Session July 18, 2019
from the Juvenile Court for Knox County No. 56294 Timothy E.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed in Part, Reversed in Part; Case
Gregory E. Bennett, Seymour, Tennessee, for the appellant,
Jennifer S. Bjornstad, Knoxville, Tennessee, for the
appellee, Shuntia G.
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.
R. FRIERSON, II, JUDGE
Factual and Procedural Background
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.
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.
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.
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.
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.
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.
addition, the trial court found that Mother had been
diagnosed with bipolar disorder with psychotic features in
February 2018. 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.
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."
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.
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.
trial court, upon terminating Mother's parental rights,
granted complete custody, control, and guardianship of the
Child to Petitioner. Mother timely appealed.
presents the following issues for our review, which we have
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
parental rights was in the best interest of the Child.
Standard of Review
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).
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 ...