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In re O.W.

Court of Appeals of Tennessee, Jackson

January 9, 2020


          Assigned on Briefs November 1, 2019

          Appeal from the Juvenile Court for Shelby County No. DD4263 Harold W. Horne, Special Judge

         Father appeals the termination of his parental rights, arguing that one ground for termination was not proven and that the trial court's ruling as to that ground did not reflect its independent judgment and did not include sufficient findings of fact and conclusions of law. After a thorough review of the record, we affirm five grounds for termination and vacate the ground of failure to manifest an ability and willingness to parent the children. We also affirm the trial court's finding that termination is in the child's best interest. As such, we affirm the termination of Father's parental rights.

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

          Brandi L. Heiden, Memphis, Tennessee, for the appellant, O.W., Sr.

          Herbert H. Slatery, III, Attorney General and Reporter; and Kathryn A. Baker, Senior Assistant Attorney General; for the appellee, Tennessee Department of Children's Services.

          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.



         I. Background

         This case involves the termination of the parent rights of Respondent/Appellant O.W., Sr., ("Father") to his two children, O.W., Jr., ("O.W."), born in 2013, and O.G., born in 2015.[1] The children were placed in the emergency custody of Petitioner/Appellee Tennessee Department of Children's Services ("DCS") on December 3, 2015 after two of their half-siblings told authorities that Father had sexually abused them. Father was incarcerated in December 2015 after being charged with rape of a child.

         On December 9, 2015, a pending petition to find another child of April G. ("Mother") dependent and neglected was amended to include O.W. and O.G.; the petition asked that temporary custody of the children be awarded to DCS. On the same day, a magistrate in the Shelby County Juvenile Court ("the trial court") entered a protective custody order that placed O.W. and O.G. in the temporary custody of DCS. A subsequent order from the trial court prevented Father from contacting both children. The children were declared dependent and neglected by the magistrate on April 15, 2016. While making that finding, the trial court also found that the two half-siblings were sexually assaulted, but did not determine whether Father perpetrated the abuse. The magistrate further recommended that O.W. and O.G. remain in DCS custody. A petition to rehear the matter was filed, and the children were again adjudicated as dependent and neglected by a special judge with the trial court on November 20, 2017. The children remained in DCS custody, and Father remained incarcerated at that time.

         While Father was incarcerated, two permanency plans were created in 2015 and 2016. In the first plan, Father was tasked with providing financial support and completing a parenting capacity assessment and a psychosexual analysis. In the second plan, Father was instructed to provide good-faith payments, clothes and gifts to his children. Father was not allowed to contact his children under either plan. Father signed DCS's Criteria and Procedures for Termination of Parental Rights form on April 14, 2016.

         Father was convicted on one count of rape of a child on April 19, 2018, for the rape of the half-sibling of O.W. and O.G. Father was later sentenced to serve thirty-five years in prison at 100% on June 29, 2018. A second count of rape of a child remained pending when the petition to terminate Father's parental rights was heard.

         DCS filed a petition to terminate the parental rights of Father and Mother on May 30, 2018.[2] As grounds for termination against Father, DCS initially alleged abandonment under Tennessee Code Annotated section 36-1-113(g)(1), severe child abuse under section 36-1-113(g)(4), failure to establish parentage under section 36-1-113(g)(9)(A)(vi), conviction of rape of a child under section 36-1-113(g)(10), severe child sexual abuse under section 36-1-113(g)(11), and failure to manifest an ability and willingness to assume custody under section 36-1-113(g)(14). An amended petition added two grounds tied to Father's 35-year prison sentence, specifically that Father was sentenced to prison for more than two years for conduct against a child's half-sibling, which is a termination ground under section 36-1-113(g)(5), and that Father was sentenced to ten or more years in prison and a child is less than eight years old when the sentence was entered, which is a ground for termination under section 36-1-113(g)(6).

         A hearing on the petition to terminate Father's parental rights occurred on April 25, 2019. Father was contacted telephonically from prison, but he declined to participate after an off-the-record discussion with his attorney. After the attorney-client conversation, the following discussion occurred on the record:

THE COURT: Anybody wish to start opening statements?
[Counsel for Father]: Yes, Your Honor. In light of the new information that was brought to my attention, my client has decided he does not want to participate this morning.
THE COURT: He does not have to.
[Counsel for Father]: Okay.
[Counsel for DCS]: The Department will request that he's the Department's first witness, and while he's definitely free to Plead the Fifth, we would request that he stay through that, Your Honor.
[Counsel for Father]: My client doesn't wish to participate, period. So, he's going to sign off.
THE COURT: Okay. [Father]?
[Father]: Yes, sir.
THE COURT: It's your wish not to participate in the proceedings at all or to give any testimony?
[Father]: Do what, sir?
THE COURT: You do not wish to be part of this trial?
[Father]: Yes, sir.
THE COURT: Okay. Then you're free to go. You have a good day, sir.
[Father]: You, too.

         Following this discussion, DCS announced it would drop the failure to establish parentage ground from its case against Father.

         Subsequently, DCS called its only witness, Starnisha Shelton, a DCS family service worker who testified about DCS's interactions with Father, O.W., and O.G., as well as Father's arrest and conviction on one count of rape of a child. In particular, Ms. Shelton testified that the children have never talked about Father in front of her and that the children had not interacted with him since December 2015. She believed the children had no attachment to Father. Ms. Shelton further testified that the children were "thriving" in their foster home and that their foster parent was willing to adopt them. On cross-examination, Ms. Shelton said that she had not spoken with Father and could not say whether he desired to parent or support his children.

         In an oral ruling, the trial court found that the record showed clear and convincing evidence that Father was found guilty of rape of a child, which was sufficient evidence of the grounds of severe abuse against a child and severe child sex abuse. The trial court also found Father's thirty-five year prison sentence established clear and convincing evidence that Father would be incarcerated for more than two years for severe child abuse against a half-sibling and evidence that Father was sentenced to serve more than 10 years in prison while both children were under eight years of age. Additionally, the trial court found clear and convincing evidence that Father had abandoned both children and shown a wanton disregard for their welfare.

         In conducting a best interests analysis, the trial court found Father made no adjustment in circumstances, failed to visit his children, and had no regular or meaningful relationship with his children. Additionally, the effect of removing children from their caretaker of three years would be harmful and unsafe for the children. Further, the trial court indicated that "the record should show as well on the front end that the father was contacted in prison, given an opportunity to participate in the proceedings and declined to participate or give any testimony." DCS offered to prepare a written order reflecting the trial court's finding.

         A written order terminating parental rights was entered by the trial court on May 28, 2019. The written order stated that the trial court found clear and convincing evidence of all the alleged grounds save one-"rape of child . . . from which crime the child was conceived" pursuant to section 36-1-113(g)(10). Father's counsel declined to sign the party-prepared order, which terminated Father's parental rights and gave partial guardianship of O.W. and O.G. to DCS. Father timely filed this appeal.[3]

         II. Issues Presented

         Father presents the following issues for review:

1. Whether the [DCS] failed to prove by clear and convincing evidence the required statutory element of the first prong of [Tennessee ...

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