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In re Emily J.

Court of Appeals of Tennessee, Nashville

May 9, 2018

IN RE EMILY J. ET AL.[1]

          Session Date: March 15, 2018

          Appeal from the Juvenile Court for Williamson County No. 35624-94JC1-2017-JT-2 Sharon Guffee, Judge

         Mother 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.

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

          David M. Jones, Franklin, Tennessee, for the appellant, Holly R.

          Deana 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.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural History

         Two 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 G.

         On 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 aggravated robbery.[2]

         By 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 rights.

         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. 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 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).

         The 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.

         The 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 ...

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