d at 864 (citing In re Adoption of S.M.F., No. M2004-00876-COA-R9-PT, 2004 WL 2804892, at *8 (Tenn. Ct. App. Dec. 6, 2004)). Triers-of-fact lack the ability to peer into a person's mind to assess intentions or motivations and must infer intent from circumstantial evidence, including the parent's actions or conduct. Id. Because testimony may be critical to the determination of whether a parent's conduct was willful, trial courts are best situated to make a determination of willfulness. In re D.L.B., 118 S.W.3d at 367. The question of intent or willfulness depends on the totality of the circumstances, and the facts must be applied to the standard definition of willfulness. V.D. v. N.M.B., No. M2003-00186-COA-R3-CV, 2004 WL 1732323, at *6 (Tenn. Ct. App. July 26, 2004).

In re Alysia S., 460 S.W.3d 536, 566 (Tenn. Ct. App. 2014).

         1. Awareness of Duty

         With respect to this element, Mother argues that her failure to pay support was not willful because "[t]here was no Court Order for child support." Contrary to Mother's argument, the law is clear that "[t]he obligation to pay support exists even in the absence of a court order to do so." State Dep't of Children's Servs. v. Culbertson, 152 S.W.3d 513, 523-24 (Tenn. Ct. App. 2004) (citations omitted). Moreover, '[a]ll parents have a duty to support their children, " In re M.J.B., 140 S.W.3d 643, 655 (Tenn. Ct. App. 2004), and "[e]very parent . . . is presumed to have knowledge of a parent's legal obligation to support such parent's child or children." Tenn. Code. Ann. § 36-1-102(1)(H).

         Accordingly, Mother is deemed to be aware of that obligation.

         The trial court found that Father was making child support payments for his other children, which made him aware of his responsibility to pay support. This holding is supported by Father's testimony that he is paying "just under $800 a month" in child support for two other children.

         2. Capacity to Pay

         The trial court made the following findings relative to Mother's and Father's capacity to support the children:

iv. The Mother and Father both testified that they had no issues obtaining employment. Also, they testified they had no physical ailment or disability that prevented them from working and earning money. Although their work history appears to be unstable by the number of jobs they held in a short amount of time, it is clear to the Court that the Mother and Father had no trouble finding work and there was no reason they could not provide financial support to their children. The parents testified that they were working and saving money not only for obtaining lodging, but also to get necessary furnishings, clothing, incidentals and an automobile to reestablish themselves. While it is understandable that these things were indeed necessary for them to reestablish themselves, they nonetheless chose not to devote any of their financial resources to the support of the children. It is clear the Mother and Father willfully chose not to support their Minor Children despite the ability to do so.

         In their briefs, neither Mother nor Father cites evidence which they contend preponderates against the finding; rather they challenge the sufficiency of the evidence to support the ground. Upon our review, the testimony supports the findings. The evidence shows that Mother and Father were employed for the majority of the pertinent time period and were receiving income and, therefore, had funds with which to support the children.[6] In addition, in the court's specific credibility findings, the court noted that, contrary to Mother's testimony, she received food stamp benefits for Kah'niya during the period July through December 2015, even though she did not have custody of her; Mother does not dispute this finding.

         3.Attempt ...


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.