January 10, 2018
from the Chancery Court for Rutherford County No. 16CV-1300
Howard W. Wilson, Chancellor
mother's parental rights were terminated on the ground of
abandonment by willfully failing to visit her daughter.
Mother appeals, arguing that the petition initiating the
proceeding did not include the notice required by Rule 9A of
the Tennessee Rules of Civil Procedure; that the record did
not contain clear and convincing evidence that she abandoned
her child; and that termination was not in the child's
best interest. Upon our review, we conclude that the proof
does not clearly and convincingly establish the ground of
abandonment by failure to visit. We reverse the judgment of
the trial court and dismiss the petition.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Stephen Aymett, Jr., Murfreesboro, Tennessee, for the
appellant, Joy S.
A. White, Murfreesboro, Tennessee, for the appellees,
Jennifer and Michael A.
Broom Pollina, Murfreesboro, Tennessee, Guardian ad litem
Christopher H., Rome, Georgia, Pro Se
Richard H. Dinkins, J., delivered the opinion of the court,
in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.
RICHARD H. DINKINS, JUDGE.
Factual and Procedural Background
an appeal from an order terminating the parental rights of
Joy S. ("Mother") to her daughter, Emma S. Mother
and Christopher H. ("Father") are the biological
parents of Emma S., born in December 2012; at the time of her
birth, Mother and Father resided in Ellijay,
Georgia. Emma resided with both parents until
August of 2013, when Mother was incarcerated for a probation
violation; Emma continued to reside with Father. In June
2014, Father asked his cousin Jennifer A., who lives in
Murfreesboro, Tennessee, to care for Emma while he sought
treatment for a drug addiction; Jennifer A. and her husband
Michael (collectively, "Petitioners") agreed to do
so and brought Emma to live with them on July 29, 2014.
filed a petition for temporary custody of Emma in the
Rutherford County Juvenile Court in December 2014 to allow
them to add Emma to their health insurance; Petitioners
received custody of her by order entered in March 2015. On
July 28 of that year Petitioners initiated a proceeding to
have Emma declared dependent and neglected. After having been
released from jail in August 2015, Mother was incarcerated
again in late January 2016 for failing to report to
probation, for giving a police officer the wrong name, and
for failing a drug test. On March 12, 2016, Emma was
adjudicated dependent and neglected, and Petitioners were
granted full legal custody of her. On August 29, 2016,
Petitioners filed a petition to terminate the parental rights
of Mother and Father to Emma and for adoption, alleging
abandonment by failing to visit and support her and by wanton
disregard for her welfare, substantial non-compliance with
the permanency plan, and persistence of conditions as grounds
who was still incarcerated at the time the petition was
filed, and Father both filed pro se answers to the
petition; the trial court found Mother to be indigent and
appointed counsel for her. The court also appointed a
Guardian ad Litem. A trial was held on May 3, 2017,
at which four witnesses testified on behalf of Petitioners.
Mother was incarcerated in Georgia at the time of the trial,
and her deposition was introduced into evidence. Father did
not appear at trial in person or through counsel.
order entered May 22, 2017, the trial court terminated
Mother's and Father's rights on the grounds of
abandonment by failure to visit; the court deemed the proof
as to all other grounds for termination to be insufficient.
The court also examined the best interest factors at
Tennessee Code Annotated section 36-6-113(i) and determined
that termination of Mother and Father's rights was in
Emma's best interest. Mother appeals, stating the
following issues for our review:
I. Whether or not Appellant's failure to personally sign
the Notice of Appeal deprives the Court of jurisdiction and
the appeal should be dismissed.
II. Whether or not the termination of Mother's parental
rights should be reversed because Petitioner's Petition
fails to comply with the requirement of Rule 9A of the
Tennessee Rules of Civil Procedure that it contain language
advising Mother of the expedited appeal provisions of Rule 8A
of the Tennessee Rules of Appellate Procedure.
III. Whether or not the record supports the trial court's
finding that clear and convincing evidence existed that
Mother abandoned Emma by willfully failing to visit her in
the four months preceding the filing of Petitioner's
IV. Whether or not the record supports the trial court's
finding that clear and convincing evidence existed that
termination of Mother's parental rights was in the best
interest of Emma.
Standard of Review
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 under 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).
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 this regard, clear and convincing
evidence is "evidence in which there is no serious or
substantial doubt about the correctness of the conclusions
drawn from the evidence" and which "produces a firm
belief or conviction in the fact-finder's mind regarding
the truth of the facts sought to be established." In
re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014)
(internal citations omitted).
Notice of Appeal
moved to dismiss the appeal on the basis that Mother failed
to personally sign the notice of appeal, as required by
Tennessee Code Annotated section 36-1-124(d). While the
appeal was pending, our Supreme Court decided In re
Bentley D., holding that the statute does not require a
notice of appeal to be signed personally by the appellant and
that the timely notice of appeal signed by the attorney of
the parent whose rights were terminated satisfies the
signature requirement. In re Bentley D., 537 S.W.3d
907, 909 (Tenn. 2017). At oral argument, Mother's counsel
conceded that the Supreme Court decision has rendered this
Rule 9A Notice
argues that the petition to terminate her rights is deficient
because it fails to comply with Rule 9A of the Tennessee
Rules of Civil Procedure, which states:
In addition to meeting all other applicable rules governing
the filing of pleadings, any complaint or petition seeking a
termination of parental rights shall contain the following
notice: "Any appeal of the trial court's final
disposition of the complaint or petition for termination of
parental rights will be governed by the provisions of Rule
8A, Tennessee Rules of Appellate Procedure, which imposes
special time limitations for the filing of a transcript or
statement of the evidence, the completion and transmission of
the record on appeal, and the filing of briefs in the
appellate court, as well as other special provisions for
expediting the appeal. All parties must review Rule 8A, Tenn.
R. App. P., for information concerning the special provisions
that apply to any appeal of this case."
petition to terminate Mother's rights does not contain
this notice, and has not been amended to include the language
in the Rule.
argues the petition is defective and "caused Mother to
be uninformed from the outset, which defeats the purpose of
the rule, " that this "omission and error by
Petitioners was harmful and prejudicial, " and that
therefore, her rights should not have been terminated.
Although not raised as matters of concern in her brief in
chief, in her reply brief, Mother asserts that the petition
also fails to comply with Tennessee Code Annotated sections
36-1-113 and 36-6-224 by failing to include the present
address of Emma and the Petitioners, the addresses of the
persons whom Emma had lived with prior to living with the
Petitioners, the case number of the prior proceeding
concerning the custody of Emma, and a statement of whether
Petitioners knew of any proceeding that could affect the
current proceeding before the court. While acknowledging that
the notice was not included in the petition, Petitioners
respond that the petition otherwise complies with the
pertinent statutes and rules, that Mother has not shown that
she was prejudiced by the omission, and, therefore, the error
should be considered harmless.
and Petitioners each rely on In re Natalie R.C., No.
E2011-01185-COA-R3-PT, 2011 WL 4924170 (Tenn. Ct. App. Oct.
18, 2011), in support of their positions. In that case, a
father appealed the termination of his parental rights
asserting, among other issues, that the trial court erred in
not dismissing the petition due to what the father contended
were fatal defects in the petition, viz., failure to
include the Rule 9A notice, failure to comply with Tennessee
Code Annotated section 36-1-113(d)(3)(A)(i) and
(C), and section 36-6-224. The trial
court held that the affirmative defenses raised by the father
were without merit, proceeded to address the merits of the
petition, and terminated the father's rights. On appeal,
this court rejected the petitioning grandmother's
argument that the petition "sufficiently complied with
all relevant rules and statutes" and could be excused.
Id. at *4-5. We held that the omissions were
"deficiencies which, taken together, render the petition
defective, " but did not agree with the father that
"the defects [were] fatal and require[d] the petition to
be dismissed." Id. at 5. Noting that the
defects could be cured, we vacated the decision and remanded
the case to afford the petitioner the opportunity to do so.
recent case of In re Bentley D., No.
E2016-02299-COA-R3-PT, 2018 WL 1410903, (Tenn. Ct. App. Mar.
21, 2018), wherein a father appealed the termination of his
parental rights, presented similar facts and legal issues to
the case at bar. In that case, the trial court held that the
petition's failure to include the information required by
Tennessee Code Annotated section 36-1-113(d)(3)(A)(i) and
sections 36-1-113(d)(3)(C)(ii) and (iii) did not make the
defects fatal; on motion, the court allowed the petition to
be amended to correct the defects. Id. at *1. On
appeal, we rejected the father's argument, based on
In re Natalie R.C., that the petition should have
been dismissed, holding:
In In re Natalie R.C., the termination petition had
multiple defects, the omission of the Tenn. R. Civ. P. 9A
notice being one of them. The appellate court found that all
of the deficiencies together made the petition defective, but
also noted that "[p]erhaps any one of the deficiencies
alone might have constituted harmless error." Moreover,
the appellate court determined that the appropriate remedy
was not dismissal. Rather, it held that "[t]hese defects
are such that they can be corrected by [petitioner] and her
current attorney if given the ...