In re D.T. et al.
Session February 21, 2018
from the Chancery Court for Loudon County No. 12338 Frank V.
Williams, III, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed; Case Remanded
Foster, Madisonville, Kentucky, for the appellant, N.D.
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.
CHARLES D. SUSANO, JR., JUDGE
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.
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.
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.
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.
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.
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
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,
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.
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
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
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
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.
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).
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).
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).
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
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
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)).
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,