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In re Amynn K.

Court of Appeals of Tennessee, Knoxville

June 20, 2018

In re AMYNN K.

          Session February 21, 2018

          Appeal from the Juvenile Court for Hamilton County No. 273258 Robert D. Philyaw, Judge

         This is a termination of parental rights case involving the parental rights of the father, William K. ("Father"), to his minor child, Amynn K. ("the Child"), who was four years of age at the time of trial. The Child was born in 2013 to Father and Amanda S. ("Mother"). In April 2013, the Hamilton County Juvenile Court ("trial court") granted temporary legal custody of the Child to the Tennessee Department of Children's Services ("DCS"). The Child was immediately placed in foster care, where he has remained since that date. Following a hearing, the trial court entered an order on June 24, 2013, adjudicating the Child dependent and neglected due to Mother's abandonment of the Child at the hospital following his birth. On August 23, 2016, DCS filed a petition to terminate the parental rights of Mother and Father. Following a bench trial, the trial court terminated Father's parental rights to the Child upon determining by clear and convincing evidence that Father had (1) abandoned the Child through conduct exhibiting wanton disregard for the welfare of the Child prior to Father's incarceration, (2) failed to substantially comply with the requirements of the permanency plans, and (3) failed to manifest an ability and willingness to personally assume custody of and financial responsibility for the Child. The court also found clear and convincing evidence that termination of Father's parental rights was in the best interest of the Child. Father has appealed.[1] Discerning no reversible error, we affirm.

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

          Emily Brenyas, Chattanooga, Tennessee, for the appellant, William K.

          Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Cara Welsh, Chattanooga, Tennessee, Guardian Ad Litem.[2]

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

          OPINION

          THOMAS R. FRIERSON, II, JUDGE.

         I. Factual and Procedural Background

         On August 23, 2016, DCS filed a petition seeking to terminate Mother's and Father's parental rights to the Child. The Child had been taken into protective custody by DCS in April 2013, when he was two days old, at the hospital where he was born. According to the trial court's factual findings in the dependency and neglect adjudicatory hearing order, Mother expressed a desire upon the Child's birth to place him for adoption. Although Mother briefly changed her mind, she decided by the time of removal that she was not able to care for the Child. Father came to the hospital when the Child was born but was escorted from the property by hospital security because, according to Father, Mother had stated that she did not want him to be present. Following the Child's birth, Mother declared that Father was the biological father of the Child. However, Father's name does not appear on the birth certificate, and Father did not sign a Voluntary Acknowledgment of Paternity. When the Child was four days old, he was placed with the foster parents, with whom he remained at the time of trial.

         As part of a dependency and neglect action filed by DCS in the trial court, Father and Mother appeared during a preliminary hearing conducted on May 8, 2013, and an adjudicatory hearing conducted on June 24, 2013. Throughout those proceedings, Mother maintained that she did not wish to have visitation with the Child, and the trial court adjudicated the Child dependent and neglected based on Mother's abandonment. Father had first expressed a desire to obtain custody of the Child when he participated via telephone in a child and family team meeting conducted by DCS nearly two weeks following the Child's birth, and he continued to express this desire during the dependency and neglect proceedings. Following the adjudicatory hearing, the trial court scheduled a hearing to begin the process of establishing Father's legal paternity.

         While the Child was in DCS custody, Father entered into four permanency plans with DCS. The first plan was developed on April 23, 2013; ratified by the trial court on July 31, 2013; and presented as an exhibit during the termination trial. As to Father, this plan set forth the following responsibilities, which were approved by the trial court as reasonably related to remedying the conditions which necessitated foster care: (1) Father would submit to a DNA test to determine whether he was the biological father of the Child; (2) if the DNA test proved that Father was the biological father of the Child, he would file a petition for custody of the Child; (3) Father would obtain and maintain stable housing and legal, verifiable income; (4) Father would sign releases to allow DCS to obtain information; (5) Father would maintain contact with DCS; and (6) Father would pay child support. It is undisputed that DCS provided Father with a copy of the Criteria and Procedures for Termination of Parental Rights and that he acknowledged his receipt of the form through his signature. A DCS Family Services Worker also signed the form, acknowledging that she had explained the contents of the document to Father.

         Father subsequently submitted to DNA testing, the results of which were not yet complete when he participated in the development of a second permanency plan with DCS. The second permanency plan was developed during a child and family team meeting held on September 17, 2013. The plan was approved by the trial court on October 23, 2013, and presented as an exhibit during the termination trial. The second permanency plan repeated Father's responsibilities from the first plan of establishing paternity, filing for custody, establishing and maintaining stable housing and verifiable income, signing releases for DCS, maintaining contact with DCS, and paying child support. It also set forth the following additional responsibilities, again approved by the trial court as reasonably related to remedying the conditions necessitating foster care: Father would (1) complete a mental health assessment and follow all recommendations therefrom, (2) complete an alcohol and drug assessment and follow all resultant recommendations, (3) complete parenting classes, and (4) submit to random drug screens.

         The record reflects that DNA testing ultimately demonstrated that Father was the biological father of the Child. Based on the DNA test results, Father was declared to be the biological and legal father of the Child by the Hamilton County child support court on September 23, 2013. At that time, the child support court set Father's initial child support obligation at $259.00 monthly but subsequently modified that amount to $124.00 monthly in October 2014.

         Following a permanency hearing conducted on July 9, 2014, the trial court found that Father was "in substantial compliance" with the second permanency plan. However, the court found that remaining barriers to Father's reunification with the Child included "developing a support system to care for the child when he was at work" and "addressing safety concerns at his home to make it safe for the child to be placed there." At the time, Father resided in Montgomery County.

         During a review hearing conducted on October 15, 2014, DCS reported that Father had completed a clinical parenting assessment and an alcohol and drug assessment and that he was enjoying unsupervised visitation with the Child. Although the recommendations of the parenting assessment included anger management classes, DCS also announced that Father would soon be able to begin overnight visitation with the Child. However, following an unannounced home visit conducted by former DCS family services worker Kalia Williams in November 2014, new concerns arose regarding environmental conditions in Father's home and the presence of Father's mother ("Paternal Grandmother") and sister-in-law, both of whom Montgomery County DCS had previously indicated "for issues related to sexual exploitation of minor children." Father testified during trial that Paternal Grandmother had vacated Father's home following this home visit. Notwithstanding, DCS alleged and the trial court found that Paternal Grandmother kept a key and "appeared to have unfettered access to [Father's] home." Upon DCS's motion, the trial court entered an order directing that Father's unsupervised overnight visits would take place in Hamilton County, where the Child remained in foster care, rather than in Montgomery County where Father resided.

         DCS subsequently developed a third permanency plan with Father's participation on February 20, 2015. The third plan was approved by the trial court on May 20, 2015, and was presented as an exhibit during the termination trial. This plan required Father to comply with the aforementioned requirements from the previous permanency plan and included an additional responsibility that Father would participate in anger management classes as recommended by his clinical assessment, which responsibility was found by the trial court to be reasonably related to remedying the conditions necessitating foster care.

         DCS does not dispute Father's assertion that he completed the requirements for anger management classes, parenting education classes, and random drug screens. Although Father's tobacco use and the resulting environmental issue of cigarette butts and cigar tips in the home and yard appear to have been concerns, the only allegation of drug abuse against Father originated with Mother when the Child was first placed in custody. DCS acknowledged that this allegation was ultimately unsubstantiated. However, during a home visit to Father's residence on September 17, 2015, Ms. Williams observed additional environmental concerns, testifying during trial that the home was not a safe and appropriate environment for the child at that time. According to the trial court's order, Ms. Williams testified that she personally observed during this visit:

a refrigerator on the porch, a padlock on the front door, safety issues related to a hole or gap at the front porch entrance, the flooring needed to be repaired, the home was cluttered with big totes stacked on top of one another, including tools, and the bathroom floor was unfinished.

         Father enjoyed what would be his only unsupervised overnight visit with the Child on October 19 and 20, 2015. As Father acknowledges on appeal, he "was late to pick the child up, brought an unapproved adult around the child, and returned the child to the Foster Parents' home late." The unapproved adult was a woman, A.D., whom Father had initially met online and had not met in person until the date of the overnight visit. Father does not dispute the trial court's summary in its final order of Ms. Williams's testimony regarding this incident. The court stated as follows in relevant part:

Ms. Williams testified that after the visit, it was discovered that [A.D.] had been arrested in Georgia on October 8, 2015 for aggravated assault (family violence). Ms. Williams testified that during his visit, [Father] took the subject child over the state line and into Georgia to spend time with [A.D.]. It was also discovered that [Father's] license was not reinstated and he was driving without a valid driver's license.

         Father does not dispute that DCS had informed him in advance that he was not to have unapproved adults around the Child during unsupervised visitation. As a result of the problems with the overnight visit, DCS suspended Father's unsupervised visitation.

         DCS developed the fourth permanency plan during a child and family team meeting held on October 26, 2015, at which Father was not present but for which he preapproved his counsel's attendance and decision-making on his behalf. Father does not dispute that he received a copy of the fourth permanency plan and corresponding statement of responsibilities via United States mail. This plan was ratified by the trial court on December 23, 2015, and was presented as an exhibit at trial. It included Father's requirements included in the previous permanency plans and further delineated the following responsibilities for Father, approved by the trial court as reasonably related to remedying the conditions necessitating foster care: Father would (1) provide and maintain a safe, stable home for the Child; (2) "meet all of [the Child's] needs and ensure that he grows and thrives as he should"; (3) child proof his home to ensure that the Child was safe from environmental harm; (4) ensure that the Child had adult supervision at all times when the Child was in his care; (5) obtain and maintain a driver's license and vehicle insurance prior to any unsupervised visits; and (6) complete specific housing corrections, to include enclosing the water heater outside of the Child's bedroom, fixing the floor in the bathroom, adding cabinet faces in the kitchen, fixing the space/opening between the front door and front porch, picking up all cigar tips from the yard, and installing a container in the front yard in which to place the tips in the future.

         DCS acknowledges that Father completed some of the tasks set forth in the fourth permanency plan. As to the ongoing requirement of maintaining verifiable employment, DCS acknowledges that Father had been employed with Auction World and "had a steady job until April 2016." Father was terminated from his employment in April 2016 after he was arrested for aggravated assault. Subsequently, he was employed in a seasonal job at a distribution center from October 31, 2016, until November 26 or 27, 2016. After November 2016, Father was unemployed and remained so until his arrest on January 3, 2017. Following Father's release from jail on February 25 or 26, 2017, he remained unemployed at the time of trial in May 2017.

         As the trial court in its final order summarized Ms. Williams's testimony regarding Father's progress on the permanency plan:

[Father] completed parenting classes and anger management through the in-home services that Ms. Williams had arranged for [Father] to receive in Montgomery County.[3] Further, the in-home service worker incorporated the recommendations from the clinical parenting assessment. When Ms. Williams made another visit to [Father's] home, she observed that he had picked up the cigar tips in his yard, that he had completed the flooring in the living room and was working on the flooring in the bathroom, and that he was working on the cabinets. She testified that what she had believed was a water heater was not actually a water heater and did not get hot. Therefore, that was no longer a safety concern.

         Ms. Williams also testified, however, that barriers to permanency continued to exist because Father was inconsistent in his visitation with the Child, failed to maintain adequate contact with DCS, failed to maintain stable employment, and incurred criminal charges of arson in October 2013 and driving on a suspended or revoked license and violation of probation in August 2015.

         Janelle Holland, a DCS Family Services Worker who assumed responsibility over the case in May 2016, testified that since she had been working with Father, he had changed residences and failed to supply documentation of his latest residence. Father does not dispute his admission to Ms. Holland that he had waited months to provide DCS with his change of address because he did not want DCS to perform a home study. Father acknowledged that he had fallen behind on his child support obligation and that a contempt action was pending against him. Father also testified that he had purchased shoes for the Child and sometimes brought items for the Child to his visits with the Child. According to Ms. Holland, Father had not paid child support since April 2015 and, at the time of trial, owed a $4, 000.00 child support arrearage.

         On appeal, Father does not dispute the trial court's findings in its final order regarding the basic facts underlying his criminal charges and incarceration while the Child was in DCS custody. The court found in pertinent part:

On July 2, 2013, [Father] was charged with arson in Montgomery County. On or about November 21, 2013, [Father] was placed on probation and qualified for diversion on the arson offense, but later violated the terms of his diversion agreement and was subsequently convicted of that offense. On August 12, 2015, [Father] was arrested for driving on a suspended or revoked license, to which he later entered a guilty plea. On March 4, 2016, [Father] was arrested for driving on a revoked or suspended license and for having prohibited weapons - brass knuckles. [Father] testified that the brass knuckles in the car were not his, but he admitted that he was convicted for it. On April 4, 2016, [Father] was arrested on two (2) counts of aggravated assault and violation of probation, which he later admitted pleading guilty to.

         Following Father's arrest in April 2016, DCS developed a fifth permanency plan on April 29, 2016. During a permanency hearing, the trial court granted a continuance concerning potential approval of this plan upon requests made by Father's counsel and the guardian ad litem to review the plan. In a permanency hearing order entered on June 8, 2016, the trial court found that specific barriers still existing to Father's reunification with the Child were the inconsistency of Father's visitation with the Child, his failure to pay child support, his lack of a driver's license, and his unresolved legal issues. The fifth permanency plan was not submitted to the trial court for approval prior to the termination trial or entered as an exhibit during trial. However, following a permanency hearing conducted on July 13, 2016, the trial court found that Father was no longer in compliance with the previous permanency plans. Noting that Father had reported that he had been arrested for aggravated assault and evicted from his home, the court recommended that DCS proceed with filing a petition to terminate parental rights.

         On August 23, 2016, DCS filed a petition to terminate the parental rights of Father and Mother. DCS amended the petition on February 21, 2017, to include the statutory ground of abandonment by an incarcerated parent through wanton disregard. Following a bench trial conducted over the course of two nonconsecutive days on May 1, 2017, and May 25, 2017, the trial court found that grounds existed to terminate the parental rights of both parents. As to Father, the court found, by clear and convincing evidence, that Father had (1) abandoned the Child through conduct exhibiting wanton disregard for the Child prior to Father's incarceration, (2) failed to substantially comply with the reasonable responsibilities of the permanency plans despite reasonable efforts made by DCS, and (3) failed to manifest an ability and willingness to personally assume custody of and financial responsibility for the Child.[4] See Tenn. Code Ann. §§ 36-1-102(1)(A)(iv) & 36-1-113(g)(1) (abandonment through wanton disregard prior to incarceration), -113(g)(2) (substantial noncompliance with permanency plans), -113(g)(14) (failure to assume custody or financial responsibility). The court further found, by clear and convincing evidence, that termination of Father's parental rights was in the best interest of the Child. Father timely appealed.

         II. Issues Presented

         Father raises three issues for our review, which we have restated slightly:

1. Whether the trial court erred by finding clear and convincing evidence of the statutory ground of Father's abandonment of the Child based on Father's conduct exhibiting wanton disregard for the Child's welfare prior to Father's incarceration.
2. Whether the trial court erred by finding clear and convincing evidence of the statutory ground of Father's substantial noncompliance with the permanency plans and by finding that the requirements of the permanency plans were reasonably related to remedying the conditions necessitating foster care.
3. Whether the trial court erred by finding clear and convincing evidence of the statutory ground of Father's failure to manifest an ability and willingness to personally assume custody of or financial responsibility for the Child.

         DCS raises an additional issue for our review, which we have restated slightly:

4. Whether the trial court erred by finding clear and convincing evidence that termination of Father's parental rights was in the best interest of the Child.

         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 387, 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 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 ...


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