IN RE JUSTINE J. ET AL.
Session August 20, 2019
from the Chancery Court for Hawkins County No. 2017-AD-39
Douglas T. Jenkins, Chancellor
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Vacated and Remanded
Kathleen Skelton, Rogersville, Tennessee, for the appellant,
J. Gerald T. Eidson, Rogersville, Tennessee, for the
appellees, Dena J., and Thomas J.
Armstrong, J., delivered the opinion of the court, in which
Charles D. Susano, Jr. and Thomas R. Frierson, II, JJ.,
(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"). 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").
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.
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. 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.
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.
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
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).
Standard of Review
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
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.
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.
Defects in the Petition
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)).
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