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In re Chivon G.

Court of Appeals of Tennessee, Knoxville

August 30, 2019

In re CHIVON G.

          Session July 18, 2019

          Appeal from the Juvenile Court for Knox County No. 56294 Timothy E. Irwin, Judge

         This is a termination of parental rights case, focusing on the minor child of the mother/appellant. The child was placed in the legal custody of the petitioner/appellee on November 8, 2016, based upon the trial court's finding that the child was dependent and neglected while in the mother's care. On June 7, 2018, the petitioner filed a petition to terminate the parental rights of the mother. Following a bench trial, the trial court found that statutory grounds existed to terminate the parental rights of the mother upon its finding by clear and convincing evidence that (1) the mother had abandoned the child by willfully failing to provide financial support and (2) the conditions leading to the child's removal from the mother's home persisted. The court further found by clear and convincing evidence that termination of the mother's parental rights was in the child's best interest. The mother has appealed. Having determined that the statutory ground of persistence of the conditions leading to removal was not proven by clear and convincing evidence, we reverse the trial court's finding as to this ground. We affirm the trial court's judgment in all other respects, including the termination of the mother's parental rights to the child.

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

          Gregory E. Bennett, Seymour, Tennessee, for the appellant, Asia G.

          Jennifer S. Bjornstad, Knoxville, Tennessee, for the appellee, Shuntia G.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Frank G. Clement, Jr., P.J., M.S., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         On June 7, 2018, the plaintiff, Shuntia G. ("Petitioner"), filed a petition in the Knox County Juvenile Court ("trial court") seeking the termination of all parental rights and obligations of Asia G. ("Mother") with respect to her child, ChiVon G. ("the Child"). Petitioner, who was identified as the Child's paternal cousin, alleged that the Child was born out of wedlock to Mother and Anthony H. ("Father") in March 2016 in Knox County.

         Petitioner averred that the Child had resided in Petitioner's home since August 26, 2016. She stated that the Child had previously lived with another relative, Brenda D., following the Child's removal from Mother's custody shortly after the Child's birth. According to Petitioner, she was awarded temporary physical custody of the Child in August 2016 by the trial court. She was later granted legal custody of the Child on November 8, 2016, upon the trial court's finding that the Child was dependent and neglected in Mother's care due to Mother's substance abuse and mental health concerns and Father's substance abuse and domestic violence issues. According to Petitioner, Mother and Father were granted only supervised visitation rights with the Child at that time.

         Petitioner further asserted that on May 30, 2018, the Knox County Circuit Court, with Judge Gregory McMillan presiding, confirmed the trial court's order denying Mother's request for unsupervised visitation. Petitioner noted, inter alia, that Mother had given birth to six children, none of whom was in her custody.

         Petitioner asserted multiple grounds in support of her petition for termination of Mother's parental rights. First, she requested that the trial court terminate Mother's parental rights based on persistence of the conditions that originally led the trial court to remove the Child from Mother's home. Second, Petitioner sought termination of Mother's parental rights based on Mother's abandonment of the Child by her willful failure to provide support, specifically alleging that Mother had failed to pay child support for a period longer than four months preceding the filing of the termination petition despite Mother's employment during that period. Finally, Petitioner sought termination of Mother's parental rights based on Mother's alleged abuse of her other children.

         Petitioner also asserted that termination of Mother's parental rights was in the Child's best interest. Petitioner stated that she was filing a separate petition seeking termination of Father's parental rights. On June 12, 2018, the trial court entered an order appointing a guardian ad litem to represent the interest of the Child in this matter. The trial court also appointed counsel for Mother based on Mother's affidavit of indigency.

         Following a bench trial conducted on November 5, 2018, the trial court entered an order terminating Mother's parental rights on November 14, 2018. In that order, the court considered Mother's relationship with all six of her children. As the trial court noted: "[Mother] has given birth to a total of six children, three of whom [Mother's] parental rights [have] been involuntarily terminated, two are in the custody of non-parents (including [the Child]), and one is in foster care and has been since October 4, 2017." The trial court determined that Mother had failed to pay any meaningful child support to Petitioner despite being consistently employed since at least 2015.

         In addition, the trial court found that Mother had been diagnosed with bipolar disorder with psychotic features in February 2018.[1] The court also determined that Mother had sought treatment, including psychotropic medication, to improve her mental health. According to the court's findings, Mother had a "long history" of marijuana use, including during most of her pregnancies.

         The trial court further found that the Child was "thriving" in the care of Petitioner. As the court stated: "Petitioner has sufficient income to provide for [the Child], has an appropriate home, has no criminal history, and has no history of substance abuse. [Petitioner] has one biological child that she raised who is currently enrolled in college."

         The trial court found that clear and convincing evidence supported termination of Mother's parental rights based on two statutory grounds: (1) Mother's willful failure to pay child support for a period of four consecutive months prior to the filing of the termination petition and (2) persistence of the conditions that initially led to the removal of the Child from Mother's home. The trial court determined, however, that Petitioner had failed to present proof sufficient to terminate Mother's parental rights based on the ground of severe child abuse.

         Regarding the best interest of the Child, the trial court explained:

[I]t is in the best interest of the [the Child] for [Mother's] parental rights to be terminated. [Mother] has exhibited some adjustment to her circumstances but the Court does not know if these adjustments will be lasting so that it would be it safe and in [the Child's] best interest to be in her home at some point for visitation. [Mother] has maintained regular supervised contact with [the Child]. [Mother] has as much of a meaningful relationship with [the Child] that a person could by visiting a few hours supervised per month for the life of the child. The effect of the change of caregivers would be devastating to [the Child]. There is proof of mental or physical brutality by [Mother] to siblings of [the Child] based upon the neglect of [Mother] which allowed [one of Mother's other children] to burn himself on a heater and based upon [Mother's] subjecting [the Child] and other siblings to domestic violence. There is proof that [Mother's] home itself is appropriate, however, the proof also shows continued [marijuana] use in the home. [Mother] has a long history of mental health issues and substance abuse issues dating back to when her oldest child, [B.G., born in 2001], was a baby, therefore the Court cannot conclude that she could provide care for [the Child] in a safe and stable manner and the Court is not convinced of the stability of [Mother's] mental health status. [Mother] has never paid child support. In addition, the Court must consider that [Mother] has six biological children, none of whom are in her custody. Three of the children have been adopted with [Mother's] rights being terminated involuntarily, one of the children is in foster care, one of the children is in the custody of a relative, and the other is the subject of this case. [Mother] is not permitted unsupervised contact with any of her children. Reviewing each factor set forth by statute to determine what is in the best interest of [the Child], the Court finds that it is in the best interest of [the Child] for [Mother's] parental rights to be terminated so that [the Child] can have permanency and stability.

         The trial court, upon terminating Mother's parental rights, granted complete custody, control, and guardianship of the Child to Petitioner. Mother timely appealed.

         II. Issues Presented

         Mother presents the following issues for our review, which we have restated slightly:

1. Whether the trial court erred by finding that Mother had abandoned the Child through Mother's willful failure to pay child support for four consecutive months prior to the filing of the termination petition.
2. Whether the trial court erred by finding that persistence of the conditions leading to removal of the Child persisted such that the Child would be subjected to further abuse or neglect if placed in Mother's care.
3. Whether the trial court erred by determining that termination of

         Mother'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. See Tenn. R. App. P. 13(d); see also 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');">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 [v. Kramer], 455 U.S. [745, ] 758-59 [(1982)]. 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 decision 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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