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In re Dylan S.

Court of Appeals of Tennessee, Knoxville

October 23, 2019

IN RE DYLAN S.

          Assigned on Briefs September 4, 2019

          Appeal from the Circuit Court for Monroe County No. V17320SJ. Michael Sharp, Judge

         This is a termination of parental rights case. Mother/Appellant appeals the trial court's termination of her parental rights to the minor child on the grounds of: (1) abandonment by willful failure to visit and to support, Tenn. Code Ann. § 36-1-113(g)(1); (2) persistence of the conditions that led to the child's removal, Tenn. Code Ann. § 36-1-113(g)(3); and (3) failure to manifest an ability and willingness to assume custody or financial responsibility for the child, Tenn. Code Ann. § 36-1-113(g)(14). Mother also appeals the trial court's determination that termination of her parental rights is in the child's best interest. Because Appellee did not meet her burden to show that Mother willfully failed to support the child, and because Appellee did not meet her burden to show proof of an order in which the child was adjudicated dependent and neglected, we reverse the trial court's findings as to these grounds. We affirm the trial court's termination of Mother's parental rights on the grounds of abandonment by willful failure to visit and failure to manifest an ability and willingness to assume custody or financial responsibility, and on its finding that termination of Appellant's parental rights is in the child's best interest.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in Part; Affirmed in Part; and Remanded

          Chessia A. Cox, Athens, Tennessee, for the appellant, Tiffany S.[1]

          Wencke West, Cleveland, Tennessee, for the appellees, Marla H.

          Kenny Armstrong, J., delivered the opinion of the court, in which Thomas R. Frierson, II, and W. Neal McBrayer, JJ., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Background

         Dylan S. ("Child") was born in December 2007 to Tiffany S. ("Appellant," or "Mother") and Kenneth R. ("Father").[2] Mother and Father were never married and have been in an on-again-off-again relationship for approximately ten years. On June 25, 2008, Marla H., the Child's maternal grandmother, filed a petition for temporary custody of the Child in the Hamilton County Juvenile Court. Marla H. filed the petition in response to an open Child Protective Services investigation alleging instability in the parents' home and arrest of Father for drug related charges. The juvenile court removed the Child from Mother's custody and placed him with Marla H. ("Appellee") and her husband, Justin H. Child has lived with Appellee and Justin H. since 2008.

         On October 28, 2008, the juvenile court granted temporary custody to Appellee and Justin H. and set the dependency and neglect hearing for November 25, 2009. Appellee avers that the juvenile court found the Child to be dependent and neglected based on drug use by the parents, domestic violence between the parents, and instability of income and housing. However, as discussed, infra, our record does not contain the juvenile court's adjudicatory order on dependency and neglect. The record does reveal that Mother has a history of drug use and criminal activity. On March 8, 2017, Mother pled guilty to the charge of possession of drug paraphernalia in Hamilton County. In addition, Mother has been a victim of domestic violence from Father.[3]

         On December 15, 2017, Appellee and Justin H. filed a petition for adoption and to terminate Mother's parental rights. As grounds for termination, Appellee and Justin H. averred that Appellant: (1) abandoned the Child by willful failure to visit; (2) abandoned the Child by willful failure to support; (3) failed to remedy the conditions that led to the Child's removal; and (4) failed to manifest an ability and willingness to assume custody or financial responsibility. Appellee and Justin H. further averred that termination of Mother's parental rights was in the Child's best interest. On her pauper's oath, the trial court appointed an attorney to represent Appellant and appointed a guardian ad litem for the Child. Mother filed an answer to the petition, wherein she denied the material allegations made therein and contested that termination of her parental rights was in the Child's best interest.

         The trial court heard the petition for termination of parental rights on August 1, 2018. Although her court appointed attorney was present, Mother did not appear. By order of October 15, 2018, the trial court terminated Mother's parental rights on all grounds averred in Appellee's petition and on its finding that termination of Mother's parental rights was in the Child's best interest. Mother appeals.

         II. Issues

         There are two dispositive issues:

1.Whether there is clear and convincing evidence to support any of the grounds the trial court relied on in terminating Mother's parental rights?
2. If so, whether there is clear and convincing evidence to support the trial court's determination that termination of Mother's parental rights is in the Child's best interest?

         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.

         In light 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). On appeal, we review the trial court's findings of fact "de novo on the record, with a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise." In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P. 13(d). We must then make our "own determination regarding whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, provide clear and convincing evidence that supports all the elements of the termination claim." In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010). We review the trial court's conclusions of law de novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007).

         IV. Grounds for Termination of Parental Rights

         Although only one ground must be proven by clear and convincing evidence in order to terminate a parent's rights, the Tennessee Supreme Court has instructed this Court to review every ground relied upon by the trial court to terminate parental rights in order to prevent "unnecessary remands of cases." In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010). Accordingly, we will review all of the foregoing grounds.

         A. Abandonment

         We begin with the ground of abandonment generally. In pertinent part, Tennessee Code Annotated section 36-1-113(g) provides:

(g) Initiation of termination of parental or guardianship rights may be based upon any of the grounds listed in this subsection (g). The following grounds are cumulative and nonexclusive, so that listing conditions, acts or omissions in one ground does not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred . . .

Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102 defines "abandonment," in relevant part, as follows:

(1)(A) For purposes of terminating the parental or guardian rights of a parent or parents or a guardian or guardians of a child to that child in order to make that child available for adoption, "abandonment" means that:
(i) 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 either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child;

Tenn. Code Ann. § 36-1-102(1)(A)(i)(2017).

         In In re Audrey S., this Court discussed willfulness in the context of the abandonment ground:

The concept of "willfulness" is at the core of the statutory definition of abandonment. A parent cannot be found to have abandoned a child under Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either "willfully" failed to visit or "willfully" failed to support the child for a period of four consecutive months. . . . In the statutes governing the termination of parental rights, "willfulness" does not require the same standard of culpability as is required by the penal code. Nor does it require malevolence or ill will. Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. Conduct is "willful" if it is the product of free will rather than coercion. Thus, a person acts "willfully" if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing . . . .
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 ...

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