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In re Keagan P.

Court of Appeals of Tennessee, Knoxville

August 5, 2019

IN RE KEAGAN P.

          Assigned on Briefs July 1, 2019

          Appeal from the Circuit Court for Blount County No. E-27956 Tammy M. Harrington, Judge

         A trial court terminated a father's parental rights on the basis of abandonment by failure to visit and substantial noncompliance with a permanency plan. The father appealed, and we affirm the termination.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Molly Jo Hardin, Knoxville, Tennessee, for the appellant, John R.P.

          Herbert H. Slatery, III, Attorney General and Reporter, and Jeffrey D. Ridner, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Andy D. Bennett, J., delivered the opinion of the Court, in which John W. McClarty and Carma Dennis McGee, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         I. Factual and Procedural Background

         Teresa M.H. ("Mother") and John R.P. ("Father") are the parents of Keagan P., who was born in 2015. Keagan was removed from his parents' care and placed in the temporary custody of the Department of Children's Services ("DCS" or "the Department") in August 2017 when he was found living in a homeless shelter with Mother.[1] Mother and Father were awarded supervised visitation pursuant to a preliminary hearing order dated August 16, 2017. At an adjudicatory/dispositional hearing on November 16, 2017, the trial court ordered DCS and the parents to have a conference call each month to set up the next month's visitation schedule. Mother and Father were required to confirm their visits with the DCS case manager twenty-four hours in advance of each scheduled visit, and DCS was directed to assist the parents with their travel expenses by providing them with gas cards.[2]

         The Department initially prepared a Family Permanency Plan on August 28, 2017, with the permanency goal of returning Keagan and his siblings to their parents. This plan was ratified by the trial court on November 16, 2017, and it had a goal target date of February 28, 2018. The parents were not making progress with the requirements set forth in this plan, so a second permanency plan was created on April 2, 2018. In addition to the goal of returning Keagan and his siblings to their parents, the second plan included the permanency goal of adoption. This plan was ratified by the trial court on May 11, 2018. Father's responsibilities under the second plan were identical to those set forth in the first plan, with a few responsibilities added. Father was required to visit Keagan at least twice each month. He was permitted to have visitation in person and via e-mail, phone calls, and letters. His in-person visits were to be supervised initially, with the level of supervision diminishing as he met his responsibilities under the plan. Father was also required to do the following: maintain a substance-free lifestyle without legal infractions; complete an alcohol and drug assessment and follow all recommendations; sign a release of information to allow DCS access to the results of the assessments; submit to random drug screenings upon request by DCS; sign releases for background checks in Tennessee and West Virginia; contact the family service worker ("FSW") weekly to provide an update on his living and job situation and his progress on recommendations resulting from assessments; maintain safe housing free of environmental hazards; and complete parenting assessments, provide the FSW with a certificate of completion, and follow recommendations. Father was required to provide proof to the FSW of reliable transportation, legal income, and stable housing to show he could support himself and Keagan.

         The Department placed Keagan and his siblings together in a foster home that was over 100 miles away from Father. The permanency plan directed Father to provide a transportation plan to the FSW one week prior to each scheduled visit to enable the FSW to prepare the necessary paperwork to submit a request for a gas card to assist Father with his travel costs. On April 26, 2018, Father signed a statement on the second permanency plan indicating that the plan had been discussed with him and that he agreed with the plan. He also signed a statement the same day indicating that he had received a copy of the Criteria and Procedures for Termination of Parental Rights ("CPT") and that he was given an explanation of its contents.[3]

         From August 2017 to April 11, 2018, when DCS filed its termination petition, Father exercised his visitation rights with Keagan just two or three times. He failed to maintain contact with DCS or complete any of the substantive requirements of the second permanency plan. The Department filed its petition to terminate Father's parental rights on April 11, 2018. The grounds for termination DCS asserted against Father include abandonment by failure to visit, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i), [4] and substantial noncompliance with the permanency plan, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2). Father did not file an answer to the petition.

         This case was tried on November 21, 2018. Father was in West Virginia during the trial and was permitted to participate in the proceedings by phone. Father's attorney attended and participated in the trial. The court heard live testimony by Mother, Ms. J. (the foster mother), and Frenchie Mitchell (the current FSW). Roben Hartsell was the FSW from August 2017 through July 8, 2018, and she gave a deposition on October 16, 2018, that was admitted into evidence.

         Following the presentation of evidence, the trial court issued a ruling from the bench terminating Father's parental rights based on the two grounds DCS asserted against him. The court then issued a written order on December 12, 2018. Father appeals, challenging the trial court's determination that clear and convincing evidence supports both the grounds for termination and the best interest analysis.

         II. Standard of Review

         The Tennessee Supreme Court has described the appellate review of parental termination cases as follows:

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.

In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (citations omitted); see also In re Gabriella D., 531 S.W.3d 662, 680 (Tenn. 2017).

         The termination of a parent's rights is one of the most serious decisions courts make. As the United States Supreme Court has said, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." Santosky v. Kramer, 455 U.S. 745, 787 (1982). "Terminating parental rights has the legal effect of reducing the parent to the role of a complete stranger," In re W.B., IV, Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005), and of "severing forever all legal rights and obligations of the parent or guardian," Tenn. Code Ann. § 36-1-113(1)(1).

         A parent has a fundamental right, based in both the federal and state constitutions, to the care, custody, and control of his or her own child. Stanley v. Illinois, 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) (citing Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995) (citing Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993)). This right "is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions." In re Carrington H., 483 S.W.3d at 521 (citing U.S. Const. amend. XIV, § 1; Tenn. Const. art. 1, § 8). While this right is fundamental, it is not absolute. Id. at 522. The State may interfere with parental rights in certain circumstances. Id. at 522-23; In re Angela E., 303 S.W.3d at 250-51. Our legislature has listed the grounds upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, and a parent's rights may be terminated only where a statutory basis exists. In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

         To terminate parental rights, a court must find 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 Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015); 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 Carrington H., 483 S.W.3d at 522 (quoting In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted)). "Evidence satisfying the clear and convincing evidence 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). As a reviewing court, we "must 'distinguish between the specific facts found by the trial court and the combined weight of those facts."' In re Keri C., 384 S.W.3d 731, 744 (Tenn. Ct. App. 2010) (quoting In re Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct. App. 2007)). Then, we must determine "whether the combined weight of the facts . . . clearly and convincingly establishes all of the elements required to terminate" a parent's rights. Id. "When it comes to live, in-court witnesses, appellate courts should afford trial courts considerable deference when reviewing issues that hinge on the witnesses' credibility because trial courts are 'uniquely positioned to observe the demeanor and conduct of witnesses.'" Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (quoting State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)).

         Once a ground for termination is established by clear and convincing evidence, the trial court or the reviewing court conducts a best interests analysis. In re Angela E., 303 S.W.3d at 251. "The best interests 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. June 26, 2006).

         III. Analysis

         A. Grounds for Termination

         1. Abandonment by Failure to Visit

         The termination of a parent's rights may be based on the ground of abandonment, as that term is defined in Tenn. Code Ann. § 36-1-102. Tenn. Code Ann. § 36-1-113(g)(1). The Department alleged that Father abandoned Keagan by willfully failing to visit him, as set forth in Tenn. Code Ann. § 36-1-102(1)(A)(i). When DCS filed the termination petition, that statute provided, in relevant part:

For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent or parents or the guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, that the parent or parents or the guardian or guardians . . . have willfully failed to visit . . . the child.

         Tenn. Code Ann. § 36-1-102(1)(A)(i) (2018).[5] The applicable statute defines "willfully failed to visit" as "the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation." Id. § 36-1-102(1)(E) (2018). "Token visitation" is defined as "visitation, under the circumstances of the individual case, [that] constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child." Id. § 36-1-102(1)(C). The statute further provides that "[a]bandonment may not be repented of by resuming visitation . . . subsequent to the filing of any petition seeking to terminate parental or guardianship rights or seeking the adoption of a child." Id. § 36-1-102(1)(F). The Department filed the termination petition on April 11, 2018. Thus, the relevant four-month period is December 10, 2017, through April 10, 2018. See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (explaining that statutory four-month period covers four months preceding day termination petition was filed and does not include day petition was filed).

         "Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent." In re Audrey S., 182 S.W.3d at 863. To prove the ground of abandonment by failure to visit, DCS must show by clear and convincing evidence that Father "had the capacity to do so, made no attempt to do so, and had no justifiable excuse for not doing so." In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (citing In re Audrey S., 182 S.W.3d at 864).

The willfulness of particular conduct depends upon the actor's intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into a person's mind to assess intentions or motivations. Accordingly, triers-of-fact must infer intent from the circumstantial evidence, including a person's actions or conduct.

In re Audrey S., 182 S.W.3d at 864 (citations omitted); see also Tenn. Dep't of Children's Servs. v. Culbertson, 152 S.W.3d 513, 524 (Tenn. Ct. App. 2004). Whether Father failed to visit Keagan is a question of fact. See In re Adoption of Angela E., 402 S.W.3d at 640. Whether his failure to visit constitutes willful abandonment under the statute, however, is a question of law that we review de novo, according the trial court's determination no presumption of correctness. See id. (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)).

         Father did not testify at the trial. Ms. Hartsell, who was Keagan's FSW from August 2017 through July 8, 2018, testified by deposition that Father visited Keagan just one time during the relevant four-month period, on March 8, 2018. Ms. Hartsell explained that in November 2017 the trial court ordered DCS to schedule a Child and Family Team Meeting ("CFTM") each month to accommodate the parents, who had different schedules, to allow them to select visitation dates that worked for them. Ms. Hartsell submitted an affidavit that was included as an exhibit at trial in which she stated that CFTMs were scheduled in advance and took place on November 30, 2017, January 5, 2018, February 2, 2018, March 2, 2018, April 2, 2018, and May 7, 2018. Father was notified by e-mail and text, and by phone when possible. Ms. Hartsell testified that Father attended fewer than three CFTMs. There is no evidence of the number of visits Father scheduled, but he does not dispute that he visited Keagan only once during the relevant four-month period.

         Father cites In re Adoption of A.M.H., 215 S.W.3d 793 (Tenn. 2007), to support his contention that he was thwarted in his attempts to visit Keagan more because Keagan was living in a foster home that was over 100 miles away. In that case, the Tennessee Supreme Court stated that "a parent who attempt[s] to visit and maintain relations with his child, but [is] thwarted by the acts of others and circumstances beyond his control, [does] not willfully abandon his child." In re Adoption of A.M.H., 215 S.W.3d at 810. Unlike this case, A.M.H.'s custodians did not allow the child's parents to see A.M.H. as often as her parents wanted. Id. at 800. On the day of A.M.H.'s second birthday, her parents wanted to take her with them to have a family photograph made, but A.M.H.'s custodians refused to let her go. Id. at 801. The police were called and told A.M.H.'s parents they would be arrested if they returned to the custodians' house. Id. As a result, A.M.H.'s parents did not visit A.M.H. in the four months preceding the filing of the termination petition. Id. The parents took steps to regain custody of their child during that time, however, by ...


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