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In re Jaydin A.

Court of Appeals of Tennessee, Nashville

December 12, 2019

IN RE JAYDIN A. ET AL.

          Assigned on Briefs November 1, 2019

          Appeal from the Juvenile Court for Wilson County No. 95-JC-2017-JT-9 Charles B. Tatum, Judge

         Father appeals the trial court's decision to terminate his parental rights on grounds of abandonment by an incarcerated parent and failure to manifest a willingness and ability to assume custody. The evidence at trial showed that due to Father's repeated criminal conduct, including two instances where Father fled the State to escape justice, he has had no contact with his daughter for approximately 95% of the child's life. Because we conclude that the evidence was clear and convincing as to both grounds for termination and best interest, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

          Sonia Jennings Boss, Nashville, Tennessee, for the appellant, Michael M.

          Herbert H. Slatery, III, Attorney General and Reporter; and Amber L. Seymour, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          W. Michael Kilgore, Mount Juliet, Tennessee, Guardian ad litem.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Charles D. Susano, Jr. and Andy D. Bennett, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         I. Background

         On December 5, 2017, Petitioner/Appellee the Tennessee Department of Children's Services ("DCS") filed a petition to terminate the parental rights of Respondent/Appellant Michael M.[1] ("Father") to his minor child, born in March 2017.[2] The petition alleged as grounds abandonment by an incarcerated parent and failure to manifest a willingness and ability to assume custody.

         A termination trial occurred on September 25, 2018. Much of the testimony concerned Father's criminal history and incarceration. Father was incarcerated at the time of trial and had been incarcerated continuously from April 16, 2018, until the date of trial.[3] Father testified that he would be automatically paroled in nine months so long as he completed a drug program. Father admitted that he was incarcerated on his eighteenth birthday and thereafter for the majority of the child's life.

         Specifically, at the time that the child was born, Father was on probation for possession of methamphetamine and possession of drug paraphilia. Approximately one month after the child's birth, Father chose to flee from Tennessee to Ohio, taking the child and her mother along. Father was apprehended in April 2017, and the child was taken into DCS custody at that time. Eventually, Father was transferred back to Tennessee, where he served approximately seven months in jail. Upon release, Father was subject to ankle monitoring. Sixteen days after his release, however, Father cut off his "ankle bracelet" and fled to Texas. He was apprehended thirteen days later and returned to Tennessee. Father further testified that in the eighteen months following the removal of the child, he was released and re-incarcerated on multiple occasions, with a total of three to four months out of incarceration, "maybe a month at a time." More specifically, Father testified that in the four months prior to the filing of the termination petition, he was incarcerated except for "a week or two at a time."

         Father admitted that a large portion of his criminal charges stemmed from Father's drug addiction, specifically to methamphetamine. Father testified that he is participating in a drug treatment program in prison. Father further testified that he is able to financially support the child due to a disability check and recently inheriting his parents' home. When the trial court questioned Father about whether Father would "squander [the inheritance] on drugs," Father replied that "I mean, I just got to take it one day at a time. I don't know if it's going to happen. I just got to put my faith in God and hope it don't and just try."

         The child was a little over one month old at the time of the removal. The child was thereafter placed in the same foster home with her half-sibling, where she remained at the time of trial, a period of approximately eighteen months. The DCS worker testified that the child is bonded with her foster family. The foster family hopes to adopt both the child at issue and her half-sibling. Following the removal of the child, Father had no contact with the child. Although the DCS worker testified that Father once texted her to ask for photographs of the child, Father denied this, stating that "I didn't have a conversation because I don't give people my phone numbers that's involved in stuff like that because that's a way for me to get caught. . . . DCS can rat you out to authorities, so why would I give my number to DCS?" Father did admit that one DCS worker did contact him at one point prior to the termination hearing; Father asked the DCS worker whether he should surrender his parental rights, and the DCS worker replied that she could not provide advice in that manner to Father.

         The trial court entered a final order granting DCS's petition on October 31, 2018. Specifically, the trial court ruled that DCS presented clear and convincing evidence of abandonment by an incarcerated parent through wanton disregard and failure to manifest the ability and willingness to assume custody, as well as that termination was in the child's best interest. Father appealed.

         II. Issues Presented

         On appeal, Father challenges only the best interest findings made by the trial court. Because of the duty imposed on this Court by the Tennessee Supreme Court in In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016), we will also consider whether the grounds found by the trial court are supported by sufficient evidence.

         III. Standard of Review

         The Tennessee Supreme Court has previously explained that:

A parent's right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578- 79 (Tenn. 1993). But parental rights, although fundamental and constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at 250. "'[T]he [S]tate as parens patriae has a special duty to protect minors. . . .' Tennessee law, thus, upholds the [S]tate's authority as parens patriae when interference with parenting is necessary to prevent serious harm to a child." Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d 507, 522-23 (Tenn. 2016) (footnote omitted). In Tennessee, termination of parental rights is governed by statute which identifies "'situations in which that 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 Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting 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))). Thus, a party seeking to terminate a parent's rights must prove: (1) existence of one of the statutory grounds and (2) 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).

         Considering the fundamental nature of a parent's rights, and the serious consequences that stem from termination of those rights, a higher standard of proof is required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party must prove statutory grounds and the child's best interests by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c); 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 evidence[, ]" and "produces in a ...


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