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In re Justine J.

Court of Appeals of Tennessee, Knoxville

October 10, 2019

IN RE JUSTINE J. ET AL.

          Session August 20, 2019

          Appeal from the Chancery Court for Hawkins County No. 2017-AD-39 Douglas T. Jenkins, Chancellor

         This termination of parental rights case involves two children. Father/Appellant appeals the trial court's termination of his parental rights on the ground of abandonment by willful failure to support and willful failure to visit. Because Father did not receive sufficient notice of the grounds for termination of his parental rights, we vacate the trial court's order and remand.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated and Remanded

          Amy Kathleen Skelton, Rogersville, Tennessee, for the appellant,

          Justin J. Gerald T. Eidson, Rogersville, Tennessee, for the appellees, Dena J., and Thomas J.

          Kenny Armstrong, J., delivered the opinion of the court, in which Charles D. Susano, Jr. and Thomas R. Frierson, II, JJ., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         J.T.J. (d/o/b December 2004) and J.F.J. (d/o/b July 2007) (together, the "Children") were born to Appellant Justin J. ("Father") and Dena J. ("Mother").[1] Mother and Father were never married. The Children were born in New York; while living there, both Father and Mother were incarcerated for separate periods of time. During one of Father's incarcerations, Mother relocated to Tennessee with the children and married Thomas J. (together with Mother, "Appellees").

         On October 23, 2017, Appellees filed a petition to terminate Father's parental rights and for adoption. As grounds, Appellees alleged abandonment by willful failure to visit and willful failure to support "for a period over four (4) months prior to the filing of this Petition." The trial court appointed a guardian ad litem for the Children and an attorney for Father on his pauper's oath.

         On April 23, 2018, Father filed a response in opposition to the petition to terminate his parental rights. The matter was set for hearing on June 27, 2018. At the hearing, Father made an oral motion to dismiss the petition on the ground that the petition failed to comply with statutory and local rules concerning pleadings in termination of parental rights cases. In response to Father's oral motion to dismiss, at the June 27 hearing, Appellees made an oral motion to amend their petition, and the case was continued to October 3, 2018 for trial. On October 1, 2018, Father filed a written motion to dismiss.[2] On October 2, 2018, one day before trial, Appellees filed an "addendum" to their petition to terminate Father's parental rights. As is relevant to this appeal, in their addendum, Appellees allege, for the first time, that "the period of time that the Respondent's actions and omissions have occurred are from January 20, 2016 to the filing date of this petition," which was October 23, 2017.

         The case was heard on October 3, 2018. By order of February 1, 2019, the trial court terminated Father's parental rights on the grounds of abandonment by willful failure to visit and willful failure to support. The trial court found that the relevant four-month period was "September 13, 2015 to January 13, 2016." Father appeals.

         II. Issues

         Father raises six issues as stated in his brief:

1. Did the trial court err by denying the Father's Motions to Dismiss for fatal defects in the Petition.
2. Did the trial court err by allowing the trial to proceed when the relevant four-month window to determine visitation and support could not be determined-and was not provided to the Father-until the trial began.
3. Did the trial court err by concluding that there was clear and convincing evidence that the Father willfully failed to support the minor children.
4. Did the trial court err by concluding that there was clear and convincing evidence that the Father abandoned the minor children due to willful failure to visit.
5. Did the trial court err by concluding that clear and convincing evidence existed that the termination of the Father's parental rights was in the best interests of the minor children.
6. Did the trial court err by failing to prepare an order specifically listing the Court's conclusions of law and findings of fact-and instead filed a transcript of his oral findings of fact from the trial-as required by Tennessee Code Annotated § 36-1-113(k).

         III. Standard of Review

         Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only when a compelling interest exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove both the existence of 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 D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds for termination and that termination of parental rights is in the child's best interest must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that the truth of the facts asserted is highly probable . . . and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004), perm. app. denied (Tenn. July 12, 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id. at 653.

         In view of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review in Tennessee Rule of Appellate Procedure 13(d). As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). 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. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

         IV. Defects in the Petition

         In his first appellate issue, Father argues that Appellees' petition to terminate his parental rights was defective in that it failed to include information mandated by statute. Accordingly, Father contends that the trial court erred in denying his motion to dismiss the petition. To the extent this issue requires interpretation or application of statutes, it is a question of law, which we review de novo with no presumption of correctness regarding the trial court's findings. See Pickard v. Tennessee Water Quality Control Bd., 424 S.W.3d 511, 518 (Tenn. 2013) (citing Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 308 (Tenn. 2012)).

         Tennessee Code Annotated section 36-1-113 addresses the information that must be included in a petition to terminate parental rights and provides, in relevant part:

[d] (2)(A) The petition to terminate parental rights s ...

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