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In re Emma S.

Court of Appeals of Tennessee, Nashville

April 30, 2018

IN RE EMMA S.[1]

         Session: January 10, 2018

          Appeal from the Chancery Court for Rutherford County No. 16CV-1300 Howard W. Wilson, Chancellor

         A 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed

          J. Stephen Aymett, Jr., Murfreesboro, Tennessee, for the appellant, Joy S.

          Nathan A. White, Murfreesboro, Tennessee, for the appellees, Jennifer and Michael A.

          Amy 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.

          OPINION

          RICHARD H. DINKINS, JUDGE.

         I. Factual and Procedural Background[2]

         This is 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.[3] 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.

         Petitioners 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 for termination.

         Mother, 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.

         By 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 Petition.
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.

         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 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).

         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 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).

         III. Analysis

         A. Notice of Appeal

         Petitioners 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 issue moot.

         B. Rule 9A Notice

         Mother 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."

         The petition to terminate Mother's rights does not contain this notice, and has not been amended to include the language in the Rule.

         Mother 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.

         Mother 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)[4] and (C)[5], and section 36-6-224.[6] 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. Id.

         The 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)[7] 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 ...

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