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In re Ethan B.

Court of Appeals of Tennessee, Nashville

May 30, 2018

IN RE ETHAN B.[1]

          Assigned on Briefs November 1, 2017

          Appeal from the Chancery Court for White County No. 2016-CV-60 Ronald Thurman, Chancellor

         A mother appeals the termination of parental rights to her son on the grounds of abandonment by willful failure to visit and willful failure to support. Mother appeals, arguing that the termination of her rights is not supported by the record. After a thorough review, we conclude that the proof does not clearly and convincingly establish that Mother willfully failed to visit or support the child. We reverse the judgment of the trial court and dismiss the petition for termination.

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

          Jonathan T. Hutson, Sparta, Tennessee, for the appellant, Sabrina B.

          Michael H. Knowlton, Cookeville, Tennessee, for the appellees, Charles B. and Unika B.

          Billy K. Tollison, III, McMinnville, Tennessee, for the appellee, Christopher B. [2]

          Richard H. Dinkins, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         This is an appeal of the termination of a Mother's parental rights to her son. Ethan B. was born in October 2011 to Sabrina B. and Christopher B. Sabrina B. ("Mother") left

          Ethan in the care of her friend Unika B. and her husband Charles B. (together, "Petitioners") in September 2013 before she was incarcerated.[3] Around the same time, the Department of Children's Services ("DCS") received a referral of environmental neglect and drug-exposed child relating to Ethan. After having some difficulty locating Ethan, DCS found him in the safekeeping of Unika B. DCS thereafter filed a petition on January 7, 2014, seeking to have Ethan adjudicated dependent and neglected and for the court "to award temporary legal custody of the child to DCS/Unika [B.]" The court entered a "Kinship Protective Custody Order" that day, granting Unika B. custody of Ethan and ordering DCS to directly supervise all contact between him and his parents. On January 30, 2014, Father, Mother, Unika B., a DCS family services worker, and the guardian ad litem created a non-custodial permanency plan for Ethan. On June 12, 2014, the court entered an order which recited that Mother and Father stipulated that Ethan was dependent and neglected; adjudicated Ethan to be dependent and neglected; held that the adjudication was necessary because "[t]he parents were incarcerated and unable to care for the child"; and ordered that "custody shall remain with Unika [B.]." In August 2014, following her release from incarceration and her willingness to follow the recommendations of the parenting plan, Mother was given a trial home visitation.[4] The home visitation was terminated in November 2014 upon DCS's motion when Mother failed a drug test.[5] Mother was apparently re-incarcerated at some point following the termination of the home visitation and remained incarcerated through October 9, 2015.[6]Father was incarcerated through December 22, 2015.

         On April 25, 2016, Petitioners filed the petition to terminate the parental rights of Sabrina B. and Christopher B. and to adopt Ethan, on the grounds of abandonment by failure to support, failure to visit, failure to establish a suitable home, and by engaging in conduct that exhibited wanton disregard for the welfare of Ethan B. A trial was conducted on February 23, 2017, at which the following witnesses testified: Robert Kelsie, Mother's drug and alcohol counselor; Unika and Charles B.; Donald H., Unika's father; and Teresa Jackson, DCS case manager.

         The court entered an Amended Judgment on April 11, [7] terminating Mother's and Father's parental rights on the grounds of abandonment by willful failure to visit and support; the court dismissed the other grounds alleged in the petition. Mother appeals the termination of her rights.

         I. 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 in certain circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep't of Children's Serv. 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).

         II. Analysis

         Abandonment is identified as a ground for termination in Tennessee Code Annotated section 36-1-116(g)(1); pertinent to this appeal, "abandonment" is ...


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