IN RE EMILY J. ET AL.
Session Date: March 15, 2018
from the Juvenile Court for Williamson County No.
35624-94JC1-2017-JT-2 Sharon Guffee, Judge
appeals the termination of her parental rights to two
children on the grounds of abandonment by failure to support
and persistence of conditions. Upon our review, we conclude
that the record contains clear and convincing evidence that
the conditions which led to the children's removal from
Mother's home persisted and that termination of her
rights is in the children's best interest; however, the
evidence of abandonment by failure to support is not clear
and convincing. Accordingly, we reverse the judgment in part
and affirm the termination of her rights.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Reversed in Part and Affirmed in Part
M. Jones, Franklin, Tennessee, for the appellant, Holly R.
C. Hood, Franklin, Tennessee, for the appellees, Lynn G.,
William G., and John J.
Richard H. Dinkins, J., delivered the opinion of the court,
in which Frank G. Clement, Jr., P.J., M.S., and Andy D.
Bennett, J., joined.
RICHARD H. DINKINS, JUDGE
Factual and Procedural History
children, Emily (born February 2005) and Tyler (born December
2006) are the subject of this termination case. The children
have lived with their paternal aunt and uncle, Lynn and
William G., since March 2016, when the children's mother,
Holly R., ("Mother") was involved in two automobile
accidents in Atlanta, Georgia, while under the influence of
heroin, methamphetamines, and marijuana; Mother was arrested
and convicted on multiple charges including possession of a
controlled substance and possession of marijuana. While
Mother remained in jail, the children's aunt and uncle
filed a petition seeking to have the children declared
dependent and neglected; the petition was heard on May 9,
2016. The juvenile court entered an order on July 13 reciting
that Mother and her attorney were present at the May 9
hearing and that Mother stipulated that the children were
dependent and neglected due to her drug use and positive drug
screen for multiple substances; the court ordered that that
the children remain in the legal custody of Lynn and William
March 16, 2017, Lynn and William G.,
("Petitioners") filed a petition to terminate
Mother's parental rights on the grounds of abandonment by
failure to support and persistence of conditions. The
children's biological father, John J.
("Father"), joined in the petition, seeking to
surrender his parental rights to the children. A hearing was
held over two days in August 2017, at which seven witnesses
testified: Ricky R., the maternal grandfather of the
children; Melissa R., Mother's stepmother; Mother; Dr.
Jay Woodman, a clinical psychologist and the children's
therapist; Cheyenne R., Mother's sister; Lynn G.; and
William G. At the time of the hearing, Mother was
incarcerated, and had been since July 10 on a charge of
order entered September 5, the trial court: terminated
Mother's rights on the grounds of abandonment for failure
to pay child support and persistence of conditions and upon
its finding that termination was in the children's best
interest; confirmed Father's surrender of his parental
rights and terminated those rights; and appointed the aunt
and uncle as the guardians and legal and physical custodians
of the children. Mother appeals the termination of her
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).
Abandonment by Failure to Support
is identified as a ground for termination in Tennessee Code
Annotated section 36-1-116(g)(1) and defined in section
36-1-102(1)(A), which reads in pertinent part:
For purposes of terminating the parental or guardian rights
of a parent or parents or a guardian or guardians of a child
to that child in order to make that child available for
adoption, "abandonment" means that:
(i) 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[.]
Tenn. Code Ann. § 36-1-102(1)(A). "All parents have
a duty to support their children." In re
M.J.B., 140 S.W.3d 643, 655 (Tenn. Ct. App. 2004);
see also Tenn. Code Ann. § 34-1-102. A failure
to support is "'willful' when a person is aware
of his or her duty to visit or support, has the capacity to
do so, makes no attempt to do so, and has no justifiable
excuse for not doing so." In re Audrey S., 182
S.W.3d 838, 864 (Tenn. Ct. App. 2005).
trial court made factual findings relative to this ground,
concluding that Mother knew of her obligation to support,
that her "failure to pay child support is willful, that
[her] conduct consists of intentional or voluntary acts or
failure to act . . . that [she] had the capacity to do so . .
. made no attempt to do so and had no justifiable excuse for
not doing so." Mother contends that the court erred in
finding that clear and convincing evidence existed to sustain
this ground for termination.
petition for termination was filed on March 16, 2017;
accordingly, the court correctly determined that the relevant
time period was November 15, 2016 through March 15, 2017.
With respect to whether Mother was aware of her duty to pay
support, the court held:
Mother initially testified on August 9, 2017 that she knew of
her obligation to support her children. There was not an
order for support, but she was given a notice of child
support and a worksheet by counsel for Petitioners. She also
testified that ...