In Re. Thomas P. ( 2006 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 17, 2006
IN RE THOMAS P.
Appeal from the Juvenile Court for Sevier County
No. 02-M7-325 Jeff D. Rader, Judge
No. E2005-01367-COA-R3-PT - FILED MAY 31, 2006
The trial court terminated the parental rights of Rene V. (“Mother”) to her child, Thomas P. (DOB:
September 27, 2000),1 upon finding, by clear and convincing evidence, that grounds for terminating
her parental rights existed and that termination was in the best interest of the child. Mother appeals.
We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which D. MICHAEL SWINEY and
SHARON G. LEE, JJ., joined.
James R. Hickman, Jr., Sevierville, Tennessee, for the appellant, Rene V.
Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, for
the appellee, State of Tennessee Department of Children’s Services.
Mary C., Cape Coral, Florida, appellee, Pro Se.
OPINION
I.
In November, 1999, prior to the birth of the child involved in the instant case, the Department
of Children’s Services (“DCS”) became involved with Mother. In that month, DCS filed a petition
seeking temporary custody of Mother’s three-year-old daughter, Leah V. (DOB: March 8, 1996).
In that petition, DCS alleged that Mother had left Leah alone in a car for two hours while she was
1
W hile the record also shows a birth date of August 22, 2000, we believe that the correct birth date is as
reflected in this opinion.
drinking alcoholic beverages at the Rocky River Brewery. As a result of her conduct, Mother was
charged with criminal child abuse and neglect, and Leah was removed from her custody. Mother
later pleaded guilty to child neglect as defined in Tenn. Code Ann. § 39-15-401 (Supp. 2005). She
received a sentence of two years. In November, 2002, Mother’s parental rights to Leah were
terminated; Mother did not appeal that termination.
In September, 2000, Mother gave birth to Thomas P., the subject of the instant action. On
August 19, 2002, DCS filed a petition for temporary custody of Thomas. The petition alleges that
Thomas is dependent and neglected in that he had been left unattended in a parked car for several
hours outside of an apartment complex. Upon the filing of the petition, the trial court entered an
order placing temporary custody of the child with DCS. Thomas was placed with the foster family
who had custody of his sister, Leah. This family later adopted Leah. They also expressed an interest
in adopting Thomas.
Mother was later charged with criminal child abuse and neglect stemming from the incident
involving Thomas. Mother pleaded no contest and received a sentence of 11 months and 29 days.
On November 15, 2002, DCS filed a petition to terminate Mother’s parental rights to Thomas.
DCS based the petition on Mother’s guilty plea to, and subsequent two-year sentence for, neglect of
Leah.
The case was heard on February 19, 2003. The trial court subsequently entered an order,
effective November 20, 2003, terminating Mother’s parental rights. As relevant to the issues on this
appeal, the trial court found, by clear and convincing evidence, the following:
[Mother] has been sentenced to a period of more than two (2) years for
child neglect including her two children. She was sentenced to two (2)
years for child neglect of [Leah] and was found to have violated her
probation and was ordered to serve that time. She was then sentenced
to eleven months and twenty-nine days for child neglect of [Thomas]
on December 4, 2002. She pled guilty to this offense as part of a plea
agreement and the Court finds that she cannot deny the allegations at
this time. She is currently incarcerated on a violation of probation
charge. She also has a pending warrant for her arrest in Lee County,
Florida when she is released from jail here. This continued criminal
behavior exhibits a willful and wanton disregard for her child. The
Court finds that she left [Leah] unattended in a parked car in a parking
lot and later left [Thomas] unattended in a parked car in a parking lot.
The court finds that this knowing exposure of a child to abuse or
neglect that is likely to cause great bodily harm or death is severe
abuse. The Court finds that this behavior, which she had been
cautioned by the Court not to repeat, was extremely dangerous to the
child.
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On the basis stated, the trial court terminated Mother’s parental rights. In addition, the trial court
found, again by clear and convincing evidence, that termination was in the best interest of the child.
From this order, Mother appeals.
II.
The law is well-established that “parents have a fundamental right to the care, custody, and
control of their children.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley
v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). This right, however, is not
absolute and may be terminated if there is clear and convincing evidence justifying termination under
the pertinent statute. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
Clear and convincing evidence is evidence which “eliminates any serious or substantial doubt
concerning the correctness of the conclusions to be drawn from the evidence.” O’Daniel v. Messier,
905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).
III.
In cases involving the termination of parental rights, our de novo review is somewhat different
from our review of a typical bench trial. This difference is addressed in our case of In re M.J.B., 140
S.W.3d 643 (Tenn. Ct. App. 2004), in which we said the following:
Because of the heightened burden of proof required by Tenn. Code
Ann. § 36-1-113(c)(1), we must adapt Tenn. R. App. P. 13(d)’s
customary standard of review for cases of this sort. First, we must
review the trial court’s specific findings of fact de novo in accordance
with Tenn. R. App. P. 13(d). Thus, each of the trial court’s specific
factual findings will be presumed to be correct unless the evidence
preponderates otherwise. Second, we must determine whether the
facts, either as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the
elements required to terminate a biological parent’s parental rights.
Id. at 654 (citations omitted). As can be seen from the above, our determination regarding the issue
of whether “the facts, either as found by the trial court or as supported by the preponderance of the
evidence, clearly and convincingly establish the elements required to terminate a biological parent’s
parental rights” is a question of law. Hence, we accord no deference to the trial court’s judgment as
to this issue. Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn. Ct. App. 1997).
IV.
Tenn. Code Ann. § 36-1-113(g) lists the grounds upon which parental rights may be
terminated, and “the existence of any one of the statutory bases will support a termination of parental
rights.” In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000). The issues raised in the
pleadings, and the trial court’s findings, implicate the following statutory provisions:
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Tenn. Code Ann. § 37-1-147 (2005)
(a) The juvenile court shall be authorized to terminate the rights of a
parent or guardian to a child upon the grounds and pursuant to the
procedures set forth in title 36, chapter 1, part 1.
* * *
Tenn. Code Ann. § 36-1-113 (2005)
(a) The chancery and circuit courts shall have concurrent jurisdiction
with the juvenile court to terminate parental or guardianship rights to
a child in a separate proceeding, . . . by utilizing any grounds for
termination of parental or guardianship rights permitted in this part or
in title 37, chapter 1, part 1 and title 37, chapter 2, part 4.
* * *
(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.
* * *
(g) Initiation of termination of parental or guardianship rights may be
based upon any of the following grounds:
* * *
(5) The parent or guardian has been sentenced to more than two (2)
years’ imprisonment for conduct against the child who is the subject
of the petition, or for conduct against any sibling or half-sibling of the
child or any other child residing temporarily or permanently in the
home of such parent or guardian, that has been found under any prior
order of a court or that is found by the court hearing the petition to be
severe child abuse, as defined in § 37-1-102(b)(21). Unless otherwise
stated, for purposes of this subdivision (g)(5), “sentenced” shall not be
construed to mean that the parent or guardian must have actually
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served more than two (2) years in confinement, but shall only be
construed to mean that the court had imposed a sentence of two (2) or
more years upon the parent or guardian;
* * *
Tenn. Code Ann. § 37-1-102 (2005)
(b) As used in this part, unless the context otherwise requires:
* * *
(21) “Severe child abuse” means:
(A) The knowing exposure of a child to or the knowing failure to
protect a child from abuse or neglect that is likely to cause great bodily
harm or death and the knowing use of force on a child that is likely to
cause great bodily harm or death;
V.
A.
Mother raises four issues for our consideration. These issues raise the following questions:
1. Does the evidence preponderate against the trial court’s
determination that grounds exist for terminating Mother’s parental
rights?2
2. Does the evidence preponderate against the trial court’s finding
that termination is in the best interest of the child?
3. Did the trial court err in denying Mother’s oral motion to dismiss
at the close of DCS’s case?
4. Does the trial court’s failure to enter its final order within 30 days
of the termination hearing constitute reversible error?
We will address each issue in turn.
2
W hile this issue is broadly stated, M other’s argument in her brief is limited to whether the ground for
termination set forth in Tenn. Code Ann. § 36-1-113(g)(5) has been properly established.
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B.
Mother first contends that the trial court erred in finding sufficient evidence to terminate her
parental rights under Tenn. Code Ann. § 36-1-113(g)(5), which states that grounds for termination
exist if the parent has been sentenced to two or more years in prison for conduct against the subject
child, or a sibling of the subject child, that constitutes severe child abuse. At trial, DCS offered into
evidence a written judgment reflecting Mother’s plea of guilty to a charge of child neglect of Leah
and Mother’s sentence of two years in prison; however, the judgment does not describe the conduct
that gave rise to the charge of child neglect. That conduct is found in the arrest warrant, which was
received into evidence. Mother objected to the introduction of the arrest warrant. In response to the
objection, the court ruled that the warrant could be offered into evidence for the sole purpose of
showing “[t]hat the charges were made.” Thus, Mother asserts that, while she acknowledges her plea
and resulting two-year sentence, the facts underlying the conviction, according to her, were not before
the trial court. She argues that, in the absence of the underlying facts, there is no evidence that she
committed “severe child abuse” as defined in Tenn. Code Ann. § 37-1-102(b)(21)(A). Thus, she
contends that DCS failed to prove by clear and convincing evidence that grounds for terminating her
parental rights exist.
We disagree with Mother’s analysis. The arrest warrant entered into evidence is a document
that the circuit court clerk has certified to be an exact copy of the original in her office. This
document is therefore self-authenticating, pursuant to Tenn. R. Evid. 902(4),3 and is admissible
without accompanying testimony. Mother acknowledges in her brief that the document was properly
authenticated.
The warrant shows that, on November 10, 1999, Officer Maples made oath to certain facts that
he alleges occurred on November 9, 1999:
On 11-9-99, I did respond to Rocky River Brewery on a possible child
neglect call. The suspect was found to be [Mother]. She had been in
the Brewery for several hours while her child, [Leah], was left alone
in the vehicle. The child was left with no food or water, the child also
did have feces in her hair. There was also vomit in the vehicle with
the child. This did occur in Sevierville, Sevier County TN. The
3
Tenn. R. Evid. 902(4) provides that “[e]xtrinsic evidence of authenticity as a condition precedent to
admissibility is not required” for
[a] copy of an official record or report or entry therein, or of a document authorized
by law to be recorded or filed and actually recorded or filed in a public office
(including data compilations in any form), certified as correct by the custodian or
other person authorized to make the certification, by certificate complying with
paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or the
Tennessee Legislature or rule prescribed by the Tennessee Supreme Court.
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mother was also under the influence of alcohol. The child is 3 yrs. of
age.
The officer’s verified statement of the facts underpin the warrant’s charge that Mother was guilty of
child abuse and neglect, pursuant to Tenn. Code Ann. § 39-15-401.
The judgment shows that Mother pleaded guilty to child neglect for an offense occurring on
November 9, 1999, which, as previously noted, is the same date referenced in the warrant. The
evidence does not preponderate against a finding that Mother was pleading guilty to the offense
charged in that warrant. Such a guilty plea “constitutes an admission of all facts alleged.” Nix v.
State, 446 S.W.2d 266, 268 (Tenn. Crim. App. 1969). Because Mother pleaded guilty, she is
admitting that she is guilty of the charge, which charge is based upon a set of facts reflecting that
Mother left her three-year-old child alone in a vehicle for several hours with no food or water, in the
presence of vomit and with feces in her hair, while Mother consumed alcoholic beverages in a
brewery.
We agree with Mother’s contention that the warrant was admitted into evidence for the sole
purpose of proving that charges were lodged against her. However, it is not the warrant that proves
Mother is guilty of the facts underlying the warrant; it is Mother’s plea of guilt to the facts contained
in the warrant that proves those facts. Looking at these facts, we cannot say that the evidence
preponderates against a finding that this conduct constitutes severe child abuse, which has been
defined, in part, as “[t]he knowing exposure of a child to or the knowing failure to protect a child
from abuse or neglect that is likely to cause great bodily harm.” See Tenn. Code Ann. § 37-1-
102(b)(21)(A). The facts to which she offered her plea of guilty clearly show “abuse or neglect that
is likely to cause great bodily harm.” To recite the facts is to establish the requisite factual predicate.
Under the facts of this case, the plea and the warrant say it all, and a sad story it is indeed.
As an additional argument, Mother contends that the language of Tenn. Code Ann. § 36-1-
113(g)(5) is internally inconsistent in that it initially requires proof of a sentence of “more than two
(2) years’ imprisonment” and then later defines a sentence to mean “two (2) or more years.” Mother
argues that the statute should be narrowly construed to its initial requirement of “more than two (2)
years,” and asserts that DCS has failed to prove that Mother received a single conviction that would
satisfy this requirement, as her conviction of child neglect with respect to Leah carries with it a
sentence of exactly two years.
When construing statutory language, the statute must be read as a whole. State v. Northcutt,
568 S.W.2d 636, 637 (Tenn. Crim. App. 1978). The courts must construe statutes “so that no part
will be inoperative, superfluous, void or insignificant.” Tidwell v. Collins, 522 S.W.2d 674, 676
(Tenn. 1975). Turning to the statute at issue in the instant case, it is clear that the second sentence
is clarifying the meaning of the first sentence by defining the word “sentenced.” That definition states
that “sentenced” means a sentence of “two (2) or more years.” Reading this statute as a whole, as we
are constrained to do, we find that a sentence of at least two years for conduct that constitutes severe
child abuse is sufficient to prove the existence of grounds for termination of parental rights. In view
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of the fact that DCS proved (1) that Mother received a two-year sentence for the subject conduct
against a sibling of Thomas and (2) that the conduct constitutes severe child abuse, the evidence does
not preponderate against the trial court’s determinations regarding these matters. We hold, as a matter
of law, that these established facts clearly and convincingly establish the statutory elements required
to terminate Mother’s parental rights with respect to Thomas.
C.
Next, Mother asserts that the evidence does not support a finding that termination was in
Thomas’s best interest because the trial court failed to make specific findings of fact on this issue.
In support of this contention, Mother relies on the case of In re Giorgianna H., No. M2005-01697-
COA-R3-PT, 2006 WL 721303, at *4 (Tenn. Ct. App. M. S., filed March 21, 2006), in which this
court noted the explicit requirement in Tenn. Code Ann. § 36-1-113(k) that courts terminating
parental rights “enter written orders containing specific findings of fact and conclusions of law.”
Id. (quoting In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re M.J.B., 140 S.W.3d 643,
653-54 (Tenn. Ct. App. 2004)). We agree with Mother that the law requires such specific findings.
We disagree, however, with her contention that the trial court failed to make the required findings in
the instant case.
The factors a court must consider, to the extent that any given factor is implicated by the facts
of a given case, when deciding whether termination is in the child’s best interest are set forth in Tenn.
Code Ann. § 36-1-113(i) (2005):
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation
or other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is
likely to have on the child’s emotional, psychological and medical
condition;
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(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or
adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s
home is healthy and safe, whether there is criminal activity in the
home, or whether there is such use of alcohol or controlled substances
as may render the parent or guardian consistently unable to care for the
child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian
from effectively providing safe and stable care and supervision for the
child; or
(9) Whether the parent or guardian has paid child support consistent
with the child support guidelines promulgated by the department
pursuant to [Tenn. Code Ann.] § 36-5-101.
This list, however, is “not exhaustive,” and there is no requirement that every factor must appear
“before a court can find that termination is in a child’s best interest.” Dep’t of Children’s Servs. v.
T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL 970434, at *3 (Tenn. Ct. App. M.S., filed May
10, 2002).
In the instant case, the trial court noted that it had previously found, in the trial related to Leah,
that Mother had failed to make reasonable efforts to provide a suitable home for Leah and that Mother
had demonstrated such a lack of concern for the child that it appeared unlikely she would be able to
provide a home for the child at an early date. The trial court specifically found that these conditions
“continue to persist” with respect to Thomas. See Tenn. Code Ann. § 36-1-113(i)(1),(2). The court
also found that Mother “has failed to seek reasonable visitation” with Thomas and that she did not
seek visitation after Thomas’s removal “due to her fear of incarceration.” See Tenn. Code Ann. § 36-
1-113(i)(3). The court held that awarding custody of Thomas to Mother “would pose a risk of
substantial harm to the physical or psychological welfare of the child.” See Tenn. Code Ann. § 36-1-
113(i)(5). The court found that the act of leaving Thomas unattended in a parked car in a parking lot
amounted to “knowing exposure of a child to abuse or neglect that is likely to cause great bodily harm
or death”; that this behavior “was extremely dangerous to the child”; and that Mother “committed
severe child abuse against this child.” See Tenn. Code Ann. § 36-1-113(i)(6). The court pointed out
that Mother’s “continued criminal behavior exhibits a willful and wanton disregard for her child.”
See Tenn. Code Ann. § 36-1-113(i)(7).
Without question, these specific findings are sufficient to prove, in a clear and convincing
manner, that termination is the best interest of the child. Accordingly, the evidence does not
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preponderate against the trial court’s findings of fact with respect to this issue. Furthermore, we agree
with the trial court’s conclusion of law that the threshold of clear and convincing evidence has been
met in this case.
D.
Mother next contends that the trial court erred in denying her oral motion to dismiss at the
close of DCS’s proof. Mother based her motion for involuntary dismissal – which motion was made
pursuant to Tenn. R. Civ. P. 41.02(2) – on the premise that DCS had failed to prove grounds for
termination, relying on the same argument as discussed in subsection V.(B) of this opinion. This
issue, however, merits no further discussion because Mother decided to proceed with her proof at
trial, rather than resting on her motion. “Following the denial of a Tenn. R. Civ. P. 41.02(2) motion,
the moving party may stand on its motion and bring an appeal or present its evidence; it cannot do
both.” Adelsperger v. Adelsperger, 970 S.W.2d 482, 484 (Tenn. Ct. App. 1997) (citations omitted).
This issue is without merit.
E.
Finally, Mother argues that the trial court’s failure to enter its final order within 30 days of the
termination hearing constitutes reversible error. Mother relies upon Tenn. Code Ann. § 36-1-113(k),
which provides that the trial court “shall enter an order that makes specific findings of fact and
conclusions of law within thirty (30) days of the conclusion of the hearing.” The hearing in the
instant case took place on February 19, 2003, and the final order was not effective until November
20, 2003, some nine months later. Mother essentially contends that the statute mandates that an order
be entered within 30 days.
This court recently addressed this very issue in In re M.R.W., No. M2005-02329-COA-R3-
PT, 2006 WL 1184010 (Tenn. Ct. App. W.S., filed May 3, 2006). In that case, the court held that,
while the use of word “shall” generally indicates that the direction in the statute is mandatory,
“statutory provisions concerning the time frame in which an act must be done ordinarily are
considered to be directory.” Id., at *2 (citing Kardoush, L.L.C. v. City of Memphis Alcohol
Comm’n, No. W2005-00104-COA-R3-CV, 2005 WL 3017602, at *3 (Tenn. Ct. App. W.S., filed
November 9, 2005) (citing JJ & TK Corp. v. Bd. of Comm’rs, 149 S.W.3d 628, 631 (Tenn. Ct. App.
2004); Garrett v. State, 717 S.W.2d 290, 291 (Tenn. 1986))). We went on to find that, while the
legislature intended that termination cases “be adjudicated as expeditiously as possible,” a court’s
failure to enter an order in a termination case within 30 days is not fatally defective to the validity of
the order. In re M.R.W., at *3.
While we would continue to encourage trial courts to respect the thirty-day time period for
entry of the final order in termination cases, we do not believe that the failure to adhere to this time
period, standing alone, constitutes reversible error.
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F.
While the trial court based its determination with respect to grounds for termination on
multiple statutory sections, Mother curiously only challenges the trial court’s holding with respect to
Tenn. Code Ann. § 36-1-113(g)(5). We have reviewed the evidence with respect to the other grounds
and conclude that it is also sufficient to support the trial court’s conclusions with respect to those
grounds.
VI.
After the trial court announced that it was terminating Mother’s parental rights with respect
to Thomas, but before the court entered its judgment, the child’s maternal grandmother, Mary C., filed
a petition in the trial court seeking to intervene and asking for immediate visitation and eventual
custody of Thomas. After the trial court entered its judgment terminating Mother’s parental rights,
the court entered an order dismissing the grandmother’s petition and all other pleadings filed by her
for failure to prosecute.
While this matter was pending on appeal, the grandmother filed numerous papers in this
proceeding. She is now proceeding pro se. We have reviewed these papers and we find that they do
not have merit. Accordingly, to the extent that the grandmother’s filings seek relief from this court,
they are denied.
VII.
The judgment of the trial court is affirmed. This case is remanded to the trial court for the
enforcement of the trial court’s judgment and for the collection of costs assessed therein, all pursuant
to applicable law. Costs on appeal are taxed to the appellant, Rene V.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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