In Re Jayden R. ( 2017 )

08/11/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 3, 2017
IN RE JAYDEN R., ET AL.
Appeal from the Juvenile Court for Warren County
No. 16-JV-736 William M. Locke, Judge
No. M2016-02336-COA-R3-PT
This appeal concerns termination of parental rights. The Tennessee Department of
Children’s Services (“DCS”) filed a petition in the Juvenile Court for Warren County
(“the Juvenile Court”) seeking to terminate the parental rights of Dara C. (“Mother”) to
her minor children Jayden R., Kara C., and Jaxson C. (collectively, “the Children”).1
DCS also sought to terminate the parental rights of Jonathan C. (“Father”) to Kara C. and
Jaxson C.2 After a trial, the Juvenile Court entered an order terminating Mother’s
parental rights to the Children and Father’s parental rights to Kara and Jaxson. Mother
and Father appealed. DCS argues that Mother’s and Father’s failure to sign their notices
of appeal renders this appeal jurisdictionally deficient. We agree that Mother’s and
Father’s failure to sign their notices of appeal as required by Tenn. Code Ann. § 36-1-
124(d) renders this appeal jurisdictionally deficient, and it is dismissed on that basis.
Even if the appeal were not jurisdictionally deficient, we would, given this record, affirm
the Juvenile Court’s judgment terminating Mother’s and Father’s parental rights. We
dismiss this appeal for lack of jurisdiction.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which KENNY W.
ARMSTRONG, J., joined, and ANDY D. BENNETT, J., filed separate dissenting opinion.
Tammy H. Womack, McMinnville, Tennessee, for the appellant, Jonathan C.
Christina S. Stanford, Manchester, Tennessee, for the appellant, Dara C.
1
Jayden was born in June 2009, Kara in October 2012, and Jaxson in January 2015.
2
Jayden is the child of Dara C. and Dallas R. Dallas R.’s parental rights to Jayden were terminated as
well, but Dallas R. is not a party to this appeal. This appeal concerns only the parental rights of Dara C.
and Jonathan C. To reiterate, Dara C. is mother to all three of the Children, whereas Jonathan C. is father
only of Kara and Jaxson.
Herbert H. Slatery, III, Attorney General and Reporter, Jordan K. Crews, Assistant
Attorney General, and, Kathryn A. Baker, Assistant Attorney General, for the appellee,
the Tennessee Department of Children’s Services.
OPINION
Background
In April 2015, DCS received a report alleging child abuse concerning Jaxson, then
two months old. Jaxson was admitted to the hospital owing to his insufficient weight
gain. X-rays revealed a spiral fracture to the mid tibia. Investigators questioned Mother
and Father about the injuries. Mother and Father blamed Jaxson’s sister, Kara, for his
injuries. The Children were removed from Mother’s and Father’s home and have
remained continuously in foster care since then. In May 2015, Mother and Father were
arrested for aggravated child neglect. In October 2015, Mother and Father were
convicted of aggravated child neglect of a child eight years old or younger and were
sentenced to fifteen years in prison. In November 2015, the Juvenile Court entered an
order adjudicating the Children dependent and neglected. The Juvenile Court also found
that Jaxson was the victim of severe child abuse by Mother and Father. This order
apparently was not appealed. Permanency plans were entered for the parents.
On June 9, 2016, DCS filed its petition seeking to terminate Mother’s and Father’s
parental rights. This case was tried in September 2016. Neither Mother nor Father
testified at trial. Several department workers testified to their knowledge of the case.
Mother’s and Father’s convictions for aggravated child neglect were entered into the
record and served as the main basis for DCS’s case against the parents. The Children
lived in multiple foster homes before arriving in their current home. The Children suffer
from behavioral issues which have complicated their finding a permanent home.
In October 2016, the Juvenile Court entered its final judgment terminating
Mother’s and Father’s parental rights. The Juvenile Court found five identical grounds
for each parent: wanton disregard, persistent conditions, severe child abuse, prior
conviction of severe child abuse with a sentence of greater than two years, and
incarceration on a sentence of ten or more years with the children being less than eight
years of age. The Juvenile Court found also that termination of Mother’s and Father’s
parental rights is in the Children’s best interest. We quote as relevant from the Juvenile
Court’s order:
23. The Respondents, [Mother] and [Father], engaged in such conduct prior
to incarceration as to exhibit a wanton disregard for the welfare of the
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children. [Mother] and [Father] have been convicted of aggravated child
neglect of a child 8 years or less. Said Respondents’ conduct in wanton
disregard for the welfare of the children was to commit severe child abuse
against [Jaxson], whereby he sustained injuries including a spiral fracture
on the mid tibia, and failure to thrive.
***
25. The children have been removed from the custody of their parents for
more than six (6) months; the conditions which led to the removal of the
children from the home of [Mother] and [Father] still exist and other
conditions exist which in all probability would cause the children to be
subject to further abuse and/or neglect, making it unlikely that the children
could be returned to [Mother] or [Father] in the near future; there is little
likelihood that these conditions will be remedied at an early date so that the
children can be returned to [Mother] or [Father] in the near future; and the
continuation of the parent or guardian and child relationship greatly
diminishes the children’s chance of an early integration into a stable and
permanent home.
26. The conditions that led to the removal of the children from the home of
[Mother] and [Father] were their physical abuse and neglect of [Jaxson].
27. The conditions that prevent the children’s return to the home of
[Mother] and [Father] are as follows: [Mother] and [Father] are
incarcerated. They did not complete the requirements of the permanency
plans, including submitting to alcohol and drug consultations and following
all recommendations including aftercare; completing forensic parenting
assessments and following all recommendations; and having psychological
evaluations with an approved provider and following all recommendations.
28. [Mother] and [Father] have committed severe child abuse as defined by
Term. Code Ann. § 37-1-102(21) against [Jaxson], who is the subject of
this Petition and who is a sibling to [Kara], a halfsibling to [Jayden], and
who resided in the home of the Respondents.
29. On November 19, 2015 the Juvenile Court of Warren County,
Tennessee found [Jaxson] to be a victim of severe child abuse as defined by
Term. Code Ann. § 37-1-102(21), perpetrated by [Mother] and [Father].
30. [Mother] and [Father] have been sentenced to more than two (2) years
imprisonment for conduct against [Jaxson], a child who is the subject of
this Petition and who is a sibling to [Kara], a half-sibling to [Jayden], and
who was residing permanently with [Kara] and [Jayden]. [Father] was
convicted on October 14, 2015 of aggravated child neglect of a child 8
years of age or less and was sentenced to 15 years. On October 14, 2015,
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[Mother] was convicted of aggravated child neglect of a child 8 years of
age or less and was sentenced to 15 years.
31. [Mother] and [Father] have been confined in a correctional or detention
facility by Order of the Court as a result of a criminal act under a sentence
of ten (10) or more years and the children who are the subject of this
Petition were under eight (8) years of age at the time the sentence was
entered by the Court. On October 14, 2015, [Mother] and [Father] were
each convicted of aggravated child neglect of a child 8 years of age or less
and were each sentenced to 15 years.
***
2. [Mother] and [Father] have committed physical abuse and neglect toward
a child in the household. [Mother] and [Father] were found to be
perpetrators of severe child abuse against [Jaxson] and were convicted of
aggravated child neglect of a child 8 years of age or less.
3. The children are placed in a foster home that wishes to adopt the
children.
4. The children have established a strong bond with the foster parents.
5. A change of caretaker and physical environment is likely to have a
negative effect on the children’s emotional, psychological and/or medical
condition.
6. The children need stability of placement.
Mother and Father appealed the termination of their parental rights to this Court.
Discussion
Neither Mother nor Father raise as issues on appeal each of the grounds found
against them. We are, nevertheless, obliged to review all of the grounds found for
termination of parental rights. Identical grounds were found for both parents. Therefore,
we restate Mother’s and Father’s issues on appeal as follows: (1) whether the Juvenile
Court erred in finding the ground of wanton disregard; (2) whether the Juvenile Court
erred in finding the ground of persistent conditions; (3) whether the Juvenile Court erred
in finding the ground of severe child abuse; (4) whether the Juvenile Court erred in
finding the ground of prior conviction of severe child abuse with a sentence of greater
than two years; (5) whether the Juvenile Court erred in finding the ground of
incarceration on a sentence of ten or more years with the children under eight years of
age; and, (6) whether termination of Mother’s and Father’s parental rights is in the best
interest of the Children. DCS raises its own separate issue of whether Mother’s and
Father’s unsigned notices of appeal render their appeal jurisdictionally deficient.
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We first address DCS’s issue of whether Mother’s and Father’s failure to sign
their notices of appeal renders this appeal jurisdictionally deficient. Tenn. Code Ann. §
36-1-124(d), which took effect July 1, 2016, provides: “Any notice of appeal filed in a
termination of parental rights action shall be signed by the appellant.” In the very recent
case of In re Gabrielle W., No. E2016-02064-COA-R3-PT, 2017 WL 2954684 (Tenn. Ct.
App. July 11, 2017), no appl. perm. appeal filed as of Aug. 4, 2017, this Court considered
the issue of whether an appellant’s failure to sign the notice of appeal in a termination of
parental rights action renders the appeal jurisdictionally deficient. After discussion of
analogous laws and their interpretation in other states, we concluded:
In these cases, dealing with termination of parental rights, the courts
strictly followed the language of the statutes and rules. This state’s statute
is just as unforgiving. Neither in the Tennessee Code Annotated nor in the
Tennessee Rules of Appellate Procedure is there a safety valve or means of
waiver for the requirement of the appellant’s signature. Therefore, based on
the language of the statute, the absence of Guardian’s signature on the
notice of appeal is a jurisdictional default, and the appeal must be
dismissed.3
As the issue regarding the statute has not been previously ruled
upon, in the event our holding is overturned on appeal, we note that even if
the notice of appeal had been signed by Guardian in this case and the court
had jurisdiction over the appeal and considered it on its merits, the evidence
before us would not allow us to overrule the Circuit Court’s ruling.
Id. at *4 (footnote in original but renumbered).
Likewise, in the present case, Mother’s and Father’s failure to sign their notices of
appeal renders this appeal jurisdictionally deficient. We are constrained to dismiss this
appeal for lack of jurisdiction. Even if the appeal were not jurisdictionally deficient, we
would, given this record, affirm the Juvenile Court’s judgment terminating Mother’s and
Father’s parental rights. Our Supreme Court has not yet addressed whether the
requirement of Tenn. Code Ann. § 36-1-124(d) is jurisdictional in nature. Given the need
for timely resolution in parental termination cases and the possibility we have erred on
3
The statute at issue is procedural in nature. “Such statutes apply retrospectively, not only to causes of
action arising before such acts become law, but also to all suits pending when the legislation takes effect,
unless the legislature indicates a contrary intention or immediate application would produce an unjust
result.” Kee v. Shelter Ins., 852 S.W.2d 226, 228 (Tenn. 1993) (citing Saylors v. Riggsbee, 544 S.W.2d
609, 610 (Tenn. 1976)).
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the jurisdictional issue as our Supreme Court has not yet given a definitive answer to the
jurisdictional issue, we proceed next to discuss the merits of the case.
As our Supreme Court has instructed regarding the standard of review in parental
termination cases:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected
by the Due Process Clauses of the federal and state constitutions.4 Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Stanley
v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors .
. . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d
425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S.
745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Angela E., 303
S.W.3d at 250. “When the State initiates a parental rights termination
proceeding, it seeks not merely to infringe that fundamental liberty interest,
but to end it.” Santosky, 455 U.S. at 759, 102 S. Ct. 1388. “Few
consequences of judicial action are so grave as the severance of natural
family ties.” Id. at 787, 102 S. Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S.
102, 119, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996). The parental rights at
stake are “far more precious than any property right.” Santosky, 455 U.S.
at 758-59, 102 S. Ct. 1388. Termination of parental rights has the legal
effect of reducing the parent to the role of a complete stranger and of
“severing forever all legal rights and obligations of the parent or guardian
of the child.” Tenn. Code Ann. § 36-1-113(I)(1); see also Santosky, 455
U.S. at 759, 102 S. Ct. 1388 (recognizing that a decision terminating
parental rights is “final and irrevocable”). In light of the interests and
consequences at stake, parents are constitutionally entitled to
“fundamentally fair procedures” in termination proceedings. Santosky, 455
4
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property,
without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states
“[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or
outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the
judgment of his peers or the law of the land.”
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U.S. at 754, 102 S. Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of
Durham Cnty., N.C., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640
(1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769, 102 S. Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586,
596 (Tenn. 2010). “Clear and convincing evidence enables the fact-finder
to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than
not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1-113(c) provides:
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.
This statute requires the State to establish by clear and convincing proof
that at least one of the enumerated statutory grounds5 for termination exists
and that termination is in the child’s best interests. In re Angela E., 303
S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is
separate from and subsequent to the determination that there is clear and
convincing evidence of grounds for termination.” In re Angela E., 303
5
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
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S.W.3d at 254. Although several factors relevant to the best interests
analysis are statutorily enumerated,6 the list is illustrative, not exclusive.
The parties are free to offer proof of other relevant factors. In re Audrey S.,
182 S.W.3d at 878. The trial court must then determine whether the
combined weight of the facts “amount[s] to clear and convincing evidence
that termination is in the child’s best interest.” In re Kaliyah S., 455
S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent
receives the constitutionally required “individualized determination that a
parent is either unfit or will cause substantial harm to his or her child before
the fundamental right to the care and custody of the child can be taken
away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion
of the statute requires a trial court to make “findings of fact and conclusions
of law as to whether clear and convincing evidence establishes the
existence of each of the grounds asserted for terminating [parental] rights.”
In re Angela E., 303 S.W.3d at 255. “Should the trial court conclude that
clear and convincing evidence of ground(s) for termination does exist, then
the trial court must also make a written finding whether clear and
convincing evidence establishes that termination of [parental] rights is in
the [child’s] best interests.” Id. If the trial court’s best interests analysis “is
based on additional factual findings besides the ones made in conjunction
with the grounds for termination, the trial court must also include these
findings in the written order.” Id. Appellate courts “may not conduct de
novo review of the termination decision in the absence of such findings.”
Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n.15 (Tenn.
Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
6
Tenn. Code Ann. § 36-1-113(i).
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246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at
596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of
A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). In light of the heightened
burden of proof in termination proceedings, however, the reviewing court
must make its own determination as to whether the facts, either as found by
the trial court or as supported by a preponderance of the evidence, amount
to clear and convincing evidence of the elements necessary to terminate
parental rights. In re Bernard T., 319 S.W.3d at 596-97. The trial court’s
ruling that the evidence sufficiently supports termination of parental rights
is a conclusion of law, which appellate courts review de novo with no
presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re
Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions
of law in parental termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness. In re Angela E., 303 S.W.3d at
246.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered).
Clear and convincing evidence supporting any single ground will justify a
termination order. E.g., In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Our Supreme
Court, however, has instructed “that in an appeal from an order terminating parental
rights the Court of Appeals must review the trial court’s findings as to each ground for
termination and as to whether termination is in the child’s best interests, regardless of
whether the parent challenges these findings on appeal.” In re Carrington H., 483
S.W.3d at 525-26 (footnote omitted). As such, we review each of the grounds for
termination.
As pertinent, Tenn. Code Ann. § 36-1-113(g) provides:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and non-exclusive, so that listing conditions, acts or
omissions in one ground does not prevent them from coming within another
ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred;
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***
(3) 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:
(A) The conditions that led to the child’s removal or other conditions that in
all reasonable probability would cause the child to be subjected to further
abuse or neglect and that, therefore, prevent the child’s safe return to the
care of the parent or parents or the guardian or guardians, still persist;
(B) 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 or parents or
the guardian or guardians in the near future; and
(C) 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;
(4) The parent or guardian has been found to have committed severe child
abuse as defined in § 37-1-102, under any prior order of a court or is found
by the court hearing the petition to terminate parental rights or the petition
for adoption to have committed severe child abuse against the child who is
the subject of the petition or against any sibling or half-sibling of such
child, or any other child residing temporarily or permanently in the home of
such parent or guardian;
(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. 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 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;
(6) The parent has been confined in a correctional or detention facility of
any type, by order of the court as a result of a criminal act, under a sentence
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of ten (10) or more years, and the child is under eight (8) years of age at the
time the sentence is entered by the court;
Tenn. Code Ann. § 36-1-113(g) (2014 & Supp. 2016).
Regarding abandonment by an incarcerated parent, Tenn. Code Ann. § 36-1-102
provides:
(1)(A) For purposes of terminating the parental or guardian rights of a
parent or parents or a guardian or guardians of a child to that child in order
to make that child available for adoption, “abandonment” means that:
***
(iv) 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; or . . . .
Tenn. Code Ann. § 36-1-102 (2014 & Supp. 2016).7
We first address Mother’s issues, beginning with whether the Juvenile Court erred
in finding the ground of wanton disregard. Mother argues that the evidence for this
ground is weak and that Mother has no history of violence. This argument ignores the
central fact in this case. Mother was convicted of aggravated child neglect. Mother does
not deny this fact. Moreover, aggravated child neglect by definition adversely impacts
the welfare of the Children, and we deem the conduct prior to incarceration established
herein to be a sort rising to the level of wanton disregard for the welfare of the Children.
The evidence is clear and convincing to support the ground of wanton disregard with
respect to Mother.
7
The statute was amended to modify the definition of the four month period effective July 1, 2016. The
petition seeking to terminate parental rights in this case was filed before the effective date of the
amendment. The outcome would not differ under either version of the statute.
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We next address whether the Juvenile Court erred in finding the ground of
persistent conditions. Mother argues that she could not adhere fully to the permanency
plan because she was incarcerated. That may be, but the Juvenile Court did not find that
DCS had proven the ground of substantial noncompliance with the permanency plan.
While there sometimes may be overlap in the supporting facts, persistence of conditions
is a distinct ground. The Children were removed from Mother’s home for over six
months. The Children had been adjudicated dependent and neglected by court order.
Finally, the record reflects that the conditions that led to removal still exist, or, have
never been remedied. This failure to remedy need not be willful. This Court has stated:
“A parent’s continued inability to provide fundamental care to a
child, even if not willful, ... constitutes a condition which prevents the safe
return of the child to the parent’s care.” In re A.R., No. W2008-00558-
COA-R3-PT, 2008 WL 4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008)
(citing In re T.S. & M.S., No. M1999-01286-COA-R3-CV, 2000 WL
964775, at *7 (Tenn. Ct. App. July 13, 2000)). The failure to remedy the
conditions which led to the removal need not be willful. In re T.S. & M.S.,
2000 WL 964775, at *6 (citing State Dep’t of Human Servs. v. Smith, 785
S.W.2d 336, 338 (Tenn. 1990)). “Where ... efforts to provide help to
improve the parenting ability, offered over a long period of time, have
proved ineffective, the conclusion is that there is little likelihood of such
improvement as would allow the safe return of the child to the parent in the
near future is justified.” Id. The purpose behind the “persistence of
conditions” ground for terminating parental rights is “to prevent the child’s
lingering in the uncertain status of foster child if a parent cannot within a
reasonable time demonstrate an ability to provide a safe and caring
environment for the child.” In re A.R., No. W2008-00558-COA-R3-PT,
2008 WL 4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008) (quoting In re
D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn.
Ct. App. Mar. 3, 2008)).
In re Navada N., 498 S.W.3d 579, 605-06 (Tenn. Ct. App. 2016).
The evidence is clear and convincing that the ground of persistent conditions has been
established with respect to Mother.
We next address whether the Juvenile Court erred in finding the ground of severe
child abuse. In November 2015, the Juvenile Court found that Mother committed severe
child abuse against Jaxson, sibling of Kara and half-sibling of Jayden. No appeal was
taken of this order, and Mother does not challenge this ground. The ground of severe
child abuse was proven against Mother by the standard of clear and convincing evidence.
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As to whether the Juvenile Court erred in finding the ground of prior conviction of
severe child abuse with a sentence of greater than two years, Mother does not challenge
this ground, either. In October 2015, Mother was convicted of aggravated child neglect
and sentenced to fifteen years in prison. The crime for which Mother was convicted,
aggravated child neglect at Tenn. Code Ann § 39-15-402(a)(1), falls within the definition
of severe child abuse at Tenn. Code Ann. § 37-1-102 as required by the applicable
ground for termination of parental rights, Tenn. Code Ann § 36-1-113(g)(5). This ground
is supported by clear and convincing evidence.
We next address whether the Juvenile Court erred in finding the ground of
incarceration on a sentence of ten or more years with the children being under eight years
of age at the time the sentence is entered by the court. Establishment of this ground,
which Mother does not contest, is mathematical. Mother’s sentence exceeds ten years
and the Children were under eight years of age when Mother was convicted. This ground
is supported by clear and convincing evidence.
The final issue we address with respect to Mother is whether termination of
Mother’s parental rights is in the best interest of the Children. Mother argues that the
Juvenile Court failed to evaluate adequately what effect severance of family relationships
would have on the Children’s best interest. Mother points to evidence showing that
certain of the Children could recognize family members. However, second-guessing
placement options with family members is not a basis for defeating a petition to terminate
parental rights. We have stated: “[T]he Court held that the issue of the placement of the
child with a relative should have been raised in the dependency and neglect proceedings,
rather than in termination proceedings, and that the failure to place the child with a family
member is not a basis to defeat a petition to terminate parental rights.” In re Noel B.F.,
No. M2010-02343-COA-R3-PT, 2011 WL 3610427, at *8 (Tenn. Ct. App. Aug. 16,
2011), no appl. perm. appeal filed. The Juvenile Court made a number of findings
relative to the Children’s best interest, and the evidence does not preponderate against
these findings. Termination of Mother’s parental rights to the Children is supported by
clear and convincing evidence.
We now address Father’s issues. Father does not challenge any particular ground
for termination on appeal. Rather, Father argues that DCS failed to exercise reasonable
efforts to reunify the family. However, our Supreme Court has addressed this very issue
and concluded that DCS is not required, as a general rule with one exception not
applicable here as to grounds, to prove that it made reasonable efforts to reunify the
family. Our Supreme Court has stated: “[I]n a termination proceeding, the extent of
DCS’s efforts to reunify the family is weighed in the court’s best-interest analysis, but
proof of reasonable efforts is not a precondition to termination of the parental rights of
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the respondent parent.” In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). This issue
is, therefore, without merit.
The five grounds found for termination against Father are identical to those for
Mother. Regarding those grounds rooted in severe abuse and sentences of certain
lengths, the outcome is rote and mathematical, therefore it is understandable that Father
did not raise these issues. Otherwise, the grounds again are rooted in the abuse of Jaxson.
We have reviewed the record carefully, and find that clear and convincing evidence
supports each of the five grounds found against Father.
We next address whether termination of Father’s parental rights is in the best
interest of Jaxson and Kara. Father makes two arguments: (1) that he physically was
unable to comply with certain of the best interest factors of Tenn. Code Ann. § 36-1-
113(i) because of his incarceration, and (2) that he is the biological father, and somehow
this inherently makes it in Jaxson and Kara’s best interest that his parental rights to them
be preserved. We find neither argument availing. The evidence does not preponderate
against the Juvenile Court’s findings relative to best interest. Termination of Father’s
parental rights to Jaxson and Kara is supported by clear and convincing evidence.
In summary, Mother’s and Father’s failure to sign their notices of appeal as
required by Tenn. Code Ann. § 36-1-124(d) renders this appeal jurisdictionally deficient.
This appeal is, therefore, dismissed. However, upon review of this record, even if we are
in error as to the jurisdictional issue and this appeal is jurisdictionally valid, the Juvenile
Court’s judgment terminating Mother’s and Father’s parental rights would be affirmed.
Conclusion
The appeal of the judgment of the Juvenile Court is dismissed for lack of
jurisdiction, and this cause is remanded to the Juvenile Court for collection of the costs
below. The costs on appeal are assessed one-half equally against the Appellants,
Jonathan C. and Dara C., and their surety, if any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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