DHS v. Rudd ( 1998 )

DEPARTMENT OF HUMAN )
SERVICES, and )
THE ASSOCIATION FOR )
GUIDANCE, AID, PLACEMENT ) Appeal No.
AND EMPATHY ) 01-A-01-9712-JV-00745
)
Petitioners/Appellees )
)
vs. ) Davidson Juvenile
) Nos. 9519-18567,
ROBERT RUDD, ) 28568 & 18569
)
Respondent/Appellant ) FILED
September 23, 1998
COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE DAVIDSON COUNTY JUVENILE COURT
AT NASHVILLE, TENNESSEE
THE HONORABLE ANDREW SHOOKOFF, JUDGE
M. ALLEN EHMLING
McClellan, Powers, Ehmling &Dix, P.C.
116 Public Square
Gallatin, TN 37066
ATTORNEY FOR THE PETITIONERS/APPELLEES
J. MICHAEL O’NEIL
P.O. Box 60125
Nashville, TN 37206
ATTORNEY FOR THE RESPONDENT/APPELLANT
AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE
OPINION
This case represents a father’s appeal from an order terminating his
parental rights with regard to three minor children. On appeal, the father raises
the following issue: “Whether a relative can enjoy the same placement
preference as a parent where termination of parental rights and non-relative
adoption are the only alternative to relative placement.” Mr. Rudd attempts to
advance the position that as long as a parent or parental relative (in this case a
paternal grandmother) can provide a stable safe environment for a dependent and
neglected child, termination of parental rights is not a viable option under the
statutes. Appellant seeks to rely on the parental relative-preference noted in the
Title 37, Chapter 2. Tenn. Code. Ann. § 37-2-403 (1996). No statement of facts
was filed with the appeal. See Tenn. R. App. P. 24 (1998). Due to appellate
counsel’s able argument regarding the rights at stake, this court issued an order
to consider this case on the briefs and technical record alone.
The three children in question were all born to Jennifer Pinson. At
different times and in different combinations, each was surrendered to the court
pursuant to unopposed third-party petitions for temporary custody. Indeed, this
case represents numerous third-party petitions, custody hearings and parenting
plans regarding the three children. The first occurred after Ms. Pinson violated
her probation with respect to a sentence for cocaine. This petition was filed in
July of 1995. AGAPE became involved in July 1996 when custody of two of the
children was assigned to the association. From the record it appears that several
individuals petitioned the juvenile court for temporary custody of the three
children. The paternal grandmother was successful in obtaining custody of one
of the three. Other petitions, one by a friend of the Mother, Jennifer Pinson; one
by the maternal aunt; two by a member of AGAPE; and one petition by the
AGAPE foster parent, who was awarded initial custody of the oldest and
youngest of the three. From the record it appears that the person who exercised
the least parental rights in these children’s lives is the appellant. Yet he appeals
the order below.
2
At trial, Judge Shookoff specifically found:
11. That both parents are homeless and the majority of the
time that the children were in foster care the natural mother
and/or the natural father resided in the home of the paternal
grandmother, EDNA McKEEVER, and the court finds that
Ms. McKeever’s home was a home where there was repeated
illegal activity in the home, including the use of illegal
narcotics, which would render the parent consistently unable
to care for the child.
12. That the Court finds that Ms. EDNA McKEEVER
knew about the natural parent’s drug use and took no
efforts to stop the drug use in her home and therefore,
the children were in high risk of being injured or being
exposed to criminal conduct.1
Although several placement hearings were made due to the third-party
petitions for custody of the children involved, by Appellant’s own admission, the
only parties participating in the termination action before the trial court were the
mother, the father, the guardian ad litem, and the petitioner AGAPE. This court
accords to the findings in the above-referenced order, the presumption available
under Rule 13 of the Tennessee Rules of Appellate Procedure. See Nash-
Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996)(citing the rule in Aaron
v. Aaron, 909 S.W.2d 408, 410 (Tenn.1995)). Viewing these in that context with
no other record upon which to proceed, this court can find no abuse of discretion
at the trial level.
The court’s finding with regard to Mr. Rudd will be upheld on appeal
absent a showing of abuse of discretion. Tenn. R. App. P. 13(d). See e.g. In Re
Adoption of Self, 836 S.W.2d 581, 582 (Tenn. Ct. App. 1992). The record shows
that during the temporary custodial arrangement Appellant exercised only
sporadic visitation, did not attempt to seek treatment even though offered by the
Appellee, and continued in a narcotic lifestyle which endangered the safety of
the children. When parenting conferences were held, Jennifer Pinson attended
more often than Appellant. In truth, the appellant, after legitimizing the children,
made only token support payments, and made no other attempts to establish his
1
This order represents the culmination of over two years of custody hearings and court
actions relating to the three children involved. It is this order, entered November 23, 1997,
and bearing Judge Shookoff's signature which represents the appellate court's interpretation
of the action appealed from.
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own home as a stable permanent environment for the children in question. As
for Ms. McKeever, the record shows that she was aware of her son’s drug use
and allowed such behavior in her home. The record shows that she was, during
the pendency of this cause, cohabitating with a Mr. David Johnson, who by his
own admission had a recent criminal record and wasn’t interested in becoming
a father. Several memoranda and orders appear in this record with regard to the
respective environments offered by the Appellant and his mother. These
memoranda, as a whole, present a picture fraught with instability and danger to
which no child should be subjected.
As a result, the juvenile court’s order insofar as Appellant’s right to
determine the placement preference, should be and is hereby affirmed in all
respects. It is unnecessary to proceed to the question raised in Appellant’s brief,
i.e., “If the paternal grandmother’s home presents no danger, does Tennessee
jurisprudence and statutory law mandate that the children be placed with the
grandmother and a termination of parental rights fail?” The court specifically
found that the grandmother’s home did present a danger, and we find no abuse
of discretion in that finding. Likewise, the grandmother is not a party to this
appeal.
The cause is remanded to the juvenile court for further proceedings not
inconsistent with this opinion. Costs in this appeal are taxed against Appellant.
_____________________________________
___
WILLIAM B. CAIN, JUDGE
CONCUR:
_____________________________________
HENRY F. TODD, P.J., M.S.
_____________________________________
BEN H. CANTRELL, JUDGE
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