In Re Kendal A. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 21, 2014 Session
IN RE KENDAL A.
Appeal from the Chancery Court for Obion County
No. 30601 W. Michael Maloan, Chancellor
No. W2014-00638-COA-R3-PT - Filed November 17, 2014
The trial court terminated Mother’s parental rights on the grounds of abandonment by an
incarcerated parent and severe child abuse, and found that termination of Mother’s rights was
in the child’s best interest. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed.
A RNOLD B. G OLDIN, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD,
P.J.,W.S. and R ICHARD H. D INKINS, J. joined.
James T. Powell, Union City, Tennessee for the appellant, Kristy W.
Robert E. Cooper, Jr., Attorney General and Reporter; Ryan L. McGehee, Assistant Attorney
General, for the appellee, State of Tennessee, Department of Children’s Services.
MEMORANDUM OPINION 1
The facts giving rise to this termination of parental rights action are largely
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the
actions of the trial court by memorandum opinion when a formal opinion would have no precedential
value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
OPINION”, shall not be published, and shall not be cited or relied on for any reason in any unrelated
case.
undisputed. Kendal A. is a non-marital child born in July 2012.2 Both Mother and Kendal
tested positive for “benzos” when Kendal was born. In August 2012, Mother was arrested
for DUI and reckless endangerment while Kendal was a passenger in Mother’s vehicle. She
subsequently pled guilty to the DUI and was sentenced to 11 months and 29 days, to serve
30 days. Mother’s driver’s license also was revoked.
In November 2012, the Department of Children’s Services (“DCS”) filed a petition
for dependency and neglect in the Juvenile Court of Obion County against Mother, Kendal’s
father (“Father”) and the father of Mother’s older child K. W., who was born in October
2005. Following appointment of attorneys to represent the parents and a guardian ad litem,
the petition was heard in February 2013. By order entered March 5, 2013, the juvenile court
found that there was a danger of immediate harm to the children due to dependency and
neglect, but that there was a less drastic alternative to removal at that time. The juvenile
court ordered Mother and Father to submit to alcohol and drug assessments and to follow all
recommendations. It also ordered Mother to submit to random drug screens due to her
involvement in a methadone program.
In the meantime, DCS received a referral in January 2013 and visited Mother’s home
in February 2013. Mother refused to submit to a drug screening. When DCS visited again
in March 2013, Mother tested positive for morphine and opiates. She was arrested for
possession of a schedule II drug while the DCS investigator was present in Mother’s home
and Kendal was placed in State custody. On March 19, 2013, DCS filed a second petition
for dependency and neglect and sought an award of temporary legal custody of K. W. to her
father and of Kendal to DCS. The trial court entered a protective custody order on March
19, 2013; K. W. was placed in the custody of her father, and Kendal was placed in DCS
custody. In April, Mother and Kendal tested positive for cocaine and benzoylecgonine.
Mother and Father were arrested and charged with attempted aggravated child neglect for
allowing Kendal to be exposed to cocaine. Mother pled guilty and was incarcerated from
April 16 through August 9, 2013.
In June 2013, Mother and Father stipulated in the Obion County Juvenile Court that
Kendal was dependent and neglected, but denied allegations of severe child abuse. In July
2013, while Mother and Father were incarcerated, DCS filed a petition in the Chancery Court
of Obion County to terminate Mother’s and Father’s parental rights on the grounds of
abandonment by an incarcerated parent and severe child abuse. DCS further alleged that
termination of parental rights was in Kendal’s best interest. In September 2013, Mother
signed a treatment plan agreeing to complete a residential treatment program, to follow
recommendations to address her substance abuse issues, to complete aftercare services, and
to abstain from drug and alcohol use. She entered a rehabilitation program in October 2013
and was successfully discharged in November 2013. However, she failed to attend aftercare
2
In cases involving minor children, it is this Court’s policy to redact names to protect the
children’s identity.
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rehabilitation or attend any AA or NA meetings. Following a hearing on October 21, 2013,
the trial court terminated Father’s parental rights on the grounds of severe child abuse and
abandonment by an incarcerated parent.
The trial court heard the petition to terminate Mother’s parental rights on March 5,
2014. Brittany Hudson (“Ms. Hudson”), the DCS case manager who signed DCS’s petition
to terminate parental rights, left DCS employment in December 2013 and did not testify at
trial. DCS witnesses included Brenda Scott (“Ms. Scott”), the investigator who was present
in Mother’s home when she was arrested in March 2013; Jill Ferrie (“Ms. Ferrie”), a DCS
investigator who began working with Mother in August 2012; and Jack Horton (“Mr.
Horton”), the case manager who replaced Ms. Hudson. Additionally, Lisa Piercey, M.D.
(“Dr. Piercey”) testified by deposition that cocaine was found in a hair follicle drug screen
from Kendal. Mother testified that she was not currently in a position to care for Kendal;
that she was unemployed; and that she was living with Father, whose parental rights were
terminated in November 2013.3 She further testified that she had no transportation and that
she had not begun aftercare rehabilitation programs or attended any AA/NA meetings.
The trial court found that clear and convincing evidence supported termination of
Mother’s parental rights on the grounds of abandonment by an incarcerated parent and severe
child abuse. It also found that termination of Mother’s parental rights was in Kendal’s best
interest. The trial court entered final judgment in the matter on March 17, 2014, and Mother
filed a timely notice of appeal to this Court.
Issues Presented
Mother presents the following issues for our review, as stated by Mother in her brief:
1) Did the trial court err in allowing evidence to be entered over the objection
of counsel for the petitioner?
2) Did the trial court err in allowing the proceedings to go forward even
though the petitioner was not present for the State?
Standard of Review
Appellate review of the findings of facts of a trial court sitting without a jury is de
novo upon the record with a presumption of correctness unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); In Re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010)
(citation omitted). Insofar as a factual finding is based upon the trial court’s assessment of
witness credibility, we will not reverse that finding absent clear and convincing evidence to
the contrary. In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005). No presumption
of correctness attaches, however, to a trial court’s conclusions of law. Tenn. R. App. P.
3
Father did not appeal termination of his parental rights.
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13(d); Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 414 (Tenn. 2013). Whether the
facts of the case support a statutory ground for termination of parental rights is a question of
law that we review de novo with no presumption of correctness. In re Adoption of A.M.H.,
215 S.W.3d 793, 810 (Tenn. 2007) (citation omitted).
Tennessee Code Annotated § 36–1–113 governs the termination of parental rights.
The Code provides, in pertinent part:
(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that the grounds
for termination of parental or guardianship rights have been established; and
(2) That termination of the parent’s or guardian’s rights is in the best interests
of the child.
Tenn. Code Ann. § 36–1–113(c)(2010). Accordingly, the trial court must determine whether
clear and convincing evidence supports a finding that 1) the parent’s actions constitute a
statutory ground for termination and 2) termination of parental rights is in the child’s best
interest. Tenn. Code Ann. § 36–1–113(c)(2010). Upon review, we must distinguish between
the trial court’s specific findings of fact and “the combined weight of these facts.” In re
M.J.B., 140 S.W.3d 643, 654 n. 35 (Tenn. Ct. App. 2004) (citing In re Valentine, 79 S.W.3d
539, 548-49 (Tenn. 2002)). Although we presume the trial court’s specific findings of fact
to be correct if supported by a preponderance of the evidence, we “must then determine
whether the combined weight of these facts provides clear and convincing evidence
supporting the trial court’s ultimate factual conclusion.” In re Michael C. M., No.
W2010–01511–COA–R3–PT, 2010 WL 4366070, at *2 (Tenn. Ct. App. Nov.5, 2010).
Discussion
The trial court terminated Mother’s parental rights on the grounds of abandonment by
an incarcerated parent as provided by Tennessee Code Annotated § 36-1-113(g)(1) and severe
child abuse as provided by Tennessee Code Annotated § 36-1-113(g)(4). The Code defines
abandonment, in relevant part, to mean that:
A parent or guardian is incarcerated at the time of the institution of an action
or proceeding to declare a child to be an abandoned child, or the parent or
guardian has been incarcerated during all or part of the four (4) months
immediately preceding the institution of such action or proceeding, and either
has willfully failed to visit or has willfully failed to support or has willfully
failed to make reasonable payments toward the support of the child for four (4)
consecutive months immediately preceding such parent’s or guardian’s
incarceration, or the parent or guardian has engaged in conduct prior to
incarceration that exhibits a wanton disregard for the welfare of the child[.]
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Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2014). Section 37-1-102(b)(21) (2014) defines
severe child abuse as:
(A)(i) The knowing exposure of a child to or the knowing failure to protect a
child from abuse or neglect that is likely to cause serious bodily injury or death
and the knowing use of force on a child that is likely to cause serious bodily
injury or death;
(ii) “Serious bodily injury” shall have the same meaning given in
§ 39-15-402(d).
(B) Specific brutality, abuse or neglect towards a child that in the opinion of
qualified experts has caused or will reasonably be expected to produce severe
psychosis, severe neurotic disorder, severe depression, severe developmental
delay or intellectual disability, or severe impairment of the child’s ability to
function adequately in the child's environment, and the knowing failure to
protect a child from such conduct;
(C) The commission of any act towards the child prohibited by §§ 39-13-502
-- 39-13-504, 39-13-515, 39-13-522, 39-15-302, 39-15-402, and 39-17-1005
or the knowing failure to protect the child from the commission of any such act
towards the child; or
(D) Knowingly allowing a child to be present within a structure where the act
of creating methamphetamine, as that substance is identified in
§ 39-17-408(d)(2), is occurring[.]
It is undisputed that Mother was incarcerated when DCS filed its petition to terminate
her parental rights in July 2013. The trial court found that Mother abandoned Kendal for
purposes of the section where Mother had engaged in conduct prior to her incarceration that
exhibited a wanton disregard for Kendal’s welfare. The trial court found that Mother used
illegal drugs before and after Kendal’s birth, that Kendal was born with cocaine in her
system, and that drug screens revealed that Kendal was exposed to cocaine. It also is
undisputed that Mother operated her vehicle while intoxicated and/or under the influence of
illegal substances while Kendal was in the vehicle; that Father’s parental rights were
terminated on the grounds of abandonment by an incarcerated parent and severe child abuse
and that Father did not appeal termination; and that Mother is unemployed and living with
Father.
We observe that Mother does not raise the trial court’s factual findings or its
conclusion that DCS carried its burden to demonstrate grounds by clear and convincing
evidence as issues in her brief to this Court. Rather, she asserts 1) that the trial court erred
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by permitting DCS to question Mother regarding whether she had been arrested for having
methamphetamine in her purse where the relevant arrest warrant had been dismissed and 2)
by permitting the case to be heard without Ms. Hudson’s participation. Mother’s argument,
as we understand it, is that evidence of the allegedly dismissed arrest warrant was prejudicial
and that she was denied her right to question Ms. Hudson, who signed the petition to
terminate Mother’s parental rights but did not testify at trial.
We turn first to Mother’s assertion that the trial court erred by allowing DCS to
question Mother with respect to whether she was arrested for having methamphetamine in
her purse. Under Rule 402 of the Tennessee Rules of Evidences, relevant evidence is
generally admissible, while irrelevant evidence is not. The Rules of Evidence define
“relevant evidence” as “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it
would be without the evidence .” Tenn. R. Evid. 401. We review a trial court’s evidentiary
decisions under an abuse of discretion standard. Biscan v. Brown, 160 S.W.3d 462, 468
(Tenn. 2005) (citation omitted). A trial court abuses its discretion “only when it ‘applie[s]
an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that
cause[s] an injustice to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn.2001)(quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999)). This standard does
not allow an appellate court to substitute its judgment for that of the trial court. Id. (citing
Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.1998)). Rather, the abuse of discretion
standard “‘reflects an awareness that the decision being reviewed involved a choice among
several acceptable alternatives,’” and therefore “‘envisions a less rigorous review of the
lower court’s decision and a decreased likelihood that the decision will be reversed on
appeal.’” Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn.2010) (quoting Lee Medical,
Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.2010)).
Upon review of the transcript of the March 2014 hearing of this matter, we observe
that counsel for DCS asked Mother whether she recalled testing positive for
methamphetamine and morphine, and stated, “That was also the day you were arrested for
having methamphetamine in your purse.” Mother stated, “Yes[,]” and counsel objected on
the ground that the warrant stated that it was dismissed. The trial court noted that Mother
would have an opportunity to cross-examine on the matter, and no further questioning ensued
with respect to the arrest warrant.
Without holding that the trial court erred by admitting the March 2013 arrest warrant
into evidence, to the extent that the trial court arguably so erred the error was harmless in
light of the undisputed facts of this case and the totality of the evidence. Mother testified that
she was arrested in April 2013 and charged with attempted aggravated child neglect, and that
she pled guilty to that offense. Dr. Piercey testified by deposition that she examined Kendal
on May 20, 2013; that a hair follicle drug screen of Kendal in April 2013 was positive for
cocaine and benzoylecgonine; that exposure to cocaine by an infant carries serious short-
term, medium-term and long-term health risks, including stunted organ growth and death;
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and that the fact that Kendal was not currently displaying any symptoms did not negate the
dangers of being exposed to cocaine as an infant. Dr. Piercey testified:
My assessment for this child based on my medical opinion was severe physical
abuse secondary to drug exposure and drug endangerment. I further opined
that the direct exposure to the use of cocaine may cause long term impairment
of neurological, behavioral, respiratory and/or other organ development. My
opinion was that of severe physical abuse. From a medical standpoint, that
means life threatening or potentially life altering.
We discern no reversible error on the part of the trial court.
We next turn to Mother’s assertion that the trial court erred by allowing the matter to
go forward without the participation of Ms. Hudson, who signed the July 2013 petition to
terminate Mother’s parental rights. In her brief, Mother asserts that Ms. Hudson was the
“petitioner” in this matter and that Mother was denied her right to cross-examine Ms. Hudson
where Ms. Hudson did not testify at trial. Mother further asserts that Mr. Horton had no
personal knowledge of the events leading to DCS’s petition to terminate Mother’s rights, and
that he therefore was not a proper witness.
Contrary to Mother’s assertion, DCS is the petitioner in this matter. Ms. Hudson is
not. Although Ms. Hudson signed DCS’s petition to terminate Mother’s parental rights, she
did so not in her personal capacity but as a representative of DCS. We additionally note that,
contrary to Mother’s assertion in her brief, Mother was not deprived of her right to cross-
examine a witness against her where Ms. Hudson did not testify in this matter. The
allegations contained in DCS’s petition do not constitute evidence or testimony, and DCS had
the burden of proof to demonstrate grounds for termination. To the extent that Mother
asserts that Ms. Hudson was an indispensable witness in this case, we observe that Mother
did not seek to subpoena Ms. Hudson. Additionally, regardless of Mr. Horton’s personal
knowledge of the events giving rise to this action, or lack thereof, Ms. Scott and Ms. Ferrie
also testified at the hearing of this matter, and Dr. Piercey testified by deposition. The
combined testimony of the witnesses was sufficient to demonstrate grounds for termination
notwithstanding the absence of Ms. Hudson. This issue is without merit. Upon review of
the record transmitted to this Court, moreover, we affirm the trial court’s determination that
termination of Mother’s parental rights is in Kendal’s best interests.
Holding
In light of the foregoing, we affirm the judgment of the trial court. Costs on appeal
are taxed to Mother. Because Mother is proceeding in forma pauperis in this appeal,
execution may issue for costs if necessary. This matter is remanded to the trial court for
enforcement of the judgment and the collection of costs.
_________________________________
ARNOLD B. GOLDIN, JUDGE
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