In re: M.E.A. by: Elizabeth Joy Argo Exum v. Kimberly Darlene Moody ( 2004 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 20, 2004 Session
IN RE: M.E.A. BY: ELIZABETH JOY ARGO EXUM, ET AL. v.
KIMBERLY DARLENE MOODY, ET AL.
A Direct Appeal from the Juvenile Court for Madison County
No. 37-31,926 The Honorable Larry McKenzie, Judge
No. W2003-01669-COA-R3-PT - Filed February 19, 2004
This is an appeal of a termination of parental rights case. Appellant mother contends that the
petitioners have no standing to bring the petition and also that the petitioners failed to prove by clear
and convincing evidence the grounds for termination and that the termination was in the best interest
of the child. We affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY M. KIRBY , J., joined.
David W. Camp, Jackson, For Appellant, Kimberly Moody
Catherine B. Clayton, Jackson, For Appellees, Elizabeth Joy Argo Exum and James L.Exum
OPINION
This is a termination of parental rights case. On December 13, 1999, M.E.A. (the “Child”)
was born to Kimberly Darlene Moody (“Moody,” “Mother,” or “Appellant”) and her boyfriend,
David Thomas Argo (“Argo,” or “Father”). At the time of M.E.A.’s birth, Moody was married to
Randy Thomas Moody. Randy Thomas Moody was incarcerated at the time of M.E.A.’s birth and
he remained so at the time of trial. M.E.A.’s birth certificate specifically lists Argo as the father.
Both Moody and Argo have a long history of arrests and other problems associated with alcohol and
drug abuse.1
1
In addition to the Carroll County arrest for DUI and child endangerment, and the March 18, 2000 public
intoxication arrest, which led to M oody’s enrollment in the drug and alcohol program at St. Francis (both discussed
infra), there have been numerous complaints and arrests involving Moody and Argo. On September 24, 2000, Moody
(continued...)
Upon the birth of M.E.A., she was in the physical custody of Moody and Argo. Since Moody
and Argo had no place to live or means to provide for the child, Argo’s sister, Elizabeth Joy Argo
Exum, and her husband, James F. Exum (“Exums,” or “Appellees”) helped with housing and other
needs. Moody and Argo moved, with M.E.A., into a mobile home at Rolling Acres Estates in
Jackson, Tennessee. Shortly thereafter, Moody’s sister, Carolyn Cunningham, and her husband,
David Cunningham, also moved into the trailer. When the Child was less than one month old,
Moody was arrested in Carroll County, Tennessee for driving under the influence. She was also
cited with child endangerment because M.E.A. was with her in the vehicle and was unrestrained.
Moody appeared in court on March 3, 2000 and was convicted on both offenses. On March 18,
2000, Moody was again arrested in Carroll County for public intoxication. Moody subsequently pled
guilty to the offense and paid a fine. Moody then enrolled in an inpatient drug and alcohol program
at St. Francis Hospital in Memphis.
On March 30, 2000, Carolyn Cunningham filed a Sworn Petition in the Madison County
Juvenile Court alleging that the then three-month-old Child was dependent, and requesting
temporary custody of M.E.A. because “the mother is in detox at St. Francis Hospital for drugs and
alcohol.” On or about September 11, 2000, Joy Exum received a call at her home and was advised
that Moody and her family had no money for food and necessities for the Child. Joy Exum bought
those items and met Moody’s mother, Judy Dunning, and her sister, Carolyn Cunningham, at Milan,
Tennessee to give them those items. According to Joy Exum’s testimony, the Child appeared to be
unkempt and unclean at that meeting and Moody was not present.
On September 19, 2000, the Exums filed a Petition for Custody and obtained an emergency
Order granting them temporary custody. On December 5, 2000, a full preliminary hearing was held,
at which time the Madison County Juvenile Court continued custody with the Exums. On September
21, 2001, a Custody Order was entered, which continued custody with the Exums following a full
adjudicatory and dispositional hearing on May 23, 2001. At the hearing, the court ordered a
Permanent Parenting Plan, which was filed on September 21, 2001. The Parenting Plan allowed
1
(...continued)
signed a domestic assault warrant in Madison County, Tennessee against Argo. On November 10, 2000, Moody
requested that the charge be dismissed, explaining that “both parties had been drinking heavily and that she [didn’t] have
a clear recollection of the events.” On M ay 23, 2001, the day before she was scheduled to appear in court for a custody
hearing, Moody and Argo were involved in another altercation in Madison County, which resulted in Argo pleading
guilty to aggravated assault. Again, Moody signed a statement that she and Argo had been drinking heavily at the time
of the incident and did not recall any threat with a knife. On M arch 25, 2002, Moody was arrested again in Carroll
County for public intoxication at the Hitching Post and Paul’s Pool Room. She failed to appear in court for this charge.
On May 28, 2002, Moody was arrested in Henderson County for public intoxication. She pled guilty and paid a fine.
On June 24, 2002, Moody was arrested in Carroll County for public intoxication, for which she pled guilty. A criminal
warrant was issued against Moody on June 24, 2002 for assault on a M s. Teresa Small. Moody failed to appear in court
for this charge. On July 30, 2002, Moody was arrested in Henderson County on three charges: possession of a weapon
while under the influence, public intoxication, and reckless endangerment for shooting a gun in the city over an inhabited
area. These charges were pending at the time of the hearing in this matter.
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Moody and Argo visitation with M.E.A. under the supervision of Moody’s mother, Judy Dunning.
The Parenting Plan also indicated that Moody and Argo were to complete the following:
1. Within 30 days of the date of the entry of the Order on the
Adjudicatory and Dispositional Hearing in this case (The Order)
which was heard on May 23, 2001, the Parents, David Thomas Argo
and Kim Moody will begin to attend parenting classes at the Carl
Perkins Center for Child Abuse and complete 40 hours of classes
within 90 days after the date of the entry of The Order. They will
provide the Court or CASA a certificate of attendance or other
evidence of completion of this requirement.
2. David Thomas Argo and Kim Moody will contract for and begin
alcohol and drug abuse weekly counseling sessions with a licensed
counselor trained in this field, within 30 days from the date of the
entry of The Order. They will continue to attend and participate in
said sessions until the counselor decides that counseling is no longer
necessary. They will provide the Court or CASA a certificate of
attendance or other evidence of completion of this requirement.
3. David Thomas Argo and Kim Moody will not consume alcohol of
any kind, or drugs (other than over the counter medications and
properly prescribed medications) at any time.
4. Neither Parents, Mrs. Judy Dunning, nor Mr. and Mrs. Exum shall
smoke or allow others to smoke in the presence of the child, or in
manner [a] where the child is subjected to second hand smoke.
* * *
[12]. David Thomas Argo and Kim Moody will attend at least three
AA meetings per week beginning by October 1, 2001 and provide
evidence of attendance to the Court or CASA.
* * *
III. FINANCIAL SUPPORT FOR CHILD
A. CHILD SUPPORT PER CHILD SUPPORT
GUIDELINES OR DEVIATIONS:
...The mother, Kim Moody shall pay child support to Mr. and Mrs.
Exum, when she becomes employed, in the amount of 21% of her net
income, beginning with the first paycheck she receives until further
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order of the Court. Mrs. Moody will provide the Court with evidence
of her earnings at the time she becomes employed.
On January 10, 2002, the Exums filed a “Petition for Termination of Parental Rights” (the
“Petition”) against Moody, Argo, and Randy Thomas Moody. The Petition reads, in relevant part,
as follows:
29. Termination of Respondent’s parental rights is sought based
upon, as alternatives to one another, the following grounds which
petitioners are prepared to prove by clear and convincing evidence.
30. As to KIMBERLY DARLENE MOODY;
a. Abandonment by KIMBERLY DARLENE MOODY,
as defined in TCA 36-1-102, has occurred.
b. MOODY is able bodied, mentally competent and well
able to secure at lease minimum wage employment
and provide support for the Child. On information
and belief, MOODY has been employed and is
currently employed. MOODY is under a Court Order
to provide support for the Child, but has willfully
failed to make reasonable payments for the Child’s
support for more than four (4) months immediately
preceding the filing of this Petition. The Child has
been in the custody of the Petitioners since September
19, 2000.... MOODY has at all times since September
19, 2000, been able to provide support for the Child,
but has willfully failed to do so, or in the alternative,
any support provided was token support and
insignificant given her means or ability to support.
MOODY has willfully failed to visit said Child more
than token visitations, defined as nothing more than
perfunctory visitations or visitations of such an
infrequent nature or of such short duration as to
merely establish minimal or insubstantial contact with
the Child.
c. The Child has been removed from the home of the
parent or guardian by Order of the Court for a period
of six months and the conditions which led to the
Child’s removal, or other conditions, which in all
reasonable probability would cause the Child to be
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subjected to further abuse or neglect and which,
therefore, pre[vent] the Child’s safe return to the care
of the parents or guardians, still persists; further, there
is little likelihood that these conditions will be
remedied at an early date so that the Child can be
safely returned to the parents in the near future; and
the continuation of the parent and child relationship
greatly diminishes the Child’s chances of early
integration into a safe, stable and permanent home. In
support of this allegation, Petitioners state the
following:
(1) MOODY has no suitable residence available to
properly care for and nurture this Child.
(2) MOODY has no employment or income of any
substantial nature with which to properly support the
Child and see to her daily physical and medical needs
under the current circumstances.
(3) MOODY has not acquired, nor does it appear she
will acquire, requisite parenting skills necessary to
properly care for a young child and to provide
fundamental care, which constitutes a condition which
prevents safe return of the Child to her care.
(4) MOODY continues to consume and abuse alcohol
and/or other drugs in violation of the Court Ordered
Parenting Plan.
(5) MOODY has failed to comply with the Court
Ordered Parenting Plan, in that she has not contacted
or begun weekly alcohol and drug abuse counseling
sessions with a licensed counselor trained in that field,
within thirty days of the entry of the Order on
September 21, 2001. Such counseling was to
continue until the counselor decided counseling was
no longer necessary. MOODY has not provided the
Court or CASA a Certificate of Attendance or other
evidence of completion of this requirement.
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(6) MOODY has violated the Court Ordered Parenting
Plan by smoking in the presence where the Child is
subjected to second hand smoke.
* * *
(8) MOODY has violated the Court Ordered Parenting
Plan by failing or refusing to attend at lease three
Alcoholics Anonymous meetings per week, beginning
October 1, 2001 and provide evidence of attendance
to the Court or CASA.
(9) MOODY’S lifestyle and living circumstances
were, and continue to be such that the Child would be
in a very unstable household, and would have little
likelihood of living in the same household for any
length of time, thereby negating any possibility that
the Child can achieve any continuity in her life.
* * *
(11) MOODY has no stable relationship with the
Child’s biological father, DAVID THOMAS ARGO,
and the parties no longer reside in the same
household, and there has been little, if any, effort on
MOODY’S part to reunite with the father in an
attempt to establish and maintain for any length of
time, a nuclear household.
On January 10, 2002, the Exums also filed a Motion to Suspend Visitations, which asserts,
inter alia, that Moody was still abusing alcohol, had failed to show any stability in her lifestyle, and
that, if visitation was not suspended, irreparable harm would come to the Child. On January 10,
2002, an Order was entered suspending Moody and Argo’s visitation with M.E.A.
On January 29, 2002, a hearing to determine eligibility for appointed counsel was held upon
notice to all Defendants of their rights to be represented by appointed counsel if they were indigent.
Argo did not appear at the hearing. Randy Thomas Moody did not appear because he was in prison,
but he did correspond with the court in writing that the child “was not his child and that he was
satisfied to allow the court to do whatever was best for the child.” He did not request counsel. 2
2
On March 5, 2002, the Madison County Juvenile Court entered Orders terminating Argo and Randy Thomas
Moody's parental rights and they are not parties to this appeal.
-6-
Moody appeared and requested counsel. By Order of March 25, 2002, counsel was appointed to
represent Moody.
The hearing on the termination of Moody’s parental rights was scheduled for June 4, 2002.
Moody filed her Answer to the Petition to Terminate Parental Rights on June 3, 2002. A hearing on
the merits was held over three days: June 4, 2002, August 15, 2002, and September 10, 2002. After
the first witness had finished, the attorneys notified the court of the need for a Guardian Ad Litem.
Proof was postponed until a Guardian Ad Litem was appointed and allowed reasonable opportunity
to review the case.3
During the course of the trial, Joy Exum testified that it was not her intent to adopt M.E.A.
At that time, counsel for Moody moved the court to dismiss the case for lack of standing pursuant
to T.C.A. 36-1-113(b). The court denied the motion, which was renewed at the close of the
Petitioners’ proof and again at the close of all proof. On September 26, 2002, the Exums filed a
Motion to Amend Pleadings, seeking to add as Petitioners either the Guardian Ad Litem or the
“perspective [sic] adoptive parents,” who were not named in that Motion or at the hearing. A
hearing on this Motion was held on October 22, 2002. On October 25, 2002, the trial court signed
an “Order on Motion to Amend Pleadings,” which reads, in pertinent part, as follows:
After review of the Motion to Amend the Pleadings, and the
statements of counsel, the Court is of the opinion that the Motion
should be granted.
It is therefore, Ordered, Adjudged, and Decreed by the Court
that the Motion to Amend the Pleadings be and the same [is] hereby
granted. The Petitioners may add as additional Peitioners the
prospective adoptive parents of [M.E.A.], and will file the appropriate
pleadings to do so.
It is further Ordered that the proof in the case is hereby
reopened to all parties, as to any issue in this case with full rights of
participation by the parties.
It is further Ordered that the parties may continue their
discovery efforts and that any discovery which is desired by either the
Petitioners or the Respondent shall proceed as soon as possible in
order not to delay the resetting of the case for additional proof.4
3
The Order appointing the Guardian Ad Litem was filed on September 23, 2002.
4
From our review of the record, it appears than none of the parties pursued further discovery or sought to tender
more proof, pursuant to this Order.
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On November 6, 2002, an “Order for Amendment of Pleadings” was entered, which added
Barry Gregg and Susan Gregg as Petitioners in the case.5
On January 21, 2003, the trial court entered its “Findings of Fact, Conclusions of Law, and
Order for Termination of Parental Rights” (the “Final Order”). The Final Order reads, in pertinent
part, as follows:
FINDINGS OF FACT
1. This Court, after hearing proof, reviewing the exhibits and the
entire file, has determined by clear and convincing evidence that the
Respondent, KIMBERLY DARLENE MOODY, has:
A. Engaged in an extensive pattern of long standing alcohol abuse,
resulting in several convictions for public intoxication, driving under
the influence of intoxicants, and that this pattern existed prior to the
filing of the Petition for custody, and has continued while the custody
Petition was pending, through its completion, and has continued after
the filing of the Petition for termination up through the date of the
final hearing.
B. That the extent and the severity of Respondent’s alcohol abuse has
rendered her incapable of maintaining a parent/child relationship
between her and the child, and that she is incapable of parenting the
child.
C. That on at least one occasion, during a scheduled weekend
visitation of Respondent with the child, she left the visitation after
about one and one-half hours with the child, traveled with an
unknown male to a nearby grocery store, and they purchased two
twelve-packs of beer. This was verified not only by the testimony of
the investigator, but was clearly shown on the video taken at the time,
and admitted to by the Respondent.
D. That for a short period of time, the Respondent was provided
housing, utilities, and other amenities relatively free of charge
5
On November 12, 2002, Moody and her cousin, Janet Lynn Scott (who has Moody’s power of attorney), along
with Mrs. Scott’s husband, Jeffrey Dale Scott, filed an “Intervening Petition for Adoption and Termination of Parental
Rights.” Paragraph 6 of this Petition reads: “...the Co-Petitioner, Kimberly Darlene Moody, the natural mother of the
Child joins in this Petition for the purpose of voluntarily surrendering all parental rights to [M .E.A.] and to consent to
the adoption of said child by the Petitioners pursuant to Tennessee Code Annotated §36-1-113.” The Petition was signed
by Moody and her signature was sworn to and subscribed. The Exums filed a trial brief in answer to the Petition filed
by Moody and the Scotts. The final Order entered by the trial court on January 21, 2003 dismisses the portion of the
Intervening Petition for lack of jurisdiction in the Juvenile Court to process an adoption.
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through a government program, but that she was evicted from those
living quarters after complaints from her neighbors over loud noise,
parties at late hours of the evening, and not keeping the premises
clean among other things. There was testimony that the manager
went into the apartment when Respondent was present and saw 30 to
40 empty beer cans present in the apartment. That this incident took
place while the Petition for termination was pending in this Court.
E. That according to the testimony from DANA WILLIAMS,
Respondent’s case worker at Pathways, which was unrebutted, the
Respondent had smoked crack, an illegal drug, and that her drinking
had increased steadily in the past five years and that the Respondent
feels out of control when drinking. That when the Respondent starts
drinking, she cannot stop. That the Respondent reported having
voices in her head and that it was getting worse. That Respondent
suffers from major depression and has a history of severe and
persistent mental illness.
F. That the Respondent has Hepatitis-C, and that although she is
aware that she cannot begin treatments for this condition until she
stops drinking alcohol, she has failed to stop drinking and has not
received her treatments.
G. That DANA WILLIAMS testified that Respondent was aware that
with her physical illness she cannot take care of the child. Further,
that Respondent was aware throughout the course of this proceeding
that if she does not change her lifestyle, she would be cut off from her
child.
H. That Respondent MOODY has not been employed since 1999,
and has no foreseeable ability to become employed in the future.
That MOODY has not provided any support for the child since the
child was removed from her home. That MOODY’S visitations with
the child prior to the filing of the termination Petition, were token
visitations, and did not serve to solidify her relationship with the
child. That on occasions the visitations were of a very short duration.
On one of the weekend visitations, MOODY testified that she and the
child’s father and paternal grandmother got drunk, and that MOODY
was driving the vehicle while intoxicated.
I. That MOODY has no sources of income other than money she
receives from her family or friends, that she has no suitable residence
available to her to properly establish a home and care for and nurture
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the child. That she has no ability to properly support the child and see
to the child’s daily physical and/or emotional needs.
J. That MOODY has not acquired, nor does it appear that she will
acquire, the requisite parenting skills necessary to properly care for a
young child and to provide fundamental care, which constitutes a
condition which prevents safe return of the child to her care.
K. That MOODY did not comply with the Permanent Parenting Plan
by continuing alcohol and drug abuse weekly counseling sessions
with a licensed counselor, that she violated the Permanent Parenting
Plan by continuing to consume alcohol, and violated the Permanent
Parenting Plan by failing to attend at least three Alcoholics
Anonymous meetings per week.
L. That MOODY has given her full power of attorney to her cousin,
JANET SCOTT, who basically takes care of MOODY, and provides
for her needs.
M. That MOODY is dependent upon her family and friends for her
needs, and that she has no physical or emotional ability to provide for
her own needs, nor will she likely be able to acquire that ability in the
foreseeable future. That JANET SCOTT, MOODY’S witness at the
trial, agreed that MOODY had no ability to take care of the child and
provide the child with even the minimum physical, medical, and
emotional needs of the child.
N. That MOODY has continued to demonstrate that she has no stable
relationship with the child’s biological father, ARGO, and that their
relationship has been stormy throughout the time of the child’s life,
and that ARGO is a confirmed alcoholic with no intentions of curbing
his abuse of alcohol. That in spite of the effects that this has on her
ability to convince the Court of her desire to keep her child, MOODY
continues to abuse alcohol.
O. That Moody initially gave up custody of the child to her sister,
because of her arrest and incarceration for driving under the influence
of alcohol when the child was in the vehicle with her, unrestrained,
and child endangerment and ultimate conviction for those offenses in
March, 2000. That the conditions which lead to the removal of the
child, and other conditions which prevent return persist, and that there
is little likelihood that these conditions will be remedied at an early
date, and continuation of parental rights greatly diminishes the child’s
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chance for early integration into a stable home. That Moody has
failed to make fundamental adjustments in her lifestyle which could
make a safe return of the child possible.
P. That a change of caretakers and physical environment over to
Moody is likely to have a detrimental effect on the child’s emotional,
psychological and medical condition.
Q. That MOODY in her testimony and sworn statement, has
admitted the following:
1. That she is an alcoholic.
2. That she continues to use and abuse alcohol.
3. That she has no financial ability to care for the
child and to see to the child’s physical needs.
4. That she has no income, nor does she have the
ability to get income for her support or that of the
child.
5. That she knows that her Hepatitis-C condition is a
serious matter, and that it is life threatening if
untreated.
6. That she knows she cannot start treatments until
she has been alcohol free for at least six months. That
MOODY has yet to start any treatment for this
condition.
7. That she is totally dependant upon JANET SCOTT
and other family members for her support and that this
will not change in the foreseeable future.
8. That she has no transportation.
9. That she has no home or stable place to live.
10. That she has left a visitation session with the
child after a short time and purchased alcohol for her
own consumption. That she knew she was being
watched at this time by an investigator, but that
buying beer was “Legal”.
11. That on another visitation weekend with the
child, she and the child’s father and paternal
grandmother got drunk and that she was driving the
vehicle while intoxicated.
12. That she has been convicted of driving under the
influence of [an] intoxicant while the child was in the
car with her unrestrained.
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13. That it is not unusual for her to drink alcohol and
drive a vehicle.
14. That she had pled guilty to child endangerment of
the child.
15. That she has been in alcohol and drug
rehabilitation, (28 days in rehab and 12 days in St.
Francis Hospital) but that she continued to abuse
alcohol thereafter.
16. That she has hallucinations and hears her baby
crying in her head when she is not there.
17. That she suffers from major depression, has an
inability to concentrate, and has panic attacks.
18. That MOODY stated in a court document filed in
this case, under oath, that her parental rights (and
those of the father) should be terminated and that such
termination would be in the best interest of the child.
R. That the termination of the Respondent MOODY’S parental rights
to the child is in the best interest of the child. That the foregoing
Findings of Fact support this finding by clear and convincing
evidence.
CONCLUSIONS OF LAW
* * *
10. That the proof and evidence as a whole is clear and convincing,
such as would remove all doubt, and support a finding that Moody
has abandoned the child, has not complied with the Permanent
Parenting Plan or plan of care, has failed to remedy conditions that
led to removal of the child, child abuse, and that Moody is mentally,
emotionally and physically incompetent to care for the child, and that
her inability to care for the child is continuing.
Moody appeals from this Final Order and raises two issues for review as stated in her
brief:
1. Does a party have standing to file a petition when they are not one
of the parties specifically identified and/or enumerated under T.C.A.
§ 36-1-113(b).
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2. Can the court order the termination of parental rights when the
petitioner has failed to carry the burden of proof necessary to allow
the termination of said rights to take place.
Since this case was tried by the court sitting without a jury, we review the case de novo
upon the record with a presumption of correctness of the findings of fact by the trial court.
Unless the evidence preponderates against the findings, we must affirm, absent error of law. See
Tenn. R. App. P. 13(d).
Standing
As noted above, during the course of the trial, Joy Exum testified that it was not her intent
to adopt M.E.A. At that time, counsel for Moody moved the court to dismiss the case for lack of
standing pursuant to T.C.A.§ 36-1-113(b). The court denied the motion, which was renewed at
the close of the Petitioners’ proof and again at the close of all proof.
At the time the Petition to Terminate was filed in this case, T.C.A.§ 36-1-113(b) (2001)
read as follows:
36-1-113. Termination of parental rights.–
* * *
(b) The prospective adoptive parent(s) of the child, any licensed
child-placing agency having custody of the child, the child’s guardian
ad litem, a court appointed special advocate (CASA) agency, or the
department shall have standing to file a petition pursuant to this part
or pursuant to title 37 to terminate parental or guardianship rights of
a person alleged to be a parent or guardian of such child. The
prospective adoptive parents shall have standing to request
termination of parental or guardianship rights in the adoption petition
filed by them pursuant to this part.6
6
This statute has since been amended. T.C.A. §36-1-113(b) (Supp. 2003) now reads:
The prospective adoptive parent or parents of the child, including extended family
members caring for related children, any licensed child-placing agency having
custody of the child, the child’s guardian ad litem, a court appointed special
advocate (CASA) agency, or the department shall have standing to file a petition
pursuant to this part or pursuant to title 37 to terminate parental or guardianship
rights of a person alleged to be a parent or guardian of such child. The prospective
adoptive parents, including extended family members caring for related children,
shall have standing to request termination of parental or guardianship rights in the
adoption petition filed by them pursuant to this part.
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Appellants contend that T.C.A. §36-1-113(b) is determinative in this case, that the Exums
did not have standing to file their Petition in this case, and that the amendment to the Petition,
which added the Greggs as prospective adoptive parents, was filed too late to allow proper
adjudication of the issues. We disagree.
At the time of the filing of the Petition to Terminate in this case, Tenn. R. Juv. P. 39
(2001) read, in relevant part, as follows:
RULE 39. TERMINATION OF
PARENTAL RIGHTS
(a) Petition. A petition to terminate the parental rights of either or
both parents to a minor child may be filed by any person who has
knowledge of the facts alleged or is informed and believes they are
true...7
Tenn. R. Juv. P. 1 clearly states that the Rules of Juvenile Procedure “shall govern the
procedure in Juvenile Court in all cases...involving the termination of parental rights.” Id.
(emphasis added). Rules of Juvenile Procedure, along with the Rules of Criminal Procedure,
Rules of Civil Procedure, and Rules of Appellate Procedure, are promulgated by the joint action
of the legislature and the Supreme Court, T.C.A. § 16-3-402 and T.C.A. § 16-3-404 (1994), and
they "have the force and effect of law." See Crosslin v. Alsup, 594 S.W.2d 379, 380 (Tenn.
1980). Although it is well settled that “[s]tatutes which conflict with the rules must be given
effect to the extent possible.” see City of Caryville v. Campbell County, 660 S.W.2d 510, 512
(Tenn. Ct. App.1983), the ultimate objective in statutory construction is to determine legislative
intent. City of Humboldt v. Morris, 579 S.W.2d 860, 863 (Tenn. Ct. App.1978). To that end,
this Court has held that “[c]onflicts between provisions of the Tennessee Rules of Civil
Procedure and provisions of the Tennessee Code which cannot be harmoniously construed will
be resolved in favor of the Tennessee Rules of Civil Procedure.” Mid-South Pavers, Inc. v.
Arnco Const., Inc., 771 S.W.2d 420, 422 (Tenn. Ct. App. 1989); Arnold v. City of Chattanooga,
19 S.W.3d 779 (Tenn. Ct. App. 1999). These decisions are in accord with the provisions of
T.C.A. § 16-3-406 (1994), which provides:
16-3-406. Laws in conflict with rules nullified.–After such rules
[those described in T.C.A. §16-3-402] shall have become effective,
all laws in conflict therewith shall be of no further force or effect.
For the foregoing reasons, the conflict on the issue of standing that exists between T.C.A.
§ 36-1-113(b) and Tenn. R. Juv. P. 39 is properly resolved in favor of the Tennessee Rules of
Juvenile Procedure. Consequently, the Exums had standing to file this Petition to Terminate
Parental Rights regardless of the amendment to add the Greggs as prospective adoptive parents.
7
Tenn. R. Juv. P. 39 has not been amended to date.
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However, even if we assume, arguendo, that Tenn. R. Juv. P. 39 is not binding in this
matter, the trial court retained jurisdiction over the case and was well within its auspices to grant
the motion to amend the Petition for Termination. We have found no rule of juvenile procedure
dealing with amendment to pleadings. Consequently an issue regarding amendments falls under
the provision of Rule of Juvenile Procedure 1 (d) which provides:
(d) SITUATIONS NOT COVERED BY RULES. Where no specific
procedure is prescribed by these rules, the court may proceed in any
lawful manner, in accordance with written local rules of court, which
shall not be inconsistent with these rules or with any other applicable
law.
Tenn.R.Civ.P. 15, which provides that amendments "shall be freely given when justice so
requires," governs amendments in the other trial courts in this state and it appears to be the
applicable law used by the juvenile judge in this instance. Rule 15.03, Tenn.R.Civ.P. provides:
Relation Back of Amendments. - Whenever the claim or defense
asserted in the amended pleadings arose out of the conduct,
transaction or occurrence set forth or attempted to be set forth in the
original pleading, the amendment relates back to the date of the
original pleading. An amendment changing the party or the naming
of the party by or against whom a claim is asserted relates back if the
foregoing provision is satisfied and if, within the period provided by
law for commencing an action or within 120 days after
commencement of the action, the party to be brought in by
amendment (1) has received such notice of the institution of the
action that the party will not be prejudiced in maintaining a defense
on the merits, and (2) knew or should have known that, but for a
mistake concerning the identity of the proper party, the action would
have been brought against the party.
We find nothing in the record to prevent the applicability of the relation back provision.
Accordingly, under either Tenn.R.Juv.P. 39 or under Tenn.R.Civ.P. 15, the Petitioners had
standing to petition for termination of parental rights. Appellant also argues that this amendment
was filed too late to allow her sufficient opportunity to present evidence concerning the addition
of the Greggs. This argument also must fail in light of the trial court's "order on Motion to
Amend Pleadings," which specifically reopened discovery and proof of all parties. Having failed
to take advantage of that opportunity at the trial level, Moody cannot be heard to complain on
appeal.
Having determined that the Petitioners have standing to file this Petition for Termination,
we now turn to Appellant’s second issue which, in essence, is whether Petitioners carried the
burden of proof to sustain termination of parental rights.
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Termination of Parental Rights
T.C.A. § 36-1-113 (Supp. 2001) governs termination of parental rights and reads, in
relevant part, as follows:
(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.
The grounds for termination of parental rights are found in T.C.A. § 36-1-113(g) (Supp.
2001):
(g) Initiation of termination of parental or guardianship rights may be
based upon any of the following grounds:
(1) Abandonment by the parent or guardian, as defined in §36-1-102,
has occurred;8
(2) There has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency plan
or a plan of care pursuant to the provisions of title 37, chapter 2, part
4;
(3)(A) The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months and:
(i) The conditions which led to the child’s removal or
other conditions which in all reasonable probability
would cause the child to be subjected to further abuse
8
T.C.A. § 36-1-102(1) defines “Abandonment,” in pertinent part, as follows:
(1)(A) “Abandonment” means, for purposes of terminating the parental or guardian
rights of parent(s) or guardian(s) of a child to that child in order to make that child
available for adoption, that:
(i) For a period of four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate the
parental rights of the parent(s) or guardian(s) of the child who is
the subject of the petition for termination of parental rights or
adoption, that the parent(s) or guardian(s) either have willfully
failed to visit or have willfully failed to support or have willfully
failed to make reasonable payments toward the support of the
child;
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or neglect and which, therefore, prevent the child’s
safe return to the care of the parent(s) or guardian(s),
still persist;
(ii) There is little likelihood that these conditions will
be remedied at an early date so that the child can be
safely returned to the parent(s) or guardian(s) in the
near future; and
(iii) The continuation of the parent or guardian and
child relationship greatly diminishes the child’s
chances of early integration into a safe, stable and
permanent home.
In the instant case, the trial court terminated Moody’s rights based on several grounds,
including abandonment, failure to comply with the parenting plan, and present and continuing
inability to care for M.E.A. We note that clear and convincing evidence of any one of these
grounds is sufficient to terminate Moody’s parental rights. See T.C.A. § 36-1-113(g).
Having reviewed the entire record in this matter, we find that Moody has taken no
substantial strides since her initial arrest for DUI and child endangerment to get the help she
needs in order to overcome her addiction to alcohol, nor has she made any substantial attempts to
comply with the requirements outlined in the parenting plan. Additionally, Moody has been
unable to procure adequate housing for herself or for her child. Moody’s drunken partying
resulted in her eviction from the Hillcrest Place Apartments, where she had been living virtually
rent and utility free. At the time of the hearing, she was living a transient existence, staying with
a boyfriend and then with some other friends. Moody was not able to say when she would be
able to provide adequate and stable housing for this child. Moody also testified that she hears
voices, is depressed, and has panic attacks. Although Moody is supposed to take medication to
control these episodes, the record shows that, on several occasions, she has failed to take her
medication (either because the pills were stolen or because she failed to make sure that she had
her medications on hand). At those times, Moody testified that she drinks to control her anxiety.
In addition, Moody suffers from Hepatitis-C, which she knows is a life threatening disease.
Moody also has been told that she cannot begin treatment for this disease until she has been sober
for at least six (6) months. At the time of this hearing, Moody had not begun treatment.
The record in this case supports the trial court’s Findings of Fact as set out above.
M.E.A. has been out of Moody’s custody for the majority of her life. The circumstances that led
to M.E.A.’s removal from Moody’s custody still persist. In short, Moody’s alcoholism has and
continues to result in behavior (i.e. arrests, inability to find employment, inability to start
treatment for Hepatitis-C, inability to manage her own affairs) that is not only detrimental to the
safety and welfare of M.E.A., but also to the safety and welfare of Moody herself. The record
reflects that Moody, even in the face of losing her child, has been unwilling or unable to avail
herself of programs that might help her to manage her disease. Furthermore, from the record, it
does not appear that Moody’s situation will be remedied at any time in the foreseeable future.
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Under T.C.A. § 36-1-113(g) and for the foregoing reasons, we find that the continuation of the
parent and child relationship greatly diminishes M.E.A.’s chances for early integration into a
safe, stable and permanent home.
The record, by clear and convincing evidence, establishes grounds for termination and
establishes that termination of parental rights is in the best interest of this child. We, therefore,
affirm the Orders of the juvenile court, terminating the parental rights of Kimberly Darlene
Moody. Costs of this appeal are assessed to the Appellant, Kimberly Darlene Moody, and her
surety.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
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