IN RE O.W., JR. ET AL.
Assigned on Briefs November 1, 2019
from the Juvenile Court for Shelby County No. DD4263 Harold
W. Horne, Special Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed in Part; and Vacated in Part
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.
Steven Stafford, P. J., W.S., delivered the opinion of the
court, in which Charles D. Susano, Jr., and Andy D. Bennett,
STEVEN STAFFORD, JUDGE.
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. 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.
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.
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.
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.
filed a petition to terminate the parental rights of Father
and Mother on May 30, 2018. 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).
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
[Father]: You, too.
this discussion, DCS announced it would drop the failure to
establish parentage ground from its case against Father.
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.
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.
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
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.
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