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In re Neamiah R.

Court of Appeals of Tennessee, Knoxville

May 23, 2018

In re NEAMIAH R. et al.

          Session February 22, 2018

          Appeal from the Juvenile Court for Knox County No. 162925 Timothy E. Irwin, Judge

         In this action, the trial court terminated the respondent father's parental rights to his children, following its finding that clear and convincing evidence existed to establish the statutory grounds of (1) severe child abuse, (2) substantial noncompliance with the reasonable requirements of a permanency plan, and (3) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the children. The court also determined by clear and convincing evidence that termination was in the best interest of the children. The father has appealed solely the best interest determination. Discerning no error regarding the statutory grounds for termination found by the trial court or the court's best interest analysis, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed; Case Remanded

          Matthew A. Robinson, Knoxville, Tennessee, for the appellant, Earl R. [1]

          Herbert H. Slatery, III, Attorney General and Reporter, and Peako A. Jenkins, Assistant Attorney General, for the appellee, State of Tennessee Department of Children's Services.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and John W. McClarty, JJ., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         On June 5, 2017, the Tennessee Department of Children's Services ("DCS") filed a petition seeking to terminate the parental rights of Earl R. ("Father") to his three children: Neamiah, age five years; Major, age three years; and Mal'akhi, age nineteen months (collectively, "the Children"). DCS sought to terminate the parental rights of the Children's mother, Jennifer F. ("Mother"), via a separate proceeding. In the June 5, 2017 petition concerning Father's parental rights, DCS averred that it had been awarded temporary custody of the Children on August 2, 2016, following the Children's removal from their parents' custody due to nutritional and medical neglect, domestic violence, substance abuse, lack of supervision, inappropriate care, and failure to abide by safe sleep protocols. Specifically, DCS asserted that Mal'akhi had been hospitalized on May 26, 2016, after being diagnosed with severe failure to thrive. DCS further averred in the petition that on the day the Children were taken into custody, Mal'akhi was found alone on a bed in Mother's apartment while Mother visited with a neighbor and Neamiah and Major played outside unsupervised. Mother failed a drug screen administered on that day. Father appeared at the apartment while Mother was being interviewed and was arrested for domestic assault based on Mother's allegation that Father had hit her.

         In the termination petition, DCS alleged that following a dependency and neglect hearing conducted on February 14, 2017, the trial court entered an order determining that Mal'akhi was the victim of severe abuse at the hands of both parents. DCS cited Father's testimony at the prior hearing, wherein Father reportedly stated that he was aware that Mal'akhi was underweight but that he nonetheless trusted Mother to take care of Mal'akhi. Father allegedly admitted that he failed to follow up on Mother's compliance with medical recommendations for Mal'akhi and that he "probably should have done more." Father reportedly acknowledged that he participated in the care of the Children but stated that he did not attend Mal'akhi's medical appointments.

         DCS also alleged in its termination petition that Father had failed to substantially comply with the reasonable responsibilities set out in his permanency plan. According to DCS, a permanency plan had been developed on August 24, 2016, with Father's participation, which required that Father: (1) complete an alcohol and drug assessment and follow any resultant recommendations; (2) refrain from associating with drug users or dealers; (3) pass random drug screens; (4) address domestic violence in therapy or classes; (5) obtain and maintain safe, suitable housing; (6) complete parenting education through therapeutic visitation and follow the therapist's recommendations; and (7) complete a mental health assessment and follow resultant recommendations. Father was also required to visit the Children regularly, maintain a legal source of income, pay child support, avoid criminal charges, and maintain contact with the DCS case manager.

         With regard to these requirements, DCS acknowledged in the petition that Father had visited the Children, albeit not consistently, and had completed both substance abuse and mental health assessments. DCS asserted, however, that Father had failed to follow through with other requirements, including the recommendations from his assessments, and that he had recently tested positive for cocaine use.

         DCS further alleged in the petition that Father had failed to "manifest, by act or omission, an ability and willingness to personally assume legal and physical custody or financial responsibility of the children, and placing the children in [Father's] legal and physical custody would pose a risk of substantial harm to the physical and psychological welfare of the children." See Tenn. Code Ann. § 36-1-113(g)(14).

         Following a bench trial conducted on October 5, 2017, the trial court entered an order terminating Father's parental rights to the Children on October 18, 2017. In its order, the court noted that it had previously entered an order determining that Mal'akhi had suffered severe abuse at the hands of both parents, following Mal'akhi's diagnosis of severe failure to thrive while in the parents' custody. The child's condition necessitated hospitalization. The court also stated that Father had testified during the dependency and neglect hearing that he was aware of Mal'akhi's low weight and that he should have done more to address the issue. The court further relied upon the testimony of Dr. Marymer Perales, an expert witness in the fields of pediatric emergency medicine and child abuse, who testified at the dependency and neglect hearing regarding failure-to-thrive infants. According to the court, Dr. Perales explained that malnutrition in infants carries many risks, including frequent illness, delayed brain growth, learning disabilities, and other mental health and cognitive issues. Dr. Perales also opined that improper monitoring of children who failed to thrive could ultimately result in death.

         Based on these and other facts, the trial court determined that Father had committed severe child abuse against Mal'akhi. In addition, the court found that (1) Father had failed to substantially comply with the reasonable responsibilities of his permanency plan and (2) Father had failed to manifest, by act or omission, an ability and willingness to personally assume legal and physical custody or financial responsibility of the children, and placing the children in Father's legal and physical custody would pose a risk of substantial harm to their physical and psychological welfare. As the court elucidated:

This case is remarkably simple. The severe abuse adjudication against [Father] is final and unappealed. [Father] completed the assessments required by the permanency plan but then did not follow any of the recommendations. He came to some visits but not regularly and missed half of the therapeutic visits provided to increase his parenting skills. He did not participate in any domestic violence treatment and attacked another woman after the children entered foster care, resulting in his current incarceration. He had the opportunity to participate in those programs that could have put him on the road to recovery, but he did not cooperate. The Court liked his closing speech and liked his attitude. The Court believes that [Father] would like to change, but there is no evidence so far to that effect. The Court wished he had made those changes when it counted. The Court also wished he had not subjected his child to severe abuse and the risk of serious bodily injury or death.

         With regard to best interest, the trial court analyzed the applicable statutory factors and made specific findings regarding the Children's best interest. After considering the factors and circumstances, the court determined by clear and convincing evidence that it was in the best interest of the Children to terminate Father's parental rights. Father timely appealed.

         II. Issue Presented

         Father presents one issue for our review, which we have restated slightly:

Whether the trial court erred by determining that it was in the Children's best interest to terminate Father's parental rights.

         III. Standard of Review

         In a termination of parental rights case, this Court has a duty to determine "whether the trial court's findings, made under a clear and convincing standard, are supported by a preponderance of the evidence." In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial court's findings of fact are reviewed de novo upon the record, accompanied by a presumption of correctness unless the evidence preponderates against those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are reviewed de novo with no presumption of correctness. See In re Carrington H., 483 S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 393 (Tenn. 2009)). The trial court's determinations regarding witness credibility are entitled to great weight on appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

         "Parents have a fundamental constitutional interest in the care and custody of their children under both the United States and Tennessee constitutions." Keisling v. Keisling, 92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that "this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our Supreme Court has recently explained:

The parental rights at stake are "far more precious than any property right." Santosky, 455 U.S. at 758-59. Termination of parental rights has the legal effect of reducing the parent to the role of a complete stranger and of ["]severing forever all legal rights and obligations of the parent or guardian of the child." Tenn. Code Ann. § 36-1-113(1)(1); see also Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental rights is "final and irrevocable"). In light of the interests and consequences at stake, parents are constitutionally entitled to "fundamentally fair procedures" in termination proceedings. Santosky, 455 U.S. at 754; see also Lassiter v. Dep't of Soc. Servs. of Durham Cnty, N.C. , 452 U.S. 18, 27 (1981) (discussing the due process right of parents to fundamentally fair procedures).
Among the constitutionally mandated "fundamentally fair procedures" is a heightened standard of proof-clear and convincing evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of unnecessary or erroneous governmental interference with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). "Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings." In re Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and-convincing-evidence standard ensures that the facts are established as highly probable, rather than as simply more probable than not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
In light of the heightened burden of proof in termination proceedings, however, the reviewing court must make its own determination as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights. In re Bernard T., 319 S.W.3d at 596-97.

In re Carrington H., 483 S.W.3d at 522-24. "[P]ersons seeking to terminate [parental] rights must prove all the elements of their case by clear and convincing evidence, " including statutory grounds and the best interest of the child. See In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).

         IV. Statutory Grounds for Termination of Father's Parental Rights

         Tennessee Code Annotated § 36-1-113 (2017) lists the statutory requirements for termination of parental ...


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