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In re D.T.

Court of Appeals of Tennessee, Knoxville

May 24, 2018

In re D.T. et al.

          Session February 21, 2018

          Appeal from the Chancery Court for Loudon County No. 12338 Frank V. Williams, III, Judge

         In this termination of parental rights case, P.T. and K.T., great aunt and uncle of the child at issue in this case, filed a petition to terminate the rights of N.D. (mother) with respect to her child, D.T. Mother did not appear for trial. She had previously filed a second request for a continuance, which the trial court had denied. At trial, P.T. and K.T. alleged the following grounds for termination: (1) four independent conditions or occurrences constituting severe child abuse; (2) mental incompetence; (3) two separate instances of abandonment by failure to support; (4) two separate instances of abandonment by failure to visit; and (5) failure to assume by act or omission, legal/physical custody or financial responsibility of the child. The court found clear and convincing evidence of all ten grounds. By the same quantum of proof, the court also found that termination is in the child's best interest. Mother appeals. We affirm.

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

          Mark Foster, Madisonville, Kentucky, for the appellant, N.D.

          Sharon Dawn Coppock, Strawberry Plains, Tennessee, for the appellees, P.T. and K.T.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Thomas R. Frierson, II, J., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         Mother's rearing of her children has resulted in abuse, neglect, inconsistent housing, and no fewer than nineteen encounters with child protective services. Mother herself had a childhood characterized by abuse. She reported a significant history of sexual abuse by her father and brother. As an adult, mother has experienced physical and emotional abuse by partners. Mother has a history of mental illness. She has been diagnosed with post-traumatic stress disorder, depression, anxiety, and borderline personality disorder. Furthermore, she suffers from ongoing issues with severe alcohol and drug abuse. Mother admitted to using prescription narcotics while pregnant with the child. She has a criminal record as a result of her lifestyle.

         On January 7, 2013, mother was incarcerated, in Shakopee, Minnesota. She was there due to a violation of probation resulting from earlier drug crimes and for domestic assault by strangulation of the child's older half-sister (H.D.). Mother gave birth to the child, on March 26, 2013, while incarcerated. Mother acknowledged her unavailability to care for the child due to her incarceration. On April 1, 2013, mother signed a "delegation of powers by parent form" giving the child to his paternal grandmother.

         On June 10, 2013, mother signed another delegation of powers form giving the child to his maternal grandfather. He was the individual who mother had accused of sexually assaulting her throughout her life. In October 2013, the Minnesota Department of Human Services removed the child from the maternal grandfather. The child was then placed in the custody of the State of Minnesota.

         On February 15, 2014, Minnesota placed the child in the physical custody of P.T. and K.T., who, as previously mentioned in this opinion, are the child's maternal great aunt and uncle. On February 20, 2015, the court entered an order placing the permanent and legal custody of the child with P.T. and K.T., who then resided in Tennessee. The Minnesota court limited the child's contact with mother. P.T. and K.T. received legal custody of the child, on May 22, 2015. On July 31, 2015, they filed their petition for termination of parental rights and adoption with respect to child and also his half-sibling sister (D.B.). Mother responded to the termination petition, expressing her desire to contest the termination of her rights. Mother was released from prison, on December 21, 2015.

         On March 2, 2016, P.T. and K.T. filed a voluntary dismissal of their petition with respect to half-sister D.B. The record reflects that D.B. informed her therapist and guardian ad litem that she no longer wanted to be adopted. D.B. sought to return to Minnesota. An order to conclude P.T. and K.T.s' custody of D.B. was entered, on March 4, 2016.

         Trial involving parental rights was originally set for April 26-27, 2016 with respect to the child. Mother moved for a continuance as a result of the mother's alleged inability to travel to Tennessee due to a parole violation. An order was entered by the court granting the continuance. A December 5-6, 2016 trial date was set at a docket sounding on August 19, 2016. The selected dates were pre-approved by all counsel, and all counsel were promptly notified of the trial dates.

         On October 11, 2016, during proceedings involving a motion to compel discovery, the following exchange occurred:

Ms. Coppock [attorney for P.T. and K.T.]: …Then finally if [mother] doesn't petition for permission to travel, her parole officer won't let her travel and we filed a letter from her parole officer at the last hearing saying that was why she wasn't here last time was because she was both in trouble and she didn't ask in time.
So for all of those reasons, I wanted to at least state on the record and advise [mother's attorney] and get input from you if you think I'm on the wrong track. If she's not here, we will seek a default judgment. She's not incarcerated. She doesn't have a right to participate by phone and her parole officer says if she stays in compliance and petitions in time that she can, in fact, travel.
So for those reasons, we would -- I need her here because I have a lot of documents to show her. It's largely a documents case and to do that over the telephone is too great a hardship to our case and she's not entitled. This is her child and if she wants him, she needs to appear.
The [trial] Court: Okay. What do you say?
Ms. Jarret [D.T.'s guardian ad litem]: Your honor, I completely agree. I'm Amanda Jarret. I'm the guardian ad litem and I do agree that we need this information and I support the argument that has been made by Ms. Coppock.

         Mother filed a second motion to continue on November 30, 2016. The motion was heard by the trial court, on December 1, 2016, by teleconference. The trial court denied the second motion to continue, and in its subsequent order summarized its reasoning as follows:

…Respondent's interrogatories indicate sufficient discretionary income to accumulate funds for travel to Tennessee with less advance notice than Respondent actually had and even if the income from a few days work were lost to illness.

Petitioners and the Guardian ad Litem also expressed doubt Respondent was in good standing with her parole officer or that the officer had approved a travel request, but counsel had so far been unable to obtain information from the parole officer on those points.

In their written response, Petitioners raised T.C.A. § 36-1-113(k) requiring that a hearing take place within six months of the filing of a termination of parental rights action unless the court determines that an extension is in the best interest of the child. The petition was filed on July 31, 2015, sixteen (16) months before the December 2016 trial setting. At a discovery motion hearing on October 11, 2016, Petitioners' counsel anticipating a claimed travel problem, reminded Respondent's counsel on the record of the requirement for parole compliance and advanced approval for Respondent to travel out of the State of Minnesota.
This Court, seeing no reasonable expectation that the passage of time would improve the Respondent's ability to travel to Tennessee for a trial and no benefit to the child by delay, denied Respondent's motion to continue this case. At that time, the Court expressed hope that the Respondent would resolve her travel difficulties in time to attend the trial and told the Respondent's counsel that should proof arise proving that Respondent was impeded from travel through no fault of her own, the Court would reconsider the ruling. An order was not prepared by the time of trial.
The motion was then verbally renewed immediately before the trial began on December 5, 2016. No proof that Respondent was impeded through no fault of her own was offered. Instead the parties agreed and some exhibits were offered demonstrating that the Respondent did not have travel permission from her parole officer to travel. Further, it was proven that Respondent was again noncompliant with the terms of her parole due to consuming alcohol on November 13, 2016. Further, the Guardian ad Litem and Respondent's counsel agreed that the parole officer had told them by phone and email that despite the violation of the terms of her parole, a travel request would have been entertained in the event of a death in the family or for an appearance in court and that the Respondent had not applied for permission to travel…

         The trial proceeded without mother's presence. On December 7, 2016, the trial court entered its final judgment terminating mother's parental rights. The court found that there was clear and convincing evidence for that result. By the same amount of proof, the trial court found that termination is in the child's best interest. The trial court further adjudged that the matter may be scheduled for immediate hearing on P.T. and K.T.'s adoption petition. Mother appeals.

         II.

         As taken from her briefs, and slightly restated, mother raises the following issues on appeal:

Whether the trial court erred when it denied mother's second motion for continuance of the trial, which prevented Mother from being able to participate in the trial.
Whether the trial court erred when it proceeded with trial in mother's absence without offering mother the option to participate by telephone.
Whether the trial court erred by finding clear and convincing evidence that it was in the child's best interest to terminate mother's parental rights.

P.T. and K.T. raise the following additional issues on appeal, as taken verbatim from their brief:

What is the impact of Appellant's failure to strictly comply with T.C.A. § 36-1-124, which requires that a Notice of Appeal in a termination of parental rights case be signed by the Appellant?
The review, pursuant to In re Carrington H., of whether each ground for termination of parental rights found at trial is supported by clear and convincing evidence.

         III.

         A parent has a fundamental right, based on both the federal and state constitutions, to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute. The State may interfere with a parent's rights in certain circumstances. In re Angela E., 303 S.W.3d at 250. Our legislature has listed the grounds upon which termination proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and a parent's rights may be terminated only where a statutory basis exists. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

         To terminate parental rights, a court must determine by clear and convincing evidence the existence of at least 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 Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). "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 586, 596 (Tenn. 2010) (citations omitted). Unlike the preponderance of the evidence standard, "[e]vidence satisfying the clear and convincing standard establishes that the truth of the facts asserted is highly probable." In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

         Once a ground for termination is established by clear and convincing evidence, the trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). "The best interest[ ] analysis is separate from and subsequent to the determination that there is clear and convincing evidence of grounds for termination." Id. at 254. The existence of a ground for termination "does not inexorably lead to the conclusion that termination of a parent's rights is in the best interest of the child." In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).

         We are required to review all of the trial court's findings with respect to grounds and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) ("[W]e hold that in an appeal from an order terminating parental rights the Court of Appeals must review the trial court's findings as to each ground for termination and as to whether termination is in the child's best interest[ ], regardless of whether the parent challenges these findings on appeal.")

         The Supreme Court has stated our standard of review:

An appellate court reviews a trial court's findings of fact in termination proceedings using the standard of review in Tenn. R. App. P. 13(d). Under Rule 13(d), appellate courts review factual findings de novo on the record and accord these findings a presumption of correctness unless the evidence preponderates otherwise. 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. The trial court's ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness. Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness.

Id. at 523-24 (internal citations omitted). "When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to . . . the trial court's factual findings." In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034, at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).

         IV.

         P.T. and K.T. ask this Court to consider the impact of mother's alleged failure to strictly comply with Tenn. Code Ann. § 36-1-124(d) by not personally signing the initial notice of appeal. Our Supreme Court took up this issue in In re Bentley D. The High Court held that "the signature requirement of Tennessee Code Annotated section 36-1-124(d) does not require a notice of appeal to be signed personally by the appellant" and that a notice of appeal signed by the appellant's attorney satisfied the signature requirement of T.C.A. § 36-1-124(d). In re Bentley D., 537 S.W.3d 907, 915 (Tenn. 2017). Therefore, ...


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