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 Justin P.

Court of Criminal Appeals of Tennessee, Nashville

May 17, 2018

IN RE JUSTIN P., ET AL.

          Assigned on Briefs April 3, 2018

          Appeal from the Chancery Court for Moore County No. 136A J. B. Cox, Chancellor

         This is a termination of parental rights case. Appellant/Mother appeals the trial court's termination of her parental rights on the ground of: abandonment by willful failure to visit. Appellant also appeals the trial court's finding that termination of her parental rights is in the children's best interests. Because Appellee/Father thwarted Appellant's attempts to visit the children, we conclude that Appellees failed to meet their burden to show, by clear and convincing evidence, that Appellant abandoned the children. Accordingly, we reverse the order terminating Appellant's parental rights.

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

          Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, Kathryn P.

          Melissa L. Thomas, Fayetteville, Tennessee, for the appellees, Dennis P. and Rebecca P.

          Kenny Armstrong, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and W. Neal McBrayer, J., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Background

         Appellant Kathryn P. ("Mother") is the mother of J.L.P. (d/o/b August 1997), K.R.P. (d/o/b August 1998), D.C.P. (d/o/b/ October 2001), and M.J.P. (d/o/b September 2010) (together, the "Children").[1] Dennis P. ("Father") is the Children's father. Mother and Father were divorced on September 4, 2013. Father has since remarried to Rebecca P. (together with Dennis P., "Appellees").[2]

         In connection with their divorce, Mother and Father entered into a permanent parenting plan for the Children. In relevant part, the plan designates Father as the Children's primary residential parent and grants Mother 140 days per year of visitation. The plan also includes a "special provision, " stating that: "The parties will not consume alcohol and/or drugs in the presence of the minor children. If mother begins drinking or becomes abusive during residential sharing, the children may call the father to pick them up."

         On April 10, 2015, Appellees filed a motion to terminate Mother's parental rights on the ground of abandonment by willful failure to visit.[3] The petition stated that Mother last visited the Children "in the month of August of 2014." On May 1, 2015, Mother filed an answer, wherein she denied the material allegations of the petition. The trial court appointed a guardian ad litem by order of September 13, 2016. A hearing was held on March 27, 2017. The trial court set out its findings of fact in a memorandum opinion entered on April 17, 2017. On July 3, 2017, the trial court entered its order terminating Mother's parental rights on the sole ground of abandonment by willful failure to visit. We note that, by the date of the hearing in this case, the two older children, J.L.P. and K.R.P., had reached the age of majority. Accordingly, the trial court's order terminates Mother's parental rights only as to the younger children, D.C.P. and M.J.P. As such, Mother's parental rights vis-à-vis J.L.P. and K.R.P. are not the subject of this appeal. Mother appeals only the termination of her parental rights as to D.C.P. and M.J.P.

         II. Issues

Appellant raises two issues for review as stated in her brief:
1. Whether the Appellees proved by clear and convincing evidence that the Appellant failed to support, visit and/or abandoned the minor child for four (4) consecutive months preceding the filing of the termination petition as defined by Tenn. Code Ann. § 36-1-102(1)(A)(i).
2. Whether there is sufficient evidence to support the trial court's finding that termination of parental rights is in the best interest of the minor children.

         III. Standard of Review

         Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only when a compelling interest exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds for termination and that termination of parental rights is in the child's best interest must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that the truth of the facts asserted is highly probable ... and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004), perm. app. denied (Tenn. July 12, 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id. at 653.

         In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review in Tennessee Rule of Appellate Procedure 13(d). As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). 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. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

         IV. Abandonment by Willful Failure to Visit

         The trial court found, by clear and convincing evidence, that Mother's parental rights should be terminated on the ground of abandonment by willful failure to visit pursuant to Tennessee Code Annotated Section 36-1-113(g)(1) and Tennessee Code Annotated Section 36-1-102(1)(A)(i). In pertinent part, Tennessee Code Annotated Section 36-1-113(g) provides:

(g) Initiation of termination of parental or guardianship rights may be based upon any of the grounds listed in this subsection (g). The following grounds are cumulative and non-exclusive, so that listing conditions, acts or omissions in one ground does not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred . . .

Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated Section 36-1-102 defines "abandonment, " in relevant part, as follows:

(1)(A) 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 . . . have willfully failed to visit . . .

Tenn. Code Ann. § 36-1-102(1)(A)(i).

         The concept of "willfulness" is at the core of the statutory definition of abandonment. A parent cannot be found to have abandoned a child under Tennessee Code Annotated Section 36-1-102(1)(A)(i) unless the parent has either "willfully" failed to visit or "willfully" failed to support the child for a period of four consecutive months immediately preceding the filing of the petition to terminate his or her parental rights. In In re Audrey ...


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.