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In re B.A.

Court of Appeals of Tennessee, Jackson

November 12, 2019

In re B.A. et al.

          Assigned on Briefs September 4, 2019

          Appeal from the Chancery Court for McNairy County No. A-295 Martha B. Brasfield, Chancellor

         Father appeals the termination of his parental rights to two children, B.A. and K.A. The trial court considered six grounds for termination: (1) persistent conditions, pursuant to Tenn. Code Ann. § 36-1-113(g)(3)(A); (2) severe child abuse, pursuant to Tenn. Code Ann. § 36-1-113(g)(4); (3) sentencing to more than two years for conduct against a child, pursuant to Tenn. Code Ann. § 36-1-113(g)(5); (4) sentencing to ten years or more and child under eight years of age, pursuant to Tenn. Code Ann. § 36-1-113(g)(6); (5) non-compliance with a permanency plan, pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and (6) abandonment, pursuant to Tenn. Code Ann. § 36-1-113(g)(1). The court did not find sufficient evidence to support termination of father's parental rights for abandonment. The court found clear and convincing evidence on the other five grounds. By the same quantum of proof, the court also found that termination is in the children's best interest. Father appeals. We affirm.

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

          Jamie L. Lowrance, Selmer, Tennessee, for the appellant, J.A.

          Joe L. Brown, Savannah, Tennessee, for the appellees, T.M. and F.M.

          Melissa G. Stewart, Savannah, Tennessee, Guardian ad Litem for B.A. and K.A.

          No appearance by or on behalf of mother, L.P.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which Andy D. Bennett and Carma Dennis McGee, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE.

         I.

         J.A. is the biological father of the two children, B.A. and K.A. L.P. is the children's mother. F.M. is the children's maternal aunt; she is married to T.M. On October 16, 2014, Hardin County Juvenile Court granted F.M. legal and physical custody of B.A.; she and her husband have retained custody of B.A. since the entry of that order. On March 3, 2015, the court held that K.A. was dependent and neglected, and granted F.M. legal and physical custody of K.A.; she and her husband have retained custody of K.A. since the entry of that order.

         On April 21, 2015, B.A. was held to be a drug exposed child. Specifically, the court held that father was positive on a nail follicle drug test for amphetamine, methamphetamine, cocaine, and opiates. The court also found that B.A. was positive for cocaine and its metabolites on a hair follicle drug screen. Accordingly, the court held that, as to B.A., mother and father had committed severe child abuse. The trial court set child support for each parent in the amount of $430.00 per month, effective May 1, 2015. The court further set forth a list of requirements for the parents to complete prior to receiving additional visitation or custody.

         On August 15, 2017, T.M. and F.M. filed a petition to terminate mother and father's parental rights. On October 16, 2017, the court appointed a guardian ad litem. On April 24, 2018, T.M. and F.M. filed an amended petition. On June 25, 2018, the court entered a default judgment terminating mother's parental rights;[1] T.M. and F.M. were granted partial guardianship and legal custody of B.A. and K.A.

         On December 7, 2018, father filed his answer. On December 10, 2018, a hearing was held on the petition. In the resulting order terminating father's parental rights, the court held that the petitioners had proven by clear and convincing evidence five grounds for termination:

(a) Child removed from the home for 6 months and conditions persist § 36-1-113(g)(3)(A). [J.A.] testified that he had been on drugs since he was 12 years old and his drug use occurred before the children were born and continued after they were born.
(b) Severe child abuse or failure to protect any child § 36-1-113(g)(4). A certified copy of the Juvenile Court of Hardin County Tennessee in Docket Number 14-JV-1544 was admitted into evidence as exhibit #2 showing that [J.A.] tested positive for amphetamine, methamphetamine, cocaine and opiates. The Court found that the child, [B.A.], was positive for cocaine/metabolites on a hair follicle drug test and was subjected to severe abuse by both her parents.
(c) Sentenced to more than two (2) years for conduct against a child § 36-1-113(g)(5); [J.A.] testified that as a result of severe abuse as to [B.A.] he received and pled to a sentence of 8 years to serve one (1) year in either jail or rehab and the remainder on probation.
(d) Sentenced to ten (10) years or more and child under eight (8) years of age ยง 36-1-113(g)(6); [J.A.] testified that he was found guilty in Hardin County Tennessee of possessing a firearm while committing a dangerous felony and was sentence to serve 15 ...

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